Kerala High Court
& vs Director Of Education And
Author: P.R. Ramachandra Menon
Bench: P.R.Ramachandra Menon, V Shircy
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.
MONDAY, THE 21ST DAY OFAUGUST 2017/30TH SRAVANA, 1939
WP(C).No. 27575 of 2006 (G)
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PETITIONERS
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1. AJITHAKUMARI M., AGED 32 YEARS,
PAZHAYATHIL, KIZHAKATHIL,, MEEYANNOOR, KOLLAM.
2. SREEJI P.L., AGED 35 YEARS,
EAST PAZHAYATTIL, MEEYANNOOR P.O.,, KOLLAM.
3. GOPAKUMAR N.R., AGED 31 YEARS,
N.R.BHAVAN, AYOOR P.O., KOLLAM.
4. MANJITH V., AGED 30 YEARS,
RATHEESH BHAVAN, MALYALAPUZHA,, PATHANAMTHITTA
DISTRICT.
5. SAKTHI SASI, AGED 23 YEARS,
KURISSERY PUTHEN VEEDU,, PANMANA, PUTHENCHANTHA.
6. SIJU S., AGED 24 YEARS,
S.M.BHAVAN, PALACE ROAD, KAYAMKULAM.
7. RAJESH S., AGED 35 YEARS,
R.L.C. HOUSE, KADAKKAVOOR, THIRUVANANTHAPURAM.
8. VISHNU H., AGED 27 YEARS,
PRIYA HOUSE, THIRUNELLOOR P.O.,, CHERTHALA.
9. NITHIN P.R., AGED 26 YEARS,
ASWATHY, NORTH ARYAD P.O., ALAPPUZHA.
10. PRAVEEN J.R., AGED 30 YEARS,
S/O.RADHAKRISHNA PANICKER, JYOTHISH,, ATHIYANNOOR,
ARALUMMOODU, THIRUVANANTHAPURAM.
BYADVS.SRI.MOHAN JACOB GEORGE
SMT.P.V.PARVATHI
SMT.REENA THOMAS
SRI.L.RAM MOHAN
SRI.TITUS THOMAS
SRI.O.V.RADHAKRISHNAN (SR.)
RESPONDENT(S):
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1. THE TRAVANCORE DEVASWOM BOARD,
REP. BY ITS SECRETARY, DEVASWOM BOARD BUILDING,,
KURAVANKONAM, THIRUVANANTHAPURAM.
Addl. 2. SAJIMON R.
"SREEHARI", T.C.22/393 (2), KONCHIRAVILA, MANACAUD P.O.,
THIRUVANANTHAPURAM -9.
Addl. 3. UDAYAN B.
MANKATHU MELATHIL, KUNDARAAMBIKAPOIKA, KOLLAM.
Addl. 4. LEKHA K.
ELLALIKIZHAKKATHIL, CHAVARA, PONMANA PO., NOW AT
S.V.MARKET PO., KARUNAGAPPALLY - 690 573, KOLLAM DISTRICT.
ARE IMPLEADED AS SUPPLEMENTAL RESPONDENTS 2 TO 4 AS PER ORDER
DATED 20.5.2010 IN I.A.NO.4417/2010
R,R1 BY ADV. SRI.P.GOPAL
R,ADDL.R2-4 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR
R,R1 BY ADV. SRI.V.KRISHNA MENON
R,ADDL.R2-4 BY ADV. SRI.P.G.RAJAGOPALAN
R,R1 BY ADV. SRI.U.K.RAMAKRISHNAN (SR.)
R,R1 BY ADV. SRI.NAGARAJ NARAYANAN, SC, TDB
R,R1 BY ADV. SMT.P.VIJAYAMMA
R. BY ADV. SRI.T.K.AJITH KUMAR, SC, TDB
R BY SRI.C.VIJAYAN, SC, TDB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-08-2017
ALONG WITH WPC. 35869/2009, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P(C)No.27575/2006
APPENDIX'
PETITIONERS EXHIBITS
EXT.P1 COPY OF THE NOTIFICATION PUBLISHED IN THE MALAYALA
MANORAMA DAILYAT 18.5.2005
EXT.P2 COPY OF THE PRINT OUT OF THE RESULTS OF THE WRITTEN TEST
OF the 1ST PETITIONER PUBLISHED THROUGH INTERNET
EXT.P3 COPY OF THE PRINT OUT OF THE RESULTS OF THE WRITTEN TEST
OF THE 2ND PETITONER PUBLISHED THROUGH INTERNET
EXT.P4 COPY OF THE PRINT OUT OF THE RESULTS OF THE WRITTEN TEST
OF THE 3RD PETITIONER PUBLISHED THROUGH INTERNET
EXT.P5 COPY OF THE PRINT OUT OF THE RESULTS OF THE WRITTEN TEST
OF THE 4TH PETITIONER PUBLISHED THROUGH INTERNET
EXT.P6 COPY OF THE PRINT OUT OF THE RESULTS OF THE WRITTEN TEST
OF THE 5TH PETITIONER PUBLISHED THROUGH INTERNET
EXT.P7 COPY OF THE PRINT OUT OF THE RESULTS OF THE WRITTEN TEST
OF THE 6TH PETITIONER PUBLISHED THROUGH INTERNET
EXT.P8 COPY OF THE PRINT OUT OF THE RESULTS OF THE WRITTEN TEST
OF THE 7TH PETITIONER PUBLISHED THROUGH INTERNET
EXT.P9 COPY OF THE PRINT OUT OF THE RESULTS OF THE WRITTEN TEST
OF THE 8TH PETITIONER PUBLISHED THROUGH INTERNET
EXT.P10 COPY OF THE PRINT OUT OF THE RESULTS OF THE WRITTEN TEST
OF THE 9TH PETITIONER PUBLISHED THROUGH INTERNET
EXT.P11 COPY OF THE PRINT OUT OF THE RESULT OF THE WRITTEN TEST OF
THE 10TH PETITIONER PUBLISHED THROUGH INTERNET
EXT.P12 COPY OF the INTERIM ORDER DATE13.11.2006 PASSED BY THIS
HONOURABLE COURT IN THE ABOVE W.P
EXT.P12(a) COPY OF THE INTERIM ORDER DATED 2.1.2007 PASSED BY THIS
HONOURABLE COURT IN THE ABOVE W.P. AND TWO OTHER W.PS.
EXT.P12(b) COPY OF THE SAID NOTIFICATION DATED 12.4.2007
EXT.P13 COPY OF THE CONTEMPT PETITION FILED AS CON. CASE (CIVIL)
NO.547/2007
EXT.P14 COPY OF THE JUDGMENT DATED 14.11.2007 IN CON.CASE (CIVIL)
NO.547/2009
W.P(C)No.27575/2006
EXT.P15 COPY OF THE ADDITIONAL COUNTER AFFIDAVIT FILED IN
CONT.CSE (c)NO.314/2008
EXT.P16 COPY OF THE JUDGMENT DATED 13.3.2008 IN
CON.CASE (C)NO.314/2008
EXT.P17 COPY OF THE SAID REPRESENTATION DATED 25.3.2008 ADDRESSED
TO THE BOARD MEMBERS
EXT.P17(a) COPY OF THE SAID REPRESENTATION DATED 25.3.2008 ADDRESSED
TO THE BOARD MEMBERS
EXT.P17(b) COPY OF THE SAID REPRESENTATION DATED 25.3.2008 ADDRESSED
TO THE BOARD MEMBERS
EXT.P18 COPY OF THE REVIEW PETITION NO.530/2008
EXT.P19 COPY OF THE JUDGMENT DATED 2.7.2008 IN R.P.NO.530/2008
EXT.P20 COPY OF THE PETITION FILED IN CON.CASE NO.314/2008 IN I.A.NO.
481/2008 DATED 2.7.2008
EXT.P21 COPY OF THE REVIEW PETITION NO.804/2008 DATED 2.1.2007
EXT.P22 COPY OF THE COMMON ORDER DATED 19.8.2008 IN R.PNO.804/2008
AND R.P.NO.530/2008
EXT.P23 COPY OF THE ORDER DATED 23.10.208 IN S.L.P(C) NO.23442-23445/2008
EXT.P24 COPY OF THE APPOINTMENT ORDER DATED 23.1.2009
EXT.P24(a) COPY OF THE APPOINTMENT ORDER DATED 8.5.2009
EXT.P25 COPY OF THE NOTIFICATION DATED 12.3.2010 IN the
MATHRUBHUMI DAILYAT 17.3.2010
EXT.P26 COPY OF THE NOTIFICATION DATED 27.6.2008 PUBLISHED IN THE
KERALA GAZETTE EXTRA ORDINARY DATED 28.6.208
EXT.P27 COPY OF THE (ADDITONAL FUNCTION AS RESPECTS THE
ADMINISTRATIVE SERVICE UNDER THE DEVASWOM BOARD)
RULES, 2009
EXT.P28 COPY OF THE TRAVANCORE COCHIN HINDU RELIGIOUS
INSTITUTIONS (AMENDMENTS) ORDINANCE, 2012
PUBLISHED IN THE KERALA GAZETTE EXTRA ORDINARY DATED
10.11.2012
EXT.P29 COPY OF THE TRAVANCORE COCHIN HINDU RELIGIOUS
INSTITUTIONS AMENDMENT BILL, 2013
W.P(C)No.27575/2006
EXT.P30 COPY OF THE NOTIFICATION DATED 13.3.2015 WHICH WAS
PUBLISHED IN THE KERALA GAZETTE EXTRA ORDINARY DATED
13.3.2015
EXT.P31 COPY OF THE KERALA DEVASWOM BOARD RECRUITMENT
RULES, 2015
EXT.P32 COPY OF THE KERALA DEVASWOM RECRUITMENT BOARD BILL 2015
AS NOTIFIFIED IN THE KERALA GAZETTE EXTRA ORDINARY DATED
17.8.2015
EXT.P33 COPY OF THE NOTIFICATION DATED 17.8.2015 ALONG WITH THE
ENGLISH TRANSLATION OF THE KERALA DEVASWOM
RECRUITMENT BOARD ACT, 2015
EXT.P34 COPY OF the ORDER DATED 30.8.2013 IN I.A.NO.4/2013 OF THE
HONOURABLE SUPREME COURT.
RESPONDENTS EXHIBITS NIL
TRUE COPY
P.A TO JUDGE
SMM
P.R. RAMACHANDRA MENON & SHIRCY V.,JJ.
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W.P.(C) Nos.27575 of 2006
& 35869 of 2009
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Dated this the 21st day of August , 2017
JUDGMENT
P.R. Ramachandra Menon, J.
Grievance projected in these two writ petitions is almost similar, though raised in different forms and hence, they are dealt with together. W.P(C) No.27575/2006 is treated as the lead case and the parties and proceedings are referred to as given therein except where it is separately mentioned in relation to the context.
2. The grievance projected by both the petitioners is in respect of the alleged callous inaction on the part of the respondent Board (Travancore Devaswom Board) in finalising the selection and appointment to the post of W.P.(C) Nos.27575 of 2006 & 35869 of 2009 2 Lower Division Clerk cum Sub Group Officer-Grade II, pursuant to the notification inviting applications issued in the year 2002 and 2005. Reference is also made to various orders passed by this Court at different points of time to have the proceedings finalised, especially in relation to the vacancies which arose prior to the introduction of Section 29A of the Travancore Cochin Hindu Religious Institutions Act. The prayers raised by the petitioners in W.P(C)No.27575/2006 (as amended) are in the following terms:
"A. Issue a writ of Mandamus or any other appropriate writ or order commanding the Respondent to publish the ranked list of LDC cum Sub Group Officer Grade II by completing the selection process in pursuance of Exhibit.P1 and make the appointment of th e eligible candidates against the existing vacancies forthwith or within a time limit prescribed by this Hon'be Court.
AA. Declare that the introduction of Section 29A of the Travancore Cochin Hindu Religious Institutions Act, does not affect the Petitioners to be considered for W.P.(C) Nos.27575 of 2006 & 35869 of 2009 3 appointment from the rank list prepared by the Respondent (in pursuance of the directions given by this Hon'ble Court) and issue a writ of Mandamus or other appropriate writ or order commanding the Respondent to consider the Petitioners for appointment.
AAA. Issue a writ of Mandamus to the Respondents to issue the appointment orders to the petitioners, within a time limit prescribed by this Hon'be Court, if they are found eligible to be appointed to the post of LDC/Sub Group Officers from the select list/ranked list prepared by the Respondent.
AA(1) Declare that the introduction of Act 16/2015 and its various provisions contained therein does not affect the Petitioners to be considered for appointment from the rank list/select list prepared by the Respondent in pursuance of the directions given by this Hon'ble Court and issue a writ of Mandamus or other appropriate writ or order commanding the Respondent to consider the Petitioners for appointment to the posts advertised/notified in Ext.P1.
AA(2) Declare that the Petitioners shall be deemed to be notionally appointed to the post of LDC/Sub Group Officers- Grade II with effect from the occurrence of the date of vacancy excluding a reasonable period of three months to be taken for the W.P.(C) Nos.27575 of 2006 & 35869 of 2009 4 completion of the selection/appointment process and issue a writ of Mandamus or other appropriate writ or order commanding the Respondent to pass orders accordingly in respect of the appointment of the petitioners."
3. The reliefs sought for have been opposed from the part of the respondent Board by filing a counter affidavit. During the pendency of the cases, various other proceedings also came to be filed and the pleadings have been completed from both the sides and they are heard accordingly.
4. With regard to sequence of events, it is to be noted that the respondent Board invited applications for filling of the post of Lower Division Clerk cum Sub Group Officers Grade II as per Exhibit.R1(b) notification dated 28.2.2002 and R1(c) notification dated 10.5.2005 respectively. A written test was conducted on 2.7.2006 and results were finalised. But since no appointment was given and the rank list was not published, the petitioners W.P.(C) Nos.27575 of 2006 & 35869 of 2009 5 in W.P(C)27575/2006 approached this Court seeking for a direction to publish the rank list and to effect appointments. An interim order was passed on 13.11.2006 to give the particulars of the persons to be interviewed and to issue interview memos accordingly, which was followed by another order passed on 2.1.2007 for selection of Lower Division Clerk cum Sub Group Officer Grade II. The relevant portion of the said order reads as follows:
"14. The High Power Commission will be entitled to insist for the presence of persons including officer bearers of the Board. They will be entitled to call for materials in the course of investigation as they deem fit. The operational discretion also will be within their competence. The High Power Commission can apprise this Court of any details during the course of enquiry so as to get across technical hurdles for them to function most effectively.
15. The expenses incurred by the High Power Commission are to be met by the Travancore Devaswom Board. The members will be entitled to draw remuneration, which for the time being, we suggest, W.P.(C) Nos.27575 of 2006 & 35869 of 2009 6 should be equal to the last pay drawn while they were holding respective public offices. The Commission would be made available assistance of a competent secretary, who may be spared by the High Court. The sitting of the High Power Commission would be in adequate space provided in Ram Mohan Palace (old High Court Complex), Ernakulam. The Government is to pass appropriate proceedings, constituting the Commission in six weeks time.
16. We also direct the steps in respect of the selection to the post of L.D.C/Group Officers including interview are to be completed and a rank list prepared. We record the undertaking given by the additional 8th respondent in the writ petition that they will not interfere with such procedures. It is however made clear that appointments are to be made only after further orders are passed by this Court."
5. In the course of further proceedings, there was a direction issued by this Court to have the proceedings finalised and to publish the rank list by the Travancore Devaswom Board. However, it was not given effect to by the Devaswom due to one or the other reason and lastly, with reference to the incorporation of the Section 29A of the Act, (whereby the field of selection and recruitment W.P.(C) Nos.27575 of 2006 & 35869 of 2009 7 was left to the purview of the PSC). According to the petitioners, the said provision which was brought into existence only much later was not applicable to the case in hand and hence they contend that the selection notified, initiated and finalised prior to incorporation of the said provision should have been taken to logical conclusion giving appointment to the eligible hands.
6. Sri. O.V.Radhakrishnan, the learned Senior Counsel appearing for the petitioners in W.P(C) No.27525/2006 submits that, by virtue of Section 1(2) of the Travancore Cochin Hindu Religious Institutions Amendment Act, 2007, all Sections except Sections 13 and 31 had come into force on 5.7.2007, whereas in the case of Sections 13 and 31 (with regard to insertion of Section 29A and Section 127A respectively, leading the field of selection and recruitment to the PSC in the Travancore Devaswom Board and Cochin Devaswom Board respectively) were to be brought into force only on W.P.(C) Nos.27575 of 2006 & 35869 of 2009 8 the date as to be notified. As a matter of fact, by virtue of Exhibit.P26 Gazette Notification dated 28.6.2008, the above two provisions (Sections 13 and 31) were brought into force only on 1.7.2008.
7. Since the orders passed by this Court in the meanwhile, to have the proceedings finalised, were not implemented, CCC No.547/2007 was filed in respect of the contumacious action on the part of the contemnor. Later, the said Contempt of Court case was disposed of as per Ext.P16 order, based on the submissions made by the respondents that the directions would be complied within three months. The petitioner has approached this Court again by filing Review Petition No. 530/2008 (Exhibit.P18) seeking to revive the Contempt of Court proceedings after recalling Ext.P16 order. As per Ext.P19 order, the Review Petition was allowed. Ext.P16 order was recalled and the Contempt of Court Case was reposted for hearing.
8. Met with the situation, the Travancore Devaswom W.P.(C) Nos.27575 of 2006 & 35869 of 2009 9 Board filed Ext.P21 Review Petition, mainly pointing out that the difficulty experienced by the Board was with reference to Section 29A of the Act, which took away the powers of the Board and left it within the purview of the PSC for effecting the appointments. It is seen from Ext.P22, that further steps were pursued to frame charges against the respondent. Though the Devaswom Board moved the Apex Court by filing a Special Leave Petition, it came to be withdrawn as borne by Ext.P23 dated 3.10.2008. It is however submitted that the selection was finalised and rank list was produced before the Court in a sealed cover.
9. In the meanwhile, the Travancore-Cochin Hindu Religious Institutions Amendment Bill was introduced as per Ext.P29. As per the said amendment, the instance of leaving the field of selection and recruitment to be with the PSC was withdrawn, by virtue of which Section 29A has now disappeared from the Statute Book and the W.P.(C) Nos.27575 of 2006 & 35869 of 2009 10 position remains to be, as it was earlier, though the field of selection and recruitment subsequently came to be vested with the Kerala Devaswom Recruitment Board pursuant to Ext.P30 Gazette Notification dated 13.3.2015 and the relevant Rules notified as per Ext.P31 notified in the Gazette on 30.5.2015. The above Act obtained assent from the Governor on 14-8-2015 as evident from Ext.P32 and it has come into force from 1.3.2014 as borne by Ext.P33.
10. While so, some of the petitioners had approached the Apex Court by filing S.L.P.No.9306/2012, mainly contending that the respondent Devaswom was proceeding with steps for filling up the vacancies by way of compassionate appointments and also by other means, without any regard to the rights and liberties of the petitioners to get appointment to the post in question. Ext.P34 interim order was passed by the Apex Court on 30.8.2013, making it, clear that such appointment will be W.P.(C) Nos.27575 of 2006 & 35869 of 2009 11 'subject to the result' of the proceedings pending before the Court. The matter was later remanded by the Supreme Court and pursuant to the said order, this matter came to be listed before this Court again.
11. The learned Senior Counsel points out that there is no dispute to the fact that selection and recruitment was left to the purview of the PSC only much later in 2008. By this time, the selection proceedings already initiated in the years 2002/2005 had almost been completed. Further, such notifications were in respect of the vacancies already arisen and in the said circumstances, all such vacancies which arose prior to incorporation of Section 29A ought to have been filled up only by applying the unamended provision of law and not otherwise. It is further contended that the amendment by way of introduction of Section 29A, is not having any retrospective effect and in absence of any mention in this regard in the statute, the said provision could be made W.P.(C) Nos.27575 of 2006 & 35869 of 2009 12 applicable only prospective. The Rules could not have been changed after commencement of the process of selection, detrimental to the rights and interests of the candidates who already applied, participated in the test and come out successful in the selection process. Reliance is sought to be placed on the verdict passed by the Supreme Court in Richa Mishra v. State of Chattisgarh and Others (2016 (4) SCC 179). Further reliance is sought to be placed on the verdicts rendered by Apex Court in P.Ganeshwar Rao and Others [(1988 (Sup) SCC 740)], AA.Calton vs Director of Education and Another [(1983) 3 SCC 33], N.T.Devin Katti and Others vs. Karnataka Public Service Commission [(1990) 3 SCC 157], B.L.Gupta and Another v. M.C.D [(1998)9 SCC 223)], Secretary, A.P.Public Service Commission v. B.Swapna and Others [(2005)4 SCC 154], , P.Mahendran v. State of Kerala [(AIR 1990 SC
405)], and State of Punjab and others v. Arun W.P.(C) Nos.27575 of 2006 & 35869 of 2009 13 Kumar Aggarwal and Others [(2007) 10 SCC 402]. With reference to the above rulings, it is contended that the petitioners have a vested right to be considered, taking the selection proceedings to a logical conclusion, which could not have been intercepted with reference to a subsequent change in the relevant provisions of law.
12. As there is no much dispute with regard to the proposition laid down in the aforesaid verdicts, this Court does not find it necessary to discuss the said judgments, one by one. The crux of the submission put forth by the petitioners is that, in the instant case, since the vacancies were notified and the selection proceedings were conducted and finalised prior to introduction of Section 29A in the Statute (leaving the field of recruitment to the PSC) the vacancies notified already ought to have been filled up by the Travancore Devaswom Board itself, based on the rank list prepared in this regard. It is also the case of the petitioners that, by virtue of the observations in W.P.(C) Nos.27575 of 2006 & 35869 of 2009 14 Ext.P22 verdict passed by the Division Bench (in the Review Petition) that Section 29A was only 'prospective' (which was brought into effect only from 1.7.2008) and by virtue of the specific directions given by this Court in Ext.P12, (to finalise the selection including the interview and to publish the rank list), there is an inter-party verdict, which cannot be watered down by a subsequent amendment of the statute, as laid down by the Apex Court in M.M.Pathak v. Union of India [AIR 1978 SC 803] (Constitution Bench of 7 Judges).
13. The learned Counsel for the Devaswom submits that there was absolutely no lapse or mistake on the part of the Devaswom and that, though the selection proceedings were finalised pursuant to Ext.R1(b) and R1
(c) notification issued in 2002 and 2005 respectively, the appointment could not be given by virtue of the subsequent change in the scenario. As a matter of fact, about 78,000 applications were received pursuant to the W.P.(C) Nos.27575 of 2006 & 35869 of 2009 15 notifications issued in 2002 and 2005 and by virtue of the large number of applications, the task of conducting written test was entrusted with another body by name "Rutronix" who conducted the test, assessed the merit, fixing the cut off marks and gave a list of 506 candidates for being interviewed by the Devaswom. Among the said total, only 395 candidates had turned up for the interview and they were interviewed accordingly. By that time, some group/organisation conducted a state-wise agitation alleging nepotism, corruption and such other insinuations and in the said circumstance, no further steps were pursued by the Devaswom to finalise the ranked list. It was in this context, that the petitioners approached this Court by filing the writ petition to complete the process of selection, wherein an interim order was passed to finalise the same, including the interview and to prepare the rank list.
14. By the time the interim order was passed as W.P.(C) Nos.27575 of 2006 & 35869 of 2009 16 above, Section 29A (leaving the selection and recruitment to the field of PSC) was already brought into existence. This necessitated in filing of a Review Petition before this Court, with reference to Section 29A of the Act which however, came to be dismissed. Since the SLP preferred by the Travancore Devaswom Board was subsequently withdrawn, the selection proceedings were finalised and the rank list containing the names of 433 persons was prepared and placed before this Court in a sealed cover. After final hearing held on 14.2.2011, a Division Bench of this Court held that the writ petitions were to fail, on the issue relating to the provisions contained in Section 29A of the Travancore Cochin Hindu Religious Institutions Act, 1950. Similar provision in respect of the Cochin Devaswom Board is Section 127A. After considering the said provision, another Division Bench of this Court has held in CDB vs. Deputy Director Local Fund Account (Cochin Devaswom) [2011 4 KLT 849] that, after the W.P.(C) Nos.27575 of 2006 & 35869 of 2009 17 incorporation of the said provision, further appointment in the different vacancies in the Board could be done only in consultation with the PSC. Placing reliance on the said verdict, this Court observed that, it clearly applied to the Travancore Devaswom Board as well, in relation to Section 29A of the Act and it was accordingly, that all the writ petitions were dismissed.
15. On dismissal of the writ petitions, the petitioners moved the Apex Court by filing SLP No.9306/2012, where in Ext.P34 interim order was passed on 30.8.2013, holding that confirmation of the persons already appointed and/or those who may be appointed hereinafter shall remain subject to the adjudication of the Special Leave Petition. When the matter came up for further consideration before the Apex Court on 29.3.2017, the Civil Appeals were heard, when it was brought to the notice of the Court, that the adverse provision cited against the petitioner (Section 29A of the Act) had W.P.(C) Nos.27575 of 2006 & 35869 of 2009 18 already been deleted from the statute book and hence the matter had to be reconsidered. It was accordingly, that the Supreme Court set aside the verdict passed by this Court and remanded the matter for fresh consideration in accordance with law. The submission of the learned Standing Counsel for the Devaswom is that, though Section 29A was subsequently deleted from the statute book in the year 2012, by the time the appeals pending before the Supreme Court were finalised as per the order passed on 29.3.2017, the field of selection and appointment in all the Devaswom Boards in Kerala had already been brought within the purview of the Kerala Devaswom Board Recruitment Board, which is a Statutory Body created under a specific enactment as borne by Exts.P30, P32 and P33. This vital fact was unfortunately omitted to be brought to the notice of the Supreme Court while passing the order dated 29.3.2017 remanding the matter to be considered afresh. By virtue of the said W.P.(C) Nos.27575 of 2006 & 35869 of 2009 19 position, the net result is the same and the Devaswom Board is not in a position to effect any appointment, submits the learned counsel.
16. We find considerable force in the submission made by the learned standing Counsel for the Devaswom. There is no dispute to the fact that Section 29A which was introduced with effect from 1.7.2008 was subsequently removed from the statute book with effect from 10.11.2012. The writ petitions filed were earlier considered and dismissed by this Court as per judgment dated 14.11.2011 with reference to existence of Section 29A (as it was then remaining in the statute book). Subsequently S.29A was deleted from the statute book with effect from 10.11.2012. It was on noting the said position, that the matter was remanded by the Apex Court as per order dated 29.3.2017.
17. The circumstances under which the above order was passed by the Apex Court are relevant and hence the W.P.(C) Nos.27575 of 2006 & 35869 of 2009 20 order, as such, is extracted below.
"Leave granted We have heard learned counsel for the parties. The appellants were placed in the select list for service under the Travancore Devaswom Board. The selection was cancelled in view of Section 29A of the Travancore Cochin Hindu Religious Act, 1950. This decision has been upheld by the High Court.
It has been pointed out by the learned counsel for the appellants that the Section in question has now been deleted after the judgment While we agree with the view taken by the High Court that the statutory provision which may have come into force before appointment could not be ignored for making an appointment, since the provision itself has been deleted now, we set aside the impugned order and remand the matter back to the High Court for a fresh decisin in accordance with law."
From the above, it is quite clear that an opinion was expressed by the Apex Court to the effect that the Apex Court agreed with the view taken by the High Court as reflected in the judgment dated 14.11.2011 in the writ petition and that the statutory provision, which may have W.P.(C) Nos.27575 of 2006 & 35869 of 2009 21 come into force before appointment, could not be ignored for making an appointment. At the same time, the Apex Court further observed that, since the provision itself was deleted by that time, the matter required to be reconsidered in accordance with law, thus ordering the remand after setting aside the judgment passed by this Court. In other words, the subsequent change in the field of recruitment as per the amendment was held as a relevant factor to be considered, before effecting the appointment.
18. It is true that Section 29A has been deleted from 10.11.2012, but by the time the matter was finalised by the Supreme Court ordering remand, another enactment for dealing with the selection and appointment of staff of various Devaswoms in Kerala was found as necessary by the State and it was accordingly, that a separate enactment by itself was given shape to as the Kerala Devaswom Recruitment Board Act, 2015. (Act 16 W.P.(C) Nos.27575 of 2006 & 35869 of 2009 22 of 2015); which was brought into force from 1.3.2014. By virtue of said exercise, the field of selection is no more dealt with by the Devaswom Board and going by the specific declaration made by the Supreme Court while remanding the matter on 29.3.2017, that the Bench agreed with the view taken by this Court (that the statutory provision which may have come into force/subsequently could not be ignored for making an appointment), existence of such statute and the relevant provisions thereunder leaving the field of selection and recruitment within the purview of the Kerala Devaswom Recruitment Board cannot be ignored by this Court. In other words, though Section 29A is no more in the statute book, the bar in conducting the selection and appointment by the Devaswom is seen reintroduced by virtue of such separate enactment and it now stands vested with the Recruitment Board with effect from 1.3.2014. In the said circumstances, none of the judicial precedents cited and W.P.(C) Nos.27575 of 2006 & 35869 of 2009 23 sought to be relied on from the part of the petitioners comes to their rescue.
19. It is also relevant to note that in the above decisions cited from the part of the petitioner, the dictum laid down is that the selection already initiated pursuant to a notification issued shall not be adversely affected by the subsequent change in the relevant Rules. This of course is for the reason that the rules of the game cannot be changed after commencement of the game. It is stated by the respondent Devasom that there is no change in the Recruitment Rules in respect of the qualification, age or the experience, as the case may be, and that only the field of selection (which was entrusted with the PSC by virtue of Section 29A of the Act) upon deleting S.29A, has now been taken over and stands entrusted with the Kerala Devaswom Recruitment Board by virtue of the relevant Act/Rules. No precedent has been cited across the Bar to the effect that even under such a circumstance W.P.(C) Nos.27575 of 2006 & 35869 of 2009 24 changing the authority to conduct selection, the principles laid down by the Supreme Court as to the change in the 'recruitment rules' during midway will have to be applied. The rulings relied on by the petitioners that the rules cannot be changed after commencement of the selection, are to ensure fair play in the matter of selection. In so far as the Recruitment Rules are remaining the same, whether the 'agency to conduct selection' has been identified as the PSC or the Kerala Devaswom Recruitment Board, it will not result in any threat to the fair play or that selection to be conducted by the PSC or the Devaswom Recruitment, as the case may be, will be malafide or biased in any manner. As such, this Court does not find any force in the submissions raised in this regard from the part of the petitioners.
20. Incidentally, it is to be noted that no satisfactory explanation is forthcoming from the part of the respondent Board for not reporting the 'substantive W.P.(C) Nos.27575 of 2006 & 35869 of 2009 25 vacancies' to the newly constituted Kerala Devaswom Recruitment Board. It is also stated that the Devaswom Board has been effecting temporary engagements to meet their requirements and this sort of exercise has also come to a stand still, by virtue of which, much hardships are being resulted. This Court is at a loss to understand as to why the Devaswom is not taking prudent and effective steps to report all the substantive vacancies to the Kerala Devaswom Recruitment Board, enabling them to proceed with the selection process despite the fact that nearly three years have gone, after bringing the enabling Act into force. In the said circumstance, there will be a direction to the respondent Devaswom Board to report all the regular and the other substantive vacancies to the Kerala Devaswom Recruitment Board for being filled up, after conducting a selection based on the qualifications and such other credentials as stipulated in the relevant Recruitment Rules. The vacancies shall be identified and W.P.(C) Nos.27575 of 2006 & 35869 of 2009 26 reported as above, at the earliest, at any rate, within three months from the date of receipt of a copy of this judgment.
The Writ Petitions are devoid of merits and have to fail. Accordingly, the writ petitions are dismissed; however with the direction given to the Devaswom Board to report the vacancies to the Kerala Devaswom Recruitment Board as mentioned above. No costs.
P.R. RAMACHANDRA MENON JUDGE SHIRCY.V JUDGE smm