IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR FRIDAY, THE 27TH DAY OF MAY 2011/6TH JYAISHTA 1933 WP(C).No. 28361 of 2010 (U) --------------------------- PETITIONER(S): ------------------------- K.S.KURUVILLA, S/O.SUNNY, KALARICKAL HOUSE, PADINJARECKARA P.O., VALLAKOM, VAIKOM, (ASSITANT STORE KEEPER, KSRTC, VAIKOM). BY ADV. SRI.K.P.JUSTINE (KARIPAT) RESPONDENT(S): --------------------------- 1. THE KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM-23. 2. THE EXECUTIVE DIRECTOR(ADMINISTRATION), KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM-23. 3. ASSISTANT TRANSPORT OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION, VAIKOM. BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR,SC, KSRTC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-05-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.28361/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PAGE NO.6 OF THE SERVICE BOOK OF THE PETITIONER. P2 COPY OF THE RELEVANT PAGES OF THE SERVICE BOOK WHERE THE DETAILS OF SUCH REVERSION IS RECORDED. P3 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT CORPORATION DATED 16/7/2010. P4 COPY OF THE ORDER NO.PL-2/000678/07 DATED 10/4/2007 ISSUED BY THE 1ST RESPONDENT. P5 COPY OF THE JUDGMENT IN WP(C)NO.8546/2007 DATED 14/3/2007 PASSED BY THIS HONOURABLE COURT. P6 COPY OF THE PROMOTION ORDER NO.PL 10/002001/10 DATED 25/5/2010 ISSUED BY THE RESPONDENT CORPORATION. P7 COPY OF THE ORDER NO.PL-11/00100/08 DATED 2/7/2008 ISSUED BY THE RESPONDENT CORPORATION. P8 COPY OF THE MEMO NO.PL 2/022339/2006 DATED 31/1/2007 ISSUED BY RESPONDENT CORPORATION. P9 COPY OF THE JUDGEMENT DATED 23/10/2002 IN W.A.NO.969/2000 PASSED BY THIS HONOURABLE COURT. P10 COPY OF THE MEMORANDUM NO.PL.10/002001/10 DATED 25/5/2010 ISSUED BY THE CHIEF PERSONNEL MANAGER,KSRTC, THIRUVANANTHAPURAM. P11 COPY OF THE JUDGMENT DATED 6/2/2002 IN O.P.NO.14522 OF 1997 PASSED BY THIS HONOURABLE COURT. P12 COPY OF THE JUDGMENT IN WP(C)NO.10088/2004''KESAVAN VS. KSRTC(2006 (1) KLT 159) RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO.28361 OF 2010 -------------------------------------------- Dated this the 27th day of May, 2011 JUDGMENT The petitioner was directly recruited as Reserved Conductor on 9.11.1982. He was advised and appointed pursuant to a selection process initiated by the Kerala Public Service Commission (for short the 'Commission'). Till 30.4.2000, the petitioner continued to discharge the duty as a Conductor. In the year 2000, the petitioner applied for category change citing the reason of physical disability to work as a Conductor. Considering the specific request of the petitioner, he was given category change and was posted as ticket issuer which is equivalent to the post of Peon. Ext.P2 would reveal the fact that taking into account his request, the petitioner was posted as Store Issuer. Pursuant to the allotment of category change, he joined as Store Issuer at Eratturpetta on 16.5.2000. According to the petitioner, after a prolonged treatment, he recovered from illness and acquired fitness to discharge duty of the Conductor. Thereupon, he W.P.(C) NO.28361/2010 2 submitted Ext.P3 representation along with a fitness certificate on 16.7.2010, before the respondents. It is the inaction on the part of the respondents on Ext.P3 representation and granting him a reposting as Conductor with consequential promotions that constrained the petitioner to file this Writ Petition with the following prayers:- ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to repost the petitioner to his substantive post of Conductor forthwith on the basis of his representation (Ext.P3) with all consequential promotions in the category of conductor in the light of Exts.P4, P6 and P8 orders issued by the respondents in similar cases. iii) Declare that the petitioner is entitled for reposting as conductor and for all consequential promotions in that category reckoning his original seniority with effect from 9.11.1982 and reckoning also the period he had worked in the lower category of Store Attender, as if no valid category change is made, in the absence of concurrence of P.S.C. 2. It is not in dispute that the petitioner was directly recruited in the year 1982 as Conductor after a due selection process held by the Commission. Later, he was posted as Ticket Issuer in the year 2000 solely based on his request for a category change to the said post. On being allowed the category change, he joined as Store W.P.(C) NO.28361/2010 3 Issuer which is a post equivalent to that of Peon, on 16.5.2000. The contention of the petitioner is that on receipt of Ext.P3 dated 16.7.2010, he should have been reposted as Conductor with all consequential benefits including promotion. In support of the said claim, the petitioner has given certain instances wherein similarly situated persons were given reposting with consequential benefits. In the year 2000, while granting category change, it has been specifically mentioned in the order that it would be provisional and subject to the concurrence by the Commission, it is contended. Therefore, according to the petitioner, respondents could not deny him the benefits attached to the post of Conductor. The petitioner also relies on Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short 'the Act'). It is contended that in view of Section 47 of the Act which envisages that no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service, the petitioner should not have been reduced rank. At the very outset, it is to be noted that there is no case for the petitioner that respondent authorities had found the petitioner not entitled to hold the post to W.P.(C) NO.28361/2010 4 which he was directly recruited on account of acquisition of a disability and based on such a decision reduced his rank. Admittedly, the petitioner himself requested for a category change. There is no case for the petitioner that he was absolutely unaware of the fact that category change on his request was given to a post which is equivalent to the post of Peon. In fact, evidently, he requested for such a posting as category change. It is only on 16.7.2010 i.e., after more than a decade since the category change that too, only on nearing the age of superannuation that he approached the authorities with a prayer to repost him as Conductor citing the reason that as he has regained his health and fit enough to discharge duties attached to the post of Conductor. The cases covered under the Act and cases of claims for category change are different and cannot be equated. This is not a case wherein taking into account the disability acquired by the petitioner covered by the provisions under the Act, he was given an alternative employment. Even according to the petitioner, he was suffering from chest pain and on account of that, faced with certain difficulties. It was in the said circumstances that the petitioner himself requested for category change fully realising the fact that the W.P.(C) NO.28361/2010 5 post to which he sought for category change was note one which is equivalent to the post to which he was directly recruited. After requesting for the same and accepting and continuing in the said post of Store Issuer for long period, the petitioner cannot be heard to contend that he was reduced rank and the category change was effected without concurrence from the Kerala Public Service etc. I have adverted to the said aspects only to say that the petitioner cannot, as a matter of right, claim for a reposting in the factual situations obtained in this case. 3. I do not think it proper to consider the rival contentions on merits, at this stage. While working as Store Issuer, the petitioner was given promotion to the post of Store Assistant with effect from 10.9.2008. He had accepted the said promotion as Store Assistant with effect from 10.9.2008 and he is continuing in the said post. As already noted, the petitioner contends that under similar circumstances, certain persons were given reposting to their entry cadre with consequential benefits. Taking into account the fact that the petitioner has submitted Ext.P3 representation carrying such W.P.(C) NO.28361/2010 6 claims and contentions and for a reposting as Conductor along with a fitness certificate and that the said representation is still pending, I am inclined to dispose of this Writ Petition with a direction that the competent authority among the respondents shall take up Ext.P3 and pass appropriate orders thereon. This shall be done expeditiously, at any rate, within a period of six weeks from the date of receipt of a copy of this judgment. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.28361/2010 7 C.T. RAVIKUMAR, J. JUDGMENT September, 2010 W.P.(C) NO.28361/2010 8