Arun Mohan T. et al. v. Kerala Devaswom Recruitment Board and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN MONDAY, THE 11[TH] DAY OF JULY 2022 / 20TH ASHADHA, 1944** **WP(C) NO. 18395 OF 2022** ## **PETITIONERS:** 1 ARUN MOHAN T. AGED 32 YEARS THEKKE ARACKAL PUSHPAKAM, VENGOOR P. O., ERNAKULAM DISTRICT, PIN-683 546. 2 GEETHA BHATT A. DEVASWAM PARAMBIL, GEETHA NIVAS, CHERAI P. O., NORTH PARAVUR, ERNAKULAM, PIN-683 514. 3 DEEPTHI P. J. POOVANNAL MELETHIL, THAMARAKUDY P. O., KOTTARAKKARA, KOLLAM DISTRICT, PIN-691 560. 4 AMPADY M. CHERUPPETHUMALIYIL, PERUMPAYIKKAD P. O., KOTTAYAM, PIN686 016. BY ADVS. S.P.ARAVINDAKSHAN PILLAY N.SANTHA V.VARGHESE PETER JOSE CHRISTO S.A.ANAND K.N.REMYA L.ANNAPOORNA VISHNU V.K. ABHIRAMI K. UDAY ## **RESPONDENTS:** 1 KERALA DEVASWOM RECRUITMENT BOARD THIRUVITHAMKUR DEVASWOM BOARD BUILDING, AYURVEDA COLLEGE JUNCTION, THIRUVANANTHAPURAM-695 001, REPRESENTED BY ITS SECRETARY. 2 SECRETARY KERALA DEVASWOM RECRUITMENT BOARD, THIRUVITHAMKUR DEVASWOM BOARD BUILDING, AYURVEDA COLLEGE JUNCTION, THIRUVANANTHAPURAM-695 001. 3 MALABAR DEVASWOM BOARD OFFICE OF THE MALABAR DEVASWOM BOARD COMMISSIONER, KOZHIKODE, PIN-673 006, REPRESENTED BY IT SECRETARY. 4 SECRETARY MALABAR DEVASWOM BOARD, OFFICE OF THE MALABAR DEVASWOM BOARD COMMISSIONER, KOZHIKODE, PIN-673 006. BY SC SMT LAKSHMI NARAYAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.18395 OF 2022 2 ## **JUDGMENT** ## **Dated this the 11[th] day of July, 2022** This writ petition is filed by four persons included in Exhibit P3 rank list, seeking directions to the respondents to advice them for appointment to the post of clerk under the 3[rd] respondent Devaswom Board, including the vacancies in which six contract employees are specifically engaged. 2. Learned counsel for the petitioners would contend that the petitioners are eligible for advice and appointment against all existing vacancies including the vacancies which are filled up by contractual appointments de hors the due process of selection. The petitioners have also raised claims for appointment against the vacancies kept apart for by transfer appointment, in view of the fact that there is no valid ranked list in force for such appointment. WP(C).No.18395 OF 2022 3 ## 3. A statement has been placed on record by the ## 3[rd] respondent stating as follows: _“It is submitted that the Writ Petitioners seeks to declare that they are entitled to be advised against the 6 vacancies in which 6 contract employees are working, 2 NJD vacancies, one vacancy occurred due to resignation, and 5 vacancies notified for transfer appointment; and to get those vacancies reported and duly advised. The 3[rd] respondent Board was constituted by the Act No.31 of 2008 by replacing the Hindu Religious and Charitable Endowments (Admn) Department. As provided in Sec. 19G of the said Act read with G.O.(Rt) No.222/2021/RD dated 8.6.2010, the sanctioned strength of 128 posts of the Hindu Religions and Charitable Endowments (Admn) Service, continued in Malabar Devaswom Board, as the vanishing category with all the rights and privileges and continuing as such, which was the staff strength of Malabar Devaswom Board. Among the 128 posts, 15 posts of clerks were sanctioned to Malabar Devaswom Board as per GO.(MS)No.322/2019/RD dated 25.10.2019 and thereafter 4 posts were again sanctioned as per G.O. (MS)No.62/2021/RD dated 17.02.2022. Hence there are 19 sanctioned post of clerks in Malabar Devaswom Board, now._ _It is submitted that as per Clause 10 of the special Rules as per G.O.(P) No. 34/2020/RD dated 20.4.2020 published in SRO No.298/2020 of the Government Gazettee, it is stipulated that reservation for appointment by direct recruitment and by transfer shall be in the_ WP(C).No.18395 OF 2022 4 _proportion 2:1. Thus 13 posts were set apart for direct recruitment and 6 posts were reserved for appointment by transfer from the temple employees under Malabar Devaswom Board. Notification was issued inviting applications from both the Categories. In the category of direct recruitment category No.41/2020, the ranklist was published and 13 candidates amongst were advised and appointed. But two candidates relinquished appointment and this has been duly intimated to the 2nd respondent, which will be duly advised, as provided in Rule 16(ii) of the Rules under KDRB Act. Among the candidates joined duty, one had resigned and the same has also been reported to 2nd respondent as per letter No. J1.12/2022 dated 25.5.2022. So there is no vacancy existing in Malabar Devaswom Board for being reported to the recruitment Board now.”_ It is further submitted that as far as the six posts reported and notified for category No.42/202 is concerned, there were no qualified candidates and as such the 2[nd] respondent is bound to issue re-notification for appointment from the same category and it cannot be filled up by appointing the candidates from Exhibit P3 ranked list. It is stated that two other writ petitions ie. W.P.(C) Nos.10990 and 19933 of 2022 are pending before this Court, claiming selection and appointment WP(C).No.18395 OF 2022 5 in the 'by transfer' category. It is further submitted by the learned counsel appearing for the Malabar Devaswom Board that the Commissioner, Malabar Devaswom Board has addressed the Government on 30.04.2022 for prior approval and sanction for a further 15 clerical posts. 4. 1[st] and 2[nd] respondents have also placed a statement on record stating that two separate notifications have been issued for direct recruitment and by transfer appointment and that there was no qualified candidate in the by transfer list and therefore, the said vacancies are remaining unfilled. It is stated that in the notifications calling for applications, it was mentioned that in the absence of eligible candidates for appointment by transfer, vacancies earmarked for the category will be filled up from the ranked list for direct recruitment. It is submitted that the appointment chart was also prepared on this basis and advice letter was sent to the Malabar Devaswom Board. However, it was WP(C).No.18395 OF 2022 6 found that the inclusion of the said condition in the notification was by an inadvertent mistake, as there is no provision in the Special Rules of the Malabar Devaswom Board for filling up of vacancies of clerks earmarked for 'by transfer' from the ranked list for direct recruitment. It is further submitted that both direct recruitment as also by transfer appointment have to be made after selection process as per the rules, by the Recruitment Board. It is, therefore, contended that advices have been made in accordance with the reporting of vacancies available for direct recruitment and that advice against vacancies kept apart for 'by transfer' appointment have been recalled, on noticing the mistake. 5. Heard all the counsel and considered the contentions advanced. 6. The learned counsel for the petitioners submits that in view of the specific condition provided in the notification that vacancies in the by transfer WP(C).No.18395 OF 2022 7 category would also be made from the list prepared for appointment by direct recruitment, in case there is no qualified person available for appointment by transfer, the vacancies are liable to be filled up from Exhibit P3 list itself. It is further contended that since it is an admitted fact that the by transfer vacancies available are presently filled up by effecting contractual appointments or daily wage appointments de hors the selection procedure, the petitioners in this writ petition, who are duly included in Exhibit P3 rank list have a better claim for appointment on a contract basis or on daily wage basis as is being done by the Devaswom Board at present. Learned counsel place reliance on a decision of Division Bench of this Court in **Biju C.V. v. Jashna K.J. and Others** [2021 (2) KHC 550] in support of the contention that even in case regular appointments cannot be made to the available vacancies, where such vacancies are filled up either on contract basis or by daily wage hands, the persons who WP(C).No.18395 OF 2022 8 are included in the list would have the right to be appointed on contract basis or on daily wages until those vacancies can be duly filled up by eligible candidates by transfer. 7. Having considered the contentions advanced and in view of the submissions made by all parties, I am of the opinion that the respondent Board is duty bound to make appointments from the ranked list prepared for direct recruitment to all the vacancies arising in the said quota. However, in view of the fact that there is no provision in the Special Rules permitting the filling up of the vacancies available by transfer from the ranked list prepared for direct recruitment, I am of the opinion that even the specification in the Exhibit P2 notification cannot provide a right to the petitioners to contend that they shall be regularly appointed against the posts which are kept apart from 'by transfer' appointments. However, in view of the fact that the vacancies of clerks available in the Board are presently occupied by WP(C).No.18395 OF 2022 9 contract/daily wage hands, I am of the opinion that the petitioners who are included in the list for direct recruitment are entitled for appointment as clerks on contract basis or on daily wages as is being presently done to all the available vacancies of clerks under the Malabar Devaswom Board. This will, ofcourse, be subject to the claims of the petitioners in W.P.(C) Nos.10990 and 19933 of 2022. The issues raised therein will be decided in those writ petitions and if the petitioners therein are found eligible for regular appointment in the by transfer category, the persons engaged on daily wages/on contract will definitely have to yield to the rights of such candidates. Appropriate steps shall be taken to advise and appoint the persons included in Exhibit P3 ranklist on a contract basis/on daily wages as is being presently done to all available vacancies on the basis of their ranking and following communal reservation in accordance with law. In case regular vacancies arise for appointment by WP(C).No.18395 OF 2022 10 direct recruitment, during the currency of Exhibit P3 ranked list, the persons who are recruited on contract basis/daily wages as directed above will be regularized against those posts. Appropriate steps shall be taken within a period of ten days from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly **Sd/ANU SIVARAMAN JUDGE** SSK/11/07 WP(C).No.18395 OF 2022 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** COPY OF THE NOTIFICATION NO.329/R1/2020/KDRD TRUE DATED16.02.2020 ISSUED BY THE RECRUITMENT Exhibit P1 BOARD INVITING APPLICATION FOR APPOINTMENT TO THE POST OF CLERK IN THE SERVICE OF MALABAR DEVASWOM BOARD AS CATEGORY NO.41/2020. TRUE OF COPY NOTIFICATION NO.329/R1/KDRB/2020 DATED 16.12.2020 ISSUED BY THE RECRUITMENT Exhibit P2 BOARD, INVITING APPLICATION FOR APPOINTMENT TO THE POST OF CLERK IN THE SERVICE OF MALABAR DEVASWOM BOARD AS CATEGORY NO.42/2020. TRUE COPY OF THE RANK LIST NO.24/2021 FOR CATEGORY NO. 41/2020(BY DIRECT RECRUITMENT) Exhibit P3 PUBLISHED BY BY THE RECRUITMENT BOARD ON 22.12.2021. TRUE COPY OF THE RANK LIST NO.25/2021 DATED Exhibit P4 22.12.2021 FOR CATEGORY NO.42/2020 (BY DIRECT RECRUITMENT) PUBLISHED BY THE RECRUITMENT BOARD. TRUE COPY OF THE ADVICE DATED 28.12.2021 OF THE Exhibit P5 RECRUITMENT BOARD. TRUE COPY OF THE ADVICE DATED 23.02.2022 ISSUED Exhibit P6 BY THE RECRUITMENT BOARD. TRUE COPY OF THE ADVICE DATED 07.03.2022 ISSUED Exhibit P7 BY THE RECRUITMENT BOARD. TRUE COPY OF THE RTI APPLICATION DATED Exhibit P8 22.04.2022 SUBMITTED BY SMT. BABITHA S. NAIR. TRUE COPY OF THE LETTER NO.RTI-74/2022/MDB DATED Exhibit P9 19.05.2022 OF THE STATE PUBLIC INFORMATION OFFICER OF THE DEVASWOM BOARD. TRUE COPY OF THE RTI APPLICATION FILED BY SMT. Exhibit P10 ANAKHA P. TRUE COPY OF THE LETTER NO.RTI37/2022/MDB DATED Exhibit P11 04.04.2022 OF THE STATE PUBLIC INFORMATION OFFICER OF THE DEVASWOM BOARD. ## **RESPONDENTS' EXHIBITS:** Annexure R-3(1)[The true copy of the Notification No G.O(P) No] 34/2020 RD dated 20.4.2022 SSK //TRUE COPY// PA TO JUDGE