IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 WP(C).No. 12782 of 2007(V) --------------------------------------- PETITIONERS: --------------------- 1. M.KESAVAN, CONDUCTOR SPECIAL GRADE, K.S.R.T.C., THIRUVANANTHAPURAM CITY DEPOT. 2. R.VINAYAKAN NAIR, CONDUCTOR SPECIAL GRADE, K.S.R.T.C., THIRUVANANTHAPURAM CITY DEPOT. 3. T.CHANDRAKUMAR, CONDUCTOR II GRADE, K.S.R.T.C., THIRUVANANTHAPURAM CITY DEPOT., THIRUVANANTHAPURAM. BY ADV. MR.ANANDARAJAN.N. RESPONDENTS: ------------------------ 1. THE KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM-23. 2. THE CHIEF PERSONNEL MANAGER-IN-CHARGE OF EXECUTIVE DIRECTOR (A), K.S.R.T.C., TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM-23 3. THE EXECUTIVE DIRECTOR(ADMINISTRATION)- IN-CHARGE, K.S.R.T.C., FORT P.O., THIRUVANANTHAPURAM-23. 4. THE DISTRICT TRANSPORT OFFICER, K.S.R.T.C., THIRUVANANTHAPURAM CITY DEPOT, THIRUVANANTHAPURAM. 5. D.SHIBU KUMAR, LEGAL ASSISTANT, K.S.R.T.C., CHIEF OFFICE, FORT P.O., THIRUVANANTHAPURAM-23. W.P.(C). NO.12782/2007-V: 6. N.SILENDRAN, LEGAL ASSISTANT, K.S.R.T.C. CHIEF OFFICE, FORT P.O., THIRUVANANTHAPURAM-23. 7. S.RADHAKRISHNAN, LEGAL ASSISTANT, K.S.R.T.C. CHIEF OFFICE, FORT P.O., THIRUVANANTHAPURAM-23. 8. P.N.HENA, LEGAL ASSISTANT, K.S.R.T.C. CHIEF OFFICE, FORT P.O., THIRUVANANTHAPURAM-23. R1 TO R4 BY MR.K.PRABHAKARAN, SC, K.S.R.T.C. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/08/2009,ALONG WITH W.P.(C). NOS.15920 OF 2007 & 14611 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.12782/2007-V: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE NOTE FOR THE CORPORATION PLACED ON 02/01/1975 AS AGENDA ITEM NO. 20 BEFORE THE BOARD OF DIRECTORS OF THE CORPORATION. EXT.P.2: COPY OF THE DECISION OF THE BOARD OF DIRECTORS IN ITS 98TH MEETING HELD ON 02/01/1975 VIDE AGENDA ITEM NO. 20. EXT.P.3: COPY OF THE ORDER NO. R-DIS 2611/73 DTD. 17/01/1975. EXT.P.4: COPY OF THE NOTIFICATION INVITING APPLICATION FOR SELECTION OF LEGAL ASSISTANTS ISSUED AS MEMORANDUM NO. PLC-38535/78 DTD. 06/10/1978 FOR THE FIRST TIME IMMEDIATELY AFTER ISSUING EXHIBIT P3 ORDER. EXT.P.5: COPY OF THE CIRCULAR MEMORANDUM NO. PL1-017775/05 DTD 15/12/2006 TOGETHER WITH PROFORMA AND CERTIFICATE FORM. EXT.P.6: COPY OF THE MEMORANDUM PL1-1/017775/05 DTD. 12/01/2007. EXT.P.7: COPY OF THE PAPER AFFIXED ON THE WALL OF THE TRANSPORT BHAVAN BUILDING AS SEEN AFTER THE INTERVIEW ON 24/01/2007. EXT.P.8: COPY OF THE NEWS ITEM APPEARED IN THIS REGARD IN THE MATHRUBHOOMY DAILY. EXT.P.9: COPY OF THE RANK LIST (MEMORANDUM NO. PL1/017775/05 DTD. 25/01/2007 PUBLISHING THE RANK LIST OF CANDIDATES WHO ATTENDED THE INTERVIEW CONDUCTED ON 24/01/2007 FOR SELECTION TO THE POST OF LEGAL ASSISTANTS). EXT.P.10: COPY OF THE MEMORANDUM NO. 017775/2005 DTD. 25/01/2007. EXT.P.11: COPY OF THE MEMORANDUM NO. PL-017775/2005 DTD. 29/01/2007 ADMITTING THE R.5. FOR DUTY W.E.F. 29/01/2007 AS LEGAL ASSISTANT. EXT.P.12: COPY OF THE MEMORANDUM NO. PL1-017775/2005 DTD. 27/01/2007 ADMITTING THE R6 FOR DUTY W.E.F. 27/01/2007 AS LEGAL ASSISTANT. EXT.P.13: COPY OF THE MEMORANDUM NO. PL1-017775/2005 DTD. 29/01/2007 ADMITTING THE R.7 FOR DUTY W.E.F. 29/01/2007 AS LEGAL ASSISTANT. EXT.P.14.A: COPY OF THE LETTER NO. PIO-131-2007 DTD. 09/02/2007 OF THE PUBLIC INFORMATION OFFICER. W.P.(C). NO.12782/2007-V: EXT.P.14.B: COPY OF THE MINUTES OF THE INTERVIEW (TABULATION SHEET OF CANDIDATES FOR SELECTION AS LEGAL ASSISTANT). EXT.P.14.C: COPY OF THE DETAILS OF THE LEGAL ASSISTANTS APPOINTED. EXT.P.15: COPY OF THE MEMORANDUM NO. PL1-1-17858/05 DTD. 18/08/2006. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).Nos.12782 & 15920 OF 2007 & 14611 OF 2009 ------------------------------------------- Dated this the 17th day of August, 2009 JUDGMENT 1.These writ petitions are filed challenging the selection and appointment of four persons as Legal Assistants in the service of the Kerala State Road Transport Corporation. It is not in dispute that Kerala State & Subordinate Service Rules, by adoption, applies to the service in KSRTC. It is also not in dispute that the category of Legal Assistants fall within those enumerated in the Regulations framed by the KSRTC prescribing the method of recruitment and qualification for appointment. It cannot also be disputed that KSRTC service comes within the consultative regime of the Kerala Public Service Commission by virtue of the Kerala Public Service Commission (Additional Functions as respects Kerala State Road Transport Corporation) Act, 1970, hereinafter, the “Additional Functions Act” for short, which was preceded by Ordinance to that effect, following which Ordinance, rules WPC.12782/07 & con. cases Page numbers were also issued in 1969 as the Kerala Public Service Commission (Consultation by KSRTC) Rules, 1969. The provisions of those rules, by virtue of the saving provisions in the Additional Functions Act, 1970 stand. This means that the KSRTC is bound to consult the PSC on all matters relating to the recruitment of officers and servants other than the Chief Executive Officer and General Manager and the Chief Accounts Officer. This is so because, though rules have been framed, there is none providing for any matter in respect of which it shall not be necessary to consult the PSC. 2. With the aforesaid situation, the KSRTC issued a circular memorandum on 15.12.2006, inviting applications from among the qualified employees who are in the active service of KSRTC, possessing a recognised Degree in Law, preferably LL.B. with specialisation in Procedural Law, for selection and appointment as Legal Assistants. That circular shows that what the KSRTC meant by active service is “not on absence, LWA for other employment etc.”. The said circular also WPC.12782/07 & con. cases Page numbers provides that persons appointed as Legal Assistants will have no lien in their original category. All Unit Officers were requested to obtain applications only from among the qualified employees who are performing regular duties in their category and who are not on absence/LWA for other employment, in the proforma. Following that, the petitioners in these matters, the four selected candidates, and certain other persons applied for. They were interviewed. That selection is under challenge. 3.In the order of seniority of their ranking, the selected candidates are arrayed as the private respondents in these writ petitions. 4.The petitioners contend that the first rank holder D.Shibu Kumar was unqualified for being considered for selection and appointment as Legal Assistant in as much as he was not a full member of the KSRTC service; his due completion of probation not having been declared. It is also pointed out that though he WPC.12782/07 & con. cases Page numbers did not possess LL.M. by passing the relevant examination, he was alloted marks as if he hold such a degree. As regards N. Silendran, S.Radhakrishnan and P.N.Hena, the three other selected candidates, there is really no attack particularly against Hena while Shibu Kumar, Silendran and Radhakrishnan face the contention that they, if at all in service, belong to non-ministerial category while the regulations prescribe the feeder category as Lower Division Clerks and Upper Division Clerks and hence, they were included without authority of law, in the field of choice. Hena also gets tagged along with the challenge against the appointments on a larger plea that the entire selection process is the result of nepotism, favouritism, fraud and arbitrariness, solely aimed at ensuring that the candidates to the liking of the selection committee got through. This plea is sought to be founded by the petitioners on the allegation that without any indication in the circular, inviting the applications, a formula was crafted out immediately before the interview, whereby, 100 marks were distributed categorising the qualifications into WPC.12782/07 & con. cases Page numbers different heads viz., Graduation, Post Graduation, LL.B., LL.M., other qualifications etc. taking slots of marks, ultimately leaving 20% marks for the interview. 5.While the learned counsel appearing for the KSRTC would point out that the invitation of applications cannot be found fault with since the applications were invited on the basis of qualifications prescribed, learned counsel for the contesting respondents, the selected candidates, argued that in the first place, the writ petitions are liable to be turned down since the petitioners, following the notification, had participated in the selection process and cannot thereafter turn round. They argued that the petitioners have necessarily to be tied down on principles of estoppal by conduct on ground of their participation. It was further argued on behalf of the contesting respondents that the fact remains that many of the petitioners themselves belong to the non-ministerial category and it is not for them to contend that persons from non- ministerial category have been selected. I may at once notice WPC.12782/07 & con. cases Page numbers that three among the four selected candidates are from non- ministerial categories. It is also argued that in so far as Shibu Kumar is concerned, there might have been an error in the allotment of marks on the premise that he had an LL.M. Degree; even if such mark is deducted, the scales would not shift and that it was not the requirement of the notification that one should have completed probation in service. 6.The petitioners have the unsurmountable contention in their favour that while the field of choice for appointment of Legal Assistants is confined to be from among the ministerial categories (UDCs and LDCs), selection and appointment have been made from among the other categories also. To that extent, all that needs to be found is as to whether those provisions have a statutory flair binding on the Corporation and overriding the Board's power to have issued any direction which could have generated a notification in the nature of the circular in hand. Classification of Legal Assistants as a category, appointment to which is to be made from among WPC.12782/07 & con. cases Page numbers LDCs and UDCs possessing a Degree in Law with specialisation in Procedural Law is a prescription contained in the Regulations. The Regulations are framed by the KSRTC in consultation with the State Government, obligatory in terms of Section 45 of the Road Transport Corporation Act, 1950. They, standing with the approval of PSC, by virtue of the Additional Functions Act, it is obligatory for the KSRTC to consult the PSC to modify the Regulations. With such statutory flair being available in favour of the Regulations, it is attempted to be pointed out by the KSRTC that the selection from among all the categories of employees of the KSRTC was resorted to on the basis of a decision of the Board of KSRTC following the immediately earlier precedent, which again was the outcome of legal advice following certain earlier judgments of this Court. The fact of the matter remains that as on today, the Regulations govern. It is also pointed out that even the Government have questioned the KSRTC about the procedure adopted and the KSRTC has informed the Government that it is proceeding to have a board decision regarding the variation of WPC.12782/07 & con. cases Page numbers the Regulations with the concurrence of the State Government. That could be only upon advice of the PSC. In this scenario, it has also to be remembered that the power to make regulations, including the power to make them operational, even retrospectively if need be. With such a situation and having regard to the fact that this Court is not oblivious of the situation that KSRTC has different other matters pending with the PSC or yet to be taken with the PSC for consultation, the challenge as against the selection and appointment of Silendran and Radhakrishnan need to be answered only by stating that their selection and appointment would remain provisional and shall not be confirmed unless the KSRTC ensures that its Regulations are properly modified opening up the zone of consideration, including the non- ministerial categories also, subject to the petitioners' offer contentions, which will be dealt with hereunder. 7. In so far as Shibu Kumar's selection is concerned, one issue is certain, that he did not possess an LL.M. degree when he was WPC.12782/07 & con. cases Page numbers considered as one who possesses such a degree and was awarded marks by applying that yardstick. There is also an allegation that even the certificate that he had completed that course was made available only after the interview. That allegation has been refuted. Be that as it may, the fundamental issue regarding his selection is the assertion that he had not duly completed his probation in the entry cadre and was, therefore, incompetent to be considered for selection and appointment either by transfer or by promotion to a higher cadre. In so far as KSRTC is concerned, the three known methods of appointment that it could resort to within the format of KS & SSR is appointment by direct recruitment, by promotion and by transfer, leaving aside deputation as a method of filling up immediate necessities. In so far as regular appointments are concerned, appointment by promotion or by transfer will stand to be governed by rules, including Rule 28 in Part II KS & SSR. Rule 28(b) provides for appointment by promotion and by transfer. The provisions in Rule 28 deal with appointment by transfer or by promotion from among the WPC.12782/07 & con. cases Page numbers members of a service. A member of a service includes a probationer, going by Rule 2(a) of Part I KS & SSR. The suitability for full membership and satisfactory completion of probation in terms of Rule 20 of Part II KS & SSR gives a member of service the qualification of being a full member, thereby meaning a member of that service who has been appointed substantively to a permanent post borne on the cadre thereof. This is the effect of the definition of the term ”full member” in Rule 2(7) of Part I KS &SSR. Bearing in mind the nice distinction between a member of service and full member, reverting to Rule 28, the inhibition that would work against a person, who has not completed probation, would be confined only as regards promotion and not as regards appointment by transfer. In that view of the matter, insistence on completion of probation in a category which falls within the zone of consideration would not be relevant in a case of appointment by transfer but would be relevant only in a case where it is a feeder category for appointment by promotion. It may be within the competence of the employer to prescribe WPC.12782/07 & con. cases Page numbers completion of probation in a particular category as a condition requisite for being considered for appointment by transfer also. In the absence of any such prescription having been made either in the Regulation or in the notification, selection of Shibu Kumar cannot be faulted on that ground. Even if the marks alloted to him, as shown in the credit sheet for LL.M., which qualification he did not possess, is deducted from the total, he would not be upset by any other candidate on the score card. Therefore, his selection also stands and would have to be provisional subject to what is stated above as regards the selection and appointment of the other three candidates, since he also comes from the non-ministerial category. 8.These leave for consideration the argument that the situation in hand demonstrates nepotism and resultant arbitrariness in the selection. The petitioners would contend that it is after knowing the credentials and qualifications of the candidates that the proforma score card was made out and published WPC.12782/07 & con. cases Page numbers earmarking marks out of 100, for different qualifications. Accordingly, it is argued that the very publication of such a proforma marks card was itself an eye-wash and intended to cover up the otherwise hidden agenda of making the selection as has been done. It is argued that no such yardstick or differentials in marks having been notified, it was inappropriate and impermissible for the selection board to have done that, that too, without any direction of the Board of Directors of the Corporation. This argument has to be tested on the probable results that would have occurred if the proforma score card had not been published. 100 marks would have then been exclusively available for the interview board without any yardstick and if it were their intention to distribute it at their sweet whims and fancies, it would have only been easy for them to do it without prescribing the mark card and publishing it even before the interview. The mere publication of such a score card even before the interview, in no manner demonstrates that the mind of the selection committee was polluted or that their action is tainted. WPC.12782/07 & con. cases Page numbers 9. For the aforesaid reasons, the challenge against the selections fails, the selection and appointment of Hena is upheld and it is ordered that the appointment of the selected candidates would remain provisional awaiting the concurrence of PSC for the amendment to the Regulations regarding the inclusion of non- ministerial candidates in the feeder category for Legal Assistants. It is further directed that if that event does not occur within a period of one year from now, the selection of D.Shibu Kumar, N.Silendran and S.Radhakrishnan from among the non-ministerial categories would stand cancelled by the force of this judgment. These writ petitions are ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.19/8.