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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6213 OF 2008 (@SPECIAL LEAVE PETITION (CIVIL)NO.7686 OF 2004)

UNION OF INDIA & ORS.                             Appellant(s)

                     VERSUS

CHITRA LEKHA CHAKRABORTY                          Respondent(s)

WITH  C.A.NO.6214/2008  @ SLP(C)NOS.180603/2005

AND WITH  C.A.NOS.6215-6216/2008 @ SLP(C)NOS.21902-21903/2004

O R D E R

Leave granted.

Delay condoned.

We will first deal with Civil  Appeals @ SLP© Nos.21902-03/04

and Civil Appeal @ SLP© no.18603/05.   

These appeals, by special leave, are being filed in connection with

the selection  of  Non-Technical  Popular  Clerical  Category of  the Railways.

The  selection was  held  in  the  year  1984 and  a  written  test  was  held  on

26.5.1985 followed by an interview on 25.9.1985.  Several candidates were

selected.  There was  allegation that some of the candidates, who participated

in the selection, indulged in malpractices in the examination and it appears

that  the  selection  Board  has  published  a  list  which  contains  about  1000

candidates.  Some  of  these  candidates  who  were  aggrieved  by  their  non-

selection  filed various representations before the Railway Recruitment Board.

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While   these representations were pending, they filed

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Original  Applications  before  the  Central  Administrative  Tribunal  (for  short

‘C.A.T.’)at Calcutta.  The C.A.T. has directed that their cases be considered

and fresh interviews be held and selection be done and the candidates be

included.   Thereafter  several  candidates  were  appointed,  pursuant  to  the

direction  of  the  C.A.T..   Prior  to  this,  on  17.2.1986  the  Addl.  Executive

Director  Estt.(T&MPP)  wrote  a  letter  to  the  Chairman,  Railway  Recruitment

Board indicating the number of candidates to whom the fresh notices have

been issued and it was found that some candidates have secured more marks

than  the  1000  candidates,  who  were  suspected  to  have  indulged  in

malpractices, and he was of the view that these candidates should be given

careful consideration and on consideration of the same, their rights should be

restored and the names of those candidates which were in the list  should be

included  in  the  appropriate  places  in  the  panel.   Appropriate  direction  to

appoint the respondents in Civil Appeal @ SLP©Nos.21902-21903/04 and in

the appeal @ SLP(C)No.18603/05 were issued, on the basis of the letter dated

17.2.1986 and the said respondents were appointed in the year 1994. These

respondents had claimed seniority over the candidates who had already been

appointed in the year 1985 based on the statement made in the letter dated

17.2.1986 that their appointments should be made after including them at

the  appropriate  places  in  the  panel.  The  C.A.T.  has  directed  the  railway

authorities to fix the specific position of the respondents in the panel for the

purpose of determination in the  inter  se  seniority  against  those appointed

from the said panel  

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and the relative position of the applicants in such panel shall  be ascribed

keeping  in  view the  aggregate  marks  obtained  by  the  applicants  and the

relative aggregate marks of the applicants who have already been appointed

from the said panel.

This  order  of  the  C.A.T.  was  challenged  before  the  High  Court

contending that these respondents were appointed only in the year 1994 and

that they cannot claim seniority over the candidates who had already been

appointed in the year 1985. But this plea of the respondents was not accepted

by the High Court and the order of the C.A.T. was confirmed by the High

Court.  The  judgment  of  the  High  Court  in  these  two  proceedings  are

challenged in the present appeals.

We will  now deal with Civil  Appeal @ SLP© 7686/04. The brief

facts are :

The respondent herein  had participated in  the selection in  the

year 1984 and her name was not found in the selection list and she filed a

representation  to  the  Railway  authorities  in  the  year  1991  and  her

representation was not replied by the railway authorities whereafter she filed

an Original Application before the C.A.T., Calcutta.  The C.A.T. has allowed

the O.A.  During the pendency of the O.A. before the Tribunal, the Chairman

of the Railway Recruitment Board issued a direction to appoint the respondent

and  she  was  consequently  appointed.   Thereafter  the  O.A.  filed  by  the

respondent  was  disposed  of  on  8.1.1996   with  the  direction  that  the

Chairman of the Railway Recruitment Board shall, within two months from the

date   of  communication of the order, convey to the petitioner

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therein to specify the specific position of the petitioner in the panel selected

for  the  purpose  of  determination  of  her  inter  se seniority  amongst  those

appointed  from the  said  panel  and  it  was  also  directed  that  the  relative

position of the petitioner of such panel shall be ascribed keeping in view her

aggregate marks and the relative aggregate marks of other candidates who

had already been appointed from the panel.  Thereafter the appellant Union of

India (Ministry of Railways) has filed a review petition before the C.A.T. and

the same was rejected on the ground that it  was filed beyond 30 days as

prescribed under Rule 17 of the Central Administrative Tribunal (Procedure)

Rules, 1987 (for short ‘the 1987 Rules).  The appellant has challenged the

same before the High Court and the High Court confirmed the order passed

by the C.A.T.  Aggrieved by the same, the present appeal has been filed by

the Union of India.

Learned Addl.Sol.General  for the Union of India contended that

the review petition filed by the appellant should have been allowed as there

was sufficient cause for extending the period of limitation prescribed under

Rule 17 of the 1987 Rules.  Learned Addl.Sol.General has placed reliance on a

decision  of  this  Court  in  Consolidated  Engg.  Enterprises  Vs.  Principal

Secretary, Irrigation Dept. & Ors., reported in 2008(7) SCC p.169, wherein it

was held that  Section 14(2) of the Limitation Act, 1963 was applicable to an

application submitted under Section 34(1) of the Arbitration and Conciliation

Act, 1996. It was further held that as per Section

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43 of the Arbitration Act, the  Limitation Act, 1963 was  applicable to the

application filed under Section 34 of the Arbitration and Conciliation Act for

setting aside the award. In other words, a  specific provision was made in the

Arbitration  and  Conciliation  Act  for  application  of  Limitation  Act.   In  the

instant case a specific provision in Rule 17 of 1987 Rules has been made for

filing a review application before the C.A.T. and therefore, Section 5 of the

Limitation Act was not applicable to a petition filed under Rule 17.  The High

Court was justified in concluding that the Tribunal has rightly dismissed the

application filed beyond 30 days.

On coming to the question  of  seniority  of  the respondent  the

direction of the C.A.T. was that the respondent herein shall be given  specific

position  in the panel for the purpose of determination of her inter se seniority

against those appointed from the said panel  and the relative position of the

respondent in such panel shall  be ascribed keeping in view the aggregate

marks obtained by the applicants who have already been appointed from the

said panel. It was contended on behalf of the Railways that the selection was

held  in  the  year  1984  and  the  records  relating  to  the  selection  are  not

available with them as there was an accidental fire and the records have been

destroyed.   Moreover  the  respondent  herein  also  is  not  successful  in

producing any document to show as to what is the aggregate marks obtained

by her  vis  a vis the aggregate marks obtained by other candidates who had

already been appointed. There is also no common panel prepared conjoining

the selection

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made in the year 1984 and the persons appointed subsequently so that the

seniority could be determined by the appellant.  Even though the direction

issued by the Tribunal has become final in view of the peculiar position the

Railways is  directed to give  seniority  to the  respondent  from the  date  on

which she joined the service.  

The appeal @ SLP(C)No.7686 of 2004 is disposed of accordingly.

No costs.

In the other two appeals i.e.  Civil  Appeals @ SLP© Nos.21902-

03/04  and  Civil  Appeal  @  SLP©  no.18603/05,  the  respondents  were

appointed pursuant  to  the direction passed by the C.A.T.  and it  was also

directed that their seniority shall be given based on their aggregate marks

over  the  relative  aggregate  marks  obtained  by  other  candidates  who had

already been appointed. Neither the respondents nor the Railways are in a

position to give the aggregate marks obtained by the respondents nor the

marks obtained by the candidates who had already been appointed.  There

was no common panel  vis a vis the candidates from the year 1985 and the

candidates  who  had  been  subsequently  appointed.  Only  if  there  was  a

common panel, the seniority could be determined on the basis of Rule 303

which regulates the seniority  of the non-gazetted railway employees. There

was no common seniority list nor any merit list prepared by including all the

candidates.   Moreover,  the  respondents  herein  were  not  included  in  the

original list and the C.A.T. has directed that there should be a fresh interview

for these candidates and the  interview  was  held  subsequently.  It must

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have been certainly by a different Board which had conducted the interview.

Under these circumstances, it is difficult to hold that all these candidates, who

had been appointed, were from the same panel. There are no criteria available

to determine  the  inter  se merit  of  the candidates.  These respondents  were

appointed several years after the appointments were made in the year 1985.

None of the candidates who had been selected in the year 1985 were made

parties  to the O.A.  before the C.A.T.  or  before the High Court in the writ

petition.  In the circumstances, the seniority of the candidates who had been

appointed  in  the  year  1985  cannot  be  disturbed  without  hearing  those

candidates.  Learned counsel appearing for the respondents strongly relied on

the  letter  dated  17.2.1986  written  by  the  Addl.Executive  Director  to  the

Chairman,  Railway Recruitment Board wherein he expressed the opinion that

in case the representations filed by these candidates are allowed their places

in the seniority is to be given by interpolating in the seniority list which has

already been made. Learned counsel for the respondents contended that this

was not the stand of the Railway Board and once the stand was expressly

made clear, the appellant was bound by this statement.  Reliance was also

placed on the observations of this Court in Mohinder Singh Gill & Anr. Vs. The

Chief Election Commissioner, New Delhi & Ors., reported (1978) 1 SCC p.405,

wherein this  Court has stated that when a statutory functionary makes an

order based on certain grounds, its validity must be judged by the reasons so

mentioned and  cannot   be   supplemented   by   fresh  reasons in the shape

of

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affidavit or otherwise. Otherwise, an order bad in the beginning may, by the

time it comes to Court on account of a challenge, get validated by additional

grounds later brought out and it was contended that these observations of

this  Court  were  further  followed  in  State  Govt.  Houseless  Employees'

Association Vs.  State of Karnataka & Ors.,  2001 (1) SCC p.610 at para 49,

Chandra Singh & Ors. Vs. State of Rajasthan & Anr., 2003(6) SCC p.545 para

37 and  Hindustan Petroleum Corporation Ltd. Vs.  Darius Shapur Chenai  &

Ors., 2005(7) SCC p.627 paras 24 to 27.  But in the instant case there was no

order passed by any responsible officer or by the Railway Recruitment Board

to the effect that if any candidate, who had  subsequently been appointed,

his/her  seniority  would  be  determined  on  the  basis  of  his/her  aggregate

marks or the rank secured in the interview. The letter dated 17.2.1986 cannot

be considered as an order passed on behalf of the railways. Moreover, the

seniority of persons appointed in a service should be decided after hearing

the relevant parties and applying the rules regulating the seniority principle.

In  these  cases  there  was  no  common seniority  list  and marks

secured by these candidates and the candidates who had been appointed in

the year 1985 are not available and placed before C.A.T. or High Court.  The

relative merit of the candidates cannot be considered as no marks are placed

even  before  us.   It  may  also  be  noticed  that  these  respondents  were

appointed after a period of six years, not due to any fault committed   by  the

Railway   Recruitment   Board.  As per the

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allegations  and  counter  allegations,  it  would  appear  that  some  of  the

candidates  had indulged in malpractices and they were disqualified and later

on on the basis of the representations and   the   orders   passed   by the

C.A.T.  the  respondents  were  appointed  subsequently.   There  was  no

negligence or latches on the part of the appellant in making the appointments

of  the  respondents  belatedly.  Having  regard  to  the  peculiar  facts,  the

respondents are entitled to seniority only from the date when they joined

their service.  

Accordingly,  Civil  appeals  @  SLP©Nos.21902-03/04  and

SLP©No.18603/05 are allowed to the extent indicated above and the order

passed by the High Court is set aside.   No costs.    

...............CJI. (K.G. BALAKRISHNAN)

.................J.     (P. SATHASIVAM)

.................J.     (J.M. PANCHAL)

NEW DELHI; 21ST OCTOBER, 2008.