Kerala High Court
Anilkumar.M vs Travancore Devaswom Board on 28 March, 2022
Author: Murali Purushothaman
Bench: Murali Purushothaman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
MONDAY, THE 28TH DAY OF MARCH 2022 / 7TH CHAITHRA, 1944
WP(C) NO. 35627 OF 2018
PETITIONER:
ANILKUMAR M
AGED 52 YEARS
THETTIYARATHALA VILA VEEDU,
AMACHAL, AMACHAL P.O,
KATTAKKADA - 695 572.
BY ADVS.
SRI. SREEDHAR RAVINDRAN
SMT. LAKSHMI RAMADAS
RESPONDENTS:
1 TRAVANCORE DEVASWOM BOARD
REPRESENTED BY ITS SECRETARY,
OFFICE OF THE TRAVANCORE DEVASWOM BOARD,
NANTHANCODE,
THIRUVANANTHAPURAM - 695 034.
*2 THE CHAIRMAN
KERALA DEVASWOM RECRUITMENT BOARD,
NANTHANCODE, THIRUVANANTHAPURAM - 695 034.
*IS CORRECTED AND SUBSTITUTED AS THE DESCRIPTION OF THE
2ND RESPONDENT AS KERALA DEVASWOM RECRUITMENT BOARD,
REPRESENTED BY ITS SECRETARY,
NANTHANCODE, THIRUVANANTHAPURAM - 695 034.
AS PER ORDER DATED 13-10-2021 IN IA 1/2020 IN
WP(C)35627/2018.
3 DEVASWOM CHIEF COMMISSIONER,
TRAVANCORE DEVASWOM BOARD,
NANTHANCODE,
THIRUVANANTHAPURAM - 695 034.
SRI. G.BIJU - SC, TRAVANCORE DEVASWOM BOARD
SRI. V.V.NANDAGOPAL NAMBIAR - SC, KDRB
SRI. K. SASIKUMAR - SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
28.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.35627 OF 2018
2
JUDGMENT
The petitioner is working as a Watcher in Kulasekharam Devaswom under the Travancore Devaswom Board (for short 'the TDB'). He entered in service on 25.02.2004 and is continuing as such. According to the petitioner, there is a post of Assistant Public Relations Officer in the TDB which is to be filled by way of transfer from the category of low paid employees in terms of Rule 4 of Travancore Devaswom Board Low Paid Employee's Appointment As Clerk/Sub Group Officer Rules, 1990 (for short 'the Rules 1990'). The qualification prescribed for the said post is Graduation and Diploma in Journalism. According to the petitioner, being a low paid employee in the TDB, he is entitled for promotion to the post of Assistant Public Relations Officer since he WP(C).No.35627 OF 2018 3 possessed the required qualification. The post of Assistant Public Relations Officer in TDB became vacant in the year 2007 and the petitioner became qualified for appointment to the said post in the year 2010. The petitioner, therefore, approached the TDB with a request to promote him as Assistant Public Relations Officer.
2. By Ext.P5, the TDB rejected the request of the petitioner on the ground that the post of Assistant Public Relations Officer is coming within the purview of the posts for which recruitment has been entrusted with the Public Service Commission. The petitioner again made a representation in the year 2013, which was rejected by Ext.P9, stating that Kerala Devaswom Recruitment Board is in the process of being constituted and the petitioner can make application for promotion when the Recruitment WP(C).No.35627 OF 2018 4 Board invites application to the said post.
3. The learned counsel for the petitioner submits that, on 03.06.2013, the TDB took a decision to fill up the post of Assistant Public Relations Officer by way of promotion from the cadre of low paid employees. Ext.P10 is the minutes of the meeting of the TDB with the representatives of an employees Union of the TDB. From Ext.P10, it is seen that pursuant to the demand of the Union, the TDB has taken a decision to include the post of Assistant Public Relations Officer within the purview of posts to be filled up from eligible low paid employees. However, it was resolved that further proceedings pursuant to the said decision would be taken by the TDB after examining the legal aspects.
4. Since no steps were taken pursuant to Ext.P10, the petitioner approached this Court by filing WP(C).No.35627 OF 2018 5 W.P.(C) No.7038 of 2014 for direction to the TDB to promote him to the post of Assistant Public Relations Officer. The said writ petition was disposed of by this Court by Ext.P11 judgment directing the TDB to consider the representation submitted by the petitioner. Pursuant to Ext.P11 judgment, the TDB considered the request of the petitioner and by Ext.P12 order rejected the same stating that the post of Assistant Public Relations Officer is a post which is to be filled up only by direct recruitment and that the petitioner can apply for the said post as and when the Kerala Devaswom Recruitment Board is constituted. The petitioner challenged Ext.P12 order before this Court in W.P. (C) No.28429 of 2014 and by Ext.P13 judgment, this Court directed the TDB to consider whether the petitioner can be shifted to the post of Assistant Public Relations Officer and if that WP(C).No.35627 OF 2018 6 can be done, the same shall be placed before the Kerala Devaswom Recruitment Board and the Recruitment Board shall take appropriate decision in the matter in accordance with law. The Court also made it clear that, while taking a decision as above, the TDB shall consider whether it is required to abolish the post of Assistant Public Relations Officer or not.
5. Pursuant to Ext.P13 judgment, the TDB passed Ext.P14 rejecting the petitioner's request stating that the post of Assistant Public Relations Officer is not a promotion post and the said post has to be filled by direct recruitment. It is further stated therein that the appointment to the post of Assistant Public Relations Officer by direct recruitment can only be made by the Kerala Devaswom Recruitment Board. The petitioner has filed this writ petition WP(C).No.35627 OF 2018 7 challenging Ext.P14 and for a direction to the 1 st respondent TDB to promote him to the post of Assistant Public Relations Officer and also for a declaration that the vacancies which arose prior to the date of commencement of the Kerala Devaswom Recruitment Board Act, 2015 have to be filled up by applying the law as it existed on the date of occurrence of vacancy.
6. According to the petitioner, the vacancy in the post of Assistant Public Relations Officer arose in the year 2007. Since 35% of the posts under the category of Lower Division Clerk/Sub Group Officer Grade-II under the TDB has to be filled up by transfer from eligible low paid employees, the petitioner is entitled to be promoted to the post of Assistant Public Relations Officer.
7. A statement has been filed on behalf of the WP(C).No.35627 OF 2018 8 TDB wherein it is contended that the post of Assistant Public Relations Officer is not a promotion post of the low paid employees and there is no rule providing promotion to the post of Assistant Public Relations Officer from low paid employees. It is also stated that at present, there is no post of Assistant Public Relations Officer in the TDB.
8. A statement has been filed on behalf of the Kerala Devaswom Recruitment Board wherein it is stated that the post of Assistant Public Relations Officer in the TDB is not earmarked for low paid employees as promotion post. It is also pointed out that the Kerala Devaswom Recruitment Board Act, 2015 came into force on 01.03.2014 and since the TDB has not filled up the vacancy in the post of Assistant Public Relations Officer before the constitution of the Kerala Devaswom Recruitment WP(C).No.35627 OF 2018 9 Board, the said vacancy cannot be filled up by the TDB and the same has to be reported to Kerala Devaswom Recruitment Board. In the statement, the Kerala Devaswom Recruitment Board has also relied on Section 9 (1)(i) of the Kerala Devaswom Recruitment Board Act, 2015 which reads as follows:-
"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 hereditary posts and posts in the aided educational institutions in the Devaswom Boards as per the provisions of this Act, Rules and Regulations."
9. It is further stated that, after the enactment of Kerala Devaswom Recruitment Board Act, 2015, the TDB has no authority to recruit personnel even if the occurrence of vacancy was well before the date of enactment of the 2015 Act.
10. Heard Sri.Sreedhar Ravindran, the learned WP(C).No.35627 OF 2018 10 counsel for the petitioner, Sri.G.Biju, the learned Standing Counsel for the Travancore Devaswom Board and Sri.V.V.Nandagopal Nambiar, the learned Standing Counsel for the Kerala Devaswom Recruitment Board.
11. According to Sri.Sreedhar, the learned counsel for the petitioner, the post of Assistant Public Relations Officer is a post which has to be filled up by transfer from low paid employees as per the Rules, 1990. The learned counsel contends that the vacancy in the post of Public Relations Officer arose in the year 2007 and the petitioner became qualified in the year 2012. He submits that, after 2007, the vacancy in the post of Assistant Public Relations Officer is not filled up. Since the petitioner is qualified for the said post, the TDB ought to have promoted him to the post of Assistant Public WP(C).No.35627 OF 2018 11 Relations Officer. Sri.Sreedhar also relies on Ext.P10 decision of the TDB whereby a decision has been taken to include the post of Assistant Public Relations Officer in the category of posts which can be filled up by transfer from eligible low paid employees. Sri.Sreedhar has relied on the decisions reported in State of Kerala v. Dr. C.R Sobhana [2021 (4) KLT SN 30 (C.No.21) : 2021 (2) KLT Online 1058], James Thomas v. Chief Justice [1977 KLT 622 (F.B.)], Varghese v. State of Kerala [1981 KLT 458 (F.B.)] and M.L Joseph Francis v. Thomas P.Joseph [2007 (3) KLT 724 (D.B)] to contend that the right of a person for promotion to a post is as on the date of occurrence of the vacancy. Sri.Sreedhar, therefore, contends that since the vacancy has arose in the year 2007, as per the Rules then in force, the petitioner is entitled to be promoted as Assistant WP(C).No.35627 OF 2018 12 Public Relations Officer. He also points out that the Kerala Devaswom Recruitment Board Act came into force only on 01.03.2014 and the vacancy in the post of Assistant Public Relations Officer arose much before that date and the petitioner became qualified before the Act came into force. Therefore, it is contended that the petitioner has to be promoted to the post of Assistant Public Relations Officer as per the Rules which were in force prior to 01.03.2014. It is further contended that, even if the recruitment process has been left to be done by the Kerala Devaswom Recruitment Board, the same shall be done as per the Rules then in force.
12. The learned Standing Counsel for the TDB submits that, the post of Assistant Public Relations Officer is not a promotion post of low paid employees and there is no rule providing for promotion to the WP(C).No.35627 OF 2018 13 post of Assistant Public Relations Officer from low paid employees. According to the learned Standing Counsel, as per the Travancore Devaswom Board Servants Service Recruitment Rules, the said post is to be filled up by direct recruitment and at present, they are not intending to fill up the post of Assistant Public Relations Officer and decision has been taken to abolish the said post. Accordingly, the vacancy in the said post is not reported to Kerala Devaswom Recruitment Board.
13. The learned Standing Counsel for the Kerala Devaswom Recruitment Board submits that, after the Recruitment Board has been constituted in view of the provision under Section 9(1)(i) of the Kerala Devaswom Recruitment Board Act, 2015, the selection process for appointment of staff in the TDB is carried only through Kerala Devaswom Recruitment WP(C).No.35627 OF 2018 14 Board and that the TDB has no Authority to recruit personnel either by direct recruitment or by promotion, even if the occurrence of vacancy was well before the date of enactment of the Act. The learned Standing Counsel relies on the decision reported in Rajani P.Kuttan and Another V. State of Kerala and Others [2021 (6) KHC 513] in support of the said contention.
14. As per Travancore Devaswom Board Officers' and Servants' Service Rules, as amended from time to time, the post of Assistant Public Relations Officer has to be filled up by direct recruitment. Further, the post of Assistant Public Relations Officer is not included in the list of posts which has to be filled up by appointment by transfer from eligible low paid employees.
15. The petitioner cannot contend that the WP(C).No.35627 OF 2018 15 petitioner shall be appointed by promotion to the post of Assistant Public Relations Officer. The petitioner has not produced any materials to show that the post of Assistant Public Relations Officer is included in the list of posts which has to be filled up by appointment by transfer from eligible low paid employees. Since the post of Assistant Public Relations Officer is a post earmarked for direct recruitment as per the service rules, the petitioner is not entitled to be promoted to the said post. No provision is brought to my notice to show that the said post is one required to be filled up by promotion. Therefore the petitioner cannot have any indefeasible right to be promoted to the post of Assistant Public Relations Officer.
16. From Ext.P10, it is seen that it is only a decision taken by the TDB in a meeting with a Trade WP(C).No.35627 OF 2018 16 Union wherein, the TDB resolved to include certain posts including the post of Assistant Public Relations Officer in the category of posts to be filled up by appointment by transfer from low paid employees. In Ext.P10 minutes itself, it is stated that further steps pursuant to the said decision will be taken after examining the legal aspects of the matter. Therefore, the said decision of the TDB will not partake the form of any recruitment Rules whereby the petitioner can claim promotion to the post of Assistant Public Relations Officer. It is not pointed out that, pursuant to Ext.P10, the TDB has included post of Assistant Public Relations Officer in the category of posts to be filled up by transfer from low paid employees.
17. Therefore, the prayer of the petitioner for promotion to the post of Assistant Public Relations Officer is only to be rejected.
WP(C).No.35627 OF 2018 17 In view of my finding that the petitioner is not eligible to be promoted to the post of Assistant Public Relations Officer, the question as to whether the vacancies which arose prior to the date of commencement of the Kerala Devaswom Recruitment Board Act, 2015 has to be filled up by the TDB as per the law which existed at the relevant time or by the Kerala Devaswom Recruitment Board, does not arise for consideration.
Accordingly, the writ petition is dismissed. No order as to costs.
Sd/-
MURALI PURUSHOTHAMAN JUDGE SPR WP(C).No.35627 OF 2018 18 APPENDIX PETITIONER'S EXHIBITS:-
EXHIBIT P1 TRUE COPY OF THE NOTIFICATION DATED 08.06.2010.
EXHIBIT P2 TRUE COPY OF THE NOTIFICATION AMENDING RULE DATED 06.03.2012.
EXHIBIT P3 TRUE COPY OF THE B.A. CERTIFICATE ISSUED BY THE UNIVERSITY OF KERALA.
EXHIBIT P4 TRUE COPY OF THE DIPLOMA IN JOURNALISM CERTIFICATE.
EXHIBIT P5 TRUE COPY OF THE COMMUNICATION ISSUED BY THE IST RESPONDENT DATED 29.01.2010.
EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS OF THE IST RESPONDENT DATED 01.07.2010.
EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS OF THE IST RESPONDENT DATED 30.04.2012.
EXHIBIT P8 TRUE COPY OF THE PROCEEDINGS OF THE IST RESPONDENT DATED 20.06.2013.
EXHIBIT P9 TRUE COPY OF THE COMMUNICATION ISSUED BY THE IST RESPONDENT DATED 13.12.2013.
EXHIBIT P10 TRUE COPY OF THE MINUTES OF THE MEETING OF THE BOARD DATED 03.06.2013. EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 12.03.2014 IN WPC NO.7038/2014.
EXHIBIT P12 TRUE COPY OF THE ORDER ISSUED BY THE SECRETARY OF THE BOARD DATED 10.07.2014.
EXHIBIT P13 TRUE COPY OF THE JUDGMENT IN WPC NO.28429/2014 DATED 04.12.2017.
EXHIBIT P14 TRUE COPY OF THE ORDER ISSUED BY THE IST RESPONDENT DATED 30.01.2018.
EXHIBIT P15 TRUE COPY OF THE ORDER ISSUED BY THE TRAVANCORE DEVASWOM BOARD DATED 10.05.2016 NO.ROC NO.87/12/EST-I. WP(C).No.35627 OF 2018 19 EXHIBIT P16 TRUE COPY OF THE COMMUNICATION FROM THE COMMISSIONER AND SECRETARY TO GOVERNMENT ADDRESSED TO THE HON'BLE JOINT DIRECTOR, RAJENDRA PRASAD INSTITUTE OF COMMUNICATION & MANAGEMENT DATED 16.06.1984.
RESPONDENTS EXHIBITS:-
ANNEXURE R1(a) TRUE COPY OF THE JUDGMENT IN W.A NO.2205/2017 DATED 02.08.2019.