Kerala High Court
Jobish T.J vs The Kerala Road Transport ... on 25 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
Thursday, the 25th day of November 2021 / 4th Agrahayana, 1943
WA NO. 1335 OF 2021
AGAINST JUDGMENT DATED 07.07.2021 IN WP(C) 23965/2020 OF THIS COURT.
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APPELLANTS/PETITIONERS IN W.P:
1.JOBISH T.J.,THADATHIL HOUSE,VADEVATHOOR P.O.,
KALAETHIPADY, KOTTAYAM - 686 210.
AND 15 OTHERS
BY ADVS.M/S.P.NANDAKUMAR & AMRUTHA SANJEEV
RESPONDENTS/RESPONDENTS IN W.P.:
1.THE KERALA STATE ROAD TRANSPORT CORPORATION,TRANSPORT BHAVAN,
THIRUVANANTHAPURAM -695 001,REPRESENTED BY ITS MANAGING DIRECTOR.
AND 3 OTHERS
BY STANDING COUNSEL SRI.DEEPU THANKAN FOR R1 & R2.
STANDING COUNSEL SRI.P.C.SASIDHARAN FOR R3.
ADDITIONAL ADVOCATE GENERAL SRI.ASOK M.CHERIAN &
SENIOR GOVERNMENT PLEADER FOR ADDL.R4.
Petition praying that in the circumstances stated in the affidavit
filed therewith the High Court be pleased to stay the operation of the
judgment dated 07.07.2021 in WP(C) No.23965 of 2020, pending disposal of
the above Writ Appeal.
This Writ Appeal again coming on for orders on 25/11/2021 upon
perusing the appeal memorandum and this court's order dated 08.11.2021,
the court on the same day passed the following:
P.T.O.
ANNEXURE R1(a):TRUE COPY OF THE LETTER NO.1012/GL2/97/RTC
DATED 11/07/2017 ISSUED BY THE CMD OF THE CORPORATION.
ANNEXURE R1(b): TRUE COPY OF THE LETTER NO.L4/006573/17
DATED 16/04/2018 ISSUED BY THE CMD OF THE CORPORATION.
ANNEXURE R1(c):TRUE COPY OF THE LETTER NO.L4/006573/17
DATED 29/08/2018 ISSUED BY THE CMD OF THE CORPORATION.
ANNEXURE R1(d):TRUE COPY OF THE LETTER NUMBER
CR I (1)8363/14/CW DATED 02/07/2018.
ANNEXURE R1(e):TRUE COPY OF THE LETTER DATED 27/07/2018
ISSUED BY THE CMD, KSRTC TO THE SECRETARY,KPSC.
ANNEXURE R1(f):TRUE COPY OF THE LETTER OF THE SECRETARY,
KPSC DATED 25/05/2019.
ANNECURE R1(g):TRUE COPY OF THE LETTER OF THE CORPORATION
NO.1012/GL2/MISC/97/RTC DATED 18/09/2019.
ANNEXURE R1 (h):TRUE COPY OF THE LETTER OF THE CORPORATION
NO.1012/GL2/MISC/97/RTC DATED 04/11/2019.
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ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
.................................................................
W.A. No.1335 of 2021
[Arising out of judgment dated 07.07.2021 in W.P.(C) No.23965 of 2020]
.................................................................
Dated this the 25th day of November, 2021
ORDER
We have heard the parties in extenso.
2. Sri.Deepu Thankan, the learned Standing Counsel for the
KSRTC appearing for R1 & R2, has taken this Court's attention to the
detailed averments in the affidavit dated 22.11.2021 filed by the
respondent KSRTC in this appeal, purported to be in response to the
orders dated 20.10.2021 & 08.11.2021 passed by us in this appeal.
Learned Standing Counsel for the KSRTC has also taken our
attention to the documents produced in the said affidavit, including
Annexures-R1(a) to R1(h), more particularly Annexures-R1(g) &
R1(h). Therein the case set up by the respondent KSRTC is that the
said Corporation is facing extreme financial difficulties and
hardships and is not in a position to make any fresh regular
appointments, etc. and has thus requested the Governmental
authorities of the State of Kerala in the Transport Department to
take appropriate decision on the matters arising out of the advice
memos issued by the respondent Kerala Public Service Commission
to the candidates like the writ appellants herein.
3. Sri.P.Nandakumar, the learned counsel appearing for the
writ appellants/writ petitioners and Sri.P.C.Sasidharan, the learned
Standing Counsel for the respondent Kerala Public Service
Commission have also taken this Court's attention to the provisions
contained in Articles 320 & 321 as well as Article 16(4B) of the
Constitution of India which deals with appointments made against
NCA (No Candidate Available) vacancies, as conceived in Rule 15 of
KS & SSR Part II, etc. as well as the provisions contained in Rule 7(a)
& Rule 7(b) of KS & SSR Part II. Earlier, taking note of the
submissions of Sri.P.Nandakumar, the learned counsel appearing for
the writ appellants, we wanted instructions from the respondents as
to the directions issued by this Court in earlier judgments, as in
judgments said to be rendered in analogous situations where there
was general ban of appointment and in such cases the candidates
advised by the PSC are to be granted appointment order by the
appointing authority and thereafter they could forthwith be
discharged as envisaged in Rule 7(a) of KS & SSR Part II with right of
reappointment in terms of Rule 7(b) thereof as and when
appointment is feasible. The said crucial aspect regarding the plea for
at least appointment, forthwith discharge and reappointment, as and
when which subsequently feasible in terms of Rules 7(a) & 7(b) of
Part II KS & SSR has not been remotely dealt with in the averments
in the affidavit dated 22.11.2021 filed on behalf of the Managing
Director of the respondent Corporation.
4. We had earlier also requested the learned Standing
Counsel for the Kerala Public Service Commission to secure
instructions from the Commission on the matters emanating in this
case, including the aforesaid aspects borne out from Rules 7(a) & 7(b)
of KS & SSR Part II, etc. Today when the matter has been taken up
for consideration, Sri.P.C.Sasidharan, the learned Standing Counsel
for the Kerala Public Service Commission appearing for the
respondent PSC would submit on the basis of the instructions that
the stand of the Commission is that, due regard should be made to
the financial difficulties now being faced by the respondent
Corporation and that since the candidates have already been advised
by the Commission and since no objection has been made by the
respondent Corporation prior to the advice memos have been so
issued in this case and also more particularly, taking into
consideration the fact that the advice memos have been issued in
relation to NCA vacancies and not to fresh vacancies and since NCA
vacancies have got constitutional protection and statutory protection
in terms of Article 16(4B) of the Constitution of India and Rule 15 of
KS & SSR Part II, etc. and taking note of the provisions contained in
Rule 15 of the KS & SSR Part II, etc. the respondent Corporation may
appoint candidates advised by the PSC, under Rule 7(a) of KS & SSR
Part II and they may be discharged forthwith, as envisaged in Rule
7(a) with right of reappointment under Rule 7(b) as and when the
appointment rule is feasible, taking into account the financial
viability of the respondent Corporation. Sri.P.Nandakumar, the
learned counsel appearing for the appellants had pointed to us that
this Court in a series of judgments as in the judgment rendered as
early as on 20.09.2002 in cases as in O.P.No.13725 of 2002 has held
that in such cases, the candidates advised by the PSC may be
appointed in terms of Rule 7(a) and may be discharged also
thereafter in terms of the said provision with right of reappointment
under Rule 7(b) of KS & SSR Part II as and when appointment is
feasible and that a series of judgments in that regard has been
rendered by this Court, in analogous situations and it has been
consistently being complied with by the appointing authorities
concerned including the various departments of the Government, etc.
5. Even though the respondent Corporation has kept totally
silent regarding the option for appointment, discharge and
reappointment in terms of Rule 7(a) & Rule 7(b) of KS & SSR Part II,
as indicated in the orders of this Court rendered as early as on
20.10.2021, we are inclined to grant even further time to the
respondent Corporation as last chance. We fail to understand as to
why the Managing Director of the Corporation has kept silent on this
crucial issue aspect of the matter in spite of the fact that this Court
had given sufficient indications to the respondents on that issue even
in the order rendered as early as on 20.10.2021.
6. Sri.Deepu Thankan, the learned Standing Counsel for the
KSRTC appearing for the respondent Corporation would submit on
the basis of instructions that the respondent Corporation will
immediately apprise this Court about their response on the stand of
the respondent Public Service Commission, and also on the matters
emanating from the directions issued by this Court in the judgments
as in judgment dated 20.09.2002 in O.P.No.13725 of 2002 and time
by one week may be granted in that regard. Since time sought for is
only by one week, we are inclined to grant the same. Accordingly,
time by one week is granted to the respondent Corporation as last
chance to apprise this Court about the aforesaid stand of the
respondent Kerala Public Service Commission and on the next steps
to be taken in the regard. Both the appellants and all the respondents
agree before us that the abovesaid considered stand of the Public
Service Commission may be taken as the considered stand vis-a-vis
Rule 3(iii) of the KPSC (Consultation by KSRTC) Rules, 1969 framed
in terms of Section 4(2) of the KPSC (Additional Functions as
Respects KSRTC) Act, 1970 (State Act 3 of 1970). Sri.Asok
M.Cherian, the learned Additional Advocate General, appearing for
the respondent State may also make necessary submissions in this
matter on the next occasion.
List the case in the admission list on 07.12.2021
Handover to both sides
Sd/-
ALEXANDER THOMAS
JUDGE
Sd/-
VIJU ABRAHAM
JUDGE
cks
25-11-2021 /True Copy/ Assistant Registrar
