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 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.


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.

  1. 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.
  2. 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
    6
    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.
  15. 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.”
  16. 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.”
  17. 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.”
  18. 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.
  19. 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.)”
  20. 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.
  21. 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.”
  22. 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.
  23. 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.”
  24. 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”.
  25. 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
  26. 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.
  27. 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.
    25
  28. 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 —
  29. 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
  30. I submit that the selection for the post
    of Assistant Personnel Officer through 30%
    26
    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.”
  31. 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.
  32. 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.
  33. 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.
  34. 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.
30