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Judgment
We have heard Mr. R. V. Sinha, learned counsel for the review petitioners at length.
Having heard Mr. Sinha, we are of the view that no occasion arises for us to review our order dated 23 January 2025.
Mr. Sinha’s first contention is that this Court has relied on Circular No.2004-E(SCT)1/25/20, dated 31 July 2013, issued by the Railway Board, which was never part of the record before the Tribunal and was, in fact, introduced by the respondent writ petitioner only with the rejoinder. He submits that the rejoinder is not a part of the pleadings. He submits that, if this Court was of the view that the document had necessarily to be taken into account, it ought to have remanded the matter to the Tribunal to examine it as a court of first instance, especially given the law laid down in L. Chandra Kumar v UOI1. He relies for this purpose, on the judgment of the Division Bench of this Court in M. Ganesan and Ors v A.K. Belwal2.
In the first place, the submission that a rejoinder is not part of the pleadings is not strictly correct. Though the CPC only restricts pleadings to a plaint and the written statement, it has been held, in Anant Construction (P) Ltd. v. Ram Niwas3, that a rejoinder, where permitted to be filed, is also a part of the pleadings. In any event, that issue is really tangential to the controversy.
Secondly, the Circular dated 31 July 2013 is a public document. It is an administrative instruction issued by the Railway Board. Even if it is not cited in pleadings, it is always open to either side to rely on it. It is not as though the respondent was introducing a new issue of fact which is required to be pleaded specifically.
Thirdly, at the stage of hearing of the writ petition, no such objection was raised by the UOI to the Circular dated 31 July 2013 having been permitted to be taken on record or to the reliance thereon placed by the respondent.
In so far as the decision in M. Ganesan is concerned, it is clearly distinguishable. That was a case in which in the writ petition filed before this Court, a fresh cause of action, which was never pleaded, was sought to be raised. The Division Bench of this Court held, unexceptionably, that it could not act as a Court of first instance and examine a cause of action which was never raised before a Tribunal.
Reliance on the Circular dated 31 July 2013 does not amount to raising of a fresh cause of action before this Court.
Mr. Sinha’s next contention is that though this Court is exercising Article 226 jurisdiction, the jurisdiction is akin to Article 227 and is, therefore, restricted to examining whether there is any perversity or patent illegality in the Tribunal order and that this Court would not sit as a court of appeal.
We have in fact found the Tribunal’s order not to have been decided in accordance with law, in view of the Circular dated 31 July 2013, which was clarificatory in nature and which clarified that the post in question was a non-safety category post. As such, we do not feel that we breached the confines of L Chandra Kumar, in any way.
Mr. Sinha further submits that the Circular dated 31 July 2013 could not be treated as retrospective. This plea was specifically raised by the UOI before us. It was noted in the judgment and dealt with. It would, ordinarily, therefore, not even be open to be urged in review. Nonetheless, we reiterate that as the Circular dated 31 July 2013 was clarificatory in nature, it had necessarily to apply retrospectively. This submission is also, therefore, rejected.
Mr. Sinha further submits that, having participated in the selection process, the respondent could not have challenged the process on not having qualified.
This principle, in the first place, is no longer, as cast in iron as it earlier was, following a judgment of the Supreme Court in Dr. (Major) Meeta Sahai v. State of Bihar4, in which the Court, speaking through Hon’ble Mr. Justice Surya Kant (as the Hon’ble Chief Justice then was) clarified that, in a case where the challenge was to the very basis on which the selection took place, there could be no estoppel against challenging it, even after participating. Indeed, the Supreme Court observed that, in many cases, it would not possible for the candidates to challenge the selection unless he or she participated in it.
In this case, we have only extended to the respondent, the benefit of the Circular issued by the Railway Board itself. The Circular itself claims to be clarificatory. We fail to understand, in these circumstances, why the Railway Board is so hesitant to grant benefit to the respondents despite the order that we have passed.
We find no occasion to review our order within the parameters of review jurisdiction vested in this Court. The review petition is, accordingly, dismissed.