REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1577 Of 2019

UNION OF INDIA & ORS.            ...APPELLANT(S)

VERSUS

C. GIRIJA & ORS.                     ...RESPONDENT(S)

WITH

CIVIL APPEAL NO. 1578 Of 2019

MEENA BHASKAR                       ...APPELLANT(S)

VERSUS

C. GIRIJA & ORS.                     ...RESPONDENT(S)

AND

WRIT PETITION (CIVIL) NO. 653 Of 2015

C. GIRIJA                            ...APPELLANT(S)

VERSUS

UNION OF INDIA & ORS.                ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN, J.

Two appeals, one by Union of India and one by

Meena Bhaskar, have been filed against the Division

Bench  judgment  of  the  Kerala  High  Court  dated

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06.02.2015. The writ petition under Article 32 has

been  filed  by  C.  Girija  seeking  direction  to

implement the order passed by the Division Bench of

the  High  Court  and  the  order  of  the  Central

Administrative Tribunal in her favour.

2. Brief facts necessary to be noted for deciding

these appeals and writ petition are:

The  Southern  Railway,  Divisional  Office,

Personnel  Branch  issued  a  notification  dated

14.10.1999  for  selection  of  group  ‘C’  employee  to

Group  ‘B’  within  30%  quota  by  LDCE  in  Personnel

Department.  The  notification  intimated  total  5

vacancies (4 unreserved and 1 SC) to be filled up by

limited  competitive  Departmental  examination  under

30%  quota.  Smt.  C.Girija  working  as  Office

Superintendent  Grade  I,  Personal  Branch,  Southern

Railway  submitted  her  candidature  as  unreserved

category candidate. Smt. Meena Bhaskar also submitted

her  candidature  as  reserved  (SC)  candidate.  On

09.01.2001 after written test and viva voce a select

panel  was  issued  which  did  not  include  name  of

C.Girija against 4 unreserved posts. Name of Meena

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Bhaskar was shown as selected candidate against one

SC post. According to her marks C.Girija was placed

at  the  panel  as  fifth  candidate  in  unreserved

category. Promotion orders were issued on 09.01.2001,

candidates those included in the panel were promoted

as Assistant Personal Officer. Panel for 70% quota

was  subsequently  prepared  and  was  also  issued  on

10.04.2001. Under 70% quota there were 13 vacancies

(10 unreserved, 2 SC, 1 ST) for selection to the post

of Assistant Personal Officer. The vacancies relate

to period from 01.10.1996 to 30.09.1998. Thus, total

vacancies, 18 were bifurcated into 30% and 70% quota.

The  panel  issued  for  70%  quota  was  revised  on

20.06.2007,  by  including  additional  2  SC  employees

and  excluding  two  junior  unreserved  employees.

Subsequently,  on  05.09.2007  panel  dated  20.06.2007

was again revised adjusting two unreserved employees.

The applicant C.Girija submitted a representation to

the General Manager, Southern Railway, Chennai dated

25.09.2007 requesting for her inclusion and promotion

against  the  post  of  APO  against  30%  quota  in  the

panel drawn on 09.01.2001. In her representation the

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applicant referred to revision of the panel of 70%

quota by order dated 20.06.2007 and 05.09.2007. The

applicant  in  her  representation  also  stated  that

reserving  one  post  for  SC,  against  30%  quota  was

against  the  norms.  The  representation  submitted  by

the  applicant  dated  25.09.2007  was  replied  by  the

General  Manager  vide  letter  dated  27.12.2007.  The

General Manager in his reply stated that the orders

issued by the Railways on 20.06.2007 and 05.09.2007

were relating to 70% quota with which applicant has

no concern. With regard to 5 posts under 30% quota it

was stated that selection was finalised on 09.01.2001

as  per  the  reservation  rules  prevalent  at  the

relevant  time.  The  appellant  aggrieved  by  the

communication dated 27.12.2007 filed O.A. No.466 of

2009  before  the  Central  Administrative  Tribunal,

Ernakulam in which the applicant Smt. Meena Bhaskar,

the  selected  candidate  was  impleaded  as  respondent

No.9. Before the Tribunal the respondents filed their

reply. The Tribunal after considering the material on

record disposed of the matter vide its judgment and

order dated 09.11.2011. There was a delay of 560 days

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in filing the O.A., the Tribunal condoned the delay

and decided the O.A. by passing the following order

in paragraphs 11 & 12:

“11. Annexure  A-I  dated  27.12.2007  is quashed.  The  respondents  are  directed  to include the applicant in Annexure A-2 panel on the basis of her qualifying marks and to promote her notionally with effect from the date the 9th respondent has been promoted to the  post  of  Assistant  Personnel  Officer. The applicant should be placed above the 9th

respondent in the seniority list of APO for the  year  2001.  The  applicant  should  be given  regular  posting  as  APO  within  a period of 60 days from the date of receipt of a copy of this order. The 9th respondent who will be displaced from the Annexure A-2 panel  should  be  adjusted  against  any vacancy that arose subsequent to Annexure A-2. The period from the date of promotion of the respondent No.9 in 2001 to the date her adjustment on a regular vacancy should be  regularised  and  appropriate  orders  in this  regard  also  should  be  issued  within the time stipulated above.

12. No order as to costs.”

3. Against the order of the Tribunal, 9th Respondent,

Meena Bhaskar filed Original Petition before the High

Court of Kerala being O.P. (CAT) No.82 of 2012. The

Union of India also filed O.P.(CAT) No.925 of 2012

before  the  High  Court.  The  High  Court  vide  its

judgment dated 03.04.2012 remanded the matter to the

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Tribunal  for  fresh  consideration  of  the  relevant

issues. Against the judgment of the High Court, the

applicant C.Girija filed C.A.Nos.7181-82 of 2014 in

this Court. This Court set aside the judgment of the

High Court and remanded the matter to the High Court

for  determination  of  the  controversy  on  merits  in

accordance with law. In pursuance of the judgment of

this Court dated 04.08.2014, the High Court heard the

parties and by judgment dated 06.02.2015 upheld the

order  of  the  Tribunal  and  dismissed  the  Original

Petitions  filed  by  the  Union  of  India  as  well  as

Meena Bhaskar, the 9th Respondent. Aggrieved by the

judgment of the High Court dated 06.02.2015 Union of

India as well as 9th Respondent have filed these two

appeals.  The  parties  shall  be  referred  to  as

described before the Tribunal.

4. Writ Petition No.653 of 2015 has been filed by

the applicant C. Girija under Article 32 praying for

direction to the respondent to fix the pay of the

petitioner as per the direction of the Tribunal dated

09.11.2014 as upheld by the High Court. The applicant

in writ petition has also claimed for a direction

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directing  the  respondent  to  pay  her  full  retiral

benefits  along  with  interest  since  she  retired  on

31st May, 2015.

5. Shri  K.M.  Nataraj,  learned  ASG  appearing  for

Union of India submitted that the claim of applicant

of inclusion in the Panel declared on 09.01.2001 was

barred by laches and delay.  The Tribunal and High

Court committed error in entertaining the claim of

the applicant and issuing direction for inclusion in

panel.  It is submitted that cause of action arose to

applicant when the notification dated 14.10.1999 was

issued earmarking 05 vacancies under 30% LDCE quota,

out of which 04 were unreserved and 01 was reserved.

The applicant participated in the selection without

raising any objection and it was only after more than

06 years, she filed a representation on 25.09.2007.

By filing of the representation after more than 06

years, delay and laches cannot be condoned.  The mere

fact  that  the  representation  was  replied  on

27.12.2007 shall not give any fresh cause of action

to the applicant.   

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6. Learned  ASG  submits  that  the  applicant  having

participated without raising any objection regarding

allocation of 01 vacancy to SC candidate, it was not

open for her to challenge the same after such long

delay.  Learned ASG further submitted that even on

merits,  the  case  of  the  applicant  has  no  legs  to

stand.  It is submitted that the cadre strength being

total 37, the total of existing vacancies, vacancies

likely to arise within two years as well as 30% as

construction reserve, total vacancies were calculated

as  18  and  out  of  18,  13  were  allocated  to  70%

selection  and  05  were  allocated  to  30%  Limited

Departmental Competitive Examination (LDCE).  Out of

05,  although  initially  under  calculation  05  were

shown to be allocated to general category but after

objection  by  Nodal  Officer,  who  was  entrusted  to

implement  the  reservation,  the  05  vacancies  were

bifurcated into 04 unreserved and 01 reserved, which

was approved by General Manager.  Consequently, the

notification was issued on 14.10.1999 providing for

01 SC and 04 unreserved category vacancies.   

7. Learned  counsel  appearing  for  the  applicant

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refuting the submission of the learned ASG submits

that there was no delay and laches on the part of the

applicant.   Applicant’s  husband  has  sent  several

representations right from 2002.  The applicant came

to know about several facts regarding irregularities

in selection when the matter was being investigated

by  CBI.  The  applicant  when  came  to  know  about

relevant  facts,  she  filed  representation  on

25.09.2007.  The Tribunal had condoned the delay of

560  days  and  allowed  the  O.A.  on  merits,  hence

question of delay cannot be pressed in service.  It

is further submitted that under 30% LDCE quota, two

SC category candidates were already in place namely,

Shri A. Balachander and Shri J. Senguttuvan, hence no

vacancy should have been allocated to SC quota under

30% selection notified on 14.10.1999. He submits that

there  was  ample  material  before  the  Tribunal  that

above  two  SC  category  candidates  being  already

working under 30% under SC quota, no vacancy should

have been allocated to 30% LDCE.  He submits that in

spite of direction of the Tribunal and High Court,

applicant never got promotion nor benefit of any pay

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fixation.   Applicant  retired  on  31.05.2015.

Consequently, she had to file a Writ Petition No. 653

of  2015  seeking  a  direction  to  compute  all  her

benefits of promotion and all retiral benefits on the

promoted post.  

8. Learned counsel appearing for the 9th respondent

adopts the submission made by learned ASG. Refuting

the submission of the learned counsel appearing for

the applicant it is submitted that the case of the

applicant was highly delayed.  Cause of action arose

to the applicant on 14.10.1999 and 09.01.2001 and the

representation was submitted by her after more than

06 years and by mere reply of the representation will

not give fresh cause of action to the applicant to

rake  up  the  matter  before  the  Tribunal.   In  the

Tribunal and the High Court, the plea of delay and

laches was pressed but both ignored the laches on the

part of the applicant.  On account of the promotion

granted to the 9th respondent on 09.01.2001, the 9th

respondent was entitled to sit back.  The promotion

having  not  been  challenged  within  reasonable  time,

the promotion granted to the 9th respondent cannot be

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adversely  affected  after  such  a  long  delay.   The

findings recorded by the Tribunal and High Court on

the  question  of  allocation  of  vacancies  were  also

perverse.   

9. Learned  counsel  for  the  parties  in  support  of

their respective submissions have relied on various

judgments of this Court, which shall be referred to

while considering the submissions in detail.

10. From the submissions of the learned counsel of

the parties and materials on record, following two

issues arise for consideration:-

(i) Whether the claim of the applicant to be

included in the Panel dated 09.01.2001 for

promotion as APO was barred by delay and

laches?

(ii) Whether under 30% quota of LDCE, all the 05

vacancies  ought  to  have  been  made

unreserved  and  notification  dated

14.10.1999 making 04 vacancies unreserved

and 01 vacancy reserved for SC was illegal?

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Issue No.1

11. There is no dispute between the parties that in

the  notification  dated  14.10.1999  inviting

applications for filling up of 05 posts under 30%

LDCE quota, 04 vacancies were shown as unreserved and

01 as reserved for SC. The applicant submitted an

application  for  participation  in  the  selection  but

she  could  not  be  included  against  04  unreserved

vacancies,  she being a general category candidate.

There  were  certain  complaints  with  regard  to

selection  under  70%  quota,  with  regard  to  which

certain investigations were going on, which could be

finalized  in  2007.   Applicant  for  the  first  time

submitted representation to General Manager, Southern

Railways on 25.09.2007 praying for inclusion of her

name  in  the  panel  dated  09.01.2001.   Copy  of  the

representation  filed  by  the  applicant  has  been

brought on the record, which indicate that applicant

has in her representation relied on certain orders

issued on 20.06.2007 and 05.09.2007 with regard to

revision  of  the  panel  under  70%  selection  quota.

With regard to 30% quota to be filled through LDCE,

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she stated that reserving 01 post for SC was totally

against  all  norms.   Representation  was  replied  by

Railways on 27.12.2007 stating that with regard to

revision of the panel under 70% promotion quota, the

applicant is not a party in any way. With regard to

vacancy under 30% LDCE selection, it was indicated

that the same was done as per the Rules prevalent at

that time.  O.A. No. 466 of 2009 was filed thereafter

by  the  applicant,  which  has  been  decided  by  the

Tribunal.  Tribunal condoned the delay of 560 days in

filing the O.A.  The applicant has challenged the

communication dated 27.12.2007 of the Railways which

was  given  in  reply  to  the  representation  of  the

applicant.   The  condonation  of  delay,  thus,  only

meant that against the letter dated 27.12.2007, her

O.A. was held to be within time.  The Tribunal and

High  Court  has  not  adverted  to  the  delay,  which

accrued from the declaration of panel on 09.01.2001

and submitting her representation on 25.09.2007, i.e.

after more than 06 years and 09 months.   

12. This Court had occasion to consider the question

of  cause  of  action  in  reference  to  grievances

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pertaining to service matters.  This Court in C.Jacob

Vs.  Director  of  Geology  and  Mining  and  Another,

(2008) 10 SCC 115 had occasion to consider the case

where an employee was terminated and after decades,

he filed a representation, which was decided.  After

decision of the representation, he filed an O.A. in

the  Tribunal,  which  was  entertained  and  order  was

passed.  In the above context, in paragraph No.9,

following has been held:-

“9. The  courts/tribunals  proceed  on  the assumption, that every citizen deserves a reply to his representation. Secondly, they assume  that  a  mere  direction  to  consider and dispose of the representation does not involve  any  “decision”  on  rights  and obligations  of  parties.  Little  do  they realise  the  consequences  of  such  a direction  to  “consider”.  If  the representation is considered and accepted, the  ex-employee  gets  a  relief,  which  he would not have got on account of the long delay, all by reason of the direction to “consider”.  If  the  representation  is considered  and  rejected,  the  ex-employee files  an  application/writ  petition,  not with  reference  to  the  original  cause  of action  of  1982,  but  by  treating  the rejection  of  the  representation  given  in 2000, as the cause of action. A prayer is made  for  quashing  the  rejection  of representation and for grant of the relief claimed  in  the  representation.  The tribunals/High  Courts  routinely  entertain such  applications/petitions  ignoring  the huge  delay  preceding  the  representation,

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and proceed to examine the claim on merits and grant relief. In this manner, the bar of  limitation  or  the  laches  gets obliterated or ignored.”

13. This Court again in the case of  Union of India

and  Others  Vs.  M.K.  Sarkar,  (2010)  2  SCC  59 on

belated representation laid down following, which is

extracted below:-

“15. When  a  belated  representation  in regard to a “stale” or “dead” issue/dispute is  considered  and  decided,  in  compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action  for  reviving  the  “dead”  issue  or time-barred  dispute.  The  issue  of limitation  or  delay  and  laches  should  be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance  with  a  court’s  direction. Neither a court’s direction to consider a representation issued without examining the merits, nor a decision given in compliance with  such  direction,  will  extend  the limitation, or erase the delay and laches.”

14. Again,  this  Court  in  State  of  Uttaranchal  and

Another Vs. Shiv Charan Singh Bhandari and Others,

(2013) 12 SCC 179  had occasion to consider question

of delay in challenging the promotion.  The Court

further held that representations relating to a stale

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claim or dead grievance does not give rise to a fresh

cause  of  action.   In  Paragraph  Nos.  19  and  23

following was laid down:-  

“19. From the aforesaid authorities it is clear as crystal that even if the court or tribunal  directs  for  consideration  of representations relating to a stale claim or dead grievance it does not give rise to a fresh cause of action. The dead cause of action  cannot  rise  like  a  phoenix. Similarly,  a  mere  submission  of representation  to  the  competent  authority does not arrest time.

23. In State of T.N. v. Seshachalam, (2007) 10  SCC  137,  this  Court,  testing  the equality clause on the bedrock of delay and laches  pertaining  to  grant  of  service benefit, has ruled thus: (SCC p. 145, para 16)

“16.  …  filing  of  representations alone would not save the period of limitation.  Delay  or  laches  is  a relevant factor for a court of law to determine the question as to whether the  claim  made  by  an  applicant deserves consideration. Delay and/or laches on the part of a government servant  may  deprive  him  of  the benefit  which  had  been  given  to others.  Article  14  of  the Constitution of India would not, in a situation  of  that  nature,  be attracted as it is well known that law leans in favour of those who are alert and vigilant.”

15. This Court referring to an earlier judgment in 16

P.S. Sadasivaswamy Vs. State of Tamil Nadu, (1975) 1

SCC 152 noticed that a person aggrieved by an order

of promoting a junior over his head should approach

the Court at least within six months or at the most a

year of such promotion.  In Paragraph No. 26 and 28,

following was laid down:-

“26. Presently, sitting in a time machine, we may refer to a two-Judge Bench decision in  P.S.  Sadasivaswamy v.  State  of  T.N., (1975) 1 SCC 152, wherein it has been laid down that: (SCC p. 154, para 2)

“2. … A person aggrieved by an order of promoting a junior over his head should  approach  the  Court  at  least within six months or at the most a year  of  such  promotion.  It  is  not that  there  is  any  period  of limitation for the courts to exercise their powers under Article 226 nor is it that there can never be a case where the courts cannot interfere in a  matter  after  the  passage  of  a certain length of time. But it would be  a  sound  and  wise  exercise  of discretion for the courts to refuse to  exercise  their  extraordinary powers under Article 226 in the case of  persons  who  do  not  approach  it expeditiously  for  relief  and  who stand by and allow things to happen and then approach the Court to put forward  stale  claims  and  try  to unsettle settled matters.”

28. Remaining  oblivious  to  the  factum  of delay  and  laches  and  granting  relief  is contrary to all settled principles and even

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would not remotely attract the concept of discretion. We may hasten to add that the same  may  not  be  applicable  in  all circumstances  where  certain  categories  of fundamental  rights  are  infringed.  But,  a stale claim of getting promotional benefits definitely should not have been entertained by the Tribunal and accepted by the High Court.”

16. On the preposition as noticed above, it is clear

that the claim of the applicant for inclusion of her

name in the panel, which was issued on 09.01.2001 and

for the first time was raked up by her, by filing

representation on 25.09.2007, i.e., after more than

06  and  half  years.  The  claim  of  inclusion  in  the

panel had become stale by that time and filing of

representation  will  not  give  any  fresh  cause  of

action.   Thus,  mere  fact  that  representation  was

replied  by  Railways  on  27.12.2007,  a  stale  claim

shall not become a live claim.  Both Tribunal and

High Court did not advert to this important aspect of

the  matter.   It  is  further  to  be  noted  from  the

material on record that after declaration of panel on

09.01.2001,  there  were  further  selection  under  30%

promotion  by  LDCE  quota,  in  which  the  applicant

participated.  In  selection  held  in  2005  she

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participated  and  was  declared  unsuccessful.   With

regard  to  her  non-inclusion  in  panel  in  2005

selection, she also filed O.A. No. 629 of 2006 before

the  Tribunal,  which  was  dismissed.   After

participating  in  subsequent  selections  under  30%

quota and being declared unsuccessful, by mere filing

representation on 27.09.2007 with regard to selection

made in 2001, the delay and laches shall not be wiped

out.   

17. There is one more aspect of the matter, which

need to be noted.  The applicant was well aware that

under 30% LDCE quota, out of 05 vacancies, 04 are

unreserved and 01 is reserved, which was circulated

by notification dated 14.10.1999. She applied against

the said bifurcated vacancies and was interviewed on

08.01.2001, panel of which was declared on 09.01.2001

and promotion was made on the same day. She having

participated in the selection for promotion under 30%

LDCE quota and the bifurcation of the vacancies being

part of the process of selection, it was not open for

her to challenge the bifurcation of vacancies into

general and reserved after taking a chance to get

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selected.   In  this  context,  reference  is  made  to

judgment of this Court in Ashok Kumar and Another Vs.

State of Bihar and Others, (2017) 4 SCC 357.  This

Court  after  referring  to  several  earlier  judgments

have laid down following in Paragraph Nos. 13 to 18:-

“13. The  law  on  the  subject  has  been crystallised in several decisions of this Court.  In  Chandra  Prakash  Tiwari v. Shakuntala Shukla, (2002) 6 SCC 127, this Court laid down the principle that when a candidate appears at an examination without objection and is subsequently found to be not successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not  arise  where  a  candidate  has  appeared and  participated.  He  or  she  cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable. In  Union of India v.  S. Vinodh Kumar, (2007) 8 SCC 100, this Court held that: (SCC p. 107, para 18)

“18.  It  is  also  well  settled  that those candidates who had taken part in  the  selection  process  knowing fully  well  the  procedure  laid  down therein were not entitled to question the  same.  (See  Munindra  Kumar v. Rajiv  Govil,  (1991)  3  SCC  368 and Rashmi Mishra v. M.P. Public Service Commission, (2006) 12 SCC 724.)”

14. The same view was reiterated in  Amlan Jyoti Borooah, (2009) 3 SCC 227, wherein it was  held  to  be  well  settled  that  the candidates  who  have  taken  part  in  a selection  process  knowing  fully  well  the

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procedure  laid  down  therein  are  not entitled to question it upon being declared to be unsuccessful.

15. In  Manish  Kumar  Shahi v.  State  of Bihar,  (2010)  12  SCC  576,  the  same principle was reiterated in the following observations: (SCC p. 584, para 16)

“16.  We  also  agree  with  the  High Court that after having taken part in the  process  of  selection  knowing fully well that more than 19% marks have  been  earmarked  for  viva  voce test, the petitioner is not entitled to challenge the criteria or process of  selection.  Surely,  if  the petitioner’s name had appeared in the merit list, he would not have even dreamed of challenging the selection. The  petitioner  invoked  jurisdiction of the High Court under Article 226 of  the  Constitution  of  India  only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner  clearly  disentitles  him from  questioning  the  selection  and the  High  Court  did  not  commit  any error  by  refusing  to  entertain  the writ  petition.  Reference  in  this connection  may  be  made  to  the judgments in  Madan Lal v.  State of J&K,  (1995)  3  SCC  486,  Marripati Nagaraja v. State of A.P., (2007) 11 SCC 522, Dhananjay Malik v. State of Uttaranchal, (2008) 4 SCC 171, Amlan Jyoti  Borooah v.  State  of  Assam, (2009) 3 SCC 327 and K.A. Nagamani v. Indian Airlines, (2009) 5 SCC 515.”

16. In  Vijendra  Kumar  Verma v.  Public Service  Commission,  (2011)  1  SCC  150,

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candidates  who  had  participated  in  the selection process were aware that they were required  to  possess  certain  specific qualifications in computer operations. The appellants  had  appeared  in  the  selection process  and  after  participating  in  the interview sought to challenge the selection process as being without jurisdiction. This was held to be impermissible.

17. In  Ramesh Chandra Shah v.  Anil Joshi, (2013)  11  SCC  309,  candidates  who  were competing for the post of Physiotherapist in the State of Uttarakhand participated in a written examination held in pursuance of an advertisement. This Court held that if they had cleared the test, the respondents would not have raised any objection to the selection  process  or  to  the  methodology adopted.  Having  taken  a  chance  of selection, it was held that the respondents were  disentitled  to  seek  relief  under Article  226  and  would  be  deemed  to  have waived  their  right  to  challenge  the advertisement  or  the  procedure  of selection.  This  Court  held  that:  (SCC  p. 318, para 18)

“18. It is settled law that a person who  consciously  takes  part  in  the process  of  selection  cannot, thereafter, turn around and question the  method  of  selection  and  its outcome.”

18. In  Chandigarh  Admn. v.  Jasmine  Kaur, (2014)  10  SCC  521,  it  was  held  that  a candidate  who  takes  a  calculated  risk  or chance by subjecting himself or herself to the  selection  process  cannot  turn  around and complain that the process of selection was unfair after knowing of his or her non- selection. In  Pradeep Kumar Rai v.  Dinesh Kumar Pandey, (2015) 11 SCC 493, this Court held that: (SCC p. 500, para 17)

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“17. Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the process of interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However, the appellants  did  not  challenge  it  at that time. This, it appears that only when the appellants found themselves to be unsuccessful, they challenged the  interview.  This  cannot  be allowed.  The  candidates  cannot approbate and reprobate at the same time.  Either  the  candidates  should not  have  participated  in  the interview  and  challenged  the procedure  or  they  should  have challenged  immediately  after  the interviews were conducted.”

This  principle  has  been  reiterated  in  a recent  judgment  in  Madras  Institute  of Development Studies v. K. Sivasubramaniyan, (2016) 1 SCC 454”.

18. We, thus, due to the above both the reasons, are

of  the  view  that  the  Tribunal  and  the  High  Court

ought not to have entertained the stale claim of the

applicant.  

Issue No.2

19. Issue  No.2  pertains  to  calculation  of  the

vacancies.   Before  the  Tribunal,  an  affidavit  was

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filed  by  Deputy  Chief  Personnel  Officer,  Southern

Railway explaining the determination of vacancies for

selection.   The  affidavit  is  on  the  record.   The

affidavit indicates that in selection for the period

01.10.1996 to 30.09.1998, total vacancies calculated

were 18, out of which 13 was allocated to 70% regular

selection  and  05  vacancies  to  30%  LDCE  quota.

Initially, the calculation sheet with regard to 30%

LDCE quota shown all 05 vacancies as unreserved but

when Nodal Officer examined the same, he was of the

view that vacancies to be consumed under 30% LDCE

quota should be from point No.10 to 14 and Point No.

14  is  reserved  for  SC.   The  calculation  further

indicates that two SC candidates Shri A. Balachander

and Shri J. Senguttuvan were already working.  Thus,

05 vacancies were to be reserved for SC candidates

out of cadre of 37.  Two SC candidates being already

working  there  was  shortfall  of  03,  for  which  02

vacancies were earmarked under 70% and 01 under 30%.

In this context, reference to Paragraph No. 8 to 12

of the affidavit is relevant, which are as follows:-

“8. However, the above distribution was made as if the roster point accrues from point

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number 9 to 13 of the roster (all these roster  points  are  UR)  for  30%  selection. Whereas  the  9th point  has  already  been consumed by Shri Srinivasa Raghavan who was selected  and  empaneled  during  1996-97. Therefore, the actual point to be consumed should be from Point No.10 to 14 of which point No. 10 to 13 are UR, and 14th point reserved for SC.

9. I submit that as per procedure involved in the second stage this proposal was put up to Senior Personnel Officer/Reservation for his verification on the application of reservation  rules.   Senior  Personnel Officer/Reservation  noticed  that  the accrual of points should be 10 to 14 (14th

point  reserved  for  SC)  and  not  as  Point No.9  to  13  and  he  amended  the  proposal (Annexure-R.10) as under:-

TOTAL UR SC ST for  70%  Regular Selection 18X70            100

13@ 10 2 1

@ as per 40 point roster, the point to be consumed was No.12 to 24 which includes 25C (Point No.14 & 22) and 1 ST point (Point No.17) (Annexure-A.6-page No.34 of the OA)

TOTAL UR SC ST for 30% LDCE 18X30               100

5$ 4 1 --

$ as per 40 point roster, the point to be consumed was No.10 to 14 which includes 1 SC (Point No.14)(Annexure-A.6-page No.32 of the OA)

The  amended  proposal  was  submitted  to the  General  Manager  through  the  Chief Liaison  Officer  viz.  Chief  Personnel Officer.  

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10. I submit that as per the 3rd stage the vetted figure as shown below was approved by  the  competent  authority  viz.  General Manager  on  24.10.1996  and  notified accordingly:   

TOTAL UR SC ST for  70%  Regular Selection 18X70            100

13@ 10 2 1

for 30% LDCE 18X30               100

5$ 4 1 --

11. I  submit  that  the  requirement  of reservation in APO cadre was as under:

Cadre Strength

Required Reservation

Available Cadre Shortfall

SC (15%)

ST (7.5%)

SC ST SC ST

37 5 3 2 1 3 2 (Annexure-A.5-page No.31 of the OA)

Accordingly,  as  per  requirement  of reservation in the cadre the distribution of 18 vacancies among UR/SC/ST would be as follows:-

UR SC ST TOTAL 13 3 2 18

Further,  the  shortfall  of  SC  was distributed among 70% and 30% selections as under by following roster:

UR SC ST TOTAL For  70%  Regular selection

10 2 1 13

For 30% LDCE 4 1 -- 5 Total 14 3 1 18

12. I submit that the selection for the post of Assistant Personnel Officer through 30%

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Limited  Departmental  Competitive Examination  is  a  part  of  70%  regular selection.   Therefore,  the  assessment  of vacancies of the 70% regular selection and Limited  Departmental  Competitive Examination  30%  has  to  be  taken  for  the period  from  01.10.1996  to  30.09.1998  and there is no provision for taking vacancies accrued  after  01.10.1998.   Though  the selection  for  the  post  of  Assistant Personnel  Officer  through  Limited Departmental  Competitive  Examination  held during  2001,  while  regular  70%  selection held  during  1998,  the  assessment  of vacancies is limited up to 30.09.1998 and vacancies  accrued  after  01.10.1998  were taken only for subsequent selection.”    

20. The Tribunal took the view that there being 02 SC

candidates already available under 30% LDCE quota, no

further vacancy ought to have been allocated under

30% quota for SC.   

21. The  Tribunal  and  the  High  Court  both  have

observed that any vacancy coming after the relevant

period  ought  not  to  have  been  taken.   Those

observations were in context of vacancy, which arose

due to promotion of A. Balchandar on 03.01.2001.  In

the affidavit, in Paragraph No. 12, it was clearly

mentioned that assessment of vacancies is limited up

to 30.09.1998 and vacancies accrued after 01.10.1998

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were taken only for subsequent selection.  Thus, it

is clear that in computation for vacancies under 30%,

no vacancy, which had arisen out of relevant period

was taken.  Learned counsel for the applicant has

much emphasized that under 30% both, i.e., Shri A.

Balachander and Shri J. Senguttuvan being available,

there could not have been 01 further vacancy reserved

for Sc.  In this context, Paragraph No. 8 of the

affidavit as noticed above is relevant, where it is

mentioned that the roster point from point number 9

to 13 of the roster was for 30% selection. But 9th

point having already been consumed by Shri Srinivas

Raghavan, who was selected and empaneled during 1996-

97, therefore, the actual point to be consumed should

be  from  point  No.  10  to  14.   Point  No.  14  being

reserved  for  SC,  05  vacancies  but  30%  quota  were

distributed accordingly and out of which 01 vacancy

was  allocated  to  SC.   Thus,  there  was  plausible

explanation for determination of vacancies given by

the Railways.  The explanation with regard to roster

point as given by the Railways has not been adverted

to by High Court or Tribunal.  We, thus, are of the

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view that explanation by the Railway was a plausible

explanation, which was not such as to give a cause

for interference by the Tribunal and the High Court.

Thus, we are of the view that the above ground for

interference as given by the Tribunal and the High

Court is unsustainable.   

22. At last, the learned counsel for the applicant

has submitted that although applicant has retired on

31.05.2015 but due to pendency of these litigations,

her retirement benefits have not been finalized. The

applicant having retired on 31.05.2015 there was no

impediment to compute and pay her retirement benefits

without prejudice to the claim of Railways. The delay

in payment of retiral benefits has to be compensated

by directing payment of interest.  

23. We  are  thus  of  the  view  that  applicant  was

entitled for retiral benefits immediately after the

date of retirement.  We direct Respondent Nos.1 to 4

in Writ Petition (C)No.653 of 2015 to determine and

pay the retirement benefits to the applicant, if not

already  paid,  within  a  period  of  02  months  from

today.  We further direct that applicant should be

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paid interest @ 8% p.a. on retirement benefits after

one month of retirement i.e. w.e.f. 01.07.2015, till

the  payment  is  made  of  the  retiral  benefits.   In

result, the Civil Appeal No. 1577 of 2019 and Civil

Appeal  No.  1578  of  2019  are  allowed  and  the  Writ

Petition (C) No. 653 of 2015 is disposed of with the

aforesaid directions.

......................J.                              (ASHOK BHUSHAN )

......................J.                              (K.M. JOSEPH )

New Delhi,  February 13, 2019.        

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