Shyam P vs Travancore Devaswom Board
2022 Latest Caselaw 5157 Ker

               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.

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

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.

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

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

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

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

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

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.