Shibu Kumar D. De 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 WEDNESDAY, THE 9TH DAY OF OCTOBER 2013/17TH ASWINA, 1935 WP(C).No. 4235 of 2013 (D) --------------------------- PETITIONER: -------------------------- SHIBU KUMAR D. DEPUTY LAW OFFICER KERALA STATE ROAD TRANSPORT CORPORATION TRANSPORT BHAVAN, FORT THIRUVANANTHAPURAM - 695 023 BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENTS : ---------------------------- 1. KERALA STATE ROAD TRANSPORT CORPORATION FORT, THIRUVANANTHAPURAM-695 023 REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR 2. SMT. V. LEELA, LAW OFFICER KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT THIRUVANANTHAPURAM-695 023 (DEPUTY SECRETARY, LAW DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001) 3. STATE OF KERALA - REPRESENTED BY THE SECRETARY TO GOVERNMENT DEPARTMENT OF TRNSPORT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001 R1 BY ADV. SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC R3 BY SR.GOVERNMENT PLEADER SRI.K.C.VINCENT THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 4235 of 2013 (D) APPENDIX ## PETITIONER(S) EXHIBITS : EXHIBIT-P1 - TRUE COPY OF THE MEMORANDUM NO.PL1/017775/2005 DATED 29-1-2007 EXHIBIT-P2 - TRUE COPY OF THE JUDGMENT IN WPC. NO.15920/2007 DATED 17-8-2009 EXHIBIT-P3 - TRUE COPY OF THE JUDGMENT IN WA NO.90/2010 DATED 28-6-2010 EXHIBIT-P4 - TRUE COPY OF THE RP NO.292/2011 DATED 7-6-2011 EXHIBIT-P5 - TRUE COPY OF THE JUDGMENT IN WPC 14688/2010 DATED 10-8-2010 EXHIBIT-P6 - TRUE COPY OF THE ORDER NO.401/GL2/2011/RTC DATED 12-5-2011 EXHIBIT-P7 - TRUE COPY OF THE SUBMISSION DATED 20-6-2011 GIVEN BY THE PETITIONER EXHIBIT-P8 - TRUE COPY OF THE ORDER NO.261/GL2/2009/RTC DATED 7-10-2011 EXHIBIT-P9 - TRUE COPY OF THE GO.(RT)NO.44/2013/TRAN DATED 1-2-2013 EXHIBIT-P9 - TRUE COPY OF THE ORGANISATIONAL CHART AS ON 31-03-1990 EXHIBIT-P10 - TRUE COPY OF THE ORGANISATIONAL CHART AS ON 31.03.1998 EXHIBIT-P11 - TRUE COPY OF G.O.(Rt) NO.167/2010/TRAN.DATED 29-4-2010 RESPONDENTS' EXHIBITS : EXHIBIT R1(a) : TRUE COPY OF THE LETTER NO.1637/A3/2012/TRAN. DATED 09.7.2012 ISSUED BY THE GOVERNMENT EXHIBIT R1(b) : TRUE COPY OF THE RELEVANT PROVISIONS OF THE NOTIFICATION ISSUED BY THE KERALA STATE ROAD TRANSPORT CORPORATION. EXHIBIT R1(c) : TRUE COPY OF THE RELEVANT PAGE OF THE NORMS OF SELECTION OF HIGHER DIVISION OFFICERS OF THE KERALA STATE ROAD TRANSPORT CORPORATION, PERTAINING TO THE SELECTION OF LAW OFFICER EXHIBIT R1(d) : TRUE COPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS, BEARING NO.V.L.C.1-023988/12 ISSUED BY THE CORPORATION TO THE PETITIONER EXHIBIT R1(e) : TRUE COPY OF THE JUDGMENT DATED 30.10.2012 IN W.P.NO.3606/2011 OF THIS HON'BLE COURT /TRUE COPY/ P.A TO JUDGE AV ## **C.K. ABDUL REHIM, J. ------------------------------------** W.P.(C).No. 4235 of 2013 **-----------------------------------** Dated this the 9[th] day of October, 2013 ## **J U D G M E N T** The petitioner is at present working as Deputy Law Officer in the first respondent Corporation (hereinafter referred to as the “Corporation”). He is having qualification of Post Graduate Degree in Law (LLM). While working in the post of Conductor in the Corporation, the petitioner was appointed as Legal Assistant on the basis of selection conducted. Ext.P1 is the order of appointment of the petitioner as Legal Assistant. The appointment was challenged in a writ petition filed by a candidate who was not selected. One of the main contention was that, employees of the Corporation in the non-ministerial category are not entitled for selection to the post of Legal Assistant. In Ext.P2 judgment the said challenge was repelled. But this court ordered that, appointment of the selected candidates would remain provisional, awaiting concurrence from the Public Service Commission with respect to amendment of the Regulations, to the extent of inclusion of non-ministerial employees in the feeder category. This Court directed that, if concurrence of the PSC is not obtained within one year, the selection would stand cancelled. Ext.P2 judgment was challenged in various writ appeals filed by selected candidates W.P.(C).No. 4235 of 2013 2 including the petitioner, as well as by the Corporation. In Ext.P3 common judgment the Division Bench found that, findings of the learned Single Judge that resolution passed by the Corporation in the year 1979 is the Regulation for appointment, is totally erroneous. It is held that such a resolution cannot be considered as a Regulation for appointment. On the other hand, Regulation was framed only in the year 2009 and it has got approval of the Government. The method of appointment to the post of 'Legal Assistant' prescribed under the said Regulation is by way of transfer among qualified employees in KSRTC and by way of direct recruitment through PSC. The Division Bench found that, discriminating similarly placed persons working in non-ministerial staff and ministerial staff in the matter of appointment to the post of Legal Assistant will be illegal. Referring to the Regulations framed in 2009 with the approval of the Government, it was observed that, decision if any taken by the Corporation in 1979 to recruit Legal Assistants only from ministerial staff was already given a go by in the year 2009, when the Board had decided to recruit Legal Assistants from all qualified employees. It was also found that the Notification issued in 2006, pursuant to which the selection was conducted specifically stipulated condition that the candidate 3 W.P.(C).No. 4235 of 2013 should be a member in the active service of KSRTC with a law degree. The Division Bench found that there is no merit in the challenge raised by the defeated candidates after being participated in the selection process on the basis of the Notification. Therefore Ext.P2 judgment was set aside allowing the appeals filed by the selected candidates and the Corporation. 2. Review petitions were filed against Ext.P3 judgment contending that the Regulations (framed in the year 2009) is only at draft stage. But it is found that the Regulations were already approved by the PSC and is awaiting clearance from the Government. Finding that the writ appeals were not allowed on the basis of the Regulations, but based on the modified decision taken by the Board in the year 1979, the Review Petitions were dismissed. 3. While continuing in the post of Legal Assistant, the petitioner along with another person had approached this Court, when their request for promotion to the post of Deputy Law Officer was not considered. In Ext.P5 judgment this Court found that, insistence in Ext.P2 judgment to obtain concurrence from PSC, is no longer required in the light of Ext.P3 judgment. Hence it was declared that appointment of the petitioner will W.P.(C).No. 4235 of 2013 4 have to be treated as regular. Therefore this Court directed the Corporation to consider the request for promotion and to take an appropriate decision within a time frame. Consequent to the said direction the Corporation had issued Ext.P6 promoting the petitioner and others provisionally as Deputy Law Officers, subject to final outcome of the Review Petitions which were pending against Ext.P3 judgment. It is mentioned in Ext.P6 that the promotees will be on probation for a period of one year within a continues period of two years, and should exercise option in terms of Rule 28A of Part I, KSR. 4. It is averred in the writ petition that, despite Ext.P6 order of promotion and completion of probation prescribed therein, the respondents have not declared the probation, stating the reason that concurrence from PSC is not obtained. At the same time the Corporation had issued Regulations prescribing the method of appointment to various posts in the law branch, as per Ext.P8, dated 07.10.2011. As per Ext.P8, persons working in the post of Deputy Law Officer, who had completed probation, is entitled for promotion to the post of Law Officer. But without declaring probation of the petitioner in the post of Deputy Law Officer and without promoting him to the post of Law Officer, the Corporation had appointed the 2[nd] W.P.(C).No. 4235 of 2013 5 respondent herein on deputation from Law Department of the State Government, through Ext.P9. The petitioner is challenging Ext.P9 in this Writ Petition. Inter alia he is seeking a declaration that he is entitled to be considered for promotion to the post of Law Officer in terms of Ext.P8. Direction is also sought for to promote the petitioner as Law Officer on the basis that he had completed probation in terms of Ext.P6. 5. Stand taken by the Corporation in their counter affidavit is that, Ext.P8 regulations has not been notified in the Gazette as required under Section 45(1) of the Road Transport Corporation Act, 1950 and therefore it has not become enforcible. Hence it is contended that no claim or right originates from Ext.P8 in favour of the petitioner to get promoted to the post of Law Officer. Incidentally, the Corporation has also adopted a contention that the decision of the Board to select Legal Assistant from internal candidates has not received approval from PSC. It is further contended that, regularisation of service of the petitioner cannot be made in view of Ext.P2 judgment. The promotion granted to the petitioner and others as Deputy Law Officers was without consulting PSC. Therefore, the contention raised seems to be that, the appointment of the petitioner as Legal Assistant as W.P.(C).No. 4235 of 2013 6 well as the promotion given to the post of Deputy Law Officer were not regular. It is further pointed out that the Government in Ext.R1(a) had clarified that, declaration of probation can be made only after regularising the promotion. It is also pointed out in the counter affidavit that a disciplinary action initiated against the petitioner is pending and therefore declaration of probation can be considered only after finalisation of such proceedings. 6. Further contention of the Corporation is that, as per the Regulations existing as approved under Section 45 of the Road Transport Corporation Act, 1950, the post of Law Officer and the post of Chief Law Officer are selection posts and the method of appointment is from among employees of the ministerial branch. Hence the petitioner is not entitled to claim the post of Law Officer. The contention goes to the extent that, the selection of petitioner as Legal Assistant was made without noticing the Regulation prescribing qualifications and method of appointment and therefore the petitioner cannot claim promotion to the post of Law Officer. According to the Corporation, selection made on work arrangement basis do not entitle the petitioner to claim promotion to the post of Law Officer. In a nutshell, the contention is that, the petitioner is 7 W.P.(C).No. 4235 of 2013 not entitled to seek promotion to the post of Law Officer because his appointment as Legal Assistant and promotion as Deputy Law Officer were made without referring to the Regulations. All such contentions of the Corporation were stoutly refuted by the petitioner through a detailed reply affidavit filed. 7. Issue mooted for decision is mainly regarding sustainability of Ext.P9, through which the 2[nd] respondent was appointed on deputation. Sustainability of the deputation will depend upon the eligibility of the petitioner for promotion to the post of Law Officer, at the relevant time. Incidentally question regarding right of the petitioner to get his probation declared in the post of Deputy Law Officer, also arises for consideration. The Corporation cannot be permitted to content that the appointment of the petitioner as Legal Assistant was not regular, in view of the concluded and binding judgments. Findings contained in Ext.P2 judgment that the appointment cannot be regularised unless concurrence is obtained from PSC, stands reversed in Ext.P3 judgment which is binding on the Corporation, especially when the writ appeal filed by the Corporation was also disposed though the said common judgment. In Ext.P3 the Division Bench in unequivocal terms W.P.(C).No. 4235 of 2013 8 observed that, appointment of the petitioner is on the basis of decision taken by the Corporation in 2009 and on the basis of Notification published inviting applications. It was also delcared that no concurrence was required from PSC, for the recruitment made as Legal Assistant, because it was not made on the basis of any Regulation, and only on the basis of the decision taken by the Board. In Ext.P3, this Court upheld selection of the petitioner and others, based on the Notification issued. The review petition was also dismissed holding that the appointment was made not on the basis of any Regulation but on the basis of decision of the Corporation, adopted in modification of its earlier decision of the year 1979. Since Exts.P3 and P4 judgments had attained finality, the Corporation cannot now contend that the appointment of the petitioner as Legal Assistant was irregular for want of concurrence from PSC. Further, in Ext.P5 judgment this Court observed that the petitioners claim for promotion to the post of Deputy Law Officer need be considered in the light of Ext.P3, because the Division Bench had observed that concurrence of PSC is no longer required. It is specifically declared in Ext.P5 that appointment of the petitioner will have to be treated as regular. The said judgment is also binding on the Corporation. W.P.(C).No. 4235 of 2013 9 Therefore the Corporation is totally estopped from taking any contention that the appointment was irregular in any manner. That being the position, the promotion given to the petitioner by virtue of Ext.P6 assumes relevance. In Ext.P6 order it is mentioned that the promotion will be provisional subject to final outcome of the Review Petitions pending against Ext.P3. But it is evident from Ext.P4 that those Review Petitions were dismissed. Therefore, the stand taken by the Corporation that probation of the petitioner cannot be declared for want of concurrence from PSC, deserves no merit. 8. Admittedly the petitioner had completed one year period in the post of Deputy Law Officer. Learned counsel for the petitioner had placed reliance on the decision of this Court in _**N. Shamsul Hunda and Another v. State of Kerala and others [2007(2) KHC 185].**_ It is held therein that on completion of the period of probation, if the appointing authority is not passing any order extending the probation or confirming the appointment of the probationer, the inference to be drawn is that the employee who was allowed to continue in the post has to be confirmed by way of implication. It is also held therein that, charge memo issued after completion of period of probation cannot be taken as a ground to withhold W.P.(C).No. 4235 of 2013 10 declaration of probation when the maximum period of probation was completed prior to the disciplinary action. In view of the circumstances prevailing as above, I am of the considered opinion that non-declaration of probation of the petitioner in the post of Deputy Law Officer cannot be sustained and direction need to be issued for taking a decision within a time frame. 9. Question remains as to whether the petitioner can claim promotion to the post of Law Officer as a matter of right. Stand now adopted by the Corporation is that Ext.P8 Regulation has not been notified and has not assumed characteristics of a Regulation framed under Section 45. If that be so, the Corporation is not entitled to make appointment of any person as Law Officer by adopting any of the methods prescribed under Ext.P8. In such a situation challenge against Ext.P9 assumes importance. It is settled law that the method of appointment through deputation can be resorted only when there are no candidates available for recruitment to the post, following the Rules or Regulations. If stand taken by the Corporation that there exists no Regulations enforcible under law, the appointment made to the post of Law Officer through deputation cannot be sustained. On the other hand, if the stand taken by the Corporation is that the deputation is made W.P.(C).No. 4235 of 2013 11 on the basis of Ext.P8 Regulation which is yet to be notified, then the Corporation was at an obligation to consider eligibility of the petitioner and other candidates available in the service, for being promoted to the post of Law Officer. The second respondent has not chosen to enter appearance or to contest the case, despite service of notice from this Court. In view of the observations contained in the foregoing paragraphs, I am of the considered opinion that Ext.P9 order of appointment by way of deputation cannot be sustained. It is for the 1[st] respondent Corporation to decide as to whether any person need be appointed to the post of Law Officer. If the Corporation is of the opinion that the post of Law Officer to be filled up, it should follow either Ext.P8 Regulation or any specific resolution adopted with respect to method of appointment and qualification. If by virtue of any such decision the petitioner or any other employee of the Corporation is coming within the zone of consideration, selection should be made only after considering eligibility and claim of all such persons. 10.Under the above mentioned circumstances the writ petition is allowed quashing Ext.P9. Consequential decision should be taken with respect to repatriation of the 2[nd] respondent. The first respondent Corporation is directed to pass W.P.(C).No. 4235 of 2013 12 appropriate orders declaring probation of the petitioner in the post of Deputy Law Officer, within a period of one month from the date of receipt of a copy of this judgment. 11. If the Corporation intents to make appointment to the post of Law Officer, appropriate notification shall be issued following any prescribed method of appointment. Appointment through deputation can be resorted only if the Corporation finds that no eligible candidate is available in the service of the Corporation for recruitment or for promotion. The petitioner is given liberty to claim promotion to the post of Law Officer, depending on the qualification and method prescribed in such notification. Sd/- **C.K. ABDUL REHIM, JUDGE** AV