IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 38683 of 2003(E)
1. M.G.CHANDRASEKHARAN NAIR,
... Petitioner
Vs
1. THE KERALA STATE ROAD TRANSPORT
... Respondent
2. SHRI P.K. BHASKARA PILLAI,
3. SHRI V.V.VASANTHARAJAN,
4. SHRI P.K.BHASKARAN,
For Petitioner :SRI.N.UNNIKRISHNAN
For Respondent :SRI.JAMES KOSHY.N., SC. KSRTC
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :14/03/2007
O R D E R
PIUS C. KURIAKOSE,J.
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W.P.(C)No.38683 of 2003
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Dated: 14th March, 2007
JUDGMENT
The petitioner who joined the service of the K.S.R.T.C. as a
Reserve Conductor has filed this Writ Petition arraying the K.S.R.T.C.,
P.K.Bhaskara Pillai, V.V.Vasantharajan and P.K.Bhaskaran as
respondents 1 to 4 respectively seeking inter alia a writ of certiorari
quashing Exts.P1, P3 and P8 and seeking a declaration that he is
entitled to get all promotions in the light of Exts.P4 and P5 prior to his
juniors like respondents 2 to 4. He has also sought for a writ of
mandamus commanding the first respondent to issue necessary
orders granting all promotions in the light of Exts.P4 and P5 to the
petitioner prior to the date on which his immediate junior the 2nd
respondent was given promotion, i.e. 17.7.2001. Ext.P1 is the order
dated 17.7.2001 by which the 2nd respondent was given cadre
promotion as Station Master. Ext.P2 is the relevant portion of the
gradation list which is produced to substantiate the claim of the
petitioner that he is senior to respondents 2,3 and 4. Aggrieved by
Ext.P1 and similar orders issued in favour of respondents 2,3 and 4,
the petitioner filed representation before the 1st respondent who
turned down the representation and issued Ext.P3 order on 7.3.2002.
The petitioner relies on Ext.P4 judgment of this court in O.P.No.14175
W.P.C.No.38683/03 – 2 –
of 2002 and contends that seniority in a cadre is to be computed in
the light of the provisions contained in Rule 27 of the Kerala State
and Subordinate Service Rules which has been adopted by the
K.S.R.T.C. also. A direct recruitee through the Public Service
Commission is entitled to count seniority with effect from the date of
first effective advice and a promotee is entitled to count seniority
from the date of appointment and that availing of leave without
allowance will not in any way affect the seniority of the petitioners in
the cadre of Drivers and that Rule 4 of Appendix XII-A deals with the
period during which the incumbent was absent from duty. The
petitioner relies also on Ext.P5 judgment of this court wherein
another learned Judge also has taken the view that as far as
promotions which fall due after the incumbent who had previously
availed leave without allowance is come back in service, she should
not be superseded based on Rule 4 of Appendix XII-A of K.S.R.
Ext.P6 is copy of the Review Petition which was submitted by the
petitioner relying on Exts.P4 and P5 and Ext.P7 is copy of the
judgment of this court by which the K.S.R.T.C. was directed to have
an early decision on Ext.P6. Pursuant to Ext.P7, Ext.P8 order has
been issued by the Executive Director of the K.S.R.T.C. Apart from
pointing out that Ext.P8 has been issued by the Executive Director
W.P.C.No.38683/03 – 3 –
though the direction under Ext.P7 was to the Managing Director, the
petitioner impugns Ext.P8 on various grounds and has filed the Writ
Petition for the reliefs already indicated.
2. The K.S.R.T.C. has filed a counter affidavit justifying Ext.P8
and trying to distinguish the case of the petitioner from the cases
covered by Exts.P4 and P5.
3. To the counter affidavit, the petitioner has filed a reply
affidavit.
4. Heard Mr.N.Unnikrishnan, counsel for the petitioner and
Mr.Johnson P.John, Standing Counsel for the K.S.R.T.C.
5. Mr.Unnikrishnan drew my attention to Exts.P4 and P5 and
also to the judgment of this court in W.A.No.1167 of 2003 wherein
the Division Bench has endorsed the views expressed by the learned
Single Judge in O.P.No.14175 of 2002. Learned counsel drew my
attention to my own judgment in W.P.C.No.22714 of 2006. Lastly
learned counsel placed before me copy of the order
No.PL4/000625/2007 issued by the Managing Director of the
K.S.R.T.C. which would show that in implementation of the directions
in W.A.Nos.1167/03 and 1179/05 the K.S.R.T.C. has accepted the
principle that leave availed by an employee does not in any way take
away the seniority gained by him based on the date of appointment
W.P.C.No.38683/03 – 4 –
to that cadre and that such employees will forfeit only those
promotions which fell due while they were on leave without allowance
and not the promotions which becomes available after they rejoin
service.
6. Mr.Johnson P.John, Standing Counsel for the K.S.R.T.C. tried
to resist all the submissions of Mr.Unnikrishnan on the basis of the
counter affidavit filed by the K.S.R.T.C. My attention was drawn by
Mr.Johnson to Rule 69, Part I K.S.R. which provides that an officer on
leave shall not take up any service or accept any employment without
obtaining previous sanction of the authority empowered to fill up the
post held by him and the period of leave without allowance will be
‘Dies-non’ for all practical purposes. Counsel also would place before
me a copy of the Government Order, G.O.(P)No.274/70/Fin. dated
29.4.1970 in support of his argument that the period during which
the petitioner was on leave without allowance has to be treated as
‘dies-non’ for all purposes and argued that to that extent petitioner
will forfeit his seniority to respondents 2 to 4. Mr.Johnson would
refer to the Division Bench judgment of this court in K.S.R.T.C. v.
Noorudeenkutty (2005(3) KLT 504).
7. K.S.R.T.C. v. Noorudeenkutty (supra) was a case in which
the Division Bench considered the effect and implications of Rule 4 of
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Appendix XII-A of the K.S.R. on employees taking up employment
abroad prior to 16.12.1983 and the employees who availed such
leave after 23.6.1984, the day on which Appendix XII-A was made
applicable to the employees of the K.S.R.T.C. That judgment in my
view does not answer the specific question which has arisen for
consideration in this case. That judgment in fact while referring to
Rule 4 of Appendix XII-A states that Rule 4 specifies that those who
are on leave without allowance with effect from 16.12.1983 in
Government and from 23.6.1984 in K.S.R.T.C. will lose all the
service benefits including seniority and promotion that
became due during the currency of the leave.
8. The issue I notice is squarely covered by Exts.P4 and P5
judgments and the judgment of the Division Bench of this court in
W.A.Nos.1167 of 2003 and 1179 of 2005. In fact the same issue was
considered and decided by me in W.P.C.No.22714 of 2006. Order
No.PL4/000625/2007 dated 12.2.2007 issued by the Managing
Director of the K.S.R.T.C. will show that the directions in the
judgment of the Division Bench in W.A.Nos.1167 of 2003 and 1179 of
2005 have been implemented by the Managing Director in so far as
the same relates to the parties in those cases. This being the
position, I am of the view that notwithstanding the contentions, the
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petitioner is entitled for relief. Respondents 2, 3 and 4 despite service
of notice on them have not chosen to file any counter affidavit.
Nevertheless I am not inclined to grant the prayer for quashing
Ext.P1 promotion order issued in favour of the 2nd respondent. It
would suffice if the petitioner is also given promotion and assigned
seniority above the 2nd respondent in the concerned list. Accordingly,
it is declared that the petitioner is entitled to all the promotions in the
light of Exts.P4 and P5 even prior to his juniors, respondents 2 to 4
and also for all consequential benefits. In view of the above
declaration, there will be a direction to the first respondent to issue
necessary orders granting all promotions to the petitioner in the light
of Exts.P4 and P5 prior to 17.7.2001, the date on which the 2nd
respondent was given promotion. Necessary orders for
implementation of the above directions will be issued by the the first
respondent at his earliest and at any rate within six weeks of
receiving a copy of this judgment.
The Writ Petition will stand allowed as above. No costs.
srd PIUS C.KURIAKOSE, JUDGE