IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 WP(C).No. 15787 of 2006(S) -------------------------- OA.341/2005 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH PETITIONERS: --------------- 1. CENTRAL BOARD OF TRUSTEES OF EMPLOYEES' PROVIDENT FUND ORGANISATION REPRESENTED BY REGIONAL PROVIDENT FUND COMMISSIONER (HRD), 14, BHIKAJI CAMA PLACE, NEW DELHI-110 066. 2. THE CENTRAL PROVIDENT FUND COMMISSIONER, EMPLOYEES' PROVIDENT FUND ORGANISATION, BHIKAJI CAMA PLACE, NEW DELHI-110 066. 3. THE REGIONAL PROVIDENT FUND COMMISSIONER -1, EMPLOYEES' PROVIDENT FUND ORGANISATION, REGIONAL OFFICE, KERALA, THIRUVANANTHAPURAM-695 004. BY ADV. SRI.S.GOPAKUMARAN NAIR RESPONDENTS: 1. V.RETNAKARAN, LDC, EMPLOYEES' PROVIDENT FUND, SUB REGIONAL OFFICE, KANNUR. 2. JANARDHANAN.P.V., LDC, EMPLOYEES' PROVIDENT FUND, SUB REGIONAL OFFICE, KANNUR. 3. K.RAJNISH, LDC, EMPLOYEES' PROVIDENT FUND, SUB REGIONAL OFFICE, KANNUR. 4. JOSE MATHEW, LDC, EMPLOYEES' PROVIDENT FUND, SUB REGIONAL OFFICE, KOTTAYAM. 5. P.VINOD, LDC, EMPLOYEES' PROVIDENT FUND, SUB REGIONAL OFFICE, KANNUR. 6. C.M.BALAKRISHNAN, LDC, EMPLOYEES' PROVIDENT FUND, SUB REGIONAL OFFICE, KANNUR. 7. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF LABOUR, NEW DELHI. BY ADV. SRI. AJITH KRISHNAN, ADDL.CGSC FOR R7 SRI.VELLAYANI SUNDARARAJU FOR R1 TO R6 SMT.P.MEENAKUMARI FOR R1 TO R6 SMT.K.V.LEKSHMY FOR R1 TO R6 SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL-R7 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/08/2009 ALONG WITH CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.NO.15787 OF 2006 APPENDIX PETITIONERS'S EXHIBITS: Ext.P1: True copy of O.A..No.341/2005. Ext.P2: True copy of reply statement. Ext.P3: True copy of the order of the Administrative Tribunal, Ernakulam Bench in O.A.No.341/2005. RESPONDENTS'S EXHIBITS: NIL K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.P(C)NOS. 15787, 15888, 17045 & 20680 OF 2006 --------------------------------------------- Dated this the 7th day of August, 2009 JUDGMENT Balakrishnan Nair, J. These Writ Petitions are filed against the common order of the Central Administrative Tribunal, Ernakulam Bench dated 28.2.2006, disposing of O.A. Nos. 281 of 2005 and 341 of 2005. Therefore, they are heard and disposed of by this common judgment. W.P.(C) No.17045 of 2006. 2. This Writ Petition is treated as the main case for the purpose of referring to the facts and exhibits. The petitioners were Lower Division Clerks working in the Employees' Provident Fund Organisation, Kerala region. The grievance raised in this Writ Petition is concerning their promotion to the post of Upper Division Clerk. It is common ground that the cadre strength of Upper Division Clerks in Kerala region is 480. The method of filling up those posts is in the ratio of 1:1 between seniority promotion and promotion based on departmental test. That is, the first method is based on seniority-cum-fitness and the second method is based W.P.(C)No.15787/2006 & Connected Cases 2 on a departmental test and those who clear the test will be promoted. The Departmental test for promotion was held in 1997 to fill up the 50% quota set apart for that purpose. The candidates who cleared the test were promoted on various dates between 10.11.1997 and 19.2.1998. It is submitted that all the persons who cleared the test were promoted. Later, again in January, 1999 another departmental test was held. The petitioners were candidates who appeared for the examination and came out successful. Though there were several vacancies in the said list, only three persons were promoted from it on 12.11.1999. Thereafter, the list of candidates who had cleared the test was never operated and no promotions were ordered for about five years. Finally, in 2004, the cadre of Upper Division Clerk was abolished and a new cadre, Social Security Assistant, was created. All the Upper Division Clerks working in the Department were re-designated as Social Security Assistants. The grievance of the petitioners canvassed before the Tribunal was that they were not promoted, though there arose several vacancies between the publication of the list of the successful candidates in June, 1999 and the creation of the new cadre in 2004. In between, no written test was conducted for general candidates. So, the vacancy available for general candidates should have been filled up from that list published in June, 1999. The petitioners also have a case that the reserved vacancies which W.P.(C)No.15787/2006 & Connected Cases 3 remained unfilled continuously for four years should have been de- reserved and should have been made use of to accommodate the persons who cleared the test held in 1999. The Tribunal, which heard the matter, declined to accept the aforesaid contentions of the writ petitioners, but gave certain directions to the Employees' Provident Fund Organisation to accommodate them as Social Security Assistants. Feeling aggrieved by the order of the Tribunal, both sides have come up before this Court by filing this batch of Writ Petitions. The Employees' Provident Fund Organisation attacked the direction of the Tribunal to absorb the petitioners and others who remained without promotion in the L.D.C. cadre as Social Security Assistants. The applicants have come up before this Court, feeling aggrieved by the refusal of the Tribunal to uphold their claim for the admitted open vacancies in the general quota and also for not accommodating them in the unfilled vacancies set apart for SC/ST community. 3. Ext.P25 is the order of the Tribunal. In paragraph 8 of the order, the Tribunal has given a table of vacancies available in the general quota and reserved quota and the details of the incumbents actually in position etc. for the period from 1998 to 2004. The said portion of paragraph 8 is quoted for convenient reference. W.P.(C)No.15787/2006 & Connected Cases 4 Abstract as on 31.3.1998 General SC ST Total Sanctioned strength 187 35 18 240 In position 188 7 2 197 Excess short 1 (-)28 (-)16 (-)43 Abstract as on 31.3.1999 Sanctioned strength 187 35 18 240 In position 185 7 2 194 Excess short (-)2 (-)28 (-)16 (-)46 Abstract as on 31.3.2000 Sanctioned strength 187 35 18 240 In position 184 7 2 193 Excess short (-)3 (-)28 (-)16 (-)46 Abstract as on 31.3.2001 Sanctioned strength 187 35 18 240 In position 183 5 2 190 Excess short (-)4 (-)30 (-)16 (-)50 Abstract as on 31.3.2002 Sanctioned strength 187 35 18 240 In position 176 5 2 183 Excess short (-)11 (-)30 (-)16 (-)57 W.P.(C)No.15787/2006 & Connected Cases 5 Abstract as on 31.3.2003 Sanctioned strength 187 35 18 240 In position 195 21 3 219 Excess short (-) 8 -14 (-)15 (-)21 Abstract as on 31.3.2004 Sanctioned strength 187 35 18 240 In position 179 21 2 202 Excess short (-) 8 -14 (-)16 (-)38 4. The vacancies available from 1.4.1999 to 31.3.2002 should have been filled up from among the petitioners and others, who cleared the test and were included in Ext.P9. But, we notice that for the said period, only three persons from the said list alone were promoted. There were three vacancies to accommodate them in the general quota between 1.4.1999 to 31.3.2000. But, as on 31.3.2001, there were four vacancies for general candidates and as on 31.3.2002, there were eleven vacancies available for them. But, we notice that no one from Ext.P9 were appointed in those vacancies. We find no explanation for this omission to fill up those vacancies from Ext.P9, in the reply statement filed by the Employees' W.P.(C)No.15787/2006 & Connected Cases 6 Provident Fund Organisation before the Tribunal. So, we are of the view that those fifteen vacancies (4 +11), which were available as on 31.3.2001 and 31.3.2002, should have been filled up from among the candidates included in Ext.P9. The reserved quota cannot be filled up from the general candidates. For that a conscious decision should have been taken by the appointing authority and thereafter approved by the competent authority. But, the appointing authority has not chosen to do so. Therefore, the claim of the petitioners for the reserved vacancies cannot be upheld. 5. We also feel that the direction issued by the Tribunal without any reference to the rules, or rather in violation of the rules, to accommodate the remaining Lower Division Clerks as Social Security Assistants cannot be sustained. The Tribunal cannot act as a knight errant and help every one in distress. It can act only according to law. 6. In the result, we dispose of the Writ Petition directing the competent authority, the 4th respondent, to promote the persons included in Ext.P9 list, after excluding the first three who were already promoted, to the four vacancies available as on 31.3.2001 and eleven vacancies available as on 31.3.2002. The promotions, as directed above, shall be ordered within two months from the date of production of a copy of this W.P.(C)No.15787/2006 & Connected Cases 7 judgment. The promotees shall be entitled to all consequential benefits. W.P.(C) Nos.15787, 15888 & 20680 of 2006 The judgment in W.P.(C) No.17045 of 2006 will govern these Writ Petitions also. (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.P.(C)No.15787/2006 & Connected Cases 8 K.BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.P(C) NOS.15787, 15888, 17045 & 20680 OF 2006 JUDGMENT 7th August, 2009 W.P.(C)No.15787/2006 & Connected Cases 9