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RAM PRASAD versus U.P.S.R.T.C. THRU MANAGING DIRECTOR AND OTHERS

High Court of Judicature at Allahabad

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Ram Prasad v. U.P.S.R.T.C. Thru Managing Director And Others - WRIT - A No. 48316 of 2004 [2005] RD-AH 492 (22 February 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Writ Petition No.  48316 of 2004

Ram Prasad and others

Vs.

U.P. State Road Transport Corporation & Ors.

And

Civil Misc. Writ Petition No.48160 of 2004

Lakhan Lal Uttam          Vs.     State of U.P. & another

And

Civil Misc. Writ Petition No. 48624 of 2004

Jai Prakash Yadava & others   Vs.  State of U.P. & others

And

Civil Misc. Writ Petition No. 48779 of 2004

Mahendra Prasad Chaubey & anr. Vs. Pradhan Prabhandhak  & others

And

Civil Misc. Writ Petition No. 51506 of 2004

Tara Shankar Yadav & others   Vs.  U.P.S.R.T.C. & others

And

Civil Misc. Writ Petition No. 51673 of 2004

Dinesh Kumar Rai & others   Vs.  State of U.P. & others

And

Civil Misc. Writ Petition No. 51742 of 2004

Awadhesh Kumar Mishra & others Vs. State of U.P. & others

And

Civil Misc. Writ Petition No. 52488 of 2004

Yogendra Chauhan & others    Vs.   State of U.P. & others

And

Civil Misc. Writ Petition No. 53059 of 2004

Bijendra Pandey & others   Vs.  State of U.P. & others

And

Civil Misc. Writ Petition No. 53253 of 2004

Akhilesh Chandra Mishra & others   Vs.  State of U.P.& others

And

Civil Misc. Writ Petition No. 53439 of 2004

Anand Swaminathan     Vs.    U.P. S.R.T.C. & others

And

Civil Misc. Writ Petition No. 53748 of 2004

Daroga Tiwari & others     Vs.   State of U.P. & others

And

Civil Misc. Writ Petition No. 53851 of 2004

Shri Krishna Singh & others   Vs.  State of U.P. & others

And

Civil Misc. Writ Petition No. 53852 of 2004

Deena Nath Singh & others   Vs.  State of U.P. & others

And

Civil Misc. Writ Petition No. 53854 of 2004

Shri Sant Kumar & others   Vs.  U.P.S.R.T.C. & others

And

Civil Misc. Writ Petition No. 54385 of 2004

Raj Nath Yadav & others   Vs. Pradhan Prabandhak & others

And

Civil Misc. Writ Petition No. 54395 of 2004

Hamendra Singh & others   Vs.  State of U.P. & others

And

Civil Misc. Writ Petition No. 54735 of 2004

Hari Shanker Pandey & ors. Vs.  Pradhan Prabandhak & ors.

And

Civil Misc. Writ Petition No. 55212 of 2004

Umesh Prasad Shukla & others  Vs.  State of U.P. & others

And

Civil Misc. Writ Petition No. 55252 of 2004

Surya Narayan Pandey & others Vs. State of U.P. & others

And

Civil Misc. Writ Petition No. 55277 of 2004

Arvind Kumar Pandey & others Vs.  State of U.P. & others

And

Civil Misc. Writ Petition No. 56264 of 2004

Ashok Kumar Srivastava Vs. State of U.P. & others

And

Civil Misc. Writ Petition No.264 of 2005

Ranveer Singh & others Vs. U.P.S.R.T.C. & others

And

Civil Misc. Writ Petition No. 784 of 2005

Anil Kumar Pandey & others   Vs.  U.P.S.R.T.C. & others

And

Civil Misc. Writ Petition No. 1170 of 2005

Sanjay Kumar Chauhan & others   Vs.   Pradhan Prabandhak  & others

And

Civil Misc. Writ Petition No. 1457 of 2005

Aman Singh & others    Vs.  State of U.P. & others

And

Civil Misc. Writ Petition No. 1796 of 2005

Brijesh Kumar & others Vs.  State of U.P. & others

And

Civil Misc. Writ Petition No. 1958 of 2005

Shyam Narain Pandey & others  Vs.  State of U.P. & others

And

Civil Misc. Writ Petition No. 2054 of 2005

Pushpendra Kumar Singh & others  Vs.  State of U.P. & others

And

Civil Misc. Writ Petition No. 2197 of 2005

Shamshad Khan & others   Vs.  State of U.P. & others

And

Civil Misc. Writ Petition No. 2357 of 2005

Shobh Nath Yadav      Vs.   State of U.P. & others

And

Civil Misc. Writ Petition No. 2582 of 2005

Viyas Muni & others    Vs.  Pradhan Prabandhak  & others

And

Civil Misc. Writ Petition No. 2583 of 2005

Jitendra Rai    Vs.   Pradhan Prabandhak (Karmik) & others

And

Civil Misc. Writ Petition No. 2601 of 2005

Tarkeshwar Pandey & ors. Vs. Pradhan Prabandhak  & ors.

And

Civil Misc. Writ Petition No. 3005 of 2005

Indra Jeet Yadav & others  Vs. Managing Director & others

And

Civil Misc. Writ Petition No. 3020 of 2005

Lal Sahab Tiwari & others  Vs. Pradhan Prabandhak & others

And

Civil Misc. Writ Petition No. 3034 of 2005

Vijay Kant Dubey & others  Vs.  State of U.P. & others

And

Civil Misc. Writ Petition No. 3081 of 2005

Ravendra Tiwari & others   Vs.  U.P.S.R.T.C. & others

And

Civil Misc. Writ Petition No. 3093 of 2005

Ashok Kumar & anr. Vs.  Pradhan Prabandhak  & others

And

Civil Misc. Writ Petition No. 3177 of 2005

Harsh Bardhan Rai & others   Vs.  State of U.P. & others

And

Civil Misc. Writ Petition No. 3252 of 2005

Brijesh Kumar Dubey & others  Vs.  State of U.P. & others

And

Civil Misc. Writ Petition No. 3349 of 2005

Nawab Singh & others   Vs.  State of U.P. & others

And

Civil Misc. Writ Petition No. 3445 of 2005

Raj Kumar Rai & others   Vs.   State of U.P. & others

And

Civil Misc. Writ Petition No. 3600 of 2005

Satish Kumar Pandey       Vs.   State of U.P. & others

And

Civil Misc. Writ Petition No. 3720 of 2005

Jagdish Singh vs. Managing Director & others

And

Civil Misc. Writ Petition No. 4010 of 2005

Surendra Nath Yadav & ors.  Vs.  Pradhan Prabandhak & ors.

And

Civil Misc. Writ Petition No. 4094 of 2005

Udai Veer & others     Vs.  State of U.P. & others

And

Civil Misc. Writ Petition No. 4379 of 2005

Pramod Kumar Singh & Ors.vs. General Manager & Ors.

And

Civil Misc. Writ Petition No. 4650 of 2005

Amar Singh and others vs. State of U.P. and others

And

Civil Misc. Writ Petition No. 4891 of 2005

Ram Kirpal & ors.  Vs.  Pradhan Prabandhak & ors.

And

Civil Misc. Writ Petition No. 4887 of 2005

Satya Prakash Rai & ors.  Vs.  Pradhan Prabandhak & ors.

And

Civil Misc. Writ Petition No.5479 of 2005

Shri Krishna Pandey and others vs. State of U.P.& Ors.

And

Civil Misc. Writ Petition No.5613 of 2005

Abdul Salam and others vs. U.P.S.R.T.C. & Ors.

And

Civil Misc. Writ Petition No.5884 of 2005

Sheo Kumar Sharma & others Vs. State of U.P. & others

And

Civil Misc. Writ Petition No.5885 of 2005

Balveer Singh & others Vs. U.P.S.R.T.C. & others

And

Civil Misc. Writ Petition No. 6168 of 2005

Lal Chandra Gupta & another vs. Pradhan Prabandhak & Ors.

And

Civil Misc. Writ Petition No. 6248 of 2005

Anirudha Singh vs. State of U.P.and others

And

Civil Misc. Writ Petition No. 6298 of 2005

Nand Lal Yadav and others  vs. State of U.P. and others

And

Civil Misc. Writ Petition No. 6736 of 2005

Ramesh Rai & others Vs. Pradhan Prabandhak & others

And

Civil Misc. Writ Petition No. 7441 of 2005

Rameshwar Singh & others Vs. U.P.S.R.T.C. & another

Hon'ble Vineet Saran, J.

Since all these writ petitions are knit together by similar facet of controversy, based on common questions of fact and law, they have been heard together and are being disposed of by a common judgment. Civil Misc. Writ Petition No. 48316 of 2004 shall be treated as the leading petition. Counter and rejoinder affidavits have been exchanged in the leading writ petition, which shall be referred to in this judgment. Some short counter affidavits and rejoinder affidavits have also been filed in certain other writ petitions, but not in all. With the consent of the learned counsel for the parties these writ petitions are being disposed of at the admission stage itself.

I have heard both the sides at length on various dates. Sri V.K.Singh, learned counsel for the petitioners in the leading writ petition, led the arguments on behalf of the petitioners, and the other counsel appearing for the petitioners in all other writ petitions have adopted the same. Similarly, the arguments on behalf of the respondent - U.P. State Road Transport Corporation (hereinafter referred to as the Corporation) were advanced by Sri Sameer Sharma, Advocate and all other counsel appearing for the Corporation in the other writ petitions have adopted his arguments. Learned Standing Counsel appearing for the State of U.P., impleaded in some writ petitions, has also adopted the arguments of Sri Sharma.

The petitioners in all the writ petitions are drivers who had been engaged by the Corporation for driving their buses, on contract basis, on payment of 35 paise per kilometre. All contract drivers, such as the petitioners, have been continuing to work with the respondent-Corporation for several years ranging from 2 to 8 years. The contracts of those whose work was not found satisfactory have been terminated, but where the Corporation found the working to be satisfactory (such as the petitioners), they were allowed to continue to work on contract basis. Such contract drivers were not engaged on every working day but only when requirement for such work arose. From the pleadings it appears that the average working days of such contract drivers was between 150 days to 300 days in a year, as per the details given in paragraph 24 (a) to 24 (o) of the writ petition, which has not been categorically denied in the counter affidavit.

As the Corporation was running in losses, the State Government had imposed a ban on sanction of posts of drivers and their appointments. The admitted position is that since the year 1989, no regular selection and appointment on the post of driver has been made by the respondent-Corporation. In order to fulfill its obligation of providing adequate bus service to the public, the Corporation engaged the drivers on contract basis, as there were more buses to be plied and the State Government had not sanctioned sufficient number of regular posts of drivers.

The State Government has now on 25.10.2004 (although not in the pleading but as stated by Sri Sameer Sharma during the course of arguments) sanctioned 1500 posts of drivers in the first phase. Thereafter on 28.10.2004, the Corporation issued an advertisement for recruitment of 1400 drivers, after reserving 100 posts for appointment to be made on compassionate grounds. It has also been stated at the Bar by Sri Sharma that in the very near future, further posts of drivers are again likely to be sanctioned by the State Government in the second phase.

In the impugned advertisement dated 28.10.2004, for making an application for appointment as driver, certain minimum qualifications have been specified. The petitioners contend that they had been initially engaged on contract basis within the age group specified in the advertisement but while working with the Corporation, they have become over age and thus they should not be denied appointment merely on such basis. It has also been contended that since they have worked as drivers with the Corporation for several years to their satisfaction, they should now be adjusted and regularized against the advertised vacancies, and that relaxation in the maximum age limit should be granted to them.

The prayers made in the leading writ petition are quoted below:-

a) to issue a writ, order or direction in the nature of Mandamus commanding the respondents to give regular appointment against the vacancies advertised in the advertisement (Annexure no.4 to the writ petition) on preferential basis having regard to the past services of the petitioners;

b) to issue a writ, order or direction in the nature of Mandamus commanding the respondents to give relaxation in the maximum age limit for the purposes of regular appointment on the post advertised in the advertisement (Annexure no.4);

c) to issue any other writ, order or direction to which the petitioners may be found entitled in law;

d) to award the cost of the petition to the petitioners.                  

When these cases were initially taken up for hearing, the parties were required to specify the various categories of cases in which all the petitioners would fall. On the basis of the details furnished by the learned counsel for the parties, broadly the petitioners would fall in the following categories:-

(i) Those who were initially engaged on contract basis within the prescribed age of 25½ to 35 years and still remain in such prescribed age group.

(ii) Those who were initially engaged on contract basis within the prescribed age of 25½ to 35 years but have now become overage.

(iii) Those who were engaged on contract basis initially outside the prescribed age group.

(iv) Those engaged through a contractor and also paid through the contractor, i.e. where there was no direct contract with the Corporation.

(v) Those engaged on contract basis and their contracts have already been terminated and are no longer in the engagement of the Corporation.

(vi) Such Apprentice trainees who (despite the direction of the Supreme Court) could not be absorbed and have been engaged on contract basis.

Although the above six categories have been specified by the counsel for the parties, but no arguments were advanced regarding the last four categories i.e. categories no. (iii), (iv), (v) and (vi). Submissions have been made only with regard to the first two categories i.e. categories no. (i) and (ii) and hence it is only such cases falling in the first two categories which are being considered by me.

Briefly the submission made with regard to the contract drivers falling in the first category is that since they have worked with the Corporation to their satisfaction for a substantial period, preference should be given to them for being regularized on the sanctioned post of drivers, which have now been advertised. Their driving capabilities have already been tested and thus no further screening would now be required in their case.

With regard to the petitioners falling in the second category, it has been submitted that since no selection for appointment on the post of drivers has been made by the Corporation ever since the year 1989, and the petitioners have continued to work on contract basis, the Corporation being a public body, a duty is cast on them to hold regular selection and not by-pass the same by keeping persons on contract basis, and when the occasion for regularizing them on sanctioned post arises, discard them by practicing the rule of hire and fire. Concisely what has been submitted is that all the petitioners were initially engaged on contract basis after undergoing the selection process and facing the Regional Selection Committee, of which the Regional Manager was the Chairman, and the other members were also the officials of the Corporation. After selection, they were engaged as drivers and performed their duties to the satisfaction of the Corporation, in some cases since 1996, and are still regularly working with the Corporation.

The contention of the petitioners, thus, is that direction for regularization in service of both these categories of contract drivers ought to be issued on the post of regular drivers, which have now been sanctioned. In the alternative, it has been urged that they should at least be given preference in appointment, and some relaxation in the prescribed maximum age, as well as prescribed height, should be provided to them as they have already satisfactorily worked with the Corporation and their performance has already been tested. They contend that they would be entitled to the benefit of second proviso to Regulation 14 of Regulations of 1981 and be treated as already working in the Corporation, and thus the upper age limit should be relaxed by five years in their cases. It has also been urged that under the third proviso to Regulation14, power to relax the upper age limit vests with the Corporation, which discretion, in the facts and circumstances of this case, should be exercised in their favour. As far as the prescription of the maximum height of 5 feet 5 inches in the advertisement, the submission is that those below the prescribed height have already worked to the satisfaction of the Corporation and thus their candidature should not be ignored on this count.

On behalf of the respondents it has been submitted that work was being taken from the petitioners only on adhoc basis on contract, when there were no sanctioned posts for making regular appointments. Once the posts have been sanctioned, it is in the interest of the Corporation to choose the best hands available for making regular appointments, for which appropriate mode is to advertise the post and invite applications, and the Corporation has adopted the same. The existence of the power with the Corporation to relax the maximum age is admitted, but such power is discretionary and is to be exercised only when the same is in the interest of the Corporation or for fair dealing. According to the respondents, the second proviso to Regulation 14 would not be attracted in the present case and the words therein that "candidates, already working in the Corporation" would cover the cases of only those regularly working and not on contract basis. In this regard, reliance has been placed on Regulation 2(ii), which provides that Regulations of 1981 shall not apply to those working "on contract".

Justifying the prescription of minimum and maximum age of 25½ and 35 years for appointment as drivers, it has been submitted that although Regulation 14 may prescribe the age for direct recruitment on any post to be between 18 to 28 years, but since section 4(2) of the Motor Vehicles Act, 1988 provides that no person under the age of 20 years shall drive a transport vehicle, coupled with the provision in the Circular of the Corporation dated 12.2.1993 prescribing a minimum experience of five years of driving a transport vehicle as necessary for appointment on the post of driver, the minimum and maximum age for such appointment has been provided in the said Circular to be 25 ½  to 32 years (which has subsequently been amended to 35 years, as stated by Sri Sharma at the Bar).

The respondents have further urged that there was no proper selection of contract drivers in accordance with the provisions of Regulations of 1981 and the Circular of the Corporation dated 12.2.1993. The above provide for a stringent two tier recruitment procedure. After qualifying the first test to be conducted by the office of the concerned Regional Manager, those selected had to qualify a second test by the Training Institute, and it was only thereafter that the final select list was prepared and appointments of drivers was to be made. According to the respondents, no such procedure had been adopted in the case of selection and engagement of contract drivers, which was done only through a slip shod selection process. The respondents also assert that quite a few of the contract drivers who fell in category (i) (i.e. who were initially engaged and still remain within the prescribed age) and had applied, have been cleared in the first round of selection process and thus the apprehension that all the contract drivers are being ignored or discriminated in the on going selection process is misconceived.

Besides the above submission made on merits, a preliminary objection has also been raised by Sri Sameer Sharma that the petitioners no. 5 to 15 in the leading writ petition had filed an earlier writ petition no.41717 of 2004 with the prayer for a mandamus commanding the respondents to give regular scale of pay, allowances and all other service benefits admissible to regular drivers of the Corporation. Thus, according to the respondents, this would be a second writ petition on their behalf, and would thus not be maintainable. In my view, this objection is not worthy of acceptance on two counts. Firstly because it is not the petitioners no. 5 to 15 in the leading writ petition alone who have approached this Court. There are several other petitioners also, on whose instance the issues involved in these writ petition require to be decided. And secondly, the prayers in both the writ petitions are different. In the earlier writ petition the prayer was for giving regular pay scale etc. as admissible to regular drivers, whereas this writ petition has been filed for a direction to give regular appointment against the vacancies advertised, on preferential basis, and to give relaxation in the maximum age limit to the petitioners for the purposes of appointment on the advertised posts. As such, earlier there was no occasion for the petitioners to pray for regularization, as no posts were then available. Now that the posts have been sanctioned, then alone the petitioners could pray for regularization and appointment on such posts. Thus the ratio of the decision of this Court in the case of Rakesh Kumar Agrawal vs. State Bank of India  2003 (3) E.S.C. 1333 which holds that "even if a party does not pray for the relief in the earlier writ petition, which he ought to have claimed in the earlier petition, he cannot file a successive writ petition claiming that relief, as it would be barred by the principle of constructive res judicata" would not apply in the present case.

Another preliminary objection has been raised that these petitions praying for a writ of mandamus would not be maintainable, as it is a well recognized principle of law that no mandamus can be issued unless there was a distinct demand for what was desired to be enforced and that demand had not been met with, that is to say that "a demand for justice and its refusal must precede the filing of a petition asking for a direction or writ of mandamus" as held by the Apex Court in the case of Amrit Lal vs. Collector of Central Excise AIR 1975 SC 538. In the present case, petitioners could hardly be said to have got an opportunity to make such a demand prior to the filing of these writ petition. As soon as the posts were sanctioned on 25.10.2004, the Corporation immediately within three days, advertised the same on 28.10.2004. Some of the petitioners had already earlier filed a writ petition on the principle of equal pay for equal work but there was no prayer for regularizing them in the service on the posts of drivers as the same were not available for such regularization. It was only after the posts were sanctioned that such prayer for regularization could be made, but since the posts were advertised within three days, the petitioners did not get sufficient opportunity to approach the authority before knocking the doors of this Court for grant of mandamus.  Had they first represented to the Corporation demanding such regularization and then filed these writ petitions, they would have missed the bus, as fresh appointments to the posts on which they are claiming regularization or relaxation for appointment, would have been filled up. The settled principles have also to be considered and applied in the facts and circumstances of each case so that complete justice is given to the parties. As such, in my view, these writ petitions cannot be thrown out merely on this ground as has been raised by the learned counsel for the respondents.

Further, the other objection of the respondents that the petitioners had been appointed on contract and in case if they are to derive any advantage of the provisions of the contract, they have an alternative remedy of approaching the Civil Courts for such enforcement, also does not have much force. From the prayers made in these writ petitions, it is clear that the petitioners are, as such, not claiming enforcement of any provision of the contract on the basis of which they have worked as drivers. On the other hand, they are praying for either regularisation in service or grant of relaxation of the minimum qualifications for such appointments.

Accordingly, in my view, these petitions ought to be decided on merits, regarding which both the sides have relied on large number of decisions, and the relevant ones shall be considered by me at the stage of deciding the issues involved.

Appointment and service conditions of the employees of the Corporation, including its drivers, are governed by U.P. State Road Transport Corporation Employees (other than officers) Service Regulation, 1981 (for short, Regulations of 1981). The same have statutory force, having been framed under section 45 (2) (c) of the Road Transport Corporation Act, 1950. Before dealing with the submissions of the learned counsel for the parties in detail, it would be necessary to notice certain provisions of Regulations of 1981 which would be relevant for the decision of these cases. The same are Regulations 2, 6, 9(ii), 10, 11, 14 (1), 17 and 20; the relevant extract of which are quoted herein below:-

PART I - GENERAL

Applicability:

2. These Regulations shall apply to all the employees (other than Officers) except those who are working-

(i) on deputation

(ii) on contract

(iii) as part-time :

Provided that ...............

Note - Persons working on deputation shall be governed by the rules, regulations etc. of their parent department and those on contract shall be governed by the terms and conditions of the contract.

Power to relax regulation

6. Where the Board is satisfied that the operation of any regulation relating to the conditions of service causes undue hardship in any particular case, it may notwithstanding anything contained in these regulations but with the previous sanction of the government, dispense with or relax the requirements of that regulation to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner or in the interest of the Corporation.

Definitions:

9. In these Regulations, unless there is anything repugnant in the subject or context -

(i) . . . . .  .

(ii) "Appointing Authority" means the Board or an officer authorised by the Board to make appointment;

(iii) . . . . . . .

PART II - CADRE

Creation of posts and strength of the service:

10. (1) Subject to such directions as may be given by the State Government, the power to create posts shall vest in the Board or in any other authority to whose power in this behalf may be delegated by the Board.

PART III - RECRUITMENT

Sources of:

11. (1) Recruitment to various categories of posts in the service shall be made from one or more of the following sources as decided by the Board from time to time:-

(a) by direct recruitment;

(b) by promotion from amongst Corporation employees as have put in at least 3 years service in the next lower post through a departmental test or interview in any other manner prescribed by the Board from time to time;

(c) by deputation or on contract.

(2) notwithstanding anything contained in sub-regulation (1) the recruitment may be made from any other source approved by the Board.

(3) Subject to such direction as may be given by the Board, employees possessing requisite qualifications shall also be entitled to compete in direct recruitment.

PART IV - QUALIFICATIONS

Age:

14.(1) A candidate for direct recruitment to any category of post in the service must have attained the age of 18 years and must not have attained the age of more than 28 years on January 1 of the year of recruitment, if the vacancies are advertised or notified during the period January 1 and June 30 and on July 1, if the vacancies are advertised/notified during the period July 1 to December 31:

Provided that the upper age limit in the case of candidates belonging to the Scheduled Castes, Scheduled Tribes and such other categories as may be notified by the Government from time to time shall be greater by such number of years as may be specified:

Provided further that, in the case of candidates, already working in the Corporation, the upper age limit shall be greater by five years:

Provided also that the Corporation may relax the upper age limit in respect of a candidate or class of candidates and in respect of any post or category of posts if they consider it necessary for fair dealing or in the interest of the Corporation.

Physical fitness:

17(1)  No candidate shall be appointed to a post in the service unless he be in good mental and bodily health and free from any physical defect likely to interfere with the performance of duties. Before a candidate is finally approved for appointment, he shall be required to produce a medical certificate of fitness, in the form prescribed in Annexure-''D' from the Chief Medical Officer, nominated or approved by the Corporation.

(2) A person appointed to the post of driver, will be required to undergo medical test, particularly vision test, every year or at such intervals as may be prescribed by the General Manager from time to time.

(3) The service of a person who fails to pass the fitness test, referred to in the sub-regulation (2) may be dispensed with:

Provided that the persons, whose services are so dispensed with may in the discretion of the Corporation, be offered alternative job.

PART V - PROCEDURE FOR RECRUITMENT

Procedure for direct recruitment:

20.(1) For the purposes of direct recruitment, the appointing authority shall constitute a Selection Committee comprising not less than three members.

   (2) The Selection Committee shall scrutinize the applications and require the eligible candidates to appear in the competitive examination/Trade test and/or an interview as the appointing authority may decide.

NOTE - The syllabus for competitive examination shall be such as may be prescribed by the appointing authority from time to time.

   (3)   ....................

   (4)   ....................

  (5)    ....................

***************************

Extracts of Section 4 of the Motor Vehicles Act, 1988, which may also be relevant for this case, are reproduced below:-

4. Age limit in connection with driving of motor vehicles.-

(1) No person under the age of eighteen years shall drive a motor vehicle in any public place:

Provided.............

(2) Subject to the provisions of Section 18, no person under the age of twenty years shall drive a transport vehicle in any public place.

(3) ............

******************

The English translation of the relevant extracts of the Circular dated 12.2.1993 relating to the recruitment of drivers are quoted below:-

"Head Quarter of Transport Corporation

Lucknow

No. 762 CENT/95/84 Corporation/91         Dated: Feb. 12, 93.

Sub:-  Regarding procedure for selection of Drivers

and the training of Drivers/Conductors.                      

It is to inform that the Board of Directors in its meeting held on 29.10.92 discussed the existing procedure for selection and training of Drivers/Conductors and it was decided to make the following changes therein.

(A) Procedure for selection of drivers

Now the candidates shall have to appear in two tests for appointment to the posts of Drivers. The test held at the regional level shall be treated as a qualifying test and the test to be held after training in the Training Institute, Kanpur shall be called Final Test and the final select list shall be prepared only on the basis of test held in the Training Institute.

2. The selection committee holding qualifying test at the regional level shall comprise the following :-

i.    Regional Manager - Chairman

ii.   Service Manager -  Member

iii. Assistant Regional Manager

(Personnel/the Senoirmost A.R.M.

of the Region Concerned)               -  Member

3. The selection committee holding Final test after the training in the Training Institute, Kanpur shall consist of the following:-

1. The Principal of Training Institute - Chairman

2. The Regional Manager/Service

Manager of the Area concerned         - Member

3. A technical Officer nominated

by  Headquarters - Member

Qualifications

The following qualifications are now prescribed for the posts of Drivers after effecting changes in the qualifications prescribed earlier :-

1.Educational     Qualifications Class 8 pass

2. Driving Licence: 5-Year old heavy vehicle driving licence including at least three year old endorsement of driving Public Service Vehicle.

3. Minimum Height: (A) 5' 5" for the candidates of plains.(B) 5' 2" for the candidates of Hill areas.

4. Age limit: Lower age: 25½  years Upper age : 32 years.The upper age limit for the scheduled castes/ Tribes candidate shall be 37 years.

B. Training system for the Drivers after their qualifying test :    . . . . . . . . . . . . . . . .

C. Training for Conductors :  . . . . . . . . . . . ."

***************

The minimum qualification prescribed by the advertisement dated 28.10.2004 for applying for appointment on the post of driver are that the applicant should :

1. possess a licence to drive a transport vehicle for 5 years;

2. be class 8 pass;

3. be of minimum 5' 5" height; and

4. be between 25 ½ years to 35 years as on 1.7.2004.

********************

In the backdrop of the aforesaid facts of these cases and the submissions made by the learned counsel for the parties as well as in the light of the relevant provisions of law, the two issues which would require consideration of this Court are:-

(a) Whether on the basis of having worked with the Corporation as driver on contract basis, a direction should be issued to the Corporation to regularize the petitioners in service when the posts of drivers have now been sanctioned ?

(b) Whether on the basis of having worked with the Corporation, such contract drivers would be entitled to any preference in appointment and relaxation in the prescribed minimum qualification ?

In view of the law laid down by the Apex Court as well as this Court, the answer to the first issue would clearly be in the negative. In the absence of any statutory rule or scheme providing for regularization of contract drivers, the petitioners would not be entitled to be straightaway regularized in service on the posts of driver which have now been sanctioned and advertised. This Court cannot direct regularization of petitioners who are working on contract basis de hors the service/recruitment rules. A Full Bench of this Court in the case of Lal Mohammad vs. Indian Railway Construction Company Limited 2004 Allahabad Civil Journal 1675 = (2004) 3 ESC 1362, while considering the case of regularization of those working on casual/adhoc basis for a long period, held that "it cannot be lost sight of that even if a person has served for long years that fact by itself can not furnish a valid reason for regularization of his service without anything more as in that event it will not meet the requirement of the action being in public interest. It cannot also be lost sight of that grant of regularization in effect results in relaxation of the conditions regulating the recruitment etc. prescribed under the  Rules which cannot be set at naught for a regularization as if they never existed. The regularization, therefore, if at all has to be in accordance with the Rules and not dehors the Rules".

The Supreme Court in State of Himachal Pradesh vs. Suresh Kumar Verma  1996(72) F.L.R. 804 has held that the Courts cannot direct for regularization of daily wage workers or else the judicial process would become the other mode of recruitment de hors the rules.

A Division Bench of this Court in Mukhya Nagar Adhikari vs. R.K.Singh (2004) 2 Selected Allahabad Cases 541 was of the view that where a person was not appointed on a regular sanctioned post but on contract basis for a World Bank Project because of additional work under the project, and such appointment was not made under the service rules, then such person could not claim for regularization on any post covered by the service rules.

The essence of what was held by the Supreme Court in the recent case of A.Umarani vs. Registrar, Cooperative Societies (2004) 7 SCC 112 is that no regularization would be permissible if the appointments have been made in contravention of the statutory rules and thus direction for payment of equal pay for equal work and for regularization of such employees could not be granted de hors the rules. Such view has also been taken earlier by the  Apex Court in the cases of Dr. A.A. Pargaonkar vs. State of Maharashtra 1994 (69) F.L.R. 695 and by this Court in the cases of State of U.P. vs.  Rajendra Prasad 2004(1) UPLBEC 60; State of U.P. vs. Madhyamik Shiksha Parishad 2004 (1) UPLBEC 77; Mohd. Naseem Ansari vs. State of U.P.  2003(3) UPLBEC 2503. The Apex Court in the case of  State of U.P. vs. Ajai Kumar 1997 (76) FLR 85 has also held that even the direction to regularize the service of daily wage workers on the post, as and when the vacancy arises, cannot be granted.

Thus, in view of the aforesaid settled principles, no such direction can be granted for regularization of the petitioners on the posts of drivers, which have now been sanctioned and advertised on 28.10.2004. This answers the first issue involved in these petitions.

We next come to the second issue that whether any direction should be issued to the Corporation to give preference in appointment and grant some relaxation in the prescribed minimum qualification on the basis that the petitioners have been working with the Corporation as contract drivers.

The contention of the respondents is that if the petitioners had now turned overage, it is only the Corporation which could relax the age requirement and it is not for this Court to issue such directions, and that the petitioners have to stand in the queue for getting their regular selection in accordance with the recruitment rules.

The respondents have relied on the decision in the case of Sardara Singh vs. State of Punjab AIR 1991 SC 2248, where the Apex Court observed that:

"It is next contended that the appellants have now become over-aged and that they are 22 in all. Therefore, directions may be given to the Government to relax their age qualification and give appointments to them. We find no justification to give such a direction. Admittedly, the appellants have taken the chance for selection and they were not selected on the basis of comparative merits. Therefore, merely because appellants are carrying on the litigation, there cannot be any justification to give direction to the government to consider their cases by relaxing the age qualification for appointment as Patwari."

There is no quarrel with the proposition that the selection process cannot be successfully challenged by a candidate who has participated in such process without protest, and subsequently, when found unsuccessful, turns around and challenges the said selection process. The question in the present writ petition is not that the petitioners have been declared unsuccessful in the selection process but that they be considered in the said process, after being given some relaxation in the minimum qualifications. Hence the ratio of the aforesaid decision would not be applicable.

In the case of State of M.P. vs. Dharam Bir (1998) 6 SCC 165, while considering the case of promotion on the post of Principal of the Industrial Training Institute, it was held that "the courts as also the tribunal have no power to override the mandatory provisions of the Rules on sympathetic consideration that a person though not possessing the essential educational qualifications, should be allowed to continue on the post merely on the basis of his experience. Such an order would amount to altering or amending the statutory provisions made by the government under Article 309 of the Constitution.

"Experience" gained by the respondent on account of his working on the post in question for over a decade cannot be equated with educational qualifications required to be possessed by a candidate as a condition of eligibility for promotion to higher posts. If the Government, in exercise of its executive power, has created certain posts, it is for it to prescribe the mode of appointment or the qualifications, which have to be possessed by the candidates before they are appointed on those posts.  The qualifications would naturally vary with the nature of posts or the service created by the Government."

However, in the present case, it cannot be disputed that the power to grant relaxation in the minimum qualification (especially with regard to age) vests with the Corporation. As per the third proviso to Regulation 14 of the Regulations of 1981, the said power can be exercised only if it is considered necessary for "fair dealing" or "in the interest of the Corporation". Such power can be exercised in respect of "a candidate or class of candidates" and in respect of "any post or category of posts". Regulation 6 further gives the power to dispense with or relax the requirements of any regulation, with the previous consent of the State Government and subject to such conditions, as it may consider necessary for dealing with the case in a just and equitable manner or in the interest of the Corporation.

Thus, when the Corporation is armed with such power to grant relaxation of age or even relax the requirement of any regulation, the point for consideration would be that under what circumstances the power to grant such relaxation ought to be exercised, and should the same have been exercised in favour of the petitioners or not? The Corporation has earlier also exercised the power to relax the age limit for a class of posts i.e. drivers. Regulation 14 provides for the age for recruitment to any category of post  to be 18 to 28 years. By Circular dated 12.2.1993, the Corporation relaxed the same for drivers to 25½ to 32 years (later to 35 years). The question then would be that why the same power should not be exercised for granting such relaxation for a class of candidates i.e. the contract drivers. The category of petitioners whose cases are being considered by this Court are only those who were engaged as contract drivers within the prescribed age limit and are either still continuing to be within the said age limit or while working with the Corporation, have become overage.

Before dealing with the said question, I may first consider the meaning of "working in the corporation" in the light of the various provisions of the Regulations of 1981. Regulation 2(ii) provides that the Regulations of 1981 shall apply to all "employees" except those "working on contract". It is true that as regards the terms and conditions of the working of contract drivers, it is the contract, which has to be looked into. However, the petitioners have contended that the same could not mean that because of Regulation 2(ii), they would be denied the benefits of the second proviso to Regulation 14. The contention is that since the second proviso to Regulation 14 provides that in the case of candidates already working in the Corporation, the upper age limit shall be greater by 5 years, the petitioners should also be granted that benefit as they have actually been working in the Corporation. In this regard, reliance has also been placed on Regulation 11(1)(c) that provides for recruitment on contract as one of the modes of recruitment in the Corporation. It has thus been urged that the drivers, having been engaged through a valid mode of recruitment, were legitimately working on contract and would thus be entitled to such benefits, which are to be given to those regularly working in the Corporation.

Further, the case of the petitioners for grant of relaxation would also be covered by the third proviso to Regulation 14. The same clearly provides that the Corporation may relax the upper age limit in certain cases. "May" can certainly not be read as "shall" in the present context. However, the said third proviso gives discretion to grant relaxation in respect of a candidate or class of candidates and in respect of any post or category of posts. Such discretion has to be exercised fairly and judiciously. Sometimes, not exercising the discretion vested in the authority concerned may also amount to arbitrariness, causing injustice to a party. Such discretion has, however, to be exercised in the interest of the Corporation or for fair dealing. It is not the case of the respondents that before issuing the advertisement for recruiting 1400 drivers, the case of the petitioners had at all been considered for grant of relaxation under the third proviso to Regulation 14. The petitioners do come within a class of candidates for whom the question of grant of relaxation in the prescribed qualifications for appointment on the post of drivers ought to have been considered by the Corporation. Having already engaged them for several years and they having worked without any complaint, it cannot be said that it would now not be "in the interest of the Corporation" to continue them in engagement, or to appoint them on posts now sanctioned, after they are permitted to face regular selection on being granted the necessary and permissible relaxation in age and other conditions, which may be considered appropriate in their cases. It would also amount to giving a "fair dealing" to such contracts drivers if their cases, for exercise of discretion provided under the third proviso to Regulation 14, had been duly considered by the Corporation. During the course of arguments, the learned counsel appearing for the Corporation or the State were unable to justify or give any good or valid reason for not granting such relaxation in age for such class of contract drivers. True it may be that the Courts do not normally, directly issue directions granting such relaxation, but the same would not tie the hands of this Court from issuing directions to the Corporation to exercise the discretion for granting relaxation in age, which power has been vested in the Corporation by the Regulations of 1981 and has to be exercised in a fair and judicious manner.

In my view, there is no reason for the Corporation not to have exercised the power possessed by it in the cases of the petitioners falling in the first two categories. Even if in this situation the Corporation will not exercise its discretion then it cannot be comprehended that in which other situation would the discretion be exercised by the Corporation to give a "fair deal" to such class of candidates. Not providing such relaxation would also amount to causing undue hardship to a particular class of candidates (contract drivers). It cannot be denied that the Corporation cannot function and fulfill its obligations without the drivers. It is the own case of the respondents that because of the posts not having been sanctioned by the State Government, in order to fulfill its obligation of providing adequate bus service to the public, the Corporation engaged drivers on contract basis. Thus, before issuing the advertisement prescribing the minimum qualifications for appointment on the post of drivers, the respondents ought to have taken a more practical and positive approach, and after sympathetically considering the cases of the petitioners, (without whose help the Corporation could not have fulfilled its statutory obligation at the time when there were no sanctioned posts) and after exercising the discretion vested under proviso to Regulation 14, should have passed appropriate orders and fixed the requisite qualifications for such class of candidates for the post of drivers.

The Supreme Court in the case of Arun Kumar Rout v. State of Bihar AIR 1998 SC 1477 has held that "this Court, however, has looked with sympathy when question of regularization came for consideration in cases of temporary or ad hoc appointments, even made improperly, if the incumbents had been allowed to continue for a long time because of the human problem involved in such continued service." In the case of H. C. Puttaswamy vs. The Hon'ble Chief Justice of Karnataka High Court AIR 1991 SC 295, when appointments had been made by the Karnataka High Court on its administrative side in gross violation of its own service rules, the Supreme Court made the following observations:-

"Having reached the conclusion about the invalidity of the impugned appointments made by the Chief Justice, we cannot, however, refuse to recognise the consequence that involves on uprooting the appellants. Mr. Gopala Subramanayam, counsel for the appellants while highlighting the human problems involved in the case pleaded for sympathetic approach and made an impassioned appeal for allowing the appellants to continue in their respective posts. He has also referred to us several decisions of this Court where equitable directions were issued in the interests of justice even though the selection and appointments of candidates were held to be illegal and unsupportable.

There is good sense in the plea put forward for the appellants. The human problems stands at the outset in these cases and it is that problem that motivated us in allowing the review petitions. It may be recalled that the appellants are in service for the past 10 years. ................ ................ They are now overaged for entry into any other service. It seems that most of them cannot get the benefit of age relaxation under Rule 6 of the Karnataka Civil Services (General Recruitment) Rules, 1977. One could only imagine their untold miseries and of their family if they are left at the mid-stream."

Thus, while directing that the appellant should be treated as regularly appointed with all the benefits of past services, it was held that "the precedents apart, the circumstances of this case justify an humanitarian approach and indeed, the appellants seem to deserve justice ruled by mercy".

In another case of Miss Shainda Hasan v. State of Uttar Pradesh AIR 1990 SC 1381 where, after observing that even in the absence of any statutory rule providing for power of relaxation, the Selection Committee had relaxed the qualification of teaching experience in favour of  the selected candidate for appointment on the post of Principal, the Supreme Court was of the view that though the selection would be invalid on ground of wrongful relaxation of qualification as regards experience, but asking the selected candidate to leave the job after sixteen years would be doing injustice to her.

In the case of A.I. Railway Parcel and Goods Porters Union v. Union of India (2004) 2 UPLBEC 1187, the case before the Apex Court was of porters employed through contractors in Northern Railway, though performing the duties since long and yet not regularized. After considering that the parcel handling work being performed by them was of a perennial nature, certain directions were issued on the basis of which the matter of their absorption was to be considered.

A Division Bench of this Court in the case of State of U.P. v. Putti Lal (1998) 1 UPLBEC 313 while considering a bunch of cases relating to the regularization of daily wagers/muster roll employees of the Forest Department who had been working for several years, had also directed framing of a scheme for regularization/absorption of such employees and other similarly placed employees within the time granted by the Court.

In Hindustan Machine Tools v. M. Rangareddy (2001) 1 LBESR 227 where directions had been issued by the High Court to the appellant company to frame a scheme for regularization of services of the workmen having worked for several years, in appeal, the Supreme Court refused to interfere with such directions.

In the recent case of Pankaj Gupta Vs. State of J.K. 2005 (1) E.S.C. 13 (SC), the Supreme Court was considering the case of appointments made in the year 1997 only on the recommendations made by various M.L.As. and M.L.Cs. and not in accordance with the service rules and that too without even inviting any applications. Taking note of the fact that such Class IV appointees had been working for last several years and many of them had already crossed the maximum age fixed for entry to government service, the appeal was disposed of with the following directions:

"(1) All the vacant posts shall be notified for appointment and applications called for in accordance with the Rules within six months from the date of the receipt of this Judgment.

(2) All the appellants herein may be permitted to submit application for appointment against such notification.

(3) As regards the upper age limit, these appellants shall be given relaxation but there shall not be any relaxation in the matter of the basic qualifications for appointment to Class IV posts.

(4) The appellants may be allowed to continue in service till such regular recruitments are made and these posts are filled up by a regular process of appointment"

The law, as laid down by the Supreme Court, has also to be applied in light of the facts of each individual case. The courts had initially been quite liberal in directing regularization of daily wage or muster roll employees. Later, with the development of law on the subject, it has now been settled that regularization of daily wage or contract workers can be directed only on sanctioned post and that too under some rule or scheme. As may be noticed, in some cases directions have also been issued for framing such rules for considering the regularization of such workers and directions have also been issued for granting some relaxation to those already working.

The settled principle is that engagement of daily wager is through back door, without inviting applications and without undergoing any selection process, and thus they can also be shown the back door for their exit, without following the due process. However, in the present case, the petitioners cannot strictly be placed in the category of daily wage workers or those who have entered in the engagement of the Corporation (though on contract) through back door. Their engagements have admittedly been after inviting applications (may not be after such publicity as may be required under law) and also after having undergone the selection process (may not be strictly in terms of the Service Regulations). The letters of engagement issued in favour of the petitioners on contact basis clearly go to show that they had faced the Regional Selection Committee before being selected and engaged as drivers in the Corporation. The respondents claim that such selection committees had not been constituted under the Service Regulation but were merely temporary selection committees which had examined and tested the capabilities of the contract drivers before engaging them on contract. However, the fact remains, that the petitioners had been selected and only then engaged by the Corporation and have already worked for several years, ranging from 2 to 8 years. They have worked to the satisfaction of the Corporation and have thus proved their worth, because it is only then that the contract drivers had been permitted to continue to work. In cases where the performance of contract drivers was not found up to the mark, their contracts have already been cancelled. Here I am considering the cases of only those, whose contracts were alive on the date of sanction of the posts of drivers by the State Government.

Regular appointments could earlier not be given to the petitioners (contract drivers) because of lack of posts (which have now been sanctioned by the State Government) although need for work existed earlier also, resulting in regular recruitment on contract basis. It is not denied that as soon as the posts were sanctioned on 25.10.2004, the Corporation issued the impugned advertisement within a few days, on 28.10.2004, setting the selection process rolling immediately. This was done without considering the cases of even those who had worked satisfactorily with the Corporation for years together and helped the Corporation to carry on its statutory obligation of providing bus service at the time when regular posts of driver were not available. The respondents have urged that there is no obligation on the Corporation to regularize them merely because the contract drivers had worked with the Corporation when such need was there, as in return for the work done by them, they were paid their due wages.

Be that as it may, this Court cannot lose sight of the fact that regular employees of the Corporation or Government are also paid their salary but still the employer gives sufficient protection to them in service by framing rules and regulations relating to their service conditions. If it is merely a relationship of taking work and paying salary or wages, then it becomes a clear case of hire and fire. Showing the exit door, without following the process of law may be justified in the case of a person engaged when there was actually no post and work available for them, and such person had been employed or engaged not through any process of selection but through back door without following any process at all. Here is a case where entry of the petitioners cannot be said to be through back door. The Corporation needed working hands but had no sanctioned post, and thus regular selection and recruitment could not be made, and for that reason the petitioners were engaged on contract and that too after undergoing some selection process. As such, in fact it was the Corporation itself, which had opened the back door for engaging regular working hands on contract basis. It took work from them and continued to take work till the front door was opened for regular selection i.e. when the posts were sanctioned by the State Government on 25.10.2004. Not only this, they also slammed the door on the face of such contract drivers who stood by them in the hour of need and made the working of the Corporation (of providing regular bus service) possible when the Corporation could not (due to no fault of the petitioners) engage regular working hands. At least some kind of protection (may not be equal to that given to regular employees) ought to be given to the contract drivers who have satisfactorily worked for several years. By this I do not mean that merely because of having served on contract basis, the petitioners would become entitled for regularization in service. Now when there is opportunity for making appointments on regular sanctioned post, the least that could be done by the Corporation was to exercise its discretion provided under the Regulations of 1981 and after giving them some preferential treatment and granting relaxation in certain prescribed qualifications, (for which the power vests in the Corporation) give them a fair chance to apply for the post now available and compete with the general candidates..

The answer to the second issue is thus clear, that on the basis of having satisfactorily worked with the Corporation for a considerable period, such contract drivers would be entitled to grant of some reasonable relaxation in the prescribed minimum qualifications. The same is to be granted by the Corporation, which is vested with the power to do so. Thus, this Court is not contemplating issuance of any direction to the Corporation for regularizing the petitioners in service nor is this Court inclined to straightaway issue directions relaxing the upper age limit or grant any relaxation in the physical fitness. Such directions can be issued only by the Corporation under proviso to Regulation 14 and also under Regulation 17. Under Regulation 6, the Corporation also has the power to even relax the provision of any regulation with the previous sanction of the government.

As already noted above, there are four essential qualifications provided in the advertisement, namely, possession of license to drive a vehicle for five years; education qualification of class VIII pass; minimum height of 5' 5"; and age between 25 ½ to 35 years as on 1.7.2004. In my view there can be no relaxation granted in the first two qualifications nor have the petitioners claimed any such relaxation. Possession of driving license is an essential qualification and no relaxation whatsoever, can be granted in this regard. The same would be the case with educational qualification also.

However, the minimum height criteria can be relaxed to some extent, for which power vests with the Corporation. By Circular dated 12.2.1993, issued by the Corporation, which has been relied upon by the respondents, the minimum height prescribed for appointment of drivers was fixed at 5' 5" for candidates of plains and 5' 2" for candidates of hill areas. Thus it cannot be said that persons measuring to the height of 5' 2" would not be capable of driving the buses efficiently, as the earlier qualification for driving in hill areas (where driving is more difficult), the drivers were required to be of a minimum height of 5' 2". After taking the aforesaid into consideration the Corporation should thus consider giving relaxation in height, keeping in view that the contract drivers of less than 5' 5" but above 5' 2" in height have worked to the satisfaction of the Corporation for past several years.

Similarly in the case of relaxation of age, the Corporation should consider the same within the framework of Regulations of 1981 and grant such relaxation to those who were initially engaged on contract basis within the prescribed age of 25 ½ to 35 years and have, while working with the Corporation on contract, now become overage. This may be only upto 5 years, keeping in view the second proviso to Regulation 14 where even for those working in the Corporation, 5 years relaxation can be given.

The question of giving preference to the contract drivers while giving appointment on sanctioned posts, should also be considered by the Corporation. In view of the service rendered by them for several years, which has been to the satisfaction of the Corporation, in my view, if other things are equal, preference in appointment should be given to those already working.

It may be relevant to mention here that, though not initially, but after exchange of affidavits, on 20.1.2005, when these cases were under hearing, and a statement had been made by the learned counsel for the respondent that only the first phase of selection had been completed, and those selected in the first phase had merely been sent for training for final selection in the second phase, this court had passed an interim order to the effect that the Corporation shall not declare the final select list nor would they issue any appointment letter in favour of any of the applicants until further orders. Thus, it is clear that no appointments have yet been made in pursuance of the impugned advertisement.

Having regard to the totality of the circumstances, this Court is of the view that till the Corporation considers the cases of the contract drivers falling in the first two categories for grant of the necessary and permissible relaxation in the prescribed minimum qualifications, no final select list should be prepared nor appointments be made in pursuance of the advertisement dated 28.10.2004. For examining the cases of the contract drivers for being granted relaxation, a joint Committee of representatives of the Corporation and the State Government may be appointed. For this purpose, the Managing Director of the Corporation may nominate two of its senior officers as members of such Committee and the State Government may nominate two senior responsible officers of the Government as the other two members. The direction for such joint committee is being issued so that the entire exercise is carried out within the time frame given by this court and time is not wasted in unnecessary and long drawn correspondence between the State Government and the Corporation. Such Committee may grant the necessary and permissible relaxation in age and other qualifications, in the light of the observations made in this judgement, within the framework of the Regulations of 1981.

The selection process is already on and hence there would be urgency for the entire process to be completed expeditiously. Accordingly, these writ petitions are disposed of with the following directions, which are to be read in the light of the observations made here-in-above:-

1. The Chief Secretary of the State Government and the Managing Director of the Corporation shall take immediate steps to constitute a joint Committee, which shall consider the grant of necessary and permissible relaxation in age and other qualifications to the contract drivers (falling in the first two categories) for appointment as regular drivers. They shall ensure that the report of the Committee is submitted within one month.

2. After such report is submitted, if it is so required, the State Government will grant its approval within two weeks, or give its reasons in writing for not granting such approval (as during hearing neither the Corporation nor the State Government could give any valid reason for not granting such relaxation).

3. The report of the Committee should then be implemented immediately.

4. Those contract drivers, who are found eligible for consideration under the terms of the report of the Committee, shall also be permitted to undergo the selection process for appointment as drivers, alongwith other candidates who have applied in pursuance of the advertisement dated 28.10.2004.

5. After such eligible contract drivers have been given opportunity to participate in the selection process and are considered alongwith the other candidates, the results of the selection be declared together. Only thereafter, the appointments on the posts of regular drivers be made.

6. If all other things are equal, those contract drivers already working should be given preference in appointment as regular drivers.

7. Such contract drivers, who were already working on the date when the posts of regular drivers were sanctioned, shall be permitted to continue to work on the same terms on which they had been engaged, till the posts are filled up by the regular selection process.

With the aforesaid observations and directions, this bunch of writ petitions stand disposed of. No order as to costs.

Let a certified copy of this judgement be given to the learned Chief Standing Counsel within 24 hours, for immediate communication to the Chief Secretary of the State Government for necessary compliance. Certified copies may also be given to all parties within the same period, but on payment of usual charges.

Dt/- February 22, 2005

dps


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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