K.P. Joseph & Ors vs Ounion Of India & Ors

This appeal by special leave is directed against the judgment and order dated 13th March, 2007 passed by the High Court of Judicature at Bombay, Bench at Nagpur in Writ Petition No.901 of 2006. The appellants herein were not party in the proceedings either before the High Court or before the Tribunal. The appellants in this appeal are challenging the order passed by the Division Bench of the High Court of -2- Judicature at Bombay, Bench at Nagpur in Writ Petition No.901 of 2006 dated 13th March, 2007 whereby the High Court has partly allowed the writ petition and directed that all the candidates who were selected on 2nd May, 2005 in a written test should be asked to reappear in the examination on 2nd May, 2005 and the appointment of all these appellants i.e. 23 persons was set aside and the Railway Administration was directed to reconvene the examination by setting a written test with 40% objective type questions. (We are informed that in pursuance of the order passed by the Division Bench the examinations were again conducted and in that examination 23 persons, out of 24 persons, who have been selected on the basis of the test conducted on 2nd May, 2005 have failed but their appointment has not been revoked by the Railway Administration so far). The examinations were conducted by the Railway Administration. 37 posts of such drivers were to be filled up from Nagpur Division out of the drivers who were operating the goods trains. The written tests were held on 27th April, 2005; 29th April, 2005; 2nd May, 2005; 4th May, 2005;, 6th May, 2005; and 12th May, 2005. The Railway Board has issued a circular that the objective type questions will be put to the extent of 45% to 55% in -3- the questions papers. The appellants were subjected to test on various dates and in that it is found that in some tests, 40% objective type questions were put but in the 2nd May, 2005 test, 60% of the objective type questions were put in. Therefore, this created a dis-similarity in conducting all the examinations. All the examinations were conducted and results were announced in which the appellants before us, though they were not a party either before the Tribunal or before the High Court, were selected. Those persons who have not been selected challenged this selection by filing an original application before the Central Administrative Tribunal, Nagpur and prayed that this kind of discrimination has resulted in great injustice because the objective type questions should have been put from 45% to 55%, but on 2nd May, 2005 60% objective type questions were put as a result of which all the appellants before us were selected. The Tribunal considered the matter and declined to interfere with the selection made by the Railway Administration.

Aggrieved against the order passed by the Central Administrative Tribunal, the Writ Petition was filed by the unsuccessful candidates before the High Court. The High Court after considering the matter found that the -4- tests held on other dates objective type questions vary from 45%-55%. But, the test which was held on 2nd May, 2005 where 60% objective type questions were put which became easier to qualify and it resulted into discrimination. Therefore, selection and appointment of these persons was set aside and a fresh test with 40% objective type questions was directed. That test was undertaken and we are informed that all of them have failed.

Since we have set aside the order dated 13th March, 2007 passed by the High Court, therefore, there was no necessity for undertaking this fresh test and since fresh test has been undertaken in pursuance of the order of the High Court dated 13th March, 2007 that is also set aside. The appointments of these three appellants before -8- us and all the remaining persons who are not a party before us who were appeared on 2nd May, 2005 is upheld. They will not be reverted back. Consequently, this appeal is allowed.

In view of the orders passed in Civil Appeal No. 1750 of 2008 arising out of SLP(C) No.10423 of 2007, this SLP is dismissed.

No order as to costs.

We have been told that now the system has already been discontinued and now the selection is made by way of viva voice only.

However, before parting with the case we feel that the administration has not taken proper care while preparing the test papers which ought to have been taken. They must be more careful in future.