IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
MONDAY, THE 9TH DAY OF MAY 2022 / 19TH VAISAKHA, 1944
WP(C) NO. 7432 OF 2021
PETITIONERS:
1 SHYAM P
AGED 31 YEARS
SANKARALYM (H), KIZHISSERI, KUZHIMANNA P.O.MALAPPURAM,
PIN-673 641.
2 VIPIN SANKAR P,
POTHOTTIYIL HOUSE, MANISSERY P.O.OTTAPALAM, PALAKKAD,
PIN-679 101.
3 AKHIL K.P,
K.P. NIVAS, NEDUNGOLAM P.O.PARAVOOR, KOLLAM, PIN-691
334.
4 ANAGHA VINOD,
MANNUPPATTU HOUSE, PARIYARAM P.O.ELANTHUR,
PATHANAMTHITTA, PIN-689 645.
5 SRUTHY V,
AZHIKKAKATHU THOPPIL, PURAKKAD P.O.AMBALAPPUZHA,
ALAPPUZHA PIN-688 561.
6 SONIYA N.K,
NALAMKANDATHIL (H), KARUVISSERY P.O.PARAMBATH,
KOZHIKODE, PIN-673 010
7 SITHARA R,
RAJAVIHAR, VADAKKUMKARA EAST, UMAYANALLOOR P.O.KOLLAM,
PIN-691 589.
8 ROHITH V.V.
VADAKKEVEETTIL, KAKKALLUR P.O.BALUSSERY, CALICUT, PIN-
673 612.
9 NAYANA D,
KATTUKETIL THAZHATHIL EZHUKONE P.O.KOLANNOOR, KOLLAM,
PIN-691 505.
BY ADVS.
P.SATHEESH KUMAR (S 3441)
W.P(C)NO.7432/2021 2
ADARSH S.S
RESPONDENTS:
1 TRAVANCORE DEVASWOM BOARD
REP BY ITS SECRETARY, O/O THE TRAVANCORE DEVASWOM
BOARD, NANTHANCODE, KOWDIAR P.O.THIRUVANANTHAPURAM-
695 003.
2 DEVASWOM COMMISSIONER,
O/O THE TRAVANCORE DEVASWOM BOARD, NANTHENCODE,
KOWDIAR P.O.THIRUVANANTHAPURAM-695 003.
3 KERALA DEVASWOM RECRUITMENT BOARD,
REP BY ITS SECRETARY, O/O THE KERALA DEVASWOM
RECRUITMENT BOARD, THIRUTHIAMCORE DEVASWOM BOARD
BUILDING, THIRUVANANTHAPURAM-695 001.
4 CHIEF ENGINEER (GENERAL),
O/O THE TRAVANCORE DEVASWOM BOARD, NANTHENCODE,
KOWDIAR P.O.THIRUVANANTHAPURAM-695 003.
5 ADDL.R5. SANIL KUMAR K.G.
S/O.A.N.GOPALAKIRISHNA PILLAI, KANNANGATTU HOUSE,
CHERUKOLE P.O., KOZHENCHERY - 689650.
6 ADDL.R6. V.RAJESH
S/O.VELAPPAN NAIR, PARVATHY MANDIRAM, OORUTTUKALA,
NEYYATTINKARA P.O., THIRUVANANTHAPURAM-695121.
7 ADDL.R7. G.SYAMKUMAR
S/O.GOVINDAN NAMBOOTHIRI, KUNNATHUMADAM,
VEERANAKAVU P.O., KATTAKKADA - 695572.
8 ADDL.R8. VIBIN LAL O.V.
S/O.VISWAMBARAN O.K,, ORAPPANIYIL HOUSE, KEEZHOOR
P.O., THALAYOLAPARAMBU, KOTTAYAM DISTRICT - 686605.
9 ADDL.R9. AJAYAKUMAR V.
S/O.VIJAYAKUMAR, PATTUVILAKAM TC 79/1492,
KANIKKAKAM P.O., THIRUVANANTHAPURAM - 695021.
ADDL.R5 TO 9 ARE IMPLEADED AS PER ORDER DATED
06.09.2021 IN IA NO.1/2021 IN WPC NO. 7432/2021.
BY ADVS.
G.BIJU
V.V.NANDAGOPAL NAMBIAR ( sc)
W.P(C)NO.7432/2021 3
S.SUBHASH CHAND
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 25.01.2022, THE COURT ON 9/5/2022 DELIVERED THE FOLLOWING:
W.P(C)NO.7432/2021 4
JUDGMENT
The petitioners are some of the candidates who stand ranked in the rank list to the post of Overseer Grade III in the Travancore Devaswom Board notified by the third respondent - Kerala Devaswom Recruitment Board. The first respondent is the Board and the second respondent is the Devaswom Commissioner. As per the rank list, which is produced as Ext.P1 dated 23/6/2018, petitioners stand ranked between No.40 and 58 in the main list. Rank list will expire on 22.6.2021. From among Ext.P1 rank list, 40 candidates were advised for appointment by Ext.P2 appointment chart dated 28/10/2019. The last candidate advised was on 28/10/2019. All of them joined. Thereafter no vacancies were reported and no advise was effected from Ext.P1 rank list. Third petitioner sought information under the RTI Act and obtained Exts.P3 and P4 replies which indicate that there were 32 posts of Grade II Overseers and 42 posts of grade III in the Board . Grade II is the promotion post of grade III overseers . In the meanwhile, a draft seniority list of Overseer Grade II and grade III of the Devaswom Board as on 31/1/2020 was published as Ex.P5. The cadre strength as mentioned above overseer grade II was 32 and Ext.P5 indicated that only one person was working as overseer Grade II. 31 posts are seen vacant. In the seniority list of Overseer grade III, 42 employees were included, out of which 4 persons were relieved to take up other posts. Further, serial Nos.40 to 42(three posts) were also vacant. Thus altogether seven vacancies were stated to be available.
W.P(C)NO.7432/2021 5
2. As per the special Rules, the method of appointment of Overseer Grade II was by promotion from the list prepared based on seniority from the qualified candidates in the category of Overseer Grade III. The method of appointment of post on Grade 1 is also by promotion from the list prepared, based on the seniority from the list of qualified Overseer Grade II. Next promotion post is that of Assistant Engineer, which were to be filled up in the ratio of 60 : 40, from among the candidates of direct recruitment and by transfer from among the employees of the Board, in the ratio of 3:1 among the diploma holders and the certificate holders. While so, by Ext.P6 order of the Chief Engineer, (General), 30 senior most Grade III overseers were qualified for promotion to the post of Grade II. 30 resultant vacancies of Overseer Grade III are available for reporting to the third respondent. It is stated that the same is not reported till date. According to the petitioners, 38 vacancies are available as evident from Ext.P4 . Further 30 resultant vacancies of overseer grade III available for reporting to the 3rd respondent, by virtue of Ext.P6 ertr also available. The claim of the petitioners was that all together 38 vacancies are existent to the post of Overseer Grade III which was pending reporting, advise and appointment.
3. According to the petitioners, three candidates included in Ext.P1 rank list relinquished their claim and the relinquishment letters of two candidates were produced as Exts.P7 and P8. It was also stated that seniority list of last grade low paid employees for promotion to the post of IIIrd Grade Overseer in the Travancore Devaswom Board was published on W.P(C)NO.7432/2021 6 16/9/2020, evidenced by Ext.P9. 11 employees were included in the list. It was understood that most of them were promoted to the post of 3 rd Grade overseer in the meanwhile. According to the petitioners, it was not clear whether they were qualified or not. According to the petitioners, as per the Special Rules, 40% of the vacancies of Assistant Engineer are set apart by transfer appointment from among the employees of the Board, having diploma/ITI certificate in Civil Engineering . In that event, resultant vacancies will be ultimately available to the post of overseer grade III consequent to the promotion. Thus the petitioners claim that atleast 50 vacancies are available and pending for reporting to the third respondent for advise and for appointment from Ext.P1 rank list. Though Ext.P10 representation was given, seeking their appointment, it was not acted upon nor any instructions received. Hence, the writ petition was filed. The relief sought in the writ petition was for a direction to the respondents to appoint from Ext.P1 rank list, to declare that the petitioners were eligible for appointment to the post of overseer grade III from Ext.P1 rank list and directing the first respondent to issue promotion orders to the eligible candidates for promotion to the post of Overseer Grade II, Grade I and the Assistant Engineer and to report the resultant vacancies of Overseer Grade III to the 3rd respondent for advise and appointment from Ext.P1 and lastly for a direction to the first respondent to report the existing and arising vacancies for the post of Overseer grade III to the 3rd respondent, and to issue appointment orders to the petitioners within a stipulated time. W.P(C)NO.7432/2021 7
4. Pending the proceedings, some of the employees of the Devaswom who were low paid employees in the cadre of temple employees of the Devaswom filed I.A.No.1/2021 to get themselves impleaded. The claim set up by them was that they were the persons entitled for the 35% vacancies that would occur in the cadre of third Grade Overseer, by virtue of the provisions contained in " Travancore Devaswom Board Reservation of Vacancies for Temple Employees to the Post of Devaswom Guard and Grade IIIrd Overseer Rules 2014". According to the petitioners, since they were not promoted and the 35% quota could not be filled up, they approached this court by filing W.P.(C) No. 17112/2018 which was disposed of with a direction to to fill up 35% of vacancies that arise each year. Petitioners had also filed W.P.(C) No.7432/2021 which was pending. That writ petition was also heard along with this writ petition and is being disposed of by seperate judgment. IA was allowed and the applicants therein was impleaded as additional respondents 5 to 9 .5. The respondent Board had filed a detailed counter affidavit and an additional counter affidavit.
6. Heard both sides and examined the records.
7. The essential facts , as pleaded by the petitioners, in the writ petition and narrated above in detail are not disputed in the counter affidavits. The main contention set up by the respondent Board was that due to various reasons, from the very beginning of the last financial year there occurred considerable decrease in the income of the Board, which were totally out of W.P(C)NO.7432/2021 8 control of the Board including Nippa fever, unexpected flood, Covid 19 Pandemic and the unfortunate incidents consequent to the verdict of Supreme Court of India on Shabarimala etc. All of the above contributed to such a bad state and the temples had to be closed for months due to the outbreak of covid pandemic. Even though temples are open now, the number of devotees are limited. These circumstances seriously affected the functioning of the Devaswom Board. Hence, it necessitated a lot of regulations and adjustments in the activities of the Board. Devaswom accordingly, decided to implement an austerity policy. It was decided to reduce/re-deploy the existing posts in the Devaswom Board, by identifying unnecessary posts. Accordingly, a committee was constituted for formulating and reorganising the process in the Devaswom Department and the report was submitted. In the additional counter affidavit, it was stated that a decision was taken evidenced by Ext. R1(a), on 16/11/2021 by the Board, abolishing 10 posts of IIItd Grade Overseers. It was further contended that accordingly, petitioners who are only rank holders in the list, cannot claim that they shall be appointed, by any means. It was also contended that they have no right to compel the Board to make appointment by virtue of the Supreme Court decision in Shankaran Das v. Union of India ( 1991 (3) SCC 47) and Linimol C.V. And Another v. Malappuram Co-operative Spinning Mills and Others(2017 (3) KHC 367)
8. In reply to this, the stand taken by the petitioners was that, the decision taken on 16/11/2021, will not stand in the way of advising and W.P(C)NO.7432/2021 9 appointment of the petitioners in the vacancies available and reporting before the expiry of the rank list. It was further alleged that the staff reduction was proposed only in the cadre of Overseer Grade III to deny the claims of the petitioners. To substantiate the contentions, the petitioners relied on the decisions in Deepa M.M v High Court of Kerala & others ( 2018 (2) KHC 319),. Velayudhan v Secretary to Government (1985 KHC
177) and Mohanan v. Director of Homeopathy ( 2006 KHC 855).
9. Evidently, the only issue now remains is whether in the light of Ext.R1(a), the Board can be compelled to appoint persons who are ranked in the list and against the original number of notified vacancies.. It is settled that a person ranked in the list cannot compel the employer to appoint persons against their policy. Though the petitioners contended that this was specifically intended for deny the right of the petitioners, I cannot subscribe to it , since the abolition of the post was brought at the lowest level. This court cannot also go into the legality and correctness of Ext.R1(a) in a proceeding of this nature. However, the Board shall be directed to fill up the available post in accordance with law at the earliest. The reliefs to be granted to the petitioners is to be moulded accordingly.
10. I am inclined to dispose of the writ petition by directing the second and third respondents to appoint the petitioners. Respondents Nos. 1 and 2, after ascertaining the number of vacancies as are now available consequent to the promotion of Grade III employees to Grade II, existing number of vacancies as are disclosed from Ext.P2 and also having regard to the W.P(C)NO.7432/2021 10 relinquishment letters, if submitted by the candidates to the PSC, in accordance with law, shall take necessary steps to instruct the third respondent to issue advise memo to the persons who are competent to be selected to the vacant post as are ordered to be provisionally posted by order dated 31/3/2021, without prejudice to the right of the qualified persons, if any, to be promoted under the Travancore Devaswom Board Reservation of Vacancies of Temple Employees to the post of Devaswom Guard and Third Grade Overseer Rules, 2014. This shall be completed within a period of two months from the date of receipt of a copy of this judgement.
The writ petition is allowed as above.
Sd/-
SUNIL THOMAS Judge dpk W.P(C)NO.7432/2021 11 APPENDIX OF WP(C) 7432/2021 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGES OF RANKED LIST NO 05/2018 DATED 23.6.2016 BY THE 3RD RESPONDENT EXHIBIT P2 TRUE COPY OF THE APPOINTMENT CHART NO 24/RECT/KDRB/2016 DATED 28.10.2019 BY THE 3RD RESPONDENT EXHIBIT P3 TRUE COPY OF THE QUESTION UNDER RTI TO THE PUBLIC INFORMATION OFFICER, TRAVANCORRE DEVASWOM BOARD BY THE 4TH PETITIONER DATED 8.9.2020 EXHIBIT P4 TRUE COPY OF THE RTI REPLY NO 1922 BY THE PUBLIC INFORMATION OFFICER TO THE 4TH PETITIONER DATED 16.11.2020 EXHIBIT P5 TRUE COPY OF THE CIRCULAR NO 486 DATED 10.2.2020 BY THE CHIEF ENGINEER (GENERAL) EXHIBIT P6 TRUE COPY OF ORDER NO CE(G)/ESTT-
11/B1/2020-21/2 DATED 16.2.2021 EXHIBIT P7 TRUE COPY OF RELINQUISHMENT LETTER SUBMITTED BY ARATHI S MOHAN TO THE 3RD RESPONDENT EXHIBIT P8 TRUE COPY OF RELINQUISHMENT LETTER SUBMITTED BY KRISHNA KUMAR OH TO THE 3RD RESPONDENT EXHIBIT P9 TRUE COPY OF THE SENIORITY LIST OF LOW PAID EMPLOYEES FOR PROMOTION TO THE POST OF 3RD GRADE OVERSEER IN TRAVANCORE DEVASWOM BOARD EXHIBIT P10 TRUE COPY OF THE PETITION SUBMITTED BY THE 3RD PETITIONER TO THE Exhibit P11 TRUE COPY OF THE GE (G) ESTT/RTI/2021/07 DATED 15/09/2021 FROM THE PUBLIC INFORMATION OFFICER W.P(C)NO.7432/2021 12 Exhibit P12 TRUE COPY OF THE CE (G) ESTT/RTI/2021/23 DATED 18/12/2021 FROM THE PUBLIC INFORMATION OFFICER EXT.R1(A): COPY OF THE ORDER ROC NO.1545/19/EST.-II DATED 16/11/2021 ISSUED BY THE BOARD ABOLISHING 10 POSTS OF IIIRD GRADE OVERSEERS.