Vineeth K K v. State of Kerala & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA MONDAY, THE 30[TH] DAY OF OCTOBER 2023 / 8TH KARTHIKA, 1945** **WA NO. 1135 OF 2022 AGAINST JUDGMENT DATED 20.07.2022 IN WP(C) NO.18978/2022 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER IN WP(C):** VINEETH K K, AGED 33 YEARS, S/O.KRISHNANUNNI K.N., KRISHNAKRIPA, NETTOOR P.O., ERNAKULAM, PIN – 682 040. BY ADVS. K.R.RAJKUMAR JAGADEESH LAKSHMAN RAHUL RAJ ## **RESPONDENTS/RESPONDENTS IN WP(C):** 1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY, DEVASWOM DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001. 2 THE SECRETARY, COCHIN DEVASWOM BOARD, SWARAJ ROUND NORTH, THRISSUR, KERALA, PIN – 680 001. 3 THE CHIEF COMMISSIONER, COCHIN DEVASWOM BOARD, DEVASWOM BOARD OFFICE, SWARAJ ROUND NORTH, THRISSUR, KERALA, PIN – 680 001. 4 THE SECRETARY, KERALA DEVASWOM RECRUITMENT BOARD, II FLOOR, DEVASWOM BOARD BUILDINGS, M G ROAD, OPP. GOVT. AYURVEDA COLLEGE, THIRUVANANTHAPURAM, PIN – 695 001. 5 SAJITHA N., SARANG, 13/286, KUTTOOR P.O., PAMBOOR, THRISSUR, PIN – 680 013. 6 REJILA RAVINDRAN, KARYATTUPARAMBIL HOUSE, CHERUVATHERY, CHEVOOR, THRISSUR, PIN – 680 027. W.A.No.1135 of 2022 2 - 7 SURESH KUMAR T., THELAPARAMBIL, V/279, PANANGADU, KODUNGALLORE TALUK, THRISSUR, PIN – 680 665. - 8 MANJUSH K S, KORASSERY HOUSE, 305, CHENGAMANAD P.O., ALUVA TALUK, ERNAKULAM, PIN – 683 578. - 9 JIJU P. R. KARAMUCKPATTATH HOUSE, 13/393, KANDASSANKADAVU P.O., THRISSUR, PIN – 680 613. - 10 VENUGOPAL V G, VENGALLORE ILLOM, IRAMALLOOR, KOTHAMANGALAM TALUK, THRISSUR, PIN – 680 584. - 11 SUNITHA K K, KONJANGATH HOUSE, 570/1, ERUMAPETTY, KUNNAMKULAM TALUK, THRISSUR, PIN – 680 584. - 12 HARISANKAR P V PUTHILLAM, 59 WARD3, PARANNUR, CHOONDAL P.O., THALAPPILLY TALUK, THRISSUR, PIN – 680 502. - 13 SANGEETHAKUMAR G, KOCHUKOTTARAM, 156, THRICHATTUKULAM, CHERTHALA TALUK, ALAPPUZHA, PIN – 688 526. BY ADVS. SR GP SRI JUSTIN JACOB Nandakumar P K.P.SUDHEER, SC, COCHIN DEVASWOM BOARD SHRI.V.V.NANDAGOPAL NAMBIAR, SC, KERALA DEVASWOM RECRUITMENT BOARD AMRUTHA SANJEEV(K/001000/2016) VIVEK VIJAYAKUMAR(K/1018/2016) ## **THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON** **30.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No.1135 of 2022 3 ## **AMIT RAWAL & C.S.SUDHA, JJ.** ## **-------------------------------------------------------** ## **W.A.No.1135 of 2022** **---------------------------------------------------Dated this the 30[th] day of October, 2023** ## **J U D G M E N T** ## **Amit Rawal, J.** 1. This is a classic case where the writ petitioner/appellant, who had applied for appointment as LD Clerk/Junior Devaswom Officer/Devaswom Assistant in the office of the Devaswom as per Ext.P3 advice memo, has challenged the action of the Devaswom Board on the premise that despite the number of four posts being advised, the respondents are appointing persons continuously without causing any fresh notification. The afore-mentioned grievance of the petitioner did not find any force by the learned single Bench. It is in that background, this writ appeal has been filed. 2. The facts leading to the filing of writ petition in brief are, that Devaswom Board vide Ext.P1 resolution dated 18/01/2020 decided to fill up the four posts and vide Ext.P3 issued a date of advice limited upto 13/04/2022. In pursuance of the aforementioned exercise certain W.A.No.1135 of 2022 4 candidates submitted application and after undergoing the rigmarole of selection and the procedure, were appointed. The contention is that the respondents without taking a fresh call, resolution or issuing any advice, have appointed more persons. 3. Respondent Devaswom Recruitment Board filed a statement and refuted the allegation that there were no such deviation, nor any appointments were made. 4. Learned counsel appearing on behalf of the appellant submitted that the learned single Bench though had referred to Rule 2(1)(a) of the Kerala Devaswom Recruitment Board Rules, 2015 defining the advice list where it is evident that the validity of the rank list would be maximum for a period of three years, did not notice the fact that there were unabated appointments. 5. The legal right of the appellant and the private respondents derive from the same source, that is violation of fundamental rights enshrined under Article 21 of the Constitution of India. If the said process is permitted to continue, it will drop-off the opportunities of the career profession and as well as of the petitioner who was an aspirant W.A.No.1135 of 2022 5 for being appointed, thus, for all intends and purposes, the petitioner has been deprived of zone of consideration much less the application. It was clearly mentioned that the candidates who had obtained 40% of marks would not be considered for appointment. Respondents had indulged into total bungling and deviated from the recruitment rules and there was some overt act. All these factors if read cumulatively would have definitely resulted into succession of the writ petition, but in the absence of such discussion, the judgment of the single Bench is liable to be set aside. 6. On the other side, the learned counsel appearing on behalf of the respondent Devaswom Board submitted that in the first advice issued, the petitioner did not apply. The petitioner cannot be permitted to espouse the grievances since in a service matter, public interest cannot be espoused. The petitioner has also not placed on record any qualification much less no fresh appointment or resolution/order to prima facie establish the alleged apprehension and violation at the behest of the respondents and prayed that the order of the single Bench be upheld and dismiss the appeal by imposing exemplary cost. W.A.No.1135 of 2022 6 7. Learned counsel for the selected candidates submits that though the recruitment rules envisage the validity of the rank list for three years, but the advice did not mention so which was clarified by corrigendum. 8. We have heard the learned counsel for the parties and appraised the paper book. 9. The case of the Cochin Devaswom Board was that it had reported 30 vacancies for the post of LDC/Junior Devaswom Officer/Devaswom Assistant by direct recruitment and four(4) bytransfer. 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. A common OMR test was conducted on 05/12/2021. The list of the candidates who secured 40% marks was published on 26/06/2022. 19 candidates were included in the probability list in ' **bytransfer category** '. Ext.P2 list was published on 11/04/2022 containing the name of 11 persons who were found eligible. Sub-rule 12 of Rule 7 of the Kerala Devaswom Recruitment Board Rules extracted by the learned single Judge provides that the select list W.A.No.1135 of 2022 7 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 would continue to be in force till the publication of new list after the expiry of minimum period of one year or **till the expiry of three years whichever is earlier** . Rule also provides that the Board shall announce the number of vacancies to be filled up among the candidates for examination where the exact number of vacancies to be filled up is not ascertainable. In the instant case, the Board had reported existence of seven (7) more vacancies, that is by-transfer, on 21/05/2022. The appointment of-course was made from the list strictly as per sub-rule 12 of Rule 7 as the validity of the rank-list had not expired. The contention that the notification did not mention the validity of the rank-list, would definitely have taken away the right of consideration of an aspirant as the respondent Board was required to issue a fresh notification and advice does not merit any acceptance for, Rule will prevail even if the advertisement is contrary to the Rules. This is precisely what has been noticed by the single Judge. A person who has not submitted an application cannot be permitted to indulge into adventurism like in W.A.No.1135 of 2022 8 present case and held all the selected candidates or the recruitment bodies for ransom and at the best it can be said to be an exercise espousing the right of the affected persons which is not sustainable in view of the _ratio decidendi_ culled out in the judgment reported in **Madan Lal v. High Court of Jammu & Kashmir & Others, 2014 (15) SCC 308,** cited by the respondent. We do not find any illegality and perversity in the judgment of the single Bench. In the result, the appeal stands dismissed. **Sd/AMIT RAWAL JUDGE** **Sd/-** **C.S.SUDHA JUDGE** ak