Kerala High Court
Sunil Kumar D.S vs Travancore Devaswom Board
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
WEDNESDAY, THE 15TH DAY OF FEBRUARY 2017/26TH MAGHA, 1938
WP(C).No. 29036 of 2016 (D)
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PETITIONER(S):
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SUNIL KUMAR D.S.,
SUNIL NIVAS, CHIPPANCHIRA, KARIMANCODE P.O.,
PACHA, PALODE, THIRUVANANTHAPURAM - 695 562.
BY ADVS.SRI.G.BIJU
SRI.S.JAYAPRAKASH (MADAVOOR)
RESPONDENT(S):
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1. TRAVANCORE DEVASWOM BOARD,
REPRESENTED BY ITS SECRETARY, NANTHENCODE,
THIRUVANANTHAPURAM - 695 001.
2. THE DEVASWOM COMMISSIONER,
TRAVANCORE DEVASWOM BOARD, NANTHENCODE,
THIRUVANANTHAPURAM - 695 001.
3. CHIEF ENGINEER [GENERAL],
TRAVANCORE DEVASWOM BOARD, NANTHENCODE,
THIRUVANANTHAPURAM - 695 001.
4. PRADEEP KUMAR S.,
WATCHER, MUKHATHALA DEVASWOM, TRAVANCORE DEVASWOM
BOARD, MUKHATHALA SUB GROUP,
MUKHATHALA, KOLLAM - 691 577.
5. P.S.SANTHOSH KUMAR,
WATCHER, SUMANGALI KALYANA MANDAPAM,
NANTHENCODE, THIRUVANANTHAPURAM 695 001.
6. A.GOPAKUMAR,
WATCHER, VETTIKULANGARA DEVASWOM,
TRAVANCORE DEVASWOM BOARD, HARIPAD GROUP,
CHEPPAD, HARIPAD, ALAPPUZHA DISTRICT - 690 507.
7. SUNIL KUMAR K.G.,
WATCHER, CHERUKOLE DEVASWOM, TRAVANCORE DEVASWOM
BOARD, AYIROOR PUTHIYAKAVU SUB GROUP,
ARANMULA GROUP, PATHANAMTHITTA - 689 650.
R1-R3 BY ADV. SRI.T.K.AJITH KUMAR, SC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 15-02-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
msv/
WP(C).No. 29036 of 2016 (D)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY
2ND RESPONDENT.
EXHIBIT P2 TRUE COPY OF RELEVANT PAGE OF THE SERVICE BOOK OF
PETITIONER.
EXHIBIT P3 TRUE COPY OF TRAVANCORE DEVASWOM BOARD LOW PAID
EMPLOYEE'S APPOINTMENT AS CLERK/SUB GROUP OFFICER
RULES, 1990
EXHIBIT P4 TRUE COPY OF RELEVANT PORTION OF THE SENIORITY LIST OF
LOW PAID EMPLOYEES FOR PROMOTION TO THE POST OF
LD CLERK/SUB GROUP OFFICER GRADE-II, IN TERMS OF
EXHIBIT P3 RULES.
EXHIBIT P5 TRUE COPY OF TRAVANCORE DEVASWOM BOARD RESERVATION OF
VACANCIES FOR TEMPLE EMPLOYEES TO THE POSTS OF
DEVASWOM GUARD AND IIIRD GRADE OVERSEER RULES, 2014.
EXHIBIT P6 TRUE COPY OF SENIORITY LIST OF LOW PAID EMPLOYEES FOR
PROMOTION TO THE POST OF IIIRD GRADE OVERSEER.
EXHIBIT P7 TRUE COPY OF ORDER OF FIRST RESPONDENT BOARD
DATED 9-8-2016 APPROVING EXHIBIT P6 .
RESPONDENT(S)' EXHIBITS
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NIL
//TRUE COPY//
P.S.TO JUDGE
Msv/
P.V.ASHA J.
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W.P.(C).No.29036 of 2016
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Dated this the 15th day of February, 2017
J U D G M E N T
The grievance of the petitioner in this case is against the non inclusion of his name in Ext.P6 list of Temple employees who are eligible for promotion to the post of III Gr. Overseer with reference to the date of his entry as part time Kazhakam. In the seniority list the coloumn for 'date of entry in service as full time' alone is shown and hence the date of entry of petitioner 'as part time employee' is not reckoned in the seniority list Ext.P6. As a result of this, the respondents 4 to 7 are included in the seniority list at Rank Nos.8, 9, 11 and 13. The petitioner is ranked at serial No.14 with the date of entry in service as 17.01.2006 whereas the respondents based on their subsequent entry in Full time posts are ranked above the petitioner who commenced serve as part time Kazhakam on 10.04.2003. He seeks for a direction to consider his case for promotion in accordance with Ext.P5 rules, after revising the seniority list.
2. The petitioner entered service under the first respondent Board as part time kazhakam, in Trikaryoor Temple on appointment as per Ext.P1 order dated 29.03.2003. He was thereafter promoted as full time Kazhakam on 17.01.2006. The Temple employees are W.P.(C).No.29036 of 2016 2 eligible for promotion as L.D.Clerks/Sub Group Officers, as per Travancore Devaswom Low paid Employee's Appointment as Clerk/Sub Group Officers Rules, 1990 (Ext.P3 Rules). They are also eligible for promotion as Overseers under Tranvancore Devaswom Board reservation of vacancies for Temple employees to the post of Devaswom Guard and III Gr. Overseer Rules, 2014 (Ext.P5 Rules) against 35% of the vacancies arising in each Calender year. As per Rule (iv) of Ext P5 Rules, 35% of the vacancies arising in each calender year in the cadre of III Gr. Overseer and Devaswom Guard under the Board shall be reserved to be filled up for appointment from among qualified Temple employees. The Temple employee is defined under Clause (b) of Rule (ii) as "Temple employees" for the purpose of these Rules means and include all full time employees other than karanma or hereditary employees. The procedure for appointment is provided under Rule (v) which reads as follows:
At the beginning of every calender year the Head of the Departments shall report to the Board the anticipated vacancies of III Grade Overseer and Devaswom Guard for the year and the Board shall inform the Head of the Departments the estimated number of vacancies available for appointment under these Rules. The Head of the Departments shall then prepare and forward separate lists of qualified candidates for appointment as III Grade Overseer and Devaswom Guard in each calender year to the Board for making appointment to the vacancies reserved under these Rules. Thereafter the Board shall approve separate consolidated lists of candidates to be appointed as III Grade Overseer and Devaswom Guard W.P.(C).No.29036 of 2016 3 according to strict seniority in service. The appointment to the vacancies reserved for each calender year shall be filled up from the lists prepared and approved as above. For each calender year fresh lists as stated above shall be prepared and approved.
3. In Ext P4 seniority list of low paid employees eligible for promotion as LD Clerks/Sub Group Officers, under Ext P3 Rules, petitioner is ranked 305 with his date of commencement of service in the Part Time post. At the same time the respondents 4, 5 and 7 are ranked 321, 317 and 415 respectively. In Ext P6 seniority list of low paid employees for promotion as Overseer Gr III under Ext P5 rules, as on 14.7.2016, issued by the Chief Engineer, petitioner is Rank No. was 13 and respondents 5 to 7 are ranked 8, 9 and 11 respectively. As per Ext.P7 proceedings dated 9.8.2016, the first respondent Board approved Ext P6 seniority list. In this proceedings it is stated that the seniority list was finalised,as per Ext.P6, after calling for objections. In Ext.P7 proceedings it is stated that out of 32 vacancies 11 vacancies are to be filled up under the 35% quota from among the Temple employees and approval was granted to the Chief Engineer accordingly for filling up the said 11 vacancies of overseer GR.III. The petitioner challenges this seniority list, pointing out that he has been included in another seniority list of low paid employees, prepared pursuant to Ext.P3 recruitment rules reckoning the date of entry in service in the part time post.
4. Low paid employees are defined in Rule 2 of Ext P3 W.P.(C).No.29036 of 2016 4 Rules which reads as follows:
(a) Establishment employee holding the posts borne on the permanent administrative establishments including Maramath Department under the Devaswom Board other than Temple Employees and carrying a scale of pay less than that of Lower Division Clerk/Sub Group officer Grade II or (b) All full time Temple employees other than Karanma or hereditary Temple Employees; or
(c) Any other employee holding a post declared by the Board from time to time as the post of low paid employee for the purpose of these Rules and the procedure prescribed is also more or less similar except for the designation of the post.
5. The definition of Temple Employees in Rule II(b) of Exhibit P5 Rules is as follows:
Temple Employees for the purpose of these Rules mean and include all full time Temple employees other than Karanma or hereditary Employees.
6. Therefore temple employees are low paid employees and do not include Karanma or heredetary employees. Definition of temple employee are more or less the same in both the rules.
7. In Ext.P4 seniority list published by the Devasowm Commissioner, for promotion to the post of L.D. Clerk/ Sub Group Officer Gr.II as on September, 2015 the petitioner was Rank 305. His date of entry was shown as 10.04.2003 that is the date on which he entered service as part time Kazhakam. In this seniority list the 5th coloumn is " date of entry in service". But the 5th column in Ext.P6 seniority list is for " date of entry in full time service". In Ext P4 seniority list, petitioner is ranked 305 with date of entry in service as 10.04.2003. The 4th respondent is rank No.321 with the date of W.P.(C).No.29036 of 2016 5 entry in service as 29.05.2003 and the 7th respondent is rank No.415 with date of entry in service as 09.07.2006.
8. The petitioner points out that the preparation and publication of Ext.P6 is without reckoning the date of entry in service with reference to his service as part time Kazhakam, which is illegal ans unjust. It is also pointed out that the respondents 4 to 7 are already promoted during the pendency of the writ petition.
9. Respondents 1 to 3 have filed a statement, relevant portion of which read as follows:
The petitioner entered in to the service of the 1st respondent as a part time Kazhakom as per Exhibit P1. Subsequently, the petitioner was appointed as full time Kazhakom by Order No.ROC 118/03/Mis C dated 28.12.2005 and he entered the full time service on 17.1.2006. As per Exhibit R5 Rules for promotion, only the full time temple employees are considered for the promotion. The Rule 2(b) of the Exhibit P3 Rules defines the temple employee as the full time temple employees. Since the petitioner was appointed as a full time temple employee only on 17.1.2006, his service was correctly calculated only from 17.1.2006. So there is no illegality in the preparation of the Exhibit P6. In Exhibit P5 also the temple employees are defined as those who are appointed as full time temple employees.
10. Even though notice was served on respondents 4 to 7, there is no appearance.
11. I heard the learned Counsel appearing for the petitioner and the learned Standing Counsel and considered the contentions. W.P.(C).No.29036 of 2016 6
12. The question to be examined is whether the service rendered as part time Kazhakam is liable to be reckoned for the purpose of seniority. There is no provision in either Ext.P3 rules or Ext.P5 rules which provides for determination of seniority. There is no provision which prohibits reckoning of service rendered as a part time employee or which provides that the service rendered as Full Time employee alone can be reckoned towards seniority. The contention of the respondents with reference to Rule 2 (b) of Ext.P3 relating to the Sub Group Officers/L.D Clerk and Rule (ii) (b) relating to the Overseer Gr.III appointment, cannot be accepted in so far as the said definition only provides for the eligibility of the Temple employees for promotion and not with reference to the seniority to be reckoned while preparing the seniority list of eligible candidates in the zone of consideration/qualified Temple employees. The effect of that rule is that only a full time employee is eligible for promotion, The procedure prescribed in Ext.P5 in Rule 5 only provides for preparation of separate list of qualified hands for appointment as III Gr. Overseer by the heads of department in each Calender year for making appointment to the vacancies to be reserved and for preparation and approval of separate consolidate list of candidates should be appointed according to strict seniority in service. The criteria for determining seniority is not provided any where in the recruitment rules. In the absence of any specific W.P.(C).No.29036 of 2016 7 provision which excludes the part time service or which insist full time service, it cannot be said that the petitioner's date of entry in service is only on his promotion as full time Kazhakam. Rule 2 only relates to the persons who are eligible for appointment under 35% quota and doesn't provide for or insist that only full time service has to be reckoned for the purpose of seniority. It can only relate to the eligibility prescribed in Rule 3 and the reservation provided in Rule 4. That means a qualified Full Time Temple employee is eligible for being considered for appointments under the 35% quota. Those provisions cannot be interpreted to mean that the procedure prescribed under Rule 5 which envisages a preparation of eligibility list of qualified hands should be on the basis of the date of commencement of full time service.
13. Under the above circumstances, the seniority list Ext.P6 to the extent to which it provides for the service rendered in full time employment/the date of entry in service as full time alone is un sustainable. In case the seniority list was published reckoning the commencement of the service of the petitioner as part time Kazhakam with effect from 10.04.2003, the respondents 4 to 7 would have been ranked below him.
14. Under the above circumstances, the seniority list Ext P6 as approved by Ext P7 to the extent it relates to the petitioner and the respondents 5 to 7 is erroneous and is liable to be recast W.P.(C).No.29036 of 2016 8 reckoning the date of entry of petitioner in part time service under the Board. As a consequence, promotions granted to the respondents 5 to 7 as Overseers on the basis of their rank in Ext P6 seniority list is also illegal and liable to be revised. Therefore, there shall be a direction to the respondents to revise and recast the seniority list as directed above and to revise the promotions made from Ext P6 seniority list in accordance with the seniority assigned in revised seniority seniority list prepared on the basis of the date of commencement of service under the Devasowm Board irrespective of the nature of the said service as part time or full time. This shall be done within a period of 'one month' from the date of receipt of a copy of the judgment.
The writ petition is accordingly allowed.
Sd/-
P.V.ASHA, JUDGE.
AS