IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 14TH MARCH 2008 / 24TH PHALGUNA 1929 OP.No. 10073 of 2002(Y) --------------------------------- PETITIONER: ------------------- A.K.UNNIKRISHNAN,RESIDING AT HOUSE NO.A-XV,GURUVAYOOR DEVASWOM STAFF QUARTERS, THAMARAYOOR,WORKING AS UPPER DIVISION CLERK, GURUVAYOOR DEVASWOM,GURUVAYOOR. BY ADV. SRI.SAJEEV KUMAR K.GOPAL SRI.BINOY VASUDEVAN RESPONDENTS: ----------------------- 1. GURUVAYOOR DEVASSWOM MANAGING COMMITTEE,REPRESENTED BY ITS ADMINISTRATOR, GURUVAYOOR. 2. THE ADMINISTRATOR,GURUVAYOOR DEVASWOM, GURUVAYOOR. 3. SMT.P.REMADEVI,ASSISTANT MANAGER, GURUVAYOOR DEVASWOM,GURUVAYOOR. 4. SMT.P.AMBIKA GOPINATH,ASSISTANT MANAGER, GURUVAYOOR DEVASWOM,GURUVAYOOR. BY ADV. SRI.U.K.RAMAKRISHNAN SMT.P.VIJAYAMMA SRI.V.KRISHNA MENON SMT.UMA GOPINATH THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 14/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.10073/2002 ORDER ON CMP. NO.17893/2002 IN OP.10073/2002 DISMISSED 14.03.2008 SD/- T.R.RAMACHANDRAN NAIR, JUDGE APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE REPRESENTATION DT. 29.12.01 SUBMITTED BY THE PETITIONER BEFORE 2ND RESPONDENT. EXT.P2:- COPY OF THE DECISION OF THE IST RESPONDENT AT ITS MEETING HELD ON 20.3.2002 AS NO.114. EXT.P3:- DO- DT. 24.3.02 AS NO.25. EXT.P4:- COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT VIDE B. 1/415/02 DT. 1.4.02. /TRUE COPY/ P.A. TO JUDGE tss T.R.RAMACHANDRAN NAIR, J. ========================= O.P.No.10073 of 2002-Y. ========================= Dated this the 24th day of March, 2008. J U D G M E N T The petitioner is working as Upper Division Clerk in Guruvayur Devaswom. The next higher cadre is Assistant Manager. He belongs to Vettuva community which is a scheduled caste. The reliefs sought for in this original petition is one seeking to quash Exts.P3 and P4 which are respectively resolution of the Managing Committee of the Guruvayur Devaswom and the proceedings of the Administrator of the Devaswom. Ext.P4 shows that pursuant to the retirement of two officers, one Sri.K.Sreenivasan was appointed as Deputy Administrator and subsequent to the arising of two vacancies of Assistant Manager, two Upper Division Clerks have been promoted as Assistant Managers. The contention raised by the petitioner apparently is O.P.No.10073 of 2002-Y. -: 2 :- that the principles of reservation should be applied in the matter of promotion to higher posts and alteast 10% of the grade of Asst. Manager has to be reserved for promotion from among Scheduled Castes and Scheduled Tribes. He filed Ext.P1 representation to consider the said request. Initially by Ext.P2 it was resolved to appoint him as Asst. Manager. The petitioner is relying upon Section 19(2) of the Guruvayur Devaswom Act, 1978 in support of his contention. Sec.19(2) provides that 10% of the posts in each grade of the officers and other employees of the Devaswom shall be reserved for Scheduled Castes and Scheduled Tribes. Relying upon the said clause it is contended by the petitioner that the same applies to promotion posts also. 2. The respondents have filed a detailed statement. It is contended that going by Sec.19(4) of the Act the procedure for selection and appointment of officers and other employees of the Devaswom shall be such as may be determined by the Committee by Regulations made in this behalf. Regulation 8 provides that O.P.No.10073 of 2002-Y. -: 3 :- 10% of the posts for which appointments by direct recruitment are made shall be reserved for Scheduled Castes and Scheduled Tribes. Under Regulation 16(b) all promotions are to be made in accordance with seniority subject to the persons being considered suitable for the post. It is therefore pointed out that there is no specific provision providing for reservation in matters of promotion. Reliance is also placed on the judgment of this Court in OP.No.7372/1989 which was rendered in respect of a similar claim in the Guruvayur Devaswom. Reliance was also made to the decision in Ajit Singh v. State of Punjab (AIR 1999 SC 3471) to contend that there is no fundamental right to claim reservation in promotion. 3. Section 19(2) postulates that 10% of the posts in each grade of the officers and other employees of the Devaswom shall be reserved for Scheduled Castes and Scheduled Tribes. Evidently it concerns direct recruitment and not promotion. Under the Regulations of 1983 it is specifically provided under Regulation O.P.No.10073 of 2002-Y. -: 4 :- No.8 that, “10% of the posts for which appointments by direct recruitment are made shall be reserved for Scheduled Castes and Scheduled Tribes”. It is therefore clear that as far as the posts coming under the promoted categories are concerned, there is no specific provision in the Regulations wherein the employer is bound to effect promotion after applying the principles of reservation. Therefore the reliance placed by the petitioner on Sec.19(2) of the Act does not appear to be correct. Even if 10% of posts in each grade are reserved for Scheduled Castes and Scheduled Tribes, including the post of Asst.Manager, it can be filled up by direct recruitment alone and not by promotion, going by Section 19(2) read with regulation No.8. Going by Sec.19(4) of the Act, the procedure for selection and appointment of officers and other employees of the Devaswom shall be such as may be determined by the Committee by Regulations made in this behalf, subject to the provisions of sub Sections (1), (2) and (3). It is accordingly that the Regulation of the year 1983 has been framed. O.P.No.10073 of 2002-Y. -: 5 :- Exactly a similar question was considered by a Division Bench of this Hon’ble Court in the judgment in OP.No.7372/1989. Therein, after referring to the counter affidavit filed by the State Government, in para.8 it was held as follows: “The State of Kerala has filed a counter affidavit in OP.No.15672/1995 and has taken a categorical stand that 10% of the posts for which appointment by direct recruitment are made shall be reserved for Scheduled Castes/Scheduled Tribes. It is stated in para.8 of the counter affidavit that the intention of the Government in including Sec.19(2) of the Act is that 10% of the post to which direct recruitment is made shall be reserved for Scheduled Castes/Tribes. The intention of the State Government is clear as can be seen from the regulations which are issued as approved by the Government invoking Section 39 of the Act.” 4. Apart from that going by the decisions of the Apex Court in Ajit Singh v. State of Punjab (AIR 1999 SC 3471) and in South Central Railway Employees Co-operative Credit Society Employees Union v. The Registrar of Co-operative Societies (AIR 1998 SC 703), the position is clear that the principles of reservation applies only in respect of the appointments in initial cadre and not in promotional cadres. In South Central Railway Employees Co- O.P.No.10073 of 2002-Y. -: 6 :- operative Credit Society Employees Union v. The Registrar of Co- operative Societies (AIR 1998 SC 703), in para.5, their Lordships observed as follows: “The Government undoubtedly has wide powers to give directions to the societies for applying the principle of reservation in the matter of promotion to the posts under the society. However when the notification issued by the Government under Sec.16 directed to follow the principle of reservation in appointments to all posts in all co-operative institutions to be filled by direct recruitment either on temporary or on regular basis, the only conclusion that can be arrived at is that the aforesaid direction of the Governor to apply the principles of reservation is only in respect of appointments in the initial cadre and not to any appointments in the promotional cadre. The expression ‘appointment’ in the notification cannot be widely interpreted to include promotion because that would render the words, “to be filled by direct recruitment on temporary or regular basis” wholly redundant or surplusage. It is a cardinal principle of construction not to brush aside words used in a statute or in a notification issued under a statute and full effect must be given to the entire words of an instrument.” 5. In the subsequent decision rendered by the Constitution Bench in Ajit Singh’s case, this principle has been categorically laid down. Their Lordships considered the question whether O.P.No.10073 of 2002-Y. -: 7 :- Articles 16(4) and 16(4A) guaranteed any fundamental right to reservation. Their Lordships held in para.28 as follows: “We next come to the question whether Article 16 (4) and Article 16(4A) guaranteed any fundamental right to reservation. It should be noted that both these Articles open with a non-obstante clause - “Nothing in this Article shall prevent the State from making any provision for reservation . . . . . .” There is a marked difference in the language employed in Article 16(1) on the one hand and Article 16(4) and Article 16(4A). There is no directive or command in Article 16(4) or Article 16(4A) as in Article 16(i). On the face of it, the above language in each of Articles 16(4) and 16(4A), is in the nature of an enabling provision and it has been so held in judgments rendered by Constitution Benches and in other cases right from 1963.” It was held that both Articles 16(4) and 16(4A) do not confer any fundamental rights nor do they impose any constitutional duties but are only in the nature of enabling provision vesting a discretion in the State to consider providing reservation if the circumstances mentioned in those Articles so warranted. (para.31). In the light of the above legal position it cannot be stated that there is a fundamental right for the petitioner to claim promotion by applying the principles of reservation. At any rate, the purport of O.P.No.10073 of 2002-Y. -: 8 :- Section 19(2) is only to insist for following the principles of reservation when appointments are made by direct recruitment. The word 'appointment' therein does not indicate that it covers promotion also. For all these reasons the Original Petition fails and the same is dismissed. T.R.RAMACHANDRAN NAIR, JUDGE. kvs/-