IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 14TH JANUARY 2008 / 24TH POUSHA 1929 WP(C).No. 499 of 2008(S) ------------------------ OA.234/2007 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS: ------------ 1. UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN P.O., CHENNAI-3. 2. THE ADDITIONAL DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT. 3. THE SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT. BY ADV. SMT.M.R.SREELETHA, SC, RAILWAYS RESPONDENTS: ------------- 1. P.V. JAYASANKER, S/O.SANKARA MARAR, ASSISTANT GUARD,SHORANUR JUNCTION,SOUTHERN RAILWAY NOW RESIDING AT THULASI,MANIKKULATHUPARAMBU, THENHIPALAM (P.O), MALAPPURAM DISTRICT. 2. K.A. MOHAMMED ISMAIL, S/O.K.ASSANAR, ASSISTANT GUARD, ERODE, SOUTHERN RAILWAY, NOW RESIDING AT RAZIYA MANZIL, MELEMURALI, NEAR MARIYAMMAN TEMPLE, INDUSTRIAL ESTATE (P.O), PUDUPPARIYARAM, PALAKKAD DISTRICT. 3. RAJAGOPALAN C., S/O.M.GOVINDAN NAIR, ASSISTANT GUARD, STATION MANAGERS OFFICE, SHORANUR, NOW RESIDING AT MANGAT HOUSE, PARUTHIPRA, SHORANUR (P.O), PIN-679 121. 4. K.K. VIJAYAN, S/O. KRISHNAN, ASSISTANT GUARD, SHORANUR, SOUTHERN RAILWAY, NOW RESIDING AT KARAMANA HOUSE, PARUTHIPRA, SHORANUR (P.O), PIN-679 121. 5. GIRIJAVALLABHAN, S/O. LATE M.SANKARAN NAIR, ASSISTANT GUARD, STATION MANAGERS OFFICE, ERODE, NOW RESIDING AT AMMU NIVAS, KAVASSERY P.O., PALAKKAD DISTRICT. 6. GOPINATHAN P., CABIN MASTER, SOMANUR STATION, SOUTHERN RAILWAY, TAMIL NADU. (FORMAL RESPONDENTS) 7. RAJAMANICKAM, CABIN MASTER, VANJIPALAYAM RAILWAY STATION, SOUTHERN RAILWAY, TAMIL NADU. 8. SATHYANATHAN, CABINMASTER, ANNANGUR, SOUTHERN RAILWAY,TAMIL NADU 9. ARUNACHALAM K., CABIN MASTER, UTTUKULI, SOUTHERN RAILWAY, TAMIL NADU. 10. SUGUNAN E.V., CABIN MASTER, C/O. TRAFFIC INSPECTOR, ERODE JUNCTION, SOUTHERN RAILWAY. 11. ABDUL RAHIMAN, SENIOR COMMERCIAL CLERK, PUGALUR,SOUTHERN RAILWAY. 12. PAKIANATHAN, SENIOR TRAIN CLERK, CONTROL OFFICE, SOUTHERN RAILWAY, PALAKKAD. 13. BALAN K., SENIOR TRAIN CLERK, CONTROL OFFICE, SOUTHERN RAILWAY, PALAKKAD. 14. ABDUL HAMEED M., SENIOR COMMERCIAL CLERK, SOUTHERN RAILWAY, PALAKKAD JUNCTION. 15. SUJITH A.M., SENIOR TRAIN CLERK, CONTROL OFFICE, SOUTHERN RAILWAY, PALAKKAD. 16. PUSHPARAJ V., SENIOR TRAIN CLERK, CONTROL OFFICE, SOUTHERN RAILWAY, METTUR DAM. 17. ARU AMRETHA RAJA RAJAN, SENIOR TRAIN CLERK, SOUTHERN RAILWAY, ERODE JUNCTION. 18. VENKITASAMY, CABIN MASTER, SOUTHERN RAILWAY, PERUNDURAI RAILWAY STATION, TAMIL NADU. 19. PARAMASIVAM P., CABIN MASTER, SOUTHERN RAILWAY, PERUNDURAI RAILWAY STATION, TAMIL NADU. 20. VIJAYAKUMAR V.T., SENIOR TRAIN CLERK, CONTROL OFFICE, SOUTHERN RAILWAY, PALAKKAD. 21. SANTHAKUMAR M.M., SENIOR TRAIN CLERK, CONTROL OFFICE, SOUTHERN RAILWAY, PALAKKAD. 22. R.SUBRAMANI, CABIN MASTER, SOUTHERN RAILWAY, IRUGUR, TAMIL NADU. 23. M.K. GEORGE, CABIN MASTER, DASAMPATTY, SOUTHERN RAILWAY, TAMIL NADU. 24. THANGAVELU M., CABIN MASTER, MAVELIPALAYAM, SOUTHERN RAILWAY, TAMIL NADU. 25. SIVALINGAM K., CABIN MASTER, VEERAPANDIA ROAD,SOUTHERN RAILWAY, TAMIL NADU. 26. M.J. BABU, SENIOR COMMERCIAL CLERK, NILAMBUR ROAD,NILAMBUR, SOUTHERN RAILWAY, TAMIL NADU. 27. SAJEEV C.K., CABIN MASTER, KAKKANKARAI, SOUTHERN RAILWAY, TAMIL NADU. 28. DEVAMANI, SENIOR TRAIN CLERK, METTUR DAM, SOUTHERN RAILWAY. 29. RAMDAS, SENIOR ASSISTANT GUARD, SHORANUR,SOUTHERN RAILWAY. 30. NINAN C.J., SENIOR ASSISTANT GUARD, SHORANUR,SOUTHERN RAILWAY. 31. VENUGOPAL M.C., SENIOR ASSISTANT GUARD, SHORANUR,SOUTHERN RAILWAY. 32. UNNIKANNAN K., ASSISTANT GUARD, ERODE, SOUTHERN RAILWAY. 33. GUNASEKARAN K., ASSISTANT GUARD, ERODE, SOUTHERN RAILWAY. 34. KRISHNAN C., ASSISTANT GUARD, ERODE, SOUTHERN RAILWAY. BY ADV.SMT.K.GIRIJA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.N. RAVINDRAN, JJ. --------------------------------------------------------------- W.P(C).NO.499 OF 2008-S -------------------------------------------------------------- Dated this the 14th day of January, 2008. JUDGMENT Balakrishnan Nair, J: The writ petitioners are respondents 1 to 3 in O.A.No.234/2007. The respondents herein are the applicants and the party respondents in the said O.A. The applicants are respondents 1 to 5. They are Assistant Guards working in the Palaghat Division of the Railways. On completion of three years of service, they are eligible to be considered for appointment to the post of Goods Guard. A quota is set apart for the category of Assistant Guards/Senior Assistant Guards, which come to 30% of the total vacancies. Out of the total vacancies, 60% are to be filled up by promotion in the following ratio:- Assistant Guards/Senior Assistant Guards 30% Train Clerk & Senior Train Clerk 15% Switchmen, Shunting Master, Shunting Jamedar, Pointsman, Leverman, Cabinman and Gate Keeper (Yard Staff) 10% Ticket Collector, Sr. Ticket Collector, Commercial Clerk and Senior Commercial Clerk 5%. WPC.499/08 . 2 The competent authority issued Ext.P3 notification inviting volunteers from various groups for promotion to 29 vacancies of Goods Guards. Out of the 29 vacancies, 19 were unreserved and 10 were reserved for SC/ST in the ratio of 7:3. The volunteers were called for written test, in which 190 employees appeared. 118 employees cleared the test and became eligible for being considered for promotion. From among the group of Assistant Guards/Senior Assistant Guards, 14 persons appeared and 13 among them cleared the test. But, from among the unreserved candidates of the pool of Assistant Guards/Senior Assistant Guards, the competent authority only promoted six candidates. According to them, out of the 15 vacancies set apart for Assistant Guards/Senior Assistant Guards, 10 are unreserved vacancies. If that be so, the said 10 vacancies should have been filled up from among the 13 Assistant Guards, who cleared the promotion test. Instead they were given only five vacancies. The 6th person promoted was a reserved candidate. Feeling aggrieved by the said mode of promotion, after approaching the competent authorities, the respondents 1 to 5 herein filed the above O.A. The respondents resisted the application by filing a WPC.499/08 . 3 reply statement. The applicants filed a rejoinder. The official respondents filed an additional reply statement. Later, the applicants amended the original application. So, the official respondents filed another reply statement, which was followed by the rejoinder of the applicants. The matter was finally heard by the Tribunal and it issued the following directions regarding the preparation of the select list as per Ext.P12 order. “12. When volunteers are called and written examination is held, strictly speaking, the same should be separate for each category. For convenience sake, a single exam may be held. The following drill be performed in preparation of panel for promotion to the post of Goods Guards: Stage 1: Tabulation of names of those who have secured the minimum qualifying marks in the order of their integrated seniority (In this case, prepare mark list of 118 qualified candidates in the order of their integrated seniority list). Stage 2: Carve out from the above, a list of qualified candidates category wise in the order of their inter-se seniority for each category to the extent of the requisite number in each category. (e.g. up to 15 in the category of Sr. Asst. Goods Driver/Asst. Goods Driver (sic-guard); 7 in the category of Sr. Trains Clerk and Trains Clerk, 5 from the category of CMR etc., and 2 from the category of Sr.CC/Sr.TC/CC/TC. Rearrange the list on the basis of their inter-se integrated seniority. This is the first list. WPC.499/08 . 4 Stage 3.:After segregating this first list, from the tabulation the remaining list would form the second list. stage 4. From the first list, ascertain (a) shortfall if any in each category so that the same could be made good from other categories and also (b) representation of SC/ST. If adequate number of SC/ST candidates are available, and the percentage for each category is also met with, without any let out vacancies, then this first list itself would become the final list. If not, the second list comes into operation. From out of the second list, in the order of integrated seniority, pick up the requisite number of SC/ST candidates and in order to ensure that such candidates and the ones selected vide the first list do not exceed total number of vacancies apart from adjusting the category shortfall, the junior most in the first list to the extent required shall be eliminated. The above procedure may be explained through an illustration. In this case, there are 29 vacancies of Goods Guards with the break up of 19 unreserved candidates, 7 SC and 3 ST candidates. Again, 15 are earmarked for Asst.Goods Guards/Sr. Asst.Goods Guards, 7 TNCs, 5 CMRs etc., and 2 TC/CC etc., Suppose, the first list contains six reserved candidates (4 SC candidates and 2 ST candidates). Thus there would be a short fall of 3 SC and 1 ST candidate. Though the SC/ST candidates in the first list are those who have come up on their own merits, if these have availed of one or more of the concessions including concession in age limit, either at the time of initial recruitment or at any point of time later they cannot be considered as having been accommodated against unreserved vacancies and hence, they are also counted against reserved vacancies only. Again, assume that there is a shortfall of two candidates in one of the categories, WPC.499/08 . 5 say, 30% quota. This would mean that the first contains 27 candidates, (21 unreserved plus 6 reserved). Selection of candidates to make good the shortfall in reservation would be in the order of integrated seniority, irrespective of the category. For meeting the SC/ST reservation, if 4 are added, the total would rise to 27 plus 4 i.e.31. This would then warrant elimination of 2 from the list and the said 2 would be the junior most from the first list. (This may result in some minor imbalance in the category wise allocation but the same is inevitable, since the SC/ST Reservation takes precedence to the category-wise allocation). The list of such SC/ST candidates carved out from the Second list would from the Third List. Stage 5. Dovetail the first list (after elimination of the junior most as described in the preceding para) and third list and arrange the same on the basis of the integrated seniority. This forms the panel. 13. By the above procedure, all the requisite conditions (ratio in respect of each category, percentage of reservation and making good the short fall) would be completely fulfilled. This has not been followed”. 2. Attacking the above directions, this writ petition is filed. According to the learned standing counsel for the Railways, the candidates, who cleared the written test, have to be arranged according to their seniority and from that common seniority list, the candidates have to be appointed to all the vacancies without disturbing the common seniority. That is what was done WPC.499/08 . 6 by the Railways and the same is permissible in the light of Ext.P15. Special reference is made to Rule 320 of Ext.P15, which reads as follows: “320. RELATIVE SENIORITY OF THE EMPLOYEES IN AN INTERMEDIATE GRADE BELONGING TO DIFFERENT SENIORITY UNITS APPEARING FOR A SELECTION/NON-SELECTION POST IN HIGHER GRADE. When a post (selection as well as non- selection) is filled by considering staff of different seniority units, the total length of continuous service in the same or equivalent grade held by the employees shall be the determining factor for assigning inter-seniority irrespective of the date of confirmation of an employee with lesser length of continuous service as compared to another unconfirmed employee with longer length of continuous service. This is subject to the proviso that only non-fortuitous service should be taken into account for this purpose.” 3. When the vacancies in a post have to be filled up from different sources, first of all, the vacancies set apart for each category has to be filled up from that category based on seniority cum merit observing the Rules of reservation. Thereafter the candidates taken from different groups are to be pooled together and a common promotion order shall be WPC.499/08 . 7 passed. Of course, in that promotion order, candidates shall be arranged according to the seniority in the common seniority list, ignoring the category seniority. 4. We notice that this is what exactly the Tribunal has ordered to do. If the procedure followed by the Railways is upheld, the same will result in denying the legitimate vacancies available to different categories and some categories will get a share in excess of their quota. The same would run counter to the method of appointment prescribed as per the Rules. Therefore, we are of the view that what was directed to be done by the C.A.T is perfectly legal and valid. We find no ground to interfere with the same. In the result, the writ petition fails and it is dismissed. K. BALAKRISHNAN NAIR, JUDGE. P.N. RAVINDRAN, JUDGE. cl WPC.499/08 . 8 WPC.499/08 . 9