The issue in this writ petition is with regard to the regularisation of an empanelled driver on his completion of 10 years of service without insisting on what is said to be a subsequently incorporated pre-condition of 120 duties per year. In fact, this issue has been adjudicated by this Court on more than one occasion. 2. Briefly stated, the petitioner was initially engaged in the respondent Corporation in 1996 through Ext.P7 as empanelled driver. From 1999 to 2004, he is said to have been disengaged on the ground of deployment of other drivers based on the advice of the Kerala Public Service Commission. In course of time, once again, beginning from 2005, the petitioner was admitted to duty.
3. While the petitioner had been continuing in service as empanelled driver, on 22.12.2011, the Government issued Ext.P3 Government Order directing the respondent Corporation to regularise the services of the empanelled drivers, conductors and Mechanics, provided they had completed 10 years of service by then. In the light of Ext.P3 Government Order, the petitioner is said to have submitted Ext.P7 representation on 03.05.2012 seeking regularisation of his services. When it was not considered, he filed W.P.(C) No. 9183 of 2014, thereby inviting Ext.P9 judgment dated 10.06.2014. While disposing of the writ petition, this Court has observed that the case of the petitioner shall be considered in the light of the decisions rendered by this Court in R.P. No. 1031 of 2013 and Writ Appeal No. 340 of 2014.
4. Yet again, when no orders were issued pursuant to Ext.P9 judgment, the petitioner filed Contempt Case (C) No. 1055 of 2014, which prompted the authorities to issue Ext.P10 orders on 03.09.2014. At any rate, this Court while considering the Contempt Case found that Ext.P10 was not in sufficient compliance with Ext.P9 judgment. At that juncture, the respondent Corporation issued Ext.P11 order rejecting the claim of the petitioner for regularisation. Leaving it open for the petitioner to lay challenge against Ext.P11 order of rejection, this Court closed the Contempt Case. Thus, the petitioner has come before this Court, once again, assailing Ext.P11 order.
5. The learned counsel for the petitioner has strenuously contended that Ext.P11 rejection order was passed based on Ext.P4 Government Order which was issued on 21.11.2013. According to the learned counsel, by then, the petitioner completed 10 years of service as an empanelled driver. Expatiating on his submissions, the learned counsel would contend that Ext.P4 Government Order is at best prospective in its operation, though it has been termed as a clarificatory Government Order. In this regard, he has placed reliance on Suresh Kumar v. State of Kerala, 2013(2) KLT 258, and also M.V. Paily v. The Chairman & Managing Director, KSRTC, an unreported judgment of this Court rendered on 25.08.2014 in W.P.(C) No. 22163 of 2014.
6. Per contra, the learned Standing Counsel for the respondent Corporation has strenuously opposed the claims and contentions of the petitioner. Firstly, she has contended that Ext.P3 Government Order cannot be read in isolation and the events that preceded the issuing of the said Government Order ought to be taken into account to have a comprehensive understanding of the scope of the said Government Order. On that count, she has submitted that initially the Corporation submitted a proposal to the Government to permit it to regularise the provisional engagees in the categories of drivers, conductors and mechanics, subject to their fulfilling the condition of completing 8 years of service and 120 duties per year. According to her, in the light of this request, the Government Order came to be issued.
7. In furtherance of her submissions, the learned Standing Counsel has stated that when Ext.P3 Government Order had led to a lot of litigation, the respondent Corporation once again approached the Government seeking a clarification on Ext.P3, which was initially issued based on the request of the Corporation to have the pre-conditions of 8 years and 120 annual duties.
8. According to the learned Standing Counsel, having felt that there was an inadvertent error committed while issuing Ext.P3 Government Order, the Government issued a clarificatory Order in Ext.P4 on 21.11.2013. The learned Standing Counsel has strenuously contended that since Ext.P4 is clarificatory in nature, it automatically becomes part and parcel of Ext.P3 Government Order and thus the conditions that have been made clear in Ext.P4 should be read into Ext.P3 order.
9. The learned Standing Counsel has taken this Court through Ext.P4 Government Order wherein the Government has acknowledged what is termed as a mistake at the time of issuing Ext.P3 Government Order. She has also stressed that even in Ext.P3 Government Order, the CMD of the respondent Corporation has been delegated the power to verify and satisfy himself the duty based criterion of 120 duties per year in respect of the provisional employees in KSRTC, it being one of the basic conditions for regularisation.
10. The learned Standing Counsel has also submitted that, though the Corporation filed R.P. No. 1032 of 2013 against the judgment in W.P.(C) No. 5241 of 2013, it being unsuccessful in the said revision petition filed W.A. No. 340 of 2014. The observations in the judgments rendered by a learned single Judge and later by a learned Division Bench respectively have been confined to the decisions taken by the respondent Corporation vis-à-vis employees who applied for regularisation prior to the disposal of the revision and the appeal.
11. It is the singular contention of the learned Standing Counsel that, if any request is made subsequent to Ext.P4 Government Order, it ought to be considered in the light of the pre-condition that has come to be incorporated by way of clarification that the employee ought to have completed 120 duties annually. The pre-condition cannot, according to her, be diluted under whatever circumstances. Therefore, the learned Standing Counsel has urged this Court to dismiss the writ petition.
12. Heard the learned Counsel for the petitioner and the learned Standing Counsel for the respondent Corporation, apart from perusing the record.
13. As has been rightly observed by the learned Standing Counsel for the respondent Corporation, in this matter the facts are not in dispute. The petitioner joined the service of the respondent Corporation as empanelled driver in 1996 and he made a representation through Ext.P7 on 03.05.2012 seeking the benefit of Ext.P3 Government Order for his regularisation.
14. Indeed, without cavil, one can accept the contention of the learned Standing Counsel that Ext.P3 Government Order was passed based on the request of the respondent Corporation to the Government to incorporate the pre-conditions of 8 years of completed service and 120 duties annually to make any candidate eligible for regularisation. The fact, however, remains that the Government after considering the issue, issued Ext.P3 Government Order incorporating the condition of 10 years of service, thereby omitting any stipulation of 120 duties annually. If one were to assume this to be an inadvertent omission, the Government could have simply incorporated the condition of 8 years; on the contrary, the Government has raised the period of qualifying service from 8 years to 10 years, thereby giving rise to a presumption, with ample justification, too, that the Government has consciously taken a decision to incorporate different conditions from what have been suggested by the Corporation. Thus, the contention of the learned Standing Counsel that Ext.P3 was an instance of inadvertence on the part of the Government, I am afraid, cannot be sustained. Indeed, the Government has consciously felt that a condition of 10 years of minimum service would suffice to make a candidate eligible for regularisation.
15. Concerning Ext.P4, it is a well settled principle of law that any subordinate legislation, unless authorised by the parent legislation is required to be prospective in its application. Though the learned Standing Counsel has taken pains to impress on the court that Ext.P4 is only clarificatory in nature and that it ought to be read along with Ext.P3, I regret my inability to persuade myself to accept the said contention either.
16. Whatever the name Ext.P4 has been called with, the fact remains that in Ext.P3, there was no condition with regard to 120 duties per year. It was subsequently incorporated only through Ext.P4. The respondent Corporation has not placed any material before this Court to establish that the Government have any delegated power to make any regulations having the statutory force with retrospective effect. Under those circumstances, the contention that Ext.P4 is clarificatory in nature having retroactive operation by way of merger with Ext.P3 is only stated to be rejected.
17. Since the learned Standing Counsel has laid much stress on the observations of the Government in Ext.P4 order, it is worthwhile to extract the same for proper appreciation.
“Ab initio, the duty criterion of 120 duty per year was a specific requirement for determining the eligibility in terms of service in respect of a provisional employee, being considered for his service regularization in the light of pay revision agreement, 2008, approved by the Government. In the introductory part of the Government Order read as 2nd paper above, sanctioning regularization of the provisional employees in service, the criterion of 120 duty per year was specified. However, a mistake by way of an omission had taken place while issuing the said Government Order in specifically laying out the said condition in the operating portion of the Government Order read as 2nd paper above. But in condition No.7 of the said Government Order it was specifically stipulated that the Chairman and Managing Director, KSRTC would verify and ensure the educational as well as other qualifications and date of birth in respect of each of the provisional employees before issuing formal orders of regularization. In exercise of the said Clause, the Chairman and Managing Director, KSRTC was delegated power to verify and satisfy himself the duty based criterion of '120 duty per year' in respect of a provisional employee in KSRTC as per basic condition for his regularization.”
(emphasis added)
18. On a perusal of the above paragraph, it is manifestly clear that the Government itself has admitted that it made a mistake while issuing Ext.P3 by omitting any reference to 120 duties annually. Correcting a mistake is different from clarifying what is supposedly ambiguous. A mistake requires correction, and the correction, in this instance, being essentially legislative in nature, only will have prospective application. In other words, clarification only amounts to clearing the clouds of ambiguity to make visible what has already been in existence; correction is incorporating something that has been missing, intended or unintended.
19. In fact, while dismissing the revision petition, the learned single Judge of this Court has tellingly observed as follows:
“The above view is further supported by the fact that, even-though insistence for 120 duties is styled as a clarification in GO MS 105/13, it is evidently clear that it is incorporation of a new eligibility criteria which was not included in GO(MS) 78/2011. Insistence of an additional eligibility criteria, for the purpose of regularization cannot be given retrospecivity, prima facie. However, sustainability of such a condition incorporated does not germine for consideration in these review petitions. This Court is of the opinion that even if incorporation of such a condition can be sustained, it cannot have a retrospective operation with respect to judgments in existence, to deny benefits granted by this Court on a proper interpretation of the terms and conditions of the GO(MS) 78/2011, which were in existence at the time of rendering the judgment.”
(emphasis added)
20. Further, when the matter was taken by the respondent Corporation in appeal before the learned Division Bench, the learned Division Bench has observed thus:
“That power is primarily one to issue instructions and not to frame Rules or Regulations, for which, authority has to be traced to Sections 44 and 45 of the Act. The power to issue instructions of general nature is essentially the power to guide in praesenti and in future and not to turn topsy-turvy or to put at jeopardy, situations already obtained. The distinction between an authorized exercise of statutory power and exercise of delegated legislation on the one hand vis-a- vis the scope of a primary legislation points to this conclusion.”
(emphasis added)
21. In the light of the above pronouncement, the singular contention of the learned Standing Counsel is that the employees who applied for regularisation prior to Ext.P4 would have the benefit of Ext.P3, but those who applied subsequently could not have it inasmuch as by then Ext.P4 came into being. Appealing as the submission appears to be, I am afraid it cannot be sustained on further analysis. To begin with, indeed, there is an observation of this Court in the revision petitions that Ext.P4 cannot have a retrospective operation with respect to judgments in existence. Nevertheless, it is not the filing of an application that gives an employee the right to regularisation. It is only the completion of 10 years that does. In this instance, the petitioner, having joined the service in 1996, completed 10 years of his service by the date of Ext.P3. The observations of this Court in R.P. No. 1032 of 2013 and batch, by any means, cannot be construed as declaring the benefit of Ext.P3 to be applicable to those candidates who applied prior to the judgment of the Court. Those observations are intended, at best, to underline the aspect that the adjudication is in personem but not in rem.
22. It is to be made clear that the respondent Corporation’s intention or its request to the Government before its issuing Ext.P3 is no measure to interpret Ext.P3, which is to be read and interpreted going by the plain words employed therein. It is stressing the obvious to state that it is the plain words employed in the instrument, rather than the intention of the maker, that aid the interpretation, for intention is always gathered from the expressions employed in the instrument.
23. Viewed from another angle, one may have to examine whether Ext.P3 has given any residuary power to the Corporation to read into it any conditions, as it has sought to project now. In this regard, I may examine the submission of the learned Standing Counsel that Ext.P4 expressly records that CMD of the Corporation was given the said power. Indeed, condition No.7 of Ext.P3, as referred to in the extract above, stipulated that the Chairman and Managing Director, KSRTC would verify and ensure the educational as well as other qualifications and date of birth in respect of each of the provisional employees before issuing formal orders of regularization. The ‘other qualifications’ used along with educational qualifications is required to be understood on the principle of ejusdem generis - other qualifications as have been prescribed along with educational qualifications. In other words, they are qualifications which have already been statutorily incorporated or imposed.
24. Unless and until the Government incorporated 120 duties per year as a precondition, mere intention or recommendation of the Corporation regarding 120 duties per year cannot transform itself into a legislative command.
25. Insofar as the petitioner’s disengagement in the middle is concerned, that very issue may not deter us, nor has it been canvassed by the respondent Corporation. At any rate, in Suresh Kumar v. State of Kerala (2013 (2) KLT 258), this Court has observed as follows:
“There is also no case that anyone of the petitioners deliberately did not perform 120 duties an year even though the same was offered to them by the K.S.R.T.C. at any point of time. The stand of the K.S.R.T.C. that the services of the petitioners are not liable to be regularised for not performing 120 duties an year cannot be appreciated and Ext.P3 order passed in that regard is therefore quashed.”
26. While making his submissions, the learned Counsel for the petitioner has handed over across the Bar to this Court what is said to be an order passed by the respondent Corporation on 25.07.2014 regularising the services of another similarly situated employee. In fact, in the said order, the Corporation has correctly applied the principle of completion of 10 years and non-application of 120 duties per year to those candidates who completed their 10-year service by the time of Ext.P4 Government Order and justified the regularisation of the said employee in the following words:
“The petitioner entered in the service of the Corporation as empanelled conductor at Kasargod depot on 22.11.1999 and continuing in the service. In obedience to the 2nd referred judgment, 3rd referred order was issued. In the 3rd referred order, 10 years of service with 120 duties per year was a condition for regularization. But it has been challenged by the petitioner before the Hon'ble High Court of Kerala. In view of the direction contained in the judgments of the Hon'ble High Court that 120 duties per year is not mandatory as per the 1st referred G.O. The petitioner has completed 10 years of service as on 22.12.2011. So he is eligible for regularization. Hence, the petitioner is hereby regularised in obedience to the judgment of the Hon'ble High Court of Kerala.”
(emphasis added)
27. Thus, putting the issue in perspective, this Court is inclined to hold, and accordingly holds, that the contention of the respondent Corporation that an employee ought to have filed a representation before the issuance of Ext.P4 is unsustainable. It is worthwhile to reiterate that it is the fulfilling of the condtions incorporated in Ext.P3 that gives the right to regularisation, but not that of filing an application before Ext.P4. It is, therefore, held that once a person has completed 10 years by the time of Ext.P3, notwithstanding his making an application subsequently, his rights cannot be defeated and accordingly the petitioner is entitled to be regularised in terms of Ext.P3 Government Order. Needless to observe, the respondent Corporation may complete the process of petitioner's regularisation as expeditiously as possible.
With the above observations, this writ petition stands allowed. No orders as to costs.
sd/- DAMA SESHADRI NAIDU, JUDGE.
rv