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2019 DIGILAW 109 (KER)

Antony Stejo J. v. State of Kerala

2019-02-04

R.NARAYANA PISHARADI, V.CHITAMBARESH

body2019
JUDGMENT : Chitambaresh, J. 1. We extract below the interim order dated 21.12.2018 passed in succession of the interim orders dated 3.12.2018, 6.12.2018 and 18.12.2018 in this bunch of writ appeals which is self explanatory. Interim order “i. It is a fact conceded that about 3808 candidates had been advised by the Kerala Public Service Commission (PSC) for appointment in the Kerala State Road Transport Corporation (KSRTC). The same was done well during the currency of the ranked list dated 9.5.2013 published by the PSC for the post of Reserved Conductor and the list expired later only on 31.12.2016. The PSC advisees could not have been kept waiting on tenterhooks for long by allowing the so called 'empanelled conductors' to occupy the vacant posts. The empanelled conductors are purely temporary hands appointed on ad-hoc basis through Employment Exchange earlier for a limited period of 180 days only. The employer KSRTC merrily allowed those temporary hands to continue even after the expiry of the stipulated period in blatant violation of the Service Rules governing them. A reference to Rule 9(a)(i) of Part II of the Kerala State & Subordinate Services Rules, 1959 (KS and SSR) and the provisos therein is apposite {See Radha v. District Medical Officer [ 2002 (2) KLT 711 (FB)]}. No other State Corporation permits the candidates sponsored by the Employment Exchange to overstay beyond the period of 180 days keeping the PSC advisees waiting for appointment to the post. ii. The recruitment to the posts in KSRTC is entrusted to the PSC by virtue of the Kerala Public Service Commission (Consultation by Kerala State Road Transport Corporation) Rules, 1969. There cannot be an alternate stream for recruitment by permitting the candidates sponsored by the Employment Exchange to overstay and regularising the employment. Bilateral agreements entered into by the KSRTC and the Trade Unions to regularise the appointment of such candidates fall foul of the Constitutional provisions. It is now reported that the services of all the empanelled conductors (totalling to about 4071 in number) whose services have not been regularised are dispensed with. This is after excluding those who are regularised as per the Government Order dated 21.11.2013 for having completed 10 years with a minimum of 120 duties in an year. It is now reported that the services of all the empanelled conductors (totalling to about 4071 in number) whose services have not been regularised are dispensed with. This is after excluding those who are regularised as per the Government Order dated 21.11.2013 for having completed 10 years with a minimum of 120 duties in an year. It is further submitted that KSRTC had directed the PSC advisees (totalling to about 4051 in number) to report in their Head Office yesterday to receive the order of posting. The action of the KSRTC to give posting to the PSC advisees after relieving the candidates sponsored by the Employment Exchange though done hesitatingly is proper. iii. The empanelled conductors urge that there may still be permanent vacancies after appointing the PSC advisees who turn up today or after receiving the written intimation sent by KSRTC. It was also stated at the Bar that about 800 permanent employees of the KSRTC are enjoying long vacation - probably Leave Without Allowance - which is abominable. It is up to the KSRTC to take immediate steps to notify the vacant posts and have the recruitment done by PSC to whom the task has been entrusted as per law. How to tide over the situation to operate the bus services till the recruitment through PSC is completed is the next question to be adverted to by the KSRTC in the circumstances. The KSRTC may either accept the candidates sponsored by the Employment Exchange anew or permit the requisite number of empanelled conductors to serve on ad-hoc basis till such time if law permits. The empanelled conductors and their Unions who have filed applications for impleading were also heard and they are impleaded as additional respondents in the appeals.” The Apex Court in SLP(Civil) No.410/2019 did not interfere with the interim order dated 6.12.2018 directing the KSRTC to dispense with the services of empanelled conductors to accommodate the PSC advisees. Statutory provisions 2. The legislature of a State may provide for the exercise of additional functions by the PSC as respects the services of any body corporate constituted by law under Article 321 of the Constitution of India. The Kerala Public Service Commission (Additional Functions as Respects the Kerala State Road Transport Corporation) Act, 1970 was enacted in exercise of that power. The legislature of a State may provide for the exercise of additional functions by the PSC as respects the services of any body corporate constituted by law under Article 321 of the Constitution of India. The Kerala Public Service Commission (Additional Functions as Respects the Kerala State Road Transport Corporation) Act, 1970 was enacted in exercise of that power. The KSRTC may consult the PSC on all matters relating to the methods of recruitment of its officers and servants including Conductor Grade II(Reserved Conductor). The matter shall be referred to the Government only if there is any difference of opinion between the PSC and KSRTC as per Section 3 of the aforesaid Act. The Kerala Public Service Commission (Consultation by Kerala State Road Transport Corporation) Rules, 1969 also operate as regards the manner and method of consultation. The ranked list has accordingly been published by the PSC for the post of Conductor Grade II from which advice was made to fill up the notified vacancies in KSRTC. 3. True it is that the KSRTC may appoint a person otherwise than in accordance with the above Rules temporarily to fill up a vacancy in a post immediately owing to an emergency under Rule 9(a)(i) of Part II of KS and SSR. However one of the provisos therein stipulates that a person so appointed to a post (other than teaching post and another) shall not be allowed to continue in such post for a period exceeding 180 days. Rule 9(2) of Part II of KS and SSR mandates that such a person shall not be allowed to continue in service in preference to a candidate advised by the PSC. One of the provisos to Rule 9(3) of Part II of KS and SSR is categoric that a person discharged from service after the admissible period shall not be re-appointed to the same post. The appointing authority can do so only when fresh candidates are not available for appointment through Employment Exchange which shall be made with the concurrence of the PSC. Rule 9(3)(iii) of Part II of KS and SSR is specific that a person appointed under this clause shall be replaced as soon as possible by an approved candidate qualified to hold the post under the Rules. 4. Rule 9(3)(iii) of Part II of KS and SSR is specific that a person appointed under this clause shall be replaced as soon as possible by an approved candidate qualified to hold the post under the Rules. 4. It is worth quoting Rule 9(3)(iv) of Part II of KS and SSR since the persons appointed through the Employment Exchange stake a preferential claim to future appointment: “(iv) A person appointed under clause (i) or (ii) shall not be regarded as a probationer in such service, class or category or be entitled by reason only of such appointment to any preferential claim to future appointment to such service, class or category.” Neither can the empanelled conductors be regarded as probationers in the service of the KSRTC nor are they entitled to any preferential claim to future appointment in the same cadre. The mere fact that some of the orders of appointment do not specify the period as 180 days or specify as daily wages is immaterial when the persons have been sponsored by the Employment Exchange only. Nor can the appointment be termed as falling under Rule 9A of Part II of KS and SSR in the absence of any express agreement between the KSRTC and the persons sponsored by the Employment Exchange. Precedents 5.(i) V. Sreenivasa Reddy and others v. Govt. of A.P. and others [1995 Supp.(1) SCC 572]: “The temporary appointees cannot be put on a higher pedestal over the PSC candidates who stood the test of merit and became successful and secured ranking according to the merit in the approved list of the candidates prepared by the PSC.” (ii) K.P.S.C. Reserve Conductors Rank Holders Assn. & Ors. v. State [ 1996(2) KLT 306 (DB)]: “So, there are persons chosen by the Public Service Commission for being recruited to the post of conductor on regular basis. & Ors. v. State [ 1996(2) KLT 306 (DB)]: “So, there are persons chosen by the Public Service Commission for being recruited to the post of conductor on regular basis. When such candidates are available, the provisional employees and the empanelled conductors have to vacate their posts for giving room to accommodate regular hands.” (iii) Excise Superintendent, Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao and others [ (1996) 6 SCC 216 ]: “Better view appears to be that it should be mandatory for the requisitioning authority/establishment to intimate the employment exchange, and the employment exchange should sponsor the names of the candidates to the requisitioning departments for selection strictly according to seniority and reservation, as per requisition.” (iv) State of Kerala and others v. Jyothi S.S. and others [ILR 2002(2) Kerala 341]: “We may remind the constitutional obligation of the State Government to fill up substantive posts on a regular basis rather than allowing the provisional hands to continue for years to come. We find provisional hands are continuing for number of years....... We remind the Government that any order of absorption and regularisation of a provisional employee appointed not in accordance with the rules would result in denial of equal opportunity in the matter of employment to other eligible candidates for public employment.” (v) Radha v. District Medical Officer [ 2002(2) KLT 711 (FB)]: “The cumulative effect of the main part of R.9(a)(i) along with second, fifth and ninth provisos thereto, according to us, is that no temporary employee appointed under R.9(a)(i) can be allowed to continue as such beyond the period specified in the second and fifth provisos that they must be discharged from service on the expiry of the period for which they are appointed. This is a mandate of the Rule. The only exception is the non-availability of fresh candidates for appointment through Employment Exchange in which case re-appointment of such temporary employees can be made with the prior concurrence of the Public Service Commission. If this is the scheme of the provisions of R.9(a)(i) of Part II of the Rules there is no difficulty in understanding the scope of the provisions of R.9(a)(iii) of the Rules.” Factual matrix 6. If this is the scheme of the provisions of R.9(a)(i) of Part II of the Rules there is no difficulty in understanding the scope of the provisions of R.9(a)(iii) of the Rules.” Factual matrix 6. A specific query was put to the KSRTC by interim order dated 7.1.2019 as to how many substantive vacancies still exist in the post of Conductor Grade II and whether steps are being taken to notify the same. It is distressing to note that a very evasive reply has been furnished by the KSRTC by means of an affidavit dated 15.1.2019 of its Deputy Law Officer which reads as follows: “It is submitted that steps are being taken by the Respondent Corporation to collect the details of the Conductors who are on leave or have sought extension of the same due to maternity leave or other reasons. Once the Conductors on leave return for duty, the actual number of substantive vacancies can be determined. With regard to reporting of the substantive vacancies to the PSC, the same depends on the requirement of conductors since there is a proposal to ply buses without conductors. Further, the Respondent Corporation is in the process of restructuring by reducing manpower as recommended by Susheel Khanna report. Hence, the number of substantive vacancies can be determined only after the said exercise is carried out.” Any substantive vacancies in the post of Conductor Grade II after its ascertainment within a time frame can only be filled up through the PSC or by persons sponsored by the Employment Exchange. The same shall however be strictly in accordance with the provisions of KS and SSR for the period permitted and that too temporarily till the exercise by the PSC is complete. The preparation of the ranked list by the PSC is an on-going process started on receipt of intimation of substantive vacancies from the KSRTC in the post of Conductor Grade II. Arguments 7. The provisional appointees (empanelled conductors) urge that they have been permitted to work for long and that their services should be regularised relying on State of Karnataka v. Umadevi(3) [ (2006) 4 SCC 1 ]. Such a contention cannot be countenanced when their appointment is for a specified period and they were sponsored by the Employment Exchange. Arguments 7. The provisional appointees (empanelled conductors) urge that they have been permitted to work for long and that their services should be regularised relying on State of Karnataka v. Umadevi(3) [ (2006) 4 SCC 1 ]. Such a contention cannot be countenanced when their appointment is for a specified period and they were sponsored by the Employment Exchange. Their service is strictly governed by the provisions of KS and SSR and the appointment cannot be said to be irregular for it to be regularised applying Umadevi's case. The empanelled conductors also rely on a bipartite settlement alleged to have been entered into between the KSRTC and the various trade unions. The bipartite settlement is only to the effect that the Government would be moved for regularisation of the services of the empanelled conductors and nothing more. Such clauses in the settlements cannot be given effect to when they are against the explicit provisions of KS and SSR and deny public employment for the eligible. 8. It is pointed out that the empanelled employees were not even paid the minimum wages during their tenure of service and that it amounts to forced labour by the employer-KSRTC. Nobody compelled them to work for the alleged inadequate wages and this proceeding is certainly not the apt one for ventilation of their grievances against the KSRTC. The empanelled conductors added that the termination of their services without complying with the Industrial Disputes Act, 1947 amounts to unfair labour practice. It is for them to move the Industrial and Labour Courts for alleged violation of the statutory provisions in that regard and the writ court is certainly not the proper forum. Conclusion 9. We have adverted to the rights and privileges claimed by the empanelled conductors only to vindicate the stand of the PSC advisees that they are placed on a higher pedestal entitled to be appointed. The KSRTC has been giving a false hope to the empanelled conductors appointed provisionally by allowing them to cling on much to the prejudice of the PSC advisees. The appellants who are PSC advisees would not have been appointed by the KSRTC after relieving the empanelled conductors but for the interim orders afore stated. The decision in K.P.S.C. Reserve Conductors Rank Holders Assn.'s case (supra) is binding on the KSRTC and any deviation there from is impermissible. The appellants who are PSC advisees would not have been appointed by the KSRTC after relieving the empanelled conductors but for the interim orders afore stated. The decision in K.P.S.C. Reserve Conductors Rank Holders Assn.'s case (supra) is binding on the KSRTC and any deviation there from is impermissible. The impugned judgment dismissing the writ petitions filed by the PSC advisees on the ground that substantive vacancies have not been established in the post is set aside. The writ appeals are allowed. No costs.