IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR FRIDAY, THE 24TH DAY OF JUNE 2011/3RD ASHADAH 1933 WP(C).No. 26486 of 2005 (C) --------------------------- PETITIONER(S): ------------- O.SURENDRAN, S/O.VELAYUDHAN NAIR, AGED 46 YEARS, WORKING AS DRIVER GRADE-II KERALA STATE ROAD TRANSPORT CORPORATION MALAPPURAM AND RESIDING AT PANANGHATMADAM HOUSE CHERATTUKUZHY-P.O., DOWN HILL, MALAPPURAM PIN-676 519. BY ADV. SRI.N.UNNIKRISHNAN RESPONDENT(S): -------------- 1. THE KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE ASSISTANT TRANSPORT OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION MALAPPURAM. BY ADV. SHRI.V.V.NANDAGOPAL NAMBIAR, SC FOR KSRTC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-06- 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26486 of 2005 (C) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF MEMORANDUM NO.E1-174/2000/MPM DATED 28.07.2000 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER. EXT.P2: TRUE COPY OFMEDICAL CERTIFICATE DATED 12.07.2002 ISSUED BY DR.A.K.VENUGOPAL, ORTHOPAEDIC CIVIL SURGEON, MALAPPURAM. EXT.P3: TRUE COPY OF MEMORANDUM NO.PLA-6/010835/02 DATED 19.04.2002 ISSUED BY THE FIRST RESPONDENT TO THE SECOND RESPONDENT. EXT.P4: TRUE COPY OF CERTIFICATE DATED 14.10.2004 ISSUED FROM THE MEDICAL COLLEGE CALLICUT. EXT.P5: TRUE COPY OF LETTER DATED 06.12.04 SUBMITTED BY THE PETITIONER TO THE FIRST RESPONDENT. EXT.P6: TRUE COPY OF LETTER DATED 23.12.2004 SUBMITTED BY THE PETITIONER. EXT.P7: TRUE COPY OF JUDGMENT DATED 04.02.2005 IN W.P.(C)NO.4021/2005-F PASSED BY THE HON'BLE HIGH COURT OF KERALA. EXT.P8: TRUE COPY OF MEMO NO.E1-31/05/MPMDATED 07.04.2005 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER. EXT.P9: TRUE COPY OF CERTIFICATE DATED 23.06.2005 ISSUED BY DR.K.M.DENESHAN, CONSULTANT & UROLOGIST, KUTHIRAVATTOM. EXT.P10: TRUE COPY OF REPRESENTATION DATED 27.06.2005 SUBMITTED BY THE PETITIONER TO THE FIRST RESPONDENT. EXT.P11: TRUE COPY OF MEMORANDUM NO.PL14/001127/05 DATED 01.04.2005 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER. // TRUE COPY // TKS C.T.RAVIKUMAR, J. ---------------------------- W.P.(C)No.26486 of 2005 ---------------------------- Dated 24th June, 2011 JUDGMENT The petitioner was directly recruited as Driver Grade II under the Kerala State Road Transport Corporation (for short KSRTC). In the year 2002 it was found that he was suffering from Spondylosis. Subsequently, it was found that he was having kidney problem as well and in fact, he had undergone a major kidney operation. Producing necessary medical certificates such as Exts.P2 and P4 the petitioner has submitted Ext.P5 representation requesting the first respondent to grant him category change to a lower post. It was also pointed out that vacancies in the lower posts such as Peon/Store Assistant/Pump operator are available in Malappuram District. Subsequently, he has submitted Ext.P6 representation, as well, reiterating the request made as per Ext.P5. Clause XXIX(c) of the Memorandum of Settlement dated 28.12.1990 deals with the category change. It reads thus:- “Kerala Public Service Commission will be moved again to clear the restrictions to the category change to lower posts” Despite the receipt of Exts.P5 and P6 representations respondents had not responded to the request for category change. That constrained the petitioner to approach this Court by filing W.P(C) No.4021 of 2005. The WP(C).No.26486/2005 2 said writ petition was disposed of as per Ext.P7 judgment. The first respondent was directed to consider the representations submitted by the petitioner carrying the aforesaid request. In the meanwhile, Ext.P8 memo was issued posting the petitioner as Pump Operator on working arrangement with effect from 7.4.2005 for a period of 3 months. It also carried a direction to the concerned authority to relieve him back to his original post on completion of the said period. Since the said decision was taken without considering the directions of this Court in Ext.P7 judgment the petitioner has submitted Ext.P10 representation. Along with Ext.P10 representation the petitioner has also produced Ext.P9 medical Certificate. Thereafter, Ext.P11 order was passed in purported compliance with the directions in Ext.P7 judgment. As per Ext.P11 the first respondent directed the second respondent to engage the petitioner as Pump Operator on working arrangement for a period of 3 months and then to relieve him or revert back to his original post on completion of the said period. The stand of the first respondent is that there no provision for the category change to lower post like Peon, Store Assistant etc. It is in the said circumstances that this writ petition has been filed mainly seeking a declaration that the respondents are bound to consider the case of the petitioner for other duty postings or for category change WP(C).No.26486/2005 3 and for issuance of a writ of mandamus commanding the respondents to post the petitioner in other duty and if necessary after obtaining concurrence from the Public Service Commission for category change to an equivalent post or to a lower post within a reasonable time. On 7.9.2005, when this matter was admitted, this Court granted an interim order directing the respondents to provide light duty/other duty to the petitioner as has been given under Exts.P8 and P11 till a final decision on the request for the other duty/category change of the petitioner is taken by them, for a period of one month. The said order was later extended until further orders and in view of the said order the petitioner is still doing other duty viz., light duty under the Corporation. 2. The contention of the petitioner is that though the relevant clause under the settlement dated 28.12.1990 mandates for moving the Kerala Public Service Commission in case of category change to lower posts, no step was taken by the respondents despite the receipt of Exts.P4 and P5 and P10 representations. The petitioner relies on clause XXXI(3) of the Wage revision agreement dated 13.4.1999 which stipulates that Clauses of the previous agreements which are not amended and not expressly reproduced in that agreement and not WP(C).No.26486/2005 4 cancelled, amended or modified by orders of the Corporation, or Government will continue to operate. Clause XIII of the Wage revision agreement dated 2.2.1987 reads thus:- No employee will be allowed to change his/her category. Generally no category change will be allowed. However in exceptional cases, where the employee is disabled due to accident or illness while in service, on the basis of recommendation of a Medical Board and on the basis of due approval of Public Service Commission if necessary, Management at the highest level may consider and decide his employment in a lower category where he is found suitable. Such changes will be done only in really deserving and exceptional cases. The incumbent can also opt for invalid pension. He may be given an option for a job to his dependant if considered suitable subject to the concurrence of Public Service Commission and if he forgoes pensionary benefits.” Relying on the said clause, it is contended that the respondents are not justified in taking the stand that the category change to a lower post is totally impermissible under the Corporation. It is contended that the above extracted clause would reveal that it is possible but only with concurrence with Kerala Public Service Commission. When this matter is taken up for consideration today, the learned counsel for the petitioner brought to my attention the subsequent orders passed by KSRTC viz., Memorandum No.PL1-17448/09 dated 16.12.2010 and PL1/35112/2010 dated 16.2.2011. The latter memorandum would reveal that the WP(C).No.26486/2005 5 Corporation has invited application for category change to the lower category. The petitioner also relies on the said memorandum dated 16.2.2011 to contend that respondents cannot contend any more that a category change is wholly impermissible under the Corporation. The respondents have filed a counter affidavit in this writ petition. The contention of the respondents is that in terms of Ext.P7 judgment the claim of the petitioner was considered and accordingly he was granted lower duty posting for a period of six months. The respondents have not stated in the counter affidavit with respect to the entitlement or otherwise of the petitioner for seeking category change in terms of clause 13 of Wage Revision agreement dated 2.2.1987. It is the contention of the petitioner that in the light of clause 31 of the Wage Revision agreement dated 13.4.1999 clause 13 of the agreement dated 2.2.1987 would govern the field even now. Therefore, according to the learned counsel for the petitioner, since the petitioner is seeking category change to a lower post on medical ground after producing requisite medical certificates, the respondents are bound to seek for the concurrence of the Kerala Public Service Commission for such category change and in case, they got dispute or doubt with regard to the genuineness of the medical certificate they are bound to follow the WP(C).No.26486/2005 6 requisite prescribed procedures to avert the same. There is nothing on record to show that the Corporation has looked into the said aspects of the issue. At the same time, it is evident that for the past five years or thereabouts on the strength of the interim order the petitioner is discharging light duty under the Corporation. As already noticed hereinbefore, the specific contention of the petitioner, in terms of Clause 13 of the Wage revision agreement dated 2.2.1987 that continues to govern the field in the light of clause 31 of the wage revision agreement dated 13.4.1999, the respondents are bound to consider the issue considering the request of the petitioner for category change to lower post. Since this question was not considered by the Corporation looking into relevant provisions under the memorandum of settlement dated 28.12.1990 or the wage Revision agreement dated 2.2.1987 and also subsequent orders referred above, I am of the considered view that the request of the petitioner for category change on the ground of illness shall be considered by the respondents after considering the genuineness of the Medical Certificates produced by the petitioner. If on such consideration, it is found that the claim of the petitioner is genuine the respondent shall take further steps for getting and placing the matter for concurrence of the Kerala Public Service Commission, in terms of the WP(C).No.26486/2005 7 relevant provisions governing the said subject. Accordingly, this writ petition is disposed of with a direction to the respondents to take steps in that regard, expeditiously, at any rate, within a period of six months from the date of receipt of copy of this judgment. Till a final decision is taken on the matter the respondents shall permit the petitioner to continue to discharge the light duties in terms of the earlier interim order. Sd/- C.T.RAVIKUMAR Judge jma