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TRIBHUWAN NATH SINGH versus UNION OF INDIA THRU' SECY. RAILWAY AND OTHERS

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Tribhuwan Nath Singh v. Union Of India Thru' Secy. Railway And Others - WRIT - A No. 48732 of 2005 [2007] RD-AH 8730 (8 May 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

       Reserved on 18.4.2007  

              Delivered on 8.5.2007

Civil Misc. Writ Petition No. 48732 of 2005

                            Tribhuwan Nath Singh

Vs.

Union of India and others

Hon'ble Anjani Kumar, J.

Hon'ble Sudhir Agarwal, J.

                      (Delivered by Hon'ble Sudhir Agarwal, J.)

  Aggrieved by the order dated 19.4.2005 passed by the Central Administrative Tribunal, Allahabad dismissing the petitioner's original application no. 1367 of 2004, he has filed this writ petition under Article 226 of the Constitution of India.

      The facts in brief, as borne out from the record, are that the Railway Recruitment Board (hereinafter referred to as ''RRB') published advertisement no. 1/03 on 13.6.2003 notifying certain vacancies on the post of Khalasi/Helper-II, class-IV posts in the news paper "Employment News" dated 28th June--4th July, 2003. The petitioner, being eligible for the said post, applied and was allotted roll no. 2434734. He appeared in written examination held on 30.11.2003, result whereof was declared on 27.2.2004, wherein he was found successful. Thereafter he was required to appear in physical efficiency test on 29.3.2004. He passed the said test also and was directed by the respondents to be present on 3.4.2004 for documents verification, which was finalized on 3.4.2004. While the petitioner was awaiting final result, he came to know that RRB has published another advertisement in Employment News dated 30th Oct.--5 Nov. 2004 informing that earlier physical efficiency test is treated null and void and the candidates would have to appear in the second stage examination. Aggrieved by the said advertisement, the petitioner filed original application no. 1368 of 2004 wherein the respondents filed their counter affidavit stating that several irregularities were found in the aforesaid examination and therefore, it was decided to cancel  the  result  of  physical  efficiency  test  and  to hold second stage

examination, which was already provided in para 18.1 of the advertisement punished in Employment News dated 28.6.2003. The petitioner had no indefeasible right to get appointment even if would have been selected and, therefore, the original application was not maintainable. Further, he appeared in the second stage written examination but could not succeed and, therefore, has no right to challenge the aforesaid second stage examination.

       The  Tribunal after noticing the kind of irregularities on account whereof the decision of cancellation of examination was taken found the action of the respondents to be justified and, accordingly, dismissed the original application.

The learned counsel for the petitioner vehemently contended that the kind of irregularities pointed out by the respondents were not such as would have justified cancellation of the entire physical efficiency test and on the contrary, the respondent could have identified the erring candidates and ought to have cancelled only their candidature in view of the law laid down by the Apex Court in Union of India & others Vs. Rajesh P.U. Puthuvalnikathu & others, 2003(7) SCC 285. He further contended that decision to cancel the entire examination is patently arbitrary showing non application of mind and, therefore, the respondents are bound to declare final result on the basis of the examination already held and the second stage examination is null and void.

Sri Amit Sthalekar, learned counsel, appearing for the respondents, however submitted that in view of the wide spread irregularities, which were of such a nature that could not have been separated and, therefore, the authorities decided to cancel the test and to hold second stage examination in accordance with the conditions contained in para 18.1 of the advertisement. He also submitted that in such matters unless there is a clear perversity or violation of some statutory provision, the Court should not interfere and placed reliance on judgments  of  the  Apex  Court  in  Union  of  India  &  others  Vs.

Anand Kumar Pandey & others, JT 1994 (4) SC 419, Union of India & others Vs. O. Chakradhar, 2002 (3) SCC 146 and Division Bench judgment of this Court in Dilip Kumar Goswami & others Vs. Central Administrative Tribunal, 2001 (3) ESC 939, Union of India Vs. Vinod Kumar Mani Tripathi, 2001 (1) ESC 64, Union of India & others Vs. Akchhay Kumar Singh & others, 1999 (4) AWC 3564.

We have heard learned counsel for the parties and perused the record.

It appears from the record that the then Chairman, RRB submitted a report to the Railway Board about impersonation and unfair means adopted in the aforesaid examination. Some of the general observations contained in the said report, as noted by the Tribunal, are as under :

"In many case thumb prints given at a time of exam had been smudged in some cases, there were multiple overlapping impression and in one case attempt was made to erase the impression.  

Study of signature sample revealed a lot of ingenuity. English signature was made with separate letter rather then cursive (joined) writing. A few letters were usually formed in a distinctive style that could be matched by the candidates at the time of document verification. In such cases, there were often enough differences in flow of signatures, alignment of letters and in formation of many of the other letter to show that difference hands were at work.

Many candidates who has produced large amount of fluent English writing on exam materials collected in the written exam were. Were found at the time of document verification to be semi-literate and unable to writ in English.

Many candidate were not able to reproduce their Roll Number inn words (which had been recorded on OMR sheet at the time of written exam., often in fluent English writing) or to explain the working formula in rough work done on question booklet.

Recollection of candidates were also tested for details of center from which they appeared. Often, candidates could not answer such question correctly.

In doubtful cases, candidates were asked some questions from their questions booklets. Some candidates replied easily, but others could not."

The Railway Board thereupon advised the Chairman, RRB that in view of the nature of malpractice/irregularities he may proceed to conduct second stage examination. In para-18.1 of the advertisement the right to hold second stage examination was reserved by RRB as is evident from the following :

"18.1 Selection will be based on written examination followed by Physical Efficiency Test to assess the candidate's physical fitness for the post(s). RRB reserves the right to conduct second stage examination, if required. Physical efficiency test will be of qualifying nature. There will be no interview."

The nature of irregularities and malpractices pointed out by the Chairman, RRB, in our view, are such which cannot be identified with reference to the candidates particularly, when it is found that the magnitude of the irregularities was very wide and it would be difficult to ascertain and identify the candidates with precision. The irregularities, as referred to in the report are not only illustrative but show magnitude of much wider range. In order to maintain purity and impartiality of the selection, if the authorities decided to cancel the test and proceed for second stage examination, we do not find any arbitrariness in the decision.  In the matter of selection, where the authorities have decided to cancel and examination on account of wide spread malpractice, the scope of judicial review is very limited and unless material available on record is so evident which may demonstrate arbitrariness and perversity in the decision of the authorities, the Court would not interfere ordinarily. In Madhyamik Shiksha Mandal Vs. Abhilash Shiksha Prasar Samiti, 1998 (9) SCC 236, the Apex Court deprecating interference by the High Court on sheer technicalities in the matter of malpractice in the examination, held as under :

"We feel a little distressed that in matter like this the High Court should have interfered with the decision taken by the Board. The contention was that the examination was cancelled on the report of a Naib Tehsildar dated 18.03.1996 who was not authorized by the Board to visit the examination center. It is irrelevant whether the Naib Tehsildar was authorized by the Board to visit the centre or not but what is of importance is the fact that he did visit the centre and found the students copying even before the question papers were distributed. This clearly implies that the students were aware of the questions indicative of the leakage of the question paper. The Naib Tehsildar even complained that the teachers did not object to the students entering the examination hall with books and copying material. That would mean that either they were hand in glove with the students or they were for some reason not able to stop the students from copying. This is also evident from the report of the Superintendent of the Centre. The Naib Tehsildar States that neither the Superintendent of the centre  nor the invigilators were prepared to interfere and were not able to explain how the students could enter the hall with books, etc. and copy therefrom with impunity. The Superintendent of the Centre states that he had requested the Naib Tehsildar to stay for three hours but the Naib Tehsildar did not stay. The report of the valuers at p. 81 also goes to show that there was mass copying. The High Court brushed it aside as subsequent material. But it supports the Board's decision and it was improper in a sensitive matter like this to ignore it on such a technical ground. In the face of this material, we do not see any justification in the High Court having interfered with the decision taken by the Board to treat the examination as cancelled. It is unfortunate that the student community resorts to such methods to succeed in examinations and then some of them come forward to contend that innocent students become victims of such misbehaviour of their companions. That cannot be helped. In such a situation the Board is left with no alternative but to cancel the examination it is extremely difficult for the Board to identify the innocent students from those indulging in  malpractices. One may feel sorry for the innocent students but one has to appreciate the situation in which the Board was place and the alternatives that were available to it so far as this examination was concerned. It had no alternative but to cancel the result and we think, in the circumstances they were justified in doing so. This should serve as a lesson to the students that such malpractices will not help them succeed in the examination and they may have to go through the drill once again. We also think that those in charge of the examinations should also take action against their Supervisors/ Invigilators etc who either permit such activity or become silent spectators thereto. If they feel insecure because of the strong-arm tactics of those who indulge in malpractices, the remedy is to secure the services of the Uniformed Personnel, if need be, and ensure that students do not indulge in such malpractices."

Where purity and sanctity of public selection/examination is at stake, technicalities shall not prevail and take front seat in all such matters. The scope of judicial review would be only as to whether the decision taken by the authorities is such which a reasonable person of ordinary prudence in the facts and circumstances and material available on record would have taken. In Union of India Vs. O. Chakradhar, 2002 (3) SCC 146, it was held where mischief in conducting selection was so widespread and all pervasive, affecting the result, and, it was difficult to identify the persons unlawfully benefited or wrongfully deprived of selection then in that event whole selection should be cancelled and in that view a decision of cancelling the selection cannot be said to be unreasonable or arbitrary. In para-8 of the judgment, the Court held as under :

" In our view the nature and the extent of illegalities and irregularities committed in conducting a selection will have to be scrutinized in each case so as to come to a conclusion about future course of action to be adopted in the matter. If the mischief played is so widespread and all-pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection in such cases it will neither be possible nor necessary to issue individual show cause notices to each selectee. The only way out would be to cancel the whole selection. Motive behind the irregularities committee also has its relevance."

In Union of India & others Vs. Rajesh P.U. (supra), a similar view was reiterated and para-6 of the judgment though relied by the counsel for the petitioner is reproduced as under :

"6. On a careful consideration of the contentions on either side in the light of the materials brought on record, including the relevant portions of the report said to have been submitted by the Special Committee constituted for the purpose of inquiring into the irregularities, if any, in the selection of  candidates, filed on our directions- which report itself seems to have been also produced for the perusal of the High Court- there appears to be no scope for any legitimate grievance against the decision rendered by the High Court. There seems to be no serious grievance of any malpractices as such in the process of the written examination- either by the candidates or by those who actually conducted them. If the Board itself decided to dictate the questions on a loudspeaker in English and Hindi and none of the participants had any grievance in understanding them or answering them, there is no justification to surmise at a later stage that the time lapse in dictating them in different languages left any room or scope for the candidates to discuss among them the possible answers. The posting of invigilators for every ten candidates would belie any such assumptions. Even that apart, the Special Committee constituted does not appear to have condemned that part of the selection process relating to conduct of the written examination itself, except noticing only certain infirmities only in the matter of evaluation of answer sheets with reference to correct answers and allotment of marks to answers of some of the questions. In addition thereto, it appears that the Special Committee has extensively scrutinized and reviewed the situation by re-evaluating the answer sheets of all the 134 successful as well as the 184 unsuccessful candidates and ultimately found that except 31 candidates found to have been declared successful though they were not really entitled to be so declared successful and selected for appointment there was no infirmity whatsoever in the selection of the other successful candidates than the 31 identified by the Special Committee. In the light of the above and in the absence of any specific or categorical finding supported by any concrete and relevant material that widespread infirmities of an all pervasively nature, which could be really said to have undermined the very process itself in its entirety or as a whole and it was impossible to weed out the beneficiaries of one or the other irregularities, or illegalities, if any, there was hardly any justification in law to deny appointment to the other selected candidates whose selections were not found to be, in any manner, vitiated for any one or the other reasons. Applying a unilaterally rigid and arbitrary standard to cancel the entirety of the selections despite the firm and positive information that except 31 of such  selected candidates, no infirmity could be found with reference to other, is nothing but total disregard of relevancies and allowing to be carried away by irrelevancies, giving a complete go by to  contextual considerations throwing to the winds the principle of proportionality in going farther than what was strictly and reasonably to meet the situation. In short the competent authority completely misdirected itself in taking such an extreme and unreasonable decision of canceling the entire selections, wholly unwarranted and unnecessary even on the factual situation found too, and totally in excess of the nature and gravity of what was at stake, thereby virtually rendering such decision to be irrational."

The common thread running in all the aforesaid legal propositions is clear that examination on the whole can be cancelled only when there is material leading to inference that there are widespread infirmities of all pervasive nature, affecting the result and it was difficult to identify the persons unlawfully benefited or wrongfully deprived of selection, i.e., difficult to separate grain from chaff. Attempt can also be made where possible, whether the complaint is localized one liable to be identified or is large scale and widespread one or the illegality and irregularity is so intermingled that it would be difficult to separate good from bad and vice versa. The Railway Board has considered the matter and found that various discrepancies were noted at the time of document verification, therefore, in its wisdom and in the light of the condition of the advertisement decided to hold second stage examination instead of cancelling the entire selection wherein more than two lacs candidates are said to have appeared at the preliminary examination stage. The decision, ex facie, in our view cannot be said to be perverse or arbitrary.

At this stage, it would be appropriate to consider that judicial review of an administrative decision is not an appeal from the decision but is a review of the manner in which the decision was made, i.e., decision making process. Judicial review is entirely different from an ordinary appeal. Lord Scarman in Nottinghamshire Country Council Vs. Secretary of State for the Environment, 1986 A.C. 240 put a note of caution for exercise of power of judicial review in following words :

"Judicial review is a great weapon in the Hands of the Judges; but the Judges must observe the constitutional limits set by our parliamentary system upon the exercise of this beneficent power."

The grounds on which an administrative decision can be brought within the purview of judicial review may be classified in the following three categories :

1.Illegality.

2.Irrationality, namely, Wednesbury unreasonableness.

3.Procedural impropriety.

  Something is "illegal" when it is contrary to the statute or set principle of law. The "irrational" means "Wednesbury unreasonableness". It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standard that no sensible person who had applied his mind to the question on the given facts and circumstances would come to such conclusion. In other words, it can be said to be another facet of perversity. The Court, while applying the doctrine of "Wednesbury unreasonableness" would not go into the correctness of the decision and would not substitute the decision of the administrative authority. In State of Rajasthan & another Vs. Mohammed Ayub Naz, AIR 2006 SC 856, the Court held that the common thread running in all these decisions is that the Court should not interfere with the Administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the consciousness of the Court in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case, the Court would not go into the correctness of the choice made by the Administrator open to him and the Court should not substitute its decision for that of Administrator. The scope of judicial review is limited to the deficiency in the decision making process and not a decision.

 Testing with the principles of unreasonableness in the light of reasons referred to by the Railway Board based on the report of Chairman, RRB, in our view, the decision cannot be said to be so which a reasonable man could not have arisen. It is unfortunate that of late this Court is flooded by the cases involving wide spread malpractice and the decision taken by the authorities to cancel selection challenging such decision. The candidates, who have either got selected or managed to get selected and sometimes even a few bona fide honest candidates who have suffered on account  of large scale malpractice of other raise such dispute. The situation has arrived at on account of general deterioration in the society. We are at pain to observe that it is so wide spread that now the people do not feel shame or repentance in taking recourse of such activities and, therefore, in making all out efforts to retain the fruits. Corruption, favoritism and nepotism, unfortunately, has become order of day and is affecting the whole society like cancer and AIDS. Corrupt people have taken place of pride in the society. They are supported by the hypocrites committed in broad day light and as a result, the society is affected. The graph of crime and corruption has reached such a height that unless a consolidated effort by right minded people would not come forward to counter it, it may lead to disorder social and political. We are not unmindful that the Court has a vital role to play in such matters as and when it come to its notice. It is not the case of the petitioners that the decision has been taken by the respondents on account of some mala fide or for some extraneous reasons. None has been impleaded co-nominee to sustain and contest the plea of mala fide. Once a decision has been taken on the basis of material on record, which by itself cannot be said to be flimsy or non est. and the decision has been taken in good faith and bona fide, we do not find that in such a matter, the Court would be justified to interfere. Therefore, in our view, the Tribunal was right in dismissing original application challenging the decision  of the Railway Authorities.

In the result, we do not find any merit in the writ petition. It is, accordingly, dismissed. No order as to costs.

Dt. 08.05.2007

PS


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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