Vineeth K K v. State of Kerala and others

W.P.(C).Nos.18978/22 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 20[TH] DAY OF JULY 2022 / 29TH ASHADHA, 1944 WP(C) NO. 18978 OF 2022** ## **PETITIONER:** VINEETH K K AGED 33 YEARS AGED 33 YEARS, S/O KRISHNANUNNI K N, KRISHNAKRIPA, NETTOOR P.O., ERNAKULAM , PIN - 682040 BY ADVS. K.R.RAJKUMAR CHRISTY MARIA JAGADEESH LAKSHMAN RAHUL RAJ ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY, EVASWOM DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 THE SECRETARY COCHIN DEVASWOM BOARD, SWARAJ ROUND NOTH,THRISSUR, KERALA, PIN - 680001 3 THE CHIEF COMMISSIONER COCHIN DEVASWOM BOARD, DEVASWOM BOARD OFFICE, SWARAJ ROUND NOTH, THRISSUR, PIN - 680001 W.P.(C).Nos.18978/22 2 4 THE SECRETARY KERALA DEVASWOM RECRUITMENT BOARD, II FLOOR, DEVASWOM BOARD BUILDINGS, M G ROAD, OPP. GOVT. AYURVEDA COLLEGE, THIRUVANANTHAPURAM PIN - 695001 5 SAJITHA N SARANG, 13/286, KUTTOOR P.O., PAMBOOR, THRISSUR PIN - 680013 6 REJILA RAVINDRAN KARYATTUPARAMBIL HOUSE, CHERUVATHERY, CHEVOOR, THRISSUR PIN - 680027 7 SURESH KUMAR T THELAPARAMBIL, V/279, PANANGADU, KODUNGALLORE TALUK, THRISSUR PIN - 680665 8 MANJUSH K S KORASSERY HOUSE, 305, CHENGAMANAD P.O., ALUVA TALUK, ERNAKULAM PIN - 683578 9 JIJU P. R KARAMUCKPATTATH HOUSE, 13/393, KANDASSANKADAVU P.O., THRISSUR PIN - 680613 10 VENUGOPAL V G VENGALLORE ILLOM, IRAMALLOOR, KOTHAMANGALAM TALUK, THRISSUR PIN - 680584 11 SUNITHA K K KONJANGATH HOUSE, 570/1, ERUMAPETTY, KUNNAMKULAM TALUK, THRISSUR PIN - 680584 W.P.(C).Nos.18978/22 3 12 HARISANKAR P V PUTHILLAM, 59 WARD3, PARANNUR, CHOONDAL P.O., THALAPPILLY TALUK, THRISSUR PIN - 680502 13 SANGEETHAKUMAR G KOCHUKOTTARAM, 156,THRICHATTUKULAM, CHERTHALA TALUK, ALAPPUZHA PIN - 688526 BY ADVS. K.P.SUDHEER, SC, COCHIN DEVASWOM BOARD V.V.NANDAGOPAL NAMBIAR P.NANDAKUMAR AMRUTHA SANJEEV ## **OTHER PRESENT:** SUNIL KURIAKOSE-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.07.2022, THE COURT ON 20.07.2022 DELIVERED THE FOLLOWING: W.P.(C).Nos.18978/22 4 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = =** **W.P.(C).No.18978 of 2022** **= = = = = = = = = = = = = = = = Dated this the 20[th] day of July, 2022** ## **JUDGMENT** ## 1.This writ petition is filed seeking the following reliefs:- “(i) to issue a writ of certiorari or any other writ, order or direction calling for the records leading to Exhibit P3 and quash the same to the extent it advises Sixth Respondent whose advice is beyond the scope of in Exhibit P1. (ii)to issue a writ order or direction declaring that the ranked list Exhibit P2 has expired and cancelled after the filling up of four vacancies covered under Exhibit P1. iii)to issue a writ of certiorari or any other writ order or direction calling for the records leading to Exhibit P5 and quash the same as it is beyond the scope of Exhibit P1. iv)to issue a writ of mandamus any other writ order or direction directing the respondents to revoke the appointment of Sixth respondent and all the appointments made in pursuance to Exhibit P5.” 2.Heard the learned counsel for the petitioner, learned Government Pleader, the learned counsel appearing for respondents 2 and 3 and the learned counsel appearing for the 4[th] respondent as well as the learned counsel appearing for respondents 7 to 13. W.P.(C).Nos.18978/22 5 3.This writ petition is filed by a person, who is presently employed as Kazhakam in Pallam Chathannoor temple in Thiruvilwamala Group under the Cochin Devaswom Board. The Devaswom Recruitment Board had invited applications for the post of L.D.Clerks/Junior Devaswom Officer/ Devaswom Assistant on 18.12.2019 by Exhibit P1. It is submitted that the notification was specifically for appointment to the post By transfer from regular temple employees in the temples under the Board. Exhibit P1 specifically stated that the number of vacancies were four and that the list would expire on advice being issued for the four vacancies. It was also stated in Exhibit P1 that only persons, who obtained 40% marks in the Common Objective Test being conducted by the Recruitment Board would be eligible for inclusion in the list. It is submitted that Common Objective Test for appointment By transfer and by direct recruitment was conducted on 5.12.2021. Thereafter, Exhibit P2 select list was published on 11.04.2022 containing the names of 11 persons. It is contended that respondents 11 to 13, whose names are included in the select list did not have W.P.(C).Nos.18978/22 6 40% marks in the objective tests, but they had also been included in the list. It is submitted that appointments were made from Exhibit P2 select list as evident from Exhibit P3 and the date of last advice was 30.4.2022. Four advices were made from Exhibit P2 select list. After advising the four persons from Exhibit P2 list, further advice were sought to be made from the list, which prompted the filing of this writ petition. It is submitted that the petitioner is a permanent temple employee who has completed probation and if the bytransfer appointment are notified now, he would have a right to submit an application for appointment By transfer and that his rights are being defeated by the illegal act of the respondents in making advices from a list which was prepared specifically for filling up only a four reported vacancies. 4.A statement has been filed by the 4[th] respondent the Kerala Devaswom Recruitment Board. It is stated therein that the Cochin Devaswom Board had reported 30 vacancies for the post of LDC/Junior Devaswom Officer/Devaswom Assistant by W.P.(C).Nos.18978/22 7 direct recruitment and four vacancies By-transfer. Accordingly, the Recruitment Board notified the posts for direct recruitment and By transfer on 18.12.2019 as Category No.3/19 and 4/19 respectively. It is further submitted that a common OMR test was conducted on 5.12.2021 and a list of candidates who had secured 40% marks was published on 26.6.2022. 19 candidates were included in the Probability list in the By transfer category. Exhibit P2 list was published on 11.4.2022 containing the names of 11 persons found eligible. It is submitted at paragraph 5 as follows:- “5. The allegation of the petitioner that candidates who have secured below 40% of marks included in the Rank List for By transfer is not true to facts. Though the OMR test was for 100 marks, 5 questions were deleted and the valuation was made for 95 marks. Therefore the maximum mark is treated as 95 and those who have secured 40% marks of 95, ie. 38 marks and above are included in the Rank List. Though it is specified in the notification that four vacancies notified alone will be advised and the Rank List will be cancelled on advising the four vacancies notified. As decided by the Cochin Devaswom Board, Kerala Devaswom Recruitment Board amended the notified condition to the extent that the Rank List will be in force till the vacancies notified for By transfer recruitment are advised or till the Rank List for the post for W.P.(C).Nos.18978/22 8 Direct Recruitment (Category No. 3 /2019-Rank List No. 2/22) is ceased to be in force whichever is later. This decision is taken as required by Cochin Devaswom Board.” 5.On further directions by this Court, a detailed statement has also been placed on record, stating that as per sub rule (13) of Rule 7 of the Kerala Devaswom Recruitment Board Rules, the Board is to advice candidates for all vacancies reported and pending before it and the vacancies which may be reported to it during the period of validity of the list. Relying on Rules 7(12) and 7(13) of the Kerala Devaswom Recruitment Board Rules, it is contended that the statement in Exhibit P1 notification that the list being prepared by the Board under the By transfer category is only for the four notified vacancies and that the list would expire on advice being made to the said vacancies was a mistake which occurred with the Board at the time of notification. It is submitted that the Board had noticed the error and had specifically provided in Exhibit P2 that the list would operate till all vacancies are advised or till the list prepared for direct recruitment expires, whichever is later. It is further submitted that the Cochin Devaswom Board had duly W.P.(C).Nos.18978/22 9 reported the existence of seven more vacancies on 21.5.2022 and that appointments are liable to be made from the list. - 6.A reply affidavit has also been placed on record. It is contended on the basis of Exhibit P11 reply to a query under the RTI Act that there are no vacancies in the By transfer category available for reporting to the Recruitment Board and that therefore the appointment is illegal. - 7.A detailed counter affidavit has been placed on record on respondents 7 to 13 as well. It is contended therein that the petitioner has no _locus standi_ to challenge the appointments made from Exhibit P2 ranked list, since he is a stranger to the entire selection process. It is stated that clause 6 of Note 1 of the notification for direct recruitment issued on the same date specifically provided that the list would be in force for three years. It is submitted that since the rules specify that the list prepared is to be in force for three years and that all vacancies arising during the validity of the list are to be reported to the Board and advice is to be made from the list, W.P.(C).Nos.18978/22 10 the contention of the petitioner is completely untenable. It is further submitted that all the persons included in the list had the minimum cut off marks of 40%, since five questions were deleted after publishing of the answer key and the 40% has to be operated against 95 marks, that is, persons having 38 marks in the objective test were entitled and eligible to be included in the list, which has been duly done. - 8.A reply affidavit has been placed on record by the petitioner in the counter affidavit filed on behalf of respondents 7 to 13. - 9.The learned counsel for the petitioner places reliance on decisions reported by the Apex Court in **Mukul Saikia and others v. State of Assam and others** [2009 KHC 4051] in support of the contention that the persons included in a select list in excess of the advertised posts have no right for appointment to vacancies in excess of those specifically notified. The decision of the Apex Court **Zonal Manager, Bank of India, Kochi and others v. Aarya K.Babu and another** [2019 KHC 6778] is also relied on to contend that W.P.(C).Nos.18978/22 11 the eligibility of candidates stated in the notification are sacrosanct and there can be no change during the selection process. The decision in **State of Orissa and another v. Rajkishore Nanda and others** [2010 KHC 4401] is also relied on to contend that the select list cannot be treated as a perpetual reservoir for purpose of appointments and can relate only to notified vacancies. 10.I have considered the contentions advanced. Section 9 of the Kerala Devaswom Recruitment Board Act, 2015 empowers the Board constituted under the Act to conduct selections and prepare select lists for appointments to various posts in the Devaswom Boards except to the exempted category of posts. Section 9(6) provides that it shall be the duty of the Board to furnish the select list to the Devaswom Board and advice the candidates in the manner as may be prescribed. The prescription is contained in the Rules. Rule 2(1) (a) of the Kerala Devaswom Recruitment Board Rules, 2015 defines “advice list” as follows:- “advice list” means list of candidates drawn from the select list and arranged on the basis of the rules of recruitment relating to the W.P.(C).Nos.18978/22 12 ## post in respect of the vacancies reported from time to time. ## Rule 2(1)(h) defines select list as under:- “select list means list of candidates arranged in the order of merit, either on the basis of the interview or examination or by both. ## Provisions of the Rules 7(12) and 7(13) read as under:- “12) The select lists published by the Board shall remain in force for a period of one year from the date on which it was brought into 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: Provided that the Board may take steps for the preparation of a new Select list wherever necessary even before the expiry of the period of one year of the select list, by inviting applications but that the select list prepared in pursuance of the said notification shall be brought into force only after the expiry of the period of one year of the existing select list: Provided further that a select list from which no candidate is advised during the period of one year from the date on which it was brought into force shall be kept in force till the expiry of three years from the said date and in a case where no candidate is advised from the select list till the expiry of the said period of three years, the duration of the select list shall be extended by the Board for a further period of one year or till at least one candidate is advised from the list whichever is earlier. W.P.(C).Nos.18978/22 13 (13) 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.” 11.The rules provide that the Board shall announce the number of vacancies to be filled up from among the candidates for the examination and where the exact number of vacancies to be filled up is not ascertainable, the Board will either announce the approximate number of vacancies to be filled up or state that the number of vacancies has not been estimated. The validity of the select list is as provided in sub rule (12) and sub rule (13). Therefore, the statutory provision specifically is that the validity of a select list will be as provided in the Rules and that all vacancies arising during the validity of the list are liable to be reported to the Board and advice to be made from the list. 12.In view of the specific contention raised by the Recruitment Board that the statement in Exhibit P1 that the list is W.P.(C).Nos.18978/22 14 prepared only for four vacancies was an evident mistake and that the Board would not have the right or the power to issue a notification which is at variance to the specific statutory provisions providing for the validity of a select list, the contention that the select list expires on advice being made to the four notified vacancies cannot be countenanced. In Exhibit P2 also, an attempt was made to correct the error by stating that the list would be in force till the reported vacancies are advised or till the list prepared for direct recruitment expires, whichever is later. In the light of the statutory provisions and the prescription in the Rules, the contentions raised by the petitioner cannot be accepted. The petitioner, who only aspires to participate in a selection which may be conducted if Exhibit P1 list is limited to 4 vacancies alone cannot raise these contentions as against the validity of the list which is statutorily prescribed. The decisions relied on by the learned counsel for the petitioner have no application to the facts of the instant case where there is a statutorily prescribed period of validity for the select list. 15 W.P.(C).Nos.18978/22 In the result the writ petition fails and is accordingly dismissed. **==> picture [25 x 13] intentionally omitted <==** **Anu Sivaraman, Judge** sj W.P.(C).Nos.18978/22 16 ## **APPENDIX OF WP(C) 18978/2022** PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE ADVERTISEMENT ISSUED BY THE 4TH RESPONDENT FOR THE POST OF LD CLERK/ JUNIOR DEVASWOM OFFICER/ DEVASWOM ASSISTANT AS CATEGORY NO.04/2019 DATED 18-12-2019 Exhibit P2 THE TRUE COPY COPY OF THE RANK LIST PUBLISHED BY THE 4TH RESPONDENT DATED 11.04.2022 Exhibit P3 THE TRUE COPY OF THE THE APPOINTMENT CHART ISSUED BY THE 4TH RESPONDENT AS NO. 142/R1/2021/KDRB FOR THE CATEGORY NO. 04/2019 AND THE ADVICE ISSUED ON 13-04-2022 Exhibit P4 A TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 04.06.2022 THOUGH E AMIL Exhibit P5 THE TRUE COPY OF THE APPOINTMENT CHART DATED 01.06.2022 PUBLISHED BY THE 4TH RESPONDENT RESPONDENT EXHIBITS Exhibit R7 A TRUE COPY OF NOTFICATION DATED 18.12.2019 ISSUED BY THE 4TH RESPONDENT Exhibit R7 B TRUE COPY OF NOTIFICATION DATED 18.12.2019 ISSUED BY THE 4TH RESPONDENT Exhibit R7 C TRUE COPY OF FINAL ANSWER KEY FOR THE POST OF L.D.CLERK PUBLISHED BY THE 4TH RESPONDENT W.P.(C).Nos.18978/22 17 PETITIONER EXHIBITS Exhibit P6 A true copy of the Ranked list No. 02/2022 for the category No. 03/2019 dated 11-04-2022 - Exhibit P7 A true copy of the letter No. P/L No. 2/2021 issued by the Respondent No. 4 dated 08-02-2021 - Exhibit P8 A true copy of the Notification No. M.8050/19 issued by the 3rd respondent dated 28-06-2022 - Exhibit P9 A true copy of the Order dated 04.02.2020 in RP No. 919 of 2018 in WP No. 22736 of 2017 Exhibit P6 A true copy of the Ranked list No. 02/2022 for the category No. 03/2019 dated 11-04-2022 Exhibit P7 - A true copy of the letter No. P/L No. 2/2021 issued by the Respondent No. 4 dated 08-02-2021 - Exhibit P8 A true copy of the Notification No. M.8050/19 issued by the 3rd respondent dated 28-06-2022 - Exhibit P9 A true copy of the Order dated 04.02.2020 in RP No. 919 of 2018 in WP No. 22736 of 2017 Exhibit P10 TRUE COPY OF THE INFORMATION SOUGHT BY ONE ABHIRAJ SOMAN ON 11/10/2021 TO THE SPIOB, CDB THRISSUR 18 W.P.(C).Nos.18978/22 Exhibit P11 TRUE COPY OF THE ANSWER GIVEN FROM THE OFFICE OF THE STATE PUBLIC INFORMATION OFFICER AND DEPUTY COMMISSIONER DATED 15/11/2021 RESPONDENT EXHIBITS Exhibit R4(A) TRUE COPY OF THE REQUEST DATED 21/05/2022 Exhibit R4(B) TRUE COPY OF THE PREFORMA DATED 26/05/2022 True copy PS to Judge