IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 12TH NOVEMBER 2008 / 21ST KARTHIKA 1930 OP.No. 21032 of 2002(D) -------------------------------- PETITIONER(S): ----------------------- M.CHANDRAN PILLAI, ASI/EXE NO.8431 50043, CISF UNIT, VSSC THUMBA, TRIVANDRUM. BY ADV. SRI.M.RAJAGOPALAN SRI.RAJIT RESPONDENT(S): ------------------------ 1. THE DIRECTOR GENERAL OF CISF, CISF HEAD QUARTERS, LODHI ROAD, NEW DELHI - 3. 2. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI. 3. THE COMMANDANT, CISF UNIT VSSC THUMBA, TRIVANDRUM. ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R1& 2 SRI.SAJEESH.K.B., ADDL.CGSC FOR R1TO3 SRI.JOHN VARGHESE, ASSISTANT SG FOR R1TO3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 12/11/2008, THE COURT ON THE SAMY DAY DELIVERED THE FOLLOWING: OP.No. 21032 of 2002(D) APPENDIX PETITIONER'S: EXT.P1 - TRUE COPY OF THE UNIT SERVICE ORDER DATED 22.12.1988. EXT.P2- TRUE COPY OF THE CERTIFICATE ISSUED BY THE CISF TRAINING CENTRE, BHILLAI. EXT.P3 - TRUE COPY OF THE CHART SHOWING PROMOTION TO ASI. EXT.P4 - TRUE COPY OF THE REPRESENTATION DATED 21.3.2000. EXT.P5 - TRUE COPY OF THE REPRESENTATION DATED 29.6.2000. EXT.P6 - TRUE COPY OF THE SERVICE ORDER DATED 25.1.2001. EXT.P7 - TRUE COPY OF THE JUDGMENT IN O.P. NO.22919/2000 OF THIS HON'BLE COURT. EXT.P8 - TRUE COPY OF THE REPRESENTATION DATED 4.2.2002. EXT.P9 - TRUE COPY OF THE ORDER NO. E-31016/72/2000/ESTT-1/414 DATED 9.4.2002. /TRUE COPY/ PA TO JUDGE rhs S.SIRI JAGAN, J ================== O.P.No.21032 of 2002 ================== Dated this the 12th day of November, 2008. J U D G M E N T The petitioner was enrolled in the CISF on 2.4.1984 as Head Constable(Driver). He satisfactorily completed probation and was confirmed in that post on 1.1.1987 by Ext.P1 order. In CISF, there are two categories of Head Constables; one is Head Constable (General Duty) and the other is Head Constable (Driver). The next promotion post for Head Constables is that of ASI. For becoming eligible for such promotion Head Constables have to pass a course called Promotion Cadre Course(PCC). The petitioner passed the course on 13.3.1993 as evidenced by Ext.P2. Although the promotion to the post of Assistant Sub Inspector (ASI) from among Head Constable (GD) and Head Constables (Driver) is in the ratio 5:1 as per the recruitment rules, according to the petitioner, from 1996 onwards there was large deficiency in the number of Head Constable (Drivers) promoted as ASI. He has demonstrated the deficiency by producing Ext.P3 chart wherein for the period from 1996-2001, he has given the total number of Head Constables promoted, the total number of Head Constable (GD) O.P.No.21032 of 2002 - 2 - and the total number of Head Constable (Drivers)promoted as per 5:1 ratio and the deficiency in the quota prescribed for Head Constable (Drivers). Since inspite of this deficiency, the petitioner was not given promotion, the petitioner filed Ext.P5 representation on 29.6.2000. Despite the same, again promotions were made without reference to the ratio prescribed. Therefore the petitioner filed O.P. No.22919/2000 before this Court. While that original petition was pending, by Ext.P6 order dated 25.1.2001, the petitioner was promoted as ASI. In view of the said promotion, this court by Ext.P7 judgment, disposed of O.P. No. 22919/2000 recording the promotion and directing the appropriate authority to consider the representation to be filed by the petitioner seeking retrospective effect to the promotion. Pursuant thereto, the petitioner filed Ext.P8 representation. The same was considered and rejected by Ext.P9, stating that the petitioner was promoted as and when his turn came as per seniority and therefore there is no merit in his contention. The petitioner is challenging Ext.P9 order and seeking the following reliefs: “(a) Call for the records leading upto Ext.P9 and quash Ext.P9 by the issuence of a writ of certiorari or any other direction or order. (b) Direct the respondents to give promotion to the petitioner as Assistant Sub Inspector retrospectively with effect from 1993 onwards with all consequential benefits O.P.No.21032 of 2002 - 3 - (c) Declare that the petitioner is entitled to be promoted as ASI from 1993.” 2. The contention of the petitioner is that from 1996 onwards Head Constable (Drivers) have been discriminated in the matter of promotion as ASI and they were not given their due as per the ratio prescribed between Head Constable (GD) and Head Constable (Drivers) for such promotion. Relying on Ext.P3 which was prepared by the petitioner himself based on the promotions made, the petitioner submits that during 1996, 1997, 1998, 1999 and 2000 as per ratio there was deficiency in the quota prescribed for Head Constable (Drivers) amounting to 32, 33, 20, 10 and 41 respectively. The petitioner would submit that the petitioner is entitled to be promoted in one of those vacancies which should have been marked for Head Constable (Drivers) and which were in fact filed up by Head Constable (GD), subsequent to 13.3.1993 when the petitioner became eligible for such promotion. 3. A counter affidavit has been filed on behalf of the respondents 1 to 3. In the same, they have stated that Ext.P3 has not been worked out correctly in accordance with ratio. According to them, Ext.P3 has been worked out on the basis of number of persons promoted in a year which is not correct. They would submit that the ratio should have been applied to O.P.No.21032 of 2002 - 4 - the total number of vacancies for promotion in the rank of ASI for which DPC was called for as in paragraph 11 of the counter affidavit. They would further submit that the zone of consideration is worked out on the basis of such vacancies. The petitioner was not considered for promotion since the zone of consideration at the relevant time was only up to 785 in the seniority list and the petitioner was only 878 in the seniority list. As and when in 2000 the petitioner's turn came, he would duly considered and promoted is the contention raised. The respondents therefore submit that there is no merit in the writ petition. 4. I have considered the rival contentions in detail. 5. At the outset I am constrained to say that the counter affidavit filed by the respondents 1 to 3 dealing with the specific contentions of the petitioner is as vague as vague can be. The petitioner's specific contention based on Ext.P3 is that for years between 1996 and 2000 there was deficiency in filling up the quota prescribed for Head Constable (Drivers) in the matter of filling up the promotion based on ASI. He has also specifically stated the number of promotions made each year and the number of Head Constable (GD) was promoted and number of Head Constable (Drivers) was promoted and the deficiency as per the quota prescribed. This is answered by the O.P.No.21032 of 2002 - 5 - respondents 1 to 3 by paragraphs 11 to 15 of the counter affidavit which reads thus: “11. Based on the vacancies allotted to the feeder category of HC/GD ad HC/Dvr, the zone of consideration is worked out from the seniority list of HC/GD and HC/Dvr. The number of persons in the feeder categories called for the zone of consideration will be twice the number of vacancies +4, if vacancy is more than 5. 12. The DPC prepares the proceedings for each feeder category. Based on the DPC proceedings, if it is found that there is no suitable HC/Dvrs for promotion to ASI/Exe, the vacancy shall be filled from amongst the approved list of HC/GD. 13. The petitioner has worked out 5:1 ratio (Ext.P3) on the number of persons promoted in a year which is not correct. The petitioner should have calculated the 5:1 ratio on the total number of vacancy released for promotion to the rank of ASI/Exe for which DPC was called for as given in para 11 above, and not on the numbers promoted. 14. The number of vacancies allotted to the feeder category of HC/GD and HC/Dvrs is as 5:1 ratio. The zone of consideration is worked out on the basis of these vacancies. There were no such application said to have been submitted by the petitioner on 21.3.2000. The Ext.P4 filed along with the OP is the application dated 16 March 2000, which was considered and promptly replied by the respondents. 15. The petitioner was not considered for promotion since the zone of consideration, seniority list upto 785 was only called for DPC/ In the supplementary DPC, the zone of consideration was upto PSL 960. The petitioner's seniority number being 878 was included in the zone of consideration. The petitioner case was not considered for promotion earlier was not because the petitioner was unfit for promotion but because he did not came under the zone of consideration.” I am again constrained to say that these averments are vague in respect of the deficiency in the quota prescribed for Head Constable (Drivers). If the respondents had a case that the number of promotions stated in Ext.P3 are not correct, they O.P.No.21032 of 2002 - 6 - would have certainly categorically stated so. What they state is that the petitioner has calculated the ratio based on the number of persons promoted in a year and the petitioner should have calculated the ratio on the total number of vacancies released for promotion for which DPC was called for. They have not chosen to prove the same by producing the ratio rule and giving the number of vacancies as claimed by them. Therefore the possible conclusion is that the number of promotions given in Ext.P3 are correct. If the number of promotions given in Ext.P3 for each year are correct, then applying 5:1 ratio clearly there is deficiency in the ratio prescribed for Head Constables (Drivers). Instead they vaguely denied Ext.P3 saying that the ratio should have been applied to the total number of vacancy for promotion to the rank of ASI for which DPC was called for. But they did not come forward with the contention that for each year the total number of vacancies for which DPC considered for promotion were so much and how the ratio was applied. Therefore in the absence of any specific denial of the number of promotions given in Ext.P3, I am inclined to accept the contentions of the petitioner that there was deficiency and the petitioner was not given his due promotion. If that is accepted I have to accept that the petitioner has become eligible for promotion as ASI in the O.P.No.21032 of 2002 - 7 - quota prescribed for Head Constable (Drivers) in 1996 itself. 6. Accordingly, I hold that the petitioner was entitled to be promoted as Head Constable (Driver) in 1996 as per the ratio prescribed. Appropriate orders giving retrospectivity to the promotion given to the petitioner by Ext.P7, with effect from 1996, shall be issued an consequential monetary benefits given to the petitioner, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. But I make it clear that if for giving effect to the said direction corresponding date of promotion has to be given to others senior to the petitioner among Head Constable (Drivers) the same shall be done, based on the deficiency shown in Ext.P3. But since no such person has approached this Court they will not be entitled to any monetary benefits of such anterior date of promotion. The original petition is allowed as above. S.SIRI JAGAN, JUDGE rhs