JUDGMENT O.P. Garg, J.
1. Both these writ petition deal with the same controversy. Counter and rejoinder affidavits have been exchanged in writ petition No. 38406 of 1996. With the consent of the Parties Counsel, counter and rejoinder affidavits filed in the writ petition No. 38406/ 96 shall also be read in the connected writ petition No. 36605 of 1997. Heard Sri Vijay Bahadur Singh, learned Counsel for the petitioners and Sri Lalji Sinha, learned Counsel for the respondents.
2. By means of these two writ petitions under Article 226 of the Constitution of India, it is prayed that the employment notice No. 1 of 1.996 issued on 1.11.1996 for recruitment of the Constables in Railway Protection Force (for short 'RPF) be quashed and the respondents be directed not to appoint any candidate selected in pursuance of the said notice of employment. It is further prayed that the recruitment made in pursuance of the employment notice No. 2/94 be directed to be given effect to and the respondents be commanded to declare the result of the said recruitment and the petitioners, if successful, may be appointed. The facts leading to the present two petitions lie in a very narrow compass. The woodcut profile of the case is as follows:-
In order to fill up 485 vacancies of Constables in RPF in the pay scale of Rs. 825-1200 in North Eastern Railway, an employment notice No. 2 of 1994 was published on 2.6.1995. In all 1, 10, 669 candidates applied for the said post out of which amount 90,000 forms were found in order. After scrutiny of the forms, call letters were issued to 78,000 candidates, out-of whom 24,563 appeared for physical and efficiency test between the period 6.5.1995 to 6.8.1995. The Railway Board, by letter dated 18.4.1995, constituted a committee for recruitment, which comprised of (i) Sri Mawa Lal, the than Divisional Security Commissioner/ RPF, Northern Railway, Lucknow,(ii) Sri Sekey Ram, retired Commandant and (iii) Sri S.A. Hussain, Divisional Security Commissioner/RPF, Crime Wing .Western Railway, Bombay. The recruitment committee submitted the result to the Director General, RPF, Railway Board, respondent No. 2 on 5.1.1996. Papers connected with the result of the recruitment were sent for scrutiny to the Chief Security Commissioner, N.E.R., Gorakhpur who, in turn, appointed the three member Scrutiny Committee. It was found on scrutiny that there were certain serious irregularities infirmities and short comings in the recruitment and broadly speaking, the four heads, under which these shortcomings and irregularities fell, were as follows:-
(i) Excess recruitment to the extent of 99 candidates have been empanelled as against the notified vacancies,
(ii) Certain S.C. candidates who had secured more marks were not brought on merit list whereas other S.C candidates who had secures less marks have been brought on panel.
(iii) Violation of extent rules/ circulars information of the panel,
(iv) Procedure followed by the Recruitment Committee has not been elaborated in that at no point of time the original application forms were scrutinised/ compared and as such the possibility of impersonation by affixing different photographs in the call letter at various stages cannot be ruled out.
3. Above irregularities were brought to the notice of the Chairman of the Recruitment Committee, namely, Sri Mewa Lal and he was asked to remove and rectify the irregularities and mistakes in the result as pointed out by the Internal Scrutiny Committee appointed by the Chief Security Commissioner, Gorakhpur. Sri Mewa Lal, it is alleged, refused to rectify and correct the mistakes/ irregularities. The Director-General, R.P.F.. taking into consideration the various irregularities, short-comings and on the ground that there were serious complaints of corruption, cancelled the whole process of recruitment, as well as result. He, it appears issued certain directions to maintain high standards and excellence in the recruitment process as well as transparency. On 4.9. 1996, a news item was published that the recruitment held in pursuance of the employment notice No. 2/94 has been cancelled and rescinded. Another employment notice No. 1/96 was issued and published in local dailies on 1.11.1996 inviting applications for 800 posts of Constables, RPF limiting the applicants from the Provinces of Uttar Pradesh and Bihar.
4. The case of the petitioners is that the action of the respondents canceling the earlier selection/ recruitment and issuing fresh advertisement, is wholly illegal, arbitrary and contrary to the principles natural justice as well as violative of the rights of the petitioners guaranteed under Article 16(1) of the Constitution of India; that the earlier recruitment was rescinded on political pressure due to the change in the Ministry of Railways and was motivated: that the final result of the recruitment was cancelled on flimsy ground to please the political bosses. It is in the context of the above facts that the various reliefs as aforesaid, have been claimed in the present two writ petition. On behalf of the respondents Nos.l& 4, Sri R.K. Misra, the then Security Commissioner ,N.E. Railway, Varanasi, filed a counter affidavit maintaining that the recruitment was rightly cancelled in view of the serious and glaring irregularities, infirmities and shortcomings which the Chairman of the Recruitment committed refused to remove, as well as the complaints of corruption. It is also pleaded that the petitioners have no right to challenge the order of cancellation of the recruitment process, which was necessitated in account of the above shortcomings, particularly when it has been notified that all the applicants who participated in the previous recruitment may also appear in the subsequent recruitment test. According to the respondents, the petitioners have no legal right for appointment on the posts of Constable RPF even though they have been successful in the test or their name find place in the select list.
5. Sri Mewa Lal, who was Chairman of the Recruitment Committee and has been arraigned as the party to the petition, has also filed a counter affidavit repelling the stand taken by the other respondents and virtually supporting the case of the petitioners.
6. Sri Vijay Bahadur Singh, learned Counsel for the petitioners, though had advanced elaborate arguments, has succinctly put the case of the petitioners virtually in a strait-jacket, that once the petitioners were permitted to appear in the recruitment test, process of which had been completed upto the final stage, it should be brought to a logical conclusion by declaring the results and that the act of the Director-General, Railway Protection Force (for short. 'D.G./RPF), New Delhi in scrapping and setting at naught the entire process of recruitment is nothing but arbitrary and illegal, the fervent and persuasive plea of Shri Lalji Sinha, learned Counsel appearing on behalf of the Railway Board and other allied respondent, is that even if the selection process is complete and result has been declared, a candidate who is on the select list, has no indefeasible right to get appointment unless action is mala fide or arbitrary as has been laid down by a Constitution Bench of the Supreme Court in Shandarsan Dash v. Union of India, A.I.R. 1991 SC 1612 : (1991) 2 UPLBEC 933 (SC), in which it was observed that, 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. "Sri Sinha also placed reliance on the decision of the Supreme Court in Union Territory, Chandigarh v. Dil Bagh Singh and Ors., A.I.R. 1993 SC 796, Preet Pal Singh v. State, 1994 (5) SCC 695, Hanuman Prasad and Ors. v. Union of India and Anr., Judgment Today 1996 (8) SC 510 : (1997) 1 UPLBEC 93 (SC), and Biswa Ranjan Sahoo and Ors. v. Sushant Kumar Dinda and Ors., Judgment Today 1996 (6) SC 515, to fortify his contention that the order of cancellation of the recruitment held for the post of Constable in Railway Protection Force in North Eastern Railway, cannot be made' the subject matter of challenge before this Court, particularly when the DG/RPF has taken the bold decision in view of the numerous irregularities and illegalities, having been detected and established on scrutiny of the recruitment papers by a committee constituted by the Chief Security Commissioner, N.E.R., Gorakhpur. Sri Sinha also placed before the Court the original record which contained 'notes and orders' on the basis of which the order scrapping the entire process of recruitment was passed. Before scrutinising the grounds and the circumstances on which the recruitment came to be scrapped it would be proper to clear the cob-webs created around the exact legal position about the cancellation to otherwise of the recruitment process.
7. There can be no quarrel about the law laid down by the Constitution Bench of the Supreme Court in Shankarson Dash's case (supra), in which it has been held that 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 to indicate, the state has to not legal duty to fill up all or any of the vacancies. Though this is the ratio of the case in Sankarson Dash, the fact remains that it is hedged with certain further observations which cannot be overlooked. The Constitution Bench was conscious of the fact that there may be certain circumstances in which recruitment process may not be required to be cancelled or a decision of the competent authority may be not only arbitrary but capricious. Conscious of this fact, the Constitution Bench further observed that through oridinarlly notification merely amounts to an invitation and the candidates who apply for recruitment do not accquire any right to the post 'it does not mean that the State has the licence of acting in an arbitrary manner. The decision 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 merits of the candidates as reflected at the recruitment test, and no discrimination can be permitted.' With reference to the decisions in State of Haryana v. Subhas Chander Marwah, AIR 1973 SC 2216; Miss Neelma Shangla v. State of Haryana, AIR 1987 SC 169 and Jitendra Kumar v. State of Punjab, AIR 1984 SC 1850. The Constitution Bench observed that no discordant note is to be found in the three aforesaid decisions. Therefore, the much, which has been created on the basis of Shankarson Dash's case (supra), that the order of cancellation of the recruitment process is sacrosanct and the candidates who have applied for the various posts have no right to claim appointment merely because the advertisement tantamounts to an offer, stands exploded In Dil Bagh Singh's case (supra), Supreme Court found that a 'dubious select list, was prepared in an unfair and injudicious manner; similarly in Preetpal Singh's case (supra), selection was not objective and fair, and in Hanuman Prasad's case (supra), mass copying and mal-practices were resorted to and there was a preliminary report of C.B.I, that indicated that mal-practices had been committed, and consequently, the orders for cancellation of the results/recruitment were upheld. The Supreme Court has not upheld the cancellation of selection of the recruitment process on the ground that it was beyond the pale of challenge before the Courts even though the concerned authority has acted arbitrarily or in an unfair manner, but on proof of the facts of failure to adopt common eligibility criterion, charges of corruption levelled against the members of the Selection Board and blatant and flagrant disregard of the procedure prescribed and the like. In some of the cases, the Supreme Court has gone even to the extent of observing that in case of mass copying, corruption and order serious irregularities and illegalities, the principles of natural justice are not required to be followed by issuing notices to the affected persons and hearing them. A reference in this regard may be made to the case of Maharashtra State Board of Secondary Education v. K.S. Gandhi and Ors., JT 1991 (2) SC 296 and Bishwaranjan Sahoo (supra).
8. The law, therefore, is well settled that mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment, but that is only one aspect of the matter. The other aspect is the obligation of the State to act fairly. The whole exercise cannot be reduced to a farce. The observations made in Asha Kaul (Mrs.) and Anr. v. State of Jammu and Kashmir and Ors., (1993) 2 SCC 573, may profitably be adverted to. In that case, the select list prepared by the Public Service Commission was sent for approval of the Government. The list was kept pending by the Government on being prima facia satisfied with some of the complaints received against the selection process. Subsequently, the State Government asked for the list of 20 candidates and appointed them. Names of rest of the 7 candidates in the list were not approved. It was held that the Government has no absolute discretion in the matter; it must act fairly; it cannot pick and choose or approve a part of it and reject the other part and must record reasons for disapproval of one set of candidates and approval of other candidates. When selection list is sent in accordance with the requisition of the Government, it must accord its sanction irrespective of the number ot vacancies. The Government's action in rejecting a part of the list was found to be unsustainable. The most striking observation in Ashs Raul's case (supra), is that "the Government cannot quietly and without good and valid reasons nullity the whole exercise and tell the candidates when they complain that they have no legal right to appointment. No Government can adopt such a stand with any justification today." Every in K.S. Gandhi's case (supra), in which the order of cancellation of result of account of mass copying was cancelled, the Supreme Court held that if the order cancelling the examination came to be passed, the record should indicate the reason though the order may not contain reasons. Every candidate who has applied for a particular post in pursuance of the advertisement and who has gone through the rigour of the entire process of selection, in my view, is entitled to have a legitimate expectation for being considered for appointment, may be that he is ultimately not appointed. Appointment on a post in one thing while consideration for appointment is another. Both the things cannot be mixed up and the confusion, if any, in the mind of all and sundry, must be clear with reference to these two aspects of the matter, which are quite separate and distinct. The order of cancellation of the recruitment process cannot be attached with that much of sanctity as it may render it inviolable or beyond the pale of scrutiny. The law is that if an order has been passed to set at naught the entire selection process, it has to conform to the test of reasonableness and fairness. The order should be passed bonafide and must be passed on some concrete and tangible material and certainly it cannot be the outcome of an arbitrary act imbued with subjectively.
9. The Courts certainly have the power and authority to consider the efficacy and sufficiency of the grounds and the material in the wake of which an order of cancellation came into being.
10. In the backdrop of the above legal position, now it is the time to scrutinise the actual events in sequence which have been made basis for scrapping the recruitment process. The relevant original record was brought before the Court. The notes and orders from Serial Nos. 3 to 8 jotted down from 9.1.1996 to 31.5.1996 are crucial for the purpose. On the submission of the proceedings of recruitment Sri Mewa Lal, Chairman, the Board sent the proceedings back to Chief Security Commissioner, N.E. Railway for scrutiny and rectification of the mistakes and discrepancies, as it was considered that it is the prerogative of the Chief Security Commissioner to approve the process of recruitment of constables. The Scrutiny Committee found certain rectifiable mistakes and discrepancies. Serial No. 7 of the note sheet indicates that Sri Mewa Lal, Chairman, submitted corrected proceedings of recruitment of candidates alongwith comments on each point raised by the Scrutiny Committee. Through Serial No. 8 of the notes, the Chief Security Commissioner forwarded the proceedings of the recruitment alongwith parawise comments on the report of the Scrutiny Committee with the recommendation to the Board that the panel prepared by the Recruitment Committee may be approved or disapproved. There is a detailed note of IG/ RPF Headquarters dated 17. 4.1996 submitted to the DG/RPF in which it was recommended that "if approved, the recruitment proceedings of N.E. Railway may be returned to Chief Security Commissioner, North Eastern Railway to set right the infirmities and satisfy himself that the same are in order and approve/disapprove the same exercising his own authority as per extent rules." The suggestion, in short, was that the matter may be left on the Chief Security Commissioner, N.E. Railway who has the final say in the matter, Amazingly, the DG/ RPF, Sri Joginder Singh passed the following order on 22.4.1996 on the above note of IG/RPF Headquarters :-
"The entire recruitment has to be scrapped. Fresh guidelines are to be issued relating to recruitment process. I do not want RPF to get a bad name.(It is) the subject-matter of C.B.I, enquiry. Please prepare clear directive as discussed. We have to lay down very clear procedure. The three commandants would be nominated by the DG. They would be from different regions. All the recruitment process would be over in seven days. CSC from different Railways would have to be personally present and supervise the recruitment. Preverification letters signed by the SDM would be accepted, as is done in CRPF/ BSF/ITBP/CISF. Please get the details of the procedures by personally going to the above organization and put up a clear directive. We should not only be honest and correct, but also appear to be so. Clear norms would have to be laid down. That is first preference would be given to people having higher education than Matric. Those having special Qualifications like knowledge of typing, computers, skills would be preferred over others. There would be no written test. You will have to accept the educational certificates after through scrutiny. Because if we have to have tests it has to be in all Indian languages recognised in the Constitution. Please take quick action and directive to be issued in one week's time, definitely by 30.4.1996."
In pursuance of the above order, formal orders through Fax scrapping the recruitment were issued under the directions of the DG/RPF on 31.5.1996. It appears that the DG/RPF was required to discuss the matter with the Minister of Railways. DG/RPF, prepared a note dated 20.6.1996, in which he has stated that in view of the discrepancies pointed out by the Scrutiny Committee, he had Scrapped the recruitment proceedings. The matter was discussed with the Private Secretary to the Minister and the file was returned back. Learned Counsel for the petitioners also produced before me Photostat copy of the document which indicated that Home Ministry was not happy with the selection and had apprised the DG/RPF of certain complaints which indicated that passing of money had a vital role to play in the selection of the candidates.
11. As noted in the beginning, the Scrutiny Committee found the following four faults with the panel prepared by the Recruitment Committee :-
(i) excess recruitment to the extent of 99 candidates;
(ii) violation of extant rules/circulars information of the panel;
(iii) certain S.C. candidates who had secured more marks were not brought or merit list, and
(iv) procedure following by the Recruitment Committee has not been elaborated in that at no point of time the original application forms were scrutinised/compared and as such the possibility of impersonation by affixing different photographs in the call letter at various stages cannot be ruled out.
The above irregularities/Shortcomings were rectifiable. No officer of the department, even the DG/RPF had found that the above irregularities cannot be rectified. The first irregularity relates to the excess recruitment to the extent of 99 candidates. This point has been clarified by Sri Mewa Lal in his counter affidavit. He has given out that originally the advertisement was for recruitment for 485 posts of RPF constables but subsequently, 99 vacancies were sanctioned by the Railway Board and the said information was conveyed by the Chief Security Commissioner to the Recruitment Board who also extended the date of recruitment as 99 posts more were to be added for purpose of recruitment in terms of CSC/RPF, N.E.R. Gorakhpur letter No. E/P/227/1/3 Pt. (iii), dated 31.8.1985 making up a total 534 vacancies for which recruitment was to be made. This fact, as disclosed by Sri Mewa Lal remains unchallenged. Even otherwise, if there has been same excess recruitment, the result could be slashed to the extent of excess recruitment by scoring off the names of the candidates from the bottom of the list. The second objection raised by the Scrutiny Committee about the violation, of extent rules/circulars information of the panel is sweeping in nature. It is neither here nor there. No specific instance of violation of extent rules or circulars has been set out. This objection, therefore, is to be ignored. The third shortcoming In the panel found by the scrutiny committee Is that certain scheduled caste candidates who had secured more marks were not brought on merit list. This again is an objection which merits outright rejection, if certain candidates who had not qualified and could not be brought on the merit list, have been included in the merit list, their names could be struck off. On this point reference may be made to the decision of Supreme Court in Anamica Mishra v. U.P. Public Service Commission and Anr., A.I.R 1990 SC 461, in which, with regard to the written examination the sole objection was confined to exclusion of a group of successful candidates in the written examination from the interview. The Supreme Court held that there was no justification for canceling the written part of the recruitment examination of all the candidates. On the other hand, the situation could have been appropriately met by setting aside the recruitment and asking for a fresh interview of all eligible candidates on the basis of the written examination and selecting those, who on the basis of written and freshly held interview, became eligible for selection. The fourth irregularity pointed out by the Scrutiny Committee was that the procedure followed by the Recruitment Committee has not been elaborated as at no point of time the original application forms were scrutinised/compared. The objection that 'possibility of impersonation by affixing different photographs in the call letter at various stages cannot be ruled out1 is nothing but hypothetical. A close study of the objections made by the Scrutiny Committee would lead one to the conclusion that the Committee was out to find faults with the panel prepared by the Recruitment Committee. It was a case of recruitment in which more than 1,10,000 candidates applied, out of whom call letters were sent to about 78,000 candidates and more than 24,000 candidates did appear in the various tests. The irregularities pointed out by the Scrutiny Committee in a recruitment which dealt with such a large number of persons were natural and bound to occur in the normal course. The fact that there was no attempt to harmonise hum-drum details speaks of rugged truthfulness and purity of the entire recruitment process. The Department should have done well if the irregularities were rectified either at the level of the recruitment Committee or the Chief Security Commissioner. The Chairman of the Recruitment Committee did submit the corrected proceedings and in respect of other irregularities, it was submitted that they may be corrected at the level of the Chief Security Commissioner. It appears that refusal by the Recruitment Committee to set right all the alleged irregularities was made the prestige point and hurt the vanity of the DG/RPF. He had jumped to an unfounded conclusion that the entire selection process requires to be scrapped. The observations made by the DG/RPF quoted above, indicate that he was bubbling with an anxiety to purge the existing system of recruitment ; he had his own innovative ideas and wanted to bring about radical changes in the recruitment process. Imbued with the re-formative zeal the DG/RPF, without realising the consequences of his act, straightaway scrapped the recruitment process which had already reached the final stage. Nobody can quarrel with the laudable ideas of the DG/RPF as the transparency, in general and in the recruitment process, In particular, is the cry of the day a loud cry, which is the top in of the mind of everybody. The DG/RPF, however, had to shun the sensitive attitude which he had entertained in the matter as his observations and attitude for radical and innovative changes in the recruitment system had the effect of jettisoning the result of already completed recruitment. The fanatical approach adopted by the DG/RPF in scrapping the entire recruitment could not be Justified in view of the rectifiable alleged irregularities and shortcomings, brought out by the Scrutiny Committee. This fact cannot be lost sight that no body below the DG/RPF had recommended for scrapping of the recruitment ; there was no allegation, whatsoever on record that there were complaints that money had a part to play in the recruitment and not even a single instance has come to light that money had changed hands. The DG/RPF by one stroke of pen, in his enthusiasm to re-impose the new procedure for the future recruitment also scrapped the already concluded recruitment. The order passed by the DG/RPF smacks only of subjectivity.
12. A faint suggestion came to be made that in the recruitment of the candidates for Northern Railway, certain complaints of corrupt practice and passing of money were made and the matter was entrusted to C.B.I, and after investigation, the C.B.I, has submitted a charge sheet against Sri Mewa Lal, Chairman of the Recruitment Board who has since retired. The allegations made in respect of she recruitment of Northern Railway cannot be transplanted to the present recruitment in hand. Now to say that in respect of the present recruitment there were complaints of corruption is too late. As a matter of fact, till the time a decision to scrap the result was taken, there was not even a faint suggestion or echo about the complaints of corruption and mal-practices. The scope of the allegations cannot now be enlarge before the Court. In Mohinder Singh Gill and Anr., v. the Chief Election Commissioner, New Delhi and Ors., A.I.R. 1978 SC 851, the Supreme Court observed 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, gets validated by additional grounds later brought out. Reliance was placed on the following observations made in Gordhandas Bhani's case, A.I.R. 1952 SC 16 at page 18) :-
"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 effect the action and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
The Supreme Court made it clear that the orders are not like the old wine becoming better as they grow older.
13. I am conscious of the fact that a selection process is not sacrosanct. It can be cancelled, scrapped or annulled if there is concrete and reliable evidence of large scale bungling, malpractice, corruption, favoritism and nepotism of the o like of if there is a violation of fundamental procedural requirements. It is true that fabrication would obviously either be not known or no one could come forward to bear the burnt. Nevertheless, there should be wealth of material to take the extreme and drastic step of scrapping the whole recruitment process, particularly when it has reached the final stage. The cancellation or scrapping of the recruitment has very serious repercussions and impact not only on the candidates who have undergone the rigorous of the test but on the general public and the Department itself. It also casts aspersions on the members of the Recruitment Committee. I am constrained to observe that the order of scrapping of the recruitment by the DG/RPF, may not be mala fide but is in utter violation of the established norms and devoid of the considerations fairness and reasonableness. The order is the product of irrelevant considerations and has been passed in a cloistered manner. The fact that there has been non-application of mind to the real question, i.e., of removal of the discrepancies and irregularities, is eloquent of the arbitrariness on the part of the DG/RPF. The recruitment has been doled out in a wholly arbitrary manner.
14. Sequel to the above finding is the controversy about the extent of power of the Court to interfere with the discretion of the executive head in the matters of policy decisions as well as the decisions which would affect a large number of persons. The rule of law permeates the entire fabric of the Constitution and, indeed, forms one of its basic features. It means that the society is to be ruled by law and not by men. Nobody how high he may be is above the law, which is supreme. Every organ of the State under the constitution is regulated and controlled by the rule of law.
15. In a welfare state, it is inevitable that the jurisdiction of administrative bodies increases at a rapid rate. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just-manner (Jennings) English Constitutional Law, page 47). Non-arbitrariness, being a necessary concomitant of the rule of law, it is imperative that all actions of every public functionary in whatever sphere, must be guided by reason and not humour, whim, caprice or personal predilections of the persons entrusted with the task on behalf of the State and exercise of all power must be for public good instead of being an abuse of the power J.S. Verma, J. (as His Lordship then was ) in Km. Srilekha Vidyarthi v. State of U.P., (1991) 1 SCC 212. Rules of law is thus the antithesis of arbitrariness. Rule of law can thus make a significant contribution to the peaceful evolution of society, for it ensures smooth transition from the old to the new (H.R. Khanna : Liberty Democracy and Ethics ( First Edition) (1979) pages 38, 39). The problem of reconciling and harmonising the opposite claims and interests can be overcome only by independent Courts, which may hold the balance between, the citizen and the State and compel the Government and other authorities to conform to the law.
16. Certainly the most controversial and at the same time most fascinating role of the Court is the exercise of the power of judicial review. It is commonly viewed with almost equal amount of reverence and suspicion. Briefly stated, the Judicial review is the power of the Court to uphold constitutional values by striking down any illegal arbitrary, unreasonable and capricious action of the authorities (De Smith , Judicial Review of Administrative Action (1980 ) 280, Wade, Administrative Law (1982) 548-50. Jain and Jain, Administrative Law).
17. It is a cardinal principle of our constitution that no one, howsoever, highly placed and no authority, however, lofty, can claim to be the sole Judge of its power. The judiciary is the interpreter of the constitution and to the judiciary is assigned the delicate task to determine what is the power conferred on each branch of Government, whether it is limited and if so, what are the limits and whether any action of that branch transgresses such limits, it is for the judiciary to be uphold the constitutional all values and to enforce the constitutional limitations. The power of judicial review is an integral part of our constitutional system. The Supreme Court has taken the view that if there is one feature of our Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquestionably, part of the basic structure of the Constitution (1991) 3 SCC 91, G.B. Mahajan and Ors.,' v. Calgaon Municipal Council and Ors.; (1991) 4 SCC 485, HC Suman and Ors., v. Rehabilitation Ministry and Ors. and (1991) 3 SCC 239, U.P. State Road Transport Corporation v. Mohd. Ismail and Ors.; (1991) 1 SCJ 521, Subhas Sharma v. Union of India and Hon'ble Rangnath Misra (EX. Chief Justice of India) in Subhas Sharma v. Union of India, (1991) 1 SCJ 521.
18. In our modern day society, dominated by complex legislative programmes and large-scale Government involvement in the every day lives of all of us, judicial review of administrative action is essential for the protection of individuals illegally harmed by that action. The frontiers of the power of judicial review have considerably expanded. Even where the function is said to be administrative, the Court will not hesitate to intervene in a suitable case if it is necessary in order to secure fairness.
19. It is a well-settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and It must scrupulously observe those standards on plain of invalidation of an act in violation of them. Over the years the Supreme Court as well as High Courts have shown a great deal of vitality in controlling administrative discretion of the executive authorities. The parameters of judicial review find their source in two celebrated decisions of the English Apex Courts, the one line of thought is expressed in the Wedenesbury case, 1948, and the order flows from the decision in C.C.S.U. case (1985). Lord Green in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, 1948 (1) K.B. 223 (p. 229) observed as follows : -
" It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory descretions often use the words "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider, if he does not obey those rules, he may truly be said often is said, to be acting ' unreasonably'. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers of the authority.
In another, it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith and in fact, all these things run into one another."
Lord Green also observed (p.230) :
"....................It must be proved to be unreasonable in the sense that the Court considers it to be a decision that no reasonable body can come to. It is not what the Court considers unreasonable. The effect of the legislation is not to set up the Court as an arbiter of the correctness of one view over another."
20. Therefore, to arrive at a decision on reasonableness, the Court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four comers of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the Court to substitute its view.
21. The principles of judicial review of administrative action were further summarised in 1985 by lord Diplock in GCSU v. Minister for Civil Services, 1985 (1) AC 374, as illegality, procedural impropriety and irrationality. He said more grounds could in future become available, including the doctrine of proportionality, which was a principle followed by certain other member of the European Economic Community. Lord Diplock observed in the case as follows:-
".................................Judicial review, as I think, developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first grounds I would call 'illegality', the second 'irrationality', and 'the third' procedural impropriety. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community......"
Lord Diplock explained 'irrationality' as follows :-
"By irrationality, I mean what can now be succinctly be referred to as "wednesbury 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."
The above observations in the two English cases were considered by Supreme Court in a recent decision in Union of India and Anr. v. G. Ganayutham, Judgment Today 1997 (7) SC 572. The law as has come to be settled is that the Court would not interfere with Administrative decision unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was out-rageous in its defiance of logic or of accepted moral standards. In an earlier decision in Ramana Dayaram Shetty v. International Airport Authority of India and Anr., 1979 (3) SC 489, the following celebrated observations were made by Hon'ble Supreme Court :-
'It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess, the Government connot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases but its action must be in conformity with standard or norms which is not arbitrary, irrational or irrelevant. The power of discretion of the Government in the matter of grant of largess, including award of jobs, contracts, quotas, licences etc., must be confined and structured by rational relevant and non-discriminatory standard or norm and if the Government departs from such standard of norm in any particular case or cases, the action of the Government would be liable to be struck down."
Almost about three decades back, Supreme Court in S.G. Jaisinghani v. Union of India, A.I.R. 1967 SC 1427, indicated the test of arbitrariness and pitfalls to be avoided in all State actions to prevent the vice, in a passage as under:-
"In this context it is important to emphasize that the absence of arbitrary poser is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion when conferred upon executive authorities, must be confined within clearly defined limits. The Rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predicatable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law (See Dicey - "Law of the Constitution" -Tenth Edn., Introduction ex.)." Law has reached its finest moments " state Douglas, J. in United States v. Wunderlick, 1951-342 US 98 : 96 Law Ed. 113, "When it has freed man from the unlimited discretion of some ruler.....where discretion is absolute, man has always suffered." It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkes, 1770-98 ER 327, "means sound discretion guided by law. It must be governed by rule, not humour. It must not be arbitrary, vague and fanciful."
22. During the entire journey in the field of judicial review, long strides have been taken by the various decisions of the Supreme Court, which it is not necessary to recount, with a view to avoid burdening this judgment unnecessarily. The scope of the judicial review in the cases where State action is afflicted by arbitrariness stands expanded. In para 38 of Km. Srilekha Vidhyarthi's case (supra), it is observed:
" It has been emphasised time and again that arbitrariness is anathema to state action in every sphere and wherever the vice percolates, the Courts would not be impeded by technicalities to trace it and strike it down. This is the surest way to ensure the majesty of rule of law guaranteed by the Constitution of India."
The law must, therefore, now be taken to be well settled that even in an administrative action, which involves civil consequences, the doctrine of fairness in action, as opposed to arbitrary, fanciful or oppressive- must be held to be applicable. The things as have emerged, the petitioners have acquired the fundamental right that shall not be subjected to arbitrary, unfair, unreasonable and irrational action of the Government or its instrumentalities, meaning thereby, a citizen has a right that his matters be considered in a manner which is non-arbitrary. The state action which defeats any constitutional mandate and is directly in violation of the guarantees enshrined in Article 14 of the Constitution is, per se, arbitrary. To say the least, the contents of the counter affidavit filed on behalf of the respondents - Railways to disclose the reasons for cancellation of the recruitment process are beautifully vague and convey nothing of substance and cannot furnish a tangible support to the order of cancellation.
23. Sri Lalji Sinha learned Counsel for the respondent Railways emphatically asserted that since the impugned order was passed by a high ranking officer of the Railways, in whom high trust is reposed, it should not be lightly taken by the Court. The argument, though attractive at the first sight, does not go too far. This aspect of the matter also came to be considered by the Supreme Court in a number of decisions, particularly in Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SC 101. The matter was dealt with by Hon'ble Sawant, J. of the Supreme Court in Paras 230 to 240. It was observed that there is need to minimise scope of arbitrary use of power in all walks of life. It is inadvisable to depend on the good sense of the individuals, however, high placed they may be. It is all the more improper and undesirable to expose the precious rights like the rights of life, liberty and property to the vagaries of the individual whims and fancies. Individuals are not and do not become wise because they occupy high sets of power, and good sense, circumspection and fairness does not go with the posts, however, high they may be. There is only a complacent presumption that those who occupy high posts have high sense of responsibility, the presumption is neither legal nor rational. History does not support it and reality does not warrant it. In particular, in a society pledged to uphold the rule of law, it would be both unwise and impolitic to leave any aspect of its life to be governed by discretion when it can conveniently and easily be covered by the rule of law. Hence, the absence of guidelines cannot be defended on the ground that the discretion is vested in high authorities. Hon'ble K. Ramaswami, J. in Para 319, observed as follows :-
"Conferment of power on a high rank officer is not always an assurance, in particular when the moral standards are generally degenerated that the power would be exercised objectively, reasonably, conscientiously, fairly and justly without inbuilt protection to an employee. Even officers who do their duty honestly and conscientiously are subject to great pressures and pulls. Therefore, the competing claims of the "public interest" as against "individual interest" of the employees are to be harmoniously blended so as to serve the societal need consistent with the constitutional scheme."
If the action is palpably arbitrary, it would hardly be of any consequence that the order was passed by a very high-ranking authority or dignitary as there is no presumption of infallibility in the case of an officer howsoever high may be. This court has the duty to correct every obvious ultra vires or illegal exercise of powers or misuse of the same. Failure to do so would send wrong signals that the Courts legitimises illegal and wrong actions.
24. In the almost similar circumstances, this Court has set aside the order of cancellation of the recruitment by order dated 8.4.1997 passed in Civil Misc. Writ No. 39772 of 1996 - Sri Niwas Singh and Ors. v. Union of India and Ors., Hon'ble Dr. B.S. Chauhan, J. (In 1995 (2) U.P.L.B.E.C. 985). Ram Darsh Rai and Ors. v. State of U.P. and Ors., Hon'ble Sudhir Narain, J. had also taken the view after discussing all the rulings on the point that the action of the respondents in that case canceling the selection process was contrary to the provisions of a particular law. Both these authorities fortify the view taken by me in this judgment.
25. In view of the finding that DG/RPF had scrapped the entire recruitment process in light vein without realising the implications of his orders and that the order was passed on no surer foundations and in unreasonable and irrational manner, the impugned order of cancellation of the retire recruitment process must, therefore, perish on the above grounds. Since the order of scrapping of the recruitment process is being quashed on the grounds mentioned above, it is no longer necessary to consider and determine the other ancillary grounds taken in the writ petition.
26. In the result, both the writ petitioners succeed and are allowed. The subsequent employment notice/notification No. 1 of 1996 issued in November, 1996 for recruitment of Constables in Railway Protection Force North Eastern Railway is hereby quashed and the respondents are directed to declare the result of the recruitment made in pursuance of the notice/notification No. 2 of 1994 within a period of two months from today. If the petitioners are finally selected and are declared successful they shall be appointed on the post of constables, Railway Protection Force North Eastern Railway.