IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 14TH AUGUST 2008 / 23RD SRAVANA 1930 WA.No. 1707 of 2008 --------------------- AGAINST THE JUDGEMENT IN WPC.15378/2008 Dated 24/07/2008 .................... APPELLANT: PETITIONER: --------------------------- V.P.SHEEJA, W/O.VINOD V.C.,AGED 30 YEARS RESIDING AT KUNIYIL HOUSE, POST PANTHAKKAL, MOOLAKKADAVU, MAHE. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENTS: RESPONDENTS: ----------------------------------- 1. THE EXECUTIVE OFFICER, SREE RAMASWAMY TEMPLE, THIRUVANGAD, THALASSERY, KANNUR DISTRICT. 2. SMT.JAYASREE, W/O.LATE SIVARAMAKRISHNA MOOSAD, 'RAIL VIEW', THIRUVANGAD, THALASSERY, KANNUR DISTRICT. 3. THE MANAGING TRUSTEE, BOARD OF TRUSTEES, SREE RAMASWAMY TEMPLE, THIRUVANGAD, THALASSERY, KANNUR DISTRICT. 4. THE COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS, CIVIL STATION, KOZHIKODE. 5. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPLE SECRETARY, DEPARTMENT OF DEVASWOM, SECRETARIAT, THIRUVANANTHAPURAM. R1 BY ADV. SRI K.V. SOHAN R2 BY ADV. SRI R. SURENDRAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & K.P. BALACHANDRAN, JJ. --------------------------------------------------------------- Writ Appeal No 1707 of 2008 --------------------------------------------------------------- Dated this the 14th August 2008 JUDGMENT Koshy, J. Second respondent's husband died in harness while working as Clerk in the Thalassery Sree Ramaswamy temple. After his death second respondent was appointed by Ext. P1 order on a provisional basis, and for personal reasons she resigned from service and as per Ext P3 resolution her resignation was decided to be accepted by the Board of Trustees. But she had withdrawn the resignation letter. In that vacancy appellant-petitioner was appointed on daily wage basis temporarily by Ext P4 order dated 09.10.1998. By Ext P5 order she was appointed in the scale of pay of Rs 900-20-1100-25-1300-30- 1450 on a temporary basis. It was specifically stated in Ext P5 that the appointment will be for 89 days or till appointment is made on regular basis. She was not given regular appointment but scale of pay was WA 1707/08 2 given. Ext. P7 also shows that she was never regularised as her contract of employment was extended from time to time for specific period. At this distance of time the Board cannot say that her service cannot be regularised. But till regularisation is done she cannot be promoted. Therefore learned judge directed the Board to consider her regularisation of service. Meanwhile second respondent filed representation before the Government explaining the reason why she resigned and also the necessity for appointing her, and on the basis of the direction of the Government she was appointed by the second respondent as L.D. Clerk with effect from 16.05.2001 on a permanent basis on the strength of the fact that she was appointed under the dying in harness scheme. When a subsequent vacancy of U.D. Clerk arose in the temple second respondent was promoted 01.06.2006. This was challenged by the petitioner before the Commissioner which was rejected as per Ext P12 order. Government also affirmed the order of the Commissioner as per Ext. P15. 2. The learned judge accepted the contention of the Department and found that Ext P15 warrants no interference. It was noticed that second respondent had a claim to be appointed WA 1707/08 3 under the compassionate appointment scheme and hence she ought to have been appointed against a permanent vacancy. Since there was ban on appointment at the relevant time she was originally appointed on a provisional basis by Ext.P1. In any event she was appointed on a permanent basis with effect from 16.05.2001. Further no material has been placed before court to show that the petitioner was appointed against a permanent vacancy. Further she has not completed 25 years of age at the time of her first appointment on a temporary basis by Exts. P4 and P5 and she cannot be appointed permanently at that time. That may be the reason for appointing her on a provisional basis by Ext P4. It is true that petitioner was originally appointed on a contractual basis and subsequently on a temporary basis for various periods. Petitioner cannot therefore claim seniority over the second respondent who was appointed on a permanent basis. Second respondent was holding the permanent post of L.D. Clerk from 16.05.2001 and when the vacancy in the post of U.D. Clerk arose the second respondent who was aged 57 was promoted with effect from 01.06.2006. At that time petitioner's service was not regularised. We see no reason to disturb the seniority of the second respondent who is having seniority with WA 1707/08 4 effect from 16.05.2001 in the category of L.D Clerk. The writ appeal is dismissed. Sd/- J.B. KOSHY Judge Sd/- K.P.BALACHANDRAN Judge 14/08/2008 en [true copy] WA 1707/08 5