Kerala High Court
Ashok Kumar P. Prasannan vs Travancore Devaswom Board on 5 June, 2024
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 5TH DAY OF JUNE 2024 / 15TH JYAISHTA, 1946
WA NO. 2014 OF 2023
AGAINST THE ORDER/JUDGMENT DATED 08.11.2023 IN WP(C) NO.31814 OF
2023 OF HIGH COURT OF KERALA
APPELLANT(S)/PETITIONERS:
1 ASHOK KUMAR P. PRASANNAN
AGED 46 YEARS, S/O. P.K. PRASANNAN,
KAZHAKOM, VASUDEVAPURAM SUB GROUP,
TRAVANCORE DEVASWOM BOARD, KUDAMALOOR P.O.,
KOTTAYAM, PIN - 686017
2 VENUGOPAL J.
AGED 48 YEARS, S/O. JANARDANAN PILLAI,
THALI, KILIKOLLOOR SUB GROUP, KILIKOLLOOR P.O.,
KOLLAM, PIN - 695004
3 GOPAKUMAR G. NAIR
AGED 43 YEARS, S/O. GOPALAKRISHNAN NAIR,
ASSISTANT MACHINE OPERATOR,
DEVASWOM BOARD PRESS,
TRAVANCORE DEVASWOM BOARD, NANTHANCODU P.O.,
THIRUVANANTHAPURAM, PIN - 695003
BY ADVS.
P.MOHANDAS (ERNAKULAM)
K.SUDHINKUMAR
BHARATH MOHAN
K.P.SATHEESAN (SR.)
SABU PULLAN
GOKUL D. SUDHAKARAN
R.BHASKARA KRISHNAN
RESPONDENT(S)/RESPONDENTS:
1 TRAVANCORE DEVASWOM BOARD
NANTHANCODU, KOWDIAR P.O.,
THIRUVANANTHAPURAM DISTRICT,
REPRESENTED BY ITS SECRETARY, PIN - 695003
WA Nos.2014/2023 & 2017/2023
2
2 THE SECRETARY
TRAVANCORE DEVASWOM BOARD,
NANTHANCODU, KOWDIAR P.O.,
THIRUVANANTHAPURAM DISTRICT, PIN - 695003
3 THE COMMISSIONER
TRAVANCORE DEVASWOM BOARD,
NANTHANCODU, KOWDIAR P.O.,
THIRUVANANTHAPURAM DISTRICT, PIN - 695003
4 THE CULTURAL DIRECTOR
TRAVANCORE DEVASWOM BOARD,
NANTHANCODU, KOWDIAR P.O.,
THIRUVANANTHAPURAM DISTRICT, PIN - 695003
BY ADV G.BIJU G
SR GP SRI T K VIPINDAS
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
05.06.2024, ALONG WITH WA.2017/2023, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WA Nos.2014/2023 & 2017/2023
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 5TH DAY OF JUNE 2024 / 15TH JYAISHTA, 1946
WA NO. 2017 OF 2023
AGAINST THE ORDER/JUDGMENT DATED 08.11.2023 IN WP(C)
NO.33646 OF 2023 OF HIGH COURT OF KERALA
APPELLANT(S)/PETITIONERS:
1 DEEPAKUMAR M.S.
AGED 43 YEARS, S/O. MOHANAN NAIR,
THALI, KLASEKHARAM DEVASWOM, KODUNGANOOR,
SASTHAMANGALAM SUB GROUP, ULOOR GROUP,
THIRUVANANTHAPURAM, PIN - 695013
2 VISHNU G.R.
AGED 33 YEARS, S/O. GOPALAKRISHNAN M.,
WATCHER, KUTTOOR DEVASWOM, KUTTOOR SUB GROUP,
VARKALA GROUP, VAMANAPURAM,
THIRUVANANTHAPURAM, PIN - 695606
3 SUNIL KUAMAR S.
AGED 41 YEARS, S/O. SEKHARAN NAIR M.
THALI, KUTTOOR DEVASWOM, KUTTOOR SUB GROUP,
VARKALA GROUP, VAMANAPURAM,
THIRUVANANTHAPURAM, PIN - 695606
4 SHIJU K.
AGED 37 YEARS, S/O. KRISHNAN NAIR,
KAZHAKAM, ANAKUNNAM DEVASWOM, VILAKKAD SUB GROUP,
MADAVOOR, PALLIKKAL, VARKALA GROUP,
THIRUVANANTHAPURAM, PIN - 695602
5 ANOOPKUMAR B.S.
AGED 42 YEARS, S/O. BHASKARAN PILLAI, THALI,
POZHIKKARA DEVASWOM, KAPPIL SUB GROUP,
VARKALA GROUP, THIRUVANANTHAPURAM, PIN - 695311
WA Nos.2014/2023 & 2017/2023
4
6 SURESHKUMAR M.B.
AGED 46 YEARS, S/O. BALAKRISHNA KURUP, THALI,
ATTIPUZHA DEVASWOM, PERUMTHARA SUB GROUP,
VARKALA GROUP, THIRUVANANTHAPURAM, PIN - 695606
7 VIJAYASREE P.
AGED 47 YEARS, D/O. KRISHNAN NAIR, THALI,
THIRUVARATTUKAVU DEVASWOM,
THIRUVARATTUKAVU SUB GROUP, KOLLAMPUZHA,
ATTINGAL, THIRUVANANTHAPURAM, PIN - 695101
8 PRIYESH V.
AGED 36 YEARS, S/O. VISWANATHA PILLAI, WATCHER,
KADAKKAL DEVASWOM, KADAKKAL SUB GROUP,
KADAKKAL, KOLLAM, PIN - 691536
9 SANTHOSH A.
AGED 43 YEARS, S/O. R. ACHUTHAN PILLAI, WATCHER,
KAVALAYOOR DEVASWOM, KAVALAYOOR SUB GROUP,
VAKARLA GROUP, THIRUVANANTHAPURAM, PIN - 695144
10 GANESH BABU G.
AGED 34 YEARS, S/O. N. GOPINATHAN PILLAI,
WATCHER, KARIMUTTAM DEVASWOM,
KOIPPALLY KARANMA SUB GROUP, MAVELIKKARA GROUP,
ALAPPUZHA, PIN - 690101
11 NISHANTH P.
AGED 45 YEARS, S/O. PARAMESWARAN ACHARI, WATCHER,
KARIMUTTAM DEVASWOM, KOIPPALLY KARANMA SUB GROUP,
MAVELIKKARA GROUP, ALAPPUZHA, PIN - 690101
12 SREEJITH S.
AGED 41 YEARS, S/O. G SURESH, WATCHER,
VARKALA DEVASWOM, VARKALA SUB GROUP,
VARKALA GROUP, THIRUVANANTHAPURAM, PIN - 695141
13 BIJU V.K.
AGED 41 YEARS, S/O. KRISHNANKUTTY PILLAI,
WATCHER, PADANAYARKULANGARA DEVASWOM,
KARUNAGAPPALLY GROUP, KOLLAM, PIN - 690518
14 MADHAVADAS N.
AGED 39 YEARS, S/O. NARAYANAN POTTY M.,
WATCHER, THONNAL DEVASWOM, ULOOR GROUP,
THIRUVANANTHAPURAM, PIN - 695011
WA Nos.2014/2023 & 2017/2023
5
15 SREEKANTH S.
AGED 36 YEARS, S/O. SREEDHARAN PILLAI,
WATCHER, PATHANAMTHITTA DEVASWOM,
PATHANAMTHITTA SUB GROUP, ARANMULA GROUP,
PATHANAMTHITTA, PIN - 689532
16 ANOOP K.
AGED 36, YEARS, S/O. KRISHNAN NAIR, WATCHER,
MALAYALAPUZHA DEVASWOM, MALAYALAPUZHA SUB GROUP,
ARANMULA GROUP, PATHANAMTHITTA, PIN - 689653
17 BIJU S.
AGED 33 YEARS, S/O. SOMASEKHARAN NAIR, WATCHER,
UZHUVATH DEVASWOM, OMALLOOR SUB GROUP,
ARANMULA GROUP, PATHANAMTHITTA, PIN - 689532
18 AJIKUMAR A.
AGED 44 YEARS, S/O. APPUKUTTAN NAIR, WATCHER,
MALAYALAPUZHA DEVASWOM, MALAYALAPUZHA SUB GROUP,
ARANMULA GROUP, PATHANAMTHITTA, PIN - 689653
19 SHAIJU C.S.
AGED 47 YEARS, S/O. SURENDRAN,
WATCHER, MURINGAMANGALAM DEVASWOM,
MURINGAMANGALAM SUB GROUP, ARANMULA GROUP,
KONNY, PATHANAMTHITTA, PIN - 689691
20 BILAHARI SHARMA S.V.
AGED 38 YEARS, S/O. S.D. VASUDEVA SHARMA,
WATCHER, KURUNGAZHAKAVU DEVASWOM,
POOZHIKUNNAM SUB GROUP, ARANMULA GROUP,
PATHANAMTHITTA, PIN - 689653
21 ARUN T. DIVAKAR
AGED 40 YEARS, S/O. T.S. DIVAKARAN, WATCHER,
PEERUMEDU DEVASWOM, PEERUMEDU SUB GROUP,
MUNDAKAYAM GROUP, IDUKKI, PIN - 685501
22 S.B. SREEKUMAR
AGED 46 YEARS, S/O. K.G. BHASKARAN NAIR,
WATCHER, KAIPUZHA DEVASWOM,
VALIYAKOYIKKAL SUB GROUP, ARANMULA GROUP,
PATHANAMTHITTA, PIN - 686602
WA Nos.2014/2023 & 2017/2023
6
23 DHANESHKUMAR N.
AGED 3 YEARS, S/O. NATESAN ACHARI,
THALI, IMPIRIYANKAVU DEVASWOM, PULIYOOR SUB
GROUP, ARANMULA GROUP, PULIYOOR,
ALAPPUZHA, PIN - 689126
24 JAYALAKSHMI T.
AGED 43 YEARS, D/O. MURUKAN ACHARI, THALI,
CHENGANUNOOR DEVASWOM, CHENGANNOOR SUB GROUP,
ARANMULA GROUP, PATHANAMTHITTA, PIN - 689121
25 ARUNKUMAR A.S.
AGED 42 YEARS, S/O. APPUKUTTAN PILLAI, WATCHER,
THAMARAKUDY DEVASWOM, THAMARAKUDY SUB GROUP,
KOTTARAKARA GROUP, KOLLAM, PIN - 691506
26 DIPEESH KUMAR D.
AGED 43 YEARS, S/O. K.N. DIVAKARAN, WATCHER,
OMALLOOR DEVASWOM, OMALLOOR SUB GROUP,
ARANMULA GROUP, PATHANAMTHITTA, PIN - 689647
BY ADVS.
P.MOHANDAS (ERNAKULAM)
K.SUDHINKUMAR
SABU PULLAN
GOKUL D. SUDHAKARAN
R.BHASKARA KRISHNAN
BHARATH MOHAN
LINDONS C.DAVIS
K.P.SATHEESAN (SR.)
RESPONDENT(S)/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY,
FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 TRAVANCORE DEVASWOM BOARD
REPRESENTED BY ITS SECRETARY, KOWDIAR P.O.,
THIRUVANANTHAPURAM, PIN - 695003
3 THE SECRETARY
TRAVANCORE DEVASWOM BOARD, NANTHANCODU,
KOWDIAR P.O., THIRUVANANTHAPURAM, PIN - 695003
WA Nos.2014/2023 & 2017/2023
7
4 DEVASWOM COMMISSIONER
TRAVANCORE DEVASWOM BOARD, NANTHANCODU,
KOWDIAR P.O., THIRUVANANTHAPURAM, PIN - 695003
5 THE ACCOUNTS OFFICER
TRAVANCORE DEVASWOM BOARD, NANTHANCODU,
KOWDIAR P.O., THIRUVANANTHAPURAM, PIN - 695003
BY ADV G.BIJU G
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
05.06.2024, ALONG WITH WA.2014/2023, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WA Nos.2014/2023 & 2017/2023
8
JUDGMENT
[WA Nos.2014/2023, 2017/2023] Amit Rawal, J.
1. This order of ours shall dispose of two writ appeals; W.A.No.2014/2023 and W.A.No.2017/2023 against the common judgment dated 08.11.2023 arising out of two writ petitions; W.P.(C)No.31814/2023 and W.P. (C)No.33646/2023 respectively whereby following claims in the writ petitions have been declined:
W.P.(C)No.31814/2023
1. To call for the original of Exhibit P-6 and quash the same by a writ of Certiorari
2. To Issue a writ of mandamus or any other writ, order or direction commanding the respondents permit the petitioners to continue in Statutory Pension Scheme as ordered in Exhibit P-5.
3. To declare the petitioners are eligible and entitled to continue in the Statutory Pension Scheme under the service of the respondent Board.
4. To issue a writ of mandamus commanding the respondents to extend the benefit Exhibit P-5 to the petitioners.
5. To pass such other orders deems, fit to pass in the interest of justice, equity and good conscience.
WA Nos.2014/2023 & 2017/2023 9
6. It is prayed that the copies of the Exhibits Nos. 1 to 6 are in Malayalam. dispensing with English Translation which may be accepted and allow the above W.P. (C) with costs.
W.P.(C)No.33646/2023
i) to issue a Writ of Certiorari or such other appropriate writ, order or direction quashing Ext.P5 Circular ROC No.145/13/Est-l dated 13-09-2023 issued by the 3 rd respondent as it is arbitrary and illegal;
ii) to issue a Writ of Mandamus or order or direction to respondents 2 and 3 to follow Ext. P4 order issued by them considering the entire aspects including Ext. P1 Judgment of this Hon'ble Court;
iii) to declare that the petition eventitled to continue under the Statutory Pension Scheme since they were the vacancies which were in existence prior to 1-4- 2013 even if the appointment order is issued after the said date as ordered by this Hon'ble Court in Ext. P1 Judgment;
iv) to issue such other appropriate Writ, Order or direction as is deemed just and necessary in the circumstances of the case.
v) It is humbly prayed that this Hon'ble Court may be pleased to dispense with filing of the translation of vernacular documents."
2. Appellants-petitioners before the Single Bench were aggrieved of the action of the Travancore Devaswom WA Nos.2014/2023 & 2017/2023 10 Board in stopping the applicability of Pension Scheme and introduction of National Pension Scheme and thereafter attempted to recover the amount of salary on the premise that the petitioners were appointed against the vacancy which arose prior to 01.04.2013.
3. The date 01.04.2013 is important to be noticed for, on that date, previous Pension Scheme was replaced by the National Pension Scheme.
4. The steps taken by the Devaswom Board for filling up the various posts in respect of the vacancies arose on 09.02.2011 and the names of petitioners were figured in the rank list published in 2012. In respect of the aforementioned selection, there was a litigation at the instance of the affected parties, who approached this Court vide W.P.(C)No.8505/2016 including various writ petitions. Single Bench vide judgment dated 01.04.2016 rejected their prayers. Matter was taken up before the Division Bench in writ appeals and vide common judgment dated 27.11.2017 the judgment of the Single Bench was set aside WA Nos.2014/2023 & 2017/2023 11 and direction was issued to the respondents to prepare a list of candidates included in the three ranked lists, who had not been appointed as on 08.07.2015 by issuing individual notices to them and thereafter fill up the vacancies in the category of Watcher, Part-time Kazhakam and Part-time Thali. Besides that, notices would also be published in the daily newspapers (vernacular in circulation) and the entire exercise to be completed by 03.04.2018. The Division Bench noticed that by that time, appointment of 74 candidates had been done whom shall be allowed to continue in service on provisional basis on daily wages. Devaswom Board undertook the exercise. Resultantly, appointment letters were issued in 2021 to petitioners in the present writ petitions. Since they have been covered under the National Pension Scheme, challenged the action of the respondents as per the prayers extracted above. Learned Single Bench vide judgment impugned rejected the claim by taking into consideration Rule 2(1) of the Kerala State and Subordinate Service WA Nos.2014/2023 & 2017/2023 12 Rules, 1958, holding that a person is said to be appointed in service only after he discharges for the first time the duties attached to the post to which is appointed.
5. Learned Senior Counsel, Mr.K.P.Satheesan submitted that petitioners were not at fault in not offering the appointment but owing to the litigation as noticed above, even if they have been appointed in 2021 they have to be covered under the old Pension Scheme. No fault can be attributed to the appellants-petitioners in case the respondents had issued the appointment letter belatedly. It is in that background cause of action accrued only when appointment was offered.
6. On the other hand, learned counsel appearing on behalf of the respondents brought to the notice of this court the direction of the Division Bench in paragraph 14 of the judgment dated 27.11.2017 in W.A.No.1011/2016 and connected cases Ext.P1, to fill up the vacant posts that were available and in existence during the currency of the ranked lists, during the period from 09.07.2012 to WA Nos.2014/2023 & 2017/2023 13 08.07.2015.
7. We have heard the learned counsel for the parties and appraised the paper books and are of the view that petitioners were not properly advised for seeking the redressal of grievance evident from the prayer extracted above, but ought to have sought clarification by moving an interim application particularly in view of the observations recorded in paragraph 14 of the judgment of the Division Bench. The same reads as under:
"14. As the impugned orders were passed without affording the petitioners an opportunity to avail the benefit of the orders passed by the learned single Judge in C.O. (C).No.1443 of 2015, we are of the opinion that the writ petitions should not be thrown out on the ground of non-
joinder of necessary parties. As stated earlier, all the candidates appointed as per Ext.P5 order to the post of Watcher and to the post of Part-time Kazhakam are on the party array. It is only as regards the post of Part-time Thali that 11 among the 23 candidates appointed, are not on the party array. The candidates ranked above them and below them are on the party array. The petitioners in these writ petitions are admittedly candidates ranked above the said 11 persons. In such circumstances, we are not persuaded to hold that non-joinder of the said 11 candidates disentitles the petitioners to the grant of relief. WA Nos.2014/2023 & 2017/2023 14 We are also likewise of the opinion that the learned single Judge erred in dismissing W.P.(C).No.1325 of 2016 and connected cases on the ground that the petitioners have invoked the jurisdiction of this court after the expiry of the ranked list. Since the impugned orders came into existence only after the expiry of the ranked lists, the expiry of the ranked lists cannot in our opinion be held out as a reason to non-suit them. In our considered opinion the Board should issue individual memos to all the candidates included in the three ranked lists, who had not been appointed as on the date of expiry of ranked lists namely, 8.7.2015, for appointment to the post of Watcher, Part-time Kazhakam and Part-time Thali and afford them an opportunity to appear before the Commissioner along with their testimonials and documents and after verifying their eligibility, appoint them to the vacant posts that were available and in existence during the currency of the ranked lists, namely, during the period from 9.7.2012 to 8.7.2015. "
8. There is no quarrel to the fact that the posts were lying vacant and were manned by the temporary employees in view of the direction of the Court and Devaswom Board had taken number of years in complying with the directions and ultimately offered the post in 2021. We would refrain to comment further upon the merit of the matter as it would WA Nos.2014/2023 & 2017/2023 15 be in the domain of the appellants to seek remedy in an appropriate forum. Thus the writ petitions are held to be not maintainable.
Writ appeals are disposed of in the aforementioned terms.
Sd/-
AMIT RAWAL JUDGE Sd/-
EASWARAN S. JUDGE nak