Sanil Kumar.K.G and others v Travancore Devaswom Board and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS MONDAY, THE 9[TH] DAY OF MAY 2022 / 19TH VAISAKHA, 1944** **WP(C) NO. 17945 OF 2020** ## **PETITIONERS:** 1 SANIL KUMAR.K.G AGED 41 YEARS S/O.A.N.GOPALAKRISHNA PILLAI, KANNANGATTU HOUSE, CHERUKOLE P.O., KOZHENCHERRY-689650 (WATCHER, MALAYALAPUZHA DEVASWOM). 2 V.RAJESH, S/O.VELAPPAN NAIR, PARAVATHY MANDIRAM, OORUTTUKALA, NEYATTINKARA P.O., THIRUVANANTHAPURAM-695121 (KAZHAKAM, VAZHANEEKKAVU DEVASWOM, ON DUTY ARRANGEMENT AS KAZHAKAM, KEEZHTHODIYOOD DEVASWOM). 3 G.SYAMKUMAR, S/O.GOVINDAN NAMBOOTHIRI, KUNNATHUMADAM, VEERANAKAVU P.O., KATTAKKADA-695572 (MELSANTHI, YOGEESWARASWAMY DEVASWOM). 4 VIBINLAL O.V., S/O.VISWAMBARAN O.K., ORAPPANIYIL HOUSE, KEEZHOOR P.O., THALAYOLAPARAMBU, KOTTAYAM-686605 (PANCHAVADYAM, MOOZHIKKULAM DEVASWOM ON DUTY ARRANGEMENT AS OVERSEER IN THE OFFICE OF THE ASSISTANT ENGINEER, KOTTAYAM). 5 AJAYKUMAR.V., S/O.VIJAYAKUMAR, PATTUVILAKAM T.C. 79/1462, KARIKKAKAM P.O., THIRUVANANTHAPURAM-695021 (WATCHER, ELAMPULINGAL DEVASWOM ON DUTY ARRANGEMENT AS OVERSEER IN THE OFFICE OF ASSISTANT ENGINEER, THIRUVANANTHAPURAM). BY ADV S.SUBHASH CHAND ## **RESPONDENTS:** 1 THE TRAVANCORE DEVASWOM BOARD OFFICE OF THE TRAVANCORE DEVASWOM BOARD, DEVASWOM BUILDINGS, NANTHANCODE, THIRUVANANTHAPURAM-695003, REPRESENTED BY ITS SECRETARY. 2 THE DEVASWOM COMMISSIONER, W.P(C) NO.17945/2020 2 TRAVANCORE DEVASWOM BOARD, OFFICE OF THE DEVASWOM COMMISSIONER, DEVASWOM BUILDINGS, NANTHANCODE, THIRUVANANTHAPURAM-695003. 3 THE CHIEF ENGINEER (GENERAL), OFFICE OF THE CHIEF ENGINEER, TRAVANCORE DEVASWOM BOARD, DEVASWOM BUILDINGS, NANTHANCODE, THIRUVANANTHAPURAM-695003. 4 ADDL.R4. SHYAM P. SANKARALYAM (H), KIZHISSERI, KUZHIMANNA P.O., MALAPPURAM, PIN- 673 641. 5 ADDL..R5 NAYANA D. KATTUKETIL THAZHATHIL EZHUKONE P.O., KOLANNOOR, KOLLAM, PIN-691 505. 6 ADDL.R6. SONIYA N.K. NALAMKANDATHIL (H), KARUVISSERY P.O., PARAMBATH, KOZHIKODE, PIN-673010. 7 ADDL.R7. ANAGHA VINOD MANNUPPATTU HOUSE, PARIYARAM P.O., ELANTHUR, PATHANAMTHITTA, PIN8 ADDL.R8. ROHITH V.V. VADAKKEVEETTIL, KOKKALLUR P.O., BALUSSERY, CALICUT, PIN-673612 THE ADDITIONAL RESPONDENTS NOS.4 TO 8 ARE IMPLEADED AS PER THE ORDER DATED 10.12.2021 IN I.A.NO.2/2021 IN WP(C)17945/2020. BY ADVS. SRI.C.K.PAVITHRAN SHRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD P.SATHEESH KUMAR (S 3441) ADARSH S. 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.17945/2020 3 ## **JUDGMENT** The writ petitioners are employed as watcher, kazhagam, melshanti, etc., under the first and second respondent – Travancore Devaswom Board. Under the “Travancore Devaswom Board Reservation of Vacancies of temple employees to the post of Devaswom guard and Third Grade Overseer Rules 2014”,. a copy of which was produced as Ext.P1, 35% of vacancies that occurr in the cadre of third grade overseer and Devaswom Guard would be reserved for promotion from among the qualified temple employees. Petitioners claim that they are fully qualified to be promoted as 3rd grade overseer and Devaswom guard in terms of Ext.P1 in the 35% of quota reserved for such candidates. Accordingly, a draft seniority list was prepared in the year 2016 of the candidates eligible for promotion to the post of grade III overseer. In the meanwhile 32 vacancies in the cadre of officer Grade III arose, out of which 11 vacancies were accordingly reserved for temple employees in terms of Ext.P1. The final list of 19 persons was published by Ext.P2. Ext.P3 is the final seniority list in which the petitioners are shown as the rank Nos13, 15,16,17 & 18 respectively. By virtue of Ext.P3 seniority list, 11 persons were appointed as overseer Grade III, by respondent Nos. 1 and 3 who were ranked as 1 to 11. It is stated that the 7[th] ranked in Ext.P3 requested to continue as Shanthi and relinquished his promotion. Accordingly, ranked No.13 in Ext.P3 seniority list was promoted. Petitioners W.P(C) NO.17945/2020 4 claim that thereafter, no seniority list was published and the petitioners being the next in the line of seniority are entitled to be promoted to the post of overseer grade III which has arisen in the 35 percentage quota after Exts.P2 and P3 It was further stated that petitioners Nos. 1 to 5 are now posted on duty arrangement as overseer in the offices. Respondent No.3 was also appointed as overseer Grade III on duty basis. In the meanwhile, notification inviting applications to fill up the post by direct recruitment was issued on 6/12/2017. According to the petitioners, it shows that 8 vacancies are available for promotion of temple employees under Ext.P1 Rules. Hence, they approached the High Court by filing W.P.(C) No.17112/2017 seeking appropriate reliefs. The writ petition was allowed by Ext.P7 judgment, by which the Devaswom Board was directed to publish a list in accordance with the Rules and to make appointment with reference to vacancies which arose year to year, from 2016 onwards after the appointment was made as per Ext.P4 order. Petitioners claimed that since that judgment was not complied with proceedings have been initiated for contempt of court which is pending. Petitioners have approached this court contending that the respondents 1 and 2 have not complied with the directions contained in Ext.P 7, flouted the above judgment and that the seniority list has not been published after Ext.P4. 2. In the writ petition, the relief sought was to direct the respondent No. 1 to publish the list of qualified employees for appointment as Overseers Grade III for making appointment to the 35 percentage of vacancies in each W.P(C) NO.17945/2020 5 calendar year from the year 2016, onwards after the publication of Ext.P3 list. Another prayer sought was to direct respondents Nos. 1 to 3, to include petitioners in the list for promotion and appoint as overseer Grade III in the regular basis by virtue of Exts. P1. 3. Pending the proceedings, certain persons claiming to be persons included in the rank list number 5/2018 dated 23/6/2018, a copy of which was produced as Annexure A1, filed an application to get themselves impleaded. The above application was allowed and they were impleaded as additional respondents 4 to 8 . 4. In reply to the allegations in the writ petition, counsel for the first respondent being the counsel filed statement dated 2/11/2020 wherein Annexure R1 (A) was produced, which was the seniority list of last grade employees for promotion to the post of 3[rd] grade overseers for the year 2016, 2017,2018 & 2019 and 2020, which were approved and published. .. 5 Another additional statement dated 30/11/2020 was filed wherein a new contention was set up. It was stated that the Chief Engineer ( General) had informed the vacancy position , which were extracted in the statement. According to the Board, in 2015, there were 8 vacancies and in 2016 there were 6 vacancies. Out of the 14 vacancies of the temple employees, the quota available in the 35 percentage category, was four. However, in stead of granting promotion to 4 persons, promotion was given to 11 persons, thereby there was an excess of 7 persons. It was further stated that, in stead of reporting 14 vacancies,32 vacancies were reported. It was stated that W.P(C) NO.17945/2020 6 number of persons eligible for promotion for 35 percentage category during 2017 to 2020 comes to 7 since seven persons were appointed in excess during 2015 – 2016, no appointment could be made during the period 2017 to 2020. Thus, only in the vacancy arising in the calander year 2020 – 21 alone further promotion can be possible. 6. In reply to the above statement dated 30/11/2020, a reply affidavit was filed by the writ petitioners. According to the writ petitioners, the claim of the Board that there were 8 vacancies in the year 2015 and under 35 quota, the number of persons eligible for promotion was only 2, was incorrect and 35% of 8 would come to 2.8. Applying the principle of rounding off, the number of persons, the eligible would be 3. In 2016, there were six vacancies and the number of persons eligible under 35% quota would be two. The 35% of 6 would come to 2.1 . Therefore number of persons found eligible was correctly taken as 2. It was contended that there were altogether 32 vacancies of overseers Grade III g and 35% of the same would come to 11 and therefore, the report of the Chief Engineer correctly stated that 11 persons were found eligible for promotion under 35 percentage quota reserved for temple employees. Ext.P2 order has become final. It was further contended that in the percentage of quota thereby fixed in the subsequent years of 2017 – 2018, there were mistakes in rounding of and by applying the principles of the Supreme Court in State of U.P. v. Pavan Kumar (2005 KHC 603), the calculation made by the Board was incorrect. The crux of the claim in reply affidavit was that, the number of persons eligible for 2017 – 2020 would come W.P(C) NO.17945/2020 7 to 11 by applying the rounding off principle. 7. Subsequently, another counter affidavit was filed by the respondent dated 22/7/20221 along with Annexures R 2(a) to R2(e). In the above additional affidavit, it was reiterated that the first appointment in terms of Ext.P1 Rules was made in the year 2016 and error occurred while estimating the vacancies available under the quota and while making appointment in 2016, instead of filing up 35 % of vacancies from the calendar year 2013, 35 % of the total vacancies were filled up in 2016. In fact, there were only 8 vacancies in 2015 and 6 vacancies in 2016. Accordingly, only 4 persons alone were eligible for appointment under 35 percentage quota. However, 11 persons were promoted. Since the quota exceeded in 2016, excess promotions made were adjusted against the vacancies which arose under the 35% quota in the subsequent years. Hence, there were no vacancies in subsequent years till 2020. The seniority list of persons eligible to get promotion under Ext.P1 for the year 2016 -2017 , 2018, 2019 and 2020 were produced as Annexures R2 A to R2 (E). It was stated that even if there were no mistakes in filling up the petitioner herein, would not have been appointed in the subsequent years, considering their seniority, since all those persons who were appointed in the year 2016 had more service seniority than the petitioners herein. It was further stated that the petitioners were not eligible to get appointment against the vacancies under 35 percentage quota as per Ext.P1 Rules upto the year 2020. Persons who were promoted upto to the rank of number 12 in Annexure R2 are senior to the petitioners herein and W.P(C) NO.17945/2020 8 hence, they cannot have any further grievance. It was stated that the present cadre strength of the Grade III was 42. The 35% of vacancies of overseer Grade III arising from the year 2015 onwards are eligible for promotion under Ext,P1 Rules. Vacancies which were available before 2015 and vacancies under direct recruitment quota till 2017 were reported to the Kerala Devaswom recruitment Board for direct recruitment . It was also stated that considering the financial stringencies faced by the Board and also the available work load, the Board was thinking of reducing the cadre strength of the overseers,. The Board does not intend to make any further appointments to the post before making a final decision in that matter. 8. Heard both sides and examined the records. 9. The crux of the contention of the Board was that by virtue of Ext.P2, it was reported that there were 32 vacancies of Grade III over seer, out of which 35 percentage of vacancies which constitute 11 vacancies could be filled up from among Ext.P3. There is also no dispute that accordingly, 11 persons ranked upto 12 in Ext.P3 were appointed by virtue of Ext.P4 in the year 2016. Thereafter, for the first time, in the additional statement dated 30/11/2020 a contention has been taken up that all though as on 2016, there were only 14 vacancies and 35 percentage of which constituted for four vacancies , instead of promotion to 4 persons, promotion to 11 persons were given . Hence,seven persons in excess were appointed. They continue to be in service and next vacancies arise only in 2021. Since all the writ petitioners were junior to persons who were appointed by virtue of Ext.P3 and they will W.P(C) NO.17945/2020 9 retire only later, the petitioners have no cause of action seems to be the crux of the contentions now set up. 10. There are more reasons than one which prompt this court to disbelieve and reject the above contention now belatedly set up. 11. Except vaguly stating that there were 8 vacancies in 2015 and there were 6 vacancies in 2016 thereby constituting a total of 14 vacancies, the circumstances under which such a mistake happened, when it was brought out and how it happened that several persons who were not eligible to be promoted continue to be in service seems to be absolutely bereft of any detail. The Board has not explained the circumstances under which such a mistake occurred. 12. As indicated above, the crux of the contention of the Board was that only 14 vacancies were available as on 2016, out of which 4 vacancies ought to have gone to lower grade employees of the Board. Necessarily, ten vacancies were available for the open merit candidate. Highly belated contention of the Board that persons in excess were promoted in 2016, necessarily, that should also result in appointment of excess person in the regular category to be appointed by direct recruitment, since even according to the Board since 2016, the stand of the Board was that all together 32 vacancies were reported.. Steps were also taken to fill up that vacancies. Necessarily, there must have been excess number of overseers working in the Board during that time. It is impossible to believe that it went out of notice of Board till now. The Board has never taken such a W.P(C) NO.17945/2020 10 stand till the additional statement filed in November 2020 . 13.As indicated above, there was a calculation of instead of 32 vacancies of grade 3 overseer is reported, there were only 14 vacancies available, necessarily, that implies that in the category of remaining 65 percentage of the direct recruitment excess persons have been appointed. As indicated why, there is no explanation as to how it so happened that so many persons both in direct recruitment as well as promoting cadre continue to be in service of the Board without being notice till 2021. Absolutely, no explanation is forthcoming. For this reason alone, contention now taken up by the Board which is even otherwise not supported by the materials is prima facie, suspicious. 14. In the writ petition, the petitioners have a specific case that in 2017, steps were taken up for filing up 29 vacancies which were notified. If excess persons were appointed, necessarily, the process of that should also have been noticed. The petitioners have a specific case that by virtue of Ext.P5, persons who were appointed, In Grade – III, by Ext.P3, were promoted in the year 2017 as over seer Grade 2. Necessarily, further vacancies of all those persons has arises in the category of overseer Grade III. This has not been explained and this belies the contention of the Board that persons were appointed in excess. 15.It is also to be noted that in W.P.(C) No. 17112/2018, this Board never had such a contention. Though specific contention was taken up by the petitioners in that writ petition, that they were not promoted to the W.P(C) NO.17945/2020 11 35% of quota that has arisen after 2016, and sought for relief, the Board did not raise a contention that persons have already been appointed in excess in the cadre of Overseer Grade III. Ext.P7 judgment has neither been challenged till now nor been subjected to review on any ground. Evidently, it is binding on the Board and if they have not complied with, necessarily, the consequences of that should follow. Since it is reported that contempt of court case i 1170/2020 is pending, I am not inclined to make any further comments, except holding that the present stand now taken up in the additional statement that excess persons were appointed, is only to be rejected. 16.The above contention is not sustainable for the further reason that the petitioners herein have a specific case that all of the above petitioners are now working on work arrangement as overseer Grade -III which also militates against the contention of the Board of excess appointees. 17. To mount all the above all, in another writ petition,W.P.(C) No. 7432/2021, which was filed at the instance of the direct recruit, an interim order was passed by this court which is produced as Ext.P11. This court after hearing the learned counsel for the Board who submitted that few vacancies were available in the post of overseer grade III, direction was issued to the competent authority to report 34 vacancies of overseer Grade 3 to the respondent provisionally and to the subject to further orders in the writ petition. 18. Definitely, even at that point of time, the Board had no case that excess persons have been appointed in 35 percentage quota nor in the 65 W.P(C) NO.17945/2020 12 percentage quota of direct recruitment. After having assimilated the above facts, I am inclined to hold that the contention of the Board that excess persons have been appointed is only to be rejected in toto. 19. Having considered this, I am inclined to allow the writ petition directing the Board to calculate the number of vacancies that have arisen having regard to the facts mentioned earlier, as well as having regard to the decision reported in _**State of U.P. v. Pavan Kumar(2005 KHC 603)**_ referred to earlier, to publish a list of qualified temporary employees for appointment as .overseer grade III for making appointment to the quota of 35% of vacancies in each calendar year under Ext.P1 Rules from the year 2016 onwards after the publication of Ext.P3 list, strictly in accordance with law as mentioned above and without prejudice to the claim of the persons who have to be directly recruited. Final list shall be published and all eligible persons shall be given promotion within one month thereafter. The writ petition is allowed to the above extent. Sd/- ## **SUNIL THOMAS** ## **Judge** dpk W.P(C) NO.17945/2020 13 ## **APPENDIX OF WP(C) 17945/2020** PETITIONER EXHIBITS - EXHIBIT P1 TRUE COPY OF THE FINAL NOTIFICATION DATED 28.05.2015 OF THE TRAVANCORE DEVASWOM BOARD RESERVATION OF VACANCIES FOR TEMPLE EMPLOYEES TO THE POST OF DEVASWOM GUARD AND IIIRD GRADE OVERSEER RULES, 2014. - EXHIBIT P2 TRUE COPY OF THE ORDER BEARING ROC NO.8589/16/EST.2 DATED 09.08.2016 ISSUED BY RESPONDENT NO.1. - EXHIBIT P3 TRUE COPY OF THE FINAL SENIORITY LIST AS ON JULY, 2016 ISSUED BY RESPONDENT NO.1. - EXHIBIT P4 TRUE COPY OF THE FINAL ORDER BEARING NO.2452 DATED 26.08.2016 ISSUED BY RESPONDENT NO.3. - EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS BEARING NO.827 DATED 12.03.2018 ISSUED BY RESPONDENT NO.3. - EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS BEARING NO.1728 DATED 12.06.2017 ISSUED BY RESPONDENT NO.3. - EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 01.03.2019 IN WP(C)NO.17112/2018 PASSED BY THIS HON'BLE COURT. - EXT.11: COPY OF THE ORDER DATED 31/3/2021 PASSED BY THIS HON'BLE COURT IN W.P.(C) NO.7432/2021 ## RESPONDENTS EXHIBITS: ANNEXURE R1 (A): COPY OF THE SENIORITY LIST OF THE POST OF 3RD GRADE OVERSEERS FOR THE YEAR 2016, 2017 2018, 2019 AND 2020 EXHIBIT R2(A): COPY OF SENIORITY LIST OF THE TEMPLE EMPLOYEES ELIGIBLE TO GET PROMOTION UNDER EXT.P1 RULE FOR THE year W.P(C) NO.17945/2020 14 2016. EXT.R2(B): COPY OF SENIORITY LIST OF THE TEMPLE EMPLOYEES ELIGIBLE TO GET PROMOTION UNDER EXT.P1 RULE FOR THE YEAR 2017. EXT.R2(C): COPY OF SENIORITY LIST OF THE TEMPLE EMPLOYEES ELIGIBLE TO GET PROMOTION UNDER EXT.P1 RULE FOR THE YEAR 2018. EXT.R2(D): COPY OF SENIORITY LIST OF THE TEMPLE EMPLOYEES ELIGIBLE TO GET PROMOTION UNDER EXT. P1 RULE FOR THE YEAR 2019. EXT.R2(E):COPY OF SENIORITY LIST OF THE TEMPLE EMPLOYEES ELIGIBLE TO GET PROMOTION UNDER EXT. P1 RULE FOR THE YEAR 2020. ANNEXURER A1: COPY OF THE RELEVANT PAGES OF RANKED LIST NO.05/2018 DATED 23/6/2018 BY THE DEVASWOM RECRUITMENT BOARD. ANNEXURE A2 :INTERIM ORDER IN W.P.(C) NO.7432 OF 2021 DATED 31/3/2021 W.P(C) NO.17945/2020 15