IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR MONDAY, THE 13TH DAY OF JUNE 2011/23RD JYAISHTA 1933 WP(C).No. 5130 of 2008 (I) -------------------------- PETITIONERS: ------------ 1. V.DIVAKARAN, ASSISTANT STORE KEEPER GRADE I, K.S.R.T.C. KARUNAGAPPALLY. 2. SADANANDAN P.P., ASSISTANT STORE KEEPER GRADE I, K.S.R.T.C. CHALAKUDY. 3. K.J.ANTONY, ASSISTANT STORE KEEPER, K.S.R.T.C., CHANGANASSERY. 4. D.N.VENUGOPAL, ASSISTANT STORE KEEPER GRADE I, REGIONAL WORKSHOP K.S.R.T.C., MAVELIKKARA. BY ADVS.SMT.I.SHEELA DEVI SMT.M.SINDHU THANKAM RESPONDENT: ----------- KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, CHIEF OFFICE THIRUVANANTHAPURAM. BY SRI.V.V.NANDAGOPAL NAMBIAR,SC, KSRTC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13- 06-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: STK WP(C).No. 5130/2008 APPENDIX PETITIONER'S EXHIBITS: P1: TRUE COPY OF THE NOTIFICATION DATED 30.03.1989 OF THE RESPONDENT. P2: TRUE COPY OF THE RANK LIST NO.PLC2.22413/90 PUBLISHED ON 25.03.1991 BY THE RESPONDENT. P3: TRUE CKOPY OF THE ORDER NO.PLC2-065069/94 DATED 15.10.1994 OF THE RESPONDENT. P4: TRUE COPY OF THE TERMS AND CONDITION FOR THE APPOINTMENT AS A.S.K.GRADE 11 NO.PLC-064281/96 DATED 26.09.1997 FROM THE RESPONDENT. P5: TRUE COPY OF THE COMMUNICATION NO.12544/A3/99 TRAN. DATED 3.12.1999 F ROM THE GOVERNMENT SECRETARY TO A SIMILARLY PLACED PERSON. P6: TRUE COPY OF THE JUDGMENT IN O.P.30296 OF 2002. P7: TRUE COPY OF THE ORDER NO.PLC2/026704/99 DATED 12.12.2003 PASSED BY THE RESPONDENT. P8: TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.19991 OF 2004 DATED 5.10.2007. P9: TRUE COPY OF THE ORDER NO.PL2/28082/2007 DATED 4.1.2008 ISSUED BY THE RESPONDENT TO THE 1ST PETITIONER. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P A TO JUDGE STK C.T. RAVIKUMAR J. ------------------------------------- W.P.(C) No. 5130 OF 2008 --------------------------------------- Dated this the 13th day of June 2011. J U D G M E N T Petitioners are Assistant Store Keepers under the Kerala State Road Transport Corporation (for short Corporation). Admittedly, 3rd petitioner has availed leave without allowance for the purpose of taking employment abroad from 13.1.2003. Petitioners commenced their carrier under the Corporation as Work Assistants on 2.11.1978, 13.6.1978, 31.10.1978 and 1.11.1978 respectively. In the year 1989, as per Ext.P1 notification the respondent invited application for redeployment, from qualified persons in the Store branch as Assistant Store Keeper Gr.II. A Degree in Commerce from a recognized University or Diploma in Automobile Engineering or Mechanical Engineering was prescribed as qualification in that regard. As petitioners were fully qualified for appointment to the said post, the petitioners responded to the said notification. After conducting a due selection process, including written test and an interview, Ext.P2 rank list was published. In the year 1994 the respondent posted persons who were working as Machinists as W.P.(C) No.5130 of 2008 2 Assistant Store keeper Grade -I and Grade -II according to their seniority, as per Ext.P3. Even after Ext.P3 respondents did not take steps either to post the petitioners as Assistant Store Keepers or to give them the benefit attached to their original post(entry post). Later they were given appointments as Assistant Store Keepers as per Ext.P4 dated 26.9.1997. In Ext.P4, it has been specifically stated that the appointments were effected as per the same would be provisional and subject to the approval of the Kerala Public Service Commission. Further it is stated therein as hereunder : “If K.P.S.C does not approve the appointment, they will be reverted back to the original cadre restoring their rank and seniority in the present cadre, exempting from rule 9 C of the G.P. Rules. But if he goes back to the original cadre, at his own request, the service in the post of A.S.K. will not be reckoned for G.P. in the original (present) cadre as per G.P. Rules.” 2. The grievance of the petitioners is that even after incorporating such condition in Ext.P4, the Corporation did not take appropriate steps to take up the matter before the Kerala Public Service Commission to enable the Commission to consider the question whether approval could be granted to the W.P.(C) No.5130 of 2008 3 appointment of the petitioners and similar appointees in Ext.P4. At the same time, juniors to the petitioners, who continued in the cadre to which petitioners originally belonged, obtained higher and better benefits. Such juniors are drawing higher pay than that of the petitioners. As the petitioners were not even given the increments to which they are otherwise entitled by virtue of their appointments, as Assistant Store Keepers, as per Ext.P2. In short, the petitioners are even now continuing in the post of Assistant Store Keepers provisionally without getting the benefits attached to the post of Assistant Store Keepers and at the same time, they are not being granted the benefits attached to their original cadre. It is in the said circumstance, that the petitioner approached this court by filing this Writ Petition. 3. A counter affidavit has been filed by the respondent in this Writ Petition. Virtually, the statement in paragraph 12 of the counter affidavit is to the effect that the concurrence from the Kerala Public Service Commission for the appointment effected, as per Ext.P4 is only a procedural matter between the Kerala Public Service Commission and Kerala State Road Transport Corporation. Assigning and attributing a procedural lapse in the said matter the petitioner cannot claim the benefits of the original post. It is further stated therein that petitioners and other appointees under W.P.(C) No.5130 of 2008 4 Ext.P4 were given appointments and postings as Assistant Store keepers as per Government directions. It is also stated therein that the pay of the petitioners and similarly situated appointees under Ext.P4 were to be fixed in terms of Rule 33 (b) of Part I of the Kerala Service Rules and accordingly, the pay of the petitioners were fixed. Petitioners are also eligible to get promotion to the post of Assistant Store Keeper Grade-I and, in fact, petitioners 1 and 2 have already been granted such promotions, it is further stated. Most importantly, it is stated in the counter affidavit that appointments and postings of the petitioners and other appointees under Ext.P4 were effected as a permanent measure and not on working arrangement or on any temporary measure. In the circumstances, the respondent resisted the claim of the petitioners for lien in their original category in the Mechanical Wing. 4. I have heard the learned counsel appearing for the petitioner and also the learned Standing Counsel for the respondent. Admittedly, petitioners commenced their carrier under the Corporation in the mechanical wing, either as Work Assistant or Mechanic. It was pursuant to Ext.P1 notification and after a due selection process that they were given appointment as Assistant Store Keeper Grade-II, as per Ext.P4. W.P.(C) No.5130 of 2008 5 Going by Ext.P4 the said appointment is provisional and subject to the approval by the Kerala Public Service Commission. In the counter affidavit the respondents admitted though the appointments were described as provisional they are, in fact, effected as a permanent measure and not on working arrangement or on temporary measure. In other words, the appointment of the petitioners to the post of Assistant Store keeper Grade-II is provisional only because the said appointments made as per Ext.P4 are yet to obtain the approval from the Kerala Public Service Commission. Be that as it may, it is a fact that on account of the non-receipt of approval from the Kerala Public Service Commission, the petitioners are continuing in the category of Assistant Store Keeper provisionally and, so far, no steps were taken to fix the pay of the petitioners in the scale of pay attached to the post of Assistant Store Keeper. They are also not duly granted other consequential benefits pursuant to their appointment as Assistant Store Keeper. In other words, apart from getting the fixation of pay in terms of Rule 37 (b) of Part I of Kerala Service Rules, they are not getting any benefit by virtue of their appointment and posting as Assistant Store Keeper Grade-II. At the same time, those persons who were originally juniors to the petitioners in their original cadre and even certain W.P.(C) No.5130 of 2008 6 subsequent entrants to the service of the Corporation in the said cadre, are presently enjoying higher benefits including higher pay than that of the petitioners. Such a situation arose only on account of the fact that the appointment of petitioners and other appointees as per Ext.P4 are yet to obtain approval for their appointment from the Kerala Public Service Commission. The question is who is responsible for this precarious situation. Certainly the petitioners cannot be found fault with. In Ext.P4 itself the respondents have made clear that appointments are effected as per Ext.P4 would be provisional and subject to the approval of the Commission. The petitioners cannot take up the matter before the Kerala Public Service Commission on their own. The competent authority under the Corporation was certainly duty bound to take up the matter through appropriate proceedings before the Commission. There is nothing on record to show that such appropriate steps had been taken by the respondent Corporation to bring up the issue, in accordance with law, before the Corporation. Admittedly, the appointees under Ext.P4 including the petitioners were not confirmed in the cadre of Assistant Store Keeper. The respondent cannot contend that the petitioners had lost their lien in the original cadre. W.P.(C) No.5130 of 2008 7 4. In the totality of the circumstances, I am inclined to dispose of the Writ Petition as here under: In case the Corporation had not so far taken up appropriate steps for getting approval to the appointment of the petitioners and similarly situated appointees, made as per Ext.P4, with the Kerala Public Service Commission, the Corporation shall do so expeditiously, at any rate within a period of two months from the date of receipt of a copy of this Judgment. To enable the Kerala Public Service Commission to consider the proposal for approval of the appointments effected under Ext.P4, a copy of this judgment shall also be forwarded along with such proposal. On receipt of such a proposal along with copy of this judgment, the Kerala public Service Commission shall take up the matter for consideration and pass appropriate orders thereon, expeditiously. Considering the fact that Ext.P4 is dated 26.9.1997, it will only be appropriate to take a decision thereon within a period of three months from the date of receipt of such proposal with copy of this judgment. However, in case no decision has been taken and communicated by the Kerala Public Service Commission to the Corporation within the said period of 3 months, the Corporation shall take appropriate steps for granting benefit to which petitioners are entitled as if they had in the original cadre, in case the petitioners move it in that W.P.(C) No.5130 of 2008 8 behalf. The question of granting further benefits to the petitioners shall be considered depending upon the outcome of the proposal forwarded by the Corporation to the Kerala Public Service Commission or on the decision in case the petitioners resort to the aforesaid course. As already noticed the specific contentions raised by the respondent is that the 3rd petitioner is on Leave Without Allowance for taking up employment abroad with effect from 13.1.2003. In other words, his service is not presently available to the respondent corporation as Assistant Store Keeper or in any other capacity. Whether he will rejoin duty or will be permitted to rejoin duty are not matters to be considered at this stage. Therefore, right, if any, of the 3rd petitioner to such benefits is left open to be agitated in accordance with law. Accordingly this Writ Petition is disposed of. C.T.RAVI KUMAR JUDGE al