UNION OF INDIA & ORS. versus C. GIRIJA & ORS.

UNION OF INDIA & ORS.

C. GIRIJA & ORS.

(Civil Appeal No. 1577 of 2019)

FEBRUARY 13, 2019

[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]

Service law: Promotion – Belated representation –Notification inviting applications for filling up of 05 posts under30% LDCE quota (04 unreserved and 01 reserved for SC) –Declaration of Panel on 09.01.2001 – Applicant-general categorycandidate seeking inclusion of her name in the Panel for promotionas APO – Submission of representation by appellant on 25.09.2007seeking inclusion of her name in the panel – Representationrejected – However, direction by the tribunal and the High Courtfor inclusion of the name of the applicant in the panel – On appeal,held: Claim of the applicant for inclusion of her name in the panel,was raked up by her for the first time on 25.09.2007, after morethan 06 and half years – Claim became stale by that time and filingof representation will not give any fresh cause of action –Thus, mere fact that representation was replied by the Railways on27.12.2007, stale claim would not become live claim –After participating in subsequent selections under 30% quota andbeing declared unsuccessful, by mere filing representation on25.09.2007 with regard to selection made in 2001, the delay andlaches shall not be wiped out – Tribunal and the High Court oughtnot to have entertained the stale claim of the applicant – As regardsthe issue that under 30% quota of LDCE, all the 05 vacancies oughtto have been made unreserved and notification dated 14.10.1999making 04 vacancies unreserved and 01 vacancy reserved for SCwas illegal, the explanation by the Railway was plausibleexplanation, which was not such as to give cause for interferenceby the tribunal and the High Court – Delay and laches.

Allowing the appeals and disposing of the writ petitions,the Court

HELD: 1.1 The claim of the applicant for inclusion of hername in the panel, which was issued on 09.01.2001 and for thefirst time was raked up by her, by filing representation on

A25.09.2007, i.e., after more than 06 and half years. The claim ofinclusion in the panel had become stale by that time and filing ofrepresentation will not give any fresh cause of action. Thus, merefact that representation was replied by Railways on 27.12.2007, astale claim shall not become live claim. Both tribunal and HighCourt did not advert to this important aspect of the matter.BFurthermore, after declaration of panel on 09.01.2001, there werefurther selection under 30% promotion by LDCE quota, in whichthe applicant participated. In selection held in 2005 sheparticipated and was declared unsuccessful. With regard to hernon-inclusion in panel in 2005 selection, she also filed O.A. beforeCthe tribunal, which was dismissed. After participating insubsequent selections under 30% quota and being declaredunsuccessful, by mere filing representation on 27.09.2007 withregard to selection made in 2001, the delay and laches shall notbe wiped out.[Para 16][142-F-H, 143-A-B]

D1.2 The applicant was well aware that under 30% LDCEquota, out of 05 vacancies, 04 are unreserved and 01 is reserved,which was circulated by notification dated 14.10.1999. She appliedagainst the said bifurcated vacancies and was interviewed on08.01.2001, panel of which was declared on 09.01.2001 andpromotion was made on the same day. She having participated inEthe selection for promotion under 30% LDCE quota and thebifurcation of the vacancies being part of the process of selection,it was not open for her to challenge the bifurcation ofvacancies into general and reserved after taking chance to getselected. Thus, tribunal and the High Court ought notFto have entertained the stale claim of the applicant.[Paras 17, 18][143-B-C, 146-A-B]C.Jacob v. Director of Geology and Mining and Another(2008) 10 SCC 115 : [2008] 14 SCR 634; Union ofIndia and Others v. M.K. Sarkar (2010) 2 SCC 59 :[2009] 16 SCR 249; State of Uttaranchal andGAnother v. Shiv Charan Singh Bhandari and Others(2013) 12 SCC 179 : [2013] 9 SCR 609; P.S.Sadasivaswamy v. State of Tamil Nadu (1975) 1 SCC152 : [1975] 2 SCR 356; Ashok Kumar and Anotherv. State of Bihar and Others (2017) 4 SCC 357 :H[2016] 8 SCR 815 – referred to.

2.1 The tribunal and the High Court both observed thatany vacancy coming after the relevant period ought not to havebeen taken. Those observations were in context of vacancy, whicharose due to promotion of AB on 03.01.2001. In the affidavit, itwas clearly mentioned that assessment of vacancies is limited upto 30.09.1998 and vacancies accrued after 01.10.1998 were takenonly for subsequent selection. Thus, it is clear that in computationfor vacancies under 30%, no vacancy, which had arisen out ofrelevant period was taken. Applicant submitted that under 30%both, AB and JS being available, there could not have been 01further vacancy reserved for SC. In the affidavit, it was mentionedthat the roster point from point number 9 to 13 of the roster wasfor 30% selection. But 9[th] point having already been consumedby SR, who was selected and empaneled during 1996-97,therefore, the actual point to be consumed should be from pointNo. 10 to 14. Point No. 14 being reserved for SC, 05 vacanciesbut 30% quota were distributed accordingly and out of which 01vacancy was allocated to SC. Thus, there was plausible explanationfor determination of vacancies given by the Railways. Theexplanation with regard to roster point as given by the Railwayshas not been adverted to by High Court or tribunal. Thus, theexplanation by the Railway was plausible explanation, whichwas not such as to give cause for interference by the tribunaland the High Court. Thus, the above ground for interference asgiven by the tribunal and the High Court is unsustainable.[Para 21][148-F-H, 149-A-B]

2.2 The applicant having retired on 31.05.2015 there wasno impediment to compute and pay her retirement benefitswithout prejudice to the claim of Railways. The delay in paymentof retiral benefits has to be compensated by directing payment ofinterest. Thus, the applicant was entitled for retiral benefitsimmediately after the date of retirement. Respondent Nos.1 to 4in the Writ Petition are directed to determine and pay theretirement benefits to the applicant, if not already paid, withinthe stipulated period. The applicant is directed to paid interest@ 8% p.a. on retirement benefits after one month of retirementi.e. w.e.f. 01.07.2015, till the payment is made of the retiral benefits.[Paras 22, 23][149-D-F]

Case Law Reference

CIVIL APPELLATE/ORIGINAL JURISDICTION : CivilAppeal No. 1577 of 2019.

From the Judgment and Order dated 06.02.2015 of the HighCourt of Kerala, Ernakulam in OP (CAT) No. 925 of 2012 (Z).

With

Civil Appeal No. 1578 of 2019, W.P. (C) No. 653 of 2015.

K. M. Nataraj, ASG, Ms. Alka Agrawal, Anmol Chandan,DRaj Bahadur, Mrs. Anil Katiyar, K. B. Sounder Rajan, K. Nakickaraj,Sudarshan Rajan, Mahesh Kumar, Amit Sharma, Dipesh Sinha, Ms. AyialaImti, Advs. for the Appearing Parties.

The Judgment of the Court was delivered by

EASHOK BHUSHAN, J.

1. Two appeals, one by Union of India and one by MeenaBhaskar, have been filed against the Division Bench judgment of theKerala High Court dated 06.02.2015. The writ petition under Article 32has been filed by C. Girija seeking direction to implement the order passedFby the Division Bench of the High Court and the order of the CentralAdministrative Tribunal in her favour.

2. Brief facts necessary to be noted for deciding these appealsand writ petition are:

The Southern Railway, Divisional Office, Personnel BranchGissued notification dated 14.10.1999 for selection of group ‘C’ employeeto Group ‘B’ within 30% quota by LDCE in Personnel Department. Thenotification intimated total 5 vacancies(4 unreserved and 1 SC) to befilled up by limited competitive Departmental examination under 30%quota. Smt. C.Girija working as Office Superintendent Grade I, PersonalHBranch, Southern Railway submitted her candidature as unreserved

category candidate. Smt. Meena Bhaskar also submitted her candidatureas reserved (SC) candidate. On 09.01.2001 after written test and vivavoce select panel was issued which did not include name of C.Girijaagainst 4 unreserved posts. Name of Meena Bhaskar was shown asselected candidate against one SC post. According to her marks C.Girijawas placed at the panel as fifth candidate in unreserved category.Promotion orders were issued on 09.01.2001, candidates those includedin the panel were promoted as Assistant Personal Officer. Panel for70% 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 vacanciesrelate 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 employeesand excluding two junior unreserved employees. Subsequently, on05.09.2007 panel dated 20.06.2007 was again revised adjusting twounreserved employees. The applicant C.Girija submitted representationto the General Manager, Southern Railway, Chennai dated 25.09.2007requesting for her inclusion and promotion against the post of APO against30% quota in the panel drawn on 09.01.2001. In her representation theapplicant referred to revision of the panel of 70% quota by order dated20.06.2007 and 05.09.2007. The applicant in her representation also statedthat reserving one post for SC, against 30% quota was against the norms.The representation submitted by the applicant dated 25.09.2007 wasreplied by the General Manager vide letter dated 27.12.2007. The GeneralManager in his reply stated that the orders issued by the Railways on20.06.2007 and 05.09.2007 were relating to 70% quota with whichapplicant has no concern. With regard to 5 posts under 30% quota it wasstated that selection was finalised on 09.01.2001 as per the reservationrules prevalent at the relevant time. The appellant aggrieved by thecommunication dated 27.12.2007 filed O.A. No.466 of 2009 before theCentral Administrative Tribunal, Ernakulam in which the applicant Smt.Meena Bhaskar,the selected candidate was impleadedas respondentNo.9. Before the Tribunal the respondents filed their reply. The Tribunalafter considering the material on record disposed of the matter vide itsjudgment and order dated 09.11.2011. There was delay of 560 days infiling the O.A., the Tribunal condoned the delay and decided the O.A.by passing the following order in paragraphs 11 & 12:

DEFG

A“11.Annexure A-I dated 27.12.2007 is quashed. Therespondents are directed to include the applicant in AnnexureA-2 panel on the basis of her qualifying marks and to promoteher notionally with effect from the date the 9[th] respondent hasbeen promoted to the post of Assistant Personnel Officer. Theapplicant should be placed above the 9[th] respondent in theBseniority list of APO for the year 2001. The applicant shouldbe given regular posting as APO within period of 60 daysfrom the date of receipt of copy of this order. The 9[th]respondent who will be displaced from the Annexure A-2 panelshould be adjusted against any vacancy that arose subsequentCto Annexure A-2. The period from the date of promotion ofthe respondent No.9 in 2001 to the date her adjustment on aregular vacancy should be regularised and appropriate ordersin this regard also should be issued within the time stipulatedabove.

D12. No order as to costs.”

3. Against the order of the Tribunal, 9[th] Respondent, MeenaBhaskar filed Original Petition before the High Court of Kerala beingO.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 judgmentEdated 03.04.2012 remanded the matter to the Tribunal for freshconsideration of the relevant issues. Against the judgment of the HighCourt, 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 thematter to the High Court for determination of the controversy on meritsin accordance with law. In pursuance of the judgment of this CourtFdated 04.08.2014, the High Court heard the parties and by judgmentdated 06.02.2015 upheld the order of the Tribunal and dismissed theOriginal Petitions filed by the Union of India as well as Meena Bhaskar,the 9[th] Respondent. Aggrieved by the judgment of the High Court dated06.02.2015 Union of India as well as 9[th] Respondent have filed theseGtwo appeals. The parties shall be referred to as described before theTribunal.

4. Writ Petition No.653 of 2015 has been filed by the applicantC. Girija under Article 32 praying for direction to the respondent to fixthe pay of the petitioner as per the direction of the Tribunal dated09.11.2014 as upheld by the High Court. The applicant in writ petitionH

has also claimed for direction directing the respondent to pay her fullretiral benefits along with interest since she retired on 31st May, 2015.

5. Shri K.M. Nataraj, learned ASG appearing for Union of Indiasubmitted that the claim of applicant of inclusion in the Panel declaredon 09.01.2001 was barred by laches and delay. The Tribunal and HighCourt committed error in entertaining the claim of the applicant andissuing direction for inclusion in panel. It is submitted that cause ofaction arose to applicant when the notification dated 14.10.1999 wasissued earmarking 05 vacancies under 30% LDCE quota, out of which04 were unreserved and 01 was reserved. The applicant participated inthe selection without raising any objection and it was only after morethan 06 years, she filed representation on 25.09.2007. By filing of therepresentation after more than 06 years, delay and laches cannot becondoned. The mere fact that the representation was replied on27.12.2007 shall not give any fresh cause of action to the applicant.6. Learned ASG submits that the applicant having participatedwithout raising any objection regarding allocation of 01 vacancy to SCcandidate, it was not open for her to challenge the same after such longdelay. Learned ASG further submitted that even on merits, the case ofthe applicant has no legs to stand. It is submitted that the cadre strengthbeing total 37, the total of existing vacancies, vacancies likely to arisewithin two years as well as 30% as construction reserve, total vacancieswere calculated as 18 and out of 18, 13 were allocated to 70% selectionand05 were allocated to 30% Limited Departmental CompetitiveExamination (LDCE). Out of 05, although initially under calculation 05were shown to be allocated to general category but after objection byNodal Officer, who was entrusted to implement the reservation, the 05vacancies were bifurcated into 04 unreserved and 01 reserved, whichwas approved by General Manager. Consequently, the notification wasissued on 14.10.1999 providing for 01 SC and 04 unreserved categoryvacancies.

7. Learned counsel appearing for the applicant refuting thesubmission of the learned ASG submits that there was no delay andlaches on the part of the applicant. Applicant’s husband has sent severalrepresentations right from 2002. The applicant came to know aboutseveral facts regarding irregularities in selection when the matter wasbeing investigated by CBI. The applicant when came to know aboutrelevant facts, she filed representation on 25.09.2007. The Tribunal had

Acondoned the delay of 560 days and allowed the O.A. on merits, hencequestion of delay cannot be pressed in service. It is further submittedthat under 30% LDCE quota, two SC category candidates were alreadyin place namely, Shri A. Balachander and Shri J. Senguttuvan, hence novacancy should have been allocated to SC quota under 30% selectionnotified on 14.10.1999. He submits that there was ample material beforeBthe Tribunal that above two SC category candidates being alreadyworking under 30% under SC quota, no vacancy should have beenallocated to 30% LDCE. He submits that in spite of direction of theTribunal and High Court, applicant never got promotion nor benefit ofany pay fixation. Applicant retired on 31.05.2015. Consequently, sheChad to file Writ Petition No. 653 of 2015seeking direction tocompute all her benefits of promotion and all retiral benefits on thepromoted post.

8. Learned counsel appearing for the 9[th] respondent adopts thesubmission made by learned ASG.Refuting the submission of the learnedDcounsel appearing for the applicant it is submitted that the case of theapplicant was highly delayed. Cause of action arose to the applicant on14.10.1999 and 09.01.2001 and the representation was submitted by herafter more than 06 years and by mere reply of the representation willnot give fresh cause of action to the applicant to rake up the matterbefore the Tribunal. In the Tribunal and the High Court, the plea ofEdelay and laches was pressed but both ignored the laches on the part ofthe applicant. On account of the promotion granted to the 9[th] respondenton 09.01.2001, the 9[th] respondent was entitled to sit back. The promotionhaving not been challenged within reasonable time, the promotion grantedto the 9[th] respondent cannot be adversely affected after such longFdelay. The findings recorded by the Tribunal and High Court on thequestion of allocation of vacancies were also perverse.

9. Learned counsel for the parties in support of their respectivesubmissions have relied on various judgments of this Court, which shallbe referred to while considering the submissions in detail.

G10. From the submissions of the learned counsel of the partiesand materials on record, following two issues arise for consideration:-(i) Whether the claim of the applicant to be included in thePanel dated 09.01.2001 for promotion as APO wasbarred by delay and laches?

(ii) Whether under 30% quota of LDCE, all the 05 vacanciesought to have been made unreserved and notificationdated 14.10.1999 making 04 vacancies unreserved and01 vacancy reserved for SC was illegal?

Issue No.1

11. There is no dispute between the parties that in thenotification dated 14.10.1999 inviting applications for filling up of05 posts under 30% LDCE quota, 04 vacancies were shown asunreserved and 01 as reserved for SC. The applicant submitted anapplication for participation in the selection but she could not beincluded against 04 unreserved vacancies, she being generalcategory candidate. There were certain complaints with regard toselection under 70% quota,with regard to which certain investigationswere going on, which could be finalized in 2007. Applicant for the firsttime submitted representation to General Manager, SouthernRailways on 25.09.2007 praying for inclusion of her name in the paneldated 09.01.2001. Copy of the representation filed by theapplicant has been brought on the record, which indicate thatapplicant has in her representation relied on certain orders issued on20.06.2007 and 05.09.2007 with regard to revision of the panel under70% selection quota. With regard to 30% quota to be filled throughLDCE, she stated that reserving 01 post for SC was totally against allnorms. Representation was replied by Railways on 27.12.2007 statingthat with regard to revision of the panel under 70% promotion quota, theapplicant is not party in any way. With regard to vacancy under 30%LDCE selection, it was indicated that the same was done as per theRules prevalent at that time. O.A. No. 466 of 2009 was filed thereafterby the applicant, which has been decided by the Tribunal. Tribunalcondoned the delay of 560 days in filing the O.A. The applicant haschallenged the communication dated 27.12.2007 of the Railways whichwas given in reply to the representation of the applicant. The condonationof delay, thus, only meant that against the letter dated 27.12.2007, herO.A. was held to be within time. The Tribunal and High Court has notadverted to the delay, which accrued from the declaration of panel on09.01.2001 and submitting her representation on 25.09.2007, i.e. aftermore than 06 years and 09 months.

BCDE

A12. This Court had occasion to consider the question of causeof action in reference to grievances pertaining to service matters. ThisCourt in C.Jacob Vs. Director of Geology and Mining and Another,(2008) 10 SCC 115 had occasion to consider the case where anemployee was terminated and after decades, he filed representation,Bwhich was decided. After decision of the representation, he filed anO.A. in the Tribunal, which was entertained and order was passed. Inthe above context, in paragraph No.9, following has been held:-“9. The courts/tribunals proceed on the assumption, that everycitizen deserves reply to his representation. Secondly, theyCassume that mere direction to consider and dispose of therepresentation does not involve any “decision” on rights andobligations of parties. Little do they realise the consequencesof such direction to “consider”. If the representation isconsidered and accepted, the ex-employee gets relief, whichDhe would not have got on account of the long delay, all byreason of the direction to “consider”. If the representation isconsidered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of actionof 1982, but by treating the rejection of the representation givenin 2000, as the cause of action. prayer is made for quashingEthe rejection of representation and for grant of the relief claimedin the representation. The tribunals/High Courts routinelyentertain such applications/petitions ignoring the huge delaypreceding the representation, and proceed to examine the claimon merits and grant relief. In this manner, the bar of limitationFor the laches gets obliterated or ignored.”

13. This Court again in the case of Union of India and OthersVs. M.K. Sarkar, (2010) 2 SCC 59 on belated representation laiddown following, which is extracted below:-

“15. When belated representation in regard to “stale” or“dead” issue/dispute is considered and decided, in compliancewith direction by the court/tribunal to do so, the date of suchdecision cannot be considered as furnishing fresh cause ofaction for reviving the “dead” issue or time-barred dispute.The issue of limitation or delay and laches should be consideredwith reference to the original cause of action and not with

reference to the date on which an order is passed in compliancewith court’s direction. Neither court’s direction to considera representation issued without examining the merits, nor adecision given in compliance with such direction, will extendthe 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 hadoccasion to consider question of delay in challenging the promotion. TheCourt further held thatrepresentations relating to stale claim or deadgrievance does not give rise to fresh cause of action. In ParagraphNos. 19 and 23 following was laid down:-

“19. From the aforesaid authorities it is clear as crystal thateven if the court or tribunal directs for consideration ofrepresentations relating to stale claim or dead grievance itdoes not give rise to fresh cause of action. The dead causeof action cannot rise like phoenix. Similarly, mere submissionof representation to the competent authority does not arresttime.

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

“16. … filing of representations alone would not savethe period of limitation. Delay or laches is relevantfactor for court of law to determine the question as towhether the claim made by an applicant deservesconsideration. Delay and/or laches on the part of agovernment servant may deprive him of the benefitwhich had been given to others. Article 14 of theConstitution of India would not, in situation of thatnature, 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 P.S.Sadasivaswamy Vs. State of Tamil Nadu, (1975) 1 SCC 152 noticedthat person aggrieved by an order of promoting junior over his headshould approach the Court at least within six months or at the most ayear of such promotion. In Paragraph No. 26 and 28, following was laiddown:-

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

“2. … person aggrieved by an order of promoting ajunior over his head should approach the Court at leastwithin six months or at the most year of suchpromotion. It is not that there is any period of limitationfor the courts to exercise their powers under Article226 nor is it that there can never be case where thecourts cannot interfere in matter after the passage ofa certain length of time. But it would be sound andwise exercise of discretion for the courts to refuse toexercise their extraordinary powers under Article 226in the case of persons who do not approach itexpeditiously for relief and who stand by and allow thingsto happen and then approach the Court to put forwardstale claims and try to unsettle settled matters.”

28. Remaining oblivious to the factum of delay and laches andgranting relief is contrary to all settled principles and even wouldnot remotely attract the concept of discretion. We may hastento add that the same may not be applicable in all circumstanceswhere certain categories of fundamental rights are infringed.But, stale claim of getting promotional benefits definitelyshould not have been entertained by the Tribunal and acceptedby the High Court.”

16. On the preposition as noticed above, it is clear that the claimFof the applicant for inclusion of her name in the panel, which was issuedon 09.01.2001 and for the first time was raked up by her,by filingrepresentation on 25.09.2007, i.e., aftermore than 06 and half years.Theclaim of inclusion in the panel had become stale by that time and filing ofrepresentation will not give any fresh cause of action. Thus, mere factGthat representation was replied by Railways on 27.12.2007, stale claimshall not become live claim. Both Tribunal and High Court did notadvert to this important aspect of the matter. It is further to be notedfrom the material on record that after declaration of panel on 09.01.2001,there were further selection under 30% promotion by LDCE quota, inwhich the applicant participated.In selection held in 2005 she participated

and was declared unsuccessful. With regard to her non-inclusion inpanelin 2005 selection, she also filed O.A. No. 629 of 2006before theTribunal, which was dismissed. After participating in subsequentselections under 30% quota and being declared unsuccessful, by merefiling 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 benoted. The applicant was well aware that under 30% LDCE quota, outof 05 vacancies, 04 are unreserved and 01 is reserved, which wascirculated by notification dated 14.10.1999. She applied against the saidbifurcated vacancies and was interviewed on 08.01.2001, panel of whichwas declared on 09.01.2001 and promotion was made on the same day.She having participated in the selection for promotion under 30% LDCEquota and the bifurcation of the vacancies being part of the process ofselection, it was not open for her to challenge the bifurcation of vacanciesinto general and reserved after taking chance to get selected. In thiscontext, reference is made to judgment of this Court in Ashok Kumarand Another Vs. State of Bihar and Others, (2017) 4 SCC 357.This Court after referring to several earlier judgments have laid downfollowing in Paragraph Nos. 13 to 18:-

“13. The law on the subject has been crystallised in severaldecisions of this Court. In Chandra Prakash Tiwari v.Shakuntala Shukla, (2002) 6 SCC 127, this Court laid downthe principle that when candidate appears at an examinationwithout objection and is subsequently found to be not successful,a challenge to the process is precluded. The question ofentertaining petition challenging an examination would notarise where candidate has appeared and participated. He orshe cannot subsequently turn around and contend that theprocess was unfair or that there was lacuna therein, merelybecause the result is not palatable. In Union of India v. S.Vinodh Kumar, (2007) 8 SCC 100, this Court held that: (SCCp. 107, para 18)

“18. It is also well settled that those candidates whohad taken part in the selection process knowing fullywell the procedure laid down therein were not entitledto question the same. (See Munindra Kumar v. RajivGovil, (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 thatthe candidates who have taken part in selection processknowing fully well the procedure laid down therein are notentitled to question it upon being declared to be unsuccessful.

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

“16. We also agree with the High Court that after havingtaken part in the process of selection knowing fully wellthat more than 19% marks have been earmarked forviva voce test, the petitioner is not entitled to challengethe criteria or process of selection. Surely, if thepetitioner’s name had appeared in the merit list, he wouldnot have even dreamed of challenging the selection. Thepetitioner invoked jurisdiction of the High Court underArticle 226 of the Constitution of India only after hefound that his name does not figure in the merit listprepared by the Commission. This conduct of thepetitioner clearly disentitles him from questioning theselection and the High Court did not commit any errorby refusing to entertain the writ petition. Reference inthis connection may be made to the judgments in MadanLal v. State of J&K, (1995) 3 SCC 486,MarripatiNagaraja v. State of A.P., (2007) 11 SCC522,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. IndianAirlines, (2009) 5 SCC 515.”

16. In Vijendra Kumar Verma v. Public Service Commission,(2011) 1 SCC 150, candidates who had participated in theselection process were aware that they were required topossess certain specific qualifications in computer operations.The appellants had appeared in the selection process and afterparticipating in the interview sought to challenge the selectionprocess as being without jurisdiction. This was held to beimpermissible.

17. In Ramesh Chandra Shah v. Anil Joshi, (2013) 11 SCC309, candidates who were competing for the post ofPhysiotherapist in the State of Uttarakhand participated in awritten examination held in pursuance of an advertisement.This Court held that if they had cleared the test, the respondentswould not have raised any objection to the selection process orto the methodology adopted. Having taken chance ofselection, it was held that the respondents were disentitled toseek relief under Article 226 and would be deemed to havewaived their right to challenge the advertisement or theprocedure of selection. This Court held that: (SCC p. 318, para18)

“18. It is settled law that person who consciously takespart in the process of selection cannot, thereafter, turnaround and question the method of selection and itsoutcome.”

18. In Chandigarh Admn. v. Jasmine Kaur, (2014) 10 SCC521, it was held that candidate who takes calculated risk orchance by subjecting himself or herself to the selection processcannot turn around and complain that the process of selectionwas unfair after knowing of his or her non-selection. In PradeepKumar Rai v. Dinesh Kumar Pandey, (2015) 11 SCC 493,this Court held that: (SCC p. 500, para 17)

“17. Moreover, we would concur with the DivisionBench on one more point that the appellants hadparticipated in the process of interview and notchallenged it till the results were declared. There was agap of almost four months between the interview anddeclaration of result. However, the appellants did notchallenge it at that time. This, it appears that only whenthe appellants found themselves to be unsuccessful, theychallenged the interview. This cannot be allowed. Thecandidates cannot approbate and reprobate at the sametime. Either the candidates should not have participatedin the interview and challenged the procedure or theyshould have challenged immediately after the interviewswere conducted.”

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

18. We, thus, due to the above both the reasons, are of the viewthat the Tribunal and the High Court ought not to have entertained theBstale claim of the applicant.

Issue No.2

19. Issue No.2 pertains to calculation of the vacancies. Beforethe Tribunal, an affidavit was filed by Deputy ChiefPersonnel Officer,Southern Railway explaining the determination of vacancies for selection.CThe affidavit is on the record. The affidavit indicates that in selectionfor the period 01.10.1996 to 30.09.1998, total vacancies calculated were18, out of which 13 was allocated to 70% regular selection and 05vacancies to 30% LDCE quota. Initially, the calculation sheet with regardto 30% LDCE quota shown all 05 vacancies as unreserved but whenNodal Officer examined the same, he was of the view that vacancies toDbe consumed under 30% LDCE quota should be from point No.10 to 14and Point No. 14 is reserved for SC. The calculation further indicatesthat two SC candidates Shri A. Balachander and Shri J. Senguttuvanwerealready working. Thus, 05 vacancies were to be reserved for SCcandidates out of cadre of 37. Two SC candidates being already workingEthere was shortfall of 03, for which 02 vacancies were earmarked under70% and 01 under 30%. In this context, reference to Paragraph No. 8to 12 of the affidavit is relevant, which are as follows:-

“8. However, the above distribution was made as if the rosterpoint accrues from point number 9 to 13 of the roster (all theseroster points are UR) for 30% selection. Whereas the 9[th]Fpoint has already been consumed by Shri Srinivasa Raghavanwho was selected and empaneled during 1996-97. Therefore,the actual point to be consumed should be from Point No.10 to14 of which point No. 10 to 13 are UR, and 14[th] point reservedfor SC.

9. I submit that as per procedure involved in the second stagethis proposal was put up to Senior Personnel Officer/Reservation for his verification on the application of reservationrules. Senior Personnel Officer/Reservation noticed that theaccrual of points should be 10 to 14 (14[th] point reserved for

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

TOTALURSCSTfor 70 % Regular13@1021Selection18x70 100

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

TOTALURSCSTfor 30% LDCE 18x305$41-- 100

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

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

10. I submit that as per the 3[rd] stage the vetted figure as shownbelow was approved by the competent authority viz. GeneralManager on 24.10.1996 and notified accordingly:

TOTALURSCSTfor 70% Regular13@1021Selection18x70 100for 30% LDCE 18x305$41-- 100

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

CadreRequiredAvailableCadreStrengthReservationShortfallSCSTSCSTSCST(15%)(7.5%)37532132

(Annexure-A.5-page No.31 of the OA)

Accordingly, as per requirement of reservationin the cadre the distribution of 18 vacancies amongUR/SC/ST would be as follows:-

URSCSTTOTAL133218

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

URURSCTOTALFor 70% Regular102113selectionFor 30% LDCE41--5Total143118

12. I submit that the selection for the post of Assistant PersonnelOfficer through 30% Limited Departmental CompetitiveExamination is part of 70% regular selection. Therefore, theassessment of vacancies of the 70% regular selection andLimited Departmental Competitive Examination 30% has tobe taken for the period from 01.10.1996 to 30.09.1998 andthere is no provision for taking vacancies accrued after01.10.1998. Though the selection for the post of AssistantPersonnel Officer through Limited Departmental CompetitiveExamination held during 2001, while regular 70% selection heldduring 1998, the assessment of vacancies is limited up to30.09.1998 and vacancies accrued after 01.10.1998 were takenonly for subsequent selection.”

20. The Tribunal took the view that there being 02 SC candidatesalready available under 30% LDCE quota, no further vacancy ought tohave been allocated under 30% quota for SC.

21. The Tribunal and the High Court both have observed thatany vacancy coming after the relevant period ought not to have beentaken. Those observations were in context of vacancy, which arose dueto promotion of A. Balchandaron 03.01.2001. In the affidavit, inParagraph No. 12, it was clearly mentioned that assessment of vacanciesis limited up to 30.09.1998 and vacancies accrued after 01.10.1998 weretaken only for subsequent selection. Thus, it is clear that in computationfor vacancies under 30%, no vacancy, which had arisen out of relevantperiod was taken. Learned counsel for the applicant has muchemphasized that under 30% both, i.e., Shri A. Balachander and Shri J.Senguttuvan being available, there could not have been 01 further vacancyreserved for Sc. In this context, Paragraph No. 8 of the affidavit as

noticed above is relevant, where it is mentioned that the roster pointfrom point number 9 to 13 of the roster was for 30% selection. But 9[th]point having already been consumed by Shri Srinivas Raghavan, whowas selected and empaneled during 1996-97,therefore, the actual pointto be consumed should be from point No. 10 to 14. Point No. 14 beingreserved for SC, 05 vacancies but 30% quota were distributed accordinglyand out of which 01 vacancy was allocated to SC. Thus, there wasplausible explanation for determination of vacancies given by theRailways. The explanation with regard to roster point as given by theRailways has not been adverted to by High Court or Tribunal. We, thus,are of the view that explanation by the Railway was plausibleexplanation, which was not such as to give cause for interference bythe Tribunal and the High Court. Thus, we are of the view that theabove ground for interference as given by the Tribunal and the HighCourt is unsustainable.

22. At last, the learned counsel for the applicant has submittedthat although applicant has retired on 31.05.2015 but due to pendency ofthese litigations, her retirement benefits have not been finalized. Theapplicant having retired on 31.05.2015 there was no impediment tocompute and pay her retirement benefits without prejudice to the claimof Railways. The delay in payment of retiral benefits has to becompensated by directing payment of interest.

23. We are thus of the view that applicant was entitled for retiralbenefits immediately after the date of retirement. We direct RespondentNos.1 to 4 in Writ Petition (C)No.653 of 2015 to determine and pay theretirement benefits to the applicant, if not already paid, within period of02 months from today. We further direct that applicant should be paidinterest @ 8% p.a. on retirement benefitsafter one monthof retirementi.e. w.e.f. 01.07.2015, till the payment is made of the retiral benefits. Inresult, the Civil Appeal No. 1577 of 2019 and Civil Appeal No. 1578 of2019 are allowed and the Writ Petition (C) No. 653 of 2015 is disposedof with the aforesaid directions.

Nidhi Jain

Appeals allowed and Writ Petitions disposed of.