C. Sadasivan Pillai v. State — 1992 DIGILAW 9 (KER)

JUDGMENT M. Jagannadha Rao, C. J 1. This appeal is preferred by 11 petitioners and the Kerala State Road Transport Corporation Provisional Conductors Union against the judgment of the learned Single Judge in O.P. No. 13390 of 1991-R dated 20-12-1991, by which the Writ Petition was dismissed. The relief claimed in the Writ Petition was for the issue of a writ of mandamus directing the Kerala State Road Transport Corporation (2nd respondent) to regularise the service of petitioners 1 to 11 and other similarly situated persons who are members of the 12th petitioner - union in the post of Conductor in the above said Corporation. A further mandamus is sought for restraining the Corporation from terminating the services of petitioners 1 to 11, and other similarly situated persons, who are members of the 12th petitioner union. 2. Petitioners 1 to 11, and members of the 12th petitioner union were originally appointed as conductors provisionally in the Corporation In 1979. They continued In service for about 9 months continuously, and were later reemployed in service in 1983, and they continued uninterruptedly for a period of four years till 1987. On 27-8-1987 the services of petitioners 1 to 11 were terminated, but petitioners 1 to 11 were once again reemployed by the Corporation from 27-8-1990. Petitioners 1 to 11 were in service at the time when the writ Petition was filed, and they sought the relief of regularisation of their service. They contended that there are 750 vacancies in the post of Conductor, and that even if the public service commission recommends certain candidates to be appointed A as conductors, there would still be vacancies to accommodate the petitioners. It is stated that the petitioners are fully qualified to hold the post of Conductor, and have long experience. It is stated that Art.14 and 21 will be violated, if the petitioners' services were not regularised. The learned Single Judge dismissed the Writ Petition stating that the petitioners cannot prevent the Corporation from making appointments through the Kerala Public Service Commission. Merely because the petitioners and some others were appointed as provisional conductors in the Corporation, they do not get any superior right to prevent the regular hands selected by the Public Service Commission being appointed. The learned Single Judge dismissed the Writ Petition stating that the petitioners cannot prevent the Corporation from making appointments through the Kerala Public Service Commission. Merely because the petitioners and some others were appointed as provisional conductors in the Corporation, they do not get any superior right to prevent the regular hands selected by the Public Service Commission being appointed. The learned Single Judge further held that if the request of the petitioners is allowed, it would virtually result in the denial of job to those persons who have been selected by the Public Service Commission after a written test and interview. The Writ Petition was therefore dismissed in limine. 3. In this appeal, learned counsel for the appellants - petitioners, Shri N. Nandakumara Menon, contended that this Court under Art.226 of the Constitution of India can direct that petitioners 1 to 11, and members of the 12th petitioner, will be regularised on account of their long service. He contended that at any rate this Court could direct the Corporation to have the services of the petitioners regularised through the Public Service q Commission. Four decisions of the Supreme Court have been relied upon for contending that this Court can issue a direction that by framing a scheme, the services of casual employees will be regularised. 4. In so far as the procedure for regular appointment is concerned, it is not in dispute that the same is governed by the provisions of the Kerala Public Service Commission (Additional Functions as Respects the Kerala State Road Transport Corporation) Act, 1970. That is an Act to provide for the exercise of certain additional functions by the Kerala Public Service Commission as respects the services of the Kerala State Road Transport Corporation. S.3 of the Act states: "(1) The Corporation may consult the Public Service Commission. - (a) on all matters relating to the methods of recruitment of the officers and servants of the Corporation other than the Chief Executive Officer or General Manager and the Chief Accounts Officer." The Corporation may also consult the Public Service Commission under S.3(1)(b) in respect of the principles to be followed in making appointments by direct recruitment of the officers and servants of the Corporation other than the Chief Executive Officer or General Manager and the Chief Accounts Officer, and on the suitability of candidates for such appointments. Sub-s.(2) of S.3 states that where the Public A Service Commission is consulted on any matter under sub-s.(1) it shall be the duty of the Commission to advise the Corporation on that matter. S.4 provides for making of the rules. The Kerala Public Service Commission (Consultation by Kerala State Road Transport Corporation) Rules, 1969, which were issued under S.4(2) of the Ordinance, which preceded the above said Act, mention the procedure for reference to the Kerala Public Service Commission and for receiving the advice tendered by the Public Service Commission. It is not in dispute that the conductors in the Corporation have to be recruited through the Public Service Commission. It is also admitted before us that some of the petitioners have crossed the age of 35, which is the maximum age for recruitment as Conductors. 5. In our view, the petitioners cannot seek a writ of mandamus from this Court under Art.226 of the Constitution of India directing the Corporation to regularise the services of the petitioners, without reference to the Public Service Commission. The contention that there are sufficient number of posts, which could accommodate not only candidates advised by the Public Service Commission, but also petitioners, cannot be accepted inasmuch as the only mode of regular recruitment is through the Public Service Commission. If the contention of the petitioners is to be accepted, it will result in the denial of appointment to several other eligible candidates who are below the maximum age for recruitment, and who will pass the relevant test to be conducted by the Public Service Commission In the statutory rules, there is a particular mode for recruitment of conductors on a regular basis. It will not be permissible for this Court to by - pass the said procedure, and direct the Corporation to regularise the services of the petitioners. 6. The learned counsel, however, referred to four decisions of the Supreme Court. The first decision is the one in Daily R. C. Labour, P & T Department v. Union of India AIR 1987 SC 2342 . That case related to daily rated casual labour in the P & T Department. Apart from the question of wages payable, the question of regularisation was also considered by the Supreme Court. The first decision is the one in Daily R. C. Labour, P & T Department v. Union of India AIR 1987 SC 2342 . That case related to daily rated casual labour in the P & T Department. Apart from the question of wages payable, the question of regularisation was also considered by the Supreme Court. Their Lordships gave a direction to respondents in that case to prepare a scheme on a rationale basis for absorbing as far as possible the casual labourers who have been continuously working for more than one year in the Posts and Telegraphs Department. In our view the said decision is clearly distinguishable. In that case the Supreme Court was not concerned with a situation where there were statutory rules governing the procedure for regular recruitment. A reading of the said judgment does not disclose that there were any such rules. That case is therefore no authority for holding that this Court could under Art.226 E of the Constitution issue a direction to the Corporation for regularisation of the services of the petitioners in a manner which is not contemplated by the statutory rules. The decision in U. P. I. T. Department, C. P. S. W. Association v. Union of India, AIR 1988 SC 517 is also a similar case. The only difference is that this case related to class IV employees in the Income Tax Department. That case is not one where there is a particular mode of recruitment by statutory rules such as by the Public Service Commission. The decision in Bhagwati Prasad v. Delhi State Mineral Development Corporation, 1990 (1) SCC 361 is again a case relating to daily rated workers in the Delhi State Mineral Development Corporation. In that case the Supreme Court directly referred the matter to the Industrial Tribunal for an enquiry as to the service conditions of the employees, and issued certain directions relating to regularisation. That is also not a case where the recruitment was governed by any particular procedure. The learned counsel then relied upon the decision in Dharwad District P. W. D. L. D. W. Assocn. v. State of Karnataka, AIR 1990 SC 883 . That case related to daily rated and monthly rated employees in various establishments and local bodies. The Supreme Court gave certain directions in regard to absorption of the said employees. The learned counsel then relied upon the decision in Dharwad District P. W. D. L. D. W. Assocn. v. State of Karnataka, AIR 1990 SC 883 . That case related to daily rated and monthly rated employees in various establishments and local bodies. The Supreme Court gave certain directions in regard to absorption of the said employees. The Supreme Court referred to the Karnataka State Civil Services (Special Recruitment of the Candidate) rules, 1986, which came into effect on 2-7-1986, but stated that the ambit of the present dispute before the Supreme Court was not in any manner affected by the said Rules. In the present case the position is entirely different, inasmuch as there are statutory rules governing regular recruitment. 7. For the aforesaid reasons, we confirm the decision of the learned Single Judge, and dismiss the Writ Appeal.