IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932 WA.No. 1378 of 2010() ------------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.12899/2008 .................... APPELLANT(S): RESPONDENT NOS. 5,6,7,8,9,10,11,12,13,14,15,16 & 17 IN THE WPC. ------------------------------------------------------------------------------------------------------------------------ 1. PRAVEEN G.S., CHARUVILA PADINJATTETHIL VEEDU, MYLOM P.O., KOTTARAKARA, KOLLAM DISTRICT. 2. P.B.GIRISH KUMAR, S/O. P.G.BALAKRISHNAN NAIR, EDAKKATTU HOUSE, AMAYANNOOR P.O., KOTTAYAM DISTRICT (WATER, PERINGALLOOR DEVASWOM VADAVATHOOR SUB GROUP OF KOTTAYAM GROUP OF TRAVANCORE DEVASWOM BOARD). 3. SURESH KUMAR.A.R, S/O.RAMACHANDRAN NAIR, AMBIKA BHAVAN, CHIRAKKADAVU CENTRE (PO), THEKKETHUMALA (VIA), KOTTAYAM DISTRICT, (WATCHER, CHERUVALLY DEVASWOM OF CHERUVALLY SUB GROUP OF KOTTAYAM GROUP OF TRAVANCORE DEVASWOM BOARD. 4. SHYLESHKUMAR.N, S/O.NATARAJAN, KARIPINAMKUZHINIRAVIL, KALLELI (PO), (WATCHER, KODUMTHARA DEVASWOM, PATHANAMTHITTA SUB GROUP OF ARANMULA GROUP OF TRAVANCORE DEVASWOM BOARD). 5. RATHEESH BABU, S/O.P.K.VASUDEVAN NAIR, RATHEESH BHAVAN, THAZHAM P.O., MALAYALAPUZHA, PATHANAMTHITTA DISTRICT, (WATCHER MADAMOM DEVASWOM, PERINAD SUB GROUP OF ARANMULA GROUP OF TRAVANCORE DEVASWOM BOARD). 6. PRAVEENKUMAR.E.P., S/O.T.G.PRABHAKARAN NAIR, ELAPPUNKAL HOUSE, PALLICKACHIRA KAVALA (PO), PAYIPADU, CHANGANASSERRY, KOTTAYAM DISTRICT, (WATCHER VAZHAPPILLY DEVASWOM, VAZHAPPILLY SUB GROUP OF CHANGANASSERRY GROUP OF TRAVANCORE DEVASWOM BOARD). W.A. NO.1378/2010 7. RAJEEV.D., S/O.A.DIVAKARA PANICKER, PAYAMPALLIL HOUSE, NEELAMPEROOR (PO), ALAPPUZHA DISTRICT (WATCHER, KODUPPUNNAKKAVU DEVASWOM, KODUPPUNNA SUB GROUP OF CHANGANASSERY GROUP OF TRAVANCORE DEVASWOM BOARD). 8. BINUMON.M.R, S/O.M.N.RAMACHANDRAN PILLAI MALIAKKAL HOUSE, CHIRAKADAVU CENTRE (PO), THEKKETHUKAVALA, PONKUNNAM, KOTTAYAM DISTRICT, (WATCHER, VETTIKADU DEVASWOM, KODUNGOOR SUB GROUP OF KOTTAYAM GROUP OF TRAVANCORE DEVASWOM BOARD). 9. A.R.VINOD, S/O.RAMAN PILLAI, ANARIMANGALAM VEEDU, MALAKKUNNAM P.O., CHANGANASSERRY, KOTTAYAM DISTRICT, (WATCHER PAKKIL DEVASWOM, PAKKIL SUB GROUP OF KOTTAYAM GROUP OF TRAVANCORE DEVASWOM BOARD). 10. P.R.PUSHPARAJAN NAIR, S/O.RAGHAVAN NAIR, POOTHAPARAMBIL HOUSE, KORUTHODU P.O., KOTTAYAM DISTRICT (WATCHER, THRIKKAKARA DEVASWOM, THRIKKAKARA SUB GROUP OF PARAVOOR GROUP OF TRAVANCORE DEVASWOM BOARD). 11. JAYAKUMAR.G., S/O.GOPAKUMAR, "GOPIKA", THULAMPARAMBUNADUVATH, HARIPAD P.O., ALAPPUZHA DISTRICT (WATCHER, AMBALAPUZHA DEVASWOM, AMBALAPUZHA SUB GROUP OF AMBALAPUZHA GROUP OF TRAVANCORE DEVASWOM BOARD). 12. N.S.GIRISH KUMAR, S/O.SREEDHARAN NAIR, NELLIKOTTUMURUPPEL, PYANAMON P.O., KONNI, PATHANAMTHITTA DISTRICT (WATCHER, PANAMATTATHUKAVU DEVASWOM, THELIYOORKAVU SUB GROUP OF THIRUVALLA GROUP OF TRAVANCORE DEVASWOM BOARD). 13. RAJENDRAN.N.S, S/O.SANKARA PANICKER, NALONNIL VEEDU, PERUMBALAM P.O., CHERTHALA, ALAPPUZHA DISTRICT, (WATCHER NARANAM DEVASWOM, NARANAM SUB GROUP OF PARUR GROUP OF TRAVANCORE DEVASWOM BOARD. BY SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE S.A. NO.1378/2010 RESPONDENT(S): PETITIONER & RESPONDENTS 1 TO 4 IN THE WPC -------------------------------------------------------------------------------------------------- 1. ARUN.V.S, S/O.G.SASEENDRA KURUP, "USHUS", KEEZHPEROOR, PEROOR P.O., KILIMANOOR, THIRUVANANTHAPURAM. 2. THE SECRETARY, TRAVANCORE DEVASWOM BOARD, OFFICE OF THE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM. 3. THE PRINCIPAL SECRETARY, DEVASWOM DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. THE INFORMATION OFFICER, TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM. 5. THE COMMISSIONER, KERALA STATE RIGHT TO INFORMATION COMMISSION, THIRUVANANTHAPURAM. R1 BY ADV. SRI.B.HARISH KUMAR R2, R 4 & R5 BY SRI.VENOGOPALA PANICKER, SC R3 BY GOVT. PLEADER SRI. BENNY GERVACIS THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03/09/2010, ALONG WITH WA NO. 1421 OF 2010 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss C.N.RAMACHANDRAN NAIR & K. SURENDRA MOHAN, JJ. ------------------------------------------------------------ W.A.NOS: 1378, 1509,1421, 1461, 1462 OF 2010 ----------------------------------------------------------- Dated this the 3rd September, 2010. JUDGMENT Ramachandran Nair, J. All the writ appeals arise from the very same judgment of the learned Single Judge in WP(C) 12899/2008 filed by the first respondent in all the writ appeals. The writ petition is filed by the petitioner challenging Ext.P5 order issued by the Travancore Devaswom Board cancelling the remaining list of candidates prepared for appointment to the post of Watchers in the temples. Pursuant to Ext.P1 notification the Devaswom Board conducted written examination from applicants for selection to the post of Watchers in temples. Based on the marks obtained in the written examination a list containing 351 persons were prepared which is produced as Ext.P2 dated 31/10/2005. However, in an enquiry on the allegations of irregularities committed in the Travancore Devaswom Board, the Justice Paripoornan Commission in their report dated 19/12/2007 observed that: “selection to the post of Watchers has been done at the ipse dixit of the Board and W.A.1378/2010 etc. 2 its members and there was no compliance with the directions in the notification. We find that the selection of Watchers is improper and illegal.” Even though report was given by the Commission only on 19/12/2007, the Board even prior to that apprehended such finding by the Commission and cancelled the list vide Ext.P5 dated 4/12/2007. However, from February 2006 onwards the Board has been making appointments from the very same list of selected candidates and when the list was cancelled as many as 70 persons were appointed and on completion of probation, they were confirmed in services. Probably because of this the Board while cancelling the list on 4/12/2007 did not terminate the services of those who were appointed from the list and who had completed probation in services. The petitioner who was candidate No:78 in the list challenged the cancellation of the list by the Devasom Board vide Ext.P5 by filing the writ petition. Writ petition itself was filed only in 2008 and petitioner made publication in the newspaper calling upon interested persons to implead in the writ petition. Accordingly some of the persons who have been appointed by the Devaswom Board got impleaded in the writ petition and opposed the the writ petition and the reliefs sought therein in 2010 to W.A.1378/2010 etc. 3 cancel the appointments made from the very same list. Even though main prayer in the writ petition was to retain the validity of the list so that the petitioner in the writ petition would get employment in the normal course during the currency of it, the learned Single Judge did not accept the same, but upheld the cancellation made by the Devaswom Board and beyond that the learned Single Judge directed the Board to terminate all appointments made from the list. It is pertinent to note that by the time the judgment is pronounced those people appointed in the Board already completed more than four years service and all of them have been made permanent much before the list was cancelled by the Board on 4/12/2007. The writ appeal is filed by the impleaded respondents and other aggrieved employees after obtaining leave from this Court. We have heard counsel appearing for all the appellants, the counsel appearing for the first respondent and standing counsel appearing for the Devaswom Board. 2. We have gone through the relevant portions of the Justice Paripoornan Commission report wherein the Commission has found that appointment made to the post of Watchers is irregular and illegal. Admittedly under the notification inviting application for W.A.1378/2010 etc. 4 appointment candidate's eligibility was pass in 8th standard and physical fitness. The selection was made by conducting written examination for all the candidates and rank list is prepared based on the marks obtained in the written examination. The Commission has not found any illegality or impropriety in the written examination conducted and the select list prepared. However, Commission found fault with the Devaswom Board only because no physical fitness test was conducted before preparing the final list of candidates based on their ranking. However, we notice from the report itself that the Devaswom Board has informed the Commission that for appointment from the rank list, the candidate has to produce certificate of physical fitness from a Civil Surgeon. Admittedly we find that the notification inviting application for appointment did not visualise any physical ability test to rank the candidates based on their physical efficiency. On the other hand what was required was only physical fitness which the Board felt was only a condition for eligibility to be established through production of medical certificate. We do not think the failure to conduct a physical test will affect the selection process because no physical efficiency test was contemplated in the notification and what was required was the candidate's eligibility, which is not W.A.1378/2010 etc. 5 physical efficiency but physical fitness. Therefore relative fitness of candidates is of no relevance in the selection process and what is required is physical fitness for selection. So much so, in our view the finding in the Commission Report should not be the sole basis for cancellation of the select list. Besides the apprehension of adverse findings by the Commission, the Board had no material when they cancelled the select list by their order dated 4/12/2007 which was issued even before the Commission submitted the report. 3. From the above findings we are of the view that the learned Single Judge was not justified in cancelling the appointments made from the list prepared after a written examination which was not found any way defective and faulty in Justice Paripoornan Commission's report. The learned Single Judge has only relied on the decision of the Supreme Court in the decision reported in Krishan Yadav v. State of Haryana (AIR 1994 SC 2166) to cancel the list. However, from the judgment we find that the selection in that case was found to be fraudulent in as much as candidates who had not even attended the interview were awarded marks for interview. However, in this case the irregularity noticed by the Commission is only with regard to the failure of the Board to W.A.1378/2010 etc. 6 carry out physical efficiency test which we felt was unnecessary. Counsel for the petitioners relied on the Division Bench judgment of this Court in WP(C) 22384/2006 wherein this Court held that any person proceeded against based on the findings of the Commission report is free to vindicate his grievances before appropriate forum. We have already noticed that the Commission gave adverse report because physical efficiency test was not conducted. However we have already found that what was required was only physical fitness and the Board completed selection of the candidates who came in the rank list on their producing physical fitness certificate from the doctor. In our view the production of medical fitness certificate satisfies the requirements of physical fitness and so much so we do not find any ground to interfere with the appointments made by the Board. In fact but for the cancellation of the list based on the report of Commission the respondent who is the petitioner in the writ petition also would have got appointment by now. His grievance is that he is denied appointment after selection while 70 from the same list got postings. Since no one else in the list has challenged the Board's order cancelling it, we feel first respondent can be granted relief. 4. We therefore allow all the writ appeals by vacating the W.A.1378/2010 etc. 7 judgment of the learned Single Judge and directing the Board to appoint first respondent as Watchman in one of the post available in the Board. C.N.RAMACHANDRAN NAIR Judge K. SURENDRA MOHAN Judge jj W.A.1378/2010 etc. 8