THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION Nos. 20420 of 2010, 28738 of 2010 and 33695 of 2010 COMMON ORDER: 1. These Writ Petitions are fled challenging the action of the first respondent in fax message No.X/P.529/3/XII, dated 21.06.2010 cancelling the Notification dated 13.11.2009 and 25.11.2009 for promotion of the petitioners to the rank of Assistant Sub Inspector, Protection Force under Rule 72 and the consequential Notification No.X/P.529/3/XIII, dated 23.07.2010 proposing to hold selection for promotion to the post of Assistant Sub Inspectors under Rule 72 of the Railway Protection Force Rules, 1987 and consequently set aside the fax message dated 21.06.2010 and Notification dated 23.07.2010 of the first respondent. 2. The brief fats are that the petitioners are working as Constables/Head Constables in the Railway Protection Force (RPF). The first respondent issued a Notification dated 13.11.2009, proposing to hold selection of Head Constables/Constables for promotion to the rank of Assistant Sub Inspector, Protection Force (ASIPF) in executive branch under Rules 70 and 72 of the RPF Rules, 1987. By way of intimation dated 25.11.2009, number of vacancies for promotion under Rule 70 is shown as 27 and under Rule 72 is shown as 19. The test consists of written test carrying 40 marks, outdoor test carrying 20 marks, viva-voce carrying 20 marks and record of service carrying 20 marks. About 128 candidates, including the petitioners, appeared for both indoor and outdoor tests, and out of them, 49 candidates were qualified and they were called for viva-voce test. Thereafter, 19 candidates, including the petitioners, were declared qualified. Subsequently, the first respondent issued the impugned fax message dated 21.06.2010 cancelling the selection. 3. It is the case of the petitioners that no notice or opportunity was given to the candidates who are declared fit for promotion to ASIPF post; that the selection held as per Rule 72 of the Rules was deliberately cancelled on the allegation that Sri B.Yella Rao, Steno to Sr.DSC/SC had very long telephonic conversation on 17.01.2010 with some of the candidates; that it would be impracticable and impossible to have an alleged telephonic conversation with the 49 selected candidates in the written examination and even with the candidates selected for promotion, and therefore the alleged reason is mala fide act; that, without completing the investigation of alleged malpractices in written examination through said B.Yella Rao, cancelling the selection process is illegal; that the persons who had conversation on that day with said B.Yella Rao used to call him frequently and the alleged apprehension is incorrect; that if any malpractices occurred, the first respondent has to cancel the entire Notification but not the selection made under Rule 72 of the RPF Rules; that, the bunch of question papers containing a sealed bundle is opened in the presence of Invigilators/Committee Members and so there is no scope for indulging malpractice in the selection process; that the promotions given under Rule 70 have not been disturbed, and therefore, though a common notification was given, cancelling the selection under Rule 72 alone is mala fide and deliberate act of the respondents; that it is not stated in the impugned order about the alleged irregularities or illegalities, and therefore, in the absence of prior notice or opportunity to the empanelled candidates and without any reason and without completion of investigation, the action of first respondent is contrary to the principles of natural justice; that under Rule 9(j) of the Standing Order No.87, entrusting job of preparation of question paper or preparation of model answer to subordinates by the Chairperson is not allowed; that the selected candidates participated in all four stages of selection process and established their merit and ability in the selection process; that issuance of Notification dated 23.07.2010 by the first respondent proposing to hold fresh selection for promotion to the post of ASIPF under Rule 72 of the Rules, including the vacancies which are notified earlier, is illegal. Hence, the writ petitions. 4. The third respondent filed counter affidavit on behalf of the respondents denying the averments made in the writ affidavit except which are specifically admitted and stating that the writ petitions are not maintainable as no constitutional or statutory rights of the petitioners are violated. The third respondent admitted issuance of the Notifications dated 13.11.2009 and 25.11.2009 for promotion of Constables/Head Constables to the rank of Assistant Sub Inspectors under Rules 70 and 72 of the RPF Rules, 1987, and the vacancy position, the holding of written examination, cancellation of the examination and issuance of Notification dated 23.07.2010 for selection to the rank of Assistant Sub Inspector under Rule 72 of the RPF Rules, 1987. It is further stated that DAR, SPE and Vigilance clearance in respect of the qualified staff under Rules 70 and 72 were called for, but, however in view of letter dated 09.02.2010 received from the Deputy Chief Vigilance Officer, Secunderabad, issuance of panel under Rule 72 of the Rules was kept in abeyance until further advice from the Vigilance Department, and subsequently, on receipt of confidential letter dated 17.06.2010 of the Senior Deputy General Manager, Secunderabad, the notification was cancelled vide the impugned fax message; that, the impugned proceedings were issued basing on the proceedings dated 17.906.2010 of the Senior Deputy General Manager, Secunderabad, wherein it is stated that preliminary investigation discloses that there is sufficient preponderance to conclude that the question was leaked before the date of examination; that, if it is subsequently found that there were procedural irregularities or other defects, which may necessitate amending or canceling the panel, then this should be done after obtaining the approval of the authority that is higher in rank to the one that approved it. It is further stated that after completion of selection process, the Chairman of the committee submitted proceedings duly recommending names of 19 candidates for empanelment and promotion to the rank of Assistant Sub Inspector under Rule 72 of the RPF Rules, 1987, but no final list of empanelled candidates was issued, and therefore, the contention that cancellation of empanelled list is not correct since no such list was issued and circulated by the first respondent; that, having got the information that the questions came to the knowledge of some of the candidates in advance and those candidates were eventually got selected, a sample test was conducted on two of the selected candidates who had secured very high marks in the test in which one of the candidates performed very poor; that, one of the candidates while writing the answer in written examination on 18.01.2010, had produced the examples in verbatim figuring in the answer key; that due to these serious irregularities affecting large class of employees, and therefore, cancellation of the examination cannot be said to be arbitrary or illegal; that, the Vigilance Department advised the Administration to transfer some of the officials involved from their present place of posting to some other place so that uninterrupted investigation can be carried out without providing any chance to influence the witnesses. Hence, it is prayed to dismiss the Writ Petitions. 5. This Court, by order dated 20.12.2010, directed the Director General of Railway Protection Force, to cause investigation into the entire matter pertaining to conducting of written test for selection and appointment of Assistant Sub Inspectors in South Central Railway held in January, 2010. In pursuance of the said direction, the Chief Security Commissioner/RPF/ICF filed a detailed report along with statements and enclosures in a sealed cover. 6. The main reason for cancellation of the selection process by virtue of Notification dated 13.11.2009 and 25.11.2009 was leakage of question and answer sheets to some of the candidates as it is not a fair and transparent examination conducted by the competent authority. 7. The learned senior counsel Sri D.Prakash Reddy appearing for the petitioners vehemently contended that as per the Standing Order No.87, concerned authority has no power to dictate the question paper and answers to his subordinate viz. Personal Assistant and the concerned authority itself has to prepare the question papers and answers; that the candidates, against whom the leakage of paper is attributed, have also secured good marks in viva voce and practical; that, without assigning any reasons, the selection process has been arbitrarily cancelled; that the sample test conducted by the concerned authority does not reflect the marks secured by one of the candidates who topped the list and therefore, he prays to allow the Writ Petitions. 8. On the other hand, the learned senior counsel Sri S.R.Ashok appearing for the respondents contended that because, during the course of enquiry, it came to light that there was a prima facie evidence of leakage of paper, the concerned authority rightly cancelled the selection process and re-notified the posts, and if really, the petitioners wanted to participate in the second selection process, nothing prevented them to participate in the process, but they have not participated in it, and in the absence of any arbitrary action on the part of the Railways, the question of canceling the Notification dated 13.11.2009 and 25.11.2009 does not arise, and hence, he prays dismiss the writ petitions. 9. There cannot be any dispute that in pursuance of the Notification, several eligible in-service candidates applied for the posts of Assistant Sub Inspectors. For that, a written examination along with theory and viva voce were conducted. As per the merit, first selection list is prepared by the respondents. As some rumors spread about the leakage of the paper, the concerned authority conducted a preliminary enquiry which suggested that there was a prima facie leakage of question paper in the written examination. 10. The process of selection is the most crucial and important part of recruitment exercise and involves a number of functional stages. In its true sense, the process begins when the stage of evaluation of the merit of the candidates is reached. The selection process in pursuance of the notifications dated 13.11.2009 and 25.11.2009 have been cancelled. It is well settled that exercise of administrative power will stand vitiated if there is manifest error of record or the exercise of power is arbitrary. If the power has not been exercised in accordance with law, but exercised according to one’s pleasure or will, it can be said to be arbitrary. There is no obligation on the part of the first respondent to complete the selection process and before such completion, the first respondent is entitled to review the matter and stop the selection process. But, it should not be arbitrary. 11. There cannot be any dispute that the selection process must be transparent, fair and reasonable. No doubt, as per the Rules contemplated, the first respondent has to prepare the questions and answers by himself. But, admittedly, the first respondent dictated the questions and answers to his Personal Assistant, and the same were incorporated in a Pendrive and after recording the same, the Pendrive was given to the first respondent. Thereafter, necessary print outs taken out with regard to the question papers and they were kept in a cover and later sealed. So, from the counter affidavit filed, it is clear that the concerned authority has dictated the questions in the first instance, to his Personal Assistant by name B.Yella Rao, who fed them into computer and took out print outs and put them in sealed covers. From this exercise, it can be safely stated that the said B.Yella Rao must be knowing about all the questions that were dictated by the concerned authority. No doubt, the first respondent has not followed the relevant Rule in letter and spirit. If the first respondent is not conversant with typewriting, feeding with questions into computer and taking out prints, then necessarily, he has to depend on his Personal Assistant. On this ground, it cannot be said that there is a serious lapse on the part of the first respondent. As per the Notification, the Chairperson of the Departmental Promotion Committee shall set the question paper. In the facts of the case, dictation of questions to the Personal Assistant of the first respondent can be said to be an irregularity. But, at the same time, it cannot be said to be a ground to doubt the credentials of the first respondent. For that reason, the entire selection process cannot be doubted. At this stage, if a prima facie material comes to the knowledge of the authority about the leakage of the question papers, then under no stretch of imagination, it can be said that it is a fair examination. 12. In pursuance of the directions given by this Court, the Chief Security Commissioner, RPF, ICF recorded statement of B.Yella Rao and the Railway Administration and obtained necessary call information particulars from the competent authority which clearly reveal that after sealing of question papers and handing over the same to the concerned officer, the said B.Yella Rao was contacted by four persons viz. T.Vijaya Babu, M.Raghu Babu, S.Venkateswara Rao and T.V.Babu Rao. They have spoken to the Personal Assistant, who took the dictation of the questions, transcribed the same and took print outs on the afternoon and night of 17.01.2010. None of the petitioners is stated to be Station House Officers for a particular Station so as to contact the Personal Assistant of the first respondent. There is absolutely no need or necessity for the petitioners to contact said B.Yella Rao. Even in case of emergency, the petitioners ought to have contacted their superior officers. Therefore, even though the said Yella Rao stated that due to the nature of work, he was being contacted by those persons now and then on official work, at the same time, there is no other reason for these four persons who contacted Yella Rao on 17.01.2010 which happened to be a holiday. So, making several calls by these four persons consistently to Yella Rao would give raise to a suspicion that there is a possibility of leakage of question papers atleast to the four candidates though not to all the candidates. Even if the question paper is leaked to one candidate, it cannot be said to be a proper conduct of examination. In this case, prima facie, from the record, it is clear that there is a probability that the four candidates must have received the information about the questions before examination from said Yella Rao. If the selection process is vitiated by reason of adoption of unfair means in the written examination, the authority would be within its rights to refuse to make appointments on the basis of such written examination and direct the candidates concerned to take a fresh written examination. 13. The learned counsel for the respondent placed strong reliance on the decision reported in The Bihar School Examination Board v. Subhas Chandra Sinha & others[1], wherein it is held thus: (para 13). “This is not a case of any particular individual who is being charged with adoption of unfair means but of the conduct of all the examinees or at least a vast majority of them at a particular centre. If it is not a question of charging any one individually with unfair means but to condemn the examination as ineffective for the purpose it was held. Must the Board give an opportunity to all the candidates to represent their cases ? We think not. It was not necessary for the Board to give an opportunity to the candidates if the examinations as a whole were being cancelled. The Board had not charged any one with unfair means so that he could claim to defend himself. The examination was vitiated by adoption of unfair means on a mass scale. In these circumstances it would be wrong to insist that the Board must hold a detailed inquiry into the matter and examine each individual case to satisfy itself which of the candidates had not adopted unfair means. The examination as a whole had to go.” Similarly, in Chairman, All India Railway Recruitment Board & another v. K.Shyam Kumar & others[2], it is held thus: “We will first examine whether the High Court was justified in directing the Board to go ahead with the recruitment process based on the first written test in the wake of the report of the Vigilance and the materials collected by the CBI subsequently. Report of the Vigilance has prima facie established that the allegations of leakage of question papers, large scale impersonation of candidates, mass copying etc. was true. Possibility of the involvement of the staff of Railways and outsiders was also not ruled out by the Vigilance. In such circumstances, we fail to see how the High Court has concluded that there is no illegality in going ahead with the recruitment process on the basis of the first written test.” From the above decisions, it is clear that there is no need for the Railway Administration to give opportunity to the candidates before canceling the examination, at the same time, the action of the Railway Administration must be fair and not arbitrary. As seen from the report, it is also clear that before records were finalized and submitted to the South Central Railway, rumours of leakage of question papers were started and therefore the Railway Administration collected all the papers. So, as on the date of cancellation of the process, there is prima facie material available with the Railway Administration to show that they are justified in canceling the selection process. 14. The contention of the petitioners is that the cancellation of selection process is invented to suit for their unselected candidates and it is a clear mala fide act of the respondents and after preparation of the list, cancellation is motivated, illegal and against law. Illegality can only mean an incurable irregularity; incurable because of prejudice leading to a failure of justice. In short, the administrative bodies are required to act within the bounds of the powers they have been given. It is not in dispute before this Court that the respondents have no power of whatsoever to cancel the selection process even after preparation of the selection list of candidates eligible for promotion. A decision may always be invalidated if actual bias on the part of the decision maker is proved. A mere general statement of bias is not sufficient. It is difficult to prove the state of mind of a person. Therefore, it has to be seen whether there is reasonable ground for believing that he is likely to have biased. There is absolutely no factual foundation in the Writ Petition that cancellation of selection process is arbitrary, bias or illegal. 15. Further, in pursuance of the directions given by this Court, report filed by Director General of Railway Protection Force would clearly go to show that there is prima facie material to infer that there was a leakage of papers atleast to four candidates. Therefore, in such circumstances, it cannot be said to be a fair conduct of examination by the Railway Administration and that is the reason why the Railway Administration rightly cancelled the examination and re-notified the same. Admittedly, the petitioners have not participated in the second selection process in writing the written examination. If really the petitioners were unaware of the questions before the written examination held in pursuance of the first Notifications, nothing prevented them from appearing in the second written examination and showing their intelligence and brilliance. The non-participation gives raise to a suspicion that their attitude and behaviour, which are not aboveboard. In view of the fact that these four persons secured more marks in the written examination and they are out of Top ten of the selection list, there is every possibility for them to know the questions from the said Yella Rao. For the aforesaid reasons, the action of the first respondent cannot be said to be illegal or arbitrary. 16. The Writ Petitions are devoid of merit and are, accordingly, dismissed. No costs. --------------------- (K.C.Bhanu, J.) 18.04.2011 DRK THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION Nos. 20420 of 2010, 28738 of 2010 and 33695 of 2010 18.04.2011 [1] 1970 (1) Supreme Court Cases 648 [2] (2010) 6 Supreme Court Cases 614