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2012 DIGILAW 871 (CAL)

Soumen Ghosh v. STATE OF WEST BENGAL

2012-09-18

ANINDITA ROY SARASWATI, NISHITA MHATRE

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Judgment :- Nishita Mhatre, J. 1. These petitions have been heard together as they challenge the same judgement and order of the West Bengal Administrative Tribunal passed on 22nd July 2009. By the impugned order the Tribunal has allowed Original Application No. 1001 of 2008 while dismissing Original Application No. 4523 of 2008. W.P.S.T. 611 of 2010 has been preferred against the order passed in Original Application No. 4523 of 2008 and W.P.S.T. No. 612 of 2010 has been filed challenging the order in Original Application No. 1001 of 2008. These petitions have been filed by two persons who claim that they were prevented from appearing for the examination held in December 2007 for recruitment to the post of Lower Division Clerk in the Regional Offices under the Directorate of Agriculture. The Petitioners in both these petitions will hereafter be referred to as the Petitioners. W.P.S.T. No. 698 of 2009 has been preferred by the State of West Bengal and its officers, challenging the same order of the Tribunal. 2. It would be necessary to state the facts in order to appreciate the questions of law raised before us. An advertisement was published in the Bengali daily “Aajkal” and the English newspaper “The Statesman” on 12th October 2007, for recruitment to 331 vacant posts of Lower Division Clerks in the Regional Offices under the Directorate of Agriculture. A written examination was scheduled on 2nd, December 2007. The allocation of seats in the various centres was published in the aforesaid two daily newspapers through a notice which also mentioned that candidates who had not received the admit card in order to appear for the examination, were required to contact the Principal Agriculture Officer in the respective districts on 3rd, 4th & 5th December 2007 at a specified time. A corrigendum was issued on 6th December 2007 in the same newspapers directing candidates who had not received the admit cards to contact the Principal Agriculture Officer on 6th & 7th December 2007 at a stipulated time. A second corrigendum was issued on 8th December 2007 requesting candidates who had not received their admit cards to collect a duplicate admit card either from the office of the Principal Agriculture Officer in the respective districts or from the State Control Room at the State Government Circuit House in Calcutta. 3. A second corrigendum was issued on 8th December 2007 requesting candidates who had not received their admit cards to collect a duplicate admit card either from the office of the Principal Agriculture Officer in the respective districts or from the State Control Room at the State Government Circuit House in Calcutta. 3. The examination was held as scheduled on 9th December 2007 and the merit list was published on the official website of the Government of West Bengal as also in the District Agricultural Offices on 29th December 2007. 4. A notification was issued on 18th January 2008 signed by the Joint Secretary to the Government of West Bengal, Agriculture Department, cancelling the aforesaid examination and the results declared. It was further mentioned in the notification that “it was learnt that some candidates could not appear for examination for no fault of their own and that in this situation and in the interest of natural justice the examination was cancelled and in the interest of public service”. 5. Being aggrieved by the cancellation of the examination some of the persons whose names figured in the merit list preferred Original Application No. 1001 of 2008 before the West Bengal Administrative Tribunal. They sought the revocation of the order dated 18th January 2008, cancelling the examination held for recruitment to the post of Lower Division Clerk. For the sake of brevity the applicants in Original Application No. 1001 of 2008 will be referred to hereinafter as “the private respondents.” 6. The petitioners filed Original Application No. 4523 of 2008 on 7th 2008 in which they sought the following prayers:- a) Do issue mandate upon the respondents authorities, their men and agents to ensue recruitment process for the post of Lower Division Clerks under the Directorate of Agriculture and to issue the admit card to the applicants for appearing in the said examination. b) Do issue mandate upon the respondents authorities, their men and agents and subordinate thereto to produce or cause to be produce the entire records relating to this case and on production the same to quash the memo / letter if any, prejudicial to the interest of the applicants. c) To pass such other or further order or orders as to Your Lordships may seem fit and proper. 7. c) To pass such other or further order or orders as to Your Lordships may seem fit and proper. 7. The State of West Bengal and its officers who are parties to Original Application No. 1001 of 2008 filed an affidavit in reply contending that on a preliminary inquiry it was found that out of 76,470 eligible candidates 41.38 per cent were unable to appear for the examination for no fault of their own. It was further contended that the examination was cancelled in view of the wider public interest. 8. A rejoinder was filed by the private respondents on 23rd of 2008 before the Administrative Tribunal contending, inter alia, that a written examination was conducted by the Railway Recruitment Board, Kolkata for the post of Enquiry cum Reservation Clerk and Junior Account Assistant cum Typist on the same day, that is, on 9th December 2007. It was further pleaded that many of those who had applied for the post of Lower Division Clerks had also applied for recruitment with the railways and had, in all probability, opted to appear for the examination conducted by the Railway Recruitment Board rather than that conducted by the Department of Agriculture. It was also contended that on an application being made under the Right to Information Act the Directorate of Agriculture revealed that no complaint had been received with regard to the examination for the recruitment to the post of Lower Division Clerk held on 9th December 2007. The applicant was also informed 339 admit cards were returned to the Agricultural Directorate. 9. A supplementary affidavit was filed by the petitioners in their own application on 1st October 2008 before the Tribunal alleging that the state had not conducted the examination held on 9th December 2007 fairly and in accordance with law. 10. An order was passed by the Tribunal on 6th November 2008 allowing Original Application No. 1001 of 2008 filed by the private respondents, quashing the order of the State Government cancelling the examinations for the post of Lower Division Clerk. Aggrieved by that order the petitioners preferred W.P.S.T. No. 2015 of 2008. The Division Bench of this Court set aside the order of the Tribunal and remanded the Original Application for a fresh hearing. Aggrieved by that order the petitioners preferred W.P.S.T. No. 2015 of 2008. The Division Bench of this Court set aside the order of the Tribunal and remanded the Original Application for a fresh hearing. The Division Bench further directed that both Original Application No. 1001 of 2008 filed by the private respondents and Original Application No. 4523 of 2008 preferred by the petitioners should be heard together, expeditiously. The petitioners sought to file a second supplementary affidavit containing allegations about the purported irregularities, favouritism, nepotism etc. on the part of the State Government in the conduct of the examination. However, the Tribunal refused to accept the affidavit. The petitioners preferred a Writ Petition before this Court in which the Division Bench of this Court on 12th May 2009 directed that the petitioners’ second supplementary affidavit should be accepted by the Tribunal. 11. On 4th March 2009 the State had already filed its reply in Original Application No. 4523 of 2008, refuting the allegations and insinuations of the petitioners. It appears that although the State served the petitioners (the applicants therein) and the private respondents their affidavit – in – reply to the second supplementary affidavit filed by the petitioners on 26th June 2009, they did not tender it in Court. 12. The Tribunal by its impugned order dated 22nd July 2009 quashed the order of 18th January 2008 cancelling the examination held on 9th December 2007 for recruitment to the post of Lower Division Clerk. The Tribunal simultaneously dismissed Original Application No. 4523 of 2008 by observing that additional facts mentioned in the supplementary affidavit filed by the petitioners were an afterthought and did not deserve to be countenanced. 13. Mr. Bandyopadhyay, the learned counsel appearing for the petitioners assailed the judgement of the Administrative Tribunal principally on five grounds. Firstly, he submitted that the Tribunal has not considered the State’s pleadings in its affidavit-in-reply filed before the forum, where the State had contended that is was necessary to cancel the examination in public interest because there was no transparency while holding the examination. He then submitted further that the State had treated the list of candidates who had passed the examination as a resultsheet and not a panel for selecting candidates and thus the private respondents had no locus standi to approach the Tribunal. He then submitted further that the State had treated the list of candidates who had passed the examination as a resultsheet and not a panel for selecting candidates and thus the private respondents had no locus standi to approach the Tribunal. The learned counsel has criticised the judgement of the Tribunal by pointing out that the submissions of the petitioners and the relief prayed for by them in Original Application No. 4523 of 2008 have not been considered by the Tribunal. According to him, the petitioners had alleged that the officers concerned had not given them the admit cards although they had approached them within the stipulated time to appear for the examination which was scheduled on 9th December 2007. He urged that the very fact that almost 40 per cent of those who had applied for recruitment to the post of Lower Division Clerk had not been able to appear for the examination either because the Admit card was not sent to them or given to them by the officers concerned when they were approached. The learned counsel’s next submission was that although the order dated 18th January 2007 does not mention that the examination was being cancelled because some candidates could not appear for the examination, the state had clarified the need for such a step in its affidavit filed before the Tribunal. He urged thereafter that as the order dated 18th January 2008 was an administrative decision of the State, it could supplement the reasons for such a decision by was of affidavits filed in Court. For this proposition Mr. Bandyopadhyay relied on the judgement of the Supreme Court in Mohinder Singh Gill & Anr. vs. The Chief Election Commissioner, New Delhi & Ors. reported in AIR 1978 SCC 851. He submitted further that the reasons for passing an administrative order need not be elaborate and may be contained in records maintained by the State on the issue. He fortified his submission by relying on the judgement in the case of M.J. Sivani & Ors. vs. State of Karnataka & Ors. reported in (1995) 6 SCC 289 . According to the learned counsel neither the State Authorities not the Administrative Authorities were required to furnish reasons for passing an order in the order itself and the reasons can always be disclosed in case there is a challenge to the order. vs. State of Karnataka & Ors. reported in (1995) 6 SCC 289 . According to the learned counsel neither the State Authorities not the Administrative Authorities were required to furnish reasons for passing an order in the order itself and the reasons can always be disclosed in case there is a challenge to the order. He pointed out the decision in Union of India & Ors. vs E.G. Nambudiri reported in (1991) 3 SCC 38 ; Registrar General of High Court, Calcutta & Anr. vs. Chitra Biswas & Ors. reported in 2006 1 CHN 110 and Chairman, All India Railway Recruitment Board & Anr. vs. K. Shyam Kumar & Ors. reported in (2010) 6 SCC 614 . Mr. Bandyopadhyay, then submitted by relying on the judgement in the case of Shama Prashant Raje vs. Ganpatrao & Ors. reported in (2000) 7 SCC 522 that the correctness of an administrative decision cannot be examined by the Administrative Tribunal as it exercises powers which are akin to Articles 226 and 227 of the Constitution of India. The learned counsel drew out attention to the pleadings in Original Application No. 1001 of 2008 filed by the private respondents and submitted that they have no indefeasible right to be appointed, merely because their names figure in the merit list. He placed reliance on the judgement in the case of Shankarsan Dash vs. Union of India reported in (1991) 3 SCC 47 and Union of India & Ors. vs. Kali Dass Batish & Anr. reported in (2006) 1 SCC 779 . In substance Mr. Bandyopadhyay urged that the decision of the State to cancel the examination was in the wider public interest and therefore it ought to have been upheld by the Tribunal. 14. Mr. Joytosh Majumder, learned counsel appearing for the Government adopted the arguments of Mr. Bandyopadhyay and supplemented them with his own. He was at pains to point out that the list of persons which was published on the website of the State Government was not a panel of successful candidates to be appointed but was merely a result-sheet or merit list. This, according to the learned counsel, could not be termed as a select list. He was at pains to point out that the list of persons which was published on the website of the State Government was not a panel of successful candidates to be appointed but was merely a result-sheet or merit list. This, according to the learned counsel, could not be termed as a select list. He pointed out that the corrigendum of 8th December 2007 directing the candidates to collect their admit cards from various authorities was issued at the eleventh hour and, therefore, the State felt that it was prudent to cancel the examination when it found that a substantial number of candidates had not appeared for the examination. According to him it was the bounden duty of the State to act fairly and justly so as to ensure that persons from all sections of society were given a fair opportunity to appear for the examination which was scheduled on 9th December 2007. He submitted that far from the state’s impugned action being arbitrary, it was a just and fair decision so that the recruitment process was inclusive. According to him so long as the decision making process was fair, reasonable and transparent, the State's action to cancel the examination could not be questioned. He placed reliance on the judgement in the case of State of Orissa vs. Mamata (2011) 3 SCC 436 . He then reiterated the argument of Mr. Bandyopadhay that there was no indefeasible right in the private respondents to be appointed as Lower Division Clerk and, therefore, they had no locus to file the Original Application before the Tribunal. For this proposition Mr. Majumdar has relied on the judgements in the case of S.S. Balu vs. State of Karnataka (2009) 2 SCC 479 ; Secretary, Board of Basic Education, Uttar Pradesh. vs Rejendra Singh & Ors. reported in (2009) 17 SCC 452 ; Punjab State Electricity Board and Ors. vs. Malkiat Singh reported in (2005) 9 SCC 22 ; State of Orissa and Ors. vs. Bhikari Charan Khuntia & Ors. reported in (2003) 10 SCC 144 ; Union of India and Ors. vs. Kali Dass Batish & Anr. reported in AIR 2006 SC 789 ; S. N. Chandrashekar & Anr. vs. State of Karnataka & Ors. reported in (2006) 3 SCC 208 . 15. Mr. vs. Bhikari Charan Khuntia & Ors. reported in (2003) 10 SCC 144 ; Union of India and Ors. vs. Kali Dass Batish & Anr. reported in AIR 2006 SC 789 ; S. N. Chandrashekar & Anr. vs. State of Karnataka & Ors. reported in (2006) 3 SCC 208 . 15. Mr. Sakti Nath Mukherjee the learned counsel who led the arguments for the private respondents submitted that the action of the State in cancelling the examination was not based on any material or any complaint. He submitted that the State had unjustly and with ulterior motives cancelled the examination although it wanted to fill in 331 posts of Lower Division Clerk and a substantial number of candidates had appeared for the examination. He drew our attention to the replies filed by the State to the Application filed by the private respondents and to the one preferred by the petitioners and submitted that they were at variance. He pointed out that while the reply to the private respondents' Application set out the reasons for the cancellation of the examination, the reply filed by the State in O. A. 4523 clearly and in unambiguous terms indicated that no complaint was filed by any candidate who had applied for the recruitment and that ample opportunity had been given to candidates to appear for the examination which was scheduled on 9th December 2007. The learned counsel then pointed out that a supplementary affidavit was prepared by the State in Original Application No. 4523 of 2008 which was served on the private respondents but it was withheld by the State and not filed in the Tribunal. By an order of this Court, this affidavit is now on record, pointed out the learned counsel. He next submitted that the recruitment rules provide that a written examination is the only method of selecting candidates; the rules do not envisage an interview. Therefore, according to the learned counsel the list which was published on the website of the State Government was a merit list as pleaded in the affidavit filed by the State in Original Application No. 4523 of 2008. The learned counsel pointed out that the recruitment rules have been framed under Article 309 of the Constitution of India. The examination was held pursuant to the exercise of the powers vested in the authorities under these rules. The learned counsel pointed out that the recruitment rules have been framed under Article 309 of the Constitution of India. The examination was held pursuant to the exercise of the powers vested in the authorities under these rules. These powers are vested in the Director of Agriculture and not the Department of Agriculture and, therefore, cancellation of the examination by the Joint Secretary was bad in law as he had no power or authority to act in this manner. He pointed out that the advertisement was issued by the Director of Agriculture for filing up posts of Lower Division Clerks in the Regional Offices of the Directorate of Agriculture. According to him, therefore, it was only the Directorate of Agriculture which could have cancelled the examination and not the Department of Agriculture. He then submitted that sufficient safeguards were taken for the issuance of admit cards to the prospective candidates and the mere fact that many of the candidates did not appear for the examination would not invalidate it. He also brought to our notice the fact that several examinations in the Government as well as other Public Sector organisations were scheduled on 9th December 2007 besides the examination for Lower Division Clerks in the Directorate of Agriculture. He has drawn our attention to the admit cards issued by the Railway Recruitment Board as well as the State in favour of one of the candidates for appearing in the examinations to be held on 9th December 2007. According to the learned counsel, therefore, many such candidates who had applied for all the examinations which were scheduled on the same day possibly opted to appear for the other examinations rather than that for the post of Lower Division Clerks. The learned counsel then urged that the very fact that no reasons or material which caused it to pass the impugned order cancelling the examination was produced by the State would indicate that it’s action was malafide and perverse. He drew our attention to the terminology used in the impugned order dated 18th January 2008. The examination was cancelled as “it is learnt” by the State, which according to the learned counsel indicates that there was no material to substantiate the order passed by the State. The learned counsel urges that the action of the State in cancelling the examination is arbitrary and unreasonable. The examination was cancelled as “it is learnt” by the State, which according to the learned counsel indicates that there was no material to substantiate the order passed by the State. The learned counsel urges that the action of the State in cancelling the examination is arbitrary and unreasonable. He cited the decision in the case of Monorangan vs. Union of India AIR 1980 SCC 2147 where the Court has observed that arbitrariness and unreasonableness are anathema to the State’s action. He pointed out that the State cannot claim immunity from its arbitrary action as it would defeat the purpose of Article 14 of the Constitution of India. He relied on the judgement in the case of Onkar Lal Bajaj and Ors. vs. Union of India and Anr. reported in (2003) 2 SCC 673 in support of his submission. The learned counsel then criticised the action of the State in cancelling the examination and submitted that Original Application was filed by the petitioners only in order to support the State’s action. He submitted that once the state had cancelled the examination by its order dated 18th January 2008 there was no need at all for the petitioners to file Original Application No. 4523 of 2008 on 7th July 2008 seeking admit cards for the examination which was already cancelled. He also pointed out that Original Application No. 4523 was not filed in a representative capacity and had been filed at the instance of the persons in the Department of Agriculture who had a vested interest in conducting the examination. The learned counsel then urged that no relief should be given to the two petitioners as an examination cannot be cancelled at their behest especially when they had not submitted any communication or complaint regarding the non-receipt or refusal of the admit cards. 16. While adopting the arguments of Mr. Mukherjee, Mr. Mitra, learned counsel appearing for some of the private respondents submitted that pursuant to the advertisement the application for recruitment was to be submitted alongwith a self-addressed envelope for being sent the admit card. According to the learned counsel there is no averment either in the Original Application or in the writ petition that the petitioners had in fact sent such an envelope. According to the learned counsel there is no averment either in the Original Application or in the writ petition that the petitioners had in fact sent such an envelope. The learned counsel pointed out that the pleadings contained in the petition regarding the non-receipt of the admit cards by the petitioners are completely vague and cannot be taken into consideration. He then pointed out that pursuant to an application made under the Right to Information Act the private respondents have been informed that 339 admit cards were returned to the State as they were not received by the candidates. The learned counsel submitted that the impugned order of 18th January 2008 cancelling the examination was arbitrary and unreasonable. He relied on the judgements in the case of Union Territory of Chandigarh vs. Dilbagh Singh and Ors. reported in (1993) 1 SCC 154 and Union of India and Ors. vs. Rajesh P.U., Puthuvalnikathu and Ors. reported in (2003) 7 SCC 285 in support of his proposition that the States action was arbitrary. The learned counsel placed reliance on the judgement in Girjesh Shrivastava and Ors. vs. State of Madhya Pradesh and Ors. reported in (2010) 10 SCC 707 in support of his submission that in case there were some illegal beneficiaries due to the examination held on 9th December 2007 there was no need to cancel the entire examination; all that the State could have done was to weed out those who had illegally benefited from the examination. 17. Mr. De, the learned counsel appearing for some of the private respondents has adopted the arguments advanced by Mr. Mukherjee and Mr. Mitra. He urged that this Court should not interfere with the decision of the Tribunal as the Government had not applied its mind while cancelling the examination. He submitted that if at all there were some deficiencies in the conduct of the examination because someone had indulged in inappropriate acts there was no need to cancel the entire examination. Mr. De, brought to our notice to the decision of Supreme Court in the case of East Coast Railway and Anr. vs. Mahadev Appa Rao and Ors. reported in (2010) 7 SCC 678 . 18. Mr. De, brought to our notice to the decision of Supreme Court in the case of East Coast Railway and Anr. vs. Mahadev Appa Rao and Ors. reported in (2010) 7 SCC 678 . 18. After considering the submissions of the learned counsel advanced before us, in our opinion the following issues arise for our determination :- (i) Whether the order dated 18th January 2008 has been passed by an authority that is not empowered to do so? (ii) Whether the order dated 18th January 2008 is arbitrary, capricious, malafide and unreasonable? (iii) Whether it was necessary to cancel the entire examination? (iv) Whether any relief could at all be granted to the petitioner when the only prayer made in the Original Application No. 4523 of 2008 was for the issuance of the admit cards to enable the petitioners to appear at the examination. 18. The order dated 18th January 2008 was issued in the name of the Government by the Joint Secretary to the Government of West Bengal, Agriculture Department. The advertisement for recruitment of Lower Division Clerks was issued by the Director of Agriculture. However, it is apparent from the other record including a communication sent to the District Magistrate and Collector by the Secretary, Agriculture Department, Government of West Bengal that the Agriculture Department had conducted the examination for recruitment to the post of Lower Division Clerk in the Regional Offices under the Directorate of Agriculture. The order for cancelling the examination has been passed in the name of the Governor. In these circumstances we do not find that the order is bad. The submission of Mr. Mukherjee that it has been passed by an authority that is not empowered to pass such an order, is untenable. 19. We will now consider whether the order of 18th January 2008 is required to be set aside on the ground that it has been passed malafide and perversely as a result of the arbitrary action taken by the State. 20. We will consider first the conspectus of decisions cited before us by the learned Counsel with regard to the State’s action being malafide and arbitrary. 20. We will consider first the conspectus of decisions cited before us by the learned Counsel with regard to the State’s action being malafide and arbitrary. In the case of Maru Ram vs. Union of India AIR 1980 SC 2147 the Court held that Article 14 of the Constitution is an expression of the egalitarian spirit of the Constitution of India and that it is a clear pointer that arbitrariness is anathema under our system. The Court reiterated the principal enunciated in Ramana Dayaram Shetty, vs. The International Airport Authority of India and Ors. reported in AIR 1979 SC 1628 where it was held that Article 14 strikes at arbitrariness in the State’s action and ensures fairness and equality of treatment. Such action of the state must be based on some rational and relevant principle, which is non-discriminatory. The Court then held that the principle of reasonableness and rationality which is legally as well as philosophically an essential element of equality or non-arbitrariness is projected by Article 14 and it must characterise every state action whether it be under authority of law or in exercise of executive power without making law. Similarly, in Onkar Lal Bajaj and Ors. vs. Union of India and Anr. (2003) 2 SCC 673 the Court observed that the expressions “public interest” or “ probity in governance” cannot be put in a straitjacket. The cardinal principle of governance, observed the Court, is based on the rule of law; not only has its basis to be transparent but it must create an impression that the decision making was motivated on the consideration of probity. The principle of governance has to be decided on the touchstone of justice, equity and fair play. Any decision of the Government which make look legitimate but as a matter of fact is taken in order to achieve popular accolade cannot be allowed to operate. These were judgements rendered by the Supreme Court in other fields. 21. In the area of service law, the Supreme Court in the case of East Coast Railway and Anr. vs. Mahadev Appa Rao and Ors. (supra) held that there was no precise statutory or other definition of the term “arbitrary”. The Court proceeded then to observe : “23. Arbitrariness in the making of an order by an authority can manifest itelf in different forms. vs. Mahadev Appa Rao and Ors. (supra) held that there was no precise statutory or other definition of the term “arbitrary”. The Court proceeded then to observe : “23. Arbitrariness in the making of an order by an authority can manifest itelf in different forms. Non-application of mind by the authority making the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or the record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hence legally unsustainable. 24. In the instant case the order passed by the competent authority does not state any reasons whatsoever for the cancellation of the typing test. It is nobody’s case that any such reasons were set out even in any contemporaneous record or file. In the absence of reasons in support of the order it is difficult to assume that the authority had properly applied its mind before passing the order cancelling the test.” 22. Now let us consider whether the principles enunciated by the Supreme Court in the aforesaid decisions are applicable to the present case. The Examination was scheduled to be held on 2nd December 2007 as per the advertisement, which was published on 12th October 2007 in the daily newspapers. The examination was postponed to 9th December 2007. Between 2nd December 2007 and 9th December 2007 announcements were made in the newspapers which had published the advertisement that those candidates who had not received the admit cards should collect them by 5th December 2007 from the State Examination Control Room. A Corrigendum was issued on 6th December 2007, which was published in the same newspapers indicating that the admit card could be collected from the Principal Agricultural Officer in the respective districts. On the 8th December 2007 the allocation of seats was completed through the second corrigendum issued in the same newspapers. 23. A Corrigendum was issued on 6th December 2007, which was published in the same newspapers indicating that the admit card could be collected from the Principal Agricultural Officer in the respective districts. On the 8th December 2007 the allocation of seats was completed through the second corrigendum issued in the same newspapers. 23. The notification issued on 18th January 2008 cancelling the examination reads as follows :- “No. – 215-Estab(Sectt.)/1(24) Dated Kolkata, the 18th January 2008 NOTIFICATION Department of Agriculture has conducted the examination for recruitment of the L.D.C. in the Agriculture Directorate in a time bound manner. The examination was held on 9th December 2007 in different sub – divisions of districts in West Bengal. Some candidates, it is learnt, could not sit for the examination for no fault of their own examination is hereby cancelled. The order is issued in the interest of public service. By Order of the Governor Sd/- (A.K. Samanta) Joint Secretary to the Govt. of West Bengal. Agriculture Department No. – 215-Estab(Sectt.)/1(24) Dated Kolkata, the 18th January 2008” This notification does not disclose any reason for cancelling the examination except that some candidates could not “sit for the examination for no fault of their own.” The affidavit-in-reply filed to Original Application No. 1001 of 2008 indicates that upon a preliminary inquiry made by the State 41.38% of 76,470 candidates could not appear for the examination for no fault of their own. Therefore, the examination was cancelled in wider public interest. However no record or material which induced the Government to cancel the examination was placed before the Tribunal at any point of time. Therefore, although the learned advocate for the State wanted to produce certain documents before us, we disallowed him from doing so as that record was not before the Tribunal. 24. In the affidavit-in–reply to Original Application No. 1001 of 2008 the State has pleaded that only 44,830 candidates could appear for the examination. It was further pleaded that 31,346 valid candidates could not appear or were otherwise debarred from appearing for the examination for reasons which were not attributable to them but because of lapses on the part of others; including the non-receipt of the admit cards. It has been further pleaded that a preliminary inquiry revealed that admit cards were received by some of the candidates after the examination was over. It has been further pleaded that a preliminary inquiry revealed that admit cards were received by some of the candidates after the examination was over. The Government thought it fit to review the entire situation in order to ensure transparency, keeping in mind the allegation of malpractices and “the broader interest of fairness and for ensuring that the principles of natural justice were observed.” It has further been contended that serious complaints were lodged against the procedure for conducting the examination by different persons and associations. On scrutiny, the Government found that there were in fact certain irregularities in conducting the examination resulting in prejudice to a bulk of prospective candidates. Significantly, not a single complaint which was allegedly received by the Government in respect of the conduct for the examination was annexed to the affidavit filed by the Government. Some documents have been annexed to the petition filed by the State. However, from the record it appears that these documents were not before the Tribunal when it decided the matters and hence we will not consider those documents. 25. It appears that the private respondents sought information under the Right to Information Act as to whether any complaints have been received by the Directorate of Agriculture for the conduct of the examination. In response, the private respondents were informed that till 29th May 2008, that is, when the application was answered, no complaint had been received by the Directorate. They were also informed that 339 admit cards had been returned to the Directorate. 26. A completely divergent stand has been adopted by the State in its affidavit filed on 4th March 2009 to Original Application No. 4523 of 2008. Significantly the reply in both the Original Applications has been affirmed by the same person, Subhendu Deb Chatterjee. The reply was filed on 4th March 2009 and the affiant has stated that there was no complaint whatsoever from any quarter regarding the conduct of the examination. It appears that State sought to file an affidavit of Ganesh Chandra Barman, which they served on the private respondent. However it was withheld and not filed before the Tribunal by the State. This affidavit has been taken on record in this Court pursuant to orders passed by this Court. Ganesh Chandra Barman in his affidavit which was filed in reply to the petitioners’ Original Application has denied the contents of the supplementary affidavit. However it was withheld and not filed before the Tribunal by the State. This affidavit has been taken on record in this Court pursuant to orders passed by this Court. Ganesh Chandra Barman in his affidavit which was filed in reply to the petitioners’ Original Application has denied the contents of the supplementary affidavit. He has in fact averred that there was no instance of the admit card being refused to any person, nor was there any complaint about the purported refusal of entry of persons into the examination hall. The deponent has denied any malpractices in the conduct of the examination. He has further stated that none of the examinees who received the admit cards had complained regarding the conduct of the examination. Thus we have statements on oath made on behalf of the Government which are diametrically opposed to each other. All the allegations and insinuations contained in the supplementary affidavit filed by the petitioners have been denied categorically by the State. Therefore, in our opinion it is difficult to accept the version of the State that the cancellation of the examination was on account of complaints received by the State from candidates who were denied entry into the examination hall because of the lack of admit cards. It is inexplicable that the affiant has contended in one affidavit that the examination was cancelled because there were malpractices and in another affidavit which was filed approximately eight months later in a different Original Application, the same affiant has averred that there was absolutely no material on record nor was there any complaint from any quarter regarding the nonreceipt of the admit cards. The information obtained by the private respondents under the Right to Information Act supports this averment. 27. It is true that approximately 31,346 candidates did not appear for the examination for the recruitment of L.D.C. However, an inference cannot be drawn that they did not appear only because the admit cards were not made available to them. We have noticed that there were several other examinations which were scheduled on 9th December 2007 when the examination for the post of Lower Division Clerks was held. Many of the candidates had simultaneously applied for other posts. We have noticed that there were several other examinations which were scheduled on 9th December 2007 when the examination for the post of Lower Division Clerks was held. Many of the candidates had simultaneously applied for other posts. There is no material on record to demonstrate that the only reason that such a large number of candidates did not appear for the examination for post of Lower Division Clerks was because they did not receive the admit cards. Had any candidate who was interested in appearing for the examination not received the admit card he or she would certainly have approached the authorities for the same. If there was no favourable response from the authorities they would not have hesitated the approach to Tribunal for the immediate redress of their grievance. In fact, the two petitioners who claimed they did not receive the admit cards have not placed any material on record to show that they complained to the authorities about the non-receipt of the admit cards. Nor is there any material to indicate that either of them had approached the authorities in consonance with the announcements or notices issued in the newspaper calling upon the candidates to approach the Principal, Agriculture Officer in the respective districts for the admit cards. The last announcement which was made on 8th December 2007 gave an option to those candidates who were not in receipt of the admit cards to obtain them from several centres across the State of West Bengal. They were also permitted to collect the duplicate admit cards from the concerned examination centres. In these circumstances we have no hesitation in concluding that the action of the State in cancelling the examination was completely arbitrary, whimsical and capricious. The order cannot be sustained as it is unreasonable and passed without any application of mind. 28. This order has been sought to be supported by the State and the Petitioners by the reasons mentioned in the affidavit-in-reply to the Original Application preferred by the private respondents. It is now well settled that affidavits cannot be used to fortify the need for passing an order subsequently. The reasons must be reflected in the order itself, whether it be an Administrative decision or a Statutory order. It is now well settled that affidavits cannot be used to fortify the need for passing an order subsequently. The reasons must be reflected in the order itself, whether it be an Administrative decision or a Statutory order. In Commissioner of Police vs Gordhandas Bhanji ( AIR 1952 SC 16 ) Bose J speaking for the bench observed as follows :- “Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.” 29. In the case of East Coast Railway and Anr. vs. Mahadev Appa Rao and Ors. (supra) the Supreme Court observed that an order of cancellation of an examination passed by a competent authority was not tenable as it was not preceded even by a prima facie satisfaction about the correctness of the allegations made by unsuccessful candidates, leave alone an inquiry into the same. The minimum expected of the authority was the proper application of the mind to the allegations and formulation and regarding of reasons in support of the view that the competent authority was taken. The Supreme Court observed that it was difficult to sustain an order which was neither based on an inquiry nor on a prima facie consideration and without due and proper application of mind to the relevant facts. The Court observed that there was no hard and fast rule regarding the sufficiency or otherwise of the material to support a decision taken by the competent authority. However the competent authority cannot act mechanically or on an impulse. 30. In the present case as we have stated earlier there was no material placed on record either before the Tribunal or before us which reveals that the order dated 18th January 2008 was based on any complaint received or founded on a prima facie inquiry made by the Government regarding malpractices or otherwise. The order merely states that “it is learnt” some candidates did not appear for the examination. The order merely states that “it is learnt” some candidates did not appear for the examination. If an order does not reveal the basis for issuing it in detail, reasons must be recorded by the authority contemporaneously which would be the causa causans for the order. In M.J. Sivani and Ors. vs. State of Karnataka and Ors. (supra) the Supreme Court observed that an Administrative Order need not contain detailed reasons like the order of a Court; the reasons could be reflected either in the order itself or a file maintained by the competent authority. It would then be discernible as to what compelled an administrative authority to pass an order as the reasons would be reflected from the contemporaneous record maintained by the authority. In Union of India and Ors. vs. E.G. Nambudiri (supra) the Court observed that whereas a statutory authority acting administratively is required to record its motivation for passing the order, it must record reasons where civil consequences would ensue. However an administrative order passed by an authority which has no statutory or implied duty to record the reasons or the grounds for its decision, would not be rendered illegal, merely because of the absence of reasons. The Court observed that although there was no necessity for giving reasons in view of the expanding law of judicial review it was desirable that administrative decisions which affect the right of an individual should reflect the reasons for the decision. When such a decision is challenged before any Court on the ground that it is arbitrary or mala fide it is always open to the authority concerned to place before the Court the reasons which may have persuaded it to pass the order. Such reasons must already exist on record and it is not permissible for the authority to support the order by reasons which are not contained in the record. 31. The observations in Gordhandas Bhanji (supra) have been reiterated in the case of Mohinder Singh Gill and Anr. vs. The Chief Election Commissioner, New Delhi and Ors. (supra). The Court has observed that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of an affidavit or otherwise. An order cannot be validated by additional grounds sought to be recorded later on. Mr. (supra). The Court has observed that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of an affidavit or otherwise. An order cannot be validated by additional grounds sought to be recorded later on. Mr. Banerjee, for the petitioners has tried to distinguish this trend of judgements of the Supreme Court by contending that the order passed by the Government in the present case on 18th January 2008 cancelling the examination was an administrative order and not a statutory order. According to him, therefore, the reasons in such an order need not be elaborate. 32. There can be no dispute that the order passed on 18th January 2008 is an administrative order and not a judicial order. However because of the expansion of the area of judicial review the reasons must either be reflected in the order itself or in any record which may be maintained contemporaneously by the authority. Unfortunately no such material was placed on record before the Tribunal. The affidavit filed in the Original Application preferred by the private respondents has sought to explain the necessity for passing the impugned order which is impermissible as held in Gordhandas Bhanji (supra). We have no manner of doubt, therefore, that the action of the state in cancelling the examination is whimsical, arbitrary and capricious. The Tribunal has not committed any error in setting aside the order of 18th January 2008. 33. It has been argued by Mr. Bandyopadhyay, that administrative decisions cannot be scrutinized by the Tribunal which exercises powers which are akin to Articles 226 & 227 of the Constitution of India. According to him the Tribunal has erred by questioning the administrative decision of the State to cancel the examination. This argument of Mr. Bandyopadhyay is fallacious. The proceeding before the Administrative Tribunal is an original proceeding and cannot be equated to proceedings under Article 226 & 227 of the Constitution of India. It is for this reason that orders of the Administrative Tribunal can be challenged before this Court. The Tribunal does not exercise supervisory jurisdiction over the power vested in the Government. It is always open for the Tribunal to consider the validity of an order by exercising the powers of judicial review. 34. It is for this reason that orders of the Administrative Tribunal can be challenged before this Court. The Tribunal does not exercise supervisory jurisdiction over the power vested in the Government. It is always open for the Tribunal to consider the validity of an order by exercising the powers of judicial review. 34. The next issue which arises for our consideration is whether it was necessary to cancel the entire examination. In Girjesh Shrivastava & Ors. vs. State of Madhya Pradesh & Ors. (supra) the selection was cancelled on the ground of the alleged participation of close relatives in the selection process. The Court observed that the entire selection process could not be vitiated and if there were some illegal beneficiaries from the selection process they should have been weeded out instead of striking down the entire selection process. Similarly, in Unionof India & Ors. vs. Rajesh P.U., Puthuvalnikathu & Anr. (supra) the Court has observed that the extreme and sunreasonable decision of cancelling the entire selection was wholly unwarranted and unnecessary in the given factual situation. 35. It has been argued rather strenuously by Mr. Bandyopadhyay and Mr. Majumder that the private respondents have no indefeasible right to be appointed. They cited the judgement of the Supreme Court in the case of Union of India and Ors. vs. Kali Dass Batish & Anr. (supra), wherein the Court reiterated its earlier decision in the case of Punjab State Electricity Board vs. Malkiat Singh (supra). It observed that no indefeasible right is created in an unsuccessful candidate to be appointed, merely because there are a number of vacancies. 36. The learned advocates appearing for the private respondents have drawn our attention to the prayers contained in Original Application No. 4523 of 2008 filed by the petitioners. This original application has been filed in July 2008, after the cancellation of the examination. Yet the prayers sought in the application are for the issuance of the admit card for appearing in the examination and for the production of the entire records relating to the case. Admittedly, no such records were produced before the Tribunal. The question of granting any relief to the petitioners in their Original Application thus did not arise before the Tribunal. The examination had already been held on 9th December and cancelled on 18th January 2008. Therefore there was no need to issue the admit cards for that examination. Admittedly, no such records were produced before the Tribunal. The question of granting any relief to the petitioners in their Original Application thus did not arise before the Tribunal. The examination had already been held on 9th December and cancelled on 18th January 2008. Therefore there was no need to issue the admit cards for that examination. The Tribunal has rightly dismissed their application. No relief can be granted in the circumstances of the case to the petitioners. However, it appears from the pleadings which were embellished by supplementary affidavits and the arguments before us that the oblique motive of the Petitioners in filing their application was to ensure that the order of the State, cancelling the examination was well-founded and fortified. It is impossible to believe that two persons would approach the Tribunal after the examination was held and later cancelled, to seek admit cards for that examination without their being some ulterior motive. It has been argued by Mr. Bandyopadhyay that the impugned order discloses that the Tribunal has not considered whether relief can be granted to the petitioners in their Original Application. Though the order does not expressly mention so, it is implicit in the dismissal of the application of the petitioners that the Tribunal did not consider it necessary to grant relief to the petitioners. Besides, we have considered this question and we are of the opinion that no such relief can be granted to the petitioners. The learned counsel for the petitioners and the state respondents were at pains to point out that an enquiry had been instituted by the Chief Secretary of the State pertaining to the missing examination records. They have relied on an affidavit filed by the Chief Secretary of the Government of West Bengal in a Writ Petition preferred before this Court by the State Government Employees Federation of West Bengal. This affidavit also contains averments that some employees of the Agriculture Directorate (Headquarters) had submitted complaints on 20th December 2007 regarding various Acts of nepotism indulged in by the authorities for the recruitment test of Lower Division Clerks of 9th December 2007. However, there is no allegation or averment or statement contained in this affidavit that any of the affected candidates who were to appear for the examination had submitted complaints to the authorities either regarding the non-receipt of the admit cards or the alleged malpractices in the recruitment process. However, there is no allegation or averment or statement contained in this affidavit that any of the affected candidates who were to appear for the examination had submitted complaints to the authorities either regarding the non-receipt of the admit cards or the alleged malpractices in the recruitment process. Mr. Majumder for the State had submitted that Ganesh Barman was not authorised to file any affidavit and therefore the affidavit on which the private respondents are relying is of no consequence. He however, submitted that the decision to cancel the examination was a policy decision which could not be questioned in the Court of law. The learned counsel vehemently submitted that no documents could be produced before the Tribunal because of the malpractices indulged in by some persons who had assisted the private respondents in passing the examination. 37. We are not convinced with these arguments of Mr. Majumder that the cancellation of the examination was required because of the missing documents or the malpractices indulged in by “somebody”. There is no averment in any of the affidavits that it was the private respondents who were responsible for any of the alleged malpractices in the conduct of the examination. 38. The private respondents have sought the revocation or quashing of the order cancelling the examination. They have not in their way sought their appointment. We have already observed that having one’s name on the merit list does not create an indefeasible right in a person to be appointed. The fact that Lower Division Clerks are recruited on the basis of a written examination and without any other interview is not disputed. The State in its affidavits has categorically stated that the list published on its web-site was the merit list or result list and not a select list. Be that as it may, the fact that the petitioners had passed the examination and were entitled to be considered for appointment as Lower Division Clerks cannot be disputed. Thus they certainly had the locus to file the original application before the Tribunal. 39. We have scrutinised the judgement of the Administrative Tribunal and we find that there is no error committed by the Tribunal in setting aside the decision of the authorities to cancel the examination held on 9th December 2007. Thus they certainly had the locus to file the original application before the Tribunal. 39. We have scrutinised the judgement of the Administrative Tribunal and we find that there is no error committed by the Tribunal in setting aside the decision of the authorities to cancel the examination held on 9th December 2007. In exercise of our writ jurisdiction we have only to consider whether the Tribunal has taken a possible view which is based on the material on record and whether that view is perverse. We find that the Tribunal has neither committed any error of law apparent on the face of the record nor any perversity while allowing Original Application No. 1001 of 2008. 40. The petitions, therefore, fail and are dismissed with costs quantified at `. 2,000/-payable to each of the private respondents.