Kerala High Court
The Kerala State Road Transport ... vs P.P.Kunhi Mohammed on 14 January, 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.MOHAN M.SHANTANAGOUDAR
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
WEDNESDAY, THE 8TH DAY OF FEBRUARY 2017/19TH MAGHA, 1938
WA.No. 270 of 2013 () IN RP.1232/2012
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AGAINST THE ORDER IN RP 1232/2012 DATED 14.1.2013
AGAINST THE JUDGMENT IN WP(C) 21417/2007 DATED 13.7.2012
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APPELLANT(S)/REVIEW PEITIONER/RESPONDENT :-
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THE KERALA STATE ROAD TRANSPORT CORPORATION
THIRUVANANTHAPURAM - 23
REPRESENTED BY ITS MANAGING DIRECTOR.
BY ADV. SRI.E.K.NANDAKUMAR (SR.)
DR.THUSHARA JAMES
RESPONDENT(S)/RESPONDENT/PETITIONER :-
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P.P.KUNHI MOHAMMED, AGED 61 YEARS,
RETIRED INSPECTOR, KERALA STATE ROAD TRANSPORT
CORPORATION, S/O.CHEKKU, PALAKAPALLIYALI HOUSE,
SHARIYIL ROAD, VANDOOR P.O.,
MALAPPURAM DISTRICT, PIN - 679 328.
BY ADV. SRI.P.K.IBRAHIM
SMT.K.P.AMBIKA
SMT.A.A.SHIBI
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08-02-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A. No.270 OF 2013
APPENDIX
APPELLANT'S ANNEXURES :-
ANNEXURE-A1 :- TRUE COPY OF THE RECRUITMENT RULES OF HIGHER
DIVISION OFFICERS, INCLUDING THE POST OF ATO ADOPTED BY THE
APPELLANT.
ANNEXURE-A2 :- TRUE COPY OF THE NOTIFICATION ISSUED BY THE
APPELLANT PERTAINING TO THE REGULATIONS FOR APPOINTMENT TO THE
HIGHER DIVISION SERVICE OF 47 POSTS.
RESPONDENT'S EXHIBITS :- NIL
//TRUE COPY//
P.A. TO JUDGE
MOHAN M. SHANTANAGOUDAR, CJ
&
ANIL K. NARENDRAN, J.
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W.A. No.270 of 2013
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Dated this the 8th day of February 2017
J U D G M E N T
Mohan M. Shantanagoudar, CJ The judgment dated 13.7.2012 passed in W.P.(C) No.21417 of 2007 and the order dated 14.1.2013 passed in R.P. No.1232 of 2012 are called in question in this appeal by the Kerala State Road Transport Corporation (for short, 'the Corporation').
The respondent herein was an employee of the Corporation. He retired from service with effect from 30.6.2005. While in service, he was subjected to disciplinary enquiry, which resulted in the imposition of punishment of compulsory retirement. Questioning the said order passed by the disciplinary authority, he approached the KSRTC Appellate Tribunal, wherein, the Tribunal reduced the punishment of compulsory retirement to barring of increment for one year with cumulative effect, by its order dated 19.2.2005. It is also concluded by the Tribunal therein that the period under suspension will be treated as eligible leave. Though the said order was communicated to the Department, the respondent was readmitted to duty only on the W.A. No.270 of 2013 -: 2 :- basis of the memo of even number dated 30.5.2005. Another order came to be passed on 18.6.2005 clarifying that the period commencing from the date of compulsory retirement to the date of reinstatement is ordered to be treated as leave without allowance.
The said order was challenged by the respondent before this Court in W.P.(C) No.22749 of 2006, which came to be disposed of by the judgment dated 27.10.2006 directing the Corporation to hear the respondent and treat the period from the date of the appellate order to the date of actual reinstatement as duty.
After the disposal of the said writ petition, the respondent was once again heard by the Corporation on 15.12.2006 and an order came to be passed as per Ext.P8 dated 2.1.2007, concluding that the respondent herein is eligible for regular pay and allowance from 19.2.2005, the date of the order of the Appellate Tribunal. It was also directed therein to refix his pay and allowances and pay him arrears, if any. However, it is clarified that the respondent will not be eligible for promotion other than grade, as the Appellate Tribunal has imposed punishment on him. Questioning the said order, the respondent approached this Court in the aforesaid writ petition, which came W.A. No.270 of 2013 -: 3 :- to be disposed of by the impugned judgment. During the course of hearing, unfortunately, the appellant Corporation did not even appear or file any counter affidavit, which led to the following conclusion :-
"Accordingly, Ext.P8 order is liable to be quashed. I do so. The 1st respondent is directed to refix the pay and retirement benefits due to the petitioner as well as the question of promotion, if any, due to him as also surrender of earned leave, in accordance with the above findings and pass fresh orders as expeditiously as possible, at any rate, within a period of 2 months from the date of receipt of a copy of this judgment.
The writ petition is disposed of as above."
In the said judgment, the learned Single Judge has observed that the post to which the respondent was fighting is not a selection post, but it is a post to be filled up purely on the basis of seniority. Since this finding was against the factual aspects, the appellant filed a review petition, R.P. No.1232 of 2012, before this Court, which came to be dismissed by order dated 14.1.2013. Unfortunately, the appellant did not venture to produce any relevant records to show that the post of Assistant Transport Officer (for short, 'ATO'), for which the respondent is contesting, is a selection post and the same is not to be filled up on the basis of seniority. They did not even produce the records relating to the W.A. No.270 of 2013 -: 4 :- Resolution of the Departmental Promotion Committee (for short, 'DPC'). Though the appellant referred to about such a document in the memorandum of review petition, for the reasons best known to them, they did not produce the relevant records, which led to the erroneous order in the said review petition.
However, the relevant records are produced with permission of this Court in the writ appeal. One of the records so produced is the copy of the minutes of the meeting of the DPC held on 6.5.2004. The said minutes amply discloses that though the case of the respondent was considered for promotion to the post of ATO, the DPC, after discussion, decided not to include the name of the respondent in the select list. The relevant portion of the minutes of the meeting reads thus :-
5. P.P.Kunhi Mohammed His service History Sheet discloses various offences in his service. He was placed under suspension and was punished 20 times including 3 cumulative increment bar, 2 temporary bar, 13 censures and 2 recorded warning. The D.P.C. Considered that he is a habitual offender and is not qualified to be promoted to a Higher Division post and therefore his name need not be included in the select list." W.A. No.270 of 2013 -: 5 :-
From the aforementioned, it is clear that in the DPC meeting held on 6.5.2004, on merits, it was decided that the respondent is not eligible for the post of ATO. The respondent's history sheet discloses various factors in his service; he was placed under suspension and was punished 20 times including 3 cumulative increment bar, 2 temporary bar, 13 censures and 2 recorded warning. The DPC, having felt that the respondent is unsuitable for the higher division post, has decided not to include his name in the select list.
Another relevant document produced by the appellant in this appeal is a notification issued by them, by which, the KSRTC Appointment to Higher Division Services (Preparation of Select List) Regulations, 1988 were framed. Clause 2(iv) of the said Regulation defines 'Selection Posts', which reads thus :-
"iv) "Selection Posts" means posts that are declared as Higher Division Services and are specified in the Annexure to these Regulations."
"Annexure" to this Regulation contains list of selection posts. The post of ATO is at 'serial No.41'. In view of the same, the Corporation is justified in arguing that the post of ATO is a selection post, inasmuch as such argument is based on the records and the Regulation. Clause 3 of the said Regulation prescribes W.A. No.270 of 2013 -: 6 :- 'Procedure for making appointment to selection posts', the same reads thus :-
"3. Procedure for making appointment to selection posts.
Promotions and appointment by transfer from the services of the Corporation shall be made from a select list prepared from among eligible Officers on the basis of merit and ability. Seniority being considered only where merit and ability are approximately equal. Persons included in the select list shall be ranked in the order of their seniority."
The procedure prescribed mandates that the promotion and appointment by transfer shall be made from a select list prepared from among eligible officers on the basis of merit and ability. The seniority being considered only where merit and ability are approximately equal. The persons included in the select list shall be ranked in the order of their seniority. Hence, it is mandatory to fill up the selection post on the basis of merit cum ability and not on the basis of seniority. The seniority will be considered only when merit and ability are approximately equal among the candidates.
Unfortunately, as mentioned supra, these two vital documents were not placed on record by the appellant either in the writ petition or in the review petition, consequent upon which, error has crept in the impugned judgment and the order in the W.A. No.270 of 2013 -: 7 :- review petition. We hasten to add here itself that it was the duty of the Corporation to place on record relevant documents and to argue their matter. Because of the inaction on the part of the Corporation, the aforementioned two relevant documents were not placed on record and consequently, they did not get the benefit of those documents, which led to miscarriage of justice. It is most unfortunate that the Corporation being an instrumentality of the State was not represented before the Court in the writ petition and in the review petition filed by them, vital documents were not placed on record. There cannot be any dispute that the Corporation is assisted by the legal wing, which is deemed to be manned with competent law officers. It is not expected from a State wing acted in the aforementioned manner before the courts of law.
Be that as it may, since the respondent is not eligible for appointment to the post of ATO, inasmuch as his name is not included in the select list, having regard to his service history sheet mentioned supra, the impugned judgment in W.P.(C) No.21417 of 2007 and the order in R.P. No.1232 of 2012 are liable to be set aside. The learned Single Judge has also clearly observed in the impugned judgment that if the promotion post is a W.A. No.270 of 2013 -: 8 :- selection post, then the imposition of punishment can also be taken into account for consideration of the respondent for such promotion while considering the interse merit of the eligible candidates considered for selection for promotion. The learned Single Judge, without being assisted by the then Standing Counsel for the Corporation, misunderstood the facts and concluded that the post in question is not a selection post but it is a post to be filled up on the basis of seniority.
It is brought to the notice of this Court by the learned counsel for the appellant that the appellant is not aggrieved by the other portion of the impugned judgment and that they will comply with the same and disburse consequential monetary benefits to the respondent.
Having regard to the aforementioned facts and circumstances, the appeal is liable to be partly allowed, however, by imposing costs on the appellant for the reasons already mentioned supra.
Accordingly, the appeal is partly allowed insofar as it relates to directing the appellant to notionally promote the respondent to the post of ATO. The impugned judgment and order passed in the aforesaid writ petition and in the review petition are W.A. No.270 of 2013 -: 9 :- set aside to the extent indicated above. The appellant is imposed with costs of `25,000/- (Rupees twenty five thousand only), which shall be paid to the respondent directly within eight weeks from this date.
Sd/-
MOHAN M. SHANTANAGOUDAR CHIEF JUSTICE Sd/-
ANIL K. NARENDRAN JUDGE //TRUE COPY// P.A. TO JUDGE Jvt/10.2.2017