Santhosh and A. Suresh v. The Cochin Devaswom Board and The Public Service Commission and Addl. Respondents

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **MONDAY, THE 19TH DAY OF AUGUST 2013/28TH SRAVANA, 1935** ## **WP(C).No. 7758 of 2012 (T)** ## **-------------------------------------** ## **PETITIONER(S):** - **------------------------** **1. SANTHOSH, AGED 37 YEARS, S/O.P.KRISHNANKUTTY, VELLOOR HOUSE, WEST VELLANIKARA MADAKKATHARA.P.O, THRISSUR.** **2. A.SURESH, AGED 28 YEARS S/O.VALLABHAN, ADAMKAVIL HOUSE, GANDHI NAGAR CHEROOR.P.O, THRISSUR.** **BY ADVS.SRI.M.RAMESH CHANDER SRI.ANEESH JOSEPH** ## **RESPONDENT(S):** - **----------------------------** **1. THE COCHIN DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, THRISSUR-680 001.** **2. THE PUBLIC SERVICE COMMISSION, OFFICE OF THE PUBLIC SERVICE COMMISSION PATTOM PALACE, THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY, PIN-695001.** **ADDL.R3 TO R5 IMPLEADED** - **Addl.3. SRI.SHYJI PORUMBUMKATIL HOUSE, P.O., ALAPPAD THRISSUR-680 641.** **Addl.4. SRI.K.ANILKUMAR NAGATHIL HOUSE, P.O.PIDAVOOR, PATHANAPURAM KOLLAM -691 625.** ## **tss** ## **W.P.(C) NO.7758/2012** ## **Addl.5. SRI.M.R.SURESH, MULANGADAN HOUSE, PONJANAM, KATTUR THRISSUR DISTRICT -680 702.** **ADDL. R3 TO R5 ARE IMPLEADED AS PER ORDER DATED 30/05/2012 IN IA 6467/2012.** **R1 BY ADVS. SRI.N.RAGHURAJ,SC,COCHIN DEVASWOM BOARD SRI.KRISHNA MENON, SC, COCHIN DEVASWOM BOARD R2 BY SRI.P.C.SASIDHARAN, SC, KPSC ADDL.R4 BY ADV. SRI.S.RAMESH BABU ADDL.R5 BY ADVS. SRI.V.A.MUHAMMED SRI.K.E.HAMZA.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/06/2013, THE COURT ON 19/08/2013 DAY DELIVERED THE FOLLOWING:** **tss** ## **W.P.(C) NO.7758/2012** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXT-P1 PHOTOCOPY OF THE NOTIFICATION BEARING 5672/F1/88/RD DATED 1.2.1988.** **EXT-P2 TRUE COPY OF THE ORDER NO.M13122/91 DATED 4.1.92** **EXT-P3 PHOTOCOPY OF THE RANKED LIST** **EXT-P4 PHOTOSTAT COPY OF THE JUDGMENT IN DBA 16/2011 DATED 28/9/11** **EXT-P5 TRUE COPY OF THE ORDER OF THE BOARD DATED 22.3.2012.** **EXT-P6 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 22.2.2012.** ## **EXT.P7:- COPY OF THE AFFIDAVIT FILED IN THE DBA WITHOUT EXHIBITS BY THE IST RESPONDENT BOARD.** **P8:- COPY OF THE JUDGMENT IN WP(C) 2146/04 DTD. 9.8.2004.** **P9:- COPY OF THE JUDGMENT OF THE HONOURABLE SUPREME COURT OF INDIQA IN SLP 2436/04 DTD. 30.3.2007 INTERLOCUTORY APPLICATION.** **P10:- COPY OF THE PROCEEDINGS OF THE BOARD DTD 22.5.2012 PLACING SHRI SHYJI UNDER SUSPENSION.** ## **RESPONDENTS' EXHIBITS** **R1(a):- COPY OF THE 2004 RULES FRAMED BY 21146/2004.** **R1(b):-COPY OF THE JUDGMENT IN WP(C) NO.21146/2004.** **R1(c):- COPY OF THE ORDER OF THE BOARD DTD. 26.2.2008.** **R1(d):- COPY OF THE ORDER IN DBA NO.22 OF 2008.** **R1(e):- COPY OF THE REPORT OF THE HONOURABLE OMBUDSMAN IN WP(C) NO.21209/2008.** **R1(f):- COPY OF THE JUDGMENT IN WP(C) NO.21209/2008 DTD. 12.2.2009.** **R1(g):- COPY OF THE COMMON JUDGMENT DTD. 28.9.011 IN WPC.NOS. 1089/2011. R1(h):- COPY OF THE LETTER DTD. 21.10.2011 SENT BY THE BOARD TO THE KPSC. R1(i):- COPY OF THE LETTER DTD 22.2.2012 SENT BY THE KPSC TOP THE BOARD. R1(j):- COPY OF THE LETTER DTD. 4.7.2012 SENT BY THE KPSC TO THE BOARD. R4(a):- COPY OF PROCEEDINGS DTD. 18.10.96 OF COCHIN DEVASWOM BOARD. R4(b):- COPY OF ORDER DTD 4.1.1992 OF DEVASWOM BOARD M1 3122/11.** **tss** ## **W.P.(C) NO.7758/2012** **R4(c):- COPY OF NOTIFICATION DT.D 11.12.2003.** **R4(d):- COPY OF REPORT OF HONOURABLE OMBUDSMAN.** **R4(e):-COPY OF JUDGEMENT IN WP21209/2008.** **R4(f):- COPY OF REPRESENTATION DT.D 16.6.2009. R4(g):- COPY OF JUDGMENT IN WP. 18490/2009.** **R4(h):- COPY OF THE ADDITIONAL COUNTER AFFIDAVIT FILED IN COC. 702/11 DTD. 29.6.2012.** **TRUE COPY** **P.A. TO JUDGE** **tss** A.M.SHAFFIQUE, J. ---------------------------------------------------W.P.(C) No. 7758 of 2012-T --------------------------------------------------Dated this the 19[th] August, 2013 **J U D G M E N T** Petitioners are last grade employees of Cochin Devaswom Board, the first respondent herein. They seek for a direction to the first respondent to make promotion to the post of L.D.Clerk/ Devaswom Assistant on the basis of Ext.P3 rank list. According to the petitioners, by virtue of the common judgment in W.P.(C) Nos. 1089/2011, 5559/2011, D.B.A No. 16/2011 and R.P. 218/2011, a Division Bench of this Honourable Court, while considering the question as to whether the persons in the select list prepared by the first respondent can be appointed held at para 9 as under: “With this we also see that the Board appears to say that it has carried out a selection process. The result of that has to be now held back for some time, without making any appointment on that basis, so W.P.(C) No. 7758 of 2012-T 2 that the process of consultation can be carried out and if concurred to the P.S.C., the select list already prepared can be operated with the concurrence of the P.S.C. We make this observation in the light of the fact that much time has been taken in the process of carrying out the selections and the employees are awaiting their possible movement to higher category in service. If such procedure is adopted, it could also exclude additional expenses of conducting selection to the so-called 25% or 50% of the reserved categories. We also clarify that any expiry of the lists prepared by the Board, with passage of time, will not be of much significance since that is also matter that can be looked into, in the process to consultation. This is because, by the effect of section 127A of the T.C.H.R.I. Act, the statutory rules framed earlier, as also executive orders which were in force, would stand regulated and, if, not fully, to a great extent, defused by the overriding effect of section 127A”. W.P.(C) No. 7758 of 2012-T 3 2. According to the petitioners on the basis of the above judgment, 9 persons were already appointed in consultation with PSC. As per Ext.P6, the P.S.C had permitted appointment of 12 L.D Clerks from the rank list and three more persons are to be appointed. The first petitioner's rank is 11 and that of the second petitioner is 13. One of the persons in the rank list has expired and another person is already promoted and if the appointments are made as directed in the judgment aforesaid and the concurrence of P.S.C, petitioners are also eligible for being appointed. It is contended that the first respondent is proceeding to promote persons who are lower in rank and hence the petitioners have approached this Court seeking the above reliefs. 3. During the pendency of the writ petition, additional respondents were impleaded, who according to the petitioners are going to be appointed overlooking the claim of the petitioners. Reliance is also placed on Ext.P7, W.P.(C) No. 7758 of 2012-T 4 an affidavit filed by the first respondent in D.B.A No. 16/2011 wherein they sought for promoting five persons as L.D Clerks including the additional respondents. Ext.P8 is the judgment of this Court in W.P.(C) No. 21146/2004 wherein a claim for appointing the petitioners therein was rejected by a Division Bench of this Court refusing to place reliance on executive orders after the Rules had come into force. 4. Counter affidavit is filed by the first respondent inter alia contending that the entitlement of temple employees towards 25% of the posts of L.D.C was in terms with Ext.P1 Rules dated 1.2.1988. Subsequently rules were framed by the Board on 11.12.2003 which came into force on 1.1.2004. As per the said Rules the Board introduced selection to the post of L.D.C from last grade employees after conducting written test and interview. As per Board order dated 4.1.1992, Ext.P2, last grade employees under the Board who had passed S.S.L.C and W.P.(C) No. 7758 of 2012-T 5 had worked for five years or more were promoted to the post of L.D.C on the basis of seniority. After framing the 2004 Rules, necessary written test and interview was conducted and the rank list was prepared in terms of Ext.P3. 5. It is contended that certain last grade employees who possessed qualification as per Ext.P2 filed O.P. No. 29999/2002 claiming promotion to the post of L.D.C. By judgment dated 9.6.2003, this Court directed the Board to consider the claim of the petitioners and to pass orders in accordance with the Rules. 6. Certain other last grade employees filed W.P.(C) No. 21146/2004, challenging the 2004 Rules. As per Ext. R1(b) (Ext.P8), judgment, a Division Bench of this Court held that the petitioners were not entitled for the benefit of the earlier rules. It was observed that the request of the petitioners for giving the benefit of executive orders for promotion to the vacancies which arose prior to W.P.(C) No. 7758 of 2012-T 6 the promulgation of the rules cannot be granted. Though the matter was taken up before the Supreme Court, the same came to be dismissed. 7. The petitioners in W.P.(C) No. 21146/2004 along with a few other persons filed W.P.(C) No. 36137/2007 again seeking to consider the representation and to be promoted to the post of L.D.C in terms with the 1992 Board order. The said writ petition was disposed of directing the Board to consider and pass orders on the said representation. It is stated that pursuant to the said judgment the Board by its order dated 26.2.2008 promoted the petitioners in W.P.(C) No. 36137/2007 provisionally and subject to approval of this Court. Ext.R1(c) is the said Board order dated 26.2.2008. 8. The first respondent thereafter filed D.B.A.No. 22/2008 before this Court for approving the said promotions in terms of Ext.R1(c). This Court sought for an opinion on the said appointments from the Ombudsman W.P.(C) No. 7758 of 2012-T 7 for Travancore and Cochin Devaswom Board. It is reported that the appointments were against the Rules framed by the Board in 2004. The report was accepted by this Court as per Ext.R1(d). The Board was permitted to fill up the post only on provisional working arrangement basis by appointing the senior-most person in the respective category and who are qualified to hold the post. It is also observed that as soon as the test and interview and the selection process is over, the selected candidates shall be appointed in the place of provisional hands. The first respondent reverted the petitioners in W.P.(C) 36137/2007 as per its order dated 1.7.2008 which was challenged by them in W.P.(C) No. 21209/2008. Again the views of the Ombudsman was sought for. A report was filed as Ext.R1 (e) stating that if the persons who were senior to the petitioners were entitled for promotion and were given promotion in terms of the 1992 order and there are vacancies for promoting the said petitioners W.P.(C) No. 7758 of 2012-T 8 and if such a request was made before the commencement of new rules, they should be promoted subject to adjustment of their seniority. By Ext.R1(f) judgment, this Court accepted the report of the Ombudsman and directed the Board to pass appropriate orders regularising the promotion of the petitioners along with their seniors and directing to maintain inter se seniority. It is therefore their contention that while determining last grade service, seniority of the department employees in addition to the 8 persons who were already promoted, nine persons were entitled to be promoted. But out of these nine persons, four persons could not be considered for promotion on account of various other aspects and hence the remaining five persons were ordered to be promoted in accordance with their seniority. It is also stated that as per the 2004 Rules, last grade employees were entitled to 25% of the vacancies and since the cadre strength is 81, they were entitled to 20 posts. Out of the aforesaid 20, eight were W.P.(C) No. 7758 of 2012-T 9 promoted based on the judgment in W.P.(C) No. 21209/2001. Out of the remaining 12 posts, the Board decided to promote five last grade employees in terms of their seniority and who are qualified in terms of the 1992 Board order and the remaining seven posts were to be filled up from the rank list prepared by the Board. Permission was sought for by filing D.B.A No. 16/2011 which resulted in the judgment at R1(g) (Ext.P4). 9. It is therefore contended that if the direction by KPSC to appoint 12 persons from the rank list is implemented, five persons referred could not be promoted in terms of the order of the Board in 1992 even though they were entitled to the benefits in the judgment in W.P. (C) No. 21209/2008. It is further contended that out of the aforesaid five persons, two were qualified in terms of Rules 2004, as they figured in the rank list and they were appointed to the post of L.D.C. Three posts are kept vacant and a letter was addressed to K.P.S.C. for considering the W.P.(C) No. 7758 of 2012-T 10 claim of three persons qualified in terms of 1992 Board order. By Ext.R1(j) letter K.P.S.C. had accorded approval for promoting the said three persons and therefore the stand of the first respondent is that they were entitled to appoint the persons who were eligible as per 1992 order and hence petitioners have no right to demand appointment based on Ext. P3 rank list. 10. The 4[th] respondent has also filed counter affidavit supporting the stand taken by the Board and referring to the various orders passed by the Court. They also claimed the benefit of judgment in W.P.(C) No. 21209/2008. 11. The short question to be considered in the above writ petition is whether a direction can be issued to the first respondent to appoint persons from Ext.P3 rank list. 12. As per judgment of this Court at Ext.P4, which is extracted above, the first respondent was under obligation to consult PSC and to make appointments. W.P.(C) No. 7758 of 2012-T 11 P.S.C had recommended that the available 12 vacancies can be filled up from the rank list in terms of Ext.P3. But after having made nine appointments, according to the petitioners, the balance three vacancies are not filled up. 13. The first respondent has taken a contention that five persons are entitled to be appointed on the basis of judgment in W.P.(C) No. 21209/2008 dated 12.2.2009. The learned senior counsel appearing for the petitioners however placed strong reliance on Ext.P8 judgment of a Division Bench of this Court. W.P(C) No. 21146/2004 was filed by petitioners 1 and 5 in W.P.(C) No. 21209/2008. It is not in dispute that what was under challenge in W.P.(C) No. 21146/2004 was the 2004 Rules. The petitioners therein claimed the benefit of “Ext.P2 order” which was the rules prevailing prior to 11.12.2003. Apparently, Ext.P2 order in that case is Ext.P2 in the present case as well. The said request had been negatived by a Division Bench of this Court. The said W.P.(C) No. 7758 of 2012-T 12 matter became final as evident from Ext.P9 judgment. Therefore after the 2004 Rules have come into force, no appointment could have been made by the first respondent based on the previous rules. But it is disheartening to note that when W.P.(C) No. 21209/2008 is filed, the judgment at Ext.R4(e) does not indicate anywhere about the judgment at Ext. P8 nor has it been mentioned, either when a writ petition was filed before this Court that resulted in Ext.R4(g) judgment, nor at any subsequent proceedings including the judgment at Ext.P4. The first respondent is now trying to salvage the situation by relying upon the judgment in W.P.(C) No. 21209/2008 and the orders passed by another Division Bench of this Court accepting the report of the Ombudsman at Ext. R1 (e). In fact in the order passed in Ext.R1(d), no direction was issued by this Court. But in Ext.R1(f) judgment directions were issued by this Court to regularise the promotion of the petitioners along with their seniors. Apparently, W.P.(C) No. 7758 of 2012-T 13 petitioners 1 and 5 in that case ie. P.N.Sankaranarayanan and P. Gireesan has committed fraud on court by filing subsequent writ petitions knowing fully well about the fate of the judgment in W.P.(C) No. 21146/2004 and the judgment of the Supreme Court in S.L.P. No 24836/2004. It is further disheartening to note that said writ petitions were filed by the same counsel. 14. Even now, knowing fully about the nondisclosure of Ext.P8 judgment before three Division Benches of this Court, the first respondent still proceeds to contend that the judgment of the subsequent Division Bench that is W.P.(C) No. 21209/2008 requires to be complied with and still overlooking the directions issued by another Division Bench in Ext.P4 judgment. Having suffered a judgment by way of Exts. P8 and P9, it was not open for the very same petitioners to claim the benefit of 1992 order when the 2004 Rules had come into effect. It is a settled position of law that fraud on court is a W.P.(C) No. 7758 of 2012-T 14 nullity and therefore I have no hesitation to hold that non-disclosure of the judgment in W.P.(C) No. 21146/2004 in the subsequent proceedings had resulted in the said judgments becoming null and void and cannot be relied upon for providing any benefit to any of the parties claiming benefit of the said judgment. **Gowrishanker** v. **Joshi Amba Shankar Family Trust** (1996) 3 SCC 310), **A.V.Pappaya Sastry** v. **Government of A.P.** (2007(4) SCC 221), **National Institute of Technology** v. **Niraj Kumar Singh** (2007(2) SCC 481), **Union of India** v. **Ramesh Gandhi** (2012(1) SCC 476) and **Badani** v. **Bhali** (2012) 11 SCC 574). 15. Viewed in the light of the aforesaid circumstances, I am of the view that the approach of the first respondent in relying upon the judgment in W.P.(C) No. 21209/2008 for appointing certain persons claiming benefit of the 1992 order and who are well behind in the rank list prepared by the Board is contrary to law and is W.P.(C) No. 7758 of 2012-T 15 liable to be deprecated and I do so. 16. The attitude now taken by the first respondent ignoring Ext.P8 judgment of this Court and Ext.P9 order of the Supreme Court is liable to be viewed very seriously. Having regard to the fact that the actual persons who were involved in this matter is not before me, I refrain from issuing any drastic order against the first respondent. But I may caution to say that the first respondent shall not indulge in such exercise or negligent approach in future. While defending such claims being made by employees of the Board, the lawyers concerned also should be very careful when repeated litigations are filed by employees claiming various benefits. It is needless to state that advocate has to assist the court in giving a proper judgment taking into consideration the factual and legal aspects of the matter. They should not fall into the trap of litigants who are capable of defrauding the court as well. Every attempt is to be made by the lawyers concerned to W.P.(C) No. 7758 of 2012-T 16 ascertain the entire factual matters arising in the case before submitting a petition before a court of law. Unless such preliminary steps are taken, it may result in the courts issuing directions which may affect the credibility and integrity of the lawyer concerned. In the result, this writ petition is only to be allowed and I direct the first respondent to make appointments to the balance vacancies out of the approved 12 vacancies by KPSC, from Ext.P3 rank list, within one month from the date of receipt of a copy of this judgment. Sd/- **A.M.SHAFFIQUE, JUDGE** rka /true copy/ W.P.(C) No. 7758 of 2012-T 17