Vinod Kumar V v. Kerala State Public Service Commission & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE B.P.RAY** ## **FRIDAY, THE 29TH DAY OF JUNE 2012/8TH ASHADHA 1934** ## **WP(C).No. 31001 of 2011 (A) ---------------------------** ## **PETITIONER(S): -------------** **VINOD KUMAR V,AGED 41, S/O.VISHWAMBARAN, USHUS, THANKONAM, VARKALA NOW WORKING AS WELFARE, OFFICER K.S.R.T.C.REGIONAL WORKSHOP, KOZHIKODE ZONE.** **BY ADVS.SRI.K.B.PRADEEP SMT.N.G.SINDHU** **RESPONDENT(S):** **--------------** **1. KERALA STATE PUBLIC SERVICE COMMISSION O/O.KERALA STATE PUBLIC SERVICE COMMISSION THIRUVANANTHAPURAM, REP.BY ITS SECRETARY PIN-695004.** **2. KERALA STATE ROAD TRANSPORT CORPORATION FORT, THIRUVANANTHAPURAM REP.CHAIRMAN & MANAGING DIRECTOR, PIN-695001** ***ADDITIONAL R3 IMPLEADED.** **3. LOVELY K. STANLEY, PADIPURA PUTHEN VEEDU, VENKULAM, NELLIMOODU P.O., THIRUVANANTHAPURAM-695524** *** R3 IS IMPLEADED AS PER ORDER DATED 6-12-2011 IN I.A. NO.19536/2011.** **BY ADV. SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC BY ADV. SRI.V.G.ARUN BY ADV. SRI.T.R.HARIKUMAR BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-06-2012,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SU/-** **WP(C).No. 31001 of 2011 (A)** ## **JUDGMENT** **None appears. Dismissed for default.** **Sd/B.P.RAY, JUDGE /true copy/ P.A. To Judge** **su/-** ## **B.P. RAY, J.** **- - - - - - - - - - - - - - - - - W.P.(C) Nos. 31001 of 2011** **- - - - - - - - - - - - - - - - Dated this the 8[th] day of November, 2012.** ## **JUDGMENT** Heard both sides. ## 2. The case of the petitioner is as follows: The petitioner joined the service of the 1[st] respondent on 30.06.2002 as Reserve Conductor. On successful completion of 240 days duty, the petitioner has been re-designated as Conductor Gr-II. The 1[st] respondent invited applications to the post of Welfare Officer by transfer from qualified employees. The petitioner was recruited by the 1[st] respondent as Welfare Officer on 12.05.2011. He has been issued with Ext.P2 show cause notice stating that since the petitioner does not satisfy the required seven years of regular service, the advise memo issued to him shall stand cancelled. Thereafter, he was issued with Ext.P5 order cancelling the advice. The contention of the petitioner is that the said 240 days duty period irrespective of the length of the spell is accounted as one year service by the 2[nd] respondent for all intents and purposes. The further contention of the petitioner is that the same should be counted towards the W.P.(C) No. 31001/2011 -:Page numbers:- length of service as has been held by the Full Bench of this Court in 2009(3) KHC 891 (FB) – **DTO, KSRTC v. S. KUNCHAN,** the relevant portions of which reads as follows:- “12. **Issue No.1:** It is undisputed that the petitioner was selected by the Commission for the post of Driver in the Corporation, on a time scale of pay. It is also undisputed that by Ext.P4 dated 22.4.1989 the petitioner was actually advised for appointment as a Reserve Driver on a time scale of pay. Obviously, the petitioner, who was included in the rank list prepared and drawn up by the Commission, would have been advised by the Commission to the post in question only if there were adequate vacancies in the said post. The advice given by the Commission would have been pursuant to the reporting of vacancies by the Corporation. This would, therefore, legitimately lead to an inference that there were vacancies in the cadre post, borne on a time scale of pay when the Commission issued an advice memo as per Ext.P4. It is, in spite of the same, that by Ext.P5 the Corporation proceeded to issue an order of appointment Ext.P5 dated 30.5.1989 appointing the petitioner as Reserve Driver on daily wages at the rate of Rs.126/-, the lowest Grade of Reserve Driver, plus admissible dearness allowance. While continuing in the said post without break, the Corporation proceeded to issue Ext.P6 dated 7.6.1990 declaring the petitioner, as having been absorbed in service as Driver Grade II with effect from 21.3.1990. Was it justifiable on the part of the Corporation to appoint the petitioner as an employee on daily wages, in spite of the fact that, he had already been included in the rank list prepared by the Commission for the post in question and the Commission had proceeded to advice him to the said post? Was the said action taken by the Corporation otherwise legal? If it is not legal, then going by the admitted fact that the petitioner had actually rendered service in the cadre post to which he was advised by the Commission on a regular basis, then what is the manner in which such service will have to be treated for the purpose of pension? 15. Thus, if a person is entitled to be treated as a regular employee, then the management of an establishment would be guilty of unfair labour practice, if nevertheless he is treated as a casual or badli employee. That is to say, if a person was entitled to be treated as a regular employee by the Corporation, he being advised in that regard by the Commission after having undergone selection by due process, then it would be illegal on the part of the Corporation to proceed to appoint him as a daily wage employee or a casual employee in a post, against a vacancy which was otherwise available and required to be filled up by an employee advised by the Commission in that regard. Such action on the part of the Corporation would amount to an unfair labour practice, within the meaning of S. 25(T) of the I.D. Act. Any such unfair labour practice on the part of the Corporation would tantamount to an offence under S. 25(U) of the I.D. Act. W.P.(C) No. 31001/2011 -:Page numbers:- 17. The fact that the writ petitioner accepted Ext.P5 order of appointment which appointed him as Reserve Driver on daily wages, will not really improve the case of the Corporation. As we have held supra, the order of appointment is issued by the Corporation in favour of a person, who had already been advised by the Commission to the post in question as evidenced by Ext.P5. The Commission had conducted a selection pursuant to a requisition made by the appointing authority. The Commission would have also issued an advice memo only against the vacancies which have been reported by the appointing authority. Therefore, the advice memo issued by the Commission would operate only in relation to an existing vacancy in the post in question. In spite of the factual situation being so, the Corporation had chosen to appoint the writ petitioner as a Reserve Driver on daily wages. The fact that the writ petitioner had joined service and proceeded to serve the Corporation, would not, therefore, lead to a case where the employee would later be precluded or estopped from claiming that the service rendered by him, pursuant to Ext.P5, classified as service on daily wages by the Corporation should, nevertheless, be treated as regular service for all intents and purposes. Apart from the conclusion that we have arrived at as above, that the action taken by the Corporation in appointing a person who has been advised by the Commission, as an employee on daily wages, would amount to unfair labour practice, within the meaning of the I.D. Act, it will also have to be noted that there was clearly unequal bargaining between the Corporation on one hand and an employee, like the writ petitioner, eagerly awaiting an order of appointment from the Corporation. He would have participated with a multitude of persons in the long drawn out process of selection to public service. After all, as could be seen from Ext.P3, the interview forming part of the selection of Reserve Driver was conducted in 1986 and the Commission had proceeded to issue an advice memo only on 22.4.1989. The selection process commenced some time in 1985. By the time, the writ petitioner had already been waiting for a period of more than three years after participating in the interview, when he received the advice memo from the Commission. It is, at that juncture, that he was served with Ext.P5 order of appointment appointing him on daily wages. It would have been inconsistent for a normal person placed in such a situation, who has been waiting in queue, while receiving the order of appointment to take exception to the Corporation proceeding to appoint him as a daily wage employee, in spite of the fact that he had already been advised by the Commission. In a much celebrated, often quoted decision in _Central Inland Water Corporation v. Brojonath Ganguly_ ((1986) 3 SCC 156), the Supreme Court, _inter alia,_ considered a case where a contract of service entered into between parties with grossly unequal bargaining power. The Court held as follows in para.89 of the judgment: “Should then our courts not advance with the times? Should they still continue to cling to outmoded concepts and outworn ideologies? Should we not adjust our thinking caps to match the fashion of the day? Should all jurisprudential development pass us by, leaving us floundering in the sloughs of 19th century theories? Should the strong be permitted to push the weak to the wall? Should W.P.(C) No. 31001/2011 -:Page numbers:- they be allowed to ride roughshod over the weak? Should the courts sit back and watch supinely while the strong trample underfoot the rights of the weak? We have a Constitution for our country. Our Judges are bound by their oath to “uphold the Constitution and the laws”. The Constitution was enacted to secure to all the citizens of this country social and economic justice. Art.14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Art.14. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustration. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today's complex world of giant corporation with their vast infra-structural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The Court must judge each case on its own facts and circumstances.” 19. Both the aforementioned decisions of the Supreme Court dealt with a case where employer had the power to resort to a provision dealing with the termination of the services of an employee, without following due process, akin to what is described in _Brojonath's_ as Henry, the VIIIth clause. But, the principle laid down in the context of gross unequal bargaining power between the employer and the employee would apply on all fours to a case like the present one, where the acceptance of an order of appointment as a daily wage employee, by a person who has already been advised by the Commission to a regular post, is sought to be put against him as a conduct dis-entitling him from claiming that the entire service rendered by him, after being advised by the W.P.(C) No. 31001/2011 -:Page numbers:- Commission is eligible to be treated as 'regular service' for all intents and purposes. 22. The Corporation is incorporated under the Road Transport Corporations Act. Undisputedly, it is an instrumentality of the State. The service in the Corporation will have to be treated as public service. Selection preceding appointment to the various posts in the Corporation is done by the Commission. When a vacancy arises, the Corporation notifies the vacancy to the Commission, which conducts a selection wherein all eligible candidates have an equal opportunity to participate and aspire for appointment. The Commission undertakes the selection when vacancies are notified and it is advisable to embark upon the processed selection against a certain number of vacancies. The Commission draws up a rank listand depending upon the number of vacancies which are reported and therefore available to be filled up, the Commission advises persons, who have been included in the list. The appointing authority is bound to act only as per the advice of the Commission. This, in broad terms, is the scheme for effecting regular appointments in the Road Transport Corporation. 23. We have already held that once the selected person is advised by the Commission and the Corporation appoints him, then whatever be the terms in the order of appointment, the appointment of such a person in the existing regular vacancy is bound to be treated as a regular appointment. It will not be open to the Corporation then to treat the service rendered by such a person as a daily rated, casual or badli service. But, would the situation be the same of an employee, who is appointed as a daily rated worker or a casual worker prior to his advice by the Commission? Can it be said, as a matter of law, that any kind of daily rated service followed by regular appointment of such a person would be eligible to be treated as part of the regular service, irrespective of whether such daily rated service or casual service was rendered by the person prior to him being selected and advised by the Commission. In our view, to obliterate the distinction between casual service rendered by a person for a period, prior to he being advised by the Commission, as part of a regular selection process, and the service rendered by such persons, after being advised by the Commission, though sought to be treated as casual service by the Corporation would be to lose sight of a marked difference between the two. Whereas, the latter category, though described as casual or daily rated service, is actually service rendered by a person, who has been found eligible by the Commission and advised for regular appointment against an existing vacancy, the former is a category where the employee concerned cannot be considered as one rendering service against an existing regular vacancy after having been found eligible by the competent selecting body, to be appointed against the said post on a regular basis. We are of the view that there has to be a definite distinction between the two, as treating two kinds of service as synonymous, would, in an oblique way, amount to giving the seal of _imprimatur_ on irregular and back door appointments in public service. In the words of the Constitution Bench of the Supreme Court in _State of_ W.P.(C) No. 31001/2011 -:Page numbers:- _Karnataka v. Umadevi_ (2006 (2) KLT SN 55 (C.No. 70) SC = (2006) 4 SCC 1), such back door appointments would always be anathema to the constitutional scheme, for effecting appointments in public service, in terms of Arts.14 and 16 of the Constitution of India. 26. Keeping the aforementioned law laid down by the Supreme Court in the background, can it be said that casual service or daily rated service by an employee, should, in all circumstances, be treated as regular service to be so reckoned for all intents and purposes? As we have held above, the nomenclature of the service rendered by a person advised by the Commission to a post forming part of the regular cadre service in the Corporation is not decisive. His service will have to be treated as regular service. This is because his entry into service, is not through the back door but by a regular legitimate process laid down in that behalf. It will not be open to the Corporation to appoint a person who has been advised by the Commission as casual employee because it suited the Corporation to do so. But, at the same time, it might even be necessary for the Corporation to appoint persons on a casual or daily wage basis. This administrative exigency is recognised by the Supreme Court in _Umadevi_ as well. Such service is treated only as casual service and the fact that the said employee was later absorbed into regular service, after being found eligible in a due process of selection, cannot transform the earlier casual service rendered by him as a regular service. To recognise such a principle would, in effect, be a regularisation of an irregular appointment, which, as the Supreme Court held in _Umadevi_ is anathema in the constitutional scheme of appointments in public service. Obviously, the direction to treat such casual service as regular service would mean that the employee concerned would be entitled to treat his entry into service as commensurate with the commencement of casual service. 27. For the reasons mentioned above, we are of the view that the principle laid down in _Idicula,_ to the extent to which directs that any kind of casual service of an employee, followed by an entry of such employee in regular service would be eligible to be treated as regular service for all intents and purposes does not lay down the correct principle. No doubt, the Bench in _Idicula_ was essentially trying to construe a term contained in the conciliation settlement between the management and the employees. But, we cannot, but take note of the fact that regular selection and appointment of persons in the Corporation has been done for the past 30 years, only on the advice of the Commission. The Corporation, an instrumentality of the State, cannot be considered as having agreed to any settlement which will not bear true allegiance to the constitutional principles that should invariably govern the affairs of an instrumentality of the State. Thus, where a term of settlement, to which an instrumentality of a State is a party, provides for treating casual service also as part of regular service for all intents and purposes, then it will only be appropriate to treat only such casual service, rendered by a person, who has already been advised by the Commission for regular appointment against the post in question as part of regular service. Any other kind of casual service would only be casual service, that cannot be considered as synonymous with regular service. We hold that the contrary W.P.(C) No. 31001/2011 -:Page numbers:- principle laid down in _Idicula_ does not lay down the correct law.” From the discussions made in the aforesaid paragraphs and the ratio laid therein, the petitioner's service as 'Reserve Conductor' is to be reckoned as regular service for all purposes. If so, it is to be held that he is qualified to be appointed as Welfare Officer. Accordingly, Ext.P5 is quashed and the writ petition is allowed. **sd/- B.P. RAY, JUDGE.** rv W.P.(C) No. 31001/2011 -:Page numbers:-