Joseph & Ors Vs. Ounion of India & Ors  INSC 350 (4 March 2008)
A.K.MATHUR & ALTAMAS KABIR WITH SLP(C) NO. 22595 OF 2007
O R D E R CIVIL APPEAL NO.1750 OF 2008 (Arising out of SLP(C) No.10423 of 2007)
We have heard learned counsels for the parties. In both the petitions a similar
question of law is involved. Therefore, they are being disposed of by a common
order. For the convenient disposal of these petitions the facts given in the
case of SLP(C) No.10423 are taken into consideration.
Leave granted in SLP(C) No. 10423 of 2007.
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2nd May, 2005 have failed but their appointment has not been revoked by the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,
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
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.
Aggrieved against the order passed by the High Court on 13th March, 2007 the
present SLP was filed by the petitioners. At the same time another SLP was also
filed on the same order by one Ahsad Ullah Khan & Ors. who were the writ
petitioners before the High Court as well as before the Tribunal challenging
the same very order and prayed that the order of the High Court should be set
aside and the entire selection process should have been quashed.
We have heard learned counsel for the parties and perused the record.
It is true that the selection which was undertaken on the various dates, the
objective type questions should have been framed 45% to 55% as per the -5-
Railway Board circular dated 7th August, 2003. Normally, the objective type
questions should have been varied from 45% to 55% and according to the order
passed by the Division Bench it appears that by and large, this percentage of
objective type questions was maintained but only on 2nd May, 2005 it appears
that 60% objective type questions were set in the papers. This was found by the
High Court to be not warranted as per the circular of the Railway Board dated
7th August, 2003.
It is a very fine exercise that sometimes there can be an error of 5% in
upper side or it can be on lower side. Therefore, it is very difficult to
maintain a strict balance that, in no case, it should exceed 55%. It appears
that in the present case only it has exceeded by 5% in the test held on 2nd
May, 2005 but it is not mala fide on the part of any person. It may be a bona
fide error on the part of the person who prepared the question paper on 2nd
May, 2005 where he has exceeded in setting objective type questions by 5% only.
This is a too minor error which should not result in dislodging the whole
selection. The Courts are not sitting in Court of Appeal and Court should not
interfere in such small minor deviations in conduct of the examination. This
kind of bona fide errors can happen and that should not cause such -6- a
serious inconvenience that the persons who have already been selected should be
put back to square No.1.
Another very interesting feature in this case is that those 23 selected
candidates out of 24 candidates were not a party either before the Tribunal or
before the High Court. But the High Court has proceeded to set aside the
selection and appointments of all 23 candidates and directed to reconvene the
tests keeping 40% of objective type questions held on 2nd May, 2005 only.
Learned counsel for the respondent has strongly urged before us that he has
prayed for quashing of the whole selection because it was not held as per
policy of Railway Board circular and therefore, it was not necessary for him to
implead all the selected candidates as a party. We cannot agree with the
preposition of learned counsel for the respondent. These 23 persons who have
been identified and who have been selected and have been appointed now, their
appointment is said to be set aside and this is going to result in serious
civil consequences to these selected candidates. Therefore, they ought to have
been impleaded as party but they were not impleaded as party which has resulted
in setting aside their selection and they were forced to appear in a fresh test
conducted by the Railway Administration. In our opinion -7- these persons ought
to have been impleaded as part because they were the beneficiaries and they
were the persons identified and not impleading them as a party resulted in
great injustice to these three appellants and others.
In this view of the matter, we agree that the view taken by the High Court
cannot be sustained and we accordingly, set aside the order of the High Court
dated 13th March, 2007 and allow this appeal and also set aside the fresh
selection held in pursuance of the order of the High Court. The appointment of
all the 23 persons who have been selected on 2nd May, 2005 stand confirmed by
us and they will continue to be on their posts and they will not be reverted
back because of the failure in passing the examination in pursuance of the
directions given by the Division Bench on 13th March, 2007.
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
Consequently, this appeal is allowed.
SLP (C) No.22595 of 2007 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
They must be more careful in future.