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The respondents Ram Kishore, Padam Singh Verma and Guru Dayal Prajapat in all these writ petitions were appointed in Group-D as Class-IV in Indian Railways. They appeared in the selection test held for the post of Clerk-cum-Typist under 16-2/3% Limited Departmental Competitive Examination and were declared pass in written examination. While Ram Kishore and Padam Singh Verma were promoted on the post of Clerk-cum-Typist on 1.8.2007 in the pay scale of 3050-4500 (RSRP), Guru Dayal Prajapat was promoted on the post of Clerk-cum-Typist on 28.7.2008 in the pay scale of 3050-4590 (RSRP). However, a condition was imposed in their promotion order that they will have to clear the typing test within a period of two years. After promotion, they started discharging duties of Junior Clerk in Group-C cadre. However, they failed to clear the typing test within two years. A notice was therefore served upon them to show cause as to why they should not be reverted back to Group-D cadre as they failed to qualify the typing test within two years. The respondents represented that they be granted further/additional chance to appear in the typing test. They also stated that some of their colleagues, who also like them could not clear the typing test within two years, yet they were promoted to higher post of Senior Clerk with permission to now clear the typing test. The respondents relied before the Tribunal the judgment dated 28.4.2011 in O.A. No.435/2010, Kamlesh Kumari vs. Union of India & Ors. in which the Tribunal allowed the original application of Kamlesh Kumari granting her additional chance to clear the typing test. According to order dated 21.6.2010 (Annexure-R/3) filed with reply to the writ petition no.15932/2011, Kamlesh Kumari failed to qualify the typing test in five consecutive opportunities and ultimately after the order of the Tribunal granting her sixth opportunity, she qualified the typing test. The Tribunal has allowed the original application filed by all the three respondents herein directing the petitioners to grant them fourth chance to qualify the typing test and if they are declared successful, they should be continued as Clerk-cum-Typist. However, it was further held that if they fail to pass the typing test, the writ petitioners would be free to give effect to the reversal order passed in their case.

Shri Shailesh Prakash Sharma, learned counsel for petitioners in CW No.4911/2012 submits that already three chances were availed of by Guru Dayal Prajapat in whose case the judgement was passed by Tribunal on the basis of earlier judgement of Tribunal dated 12.7.2011 in O.A. Nos.118/2011 and 123/2011 filed by other two respondents namely; Ram Kishore and Padam Singh Verma. The case of Kamlesh Kumari was distinguishable because she was appointed in handicapped quota in the year 2000 and at that time there was no condition as to the number of chances for passing typing test. Learned counsel referred to order dated 6.6.2008 (Annexure-R/1) filed with reply to writ petition no.4911/2001 and submitted that in note no.2 thereof mention is made of sub-para 4 of para 3 of notification dated 12.10.2007 laying down the condition that the typing test would be passed in two years.

Shri C.B. Sharma and Shri Shiv Singh Ola learned counsel for the respondents opposed the writ petitions and submitted that there was no difference between the case of the respondents and that of Kamlesh Kumari, who was, in fact, allowed seven chances, but on one of the occasions, the examination was cancelled, therefore, she was allowed additional chance, in which she qualified. It is argued that the fact that she was directly appointed in Handicapped quota would not make any difference because this was only a mode of recruitment. Like her, the respondents were also promoted on the post of Junior Clerk, may be on condition of passing the examination in Limited Departmental Competitive Examination quota. It is argued that in the case of Ram Kishore and Padam Singh Verma Verma, the Tribunal has merely allowed them fourth chance to appear in the typing test and has directed that the petitioners would be free to give effect to the reversal order if they fail to clear the same. It was argued that as regards respondent-Guru Dayal Prajapat, he has appeared in the Hindi typing test conducted by the Government of India, Ministry of Home Affairs, Department of Official Language, Hindi Teaching Scheme (Exam Wing), New Delhi and therefore he should have been exempted from appearing in typing test and it should be taken as sufficient compliance. The Tribunal has while granting him fourth chance also alternatively directed that his certificate of clearance of typing test conducted by the Government of India, Ministry of Home Affairs, Department of Official Language, Hindi Teaching Scheme (Exam Wing), New Delhi may be considered.

We have given our anxious consideration to the rival submissions and perused the material on record.

What is evident from the stand of the petitioners is that in para 4.5 of the reply to the original application filed before the Tribunal, they asserted that four opportunities were granted to the respondent Padam Singh Verma, in one of which he was absent. Similarly in the case of Ram Kishore, it was mentioned in the review petition that he was granted four opportunities, but he has not availed fourth chance due to sickness. If that is the case of petitioner-railways that they on their own have been allowing four chances to others and the respondents, there is no reason why fourth chance should not be allowed to respondent-Guru Dayal Prajapat. Moreover, the petitioners have allowed such opportunity on as many as six occasions to Kamlesh Kumari, whose judgement has been relied by the Tribunal in the case of all three respondents. As regards the contention that the Tribunal should not have directed to consider the certificate of passing the Hindi Typing Test by Guru Dayal Prajapat issued by Government of India, Ministry of Home Affairs, Department of Official Language, Hindi Teaching Scheme (Exam Wing), New Delhi, suffice is to observe that, that direction is not a positive direction, but an alternative direction and therefore the petitioners have not been mandatorily required to exempt the respondent-Guru Dayal Prajapat from clearing the typing test. It is only that while allowing his original application, the Tribunal has left it open to the petitioner-railways to either provide him fourth chance to clear the English typist test as per his option or consider the said certificate of clearance of Hindi typing test issued by the Government of India, Ministry of Home Affairs, Department of Official Language, Hindi Teaching Scheme (Exam Wing), New Delhi. If the petitioners do not choose to accept that certificate, which, in fact, they are contesting before this Court, then it would mean that they will be required to grant fourth chance to the respondent-Guru Dayal Prajapat too along with respondents Ram Kishore and Padam Singh Verma to appear in the typing test.