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2023 DIGILAW 393 (UTT)

Jagpal Singh v. State of Uttarakhand

2023-07-06

RAVINDRA MAITHANI

body2023
JUDGMENT : RAVINDRA MAITHANI, J. 1. Since common question of facts and law are involved in all these petitions, they are being decided by this common judgment. 2. The challenge in all these petitions is made to the Press Communiqué issued by the respondent no. 4, Uttarakhand Subordinate Service Selection Commission (“the Commission”) by which, the graduate level examination conducted on 04/05.12.2021 by the Commission has been cancelled and a decision has been taken to re-conduct the examination. FACTS 3. Facts in brief are as follows: The Commission published an advertisement on 06.11.2020 for selection on various posts under Graduate Level Examination. The petitioners responded to the advertisement. The examination was conducted on 04/05.12.2021. Its result was declared on 07.04.2022. All the petitioners find place in the provisional merit list. The Commission did not recommend the names of the petitioners for appointment. Therefore, some of the candidates did file a Writ Petition (S/S) No. 1304 of 2022, Ankur Kumar and Another vs. State of Uttarakhand and Others (“the first petition”), which was decided on 18.07.2022. On that date, on behalf of the Commission, it was submitted that a large number of complaints had been received, regarding irregularities in the selection process, particularly, the examination held on 04.12.2021. Therefore, an inquiry was constituted. In view of it, the Court on 18.07.2022, disposed of the first petition with the direction that the inquiry may be concluded as early as possible. In the meanwhile, an FIR No. 289 of 2022, under Section 420 IPC, Police Station Raipur, District Dehradun was lodged with the allegations that the Commission had received complaints alongwith screen shots of WhatsApp messages wherein answers to certain questions were discussed. 4. The Secretary of the Commission also made a communication to the Secretary, Personnel and Vigilance for considering the prospect of cancellation of examination and conducting it afresh, in view of the role of RMS Techno Solution, who was entrusted with the task of printing of question papers. Subsequently, the Commission cancelled the examination conducted on 4/5.12.2021. It is the case of the petitioners that the decision of the Commission in cancelling the result and entire examination conducted on 04/05.12.2021 is wholly arbitrary and erroneous, when selection process was at the verge of its completion. 5. The respondent no. 4, Commission did file its counter affidavit. It is the case of the respondent no. It is the case of the petitioners that the decision of the Commission in cancelling the result and entire examination conducted on 04/05.12.2021 is wholly arbitrary and erroneous, when selection process was at the verge of its completion. 5. The respondent no. 4, Commission did file its counter affidavit. It is the case of the respondent no. 4, the Commission that several complaints were received with regard to the irregularities committed in the written examination, as also paper leak and mass cheating; an inquiry was conducted and prima facie, the Commission found substance in the complaints. Therefore, the Special Task Force (“the STF”) was requested to conduct an inquiry and FIR an was also lodged. It is further the case of the Commission that after investigation, it was found that RMS Techno Solution was involved in the irregularities and misconduct. Initially, the STF report suggested that 114 persons were directly involved in such leakage of question papers. Therefore, the Commission considering the future and quality of examination; debarred RMS Techno Solution, so that such irregularities do not recur. It is the case of the Commission that the decision to cancel the examination is based on the material available with the Commission. 6. The State, despite an opportunity did not file its counter affidavit. In fact, on 03.07.2023, when questioned, it was responded that the concerned authorities are not responding to the learned State counsel. This Court in its order dated 03.07.2023 noted this submission as made on behalf of the State, as hereunder: “These matters were heard on 15.06.2023. On that day, the respondent nos. 1, 2 & 3, who are State Authorities were directed to file the counter affidavit. It has not been filed. Learned counsel appearing for the State would submit that information was sent, but no reply has been received as yet. This is a very serious issue. An examination conducted by the Commission has been cancelled on the ground of use of unfair means. It has been the case that an FIR was lodged and various persons have been arrested. Does not the State owe some responsibility in this matter? Should not the State assist in this matter? The attitude of the officer of the State cannot be appreciated.” 7. The Court proceeded to hear the matter further, in view of the fact that re-examination is scheduled to be held on 09.07.2023. 8. Does not the State owe some responsibility in this matter? Should not the State assist in this matter? The attitude of the officer of the State cannot be appreciated.” 7. The Court proceeded to hear the matter further, in view of the fact that re-examination is scheduled to be held on 09.07.2023. 8. Heard learned counsel for the parties and perused the record. ARGUMENTS THE PETITIONERS 9. Mr. Vijay Bhatt, learned counsel appearing for the petitioners in Writ Petition (S/S) No. 82 of 2023, Jagpal Singh and Others vs. State of Uttarakhand and Others, would submit that the decision of the Commission is bad in the eyes of law and/ or on facts. He would raise the following points in his submission: (i) It is not the case of paper leak or mass cheating. (ii) The modus operandi of the wrong doers was that the papers were given to chosen candidates, who were ready to purchase it for consideration. (iii) Those candidates were made to learn answers at some isolated places, where they were not allowed to take any devices, so as to avoid further leakage of question papers. (iv) The investigation and the charge sheets establish that the modus operandi was consideration for making question papers available to the candidates at an isolated place. (v) The STF in the month of February, 2023 could identify only 114 persons and subsequently, the Commission by its communication dated 12.04.2023, identified only 115 candidates, who were debarred from appearing in future examinations to be conducted by the Commission. (vi) Since the STF had identified the wrong doers and the Commission had also identified the candidates, who used unfair means in the examination, it is well established that those who used unfair means were segregated. Therefore, cancellation of the examination, as a whole, cannot be sustained. (vii) It is a case, in which segregation could have been done. In fact, it has been argued that segregation has been done by the STF and by the Commission also. (viii) The petitioners are genuine candidates, who worked hard to appear in the examination. They did not use unfair means. They are selected candidates. Their hope would be shattered if examination is cancelled. Their future prospects would be adversely affected. Therefore, interest of such candidates should also be protected in the larger interest. (viii) The petitioners are genuine candidates, who worked hard to appear in the examination. They did not use unfair means. They are selected candidates. Their hope would be shattered if examination is cancelled. Their future prospects would be adversely affected. Therefore, interest of such candidates should also be protected in the larger interest. (ix) The decision of the Commission for cancelling the examination is unreasonable and arbitrary because the decision is based on the report of the STF and the STF has identified the wrong doers, beyond that the Commission could not have travelled, by cancelling the examination. (x) The STF was initially involved at the behest of the Commission. In case, the STF was still investigating the case, there was no hurry for the Commission to notify date of reexamination. The Commission could have well waited for the final conclusion drawn by the STF and thereafter, could have taken a decision. 10. In support of his contentions, learned counsel has placed reliance in the judgment, in the case of Sachin Kumar and Others vs. Delhi Subordinate Service Selection Board (DSSSB) and Others, (2021) 4 SCC 631 . 11. In the case of Sachin (supra), in one of such cases, the Hon’ble Supreme Court, inter alia, observed that “where the recruitment to public employment stands vitiated as a consequence of systemic fraud or irregularities, the entire process becomes illegitimate. On the other hand, where it is possible to segregate persons who have indulged in malpractices and to penalise them for their wrongdoing, it would be unfair to impose the burden of their wrongdoing on those who are free from taint. To treat the innocent and the wrongdoers equally by subjecting the former to the consequence of the cancellation of the entire process would be contrary to Article 14 because unequals would then be treated equally. The requirement that a public body must act in fair and reasonable terms animates the entire process of selection. The decisions of the recruiting body are hence subject to judicial control subject to the settled principle that the recruiting authority must have a measure of discretion to take decisions in accordance with law which are best suited to preserve the sanctity of the process.........” 12. Mr. The decisions of the recruiting body are hence subject to judicial control subject to the settled principle that the recruiting authority must have a measure of discretion to take decisions in accordance with law which are best suited to preserve the sanctity of the process.........” 12. Mr. A.M. Saklani, learned counsel appearing in Writ Petition (S/S) No. 284 of 2023, Writ Petition (S/S) No. 288 of 2023, Writ Petition (S/S) No. 289 of 2023, Writ Petition (S/S) No. 305 of 2023 and Writ Petition (S/S) No. 306 of 2023 would adopt the arguments, as advanced by Mr. Vijay Bhatt, Advocate. Learned counsel would also submit that all the petitioners, in these petitions, were identified by the STF and by the Commission, as the persons, who committed irregularities and used unfair means in the examination and they are in the list of such candidates, as given by the STF. They all have also been debarred by the Commission for appearing in future examination. But, learned counsel would submit that there is no evidence or material against these petitioners to suggest that they have had ever used any unfair means in the examination. 13. Mr. Avtar Singh Rawat, learned Senior Counsel appearing for the petitioner in WPSS No. 650 of 2023 also adopts the arguments, as advanced by Mr. Vijay Bhatt, Advocate. Learned Senior Counsel would also raise the following points: (i) Based on some screen shots some doubts were created. It is the Commission which involved the STF initially. (ii) The modus operandi in the entire episode as per the STF is restricted to a few identified persons. It is argued that those wrong doers were identified by the STF. (iii) As per the STF’s investigation, such irregularities in the examination were being done since 2015. (iv) The STF identified 41 such agents, who were in search of prospective candidates, those who could purchase the question papers for consideration. (v) One Abhishek Verma from RMS Techno Solution would take screen shots of the question papers and thereafter, it was released to other agents and finally the question papers were made available to the aspiring candidates for consideration. (vi) The aspiring candidates were taken to isolated places to memorise the question papers without the help of any electronic device, so as to avoid any further leakage of the question papers. (vii) The wrong doers were distinctly identified by the STF. (vi) The aspiring candidates were taken to isolated places to memorise the question papers without the help of any electronic device, so as to avoid any further leakage of the question papers. (vii) The wrong doers were distinctly identified by the STF. The segregation was done. (viii) STF did file a charge sheet with 58 persons and another charge sheet with 38 persons. (ix) The petitioners are selected candidates. In case of cancellation of their examination, the equality of opportunity in public employment, as envisaged under Article 16 of the Constitution of India would be frustrated. 14. Learned Senior Counsel would submit that the best course would be that the STF be directed to conduct and conclude the investigation within a time frame and based on the findings of the investigation, the Commission may be in a position to take a better decision and till such decision is taken, re-examination may be postponed. Learned Senior Counsel would submit that the Commission has adopted a procedure. They should take the procedure to its logical end before taking any decision. THE COMMISSION 15. Mr. Shailendra Nauriyal, learned counsel for the Commission would submit that the Commission was not able to segregate the wrong doers in the examination. He would raise the following points in his submissions: (i) The decision to cancel the examination is a conscious decision taken by the Commission after evaluating every possibility and keeping in view the larger public interest. (ii) Not only complaints of the irregularities were noticed, but the Commission has also found the OMR sheets, which were viral on social media with the answers on it and the order cancelling the examination records this fact. (iii) The FIR in the matter has been lodged. There were several candidates, whose names and addresses could not be verified. Therefore, they could not be contacted. (iv) It has also been surfaced during investigation by the STF that some wrong doers did give question papers to their wives and sisters in law. Thereafter, what happened to those question papers, it is not known. It might have gone to some other hands with further leakage of the question papers. (v) The Commission did debar 115 candidates from appearing in future examinations. But, the investigation by the STF is separate and is still continuing. (vi) Nine charge sheets have already been filed and investigation is still on. 16. Mr. It might have gone to some other hands with further leakage of the question papers. (v) The Commission did debar 115 candidates from appearing in future examinations. But, the investigation by the STF is separate and is still continuing. (vi) Nine charge sheets have already been filed and investigation is still on. 16. Mr. C.K. Sharma, learned counsel appearing for the Commission would also submit that the decision to cancel the examination has been taken in the larger public interest. He would submit that, in fact, one of the candidates, Mahavir, during investigation has revealed that he was made to memorise the question papers. He took the screen shot of it and sent it to his uncle, who was also appearing in the examination. It is argued that his uncle might have circulated the question papers further. The possibility may not be ruled out. Learned counsel tendered the statement of Mahavir recorded during investigation for the perusal of the Court. It is taken on record. THE STATE 17. Mr. Narain Dutt, learned State counsel would submit that it is a case of malpractice, irregularity and corruption. In it, huge amount of money was transferred. He would raise the following points in his submission: (i) The STF report reveals that the amount was paid for question papers. (ii) It is not possible to segregate the wrong doers from those, who are genuine candidates. (iii) The decision is based on the material that was before the authority concerned. (iv) The STF report cannot be ignored in such a serious matter. (v) The decision has been taken in the larger public interest to maintain the purity of examination. 18. In support of his contention, learned State counsel has placed reliance on the principles of law, as laid down in the case of State of Tamil Nadu and Another vs. A. Kalaimani and Others, 2019 SCC Online SC 1002 and Chairman, All India Railway Recruitment Board and Another vs. K. Shyam Kumar and Others, (2010) 6 SCC 614 . 19. In the case of A. Kalaimani (supra), the Hon’ble Supreme Court has followed the principles of law, as laid down in the case of Inderpreet Singh Kahlon and Others vs. State of Punjab and Others, (2006) 11 SCC 356 and Gohil Vishvaraj Hanubhai and Others vs. State of Gujarat and Others, (2017) 13 SCC 621 . 19. In the case of A. Kalaimani (supra), the Hon’ble Supreme Court has followed the principles of law, as laid down in the case of Inderpreet Singh Kahlon and Others vs. State of Punjab and Others, (2006) 11 SCC 356 and Gohil Vishvaraj Hanubhai and Others vs. State of Gujarat and Others, (2017) 13 SCC 621 . In the case of A. Kalaimani (supra), the Hon’ble Supreme Court in Para 17 observed as hereunder: “17. May be, the candidates who had a chance of being selected and appointed as Lecturers in the Government Polytechnic Colleges on the basis of the results of the written examination would be inconvenienced due to another examination being conducted but a serious doubt entertained by the Board about the magnitude of the manipulation in the examination has to be given due weightage.” (Emphasis supplied) 20. In the case of K. Shyam Kumar (supra), the decision of cancellation of examination had been put to challenge before the Hon’ble Supreme Court. The Hon’ble Supreme Court in this judgment, discussed the law on judicial review and took note of the judgments in the case of Associated Provincial Picture Houses Ltd. vs. Wednesbury Corp. (1948) 1 K.B. 223, as also the principles of law, as laid down in the case of R. (Daly) vs. Secy. of State for the Home Department, (2001) 2 AC 532. This judgment has further explained the Wednesbury’s unreasonableness and proportionality test. In Paras 36 and 37, the Hon’ble Supreme Court observed as hereunder: “36. Associated Provincial Picture Houses Ltd. vs. Wednesbury Corporation, (1948) 1 KB 223 : (1947) 2 All ER 680 (CA) applies to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person who had applied his mind to the issue to be decided could have arrived at it. Proportionality as a legal test is capable of being more precise and fastidious than a reasonableness test as well as requiring a more intrusive review of a decision made by a public authority which requires the courts to “assess the balance or equation” struck by the decision-maker. Proportionality test in some jurisdictions is also described as the “least injurious means” or “minimal impairment” test so as to safeguard the fundamental rights of citizens and to ensure a fair balance between individual rights and public interest. Proportionality test in some jurisdictions is also described as the “least injurious means” or “minimal impairment” test so as to safeguard the fundamental rights of citizens and to ensure a fair balance between individual rights and public interest. Suffice it to say that there has been an overlapping of all these tests in its content and structure, it is difficult to compartmentalise or lay down a straitjacket formula and to say that Associated Provincial Picture Houses Ltd. vs. Wednesbury Corporation, (1948) 1 KB 223 : (1947) 2 All ER 680 (CA) has met with its death knell is too tall a statement. Let us, however, recognise the fact that the current trend seems to favour proportionality test but Associated Provincial Picture Houses Ltd. vs. Wednesbury Corporation, (1948) 1 KB 223 : (1947) 2 All ER 680 (CA) has not met with its judicial burial and a State burial, with full honours is surely not to happen in the near future. 37. Proportionality requires the court to judge whether action taken was really needed as well as whether it was within the range of courses of action which could reasonably be followed. Proportionality is more concerned with the aims and intention of the decision-maker and whether the decision-maker has achieved more or less the correct balance or equilibrium. The court entrusted with the task of judicial review has to examine whether decision taken by the authority is proportionate i.e. well balanced and harmonious, to this extent the court may indulge in a merit review and if the court finds that the decision is proportionate, it seldom interferes with the decision taken and if it finds that the decision is disproportionate i.e. if the court feels that it is not well balanced or harmonious and does not stand to reason it may tend to interfere.” (Emphasis supplied) Mr. Lalit Miglani, learned A.G.A. 21. In the instant matter, the State did not choose to file counter affidavit. In fact, it is denial of assistance to this Court. The Court requested Mr. Lalit Miglani, learned A.G.A. to assist the Court in terms of the investigation that is being carried out by the STF in the matter. Under instructions, he would place for the perusal of the Court nine charge sheets, which have been filed in the matter. They are taken on record. He would submit that the investigation is still underway in the matter. Under instructions, he would place for the perusal of the Court nine charge sheets, which have been filed in the matter. They are taken on record. He would submit that the investigation is still underway in the matter. DISCUSSION AND CONCLUSION 22. What is essentially challenged is a policy decision; an administrative decision for cancellation of examination. The jurisdiction of Court in such matters is not as wide as in the shape of an appeal to find out correctness of the judgment. The correctness may be examined on certain parameters alone. In fact, the Court in such matters is more concerned in the manner in which these decisions have been taken. The ground, upon which, an administrative action is taken is subject to control of judicial review. The Hon’ble Supreme Court in the case of Tata Cellular vs. Union of India, (1994) 6 SCC 651 has summed up these principles as follows: “73. Observance of judicial restraint is currently the mood in England. The judicial power of review is exercised to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the other covers the scope of the court's ability to quash an administrative decision on its merits. These restraints bear the hallmarks of judicial control over administrative action. 74. Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself. 75. In Chief Constable of the North Wales Police vs. Evans, (1982) 3 All ER 141, Lord Brightman said: “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. *** *** *** Judicial review is concerned, not with the decision, but with the decision-making process. 75. In Chief Constable of the North Wales Police vs. Evans, (1982) 3 All ER 141, Lord Brightman said: “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. *** *** *** 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.” In the same case Lord Hailsham commented on the purpose of the remedy by way of judicial review under RSC, Order 53 in the following terms: “This remedy, vastly increased in extent, and rendered, over a long period in recent years, of infinitely more convenient access than that provided by the old prerogative writs and actions for a declaration, is intended to protect the individual against the abuse of power by a wide range of authorities, judicial, quasi-judicial and, as would originally have been thought when I first practised at the Bar, administrative. 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. It is intended to see that the relevant authorities use their powers in a proper manner (p. 1160).” In R. vs. Panel on Take-Overs and Mergers, ex p Datafin plc (1987) 1 All ER 564, Sir John Donaldson, M.R. commented: “An application for judicial review is not an appeal.” In Lonrho plc vs. Secretary of State for Trade and Industry, (1989) 2 All ER 609, Lord Keith said: “Judicial review is a protection and not a weapon.” It is thus different from an appeal. When hearing an appeal the Court is concerned with the merits of the decision under appeal. In Amin vs. Entry Clearance Officer, (1983) 2 All ER 864, Lord Fraser observed that: “Judicial review is concerned not with the merits of a decision but with the manner in which the decision was made.....Judicial review is entirely different from an ordinary appeal. When hearing an appeal the Court is concerned with the merits of the decision under appeal. In Amin vs. Entry Clearance Officer, (1983) 2 All ER 864, Lord Fraser observed that: “Judicial review is concerned not with the merits of a decision but with the manner in which the decision was made.....Judicial review is entirely different from an ordinary appeal. It is made effective by the court quashing the 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.” 76. In R. vs. Panel on Take-Overs and Mergers, ex p in Guinness plc (1990) 1 QB 146 : (1989) 1 All ER 509, Lord Donaldson, M.R. referred to the judicial review jurisdiction as being supervisory or ‘longstop’ jurisdiction. Unless that restriction on the power of the court is observed, the court will, under the guise of preventing the abuse of power, be itself guilty of usurping power. 77. The duty of the court is to confine itself to the question of legality. Its concern should be: 1. Whether a decision-making authority exceeded its powers? 2. Committed an error of law. 3. Committed a breach of the rules of natural justice. 4. Reached a decision which no reasonable tribunal would have reached. 5. Abused its powers. Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under: (i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. (ii) Irrationality, namely, Wednesbury unreasonableness. (iii) Procedural impropriety. The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. vs. Secretary of State for the Home Department, ex Brind, (1991) 1 AC 696, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. vs. Secretary of State for the Home Department, ex Brind, (1991) 1 AC 696, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should “consider whether something has gone wrong of a nature and degree which requires its intervention.” 23. In a similar case like the instant one, wherein the examination has been cancelled. The extent of judicial review has also been taken up by the Hon’ble Supreme Court in the case of Gohil (supra). 24. In the case of Gohil (supra) also, an examination was conducted for recruitment to the posts of Revenue Talati. Initially an FIR was filed against two persons that they had collected money from some of the candidates for assuring their appointments. Subsequently, large numbers of OMR sheets with special marking was noticed. The police accordingly was informed and thereafter, number of complaints were further received in the matter. In view of it, the examination was cancelled. It was put to challenge. In such matters, what would be the extent of scrutiny has been examined by the Hon’ble Supreme Court, in Para 14 as follows: “14. Two questions need to be examined: 14.1. (i) What are the principles which govern the jurisdiction of the courts which exercise the power of judicial review of administrative action in the context of a situation like the one presented by the facts of these appeals? 14.2. (ii) Whether those legal principles are strictly followed by the respondents while taking the impugned decision? 25. Further, from Para 15 onwards, the Hon’ble Supreme Court discussed the basic principles governing the judicial review of administrative actions. The Hon’ble Supreme Court observed as follows: “15. The basic principles governing the judicial review of administrative action are too well settled. Two judgments which are frequently quoted in this regard are Associated Provincial Picture Houses Ltd. vs. Wednesbury Corporation, (1948) 1 KB 223 (CA) and Council of Civil Service Unions vs. Minister for the Civil Service, 1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL). 16. Two judgments which are frequently quoted in this regard are Associated Provincial Picture Houses Ltd. vs. Wednesbury Corporation, (1948) 1 KB 223 (CA) and Council of Civil Service Unions vs. Minister for the Civil Service, 1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL). 16. Lord Diplock in his celebrated opinion in Council of Civil Service Unions vs. Minister for the Civil Service, 1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL) summarised the principles as follows: (AC p. 410 D-H & 411 A-B) “.......Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality”, the second “irrationality” and the third “procedural impropriety.” That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice. By “illegality”, as a ground for judicial review, I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the Judges, by whom the judicial power of the State is exercisable. By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness [Associated Provincial Picture Houses Ltd. vs. Wednesbury Corporation, (1948) 1 KB 223 (CA)]......” It can be seen from the above extract, Lord Diplock identified three heads under which judicial review is undertaken i.e. illegality, irrationality and procedural impropriety. He also recognised the possibility of new heads such as “proportionality” being identified in future. He explained the concepts of the three already identified heads. He declared that the head “irrationality” is synonymous with “Wednesbury unreasonableness.” 26. He also recognised the possibility of new heads such as “proportionality” being identified in future. He explained the concepts of the three already identified heads. He declared that the head “irrationality” is synonymous with “Wednesbury unreasonableness.” 26. Undoubtedly, in the case like the instant one, on the one hand, there may be genuine candidates who are not involved in any irregularity or unfair practice while writing the examination. For such candidates, if examination is cancelled, it would be in a way of penalising them for no fault of theirs. But, at the same time, there is a larger public interest involved. If some of the candidates secure selection by using unfair means, it definitely denies appointment to such aspiring candidates, who did not use any unfair means. 27. The purity of public examination gives assurance to lakhs of candidates if not millions, to prepare for such examinations, to appear in such examination with the hope that it is only their hard work and sincerity which could yield any result, without any stream polluting such examination. 28. It has been suggested by Mr. A.S. Rawat, learned Senior Counsel that the STF may be directed to conclude its investigation, and based on its conclusion, the Commission may then be required to take a decision and till such decision is taken, re-examination may be postponed. 29. In the case of Gohil (supra) such a situation has been answered by the Hon’ble Supreme Court. In Para 30, the Hon’ble Supreme Court observed as hereunder: “30. Identifying all the candidates who are guilty of malpractice either by criminal prosecution or even by an administrative enquiry is certainly a time-consuming process. If it were to be the requirement of law that such identification of the wrongdoers is a must and only the identified wrongdoers be eliminated from the selection process, and until such identification is completed the process cannot be carried on, it would not only result in a great inconvenience to the administration, but also result in a loss of time even to the innocent candidates. On the other hand, by virtue of the impugned action, the innocent candidates (for that matter all the candidates including the wrongdoers) still get an opportunity of participating in the fresh examination process to be conducted by the State. On the other hand, by virtue of the impugned action, the innocent candidates (for that matter all the candidates including the wrongdoers) still get an opportunity of participating in the fresh examination process to be conducted by the State. The only legal disadvantage if at all is that some of them might have crossed the upper age-limit for appearing in the fresh recruitment process. That aspect of the matter is taken care of by the State. Therefore, it cannot be said that the impugned action is vitiated by lack of nexus with the object sought to be achieved by the State, by herding all the candidates at the examination together.” 30. The cancellation of an examination has wide consequences. A decision is taken by the authority conducing examination. As stated, the correctness of said decision, as such, may not be an issue, but the rationality, reasonableness legality, proportionality and procedural propriety are some yardsticks, on which such decision is to be examined. 31. In the case of Hanuman Prasad and Others vs. Union of India and Another, (1996) 10 SCC 742 , the Hon’ble Supreme Court in one such matter, where examination for Ticket Collectors were cancelled observed, “the CBI has submitted its preliminary report which indicated that the malpractices have been committed in writing the examination. They need not await the final report which would be to take further action against erring officers. Therefore, it is a case where the authorities have taken the decision on the basis of the report submitted by the investigating agency, containing proof in support of the allegations of malpractice committed in writing the examination. It cannot, therefore, be said that the order of cancellation does not contain any reasons.” 32. In the case of B. Ramanjini and Others vs. State of A.P. and Others, (2002) 5 SCC 533 , the Hon’ble Supreme Court cautioned the Courts for not for taking actions lightly and interfering in such matters. In Para 8 of the judgment, the Hon’ble Supreme Court observed as follows: “8. Further, even if it was not a case of mass copying or leakage of question papers or such other circumstance, it is clear that in the conduct of the examination, a fair procedure has to be adopted. Fair procedure would mean that the candidates taking part in the examination must be capable of competing with each other by fair means. Further, even if it was not a case of mass copying or leakage of question papers or such other circumstance, it is clear that in the conduct of the examination, a fair procedure has to be adopted. Fair procedure would mean that the candidates taking part in the examination must be capable of competing with each other by fair means. One cannot have an advantage either by copying or by having a foreknowledge of the question paper or otherwise. In such matters wide latitude should be shown to the Government and the courts should not unduly interfere with the action taken by the Government which is in possession of the necessary information and takes action upon the same. The courts ought not to take the action lightly and interfere with the same particularly when there was some material for the Government to act one way or the other.” (Emphasis supplied) 33. Before analysing further, it would be apt to see as to what the case is. In the FIR filed in the case, the first charge sheet which was submitted records that the question papers were to be printed by the RMS Techno Solution. The employees of the RMS Techno Solution were involved in the process. Two persons, Jaiveer Das and Abhishek Verma, according to the first charge-sheet, had taken photographs of the question papers on their mobile phones and forwarded it through Instagram. Thereafter, they reproduced the question papers in their hand-writing. In the first charge-sheet the chronology is as follows: (i) Abhishek Verma and Jaiveer Das had taken photographs of the question papers from the printing press in their mobile phones. (ii) These question papers were forwarded through Instagram. (iii) Abhishek Verma and Jaiveer Das would write those question papers in their own hands and thereafter, the question papers were forwarded to Manoj Joshi, Deepak Chauhan, Bhawesh Jaguri and Deepak Chauwan. Bhawesh Jaguri had memorized the answer of these question papers and had memorise the same to six candidates at the house of one of their relatives Geeta Ram Penuli and they collected Rs.45 Lakhs for the aspiring candidates. (iv) Manoj Joshi with the help of Sanjay Rana and another Manoj Joshi and Himanshu Kandpal would again give these question papers to some other persons namely, Shoorveer, Kulveer, Gaurav Negi, Gaurav Chauhan, Surya Pratap, and Vinod Joshi. (iv) Manoj Joshi with the help of Sanjay Rana and another Manoj Joshi and Himanshu Kandpal would again give these question papers to some other persons namely, Shoorveer, Kulveer, Gaurav Negi, Gaurav Chauhan, Surya Pratap, and Vinod Joshi. They also took a huge amount of money from the candidates in order to memorize the answers. The first charge-sheet was submitted against 18 persons. Similar is case with the other charge-sheet. 34. A reference to a third charge-sheet may be made to understand the spectrum of the activities of the wrongdoers. The third charge-sheet records that the owner of RMS Techno Solution, Rajesh Chauhan, got the answer papers memorized to the candidates in Vedanta Resorts and Alpine Resorts in Danachuli Band within District Nainital. Some answers were memorised at Raj Nagar Extension at Ghaziabad. Raj Extension Gulmohar Garden Flat, some in Haldwani and some in Bhimtal and some in Bijnor. Uptill now, nine charge sheets have been submitted against some of the petitioners and others. They are as follow: S. No. Charge Sheet No. Names of the charge sheeted persons 1. 01 Abhishek Verma, Jaijeet Das, Manoj Joshi, PRD, Sanjay Rana, Manoj Joshi, Clerk, Himanshu Kandpal, Mahendra Chauhan, Gaurav Negi, Gaurav Chauhan, Suryapratap, Kulveer, Shoorveer, Tushar Chauhan, Ambrish Kumar, Deepak Sharma, Deepak Chauhan, Vinod Joshi and Bhavesh Jaguri. 2. 02 Kendrapal, Hakam Singh, Chandan Singh Manral, Jagdish Goswami, Lalit Raj Sharma, Rajveer Singh, Tanuj Sharma, Ankit @ Bobby Ramola, Vipin Bihari and Dinesh Chandra Joshi. 3. 03. Sanjeev Kumar Chauhan, Balwant Rautela, Feroz Haidar, Sampan Kumar Rao, Shashi Kant, Sandeep Kumar Sharma, Amit Kumar Saxena, Sanjeev Kumar Chauhan, Ajeet Kumar Chauhan @ Bablu and Vikas Kumar Chauhan. 4. 04 Sayyed Sadiq Musa and Yogeshwar Rao. 5. 05 Vipin Bihari, Abhishek Verma, Jaijeet Das, Sanjay Rana, Dinesh Chandra Joshi, Ankit @ Bobby Ramola, Manoj Joshi, PRD, Tanuj Sharma, Manoj Joshi, Clerk, Himanshu Kandpal, Mahendra Chauhan, Gaurav Negi, Gaurav Chauhan, Suryapratap, Kulveer Singh @ Kallu, Shoorveer, Tushar Chauhan, Ambrish Kumar, Deepak Sharma, Deepak Chauhan, Vinod Joshi, Bhavesh Jaguri, Kendrapal, Hakam Singh, Chandan Singh Manral, Jagdish Goswami, Lalit Raj Sharma and Rajveer Singh. 6 06 Dinesh Chandra Joshi. 7. 07 Yogendra @ Banti. 8. 08 Manoj Kumar. 9. 09 Rupendra @ Rupesh Jaiswal. 35. It is submitted by the learned A.G.A. that the investigation is still underway. 36. In fact, the order dated 30.12.2022 which was recorded by Secretary to Commission Mr. 6 06 Dinesh Chandra Joshi. 7. 07 Yogendra @ Banti. 8. 08 Manoj Kumar. 9. 09 Rupendra @ Rupesh Jaiswal. 35. It is submitted by the learned A.G.A. that the investigation is still underway. 36. In fact, the order dated 30.12.2022 which was recorded by Secretary to Commission Mr. Surendra Singh Rawat, by which the examination has been cancelled, records that when the news of unfair means in the examination came to surface, three handwritten OMR Sheets were found circulating on the social media. This order also records that about 70-80 candidates could not be contacted as their addresses could not be verified. The question is can it be said that the decision is either illegal or irrational or proportionally not correct? or can it be said that the decision to cancel the examination is unreasonable. 37. There is gross material to suggest that question papers were leaked prior to examination. What is being argued is that it was leaked to a select few. A statement of one of the candidates Mahavir has been placed for perusal of the Court by the learned counsel for the Commission. This witness tells that while memorising the question papers, he took photographs of it and sent it to his uncle, who was also appearing in the examination. Can there not be some other similar instances? Can there not be a possibility that some of the candidates might have memorised the questions papers and passed them on to some other candidates? Can’t it happen that some other candidates might have used some other devices to take a photo of question papers, which were given to them for memorising by those so called agents and “further sold it for consideration”? 38. It has been stated on behalf of the Commission that some of the agents have given question papers to their wives and relatives. What was the guarantee that those relatives and wives had not further sold those question papers to some other persons? How did those OMR sheets circulate in the social media? 39. The order cancelling the examination records as to what was weighed by the Commission while cancelling the entire examination. What was the guarantee that those relatives and wives had not further sold those question papers to some other persons? How did those OMR sheets circulate in the social media? 39. The order cancelling the examination records as to what was weighed by the Commission while cancelling the entire examination. In such scenario, when the so called agents were widespread, different locations were used, unknown persons were approached, and they also, while memorising, took photographs of the question papers and circulated to others, it can very well be said that it is a case of widespread, mass cheating and leakage of paper. 40. Instant is the case of paper leakage much in advance of the examination. The leaked paper was not in one hand, it had widely reached to various persons. There are instances that question papers, when memorised, its photograph was taken and sent to some other persons. Therefore, it cannot be said that question paper did reach in advance to only some identified few. In the order cancelling the examination, the Secretary of the Commission has also recorded that some of the OMR sheets have gone viral and were being circulated in the social media. When and how was it done? How had it reached to the social media? 41. The decision to cancel the examination cannot be termed to be “illegal.” It is based on weighing individual interest and larger public interest so as to maintain purity in examination. The decision to cancel the examination is lawful. 42. The decision to cancel the examination cannot be said to be “irrational.” The decision is not so outrageous in 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. The decision is “rational.” 43. There are charge sheets filed by the STF. There are statements of the witnesses. There were found OMR sheets with answers circulated in the social media. The decision to cancel the examination cannot be said to be “procedurally improper.” Of course, the principle of natural justice in terms of affording an opportunity of hearing to each candidate has not been afforded but it was not required in such cases of mass cheating. There were found OMR sheets with answers circulated in the social media. The decision to cancel the examination cannot be said to be “procedurally improper.” Of course, the principle of natural justice in terms of affording an opportunity of hearing to each candidate has not been afforded but it was not required in such cases of mass cheating. In the case of Nidhi Kaim vs. State of Madhya Pradesh and Others, (2016) 7 SCC 615 , the Hon’ble Supreme Court has observed that adherence to the principle of natural justice for each and every student in such cases is not practicable and it would be a wastage of time and lead to further litigation in courts. 44. The decision to cancel the examination has not been taken in any haste. Based on the material collected after affording it, the decision has been taken. Insofar as the proportionality test is concerned, the decision of cancelling examination also meets to it. The decision is well balanced and harmonious to the situation with which Commission was confronted with. 45. The decision to cancel the examination is not in defiance of logic or of accepted moral or ethical standards. It is reasonable and fair. 46. The decision of cancelling the examination has the aim and intention of maintaining purity of public examination. It is based on material available, it is logical, legal, rational, procedurally proper, proportional, reasonable and fair. Therefore, the decision of cancelling the examination does not warrant any intervention. 47. In view of the foregoing discussion, this Court is of the view that there is no merit in these petitions. Accordingly, the writ petitions deserve to be dismissed. 48. All the writ petitions are dismissed.