IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 12TH JANUARY 2009 / 22ND POUSHA 1930 WP(C).No. 25440 of 2008(C) --------------------------------------- PETITIONER(S): PETITIONERS -------------------------- 1. R.V.RADHAKRISHNAN NAIR, AGED 39 YEARS S/O. C.G. VISWANATHAN, OFFICE OF THE INSPECTOR (TRAIN ESCORTING) RAILWAY PROTECTION FORCE, TRIVANDRUM CENTRAL RAILWAY STATION,TRIVANDRUM, RESIDING AT NO.93-H, ANWAR GARDEN, POOJAPPURA P.O. TRIVANDRUM. 2. V.SUBRAMANIAN, AGED 44 YEARS, S/O. VARADA REDDIAR, HEAD CONSTABLE, RAILWAY PROTECTION FOROCE, TIRUCHIRAPALLY JUNCTION TIRUCHIRAPALLY, PRESENTLY RESIDING AT NO.96-F, RPSF COLONY, KHAJAMALAI, TIRUCHIRAPALLY- 23. 3. P.V. RAJU, AGED 38 YEARS, S/O. P.V.VARGHESE, HEAD CONSTABLE, RAILWAY PROTECTION FORCE, TRICHUR, PERMANENT ADDRESS: PADINIAREMOLEL HOUSE,PUTHUPADYY POST, MUVATTUPUZHA ERNAKULAM DISTRICT. 4. D.JOSEPH DEVAMANI, AGED 38 YEARS, S/O. D.N.DEVANESAM, HEAD CONSTABLE, RAILWAY PROTECTION FORCE, TRAINING CENTRE, KIMBER GARDEN, KAJAMALAL, TIRUCHIRAPALLI, RESIDING AT NO.45/B, RAILWAY PROTECTION FORCE QUARTERS, RPF TRAINING CENTRE, KHAJAMALAI, TIRUCHIRAPPALLI-21. 5. A.P. DEEPAK,AGED 39 YEARS, S/O. P. BHRATHAN, CONSTABLE, RAILWAY PROTECTION FORCE, CANNANORE RESIDING AT : "KAJAL NIWAS" VALIYANORE PANCHAYAT, KINAR STOP VARAM P.O., CANNANORE DISTRICT. W.P.(C) NO.25440/2008 6. V.PADMAKUMAR, AGED 38 YEARS, S/O. M.VELAPPAN NAIR, HEAD CONSTABLE, SPECIAL INTELLIGENCE BUREAU, RAILWAY PROTECTION FORCE, TRIVANDRUM RESIDING AT KUNCHU VEEDU, DEVANAGAR 42, KAZHAKUTTAM, TRIVANDRUM. BY ADV. SRI.T.C.GOVINDA SWAMY SMT.D.HEERA SMT.R.R.REJITHA SRI.G.SHYAM RAJ RESPONDENT(S): RESPONDENTS1 --------------------------- 1. THE DIRECTOR GENERAL, RAILWAY PROTECTION FORCE, NEW DELHI. 2. THE CHIEF SECURITY COMMISSIONER RAILWAY PROTECTION FORCE, CHENNAI. 3. THE DIVISIONAL SECURITY COMMISSIONER, RAILWAY PROTECTION FORCE, TRIVANDRUM. 4. THE DIVISIONAL SECURITY COMMISSIONER, RAILWAY PROTECTION FORCE, PALGHAT. 5. THE DIVISIONAL SECURITY COMMISSIONER, RAILWAY PROTECTION FORCE, TIRUCHIRAPALLY. ADV. SRI.T.P.M.IBRAHIM KHAN,SR.SC, RAILWAYS FOR R1 TO 5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.25440/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE ORDER BEARING NO.2001/SEC(E)/PM-2/3 PT. DT. 4.6.08 ISUED BY THE IST RESPONDENT. P2:- COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN OP. NO.12361/02(V) DT. 6.12.05. P3:- COPY OF THE JUDGMENT DT. 20.2.06 IN WRIT APPEAL NO.346/06 OF THE HON'BLE COURT . P4:- COPY OF THE RBE NO.203/04 DT. 15.9.04. P5:- COPY OF THE NOTIFICATION BEARING NO.X/P 608/ASIPF/LDC/2000 DT. 31.1.2006 ISSUED BY THE 2ND RESPONDENT. P6:- COPY OF THE LETTER NO.VXP/608/ASIPF/40%/06 DT. 31.7.06 ISSUED BY THE CHAIRMAN & THE DIVISIONAL SECURITY COMMISSIONER. P7:- COPY OF THE MEMORANDUM BEARING NO.X/P608/ASIPF.LDC DT. 7.11.06, ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT. P8:- COPY OF THE CORRIGENDUM ISSUED BY THE CHIEF SECURITY COMMISSIONER UNDER NO.S/P.608/ASIPF/LDC /2000 DT. 20.5.2006. P9:- COPY OF THE JUDGMENT DT. 15 JANUARY 2008 IN WP(C) NO.32302/07 OF THIS HON'BLE COURT. P10:- COPY OF THE LAWYER NOTICE DT. 31.1.2008, ADDRESSED TO THE IST RESPONDENT. P11:- COPY OF THE BROAD SHEET CONTAINING THE DETAILS OF MARKS OBTAINED BY 82 CANDIDATES WHO ATTENDED THE VIVA VOCE. P12:- COPY OF THE ORDER BEARING NO.S/P.608/ASIPF SELECTION/U.R.70 DT. 13/16.6.07 ISSUED FOR AND ON BEHALF OF THE 2ND RESPONDENT, CHIEF SECURITY COMMISSIONER. P13:- COPY OF THE ORDER BEARING N.VXP/608/ASIPF/U/R.70 DT. 14.8.08, ISSUED FROM THE OFFICE OF THE DIVISIONAL SECURITY COMMISSIONER , RPF/THIRUVANANTHAPURAM. RESPONDENT'S EXHIBITS R2(A):- COPY OF THE LETTER NO.X/P 608 AISPF/LDC/2000 DT. 29.5.2006 ISSUED BY THE RESPONDENT. R2(B):- COPY OF THE LETTER NO.VX/P.608/ASIPF/LDC/06 DT. 28.6.06 ISSUED BY THE RESPONDENT. /TRUE COPY/ P.A. TO JUDGE tss T.R.RAMACHANDRAN NAIR, J -------------------------------------------------- W.P.(C) NO:25440 of 2008 --------------------------------------------------- Dated this the 12th day of January, 2009 JUDGMENT The petitioners are aggrieved by Ext.P1 order by which their claim for promotion against 40% quota have been rejected, finding that there are no vacancies to accommodate them. 2. The petitioners are presently working as Head Constables except the 5th, who is working as a Constable. As per the Recruitment Rules relating to the post of Assistant Sub Inspector (ASI) of Railway Protection Force, 40% of the vacancies in the cadre are to be filled from among the Head Constables/Constables with 10 years service by a process of Limited Departmental Competitive Examination. 3. In the year 2001, a Notification was issued for filling up 23 vacancies in the cadre of Assistant Sub Inspector under the 40% quota. The examination was conducted and the entire selection process was over as on 26.7.2001. Subsequently, the entire selection was cancelled. This was the subject matter of the O.P.No.12361 of 2002. By Ext.P2, the said Writ Petition was allowed. Again the matter was taken up by the respondents in Writ Appeal No.346 of 2006, which was also dismissed. This is evident from Ext.P3. Between the years, 2001 to 2006, no selection was conducted against 40% quota. Thereafter, a Notification, Ext.P5 dtd.31.1.2006, to fill up 50 vacancies against 40% quota, was issued and the petitioners again wrote the examination and qualified in wpc:25440 of 2008 2 the written examination. 4. Ext.P6 is the list of qualified staff under the 40% quota and the petitioners' names have been included as Serial Nos.43, 73, 50, 26, 15 and 38 respectively. Finally, a panel consisting of 33 persons was issued. That means there was a reduction of 17 posts. 5. The petitioners approached the higher authorities and the respondents came out with the reply that 17 vacancies had been reduced so as to accommodate the persons covered by Exts.P2 and P3 judgments. The petitioners thereafter challenged the same in W.P.(C) No.32302 of 2007 which was disposed of by Ext.P9 judgment. It was held that, the implementation of Exts.P2 and P3 judgment shall not result in any detriment to petitioners. The authorities were directed to take a fresh decision, in accordance with the findings contained in the judgment. It is, thereafter, that the present order was passed. Presently, the petitioners contend that the stand taken in Ext.P1 that they cannot be accommodated in the vacancies, in view of the fact that 17 persons are accommodated to implement Ext.P2 judgment is not correct. According to them, going by the directions in Ext.P9 they were entitled to be accommodated since many persons who were not eligible to be accommodated against 40% quota have been accommodated under 60% quota and therefore, going by the direction in Ext.P9 judgment they should have been given priority in accordance with the number of vacancies to accommodate the petitioners. It is wpc:25440 of 2008 3 revealed from the interim order dtd.16.9.2008 passed by this Court in this Writ Petition that six vacancies are available in the said post. 6. The respondents have filed a detailed counter affidavit. The stand taken in the counter affidavit in a nutshell is that the cancellation of the Notification in the year 2001, led to the challenge in Ext.P2 judgment and by the time second notification was issued they had to comply with the directions in Ext.P2 judgment. Accordingly, corrigendum notification was issued. Even though a challenge was made against the notification that was repelled and the notification was upheld in Ext.P9 judgment. Therefore, the respondents cannot go back against the principles in P9 judgment. It is therefore submitted that what was done is only to comply with the directions in Ext.P2 judgment and naturally they had to accommodate 17 persons against the vacancies notified in the year 2006. It is also contended that a fresh notification was issued in the year 2008. The petitioners are not eligible to participate in the said selection, since they have already availed two chances. It is admitted in para 16 that petitioners have qualified in the selection. 7. A reading of Ext.P9 judgment shows that the entire aspects which led to the dispute have been considered in detail. This Court was of the view that the vacancies which had to be filled up by eligible candidates under 40% quota by conducting Limited Departmental Competitive Examination. It was also found that the entire vacancies wpc:25440 of 2008 4 under the 40% quota available as on the date of Ext.P1 had been notified under Ext.P1 and therefore, the respondents had accommodated the said 17 persons from the 50 vacancies which were notified in Ext.P1. It was held that this Court was not in a position to say that the action taken was illegal and the respondents had to take appropriate steps to comply with the judgment Ext.P7 ((P2) herein.) Accordingly the corrigendum notification was upheld and thereafter further directions were issued in the light of the contention raised by the petitioners to ascertain whether the quota earmarked as 40% were filled up by the other quota viz 60%. A reading of the operative portion of the judgment shows that this Court directed the respondents to take fresh decision after ascertaining whether the vacancies, which had to be filled up under the 40% quota and available as on the date of Ext.P9 were filled up by persons under 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 Ext.P2 rank list, over and above the number of vacancies which have already been filled up by virtue of Ext.P3. Proceedings in this regard may be passed by the first respondent within four months from the date of receipt of a copy of the judgment. Therefore, an exercise had to be made to find out whether petitioners could be accommodated against 40% quota. 8. A reading of Ext.P1 shows that 66 vacancies which existed in 40% quota were adjusted and promotion was given on the basis of wpc:25440 of 2008 5 Seniority/Suitability by giving one time exemption in terms of the Board's letter No.PC-III/200/CRC/1(RPF/RPSF) dated 15.9.2004. The authority was of the view that it is not feasible at this juncture to make available any vacancy in favour of the petitioners. But as already noticed, in the operative portion of the judgment this Court held that if such a contingency arises there shall be a proportionate increase in the number of vacancies to be made available to persons included in Ext.P2 rank list over and above the number of vacancies which have already been filled by virtue of Ext.P3. Therefore, even though in the subsequent notification in the year 2006, 17 persons had to be accommodated to implement the directions in Ext.P2 judgment, the petitioners had also acquired a right for accommodation if as a matter of fact persons from the 60% quota have been accommodated between 2001 to 2006 in excess of the quota. Therefore the view taken in Ext.P1 that the petitioners cannot be accommodated in any vacancies cannot be sustained. It is clear that the issue was directed to be considered in the correct perspective and hence what was specified as per Ext.P9 judgment cannot be overlooked by the respondents and the finding in paragraph 6 of the judgment of this Court in Ext.P9 is binding on the respondents who were already parties to the said judgment. If that be so, I am of the view that the persons like the petitioners need not suffer at the hands of the respondents and their claim for accommodation survives. The finding in Ext.P1 that wpc:25440 of 2008 6 petitioners are unqualified is not correct, in view of the admitted fact that they have qualified in the selection. 9. Only 6 out of the selected candidates as per Ext.P6, have come up seeking for appointment. Pursuant to the interim order, 6 posts of A S I have been kept unfilled. Therefore, Ext.P1 is quashed. It is declared that the petitioners are entitled for appointment to the post of ASI/RPF and appropriate orders shall be passed within a period of 2 months from the date of receipt of a copy of this judgment. The claim for arrears of pay etc. cannot be granted obviously because they have not worked in the post in question. The Writ Petition is allowed. No costs. T.R.RAMACHANDRAN NAIR, JUDGE bps