# Union of India through G.M., N.R. & another v. V.K.M. Tripathi & others

- **Citation:** (2001) 1 ILRA 118
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-through-g-m-n-r-another-v-v-k-m-tripathi-others-39729
- **Pages:** 9

## Text

118 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
is moved, the respondents may reckon
with the feasibility of a temporary
appointment if the family is still reeling
under financial straits."

12. The division bench in Mohd.
Danish Siddqui (supra) has held that this
court in Pushpendra Singh (supra) did not
issue any direction to state government to
consider the claim of the petitioner. The
learned counsel for the petitioner could
not point out any such direction in
Pushpendra Singh (supra). The District
Basic Education Officer, therefore, did
not commit any error is rejecting the
application
of
the
petitioner
for
appointment under the Dying in Harness
Rules.

For the aforesaid reasons this writ
petition
fails
and
is
accordingly
dismissed.

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By the Court

1. These two writ petitions arise out
of a common judgement and order passed
by
Central
Administrative
Tribunal,
Allahabad Bench, Allahabad in Original
Applications No. 180 of 1998 and 750 of
1999. Since, common questions of law
and fact are involved in both these writ
petitions, they were heard analogously
and are disposed of by this judgement.
1All] Union of India through G.M., N.R. & another V. V.K.M. Tripathi & others
119
2. Railway Recruitment Board (for
short " the Board) Northern Railway,
Allahabad
issued
advertisement
vide
employment notice no. 3/96-97 inviting
applications from eligible candidates for
selection of different categories of posts
numbering 18 of which category no. 4
relates to Section Engineer (P. Way).
There were in total seven posts of which
three relate to general category, three to
O.B.C. and one to Schedule caste.
Respondents no. 1 to 5 being Engineers
applied to the said posts and appeared in
the written test conducted by the Board.
After merit list of 23 candidates was
prepared notice was published in the
news-paper
informing
successful
candidates to appear for viva voce test.
The roll number of respondent no. 1
Viand Kumar Mani Tripathi being not
there in the select list, he moved the
Central
Administrative
Tribunal,
Allahabad, respondent no. 6 challenging
the whole process of selection by filing
original application no. 180 of 1998. His
case in nut shell was that he had secured
106 marks out of full mark 120 but
surprisingly he was not declared to have
been selected whereas candidates having
secured 103 & 105 marks were selected
and called for viva voce test. To the
application, he attached a statement
indicating
the
roll
number
of
the
candidates and the marks secured by them
in the written test. He made serious
allegations against the Board and its
officials in conducting the selection
alleging that there were a lot of bungling
done at the behest of Sri S.P. Saroj, ExChairman of the Board and one Nipendra
Singh (respondents no. 2 and 3 in the
Original Application) for their personal
gain. According to him, they changed the
original copies of the answer sheets and
got the marks awarded in order to show
favour to those candidates of their choice.
It was further alleged that Sri S.P. Saroj
and Nipendra Singh were very close to
each other and the latter parted with his
Maruti Car to Sri Saroj as long as he was
holding the office of the Chairman,
Money power played a vital role in the
entire selection process and those who
could
grease
their
hands
become
successful to get their names included in
the merit list, but as he did not succumb to
such illegal demand his name was omitted
though he had secured good marks. It
was specifically alleged that with the
money
earned
Sri
Nipendra
Singh
constructed a house fitted with four A.Cs
in
Judges
Colony,
Stanely
Road,
Allahabad, besides he purchased property
at Nagpur City on payment of Rs.15
lakhs. Since the whole selection process
was vitiated, inasmuch as, the selection
was made on 'give and take' basis by S.P.
Saroj and Nipendra Singh, in order to
weed out corruption in the highest level a
roving enquiry should be conducted by
the C.B.I. While making all these
allegations he prayed that the Board and
its functionaries be directed to permit him
to appear in the viva - voce for the post of
Selection Engineer as he had secured
marks more than those whose names were
published in the select-list and in the
event he was found successful further
direction be given to appoint him on the
said post.

3. Having entertained the Original
Application
of
Vinod
Kumar
Mani
Tripthi, the Tribunal passed the interim
order that the viva voce test may be held,
but the result shall not be declared till the
next date. Pursuant to the said order, the
candidates whose names found place in
the merit list appeared in the viva-voce
test but the result was not declared.
120 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
Subsequently, the aforesaid interim order
was modified to the extent that the result
of the interview be declared and till
disposal of the case one post be kept
reserved so that in case the application
was allowed the vacant post would be
made available to Sri Tripathi, Even
thereafter when the Chairman of the
Board did not declare the result, four
successful candidates (respondents no. 2
to 5) applied for being impleaded as
parties and prayed for a direction to the
Chairman to declare the result. Initially
Chairman, took the stand that selection
process was fair and applied to the
Tribunal, to allow him to declare the
result of the interview. But after Sri P.K.
Gupta joined as Chairman the matter took
altogether a different turn. He moved the
Tribunal for permission to cancel the
selection since such a decision was taken
by the authorities of the Railway Board.
This led the respondents no. 2 to 5 to file
a separate Original Application No.750 of
1999. They asserted that their being no
acceptable
material
that
there
were
serious lapses or illegalities committed by
the Recruiting Agency in the process of
selection, the entire select list should not
be cancelled and therefore, the decision
taken by the authorities, to cancel the
selection was illegal and unsustainable in
law. If at all the authorities were of the
opinion that the secrecy could not be
maintained, in other words, the marks
secured by the candidates in the written
test could be made known to the public
blame must go to the Board but for that
successful candidates should not suffer.
They also challenged the decision of
Chairman for holding fresh interview
pursuant to the direction of Government
of India, Ministry of Railways. The Board
through its Chairman Gurnam Singh
Rekhi filed return urging that in the
matter of selection it is the usual
procedure to scrutinise the application
forms of the candidates at two stages one,
before the written examination and the
other before the viva-voce, so that any
discrepancy/ deficiency may not go
unnoticed. In the case on hand, the
application forms of Sri Vinod Kumar
Mani Tripathi and some others were
cancelled at the second stage of scrutiny
since the same were not properly filled -
in terms and conditions specified in the
employment notice. Therefore, no bias or
will could be imputed to the Board or its
functionaries for taking such a decision.
He asserted that with due fairness
interview was conducted by a panel of
seven members and there was no ground
warranting interference in the matter of
selection by the Tribunal. He, however,
urged that in view of leakage of the
answer sheets, direction should be issued
for necessary investigation as to how the
copies of confidential report pertaining to
evaluation of answer sheets could reach
the hand of Sri Tripathi. Sri Vinod Kumar
Mani Tripathi in his rejoinder affidavit
asserted that once his application was
accepted and he was allowed to sit in the
written test, his candidature should not
have been rejected when he was found to
have qualified having secured 106 marks
out of full mark of 120. He reiterated the
stand taken in his Original Application
that fraud and perjury was committed by
the Board in the process of selection,
therefore, the documents pertaining to the
recruitment in question should be made
public so that its manner of functioning in
the matter of selection could be judged.
Sri P.K. Gupta, who subsequently joined
as Chairman of the Board suspected the
fairness
in
the
process
of
written
examination for the reason that no secrecy
was maintained in the matter of awarding
1All] Union of India through G.M., N.R. & another V. V.K.M. Tripathi & others
121
marks and copy of the mark-sheet could
reach the hand of one of the candidates.
So, he made sample investigation of the
answer papers of top four candidates of
the merit-list and to his utter surprise
found that signatures of the invigilator
were forged when compared to remaining
answer sheet. That apart, those four
answer sheets were thicker, yellowish and
the stamp placed on the back-side thereon
had different colour of ink, font and style
as compared to the batch. Moreover,
question no. 120 which was a descriptive
type and was required to be written in
four or five lines was not attempted at all
by those four candidates presumably
being apprehensive that their handwriting
may be detected. Taking all these
circumstances into account, the whole
process of selection of twelve categories
of posts were cancelled.

In view of the pleadings of parties
the following issues came up before the
Tribunal for consideration.

(1) Whether cancellation of candidature
of Sri Vinod Kumar Mani Tripathi was
legal and proper?

(2) Whether cancellation of the process
of selection of category no. 4 in question
on the basis of the enquiry/investigation
by Sri P.K. Gupta was justified?

4. As regards issue no. 1, admittedly
Sri Tripathi was one of the candidates and
he appeared in the written examination
conducted by the Board. He was,
however, not called to appear viva-voce
test since according to the Board, during
second stage of scrutiny his application
form was found to have not been properly
filled in, inasmuch as, employment notice
number and the nature of post as well as
the category thereof were not indicated in
the application form. This being the only
ground of rejection of his application, the
Tribunal held that in view of the fact that
other information's furnished in the
application being sufficient to identify his
candidature, it was wrong on the part of
the Board to reject the application on
technical grounds. The Tribunal further
held that such technicality should not
have weighed with the mind of the Board
once
admit
card
was
issued
and
permission was accorded to sit in the
examination. So instead of rejecting the
application proper course would have
been to ask Sri Tripathi to supply the
omission
appearing
thereon.
These
findings
of
the
Tribunal,
in
our
interference of this court in exercise of
writ jurisdiction.

5. Sri Tripathi while challenging the
rejection of his application by the Board
made serious allegation questioning the
fairness
of
selection
alleging
that
corruption and favouritism played vital
role in the procession of selection. This
created suspicion in the mind of the
Chairman Sri Gupta who succeeded Sri
Rekhi that there may be some truth in the
allegation since copy of the mark-sheet
which was a part of the confidential
record reached the hands of Sri Tripathi.
So, in order to ascertain whether the
selection process was fair and proper Sri
Gupta made an enquiry, in course of
which he picked up the answer sheets of
top four candidates of the merit list and to
his utter surprise found the signatures of
the invigilator to be forged as compared
to the remaining answer-sheet. He
noticed the signature to be 'unsure' and
on hesitant line not in flowing manner.
Besides, the answer - sheets were thicker,
yellowish and different from the batch
122 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
and stamps appearing on the back of the
booklets were also found to be different in
colors ink and style. Over and above, on
going through the answer papers, he
found that descriptive question no. 20 was
not attended to by those four candidates
for fear of their hand-writing being
identified at the time of evaluation. On
these findings Sri Gupta was prima facie
satisfied that the examination was not fair
and the candidates resorted to evilpractice for being selected. This led him
to
take
a
decision
to
cancel
the
examination and consequent selection.
But since the matter was sub judice in the
Tribunal permission was sought before
giving effect to the decision. With regard
to the decision of the Chairman to cancel
the examination for the reasons as
aforesaid the Tribunal in paragraph 15 of
the judgement held that before taking
such extreme steps he should have tried to
bring on record the direct evidence,
inasmuch as, he should have summoned
and examined the invigilator to ascertain
whether the signatures appearing on the
answer-sheets are real or forged. Besides,
he should have also ascertained from the
invigilator and obtained an explanation
regarding change of texture and colour of
the
answer-sheets
and
the
stamps
appearing on the back thereof. So,
without holding any such fact finding
enquiry he should not have cancelled the
examination on the basis of personal
observation and opinion. Having held
thus, the Tribunal directed the Board to
allow Sri Tripathi to appear in the vivavoce test and to declare the final result of
the selection for the posts of Section
Engineer (P.Way).

6. Sri A.K. Gaur learned counsel
appearing for the petitioner Board though
challenged the findings of the Tribunal
recorded on both the issues, he however,
led stress on the correctness of the
findings and ultimate conclusion arrived
at on the issue no.2. He emphatically
urged that no malice or illwill can be
attributed to the Chairman of the Board
for taking a decision to cancel the
examination in question. His decision
being
administrative
one,
correctness
thereof cannot be judged with same rigour
as applied to judicial decision when
challenged in the higher court. He
submitted
that
the
findings
of the
Chairman are based on sound reasoning
and unless and until those are shown to
have suffered from unreasonableness and
lack of good faith judicial interference is
uncalled for and in that view of the matter
the decision of the Tribunal upsetting
those findings is unsustainable in law.

7. Per contra, learned counsel
appearing for respondents no. 2 to 5
submitted that the then Chairman Sri G.S.
Rekhi having admitted in the Application
No.1413 of 1998 filed before the Tribunal
that the selection process held by the
Board was fair and impartial his successor
Sri Gupta could not have gone back to
such admission and held otherwise saying
that irregularities were committed in the
selection process. Referring to the
judgement of the Supreme Court in the
case of Asha Kaul V. Jammu & Kashmir
JT (1993) 2 S.C. 688, it was contended
that in view of the settled proposition of
law that selection cannot be cancelled
arbitrarily and on flimsy ground, in other
words, decision to cancel can be taken
only after due enquiry, and in the present
case there being no enquiry whatsoever,
the findings of the learned Tribunal in not
giving approval to the decision of the
Chairman of the Board cancelling the
examination cannot be faulted with.
1All] Union of India through G.M., N.R. & another V. V.K.M. Tripathi & others
123
Elaborating the submission it was urged
that there was no tangible evidence that
the candidates who came out successful in
the written test had adopted any unfair
and illegal means and merely because one
of the successful candidates obtained the
copy of the mark-sheet, the same cannot
be sic a ground to cancel the examination.
It
was
lastly,
contended
that
the
respondents are Engineering Graduates
and being hopeful to get into public
employment appeared in the interview
and for no fault of theirs and without
giving them any opportunity of hearing
the Board took an ex-parte decision to
cancel the examination and if this
decision is approved their future would be
marred since they being over-aged cannot
appear in any examination for entering
into public employment.

Counsel appearing for respondent no.
2 supported the arguments advanced by
other respondents.

Before adverting to the contentions
raised at the Bar, at the outset it is
necessary to have a glimpse on the law
with regard to scope and ambit of judicial
review of the administrative decision of
the executive. Judicial review, as the
words imply, is not an appeal from a
decision, but a review of the manner in
which the decision was made. Judicial
review is entirely different from an
ordinary appeal. There is a note of
caution for exercise of power of judicial
review
by
Lord
Scarman
in
Nottinghamshire
Country
Council
v.
Secretary of State for the Environment,
1986 A.C. 240, in the 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 action can be brought
within the purview of judicial review are
classified as under:
(i) Illegality,
(ii) Irrationality, namely
Wednesbury
Unreasonableness,
(iii) Procedural impropriety.

By
"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 to be
decided could have arrived at. (See
Associated Provincial Picture Houses Ltd.
V. Wednesbury Corpn. (1948) I KB 223).
Therefore, Judicial review is permissible
where the court finds that no authority
acting reasonably could have reached
such administrative decision. Sir William
Wade in his book Administrative Law
(Seventh Edition at page 339) sapiantly
observed that:
"the doctrine that the powers must be
exercised reasonably has to be reconciled
with no less important doctrine that the
court must not usurp the discretion of the
public
authority
which
Parliament
appointed to take the decision. Within the
bounds of legal reasonableness is the area
in which the deciding authority has
genuinely free discretion. If it passes
those bounds, it acts ultra vires. The court
must, therefore, resist the temptation to
draw the bounds too tightly, merely,
according to its own opinion if the
decision
is
within
the
confines
of
reasonableness, it is no part of the court's
function to look further into its merits."
124 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
9. The concept of reasonableness in
administrative action has been elaborately
dealt with by the Supreme Court in the
case
of
G.B.
Mahajan
v.Jalgaon
Municipal Council, AIR 1991 S.C. 1153.

10. In the celebrated judgement in
the case of Tata cellular v. U.O.I. AIR
1996 SC p. 11, the Hon'ble Supreme
Court having made reference to a catena
of
judicial
pronouncements
on
the
question of judicial interference in the
administrative
decision
observed that
since the court does not sit in appeal over
such decision but merely reviews the
manner in which it was made, the court
must exercise utmost restraint while
exercising the power of review, else it
would be guilty of usurping power.
Therefore, if the authority takes a decision
on the basis of some materials which a
reasonable person could have taken in that
case judicial review is not permissible.
On the other hand, if the decision is based
on no legitimate reasons and is actuated
by bad faith then judicial interference
would be the proper remedy to undo the
wrong.

Keeping
the
aforesaid
legal
principles in mind it is now to be judged
whether the ultimate conclusion of Sri
Gupta, Chairman of the Board to cancel
the
examination
suffers
from
unreasonableness
and
whether
the
decision taken by the Tribunal in not
putting its seal of approval thereon
requires interference of this court in
exercise of writ jurisdiction under Article
226 of the Constitution. We are
conscious of legal position about the
jurisdiction of High Court in the matter of
interference in the orders of the Tribunal.
It needs no emphasis that jurisdiction is
supervisory and not a appellate. Article
226 is not intended to enable the High
Court to convert itself into the court of
appeal and examine the correctness of the
decision of Tribunal. But on a perusal of
the order of the Tribunal if the High Court
comes to a conclusion that the Tribunal
has committed a manifest error or that on
the available material it is not possible for
a reasonable man to come to a conclusion
arrived at by the Tribunal or that the
Tribunal
has
ignored
to
take
into
consideration certain relevant materials or
has
taken
into
consideration
such
materials which is not admissible then the
High
Court
would
be
justified
in
interfering with the findings of the
Tribunal.

11. To repeat with, in the present
case Sri Gupta, Chairman of the Board in
order to ascertain whether selection
process was fair and proper picked up
answer-sheets of top four candidates and
on enquiry found.......
(i) That the signatures of invigilator
appearing in those answer-sheets to be
forged as compared to the remaining
answer - sheets since the same were
'unsure' and on hesitant lines not in
flowing manner.
(ii) That the answer-sheets were thicker,
yellowish and different from the batch,
(iii) That the stamps appearing on the
back of those booklet (answer-sheets)
were found to be different in colour, ink
and style; and
(iv) That the descriptive question no. 20
was not attended to by those four
candidates for fear of the handwriting
being identified at the time of evaluation
of the answer-sheets.

12. Tested with the principles of
'reasonableness' it cannot be said that the
ultimate
decision
of
the
Chairman
1All] Union of India through G.M., N.R. & another V. V.K.M. Tripathi & others
125
cancelling the examination on the basis of
the
findings
as
aforesaid
was
unreasonable and no prudent man could
have arrived at such decision.

13. To necked eye, he found that the
four answer sheets were quite dissimilar
to others in size, colour and the stamp/seal
appearing on the back thereof had a
different colour of ink, font and style.
Besides the signature of the Invigilator
also appeared to be forged as compared to
others. From all these what appears. Is
that the written examination conducted by
the Board was an eye-wash. The officials
entrusted with the duty of conducting the
examination betrayed the trust reposed in
them. They in order to help the
candidates for whom they were interested
for obvious reason substituted the answer
sheets in place of originals by forging the
signature of the Invigilator. In our
considered opinion examination was not
fair and above - board. This observation
of ours gains support from the other
attending circumstance, inasmuch, as, no
secrecy was maintained in the matter of
awarding marks to the candidates in the
written examination. It was expected of
the board and its officials to keep the
mark sheet of the candidates of the
written examination in sealsed cover so
long as viva voce was not concluded. No
sensible man can appreciate the manner
the records of the written examination
were handled by the officials. Sri
Tripathi, respondent No. 1 being one of
the candidates could be able to get a copy
of the mark-sheet of the written test and
place the same on record before the
Tribunal. It cannot, therefore, be denied
that the officials having control over the
confidential record parted with the copy
of the mark sheet to Sri Tripathi. In such
circumstances, court cannot be a mute
spectator
and
approve
corruption,
nepotism and favourism that prevailed in
the selection and permit the candidates
having come out successful in such
selection to enter into public service. It
need not be emphasized, competitive
examinations are required to be conducted
by the authorities concerned in strict
manner to get the best brain. Public
interest involved in such service requires
no compromise. Therefore, any violation
of it should be dealt with strong hand.

14. Corruption, favouritism and
nepotism have become order of the day.
It has affected the whole society like
AIDS. Corrupt people have taken place
of pride in the society. These people
supported by the hypocrites shamelessly
commit crime in broad day light, as a
result, the whole society is affected. In
crime graph corruption has reached such a
high proportion that unless right minded
people come forward to check it, it may
lead to social disorder. The court has vital
role to play when such matter comes to its
notice.

15. The argument advanced by the
learned counsel appearing for respondent
Nos. 2 to 5 that in view of the law laid
down in Asha Kaul (Supra) that a detail
enquiry ought to have been conducted by
the
Board
before
canceling
the
examination merits no consideration. The
decision of the Supreme Court in the
aforesaid case was rendered in altogether
different fact situation and therefore, the
same has no application to the case in
hand. In that case, some of the candidates
whose names were there in the select list
for appointment as Munsifs approached
the High Court of Jammu and Kashmir
since the Government did not approve and
publish the list. The learned Single Judge
126 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
allowed the petition directing the State
Government to approve the list, but on
appeal by the State, the Division Bench
disagreed with the learned Single Judge.
It held that the Government was not
bound to fill up the existing vacancies and
mere inclusion of names in the select list
did not confer upon the candidates any
indefeasible right to appointment. The
matter was then carried to Supreme Court.
It was contended that Government had not
disclosed the reason for not approving the
remaining names while approving the list
of 13 candidates and so its action was
arbitrary, capricious and vitiated by
admissible and extraneous consideration.
On behalf of the State, the main
contention was that a large number of
complaints
were
received
by
the
Government against the selection and
many of them were found to be not
without substance. This being the
submission of the State, their Lordships'
observed that if the Government was
satisfied after due enquiry that selection
had vitiated either on account of violation
of fundamental procedural requirement or
was
vitiated
by
consideration
of
corruption and favouritism, it can refuse
to approve the select list. But while doing
so, it was bound to record the reasons for
its action and produce the same before the
court if and when summoned. This
observation of their Lordships should not
be read in isolation. It should be read and
interpreted
in
the
context
and
circumstances it was rendered. In the
present case, it cannot be said that no
enquiry whatsoever was made by the
Chairman of the Board. As stated earlier,
he verified and scrutinised the answer
sheets of four top candidates and for the
reasons
indicated
in
the
preceding
paragraph
came
to
hold
that
the
examination was not fair and proper In
that view of the matter, the Tribunal ought
not to have interfered with and reviewed
the decision of the Chairman as if it was
exercising
the
power
of
appellate
authority.

16. In the result, both the writ
petitions are allowed. The impugned
orders passed by the Learned Tribunal in
the aforesaid two cases sitting over the
decision of the Chairman and directing
the Board to allow Sri Tripathi to appear
in viva-voce test and finally to declare the
result of the examination are quashed.
There shall be no order as to costs.