IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 28TH MAY 2009 / 7TH JYAISHTA 1931 WP(C).No. 12965 of 2007(R) -------------------------- PETITIONERS: --------------- 1. BIJULAL KUMAR G., S/O. GOPALAKRISHNAN NAIR, COMPANY PUTHEN VEEDU, KARAVALLOOR P.O., KOLLAM DISTRICT-691 318. 2. R.HARIDAS, IKARAPULLATTU, KANJIRAPPARA P.O., KANGAZHA, KOTTAYAM DISTRICT. 3. S.VIJAYA KUMAR, FLAT NO.3/34, RAJEEV NAGAR, MELARANOOR, KARAMANA P.O., THIRUVANANTHAPURAM. 4. SUNIL T.V., THANNIKKAL HOUSE, ARTHINKAL P.O., CHERTHALA, ALAPPUZHA DISTRICT. 5. SREEKUMAR C.K., PULIYARATHALA PANAYIL VEEDU, IRUMBA, ARUVIKARA, THIRUVANANTHAPURAM. BY ADV. SRI.ANCHAL C.VIJAYAN RESPONDENTS: --------------- 1. THE TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, NANDANCODE, THIRUVANANTHAPURAM. WP(C) 12965/2007 :2: 2. THE DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, NANDANCODE, THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER (GENERAL), TRAVANCORE DEVASWOM BOARD, NANDANCODE, THIRUVANANTHAPURAM. ADV. SRI.M.K.CHANDRA MOHANDAS FOR R1TO3 SRI.NAGARAJ NARAYANAN, SC, TDB FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30.3.2009, THE COURT ON 28/05/2009, DELIVERED THE FOLLOWING: WP(C) 12965/2007 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE NOTIFICATION PUBLISHED BY THE 1ST RESPONDENT IN THE MATHRUBHOOMI DAILY DATED 23.6.2005. EXT.P2 TRUE COPY OF THE RESOLUTION PASSED BY THE TRAVANCORE DEVASWOM BOARD DATED 12.9.2005. EXT.P3 TRUE COPY OF THE MIUTES OF THE MEETING OF THE SELECTION COMMITTEE HELD ON 22.11.2005. EXT.P4 TRUE COPY OF THE RESOLUTION DATED 23.1.2007 PASSED BY THE TRAVANCORE DEVASWOM BOARD. EXT.P5 TRUE COPY OF THE RANK LIST OF CANDIDATES PUBLISHED FOR APPOINTMENT TO THE POST OF DRIVER GRADE II IN THE SERVICE OF THE TRAVANCORE DEVASWOM BOARD. EXT.P6 TRUE COPY OF THE R.O.C. 1365/05/Est.1 DATED 25.1.2007 ISSUED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT. EXT.P7 TRUE COPY OF ROC 3136/08/EST. 2 DATED 3.5.2008 ISSUED BY THE 1ST RESPONDENT. EXT.P8 TRUE COPY OF THE PROCEEDINGS ROC NO. 1639/08/EST.ii DATED 22.1.2009 ISSUED BY THE 1ST RESPONDENT. EXT.P9 TRUE COPY OF THE ORDER NO. 1780/23/1/2009 ISSUED BY THE ADMINISTRATIVE OFFICER, BUS OPERATIONS, TRAVANCORE DEVASWOM BOARD. RESPONDENTS' EXHIBITS: EXT.R1(a) TRUE COPY OF THE PROCEEDINGS DATED 24.11.2008. // TRUE COPY // KNC/- P.S. TO JUDGE. P.R. RAMAN & P.S. GOPINATHAN, JJ. = = = = = = = = = = = = = = = = = = = = W.P.(C) NO. 12965 OF 2007 = = = = = = = = = = = = = = = = = = = = = DATED THIS, THE ....TH DAY OF MAY, 2009. J U D G M E N T Raman, J. Petitioners, five in number, were among the applicants for the post of Light Motor Vehicle Driver Grade -II in the service of the Travancore Devaswom Board. Though they were duly selected, they were not issued with any order of appointment. Hence they filed this writ petition for issuance of a writ of mandamus or other appropriate writ of direction commanding the third respondent Chief Engineer to issue orders of appointment to them in the available vacancies of Light Motor Vehicle Driver Grade - II, as per Exts.P5 and P6 and for a declaration that they are entitled to be appointed to the said posts. WP(C) 12965 OF 2007 :2: 2. The Travancore Devaswom Board is the first respondent herein. Second respondent is the Devaswom Commissioner and the third respondent is the Chief Engineer who is the Head of the Department and authorized to issue orders of appointment. The Travancore Devaswom Board is a body created by the Statute as per the provisions of the Travancore Cochin Hindu Religious Institutions Act, 1950 (hereinafter referred to as 'TCHRI Act'). It invited applications for the post of Light Motor Vehicle Driver Grade -II by issuing notification published in Mathrubhoomi Daily dated 23.6.2005, copy of which is produced as Ext.P1. The notification is for the existing vacancies and also for the future vacancies that may arise within a period of one year after the publication of the select list. According to the petitioners, six posts of Light Motor Vehicle Driver - Grade II were lying vacant in the service of the Travancore Devaswom Board as on 1.6..2005. This is not seriously disputed. Pursuant to the notification Ext.P1, WP(C) 12965 OF 2007 :3: the Travancore Devaswom Board constituted a selection committee consisting of the Chief Engineer as the Chairman, the Executive Engineer and also a retired Regional Transport Officer as members vide Resolution dated 12.9.2005, produced as Ext.P2 in this case. Ext.P3 is the minutes of the meeting held by the selection committee as per which it was decided to prepare a list of candidates securing 50 marks and above to be submitted before the Board for further action in the matter. Subsequently a practical test was conducted and submitted a list of 91 candidates who acquired 50 marks and above, to the Travancore Devaswom Board. As per Ext.P4 resolution dated 23.1.2007, the Board considered the report of the Chief Engineer dated 23.1.2006, the proceedings of the selection committee and the rank list containing 91 candidates. The Board resolved to accept the marks awarded by the Selection Committee and the rank list and to authorise the Secretary to forward the list of 17 persons WP(C) 12965 OF 2007 :4: those who obtained sixty marks and above in the practical test to the Chief Engineer (General) for appointment in the existing and arising vacancies on the basis of communal rotation as per the Notification of the Board ROC No. 5151/96/Est. 1 dated 1.3.2006. The Secretary was also directed to notify the rank list of 17 candidates in the Notice Board of the Board Office. It was also resolved that the rank list will be valid for a period of three years from 23.1.2007. The rank list of candidates for appointment to the post of Driver Grade - II annexed to the resolution contains names of 17 persons including the names of the petitioners. This rank list is produced as Ext.P5 in this writ petition. By Ext.P6 letter of the Secretary, Travancore Devaswom Board, he forwarded a rank list of the candidates to the Chief Engineer (General) and requested the latter to appoint the persons mentioned in the rank list in the existing and arising vacancies as directed by the Board. All that remains was to issue orders of appointment WP(C) 12965 OF 2007 :5: by the Chief Engineer. Though the petitioners were ranked as 1,3, 4, 6 and 10 respectively in the rank list published and in spite of the fact that vacancies were available, appointment orders, however, were not issued which, as stated earlier, necessitated the filing of this writ petition for appropriate orders and for reliefs as sought for. 3. Incidentally, it may be noticed that Ext.P1 notification issued by the Travancore Devaswom Board, inviting application for the post of Light Vehicle Driver Grade - II contains the procedure for selection. The process of selection, as notified, includes a written test, practical test and interview or any one of these. By Ext.P2 resolution of the Board dated 12.9.2005, the Board resolved that pursuant to the notification issued, 2767 applications were received of which 2371 were seen valid and in view of the large number of applications received and for the sake of conducting selection process and the appointment with maximum eligibility, suitability and transparency, the Board WP(C) 12965 OF 2007 :6: resolved to conduct practical test for short-listing the applicants for interview. It was in these circumstances, that a selection committee was constituted who conducted the practical test and submitted a rank list containing 91 candidates before the Board. Even though the Board is entitled to adopt any one method for the purpose of selection as notified, the Board having decided to complete the process of selection both by conducting a written test as well as an interview, normally, in the absence of any reason, one would have expected the Board to proceed to conduct an interview. But in this case, the short list containing the names of 91 candidates was approved and 17 of them were directed to be appointed. So however, no interview as such was conducted. 4. In the counter affidavit filed by the Secretary of the Travancore Devaswom Board, it is stated as follows: After issuance of Ext.P6 requesting the Chief Engineer to issue necessary appointment orders, appointments have not WP(C) 12965 OF 2007 :7: been made in view of certain intervening circumstances. Immediately after Ext.P6 dated 25.1.2007, the then existing Board ceased to hold Office on 5.2.2007 as they have completed the stipulated term of two years specified under Section 10 of the Travancore Cochin Hindu Religious Institutions (Amendment) Ordinance Act, 2007 and hence the appointments were not effected and they were deferred for the decision of the new Board. Subsequently, in another writ petition, this Court constituted a three member High Power Commission to enquire into the allegations in respect of certain appointments and the High Power Commission after due enquiry submitted its report on 19.12.2007. The observation contained in page 257 of the said report is extracted as follows: "5. Appointments. There is every reason to believe there has been wide spread corruption and favoritism and adhocism in the appointments to various posts. This reflects a sorry state of affairs. The High Power Recruitment Board headed by a retired Judge of the WP(C) 12965 OF 2007 :8: High Court or an Administrator of high efficiency and integrity may be appointed to select the right people for various posts." The present Board has therefore, decided to cancel all the select lists prepared earlier to various posts by proceeding dated 4.12.2007 and to resort to fresh recruitment. Accordingly, in the case of the select list of Light Motor Vehicle Drivers Grade II also, the Board's decision is not to make appointments from the select list and to resort to fresh recruitment. By virtue of the amendment made to the Travancore Cochin Hindu Religious Institutions Amendment Act, 2007, Section 29A as introduced provides that notwithstanding anything contained in the Act and in the rules or in the bye-laws thereunder relating to recruitment and conditions of services of officers and employees of the Board, all appointments of officers and employees in the Devaswom Administrative Service of the Board for which direct recruitment is resorted to shall be made from a select WP(C) 12965 OF 2007 :9: list of candidates belonging to Hindu religion furnished by the Public Service Commission. In view of the above said new provision introduced, all appointments after the coming into force of the said amendment have to be done through the Kerala Public Service Commission. The said amendment came into force on 12.4.2007 and hence no fresh appointments could be resorted to except by selection conducted by the Kerala Public Service Commission. Persons who were included in the select list has no right as such to claim appointment. ( Reference is made to the decision of the Apex Court in State of U.P. v. Rajkumar Sharma (2006 (3) SCC 300) as also the decisions in Haryana v. Subash Chander (1974 (3) SCC 220), Mai Subrat Jain v. Haryana (1977 (1) SCC 486), PSEB v. Malkiat Singh (2005(9) SCC 22), Union of India v. Vinodh Kumar (2007 (8) SCC 100)). In view of the fact that the Board has decided to cancel the list to various posts prepared and published earlier including the select list WP(C) 12965 OF 2007 :10: for the post of Light Motor Vehicle Driver Grade II, the select list published earlier stands cancelled and the Board is resorting to fresh recruitment. There are 28 sanctioned permanent posts of LMV Driver Grade II under the Board. Of these, 20 posts have regular and permanent posts and 8 posts are lying vacant. In those vacant posts, employees like watchers, kazhakam etc. who are qualified to be Light Motor vehicle Driver Grade II are deputed to work as drivers on duty basis and so far no person is appointed from the open market on temporary basis to the sanctioned posts. The writ petition is liable to be dismissed. 5. In the reply affidavit filed by the petitioners, it is stated that the reasons stated for cancellation of the select list for Light Motor Vehicle Drivers Grade - II is wrong and the decision to cancel the rank list is arbitrary. According to the petitioners, the allegations made in WP(C) 22384/2006 were with regard to the appointment made to the post of Assistant Engineer, Overseer, Smith, Storekeepers, Typist WP(C) 12965 OF 2007 :11: etc. and no allegation of any sort was made against the Post of Light Motor Vehicle Driver - Grade- II and hence these posts stood outside the enquiry conducted by the High Power Commission. Though the High Power Commission conducted enquiry regarding the appointment to various posts, adverse remarks were observed only in respect of the select list of Santhies, Panchavadyam Artists, Watcher and Kazhakam. Each of the allegations against the particular post and the observation of the Commission has also been highlighted. According to them, Ext.P5 select list of Light Motor Vehicle Driver Grade-II is not a subject matter of the enquiry conducted by the High Power Commission. Therefore, any reference or observation made in the report of the high Power Commission can not be related to the post in question and hence no reliance on such observation could be made nor is there any justification for cancelling the select list made to the post of Light Motor Vehicle Driver Grade - II. It is also contended WP(C) 12965 OF 2007 :12: that though a candidate in the select list has no indefeasible right to be appointed, the duly selected candidates could not be denied appointment on the pretext that the term of the panel had expired and the post had been filled by some one else is not a ground to deny appointment to selected candidate. Reliance is also placed on the decision of the Apex Court in Purushotham vs. Chairman, KSEB & another (1999)6 SCC 49). It is also contended that the decision not to fill up the vacancies has to be taken bona fide and must pass the test of reasonableness so as not to fail on the touch stone of Article 14 of the Constitution of India. Reliance is made to the decision of the Apex Court in Food Corporation of India & Others v. Bhanu Lodh & Others ((2005) 3 SCC 618). According to them, the cancellation of Ext.P5 rank list and the selection process without assigning any valid reason is, therefore, arbitrary and liable to be set aside. According to the petitioners, despite the interim direction passed by this WP(C) 12965 OF 2007 :13: Court, not to fill the post on any temporary basis, respondents are resorting to fill up the posts by appointing low paid Temple employees without resorting to the process of direct recruitment. According to them, the post of driver is one which can be filled up by direct recruitment as per the rules framed by the Travancore Devaswom Board under sub section (2) of Section 29 and Clause (2) of sub section (2) of Section 35 of the TCHRI Act. Subsequently, petitioners have produced Exts.P8 and P9 by filing I.A. 1299/2009. Ext.P8 is a true copy of the proceeding of the Travancore Devaswom Board dated 22.1.2009 and Ext.P9 is the true copy of the order issued by the Administrative Officer, Bus Operations, Trivandrum, dated 23.1.2009. In the supporting affidavit, it is averred that without adhering to the order passed by this Court, the respondents have promoted bus cleaners as drivers and five bus cleaners so promoted were appointed to the available vacancies of drivers in the service of the Devaswom Board by Ext. P8 WP(C) 12965 OF 2007 :14: order, considering the representation submitted by them for category change/ promotion to the post of LMV. Drivers. From Ext.P8 it can be seen that the above said promotions are purely provisional and subject to the disposal of the present case. Ext.P9 is an office order effecting transfer and promotion. Though the petitioners sought to issue an interim stay of disbursement of salary to the drivers so appointed, no orders were passed by this Court granting any such relief. 6. In the additional counter affidavit filed for and on behalf of the Travancore Devaswom Board, it is contended that as per rule 9 of the Rules relating to appointment under the Board as amended in 1987, the validity of the rank list is only for a period of one year from its publication and there is no provision for extension of the period of validity of the rank list and therefore, the extended period of validity provided in the rank list for a period of three years have no legs to stand. According to WP(C) 12965 OF 2007 :15: them, the list has expired on 23.1.2008. They developed a contention based on Section 29A of the TCHRI (Amendment) Act, 2007, that with effect from 1.7.2008, the date on which the said amendment has come into force along with the passing of the Kerala Public Service Commission (Additional Functions as respects Administrative Services under Devaswom Boards Act) 2008 (Act 19/2008) and by virtue of Section 1(2) of the P.S.C. Additional Functions Act, the Government has appointed the date viz,, 1.7.2008 as the date on which the said Act shall come into force. Thus the legislative intention is amply made clear that with effect from 12.4.2007 the date on which the amendment to Section 29 came into force, the appointment has to be made by selection through the Public Service Commission. Being a policy decision to be taken by the Board as to whether the existing vacancies could be filled from the earlier select list or through a new method of selection and the Board having decided to make WP(C) 12965 OF 2007 :16: appointments to all the existing vacancies in various posts through the process of Public Service Commission there is no illegality or arbitrariness in the decision so taken. The respondents produced Ext.R1(a) along with I.A. 3844/2009 which is a proceeding of the Board dated 24.11.2008. As per Ext.R1(a) the Board, in its meeting held on 24.11.2008, has taken a decision that all the existing vacancies in the various administrative posts in the service of the Board be made through selection by the Kerala Public Service Commission. 7. On the basis of the pleadings in the case, we find that the following facts are beyond dispute. Applications were invited for appointment to the post of LMV Driver - Grade - II by Ext.P1 dated 23.6.2005 to the existing vacancies as also to the vacancies that may arise within a year from the date of publication of the rank list. Pursuant to Ext.P1, selection process was done, a rank list was prepared and accepted by the Board and even directed the Head of the Department to issue orders of appointment to 17 candidates including the petitioners. The process of selection was thus completed; but appointment orders were not actually issued. The WP(C) 12965 OF 2007 :17: change in law brought out by introducing Section 29A as per the amendment made to the TCHRI Act was much later. 8. Now the question that arises for consideration is as to whether the decision of the Board not to proceed with any appointment to the post of LMV Driver - Grade II based on the previous selection until a fresh recruitment is done through the public Service Commission as per the amended provision for the reasons stated in the earlier affidavit can be said to be arbitrary and illegal and what is the effect of the amendment brought out by introducing Section 29A to the TCHRI Act with effect from 12.4.2007. Though there is no express or implied retrospective effect to the above provision, what will be the legal effect on the existing select list ? Whether the amendment brought out with effect from 12.4.2007 will have any effect on the selection already made. 9. According to the learned counsel appearing for the petitioner, the selection process and the ranked list published to fill up the vacancies of LMV Drivers Grade II were not at all the subject matter of enquiry before the High Power Commission. This Court has constituted the High Power Commission for conducting an enquiry in respect of the allegations made by the WP(C) 12965 OF 2007 :18: petitioners in the writ petition, W.P.(C) No.2384 of 2006 against the President, Members of the Board and the Devaswom Commissioner. The specific allegation in the writ petition was against the appointment to the post of Assistant Engineers (Civil and Electrical), Overseers, Store Keepers etc. No allegation, what so ever, was raised against the filling up of the vacancies of LMV Drivers Grade II. So, the reason to cancel Ext.P5 ranked list based on the general observation of the High Power Commission is not valid in law. 10. On the other hand, the Board would contend that it decided to cancel all the select list prepared earlier to various posts by its proceedings dated 4.12.2007 and resorted to fresh list. Accordingly, in the case of LMV Drivers Grade II also, the Board's decision is not to make appointments from the select list already prepared and resorted to fresh list for appointment. Thus, it is their case that a policy decision was taken not to proceed with any appointment based on selection conducted by the previous list. According to them, merely because the petitioners are included in the select list, they have no WP(C) 12965 OF 2007 :19: indefeasible right to claim appointment. 11. The observation of the High Power Commission, as extracted in Para 4 of this judgment, no doubt is a general observation. It is a fact that no specific allegation was raised against the selection of LMV Drivers Grade II in the writ petition filed earlier, which culminated in the appointment of High Power Commission, nor is there any enquiry made specifically with reference to the selection to the post of LMV Drivers Grade II. The learned counsel appearing for the Board was specifically asked to point out as to whether there was any such material before the High Power Commission to draw an inference that the general observation applies to selection made to the post of LMV Drivers Grade II also. But the standing counsel for the Board was not able to place any material with regard to the same. We also asked whether the Board had made any independent enquiry or collected any material, at least after the High Power Commission report was received, before they took a decision to cancel the select list for the post of LMV Drivers Grade II, to which also the answer was negative. WP(C) 12965 OF 2007 :20: Therefore, we proceed on the assumption that the general observation made by the High Power Commission do not however apply to the selection made to the post of LMV Drivers Grade II, nor is there any other material before the Board to hold that there was any such allegation of corruption in the matter of selection to the post of LMV Drivers Grade II. Therefore, if the cancellation of the select list was solely based on the general observation of the High Power Commission, as pointed out in the counter affidavit, then possibly this Court would have held that in the absence of any such materials to warrant a conclusion that there was any widespread allegation of corruption to the post of LMV Drivers Grade II, the decision to cancel the selection may not be justified. At the same time, it is settled position that a candidate included in the merit list has no indefeasible right to appointment, even if the vacancy exists. 12. In Shankarsan Dash v. Union of India (1991(3) SCC 47) a Constitutional Bench of the Apex Court held that candidate included in merit list has no indefeasible right to appointment even if a vacancy exists. But State while filling up WP(C) 12965 OF 2007 :21: the vacancies has to act bona fide and not arbitrarily. The Apex Court also held that adoption