Kerala High Court
K.Vinod Kumar vs K.J.Xavier on 12 November, 2012
Author: Manjula Chellur
Bench: Manjula Chellur, K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
TUESDAY, THE 26TH DAY OF MARCH 2013/5TH CHAITHRA 1935
WA.No. 407 of 2013 () IN WP(C).22046/2010
-------------------------------------------
AGAINST THE ORDER/JUDGMENT IN WP(C).22046/2010 of HIGH COURT OF KERALA
DATED 12-11-2012
APPELLANT(S):
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1. K.VINOD KUMAR
CONDUCTOR GRADE 1
KERALA STATE ROAD TRANSPORT CORPORATION
NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT.
2. N.K.RANJITH
CONDUCTOR GRADE 1
KERALA STATE ROAD TRANSPORT CORPORATION
NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT.
3. C.BIJU ASSARY
CONDUCTOR GRADE 1
KERALA STATE ROAD TRANSPORT CORPORATION
KOTTARAKKARA.
4. M.GOPAKUMAR
CONDUCTOR GRADE I1
KERALA STATE ROAD TRANSPORT CORPORATION
NEYYATTINKARA.
5. C.D.JOSE
CONDUCTOR GRADE 1
KERALA STATE ROAD TRANSPORT CORPORATION, CHERTHALA.
6. M.A.JAYAKUMAR
CONDUCTOR GRADE 1
KERALA STATE ROAD TRANSPORT CORPORATION
KOTTARAKKARA.
7. B.S.GOPAKUMAR
CONDUCTOR GRADE 1
KERALA STATE ROAD TRANSPORT CORPORATION
NEYYATTINKARA.
8. M.S.EMMANUEL
CONDUCTOR GRADE 1
KERALA STATE ROAD TRANSPORT CORPORATION, CHERTHALA.
WA.407/13 2
9. R.UDAYAKUMAR
CONDUCTOR GRADE 1
KERALA STATE ROAD TRANSPORT CORPORATION
KOTTARAKKARA.
10. B.R.CHRISTIN SARASAM
CONDUCTOR GRADE 1
KERALA STATE ROAD TRANSPORT CORPORATION
NEYYATTINKARA.
11. T.K.SUMESH
CONDUCTOR GRADE 1
KERALA STATE ROAD TRANSPORT CORPORATION
KOTTARAKKARA.
12. T.M.SHIJU
CONDUCTOR GRADE 1
KERALA STATE ROAD TRANSPORT CORPORATION, CHERTHALA.
13. R.P.BIJU
CONDUCTOR GRADE 1
KERALA STATE ROAD TRANSPORT CORPORATION, KATTAKKADA.
14. T.R.SHYAM
CONDUCTOR GRADE 1
KERALA STATE ROAD TRANSPORT CORPORATION, CHERTHALA.
15. T.M.SHINU
CONDUCTOR GRADE 1
KERALA STATE ROAD TRANSPORT CORPORATION, CHERTHALA.
16. V.SUNILKUMAR
CONDUCTOR GRADE 1
KERALA STATE ROAD TRANSPORT CORPORATION
NEYYATTINKARA.
17. K.RAJESH
CONDUCTOR GRADE 1
KERALA STATE ROAD TRANSPORT CORPORATION, CHERTHALA.
18. MADHU.B.GOPAN
CONDUCTOR GRADE 1
KERALA STATE ROAD TRANSPORT CORPORATION, CHERTHALA.
19. R.RAJENDRAN
CONDUCTOR GRADE 1
KERALA STATE ROAD TRANSPORT CORPORATION
NEYYATTINKARA.
20. R.S.RIJU
CONDUCTOR GRADE 1
KERALA STATE ROAD TRANSPORT CORPORATION, ATTINGAL.
WA.407/13 3
21. S.G.RAJESH
CONDUCTOR GRADE 1
KERALA STATE ROAD TRANSPORT CORPORATION
NEYYATTINKARA.
22. A.SATHEESH
CONDUCTOR GRADE I1
KERALA STATE ROAD TRANSPORT CORPORATION
NEYYATTINKARA.
23. C.KRISHNAKUMAR
CONDUCTOR GRADE I1
KERALA STATE ROAD TRANSPORT CORPORATION, CHERTHALA.
24. R.RAJESH
CONDUCTOR GRADE 1
KERALA STATE ROAD TRANSPORT CORPORATION
THIRUVANANTHAPURAM CENTRAL
THIRUVANANTHAPURAM DISTRICT.
25. N.P.GOPAKUMAR
CONDUCTOR GRADE 1
KERALA STATE ROAD TRANSPORT CORPORATION
NEYYATTINKARA.
26. L.PRASANTH
CONDUCTOR GRADE 1
KERALA STATE ROAD TRANSPORT CORPORATION, KATTAKKADA.
27. R.AJITHKUMAR
CONDUCTOR GRADE 1
KERALA STATE ROAD TRANSPORT CORPORATION
NEYYATTINKARA.
28. M.S.HARILAL
CONDUCTOR GRADE 1
KERALA STATE ROAD TRANSPORT CORPORATION, KATTAKKADA.
29. T.C.RICHARD
CONDUCTOR GRADE I1
KERALA STATE ROAD TRANSPORT CORPORATION
NEYYATTINKARA.
30. SAM VINCENT
CONDUCTOR GRADE 1
KERALA STATE ROAD TRANSPORT CORPORATION, KATTAKKADA.
31. K.M.SAJEEV
CONDUCTOR GRADE I1
KERALA STATE ROAD TRANSPORT CORPORATION, KATTAKKADA.
32. S.ARUN
CONDUCTOR GRADE 1
KERALA STATE ROAD TRANSPORT CORPORATION
NEYYATTINKARA.
WA.407/13 4
33. K.J.JOBY
CONDUCTOR GRADE 1
KERALA STATE ROAD TRANSPORT CORPORATION, CHERTHALA.
34. T.CHITHANANDAN
CONDUCTOR GRADE 1
KERALA STATE ROAD TRANSPORT CORPORATION, CHERTHALA.
BY ADVS.SRI.KRB.KAIMAL (SR.)
SRI.B.UNNIKRISHNA KAIMAL
RESPONDENT(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,
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.
WA.407/13 5
13. D.RAJAN,
CONDUCTOR, K.S.R.T.C. ERATTUPETTA DEPOT, ERATTUPETTA.
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,
WA.407/13 6
CONDUCTOR, K.S.R.T.C. PUNALOOR DEPOT, PUNALOOR.
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.
WA.407/13 7
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 POOVARDEPOT, 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,
V.ANILKUMAR CONDUCTOR, KSRTC PERINTALMANNA DEPOT
MALAPPURAM DISTRICT.
59. D.THILAKARAJ CONDUCTOR,
KSRTC KILIMANOOR DEPOT, KOLIMANOOR.
60. B. ANIL, CONDUCTOR
KSRTC CHATHANNOORDEPOT, CHATHANNOOR.
61. P.SURESHKUMAR, CONDUCTOR,
KSRTC PUNALOOR DEPOT, PUNALOOR.
62. A.SHAJAHAN, CONDUCTOR,
KSRTC PUNALOOR DEPOT, PUNALOOR.
63. P.PATRIC,
CONDUCTOR, KSRTC KOLLAMDEPOT, KOLLAM.
64. N.ATHMAJAN, CONDUCTOR,
KSRTC KILIMANOOR DEPOT, KILIMANOOR.
65. B.R.SAM CONDUCTOR, KSRTC
CHADAYAMANGLAM DEPOT, CHADAYAMANGALAM.
66. A.SULAIMAN CONDUCTOR,
KSRTC VENGARAMMOOD DEPOT, VENJARAMMOOD.
67. SREEVALSAN CONDUCTOR,
WA.407/13 8
KSRTC ATTINGAL DEPOT, ATTINGAL.
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
KSRTC KATTAKKADADEPOT, KATTAKKADA.
74. BIJU.O.D., CONDUCTOR,
KSRTC KATTAKKADA DEPOT, KATTAKKADA.
75. GOPI.M.G., CONDUCTOR,
KSRTC VITHURA DEPOT, VITHURA.
76. SANILKUMAR.T., CONDUCTOR,
SANILKUMAR.T., CONDUCTOR, KSRTC VIKAS BHAVAN DEPOT
THIRUVANANTHAPURAM
77. K.ARSHAD HUSSAIN CONDUCTOR,
K.ARSHAD HUSSAIN CONDUCTOR, KSRTC PONNANI DEPOT
PONNANI.
78. K.SURESH, CONDUCTOR,
CONDUCTOR, KSRTC POOVAR DEPOT, POOVAR.
79. C.K.JAYACHANDRAN CONDUCTOR,
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.
WA.407/13 9
85. S.ASHIRKUNJU, CONDUCTOR,
KSRTC ALAPPUZHA DEPOT, ALAPPUZHA.
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.
90. STATE OF KERALA
REPRESENTED BY ITSPRINCIPAL SECRETARY
TRANSPORT DEPARTMENT, GOVERNMENT SECRETARIAT
TRIVANDRUM.
91. KERALA STATE ROAD TRANSPORT CORPORATION
REPRESENTED BY ITS, MANAGING DIRECTOR
TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM.
92. PUSHPARAJAN T.N., CONDUCTOR,
KSRTC THODUPUZHA DEPOT, THODUPUZHA.
93. VINOY E.I., CONDUCTOR, KSRTC
THIRUVALLA DEPOT, THIRUVALLA.
94. SUMA P.S., CONDUCTOR,
KSRTC THIRUVANANTHAPURAM DEPOT, THIRUVANANTHAPURAM.
95. SREEKESH B
CONDUCTOR, KSRTC PARAPPANANGADI DEPOT, PARAPPANANGADI.
96. K.J.ALPHOSE,
CONDUCTOR, CHETRTHALA DEPOT, CHERTHALA.
97. D.RAMACHANDRAN
CONDUCTOR, PUNALUR DEPOT, PUNALUR.
R1 & 23 BY ADV. SRI.N.NANDAKUMARA MENON (SR.)
R1 & 23 BY ADV. SRI.P.K.MANOJKUMAR
R1 & 23 BY ADV. SRI.N.KRISHNA PRASAD
R93 BY SRI.ANANDARAJAN.N
R90 BY SPL.GOVERNMENT PLEADER SMT.GIRIJA GOPAL
R92 BY SRI.JOY C. PAUL
BY SRI.S.RAMESH BABU (SR.)
R91 BY SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26-03-2013,
ALONG WITH WA. 475 & 531 OF 2013, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
MANJULA CHELLUR, C.J
&
K.VINOD CHANDRAN, J.
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W.A.Nos. 407, 475 & 531 of 2013
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Dated this the 26th day of March, 2013
JUDGMENT
Manjula Chellur, C.J.
W.A.Nos. 407 and 475 of 2013 are filed by third parties to the Writ Petition with leave of the Court. W.A.No.531 of 2013 is filed by the second respondent - Kerala State Road Transport Corporation (KSRTC) challenging the judgment of the learned Single Judge in W.P(C).No.22046 of 2010. The party respondents are not before us. The controversy is with regard to fixation of seniority. The writ petitioners, challenging Exhibit P6 and relevant orders issued by the Corporation, approached the learned Single Judge seeking rectification of the anomaly in the seniority position in Exhibit P1 draft gradation list.
2. It is not in dispute that the writ petitioners, who are party respondents herein, were also included in the rank list of reserve conductors way back in 1992 published by the Kerala Public Service Commission (PSC) on 18.5.1992. It is also not in dispute that the writ petitioners were later appointed as empanelled WA.407/13 & CONNECTED CASES 2 conductors on 27.4.2000 and thereafter their services came to be regularised in the year 2007 by the Government of Kerala on the recommendation of the Corporation. In the year 2009, according to the writ petitioners, they realised that their seniority is not in correct position, as the reserve conductors appointed in 2001 were placed above them. Therefore, they approached the learned Single Judge seeking the following reliefs:
"(i) Issue a writ of certiorari calling for the records leading upto Ext.P6 and similar memos issued to all the petitioners and quash the same;
(ii) To call for the records leading to the issuance of Exhibit P1 and issue a writ of certiorari quashing the same to the extent that the petitioners are placed at Serial No.4989-5132 below the persons appointed from list dated 18.9.2001, those appointed under the dying in harness scheme from 1996 to 2007, those regularized since 2001, those who were appointed through the Employment Exchange from 1996-2007 and the Special Recruitees appointed from 1996 to 2007.
(iii) Declare that the petitioners are liable to be treated as regularly appointed from out of WA.407/13 & CONNECTED CASES 3 the list dated 18.5.1992 as coming within the 1724 vacancies as per Exts.P2 and P3 judgments and to grant all consequential benefits on account of the same;
(iv) Issue a writ of mandamus commanding the 1st and 2nd respondents to treat the petitioners as having been regularly advised and appointed from out of the list dated 18.5.1992 to the 1724 vacancies covered by Ext.P2 and P3 judgments and to grant all consequential service and monetary benefits;
(v) Any other relief which this Honourable Court deems fit in the facts and circumstances of the case."
3. The claim of the writ petitioners before the learned Single Judge was mainly based on Exhibits P2 judgment and P3 order of this Court. The said litigation was one pertaining to 1724 vacancies that came to be reported by the Corporation, but there was no advice as such by PSC, therefore, Exhibit P2 judgment and directions at Exhibit P3 order came to be passed. The relevant portion of Exhibit P2 judgment is, paragraph 15 which reads as under:
WA.407/13 & CONNECTED CASES 4
"15. In the above circumstances, Corporation should do well in getting the candidates included in the ranked list advised by the Public Service Commission appointed as Reserve Conductors. Learned counsel representing the Corporation voiced an apprehension that the conductors so appointed through Public Service Commission may swindle the money collected by them as conductors and so they must be asked to furnish security, as is being received from the empanelled conductors. We have not been told about any rule of law which requires a candidate advised by the Public Cservice Commission to furnish security for the post. But, to obviate the apprehension, we direct the candidates advised by the Public Service Commission to furnish Fidelity Guarantee Insurance for Rs.3,000/- (Rupees three thousand only) or third party security.
Original petitions are disposed of as indicated herein before and we close our Judgment by quoting the following observations made by the Supreme Court in A.K.Bhatnagar v.
Union of India, (1991)1 SCC 545:-
"On more than one occasion this Court has indicated to the Union and the State Governments that once they frame rules, their WA.407/13 & CONNECTED CASES 5 action in respect of matters covered by rules should be regulated by the rules. The rules framed in exercise of powers conferred under the proviso to Article 309 of the Constitution are solemn rules having binding effect. Acting in a manner contrary to the rules does create problem and dislocation. Very often government themselves get trapped on account of their own mistakes or actions in excess of what is provided in the rules. We take serious view of these lapses and hope and trust that the government both at the centre and in the States would take note of this position and refrain from acting in a manner not contemplated by their own rules".
We also hope that the Corporation will act within the powers conferred on them by rules and Act in a legal and proper manner. All petitions filed by provisional or empanelled conductors working under the Corporation for continuance as such and for regularization in service under the Corporation are dismissed. Petitions filed by candidates who have been included in the ranked list published by the Public Service Commission are disposed of in the manner indicated earlier in this judgment.
Taking into consideration the entire facts and circumstances of this case, we direct the parties WA.407/13 & CONNECTED CASES 6 to suffer their costs in these proceedings."
4. Paragraphs 2, 3 and 4 of Exhibit P3 read as under:
"2. Learned counsel Mr.M.K.Damodaran, representing the Public Service Commission, undertook before us that 1724 will be advised for appointment to the post of Reserve Conductors within a week from today, this undertaking is recorded. Candidates who are thus advised by the Public Service Commission are directed to report before the respondent - the Managing Director of Kerala State Road Transport Corporation - for joining duty as Reserve Conductors within two weeks from the period required by the Public Service Commission to advise candidates. That takes us to 2nd May, 1996, since 1st May happens to be a public holiday. After taking into consideration the number of candidates reported for joining duty, the Managing Director will assess the vacancy that may arise on account of the non- joining duty of the advised candidates. This must be done on or before 9.5.1996. The vacancy arising out of the non-joining duty thus assessed must be reported to the Public Service Commission on or before 10.5.1996. Non-joining duty must be assessed as on 9.5.1996, because WA.407/13 & CONNECTED CASES 7 there may occur some unavoidable delay on the part of the candidates in approaching the Managing Director on account of the postal delay or some other unavoidable circumstance. If the Managing Director is convinced of the explanation given by the candidates, he must accept them as having reported within the time schedule fixed in this order. Since 10.5.1996 is well within the life-time of the ranked list, Public Service Commission should advise candidates for filling up those vacancies. This must be done even if the list expires on 17.5.1996. This we say because for advising candidates to the vacancies already reported, the expired list can be operated upon.
3. These Contempt petitions are closed in the above directions. In case the Managing Director fails to report the vacancy that arose on account of the non-joining duty of advised candidates on or before 10.5.1996, it will be open to the petitioners to approach this Court again for initiating action under the Contempt of Courts Act. Till the candidates advised by the Public Service Commission takes charge in the respective depots to which they are allotted by the Managing Director, for plying the schedules from those depots, the Depot WA.407/13 & CONNECTED CASES 8 Officers/Controlling Officers will be at liberty to engage empanelled/provisional Conductors. We make it clear that the moment the candidate advised by the Public Service Commission reports for duty, empanelled/provisional conductors must be disengaged.
4. After appointing the candidates advised by the Public Service Commission to fill up the vacancies as stated above, in case the Corporation finds any need to engage provisional Conductors, such personnel must be so engaged from the candidates included in the list prepared by the Public Service Commission. Even if that list has expired, till a new list is prepared in the interregnum the provisional vacancies should be offered to the persons already included in the list.
The Managing Director has tendered his unconditional apology for the incidents caused by him and we accept that conditional apology and close these matter."
5. According to the writ petitioners, there were totally 1724 vacancies to be filled up from the rank list of 3000 candidates published in 1992. The rank list expired on 17.5.1996. According to the writ petitioners, in spite of the directions at Exhibits P2 and WA.407/13 & CONNECTED CASES 9 P3, all the 1724 vacancies were not filled up and if only those vacancies were filled up in time, the writ petitioners would have been appointed as early as 1996 and therefore; they being the candidates from the rank list of 1992, who were empanelled as conductors in pursuance of the directions at Exhibits P2 and P3 have to be treated as seniors to the party respondents before the learned Single Judge, who are said to have been appointed subsequent to the appointment of the writ petitioners.
6. According to the Corporation as well as the party respondents, all the 1724 candidates were advised and appointed, but there were some more vacancies by 2000, therefore, the candidates from the expired rank list, who were not advised, were taken as empanelled conductors and the writ petitioners belonged to such group and they cannot claim any equity to be placed at par with the candidates, who were advised during the life of the rank list. The learned Single Judge, after referring to the contentions of both the parties, at paragraph 9 of the judgment referred to the situation in which the writ petitioners were appointed and decided the matter in favour of the writ petitioners opining that if only all the appointments were WA.407/13 & CONNECTED CASES 10 completed in time during the validity of the rank list, the writ petitioners would have gained benefit from that, therefore, having regard to the fact that they were taken as empanelled conductors much earlier to the party respondents before the learned Single Judge, they were held to be entitled to be placed above the respondents. Hence, a direction was given to refix the seniority.
7. Aggrieved by the same, though the respondents before the learned Single Judge are not before us, the third parties, who are affected with the said direction, are before us. The entire controversy revolves around the rank list prepared in 1992. Though the rank list was initially for a period of three years, it came to be extended one more year, therefore, the last date of validity of the rank list was 17.5.1996. The directions issued by this Court as per Exhibit P2 is at paragraph 15. Reading of paragraph 15 of Exhibit P2 judgment quoted above clearly indicates that the Writ Petitions filed by the provisional and empanelled conductors working under the Corporation for continuance as such and for regularisation in service under the Corporation were dismissed. The Writ Petitions filed by candidates, who have been included in the rank list published by WA.407/13 & CONNECTED CASES 11 the PSC, were disposed of as indicated in Exhibit P2 judgment. By Exhibit P2, all those provisional or empanelled conductors, who do not find a place in the rank list, did not get any benefit, but for persons who were in the rank list, certain directions were given. When these directions were not complied with, a contempt petition came to be filed and Exhibit P3 order clearly indicates what exactly was the direction issued by the Court on the submissions of the Standing Counsel for the PSC which is at paragraphs 2, 3 and 4.
8. On a reading of the above three paragraphs quoted above, the situation that prevailed as on the date of disposal of the contempt petition as per order at Exhibit P3 is clearly indicated. There were totally 1724 candidates to be advised for appointment to the post of reserve conductors before expiry of the rank list. The Public Service Commission undertook to do so. The Court also made it clear what should be done so far as other vacancies, if certain candidates do not respond to the advice given by the PSC. Meanwhile, with huge number of vacancies occurring regularly, additional vacancies also occurred in the Corporation. From the directions in the contempt petition what WA.407/13 & CONNECTED CASES 12 one should certainly understand is, the Corporation was allowed to engage provisional conductors if a need arises from the list of expired rank list till new list is prepared. Learned counsel for the party respondents before us, who were the writ petitioners, contend that only on account of the delay on the part of the PSC and the Corporation, they are put to hardship and inconvenience and there is possibility of the Corporation accommodating their own persons by continuing services of empanelled conductors taken by them not from the rank list.
9. The fact that calls for resolution is whether these writ petitioners were part of 1724 or whether they were eligible for such advice. On account of non-joining vacancies that arose they were never advised by the PSC during the validity of the rank list as directed at Exhibit P3. In the absence of the writ petitioners being appointed against an advice, their empanelment as reserve conductors four years later to the date of expiry of the rank list would not give any additional benefit to them and they cannot be treated as appointees from the rank list against a regular advice. If there was violation of directions indicated at Exhibit P3, the candidates out of 1724 would have definitely approached the WA.407/13 & CONNECTED CASES 13 Court reviving the contempt proceedings. If there were still vacancies during the validity of the rank list, those candidates, who stand at a better rank position would have approached this Court. Nothing seems to have happened till 2000. Everyone knew that the rank list expired on 17.5.1996. If the persons, who could have secured appointment within the validity period of the rank list, did not choose to approach the Court, it is entirely within their wisdom, why they took such a decision.
10. The fact remains, these writ petitioners were taken as empanelled reserve conductors not against any regular advice. On account of need, the Corporation devised its own method to take them as empanelled conductors to get the work done in the Corporation as necessity arose. If these writ petitioners were aggrieved by the status given to them as empanelled conductors though they were entitled for better status than that as regular conductors they could have questioned way back in 2000 when they were empanelled as reserve conductors. They kept quiet without raising any objection. At least in 2007, when their services came to be regularised, they could have raised the controversy with regard to their seniority. Nothing was done. If WA.407/13 & CONNECTED CASES 14 they were taken as empanelled conductors in 2000, they would not have sought for regularisation if it was a regular appointment. If they were entitled for regular appointment, they would not have accepted their position as empanelled conductors. Neither in 2000 nor in 2007, they objected the move of the Corporation. In all probability, even the regularisation of their service, as per Annexure-A must be only at their behest and on the recommendation of the Corporation having regard to the fact that they were working for the Corporation right from 2000 as empanelled conductors. The difference between a regular appointee against a proper advice from PSC and the empanelled conductor is that the services of empanelled conductors will come to an end the moment PSC advises regular candidates for appointment to the post of conductor and the same is implemented.
11. As already stated above, the indulgence is shown by the State having regard to the fact that they were working for the Corporation from 2000 onwards. However, no one has challenged this regularisation of their services in 2007 till date. Be that as it may, the fact remains, they are not the candidates from a list, WA.407/13 & CONNECTED CASES 15 which was valid when they were taken as empanelled conductors. The list had expired four years prior to their empanelment as conductors. No right flows from the rank list to them merely because they were part of the rank list which expired in 1996. No benefit that could have flown from the rank list to a candidate who was entitled for advice and appointment would enure to the petitioners before the learned Single Judge. They are the candidates from the expired rank list and they were taken as empanelled conductors only in pursuance of the directions of the Court at Exhibit P3. That alone would not give them any extended benefit treating them as regular appointees. If they could have been treated as regular appointees, their services need not have been regularised in 2007.
12. In that view of the matter, the claim of the appellants that they were appointed against regular vacancies in 2001 by a regular process of selection through PSC and they have to be considered as seniors to the persons, whose services came to be regularised only in 2007 has to be upheld. In other words, the writ petitioners could not gain any benefit either from Exhibit P2 or from Exhibit P3 as the terms of their appointment as empanelled WA.407/13 & CONNECTED CASES 16 conductors was quite different from the regular appointments. Though they were taken as empanelled conductors in 2000, as their appointment was not in accordance with the regular selection process, they will not stand to gain any benefit from the directions at Exhibits P2 and P3.
13. In that view of the matter, the learned Single Judge was not justified in opining that the writ petitioners could have gained benefit of directions if only the parties concerned, i.e., the Corporation and PSC acted in time. It is also relevant to mention that none of the writ petitioners were part of candidates coming within 1724 in the rank list. No details are placed before us what exactly was the rank position of the writ petitioners in the rank list which expired on 17.5.1996.
14. Not having been advised against the list of 1992, till the expiry of the list, having accepted provisional appointment on daily wages in 2000, without demur and admittedly having been regularised only in 2007, as per Annexure-A and not having raised their claim in the present Writ Petition; at any earlier point of time, it is too late in the day to claim that they were entitled to be advised from the list of 1992.
WA.407/13 & CONNECTED CASES 17
In the light of the above discussion and reasoning, we are of the opinion, the Writ Appeals deserve to be allowed. Accordingly, the Writ Appeals are allowed setting aside the judgment of the learned Single Judge in W.P(C).No.22046 of 2010 dated 12.11.2012.
MANJULA CHELLUR, CHIEF JUSTICE K.VINOD CHANDRAN, JUDGE vgs27.3