IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 12060 of 2006(I)
1. K.N.VENUGOPAL, AGED 49 YEARS,
... Petitioner
2. K.M.ABDUL AZEES, AGED 44 YEARS,
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. KERALA STATE ROAD TRANSPORT
3. KERALA PUBLIC SERVICE COMMISSION,
For Petitioner :SRI.T.M.RAMAN KARTHA
For Respondent :SRI.S.MUHAMMED HANEEFF
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :07/08/2009
O R D E R
THOTTATHIL B.RADHAKRISHNAN, J.
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W.P(C).Nos.12060, 12159, 12239, 12938
& 18872 OF 2006, 16895, 33847 &
37142 OF 2008 & 118 OF 2009
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Dated this the 7th day of August, 2009
JUDGMENT
“C.R.”
1. These writ petitions relate to the validity of “The Kerala State
Road Transport Corporation (Recruitment of Assistant
Transport Officers/Administrative Officers/Depot Engineers)
Regulations, 2003”, hereinafter, the ‘2003 Regulations’, issued
by the Kerala State Road Transport Corporation, the
‘Corporation’ for short, constituted under the provisions of the
Road Transport Corporation Act, 1950, hereinafter referred to
as the ‘RTC Act’. Among the captioned matters, W.P(C).118/09
is filed seeking a direction to carry on with and conclude the
selection process commenced in terms of those Regulations in
so far as it relates to the 15% quota earmarked for internal
recruitment from the Corporation employees, to the posts of
Assistant Transport Officers. Among others, W.P(C).
Nos.12938/06 and 37142/08 are filed challenging the
prescription of age limit of 40 years for recruitment of
WPC.12060/06 & con. Cases.
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Assistant Transport Officers towards that 15% by internal
recruitment. All the other writ petitions are filed by persons
who can aspire for appointment as Assistant Transport Officers
by promotion.
2.With the materials on record, including the pleadings of the
Kerala Public Service Commission, hereinafter, the ‘PSC’ for
short, I have heard learned counsel for parties in these
matters.
3.The challenge to the 2003 Regulations is on different grounds.
Firstly, it is contended that those regulations have been made
without the previous sanction of the State Government in
terms of Section 45(1) of the RTC Act as it then stood. It is
next contended that the PSC was not consulted though that
was a mandatory requirement. Thirdly, it is contended that
though, at that point of time, the issuance of notification and
its publication in the official gazette were not provided for, the
regulations cannot be made operational without them being
WPC.12060/06 & con. Cases.
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communicated, at least by circulars, to the employees of the
Corporation. It is further contended that the prescriptions
made in the 2003 Regulations are arbitrary and amount to
hostile discrimination of personnel who, as part of their
legitimate expectations, are awaiting avenues of promotion in
the regular stream. It is also pointed out that the prescription
of qualification has been so done that it is left to be vague to
provide fair room for colourable exercise of authority in
making the selection. The prescription of educational
qualification, without even stating that the qualification
prescribed should be from recognised university is criticized
as sufficient to show that the intentions behind the 2003
Regulations are oblique. In the two writ petitions challenging
the prescription of 40 years as the outer age limit for internal
recruitment from the employees of the Corporation, it is
contended that such a prescription is irrational and no object
could be legitimately treated as sought to be achieved by such
a prescription.
WPC.12060/06 & con. Cases.
Page numbers
4.In supporting the 2003 Regulations, the arguments advanced
are that consultation with the PSC is not mandatory, but only
directory, as would be discernible from a consideration of the
consultative process envisaged by Article 320 of the
Constitution of India and so is the manner in which Section 3
of the Kerala Public Service Commission (Additional Functions
as respects the Kerala State Road Transport Corporation) Act,
1970, hereinafter, the Additional Functions Act, is couched. It
is further argued that the object sought to be achieved by
making a provision for internal recruitment is to provide a fast
track stream to bring up competent, efficient and competitive
youngsters to the higher cadre in a manner conducive to boost
the growth of the establishment. It is also argued that
consultation may not be necessary since the field occupied by
the RTC Act is not one, over which, the State Legislature could
have transgressed and made the Additional Functions Act.
This submission is made notwithstanding that the Additional
Functions Act is not challenged in these writ petitions. It is
also argued that even before the writ petitions in hand were
WPC.12060/06 & con. Cases.
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filed, this Court had issued directions in W.P(C).No.727/06, on
25.1.2006, requiring the Corporation to proceed to make
selection and appointment to the internal recruitment quota.
It is argued that by virtue of those directions, the issue raised
regarding the sustainability of the provisions in the 2003
Regulations, in so far as they relate to internal recruitment,
stands concluded.
5.I may at once notice that in answer to the reliance placed on
the aforesaid judgment in W.P(C).727/06, the group aspiring
for regular promotion would contend but, at least in one writ
petition, W.P(C).30229/04, there was an interim order issued
on 14.10.2004, interdicting the operation of a notification
issued in terms of the 2003 Regulations. It has to be recalled
that the said writ petition was ultimately allowed by judgment
dated 26.11.2008 and that the subject matter of that writ
petition was confined to a notification issued by the
Corporation for direct recruitment in terms of the 2003
Regulations with the involvement of the PSC. This Court
WPC.12060/06 & con. Cases.
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referred to the above Additional Functions Act and clearly
indicated that no appointment of regular nature could be made
except in accordance with the provisions of that Act.
6.The Additional Functions Act was preceded by the Kerala
Public Service Commission (Additional Functions) Ordinance,
1969, under which, the Kerala Public Service Commission
(Consultation by KSRTC) Rules, 1969, hereinafter, the
‘Consultation Rules’, for short, was issued. It was thereafter,
while the Consultation Rules were in force, that the Additional
Functions Act came into force. By virtue of Section 5 of the
Additional Functions Act, notwithstanding the repeal of the
aforesaid Ordinance, the Consultation Rules survive. This
means that on and from the date of the coming into force of
the Additional Functions Act by its publication on 9.2.1970, the
Consultation Rules saved to continue to operate, as if they
were made under the provisions of the Additional Functions
Act.
WPC.12060/06 & con. Cases.
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7.On 7.2.1970, i.e., while the Ordinance was in force, and on the
day on which the Additional Functions Act received the assent
of the Governor, the Corporation issued an order through its
General Manager, in exercise of power under Section 3 of the
Ordinance, stating that in the matter of appointment by direct
recruitment to the Corporation enumerated thereunder, the
PSC shall be consulted. The post of Assistant Transport
Officer is at Sl.No.32 in that order.
8.The Additional Functions Act provides in Section 3(1) thereof
that the Corporation may consult the PSC on all matters
relating to the methods of recruitment of the officers and
servants of the Corporation other than the Chief Executive
Officer and the Chief Accounts Officer and on the principles to
be followed in making appointments by direct recruitment of
the officers and servants of the Corporation other than the
aforesaid excluded posts. Consultation is also provided as
regards the suitability of candidates for such appointments. In
arguments, enormous thrust was given to the use of the word
WPC.12060/06 & con. Cases.
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“may” in sub -section 1 of Section 3 of the Additional Functions
Act in contra-distinction to the use of the word “shall” in
Article 320 of the Constitution. It was also pointed out that the
Corporation being an authority under the RTC Act, which is a
piece of central legislation, consultation could not be
compelled and thrust on it by a State Legislation and it may be
therefore, that the word “may” is applied in Section 3(1) of the
Additional Functions Act so as to provide for consultation,
though it may not be mandatory.
9. This takes me to the provisions of the RTC Act. It contains
Section 3 providing for the establishment of Road Transport
Corporations. The power to establish a Corporation under the
RTC Act is with the State Government. Having regard to the
various elements that may flow into the decision making
process in terms of clauses (a) to (c) in Section 3, the State
Government may establish a Road Transport Corporation.
Section 5(2) provides that the Corporation shall have a Board
of Directors consisting of a Chairman and such other Directors
WPC.12060/06 & con. Cases.
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as the State Government may think fit to appoint. Section 5(3)
provides that the State Government may appoint the Vice
Chairman of the Board. It is the State Government which is
empowered as per Section 8 to remove the Chairman or
Directors of the Corporation from office. The State
Government is also empowered by Section 8(2) to terminate
the appointment of any Director after a notice period, though a
Director appointed with the concurrence of the Central
Government shall not be removed without the concurrence of
that Government. The Managing Director, Chief Accounts
Officer and Finance Adviser are to be appointed by the State
Government in terms of Section 14 of the RTC Act. These
provisions are noticed to reach Section 34 which provides the
State Government with the power to issue directions to the
Corporation. The State Government is empowered to issue
general directions including those relating to the recruitment,
conditions of service and training of its employees, wages to be
paid to the employees, reserves to be maintained by it and
disposal of its profits or stocks. The State Government are to
WPC.12060/06 & con. Cases.
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issue such directions after consulting the Corporation. When
directions are so issued, the Corporation is duty bound to
follow them and could deviate from that only with the previous
permission of the State Government, going by Sub-section 2 of
Section 34. This conspectus of the powers of the State
Government in the management of the Corporation is relevant
to decide the interest that the State Government has in
relation to the affairs of the Corporation. In this view of the
matter, reverting to the provisions of the Additional Functions
Act, it needs to be examined whether use of the word “may” by
the State Legislature in Section 3(1) is to be excused off as a
directory provision, or whether there is anything intrinsic in
the Additional Functions Act to hold that consultation is
inexcusably mandatory. Though Section 3(1) uses the word
“may” in relation to the provision for consultation, Section 4 of
that Act while conferring on the Government the power to
make rules in consultation with the PSC and the Corporation
for carrying out the purposes of the Additional Functions Act
provides in Section 4(2)(c) of that Act, in particular and
WPC.12060/06 & con. Cases.
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without prejudice to the generality of the provision in sub-
section 1 of Section 4, that Rules may provide for any matter in
respect of which it shall not be necessary to consult the PSC.
Though that provision, as it now stands, was brought in by the
Amending Act of 1990, it is deemed to have come into force on
9.2.1970, the date on which the Additional Functions Act was
published in the first instance. When Section 4 empowers the
Government to make a rule providing for any matter in respect
of which it shall not be necessary to consult the PSC, as a
necessary corollary, the legislature clearly intended that,
except in cases where the government makes such a rule, all
matters which fall under Section 3 are matters for mandatory
consultation. Therefore, the mere use of the word “may” in
Section 3(1) does not retain the need for consultation as a
directory requirement but provides that it is mandatory that
the PSC is consulted in relation to matters which fall under
Section 3, unless the State Government exercises the rule
making power in Section 4(2)(c) and thereby takes the way in
matters in respect of which it shall not be necessary to consult.
WPC.12060/06 & con. Cases.
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Even if two views are available in this context, this appears to
be the one that commends acceptance, having regard to the
public interest involved in the Road Transport Corporation and
the indisputable fact that service in the Road Transport
Corporation is public service.
10.With the aforesaid view in mind, it also needs to be noticed
that from 1970, posts of Assistant Transport Officers stood
enlisted for compulsory consultation in relation to selection
and appointment.
11.Another plea that requires consideration is as to whether the
2003 Regulations are bad for want of previous sanction of the
State Government in terms of Section 45(1) of the RTC Act.
While Section 45(1) provides for sanction of the Government
for the Corporation to make regulations, Section 34 (1) and (2)
of the RTC Act provide room for the Government to issue
directions of general nature, as already noticed, including on
matters affecting the conditions of service. These provisions
WPC.12060/06 & con. Cases.
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have to be read harmoniously because the ultimate object
sought to be achieved by providing such measures in the RTC
Act is to ensure that the Corporation does not do things at its
whims and fancies and the State Government does not issue
directions as an imposing big brother may do.
12.On facts, it needs to be remembered that the Government do
not as such confront the action taken by the Corporation and
the Corporation, on its own, does not beseech the directions, if
any, issued by the Government. I say this in the context of the
submission that the 2003 Regulations were generated by
certain advisory role played by the coalition of political parties,
which were the participants in the Government in power at the
point of time. But a close reading of the minutes of the
meeting of a committee, placed on record in one writ petition
would show that initially, there was a report by the Chief
Secretary to the Government of Kerala which, in turn, was
made available for consideration and views of the United
Democratic Front, the political coalition, which essentially
WPC.12060/06 & con. Cases.
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concurred with whatever the Chief Secretary had stated. In
the consultative process that the Chief Secretary had in the
process of making that report, the Corporation was also
consulted. Ultimately, nothing has turned out against the
larger public interest of the establishment, to hold that there
was either no consultation or that there was no previous
sanction in terms of Section 34 or 45 of the RTC Act. At any
rate, with the materials on record, such a plea is unavailable to
those challenging the 2003 Regulations.
13.Reverting to the ground reality on facts, as they now stand;
after the 2003 Regulations were issued, those aspiring for
internal recruitment had obtained a judgment from this Court,
in W.P(C).727/06, directing that the Corporation will expedite
the exercise of completing the selection. It has necessarily to
be presumed that by issuing that judgment, this Court never
intended to direct the commission of any illegality. Any
selection and appointment in relation to the internal
recruitment quota of 15%, even on the strength of that
WPC.12060/06 & con. Cases.
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judgment, could have been made only in accordance with law.
In so far as the direct recruitment quota of 25% is concerned,
the notification issued for such open market recruitment
otherwise than through the PSC, stands quashed by this Court
as per the judgment in W.P(C).6198/04. Contrasting the
regulations that already stands with the approval of the PSC, it
may even be possible to point out that the ratio has been
modified by the 2003 Regulations only to the extent it is
adverse to the interests of the inservice candidates who could
aspire for a fast track internal recruitment and upward
movement in the hierarchy. Whatever that be, as of now, the
fact remains that in making the 2003 Regulations, the PSC was
not consulted. Going by the materials on record, including the
plea of the Corporation, not only the PSC, but the State
Government also, insists for the consultation procedure to be
carried out. Having held above that consultation is mandatory,
if I were to answer the other incidental questions as to
probable arbitrariness or other grounds on which the 2003
Regulations have been challenged, that would only stultify the
WPC.12060/06 & con. Cases.
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consultation process and also deprive the parties to these writ
petitions from raising any grounds at a later point of time.
Though the PSC is also a constitutional authority, it would
stand bound by the verdict rendered by this Court touching
the validity of the legislative provisions.
14. It has also to be noted that as of now, there are only two
persons who have been appointed against the internal
recruitment quota of 15%, though others are pending for
consideration for recruitment following the selection process
for which notification was issued and applications invited.
One of them is stated to be in the border line of the outer age
limit prescribed for the recruitment of 15% from the
establishment.
15.Taking all the aforesaid factors into consideration, it is
ordered that the Corporation will immediately take up
necessary follow up action to commence and complete the
consultation process with the PSC. The State Government will
WPC.12060/06 & con. Cases.
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also do the needful and the PSC will ensure that such
proceedings are not held up having regard to the fact that the
regulations were conceived some time in 2003. As of now,
those who have been given the benefit of the 2003 Regulations
would continue to enjoy the same provisionally in terms of the
orders of appointment issued by the Managing Director in
their cases and any selection process could also be completed
as regards the 15% internal recruitment candidates and even
appointment orders could be issued however that, such
appointment orders and any incumbent joining duty in any
such posts, would be provisional and subject to review by the
Managing Director on the basis of the final outcome of the
consultation process. These writ petitions are ordered
accordingly.
Sd/-
THOTTATHIL B.RADHAKRISHNAN,
Judge.
kkb.11/8.