JUDGMENT : Amreshwar Pratap Sahi, J. Heard Shri S. D. Sanjay, learned Additional Solicitor General of India, Shri P. K. Verma, learned Senior Counsel along with Dr. Anand Kumar for the petitioners- Railways and Shri M.P. Dixit, learned counsel for the respondent. 2. The writ petition had been entertained and an interim order had been passed on 18th September, 2018 staying the operation of the impugned judgement. 3. After a marathon argument by both sides, the contentions that have been raised by the respective counsel for the parties, focuses on the issue as to whether the respondent-applicant Manisha Kumari has been rightly reverted vide order dated 28th March, 2018 followed by an order of communication dated 16th May, 2018 to the post of Group-D on the ground that she has failed to clear the typing test which, according to the petitioner, was compulsory and was the minimum eligibility required for her promotion to the post of Lower Division Clerk (LDC) from where she has been reverted. 4. The Tribunal by the impugned judgement dated 20th July, 2018 accepted the claim of the respondent holding that she had acquired the right of continuing as an LDC keeping in view the Office Memorandum dated 22nd April, 2015 that was made applicable by the Railways in the present case with effect from 16th January, 2017 and consequently has quashed the order of reversion with consequential benefits to the respondent-applicant. 5. The Union of India and the Railways have come up questioning the correctness of the said judgement primarily on the ground that the respondent-applicant in spite of having been given repeated opportunities failed to qualify the typing test and, accordingly, in view of the Circular dated 7th of April, 2000 which imposes this obligation of passing the typing test read with the order of promotion by making two genuine attempts within the period/extended period prescribed therein, she has been rightly reverted and, therefore, the impugned judgement and order of the Tribunal deserves to be set aside. 6. There is yet another aspect of the matter which cannot be lost sight of and deserves mention as this was also one of the arguments advanced by the respondent that in similar cases, namely, in the case of Sunita Kumari & Ors. Versus The Union of India & Ors. 6. There is yet another aspect of the matter which cannot be lost sight of and deserves mention as this was also one of the arguments advanced by the respondent that in similar cases, namely, in the case of Sunita Kumari & Ors. Versus The Union of India & Ors. a writ petition filed before this Court, namely CWJC No.999 of 2017 had been dismissed and the review application had also been rejected that came to be challenged before the Apex Court in Civil Appeal No.8011-8012 of 2019 (Mohan Ram & Ors. Versus Union of India & Ors) that has been allowed by the Apex Court very recently vide judgement dated 4th October, 2019 wherein the Apex Court has proceeded to extend the benefit of exemption of typing test to such similarly situate employees who had been reverted along with the respondent-applicant. 7. We have considered the submissions raised and there are certain undisputed facts that deserve to be mentioned. The respondent applicant was given the first chance to pass the typing test on 17th September, 2009 in which she failed. On 25th May, 2010, 10th July, 2010 and 11th July, 2010 a second typing test was held but the respondent-applicant in spite of this opportunity did not appear in the said tests. The 3rd typing test was convened on 7th October, 2011 in which the respondent-applicant appeared and she was declared failed, the result whereof was published on 11th October, 2011. 8. In spite of these unsuccessful attempts, on 28th November, 2014, another typing test was convened specially for the respondent, but she did not choose to appear in the same. The 5th typing test was convened on 29th March, 2017 and the typing test was held on 17.04.2017. The respondent applicant did not choose to appear on the pretext of some problem in her fingers and the last offer given to her on 20th January, 2018 where again she did not appear in spite of having been invited. 9. From the aforesaid gamut of facts which are undisputed, the respondent-applicant had appeared twice but failed, but she did not attempt in the other offers made to her. 10. 9. From the aforesaid gamut of facts which are undisputed, the respondent-applicant had appeared twice but failed, but she did not attempt in the other offers made to her. 10. The Office Memorandum dated 22nd April, 2015 was issued and sub-clause (d) of Clause 2 of the said Memorandum categorically provided that those LDCs who had made two genuine attempts for passing the typing test prior to the issue of the Office Memorandum and have not completed 8 years service as LDC, may be granted exemption from passing the typing test after completion of 8 years of service. We are not quoting the said provision which is already extracted in the judgement of the Apex Court dated 4th October, 2019 in the case of Mohan Ram & Ors. Versus Union of India & Ors. (supra) to which we will refer to hereinafter. 11. The said Office Memorandum which was of the Department of Personnel, Government of India came to be applied and implemented by the Railways with effect from 16th of January, 2017. The Office Memorandum of 22nd April, 2015, therefore, was made applicable to the Railways and Clause 3 of the said letter dated 16.01.2017 recites that the instructions will take effect from the date of issue of the said letter, but cases already decided in the past need not be re-opened. 12. In the case of Sunita Kumari & Ors. (Supra), all the petitioners therein had undertaken their typing tests and failed prior to 16th of January, 2017 and had also been reverted to their posts prior to the said date but they took the plea that Manisha Kumari, the respondent-applicant herein was being continued who was similarly situate. 13. The distinction in the case of the respondent-applicant as against the said candidates is that the respondent-applicant was continuously given this opportunity till January 2018 to appear in the typing test and she was ultimately reverted on 28th of March, 2018 which was after the issuance of the said Railway Board Circular dated 16th January, 2017 whereas the petitioners in Sunita Kumari’s case (supra) had failed in the typing test and had been reverted prior to 16th of January, 2017. 14. 14. It is in this background that after the reversion order was passed on 28th March, 2018 that the respondent-applicant approached the Tribunal for quashing of the same contending that the said Circular applies to her case squarely and she is entitled to exemption, inasmuch as, on the date of reversion she had completed 8 years of service and having not passed the typing test, she could not have been reverted as per the benefit that is available under the said Circular. 15. The Tribunal proceeded to discuss the case even on the merits of the matter relating to her not having passed the typing test, but applying the said Railway Board Circular dated 16th January, 2017 recorded a finding that the respondent-applicant had acquired the right to continue, inasmuch as the respondent was entitled to such exemption under the said Circular. Thus, the assumption drawn by the Tribunal was that the respondent became eligible by virtue of the said Circular which had come into operation on 16th January, 2017 and therefore, her reversion thereafter was bad in law. 16. It is in the background of these undisputed facts that Shri S. D. Sanjay, learned Additional Solicitor General of India and Shri P. K. Verma, Senior Advocate for the Railways have advanced their submissions contending that the aforesaid Circular would not apply, inasmuch as, the promotion of the respondent would be governed by the 2000 Circular referred to above as well as the terms and conditions of her order of promotion. It is further contended that even the Office Memorandum dated 22nd April, 2015 in Clause 2(c) as well as the other clauses envisages the passing of the typing test by making two genuine attempts and, therefore, the respondent-applicant, who had failed twice and had not made any genuine attempt to appear in the typing test in spite of four other opportunities given to her, she was not entitled to any such benefit nor any right accrues in her favour so as to extend the benefit of exemption to her from typing test. It is, therefore, submitted that the Tribunal has incorrectly construed the applicability of the Circular and has overlooked the fact that the respondent-applicant has failed to pass the typing test which was a sine qua non for promotion as LDC as she was bound by the Circular of 2000 as well as the terms of her promotion itself. Having not cleared the typing test, admittedly she could not claim promotion to the post of LDC as a matter of right and, therefore, the Tribunal has committed an error in proceeding to allow her claim. 17. We have considered the submissions advanced as well as the Circulars on record, and the first mist which deserves to be cleared is about applying the law in the case of Mohan Ram & Ors. Versus Union of India & Ors. (supra) decided on 4th October, 2019. In order to maintain clarity and avoid ambiguity, we are extracting the entire contents of the judgement of the aforesaid case hereinunder:- “ Leave granted. 2. With the consent of learned counsel, the appeals are heard finally. 3. The appellants were working in Group ‘D’ posts, with the respondent (hereinafter "Indian Railways"). They were promoted as Junior Clerks provisionally by two orders dated 12.06.2008 and 30.06.2008. They were required to pass the typing test within two years (of such promotion). The condition of having to pass such test was mandatory (in terms of RBE 113/2005). The appellants despite availing of three opportunities, could not clear the typing test and failed in it. They were sought to be reverted by the Indian Railways. 4. Aggrieved, the appellants approached the Central Administrative Tribunal (CAT), Patna. Their applications were rejected. During pendency of the applications, their reversion were stayed by virtue of interim orders. Their writ petition filed before the Patna High Court met with the same fate. Accordingly, they approached this Court in these appeals byway of special leave. 5. The main stay of the appellants’ case before this Court–urged on their behalf by the counsel is that exemption from the condition of having to clear typing test was granted to similar employees, because they had crossed 45 years of age. The appellants complained that the Indian Railways has not meted out similar treatment to them. The railway authorities, they argue have drawn an artificial distinction claiming that those cases pertain to other organisations. The appellants complained that the Indian Railways has not meted out similar treatment to them. The railway authorities, they argue have drawn an artificial distinction claiming that those cases pertain to other organisations. It is contended that promotion orders nowhere stipulated that in the event of the appellants not clearing the typing test, there would be consequential reversions. Unfairness too is cited as the ground for arbitrariness because some individuals were retained despite their not clearing such a test. 6. Learned counsel lastly argues that by office memorandum–issued by the Department of Personnel and Training (DoPT) instructions have been issued now exempting those who had attained age of 45 years on the date of their appointment, from the requirement of passing the typing test. Furthermore, it is urged that accommodation has been made to persons with disability as well. 7. Ms. Madhvi Divan, learned Additional Solicitor General argued that the appellants’ claim is not justified. It is emphasised that at the time of promotion they were made aware about the condition of having to clear the typing test within two years; they attempted three times but were unsuccessful. Lastly, their reversion was justified, in terms of the circular of the Indian Railways (dated 04.07.2005). It was submitted that the complaint of discrimination–regarding the retention of failed candidates is without any basis. 8. The learned Additional Solicitor General argued that at best the appellants’ services can be considered to the post of Lower Division Clerk (LDCs) pursuant to the exemption notification and that the benefit of previous service cannot be granted to them. The learned Additional Solicitor General points out that the DoPT Circular of April, 2015 does not ipso facto apply, as similar instructions contained in the Railways Board letter dated 11.05.2015 were issued. The Board had granted four chances to those who had not passed in the test on at least three occasions. It is argued therefore that the benefit of past service and pay protection cannot be claimed as a matter of right. 9. It is evident that the appellants were promoted pursuant to Notification dated 19.07.2007 for selection as Grade ‘C’ employees to the cadre of Junior Clerk. They cleared written test and were provisionally promoted on various dates in 2008.The promotion order, however, contained a condition that they had to pass the typing test within two years. 9. It is evident that the appellants were promoted pursuant to Notification dated 19.07.2007 for selection as Grade ‘C’ employees to the cadre of Junior Clerk. They cleared written test and were provisionally promoted on various dates in 2008.The promotion order, however, contained a condition that they had to pass the typing test within two years. It is a matter of record that despite three attempts, the appellants could not pass those tests. They were sought to be reverted after show cause notices were issued to them; the Indian Railways was asked to maintain status quo on 06.01.2012 by the Central Administrative Tribunal which the appellants had approached. This status quo order was effective till 23.12.2016 when the applications were dismissed. Their writ petitions were subsequently dismissed by the High Court. 10. The appellants' main argument is that the requirement of having to pass the typing test has been dispensed with and that their past inability to clear the test, should not come in their way of becoming Lower Division Clerks (LDCs). The DoPT circular dated 22.04.2015 relied upon by the appellants; reads inter alia, as follows: “...The undersigned is directed to say the instructions issued by this Department vide O.M. No.14020/2/91 Estt(D) dated 29th September, 1992 provide for grant of exemption from passing the typing test for drawal of increments and confirmation in respect of LDCs. 2(i) The above mentioned instructions provide for exemptions as under: (a) If above 45 years of age on the date of their appointment, such persons may be granted exemption from the date of their appointment. (b) If between the age of 35 years and 45 years at the time of their appointment, such persons may be granted exemption on attaining the age of 45 years. (c) If below 35 years of age on the date of appointment, such persons may be given exemption after 10 years of service as LDC provided they have made two genuine attempts to pass the typing test; otherwise they may be granted exemption after attaining the age of 45 years. (d) Those LDCs who have made two genuine attempts for passing the typing test prior to issue of this O.M. but have not completed 8 years service as LDC, may be granted exemption from passing the typing test after completion of 8 years of service or on attaining the age of 45 years, whichever is earlier...” 11. (d) Those LDCs who have made two genuine attempts for passing the typing test prior to issue of this O.M. but have not completed 8 years service as LDC, may be granted exemption from passing the typing test after completion of 8 years of service or on attaining the age of 45 years, whichever is earlier...” 11. The Indian Railway’s argument is that the benefit of this circular cannot be granted as according to its policy one more chance could have been granted for exceptional circumstances and that in any event a subsequent change of policy cannot result in benefit to the appellants. 12. This Court is of the considered opinion that in the circumstances of this case, the Indian Railways is not unjustified in arguing with regard to per se inapplicability of the 22.04.2015 DoPT circular; nevertheless the fact remains that on 11.05.2015 it recognized that there can be circumstances in which the employees beyond a particular age, may be unable to clear the typing test. The Indian Railways itself carved out an exception – may be a one time exception. Having regard to these salient circumstances and the fact that appellants worked for a majority (of eight nine) out of the past 10 years in the higher post (during which period they appear to have drawn increment and discharged the responsibilities as LDCs), this Court is of the opinion that a one time benefit of exemption (keeping in mind the objective sought to be subserved by the relaxation envisioned by the 22.04.2015 DoPT circular) ought to be extended in the peculiar facts and circumstances of the case. 13. Accordingly, it is hereby directed that the Indian Railways should treat the appellants as having continued as LDCs on regular basis from the date they were originally promoted (in 2008) and grant them all consequential benefits. They should be restored to their position by office memorandum and consequential orders to be issued within four weeks from today. It is clarified that this order is made in the peculiar circumstances of the case and has no precedential value. 14. Consequently, the impugned orders are set aside and the appeals are allowed to the extent indicated above.” 18. They should be restored to their position by office memorandum and consequential orders to be issued within four weeks from today. It is clarified that this order is made in the peculiar circumstances of the case and has no precedential value. 14. Consequently, the impugned orders are set aside and the appeals are allowed to the extent indicated above.” 18. A perusal of the said judgement categorically demonstrates that the argument advanced on behalf of the Railways in paragraph 12 has been accepted and at the same time, the employees, who were the appellants therein, were treated to be entitled for exemption on the peculiar facts and circumstances of the case, and while concluding in paragraph 13, the Apex Court clarified that the order was being made in the peculiar circumstances of the case and shall have no precendential value. In our considered opinion, the boundaries of the applicability of the said judgement were limited by the Apex Court itself and, therefore, we have no hesitation in recording that the said judgement would not operate as a precedent for us to accept the argument on behalf of the respondent-applicant on the basis of the said judgement. 19. Coming to the issue of the finding recorded by the Tribunal that the respondent-applicant had acquired a right to continue, we find that this assumption is absolutely erroneous inasmuch as even assuming that the Circular of 22nd April, 2015 was applicable, the same categorically prescribes a discretion in the employer to the effect that the employer may grant exemption from passing the typing test on completion of 8 years of service. The word, ‘may’ used in the Circular cannot be construed as ‘shall’, inasmuch as, we cannot overlook the provisions of Article 335 of the Constitution of India which on the facts of the case might be attracted as the respondent applicant is a member of the Scheduled Caste. It is evident that the respondent-applicant had failed twice and she did not avail of the other four opportunities offered to her. In such circumstances, it would be safe for us to Patna High Court CWJC No.17780 of 2018 dt.22-10-2019 15/16 construe that the word, ‘may’ leaves a discretion to the employer to consider the efficiency and the capability of a candidate to be considered for promotion to the post of LDC in the said background. In such circumstances, it would be safe for us to Patna High Court CWJC No.17780 of 2018 dt.22-10-2019 15/16 construe that the word, ‘may’ leaves a discretion to the employer to consider the efficiency and the capability of a candidate to be considered for promotion to the post of LDC in the said background. We refrain from making further observations at this stage, inasmuch as, any observation either against the respondent applicant or in her favour would be trenching upon the discretion of the employer who is yet to apply mind or the discretionary power for granting exemption or otherwise. 20. We, therefore, set aside the impugned judgement of the Tribunal dated 20th July, 2018, but at the same time, dispose of this writ petition with a direction to the petitioner Railways to consider the claim of the applicant in the light of the fact that after the Circular had been applied by the Railways on 16th January, 2017, the respondent-applicant was continuing and she came to be reverted later on 28th of March, 2018 without considering the impact of the Office Memorandum dated 22nd April, 2015 and its applicability vide Railway Board Circular dated 16th January, 2017. 21. Consequently, the case of the respondent-applicant stands on a different footing from the case of Mohan Ram & Ors. Versus Union of India & Ors. (supra) which otherwise would not be applicable in view of the clear pronouncement in the penultimate paragraph of the said judgement as quoted hereinabove. 22. The writ petition is, therefore, allowed in the above terms with a direction that the petitioners shall consider the claim of the respondent-applicant and pass an appropriate order within two months from today.