IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 DBA.No. 16 of 2011() -------------------- (IN THE MATTER OF COCHIN DEVASWOM BOARD - SEEKING PERMISSION TO FILL UP THE POSTS OF LOWER DIVISION CLERKS FROM THE LAST GRADE EMPLOYEES/TEMPLE EMPLOYEES). APPLICANT ------------------ COCHIN DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY. BY ADVS. SRI.N.RAGHURAJ,SC,COCHIN DEVASWOM BOARD SRI.K.GOPALAKRISHNA KURUP, SENIOR ADVOCATE RESPONDENT -------------------- THE DEPUTY DIRECTOR, LOCAL FUND ACCOUNT (COCHIN DEVASWOM) AUDIT, THRISSUR. ADDL. RESPONDENTS -------------------------------- ADDL. R2. KERALA PUBLIC SERVICE COMMISSION, REP. BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. ADDL. R3. THE STATE OF KERALA REP. BY ITS SECRETARY, DEPARTMENT OF DEVASWM, THIRUVANANTHAPURAM. ADDITIONAL RESPNDENTS 2 AND 3 ARE SUO MOTU IMPLEDED AS PER THE ORDER DATED 02.01.2011 IN DBA 16/2011. ADDL.R4 SMT.M.V.DEVI, MALAKAZHAKAM, SHIVA TEMPLE SRINGAPURAM DEVASWOM, SRINGAPURAM, THRISSUR DISTRICT ADDL.R5. SRI.C.K.SHAJI, VESSEL CLEANER, SHIVA TEMPLE SRINGAPURAM DEVASWOM, SRINGAPURAM, THRISSUR DISTRICT. ADDL.R6. SMT.K.V.UMADEVI, KAZHAKAM, SREEKRISHNA SWAMI TEMPLE, AYYAMPILLY DEVASWOM, PALLIPURAM. ADDL. RESPONDENTS 4 TO 6 ARE IMPLEADED AS PER THE ORDER DT. 02.01.2011 IN IA. 307/2011 IN DBA.16/2008. DBA.No. 16 of 2011() ------------------------------- ADDL. RESPONDENTS 7 TO 13 -------------------------------------------- ADDL.R7. SRI.PRASANTH R. NAIR, SON OF RAMAN P.V., SANTHA NIBVAS, KOVILAKAM LANE, PERINGAVU, TRISHUR. ADDL.R8. SRI.V.SANTHOSH, SON OF KRISHNANKUTTY, VELLOOR HOUSE, WEST VELLANIKKARA, P.O. MADAKKATHARA, TRICHUR. ADDL.R9. SRI.V.V.SANTHOSH KUMAR, SON OF N.N.VELU, NADUVIL PURAKKAL HOUSE, P.O. VIYYUR, PUTHUKKAD, TRICHUR ADDL..R10. SRI.SANKARAKRISHNAN K., SON OF LATE SEKHARAN NAIR, GIRIJA MANDIRAM, KUNISSERY P.O., PALAKKAD. ADDL.R11. SRI. C.S.HARIDAS, SON OF LATE C.R.SUBRAMANYA IYER, CHULLI MADAM, ARATTUPUZHA, TRICHUR. ADDL.R12. SRI.K.G.SAMBASIVAN, SON OF K.V. GOPALAN KADALIL, KORTTUKKAL HOUSE, P.O. VADOOKKARA, TRICHUR. ADDL. R13. SRI.A.SURESH, SON OF V.VALLABHAN, ADAMKAVIL HOUSE, GANDHI NAGAR, CHEROOR P.O., TRICHUR. ADDL. RESPONDENTS 7 TO 13 ARE IMPLEADED AS PER ORDER DT. 23.2.2011 IN I.A. NO.455/11 IN DBA.16/2008. R2 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC R4-6 BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM R7-13 BY ADVS. SRI.M.RAMESH CHANDER SMT.K.A.SANJEETHA THIS DEVASWOM BOARD APPLICATION HAVING BEEN FINALLY HEARD ON 28/09/2011, ALONG WITH WPC NO. 5559 OF 2011 WPC NO. 1089 OF 2011, RP NO. 218 OF 2011 DBA NO. 17 OF 2011 DBP NO. 58 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DBA.No. 16 of 2011() ------------------------------- APPENDIX ---------------- PETITIONER'S ANNEXURES ---------------------------------------- ANNEXURE-1. COPY OF THE NOTIFICATION BEARING NO.5672/F1/88/RD DATED 01.02.1988 ANNEXURE-II. COPY OF THE ORDER NO.M13122/91 DATED 04.01.92. ANNEXURE-III. COPY OF THE ORDER NO.103/2001. ANNEXURE IV. COPY OF THE ORDER DATED 9.4.2008 IN DBA NO.22/2008 ANNEXURE V. COPY OF THE JUDGMENT DATED 12.02.2009 IN WPC .21209/2008 ANNEXURE VI. COPY OF THE ORDER NO.736/06 DATED 24.03.2009 ANNEXURE VII. COPY OF THE PROCEEDINGS OF THE BOARD ANNEXURE VIII. COPY OF THE ORDER NO.1653/08 DATED 01.07.2008. ANNEXURE IX. COPY OF THE COMMUNICATION TO LBS CENTER ANNEXURE X. COPY OF THE RANKED LIST. ANNEXURE IX. COPY OF THE LIST OF PERSONS PROPOSED TO BE REGULARIZE IN TEMPLE SERVICE ANNEXURE X. COPY OF THE CIRCULAR DATED 15.10.2010. RESPONDENT'S EXHIBITS : NIL ------------------------------------- / TRUE COPY / P.A. TO JUDGE VK THOTTATHIL B. RADHAKRISHNAN & C.T. RAVIKUMAR, JJ. -------------------------------------------- W.P.(C).Nos.1089 & 5559/11, D.B.A. No. 16/11 & R.P.No.218/11 -------------------------------------------- Dated this the 28th day of September, 2011 JUDGMENT Thottathil B. Radhakrishnan, J. The Cochin Devaswom Board is governed by the provisions of the Travancore Cochin Hindu Religious Institutions Act, 1950. By Act 5 of 2007, section 127A was inserted into that Act. That provision reads as follows:- “127A. Appointment to be made through Kerala Public Service Commission--Notwithstanding anything contained in this Act or in the rules or in the byelaws made thereunder relating to the recruitment and conditions of service of officers and employees of the Board, all appointments of officers and employees in the Administrative Service of the Board, for which direct recruitment is resorted to, shall be made from a select list of candidates belonging to Hindu religion furnished by the Kerala Public Service Commission in accordance with the law made for the exercise of this additional function by the Kerala Public Service Commission. A Hindu member/members of the Public Service Commission may discharge the function of conducting interview in the process of selection of candidates for appointments”. 2. Following that, the Kerala Public Service Commission (Additional Functions as respects the administrative service under Devaswam Board) Act, 2008 was enacted providing among things that W.P.(C) 1089/11 & conn. 2 Devaswam Board shall consult the Public Service Commission as respects matters relating to direct recruitment to the posts under the administrative service of the Board. The rules framed under the said Additional Functions Act came into force with effect from 12.1.2009. The Consultation Rules having thus come, the Board has necessarily to proceed only in accordance with section 127A of the T.C.H.R.I Act. The aforesaid Additional Functions Act and the Consultation Rules will apply to matters in relation to direct recruitment in connection with administrative service under the Board. In terms of the Consultation Regulations of the P.S.C., consultation is excluded for certain matters. This means that consultation has to be there in all other matters. 3. In this bunch of matters, we are concerned with the Board's requirement to appoint L.D Clerks. 4. It appears that some selection process was conducted by the Board on the premise that it had authority to make appointments by conducting selection on its own or through external agency of its choice. The controversy between the employees who are parties in these matters and the Board is as to which among the two lists stated to have been prepared, has to be accepted for making appointments. 5. But the larger question that arises for consideration by the W.P.(C) 1089/11 & conn. 3 court is the coverage of the administrative service under the Board by the process and compulsory consultation with the Public Service Commission in the light of the aforesaid statutory provisions. The Recruitment Rules for appointments in the regular service of the Board was published in the gazette on 23.2.1988. Rule 22(a) of those Rules provides that a person shall be recruited direct only against the vacancy of LDC/LDA/DA/LD Typist, Supervisors in maramath wing and last grade cader. Clause (b) to Rule 22 provides that recruitment to all other vacancies shall be made by promotion and transfer according to the additional qualifications required for each category of vacancies. Rule 26 provides that all direct recruitments shall be by open competition subject to rotation given in that rule which prescribes a quota rule and the rota rule. It further provides that 25% of the recruitments shall be reserved for employees working in Pathivu and Contingent service. The Board has also come out with later decisions whereby 25% of the recruitment as L.D.Clerks is reserved for being made up promotion from last grade employees prescribing certain qualifications for being considered for such appointment. 6. On the face of Rule 26 of the Recruitment Rules which are statutory, the only method of appointment to the category of L.D.Clerks is direct recruitment. There cannot be any promotion. The only provision is, W.P.(C) 1089/11 & conn. 4 to have a reservation while making the recruitment, in the sense that, 25% of the recruitments shall be reserved in favour of the employees working in Pathivu and Contingent service. Even if the further reservation stated to have been made by the Board in favour of the contingent employees, is a reservation to be recognised in terms of the Recruitment Rules, that cannot be considered for promotion but only for direct recruitment with the support of the reservation as noted. 7. The aforesaid discussion clearly shows that the appointment to L.D.Clerks, as per law that stood even before the insertion of section 127A in the T.C.H.R.I Act, there was direct recruitment as noted above. By the operation of section 127A and the effect of section 3(2) of the Additional Functions Act and the provisions of the Consultation Rules, the management of the process of recruitment to those posts in the category of L.D.Clerks including all vacancies which existed as on the date of coverage under the additional functions of the P.S.C can be had only in consultation with the P.S.C. Therefore, going by the clear terms of the aforenoted provisions, further appointments in different vacancies of L.D.Clerks in the Board can be had only in consultation with the P.S.C. This may be in relation to matters to preserve the reservations and then give the open market recruitment to be carried out by the P.S.C and on W.P.(C) 1089/11 & conn. 5 consultation, in terms of Recruitment Rules, to have any other mode of selection for the vacancies for which reservation may be available to the in-service candidates. 8. By now, following earlier orders, the Secretary of the Board states by affidavit dated 3.9.11, that as on 12.1.2009, the cadre strength of L.D.Clerks is 81; out of that, 63 posts remain vacant. It is also stated that out of 18 L.D.Clerks in service, 9 persons were direct recruits and 4 persons came into service under compassionate appointment scheme and 2 persons were promoted from Last Grade service and 3 persons were promoted from cadre of Temple employees. We record these facts. 9. With this, we also see that the Board appears to say that it has carried out a selection process. The result of that has to be now held back for some time, without making any appointment on that basis, so that the process of consultation can be carried out and if concurred to the P.S.C, the select list already prepared can be operated with the concurrence of the P.S.C. We make this observation in the light of the fact that much time has been taken in the process of carrying out the selections and the employees are awaiting their possible movement to higher category in service. If such procedure is adopted, it could also exclude additional expenses of conducting selection to the so-called 25% or 50% of the reserved W.P.(C) 1089/11 & conn. 6 categories. We also clarify that any expiry of the lists prepared by the Board, with passage of time, will not be of much significance since that is also matter that can be looked into, in the process to consultation. This is because, by the effect of section 127A of the T.C.H.R.I. Act, the statutory rules framed earlier, as also executive orders which were in force, would stand regulated and, if, not fully, to a great extent, defused by the overriding effect of section 127A. Having regard to the backlog of vacancies in the L.D.Clerks cadre and the need to make appointments immediately, even going by the reports of the learned Ombudsman for Travancore and Cochin Devaswam Boards, we direct the Board and the P.S.C to commence and carry out the consultation process at the earliest and vigorously so that the appointments can be made without delay. These matters are ordered, accordingly. Sd/- THOTTATHIL B. RADHAKRISHNAN (Judge) Sd/- C.T. RAVIKUMAR (Judge) spc/28.09.11 W.P.(C) 1089/11 & conn. 7 C.T. RAVIKUMAR, J. JUDGMENT September, 2010 W.P.(C) 1089/11 & conn. 8