IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 2ND MARCH 2009 / 11TH PHALGUNA 1930 WP(C).No. 21062 of 2007(G) --------------------------------------- PETITIONER(S): ------------------------- M.SATHEESH KUMAR ASSISTANT DEVASWOM COMMISSIONER, ULLOOR GROUP TRAVANCORE DEVASWOM BOARD THIRUVANANTHAPURAM. BY ADV.MR.P.RAVINDRAN, SENIOR ADVOCATE BY ADV.MR.V.VIJULAL MR.R.T.PRADEEP RESPONDENT(S): -------------------------- 1. TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, NANTHANCODE, THIRUVANANTHAPURAM 2. THE DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM. 3. K.BALAGANGADHARAN, ASSISTANT DEVASWOM ACCOUNTS OFFICER, DEVASWOM ACCOUNTS OFFICE, NANTHANCODE, THIRUVANANTHAPURAM. 4. V.S.JAYAKUMAR, ASSISTANT SECRETARY HIGH COURT AUDIT SECTION,TRAVANCORE DEVASWOM BOARD,NANTHANCODE,THIRUVANANTHAPURAM. BY ADVS. SRI.NAGARAJ NARAYANAN FOR R1 & 2 MR.P.RAMAKRISHNAN FOR R.4 MR.C.ANIL KUMAR FOR R.4 MR.S.P.ARAVINDAKSHAN PILLAY FOR R.3 SMT.N.SANTHA FOR R.3 MR.S.A.ANAND FOR R.3 MR.PETER JOSE CHRISTO FOR R.3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/02/2009, ALONG WITH WPC NO. 34409 OF 2007 THE COURT ON 02/03/2009 THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.21062/2007 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE MEMO DT. 27.7.81 ISSUED BY DEVASWOM COMMISSIONER. P2:- COPY OF THE PROCEEDINGS OF IST RESPONDENT DEVASWOM BOARD DT. 22.5.79. P3:- COPY OF THE RULES REGARDING SERVICE CONDITIONS OF DEVASWOM EMPLOYEES DT. 14.7.79 PUBLISHED IN KERALA GAZETTE DT. 25.12.79. P4:- COPY OF THE LETTER OF SECRETARY DEVASWOM BOARD TO DEVASWOM COMMISSIONER DT. 24.8.84. P5:- COPY OF THE ORDER DT. 5.9.84 OF DEVASWOM COMMISSIONER. P6:- COPY OF THE OFFICE ORDER DT. 2.9.87 OF DEVASWOM COMMISSIONER. P7:- COPY OF THE OFFICE ORDER DT. 1`7.11.89 OF DEVASWOM COMMISSIONER. P8:- COPY OF THE OFFICE ORDER DT. 17.2.93 OF SECRETARY DEVASWOM BOARD IST RESPONDENT. P9:- COPY OF THE MEMO DT. 31.8.94 ISSUED BY DEVASWOM COMMISSIONER 2ND RESPONDENT. P10:- COPY OF THE OBJECTION FILED BY PETITIONER BEFORE THE 2ND RESPONDENT 3.10.94. P11:- COPY OF THE JUDGMENT IN OP. 7033/95 DT. 18.2.05 HIGH COURT OF KERALA. P12:- COPY OF THE ORDER OF 2ND RESPONDENT-DEVASWOM COMMISSIONER DT. 19.5.07. P13:- COPY OF THE PROCEEDINGS DT. 8.2.08. P13:- COPY OF THE ORDER DT. 30.10.08 OF IST RESPONDENT (IA. NO.14933/2008) RESPONDENT'S EXHIBITS R1(a):- COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT DT. 20.7.94. R1(b):- COPY OF THE ORDER R.O.C. NO.828/79/EST. DT. 22.5.79. R1(c):- COPY OF THE ORDER ROC. NO.828/79/EST. DT. 14.7.79. R1(d):- COPY OF THE ORDER ROC. NO.4715/62/EST. DT. 14.2.1963 ALONG WITH THE GOVERNMENT ORDER DT. 14.1.1963. W.P.(C) NO.21062/2007 R1(e):- COPY OF THE ORDER ROC. NO.5309/70/EST. DT. 26.1.73. R1(f):- COPY OF THE ORDER ROC. NO.961/77/EST. DT. 22.7.77. R1(g):- COPY OF THE ORDER ROC. NO.4964/78/EST. DT. 7.6.79. R1(h):- COPY OF THE SENIORITY LIST OF ASSISTANT DEVASWOM COMMISSIONER AS ON 1.7.07. R1(i):- COPY OF THE ORDER ROC. NO.1021/80/EST. DT. 18.8.84. R1(j):- COPY OF THE GOVERNMENT ORDER GO(MS) NO.235/71/PD DT. 14.8.71. R1(k):- COPY OF THE GOVERNMENT ORDER GO(MS) NO.303/73/PD DT. 21.11.73. R1(l):- COPY OF THE PROCEEDINGS OF THE DEVASWOM COMMISSIONER DT. 26.11.08. R1(m):- COPY OF THE APPLICATION SUBMITTED BY SRI.P.N.RAJASEKHARAN DT. 26.3.86. R1(n):- COPY OF THE LETTER ISSUED BY THE SECRETARY, TRAVANCORE DEVASWOM BOARD DT. 8.7.86. R1(o):- COPY OF THE LIST OF ORDERS ISSUED BY THE BOARD AND DEVASWOM COMMISSIONER RESTORING SENIORITY/PROMOTION WITH RETROSPECTIVE EFFECT. R1(p):- COPY OF THE ORDER REVERTING THE PETITIONER DT. 25.11.08. R1(q):- COPY OF THE ORDER PASSED BY THIS SRI.B.UNNIKRISHNAN DT. 25.11.08. R1(r):- COPY OF THE ORDER PASSED BY THIS HONOURABLE COURT IN DBP NO.10/1008 DT. 19.12.2008. R1(s):- COPY OF THE COMPLAINT SUBMITTED BY SRI.K.VIJAYAN DT. 31.12.08. R1(t):- COPY OF THE REPLY SUBMITTED BY THE PETITIONER DT. 19.7.09. R1(u):- COPY OF THE LETTER ISSUED BY THE PETITIONER TO THE PRESIDENT OF THE BOARD DT. 29.12.08. R4(a):- COPY OF THE OFFICE ORDER NO.ROC 961/77/EST. DT. 22.7.77. R4(b):- COPY OF THE OFFICE ORDER NO.ROC. 4964/ 78/EST. DT. 7.6.79. R4(c):- COPY OF THE PROCEEDINGS OF THE DEVASWOM BOARD DT. 22.5.79. W.P.(C) NO.21062/2007 R4(d):- COPY OF THE ROC. NO.828/79/EST. DT. 14.7.79 ISSUED BY THE DEVASWOM BOARD. R4(e):- COPY OF THE ROC. NO.47125/62/EST. DT. 14.2.63 ISSUED BY THE DEVASWOM BOARD. R4(f):- COPY OF THE ROC. NO.5309/70/EST. DT. 26.10.73 ISSUED BY THE DEVASWOM BOARD. R4(g):- COPY OF THE GRADATION LIST DT. 18.8.84 PUBLISHED BY THE BOARD. R4(h):- COPY OF THE ROC. NO.112704/08/EST. DT. 26.11.08 ISSUED BY THE DEVASWOM BOARD. /TRUE COPY/ P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 21062 & 34409 of 2007 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of March, 2009. JUDGMENT Both these writ petitions concern the same issues and therefore they are disposed of by a common judgment. Both petitioners were working as Assistant Devaswom Commissioners at the time of filing of the writ petitions. The reliefs sought for is to quash the order by which respondents 3 and 4 are assigned seniority over the petitioners. The said order is produced as Ext.P12 in Writ Petition No.21062/2007 and Ext.P10 in the other writ petition. 2. The relevant facts in relation to Writ Petition No.21062/2007 are the following: The petitioner entered service as L.D. Clerk pursuant to Ext.P1 appointment order dated 27.7.1981. The next promotion is to the post of U.D.Clerk. The same depends upon passing Devaswom Officers’ Test and Account Test (Lower). The petitioner passed Devaswom Officers’ Test on 10.2.1983 and Account Test (Lower) on 4.5.1984. 3. The petitioner in Writ Petition No.34409/2007 entered service as a Lower Division Clerk on 26.10.1978 as evidenced by the appointment order wpc 21062 & 34409/07 2 Ext.P1. He has got SSLC and has passed Account Test (Lower) and Devaswom Officers’ Test in June, 1982 and 8.5.1984 respectively. 4. Both the petitioners were promoted as U.D. Clerks as per order dated 5.9.2004 (Ext.P5 in Writ Petition No.21062/07). Respondents 3 and 4 herein are juniors to the petitioners in service. The third respondent entered service as L.D. Clerk on 30.7.1981. He passed Account Test (Lower) on 4.10.1983 and the Devaswom Officers’ Test on 1.6.1984. He was promoted to the cadre of U.D. Clerk on 12.9.1984. The fourth respondent entered service as L.D. Clerk on 9.11.1981 and was relieved on 10.12.1981 for want of vacancy. Later, he was reappointed and joined duty on 7.6.1982. His probation in the cadre of L.D. Clerk was declared on 15.5.1983. He acquired Account Test (Lower) and Devaswom Officers’ Test only on 14.9.1983 and 1.6.1984 respectively. 5. The petitioners were promoted as Head Clerk with effect from 7.3.1986 and 9.12.1985 respectively. They were further promoted as Junior Superintendent as per order dated 17.11.1989 and 31.5.1989 respectively. They were promoted as Asst. Devaswom Commissioner as per orders dated 17.2.1993 and 20.6.1991 respectively. 6. The third respondent was promoted as Head Clerk on 3.2.1987 wpc 21062 & 34409/07 3 and Junior Superintendent and Asst. Devaswom Commissioner on 8.8.1990 and 6.10.1995 respectively. The 4th respondent was promoted as Head Clerk on 1.9.1987, Junior Superintendent on 1.10.1990 and Asst. Commissioner 4.10.1995 respectively. 7. The Devaswom Board had framed rules for fixation of seniority and promotion as empowered under Section 35 of the Travancore Cochin Hindu Religious Institutions Act, 1950 which was brought into force as per the Gazette Notification dated 25.12.1979. This is produced as Ext.P3. The said rules superseded the provisions of the Devaswom Manual. Rule 9 of the said Rules concerns promotion and Rule 8 concerns seniority. Rule 9 (3) provides that “Promotions in a service, or class which depends upon passing of any examination, whether general or departmental, shall ordinarily be made with reference to the condition existing at the time of occurrence of the vacancies and not with reference to those at the time when the question of promotion is taken up.” 8. After respondents 3 and 4 were promoted as Junior Superintendents, they filed representations before the Devaswom Board complaining that the principles under Rule 28(bbb) of KS & SSR should be applied to their promotion to the post of U.D. Clerk. They also contended wpc 21062 & 34409/07 4 that there were 18 vacancies at that point of time but only 16 persons were considered while considering the eligibility of the persons for promotion. According to them, when the day following the last date of the examination is taken, they have acquired the test qualification prior to the petitioners, going by the amended Rules 28(bbb) of KS & SSR. 9. In Writ Petition No.21062/2007, Ext.P9 dated 31.8.1994 is the memo issued to the petitioner seeking his objection to the matter and he submitted Ext.P10 explanation. The petitioner challenged the same by filing O.P.No.7033/1995 wherein a stay of reversion was granted. The original petition was finally disposed of by Ext.P11 judgment directing the second respondent to take a decision after passing a speaking order. Ext.P12 is the resultant order passed by the Devaswom Board. In Writ Petition No.34409/2007 Ext.P8 is the memo and Ext.P9 is the explanation. 10. In Ext.P12, the view taken is that the principles under Rule 28 (bbb) of KS & SSR are applicable to the service of the Devaswom Board even though it is not specifically implemented by appropriate orders. Regarding the number of vacancies available, it is reckoned as 18 and not 16. wpc 21062 & 34409/07 5 11. Heard Shri P. Ravindran, learned Senior Counsel and Shri S. Subhash Chand learned counsel for the petitioners, Shri Nagaraj Narayanan and Shri K.N. Venugopala Panicker, learned counsel for the Devaswom Board and Shri P. Ramakrishnan and Shri S.P.Aravindakshan Pillai for respondents 3 and 4. 12. Learned Senior Counsel Shri P. Ravindran mainly raised the following arguments: The promotion is governed by Rule 9 of the Rules (Ext.P3). The provisions of KS & SSR, especially Rule 28(bbb) which itself was brought by amendment, have not been incorporated in Ext.P3, by any amendment of Ext.P3 rules. Therefore, the qualification as on the date of occurrence of vacancy alone should have been the criteria. In the absence of anything in the rules to incorporate the principles of Rule 28 (bbb), the approach made by the respondents is totally in violation of the Rules. It is further pointed out that the seniority was never under dispute and only after a lapse of 10 years, the same was sought to be raised. Therefore, the settled seniority cannot be unsettled after a long lapse of time. The decisions of the Hon'ble Supreme Court in Rabindra Nath Bose and others v. Union of India and others (AIR 1970 SC 470), Charls K. Skaria and others v. Dr.C. Mathew and others (AIR 1980 SC 1230) and wpc 21062 & 34409/07 6 K.A. Abdul Majeed v. State of Kerala and others{(2001) 6 SCC 292} and of this Court in R.K.V. Motors & Timbers (P) Ltd. v. Regional Transport Officer (1982 KLT 116 (FB)), Ravunnikutty v. Rosalind & others (1987 (2) KLT 716), Mohanan v. State of Kerala(2000 (2) KLT 798), Usha Devi v. State of Kerala (2002 (1) KLT 615) and Balakrishan v. A.E.O., Vadakara (2005 (4) KLT 64) were relied upon in support of the above pleas. Learned counsel Shri S. Subhash Chand supported the above arguments of the learned Senior Counsel. 13. The main arguments raised by Shri Nagaraj Narayanan, learned Standing Counsel for the Devaswom Board are that in Ext.P3 itself in Rules 2 and 3, it has been made clear that the conditions of service will be governed by the provisions of K.S.R. and the rulings and Government Orders issued by the Government from time to time. The above rules are not exhaustive and does not cover all the contingencies. The Devaswom Board was applying the principles in Rule 28(bbb) even on earlier occasions and even prior to the introduction of the rule, there are Government Orders in force applying the said principles which were being followed by the Board from time to time. Therefore, the said practice which is based on a reasonable criteria is sought to be followed and hence it wpc 21062 & 34409/07 7 cannot be violated. It is further submitted that there were two more vacancies which were not considered at the relevant point of time and therefore respondents 3 and 4 who were entitled to be considered for those vacancies, by applying the principles of Rule 28(bbb) were found eligible for restoration of the benefit. It is further pointed out that from 1995 onwards the matter could not be finalized in view of the challenge made by the petitioners in the writ petition filed before this court. Therefore, the sit back theory cannot apply to the facts of this case. 14. The first question is whether going by the scheme of the rules provided in Ext.P3, the principles stated in Rule 28(bbb) could be applied. Going by Rule 9(3) of the rules, promotions in a service, or class which depends upon passing of any examination, whether general or departmental, shall ordinarily be made with reference to the condition existing at the time of occurrence of the vacancies and not with reference to those at the time when the question of promotion is taken up. Under Explanation to Rule 28(bbb), the principles in the sub-rule shall apply for the drawal of increments and for promotion not involving change of duties against vacancies remaining unfilled for want of test qualified persons. As per sub- rule (b) of the said provision, the day following the last day of the whole wpc 21062 & 34409/07 8 examination or test in which the person has successfully completed the examination or test by passing one or more subjects, is the relevant criteria. Admittedly, such a provision is not there in Ext.P3 rules. The provisions of KS & SSR have not been incorporated or adopted in Ext.P3. Even by a reference the said principles have not been made applicable. 15. Herein, one more thing has to be noticed: Rule 28(bbb) was substituted as per G.O.(P) No.447/1984/GAD dated 10.12.1984, which was published in the Kerala Gazette No.9 dated 26.2.1985. Ext.P3 rules are of the year 1979. As noted already, the Rules of KS & SSR are not incorporated by reference in Ext.P3 rules. Rule 9 of Ext.P3 has not been amended at all even to adopt the principles engrafted in Rule 28(bbb). 16. A similar question was considered under the Kerala Education Rules by a Division Bench of this court in Balakrishnan's case (2005 (4) KLT 64). While considering the question whether Rule 28(bbb) will apply to aided school teachers, it was held that “Rule 28(bbb) in the KS & SSR had been framed under the Public Service Act, 1961. It is apparently not applicable to the aided school teachers. The service conditions of aided school teachers are as contained in Chapter XIV-A K.E.R. which is prescribed in terms of Section 12 of the Kerala Education Act. Therefore, wpc 21062 & 34409/07 9 Rule 28(bbb) as such cannot be pressed into their service conditions, as it does not form part of the Chapter XIV-A KER.” 17. Herein, the rules have been framed as provided under the Travancore Cochin Hindu Religions Institutions Act, 1950 under sub- section 2 of Section 35. The rules are titled as “Rules Regarding Service Conditions of Devaswom Employees.” In that view of the matter, as Rule 28(bbb) have not been specifically incorporated in the rules also, there cannot be any applicability of the above rule in the matter of promotion. The provisions of KS & SSR are applicable only to the State and Subordinate Services. The principle of legislation by incorporation by reference is an accepted legislative device. Only if such incorporation is made mention of in the relevant statutory rules, it could be applied. The said position was explained by the Apex Court in Nagpur Improvement Trust v. Vasantrao and others {(2002) 7 SCC 657. In para 31 it was held thus: “When an earlier Act or certain of its provisions are incorporated by reference into a later Act, the provisions so incorporated become part and parcel of the later Act as if they had been bodily transposed into it. The incorporation of an earlier Act into a later Act is a legislative device adopted for the same of convenience in order to avoid wpc 21062 & 34409/07 10 verbatim reproduction of the provisions of the earlier Act into the later. But this must be distinguished from a referential legislation which merely contains a reference or citation of the provisions of an earlier statute. In a case where a statute is incorporated, by reference, into a second statute, the repeal of the first statute by a third does not affect the second. The later Act along with the incorporated provisions of the earlier Act constitutes an independent legislation which is not modified or repealed by a modification or repeal of the earlier Act. However, where in a later Act there is a mere reference to an earlier Act, the modification, repeal or amendment of the statute that is referred, will also have an effect on the statute in which it is referred. It is equally well settled that the question whether a former statute is merely referred to or cited in a later statute, or whether it is wholly or partially incorporated therein, is a question of construction.” 18. Admittedly, herein there is no incorporation or adoption of the provisions of KS & SSR either expressly or by specific reference in Ext.P3. Therefore, the argument raised by the petitioners that the said principle cannot be adopted, is well founded. 19. The further question is whether the contention raised by the learned Standing Counsel for the Devaswom Board that Rules 2 and 3 will satisfy the adoption of the said principle, is correct or not. For easy reference, Rules 2 and 3 of Ext.P3 are extracted below: wpc 21062 & 34409/07 11 “2. The conditions of service of all devaswom employees envisaged in these rules shall be deemed to have been governed with effect from the 1st April 1963 by the rules contained in the Kerala Service Rules promulgated by the Kerala Government and the G.Os. issued from time to time by the Kerala Government from 1st November 1956, in so far as they have been adopted by resolutions taken by the Board and in so far as they are not repugnant to the context of the services under the Devaswom Board. 3. The conditions of service of Devaswom employees envisaged under these rules, shall continue to be governed by the rules contained in the Kerala Service Rules promulgated by the Kerala Government and the rulings and G.Os. issued by the Kerala Government from time to time in so far as they are not repugnant to the context of services under the Board, and until the Board frames independent and comprehensive rules to govern the services of their employees.” The argument raised is that till the Board framed independent and comprehensive rules, these provisions will apply. On a detailed scrutiny of the rules it is evident that the said argument cannot be sustained. Rule 2 only stipulates that those provisions of KSR and the Government Orders issued from time to time and adopted by the Board and in so far as they are not repugnant to the context of the services under the Board, would apply as regards the conditions of service of all Devaswom Board employees with wpc 21062 & 34409/07 12 effect from 1.4.1963. Under rule 3 also, the specific mention is only in respect to rules of KSR and the rulings and Govt. Orders issued by the Government from time to time. That only means that the provisions of KSR and the rulings and Government Orders contained therein issued by the Government from time to time unless they are repugnant to the services under the Board, will apply. Here, what is sought to be applied is the provisions of Rule 28(bbb) of KS & SSR. There is no mention of any rules of KS & SSR either in Rule 2 or in Rule 3 or in Rule 9. Therefore, reference to rulings and Government Orders in Rule 3 will have reference to those rulings and Government Orders which form part of the KSR alone. This is further clear on a reading of Rules 4 and 5. Rule 4 governs disciplinary proceedings and it is mentioned that they will be governed by the provisions of Kerala Civil Services (Classification, Control & Appeal) Rules, 1960, in so far as they are not repugnant to the conduct of the service under the Board. Rule 5 confers power on the Board to take a decision if any dispute or doubt arises as to the applicability or interpretation of the Rules contained in KSR or KCS (CC & A) Rules. A combined reading of Rules 2 to 4 along with Rule 5 make it clear that what is made mention of in Rule 3 is about the rules in KSR and the rulings and Government Orders wpc 21062 & 34409/07 13 issued by the Government from time to time under the said rules. The second limb is only a corollary to the first one, and not independent of it. It cannot have any application to the Government Orders or rules coming under the KS & SSR. Therefore, the argument raised by the learned Standing Counsel for the Board that rule 3 empowers the Board to make applicable the relevant provisions of KS & SSR and the Government Orders issued which were being followed by the Board from time to time, even after Ext.P3 rules were adopted in 1979, cannot hold good. One of the contentions raised by the respondents herein is the the principles under Rule 28(b) was incorporated in Rule 9 of Ext.P3 and Rule 28(bbb) being only an explanation to Rule 28(b), that will automatically be applicable and hence there is no illegality. The Board has taken a further contention that it is the discretion of the appointing authority to apply any of the two principles which determine the date of passing of examination and such an interpretation of the principle is not unreasonable, arbitrary or unfair in view of the application of the same principle in Government service by virtue of Rule 28(bbb). 20. The question is whether the appointing authority has got unlimited discretion in such matters. The statutory rules prescribe a wpc 21062 & 34409/07 14 particular mode governing the fixation of seniority and promotion. The rules have been framed as empowered under Section 35(2)(e) of the Travancore Cochin Hindu Religious institutions Act, 1950. Therefore, these rules are the statutory rules governing the matter. It is well settled that when the rules provide for a particular principle to be adopted for fixing the seniority and the qualification for promotion, the appointing authority cannot adopt their own principle from their discretion dehors the statutory rules. A person who is qualified for promotion under the relevant statutory rules cannot be denied such right by adopting any other principle which is not covered by the express provisions of the said rules. It is also a well settled principle that when rules have been framed under a statute, executive instructions which were in existence till then, cannot have any applicability. When they are in conflict with the subsequent statutory rules, the statutory rules alone prevail. The attempt by the respondents to contend, therefore, that prior to the coming into force of 1979 rules, they were adopting the particular Government Orders and therefore even after the adoption of 1979 rules, they should have application in addition to what is provided in Ext.P3 rules, cannot therefore hold good. Going by sub-rule (3) of Rule 9 of Ext.P3 Rules, the promotions which depend upon passing wpc 21062 & 34409/07 15 of any examination, whether general or departmental, shall ordinarily be made with reference to the conditions existing at the time of occurrence of the vacancies and not with reference to those at the time when the question of promotion is taken up. Therefore, the petitioners, if they are qualified as on the date of occurrence of vacancies, are entitled to be promoted. The additional prescriptions now sought to be made by adopting the principles of Rule 28(bbb)