IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 OP.No. 19503 of 2001(V) ----------------------- PETITIONER(S): --------------- BABU MAMMAN, S/O. T.V. MAMMAN, BADGE NO. 1385, JUNIOR HEAVY EQUIPMENT OPERATOR-CUM0MECHANIC GR.V, COCHIN REFINERY LTD., AMBALAMUGHAL. BY ADV. SRI.P.K.IBRAHIM SRI.SUNNY P MARKOSE RESPONDENT(S): --------------- THE COCHIN REFINERIES LTD., REP. BY ITS MANAGING DIRECTOR, AMBALAMUGHAL. BY ADV. SRI.E.K.NANDAKUMAR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 20/01/2009, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 19503/2001. ------------------------------------------------------------------- EXT.P1 COPY OF NOTIFICATION DT. 31-5-2001. EXT.P2 STATEMENT DT. 20-6-2001. EXT.P3 REPRESENTATION DT. 27-6-2001. EXT.P4 NOTICE DT. 22-6-2001. EXT.P5 NOTIFICATION DT. 31-5-2001. EXT.P5(a) NOTIFICATION DT. 28-5-2001. EXT.P5(b) NOTIFICATION DT. 31-5-2001. EXT.P5(c) DO. DT. 31-5-2001. EXT.P5(d) DO DT. 31-5-2001. EXT.P6 MEMORANDUM DT. 22-7-1997. EXT.P6 MEMORANDUM DT. 29-8-1997. EXT.P7 DETAILS OF PROMOTION IN FEBRUARY 2001. EXT.P7(a) DO. IN JUNE, 2001. EXT.P7(b) DO IN AUGUST 2001. EXT.P8 NOTICE DT. 24-8-2001. EXT.P8(a) NOTICE DT. 16-10-2001. EXT.P8(b) NOTICE DT. 18-10-2001. EXT.P9 COPY OF STATEMENT. RESPONDENT'S EXHIBITS: ------------------------------------- EXT.R1(a) OFFICE MEMORANDUM DT. 20-7-2000. EXT.R1(b) REPLY LETTER DT. 29-6-2001. EXT.R1(c) DECISION OF GRIEVANCE COMMITTEE. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 19503 of 2001 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 20th January, 2009. J U D G M E N T The petitioner is an Ex-serviceman, who was re-employed in Cochin Refinaries Ltd. He entered service as a General Worker and by promotion became Junior Heavy Equipment Operator-cum- Mechanic, which is the feeder category for promotion to the post of General Craftsman (Heavy Equipment Operator/Mechanic). By Ext. P1 notification, the respondents invited applicationS for promotion to the post of General Craftsman (Heavy Equipment Operator/Mechanic). However, in the same, it was specifically stated that out of the two vacancies, one was reserved for scheduled castes and the other was reserved for scheduled tribes. The petitioner is challenging Ext. P1 notification on the ground that there are only two posts in the category of General Craftsman (Heavy Equipment Operator/Mechanic) and both cannot be reserved, which would violate the reservation rule, which states that there cannot be more than 50% reservation in an year. The petitioner further submits that when there are only two posts, both cannot be reserved. In support of his contention, he relies on the decision of the Supreme Court in State of Karnataka and others v. K. Govindappa and another, (2009) 1 SCC 1. 2. In the counter affidavit, the respondents rely on Ext. R1(a) official memorandum issued by the Government of India, wherein, relying on Article 16(4B) of the Constitution of India, it was directed that for filling up backlog vacancies, it is not necessary to strictly follow the 50% rule. Further, it is stated that for the purpose of reservation, the post of General Craftsman in the Cochin Refineries Ltd., has been treated as one class consisting of eight posts, of which four only has been reserved. The respondents therefore support their action. It is further submitted that since there were backlog to meet O.P.. No. 19503/2001 -: 2 :- reservation requirements, in accordance with Ext. R1(a), both the vacancies which arose during the particular year were reserved for SC/ST. 3. In answer to the same, the learned counsel for the petitioner points out that in so far there are only two posts available in the particular cadre, the arguments of the respondents are not applicable, which is the dictum laid down in Govindappa's case (supra). He submits that the posts of General Craftsman in four different disciplines cannot be grouped together as one cadre, in so far as the qualifications required for promotion to each are separate. According to him, the petitioner can aspire for promotion only to the post of General Craftsman (Heavy Equipment Operator/Mechanic) and he is not qualified for seeking promotion to the other three categories and therefore the four categories together cannot form a cadre for the purpose of reservation, which is what has been held in Govindappa's case. He further points out that even assuming that it can be done, in so far as there are four posts in the category of General Craftsman (Fitter), the two posts in that category could easily have been reserved without violating the reservation principle. 4. I have considered the rival contentions in detail. 5. Admittedly, the petitioner has been subsequently promoted to the post of General Craftsman (Heavy Equipment Operator/Mechanic). The petitioner is unable to tell me as to whether such promotion is in a vacancy vacated by one of those persons appointed pursuant to Ext. P1 notification on account of further promotion. The respondents are also unable to tell me whether there are other posts in General Craftsman (Heavy Equipment Operator/Mechanic). Apart from that, admittedly two other persons have been promoted pursuant to Ext. P1 notification. This Court had, O.P.. No. 19503/2001 -: 3 :- by an order in July, 2007, recorded the details of the persons promoted pursuant to the impugned notifications on the submission of the counsel for the 1st respondent. The names of those persons are also given in the order, namely, Sri. K. Manoharan and Sri. T. S. Francis. Counsel for the petitioner sought adjournment on being informed of the same. Evidently, the time was granted to implead those persons who are likely to be affected in the event of a decision favourable to the petitioner in this original petition. From the above, it is evident that the petitioner was aware of the persons who were promoted pursuant to Ext. P1. If this original petition is to be decided in favour of the petitioner, certainly the promotion granted to at least one of them would have to be cancelled. Therefore, they are necessary parties in this original petition. In spite of being informed about the details of those two persons, the petitioner has not chosen to implead those persons in this original petition. Therefore, I am satisfied that the original petition is bad for non-joinder of parties and for that reason the original petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/