G. Shyama Prasad and others v. Kerala State Road Transport Corporation and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE B.P.RAY** ## **MONDAY, THE 13TH DAY OF AUGUST 2012/22ND SRAVANA 1934** ## **WP(C).No. 4969 of 2007 (N)** **--------------------------** ## **PETITIONER(S):** - **----------------------------** **1. G.SHYAMA PRASAD, MECHANIC (SPECIAL GRADE), KSRTC, NEYYATTINKARA, THIRUVANANTHAPURAM.** **2. B.SURENDRAN, MECHANIC (SPECIAL GRADE), KSRTC, VIZHINJAM, THIRUVANANTHAPURAM.** **3. K.C.VIJAYAN, MECHANIC (SPECIAL GRADE), KSRTC, NEYYATTINKARA, THIRUVANANTHAPURAM.** **4. S.RAJASEKHARAN NAIR, MECHANIC** - **(SPECIAL GRADE), KSRTC CITY, THIRUVANANTHAPURAM.** **5. G.SIVASANKARAN NAIR, MECHANIC (SPECIAL GRADE), KSRTC, NEYYATTINKARA, THIRUVANANTHAPURAM.** **BY ADVS.SRI.ELVIN PETER P.J.** **SRI.S.RAMESH** **SRI.T.NAVEEN SRI.C.X.ANTONY BENEDICT SMT.POOJA SURENDRAN SRI.PRADEEP KRISHNA** ## **RESPONDENT(S):** ## **------------------------------** **1. KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR.** **2. THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, THIRUVANANTHAPURAM.** **3. M.P.ABRAHAM, CHARGEMAN, KSRTC, REGIONAL WORKSHOP, ALUVA.** **4. P.T.JACOB, CHARGEMAN, KSRTC,** - **DEPOT, PAYYANNUR.** **2/-** **sts** **-2-** **WP(C)NO.4969/2007** **5. K.V.ANTONY, CHARGEMAN, KSRTC, DEPOT, CHALAKKUDY.** **6. T.UNNIKRISHNAN, CHARGEMAN, KSRTC, DEPOT, PAYYANNUR.** **7. S.MURALEEDHARAN NAIR, CHARGEMAN, KSRTC, DEPOT, ATTINGAL.** **8. G.SUKUMARAN, CHARGEMAN, KSRTC,** - **DEPOT, TRIVANDRUM CENTRAL.** **9. S.JOY, CHARGEMAN, KSRTC, DEPOT, TRIVANDRUM CENTRAL.** ## ***ADDL.R10 AND R11 IMPLEADED** - ***R10: S.MOHAMMED ASHRAF,S/O.SHAHUL HAMMED MOULAVI,** - **AGED 48 YEARS, WORKING AS TYRE INSPECTOR SPECIAL GRADE,KSRTC,ATTINGAL DEPOT AND RESIDING AT MANUSHY** - **MANZIL VADAKKETHIL,VADAKUM BHAGAM, KAZHAKUTTAM,THIRUVANANTHAPURAM.** - ***ADDL.R10 IMPLEADED AS PER ORDER DATED 11/4/07 IN I.A.NO.5291/2007** - ****R11: G.MOHANAN,MECHANIC(SPECIAL GRADE), KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM CITY DEPOT.** - ****ADDL.R11 IMPLEADED AS PER ORDER DATED 23/1/09 IN I.A.NO.14771/2008** - **R1 & R2 BY ADV. SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC** - **SRI.V.V.NANDAGOPAL NAMBIAR,SC, KSRTC R3 TO R5 BY ADV. SRI.N.UNNIKRISHNAN** **R6 BY ADV. SRI.K.S.MADHUSOODANAN BY ADV. SRI.T.V.JAYAKUMAR NAMBOODIRI BY ADV. SRI.GOPAKUMAR R.THALIYAL BY ADV. SRI.N.P.PRAJEESH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.4969/2007** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE ORDER DATED 4/1/2007 ISSUED BY THE 1ST RESPONDENT.** - **P2 COPY OF THE JUDGMENT DATED 21/8/2006 IN O.P.NO.6265/2002 OF THIS HON'BLE COURT** - **P3 COPY OF THE JUDGMENT DATED 13/7/2005 IN W.A.NO.1167/2003 OF THIS HON'BLE COURT.** - **P4 COPY OF THE JUDGMENT DATED 12/3/2003 IN O.P.NO.14175/2002 OF THIS HON'BLE COURT.** - **P5 COPY OF THE JUDGMENT IN W.A.NOS.758 & 787/2002, REPORTED IN 2005(3) KLT 504.** - **P6 COPY OF THE GRADATION LIST OF WORK ASSISTANTS AND MECHANICS AS ON 1/1/2006 ISSUED AS PER ORDER DATED 17/5/2006 BY THE K.S.R.T.C.** - **P7 COPY OF THE JUDGMENT DATED 23/11/2005 IN WP(C)NO.24460/2005 ETC. OF THIS HON'BLE COURT.** ## **RESPONDENT'S EXHIBITS AND ANNEXURES:** - **R3(A) COPY OF THE JUDGMENT DATED 10/10/2000 IN O.P.NO.17411/00** - **R6(A) COPY OF THE JUDGMENT HON'BLE COURT IN WP(C)NO.33088/06** - **ANNEX 1 COPY OF THE COMMUNICATION DATED 9/11/2007 ISSUED BY THE PERSONNEL MANAGER,K.S.R.T.C** - **ANNEX II COPY OF THE REPRESENTATION DATED 17/12/2007 SUBMITTED BY THE PETITIONER.** **ANNEX III COPY OF THE ORDER DATED 31/12/2007 PASSED BY THE OFFICE OF THE 2ND RESPONDENT.** **ANNEX IV COPY OF THE ORDER DATED 31/1/2008 PASSED BY THE 2ND RESPONDENT.** ## **/TRUE COPY/** **P.A.TO.JUDGE** **sts** ## **B.P. RAY, J.** **- - - - - - - - - - - - - - - - - W.P.(C) No. 4969 of 2007** **- - - - - - - - - - - - - - - - Dated this the 13[th] day of August, 2012.** ## **JUDGMENT** Heard the learned counsel for the petitioners, the learned Standing counsel for KSRTC, Shri. Babu Joseph Kuruvathazha and Shri. N. Unnikrishnan for respondents 3 to 5. 2. The petitioners have filed this writ petition challenging the promotions granted to respondents 3 to 9 under Ext.P1 order. The petitioners 1 to 5 entered the service of Kerala State Road Transport Corporation as Work Assistants on 07.11.1978, 08.11.1978, 08.11.1978, 19.03.1979 and 21.03.1979 respectively. On completion of three years as Work Assistant, they were promoted as II Grade Mechanic and on completion of nine years and 15 years, they were promoted as 1[st] Grade Mechanic and Selection Grade Mechanic. The petitioners are now entitled to get promotion to the post of chargeman earlier than the respondents. Referring to Exts.P3 and P4 judgments, the 1[st] respondent has granted promotions to the party respondents as chargeman. Under clause 4 of Appendix XII-A, Part I KSR, a person who avails leave without allowance is not W.P.(C) No. 4969/2007 -:Page numbers:- entitled to get seniority and promotions in higher categories **during the period** they were out of service. It is also submitted that the respondents herein are not beneficiaries of Exts.P3 and P4 judgments which laid down the principle of seniority in different circumstances of the case. 3. Respondents 3, 4, 5 and 10 have filed a counter affidavit stating that they were given appointment on the advice of the PSC based upon effective date of advice. The learned counsel for the party respondents has drawn my attention to the chart given in paragraph 4 of the written submission which is quoted below for ready reference: - “4. For the sake of convenience a comparison of the entry in the - service of the petitioners vis-a-vis respondents 3, 4, 5 and 10 is given: |Petitioners<br>1stpetitioner<br>- 07.11.1978<br>2ndpetitioner<br>- 08.11.1978<br>3rdpetitioner<br>- 08.11.1978<br>4thpetitioner<br>- 19.03.1979”|Respondents<br>R3 – 13.12.1973<br>R4 - 07.06.1978<br>R5 - 09.06.1978| |---|---| 4. The question raised in this writ petition is whether the contesting respondents will lose their seniority so far as the promotion is concerned as Chargeman in terms of Rule 4 of W.P.(C) No. 4969/2007 -:Page numbers:- ## Appendix XII-A of KSR. It reads as follows: “Permanent Officer and non-permanent officers who have completed probation in their entry cadre in the regular service of Government may be granted leave without allowance under these rules. In such cases, for, and during the currency of the period of leave, the officers shall lose all service benefits such as the earning of leave including half pay leave, pension, gratuity, increment etc., and also promotion chances as may arise with reference to their seniority in the posts from which they proceeded on leave. They shall also lose seniority in the higher grade/grades with reference to their juniors who might get promoted to such grade/grades before they rejoin duty.” ## 5. I have gone through the judgment rendered by a learned Single Judge of this Court in W.P.(C) No. 38683 of 2003. The categoric findings of the learned Single Judge is as follows: “ The issue I notice is squarely covered by Exts.P4 and P5 judgments and the judgment of the Division Bench of this Court in W.A. Nos. 1167 of 2003 and 1179 of 2005. In fact the same issue was considered and decided by me in W.P.(C) No. 22714 of 2006. Order No.PL4/000625/2007 dated 12.02.2007 issued by the Managing Director of the K.S.R.T.C will show that the directions in the judgment of the Division Bench in W.A. Nos. 1167 of 2003 and 1179 of 2005 have been implemented by the Managing Director in so far as the same relates to the parties in those cases. This being the position, I am of the view that notwithstanding the contentions, the petitioner is entitled for relief. Respondents 2, 3 and 4 despite service of notice on them have not chosen to file any counter affidavit. Nevertheless, I am not inclined to grant the prayer for quashing Ext.P1 promotion order issued in favour of the 2[nd] respondent. It would suffice if the petitioner is also given promotion and assigned seniority above the 2[nd] respondent in the concerned list. Accordingly, it is declared that the petitioner is entitled to all the promotions in the light of Exts.P4 and P5 even prior to his juniors, respondents 2 to 4 and also for consequential benefits. In view of the above declaration, there will be a direction to the first respondent to W.P.(C) No. 4969/2007 -:Page numbers:- issue necessary orders granting all promotions to the petitioner in the light of Exts.P4 and P5 prior to 17.07.2001, the date on which the 2[nd] respondent was given promotion. Necessary orders for implementation of the above directions will be issued by the 1[st] respondent at his earliest and at any rate within six weeks of receiving a copy of this judgment.” 6. The contention that petitioners were granted time bound special grade promotion earlier to party respondents is of no avail as cadre promotion and grade promotion are different as distinguished in judgment dated 14.07.2009 in W.P.(C) No. 13718 of 2008 ( **Sony Jacob v. K.S.R.T.C & others** ) wherein it is held that “the non-conferment of a higher grade, in no manner, impairs seniority.”. I am inclined to follow the ratio of the above judgment of this Court which has become final. Thus, all the contentions taken by the petitioners fail In that view of the authoritative pronouncements, I decline to interfere with matter. Accordingly, this writ petition is dismissed. **sd/- B.P. RAY, JUDGE.** rv W.P.(C) No. 4969/2007 -:Page numbers:-