IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 WA.No. 70 of 2010() ------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.12782/2007 Dated 17/08/2009 .................... APPELLANT(S): 1ST RESPONDENT ---------------------------- THE KERALA STATE ROAD TRANSPORT CORPORATION, REP.BY ITS MANAGING DIRECTOR, TRANSPORT BHAVAN, FORT PO, THIRUVANANTHAPURAM. BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR,SC, KSRTC RESPONDENT(S): PETITIONERS/RESPONDENTS 2 TO 9 --------------------------------------------- 1. M.KESAVAN, CONDUCTOR SPECIAL GRADE, KSRTC, THIRUVANANTHAPURAM DEPOT. 2. R.VINAYAKAN NAIR, CONDUCTOR SPECIAL GRADE,KSRTC, THIRUVANANTHAPURAM DEPOT. 3. T.CHANDRANKUMAR, CONDUCTOR II GRADE ,KSRTC, THIRUVANANTHAPURAM DEPOT. 4. THE CHIEF PERSONNEL MANAGER-IN-CHARGE OF EXECUTIVE DIRECTOR(A)KSRTC,TRANSPORT BHAVAN, FORT PO. THIRUVANANTHAPURAM - 23. 5. THE EXECUTIVE DIRECTOR( (ADMINISTRATOR)-IN-CHARGE,THE CHIEF PERSONNEL MANA GER-IN-CHARGE OF KSRTC,FOR PO,THIRUVANANTHAPURAM.. 6. THE DISTRICT TRANSPORT OFFICER,KSRTC, THIRUVANANTHAPURAM DEPOT, THIRUVANANTHAPURAM, 7. D.SHIBU KUMAR, LEGAL ASSISTANT,KSRTC, CHIEF OFFICE, FORT PO, THIRUVANANTHAPURAM-23 8. N.SAILENDRAN, LEGAL ASSISTANT, KSRTC OFFICE, FORT PO, THIRUVANANTHAPURAM-23 9. S.RADHAKRISHNAN, LEGAL ASSISTANT, KSRTC OFFICE, FORT PO, THIRUVANANTHAPURAM-23 2 10. P.N.HENA, LEGAL ASSISTANT KSRTC, OFFICE, FORT PO, THIRUVANANTHAPURAM-23 11. SATHEESH KUMAR P.K, INSPECTOR, KSRTC ERNAKULAM DEPOT. ADV. SRI.C.A.CHACKO FOR R9 SRI.N.ANANDARAJAN FOR R1-3 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28/06/2010, ALONG WITH WA NOS. 90, 93, 94 OF 2010 & 2425/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.R. C .N. RAMACHANDRAN NAIR, & HARUN-UL-RASHID JJ. -------------------------------------------- W.A. Nos. 70,90,93, 94 of 2010 & 2425 of 2009 -------------------------------------------- Dated this the 28th day of June, 2010 JUDGMENT Ramachandran Nair, J. The only question raised in the connected Writ Appeals is whether under KSRTC Rules and Regulations post of Legal Assistant reserved for employees could be filled up from ministerial staff or from employees as a whole. Writ Petitioners have relied on Annexure A4 produced in W.A.No.90 of 2010 which is a resolution of the then Board of Directors of the KSRTC passed on 6.6.1979 wherein selection was from persons possessing qualification of degree in law in the ministerial staff. Later the Board vide Annexure A5 issued on 3.8.2000 decided to recruit legal assistants from internal candidates and Ext.P1 notification was issued calling for applications for appointment to the post of legal assistant from all employees of the KSRTC. The learned single Judge found that the decision of the Board in 1979 was a regulation which cannot be violated and so much so selection should be 2 from among members of the ministerial staff. In the selection made pursuant to Ext.P1 candidates both from the ministerial and non- ministerial branches of the KSRTC applied for the post and all of them underwent the selection process. It is pertinent to note that none of the candidates challenged the notification calling for applications for the post of legal assistant, that is Ext.P1 issued on 15.12.2006, wherein qualification for appointment was only employment in the active service of KSRTC and degree in law. However, after the selection process is over, some of the candidates from ministerial staff, who got enlisted down below in the rank list, filed WPCs challenging the whole selection process on the ground that those members of non-ministerial staff were ineligible to be considered. The learned single Judge based on Annexure A4 resolution of the Board passed in the year 1979 upheld the contention of the petitioners and directed the KSRTC to seek amendment of the regulation with the concurrence of the PSC. It is against this judgment, KSRTC and successful candidates filed Writ Appeals. We have heard standing counsel appearing for the KSRTC, senior counsel appearing for the appellants and counsel appearing for 3 the contesting respondents. 2. Senior counsel Sri. K. Radhakrishnan and standing counsel for KSRTC submitted that Annexure A4 relied on by the petitioners and accepted as regulation for appointment as legal assistant in KSRTC by the learned single Judge is not regulation at all. They have in fact produced copy of the regulations properly framed in the year 2009 with the approval of Government, wherein method of appointment is by transfer from among qualified employees of the KSRTC and direct recruitment through PSC. The contention of counsel for the respondents in the WAs. is that Annexure A4 was the decision taken by the Board of Directors of KSRTC and it will be applicable to all appointments to be made until regulations are framed in 2009. We are unable to accept this contention of the respondents for more than one reason. In the first place, the decision taken in the Board meeting held in 1979 is neither a regulation nor a rule of appointment to be applied for all appointments to come. Incidently if the said decision of the Board is taken as regulation, we have no doubt in our mind that it has to be declared arbitrary and untenable because of the hostile 4 discrimination of the similarly placed non-ministerial staff in relation to ministerial staff for appointment as legal assistant by transfer. We are not able to appreciate any difference between the two categories of equally qualified employees for the purpose of appointment to the post of legal assistant. Further regulations admittedly are framed in KSRTC with the approval of the Government for the first time in 2009 and copy of the same is produced before us. Even though rightly or wrongly the Board decided to recruit legal assistants only from ministerial staff in 1979, the same was given a go-by in 2000 when the Board decided to recruit legal assistants from all qualified employees. Further Ext. P1 notification issued in 2006 specifically lays down the condition for appointment as being a member in the active service of the KSRTC with law degree. In fact, none of the contesting respondents has chosen to contest the notification issued by KSRTC, namely, Ext.P1, on the ground that it is against the decision of the Board which is claimed to be regulation by them. It is only after making applications, participating in the selection process and after getting listed down below in the rank list, respondents have chosen to approach this Court 5 raising the contention that non-ministerial staff should be kept out of eligible category for selection. We see no merit in the contention because the decision of the Board taken in the year 1979 styled as regulation by them is not regulation at all and the learned single Judge wrongly assumed so without any reason. Though we feel Annexure A4 decision taken by the Board in 1979 is discriminatory, in view of the fact that it is later corrected by framing regulations giving opportunity to all eligible candidates to apply for the post, there is no need for us to go into the legality or otherwise of Annexure A4. 3. For the reasons stated above, we are not in a position to uphold the judgment of the learned single Judge. Accordingly we allow Writ Appeal Nos. 70, 90, 93 and 94 of 2010 by reversing the judgment of the learned single Judge and by upholding the selection made based on Ext.P1 notification. 4. In W.A.No. 2425 of 2009, besides supporting the judgment, the appellant has raised certain disputes with regard to eligibility of fifth respondent, who has been appointed. According to the appellant, fifth respondent was not a member in the active service of KSRTC 6 eligible to be considered for appointment. We do not notice any finding on this issue by the learned single Judge. Therefore this issue cannot be subject matter of Writ Appeal. Consequently this Writ Appeal is dismissed. (C.N.RAMACHANDRAN NAIR) Judge. (HARUN-UL-RASHID) Judge. kk 7