S. Dathan v. State of Kerala and KSRTC

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **SATURDAY, THE 31ST DAY OF MAY 2014/10TH JYAISHTA, 1936** ## **WP(C).No. 28076 of 2012 (H)** **----------------------------** ## **PETITIONER :** **--------------------------** **S. DATHAN,AGED 47 YEARS, DRIVER, KERLA STATE ROAD TRANSPORT CORPORATION, KOTTARAKARA DEPOT, KOLLAM DISTRICT.** **BY DR.K.P.SATHEESAN,SENIOR ADVOCATE ADVS. SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.ANOOP.V.NAIR** ## **RESPONDENT(S):** **----------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY THE SECRETARY, TRANSPORT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE CHAIRMAN AND MANAGING DIRECTOR, KERALA STATE ROAD TRANSPROT CORPORATION, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM-695 023.** **3. THE DISTRICT TRANSPORT OFFICER, KERALA STATE ROAD TRANSPROT CORPORATION, KOTTARAKARA DEPOT, KOLLAM DISTRICT-691 506.** **R1 BY GOVERNMENT PLEADER SRI.M.A.ABDUL SHUKOOR R2 & R3 BY SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-05-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **WP(C)NO.28076/2012** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXHIBIT P1. TRUE COPY OF THE MEMORANDUM DATED 16/1/1997 ISSUED TO THE PETITIONER. EXHIBIT P2. TRUE COPY OF THE MEMO ISSUED TO THE PETITIONER DATED 20/2/1997.** **EXHIBIT P3. TRUE COPY OF THE LETTER WRITTEN FROM THE OFFICE OF THE MINISTER FOR ELECTRICITY TO THE D.T.O, KOTTARAKARA DATED 25/6/2001.** **EXHIBIT P4. TRUE COPY OF THE RELEVANT PAGES OF THE SERVICE BOOK OF THE PETITIONER.** **EXHIBIT P5. TRUE COPY OF THE GOVERNMENT ORDER G.O.(MS) NO.78/2011/TRAN. DATED 22/12/2011.** **EXHIBIT P6. TRUE COPY OF THE JUDGMENT DATED 11/4/2012 IN WPC NO.7559/2012.** **EXHIBIT P7. TRUE COPY OF THE ORDER NO.PL-16/014915/12 DATED 28/9/2012 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P8. TRUE COPY OF THE REPLY OBTAINED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT DATED 19/11/2012.** ## **RESPONDENTS' EXHIBITS :** **NIL** **/TRUE COPY/** **P.S.TO.JUDGE** **sts** ## C.K.ABDUL REHIM,J. ------------------------------WP(C).NO. 28076 of 2012 --------------------------------Dated this the 31st day of May, 2014 ## JUDGMENT The petitioner is an empaneled Driver provisionally engaged in the service of the Kerala State Road Transport Corporation (KSRTC). He was engaged in the year 1997 on the basis of a list of candidates forwarded from the Employment Exchange. The petitioner claimed regularisation in the service of KSRTC on the basis that, by virtue of Ext.P5 Government order the KSRTC was permitted to regularise service of provisional employees who have completed 10 years, as on 22.12.2011, subject to conditions incorporated therein. Since the claim was not considered, the petitioner along with certain employees have approached this court in a writ petition. In Ext.P6 judgment this court directed the KSRTC to consider their claim for regularisation and to take an appropriate decision. Ext.P7 is the consequential order by the 2[nd] respondent. Claim of the petitioner was declined stating that the petitioner has not completed 10 years of service with 120 duties per year. According to the 2[nd] respondent, the WP(C). 28076/2012 2 petitioner had only 6 years service with 120 duties to his credit. It is pointed out that in the midst of provisional service he was engaged to another job in 2000 to 2006, as Driver of the hon'ble Minister for Power. Since his shifting from the service of KSRTC was not with previous sanction, the petitioner was readmitted to duty only in the year 2006. The broken period cannot be calculated as service in KSRTC for the purpose of regularisation, is the stand taken. Hence it is found that the petitioner is not eligible to be regularised. It is challenging the decision contained in Ext.P7, this writ petition is filed. 2. It is pointed out by the petitioner that, he was appointed to the personal staff of Minister for Electricity as 'Chauffeur' with effect from 26.5.2001. Ext.P3 letter is produced to show that the Service Book of the petitioner was called for on the basis that his service was terminated from the office of the KSRTC. Ext.P4 is the copy of the Service Book which will indicate that the petitioner was not engaged in the service of the Corporation with effect from 22.7.2000. Since the petitioner was relieved on the request made by the Government and since he was WP(C). 28076/2012 3 permitted to continue in the service of the KSRTC, it is claimed that the period from which he was out of service from KSRTC for engagement as Driver of the hon'ble Minister is to be reckoned for the purpose of regularisation. The petitioner further points out that the insistence for 120 duties per year for the purpose of regularisation was already held as not sustainable, in the decision of this court in **Suresh Kumar vs. State of Kerala (2013 (2) KLT 258)** which is confirmed by a Division Bench in the judgment in WA.No.763/2013 dt. 28.5.2013, and in many other subsequent cases. Therefore the rejection on the basis of noncompletion of 120 duties per year is not sustainable, is the contention. 3. Heard; counsel for the petitioner and Standing Counsel appearing for respondents. Rejection of regularisation is on the basis that the petitioner had not completed 10 years of service as on 21.12.2011 with 120 duties per year . As the legal position remaining settled through various rulings, the respondents are not justified in rejecting the claim for regularisation on the basis that the petitioner had not completed 120 duties per year for the WP(C). 28076/2012 4 total period of 10 years. But it is evident that the petitioner had worked only for 9 years within 21.12.2011 in the KSRTC . His claim is that the period from 2001 to 2006 during which he was engaged as 'Chauffeur' of the Minister for Electricity need to be reckoned as qualifying service for the purpose of regularisation . Conclusion in Ext.P7 is to the effect that his shifting of service was without previous sanction of the concerned authority. According to the petitioner, even though previous sanction was not obtained the shifting was on the basis of orders issued by the respondent and that the authority has re-engaged the petitioner to duty and that the KSRTC had accepted and approved the shifting of service. However, question remains as to whether the said period can be reckoned as qualifying service for regularisation. This is a matter which need to be considered by the 2[nd] respondent. Learned counsel for the petitioner also raises a contention that he is entitled to be regularised on the basis that he had continued in service even after 21.12.2011 and now completed 10 years. But there are no orders in force permitting regularisation of provisional employees who had WP(C). 28076/2012 5 completed 10 years after 21.12.2011. 4. Under the above mentioned circumstances this court is of the opinion that the question regarding eligibility for regularisation of the petitioner need reconsideration at the hands of the 2[nd] respondent , on the basis of the observations contained hereinabove. 5. Hence this writ petition is disposed of by quashing Ext.P7 order to the extent it applies to the petitioner. The 2[nd] respondent is directed to take a fresh decision with respect to the claim of the petitioner for regularisation, in view of the observations hereinabove, after affording an opportunity of personal hearing to the petitioner. 6. A decision in this regard shall be taken at the earliest possible, at any rate within a period of three months from the date of receipt of a copy of this judgment. ## C.K.ABDUL REHIM, JUDGE pmn/ WP(C). 28076/2012 6 WP(C). 28076/2012 7 WP(C). 28076/2012 8