IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 WA.No. 966 of 2009() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.25440/2008 Dated 12/01/2009 .................... APPELLANT(S): -------------- 1. THE DIRECTOR GENERAL, RAILWAY PROTECTION FORCE, NEW DELHI. 2. THE CHIEF SECRETARY COMMISSIONER, RAILWAY PROTECTION FORCE , CHENNAI. 3. THE DIVISIONAL SECURITY COMMISSIONER, RAILWAY PROTECTION FORCE, THIRUVANANTHAPURAM. 4. THE DIVISIONAL SECURITY COMMISSIONER, RAILWAY PROTECTION FORCE, PALAKKAD. 5. THE DIVISIONAL SECURITY COMMISSIONER, RAILWAY PROTECTION FORCE, THIRUCHIRAPPALLY. BY ADV. SRI.T.P.M.IBRAHIM KHAN,SR.SC, RAILWAYS RESPONDENT(S): --------------- 1. R.V. RADHAKRISHNAN NAIR, AGED 39 YEARS, SON OF C.G. VISWANATHAN, OFFICE OF THE INSPECTOR (TRAIN EXCORTING) RAILWAY PROTECTION FORCE, THIRUVANANTHAPURAM CENTRAL RAILWAY STATION, THIRUVANANTHAPURAM RES. AT NO. 93 H, ANWAR GARDEN, POOJAPPURA P.O., TVM. 2. V.SUBRAMANINA, AGED 44 YEARS, SON OF VARADA REDDIAR , HEAD CONSTABLE RAILWAY PROTECTUION FORCE, THIRUCHIRAPPALLY JUNCTION, TIRUCHIRAPPALLY PRESENTLY RESIDING AT NO. 96 F., RPSF COLONY, KHAJAMALAI, TIRUCHIRAPPALY 23. 3. P.V. RAJU, AGED 38 YEARS, SON OF P.V. VARGHESE, HEAD CONSTABLE RAILWAY PROTECTION FORCE, THRISSUR, PERMANENT ADRESS, PADINIAREMOLEL HOUSE, PUTHUPADY POST, MUVATTUPUZHA ERNAKULAM DIST. 4. D. JOSEPH DEVAMANI, AGED 38 YEARS, SON OF D.N. DEVANESAM, HEAD CONSTABLE, RAILWAY PROTECTION FORCE, TRAINING CENTRE, KIMBER GARDEN RAJAMALAI, TIRUCHIRAPPALLI, RESIDING AT NO. 45/B RAILWAY PORTECTION FORCE QUARTERS, RPF TRAINING CENTRE, KHAJAMALAI, TIRUCHIRAPPALLI-21. 5. A.P. DEEPAK, AGED 39 YEARS, SON OF P. BHARATHAN, CONSTABLE,RAILWAY PROTECTION FORCE, CANNANORE, RESIDING AT KHAJAL NIWAS, VALIYANORE, PANCHAYATH, KINAR STOP, VARAM P.O., CANNANORE DIST 6. V.PADMAKUMAR, AGED 38 YEARS, SON OF M. VELAPPAN NAIR, HEAD CONSTABLE, SPECIAL I INTELLIGENCE BUREAUE, RAILWAY PRTECTION FORCE, THIRUVANANTHAPURAM, RESIDING AT KUNCHU VEEDU, DEVANAGAR, 42, KAZHAKUTTAM, THIRUVANANTHAPURAM. SRI.T.C.GOVINDA SWAMY THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ----------------------------------------- W.A.No. 966 of 2009 ----------------------------------------- Dated this the 15th June, 2009 JUDGMENT The respondents in the Writ Petition are the appellants. The respondents herein were the writ petitioners. The brief facts of the case are the following: 2. The respondents were Head Constables/Constable working under the appellants. They were aspiring for promotion to the post of Assistant Sub Inspector. The method of appointment is by promotion. 60% of the vacancies are reserved for senior hands, whereas 40% of the vacancies are reserved for those persons clearing a competitive test. Only two chances will be given for the incumbents in the feeder category to take competitive test. In the year 2001, steps were taken by the appellants to fill up 17 vacancies under the aforementioned 40% quota. After drawing up of the panel for selection, the panel was cancelled and no promotions were made. The said action of the appellants was challenged before WA.966/09 2 this Court which led to Exhibit P2 judgment, which was confirmed in Exhibit P3 judgment of the Division Bench. As a result of the said judgment, persons included in the panel drawn up in 2001 were entitled to get 17 vacancies. In the meantime, Exhibit P4 was implemented and as a result, all vacancies available were utilised for promotion, based on seniority alone. In that process, 66 vacancies, which were available to be filled up under the 40% quota set apart for those clearing competitive test were also utilised for implementing Exhibit P4. Later, 50 vacancies were notified under the 40% quota in 2006. The petitioners took the test and qualified for the interview. They were included in Exhibit P6 panel of candidates found eligible for viva voce test. But soon thereafter, the 50 notified vacancies were reduced to 33 by the appellants. The reason was that 17 vacancies were diverted from the 50 notified vacancies to implement Exhibits P2 and P3 judgments. The said decision was challenged before this Court, which led to passing of Exhibit P9 judgment by the learned Single Judge. The relevant portion of the said judgment reads as follows: WA.966/09 3 “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 Exhibit 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 Exhibit 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 Exhibit P2 rank list, over and above the number of vacancies which have already been filled up by virtue of Exhibit 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.” 3. Apparently, in obedience of the direction in Exhibit P9, the competent authority considered the matter and issued Exhibit P1 proceedings. Challenging Exhibit P1, the present Writ Petition was filed. The learned Single Judge allowed the Writ Petition and ordered to appoint the writ petitioners in the 40% quota. Feeling aggrieved by the above direction of the learned Single Judge, this Writ Appeal is filed. 4. We heard the learned counsel for the appellants, Sri.T.P.M.Ibrahim Khan and also Sri.T.C.Govinda Swamy, WA.966/09 4 learned counsel appearing for the respondents/writ petitioners. 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 in the present case. The seniority stream enjoyed the additional advantage of 17 vacancies and therefore, those WA.966/09 5 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. The Writ Appeal is disposed of as above. K.BALAKRISHNAN NAIR, JUDGE C.T.RAVIKUMAR, JUDGE vgs.