IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 25TH MAY 2011 / 4TH JYAISHTA 1933 WP(C).No. 1080 of 2009(C) ------------------------- PETITIONER(S): ----------------------- 1. AZEEZ P.A., S/O.HAMSA, DRIVER, THE KERALA STATE ROAD TRANSPORT CORPORATION, SULTHAN BATHERY DEPOT. 2. MUHAMMED, S/O.ALIKUTTY, DRIVER, THE KERALA STATE ROAD TRANSPORT CORPORATION, THAMARASSERY DEPOT. 3. T.T.FAIZAL, S/O.UMMER, DRIVER, THE KERALA STATE ROAD TRANSPORT CORPORATION, KALPETTA DEPOT. 4. N.T.YUSUF, S/O.ALI, DRIVER, THE KERALA STATE ROAD TRANSPORT CORPORATION, KALPETTA DEPOT. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENT(S): ------------------------- 1. THE KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 3. THE SENIOR EXECUTIVE DIRECTOR, THE KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM. *ADDL. R4 IMPLEADED *4. P. KUNHUMUHAMMED, S/O. SAIDALAVI, ANORAMMAL, KAITHAPOYIL, KOZHIKODE *ADDL. R4 IMPLEADED AS PER ORDER DT. 11.2.2010 IN I.A. NO. 1883/10. R1 & R3 BY ADVS. SRI.K.PRABHAKARAN, SC, K.S.R.T.C. SRI.V.V.NANDAGOPAL NAMBIAR, SC R2 BY ADVS. SRI.P.C.SASIDHARAN, SC, KPSC SRI. ALEXANDER THOMAS, SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 1080 of 2009(C) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE APPOINTMENTS ORDERS ISSUED TO THE PETITIONERS. EXT.P2 : COPY OF THE NON-CREAMY LAYER CERTIFICATES ISSUED TO THE PETITIONERS AND SUBMITTED BY THEM BEFORE THE 2ND RESPONDENT. EXT.P3 : COPY OF THE OBJECTION PREFERRED BY THE 3RD PETITIONER. EXT.P4 : COPY OF THE OBJECTION PREFERRED BY THE 4TH PETITIONER. EXT.P5 : COPY OF THE COMMUNICATION FROM THE 2ND RESPONDENT TO THE 1ST PETITIONER DATED 29-7-2008. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.A. TO JUDGE Mn C.T. RAVIKUMAR, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P.(C)No. 1080 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of May, 2011 J U D G M E N T The petitioners are presently working as Reserve Drivers under the Kerala State Road Transport Corporation (for short 'the Corporation'). They applied to the post of Reserve Drivers in response to the notification dated 23.6.1992 published by the Kerala Public Service Commission (for short “KPSC”). After conducting a due selection process a ranked list was published by the KPSC on 11.5.2000. Admittedly, the names of the petitioners were included in the said ranked list. After the publication of the said list of drivers, the Corporation requested the KPSC to advice candidates included in the list expeditiously. It is evident from the counter affidavit filed on behalf of the second respondent. As the reported vacancies outnumbered the candidates available in the list and taking into account the dearth of drivers in KPSC and the consequential urgency shown by the Corporation a provisional advice list was prepared and forwarded to the Corporation on 22.6.2000 by the KPSC WPC.1080/2009 : 2 : without working out rotation and observing rules of reservation. Advice memos were issued to the concerned candidates provisionally, and consequently the petitioners were given appointment by the Corporation. The first and second petitioners joined the service of the Corporation on 21.7.2000 and 24.7.2000 respectively. The 3rd respondent and the 4th respondent joined the service on the same day viz., on 23.7.2000. Later, the Commission forwarded a seniority list to the Managing Director of the Corporation on 10.2.2006. The petitioners were not assigned appropriate places, in accordance with the turn to which they are entitled in the light of the rules and reservations, in the said list. In the said circumstances the petitioners have taken up their grievances before the appellate authority. It is the contention of the petitioner that on account of deprivation of the benefit of rules of reservation they are not actually getting the service benefits to which they are legally entitled. Despite the receipt of representations the respondents did not care to consider the same. It was in the said circumstances that this writ petition has been filed. WPC.1080/2009 : 3 : 2. As already noticed hereinbefore, a counter affidavit has been filed by the second respondent. A separate counter affidavit has been filed on behalf of the first respondent. It is a common case that on account of the dearth of drivers shortly after the publication of the Ranked list a provisional advice list was prepared by the KPSC without working out rotation and observing rules of reservation. Under normal circumstances when a Ranked list is published advice will be effected by the KPSC against reported vacancies only after working out the rotation and observing rules of reservation. Thus, admittedly, the candidates from the ranked list were advised and appointed in to the service without working out rotation and observing the rules of reservation solely because of the urgent need expressed by the Corporation. This is an indisputable and undisputable position. Admittedly, the Commission worked out the rotation and observed the Rules of reservation only on 26.2.2004. It is the contention of the KPSC that on 26.2.2004 while working out of the rotation as per the rules, the candidates who have not produced Non Creamy Layer Certificate before the KPSC or Corporation were treated as WPC.1080/2009 : 4 : open candidates and they were advised against the OC turns. In that context, it is to be noted that there is no specific averment in the counter affidavit filed by the KPSC to the effect that for the purpose of ascertaining whether the petitioners have produced Non-Creamy Layer Certificate before the Corporation they have made appropriate enquiries with the Corporation. No materials have been produced before this court either by the Commission or by the Corporation to show that such an endeavour was made. This aspect assumes in the context of the specific contention of the petitioners that the Non-Creamy Layer Certificate(NCLC) produced by the petitioners were available with Corporation and are kept along with their Service Books. The fact that the petitioners are entitled to get the benefit of reservation on account of being members such backward communities is not disputed. The only question is whether they have produced the NCLC before the KPSC or Corporation prior to the preparation of the seniority list. As already noticed hereinbefore, there is no case for the KPSC that to ascertain whether the petitioners have produced NCLC before the WPC.1080/2009 : 5 : Corporation they had made enquiries with the Corporation and that the Corporation had failed to respond to it. Admittedly, the petitioners were inducted into the service of the Corporation without following the normal procedures. If the normal procedures were followed the petitioners would have been advised and appointed only after working out the rotation and also rules of reservation. Admittedly, they were given appointments after preparing provisional advice list only to serve the interest of the Corporation. There is no case for the respondents that the petitioners were given an intimation requiring them to intimate whether they have produced NCLC at any point of time either by the KPSC or by the Corporation. Admittedly, seniority list was forwarded to the Managing Director of the Corporation only on 10.2.2006. Based on the said list the Corporation has published a gradation list of drivers as on 1.1.2008. Taking into account the fact that upholding of the contentions of the petitioners in this writ petition may adversely affect others working in the same category of the reserve drivers under the Corporation notice was directed to be taken out through paper publication. In WPC.1080/2009 : 6 : fact, one Kunjumuhammed was impleaded as additional 4th respondent in the representative capacity. 3. The facts expatiated, earlier, would reveal that the crucial aspect whether the petitioners had produced NCLC before the Corporation was not ascertained before preparing the seniority list on 10.2.2006. I am of the view that such failures attributable to the KPSC or the Corporation cannot be worked out against the petitioners. In that view of the matter, the second respondent is bound to re-assign the seniority list after obtaining the NCLC produced by the petitioner before the Corporation. On receipt of NCLC produced by the petitioners before the Corporation the second respondent shall re-assign the seniority of the petitioners in the list after working out the rotation and also according to rules of reservation. This shall be done, expeditiously, at any rate, within a period of three months from the date of receipt of NCLC produced by the petitioner before the Corporation. After re-assigning the seniority the revised seniority list shall be forwarded by the KPSC to the Managing Director of the Corporation within three weeks thereafter. On its receipt the WPC.1080/2009 : 7 : first respondent shall look into the grievance of the petitioners and assign/re-assign the seniority of the petitioners appropriately, taking into account the seniority list to be forwarded to the first respondent by the second respondent, in terms of the directions. Thereafter, a list shall be published, in accordance with the relevant rules. Sd/- (C.T. RAVIKUMAR, JUDGE) jma //true copy// P.A to Judge