REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICITION

CIVIL APPEAL NO. 4964 OF 2010

ARISING OUT OF SLP (CIVIL) NO.27153 OF 2008

East Coast Railway & Anr. …Appellants

Versus

Mahadev Appa Rao & Ors. …Respondents

WITH

CIVIL APPEAL NOS. 4965-4966 OF 2010

ARISING OUT OF SLP (CIVIL) NOS.27155-27156 OF 2008

K. Surekha …Appellant

Versus

Mahadev Appa Rao & Ors. …Respondents

J U D G M E N T

1. Leave granted.

2.These appeals arise out of an order passed by the High

Court of Andhra Pradesh at Hyderabad whereby Writ Petition

No.15196 of 2007 has been allowed and the order passed by

the Central Administrative Tribunal, Hyderabad Bench in OA

No.748 of 2006 set aside.

3.Senior Divisional Personnel Officer, East Coast Railway,

Visakhapatnam, issued a notification proposing to conduct a

written/practical typewriting test for filling up the vacant

posts of Chief Typists in the pay-scale of Rs.5500-9000. In

response as many as 12 candidates appeared in the test

held on 30

th

October, 2006 the result whereof was

announced on 22

nd

November, 2006. Some of the candidates

who failed to qualify made a representation complaining

about the manner in which the test was conducted alleging

that defective typewriting machines provided to them placed

them at a disadvantage vis-a-vis candidates declared

successful. The successful candidates also appear to have

made a representation impressing upon the authorities to go

ahead with the interviews and to complete the selection

process expeditiously. Since that did not happen, OA No.748

of 2006 was filed before the CAT by one of the successful

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candidates for a direction to respondent to proceed with the

selection. In the meantime the Divisional Manager of the

appellant-Railways issued an order on 14

th

of December,

2006 cancelling the typewriting test conducted on 30

th

October, 2006. By another notification of even date a fresh

typewriting test was notified to be held on 16

th

December,

2006 for all the 12 in-service candidates who had appeared

in the earlier test. By an interim order passed by the

Tribunal the railway authorities were allowed to conduct the

proposed second test in which the applicant before the

Tribunal could also appear. The applicant was at the same

time permitted to amend the prayer in the OA to assail the

order passed by the Divisional Manager of the Railways

cancelling the earlier test.

4.It is not in dispute that pursuant to the said notification

and the order passed by the Tribunal a fresh test was indeed

conducted in which all the eligible in-service candidates

appeared although the result of the said test has not been

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announced so far. The Tribunal eventually dismissed OA

No.748 of 2006 holding that the test earlier conducted was

rightly cancelled inasmuch as the candidates were made to

take the test in batches and no option was given to them to

bring their own typewriters. The Tribunal further held that

although some of the candidates had made representation

as early as on 23

rd

October, 2006 seeking permission to use

computers their request was not considered. All this

according to the Tribunal justified the cancellation of the

typewriting test held on 30

th

October and the issue of a

notification for a fresh test.

5.Aggrieved by the order passed by the Tribunal Shri

Mahadev Appa Rao declared successful in the first test filed

Writ Petition No.15196/2007 before the High Court of

Andhra Pradesh which has by the order impugned in the

present appeal allowed the same and set aside the order

passed by the Tribunal as also the order by which the earlier

test was cancelled. The High Court further directed the

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respondent to proceed with the selection process pursuant

to notification dated 18

th

October, 2006 and the practical

test conducted on 30

th

October, 2006 in terms thereof. The

present appeals, as noted above, assail the correctness of

the said order.

6.We have heard learned counsel for the parties at some

length and perused the record. The High Court has found

fault with the order cancelling the earlier test primarily

because the same was unsupported by any reasons

whatsoever. The said order is in the following words:

“The practical test conducted to Hd. Typists

in scale Rs.5000-8000 (RSRP) on 30.10.2006

in connection with the selection of Chief

Typist in scale Rs.5500-9000 (RSRP) to form

a panel of 4 UR + 1 SC and the results

published vide O.A. No. Estt/Pers/52/2006,

Dt. 22.12.2006 are hereby cancelled.”

7.The High Court was also of the view that no reasons for

cancellation of the test having been recorded even on the

file contemporaneously maintained for that purpose, the

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same could not be supplied in the affidavit filed in reply to

the Writ Petition challenging the said order, especially when

the cancellation of the test was not according to the High

Court necessitated by any irregularity in the conduct of the

test or any mala fides vitiating the same. In the absence of

any such infirmity the cancellation of the examination was

arbitrary and unsustainable, declared the High Court.

8.There is no quarrel with the well-settled proposition of

law that an order passed by a public authority exercising

administrative/executive or statutory powers must be

judged by the reasons stated in the order or any record or

file contemporaneously maintained. It follows that the

infirmity arising out of the absence of reasons cannot be

cured by the authority passing the order stating such

reasons in an affidavit filed before the Court where the

validity of any such order is under challenge. The legal

position in this regard is settled by the decisions of this

Court in Commissioner of Police, Bombay v.

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Gordhandas Bhanji (AIR 1952 SC 16) wherein this Court

observed :

“Public orders, publicly made, in exercise of a

statutory authority cannot be construed in

the light of explanations subsequently given

by the officer making the order of what he

meant, or of what was in his mind, or what

he intended to do. Public orders made by

public authorities are meant to have public

effect and are intended to affect the actings

and conduct of those to whom they are

addressed and must be construed objectively

with reference to the language used in the

order itself. ”

9.Reference may also be made to the decision of this

Court in Mohinder Singh Gill and Anr. v. Chief Election

Commissioner, New Delhi and Ors. (1978) 1 SCC 405

where this Court reiterated the above principle in the

following words:

“8. The second equally relevant matter is

that when a statutory functionary makes an

order based on certain grounds, its validity

must be judged by the reasons so mentioned

and cannot be supplemented by fresh

reasons in the shape of affidavit or

otherwise. Otherwise, an order bad in the

beginning may, by the time it comes to court

on account of a challenge, get validated by

additional grounds later brought out.”

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10.Later decisions of this Court in R. Vishwanatha Pillai

v. State of Kerala & Ors. (2004) 2 SCC 105 and

Hindustan Petroleum Corporation Ltd. v. Darius

Shapur Chenai & Ors. (2005) 7 SCC 627 have re-stated

the legal position settled by the earlier two decisions noticed

above.

11.Relying upon the decision of this Court in Union of

India and Ors. v. Tarun K. Singh and Ors. (2003) 11

SCC 768, Mr. Malhotra all the same argued that the

challenge to the order cancelling the test was legally

untenable as no candidate had any legally enforceable right

to any post until he was selected and an order of

appointment issued in his favour. Cancellation of the

selection process on the ground of malpractices could not,

therefore, be subjected to judicial scrutiny before a Writ

Court, at the instance of a candidate who had not even

found a place in the select list.

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12.A Constitution Bench of this Court in Shankarsan

Dash v. Union of India (1991) 3 SCC 47 had an occasion

to examine whether a candidate seeking appointment to a

civil post can be regarded to have acquired an indefeasible

right to appointment again such post merely because his

name appeared in the merit list of candidates for such post.

Answering the question in the negative this Court observed:

“It is not correct to say that if a number of

vacancies are notified for appointment and

adequate number of candidates are found fit,

the successful candidates acquire an

indefeasible right to be appointed which

cannot be legitimately denied. Ordinarily the

notification merely amounts to an invitation

to qualified candidates to apply for

recruitment and on their selection they do

not acquire any right to the post. Unless the

relevant recruitment rules so indicate, the

State is under no legal duty to fill up all or

any of the vacancies. However, it does not

mean that the State has the licence of acting

in an arbitrary manner. The decision not to

fill up the vacancies has to be taken bona

fide for appropriate reasons. And if the

vacancies or any of them are filled up, the

State is bound to respect the comparative

merit of the candidates, as reflected at the

recruitment test, and no discrimination can

be permitted. This correct position has been

consistently followed by this Court, and we

do not find any discordant note in the

decisions in the State of Haryana v. Subhash

Chander Marwaha 1974 (3) SCC 220;

Neelima Shangla (Miss) v. State of Haryana

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1986(4) SCC 268 or Jitender Kumar v. State

of Punjab 1985 (1) SCC 122.”

13.It is evident from the above that while no candidate

acquires an indefeasible right to a post merely because he

has appeared in the examination or even found a place in

the select list, yet the State does not enjoy an unqualified

prerogative to refuse an appointment in an arbitrary fashion

or to disregard the merit of the candidates as reflected by

the merit list prepared at the end of the selection process.

The validity of the State’s decision not to make an

appointment is thus a matter which is not beyond judicial

review before a competent Writ court. If any such decision is

indeed found to be arbitrary, appropriate directions can be

issued in the matter.

14.To the same effect is the decision of this Court in

Union Territory of Chandigarh v. Dilbagh Singh and

Ors. (1993) 1 SCC 154, where again this Court reiterated

that while a candidate who finds a place in the select list

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may have no vested right to be appointed to any post, in the

absence of any specific rules entitling him to the same, he

may still be aggrieved of his non-appointment if the

authority concerned acts arbitrarily or in a malafide manner.

That was also a case where selection process had been

cancelled by the Chandigarh Administration upon receipt of

complaints about the unfair and injudicious manner in which

the select list of candidates for appointment as conductors in

CTU was prepared by the Selection Board. An inquiry got

conducted into the said complaint proved the allegations

made in the complaint to be true. It was in that backdrop

that action taken by the Chandigarh Administration was held

to be neither discriminatory nor unjustified as the same was

duly supported by valid reasons for cancelling what was

described by this Court to be as a “dubious selection”.

15.Applying these principles to the case at hand there is

no gainsaying that while the candidates who appeared in the

typewriting test had no indefeasible or absolute right to seek

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an appointment, yet the same did not give a licence to the

competent authority to cancel the examination and the

result thereof in an arbitrary manner. The least which the

candidates who were otherwise eligible for appointment and

who had appeared in the examination that constituted a step

in aid of a possible appointment in their favour, were

entitled to is to ensure that the selection process was not

allowed to be scuttled for malafide reasons or in an arbitrary

manner. It is trite that Article 14 of the Constitution strikes

at arbitrariness which is an anti thesis of the guarantee

contained in Articles 14 and 16 of the Constitution. Whether

or not the cancellation of the typing test was arbitrary is a

question which the Court shall have to examine once a

challenge is mounted to any such action, no matter the

candidates do not have an indefeasible right to claim an

appointment against the advertised posts.

16.What then is meant for arbitrary/arbitrariness and how

far can the decision of the competent authority in the

present case be described as arbitrary? Black’s Law

12

Dictionary describes the term “arbitrary” in the following

words:

”1.Depending on individual discretion;

specif., determined by a judge rather than by

fixed rules, procedures, or law. 2. (Of a

judicial decision) founded on prejudice or

preference rather than on reason or fact.

This type of decision is often termed arbitrary

and capricious.”

17.To the same effect is the meaning given to the

expression “arbitrary” by Corpus Juris Secundum which

explains the term in the following words:

“ARBITRARY – Based alone upon one’s will,

and not upon any course of reasoning and

exercise of judgment; bound by no law;

capricious; exercised according to one’s own

will or caprice and therefore conveying a

notion of a tendency to abuse possession of

power; fixed or done capriciously or at

pleasure, without adequate determining

principle, nonrational, or not done or acting

according to reason or judgment; not based

upon actuality but beyond a reasonable

extent; not founded in the nature of things;

not governed by any fixed rules or standard;

also, in a somewhat different sense, absolute

in power, despotic, or tyrannical; harsh and

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unforbearing. When applied to acts,

“arbitrary” has been held to connote a

disregard of evidence or of the proper weight

thereof; to express an idea opposed to

administrative, executive, judicial, or

legislative discretion; and to imply at least an

element of bad faith, and has been compared

with “willful”.

18.There is no precise statutory or other definition of the

term “arbitrary”. In Kumari Shrilekha Vidyarthi and Ors.

v. State of U.P. and Ors. (AIR 1991 SC 537), this Court

explained that the true import of the expression

“arbitrariness” is more easily visualized than precisely stated

or defined and that whether or not an act is arbitrary would

be determined on the facts and circumstances of a given

case. This Court observed:

“The meaning and true import of

arbitrariness is more easily visualized than

precisely stated or defined. The question,

whether an impugned act is arbitrary or not,

is ultimately to be answered on the facts and

in the circumstances of a given case. An

obvious test to apply is to see whether there

is any discernible principle emerging from the

impugned act and if so, does it satisfy the

test of reasonableness. Where a mode is

prescribed for doing an act and there is no

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impediment in following that procedure,

performance of the act otherwise and in a

manner which does not disclose any

discernible principle which is reasonable, may

itself attract the vice of arbitrariness. Every

State action must be informed by reason and

it follows that an act uninformed by reason,

is arbitrary. Rule of law contemplates

governance by laws and not by humour,

whims or caprices of the men to whom the

governance is entrusted for the time being. It

is trite that ‘be you ever so high, the laws are

above you’. This is what men in power must

remember, always.”

19.Dealing with the principle governing exercise of official

power Prof. De Smith, Woolf & Jowell in their celebrated

book on “Judicial Review of Administrative Action”

emphasized how the decision-maker invested with the wide

discretion is expected to exercise that discretion in

accordance with the general principles governing exercise of

power in a constitutional democracy unless of course the

statute under which such power is exercisable indicates

otherwise. One of the most fundamental principles of rule of

law recognized in all democratic systems is that the power

vested in any competent authority shall not be exercised

arbitrarily and that the power is exercised that it does not

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lead to any unfair discrimination. The following passage from

the above is in this regard apposite:

“We have seen in a number of situations how

the scope of an official power cannot be

interpreted in isolation from general

principles governing the exercise of power in

a constitutional democracy. The courts

presume that these principles apply to the

exercise of all powers and that even where

the decision-maker is invested with wide

discretion, that discretion is to be exercised

in accordance with those principles unless

Parliament clearly indicates otherwise. One

such principle, the rule of law, contains

within it a number of requirements such as

the right of the individual to access to the law

and that power should not be arbitrarily

exercised. The rule of law above all rests

upon the principle of legal certainty, which

will be considered here, along with a principle

which is partly but not wholly contained

within the rule of law, namely, the principle

of equality, or equal treatment without unfair

discrimination.”

20.Arbitrariness in the making of an order by an authority

can manifest itself in different forms. Non-application of

mind by the authority making the order is only one of them.

Every order passed by a public authority must disclose due

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and proper application of mind by the person making the

order. This may be evident from the order itself or the

record contemporaneously maintained. Application of mind

is best demonstrated by disclosure of mind by the authority

making the order. And disclosure is best done by recording

the reasons that led the authority to pass the order in

question. Absence of reasons either in the order passed by

the authority or in the record contemporaneously maintained

is clearly suggestive of the order being arbitrary hence

legally unsustainable.

21.In the instant case the order passed by the competent

authority does not state any reasons whatsoever for the

cancellation of the typing test. It is nobody’s case that any

such reasons were set out even in any contemporaneous

record or file. In the absence of reasons in support of the

order it is difficult to assume that the authority had properly

applied its mind before passing the order cancelling the test.

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22.Mr. Malhotra’s contention that the order was passed

entirely on the basis of the complaint received from the

unsuccessful candidates is also of no assistance. The fact

that some representations were received against the test or

the procedure followed for the same could not by itself

justify cancellation of the test unless the authority concerned

applied its mind to the allegations levelled by the persons

making the representation and came to the conclusion that

the grievance made in the complaint was not without merit.

If a test is cancelled just because some complaints against

the same have been made howsoever frivolous, it may lead

to a situation where no selection process can be finalized as

those who fail to qualify can always make a grievance

against the test or its fairness. What is important is that

once a complaint or representation is received the

competent authority applies its mind to the same and

records reasons why in its opinion it is necessary to cancel

the examination in the interest of purity of the selection

process or with a view to preventing injustice or prejudice to

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those who have appeared in the same. That is precisely

what had happened in Dilbagh Singh’s case (supra). The

examination was cancelled upon an inquiry into the

allegations of unjust, arbitrary and dubious selection list

prepared by the Selection Board in which the allegations

were found to be correct. Even in Tarun K. Singh’s case

(supra) relied upon by Mr. Malhotra an inquiry into the

complaints received against the selection process was

conducted no matter after the cancellation of the

examination. This Court in that view held that since the

selection process was vitiated by procedural and other

infirmities cancellation thereof was perfectly justified.

23.That is not, however, the position in the instant case.

The order of cancellation passed by the competent authority

was not preceded even by a prima facie satisfaction about

the correctness of the allegations made by the unsuccessful

candidates leave alone an inquiry into the same. The

minimum that was expected of the authority was a due and

proper application of mind to the allegations made before it

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and formulation and recording of reasons in support of the

view that the competent authority was taking. There may be

cases where an enquiry may be called for into the

allegations, but there may also be cases, where even on

admitted facts or facts verified from record or an enquiry

howsoever summary the same maybe, it is possible for the

competent authority to take a decision, that there are good

reasons for making the order which the authority eventually

makes. But we find it difficult to sustain an order that is

neither based on an enquiry nor even a prima facie view

taken upon a due and proper application of mind to the

relevant facts. Judged by that standard the order of

cancellation passed by the competent authority falls short of

the legal requirements and was rightly quashed by the High

Court.

24.We may hasten to add that while application of mind to

the material available to the competent authority is an

essential pre-requisite for the making of a valid order, that

requirement should not be confused with the sufficiency of

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such material to support any such order. Whether or not

the material placed before the competent authority was in

the instant case sufficient to justify the decision taken by it,

is not in issue before us. That aspect may have assumed

importance only if the competent authority was shown to

have applied its mind to whatever material was available to

it before cancelling the examination. Since application of

mind as a thresh-hold requirement for a valid order is

conspicuous by its absence the question whether the

decision was reasonable having regard to the material

before the authority is rendered academic. Sufficiency or

otherwise of the material and so also its admissibility to

support a decision the validity whereof is being judicially

reviewed may even otherwise depend upon the facts and

circumstances of each case. No hard and fast rule can be

formulated in that regard nor do we propose to do so in this

case. So also whether the competent authority ought to

have conducted an enquiry into or verification of the

allegations before passing an order of cancellation is a

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matter that would depend upon the facts and circumstances

of each case. It may often depend upon the nature, source

and credibility of the material placed before the authority.

It may also depend upon whether any such exercise is

feasible having regard to the nature of the controversy, the

constraints of time, effort and expense. But what is

absolutely essential is that the authority making the order is

alive to the material on the basis of which it purports to take

a decision. It cannot act mechanically or under an impulse,

for a writ court judicially reviewing any such order cannot

countenance the exercise of power vested in a public

authority except after due and proper application of mind.

Any other view would amount to condoning a fraud upon

such power which the authority exercising the same holds in

trust only to be exercised for a legitimate purpose and along

settled principles of administrative law.

25.The next question then is whether the selection should

be finalized on the basis of the test held earlier or the matter

allowed to be re-examined by the authority in the context of

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the representation received by it. In our opinion the latter

course would be more in tune with the demands of justice

and fairness especially when a second test has been

conducted in which all the in service candidates have

appeared. The result of this examination/test has not,

however, been declared so far apparently because of the

pendency of these proceedings. If upon due and proper

consideration of the representation received from the

candidates who were unsuccessful in the first examination,

the competent authority comes to the conclusion that the

test earlier held suffered from any infirmity or did not give a

fair opportunity to all the candidates, it shall be free to pass

a fresh order cancelling the said examination after recording

such a finding in which event the second test conducted

under the directions of the Tribunal would become the basis

for the selection process to be finalized in accordance with

law. In case, however, the authority comes to the conclusion

that the earlier test suffered from no procedural or other

infirmity or did not cause any prejudice to any candidate,

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the second test/examination shall stand cancelled and the

process of selection finalized on the basis of the test held

earlier. The order passed by the High Court is to that extent

modified and the present appeals disposed of leaving the

parties to bear their own costs. In order to avoid any delay

in the finalization of the process of appointments which have

already been delayed, we direct that the competent

authority shall pass an appropriate order on the subject

expeditiously but not later than two months from today.

……………………………..…J.

(AFTAB ALAM)

………………………..………J.

(T.S. THAKUR)

New Delhi

July 7, 2010

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