R. Sundararaj and others v. State of Kerala and Kerala State Road Transport Corporation

## **THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 05TH DAY OF AUGUST 2019 / 14TH SRAVANA, 1941** ## **WP(C).No.12255 OF 2017(F)** ## **PETITIONER/S:** - **1 R.SUNDARARAJ AGED 48 YEARS EMPANELLED DRIVER, KSRTC,VELLARADA DEPOT, VELLARADA,THIRUVANANTHAPURAM.** - **2 BIJU S.R EMPANELLED DRIVER, KSRTC,KATTAKADA DEPOT, KATTAKADA, THIRUVANANTHAPURAM.** - **3 JAYAKUMAR V EMPANELLED DRIVER, KSRTC,KATTAKADA DEPOT, KATTAKADA, THIRUVANANTHAPURAM.** - **4 JAYADAS R EMPANELLED DRIVER, KSRTC,KATTAKADA DEPOT, KATTAKADA, THIRUVANANTHAPURAM.** - **5 JAYARAJ A EMPANELLED DRIVER, KSRTC,KATTAKADA DEPOT, KATTAKADA, THIRUVANANTHAPURAM.** - **6 SAMRAJ J EMPANELLED DRIVER, KSRTC,KATTAKADA DEPOT, KATTAKADA, THIRUVANANTHAPURAM.** - **7 ALOCIOUS Y EMPANELLED DRIVER, KSRTC,POOVAR DEPOT, POOVAR,THIRUVANANTHAPURAM.** - **8 JAYARAJ S EMPANELLED DRIVER, KSRTC,POOVAR DEPOT, POOVAR, THIRUVANANTHAPURAM.** - **9 BIJU C EMPANELLED DRIVER, KSRTC,VIKAS BHAVAN DEPOT, THIRUVANANTHAPURAM.** - **10 BAIJU S EMPANELLED DRIVER, KSRTC,VELLANAD DEPOT, VELLANAD, THIRUVANANTHAPURAM.** **WP(C).No.12255 OF 2017(F)** 2 - **11 REYMOND J EMPANELLED DRIVER, KSRTC,VELLARADA DEPOT, VELLARADA,THIRUVANANTHAPURAM.** - **12 SANTHOSH KUMAR N EMPANELLED DRIVER, KSRTC,VELLARADA DEPOT, VELLARADA,THIRUVANANTHAPURAM.** - **13 SHAJI K.S EMPANELLED DRIVER, KSRTC,VELLARADA DEPOT, VELLARADA,THIRUVANANTHAPURAM.** - **14 R.BIJU EMPANELLED DRIVER, KSRTC,THIRUVANANTHAPURAM CENTRAL DEPOT,THIRUVANANTHAPURAM.** - **15 T.SURESH EMPANELLED DRIVER, KSRTC,KATTAKADA DEPOT, KATTAKADA, THIRUVANANTHAPURAM.** ## **BY ADV. SRI.K.P.RAJEEVAN** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY,TRANSPORT DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM. PIN-695 001.** - **2 KERALA STATE ROAD TRANSPORT CORPORATION REPRESENTED BY ITS MANAGING DIRECTOR,TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM,PIN-695 023.** ## **OTHER PRESENT:** ## **SRI T.P SAJAN- STANDING COUNSEL- KERALA STATE ROAD TRANSPORT CORPORATION** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.12255 OF 2017(F)** 3 ## **JUDGMENT** The petitioners who were working as Empanelled Employees of Kerala State Road Transport Corporation (KSRTC) at various Depots, have filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P6 order dated 18.09.2015. The petitioners are also sought for a declaration that they are entitled to get their services regularised on completion of ten years of service; and a writ of mandamus commanding the respondents to issue necessary orders to regularise their service on completion of ten years of service. 2. On 06.04.2017, when this writ petition came up for admission, this Court admitted the matter on file. The learned Government Pleader took notice for the 1[st] respondent. The learned Standing Counsel took notice for the 2[nd] respondent. 3. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for the 1[st] respondent and also the learned Standing Counsel appearing for the 2[nd] respondents KSRTC. 4. The sole issue that arises for consideration in this **WP(C).No.12255 OF 2017(F)** 4 petition as to whether any interference is warranted on Ext.P6 order dated 18.09.2015 of the 1[st] respondent, whereby the request made by the petitioners for regularisation of their service stands rejected. 5. The fact that the initial appointment of the petitioners as Empanelled Drivers through Employment Exchange was on provisional basis, in the absence of candidates advised by Kerala Public Service Commission, is not in dispute. 6. Going by the averments in paragraph 3 of the writ petition, the petitioners have more than 10 years of service as **on 01.01.2015** in KSRTC, as provisional employees. Clause XLVI (v) of the Bi-party Settlement dated 28.11.2008 between KSRTC and the recognised Trade Unions provides for regularisation of those provisional employees in the category of Driver, Conductor and Mechanical Staff, who are in the panel of KSRTC as on 1.9.2008, who had been working for more than 8 years, and having minimum of 120 duties per year. That Bi-party Agreement was approved by the Government vide G.O.(P)No.29/2009 Trans. Dated 13.9.2009. In terms of clause XLVI (v) of Bi-party Settlement dated **WP(C).No.12255 OF 2017(F)** 5 28.11.2008, KSRTC submitted a proposal before the Government for regularisation of those provisional employees who were in the panel of KSRTC as on 1.9.2008 and having 8 years of service and performed a minimum of 120 duties in an year, in the category of Driver, Conductor, Mechanical Staff. As per the letter dated 11.11.2011, the list of 1353 Conductors, 729 Drivers and 392 Mechanical Staff, totalling 2474, were furnished to the Government by the Chairman and Managing Director of KSRTC. The list of 2474 employees furnished to the Government, as per letter dated 11.11.2011 of the Chairman and Managing Director of KSRTC, consisted of persons who have completed 8 years of service as on 01.09.2008 and performed a minimum of 120 duties in a year. The Government, having examined the matter, accorded sanction vide G.O.(Ms.)No.78/2011/Tran. dated 22.12.2011, a copy of which is placed on record as Ext.P2 in this writ petition, for regularising the service of those provisional employees in the categories of Driver, Conductor and Mechanical Staff in KSRTC, who have completed 10 years service as on 21.12.2011, subject to the conditions enumerated in clauses (1) to (11) of that order dated **WP(C).No.12255 OF 2017(F)** 6 22.12.2011. Based on the sanction accorded in the said Government Order dated 22.12.2011, KSRTC issued a memorandum dated 11.4.2012, whereby regularisation was ordered for those employees of KSRTC who have 10 years of service as on 22.12.2011 and performed a minimum of 120 duties in a year. 7. The insistence of a minimum of 120 duties in a year, as a condition for grant of regularisation, was under challenge in a batch of writ petitions before this Court. Those writ petitions were disposed of by the judgment dated 3.4.2013, whereby this Court held that KSRTC cannot insist that the employees should have performed a minimum of 120 days a year for all 10 years, in the absence of any stipulation to that effect in Government Order dated 22.12.2011. The above judgment of the learned Single Judge in **Suresh Kumar v. State of Kerala [2013 (2) KLT 258]** was under challenge before a Division Bench of this Court in W.A.Nos.803, 804, 806, 807 and 811 of 2013 filed by KSRTC. Those writ appeals were later dismissed as withdrawn by the judgment dated 4.6.2013. However, KSRTC was given liberty to approach the Government with a representation, which shall be considered **WP(C).No.12255 OF 2017(F)** 7 in accordance with the procedure contemplated. 8. After the judgment of the Division Bench dated 04.06.2013 in W.A.No.803 of 2013 and connected cases, KSRTC moved a request dated 18.06.2013 before the Government, requesting for clarificatory orders on the prelevance of the duty clause of minimum 120 duties in a year, in Government Order dated 22.12.2011. The Government, after considering the request made by KSRTC, issued G.O.(Ms.) No.105/ 2013/ Trans. dated 21.11.2013, whereby it was clarified that, the condition of minimum 120 days duty per year incorporated in sub para (5) of Paragraph XLVI in G.O.(Ms.)No.26/2009/Tran. dated 13.2.2009 as a requisite qualification to be enumerated as one among the other qualifications stipulated in Condition No.7 of G.O. (Ms.)No.78/2011/Tran. dated 22.12.2011. The condition of minimum 120 days per year is therefore specifically incorporated in Condition No.7 of Government Order dated 22.11.2011. The Chairman and Managing Director of KSRTC should verify and satisfy the above condition also as one among the other conditions enumerated in Condition No.7 of Government Order dated 22.12.2011, for regularsation of **WP(C).No.12255 OF 2017(F)** 8 provisional employees. 9. Based on Government Order dated 21.11.2013, KSRTC filed R.P.No.1031 of 2013 seeking review of the judgment of this Court dated 29.08.2013 in W.P.(C) No.5113 of 2013. Similarly, R.P.Nos.1032 of 2013, 20, 21 and 34 of 2014 were filed seeking review of the judgment in W.P.(C) Nos.5241 of 2013, 9369 of 2013, 16721 of 2013 and 21275 of 2013 respectively. The said review petitions ended in dismissal by the order dated 17.1.2014. In the said order, this Court found that, even though insistence for 120 duties is styled as a clarification of Government Order dated 21.11.2013, it is incorporation of a new eligibility criteria which was not included in the Government Order dated 22.12.2011. Therefore, insistence of an additional eligibility criteria for the purpose of regularisation cannot be given retrospectivity. 10. KSRTC filed writ appeals against the order of the learned Single Judge dated 17.1.2014, whereby the Review Petitions stands rejected and also the judgment in the writ petitions. Those writ appeals, namely, W.A.Nos.339, 340, 341 and 354 of 2014 ended in dismissal by the judgment dated 12.3.2014. The Division Bench held that the provision in **WP(C).No.12255 OF 2017(F)** 9 Government Order dated 21.11.2013 that the Chairman and Managing Director should verify and satisfy the conditions of minimum 120 days duty per year operates only from 21.11.2013 and would not affect cases from which W.A.Nos.339, 340, 341 and 354 of 2014 have been filed. Therefore, those writ appeals were dismissed by the judgment dated 12.3.2014, on the ground that the Government Order dated 21.11.2013 cannot have any impact on the question of regularisation of the employees covered by the judgment of the learned Single Judge. 11. The judgment of the Division Bench in W.A.No.339 of 2014 and connected cases were taken up before the Apex Court in Special Leave Petition Nos.18803-18006 of 2014. By the order dated 24.3.2017 in W.P.(C).No.16113/2018, the Apex Court allowed Civil Appeal Nos.4435-38 of 2017 arising out of those Special Leave Petitions, by setting aside the judgment of the Division Bench of this Court in W.A. No.340 of 2013 and connected cases. In that order, the Apex Court held that, as per the Government Order dated 21.11.2013, the employees seeking regularisation are required to have 120 days of minimum period of service in a year. The High Court held that **WP(C).No.12255 OF 2017(F)** 10 this requirement cannot be applied to persons already working prior to the date of the said order. The Apex Court, disagreeing with the said view of this Court, held that before granting regularisation, appropriate conditions for regularisation can be laid down even for employees already working. Accordingly, those Civil Appeals were allowed by setting aside the impugned order. 12. The finding of the 1[st] respondent in paragraph 3 of Ext.P6 order (at page 2 of Ext.P6) reads thus: “In obedience to the directions contained in the judgments read as 11[th] , 12[th] , 13[th] , 14[th] , 15[th] , 16[th] & 17[th] papers above the petitioners have been heard by the Deputy Secretary (Transport) on 25.07.2015. At the time of Hearing the petitioners admitted themselves that, they are not fulfilling all the conditions stipulated in the Government order read as 2[nd] and 3[rd] papers above. It was also revealed from the hearing that, the petitioners joined the provisional service of the - Corporation during 2003 05 year. These candidates could not complete 10 years of service as on 22.12.2011 and as such, the benefit of Government Order read as 1 st paper above cannot be extended to the petitioners. If the petitioners satisfy all the conditions laid down in the Government order read as 1[st] & 3[rd] papers above, then the Managing Director, KSRTC is at liberty to regularize the service of the petitioners in the light of the said Government Orders. There is no need to issue fresh **WP(C).No.12255 OF 2017(F)** 11 order in their cases from the part of the Government.” (Underline supplied) 13. Having considered the submissions made by the learned counsel on both sides and also the pleadings and materials on record, this Court finds that, as on 22.12.2011, the cut off date for regularisation, the petitioners were not having 10 years service and performed a minimum of 120 duties in a year. Going by the averments in the writ petition, they have completed 10 years of service as provisional employees, as on 01.01.2015. 14. In such circumstances, the reasoning of the 1[st] respondent in Ext.P6 that the petitioners are entitled for regularisation only if they satisfy all the conditions laid down by the Government in the orders dated 22.11.2011 and 21.11.2013 warrants no interference at the hands of this Court, in exercise of the writ jurisdiction under Article 226 of the Constitution of India. In the result, this writ petition fails and the same is accordingly dismissed. Dxy **ANIL K.NARENDRAN JUDGE** **WP(C).No.12255 OF 2017(F)** 12 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE DUTY PASS ISSUED TO THE 1ST PETITIONER, DATED NIL.** **EXHIBIT P2 A TRUE COPY OF GOVT. ORDER DATED 22.12.2011.** **EXHIBIT P3 A TRUE COPY OF COVER PAGE, PAGED 12 AND 13 INCLUDING CLAUSE XLIX OF THE BILATERAL AGREEMENT DATED 22.5.2012.** **EXHIBIT P4 A TRUE COPY OF REPRESENTATION DATED 10.3.2015 FILED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT.** **EXHIBIT P5 A TRUE COPY OF JUDGMENT DATED 7.4.2015 IN W.P[C]NO.11132 OF 2015.** **EXHIBIT P6 A TRUE COPY OF ORDER DATED 18.9.2015 ISSUED BY THE 1ST RESPONDENT.**