RP.No. 1031 of 2013 in WP(C).5113/13 (L)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **FRIDAY, THE 17TH DAY OF JANUARY 2014/27TH POUSHA, 1935** **RP.No. 1031 of 2013 ()** **---------------------------JUDGMENT DATED 02/07/2013 IN WP(C).NO. 5113/2013 (L).** **........** ## **REVIEW PETITIONERS/RESPONDENTS:** **----------------------------------------------------------** **1. THE CHAIRMAN AND MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM-695 023.** ## **2. THE ASSISTANT TRANSPORT OFFICER,** **KERALA STATE ROAD TRANSPORT CORPORATION, CHATHANNOOR DEPOT, KOLLAM DISTRICT, PIN-691 572.** **BY ADV. SRI.BABU JOSEPH KURUVATHAZHA, SC, KSRTC.** ## **RESPONDENTS/PETITIONERS:** **---------------------------------------------** **1. P. RAMADAS, AGED 44 YEARS, S/O.M.R. PADMANABHAN, PAVARAZHIKATHU VEEDU, ALUMOODU, PALLICHIRA P.O., KOLLAM, PIN-690 303 (DRIVER, KERALA STATE ROAD TRANSPORT CORPORATION, CHATHANNOOR DEPOT, KOLLAM).** **2. N. PRAKASH, AGED 44 YEARS, S/O.NALINAKSHAN, NALINASADANAM, CHIRIKARATHAZHAM P.O., KOLLAM, PIN-691 578, (DRIVER, KERALA STATE ROAD TRANSPORT CORPORATION, CHATHANNOOR UNIT, KOLLAM).** ## **BY ADV. SRI.R.PUSHPANGATHAN PILLAI.** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 17-01-2014, ALONG WITH RP NO. 1032 OF 2013 AND CONNECTED CASES,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** ## **RP.No. 1031 of 2013** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE A COPY OF THE JUDGMENT IN WP(C).NO. 14708/2013 DATED 19/06/2013 OF THIS HONOURABLE COURT. ANNEXURE B COPY OF THE REPRESENTATION DATED 18/06/2013 SENT BY THE CORPORATION TO THE GOVERNMENT. ANNEXURE C COPY OF THE JUDGMENT IN W.A. NO. 807/2013 DATED 04/06/2013 OF THIS HONOURABLE COURT. ANNEXURE D COPY OF THE JUDGMENT IN WP(C).NO. 8573/2013 DATED 03/04/2013 OF THIS HONOURABLE COURT. ANNEXURE E COPY OF THE G.O.(MS) NO.105/2013/TRANS. DATED 21/11/2013 ISSUED BY THE GOVERNMENT. RESPONDENT'S ANNEXURES:-** **ANNEXURE R1A COPY OF THE DUTY DETAILS IN RESPECT OF 1ST ORIGINAL PETITIONER (1ST RESPONDENTDEPONENT HEREIN). ANNEXURE R2A COPY OF THE DUTY DETAILS IN RESPECT OF THE 2ND ORIGINAL PETITIONER (2ND RESPONDENT HEREIN).** **//TRUE COPY//** **P.S. TO JUDGE** **rs.** ## C.K.ABDUL REHIM,J. ------------------------------------------------------------------- RP.Nos.1031/13 in WP(C).5113/13,1032/13 in WP(C) 5241/13, 20/14 in WP(C) 9369/13,21/14 in WP(C)16721/13 & 34/2014 in WP(C). 21275/2013. ----------------------------------------------------------------------Dated this the 17th day of January, 2014 ## ORDER In the judgments which are sought to be reviewed through these revision petitions, this court had issued directions to the Kerala State Road Transport Corporation (KSRTC) either to issue orders regularising service of the petitioners concerned or to consider the requests for regularisation and to take decision on the basis of observations contained in the judgments. 2. Issue involved relates to eligibility of the petitioners for regularisation in the service of KSRTC based on a Government order, GO(MS) No.78/2011/TRAN dt. 22.12.2011. The KSRTC had submitted proposal before the Government to regularise 1353 Conductors, 729 Drivers and 392 Mechanical staff who were working on temporary basis, on the basis of a settlement arrived with its employees to the effect that, proposal will be submitted to the Government for regularising empanneled employees in the categories of Driver, Conductor and Mechanical staff etc. who RP1031/2013 & conn. cases. 2 were in the panel of the Corporation since 1.9.2008 and having 8 years of service and performed a minimum of 120 duties in a year. The Government, after examining the proposal, had accorded sanction for regularisation of those empanneled employees who have completed 10 years of service as on 21.12.2011, subject to conditions incorporated in the said Government order. The petitioners claimed regularisation on the basis that they fulfill all the eligibility criteria stipulated in GO (MS) 78/2011. But their requests were either declined or not considered assigning the reason that they do not have 10 years of service as on 21.12.2011 with 120 duties performed in every year. The above stand was subjected to challenge based on the ground that, GO (MS) 78/2011 does not prescribe completion of 10 years service with 120 duties per year. This court in the decision in **Suresh Kumar vs. State of Kerala (2013(2) KLT 258)** held that the general instructions of the State Government issued under section 34 of the Road Transport Corporation Act 1950 is binding on KSRTC and previous agreement if any between the employees and the KSRTC should be deemed to RP1031/2013 & conn. cases. 3 have been superseded through GO (MS) 78/2011, and that the said order alone will govern the field as regards the regularisation. Writ Appeal filed from an identical judgment was dismissed by a Division Bench confirming the said view, in WA No.763/13 (judgment dt. 28.5.2013). The Division Bench held that, the Government while passing GO (MS) 78/2011 thought it fit to enhance the term of service of employees as provisional hands to 10 years, but did not impose the minimum requirement of duties, in its wisdom. Therefore insistence of 120 duties by the Corporation is definitely beyond the scope and authority and is an overreaching of the conditions stipulated in the Government order. This court in various other judgments also found that when the Government permitted regularisation of temporary employees who have completed 10 years as on 21.12.2011, it will be discriminatory to deny such benefits to any temporary employee identically situated, for the reason that he has not performed 120 duties on every year. Such a finding was rendered observing that, the empanneled employees are engaged purely on daily wage basis as per the requirements in RP1031/2013 & conn. cases. 4 each of the units. 3. The judgments are now sought to be reviewed on the basis that, subsequently the Government have issued another order, GO(MS) 105/13/TRAN dt. 21.11.2013. It is evident from the said order (produced as Annexure-E in RP.No.1031/13) that the KSRTC had requested the Government to issue a clarification to GO (MS) No.78/2011 with respect to prevalence of the clause incorporating 120 duty per year. But in the said order itself it is mentioned that while issuing GO (MS) 78/2011 the Government have considered the proposal submitted on the basis of the bi-partite settlement for regularisation of those who have performed 8 years provisional service with minimum 120 duties in an year. But the Government have decided to approve such proposal only on enhancement of the requisite period for regularisation from 8 years to 10 years. According to the Government, it is only by way of a mistake that the Government have omitted to specify the condition of 120 duties, in the operative part of GO (MS) 78/2011. It was clarified that, since the condition No.7 incorporated in GO (MS) 78/2011 had RP1031/2013 & conn. cases. 5 permitted the Chairman and Managing Director to verify and specify the educational as well as other qualifications, the said authority should be given delegated power to verify and specify the duty, based on the criteria of 120 duty per year. Hence the Government had issued a clarification to the effect that the condition of the minimum 120 duty per year as incorporated in the bi-partite settlement is also a requisite qualification to be enumerated as one among the other qualifications stipulated in condition No.7 of GO (MS) 78/2011. In view of the subsequent Government order GO MS 105/13, the petitioners are not eligible to be regularised, is the contention. Therefore a review of the judgment is sought for. 4. At the first instance, it is to be examined as to whether a review can be maintained based on the above said reason. Cardinal principles underlying in the matter of review of judgments and orders of the court is that ; (1) discovery of a new and important material, which after exercise of due diligence was not within the knowledge of the party seeking review or could not have produced by him at the time when the judgment is passed. RP1031/2013 & conn. cases. 6 (2) the judgment is passed on account of some mistake or error apparent on the face of record and (3) for any other sufficient reason. The review petitioner has no case that GO MS 105/13 was in existence at the time when the judgments were rendered. Nor there is a case that inspite of due diligence the said order should not have been produced at the time of rendering the judgments. They don't have a case that there exist any error apparent on the face of the records. It is only on the basis of a subsequent Government order, the reviews are sought for. It is specifically mentioned in GO (MS) 105/13 that this court in various judgments have directed to grant benefit of regularisation even in the absence of 120 duties. It is further mentioned that, in the judgment in WA No.803/13 and connected cases a Division Bench of this court had granted freedom to the KSRTC to approach the Government and to consider the matter in accordance with the procedure contemplated. Therefore it is evident that the KSRTC had approached the Government and obtained a subsequent order, as if it is a classification, in order to circumvent the findings rendered by this court. Whether a 7 RP1031/2013 & conn. cases. subsequent clarification can be issued to nullify the effect of a judgment or whether such a clarification can be considered as a sufficient reason for review of the judgment, is the question. This court is of the considered opinion that GO(MS). 105/13 which is subsequently issued by the Government cannot be taken as sufficient reason to review the judgments. 5. The above view is further supported by the fact that, even- though insistence for 120 duties is styled as a clarification in GO MS 105/13, it is evidently clear that it is incorporation of a new eligibility criteria which was not included in GO (MS) 78/2011. Insistence of an additional eligibility criteria, for the purpose of regularisation cannot be given retrospectivity, prima facie. However, sustainability of such a condition incorporated does not germine for consideration in these review petitions. This court is of the opinion that even if incorporation of such a condition can be sustained, it cannot have a retrospective operation with respect to judgments in existence, to deny benefits granted by this court on a proper interpretation of the terms and conditions of the GO (MS) 78/2011, which were in RP1031/2013 & conn. cases. 8 existence at the time of rendering the judgment. In the result the review petitions fail and they are accordingly dismissed. C.K.ABDUL REHIM, JUDGE pmn/ RP1031/2013 & conn. cases. 9