IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25440 of 2008(C)
1. R.V.RADHAKRISHNAN NAIR, AGED 39 YEARS
... Petitioner
2. V.SUBRAMANIAN, AGED 44 YEARS,
3. P.V. RAJU, AGED 38 YEARS,
4. D.JOSEPH DEVAMANI, AGED 38 YEARS,
5. A.P. DEEPAK,AGED 39 YEARS,
6. V.PADMAKUMAR, AGED 38 YEARS,
Vs
1. THE DIRECTOR GENERAL, RAILWAY
... Respondent
2. THE CHIEF SECURITY COMMISSIONER
3. THE DIVISIONAL SECURITY COMMISSIONER,
4. THE DIVISIONAL SECURITY COMMISSIONER,
5. THE DIVISIONAL SECURITY COMMISSIONER,
For Petitioner :SRI.T.C.GOVINDA SWAMY
For Respondent :SRI.T.P.M.IBRAHIM KHAN,SR.SC, RAILWAYS
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :12/01/2009
O R D E R
T.R.RAMACHANDRAN NAIR, J
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W.P.(C) NO:25440 of 2008
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Dated this the 12th day of January, 2009
JUDGMENT
The petitioners are aggrieved by Ext.P1 order by which their claim
for promotion against 40% quota have been rejected, finding that there
are no vacancies to accommodate them.
2. The petitioners are presently working as Head Constables except
the 5th, who is working as a Constable. As per the Recruitment Rules
relating to the post of Assistant Sub Inspector (ASI) of Railway Protection
Force, 40% of the vacancies in the cadre are to be filled from among the
Head Constables/Constables with 10 years service by a process of
Limited Departmental Competitive Examination.
3. In the year 2001, a Notification was issued for filling up 23
vacancies in the cadre of Assistant Sub Inspector under the 40% quota.
The examination was conducted and the entire selection process was
over as on 26.7.2001. Subsequently, the entire selection was cancelled.
This was the subject matter of the O.P.No.12361 of 2002. By Ext.P2, the
said Writ Petition was allowed. Again the matter was taken up by the
respondents in Writ Appeal No.346 of 2006, which was also dismissed.
This is evident from Ext.P3. Between the years, 2001 to 2006, no
selection was conducted against 40% quota. Thereafter, a Notification,
Ext.P5 dtd.31.1.2006, to fill up 50 vacancies against 40% quota, was
issued and the petitioners again wrote the examination and qualified in
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the written examination.
4. Ext.P6 is the list of qualified staff under the 40% quota and
the petitioners’ names have been included as Serial Nos.43, 73, 50, 26,
15 and 38 respectively. Finally, a panel consisting of 33 persons was
issued. That means there was a reduction of 17 posts.
5. The petitioners approached the higher authorities and the
respondents came out with the reply that 17 vacancies had been
reduced so as to accommodate the persons covered by Exts.P2 and P3
judgments. The petitioners thereafter challenged the same in W.P.(C)
No.32302 of 2007 which was disposed of by Ext.P9 judgment. It was
held that, the implementation of Exts.P2 and P3 judgment shall not
result in any detriment to petitioners. The authorities were directed to
take a fresh decision, in accordance with the findings contained in the
judgment. It is, thereafter, that the present order was passed.
Presently, the petitioners contend that the stand taken in Ext.P1 that
they cannot be accommodated in the vacancies, in view of the fact that
17 persons are accommodated to implement Ext.P2 judgment is not
correct. According to them, going by the directions in Ext.P9 they
were entitled to be accommodated since many persons who were not
eligible to be accommodated against 40% quota have been
accommodated under 60% quota and therefore, going by the direction
in Ext.P9 judgment they should have been given priority in accordance
with the number of vacancies to accommodate the petitioners. It is
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revealed from the interim order dtd.16.9.2008 passed by this Court in
this Writ Petition that six vacancies are available in the said post.
6. The respondents have filed a detailed counter affidavit. The
stand taken in the counter affidavit in a nutshell is that the
cancellation of the Notification in the year 2001, led to the challenge in
Ext.P2 judgment and by the time second notification was issued they
had to comply with the directions in Ext.P2 judgment. Accordingly,
corrigendum notification was issued. Even though a challenge was
made against the notification that was repelled and the notification
was upheld in Ext.P9 judgment. Therefore, the respondents cannot go
back against the principles in P9 judgment. It is therefore submitted
that what was done is only to comply with the directions in Ext.P2
judgment and naturally they had to accommodate 17 persons against
the vacancies notified in the year 2006. It is also contended that a
fresh notification was issued in the year 2008. The petitioners are not
eligible to participate in the said selection, since they have already
availed two chances. It is admitted in para 16 that petitioners have
qualified in the selection.
7. A reading of Ext.P9 judgment shows that the entire aspects
which led to the dispute have been considered in detail. This Court
was of the view that the vacancies which had to be filled up by eligible
candidates under 40% quota by conducting Limited Departmental
Competitive Examination. It was also found that the entire vacancies
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under the 40% quota available as on the date of Ext.P1 had been
notified under Ext.P1 and therefore, the respondents had
accommodated the said 17 persons from the 50 vacancies which were
notified in Ext.P1. It was held that this Court was not in a position to
say that the action taken was illegal and the respondents had to take
appropriate steps to comply with the judgment Ext.P7 ((P2) herein.)
Accordingly the corrigendum notification was upheld and thereafter
further directions were issued in the light of the contention raised by
the petitioners to ascertain whether the quota earmarked as 40% were
filled up by the other quota viz 60%. A reading of the operative
portion of the judgment shows that this Court directed the respondents
to take fresh decision after ascertaining whether the vacancies, which
had to be filled up under the 40% quota and available as on the date of
Ext.P9 were filled up by persons under 60% quota on the basis of
seniority/suitability. If it is so found, then a proportionate number of
vacancies may be made available to persons included in Ext.P2 rank
list, over and above the number of vacancies which have already been
filled up by virtue of Ext.P3. Proceedings in this regard may be passed
by the first respondent within four months from the date of receipt of a
copy of the judgment. Therefore, an exercise had to be made to find
out whether petitioners could be accommodated against 40% quota.
8. A reading of Ext.P1 shows that 66 vacancies which existed in
40% quota were adjusted and promotion was given on the basis of
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Seniority/Suitability by giving one time exemption in terms of the
Board’s letter No.PC-III/200/CRC/1(RPF/RPSF) dated 15.9.2004. The
authority was of the view that it is not feasible at this juncture to make
available any vacancy in favour of the petitioners. But as already
noticed, in the operative portion of the judgment this Court held that if
such a contingency arises there shall be a proportionate increase in
the number of vacancies to be made available to persons included in
Ext.P2 rank list over and above the number of vacancies which have
already been filled by virtue of Ext.P3. Therefore, even though in the
subsequent notification in the year 2006, 17 persons had to be
accommodated to implement the directions in Ext.P2 judgment, the
petitioners had also acquired a right for accommodation if as a matter
of fact persons from the 60% quota have been accommodated between
2001 to 2006 in excess of the quota. Therefore the view taken in
Ext.P1 that the petitioners cannot be accommodated in any vacancies
cannot be sustained. It is clear that the issue was directed to be
considered in the correct perspective and hence what was specified as
per Ext.P9 judgment cannot be overlooked by the respondents and the
finding in paragraph 6 of the judgment of this Court in Ext.P9 is
binding on the respondents who were already parties to the said
judgment. If that be so, I am of the view that the persons like the
petitioners need not suffer at the hands of the respondents and their
claim for accommodation survives. The finding in Ext.P1 that
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petitioners are unqualified is not correct, in view of the admitted fact
that they have qualified in the selection.
9. Only 6 out of the selected candidates as per Ext.P6, have come
up seeking for appointment. Pursuant to the interim order, 6 posts of
A S I have been kept unfilled.
Therefore, Ext.P1 is quashed. It is declared that the petitioners
are entitled for appointment to the post of ASI/RPF and appropriate
orders shall be passed within a period of 2 months from the date of
receipt of a copy of this judgment. The claim for arrears of pay etc.
cannot be granted obviously because they have not worked in the post
in question. The Writ Petition is allowed. No costs.
T.R.RAMACHANDRAN NAIR,
JUDGE
bps