VALSAN KUNHOLATHILLATH v. STATE OF KERALA & ORS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **& THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR WEDNESDAY, THE 13[TH] DAY OF DECEMBER 2023 / 22ND AGRAHAYANA, 1945 WA NO. 995 OF 2023 WP(C) 6099/2021 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER** VALSAN KUNHOLATHILLATH AGED 57 YEARS S/O.SUBRAMANIAN NAMBOODIRI, HOUSE NO. 1/3841-A, NEAR GAS GODOWN, BILATHIKULAM, ERANJIPALAM P.O., KOZHIKODE DIST., PIN – 673006 (MOB-9446257959) BY ADV C.S.GOPALAKRISHNAN NAIR ## **RESPONDENTS** - 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF DEVASWOM, THIRUVANANTHAPURAM, PIN - 695001 - 2 CHAIRMAN KERALA DEVASWOM RECRUITMENT BOARD, TRAVANCORE DEVASWOM BOARD BUILDINGS, M.G.ROAD, AYURVEDA COLLEGE JUNCTION, THIRUVANANTHAPURAM, PIN - 695001 - 3 SECRETARY KERALA DEVASOM RECRUITMENT BOARD, TRAVANCORE DEVASWOM BOARD BUILDINGS, M.G.ROAD, AYURVEDA COLLEGE JUNCTION, THIRUVANANTHAPURAM, PIN - 695001 - 4 MALABAR DEVASWOM BOARD REPRESENTED BY ITS COMMISSIONER, CIVIL STATION, KOZHIKODE, PIN - 673001 5 K.V.GOKULANANDAN KOTTALA HOUSE, CHERUTHAZHAM, NEAR HANUMARAM TEMPLE, MUNDOOR P.O., KANNUR, PIN - 670501 6 RAJAN K.V KUNNARATH HOUSE, THERU ROAD, PAYYANNUR-, PIN - 670307 - 7 MOHANACHANDRAN PADAPPAYIL ,CHUZHALI, THALIPARAMBA, KANNUR DIST., _**WA.995/2023**_ 2 PIN - 670142 8 DINESAN K KUMMUNIKUNNATH, V/500 A, VALAMBUR, PERINTHALMANNA, MALAPPURAM DIST, PIN - 679325 9 MANOJKUMAR K CHENNAPPANTHODI, KOTTAPPURAM P.O. OTTAPPALAM , PALAKKAD DIST, PIN - 679513 10 BINOY BHASKAR INDIRA BHAVAN, 50/4, PULLARA, ERANAD,, MALAPPURAM DIST., PIN - 676517 11 SREEKUMAR P SREENIVAS, PARAYARIKKAL HOUSE, KAPPIYOOR, KOTTAPADI P.O., CHAVAKKAD, THRISSUR DIST., PIN - 680505 12 SASIKANTH K USHANILAYAM, 8/22, ELAMBULASSERY, OTTAPPALAM , PALAKKAD DIST.-, PIN - 678595 13 PRASANNAKUMAR K P KOKKURI HOUSE, PARUTHIPRA, SHORNUR, OTTAPPALAM, PALAKKAD DIST.-, PIN - 679121 14 MANIKANDAN M AMRITHAM,3/209, CHEKKINIPADAM, PALAKKAD DIST., PIN - 678008 15 SAJEEVAN P.K KANATHIL HOUSE, 4/123, ELAVALLY, CHAVAKKAD, THRISSURE DIST.-, PIN - 680511 16 BEENA C.P BEENA BALAGOPALAN, 330/07, OZHAKROME, KANNUR, KANNUR DIST.-, PIN - 670567 17 RADMESH R CHEMBIL KRISHNAKRIPA, GRAMAM VADAKKENCHERY, ALATHOOR, PALAKKAD DIST.-, PIN - 678683 18 SAJITH K KATTIL HOUSE, 15/449, THALASSERY, KANNUR DIST.-, PIN - 670741 19 C.V.DAMODARAN CHIRAKKARAVEEDU , 02/ KUNNARU, PAYYANNUR , KANNUR DIST-, PIN - 670308 20 HARIDAS K.P _**WA.995/2023**_ 3 THOZHUVANNUR BAGHAVATHIDEVASWAM, THOZHUVANNUR, TIRUR , MALAPPURAM DIST.-, PIN - 676552 21 RAMAKRISHNAN K, KOTTAYIL HOUSE, VENDALLURIRIMBILLIYAM PO., TIRUR, MALAPPURAM DIST.- PIN - 679572 22 PANKAJAKSHNAN KIZHAKKEPPATT SREELAKSHMINIVAS, 5/359,KARALMANNA, OTTAPPALAM, PALAKKAD DIST-, PIN - 679503 23 VIJAYAN P.V PALLIVEETIL HOUSE, P.O.MELUR, PALAYAD VIA, THALASSERY , KANNUR DIST., PIN - 670661 24 ANEESH C V KRISHNAPURAM, 20 174B, PERIGALAYI, KANNUR DIST., PIN - 670006 25 SURENDRAN K P NEELANJANAM, 4/121 A, MAMPATTA, POOKOTTUMPADAM, NILAMBUR, MALAPPURAM DIST., PIN - 679332 26 PRADEEPKUMAR A K AMBALAKKATT , 13/78, CHEENICHODE, TIRUR ,MALAPPURAM DIST.-, PIN - 676552 27 SUNILKUMAR K P KADAKKAL PUTHIYAVEEDU, RAMANTHALI, PAYYANNUR , KANNUR DIST.-, PIN - 670308 28 SATHEESH KUMAR N THRIVENI, KOLLAM, KOYILANDY, KOZHIKODE-, PIN - 673307 29 ANAND C CHENDRATHODI 18, KULUKKALLUR, PATTAMBI PALAKKAD DIST., PIN - 679337 30 RAJU A V ACHANVEEDU, KARAPPATHU, XV/217, PILITHODE, HOSDURG, KASARGOD DIST., PIN - 671310 31 SAJEEVAN P PARAMBATH PARAMBATH HOUSE, KUTTAMATH, PONMALAM, HOSDURG, KASARGOD DIST., PIN - 671313 32 PRAVEEN KUMAR PANAPUZHA, POORAKKADAVATH, PANAPUZHA P.O. PAYYANNUR, KANNUR DIST.-, PIN - 670306 33 UNNIKRISHNAN N NADEEPARAMBATH HOUSE, 266,KAIPAMANGALAM, KODUNGALLUR, _**WA.995/2023**_ 4 THRISSUR DIST.-, PIN - 680681 34 RAMACHANDRAN T V PARAMESWARA VILAS,3/106, PALLYAMTHILLENKERI P.O, IRITTY, KANNUR DIST.-, PIN - 670702 35 MINI P A MAYOORAM,25/164, THATTATHARA, THATHAMANGALAM, CHITTUR, PALAKKAD DIST., PIN - 678102 36 MAHESH M 686/1, VARAM, KANNUR , KANNUR -, PIN - 670594 37 SREEKUMAR P PADINJARAYIL HOUSE, 20/225, KARIKKAD, ERNAD, MALAPPURA, DIST.-, PIN - 676123 38 RASITH KUMAR P T VAZHAYIL HOUSE, 14/21, VENDUTTAYI, PINARAYI P.O., THALASSERY, KANNUR DIST., PIN - 670741 39 JAYAPRAKASH P KAYAL KUNNATH, 269, IRINGANNUR POST, VADAKARA, KOZHIKODE DIST.-, PIN - 673505 40 M K VASANTHAKUMARI NADUVILAKKANDIYIL, PUNNASSERY P.O., KOZHIKODE-, PIN - 673585 - 41 G RAM DINESH MANGATTUVARIYAM ,6/115, VILAYIL PARAPPUR, KONDOTTY MALAPPURAM DIST., PIN - 673641 42 PRASAD T THAZHATHETHIL, MUNDAMUKA, OTTAPPALAM, PALAKKAD DIST-, PIN - 679123 43 RANJITH K K PREMAJA NIVAS, THANNADA, CHALA EAST P.O., KANNUR DIST., PIN - 670621 44 HARIDASAN KOLANGARAVEETIL PUTTANVETTIL, 23A ,THODEEKALAM, THALASSERY, KANNUR DIST., PIN - 670650 45 SREEKALA R NHANAGATTIRI BHAGAVATHI TEMPLE, 7/390,NHANAGATTIRI, PATTAMBI, PALAKKAD, PIN - 679303 - 46 UNNIKRISHNAN K V _**WA.995/2023**_ **==> picture [7 x 9] intentionally omitted <==** 552, KURUVELI, PAYYANNUR, KANNUR DIST., PIN - 670307 47 ASOKAN J JALAMANA, 19, CHERPULASSERY, OTTAPPALAM, PALAKKAD, PIN - 679503 48 LATHEESH N V ARANNIL HOUSE, KANNADIPRAMBA, KANNUR DIST., PIN - 670604 49 GOVINDAN C ILLATHODIKA, 306, PANNICODE, KOZHIKODE DIST., PIN - 673602 50 VISWANATHAN P PULIKKOTTE HOUSE, NHANGATTIRI, PATTAMBI, PALAKKAD, PIN - 679303 51 SUDHAKARAN O P VAYOTH, PALLIKKARA MELADY, KOYILANDY KOZHIKODE, PIN - 673522 52 DINESHAN M SREESADANAM, MAMBRAM, THALASSERY , KANNUR DIST., PIN - 670741 BY ADVS. SRI.B.UNNIKRISHNA KAIMAL – Sr. GP MAHESH V RAMAKRISHNAN SRI.V.V.NANDAGOPAL NAMBIAR – SC FOR KDRB SRI.R.LAKSHMI NARAYAN – SC FOR MDB THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29.11.2023, THE COURT ON 13.12.2023 DELIVERED THE FOLLOWING: ## **ANU SIVARAMAN & C.PRATHEEP KUMAR, JJ.** --------------------------------------------------------------------- W.A.995 of 2023 in W.P.(C).6099 of 2021 ------------------------------------------------------- Dated this the 13[th] day of December, 2023 ## **JUDGMENT** ## C.Pratheep Kumar, J. 1. This is an appeal filed under Section 5 of the Kerala High Court Act against the judgment of the learned Single Judge in W.P.(C).6099 of 2021 dismissing the above writ petition. 2. The appellant was working as Melsanthi in Bilathikulam Siva Temple in Kozhikode district. He filed the writ petition challenging the validity of Ext.P13 ranked list published by Kerala Devaswam Recruitment Board for recruitment to the post of Executive Officer Grade-IV by transfer. According to the appellant, he has been working as Melsanthi for the last 27 years and is also M.Com. degree holder. Consequent to Ext.P8 notification dated 18.3.2020 for recruitment to the post of Executive Officer Grade-IV, he also applied and attended the interview. In Ext.P5 judgment, this Court found that there is a guideline to the effect that only those employees who have sufficient capacity and absolute integrity to execute the job of Temple administration efficiently can be considered for the post of Executive Officer. Preference is to be given to those having higher educational qualification and weightage shall be given to those in clerical cadre. According to the appellant, Ext.P13 list was prepared disregarding Ext.P5 judgment in an arbitrary and discriminatory manner. He was given only 20 marks for interview while the other selected candidates were given as much as 35 out of 50. Guidelines issued by the 4[th] _**WA.995/2023**_ 2 respondent were also disregarded while preparing the ranked list. In Ext.P3 Government Order, no interview was contemplated in the selection of Executive Officer. Interview was conducted only for selecting favoured candidates. Respondent No.18/Sajith K. ranked at serial No.14 in Ext.P13, was not at all eligible as he did not have the necessary qualification. It was contended by the learned counsel for the appellant that though notification was issued for selection of nine candidates alone, in total disregard of the notification, more candidates were selected and appointed than the notified vacancies, which is against the settled legal position. However, the learned Single Judge failed to notice the above irregularities while dismissing the writ petition. Therefore, the appellant prayed for setting aside the above impugned judgment of the learned Single Judge and to allow the same. 3. Now the point that arise for consideration is :- Whether there is any illegality or irregularity in the impugned judgment of the learned Single Judge in W.P.(C).6099 of 2021, so as to call for any interference ? 4. Heard both sides. 5. The point : The appellant who has been working as Melsanthi in Bilathikulam Siva Temple was a candidate for the post of Executive Officer Grade-IV under Malabar Devaswom Board. His grievance is that persons having lesser qualification than him, were selected while he was not selected by giving less marks in the interview. One of the contentions raised by the learned counsel for the appellant at the time of argument is that the guidelines issued in Ext.P3 and recognised in Ext.P5 judgment were disregarded by the Selection Committee while preparing Ext.P13 rank list. Therefore, according to the appellant, the entire _**WA.995/2023**_ 3 selection process is vitiated. 6. On the other hand, the learned Senior Government Pleader Sri.B.Unnikrishna Kaimal, learned Standing Counsel Sri.V.V.Nandagopal Nambiar and the learned Standing Counsel Sri.R.Lakshmi Narayan, who appeared for State of Kerala, the Kerala Devaswom Recruitment Board and Malabar Devaswom Board respectively, strongly refuted the claim of the appellant. According to them, the Devaswom Recruitment Act & Rules is binding on the respondents and the guidelines referred to above by the appellant have no relevance in the selection of Executive Officer involved in this case. 7. On an earlier occasion, when the 4[th] respondent/Malabar Devaswom Board had taken steps for appointment of Executive Officer Grade-IV on deputation basis, the appellant approached this Court by filing a writ petition and the same was allowed by this court. Accordingly, the proposal for appointing Executive Officer on deputation basis was stopped. Thereafter, on 13.3.2014, the 3[rd] respondent had issued a notification inviting applications from employees of the Board for appointment by promotion as Executive Officer Grade-IV. The above selection was also challenged by the appellant by filing a Review Petition before the Government. He also filed a writ petition, W.P. (C).No.16709 of 2016, before this Court. As per the directions of this Court in the writ petition, the Government considered the Review Petition and cancelled the selection list. It was thereafter, the Kerala Devaswom Recruitment Board was constituted and the selection of Executive Officers under the Malabar Devaswom Board was transferred to Kerala Devaswom Recruitment Board. 8. One of the main contentions raised by the appellant is that the guidelines _**WA.995/2023**_ 4 issued by the Malabar Devaswom Board which was endorsed by this Court in Ext.P1 judgment and the guidelines issued in Ext.P3 Government Order were not followed in the selection process. According to the appellant, in the above guidelines, conduct of interview is not contemplated and in disregard of the above guidelines, interview was conducted and the selection was made only on the basis of the marks obtained by the candidates in the interview. Therefore, Ext.P13 select list was mainly challenged on the ground that interview was conducted in violation of the mandate in Ext.P1 judgment and Ext.P3 Government Order. 9. According to the learned counsel for the respondents, Kerala Devaswom Recruitment Board is not bound by the above guidelines and they are only bound by the Kerala Devaswom Recruitment Board Act, 2015 (in short, KDRB Act) as well as the Kerala Devaswom Recruitment Board Rules, 2015 (in short, KDRB Rules). Ext.P8 is the notification for the selection of Executive Officers issued by the Kerala Devaswom Recruitment Board and the appellant has not challenged the validity of Ext.P8 notification. In the above circumstances, the authority of the Kerala Devaswom Recruitment Board to conduct the selection process as per the KDRB Act and the Rules framed thereunder could not be challenged by the appellant. ## 10.Section 9(1)(i) of the KDRB Act reads thus : _“notwithstanding anything contained in any other existing Act or Rules or Regulations or orders or judgment or decree in respect of the appointment of candidates to the posts in the Devaswom Board, the Board shall prepare select list for the appointment of candidates to various posts other than the hereditary posts and posts in the aided educational institutions in the Devaswom Board as per the_ _**WA.995/2023**_ 5 _provisions of this Act, Rule and Regulations.”_ 11.From the above provision it can be seen that the Kerala Devaswom Recruitment Board is not bound by Ext.P1 judgment or Ext.P3 guidelines for selection to the post of Executive Officer as per Ext.P8 notification. The above provision gives independence to the Board to invite applications, to conduct written examinations or interview or written examination and interview and prepare select list for selection to various posts and as such, it cannot be held that preparation of Ext.P13 selection list is unsustainable for non-compliance of Exts.P1 and P3. 12.Another contention raised by the learned counsel for the appellant is that the appellant is M.Com degree holder and that he had 27 years of experience and in spite of that, much lesser mark was given to him in interview. According to the learned counsel for the respondents, the post of Executive Officer in a Temple involves management of the entire affairs of the Temple including its administration and as such, it is quite natural that persons having experience in administration and those working in clerical cadre will be preferred than a candidate like the appellant who had experience only as a Priest (Santhi). As per Ext.P8 notification, the qualification for the post of Executive Officer Grade-IV is SSLC pass or equivalent qualification and ten years experience in permanent post under Malabar Devaswom Board. In the notification no weightage is provided to those having higher educational qualification. In the above circumstances, for the mere reason that the appellant is a post-graduate degree holder he cannot claim any preferential right over those having less qualification than him. Similarly, since the appellant has experience only as a Priest (Santhi) he cannot claim proportional weightage for the post of Executive Officer over candidates having experience in administration and those working in clerical cadre. _**WA.995/2023**_ 6 - 13.The learned counsel for the appellant seriously challenged the selection of Mr.Sajith on the ground that on the date of application he did not have the required experience of ten years in any permanent post. To substantiate the said contention he has relied upon Ext.P14 to P18 documents. Ext.P14 is the proceedings of the Commissioner, Malabar Devaswom Board dated 4.7.2018 stating that Mr.Sajith had been working as Vazhipad Clerk in Sree Kelalur Mahavishnu Temple, Thalassery taluk since 16.3.2008 on a monthly salary of Rs.500/-. It further requires creation of the post of Vazhipad clerk in the said Temple and also for filling up the above post. Ext.P15 is the copy of the application given by Sajith for the post of Vazhipad Clerk. Ext.P16 dated 30.7.2018 is the proceedings of the Executive Officer of Sree Kelalur Mahavishnu Ganapathi Temple appointing Mr.Sajith as Vazhipad Clerk of that Temple w.e.f. 10.8.2018. Ext.P17 is the proceedings of the Commissioner of Malabar Devaswom Board ratifying the appointment of Mr.Sajith as Vazhipad Clerk. 14.Ext.P18 is the proceedings of the Commissioner, Malabar Devaswom Board correcting the date 16.3.2018 to 16.3.2008 in Ext.P17 and thereby the appointment of Sajith as Vazhipad Clerk was ratified w.e.f. 16.3.2008. The correction is made on the ground that in Ext.P17, the date 16.3.2018 was mistakenly stated instead of 16.3.2008. Ext.P18 was relied upon by the learned counsel for the appellant to show that it was subsequently created to include Mr.Sajith in the selection list. However, in Ext.P14 itself it is stated that Sajith was working in the Temple as Vazhipad Clerk since 16.3.2008. Therefore, the date 16.3.2018 mentioned in Ext.P16 and P17 can only be a mistake. - 15.In the above circumstances, we do not find any grounds to suspect Ext.P18 proceedings of the Commissioner of Malabar Devaswom _**WA.995/2023**_ 7 Board. Since as per Exts.P17 and P18, service of Mr.Sajith was regularized w.e.f. 14.3.2008 he had ten years permanent service as on the date of Ext.P8 notification and as such, we do not find any merit in the contention of the appellant that Sajith was not qualified as on the date of Ext.P8. 16.At the time of arguments, the learned counsel for the appellant relying upon the decision of the Hon'ble Supreme Court in **Rakhi Ray & Others v. The High Court of Delhi & others, 2010 (0) Supreme (SC) 127 (2010 (1) KLT (SN) 90),** would argue that in this case only nine vacancies were notified but the respondents have posted more than the number of vacancies notified and it is violative of Article 14 and 16 (1) of the Constitution. The above decision relates to selection to the post of District Judges in Delhi judicial service. In the above decision, the Hon'ble Supreme Court held that it is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as “the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution”, of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. - 17.On the other hand, the learned counsel for the respondents would argue that KDRB Rules empowers them to fill up the vacancies reported during the validity of the select list and as such, the above argument raised by the learned counsel for the appellant is unsustainable. - 18.Rule 7 of the KDRB Rules deals with the procedure for conduct of examination. Sub-rule (12) of Rule 7 states that :- - _“The select lists published by the Board shall remain in force for a_ _**WA.995/2023**_ 8 _period of one year from the date on which it was brought in to force provided that the said list will continue to be in force till the publication of a new list after the expiry of the minimum period of one year or till the expiry of three years whichever is earlier.”_ ## 19. Sub-rule (13) states thus : _“The Board shall advise candidates for all the vacancies reported and pending before them and the vacancies which may be reported to them for the period during which the select lists are kept alive in the order of priority, if any and in the order of merit subject to the rules of reservation and rotation, wherever, they are applicable.”_ - 20.Therefore from the above Rules it can be seen that the select list published by the Board shall remain in force for a period of one year or either publication of a new list after one year or till the expiry of three years, which ever is earlier. The Rules also empowers the Board to advice candidates for all the vacancies reported and pending before them and the vacancies which may be reported to them during the validity of the select list. - 21.In this case the appellant has not challenged the validity of Rule 7 referred above and as such, we do not find any merits in the argument advanced by the learned counsel for the appellant that the conduct of the respondents in appointing more candidates than the notified vacancies, is unsustainable. More over, no such contention was taken by the appellant either in the writ petition or in the memorandum of appeal. On that ground also the above argument is not sustainable. - 22.From the above discussions, it can be seen that there is no irregularity or illegality in the judgment under appeal so as to call for any interference in this intra-court appeal under Section 5 of the Kerala High Court Act. Therefore this appeal is liable to be dismissed. The point answered _**WA.995/2023**_ 9 accordingly. In the result, the writ appeal stands dismissed. Sd/- **Anu Sivaraman, Judge** **Sd/-** **C.Pratheep Kumar, Judge** Mrcs/1.12. _**WA.995/2023**_ 10 ## **APPENDIX OF WA 995/2023** RESPONDENT ANNEXURES Annexure TRUE COPY OF THE COUNTER AFFIDAVIT DATED R18(a) 30-06-2022 IN THE WRIT PETITION FILED BY THE PETITIONER. Annexure TRUE COPY OF THE ORDER R18(b) NO.H5/3830/2019/MDB(KDS) DATED 21-01-2010 ISSUED BY THE COMMISSIONER, MALABAR DEVASWOM BOARD Annexure TRUE COPY OF THE ORDER R18(c) NO.A4/2081/2020/MDB(KDS) DATED 27-10-2020 ISSUED BY THE COMMISSIONER MALABAR DEVASWOM BOARD