IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 WP(C).No. 20734 of 2009(S) ---------------------------------------------- OA.868/2006 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH .................... PETITIONER(S)/RESPONDENTS 1 TO 3: ----------------------- 1. THE GENERAL MANAGER, SOUTHERN RAILWAY, HEADQUARTERS, CHENNAI-3. 2. THE DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, PALAKKAD DIVISION, PALAKKAD. 3. THE SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, PALAKKAD DIVISION, PALAKKAD. BY ADV. SRI.T.P.M.IBRAHIM KHAN. RESPONDENT(S)/ APPLICANT AND RESPONDENTS 4 TO 17: ---------------------- 1. RAJU.D., SENIOR GOODS GUARD, SOUTHERN RAILWAY, ERODE, RESIDING AT 211-A, RAILWAY COLONY, ERODE. 2. JEYASINGH.V, STAFF NO.JT 999, PASSENGER GUARD, SOUTHERN RAILWAY, ERODE. 3. CHANDRAMOHANAN.R., STAFF NO.TS 74/78, PASSENGER GUARD, SOUTHERN RAILWAY, PALGHAT. 4. PALANIAPPAN.R, STAFF NO.JT 1078, PASSENGER GUARD. SOUTHERN RAILWAY, ERODE. 5. KRISHNAKUMARI.B, STAFF NO.FF 2684, PASSENGER GUARD, SOUTHERN RAILWAY, PALAKKAD. - 2 - WPC No.20734 of 2009 6. WILLIAM NAGARAJ.T, STAFF NO. JC 819, PASSENGER GUARD, SOUTHERN RAILWAY, ERODE. 7. YOGANANDAN.P, STAFF NO.JC 578, PASSENGER GUARD, SOUTHERN RAILWAY, ERODE. 8. DEVADASAN.C.M., STAFF NO.JC 646, PASSENGER GUARD, SOUTHERN RAILWAY, SHORANUR. 9. PAVITHRAN.K., STAFF NO.JT 2130, PASSENGER GUARD, SOUTHERN RAILWAY, CALICUT. 10. SURESHKUMAR, STAFF NO.JC 579, PASSENGER GUARD, SOUTHERN RAILWAY, PALAKKAD. 11. RAVINDRAN.P., STAFF NO.2365, PASSENGER GUARD, SOUTHERN RAILWAY, ERODE. 12. VASUDEVAN.S., STAFF NO.JT 2629, PASSENGER GUARD, SOUTHERN RAILWAY, ERODE. 13. ELANGOVAN.V., STAFF NO.JT 1975, PASSENGER GUARD, SOUTHERN RAILWAY, ERODE. 14. SIVADAS.K., STAFF NO.JT 1778, PASSENGER GUARD, SOUTHERN RAILWAY, PALAKKAD. 15. VIJAYAKUMAR MEENA, STAFF NO.JT 4574, PASSENGER GUARD, SOUTHERN RAILWAY, ERODE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. ------------------------------ W.P.(C) No.20734 of 2009 ------------------------------ Dated this, the 3rd day of August, 2009 JUDGMENT Balakrishnan Nair, J. The respondents 1 to 3 in O.A.No.868 of 2006 before the Central Administrative Tribunal, Ernakulam Bench are the writ petitioners. The said Original Application was filed by the first respondent herein, who was a senior Goods Guard aspiring for promotion to the post of Passanger Guard. The selection was made by the writ petitioners to the said post by conducting a written test. Since the applicant failed to get the qualifying marks of 60%, he was not included in the panel. Feeling aggrieved by his non-selection, the Original Application was filed. The main ground taken before the Tribunal was that the written test was not conducted as per the orders governing the same at the relevant time. It is not disputed by the Railways that, a certain percentage of the questions for the written test, should be of objective type. It is also not disputed by the Railways that, for the relevant test taken by the first respondent, the entire questions were of descriptive type. So, WP(C) No.20734/09: - 2 - the respondent/applicant contended that the written test was conducted not in accordance with law and therefore, the selection should be set aside. The Tribunal accepted the said contention, but declined to interfere with the selection. It was noticed that a few seats were remaining vacant for want of eligible/qualified hands. So, the writ petitioners were directed to conduct a written test exclusively for the unsuccessful candidates including the applicant, with the requisite number of objective type of questions and make selection to those vacancies. Feeling aggrieved by the said direction of the Tribunal contained in Ext.P5 order in the aforementioned O.A., this writ petition is filed. 2. The learned counsel for the petitioners submitted that the first respondent who participated in the written test should not be permitted to turn round and challenge the method of the test. The above principle of law cannot be mechanically applied to every case. In this case, we notice that the first respondent has come forward to challenge the test at the earliest point of time, when he found the illegality committed by WP(C) No.20734/09: - 3 - the petitioners in holding the test prejudiced him. Secondly, it is pointed out by the learned counsel for the petitioners that in 2007, a new Circular has been issued by the Railways providing for selection of Passanger Guard solely based on viva-voce. Therefore, the direction issued by the Tribunal may be vacated, it is submitted. We find that the vacancies which arose after the issuance of new Circular could be filled up based on viva-voce alone. In this case, we notice that the vacancies have arisen earlier. Therefore, the second ground raised by the petitioners also cannot be accepted. No other ground has been raised by the petitioners. In the result, the writ petition fails and it is dismissed. Sd/- K. Balakrishnan Nair, Judge. Sd/- C.T. Ravikumar, Judge. DK. (True copy)