Kerala High Court
R.V. Radhakrishnan Nair vs The Director General
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
MONDAY, THE 2ND DAY OF SEPTEMBER 2013/11TH BHADRA, 1935
WP(C).No. 27004 of 2009 (U)
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PETITIONER(S):
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1. R.V. RADHAKRISHNAN NAIR, AGED 40 YEARS,
S/O.C.G.VISWANATHAN NAIR, HEAD CONSTABLE,
RAILWAY PROTECTION FORCE, TRIVANDRUM CENTRAL,
TRIVANDRUM, PERMANENT ADDRESS AT NO.93-H, ANWAR GARDEN,
POOJAPPURA P.O., TRIVANDRUM.
2. V. PADMAKUMAR, AGED 39 YEARS,
S/O.M.VELAPPAN NAIR, HEAD CONSTABLE, SPECIAL
INTELLIGENCE BUREAU RAILWAY PROTECTION FORCE,
TRIVANDRUM, RESIDING AT KUNCHU VEEDU, DEVANAGAR 42,
KAZHAKUTTAM, TRIVANDRUM.
3. S. JOHN BRITTO, AGED 43 YEARS,
S/O.A.SAVARIYAR, HEAD CONSTABLE, RAILWAY
PROTECTION FORCE, TIRUCHIRAPALLI GOODS YARD,
TIRUCHIRAPAILI-1, RESIDING AT NO.112,
RAJAGANAPATHI NAGAR, 4TH STREET, KAJAMALAL,
TIRHCURAPALLI-23.
4. A. JANATHIPATHI, AGED 42 YEARS,
S/O.K.ARUMUGHAM, CONSTABLE, RAILWAY PROTECTION
FORCE, KUMBAKONAM, TANJORE DISTRICT,
TAMIL NADU, RESIDING AT NO.10, TIRUVALLUVAR NAGAR,
2ND STREET, TANJORE, TAMIL NADU.
BY ADVS.SRI.T.C.GOVINDA SWAMY
SRI.G.SHYAM RAJ
RESPONDENT(S):
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1. THE DIRECTOR GENERAL, RAILWAY PROTECTION FORCE,
NEW DELHI.
2. THE CHIEF SECURITY COMMISSIONER,
RAILWAY PROTECTION FORCE, CHENNAI.
3. THE DIVISIONAL SECURITY COMMISSIONER,
RAILWAY PROTECTION FORCE, TRIVANDRUM.
sts 2/-
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WP(C).No. 27004 of 2009
4. SHRI A. SIVASAMY, ASSISTANT SUB INSPECTOR
OF PROTECTION FORCE, SOUTHERN RAILWAY, VRIDHACHALAM
JUNCTION RS & PO, CUDDALORE DISTRICT.
5. SHRI.V. SAMRAJ,ASSISTANT SUB INSPECTOR OF PROTECTION
FORCE, SOUTHERN RAILWAY, VILLUPURAM RS & PO,
VILLUPURAM DISTRICT.
6. SHRI.R. SELVARAJ, CONSTABLE,
RAILWAY PROTECTION FORCE, SOUTHERN RAILWAY,
TIRUCHIRAPALLI JUNCTION, TIRUCHIRAPALLI.
7. SHRI.K. MADHESWARAN, CONSTABLE,
RAILWAY PROTECTION FORCE, SOUTHERN RAILWAY,
SALEM JUNCTION, SALEM.
8. SHRI. P.SARAVANAKUMAR,ASSISTANT SUB INSPECTOR OF
PROTECTION FORCE, SOUTHERN RAILWAY,
CHENNAI EGRNORE RS & PO, CHENNAI-600 008
9. SHRI. K.PALANI,ASSISTANT SUB INSPECTOR OF PROTECTION
FORCE,SOUTHERN RAILWAY,GOLDEN ROCK COLONY,
GOLDEN ROCK RS & PO, TIRUCHIRAPALLI
10. SHRI. D.RAMACHANDRAN, ASSISTANT SUB INSPECTOR OF
PROTECTION FORCE,SOUTHERN RAILWAY,
TIRUCHIRAPALLI JUNCTION, TIRUCHIRAPALLI.
R1 TO R3 BY ADV. SRI.T.P.M.IBRAHIM KHAN,SR.SC, RAILWAYS
SRI.M.C.CHERIAN,SR.SC.,RAILWAYS
SRI.N.B.SUNIL NATH,SC, RAILWAYS
R4 TO R10 BY ADV. SRI.Y.KRISHNAN
SRI.J.JULIAN XAVIER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 11-02-2013, THE COURT ON 02-09-2013 DELIVERED THE
FOLLOWING:
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WP(C)NO.27004/2009
APPENDIX
PETITIONER'S EXHIBITS:
P1 COPY OF THE RBE NO.203/04 DATED 15/9/04
P2 COPY OF THE LIST OF STAFF QUALIFIED FOR VIVA-VOCE COMMUNICATED
UNDER LETTER NO.VXP/608/ASIPF/40%/06 DATED 31/07/2006 BY 3RD
RESPONDENT.
P3 COPY OF THE ORIGINAL PANEL COMMUNICATED UNDER AMEMORANDUM
NO.X/P 608/ASIPE LDC DATED 07/11/2006 ISSUED BY THE SECOND
RESPONDENT.
P4 COPY OF THE LETTER NO.X/P.608/ASIPF/LDC/2000 DATED 29/5/2006, ISSUED
BY THE CHIEF SECURITY COMMISSIONER
P5 COPY OF THE JUDGMENT DATED 15 JANUARY 2008 IN WP(C)NO.32302/07 OF
THIS HON'BLE COURT.
P6 COPY OF THE JUDGMENT IN WP(C)NO.25440 OF 2008, DATED 12
JANUARY 2009
P7 COPY OF THE JUDGMENT DATED 15/06/09 IN WA.NO.966/09 RENDERED BY
THIS HON'BLE COURT
P8 COPY OF THE BROAD SHEET CONTAINING THE MARKS OBTAINED BY THE 82
CANDIDATES WHO ATTENDED THE VIVA-VOCE, DULY SIGNED BY THE
MEMBERS OF THE SELECTION COMMITTEE AND AS RECEIVED UNDER THE
RIGHT TO INFORMATION ACT
P9 COPY OF THE INTERIM ORDER IN WP(C)NO.17962/09 DATED 26 JUNE 2009
RENDERED BY THIS HON'BLE COURT.
P10 COPY OF THE MEMORANDUM BEARING NO.X/P.608/ASIPF/UR-72/LDC/06
DATED 11/09/09 ISSUED BY THE 2ND RESPONDENT.
P11 COPY OF THE PRODUCED ALONG WITH REPLY AFFIDAVIT DATED 18/01/2011
(NOTIFICATION BEARING NO.X/P608/ASIPF/SELECTION/RULE 72 (40%) 2007
DATED 6/8/2007, ISSUED BY THE 2ND RESPONDENT.
P12 COPY OF THE PRODUCED ALONG WITH REPLY AFFIDAVIT DATED 18/01/11
(MEMORANDUM BEARING NO.X/P608/ASIPF/UR-72/LDC/07 DATED 19/10/2007
ISSUED BY 2ND RESPONDENT.
P13 COPY OF THE MEMORANDUM BEARING NO.X/P608/ASIPF/SELECTION/RULE
72 DATED 23/06/2011 ISSUED BY THE 2ND RESPONDENT (EXHIBITS P11 AND
P12 PRODUCED AS PART OF REPLY AFFIDAVIT FILED BY THE PETITIONERS
DATED 18TH JANUARY 2011)
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WP(C)NO.27004/2009
RESPONDENT'S EXHIBITS:
R1(A) COPY OF THE NOTIFICATION NO.X/P.608/ASIPF/LDC/2010 DATED 31/1/2006 OF
2ND RESPONDENT.
/TRUE COPY/
P.S.TO.JUDGE
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A.M.SHAFFIQUE, J
* * * * * * * * * * * * *
W.P.C.No.27004 of 2009
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Dated this the 2nd day of September 2013
J U D G M E N T
This writ petition is filed challenging Exts.P10 and P13 to the extent that it includes respondents 4 to 10 and for a direction to the official respondents to include the names of petitioners in Ext.P10 and to grant them consequential benefits of promotion to the post of A.S.I/PF on par with their colleagues in Ext.P10. Ext.P13 is the list of selected candidates published on 23/6/2011 for promotion to the post of ASI.
2. The facts as disclosed in the writ petition would reveal that the petitioners 1 to 3 are working as Head Constables and 4th petitioner is a Constable in the Railway Protection Force. As per the recruitment rules relating to the post of Assistant Sub Inspector (ASI) of R.P.F. 40% of the vacancies in the cadre are to be filled from among the Head Constables/Constables with 10 years service after Limited W.P.C.No.27004/09 2 Departmental Competitive Examination (L.D.C.E) and 60% by promotion of the senior most Head Constables. As against the 40% quota, they have only two chances to participate in the L.D.C.E examination.
3. Though a notification for filling up 23 vacancies in the cadre of A.S.I was issued in the year 2001 and the selection process was completed, the same came to be cancelled. The cancellation of the selection process was challenged in O.P.No.12361/2002 before this Court. By judgment dated 06/12/2005 this Court approved the selection process and directed the authorities to make appointments from the published list. The respondents preferred an appeal against the said judgment as W.A.No.346/2006 which was dismissed on 20/02/2006.
4. During the interregnum period, no selection was conducted against the 40% quota whereas the vacancies including the L.D.C.E quota and the other 60% promotion quota were filled up by promotion of senior most Head W.P.C.No.27004/09 3 Constables.
5. According to the petitioner, in the meantime, the Railway Board has reclassified the cadre structure by which 7.75% of the total number of posts in the cadre is to be operated as A.S.I in the scale of pay 4000-6000. The vacancies which were in existence as on 01/11/2003 and 01/07/2004 were to be filled up on the basis of the modified selection procedure as per Ext.P1 dated 15/09/2004. It is the contention of the petitioner that 240 vacancies of A.S.I / P.F was filled up as on the cut off date which arose as a result of restructuring and all the vacancies were filled up under the 60% seniority quota. Thereafter, a notification was published on 31/01/2006 inviting applications for filling up the 40% quota. Petitioners contend that they wrote the written examination and became eligible. They also participated in the interview. But according to the petitioners when the list was published, only 33 vacancies as against 50 vacancies were notified. Ext.P3 is the said panel. W.P.C.No.27004/09 4 17 vacancies were further available for appointment. Petitioners filed W.P.C.No.32302/2007 and Ext.P5 judgment this Court directed the 1st respondent to consider whether the 17 vacancies could be made available to the persons found eligible in the selection conducted in terms of Rule 72. Thereafter an order dated 04/06/2004 was passed rejecting the request made by the petitioner. This had given rise to another writ petition as W.P.C.25440 of 2008 and Ext.P6 is the said judgment. It was found that the reason for rejecting the request of the petitioner were unsustainable. There was a direction to fill up six vacancies pending final disposal of the writ petition. Writ Appeal 966 of 2009 against the judgment in W.P.(C). No. 25440/2008. Ext.P7 is the said judgment by which this Court directed the respondent to draw a panel for 17 more vacancies also from the selected candidates and directed their promotions to be made in accordance with merit.
W.P.C.No.27004/09 5
6. Another writ petition came to be filed by petitioners 1 and 2 is W.P.C.No.17962 of 2009 for a direction to the respondents to include the petitioners in the list of selected candidates. By virtue of an interim order, this Court directed that no candidates belonging to 60% quota will be accommodated against the 17 vacancies against which the petitioners and others are entitled to be promoted. Ext.P9 is the said interim order. It is during the pendency of the writ petition that Ext.P10 order came to be passed by which respondents 4 to 10 in the present writ petition is shown as Sl.Nos.11 to 17. According to the petitioners these persons belonging to the reserved community and their inclusion in the panel is not in the order of merit. It is also contended that these persons have secured less marks than the petitioners and therefore their inclusion is bad in law. The writ petition was amended since the 2nd respondent had issued a memorandum dated 23/06/2011 as Ext.P13 empaneling 38 more W.P.C.No.27004/09 6 Constables/Head Constables for promotion to the post of A.S.I on the basis of 2010 selection process against 40% quota without implementing the directions in Ext.P7 judgment.
7. It is the contention of the petitioners that as per the judgment of this Court in W.A.No.966/2009 (Ext.P7), 17 vacancies are to be filled up in the order of merit and all the petitioners fall within the 17 vacancies whereas respondents 4 to 10 did not fall in the order of merit. According to them, Ext.P10 is arbitrary and illegal. It is further contended that there are no vacancies meant for Scheduled Caste community and according to them, by contending that they belong to SC community is absolutely mala fide.
8. Counter affidavit is filed by respondents 1 to 3 inter alia contending that notification dated 31/01/2006 is issued for 50 vacancies which was later reduced to 33 to accommodate 17 candidates as per the judgment passed by this Court in W.A.No.346/2006. Hence the vacancy position W.P.C.No.27004/09 7 was modified to 33 with categorywise break up as unreserved - 21, SC - 06 and ST - 06. Necessary corrigendum was issued on 29/05/2006. It is also contended that all the 50 vacancies notified on 31/01/2006 were filled up by promoting 17 persons as per the direction of the Division Bench in W.A.No.346/2006 and 33 persons were promoted in February 2007. Petitioners did not find a place in the select list of 33 recommended as per memorandum dated 17.11.2006. As per directions in W.A.No.966 of 2009, a panel of 17 vacancies were drawn as per vacancies available at the point of time as per the post based roster verified and vetted by the Reservation Cell of Southern Railway. Out of 17 vacancies 7 was SC, and the remaining 10 were unreserved. The 7th respondent also filed a counter affidavit supporting the stand taken by the department.
9. An additional and second counter affidavit is filed by respondents 1 to 3 relying upon Ext.R1(a) dated 31/01/2006 by which it was clearly mentioned as to how the W.P.C.No.27004/09 8 50 vacancies were to be filled up.
10. The learned counsel for the petitioner relied upon the judgment in R.K.Sabharwal and Others v. State of Punjab and Others [1995 SCC L &S 548]. Paragraphs 5, 6, 7 and 10 are relevant which reads as under:
"5. We see considerable force in the second contention raised by the learned counsel for the petitioners. The reservations provided under the impugned Government instructions are to be operated in accordance with the roster to be maintained in each Department. The roster is implemented in the form of running account from year to year. The purpose of "running account" is to make sure that the Scheduled Castes/Schedule Tribes and Backward Classes get their percentage of reserved posts. The concept of "running account" in the impugned instructions has to be so interpreted that it does not result in excessive reservation. "16% of the posts ..." are reserved for members of the Scheduled Castes and Backward Classes. In a lot of 100 posts those falling at Serial Numbers 1, 7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 80, 87 and 91 have been reserved and earmarked W.P.C.No.27004/09 9 in the roster for the Scheduled Castes. Roster points 26 and 76 are reserved for the members of Backward Classes. It is thus obvious that when recruitment to a cadre starts then 14 posts earmarked in the roster are to be filled from amongst the members of the Scheduled Castes. To illustrate, first post in a cadre must go to the Scheduled Caste and thereafter the said class is entitled to 7th, 15th, 22nd and onwards up to 91st post. When the total number of posts in a cadre are filled by the operation of the roster then the result envisaged by the impugned instructions is achieved. In other words, in a cadre of 100 posts when the posts earmarked in the roster for the Scheduled Castes and the Backward Classes are filled the percentage of reservation provided for the reserved categories is achieved. We see no justification to operate the roster thereafter. The "running account" is to operate only till the quota provided under the impugned instructions is reached and not thereafter. Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. The percentage of reservation is W.P.C.No.27004/09 10 the desired representation of the Backward Classes in the State Services and is consistent with the demographic estimate based on the proportion worked out in relation to their population. The numerical quota of posts is not a shifting boundary but represents a figure with due application of mind. Therefore, the only way to assure equality of opportunity to the Backward Classes and the general category is to permit the roster to operate till the time the respective appointees/promotees occupy the posts meant for them in the roster. The operation of the roster and the "running account" must come to an end thereafter. The vacancies arising in the cadre, after the initial posts are filled, will pose no difficulty. As and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster. For example the Scheduled Caste persons holding the posts at roster points 1, 7, 15 retire then these slots are to be filled from amongst the persons belonging to the Scheduled Castes. Similarly, if the persons holding the post at points 8 to 14 or W.P.C.No.27004/09 11 23 to 29 retire then these slots are to be filled from among the general category. By following this procedure there shall neither be shortfall nor excess in the percentage of reservation.
6. The expressions `posts' and `vacancies', often used in the executive instructions providing for reservations, are rather problematical. The word `post' means an appointment, job, office or employment. A position to which a person is appointed. `Vacancy' means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a `post' in existence to enable the `vacancy' to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of `vacancy' has no relevance in operating the percentage of reservation.
7. When all the roster points in a cadre are filled the required percentage of reservation is W.P.C.No.27004/09 12 achieved. Once the total cadre has full representation of the Scheduled Castes/Tribes and Backward Classes in accordance with the reservation policy then the vacancies arising thereafter in the cadre are to be filled from amongst the category of persons to whom the respective vacancies belong. Jeevan Reddy, J. speaking for the majority in Indra Sawhney v. Union of India observed as under: (SCC p. 737, para 814) "Take a unit/service/cadre comprising 1000 posts. The reservation in favour of Scheduled Tribes, Scheduled Castes and Other Backward Classes is 50% which means that out of the 1000 posts 500 must be held by the members of these classes i.e. 270 by Other Backward Classes, 150 by Scheduled Castes and 80 by Scheduled Tribes. At a given point of time, let us say, the number of members of OBCs in the unit/service/category is only 50, a shortfall of 220. Similarly the number of members of Scheduled Castes and Scheduled Tribes is only 20 and 5 respectively, shortfall of 130 and 75. If the entire service/cadre is taken as a unit and the backlog is sought to be made up, then the open W.P.C.No.27004/09 13 competition channel has to be choked altogether for a number of years until the number of members of all Backward Classes reaches 500, i.e., till the quota meant for each of them is filled up. This may take quite a number of years because the number of vacancies arising each year are not many. Meanwhile, the members of open competition category would become age- barred and ineligible. Equality of opportunity in their case would become a mere mirage. It must be remembered that the equality of opportunity guaranteed by clause (1) is to each individual citizen of the country while clause (4) contemplates special provision being made in favour of socially disadvantaged classes. Both must be balanced against each other. Neither should be allowed to eclipse the other. For the above reason, we hold that for the purpose of applying the rule of 50% a year should be taken as the unit and not the entire strength of the cadre, service or the unit as the case may be."
10. We may examine the likely result if the roster is permitted to operate in respect of the vacancies arising after the total posts in a cadre are filled. In W.P.C.No.27004/09 14 a 100-point roster, 14 posts at various roster points are filled from amongst the Scheduled Caste/Scheduled Tribe candidates, 2 posts are filled from amongst the Backward Classes and the remaining 84 posts are filled from amongst the general category. Suppose all the posts in a cadre consisting of 100 posts are filled in accordance with the roster by 31-12-1994. Thereafter in the year 1995, 25 general category persons (out of the 84) retire. Again in the year 1996, 25 more persons belonging to the general category retire. The position which would emerge would be that the Scheduled Castes and Backward Classes would claim 16% share out of the 50 vacancies. If 8 vacancies are given to them then in the cadre of 100 posts the reserve categories would be holding 24 posts thereby increasing the reservation from 16% to 24%. On the contrary if the roster is permitted to operate till the total posts in a cadre are filled and thereafter the vacancies falling in the cadre are to be filled by the same category of persons whose retirement etc. caused the vacancies then the balance between the reserve category and the general category shall always be W.P.C.No.27004/09 15 maintained. We make it clear that in the event of non-availability of a reserve candidate at the roster point it would be open to the State Government to carry forward the point in a just and fair manner."
11. Having regard to these statement of facts the question to be considered is whether the petitioner is entitled to get the promotion in terms of the directions issued by this court as per Ext.P7 judgment in W.A.No.966/2007.
12. In Ext.P7 judgment a division bench of this Court held as under:
"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 W.P.C.No.27004/09 16 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."
13. The only question that arises for consideration is whether the official respondents have followed the judgment of this Court as stated above. Petitioners contend that if 17 persons are selected from unreserved category they could also be included. But according to the respondent while filling up additional 17 seats the reservation is to followed and therefore respondents 4 to 10 have to be accommodated. It is argued on behalf of the petitioner that no vacancy was available for SC quota. Based on Sabharwal (supra) it is argued that the reservation is post based and not vacancy based. When already SC community was given their representation in the selection of 33 persons further reservation is not required. Two aspects are clear. This court in Ext.P7 judgment has only directed that 17 W.P.C.No.27004/09 17 vacancies are to be filled up from the merit list. This Court did not direct that the system of reservation should not be followed. In the 2nd additional counter affidavit of respondents 1 to 3 it is specifically contended that only when 33 vacancies were filled as per notification issued on 31.1.2006 and corrigendum dated 29.5.2006 the category wise break up was UR-21, SC-6 and ST- 6. 17 vacancies were filled up as directed by this court in W.A.No.346/2006, of which 4 were SC and 2 were ST. 16 were filled up and one ST vacancy remained unfilled.
14. It is clear that the 17 vacancies notified as per Ext.P10 are vacancies which were reduced from Ext.R1(a) notification from available 50 vacancies of which SC was 13. When the vacancy was reduced to 33, only 6 SC candidates were accommodated, which apparently leaves opportunity for 7 SC when the entire seats are to be filled up. Hence, I do not think that the petitioners can have any grievance at all. The official respondents were only following the W.P.C.No.27004/09 18 reservation policy as per rules which cannot be questioned by the petitioners. Though the number of posts meant for each category are constant it varies depending upon the post based Roster. This is not an instance in which the full cadre strength of SC category had been filled up. Hence reliance on the judgment in Sabharwal (supra) is out of place.
In that view of the matter, I am of the view that the petitioners could not establish the challenge to Exts.P10 and P13. Hence the writ petition is dismissed.
(sd/-) (A.M.SHAFFIQUE, JUDGE) jsr