Aralam Grama Panchayat represented by its Secretary v. Raju Joseph and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS & THE HONOURABLE MR.JUSTICE VIJU ABRAHAM FRIDAY, THE 28[TH] DAY OF JANUARY 2022 / 8TH MAGHA, 1943 OP(KAT) NO. 334 OF 2021 AGAINST THE ORDER IN OA (EKM)NO.221/2021 OF KERALA ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH ## PETITIONER/4TH RESPONDENT: ARALAM GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, PAYAM P.O.EDOOR, KANNUR, PIN-670 704 BY ADVS. JOHN K.GEORGE M.B.SHYNI RAJESH KUMAR R. V.R.ANILKUMAR PAREETH LUTHUFIN K.B. RAMEES P.K. ERFANA PARAMBADAN ## RESPONDENTS/APPLICANT AND R1 TO R3: 1 RAJU JOSEPH, AGED 46 YEARS, S/O JOSEPH, DRIVER ON DAILY WAGES, ARALAAM GRAMA PANCHAYAT, PAYAM , EDOOR,KANNUR DISTRICT, PIN-670 704, RESIDING AT ALUMPARAMBIL, EDAPUZHA P.O.PAYAM (VIA), KANNUR DISTRICT, KERALA, PIN-670704 2 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695039. 3 THE DIRECTOR OF PANCHAYATHS, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM, PIN-695033. 4 THE DEPUTY DIRECTOR OF PANCHAYATHS COLLECTORATE, CIVIL STATION, KANNUR DISTRICT, PIN-670 002. *ADDITIONAL THE TRANSPORT COMMISSIONER, GOVERNMENT OF KERALA, R5 THIRUVANANTHAPURAM OP(KAT) No.334 of 2021 2 > *ADDITIONAL THE REGIONAL TRANSPORT OFFICER (RTO), R6 MOTOR VEHICLES DEPARTMENT, KANNUR ADDITIONAL R5 & R6 ARE SUO MOTU IMPLEADED AS PER ORDER DATED 28/1/22 IN OP(KAT) 334/2021 BY ADV SHRI.P.C.SASIDHARAN, SC, KPSC R2 TO R6 BY ADV.SRI.ANTONY MUKKATH, SR.GOVT.PLEADER THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 28.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT) No.334 of 2021 3 ## **ALEXANDER THOMAS & VIJU ABRAHAM, JJ.** ## **................................................................. O.P.(KAT) No.334 of 2021** _[Arising out of the impugned order dated 27.10.2021 in O.A.(EKM) No.221 of 2021 on the file of the KAT, EKM Bench]_ **.................................................................** Dated this the 28[th] day of January, 2022 ## **JUDGMENT** ## **Alexander Thomas, J.** The 1[st] respondent herein has filed the instant Ext.P1 Original Application, O.A.(EKM) No.221 of 2021 before the Kerala Administrative Tribunal, Ernakulam Bench with the following prayers: - _“i) issue an order setting aside Annexure A6 notification and all subsequent steps taken by the 4[th] respondent to appoint a new driver on daily wages;_ - ii) _issue an order declaring that the applicant who is appointed on daily wages cannot be replaced by another daily wage driver;_ - iii) _issue an order directing the 4[th] respondent to forward a proposal to the 2[nd] and 3[rd] respondents to regularise the service of the applicant from the date of his initial engagement;_ - iv) _issue such other appropriate order or direction as this Hon'ble Tribunal may deem fit and proper to issue in the facts and circumstances of the case; and_ - v) _to grant the costs of this application.”_ 2. The Tribunal, after hearing both sides, has rendered the impugned Ext.P4 final order dated 27.10.2021 in the instant O.A. (EKM) No.221 of 2021 & 3 other connected O.As., wherein it has been held that the plea for regularisation of service of the applicants, who are temporary drivers in the service of the local bodies concerned, OP(KAT) No.334 of 2021 4 cannot be acceded to and that the applicants have been engaged as drivers on daily wage basis and not against any sanctioned posts of drivers. Further, the Tribunal has ordered that since the process of appointment of temporary drivers in the local bodies on daily wage basis or otherwise is a recurring phenomenon, it is necessary to frame objective and transparent guidelines to ensure that complaints about the selection process are avoided, etc. and certain guidelines have been stipulated in Ext.P4 verdict. 3. R4 in the above O.A., viz., the Aralam Grama Panchayat, has filed the instant Original Petition under Articles 226 & 227 of the Constitution of India with the following prayers: _“i) Set aside Exhibit P4 final order in O.A.(EKM) No.221/2021 of Kerala Administrative Tribunal, Ernakulam._ ii) _To permit the petitioner to proceed with the selection process of temporary driver._ iii) _To declare that the 1[st] respondent is not entitled to continue as temporary driver on daily wages under the petitioner . And_ iv) _to such other order that may deem fit and circumstances of this case.”_ 4. Heard Sri.John K.George, learned counsel appearing for the petitioner in the O.P./R4 in the O.A. and Sri. Antony Mukkath, learned Senior Government Pleader appearing for official respondents 2 to 6 in this O.P. Though notice has been duly served on R1 in this O.P.(original applicant), there is no appearance for that party. As per the order passed by us on 03.12.2021, we had requested the learned OP(KAT) No.334 of 2021 5 Standing Counsel for the Kerala Public Service Commission to file a statement in the matter and to assist this Court. Accordingly, we have also heard Sri. P.C.Sasidharan, learned Standing Counsel appearing for the Kerala Public Service Commission. 5. The case set up by the original applicant is to the effect that he has been engaged as a daily waged driver in the service of the Aralam Grama Panchayat, Kannur District (R4 in the O.A.). That he has been in service in that capacity from May 2011 onwards and that the interest of justice would demand that his service may be regularized, more particularly in the light of the stand taken by the respondent State of Kerala as per Annexure-A7 G.O.(Ms) No.155/2020/LSGD dated 15.10.2020. 6. After hearing both sides, the Tribunal has found that going by the admitted pleadings, the original applicant has been engaged not as against the sanctioned post of driver in the Aralam Grama Panchayat, but only on account of the felt necessities that he has been engaged temporarily on a daily wage basis. Further that the benefit of regularization conceded by the Government in terms of Annexure-A7 G.O. dated 15.10.2020 cannot be made applicable in the case of the original applicant in as much as his service does not come within the cut off period mentioned therein. Further it has also been held that going by the dictum laid down by the Apex Court in various decisions, OP(KAT) No.334 of 2021 6 the plea for regularization of the applicant, as per the directions of the court, may not be maintainable. The original applicant has not chosen to challenge the abovesaid verdict of the Tribunal and though he has been duly served in this O.P., he has not entered appearance. 7. R4 in the O.A. (Aralam Grama Panchayat) has challenged the abovesaid verdict of the Tribunal to the extent it has ordered that until another temporary driver is selected and appointed by the said Panchayat, the temporary service of the original applicant as driver may be continued. The Tribunal has found that though the applicants have been working not as against the sanctioned post in the local bodies concerned, there appears to be a recurring need for engagement of the drivers in most of the local bodies and that very often the local bodies resort to temporary engagement of drivers on short term basis, daily wage basis, contract basis, etc. The Tribunal has also felt that many a time complaints have been made against the modalities of selection process especially in the matters of favouritism, overlooking of merit, etc. Hence the Tribunal has found that guidelines and norms should be stipulated by the Director of Panchayats to ensure that the process of selection of temporary drivers in local bodies is done on the basis of transparent and objective criteria in order to avoid unnecessary complaints about the selection process. The Tribunal in para 15 on page 15 of Ext.P4 verdict has ordered that the respondent Grama OP(KAT) No.334 of 2021 7 Panchayats will ensure that such guidelines are strictly followed and that while issuing the guidelines following aspects will have to be taken into account. Para Nos.15 and 16 of Ext.P4 verdict of the Tribunal read as follows: - _“15. In the light of these facts it is only proper that the guidelines are framed for appointment of Drivers and other daily wages employees in the Grama Panchayats by the Director of Panchayats. The Director of Panchayats will ensure that such guidelines are strictly followed. While issuing the guidelines, the following aspects shall be considered:_ _(i) Minimum qualifications. (ii) Age limit (iii) The manner of publication of notification inviting applications for the post._ _(iv) The method of selection, which in case of Drivers, should also include assessment of proficiency in driving._ _(v) The marks in the interview should be such that it does not influence the overall selection process. (vi) The constitution of the Selection Board (vii) Minimum tenure of appointment (viii) Re-notification after the minimum tenure (ix) The procedure to be followed for disengagement of the appointees before completion of the minimum tenure, if so required. (x) Eligibility of existing Drivers to apply for re-appointment (xi) Prescription of time limit to finalise the entire selection process._ 16. _The Director of Panchayats, the second respondent in O.A. (Ekm) Nos.221, 976 and 1074 of 2021 and the first respondent in O.A.(Ekm) No.134 of 2021, will ensure that such guidelines are framed within a period of two months from the date of receipt of a certified copy of this order. The second respondent, while issuing the guidelines, will ensure that such selection process is initiated in those Grama Panchayats where the daily wages Drivers have completed the minimum tenure. The second respondent, while framing the guidelines, will also consider the question of continuance in service of those employees, who have been continuing over a period of ten years. The applicants also will be permitted to participate in the selection process. The interim orders in these Original Applications will continue to be in force till such time as the guidelines are framed and the selection process initiated in accordance with the same is finalized.”_ 8. The complaint raised by Sri.John K.George, learned Standing Counsel for the Aralam Grama Panchayat appearing for the petitioner in the O.P. is that the engagement of a temporary driver in a OP(KAT) No.334 of 2021 8 local body is a short term affair and insisting for such strict norms may not be necessary and at any rate the direction given by the Tribunal to ensure that the service of the present original applicant is to be continued till the abovesaid process of selection is culminated after framing of the scheme, etc. is causing unnecessary hardships and difficulties to the petitioner Panchayat and that liberty may be granted to the petitioner Panchayat to terminate the service of the original applicant and to engage a qualified and suitable driver on temporary basis, if it is so necessary. 9. After hearing both sides, we are of the view that the Tribunal cannot be in any manner seriously faulted for having opined that since the process of appointment of temporary drivers in local bodies may be a recurring phenomenon, it is necessary to have objective and transparent norms. On many occasions, complaints are made by candidates who do not get selection that the selection process has not been transparent and that the members of the committee of the local body concerned have not followed a transparent norm for merit in selecting a suitable driver, etc. Hence, the need for transparent norms even in the engagement of temporary drivers in local bodies cannot be diluted. 10. Apart from that Sri.John K.George, learned counsel appearing for the petitioner would point out that the aspects relating OP(KAT) No.334 of 2021 9 to minimum tenure of appointment, the procedure to be followed for disengagement of the appointees, etc. would create unnecessary complications and that many a time the local bodies engaged temporary drivers only on daily wage basis and that too for short term period and to fix a minimum tenure, may create unnecessary hardships and difficulties for the local body concerned and those are all matters which should be left to the full discretion of the local body, which is a unit of the Local Self Government. Further, learned counsel for the petitioner would point out that the specific direction issued in para No.16 of Ext.P4 verdict of the Tribunal that R2 in the O.A. (Director of Panchayats) while framing the guidelines will also consider the question of continuance in service of those employees who have been continuing over a period of ten years, etc. will be creating unnecessary and avoidable legal complications, etc. 11. The learned Senior Government Pleader also would concur with the abovesaid submissions of the counsel for the petitioner, especially to the extent directions have been made by the Tribunal for minimum tenure of appointment, procedure to be followed for disengagement, for consideration of employees who have been continuing in service for more than ten years, etc. 12. It is in the light of the above aspects that we had earlier directed as per an order passed on 03.12.2021 that the learned Senior OP(KAT) No.334 of 2021 10 Government Pleader may get positive instructions from the Motor Vehicles Department as to the norms being followed for assessment of proficiency of drivers by conducting driving skill test in the selection of drivers in Government Departments made through the PSC process. So also, we had requested the learned Standing Counsel for the Kerala Public Service Commission to apprise this Court as to the details of the norms being followed in the conduct of skill test for selection of drivers in Government Departments through the selection process of PSC. 13. The learned Standing Counsel for the Kerala Public Service Commission has filed a statement dated 07.01.2022 in this O.P. Para No.2 of the said statement reads as follows: - _“2. Only those who pass H-Test are eligible to participate in the Road Test and this has been specifically insisted in the notification for selection. Short listed candidates were called for practical test. Before the H Test, a verification process is there to examine identity, driving licence, driving licence particulars, etc. and only eligible candidates will be permitted to participate in the practical test, because candidates shall possess a current driving licence throughout all the stages of selection process. After the practical test, One Time Verification to those who have passed Practical Test (H Test + Road Test) will be conducted in order to verify original documents of eligibility other than driving proficiency and eligible candidates will be included in the ranked list.”_ Para No.4 in the said statement would disclose that the Selection Board for drivers' practical test has to appraise or evaluate 12 items relating to driving skill of candidates on the road test and record the details in the driving skill appraisal form and Annexure-A1 is the true copy of the skill appraisal form in that regard. 12 items mentioned therein are as follows: OP(KAT) No.334 of 2021 11 - _“1) Preliminary check up and starting the vehicle. 2) Driving Operation steering steadiness and control. 3) Driving Operation-Gear Control._ - _4) Driving Operation Judgment of distance and speed._ - _5) Driving Operation-Anticipatory actions and response to other vehicles and persons._ - _6) Driving Operation-Keeping to the proper side of the road. 7) Driving Operation-Observance of the traffic rules and response to the road signals._ - _8) Stopping the vehicle-Brake control. 9) Stopping the vehicle-application of clutch and gear. 10) Stopping the vehicle-Parking the vehicle. 11) Proper behaviour in emergency breaking. 12) Overall confidence.”_ Further para 5 of the said statement would disclose that appropriate grades are awarded to the candidates for the above items at the time of road test and the Chairman of the Board is appointed by the PSC for such selection process after considering the opinion of the Board member, ie., the Motor Vehicle Inspector, who is an expert in the field and so as to evaluate each item in the road test and assessment of driving skill of the candidate is recorded separately, etc. against the heads _“poor”, “average(-)”, “average(+)”, “good”, “excellent,”_ etc. Further it is stated in para No.6 of the said statement that as per Annexure-A2 circular No.2/2014 no candidate shall be eligible to be included in the short list prepared on the basis of the practical test, viz., “ _H_ ” test and driving test unless he or she has not obtained “ _average(+)_ ” and above for steering steadiness. Further that candidates who have secured “ _average(+)_ ” and above for items 3 to 11 of the driving skill appraisal form only will be included in the rank list and that this Court in the decision in _**Bineesh P. & Ors. v. Kerala**_ OP(KAT) No.334 of 2021 12 _**Public Service Commission [2014 (4) KLT 921]**_ has upheld the authority of the Commission in assessing driving skills of candidates by carrying out road test and assessing the same by an Expert Selection Board, etc. The driving skill appraisal form, as contained in Annexure-A1 of the statement, reads as follows: ## _**DRIVING SKILL APPRAISAL FORM**_ _[Note:-Columns 3 to 7 and 10 are to be completed by the Board Chairman in consultation with the Board Members immediately after the Driving Test. Columns 8 and 9 are to be completed by the office of the Commission]_ _Name of Post: Driver (HDV) Driver(LDV)..................... Department_ _Register No. of Candidate.................................._ |**_Sl._**<br>**_No._**|**_Factors_**|**_Poor_**|**_Average_**|**_Average_**|**_Good_**|**_Excellent_**|**_Rated_**<br>**_Score_**|**_Final_**<br>**_Score_**|**_Re-_**<br>**_marks_**| |---|---|---|---|---|---|---|---|---|---| ||||**_(-)_**|**_(+)_**|||||| |_(1)_|_(2)_|_(3)_|_(4)_|_(5)_|_(6)_|_(7)_|_(8)_|_(9)_|_(10)_| |_1_|_Preliminary check up and starting the_<br>_vehicle_||||||||| |_2_|_Driving operation: Steering steadiness_<br>_and control_||||||||| |_3_|_Driving operation: Gear control_||||||||| |_4_|_Driving operation: Judgement of_<br>_distance and speed_||||||||| |_5_|_Driving operation: Anticipatory actions_<br>_and response to other vehicles and_<br>_persons_||||||||| |_6_|_Driving operation: Keeping to the_<br>_proper side of the road_||||||||| |_7_|_Driving operation: Observance of traffic_<br>_rules and response to the road signals_||||||||| |_8_|_Stopping the vehicle: Brake control_||||||||| |_9_|_Stopping the vehicle: Application of_<br>_Clutch and Gear_||||||||| |_10_|_Stopping the vehicle:Parking the vehicle_||||||||| |_11_|_Proper behaviour in emergency braking_||||||||| |_12_|_Overall confidence_||||||||| |||||||_Total Score_|||| The instructions to the Board, given on the second page of Annexure- OP(KAT) No.334 of 2021 13 ## A1, read as follows: ## _**“INSTRUCTIONS TO THE BOARD**_ 1. _Please record your assessment of the driving skill of the candidate immediately after the driving test is over. Record your assessment by a tick (√) mark inside/any one of the columns 3 to 7. Do not change your assessment once you have already made a record of the same i.e., cancellation of a recorded (√) mark is not permitted._ 2. _Do not record your assessment in the presence of the candidate._ 3. _Writ your name, address, date and time of the test.”_ 13. Accordingly, after hearing all the parties concerned, we are of the view that the main objective in the selection process of temporary drivers in local bodies, be it on a short term basis, be it on daily wage basis, contract basis, for a fixed period of six months or so, etc. shall be to ensure that skilled and suitable drivers are engaged after proper assessment and also to ensure that complaints against the selection process are avoided. We have suggested to the respondent State Authorities and to the petitioner Panchayath that pending framing of a scheme by the respondent Director of Panchayats, the Selection Committee in the local body for engagement of temporary drivers may consist of the President of the local body concerned as the Chairman of the Selection Committee, the Motor Vehicle Inspector of the area concerned shall be the Expert Member and the Secretary of the local body could be the Convener & the Secretary of the said Selection Committee. Both the petitioner Panchayat and the OP(KAT) No.334 of 2021 14 respondent State Authorities have no serious objection in the said course of action proposed by this Court. Moreover, we feel that in view of the present Covid-19 Pandemic issues there may be delay on the part of the Director of Panchayats to frame a scheme and to order that the present temporary drivers should continue until the fresh process of selection is over after framing of the scheme, may cause unnecessary hardships and difficulties to the local bodies, like the present petitioner panchayat. However, we make it clear that the skill test for assessing the proficiency of drivers shall be done exclusively by the Motor Vehicle Inspector of the area concerned. As and when there is a need for selection of a temporary driver, the Secretary of the local body, after getting orders of the President/Chairperson of the local body, may request the Motor Vehicle Inspector of the area concerned, to conduct the skill test and thereupon the Motor Vehicle Inspector will ensure that the skill test is conducted. If, for any unfortunate reason, it is not possible for the Motor Vehicle Inspector to directly conduct the skill test, then he will be at liberty to nominate an officer, not below the rank of the Assistant Motor Vehicle Inspector, to conduct the said test. The abovesaid skill test shall be done strictly on the basis of the norms mentioned at Annexure-A1 to the statement dated 07.01.2022 filed by the Kerala Public Service Commission in this case. The predominant factor in the selection of OP(KAT) No.334 of 2021 15 temporary drivers should be on the basis of the performance in the skill test. The Selection Committee may also conduct an interview if it is so found desirable, but the marks in the interview shall not exceed 15% of the total marks in the skill test. The local body may also ensure that the character and antecedents of the selectee may be ascertained from the Police authorities, more particularly the local Station House Officer, etc., if it is found so necessary. However, we make it clear that the specific directions issued by the Tribunal that norms should be made for minimum tenure of appointment, the procedure to be followed after disengagement of appointees, etc. are not necessary and the same will stand set aside. So also, the direction issued in para No.16 of Ext.P4 verdict that the Director of Panchayats, while framing the guidelines, will consider the question of continuance in service of those employees, who have been continuing over a period of ten years, also will stand set aside. The respondent Director of Panchayats will bestow his attention on various aspects of the matter and may frame an appropriate scheme taking note of the observations and findings made by this Court hereinabove. Such a scheme may be framed by the Director of Panchayats without much delay, preferably within a period of four months from the date of receipt of a copy of this judgment. However, the local bodies, including the petitioner Panchayat, need not wait till the framing of the scheme for finalization of the next selection OP(KAT) No.334 of 2021 16 process for engagement of a new temporary driver. The petitioner Panchayat will be at liberty to make necessary requests to the Motor Vehicle Inspector of the area concerned to conduct the skill test and after inviting applications in that regard, the skill test may be conducted by the Motor Vehicle Inspector. The Selection Committee, as above, will also be at liberty to conduct an appropriate interview, wherein the marks of the interview shall not exceed 15% of the total marks for skill test, etc. Based on those aspects, it will be open to the petitioner Panchayat to effectuate the selection and appointment of a new temporary driver. Until then, the original applicant’s service as temporary driver may be continued by the petitioner Panchayat. The directions and orders of the Tribunal as per Ext.P4 will stand modified and substituted as above. With these observations and directions, the above original petition will stand finally disposed of. Sd/- ## **ALEXANDER THOMAS, JUDGE** Sd/- ## **VIJU ABRAHAM, JUDGE** cks OP(KAT) No.334 of 2021 17 ## **APPENDIX OF OP(KAT) 334/2021** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|TRUE COPY OF THE ORIGINAL APPLICATION| ||WITH ANNEXURES 1 TO 7| |ANNEXURE A1|TRUE COPY OF THE NOTIFICATION FOR THE| ||POST DRIVE ON DAILY WAGS PUBLISHED BY THE| ||4TH RESPONDENT IN MATHRUBHUMI DAILY DATED| ||13.1.2011| |ANNEXURE A2|TRUE COPY OF THE APPLICATION DATED| ||22.1.2011 SUBMITTED BY THE APPLICANT TO| ||THE 4TH RESPONDENT| |ANNEXURE A3|TRUE COPY OF THE LETTER NO A1-894/06| ||DATED 28.1.2011 SENT BY THE 4TH| ||RESPONDENT TO APPLICANT AND OTHERS| |ANNEXURE A4|TRUE COPY OF THE ORDER NO A1-894/06 DATED| ||19.5.2011 ISSUED BY THE 4TH RESPONDENT| |ANENXURE A5|TRUE COPY OF THE EXTRACT OF THE MEETING| ||NOTICE NO 3/2021 DATED 26.1.2021 OF THE| ||4TH PANCHAYAT| |ANENXURE A6|TRUE COPY OF THE NOTIFICATION FOR THE| ||POST OF DRIVER ON DAILY WAGES PUBLISHED| ||BY THE 4TH RESPONDENT IN MTHRUBHUMI DAILY| ||DATED 31.1.2021| |ANNEXURE A7|TRUE COPY OF THE GO(MS) NO 155/2020 /LSGD| ||DATED 15.10.2020 ISSUED BY THE 1ST| ||RESPONDENT| |Exhibit P2|A TRUE COPY OF THE REPLY AFFIDAVIT WITH| ||ANNEXURE R4(A)| |ANNEXURE R4(A)|A TRUE COPY OF THE AGREEMENT EXECUTED BY| ||THE APPLICANT DATED 22.5.2011 ALONG WITH| ||TYPED COPY| |Exhibit P3|A TRUE COPY OF THE REJOINDER FILED BY THE| ||APPLICANT TO THE REPLY STATEMENT FILED BY| ||THE 4TH RESPONDENT| |Exhibit P4|A TRUE COPY OF THE ORDER DATED 27.10.2021| ||IN OA (EKM) NO 221/2021|