KERALA PUBLIC SERVICE COMMISSION Vs. R.ANILKUMAR

JUDGEMENT

(1.) The appeals are against the common judgment in six writ petitions, wherein the petitioners were all empanelled drivers claiming relaxation of age in the recruitment of Reserve Drivers called for by Exhibit P1 notification. Exhibit P1 notification was issued by the Kerala Public Service Commission (hereinafter referred to as "Commission") and the direct recruitment of Reserve Drivers to be made in the Kerala State Road Transport Corporation (hereinafter referred to as "the Corporation") called for candidates within the age group of 21 to 40. The benefit of usual relaxation to SC/ST/OBC were applicable. A further concession to provisional hands working in the Corporation to the extent of their provisional service, subject to a maximum of five years, from the upper age limit to those provisional employees who were within the prescribed age limit on the date of first appointment, is the bone of contention in all these cases. There was some controversy with respect to the user of the terms "provisional" and "temporary". While the Commission maintained that the relaxation was only with respect to temporary appointments made under Rule 9(a)(i) of the Kerala State and Subordinate Services Rules, 1958 (for short "KS & SSR") the writ petitioners contended that the words used in Exhibit P1 notification is not "temporary", nor does exhibit P1 specifically speak of Rule 9(a)(i) of KS & SSR and their empanelment as drivers in the various units of the Corporation would qualify as "provisional" service, entitled to be granted relaxation as per Exhibit P1 notification. The Commission also attempted to draw a distinction between an "appointment" and a "casual engagement". According to the Commission, a temporary appointment would mean a recruitment made from an Employment Exchange or through the Commission itself, without following the regular mode of recruitment, but nevertheless from a valid source to tide over exigencies caused by the delay of a regular recruitment process. The empanelment of the writ petitioners was not even to tide over such exigencies, but only to get over the absence of regular hands on a given day, to man all the services. The drivers empanelled at the various units are called upon to take on the duties on a daily basis in the event of absence of regular drivers or other drivers also. The linchpin of the contention raised by the Commission is that those who are eligible for relaxation are persons who are appointed from a valid source and who are continued albeit with artificial breaks for a long period and not intermittent engagements to which the petitioners in the writ petition were subjected to.

(2.) The learned Single Judge found that the word "provisional hands" used in the notification is indicative of persons appointed on temporary basis and empanelment of drivers on daily wage basis cannot be contended to be distinct from other temporary appointments. We are also of the opinion that nothing much turns on the words "provisional" and "temporary", since they have been loosely used by the Corporation as also the Government. The contention of the Commission is that the provisional employees referred to in Exhibit P1 notification is with reference to Rule 9(a)(i) of the KS & SSR. KS & SSR is admittedly a statutory rule applicable to the State and Subordinate services; which service does not include the services under the Corporation. The Corporation might have adopted the KS & SSR, 1958, but such adoption does not make the rule statutory and they are only in the nature of administrative rules having no statutory force [vide Jacob Puthuparambil & Others v. Kerala Water Authority and Others, 1991 1 SCC 28]. Before we delve into the legal aspects raised in the above case, we have to notice the facts in each of the appeals.

(3.) The Commission is the appellant in all these appeals and the petitioners before the learned Single Judge are the respondents along with the State and the Corporation. The petitioners are referred to herein as respondent(s). In W.A. No. 2120 of 2012, the respondent claims to have been engaged for the last eight years at Kozhikode Depot as an empanelled driver on daily wages as per the certificate Exhibit P3 issued by the District Transport Officer, Kozhikode. In W.A. No. 2121 of 2012, the certificate is issued by Assistant Transport Officer, Poovar, to similar effect with effect from 6.1.2005, that too on daily wages. W.A. No. 2071 of 2012 evidences, by Exhibit P2 series of certificates, the empanelment of respondents 1 to 4 in various units as certified by the Assistant Transport Officer or District Transport Officer. The 5th respondent does not produce any such certificate. W.A. No. 2073 of 2012 and 2055 of 2012 also indicates similar empanelment for various periods. The source from which the empanelment was made in none of these cases are discernible. Nonetheless it is undisputed that the appointment was not from the Employment Exchange or any other valid source as indicated above. There were no appointment orders nor were the specific dates on which the said persons were engaged, evident from the records produced.