KERALA STATE ROAD TRANSPORT CORPORATION v. P. MURALI

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 21ST DAY OF MARCH 2013/30TH PHALGUNA 1934** **WA.No. 2040 of 2012 () IN RP.983/2012 ---------------------------------------** **AGAINST THE ORDER/JUDGMENT IN RP.983/2012 of HIGH COURT OF KERALA DATED 02-11-2012** **AGAINST THE ORDER/JUDGMENT IN WP(C).6150/2012 of HIGH COURT OF KERALA DATED 20-06-2012** **APPELLANT(S)/APPELLANT/1ST REVEIW PETITIONER/1ST RESPONDENT :** **-------------------------------------------------------------** **KERALA STATE ROAD TRANSPORT CORPORATION REPRESENTED BY ITS MANAGING DIRECTOR TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM PIN-695 023.** **BY ADV. SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC** **RESPONDENT(S)/RESPONDENT/PETITIONER :** **-------------------------------------** **P. MURALI RETIRED CONDUCTOR, GRADE II CHALATHUR VADAKKE NIKARTHU, KUTHIYATHODU P.O. ALAPPUZHA-688 533.** **BY ADV. SRI.S.MOHAMMED AL RAFI** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **MANJULA CHELLUR, C.J & K.VINOD CHANDRAN, J.** ## **----------------------------------------------** ## **W.A.No. 2040 of 2012** ## **----------------------------------------------** ## **Dated this the 21[st] day of March, 2013 JUDGMENT** ## **Manjula Chellur, C.J.** The Writ Appeal is directed against the judgment dated 20.6.2012 in W.P(C).No. 6150/2012 and also order dated 2.11.2012 in R.P.No.983 of 2012. The respondent herein was the writ petitioner before the learned Single Judge. He approached the learned Single Judge for the relief of counting the daily wage period for his pension in terms of clause XXIII(3) of Exhibit P3 Memorandum of Settlement dated 13.4.1999 executed between the appellant-Kerala State Road Transport Corporation (for short, 'the Corporation') and the recognised Trade Unions, daily waged Conductors, Drivers and Mechanical staff. The stand of the writ petitioner before the learned Single Judge was, the writ petitioner was included in the rank list published by the Kerala Public Service Commission (for short, 'the Commission') for reserve conductors in the Corporation in the year 1992. The writ petitioner was appointed as provisional conductor on daily wages selecting 2 _**WA.2040/12**_ him from the regular list as per memo dated 25.4.2000. Till November, 2007, he served the Corporation without any break and worked for more than fifteen days in every month. Along with 144 provisional Conductors recruited from the rank list, the service of petitioner was also regularised by the Corporation as per memorandum dated 9.11.2007 in the year 1999. 2. As stated above, an agreement came to be executed between the Corporation and the recognized Trade Unions on various topics, including the period that could be counted for the purpose of calculation of pension. Therefore, the writ petitioner is entitled to have daily wages period to be counted for pension. If the period of provisional service rendered by the petitioner is counted, he is entitled to get service pension and other retirement benefits, i.e., DCRG, computation of pension etc. Though a representation came to be submitted, the same was rejected by the second respondent District Transport Officer declaring that the writ petitioner is eligible to get only ex-gratia pension. Contending that Exhibit P3 agreement binds the parties, as the same was executed under the provisions of the Industrial Disputes Act, the writ petitioner placed reliance on _**District Transport Officer v. Kunchan**_ (2009(3) KLT 954(FB)), wherein 3 _**WA.2040/12**_ the Full Bench of this Court directed to count the service put in by the employees appointed from the rank list of the Commission considering the same as regular service, irrespective of the terms of appointment. 3. In all probability, the Corporation did not file any objection statement. However, the Corporation was represented by their Standing Counsel. The learned Single Judge, after referring to the decision reported in _**Kunchan's case (Supra)**_ , opined, the writ petitioner is also entitled for the benefit, as the appointment was given to the writ petitioner during the validity of the rank list prepared by the Commission. The learned Single Judge further opines, the said rank list prepared by the Commission entitles him to gain such benefit originating from the opinion of the Full Bench. This came to be challenged by the Corporation in Review Petition, contending that though the writ petitioner was included in the rank list published by the Commission so far as the post of Reserve Conductor in 1992, he was not advised by the Commission during the validity of the rank list for a period of three years with effect from the date of publication. The Corporation was in urgent need of reserve conductors and as it would require much more time to get the next rank list prepared _**WA.2040/12**_ 4 and published by the Commission to the post of reserve conductor, they decided to engage the unadvised candidates of the rank list as empanelled conductors during 2000 on condition that the services of those empanelled conductors would be terminated with effect from the date of joining of fresh recruits from the Commission, without further notice to them. 144 candidates, including the writ petitioner were appointed provisionally, but they continued for a period of seven years for want of sufficient candidates being advised by the Commission. It was decided by the Government to regularise their service as they continued in service for a period of seven years and as per order No.G.O(Ms)40/2007/Tran. dated 15.10.2007 the service of 144 candidates, including the writ petitioner was regularised. 4. Therefore, explaining as stated above, the Corporation contended, the claim of the writ petitioner cannot be entertained as he can only claim the status of an empanelled conductor, whose service was later regularised by the Government. Except the benefits of service that were extended to empanelled conductors, no other benefit is available to the writ petitioner as a candidate appointed on provisional basis not consequent to the advice effected by the Commission from a valid rank list. Neither in 1997 5 _**WA.2040/12**_ nor in 1999 the writ petitioner was not in regular service of the Corporation and he was even engaged as empanelled or provisional employee, therefore, none of the benefits under Exhibit P3 settlement are extended to him. According to them, the principle laid down in the Full Bench decision referred supra is not at all applicable to him, as there was no advice by the Commission so far as the petitioner at any point of time. However, the learned Single Judge dismissed the Review Petition also. Raising the same contentions as raised in the Review Petition, this Writ Appeal is filed. 5. The entire issue revolves round the fact whether the writ petitioner was entitled to the benefits sought, i.e., counting his daily wages period for computation of pension as sought by him based on the ground that he was given appointment as empanelled/provisional reserve conductor from the rank list prepared by the Commission. It is not in dispute that the Commission prepared a rank list and published it way back in 1992. The validity of the rank list being three years with effect from the date of publication is also not in dispute. It is also not in dispute that he was not advised by the Commission during the validity of the rank list. Only when vacancies are reported, 6 _**WA.2040/12**_ question of giving any advice by the Commission would arise. It is not the case of the petitioner that vacancies were there which came to be reported to the Commission and in pursuance of the same, advice for appointment of the petitioner was sent to the Corporation. According to the Corporation, during the period of validity of the rank list, the Commission did not advice the name of the writ petitioner, therefore, no appointment of any nature came to be extended to the writ petitioner. However, as there was urgent need of reserve conductors and because of time consuming process of next rank list to be prepared and published to the post of reserve conductor, unadvised candidates from the rank list published in the year 1992 came to be taken as empanelled conductors, is the contention of the Corporation. The appointment of empanelled conductors is also on condition that the service of those empanelled conductors would end with effect from the date of joining of fresh recruitees from the Commission and no further notice of any nature would be given to the empanelled reserve conductors. Not only the writ petitioner, but total 144 candidates from the expired rank list came to be appointed provisionally and served for seven years and only in the year 2007, as there was no further advice by the Commission, 7 _**WA.2040/12**_ their services came to be regularised as per Government order dated 15.10.2007. 6. The writ petitioner places reliance on _**Kunchan's case**_ (Supra) in entirety. In the said case, several issues came up for consideration and overruled _**Idiculla v. KSRTC**_ [(2005(3) KLT SN 67 (C.No.79)]. It pertains to appointment to the post of Driver in the Corporation. The selection process was adopted by the Commission which consisted of written test and interview. Though the said test and interview were taken up in 1984 and 1986, the appointment was delayed till 1989. In the meanwhile, the Commission had prepared a rank list as per Exhibit P4 dated 22.4.1989 and he was issued with an advice as a reserve conductor to be appointed in the Corporation with certain time scale as well, as per appointment order dated 30.5.1989. The Corporation, appointed the writ petitioner as reserve driver on a daily wages to be calculated at the rate of Rs.126/- at a minimum in the scale of pay for the lowest grade driver and not on a time scale of pay to a cadre post. So far as commencement of the work of the writ petitioner in pursuance of Exhibit P5 was not in dispute and it is also not disputed before the Court that subsequently by order dated 7.6.1990, the writ petitioner and others were _**WA.2040/12**_ 8 absorbed as Driver Grade-II with effect from 21.3.1990. He continued till 31.10.1999 and retired thereafter. After his retirement he continued in service as an empanelled driver. The controversy was with regard to the period during which he rendered his service in pursuance of the order dated 30.5.1989 on daily wages till he was appointed with effect from 21.3.1990. 7. The service rendered by the writ petitioner for the above said period as a daily wages employee was refused to be taken into account by the Corporation, but the stand of the employee was that only after the advice to the said post by the Commission, he was taken as daily wages employee and subsequently absorbed in the said post, therefore, he is entitled to have the service rendered by him between 30.5.1989 and 21.3.1990. Several other issues were considered. But, we are not concerned with that. We are only concerned with the decision whether daily rated service followed by regular employment of such person should be considered for computation of pension. In other words, are they eligible to treat such service as regular service for counting the period for the benefit of pension? A Full Bench of this Court opined, once the selected person is advised by the Commission and the Corporation appoints him, irrespective of the _**WA.2040/12**_ 9 status in the order of appointment, the appointment of such person in the existing regular vacancy is bound to be treated as a regular appointment. It is not open to the Corporation to treat the said service rendered by such employee calling it a daily wage period. In this context, they also went into the issue what would be the situation of an employee, who is appointed as a daily rated worker or casual worker prior to the advice by the Commission. The question that arose before Their Lordships was whether any kind of daily rated service followed by regular appointment of a person would entitle him to get the benefit of such period as part of the regular service? Ultimately, the Full Bench opined that any kind of daily rated service followed by regular appointment of such person would not make him eligible to treat such prior service as regular service. Only if an advice was given to existing vacancy to a person and still the Corporation appoints him as a daily rated employee, then such service could be treated as a regular service. The claim of the writ petitioner came to be allowed as the writ petitioner was appointed as a daily rated employee, but it was in pursuance of an advice given by the Commission to the Corporation to fill up the vacancy advising to appoint the reserve driver to the existing vacancy. They termed 10 _**WA.2040/12**_ this as 'unfair labour practice' within the meaning of Section 25T of the Industrial Disputes Act opining that such unfair labour practice on the part of the Corporation would tantamount to an offence under Section 25U of the Industrial Disputes Act. 8. Now one has to see whether similar situation exists in the appeal before us. The writ petitioner, no doubt, was one of the members of the rank list published as early as 1992. The maximum period of rank list expired prior to the date he was taken as a provisional conductor in the year 2000. The gap is about eight years. It is not just the writ petitioner, but all 144 candidates from the reserve list, who did not get advice from the Commission, were taken on provisional basis, as there was need for such conductors. In between, there was no selection process for the preparation of rank list of reserve conductors. After waiting for almost eight years, they decided to take 144 persons as provisional conductors. Though the Corporation says, they are empanelled conductors, the order of appointment issued in 2000 describes it as a provisional appointment, however, subject to termination without any notice, once regular recruitees get appointed. That situation never dawned upon 144 candidates and with the persuasion of the Corporation, the Government did feel it _**WA.2040/12**_ 11 reasonable to regularise their service also. In the absence of appointing the writ petitioner to an existing vacancy as a reserve conductor in pursuance of an advice by the Commission especially when the rank list of the Commission itself was not valid as it had expired, if one questions oneself whether it would be justifiable to claim the benefit extended to the writ petitioners in the Full Bench judgment to the writ petitioner on hand, definitely, the answer will be in negative. The writ petitioner was never advised to an existing vacancy. The rank list had already expired. Much later and almost eight years from the date of preparation of rank list such provisional appointment came into existence. 9. Then coming to the agreement at Exhibit P3 between the Corporation and recognised trade unions, drivers, conductors and other mechanical staff, as on the date of said agreement in the year 1999 with effect from 1997 the writ petitioner was not even empanelled as a provisional conductor. Therefore, the benefits flowing out of the agreement would never come to the rescue of the writ petitioner. 10. The learned Single Judge, totally ignoring the existence of altogether different facts, went in error in allowing the Writ 12 _**WA.2040/12**_ Petition and dismissing the Review Petition. Accordingly, we are of the opinion, for the reasons mentioned above, the Writ Appeal deserves to be allowed. Accordingly, the Writ Appeal is allowed setting aside the judgment in the Writ Petition and order in the Review Petition. **MANJULA CHELLUR, CHIEF JUSTICE** **K.VINOD CHANDRAN, JUDGE** **vgs**