Kerala High Court
K.Harikumar vs Travancore Devaswom Board on 3 October, 2018
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
WEDNESDAY,THE 03RD DAY OF OCTOBER 2018 / 11TH ASWINA, 1940
WP(C).No. 28195 of 2015
PETITIONER/S:
K.HARIKUMAR
AGED 48 YEARS
S/O.K.KARUNAKARAN PILLAI, SIVA KRIPA, T.C.8/909(2),
ELLUVILA NAGAR, THIRUMALA.P.O.,
THIRUVANANTHAPURAM-695 006.
BY ADV. SRI.D.AJITHKUMAR
RESPONDENT/S:
1 TRAVANCORE DEVASWOM BOARD
REPRESENTED BY ITS SECRETARY, NANTHANCODE,
THIRUVANANTHAPURAM.695 005.
2 SECRETARY
TRAVANCORE DEVASWOM BOARD, NANTHANCODE,
THIRUVANANTHAPURAM.695 005.
3 DEVASWOM COMMISSIONER
TRAVANCORE DEVASWOM BOARD, NANTHANCODE,
THIRUVANANTHAPURAM.695 005.
BY ADVS.
SRI.T.K.AJITH KUMAR, SC, TDB
SRI.C.K.PAVITHRAN SC TDB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
03.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 28195 of 2015
2
JUDGMENT
The petitioner was granted appointment on compassionate grounds under the Dying in Harness scheme, on the basis of Ext.P1 application submitted on 02.07.1998 in which he requested for appointment to the post of Peon/Watcher. As per Ext P2 letter dated 06.08.2001, the respondent Board informed the petitioner that in the list, prepared for appointment under the Dying in Harness scheme for appointment as Peons he was included as Sl.no.15. He was asked to send his letter of consent to the Board, in case he was willing to be posted as Watcher. As directed by the respondents, petitioner submitted Ext.P3 letter of consent in a stamp paper expressing his willingness to be appointed as Watcher and undertaking that he would not raise any other claims. It was only thereafter that the 3rd WP(C).No. 28195 of 2015 3 respondent appointed him as per Ext.P4 order on 29.04.2002.
2. Petitioner submits that he furnished the undertaking, out of his extreme necessity to get an employment. Petitioner submits that several Peons who were appointed as Peons as per Ext.P6 series of orders issued in 2008, were given appointment as LD Clerks as per Ext.P8 order issued on 05.06.2012. Petitioner submitted that one Smt. Asha Devi, who was appointed as Peon as per Ext.P6(e) order dated 25.11.2009, had given Ext.P7 undertaking as was given by the petitioner that she will not claim appointment in any higher posts. However she was given appointment as L.D.Clerk as per Ext.P8 order. Petitioner has also submitted that M/s R. Arun, P.Ravi, who were appointed as Peons as per Ext.P6 series under the dying in harness scheme, based on Ext.P9 and P9(a) applications were given appointment as LD Clerks as per Ext.P8 order. Even though WP(C).No. 28195 of 2015 4 petitioner submitted Ext.P10 representation requesting for similar consideration, the 3rd respondent rejected the same, as per Ext.P11 letter dated 08.03.2013, stating that his request for category change as Peon cannot be granted as per the rules in force. Petitioner thereupon submitted Ext.P13 appeal, pointing out the discriminatory treatment in giving category change to those appointed as Peons as per Ext.P6 series of orders as L.D.Clerks, even when they had not made any request for appointment as L.D.Clerks in their applications. But the Board rejected the appeal as per Ext.P14 order stating that petitioner had accepted the appointment as Watcher after giving an undertaking that he will not raise any other claims. It was stated that petitioner wanted appointment as watcher seeing the delay involved for appointment as Peon and therefore he got such appointment at an earlier point of time. This writ petition WP(C).No. 28195 of 2015 5 is filed challenging Ext.P14 order. Producing Ext.P15 Medical Certificate petitioner claims that he is under treatment for chronic allergy and therefore his continuance as Watcher will aggravate his ailment and a category change as Peon is required. Petitioner submits that the Board is taking a different yardstick in his case, though his application itself was for appointment as Peon/Watcher, while giving appointment to Peons as L.D Clerks despite their undertaking.
3. The respondents have filed a statement to the effect that subsequent to the commencement of Kerala Devaswom Recruitment Board Act, 2015, no appointment can be made to the post of Peon except through the Devaswom Recruitment Board after preparation of the select list. It is stated that petitioner relinquished his claim for appointment as Peon by submitting his consent letter undertaking not to raise any further claims, seeing that WP(C).No. 28195 of 2015 6 appointment as Peon would take much time. It is stated that the appointments of Peons as Clerks were made under special circumstances and the same was made before the Devaswom Recruitment Board Act came into force.
4. As pointed out by the petitioner, it is seen that the Board has granted category change as per Ext.P8 order, to several Peons appointed under dying in harness scheme, despite their undertaking not to raise any further claims as submitted by petitioner, as evident from the case of Smt.Asha Devi who was appointed as per Ext.P6(e)order, who submitted Ext.P7 undertaking and got category change as per Ext.P8 order. At the same time they adopted a different attitude in the case of the petitioner invoking his consent letter. Though there is no justifiable reason for the special consideration, to those included in Ext.P8 order, now that on the effectuation of the Devaswom Recruitment Board Act, no WP(C).No. 28195 of 2015 7 appointment can be made to the post of Peon otherwise than through the Recruitment Board. Ext.P8 order was issued on 05.06.2012. Therefore at this stage no direction can be issued to the respondents to grant category change to petitioner. Though Ext.P14 order does not say that the denial of category change is consequent to the coming into force of the Devaswom Recruitment Board Act, it is a fact that the Act has come in force and recruitment is entrusted to the said Board.
5. At any rate petitioner will be free to move the respondents in case any provision is available for category change or promotion, as he has been working as Watcher since the year 2002. The undertaking cannot stand in the way of any of his claims available by virtue of the service rendered by him as Watcher since the year 2002 and also for consideration of his case for category change on medical grounds, if situation warrants.
WP(C).No. 28195 of 20158
The writ petition is disposed of
accordingly. Sd/-
P.V.ASHA
JUDGE
WW
WP(C).No. 28195 of 2015
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE APPLICATION UNDER
APPOINTMENT OF RELATIVES/DEPENDENTS OF
DEVASWOM EMPLOYEES DYING IN HARNESS ON 2.7.1998.
EXHIBIT P2 TRUE COPY OF THIS LETTER OF THE SECOND RESPONDENT DATED 06.8.2001.
EXHIBIT P3 TRUE COPY OF THE WILLINGNESS TO BE APPOINTED AS WATCHER AS REQUIRED IN EXT.P2 DATED 12.8.2001 GIVEN BY PETITIONER.
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 29.4.2002 OF THE 3RD RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE ORDER NO.ROC 4206/94 MIS.A DATED 09.05.2002 BY THE 3RD RESPONDENT. EXHIBIT P6 TRUE COPY OF THE MEMO REGARDING THE APPOINTMENT OF P.RAVI DATED 14.05.08. EXHIBIT P6(A) TRUE COPY OF THE MEMO REGARDING THE APPOINTMENT OF B.MAYA DATED 14.05.08. EXHIBIT P6(B) TRUE COPY OF THE MEMO REGARDING THE APPOINTMENT OF M.D.SREEKUMAR DATED 14.05.08. EXHIBIT P6(C) TRUE COPY OF THE MEMO REGARDING THE APPOINTMENT OF R.ARUN DATED 14.05.08. EXHIBIT P6(D) TRUE COPY OF THE MEMO REGARDING THE APPOINTMENT OF V.R.JYOTHI DATED 14.05.08. EXHIBIT P6(E) TRUE COPY OF THE MEMO REGARDING THE APPOINTMENT OF ASHA DEVI DATED 14.05.08. EXHIBIT P7 TRUE COPY OF THE WILLINGNESS LETTER TO BE APPOINTED AS PEON SUBMITTED BY SMT.ASHA DEVI DATED 6.11.2003.
WP(C).No. 28195 of 201510 EXHIBIT P8 TRUE COPY OF THE ROC NO.1310/86/EST DATED 5.6.2012 OF THE 3RD RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE APPLICATION OF P.RAVINDRAN NAIR.
EXHIBIT P9(A) TRUE COPY OF THE APPLICATION OF C.PRABHULLA CHANDRAN NAIR.
EXHIBIT P9(B) TRUE COPY OF THE APPLICATION OF ARUN.R DATED 9.03.2000.
EXHIBIT P10 TRUE COPY OF THE APPLICATION DATED 25.6.2012 SENT BY PETITIONER THROUGH THE OFFICE OF SUB GROUP OFFICER, PUTHENCHANDA.
EXHIBIT P11 TRUE COPY OF THE ROC NO.8.3.2013 ISSUED BY 3RD RESPONDENT REJECTING THE EXT.P9 APPLICATION.
EXHIBIT P12 TRUE COPY OF THE REPLY ABOUT THE VACANCIES AVAILABLE FOR THE APPOINTMENT TO THE POST OF PEON WHICH IS OBTAINED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT DATED 8.05.2015 FROM THE DEVASWOM COMMISSIONER'S OFFICE.
EXHIBIT P13 TRUE COPY OF THE APPEAL DATED 12.6.2015 FILED BEFORE THE 1ST RESPONDENT.
EXHIBIT P14 TRUE COPY OF THE ROC NO.6011/98/EST-IV DATED 07.8.2015 OF THE 1ST RESPONDENT.
EXHIBIT P15 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 3.8.2015 ISSUED TO PETITIONER BY DR.M.VELAYUDHAN.