Travancore Devaswom Board – Appointments on Compassionate Grounds Under Travancore Devaswom Board Made Without Due Regard to the Availability of Vacancies in the Quota Fixed for Compassionate Appointment – Suo Motu Proceedings Initiated - Reg.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN`** ## **`&`** ## **`THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR`** ``` THURSDAY, THE 22[ND] DAY OF JUNE 2023 / 1ST ASHADHA, 1945 DBP NO.11 OF 2021 ``` ``` IN THE MATTER OF TRAVANCORE DEVASWOM BOARD – APPOINTMENTS ON COMPASSIONATE GROUNDS UNDER TRAVANCORE DEVASWOM BOARD MADE WITHOUT DUE REGARD TO THE AVAILABILITY OF VACANCIES IN THE QUOTA FIXED FOR COMPASSIONATE APPOINTMENT – SUO MOTU PROCEEDINGS INITIATED - REG. ``` ## **`PETITIONER:`** ## **`SUO MOTU`** ## **`RESPONDENTS:`** - **`1 THE CHIEF VIGILANCE OFFICER TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM – 695 003.`** - **`2 THE SECRETARY TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM – 695 003.`** - **`3 THE DEVASWOM COMMISSIONER TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM – 695 003.`** - **`4* THE JOINT DIRECTOR, KERALA STATE AUDIT DEPARTMENT, DIRECTORATE, 4TH FLOOR, VIKAS BHAVAN, THIRUVANANTHAPURAM.`** - **`*IS SUO MOTU IMPLEADED AS ADDITIONAL 4TH RESPONDENT VIDE ORDER DATED 22/03/2022 IN DBP 11/2021.`** ``` 2 ``` D.B.P.No.11 of 2021 ``` R1 TO R3 BY SHRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD ``` ``` R4 BY SRI S. RAJMOHAN - SR GOVERNMENT PLEADER ``` ``` THIS DEVASWOM BOARD PETITION HAVING COME UP FOR FINAL HEARING ON 22.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 3 ``` D.B.P.No.11 of 2021 ## **O R D E R** ## Anil K. Narendran, J. This DBP is registered _suo motu_ based on a direction contained in the order of the Devaswom Bench dated 30.03.2021 in DBP No.33 of 2019. The said order reads thus; “While considering DBP No.33 of 2019, it has come to our notice that some applicants for appointment on compassionate grounds are appointed under the Travancore Devaswom Board in different Devaswoms and such appointments are made without due regard to the availability of vacancies in the quota fixed for compassionate appointment. It is also revealed that such appointments are effected not on a regular basis, but only on a temporary basis. In the said circumstances, the Registry shall register a _suo motu_ case in respect of the said matter and upon registration the matter shall be sent before the Bench for consideration on 19.05.2021.” (underline supplied) 2. DBP No.33 of 2019 was registered based on TDB Report No.38 of 2019 of the learned Ombudsman in Complaint Nos.222 of 2017, 143 of 2018 and 91 of 2019. The said complaints before the learned Ombudsman were against the temporary appointments made by the Travancore Devaswom Board against the posts of LD Clerk/Sub Group Officer. In the complaint, it was alleged that some of the appointees are not even qualified to be ``` 4 ``` D.B.P.No.11 of 2021 appointed to the said post. Before the learned Ombudsman, a factual report was directed to be filed, and thereupon the Chief Vigilance and Security Officer (Superintendent of Police), Travancore Devaswom Board, submitted Annexure O4 report. In TDB Report No.38 of 2019, the learned Ombudsman has stated that Annexure O4 report of the Chief Vigilance and Security Officer confirms the allegation in the complaint that appointments were effected in violation of the orders of this Court. 3. By a separate order dated 30.03.2021, this Court disposed of DBP No.33 of 2019, based on the submission made by the learned Standing Counsel for Travancore Devaswom Board that the temporary appointees through Employment Exchange, viz; 88 in number, were all disengaged so as to accommodate the regular appointees advised by the Devaswom Recruitment Board. Paragraphs 3 to 5 of the order dated 30.03.2021 read thus; “3. The learned Standing Counsel would submit that the statement, rather the allegation, that the appointments were effected on a temporary basis without obtaining permission from this Court is not true to facts. It is submitted that it is only after obtaining permission under order in DBP No.12 of 2009 that such appointees were effected. Furthermore, it is submitted by the learned standing counsel that the selection to the aforesaid posts ``` 5 ``` D.B.P.No.11 of 2021 falls within the purview of the Devaswom Recruitment Board and after conducting the selection process the Recruitment Board had already drawn a list and appointments are made based on the advice from the said list. It is also submitted that 115 selectees were advised for appointment and they were all appointed. 4. The learned Standing Counsel would further submit that 30 more vacancies are available, and once the code of conduct in connection with the election to the State Legislative Assembly is lifted, vacancies would be reported to the Recruitment Board and those vacancies would also be filled up from the list based on the advice. The temporary appointees through Employment Exchange, viz; 88 in number, were all disengaged so as to accommodate the regular appointees, it is further submitted. 5. In short, the submissions of the learned Standing Counsel would go to show that the entire temporary appointees were disengaged so as to pave the way for the regular appointees. In the said circumstances, we are of the view that the DBP can be disposed of by recording the aforesaid submissions made by the learned Standing Counsel and accordingly, the DBP stands disposed of by recording the above submissions.” (underline supplied) 4. On 28.07.2021, when this DBP came up for consideration, the learned Standing Counsel for the Travancore Devaswom Board was directed to file an affidavit of the 2[nd] respondent Secretary of the Board. Thereafter, further time was granted on 02.09.2021 and 24.09.2021. In the order dated ``` 6 ``` D.B.P.No.11 of 2021 24.09.2021, while granting further time to file an affidavit, it was ordered that, along with the affidavit filed by the 2[nd] respondent, the decision taken by the Board for making appointments on compassionate grounds, the orders and proceedings issued in that regard, etc., shall place on record. The said affidavit the Board shall state the criteria adopted for such appointments, the eligibility of the respective applicants and other relevant particulars. 5. Pursuant to the direction contained in the order dated 24.09.2022, an affidavit dated 26.10.2021 sworn to by the Secretary of the Board is placed on record, producing therewith Annexure R1(a) to R1(f) documents. By the order dated 22.03.2022, the Joint Director, Kerala State Audit Department, Travancore Devaswom Audit was _suo motu_ impleaded as additional 4[th] respondent. The learned Senior Government Pleader entered appearance for the additional 4[th] respondent and sought time to get instructions. The additional 4[th] respondent Deputy Director, Kerala State Audit Department has filed a counter affidavit dated 18.03.2023. 6. Heard the learned Standing Counsel for the Travancore Devaswom Board for respondents 1 to 3 and the Senior ``` 7 ``` D.B.P.No.11 of 2021 Government Pleader for the additional 4[th] respondent Joint Director, Kerala State Audit Department. 7. Travancore-Cochin Hindu Religious Institutions Act, 1950 enacted by the State Legislature makes provision for the administration, supervision and control of incorporated and unincorporated Devaswoms and of other Hindu Religious Endowments and Funds. As per the provisions under Section 3 of the Act, the administration of incorporated and unincorporated Devaswoms shall vest in the Travancore Devaswom Board. 8. Section 24 of the Act deals with maintenance of Devaswoms, etc., out of Devaswom Fund. As per Section 24, the Board shall, out of the Devaswom Fund constituted under Section 25, maintain the Devaswoms mentioned in Schedule I [i.e. incorporated Devaswoms], keep in a state of good repair the temples, buildings, and other appurtenances thereto, administer the said Devaswoms in accordance with recognised usages, make contributions to other Devaswoms in or outside the State and meet the expenditure for the customary religious ceremonies and may provide for the educational upliftment, social and cultural advancement and economic betterment of the Hindu community. 9. Section 29 of the Act deals with Board’s control over ``` 8 ``` D.B.P.No.11 of 2021 Devaswom Department. As per sub-section (1) of Section 29, the Devaswom Department constituted in 1097 shall continue and shall consist of such number of Hindu officers and other servants as may be determined from time to time by the Board. As per subsection (4) of Section 29, the expenditure in connection with the Devaswom Department shall be met out of the Devaswom Fund mentioned in Section 25. As per sub-section (5) of Section 29, appointments in the administrative service in the Devaswom Department shall be made by the Board in accordance with such rules as may be prescribed. 10. Section 35 of the Act deals with rule-making powers of the Board. As per sub-section (1) of Section 35, the Board may make rules to carry out all or any of the purposes of the Act not inconsistent therewith. As per sub-section (2) of Section 35, in particular and without prejudice to the generality of the foregoing power, the Board shall have the power to make rules with reference to the matters enumerated in clauses (a) to (g) thereto. As per clause (e) to sub-section (2) of Section 35, the Board shall have the power to make rules with reference to the method of recruitment and qualifications, the grant of salaries and allowances, the discipline and conduct of officers and servants of ``` 9 ``` D.B.P.No.11 of 2021 the Board and the Devaswom Department and generally the conditions of their service. As per sub-section (3) of Section 35, the power to make rules shall be subject to the condition of previous publication. As per sub-section (4) of Section 35, until - rules are made under sub sections (1) and (2) the rules in force before the 1[st] day of July, 1949 shall, so far as may be, continue to be in force. 11. In exercise of rule-making powers under clause (e) to sub-section (2) of Section 35 of the Act, the Board made the Rules for the Appointment of Relatives/Dependents of Devaswom Employees Dying-in-harness, 1989 (for brevity, ‘the Dying-inharness Rules of 1989’), which was published vide Annexure R1(a) notification R.O.C.No.7817/85/Est. dated 06.04.1989. As provided in sub-rule (2) of Rule 2, the Dying-in-harness Rules of 1989 shall be deemed to have come into force with effect from 21[st] July, 1986. 12. Rule 3 of the Dying-in-harness Rules of 1989 defines ‘Devaswom Employees’. As per Rule 3, ‘Devaswom Employees’ for the purpose of these Rules shall include all establishments employees, work establishments employees, temple employees, contingent and part-time contingent employees of the Devaswom ``` 10 ``` D.B.P.No.11 of 2021 and Maramath Departments under the Travancore Devaswom Board, but shall not include those appointed by virtue of their Karanma or other hereditary right. Rule 16 provides that, appointments under these Rules shall be restricted to posts in the lower grade of the particular category in respect of which the normal method of appointment involves direct recruitment. As per the first proviso to Rule 16, only 10% of the vacancies arising in a financial year shall be filled up by such appointment. As per the second proviso to Rule 16, without prejudice to the right of the temple employees to be appointed in the Establishment Service under these Rules, vacancies that occur due to the death of employees will be filled up only by the relative/dependent of temple employees. In the absence of such applicants, other applicants may be considered. 13. The document marked as Annexure R1(b) along with the affidavit dated 26.10.2021 filed by the 2[nd] respondent Secretary, Travancore Devaswom Board is a true copy of the revised list of eligible applicants (as per Board order No. ROC 14178/14/Est.4 dated 24.06.2019) for appointment as Clerk/Second Grade Sub Group Officer and the document marked as Annexure R1(c) is a true copy of the list of eligible applicants ``` 11 ``` D.B.P.No.11 of 2021 (as per Board order No. ROC 4054/02/Est.4 dated 25.01.2018) for appointment as Clerk/Second Grade Sub Group Officer. The stand taken in the affidavit filed by the 2[nd] respondent is that from the list of eligible applicants maintained by the Board, appointments under the dying-in-harness scheme are made, in the order of seniority of the date of death of the deceased employees. 14. In the affidavit filed by the 2[nd] respondent, it is stated that there are 1250 temples under the management of the Board, which are classified into five categories, viz., Administrative Officer Grade, Special Grade, Higher Grade, First Grade and Second Grade, respectively, according to the income generated in these temples. There are 26 Administrative Officer Grade Devaswoms, which are administered by Administrative Officers, who are in the cadre of Assistant Devaswom Commissioners; 44 Special Grade Devaswoms, which are administered by Special Grade Sub Group Officers, who are in the cadre of Junior Superintendents; 52 Higher Grade Devaswoms administered by Higher Grade Sub Group Officers, who are in the Cadre of Head Clerks; 89 First Grade Devaswoms administered by First Grade Sub Group Officers, who are in the cadre of Senior Clerks; and 72 Second Grade Devaswoms administered by the Second Grade Sub Group Officers, ``` 12 ``` D.B.P.No.11 of 2021 who are in the cadre of Lower Division Clerks. There are 283 Sub Groups and 21 Groups. From 1995 till 2017 no direct recruitment was made from open quota to the post of Lower Division Clerk. Only appointments from the dying-in-harness scheme, which is 10% of the vacancies arising in a financial year; promotions from low-paid employees, which is 35% of the vacancies arising in a calendar year; and category change of the Strong Room Guards, which is 5% of the vacancies arising in each calendar year, were made during that period. Whenever an officer from the Establishment Department retires from service, a corresponding vacancy in the cadre of the Lower Division Clerk/Sub Group Officer Grade II arises. Due to the shortage of staff, one Sub Group Officer is put in charge of several temples, ranging up to 10 numbers, which are located at different places. Since the same person is in charge of several temples, the Sub Group Officers are often unable to pay proper attention to the Sub Groups and as such the temple administration as well as the office administration were very much affected. This has resulted in pilferage in the receipts/income of the Devaswoms, which had badly affected the revenue receipt of the Board, and the same was taken note of by this Court. The total number of sanctioned posts in the cadre of Lower Division Clerk ``` 13 ``` D.B.P.No.11 of 2021 was 208 and that in the cadre of Senior Clerk was 195. In the year 2012, the available strength in the cadre of Lower Division Clerk was 124 and that in the cadre of Senior Clerk was 15. Out of 124 Lower Division Clerks, only 10 had the test qualification required for promotion to the cadre of Senior Clerk. 15 persons from the Low-paid employees were promoted and appointed as Lower Division Clerks, as per the order dated 29.01.2019. As such, the number of Lower Division Clerks was 129. Out of the total 195 posts of Senior Clerks, only 15 were filled by way of promotion and 180 posts of Senior Clerks were vacant. As such the total number of posts of Lower Division Clerks and Senior Clerks in Devaswoms and Maramath Department was 403. Only 144 employees were available in service and 259 posts of Lower Division Clerks and Senior Clerks were lying vacant. In the year 2012, due to the dearth of sufficient staff strength, the Board resorted to the appointment of 88 provisional clerks through the Employment Exchange. Some of them were posted in the cadre of Senior Clerk. Though 88 persons were temporarily appointed, 171 posts remained vacant. As such, the staff shortage continued for 5 years. During that period, only a few vacancies were filled through the dying-in-harness scheme and the low-paid promotion ``` 14 ``` D.B.P.No.11 of 2021 scheme. Considering the extreme shortage of clerical staff and that, regular recruitment through the Kerala Devaswom Recruitment Board would take considerable time, the Board - - decided to provisionally appoint persons included in the dying in harness list, as per Annexure R1(d) order No. ROC 9415/12/ Est- 4 dated 26.10.2017. Accordingly, the 3[rd] respondent Devaswom Commissioner, vide Annexure R1(e) order No. R.O.C.1310/86/Est.-A dated 21.11.2017, provisionally appointed 31 persons from the aforesaid list, on the condition that the persons appointed on a temporary basis will have to vacate the post when the regular recruits report for duty. 15. In the affidavit filed by the 2[nd] respondent, it is stated that as per Rule 16 of Annexure R1(a) Dying-in-harness Rules of 1989 only 10% of vacancies arising in a financial year in the cadre of Lower Division Clerk shall be filled up by appointment from this quota. The purpose of the compassionate employment scheme is to give relief to the families of Devaswom employees dying-inharness, who are in distress. The candidates included in the seniority list will get employment only after waiting for several years. Therefore, the Board decided to address the staff shortage by temporarily appointing the candidates included in the dying-in- ``` 15 ``` D.B.P.No.11 of 2021 harness list, so as to provide temporary relief to such candidates. The allegation that many of the candidates included in the list prepared under the dying-in-harness scheme are not eligible for appointment in the post of Lower Division Clerk is absolutely baseless. Only those candidates who possess the basic qualification to apply for the post of Lower Division Clerk can apply for appointment under the dying-in-harness scheme. Their names were included in the list approved by the Board only after the receipt of report from the 3[rd] respondent Devaswom Commissioner, after scrutinising and confirming that the applications are in accordance with the provisions of the said scheme. The educational qualification of each candidate is clearly stated in the list prepared. 16. In the affidavit filed by the 2[nd] respondent, it is stated that for work-study to assess the workload of each temple, the Board issued order No. ROC 87/12/Est. dated 19.06.2013, to consider whether redeployment of existing staff is required or not. Thereafter, vide Board order No. ROC 87/12/Est-1 dated 25.07.2018, a committee consisting of the Devaswom Commissioner, the Chief Engineer (General), the Devaswom Accounts Officer and the Finance and Accounts Officer was ``` 16 ``` D.B.P.No.11 of 2021 constituted to oversee the redeployment process. In the meanwhile, the Board reported 64 vacancies of Lower Division Clerks to the Kerala Devaswom Recruitment Board, for conducting the selection process. Accordingly, the Recruitment Board issued a notification on 09.07.2018. The recruitment process was completed and a rank list was published on 01.11.2019. A service organisation in the Board filed W.P.(C)No.34451 of 2018 with a prayer not to effect further appointment before the completion of the redeployment process. This Court passed an order directing that the selection process shall go on and the appointment should be made only after completing the redeployment process. The Board, on finalisation of the redeployment process, filed an affidavit before this Court stating the number of posts in the cadre of Lower Division Clerk required after redeployment and the number of vacancies in that cadre. In the said affidavit, it was stated that in the Devaswoms, 44 posts of Senior Clerks and 49 posts of Lower Division Clerks are to be reduced. In the Maramath Wing, 6 posts of Senior Clerks and 1 post of Lower Division Clerk are to be reduced. After effecting such reduction, there are altogether 189 vacancies to be filled up. This Court, upon considering the vacancy position, permitted the Recruitment ``` 17 ``` D.B.P.No.11 of 2021 Board to advise candidates from the rank list, vide the order dated 20.01.2020. Accordingly, the candidates advised by the Recruitment Board were appointed. Since the rank list was in force, the temporary recruits appointed through the Employment Exchange were terminated from service. A total of 189 candidates were advised from that rank list and the same was exhausted before advising candidates to all reported vacancies. Hence the - - temporary appointees from the dying in harness list are permitted to continue. 17. In the affidavit filed by the 2[nd] respondent, it is stated that in Annexure R1(f) judgment dated 11.04.2018 in W.P.(C)No.39767 of 2017, a learned Single Judge of this Court had occasion to consider the claim of an applicant in the list for compassionate appointment, for appointment on a temporary basis and ordered to consider his case for temporary appointment. From the list of dying-in-harness applicants, 32 candidates were appointed on a temporary basis. Out of those 32 candidates, 8 candidates had already got permanent appointment on arising vacancy under that quota and the remaining 24 candidates are still continuing on a temporary basis. 18. The specific stand taken in the counter affidavit filed by ``` 18 ``` D.B.P.No.11 of 2021 the additional 4[th] respondent Deputy Director, Kerala State Audit Department is that the dependents of employees who died in harness do not have any special claim or right to employment except by way of concessions that may be extended by the employer under the rules or by a separate scheme, to enable the family of the deceased to tide over the sudden financial crises. The claim for compassionate appointment is therefore traceable only to the rule or scheme framed by the employer for such employment and there is no right whatsoever outside such rule or scheme. 19. In the counter affidavit filed by the additional 4[th] respondent Deputy Director, it is stated that the appointments made by the Travancore Devaswom Board on a temporary basis, from the list prepared under the dying-in-harness scheme, are against the constitutional mandate of Articles 14, 15 and 16 of the Constitution of India and also against the provisions under the Kerala Devaswom Recruitment Board Act, 2015. The Board is obliged to make appointments to the post of Lower Division Clerks, Sub Group Officers, etc. as per the statute and the law laid down in the decisions referred to hereinbefore. The Board appointed 32 candidates from the list prepared under the dying-in-harness ``` 19 ``` D.B.P.No.11 of 2021 scheme, on a temporary basis. Out of the above, 8 candidates already got permanent appointments and the remaining 24 are still continuing. The Board is making temporary appointments from the list prepared under the dying-in-harness scheme and facilitating the candidates in that list to continue as such, till they get an appointment in a regular vacancy under the 10% quota, which cannot be permitted in the eye of law. After the introduction of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959, the employer is duty bound to make their selection through the employment exchange to the existing vacancy. As per Section 4, after the commencement of the said Act in any State or area thereof, the employer in every establishment in the public sector in that State or area shall, before filling up any vacancy in any employment in that establishment, notify that vacancy to such Employment Exchange as may be prescribed. Hence the temporary appointees from the list prepared under the dying-in-harness scheme cannot be permitted to continue and the Board has to make regular appointments in accordance with law, at the earliest. ## 20. In **A. Umarani v. Registrar, Co-operative Societies** **[(2004) 7 SCC 112]** the Apex Court considered the question of ``` 20 ``` D.B.P.No.11 of 2021 appointment of employees by following the regular procedure, instead of appointment due to pressure from the union and on compassionate grounds. The Apex Court observed that the compassionate appointment of a woman whose husband deserted her would be illegal in view of the absence of any scheme providing for such appointment of deserted women. Such an appointee cannot be regularised as regularisation is not a mode of recruitment. ## 21. In **Rajani P. Kuttan v. State of Kerala and others** **[2021 (6) KHC 530]** a Division Bench of this Court held that the Travancore Devaswom Board is obliged to make appointments to permanent or regular posts following the statutory procedures framed in this regard and in fulfilment of the constitutional obligation as laid down in Articles 14, 15 and 16 of the Constitution of India. 22. Rule 16 of the Dying-in-harness Rules of 1989 makes it explicitly clear that only 10% of the vacancies arising in a financial year, in the lower grade of the particular category in respect of which the normal method of appointment involves direct recruitment shall be filled up by compassionate appointment. The averments in the affidavit dated 26.10.2021 filed by the 2[nd] ``` 21 ``` D.B.P.No.11 of 2021 respondent Secretary, Travancore Devaswom Board would make it explicitly clear that after filling up 10% of the vacancies arising in a financial year by way of compassionate appointment from the list of eligible applicants, the Board decided vide Annexure R1(d) order dated 26.10.2017, to provisionally appoint persons included - - in the Dying in harness list, to the vacancies which are earmarked for regular recruitment through the Kerala Devaswom Recruitment Board. Vide Annexure R1(e) order dated 21.11.2017, 31 persons were appointed provisionally from the aforesaid list on condition that they will have to vacate the post when the regular recruits report for duty. 23. The stand taken in the affidavit dated 26.10.2021 filed by the 2[nd] respondent is that since the candidates included in the list of eligible applicants for compassionate appointment get employment only after waiting for several years, the Board decided to provide them temporary relief by offering them appointment on temporary basis, in vacancies exceeding 10% quota reserved as per Rule 16 of the Dying-in-harness Rules, 1989. As per Rule 16 of the Dying-in-harness Rules, only 10% of vacancies arising in a financial year in the cadre of Lower Division Clerk shall be filled up by appointment from this quota. Therefore, ``` 22 ``` D.B.P.No.11 of 2021 any appointment from the list prepared under the dying-inharness scheme, over and above the quota fixed for a financial year, even if it is on a temporary basis, is unsustainable in the eye of law. 24. In **Union of India v. Joginder Sharma [(2002) 8 SCC 65]** the Apex Court held that compassionate appointment is intended to enable the family of the deceased employee to tide over the sudden crisis resulting due to the death of the sole breadwinner, who died leaving the family in penury and without sufficient means of livelihood. If under the scheme in force any such claim for compassionate appointment can be countenanced only as against specified number of vacancies arising, which ceiling came to be imposed in view of certain observations emanating from the Apex Court in an earlier decision, the Tribunal or the High Court cannot compel the Department concerned to relax the ceiling and appoint a person. Since this method of appointment is in deviation of the normal recruitment process under the Rules, where people are waiting in the queue indefinitely, the policy laid down by the Government regarding such appointment should not be departed from by the Tribunal or the High Court by issuing directions for relaxations, merely on account ``` 23 ``` D.B.P.No.11 of 2021 of sympathetic considerations or hardships of the persons concerned. In the said decision, the Apex Court relied on its earlier decision in **LIC of India v. Asha Ramachhandra Ambekar** **[(1994) 2 SCC 718]** wherein it was held that the courts cannot direct appointments on compassionate grounds dehors the provisions in the scheme in force governed by Rules/Regulations/ Instructions. 25. It is well settled that in case any appointment is made in contravention of the statutory rules the appointment would be void ab initio irrespective of any class of the post or the person occupying it. **[See: Renu v. District and Sessions Judge Tis hazari Courts, Delhi – (2014) 14 SCC 50]** . In the case of compassionate appointment, if any appointment is made in contravention of the scheme in force governed by Rules/ Regulations/Instructions, which prescribe a specified quota for compassionate appointment, any appointment made in excess of that quota would be void ab initio, which will not confer any right whatsoever on the person so appointed. 26. As already noticed hereinbefore, the averments in the affidavit dated 26.10.2021 filed by the 2[nd] respondent Secretary, Travancore Devaswom Board would make it explicitly clear that ``` 24 ``` D.B.P.No.11 of 2021 after filling up 10% of the vacancies arising in a financial year by way of compassionate appointment from the list of eligible applicants, the Board decided vide Annexure R1(d) order dated 26.10.2017 to provisionally appoint persons included in the Dyingin-harness list, against the vacancies which were earmarked for regular recruitment through the Kerala Devaswom Recruitment Board, and those persons were provisionally appointed vide Annexure R1(e) order dated 21.11.2017 of the 3[rd] respondent Devaswom Commissioner on condition that they will have to vacate the post when the regular recruits report for duty. Even in the absence of candidates advised by the Kerala Devaswom Recruitment Board, the Travancore Devaswom Board cannot fill up the vacancies earmarked for direct recruitment by giving provisional appointment to candidates eligible for appointment on compassionate ground, since those vacancies will have to be notified for selection through the concerned Employment Exchange, in view of the provisions under the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959. In the result, this DBP is disposed of by declaring that the provisional appointments made by the 3[rd] respondent Devaswom Commissioner vide Annexure R1(e) order dated 21.11.2017 of 31 ``` 25 ``` D.B.P.No.11 of 2021 persons included in the Dying-in-harness list, based on Annexure R1(d) Board order dated 26.10.2017, in excess of 10% vacancies arising in each calendar year for compassionate appointment under Rule 16 of the Dying-in-harness Rules of 1989 are void ab initio, which will not confer the appointees any right whatsoever, including payment of salary attached to that post, till their regular appointment in service against 10% quota reserved for compassionate appointment, according to their seniority in that list. The 2[nd] respondent Secretary, Travancore Devaswom Board and the 3[rd] respondent Devaswom Commissioner shall ensure strict compliance of the declaration contained in this order, within one month from the date of receipt of a certified copy of this order. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr ``` 26 ``` D.B.P.No.11 of 2021 ## **`APPENDIX OF DBP NO.11 OF 2021`** ## **`RESPONDENT ANNEXURES`** - **`ANNEXURE R1(A) TRUE COPY OF THE RULES FOR THE APPOINTMENT OF RELATIVES/DEPENDANTS OF DEVASWOM EMPLOYEES DYING-IN-HARNESS`** ``` ANNEXURE R1(B) TRUE COPY OF THE LIST-I (UPDATED ON 24.06.2019) (LIST OF ELIGIBLE APPLICANTS UNDER THE DYING-IN-HARNESS SCHEME) ``` ``` ANNEXURE R1(C) TRUE COPY OF THE LIST-II (UPDATED ON 25.01.2018) (LIST OF ELIGIBLE APPLICANTS UNDER THE DYING-IN-HARNESS SCHEME) ``` ``` ANNEXURE R1(D) TRUE COPY OF THE PROCEEDINGS OF THE BOARD ROC 9415/12/EST.4 DATED 26.10.2017. ``` ``` ANNEXURE R1(E) TRUE COPY OF THE ROC 1310/86/EST.A DATED 21.11.2017 OF THE BOARD. ANNEXURE R1(F) TRUE COPY OF THE JUDGMENT DATED 11.04.2018 IN W.P.(C) NO.39767 OF 2017. ```