High Court of KeralaSingle Judge2021-07-07Petition dismissed; writ petition sans merit.

Jobish T.J and Others v. The Kerala State Road Transport Corporation and Others

Case / Petition Number:WP(C) NO. 23965 OF 2020

Neutral Citation:,

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Amit Rawal
Judgment Date: 2021-07-07
Court Decision / Holding: Writ petition dismissed; petition sans merit.
Final Disposition: Petition dismissed; writ petition sans merit.

Parties to the Case

Appellants / Petitioners

Jobish T.J
Akhil K Jose
Babu P.K
Shaji Mathew
Nikhil N.K
Riju A. Devasia
Ratheesh L
Prince Z
Mobin K. Baby
Bineesh A.P
Binumon B.R
Jestin Raj N.A
Rajan V.J
Binu A
Abilash H.S
BLIGHTY

Respondents

The Kerala State Road Transport Corporation Transport Bhavan, Thiruvananthapuram, PIN 695001 (represented by its Managing Director)
The Chairman and Managing Director, The Kerala State Road Transport Corporation, Transport Bhavan, Thiruvananthapuram, PIN 695001
The Kerala Public Service Commission, represented by its Secretary, Pattom, Thiruvananthapuram-695004

Legal Representation & Advocates

Counsels for Petitioners

• O. D. Sivadas

Counsels for Respondents

• Deepu Thankan
• P. C. Sasidharan (SC) for KPSC
• T. P. Sajan (SC) for KSRTC

Case Synopsis & Summary

This writ petition (WP(C) No. 23965 of 2020) was filed by 16 petitioners challenging Ext. P9 (dated 19.08.2020) where KSRTC rejected the request for appointment in service, despite their being advised for appointment by the Kerala Public Service Commission (KPSC) in a recruitment process for Work Assistants earmarked for the OX category. The background includes notification No. 119/08 and later No. 227/2014 by KPSC, the rank list of 29.03.2017, and an RTI-d sourced tally showing large vacancies in the cadre of Mechanics Grade II. Petitioners argue that Ext. P3 (18.08.2017) advice memo created a legitimate expectation of appointment, and that mere financial distress of KSRTC cannot bar appointments where posts exist and candidates have been advised. The judgment notes prior directions by this Court in related matters directing KSRTC to issue appointment orders, and an eventual Supreme Court intervention (Civil Appeal No. 3346/2019) which set aside those directions on grounds of skewed passenger ratios and fiscal crisis. The Court ultimately agrees that mere vacancies or empanelment do not create an indefeasible right to appointment, and that Ext. P9’s reasoning cannot be faulted in a judicial-review framework. The petition is held to lack merit and is dismissed.

Provisions of Law Cited

Article 226 of the Constitution of IndiaRight to Information Act, 2005

Legal Doctrines & Maxims

Mere existence of vacancies or empanelment does not create indefeasible right to appointment
Advice is equivalent to empanelment
Judicial review under Article 226 of the Constitution of India

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that Ext. P3 (dated 18.08.2017) accorded a recommendation/advice for appointment by the Kerala Public Service Commission, in pursuance of notifications that earmarked 21 OX vacancies and that a rank list issued on 29.03.2017 qualifies them for appointment. They submit that KSRTC’s financial crisis cannot wipe out the right arising from the Commission’s advice and that past directives by this Court to issue appointment orders, though later reversed by the Supreme Court, create a legitimate expectation that requires resolution in their favor. They emphasize that mere vacancies or empanelment do not extinguish their right to appointment and that ordering appointments would be within the KSRTC’s means and would not violate public funds if implemented with prudence; they seek a mandamus to issue appointment orders in line with Ext. P3.

Contentions of Respondents

The KSRTC contends that, despite vacancies, the corporation faces a severe and ongoing financial crisis, with monthly deficits around 100-110 crores and a bus-staff ratio aligned to national averages only after reductions. Directing appointments would strain finances further, risk non-payment of salaries, and set an impracticable precedent. The KSRTC also points to the Supreme Court’s reversal of earlier directions in Civil Appeal No. 3346/2019 as a reason not to speculate on enforceable rights from mere advisories. The Commission’s earlier advisories are acknowledged but, given fiscal constraints, KSRTC argues that hiring cannot proceed under the present conditions. The respondents urge dismissal of the petition, arguing no indefeasible right and that judicial review should not override fiscal realities.”},

Cited Precedents (9)

Case Name	Citation	Treatment	Explanation
Civil Appeal No. 3346 of 2019	Civil Appeal No. 3346/2019	Overruled	Supreme Court set aside the directions issued by this Court to appoint; the ratio relied on earlier orders is not binding in the present context.
KSRTC v. Akhilesh and Others	Not provided	Overruled	The Supreme Court’s decision in CA No. 3346/2019 overruled the directions that had been influenced by the KSRTC v. Akhilesh line of reasoning cited in Ext.P9.
Antony Stejo v. State of Kerala and Others	WA 2248/2018 and connected cases	Mentioned Only	Cited in Exhibits to illustrate prior orders; not expressly applied or distinguished in the present judgment.
SLP(Civil) No. 8395 of 2019	SLP(Civil) No. 8395/2019	Mentioned Only	Exhibit P10 references a Supreme Court judgment but its ratio is not discussed or applied in the present decision.
WA No. 2248 of 2018	WA No. 2248/2018	Mentioned Only	Cited as part of the appendix and context; no direct ruling applied.
WA No. 1152 of 2019	WA No. 1152/2019	Mentioned Only	Mentioned in the appendix; not relied upon for the decisive reasoning.
WP(C) No. 38007 of 2017	WP(C) No. 38007/2017	Mentioned Only	Cited in the appendix context; not bearing on the core ruling.
WP(C) No. 34224 of 2018	WP(C) No. 34224/2018	Mentioned Only	Cited as part of the corpus of related judgments; not the controlling authority for the decision.
Antony Stejo v. State of Kerala and Others	Exhibits P6–P7	Mentioned Only	Referred to in the Appendix; not essential to the operative decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL WEDNESDAY, THE 7[TH] DAY OF JULY 2021 / 16TH ASHADHA, 1943 WP(C) NO. 23965 OF 2020** ## **PETITIONER:** |1|JOBISH T.J| |---|---| ||THADATHIL HOUSE,VADEVATHOOR.P.O,| ||KALAETHIPADY, KOTTAYAM DISTRICT,| ||PIN-686 210.| |2|AKHIL.KJOSE,| ||KANIPARAMBIL HOIUSE, VARAPETTY.P.O,| ||KOTHAMANGALAM,ERNAKULAM DISTRICT,| ||PIN-686691.| |3|BABU.P.K,| ||PANAYAMTHENGIL HOUSE,CHELACOMPU.P.O,KARUKACHAL,| ||KOTTAYAM DISTRICT,PIN-686540.| |4|SHAJI MATHEW,| ||VERICKANELLICKAL HOUSE,CHEMPAKAPPARA.P.O,| ||CHEMPAKAPPARA,IDUKKI DISTRICT,| ||PIN-685514.| |5|NIKHIL.N.K,| ||VENGAVILAVEEDU,CHEPRA.P.O,| ||VILANGARA,PIN-691520.| |6|RIJU A.DEVASIA,| ||ARMACHERIYIL HOUSE,ELANJI.P.O,| ||ELANJI,ERNAKULAM DISTRICT,PIN-686665.| |7|RATHEESH.L,| ||THACHARUKONATHU PUTHUVEL PUTHENVEEDU,| ||ARASUPARAMBA,NEDUMANGAD.P.O,| ||THIRUVANANTHAPURAM DISTRICT,PIN-695541.| |8|PRINCE.Z,PARANGIMAM VILA VEEDU,| ||PULAMON.P.O, KOTTARAKKARA,| ||KOLLAM DISTRICT,PIN-691531.| |9|MOBIN.K.BABY,| ||KAKKANADE HOUSE, NATTAKAM.P.O,| ||KOTTAYAM DISTRICT, PIN-686013.| **WP(C) NO. 23965 OF 2020** **2** - 10 BINEESH.A.P, ADIYANAYIAL HOUSE,PAZHOOR.P.O, PIRAVAM,ERNAKULAM DISTRICT, PIN-686664. - 11 BINUMON.B.R BINU BHAVAN,KURUIYODU THEKKEKKARA, ELLUVILA.P.O, THIRUVANANTHAPURAM DISTRICT,PIN-695504. - 12 JESTIN RAJ.N.A, NHARAKKATTIL HOUSE, VAYALADA.P.O, UNNIKULAM, KOZHIKODE,PIN-673574. - 13 RAJAN.V.J, VILAKRIYAN HOUSE,ST.MARY COLONY, PARIYARAM.P.O, KANNUR DISTRICT, PIN-670602. - 14 BINU.A, CHEMMANNUVILA VEEDU, MARIYAPURAM, MARIYAPURAM.P.O, THIRUVANANTHAPURAM, PIN-695122. - 15 ABILASH.H.S, PAZHINJIKUZHI,PERUMPAZHUTHOOR.P.O, NEYYATTINKARA, THIRUVANANTHAPURAM, PIN-695126. - 16 BLIGHTY, VALIYA PARAMBIL HOUSE,CHOLLIYODE.P.O, MUZHIMALAM,SULTHAN BATHERY, WAYANAD DISTRICT,PIN-673592. BY ADV O.D.SIVADAS ## **RESPONDENTS:** - 1 THE KERALA STATE ROAD TRANSPORT CORPORATION TRANSPORT BHAVAN,THIRUVANANTHAPURAM,PIN695001,REPRESENTED BY ITS MANAGING DIRECTOR. - 2 THE CHAIRMAN AND MANAGING DIRECTOR, THE KERALA STATE ROAD TRANSPORT CORPORATION, **WP(C) NO. 23965 OF 2020** **3** TRANSPORT BHAVAN, THIRUVANANTHAPURAM, PIN-695001. 3 THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM-695004. BY ADV SRI.DEEPU THANKAN SRI P C SASIDHARAN SC KPSC , SRI T P SAJAN SC KSRTC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 23965 OF 2020** **4** ## **JUDGMENT** Petitioners 16 in number have approached this Court through the instant writ petition, seeking to quash Ext.P9 order dated 19.08.2020 whereby the 2[nd] respondent - the Chairman and Managing Director of the Kerala State Road Transport Corporation request for appointment in service, was rejected. 2. The Kerala Public Service Commission (hereinafter referred as 'Commission' for short) caused notification No.119/08 for selection to the post of Work Assistant in the Kerala State Road Transport Corporation (hereinafter referred as 'KSRTC' for short). In pursuance to the selection process rank list dated 31.12.2009 was published. After advising the candidates, there arose 21 vacancies of Work Assistants earmarked for OX community could not be advised due to non-availability of candidates. For the purpose of filling up the dearth of 21 OX candidates another notification No.227/2014 vide Ext.P1 was issued clearly mentioning that 21 vacancies were existing in KSRTC. 3. In pursuance to the above, petitioners submitted applications for selection, qualified in the selection process and **WP(C) NO. 23965 OF 2020** **5** included in rank list dated 29.03.2017 (Ext.P2). Vide Ext.P3 all the petitioners were issued advice memo by the Commission but for the reason best known no consequent appointment has been made by the KSRTC. 4. In order to ascertain the total number of vacancies of Work Assistants in various depots of KSRTC information was sought under RTI Act. As per the information there were 193 vacancies available in the cadre of Mechanics Grade II (Work Assistants) as evidenced from Ext.P4. Corporation continued to employ temporary hands despite availability of vacancies and issuance of advice memo. Against the inaction of KSRTC writ petition bearing W.P(C).38007/2017, was filed, where it was pointed out that a number of temporary hands were working in the cadre. This Court vide judgment dated 11.03.2019 disposed of the writ petition directing the KSRTC to take appropriate decision on the request made by the petitioners included in the rank list for appointment based on the advice made by the Kerala Pubic Service Commission within a period of one month. The aforementioned order was assailed before the Division Bench of this Court which was dismissed on 09.10.2020. As per the **WP(C) NO. 23965 OF 2020** **6** impugned decision Ext.P9 dated 19.08.2020 KSRTC rejected the case of the petitioners on the ground that Corporation is facing severe financial crisis for the past many years and had been running into deficit in income and expenditure was nearly to the tune of 100-110 crores per month. Commission had already submitted a report to the Government minimizing the expenditure by reducing the bus-staff ratio to the national average which was 8:7 against the national average of 5:5. Even the cadre strength of each category had been re-fixed despite that there is excess staff in each cadre. 5. Learned counsel appearing on behalf of the petitioners submitted that the judgment of the Single Bench which was affirmed by the Division Bench was taken to Supreme Court in Civil Appeal No.3346/2019 whereby the judgment was set aside on the ground that owing to the skewed bus passenger ratio and the financial crisis, appointments despite availability of posts could not be implored. However, the case in hand is different from the judgment of Supreme Court as in those cases employees were not even advised, whereas, as per Ext.P3 all the petitioners have been advised but no appointment orders have been issued. **WP(C) NO. 23965 OF 2020** **7** 6. On the other hand, learned counsel for the KSRTC opposed the writ petition by reiterating the findings rendered in the order Ext.P9 as Corporation is in the verge of almost closure owing to the huge financial crunch and despite reduction of the cadre strength there is still excess. It is arduous for the Corporation to sustain. 7. I have heard the learned counsel for the parties and appraised the paper book. The factum that this Court vide judgment referred to above had directed the KSRTC to issue appointment orders though the employees were not advised and Supreme Court, by the judgment referred above, set aside the directions though affirmed by the Division Bench of this Court, is not in dispute. The reasoning assigned in Ext.P9 also include the decision in _**KSRTC v. Akhilesh**_ _**and others**_ as Corporation is facing severe financial crisis. Even if this Court deems it appropriate to issue direction in the same manner as done earlier there would be again grievance for the petitioners of having not been paid the salary. Mere existence of vacancies or empanelment does not create any indefeasible right to appointment. Advice is also equivalent to empanelment. The **WP(C) NO. 23965 OF 2020** **8** reasoning assigned in Ext.P9 cannot be faulted with while exercising power of judicial review under Article 226 of Constitution of India form a different opinion apart from the above. Petition sans merit and accordingly dismissed. **Sd/-** **AMIT RAWAL JUDGE** nak **WP(C) NO. 23965 OF 2020** **9** ## **APPENDIX OF WP(C) 23965/2020** PETITIONER ANNEXURE |EXHIBIT P1|TRUE COPY OF THE NOTIFICATION VIDE| |---|---| ||CATEGORY NO.227/2014 ISSUED BY THE KERALA| ||PUBLIC SERVICE COMMISSION.| |EXHIBIT P2|TRUE COPY OF THE RANK LIST DATED| ||29.03.2017 PUBLISHED BY THE KERALA PUBLIC| ||SERVICE COMMISSION.| |EXHIBIT P3|TRUE COPY OF THE ADVICE MEMO DATED| ||18.08.2017 ISSUED BY THE KERALA PUBLIC| ||SERVICE COMMISSION TO THE 1ST PETITIONER.| |EXHIBIT P4|TRUE COPY OF THE ORDER DATED 18.09.2017| ||ISSUED UNDER THE RTI ACT BY THE APPELLATE| ||AUTHORITY,MANAGER(CUSTOMER| ||RELATIONS),KSRTC| |EXHIBIT P5|TRUE COPY OF THE INTERIM ORDER DATED| ||6.12.2018 IN WA NO.2248 OF 2018 RENDERED| ||BY THIS HON'BLE COURT.| |EXHIBIT P6|TRUE COPY OF THE JUDGMENT DATED| ||04.02.2019 IN WA NO.2248 OF 2018 AND| ||CONNECTED CASES RENDERED BY THIS HON'BLE| ||COURT.(ANTONY STEJO VS.STATE OF KERALA| ||AND OTHERS.).| |EXHIBIT P7|TRUE COPY OF THE JUDGMENT DATED| ||11.03.2019 IN WP(C)NO.38007 OF 2017| ||RENDERED BY THIS HON'BLE COURT.| |EXHIBIT P8|TRUE COPY OF THE JUDGMENT DATED| ||09.03.2020 IN WA.NO.1152 OF 2019 RENDERED| ||BY THIS HON'BLE COURT.| |EXHIBIT P9|TRUE COPY OF THE ORDER DATED 19.08.2020| ||ISSUED BY THE 2ND RESPONDENT.| **WP(C) NO. 23965 OF 2020** **10** EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 1.04.2019 SLP(CIVIL)NO.8395 OF 2019 RENDERED BY THE HON'BLE SUPREME COURT. EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 28.10.2019 IN WP(C)N0.34224 OF 2018 RENDERED BY THIS HONBLE COURT.