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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  NO.  1714 OF 2009

SUNIL SHAMRAO JADHAV & ORS.                  Appellant(s)

                               VERSUS

KOLHAPUR MUNICIPAL CORPORATION & ORS. Respondent(s)

WITH

CIVIL APPEAL NO. 1715 OF 2009

J U D G M E N T

KURIAN, J.

1. The  respondent  –  Corporation,  by  notice

dated  12.10.1992,  invited  applications  for

filling  up  the  posts  of  Assistant  Traffic

Inspectors.  As  per  Kolhapur  Municipal

Corporation Regulation No. 1 dated 16.04.1974,

the method of appointment is 75% by promotion

and 25% by nomination, meaning thereby direct

recruitment.  However, Regulation 6 made it

clear that “in the event of an appointment by

promotion, if no candidate is found suitable

for  such  promotion,  the  appointment  may  be

made  by  nomination,  Provided  that  before

taking  the  recourse  to  nomination  in  such

cases  the  reasons  for  not  making  the

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appointment by promotion shall be recorded in

writing  by  the  appointing  authority.”

Apparently,  in  exercise  of  its  power  under

Regulation  6  only,  the  applications  were

invited  for  appointment  of  16  posts  of

Assistant  Traffic  Inspectors  by  direct

recruitment.   

2. There were 35 posts in the cadre, out of

which, 16 posts were sought to be filled up.

The  educational  qualification,  as  per  the

Notification, reads as follows:-

“D. Educational Eligibility

1)  Age  Limit  28  years  for

Scheduled Caste 5 yrs Relaxed

2) Graduate  in any  Course from

Recognised University

3)  5  years  experience  in

Transport Undertaking.”

3. It  appears  that  none  of  the  applicants

possessed  the  required  experience  of  five

years,  which  is  notified  as  part  of

educational  qualification.   It  appears  that

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the Corporation, in exercise of its powers to

relax the qualification as per the Transport

Resolution No. 119 dated 14.05.1991, relaxed

the provision of experience and selected 15

candidates  and  appointed  them  as  Assistant

Traffic Inspectors.  That has been challenged

by the respondent - Trade Union on the ground

that  the  candidates  did  not  possess  the

required  experience  and  hence,  they  were

ineligible for the appointment.   

4. It  may  be  specifically  noted  that  the

Notification was not under challenge by the

union.  Only when the appointments were made,

the  union  took  up  the  challenge  that  the

Municipal Corporation could not have relaxed

the educational qualification.   

5. The High Court, as per the impugned order,

took the view that the Corporation could not

have  relaxed  the  educational  qualification.

However, taking note of the fact that, by that

time the Judgment was rendered, the appellants

had rendered more than 10 years of service,

the court granted liberty to the Corporation

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to conduct fresh recruitment, permitting the

appellants  also  to  participate  in  the

selection process, granting them relaxation in

the  upper  age  limit.   Aggrieved,  the

appellants  approached  this  Court  and  by  an

interim order dated 12.05.2006, the operation

of the impugned Judgment was stayed and thus,

the appellants have been in continuous service

for about 24 years as of now.   

6. The respondent – Corporation has filed an

affidavit on 23.08.2017 bringing to the notice

of  this  Court  certain  important  factual

aspects.  According to the Corporation, out of

the 25 sanctioned posts of Assistant Traffic

Inspectors as of now, only 15 posts could be

filled up and 10 posts are still lying vacant.

In the feeder category of Traffic Controller,

out of 33 sanctioned posts, only 06 could be

filled up and 27 posts are vacant.  The posts

are  kept  vacant  on  account  of  lack  of

qualified  candidates  for  promotion.   The

Corporation has also stated in the affidavit

their  dire  need  for  the  Assistant  Traffic

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Inspectors in position.  We may extract the

relevant  paragraphs  of  the  affidavit

hereunder:-

“3. In this regard the situation

as exists today in the transport

undertaking  of  the  Respondent

Municipal Corporation needs to be

brought  on  record  for  this

Hon’ble  Court  to  appreciate  the

controversy  from  all  relevant

perspectives.  Although  at  the

time  when  the  appointments  in

question  were  made  the  total

sanctioned strength for the post

of ATI was 35, as of today the

sanctioned  strength  is  only  25.

The  table  below  gives  the

information as to total sanction

strength in all the cadres under

the  transport  undertaking

together  with  the  total  posts

filled in and the number of posts

lying vacant.

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Sr.

No

DESIGNATION SANCTIONED

POSTS

POSTS  FILLED

IN

VACANT

POSTS

1. Driver 214 184 30

2. Conductor 292 222 70

3. Timekeeper 05 0 05

4. Driver

Instructor

04 0 04

5. Traffic

Controller

33 06 27

6. Assistant

Traffic

Inspector

25 15  10

7. Traffic

Inspector

2 0 2

4. Above said table shows that

out  of  25  sanctioned  posts  of

ATI, 10 are lying vacant. It is

further submitted that out of 15

posts of ATI filled in today only

one  is  held  by  a  promotee

candidate  namely  Shri  B.B.

Chandan.  Said  Shri  Chandan  was

promoted in 1995 and is due to

retire  on  23.04.2022.  It  is

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further submitted that the cadre

of  Traffic  Controller  is  the

feeder cadre for promotion to the

post  of  ATI.  The  minimum

educational  qualification

required  as  eligibility  for

promotion to the post of ATI is

having  passed  Matriculation  or

SSC with English as one of  the

subjects. Minimum experience of 5

years  as  Traffic  Controller  is

also the requirement. As of now,

out  of  6  traffic  controllers,

four(4)  persons  do  not

have  requisite  educational

qualification although they have

required experience. Two Traffic

Controllers  have  requisite

educational  qualification  and

have very recently attained the

minimum experience of Five years.

5. The  posts  in  the  cadre  of

Time Keeper and Driver Instructor

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are  lying  vacant.  As  a  result,

there  is  no  possibility  of  any

immediate  promotee  being

available for filling in the post

of ATI. The Appellants and other

persons Appointed as ATI. (whose

appointments  are  subject  matter

of  challenge  in  the  present

proceedings) have worked for over

23  years.  In  case  these

appointments  are  quashed  there

will  be  only  1  ATI  actually

working and 2 Traffic Controllers

eligible  for  promotion  as  ATI.

Out  of  25  posts,  thus,  only  3

posts of ATI  will be filled in.

The  role  of  ATI  is  extremely

crucial in smooth plying of buses

and  proper  supervision  and

control  of  the  drivers  and

conductors.   The  duties  of  ATI

include,  inter  alia,  inspecting

any bus of the undertaking on any

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route  at  any  time,  checking  if

all  passengers  are  issued

tickets,  collecting  fine/penalty

from passengers traveling without

ticket, inspecting personal cash,

official  cash,  license,  ticket

blocks,  lockers  of  Drivers  and

Conductors and reporting to the

administration  in  case  of  any

suspicious  material  found,

scheduling of crews and buses as

per public need, verifying if the

buses ply as per schedule, survey

of route for assessing demand of

the passengers, attending places

of attendance for complying with

all  legal  and  procedural

requirements,  inspecting  routes

of the buses to update about the

condition  of  roads,  bridges  to

assess if any of them have become

dangerous, taking decision about

the routes of buses during flood

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situation, preparing audit report

at the year end about the entire

stock of tickets and submitting

the same with corrective measures

to  the  administration,

coordinating with city police and

RTO  for  keeping  clandestine

traffic under control. There are

in all 129 buses of the Municipal

Transport,  daily  number  of

passengers in the range of 1 to

1.25  lakhs,  its  coverage  is  of

entire  municipal  area  together

with  67  villages  within  20  KM

from  municipal  limits.  It  is

submitted that it is this factual

aspect  which  is  relevant  and

which  needs  to  be  taken  into

account which deciding the above

mentioned Civil Appeal.”

7. Having  regard  to  the  factual  matrix  as

above, we are of the view that it is only in

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the interest of everybody and in the interest

of justice that the appellants (and others who

have been recruited along with them pursuant

to the Notification issued in the year 1992)

are  allowed  to  continue  in  their  posts  as

having been regularly recruited and appointed,

having regard to the special facts, as stated

in the affidavit.  Ordered accordingly.   

8. We  also  direct  the  Corporation  to  take

steps for promoting the eligible candidates as

soon as they are available for promotion.  The

impugned  Judgment  of  the  High  Court  shall

stand  modified  to  the  above  extent.   The

appeals are allowed as above.

.......................J.               [ KURIAN JOSEPH ]  

.......................J.               [ SANJAY KISHAN KAUL ]  

New Delhi; July 12, 2018.