Kerala High Court
M.K.Sekharan vs Managing Director on 10 October, 2019
Bench: K.Vinod Chandran, V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 10TH DAY OF OCTOBER 2019 / 18TH ASWINA, 1941
WA.No.191 OF 2017
AGAINST THE JUDGMENT IN WPC 11906/2015 DATED 05-09-2016 OF HIGH
COURT OF KERALA
APPELLANT/S:
1 M.K.SEKHARAN, AGED 56 YEARS
S/O. KOCHATTY, MOOLAMKUDY HOUSE,
ANKAMALY PO., PIN-683572.
(INSPECTOR RETIRED, KERALA STATE ROAD TRANSPORT
CORPORATION, N.PARUR UNIT)
2 P.G.MOHANAN, AGED 57 YEARS
S/O. PARAMESWARA PILLAI,'SANGEERTHANAM', KARUMALLOOR
PO.,VIA ALANGAD, ALUVA PIN-683511.(INSPECTOR RETIRED,
KERALA STATE ROAD TRANSPORT CORPORATION, N.PARUR
UNIT)
BY ADVS.
SRI.P.JAYAKUMAR
SRI.V.N.MOHANADASAN
RESPONDENT/S:
MANAGING DIRECTOR,
KERALA STATE ROAD TRANSPORT CORPORATION
TRANSPORT BHAVAN, THIRUVANANTHAPURAM PIN-695023
R1 BY ADV. ADV.T.P.SAJAN ,
ADV.P.C.CHACKO,SC,KSRTC(B/O)
R1 BY SRI.M.GOPIKRISHNAN NAMBIAR, SC, KSRTC
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10.10.2019, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
VINOD CHANDRAN,J.
The appellants herein are retired employees of the Kerala State Road Transport Corporation (K.S.R.T.C), who claimed temporary promotion with effect from the date on which their respective juniors were promoted; in accordance with Rule 13A of the Kerala State and Subordinate Service Rules (KS & SSR). They also seek regular promotion in the year 2015, when they came within the zone of consideration, which was declined to them for reason of they having not passed the Manual of Office Procedure (MOP) test and K.S.R.T.C Manual test. The claim is anchored upon Rule 13B of the KS & SSR and WA.No.191 OF 2017 ..3..
the exemption from obligatory tests provided there under.
2. The learned Single Judge found that the petitioners at the time of promotion of their juniors in the year 2015 did not posses one or either of the qualifications as prescribed in the Special Rules. The learned Single Judge also negatived the claim for exemption from compulsory departmental test made under Rule 13B of the KS & SSR, on the ground that the rule itself provided that there could be no exemption provided for a test prescribed as qualification in the Special Rules for promotion or appointment as full member of a service.
3. The employees are in appeal. On facts, it has to be noticed that all the petitioners joined the K.S.R.T.C as WA.No.191 OF 2017 ..4..
Conductors and were promoted as Inspectors during the year 2008 and 2010. The next promotion post is that of Assistant Transport Officer (ATO), in which 60% of the available vacancies are to be filled by promotion of Inspectors, 25% by direct recruitment and 15% by internal recruitment. The first and third petitioners were retired from service on 31.05.2015 and the second petitioner on 31.12.2015. The Departmental Promotion Committee (DPC) meeting, which considered the suitability of a list of employees and officers, published as per Circular dated 26.03.2015, declined promotions to the petitioners for reason of their not possessing the compulsory test qualification.
4. The petitioners were respectively Serial Nos.7, 42 and 53 and if they were WA.No.191 OF 2017 ..5..
promoted, they would have occupied the positions before Serial Nos. 3, 23 and 26 in Ext.P4 promotion list. The petitioners also had a contention for temporary promotion under Rule 13A on the ground that when a test qualification is for the first time prescribed, they should be given at least 2 years for qualifying the same and in the meanwhile, if they come within the zone of consideration, they should be promoted temporarily, subject to the condition of passing the compulsory test.
5. The learned Standing Counsel for the K.S.R.T.C, however submitted that the test qualification was prescribed in 2012 and in 2014, the period as provided in Rule 13A expired. After 2014, any employee to be promoted to the post of ATO has to necessarily have the test qualification as WA.No.191 OF 2017 ..6..
has been found by a Division Bench in a judgment produced as Annexure-R1(a) along with the counter affidavit dated 08.10.2018. It is argued that the Division Bench had considered the very same test qualification and found that in assessment of merit, the acquisition of such qualification can be considered by the DPC.
6. At the out set, we notice that the test qualification is not prescribed in the Special Rules. The qualifications as prescribed in the Special Rules have been extracted by the learned Single Judge, as available in page 13 of the judgment. Admittedly, the petitioners claim was for promotion in the 60% vacancies kept apart for Inspectors. We extract the relevant portion.
WA.No.191 OF 2017 ..7..
(iv)
Assistant (i) xxx
Transport (ii) xxx
Officer (iii) Selection by DPC
promotion and based on
[60% of seniority merit
vacancies] from among the
feeder category
of Transport
Inspectors
Note:-
1. The entry cadres in Higher Division Officer category in the Operating branch is Assistant Transport Officer.
2.Women candidates are eligible for appointment.
3.Physically Handicapped candidates are not eligible for the post.
7. There is no test qualification prescribed in the Special Rules and even according to the K.S.R.T.C, the same was prescribed by a wage revision agreement dated 27.11.2012. The wage revision agreement was entered into between the Management and the representative Unions of WA.No.191 OF 2017 ..8..
employees of the K.S.R.T.C, which prescribed the test qualification of MOP and K.S.R.T.C Manual test for the purpose of promotion to the post of ATO.
8. In this context, we have to notice Rule 13B of KS and SSR, which has been extracted by the learned Single Judge in page 9 of the judgment. Rule 13B specifically provides for a permanent exemption from passing the obligatory departmental test on the employee attaining the age of 55 years and completing 25 years of service. As far as SC/ST employees are concerned, they are entitled to such permanent exemption merely on attaining the age of 50 years. The reservation specifically noticed by the learned Single Judge is provided in brackets in Rule 13B, which is extracted hereunder:-
WA.No.191 OF 2017 ..9..
xxxxxxx
[other than those prescribed as
qualification in the Special Rules for all purposes such as promotion, appointment as full member of a service etc].
9. Hence the exemption for an employee on attaining 50 years and completing 25 years of service would not be applicable to obligatory departmental test prescribed under the Special Rules. We found the Special Rules as it existed in the year 2015 having not provided for any obligatory test qualification. The obligatory test qualification was that provided by a bipartite agreement, to which the exemption under Rule 13B squarely applies.
10. We also notice that the Special Rules were amended by Order No.3493/ GL2/ 2002/RTC, dated 18.04.2016, which has WA.No.191 OF 2017 ..10..
provided obligatory test qualification in the Special Rules itself. We extract the provision herein:-
2. should have passed Manual of Office Procedure (MOP) and KSRTC Manual test with effect from 28.02.2015.
11. The date of 28.02.2015 is only with respect to the interregnum, where the temporary promotions should have been granted without a test qualification since the prescription has been made for the first time as per the bipartite agreement in the year 2012. We are of the opinion that the retrospective effect given from 28.02.2015 is of no consequence and cannot disentitle the petitioners from such consideration. We find that at the time of consideration of the petitioners', there was no qualification provided in the Special Rules and Rule 13B WA.No.191 OF 2017 ..11..
would have application, thus exempting the petitioners from the obligatory test prescribed under the bipartite agreement.
12. There is a contention raised by the learned Counsel for the petitioner that they should also have been considered for temporary promotion, on the date on which their juniors were promoted as per Rule 13A. We notice Rule 13A[1](b) which also has been extracted in page 10 of the impugned judgment. Rule 13A[1](b) specifically speaks of temporary promotions in case were obligatory tests are brought in for the first time in the Special Rules and a breathing time granted to the employees to qualify the same. Rule 13A would have no application, especially since we found that the obligatory test qualification was not available in the Special Rules as on 2015 or WA.No.191 OF 2017 ..12..
even in 2012, when it was brought in by way of a bipartite agreement.
13. We do not subscribe to the view expressed by the learned Standing Counsel that the Division Bench decision covers the issue. The Division Bench considered only whether there can be a consideration of the departmental test for assessment of merit for the purpose of promotion to the post of ATO. There was no question of a claim of exemption for the employee therein, having attained 50 years and completed 25 years of service. It was in that context that the Division Bench held that on assessment of merit, the qualifications can necessarily be considered. The Division Bench also did not notice Rule 13B of the KS & SSR, which specifically provided for an exemption to employees, on the basis of age and completed WA.No.191 OF 2017 ..13..
years of service. The Division Bench also pertinently did not find the tests to be obligatory ones under the Special Rules. It is also seen from the Division Bench judgment that the issue was left to be considered by the Board itself and the Board has subsequently taken steps to incorporate it in the Special Rules, but however having prospective effect from the year 2016 only, when the amendments as noticed above were brought in.
14. On the above reasoning, we find that the petitioners are entitled to exemption under Rule 13B of the KS & SSR and they ought to have been considered for promotion in the year 2015 itself. The persons having retired at this juncture, the K.S.R.T.C will issue orders of promotion and all attendant benefits of pay and allowances WA.No.191 OF 2017 ..14..
shall be paid to them during the period in which they would have worked as ATO. The pension also shall be suitably fixed in accordance with the higher pay scale, they are entitled to get. The K.S.R.T.C shall pay the arrears within a period of four months from the date of receipt of a certified copy of this judgment.
The writ appeal is allowed. Parties to suffer their respective costs.
Sd/-
K.VINOD CHANDRAN JUDGE Sd/-
V.G.ARUN
JUDGE
SB/10.10.2019
WA.No.191 OF 2017 ..15..
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE A1 CERTIFIED COPY OF THE JUDGMENT DATED
5.9.2016 IN W.P.(C) NO.11906 OF 2015 OF THE LEARNED SINGLE JUDGE OF THIS HON'BLE COURT.
ANNEXURE A2 TRUE COPY OF THE ADMISSION TICKET AND EXAMINATION RESULT (REG. NO.110955) RESPONDENT'S/S EXHIBITS:
EXHIBIT R(a) TRUE COPY OF THE JUEGMENT IN W.A NO.525/2014 DATED 1-10-2014.
EXHIBIT R(b) TRUE COPY OF THE DECISION OF BOARD MEETING VIDE AGENDA ITEM NO. 80/2015 DATED 28.5.2015.
// TRUE COPY // P.A TO JUDGE