Usha N. Unni v. Cochin Devaswom Board & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA, 1942** ## **WP(C).No.13170 OF 2016(U)** ## **PETITIONER/S:** **USHA N UNNI, AGED 42, W/O. NARAYANAN UNNI,SIVAM, C.42, NORTH GIRINAGAR,NEAR FIRE STATION, KADAVANTHRA-20, NOW WORKING AS KAZHAKAM IN ELAMKULAM KAVALACKAL SREE BHAGAVATHY KSHETHRAM.** **BY ADV. SRI.S.SUBHASH CHAND** ## **RESPONDENT/S:** |**1**|**COCHIN DEASWOM BOARD**| |---|---| ||**REPRESENTED BY ITS SECRETARY, THRISSUR-680**| ||**001.**| |**2**|**THE SPECIAL DEVASWOM COMMISSIONER**| ||**THE COCHIN DEVASWOM BOARD, THRISSUR-680 001.**| |**3**|**THE ASSISTANT COMMISSIONER**| ||**THE COCHIN DEVASWOM BOARD, THRIPUNITHURA**| ||**GROUP-682 301.**| |**4**|**ELAMKULAM KAVALAKKAL SREE BHAGAVATHY KSHETRAM**| ||**ADVISORY COMMITTEE, KAVALAKKAL SREE BHAGAVATHY**| ||**TEMPLE, ELAMKULAM, KADAVANTHRA-682 020,**| ||**REPRESENTED BY ITS SECRETARY.**| -2- W.P.(C). No. 13170 of 2016 & DBP 20 of 2020 **5 ADDL.R5 THE SECRETARY KERALA DEVASWOM RECRUITMENT BOARD, 2ND FLOOR, M G ROAD, THIRUVANANTHAPURAM-695001. (ADDL.R5 IS IMPLEADED VIDE ORDER DATED 21/12/2018 IN IA NO.02/2018 IN WP(C) 13170/2016)** **R1 BY SRI.UNNIKRISHNAN V.ALAPATT, SC, COCHIN DEVASWOM BOARD R1-3 BY SRI.T.K.SAJEEV, SC, COCHIN DEVASWOM BOARD R5 BY SRI.G.BIJU, SC, KERALA DEVASWOM RECRUITMENT BOARD R5 BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.03.2021, ALONG WITH DBP.20/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- W.P.(C). No. 13170 of 2016 & DBP 20 of 2020 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA, 1942** ## **DBP.No.20 OF 2020** ( **IN THE MATTER OF COCHIN DEVASWOM BOARD -CDB REPORT NO.18/2020 IN PETITION NO.11/20 - REQUEST TO REINSTATE IN SERVICE AS KAZHAKAM - SUO MOTU PROCEEDINGS INITIATED - REG.)** ## **PETITIONER/S:** **USHA N.UNNI, AGED 46 YEARS W/O NARAYANAN UNNI 'SIVAM', MIG 99, GANDHI NAGAR, NEAR FIRE STATION, KADAVANTHRA, KOCHI - 682020** ## **SUO MOTU** ## **RESPONDENT/S:** **THE SECRETARY, COCHIN DEVASWOM BOARD THRISSUR - 1** **R1 BY ADV. SRI.K.P.SUDHEER, SC, COCHIN DEVASWOM BOARD** **THIS DEVASWOM BOARD PETITION HAVING BEEN FINALLY HEARD ON 17.03.2021, ALONG WITH WP(C).13170/2016(U), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** -4- W.P.(C). No. 13170 of 2016 & DBP 20 of 2020 ## **JUDGMENT** ## _**Ravikumar, J.**_ DBP No.20 of 2020 is registered based on CDB report No. 18 of 2020 of the learned Ombudsman for Travancore and Cochin Devaswom Boards in petition No.11 of 2020. In the petition before the learned Ombudsman, the complainant prayed for an order for regularisation in the post of Kazhakam under the Cochin Devaswom Board. Prior to its filing, the complainant has preferred the captioned writ petition viz., W.P.(C)No.13170 of 2016 virtually seeking the same prayer. In the writ petition, the petitioner seeks the following relief: “Issue a writ of mandamus, or other appropriate writ, directing the respondents 1 and 2 to sanction a permanent post of Kazhakam in Elamkulam Kavalakkal Sree Bhagavathy Kshetram under the Vyttila Devaswom, Tripunithura Group of the 1[st] respondent Board and regularize the service of the petitioner by making her a permanent employee in that post.” 2. Taking note of the relief sought for in the writ petition, as extracted above, we are of the view that during the pendency of the writ petition, the petitioner was not justified in filing a complaint and pursuing with the said complaint before the learned Ombudsman. -5- W.P.(C). No. 13170 of 2016 & DBP 20 of 2020 3. A perusal of CDB Report No.18 of 2020 would reveal that the learned Ombudsman was given an impression that W.P.(C) No.13170 of 2016 was disposed of. This is evident from the following recital from the report: “ A writ petition was filed by the petitioner as W.P.(C) No.13170/2016. It is said that the writ petition was disposed of with a direction to consider her grievance and to pass order after affording an opportunity of being heard however a copy of the judgment is not made available for perusal.” 4. It would invariably suggest that the petitioner made such a submission and that is what is reflected in the report of the learned Ombudsman. This deprecative act from the part of the petitioner is sufficient to show her the door. Still, we do not now, propose to nonsuit the petitioner for that sole reason. The materials on record would reveal that the complainant in Petition No.11of 2020, based on which the DBP was registered, is the petitioner in the writ petition and she was engaged only as a daily wage employee under the Cochin Devaswom Board. Her initial engagement was in the year 2003. While she was working on daily wage basis as Kazhakam in Kavalakkal Sree Bhagavathy Temple, Elamkulam, she was disengaged with effect from -6- W.P.(C). No. 13170 of 2016 & DBP 20 of 2020 27.04.2019. However, she was subsequently engaged as Kazhakam in Elamkulam Mahavishnu - Narasimha temple. It is in the said circumstances that the complainant/petitioner approached this Court as also the learned Ombudsman seeking regularistion in the post of Kazakam. 5. Heard. 6. With respect to the question as to whether as relates the post of Kazhakam under the Cochin Devaswom Board any method is prescribed for recruitment it can only be answered in the affirmative. This position is indisputable. It is a fact that appointments of various posts including the post of Kazhakam under the Cochin Devaswom Board fall within the purview of the Kerala Devaswom Recruitment Board. It is also a fact that for effecting appointment in vacancies in the post of Kazhakam, the Kerala Devaswom Recruitment Board had earlier invited applications and after completing the process of selection, a ranked list was also published on 01.12.2018. Since then, appointments were effected by CDB against the post of Kazhakam under different devaswoms based on the advice of the Board from the list. When that be the indisputable position, in the light of the -7- W.P.(C). No. 13170 of 2016 & DBP 20 of 2020 exposition of law by the Hon'ble Apex Court in **Umadevi v. State of Karnataka [2006 (4) SCC 1],** when there is prescribed method of recruitment in regard to a particular post effecting appointment in derogation of the same or making appointments on daily wage basis and regularising such hands would be fraud on public. In fact, in that case, regularisation was virtually ordered only as oncer that too, only in respect of appointees who continued for a period of ten years as on the date of judgment, not on the strength of any order of the Court or Tribunal. In view of the existence of specific method of recruitment to the post of Kazhakam selection and in the absence of any legally scheme for because even recognized regularisation, merely subsequent to the decision in **Umadevi's** case (supra) a person was engaged and permitted to continue on daily wage basis for a period of five years or thereabouts cannot be a situation to contend that ignoring the decision of the Apex Court in **Umadevi's case** and existence of a ranked list drawn after conducting selection following the method of recruitment in vogue he/she should be regularised in service. In the said circumstances, taking note of the exposition of law by the Hon'ble Apex Court and also the indisputable position -8- W.P.(C). No. 13170 of 2016 & DBP 20 of 2020 obtained in this case that the Kerala Devaswom Recruitment Board had already invited applications; for appointment to the post of Kazhakam, conducted selection process and drawn a list for effecting appointment to the said post, there is absolutely no question of issuing any direction for regularising a daily wage employee, who was fortunate to get engaged, be it for a longer period. In this case, the fact is that for some period the petitioner was engaged and thereafter disengaged and again was engaged by the Devaswom Board. In the consequential situation, it is also relevant to note that taking note of the fact that on daily wage basis the Cochin Devaswom Board had engaged certain persons and they were permitted to continue for a number of years, the Recruitment Board while issuing notification inviting applications for selection to the post of Kazhakam inserted a specific clause for granting age relaxation so as to enable such daily wage employees who were engaged by the Devaswom to compete in regular selection. This fact is very much evident from the affidavit filed by the respondent pursuant to the directions of this Court on 08.06.2020, in DBP No.20 of 2020. In paragraph 4 of the affidavit filed pursuant to the said direction, the Secretary of the Cochin Devaswom -9- W.P.(C). No. 13170 of 2016 & DBP 20 of 2020 Board stated that the Recruitment Board had already granted age relaxation to daily wage employees who were engaged by the Devaswom in the matter of regular selection. In paragraph 4 it is also stated that the Kerala Devaswom Recruitment Board conducted selection to the post of Kazhakam and notified a list containing the names of candidates found suitable for appointment on the basis of the result of the written test held on 04.08.2018 and a select list was brought into force with effect from 01.12.2018. In CDB Report 18 of 2020, after taking note of the rival contentions made, the learned Ombudsman, framed the following issues and then left it for consideration by this Court:- 1) whether the petitioner acquired any right for regularisation? 2) if not, whether the petitioner's case could be considered by the recruitment board along with the others, for selection and appointment, after granting age relaxation, if they are otherwise found suitable? 7. The affidavit dated 30.10.2020, filed by the Secretary, Cochin Devaswom Board, pursuant to the order dated 08.06.2020 in DBP No.20 of 2020, referred hereinbefore, would reveal that virtually, W.P.(C). No. 13170 of 2016 & DBP 20 of 2020 -10- even without an order, the Recruitment Board had already provided provision for granting age relaxation to the daily wage employees, who were engaged by the Devaswom while issuing notification for regular recruitment to the post of Kazhakam. It is not discernible from the materials on record as to whether the petitioner/complainant had availed the opportunity to participate in the selection process initiated by the Kerala Devaswom Recruitment Board or not. The long and short of the discussion is that the petitioner/complainant is not entitled to the relief of regularisation in the post of Kazhakam. In the result, the writ petition carrying the aforesaid prayers must fail and consequently, it is dismissed and in the light of the decision in the writ petition, the DBP stands closed. ## **Sd/-** ## **C.T.RAVIKUMAR JUDGE** ## **Sd/-** **MURALI PURUSHOTHAMAN JUDGE** das -11- W.P.(C). No. 13170 of 2016 & DBP 20 of 2020 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXT.P1**|**THE PHOTOCOPY OF THE LETTER**| |---|---| ||**DTD.14.9.2015, ALONG WITH THE CHART.**| |**EXT.P2**|**THE PHOTOCOPY OF THE REQUEST**| ||**DTD.10.1.2008.**| |**EXT.P3**|**THE PHOTOCOPY OF THE REQUEST**| ||**DTD.12.8.2008.**| |**EXT.P4**|**THE PHOTOCOPY OF THE REPRESENTATION**| ||**DTD.5.3.2010.**| |**EXT.P5**|**THE PHOTOCOPY OF THE REPRESENTATION**| ||**DTD.30.3.2016.**| |**EXT.P6**|**THE PHOTOCOPY OF THE REQUEST**| ||**DTD.1.12.2003.**| |**EXT.P7**|**THE PHOTOCOPY OF THE REMINDER REQUEST**| ||**DTD.8.3.2004.**| |**EXT.P8**|**THE PHOTOCOPY OF THE REPRESENTATION**| ||**DTD.10.11.2004.**|