K.P. Saju and others v. Kerala State Road Transport Corporation and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **THURSDAY, THE 22ND DAY OF NOVEMBER 2012/1ST AGRAHAYANA 1934** **WP(C).No. 14191 of 2011 (Y) ---------------------------** **PETITIONER(S):** - **-------------** **1. K.P.SAJU, AGED 48 YEARS, THOTTATHIKUDIYIL HOUSE, KINGINIMATTOM P.O., KOLENCHERY-682 311.** **2. P.R.MOHANAN, AGED 51 YEARS, S/O.RAJAN, PUTHENPURACKAL HOUSE, VELIYANAD P.O. ARAKKUNNAM-682 319.** **3. M.V.UNNIKRISHNAN, AGED 44 YEARS, S/O.VELAPPAN NAIR, AYYANATTU HOUSE, KUMBALAM P.O., KOCHI-682 506.** **4. K.A.MOHANDAS, AGED 45 YEARS, S/O.K.K.AYYAPPAN, KAVAMCHERY HOUSE, ALATTUCHIRA P.O., PERUMBAVOOR-683 544.** **BY ADV. SRI.SAJEEV KUMAR K.GOPAL** - **RESPONDENT(S): --------------** **1. THE KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR,** - **TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM-695023.** **2. THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM-695 023.** **3. SAJU.K.G., STATION MASTER, KERALA STATE ROAD TRANSPORT CORPORATION, VIZHINJAM DEPOT, THIRUVANANTHAPURAM-695 521.** **4. RAVEENDRAN.K.M., STATION MASTER, KERALA STATE ROAD TRANSPORT CORPORATION, KASARAGODE-571 121. 5. VINOD.K.S., STATION MASTER, KERALA STATE ROAD TRANSPORT CORPORATION, KOTTAYAM-686 001.** **CONT...** ## **WP(C).No. 14191 of 2011 (Y)** ## *** ADDL.R6 IMPLEADED** ## **ADDL. R6- B.ANILKUMAR,S/O S.BHASKARAN** **NAIR,AGED 43 YEARS,STATION MASTER.KSRTC NEYYATTINKARA AND RESIDING AT LAKSHMI VILASOM VALANJAMURI,NEYYATINKARA P.O. THIRUVANANTHAPURAM DISTRICT.** - **(ADDL.R6 IMPLEADED VIDE ORDER DATED** **19.08.2011 IN I.A 12980/11)** **R1-R2 BY ADV. SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR,SC, KSRTC ADDL-R6 BY ADV. SRI.N.UNNIKRISHNAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AS** ## **WP(C).No. 14191 of 2011 (Y)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXT.P1:**|**COPY OF THE GOVERNMENT ORDER VIDE G.O.(MS)**| |---|---| ||**NO.05/2011/TRANS/DTD.28/1/2011.**| |**EXT.P2:**|**COPY OF THE MEMORANDUM VIDE NO.PL 10/000371/2011**| ||**DTD.25/4/2011.**| |**EXT.P3:**|**COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER**| ||**BEFORE THE 2ND RESPONDENT.**| |**EXT.P4:**|**COPY OF THE MEMORANDUM NO.PL 12/00275/06 DTD.28/4/2011**| ||**ISSUED BY THE 2ND RESPONDENT.**| |**EXT.P5:**|**COPY OF THE MEMORANDUM NO.PL12(PLA4)22511/03 DTD.6/1/2006**| ||**ISSUED BY THE CHAIRMAN AND MANAGING DIRECTOR.**| |**EXT.P6:**|**COPY OF THE ORDER NO.PL12/00275/06 DATED 3/7/2006 ISSUED BY**| ||**THE CHAIRMAN AND MANAGING DIRECTOR.**| |**EXT.P7:**|**COPY OF THE ORDER NO.PL14/007251/07 DATED 26/5/2007 ISSUED**| ||**BY THE CHAIRMAN AND MANAGING DIRECTOR.**| |**EXT.P8:**|**COPY OF THE COMMUNICATION DATED 21/4/2008 FROM THE CHAIRMAN**| ||**AND MANAGING DIRECTOR OF THE CORPORATION TO THE GOVERNMENT.**| |**EXT.P9:**|**COPY OF THE COMMUNICATION NO.4337/A3/2008/TRAN DATED**| ||**6/10/2008 FROM THE GOVERNMENT VIDES.**| |**EXT.P10:**|**COPY OF THE COMMUNICATION NO.PL12/00275/06 DATED 17/10/2008**| ||**ISSUED BY THE CHAIRMAN AND MANAGING DIRECTOR TO THE**| ||**ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT.**| |**EXT.P11:**|**COPY OF THE COMMUNICATION NO.PL-12/00275/06 DATED 7/2/2009**| ||**FROM THE MANAGING DIRECTOR.**| |**EXT.P12:**|**COPY OF THE CONSOLIDATE NOTE NO.4337/A3/08/TRAN OF THE**| ||**TRANSPORT DEPARTMENT.**| |**EXT.P13:**|**COPY OF THE ADVICE MEMO OF THE PUBLIC SERVICE COMMISSION**| ||**DATED 13/1/1993 OF THE 1ST PETITIONER.**| **CONT....** ## **WP(C).No. 14191 of 2011 (Y)** ## **RESPONDENT'S EXHIBITS:** **EXT.R6(A): COPY OF JUDGMENT DATED 2/7/2012 IN WPC.NO.25121/2006 AND CONNECTED CASES. EXT.R6(B): COPY OF MEMORANDUM NO.PLA4-60594/91 DATED 28/10/1992. EXT.R6(C): COPY OF APPOINTMENT ORDER NO.PLA4-51837/96 DATED 21/8/1996.** **/TRUE COPY/** ## **P.A.TO JUDGE** **AS** C.K.ABDUL REHIM,J. ------------------------------WP(C).NO. 14191 of 2011 --------------------------------Dated this the 22nd day of November, 2012 ## JUDGMENT The petitioners were candidates included in the rank list prepared by the Kerala Public Service Commission (PSC), published on 18.5.1992, for appointment as conductors in the 1[st] respondent Corporation. Initially they were appointed as empanelled conductors, provisionally on the basis of advice made by PSC. Ext.P13 is the advice issued with respect to the 1[st] petitioner. It was clarified therein that, entitlement to regular appointment as Reserve Conductors will be only as and when regular vacancies arises in the 1[st] respondent Corporation. Subsequently, this court had disposed of a batch of writ petitions filed by candidates included in the rank list, through the decision in **KPSC Reserve Conductors Association and others vs. State (1996 (2) KLT 306),** wherein the 1[st] respondent was directed to report all substantive vacancies to PSC and to make appointment of the persons advised, by sending out all the adhoc appointees, viz. provisional employees and empanelled WP(C). 14191 /2011 2 employees. Accordingly, PSC had issued regular advice in the case of the petitioners, on 20.4.96. Under the above mentioned circumstances, the petitioners have got empanelled service prior to their regularisation from the year 1993 onwards. The 1[st] petitioner joined as empanelled conductor on 18.3.93 . The 2[nd] petitioner joined on 5.3.93, and petitioners 3 and 4 joined on 10.3.1993. All of them were regularised in the service with effect from 20.4.96. 2. The petitioners were representing for regularisation in service with effect from the date of their initial advice, and the 1[st] respondent had recommended the regularisation for approval of the Government. In Ext.P1 order, sanction was accorded by the Government for regularisation of the service of 67 conductors appointed between the period from 18.3.93 to 19.4.1996. It was clarified that the regularisation is made with effect from the date of joining in KSRTC either as daily wage conductor or as empanelled conductor. But it was made clear that such regularisation will be notional till the date of regular appointment based on PSC advice issued in the year 1996 and that those WP(C). 14191 /2011 3 persons will not be eligible for any monetary benefits retrospectively. 3. But while giving effect to Ext.P1 order the 1[st] respondent Corporation incorporated a rider in Ext.P4 Memorandum to the effect that, the inter-se rank and seniority of those persons included in Ext.P1 order will continue and will be subject to decision in various writ petitions pending before this court. Such a restriction was imposed stating that, in Ext.P1 Government Order there is no mention that the first advice issued by the PSC during the year 1993 should be considered as regular advice. In this writ petition the petitioners are seeking to quash Ext.P4 to the extent it ordered that inter-se seniority of the petitioners will continue as such. Inter alia, the petitioners are seeking direction to reckon the empanelled service for the purpose of seniority in the category of conductors and to place the petitioners in appropriate position in the gradation list and further to consider them for promotion on the basis of such seniority. 4. Contention of the petitioners is mainly based on the WP(C). 14191 /2011 4 sequence of events led to Ext.P1 order. Ext.P8 is the letter issued by the 1[st] respondent Corporation to the Government, dt.21.4.2008, requesting for permitting regularisation of those persons who were included in the rank list published by the PSC on 18.5.1992 and those who were engaged initially as empanelled conductors on the basis of advice issued by PSC. It is mentioned in Ext.P8 that; _“ it is informed that all candidates who were initially appointed on empanel basis except the conductors included in the 1992 rank list of conductors were given the benefit of regularisation with effect from the date of their initial engagement. The candidates in the 1992 PSC list were not given this benefit for the reason that they were initially advised by the PSC also on empanel basis. Fairness and equity requires that they are also entitled for regular appointment from the initial date of their appointment as in the case of similarly situated Conductors, Drivers and other categories of employees who were regularised afterwards ”._ 5. It is evident from Exts.P9 and P10 that while considering Ext.P8, the Government sought certain clarifications from the 1[st] respondent and the 1[st] respondent Corporation had clarified those issues in favour of regularisation of the candidates WP(C). 14191 /2011 5 with effect from the date of their initial appointment. The petitioner had also produced Ext.P12 'consolidated note' contained in the 'Note File' of the Government in relation to Ext.P1 order. Ext.P12 will indicate that the proposal submitted by the 1[st] respondent Corporation was approved at the level of different authorities in the Government, except by the PSC, who objected stating that a person who worked as an empaneled conductor cannot be regarded as a member of the service of KSRTC and hence he is not entitled to regularisation from the date of his initial advice on empanel basis. However, overruling the objections raised by PSC, the proposal was approved by the Government in Ext.P1. The petitioners had also produced copies of Exts.P5 to P7 orders issued by the 1[st] respondent Corporation wherein regularisation with retrospectivity was given to persons appointed on temporary basis, employees appointed under dyingin-harness scheme, and empanelled employees appointed otherwise than on the basis of PSC advice. 6. Contention of the petitioners is that the rider imposed in Ext.P4 with respect to seniority is a clear deviation from the WP(C). 14191 /2011 6 stand taken by the Corporation all along. It had resulted in denying due seniority based on Ext.P1, which was already granted to many other similarly situated persons. The petitioners have impleaded respondents 3 to 5, their immediate juniors in the rank list of conductors, as representatives of persons who will be affected by decision of this court. Additional respondent No.6 got himself impleaded in the writ petition, as a person interested in the subject matter. Respondents 3 to 5 have not chosen to contest the case by filing any counter affidavit. A detailed counter affidavit has been filed by the Additional 6[th] respondent. It is conceded that the 6[th] respondent was initially advised on 25.7.91 and appointed as empanelled conductor with effect from 9.11.1992. His service was subsequently regularised with retrospective effect from the date of initial engagement. Admittedly he is senior to the petitioners in service, because the petitioners were initially engaged only in the year 1993. However, 6[th] respondent contended that the petitioners are not entitled for regularisation with effect from the date of their initial advice, in view of the fact WP(C). 14191 /2011 7 that they are only temporary appointees under Rule 9(a)(i) of KS and SSR. It is further contended that going by Rule 27(c) of Part II of KS and SSR the date of seniority in service can be counted only from the date of effective advice by PSC. Referring to various judgments of this court and the Hon'ble Supreme Court, learned counsel appearing for the 6[th] respondent contended that seniority of the petitioners cannot be reckoned from the initial date of advice. 7. It is pertinent to note that, the 1[st] respondent Corporation had conceded that they have requested the Government to accord sanction for regularisation of the petitioners with effect from the date of their initial appointment. It is evident that the Corporation had conceded that similar benefits have been granted to various other groups of employees. In such circumstances, stand taken in Ext.P4 imposing rider with respect to seniority cannot be justified. There is no legitimate reason to deny benefits to the petitioners, which was granted by the Corporation to similarly situated other employees. WP(C). 14191 /2011 8 8. The only question which need be looked into is the contentions raised on the basis of Rule 27 (c) of Part II of KS and SSR. But in the case at hand it is clear that engagement of the petitioners as empanelled conductors were made on the basis of advice issued by PSC. Rule 27(c) enumerate that seniority of a person appointed to a class, category or grade in a service on the advice of the commission shall be determined by the respective date of first effective advice made for his appointment to such class, category or grade. Rule 27(c) does not insist that such effective advice should be made against a substantive vacancy reported and it should be an advice for a regular appointment. However, Rule 27(c) does not prohibit assignment of seniority with effect from any previous date on the basis of regularisation in service. Therefore even if the date of first advice of the petitioners as empanelled conductor cannot be treated as the date determining their seniority in service, the retrospectivity given on regularisation can be reckoned for the purpose of assigning due seniority. 9. Learned counsel for the 6[th] respondent had relied on WP(C). 14191 /2011 9 Ext.R6(a) judgment of this court dt. 2.7.2012 in WP(C). No.25121/2006 and connected cases. Referring to Rule 27(c) of Part II of KS & SSR, in a dispute relating to inter-se seniority between two categories of employees, a learned Judge of this court observed that with respect to candidates advised by PSC their seniority can be determined only with respect to their respective date of advice. But on facts this case can be distinguished. In the case of the petitioners they were initially appointed on the basis of advice issued by the PSC. Therefore I am of the view that despite provisions contained in Rule 27(c) the benefit granted through Ext.P1 can be sustained. 10. Sri.Sajeev Kumar K.Gopal, learned counsel appearing for the petitioners contended that by virtue of section 34 of the Road Transport Corporation Act 1950, the Government is empowered to give general instructions and directions relating to recruitment, conditions of service and training of employees of the 1[st] respondent Corporation. Since the Corporation is established by virtue of provisions contained in the said Act, the 1[st] respondent Corporation is bound to implement Ext.P1 order WP(C). 14191 /2011 10 without affecting any change. Learned counsel also relied on a decision of the Hon'ble Supreme Court in **Direct Recruit Class II Engineering Officers Association vs. State of Maharashtra and others (1990(2) SCC 715),** to contend that the period during which the petitioners continued in provisional service can be treated as officiating service. It is held therein that if the initial appointment is not made by following procedure laid down by the rules, but the appointees continued in the post uninterruptedly till the regularisation of his service in accordance with the rules, such period can be counted as officiating service. 11. Learned counsel for the 6[th] respondent Sri.N.Unnikrishnan raised yet another contention that the PSC is the authority to take ultimate decision on the issue and it ought to have been taken only on the basis of opinion expressed by the PSC. He contended that since the PSC has not been impleaded in the party array, the writ petition cannot be allowed. As observed in the forgoing paragraphs, it is evident that the PSC had declined approval of the proposal for regularising the WP(C). 14191 /2011 11 petitioners and others with retrospective effect from their date of first advice. But overruling such opinion of the PSC, the Government took a decision in Ext.P1 to regularise them with retrospective effect. Learned counsel for the petitioners had pointed out the Kerala Public Service Commission (Additional Functions Act) 1963. Section 2(3) of the said Act provides that the State Government has overriding power to take a final decision where there is a difference of opinion between the establishment and the PSC in the matter of regularisation of employees. The above decision has been reiterated by the Hon'ble Supreme Court in **Hariharan vs. Balachandran Nair (2000 (3) KLT 585(SC).** He also pointed out Rule 5 of the KPSC (Consultation by KSRTC) Rules 1969. The said Rule empowers KSRTC to reject or to deviate from advice of the PSC by referring the matter for decision of the Government, and in such cases the decision which will be taken by the Government will be final. 12. Going by the above quoted provisions and the settled legal position, I am of the considered view that the decision taken WP(C). 14191 /2011 12 by the Government in Ext.P1 does not suffer from any illegality or infirmity. On that basis, curtailment of benefits regarding seniority imposed through Ext.P4 cannot be sustained. 13. In the result the writ petition is disposed of by quashing Ext.P4 to the extent it restricts continuation of the present inter-se rank and seniority of the petitioners. The 1[st] respondent Corporation is directed to assign due seniority to the petitioners in the cadre of conductors with effect from their respective date of initial advice by PSC in the year 1993. 14. Necessary steps for rectifying the gradation list, if any published, shall be taken at the earliest possible, at any rate within a period of two months from the date of receipt of a copy of this judgment. Needless to observe that the petitioners will be entitled to benefit of seniority for the purpose of promotion and for reckoning qualifying service. But they will not be entitled for any monetary benefits with retrospectivity. C.K.ABDUL REHIM, JUDGE pmn/ WP(C). 14191 /2011 13 WP(C). 14191 /2011 14