IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 12782 of 2007(V)
1. M.KESAVAN, CONDUCTOR SPECIAL GRADE,
... Petitioner
2. R.VINAYAKAN NAIR, CONDUCTOR SPECIAL
3. T.CHANDRAKUMAR, CONDUCTOR II GRADE,
Vs
1. THE KERALA STATE ROAD TRANSPORT
... Respondent
2. THE CHIEF PERSONNEL MANAGER-IN-CHARGE OF
3. THE EXECUTIVE DIRECTOR(ADMINISTRATION)-
4. THE DISTRICT TRANSPORT OFFICER,
5. D.SHIBU KUMAR, LEGAL ASSISTANT,
6. N.SILENDRAN, LEGAL ASSISTANT,
7. S.RADHAKRISHNAN, LEGAL ASSISTANT,
8. P.N.HENA, LEGAL ASSISTANT,
For Petitioner :SRI.ANANDARAJAN.N
For Respondent :SRI.K.PRABHAKARAN, SC, K.S.R.T.C.
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :17/08/2009
O R D E R
THOTTATHIL B.RADHAKRISHNAN, J.
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W.P(C).Nos.12782 & 15920 OF 2007
& 14611 OF 2009
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Dated this the 17th day of August, 2009
JUDGMENT
1.These writ petitions are filed challenging the selection and
appointment of four persons as Legal Assistants in the service
of the Kerala State Road Transport Corporation. It is not in
dispute that Kerala State & Subordinate Service Rules, by
adoption, applies to the service in KSRTC. It is also not in
dispute that the category of Legal Assistants fall within those
enumerated in the Regulations framed by the KSRTC
prescribing the method of recruitment and qualification for
appointment. It cannot also be disputed that KSRTC service
comes within the consultative regime of the Kerala Public
Service Commission by virtue of the Kerala Public Service
Commission (Additional Functions as respects Kerala State
Road Transport Corporation) Act, 1970, hereinafter, the
“Additional Functions Act” for short, which was preceded by
Ordinance to that effect, following which Ordinance, rules
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were also issued in 1969 as the Kerala Public Service
Commission (Consultation by KSRTC) Rules, 1969. The
provisions of those rules, by virtue of the saving provisions in
the Additional Functions Act, 1970 stand. This means that the
KSRTC is bound to consult the PSC on all matters relating to
the recruitment of officers and servants other than the Chief
Executive Officer and General Manager and the Chief
Accounts Officer. This is so because, though rules have been
framed, there is none providing for any matter in respect of
which it shall not be necessary to consult the PSC.
2. With the aforesaid situation, the KSRTC issued a circular
memorandum on 15.12.2006, inviting applications from among
the qualified employees who are in the active service of
KSRTC, possessing a recognised Degree in Law, preferably
LL.B. with specialisation in Procedural Law, for selection and
appointment as Legal Assistants. That circular shows that
what the KSRTC meant by active service is “not on absence,
LWA for other employment etc.”. The said circular also
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provides that persons appointed as Legal Assistants will have
no lien in their original category. All Unit Officers were
requested to obtain applications only from among the
qualified employees who are performing regular duties in their
category and who are not on absence/LWA for other
employment, in the proforma. Following that, the petitioners
in these matters, the four selected candidates, and certain
other persons applied for. They were interviewed. That
selection is under challenge.
3.In the order of seniority of their ranking, the selected
candidates are arrayed as the private respondents in these
writ petitions.
4.The petitioners contend that the first rank holder D.Shibu
Kumar was unqualified for being considered for selection and
appointment as Legal Assistant in as much as he was not a full
member of the KSRTC service; his due completion of probation
not having been declared. It is also pointed out that though he
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did not possess LL.M. by passing the relevant examination, he
was alloted marks as if he hold such a degree. As regards N.
Silendran, S.Radhakrishnan and P.N.Hena, the three other
selected candidates, there is really no attack particularly
against Hena while Shibu Kumar, Silendran and
Radhakrishnan face the contention that they, if at all in
service, belong to non-ministerial category while the
regulations prescribe the feeder category as Lower Division
Clerks and Upper Division Clerks and hence, they were
included without authority of law, in the field of choice. Hena
also gets tagged along with the challenge against the
appointments on a larger plea that the entire selection process
is the result of nepotism, favouritism, fraud and arbitrariness,
solely aimed at ensuring that the candidates to the liking of the
selection committee got through. This plea is sought to be
founded by the petitioners on the allegation that without any
indication in the circular, inviting the applications, a formula
was crafted out immediately before the interview, whereby,
100 marks were distributed categorising the qualifications into
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different heads viz., Graduation, Post Graduation, LL.B., LL.M.,
other qualifications etc. taking slots of marks, ultimately
leaving 20% marks for the interview.
5.While the learned counsel appearing for the KSRTC would
point out that the invitation of applications cannot be found
fault with since the applications were invited on the basis of
qualifications prescribed, learned counsel for the contesting
respondents, the selected candidates, argued that in the first
place, the writ petitions are liable to be turned down since the
petitioners, following the notification, had participated in the
selection process and cannot thereafter turn round. They
argued that the petitioners have necessarily to be tied down on
principles of estoppal by conduct on ground of their
participation. It was further argued on behalf of the
contesting respondents that the fact remains that many of the
petitioners themselves belong to the non-ministerial category
and it is not for them to contend that persons from non-
ministerial category have been selected. I may at once notice
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that three among the four selected candidates are from non-
ministerial categories. It is also argued that in so far as Shibu
Kumar is concerned, there might have been an error in the
allotment of marks on the premise that he had an LL.M.
Degree; even if such mark is deducted, the scales would not
shift and that it was not the requirement of the notification
that one should have completed probation in service.
6.The petitioners have the unsurmountable contention in their
favour that while the field of choice for appointment of Legal
Assistants is confined to be from among the ministerial
categories (UDCs and LDCs), selection and appointment have
been made from among the other categories also. To that
extent, all that needs to be found is as to whether those
provisions have a statutory flair binding on the Corporation
and overriding the Board’s power to have issued any direction
which could have generated a notification in the nature of the
circular in hand. Classification of Legal Assistants as a
category, appointment to which is to be made from among
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LDCs and UDCs possessing a Degree in Law with
specialisation in Procedural Law is a prescription contained in
the Regulations. The Regulations are framed by the KSRTC in
consultation with the State Government, obligatory in terms of
Section 45 of the Road Transport Corporation Act, 1950. They,
standing with the approval of PSC, by virtue of the Additional
Functions Act, it is obligatory for the KSRTC to consult the
PSC to modify the Regulations. With such statutory flair being
available in favour of the Regulations, it is attempted to be
pointed out by the KSRTC that the selection from among all
the categories of employees of the KSRTC was resorted to on
the basis of a decision of the Board of KSRTC following the
immediately earlier precedent, which again was the outcome
of legal advice following certain earlier judgments of this
Court. The fact of the matter remains that as on today, the
Regulations govern. It is also pointed out that even the
Government have questioned the KSRTC about the procedure
adopted and the KSRTC has informed the Government that it is
proceeding to have a board decision regarding the variation of
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the Regulations with the concurrence of the State
Government. That could be only upon advice of the PSC. In
this scenario, it has also to be remembered that the power to
make regulations, including the power to make them
operational, even retrospectively if need be. With such a
situation and having regard to the fact that this Court is not
oblivious of the situation that KSRTC has different other
matters pending with the PSC or yet to be taken with the PSC
for consultation, the challenge as against the selection and
appointment of Silendran and Radhakrishnan need to be
answered only by stating that their selection and appointment
would remain provisional and shall not be confirmed unless
the KSRTC ensures that its Regulations are properly modified
opening up the zone of consideration, including the non-
ministerial categories also, subject to the petitioners’ offer
contentions, which will be dealt with hereunder.
7. In so far as Shibu Kumar’s selection is concerned, one issue is
certain, that he did not possess an LL.M. degree when he was
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considered as one who possesses such a degree and was
awarded marks by applying that yardstick. There is also an
allegation that even the certificate that he had completed that
course was made available only after the interview. That
allegation has been refuted. Be that as it may, the
fundamental issue regarding his selection is the assertion that
he had not duly completed his probation in the entry cadre and
was, therefore, incompetent to be considered for selection and
appointment either by transfer or by promotion to a higher
cadre. In so far as KSRTC is concerned, the three known
methods of appointment that it could resort to within the
format of KS & SSR is appointment by direct recruitment, by
promotion and by transfer, leaving aside deputation as a
method of filling up immediate necessities. In so far as regular
appointments are concerned, appointment by promotion or by
transfer will stand to be governed by rules, including Rule 28
in Part II KS & SSR. Rule 28(b) provides for appointment by
promotion and by transfer. The provisions in Rule 28 deal with
appointment by transfer or by promotion from among the
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members of a service. A member of a service includes a
probationer, going by Rule 2(a) of Part I KS & SSR. The
suitability for full membership and satisfactory completion of
probation in terms of Rule 20 of Part II KS & SSR gives a
member of service the qualification of being a full member,
thereby meaning a member of that service who has been
appointed substantively to a permanent post borne on the
cadre thereof. This is the effect of the definition of the term
“full member” in Rule 2(7) of Part I KS &SSR. Bearing in mind
the nice distinction between a member of service and full
member, reverting to Rule 28, the inhibition that would work
against a person, who has not completed probation, would be
confined only as regards promotion and not as regards
appointment by transfer. In that view of the matter, insistence
on completion of probation in a category which falls within the
zone of consideration would not be relevant in a case of
appointment by transfer but would be relevant only in a case
where it is a feeder category for appointment by promotion. It
may be within the competence of the employer to prescribe
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completion of probation in a particular category as a condition
requisite for being considered for appointment by transfer
also. In the absence of any such prescription having been
made either in the Regulation or in the notification, selection
of Shibu Kumar cannot be faulted on that ground. Even if the
marks alloted to him, as shown in the credit sheet for LL.M.,
which qualification he did not possess, is deducted from the
total, he would not be upset by any other candidate on the
score card. Therefore, his selection also stands and would
have to be provisional subject to what is stated above as
regards the selection and appointment of the other three
candidates, since he also comes from the non-ministerial
category.
8.These leave for consideration the argument that the situation
in hand demonstrates nepotism and resultant arbitrariness in
the selection. The petitioners would contend that it is after
knowing the credentials and qualifications of the candidates
that the proforma score card was made out and published
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earmarking marks out of 100, for different qualifications.
Accordingly, it is argued that the very publication of such a
proforma marks card was itself an eye-wash and intended to
cover up the otherwise hidden agenda of making the selection
as has been done. It is argued that no such yardstick or
differentials in marks having been notified, it was
inappropriate and impermissible for the selection board to
have done that, that too, without any direction of the Board of
Directors of the Corporation. This argument has to be tested
on the probable results that would have occurred if the
proforma score card had not been published. 100 marks
would have then been exclusively available for the interview
board without any yardstick and if it were their intention to
distribute it at their sweet whims and fancies, it would have
only been easy for them to do it without prescribing the mark
card and publishing it even before the interview. The mere
publication of such a score card even before the interview, in
no manner demonstrates that the mind of the selection
committee was polluted or that their action is tainted.
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9. For the aforesaid reasons, the challenge against the selections
fails, the selection and appointment of Hena is upheld and it is
ordered that the appointment of the selected candidates would
remain provisional awaiting the concurrence of PSC for the
amendment to the Regulations regarding the inclusion of non-
ministerial candidates in the feeder category for Legal
Assistants. It is further directed that if that event does not
occur within a period of one year from now, the selection of
D.Shibu Kumar, N.Silendran and S.Radhakrishnan from among
the non-ministerial categories would stand cancelled by the
force of this judgment. These writ petitions are ordered
accordingly.
Sd/-
THOTTATHIL B.RADHAKRISHNAN,
Judge.
kkb.19/8.