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Supreme Court Reports [2010] 6 Scr 292 Chairman, All India [2010] 6 S.C.R. 291 292 SUPREME COURT REPORTS [2010] 6 S.C.R. CHAIRMAN, ALL INDIA RAILWAY RECT. BOARD & ANR. A A Principle of natural justice – Recruitment test – Vigilance v. report revealing irregularities like mass copying, K. SHYAM KUMAR & ORS. impersonation and leakage of question paper – Cancellation (Civil Appeal Nos. 5675-5677 of 2007) of test and direction for re-test – Non-furnishing of vigilance report – Held: Non-supply of the report was not illegal as the MAY 6, 2010 B B question in the instant case was on a larger canvas – No [AFTAB ALAM AND K.S. RADHAKRISHNAN, JJ.] action was proposed against individual candidate. Practice and Procedure – Subsequent event – Service Law – Recruitment drive – Malpractice in the Consideration of – Held: Where larger public interest is written examination came to notice after preparation of select involved, subsequent events can be looked into to examine C C list – Vigilance report revealed leakage of question papers, validity of an order. mass copying and impersonation of candidates – Matter also referred to CBI – Authorities directing re-test of candidates In a recruitment drive for filling up Group D posts, who had obtained minimum qualifying marks in the written test appellant selected 2690 candidates. At the time of – Central Administrative Tribunal upheld the order for re-test verification of their original documents, it came to their – In writ petition, High Court applying principle of wednesbury, D D notice that certain malpractices had taken place in the setting aside the order of re-test and directing appointment written examination. Several complaints were also of all the candidates except those against whom there was received in this regard. The matter was referred to State allegation of impersonation – On appeal, held: The High Vigilance department. Vigilance report revealed leakage Court wrongly applied the principle of Wednesbury and of question paper, mass copying and impersonation of misdirected itself in rejecting the decision of re-test – Applying E E candidates in the written examination. The report also the test of wednesbury as well as proportionality test, decision indicated possibility of involvement of some employees of the authorities, in the facts of the case was fair, reasonable, of the department and outsiders in the malpractices balanced and harmonious – Candidates challenging the re- detected. It recommended the matter to be referred to CBI. test have no legal right to appointment, as final merit list was The Railway Board after examining the vigilance not published – Doctrines / Principles – Doctrine of F F proportionality – Principle of wednesbury. report, by order dated 04.06.2004 directed a re-test for the candidates, who had obtained minimum qualifying marks Administrative Law: in the written test. Judicial Review – Scope of – Held: The judicial review Certain candidates, who had taken the first written can be principally on the basis of illegality, procedural G G test, filed application before Central Administrative impropriety and irrationality. Tribunal questioning the order to coduct re-test and sought declaration that they were eligible to be appointed Wednesbury principle of unreasonableness and Doctrine to Group D posts pursuant to the selection already made. of proportionality – Applicability of – Discussed. The Tribunal found no irregularity in the decision taken 291 H H by the Board in re-conducting the test. CHAIRMAN, ALL INDIA RAILWAY RECT. BOARD v. K. 293 294 SUPREME COURT REPORTS [2010] 6 S.C.R. SHYAM KUMAR Writ petition was preferred against the order of the A A unreasonableness has not been replaced by the doctrine Tribunal. High Court rejected the contentions that the of proportionality though the proportionality test is being order was politically motivated and mala fide and applying applied more and more when violation of human rights Wednesburry’s principle of unreasonableness, held that is alleged – Wednesbury applies to a decision which is the decision of the Board was illegal, arbitrary and so reprehensible in its defiance of logic or of accepted unreasonable. The Court directed the Board to finalize B B moral or ethical standards that no sensible person who the selection on the basis of the first written test and to had applied his mind to the issue to be decided could issue appointment orders to all the candidates except the have arrived at it. Proportionality as a legal test is capable 62 candidates against whom there were allegations of of being more precise and fastidious than a impersonation. Hence the present appeals. reasonableness test as well as requiring a more intrusive C C review of a decision made by a public authority which Allowing the appeals, the Court requires the courts to ‘assess the balance or equation’ HELD: 1.1. Judicial review conventionally is struck by the decision maker. Proportionality test in some concerned with the question of jurisdiction and natural jurisdictions is also described as the “least injurious justice and the court is not much concerned with the means” or “minimal impairment” test so as to safeguard merits of the decision but how the decision was reached. D D fundamental rights of citizens and to ensure a fair The basis of judicial review could be highlighted under balance between individual rights and public interest. three principal heads, namely, illegality, procedural There has been an overlapping of all these tests in its impropriety and irrationality. Illegality as a ground of content and structure, it is difficult to compartmentalize judicial review means that the decision maker must or lay down a straight jacket formula and to say that Wednesbury has met with its death knell is too tall a understand correctly the law that regulates his decision E E making powers and must give effect to it. Grounds such statement. The current trend seems to favour as acting ultra vires, errors of law and/or fact, onerous proportionality test but Wednesbury has not met with its conditions, improper purpose, relevant and irrelevant judicial burial and a State burial, with full honours is factors, acting in bad faith, fettering discretion, surely not to happen in the near future. [Paras 27, 28 29 and 30] [312-G-H; 313-A-H; 314-A] unauthorized delegation, failure to act etc., fall under the F F heading “illegality”. Procedural impropriety may be due State of U.P. v. Sheo Shanker Lal Srivastava and Ors. to the failure to comply with the mandatory procedures (2006) 3 SCC 276; Indian Airlines Ltd. v. Prabha D. Kanan such as breach of natural justice, such as audi alteram (2006) 11 SCC 67; Jitendra Kumar and Ors. v. State of partem, absence of bias, the duty to act fairly, legitimate Haryana and Anr. (2008) 2 SCC 161; State of Madhya expectations, failure to give reasons etc. [Para 16] [307- G G Pradesh and Ors. v. Hazarilal (2008) 3 SCC 273, dissented G-H; 308-A-C] from. 1.2. To say that Wednesbury principle of 1.3. Proportionality, requires the court to judge unreasonableness has been replaced by doctrine of whether action taken was really needed as well as proportionality, would be an over-statement of the whether it was within the range of courses of action English Administrative Law. Wednesbury principle of H H CHAIRMAN, ALL INDIA RAILWAY RECT. BOARD v. K. 295 296 SUPREME COURT REPORTS [2010] 6 S.C.R. SHYAM KUMAR which could reasonably be followed. Proportionality is A A Associated Provincial Picture Houses Limited v. more concerned with the aims and intention of the Wednesbury Corporation (1947)2 All ER 680; R. v. Secretary decision-maker and whether the decision-maker has of State for the Home Department ex parte Brind (1991) 1 All achieved more or less the correct balance or equilibrium. ER 720; R (Daly) v. Secretary of State for the Home Courts entrusted with the task of judicial review have to Department (2001) 2 AC 532 ; Council of Civil Service examine whether decision taken by the authority is B B Unions vs. Minister of State for Civil Service 1984 (3) All ER proportionate, i.e. well balanced and harmonious, to this 935; R. (Alconbury Development Limited) v. Secretary of extent court may indulge in a merit review and if the court State for the Environment, Transport and the Regions (2001) finds that the decision is proportionate, it seldom 2 All ER 929; R. (Association of British Civilian Internees: Far interferes with the decision taken and if it finds that the East Region) v. Secretary of State for Defence 2003 QB 1397; decision is disproportionate i.e. if the court feels that it is C C Huang v. Secretary of State for the Home Department 2007 not well balanced or harmonious and does not stand to (4) ALL ER 15 (HL) ; Huang v. Secretary of State for the reason it may tend to interfere. [Para 31] [314-B-D] Home Department (2005) 3 All ER 435; R. v. Secretary of State of the Home Department, ex parte Daly (2001) 3 All ER 1.4. Courts have to develop an indefeasible and 433 (HL), referred to. principled approach to proportionality till that is done, there will always be an overlapping between the D D Administrative Law by HWR Wade and CF Forsyth, 9th traditional grounds of review and the principle of Edition. (2004) pages 371-372 and 10th Edition (2009) proportionality and the cases would continue to be Textbook on Administrative Law by Leyland and Anthony, 5th decided in the same manner whichever principle is Edition OUP 2005 p. 331, referred to. adopted. Proportionality as the word indicates has reference to variables or comparison, it enables the court E E 2.1. Report of the Vigilance has prima facie to apply the principle with various degrees of intensity established that the allegations of leakage of question and offers a potentially deeper inquiry into the reasons, papers, large scale impersonation of candidates, mass projected by the decision maker.
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