## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI**
## **FRIDAY, THE 20TH DAY OF JUNE 2014/30TH JYAISHTA, 1936**
## **WP(C).No. 25351 of 2012 (T)**
## **---------------------------------------**
## **PETITIONER :**
**---------------------**
**VYSHAK.C, AGED 29 YEARS, S/O.CHANDRAMOHANAN NAIR, RESIDING AT BHARATHI KESAVAM, MUTTOM (PO), HARIPPAD.**
**BY ADVS.SRI.M.V.THAMBAN**
- **SRI.R.REJI**
**SMT.THARA THAMBAN SRI.B.BIPIN**
**RESPONDENTS :**
- **-------------------------**
**1. TRAVANCORE DEVASOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM, PIN - 695 001, REPRESENTED BY ITS SECRETARY.**
**2. THE SECRETARY, TRAVANCORE DEVASOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM, PIN - 695 001.**
**3. THE DEVASOM COMMISSIONER, OFFICE OF THE DEVASOM COMMISSIONER, THIRUVANANTHAPURAM, PIN - 695 001.**
**4. THE DEPUTY COMMISSIONER (ADMINISTRATION), OFFICER OF THE DEVASOM COMMISSION, THIRUVANANTHAPURAM, PIN - 695 001.**
**5. THE SUB GROUP OFFICER, TRAVANCORE DEVASOM BOARD, KANDIYOOR, MAVELIKKARA, ALAPPUZHA DISTRICT, PIN - 690 101.**
- **BY ADV. SRI.D.SREEKUMAR, S.C**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-05-2014, THE COURT ON 20-06-2014 DELIVERED THE FOLLOWING:**
Msd.
## **WP(C).No. 25351 of 2012 (T)**
## **APPENDIX**
## **PETITIONER(S)' EXHIBITS:**
**--------------------------------------**
**EXHIBIT P1 : TRUE COPY OF THE CIRCULAR ISSUED BY THE 3RD RESPONDENT DATED 08.05.2012.**
- **EXHIBIT P2 : TRUE COPY OF THE REPRESENTATION DATED 09.05.2012.**
- **EXHIBIT P3 : TRUE COPY OF THE LETTER ISSUED BY THE 4TH RESPONDENT DATED 10.05.2012.**
- **EXHIBIT P4 : TRUE COPY OF THE EXTRACT OF THE BOARD'S ORDER BEARING ROC NO.2000/2011/ESTT DATED 01.07.2011.**
- **EXHIBIT P5 : TRUE COPY OF THE JUDGMENT DATED 31.07.2012 IN W.P.(C)NO. 17957/2012.**
**EXHIBIT P6 : TRUE COPY OF THE ORDER NO.ROC.NO.15519/2012/ESST. DATED 12.10.2012.**
**EXHIBIT P7 : TRUE COPY OF THE PROCEEDINGS OF THE DEVASOM BOARD DATED 05.06.2012.**
- **EXHIBIT P8 : TRUE COPY OF THE ORDER NO.ROC NO.205/05/MISC DATED 21.05.2012 ISSUED BY THE DEVASWOM COMMISSIONER.**
- **EXHIBIT P9 : TRUE COPY OF THE LETTER NO.R.O.C.NO.9698/11/EST - 4 DATED 31.07.2012 ISSUED BY THE SECRETARY.**
## **RESPONDENT(S)' ANNEXURES:**
**ANNEXURE R1(A) : TRUE COPY OF THE ORDER ROC NO.10080/2000/ESTT.IV DATED 12.10.2012 ISSUED BY THE DEVASWOM BOARD.**
**//TRUE COPY//**
## **P.S.TO JUDGE.**
Msd.
## **A.V.RAMAKRISHNA PILLAI, J**
--------------------------------------------W.P.(C) No.25351 of 2012 --------------------------------------------Dated this the 20[th] day of June, 2014
##
Ext.P6 order issued by the third respondent by which the petitioner's claim for being appointed as Lower Division Clerk was rejected, is under challenge in this writ petition.
2. The petitioner was appointed Watcher with effect from 4.2.2004 under dying in harness scheme. Though he had originally given option for the post of Lower Division Clerk/Sub Group Officer, due to delay in getting appointment in the aforesaid category he gave option to be appointed as Watcher and thus he got appointment in that category.
3. Later, as per Ext.P1 circular dated 8.5.2012, the respondent Board invited applications from the eligible candidates who were appointed under the
dying in harness scheme and have already submitted their option to the post of L.D.Clerk/Sub Group Officer. Accordingly, the petitioner filed Ext.P2 representation dated 9.5.2012.
4. As the request of the petitioner was not considered, he approached this Court with a writ petition and as per Ext.P5 judgment, this Court directed the third respondent to consider the representation within a time frame. Consequently, the third respondent issued Ext.P6 order dated 12.10.2012 rejecting the claim of the petitioner on the ground that at the time when the petitioner got appointment under the dying in harness scheme, he executed an undertaking to the effect that he would not raise any claim to the post of L.D.Clerk and that he has been removed from the rank list of Lower Division Clerks. According to the petitioner, Ext.P6 is unsustainable and according to him, similarly placed candidates who got appointment under the dying in harness scheme were given promotion as
L.D.Clerk despite the fact that they have executed undertaking similar to that of those executed by the petitioner. It is with this background, the petitioner has come up before this Court.
5. In the counter affidavit filed by the respondents, they admitted that the petitioner's name was included in the list of the candidates eligible for being appointed as L.D.Clerks under the dying in harness scheme. Since it would result in long delay in obtaining appointment, the petitioner relinquished his claim and obtained appointment as Watcher as early as on 3.1.2004. In the declaration he categorically stated that he would not urge any claim for Lower Division Clerk's appointment in future. Therefore, according to the respondents, by the time of relinquishment, the petitioner cannot have any valid claim for change of appointment. In support of their contention, they have produced Ext.R1(a).
6. Arguments have been heard.
7. According to the petitioner, he is now eligible to be appointed to the post of LDC/Sub Group Officer. The petitioner was appointed under the dying in harness scheme along with 17 other persons under the very same scheme.
8. The petitioner alleges that while all other incumbents were granted promotions, the petitioner alone was discriminated.
9. In response to the argument, the learned counsel for the respondent Board would submit that only the incumbents who were working for a period of two years as Peons were considered for promotion. However, the learned counsel for the petitioner would submit that this was violated in the case of Smt.V.Usha Kumari who worked as Peon for 14 years and she was at the bottom of the combined seniority list of last grade employees.
10. In the counter affidavit, the respondents would submit that such action by the previous Board can be either a concession or a mistake and
the same cannot be perpetuated against the rules.
11. The learned counsel for the petitioner would submit that there cannot be any permanent relinquishment for a promotion post.
12. In support of the argument, the learned counsel for the petitioner invited my attention to a decision of this Court in _**George**_ v _**State of Kerala**_ (1998(2) KLT 637) wherein it was held that earlier relinquishment cannot be used on each and every occasion when a promotion vacancy arises. But the aforesaid decision cannot be made applicable to this case.
13. Here, the petitioner seeks for a category change. Formerly his option was for LDC/Sub Group Officer. It is evident from Ext.R1(a) that the petitioner did not seek that option as it would result in long delay in obtaining employment. So, he relinquished his claim for the aforesaid post and obtained appointment as Watcher on 3.1.2004. Having done so, the petitioner cannot now turn
round and say that he is eligible for promotion as L.D.Clerk.
On a consideration of the entire materials now placed on board, this Court is of the definite view that the petitioner is entitled to succeed. Therefore, this writ petition is dismissed. No costs.
**SD/-A.V.RAMAKRISHNA PILLAI JUDGE**
css/ TRUE COPY
p.s.to judge
The first sentence in the concluding paragraph of the judgment dated 20.6.2014 in WPC No.25351/2012 is corrected and substituted as “On a consideration of the entire materials now placed on board, this Court is of the definite view that the petitioner is not entitled to succeed vide order dated 18.7.2014 in WPC No.25351 of 2012.
sd/-Registrar (Judicial)
## **A.V.RAMAKRISHNA PILLAI, J**
--------------------------------------------W.P.(C) No.25351 of 2012
--------------------------------------------Dated this the 18[th] day of July, 2014
##
It is brought to my notice that a clerical mistake had occurred in the judgment in WPC No.25351 of 2012 by which the writ petition was dismissed. It is noted that the first sentence of the concluding paragraph ends with the words 'the petitioner is entitled to succeed'. What is intended is that 'the petitioner is not entitled to succeed'. As it is a clerical mistake, the same requires correction.
The Registry shall correct the first sentence in the concluding paragraph of the judgment as under:
“On a consideration of the entire materials now placed on board, this Court is of the definite view that the petitioner is not entitled to succeed.”
Incorporate the correction in the judgment and serve copy of the corrected judgment to both sides.
## **A.V.RAMAKRISHNA PILLAI JUDGE**
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