Hon'ble Mr. Justice Ashok Bhushan
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
1
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
2
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
3
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
4
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
5
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.
7
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
8
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
9
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 9
th respondent cannot be
10
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?
11
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,
12
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
13
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,
14
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
15
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
17
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
18
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
19
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
20
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,
21
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 nonselection. In Pradeep Kumar Rai v. Dinesh
Kumar Pandey, (2015) 11 SCC 493, this Court
held that: (SCC p. 500, para 17)
22
“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
23
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
24
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
27
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
28
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
29
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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