Kerala High Court
K.J.Xavier vs State Of Kerala Represented By Its
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
MONDAY, THE 12TH DAY OF NOVEMBER 2012/21ST KARTHIKA 1934
WP(C).No. 22046 of 2010 (E)
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PETITIONER(S):
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1. K.J.XAVIER, CONDUCTOR,
K.S.R.T.C., CHERTHALA DEPOT, CHERTHALA.
2. BIJU K.MENON,
CONDUCTOR, K.S.R.T.C., KOTHAMANGALAM DEPOT
KOTHAMANGALAM.
3. A.V.KURIAKOSE,
CONDUCTOR, K.S.R.T.C., KOTHAMANGALAM DEPOT
KOTHAMANGALAM.
4. V.U.JOY, CONDUCTOR, K.S.R.T.C.,
MUVATTUPUZHA DEPOT, MUVATTUPUZHA.
5. GEORGE ANTONY,
CONDUCTOR, K.S.R.T.C., THODUPUZHA DEPOT
THODUPUZHA.
6. M.V.SUPRAN,
CONDUCTOR, K.S.R.T.C., ALUVA DEPOT
ALUVA.
7. K.K.ASOK KUMAR,
CONDUCTOR, K.S.R.T.C. PERUMBAVOOR DEPOT
PERUMBAVOOR.
8. LALU V.,
CONDUCTOR, K.S.R.T.C. KAYAMKULAM DEPOT, KAYAMKULAM.
9. M.G.SANANDAN,
CONDUCTOR, K.S.R.T.C. N.PARUR DEPOT, N.PARUR.
10. G.SIVAN,
CONDUCTOR, K.S.R.T.C. KAYAMKULAM DEPOT, KAYAMKULAM.
11. JOSEPH SIMANDNI,
CONDUCTOR, K.S.R.T.C. ERNAKULAM DEPOT, ERNAKULAM.
12. KENNY JOSEPH,
CONDUCTOR, K.S.R.T.C. PONKUNNAM DEPOT, PONKUNNAM.
13. D.RAJAN,
CONDUCTOR, K.S.R.T.C. ERATTUPETTA DEPOT
ERATTUPETTA.
WP(C).No. 22046 of 2010 (E) 2
14. V.N.JAYAPRAKASH,
CONDUCTOR, K.S.R.T.C. KOTTAYAM DEPOT, KOTTAYAM.
15. N.A.MURALEEDHARAN,
CONDUCTOR, K.S.R.T.C. VAIKOM DEPOT, VAIKOM.
16. BABU C.T.,
CONDUCTOR, K.S.R.T.C. THRISSUR DEPOT, THRISSUR.
17. K.M.PRAKASAN,
CONDUCTOR, K.S.R.T.C. THRISSUR DEPOT, THRISSUR.
18. K.B.SIVARAJAN,
CONDUCTOR, K.S.R.T.C. CHALAKKUDY DEPOT, CHALAKKUDY.
19. N.V.HARIDASAN,
CONDUCTOR, K.S.R.T.C. PUDUKKAD DEPOT, PUDUKKAD.
20. M.N.SURESH,
CONDUCTOR, K.S.R.T.C. MALA DEPOT, MALA.
21. C.T.DENNY,
CONDUCTOR, K.S.R.T.C. MALA DEPOT, MALA.
22. M.SUBRAHMANIAN,
CONDUCTOR, K.S.R.T.C. PONNANI DEPOT, PONNANI.
23. V.P.GOPALAKRISHNAN,
CONDUCTOR, K.S.R.T.C. ERNAKULAM DEPOT, ERNAKULAM.
24. JUSTIN VALSALAN,
CONDUCTOR, K.S.R.T.C. MALAPPURAM DEPOT, MALAPPURAM.
25. K.P.SURENDRAN,
CONDUCTOR, K.S.R.T.C. VATAKARA DEPOT, VATAKARA.
26. P.V.RAJAGOPALAN,
CONDUCTOR, K.S.R.T.C. KODAKARA DEPOT, KODAKARA.
27. P.R.JAYACHANDRAN,
CONDUCTOR, K.S.R.T.C. MANANTHAVADY DEPOT
MANANTHAVADY.
28. P.T.LOHIDAKSHAN,
CONDUCTOR, K.S.R.T.C. VARKALA DEPOT, VARKALA.
29. J.VENULAL,
CONDUCTOR, K.S.R.T.C. ALAPPUZHA DEPOT, ALAPPUZHA.
30. M.IFTHIKHARUDEEN,
CONDUCTOR, K.S.R.T.C. ATTINGAL DEPOT, ATTINGAL.
31. K.C.GOPINATHAN,
CONDUCTOR, K.S.R.T.C. PUNALOOR DEPOT, PUNALOOR.
WP(C).No. 22046 of 2010 (E) 3
32. Y.DANIEL,
CONDUCTOR, K.S.R.T.C. CHENGANNUR DEPOT, CHENGANNUR.
33. N.K.KRISHNAN,
CONDUCTOR, K.S.R.T.C. PAYYANNUR DEPOT, PAYYANNUR.
34. A.KAMALAKUMAR,
CONDUCTOR, K.S.R.T.C. CHENGANUNUR DEPOT
CHENGANNUR.
35. N.K.VIJAYAN,
CONDUCTOR, K.S.R.T.C. CHERTHALA DEPOT, CHERTHALA.
36. K.VENU,
CONDUCTOR, K.S.R.T.C. THALASSERY DEPOT, THALASSERY.
37. O.SURESHKUMAR,
CONDUCTOR, K.S.R.T.C. KOZHIKODE DEPOT, KOZHIKODE.
38. E.V.VIJAYAN,
CONDUCTOR, K.S.R.T.C. PAYYANNUR DEPOT, PAYYANNUR.
39. SUKU P.,
CONDUCTOR, K.S.R.T.C. PAYYANNUR DEPOT, PAYYANNUR.
40. P.JAYACHANDRAN,
CONDUCTOR, K.S.R.T.C. THAMARASSERY DEPOT
THAMARASSERY.
41. SASI T.K.,
CONDUCTOR, K.S.R.T.C. KOZHIKODE DEPOT, KOZHIKODE.
42. M.JAYADEV,
CONDUCTOR, K.S.R.T.C. SULTHAN BATTERY DEPOT
SULTHAN BATTERY.
43. RAJAN PA,
CONDUCTOR, K.S.R.T.C. KODUNGALLUR DEPOT
KODUNGALLUR.
44. P.T.SURENDRAN,
CONDUCTOR, K.S.R.T.C. MUVATTUPUZHA DEPOT
MUVATTUPUZHA.
45. R.RAMA VARMA,
CONDUCTOR, K.S.R.T.C. CHENGANNUR DEPOT, CHENGANNUR.
46. C.GIRISH,
CONDUCTOR, K.S.R.T.C. KOZHIKODE DEPOT, KOZHIKODE.
47. K.C.SASI,
CONDUCTOR, K.S.R.T.C. KOZHIKODE DEPOT, KOZHIKODE.
48. K.BABU,
CONDUCTOR, K.S.R.T.C. KOZHIKODE DEPOT, KOZHIKODE.
WP(C).No. 22046 of 2010 (E) 4
49. N.P.SURESHKUMAR, CONDUCTOR,
KSRTC PALAKKAD DEPOT, PALAKKAD.
50. K.K.MOHANDAS, CONDUCTOR,
KSRTC PALAKKAD DEPOT, PALAKKAD.
51. P.SIVAKUMAR, CONDUCTOR,
KSRTC PALAKKAD DEPOT, PALAKKAD.
52. K.ARAVINDAKSHAN, CONDUCTOR,
KSRTC PALAKKAD DEPOT, PALAKKAD.
53. R.RAJAN CONDUCTOR, KSRTC PALAKKAD DEPOT,
PALAKKAD.
54. A.JOHN CONDUCTOR, KSRTC POOVAR
DEPOT, POOVAR.
55. K.CHANDRASEKAHARAN, CONDUCTOR,
KSRTC POOVAR DEPOT, POOVAR.
56. K.SASIKUMAR, CONDUCTOR,
KSRTC POOVAR DEPOT, POOVAR.
57. M.T.MANIKANDAN CONDUCTOR,
KSRTC CHITTOOR DEPOT, PALAKKAD.
58. V.ANILKUMAR CONDUCTOR,
KSRTC PERINTALMANNA DEPOT, MALAPPURAM DISTRICT.
59. D.THILAKARAJ CONDUCTOR,
KSRTC KILIMANOOR DEPOT, KOLIMANOOR.
60. B. ANIL, CONDUCTOR, KSRTC CHATHANNOOR
DEPOT, CHATHANNOOR.
61. P.SURESHKUMAR, CONDUCTOR,
KSRTC PUNALOOR DEPOT, PUNALOOR.
62. A.SHAJAHAN, CONDUCTOR,
KSRTC PUNALOOR DEPOT, PUNALOOR.
63. P.PATRIC, CONDUCTOR, KSRTC KOLLAM
DEPOT, KOLLAM.
64. N.ATHMAJAN, CONDUCTOR,
KSRTC KILIMANOOR DEPOT, KILIMANOOR.
65. B.R.SAM CONDUCTOR, KSRTC
CHADAYAMANGLAM DEPOT, CHADAYAMANGALAM.
66. A.SULAIMAN CONDUCTOR,
KSRTC VENJARAMMOOD DEPOT, VENJARAMMOOD.
67. V.SREEVALSAN CONDUCTOR,
KSRTC ATTINGAL DEPOT, ATTINGAL.
WP(C).No. 22046 of 2010 (E) 5
68. K.K.HAKKIM CONDUCTOR, KSRTC
VENJARAMMOOD DEPOT, VENJARAMMOOD.
69. S.JAYACHANDRAN, CONDUCTOR,
KSRTC PANDALAM DEPOT, PANDALAM.
70. JOSEPH STANLEY KUMAR, CONDUCTOR,
KSRTC THIRUVANANTHAPURAM CITY DEPOT
THIRUVANANTHAPURAM.
71. M.R.SUGATHAN, CONDUCTOR,
KSRTC PARASSALA DEPOT, PARASSALA.
72. J.S.SHAHURDEEN, CONDUCTOR,
KSRTC VELLARADA DEPOT, VELLARADA.
73. MADHU.V., CONDUCTOR, KSRTC KATTAKKADA
DEPOT, KATTAKKADA.
74. BIJU.O.D., CONDUCTOR,
KSRTC KATTAKKADA DEPOT, KATTAKKADA.
75. GOPI.M.G., CONDUCTOR,
KSRTC VITHURA DEPOT, VITHURA.
76. SANILKUMAR.T., CONDUCTOR,
KSRTC VIKAS BHAVAN DEPOT, THIRUVANANTHAPURAM.
77. K.ARSHAD HUSSAIN CONDUCTOR,
KSRTC PONNANI DEPOT, PONNANI.
78. K.SURESH, CONDUCTOR,
KSRTC POOVAR DEPOT, POOVAR.
79. C.K.JAYACHANDRAN CONDUCTOR,
KSRTC NEYYATTINKARA DEPOT, NEYYATTINKARA.
80. M.HAREENDRANATH CONDUCTOR,
KSRTC NEYYATTINKARA DEPOT, NEYYATTINKARA.
81. C.RAJAN CONDUCTOR,
KSRTC NEYYATTINKARA DEPOT, NEYYATTINKARA.
82. A.S.SAROJAKUMAR, CONDUCTOR, CITY DEPOT,
THIRUVANANTHAPURAM.
83. M.R.RAJAN, CONDUCTOR,
KSRTC THIRUVALLA DEPOT, THIRUVALLA.
84. T.S.HARIKUMAR, CONDUCTOR,
KSRTC THIRUVALLA DEPOT, THIRUVALLA.
85. S.ASHIRKUNJU, CONDUCTOR,
KSRTC ALAPPUZHA DEPOT, ALAPPUZHA.
WP(C).No. 22046 of 2010 (E) 6
86. T.K.JAYASAGAR, CONDUCTOR,
KSRTC ALAPPUZHA DEPOT, ALAPPUZHA.
87. M.D.REJIKUMAR, CONDUCTOR, KSRTC
CHANGANASSERY DEPOT, CHANGANASSERY.
88. P.C.SURENDRAN, CONDUCTOR, KSRTC
PATHANAMTHITTA DEPOT, PATHANAMTHITTA.
89. SEBASTIAN P.JOSEPH,
CONDUCTOR, KSRTC MALLAPPALLY DEPOT, MALLAPPALLY.
*ADDL.R7 AND R8 IMPLEADED:
ADDL.R7:K.J.ALPHONSE, CONDUCTOR CHERTHALA DEPOT,CHERTHALA
ADDL:R8:D.RAMACHANDRAN, CONDUCTOR, PUNALUR DEPORT, PUNALUR.
(*ADDL.R7 AND R8 ARE IMPLEADED AS PER ORDER DATED 3.2.11 IN IA.1797/11)
BY ADV. SRI.S.RAMESH BABU
RESPONDENT(S):
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1. STATE OF KERALA REPRESENTED BY ITS
PRINCIPAL SECRETARY, TRANSPORT DEPARTMENT
GOVERNMENT SECRETARIAT, TRIVANDRUM.
2. KERALA STATE ROAD TRANSPORT
CORPORATION REPRESENTED BY ITS, MANAGING DIRECTOR
TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM.
3. PUSHPARAJAN T.N., CONDUCTOR,
KSRTC THODUPUZHA DEPOT, THODUPUZHA.
4. VINOY E.I., CONDUCTOR, KSRTC
THIRUVALLA DEPOT, THIRUVALLA.
5. SUMA P.S., CONDUCTOR,
KSRTC THIRUVANANTHAPURAM DEPOT, THIRUVANANTHAPURAM.
R3 BY ADV. SRI.JOY C. PAUL
R3 BY ADV. SRI,.BOBY GEORGE
R-4 BY ADV. SRI.ANANDARAJAN.N
R2 BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR,SC, KSRTC
R2 BY ADV. SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC
R1 BY ADV. GOVERNMENT PLEADER SRI.V.VIJULAL
R7,8 BY ADV. SRI.N.KRISHNA PRASAD
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MNS
WP(C).No. 22046 of 2010 (E) 7
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: TRUE COPY OF THE RELEVANT PAGES OF THE GRADATION LIST OF
CONDUCTORS.
EXT.P2: TRUE COPY OF THE JUDGMENT DATED 23.2.1996 IN OP.NO.9757/92 AND
CONNECTED CASES.
EXT.P3: TRUE COPY OF THE JUDGMENT DATED 10.4.1996 IN CCC NO 72/96 AND
91/96.
EXT.P4: TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS DATED
24.3.2010
EXT.P5: TRUE COPY OF THE JUDGMENT DATED 9.4.2010 IN W.P(C) NO
13019/2010.
EXT.P6: TRUE COPY OF THE MEMORANDUM NO/PL9/031924/10 DATED 9.6.2010
EXT.P7:TRUE COPY OF THE LETTER DATED 10.11.2004 ISSUED BY THE MANAGING
DIRECTOR OF THE FIRST RESPONDENT.
EXT.P8:TRUE COPY OF THE LETTER DATED 30.08.2005 ISSUED BY THE MANAGING
DIRECTOR OF THE FIRST RESPONDENT.
EXT.P9:TRUE COPY OF THE LETTER DATED 10.12.2004
EXT.P10:TRUE COPY OF THE RELEVANT EXTRACT OF THE SSLC BOOK OF THE
SECOND PETITIONER
EXT.P10(a):TRUE COPY OF THE RELEVANT EXTRACT OF THE SSLC BOOK OF THE
26TH PETITIONER
EXT.P10(b):TRUE COPY OF THE RELEVANT EXTRACT OF THE SSLC BOOK OF THE
45TH PETITIONER
EXT.P10(c):TRUE COPY OF THE RELEVANT EXTRACT OF THE SSLC BOOK OF THE
80TH PETITIONER
EXT.P11:TRUE COPY OF THE ORDER DATED 28.01.2011
RESPONDENTS' EXHIBITS:
EXT.R3(a) TRUE COPY OF ADMISSION TICKET FOR THE EXAMINATION BY P.S.C
DATED 22/12/1989
EXT.R3(b) TRUE COPY OF MEMO FROM P.S.C HAVING FILE NO.S.R.III(2)
2514/89/SW DATED 31/12/1996
EXT.R3(c) TRUE COPY OF THE APPOINTMENT ORDER DATED 10.02.1997
//TRUE COPY//
P A TO JUDGE
WP(C).No. 22046 of 2010 (E) 8
C.K. ABDUL REHIM, J.
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W.P.(c) No. 22046 OF 2010
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DATED THIS THE 12th DAY OF NOVEMBER, 2012
J U D G M E N T
The petitioners are Reserve Conductors in the 2nd respondent Corporation. They are challenging Ext.P6 and similar other memos issued by which their claim for rectifying the anomaly in the seniority position in Ext.P1 draft gradation list was rejected. Petitioners are candidates included in the rank list of Reserve Conductors published by the Public Service Commission (PSC), on 18-05-1992. The petitioners were temporarily appointed on 27-04-2000 and thereafter regularised in service during the year 2007. Claim of the petitioners is that they are eligible to be treated as regularly appointed conductors from the date of expiry of the rank list. On the basis of Exts.P2 and P3 judgments 1724 vacancies were directed to be filled up from the said rank list. The petitioners are claiming seniority over those persons appointed between 1996-2007 W.P.(c) No.22046/2010 -2- under Dying-in-Harness scheme, and above persons regularised since 2001 and those persons who are special recruitees and Employment Exchange hands appointed during the said periods. Exhibit P2 is the judgment in a batch of cases filed by candidates included in the rank list dated 18-05-1992. In the said judgment KSRTC was directed to replace service of provisional and empanelled conductors with candidates included in the rank list. The PSC was directed to advice candidates in accordance with Rule 14 to 17 of the Kerala State and Subordinate Service Rules (KS & SSR). Exhibit P3 judgment arose out of a Contempt of Court case filed alleging non-implementation of Ext.P2 judgment. In Ext.P3 this court recorded the statement made by the 2nd respondent that there exist 1724 vacancies in the cadre of Reserve Conductors. Hence PSC was directed to advice 1724 candidates out of the rank list. The KSRTC was directed to appoint the candidates and to report 'Non-Joining Duty' vacancies before expiry of the list on 17-05-1996. A further direction was issued that if there W.P.(c) No.22046/2010 -3- is any necessity to engage provisional conductors after filling up the existing vacancies, such engagement should made out of the rank list dated 18-05-1992. The petitioners were thus appointed on provisional basis on 27-04-2000, in view of the directions contained in Ext.P3. Subsequently they were regularised in service of KSRTC on the basis of the approval granted by the State Government vide G.O (MS) No.40/2007/Tran dated 15-07-2007, subject to concurrence of Public Service Commission. It was specified in the said Government Order that seniority of candidates so appointed will be from the date of the order.
2. Contention of the petitioners is that KSRTC had failed in filling up the 1724 vacancies as directed in Ext.P3 judgment. According to the petitioners only 1665 vacancies were filled up, and 59 vacancies remained vacant. Petitioners claim that if all the 1724 vacancies would have been filled up, they would have got regular appointment at that time itself. On the said basis the petitioners claim seniority with effect from the date of expiry of the PSC list W.P.(c) No.22046/2010 -4- i.e., with effect from 17-05-1996. When Ext.P1 draft gradation list was published, the petitioners have approached the 2nd respondent seeking rectification of the anomaly in fixing the seniority position. But the request was rejected as evidenced from Ext.P6, stating the reason that the date of original advice of the petitioners is on 15-10-2007 when they were approved for regularisation and as such their seniority in the cadre can be reckoned only from that date in accordance with Rule 27 of the KS & SSR.
3. The KSRTC in their counter affidavit contended that rank list published on 18-05-1992 contained 3299 candidates in the main list and 1634 candidates in the supplementary list. Candidates included in the main list were appointed into regular service according to PSC advise dated 03-04-1996. The petitioners who were engaged as empanelled conductors on 27-04-2000 were only included in the supplementary list and they were not advised by PSC. Regular appointment of the petitioners were made only on the basis of the Government order cited W.P.(c) No.22046/2010 -5- above, issued with approval of PSC and the date of the said Government order is treated as the date of original advise of the petitioners, on the basis of Rule 27 of KS & SSR. As such candidates who entered in the service of the KSRTC prior to such date are seniors and the seniority now fixed through Ext.P1 is correct.
4. On behalf of the 1st respondent State, a separate counter affidavit is filed on identical terms. It is mentioned therein that pursuant to Ext.P3 judgment PSC had advised 2474 candidates in all, against the reported vacancies of 1724. The KSRTC issued appointment orders to all of them and reported 'Non-Joining Duty' vacancies to the PSC. But PSC has not issued any further advise list after issuing advice of 170 candidates, on 05-11-1996. It is conceded that all the vacancies of reserve conductors which arose during 1996 could not be filled up from the advise lists furnished. But, the contention of the petitioners is that they would have come within 59 persons ought to have been appointed from the list by virtue of Ext.P3 judgment, is stoutly denied. W.P.(c) No.22046/2010 -6- It is stated that more than 1359 candidates included in the rank list in question remained unadvised and even if the PSC would have issued advise against all 'Non-Joining Duty' vacancies, still the petitioners would have remained unadvised since their positions were very low in the rank list. Therefore Ext.P3 judgment does not confer any right on the petitioners to claim seniority as per Rule 27 (c) of KS & SSR, is the contention.
5. Respondents 3 to 8 were impleaded as representatives of those groups of conductors whose seniority will be affected if the writ petition is allowed. Publication was effected under the proviso to Rule 51 (2) of the Kerala High Court Rules. Only the 3rd respondent had filed counter affidavit contesting the writ petition. According to the 3rd respondent his date of appointment is in the year 1996 and his seniority will not be affected in any manner.
6. Sri. S. Ramesh Babu, learned counsel for the petitioners contended that the respondents are not W.P.(c) No.22046/2010 -7- disputing the fact that 1724 vacancies were not filled up in compliance with Ext.P3 judgment. He placed reliance on Ext.P7 letter issued by the Managing Director of the KSRTC to the Government, wherein it is admitted that KSRTC could not fill up 1724 vacancies as directed in Ext.P3. It is conceded that there are more than 300 'NJD' vacancies remained to be filled up. According to the petitioners, the stand taken by KSRTC that the petitioners were regularised only after getting re-arranged list from PSC on the basis of reservation principles, is not true and correct. According to them even at the time of making temporary appointments from among candidates included in the rank list, the appointments were made only on observing the reservation Rules. It is pointed out that the above fact has been admitted in Ext.P8 by the Managing Director, wherein it is stated that the provisional conductors were recruited from the unadvised list, after observing Community reservation Rules. The said fact has been admitted further in Ext.P9. Referring Rule 27 of Part II of KS & SSR, Sri.Ramesh Babu W.P.(c) No.22046/2010 -8- contended that, eventhough the normal Rule is to consider seniority as per the date of advice by PSC, it cannot be pressed into service when a mistake is committed. When a person has been wrongly overlooked and consequently his advice happened to be made only subsequently, it will be highly unjust to give seniority only with effect from the date of such advice. When a mistake is to be corrected, the effective date of advise also should have to be modified, is the contention. Learned counsel had placed reliance on a judgment of this court in OP No.17257/2000 dated 13-03-2002. It is noticed that, this court had followed the decision of the hon'ble Supreme Court in Dalalah Gojah V. State of Kerala (1998 (1) KLT 567) (SC) in support of the above proposition. On the basis of such contentions it is claimed that the petitioners are entitled to get their seniority re-fixed above the persons who were regularised in service after 17-05-1996.
7. While evaluating the rival contentions, it is to be noted that, it is an admitted fact that appointment of the W.P.(c) No.22046/2010 -9- petitioners on 27-04-2000 was only on temporary basis. They came into regular service of KSRTC only with effect from 15-10-2007. Rules 27 (a) of KS & SSR provides that seniority of persons in service should be determined by the date of the order of his first appointment in such service. But in the case of employees appointed on the basis of advise issued by PSC, seniority should be determined by the date of their first effective advice, in view of Rule 27 (c) of KS & SSR. The proviso to Rule 27 (a) exclude temporary appointments made under Rule 9 (a). Therefore the date of temporary appointment of the petitioners, on 27-04-2000, cannot be considered for the purpose of seniority.
8. Admittedly no appointment was made against the 1724 vacancies as directed in Ext.P3 judgment. But question remains as to whether the petitioners can claim seniority on the basis of an allegation that there occurred a mistake on the part of KSRTC in filling up of 59 more vacancies, as directed in Ext.P3. Stand taken by the respondents is that since the petitioners were regularly W.P.(c) No.22046/2010 -10- appointed on the basis of approval of PSC as mentioned in the Government order dated 15-10-2007, their seniority can be reckoned only from that date, going by Rule 27 (c). Fact remains is that the petitioners have accepted the temporary appointments during the year 2000, and they have not raised any claim for regular appointment during that time. Even at the time they were regularised in the year 2007 no dispute was raised with respect to seniority. There is no materials produced to show that even if all the NJD vacancies were filled up during that time itself, the petitioners would have got regular appointment on the basis of their seniority in the rank list, on following rules of communal reservation. Therefore the claim for seniority with effect from the date of expiry of the rank list cannot be accepted, at any rate.
9. But question remains is as to whether the seniority of the petitioners can be considered as on the date of the Government order. It is evident that regularisation of the petitioners were not made on the basis of any advice W.P.(c) No.22046/2010 -11- issued by the PSC. Merely because PSC had granted approval for the proposal for regularisation, it cannot be considered as the date of effective advice of the petitioners. Therefore Rule 27 (c) cannot be applied for fixing seniority of the petitioners. While regularising the petitioners service, retrospective effect from their date of first appointment in the cadre on temporary basis has not been reckoned. Considering the admitted situation that there was failure on the part of KSRTC in not filling up all the vacancies as directed in Ext.P3 judgment, there is a possibility that chances of the petitioners to get regular appointment on earlier dates might have been affected. It is pertinent to note that, inspite of impleading representatives of affected groups and inspite of publication made under Rule 51 (1), nobody has chosen to contest that claim raised by the petitioners, except respondent No.4. Fact remains that the petitioners were provisionally appointed only on the basis of their inclusion in the rank list dated 18-05-1992. The provisional appointments were given only on the basis of W.P.(c) No.22046/2010 -12- directions issued by this court in Ext.P3 judgment. It is an undisputed fact that in cases where temporary appointments were made otherwise, regularisation in service was effected subsequently reckoning their initial date of appointment for the purpose of seniority. Therefore I am of the view that notional fixation of seniority with effect from their date of temporary appointment in the cadre in question will only be justified, subject to rider that the petitioners will not be eligible for any arrears of pay and allowance on the basis of such re-fixation of seniority. The re-fixation fill affect only in the matter of promotions and in reckoning qualifying service for the purpose of pension.
6. Therefore the writ petition is partly allowed and 2nd respondent is directed to finalise Ext.P1 provisional list by assigning due seniority to the petitioners in the cadre of reserve conductors with effect from 27-04-2000, subject to the condition as mentioned above.
Sd/-
C.K. ABDUL REHIM, JUDGE.
AMG True copy P.A to Judge