P. Krishna Iyer v. Travancore Devaswom Board and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** # **FRIDAY, THE 9TH DAY OF NOVEMBER 2012/18TH KARTHIKA 1934** ## **WP(C).No. 14007 of 2012 (A)** **---------------------------** ## **PETITIONER :** **---------------------** **P.KRISHNA IYER, S/O.PADMANABHA IYER, WORKING AS SANTHI THIRUNARAYANAPURAM DEVASWOM THIRUVANANTHAPURAM GROUP, THIRUVANANTHAPURAM, 'VAISHNAVAM' NEAR KARIKKAKAM GOVERNMENT HIGH SCHOOL KARIKKAKAM P.O., THIRUVANANTHAPURAM.** **BY ADVS.SRI.R.S.KALKURA SRI.M.S.KALESH SMT.A.V.PRIYA SRI.HARISH GOPINATH** **RESPONDENT(S): --------------------------** **1. THE TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS COMMISSIONER, DEVASWOM BUILDING NANTHANCODE, THIRUVANANTHAPURAM - 695 011.** **2. THE DEVASWOM COMMISSIONER TRAVANCORE DEVASWOM BOARD, DEVASWOM BUILDING NANTHANCODE,THIRUVANANTHAPURAM - 695 011.** **3. THE ASSISTANT DEVASWOM COMMISSIONER THE TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM GROUP FORT P.O.,THIRUVANANTHAPURAM - 695 023.** - ***4. N.GOPALAKRISHNAN POTTI KEEZHSHANTHI, MANACAUD DEVASWOM, MANACAUD THIRUVANANTHAPURAM - 695 009. (*DELETED)** **5. N.SANKARAN NAMBOODIRI SANTHI, PADMATHEERTHAKARA DEVASWOM, FORT P.O. THIRUVANANTHAPURAM - 695 023.** **...2/-** ## **WP(C).No. 14007 of 2012 (A) -2-** ## ***6. ANILKUMAR** **CHENTHITTA DEVASWOM KEEZHSHANTHI, CHENTHITTA VALIYASALA P.O., THIRUVANANTHAPURAM - 695 036. (*DELETED)** ***R4 & R6 ARE DELETED FROM PARTY ARRAY AS PER ORDER DTD. 7/11/2012 IN IA NO. 14601/2012** **R1 TO R3 BY ADV. SRI.G.BIJU, S C, TRAVANCORE DEVASWOM BOARD R4 BY ADV. SRI.S.P.SURESH KUMAR** **R5 BY ADV. SRI.S.KRISHNAMOORTHY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...3/-** ## **WP(C).No. 14007 of 2012 (A)** ## **APPENDIX** ## **PETITIONERS' EXHIBITS :** **EXT.P1 TRUE COPY OF THE ORDER DATED 14.5.2012 ISSUED BY THE 3RD RESPONDENT. EXT.P2 TRUE COPY OF THE ORDER NO. R.O.C. 35/12/SANTHI DATED 8.6.2012 ISSUED BY THE 2ND RESPONDENT. EXT.P3 COPY OF THE CIRCULAR NO. R.O.C. NO. 134/05/SANTHI DATED 10-2-2005 ISSUED BY THE 2ND RESPONDENT. EXT.P4 COPY OF THE LETTER SENT BY THE PETITIONER TO RESPONDENTS 1 TO 3 ON 15-6-2012. EXT.P5(a) COPY OF THE SENDING REPORT OF EXHIBIT P4 TO O471 2310192 AT 3.40 PM EXT.P5(b) COPY OF THE SENDING REPORT OF EXHIBIT P4 TO 0471 2479498 AT 3.42 PM EXT.P6 COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 13-6-2012. EXT.P7 COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 14-6-2012. EXT.P8 COPY OF THE ORDER DATED 13-6-2012 OF THE 2ND RESPONDENT. EXT.P8IN COPY OF THE APPLICATION DATED 9-8-2012 FILED BY THE PETITIONER. CM APPL. NO.6141/12 EXT.P9 COPY OF THE REPORT SUBMITTED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT IN RESPECT OF THE GENERAL TRANSFER OF SANTHIS IN 2012-2013 DATED -05-2012. EXT.P10 COPY OF THE RELEVANT PAGES OF THE PETITIONER'S SERVICE BOOK. RESPONDENTS' EXHIBITS :** **EXT.R3(a) COPY OF THE RELIEVING LETTER ISSUED BY THE SUB GROUP OFFICER, MANACAUD RELIEVING 4TH RESPONDENT FROM DUTY. EXT.R3(b) COPY OF THE ATTENDANCE REGISTER OF THIRUVALLAM DEVASWOM. EXT.R3(c) COPY OF THE RELIEVING LETTER ISSUED BY THE SUB GROUP OFFICER, MITHRANANDAPURAM.** **EXT.R3(d) COPY OF THE RELIEVING LETTER ISSUED FROM CHENTHITTA DEVASWOM.** **(Contd...)** ## **WP(C).No. 14007 of 2012 (A)** **EXT.R3(e) COPY OF THE RELIEVING LETTER ISSUED BY THE SUB GROUP OFFICER, ARYASALA. EXT.R3(f) COPY OF THE REPORT OF THE 3RD RESPONDENT REPORTING THE TRANSFERS EFFECTED PURSUANT TO EXHIBIT P2 ORDER. EXT.R5(a) COPY OF THE SAID REJECTION ORDER OF THE DEWASWOM COMMISSIONER DATED 8.6.12. EXT.R5(b) COPY OF THE APPLICATION DATED 12.6.2012. EXT.R5(c) COPY OF THE ORDER OF THE DEVASWOM COMMISSIONER DATED 13.6.12. EXT.R5(d) COPY OF THE ORDER OF THE ASST. DEVASWOM COMMISSIONER DATED 14.6.12. //TRUE COPY//** **P.A. TO JUDGE** ## **Mn** ## **P.R. RAMACHANDRA MENON, J.** ## **---------------------------------------** ## **W.P.(C). No.14007 of 2012** ## **---------------------------------------Dated this the 9[th] day of November, 2012** ## **JUDGMENT** Transfer and posting as a 'Mel Santi' at Thiruvallam Devaswom under the respondents 1 to 3 is under challenge and the dispute is more in between the petitioner and the 5[th] respondent (4[th] and 6[th] respondents having already been deleted from the party array, as per order dated 7.11.2012 in I.A.No.14601/2012, at the instance of the petitioner). 2. The petitioner has been working as a 'Santi' in the Thirunarayanapuram Devaswom. While so, applications were invited for getting transfer to the desired places in respect of the year 2012-2013. The petitioner submitted option to have posting either as a 'Mel Santi' in the Chenthitta Devaswom, or as a 'Santi' in the Padmatheerthakara Devaswom, or as a 'Mel Santi' in the Thiruvallam Devaswom. According to the petitioner, in the Thiruvallam Devaswom, by virtue of grade and classification, there are two 'Mel Santis' and after considering the credentials of the applicants, Ext.P1 order came to be passed on 14.5.2012, W.P.C. No. 14007 of 2012 -2- whereby the petitioner was given posting as 'Mel Santi' in the Thiruvallam Devaswom. The other post of 'Mel Santhi' was filled up by accommodating a person by name Anil Kumar, who was originally shown as the 6[th] respondent, when the writ petition was filed before this Court. 3. After passing Ext.P1, several complaints/representations/appeals came to be filed before the 2[nd] respondent. After considering the same, Ext.P2 order was passed by the 2[nd] respondent on 8.6.2012, whereby the petitioner's posting in the Thiruvallam Devaswom was set aside and the petitioner was sent to the Valiyasala Devaswom as 'Keezh Santi', while a person by name N. Gopalakrishnan Potti (who was originally shown as the 4[th] respondent at the time of filing the writ petition) was accommodated in the said place at Thiruvallam Devaswom. By virtue of Ext.P2, the appeal preferred by the 5[th] respondent also came to be rejected by the 2[nd] respondent, stating that his claim could not be accepted in view of the availability of a senior hand at Thiruvallam Devaswom. On rejection of the appeal, the 5[th] respondent filed Ext.R5(b) W.P.C. No. 14007 of 2012 -3- representation dated 12.6.2012 before the 2[nd] respondent, pointing out that, between the two persons, only one was senior to him and that the person by name Anil Kumar was junior to the 5[th] respondent, thus seeking to review the order in appeal. 4. After calling for a report from the 3[rd] respondent, the 2[nd] respondent pass Ext.Ext.R5(c) order dated 13.6.2012, whereby the representation/review petition preferred by the 5[th] respondent was allowed and the 5[th] respondent was ordered to be accommodated as 'Santi' at the Thiruvallam Devaswom, replacing Anil Kumar and the latter have been shifted accordingly. The said order has not been challenged by Mr. Anil Kumar. But the petitioner challenges the course and proceedings pursued by the 2[nd] respondent on many a ground, particularly, that the 2[nd] respondent, having passed Ext.P2 exercising the power of the appellate authority, was never vested with any residual power to have the said order reviewed, by way of Ext.R5(c). Reference is also made to clause 13 of Ext.P3 Circular dated 10.2.2005, whereby it has been stipulated that, the competent authority to effect the transfer within the Group is the Assistant W.P.C. No. 14007 of 2012 -4- Commissioner, while the power to effect transfer in between the Groups stands vested with the 2[nd] respondent. In respect of the orders passed by the Assistant Commissioner, the appellate power is vested upon the Commissioner, while appeal against the orders passed by the Commissioner has to be preferred before the Board. The learned counsel for the petitioner submits that, in the absence of any power for review, Ext.R5(c) passed by the 2[nd] respondent is per se wrong and unsustainable in all respects. Reliance is sought to be placed on the decision rendered by the Apex Court in **Kapra Mazdoor Ekta Union v. Birla Cotton Spinning and Weaving Mills Ltd. and Another (2005 (13) SCC 777)** . 5. The learned counsel for the petitioner submits that, the 5[th] respondent stands far behind the petitioner even in respect of the merits as well, in so far as the 5[th] respondent has never worked as 'Mel Santi' at any point of time in his career, though he happens to be senior to the petitioner in service. It is also stated that, the 5[th] respondent has worked nearly three years under the petitioner during the years 1996-1999 as a 'Keezh W.P.C. No. 14007 of 2012 -5- Santi', which denotes that the appointment of 'Mel Santi' is not based on service seniority alone and it depends upon various other factors as well, as discernible from Clause 4 of Ext.P3 Circular; which reckons the prior service, personality, experience etc. It is also brought to the notice of this Court that, on filing Ext.R5(b) petition by the 5[th] respondent, the 2[nd] respondent called for a report from the 3[rd] respondent, who submitted Ext.P9 (dated nil). After considering the said application, the 2[nd] respondent observed that the 5[th] respondent was having 'longer seniority' than Mr. Anil Kumar and accordingly, the 5[th] respondent was given placement as 'Mel Santi' in the Thiruvallam Devaswom simultaneously, shifting Mr. Anil Kumar to elsewhere. 6. The learned counsel submits that, but for the question of seniority, nothing else has been considered by the Commissioner while passing Ext.P5(c) order, which hence is not in conformity with Clause 4 of Ext.P3 guidelines. Reliance is sought to be placed on Ext.P9 report (dated nil) preferred by the 3[rd] respondent referring to the credentials of all concerned, wherein serial No.7 is in respect of the 5[th] respondent, whereby it has W.P.C. No. 14007 of 2012 -6- been certified that the 5[th] respondent has never worked as 'Mel Santhi' so far and that his personality and experience were not satisfactory to be in conformity with the proceedings bearing No. ROC134/05/santhi dated 10.2.2005 issued by the 2[nd] respondent/Commissioner and further that, the 5[th] respondent was 'partly deaf' and that his body constitution was not fit enough to the requisite extent and it was accordingly, that he was transferred to the Thirunarayanam Devaswom Sub Group. This being the position, the petitioner ought to have been preferred than the 5[th] respondent, to be posted at Thiruvallam Devaswom, submits the learned counsel. 7. The learned counsel for the 5[th] respondent submits that the 5[th] respondent is having more 'Station Seniority', of about 18 years and service seniority to an extent of 2 ½ decades, having been commenced service in the year 1987. The learned counsel also submits that there is no difference between the posts of 'Mel Santhi' and 'Keezh Santhi' and that the posting is only as 'Santhi'. It is pointed out that the placement as 'Mel Santhi' or 'Keezh Santhi' is on 'rotation basis' under Travancore Devaswom. W.P.C. No. 14007 of 2012 -7- The learned counsel also submits that, the contents of Ext.P9, to the extent some detrimental remarks have been made against the 5[th] respondent, are not true or correct. 8. The learned Standing Counsel for the Devaswom submits that the course and proceedings pursued by the 2[nd] and 3[rd] respondents are in tune with the relevant facts and figures and that there is no specific plea of malafides. There is also no dispute with regard to the credentials of the 4[th] respondent, in so far as the petitioner has volunteered to delete the 4[th] respondent from the party array, which has been allowed and hence not liable to be considered in this writ petition. 9. With regard to the claim for transfer, the prime question to be considered is, whether it is on the basis of seniority/station seniority/suitability alone or on the basis of various considerations as given in Ext.P3 Circular. On reading Clause '9', it only refers to seniority, which does not give a clear picture whether it is 'service seniority' or 'station seniority'. The word 'station seniority' appears in Clause '20' of Ext.P3, where it has to be given effect to when there are more than one applicant to a W.P.C. No. 14007 of 2012 -8- post within a Group. 'Service seniority' has been separately referred to in Clause '21', where there are more than one applicant to a particular place who have got 'equal station seniority', under which circumstance, placement has to be given based on the service seniority. Normally, the term 'station seniority' acquires significance and sanctity in respect of instances of transfer enabling a person who is having nil or lesser service in the particular station, to come to that station, by causing the person who is having longer service in the station to be shifted. If the Clause is to be interpreted in such a manner that, the person who is having more 'Station Seniority' is to be accommodated in the particular place, then such person may have to be retained in the station for ever, till he retires, which may not be the intention of the concerned authority who issued the Circular. Anyhow, this Court finds that, it is a matter to be considered by the Board, since it is having some general importance while effecting the proceedings and postings. 10. With regard to the disputed claim between the petitioner and 5[th] respondent, the materials on record show that, W.P.C. No. 14007 of 2012 -9- the 3[rd] respondent has certified that the credentials of the 5[th] respondent are not upto the mark, when it is compared with the petitioner. It is also a fact that the petitioner happens to be junior in service, when compared with the 5[th] respondent. The correctness of particulars of 'Station Seniority' and the relevance of 'service seniority' have to be independently assessed by the Board on the basis of actual facts and figures. If the observations in Ext.P9 report are correct, how Ext.E5(c) order came to be passed by the 2[nd] respondent, is a further point to be looked into. If the same is not in conformity with the actual facts and figures, then also, there is no discussion whatsoever in this regard in Ext.R5(c) and for this reason, it is liable to be set aside. 11. With regard to the contentions raised by the petitioner as to the scope of review, this Court finds that the law declared by the Apex Court in **2005 (13) SCC 777 (** cited supra) was with reference to the specific provisions of I.D. Act. Taking note of the actual facts and circumstances and also the law that is to be applied, the Apex Court observed that, in the absence of any clear provision in the statute, no such power of review can be W.P.C. No. 14007 of 2012 -10- invoked, unless it is expressly or by necessary implication, provided therein. Coming to the case in hand, Ext.P3 is only a set of guidelines, which refers to the powers of the original authority and the appellate authority which even by the farthest stretch of imagination cannot be treated on par with the statute. That apart, as early as in the year 1981, a learned Judge of this Court, as per decision reported in **Cheru Ouseph v. Kunjipathumma (1981 KLT 495)** , has explained the scope of power. In any view of the matter, this Court does not propose to consider this issue further, for the fact that, Ext.R5(c) has already been held as not correct or sustainable and it requires to be reconsidered for other reasons. 12. After hearing both the sides and also on going by the pleadings and proceedings and in particular, Clause 13 of Ext.P3 Circular, the concerned party who is aggrieved of the orders passed by the Commissioner, has to approach the Board. Admittedly, in this case, the petitioner has not chosen to approach the Board against Ext.P2. This Court finds it fit and proper to have the matter considered by the Board. W.P.C. No. 14007 of 2012 -11- In the said circumstance, the petitioner is set at liberty to file an appeal against Ext.P2 as well as Ext.R5(c) before the 1[st] respondent/Board within 'two weeks' from the date of receipt of a copy of this judgment, on which event, the same shall be treated as a valid appeal and appropriate orders shall be passed in accordance with law, after giving an opportunity of hearing to all concerned, who claim to have a posting in the Thiruvallam Devaswom. This exercise shall be completed at the earliest, at any rate, within 'six weeks' from the date of filing the appeal as above. 'Status quo' as on date will continue till such time. Writ petition is disposed of . **P.R. RAMACHANDRA MENON, JUDGE.** Kp/-