Union Of India vs J.Rajmohan on 1 May, 2009

[Cites 7, Cited by 0]

Kerala High Court

Union Of India vs J.Rajmohan on 1 May, 2009

Are the Scheduled Caste/Scheduled Tribe candidates who prove their merit and succeed in the selection obtaining higher ranks, to be placed only in the slots earmarked for SC/ST and are they not entitled to compete with others on merit, to be accommodated against the general slots based on their merit, in turn leaving the slots earmarked for SC/ST to be filled up by other candidates belonging to the said segment ? Are the applicants justified in challenging Annexure A1 clarification, nearly after 'four years' of its issuance, more so, when the original order i.e. Annexure A9, which was directed to be enforced in Annexure A1 still stands and not challenged ?. Are the applicants justified in raising said challenge despite having no grievance in respect of Annexure A1 in the earlier round of selection proceedings, pursuant to Annexure A3 notification of the year 2004 ? Is the Tribunal justified in simply setting aside W.P(C) No. 32141 of 2009 and O.P.(CAT) No. 2947 of 2011 : 2 : Annexure A1 order applicable throughout India and ordering review of the exercise involving reversion/loss of seniority of other candidates without impleading them in the party array ? Are the petitioners/Railways not entitled to have a declaration that the course pursued by them is perfectly in tune with the law declared by the Apex Court in R.K. Sabharwal and Others Vs. State of Punjab and Others [(1995) 2 SCC 745], Union of India and Others Vs. Virpal Singh Chauhan and Others [(1995) 6 SCC 684] and M. Nagaraj and others Vs. Union of India and Ors. [(2006) 8 SCC 212] i.e. after the advent of 'post-based roster', replacing the vacancy based roster ?. These are some of the important questions to be answered in these petitions filed by the Department/Railways who were the official respondents before the Tribunal.

2. W.P(C) No. 32141 of 2009 is stated as the lead case. The parties and proceedings are referred to as given in the said case, except wherever it is mentioned separately.

3. Heard Mr. S. Radhakrishnan, the learned standing counsel for the petitioners/Railways and Mr. Govindaswamy, the learned counsel for the party respondents concerned. W.P(C) No. 32141 of 2009 and O.P.(CAT) No. 2947 of 2011 : 3 :

4. Before proceeding with the facts of the case, it will be worthwhile to have a look at the reservation scenario, as it exists as on date. The land mark judgment with reference to Article 16 (4) on reservation was rendered by a '9 member Bench' of the Supreme Court in Indra Sawhney Vs. Union of India [(1992) 3 SCC Supp. 217]. The Constitution was amended as per the 77th amendment, whereby sub Article 4-A was introduced to Article 16; by virtue of which, reservation was made possible in the case of 'promotion' as well. The provision was further amended as per 85th amendment, whereby the 'seniority' was also caused to be protected in such cases.

5. Indepth analysis of the principles of reservation and filling up of the vacancies was made by a Constitution Bench of the Apex Court [5 member Bench] in R.K. Sabharwal 's case [(1995) 2 SCC 745]; whereby it was held that post-based roster was to be brought into effect. The dictum was followed in Virpal Singh's case [(1995) 6 SCC 684]; explaining the 'catch-up theory' with respect to the seniority to be maintained.

6. Another Constitution Bench of the Supreme Court [of 5 members] had occasion to consider the matter again in Nagaraj's W.P(C) No. 32141 of 2009 and O.P.(CAT) No. 2947 of 2011 : 4 : case [(2006) 8 SCC 212], whereby the concept of reservation was explained, also dealing with the extent of reservation, maximum reservation, necessity to bring about a level playing field etc. as given in paragraphs 39, 40, 43,47, 48, 50, 55, 61 and 69. From the above, it is clear that the concept of 'catch up theory' referred to in Virpal Singh's case [cited supra] was done away with, [whereby the SC/ST candidates were made to wait despite the earlier promotion, till the general candidates joined duty in the appropriate slot and to have the seniority in the feeder category maintained thereafter].

7. Pursuant to the declaration of law by the Apex Court in R.K. Sabharwal's [cited supra] case, whereby the vacancy-based roster was ordered to be replaced by 'post-based roster'. Annexure A9 order was issued by the Railway Board on 07.10.2002. Later, there arose some doubts as to the filling up of the concerned slots, particularly, as to how the SC/ST candidates appointed by promotion on their own merit and not owing to reservation/relaxation of qualification had to be adjusted in the post-based roster. This was clarified as per Annexure A1 order dated 20.06.2003 issued by the Railway Board in the following W.P(C) No. 32141 of 2009 and O.P.(CAT) No. 2947 of 2011 : 5 : manner:

"Some of the Zonal Railways have raised doubts regarding Para-(i) of the above quoted letter and sought a categorical clarification as to how the SC/ST candidates appointed by promotion on their own merit and not owing to reservation or relaxation of qualifications is to be adjusted in the post based roster.

In this context, it is clarified that in selection posts, SC/ST candidates who are selected by applying the general standard and whose names in the select list/panel appear within the number of unreserved vacancies are to be treated as selected on their own merit. For example, suppose there are a total of 10 vacancies for which a panel/select list is to be prepared. Out of them, six vacancies are unreserved and four are reserved for SCs/STs. First six candidates in the select list/panel who have been selected by applying the general standard will be adjusted against unreserved vacancies irrespective of the fact whether they or some of them belong to SC or ST category. SC/ST candidates selected for remaining four reserved vacancies, whether selected on general standard or by giving relaxations/concessions as per W.P(C) No. 32141 of 2009 and O.P.(CAT) No. 2947 of 2011 : 6 : existing instructions on the subject, shall be adjusted against reserved vacancies. Similarly, in case of non- selection promotions, SC/ST candidates who are senior enough to be within the number of unreserved vacancies and are included in the panel/selection list without getting any relaxation/concession will be treated as own merit candidates.

The clarifications issued vide Board's letter No. 97-E(SCT)I/25/24, dated 30.6.1999 (Bahri's 152/199, p.151), are superseded by Board's letter of even number dated 7.8.2002 (Bahri's 128/2002, p.147). The principles laid down vide Board's letter of even number dated 07.08.2002 (Bahri's 128/2002, p.147) should be made applicable in all the promotions held after its issue.

This disposes of S.C. Railway's reference No. P (RES)171/Policy/Vo.X dated 20.2.2003."

8. As obvious from Annexure A1, the Railway Board's principles laid down in letter/proceedings dated 07.08.2002 [Annexure A9] were ordered to be made available to all the promotions held after Annexure A1 and as such Annexure A1 is only a clarification of Annexure A9, never adding anything or affecting any modification to Annexure A9.

W.P(C) No. 32141 of 2009 and O.P.(CAT) No. 2947 of 2011 : 7 :

8. Accordingly, a 'post-based roster' was issued by the Railways as borne by Annexure A2 dated 21.08.1997 with reference to R.K. Sabharwal's case [cited supra]. Paragraphs 2 to 4 of the said proceedings are relevant and hence are extracted below:

"2. The Courts also held that persons belonging to reserved categories, who are appointed on the basis of merit and not on account of reservation are not to be counted towards the quota meant for reservation.

3. With a view to bringing the policy of reservation in line with the law laid down by the Supreme Court, it has been decided that the existing 40 point vacancy based rosters of promotional categories shall be replaced by post based rosters. All the Zonal Railways, Production Units and Associated Offices of the Railway Board should therefore, prepare the rosters for Groups C and D posts based on principles elaborated in the Explanatory Notes given in Annexure - I and illustrated in the Model Roster as given in Annexure II and Annexure III.

4. The principles for preparing the rosters elaborated upon in Explanatory notes are briefly recapitulated below :

W.P(C) No. 32141 of 2009 and O.P.(CAT) No. 2947 of 2011 : 8 :

(a) The number of points in the roster shall be equal to the number of posts in the cadre. In case there is any increased or decrease in the cadre strength in future, the rosters shall be expanded or contracted correspondingly;

(b) Cadre, for the purpose of roster, shall mean a particular grade and shall compromise the number of the posts to be filled by a particular mode of recruitment in terms of the codal/manual provisions or Railway Board's instructions issued from time to time.

Thus, in a cadre of, say 200 posts where the recruitment rules prescribed a ratio of 50 : 50 for direct recruitment and promotion, 2 rosters - one for direct recruitment and another for promotion (where reservation in promotion applies) - each comprising 100 points shall be drawn up on the lines of the respective model rosters. The cadre also means the sanctioned temporary posts, workcharged posts, supernumerary posts, shadow posts etc. in the grade.

(c) Since, reservation does not apply to transfer on deputation/transfer where rules prescribed a percentage of posts to be filled by this method, such number of posts of the grade shall be excluded while preparing the rosters.

W.P(C) No. 32141 of 2009 and O.P.(CAT) No. 2947 of 2011 : 9 :

(d) In the small cadre up to '13' posts the method prescribed for preparation of rosters does not permit the reservation to be made for both categories

- SC/ST. Therefore, enclosed roster (Annexure III) for cadre strength upto 14 posts may be followed. The principles of operating the rosters has been detailed in the Explanatory Notes. The reservation even in single post have been held as constitutional and valid recently by the Hon'ble Supreme Court in the case of Union of India and Others Vs. Madhav sio Gajanan Chauhba and others JT 1996(9) SC 320.

9. In the course of further proceedings, Annexure A3 notification was issued by the Railways on 30.09.2004 as to the selection for filling up the vacancies in the category of Loco pilots [Goods] in the scale of 5000 - 8000, alerting the 63 candidates mentioned therein [found as eligible to be considered and appointed], to get ready for selection. The vacancy position was also clearly mentioned therein, as on 01.07.2004. There were 103 vacancies with a break up of 15 for SC and 22 for ST, while remaining 66 were for unreserved. As per the eligibility norms, only those candidates, who were having LM 16/TR 11 holders as on 01.07.2004, were alone to be considered for selection. The date, W.P(C) No. 32141 of 2009 and O.P.(CAT) No. 2947 of 2011 : 10 : venue, time of written test etc. were to be notified later.

10. Among the 63 persons mentioned in Annexure A3, 59 candidates came to be selected as enlisted in Annexure A4 dated 19.03.2005 and all the above 59 persons came to be appointed by virtue of their merit in the 'unreserved category' as a total of 66 posts were vacant and available in the said sector itself. Among the said 59 candidates appointed, 11 candidates belonged to SC and 4 belonged to ST. But they also came to be accommodated as general merit candidates, because of sufficient number of vacancies in the general quota and also by virtue of their merit, to have appointed in the said category, virtually requiring no help by way of reservation or relaxation. Subsequently, 'four' more candidates, whose results were published only later, also came to be promoted as per Annexure A5 dated 13.03.2006 and they were also accommodated in the 'general category', as sufficient slots were available in the unreserved segment itself. Thus, among the total 66 seats [out of the total of 103] identified in the unreserved category, only 63 posts came to be filled up, leaving 'three' open posts to be carried forward along with the still remaining 15 seats earmarked for SC and 22 seats earmarked for ST, as given in W.P(C) No. 32141 of 2009 and O.P.(CAT) No. 2947 of 2011 : 11 : Annexure A3 notification. It is however pointed out that, as per Annexure A6 dated 18.10.2006, 'nine' more SC candidates came to be appointed from the carried forward vacancies of '15' SC slots and there was no dispute with regard to the appointment from any corner. The petitioners could not find a place in the said proceedings, as admittedly they were not qualified at that time.

11. In the meanwhile, Annexure A7 notification was issued by the Railways on 21.08.2006, alerting the 66 candidates named therein, to get ready for the written test and selection. The applicants in the O.A. had become qualified by that time and their names were also mentioned in Annexure A7. As a matter of fact, out of the 80 vacancies notified as per Annexure A7, as on 22.05.2006, 31 were un-reserved category, 21 belonged to SC and 28 pertained to ST. The applicants in the O.A. are placed at Sl. Nos. 43, 44, 46, 47, 49, 50 51, 52, 56, 57 and 64 in Annexure A7.

12. From among the 66 candidates mentioned in Annexure A7, only 32 came to be qualified and selected as per Annexure A8 dated 21.11.2006. There is only 'one' reserved candidate belonging to ST, placed at serial No.32 in Annexure A8 and all other persons from 1 to 31 were accommodated in the W.P(C) No. 32141 of 2009 and O.P.(CAT) No. 2947 of 2011 : 12 : general/unreserved category, against the available 31 slots in the un-reserved segment. The person by name Kumar D. at serial No. 31 of Annexure A8 is the last general merit candidate selected and shown at Serial No. 41 in Annexure A7, whereas the applicants who figure in Annexure A7 are only at lower levels from serial No. 43 onwards. As such, it is evident that merit was never compromised and only those candidates having higher credentials than the applicants were selected and appointed as per Annexure A8. Since the applicants belonged to 'unreserved category', they cannot be heard to say that they have any grievance in this regard, as they cannot aspire to be appointed against the slots earmarked for SC/ST under any circumstance, which vacancies have necessarily to be carried forward, to be filled up in the next selection exercise by way of general recruitment or by way of special recruitment, as the case may be. However without any regard to the actual facts and figures and purely on the basis of some misconceived idea as to the scope of filling up of posts, following the principles of reservation, the applicants sought to challenge the process by filing the O.A.s concerned; challenging Annexure A1 clarification dated 26.06.2003, Anenxure A7 notification 21.08.2006 and Annexure A8 W.P(C) No. 32141 of 2009 and O.P.(CAT) No. 2947 of 2011 : 13 : select list dated 21.11.2006.

12. The main contention was that the selection ought to have been with reference to the occurrence of vacancies and that the SC/ST candidates cannot be accommodated as a general candidates. The prayers raised in the O.A. are in the following terms:

(i) Call for the records leading to the issue of Annexure A1 and quash the same.

(ii)Declare that the selection process for the vacancies under the General, Scheduled Caste and Scheduled Tribe categories are to be finalized, taking into consideration the date of occurrence of the respective vacancies for these three different categories and by considering persons belonging to these categories in the order of occurrence vacancies with the final panel being prepared in the order of seniority.

(iii)Call for the records leading to the issue of Annexure A7 notification and quash the same to the extent it notifies 21 vacancies for SC candidates and 28 vacancies for the ST candidates.

(iv)Call for the records leading to the issue of Annexure A8 and quash the same to the extent it excludes the W.P(C) No. 32141 of 2009 and O.P.(CAT) No. 2947 of 2011 : 14 : applicants.

(v)Direct the respondents to re-assess the vacancies meant for each of the three categories - General, SC and ST in the light of the declaration in para 8 (ii) above and to fill up the existing vacancies by considering the applicants and to grant them the benefit of promotion (duly including the applicants at the appropriate places in Annexure A8) from the dates from which the promotions actually fell due with all consequential arrears flowing there form.

(vi)Award costs of and incidental to this application.

(vii)Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case.

13. The claim was opposed from the part of the Railways; mainly contending that O.A. itself was not maintainable; that it was belated with reference to challenge against Annexure A1 clarification dated 26.06.2003; that the proceedings were pursued strictly in conformity with the law declared by the Apex Court in R.K. Sabharwal's case [cited supra] and the subsequent rulings on the principles of reservation and maintenance of post-based roster; that Annexure A9 issued by the Railway Board on W.P(C) No. 32141 of 2009 and O.P.(CAT) No. 2947 of 2011 : 15 : 07.08.2002 was never under challenge; that the affected parties were never impleaded in the party array; and, further that, even if the filling up exercises is done with reference to the occurrence of the vacancies, it would not tilt the balance. The postilion has been explained as reproduced in Ground B of the writ petition which reads as follows :

"B. The basis of the case of the Applicants, is that, if the vacancies are filled up on the basis of the date of occurrence of the vacancies, they will be entitled for being included in Annexure A8 selection panel. This is a basically wrong approach. Thus it can be seen that out of 21 SC vacancies, at least 9 are carry forward vacancies, from the SC shot falls in the earlier selection. Similarly out of 28 vacancies reserved for ST at least 22 are carry forward vacancies. Therefore even if it is possible to trace out the date of occurrence of each and every vacancy, the first 31 carry forward vacancies (9 SC + 22 ST) have to go to them or to be reserved for them. Therefore what is available for the 31 UR hands and 18 reserved hands (12 SC + 6 ST on the basis of 15% reservation for SC and 7.5% reservation for ST in the total 80 notified vacancies) is only 49 vacancies, besides the carry W.P(C) No. 32141 of 2009 and O.P.(CAT) No. 2947 of 2011 : 16 : forward vacancies. Even if all the said 31 UR vacancies are taken up on a priority basis, the applicants will not come within the said 31, as is seen from Annexure A8. This is because all the UR vacancies are exhausted with Sl. No. 41 in Annexure A7, and Applicants are Sl. No. 43 and below that. Therefore, if the 18 vacancies of SC/ST (Reservation), are also intermingled with the 31 UR vacancies, it will not make any difference, ant it will not enable the applicants (who are juniors, not coming within the ragne of 31 UR employees) to be included in the selection panel of 31 persons. In other words, it will only lessen the chances of applicants. "

14. However, after hearing, the Tribunal referred to the illustration given by the applicants in paragraph 4(f) of the O.A and after simply reproducing the same, it was held on the next breath, that the "O.A. Succeeds", in turn directing the Department to review the entire exercise. The operative portion of the said verdict reads as follows :

"13. In view of the above, the O.A. succeeds. It is declared that Annexure A1 order is liable to be quashed and set aside and we do so. Respondents are directed to review, the promotion made and fill up the W.P(C) No. 32141 of 2009 and O.P.(CAT) No. 2947 of 2011 : 17 : vacancies in the same order as they occurred and prepare a revised panel. Those who may have to be reverted, be not reverted but adjusted against the carry forward vacancies. Their seniority, however, may undergo some changes, which may be effected after due notice to them. General candidates to be promoted on the basis of the above method of filling up would be placed in the seniority in the order of their promotion. Their promotion shall be notional from the date the promotion to others have been granted and actual from the date they assume duties of higher responsibilities. This drill be conducted within three months of the communication of this order. "

This made the petitioners/Department to approach this Court by way of these petitions.

15. Mr. Govindaswamy, the learned counsel appearing for the applicants submitted that the question mooted before the Tribunal was never whether the SC/ST candidates could be considered against the general merit quota based on their merit level, but was that after the verdict passed by the Supreme Court in R.K. Sabharwal's case [cited supra] and the subsequent decisions, the posts had to be identified and the recruitment had to W.P(C) No. 32141 of 2009 and O.P.(CAT) No. 2947 of 2011 : 18 : be effected only in respect of such posts. By virtue of the course pursued by the Railways, giving en-mass appointments to all selected candidates including the SC/ST candidates in the unreserved quota, that too, without pursuing timely selection process, all the slots of SC/ST candidates were left open and again forward giving undue benefit to the reservation segment, at the cost of the unreserved category like the applicants. If the posts are filled up, with reference to the date of arising of vacancies, the verdict passed by the CAT is liable to be sustained, submits the learned counsel. After such exercise, if there are carried forward vacancies of SC/ST, the applicants do not have any objection in filling up all such slots en-bloc, from the persons belonging to those categories. It is stated that there was no grievance even after issuance of Annexure A9 and that the issue has popped up only because of the interpretation/clarification given as per Annexure A1, which has been intercepted by the Tribunal. It is further pointed out that non-impleadment of the candidates concerned has not caused any prejudice to them, as the Tribunal has specifically stated in Ext. P5 order that they need not be reverted but could be adjusted against the carried forward vacancies and that their W.P(C) No. 32141 of 2009 and O.P.(CAT) No. 2947 of 2011 : 19 : seniority which may undergo some change could be effected only after issuing due notice to them.

16. The learned counsel for the applicants submitted that there was no dispute that a meritorious SC/ST candidate can be considered for unreserved slot, based on his merit. The grievance is that, since the slots have not been identified based on the post- based roster as per the decision of the Supreme Court in R.K. Sabharwal's case [cited supra] and Virpal Singh's case [cited supra] and further since the slots have not been filled up by the Railways, immediately on arising the vacancies in the slots, but, taken up together for en-mass filling up on a given date, much loss and prejudice have been caused to the general category. All the SC/ST candidates will be adjusted in the merit quota/unreserved seat, facilitating to carry forward all the slots of SC/ST to the next recruitment process and the said extent will again be deducted from the total vacancies available in the next selection process; virtually reducing the extent available to the unreserved candidates. The cycle is repeated this time again, leaving all the slots of SC/ST vacant, pursuant to their accommodation against unreserved category and this will continue for ever. The learned W.P(C) No. 32141 of 2009 and O.P.(CAT) No. 2947 of 2011 : 20 : counsel submits that, earlier, when the vacancy-based roster was in vogue, there was a provision for de-reserving the vacancies after a stipulated time/rounds of selection. But after implementation of the 'post-based roster' pursuant to the R.K. Sabharwal's case [cited supra], de-reservation has gone and the vacancies of SC/ST will have to be carried forward throughout. It is also pointed out by the learned counsel that, if there is any deficiency in SC/ST, it is for the Railways to notify the SC/ST vacancies and conduct a Special Recruitment or to make such other appropriate arrangement, depending upon the organizational needs. If the carried forward vacancies are taken apart, the total vacancies available for the next recruitment process will be lesser and only the requisite extent of such lesser extent can be earmarked as the vacancies for SC/ST in the said recruitment process, in turn, throwing the field of choice for the unreserved category wider.

17. The learned counsel for the applicants pointed out that Annexure A4 did not indicate whether 'x' or 'y' was appointed against the 'General quota' or 'Reserved quota', but for saying that altogether 59 persons were appointed, who include 11 persons belonging to SC and 5 persons belonging to ST. Whether the W.P(C) No. 32141 of 2009 and O.P.(CAT) No. 2947 of 2011 : 21 : number of vacancies considered [as earmarked in the relevant category] is correct or not will be revealed only in the next process of selection. It is in the said circumstances, that the grievance has been projected challenging the next notification - i.e. Annexure A7 and Annexure A8 select list, along with the mischief created by Annexure A1.

18. In this context, it is to be noted that the distribution of vacancies was mentioned in Annexure A3 dated 30.09.2004 as well, with regard to the earlier round of selection, which is not under challenge. Out of total 103 vacancies, 66 vacancies were unreserved, where as 15 vacancies were earmarked for SC and 22 for ST [which apparently include the carried forward vacancies, at least in the case of ST]. When it comes to Annexure A7 dated 21.08.2006, total number of posts was shown as 80, out of which SC category was entitled for 15% (12) and ST category 7.5% (6). The distribution of vacancies shown in Annexure A7 is that, out of the total of 80 posts, 21 have been earmarked for SC, 28 for ST and only the balance 31 were left as unreserved. With regard to the challenge against distribution of the vacancies among the applicants in Annexure A7, particularly as to the carried forward W.P(C) No. 32141 of 2009 and O.P.(CAT) No. 2947 of 2011 : 22 : vacancies of SC/ST [contending that this much of posts were actually not existing and could not have been carried forward], it is to be noted that there is no challenge against Annexure A3 or A4, thus leaving figures shown in Annexure A3 as the distribution of posts/carried forward posts as unchallenged and final. This being the position, the applicant in the O.A. cannot be heard to say that the extent of seats identified for SC/ST is wrong in any manner.

19. It is true that, once the 'post-based roster' is introduced as demonstrated in Annexure A3 and the cadre strength is completely filled up, there is no relevance for the percentage/quota earmarked for the concerned category, unless additional posts are created, to be segregated by applying the ratio. In so far as the cadre strength remains the same, the posts identified locating the SC/ST seats shall be filled up as and when any vacancy is resulted in the said slot by the very same category candidate i.e. all the slots earmarked for general candidate will continue to be filled up by general category and similar posts identified for the SC/ST will continue to be filled up by the candidates belonging to the said segments.

20. As contended by the learned standing counsel for the W.P(C) No. 32141 of 2009 and O.P.(CAT) No. 2947 of 2011 : 23 : Railways, the contention of the applicants is that the slots have to be filled up with reference to the date of occurrence of the vacancies and if it be so, the vacancies may have to be filled up even by accommodating a merit candidate against a reserved slot. If the said proposition is accepted, it will be against the ruling rendered by the Apex Court in R.K. Sabharwal's case [cited supra] and Virpal Singh's case [cited supra]. The learned counsel further submitted that, as pointed out in Ground C, it is not practical to locate the occurrence of vacancy. It is also pointed out that how the vacancies are to be identified, how the vacancies are to be filled up, including the anticipatory vacancies etc. are dealt with under paragraphs 215 (f) (i) and 215 (f) (ii) of the Special Rules in the Railways Establishment Manuel. By virtue of the above Rules, the vacancy will have to be worked out for a given period and to be proceeded with for filling up, which alone has been pursued by the petitioners. It is also pointed out that the aforesaid provisions in the Railway Establishment Manuel have not been subjected to challenge by the applicants. The Railway Establishment Code having been formulated in exercise of the powers under Article 309 of the Constitution of India, it is of W.P(C) No. 32141 of 2009 and O.P.(CAT) No. 2947 of 2011 : 24 : binding nature as declared by the Apex Court as per the decision reported in 1978 KLT 23 [Railway Board and Ors. Vs. T.R. Subramaniyan and Ors.].

21. Point to be considered is, whether any prejudice has been caused to the applicants in any manner. Even if the concerned slots earmarked for SC/ST are left intact and only the remaining slots are accommodated by the merit general candidates, accommodating the members of the SC/ST based on their merit [carrying forward the SC/ST vacancies to be filled up by Special Recruitment or otherwise], the position may not undergo any change. If it is decided to pursue special recruitment for such number of posts, the total number for posts open for selection in the next round of selection process will only be the balance, after minusing the said figure. Even if, the total number of posts is reckoned adding the carried forward vacancies as well, then quite naturally, the carried forward vacancies have to be deducted from the total figure of the subsequent selection exercise, to work out the actual extent available to the unreserved category as well as the reserved category - SC/ST.

28. In this context, it is necessary to ascertain the cadre W.P(C) No. 32141 of 2009 and O.P.(CAT) No. 2947 of 2011 : 25 : strength of the post in question as on the date of issuance of Annexure A3 and also as on the date of Annexure A7. When the matter came up for consideration before this Court on 08.11.2016, we required the learned standing for the Railways to furnish the details in the form of a statement. In pursuance of the said order, separate statements dated 14.11.2016 have been prepared and handed over by the counsel, after serving a copy to the learned counsel for the applicants. The factual position in respect of W.P. (C) No. 32141 of 2009 [Palakkad Division] is as follows :

i. Total Cadre Strength and occupied Strength of Loco Pilots(Goods) in Palakkad Division as on 01.07.2004, the cutoff date mentioned in Annexure A3 dated 30.09.2004 is furnished below:

         LP(Goods)                      TOTAL        SC   ST   UR
         Sanctioned Cadre Strength          235      35    18   18
                                                                2
         Occupied posts                     216      31    1    18
                                                                4
         Available vacancies                 19       4    17   +2
         Vacancies expected on              84       11    5    68
         account of promotion to
         Higher Grade & Anticipated
         vacancies
         TOTAL VACANCY                      103      15    22   66

W.P(C) No. 32141 of 2009 and
 O.P.(CAT) No. 2947 of 2011

                                    : 26 :


         i.     Total Cadre Strength and occupied Strength of Loco

Pilots(Goods) in Palakkad Division as on 22.05.2006, the cutoff date mentioned in Annexure A7 dated 21.08.2006 is furnished below:

        LP(Goods)                       TOTAL      SC   ST UR
        Sanctioned Cadre Strength          235      35   18   182
        Occupied posts                     191      08   0    183
        Available vacancies                 44      27   18    +1
        Vacancies expected on               45      03   10   32
        account of promotion to
        Higher Grade & Anticipated
        vacancies
        Candidates empanelled               -9      -9   0     0
        Net Vacancy                         80      21  28    31

         ii.    Details of Vacancies available in Goods Driver as on

01.07.2004 & 22.05.2006 with spilt-up are as detailed below.

                   Vacancies as on            TOTAL SC ST UR
                   01.07.2004                    103    15  22    66
                 Vacancies carried forward       19     4    17   +2
                 from 01.07.2004
                 Vacancies as on                 80     21  28    31
                 22.05.2006
                 Vacancies carried forward       44     27   18   +1
                 from 22.05.2006

Explanation Regarding 21 number of SC vacancies in Annexure A7 dated 21.08.2006 With the introduction of Post Based Roster, the W.P(C) No. 32141 of 2009 and O.P.(CAT) No. 2947 of 2011 : 27 : reservation is applicable to sanctioned strength of a cadre, accordingly, the sanctioned strength of Goods Driver as on 01.07.2004 & 22.05.2006 is 235 and 35 posts are earmarked for SC community duly applying 15% reservation to SC employees. Hence 15% of 235 is 35.25 round off to 35. Whereas this Hon'ble Court court has calculated the 15% of 80 i.e. total number of vacancies.

At the time of assessment of vacancy as on 22.05.2006, only 8 SC employees are available against the sanction of

35.

                       Description                          Posts/
                                                           Vacancies
    Cadre strength of Loco Pilots                            235
    Post reserved for SC employees (15%)                      35
    Number of SC employees charged against SC                 8
    employees
    Balance to be filled by SC candidates                  35-8=27
    Anticipated vacancies including promotion.                3
    Net vacancy to be filled by SC candidates              27+3=30
    SC employees already in the existing panel                9
    Remaining vacancies to be filled by SC employees       30-9 =21
    (as per Annexure A7)

           VII.    The Cadre strength and occupied strength after

implementing Annexure A8 dated 21.11.2006 with spilt-up is furnished below. (SC- 26, ST -18 & UR -+32 ) LP(Goods) TOTAL SC ST UR Sanctioned Cadre Strength 235 35 18 182 Occupied posts 223 09 0 214 Available vacancies 12 26 18 +32 W.P(C) No. 32141 of 2009 and O.P.(CAT) No. 2947 of 2011 : 28 : At present all employees mentioned in the O.A. are working at Selam Division after the bifurcation of Palakkad Division.

23. The factual position in similar lines in respect of O.P. (CAT) No. 2947 of 2011 [Trivandrum Division] as contained in the statement is as given below :

In compliance with the oral direction issued by this Hon'ble Court on 08.11.2016, the required details as forwarded by the Trivandrum Division by E- mail on 14.11.2016 is furnished below.

I Cadre Strength and occupied Strength As on 09.07.2008 along with vacancies:

        Category         Sanction     Actual              Vacancy
                            ed
 Loco Pilot (Mail)          90          82                      8
 Loco Pilot                 17          19                     +2
 (Passenger) I
 Loco Pilot                 48          41                      7
 (Passenger) II
 Loco Pilot (Goods) I       25          22                      3
 Loco Pilot (Goods) II      67          64                      3
                                                (17 officiating on adhoc basis)

Notification for Loco Pilot (Goods) II was issued for the following vacancies taking into account vacancies expected due to promotion to higher grade.


                  SC : 9, ST : 5, UR : 12 -- Total = 26
     Loco Pilot (Mail & Passenger)             =     13 ( 8SC, 4 ST
                                                              1 UR)

W.P(C) No. 32141 of 2009 and
 O.P.(CAT) No. 2947 of 2011

                                   : 29 :


    Loco Pilot (Goods) I                   =     3 (1 SC, 1 ST & 1
                                                        UR)
    Loco Pilot (Goods) II                   =     3 UR
    Power Controller/Chief Controller      =     5 (no reservation)
    Voluntary Retirement                   =     2 UR
                                                     26 vacancies

II Cadre Strength and occupied Strength As on 30-10-

2008 along with vacancies:

Category Scale Sanctioned Actual Vacancy Loco Pilot (Mail) 6000-8000 90 84 6 Loco Pilot 6000-8000 17 18 +1 (Passenger) I Loco Pilot 5500-9000 48 33 15 (Passenger) II Loco Pilot (Goods) I 5500-9000 25 19 6 Loco Pilot (Goods) II 5000-8000 67 79 +12 III Details of carried forward vacancies As on 09-07-2008:

Shortfall SC ST UR 9 5 12 IV Details of carried forward vacancies As on 30-10-2008:

                          Required         Available        Shortfall
                   Fo    SC      ST       SC       ST      SC       ST
                   r
 Loco Pilot (Mail) 90    13       7       12        7       1       -

W.P(C) No. 32141 of 2009 and
  O.P.(CAT) No. 2947 of 2011

                                   : 30 :


 Loco Pilot        65     10      5         10     -        -       5
 (Passenger) I &
 II
 Loco Pilot        92     14      7        12      5       2        2
 (Goods) I & II

V Shortfall vacancy forwarded from Loco Pilot (Goods) I SC : 1, ST : 1 VI LP(Goods) current position Category Sanctioned Actual Vacancy Shortfall UR Loco Pilot 80 71 9 SC ST 8 (Goods) 2 +1

23. After hearing and after perusing the contents of the above statements, the learned counsel for the applicants fairly conceded that after the distribution of posts and filling up of the vacancies as given in the statement are correct, the applicants do not have any further case.

25. In the above circumstances, we find that the verdict passed by the Tribunal in O.A. No. 161 of 2007 and O.A. No. 458 of 2009 directing petitioners herein to review the promotions already made is not correct or sustainable and that O.A.s. are liable to be W.P(C) No. 32141 of 2009 and O.P.(CAT) No. 2947 of 2011 : 31 : dismissed. Accordingly, Exts.P5 and Ext. P4 verdict passed by the Tribunal in W.P.(C) No. 32149 of 2009 and O.P.(CAT) No. 2947 of 2011 are set aside. Both the O.As. are dismissed.

Petitions stand allowed. No cost.

The statements dated 14.11.2016 filed by the learned standing counsel for the Railways will form part of the record.

sd/-

P. R. RAMACHANDRA MENON, JUDGE sd/-

P. SOMARAJAN, JUDGE kmd /True copy/ P.A. to Judge

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