Sheeba Joseph vs The State Of Kerala on 17 May, 2010

[Cites 6, Cited by 0]

Kerala High Court

Sheeba Joseph vs The State Of Kerala on 17 May, 2010

1.The issue raised in this appeal filed by the unsuccessful writ petitioner is regarding the legality of the by-transfer appointments made to the post of Assistant Motor Vehicles Inspector (AMVI), a post borne in the Kerala Transport Subordinate Services Rules, hereinafter referred to as the 'Special Rules', for short.

2.When the Motor Vehicles Act, 1937 was in force, appointments to the post of AMVI were governed by the Kerala Transport Subordinate Service Rules, 1964. Subsequently, the 1937 Act was replaced by Motor Vehicles Act, 1988, hereinafter referred to as the 'Act', for short. Section 213 of the Act provided for the appointment of Motor Vehicle Officers and as per sub-section (1), the State Government may, for the purpose of carrying into effect the provisions of the Act, establish a Motor Vehicles Department and appoint as officers thereof such persons as it thinks fit. Sub-section (4) provided that the Central WA.942/10 2 Government may, having regard to the objects of the Act, by notification in the official gazette, prescribe the minimum qualifications which the said officers or any class thereof shall possess for being appointed as such.

3.In exercise of the powers under section 213(4) of the Act, the Central Government issued Ext.P1 notification dated 12.6.1989, prescribing the minimum qualifications for the officers consisting of the category of Inspector of Motor Vehicles or Assistant Inspector of Motor Vehicles by whatever name the post is called. Apart from the minimum general educational qualification of pass of X standard and diploma in Automobile Engineering, the Central Government prescribed that the candidate must have working experience of at least one year in a reputed automobile workshop which undertakes repairs of both light motor vehicles, heavy goods vehicle and heavy passenger vehicles fitted with petrol and diesel engine. This notification took effect from the first of July, 1989.

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4.Subsequently, on 18.7.1995, the Public Service Commission invited applications for appointment to the post of AMVIs, specifying the qualifications in Ext.P1. Even at that period, the method of appointment was as prescribed in the Special Rules, 1964 (Ext.R3(a), which provided for a ratio of 1:4 for appointment by transfer and direct recruitment.

5. The appointments made in the transfer quota became the subject matter of challenge before this Court on the ground that some of the appointees did not have post qualification experience. That issue was finally settled by this Court in Sirajudheen v. Kerala Public Service Commission [2001 (2) KLT 268], where, referring to Rule 10(ab) of K.S. & S.S.R. and the general legal principles laid down by the Apex Court in Sheshrao Janguluji Bagde v. Baiyya [AIR 1991 SC 76], this Court held that the experience prescribed in Ext.P1 notification issued by the Government was post qualification experience. That judgment attained finality.

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6.Subsequently, on 17.2.2004, yet another notification was issued by the PSC inviting applications. Simultaneously, steps were also initiated for making by-transfer appointments in the quota earmarked for departmental candidates. The selection process was completed and the PSC published its ranked list in December, 2005. The appointments of the departmental candidates in the vacancies earmarked for by-transfer appointments were again challenged before this Court on the ground of want of post qualification experience, which issue was already decided by this Court in Sirajudheen (supra). The issue was finally decided by this Court in W.A.1643/07, where, making reference to Sirajudheen (supra) and Rule 10(ab) of the K.S. & S.S.R., it was held that the experience prescribed is post qualification experience. It was also ordered that the ineligible persons appointed should be reverted. It is stated that the Special Leave Petitions filed against the judgment were dismissed. Later, R.P.941/00 was filed by the party respondent and that was also dismissed by this Court by Annexure II order dated 23.11.2007. WA.942/10 5

7.According to the appellant, alleging non-compliance of the directions in Annexures I and II judgments, contempt petitions were filed and during the pendency of those petitions, Kerala Transport Subordinate Service Rules, 2008, Ext.P2, was issued by the Government in supercession of Ext.R3(a) Special Rules, 1964. In so far as the appointments by transfer to the post of AMVI are concerned, in addition to the educational qualifications, the Special Rules provided thus:

"3. Working experience of at least one year in a reputed automobile workshop which undertakes repairs of both light motor vehicles, heavy goods vehicles and heavy passenger motor vehicles fitted with petrol and diesel engine.

Note I - The working experience shall be one acquired after having acquired the requisite educational qualification and the workshop from which such experience has been acquired shall be one registered with Government.

Note II - In the case of persons appointed by transfer and in service prior to the date of publication of this notification, the condition regarding working experience provided in Note I need not be insisted."

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8.Following Ext.P2 Special Rules, the first respondent issued Ext.P3 order, holding that the persons who were liable for reversion pursuant to Annexures I and II were entitled to the benefit of note II to Ext.P2 Special Rules and therefore, are not to be reverted.

9. The appellant who was an applicant to the post in the direct recruitment quota in response to the notification issued by the PSC on 17.2.2004, was included at rank No.7 of the supplementary list for LC candidates to the main ranked list dated 6.12.2005. It was aggrieved by note II to Ext.P2 Special Rules of 2008 and Ext.P3 order, the appellant filed the writ petition seeking to declare note II to sub-rule (2) of rule 5 of Ext.P2 as ultra vires, to set aside Ext.P3, to report all vacancies in the post of AMVI and for other consequential reliefs.

10.Before the learned single Judge, the main contention raised was that though the State Government had the competence to frame Ext.P2 Special Rules, note II was ultra vires the powers for the reason that in view of the binding judgments of this Court evidenced by WA.942/10 7 Sirajudheen (supra), Annexure I judgment in W.A.1643/07 and Annexure II order in R.P.941/07, the attempt of the State was to overrule the judgment of this Court which was impermissible and unconstitutional. Learned single Judge held that the State had the competence to frame rules in view of the provisions of the Kerala Public Services Act and Rule 10(ab) of the K.S. & S.S.R. and the point of time at which a candidate is required to have experience is silent in Ext.P1 notification issued by the Central Government. Therefore, it was held that the State could validly frame note II to Rule 5(2)(3) of Ext.P2 Special Rules in exercise of its plenary power to frame subordinate legislation. It is this judgment which is challenged before us.

11.We heard the learned counsel for the appellant, Sr.Adv.P.Ravindran appearing for R23, Adv.S.Ramesh appearing for respondents 6 to 12 and R61, Adv.Unnikrishna Kaimal appearing for respondents 3, 17, 20, 22, 24, 25 & 26, Adv.C.P.Peethambaran appearing for respondents 32, 34, 42, 45, 47, 49 to 58, Adv.Aravindakshan Pillai for respondents 27 to WA.942/10 8 29, 35, 36, 38, 39, 41, 43 & 48 and Adv.B.Mohanlal appearing for R5. We heard the learned Government Pleader appearing for the official respondents also.

12. The party respondents represented by Adv.S.Ramesh and Adv.B.Mohanlal were appointed during 2002 to 2004 and some of the appointment orders are Exts.R6(c),

(o), (s), (w) and (aa). A reading of Annexure II order passed by this Court in R.P.941/07 in W.A.1643/07 shows that this Court had clarified that those appointed prior to 17.2.2004 would not be affected by the declaration of law made by this Court in the judgment in W.A.1643/07. Evidently therefore, the aforesaid party respondents represented by Adv.S.Ramesh and Adv.B.Mohanlal, viz., respondents 5, 6 to 12 and 61, who were appointed prior to 17.2.2004, stand outside the controversy raised by the appellant in this case.

13. Respondents 27 to 29, 32, 34, 35, 36, 38, 39, 41, 42, 43, 45, 47, 48, 49 to 58 who are represented by Adv.C.P.Peethambaran and Adv.Aravindakshan Pillai are candidates who are educationally qualified. After WA.942/10 9 joining service, they availed leave without allowance and acquired the experience prescribed in the Special Rules and it was subsequently that they were appointed as AMVIs. Therefore, these party respondents also stand outside the controversy raised by the appellant.

14.In sum and substance, the controversy raised by the appellant is confined to the party respondents who are represented by senior counsel Adv.P.Ravindran and Adv.Unnikrishna Kaimal and this factual position is accordingly clarified.

15.When the matter was heard, the preliminary objection raised by the learned counsel for respondents was that the appellant is not entitled to maintain this litigation for the reason that she will not be entitled to any benefit. This contention was raised on the basis that the appellant is a person who was included in the supplementary list for LC candidates to the ranked list published by the PSC on 6.12.2005. It is stated that once the ranked list has expired or exhausted, the supplementary list cannot be operated WA.942/10 10 and that in the absence of any protective orders for reporting vacancies passed by this Court, the appellant cannot aspire for any benefit in this litigation.

16.We have considered the submissions made. The fact that the appellant was included only at Sl.No.7 of the supplementary list for LC candidates to the ranked list published by the PSC on 6.12.2005 is not disputed before us. In fact, this factual position stands admitted in paragraph 1 of the petition itself. As per the rules of the PSC, the ranked list published by the Commission is valid only for a maximum period of three years. Although it is averred by the State in its affidavit that the ranked list exhausted and this claim is disputed by the counsel for the appellant, fact remains that either by expiry or by reason of its exhaustion, the ranked list published on 6.12.2005 is no longer in force. It is also undisputed that during the pendency of the writ petition or the appeal, the appellant has not succeeded in getting any order from this Court requiring the appointing authority to report any WA.942/10 11 vacancy to the PSC. In such situation, law is settled by the judgment of the Apex Court in Nair Service Society v. District Officer, KPSC [2003 (3) KLT 1126], where, referring to rule 2(g) of the KPSC Rules of Procedure, the Apex Court has held thus:

"19. The above definition shows that there is only one ranked list. Therefore, the supplementary list prepared by the KPSC to satisfy the rules of reservation has, in fact, no statutory backing. For that reason when the main list is exhausted or expired, supplementary list cannot be allowed to operate. If the supplementary list alone is allowed to operate it would amount to giving greater sanctity to it and long life than the main list prepared in accordance with the Rules. Secondly, after the expiry or exhaustion of the main list if the supplementary list is operated it would violate the first proviso to Rule 15(c) of the General Rules."

In such situation, the contention of the learned senior counsel that by reason of the above, the appellant is fighting a litigation which will not enure any benefit to her is factually and legally correct.

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17. Now, proceeding to the merits of the controversy, before the learned single Judge, the competence of the State to frame rules was not disputed by the appellant. On the other hand, the disputes raised by the appellant concerned only the legality of note II to rule 5(2)(3) of the Special Rules of 2008. Admittedly, the Central Government in Ext.P1 did not specify the point of time at which the candidate for appointment to the post of AMVI is required to have the experience prescribed. Therefore, in exercise of its powers under section 213(1) and the enabling provisions of the Kerala Public Services Act, State was well within its powers to frame rules which supplemented the prescriptions by the Central Government. If that be so, it was well within the rule making power of the State to prescribe the point of time on which candidates are required to have the experience prescribed. This, as held by the learned single Judge, has been prescribed to be post qualification experience. However, in doing so, in order to remove the hardship that is caused to a section of the employees, on account of the directions in the judgment in W.A.1643/07, the State WA.942/10 13 has added note II to the rules directing that the requirement that the experience shall be post qualification experience need not be insisted for those appointed by transfer and in service prior to the publication of the notification. Therefore, we agree that the learned single judge was well within the powers of the Government and we are unable to accept that this amounts to usurpation of the judicial power attracting vitiating circumstances pointed out by the Apex Court in its judgments in State of Tamil Nadu v. Arooran Sugars Ltd. [(1997) 1 SCC 326] and Virender Singh Hooda v. State of Haryana [(2004) 12 SCC 588]. We, therefore, do not find any merit in this appeal.

Appeal fails. It is accordingly dismissed.

Sd/-

ANTONY DOMINIC, Judge.

Sd/-

ALEXANDER THOMAS, Judge.

kkb.

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