Kerala High Court
V.Subramanian Aged 48 Years vs The Director General on 15 June, 2009
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 27TH DAY OF AUGUST 2014/5TH BHADRA, 1936
WP(C).No. 30637 of 2012 (D)
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PETITIONERS:
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1. V.SUBRAMANIAN AGED 48 YEARS
S/O.D.VARADHA REDDIAR
ASSISTANT SUB INSPECTOR/PROTECTION FORCE
RAILWAY PROTECTION FORCE, TRAINING CENTRE
TIRUCHIRAPALLY,RESIDING AT:NO.61/B, RPF QUARTERS
KAJAMALAI, TIRUCHIRAPALLY-620 023, TAMIL NADU.
2. D.JOSEPH DEVAMANI AGED 43 YEARS
S/O.D.N.DEVANDESAN
ASSISTANT SUB INSPECTOR/PROTECTION FORCE
RAILWAY PROTECTION FORCE, TRAINING CENTRE
TIRUCHIRAPALLY,RESIDING AT:NO.69, KRISHNAMURTHY NAGAR
II MAIN ROAD, K.K.NAGAR, TIRUCHIRAPALLY-620 021
TAMIL NADU.
3. P.V.RAJU AGED 43 YEARS
S/O.P.V.VARGHESE
ASSISTANT SUB INSPECTOR/PROTECTION FORCE
RAILWAY PROTECTION FORCE
ERNAKULAM TOWN RS RESIDING AT: PADINJARE MOLEL HOUSE
PUTHUPPADY, MUVATTUPUZHA, PIN:686673
ERNAKULAM DISTRICT.
4. A.P.DEEPAK
S/O.BHARATHAN.P
ASSISTANT SUB INSPECTOR/PROTECTION FORCE
TIRUR TAILWAY PROTECTION FORCE OUTPOST
PERMANENT ADDRESS: 'KAJAL NIVAS', VARAM POST
KANNUR-670 594.
5. V.RAJENDRAN AGED 44 YEARS
S/O.A.VENKATASAMY
ASSISTANT SUB INSPECTOR/PROTECTION FORCE
SPECIAL INTELLIGENCE BRANCH/OPEN LINE/CHENNAI-600 003
RESIDING AT:413-A, IX STREET, PWQ RAILWAY QUARTERS
DANGAN SALAI, AYANAVARAM, CHENNAI-600 023.
6. P.HEMANATHA KUMAR AGED 45 YEARS
S/O.P.KUPPUSAMY MUDALI
ASSISTANT SUB INSPECTOR/PROTECTION FORCE
NGO ANNEX/CHENNAI-600 003
RESIDING AT: FLAT NO.1, C-BLOCK, ORCHARD BHAVAN
STATION ROAD, VENKATARAMANA NAGAR, KORATTUR
CHENNAI-600 080.
WP(C).No. 30637 of 2012 (D)
7. S.P.RADHAKRISHNAN AGED 46 YEARS
S/O.O.S.PERUMAL
ASSISTANT SUB INSPECTOR/PROTECTION FORCE
SOUTHERN RAILWAY TRAIN ESCORT COY, MADURAI
RESIDING AT: NO.44, PERUMAL KOIL STREET, VADAMADURAI
PIN: 624802, DINDUGAL DISTRICT.
BY ADVS.SRI.T.C.GOVINDA SWAMY
SRI.G.SHYAM RAJ
RESPONDENTS:
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1. THE DIRECTOR GENERAL,
RAILWAY PROTECTION FORCE, NEW DELHI-110 001.
2. THE CHIEF SECURITY COMMISSIONER
RAILWAY PROTECTION FORCE, CHENNAI-600 003.
3. THE DIVISIONAL SECURITY COMMISSIONER
RAILWAY PROTECTION FORCE, TRIVANDRUM-695014.
R1-R3 BY ADV. SRI.M.C.CHERIAN,SR.SC.,RAILWAYS
R1 -R3 BY ADV. SRI.C.S.DIAS,SC, RAILWAYS
R1 -R3 BY ADV. SMT.SUMATHY DANDAPANI (SR.)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-08-2014, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JV
W.P.(C). NO. 30637/2012
APPENDIX
PETITIONERS' EXHIBITS:
P1 : COPY OF JUDGMENT DATED 15TH JUNE 2009 IN WRIT APPEAL NO.
966/2009 RENDERED BY THIS HON'BLE COURT
P2 : COPY OF NOTIFICATION BEARING NO.X/P.608/ASIPF/LDC/2000 DATED
31.01.2006, ISSUED BY THE 2ND RESPONDENT
P3 : COPY OF PANEL PUBLISHED UNDER NO. X/P.608/ASIPF/LDC DATED
07.11.2006 FROM THE OFFICE OF THE 2ND RESPONDENT
P4 : COPY OF ORDER BEARING NO. X/P.608/ASIPF/LDC/2000 DATED
29.05.2006, ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT
P5 : COPY OF JUDGMENT DATED 15TH JANUARY 2008 WP(C) NO. 32302/07,
RENDERED BY THIS HON'BLE COURT
P6 : COPY OF JUDGMENT DATED 12TH JANUARY, 2009 IN WP(C) NO.
25440/2008 RENDERED BY THIS HON'BLE COURT
P7 : COPY OF INTERIM ORDER DATED 26TH JUNE 2009 IN WP(C) NO.
17962/2009 RENDERED BY THIS HON'BLE COURT
P8 : COPY OF MEMORANDUM BEARING NO. X/P.608/ASIPF/UR/72/LDC/06
DATED 11.09.2009, ISSUED BY THE 2ND RESPONDENT
P9 : COPY OF DRAFT SENIORITY LIST DATED 07.09.2011 ISSUED BY THE
SR. DIVISIONAL SECURITY COMMISSIONER IN THE OFFICE OF HTE
2ND RESPONDENT
P10 : COPY OF REPRESENTATION DATED 01.02.2012, SUBMITTED BY THE
6TH PETITION TO THE 2ND RESPONDENT
P11 : COPY OF REPRESENTATION DATED 22.08.2012, SUBMITTED BY THE
6TH PETITIONER TO THE 2ND RESPONDENT
P12 : COPY OF LETTER BEARING NO.M/XP/612/SENIORITY/ASIPF/12 DATED
26.10.2012, COMMUNICATED TO THE 6TH PETITIONER BY THE SENIOR
DIVISIONAL SECURITY COMMISSIONER, RPF/CHENNAI
P13 : COPY OF JUDGMENT DATED 20.10.11 IN WA NO. 1487/2011 RENDERED
BY THIS HON'BLE COURT
P14 : COPY OF ORDER BEARING NO.M/XP.612/ASIPF/SEN/11 DATED
21.11.2011, ISSUED BY THE SR. DIVISIONAL SECURITY
COMMISSIONER, RPF/CHENNAI
15 : COPY OF COMMUNICATION BEARING NO.M/XP.612/ASIPF/SEN/12
DATED 24.05.12 ISSUED BY THE SR. DIVISIONAL SECURITY
COMMISSIONER, RPF/CHENNAI
W.P.(C). NO. 30637/2012
RESPONDENTS' EXHIBITS:
R1(A) : COPY OF RULES 64 AND 65 OF RAILWAY PROTECTION FORCE RULES
R1(B) : COPY OF THE ORDER IN SLP NO. 5366 OF 2012 OF THE HON'BLE
SUPREME COURT OF INDIA
//TRUE COPY//
P.A. TO JUDGE
ALEXANDER THOMAS, J.
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W.P.(C). No. 30637 of 2012
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Dated this the 27th day of August, 2014
J U D G M E N T
The petitioners herein who are members of the respondent Railway Protection Force are aggrieved by the assignment of the seniority upon promotion as Assistant Sub Inspector of Protection Force (ASIPF). The facts necessary for the disposal of this matter are as follows:
2. The method of recruitment to the post of Assistant Sub Inspector of Protection Force (hereinafter referred to in short as 'ASI') of the respondent Railway Protection Force (RPF), is from two sources, viz, (i) 60% of the vacancies by promotion of Head Constables on the basis of seniority and (ii) 40% of the vacancies to be filled from amongst Head Constables/Constables with 10 years service by a process of Limited Departmental Competitive Examination (LDCE). So the 60% quota is to be filled on the basis of seniority and the 40% quota is to be filled on the basis of the above said merit process determined by the Limited W.P.(C). No. 30637 /2012 2 Departmental Competitive Examination (LDCE). Only two chances are afforded for those who want to participate in the competitive examination. For filling up the 40% quota, the 2nd respondent Chief Security Commissioner, RPF, Chennai had issued Ext.P2 notification dated 31.01.2006, wherein the notified vacancies were 50 vacancies. The petitioners participated in the selection process pursuant to Ext.P1 and they were qualified. In the meanwhile, by Ext.P4 proceedings dated 29.05.2006, the 2nd respondent had reduced 17 vacancies from the purview of Ext.P2 notification for selection in the 40% quota, with the result that the total number of vacancies available for the merit quota as per Ext.P2 was restricted to 33 vacancies. Pursuant to Ext.P2 and P4, the 2nd respondent issued Ext.P3 proceedings dated 07.11.2006, whereby 33 persons were selected in the said 40% quota and due to the reduction of 17 vacancies from the purview of Ext.P2 as already in Ext.P4, the petitioners' names were not included in Ext.P3.
3. According to the petitioners, they were unaware about Ext.P4 and they came to know Ext.P4 only after the publication of Ext.P3 through the initiation of proceedings under the Right to Information Act (RTI Act). Being aggrieved by the reduction W.P.(C). No. 30637 /2012 3 of 17 vacancies from the purview of Ext.P2 selection process and their consequent non-inclusion in Ext.P3 select list, some of the petitioners had approached this Court by filing W.P.(C).
No. 32302/2007, which was disposed of as per Ext.P5 judgment rendered on 15.01.2008. The last paragraph of Ext.P5 judgment, which is the operative portion of the said judgment, reads as follows:
"In the result, the writ petition is disposed of directing the 1st respondent to consider whether the 17 vacancies, which were reduced from the 50 vacancies notified in Ext.P1, could be made available to the persons found eligible in the selection conducted under Rule 72 of the Rules. A decision in this regard shall be taken, 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 the 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 1st respondent within four months from the date of receipt of a copy of this judgment."
4. In compliance with Ext.P5 judgment, the respondents W.P.(C). No. 30637 /2012 4 considered the matter and rejected the case of the petitioner on the ground that the petitioners had not secured the minimum qualifying marks in the competitive examination for the 40% quota and also on the ground that 66 vacancies had to be utilised for appointment in the 60% seniority quota. Aggrieved by such rejection, some of the petitioners had again constrained to approach this Court by instituting W.P.(C) No. 25440/2008, in which this Court rendered Ext.P6 judgment on 12.01.2009, substantially upholding the claims of the petitioners. Paragraph 8 and 9 of the said judgment which are pertinent in this case, reads as follows:
"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 Seniority/Suitability by giving one time exemption in terms of the Board's letter No. PC-III/200/CRC/1 (RPF/RPSF) dated 15.09.2004. 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 W.P.(C). No. 30637 /2012 5 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 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 ASI have been kept unfilled."
5. Aggrieved by the judgment rendered by this Court as per Ext.P6 in W.P.(C). 25440/2008, the respondent RPF W.P.(C). No. 30637 /2012 6 authorities had preferred Writ Appeal No. 966/2009 by resorting to intra-court appellate remedy. The Division Bench of this Court as per Ext.P1 judgment rendered on 15.06.2009 disposed of the said Writ Appeal by repelling the contentions of the respondent RPF and upholding the claims of the writ petitioners therein by holding as follows in paragraph 5 of the said judgment, which reads as follows:
"5. Going by Exhibit P9, the vacancies lost from the 40% quota to the incumbents claiming promotion under 60% quota have to be recouped. Going by Exhibit P1 it would appear that 66 vacancies available under the 40% quota were utilised for seniority promotion in implementation of Exhibit P4. If the candidates included in the panel drawn up in 2001 were used for promotion, then for implementation of Exhibit P4, only 49 vacancies would have been available (66-17). So, for seniority promotion, 17 vacancies which were not due to the said stream were also utilised. Therefore, to that extent, the said stream has to surrender 17 vacancies. If that is done, 50 vacancies would be available for promotion, as per the notification made in 2006. The 17 vacancies were additionally enjoyed by the seniority stream at the cost of the fast track stream. Therefore, for implementing Exhibit P2 judgment it is unjust to deduct those 17 vacancies from the quota of the fast track stream, as was done W.P.(C). No. 30637 /2012 7 in the present case. The seniority stream enjoyed the additional advantage of 17 vacancies and therefore, those vacancies should be surrendered from their quota. If those vacancies are also made available as directed in Exhibit P9, there will be 50 vacancies available for promotion pursuant to the notification issued in 2006. Therefore, we find nothing wrong with the direction issued by the learned Single Judge to implement Exhibit P9 and grant promotions. But the direction of the learned Single Judge that only those who approached this Court need be promoted, cannot be sustained. The appellants are directed to draw a panel for 17 more vacancies also from the candidates included in Exhibit P6 and order their promotions in accordance with their merit. It shall be done within two months from the date of receipt/production of a copy of this judgment."
6. The Division Bench of this Court categorically held in Ext.P1 judgment that 17 vacancies were additionally enjoyed by the 60% seniority stream at the cost of the 40% merit / fast track stream and that it is unjust to deduct those 17 vacancies from 40% merit /fast track stream and as the 60% seniority stream enjoyed those additional advantage of 17 vacancies, those 17 vacancies should be surrendered from the 60% seniority quota so as to do justice to the 40% merit quota and accordingly, the W.P.(C). No. 30637 /2012 8 RPF authorities were directed by the Division Bench to draw a panel of 17 more vacancies also from the candidates included in Ext.P6 therein and order their promotions in accordance with their merit etc. According to the petitioners, the respondent RPF authorities did not comply with the directions of the Division Bench in Ext.P1 and when they proceeded to make further excess appointments in the 60% seniority quota, some of the aggrieved candidates who were similarly situated as the writ petitioners herein, had approached this Court by filing W.P.(C). No. 17962/2009. This Court as per order dated 26.06.2009 rendered in W.P.(C) No. 17962/2009 (Ext. P7 herein) had directed the respondent RPF authorities that no candidate belonging to 60% quota will be accommodated against the 17 vacancies against which the petitioners herein and others are entitled to be promoted in the 40% merit quota. Thereupon the respondent RPF authorities complied with the directions issued by this Court in Ext.P6 judgment as affirmed in Ext.P1 judgment of the Division Bench, by issuing Ext.P8 proceedings dated 11.09.2009, wherein 17 candidates from the selection process notified as per Ext.P2 were included for promotion in the 40% quota. The serial numbers 1 to 10 of Ext.P8 are unreserved W.P.(C). No. 30637 /2012 9 candidates and serial number 11 to 17 are reserved category candidates. Petitioners 1 to 7 herein are Serial Nos. 3, 10, 2, 6, 4, 9 and 5 respectively in Ext.P8.
7. The petitioners were thus regularly appointed to the cadre of ASI of RPF in the aforementioned 40% merit quota notified as per Ext.P2 selection process. Subsequently, the draft seniority list in the cadre of ASIPF was circulated by the respondent authorities. The objections were called for from aggrieved persons in respect of the seniority provisionally assigned in Ext.P9 draft seniority list and thereupon the petitioners herein submitted their objections before the competent authority of the RPF. Ext.P10 is one such written objection submitted by the 6th petitioner herein and Ext.P11 is his reminder submitted to the respondent authorities. By Ext.P12, the 2nd respondent Chief Security Commissioner of the RPF rejected the objections of the writ petitioners solely on the ground that candidates like the petitioners herein had completed their pre-promotion training course to the rank of ASIPF and had assumed high responsibility only on 18.02.2010 as envisaged in Rule 64.2 and accordingly, they could be assigned seniority only after their actual assumption of such high responsibility W.P.(C). No. 30637 /2012 10 consequent on their successful completion of pre-promotion training course and that there is no legal or factual error in the seniority proposed in Ext.P9 draft seniority list. Ext.P14 is the seniority list which has been subsequently made final as noted in Ext.P15. It is the inter-se seniority assigned in Ext.P9 and P14 that is primarily the grievance of the writ petitioners herein. In the conspectus of these facts and circumstances, the petitioners herein have filed this writ petition (Civil) seeking the following reliefs.
"(a) Issue a writ of certiorari or other appropriate writ, order or direction calling for the records leading to the issue of Exhibit P12 and quash the same;
(b) Declare that the petitioners are entitled to be granted the benefit of promotion and consequential seniority as if P8 is part of P4, with all consequential benefits of promotion from the date of promotion of the last General Category/Reserved Category person, as the case may be, in Exhibit P3, with all consequential benefits of arrears of pay and allowances, seniority etc;
(c) Award costs of and incidental to this petition;
(d) Pass such other orders or directions as deemed fit and necessary in the facts and circumstances of the case."
W.P.(C). No. 30637 /2012 11
8. Though the first limb of prayer No. (b) refers to Ext.P4, the same has been allowed to be corrected as Ext.P3 in the second limb of prayer No. (b) as well as in the interim relief portion and the reference to Ext.P4 in the first limb of prayer No. (b) appears to be typographical error and therefore is to be read only as Ext.P3.
9. The respondent RPF authority have resisted the pleas and prayers of the writ petition by filing a counter affidavit dated 16.04.2013. The petitioner has filed a reply affidavit dated 29.08.2013. In the counter affidavit, the respondents would primarily contend that the impugned seniority position is fully in consonance with Rule 64.2 of the RPF Rules, 1987 and that after selection and promotion of a person as ASI, he will have to participate and pass in a mandatory pre-promotion training course which is a condition precedent to join duty as ASI and the seniority can be assigned only from the date of shouldering of higher responsibility after successful completion of the pre- promotion training course. Ext.R1(A) is the rules in this regard relied on by the respondents. Rules 64 and 65 of Ext.R1(A) reads as follows:
W.P.(C). No. 30637 /2012 12
"64. Promotion courses:
64.1 Enrolled members of the Force on being regularly selected for promotion to the rank of Naik, Head Constable, Assistant Sub-Inspector and Sub-
Inspector shall undergo a special course (hereinafter referred to as promotion course) at any training institution of the Force for a duration which may be fixed by the Director General.
Provided that the promotion course of
promotee Sub-Inspectors (Fire) eligible for
admission to the National Fire Service College, Nagpur shall be at the said College. 64.2 Passing of pre-promotional course shall be essential for regular promotion which will take effect from the date on which such enrolled member of the Force reports for duty against a clear vacancy after passing the said course.
65. Examination on conclusion of course at any training institution of the Force: 65.1 At the conclusion of each course at any training institution of the Force, the final examination shall be conducted by a Board of Examiners which shall be nominated by
(a) the Director General in case of training courses for Sub-Inspectors and above, and
(b) the Chief Security Commissioner concerned in case of training courses for other members of the Force."
10. The Railways would contend that the writ petitioners have passed the pre-promotion training contemplated in W.P.(C). No. 30637 /2012 13 Ext.R1(A) only in 2009 and they could assume the higher responsibility as ASI only thereafter and their seniority position is fully on the basis of this position flowing from Ext. R1(A). The fact that petitioners could complete the pre-promotion training only in 2009 is not in anyway disputed by the writ petitioners. The contentions primarily relied on by the writ petitioners are on a different score. Both in the writ petition and in the reply affidavit, the petitioners primarily raised two contentions. The first contention is that the respondents were legally obliged to select 50 persons in the 40% merit quota pursuant to the selection process notified in Ext.P2 and that 17 vacancies out of the 50 vacancies notified in Ext.P2, were unlawfully reduced by Ext.P4 with the result that Ext.P3 select panel could include only 33 candidates. The exclusion of 17 candidates from the selection process was found to be unlawful by this Court in Ext.P6 judgment as well as in Ext.P1 judgment of the Division Bench and it is on this basis that the 17 persons including the petitioners were included in Ext.P8. The sheet anchor of the argument in this regard raised by Sri. T.C. Govindaswamy , learned counsel for the petitioners is that Ext.P8 is an integral part of the select list prepared W.P.(C). No. 30637 /2012 14 pursuant to Ext.P2 selection process and that therefore Ext.P3 which is the initial select panel of 33 candidates and Ext.P8 select panel which is the one for the 17 candidates, should be treated as one integral composite select list prepared pursuant to Ext.P2 selection notification which was for 50 vacancies. The candidates in Ext.P3 and P8 are all candidates who had participated pursuant to the selection process as per Ext.P2 notification and had all appeared for the same competitive examination. But for the exclusion/reduction of 17 vacancies, all the 17 candidates included in Ext.P8 would also have been included as per their rank and turn in Ext.P3, is the primary contention of the petitioners. The essence and substance of this contention is also reflected in Ext.P10 written objections submitted by the petitioners. On the basis of this plea which is the contention of Sri.T.C. Govindaswamy, learned counsel for the petitioners that impugned seniority of the petitioners has to be refixed and redetermined in terms of Rule 306 read with 305 of Chapter 3 of the Indian Railway Establishment Manual (IREM), Volume I. Rule 306 of the aforementioned IREM reads as follows:
"306: Candidates selected for appointment at an W.P.(C). No. 30637 /2012 15 earlier selection shall be senior to those selected later irrespective of the dates of posting except in the case covered by paragraph 305 above. 305: When, however, a candidate whose seniority is to be determined under paragraphs 303 and 304 above cannot join duty within a responsible time after the receipt of order of appointment, the appointing authority may determine his seniority by placing him below all the candidates selected at the same examination/selection, who have joined within the period allowed for reporting to duty or even below candidates selected at subsequent examination/selection who have joined before him."
11. The auxiliary contention raised by the petitioners is that they are entitled for the benefit of the fixation of seniority as laid down by the Division Bench of this Court in the Judgment rendered on 20.10.2011 in Writ Appeal No. 1487/2011 (Ext.P13 herein). The beneficiary of the said judgment as per Ext.P13 is one Sri.K. Kasilingam, who is not one among the 17 candidates like the petitioner included in Ext.P8. It appears that Sri. Kasilingam is a candidate who had secured promotion in the 40% merit quota in the selection process initiated previously to Ext.P2 selection notification. In Ext.P13 judgment, the Division Bench held that when appointment is from two streams on a particular ratio which in the case of ASIPF is 60:40 (60 from the W.P.(C). No. 30637 /2012 16 seniority quota and 40 from the merit quota), the appointments will have to be simultaneously made by filling up block of 10 posts with 6 from promotees and 4 from select list. It was held therein that so much so, the claim of the candidates arises only when appointments are made filling up the post of ASI from both streams should have been done simultaneously and so it was held that date on which retrospectivity has to be granted to the candidate in the 40% promotion quota is the date on which he would have got appointment had the list not been cancelled and the appointment made in accordance with the norms, ie, the ratio of 6:4 under the rules etc.
12. Heard Sri. P.C. Govindaswamy, learned counsel for the petitioners and Smt.Sumathi Dandapani, learned senior counsel appearing for the respondent RPF instructed by Sri. C.S. Dias, learned standing counsel for the railways.
14. The parties reiterated their submissions, through their respective counsel, on the basis of their respective pleadings in this case. The learned senior counsel appearing for the respondents would contend that the railways had challenged Ext.P13 judgment of the Division Bench before the Supreme Court and that by Ext.R1(B) order dated 02.04.2012, the Apex W.P.(C). No. 30637 /2012 17 Court had disposed of the SLP preferred by the railways by dismissing the SLP, but leaving open the question of law. Ext.R1 (B) order of the Supreme Court in the said SLP rendered on 04.12.2012 reads as follows:
"Delay condoned.
The Special Leave Petition is dismissed. However, the question of law is left open."
15. The respondents would thus contend that they had complied with Ext.P13 judgment as evident from Ext.P14 dated 24.05.2012 only on the basis of the directions issued by the Supreme Court in Ext.R1(B) SLP order dated 02.04.2012. They would contend that the quota-rota rule is not an inflexible rule as far as category ASIPF in RPF is concerned and secondly, the direction issued in Ext.P13 to follow the quota-rota rule in a block of 10 vacancies does not have the backing of any statutory rule or executive guidelines followed by the railway administration and that the terminology used in the rule is 60% for seniority quota and 40% for merit quota and that since the question of law decided in Ext.P13 has been left open by the Supreme Court in Ext.R1(B) judgment, the legal principles that follows from Ext.P13 judgment of Division Bench, cannot be said W.P.(C). No. 30637 /2012 18 to have the value of binding precedent etc.
16. In the view that I propose to take in the disposal of this matter, it is not really necessary to adjudicate on the tenability of the contention raised by either side on the basis of Ext.P13 judgment of Division Bench and the order of the Apex Court in Annexure-R1(B) SLP order.
17. It is also further contended by the learned senior counsel appearing for the respondent RPF that there are no sufficient pleadings in this writ petition regarding the plea of the petitioner that Ext.P3 and P8 form part of integral select list pursuant to Ext.P2 selection process and the consequential contentions raised based on the provisions of the Indian Railway Establishment Manual. It is also further contended by the learned senior counsel for the respondent RPF that petitioners have not impleaded any of the incumbents who would be affected by the alteration of seniority in Ext.P9 draft seniority list and Ext.P14 final seniority list and that the petition is liable to be dismissed on the sole ground of non-impleadment of necessary parties. As regards the first contention in this regard, it is to be noted that the petitioners have specifically pleaded in paragraph 13 of the writ petition that Ext.P8 is W.P.(C). No. 30637 /2012 19 nothing but an addition to Ext.P3 panel and that Ext.P8 and P3 are to be treated as one the whole panel and that the petitioners are entitled to seniority on that basis, in preference to all those who are empaneled or promoted after the publication of Ext.P3 panel list dated 07.11.2006. In Grounds 'E' and 'F' of the writ petition, the petitioners have further urged that they are entitled for a declaration that their seniority and benefit of promotion must be assigned as if they have been included in Ext.P3 panel with the benefit of promotion and all other consequential benefits including seniority with effect from the date of promotion of the last general category/reserved category as the case may be, as available in Ext.P3 panel. It is also urged that Exts.P3 and P8 constitute one panel for the purpose of selection and selection ends only with one panel and not with a series of panels and that the petitioners are entitled to benefits of inclusion in Ext.P8 as if they are included in Ext.P3 with all the consequential benefits, including the benefit of promotion as ASI of Protection Force on the date of promotion of the last general category/reserved category present, as the case may be. Relief No.(b) sought in the writ petition is also for a specific declaration that petitioners are entitled to be granted the benefit W.P.(C). No. 30637 /2012 20 of promotion and constitutional seniority as if Ext.P8 is part of Ext.P4, with consequential benefits for promotion from the date of promotion of the last general category/reserved category present as the case may be, in Ext.P3, with all consequential benefits with arrears of pay and allowances, seniority, etc. Therefore, it cannot be said that the petitioners have not raised any specific pleadings in this regard and the pleadings of the petitioners are very concise and precise in this aspect of the matter for urging their primary contention that Ext.P3 and P8 should be treated as one integral select panel that arises out of Ext.P2 selection notification. True that petitioners have not explicitly quoted the provisions of Rule 306 and 305 of Chapter 3 of Indian Railway Establishment Manual (IREM) volume-I, quoted above. But the above said rule is an elementary rule governing the matter. The substance and essence of the matter are pleaded precisely, in view of the specific averments and contentions of the petitioner quoted above. Therefore this Court has no hesitation to overrule the plea of the learned senior counsel appearing for the respondent RPF that the petitioner have not raised any specific pleadings regarding this aspect of the matter. As regards the issue of non-impleadment of parties W.P.(C). No. 30637 /2012 21 affected by the seniority sought to be altered from the one in Ext.P9 draft seniority list and Ext.P14 final seniority list, it is submitted by Sri. T.C. Govindaswamy, learned counsel for the petitioners that the petitioners have primarily sought only a declaration in terms of relief No. (b) of the writ petition quoted above. In this regard, he would further urge that the Apex Court in a series of decisions as in the case A Janardhana Vs. Union of India reported in [1983 (3) SCC 601] has held that if what is challenged for getting the relief of the seniority claims over one set of personnel is primarily the criteria adopted by the Government /Authority concerned in arriving the placement of seniority, then Court exercising judicial review can adjudge on the correctness, legality or otherwise of such impugned criteria followed in fixation of the impugned seniority position and for that purpose impleadment of such parties, who would be affected by the consequential action is not necessary, etc. In the view that this Court proposes to take for disposal of this matter, it is not necessary to decide on the issue as to whether impleadment of such parties is necessary or not, in this case.
18. The specific pleadings of the petitioner regarding this contention that Ext.P3 and P8 should be treated as one integral W.P.(C). No. 30637 /2012 22 select list prepared pursuant to Ext.P2 selection notification, as already been adverted to above. The impugned Ext.P12 order rejecting the objections of the petitioner does not disclose that the respondents have in anyway considered and adverted to those specific pleas of the petitioner. On the other hand, it is very clear from a reading of Ext.P12 that the said pleas and contentions of the petitioners in this crucial aspect have not been considered by the respondent authority in issuing the impugned Ext.P12 rejection order. The impugned Ext.P12 rejecting the objections of the petitioner reads as follows:
"CSC/MAS vide letter cited above has advised the representation of Sri. P. Hemanthakumar, ASIPF/NGO/A dt.22.08.12 and 01.02.12, regarding fixation of seniority in the rank of ASIPF has been examined. He has requested for reckoning of date of ASIPF promotion on par with 33 ASIPF empanelled and promoted during 2006.
Sri P. Hemanthakurmar, ASIPF/NGO/A has successfully completed prepromotion course training to the rank of ASIPF and assumed higher responsibility only on 18.02.10, as envisaged in Rule 64.2. Accordingly, he has been assigned seniority in the rank of ASIPF from the date i.e. after successful completion of prepromotion course training and assuming higher responsibility.
For assuming higher responsibility, successful W.P.(C). No. 30637 /2012 23 completion of pre-promotion course training is mandatory as per RPF Rules 64.2. Seniority can be given only after assuming higher responsibility in that post. Hence, the claim of Sri. P.Hemanthakumar for fixation of back dated seniority cannot be accepted. Copy of acknowledgment may be obtained from him and forwarded to this Office for record."
19. Reading of Ext.P12 would make it clear that there is no advertence and consideration of the aforementioned and pleas and contentions of the petitioner regarding the treatment of Ext.P3 and P8 as an integral select list etc. Faced with this situation, learned senior counsel for the respondent would submit that the petitioners have not originally pleaded such aspects in their objections given to the respondent authorities and in the absence of any such plea taken before the respondent authorities, they cannot be found fault with the omission in the consideration of the same. In this regard, Sri. T.C. Govindaswamy, learned counsel for the petitioners would submit that the petitioners have originally pleaded the substance and essence of this aspect before the respondent authorities as can be seen from Ext.P10 which is one such objection raised by one of the petitioners before the respondent authority. He would also invite my attention to the pleadings W.P.(C). No. 30637 /2012 24 and contentions raised in Ext.P10 objections submitted before the respondent authorities, which reads as follows:
7 There was a notification from CSC/MAS vide ref.
MX/P.608/ASIPF/LDCE/06 dated 1.2.06 and 13.2.06 calling for willingness from the eligible candidates for the selection of ASIPF under Rule 72 announcing the vacancy position as UR - 31, SC - 13, ST-6 Total 50. Subsequently, a corrigendum vide the same reference dated 29.5.2006 was issued modifying the vacancy position as UR - 21, SC- 6, ST-6 Total -33.
However, I attended the above selection conducted from 23.7.2006 to 26.7.2006 and successfully passed the written and viva-voce held on 8.8.2006. Even though I was qualified for the post of ASIPF, only 33 candidates were empanelled as per the corrigendum issued. Had 50 candidates empanelled as per the earlier notification, I would have got empanelled. 7 The corrigendum issued modifying the vacancy position from 50 to 33, was challenged and the Hon'ble High Court of Kerala which ordered to include 17 more vacancies together with 33 vacancies for which selection was held. This order was challenged by the Administration and again the Hon'ble High Court of Kerala has upheld the decision of the Single Judge and confirmed the order including 17 more vacancies and to promote 17 candidates who were qualified on merit basis. In response to the Judgment, 17 more candidates including me were empanelled for the post of ASIPF and sent for training. After completion of successful training myself was promoted and posted to Neyveli OP w.e.f. 18.2.2010.
7 With regard to my position of seniority along with 16 others, I submit that the 17 candidates including myself should have given seniority along with 33 candidates those who were empanelled during 2006 batch as we were qualified in the selection held for the vacancy of W.P.(C). No. 30637 /2012 25 2006 as per the merit list issued. So, the position of seniority for the 33 selected during 2006 is from 175 to 206 and seniority position of the 17 candidates including me who were empanelled as per the direction of the Hon'ble High Court of Kerala should have been from 207 to 223 whereas the seniority has been assigned as 254 to 267.
7 43 ASIPFs who were empanelled in the selections subsequently held during the year 2007, 2008 were over ridded and they are supposed to be our juniors.
Hence, I request my benevolent CSC to order necessary changes in the seniority list released by the Headquarters office vide reference cited and to assign the correct seniority to me which render justice."
20. Reading of the aforementioned Ext.P10 would also make it clear that the petitioners have urged the essence and substance of their contention that Exts.P3 and P8 should be treated as one integral and composit select panel that arises out of Ext.P2 selection notification and that 43 ASIPFs, who were empanelled in the selections subsequently held during the year 2007-2008, have been given seniority over and above the petitioners in the impugned draft seniority list and that the petitioners should be assigned seniority as if they belong to the 2006 batch/panel. True that the petitioners have not quoted the aforementioned provisions of the IREM as per Rules 306 and 305 thereof, but they have cogently pleaded in Ext.P10 that their W.P.(C). No. 30637 /2012 26 seniority should be adjudged as if they belong to 2006 Batch/panel prepared pursuant to Ext.P2 selection notification and that personnel who have been selected in the subsequent panels cannot be placed as seniors to the petitioners herein etc.
21. In my considered opinion, the mere omission of the petitioners to quote the relevant provisions of the Indian Railway Establishment Manual is not fatal in this case as the petitioners have urged the substance and essence of the matter regarding their claim based on their plea that they should be treated as belonging to 2006 batch/panel that consequently their seniority should be fixed as if they are in 2006 batch/panel etc. Therefore, this Court is not prepared to non-suit the petitioners merely on the ground that the petitioners have not in so many words quoted the relevant provisions of Rules 306 and 305 of Chapter-III of IREM Volume-I.
22. As the respondent authorities have not adverted to these crucial aspect of the matter based on the claim of the petitioners that they belong to the panel prepared pursuant to Ext.P2 selection notification, and the related and consequential aspects flowing therefrom, the impugned Ext.P12 is vitiated by non-consideration of relevant aspects. On this sole ground, W.P.(C). No. 30637 /2012 27 Ext.P12 is liable to be quashed and accordingly Ext.P12 is quashed in order to facilitate fresh consideration of the matter at the hands of the competent authority of the respondents.
23. Accordingly, the matter is remitted for fresh consideration before the 2nd respondent Chief Security Commissioner, RPF, Chennai. The petitioners will be at liberty to submit a common representation of all the petitioners ventilating their grievances and also pinpointing their factual pleas and legal contentions to be considered by the 2nd respondent. The petitioners would also pinpoint in that representation as to who are the specific incumbents mentioned in Exts.P9 draft seniority list and P14 final seniority list against whom they have complaint of seniority and who may be affected by the pleas and contentions of the petitioners. The representation in this regard shall be submitted by the petitioners to the 2nd respondent, Chief Security Commissioner, within a period of three weeks from the date of receipt of a certified copy of this judgment. Upon receipt of such representation, the 2nd respondent will issue notices to such affected parties also and would also issue notices for hearing the petitioners as well and afford an opportunity of hearing to them through their authorised representatives. The 2nd respondent would specifically W.P.(C). No. 30637 /2012 28 consider the pleas and contentions of the petitioners that Exts.P8 and P3 is an integral composite select panel prepared pursuant to Ext.P2 selection notification and as to their further contention that they are entitled for seniority as if they are included in the 2006 panel prepared pursuant to Ext.P2 selection notification and also the related contentions based on Rules 306 and 305 of Chapter III of IREM Volume-I etc. Based on the decision that has to be taken by the 2nd respondent on the aforementioned aspects of the matter, it would be for the 2nd respondent to further examine the matter as to whether consequential alteration of seniority is called for in this case and, if so, to take further action in that aspect of the matter. The contention based on Ext.P13 judgment is not seen raised by the petitioners in Ext.P10 written objections, but such contention has been raised by the petitioners in this Writ Petition. However, it is felt that it is necessary that the 2nd respondent shall consider that aspect of the matter and it would be open for the petitioners to urge in their representation about their contentions based on Ext.P13 judgment of the Division Bench and establish their contention that Ext.P13 would laid down the correct legal position, eventhough the Apex Court has left open the question of law to W.P.(C). No. 30637 /2012 29 be decided as can be seen in Ext.R1(b). The entire exercise in this regard should be completed and the decision taken by the 2nd respondent on the representation of the petitioners shall be intimated to them within a period of four months from the date of receipt of the receipt of their written representation along with a certified copy of this judgment.
The Writ Petition (Civil) stands finally disposed of, subject to the above said directions and observations.
SD/-
ALEXANDER THOMAS, JUDGE.
JV