UNION OF INDIA & ORS.versusC. GIRIJA & ORS.

                        [2019] 2 S.C.R. 131                             131


                    UNION OF INDIA & ORS.                               A
                                 v.
                        C. GIRIJA & ORS.
                  (Civil Appeal No. 1577 of 2019)
                        FEBRUARY 13, 2019                               B
         [ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
        Service law: Promotion – Belated representation –
Notification inviting applications for filling up of 05 posts under
30% LDCE quota (04 unreserved and 01 reserved for SC) –
Declaration of Panel on 09.01.2001 – Applicant-general category         C
candidate seeking inclusion of her name in the Panel for promotion
as APO – Submission of representation by appellant on 25.09.2007
seeking inclusion of her name in the panel – Representation
rejected – However, direction by the tribunal and the High Court
for 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,    D
was raked up by her for the first time on 25.09.2007, after more
than 06 and half years – Claim became stale by that time and filing
of representation will not give any fresh cause of action –
Thus, mere fact that representation was replied by the Railways on
27.12.2007, a stale claim would not become a live claim –               E
After participating in subsequent selections under 30% quota and
being declared unsuccessful, by mere filing representation on
25.09.2007 with regard to selection made in 2001, the delay and
laches shall not be wiped out – Tribunal and the High Court ought
not to have entertained the stale claim of the applicant – As regards
the issue that under 30% quota of LDCE, all the 05 vacancies ought      F
to have been made unreserved and notification dated 14.10.1999
making 04 vacancies unreserved and 01 vacancy reserved for SC
was illegal, the 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 – Delay and laches.                  G
        Allowing the appeals and disposing of the writ petitions,
the Court
        HELD: 1.1 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
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A     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.
B
      Furthermore, 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
      participated and was declared unsuccessful. With regard to her
      non-inclusion in panel in 2005 selection, she also filed O.A. before
C     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.[Para 16][142-F-H, 143-A-B]
D             1.2 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
E     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
      selected. Thus, tribunal and the High Court ought not
F     to 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 of
            India and Others v. M.K. Sarkar (2010) 2 SCC 59 :
            [2009] 16 SCR 249; State of Uttaranchal and
G
            Another 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 SCC
            152 : [1975] 2 SCR 356; Ashok Kumar and Another
            v. State of Bihar and Others (2017) 4 SCC 357 :
H           [2016] 8 SCR 815 – referred to.
         UNION OF INDIA & ORS. v. C. GIRIJA & ORS.                          133


        2.1 The tribunal and the High Court both observed that              A
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 AB on 03.01.2001. In the affidavit, it
was clearly mentioned that assessment of vacancies is limited up
to 30.09.1998 and vacancies accrued after 01.10.1998 were taken
                                                                            B
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. Applicant submitted that under 30%
both, AB and JS being available, there could not have been 01
further vacancy reserved for SC. In the affidavit, it was mentioned
that the roster point from point number 9 to 13 of the roster was           C
for 30% selection. But 9th point having already been consumed
by SR, 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
                                                                            D
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. Thus, the
explanation by the Railway was a plausible explanation, which
was not such as to give a cause for interference by the tribunal            E
and the High Court. Thus, the above ground for interference as
given 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 was
no impediment to compute and pay her retirement benefits                    F
without prejudice to the claim of Railways. The delay in payment
of retiral benefits has to be compensated by directing payment of
interest. Thus, the applicant was entitled for retiral benefits
immediately after the date of retirement. Respondent Nos.1 to 4
in the Writ Petition are directed to determine and pay the
retirement benefits to the applicant, if not already paid, within           G
the stipulated period. The applicant is directed to 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.
[Paras 22, 23][149-D-F]
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A                              Case Law Reference
      [2008] 14 SCR 634                 referred to               Para 12
      [2009] 16 SCR 249                 referred to               Para 13
      [2013] 9 SCR 609                  referred to               Para 14
B     [1975] 2 SCR 356                  referred to               Para 15
      [2016] 8 SCR 815                  referred to               Para 17
             CIVIL APPELLATE/ORIGINAL JURISDICTION : Civil
      Appeal No. 1577 of 2019.
C             From the Judgment and Order dated 06.02.2015 of the High
      Court 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,
D
      Raj Bahadur, Mrs. Anil Katiyar, K. B. Sounder Rajan, K. Nakickaraj,
      Sudarshan Rajan, Mahesh Kumar, Amit Sharma, Dipesh Sinha, Ms. Ayiala
      Imti, Advs. for the Appearing Parties.
              The Judgment of the Court was delivered by
E             ASHOK BHUSHAN, J.
              1. 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 06.02.2015. The writ petition under Article 32
      has been filed by C. Girija seeking direction to implement the order passed
F     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
G     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
H     Branch, Southern Railway submitted her candidature as unreserved
         UNION OF INDIA & ORS. v. C. GIRIJA & ORS.                           135
                  [ASHOK BHUSHAN, J.]

category candidate. Smt. Meena Bhaskar also submitted her candidature        A
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 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.
                                                                             B
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,       C
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
                                                                             D
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
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.     E
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
                                                                             F
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 impleadedas respondent
No.9. Before the Tribunal the respondents filed their reply. The Tribunal    G
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 in
filing the O.A., the Tribunal condoned the delay and decided the O.A.
by passing the following order in paragraphs 11 & 12:
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136                SUPREME COURT REPORTS                      [2019] 2 S.C.R.


A               “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
B
                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
C               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.
D               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
E     dated 03.04.2012 remanded the matter to the 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
F     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
G     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
H
         UNION OF INDIA & ORS. v. C. GIRIJA & ORS.                            137
                  [ASHOK BHUSHAN, J.]

has also claimed for a direction directing the respondent to pay her full     A
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          B
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     C
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.
        6. Learned ASG submits that the applicant having participated
without raising any objection regarding allocation of 01 vacancy to SC        D
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      E
were calculated as 18 and out of 18, 13 were allocated to 70% selection
and05 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           F
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 refuting the
submission of the learned ASG submits that there was no delay and             G
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
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A     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
B
      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 fixation. Applicant retired on 31.05.2015. Consequently, she
C     had to file a Writ Petition No. 653 of 2015seeking 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
D     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
E     delay and laches was pressed but both ignored the laches on the part of
      the applicant. On account of the promotion granted to the 9 th respondent
      on 09.01.2001, the 9th respondent was entitled to sit back. The promotion
      having not been challenged within reasonable time, the promotion granted
      to the 9th respondent cannot be adversely affected after such a long
F     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.
G            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?

H
         UNION OF INDIA & ORS. v. C. GIRIJA & ORS.                           139
                  [ASHOK BHUSHAN, J.]

        (ii) Whether under 30% quota of LDCE, all the 05 vacancies           A
        ought to have been made unreserved and notification
        dated 14.10.1999 making 04 vacancies unreserved and
        01 vacancy reserved for SC was illegal?
Issue No.1
         11. There is no dispute between the parties that in the             B
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                C
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                    D
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, she stated that reserving 01 post for SC was totally against all       E
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           F
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         G
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.


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140                 SUPREME COURT REPORTS                       [2019] 2 S.C.R.


A             12. This Court had occasion to consider the question of cause
      of action in reference to grievances 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,
B     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
C               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
D               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
E               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, and proceed to examine the claim
                on merits and grant relief. In this manner, the bar of limitation
F               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
G              “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
H
         UNION OF INDIA & ORS. v. C. GIRIJA & ORS.                             141
                  [ASHOK BHUSHAN, J.]

          reference to the date on which an order is passed in compliance      A
          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.          B
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 thatrepresentations relating to a stale 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      C
          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         D
          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)                                                E
                 “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             F
                 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 P.S.               G
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:-                                                                         H
142                 SUPREME COURT REPORTS                        [2019] 2 S.C.R.


A               “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
B                      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
C                      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
D                      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 would
                not remotely attract the concept of discretion. We may hasten
E               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
F     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., aftermore 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
G     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 participated
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         UNION OF INDIA & ORS. v. C. GIRIJA & ORS.                             143
                  [ASHOK BHUSHAN, J.]

and was declared unsuccessful. With regard to her non-inclusion in             A
panelin 2005 selection, she also filed O.A. No. 629 of 2006before 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.
                                                                               B
         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.             C
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 selected. In this
context, reference is made to judgment of this Court in Ashok Kumar            D
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            E
          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         F
          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)
                                                                               G
                 “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.)”               H
144       SUPREME COURT REPORTS                      [2019] 2 S.C.R.


A     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 procedure laid down therein are not
      entitled to question it upon being declared to be unsuccessful.
B     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
C            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
D            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
E            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,
F            (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, candidates who had participated in the
      selection process were aware that they were required to
      possess certain specific qualifications in computer operations.
G     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.

H
UNION OF INDIA & ORS. v. C. GIRIJA & ORS.                            145
         [ASHOK BHUSHAN, J.]

17. In Ramesh Chandra Shah v. Anil Joshi, (2013) 11 SCC              A
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
                                                                     B
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)                                                                  C
       “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               D
521, it was held that a candidate who takes a calculated risk or
chance by subjecting himself or herself to the selection process
cannot turn around and complain that the process of selection
was unfair after knowing of his or her non-selection. In Pradeep
Kumar Rai v. Dinesh Kumar Pandey, (2015) 11 SCC 493,                 E
this Court held that: (SCC p. 500, para 17)
        “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          F
        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
                                                                     G
        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.”

                                                                     H
146                SUPREME COURT REPORTS                      [2019] 2 S.C.R.


A              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
B     stale claim of the applicant.
      Issue No.2
               19. Issue No.2 pertains to calculation of the vacancies. Before
      the Tribunal, an affidavit was filed by Deputy ChiefPersonnel Officer,
      Southern Railway explaining the determination of vacancies for selection.
C     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
D
      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. Senguttuvanwere
      already working. Thus, 05 vacancies were to be reserved for SC
      candidates out of cadre of 37. Two SC candidates being already working
E     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 number 9 to 13 of the roster (all these
                roster points are UR) for 30% selection. Whereas the 9th
F               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.
G              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
H
UNION OF INDIA & ORS. v. C. GIRIJA & ORS.                           147
         [ASHOK BHUSHAN, J.]

SC) and not as Point No.9 to 13 and he amended the proposal         A
(Annexure-R.10) as under:-
                         TOTAL UR          SC     ST
for 70 % Regular         13@   10           2      1
Selection 18x70
            100                                                     B
@ 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 5$                4     1    --                 C
                  100
$ 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           D
through the Chief Liaison Officer viz. Chief Personnel Officer.
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                E
for 70% Regular     13@   10                 2     1
Selection 18x70
           100
for 30% LDCE 18x30 5$      4                1      --
                100
11. I submit that the requirement of reservation in APO cadre       F
was as under:
 Cadre        Required       Available    Cadre
 Strength     Reservation                 Shortfall
             SC       ST     SC ST SC ST
             (15%) (7.5%)                                           G
 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:-                                      H
148                SUPREME COURT REPORTS                       [2019] 2 S.C.R.


A                          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 UR SC TOTAL
B               For 70% Regular 10                  2      1       13
                selection
                For 30% LDCE                 4      1      --       5
                Total                       14      3      1       18
               12. I submit that the selection for the post of Assistant Personnel
C              Officer through 30% 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
D              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
E              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.

F          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. Balchandaron 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 were
G 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
H
             UNION OF INDIA & ORS. v. C. GIRIJA & ORS.                               149
                      [ASHOK BHUSHAN, J.]

noticed above is relevant, where it is mentioned that the roster point               A
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
                                                                                     B
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 view that explanation by the Railway was a plausible
explanation, which was not such as to give a cause for interference by               C
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             D
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.
                                                                                     E
          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 paid
interest @ 8% p.a. on retirement benefitsafter one monthof retirement                F
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.
                                                                                     G
Nidhi Jain                         Appeals allowed and Writ Petitions disposed of.




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