Jiju Krishna .T.U. et al. v. Travancore Devaswom Board

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN TUESDAY, THE 3RD DAY OF APRIL 2012/14TH CHAITHRA 1934 WP(C).No. 34869 of 2010 (G) --------------------------- PETITIONER(S): ------------- 1. JIJU KRISHNA .T.U. S/O.T.U.UNNIKRISHNAN, AGED 32 YEARS, M-26 A3, INDIRANAGAR COLONY, PALAKKAD DISTRICT. 2. ANISH KUMAR.S, S/O.N.K.SIVASANKARA PILLAI, NEDUMPALA HOUSE KULATHUR P.O., VAIPUR (VIA) PATHANAMTHITTA DISTRICT. 3. VIVEK.V.L, S/O.VASUDEVAN, "SREEVIHAR", KUDASANAD P.O., PANDALAM PATHANAMTHITTA DISTRICT. 4. RAJEEV.M.R, S/O.RAVINDRAN NAIR, MANNIPLACKAL HOUSE KUNNONNY P.O., KOTTAYAM DISTRICT, PIN-686 582. BY ADVS.SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN SMT.NITA.N.S. RESPONDENT(S): -------------- 1. TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, NANTHANCODE THIRUVANANTHAPURAM. 2. THE PRESIDENT, TRAVANCORE DEVASWOM BOARD, NANTHANCODE THIRUVANANTHAPURAM. BY ADV. SRI.P.GOPAL (SC) BY ADV. SRI.P.G.PARAMESWARA PANICKER (SR.) BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.34869/2010 ## APPENDIX PETITIONERS EHIBITS: EXT.P1: COPY OF THE SELECT LIST OF THE CANDIDATES FOR APPOINTMENT TO THE POST OF DEVASWOM STRONG ROOM GUARD. EXT.P2: COPY OF THE REPLY DATED 12/4/2007 RECEIVED FROM THE RESPONDENT BOARD UNDER THE RIGHT TO INFORMATION ACT. EXT.P3: COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE COMMISSIONER OF THE DEVASWOM BOARD. EXT.P4: COPY OF THE REPRESENTATION DATED 5/6/2007 SUBMITTED BY PETITIONERS BEFORE THE COMMISSIONER OF THE DEVASWOM BOARD. EXT.P5: COPY OF THE JUDGMENT DATED 7/11/2007 IN W.P.(C) NO.31177 OF 2007 OF THIS HON'N;E COURT . EXT.P6: COPY OF THE ORDER DATED 18/4/2008 ISSUED BY THE RESPONDENT BOARD. EXT.P7: COPY OF THE JUDGMENT DATED 22/10/2008 IN W.P.(C) NO.16408 OF 2008 OF THIS HON'BLE COURT. EXT.P8: COPY OF THE COMMUNICFTION DATED 3/9/2010 RECEIVED BY THE PETITIONERS UNDER THE RIGHT TO INFORMATION ACT FROM THE RESPONDENT BOARD. EXT.P9: COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 14/2/2009. EXT.P10: COPY OF THE JUDGMENT DATED 3/9/2010 IN W.A. NO.1421/2010 OF THIS HON'BLE COURT. /TRUE COPY/ P.A. TO JUDGE. ## **K.SURENDRA MOHAN, J. -----------------------W.P(C). NO. 34869 OF 2010 ------------------------** Dated this the 3[rd] day of April , 2012 ## **JUDGMENT** The petitioners are persons who had applied for selection and appointment to the post of Devaswom Strong Room Guards under the Travancore Devaswom Board. Applications for the said post were called for as per Ext.R1(a) notification. After a due selection process, Ext.P1 list was prepared. The petitioners are ranked as Nos.19, 21, 22 and 30. Persons who were ranked up to No.18 have been appointed. The last appointment was on 3-4-2006. Thereafter no appointments have been made, though there are a number of vacancies available. According to the petitioners, the selection was conducted strictly in accordance with the notification published, by an IPS officer deputed by the State Government. 2. Since no appointments were made after 3-4-2006 as stated above, the petitioners submitted Exts.P2 and P4 representations to the respondents. However, there was no response from them. Therefore, the petitioners filed W.P.(C) W.P.(C). No.34869 /2010 2 No.31177/2007 challenging the action of the respondents. The writ petition was disposed of as per Ext.P5 judgment dated 7/11/2007 with the following directions; “4. In the facts and circumstances of the case, I direct the respondent Board to take a decision as to whether they want to continue to enforce Exhibit-P1 list or whether steps will be taken to conduct a fresh selection, at the latest by 31/5/2008. Enforcement of Exhibit-P1 list will depend upon the decision to be taken by the Board. Obviously persons included in Exhibit-P1 list will stand a chance to be appointed, provided the Board takes a decision to retain the list as such.” 3. Pursuant to the above direction, the first respondent Board reconsidered the matter and passed Ext.P6 order dated 18/4/2008. As per Ext.P6, the Board decided that the selection list Ext.P1 need not be enforced. 4. The petitioners challenged Ext.P6 before this court by filing W.P.(C) No.16408/2008. The said writ petition was disposed of by Ext.P7 judgment dated 2/10/2008. In the said judgment, this court set aside Ext.P6 and directed the first respondent Board to reconsider the issue. The direction of this court in Ext.P7 reads as follows; W.P.(C). No.34869 /2010 3 “ In the circumstances, I am of the view that the Board should reconsider the issue, as originally directed in Ext.P5 judgment. I make it clear that if the Board ultimately finds that they need not further proceed with the enforcement of the select list, they may so decide, but the reasons which persuade the Board should be reasonable, fair and non arbitrary.” This court has gone on to further direct as follows; “If the Board decides to enforce the select list, then the fact that the period of validity as originally contemplated was only three years need not stand in the way of enforcement of the select list as such .“ 5. On the basis of the above directions, the matter was reconsidered by the first respondent. Thereafter by Ext.P9 dated 14/2/2009, the Board has again decided that the select list is to be cancelled . The said order Ext.P9 is under challenge in this writ petition. 6. According to the learned senior counsel, Sri.N.N.Sugunapalan, appearing for the petitioners, Ext.P1 list bears an endorsement at the bottom to the following effect; “This list will be valid for a period of three years from 22/10/2005” It is not in dispute that there were vacancies available during the W.P.(C). No.34869 /2010 4 currency of the selection list to which the petitioners could have been appointed. In Ext.P7 judgment, this court has provided that in the event of the Board deciding to enforce the select list, the fact that the period of validity of the list had expired would not stand in the way of enforcement of the list. In view of the above, the rights of the petitioners, who are ranked in Ext.P1, are protected and, therefore, they are entitled to claim appointments in spite of the expiry of the period of validity thereof. According to the learned senior counsel, the stand of the first respondent Board, as evident from Exts.P6 and P9, are different. The conduct of the first respondent in shifting their stand is submitted to be without any bonafides. It is clear that they have been trying to find reasons to justify their illegal acts. For the above reasons, it is contended that Ext.P9 is liable to be set aside and appropriate directions issued to operate the list Ext.P1 in so far as the petitioners are concerned. 7. Advocate Sri.P.Gopal who appears for the respondents stoutly opposes the contentions of the learned counsel for the petitioners. According to the learned counsel, the post of Strong Room Guard is borne on the administrative wing of the W.P.(C). No.34869 /2010 5 first respondent Board. As per Rule 9 of the recruitment rules extracted in paragraph 6 of the counter affidavit, the validity of the rank list would be for a period of one year from the date of publication thereof. Ext.R1 (a) notification was published by the first respondent Board in accordance with the Rule 9 and it is for the said reason that it has been specified in Ext.R1(a) that appointments will be made to vacancies that were existing as well as as those vacancies that arise during the period of one year from the date of publication of the rank list. According to the learned counsel, the above stipulation in Ext.R1(a) clearly indicates that the validity of a rank list prepared pursuant to the said notification would be only for a period of one year. However, the previous Board that was in administration has without any authority made the inscription in Ext.P1 that the validity of Ext.P1 rank list would be for a period of three years. Since the said noting was in violation of the Rules, it is contended that the same can have no effect. It is also pointed out that all concerned were aware that the validity of the list was only for a period of one year and it is for the said reason that no appointments were made from the list after 3-4-2006. The W.P.(C). No.34869 /2010 6 validity of the list expired on 21/10/2006. 8. It is the further contention of the learned counsel for the respondents that on 5/2/2007 Section 29A of the Travancore Cochin Hindu Religious Institution Act 1950 was brought into force. Section 29A reads as follows; ## **“29A.Appointment to be made through Kerala Public Service Commission** Notwithstanding anything contained in this Act or in the rules or the bye laws made thereunder relating to the recruitment and conditions of service of officers and employees of the Board, all appointments of officers and employees in the Devaswom Administrative Service of the Board for which direct recruitments resorted to, shall be made from a select list of candidates belonging to Hindu religion furnished by the Kerala Public Service Commission, in accordance with the law made for the exercise of this additional function by the Kerala Public Service Commission. A Hindu member/members of the Public Service Commission may discharge the function of conducting interview in the process of selection of candidates for appointments.” 9. In view of the above provision any recruitment to the post of Strong Room Guard can be made at present only through the Kerala Public Service Commission. On 1/7/2008, the Kerala Public Service Commission (additional functions with respect to the administrative services under the Devaswom Board) Act 2008 W.P.(C). No.34869 /2010 7 and the Rules thereunder were brought into force. Thereafter, it is contended that it is not possible for the first respondent Board to make appointments to the post of Strong Room Guard or to any other post. It is also contended by the learned counsel that the challenge against Ext.P9 is vitiated by delay which has not been explained by the petitioner. Though Ext.P9 order is dated 14-2-2008, the writ petition was filed only on 16/11/2010. It is also contended that just because the petitioners have been ranked in Ext.P1, they do not have any right to claim an appointment and therefore they have no right to be enforced through this court. Reliance is also placed on the Division Bench decision of this court in **Cochin Devaswom Board v. Deputy Director, Local Fund Account(Cochin Devaswom) (2011 (4) KLT 849)** . 10. I have heard the learned counsel appearing for the rival parties. I have also considered the contentions advanced before me anxiously. 11. The claim of the petitioners in this case is for appointment to the post of Strong Room Guard under the first respondent on the ground that they have been selected for W.P.(C). No.34869 /2010 8 such appointment and ranked as per Ext.P1. Eighteen persons were appointed from out of the said list. Thereafter, though vacancies were available, the petitioners were not appointed. The said act is submitted to be without any justification. 12. The petitioner had earlier filed W.P.(C) No.31177/2007 which was disposed of by Ext.P5 judgment. As per the directions already extracted above, this court has held that the Board was the authority to decide whether they wanted to enforce the list or to cancel the same and conduct a fresh selection. Though Ext.P6 was passed pursuant to the said decision, by Ext.P7 judgment the same was set aside and this court directed the first respondent to consider the matter afresh in accordance with Ext. P5. As already noticed this court has not, in its direction extracted above, given any indication as to the manner in which the matter was to be reconsidered by the first respondent. No such indication is available in Ext.P7 also. Therefore, there was no particular manner prescribed by any of the directions extracted above for the reconsideration that was ordered. At the same time, it has been specifically made clear that if the Board did not feel that it should proceed further with enforcement of W.P.(C). No.34869 /2010 9 the selection list,they could take such a decision but, the reasons for such a decision should be “reasonable, fair and non arbitrary”. Therefore, it would have to be examined whether the reasons in Ext.P9 are reasonable, fair or non arbitrary as stipulated in Ext.P7 judgment. The resolution of the Board contained in Ext.P9 has taken note of the fact that the Kerala Legislature had found various selections made to the first respondent Board to be neither proper nor fair. Therefore, Section 29A was introduced by the Amendment Act of 2007 conferring the right to make such selection on the Kerala Public Service Commission. The said amendments have also been brought into force. It has been mentioned in Ext.P9 that the selections made by the previous Board were not found to have been made properly. The relevant portion of the resolution of the first respondent Board reads as follows; “The High Power Commission appointed by the Honourable High Court of Kerala in 2007 had also recommended that a better selection process has to be put in place for selection of right people for various posts. Similarly, the select lists prepared by the earlier Board have been the subject of allegations of corruption and the High Power Commission has generally found them to be W.P.(C). No.34869 /2010 10 true. The Board is of the opinion that the selection through public service Commission will be transparent, competent and free of allegations of bias and corruption than the existing methods of selection.” 13. The first respondent Board has, for the above and other reasons stated in Ext.P9, decided that the selection to Strong Room Guards shall be made by the Public Service Commission so as to provide transparency in the recruitment procedure and also to see that the better and capable strong room guards are appointed. It is for the above reason that the Board has decided in Ext.P9 to cancel Ext.P1 select list. 14. The question as to whether the decision to entrust the Public Service Commission with the selection process in view of the enactment of Section 127 A of the Hindu Religious Institutions Act 1950 was proper or correct, was considered in the decision reported in 2011 (4) KLT 849 (cited supra). The said case related to appointments made by the Cochin Devaswom Board. Section 127 A relates to consultation of the Public Service Commission. Though a selection had been conducted earlier, the results thereof had been held back without making any appointment on the basis that a consultation with the Public W.P.(C). No.34869 /2010 11 Service Commission could be made. On a consideration of the relevant provisions applicable, this court has held in paragraph 7 of the said decision as follows, in relation to appointments to the post of L.D Clerks. “The aforesaid discussion, clearly shows that the appointment to L.D Clerks, as per law that stood even before the insertion of S.127 A in the T.C.H.R.I.Act, there was direct recruitment as noted above. By the operation of S.127 A and the effect of S.3(2) of the additional Functions Act and the provisions Consultation Rules, the management of the process of recruitment to those posts in the category of L.D. Clerks including all vacancies which existed as on the date of coverage under the additional functions of the P.S.C can be had only in consultation with the P.S.C. Therefore, going by the clear terms of the aforenoted provisions, further appointments in different vacancies of L.D. Clerks in the Board can be had only in consultation with the P.S.C.” 15.Therefore, by the change of law, the procedure of recruitment is altered and recruitment through the Public Service Commission is stipulated. It, can therefore, be seen that Ext.P9 has been issued taking into account the above legal position. 16. It is to be noticed that the persons who have been ranked in Ext.P1 do not have any right to claim appointment. Since the proceedings of the first respondent-Board, Ext.P9, has W.P.(C). No.34869 /2010 12 been issued in accordance with the law applicable at present, it cannot be said that it suffers from any infirmity as alleged. I am not satisfied that Ext.P9 has been issued in violation of the directions contained in either Ext.P6 or Ext.P7 judgment. 17. There is another controversy that relates to the validity of Ext.P1 select list. According to the petitioners, the validity thereof is three years while according to the first respondent Board, it is only one year. It is not in dispute that no appointment was made from Ext.P1 list after 3-4-2006. Rule 9 of the Recruitment Rules provides that the validity of a select list shall be only for a period of one year. It is true that Ext.P1 contains a noting that the validity thereof was for a period of three years. Neither in Ext.P5 nor in Ext.P7 has there been any dispute as to the period of validity of Ext.P1 select list. As already noted above all concerned appear to have proceeded on the basis that the validity of the list was three years. However, since the Rule prescribes one year as the validity of the list, the first respondent Board has no authority to prescribe a different period of three years as its validity. Such a stipulation as found in Ext.P1 without any authority, is only liable to be ignored. At W.P.(C). No.34869 /2010 13 any rate, the petitioners are not entitled to claim any benefit or right of appointment on the basis of the said wrong endorsement. The learned counsel for the first respondent has placed reliance on the judgment dated 7/7/2009 in W.A. No.552/2009 by a Division Bench of this court wherein it has been held that Rule 9 of the Recruitment Rules is a General Rule applicable to all the rank lists for appointment under the Devaswom Board. 18. The observation of this court in the said judgment is extracted hereunder for convenience. “In Government service, various posts are classified as Last Grade, Subordinate Service and State service. Likewise, the posts under the Devaswom Board are classified as higher division, intermediate division and lower division. We have gone through the old and the new rules. Though the amended Rule 9 is introduced under the sub heading 'intermediate division', it is general rule applicable to all rank lists for appointment under the Devaswom Board. We are inclined to take this view for the reason that no other rule concerning the life of a rank list is available. Even assuming that the amended Rule 9 which prescribes the life of rank list as one year is not applicable for appointment to the post of Assistant Engineer, even then, it will not have any effect on the outcome, as the notification inviting applications itself contained a condition that the life of the rank list is one year.” W.P.(C). No.34869 /2010 14 It has therefore be held that the validity of Ext.P1 list was only for a period of one year and not three years. For the above reasons, I do not find any ground to interfere with Ext.P9 or to grant any of the reliefs claimed in this writ petition. The same is therefore dismissed. **Sd/-** **K.SURENDRA MOHAN,** **JUDGE** dpk /True copy/ P.A to Judge. # W.P.(C). No.34869 /2010 15 W.P.(C). No.34869 /2010 16 29A Travancore -Cochin Hindu Religious Institutions (Amendment) Act 2007. Travancore-Cochin Hindu Religious Institutions Act 1950. ## **“29A. Appointment to be made through Kerala Public** ## **Service Commission** . - Notwithstanding anything contained in this Act or in the rules or the bye laws made thereunder relating to the recruitment and conditions of service of officers and employees of the Board, all appointments of officers and employees in the Devaswom Administrative Service of the Board for which direct recruitments resorted to, shall be made from a select list of candidates belonging to Hindu religion furnished by the Kerala Public Service Commission, in accordance with the law made for the exercise of this additional function by the Kerala Public Service Commission. W.P.(C). No.34869 /2010 17 A Hindu member/members of the Public Service Commission may discharge the function of conducting interview in the process of selection of candidates for appointments.”