IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 24TH JUNE 2008 / 3RD ASHADHA 1930 WA.No. 1264 of 2007 ---------------------------- AGAINST THE JUDGEMENT IN W.P.(C).NO.26022/2005 DATED 06/03/2007 .................... APPELLANT/ PETITIONER: -------------------------------------- C.R.GIRI, `USHUS', CHIRAYILKULAM, PATTATHANAM P.O.,KOLLAM. BY ADV. DR.K.P.SATHEESAN, SRI.K.K.GOPINATHAN NAIR, SRI.M.R.JAYAPRASAD, SRI.K.K.RAJEEV. RESPONDENTS: ----------------------- 1. KERALA STATE ROAD TRANSPORT CORPORATION, (K.S.R.T.C. IN SHORT),REPRESENTED BY ITS MANAGING DIRECTOR, TRANSPORT BHAVAN, THIRUVANANTHAPURAM. 2. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, P.S.C. OFFICE, PATTOM,THIRUVANANTHAPURAM. BY ADV. SRI.K.PRABHAKARAN, SC, K.S.R.T.C, ADV. SRI.ALEXANDER THOMAS, SC, K.P.S.C. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON ON 24/06/2008, ALONG WITH W.A NO. 1631/2007 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & P.N.RAVINDRAN, JJ. --------------------------------------------- W.A.Nos.1264, 1631, 1674, 1693 & 1899 OF 2007 --------------------------------------------- Dated 24th June, 2008 JUDGMENT Koshy,J . These writ appeals relate to appointment of conductors in The Kerala State Road Transport Corporation (KSRTC). For a number of years there are complaints that backdoor appointments are made by the KSRTC on provisional basis or empanelled basis or contract basis so as to avoid appointment as per rules through Public Service Commission. General complaint is that they will not report vacancies when rank list is in force. Before expiry of the rank list and before making next selection, large number of conductors are being appointed through backdoor method, on daily basis etc. and later some of them are regularised. Even when rank list is alive such appointments are made ignoring the claims of candidates selected by P.S.C. The matter came up before this court earlier and it was considered in detail by a Division Bench of this court in Kerala Public Service Commission Reserve Conductors Rank Holders Association and Others v. State (1996 (2) KLT 306). In the above decision it was observed as follows: W.A.1264/2007 & connected cases 2 “After publishing rank list by P.S.C., Corporation resorted to engagement of provisional hands – The procedure is violative of Articles 14 and 16 of the Constitution of India .................... Appointment of provisional Conductors and Empanelled Conductors engaged by the Kerala State Road Transport Corporation for more than 240 days during a calendar year which continued for more than three years – In such circumstances it could be presumed that there exists regular vacancy in the Corporation.” Further in paragraphs 12 and 13 it was held as follows: “12. Establishment of independent body, like Public Service Commission, for selection to the posts under the Corporation was to avoid arbitrariness and nepotism in the matter of appointment. Corporation should not have resorted to appoint any person as conductor whose name does not appear in the list prepared by the Public Service Commission. In the decision referred to earlier (AIR 1994 SC 1808). Their Lordships observed:- “When the Rules prescribe direct recruitment, every eligible candidate is entitled to be considered and recruitment by open advertisement which is one of the well accepted modes of recruitment. Inviting applications for recruitment to fill in notified vacancies is consistent with the right to apply for by qualified and eligible persons and consideration of their claim to an office or post under the State is a guaranteed right given under Articles 14 and 16 of the Constitution.” W.A.1264/2007 & connected cases 3 Their Lordships further observed that all efforts should be made to replace the ad hoc or temporary employees by regularly selected employees as early as possible. Appointment of regular selected candidates, it was observed, cannot be withheld or kept in abeyance for the same of an ad hoc or temporary employee. An ad hoc or temporary employee should not be replaced by another temporary or ad hoc employee. He must be replaced only by a regularly selected employee. The ad hoc appointment should not be a device to circumvent the rule of reservation. Kerala State Road Transport Corporation has no case that while making appointments of temporary conductors or empanelled conductors any principle of reservation was followed by them. Their appointments, on the materials now placed before Court, were resorted to inflagrant violation of the principles contained in Articles 14 and 16 of the Constitution. No rhyme or reason is discernible to support the action resorted to by the Corporation. 13. In view of what has been stated above, we are clear in our mind that the practice adopted by the Corporation in engaging provisional conductors and empanelled conductors in the service was arbitrary and in violation of all canons of service rules. The Corporation is, therefore, directed to report the existing vacancies of conductors to the Public Service Commission within two weeks from today. On getting the vacancies so reported, Public Service Commission must advise candidates from the list that was published on 18.5.1992 in accordance with Rules 14 to 17 of Kerala State and Subordinate Services Rules to the Corporation within one month from the date of receipt of the letter from the Corporation. As and when the candidates report for duty on the advice of the Public Service Commission, the ad hoc appointees, namely the provisional employees and empanelled employees, must be sent out of employment. After reporting the vacancies as directed above, we direct the Corporation not to have any empanelled conductor or provisional conductor in its service W.A.1264/2007 & connected cases 4 while persons included in the ranked list are being kept out. If the candidates included in the ranked list are not adjusted against the regular vacancies or substantive vacancies and they are being engaged in the place of the provisional conductors or empanelled conductors, such candidates, who are so engaged, will not be having the right of regularization by the mere fact that they are so engaged because of the fact that once they were included in the ranked list and were provisionally engaged. The orders relating to empanelment will stand quashed in view of the specific direction given above. If after exhausting the candidates included in the ranked list published by the Public Service Commission there still remain any vacancies, to those vacancies the Corporation will be at liberty to appoint temporary hands as per the provisions contained in R.9 of Kerala State and Subordinate Service Rules. The provisions contained in the KS & SSR are applicable to the service under the Corporation” Despite the above decision, KSRTC continued this practice in reporting vacancies even when the rank list was alive. At the time of passing interim order on 1.11.2006, the learned Judge noticed as follows: “The case consistently set up by the KSRTC in the statements and the affidavit filed by the Executive Director (Operations) is that there should be 10175 conductors and as on 4.12.2004 there were 9953 conductors working. Out of the same, it is stated that there are 7011 permanent conductors and there are 2542 conductors who were appointed as provisional conductors who were later on appointed on regular basis. In the statement dated 2.3.2006 W.A.1264/2007 & connected cases 5 it is stated that there were 640 vacancies of conductors and they were reported. Appointments were also made against another 352 vacancies, it is stated, which were reported. 2. However, I note on the basis of Annexure LX in W.P.(C) 28746 of 2004 produced that persons were appointed as provisional conductors in January, 2005. Likewise, as is clear from the counter affidavit filed by the Public Service Commission that 719 fresh vacancies were reported vide letter dated 30.9.2004. Date of advice is shown as 5.11.2004. Annexure IX appointment refers to said advice. 276 fresh vacancies were reported on 4.12.2004 and advice is seen made on 31.3.2005. The same is the case of 364 NJD vacancies. Again with regard to 352 vacancies reported on 15.12.2004, the date of advice is shown as 31.3.2005. In such circumstances, prima facie it is clear that the statements made in the affidavits filed on behalf of the Corporation to the effect that there were 2542 permanent conductors, who were made up of provisional conductors appointed on advice of the PSC as on 4.12.2004 is incorrect. In the counter affidavit dated 20.10.2004 filed by the Corporation it is stated as follows: “All the PSC empanelled conductors in service are appointed up to 5.10.2004 are absorbed as reserve conductors in regular service.” If that be so, the figure 7011 shown as permanent conductors would take in all the conductors who were already permanent and who were appointed provisionally and later on absorbed as permanent as on that day. If that be so, the number of conductors shown as 2542 as provisional conductors who were later absorbed cannot be correct. 3. Learned counsel for the Corporation would submit that he will place an affidavit on record explaining these serious discrepancies in the affidavits. I would prima W.A.1264/2007 & connected cases 6 facie be inclined to think that the statements are statements which are false. However, I feel that an opportunity should be given to the Corporation to clarify these aspects. In particular it shall be stated as to when the 2542 provisional conductors who are alleged to have been later absorbed and working as permanent conductors as on 4.12.2004 were appointed as provisional conductors and when they were absorbed. The affidavit shall be filed by the Executive Director who filed the earlier affidavits on or before 8.11.2006. Post on 8.11.2006.” A reading of the affidavits shows that KSRTC was not consistent and there is an effort to conceal the actual facts. According to the Corporation, as on 1.1.2005 at the time of expiry of rank list conductors required was 3969 and for maintaining ratio of 2.75 conductors per schedule, there must be 10915 conductors and admittedly even according to the Corporation there was deficiency of 1362 conductors on the date of expiry of rank list. But, the number of conductors shown as permanent conductors is also not correct. The learned Judge in the final judgment directed to give advice of 869 conductors as Reserve Conductors and that was reported. A Division Bench of this court on 2nd November, 2007 directed the KSRTC to file a statement showing the number of daily rated reserved Conductors working in the Corporation and how many persons were regularized recently and how long they are working in the Corporation. Since no W.A.1264/2007 & connected cases 7 statement was filed, again orders were passed and finally a statement was filed. Even accepting their statement, it is stated that as directed in the impugned judgment, PSC advised 869 candidates for appointment out of which 288 candidates reported for duty and 581 NJD vacancies were reported from the rank list which expired on 31.12.2003. According to them, for the period of 2005-2007, 4836 vacancies of Reserve Conductors arose. At present 1373 conductors are engaged on daily wages from the unadvised list of the Public Service Commission and 1857 daily wage conductors are engaged through employment exchange and another 1887 empanelled conductors are engaged by open source. Therefore, 5117 conductors are working in the KSRTC on daily wages. Even though by interim order, learned single Judge directed to report 2564 vacancies, Corporation reported only 2212 vacancies out of which 869 vacancies were directed to be advised by the impugned judgment. Considering the number of empanelled conductors, employment exchange conductors and conductors appointed through open source etc. as existed on 31.12.2004 and considering the vacancies, we are of the opinion that at least 2212 vacancies should have been appointed from the list as those vacancies arose before the expiry of rank list on 31.12.2004. Even though more than 5,000 vacancies are still existing, at present there is no list and it is submitted that it will take W.A.1264/2007 & connected cases 8 long time to finalise the list as notification is published only now. Though 2212 vacancies were reported, only 869 were advised as per the interim order and the balance to be advised is 1343 vacancies. The PSC should immediately send advice of 1343 candidates from the rank list which expired on 31.12.2004 and to which vacancies were already existed. No appointment as daily wage conductors shall be made through open source. If more daily wage conductors are required, they shall be appointed from the unadvised candidates in the expired rank list or from the candidates sponsored by Employment Exchanges. Expeditious steps also should be taken to finalise the new rank list to avoid this sort of back door appointments. PSC should advice the candidates as early as possible. All the appeals are disposed of accordingly. J.B.KOSHY JUDGE P.N.RAVINDRAN JUDGE tks