http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

CASE NO.: Appeal (civil)  1750 of 2008

PETITIONER: K.P. JOSEPH & ORS

RESPONDENT: OUNION OF INDIA & ORS

DATE OF JUDGMENT: 04/03/2008

BENCH: A.K.MATHUR & ALTAMAS KABIR

JUDGMENT: JUDGMENT

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who have been selected on the  basis of the test conducted on 2nd May, 2005 have failed but their appointment has  not been revoked by the Railway Administration so far).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, 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

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.           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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

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 reverted back.           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 taken.  They must be more careful in future.