Judgment :- Common Judgment: P.K. Misra, J The present writ petitions have been filed by the Secretary to the Government of Tamil Nadu in Home Department and the Chairman of the Tamil Nadu Uniformed Services Recruitment Board against the common order dated 20.12.2000 passed by the Tamil Nadu Administrative Tribunal in a batch of Original Applications filed by the present contesting respondents and many others. Under the said impugned order, the Tribunal has issued a direction to the present petitioners to issue orders of appointment, subject to verification of the antecedents of the candidates. 2. The facts giving rise to the present writ petitions are as follows :- For convenience, the writ petitioners are referred to as “the Government” and the applicants who had filed the Original Applications before the Tribunal seeking employment are referred to as “the candidates”. The Government issued Notification dated 15.3.1998 inviting applications for filling up 5,032 vacancies to the post of Women Police Constable Selection Grade-II. As per the prescribed procedure, the candidates are required to undergo various qualifying tests. As per such procedure, candidates who have requisite educational and age eligibility, would be considered for height measurement test and if they qualified in such height measurement test, they will be allowed to participate in physical efficiency test and those who qualify in physical efficiency test would be permitted to sit in the written test and the candidates who qualify in the written test, would be called for the interview and thereafter who qualify in the interview, would be subjected to medical examination. For physical efficiency 45 marks, for written test 40 marks and for interview 15 marks had been allotted. Out of 45 marks for physical efficiency test, 15 marks are allotted for running, 15 marks for Long Jump and 15 marks for throwing. As per the norms, a candidate is required to undertake a test in throwing short-put/cricket ball, running 100 metres/200 metres within a particular time span and long-jump upto a particular minimum distance. In the present case, we are concerned only with 100 metres running. For 100 metres running, it has been prescribed that the candidates who run within 16.5 seconds, would be given one star (5 marks); those who complete within 15.5 seconds, would be given two stars (10 marks) and those who complete within 14.5 seconds, would be given three stars (15 marks). For 100 metres running, it has been prescribed that the candidates who run within 16.5 seconds, would be given one star (5 marks); those who complete within 15.5 seconds, would be given two stars (10 marks) and those who complete within 14.5 seconds, would be given three stars (15 marks). A candidate in order to qualify in the physical efficiency test, is required to pass each test, such as throwing, running, jumping, with minimum one star. Recruitment tests were conducted in 11 centres including Dindigul. On completion of the physical efficiency test between 25.10.1999 and 29.10.1999, candidates who had qualified by securing the requisite marks in the three physical efficiency tests, namely throwing, running and jumping, were allowed to appear in the written test on 10.11.1999 and thereafter, successful candidates were interviewed on 20.11.1999 and thereafter successful candidates were subjected to medical test on 18.2.2000. However, after completion of the above said process, the Government decided to hold a second running test for the successful candidates from Dindigul centre. Accordingly, De novo physical efficiency test in 100 metres running event was conducted on 19.6.2000 in the presence of the Inspector General of Police and the Member Secretary of the Selection Board and some other high ranking officers. On the basis of such De novo 100 metres running race, 41 candidates were declared to have secured the minimum required marks and orders of rejection were issued in respect of the other candidates. Many of those candidates who did not obtain the minimum qualifying marks in the 100 metres running filed various Original Applications before the Administrative Tribunal. The Administrative Tribunal, under the impugned order, came to the conclusion that there was no basis for subjecting the candidates to a second running test and accordingly, issued a direction for giving employment to the applicants before the Tribunal. This order is being impugned in the present writ petition. 3. Before the Tribunal, the main contentions of the candidates were to the following effect :- (a) After the entire selection process was over and the candidates had been selected and subjected to medical test, the Government acted illegally and arbitrarily in directing for a second running test on the basis of mere apprehension without any justifiable basis. (b) The candidates were unjustifiably required to run 130 metres and not 100 metres in the second run. (b) The candidates were unjustifiably required to run 130 metres and not 100 metres in the second run. (c) The candidates had been made to run together without any separate tracks. (d) Rejection orders in cyclostyled forms were handed over to the candidates soon after the completion of the second running in a mechanical manner. 4. A counter affidavit had been filed on behalf of the Government denying the allegations. In the counter affidavit, emphasis was laid on the fact that out of 704 candidates who appeared for the running test, 481 candidates (about 70%) had been awarded three stars (15 marks), which was disproportionately high as compared to the candidates securing three stars (15 marks) in 100 metres run held at the other centres. Three candidates, who were pregnant at the time of the first 100 metres test, had also secured three stars (15 marks). The allegation to the effect that in the re-test, the candidates were forced to run 130 metres, was denied. However, it was admitted that no separate track markings had been prepared and ten candidates were asked to run at a time. 5. The basic conclusions of the Tribunal, on the basis of which Original Applications were allowed, are to the following effect :- (1) The original tests had been conducted in October, 1999 and thereafter written test had been conducted on 10.11.1999; the viva-voce test was conducted on 20.11.1999 and medical test was conducted on 18.2.2000. If there was any irregularity in the first test, the Government should not have waited for completion of the entire process before directing for a second running test. In other words, there was no reason to hold a second test after completion of the entire process of selection. (2) Since the candidates had been selected, they had legitimate expectation of being appointed to the service and they should not have been subjected to second test and since a valid right had accrued to them, such a right should not have been taken away arbitrarily. (3) The Board had found that three pregnant women had completed the running test within 14.5 seconds. It is not impossible for the pregnant women to complete such running within 14.5 second as per the opinion of the various experts and textbook writers. (4) The Tribunal further observed: “ . . . (3) The Board had found that three pregnant women had completed the running test within 14.5 seconds. It is not impossible for the pregnant women to complete such running within 14.5 second as per the opinion of the various experts and textbook writers. (4) The Tribunal further observed: “ . . . From the records, we are not able to find whether after 8.5.2000, Thiru V.K.Rajagopalan, conducted any detailed enquiry or not. The reports and the statements recorded from the 12 officials were not produced.” (5) There is no evidence of collusion among different officials and no fault had been found to have been committed by any of the candidates. (6) The Tribunal further observed : “ It is stated that the officials themselves were surprised to find that 70% of the candidates have secured 15 marks (3 starts). From the aforesaid report, it is clear that apart from the suspicion of laxity, whether the candidates were responsible for the same, has not been made out, as a matter of fact. In the resolution dated 8.5.2000, it is seen that 958 candidates were finally selected throughout the State from 11 centres and out of 958 candidates, 416 candidates were from Dindigul centre.” (7) The Tribunal further observed that out of three pregnant women, only one had been selected after the second running. 6. The Tribunal has not recorded any finding whether actually the candidates were asked to complete 130 metres of running instead of 100 metres and as to whether the rejection orders had been issued in a mechanical manner. 7. In the present writ petitions, it has been contended on behalf of the Government that since unusually high percentage of candidates, including three pregnant ladies, had secured full marks in 100 metres running, the Board had every justification to ask for a second running test in respect of those candidates who had succeeded. It is further contended that at any rate, since the candidates willingly participated in the second running test, it is not open for them to contend after participating in the second running test that there was no justification for such a test and this vital aspect has been lost sight of by the Tribunal. It is further contended that at any rate, since the candidates willingly participated in the second running test, it is not open for them to contend after participating in the second running test that there was no justification for such a test and this vital aspect has been lost sight of by the Tribunal. It is further contended that the ratio of the decision reported in 1994(5) SCC 663 (UNION OF INDIA AND OTHERS v. ANAND KUMAR PANDEY & OTHERS) is also applicable to the present case. 8. Mr. Sundar and Mr. Ajmal Khan, learned counsels for the respondents have contended that there is no allegation either in the Board’s resolution or in any enquiry report against any of the candidates and there was no collusion between the candidates and the persons who had supervised the tests. It is further contended that the decision of the Supreme Court in 1994 (5) SCC 663 (cited supra) is not applicable, as in the said case there was an allegation of malpractice in a particular centre and on enquiry, it was found that there was large scale malpractice, where, even the candidates had blindly repeated many wrong answers and at any rate, there was a preceding enquiry in such case. In the present case, there was no such enquiry and no action seems to have been taken against the officials who supervised the first test. It is also emphasised that since the candidates had also passed two other physical efficiency tests, in respect of which no objection has been raised by the Government, in normal course, it must be considered that such candidates were physically fit persons. The other contention is to the effect that 171 candidates, who were found successful after completion of the normal process of selection, have been victimised due to administrative reason, as the authorities found that large number of persons belonging to a particular centre had been selected. 9. The basis for holding a second test in 100 metres running is reflected in the meeting of the Board dated 8.5.2000. It is necessary to extract the relevant portion of the proceedings of the Chairman, Tamil Nadu Uniformed Services Recruitment Board hereunder :- “ A review of the results of all the candidates who had appeared for the recruitment of Women Police Constables for the year 1997-98 was conducted by this Board. It is necessary to extract the relevant portion of the proceedings of the Chairman, Tamil Nadu Uniformed Services Recruitment Board hereunder :- “ A review of the results of all the candidates who had appeared for the recruitment of Women Police Constables for the year 1997-98 was conducted by this Board. The review revealed that in the recording of performance of candidates in 100 Mts. running event in the Physical Efficiency Test the Sub-Committee of the Dindigul Centre had awarded 3 stars for 481 candidates, 2 stars for 114 candidates and 1 star for 109 candidates out of 704 candidates who had appeared for 100 Mts. running event. The Board felt that the sub-committee of Dindigul centre appeared to have been rather too lenient in awarding marks in the Physical Efficiency Test, particularly in 100 metres running event. 2. While the percentage of those who secured 15 Marks in the 100 Mtrs. running event in Dindugul centre is about 70%, the percentage of candidates who secured 3 stars in the same event in the remaining 10 centres works out to less than 5%. In the Medical test conducted by the Medical Board, three women candidates have been declared as Medically temporarily unfit, due to advanced stage of pregnancy. These women candidates ought to have been pregnant at the time of PET but on perusal of the coding sheets it revealed that these candidates have been awarded 15 marks in the running event by the sub-committee. This was also examined in detail by the Board. Since the results of the candidates in 100 mtr. events seem to be rather abnormal when compared with other centres the Board observed some suspicion of laxity in the tests particularly in 100 mtrs. running events conducted by officers in the Dindugul centre. 3. Therefore, it has been decided by the Board to conduct the test in the running event only for all the 416 candidates of Dindigul centre who have been included in the 958 candidates finally selected throughout the state from the 11 centres, afresh. The Board also notified the decision to conduct a detailed enquiry by Thiru.V.K.Raja Gopalan, IPS, Additional Director General of Police and Member, Tamilnadu Uniformed Servies Recruitment Board about any probable omission and commission by the sub-committee Members and others who conducted the physical efficiency test in Dindugal centre. The Board also notified the decision to conduct a detailed enquiry by Thiru.V.K.Raja Gopalan, IPS, Additional Director General of Police and Member, Tamilnadu Uniformed Servies Recruitment Board about any probable omission and commission by the sub-committee Members and others who conducted the physical efficiency test in Dindugal centre. The Board will also recommend to the authority concerned to initiate appropriate disciplinary action against these if they are found guilty of malpractice/malafide selection etc. with due intimation to the Government. 4. The date for conducting the fresh test in 100 metres running event will be decided by the Board in due course." 10. The Tribunal has opined that if the irregularities had been committed in October, 1999, there was no justification to wait until the entire selection process was over to have a second running test. However, the Tribunal has concluded: “ 18. It is true that the result of the 100 mtrs. running test appears to be abnormal in Dindigul centre, when compared with the results of the other ten centres. The point is whether simply because of the presumption of laxity on the part of the officials, and the impossibility on the part of the three pregnant women getting 15 marks in running test, it is proper to cancel the results in toto. (Emphasis added) It has been further concluded by the Tribunal: "23. .. .. .. If the respondents, particularly the Chairman, Tamil Nadu Uniformed Services Recruitment Board, has chosen to take action at the earliest possible time, i.e. immediately after the result of 100 mtrs. running event was known, certainly, there is every justification to order the re-running test. As already stated, after everything was over, when the petitioners were eagerly awaiting the orders of appointment, the call letters were sent for re-running test. Even though there is justification for suspicion about the laxity on the part of those who conducted the running tests, equally the laxity on the part of the respondents to take immediate action and permitting the petitioners to take part in the subsequent events has to be taken serious note of." (Emphasis added) The Tribunal further observed: "27. If the alleged irregularities have been found out immediately after the results for the running test were announced, justification would be there to cancel the selection. If the alleged irregularities have been found out immediately after the results for the running test were announced, justification would be there to cancel the selection. Similarly, if proper enquiry has established the irregularities committed by the officials who conducted the running test or atleast if there was some nexus found out on the part of the petitioners with reference to the irregularities, definitely Judicial forum will interfere. In these cases, at every stage, the petitioners were given to understand their success in each test. At every stage, the petitioners were made to develop the hope in themselves that they would be selected. That apart, when police verification was made with reference to the antecedents of the petitioners, each of them was made to expect or hope that everything was over and if the verification does not disclose anything against them they would be selected." 11. From the aforesaid conclusions of the Tribunal, particularly, the emphasised portions, it is apparent that even the Tribunal was of the view that out of the candidates who had appeared for 100 metres of running test at Dindigul, abnormally high number of candidates have secured full marks (15 marks equivalent to three stars) as compared to other centres. Once the Board came to the aforesaid conclusion, which is also indirectly affirmed by the Tribunal, the question to be decided is as to whether the Tribunal was justified in reversing the order of the Board directing successful candidates from Dindigul centre to undergo second 100 metres running test. The decision of the Board was founded upon justifiable and relevant factor and the Tribunal was obviously not the appellate authority to review such administrative order which was not arbitrary or capricious. Moreover, it has to be noticed that the Board had not cancelled the result in respect of all the candidates, but on the other hand, had given such candidates a fresh opportunity to undertake the very same test once again. It is not disputed that as per the Board’s direction, intimations were communicated on 11.5.2000, which must have been received by the candidates within 4 to 5 days and the test was held on 20.6.2000, after a gap of more than a month. If the candidates had any objection to the second running test, such candidates could have raised objection at that stage. If the candidates had any objection to the second running test, such candidates could have raised objection at that stage. It is of course true that it is averred in some of the Original Applications that the candidates had raised oral protests, but such assertions had been denied. In the absence of any contemporaneous document indicating about the slightest murmur of protest by the candidates, the contention raised on behalf of the candidates that they had raised protest, cannot be accepted. 12. Learned counsel appearing for the respondents has contended that, since the certificates of the candidates were with the authorities, the candidates were forced to undertake the second test, otherwise, their career would have been spoiled by the authorities. The bald assertion made in the O.As. and repeated in the counter affidavit filed in the High Court would not convince us to come a positive conclusion that as a matter of fact, the candidates were forced to undertake a second running test. It is to be noted that the Tribunal has also not come to a conclusion that in fact the candidates had been forced to undertake the second running test inspite of their protest. 13. Once it is concluded that the candidates had accepted the direction regarding the second running test and had willingly participated, they cannot now be heard to say that the direction in respect of having a second running test was improper. The principle of acquiescence or waiver would be squarely applicable. 14. Mr. M.Ajmal Khan, learned counsel appearing for most of the contesting respondents, has vehemently contended that since the action of the Board in asking for a second running test was arbitrary, it must be taken that the right of equality as enshrined in Article 14 of the Constitution, has been violated and since there is no question of waiver of fundamental right, the court is required to find out whether such a direction for the second running test is legal and valid. 15. Any arbitrary action which results in discrimination can of course be taken to be violative of the principles enshrined in Article 14. 15. Any arbitrary action which results in discrimination can of course be taken to be violative of the principles enshrined in Article 14. In the present case, it cannot be said that asking the successful candidates to undertake the second test of running is violative of Article 14 in any manner, because such direction was given on the basis of a peculiar situation that the candidates appearing at such centre had secured unusually high marks as compared to other centres. 16. Learned counsel for the contesting respondents has also contended that the decision reported in 1994 (5) SCC 663 (cited supra) relied upon by the Government is not at all applicable to the present case, as in the said case, the allegation relates to malpractice and an enquiry had been conducted and on the basis of such enquiry, results of such examination had been cancelled and those candidates had been directed to re-appear in the written examination. It is true that in the present case, before taking a formal decision, the Board had not undertaken a formal enquiry. However, the absence of a formal enquiry does not vitiate the order of the Board. The basic facts, which were apparent from the records, were available to the Board. The Board has emphasised on two aspects, namely, a high percentage of candidates (about 70%) appearing at Dindigul centre had secured full 15 marks in the running event as compared to 5% at other centres. The Board also considered the fact that even three pregnant women could complete such 100 metres running within the time limit of 14.5 second entitling them to get full 15 marks. Since the basic facts are indisputable, holding or non-holding of a formal enquiry is immaterial. 17. It is of course true that the Board could have taken such a decision immediately after the first running test was over, but the fact that such a decision was taken after completion of all the other formalities, does not have the effect of vitiating the order of the Board in any manner. It is quite possible that even at that stage, the significance of such disproportionate number of persons completing within a period of 14.5 seconds, might not have been emphasised. It is quite possible that even at that stage, the significance of such disproportionate number of persons completing within a period of 14.5 seconds, might not have been emphasised. Even though such a decision could have been taken earlier, merely because there was some delay in taking such a decision, is not decisive in coming to the conclusion that the decision of the Board was vitiated. The fact remains that the Board had taken into account the relevant circumstance. Such an administrative decision taken by the Board was not available to be over-turned by the Tribunal on the basis of certain considerations. 18. The Tribunal has emphasised on the fact that no report had been submitted thereafter or report had not been produced. Further inquiry in the matter was relating to the question of collusion between the supervisors and the candidates. If it would have been found that the supervisors had colluded for a collateral motive, it may be that the Government would have taken administrative action against them. Non-taking of the administrative action against the officials supervising 100 metres running cannot vitiate the decision of having a second run test. Similarly the fact that none of the candidates were individually responsible. is also immaterial. Even though the candidates might not have contributed to the chaotic situation, the very fact that inflated marks were given and the fact that the candidates did not protest go a long way to justify the direction of the Board. Moreover, by permitting the successful candidates to run for the second time has not caused any prejudice as they had the opportunity to repeat their performance. 19. Learned counsel appearing for the respondents has also relied upon the principle of legitimate expectation by referring to the decision of the Supreme Court in JT 2000 (5) SC 557 (BHUPINDERPAL SINGH & OTHERS v. STATE OF PUNJAB & OTHERS), AIR 1999 SC 1081 (PUNJAB COMMUNICATIONS LTD. v. UNION OF INDIA AND OTHERS) and AIR 1998 SC 2779 (NATIONAL BUILDINGS CONSTRUCTION CORPORATION v. S. RAGHUNATHAN AND OTHERS). 20. In JT 2000(5) SC 557 (cited supra), the candidates were notified to file their applications and their eligibility was to be considered by reference to first advertisement. By a subsequent advertisement, fresh applications were invited. Some of the candidates who were eligible by the date of second advertisement, but ineligible by the first advertisement, were selected. 20. In JT 2000(5) SC 557 (cited supra), the candidates were notified to file their applications and their eligibility was to be considered by reference to first advertisement. By a subsequent advertisement, fresh applications were invited. Some of the candidates who were eligible by the date of second advertisement, but ineligible by the first advertisement, were selected. However, because of their ineligibility by the first advertisement, they have not been given appointment and such action was found to be justified by the High Court. In the appeal, the Supreme Court, while observing that the decision of the High Court was legally correct, in view of the special feature of the case, gave direction that the selected applicants, who have been given appointment letters, may be given posting order. This was specifically done by invoking Article 142 of the Constitution. We do not think that the ratio of the aforesaid decision would be applicable to the present case, where the candidates after having participated in the second running test and only because they were not successful, had challenged it subsequently. 21. The decision reported in AIR 1999 SC 1081 (cited supra) relates to the question of acceptability or otherwise of the tender and the Court invoked the doctrine of legitimate expectation. We do not think that the said principle has any applicability to the facts of the present case. 22. In AIR 1998 SC 2779 (cited supra), while recognising the principle of legitimate expectation, in fact, the Supreme Court reversed the decision of the High Court which had granted the relief relating to payment of “foreign allowance” on the basis of legitimate expectation. Again with respect, we do not find any scope to apply the ratio of the said decision to the present case. 23. Learned counsel for the respondents has contended that no separate tracks had been marked and the candidates had been made to run together, which seems to be somewhat justified. In the counter affidavit filed on behalf of the Government before the Tribunal, it had been indicated that ten candidates were asked to run together. 24. It is not disputed that no separate tracks had been indicated. It is obvious that because of such bunching together, the candidates must have faced disadvantage. In the counter affidavit filed on behalf of the Government before the Tribunal, it had been indicated that ten candidates were asked to run together. 24. It is not disputed that no separate tracks had been indicated. It is obvious that because of such bunching together, the candidates must have faced disadvantage. In order to mitigate such a possible disadvantage, a fresh opportunity can be given to those candidates to have another 100 metres running test on a normal running surface having proper lane indications. Such a direction would also mitigate the grievance that the candidates had been asked to run for 130 metres, even though we have not found any reasonable basis for such an allegation. 25. For the aforesaid reasons, the writ petitions are allowed and the order passed by the Tribunal is quashed. However, the writ petitioners are directed to hold a fresh 100 metres running test in the presence of responsible superior officers at an appropriate place with proper marking. This should be done by giving the candidates sufficient time of atleast one month to prepare themselves and if any of the candidates secures pass mark, the question of their selection is to be considered. The Government of course, is free to appoint other candidates in respect of whom no dispute has been raised. No costs.