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K.S. RADHAKRISHNAN, J.

We are in these cases concerned with the validity of an order dated 04.06.2004 issued by the Railway Board directing the Railway Recruitment Board (in short RRB) to conduct a re-test for recruitment to Group-D posts, for those candidates who had obtained minimum qualifying marks in the first written examination against which large scale irregularities were noticed.

2. The RRB vide its employment notification 1/2003 dated 13.06.2003 invited applications for filling up Group `D' posts in the South Central Railway Zone, Secunderabad. In response to the notification 10,02,909 applications were received by the RRB out of which 5,86,955 were found eligible and call letters were sent to them for appearing in the written test held at various centres from 09.11.2003 to 21.11.2003. 3,22,223 candidates appeared for the written test, out of which 2690 were selected to be called for Physical Efficiency Test (PET) held on 03.02.2004 to 12.02.2004. Candidates who qualified in the PET were called for verification of original certificates from 04.04.2004 to 12.02.2004. During verification it was noticed that certain malpractices had taken place in the written examination. Meanwhile, several complaints were also received by the RRB stating that certain candidates had indulged in mass copying in some centers, including leakage of question papers and impersonation of certain candidates. Since large scale irregularities and malpractices were noticed it was decided to refer the matter to the State Vigilance Department. The Vigilance Department conducted a preliminary enquiry and submitted its report which was placed before the Tribunal as well as before the High Court. Portions of the report extracted in the judgment of the High Court prima facie revealed leakage of question papers, mass copying and impersonation of candidates in the written test. Report also indicated the possibility of involvement of some employees of Railways and outsiders in the malpractices detected. Vigilance Department also recommended that the matter be referred to the Central Bureau of Investigation(CBI).

3. The vigilance report and the various complaints were examined by the Railway Board and the Board after discussing the matters with the RRB gave a direction vide its letter dated 04.06.2004 to conduct a re-test for those candidates who had obtained minimum qualifying marks in the written examination. The operative portion of the order reads as follows:-

"Board have gone into complete details of the matter in view of the nature of malpractices / irregularities involved, it has been decided that candidates obtaining minimum qualifying marks may be subjected to another written examination by conducting the same in good educational institution under tight control and supervision. This would ensure the exclusion of those, who might have secured undue advantage in the earlier examination. Thereafter, candidates may be called for PET on the basis of fresh merit list irrespective of the fact whether some of them had appeared in the PET held on February 2004".

5. Aggrieved by the order dated 04.06.04 certain candidates who had taken the first written examination filed O.A. No.975/2004 before the Central Administrative Tribunal, Hyderabad questioning the decision to conduct re-test and also sought for a declaration that they are eligible to be appointed to Group `D' posts in the South Central Railway Zone, Secunderabad pursuant to the selection held in the month of February, 2004. Alternatively it was contended that even if the Board had the power to conduct second stage written examination it should be confined only to 2690 candidates who had qualified in the earlier written examination. The stand of the Board was that, there was no illegality in ordering a re-test and para 18.1 of the selection procedure empowered the Board to do so. Referring to paragraph 18.4 of the employment notice No.1/2003 it was contended that merely qualifying in the written and / or PET a candidate would not get any vested right for appointment, especially since no final list or panel was published. Reference was also made to the vigilance report and the report of the CBI which prima facie revealed serious malpractices including mass copying, leakage of question papers and impersonation in the written examination.

12. We heard learned counsel on either side at length and we have also gone through the extract of the vigilance report which appears in para 15 of the judgment of the High Court. Report indicated that 100 to 200 candidates were suspected to have obtained answers for the questions three hours before the examination through some middleman who had arranged answers by accepting huge bribe. Apart from the serious allegations of impersonation in respect of 62 candidates it was stated on close scrutiny of the answer sheets at least six candidates had certainly adopted unfair means to secure qualifying marks in the written test. Report says that investigation prima facie established leakage of question papers to a sizable number of candidates for the examination held on 23.11.2003. Further, it was also noticed that leakage of question paper was pre-planned and widespread and the possibility of involvement of Railway / RRB staff and also outsiders could not be ruled out and hence, recommended that the matter be referred to CBI. The High Court also referred to the reports of the superintendent of Police PEI(A)/2004/ CBI, Hyderabad which suggested certain measures to be adopted by the Board to rule out such malpractices in future. Reports of the CBI of course, were not available with the Railway Board when they took the decision on 04.06.2004 to conduct a re-test but only the vigilance report and the complaints received.