EAST COAST RAILWAY & ANR. ETC.versusMAHADEV APPA RAO & ORS.

                       [201 O] 7 S.C.R 908


A             EAST COAST RAILWAY & ANR. ETC.
                                 v.
                 MAHADEV APPA RAO & ORS.
               (Civil Appeal No. 4964 of 2010 etc.)
                           JULY 7, 2010
B
             [AFTAB ALAM AND T.S. THAKUR, JJ.]

        Administrative Law:

c       Judicial review - Order of administrative authority -
  Canceling typewriting test without assigning reasons - HELD:
  An order passed by a public authority must be judged by
  reasons stated in the order or the record contemporaneously
  maintained - Application of mind by the authority is best
0 disclosed by recording reasons in support of the order -
  Absence of reasons in the order or the contemporaneous
  record is suggestive of the order being arbitrary - High Court
  rightly set aside the order by which the typewriting test was
  cancelled - Constitution of India, 1950 - Articles 14 and 16
E - Servici~ Law.
        Service Law:

       Appointment - Cancellation of typewriting test -
  Challenged by successful candidate - HELD: Although no
F candidate acquires an indefeasible right to a post merely
  because he has appeared in the examination or even found
  a place in the select list, yet State does not enjoy an
  unqualified prerogative to refuse an appointment in an
  arbitrary fashion or to disregard the merit of the candidates
G as reflected in the merit list - The candidates who had
  appeared in the test and were otherwise eligible for
  appointment were entitled to ensure that selection process was
  not allowed to be scuttled for ma/a fide reasons or in an
  arbitrary manner - Validity of such decision is not beyond
H                               908
  EAST COAST RAILWAY & ANR. ETC. v. MAHt1-DEV 909
              APPA RAO & ORS.           '
judicial review - Judicial review - Constitution of India, 1950   A
- Articles 14 and 16 - Locus standi.

     The appellant-organization held a typewriting test on
 30.10.2006 for the posts of Chief Typists, and its result
 was announced on 22.11.2006. On a representation made            8
 by some of the unsuccessful candidates, the test was
 cancelled by order dated 14.12.2006. The said order was
 challenged before the Central Administrative Tribunal. A
 fresh typewriting test was held on 16.12.2006. However,
 result of the second test was not declared. The Tribunal         C
 upheld the order dated 14.12.2006. But, the High Court
 set aside the order of the Tribunal as also the order dated
 14.12.2006 and directed the employers to proceed with
 the selection process as per the first test conducted on
 30.10.2006. Aggrieved, the employers as also some of the
 candidates filed the appeals.                                    D

     Disposing of the appeals, the Court

      HELD: 1.1 Article 14 of the Constitution of India
 strikes at arbitrariness which is an anti thesis of the          E
 guarantee contained in Articles 14 and 16 of the
 Constitution. Whether or not the cancellation of the typing
 test was arbitrary is a question which the Court shall have
 to examine once a challenge is mounted to any such
 action. [para 15] [919-E-G]
                                                                  F
      1.2 There is no precise statutory or other definition
 of the term "arbitrary". Arbitrariness in the making of an
 order by an authority can manifest itself in different forms.
 Non-application of mind by the authority making the order
 is only one of them. Application of mind is best disclosed       G
 by recording the reasons that led the authority to pass
 the order in question. An order passed by a public
\authority exercising administrative/executive or statutory
 powers must be judged by the reasons stated in the order
 or any record or file contemporaneously maintained. The          H
    910      SUPREME COURT REPORTS               [2010] 7 S.C.R.

A infirmity arising out of the absence of reasons cannot be
  cured by the authority passing the order stating such
  reasons in an affidavit filed before the court where the
  validity of any such order is under challenge. Absence
  of reasons either in the order passed by the authority or
B in the record contemporaneously maintained is clearly
  suggestive of the order being arbitrary and, therefore,
  legally unsustainable. In the instant case, the order
  passed by the competent authority or the
  contemporaneous record or file does not state any
c reasons whatsoever for cancellation of the typing test.
  Therefore, it cannot be assumed that the authority
  properly applied its mind before passing the order
  cancelling the test. [para 18, 20 and 21] [920-F-G; 922-C-
    G]
D       Commissioner of Police, Bombay v. Gordhandas Bhanji
  1952 SCR 135 = AIR 1952 SC 16; Mohinder Singh Gill and
  Anr. v. Chief Election Commissioner, New Delhi and Ors.
  1978 (2) SCR 272 = (1978) 1 SCC 405; and R. Vishwahatha.
  Pillai v. State of Kera/a & Ors. 2004 (1) SCR 360 = (200"4) 2
E SCC 105; and Hindustan. Petroleum Corporation Ltd. v.
  Darius Shapur Chenai & Ors. 2005 Suppl. (3) SCR 388 =
    (2005) 7 sec 627 - relied on.

          Kumari Shrilekha Vidyarthi and Ors. v. State of UP. and
F Ors. 1~go Suppl. (1) SCR 625 =AIR 1991 SC 537 - referred
    to.
         Black's Law Dictionary; Corpus Juris Secundum; and
    "Judicial f?eview of Administrative Action" by Prof. De Smith,
    Woolf & Jowell - referred to.
G
      1.3 Although no candidate acquires an indefeasible
  right to a post merely because he has appeared in the
  examination or even found a place in the select list, yet
  the State does not enjoy an unqualified prerogative to
H refuse an appointment in an arbitrary fashion or to
 EAST COAST RAILWAY & ANR. ETC. v. MAHADEV 911
             APPA RAO & ORS.

disregard the merit of the candidates as reflected by the A
merit list prepared at the end of the selection process.
The validity of the State's decision not to make an
appointment is thus a matter which is not beyond judicial
review before a competent writ court. If any such decision
is found to be arbitrary, appropriate directions can be B
issued in the matter. In the instant case, the least which
the candidates who were otherwise eligible for
appointment and who had appeared in the examination
that constituted a step in aid of a possible appointment
in their favour, were entitled to is to ensure that the c
selection process was not allowed to be scuttled for
malafide reasons or in an arbitrary manner. [para 13 and
15] (918-D-G; 919-D-F]
     Shankarsan Dash v. Union of India 1991 (2) SCR 567    =
(1991) 3 SCC 47; and Union Territory of Chandigarh v.           D
Dilbagh Singh and Ors. 1992 Suppl. (2) SCR 311 = (1993)
1 sec 154 - relied on.
    Union of India and Ors. v. Tarun K. Singh and Ors. (2003)
11 sec 768 - referred to.
                                                            E
     2.1 The fact that some representations were received
against the test or the procedure followed for the same,
could not by itself justify cancellation of the test unless
the authority concerned applied its mind to the allegations
levelled by the persons making the representation, came F
to the conclusion that the grievance made in the·
complaint was not without merit and recorded reasons
as to why in its opinion it was necessary to cancel the
t~st. In the instant case, the order of cancellation passed
by the competent authority was not preceded even by a
prima facie satisfaction about the correctness of the G
allegations made by the unsuccessful candidates leave
alone an inquiry into the same. The order of cancellation
passed by the competent authority falls short of the legal
requirements and was rightly quashed by the High Court.
[para 22-23] [923-A-B; F-G; 924-C]                          H



             -
    912    SUPREME COURT REPORTS               [2010] 7 S.C.R.

A      2.2 While application of mind to the material available
  to the competent authority is an essential pre-requisite
  for the making of a valid order, that requirement should
  not be confused with the sufficiency of such material to
  support any such order. Sufficiency or otherwise of the
B material and so also its admissibility to support a decision
  the validity whereof is being judicially reviewed may even
  otherwise depend upon the facts and circumstances of
  each case. No hard and fast rule can be formulated in that
  regard. So also whether the competent authority ought
C to have conducted an enquiry into or verification of the
  allegations before passing an order of cancellation is a
  matter that would depend upon the facts and
  circumstances of each case. But what is absolutely
  essential is that the authority making the order is alive to
  the material on the basis of which it purports to take a
0
  decision. [para 24] [924-D-H; 925-A-B]

       3. The competent authority would re-examine the
  matter in the context of the representation received by it,
  and if upon due and proper consideration thereof, it
E comes to the conclusion that the test earlier held suffered
  from any infirmity or did not give a fair opportunity to all
  the candidates, it shall be free to pass a fresh order
  cancelling the said examination after recording such a
  finding in which event' the second test conducted under
F the directions of the Tribunal would become the basis for
  the selection process to be finalized in accordance with
  law. In case, however, the authority comes to the
  conclusion that the earlier test suffered from no
  procedural or other infirmity or did not cause any
G prejudice to any candidate, the second test/examination
  shall stand cancelled and the process of appointment
  shall be finalized on the basis of the test held earlier. The
  order passed by the High Court is to that extent modified.
  [para 25] [925-D-G; 926-A-B]
H


                                                  .
 EASt COAST RAILWAY & ANR. ETC. v. MAHADEV 913
             APPA RAO & ORS.

                    Case Law Reference!"                        A

 1952 SCR 135                  relied on           para 8
 1978 (2) SCR 272 ·            relied on           para 9
 2004 (1) SCR 360              relied on           para 10
                                                                B
 2005 Suppl. (3) SCR 388       relied on           para 10

 2003) 11 sec 768              referred to         para 11

 1991 (2) SCR 567              relied on           para 12
                                                                c
 1992 Suppl. (2) SCR 311       relied on           para 14

 1990 Suppl. (1) SCR 625       referred to         para 18

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4964 of 2010.                                                   D
    From the Judgment & Order dated 05.11.2007 of the High
Court of Judicature Andhra Pradesh at Hyderabad in W.P. No.
15196 of 2007.

                              WITH                              E

C.A. Nos. 4965-4966 of 2010.

      P.P. Malhotra, ASG, Satya Siddiqui, S.K. Mishra , V.B.
Gugnani, Anil Katiyar, Y. Raja Gopala Rao, Ramesh, Y. Vismai
for the Appellants.                                             F

    Gireesh Kumar, Vijay Kumar for the Respondents.

    The following Judgment of the Gou.rt was delivered

    1. Leave granted.                                           G

    2. These appeals arise out of an order passed by the High
Court of Andhra Pradesh at Hyderabad whereby Writ Petition
No.15196 of 2007 has been allowed and the order passed by
                                                                H
    914      SUPREME COURT REPORTS                  [2010] 7 S.C.R.


A   the Central Administrative Tribunal, Hyderabad Bench in OA
    No.748 of 2006 set aside.

        3. Senior Divisional Personnel Officer, East Coast
   Railway, Visakhapatnam, issued a notification proposing to
B conduct a written/practical typewriting test for filling up the
   vacant posts of Chief Typists in the pay-scale of Rs.5500-9000.
   In response as many as 12 candidates appeared in the test
   held on 30th October, 2006 the result whereof was announcfid
  on 22nd November, 2006. Some of the candidates who failed
  to qualify made a representation complaining about the manner
C in which the test was conducted alleging that defective
  typewriting machines provided to them placed them at a
  disadvantage vis-a-vis candidates declared successful. The
  successful candidates also appear to have made a
   representation impressing upon the authorities to go ahead with
D the interviews and to complete the selection process
  expeditiously. Since that did not happen, OA No.748 of 2006
  was filed before the CAT by one of the successful candidates
  for a direction to respondent to proceed with the selection. In
  the meantime the Divisional Manager of the appellant-Railways
E issued an order on 14th of December, 2006 cancelling the
  typewriting test conducted on 30th October, 2006. By another
  notification of even date a fresh typewriting test was notified to
  be held on 16th December, 2006 for all the 12 in-service
  candidates who had appeared in the earlier test. By an interim
F order passed by the Tribunal the railway authorities were
  allowed to conduct the proposed second test in which the
  applicant before the Tribunal could also appear. The applicant
  was at the same time permitted to amend the prayer in the OA
  to assail the order passed by the Divisional Manager of the
G Railways cancelling the earlier test.

        4. It is not in dispute that pursuant to the said notification
    and the order passed by the Tribunal a fresh test was indeed
    conducted in which all the eligible in-service candidates
    appeared although the result of the said test has not been
H
 EAST COAST RAILWAY & ANR. ETC. v. MAHADEV 915
             APPA RAO & ORS.

announced so far. The Tribunal eventually dismissed OA A
No.748 of 2006 holding that the test earlier conducted was
rightly cancelled inasmuch as the candidates were made to
take the test in batches and no option was given to them to bring
their own typewriters. The Tribunal further held that although
some of the candidates had made representation as early as B
on 23rd October, 2006 seeking permission to use computers
their request was not considered. All this according to the
Tribunal justified the cancellation of the typewriting test held on
30th October and the issue of a notification for a fresh test.

     5. Aggrieved by the order passed by the Tribunal Shri C
Mahadev Appa Rao declared successful in the first test filed
Writ Petition No.15196/2007 before the High Court of Andhra
Pradesh which has by the order impugned in the present
appeal allowed the same and set aside the order passed by
the Tribunal as also the order by which the earlier test was D
cancelled. The High Court.further directed the respondent to
proceed with the selection process pursuant to notification
dated 18th October, 2006 and the practical test conducted on
30th October, 2006 in terms thereof. The present appeals, as
noted above, assail the correctness of the said order.       E

     6. We have heard learned counsel for the parties at some
length and perused the record. The High Court has found fault
with the order cancelling the earlier test primarily because the
same was unsupported by any reasons whatsoever. The said           F
order is in the following words:

     "The practical test conducted to Hd. Typists in scale
     Rs.5000-8000 (RSRP) on 30.10.2006 in connection with
     the selection of Chief Typist in scale Rs.5500-9000
     (RSRP) to form a panel of 4 UR + 1 SC and the results         G
     published vide 0.A. No. Estt/Pers/52/2006, Dt. 22.12.2006
     are hereby cancelled."

     7. The High Court was also of the view that no reasons
for cancellation of the test having been recorded even on the      H
    916       SUPREME COURT REPORTS                  [2010] 7 S.C.R


A   file contemporaneously maintained for that purpose, the same
    could not be supplied in the affidavit filed in reply to the Writ
    Petition challenging the said order, especially when the
    cancellation of the test was not according to the High Court
    necessitated by any irregularity in the conduct of the test or any
s   mala tides vitiating the same. In the absence of any such
    infirmity the cancellation of the examination was arbitrary and
    unsustainable, declared the High Court.

          8. There is no quarrel with the well-settled proposition of
    law that an order passed by a public authority exercising
C   administrative/executive or statutory powers must be judged by
    the reasons stated in the order or any record or file
    contemporaneously maintained. It follows that the infirmity
    arising out of the absence of reasons cannot be cured by the
    authority passing the order stating such reasons in an affidavit
D   filed before the Court where the validity of any such order is
    under challenge. The legal position in this regard is settled by
    the decisions of this Court in Commissioner of Police, Bombay
    v. Gordhandas Bhanji (AIR 1952 SC 16) wherein this Court
    observed :
E
          "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
F
          to have public effect and are intended to affect the actings
          and conduct of those to whom they are addressed and
          must be construed objectively with reference to the
          language used in the order itself. "

G        9. Reference may also be made to the decision of this
    Court in Mohinder Singh Gill and Anr v. Chief Election
    Commissioner, New Delhi and Ors. (1978) 1 SCC 405 where
    this Court reiterated the above principle in the following words:

H         "8. The second equally relevant matter is that when a
 EAST COAST RAILWAY & ANR. ETC. v. MAHADEV                  917
             APPA RAO & ORS.

    statutory functionary makes an order based on certain          A
    grounds, its valid11y must be judged by the reasons so
    mentioned and c;annot be supplemented by fresh reasons
    in the shape of affidavit or otherwise. Otherwise, an order
    bad in the beginning may, by the time it comes to court
    on account of a challenge, get validated by additional         B
    grounds later brought out."

     10. Later decisions of this Court in R. Vishwanatha Pillai
v. State of Kera/a & Ors. (2004) 2 SCC 105 and Hindustan
Petroleum Corporation Ltd. v. Darius Shapur Chenai & Ors.          C
(2005) 7 sec 627 have re-stated the legal position settled by
the earlier two decisions noticed above.

     11. Relying upon the decision of this Court in Union of
India and Ors. v. Tarun K. Singh and Ors. (2003) 11 SCC 768,
Mr. Malhotra all the same argued that the challenge to the order   D
cancelling the test was legally untenable as no candidate had
any legally enforceable right to any post until he was selected
and an order of appointment issued in his favour. Cancellation
of the selection process on the ground of malpractices could
not, therefore, be subjected to judicial scrutiny before a Writ    E
Court, at the instance of a candidate who had not even found
a place in the select list.·

     12. A Constitution Bench of this Court in Shankarsan Dash
v. Union of India (1991) 3 sec 47 had an occasion to
                                                                   F
examine whether a candidate seeking appointment to a civil
post can be regarded to have acquired an indefeasible right
to appointment again such post merely because his name
appeared in the merit list of candidates for such post.
Answering the question in the negative this Court observed:
                                                                   G
    "It is not correct to say that if a number of vacancies are
    notified for appointment and adequate number of
    candidates are found fit, the successful candidates acquire
    an indefeasible right to be appointed which cannot be
                                                                   H
    918       SUPREME COURT REPORTS                    [2010] 7 S.C.R.


A         legitimately denied. Ordinarily the notification merely
          amounts to an invitation to qualified candidates to apply
          for recruitment and on their selection they do not acquire
          any right to the post. Unless the relevant recruitment rules
          so indicate, the State is under no legal duty to fill up all or
8         any of the vacancies. However, it does not mean that the
          State has the licence of acting in an arbitrary manner. The
          decision not to fill up the vacancies has to be taken bona
          fide for appropriate reasons. And if the vacancies or any
          of them are filled up, the State is bound to respect the
c         comparative merit of the candidates, as reflected at the
          recruitment test, and no discrimination can be permitted.
          This correct position has been consistently followed by this
          Court, and we do not find any discordant note in the
          decisions in the State of Haryana v. Subhash Chander
          Marwaha 1974 (3) SCC 220; Neelima Shang/a (Miss) v.
D
          State of Haryana 1986(4) SCC 268 or Jitender Kumar
          v. State of Punjab 1985 (1) SCC 122."

         13. It is evident from the above that while no candidate
  acquires an indefeasible right to a post merely because he has
E appeared in the examination or even found a place in the select
  list, yet the State does not enjoy an unqualified prerogative to
  refuse an appointment in an arbitrary fashion or to disregard
  the merit of the candidates as reflected by the merit list
  prepared at the end of the selection process. The validity of the
F State's decision not to make an appointment is thus a matter
  which is not beyond judicial review before a competent Writ
  court. If any such decision is indeed found to be arbitrary,
  appropriate directions can be issued in the matter.

G        14. To the same effect is the decision of this Court in Union
    Territory of Chandigarh v. Dilbagh Singh and Ors. (1993) 1
    SCC 154, where again this Court reiterated that while a
    candidate who finds a place in the select list may have no
    vested right to be appointed to any post, in the absence of any
    specific rules entitling him to the same, he may still be aggrieved
H
 EAST COAST RAILWAY & ANR. ETC. v. MAHADEV 919
             APPA RAO & ORS.

of his non-appointment if the authority concerned acts arbitrarily   A
or in a malafide manner. That was also a case where selection
process had been cancelled by the Chandigarh Administration
upon receipt of complaints about the unfair and injudicious
manner in which the select list of candidates for appointment
as conductors in CTU was prepared by the Selection Board.            B
An inquiry got conducted into the said complaint proved the
allegations made in the complaint to be true. It was in that
backdrop that action taken by the Chandigarh Administration
was held to be neither discriminatory nor unjustified as the same
was duly supported by valid reasons for cancelling what was          c
described by this Court to be as a "dubious selection".

     15. Applying these principles to the case at hand there is
no gainsaying that while the candidates who appeared in the
typewriting test had no indefeasible or absolute right to seek
an appointment, yet the same did not give a licence to the D
competent authority to cancel the examination and the result
thereof in an arbitrary manner. The least which the candidates
who were otherwise eligible for appointment and who had
appeared in the examination that constituted a step in aid of a
possible appointment in their favour, were entitled to is to E
ensure that the selection process was not allowed to be scuttled
for malafide reasons or in an arbitrary manner. It is trite that
Article 14 of the Constitution strikes at arbitrariness which is
an anti thesis of the guarantee contained in Articles 14 and 16
of the Constitution. Whether or not the cancellation of the typing F
test was arbitrary is a question which the Court shall have to
examine once a challenge is mounted to any such action, no
matter the candidates do not have an indefeasible right to claim
an appointment against the advertised posts.
                                                                   G
      16. What then is meant for arbitrary/arbitrariness and how
far can the decision of the competent authority in the present
case be described as arbitrary? Black's Law Dictionary
describes the term "arbitrary" in the following words:
                                                                     H
    920       SUPREME COURT REPORTS                 [2010] 7 S . CR.

A         "1. Depending on individual discretion; specif, determined
          by a judge rather than by fixed rules, procedures, or law.
          2. (Of a judicial decision) founded on prejudice or
          preference rather than on reason or fact. This type of
          decision is often termed arbitrary and capricious."
B
         17. To the same effect is the meaning given to the
    expression "arbitrary" by Corpus Juris Secundum which
    explains the term in the following words:
                                                                  '
          "ARBITRARY - Based alone upon one's will, and not
c         upon any course of reasoning and exercise of judgment;
          bound by no law; capricious; exercised according to one's
          own will or caprice and therefore conveying a notion of a
          tendency to abuse possession of power; fixed or done
          capriciously or at pleasure, without adequate determining
D         principle, nonrational, or not done or acting according to
          reason or judgment; not based upon actuality but beyond
          a reasonable extent; not founded in the nature of things;
          not governed by any fixed rules or standard; also, in a
          somewhat different sense, absolute in power, despotic, or
E         tyrannical; harsh and unforbearing. When applied to acts,
          "arbitrary" has been held to connote a disregard of
          evidence or of the proper weight thereof; to express an
          idea opposed to administrative, executive, judicial, or
          legislative discretion; and to imply at least an element of
          bad faith, and has been compared with "willful".
F
         18. There is no precise statutory or other definition of the
    term "arbitrary". In Kumari Shrilekha Vidyarthi and Ors. v. State
    of UP. and Ors. (AIR 1991 SC 537), this Court explained that
    the true import of the expression "arbitrariness" is more easily
G   visualized than precisely stated or defined and that whether or
    not an act is arbitrary would be determined on the facts and
    circumstances of a given case. This Court observed:

          "The meaning and true import of arbitrariness is more
H         easily visualized than precisely stated or defined. The
EAST COAST RAILWAY & ANR. ETC. v. MAHADEV 921
            APPA RAO & ORS.

    question, whether an impugned act is arbitrary or not, is A
    ultimately to be answered on the facts and in the
    circumstances of a given case. An obvious test to apply
    is to see whether there is an'; discernible principle
    emerging from the impugned act and if so, does it satisfy
    the test of reasonableness. Where a mode is prescribed B
    for doing an act and there is no impediment in following
    that procedure, performance of the act otherwise and in a
    manner which does not disclose any discernible principle
    which is reasonable, may itself attract the vice of
    arbitrariness. Every State action must be informed by            c
    reason and it follows that an act uninformed by reason, is
    arbitrary. Rule of law contemplates governance by laws
    and not by humour, whims or caprices of the men to whom
    the governance is entrusted for the time being. It is trite
    that 'be you ever so high, the laws are above you'. This is 0
    what men in power must remember, always."

     19. Dealing with the principle governing exercise of official
power Prof. De Smith, Woolf & Jowell in their celebrated book
on "Judicial Review of Administrative Action" emphasized how
the decision-maker invested with the wide discretion is              E
expected to exercise that discretion in accordance with the
general principles governing exercise of power in a
constitutional democracy unless of course the statute under
which such power is exercisable indicates otherwise. One of
the most fundamental principles of rule of law recognized in all     F
democratic systems is that the power vested in any competent
authority shall not be exercised arbitrarily and that the power
is exercised that it does not lead to any unfair discrimination.
The following passage from the above is in this regard
apposite:                                                            G

     "We have seen in a number of situations how the scope
     of an official power cannot be interpreted in isolation from
     general principles governing the exercise of power in a
     constitutional democracy. The courts presume that these         H
    922       SUPREME COURT REPORTS                     [201 OJ 7 S.C.R.

A         principles apply to the exercise of all powers and that even
          where the decision-maker is invested with wide discretion,
          that discretion is to be exercised in accordance with those
          principles unless Parliament clearly indicates otherwise.
          One such principle, the rule of law, contains within it a
B         number of requirements such as the right of the individual
          to access to the law and that power should not be
          arbitrarily exercised. The rule of law above all rests upon
          the principle of legal certainty, which will be considered
          here, along with a principle which is partly but not wholly
c         contained within the rule of law, namely, the principle of
          equality, or equal treatment without unfair discrimination."

          20. Arbitrariness in the making of an order by an authority
    can manifest itself in different forms. Non-applicat.ion of mind
    by the authority making the order is only one of them. Every
D   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
E   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.
F
           21. 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
G   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. Mr. Malhotra's contention that the order was passed
    entirely on the basis of the complaint received from the
H
 EAST COAST RAILWAY & ANR. ETC. v. MAHADEV 923
             APPA RAO & ORS.

unsuccessful candidates is also of no assistance. The fact that A
some representations were received against the test or the
procedure followed for the same could not by itself justify
cancellation of the test unless the authority concerned applied
its mind to the allegations levelled by the persons making the
representation and came to the conclusion that the grievance B
made in the complaint was not without merit. If a test is
cancelled just because some complaints against the same
have been made howsoever frivolous, it may lead to a situation
where no selection process can be finalized as those who fail
to qualify can always make a grievance against the test or its c
fairness. What is important is that once a complaint or
representation is received the competent authority applies its
mind to the same and records reasons why in its opinion it is
necessary to cancel the examination in the interest of purity of
the selection process or with a view to preventing injustice or
                                                                  0
prejudice to those who have appeared in the same. That is
precisely what had happened in Dilbagh Singh's case (supra).
The examination was cancelled upon an inquiry into the
allegations of unjust, arbitrary and dubious selection list
prepared by the Selection Board in which the allegations were
found to be correct. Even in Tarun K. Singh's case (supra) relied E
upon by Mr. Malhotra an inquiry into the complaints received
against the selection process was conducted no matter after
the cancellation of the examination. This Court in that view held
that since the selection process was vitiated by procedural and
other infirmities cancellation thereof was perfectly justified.   F

     23. That is not, however, the position in the instant case.
The order of cancellation passed by the competent authority
was not preceded even by a prima facie satisfaction about the
correctness of the allegations made by the unsuccessful G
candidates leave alone an inquiry into the same. The minimum
that was expected of the authority was a due and proper
application of mind to the allegations made before it and
formulation and recording of reasons in support of the view that
the competent authority was taking. There may be cases where H
    924       SUPREME COURT REPORTS                   [2010] 7 S.CR.

A   an enquiry may be called for into the allegations, but there may
    also be cases, where even on admitted facts or facts verified
    from record or an enquiry howsoever summary the same
    maybe, it is possible for the competent authority to take a
    decision, that there are good reasons for making the order
B   which the authority eventually makes. But we find it difficult to
    sustain an order that is neither based on an enquiry nor even
    a prima facie view taken upon a due and proper application of
    mind to the relevant facts. Judged by that standard the order
    of cancellation passed by the competent authority falls short of
c   the legal requirements and was rightly quashed by the High
    Court.

        24. We may hasten to add that while application of mind
   to the material available to the competent authority is an
   essential pre-requisite for the making of a valid order, that
D requirement should not be confused with the sufficiency of such
   material to support any such order. Whether or not the material
  placed before the competent authority was in the instant case
  sufficient to justify the decision taken by it, is not in issue before
   us. That aspect may have assumed importance only if the
E competent authority was shown to have applied its mind to
  whatever material was available to it before cancelling the
  examination. Since application of mind as a thresh-hold
   requirement for a valid order is conspicuous by its absence the
  question whether the decision was reasonable having regard
F to the material before the authority is rendered academic.
  Sufficiency or otherwise of the material and so also its
  admissibility to support a decision the validity whereof is being
  judicially reviewed may even otherwise depend upon the facts
  and circumstances of each case. No hard and fast rule can be
G formulated in that regard nor do we propose to do so in this
  case. So also whether the competent authority ought to have
  conducted an enquiry into or verification of the allegations
  before passing an order of cancellation is a matter that would
  depend upon the facts and circumstances of each case. It may
H
 EAST COAST RAILWAY & ANR. ETC. v. MAHADEV 925
             APPA RAO & ORS.

often depend upon the nature, source and credibility of the A
material placed before the authority. It may also depend upon
whether any such exercise is feasible having regard to the
nature of the controversy, the constraints of time, effort and
expense. But what is absolutely essential is that the authority
making the order is alive to the material on the basis of which B
it purports to take a decision. It cannot act mechanically or
under an impulse, for a writ court judicially reviewing any such
order cannot countenance the exercise of power vested in a
public authority except after due and proper application of mind.
Any other view would amount to condoning a fraud upon such     c
power which the authority exercising the same holds in trust only
to be exercised for a legitimate purpose and along settled
principles of administrative law.

      25. The next question then is whether the selection should
be finalized on the basis of the test held earlier or the matter D
allowed to be re-examined by the authority in the context of the
representation received by it. In our opinion the latter course
would be more in tune with the demands of justice and fairness
especially when a second test has been conducted in which
all the in service candidates have appeared. The result of this E
examination/test has not, however, been declared so far
apparently because of the pendency of these proceedings. If
upon due and proper consideration of the representation
received from the candidates who were unsuccessful in the first
examination, the competent authority comes to the conclusion F
that the test earlier held suffered from any infirmity or did not
give a fair opportunity to all the candidates, it shall be free to
pass a fresh order cancelling the said examination after
recording such a finding in which event the second test
conducted under the directions of the Tribunal would become G
the basis for the selection process to be finalized in accordance
with law. In case, however, the authority comes to the
conclusion that the earlier test suffered from no proceduralcor
other infirmity or did not cause any prejudice to any candida~.
                                                                H
    926     SUPREME COURT REPORTS                  [2010] 7 $.C.R.


A   the second test/examination shall stand cancelled and the
    process of selection finalized on the basis of the test held
    earlier. The order passed by the High Court is to that extent
    modified and the present appeals disposed of leaving the
    parties to bear their own costs. In order to avoid any delay in
B   the finalization of the process of appointments which have
    already been delayed, we direct that the competent authority
    shall pass an appropriate order on the subject expeditiously but
    not later than two months from today.

    R.P.                                     Appeals disposed of.