Kuruvila Joseph v. Kerala Tourism Development Corporation Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931** **WP(C).No. 30606 of 2005(R)** **----------------------------------------PETITIONER(S):** **-------------------------** **KURUVILA JOSEPH, BOAT SYRANG, ARANYANIVAS, THEKKADY.** **BY ADVS. SMT.AYSHA YOUSEFF, SMT.RABIA BEEGAM T.K., SMT.VIDYA KUMARI.B.VAID.** **RESPONDENT(S):** **----------------------------** **1. KERALA TOURISM DEVELOPMENT CORPORATION LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, CHAITHRAM HOTEL, THAMPANOOR, THIRUVANANTHAPURAM.** ## **2. MANAGER,** - **KERALA TOURISM DEVELOPMENT CORPORATION LTD., ARANYA NIVAS, THEKKADY.** **3. N.THEVAN, BOAT DRIVER, IN CHARGE OF BOAT SUPERVISOR, ARANYA NIVAS, THEKKADY.** **4. CHIEF INSPECTOR, IRRIGATION DEPARTMENT, KAKKANAD, ERNAKULAM-KOCHI-11.** **R1 & R2 BY ADV. MR.B.GOPAKUMAR, SC, K.T.D.C. R3 BY MR.C.C.THOMAS, SENIOR ADVOCATE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.30606/2005 R** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE CERTIFICATE OF COMPETENCY AS A SYRANG DTD. 21/10/2002 ISSUED BY THE CHIEF ENGINEER, IRRIGATION DEPT. TO THE PETITIONER.** - **P2: COPY OF THE CERTIFICATE OF COMPETENCY AS A DRIVER DTD. 20/10/2005 ISSUED BY THE CHIEF ENGINEER, IRRIGATION DEPT. TO THE PETITIONER.** - **P3: COPY OF THE CERTIFICATE OF COMPETENCY AS A BOAT MASTER ISSUED BY THE CHIEF ENGINEER, IRRIGATION DEPT. TO THE PETITIONER.** - **P4: COPY OF THE RELEVANT PORTION OF THE GENERAL CONDITIONS AND RULES.** - **P5: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **P6: COPY OF THE JUDGMENT DTD. 12/08/2005 IN WPC.NO.23257/05.** - **P7: COPY OF THE ORDER NO.KTDC/PA(3)/1986/05 DTD. 12/09/05 OF THE 1ST RESPONDENT.** - **P7(A): COPY OF THE ORDER DTD. 27/10/2005 ISSUED BY THE 1ST RESPONDENT PROMOTING THE 3RD RESPONDENT.** - **P7(B): COPY OF THE JOINING REPORT DTD. 16/11/2005 OF THE 3RD RESPONDENT.** - **P8: COPY OF THE REPRESENTATION DTD. 28/09/2005.** - **P9: COPY OF THE LETTER DTD. 31/01/2007 FROM THE OFFICE OF THE CHIEF INSPECTOR OF BOATS TO THE PETITIONER.** **RESPONDENT'S EXHIBITS: N I L** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 30606 of 2005 **==> picture [260 x 24] intentionally omitted <==** **==> picture [102 x 12] intentionally omitted <==** The petitioner is a boat syrang working in motor boats belonging to the 1[st] respondent-Kerala Tourism Development Corporation Ltd., at Aranya Nivas, Thekkady. He claims to be the holder of boat master's certificate issued under Rule 118 of the Kerala Public Canals and Public Ferries Act and Rules, which, according to the petitioner, is a mandatory qualification for working in motor boats. His grievance in this writ petition is regarding promotion given to the 3[rd] respondent to the post of boat supervisor. A vacancy arose on 30-6-2005. The petitioner laid a claim for that post. Apprehending that his claim would not be considered, the petitioner filed W.P(C) No. 23527/2005 before this Court, in which, by Ext. P6 judgment, this Court directed the 1[st] respondent to take a decision on the petitioner's request. Pursuant to the same, the 1[st] respondent passed Ext. P7 order dated 12-9-2005 wherein, it was held that the petitioner does not possess the prescribed qualifications for the post of boat supervisor and the 3[rd] respondent does. Pursuant thereto, by Ext. P7 (a) order, the 3[rd] respondent was appointed as boat supervisor. The petitioner is challenging Exts.P7 and P7(a) in this writ petition. 2. The petitioner's contention is that the 3[rd] respondent does not even possess the qualification prescribed for the post of boat driver, which he was holding, insofar as apart from studying up to 4[th] standard, he does not have any qualification worth the name for being appointed as a boat driver. The petitioner points out that the qualifications prescribed for the post of boat driver as well as boat supervisor are stipulated in Ext. P4 rules, wherein for the post of boat driver, the qualifications prescribed are VIII standard, MMD licence and 3 years' experience as boat driver/boat lascar. For the post of boat supervisor, selection is to be made subject to suitability and W.P.C. No. 30606/05 -: 2 :- seniority from among those boat drivers and boat syrangs who have completed not less than 15 years' of service. The petitioner submits that the word “suitability” means suitability to occupy the post of boat supervisor. According to the petitioner, since boat supervisor is a promotion post for boat driver and boat syrang, the minimum suitability for the post would be the qualifications prescribed for the post of boat driver and boat syrang, which the 3[rd] respondent does not possess. Therefore, according to the petitioner, by no stretch of imagination, the 3[rd] respondent should have been held suitable for the post of boat supervisor. The petitioner also relies on the decision of the Supreme Court in **Valsala Kumari Devi. M.** v. **Director, Higher Secondary Education and Others** , (2007) 8 SCC 533, wherein the Supreme Court has explained the meaning of the word “suitability” as meaning that a person to be appointed shall be legally eligible and eligibility should be taken to mean “fit to be chosen.” The contention of the petitioner is that in this case, by no standards, the 3[rd] respondent is fit to be chosen to the post of boat supervisor. The petitioner therefore submits that the petitioner who possesses all the qualifications prescribed should have been selected in preference to the 3[rd] respondent as boat supervisor. 3. The 1[st] respondent has filed a counter affidavit supporting the appointment of the 3[rd] respondent. The 3[rd] respondent has not filed any counter affidavit. 4. The contention now raised before me on behalf of the respondents is that the petitioner does not possess the minimum service prescribed as qualification for boat supervisor insofar as at the relevant time, he had put in less than 5 years' service and therefore he was not eligible for being considered even. The 3[rd] respondent would contend that he had 17 years of service in KTDC W.P.C. No. 30606/05 -: 3 :- and being a boat driver in the service of the 1[st] respondent, as per the Special Rules, he is eligible to be appointed to the post of boat supervisor. 5. I have considered the rival contentions in detail. 6. As I have already noted, the post to which the petitioner and the 3[rd] respondent are contesting is the post of boat supervisor for the boats employed in the Periyar lake at Thekkady. It is common knowledge that very recently, there was a big tragedy which occurred in that lake on account of the capsizing of a tourist boat. Lot of hue and cry have been raised in respect of the lacks of safety of boat used by the KTDC. I must consider the contentions of the parties in the wake of that tragedy. 7. Elaborate rules are prescribed in respect of boats and personnel to be employed in boats by the Public Canals and Public Ferries Rules 1100 (ME). Ancient though the Rules are, it makes elaborate provisions for ensuring safety of people travelling in boats used in public canals and ferries in the State of Kerala. Perhaps, law makers of those times were much more wiser than those of present times. Qualifications are prescribed for various personnel to man a boat. Rule 120 thereof prescribes the qualification of a motor boat driver, which reads thus: “ **120. Qualification of Motor Boat Driver:** - The qualification required of a person desirous of obtaining a driver's (Motor Boat) certificate of competency shall be as follows: - (1) He shall be not less than 21 years of age. - (2) He shall produce a medical certificate as to his physical fitness. - 3) He shall produce a certificate from the W.P.C. No. 30606/05 -: 4 :- responsible head of the firm or workshops concerned that he had worked for at least two continuous years, of which not less than 6 months shall have been spent in the capacity of an assistant driver in charge of a motor engine or a fitter in an engineering workshop and that he is sober and intelligent. - (4) He shall pass viva voce examination satisfying the examiners that (a) he fully understands the working and management of motor engines and separate use of, magnetos carburettors water circulating and oil pumps, sparking plugs, etc., and that he is able to some extent, to explain their actual means of operation. - (b) he is able to dismantle motor engines and any accessory part of them detecting excessive wear or other defect where it exists and correctly reassemble the parts. - (c) he is able to detect what is wrong in the event of the engine failing to start up or any accessory part to perform its proper duty. - (d) he is able to show he would act in case of breakdown of any portion of the machinery. - (e) he is able to show that he fully realises the danger of fire and understands the precaution necessary to prevent it and what to do when a fire actually breaks out.” Perhaps, Ext. P4 Special Rules must have been framed in the light of the said Rules although Ext. P4 does not even refer to the Public Canals and Public Ferries Rules at all. As per Ext. P4 Rules, the qualifications prescribed for the post of boat driver are: - (1) VIII standard. - (2) MMD licence, and (3) three years experience as boat driver, boat lascar (for internal promotion). Admittedly, the 3[rd] respondent does not possess any of these qualifications. In Ext. P7 order passed pursuant to the W.P.C. No. 30606/05 -: 5 :- directions of this Court, it is stated that the 3[rd] respondent was appointed giving relaxation in general educational qualifications of pass in VIII standard and possession of MMD licence. Ext. P7 and the counter affidavit filed by the 1[st] respondent in this case do not disclose the source of power of the Board of Directors of the 1[st] respondent for relaxing minimum qualifications prescribed. I am surprised that a person who does not have any qualification whatsoever for going anywhere near a boat has been appointed as a boat driver relaxing all the three qualifications prescribed by the Special Rules. If this is the way the KTDC is making appointments of personnel for manning their motor boats, no wonder the tragedy which has occurred recently at Thekkady, has really occurred. In fact, during the last few years, several boat tragedies had occurred in the State of Kerala. Even this Court had occasion to observe that none of the recommendations of a commission appointed by the Government for ensuring safety of the travelling public has been implemented in respect of boat services in Kerala. 8. Ext. P7 order of the 1[st] respondent itself is contradictory. In the 3[rd] paragraph of Ext. P7, it is stated thus: “Regarding the objections raised against the promotion of Shri. N. Thevan, Boat Driver as Boat Supervisor, it may be noted that no specific qualification is prescribed for the promotion post of Boat Supervisor, except 15 years service in the feeder category of Boat Driver/Syrang.” In the next paragraph, it is stated that the 3[rd] respondent is continuing in the post of boat drier for the last 9½ years. After first finding that the qualifications prescribed is 15 years service in the feeder category of boat driver, they have simply accepted 9½ years of service as a boat driver as sufficient qualification on the mere ground that he has W.P.C. No. 30606/05 -: 6 :- put in 17 years of service in the Corporation. The way this selection has been made gives some insight into the manner in which appointments of personnel are made in the KTDC. I am of opinion that such transgressions cannot be pardoned at all. Driving boats is the job of an expert qualified to do the same. The safety of the lives of the passengers of the boat are in the exclusive hands of the driver of the boat. That being so, it is mandatory to ensure strict compliance with the qualifications prescribed before appointing a person as a boat driver. Because of the fact that lives of the people travelling in the boats are in the hands of the driver, I do not think that any kind of relaxation could have been made in respect of the qualifications prescribed for appointing anybody to that post. As such, I am of opinion that the very appointment of the 3[rd] respondent as boat driver itself is totally against rules and all canons of safety and ought to be corrected at the earliest opportunity. Therefore, even if the 3[rd] respondent's services cannot be terminated, he should be shifted to some other posts for which his qualification is sufficient. Since the 3[rd] respondent is not even suitable to be appointed as a boat driver, he cannot certainly be suitable for the post of boat supervisor. As such, Exts.P7 and P7(a) are totally unsustainable and liable to be quashed. I do so. 9. That does not necessarily mean that the petitioner is entitled to a direction to the 1[st] respondent to appoint him as boat supervisor. Admittedly, he does not possess the service qualification prescribed for the post of boat supervisor insofar as he has not, even as on today, put in the minimum service qualification of 15 years. 10. If the 1[st] respondent wants to appoint a person as boat supervisor or even for that matter as boat driver, that shall be by W.P.C. No. 30606/05 -: 7 :- strictly complying with Ext. P4 Rules prescribed as also the specifications in the Public Canals and Public Ferries Act and Rules. They shall ensure that any further appointments shall be only after complying with the specifications of not only Ext. P4 but also the Public Canals and Public Ferries Act and Rules. If any person has already been appointed in violation of the Rules, such appointments shall also be promptly reviewed and those who do not possess the prescribed qualifications shall immediately be terminated from service or shifted to some other post for which their qualifications are sufficient. In any event, they shall not be allowed to work in posts requiring specific expert qualifications which they do not possess. With the solemn hope that the wisdom would dawn on the 1[st] respondent at least now, I allow the writ petition as above. S. Siri Jagan, Judge. Tds/