IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 17TH MARCH 2011 / 26TH PHALGUNA 1932 WP(C).No. 4450 of 2011(E) -------------------------------------- PETITIONER(S): ---------------------- N.SILENDRAN,LEGAL ASSISTANT, KERLA STATE ROAD TRANSPORT CORPORATION,CHIEF OFFICE, FORT PO, THIRUVANANTHAPURAM 695 023,RESIDING AT 'SOUPARNIKA', TC.51/396(7),NEERAZHI LANE,PAPPANAMCODE, THIRUVANANTHAPURAM 695 018. BY ADVS. SRI.SAJEEV KUMAR K.GOPAL SMT.AMBIKA RADHAKRISHNAN RESPONDENT(S): ------------------------ 1. THE KERALA STATE ROAD TRANSPORT CORPORATION, REP.BY ITS CHAIRMAN AND MANAGING DIRECTOR,TRANSPORT BHAVAN, FORT PO, THIRUVANANTHAPURAM 695 023. 2. THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT PO, THIRUVANANTHAPURAM 695 023. 3. STATE OF KERALA,REP.BY SECRETARY TO GOVERNMENT, TRANSPORT (A) DEPARTMENT,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM 695 001. 4. N.JEEVAN,DEPUTY LAW OFFICER, (ON DEPUTATION),LAW DEPARTMENT,KERALA STATE ROAD TRANSPORT CORPORATION,TRANSPORT BHAVAN,FORT PO, THIRUVANANTHAPURAM 695 023. 5. P.S.SHYLA,DEPUTY LAW OFFICER (ON DEPUTATIION), LAW DEPARTMENT,KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT PO, THIRUVANANTHAPURAM 695 023. tss W.P.(C) NO.4450/2011 6. SMITHA ROSE FERNANDES,DEPUTY LAW OFFICER (ON DEPUTATIION), LAW DEPARTMENT,KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT PO, THIRUVANANTHAPURAM 695 023. 7. P.GIRIJA,DEPUTY LAW OFFICER (ON DEPUTATIION), LAW DEPARTMENT,KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT PO, THIRUVANANTHAPURAM 695 023. R1 & R2 BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR,SC, KSRTC R3 BY GOVT. PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss C.T.RAVIKUMAR, J. --------------------------------------- W.P(C)No.4450 of 2011 ---------------------------------------- Dated 17th March, 2011 JUDGMENT The petitioner who is working as Legal Assistant in the Kerala State Road Transport Corporation (for short `the Corporation') filed this writ petition mainly with the prayer to quash Ext.P9 and to issue a writ of mandamus commanding respondents 1 and 2 to promote the petitioner as Deputy Law Officer. Further prayer in this writ petition is as follows:- “issue a writ of mandamus or other appropriate writs, directions or orders directing the 3rd respondent to terminate the service of respondents 4 to 7 as Deputy Law Officer from KS.R.T.C. forthwith enabling the promotion of the petitioner to the post of Deputy Law Officer.” The contention of the petitioner is that the post of Legal Assistant is included in the feeder category for promotion to the post of Deputy Law Officer under the Corporation. He is sufficiently senior to be considered for promotion to the said post. However, respondents 4 to 7 are occupying the posts of Deputy Law Officer under the Corporation on deputation and hence no post is presently available for considering the claim of the petitioner for promotion. Respondents 4 to 7 are deputed to the Corporation as Deputy Law Officers as per Ext.P2 order dated WP(C).No.4450/2011 2 29.4.2010 from the Law Department. 2. The petitioner commenced his service under the Corporation as Conductor. At the time of entry in service he was possessing Post Graduation in Arts and also Masters Degree in Law. The Corporation invited applications on 15.12.2006 from among qualified employees under the Corporation possessing a recognized Degree in Law with specialization in Procedural Law for selection and appointment as Legal Assistant. The petitioner responded to the same. After a due selection process, the petitioner was appointed as Legal Assistant under the Corporation. The said appointment of the petitioner was unsuccessfully challenged by certain unsuccessful candidates by filing W.P.(C)Nos.12782 of 2007, 15920 of 2007 and 14611 of 2009. The said writ petitions were disposed of by a common judgment. This Court did not interfere with the selection process. However, it was held that the selection should remain provisional till concurrence from the Public Service Commission for the amendment to the Regulation regarding inclusion of non-managerial candidates in the feeder category for Legal Assistants is obtained. Further, it was observed therein that in case of no such approval occurred within a period of one year from the date of the judgment the selection of the petitioner and two others namely, Sri.D.Shibukumar and Sri.S.Radhakrishnan would stand cancelled by the aforesaid judgment. Feeling aggrieved by the said common judgment the WP(C).No.4450/2011 3 petitioner and others preferred appeals. Ext.P3 is the common judgment in W.A.Nos.70, 90, 93 and 94 of 2010 and 2425 of 2009. The operative portion of Ext.P3 judgment reads thus:- “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.2325 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 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.” 3. Later, the petitioner had approached this Court again by filing W.P.(C)No.14688 of 2010 with the prayer for a direction not to fill up the vacancy of Deputy Law Officer by way of deputation. Taking into account Ext.P3 judgment this Court directed the Corporation to consider the claim of the petitioner for promotion to the post of Deputy Law Officer in accordance with the relevant Regulations/Rules/Office Orders. Pursuant to the same, the representations submitted by the petitioner and the other petitioner in the said writ petition were considered. It was informed that the sanctioned strength of Deputy Law Officer in KSRTC is four and all the vacancies have been filled up by deputation from Law WP(C).No.4450/2011 4 Department. Evidently, as per Ext.P2, deputation was effected pursuant to the request made by the Corporation. The representation filed by the petitioner was disposed of, virtually rejected, citing the reason of non- existence of vacancies in the post of Deputy Law Officer and that the term of deputationists would expire only on 10.5.2011, as per Ext.P5. In short, the stand of the respondents is that presently there is no vacancy to consider the petitioner and against non-existent vacancies he could not be considered. Thereupon, the petitioner has filed W.P.(C)No.37452 of 2010. Ext.P6 is the interim order passed by this Court in the said writ petition on 17.12.2010. The said interim order which is relevant for the purpose of this case reads as follows: “There will be an interim order directing the second respondent to move the Government within two weeks from today to terminate the deputation of respondents 4 to 7 in order to enable the promotion of the petitioner and other Legal Assistants to the category of Deputy Law Officer. The competent authority in the Government shall upon receipt of such a request, take a decision in the matter within another two weeks and communicate the decision to the Managing Director of the Kerala State Road Transport Corporation.” The contention of the petitioner is that pursuant to the directions in Ext.P6 the second respondent submitted a request before the third respondent as per Ext.P7 to terminate the deputation of the four Section Officers who are deputed to the Corporation as per Ext.P2. Subsequent to Ext.P7, Ext.P8 was forwarded to the third respondent. In Ext.P8 it was WP(C).No.4450/2011 5 observed that termination of deputation of the four Section Officers would adversely affect the day today functioning of the Law Branch. The contention of the petitioner is that in the light of the directions in Ext.P6 the second respondent should not have forwarded Ext.P8 whilst, he should have restricted the request only for termination of respondents 4 to 7. After taking into consideration Exts.P7 and P8, Ext.P9 impugned order was passed on 28.1.2011. It is challenging Ext.P9 that this writ petition has been filed. 4. At the very outset, it is to be noted that the whole case is built based on the contention that the spirit of Ext.P6 interim order was not taken into consideration by the Corporation. The contention of the petitioner is that as per Ext.P6, this Court directed the Corporation to request for termination of the deputation of respondents 4 to 7. The writ petition is still pending. Apparently, the petitioner did not have a case that the direction in Ext.P6 order was willfully violated and that the respondents have violated the directions and admittedly, he did not move any contempt petition. Evidently, Ext.P6 is an interim order. Ext.P6 would reveal that no decision after considering the rival contentions was made therein. Therefore, the petitioner cannot be heard to contend that the rights of parties have been finally decided as per Ext.P6. No inhibition was imposed in the matter of consideration of the request for termination of the deputationists. At best it can be taken that such an order was WP(C).No.4450/2011 6 passed to enable the respondents to create an opportunity to consider the claim of the petitioner for promotion to the post of Deputy Law Officer, taking into account the non-availability of vacancies. Evidently, respondents 4 to 7 are holding the posts of Deputy Law Officers on deputation. Deputation was effected at the instance of the Corporation. There cannot be any doubt that in service parlance deputation is a recognized mode of transfer. Evidently, it is being resorted only in public interest and for reasons to be recorded in writing. In this case, deputation of respondents 4 to 7 were effected as per Ext.P2 and there is no challenge at all against Ext.P2 in this writ petition. I am of the view that, by virtue of Ext.P2, respondents 4 to 7 acquired the limited right to continue on deputation unless and until it is terminated by a valid order. The question is whether that right can be taken away at the instance of the petitioner. The grievance of the petitioner is that after issuing Ext.P7 request in terms of Ext.P6 order, the second respondent should not have forwarded Ext.P8. As per Ext.P8, the second respondent has only intimated the third respondent regarding the true state of affairs so as to enable the third respondent to decide on the question whether the public interest that existed at the time of issuance of Ext.P2 still exists or not and then to take a proper decision on the question of termination of deputation of respondents 4 to 7. I do not think that passing such information with respect to the true affairs of state and on a crucial WP(C).No.4450/2011 7 aspect cannot be taken as anything which is done in violation of the directions in Ext.P6. It is also to be noted that Ext.P2 order was, in fact, issued at the instance of the Corporation and therefore, the Corporation owes a duty to intimate the third respondent regarding the change in circumstances, if any, to safeguard the interest of the Corporation. 5. As per Ext.P9, the third respondent, taking note of the fact that deputation of respondents 4 to 7 would expire only on 10.5.2011 and that repatriation of respondents 4 to 7 would lead to administrative inconvenience and other complications in the Corporation rejected the request for cancellation of deputation. I do not find any illegality in the decision in Ext.P9 which calls for interference. As already noticed, the petitioner has not chosen to challenge Ext.P2. No provision has been brought to my notice to show that deputation to the post of Deputy Law Officer under the Corporation is permissible. So also, no provision has been brought to my notice that mandates for an automatic consideration of the petitioner for the above post merely because he satisfies the requirements for the post in the absence of vacancies. 6. The second prayer of the petitioner is for a direction to respondents 1 and 2 to promote the petitioner as Deputy Law Officer under the Corporation. There is no fundamental right to promotion. The deputation of respondents 4 to 7 was admittedly effected based on a request by the Corporation to the Government to depute competent WP(C).No.4450/2011 8 officers as Deputy Law Officers under the Corporation. The Corporation or the parent department cannot abruptly terminate the deputation based only on the request from the petitioner. Of course, it is permissible for the borrowing department to make request to the parent department requiring cancellation of the deputation as also the parent department to order repatriation of deputationists to the said department. That is not the contingency in this case. Here, the petitioner insists for termination of deputation of respondents 4 to 7 only for the purpose of getting consideration against for promotion to the post of Deputy Law Officer. In that context, it is also to be noted that a scanning of the contentions in the writ petition would not reveal the provisions of law regarding the method of recruitment to the said post. True that as per Ext.P4 this Court directed for consideration of the claim for promotion and later, as per Ext.P5 the representation therefor, was rejected on the ground of non-availability of vacancy in the category of Deputy Law Officer. There is no case for the petitioner that deputation is impermissible against the post of Deputy Law Officer. Admittedly, there is no vacancy available as on today against which the petitioner can be directed to be considered for promotion as Deputy Law Officer especially taking note of the fact that already the said posts are filled up by deputation as per Ext.P2. With respect to the last prayer for issuance of a writ of mandamus commanding the third respondent to terminate the service of WP(C).No.4450/2011 9 respondents 4 to 7 as Deputy Law Office, I am at a loss to understand under what jurisdiction this Court can issue such a direction to terminate the service of respondents 4 to 7 as Deputy Law Officers. In fact, I am of the view that the petitioner cannot legally sustain a claim that, as a matter of right, he should be promoted to the post of Deputy Law Officer after terminating the deputation of respondents 4 to 7. In the absence of any law to that effect, it is for the department to decide under what manner the different posts should be filled up. For all these reasons, I am not inclined to allow this writ petition. It is liable to be dismissed and accordingly, it is dismissed. However, it is made clear that dismissal of this writ petition will not stand in the way of the second respondent in taking appropriate steps for repatriating respondents 4 to 7 to their parent department, in accordance with law in case circumstances require repatriation. It will also be open to the respondents to consider the question whether any equated post is available for considering the claim for promotion of the petitioner who is due to retire from service on 31.3.2011. Sd/- C.T.RAVIKUMAR Judge TKS // true copy // P.S. to Judge