Kerala Devaswom Recruitment Board vs Mayadevi K.S on 6 April, 2022

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Kerala High Court

Kerala Devaswom Recruitment Board vs Mayadevi K.S on 6 April, 2022

Since both these intra court appeals have arisen out of the very same impugned common judgment dated 24.06.2021, rendered by the learned Single Judge, in the instant W.P.(C) No.10135/2021, hence these appeals are disposed of on the basis of this common judgment.

2. Heard Sri. P. B. Krishnan, learned counsel appearing for the appellant in W.A.No.1042/2021, Sri. V. V. Nandagopal Nambiar, learned Standing Counsel and Sri.P.C. Sasidharan, learned Advocate, both appearing for the appellant in W.A.No.1241/2021, Sri. K. Jaju Babu, learned Senior Counsel, instructed by Sri. Brijesh Mohan, learned counsel appearing for respondents 1 to 3 in both the appeals/writ petitioners, Sri. Antony Mukkath, learned Senior Government Pleader, appearing for the respondent State Government in these cases, W.A Nos.1042& 1241 of 2021 ..2..

and Sri. T. K. Vipindas, the learned Standing Counsel for the respondent Guruvayur Devaswom Board, appearing in these cases.

3. The prayers in the instant W.P.(C)No.10135/2021 are as follows:-

"i. issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents 2 and 3 to promote the petitioners as Manager in accordance with Regulation 16 of the Guruvayur Devaswom Employees Regulations 1983 as per Ext.P1 forthwith.

ii. issue a writ of certiorari or any other appropriate writ, order or direction, calling for Ext.P6 and quash the same to the extent respondents 6 to 11 are selected for promotion to the post of Manager in supersession to the petitioners. iii. Declare that the selection to the post of Manager as per Ext.P6 is illegal and in clear violation to Regulation 16 of Ext.P1 Regulations and thereby unsustainable.

iv. Declare that Ext.P7 and P9 are illegal and ultravirus the provisions of Kerala Devaswom Recruitment Board Act and Guruvayur Devaswom Act 1978 as well as Ext.P1 Regulations and thereby inapplicable in the matter of promotions under the Guruvayur Devaswom.

v. issue a writ of certiorari or any other appropriate writ, order or direction, calling for Ext.P7 and P9 and quash the directions contained therein in respect of promotions in Guruvayur Devaswom governed by Ext.P1 Guruvayur Devaswom Employees Regulations 1983.

vi. issue a writ of certiorari or any other appropriate writ, order or direction, calling for the records leading to Ext.P6 and quash the all selection to the post of Manager. vii. issue such other and further reliefs as this Honourable Court may deem fit and proper in the facts and circumstances of the case;

and viii. award costs to the petitioners."

W.A Nos.1042& 1241 of 2021 ..3..

4. The case set up in the W.P.(C) is broadly as follows:-

That, the three writ petitioners (contesting respondents 1 to 3 in both the appeals) are holding the post of Assistant Managers in the respondent Guruvayur Devaswom Board, their probation in the cadre of Assistant Managers have been duly declared and that they have all the eligibility conditions including passing of obligatory test qualifications for being considered for promotion to the next higher category post of Manager. That, the Guruvayur Devaswom Employees Regulations, 1983, have been statutorily framed under Section 39 of the Guruvayoor Devaswom Act, 1978, with the prior approval of the State Government at Ext.P1. That, Regulation 16 thereof deals with promotion, which reads as follows:-

"Regulation 16. Promotion:-

(a) Probationers working in any post shall be eligible for promotion to a higher post as per provisions applicable to employees of State Government.

(b) All promotions or appointments by transfer, shall, subject to the provisions of these regulation, be made by the Administrator after obtaining approval of the managing Committee in accordance with seniority subject to the persons being considered suitable for the post."

5. That, as per the Regulation 4, the appointing authority for all the posts in the Guruvayur Devaswom Service shall be the Managing Committee. That, on account of the insistence of the W.A Nos.1042& 1241 of 2021 ..4..

respondent State Government and the respondent Kerala Devaswom Recruitment Board, promotion to the post of Manager was unlawfully taken over by the Departmental Promotion Committee (DPC), said to have been constituted under the Kerala Devaswom Recruitment Board Act, 2015. Further that the said DPC, without considering the confidential records for all the three previous years in question and by placing reliance on adverse entries which are uncommunicated to the writ petitioners, have chosen to deny them promotions. Further that confidential records for only the year 2020 has been taken into account. Further that, the said stand has been taken by the respondent- Recruitment Board on the premise that appointments to all the posts in the Guruvayur Devaswom Service other than the hereditary posts, etc. can be made only at the instance of the said recruitment Board. The said stand of the Recruitment Board is illegal and ultravires, inasmuch as the Kerala Devaswom Recruitment Board Act, 2015, confers jurisdiction to the said Recruitment Board only for making selection list for direct recruitment to the various posts in the Guruvayur Devaswom W.A Nos.1042& 1241 of 2021 ..5..

Service other than the hereditary posts, etc. That, Ext.P6 is the minutes of the DPC, constituted under the Kerala Devaswom Recruitment Board Act, forwarded by the 5th respondent in the W.P.(C) (DPC) to the 3rd respondent (Administrator, Guruvayur Devaswom Managing Committee) and that the said proceedings of the DPC is liable to be quashed. That, the sole authority to consider the promotions of the writ petitioners to the post of Manager is the respondent Guruvayur Devaswom Managing Committee so long as regulations 4 & 16 of the Guruvayur Devaswom Employees Regulation, 1983, are not statutorily amended in the manner known to law. That, the said regulations have not been amended. Therefore the present impugned proceedings of the DPC, constituted under the Devaswom Recruitment Board Act at Ext.P6, is ultravires the provisions contained in the Kerala Devaswom Recruitment Board Act, 2015 and the Kerala Devaswom Recruitment Board Rules, 2015, etc. During the pendency of the W.P.(C), the writ petitioners have produced additional documents as per Exts.P10 to P14 in the W.P. (C) along with I.A.No.5/2021 in the above W.P.(C). It is averred in W.A Nos.1042& 1241 of 2021 ..6..

the affidavit filed along with the said I.A. that later all issues were considered by the Managing Committee of the respondent Guruvayur Devaswom Board, in the meeting held on 26.04.2021, all the members of the Managing Committee, except the Chairman have resolved to reject the recommendation contained in Ext.P6 and give promotions to employees who joined Devaswom service prior to 2015, in accordance with the abovesaid Regulations and that Ext.P13 is the copy of the decision rendered on 26.04.2021 by the respondent Guruvayur Devaswom Managing Committee.

6. Per contra, the contention of the respondent Recruitment Board and the respondent State Government is that on and with effect from 01.03.2014, (the date of coming into force of the Kerala Devaswom Recruitment Board Act, 2015), by virtue of the non- obstante clause contained in Section 9(1)(i) of the said Act, notwithstanding anything contained in any other existing Act or Rules or Regulations or orders or judgment or decree in respect of the appointment of candidates to the posts in the Devaswom Board, the Board shall prepare select list for the appointment of candidates to various posts other than the heriditary posts and W.A Nos.1042& 1241 of 2021 ..7..

posts in the aided educational institutions in the Devaswom Boards as per the provisions of the said Act, Rules and Regulations, etc. Hence, it has been contended by them that, appointments to all the posts in various Devaswoms, including the Guruvayur Devaswom Board, can be effectuated only in accordance with the Kerala Devaswom Recruitment Board Act, 2015 and that even promotions to the instant post of Manager can be made only through the Departmental Promotion Committee, constituted as per the Rules framed under the Kerala Devaswom Recruitment Board Act, 2015, etc.

7. The learned Single Judge, after hearing both sides, has noted the specific submission made on behalf of the writ petitioners that, subsequently, by Ext.P13 proceedings dated 26.04.2021, the decision has been taken by the respondent Guruvayur Devaswom Managing Committee to reject the recommendations of the DPC at Ext.P6, to make promotions on the basis of the Guruvayur Devaswom Employees Regulations, 1983 and also to inform the Chairman of the respondent Devaswom Recruitment Board, accordingly, etc., though a dissent W.A Nos.1042& 1241 of 2021 ..8..

has been recorded therein on behalf of the Chairperson of the Committee. The learned Single Judge also noted the contention of the writ petitioners that, since Ext.P13 decision has been taken by the Managing Committee on the basis of majority, the same will have to be implemented.

8. Per contra, the learned Standing Counsel for the Guruvayur Devaswom Board submitted that, it may be true that, Ext.P13 decision has been taken by the Managing Committee on 26.04.2021, but since it has been issued on the basis of majority, the same will necessarily have to be implemented as per law and that as it can be enforced only as per law, Ext.P13 has been forwarded to the respondent Devaswom Recruitment Board for further action. Whereas the learned Standing Counsel for the respondent Devaswom Recruitment Board submitted that, if the Guruvayur Devaswom Board has forwarded all the relevant and necessary papers, like the recruitment papers, to the recruitment Board, then they will apposite steps for implementation of the same, following the Kerala Devaswom Board Recruitment Rules.

9. The learned Single Judge has, in paragraph No.5 of the W.A Nos.1042& 1241 of 2021 ..9..

impugned judgment, noted that the Managing Committee of the Guruvayur Devaswom Board has taken a decision, as per Ext.P13, to effect promotion, based on the 1983 Regulations and that all further actions, based on Ext.P13 resolution, will be within the liberty of the respondent Guruvayur Devaswom Board to forward as per law. The learned Single Judge, as per the impugned judgment rendered on 24.06.2021, has thus finally disposed of the instant W.P.(C) No.10135/2021, as per paragraph No.6 thereof, that there is no necessity for the Court to consider any of the rival contentions impelled in the case at this stage, since it is upto the respondent Devaswom Board to now implement Ext.P13 decision as per law. Hence, the learned Single Judge, as per the impugned judgment, has ordered that the submission that, Ext.P13 resolution has been adopted by the Managing Committee of the Devaswom Board, has been recorded and the Devaswom Board has been granted liberty to implement it, in the manner and following the procedure applicable, etc.

10. Later, the writ petitioners have instituted a contempt of Court proceedings as CoC No.1081/2021 (arising out of the above W.A Nos.1042& 1241 of 2021 ..10..

judgment in W.P.(C) No.10135/2021), before the learned Single Judge. The learned Single Judge has rendered the judgment on 30.07.2021 disposing of the abovesaid CoC No.1081/2021 by holding in paragraph No.8 thereof that the abovesaid impugned judgment in the W.P.(C) has not given any affirmative directions therein and that the only liberty that had been granted to the respondent Guruvayur Devaswom Board is to take action as per Ext.P13 resolution as it is legally permissible and after recording the decision of the respondent Devaswom Board that they have entrusted the matter with the 1st respondent therein (Administrator of the Guruvayur Devaswom Board) to comply with the directions of this Court as per the impugned judgment in the W.P.(C). The learned Single Judge has noted in paragraph No.9 of the judgment of the Contempt Case that what has been done as per the impugned Ext.P13 proceedings dated 26.04.2021 by the Guruvayur Devaswom Managing Committee is that the recommendations of the DPC at Ext.P6 have been rejected and further that a decision has been taken in Ext.P13 that employees in the Guruvayur Devaswom Board, who have entered into service W.A Nos.1042& 1241 of 2021 ..11..

prior to 2015, be granted promotion as per the Guruvayur Devaswom Employees Regulations, 1983. The learned Single Judge has closed the said Contempt of Court Case granting liberty to the petitioners to move the Managing Committee of the Guruvayur Devaswom Board, appropriately, based on Annexure-C therein (Resolution No.2 dated 01.07.2021, issued by the Administrator), in which event the said authority is left with the liberty to take appropriate action as they are advised in terms of law and after following the due procedure, etc.

11. Initially, W.A.No.1042/2021 has been filed before this Court on 27.07.2021, which came for admission before this Court on 12.08.2021. The appellant in W.A.No.1042/2021 is the Administrator of the Guruvayur Devaswom Managing Committee and his case is that he has not filed the appeal against any of the decisions of the Guruvayur Devaswom Managing Committee but that his predecessor, as the Administrator, had filed an affidavit or undertaking before the Apex Court in an SLP (filed against the judgment of the Division Bench of this Court in W.A.No.481/2016 and connected cases), that all appointments to the various posts in W.A Nos.1042& 1241 of 2021 ..12..

the Guruvayur Devaswom Board other than the hereditary posts, etc., will be made only in accordance with the procedure envisaged in the Kerala Devaswom Recruitment Board Act, 2015, in view of Section 9(1) of the said Act and that the resolution of the Managing Committee of the Guruvayur Devaswom Board at Ext.P13 may go against the said undertaking and that the appellant, as the Administrator, may have to face contempt proceedings for violation of the abovesaid undertaking, etc. Further, on merits, it has been contended by the appellant that it has been held by the Division Bench of this Court in the judgment rendered on 31.08.2017 in W.A. No.481/2016 (K. Ajitha & Others v. Guruvayur Devaswom Managing Committee & Others), more particularly in para No.60 thereof, that in view of the non-obstante clause contained in Sec.9(1)(i) of the Kerala Devaswom Board Recruitment Act, 2015, irrespective of the provisions in the Guruvayoor Devaswom Act or the Guruvayur Devaswom Employees Service Regulations, after commencement of the Kerala Devaswom Recruitment Board Act, 2015, recruitment to various Devaswoms in Kerala can be effected only through the machinery W.A Nos.1042& 1241 of 2021 ..13..

under the Kerala Devaswom Recruitment Act, 2015. Hence, it has been contended by the appellant that, even promotions to various posts in the Guruvayur Devaswom Board can, henceforth, be made only in accordance with the provisions contained in the Kerala Devaswom Recruitment Board Act, 2015, and the Rules framed thereunder and the provisions contained in the said 2015 Act will override the provisions contained in the Guruvayur Devaswom Board Act and the Regulations framed thereunder, to that extent. Whereas, the contention of the contesting respondents 1 to 3 therein/writ petitioners was to the effect that the said provisions, contained in the Kerala Devaswom Recruitment Board Act, would be applicable only for preparation of select list for various appointments, which can only be in the case of direct recruitment and not on the basis of promotions or by-transfer appointments, etc. for in-service employees, etc.

12. This Court, then passed an interim order on 12.08.2021 in W.A. No.1042/2021, to the limited extent of staying the operation and enforcement of the judgment dated 30.07.2021, rendered by the learned Single Judge, in CoC No.1081/2021 W.A Nos.1042& 1241 of 2021 ..14..

(arising out of the instant W.P.(C)), for the time being and no direction has been issued by this Court in these appeals, staying the operation of the judgment in the W.P.(C). Thereafter, W.A. No.1042/2021 has been listed along with W.A. No.1241/2021, filed at the instance of the Devaswom Recruitment Board.

13. These appeals have been heard on various occasions and certain subsequent developments have also happened, more particularly, in relation to the issuance of Anx.R1(a) G.O.(Rt) No.3244/2021/RD dated 26.09.2021, issued by the respondent State Government in the Revenue (Devaswom) Department, whereby, Ext.P13 decision of the respondent Guruvayur Devaswom Managing Committee has been canceled and consequentially Anx.R1(b) proceedings dated 29.09.2021 has also been issued by the Administrator, etc. Those aspects of the matters will be dealt with in the subsequent portions of this judgment.

14. The main issue to be resolved in these appeals is as to whether all appointments to the various posts, other than the hereditary posts, etc., be it by the method of direct recruitment, promotion or by-transfer, etc., can be effectuated only in W.A Nos.1042& 1241 of 2021 ..15..

accordance with the provisions contained in the Kerala Devaswom Recruitment Board Act, 2015 and the Rules framed thereunder or whether the said function of the Devaswom Recruitment Board is confined only to direct recruitment, etc. It may be pertinent to make a brief reference to the relevant provisions contained in the Guruvayoor Devaswom Act, 1978, the Guruvayur Devaswom Employees Regulations, 1983, framed under the above Act, the relevant provisions of the Kerala Public Service Commission (Additional Functions as Respects the Administrative Services under Devaswom Boards) Act, 2008, as well as the relevant provisions contained in the Kerala Devaswom Recruitment Board Act, 2015 and the Rules framed thereunder. It will also be pertinent to refer to the legal position settled by the Apex Court in the leading case laws relating to the distinction between selection posts and non-selection posts in promotions and by-transfer appointment especially about the criteria of merit and ability/merit cum suitability, to be resorted to while making promotion and by- transfer appointments to selection posts.

W.A Nos.1042& 1241 of 2021 ..16..

15. Relevant provisions of the Guruvayoor Devaswom Act and the Regulations framed thereunder:

Sec.19 of the Guruvayoor Devaswom Act, 1978, deals with appointments of officers and employees. Sec.19(1) stipulates that appointments of all officers and other employees of the Devaswom shall be made by the committee. Sec.2(c) thereof defines 'committee' to mean 'Guruvayoor Devaswom Managing Committee, constituted under Sec.3. Sec.19(3) further stipulates that selection of officers and other employees of the Devaswom may be made by sub-committees constituted by the Committee from among its members. The proviso thereto may not be very relevant for our purpose. Sec.19(4) further mandates that subject to the provisions of Sub-Secs (1), (2) & (3) thereof, the procedure for selection and appointment of officers and other employees of the Devaswom shall be such as may be determined by the Committee by regulations made in this behalf. Sec.39 thereof deals with framing of regulations. Sec.39(1) stipulates that the Committee may, subject to the approval of the Government, make regulations not inconsistent with the provisions of the said Act and W.A Nos.1042& 1241 of 2021 ..17..

the rules made thereunder, to provide for the manner in which duties imposed on it under the said Act and its functions thereunder shall be discharged. Sec.39(2) would further stipulate that in particular, and without prejudice to the generality of the foregoing power, such regulations may provide for- (a) the conditions of service of the Administrator and the other officers and employees of the Devaswom, etc.

16. Ext.P1 is a copy of the Guruvayur Devaswom Employees Regulations, 1983, framed under Sec.39 of the abovesaid Act. Regulation 4 thereof deals with appointing authority and it is mandated therein that the appointing authority, for all the posts in the Guruvayur Devaswom Service, shall be the Managing Committee. Regulation 5 deals with the method of appointments, which conceive of direct recruitment, which shall be made after due publication of notices inviting applications and eligible persons shall be called for the written test or interview or both and selection has to be made on the basis of merit. Regulation 5(b) stipulates that, in the case of appointments by promotions or direct recruitment, direct recruitment shall be resorted to only if suitable W.A Nos.1042& 1241 of 2021 ..18..

qualified candidates for promotion are not available. Regulation 5(c) stipulate that the Managing Committee shall decide the method of appointment in the case of temporary post, as and when required. Proviso to Regulation 5 is very important and the same reads as follows:-

"Provided that the post of Executive Engineer, Assistant Executive Engineer, Assistant Engineer, Deputy Administrator and Manager shall be treated as selection categories. Appointment to the selection category shall be made by the Managing Committee from among members eligible for appointment to such category on the basis of merit and ability. Seniority be considered only where merit and ability are approximately equal."

17. The table given under Regulation 5 deals with the various posts and the method of appointment. Category No.3 thereof is the post of Manager and it is stipulated therein that the method of appointment, by promotion to the post of Manager, shall be promotion from the feeder category of Assistant Manager. Further, in the subsequent table, dealing with qualifications, the qualifications for category No.3, post of manager, are also stipulated therein. Regulation 16 reads as follows:-

"16. Promotion:-

(a) Probationers working in any post shall be eligible for promotion to a higher post as per provisions applicable to employees of State Government.

W.A Nos.1042& 1241 of 2021 ..19..

(b) All promotions or appointment by transfer shall, subject to the provisions of these regulation, be made by the Administrator after obtaining approval of the managing Committee in accordance with seniority subject to the persons being considered suitable for the post."

18. Clause (b) of Regulation 16, envisages that all promotions or appointments by transfer shall, subject to the provisions of the above regulations, be made by the Administrator, after obtaining approval of the Managing Committee, in accordance with seniority, subject to the persons being considered suitable for the post. So, Regulation 16(b), by itself, would give an impression as if all promotions or all appointments by transfer will be on the basis of seniority cum suitability. However, the proviso to regulation 5 speaks about selection categories of posts.

19. A cumulative and combined reading of regulation 16(b), read with the proviso to regulation 5, makes it clear that the posts of Executive Engineer, Assistant Executive Engineer, Assistant Engineer, Deputy Administrator and Manager shall be treated as selection categories of posts and for effecting such promotions to selection categories, as above, the appointment shall be made by the Managing Committee, from among its members eligible for appointment to such category, on the basis of merit and suitability W.A Nos.1042& 1241 of 2021 ..20..

and seniority being considered only where merit and ability are approximately equal. So, the cumulative impact of these provisions is that, promotions and by-transfer appointments to all posts, other than selection categories, would be on the basis of seniority, subject to suitability. But promotions to the selection categories of the 4 posts above, shall be only on the basis of merit and ability and seniority can be considered only when merit and ability are approximately equal.

20. The provisions contained in the Kerala Public Service Commission (Additional Functions as Respects the Administrative Services under the Devaswom Boards) Act, 2008 (State Act 19 of 2008), enables the PSC to exercise certain additional functions, as respects the administrative services under certain Devaswom Boards. Sec. 2(a) thereof defines "Devaswom Board" to mean the Travancore Devaswom Board and the Cochin Devaswom Board.

21. So, it can be seen that the said State Act 19 of 2008 was not, in any manner, made in relation to the appointments in the Guruvayur Devaswom Board. More particularly, Sec.3(1) & W.A Nos.1042& 1241 of 2021 ..21..

Sec.3(2) would make it clear that the duty of the Public Service Commission is to prepare select list of candidates for appointment by direct recruitment of all officers and employees in the Administrative services of the two Devaswom Boards mentioned therein. This is clear from a simple reading of Sec.3(i) as well as Sec.3(2)(a) & Sec.3(2)(b). So, it can be seen that, the main function entrusted to the Public Service Commission was only in relation to making appointments, by the method of direct recruitment, to the posts of all officers and employees in the administrative services of the two Devaswom boards mentioned therein. The Kerala Public Service Commission (Additional Functions as Respects the Administrative Services under the Devaswom Boards) Rules, 2009, were also then framed under the said Act. Later, the Travancore Cochin Hindu Religious Institutions (Amendment Act) 2014 (State Act 1 of 2014) was framed. Sec. 16 thereof deals with repeal of the abovesaid State Act 19 of 2008 and it is stipulated therein that the Kerala Public Service Commission (Additional Functions as respects the Administrative Services under Devaswom Boards) Act, 2008 (State Act 19 of 2008) stands thereby repealed, etc. Later, it W.A Nos.1042& 1241 of 2021 ..22..

appears that the State legislature has repealed the abovesaid Act 19 of 2008, entrusting the functions of selections in direct recruitment to the said two Devaswom Boards.

22. We have referred to the provisions contained in the abovesaid Kerala Public Service Commission (Additional Functions as respects the Administrative Services under Devaswom Boards) Act, 2008, only to highlight the aspect that, the main function entrusted with the KPSC, as per the said Act, was only in relation to making selection by the method of appointment of direct recruitment to the various posts of officers and employees under the Devaswoms mentioned therein. In other words, the entrustment of the functions to the PSC, as per the said Act, was not in relation to the method of appointment, other than direct recruitment. That is to say, the abovesaid State Act 19 of 2008, does not, in any manner, deal with other methods of appointment like promotion, by-transfer, etc.

23. The relevant provisions of the Kerala Devaswom Recruitment Board Act, 2015 and the Rules framed thereunder:-

The Kerala Devaswom Recruitment Board Act, 2015 W.A Nos.1042& 1241 of 2021 ..23..

(State Act 16 of 2015) has been deemed to have come into force on 1st March, 2014. The preamble to the said Act makes it clear that the said enactment has been made to "provide for constitution of an autonomous Devaswom Recruitment Board for preparing select list of candidates for the appointments in various posts other than hereditary posts and the posts in the aided educational institutions in Devaswom Boards of the State of Kerala and for matters Connected therewith or incidental thereto (emphasis supplied)". Section 2(b) defines Devaswom Board to mean the Travancore Devaswom Board or the Cochin Devaswom or the Malabar Devaswom Board or Guruvayoor Devaswom Managing Committee or Koodalmanikyam Devaswom Managing Committee. Section 2(a) defines "Board" to mean "the Kerala Devaswom Recruitment Board constituted under Section 3 of the said Act." Section 2(g) defines "prescribed" to mean 'prescribed by the Rules or Regulations made under that Act."

24. The constitution of the Kerala Devaswom Recruitment Board is dealt with in Section 3 thereof. The functions and powers W.A Nos.1042& 1241 of 2021 ..24..

of the Recruitment Board are dealt with in Chapter III of the said Act. Sec.9, appended under Chapter III, deals with functions of the Recruitment Board and the same provides as follows:-

"9. Functions of the Board.- (1) The Board shall have the following functions, namely:-

(i) notwithstanding anything contained in any other existing Act or Rules or Regulations or orders or judgment or decree in respect of the appointment of candidates to the posts in the Devaswom Board, the Board shall prepare select list for the appointment of candidates to various posts other than the herideary posts and posts in the aided educational institutions in the Devaswom Boards as per the provisions of this Act, Rule and Regulations ;

(ii) to invite applications, to conduct written examination or interview or written examination and interview to prepare select list for selection to the various posts other than the heciditary posts under the Devaswom Board, as may be prescribed, as and when the requisition for such examination is received from the concerned Devaswom Board;

(iii) to make all required arrangements in connection with the examination including the preparation of question papers, supervision of examinations and valuation, conduct of interview and preparation of the select list;

(iv) to conduct any other examination relating to Devaswom Board as entrusted by the Government;

(v) to call for and obtain details regarding the examination from the concerned Devaswom Board;

(2) The Board shall be responsible for the proper conduct of the examination, to maintain the secrecy in the preparation of question paper, valuation, preparation of the list of candidates to be interviewed and preparation of the final select list to be furnished to the Devaswom Board and other connected matters and for the safe custody of the records pertaining to the examinations.

(3) (i) The Board shall conduct written examination to the candidates who had submitted applications and prepare list, after conducting interview or written examination and interview;

(ii) Examination may be conducted for any Devaswom Board or for all the Devaswom Boards in suitable manner for the said purpose;

W.A Nos.1042& 1241 of 2021 ..25..

(iii) An applicant, who applies for more than one post or to more than one Devaswom Boards, shall not be denied the right to appear in more than one examination.

Provided that if the candidate applies for examinations to various posts being conducted by the Board and in the circumstances of conducting exarminations to more than one post by the Board on the same day the right referred in 3(iii) shall not be available to such candidate. (4) The procedure to be followed by the Board, in respect of the invitation of applications, conduct of written examination, preparation of list of candidates to be interviewed, conduct of interview and preparation of the select list to various posts in the Devaswom Board, shall be such may be prescribed.

(5) The Board may issue general direction to the Devaswom Boards incidental to the functions of the Board and as are necessary for the conduct the examinations.

(6) It shall be the duty of the Board to furnish the select list to the Devaswom Board and advise to the candidate prepared in the manner as may be prescribed."

(emphasis supplied)

25. Section 18 of the Act deals with the power to frame Rules. Section 18(1) stipulates that the Government may, by way of notification in the Gazette, make Rules, either prospectively or retrospectively, for carrying out the purpose of the Act. Section 18(2) further provides that, in particular and without prejudice to the generality of the aforementioned powers, such Rules may provide for all or any of the matters mentioned thereunder and Clause (a) and Clause (c) of Section 18(2) deals with the procedure for the proper conduct of examination under Section 9(4), etc. Clause (f) of W.A Nos.1042& 1241 of 2021 ..26..

Section 18(2) empowers framing of Rules, regarding reservation to be followed at the time of preparation of select list to various posts in the Devaswom Board.

26. The Kerala Devaswom Recruitment Board Rules, 2015 has been framed by the State Government under Section 18 of the Kerala Devaswom Recruitment Board Act, 2015 and the said Rules 2015 has been notified, as per SRO No.352/2015, in Kerala Gazette Extraordinary No.1303 dated 30.05.2015. Rule 2(a) thereof defines "advice list" to mean candidates drawn from the select list and arranged on the basis of the rules of recruitment, relating to the post in respect of the vacancies reported from time to time. Rule 2(b) defines 'examinations' to mean written examination, practical examination, physical efficiency test, oral test (interview) and any other test or examination, which the Board may deem fit to hold. Rule 2(e) defines 'hereditary post' and reference thereto may not be necessary as we are not concerned with that aspect. Rule 2(h) defines "select list" to mean list of candidates arranged in the order of merit, either on the basis of examiniation, or interview or by both. Rule 3 deals with the appointment to various posts, except W.A Nos.1042& 1241 of 2021 ..27..

hereditary posts under various Devaswoms. Rule 3(2) deals with reservation and rotation for direct recruitments. The Rules have been amended subsequently as per SRO No.905/2019, published in Kerala Gazette dated 18.11.2019 for introducing provisions for community reservation under Rule 2. We are not concerned with those aspects and hence there is no necessity for us to extract Rule 3(2) and its proviso. The important provisions of Rule 3 which are relevant for the present circumstances are those contained in Sub- rules (1) & (3) thereof, which reads as follows:-

"3. Appointments to various posts except hereditary posts under various Devaswoms:-(1) The Board shall have the power to prepare select list for the appointment of candidates in various posts except hereditary posts coming under the various Devaswom Boards and managing Committees. (2) xxx xxx xxx xxx (3) The candidates for appointment to the selection categories and grades of the service shall be chosen by the [departmental promotion committee] constituted by the Board. The Departmental Promotion Committee shall consist of one member from the Board as Chairman, member of the Devaswom Board as member and Convener and a member nominated by the Government] (emphasis supplied)"

27. Chapter II of the Rules deals with conduct of examination. Rule 7 under Chapter II gives the various provisions contained for regulating procedure for conducting examination. Rule 7 reads as follows:-

W.A Nos.1042& 1241 of 2021 ..28..

"7. Procedure for conduct of examination.- (1) The Board may conduct all the following examinations to assess the merits of candidates considered for recruitment to a service or post:

(i) Written Examination (except for the posts of Driver and Part time Sweeper);

(ii) Practical Test;

(iii) Physical Efficiency Test;

(iv) Oral Test (interview) (marks shall be as fixed by the Board but shall not exceed 10 percentage of the total marks)

(v) Any other test or examination which the Board may deem fit to hold."

28. The legal position settled by leading case laws rendered by the Apex Court on selection posts, in promotion on the basis of merit and ability/merit cum suitability criteria:-

Now it may be pertinent to refer to some of the leading case laws rendered by the Apex Court, on the concept of selection process in promotion based on the criteria of merit and ability/merit cum suitability. It is also pertinent to refer to the concept of selection posts and non-selection posts in promotion of in-service candidate. In Sant Ram Sharma v. State of Rajastan & Ors. [AIR 1967 SC 1910], the Apex Court has pointed out that the principle of seniority ensures absolute objectivity by requiring all promotions to be made entirely on the ground of seniority and that if a post falls vacant, it is filled by the person who has served longest in the post immediately below. But that the W.A Nos.1042& 1241 of 2021 ..29..

seniority is so objective that it fails to take any account of personal merit and it is fair to every official, except the best ones; an official has nothing to win or lose, provided he does not actually become so inefficient that disciplinary action has to be taken against him. It was also held therein that, the criteria of merit, on the other hand, lays stress on meritorious performance, irrespective of seniority, and even a person, though junior, but much far meritorious than his seniors, is selected for promotion. The Court has expressed the view that, there should be a correct balance between seniority and merit in a proper promotion policy and that the criteria of seniority-cum-merit and merit-cum-seniority, which takes into account the seniority as well as merit, seeks to achieve such a balance, etc.

29. The Apex Court in the celebrated decision in Union of India v. Mohan Lal Capoor & Ors. [AIR 1974 SC 87 = (1973) 2 SCC 836], has observed in para No.17 thereof that, merit is certainly an elusive factor, capable of being judged very differently from different angles, or, by applications of varying tests of it by different persons, or, by the same persons, at different times. The W.A Nos.1042& 1241 of 2021 ..30..

Apex Court noted the contention that to make supposed merit the sole criteria for selection would be to leave the door wide open for nepotism to creep into selections for higher rungs of public service by promotion and that this would undermine the morale of members of the State services and weaken incentives for honest work and achievement of better standards of proficiency by them. However, in para.18 of the said decision, the Apex Court has relied on the observations from Leonard D.White's "Introduction to Public Administration" (4th edn. Pages 380, 383), cited with approval by the Apex Court in the earlier decision in Sant Ram Sharma's case supra [AIR 1967 SC 1910], wherein it was held as follows:-

"The principal object of a promotion system is to secure the best possible incumbents for the higher positions, while maintaining the morale of the whole organisation. The main interest to be served is the public interest, not the personal interest of members of the official group concerned. The public interest is best secured when reasonable opportunities for promotion exist for all qualified employees, when really superior civil servants are enabled to move as rapidly up the promotion ladder as their merits deserve and as vacancies occur, and when selection for promotion is made on the sole basis of merit. For the merit system ought to apply as specifically in making promotions as in original recruitment.

* * * * * Employees often prefer the rule of seniority, by which the eligible longest in service is automatically awarded the promotion. Within limits, seniority is entitled to consideration W.A Nos.1042& 1241 of 2021 ..31..

as one criterion of selection. It tends to eliminate favouritism or the suspicion thereof; and experience is certainly a factor in the making of a successful employee. Seniority is given most weight in promotions from the lowest to other subordinate positions. As employees move up the ladder of responsibility, it is entitled to less and less weight. When seniority is made the sole determining factor, at any level, it is a dangerous guide. It does not follow that the employee longest in service in a particular grade is best suited for promotion to a higher grade; the very opposite may be true."

30. Some of the leading case laws on the abovesaid issues would now be examined :-

(i) Union of India v. Mohan Lal Capoor & Ors.

[(1973) 2 SCC 836 = AIR 1974 SC 87] The scope and ambit of the provision contained in Regulation 5(2) of the Indian Police Service (Appointment by Promotion) Regulations, 1955 regarding the criteria of promotion on the basis of merit-cum-suitability has been considered in the said decision. Regulation 5(2) of the IPS (Appointment by Promotion) Regulations, 1955 mandates that the selection for inclusion in the select list shall be based on merit and suitability in all respects with due regard to seniority, etc. In para.37 of Mohan Lal Capoor's case supra [(1973) 2 SCC 836], it was further held that Regulation 5(2) says that the selection for inclusion in the list shall be based on merit and suitability in all respects with due regard to seniority W.A Nos.1042& 1241 of 2021 ..32..

and what it means is that, for inclusion in the select list, merit and suitability in all respects should be the governing consideration and that seniority should play only a secondary role and that it is only when merit and suitability are roughly equal that seniority will be a determining factor, or, if it is not fairly possible to make an assessment inter se of the merit and suitability of two eligible candidates and come to a firm conclusion, seniority would tilt the scale. The Apex Court held in para.22 thereof that the correct view, in conformity with the plain meanings of words used in the above Rules is that, the 'entrance' or 'inclusion' test, for a place on the select list, is competitive and comparative and applied to all eligible candidates and not minimal, like pass marks at an examination. That the Selection Committee has an unrestricted choice of the best available talent, from amongst eligible candidates, determined by reference to reasonable criteria applied in assessing the facts revealed by service records of all eligible officers so that merit and not merely seniority is the governing factor. That a simple reading of Regulation 5(2) clearly indicates this to be the correct view and that the required number has thus to be selected by a comparison W.A Nos.1042& 1241 of 2021 ..33..

of merits of all the eligible candidates of each year and in making this selection, seniority must play its due role. Seniority would, however, only be one of the several factors affecting assessment of merit as comparative experience in service should be. It may be pertinent to refer to the contents of paras 37 & 22 of the decision of the Apex Court in Mohan Lal Capoor's case supra [(1973) 2 SCC 836], which read as follows: -

" 37. And, when Regulation 5(2) says that the selection for inclusion in the list shall be based on merit and suitability in all respects with due regard to seniority, what it means is that for inclusion in the list, merit and suitability in all respects should be the governing consideration and that seniority should play only a secondary role. It is only when merit and suitability are roughly equal that seniority will be a determining factor, or, if it is not fairly possible to make an assessment inter se of the merit and suitability of two eligible candidates and come to a firm conclusion, seniority would tilt the scale. But, to say, as the High Court has done, that seniority is the determining factor and that it is only if the senior is found unfit that the junior can be, thought of for inclusion in the list is, with respect, not a correct reading of Regulation 5(2). I do not know what the High Court would have said had Regulation 5(2) said:

"Selection for inclusion in the select list shall be based on seniority with due regard to merit and suitability". Would it have said that the interpretation to be put upon the hypothetical sub- regulation (2) is the same as it put upon the actual sub- regulation?"

" 22. Thus, we think that the correct view, in conformity with the plain meanings of words used in the relevant Rules, is that the "entrance" or "inclusion" test for a place on the select list, is competitive and comparative applied to all eligible candidates and not minimal like pass marks at an examination. The Selection Committee has an unrestricted choice of the best available talent, from W.A Nos.1042& 1241 of 2021 ..34..

amongst eligible candidates, determined by reference to reasonable criteria applied in assessing the facts revealed by service records of all eligible candidates so that merit and not mere seniority is the governing factor. A simple reading of the Regulation 5(2) clearly indicates this to be the correct view. The required number has thus to be selected by a comparison of merits, of all the eligible candidates of each year. But, in making this selection, seniority must play its due role. Seniority would, however, only be one of the several factors affecting assessment of merit as comparative experience in service should be. There could be a certain number of marks allotted, for purposes of facilitating evaluation, to each year of experience gained in the service. When the required number for the list is thus chosen, the respective roles of seniority and exceptional merit would be governed by Regulation 5(3). This seems to be the correct interpretation of rules as they stand."

(ii) Union of India & Ors. v. Lt.Gen.Rajendra Singh Kadyan & anr.

[(2000) 6 SCC 698] In the above decision, the Apex Court has dealt with various aspects relating to the different criteria for promotion depending upon the nature of the post and requirements of the service and that such criteria would broadly fall into three categories, namely,

1. seniority-cum-fitness,

2. seniority-cum-merit,

3. merit-cum-suitability with due regard to seniority. It has also been held therein that in deciding whether a post is a selection post or not, one of the criteria to be considered is that if it involves a comparative assessment of officers, then necessarily W.A Nos.1042& 1241 of 2021 ..35..

the element of selection is involved. It was held therein that there is no requirement of assessment of comparative merit, both in the case of seniority-cum-fitness and seniority-cum-merit. Whereas, the criteria based on merit-cum-suitability, with due regard to seniority, as prescribed in the case of promotion to higher posts, etc., necessarily involves assessment of comparative merit of all eligible candidates and selecting the best out of them. In para.11 of the said decision, the Apex Court has held that broadly, the criteria for promotion may fall into three categories, namely,

1. seniority-cum-fitness,

2. seniority-cum-merit,

3. merit-cum-suitability with due regard to seniority. In para.12 thereof, it has been held by the Apex Court that, wherever fitness is stipulated as the basis of selection, it is regarded as a non-selection post, to be filled on the basis of seniority, subject to rejection of the unfit and that fitness means fitness in all respects. Further that, seniority-cum-merit postulates the requirement of certain minimum merit or satisfying a benchmark previously fixed and subject to fulfilling this W.A Nos.1042& 1241 of 2021 ..36..

requirement of minimum merit, the promotion is based on seniority. That there is no requirement of assessment of comparative merit both in the case of seniority-cum-fitness and seniority-cum-merit, as even for the latter, what is involved is only assessment of minimum merit and promotion based on seniority from amongst those incumbents, who have the minimum merit. It will be pertinent to refer to para.12 of Lt.Gen.Rajendra Singh Kadyan's case supra [(2000) 6 SCC 698], which reads as follows:-

"12. Wherever fitness is stipulated as the basis of selection, it is regarded as a non-selection post to be filled on the basis of seniority subject to rejection of the unfit. Fitness means fitness in all respects. "Seniority-cum-merit" postulates the requirement of certain minimum merit or satisfying a benchmark previously fixed. Subject to fulfilling this requirement the promotion is based on seniority. There is no requirement of assessment of comparative merit both in the case of seniority-cum-fitness and seniority-cum-merit. Merit- cum-suitability with due regard to seniority as prescribed in the case of promotion to All-India Services necessarily involves assessment of comparative merit of all eligible candidates, and selecting the best out of them."

The Apex Court in para.20 of the said decision considered the said argument that the appointment to the post of Army Commander is of selection and not a mere promotion on the basis of seniority. Whereas, the Union of India argued that appointment W.A Nos.1042& 1241 of 2021 ..37..

to the post of Army Commander is a selection post and not a post to be filled up by promotion merely on the basis of seniority. The Apex Court, after consideration of the norms, held that the clear indication is that it is a selection post and not a mere promotion on the basis of seniority, etc. Further, it has been specifically held by the Apex Court, in para.26 of the above decision, that in deciding whether a post is a selection post or not, one of the criteria to be considered is if it involves a comparative assessment of officers, then necessarily an element of selection is involved and, therefore, the post is a selection post, etc. In the said case, the contention was raised before the Apex Court that the hierarchy in the Army and the method of selection and promotion to various posts, starting from the post of Lieutenant and going up to the post of the Chief of the Army Staff, will clearly indicate that the posts of Lieutenant, Captain and Major are automatic promotion posts, on passing the promotion examination, irrespective of inter se merit, whereas the posts from Major to Lt.Colonel to Colonel, Colonel to Brigadier, Brigadier to Major General and Major General to Lt.General are all selection posts filled up by promotion on the W.A Nos.1042& 1241 of 2021 ..38..

basis of relative merit assessed by the designated Selection Boards. But it was contended that the post of Lt. General (Corps Commander) to Army Commander, is a non-selection post to which promotion is made, subject to fitness and that it is only a promotion, subject to fitness in all respects, although the rank remains the same, etc.

(iii) B.V.Sivaiah & Ors. v. K.Addanki Babu & Ors.

[(1998) 6 SCC 720] In the abovesaid decision, the Apex Court has considered the case of promotions, where the criteria is based on seniority-cum- merit and merit-cum-seniority. It has been held in paras.9 & 10 thereof, that the principle of "merit-cum-seniority" lays greater emphasis on merit and ability and seniority plays a less significant role and seniority is to be given weight only when merit and ability are approximately equal. On the other hand, as between the two principles of seniority and merit, the criteria of seniority-cum- merit lays greater emphasis on seniority, but an officer cannot claim promotion, as a matter of right, by virtue of his seniority alone and if he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be W.A Nos.1042& 1241 of 2021 ..39..

promoted. It may be pertinent to refer to the contents of paras.9, 10 & 11 of the decision of the Apex Court in B.V.Sivaiah's case supra [(1998) 6 SCC 720], which read as follows:-

"9. The principle of "merit-cum-seniority" lays greater emphasis on merit and ability and seniority plays a less significant role. Seniority is to be given weight only when merit and ability are approximately equal. In the context of Rule 5(2) of the Indian Administrative Service/Indian Police Service (Appointment by Promotion) Regulations, 1955 which prescribed that "selection for inclusion in such list shall be based on merit and suitability in all respects with due regard to seniority" Mathew, J. in Union of India v. Mohan Lal Capoor [(1973) 2 SCC 836 : 1974 SCC (L&S) 5] has said: (SCC p. 856, para 37) "[F]or inclusion in the list, merit and suitability in all respects should be the governing consideration and that seniority should play only a secondary role. It is only when merit and suitability are roughly equal that seniority will be a determining factor, or if it is not fairly possible to make an assessment inter se of the merit and suitability of two eligible candidates and come to a firm conclusion, seniority would tilt the scale."

Similarly, Beg, J. (as the learned Chief Justice then was) has said:

(SCC p. 851, para 22) "22. Thus, we think that the correct view, in conformity with the plain meaning of words used in the relevant Rules, is that the 'entrance' or 'inclusion' test for a place on the select list, is competitive and comparative applied to all eligible candidates and not minimal like pass marks at an examination. The Selection Committee has an unrestricted choice of the best available talent, from amongst eligible candidates, determined by reference to reasonable criteria applied in assessing the facts revealed by service records of all eligible candidates so that merit and not mere seniority is the governing factor."

10. On the other hand, as between the two principles of seniority and merit, the criterion of "seniority-cum-merit" lays greater emphasis on seniority. In State of Mysore v. Syed Mahmood [AIR 1968 SC 1113 : (1968) 3 SCR 363 : (1970) 1 LLJ W.A Nos.1042& 1241 of 2021 ..40..

370] while considering Rule 4(3)(b) of the Mysore State Civil Services General Recruitment Rules, 1957 which required promotion to be made by selection on the basis of seniority- cum-merit, this Court has observed that the Rule required promotion to be made by selection on the basis of "seniority subject to the fitness of the candidate to discharge the duties of the post from among persons eligible for promotion". It was pointed out that where the promotion is based on seniority-cum-merit, the officer cannot claim promotion as a matter of right by virtue of his seniority alone and if he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted.

11. In State of Kerala v. N.M. Thomas [(1976) 2 SCC 310 :

1976 SCC (L&S) 227] A.N. Ray, C.J. has thus explained the criterion of "seniority-cum-merit": (SCC p. 335, para 38) "With regard to promotion the normal principles are either merit-cum-seniority or seniority-cum-merit. Seniority-cum-merit means that given the minimum necessary merit requisite for efficiency of administration, the senior though the less meritorious shall have priority."

The said decision dealt with the norms for promotion to post covered by the Regional Rural Banks (Appointment & Promotions of Officers and Other Employees) Rules, 1988. Rule 7 thereof dealt with promotions to the post of Area Managers and Senior Managers and it was stipulated therein that the source of recruitment would be 100% by promotion from amongst confirmed officers working in the bank and promotions will be on the basis of 'seniority-cum-merit'. Rule 7(c) dealt with mode of selection and it has been mentioned therein that the mode will be W.A Nos.1042& 1241 of 2021 ..41..

interview and assessment of performance reports for the preceding three years' period as officer for promotion. The Apex Court has categorically held in para.18 of the said decision that the criterion of "seniority-cum-merit" in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made. That for assessing the minimum necessary merit, the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion and such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit. It was held therein that once the incumbents possess the requisite minimum merit so assessed, then seniors will have to be promoted for promotion, where the criteria is 'seniority-cum-merit'. On facts, the Apex Court held in many of the decisions dealt with W.A Nos.1042& 1241 of 2021 ..42..

therein that the methodology adopted by the promotion authority, to rate the officers on the basis of their performance in the merit assessment, would be completely contrary to the principle of "seniority-cum-merit" and it virtually amounts to application of the principle of "merit-cum-seniority", etc.

(iv) Harigovind Yadav v. Rewa Sidhi Gramin Bank & Ors.

[(2006) 6 SCC 145] This case also dealt with promotion for employees of the 1st respondent-Bank therein, which was governed by the Regional Rural Banks (Appointment & Promotions of Officers and Other Employees) Rules, 1988. Para.3 of the said decision would indicate that promotion quota is 50% and promotion shall be on the basis of seniority-cum-merit from amongst the eligible and the feeder category and 50% is for direct recruitment, for which the mode of selection is written test and interview. In this case, the Apex Court has relied on the earlier decision rendered in B.V.Sivaiah's case supra [(1998) 6 SCC 720]. The Apex Court in Harigovind Yadav's case supra noted in para.21 thereof that this Court in the earlier decision in B.V.Sivaiah's case supra did not accept the W.A Nos.1042& 1241 of 2021 ..43..

promotion policy contained in the impugned circular therein as being in consonance with the principle of merit-cum-seniority mandated in the Rules. The Apex Court held that the policy which did not prescribe a minimum standard for assessing merit and which promoted candidates on the basis of comparative merit, with reference to total marks obtained by the eligible candidates, followed the merit-cum-seniority principle and not the prescribed seniority-cum-merit norms. In para.22 of Harigovind Yadav's case supra, it was held by the Apex Court that the interviews can be held and assessment of performance can be made by the employer in connection with promotions. But that can be only to assess the minimum necessary merit, where the criterion for promotion is seniority-cum-merit. But where the procedure does not provide the minimum standard for promotion, but only the minimum standard for interview and effects the selection with reference to comparative marks, it was held to be contrary to the rule of "seniority-cum merit". It was also held therein that the law laid down earlier by the Apex Court in B.V.Sivaiah's case supra [(1998) 6 SCC 720] has been subsequently followed and reiterated W.A Nos.1042& 1241 of 2021 ..44..

in the case in Sher Singh v. Surinder Kumar [(1998) 9 SCC 652], wherein the Apex Court had occasion to consider a similar question relating to the promotion for the post of Clerk to Field Supervisor in the case of another Gramin Bank. In Sher Singh's case supra, the Apex Court held that the criterion for making promotion from the post of Clerk to that of Field Supervisor was seniority-cum-merit, but the Bank had not followed the criterion of seniority-cum-merit, but made promotions on the basis of merit- cum-seniority and that the promotion was vitiated and was therefore invalid. The Apex Court again reiterated in para.23 of Harigovind Yadav's case supra that in that case where the Rule mandated promotion on the basis of seniority-cum-merit, the procedure followed therein, of making promotion on the basis of gradation in the marks secured in the interview was held to be contrary to the prescribed criteria of seniority-cum-merit, etc.

(v) Sarat Kumar Dash & Ors. v. Biswajit Patnaik & Ors.

[1995 Supp (1) SCC 434] In this case, the Apex Court dealt with the criteria of promotion on the basis of merit-cum-suitability and the role of seniority was also considered and it was held that where after W.A Nos.1042& 1241 of 2021 ..45..

consideration and evaluation, merit and suitability were found to be superior, then seniority was held to have no role to play in the selection. In para.8 of Sarat Kumar Dash's case supra, the Apex Court held that, in the case of merit-cum-suitability, seniority should have no role to play, when the candidates were found to be meritorious and suitable for higher posts and in such a case, even a juniormost personnel may steal a march over his seniors and jump the queue for accelerated promotions. That this principle of merit-cum-suitability inculcates dedicated service and accelerates ability and encourages merit to improve excellence. That, seniority would have its due place only where merit and ability are approximately equal or where it is not possible to assess the inter se merit and suitability of two equally eligible competing candidates, who come very close in the order of merit and suitability. Under those circumstances, seniority will have its due role and it will be called in aid for consideration. But in case where the relative merit and suitability or ability have been considered and evaluated and found to be superior, then seniority has no role. In that case, the Apex Court held that there the promotion W.A Nos.1042& 1241 of 2021 ..46..

was to be made under the principle of merit-cum-suitability with due regard to seniority and there are no statutory rules. Then, awarding of the marks by the PSC on the basis of grading of confidential records for a certain number of years, six years in that case, preceding the time of selection, was held to be valid and that in such grading it was not incumbent on the PSC to state reasons for the recommendations it made or on the Government for accepting those recommendations. In para.7 of Sarat Kumar Dash's case supra, the Apex Court has relied on the dictum laid down earlier by the Apex Court in the celebrated Mohan Lal Capoor's case supra [(1973) 2 SCC 836 para.37]. It will be pertinent to refer to the contents of paras.8, 9 & 11 of the decision of the Apex Court in Sarat Kumar Dash's case supra, which read as follows:-

"8. In case of merit-cum-suitability, the seniority should have no role to play when the candidates were found to be meritorious and suitable for higher posts. Even a juniormost man may steal a march over his seniors and jump the queue for accelerated promotion. This principle inculcates dedicated service, and accelerates ability and encourages merit to improve excellence. The seniority would have its due place only where the merit and ability are approximately equal or where it is not possible to assess inter se merit and the suitability of two equally eligible competing candidates who come very close in the order of merit and ability. Under those circumstances, the seniority will play its due role and calls it in aid for consideration. But in case where the relative merit and suitability or ability have been considered and evaluated, and found to be superior, then the seniority has no role to play. In W.A Nos.1042& 1241 of 2021 ..47..

our view the PSC has evolved correct procedure in grading the officers and the marks have been awarded according to the grading. It is seen that the four officers have come in the grading of 'B'. In consequence, the PSC had adopted the seniority of the appellants and Panda in the lower cadre in recommending their cases for appointment in the order of merit.

9. Mr Mehta, the learned counsel for the respondent- J.P.Mishra contended that the PSC itself has evolved grading of outstanding, very good, good, satisfactory, average etc. from C Rs which is not open to the PSC to evolve grading. We cannot accept that contention to be correct. Firstly, this contention was not raised in the Tribunal and secondly, from the file produced before us by the PSC, it is clear that they have seen the grading was given by the Government and they evolved the criteria of giving marks on the basis of the grading given by the Government. With regard to the merit and ability this Court has consistently been following the view as extracted herein from Capoor case [(1973) 2 SCC 836 : 1974 SCC (L&S) 5 : (1974) 1 SCR 797] in other decisions vide R.S. Dass v. Union of India [1986 Supp SCC 617 : (1987) 2 ATC 628], National Institute of Mental Health & Neuro Sciences v. Dr K. Kalyana Raman [1992 Supp (2) SCC 481, para 7 : 1992 SCC (L&S) 959 :

(1992) 21 ATC 680 : AIR 1992 SC 1806] and Syed Khalid Rizvi v. Union of India [1993 Supp (3) SCC 575, 584-86 (paras 8 and

9) : 1994 SCC (L&S) 84 : (1994) 26 ATC 192] .

10. ......................


                                       XXX XXX XXX

                                       XXX       XXX XXX

11. The next question is whether omission to record reasons amounts to violation of the principles of natural justice. The principle of audi alteram partem is a basic concept of the principle of natural justice. The omnipotency inherent in the doctrine is that no one should be condemned without being heard or given an opportunity to the person affected to present his case before taking the decision or action. In the field of administrative action, this principle has been applied to ensure fair play and justice to the affected person. However, the doctrine is not a cure to all the ills in the process. Its application depends upon the factual matrix to improve administrative efficiency and expediency and to meet out W.A Nos.1042& 1241 of 2021 ..48..

justice. The procedure adopted would be just and fair. The reasons are links between maker of the order or the author of the decision and the order itself. The record is called to consider whether he has given due consideration to the facts placed before him before he arrives at the decision. Therefore, the reasons in the order or found from the record bridges the link between the maker of the order and the order itself or decision. Therefore the natural justice is not a rigid nor an inflexible rule. It should be applied to a given fact situation, depending upon the background of the statutory provisions, nature of the right which may be affected and the consequences that may entail. It is already seen that the Commission evolved the objective criteria in awarding marks to the given grading of the candidates and on its basis recommended their cases for promotion. In R.S. Dass case [1986 Supp SCC 617 : (1987) 2 ATC 628] this Court held that the grading itself is a reason and no separate reasons in that behalf in arranging the order of merit need be given. The grading is to obviate the need to record reasons. The finding of the Tribunal that the selection by PSC without recording reasons or need to record separately the reasons for evolving the criteria for selection is also clearly illegal."

(vi) Union of India & Ors. v. Chetan S.Naik [(1999) 6 SCC 457] In this case, the Three Judge Bench of the Apex Court considered the issue as to how inference can be made when the relevant rule mentions "promotion" as the criterion. The Recruitment Rules in that case had used three different expressions, viz. "selection", "promotion-cum-fitness"and "promotion". It was held therein that "promotion" criterion could not be given the same meaning as "selection" criterion. That comparative assessment of merit, which is applied in the case of W.A Nos.1042& 1241 of 2021 ..49..

"selection" criterion was inapplicable in the case of "promotion"

criterion. In "promotion" criterion, promotion was to be given on the basis of seniority, subject to the candidate's fitness. It will be pertinent to refer to the contents of paras.3 to 5 of the said decision of the Apex Court in Chetan S.Naik's case supra [(1999) 6 SCC 457], which reads as follows:-

" 3. On a plain interpretation of the word "promotion"

occurring in Rule 7(2) in regard to 50% and the words "promotion" at Serial Nos. 3, 4 and 5 of Schedule IV and Schedule V, it is clear that for the 50% JTS posts at Serial No. 5, the appointment is by "promotion" while for appointment to the post at Serial No. 3, it is by "selection" and for appointment to posts at Serial No. 4 it is by "promotion-cum- fitness". Thus for the appointment at these three levels, the rule-making authority has used different and distinct words,

-- "selection", "promotion-cum-fitness" and "promotion" and that indicates that the word "promotion" at Serial No. 5 for JTS posts is not to be given the same meaning as "selection" at Serial No. 3. In other words, for appointment to posts in JTS at Serial No. 5, no selection by assessment of comparative merit is contemplated either in the rules or in Schedule IV and Schedule V.

4. The Full Bench at Madras and the Jaipur Bench have relied upon Note 2 below Schedule IV and Schedule V to hold that even for JTS posts at Serial No. 5, appointment is by "selection". It is no doubt true that Note 2 uses the words "field of selection" but that, in our opinion, is meant for the purpose of considering the "options" to be exercised by those in the feeder category -- choice is to "opt" for being allocated to the Management or the Programme wings of JTS posts -- but the "selection" process under Note 2 is limited to considering the suitability of those in the feeder category to be allocated either to the "Programme Wing" or to the "Production Wing", as the case may be, among the JTS posts. The DPC's role is, thus, limited to the selection of the promotees for either of these two wings. That note, in our view, has no bearing on the meaning of the word "promotion" W.A Nos.1042& 1241 of 2021 ..50..

in Rule 7(2) or on the word "promotion" at Serial No. 5 in Schedules IV and V.

5. Keeping in view the relevant rules, we, thus, find that the view taken by the Ernakulam Bench is the correct view in the sense that the method of promotion to JTS posts is on the basis of promotion by seniority, subject to finding out the fitness of the candidate for the Programme Wing or the Production Wing, through the DPC. The Karnataka Bench, therefore, rightly followed the Ernakulam Bench decision. We, therefore, do not see any reason to interfere in the two special leave petitions. As a consequence, the Full Bench view of the Madras Tribunal in OA No. 1221 of 1994 cannot be said to be laying down the correct law."

31. Resolution of the main issues in this case:

As indicated hereinabove, the main issue to be decided in this case is as to whether appointments to all posts in the Devaswom Board (other than the hereditary post and posts in the aided educational institutions in the Devaswom Boards), can be filled up only on the basis of the junction and involvement of the Kerala Devaswom Recruitment Board, irrespective as to whether the method of appointment is direct recruitment, promotion or by- transfer, etc., in view of the non-obstante clause contained in Sec.9(1)(i) of the Kerala Devaswom Recruitment Act, 2015 or whether the said role and function of the Devaswom Recruitment Board is confined only to selection for appointment to posts to be filled up by the method of appointment through 'direct W.A Nos.1042& 1241 of 2021 ..51..

recruitment'. We would answer these crucial issues in the light of the discussion made hereinabove about the provisions contained in the Guruvayoor Devaswom Act, 1978, the Guruvayoor Devaswom Employees Regulations, 1983, the Kerala Devaswom Recruitment Board Act, 2015, the Kerala Devaswom Recruitment Board Rules, 2015 and also with reference to the case laws discussed hereinabove. One of the main contentions raised by the appellants is that the Division Bench of this Court, as per para.60 of the judgment dated 31.08.2017 in W.A No.481/2016 & connected appeals (K.Ajitha's case supra), has already held that, in view of the abovesaid non-obstante provision contained in Sec.9(1)(i) of the Kerala Devaswom Recruitment Board Act, 2015, irrespective as to the provisions contained in the Guruvayoor Devaswom Act or the Guruvayoor Devaswom Employees Regulations, after commencement of the Kerala Devaswom Board Act, 2015, recruitment to various devaswoms in Kerala can be effected only through the machinery under the Kerala Devaswom Recruitment Act, 2015. Hence, it is contended by the appellants that all appointments, irrespective as to whether the method of W.A Nos.1042& 1241 of 2021 ..52..

appointment is direct recruitment, promotion or by-transfer, to various posts in the Devaswoms can be effected only through the involvement and junction of the Kerala Devaswom Recruitment Board as to the provisions of the said Recruitment Board Act, 2015 and the Rules framed thereunder, etc.

32. At the outset, we note that the main factual issue, raised in the said cases considered in K.Ajitha's case supra, was regarding temporary appointments made by the Guruvayoor Devaswom, instead of the regular method of direct recruitment, in lieu of the regular selection by direct recruitment and the subsequent claim made by such temporary employees for regularization in the service. So, essentially the method of appointment involved in those cases was direct recruitment. No dispute whatsoever has been raised in the present cases that the method of appointment, to fill up the post is by methods other than direct recruitment.

33. After hearing both sides and after going through the said judgment of the Division Bench of this Court in W.A Nos.1042& 1241 of 2021 ..53..

K.Ajitha's case supra, we are of the view that the abovesaid aspect regarding selection by direct recruitment alone has been considered in the said judgment and the present issue as to whether other methods of appointment like promotion, by-transfer, etc., should also involve the Devaswom Recruitment Board, has not been directly raised and decided in K.Ajitha's case supra.

34. A subsequent judgment rendered by a Division Bench of this Court on 10.11.2020 in W.P.(C) No.16530/2020 & W.P.(C) No.12652/2020 has been produced as Ext.P-5 in the instant W.P.(C). A reading of para.3 of Ext.P-5 judgment would indicate that the Division Bench has observed therein that the Kerala Devaswom Recruitment Board (3rd respondent therein) was established in the year 2015 and promotion to the posts above Assistant Manager are presently entrusted with them (i.e. with the said Recruitment Board). That is only an incidental observation made by the Division Bench and the issue as to whether all W.A Nos.1042& 1241 of 2021 ..54..

promotions and by-transfers, including to selection posts and non- selection posts, can also be effected only through the involvement of the Devaswom Recruitment Board, has not been directly raised and decided in Ext.P-5 judgment. The issue that was directly and substantially raised and decided in Ext.P-5 writ proceedings, was as to the manner and methodology of framing regulations under Sec.39 of the Guruvayoor Devaswom Act, 1978 and as to the scope and ambit of the process of securing approval of the State Government to the regulations that are to be framed by the Managing Committee of the Guruvayoor Devaswom under Sec.39 thereof. However, certainly we have to take note that the Division Bench has already observed, in para.3 of Ext.P-5 judgment in W.P(C) Nos.16530/2020 & 12652/2020, that after the establishment of the Guruvayoor Devaswom Board, promotions to the post of above Assistant Managers, have been presently entrusted with them, etc. This Court will have to certainly give due weightage to the said observations made by the Division Bench in para.3 of Ext.P-5 judgment., even though that by itself may not conclude the issue inasmuch as the issue involved in this case, as W.A Nos.1042& 1241 of 2021 ..55..

mentioned hereinabove, has not been directly and substantially raised and decided in Ext.P-5.

35. After examining the relevant provisions contained in the Guruvayoor Devaswom Act, 1978 and the Guruvayoor Devaswom Employees Regulations, 1983 framed under the said Act, the following aspects will have to be borne in mind :

36. Sec.19(1) of the Guruvayoor Devaswom Act, 1978 mandates that the appointment of all officers and other employees of the Devaswom shall be made by the Committee mentioned therein, which is the Guruvayoor Devaswom Managing Committee, constituted in terms of Sec.3 of the said Act. True that, sub-section 3 of Sec.19 also stipulates that selection of officers and other employees of the Devaswom may be made by such sub-committee constituted by the Guruvayoor Devaswom Managing Committee from among its members. The proviso thereto is not relevant for the present purpose. Sec.19(4) further mandates that, subject to the provisions contained in sub-sections (1), (2) & (3) of the said section, the procedure for the selection and appointment of officers and other employees of the Devaswom W.A Nos.1042& 1241 of 2021 ..56..

shall be such as may be determined by the Managing Committee by regulations made in that behalf. Sec.39 (1) of the Guruvayoor Devaswom Act, 1978 specifically mandates that the Managing Committee may, subject to the approval of the Government, make regulations not inconsistent with the provisions of this Act and the rules made thereunder, to provide for the manner in which the duties imposed on it, under the said Act and its functions thereunder, shall be discharged. Clause (a) of sub-section (2) of Sec.39 further provides that, in particular, and without prejudice to the generality of the fore-going power, such regulations may provide for-

"(a) the conditions of service of the Administrator and the other officers and employees of the Devaswom;"

37. In the light of the provisions contained in Sec.19 (4) & Sec.39(2)(a), the Guruvayoor Devaswom Employees Regulations, 1983 has been framed with the prior approval of the State Government. The relevant portion of the said service regulations is provided at Ext.P-1 in the W.P(C). In this case, we are mainly concerned with promotion to the post of Manager from the feeder category of Assistant Manager. We have already W.A Nos.1042& 1241 of 2021 ..57..

mentioned about the details of Regulation 5 & Regulation 16 in the earlier portions of this judgment. The combined and cumulative effect of Regulation 16, read with Regulation 5, more particularly the proviso thereto, is that, generally, all promotions or appointments by transfer shall, subject to the provisions of the above regulations, be made by the Administrator after obtaining the approval of the Managing Committee, in accordance with seniority, subject to the persons being considered suitable for the post. However, an exception has been carved out by the engraftment of the proviso to Regulation 5, which mandates that the posts mentioned therein, including the post of Manager, shall be treated as selection categories and appointments to the selection category shall be made by the Managing Committee from amongst members eligible for appointment to such category on the basis of merit and ability and seniority being considered only where merit and suitability are approximately equal. So, at the outset, it has to be held that promotion from the feeder category of Assistant Manager to the higher category of Manager is the promotion to a selection post and not to a non-selection post and W.A Nos.1042& 1241 of 2021 ..58..

the criterion for such promotion shall be merit and ability and seniority can be considered only where merit and ability are approximately equal for the incumbents under consideration.

38. We may also have to refer to some of the provisions contained in the The Kerala Public Service Commission (Additional Functions as Respects the Administrative Services under Devaswom Boards) Act, 2008 (State Act 19 of 2008), which was later repealed as per Sec.16 of State Act 1 of 2014 made effective from 03.02.2014. At the outset, it has been mentioned that only two Devaswom Boards, Travancore Devaswom Board & Cochin Devaswom Board alone were brought within the selection purview of the KPSC, as per State Act 19 of 2008. However, a reference to those provisions would be relevant and germane, inasmuch as the present Kerala Devaswom Recruitment Board Act, 2015 would bring within its fold not only the abovesaid two Devaswom Boards, viz., Travancore Devaswom Board and Cochin Devaswom Board, but certain other Devaswom Boards also, including the Guruvayoor Devaswom Board. As already discussed hereinabove, the said State Act 19 of 2008, had brought within its W.A Nos.1042& 1241 of 2021 ..59..

selection purview only selection by way of direct recruitment of all officers and employees of the administrative services of the said Devaswom Boards concerned. In other words, only selection by way of direct recruitment of the officers and employees in the administrative services in the Devaswom Boards concerned alone were brought in the purview of the said State Act 19 of 2008 and the other methods of appointments like promotion and by-transfer, irrespective as to whether it is selection post or non- selection post, were not brought within the purview of the PSC as per the said State Act 19 of 2008. We are referring to the said provisions contained in the said State Act 19 of 2008, which was subsequently repealed in 2014, only to compare the corresponding provisions made in the Kerala Devaswom Recruitment Board Act, 2015.

39. The Kerala Devaswom Recruitment Board Ordinance, 2015 (State Ordinance No.5/2015) earlier promulgated, was later repealed and replaced by the Kerala Devaswom Recruitment Board Act, 2015 (State Act 16 of 2015). Sec.1(2) of the said Act stipulates that the said Act shall be deemed to have come into force on 1.3.2014. It is clearly mentioned in the beginning portion of said W.A Nos.1042& 1241 of 2021 ..60..

Act, that the said Act is to provide for constitution of an autonomous Devaswom Recruitment Board for preparing select list of candidates for appointment in various posts other than hereditary posts and posts in aided educational institutions in Devaswom Boards of the State of Kerala and for matters conducted therewith or incidental thereto.(Emphasis applied) Further, the Preamble to said Act also categorically declares that, it is expedient to provide for the constitution of an autonomous Devaswom Recruitment Board for preparing select list of candidates. The term 'select list' appearing in the Objective and Preamble of the Act has not been specifically defined in the said Act. However, Sec.9(4) of the Act inter alia provides that matters of preparation of select list(Emphasis applied) to various posts in the Devaswom Board, shall be such as may be prescribed.(Emphasis applied) Sec.2(g) of the Act defines the word 'prescribed' to mean prescribed by rules or regulations made under this Act. Sec.18(2)(c) explicitly confers power to the State Government to frame rules regarding the procedure contemplated under Sec.9(4) of the Act. Rule 2(h) of the Kerala Devaswom W.A Nos.1042& 1241 of 2021 ..61..

Recruitment Board Rules, 2015, framed by the State Government, in exercise of the powers under Sec.18 of the abovesaid Act, defines 'select list' to mean list of candidates arranged in the order of merit, either on the basis of interview or examination or by both. So, in the absence of an explicit definition for the term 'select list' appearing in the Objective and Preamble of the Act as well as in other provisions as in Secs.9(1)(i), 9(4), etc has to be understood in a more broader sense and perspective than the narrow definition contained in Rule 2(h) of the Rules, and we would be giving reasons hereinafter for arriving at the said conclusion. For the reasons to be stated by us hereinafter, it appears that the definition of the term 'select list' appearing in Rule 2(h) is within a very narrow compass, and therefore it has been contended by the writ petitioners that the term 'select list' will have to be understood only with reference to the selection process in direct recruitment, and not in the case of promotions or by-transfer appointments, etc. Sec.9(1)(i) provides that the functions conferred on the Recruitment Board as per the said Act shall be notwithstanding anything contained in any other Act/ W.A Nos.1042& 1241 of 2021 ..62..

Rules/Regulations/Orders/Judgments/Decree, in respect of the appointment of candidates to the posts in the Devaswom Board, for which the Recruitment Board shall prepare select list for appointment of candidates to various posts, other than hereditary posts and posts in aided educational institutions in the Devaswom Boards, as per the provisions of the said Act, Rules and Regulations framed thereunder.

40. We have already extracted the full contents of Sec.9. The provisions contained in Sub Sections 2 & 3 of Sec.9 may broadly indicate that those provisions are mainly dealing with 'examination', that may have to be conducted by the Recruitment Board, in the context of selection to direct recruitment to various posts. The term 'examination', appearing in Sub Sections 1 to 4 of Sec.9, also has not been explicitly defined in the Act. Rule 2(b) defines 'examination' to include written examination, practical examination, physical efficiency test, oral test (interview) and any other test or examination, which the Board may deem fit to hold. Therefore, the said definition for 'examination', contained in Rule 2(b) of the Rules, will also reinforce the view that the term W.A Nos.1042& 1241 of 2021 ..63..

'examination', referred to in Clauses (ii), (iii) & (iv) of Sec.9(1) as well as Sub Sections 2, 3 & 4 of Sec.9, may be broadly used in the context of examination to the categories envisaged in Rule 2(b), for the purpose of conducting selection for direct recruitment to various categories.

41. In that context, it is also relevant to bear in mind that Regulation 16 of the Guruvayur Devaswom Employees Regulations, 1983, framed under Sec.39 of the Guruvayoor Devaswom Act, 1978, specifically stipulates, as per Clause (a) thereof, that probationers working in any post shall be eligible for promotion to higher post, as per the provisions applicable to the employees of the State Government. It has been contended by the writ petitioners that Ext.P-7 is an Administrative Circular No.1/2016 dated 05..5.2016, issued by the Kerala Devaswom Recruitment Board, purportedly under the provisions contained in Sec.9(5) of the Kerala Devaswom Recruitment Board Act, 2015, and that Clause 5 of Part I of Ext.P-7, states that the criteria for selection by the Departmental Promotion Committee shall be merit and ability, by taking into consideration the 3 items mentioned W.A Nos.1042& 1241 of 2021 ..64..

thereunder. It may be pertinent to refer to the contents of Clauses 2 to 5 of Part I of Ext.P-7 Administrative Circular, which read as follows:-

"2. Promotion and appointment by transfer according to merit and ability.- Selection of candidates for appointment to selection categories or grades included in category (a) above shall be made by Departmental Promotion Committee which shall be constituted for each Devaswom Board.

3. As provided in Rule 3(3) of the Kerala Devasworn Recruitment Rules, 2015, the Departmental Promotion Committee shall consist of a Member, Kerala Devaswom Recruitment Board as Chairman, a Member of the Devaswom Board who is the appointing authority for the post concerned and a Member nominated by Government. The Member of the Devaswom Board shall also be the Convener of the Committee.

4. The Departmental Promotion Committee shall meet periodically to prepare select lists, in the order of merit, of the officers selected for promotion. Whenever necessity arises, the Committee may also hold ad hoc meetings for the purpose of making selection to particular posts.

5. The criterion for selection shall be merit and ability of the Officers and their suitability shall be assessed taking into consideration the following:

i. Annual Confidential Report (ACR) of the Officer for at least the preceding three years in the feeder category post; ii. Punishment awarded, if any;

iii.Disciplinary actions pending, if any, while working in the feeder category;

iv.Criminal/vigilance cases pending, if any:"

42. Sec.9(5) of the Kerala Devaswom Recruitment Board Act envisages that the Recruitment Board may issue general direction to Devaswom Boards, incidental to the functions of the Board, as are necessary for the conduct of examinations. It is argued W.A Nos.1042& 1241 of 2021 ..65..

by the writ petitioners that, in view of the mandate contained in Regulation 16(a) of the Guruvayur Devaswom Employees Regulations, the rules applicable to Government servants will also be applied in the case of promotions, and that therefore, the Rules contained in the Kerala State & Subordinate Services Rules ('KS & SSR' for short) may also appropriately apply. It is argued that the Recruitment Board has also conceded, as per Clause 5 of Part I of Ext.P-7 Administrative Circular, that the criterion for promotion to selection post will be on the basis of the items mentioned thereunder, which is broadly similar to the norms in the KS & SSR applicable for Government servants. Consequently, it is argued that the abovesaid criteria for promotion to selection post, conceded to by the Recruitment Board, cannot be envisaged as fulfilling the basic definition of 'examination', as contained in Rule 2(b) of the Kerala Devaswom Recruitment Board Rules, etc. Hence, it is argued by the writ petitioners that the provisions contained in the Kerala Devaswom Recruitment Board Act and the Rules framed thereunder would confer powers and functions to the Recruitment Board, only in respect of selections to be carried out W.A Nos.1042& 1241 of 2021 ..66..

on the basis of the method of direct recruitment in Devaswom Boards, and not in the case of other methods of appointments like promotion and by-transfer, etc. The essence of the argument is that the Recruitment Board can conduct any selection only on the basis of 'examination', as conceived in the Act and the Rules, and since the examination conceived in terms of Rule 2(b) and the norms for promotion to selection post as conceived in Regulation 16(a) of the Guruvayur Devaswom Employees Regulations, 1983 read with the KS & SSR are different and distinct. The inevitable fall out is that the Recruitment Board cannot have any power and function in relation to other methods of appointment like promotion and by-transfer appointment, for both selection posts as well as non-selection posts.

43. After hearing both sides, we are of the view that the abovesaid contentions of the writ petitioners are not tenable for reasons more than one. Sec.9(1)(i) conceives that the Board shall have the function to prepare select list for appointment of candidates to various posts mentioned therein. Clauses (ii), (iii) &

(iv) of Sec.9(1) are in the matter of conduct of written examination, W.A Nos.1042& 1241 of 2021 ..67..

interview and to prepare select list. The examinations like written examination, interview, physical efficiency test etc., conceived as per Rule 2(b) of the Rules, may ordinarily apply only in relation to selection by the method of appointment by direct recruitment. It may be true that, in view of the stipulation contained in Regulation 16(a) of the Guruvayur Devaswom Employees Regulations, 1983, the norms as per the KS & SSR may also apply in the context of promotions. True that the norms as per the KS & SSR for promotion to selection posts, to be effected by the DPC, does not envisage any written examination, interview, oral test, physical efficiency test, etc which are ordinarily meant for selection by direct recruitment. Merely because the term 'examination', appearing in Clauses (ii) to (iv) of Sec.9(1) and Sub Sections 2 to 5 of Sec.9, may be only in relation to selection by the method of direct recruitment, that by itself will not take away the powers and functions of the Recruitment Board, in the matter of preparing select list for appointments other than direct recruitment.

44. As mentioned hereinabove, there is no dispute that the provisions of the abovesaid Act and Rules would certainly apply for W.A Nos.1042& 1241 of 2021 ..68..

selection by the method of direct recruitment. It is possibly, understanding these aspects, about the impact of Regulation 16(a) of the Guruvayur Devaswom Employees Regulations, 1983, that the Recruitment Board has also consciously framed the criteria for promotion to selection post, based on merit-cum-suitability, in terms of Clause 5 of Part I of Ext.P-7 Administrative Circular, which appears to be broadly in consonance with the corresponding norms in the KS & SSR, meant for promotion to selection posts of Government servants. So long as the method of appointment involves the preparation of a select list, then the role and function of the Kerala Devaswom Recruitment Board cannot be, in any manner, belitted and diluted. The term 'select list' may apply not only in relation to selection by direct recruitment, as can be seen from Rule 2(h), but the same will also apply in relation to promotion to selection post, as opposed to promotion to non selection list. The provisions contained in the KS & SSR also speaks about the select list to be prepared by the DPC, for effectuating promotion to selection post by the method of merit and ability, where seniority comes into play, and only where merit and ability W.A Nos.1042& 1241 of 2021 ..69..

are approximately meagre. Both the terms 'examination' and 'select list', appearing in the Act, have not been defined in the Act. The said terms 'examination' and 'select list' have been defined as per Rule 2(b) and 2(h), respectively, of the Kerala Devaswom Recruitment Board Rules, 2015, framed under the 2015 Act. It may be true that the term 'examination', appearing in Rule 2(b), may broadly and predominantly apply in relation to selection by direct recruitment. But, the term 'select list', appearing in the Objective portion and Preamble of the Act as well as in the other provisions, as in Sec.9(1)(i), Sec.9(4) etc., will have to be understood in a more broader and more inclusive manner, than in the narrow manner, defined as per Rule 2(h) of the Rules.

45. This we say so, as, technically, the process of interview and examination, envisaged in Rule 2(h), may not be part of the norms conceived in Regulation 16(a) for promotion read with the KS & SSR, even for selection post. The term 'select list' will have to be, therefore, fully and properly understood in the context. This is all the more so, since the previous legislation, which governed the field in respect of the two important Devaswoms in the State, W.A Nos.1042& 1241 of 2021 ..70..

namely, the Travancore Devaswom Board and the Cochin Devaswom Board, was the Kerala Public Service Commission (Additional Functions as Respects the Administrative Services under Devaswom Boards) Act, 2008 (State Act 19 of 2008), whereby the selection process was entrusted to the Kerala Public Service Commission ('PSC' for short). The said Act was later repealed in the year 2014. As per the said Act, the PSC was entrusted only with the duty and function of selection by direct recruitment to the post of Officers and Employees of the Administrative Services of the two Devaswoms mentioned above. Whereas, the present Act would apply not only to the said two Devaswoms, but also to certain other Devaswoms including Guruvayoor Devaswom.

46. The present Kerala Devaswom Recruitment Board Act, 2015, uses a more broader and more inclusive language and terminology, both in the Objective portion as well as in the Preamble, and in the crucial provisions as in Secs.9(1)(i), 9(4), etc of the said Act compared with the corresponding provisions in the State Act 19 of 2008 as in Sub Section (1) of Sec.3 as well as in Clauses (a) & (b) of Sub Section (2) of Sec.3 thereof, which is W.A Nos.1042& 1241 of 2021 ..71..

confined only in the process of selection by direct recruitment. The present phraseology and language employed in the Objective portion as well as in the Preamble and in Sec.9(1)(i) & Sec.9(4) of the Kerala Devaswom Recruitment Board Act, 2015, is that the Devaswom Recruitment Board has been constituted for preparing select list of candidates for appointment in various posts other than hereditary posts and posts in the aided educational institutions in the Devaswom Boards, etc. So long as the process involved is the one like the select list for effecting method of appointment, such process of making select list for the said method of appointment would also be covered in the said Act, even if the said method of appointment is other than direct recruitment.

47. So, in other words, the next question is as to the scope and ambit of the process of preparation of select list for other methods of appointment like promotion and by-transfer. We have already dealt with the legal position well settled by a series of decisions rendered by the Apex Court on the subject, and about the inclusional distinction between 'promotion to selection post' and W.A Nos.1042& 1241 of 2021 ..72..

'promotion to non selection post', where the criteria for appointment of in-service candidates by promotion or by-transfer is, by the criteria of merit and ability. Seniority will come into play only when merit and ability are prospectively equal. Then, the process involved is promotion or by-transfer appointment to selection posts. For other criteria like seniority-cum-fitness, seniority, etc, there is no question of making any assessment or merit, and the senior person, who is ordinarily eligible and qualified, has to be considered for promotion, subject to the rejection of the unfit.

48. There is yet another important aspect of the matter. The Kerala Devaswom Recruitment Board Act, 2015 and the Rules framed thereunder, have been framed mainly for constituting the Devaswom Recruitment Board for preparation of select list of candidates for appointment in various posts other than hereditary posts and posts in aided educational institutions under the Devaswom Board in the State of Kerala, and for matters connected therewith or incidental thereto. None of the provisions of said Act confer power to the Board to frame any rules or regulations on the W.A Nos.1042& 1241 of 2021 ..73..

conditions of service of the Administrator and other officers and employees of the Devaswom, and other aspects like minimum qualification required to hold the post, the method of appointment etc, which would all continue to remain within the province of the Guruvayoor Devaswom Act, 1978, on the designated authorities constituted thereunder. Since, the power and function of selection, for making select list is conferred on the Devaswom Recruitment Board, as per the Devaswom Recruitment Board Act, the provisions contained in Sec.19 of the Guruvayoor Devaswom Act, as in Secs.19(3), 19(4) etc regarding selection of the officers and other employees of the Devaswom, to the extent it is entrusted to the Devaswom Recruitment Board as per the 2015 Act, would be effected and modulated.

49. For instance, prior to the commencement of the 2015 Act, the aspects relating to selection of the officers and employees of the Guruvayoor Devaswom could be made by the sub committees constituted by the Guruvayoor Devaswom Managing Committee from amongst its members as per Sec.19(3), and subject to the provisions of Secs.1, 2 & 3 of the 1978 Act, the procedure for W.A Nos.1042& 1241 of 2021 ..74..

selection and appointment of the officers and other employees of the Devaswom shall be such as determined by the Managing Committee, by the regulations made in that behalf. Those aspects relating to the selection process, which are otherwise available under Sec.19(3) & 19(4) of the Guruvayoor Devaswom Act, could be effected and modulated to the extent that the process of preparing select list is conferred on the Devaswom Recruitment Board. That is a clear impact of the non-obstante clause contained in Sec.9(1) of the 2015 Act.

50. A perusal of the Kerala Devaswom Recruitment Board Act and the Rules framed thereunder would make it clear that, the said Recruitment Board is not given any power to frame any regulations or rules for regulating the conditions of service of the officers and employees of the Devaswoms, or to lay down the minimum qualification, and methods of appointment to various posts under the Devaswom. Those aspects of the matter, relating to conditions of service, prescription of condition of service,minimum qualification, methods of appointment to various posts, etc., would continue to be within the sole province of the 1978 Act, and not W.A Nos.1042& 1241 of 2021 ..75..

under the 2015 Act. The said fine distinction, by way of compartmentalization, has to be clearly kept in mind, inasmuch as the impact of the 2015 Act is for conferring powers and functions to the Recruitment Board, for preparing select lists of various appointments under the Devaswoms mentioned therein. To that extent, Secs.19(3) & 19(4) of the Guruvayoor Devaswom Act, 1978 could be abridged and modulated. Hence, we are of the firm view that, where the process involves provisions of select lists, the same can be, not only for selection by way of direct recruitment, but also be for preparation of select list by the Departmental Promotion Committee ('DPC' for short), for effectuating promotion to selection posts, on the criteria of merit and ability, wherein seniority can play a role only when merit and ability are approximately equal.

51. This is all the more reinforced by the provisions contained in Rule 3 of Kerala Devaswom Recruitment Board Rules, 2015. Rule 3(1) stipulates that the Board shall have the power to prepare select list for the appointment of candidates in various posts, except hereditary posts, coming under the various Devaswom Boards and the Managing Committees. Sub Rule (2) of W.A Nos.1042& 1241 of 2021 ..76..

Rule 3 is in relation to direct recruitment and the provisions for community reservation, and we are not concerned with that. Rule 3(3) is very important and cardinal, and the same reads as follows:-

"(3) The candidates for appointment to the selection categories and grades of the service shall be chosen by the deparmental promotion committee consittuted by the Board. The Deparmental Promotion Committee shall consist of one member from the Board as Chairman, a member of the Devaswom Board as member and Convener and a member nominated by the Government. "

52. Rule 3(3) clearly mandates that candidates for appointment to the selection categories and grades of service shall be chosen by the DPC constituted by the Board, and the DPC shall consist of one member from the Recruitment Board as Chairman, a member of the Devaswom Board as a member and Convener, and a member nominated by the Government. The first part of Rule 3(3) would fully reinforce our abovesaid view and conclusion, inasmuch as it clearly mandates that candidates for appointment to the selection categories and grades of service shall be chosen by the DPC constituted by the Recruitment Board. In other words, the provisions contained in Sec.9(1)(i), Sec.9(4) etc. of the Kerala Devaswom Recruitment Board Act, 2015, regarding preparation of W.A Nos.1042& 1241 of 2021 ..77..

select list for methods of appointment other than direct recruitment, should be seen in the light of Rule 3(3) of the Kerala Devaswom Recruitment Board Rules, 2015. That, the preparation of select list, for methods of appointment other than direct recruitment, can be only for promotion to selection post, wherein the criteria is merit and ability, and that seniority will come into play only when merit and ability are approximately equal. The DPC concieved under Rule 3(3) is broadly analogous to the DPC conceived in Rule 28 of the KS & SSR Part II, except in its members constituting the same. In other words, even for methods of appointment other than direct recruitment, where the method of appointment is promotion or by-transfer, then the power and function of the Recruitment Board will come into play for preparation of select list through the DPC process, for effectuating promotion to selection post, on the criteria of merit and ability as above.

53. The abovesaid aspects are broadly in tune with the analogous provisions envisaged in Regulation 16(a) of the Guruvayur Devaswom Employees Regulations, 1983, and read with W.A Nos.1042& 1241 of 2021 ..78..

KS & SSR Part II. In other words, we are also equally and firmly of the view that for methods of appointment like promotion and by- transfer to non selection posts, wherein the criteria is other than merit and ability like seniority, seniority-cum-fitness etc, then there is no question of any select list of promotion or by-transfer appointment to selection post, inasmuch as, they are all non selection posts. Then, there is no question of preparation of any select list, as per the provisions contained in the Kerala Devaswom Recruitment Board Act, 2015, and the Rules framed thereunder. In other words, so long as the method of appointment is direct recruitment or by the method of promotion or by-transfer to selection posts, wherein the criteria is merit and ability as above, then certainly, the role and function of the Devaswom Recruitment Board would come into play, and the non obstante provision contained in Sec.9(1) will have its full amplitude vis-a-vis the other enactments like the Guruvayoor Devaswom Act, 1978, etc This is subject to the scenario that the Recruitment Board does not have the power or prescription in the matter of conditions of service, minimum qualifications, methods of appointment etc as per the W.A Nos.1042& 1241 of 2021 ..79..

2015 Act, which would all continue to be within the province of the 1978 Act.

54. This conclusion is all the more justified as it is an elementary aspect of the Service Law that, where the appointing authority and the selection authority are distinct and separate such as the State Government, State Public Service Commission, etc then, the matters in relation to prescriptions of conditions of service, minimum qualifications, methods of appointment etc could be within the domain of the appointing authority, and the selection authority may not have the power in the matter of prescription of conditions of service, minimum qualifications, methods of appointment, etc., except consultation, if it is mandated by the applicable law.

55. During the course of hearing, we had repeatedly queried to both the State Government as well as to the Devaswom Recruitment Board as to whether they have a case that the role and function of the Recruitment Board would apply not only in relation to promotion and by-transfer appointments to selection posts, but also to non selection posts wherein the criteria for appointment is seniority, seniority-cum-fitness, etc. The learned Senior W.A Nos.1042& 1241 of 2021 ..80..

Government Pleader, appearing for the respondent State Government, has fairly submitted before us that he had consulted with the Advocate General, and that the abovesaid views observed by us, in the course of hearing, is tenable and sustainable, etc. However, despite repeated queries, we did not get any specific and precise answer from the Devaswom Recruitment Board, and in one of the previous occasions, the answer appeared to be a little bit evasive. This may be presumably on account of the stand taken by the Devaswom Recruitment Board, in Ext.P-7 Administrative Circular No.1 /2016 dated 5.5.2016, wherein Clauses 1(b) & 1(c) of Part I thereof speak about posts to which promotions shall be given according to seniority, subject to a person's fitness for promotion, and posts to which promotions will be given on the basis of seniority alone, respectively. That is the criteria of seniority-cum- fitness and seniority, etc. Clause 1(a), Clause 2 and the subsequent Clauses appear to be in relation to promotion and appointment by-transfer, according to merit and ability.

56. It is recited in Ext.P-7 Administrative Circular that the same is issued purportedly, with reference to the provisions W.A Nos.1042& 1241 of 2021 ..81..

contained in Sec.9(5) of the Kerala Devaswom Recruitment Board Act, 2015. Sec. 9(5) of the Kerala Devaswom Recruitment Board Act, 2015 envisages that the Recruitment Board may issue general directions to the Devaswom Boards, incidental to the functions of the Board, as are necessary for the conduct of examinations.

57. We have already held that the Kerala Devaswom Recruitment Board Rules, 2015, have been framed as per SRO No.352/2015, published in Kerala Gazette No.1303 dated 30.5.2015. So, Rule 3(3) of the Kerala Devaswom Recruitment Board Rules, 2015 has been in the statute book since 30.5.2015, and the same has not been amended or altered in the manner known to law. Rule 3(3) clearly mandates that it is only candidates for appointment to the selection categories and grades of the service that is assigned to the DPC constituted by the Recruitment Board. None of the provisions contained in the Act and the Rules, even remotely envisage that the Recruitment Board has any power or function to deal with promotion and by-transfer appointments, where the method of appointment is other than merit and ability. W.A Nos.1042& 1241 of 2021 ..82..

In other words, the 2015 Act and the Rules framed thereunder does not confer any power to deal with promotion and by-transfer appointment to non selection posts, where the criteria for appointment is seniority, seniority-cum-fitness, etc. and in such cases, there is no question of the process of preparation of select list arising at all. So, it has to be observed that the Recruitment Board may have power to issue incidental directions, as per Ext.P7, subject to Regulation 16(a) and Government norms like KS & SSR for selection posts to the Devaswom Boards in matters relating to selection processes by the method of appointment of direct recruitment or by the method of appointment by promotion or by-transfer, wherein the criteria is merit and ability, as above, and not to non selection posts. Hence, it is only to be mentioned that the understanding of the Recruitment Board, as reflected in Ext.P7 Administrative Circular, is that they even have power to deal with promotion and by-transfer appointments to non selection posts, wherein the criteria is seniority, seniority-cum-fitness etc., is untenable and unsustainable in law and ultravires and the position in that regard is declared. The power to take decision to effect such W.A Nos.1042& 1241 of 2021 ..83..

promotions and by-transfer appointments to all non-selection posts will be exclusively with the Guruvayur Devaswom Managing Committee.

58. As mentioned hereinabove, the crucial aspect of the matter is as to whether the process effected by the Recruitment Board is the one which directly and substantially involved the process of preparation of select list for appointment to various posts, as discussed hereinabove. At the same time, we would also make it clear that, so long as the process is one in relation to preparation of select list, as above, then duties and functions can be conferred on the Recruitment Board to deal with the incidental issues of selection processes in such matters, but subject to Regulation 16(a) and Government norms like KS & SSR for selection posts.

59. Now, we will have to deal with yet another contention raised by the writ petitioners. The stand taken by the Guruvayoor Devaswom Board Managing Committee in Ext.P-13 is that, as far as the employees appointed to the services of the Guruvayoor Devaswom, prior to the coming into force of the Kerala Devaswom W.A Nos.1042& 1241 of 2021 ..84..

Recruitment Board Act, 2015, are concerned, they will be governed by the Guruvayur Devaswom Employees Regulations, 1983, which was in vogue at the time when they had entered service. In other words, the contention is that, for the employees appointed to the service of the Guruvayoor Devaswom, prior to 1.3.2014 (date of coming into force of the Kerala Devaswom Recruitment Board Act, 2015) , the provisions contained in the said 2015 Act and the Rules framed thereunder will not apply, and such employees will be governed by the Guruvayur Devaswom Employees Regulations, 1983, as the same was in vogue at the time when they had entered into service, etc.

60. We are not prepared to accept the said contention of the Guruvayoor Devaswom Board and the writ petitioners, as referred to in Ext.P-13, for reasons more than one. It is by now well settled that the right to be considered for promotion is only a right to be so considered in accordance with law. There is no general law that an employee has the right to be considered for higher promotion, by way of promotion or by-transfer appointments, in accordance with the rules and norms that existed at the time when W.A Nos.1042& 1241 of 2021 ..85..

they had entered into service in the initial entry posts. Ordinarily, where the rules and norms stipulate qualifications for promotion, then the issue as to whether the claimants for promotion have acquired those qualifications and eligibility conditions, as per the rules and norms, will have to be adjudged with reference to the state of affairs that existed at the time of occurrence of vacancy, unless otherwise prescribed by the rules. However, where the rules and norms itself are subsequently altered, amended or newly introduced, and promotions were not made initially at a time when the pre-revised norms and rules were in vogue, even then, it is well established that the employee's right to be considered for promotion is, only a right to be considered for promotion, in accordance with the rule and norms that were in force at the time when the consideration for promotion was effected. {See Deepak Agarwal & Ors. v. State of U.P. & Ors. [(2011) 6 SCC 725] D.Reghu & Ors. v. B.Vasaveswarudu & Ors. [(2020) 2 SCC 346], UOI & Ors. v. V.Krishnakumar & Ors. [(2019) 4 SCC 319] and Dr.Ramalu v. Dr.S.S.Rao [(1997) 3 SCC 59], etc.} W.A Nos.1042& 1241 of 2021 ..86..

61. When this is the well settled legal position in the matter, there is no question of any employee claiming that he has the right to be considered for promotion to a higher category of post, on the basis of the rules and norms in force at the time when he had initially entered into service in the lower entry level post. So, the abovesaid contention raised on behalf of the respondent Guruvayoor Devaswom Managing Committee and the writ petitioners is only to be rejected as untenable and unsustainable.

62. Directions and orders to be issued in these cases:

During the course of hearing in these cases, we were apprised that the competent authority of the respondent State Government, in the Revenue (Devaswom) Department, has issued Anx.R-1(a) G.O. (Rt.) No. 3244/2021/Rd. Dated 26.9.2021, ordering that Ext.P-13 proceedings, issued by the respondent Guruvayoor Devaswom Managing Committee, will stand cancelled and that the promotion list, published by the DPC, constituted by the Recruitment Board, should be effectuated by the Administrator, etc. Consequently, Anx.R-1(b) proceedings dated 29.9.2021 has also been issued by the Administrator of the Guruvayoor Devaswom, in pursuance of W.A Nos.1042& 1241 of 2021 ..87..

Anx.R-1(a) G.O. dated 26.9.2021. In the course of hearing in these cases, we made it clear that this appellate Court had never granted stay of operation of the impugned judgment rendered by the learned Single Judge in the WP(C), and all what has been directed was to be keep in abeyance the consequential judgment passed by the learned Single Judge in the Contempt Case arising out of the WP(C). Hence, we expressed our opinion that the abovesaid unilateral act on the part of the State Government and the Administrator, as per Anxs.R-1(a) & R-1(b), may amount to overreach of judicial process, inasmuch as the same may go against the impugned judgment of the learned Single Judge in the WP(C), more so particularly, as the said judgment in the WP(C) has never been stayed in these appeals. We also made it clear that the said view expressed by us was not on the merits of the matter, but only on account of the attitude shown by the respondent State Government and the Administrator in overreaching the judicial process, when the writ appeals are pending consideration and as the judgment of the learned Single Judge in the WP(C) has not been stayed.

W.A Nos.1042& 1241 of 2021 ..88..

63. So also, it has to be borne in mind that, the appointing authority continues to be the Guruyoor Devaswom Managing Committee, in accordance with the provisions contained in Sec.19(1) of the Guruvayoor Devaswom Act, 1978 and Regulation 16 of the Guruvayur Devaswom Employees Regulations 1983, framed under the 1978 Act. The power of appointment is not, in any manner, vested with the Recruitment Board, and their function is to prepare select list for promotion to selection post, on the basis of merit-cum-suitability criteria, and also selection for direct recruitment, based on the advice or recommendation of the DPC/Recruitment Board, as the case may be, based on the advice made by the DPC, constituted by the Recruitment Board, in the matter of promotion or by-transfer appointment in selection posts, and the advice made by the Recruitment Board for direct recruitment selections and it is for the appointing authority to issue the appointment order, etc.

64. Later, Sri.Antony Mukkath, learned Senior Government Pleader, had taken pro-active steps in the matter, after seeking advice of the learned Advocate General, and W.A Nos.1042& 1241 of 2021 ..89..

thereafter it was apprised to us that the Government has ordered to keep Anx.R-1(a) and the consequential proceedings in abeyance, pending consideration of the appeals, and that it will be subject to the result of the Writ Appeals, and that the Government will abide by the directions issued by this Court in that regard.

65. Further, Sri.K.Jaju Babu, learned Senior Counsel instructed by the Sri.Brijesh Mohan, learned counsel appearing for contesting respondents 1 to 3 in this appeal/writ petitioners, has also pointed out that, even uncommunicated adverse entries of the writ petitioners were relied on, to deny them promotion, by the DPC, constituted by the Recruitment Board, as per Ext.P-6, and further that all the Annual Confidential Reports ('ACRs' for short) of the relevant period in consideration for the select list year concerned, have not been taken into account, etc. Further, it was also submitted on behalf of the petitioners that, they could reliably learn that some or most of the adverse entries in their ACRs were already been expunged and removed by the competent appointing authority concerned, and even inspite of that, the DPC constituted by the Recruitment Board has not considered those aspects. W.A Nos.1042& 1241 of 2021 ..90..

66. We are of the firm view that the issuance of Anxs.R-1(a) & R-1(b) would amount to an overreach of the judicial process, inasmuch as the matters are pending consideration before the appellate Court, and the impugned judgment in the WP(C) has never been stayed by the appellant Court. Merely because the judgment rendered by the learned Single Judge in the Contempt of Court Case, arising out of the WP(C), was earlier stayed by this Court, would not amount to the abovesaid authorities arrogating to themselves the power to present fait accompli in pending matters. Hence, it is ordered that Anx.R-1(a), issued by the State Government and Anx.R-1(b), issued by the Administrator, will be purely provisional and temporary, and the promotions, if any, ordered thereon, shall be treated only as temporary or provisional promotions, and that by itself will not confer any right to such temporary promotees. Further, the DPC, constituted by the Devaswom Recruitment Board, in terms of Rule 3(3) of the Kerala Devaswom Recruitment Rules, 2015, will immediately consider the matters relating to promotion to selection posts, including the post of Manager, based on the settled finalized seniority and eligible W.A Nos.1042& 1241 of 2021 ..91..

field of choice, and also by taking into account only communicated entries in the ACRs. And if the previous adverse entries in the ACRs of any of the incumbents, including the writ petitioners, have been expunged by the competent authority, then only such revised ACRs should be taken into account in respect of such incumbents. Thereafter, the DPC will carefully proceed in the matter, after ascertaining all these relevant aspects, and then may proceed to consider effecting regular promotion to selection posts, including the post of Manager, on the basis of the criteria of merit and suitability, as above, and then do the entire exercise afresh, untrammelled and uninfluenced in any manner, by their actions previously effected in Ext.P-6, Anx.R-1(a), Anx.R-1(b) etc.

67. This has to be done independently and strictly in accordance with law, and this exercise would be confined only for promotion or by-transfer appointment to selection posts, wherein the criteria is on the basis of merit cum suitability. Seniority will come into play only when merit and suitability are equal or approximately equal. The said DPC, constituted by the Recruitment Board, will not have any role to consider promotion W.A Nos.1042& 1241 of 2021 ..92..

or by-transfer appointment to non selection posts, where the criteria is merit and ability like seniority, seniority-cum-fitness etc.

68. The abovesaid exercise of consideration of regular promotion to the selection post of Manager, by the criteria of merit and ability, should be duly finalized by the DPC within 2 months from the date of production of a certified copy of this judgment.

69. Before that, the incumbents including the writ petitioners, will be at liberty to place their aspects in the matter before the appointing authority, like matters relating to their ACRs, expunged ACRs, seniority position etc, and the appointing authority will give a detailed and precise report to the DPC, to enable them to ascertain all relevant and correct facts, and it is thereafter that the DPC should finalize the regular promotion to the selection post of Manager, in the manner indicated hereinabove.

70. The appointing authority and the DPC will ensure that all necessary care and precaution shall be taken to ensure that complaints, in the present nature, are avoided, so that only communicated entries in the ACRs are relied on and the ACRs of the relevant years are duly taken into account and the expunged W.A Nos.1042& 1241 of 2021 ..93..

ACRs and the reversed/revised ACRs, based on the expunged adverse remarks alone, should be taken into account, etc.

71. There is yet another aspect of the matter to be considered by this Court. The appeallant in W.A. No.1042/2021, who was the Administrator of the Devaswom, at the relevant time, had also filed Contempt Appeal (Civil) No.2/2021, to impugn the judgment dated 30.7.2021, rendered by the learned Single Judge in Cont. Case(C) No.1081/2021 (arising out the instant impugned judgment dated 24.6.2021 in WP(C).No. 10135/2021).

72. Initially we had granted stay in the said Contempt Appeal. Later, when the Contempt Appeal had come up for consideration on 22.12.2021, it is submitted by Sri.P.B. Krishnan, learned counsel appearing for the appellant in the said Contempt Appeal, on the basis of instructions, that his party has already filed a separate application in the Contempt Appeal, seeking leave of this Court to withdraw the above Contempt Appeal, inasmuch as the appellant has already retired from service, and that the Contempt Appeal may be dismissed as withdrawn. Accordingly, this Court recorded the abovesaid submission of the appellant W.A Nos.1042& 1241 of 2021 ..94..

therein, and has ordered that the interim stay order dated 20.9.2021 rendered by this Court in the Contempt Appeal will stand vacated, and that the above Contempt Appeal will stand dismissed as withdrawn.

73. We specifically queried as to whether the said appellant, in W.A. No.1042/2021, has filed the said Writ Appeal in his official capacity as the Administrator or not. The learned Standing Counsel for the Guruvayoor Devaswom Managing Committee has apprised us that the Guruvayoor Devaswom Managing Committee has never authorized the said Administrator to file any Writ Appeal, as above, and that the said Appeal may have been filed by the said official in his individual capacity, even though it is shown in the Appeal that it has been filed by him as the Administrator.

74. Sri.P.B.Krishnan, learned counsel appearing for the appellant in W.A. No.1042/2021, had submitted before us, on the basis of instructions, that the said appellant had filed the said Writ Appeal not to challenge any decision of the Guruvayoor Devaswom Managing Committee, but that, since his predecessor had earlier given an undertaking before the Apex Court, stating that all W.A Nos.1042& 1241 of 2021 ..95..

appointments in the Guruvayoor Devaswom will be made only in accordance with the provisions contained in the Kerala Devaswom Recruitment Board Act, etc, he was advised that if the impugned judgment of the learned Single in this WP(C) were implemented, then, it would amount to violation of the above undertaking, and it is only for that purpose, to safeguard him from any Contempt proceedings, he had filed the above Writ Appeal and later the above Contempt Appeal as well.

75. Further, Sri.P.B.Krishnan, learned counsel appearing for the appellant in W.A. No.1042/2021, would also apprise us that since the said Administrator had subsequently retired from service, and he has duly protected his rights and interests, in regard to his position, and if the judgment of the learned Single Judge is upheld, partly or fully, further action in that regard may have to be taken by his successor and not by him, and therefore, the Contempt Appeal became unnecessary, due to his retirement and hence, he had withdrawn the said Contempt Appeal, etc. This is the admitted case of the said appellant in Contempt Appeal (Civil) No. 2/2021 (who is also the appellant in W.A. No. 2014/2021 ). Hence, going W.A Nos.1042& 1241 of 2021 ..96..

by the abovesaid specific case of the party, it is only to be held that the present W.A. No.1042/2021 filed by him, not in his official capacity but in his individual capacity, has also become unnecessary, in view of his retirement. Hence, we indicated to Sri.P.B.Krishnan, learned counsel appearing for the said appellant that, that being so, it may not be proper for us to entertain the said writ appeal on merits, and that the said Writ Appeal No.1042/2021 is only to be dismissed as withdrawn, as has been done in the case of Contempt Appeal (Civil) No.2/2021.

76. Sri.P.B.Krishnan, learned counsel appearing for the appellant in W.A. No.1042/2021, has further submitted on the basis of instructions that, his party has no objection to the said course of action.

77. In the light of these aspects, it is only to be ordered that W.A. No.1042/2021 is only to be dismissed as unnecessary for the above reasons and the same need not be entertained any further.

78. Issues not decided by this Court in this case:

Sri.K.Jaju Babu, learned senior counsel instructed by Sri.Brijesh Mohan, learned counsel appearing for contesting respondents 1 to 3 W.A Nos.1042& 1241 of 2021 ..97..

in W.A./writ petitioners, would submit that Rule 3(3) of the Kerala Devaswom Recruitment Rules, 2015, empowers the Recruitment Board to constitute the DPC, wherein one member thereof is from the Recruitment Board as Chairman of the DPC, another member is of the Devaswom Board as a member and Convener of the DPC, and one member will be nominated by the Government. Hence, it is submitted before us that the majority of the members in the said DPC are not representatives of the Guruvarur Devaswom Board/Managing Committee.

79. In that regard, it is pertinently argued that, even in Government appointments, direct recruitment is entrusted with an outside selection agency, like the State Public Service Commission, in the case of State Services, Union Public Service Commission/Staff Selection Commission, in the case of the Union Government Services etc. But, consistently, for appointments by promotion or by-transfer of in-service employees to higher category posts, be it especially for selection posts, the DPC will consist of 3 members, out of which 2 members would be representing the appointing authority and only 1 member will be W.A Nos.1042& 1241 of 2021 ..98..

an outsider who is normally the member of the PSC, etc.

80. Further that, ordinarily, it may be that direct recruitment may have to be effected predominantly from all outsiders, and even the employer/appointing authority may not be having any knowledge or exposure to open candidates who are outsiders, and the appointing authority/employer may not also have the proper ways and means of assessing the merits of such open candidates for effecting direct recruitment selection, especially in the matter of conduct of written competitive examination, interview and other tests. That, it is to ensure that these deficiencies of the appointing authority/employer are remedied while effecting the method of direct recruitment, that many a time, ordinarily, the power of selection may be entrusted to an outside agency like the Union or State Public Service Commission etc, who are specilized agencies who have the means and equipments to properly conduct written examination, interview and other tests, to assess the merits of the candidates of direct recruitment. But, such is not the state of affairs in the case of promotion/by-transfer appointments of in-service employees in W.A Nos.1042& 1241 of 2021 ..99..

any organization. Further that, ordinarily, the appointing authority/employer will be having more intimate knowledge and exposure about their in-service employees, and they are best equipped to handle career advancement aspects like promotion, by-transfer appointments etc. of the in-service employees. Further that, the said aspect of control and regulation of such in-service career advancement appointments have to be vested with the appointing authority, as it is also part of their prerogative managerial rights as the employer.

81. It is in view of these aspects that ordinarily, even while constituting DPCs, for promotion or by-transfer appointments for selection posts, on the basis of merit-cum-suitability, the majority of the members would be representing the appointing authority, and only one member may ordinarily be representing an outside agency, like the PSC or an expert selection agency. In the instant case, the said cardinal aspect of the matter has been completely violated, inasmuch as only one member of the DPC is representing the Devaswom. The other 2 members are outsiders, inasmuch as they are not representatives of the employer Devaswom. In that regard, W.A Nos.1042& 1241 of 2021 ..100..

the writ petitioners/respondents 1, 2 & 3 have also urged the following contentions in paras 5, 6 & 7 of the reply affidavit dated 7.12.2021 filed by them in W.A. No.1042/2021, which read as follows:-

"5. Originally, Section 20 of the Guruvayur Devaswom Board Act 1971 provided for the appointment of officers and other employees. As per the said provision appointment of all officers and employees of the temple were to be made by a Board consisting of (a) the Commissioner who shall be the Chairman (b) the Administrator (c) an Officer professing Hindu Religion authorised by the District Collector, Thrissur in that behalf and two persons selected by the Committee from amongst its members. Thus the composition of the committee was such that there was an over-whelming predominance of the Government nominees. The Full Bench of this Hon'ble Court found that in so far as Section 20 confers the power of appointment of officers and employees of the temple not on the Managing Committee but on a separate and independent body namely the Board it must be held that the section is violative of Article 26(a)(b) and (d) of the Constitution of India (1979 KLT 350 FB).

6. Thereafter, the Guruvayur Devaswom Act 1978 was promulgated which came into force on 19.03.1978. Section 19 of the Guruvayur Devaswom Act 1978 (in short the Act) provides for the appointment of officers and employees, which reads as follows;

19. Appointment of officers and employees.-

(1) Appointment of all officers and other employees of the Devaswom shall be made by the Committee. (2) Ten % of the posts in each grade of the officers and other employees of the Devaswom shall be reserved for the Scheduled Castes and the Scheduled Tribes, of whcih on-fifth shall be reserved for the Scheduled Tribes.

(3) Selection of the officers and other employees of the Devaswom may be made by sub-committee constituted by the Committee from among its members; Provided that selection of employees to be in charge of the rituals and other ceremonies of the Temple shall not be made by any sub-committee of which the Thantri of the Temple is not a member.

W.A Nos.1042& 1241 of 2021 ..101..

(4) Subject to the provisions of sub-sections (1), (2) and (3), the procedure for the selection and appointment of officers and other employees of Devaswom shall be such as may be determined by the Committee by regulations made in this behalf.

7. The scope of the above provision is again considered by the Full Bench of this Hon'ble Court in the decision reported in 1985 KLT 629 (FB) as follows;

Section 19 of the Act invests the Committee with power to appoint all officers and other employees of the Devaswom. Selection of officers and employees is to be made by a sub- committee constituted by the Committee from among its members and the procedure for selection is to be determined by the Committee by regulations made in that behalf. S.19 is in recognition of the right of the denomination to administer its properties. S.20 of the Act requiring the Committee from time to time to submit to the Commissioner proposals for fixing the dittam or scale of expenditure to the Devaswom, publication of the proposals and scrutiny by the Commissioner with power of modification vested in him are all in the interests of the Devaswom and cannot be assailed as violative of Art.26(d) of the Constitution. Sub-s.(4) of S.20 authorises the Committee to file a suit to set aside or modify any order passed by the Commissioner altering or modifying the proposals submitted by the Committee. The provisions of S.20 are similar to the provisions of S.54 of the Madras H.R. & C.E. Act found valid by the Supreme Court in the Commr. H.R.E. v. L.T.Swamiar.

Section 19 is to be considered in recognition of the right of the denomination to adminster its properties and held valid. "

82. Further it is also submitted by Sri.K.Jaju Babu, learned Senior Counsel, that the present provision made in the Kerala Devaswom Recruitment Board Act, 2015 and the Devaswom Recruitment Board Rules, 2015 entrusting the power of appointment by promotion/by-transfer to selection posts, would be nullifying the rights of administration guaranteed to religious W.A Nos.1042& 1241 of 2021 ..102..

denomination represented by the Guruvayoor Devaswom in terms of Article 26 of the Constitution of India. Further that, even the constitution of the DPC making the provisions in the rules, in not giving majority of the membership in the DPC to the representatives of the Devaswom, would certainly amount to abridgement of the Constitutionally guaranteed Right under Article 26 of the Constitution of India, which is for the protection of religious denomination, and that the Devaswom is representing the religious denomination as understood in Article 26.

83. Sri.P.B.Krishnan, learned counsel appearing for the appellant would point out that the abovesaid contentions of the writ petitioners based on Article 26(d) of the Constitution of India cannot be claimed by them, and at any rate, the Apex Court in the judgment rendered in the case in M.P.Gopalakrishnan Nair & Anr. v. State of Kerala & Ors. [(2005) 11 SCC 45] has held that such a Fundamental Right under Article 26 of the Constitution of India for religious denomination, could not be claimed in the case of temple believers of Guruvayoor Devaswom, etc.

84. This contention is rebutted by the learned Senior W.A Nos.1042& 1241 of 2021 ..103..

Counsel appearing for the writ petitioners, who would also make an alternate plea that, the very act of entrusting the power to the DPC, after taking it away from the appointing authority, and also the act of not giving majority membership to the Devaswom Managing Committee in the DPC, would amount to an unreasonable action in taking away the power of said appointing authority, and hence, would be violative of Articles 14 & 16 of the Constitution of India, for the earlier stated reasons etc.

85. We do not propose to adjudicate any of these issues, as the same have not been directly and substantially raised in the present writ proceedings. True, that some of these contentions have been raised in the reply affidavit filed by the writ petitioners. Hence, it is made clear that, in case the writ petitioners or any other aggrieved persons have any such issues, it is for them to raise those matters in appropriate litigative writ proceedings and raise them for adjudication in the manner known to law. Such liberty is accorded to the writ petitioners or any other aggrieved persons. We make it clear that we have not examined the merits of those rival contentions and have only given liberty to raise it in W.A Nos.1042& 1241 of 2021 ..104..

appropriate proceedings in the manner known to law.

86. Conclusions : The upshot of the above discussion is as follows:-

(i) There is no dispute that the provisions contained in the Kerala Devaswom Recruitment Board Act, 2015 and the Rules framed thereunder, confer power and function to the said Recruitment Board to prepare select list, for effecting direct recruitment to various posts, conceived in terms of Sec.9(1), where the method of appointment to fill up such post, as per the Rules, is direct recruitment.

(ii) In view of the non obstante clause contained in Sec.9(1)(i) of the Kerala Devaswom Recruitment Board Act, 2015 and the Rules framed thereunder, the Departmental Promotion Committee, constituted by the Recruitment Board, will have the power and function to prepare select lists for effecting appointment by way of promotion or by-transfer to selection posts, wherein the criteria is on the basis of merit and ability, and wherein seniority will come into play only when merit and ability are approximately equal, etc. W.A Nos.1042& 1241 of 2021 ..105..

However, the said Recruitment Board or the DPC will not have the power or function in the case where the method of appointment is by promotion or by-transfer to non selection posts, wherein the criteria is other than merit and ability, especially when the criteria is seniority, seniority-cum-fitness etc. The power to take decisions to effect such promotion or by-transfer appointments to all non-selection posts will be exclusively with the Guruvayur Devaswom Managing Committee.

(iii) The promotions ordered, as per Anx.R-1(a) G.O. (Rt.)No.3244/2021/Rd dated 26.9.2021 and the consequential Anx.R-1(b) proceedings No. B1-1255/2020 dated 29.9.2021, issued by the Administrator of the Guruvayoor Devaswom, in pursuance of Ext.P-6 will be purely provisional and temporary, and no rights will be conferred on such temporary/provisional promotees, for the reasons stated hereinabove.

(iv) The appointing authority will immediately give details of the seniority position, field of choice, details of the W.A Nos.1042& 1241 of 2021 ..106..

communicated ACRs of the claimant incumbents, details of the expunged ACRs and the revised ACRs to the DPC constituted by the Recruitment Board under Rule 3(3) above, for the purpose of consideration by the DPC, for regular promotion to selection posts, including the post of Manager, without any further delay and this process may be completed immediately.

(v) Thereafter, the DPC, constituted by the Recruitment Board, will consider the entire matter afresh, and take appropriate action regarding regular promotions to be made to selection posts, like Manager, etc and in that regard, it shall be ensured that only communicated adverse entries of the incumbents shall be taken into account, and expunged ACRs shall not be taken into account, and in this case, revised ACRs alone should be taken into account, and after taking into consideration all relevant aspects of the matter, the DPC will issue a fresh select list for promotion to such selection posts, like Manager, etc without any further delay, and the entire W.A Nos.1042& 1241 of 2021 ..107..

process in that regard may be duly completed by the appointing authority and the DPC within 2 months from the date of receipt of a copy of this judgment.

(vi) The contentions of the writ petitioners, based on the alleged infringement of the Fundamental Rights of Religious Denomination in terms of Article 26(d) of the Constitution of India, and also the alleged violation of Articles 14 & 16 of the Constitution of India, in view of the entrustment of promotion aspects of selection posts to the DPC, in which the Devaswom has only minority representation, are left open to be raised and decided by them in appropriate writ litigative proceedings, in the manner known to law. It is made clear that, such issues have not been decided by this Court in any manner.

(vii) The impugned judgment dated 24.06.2021 in W.P.(C) No.10135/2021 will stand modified and substituted as above.

With these observations and directions, the above W.A.No.1241/2021, filed by the Kerala Devaswom Recruitment W.A Nos.1042& 1241 of 2021 ..108..

Board will stand finally disposed of as above. W.A. No.1042/2021 will stand dismissed as unnecessary for the above reasons.

Sd/-

ALEXANDER THOMAS, JUDGE Sd/-

VIJU ABRAHAM, JUDGE Skk VGD MMG//V0 VGD9042022 APPENDIX OF WA 1241/2021 PETITIONER ANNEXURES:-

Annexure A1 TRUE COPY OF THE MINUTES OF THE JOINT MEETING DATED 23.2.2018 Annexure A2 A COPY OF THE RESOLUTION DATED 23.3.2018 Annexure A3 TRUE COPY OF THE CIRCULAR NO.1 OF 2016 DATED 5.5.2016 RESPONDENT ANNEXURES:-

Annexure R1(A) TRUE COPY OF THE AFFIDAVIT FILED IN CONT.CASE NO 2067/2021 FILED BY THE PRESENT ADMINISTRATOR ON 27.1.2022 Annexure R1(B) TRUE COPY OF THE ORDER DATED 27.1.2022 IN CON (C) NO 2067/2021 OF THIS HON'BLE COURT W.A. Nos.1042 & 1241 of 2021 APPENDIX OF WA 1042/2021 PETITIONER ANNEXURES:-

Annexure A DATED 23/03/2018 - TRUE COPY OF THE MINUTES OF MEETING.

Annexure B DATED 10/04/2018 - TRUE COPY OF THE RESOLUTION NO.20.

RESPONDENT ANNEXURES:-

Annexure R1(A) TRUE COPY OF THE GOVERNMENT ORDER VIDE GO(RT) NO.3244/2021/REV DATED 26.9.2021. Annexure R1(B) TRUE COPY OF THE ORDER/PROCEEDINGS VIDE NO. B1-1255/2020 DATED 29.9.2021 ISSUED BY THE 1ST RESPONDENT IN I.A. /APPELLANT IN WRIT APPEAL.

Annexure R1(C) TRUE COPY OF THE ORDER/PROCEEDINGS NO.

B1-1255/2020 DATED 30.9.2021 ISSUED BY THE 1ST RESPONDENT IN I.A. /APPELLANT IN WRIT APPEAL.

Annexure R1(D) TRUE COPY OF THE RESOLUTION OF THE MANAGING COMMITTEE OF THE GURUVAYUR DEVASWOM DATED 01.12.2021 OBTAINED UNDER RIGHT TO INFORMATION ACT.

Annexure R1(E) TRUE COPY OF THE RESOLUTION NO.2 OF THE MANAGING COMMITTEE OF THE GURUVAYUR DEVASWOM DATED 01.07.2021.

Annexure R1(F) TRUE COPY OF THE JUDGMENT DATED 07.07.2021 IN W.P.(C).NO.10671/2021 OF THIS HON'BLE COURT.

Annexure R1(G) TRUE COPY OF THE CIRCULAR/COMMUNICATION VIDE NO.1455/2014 DATED 10.01.2022 PUBLISHED BY THE ADMINISTRATOR.

Annexure R1(H) TRUE COPY OF THE AFFIDAVIT FILED IN CONT.

CASE NO.2067/2021 FILED BY THE PRESENT ADMINISTRATOR ON 27.01.2022.

Annexure R1(I) TRUE OF COPY THE ORDER DATED 27.01.2022 IN CONT.CASE(C). NO. 2067/2021 OF THIS HON'BLE COURT.

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