WA.No.1107 of 2018 & W.P.(C) No.25819 of 2018

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 21ST DAY OF MAY 2019 / 31ST VAISAKHA, 1941** ## **WA.No. 1107 of 2018** **JUDGMENT IN WPC 25821/2017 of HIGH COURT OF KERALA DATED 10-04-2018** ## **APPELLANTS/PETITIONERS:** - **1 K.V. GOKULANANDAN KOTTILA HOUSE, CHERUTHAZHAM, NEAR HANUMARAM TEMPLE, MANDOOR PO, KANNUR DISTRICT-670501.** - **2 RAJAN K.V,KUNNARATH HOUSE, THERU ROAD, PAYYANNUR-670307. 3 GIRIDHARAN, CHANDRAKRISHNA, KARUPPATH PARAMBA, RAMANATTUKARA, CALICUT-673633.** - **4 K.P VIJAYARAGHAVAN, KUNNUMPARAMBATH HOUSE, ILLATH THAZHAM, THIRUVANGAD PO, THALASSERY-670103.** - **5 BHARATI T.V HARISREE, NR.KADAVU, MUZHUPPILANGAD PO, KANNUR-670662.** - **6 SAJEEVAN P.K KANATHIL HOUSE, ELAVALLI PO, THRISSUR DISTRICT-680511. BY ADVS. SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA, REP.BY ITS SECRETARY, REVENUE(DEVASWOM) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 MALABAR DEVASWOM BOARD, HOUSE FED BUILDING, ERANHIPALAM PO, KOZHIKODE-673006, REP. BY ITS PRESIDENT.** - **3 THE COMMISSIONER MALABAR DEVASWOM BOARD, HOUSE FED BUILDING, ERANHIPALAM PO, KOZHIKODE-673006, REP.BY ITS PRESIDENT.** - **4 VALSAN KUNJOLLATHIATH, HOUSE NO.1/3841-A, NR.GAS GODWON, BILATHIKULAM, ERANHIPALAM PO, KOZHIKODE-673006.** **BY ADVS. SMT.CHANDINI G.NAIR SRI.C.S.GOPALAKRISHNAN NAIR** ## **OTHER PRESENT:** **SMT P.K RADHIKA- SC FOR MALABAR DEVASWAM BOARD.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15.2.2019, ALONG WITH WP(C).25819/2018, THE COURT ON 21.5.2019 PASSED THE FOLLOWING:** W.A.No.1107 of 2018 & W.P.(C) No.25819 of 2018 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 21ST DAY OF MAY 2019 / 31ST VAISAKHA, 1941** ## **WP(C).No. 25819 of 2018** ## **PETITIONER/S:** **PRASANNAKUMAR.K.P** **AGED 53 YEARS, S/O. LATE VISWANATHAN NAIR,VAZHIPADU CLERK, SREE MAHADEVA MANGALAM DEVASWOM, PARUTHIPRA, SHORNUR, PALAKKAD DISTRICT-679121.** **BY ADVS. SRI.M.RAMESH CHANDER (SR.) SMT.K.A.SANJEETHA SRI.BALU TOM** ## **RESPONDENT/S:** **1 STATE OF KERALA REP. BY ITS SECRETARY, REVENUE (DEVASWOM)DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 MALABAR DEVASWOM BOARD HOUSE FED BUILDING, ERANHIPALAM P.O., KOZHIKODE -673006 REP. BY ITS PRESIDENT. 3 THE COMMISSIONER MALABAR DEVASWOM BOARD, HOUSE FED BUILDING, ERANHIPALAM P.O., KOZHIKODE -673 006. 4 VALSAN KUNJOLTHILLATH HOSUE NO. 1/3841-A, NR. GAS GODOWN, BILATHIKULAM, ERANHIPALAM P.O., KOZHIKODE -673 006. BY ADV. SMT.P.K.RADHIKA, SC, MALABAR DEVASWOM BOARD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.2.2019, ALONG WITH WA.1107/2018, THE COURT ON 21.05.2019, DELIVERED THE FOLLOWING:** 3 W.A.No.1107 of 2018 & W.P.(C) No.25819 of 2018 ## **JUDGMENT** ## **V.G.ARUN, J.** The petitioners in W.P.(C) No.25821 of 2017 are the appellants in W.A.No.1107 of 2018. W.P.(C) No.25821 of 2017 was filed seeking to quash Ext.P7 Government order and for the issue of a writ of mandamus directing respondents 2 and 3 to make appointment to the post of Executive Officer Grade-IV from Ext.P2 merit list, within a time frame. The writ petition was dismissed by the impugned judgment, against which this writ appeal is filed. 2. W.P.(C) No.25819 of 2018 is filed subsequent to the judgment in W.P.(C) No.25821 of 2017 and during the pendency of W.A.No.1107 of 2018. The challenge in W.P.(C) No.25819 of 2018 is against the very same Government order, which was the subject matter of the challenge in W.P.(C) 4 W.A.No.1107 of 2018 & W.P.(C) No.25819 of 2018 No.25821 of 2017. This fact was brought to the notice of the learned Single Judge and thereupon, W.P.(C) No.25819 of 2018 was directed to be posted along with the writ appeal. Accordingly, the matters were considered together and are being decided under this common judgment. The parties and exhibits are described herein, as per their status and description in W.P.(C) No.25821 of 2017. 3. The Malabar Devaswom Board had, vide Ext.P1 notification dated 13.3.2014, invited applications from the employees of the temples under its administration, for appointment by promotion as Executive Officers Grade IV. The essential qualification for appointment, as per Ext.P1 notification, is S.S.L.C and ten years service as a temple employee, as on 1.1.2014. Pursuant to Ext.P1 notification, the petitioners had submitted applications and were called for W.A.No.1107 of 2018 & W.P.(C) No.25819 of 2018 5 interview by an Interview Board consisting of four persons, viz, the President, Commissioner, Deputy Commissioner and a Member of the Malabar Devaswom Board. After interview, Ext.P2 merit list was published, which contained the names of the petitioners. The fourth respondent had also participated in the selection process conducted pursuant to Ext.P1 notification. But, the fourth respondent's name was not included in Ext.P2 merit list and thereupon, he submitted Ext.P3 representation before the first respondent alleging that, in spite of the fourth respondent being a Post Graduate in Commerce and having continuous service with the Malabar Devaswom Board for the last 20 years, his name was excluded from the merit list, whereas the names of persons with much lesser qualification and without the requisite service were included in the merit list. Alleging that his representation 6 W.A.No.1107 of 2018 & W.P.(C) No.25819 of 2018 was not being considered by the Government, the fourth respondent filed W.P.(C) No.16709 of 2016. Meanwhile, other writ petitions had also been filed by persons similarly situated as the fourth respondent, challenging the selection process and the merit list. W.P.(C) No.16709 of 2016 filed by the fourth respondent and similar cases filed by other disgruntled candidates were disposed of under Ext.P4 judgment directing the representation filed by the fourth respondent to be considered, after giving notice to the persons included in the merit list. It was also directed that appointments to the post of Executive Officer under the Malabar Devaswom Board shall be made only after disposing the representation filed by the fourth respondent. Even though the petitioners along with few other employees included in merit list challenged Ext.P4 judgment, that writ appeal was disposed of taking note of the W.A.No.1107 of 2018 & W.P.(C) No.25819 of 2018 7 fact that the Government had already issued notices of hearing to all concerned parties. The Division Bench further observed that the merit list, as prepared earlier would not lapse, as the time taken in these proceedings and the time in which the Board was restrained from making appointments has to be excluded. In terms of the direction contained in Ext.P4 judgment, the Government issued Ext.P7 order after hearing all parties concerned. By Ext.P7, the Government cancelled Ext.P2 merit list and directed the Commissioner, Malabar Devaswom Board to prepare a fresh list strictly as per the Madras Hindu Religious and Charitable Endowments Rules (for short 'HR & CE'). The Government order was challenged unsuccessfully in W.P.(C) No.25821 of 2017 and is under challenge in W.P.(C) No.25819 of 2018. 4. The main ground of challenge in W.P.(C) No.25821 W.A.No.1107 of 2018 & W.P.(C) No.25819 of 2018 8 of 2017 was on the ground that, the fourth respondent having participated in the selection process without demur is estopped from challenging the result of such selection process, on finding that he was unsuccessful. The other ground is that Ext.P1 notification was issued in terms of Rule 4 (a) (1) of the HR&CE Rules framed under Section 100 (2) (p) and (x) (ii) of the Madras Hindu Religious and Charitable Endowments Act, 1951. That, the Interview Board had framed guidelines for selection and had also fixed the maximum marks to be awarded and the composition of marks. The interview having been conducted strictly in accordance with the guidelines and the marks having been awarded in accordance with the prescribed composition, the Government ought not have set aside the merit list and directed fresh selection to be conducted. The petitioners had urged a further ground that W.A.No.1107 of 2018 & W.P.(C) No.25819 of 2018 9 Ext.P7 order was vitiated due to non-application of mind. 5. The Government, as well as the fourth respondent refuted the averments in the writ petition and opposed the grounds urged by the petitioners. It was contended that the entire selection process was vitiated inasmuch as Rule 4 of the HR & CE Rules did not provide for an interview for the purpose of appointment by promotion to the post of Executive Officer Grade IV. It was contended that the fourth respondent had not been granted marks for educational qualification, in spite of he being a Post Graduate. It is pointed out that a person named P.V.Vijayan was included at rank No.14 in the merit list, in spite of the said person having only less than ten years of service. It was contended that the entire process was actuated by political considerations and hence vitiated. 6. The learned Single Judge considered W.P.(C) 10 W.A.No.1107 of 2018 & W.P.(C) No.25819 of 2018 No.25821 of 2017 along with W.P.(C) No.35485 of 2007, which writ petition was filed challenging the earlier selection conducted to the post of Executive Officer in the year 2005. W.P.(C) No.35485 of 2007 was dismissed holding that at this point of time, after more than a decade, it may not be proper for the Court to interfere with the selection. In W.P.(C) No.25821 of 2017, the learned Single Judge, on a comparison of the criteria for awarding marks with the guidelines issued for selection, found that the criteria for awarding marks had no co-relation with the guidelines. In view of the fact that the Interview Board had not followed the guidelines, the Government was held to be justified in interfering with the selection process. Based on the said finding, the writ petition was dismissed and hence, the writ appeal. 7. For a proper understanding of the issue involved, it 11 W.A.No.1107 of 2018 & W.P.(C) No.25819 of 2018 ## is necessary to have a look at Rule 4 (a) (1) of the HR&CE ## Rules, which reads as follows: “4.(a) (1) Appointment of an Executive Officer to any of the first five grades may be:- (i) by direct recruitment; or (ii) by promotion either from the next lower grade; or from among the employees of the Devasthanams who possess the requisite educational qualification and who have put in not less than 10 years temple service; or (iii) by obtaining the loan services of any member of the erstwhile HR&CE (Admn) department. As per Rule (a)(2), one out of every three vacancies shall be filled by direct recruitment while the other two shall be filled by any of the other method specified in subrule (a)(1). Provided that the Government may, for special reasons, alter the proportion specified above.” 8. Ext.P1 notification was issued in terms of Rule 4(a) (1). There were 18 vacancies in the post of Executive Officer, out of which 6 vacancies were notified for appointment in accordance with Rule 4(a)(1)(ii). As per resolution dated 7.9.2015 of the Malabar Devaswom Board, an Interview Board consisting of four persons were constituted. The Interview Board formulated the following guidelines for selection of 12 W.A.No.1107 of 2018 & W.P.(C) No.25819 of 2018 ## candidates: “i. Only those employees who have sufficient capacity and absolute integrity to execute the job of temple administration efficiently will be considered for appointment as Executive Officer. ii. Preference will be given to those who have higher educational qualification. iii. Those with long service shall be preferred. iv. In case of equivalency in qualifications and experience, those senior in age will be considered. v. Those who were punished for indiscipline, misappropriations and corruption will not be considered for the post. vi. Only those who believe in God and temple worship shall be considered. vii. Any type of recommendation will be a disqualification. viii. Permanent appointment is given only after police verification of antecedents. ix. Weightage shall be given to those in Clerical cadre.” 9. The maximum marks to be awarded in the interview was fixed as ten by each member and the criteria and composition of marks was fixed in the following manner: |1|For merit|5 marks| |---|---|---| |2|For higherqualification|2 marks| |3|Forperformance|3 marks| ||Total|10 marks| W.A.No.1107 of 2018 & W.P.(C) No.25819 of 2018 13 10. During the course of hearing, the learned Standing Counsel for the Malabar Devaswom Board was directed to make available the file pertaining to the interview. We carefully perused the file and found substance in the allegation of the fourth respondent that he was not given two marks for higher qualification by one among the four members in the Interview Board. In fact, the fourth respondent was awarded marks in the following manner: |**Interview Board**|**Merit**|**Higher**<br>**qualification**|**Performance**|**Total**<br>**marks**| |---|---|---|---|---| |Member No.1|0|2|½|2 ½| |Member No.2|½|0|2|2 ½| |Member No.3|0|2|½|2 ½| |Member No.4|0|2|½|2 ½| It is therefore evident that one of the members did not grant any mark to the fourth respondent for higher qualification. Three of the members did not give any mark for merit and the W.A.No.1107 of 2018 & W.P.(C) No.25819 of 2018 14 4[th] member gave only ½ mark. For the purpose of comparison, we are extracting hereunder the marks awarded for petitioners 1 to 3: ## **1 st petitioner:** |**Interview Board**|**Merit**|**Higher**<br>**qualification**|**Performance**|**Total**<br>**marks**| |---|---|---|---|---| |Member No.1|4|2|3|9| |Member No.2|4|2|2|8| |Member No.3|4½|2|2½|9| |Member No.4|5|2|2|9| ## **2 nd petitioner:** |**2**<br>**nd**<br>**petitioner:**||||| |---|---|---|---|---| |**Interview Board**|**Merit**|**Higher**<br>**qualification**|**Performance**|**Total**<br>**marks**| |Member No.1|3|2|3|8| |Member No.2|4½|2|2½|9| |Member No.3|4|2|2|8| |Member No.4|4|2|3|9| ## **3 rd petitioner:** |**Interview Board**|**Merit**|**Higher**<br>**qualification**|**Performance**|**Total**<br>**marks**| |---|---|---|---|---| |Member No.1|5|0|3|8| |Member No.2|5|0|2½|7½| |Member No.3|5|0|3|8| |Member No.4|5|0|3|8| 11. On verification of the file, it is seen that the 1[st] 15 W.A.No.1107 of 2018 & W.P.(C) No.25819 of 2018 petitioner is a B.Com Graduate, the 2[nd] petitioner is having M.A Sociology and HDC and the educational qualification of the 3[rd] petitioner is P.D.C and DCA. Petitioners 1 and 2 are seen to have been awarded two marks for higher qualification by all the members of the Interview Board, the 3[rd] petitioner has not been awarded any mark for higher qualification. For merit also, very high marks have been awarded to petitioners 1 to 3, whereas the fourth respondent was awarded zero mark by three members and ½ mark by one member. As noticed earlier, one among the four members has not awarded any mark to the fourth respondent under the head 'higher qualification', in spite of the fourth respondent being a Post Graduate. Therefore, _prima facie_ , the manner in which the Interview Board has awarded marks to the candidates reeks of arbitrariness. W.A.No.1107 of 2018 & W.P.(C) No.25819 of 2018 16 12. Going by the statement filed on behalf of respondents 2 and 3, after constitution of the Interview Board, the members of the Board had formulated the guidelines for selection of candidates and the criteria for awarding marks. The statement would further reveal that 60 applicants were interviewed on 18.9.2015 and the balance 103 applicants on 25.9.2015. This goes to show that the Interview Board would have got only bare minimum time for interviewing each applicant. In such circumstances, the assessment of merit would not have been done on the basis of the interview, especially since three marks was awarded for performance in the interview. 13. The learned Single Judge had taken note of the following clauses in the guidelines formulated for selection, to hold that those clauses should have found place while 17 W.A.No.1107 of 2018 & W.P.(C) No.25819 of 2018 ## assessing suitability of the candidates in the interview. The clauses are extracted below: “Only those employees who have sufficient capacity and absolute integrity to execute the job of temple administration efficiently will be considered for appointment as Executive Officer. Preference will be given to those who have higher educational qualifications. In case of equivalency in qualifications and experience, those senior in age will be considered. Weightage shall be given to those in Clerical Cadre.” We are in complete agreement with the finding in the impugned judgment that failure to co-relate the guidelines with the criteria for award of marks in the interview had vitiated the process of selection. The failure on the part of the Interview Board to co-relate the aforementioned clauses in the matter of assessing merit and higher qualification of a candidate has resulted in the arbitrary and whimsical manner in which marks were awarded to the candidates. If assessment of merit and award of marks for merit was based 18 W.A.No.1107 of 2018 & W.P.(C) No.25819 of 2018 only on the conduct certificate and service certificate of the candidates, then majority of the candidates, including the fourth respondent should have been awarded equal marks for merit. Hence, it is evident that the Interview Board had not followed the guidelines and therefore, the finding of the learned Single in that regard is unassailable. 14. Detailed argument was advanced by the learned Senior Counsel for the petitioners on the point that, after having participated in the selection process, the fourth respondent could not have challenged the result of such selection, on finding that he was unsuccessful. The decisions in **Asok Kumar and another v. State of Bihar and others [(2017) 4 SCC 357]** and **Gurmeet Pal Singh v. State of Punjab and another [(2018) 7 SCC 260]** were pressed into service in support of the said contention. We are fully W.A.No.1107 of 2018 & W.P.(C) No.25819 of 2018 **==> picture [13 x 9] intentionally omitted <==** conscious about the catena of decisions which have categorically laid down the proposition that a person who has consciously taken part in selection process cannot thereafter turn around and challenge the method of selection and its outcome. It is precisely for this reason that the challenge against the selection process on the ground that the Interview Board could not have formulated guidelines for selection, in the absence of any such stipulation in Rule 4(a)(1) of the HR&CE Rules, was not entertained by the learned Single Judge. But, the challenge on the ground that the selection process was conducted at variance with the guidelines and was actuated with malice and arbitrariness is for open consideration in exercise of the power under Article 226 of the Constitution of India. As held by a Division Bench of this Court in **Ajitha K and others v. Gurvayur Devaswom** W.A.No.1107 of 2018 & W.P.(C) No.25819 of 2018 20 **Managing Committee and others [ILR 2017 (4) Ker. 276]** , when the very 'process of recruitment' made contrary to the relevant provisions of law and binding precedents is under challenge, it cannot be branded as a simple 'service matter', or the party who attempts to set the law in motion cannot be non suited saying that he does not have any 'locus standi' or with reference to the principle that no public interest litigation is maintainable in service matters. Since, we refused to interfere with the findings in the impugned judgment for reasons mentioned above, we are not venturing to consider the contention that Sri.P.V.Vijayan, who is at serial No.14 in Ext.P2 merit list, does not have the requisite ten years experience. For the reasons mentioned above, we find no ground to interfere with the impugned judgment and resultantly, the writ appeal is dismissed. As we have upheld the judgment by 21 W.A.No.1107 of 2018 & W.P.(C) No.25819 of 2018 which the challenge against Ext.P7 Government order was rejected by the learned Single Judge, we dismiss W.P.(C) No. 25819 of 2018, which carries an identical challenge. **Sd/-** **C.T.RAVIKUMAR JUDGE** **Sd/V.G.ARUN JUDGE** scl/ 22 W.A.No.1107 of 2018 & W.P.(C) No.25819 of 2018 ## **APPENDIX OF WP(C) 25819/2018** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **PHOTOSTAT COPY OF THE NOTIFICATION DATED 13/3/2014.** **EXHIBIT P2 PHOTOSTAT COPY OF THE RANK LIST PUBLISHED BY THE INTERVIEW BOARD.** **EXHIBIT P3 PHOTOSTAT COPY OF THE ORDER DATED 29/6/2017 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P4 PHOTOSTAT COPY OF THE WRITTEN STATEMENT DATED 25/11/2016.** **EXHIBIT P5** **PHOTOSTAT COPY OF THE JUDGMENT IN WPC 25821/17 DATED 10/4/2018.**