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Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 5675-5677 OF 2007

Chairman, All India Railway Rec. Board & Anr.              ﾁ Appellant(s)

Versus

K. Shyam Kumar & Ors.                    ﾁ Respondent(s)

JUDGMENT

K.S. RADHAKRISHNAN, J.

We are in these cases concerned with  the validity of  an order  

dated  04.06.2004  issued  by  the  Railway  Board  directing  the  Railway  

Recruitment  Board  (in  short  RRB)  to  conduct  a  re-test  for  recruitment  to  

Group-D posts, for those candidates who had obtained minimum qualifying  

marks in the first written examination against which large scale irregularities  

were noticed.

2. The  RRB  vide its  employment  notification  1/2003  dated  

13.06.2003  invited  applications  for  filling  up  Group  ‘D’  posts  in  the  South

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Central  Railway  Zone,  Secunderabad.   In  response  to  the  notification  

10,02,909 applications were received by the RRB out of which 5,86,955 were  

found eligible and call letters were sent to them for appearing in the written  

test  held  at  various  centres  from  09.11.2003  to  21.11.2003.  3,22,223  

candidates appeared for the written test, out of which 2690 were selected to  

be called for Physical Efficiency Test (PET) held on 03.02.2004 to 12.02.2004.  

Candidates who qualified in the PET were called for verification of original  

certificates from 04.04.2004 to 12.02.2004.  During verification it was noticed  

that  certain  malpractices  had  taken  place  in  the  written  examination.  

Meanwhile, several complaints were also received by the RRB stating  that  

certain candidates had indulged in mass copying in some centers, including  

leakage of question papers and impersonation of certain candidates.  Since  

large scale irregularities and malpractices were noticed it was decided to refer  

the  matter  to  the  State  Vigilance  Department.   The  Vigilance  Department  

conducted a preliminary enquiry and submitted its report which was placed  

before the Tribunal as well as before the High Court.  Portions of the report  

extracted in the judgment of the High Court  prima facie revealed leakage of  

question papers, mass copying and impersonation of candidates in the written  

test.  Report also indicated the possibility of involvement of some employees  

of Railways and outsiders in the malpractices detected.  Vigilance Department

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also  recommended  that  the  matter  be  referred  to  the  Central  Bureau  of  

Investigation(CBI).

3. The vigilance report and the various complaints  were examined  

by the Railway Board and the  Board after discussing the matters with the  

RRB gave a direction vide its letter dated 04.06.2004 to conduct a re-test for  

those candidates who had obtained minimum qualifying marks in the written  

examination. The operative portion of the order reads as follows:-

“Board have gone into complete details of the matter in view  of the nature of malpractices / irregularities involved, it has been  decided that candidates obtaining minimum qualifying marks may  be subjected to another written examination by  conducting the  same  in  good  educational  institution  under  tight  control  and  supervision.  This would ensure the exclusion of those, who might  have  secured  undue  advantage  in  the  earlier  examination.  Thereafter,  candidates  may be called  for  PET on the  basis  of  fresh merit list irrespective of the fact whether some of them had  appeared in the PET held on February 2004”.

4. Railway  Board  also  ordered  that  the  cases  of  the  candidates  

referred  to  GEQD  including  those  found  guilty  during  the  course  of  

investigation by the Vigilance or CBI be dealt with as per the extant rules at  

the time of preparation of the final panel or later stage.  RRB was directed to  

take steps to conduct written examination and PET at the earliest.  Railway

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Board vide its letter dated 1st September, 2004 directed the RRB to go ahead  

with the examination scheduled on 26.09.2004.

5. Aggrieved by the order  dated 04.06.04 certain  candidates  who  

had  taken  the  first  written  examination  filed  O.A.  No.975/2004  before  the  

Central  Administrative  Tribunal,  Hyderabad  questioning  the  decision  to  

conduct re-test and also sought for a declaration that they are eligible to be  

appointed  to  Group  ‘D’  posts  in  the  South  Central  Railway  Zone,  

Secunderabad pursuant to the selection held in the month of February, 2004.  

Alternatively   it  was  contended  that  even  if   the  Board  had the  power  to  

conduct second stage written examination it should be confined only  to 2690  

candidates who had qualified in the earlier written examination.  The stand of  

the Board was that, there was no illegality in ordering a re-test and para 18.1  

of  the  selection  procedure  empowered  the  Board  to  do  so.   Referring  to  

paragraph 18.4 of the employment notice No.1/2003 it  was contended that  

merely qualifying in the written and / or PET  a candidate would not get any  

vested  right  for  appointment,  especially  since  no  final  list  or  panel  was  

published.  Reference was also made to the vigilance report and the  report of  

the  CBI  which  prima  facie  revealed  serious  malpractices  including  mass  

copying,  leakage  of  question  papers  and  impersonation  in  the  written  

examination.  

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6. The Tribunal  found no irregularity in the decision taken by the  

Board in conducting a re-test which was taken after referring to the vigilance  

report and other relevant materials.  Further it was noticed that the majority of  

the  candidates  had  not  objected  to  that  course  and  the  applicants  had  

approached the Tribunal only at the eve of the re-test.  Further it was also  

noticed the final select list was never published, hence no legal rights of the  

applicants  were  infringed.  O.A.  No.975/2004  was,  therefore  dismissed  on  

02.09.2004. O.A.  No.1008/2004 filed by few other candidates who had not  

taken the re-test claiming identical reliefs was also dismissed by the Tribunal  

on 23.09.2004.   

7. Aggrieved by the orders passed by the Tribunal in OA No.975 of  

2004  and OA No.1008 of  2004,  Writ  Petition  No.17144 of  2004 and  Writ  

Petition No.19354 of 2004 were preferred before the High Court of Andhra  

Pradesh.  Before the High Court it was contended that  the decision to cancel  

the written test was arbitrary, unreasonable and violative of Articles 14,16 and  

21 of the constitution of India. Further it was also pointed out that even if the  

allegation of   mass copying  in certain centres was true, those candidates  

could have been identified and there was no justification to order a re-test for

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the  other  candidates,  who  had  obtained  minimum qualifying  marks  in  the  

written test.   

8. The  High  Court  found  no  reasons  to  cancel  the  first  written  

examination and to conduct a re-test for 2690 candidates who got minimum  

qualifying  marks  in  the  written  test  which  included  62  candidates  against  

whom  there  were  serious  allegations  of  impersonation.  Referring  to  the  

vigilance report, the High Court  concluded that the controversy virtually boils  

down  to identifying 62 candidates whose cases stood referred to CEQD/HYD  

for their certification and hence the process of recruitment could be proceeded  

with for the rest of the candidates.  Further it was also held by the High Court  

that the materials available to support the complaint  of leakage of question  

papers were limited  and had no nexus to the large scale irregularities, noticed  

by the Railways.   The High Court  also noticed that  when the order dated  

04.06.2004 was passed only the vigilance report was available with the Board  

which was insufficient, to support that order and the materials collected by the  

CBI subsequently could not be relied upon to support that decision. Further it  

was  also  pointed out  that  no copy of  the  vigilance report  was  also  made  

available to the petitioners and the decision taken to conduct a re-test was  

arbitrary, illegal and unreasonable.

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9. The  High  Court  rejected  the  contentions  that  the  order  was  

politically motivated and  mala fide but  applying  Wednesbury’s principle of  

unreasonableness  the Court held that the decision of the Board was illegal,  

arbitrary and unreasonable and  directed the Board to finalise the selection on  

the basis of the first written test and to issue appointment orders to all the  

candidates except the 62 candidates against whom there were allegations of  

impersonation.

10. Aggrieved by the  above judgment  the RRB has come up with  

these appeals.  Shri D.K. Thakur, learned counsel appearing for the Board  

submitted that the High Court has committed a grave error in sustaining the  

first written test conducted by the Board in spite of large scale irregularities  

and illegalities  detected during  the course of  the  enquiry  by  the  Vigilance  

Department and subsequently by the CBI.  Learned counsel submitted in the  

facts and circumstances of the case the best option available to the Railway  

Board  was  to  conduct  a  re-test  for  those  candidates  who  had  obtained  

minimum qualifying marks in the first written test, since allegations of mass  

copying,  leakage  of  question  papers  and  impersonation  were  noticed.  

Learned counsel also stated that the petitioners themselves had pointed out  

before the Tribunal that if a re-test is conducted, the same be confined only to  

those 2690 candidates.  Learned counsel also submitted that the High Court

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has wrongly applied the principle of Wednesbury unreasonableness. Learned  

counsel placed reliance on the judgments of this Court in  Union of India  v.  

Tarun K. Singh,  (2003) 11 SCC 768; B. Ramanjini  v. State of A.P.  (2002) 5  

SCC 533; Bihar School Examination Board v. Subhas Chandra Sinha (1970)  

1 SCC 648;  State of Maharashtra v. Prabhu (1994) 2 SCC 481; Madhyamic  

Shiksha Mandal, M.P. v. Abhilash Shiksha Prasar Samiti (1998) 9 SCC 236 in  

support of his various contentions.

11. Learned counsel appearing for the respondents tried to support  

the judgment of the High Court contending that the best course open to the  

Railways was to complete the recruitment process based on the first written  

test  after  ordering inquiry with respect  to the 62 candidates against  whom  

there  were  allegations  of  impersonation  rather  than  conducting  a  re-test.  

Learned counsel  also pointed out  that  the report  of  the Vigilance was  not  

made available to the respondents and, therefore, the action of the Railway  

Board was illegal, arbitrary and violative of the principles of natural justice.  In  

support  of  his  contentions  learned  counsel  placed  reliance  on  various  

decisions of this Court viz., K. Vijayalakshmi  vs.  Union of India (1998) 4 SCC  

37;  Asha Kaul  vs.  State of Jammu and Kashmir (1993) 2 SCC 573;  N.T.  

Davin Katti  vs.  Karnanataka Public Service Commission (1990) 3 SCC 157;   

Union of India  vs.  Rajesh P.U.  (2003) 7 SCC 285;  Munna Roy  vs.  Union

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of India  (2000) 9 SCC 283;  Babita Prasad  vs.  State of Bihar  (1993) Suppl.3  

SCC 268;  Onkar Lal Bajaj  vs.  Union of India (2003) 2 SCC 673.  

12. We heard learned counsel on either side at length and we have  

also gone through the extract of the vigilance report which appears in para 15  

of  the  judgment  of  the  High  Court.   Report  indicated  that  100  to  200  

candidates were suspected to have obtained answers for the questions three  

hours before the examination through some middleman who had arranged  

answers  by  accepting  huge  bribe.   Apart  from  the  serious  allegations  of  

impersonation in respect of 62 candidates it was stated on close scrutiny of  

the answer sheets at least six candidates had certainly adopted unfair means  

to secure qualifying marks in the written test.  Report says that investigation  

prima facie  established leakage of  question papers to a sizable number of  

candidates  for  the  examination  held  on  23.11.2003.   Further,  it  was  also  

noticed that leakage of question paper was pre-planned and widespread and  

the possibility of involvement of Railway / RRB staff and also outsiders could  

not be ruled out and hence, recommended that the matter be referred to CBI.  

The High Court also referred to the reports of the superintendent of Police  

PEI(A)/2004/  CBI,  Hyderabad  which  suggested  certain  measures  to  be  

adopted by the Board to rule out such malpractices in future.  Reports of the  

CBI of course, were not available with the Railway Board when they took the

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decision on 04.06.2004 to conduct a re-test but only the vigilance report and  

the complaints received.   

13. We  are,  in  this  case,  primarily  concerned  with  the  question  

whether the High Court was justified in interfering with the decision taken by  

the  Board  in  conducting  a  re-test  for  those  who  had  obtained  minimum  

qualifying marks in the first written test and directing the Board to go ahead  

with the recruitment process on the basis of first written test against which  

there were serious allegations of irregularities and malpractices.  When this  

matter  came up for  admission before this  Court  on 20.01.2006,  this  Court  

permitted the Board to declare the result of the second test and  proceed to  

appoint  the  selected  candidates,  however,  it  was  ordered  that  the  

appointments  made  be  subject  to  the  result  of  these  appeals.   We  are  

informed  that  candidates  who  got  qualified  in  the  re-test  were  already  

appointed and have joined service.

14. We  will  first  examine  whether  the  High  Court  was  justified  in  

directing the Board to go ahead with the recruitment process  based on the  

first written test in the wake of the report of the Vigilance and the materials  

collected by the CBI subsequently.  Report of the Vigilance has prima facie  

established that  the allegations  of  leakage of  question papers,  large scale

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impersonation of candidates, mass copying etc. was true.  Possibility of the  

involvement of the staff of Railways and  outsiders was also not ruled out by  

the Vigilance.  In such circumstances, we fail to see how the High Court has  

concluded  that  there  is  no  illegality  in  going  ahead  with  the  recruitment  

process on the basis of the first written test.  We may indicate that the Railway  

Board had three alternatives viz., (1) to cancel the entire written test, and to  

conduct a fresh written test inviting applications afresh;  (2) to conduct a re-

test  for those candidates who had obtained minimum qualifying marks in the  

first written test; and (3) to go ahead with the first written test (as suggested by  

the High Court),  confining the investigation to 62 candidates against whom  

there were serious allegations of impersonation.

15. The High Court applying the Wednesbury’s principle accepted the  

last alternative by rejecting the decision by the Railway Board to conduct a re-

test for those candidates who had obtained minimum qualifying marks in the  

first written test.  We are of the view that the High Court has wrongly applied  

the above principle and misdirected itself in directing the Board to accept the  

third alternative.  We will examine the decision of the High Court by applying  

the  principle  of  Wednesbury unreasonableness  as  well  as  the  doctrine  of  

proportionality. Before that let us examine both the concepts at some length.

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16. Judicial  review conventionally is concerned with the question of  

jurisdiction and natural justice and the Court is not much concerned with the  

merits of the decision but how the decision was reached.  In Council of Civil   

Service Unions Vs. Minister of State for Civil Service (1984) 3 All ER 935 the  

(GCHQ Case) the House of Lords rationalized the grounds of judicial review  

and ruled that the basis of judicial  review could be highlighted under three  

principal  heads,  namely,  illegality,  procedural  impropriety  and  irrationality.  

Illegality as a ground of judicial review means that the decision maker must  

understand correctly the law that regulates his decision making powers and  

must give effect to it.  Grounds such as acting  ultra vires, errors of law and/or  

fact,  onerous conditions,  improper purpose,  relevant  and irrelevant  factors,  

acting in bad faith, fettering discretion, unauthorized delegation, failure to act  

etc., fall under the heading “illegality”.  Procedural impropriety may be due to  

the failure to comply with the mandatory procedures such as breach of natural  

justice,  such as audi alteram partem, absence of bias, the duty to act fairly,  

legitimate expectations, failure to give reasons etc.  

17. Ground  of  irrationality  takes  in  Wednesbury unreasonableness  

propounded in  Associated Provincial Picture Houses Limited v.  Wednesbury  

Corporation (1947)2 All ER 680,  Lord Greene MR alluded to the grounds of

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attack which could be made against the decision, citing unreasonableness  as  

an ‘umbrella concept’  which covers the major heads of review and pointed  

out  that  the court  can  interfere  with  a  decision if  it  is  so absurd that  no  

reasonable decision maker would   in law come to it.  In GCHQ Case (supra)  

Lord Diplock fashioned the principle of  unreasonableness and preferred to  

use the term irrationality as follows:

“By ‘irrationality’ I mean what can now be succinctly referred to as  “Wednesbury’s unreasonableness”, ……. It applies to a decision  which  is  so  outrageous  in  its  defiance  of  logic  or  of  accepted  moral  standards  that  no  sensible  person  who  had  applied  his  mind to the question to be decided could have arrived at it.”

18. In  R.  v.  Secretary  of  State  for  the Home Department ex parte   

Brind  (1991)  1  All  ER  720,  the  House  of  Lords  re-examined  the  

reasonableness of the exercise of the Home Secretary’s discretion to issue a  

notice  banning  the  transmission  of  speech  by  representatives  of  the  Irish  

Republican  Army  and  its  political  party,  Sinn  Fein.   Court  ruled  that  the  

exercise of the Home Secretary’s power did not amount to an unreasonable  

exercise  of  discretion  despite  the  issue  involving  a  denial  of  freedom  of  

expression.  House of Lords however, stressed that in all  cases  raising a  

human rights issue proportionality is the appropriate standard of review.  The  

House of Lords in  R (Daly) v.  Secretary of State for the Home Department  

(2001)  2  AC  532  demonstrated  how  the  traditional  test  of  Wednesbury

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unreasonableness  has  moved  towards  the  doctrine  of  necessity  and  

proportionality.  Lord Steyn noted that the criteria of  proportionality are more  

precise and more sophisticated than traditional grounds of review and went on  

to outline three concrete differences between the two:-

(1) Proportionality may require the reviewing Court  to assess  the  balance  which  the  decision  maker  has  struck,  not  merely  whether  it  is  within  the  range  of  rational  or  reasonable decisions.

(2) Proportionality test  may  go  further  than  the  traditional  grounds of review in as much as it may require attention to  be directed to the relative weight accorded to interests and  considerations.  

(3) Even  the  heightened  scrutiny  test  is  not  necessarily  appropriate to the protection of human rights.   

19. Lord Steyn also felt  most cases would be decided in the same  

way whatever approach is adopted, though conceded for human right cases  

proportionality is the appropriate test.   

20. The  question  arose  as  to  whether  doctrine  of  proportionality  

applies only where fundamental human rights are in issue or whether it will  

come to provide all aspects of judicial review.  Lord Steyn in  R. (Alconbury

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Development Limited) v.  Secretary of  State for the Environment,  Transport   

and the Regions (2001) 2 All ER 929 stated as follows:-

“I consider that even without reference to the Human Rights Act,  1998  the  time  has  come  to  recognize  that  this  principle  (proportionality) is part of English administrative law not only when  Judges are dealing with  Community acts but also when they are  dealing  with  acts  subject  to  domestic  law.   Trying  to  keep the  Wednesbury principle  and  proportionality in  separate  compartments seems to me to be unnecessary and confusing”.  

21. Lord Steyn was of the opinion that the difference between both  

the principles was in practice much less than it was sometimes suggested and  

whatever principle was applied the result in the case was the same. Whether  

the proportionality will ultimately supersede the concept of reasonableness or  

rationality was also considered by  Dyson Lord Justice in R. (Association of  

British Civilian  Internees: Far East Region) v. Secretary of State for Defence  

[2003] QB 1397 and stated as follows:-

“We have difficulty  in seeing what  justification  there now is  for  retaining  Wednesbury test ….. but we consider that it  is not for  this Court to perform burial rights.  The continuing existence of the  Wednesbury test has been acknowledged by House of Lords on  more than one occasion.  A survey of the various judgments of  House of Lords, Court of Appeals, etc. would reveal for the time  being both the tests continued to co-exist.”

22. Position in English Administrative Law is that both the tests  that  

is. Wednesbury and proportionality continue to co-exist and the proportionality

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test is more and more applied, when there is violation of human rights, and  

fundamental  freedom and the  Wednesbury finds its  presence more on the  

domestic  law  when  there  is  violations  of  citizens  ordinary  rights.  

Proportionality principle has not so far replaced the Wednesbury principle and  

the time has not reached to say good bye to Wednesbury much less its burial.  

23. In Huang case (2007) 4 All ER 15 (HL), the House of Lords was  

concerned with the  question whether  denial  of  asylum  infringes Article 8  

(Right to Respect Family Life) of the Human Rights Act, 1998. House of Lords  

ruled that it was the duty of the authorities when faced with individuals who did  

not qualify under the rules to consider whether the refusal of asylum status  

was unlawful on the ground that it violated the individual’s right to family life. A  

structured proportionality test has emerged from that decision in the context of  

the  violation  of  human rights.    In  R (Daly) (supra)   the  House  of  Lords  

considered both common law and Article 8 of the convention and ruled that  

the  policy  of  excluding  prisoners  from  their  cells  while  prison  officers  

conducted  searches,  which  included  scrutinizing  privileged  legal  

correspondence was unlawful.  

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24. Both  the  above-mentioned  cases,  mainly  concerned  with  the  

violation of human rights under the Human Rights Act, 1998 but demonstrated  

the  movement  away  from  the  traditional  test  of  Wednesbury  

unreasonableness  towards the test of  proportionality.   But it  is not safe to  

conclude  that  the  principle  of  Wednesbury  unreasonableness  has  been  

replaced by the doctrine of proportionality.

25. Justice S.B. Sinha, as His Lordship then was, speaking for the  

Bench in State of U.P. v.  Sheo Shanker Lal Srivastava and Others (2006) 3  

SCC 276 after referring to the judgment  of the Court of appeal in  Huang v.  

Secretary  of  State  for  the  Home  Department  (2005)  3  All  ER  435,  R. v.  

Secretary of State of the Home Department, ex parte Daly (2001) 3 All ER  

433 (HL)  opined that  Wednesbury  principle may not  now be  held to be  

applicable  in  view  of  the  development  in  constitutional  law  and  held  as  

follows:-

“24. While saying so, we are not oblivious of the fact that the  doctrine  of  unreasonableness  is  giving  way  to  the  doctrine  of  proportionality.  

25. It is interesting to note that the Wednesbury principles may  not now be held to be applicable in view of the development in  constitutional law in this behalf.  See, for example, Huang v. Secy.  of State for the Home Deptt. wherein referring to R. v. Secy. of  State of the Home Deptt., ex p Daly, it  was held that in certain

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cases, the adjudicator may require to conduct a judicial exercise  which is not merely more intrusive than Wednesbury, but involves  a full-blown merit judgment, which is yet  more than ex p. Daly,  requires  on  a  judicial  review  where  the  court  has  to  decide  a  proportionality issue.”

26. Sheo Shanker Lal Srivastava case was later followed in  Indian  

Airlines Ltd. v.  Prabha D. Kanan (2006) 11 SCC 67.   Following the above  

mentioned two judgments in Jitendra Kumar And Others v. State of Haryana  

and Another (2008) 2 SCC 161,  the Bench has referred to a passage in HWR  

Wade and CF Forsyth on Administrative Law, 9th Edition. (2004), pages 371-

372 with the caption  “Goodbye to Wednesbury” and quoted from the book  

which reads as follows:-

“The Wednesbury doctrine is now in terminal decline but the  coup de grace has not yet fallen, despite calls for it from very high  authorities” and opined that in some jurisdictions the doctrine of  unreasonableness is giving way to doctrine of proportionality.”  

27. Indian Airlines Ltd.’s case and  Sheo Shanker Lal  Srivastava’s  

case (supra) were again followed in State of Madhya Pradesh and Others v.  

Hazarilal, (2008) 3 SCC 273 and the Bench opined as follows:-

“Furthermore  the  legal  parameters  of  judicial  review  have  undergone a change.  Wednesbury   principle of unreasonableness    has been replaced by the doctrine of   proportionality  .  ”.  

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28.           With due respect, we are unable  to subscribe to that view, which is  

an overstatement of the English Administrative Law.   

29. Wednesbury principle of unreasonableness as such has not been  

replaced by the doctrine of  proportionality though that test is being applied  

more and more  when violation of human rights is alleged.  H.W.R. Wade &  

C.F. Forsyth in the 10th Edition of Administrative Law (2009), has omitted the  

passage quoted by this court in Jitender Kumar case and stated as follows:

“Notwithstanding the apparent persuasiveness of these views the  coup  de  grace  has  not  yet  fallen  on  Wednesbury  unreasonableness.   Where  a  matter  falls  outside  the  ambit  of  1998  Act,  the  doctrine  is  regularly  relied  upon  by  the  courts.  Reports  of  its  imminent  demise  are  perhaps  exaggerated.”  (emphasis applied).   

30. Wednesbury and  Proportionality -   Wednesbury   applies  to   a  

decision which is so reprehensible in its defiance of logic or of accepted moral  

or ethical standards that no sensible person who had applied his mind to the  

issue to be decided could have arrived at it.  Proportionality as a legal test is  

capable of being  more precise and fastidious than a reasonableness test as  

well  as  requiring  a  more intrusive  review of  a  decision  made by a  public  

authority which requires the courts to ‘assess the  balance or equation’ struck

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by  the  decision  maker.   Proportionality test  in  some  jurisdictions  is  also  

described as the “least injurious means” or “minimal impairment” test so as to  

safeguard  fundamental  rights  of  citizens  and  to  ensure  a  fair   balance  

between individual rights and public interest.  Suffice to say that there has  

been an overlapping of all these tests in its content and structure, it is difficult  

to  compartmentalize or  lay down a straight  jacket  formula and to say that  

Wednesbury has met with  its  death knell   is  too tall  a statement.  Let  us,  

however,  recognize  the  fact  that  the  current  trend  seems  to  favour  

proportionality test but  Wednesbury has not met with its judicial burial and a  

state burial, with full honours is surely not to happen  in the near future.

31.  Proportionality, requires the Court to judge whether action taken  

was really needed as well as whether it was within the range of courses of  

action which could reasonably be followed.  Proportionality is more concerned  

with the aims and intention of the decision-maker and whether the decision-

maker has achieved more or less the correct balance or equilibrium.  Courts  

entrusted with the task of  judicial  review has to examine whether  decision  

taken by the authority is proportionate, i.e. well balanced and harmonious, to  

this extent court may indulge in a merit review and if the court finds that the  

decision is proportionate, it seldom interferes with the decision taken and if it

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finds that the decision is disproportionate i.e. if the court feels that it is not well  

balanced or harmonious and does not stand to reason it may tend to interfere.  

32. Leyland and Anthony on Textbook on Administrative Law (5th edn.  

OUP, 2005) at p.331 has amply put as follows:   

“Proportionality works  on  the  assumption  that  administrative  action ought not to go beyond what is necessary to achieve its  desired results (in every day terms, that  you should not use a  sledgehammer to crack a nut)  and in contrast  to irrationality is  often understood to bring the courts much closer to reviewing the  merits of a decision”.   

33. Courts have to develop an indefeasible and principled approach  

to proportionality till that is done there will always be an overlapping between  

the traditional grounds of review and the principle of  proportionality and the  

cases would continue to  be decided in the same manner whichever principle  

is adopted. Proportionality as the word indicates has reference to variables or  

comparison, it enables the Court to apply the principle with various degrees of  

intensity and offers a potentially deeper inquiry into the reasons, projected by  

the decision maker.

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34. We shall  now test  the validity of  the order impugned  applying  

both the principles.

35. Application of the principles

        We have already indicated the three alternatives available to the  

decision-  maker  (Board)  when  serious  infirmities  were  pointed  out  in  the  

conduct  of  the  first  written  test.   Let  us  examine  which  was  the  best  

alternative, the Board could have accepted applying the test of  Wednesbury  

unreasonableness.  Was the decision taken by the Board to conduct a re-test  

for those candidates who had obtained minimum qualifying marks in the first  

written  test  so  unreasonable  that  no reasonable  authority could  ever  have  

decided so and whether the Board before reaching that conclusion had taken  

into account the matters which they ought not to have taken into account or  

had refused to take into account the matters that they ought to have taken into  

account and the decision taken by it was so unreasonable that no reasonable  

authority  could ever  have  come to  it?   Judging the decision taken by the  

Board  applying  the  standard  laid  down  in  the  Wednesbury principle  

unreasonableness,  the first alternative that is the decision to cancel the entire  

written  test  and  to  conduct  a  fresh  written  test  would  have  been  time  

consuming  and  expensive.   Initially  10,02,909  applications  were  received  

when advertisement  was issued by the Board out  of  which  5,86,955 were

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found to be eligible and call letters were sent to them for appearing in the  

written  test  held  at  various  centres.  3,22,223  candidates  appeared for  the  

written test, out of which 2690 were selected.  Further the candidates who had  

approached the Court had also not opted that course instead many of them  

wanted to conduct a re-test for 2690 candidates, the second alternative.  The  

third  alternative  was  to  go  ahead  with  the  first  written  test  confining  the  

investigation to 62 candidates against whom there were serious allegations of  

impersonation.  The Board felt  in the wake of  the vigilance report and the  

reports  of  the  CBI,  it  would  not  be  the  best  option  for  the  Railway  

Administration  to  accept  the  third  alternative  since  there  were  serious  

allegations of malpractices against the test.  From a reasonable man’s point of  

view it  was felt  that  the  second  option  i.e.  to  conduct  a  re-test  for  those  

candidates who had obtained minimum qualifying marks in the first written test  

was the best alternative.    

36. We will  now apply  the  proportionality test  to  three  alternatives  

suggested.  Principle of proportionality, as we have already indicated, is more  

concerned  with  the  aims of  the  decision  maker  and  whether  the  decision  

maker has achieved the correct balance. The proportionality test may require  

the attention of the Court to be directed to the relative weight according to  

interest and considerations.  When we apply that test and look at the three

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alternatives, we are of the view that the decision maker has struck a correct  

balance  in  accepting  the  second  alternative.   First  alternative  was  not  

accepted  not  only  because  such  a  process  was  time  consuming  and  

expensive, but nobody favoured that option, and even the candidates who had  

approached the court was more in favour of the second alternative.  Applying  

the  proportionality test  also  in  our  view the  Board  has  struck  the  correct  

balance  in  adopting  the  second  alternative  which  was  well  balanced  and  

harmonious.  

37. We,  therefore  hold,  applying  the  test  of  Wednesbury  

unreasonableness as well as the proportionality test, the decision taken by the  

Board in the facts and circumstances of this case was fair, reasonable, well  

balanced and harmonious. By accepting the third alternative, the High Court  

was perpetuating the illegality since there were serious allegations of leakage  

of question papers, large scale of impersonation by candidates, mass copying  

in the first written test.  

38. We are also of  the view that  the High Court  has committed a  

grave error in taking the view that the order of the Board could be judged only  

on the basis of the reasons stated in the impugned order based on the  report  

of  vigilance  and  not  on  the  subsequent  materials  furnished  by  the  CBI.

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Possibly, the High Court had in mind the constitution bench judgment of this  

Court in Mohinder Singh Gill and Anr.  Vs.  The Chief Election Commissioner,   

New Delhi and Anr. (1978) 1 SCC 405  

39. We are of the view that the decision maker can always rely upon  

subsequent materials to support the decision already taken when larger public  

interest  is  involved.  This  Court  in  Madhyamic  Shiksha  Mandal,  M.P.  v.  

Abhilash  Shiksha  Prasar  Samiti  and  Others,  (1998)  9  SCC 236  found  no  

irregularity  in  placing  reliance  on  a  subsequent  report  to  sustain  the  

cancellation  of  the  examination  conducted  where  there  were  serious  

allegations of mass copying.  The principle laid down in Mohinder Singh Gill’s  

case is not applicable where larger public  interest  is  involved and in such  

situations, additional grounds can be looked into to examine the validity of an  

order.  Finding recorded by the High Court that the report of the CBI cannot be  

looked  into  to  examine  the  validity  of  order  dated  04.06.2004,  cannot  be  

sustained.

40. We also find it difficult to accept the reasoning of the High Court  

that the copy of the Vigilance report should have been made available to the  

candidates at least when the matters came up for hearing.  Copy of the report,  

if at all to be served, need be served only if any action is proposed against the

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individual candidates in connection with the malpractices alleged.  Question  

here lies on a larger canvas as to whether the written test  conducted was  

vitiated by serious irregularities like mass copying, impersonation and leakage  

of  question paper,  etc  not  against  the conduct  of  few candidates.   In  this  

connection reference may be made to the judgment of  this Court  in  Bihar  

School  Examination Board v.  Subhas Chandra  Sinha and  others, 1970(1)  

SCC  648.   That  was  a  case  where  36  students  of   S.S.H.E.  School,  

Jagdishpur and H.E. School Malaur, District Shahbad, moved a Writ Petition  

before the Patna High Court against the order of the Board canceling annual  

Secondary School  Examination of 1969 in relation to Hanswadih Centre in  

Shahbad District.   The  High  Court  quashed  the  order  of  cancellation  and  

directed the Board to publish the results.  Against the judgment and order of  

the High Court the Board filed an appeal by way of special leave petition to  

this Court.  This Court allowed the appeal and upheld the order of the Board  

cancelling the examination.  On the complaint that no opportunity was given to  

the candidates to represent their case before cancellation, this Court observed  

as follows:-

“This is not a case of any particular individual who is being  charged with adoption of unfair means but of the conduct of all the  examinees  or  at  least  a  vast  majority  of  them  at  a  particular  centre.  If it is not a question of charging any one individually with  unfair means but to condemn the examination as ineffective for  the purpose it was held.  Must the Board give an opportunity to all  the candidates to represent their cases?  We think not.  It was not

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necessary for the Board to give an opportunity to the candidates if  the examinations as a whole were being cancelled.  The Board  had not charged any one with unfair means so that he could claim  to defend himself.  The examination was vitiated by adoption of  unfair means on a mass scale.  In these circumstances it would  be wrong to insist that the Board must hold a detailed inquiry into  the matter and examine each individual case to satisfy itself which  of  the  candidates  had  not  adopted  unfair  means.   The  examination as a whole had to go.”  

41.  Applying the above principle, we are of the view that the finding  

recorded by the High Court that non supply of the copy of the Vigilance report  

to the candidates was a legal infirmity, cannot be sustained.

42. Writ Petitioners, in our view, have also no legal right to insist that  

they  should  be  appointed  to  Group  ‘D’  posts.   Final  merit  list  was  never  

published.  No appointment orders were issued to the candidates.  Even if a  

number of vacancies were notified for appointment and adequate number of  

candidates were found successful,  they would not acquire any indefeasible  

right to be appointed against the existing vacancies.  This legal position has  

been settled by a catena of decisions of this Court.  Reference can be made  

to the judgment of this Court in Shankarsan Dash v. Union of India, (1991) 3  

SCC 47; B. Ramanjini and Others v. State of A.P. and Others, (2002) 5 SCC  

533.   

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43. We are also of the view that the High Court was in error in holding  

that the materials available  relating to leakage of question papers was limited  

and had no reasonable nexus to the alleged large scale irregularity.  Even  a  

minute leakage of question paper would be sufficient to besmirch the written  

test  and  to  go  for  a   re-test  so  as  to  achieve  the  ultimate  object  of  fair  

selection.

44. We, therefore, find no infirmity in the decision taken by the Board  

in conducting the second written test for those who have obtained minimum  

qualifying marks in the first written test rather than going ahead with the first  

written test which was tainted by large scale irregularities and malpractices.  

The Board can now take further steps to regularize the results of the second  

test and the appointments of the selected candidates.  Ordered accordingly.  

Appeals are accordingly allowed and the judgment of the High Court is set  

aside.  

…………………………..J. (Aftab Alam)

…………………………..J. (K.S. Radhakrishnan)

New Delhi; May 06, 2010.