Kerala High Court
P.S.Babu vs The Kerala State Road Transport ...
Author: C.K. Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
FRIDAY,THE 11TH DAY OF OCTOBER 2013/19TH ASWINA, 1935
WP(C).No. 14311 of 2013 (L)
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PETITIONER(S):
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1. P.S.BABU
ASSISTANT DEPOT ENGINEER
KERALA STATE ROAD TRANSPORT CORPORATION
MALA DEPOT.
2. M.S. RAVEENDRAN
ASSISTANT DEPOT ENGINEER
KERALA STATE ROAD TRANSPORT CORPORATION
CHITTOOR DEPOT.
3. G. MANOHARAN
ASSISTANT DEPOT ENGINEER
KERALA STATE ROAD TRANSPORT CORPORATION
VIZHINJAM DEPOT.
BY ADV. SRI.ANANDARAJAN N
RESPONDENT(S) :
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1. THE KERALA STATE ROAD TRANSPORT CORPORATION
REPRESENTED BY ITS MANAGING DIRECTOR
TRANSPORT BHAVAN, FORT P.O.,
THIRUVANANTHAPURAM -695 023.
2. THE OFFICER ON SPECIAL DUTY & SECRETARY (WORKS MANAGER)
KERALA STATE ROAD TRANSPORT CORPORATION
TRANSPORT BHAVAN, FORT P.O.
THIRUVANANTHAPURAM -695 023.
3. THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT
TRANSPORT DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM -695 001
4. THE KERALA PUBLIC SERVICE COMMISSION
REPRESENTED BY ITS SECRETARY
PATTOM PALACE P.O.,
THIRUVANANTHAPURAM -695 004.
...2/-
WP(C).No. 14311 of 2013 (L) -2-
*ADDL. R5 TO R7 IMPLEADED
*5. SUBHASH K.S.,
AGED 37 YEARS, S/O.K.C.SOMAN,
ASSISTANT DEPOT ENGINEER
KERALA STATE ROAD TRANSPORT CORPORATION,
PONKUNNAM, KOTTAYAM DISTRICT,
RESIDING AT HARINANDHANAM, PALA.P.O.,
KOTTAYAM DISTRICT.
*6. ABOOBACKER P.,
AGED 39 YEARS, S/O.KUTTY HASSAN
ASSISTANT DEPOT ENGINEER
KERALA STATE ROAD TRANSPORT CORPORATION
REGIONAL WORKSHOP, ALUVA, RESIDING AT PUTHALATH HOUSE
KALAMASSERY NORTH P.O., ERNAKULAM DISTRICT.
*7. MARTIN P.P.,
AGED 37 YEARS, S/O.P.T.POULOSE
ASSISTANT DEPOT ENGINEER
KERALA STATE ROAD TRANSPORT CORPORATION,
ANGAMALLY,RESIDING AT PARAYIL HOUSE,
ANGAMALY SOUTH P.O., ERNAKULAM DISTRICT.
*ARE IMPLEADED AS PER ORDER DATED 11.07.2013 IN IA.9269/2013.
R1 & R2 BY ADV. SRI.BABU JOSEPH KURUVATHAZHA, SC, KSRTC
R3 BY GOVT. PLEADER SRI. K.C. VINCENT
R4 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC
ADDL.R5 TO R7 BY ADVS. SRI.K.ABDUL JAWAD
SRI.MATHEW AKUZHALANADAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-10-2013,
ALONG WITH WPC. 17609/2013 & WPC. 23226/2013, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
Mn
...3/-
WP(C).No. 14311 of 2013 (L)
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APPENDIX
PETITIONERS' EXHIBITS :
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EXT.P1 - TRUE COPY OF RELEVANT PAGES (FRONT PAGE, PAGES 1, 2, 8, 12
AND 13) OF MEMORANDUM OF SETTLEMENT DATED 28-12-1990.
EXT.P2 - TRUE COPY OF ORDER DATED 28-3-1995 IN CMP.NO.7840/95 IN O.P.
NO.4340/95 OF THE HON'BLE HIGH COURT OF KERALA.
EXT.P3 - TRUE COPY OF JUDGMENT DATED 8-10-2010 IN WPC.NO.7677/2008 OF
THE HON'BLE HIGH COURT OF KERALA.
EXT.P4 - TRUE COPY OF THE G.O.(MS)NO.63/2012/TRAN DATED 16-10-2012 OF
THE 3RD RESPONDENT.
EXT.P5 - TRUE COPY OF KERALA STATE ROAD TRANSPORT CORPORATION
(QUALIFICATION AND METHOD OF APPOINTMENT OF HIGHER
DIVISION OFFICERS) REGULATIONS, 2012.
EXT.P6 - TRUE COPY OF THE LETTER PIO NO.0182/2013 DATED 01-04-2013 OF
THE STATE PUBLIC INFORMATION OFFICER & ADMINISTRATIVE
OFFICER, K.S.R.T.C.
EXT.P7 - TRUE COPY OF REPRESENTATION DATED 25-4-2013 FILED BY THE
PETITIONER BEFORE THE RESPONDENT.
RESPONDENT(S)' EXHIBITS : NIL
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//TRUE COPY//
P.S. TO JUDGE
Mn
C.K. ABDUL REHIM, J.
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W.P.(C). Nos. 14311, 17609 &
23226 of 2013
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Dated this the 11th day of October, 2013
JUDGMENT
Since the issue involved is common in all these cases they were considered together and disposed of through this common judgment. WP(C) No.14311/2013 is treated as the leading case and reference to exhibits contained in this judgment is in the same order as they were produced in the said case.
2. The petitioners are persons now working as 'Assistant Depot Engineers' in the Kerela State Road Transport Corporation (KSRTC). They are promotees from the post of 'Chargeman', who became successful in the selection process. Challenge is against Ext.P5 Regulation formulated by the KSRTC, which was approved by the Government through Ext.P4, to the extent it prescribes the qualification and method of appointment to the post of 'Depot Engineer'. As per Ext.P5 the method of appointment to the post of 'Depot Engineer' is by way of promotion from the category of 'Assistant Depot Engineer' in the ratio of 1:1 from among direct recruitees and promotees. But in Ext.P5 a note is added as follows; W.P.(C). Nos. 14311 of 2013 & cont. cases -2- "An Assistant Depot Engineer who is a promotee will not be eligible for promotion to the category of Depot Engineer over a directly recruited Assistant Depot Engineer having longer service in the category of Assistant Depot Engineer unless the latter is otherwise declared ineligible for promotion."
Grievance of the petitioner is against insertion of the note as extracted above.
3. Admittedly, the method of appointment to the post of 'Assistant Depot Engineer' is from two distinct streams. One is direct recruitment through PSC and the other is by way of promotion from the cadre of 'Chargeman' on the basis of a selection process. In Ext.P5 it is prescribed that 1:1 ratio should be maintained for promotion to the post of 'Depot Engineer' among the direct recruitees and promotees in the cadre of 'Assistant Depot Engineers'. Contention is that the note incorporated will nullify the effect of the ratio prescribed. Grievance of the petitioners is that, the note appended will curtail chances of promotion of the promotees in the category of Assistant Depot Engineer. According to the petitioners, prescription of the impugned condition will result in violation of their fundamental rights to get due promotion in the service. Petitioners contended that, prescription of such a condition is W.P.(C). Nos. 14311 of 2013 & cont. cases -3- totally irrational, unreasonable and arbitrary. It is pointed out that when the impugned Note restricts promotion of a promotee in the post of Assistant Depot Engineer overlooking seniority of a direct recruitee, there is no condition stipulated to restrain overlooking of seniority of a promotee by a direct recruitee. Further contention is that the procedure hitherto followed for appointment to the post of 'Depot Engineer' is by following the ratio 1:1, which was introduced as early as in the year 1971 on the basis of report of a one man commission known as 'Kumara Pillai Commission'. It is also pointed out that adoption of the ratio was agreed upon in the bipartite settlement arrived between the KSRTC and its workers in the year 1990, copy of which is produced as Ext.P1. Since it is a condition agreed upon and incorporated in the settlement which is having statutory force under the Industrial Disputes Act, the same cannot be violated and changed unilaterally, unless it is modified through any subsequent settlement, is the contention.
4. In the counter affidavit filed on behalf of KSRTC it is contended that, Ext.P5 Regulation was framed in exercise of the statutory power vested on KSRTC and hence the Regulation W.P.(C). Nos. 14311 of 2013 & cont. cases -4- is in the nature of legislation which cannot be challenged unless the legislative competence is questioned. Further contention is that such subordinate legislation cannot be challenged unless violation of fundamental rights is proved. Various decisions of the hon'ble Supreme Court were cited in the counter affidavit in support of the above proposition.
5. Party respondents impleaded in WP(C)No. 14311/2013 are the representatives of direct recruitees. It is contended in their counter affidavit that the Assistant Depot Engineers appointed through the different streams constitute distinct class in themselves. Hence the classification within the same cadre for the purpose of granting further promotion would be legal and will not violate constitutional principles. It is contended that the ratio prescribed under Ext.P1 bipartite agreement was never acted upon and the said provision is unworkable. The employer had abandoned such scheme and the new Regulation was framed as per Ext.P5, in exercise of power conferred under Section 45 of the Road Transport Corporation Act, 1950, after obtaining prior sanction from the Government. The Regulation was validly promulgated as a subordinate legislation. It is pointed out that the promotees W.P.(C). Nos. 14311 of 2013 & cont. cases -5- have entered service of KSRTC only as 'Work Assistant'. Qualification prescribed for the said post was either Industrial Training Certificate (ITC) or two years Workshop experience. They have reached the post of 'Assistant Depot Engineer' after getting various promotions in the posts of Mechanic, Mechanic- I, Mechanic-II and Chargeman. But on the other hand, the direct recruitees are persons possessing the qualification of either B.Tech Degree or Diploma. In Ext.P5 Regulation qualification of B.Tech is made compulsory for direct recruitment to the post of 'Assistant Depot Engineer'. The direct recruitees have to complete two years probation and should pass Manual of Office Procedure test and Accounts test for Executive Officers (Paper 1 and 2) for getting promotion to the higher post. It is pointed out that, normally a direct recruitee will take 8 to 9 years for getting promotion, whereas the promotees will complete their probation within a period of one year and they need not pass any test for getting promotion to the post of Depot Engineer. Therefore, if the ratio of 1:1 is implemented disregarding the seniority, so many promotees who are junior in the cadre will get a march over. According to the respondents, it is for preventing such situation that the W.P.(C). Nos. 14311 of 2013 & cont. cases -6- impugned Note is introduced. It is contended that the Note does not have the effect of undoing the main provision as alleged but it only ensures that the right of the promotees is protected when they acquire seniority in par with the direct recruitees. Hence the Note is intended to balance the situation and it is not in any manner diluting the ratio principle, is the contention.
6. Ext.P5 Regulation is framed in exercise of power vested under Section 45 of the Road Transport Corporation Act is not disputed. Hence the competence of KSRTC in framing the Regulation cannot be questioned. While considering the contention based on the bipartite settlement, this court is of the opinion that, such a settlement will not take away the statutory powers vested on KSRTC to frame the Regulations governing method of appointment and conditions of service of its employees. The bipartite settlement was arrived only at a time when there was no Regulations in existence. Therefore the bipartite settlement cannot have any overriding effect on the Regulations. If the petitioners are raising any claim based on provision in the Industrial Disputes Act on the question of enforceability of the bipartite settlement, it is for them to work W.P.(C). Nos. 14311 of 2013 & cont. cases -7- out their remedies before the appropriate forum prescribed under the Industrial Disputes Act.
7. Argument that the impugned Note violates fundamental rights of the petitioners cannot be accepted, because it will not result in any discrimination among the equally placed. There is no right accrued for promotion merely by virtue of service in the post of 'Assistant Depot Engineer', in violation of the Regulations prescribing the method of appointment and qualification. Therefore the contention that the impugned note is violative of fundamental rights or it infringes rights of promotion accrued on the petitioners, cannot be sustained.
8. Question remains as to whether the impugned Note is totally unreasonable or arbitrary, which can be put to judicial scrutiny and review. It is to be noted that, introduction of the impugned Note is not an administrative action. But it is introduced in exercise of the power of subordinate legislation. Therefore the scope for judicial review to examine its reasonableness or rationale, is extremely limited. It is pointed out by learned Standing Counsel for KSRTC that, it is with an intention to protect seniority of the direct recruitees who are W.P.(C). Nos. 14311 of 2013 & cont. cases -8- more qualified and efficient that such a condition was incorporated. According to him, the post of 'Depot Engineer' need more qualified hands to discharge the duties in a more efficient manner. Since the direct recruitees are either B.Tech holders or Diploma holders, the Corporation is giving preference for promotion of such class. The impugned condition is intended only to protect seniority of person possessing such higher qualifications. Hence it is contended that there is proper rationale and nexus in incorporating such a condition.
9. Learned counsel appearing for the petitioners have drawn attention to various legal precedents. The hon'ble Supreme Court in State of Maharashtra and another vs. Sanjay Thakre and others (1995 Supplementary (2) SCC
407) held that, quota fixed among direct recruitees and promotees even if laid down by executive instructions cannot be deviated by the Government. The State, having made the rules, should implement them in letter and spirit. In MSD Patil, Asst. Conservator of Forests, Solarpur vs. State of Maharashtra (JT 1996 (10) SC 334) it is held that as and when direct recruitment has been made, the direct recruitees W.P.(C). Nos. 14311 of 2013 & cont. cases -9- are entitled for protection of their seniority only as per the ratio and only to the seniority determined to the extent as per rules within the respective quota. It is contended on behalf of the petitioners that the impugned condition will render the ratio principle redundant, ineffective or nugatory or otiose. Reliance is placed in this regard on the decision of the hon'ble Supreme Court reported in 1992 Supp (1) SCC 304 also.
10. Much reliance was placed on a decision of this court in Girish Kumar vs. State of Kerala (1995 (1) KLT 756). It is a case where the method of appointment prescribed with respect to Divisional Inspectors of Weights and Measures, was challenged. The method of appointment prescribed was to fill up 50% posts by direct recruitment and balance 50% by promotion/transfer from approved probationers in the category of Technical Assistants/Upper Division Clerks. Note attached to the relevant rule prescribed that the ratio between Technical Assistant and Upper Division Clerk shall be 1:6. It further provides that in the absence of qualified persons for promotion/transfer the vacancies should be filled up by direct recruitment. On the facts of the case sufficient number of Technical Assistants were not available but Upper Division W.P.(C). Nos. 14311 of 2013 & cont. cases -10- Clerks were available for promotion. The petitioners therein contended that in view of non availability of Technical Assistants the post should be made available for direct recruitment. This court refused to accept such contention and held that it is only in the absence of Technical Assistants as well as Upper Division Clerks the seats should be filled up by direct recruitees. The learned Judge had only interpreted the note incorporated prescribing the method of appointment. Since it is categorically prescribed that 50% is the quota for direct recruitment, this court observed that the ratio should not be disturbed merely because one among the category eligible for promotion is not available. In such case 50% quota for promottee should be filled up from other category, is the dictum laid. I am of the considered opinion that the facts of Girish Kumar's case (cited supra) cannot be equated with the present situation. Here intention of rule makers is specific to the extent of protecting seniority of direct recruitees, while implementing the ratio principle. Such a condition is incorporated with a specific object of preventing overlooking seniority of the direct recruittees by application of ratio principle.
W.P.(C). Nos. 14311 of 2013 & cont. cases -11-
11. Learned counsel appearing for the party respondents have cited a Division Bench decision of this court in Pankajakshy and others vs. George Mathew & others (1987 (2) KLT 723). It is held that, Rule made under a statute by an authority delegated with powers can be challenged only if it is ultra vires or if it is opposed to other plenary laws. In order to ascertain such question, it should be ascertained whether it contravene expressly or impliedly any of the provisions of the statute or whether it is unreasonable or manifestly arbitrary, unjust or partial. In the case at hand the impugned condition cannot be held as manifestly unreasonable or arbitrary in view of the findings arrived as above.
12. Learned counsel for the petitioner had also argued another proposition that, once certain officials come into a particular category or cadre then they cannot be treated differently and should be given equal opportunity in the matter of promotion or selection to a selection grade or higher post. When promotion is made by selection on the basis of merit- cum-seniority, every one of them should be provided with equal opportunity. He relies on a decision of this court in Balakrishnan vs. Comptroller & Auditor General of India W.P.(C). Nos. 14311 of 2013 & cont. cases -12- & others (1976 KLT 401) in support of the above proposition. By virtue of Ext.P5 Regulation it is evident that the avenue of promotion has been made to those who are in the cadre of Assistant Depot Engineer, whether they have reached such post by direct recruitment or through promotion. It is evident that 1:1 ratio is prescribed only to ensure that both the groups get chances of promotion to the post of Depot Engineer. But at the same time prescription of such ratio is restrained by way of a rider imposed for protecting seniority of direct recruitees in the cadre of Assistant Depot Engineer. This court cannot find any fault in incorporating such a rider.
13. For the reasons mentioned above I do not find any legally sustainable ground existing to set aside imposition of the impugned condition introduced by way of the Note. In the result, these writ petitions fail and they are accordingly dismissed.
Sd/-
C.K.ABDUL REHIM, JUDGE /True copy/ P. A. to Judge pmn/Pn