High Court Kerala High Court

M.Kesavan vs The Kerala State Road Transport on 17 August, 2009

Kerala High Court
M.Kesavan vs The Kerala State Road Transport on 17 August, 2009
       

  

  

 
 
  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.
                 -------------------------------------------
             W.P(C).Nos.12782 & 15920 OF 2007
                        & 14611 OF 2009
                 -------------------------------------------
            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

WPC.12782/07 & con. cases

Page numbers

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

WPC.12782/07 & con. cases

Page numbers

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

WPC.12782/07 & con. cases

Page numbers

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

WPC.12782/07 & con. cases

Page numbers

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

WPC.12782/07 & con. cases

Page numbers

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

WPC.12782/07 & con. cases

Page numbers

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

WPC.12782/07 & con. cases

Page numbers

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

WPC.12782/07 & con. cases

Page numbers

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

WPC.12782/07 & con. cases

Page numbers

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

WPC.12782/07 & con. cases

Page numbers

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

WPC.12782/07 & con. cases

Page numbers

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.

WPC.12782/07 & con. cases

Page numbers

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.