Judgment :- 1. The Kerala Public Service Commission (the "Commission)" is the appellant. By a common judgment in O. P. Nos. 8652 of 1984 and 10575 of 1984, the learned judge held that the reasons stated by the Commision for the cancellation of the ranked list dated 5-3-1983 by publication of a subsequent ranked list dated 7-6-1985 was not 'correct'. The learned judge directed the Commission to treat the earlier ranked list as valid until the completion of three years from the date of its publication, namely, 5-3-1983. 2. The petitioners in the two Original Petitions (the contesting respondents) were persons who had been placed on the first ranked list, but who could not be appointed to the existing vacancies as their ranks were relatively low. On 7-6-1985, the second list was published pursuant to a notification of the Commission dated 3-5-1983. With the publication of the second list, the original list stood cancelled. This is because R.13 of the Kerala Public Service Commission Rules of Procedure provides to that effect. 3. One of the principal contentions of the petitioners before the learned judge was that the Commission acted arbitrarily when it issued a notification on 3-5-1983 calling for fresh applications within two months after the publication of the first ranked list. It was contended that, in view of that notification, fresh applications were received by the Commission at a time when persons already placed on the earlier list were on the point of becoming overaged for the purpose of making fresh applications as per the second notification. The petitioners pointed out that until the persons on the existing list were fully absorbed, it would be totally irrational to call for fresh applications by means of the subsequent notification. 4. It was also contended that R.13 in terms of which the notification and the list were published was arbitrary and unreasonable, and therefore invalid. This contention was considered and rejected by the learned Judge. He upheld the validity of the Rule. That contention is no longer available to the present contesting respondents, for they have not challenged that finding. Their counsel Shri. Joseph fairly admits that the validity of R.13 is no longer in doubt, 5.
This contention was considered and rejected by the learned Judge. He upheld the validity of the Rule. That contention is no longer available to the present contesting respondents, for they have not challenged that finding. Their counsel Shri. Joseph fairly admits that the validity of R.13 is no longer in doubt, 5. The learned judge, however, held that the reasons stated for the publication of the second list on 7-6-1985 pursuant to the notification of 3-5-1983 were not "correct" in so far as it was unnecessary to publish the same on the ground relied on by the Commission. The contention of the Commission before the learned judge was that, in view of the fact that a number of persons who had not been placed in the first ranked list were on the point of crossing the maximum age to apply for the post, it was thought necessary and reasonable that a notification followed by a fresh list should be published before they became overaged. The learned judge held that that purpose could be equally well served by a mere notification calling for applications, but a new list pursuant to the notification was uncalled for to subserve that purpose. The learned judge, therefore, found that while it was open to the Commission to issue a notification calling for fresh applications and entertain the applications received in response to it, those applications ought to be kept in cold storage until the expiry of three years during which R.13 permitted the existing list to operate. 6. The respondents' counsel Shri. Joseph admits that R.13 is perfectly valid, but, according to him, publication of the list, although in terms of the Rule, is arbitrary in so far as persons on the cancelled list, who have crossed the age limit, are denied an opportunity to be considered for appointment. The appellant's counsel, Shri. T. P. Kelu Nambiar, contends that there is no whisper in the Original Petitions to the effect that the publication of the second list was as such arbitrary, unreasonable or irrational. The only contention was that the notification calling for applications was arbitrary. It was with reference to that contention that an affidavit was filed on behalf of the Commission stating the object of the notifications, namely, to enable persons not included in the existing list to apply for the posts before they became overaged.
The only contention was that the notification calling for applications was arbitrary. It was with reference to that contention that an affidavit was filed on behalf of the Commission stating the object of the notifications, namely, to enable persons not included in the existing list to apply for the posts before they became overaged. The age limit is reckoned with reference to the date of notification, and so the second notification afforded an opportunity to those persons to make their applications in time. Shri. Nambiar further submits that in proceedings under Art.226 of the Constitution, the learned judge having upheld the validity of the Rule was wrong in interfering with an action taken under that Rule without a finding that the action was itself unreasonable or arbitrary or irrational. All that the learned judge stated was that the reasons mentioned by the Commission for the publication of the second list were not "correct". Shri. Nambiar points out that being incorrect is not a ground for interference in writ proceedings. Counsel submits that the averments in the counter affidavit filed on behalf of the Commission show that action was taken by the publication of fresh notification and fresh list pursuant to a policy decision adopted by the Commission, namely, to bring out a second list so as to afford the maximum opportunity to the largest number of persons outside the original list. Whether the policy is right or wrong is not a matter for consideration in this proceeding. May be, counsel says, the purpose for which the policy was adopted could perhaps have been better served by a still better policy. But that is again a matter for decision by the Commission and not for judicial review. 8. Art.320 of the Constitution speaks of the functions of the Public Service Commissions: "It shall be the duty of the Union and the State Public Service Commissions to conduct examinations for appointments to the services of the Union and the services of the State respectively. 2 It It is for the purpose of discharging that constitutional function that the Commission made Rules.
2 It It is for the purpose of discharging that constitutional function that the Commission made Rules. R.13 of the Kerala Public Service Commission Rules of Procedure reads: "The ranked lists published by the Commission shall remain in force for a period of one year from the date on which it was brought into force provided that the said list will continue to be in force till the publication of a new list after the expiry of the minimum period of one year or till the expiry of three years whichever is earlier: Provided Provided further that the Commission may take steps for the preparation of a new ranked list wherever necessary even before the expiry of the period of one year of the ranked list, by inviting application but that the ranked list prepared in pursuance of the said notification shall be brought into force only after the expiry of the period of one year of the existing ranked list." that purpose could be equally well served by a mere notification calling for applications, but a new list pursuant to the notification was uncalled for to subserve that purpose. The learned judge, therefore, found that while it was open to the Commission to issue a notification calling for fresh applications and entertain the applications received in response to it, those applications ought to be kept in cold storage until the expiry of three years during which R.13 permitted the existing list to operate. 9. The operation of a ranked list is for a period of one year from the date on which it was brought into force, namely, the date of publication. The list will, however, continue to operate until a fresh list is published after the expiry of the initial period of one year or until the expiry of three years from the date of publication of the original fist whichever occurs earlier. It is well within the power of the Commission to bring out the second list immediately on expiry of the initial period of one year or at any time during the following two years. The date of publication of the second list is a matter entirely within the discretion of the Commission, provided the initial period of one year has expired.
The date of publication of the second list is a matter entirely within the discretion of the Commission, provided the initial period of one year has expired. The validity of the first list thus lasts till the publication of the second list or till the expiry of three years whichever is earlier. All this is subject to the second proviso which says that it is open to the Commission to take steps for the preparation of a new list even during the initial period of one year. It is therefore open to the Commission to prepare a new list, and for that purpose issue a notification calling for applications, at any stage of the relevant period of three years. The only condition is that the list so prepared shall not see the light of day until the initial period of one year has expired. When that list is published, the earlier list ceases to operate. This construction of the Article is not seriously disputed at the bar. The learned judge in fact accepted this construction. 10. However, it has been held that, despite the constitutional grant of power and the relevant provisions of the Rules by which the exercise of that power has been regulated by the Commission, it was not "correct" on its part to have published the second list before the expiry of the three years as a result of which persons on the first list lost their chance of being considered for appointment. The learned judge, however, categorically stated that there was no bar against the publication of the notification calling for applications or the preparation of the second list, provided the list itself was not published. 11. So long as the validity of the Rule is not in question, and so long as it cannot be justifiably said that the action taken by the Commission is contrary to the Rule, or, is so irrational, unreasonable and arbitrary that no reasonable person in the position of the Commission would have so acted, the action of the Commission is not liable to be judicially reviewed on the mere ground that the reasons stated in justification thereof were not "correct".
As stated by this Court in Ravi Industries & Saw Mills v. State of Kerala, 1983 K.L.T. 560, 561 judicial review of administrative action is generally confined to questions such as: "whether or not the decision was reasonably based on evidence, whether irrelevant matters had been taken into account or whether all relevant matters had been considered or whether there was violation of rules of natural justice or whether the relevant provisions of law had been ignored or misapplied, or whether the decision is so manifestly unreasonable that no reasonable authority entrusted with the power in question, could reasonably have made such a decision," 12. Judicial review is intended to protect the individual against abuse of power by a wide range of authorities. "It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the courts as the bodies making the decisions The function of the court is to see that lawful authority is not abused by unfair treatment and not to attempt itself the task entrusted to that authority by the law.": per Lord Hailsham L.C. Chief Constable v. Evans, (1982) 3 All ER 141,143. 13. Judicial review is concerned not with the decision as such, but with the decision-making process. It is not an appeal from a decision and the court is, therefore, not concerned with the merits of the decision, but with the manner in which it was made. The court merely quashes the decision. It does not, however, substitute its own decision on the merits for that of the authority. As stated by Lord Fraser " Judicial review is entirely different from an ordinary appeal. It is made effective by the court's quashing an administrative decision without substituting its own decision, and is to be contrasted with an appeal, where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer": Amin v. Entry Clearance Officer, (1983) 2 All ER 864, 868. 14. Lord Evershed observed in Ridge v. Baldwin, (1963) 2 All ER 66, 91 " it is not the decision as such which is liable to review; it is only the circumstances in which the decision was reached " Though this observation is contained in a dissenting judgment, the dissent was not concerned with this point.
14. Lord Evershed observed in Ridge v. Baldwin, (1963) 2 All ER 66, 91 " it is not the decision as such which is liable to review; it is only the circumstances in which the decision was reached " Though this observation is contained in a dissenting judgment, the dissent was not concerned with this point. This observation received the approval of the House of Lords in Chief Constable v. Evans, (1982) 3 All ER 141, 154. Referring to it Lord Brightman stated: "Judicial review is concerned, not with the decision, but with the decision making process. Unless that restriction on the power of the court is observed, the court will, in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power. ......................................................................................................................................................................... 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" (Evans supra 154, 155) 15. Except in cases of abuse of power, the court does not, in judicial review, concern itself with the manner in which the statutory authority exercised its "managerial discretion" based on policy consideration. The court is not concerned with the correctness or the wisdom of the policy or the exercise of management powers. Management exercise is not the object of judicial review: see Regina v. Inland Revenue Commissioner, Exparte National Federation of Self-employed and Small Business Ltd., (1982) A. C. 617, 632, 635. The correctness of the reasons which prompted the decision-maker taking one course of action instead of another is not a matter of concern in judicial review. The court is not the right forum for such investigation. As stated by Lord Diplock in C.C.S.U. v. Minister for Civil Services, (1984) 3 W.L.R. 1174,1197: "The reasons for the decision-maker taking one course rather than another dt) not normally involve questions to which, if disputed, the judicial process is adapted to provide the right answer, by which I mean that the kind of evidence that is admissible under judicial procedures and the way in which it has to be adduced tend to exclude from the attention of the court competing policy considerations which, if the executive, discretion is to be wisely exercised, need to be weighed against one another a balancing exercise which judges by their upbringing and experience are ill-qualified to perform" 16.
Lord Diplock classifies under three heads the grounds upon which administrative action is controlled by judicial review. The first ground he calls "illegality", the second "irrationality" and the third "procedural impropriety". He expects further development on a case by case basis and to add in course of time new grounds, such as "proportionality" which is a principle that has come to be recognised in administrative law of several European countries (ibid. p. 1196). 17. "Illegality" as a ground means that the decision-maker must understand correctly the law that governs his decision-making power and must apply that law. The question whether he has or has not correctly understood the law and given effect to it 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." (ibid). 18. "Irrationality" is what is generally referred to as "Wednesbury unreasonableness" (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation), (1948) 1 K. B. 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 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." (ibid). 19. Lord Diplock refers to "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." (ibid). 20. The decision of the Commission to publish the second list was one which related to policy or managerial discretion.
20. The decision of the Commission to publish the second list was one which related to policy or managerial discretion. The fact that that decision involved cancellation of the first list, or that the reasons stated by the Commission in justification of the cancellation of that list do not appal to this Court as correct, cannot be a ground to characterise the decision as vitiated by reason of illegality, irrationality, procedural impropriety or any other like circumstance of abuse of power. In fact there is no finding that any such vitiating circumstance existed. This Court in the present proceeding does not sit in judgment over the merits of the decision. 21. In the circumstances, we set aside the judgment under challenge and allow the appeal. We do not, however, make any order as to costs.