2025 INSC 334 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2350 OF 2025

STATE OF ASSAM & ORS. … APPELLANTS

VERSUS

ARABINDA RABHA & ORS. … RESPONDENTS

JUDGMENT

DIPANKAR DATTA, J.

FACTS

1. A process of recruitment was set in motion by the office of the

Principal Chief Conservator of Forest & Head of Forest Force, Assam 1,

Government of Assam, by issuing an advertisement dated 23rd July,

2014 to fill up of 104 posts of Constables in the Assam Forest

Signature Not Verified Protection Force2.

Digitally signed by
JATINDER KAUR
Date: 2025.03.07
15:00:37 IST
Reason:

1
PCCF
2
AFPF
Page 1 of 38
 2. Process of selection was conducted in May, 2016. The

respondents, who had applied pursuant to the advertisement,

participated in the process. They qualified in the physical efficiency

test3, whereafter they were interviewed. It was claimed by the

respondents that the select list prepared by the Central Selection

Committee, headed by the then PCCF, contained names of candidates

found, prima facie, fit for selection and appointment as Constables in

the AFPF and that such list, wherein their names figured, had been

submitted to the Government for approval.

3. In May, 2016 itself, there was a change in the political regime

of Assam pursuant to the elections held to the Assam Legislative

Assembly.

4. On 4th July, 2016, the incumbent PCCF submitted a note to the

Government highlighting serious anomalies that had crept in, in the

selection process. Based on such note of the PCCF but without

conducting any inquiry, as alleged by the respondents, the

Government approved cancellation of the select list vide order of the

Secretary to the Government of Assam, Environment and Forests

Department dated 18th July, 2016. The sole reason assigned for such

cancellation was that the process had been conducted in violation of

the reservation policy as well as judgments of this Court, as suggested

by the PCCF.

3
PET
Page 2 of 38
 5. On 17th August, 2016, a notice was published from the office of

the PCCF in a daily newspaper informing all concerned of cancellation

of the select list. It was conveyed that further action to be taken in the

matter of recruitment of constables in the AFPF would be notified in

due course.

6. Subsequent thereto, a fresh advertisement dated 14th April,

2017 was issued.

7. Two sets of writ petitions4 were instituted in the Gauhati High

Court5. The first writ petition challenged the decision of cancellation of

the select list and the notice dated 17th August, 2016. The other writ

petition challenged the advertisement dated 14th April, 2017. Notice

was issued on the first writ petition on 28 th April, 2017. In course of

hearing, a single Judge was informed that the advertisement dated

14th April, 2017 pertains to appointment of 132 constables. Such

advertisement was different from the 104 posts, which formed the

subject matter of the first writ petition. Considering the same, interim

stay of the advertisement dated 14th April, 2017 was not granted.

THE JUDGMENTS OF THE HIGH COURT

8. Vide judgment and order dated 7th May, 2019, the single Judge

allowed the first of the two writ petitions, referred to above, holding,

inter alia, that the irregularities from which the select list allegedly

4
W.P. (C) 4532 of 2016 and W.P. (C) 2428 of 2017
5
High Court
Page 3 of 38
 suffered can be rectified without disturbing the selection process by

refixing or reallocating the candidates in accordance with merit,

category and status by giving due notice to those who are likely to be

adversely affected. The single Judge was also of the view that the chaff

could be separated from the grain without much difficulty and,

therefore, the decision to view the entire selection process as vitiated,

leading to cancellation of the select list, is untenable.

9. The appellants carried the judgment and order dated 7th May,

2019 in an intra-court appeal.

10. An Hon’ble Division Bench6 of the High Court, vide judgment

and order dated 8th October, 2021, upheld the view taken by the single

Judge and dismissed the writ appeal. The Division Bench was of the

view that prior to cancellation of the select list, no finding of fact had

been arrived at pursuant to an inquiry conducted by any duly

constituted inquiry committee and consequently, the veracity of the

irregularities or illegalities alleged had not been ascertained and that

the note of the then PCCF dated 4th July, 2016, which highlighted the

anomalies, could not have been treated to be definitive finding of fact

arrived at by the Government warranting cancellation of the selection

list. A view was also expressed therein that the irregularities could

have been rectified and the process taken to a logical conclusion.

6
Division Bench
Page 4 of 38
THE CHALLENGE

11. The judgment and order of the Division Bench is the subject

matter of assail in this civil appeal, by special leave, at the instance of

the State of Assam and its officers.

THE NOTICE ISSUING ORDER

12. We have noted that the notice issuing order dated 1 st August,

2022 recorded that the co-ordinate bench was apprised of no written

examination being conducted and that the selection was made on the

basis of interview alone preceded by a physical test, which was a

qualifying test for appearing in the interview. It was also noted that

out of 104 selected candidates, 64 belonged to Kamrup (Metro) and

Kamrup (Rural) districts and that not a single candidate had been

selected from as many as 16 districts. Concerned thereby, the co-

ordinate bench granted stay of operation of the judgment and order

under assail till the next date of hearing.

APPELLANTS’ CONTENTIONS

13. Mr. Chinmoy Pradip Sharma, learned senior counsel and

Additional Advocate General for the appellants, contended that the writ

petition should not have been entertained in the first place by the

single Judge. According to him, neither did the empanelled candidates

have any indefeasible right of appointment against the existing

vacancies nor was the Government under any obligation to fill up the

vacancies. Inclusion of the names of the respondents in the select list

Page 5 of 38
 was at best a condition of eligibility without creating any vested right

of appointment; hence, such inclusion by itself did not confer upon

them the right to invoke the writ jurisdiction and seek certiorari to set

aside the decision to cancel the process as well as for mandamus to

take the process forward. The Government was well within its right to

cancel the process, for, serious irregularities had crept in tainting the

process. In such circumstances, the Government being the sole judge

of facts, its decision demanded deference rather than being quashed

on the ground that the irregularities were curable. Heavy reliance was

placed on the Constitution Bench decision in Shankarsan Dash v.

Union of India7 in support of the contention that the High Court –

both single Judge and the Division Bench – fell in error in making the

directions it did.

14. It was also contended that apart from the fact that the

respondents lacked any legal right to invoke the writ jurisdiction of the

High Court, bare perusal of the note of the PCCF would reveal that

sufficient justification was provided in support of the proposed

cancellation of the select list. The said note having been approved by

the Government, led to issuance of the notice dated 17th August, 2016.

However, the single Judge without even considering as to whether the

decision of the Government did suffer from any of the vices attracting

judicial review, proceeded to make directions which normally would be

7
(1991) 3 SCC 47
Page 6 of 38
within the province of an appellate authority but certainly not a judicial

review court.

15. Insofar as the impugned judgment and order of the Division

Bench is concerned, Mr. Sharma contended that the note of the PCCF

was based on meticulous examination of the records and without there

being any material placed by the respondents before the High Court to

suggest that the PCCF had ignored relevant and germane material or

had considered extraneous material, the intra-court appeal ought not

to have been dismissed on the ground that no inquiry was conducted

to ascertain whether the claims made in the said note were correct.

16. Resting on the aforesaid contentions, Mr. Sharma prayed that

the appeal be allowed and the appellants be permitted to start the

process afresh.

RESPONDENTS’ CONTENTIONS

17. On behalf of the respondents, Mr. Manish Goswami, learned

senior counsel contended as follows:

(i) The order dated 18th July, 2016 and the notice published in the

newspaper dated 17th August, 2016 would make it evident that the

only reason weighing with the Government for cancellation was

violation of the reservation policy and violation of judgments of this

Court. Therefore, the appellants cannot now be permitted to improve

their case by pleadings etc., and urge new reasons justifying the

Page 7 of 38
cancellation. The appellants misled this Court while obtaining the

notice issuing order dated 1st August, 2022.

(ii) No rules were violated in preparation of the select list since no

rules had been framed to govern the selection process and none was

in operation at the relevant point of time, which is an admitted

position.

(iii) Cancellation of the process was based solely on the note dated

4th July, 2016 of the PCCF and no inquiry was ever conducted into the

alleged anomalies. On this ground alone, the appeal is liable to be

dismissed.

(iv) No challenge was laid to the select list by any unsuccessful

candidate alleging corrupt practice and/or fraudulent activity having

been resorted to by the selected candidates including the respondents

and the selection process was free from any taint.

(v) Assuming, but not admitting, that there was some violation of

the reservation policy, even then the same was limited to only 34

selected candidates. This is evident from the averment of the

appellants before the High Court; hence, there was absolutely no

justification to cancel the entire select list containing names of 104

persons. The impugned decision to cancel the select list is hit by the

doctrine of proportionality.

(vi) Both the single Judge as well as the Division Bench was correct

in returning findings that the alleged violation of the reservation policy

Page 8 of 38
 was a curable defect and could be rectified by the authorities without

disturbing the selection process by re-fixing or reallocating the

candidates in accordance to their merit, category and status by giving

due notice to those who are likely to be adversely affected.

18. In support of the aforesaid contentions, reliance was placed by

Mr. Goswami on the following decisions of this Court:

(i) Anamica Mishra v. UPPSC8;

(ii) Union of India & Ors. v. Rajesh P.U., Puthuvalnikathu9;
(iii) Sachin Kumar v. Delhi Subordinate Service Selection
Board & Ors.10; and
(iv) Mohinder Singh Gill v. Chief Election Commission11.

19. Mr. Goswami finally urged that in view of the foregoing

contentions raised by him, the appeal deserves to be dismissed. He

also prayed that this Court may be pleased, in addition, to order that

the directions passed by the single Judge, as affirmed by the Division

Bench, be implemented by the appellants without any further delay.

QUESTIONS ARISING FOR DECISION

20. The broad question of law arising for decision in the light of the

judgment(s) and order(s) of the High Court is:

Whether the High Court was justified in its interference with the

decision to cancel the select list and to require the process to be carried

forward in the manner directed by it?

8
(1990) Supp SCC 692
9
(2003) 7 SCC 285
10
(2021) 4 SCC 631
11
(1978) 1 SCC 405
Page 9 of 38
Answering the aforesaid question would also require us to notice the

grounds based whereon the appellants cancelled the select list. Thus,

we have to necessarily answer two other questions:

(a) whether the decision of the appellants to cancel the select list

was either vulnerable on application of the doctrine of

Wednesbury unreasonableness or suspect applying the doctrine

of proportionality and, therefore, liable to invalidation?

(b) Whether the decision of the appellants to cancel the select list

infringed the legal rights of the respondents for which a writ

petition under Article 226 of the Constitution could be

maintained?

One incidental question arising for decision is, whether the appellants

have urged new grounds to support the cancellation in addition to

those assigned earlier in any affidavit/pleading?

The final question is, what would be the just relief that can be granted

to the parties to this civil appeal?

ANALYSIS AND REASONS

21. We have perused the judgment(s) and order(s) of the High

Court and given due consideration to the contentions advanced by the

parties.

22. It would be profitable to note the precedents in the field having

a bearing on the questions arising for decision in the appeal, before

Page 10 of 38
 we venture to answer the questions formulated above. In our view,

these could provide valuable guidance to steer us towards the right

direction.

23. In State of Haryana v. Subash Chander Marwaha12, this

Court held that the mere fact of certain candidates being selected for

appointment to vacancies pursuant to an advertisement did not confer

any right to be appointed on the post in question and thereby, entitle

the selectees to a writ of mandamus or any other writ compelling the

authority to make the appointment.

24. The Constitution Bench in Shankarsan Dash (supra)

considered the aforesaid decision and, taking cue from it, held that:

“7. 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 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 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
comparative merit of the candidates, as reflected at the
recruitment test, and no discrimination can be permitted. …”

12
(1974) 3 SCC 220
Page 11 of 38
 25. Close on the heels of the above decision, a three-Judge Bench

in Jai Singh Dalal v. State of Haryana13 had the occasion to

observe:

“7. It will thus be seen that at the time when the writ petition
which has given rise to the present proceedings was filed, the
State Government had withdrawn the aforesaid two
notifications by the notification dated December 30, 1991. The
stage at which the last-mentioned notification came to be
issued was the stage when the HPSC was still in the process of
selecting candidates for appointment by special recruitment.
During the pendency of the present proceedings the State
Government finalised the criteria for special recruitment by the
notification of March 9, 1992. Thus, the HPSC was still in the
process of selecting candidates and had yet not completed and
finalised the select list nor had it forwarded the same to the
State Government for implementation. The candidates,
therefore, did not have any right to appointment. There was,
therefore, no question of the High Court granting a mandamus
or any other writ of the type sought by the appellants. The law
in this behalf appears to be well settled. ….”

26. Having noticed the decisions on the point as to the rights that

aspiring candidates have, we move on to notice a decision which is not

only on the point of right of a selected candidate to seek appointment

through writ remedy but also dwells with decisions of subsequent

Governments upsetting the decisions of earlier Governments.

27. One finds an extensive discussion on the tests required to be

satisfied to invalidate a decision of a subsequent Government,

nullifying a previous Government decision, in Jitendra Kumar v.

State of Haryana14. The case involved suspension of the process of

13
1993 Supp (2) SCC 600
14
(2008) 2 SCC 161
Page 12 of 38
selection by the Government because, inter alia, the cadre strength

was found to be unjustly inflated by the previous Government. The

appellants before this Court indisputably were the selected candidates

and the principal question arising for decision, in the given facts and

circumstances, was whether they had a legal right to be appointed.

This Court held, “the legal principle obtaining herein is not in dispute

that the selectees do not have any legal right of appointment subject,

inter alia, to bona fide action on the part of the State”. Noticing the

decisions in Subash Chander Marwaha (supra), Shankarsan Dash

(supra) as well as other decisions on the point, this Court further held

that whereas the selectee as such has no legal right, the superior court

in exercise of its judicial review would not ordinarily direct issuance of

any writ in the absence of any pleading and proof of mala fide or

arbitrariness on the part of the authority, and each case has to be

considered on its own merit. Examining the point as to whether the

impugned action of the respondent-State lacked bona fide, this Court

answered in the negative. Finally, this is what was observed:

“55. We are not oblivious of the constitutional scheme that the

decisions taken by one Government in public interest itself
cannot be a ground for review thereof at the hands of the
successor Government. It is not the Government which is in the
seat of the power, matters in this behalf, but what matters is
the public interest.
56. Mr Dwivedi has drawn our attention to a decision of this
Court in State of Karnataka v. All India Manufacturers
Organisation [(2006) 4 SCC 683] wherein it was held: (SCC pp.
708-09, para 66)
‘66. Taking an overall view of the matter, it appears that
there could hardly be a dispute that the Project is a mega
Page 13 of 38
 project which is in the larger public interest of the State
of Karnataka and merely because there was a change in
the Government, there was no necessity for reviewing all
decisions taken by the previous Government, which is
what appears to have happened. That such an action
cannot be taken every time there is a change of
Government has been clearly laid down in State of U.P.
v. Johri Mal [(2004) 4 SCC 714] and in State of Haryana
v. State of Punjab [(2002) 2 SCC 507] where this Court
observed thus:
‘[I]n the matter of governance of a State or in the
matter of execution of a decision taken by a
previous Government, on the basis of a consensus
arrived at, which does not involve any political
philosophy, the succeeding Government must be
held duty-bound to continue and carry on the
unfinished job rather than putting a stop to the
same.’
57. There cannot be any doubt in regard to the aforementioned
proposition of law but the question herein is whether public
interest would be subserved by asking the State to proceed to
make appointments. Whereas, on the one hand, an action on
the part of the State to interfere with the good work done by
the previous Government solely on the basis of change in the
regime must be deprecated, there cannot however be any
doubt whatsoever that the successor Government cannot blink
over the illegalities committed by the previous Government. If
illegalities have been committed, the same should be rectified.
When there exists a reasonable apprehension in the mind of the
State, having regard to the overall situation including the post-
haste manner in which actions had been taken, to cause an
inquiry to be made and suspend the process of making
appointments till the result of such inquiry is obtained, such a
decision on its part per se cannot be said to be an act of
arbitrariness or unreasonableness.”

28. It has not escaped our notice that the decision in Jitendra

Kumar (supra) has been doubted in All India Railway

Recruitment Board v. K. Shyam Kumar15 on the point as to

whether Wednesbury unreasonableness has been replaced by the

15
(2010) 6 SCC 614
Page 14 of 38
doctrine of proportionality. The facts in K. Shyam Kumar (supra)

bear close resemblance to the facts of the present appeal and, thus,

may be noticed. Therein, the Railway Recruitment Board (RRB) had

called for applications for appointments on Group D posts in the

South-Central Railway Zone, Secunderabad. Consequently, in excess

of three lakh candidates appeared for the written examination. Of

them, ten short of two thousand seven hundred candidates having

achieved the minimum qualifying marks in the written examination,

were called for a PET. Candidates who qualified in the PET were called

for verification, during which certain malpractices were detected in

the written examination. Additionally, there was a deluge of

allegations of mass copying, question paper leakage, and

impersonation committed during the written examination. A vigilance

enquiry was conducted and the report prima facie revealed these

abovementioned illegalities. Relying on the vigilance report, the RRB

decided to conduct a re-test of the candidates who had obtained the

minimum qualifying marks in the written examination. This decision

was challenged by some candidates before the Central Administrative

Tribunal, Hyderabad. The tribunal did not find any irregularity or

illegality with the decision of the RRB, due to which the candidates

were constrained to move the High Court. Before the High Court, the

candidates termed the decision of the RRB as arbitrary and

unreasonable. The High Court agreed with the candidates and set

aside the order directing the re-test as, in the High Court’s opinion,

Page 15 of 38
the decision was unreasonable and violative of the Wednesbury

principles. The RRB approached this Court in appeal. In the resultant

decision, this Court while reversing the decision of the High Court

discussed the scope of both the unreasonableness test as well as the

proportionality test. It was held that the unreasonableness test looks,

not necessarily at the merits of the decision, but the way the decision

was made; the available courses of action of the deciding authority

are scrutinised to ascertain what a reasonable man would do. On the

other hand, the proportionality test is more wide reaching in its

approach, closely analysing the course of action vis-à-vis the

situation requiring a remedy. Hon’ble K.S.P. Radhakrishnan, J.

explained the interplay between these two tests as follows:

“36. Wednesbury 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. 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 Wednesbury has met with its death knell is too tall a
statement...”

Keeping in mind these two tests, this Court noticed that the RRB had

three courses of action once the irregularities had been brought to

Page 16 of 38
light. The first option was to conduct the written examination again

for all the eligible candidates, which would be expensive and time

consuming. The second option was to conduct re-test for the

candidates who had obtained the minimum qualifying marks. The

third option would have been to exclude the sixty-two candidates who

were identified as having indulged in impersonation. The RRB, relying

on the vigilance report, held that there were allegations and prima

facie evidence of mass copying as well as leakage of question papers

and these irregularities could not be tackled by just excluding the

sixty-two candidates accused of impersonation. This Court held that

the actions of the RRB to conduct the re-test for candidates who

obtained the minimum qualifying marks struck the right balance, as

the first option would have been too expensive and time consuming

and the third option would have been too restrictive in combatting

the irregularities in the examination.

29. The decision in K. Shyam Kumar (supra) further sheds light

on another aspect, that is, whether the authority can rely on

subsequent information to justify its decision. In the process, the

decision in Mohinder Singh Gill (supra) was distinguished in the

following manner:

“45. …The principle laid down in Mohinder Singh Gill case is not
applicable where larger public interest is involved and in such
situations, additional grounds can be looked into to examine
the validity of an order. The finding recorded by the High Court
that the report of CBI cannot be looked into to examine the
validity of the order dated 4-6-2004, cannot be sustained.”

Page 17 of 38
 30. Bearing in mind the aforesaid precedents, we have to examine

the facts in some more detail.

31. A close look at the note of the PCCF dated 4th July, 2016 is

indeed imperative, for, it is the basic document providing justification

for the ultimate decision of cancellation. The single Judge in the

judgment dated 7th May, 2019 quoted the said note in full. We

consider it appropriate not to reproduce the note but to summarise

its contents, hereunder:

➢ The Central Selection Committee was directly constituted by the

Minister, Environment & Forests, as per the enclosed

communication.

➢ All the original documents relating to PET were collected directly by

the Central Selection Committee, as per the enclosed order of the

Minister.

➢ A total of 104 candidates, as per the enclosed list, were

recommended for selection/appointment as Constables by the

Central Selection Committee.

➢ Out of 104 candidates, 64 selected candidates belonged either to

Kamrup or Kamrup Metro districts, which raises serious questions

about the fairness of the selection process.

➢ While 18 and 46 candidates who were selected for appointment

hailed from Kamrup (Metro) and Kamrup (Rural) districts,

respectively, the other selectees hailed from the 8 named districts

Page 18 of 38
 with the number of candidates ranging between 1 to 9 from each

district.

➢ No candidate was selected from the 16 named districts which

included the Hill districts, the Barak Valley districts and the Bodoland

Territorial Council (BTC) districts.

➢ These 16 districts, from where not a single candidate had been

selected, represented a population of 1.60 crore out of the

population of 3.11 crore of the State of Assam as per 2011 census;

thus, a population of 52% comprised in the said 16 districts would

go unrepresented.

➢ Not a single candidate has been selected from the Hill districts or

the Barak Valley districts or the BTC districts except one candidate

from Baksa district.

➢ A total of 3518 candidates were called for interview against 104

posts, thus, making it a ratio of about 34 candidates per post.

However, reservation for the various categories like Scheduled

Caste, Scheduled Tribes, Scheduled Tribes (Plain), etc. as shown in

the note were given a complete go-bye. Figures of the number of

candidates who were called from different categories, i.e., General,

ST (Plain), ST (Hills), SC, OBC/MOBC were indicated in a chart,

thereby demonstrating how the law governing reservation and the

judgments of this Court had been violated in calling the candidates

for interview. It was observed that candidates who ought not to have

Page 19 of 38
 been called were called, whereas those deserving of a call were not

called.

➢ Although, 15 OBC/MOBC candidates, 17 ST (Plain) candidates, 1 ST

(Hills) candidate and 1 SC candidate had qualified on merit and could

have been counted as General category candidates, they were

shown to have been selected against their respective reserved

categories. As a result, a number of candidates belonging to the

reserved categories were deprived of selection and undeserving

candidates selected.

➢ Reference was made to a particular candidate who was placed at

Serial No.162 in the list of General category candidates. However,

she was included in the select list for General candidates with only

50 vacancies. Similar type of serious irregularities or illegalities had

taken place in selection of many other candidates.

➢ The entire process of recruitment is highly questionable, unfair and

non-transparent.

32. What can be deduced from the above points flagged by the

PCCF, ultimately approved by the Government, is this.

33. Papers/documents relating to the process of selection

manifested selection of aspirants from certain specified districts and

without there being any representation from a major cross-section of

the population of the State of Assam. That apart, illegalities were

detected in the process leading to preparation of the select list. Non-

meritorious aspirants, undeserving of figuring in the select list, were

Page 20 of 38
included. Besides, appropriate earmarking of posts for reserved

candidates were given a complete go-bye. In addition, meritorious

aspirants belonging to the reserved category were not considered for

filling up open category vacancies but were placed against the

reserved category to which they belonged, thereby depriving other

reserved category aspirants from entering the zone of consideration

for appointment and paving the way for not so meritorious open

category candidates to be placed in the select list. The Government,

having serious reservations about the efficacy of the selection

process, felt that the situation called for cancelling the process. The

question is, whether it was so unjustified that interference in writ

jurisdiction was warranted?

34. Although the ball had been set rolling in 2014, the interview of

the candidates qualifying in the PET commenced in May, 2016 when

admittedly the elections were knocking at the door. This, per se, may

not be seen as a vitiating factor in the absence of any reference in

the note of the PCCF dated 4th July, 2016 as well as in any subsequent

decision of the Government. That apart, proceeding to conduct a

process of recruitment without there being recruitment rules but

based on executive instructions under Article 162 of the Constitution

is not open to invalidation only on such ground. The Constitution

Bench decision of this Court in B.N. Nagarajan v. State of

Page 21 of 38
 Mysore16, since followed by a coordinate bench in Smt. Swaran

Lata v. Union of India17, may be referred to in this context. In

addition, one would find the absence of any requirement for the

aspiring candidates to take a written examination, thereby, leaving

the fate of such candidates to be determined solely and wholly on the

basis of an interview. Once again, we cannot feign ignorance of the

decision of another coordinate bench in Kiran Gupta v. State of

U.P.18 where the law was laid down in clear terms as follows:

“22. It is difficult to accept the omnibus contention that

selection on the basis of viva voce only is arbitrary and illegal
and that since allocation of 15% marks for interview was held
to be arbitrary by this Court, selections solely based on
interview is a fortiori illegal. It will be useful to bear in mind
that there is no rule of thumb with regard to allotment of
percentage of marks for interview. It depends on several
factors and the question of permissible percentage of marks for
an interview-test has to be decided on the facts of each case.
However, the decisions of this Court with regard to
reasonableness of percentage of marks allotted for interview in
cases of admission to educational institutions/schools will not
afford a proper guidance in determining the permissible
percentage of marks for interview in cases of
selection/appointment to the posts in various services. Even in
this class, there may be two categories: (i) when the selection
is by both a written test and viva voce; and (ii) by viva voce
alone. The courts have frowned upon prescribing higher
percentage of marks for interview when selection is on the basis
of both oral interview and a written test. But, where oral
interview alone has been the criteria for
selection/appointment/promotion to any posts in senior
positions the question of higher percentage of marks for
interview does not arise. …”

16
AIR 1966 SC 1942
17
(1979) 3 SCC 165
18
(2000) 7 SCC 719
Page 22 of 38
35. It cannot be gainsaid that the factors of “when”, “which”,

“what”, “who” and “how” that are associated with a

recruitment/selection process is the prerogative of the recruiting

authority and the selectors; however, at the same time, the process

has to be conducted consistent with statutory provisions governing

the same, if any, as well as principles of absolute fairness and

complete non-arbitrariness. Though it is true that the law does not

postulate a fetter on the authority of the employer-State and it is

within the domain of the Government when to initiate a process of

recruitment for public employment, either according to recruitment

rules or even in the absence thereof, it is for the Government of the

day to decide in which manner it proposes to conduct selection, what

would be the various stages the candidates aspiring for appointment

have to pass through in order to be placed in the select list, who

would be the selectors, and how weightage is to be given to each of

the testing methods, a great deal of credence is lent to a process if it

is fairly and transparently conducted in accordance with rules,

whatever be its source, without the slightest hint of any bias or

favouritism or nepotism. Normally, it is not for the courts to interfere

unless the process smacks of mala fides. However, the right to be

considered for public employment being a Fundamental Right, it

would be safe and prudent to have recruitment rules to govern the

process of selection so that the best possible talent is appointed in

public service. Obviously, assessing the merit of the candidates

Page 23 of 38
aspiring for public employment on the basis of a prescribed standard

would not only provide a level playing field for each of them, the

excellence of any institution to which the appointment is to be made

would depend directly on the proficiency of its members/staff and

that would, in turn, depend on the quality and merit of those who

offer themselves for selection and ultimately get selected,

necessitating the selection to be conducted without any hidden taint

or masked mala fides. Last but not the least, having regard to present

times when corruption has been held to be a walk of life by certain

responsible citizens of the country, it would have been desirable if the

process of recruitment of 104 Constables were conducted after

framing of recruitment rules and also prescribing a written

examination to keep the process absolutely above board.

36. Be that as it may, drawing from our joint experience on the

bench, we can say with some degree of conviction and authority that

conducting recruitment processes in terms of executive orders and in

the absence of statutorily prescribed standards, more often than not,

invite avoidable litigation producing undesirable results. Left to us, if

any process of selection was challenged by unsuccessful candidates

on the ground of absence of recruitment rules, or on the grounds of

absence of a written examination, or on the allegations of bias or

favouritism or nepotism which are nebulous, we would certainly not

interfere in the absence of other apparent vitiating factors. However,

the situation in the present case has taken a completely different

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turn. It is the successor Government which nullified the select list.

Hence, the considerations for interference which ordinarily weigh in

the minds of the court, having regard to the peculiar fact situation,

are not exactly the same here. This aspect of the matter, discussed

in some more depth hereafter, seems to have escaped the notice of

the High Court.

37. As the factual narrative has unfolded, it is not that the High

Court was called upon by any unsuccessful candidate to test the bona

fide of the earlier Government decision not to frame recruitment rules

and/or not to prescribe a written examination and/or to require the

aspiring candidates to only go through an interview; on the contrary,

the facts presented evince that it is the successor Government that

had taken an informed decision not to proceed with the earlier

process and to start a new process. At that stage of decision making,

possibly, three options were available to the Government, being – (i)

allow the process to be taken to its logical conclusion, without being

unduly bothered by the illegalities/irregularities detected and referred

to by the PCCF; (ii) cancel the entire process and start it anew; and

(iii) separate the grain from the chaff and to proceed with the former

and complete the process. No doubt, the Government could have set

right the process by preferring the third option. However, once the

Government arrived at the decision considering the

illegalities/irregularities detected by the PCCF that the process ought

to be started afresh and preferred the second option to the first and

Page 25 of 38
third options, thereby cancelling the previous process, the High Court

ought to have applied the proportionality test to adjudge whether the

perfect balance was struck by preferring that option out of the other

available options. Sadly, such test has not been applied.

38. The approach of the single Judge of the High Court, we are

afraid, has evinced an exercise of appellate jurisdiction. Resting on

the sole premise that no allegation of corrupt practice or unfair means

adopted by the candidates (read, the respondents herein) had been

levelled, the single Judge found force in the submission advanced by

learned counsel for the respondents that the selection process cannot

be said to be vitiated by malpractice. The single Judge also expressed

the opinion that mere over-representation or under-representation,

though may be suggestive of irregularity or malpractice, that by itself

was not sufficient to arrive at a definitive conclusion that malpractice

had occurred. Insofar as the ratio of candidates called for interview

qua different categories, the single Judge observed as follows:

“29. As regards the non-conformity of ratio of candidates called

for interview, though it can be said to be an irregularity, but the
question is whether such irregularity itself will be sufficient to
vitiate the selection process.
It may be mentioned that adhering to certain ratio for calling
of candidates for interview is to ensure equitable opportunities to
the candidate for assessment and so that deserving candidates are
not unduly deprived of. In the present case, it has been noted that
the variation in the ratio is not substantial to be considered
unreasonable. Hence, merely because the ratio has not strictly
adhered, that cannot be a ground for setting aside the recruitment
process.
30. Further, though this Court has also noted that the ratio had
not been consistently followed by the Selection Committee, in
absence of any allegation of any corrupt practice or fraudulent
Page 26 of 38
 activity, this Court is of the view that mere non-adherence to
specific ration ought not to be a ground to interfere with the entire
selection process.

39. Viewed in isolation vis-à-vis the claim of the respondents, the

opinion expressed may not seem to be flawed. However, the larger

public interest that the successor Government had in mind was not

kept in view by the single Judge. Fostering diversity and inclusivity in

public service, ensuring that there is representation from almost all

the districts including from the hills and historically backward classes

without, however, compromising merit should be the commitment of

all Governments of States in the North-Eastern part of the country.

The decision to cancel the select list has the marks etched to proceed

towards such commitment and achieving the greater good. Such a

noble initiative was, by no means, open to scrutiny by the judicial

review court. Two distinct conclusions in the given set of facts being

clearly possible and the successor Government having taken a view,

which by no means was unreasonable and/or implausible, the writ

court instead of substituting its view and/or imposing its own decision

as to what would have been and was the correct option that the

Government should have preferred in lieu of the other option actually

preferred, ought to have stayed at a distance instead.

40. It is further useful to remember that the Government itself felt

that the selection being entirely based on interview, the same

admitted an element of arbitrariness and that the assessment of

Page 27 of 38
candidates being based merely on the basis of marks at the interview,

was reasonable for drawing a presumption of being misused for

favouritism and could well be regarded as suffering from the vice of

arbitrariness. In such circumstances, it is indeed difficult, if not

impossible, for a court to law to substitute its decision for the one

taken by the Government reasoning that the selection has not been

challenged by any unsuccessful candidate.

41. Insofar as the candidate referred to in the penultimate point of

the note of the PCCF, the single Judge was of the following opinion:

31. As regards the allegation of including one non meritorious

candidate namely, xxx , this Court is of the opinion that her name
can certainly be struck off and the more meritorious candidate can
be included and such one off illegality cannot said to have vitiated
the entire selection process.
The illegal recommendation of xxx is an instance where the
authorities can themselves rectify by cancelling her selection,
which will not have any bearing on the merit of the other remaining
candidates.”

The aforesaid observations, admitting illegal recommendation having

been made, overlook that it was not a sole instance of favouritism

but the PCCF had also referred, albeit without giving detailed

particulars, to other illegalities/irregularities in respect of selection of

many other candidates.

42. On an overall study of the note, no person of reasonable

prudence would be left in doubt that the process had a coat of

discernible taint suggesting impropriety and bias, if not corruption;

and applying the test of proportionality, the decision taken by the

successor Government of cancelling the process initiated by the

Page 28 of 38
earlier Government cannot be said to be so disproportionate and

incommensurate with the illegalities/irregularities detected that

interference could have been said to be legitimately warranted.

43. The Division Bench arrived at its own conclusion that the select

list should not have been cancelled without any detailed inquiry

having been conducted to find out the veracity of the irregularities or

illegalities alleged.

44. Whether or not a detailed inquiry was needed, despite the note

of the PCCF, ought to have been left undisturbed since the successor

Government reached a satisfaction of its own that for the various

reasons highlighted in the said note, it would be unjust to proceed

further. Such satisfaction could not have been tinkered by the Division

Bench on the ground that a detailed inquiry ought to have been

conducted.

45. We, thus, unhesitatingly arrive at the conclusion that based on

the note of the PCCF dated 4th July, 2016 and the recommendation

made by him for cancellation of the select list, the decision of the

Government to approve the said note and, thereby, cancel the select

list did not stand vitiated to attract its invalidation either by

application of the doctrine of Wednesbury unreasonableness or

proportionality.

Page 29 of 38
46. Before ending our discussion on the relevant issues, we record

having perused the decisions in Anamica Mishra (supra), Rajesh

P.U. (supra) and Sachin Kumar (supra).

47. In Anamica Mishra (supra), this Court held that “… when no

defect was pointed out in regard to the written examination and the

sole objection was confined to exclusion of a group of successful

candidates in the written examination from the interview, there was

no justification for cancelling the written part of the recruitment

examination. On the other hand, the situation could have been

appropriately met by setting aside the recruitment and asking for a

fresh interview of all eligible candidates on the basis of the written

examination and select those who on the basis of the written and the

freshly-held interview became eligible for selection”. The decision

there turns on its facts, with a written examination being followed by

an interview. The reasons for cancelling the process were also trivial

as compared to the very different reasons with which the appellants

were faced. The cited decision is, therefore, distinguishable.

48. There were no serious grievances of malpractices in Rajesh

P.U. (supra) either. In fact, this Court held that “applying a

unilaterally rigid and arbitrary standard to cancel the entirety of the

selections despite the firm and positive information that except 31 of

such selected candidates, no infirmity could be found with reference

to others, is nothing but total disregard of relevancies and allowing

to be carried away by irrelevancies giving a complete go-by to

Page 30 of 38
contextual considerations throwing to the winds the principle of

proportionality in going farther than what was strictly and reasonably

to meet the situation”. It was concluded that “the competent

authority completely misdirected itself in taking such an extreme and

unreasonable decision of cancelling the entire selections, wholly

unwarranted and unnecessary even on the factual situation found

too, and totally in excess of the nature and gravity of what was at

stake, thereby virtually rendering such decision to be irrational”

(emphasis supplied by us).

49. Paragraph 35 of the decision in Sachin Kumar (supra) has

been relied on. There, this Court held that:

“35. In deciding this batch of SLPs, we need not reinvent the

wheel. Over the last five decades, several decisions of this
Court have dealt with the fundamental issue of when the
process of an examination can stand vitiated. Essentially, the
answer to the issue turns upon whether the irregularities in
the process have taken place at a systemic level so as to
vitiate the sanctity of the process. There are cases which
border upon or cross over into the domain of fraud as a result
of which the credibility and legitimacy of the process is
denuded. This constitutes one end of the spectrum where the
authority conducting the examination or convening the
selection process comes to the conclusion that as a result of
supervening event or circumstances, the process has lost its
legitimacy, leaving no option but to cancel it in its entirety.
Where a decision along those lines is taken, it does not turn
upon a fact-finding exercise into individual acts involving the
use of malpractices or unfair means. Where a recourse to
unfair means has taken place on a systemic scale, it may be
difficult to segregate the tainted from the untainted
participants in the process. Large-scale irregularities including
those which have the effect of denying equal access to
similarly circumstanced candidates are suggestive of a malaise
which has eroded the credibility of the process. At the other
end of the spectrum are cases where some of the participants
in the process who appear at the examination or selection test
Page 31 of 38
 are guilty of irregularities. In such a case, it may well be
possible to segregate persons who are guilty of wrongdoing
from others who have adhered to the rules and to exclude the
former from the process. In such a case, those who are
innocent of wrongdoing should not pay a price for those who
are actually found to be involved in irregularities. By
segregating the wrongdoers, the selection of the untainted
candidates can be allowed to pass muster by taking the
selection process to its logical conclusion. This is not a mere
matter of administrative procedure but as a principle of service
jurisprudence it finds embodiment in the constitutional duty
by which public bodies have to act fairly and reasonably. A fair
and reasonable process of selection to posts subject to the
norm of equality of opportunity under Article 16(1) is a
constitutional requirement. A fair and reasonable process is a
fundamental requirement of Article 14 as well. 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. Now it is in the backdrop
of these principles, that it becomes appropriate to advert to
the precedents of this Court which hold the field.”
(emphasis supplied by us)

50. What follows from the above is that each case has to be decided

on its own peculiar facts. It has to be pleaded and proved to the

satisfaction of the Court that the decision of the recruiting authority

(to cancel the entire process because of wrongdoing by some tainted

elements and not save a part of the process, to the extent it could be

Page 32 of 38
saved, to the utter detriment of the interests of the innocent) is

wholly disproportionate to the risk and overly severe relative to what

is at stake, thereby virtually rendering such decision to be irrational.

51. Based on what has been discussed in the paragraphs preceding

consideration of the authorities cited by Mr. Goswami, the appellants’

decision in cancelling the entire selection process initiated vide the

advertisement dated 23rd July, 2014 relying on the note of the PCCF

dated 4th July, 2016, and not part of it, in our considered opinion,

does not seem to be either arbitrary or unreasonable or without any

sense of proportion. Since the earlier process did border on fraud, in

the light of the reservation policy not being respected and observance

of the decisions of this Court (that meritorious reserved category

candidates are entitled to be accommodated in the open category) in

breach, there was a brazen violation which was sought to be corrected

and, if we may say, justifiably so. It has not been proved to our

satisfaction that the impugned decision of cancelling the select list is

the neat result of an injudicious exercise of discretion and was ill-

directed in the guise of achieving the sanctity of the entire selection

process.

52. The broad issue and issue (a) (supra) are, thus, answered in

favour of the appellants by holding that the impugned decision of

cancellation was neither unjustified nor was one which could be upset

by applying the doctrines of either Wednesbury unreasonableness or

proportionality.
Page 33 of 38
 53. Since we find question (b) supra to be a question of frequent

occurrence engaging the courts of law, it is considered fruitful to take

it up for an answer now. It has been argued that by dint of mere

empanelment/enlistment of an aspirant’s name for filling up a public

post, no right accrues in favour of such an aspirant to move the writ

court for redress. We do not consider that an empanelled or a selected

candidate has absolutely no right to move the writ court. We are

conscious of the line of decisions of this Court and have noted some

of them here, which lay down the law that mere

empanelment/enlistment does not result in accrual of any

indefeasible right in favour of such empanelled/selected candidate as

well as the law that the employer may, in its wisdom, either decide

to cancel the select list or not carry on the process further resulting

in the notified/advertised vacancy/vacancies not being filled up

pursuant to the selection process, which has been conducted. What

it means is that an empanelled/selected candidate can claim no right

of appointment, if the State has cogent and germane grounds for not

making the appointment. However, at the same time, it is also the

law that the appointing authority cannot ignore the select panel or

decline to make the appointment on its whims. Shankarsan Das

(supra) cautions that the State has no licence to act in an arbitrary

manner. In R.S. Mittal v. Union of India19, a coordinate bench held

that when a person has been selected by the Selection Board and

19
1995 Supp (2) SCC 230
Page 34 of 38
 there is a vacancy which can be offered to him, keeping in view his

merit position, then, ordinarily, there is no justification to ignore him

for appointment and that there has to be a justifiable reason to

decline to appoint a person who is on the select panel. The position

in law finds reiteration in a decision of recent origin in Dinesh Kumar

Kashyap v. South East Central Railway20, where the majority held

that the employer must give cogent reasons for not appointing

selected candidates.

54. Any decision taken not to appoint despite there being vacancies

and a valid select list, obviously, is in the nature of a policy decision.

It has to be borne in mind that securing public employment is the

dream of many, who put their heart and soul to prepare for it.

Nowadays, aspirants undertake rigorous study sessions as well as

training modules to equip themselves, which also comes at a heavy

cost. That apart, since every process of recruitment necessarily

involves substantial expenses which are borne from the public

exchequer and at the same time the aspirants for the posts (who, as

per their own estimation, have performed sufficiently well and

therefore stand a good chance of being appointed upon figuring in

the select list) cherish fond hopes of a bright and secure future, the

law is clear that the policy decision not to carry the process forward

must be taken bona fide, there has to be justifiable reason if the

20
(2019) 12 SCC 798
Page 35 of 38
process is abandoned mid-way, and such decision must not suffer

from the vice of arbitrariness or the whims of the decision maker.

This acts as a check on the employer’s power deciding against not

making any appointment from the select list despite availability of

vacancy/vacancies on the advertised/notified public post(s). A writ

court may, upon reaching the requisite satisfaction, intervene in such

manner and make such directions as the facts and circumstances

warrant. We, therefore, do not find it acceptable that the aspirants,

not having an indefeasible or vested right of appointment, do not also

have the right to question any decision adverse to their interest

affecting achievement of their goals to secure public employment.

Whether, and to what extent, any relief should be granted, must

depend on the facts of each case.

55. On facts and in the circumstances, however, the respondents’

legal rights were not infringed because of absence of grant of

legitimacy to the select list by way of an approval from the

Government; hence, the writ petition should not have been allowed.

56. Question (b) (supra) is, accordingly, answered.

57. The answer to the issue of the appellants urging new grounds

need not detain us for long. We have not looked into the counter

affidavit of the appellants but have confined our attention to the note

of the PCCF dated 4th July, 2016, containing the reasons based on

which cancellation of the select list was proposed. The law laid down

Page 36 of 38
in Mohinder Singh Gill (supra) admits of no dispute; however, the

said decision has no application because of what has been

immediately observed by us.

58. We reiterate having read the note dated 4th July, 2016 of the

PCCF in between the lines and record that there were materials

proffering sufficient justification for the successor Government to

cancel the select list; hence, we endorse our approval of the same.

59. Having answered all the aforesaid crucial issues, ruling on the

final issue invariably has to be in favour of the appellants.

RELIEF

60. Consequently, the impugned judgment(s) and order(s) of the

High Court stand(s) quashed.

61. The civil appeal stands allowed, without order for costs.

62. Pending applications, if any, shall stand disposed of.

CONCLUDING DIRECTIONS

63. The appellants are granted liberty to take forward the process

of filling up 104 Constables in the AFPF, in accordance with law, by

publishing fresh advertisement. It would be desirable if rules are

framed for the purpose of recruitment and such rules are uniformly

applied to all and sundry, so as to preempt any allegation of bias or

arbitrariness. Even if rules are not framed, the selection process may

Page 37 of 38
be taken forward in terms of administrative instructions which, in any

case, should be placed in the public domain.

64. The respondents, if they choose to apply in pursuance of such

advertisement, shall be considered for appointment waiving their age

bar as well as waiving insignificant minor deficiencies in physical

measurement as well as insignificant requirements of the PET,

considering that almost a decade has passed since the earlier process

was initiated. This concession is granted in exercise of our power

conferred by Article 142 of the Constitution. In addition, it shall be

open to the PCCF to grant such further relaxation to the respondents

as deemed fit and proper.

65. Let the fresh process be initiated and concluded without any

delay.

………………………………J.
(DIPANKAR DATTA)

………………………………J.
(MANMOHAN)
NEW DELHI;
MARCH 07, 2025.

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