Recruitment Rules; M.K. Abdul Salam Vs. K. Yoonis Haji [Kerala High Court, 04-11-2016]

Lakshshadweep Administration (Public Works Department) Executive Engineer (Civil) Recruitment Rules, 1981 & 2004 –  filling up of the vacancy of Executive Engineer –

# Vacancy

IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.

W.P.(C)No.29157 OF 2009 & O.P.(CAT)Nos.2325 OF 2011 & 163 OF 2012

Dated this the 4th November , 2016

(AGAINST THE ORDER DATED 24.08.2009 IN O.A.No.285 OF 2008 OF THE CAT, ERNAKULAM BENCH)

PETITIONER/7TH RESPONDENT

M.K. ABDUL SALAM, EXECUTIVE ENGINEER (ADHOC),, LAKSHADWEEP PUBLIC WORKS DEPARTMENT,, AMINI

BY ADVS.SRI.M.R.RAJENDRAN NAIR (SR.) SRI.M.R.HARIRAJ SRI.P.A.KUMARAN SRI.SURAJ.S SMT.VINEETHA B. SRI.M.R.RAJENDRAN NAIR (SR.)

RESPONDENTS/APPLICANT & RESPONDENTS 1 TO 6

K. YOONIS HAJI, RETIRED ASSISTANT ENGINEER (CIVIL), PUBLIC WORKS DEPARTMENT,, AMINI ISLAND, UT OF LAKSHADWEEP, RESIDING AT GOVERNMENT QUARTERS, AMINI.

2. UNION OF INDIA, REP. BY THE SECRETARY TO GOVERNMENT OF INDIA,, MINISTRY OF URBAN DEVELOPMENT AND EMPLOYMENT, (DEPARTMENT OF URBAN DEVELOPMENT), NEW DELHI.

3. ADMINISTRATOR, LAKSHADWEEP ADMINISTRATION,, KAVARATHY ISLAND, UNION TERRITORY OF, LAKSHADWEEP.

4. SUPERINTENDING ENGINEER, LAKSHADWEEP PUBLIC WORKS DEPARTMENT,, KAVARATHY.

5. SECRETARY(WORKS), UT OF LAKSHADWEEP, KAVARATHY.

6. UNION PUBLIC SERVICE COMMISSION, NEW DELHI, REP. BY ITS SECRETARY.

7. ARUN JADEV, ASST. SURVEYOR OF WORKS, LAKSHADWEEP PUBLIC WORKS DEPARTMENT,, DIVISION OFFICE, KALPENI.

R1 BY ADV. SRI.M.V.THAMBAN R2 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R2 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA R2 BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA R3,4 & 5 BY ADV. SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMINISTRATION R6 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC UPSC R7 BY SRI.B.UNNIKRISHNA KAIMAL

JUDGMENT

P.R. Ramachandra Menon, J.

The first of the above three cases arises from the order passed by the CAT, Ernakulam in O.A.No.285 of 2008, whereas the other two cases have been filed challenging the order passed by the very same Tribunal in O.A.No.380 of 2008. The challenge involved in the former case is with regard to the filling up of the vacancy of Executive Engineer on ‘ad hoc basis’, while the issue involved in the other two cases is in respect of filling up of the vacancy in the post of Executive Engineer on a ‘regular’ basis. The petitioner in W.P(C)No.29157 of 2009 is the first respondent in the other two cases. Since the nature of grievance projected from the part of the applicants in the concerned O.As is almost similar and since the pleadings and proceedings are also closely interlinked, all these cases are dealt with together. W.P.(C) No.29157 of 2009 is to be dealt with in the first instance and the other two cases will be dealt with separately in the due course.

2. Altogether ‘three posts’ of Executive Engineer are available in the Lakshadweep Administration and there arose ‘two vacancies’ on 01.07.2002, pursuant to retirement of the incumbents concerned. As per Ext.P1

# Lakshshadweep Administration (Public Works Department) Executive Engineer (Civil) Recruitment Rules, 1981

the post of Executive Engineer is to be filled up by ‘Graduate’ Assistant Engineers having ‘8 years’ of service. The above rules came to be modified as per Ext.P2

# Lakshshadweep Administration (Public Works Department) Executive Engineer (Civil) Recruitment Rules, 2004

whereby, avenue for promotion of the ‘Diploma holders’ was also created and the promotion channel was streamlined both from Degree and Diploma holders in the ratio of 2:1, subject to the rider that, in the case of Diploma holders, the requisite extent of experience was to be for a period of ‘Ten’ years.

3. As mentioned already, despite the availability of two vacancies, which arose from 01.07.2002, only one qualified hand was available to be promoted to the post in question and accordingly, one of the said two vacancies was filled up by appointing qualified Graduates having ‘8 years’ of experience. The other vacancy remained unfilled. The petitioner in W.P.(C) No.29157 of 2009 having got appointment as Asst. Engineer on 08.07.1995, put up a claim that he had attained the qualifying service of ‘8 years’ on 08.07.2003 and that he was to be promoted to the post. In the case of the 7th respondent therein (who is the petitioner OP(CAT)No.2325 of 2011) he was appointed and joined service pursuant to the same selection, only on 25.01.1996 and as such, he completed ‘8 years’ of service only on 25.01.2004. But the fact remains that, by virtue of the better merit , the 7th respondent was placed as ‘Rank No.1’ in the Select List prepared by the UPSC. But the Lakshadweep Administration admittedly committed a mistake and sent appointment order to the petitioner in W.P(C)No.29157 of 2009 alone on 30.06.1995, who in turn joined the service on 08.07.1995 as aforesaid. On realising the mistake, appointment order was issued to the 7th respondent as well, pursuant to which he joined the service on 25.01.1996. As there was no fault on the part of the 7th respondent, seniority in the cadre of Asst. Engineer was fixed by the Administration, giving a placement to him over and above the petitioner in W.P.(C)No.29157 of 2009 .

4. In the meanwhile, several litigations were preferred at different points of time, by the petitioners in W.P.(C)No.29157 of 2009, O.P.(CAT)No.2325 of 2011 and the first respondent in W.P. (C)No.29157 of 2009, raising a claim to be appointed to the post of Executive Engineer. According to the first respondent in W.P. (C)No.29157 of 2009, he was the seniormost person among all, having joined the service way back in the year 1995, but he was denied promotion, as he was only a ‘Diploma holder’. It is pointed out that, the necessity to amend the recruitment rules was felt by the Administration and accordingly, the draft amended rules were introduced in the year 1998, which however came to be finalised only in the year 2004, as evidenced by Ext.P2. Since the rules came to be amended in the year 2004, it was contended that the available vacancy was to be filled up by a Diploma hand, as only ‘three posts’ were available, out of which two were already occupied by Degree holders; thus to give effect to the ratio of 2:1, as provided in Ext.P2 rules. It was accordingly, that the first respondent in W.P.(C)No.29157 of 2009 filed O.A. No.689 of 2006 before the CAT, Ernakulam. After hearing both the sides, the said O.A. was allowed by the Tribunal as per Ext.P4 order, holding that the current vacancy shall be filled up by a ‘Diploma holder’; giving such other directions.

5. The said verdict was sought to be challenged by the petitioner in W.P.(C)No.29157 of 2009 by fling W.P.(C)No.23816 of 2007 before this Court, mainly contending that Ext.P2 rules (whereby the path was cut open to have an entry to a Diploma holder) were introduced for the first time only in the year 2004; and that the vacancy in question having had arisen much earlier i.e., on 01.07.2002, the said vacancy ought not to have been filled up as per the amended rules. It was accordingly contended that the applicant in the O.A.No.689 of 2006 was not entitled to have the reliefs ordered by the Tribunal as per Ext.P4. The said version was accepted by this Court and the writ petition was allowed, whereby the verdict passed by the Tribunal (Ext.P4) was set aside and O.A.No.689 of 2006 was dismissed. The claim for appointment to the post in question was directed to be considered in the light of Ext.P1 Rules. It was however made clear in Ext.P5 judgment passed by this Court that the said judgment will not affect the claim of the first respondent therein (who is the first respondent in W.P.(C)No.29157 of 2009 as well), for the vacancy that may arise after the introduction of the new Recruitment Rules (Ext.P2), as admittedly there was dearth of Diploma holders in the cadre of Executive Engineer.

6. In the course of further proceedings, the first respondent by name K.Yoonis Haji approached the Tribunal challenging the ad hoc promotion given to the sixth respondent (Arun Jadav) in O.A.No.285 of 2008 (who is the seventh respondent in W.P(C) No.29157 of 2009 and petitioner in OP.(CAT)No.2325 of 2011), mainly contending that the vacancy concerned therein was resulted only because of the displacement of one Mr. S. Attakoya, who was holding the post of Executive Engineer in the Circle Office at Kavaratti; which was quite after commencement of Ext.P2 amended rules. By virtue of the specific observation/direction in Ext.P5 judgment passed by this Court in W.P.(C)No.23816 of 2007, the right of the said applicant to get promoted as Executive Engineer in the next arising vacancy, after the commencement of Ext.P2 amended rules, had already been crystallised and as such, the vacancy could have been and should have been filled up only by accommodating the applicant. It was accordingly, that the said O.A.No.285 of 2008 was filed with the following prayers:

i) Call for the records leading upto Annexure-A11 and quash Annexure -A10 and A11, by which the 6th respondent is promoted as Executive Engineer in preference to the Applicant.

(ii) to declare that the 6th respondent is not entitled to be considered for promotion against the 3rd vacancy which arose after notification of the Recruitment Rules in view of the ratio prescribed therein.

(iii) to direct the respondent to consider the applicant for promotion as Executive Engineer (Civil) against the post now occupied by the 6th respondent with retrospective effect from the date of Annexure -A10 and with all consequential benefits including seniority, arrears of salary etc. iv) to award cost of this proceedings to the applicant.

(v) to pass such other orders that this Hon’ Tribunal may deem fit and proper in the facts and circumstances of this case.”

7. In this context, it is relevant to note that, after passing Ext.P5 verdict by this Court, the sixth respondent in the said writ petition (person by name Arun Jadav) had filed Review Petition No.1157 of 2007 before this Court pointing out that he was senior to the writ petitioner and that his claim was also to be considered along with the claim of the writ petitioner. The Review Petition was disposed of, entertaining the contention of the Review Petitioner and giving a direction to constitute a Review DPC and to finalise the proceedings accordingly, as per Ext.P7 order dated 25.01.2008.

8. The challenge raised by the applicant in O.A.No.285 of 2008 was sought to be resisted from the part of the party respondent as well as the Lakshadweep Administration. It was contended by the Lakshadweep Administration that, by virtue of the merit and better seniority of the seventh respondent /Arun Jadhav (who was the sixth respondent in the O.A.No.285 of 2008), the promotion given to him was not liable to be disturbed in any manner and if at all any reconsideration was necessary, it could only be with effect to the promotion and posting given to the seventh respondent in the said O.A. (who is the petitioner in W.P.(C)No.29157 of 2009).

9. The seventh respondent therein/M.K. Abdul Salam (petitioner in W.P.(C)No.29157 of 2009) contended that, in so far as the sixth respondent/Arun Jadhav was concerned, it was a vacancy which arose prior to the ‘revised recruitment rules’ and as such, the applicant was not entitled to be considered for the said post. In respect of the post held by the 7th respondent/Abdul Salam, the position was stated as similar; adding that the said vacancy had also arisen prior to Ext.P2 amended Recruitment Rules. It was simultaneously contended that, even if it was presumed that the vacancy held by the 7th respondent/Abdul Salam had arisen after 03.03.2004, i.e. after Ext.P2 amended rules, then again, the vacancies had to be rotated between the Degree holders and Diploma holders, in the ratio of 2:1, from that stage and hence the said vacancy ought to have been filled up by a Degree holder in terms of the ratio, irrespective of whether the other post had already been filled up by a particular category (Degree holder) in tune with the ‘old rules’. Reliance was also sought to be placed on the decision rendered by the Apex Court in

# All India Federation of Central Excise v. Union of India and others, (1999) 3 SCC 384

which however was sought to be distinguished by the applicant; pointing out that the said case was dealing with two different sources of recruitment, i.e., ‘Direct Recruitment’ on one hand and ‘Promotion’ on the other hand; whereas in the instant case, there was only one source of recruitment, i.e., by ‘Promotion’, though two different channels, i.e., from Degree holders and from Diploma holders based on the ratio fixed, were available.

10. After hearing both the sides, the Tribunal found that the vacancy which arose after the recruitment rules were amended as per Ext.P2, was to be filled up by accommodating a ‘Degree holder’ so as to be in conformity with the declaration already given by this Court as per Ext.P5 judgment . It was accordingly that the O.A. was allowed; the operative portion of which as contained in paragraph 11 reads as follows:

11. In view of the above, the O.A. is allowed. It is declared that the applicant has to be considered for promotion to the post of Executive Engineer against that vacancy which arose for the first time after the introduction of the revised Recruitment Rules in March, 2004. Respondents are directed to consider the other diploma holders, if any, along with the applicant and in case the applicant is selected, he be deemed to have been promoted from the date of occurrence of vacancy but on notional basis, and annual increment on notional basis be also afforded till the date of superannuation of the applicant and terminal benefits calculated on the basis of the pay so arrived at. Arrears arising out of the same should be paid to the applicant. If for accounting purposes, the respondents have to create a supernumerary post to accommodate the applicant, the same be also considered. Time calendared for this purpose is six months.”

11. There is a contention for the petitioner in W.P.(C) No.29157 of 2009 that, no vested right has been conferred upon the applicant in O.A.No.285 of 2008, by Ext.P5 judgment passed by this Court and that, what has been stated is only with regard to the consideration of the claim of the said applicant for the ‘first vacancy’ that may arise after the introduction of the ‘new rules’. This Court finds it difficult to accept the said proposition. The verdict passed earlier by the Tribunal in favour of the applicant in O.A.No.689 of 2006, who was the same applicant as in O.A.No. 285 of 2008, came to be intercepted by this Court as per Ext.P5 judgment, holding that the vacancy concerned therein was prior to the amendment of the recruitment rules and as such, it could have been considered only as per the unamended recruitment rules (Ext.P1). It was after taking note of the rival contentions and the change in circumstances by virtue of Ext.P2 amended rules, that a clear declaration was made in Ext.P5 verdict itself holding that the said judgment will not bar the claim of the applicant in O.A.No.689 of 2006 for the first vacancy that may arise after the introduction of new recruitment rules, simultaneously observing that, it was more so, since admittedly, there was dearth of Diploma holders in the cadre of Executive Engineer. The said declaration has not been challenged by anybody so far and it has become final. It was accordingly, that the relief was moulded by the Tribunal, giving effect to the said declaration, while finalising O.A.No.285 of 2008, giving appropriate directions as contained in Ext.P10 order. We do not find anything illegal, improper or irregular to call for interference. Accordingly, interference is declined in W.P.(C)No.29157 of 2009, holding that it is devoid of any merit.

12. Coming to the issue involved in the remaining two cases, it is in respect of the filling up of the post of Executive Engineer on a ‘regular basis’. After the different litigations pursued by the party concerned at different points of time, the petitioner in W.P.(C)No.29157 of 2009 (Abdul Salam)filed O.A.No.380 of 2008 before the CAT, Ernakulam seeking to quash Annexure A1 order dated 05.07.2008, whereby the Administration promoted and appointed Mr. Arun Jadhav to the post of Executive Engineer (Civil) in the Lakshadweep Public Works Department with immediate effect . The main grounds of challenge raised in the said O.A. were that, the applicant Abdul Salam was senior to the person by name Arun Jadhav, having joined duty on 08.07.1995 and hence he was the first person to be considered, being a ‘Degree holder’ with the requisite extent of service. The other ground was that, the vacancy concerned was the ‘7th replacement vacancy’ to be filled up as per the Special Reservation roster/L-shaped roster (13 point roster); as per which, it was to be filled up by an SC candidate. Since there was no SC candidate, the vacancy ought to have been filled up by accommodating an ST candidate and the applicant Abdul Salam, being a member of ST, ought to have been appointed, instead of and in place of the person by name Arun Jadhav, who was appointed as per Annexure A1. The claim was contested by the contesting party respondents, as well as by the Lakshadweep Administration. It was asserted by the Administration, that the selection was conducted by the UPSC, and by virtue of the better merits and credentials, the person by name Arun Jadhav was placed at Rank No.1 in the select list, who ought to have been given the first offer of appointment. Admittedly, by an inadvertent mistake committed by the Administration, offer of appointment was given to Mr Abdul Salam on 30.06.1995, who accordingly had joined the service on 08.07.1995. On realising the mistake, it was corrected and offer of appointment was given to the person by name Arun Jadhav who joined duty accordingly on 25.01.1996. It was considering the actual facts and figures and also by virtue of the law declared by the Apex court on the point in

# R. Prabha Devi and others v. Government of India and others, 1988 SCC (L& S) 475 : AIR 1988 SC 902

and in

# Union of India vs. Smt. Sadhana Khanna, AIR 2008 SC 860

that the right of the person by name Arun Jadhav was considered with better seniority over the person by name Abdul Salam and the seniority was refixed accordingly. This being the position, it was contended that there was nothing wrong on the part of the Administration in having issued Annexure A1 order of appointment, in favour of the said person, which was not assailable under any circumstance.

13. With regard to the contention of the applicant that the vacancy was the ‘7th replacement vacancy’, which ought to have been filled up by a ‘SC candidate’; in turn to be made over to ST candidate (for want of SC candidate); thus giving appointment to the person by name Abdul Salam/applicant, it was pointed out in paragraph 9 of the reply statement that, the Administration was following the 13 Point Special reservation roster from the year 1997, which replaced the 100 point roster, which was being followed till such time. Originally, reservation was being effected following 40 point roster brought into force from 1975; which was got replaced by the ‘100 point roster’ introduced in the year 1985. 13 point roster ( when the number of posts available is quite lesser, ranging upto 13), was being followed and on applying the said roster, the ‘7th replacement vacancy ‘(which was the disputed vacancy)was to be given to an SC candidate. But it had to treated as de-reserved, because of appointment given to the ‘reserved sector’ in the earlier instance. It was also pointed out that, if the vacancy was to be filled up by an SC/ST candidate, it would result in excess reservation, more so since, filling up of different vacancies at different points of time was explained with reference to the names of persons, who were appointed at the earlier instances. Reference was also made to the Circular-O.M.No.36012/2/96-Estt dated 02.07.1997, wherein Note.3 clearly stipulated that the reserved slot was to be skipped over if it would otherwise result in excess reservation.

14. However, the Tribunal observed that, the claim of the applicant with reference to his better seniority, over the person by name ‘Arun Jadhav’, was not correct or sustainable; at the same time holding that the Administration had committed a mistake in not following the 13 point roster, but for following 100 point roster. It was accordingly held by the Tribunal, that the vacancy concerned was the ‘7th replacement vacancy’ and that the same could have been and should have been filled up only by an ST candidate(SC candidate being not available). It was accordingly, that consequential directions were given to the Administration, to re-work the position, as per the final order dated 16.05.2011 passed in the O.A., which made both the parties concerned ( Arun Jadhav as well as the Lakshadweep Administration) feel aggrieved, who have approached this Court by filing separate Original Petitions challenging the verdict passed by the Tribunal.

15. We have gone through the entire pleadings and proceedings and heard the learned counsel appearing for the parties on both sides; besides the learned Standing Counsel appearing for the Lakshadweep Administration. With regard to the first ground of challenge raised by the applicant with reference to his proclaimed seniority over ‘Arun Jadhav’, there is no dispute that both the persons were selected by the UPSC, pursuant to the same selection process and that, by virtue of higher credential/merit, the person by name ‘Arun Jadhav’ was ranked in the rank list as Rank No.1; whereas the applicant was ranked only below him, as Rank No.2. By virtue of the settled position of law, seniority has to be reckoned with reference to the position as given in the rank list. It was only by virtue of an inadvertent mistake committed by the Lakshadweep Administration, that the appointment order came to be issued to the applicant on an earlier date, enabling the applicant to join duty before issuance of appointment order to the person by name ‘Arun Jadhav’. The said mistake cannot confer any vested right upon the applicant . The right of a senior person under such circumstance has been highlighted by the Apex Court in the decision reported in

# Union of India vs. Smt. Sadhana Khanna, AIR 2008 SC 860

Even otherwise, as per the law declared by the Supreme Court in

# R. Prabha Devi and others vs. Government of India and others, 1988 SCC (L& S) 475 : AIR 1988 SC 902

where the juniors have completed the eligibility of requirement for promotion, then their seniors shall also be considered, even if they have not completed the eligibility period. The applicant could complete the requisite extent of ‘8 years’ of qualifying service as Asst. Executive Engineer on a prior date, only because of the mistake committed by the Administration, which in fact has been corrected by the Administration giving seniority to the person by name ‘Arum Jadhav’, over the applicant, by virtue of the higher rank and placement given by the UPSC in the selection process and rank list. As it stands so, the finding and observation made by the Tribunal in paragraph 7 of Ext.P1 verdict in O.A.No.380 of 2008, that the applicant cannot take seniority over the person by name ‘Arun Jadhav’ is correct and sustainable. This finding has not been caused to be challenged by the applicant by filing any original petition and hence it stands in tact.

16. The remaining question is only with regard to the further declaration made by the Tribunal that the vacancy being the 7th replacement vacancy, it could have been filled up only by accommodating a reserved category candidate in turn directing the concerned respondents to conduct a review DPC and also to have the inter se seniority fixed in the post of Executive Engineer. The reasoning given by the Tribunal to arrive at such a finding is that the Lakshadweep Administration had committed a mistake in not following the ’13 point Special reservation roster’, but for following the ‘100 point roster’. The said observation appears to be contrary to the specific pleadings raised by the Administration in their reply statement, particularly in paragraph 9; which is extracted below, for convenience of reference:

9. The 40 point Roster is not in existence. It has been replaced by 100 point post based roster. As per the register maintained for roster (40 point) out of the 6 vacancies filled, the 1st and 5th point are shown as utilized by ST and the 7th point is un-reserved. A true copy of the relevant portion of Roster is produced herewith and marked as Annexure R1(c). However, as per Govt. of India O.M.No.36012/2/96-Estt (Res) dated 2.7.97 issued as per the judgment of Honourable Supreme Court in R.K. Sabarwal v. State of Punjab and J.C. Malik vs. Ministry of Railways there shall be Post based Roster. There are only 3 posts of Executive Engineers (Civil) in LPWD. As per model roster for promotion for cadre strength upto 13, against cadre strength of 3 posts ( of EE) 3 initial recruitments and next 3 replacement recruitments are un-reserved,, 4th replacement is a reserved point for SC i.e. 7th promotion (Annexure A15). In O.M.No.36012/2/96-Estt (Res) dated 02.07.1997 regarding principles for making and operating post based rosters, under the side heading ‘Initial Operation’ it is stated that the actual representation of the different categories starting from the 1st appointee has to be marked in the roster and any excess representation has to be adjusted in future posting. The details of incumbents appointed by promotion on regular basis are detailed below:

Cycle & Point No. Un-reserved or reserved for Scs/STs according to the roster applicable Name of the person Date of appointment Remarks
1 SC A.M. Kasmikoya (ST) 15.07.1980 (adhoc) 16.05.86 (regular) Exchanged for ST
2 UR K. Hydrosskutty 29.08.1989
3 UR K. Pookoya (ST) 01/10/92
4 ST K.K. Othenan 22.05.1993 Single vacancy treated as UR since no qualified ST candidate available
5 UR S. Attakoya (ST) 01.05.1998 AN (ad hoc) 27.03.2001 (regular) Single vacancy treated as ST exchanged to 4
6 UR Kudege Mohammed (ST) 01/07/02

17. The Lakshadweep Administration, in OP (CAT)No.163 of 2012 filed by them, have also sought to substantiate the position by producing a Model Roster of 40 point issued by the Ministry of Home Affairs in 1975 as Ext.P5, a Model Roster of 100 points issued by the Ministry in 1986 as Ext.P6 and a true relevant extract of C&AG circular dated 23.01.1998 clarifying the doubts in respect of the maintenance of the revised 13 Point Special Reservation roster dated 02.07.1997 as per Ext.P7. The factual position as to filling up of vacancies at different points of time, applying the relevant roster has been given in paragraph 9 of the said Original Petition, which is reproduced below for immediate reference:

9. With the help of Exhibit P4 working roster and Exhibit P5 and P6 model rosters, it was submitted before the Tribunal that the 40 point roster was in existence from 29.04.1975 to 01.06.1985 and as per the model 40 point roster, the first post was reserved for Scheduled Caste. The 2nd and 3rd posts were unreserved. The 4th post was for Scheduled Tribe. The 5th, 6th & 7th posts were unreserved. The first promotion to the post of Executive Engineer was made on 15.07.1980 as per the 40 point roster. Due to non availability of SC candidate in Lakshadweep the post was filled by ST candidate (Sri A.M. Kasmikoya). By the time, the 2nd promotion came in 1989, the 100 point roster had come into existence. As per the 100 point post based roster, which came into existence on 01.06.1985, in Lakshadweep the 1st, 4th, 7th & 10th promotion posts were to be reserved for Scheduled Tribes as there was no Scheduled Caste candidates in Lakshadweep. Thus, as per the 100 point roster, in 1989 when the 2nd promotion was available, the promotion was to be given to an unreserved candidate. The same was given to Mr. K. Hydrosskutty who was neither ST nor SC. The 3rd promotion post was also to be granted to an unreserved candidate as per the 100 point roster. But it was filled in by an ST candidate (Mr. K. Pookoya) in 1992 due to unavailability of unreserved qualified candidate. In 1993, Mr. K.K. Othenan who was an unreserved candidate was selected and appointed against the 4th promotion post reserved for ST candidate (no qualified ST candidate was available).”

18. After referring to the change in scenario pursuant to adoption of ’13 point roster’ brought into existence in the year 1997 [Annexure R1 (C)], the initial operation is clarified as extracted below:

1. At the point of initial operation of the roster, it will be necessary to determine the actual representation of the incumbents belonging to different categories in the cadre vis-a-vis the points year earmarked for each category, viz., SC/ST/OBC & General in the roster. This may be done by plotting the appointments made against each point of roster starting with the earliest appointee. Thus, if the earlier appointee in the cadre happens to be a candidate belonging to the Scheduled Castes, against point No.1 of the roster, the remark “utilised by SC” shall be entered. If the next appointee is a general category candidate, the remark “utilised by general category” shall be made against Point No.2 and so on and so forth till all appointments are adjusted in the respective rosters. In making these adjustments S/ST/OBC candidates on merit in direct recruitment shall be treated as General category candidates.

2. After completing the adjustments as indicated above a tally should be made to determine the actual percentages of representation of appointees belonging to the different categories in the cadre. If there is an excess representation of any of the reserved categories or if the total representation of the reserved categories exceeds 50%, it shall be adjusted in the future recruitment. Vacancies arising from retirement etc., of candidates belonging to such categories shall be filled by appointment of candidates belonging to the categories to which the relevant roster points, against which the excesses occur, belong”

19. It has been pointed out by the Administration that on working out the above roster in 1998, the fifth un-reserved point was filled up by an ST candidate and subsequently in the year 2002, the sixth un-reserved vacancy was also filled up by an ST candidate. As such, as per the rules mentioned above, the earlier two points utilised by ST have to be adjusted with un-reserved candidates on their first availability, failing which it would result in 100 per cent reservation for ST candidates. It was accordingly, that the 7th point, now under consideration, was decided to be transferred to un-reserved quota and as such, the proceedings pursued by the Administration cannot be termed as bad in any manner.

20. After hearing both the sides, this Court finds that the interference made by the Tribunal as per the verdict passed in O.A.No.380 of 2008 declaring that the 7th replacement vacancy was to be filled up by a reserved candidate, in turn giving further directions for giving effect to the same and also leaving the interse seniority between the applicant and the other party respondents to be considered by the competent authority in the due course, are not correct or sustainable. Accordingly, the said declaration, observations and directions stand set aside and O.A.No. 380 of 2008 is dismissed as devoid of any merit.

21. For the same reasons discussed above, we find that O.P (CAT)No.163 of 2012 preferred by the Lakshadweep Administration and O.P(CAT)No.2325 of 2012 preferred by Mr. Arun Jadhav, challenging the verdict passed by the CAT, Ernakulam in O.A.No.380 of 2008 are to be allowed. It is ordered accordingly.

22. Fate of the petitioner in W.P.(C)No.29157 of 2009 has been discussed and declared already. We find no merit in the said writ petition and hence the said writ petition stands dismissed upholding the order passed by the CAT, Ernakulam in O.A.No. 285 of 2008. It is however brought to the notice of this Court that the petitioner in W.P.(C)No.29157 of 2009 was subsequently proceeded against by the Lakshadweep Administration/Department for certain serious misconducts and on finding him guilty in the domestic enquiry, the disciplinary authority dismissed him from the service. It is however stated that such dismissal is under challenge in the O.A. filed by the petitioner/employee and that the same is still pending. We however do not intend to express anything with regard to the merits of the said proceedings, as it is not forming part of the subject matter involved in the present case.

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