Kerala High Court
George Joseph vs The Kerala State Road Transport ... on 22 June, 2000
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
TUESDAY,THE 26TH DAY OF FEBRUARY 2013/7TH PHALGUNA 1934
WP(C).No. 34191 of 2008 (U)
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PETITIONER(S):
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1. GEORGE JOSEPH, S/O.JOSEPH, AGED 44 YEARS,
DRIVER GR.II, KSRTC, PALA
AND RESIDING AT, PARANJATTU HOUSE, KATTACHIRA P.O.
KIDANGOOR, KOTTAYAM.
2. RAJU MATHEW, S/O.MATHEW, AGED 46 YEARS,
DRIVER GR.II, KSRTC, PALA
AND RESIDING AT, MOOLAKKUNNEL HOUSE, ERANADU P.O., PALA.
3. P.K.ANIL KUMAR, S/O.KARUNAKARAN NAIR,
AGED 48 YEARS, DRIVER GR.II, KSRTC
PALA., AND RESIDING AT PARIYATHU HOUSE, MEENACHIL P.O., PALA.
4. RAJEEV JOSE, S/O.JOSEPH, AGED 51 YEARS,
DRIVER GR.II, KSRTC, PALAI
AND RESIDING AT, PANACKALCHALIL HOUSE, PALA P.O., PALA.
BY ADV. SRI.N.UNNIKRISHNAN
RESPONDENT(S):
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1. THE KERALA STATE ROAD TRANSPORT CORPORATION
TRANSPORT BHAVAN, FORT,
THIRUVANANTHAPURAM, REPRESENTED BY THE
MANAGING DIRECTOR.
2. THE DISTRICT TRANSPORT OFFICER, KSRTC, PALA.
3. THE KERALA PUBLIC SERVICE COMMISSION,
PATTOM, THIRUVANANTHAPURAM.
4. SHRI.K.K.BABU, DRIVER, KSRTC, PALA.
5. SHRI.N.SASEENDRA BABU, DRIVER, KSRTC, PALA.
R1,2 BY SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC
R3 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC
R4 BY ADV. SRI.A.K.HARIDAS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-02-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PJ
WP(C).No. 34191 of 2008 (U)
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APPENDIX
PETITIONERS' EXHIBITS
P1: COPY OF MEMORANDUM NO.PLA.6/26300/2000 DTD.8/7/2000 ISSUED TO THE
FIRST PETITIONER.
P2: COPY OF MEMORANDUM NO.PLA.6/026300/2000 DTD.4/7/2000 ISSUED TO
THE 2ND PETITIONER.
P3: COPY OF MEMORANDUM NO.PLA.6/026300/2000 DTD.12/7/2000 ISSUED TO
THE 3RD PETITIONER.
P4: COPY OF MEMORANDUM NO.PLA.6/026300/2000 DTD.8/7/2000 ISSUED TO
THE 4TH PETITIONER.
P5: COPY OF MEMORANDUM NO.PL3-1771/2001/PTA DTD.19/7/2000 ISSUED TO
THE 2ND PETITIONER.
P6: COPY OF MEMO.NO.E1/1437/2000/PLA DTYD.5/7/2001.
P7: COPY OF GRADATION LIST OF DRIVERS AS ON 1/1/2007
P8: COPY OF GRADATION LIST OF DRIVERS AS ON 1/1/2007
P9: COPY OF SENIORITY LIST DRIVERS AS ON 1-2-2008 ISSUED BY 2ND
RESPONDENT
P10: COPY OF THE REPRESENTATION DTD.25/2/2008 SUBMITTED BY PETITIONERS
TO THE FIRST RESPONDENT.
P11: COPY OF JUDGMENT DTD.4/8/2008 IN WPC.NO.9306/08
P12: COPY OF OBJECTION STATEMENT DTD.1/9/2008 SUBMITTED BY THE
PETITIONERS.
P13: COPY OF IMPUGNED FINAL GRADATION LIST AS ON 1/1/2008 ISSUED BY THE
FIRST RESPONDENT.
P14: COPY LETTER DTD.10/11/2008 ISSUED BY FIRST RESPONDENT
P15: COPY LETTER DTD.12/11/2008 ISSUED BY2ND RESPONDENT.
P16: COPY OF LETTE NO.P10 374/08 DTD.10/10/08 BY THE PUBLIC INFORMATION
OFFICER OF THE KSRTC.
P17: COPY OF THE ADVICE SENIORITY LIST OF CANDIDATES RECRUITED ON
22/6/2000 FOR THE POST OF RESERVE DRIVER IS RESPECT OF PETITIONERS
AND CONTESTING RESPONDENTS
P18; COPY OF SCHEDULE LIST W.E.F.16/11/2008 ISSUED BY THE 2ND
RESPONDENT.
PJ
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WP(C).No. 34191 of 2008 (U)
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P19: COPY MEMORANDUM NO.PL18/33621/05 DTD.16/4/08
P20: COPY OF COUNTER AFFIDAVIT DTD.17/1/2009 IN WPC.NO.28470/08
P21: COPY OF CIRCULAR MEMORANDUM NO.PL18-33621/05 DTD.31/1/2009
P22: COPY OF MEMORANDUM NO.PL10/002003/10 DTD.17/4/2010
RESPONDENTS' EXHIBITS
R4(A): COPY OF THE MEMO DATED 22/6/2000
R4(B): COPY OF THE LETTER DATED 10/7/2000 ISSUED BY THE 1ST RESPONDENT.
/ TRUE COPY /
P.S. TO JUIDGE
PJ
C.K. ABDUL REHIM, J.
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W.P.(c) No. 34191 OF 2008
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DATED THIS THE 26th DAY OF FEBRUARY, 2013
J U D G M E N T
Petitioners as well as respondents 4 and 5 are Drivers Grade-II appointed in the 1st respondent Corporation on the basis of advice issued by the 3rd respondent. Exhibits P1 to P4 memorandum of appointments were issued in the case of the petitioners based on advice list submitted by the 3rd respondent Corporation, dated 22-06-2000. Eventhough serial numbers of each candidates were mentioned in Exts.P1 to P4, it was specifically mentioned in Exts.P1 to P4 itself that the serial number in the Advice list is provisional and it will be finalised by the 3rd respondent later. On completion of probation the petitioners were absorbed into regular service by virtue of Exts.P5 and P6. Exhibit P7 is the gradation list of Drivers working in the 1st respondent Corporation, published on 01-01-2007. The petitioners were assigned Rank Nos.94, 1326, 2082 and 867 respectively. W.P.(c) No.34191/2008 -2- Subsequently another gradation list as on 01-01-2007 was published as per Ext.P8, in which the ranking position of the petitioner were changed. Exhibit P8 does not indicate any reason for such change. The 1st respondent had published another list of seniority in the cadre of Drivers as on 01-02- 2008 for the purpose of allotment of schedule, as per Ext.P9. Both the old rank and the new rank numbers were shown specifically in Ext.P9. Aggrieved by un-settlement of the seniority which affected the petitioners, Ext.P10 representation was submitted before the 1st respondent. When such representation was not considered, the petitioners have approached this court in W.P (c) No.9306/2008. Contention of the petitioners was that it does not contain any relevant particulars and it is going to affect their seniority position adversely. The 4th respondent herein who was a contesting respondent in the said writ petition contended that at the time when advice was made by the Public Service Commission, the serial numbers were alloted only on provisional basis and the seniority has now W.P.(c) No.34191/2008 -3- been re-fixed following Rules 14 to 17 of the KS & SSR. On behalf of 1st respondent it was submitted that a draft list of seniority has been published in all the units and objections were already called for. The 1st respondent submitted that if any objection is made by the petitioners, the same will be considered. This Court disposed of the writ petition through Ext.P11 judgment making it clear that the petitioners will be at liberty to point out their objections to the draft list. The 1st respondent Corporation was directed to finalise the matter in accordance with law, within a time limit stipulated. Exhibit P12 is the objection submitted by the petitioners to the draft gradation list. The petitioners contended that the change in the ranking position effected through Exts.P8 and P9 is violative of principles of natural justice and also it violates Rule 27 (ii) (c) of Part-II of KS & SSR. The unsettling of the seniority after a period of 3 years was also impugned. Further contention was that the advice seniority of candidates recruited on 22-06-2006, cannot be changed after a long lapse of time.
W.P.(c) No.34191/2008 -4-
2. Exhibit P13 is the final gradation list published with respect to Drivers advised upto 22-03-2003. It indicate that the final list was published taking note of directions contained in Ext.P11 judgment and also the directions contained in various other judgments issued by this court. The Petitioners were included in Ext.P13 as Sl. Nos.711, 1698, 2197 and 2976. The respondents 4 and 5 are included in Sl. No.602 and 688 respectively. Immediately on publication of Ext.P13 the petitioners have again submitted Exts.P14 and P15 representations before respondents 1 and 2 raising protest against the seniority assigned to them. It is stated that on the basis of Ext.P13 the schedule of operation has been re-fixed and Ext.P18 was issued. Complaint of the petitioners is that since the seniority position has been erroneously fixed other persons allegedly junior in position has been given preference while fixing the schedule of operation. The petitioners had obtained a copy of the advice seniority list from the 3rd respondent Commission with respect to candidates advised on 22-06-2000, under W.P.(c) No.34191/2008 -5- the Right to Information Act, which is produced as Ext.P17. It indicates that the ranking position alloted at the time of advice has been totally changed. Under such circumstances the petitioners have filed this writ petition challenging Exts.P13, P17 and P18.
3. Contention of the petitioners is mainly that Exts.P13 and P17 does not mention any special reason for unsettling the seniority position enjoyed by the petitioners from 22-06-2000 onwards. Unsettling of the seniority, that too after recruitment of another batch of Drivers in 2005-2006, is highly unreasonable and unjustified, is the contention. It is further contended that while publishing the final seniority list (Ext.P13) the objections raised in Ext.P12 has not been taken note of. Inspite of specific directions contained in Ext.P11 judgment, no orders have been issued by respondents 1 and 2 mentioning any reason for fixation of the seniority. Unsettling of the seniority which was enjoyed by the petitioners from 2000 onwards was made in total violation of the principles of natural justice. Fixation of W.P.(c) No.34191/2008 -6- advice seniority as per Ext.P17 is also challenged on the ground that it is violative of Rule 27 (ii)(c) of Part-II of KS & SSR. Since all persons were advised on the same date of 22-06-2000 included in the same rank list their relative seniority should have been fixed in accordance with the order in which their names arranged in the advise list, is the contention. It was also argued that unsettling of settled position of seniority after 8 years is a clear case of misuse of power and Ext.P13 rank list published by the 1st respondent does not enumerate any yardstick or materials
4. From Ext.P1 to P4 memorandum of appointment it is evident that the serial number assigned to each candidates by the 3rd respondent was only on purely provisional basis. The 3rd respondent in their counter affidavit stated that the selection was made on the basis of notification published on 23-06-1992. Since the process of selection was delayed the rank list was expeditiously published on 01-05-2000. By the time the existing vacancy have exceeded the number of candidates available in the W.P.(c) No.34191/2008 -7- rank list. Therefore a provisional advice list was forwarded to the 1st respondent on 22-06-2000, without working out the rotation and without observing the Rules of reservation. Accordingly advice memos were also issued to candidates on provisional basis in accordance with their order in the rank list. Later on 26-02-2004 rotation was worked out and advice seniority position of the candidates were changed. As a consequence, seniority position of the petitioners were down graded on observing the Rules of reservation. It is mentioned that, while working out the reservation, 50% of vacancy have to be filled by reservation candidates in every alternative turn in a cycle of 100. Therefore the backward community candidates got up-gradation in the seniority position. In the reply affidavit filed by the petitioners it was pointed out that the stand taken by the 3rd respondent is against Rule 14 to 17 of Part II of KS & SSR. Application of reservation rules in every alternative tern in a cycle of 100 is against the judicial precedent settled by the hon'ble Supreme Court in Nair Service Society V. W.P.(c) No.34191/2008 -8- Beermasthan (2009 (3) KLT 123 (SC). In the additional counter affidavit filed by the 3rd respondent the position was clarified. In accordance with Rule 14 to 17 the vacancies are to be filled up according to rotation chart in a cycle of 100 taking unit of 20 in succession i.e., if there are more than 20 vacancies to be filled up at a time, then the rotation for filling up of 20 vacancies should be worked out first and then the next unit of 20 and so on. Of this 20, alternate 10 OC turns are filled first in the order of rank in the ranked list irrespective of the community as 1, 3, 5 etc., and then 10 BC turns of each reservation group are filled up from the remaining ranks according to rank priority. Thereafter for each reservation group relative positions of OC - BC candidates i.e., of the same community are re-arranged in their rank order in order to ensure that no lower rank holder of a particular community is placed above an upper rank holder from that community. Therefore it is contended that the re-arrangement of advice seniority list was made strictly in accordance with Rule 14 to 17.
W.P.(c) No.34191/2008 -9-
5. Heard; Sri. N. Unnikrishnan, learned counsel for the petitioners, Standing Counsel appearing for respondents 1 and 2 and Standing Counsel for 3rd respondent Corporation.
6. Main grievance voiced is regarding unsettling of the seniority position. Petitioners' contention is that it is for the respondents 1 and 2 to fix the seniority position and they are not entitled to unsettle the seniority after a long lapse of 8 years. But position remains that under Rule 27 (c) of Part II KS & SSR the seniority of a person appointed on the basis of advise made by the Public Service Commission is to be fixed based on their date of effective advice. Therefore the petitioners cannot dispute the position that their seniority is to be fixed on the basis of the date of effective advice. It is evident that on 22-06-2000 a large number of candidates were advised by the 3rd respondent through a provisional advice list submitted to the 1st respondent Corporation. It is also evident that advice memos were issued to each such individual candidates. But W.P.(c) No.34191/2008 -10- it is evident that at the time when the provisional advice list was forwarded the ranking position was not worked out observing principles of reservation and rotation. This aspect cannot be disputed in view of the specific mention contained in Ext.P1 to P4 memorandum of appointment that the serial number of each candidate is provisional and it will be finalised by the Public Service Commission later. It is evident from Ext.P17 that the Public Service Commission had revised the advise seniority after following the Rules of reservation and rotation. Eventhough various contentions are raised to the effect that, in re-fixing the advise seniority the Public Service Commission has not followed Rule 14 to 17 in a proper manner, the petitioners are not in a position to illustrate through any materials that there is any instance of violation of the said Rules. Eventhough the petitioner relied on NSS's case (cited supra) averments contained in the additional counter affidavit filed by the PSC had clarified the position. Therefore the challenge raised against Ext.P17 cannot be sustained. It is true that the revised W.P.(c) No.34191/2008 -11- advise seniority was finalised only in the year 2004, eventhough the provisional advice was made as early as in 2002. But on the basis of any undue delay the petitioners are not entitled to continue on the basis of a wrong seniority assigned at the time of appointment on provisional basis, against the rules of reservation and rotation contemplated under Rule 14 to 17.
7. Next question arising for consideration is as to whether Ext.P13 and P18 are in any manner violative of the seniority fixed by the PSC under Ext.P17. Learned counsel for the petitioners had raised vehement contentions that the seniority as settled in Ext.P17 has not been followed in Ext.P13. In order to substantiate such a contention it is pointed out that the ranking position re-assigned under Ext.P17 is not followed while assigning seniority contained in Ext.P13. But it is pertinent to note that Ext.P13 is not a seniority list of candidates advised on 22-06-2000 alone. On the other hand that is a final gradation list of Drivers working in the 1st respondent Corporation as on 01-01-2008. W.P.(c) No.34191/2008 -12- Therefore there cannot be the same ranking position and the same serial number. The petitioners are not in a position to illustrate any case of anomaly in the seniority position settled in Ext.P17 by the 3rd respondent or to show that such seniority position has been overlooked in Ext.P13. The petitioners have no case that while fixing the schedule of operation as contained in Ext.P18 the seniority position as per Ext.P13 which is based on Ext.P17 list has been overlooked. Since the petitioners are not in a position to establish any case of violation of Rule 14 to 17 or Rule 27
(ii) of Part II of KS & SSR, interference of this Court is not warranted.
Hence the writ petition deserves no merit and the same is accordingly dismissed.
Sd/-
C.K. ABDUL REHIM, JUDGE.
AMG True copy P.A to Judge