IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 WP(C).No. 21221 of 2008(B) --------------------------------------- PETITIONER: ------------------- GIRISH KUMAR M., BHAGEERATHI NIVAS, MUTTADA P.O., THIRUVANANTHAPURAM 695 025. BY ADVS. MR.N.SUGATHAN, SMT.VARSHA BHASKAR, MR.S.PRASANTH (AYYAPPANKAVU). RESPONDENTS: ------------------------ 1. TRAVANCORE DEVASWAOM BOARD, REPRESENTED BY THE SECRETARY, NANTHANCODE, THIRUVANANTHAPURAM -3. 2. THE COMMISSIONER, TRAVANCORE DEVASWOM BOARD, NANTHANCODE,THORUVANANTHAPURAM -3. 3. CHIEF ENGINEER, (GENERAL), TRAVANCORE DEVASWOM BOARD, NANTHANCODE,THORUVANANTHAPURAM -3. R1 TO R3 BY ADV. MR.NAGARAJ NARAYANAN, S.C, TDB. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/01/2009, ALONG WITH W.P.(C). NO. 31207/2008, THE COURT ON 30/01/2009 DELIVERED THE FOLLOWING: W.P.(C). NO.21221/2008-B: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE MEMO DTD. 06/07/2005 ISSUED BY THE R.1. EXT.P.2: COPY OF THE LETTER DTD. 08/06/2007 OF THE INFORMATION OFFICER OF TRAVANCORE DEVASWOM BOARD. EXT.P.3: COPY OF THE APPLICATION DTD.10/03/2008 SUBMITTED BY THE PETITIONER TO THE P.I.O OF T.D. BOARD. EXT.P.4: COPY OF THE LETTER DTD. 17/03/2008 OF THE PRO OF TD BOARD TO THE PETITIONER. EXT.P.5: COPY OF THE REPRESENTATION DTD. 07/05/2008 OF THE PETITIONER TO THE T.D. BOARD. EXT.P.6: COPY OF THE NOTIFICATION DTD. 28/07/2008 ISSUED BY TRAVANCORE DEVASWOM BOARD. EXT.P.7: COPY OF THE APPLICATION DTD.07/05/2008 OF THE PETITIONER TO THE PUBLIC INFORMATION OFFICER OF TD BOARD. EXT.P.8: COPY OF THE REPLY DTD. 23/05/2008 OF THE PUBLIC INFORMATION OFFICER TO THE PETITIONER. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos.21221 & 31207 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of January, 2009. JUDGMENT In both these cases the issue raised relates to the filling up of one vacancy in the cadre of Asst. Engineer (Civil) in the Travancore Devaswom Board. The petitioner in Writ Petition No.21221/2008 is seeking to fill up the same by way of direct recruitment and by appointing him on the basis of his assignment in the rank list published on 21.7.2005. The petitioner in Writ Petition No.31207/2008 is working as IInd Grade Overseer and he is seeking for appointment as Assistant Engineer in the quota provided as per the relevant recruitment rules. In Writ Petition No.21221/2008 there is an interim order dated 29.9.2008 restraining the respondents from filling up of one vacancy of Asst. Engineer (Civil) until further orders. Since the issue relates to the filling up of the vacancy of Asst. Engineer (Civil), both the writ petitions are heard together and are disposed of by a common judgment. 2. First, I will consider the facts in Writ Petition No.21221/2008 and the claim of the petitioner therein for appointment. The Travancore Devaswom Board, the first respondent (hereinafter referred to as 'the WPC 21221 & 31207/08 2 Board') published a notification in 2003 inviting applications for appointment as Asst. Engineer (Civil). The petitioner is a B.Tech. Degree Holder. After the selection process was over, the Board published a rank list of 19 candidates on 21.7.2005. The petitioner is serial No.8 in the rank list. Initially, four candidates were appointed as per order dated 22.7.2005. Rank No.5 was appointed on 6.8.2005, rank No.6 was appointed on 17.10.2005 and rank No.7 was appointed on 28.1.2008 pursuant to the judgment of this court in Writ Petition No.11750/2007 in an earlier vacancy. According to the petitioner, one vacancy arose on 31.5.2007 and another vacancy arose on 30.6.2008 and he is the next candidate to be appointed in any one of the vacancies. The petitioner contends that the period of rank list even though originally was for one year, that was extended by another two years and it expires only on 20.7.2008. Accordingly, he rests his claim for appointment in the said vacancy. 3. The first respondent Board has filed a statement and later they have filed a counter affidavit and the petitioner has filed a reply affidavit. The stand taken by the Board therein reflects the following: 4. Out of the two vacancies, one was filled up by one Shri V.K. Hariharlal, in accordance with the directions in the judgment in Writ WPC 21221 & 31207/08 3 Petition No.30982/2006 in which there was an order to the effect that “any vacancy that will arise on or after 19.12.2006 is to be filled by in-service degree holders eligible for appointment as Assistant Engineer until 6% quota is satisfied.” In the second vacancy which arose on 30.6.2008, going by the recruitment rules and as per ratio, it would have been filled up by a diploma holder, but there is no diploma holder in the cadre of Ist Grade Overseer to be promoted as Asst. Engineer. It is further pointed out that as per Rule 9 of the Rules relating to appointments under the Board as amended in 1987, the validity of the rank list prepared would be for a period of one year from the date of publication and apart from one executive order of the Board dated 20.7.2006 there is nothing to show that the recruitment rules have been amended to extend the validity of the rank list. The order extending the rank list is under challenge in Writ Petition No.34038/2006. Pursuant to the amendment of the Act and introduction of Section 29A on 12.4.2007, all appointments to various posts in the Devaswom Administrative Service have to be made only through the Public Service Commission. It is further pointed out that the rank list herein along with the rank lists published for certain other posts have been cancelled pursuant to the acceptance of the findings rendered by the High Power Commission WPC 21221 & 31207/08 4 headed by Hon'ble Mr. Justice K.S. Paripoornan appointed by this court, wherein various irregularities and corruption have been found in respect of the selection process to various posts. It is also contended that by mere inclusion of his name in the rank list, the petitioner is not entitled to enforce appointment in these proceedings. 5. Learned counsel for the petitioner submitted that even though the validity of the rank list has expired, the vacancy arose prior to the expiry of the rank list and hence the petitioner is entitled to be appointed. It is pointed out that the Board cannot now go back on the order extending the period of validity of the rank list. It is further pointed out that Section 29A will apply only to vacancies which arose after coming into force of the said provision on 1.7.2008. It is also contended that even going by the judgment of this court in Writ Petition No.30982/2006, the vacancy should be filled up only by a degree holder as no diploma holder is available and therefore the Board will have to resort to appointment by direct recruitment and not by promotion. 6. It is well settled that mere inclusion of a person's name in the rank list, will not confer him a claim for appointment as a matter of right. Herein, the question is whether the vacancy available, is to be filled up by WPC 21221 & 31207/08 5 direct recruitment. The rank list has already expired on 20.7.2008. The crucial fact to be considered here is whether the Board could have appointed the petitioner in the said vacancy. As the rank list had expired on 20.7.2008 and in the absence of an interim order by this court to revive the rank list, I am of the view that an expired rank list cannot be operated upon. Once the rank list has expired, the right of the petitioner to seek appointment based on it does not survive. Of course, the vacancy in this case arose prior to the expiry of the rank list. In the light of the well accepted principle that on expiry of the rank list, the right of the candidate to be considered does not survive, I am of the view that the petitioner is not entitled for any relief in this writ petition. 7. There is one more hurdle as far as the petitioner is concerned. Going by the averments in the statement as well as in the counter affidavit, the Board had cancelled all the rank lists prepared to various posts by proceedings dated 4.12.2007 and they decided to have resort to fresh recruitment. The rank list as such has been cancelled pursuant to the report of the High Power Commission headed by the Hon'ble Justice K.S. Paripoornan. In these circumstances, this court cannot compel the Board to revive the same. The decision of the Board to cancel the rank list being in WPC 21221 & 31207/08 6 implementation of the Report of the High Power Commission, it cannot be said to be malafide or for extraneous reasons. Therefore, even if the vacancy which arose on 30.6.2008 is to be filled up by direct recruitment, then the decision of the Board dated 4.12.2007 to cancel the rank list itself will deprive the petitioner of any chance to get the appointment. For that reason also, the petitioner is not entitled to succeed. In that view of the matter, I am not considering the applicability of Section 29A of the amended Act. 8. Learned counsel for the petitioner vehemently contended that the vacancy is not available to be filled up by promotion and it will have to be filled up only by direct recruitment and if that be so, the petitioner is entitled to be appointed. As far as the petitioner is concerned, in the light of the view taken by me already, whether the same has to be filled up by in-service candidates by applying the quota rule or direct recruitment is only academic, as the two factors pointed out against him cut at the roots of his claim. Therefore, as far as Writ Petition No.21221/2008 is concerned, I hold that the petitioner is not entitled for a direction to post him as Asst. Engineer (Civil) in the existing vacancy. 9. Then, the other question is whether the petitioner in Writ Petition WPC 21221 & 31207/08 7 No.31207/2008 is entitled for appointment in the existing vacancy. He entered service on 19.6.1986 as IIIrd Grade Overseer and was promoted as IInd Grade Overseer in February, 1991. The third respondent is his junior who entered service as IIIrd Grade Overseer in 1992. The third respondent acquired B.Tech. Degree in Civil Engineering in November 2005 and the petitioner acquired B.Tech. Degree in January 2008. He submitted an application seeking appointment thereafter. On the basis of the amendment of the Rules Ext.P1, 6% of the vacancies should be set apart for direct recruitment from among in-service candidates which comes to 1.8 and thus two posts are liable to be set apart for in-service candidates for filling up the 6% quota. He is challenging Ext.P4 by which the third respondent was promoted in the existing vacancy by order dated 24.9.2008. According to the petitioner, as on that date he was qualified for appointment and therefore the said vacancy could have been filled up by promoting him. Alternatively, it is contended that his right for promotion has to be favourably considered in the second vacancy which arose on 30.6.2008. It is pointed out that as the petitioner in Writ Petition No.21221/2008 has no claim to the 6% quota being a direct recruitee, as the rank list has also expired, for filling up the 6% quota, the petitioner should be directed to be WPC 21221 & 31207/08 8 appointed by appointment/promotion. 10. In the counter affidavit filed by the third respondent, it is pointed out that he acquired B.Tech. Degree in November 2005 and since his claim was not considered, he approached this court and as per Ext.R3(a) judgment, this court directed the first respondent to consider his claim and again he had to approach this court by filing Writ Petition No.30982/2006 which was disposed of by Ext.R3(c) judgment. In Ext.R3(c) judgment, this court directed that any vacancy that will arise on or after 19.12.2006 which is to be filled up by degree holders shall be filled up by in-service degree holders eligible for appointment as Assistant Engineer until 6% quota is satisfied. According to him, he was the only in-service candidate holding B.Tech. Degree and eligible for appointment as per the 6% quota on the date of occurrence of the vacancy. Again, by Ext.R3(e) judgment in Writ Petition No.13788/2007 this court directed the first respondent to pass orders on his representation. The amendment of the rules have been brought in with effect from 19.12.2006. Being the only qualified candidate, he has already been appointed and the petitioner has no claim to the said vacancy, as he has acquired qualification only during January 2008. 11. The Board has filed a counter affidavit contending inter-alia that WPC 21221 & 31207/08 9 the method of appointment to the post of Asst. Engineer prescribed in Ext.P2 is in the ratio of 6 : 3: 1. The amended rule was published in the Gazette dated 19.8.2008 which has retrospective effect from 19.12.2006 and the date 9.12.2006 in the notification is a mistake. The third respondent had acquired qualification earlier than the petitioner and thus he was appointed. The validity of the rank list for appointment by direct recruitment was extended by the previous Board upto 20.7.2008 and rank Nos.1 to 7 have already been appointed. As on 1.7.2008 the total strength of Assistant Engineers is 26, out of which there are 14 graduates, 4 diploma holders and 6 certificate holders and that there are 2 vacancies of Assistant Engineers. In the light of the decision of this court in Writ Petition No.30982/2006, the first vacancy was set apart for filling up by degree holders and the second one will have to go to the diploma holders. The first vacancy arose on 31.5.2007 consequent on the retirement of one Shri P.C. Unnikrishnan Nair and the third respondent was promoted as per Ext.R1(c) order. The petitioner was not qualified at that time as he obtained the degree only in January, 2008. The second vacancy arose on 30.6.2008 on the retirement of one Shri C. Rajendran which is lying vacant. The contention that the second vacancy also is to be filled up by 6% quota, WPC 21221 & 31207/08 10 raised by the petitioner is not correct as it will have to go to a diploma holder. 12. The cadre strength of Assistant Engineer is 26 going by the counter affidavit filed by the Board. Six percent will be 1.58. Going by the judgment Ext.R1(b) produced along with the counter affidavit, any vacancy that will arise on and after 19.12.2006 which is to be filled up by degree holders, shall be filled up by in service degree holders eligible for appointment as Assistant Engineers until the 6% quota is satisfied. The first vacancy arose on 31.5.2007 and the claim of the third respondent was rightly considered as he alone was qualified as on that date. The eligbility of the petitioner to be considered for promotion is only after the acquisition of qualification in January 2008. The second vacancy has arisen on 30.6.2008. Admittedly no diploma holder is available to satisfy the 6% quota and there should be an appointment of 1.56 persons to fill up the quota for degree holders. As a person cannot be divided, necessarily the figure will have to be rounded off and therefore the learned counsel for the petitioner is right in submitting that to satisfy the 6% quota, at least two persons having degree should be appointed. The amendment brought by Ext.R1(a) is in the following terms: WPC 21221 & 31207/08 11 “Subject to the provisions of Note 1 in making appointment to the category by direct recruitment appointment to 54$ of the post shall be made by direct recruitment of candidates from the open market and 6% by direct recruitment from among Draftsman/Overseers, First Grade and Second Grade in Category 4 Clerks, Typists, Typist- Clerks or Confidential Assistant and Third Grade Overseers/Tracers in the Maramath wing of the Travancore Devaswom Board provided they possess any of the qualification in Annexure II to these rules and that in the case of First and Second Grade Draftsman/Overseers and Third Grade Overseers/Tracers they should have rendered not less than two years service in one or more categories and in the case of Clerks/Typists/Typist-Clerks/Confidential Assistant they should have rendered not less than six years service in the respective categories.” Only in the absence of qualified hands alone, the post can be filled up by direct recruitment as per the proviso. Here, admittedly the petitioner has acquired qualification in January 2008 and the vacancy arose on 30.6.2008. Therefore, as the second vacancy has also to be filled up by an in-service degree holder, going by Ext.R3(c) judgment, to satisfy the 6% quota the petitioner is entitled for promotion. 13. The first respondent Board will accordingly pass appropriate orders in the matter after considering the claim of the petitioner in Writ Petition No.31207/2008 and in accordance with the findings hereinwithin a WPC 21221 & 31207/08 12 period of six weeks from the date of receipt of a copy of this judgment. The dispute regarding inter-se seniority, if any, between the petitioner and the third respondent is left open to be agitated in appropriate proceedings. In the result, Writ Petition No.21221/2008 is dismissed and Writ Petition No.31207/2008 is allowed as indicated above. No costs. (T.R. Ramachandran Nair, Judge.) kav/