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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.5680-83  OF 2017 (Arising out of Special Leave Petition (Civil) Nos.19570-19573 OF 2016)

Gohil Vishvaraj Hanubhai & Others    …   Appellants

Versus

State of Gujarat & Others            …   Respondents

J U D G M E N T

CHELAMESWAR, J.

1. Leave granted.

2. These  appeals  are  preferred  against  the  final  judgement

dated 27 June 2016 of the High court of Gujarat in Letters Patent

Appeal No. 73 of 2016 in Special Civil Application No. 11149 of

2015  with  Letters  Patent  Appeal  No.  74  of  2016  in  Civil

Application No. 11685 of 2015 with Civil Application No.1066 of

2016 in Letters Patent Appeal No. 74 of 2016 with Special Civil

Application No 11149 of 2015. The facts leading to the instant

litigation are as follows:

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3. The  Appellants  herein  are  candidates  who  successfully

appeared in the examination conducted by the Respondents for

recruitment to the post of Revenue Talati but were not appointed.

4. The  State  of  Gujarat  decided  to  create  a  new  post  of

Revenue Talati,  under the control  of  the Revenue Department.

Revenue talatis are to maintain revenue records, collect revenue

etc. The creation of these posts is meant to ease the burden on

existing  talati-cum-mantris  who were under  the  control  of  the

Panchayat  Department,  performing  duties  relating  to

maintenance  of  land  records  and  various  duties  incidental

thereto.

5. A total of 1800 posts of Revenue Talati were created by a

Government Resolution dated 23.10.2008. Ordinarily recruitment

to  such  post  is  carried  out  by  Gujarat  Subordinate  Service

Selection Board (GSSSB). The board was requested to do so.  The

board expressed its  inability  to  undertake the  task within  the

time frame decided by the state.

6. Given the urgency of the situation, the Revenue board of the

State of Gujarat decided to undertake the recruitment process by

itself.  The proposal was approved by the State by a Resolution

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dated  4.12.2013  (for  convenience  GR-I)  of  the  General

Administration Department.  By another GR dated 11.12.2013,

the  Revenue  Talati  Recruitment  Committee  (hereafter

COMMITTEE)  was  constituted  under  the  chairmanship  of

Revenue  Inspection  Commissioner,  who  is  an  Ex-Officio

Secretary to the State of Gujarat with Collector, Ahmedabad and

Collector,  Gandhinagar  and  Joint  Secretary  of  Revenue

department  as  Members  of  the  COMMITTEE,  to  “carry  out  the

procedure of direct recruitment” and matters incidental thereto and

subject to the various limitations imposed under the said GR.

The  COMMITTEE  decided  to  avail  the  assistance  of  Gujarat

Technological  University  (hereinafter  GTU)  for  conducting  the

examination.1

7. On 15.1.2014 an advertisement for filling up of 1500 posts

of Revenue Talatis was published. Performance of the candidates

at  an  objective  type  written  examination  for  100  marks  was

stipulated to be the basis for  selection.   The examination was

conducted  in  2691  centres  spread  over  33  districts.  7,53,703

candidates appeared in the examination.  

1 The  Recruitment  Committee  has  resolved  to  hand  over  the  procedure  of  setting  question  paper,  taking examination and declaring results, thereof, to the Gujarat Technological University, and hence, for the aforesaid purpose, you are requested to send the rates chargeable for each procedure to the Department, at the earliest.    – Letter of the Member Secretary, Recruitment Committee to Registrar, GTU dated 15.1.2014

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8. A day prior  to the examination,  i.e.,  15.02.2014,  a crime

was registered in F.I.R. No.46 of 2014 in Sector-7 police station,

Gandhinagar  under  sections  406,  420  and  144  of  the  Indian

Penal Code against two persons, namely Kalyanish Mulsinh and

Nileshbhai  Umeshbhai  Shah.   The  allegation is  that  they  had

collected money from some of the candidates who were to appear

in the said examination by assuring them appointments.

9. However  the  examination  process  went  ahead.  In  the

process of evaluating the OMR sheets, it was noticed that a large

number of OMR sheets had specific markings. On 26.05.2014 the

police  authorities  informed  the  Chairman  of  the  COMMITTEE

that during interrogation of the two arrested persons, it emerged

that they had advised the candidates to put a ‘b’ mark on the

right side of the OMR sheet.  

10. Thereafter,  the entire data was sent to a forensic science

laboratory  for  further  investigation.  The  investigation  revealed

284  OMR  sheets  with  the  specific  mark.  The  COMMITTEE

decided  to  eliminate  those  candidates  from  consideration.

Therefore, a provisional merit list was declared on 10.10.2014.

8465 candidates were placed in the list.

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11. In  the  meanwhile,  complaints  were  received  by  different

authorities  of  the  State  alleging  the  commission  of  a  large

number of malpractices in connection with the examination:

- a complaint from Bhubhai Damor on 17.10.2014.

- The Collector, Sabrakantha District forwarded a

complaint  received  by  him  from Mr  R.D.  Patel

detailing various irregularities.

- Similar complaint of irregularities was addressed

to  the  Principal  Secretary,  General

Administration Department  by one Kameshbhai

from Rupakheda, District Dahod.

- Another  complaint  was  filed  in  the  local  crime

branch  of  Surendranagar  against  one  Hiren

Narottambhai  Kaoisha  alleging  that  he  had

collected an amount  of  Rs.1.55 crores from 62

candidates.

- Further  complaint  alleging  that  one  Dhirubhai

Bhil, who was working as a peon in the office of

the  Secretary,  Land  Reforms  and  one  woman

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employee  from  the  same  office  had  accepted

money from a number of candidates promising to

ensure  that  these  candidates  would  clear  the

examination.  The  Secretary,  Land  Reforms was

also  the  Chairman  of  the  Recruitment

Committee.  

12. In  view  of  receipt  of  a  large  number  of  complaints,  the

COMMITTEE probed into the matter.   Some irregularities were

noticed.  For  example,  127 candidates  belonging  to  one  family

were placed in the  provisional  merit  list.  178 candidates were

found to have given same residential addresses. Both these sets

of candidates had 47 candidates in common etc.

13. The  COMMITTEE  thought  it  fit  to  cancel  the  entire

examination process.  Accordingly, Government issued orders by

a  Resolution  dated  03.07.2015 (hereafter  GR-II)  cancelling  the

recruitment process. It was further ordered inter alia thereunder:  

“3. On  cancelling  the  entire  recruitment  procedure  for filling-up the 1500 posts of Revenue Talati class and by adding 900 vacancies from the other years, it  is,  hereby,  resolved to fill-up the total 2400 posts through Gujarat Subsidiary Service Selection Board.

4. As stated at No.1, the candidates, whose name figured in the list, whose upper age limit is about to attain, now, as they shall not be entitled to appear in the examination that shall be

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conducted now, as a special case, a relaxation of five years is given in the upper age limit.”  

14. Aggrieved by the abovementioned GR, the appellants herein

filed  a  Writ  Petition  (Special  Civil  Application  No.11149/2015)

seeking  a  declaration  that  the  GR  was  illegal  and  arbitrary.

Further the Petitioners filed an application (Civil Application No.

11685  of  2015)  seeking  to  restrain  the  Respondents  from

publishing any fresh advertisements for recruitment. The Gujarat

High Court vide an Interim Order dated 14.12.2015 disposed of

Civil Application No.11685 of 2015 allowing the Respondents to

proceed with fresh recruitment for 980 seats. The Petitioners filed

LPAs No.73 and 74 of 2016 challenging the 14.12.2015 order.

The Petitioners also filed an application seeking a stay on fresh

recruitment  being  LPA  No.74/2016.  The  Gujarat  High  Court

dismissed  all  applications  and  appeals  vide  the  impugned

judgment holding that the decision of the COMMITTEE was not

unreasonable  since  there  was  some  material  on  the  basis  of

which the decision was made,  viz.  the various allegations that

have cast a shadow over the sanctity of the recruitment process.

Hence this appeal.

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15. The  appellants  argued  (i)  that  cancellation  of  the

examination without any investigation or proof of the allegations

of a vitiated examination process is illegal; (ii) the legality of the

GR-II  must  be  tested  on  the  touchstone  of  the  principle  of

‘Wednesbury  Reasonableness’  and  the  principle  of

proportionality; (iii) Tested  in  the  light  of  the  twin  principles

mentioned  above,  the  decision  of  the  COMMITTEE  is  both

unreasonable  and  disproportionate  to  the  alleged  mischief,

unreasonable since it is based on the irrelevant consideration of

the  embarrassment  caused  to  the  government  and

disproportionate since the allegations pertain to a small number

of candidates whose candidature could have been segregated and

rejected.  

16. Two questions need to be examined:

(1) What  are  the  principles  which  govern  the jurisdiction  of  the  Courts  which  exercise  the power of judicial review of administrative action in  the  context  of  a  situation  like  the  one presented by the facts of these appeals;

(2) Whether  those  legal  principles  are  strictly followed  by  the  respondents  while  taking  the impugned decision?

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17. The  basic  principles  governing  the  judicial  review  of

administrative action are too well settled.  Two judgments which

are frequently quoted in this regard are - Associated Provincial

Picture Houses Ltd. v. Wednesbury Corporation2 and Council

of Civil Service Unions v. Minister for Civil Service3.    

18. Lord Diplock in his celebrated opinion in  Council of Civil

Service Unions summarised the principles as follows:

“… Judicial review has 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 ground 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; but to dispose of the instant case the three already well-established heads that I  have  mentioned  will  suffice.  By  “illegality”  as  a  ground for judicial  review  I  mean  that  the  decision-maker  must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute,  by  those  persons,  the  judges,  by  whom the judicial power of the state is exercisable. By “irrationality” I mean what can  by  now  be  succinctly  referred  to  as  “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd. v. Wednesbury  Corporation  [1948]  1  KB  223).  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 it. Whether a decision falls within this category is a

2  (1948) 1 KB 223 3  1984 3 All ER 935 (HL)

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question that judges by their training and experience should be well  equipped  to  answer,  or  else  there  would  be  something badly  wrong  with  our  judicial  system.  To  justify  the  court's exercise of this role, resort I think is today no longer needed to Viscount  Radcliffe's  ingenious  explanation  in  Edwards  v. Bairstow [1956] AC 14 of irrationality as a ground for a court's reversal  of  a  decision  by  ascribing  it  to  an  inferred  though unidentifiable  mistake  of  law  by  the  decision-maker. “Irrationality”  by  now  can  stand  upon  its  own  feet  as  an accepted  ground  on  which  a  decision  may  be  attacked  by judicial review. I have described the third head as “procedural impropriety”  rather  than  failure  to  observe  basic  rules  of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility  to  judicial  review  under  this  head  covers  also failure by an administrative tribunal to observe procedural rules that  are expressly  laid down in the legislative  instrument  by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not  concerned  with  the  proceedings  of  an  administrative tribunal at all.”

It  can be seen from the above extract,  Lord Diplock identified

three  heads  under  which  judicial  review  is  undertaken,  i.e.,

illegality,  irrationality  and  procedural  impropriety.  He  also

recognised the possibility of new heads such as ‘proportionality’

being identified in future.  He explained the concepts of the three

already identified heads.  He declared that the head ‘irrationality’

is synonymous with ‘Wednesbury unreasonableness’.

19. The principle laid down in Council of Civil Service Unions

has been quoted with approval by this Court in Tata Cellular v.

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Union of India4 and Siemens Public Communication v. Union

of India5.

20. Normally  while  exercising  the  power  of  judicial  review,

Courts would only examine the decision making process of the

administrative authorities but not the decision itself.  The said

principle has been repeatedly stated by this Court on number of

occasions.6   

21. We  shall  now  examine  the  questions  raised  by  the

appellants in the light of the abovementioned principles in which

judicial review of administrative action is undertaken.   

The 1st submission of the appellant is that there is no proof

of tampering with the examination process on a large scale as

asserted by the respondent, but there are only allegations of such

tampering,  the  truth  of  which  has  never  been  tested  by  any

established  process  of  law.   Therefore,  the  decision  of  the

respondent to cancel the examination in its entirety is without

any basis in law.

4 (1994) 6 SCC 651 5 AIR 2009 SC 1204 6 Chairman, All India Railway Recruitment Board Vs. K Shyam Kumar, ( 2010) 6 SCC 614 at para 21; Sterling Computers Ltd. v. M.N. Publications Ltd., (1993) 1 SCC 445; State of A.P. v. P.V. Hanumantha Rao, (2003) 10 SCC 121

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22. Purity  of  the  examination  process  -  whether  such

examination  process  pertains  to  assessment  of  the  academic

accomplishment  or  suitability  of  candidates  for  employment

under  the  State  -  is  an  unquestionable  requirement  of  the

rationality  of  any  examination  process.   Rationality  is  an

indispensable  aspect  of  public  administration  under  our

Constitution7.   The  authority  of  the  State  to  take  appropriate

measures to maintain the purity of any examination process is

unquestionable.  It is too well settled a principle of law in light of

the various earlier decisions of this Court that where there are

allegations of the occurrence of large scale malpractices in the

course of the conduct of any examination process, the State or its

instrumentalities  are  entitled  to  cancel  the  examination.8 This 7 Ramana Dayaram Shetty v. International Airport Authority of India & Others, (1979) 3 SCC 489 8 Nidhi Kaim v. State of  Madhya Pradesh & Others,  (2016) 7 SCC 615 at  para  23:  “Even otherwise,  the argument  of  the  appellants  is  required  to  be  rejected  for  the  following reasons:  Under  the  scheme of  our Constitution, the executive power of the State is co-extensive with its legislative power. In the absence of any operative legislation, the executive power could certainly be exercised to protect the public interest. The right of each one of the appellants herein for admission to the medical colleges in the State of Madhya Pradesh is itself an emanation of the State’s executive action. No doubt, even executive action of the State can create rights. Unless there is something either in the Constitution or law which prohibits the abrogation or abridgment of rights, it is permissible for the State to do so by executive action in accordance with some specified procedure of law. No doubt,  that  the  overarching  requirement  of  Constitution is  that  every  action of  the  State  must  be informed with reason and must be in public interest. Nothing has been brought to our notice which prohibits the impugned executive action. If it is established that the adoption of unfair means on large scale resulted in the contamination of the entrance examination (PMT) process of successive years, the State undoubtedly would have the power to take appropriate action to protect the public interest. I, therefore, reject the submission of the appellants.”;

In the case of Union of India v. Anand Kumar Pandey, 1994 5 SCC 663 large scale cheating occurred in  the  Railway Recruitment  Board  Examination,  specifically  in  two rooms of  a  center.  The  Board  took a decision to subject the successful candidates from that center to a re-examination. This was set aside by the Central Administrative Tribunal on the ground that such a decision was taken in violation of the principles of natural justice. It was held that there cannot be any straight-jacket formula for the application of the principles of natural justice. This Court did not find any fault with the decision to conduct a fresh examination.;

In the case of  Chairman All India Railway Recruitment Board & Another  v. K. Shyam Kumar & Others, 2010 6 SCC 614, large-scale malpractices surfaced in the written test. The recruitment board ordered a

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Court  has  on numerous  occasions  approved the  action of  the

State  or  its  instrumentalities  to  cancel  examinations whenever

such action is  believed  to  be  necessary  on the  basis  of  some

reasonable material to indicate that the examination process is

vitiated. They are also not obliged to seek proof of each and every

fact which vitiated the examination process.9  

23. Coming to the case on hand, there were allegations of large

scale tampering with the examination process.  Scrutiny of the

answer sheets (OMR) revealed that there were glaring aberrations

which provide prima facie proof of the occurrence of a large scale

tampering of the examination process.   Denying power to the

State  from  taking  appropriate  remedial  actions  in  such

circumstances on the ground that the State did not establish the

truth of those allegations in accordance with the rules of evidence

relevant  for  the  proof  of  facts  in  a  Court  of  law  (either  in  a

criminal or a civil proceeding), would neither be consistent with

the demands of larger public interest nor would be conducive to

the efficiency of administration.   No binding precedent is brought

retest, which was challenged in the Central Administrative Tribunal. The tribunal held that a retest was valid. High Court reversed invoking the wednesbury’s principles of reasonableness. This Court held that in the face of such large scale allegations supported by reports of the vigilance department and the CBI, the High Court was wrong in reversing the tribunal’s decision. 9  Nidhi Kaim v. State of Madhya Pradesh & Others, (2016) 7 SCC 615 see para 42.1 and 42.2 at 649

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to our notice which compels us to hold otherwise. Therefore, the

1st submission is rejected.

24. The next question is whether the impugned decision could

be sustained judged in the light of the principles of ‘Wednesbury

unreasonableness’. In the language of Lord Diplock, the principle

is that “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 it”.  Having regard to

the nature of the allegations and the prima facie proof indicating

the  possibility  of  occurrence  of  large scale  tampering with the

examination process which led to the impugned action, it cannot

be  said  that  the  impugned  action  of  the  respondent  is  “so

outrageous  in  its  defiance  of  logic”  or  “moral  standards”.

Therefore, the 2nd submission of the appellant is also required to

be rejected.

25. We are left with the 3rd question – whether the magnitude of

the impugned action is so disproportionate to the mischief sought

to be addressed by the respondents that the cancellation of the

entire examination process affecting lakhs of candidates cannot

be justified on the basis of doctrine of proportionality.   

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26. The doctrine of proportionality, its origin and its application

both in the context of legislative and administrative action was

considered in some detail by this Court in Om Kumar & Others

v. Union of India, (2001) 2 SCC 386.   

This Court drew a distinction between administrative action

which affects fundamental freedoms10 under Articles 19(1) and 21

and administrative action which is violative of Article 14 of the

Constitution of India.    This Court held that in the context of the

violation of fundamental freedoms;

“54. ….. the proportionality of administrative action affecting the  freedoms  under  Article  19(1)  or  Article  21  has  been tested by the courts as a primary reviewing authority and not on the basis of Wednesbury principles.   It may be that the courts did not call this proportionality but it really was.

This  Court,  thereafter  took  note  of  the  fact  that  the  Supreme

Court of Israel recognised proportionality as a separate ground in

administrative law to be different from unreasonableness.

27. It is nobody’s case before us that the impugned action is

violative of any of the fundamental freedoms of the appellants.

We  are  called  upon  to  examine  the  proportionality  of  the

administrative action only on the ground of violation of Article 14.

10 See paras 52 to 54

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It is therefore necessary to examine the principles laid down by

this Court in this regard.   

This Court posed the question in Omkar’s Case;

61.    When  does  the  court  apply,  under  Article  14,  the proportionality test as a primary reviewing authority and when does  the  court  apply  the  Wednesbury  rule  as  a  secondary reviewing authority?  From the earlier review of basic principles, the answer becomes simple.  In fact, we have further guidance in this behalf.

and concluded;

“66. It is clear from the above discussion that in India where administrative  action is challenged under Article 14 as being discriminatory,  equals  are treated unequally  or  unequals  are treated  equally,  the  question  is  for  the  Constitutional Courts  as primary  reviewing  courts to  consider correctness of the level of discrimination applied and whether  it is excessive and whether it has a nexus with the objective intended to be achieved by the administrator.  Here the court deals with the merits of the balancing  action  of  the  administrator  and  is,  in  essence, applying “proportionality” and is a primary reviewing authority.

67. But  where  an  administrative  action  is  challenged  as “arbitrary”  under  Article  14  on the  basis  of  E.P.  Royappa  v. State of T.N.,  (1974) 4 SCC 3, (as in cases where punishments in  disciplinary  cases  are  challenged),  the  question  will  be whether the administrative order is “rational” or  “reasonable” and the test then is the Wednesbury test.  The courts would then be confined only to a secondary role and will only  have  to  see  whether  the  administrator  has done well in his primary role, whether he has acted illegally  or  has  omitted  relevant  factors  from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken.  If his action does not satisfy these rules, it is to be treated as arbitrary.  In G.B. Mahajan  v.  Jalgaon  Municipal  Council,  (1991)  3  SCC  91, Venkatachaliah,  J.  (as  he  then  was)  pointed  out  that “reasonableness” of the administrator under Article 14 in the

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context of administrative law has to be judged from the stand point of  Wednesbury  rules.  In  Tata Cellular v. Union of India, (1994) 6 SCC 651, Indian Express Newspapers Bombay (P) Ltd. v. Union of India, (1985) 1 SCC 641, Supreme Court Employees’ Welfare Assn.  v.  Union of  India,  (1989)  4 SCC 187, and U.P. Financial Corpn. V. Gem Cap (India) (P) Ltd., (1993) 2 SCC 299, while judging whether the administrative action is “arbitrary” under Article 14 (i.e. otherwise then being discriminatory), this Court has confined itself to a Wednesbury review always.

68. Thus,  when  administrative  action  is  attacked  as discriminatory under Article 14, the principle of primary review is for the courts by applying proportionality.  However, where administrative action is questioned as “arbitrary” under Article 14,  the  principle  of  secondary  review  based  on  Wednesbury principles applies.”  

28. The submission by the appellants is that the mere fact that

some of the candidates resorted to some malpractice cannot lead

to the conclusion that the entire examination process is required

to  be  cancelled  as  it  would  cause  undue  hardship  to  huge

number of innocent candidates.   In other words, the appellants

urge this Court to apply the primary review test.

29. We  have  already  held  that  there  were  large  scale

malpractices  at  the  examination  process  and  the  State  was

entitled to take appropriate remedial action.  In the context of the

occurrence  of  such  malpractice  obviously  there  can  be  two

classes of candidates: those who had resorted to malpractice and

others who did not.   By the impugned action, no doubt, all of

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them were treated alike.  Whether such herding together would

amount to the denial of the equal protection guaranteed under

Article 14? is the question.  

Identifying all the candidates who are guilty of malpractice

either  by  criminal  prosecution  or  even  by  an  administrative

enquiry is certainly a time consuming process.  If it were to be

the requirement of law that such identification of the wrong doers

is a must and only the identified wrongdoers be eliminated from

the selection process, and until such identification is completed

the process cannot be carried on, it would not only result in a

great inconvenience to the administration,  but also result in a

loss of time even to the innocent candidates.  On the other hand,

by virtue of  the impugned action, the innocent candidates (for

that matter all the candidates including the wrong doers) still get

an opportunity of participating in the fresh examination process

to be conducted by the State.  The only legal disadvantage if at all

is that some of them might have crossed the upper age limit for

appearing in the fresh recruitment process.   That aspect of the

matter is taken care of by the State.  Therefore, it cannot be said

that the impugned action is vitiated by lack of nexus with the

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object  sought  to  be  achieved  by  the  State,  by  herding  all  the

candidates at the examination together.

30. We  see  no  reason  to  interfere  with  the  judgment  under

appeal.   The appeals are, therefore, dismissed, with no order as

to costs.

….………………………….J.                                                    (J. Chelameswar)

…….……………………….J.      (Abhay Manohar Sapre)

New Delhi; April 28, 2017   

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