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R.V.Radhakrishnan Nair vs The Director General on 12 January, 2009

Kerala High Court
R.V.Radhakrishnan Nair vs The Director General on 12 January, 2009
       

  

  

 
 
  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
                 --------------------------------------------------
                    W.P.(C) NO:25440 of 2008
                ---------------------------------------------------
                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

wpc:25440 of 2008
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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

wpc:25440 of 2008
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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

wpc:25440 of 2008
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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

wpc:25440 of 2008
5

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

wpc:25440 of 2008
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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

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