Kerala High Court

Ajitha.K vs Guruvayur Devaswom Managing Committee on 15 October, 2015

Author:
P.R.Ramachandra Menon

Bench:
P.R.Ramachandra Menon

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE A.M.BABU

THURSDAY, THE 31ST DAY OF AUGUST 2017/9TH BHADRA, 1939

WA.No. 481 of 2016
------------------------------
AGAINST THE JUDGMENT IN W.P(C).NO. 24917 OF 2011(L), DATED 15-10-2015
---------------------

APPELLANT(S)/PETITIONERS IN WP(C) :
-------------------------------------------------------------

1. AJITHA.K,
W/O.C.S.MURALIKRISHNA, 'KRISHNA DHANAM',
MAMMIYOOR, GURUVAYUR.

2. GEETHA V.T,
W/O.T.K.SURESH BABU, MUNGOTTU POYIL HOUSE,
MUTHUVANNACHA, KUTTIYADI.

3. HARIDASAN.V,
S/O.SANKARAN NAIR V., VADAKKOOTTU HOUSE,
THIRUVENKIDAM, GURUVAYUR.

BY ADV. SRI.SAJEEV KUMAR K.GOPAL

RESPONDENT(S)/RESPONDENTS IN W.P.(C) :
-------------------------------------------------------------------

1. GURUVAYUR DEVASWOM MANAGING COMMITTEE,
GURUVAYUR DEVASWOM, GURUVAYUR - 680 101,
REPRESENTED Y ITS ADMINISTRATOR.

2. THE ADMINISTRATOR,
GURUVAYUR DEVASWOM, GURUVAYUR - 680 101.

3. THE COMMISSIONER,
GURUVAYUR DEVASWOM, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.

R1 & R2 BY ADV. SRI.V.KRISHNA MENON
R3 BY GOVERNMENT PLEADER SRI. T.K.ANANTHAKRISHNAN

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION
ON 24-05-2017, ALONG WITH W.P(C).NO. 19263 OF 2011 AND
CONNECTED CASES, THE COURT ON 31-08-2017 DELIVERED
THE FOLLOWING:
Msd.

[CASE REPORTABLE]

P.R. RAMACHANDRA MENON & A. M. BABU, JJ
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
W.A. No. 481 of 2016 and W.P.(C) Nos. 19263, 29442 &
28743 of 2011, 4628, 7701, 7899, 14871, 15060, 20704 & 21998
of 2012, 32574 of 2014, 4070, 4798 & 9085 of 2015 and 30078,
30079, 30756, 30799, 30800, 30801, 31085, 31086, 31411,
31486, 31645, 31720, 31722, 32008 & 34054 of 2016
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Dated, this the 31st day of August, 2017

JUDGMENT

Ramachandra Menon , J.

Whether the dictum contained in the
Secretary, State of

Karanataka and others Vs. Umadevi
[(2006) 4 SCC 1], rendered

by the Constitution Bench of the Apex Court giving certain benefits to

have the long tenure of temporary service of more than 10 years in

respect of irregular appointments (unlike illegal appointments) to be

regularised as a 'one time measure' could be taken as an 'ever to go

exercise' to give regularisation of temporary employees, as and when

they complete 10 years' service, as sought to be effected by the

Guruvayoor Devaswom Managing Committee ? Is the said Committee

justified in taking a resolution to regularise the service of such

temporary hands who are appointed quite recently, even in the year

2013 - '14, that too, without calling for applications by way of wide

W.A. No. 481 of 2016 and
connected cases

: 2 :

paper publication, but for confining such exercise notifying on the

Notice Board of the Devaswom Board or at times in certain local

dailies without calling for applications to fill up the regular vacancies?

Is it appropriate for the Committee to ignore the claim of persons

(temporary hands) who had served the Devaswom longer, even for

more than 10 years and to extend the benefit of regularisation to

persons having much lesser tenure of about 'two years', merely for

the reason that the former group having been sent out already were

not continuing in the service of the Devaswom? These are the vital

points to be considered and clarified in these matters .

2. The terms and conditions of service of employees in the

Guruvayoor Devaswom are governed by the provisions of the

Guruvayoor Devaswom Act, 1978
and the Regulations framed by the

Managing Committee [in exercise of the power conferred upon the

Committee under
Section 39
of the said Act]. As per the provisions

of the Act, the appointment of staff is to be carried out by the

Managing Committee, whereas the power to appoint 'temporary

hands' to meet the need of the hour is vested upon the Administrator

appointed/nominated under
Section 14
of the Act, of course, with the

prior approval of the Managing Committee, in terms of Regulation

W.A. No. 481 of 2016 and
connected cases

: 3 :

No.17 framed by the Managing Committee as aforesaid.

3. As per the Regulations, appointment to the regular post of

L.D.Clerks, Scavangers/Sweepers (as involved in the present case) is

to be made by the Committee from the eligible hands. The method of

appointment is by way of 'direct recruitment', either by conducting a

written test or interview or both.

4. It is not a matter of dispute that no regular appointment was

being effected by the Committee in the Guruvayoor Devaswom for

quite long. Due to one or other reason, the vacancies were being

filled up by appointing persons on temporary basis and they were

permitted to be continued and regularised in the due course.

5. Such appointment was being done merely on the basis of

interview, that too just by notifying the same in the Notice Board of

the Devaswom and at times in some local dailies as well. This became

the order of the day, which was sought to be challenged from different

corners and ultimately, the matter came up for consideration before

this Court in W.P.(C) No.32138 of 2011.

6. After hearing both the sides, a learned Single Judge of this

Court made it clear point blank, that in so far as the appointment in

Guruvayoor Devaswam was public appointment, it was quite arbitrary

W.A. No. 481 of 2016 and
connected cases

: 4 :

and illegal on the part of the Devaswom to have appointed persons

without effecting wide publication in newspapers, but for the notice

put up on the Notice Board of the Devaswom. The Bench also

observed that the question of unemployment was acute in the State

and nobody could be expected to come to the office of the Devaswom

everyday for watching the Notice Board to know the availability of

any vacancy. The course pursued by the Devaswom was deprecated

and as per Ext.P4 judgment dated 27.06.2012, it was made clear,

whether the appointment was temporary or permanent, the

Devaswom had to notify the same giving wide publication, at least in

one of the newspapers. The fact remains that the said verdict has

become final, despite which it is not being honoured by the

Devaswom in letter and spirit as revealed from the course and

proceedings being discussed herein.

7. W.A. No. 481 of 2016 has been filed by the writ petitioner, on

being aggrieved of the verdict passed by the learned single Judge,

declining interference with regard to the prayer sought for to direct

the Devaswom to finalise the selection notified in the year 2001. In

fact, interference was declined by the learned Single Judge holding

that no such relief could be extended to the petitioner, who was

W.A. No. 481 of 2016 and
connected cases

: 5 :

simply sleeping over the issue for more than 10 years, till filing of the

writ petition in the year 2011 [W.P.(C) No.24917 of 2011].

8. W.P.(C) No.32574 of 2014 has been filed by the writ

petitioner, when the Guruvayoor Devaswom proceeded with steps to

regularise the service of temporary hands in a quite arbitrary manner

even by seeking to give permanent appointment to persons having

temporary service of just a few months or few years.

9. The resolution taken by the Board by way of Ext.P3 shows

the list of persons to be regularised and states that non-extension of

such benefit will amount to violation of human rights/fundamental

rights/such other rights of the employees concerned. This was

followed by Ext.P5 resolution dated 15.05.2015, whereby the list

came to be re-arranged, but still extending the benefit of

regularisation to temporary hands who were recruited even in the

year '2014'. The writ petition was amended to an appropriate extent,

seeking to interdict the above proceedings as highly arbitrary and

illegal.

10. Though the Devaswom took a resolution to regularise the

service of temporary hands having only two years' of service, on a

misconceived notion as to the dictum
laid down by
the Supreme Court

W.A. No. 481 of 2016 and
connected cases

: 6 :

in
Umadevi
's case [cited supra], the Government did not give

approval to the same and authorised the Devaswom only to regularise

the service of persons who had completed 10 years' of temporary

service.

It is brought on record that such persons have been

regularised in service as per the initial exercise of regularisation

carried out in the year 2010 in terms of the observations made by the

Apex Court in
Umadevi
's case [cited supra] (paragraph 53/44 in

SCC/AIR respectively). The persons who were left out by the

Government are the petitioners in some of the writ petitions; who

seek for a direction to have the resolution taken by the Devaswom to

be implemented and to interdict the order passed by the

Government/Commissioner to the extent they are aggrieved. Some

other persons have approached this Court with the grievance,

particularly pointing out that they were serving the Devaswom for

quite long, though as 'temporary hands' and that there was no

complaint with regard to their service in any manner, nor was there

any disciplinary proceedings. Still, on a fine morning, they were

ousted by another set of temporary employees to the choice of the

Devaswom and subsequently, the latter group is sought to be

regularised in service based on the resolution taken in this regard;

W.A. No. 481 of 2016 and
connected cases

: 7 :

which is stated as highly arbitrary and illegal and hence the

challenge.

All these matters have been tagged up together, being

connected with a common thread involving the question of

'regularisation of temporary hands' stated as in violation of the law

laid down by
the Supreme Court in
Umadevi
's case [cited supra]

and for not filling up the regular posts by way of proper selection after

wide publication.

11. Heard Mr. Sajeev Kumar K. Gopal - the learned counsel for

the petitioner in W.P.(C) No.32574 of 2014, Shri V. Krishna Menon -

the learned Standing Counsel for the Guruvayoor Devaswom, Shri K.

Jayakumar - the learned counsel for the party respondents in W.P.(C)

Nos. 19263 and 28743 of 2011 , Mr. Jaju Babu, the learned counsel

appearing for the party respondents in W.P.(C) Nos. 4628, 7899,

14871, 15060 of 2012 and 32574 of 2014, and the learned counsel

for other parties, besides the learned Government Pleader.

12. W.P.(C) No.32574 of 2014 is treated as the 'lead case'

and reference is made to the parties and proceedings as referred to in

the said case, except where it is separately mentioned with reference

to the context.

13. Way back on 16.02.2001, Ext.P1 notification was issued by

W.A. No. 481 of 2016 and
connected cases

: 8 :

the Guruvayoor Devaswom Managing Committee, inviting application

from eligible candidates to fill up 18 regular posts of Scavengers and

the future vacancies, which may arise in the due course. The last

date for submitting the application was on 15.03.2001 . As per Ext.P2,

the petitioner also applied for the regular selection. But no further

steps were pursued by the Devaswom, despite collecting huge

amounts from the applicants by way of application fee. At the same

time, temporary employees were being engaged to various posts

including the post of Scavenger and some of them were regularised,

on pick and choose basis, by the Devaswom. After a long wait, the

petitioner approached this Court by filing W.P.(C) No. 24917 of 2011

to direct the Devaswom to complete the process of regular selection

notified as per Ext.P1.

14. When the above writ petition was pending and though no

counter affidavit was filed by the Devaswom, a decision was taken by

the Managing Committee of the Devaswom vide resolution No.299

(Ext.P3) for regularising the temporary hands stating some 'strange

reasons' and authorising the sub-committee constituted in this regard

to submit a report within one month. This made the petitioner to

challenge Ext.P3 by way of W.P.(C) No. 32574 of 2014, wherein an

W.A. No. 481 of 2016 and
connected cases

: 9 :

interim order was passed on 04.12.2014 staying all further

proceedings pursuant to Ext.P3. The said interim order subsequently

came to be modified as per the order dated 20.02.2015 passed by a

learned Judge of this Court, whereby the Guruvayoor Devaswom was

permitted to proceed with further steps and directing to submit a

report before this Court.

15. It was thereafter that Ext. P5 resolution was passed by the

Devaswom Managing Committee on 15.05.2015 to regularise the

service of temporary employees w.e.f. 01.04.2015, subject to the

approval of the Government. As per the said resolution, the

Devaswom reiterated its earlier stand to have the temporary hands

regularized, lest, there should be "any violation of human

rights/fundamental rights of the temporary employees" and as if it

were in conformity with the law declared by the Apex Court in

Umadevi
's case [cited supra]. List of the persons who were stated

as qualified; list of persons who were not qualified; besides such other

list in respect of various posts giving particulars of the candidates

showing their date of birth, caste, qualification, age as on the date of

appointment, whether initial appointment was based on any

notification and interview and the vacancy position were also attached

W.A. No. 481 of 2016 and
connected cases

: 10 :

along with Ext. P5. Another important aspect to be noted is that,

earlier, in conformity with the decision taken by the Government to

leave the appointment of staff in the Travancore Devaswom Board and

Cochin Devaswom Board to be effected by the PSC, resolutions were

passed by the Guruvayoor Devaswom as well in this regard on

12.02.2007 and 03.10.2007. However, the Guruvayoor Devaswom

Managing Committee later took a 'U-turn' and resolved as per Ext. P5,

to cancel the earlier resolutions leaving appointment to the PSC [taken

on 10.02.2007 and 03.10.2007], which was decided to be informed to

the Government, Devaswom Secretary and also to the Devaswom

Commissioner. It is contended by the petitioners that hundreds of

undeserving candidates have been included in the list, intending them

to be regularized, also pointing out nobody has completed 10 years of

service as temporary service, but for a few. It is pointed out that

even persons having just 'nine months' of service as a temporary

hand are proposed to be regularized and in many cases, as revealed

from the entry in the last column of the list, there was no notification

or any selection process. With reference to list A forming part of

Ext.P5, it is stated by the learned counsel for the petitioners that, 272

persons are going to be regularized; among whom only 14 persons

W.A. No. 481 of 2016 and
connected cases

: 11 :

have got more than 10 years service. In respect of list B, in several

cases, there was no notification or any process of selection and many

persons are not having the requisite qualification or they are

overaged. In several cases, dates of appointment have not been

given, still, about 50 persons are going to be regularized from list B,

submits the learned counsel. This being the position, the

circumstances which led to the decision to regularize the service of the

temporary hands, considering the alleged continuance of service or

hardships is actually a non-existing ground and that the process and

procedure is nothing but arbitrary and illegal.

It is also pointed out

that, one time regularization for those who had already crossed 10

years of service as envisaged in
Umadevi
's case [cited supra] has

been effected by the Devaswom, vide Ext. R1 (b) resolution No. 69

dated 25.11.2010 and as such, no more similar exercise was liable to

be pursued, but for filling up the regular vacancies after wide publicity

and a proper selection process.

16. According to the learned standing counsel for the

Devaswom, 'one time regularization' [after passing the verdict in

Umadevi
's case (cited supra)] was effected as per Ext.R1(b)

Resolution No. 69 dated 25.11.2010. It is stated that, though Ext. P1

W.A. No. 481 of 2016 and
connected cases

: 12 :

notification was issued in the year 2001 for filling up the regular

vacancies, some litigations were pending before this Court as O.P.

Nos. 5177 of 1999 and 15437 of 1999, which were disposed of only in

the year 2005; by virtue of which, Ext. P1 could not be acted upon.

Shortly thereafter, Ordinance No. 5 dated 05.02.2007 was

promulgated by the Governor, leaving the recruitment in the

Devaswom Board [Cochin Devaswom Board and Travancore

Devaswom Board] to the PSC. It was soon thereafter that the

Guruvayoor Devaswom Board also passed a resolution as per Ext.
R1

(a) dated 10.02.2007 to leave the recruitment to the PSC, though it

was subsequently changed as per Ext. P5, in view of the reasons

stated therein. As per Ext. R1(b) Resolution No. 69 dated

25.11.2010, it was decided to regularize all persons having two years

or more temporary service, following the principles in the Umadevi's

case [cited supra]. But on forwarding the proceedings for approval,

the Commissioner gave sanction for regularisation of only those

persons who were having 10 years or more temporary service. Based

on the said approval, 18 persons were regularised in service. The

learned standing counsel further submits that regularisation of

temporary hands, who had completed 10 years of service was being

W.A. No. 481 of 2016 and
connected cases

: 13 :

pursued in the Devaswom at different points of time and till

06.11.2012, 124 temporary hands in different posts were regularised

with the approval of the Commissioner/Government. It is also

pointed out that 24 mahouts, who were serving the Devaswom on

temporary basis were regularised as per Resolution No. 24 dated

02.08.2014 and the Government gave approval in this regard on

31.10.2014. Since the Commissioner/Government had given

sanction/approval/regularisation of only those temporary hands, who

were having 10 years or more service, the remaining persons who

were included in the list prepared by the Devaswom [who were

beneficiary to the resolution taken in this regard] approached this

Court by filing different writ petitions, wherein Ext. R1(c) interim order

of stay was granted by this Court on 22.12.2011. It was in the said

circumstances, that the entire facts and figures were considered,

leading to resolution No. 299 dated 25.08.2014 [Ext. P3] deciding to

regularise the service of the temporary employees, in view of the

serious hardships pointed out by the employees. It was only at this

point of time, that the petitioner sought to challenge the said

proceedings [Ext. P3] by filing W.P.(C) No. 24917 of 2011, to cause

Ext. P1 notification/regular appointment to be finalized and on

W.A. No. 481 of 2016 and
connected cases

: 14 :

dismissal of the same [for being belated], he has come up in Writ

Appeal No. 481 of 2016. The learned standing counsel further

pointed out that the petitioner has not challenged the temporary

appointment effected by the Devaswom at any point of time and that,

as on the date of filing the proceedings, he is overaged, having

crossed the age of 45 years. The learned standing counsel submits

that the writ petition itself is not maintainable, as it is to be regarded

only as a 'public interest litigation' [being not qualified], which course

is not open in 'service matters' in view of the law declared by the Apex

Court/this Court. It is further pointed out that the regularisation

sought to be made by the Devaswom is a 'policy decision', which is not

liable to be intercepted and further that there is no violation of the

principles of natural justice or the provisions of the
Guruvayoor

Devaswom Act
or the
Guruvayoor Devaswom Employees Regulation

Act
and so also, there is no violation of
Articles 14
or 16 of the

Constitution of India.

17. W.P.(C) No. 4070 of 2015 has been filed by two persons,

who responded to the notification for filling up of five existing and the

future vacancies of the LDC, as per notification No. R1-720/2000

dated 27.10.2000. No further steps were taken by the Devaswom,

W.A. No. 481 of 2016 and
connected cases

: 15 :

despite the representation and reminders and the regular selection

was not done. The proceedings of the Devaswom regularising the

service of temporary hands in different posts have been produced and

marked as Exts. P5 to P11, as noted below:-

- Ext. P11 dated 25.11.2010 pertains to the

resolution No. 69 as to the regularisation of temporary

hands in different posts as "one time measure" pursuant to

Umadevi
's case [cited supra] [having 10 years of

temporary service or more].

- Ext. P10 dated 01.03.2011 is as to the

regularisation of 18 class IV/room boys etc. having 10 years

of temporary service.

- Ext. P7 Resolution No. 2 dated 02.07.2012 as to the

regularisation of 'Krishnattam' workers having 10 years of

temporary service.

- Ext. P6 dated 18.09.2012 resolution No. 125 - with

reference to regularisation of Scavengers having 10 years of

temporary service.

- Ext. P8 dated 14.06.2013 resolution No. 155 - as to

the regularisation of Sweepers/Scavengers having 10 years

W.A. No. 481 of 2016 and
connected cases

: 16 :

or more.

- Ext. P9 dated 11.06.2014 - as to the regularisation

of 'Sweepers/Scavengers/Vilakkuthuda' of 10 years of

temporary service or more.

- Ext. P5 dated 02.08.2014 - resolution No. 24 - with

reference to regularisation of 53 temporary mahouts.

18. From the above, it can be seen that regularisation of

temporary hands was a regular phenomenon and was being adopted

by the Devaswom as a method of recruitment, which is contrary to the

Statute/law declared by the Apex Court in
Umadevi
's case [cited

supra]. In fact, the Devaswom Commissioner had written to the

Administrator and the Guruvayoor Devaswom Managing Committee,

vide Ext. P12 dated 25.09.2013, as to the said undesirable activity

and directing the Guruvayoor Devaswom to go for direct recruitment

[in connection with the post of Scavenger]; also mentioning that

weightage could be given to those who were having 10 years of

temporary service or more. As per Ext.P13 order dated 03.11.2012

passed by the Commissioner, on regularisation of Scavengers who

were having 10 years of temporary service or more, various conditions

were incorporated and the Devaswom was alerted in this regard. The

W.A. No. 481 of 2016 and
connected cases

: 17 :

fact remains that, Exts. P12 and P13 were simply given a 'go-bye' and

the Guruvayoor Devaswom was continuing to engage temporary

hands and later, regularizing them in service as a matter of course,

without sufficient publication or due process of selection.

19. It is pointed out that by virtue of
S.19
of the Guruvayoor

Devaswom Act, 1978, appointment of officers and employees in the

Devaswom has to be effected by the Managing Committee. 10% of the

posts stand reserved for SC/ST. In fact, the selection has to be

conducted by the 'Sub Committee' appointed by the Managing

Committee, which is governed by the Regulations framed by the

Managing Committee stipulating the qualification, age, method of

selection etc. Regulation No.4 clearly says that the 'appointing

authority' is the Managing Committee, while Regulation No.5 stipulates

the method of recruitment, i.e., (a) by Direct recruitment ( by test or

interview or both); (b) by promotion and (c) in respect of temporary

posts (with liberty to the Managing Committee to decide the method).

The said provisions are extracted below for convenience of reference.

"Regulation No.4:

"4. Appointing Authority: The appointing

authority for all the posts in the Guruvayur Devaswom

W.A. No. 481 of 2016 and
connected cases

: 18 :

Service shall be the Managing Committee.

Regulation No.5.

"5. Method of Appointment: Appointment to

the following categories of posts in the Guruvayur

Devaswom Service shall be made as follows:

(a) Direct recruitment shall be made after due

publication of notices inviting applications. Eligible

persons shall be called for written test or interview

or both and selection made on the basis of merit.

(b) In the case of appointments by promotion

or direct recruitments, direct recruitment shall be

resorted to only if suitable qualified candidates for

promotion are not available

(c) The Managing Committee shall decide the

method of appointment in the case of temporary posts

as and when required

Provided that the posts of Executive Engineer,

Assistant Executive Engineer, Assistant Engineer,

Personal Assistant to administrator, Accounts Officer

and Manager shall be treated as selection category.

Appointment to the selection category shall be made

by the Managing Committee from among members

eligible for appointment to such category on the basis

of merit and ability, seniority being considered only

W.A. No. 481 of 2016 and
connected cases

: 19 :

where merit and ability are approximately equal.

xx xx xx

(d) Qualifications:- xx xx xx

(e) Qualification regarding age: (i) xx

xx xx

(ii) The Managing Committee shall prescribe

age limit in the case of temporary posts as and when

required."

20. The different posts are mentioned in the Schedule and all

the posts involved herein are direct recruitment posts [LDC at

Sl.No.62, Sweeper at Sl.No.77 and Scavenger at Sl.No.78]. Going by

the contents of the above provisions, conferring power of appointment

upon the 'Managing Committee' is obviously in respect of

regular/permanent appointment (in respect of direct recruitment and

promotion as well), besides the power of appointment to "temporary

posts". Appointment to a 'temporary post' is different from

'temporary appointment' in a regular post. 'Temporary appointment' in

a regular post is governed by Regulation No.17, which reads as

follows:

"17. Temporary appointment:- Where it is

necessary in the interest of the Devaswom owing to

an emergency which has arisen to fill immediately a

W.A. No. 481 of 2016 and
connected cases

: 20 :

vacancy in a post and there would be undue delay in

making such appointment in accordance with the

regulations, the Administrator may appoint a person

otherwise than in accordance with the regulations

temporarily after obtaining the approval of the

Managing Committee.

Provided that a person appointed under this

regulation shall not be allowed to continue in such

post for a period exceeding 180 days and that he

shall be paid the minimum pay in the time scale of pay

applicable to such post. "

21. From the above, it is quite clear that the appointing

authority to effect 'temporary appointment' is none other than the

Administrator, of course, with the approval of the Managing

Committee and it shall be for a maximum period of 180 days. In the

instant case, no pleading is raised by the Devswom that the

Administrator had sought for approval to effect 'temporary

appointment' at any time or that such appointments were effected by

the Administrator with the approval of the Managing Committee. The

said power under
Regulation 17
cannot be simply taken over by the

Managing Committee, merely stating that as per
Regulation 4
,

appointing authority is the Managing Committee, which, as mentioned

W.A. No. 481 of 2016 and
connected cases

: 21 :

above, is only in respect of filling up of 'regular posts', either by way

of direct recruitment or by way of promotion, apart from filling up the

'temporary posts' under Regulation No.5 (c) [where the Managing

Committee is at liberty to decide the method of appointment]. Since

the Managing Committee is bound by the Act and Regulations, there is

violation of the provisions of law in this regard. It is to be noted that

pendency of O.P.Nos. 5177 and 15437 of 1999 was never taken as a

bar or hurdle by the Guruvayoor Devaswom Managing Committee

while proceeding with the regular selection to the posts notified in the

year 2001, vide Ext.P1. There was no interim order as well. If this be

the position, why it was not pursued further, remains a matter of

mystery, which has not been properly substantiated to the satisfaction

of this Court, whereas the Devaswom was going all along with

temporary engagements and subsequent regularisation, which is

totally alien to the Scheme of the Act/Regulations. This is more so,

since the Devaswom, while passing Ext.P3/P5 Resolutions, laments

that they have no supporting staff and much hardships are being felt;

which is stated as a reason for regularisation of service of temporary

hands having even much less than one year of service. It was for the

Devaswom to have done sufficient home work as to the job

W.A. No. 481 of 2016 and
connected cases

: 22 :

requirements, vacancy position, number of retirements already

occurred and which were to occur in the near future and such other

aspects, taking appropriate steps for filling up the vacancies on

'regular basis'; instead of going on temporary appointment and

subsequent regularisation, confining the zone of consideration only to

a limited few, for want of sufficient publication and also for want of

non-intimation as to the chance for getting regulalrised, to make the

aspirants in the open market aware of the position.

22. In DBP Nos. 79 of 2014 and 60 of 2015, it is seen that an

interim order was passed by this Court on 06.07.2015 to report

vacancies in the Cochin Devaswom and Travancore Devaswom Board

to the Devaswom Recruitment Board. It appears that the

Guruvayoor Devaswom Managing Committee has wrongly understood

the scope of
Umadevi
's case (cited supra) and nurtured a

misconceived idea as to the scope of regularisation. Instead of

giving the benefit as a 'one time measure' to regularise the service of

persons having more than 10 years (which already has been effected

as per the resolution No.69 dated 25.11.2010) they were going, on

year after year, regularising the service of temporary hands on

completion of 10 years' of service as a 'routine process', even beyond

W.A. No. 481 of 2016 and
connected cases

: 23 :

all logical limits, when they resolved, as per Ext.P3, to regularise the

service of persons having even two years' continuous service as

temporary hands and even in respect of persons who were having less

than one year of service, as enlisted in Ext.P5.

23. It is pointed out that, pursuant to the Government decision

and subsequent Ordinance to leave the field of recruitment in the

Cochin Devaswom Board and the Travancore Devaswom Board to the

purview of PSC, the Guruvayoor Devaswom Managing Committee also

had requested the Government to suitably amend the
Guruvayoor

Devaswom Act and the Guruvayoor Devaswom Employees

Recruitment Act
, to have a similar course. It is stated that nothing

has transpired, despite reminders.

24.
The Travancore Cochin Hindu Religious Institutions

Act, 1950
was amended in the year 2008, facilitating the recruitment

through the PSC, which was varied in the year 2012 by a further

amendment, whereby mode of appointment through the PSC was

withdrawn. Though appointment through the PSC was facilitated

during 2008-2012, since the relevant/additional rules were not

framed, no appointment was effected through the PSC. It was much

later, that an Ordinance was issued in the year 2015, whereby Kerala

W.A. No. 481 of 2016 and
connected cases

: 24 :

Devaswom Recruitment Board was constituted by the Government in

respect of all the Devaswoms mentioned in the said Act. According to

the learned counsel for the Devaswom, the provisions of the

Guruvayoor Devaswom Act and the Guruvayoor Devaswom Employees

Regulations Act
have not been amended to the requisite extent, which

according to the petitioners, who challenge the proceedings of the

Devaswom is not necessary; in view of the relevant Ordinance issued

in 2014, followed by Act 16 of 2015, which clearly stipulates that the

same is applicable in respect of the Travancore Devaswom, Cochin

Devaswom, Malabar Devaswom, Koodalmanikkam Devaswom and also

Guruvayoor Devaswom and hence, there is no obscurity. There is a

contention that the
Guruvaryoor Devaswom Act
had obtained the

assent of the President and no amendment has been made so far to

cause the appointment to be made through the Kerala Devaswom

Recruitment Board constituted under the Kerala Devaswom

Recruitment Board Act, 2015 (Act 16 of 2015) brought into force

w.e.f. 01.03.2014, which cannot be applied in this case. (A copy of the

Act is produced with the statement filed by the said Recruitment

Board in W.P.(C) No. 30801 of 2016).

25. As mentioned already, when W.P.(C) No. 32574 of 2014

W.A. No. 481 of 2016 and
connected cases

: 25 :

came up for consideration before a learned Judge of this Court, it was

observed that the petitioner had approached this Court only belatedly

[with reference to the claim for regular appointment notified in 2001]

and hence that the prayers were not liable to be acted upon. It was

also observed in the said circumstance that it will only remain as

'PIL' and it was accordingly, that the matter was caused to be referred

to the Division Bench as per the order dated 15.10.2015. Before

passing the said order, there was an interim order of stay, which was

subsequently modified permitting the Devaswom to proceed with

steps for regularisation, except in the case of Scavenger, L.D. Clerk

and Lineman (involved in the cases pending consideration before this

Court). It is pointed out by the learned Standing Counsel for the

Devaswom that, though temporary vacancies were notified in 2006,

2007, 2013 and 2014 in the local dailies, the petitioner did not make

any application. It is however conceded that such notices were being

published mostly in the local notice Board, as the temporary

engagement was merely from locals, who alone would be available for

such engagement. It is further pointed out that, although the interim

order was modified as per order dated 03.08.2015 permitting the

Devaswom to proceed with the selection in respect of other posts

W.A. No. 481 of 2016 and
connected cases

: 26 :

[except the posts of Scavenger, LDC and Lineman], it was actually not

proceeded with, but kept in abeyance. There is inordinate delay in

approaching this Court and there is no whisper as to what the

petitioners were doing for the past 13 years and hence they cannot

question the regularisation now.

26. The learned Standing Counsel for the Recruitment Board

submits with reference to
Section 2(b)
of Act 16 of 2015 , brought

into effect from 01.03.2014 [Ext.R5(g) in W.P.(C)No. 30801 of 2016]

that the Devaswom Board means the Cochin Devaswom Board,

Travancore Devaswom Board, Malabar Devaswom Board, Guruvayoor

Devaswom Board and Koodalmanikkam Devaswom.
Section 9
deals

with the power and functions of the Board and hence after the said

enactment, all appointments stand vested with the Devaswom

Recruitment Board and nobody else. Since the Act had come into

force with effect from 01.03.2014, Ext.R5 (h) decision dated

25.08.2014, Ext.R5(i) decision dated 02.08.2014 and Ext.R5(j)

decision dated 15.05.2015 (having passed after commencement of the

Act) are not correct or sustainable in law.

27. The learned counsel for the petitioner in W.P.(C) No. 15060

of 2012 points out that the first petitioner is having more than 10

W.A. No. 481 of 2016 and
connected cases

: 27 :

years' of temporary service and was working in the post of 'Ayah' in

the school belonging to Devaswom. Despite the better rights and

credentials, she was simply sent out and somebody else of the choice

of the Managing Committee was appointed as a temporary hand in

2012. When the course pursued by the Devaswom was challenged,

with reference to the process of selection for temporary engagement,

the said petitioner was also permitted to participate in the interview,

as per the oral instruction given by this Court in this regard. Though

she participated in the process, she was not selected and undue

favours were extended to respondents 6 and 7, who were appointed

on temporary basis and are now sought to be regularised. In the said

circumstance, the writ petition was amended, also challenging the

appointment of the respondents 6 and 7. Even at the time of taking

Resolution No.69 by the Guruvaryoor Devaswom vide Ext.P14,

deciding to regularise the service of the persons having 'two years'

or more, the petitioners were still omitted to be included in the list and

hence the prayer to include them in Ext.P14. It is also pointed out

that, one Smt. Ajitha A.S., who had also applied along with the

second petitioner in the year 2007 was included in the list, while the

petitioner came to be avoided, for no reason at all. There is a further

W.A. No. 481 of 2016 and
connected cases

: 28 :

contention that some of the teachers working in the school were

terminated from service in 2006-07, when they approached this Court

by filing writ petitions, whereupon their claim was directed to be

considered. Pursuant to this, they were decided to be included and

accordingly, they were reinstated and subsequently regularised in

service (Ext.P16). Still, the petitioners are made to wait outside,

which is stated as an instance of arbitrary exercise; more so when

they came to be excluded even as per proceedings dated 15.05.2015,

while deciding to regularise the service of respondents 6 and 7.

28. With reference to the pleading in W.P.(C)No. 2008 of 2016

(where the post involved is LDC), the version of the Administrator of

Guruvayoor Devaswom is that the employees concerned do not have

the minimum service of 10 years and that the decision of the

Managing Committee is bad. The case of the Devaswom is that the

Administrator of the Devaswom has no power to say so and that the

Administrator has only to implement the decision taken by the

Devaswom. This is sought to be controverted by referring to the

Guruvayoor Devaswom Rules, 1980, to the effect that the duty cast

upon the Administrator is not to implement each and every decision

of the Managing Committee passed contrary to law, but implement

W.A. No. 481 of 2016 and
connected cases

: 29 :

only the 'lawful decision' taken by the Managing Committee. There is

a contention for the Devaswom that it is not for the Administrator to

decide what is lawful and what is not; and that the order of the

Administrator stands suspended by the Managing Committee, as on

date. It is to be noted that, no counter affidavit has been filed by the

Administrator, who is a Sub Collector nominated by the Government.

Counter affidavit has been filed only by the Chairman of the

Guruvayoor Devaswom Managing Committee; presumably in view of

the apparent conflict of opinion between the Administrator and the

Committee.

29. Sri. Jayakumar, the learned senior counsel appearing for the

petitioners in W.P.(C) Nos. 19263 of 2011 and 28743 of 2011

[Scavengers and Linemen respectively] submits that the main prayer

is to implement the resolution No. 69 taken by the Managing

Committee of the Devaswom vide Ext.P6 dated 25.11.2010 as such.

It is stated that the said resolution was taken to regularise the

temporary hands having 'two years' of service, which was based on a

'legal opinion' obtained in this regard and as such, there is nothing

wrong in it. Whether the dictum
laid down by
the Constitution Bench

of the Apex Court in
Umadevi
's case [cited supra] is to be understood

W.A. No. 481 of 2016 and
connected cases

: 30 :

based on such legal opinion obtained, if it be contrary [howsoever

high, the status of the opinion-giver be] is not answered by the

Devaswom or the learned counsel. It is stated that, the writ petitions

came to be filed, when the temporary employees were sought to be

replaced by another set of temporary employees. Later, election was

declared to the General Assembly in the State and by virtue of the

change in Government, the Managing Committee of the Guruvayoor

Devaswom also got changed in the due course. It is conceded that

no regular appointment was being effected in the Guruvayoor

Devaswom from 2001 onwards. With regard to the subsequent

course and events, the learned senior counsel pointed out that Ext. P1

resolution passed by the Board/Managing Committee to regularise the

service of the persons having "two years" of service is a 'policy

decision', which ought not to have been modified or watered down by

the Government/Devaswom Commissioner, for want of any power in

this regard. The Deputy Commissioner is never placed above the

Managing Committee and once the schedule is created and approved,

the power of appointment is always with the Managing Committee, in

terms of
Section 19
of the Act, which does not stipulate that assent of

the Commissioner is required for effecting appointment. The Statute

W.A. No. 481 of 2016 and
connected cases

: 31 :

only says that, if any 'change in the schedule' is required, it shall only

be with the approval of the Commissioner. This Court is of the view

that the jurisdiction being exercised by this Court in connection with

the affairs of the Temple is 'parens patriae jurisdiction', Hindu Deity

being a perpetual minor, care has to be taken to see that the action

taken by Managing Committee and in turn by the Devaswom, is

transparent in all respects and in conformity with the statutory

provisions and the law declared by the Apex Court/this Court on the

point.

30. A reference to Regulation No. 17 of the Guruvayoor

Devaswom Employees Regulations 1983 may be useful in this context,

which reads as follows :

"Temporary appointment :- Where it is necessary

in the interest of the Devaswom owing to an emergency

which has arisen to fill immediately a vacancy in a post and

there would be undue delay in making such appointment in

accordance with the regulations, the Administrator may

appoint a person otherwise than in accordance with the

regulations of temporarily after obtaining the approval of

the Managing Committee.

Provided that a person appointed under this

regulation shall not be allowed to continue in such post of a

W.A. No. 481 of 2016 and
connected cases

: 32 :

period of exceeding 180 days and that he shall be paid the

minimum pay in the time scale of pay applicable to such

post."

From the above, it is clear that such appointment by agreement under

the special circumstances mentioned therein is only to fill the gap in

view of the lacunae, for want of special provision to be brought about

in consistency with the regulations as to the conditions of service, pay

and allowances, discipline and conduct. A person appointed under the

said regulation shall not be regarded as a regular member of the

Guruvayoor Devaswom Service and shall not be entitled by reason of

such engagement for appointment, giving any preferential claim. As it

stands so, the appointment of a temporary hand, separately dealt with

under Regulation No. 17, is to be effected by the 'Administrator' with

approval of the Managing Committee; which stands on a different

footing and such power cannot be assumed by the 'Managing

Committee' as an alternate method of recruitment, in exercise of

power of the Committee under the Act or Regulations which deals with

appointment to the 'permanent cadre' or appointment to any

'temporary posts' [not 'temporary service' in a permanent post].

31. A contention has been put forth by the learned senior

counsel that the decision rendered by the Constitution Bench in

W.A. No. 481 of 2016 and
connected cases

: 33 :

Umadevi
's case was considered in the subsequent decision rendered

by 'two member' Bench of the Apex Court in
Jodhpur Vidyut Vitran

Nigam Ltd. Vs. Nanu Ram and Others
[(2006) 12 SCC 494],

where regularisation of service of persons having two years was

sought for and it was approved by the Apex Court. With reference to

the directions given by the Apex Court in some cases to formulate a

Scheme for regularization, the learned counsel submits that the said

principle can be applied in the present case as well. The said

submission does not appear to be attractive as the power vested with

the Apex Court under
Article 142
of the Constitution of India to pass

appropriate orders to meet the ends of justice is not available with this

Court, in exercise of jurisdiction under
Article 226
of the Constitution

of India.

32. The learned Govt. Pleader submits that it is not correct on

the part of the Guruvayoor Devaswom Managing Committee to

contend that the Government and the Commissioner do not have any

say in the affairs of the Devaswom. The position is evident from

various provisions in the Act [
The Guruvayoor Devaswom Act
], as

noted below:

-
Section 4(d)
and (e), showing the constitution of the

W.A. No. 481 of 2016 and
connected cases

: 34 :

Managing Committee as nominated by the Government from

the Hindus among the Council of Ministers.

-
Section 5(2)
, as to cessation of membership of a

member on his resignation, to be accepted by the Government.

-
Section 5(3)
, conferring the power of the Government

to order removal from the office of the membership referred

to in sub-
section 3(e)
.

-
Section 6
, as to the power of the Government dealing

with dissolution and supersession of the Committee

-
Section 11
, Restriction on the alienation of Devaswom

Property unless sanctioned by the Commissioner.

-
Section 12
, Limitation on the borrowing and lending

powers of the Committee unless sanctioned by the

Commissioner.

-
Section 13
, Duty of the Committee to submit report

to the Commissioner on the administration of the affairs of

the Devaswom .

-
Section 14
, Duty of the Managing Committee to appoint

an officer of the Government, not below the rank of Deputy

Collector, to be the Administrator of the Devaswom

-
Section 18(2)
, as to the power of approval of the

establishment schedule by the Commissioner

-
Section 20
, as to the power of the Commissioner to

direct the Committee with regard to fixation of standard

scales of expenditure .

W.A. No. 481 of 2016 and
connected cases

: 35 :

-
Section 21
, as to the power of the Commissioner to

make alterations, omissions or additions in the budget .

-
Section 22
, Restriction that no alteration shall be made

in the working balance without the consent of the

Commissioner (in relation to supplementary budget. )

-
Section 26
, Power vested with the Commissioner with

regard to rectification of defects disclosed in the audit and

order of discharge against the Committee.

- Section 33, Conferring power on the Government to call

for records and pass orders , if the

proceedings/orders//decisions taken by the Committee are in

violation of the provisions of the Act or against the interest

of the Devaswom and to have it modified or annulled or

reversed or re-considered .

-
Section 36
, conferring power to remove the difficulties

in giving effect to the Act with the Government.'

-
Section 38
, the rule making power vested with the

Government to carry out the purpose of the Act.

-
Section 39
: The power of the Government to

approve/disapprove/modify the regulations formulated by the

Managing Committee.

Inspite of the above clear provisions and despite the specific

instructions issued by the Government to the Managing Committee,

the Guruvayoor Devaswom was continuing with temporary

W.A. No. 481 of 2016 and
connected cases

: 36 :

appointments and subsequent regularisation as a method of

recruitment, which is contrary to law and hence liable to be

intercepted.

33. In reply to submission made from the part of the Standing

Counsel of the Devaswom, particularly as to the 'locus standi' of the

petitioners in W.P(C) No. 32574 of 2014 and W.P.(C) No. 4070 of

2015, as referred to in the reference order dated 15.10.2015, that no

Public Interest Litigation (PIL) will lie in a 'service matter', it is stated

that a writ petition taken up for consideration as 'PIL' is not a service

matter at all. It is with regard to the 'process of recruitment' being

pursued by the Guruvayoor Devaswom, contrary to the relevant

provisions of law and also declaration made by this Court as per

Ext.P4 judgment in W.P.(C) No.32138 of 2011, that the writ petition

has been instituted. It is stated that the law declared by the Division

Bench of this Court in
Jaleel P.P. vs. P.K. Muralikrishnan and

others
[2014 (1) KHC 672] with regard to scope of 'PIL' in service

matter is not applicable to the case in hand. That apart, presently,

the individual grievance of the said petitioner is separately projected

and is pending consideration. It is also pointed out that, unless and

until a notification is issued by the Devaswom prescribing the

W.A. No. 481 of 2016 and
connected cases

: 37 :

qualification, age and such other requirements, it does not fit into the

mouth of the Devaswom to contend that the petitioner is not

qualified or over-aged and hence cannot file any case before this

Court for appointment and hence the writ petition will remain only as

'PIL'. It is only because of the wrong exercise done by the

Devaswom, that the 'opportunity to be considered for selection' is

denied to the petitioner; that too, after collecting the application fee

from several applicants, including the petitioner, which is still retained

at the hands of the Devaswom, who has made 'unlalwful enrichment'

at the cost of the poor and hapless unemployed youth. The learned

counsel adds that no notification was ever issued after 2001 for filling

up the regular vacancies and even in respect of temporary hands, only

sparingly was it notified in newspapers having circulation in local

area, that too without disclosing the necessary details or as to the

chance to get regularised in the due course. This is not a proper

publication at all and not liable to be acted upon.

34. According to Mr. K.K. Mohammed Ravuf, the learned

counsel appearing for the petitioner in W.P.(C) No. 29442 of 2012, the

petitioner, who applied for the post of LDC had undergone all the

regular steps for selection, though there was no written test, but for

W.A. No. 481 of 2016 and
connected cases

: 38 :

interview. Such engagement was against the sanctioned posts and

it is contended with reference to '
Regulation 5
', that though it was a

regular selection, they were appointed only on temporary basis and

hence the dictum in
Umadevi
's case [cited supra] will not apply. But

in response to the query raised by this Court, the learned counsel

concedes that the notification inviting applications was never for any

regular selection but for temporary engagement and that there was

no indication that there was a chance to have their service

regularised. As it stands so, the so called selection process stated as

undergone by the petitioners in connection with the appointment as

'temporary hand' in different capacities, is not liable to be termed or

accepted as a regular process of selection, more so when no publicity

was there all over Kerala, notifying the posts in question and no

opportunity was given to all eligible persons to participate in the

process; besides the fact that persons were picked up merely on the

basis of an interview and that alone.

35. With reference to the claim and status of the petitioners in

W.P.(C) No.4628 of 2012 (Scheduled Caste candidate) and W.P.(C)

21928 of 2012 (open candidate), it is stated that they had applied for

the posts of Malayalam Typist (temporary engagement). It is pointed

W.A. No. 481 of 2016 and
connected cases

: 39 :

out with reference to the materials procured and produced invoking

the provisions of
RTI Act
in the case of the petitioner in W.P.(C) No.

21998 of 2012, that there was only 'one mistake' in the total 56

words typed; whereas in the case of the selected person, as revealed

from Ext.P3(c), there were '12 mistakes' out of 56 words. Still, the

petitioner was simply pushed down and an undeserving hand with

lesser merit has been selected which reveals the mode of selection

pursued by the Managing Committee. Hence it is contended that the

selected persons have to be replaced by appointing the petitioners,

having more merit.

36. This is sought to be answered by the learned Counsel for

the respondents 3 and 4 and also by the learned Standing Counsel for

the Devaswom, stating that, though there is no dispute with regard to

the factual position as to the Malayalam typing test, proficiency in

English was also considered, where the petitioners' position was found

below the respondents 3 and 4. The learned counsel for the

petitioners points out that, in respect of the post of Malayalam Typist,

the test could only be in Malayalam Typing and nowhere was any

English Typing test contemplated and hence there is absolutely no

rationale in selecting the respondents 3 and 4, the less meritorious

W.A. No. 481 of 2016 and
connected cases

: 40 :

candidates; based on any English Typing Test.

37. With regard to the scope of the verdict passed by the

Constitution Bench of the Apex Court in
Umadevi
's case [cited

supra], it is to be noted that the law stands declared in crystal clear

terms holding that public appointment cannot be permitted to be

made contrary to the relevant provisions of law and without giving a

chance to eligible hands to participate in the process of selection.

Regularization of temporary hands engaged against the sanctioned

posts [where appointment was not illegal but irregular] was ordered,

subject to satisfaction of 10 years of service as on that date, as a 'one

time measure', which was specifically ordered not to be repeated.

However, an exception was sought to be drawn by a two member

Bench of the Supreme Court extending the benefits to workers who

actually did not come within the purview of the observations made by

the Apex Court in
Umadevi
's case, as per the decision rendered in

U.P. State Electricity Board Vs. Pooran Chandra Pandey

[(2007) 11 SCC 92], virtually watering down the binding effect of

the
Umadevi
's case.

This came to be considered by a Larger

Bench of the Apex Court in Official Liquidator Vs. Dayanand and

Others [(2008) 10 SCC 1] where the course pursued by the 'two

W.A. No. 481 of 2016 and
connected cases

: 41 :

member Bench' was deprecated and it was made clear that the

observations in the said verdict could only be considered as a 'obiter'

and shall never have any binding value on the High Courts, Tribunal

and other judicial fora, nor shall it be made the basis for bypassing the

principles laid down in
Umadevi
's case [cited supra].

38. The genesis of law in this regard was discussed by a '3

member Bench' of the Apex Court in Renu & Ors. Vs. District &

Sessions Judge, Tis Hazari and Anr. [2014 AIR SC 2175 =

(2014) 14 SCC 40], where the issue was in relation to the

recruitment of staff in the High Court and Subordinate Court of Delhi.

The observations and directions given by the Apex Court as contained

in paragraph 35 are relevant and hence reproduced below for

convenience of reference :

In view of the above, the appeal stands disposed of

with the following directions:

i) All High Courts are requested to re-examine the statutory

rules dealing with the appointment of staff in the High

Court as well as in the subordinate courts and in case any of

the rule is not in conformity and consonance with the

provisions of
Articles 14
and
of the Constitution, the

same may be modified.

ii) To fill up any vacancy for any post either in the High

W.A. No. 481 of 2016 and
connected cases

: 42 :

Court or in courts subordinate to the High Court, in strict

compliance of the statutory rules so made. In case any

appointment is made in contravention of the statutory rules,

the appointment would be void ab-initio irrespective of any

class of the post or the person occupying it.

iii) The post shall be filled up by issuing the advertisement

in at least two newspapers and one of which must be in

vernacular language having wide circulation in the respective

State. In addition thereto, the names may be requisitioned

from the local employment exchange and the vacancies may

be advertised byother modes also e.g. Employment News,

etc. Any vacancy filled up without advertising as prescribed

hereinabove, shall be void ab-initio and would remain

unenforceable and inexecutable except such appointments

which are permissible to be filled up without advertisement,

e.g., appointment on compassionate grounds as per the rules

applicable. Before any appointment is made, the eligibility as

well as suitability of all candidates should be

screened/tested while adhering to the reservation policy

adopted by the State, etc., if any.

iv) Each High Court may examine and decide within six

months from today as to whether it is desirable to have

centralised selection of candidates for the courts

subordinate to the respective High Court and if it finds it

desirable, may formulate the rules to carry out that purpose

W.A. No. 481 of 2016 and
connected cases

: 43 :

either for the State or on Zonal or

Divisional basis.

v) The High Court concerned or the subordinate court as the

case may be, shall undertake the exercise of recruitment on

a regular basis at least once a year for existing vacancies or

vacancies that are likely to occur within the said period, so

that the vacancies are filled up timely, and thereby avoiding

any inconvenience or shortage of staff as it will also control

the menace of ad-hocism.

39. It is relevant to note that the entire case law as on date was

discussed by the Apex Court and much reliance was placed upon the

verdict passed by the Constitution Bench in
Umadevi
's case [cited

supra]. The Apex Court also observed that, even with regard to the

power entrusted with the Chief Justice under
Article 229 (1)
of the

Constitution of India, it was subject to
Article 16 (1)
, which guarantees

equality of opportunity for all citizens in the matters relating to

employment. The Apex Court also made it clear that, in making

appointment or regulating other service conditions of staff of the High

Court, power exercised by the Chief Justice was an administrative

power supported by the constitutional backing and as such, the

recruitment effected shall be transparent in all respects.
Reference

was also made to the verdict of the Apex Court in H.C. Puttaswamy

W.A. No. 481 of 2016 and
connected cases

: 44 :

& Ors. Vs. The Hon'ble Chief Justice of Karnataka High Court,

Bangalore & Prs. [AIR 1991 SC 295] dealing with similar situation

interpreting the scope of
Article 229 (2)
of the Constitution of India

and the position prevailing in the State of Karnataka, whereby it was

held that the appointment made by the Chief Justice of the High Court

without advertising the vacancies was invalid, being violative of

Articles 14
and
16 (1)
of the Constitution of India.

40. It will be worthwhile to make a reference to other decisions

as well, which made the Apex Court to give the specific directions as

extracted above. The Apex Court had occasion to consider the issue

of 'back door entries' in public appointments in
State of U.P. & Ors.

Vs. U.P. State Law Officers Association and Ors.
[AIR 1994 SC

1654], when it was observed that the method of appointment was not

calculated to ensure that the meritorious persons alone will always be

appointed and that the appointment made will not be on any

consideration other than merit. According to the Apex Court, in the

absence of guidelines, appointment may be made on political or

personal consideration and be arbitrary, which led to the declaration

that those who came by the back door, have to go by the same door

and that there need be no legal anxiety to save them.

W.A. No. 481 of 2016 and
connected cases

: 45 :

41. In the instant case, going by the contents of Exts. P3 and

P5 resolutions taken by the Board and also as revealed from the

pleadings, in many cases, no proper notification was issued giving

wide publication before the appointment of persons as temporary

hands. In several instances, no manner of selection was indicated.

In some cases, publication was made only in the 'Notice Board of the

Devaswom'; while in some other cases, it was given in some

inconspicuous manner, in some local dailies. There is no case for the

Devaswom that they had given wide publicity, inviting applications

from all the eligible hands in the State or that it was made clear in the

advertisement that the persons selected [admittedly on the basis of

interview alone] will get chance to get regularised in the due course.

The importance of proper advertisement with sufficient publicity was

considered by the Apex Court, pointing out the important requirement

of public appointment to be with transparency and holding that the

advertisement must specify the number of posts available for

selection/recruitment; qualification and eligibility criteria for such

posts; schedule of recruitment process to be published, with certainty

and clarity. It was also mentioned that the advertisement should

specify the rule under which selection is to be made. The manner of

W.A. No. 481 of 2016 and
connected cases

: 46 :

inviting applications by putting up notice on the Notice Board was

deprecated by the Apex Court in
State of Orissa & Anr. Vs. Mamata

Mohanty
[2011 (3) SCC 436], holding that vacancies must be in

advance disseminating the information in reasonable manner in public

domain ensuring maximum participation of all eligible candidates, thus

ensuring right of equal opportunity. The relevant portion of the

observation as contained in paragraph 36 is extracted below :

"36. Therefore, it is a settled legal proposition that

no person can be appointed even on a temporary or ad hoc

basis without inviting applications from all eligible

candidates. If any appointment is made by merely inviting

names from the Employment Exchange or putting a note on

the Notice Board etc. that will not meet the requirement of

Articles 14
and
of the Constitution. Such a course

violates the mandates of
Articles 14
and
of the

Constitution of India as it deprives the candidates who are

eligible for the post, from being considered. A person

employed in violation of these provisions is not entitled to

any relief including salary. For a valid and legal appointment

mandatory compliance of the said Constitutional

requirement is to be fulfilled. The equality clause enshrined

in
Article 16
requires that every such appointment be made

by an open advertisement as to enable all eligible persons to

W.A. No. 481 of 2016 and
connected cases

: 47 :

compete on merit."

42. Various principles to be followed in the matter of public

appointment have been codified by the Apex Court in M.P. State Co-

op
Bank Ltd., Bhopal Vs. Nanuram Yadav & Ors.
[(2007) 8 SCC

264], as contained in paragraph 24, which is extracted below for

convenience of reference :

24. It is clear that in the matter of public appointments,

the following principles are to be followed :

1. The appointments made without following the

appropriate procedure under the Rules/Government

Circulars and without advertisement or inviting applications

from the open market would amount to breach of Arts. 14

and 16 of the Constitution of India.

2. Regularisation cannot be a mode of appointment.

3. An appointment made in violation of the mandatory

provisions of the statute and in particular, ignoring the

minimum educational qualification and other essential

qualification would be wholly illegal. Such illegality cannot

be cured by taking recourse to regularization.

4. Those who come by back door should go through

that door.

5. No regularization is permissible in exercise of the

statutory power conferred under
Art. 162
of the

Constitution of India if the appointments have been made in

W.A. No. 481 of 2016 and
connected cases

: 48 :

contravention of the statutory Rules.

6. The Court should not exercise its jurisdiction on

misplaced sympathy.

7. If the mischief played so widespread and all

pervasive, affecting the result, so as to make it difficult to

pick out the persons who have been unlawfully benefited or

wrongfully deprived of their selection, it will neither be

possible nor necessary to issue individual show -cause notice

to each selectee. The only way out would be to cancel the

whole selection.

8. When the entire selection is stinking, conceived in

fraud and delivered in deceit, individual innocence has no

place and the entire selection has to be set aside.

43. Deprecating the arbitrary process of appointment, the Apex

Court held in [2014 AIR SC 2175 = (2014) 14 SCC 40] [cited

supra] that if any such appointment is made, it can be challenged

before a Court of law, explaining the scope of the writ of 'Quo

Warranto'. The observation made by the Apex Court in paragraph 15

is relevant, which is extracted below :

15. Where any such appointments are made, they can

be challenged in the court of law. The quo warranto

proceeding affords a judicial remedy by which any person,

who holds an independent substantive public office or

W.A. No. 481 of 2016 and
connected cases

: 49 :

franchise or liberty, is called upon to show by what right he

holds the said office, franchise or liberty, so that his title

to it may be duly determined, and in case the finding is that

the holder of the office has no title, he would be ousted

from that office by judicial order. In other words, the

procedure of quo warranto gives the Judiciary a weapon to

control the Executive from making appointment to public

office against law and to protect a citizen from being

deprived of public office to which he has a right. These

proceedings also tend to protect the public from usurpers of

public office who might be allowed to continue either with

the connivance of the Executive or by reason of its apathy.

It will, thus, be seen that before a person can effectively

claim a writ of quo warranto, he has to satisfy the Court

that the office in question is a public office and is held by a

usurper without legal authority, and that inevitably would

lead to an enquiry as to whether the appointment of the

alleged usurper has been made in accordance with law or not.

For issuance of writ of quo warranto, the Court has to

satisfy that the appointment is contrary to the statutory

rules and the person holding the post has no right to hold it.

(Vide: The University of Mysore and Anr. v. C.D. Govinda Rao

and Anr., AIR 1965 SC 491; Shri Kumar Padma Prasad v.

Union of India and Ors., AIR 1992 SC 1213 : (1992 AIR SCW

1093); B.R. Kapur v. State of Tamil Nadu and Anr., AIR 2001

W.A. No. 481 of 2016 and
connected cases

: 50 :

SC 3435 : (2001 AIR SCW 3720); The Mor Modern Co-

operative
Transport Society Ltd. v. Financial Commissioner

and Secretary to Govt., Haryana and Anr.
, AIR 2002 SC

2513 : (2002 AIR SCW 2826);
Arun Singh v. State of Bihar

and Ors.
, AIR 2006 SC 1413 : (2006 AIR SCW 1306);
Hari

Bansh Lal v. Sahodar Prasad Mahto and Ors.
, AIR 2010 SC

3515 : (2010 AIR SCW 5567); and
Central Electricity Supply

Utility of Odisha v. Dhobei Sahoo and Ors.
, (2014) 1 SCC 161

: (AIR 2004 SC 246 : 2013 AIR SCW 6339)).

From the above, it is clear that when the very 'process of

recruitment' made contrary to the relevant provisions of law and

binding precedents is under challenge, it cannot be branded as a

simple 'service matter', or the party who attempts to set the law in

motion cannot be non-suited saying that he does not have any 'locus

standi' or with reference to the principle that no public interest

litigation can be entertained in service matter. The nature of

grievance projected herein stands on a clear footing, dealing with the

'process of recruitment' and as such, the contentions raised by the

learned standing for the Devaswom and also other parties concerned,

questioning the maintainability of the writ petitions challenging the

'process of recruitment' made by the Devaswom is only to be repelled.

It is ordered accordingly.

W.A. No. 481 of 2016 and
connected cases

: 51 :

44. The latest of the judgments governing the field of

regularization as rendered by the Apex Court has been reported in

(2017) 3 SCC 410 [State of Jammu and Kashmir and Others Vs.

District Bar Association, Bandipora].
The law evolved so far,

particularly, with reference to the mandate of the decision rendered by

the Constitution Bench in
Umadevi
's case and the principles
laid

down in

Renu Vs. District and Sessions Judge
[(2014) 14 SCC

40 = 2014 AIR SC 2175] were reiterated and it was held that

regularisation could not be ordered as a matter of course. It was a

case where daily-rated employees were engaged in connection with

the affairs of the judiciary, including construction of the court complex

in the State of Jammu and Kashmir. The basic issue projected before

the High Court of Jammu and Kashmir in a 'Public Interest Litigation'

preferred by the District Bar Association, Bandipora, was for a

direction to transfer land, which was stated as to have earmarked for

the construction of the District Court complex or to provide a suitable

site. During the course of hearing of the said Public Interest

Litigation, it was brought to the notice of the Court that an application

had been filed by the daily-rated workers engaged in the High Court of

Sri Nagar, claiming regularization. An interim order was passed on

W.A. No. 481 of 2016 and
connected cases

: 52 :

07.10.2015, observing that the respondent State was duty bound to

consider the claim of the daily-rated employees as a 'one time

exception' and regularize their service. The Secretary of the

Department concerned was directed to file a status report about this

aspect before the next date of hearing. The special leave petition

filed by the State against the said order came to be dismissed by the

Apex Court. However, the Division Bench of the Jammu and Kashmir

High Court issued a further direction, in which it was noted that the

State Government had, over a period of time, failed to create the

requisite number of posts for the State judiciary and that in order to

ensure that the work of the Court was not hampered, arrangements

were to be made to engage persons on daily-wage rate. The High

Court further observed that the State Government was duty-bound to

create an equal number of posts for the absorption of daily-rated

employees at the earliest. It was thereafter, that the matter was

finalized directing the State Government of Jammu and Kashmir to

regularize the service of 280 daily rated workers, which came to be

challenged before the Apex Court.

After referring to the law evolved

by the Apex Court at different points of time and making a reference

to
Umadevi
's Case and Renu's case, among such other cases as

W.A. No. 481 of 2016 and
connected cases

: 53 :

mentioned above, the principles were reiterated and it was held that

the High Court was not justified in directing the State to regularise the

service of the 209 daily rated employees as a one time measure,

without properly considering the procedure, precedents, rules and

regulations regarding regularization. The Bench also observed that

such regularization, if at all justified [involving ireregular appointment

and not illegal appointment] could be made, only if the employees

concerned had completed 10 years of service or more in a duly

sanctioned post, without the benefit of protection of any interim order

of any Court or Tribunal and further that, such engagement should not

have been illegal, though irregular. After stetting aside the verdict

passed by the High Court of Jammu and Kashmir, the matter was

remanded to the High Court for fresh consideration in the light of the

observations made and also in the light of the mandate laid down by

the Apex Court in Umadevi's case/Renu's case and such other

binding precedents. It will be worthwhile to go through paragraph 29

of the verdict, which hence is extracted below :

"29. We have adverted to the above grievances in order to

emphasise that there is substantial merit in the submission

that the High Court proceeded to issue directions for

regularisation without considering either the legal position

W.A. No. 481 of 2016 and
connected cases

: 54 :

enunciated in the judgments of this Court referred to

above and without considering the prevailing rules and

regulations on the subject. The High Court has observed

in its order dated 1-12-2015 that over a considerable

period of time the State Government has not created the

required number of posts for the State judiciary as a

result of which work has been hampered. According to the

High Court opined that these workers have been rendering

work which should have been assigned to persons appointed

on a regular basis against sanctioned posts. It is

unfortunate, in our view, that the State Government has

allowed the requirements of the State judiciary to be

neglected over such a long period of time. The need to

facilitate the proper functioning of the High Court and the

district judiciary is a constitutional necessity which

imposes a non-negotiable obligation on the State

Government to create an adequate numbers of posts and to

provide sufficient infrastructure. The State Government

is to blame for the unfortunate situation which has

resulted in a large number of persons being recruited on a

daily-wage basis."

45. From the above, it is quite clear that the course pursued by

the respondent Devaswom, attempting to regularise the service of

temporary employees, who came to be appointed without much

W.A. No. 481 of 2016 and
connected cases

: 55 :

publicity and without giving chance to all the interested/eligible parties

to have participated in the process of selection, under the cover/guise

of extension of benefits flowing from paragraph 53 of the Umadevi's

case, that too, by passing a resolution to grant regularization even

in the case of persons, who were having only two years and even

much less of service cannot but be deprecated in the strongest

possible words. We are of the view that the resolution taken by the

Board is not having the support/foundation on the law declared by the

Apex Court [which is the law of land and applicable to all, by virtue of

Article 141
of the Constitution of India].

46. As observed by the Apex Court in paragraph 29 of the Apex

Court in (2017) 3 SCC 410 (cited supra), it is only the Devaswom,

who is to be blamed for not effecting appointments of persons on

'regular basis' to meet the requirement; but for repeatedly effecting

temporary recruitments without much publicity and subsequent

regularization, giving benefit only to a limited few; thus compromising

with the merit and suitability, denying entry to a large sector of

persons, who otherwise may be eligible and would have participated in

the process of selection, had there been proper publicity, also

mentioning that the recruitment process would be for 'regular posts' or

W.A. No. 481 of 2016 and
connected cases

: 56 :

at least mentioning that there was a chance for being regularized; if

all other requirements of selection were satisfied. In the said

circumstances, the Devaswom is directed to identify the vacancies to

be filled up on a permanent basis as above, and all the vacancies shall

be reported for filling up on a regular basis in accordance with the

relevant Rules, by reporting the same to the Devaswom Recruitment

Board, which has already been brought into existence.

Merit of each case is separately dealt with in the above

background.

47. W.A. No. 481 of 2016

This appeal is filed against dismissal of the O.P. seeking for a

direction to complete the selection process initiated as per Exts.P1 and

P2 dated 27.10.2000 and 16.10.2001 respectively. The ground for

dismissal is that, it was in respect of a stale cause of action. The

version of the appellants/petitioners was that, they became aggrieved

only by Ext. P4, when a decision was taken to regularize certain other

persons in the year 2010. We find that the said explanation is not

palatable and hence it was rightly rejected by the learned single Judge

and no interference is warranted. Appeal fails and it is dismissed

accordingly. However, we make it clear that, we do not endorse the

W.A. No. 481 of 2016 and
connected cases

: 57 :

proceedings of the Devaswom to regularize the service of the

temporary hands as per Ext. P4 [which has already been dealt with in

the preceding paragraphs] resolution No. 69 dated 25.11.2010 of the

Guruvayoor Devaswom Management Committee.

48. W.P.(C) No. 4070 of 2015

Challenge is against Resolution No. 299 dated 25.08.2014 of the

Guruvayoor Devaswom Management Committee for causing

regularization of the workers engaged on temporary basis. There is

also a prayer to direct the respondent Devaswom to notify the

vacancies existing in all categories and conduct fresh selection, giving

opportunity to all the candidates. In view of the reasons already

given, we hold that Ext. P14 resolution is not correct or sustainable,

which stands set aside. The Writ Petition stands allowed. We also

find it appropriate to direct the Devaswom to conduct fresh selection

after identifying the regular posts as made clear already.

49. W.P.(C) No. 4628 of 2012

The prayer is to intercept the fresh notification/selection to the

post of Typist as per Ext. P2 and also to set aside Ext.P3 (d)

Devaswom rank list, simultaneously seeking to regularise the service

of the petitioners. In so far as this Court has already held that the

W.A. No. 481 of 2016 and
connected cases

: 58 :

decision taken by the 'GDMC' to regularise service of the temporary

hands is bad in all respects; the relief of regularization is not liable to

be given to the petitioner. However, it will be for the Devaswom to

conduct fresh selection against the regular posts as made clear

already. The Writ Petition is disposed of.

50. W.P.(C) No. 4798 of 2015

The petitioners, who are stated as working as temporary hands

in the Devaswom from 2008 to 2012 approached this Court seeking

for a direction to include them as well for regularization of service in

terms of Ext. P3 resolution No. 299 dated 25.08.2014. We have

already held that the said resolution taken by the Guruvayoor

Devaswom Management Committee is not correct or sustainable.

Regularization sought for is not liable to be granted. Writ Petition fails

and the same is dismissed accordingly.

51. The grievance in the following writ petitions are as noted

below:-

W.P.(C) No. 7701 of 2012

The main prayer is to implement Ext. P6 resolution No. 69

dated 25.11.2010 taken by the respondent Devaswom for

regularising the service of the petitioner, who is a temporary

W.A. No. 481 of 2016 and
connected cases

: 59 :

employee and was completed two years of service as on

25.11.2010 and that no sanction of the 3rd

respondent/Commissioner is required in this regard.

W.P.(C) No. 7899 of 2012

The main prayer is to implement Ext. P6 resolution No. 69

dated 25.11.2010 taken by the respondent Devaswom for

regularising the service of the petitioner, who are temporary

employees and were completed two years of service as on

25.11.2010 and that no sanction of the 3rd

respondent/Commissioner is required in this regard.

W.P.(C) No. 19263 of 2011

The main prayer is to implement Ext. P6 resolution No. 69

dated 25.11.2010 taken by the respondent Devaswom for

regularising the service of the petitioners, who are temporary

employees and were completed two years of service as on

25.11.2010 and that no sanction of the 3rd

respondent/Commissioner is required in this regard.

W.P.(C) No. 20704 of 2012

The main prayer is to implement Ext. P2 resolution No. 69

dated 25.11.2010 taken by the respondent Devaswom for

W.A. No. 481 of 2016 and
connected cases

: 60 :

regularising the service of the petitioner, who is a temporary

employee and was completed two years of service as on

25.11.2010 and that no sanction of the 3rd

respondent/Commissioner is required in this regard.

W.P.(C) No. 28743 of 2011

The main prayer is to cause implementation of Ext. P6

resolution bearing No. 69 dated 25.11.2010 to regularise service

of temporary employees having two years of service.

W.P.(C) No. 29442 of 2011

The prayer of the petitioner, who was stated as working as

L.D.Clerk in the Devaswom on temporary basis from

26.04.2007, is to implement the resolution No. 69 dated

25.11.2010 and regularize the service of the temporary hands

having two years service or more as requested by the

Administrator of the Devaswom vide Ext. P2.

W.P.(C) No. 30078 of 2016

The petitioners 1 and 2 who are working as Assistant

Lineman and petitioners 3 and 4 who are working as LDC on

temporary basis, seek to quash Ext. P2 order dated 12.08.2016

of the Administrator causing to terminate them from the service,

W.A. No. 481 of 2016 and
connected cases

: 61 :

praying not to terminate their service as a temporary hand,

since they have already been included in Ext. P1 order passed

by the Guruvayoor Devaswom Managing Committee permitting

them to continue in service with intent to have their service

regularised.

W.P.(C) No. 30079 of 2016

The petitioners, who are working as 'Drivers in the

Guruvayoor Devaswom on temporary basis, seek to quash Ext.

P2 order of the Administrator causing to terminate them from

the service, and pray not to terminate their service as a

temporary hand since they have already been included in Ext.

P1 order passed by the Guruvayoor Devaswom Managing

Committee permitting them to continue in service with intent to

have their service regularised.

W.P.(C) No. 30756 of 2011

The petitioners 1 and 2, who are working as Data Entry

Operators and the petitioner No. 3, who is working as Assistant

Librarian respectively, on temporary basis, seek to quash Ext.P2

order of the Administrator causing to terminate them from the

service, and pray not to terminate their service as a temporary

W.A. No. 481 of 2016 and
connected cases

: 62 :

hand, since they have already been included in Ext. P1 order

passed by the Guruvayoor Devaswom Managing Committee

permitting them to continue in service with intent to have their

service regularised.

W.P.(C) No. 30799 of 2016

The petitioners, who are working as Assistant Linemen on

temporary basis, seek to quash Ext. P2 order of the

Administrator causing to terminate them from the service, and

pray not to terminate their service as a temporary hand, since

they have already been included in Ext. P1 order passed by the

Guruvayoor Devaswom Managing Committee permitting them to

continue in service with intent to have their service regularised.

W.P.(C) No. 30800 of 2016

The petitioners 1 to 12, who are working as Helper on

temporary basis, and petitioners 13 to 15, who are working as

plumbers on temporary basis, seek to quash Ext. P2 order of the

Administrator causing to terminate them from the service, and

pray not to terminate their service as a temporary hand since

they have already been included in Ext. P1 order passed by the

Guruvayoor Devaswom Managing Committee permitting them to

W.A. No. 481 of 2016 and
connected cases

: 63 :

continue in service with intent to have their service regularised.

W.P.(C) No. 31085 of 2016

The petitioners 1 and 2, who are working as LDC and

Hospital Attender respectively on temporary basis, seek to

quash Ext. P3 order passed by the second respondent causing to

terminate them from the service and pray not to terminate their

service as a temporary hand since they have already been

included in Ext. P2 order passed by the Guruvayoor Devaswom

Managing Committee permitting them to continue in service with

intent to have their service regularised and also seek for a

direction to implement Ext. P4 proceedings dated 16.08.2016,

the crux of which is to cause their service to be regularized.

W.P.(C) No. 31086 of 2016

The petitioners, who are working as Scavangers on

temporary basis, seek to quash Ext. P2 order of the

Administrator causing to terminate them from the service, and

pray not to terminate their service as a temporary hand since

they have already been included in Ext. P1 order passed by the

Guruvayoor Devaswom Managing Committee permitting them to

continue in service with intent to have their service regularised.

W.A. No. 481 of 2016 and
connected cases

: 64 :

W.P.(C) No. 31411 of 2016

The petitioners, who are working as Scavangers on

temporary basis, seek to quash Ext. P2 order of the

Administrator causing to terminate them from the service, and

pray not to terminate their service as a temporary hand since

they have already been included in Ext. P1 order passed by the

Guruvayoor Devaswom Managing Committee permitting them to

continue in service with intent to have their service regularised.

W.P.(C) No. 31486 of 2016

The petitioners, who are working as Live Stock Inspectors

on temporary basis, seek to quash Ext. P2 order of the

Administrator causing to terminate them from the service, and

pray not to terminate their service as a temporary hand since

they have already been included in Ext. P1 order passed by the

Guruvayoor Devaswom Managing Committee permitting them to

continue in service with intent to have their service regularised.

W.P.(C) No. 31645 of 2016

The petitioners, who are working as Live Stock Inspectors

on temporary basis, seek to quash Ext. P2 order of the

W.A. No. 481 of 2016 and
connected cases

: 65 :

Administrator causing to terminate them from the service, and

not to terminate their service as a temporary hand since they

have already been included in Ext. P1 order passed by the

Guruvayoor Devaswom Managing Committee, permitting them

to continue in service with intent to have their service

regularised.

W.P.(C) No. 31720 of 2016

The petitioners, who are working as Staff Nurse [1st

petitioner], Junior Public Health Nurse [2nd petitioner] and

Hospital Attendants [petitioners 3 to 7] on temporary basis,

seek to quash Ext. P2 order of the Administrator causing to

terminate them from the service, and pray not to terminate

their service as a temporary hand since they have already been

included in Ext.P1 order passed by the Guruvayoor Devaswom

Managing Committee permitting them to continue in service with

intent to have their service regularised.

W.P.(C) No. 31722 of 2016

The petitioners, who are working as Scavengers on

temporary basis, seek to quash Ext. P2 order of the

Administrator causing to terminate them from the service, and

W.A. No. 481 of 2016 and
connected cases

: 66 :

pray not to terminate their service as a temporary hand since

they have already been included in Ext. P1 order passed by the

Guruvayoor Devaswom Managing Committee permitting them to

continue in service with intent to have their service regularised.

W.P.(C) No. 32008 of 2016

The petitioner, who was appointed as LDC on temporary

basis as per Ext. P1 order dated 22.07.2014 passed by the 3rd

respondent, seeks to quash Ext. P3 order passed by the said

respondent and not to terminate her from service as her name

is included in Ext. P2 enabling her service to be regularized.

W.P.(C) No. 34054 of 2016

The petitioners, who are working as 'Vilakkuthuda' on

temporary basis, seek to quash Ext. P2 order of the

Administrator causing to terminate them from the service, and

pray not to terminate their service as temporary hands, since

they have already been included in Ext. P1 order passed by the

Guruvayoor Devaswom Managing Committee permitting them to

continue in service with intent to have their service regularised.

W.P.(C) No. 30801 of 2016

The petitioners, who are working as LDC on temporary

W.A. No. 481 of 2016 and
connected cases

: 67 :

basis, seek to quash Ext. P2 order of the Administrator causing

to terminate them from the service, and pray not to terminate

their service as temporary hands, since they have already been

included in Ext. P1 order passed by the Guruvayoor Devaswom

Managing Committee permitting them to continue in service

with intent to have their service regularised.

We have already held that regularisation ordered by the Apex

Court granting benefit of Paragraph 53 in
Umadevi
's case is only in

respect of the persons having completed 10 years of service as on that

day, that too, as a one time measure. As it stands so, there is

absolutely no merit or bonafides in the resolution taken by the Board

to regularise the temporary employees having just 'two years' service,

which is contrary to the law
laid down by
the Apex Court. In the said

circumstances, the claim is repelled and the above Writ Petitions stand

dismissed accordingly.

52. W.P.(C) No. 9085 of 2015

The prayer in the Writ Petition is to quash Ext. P3 resolution No.

299 dated 25.08.2014 and the attempt to regularise temporary

employees on the strength of the said resolution, simultaneously

causing vacancies to be notified for conducting fresh selection in

W.A. No. 481 of 2016 and
connected cases

: 68 :

accordance with law. We have already found that Ext. P3 resolution

is not correct or sustainable being contrary to the law declared by the

Supreme Court and accordingly, we have set aside the same. We

have also directed the Devaswom to report substantive

vacancies/regular vacancies for fresh selection in accordance with law.

As such no separate order is required to be passed. Writ Petition

stands allowed to the said extent.

53. W.P.(C) No. 14871 of 2012

Prayer is to permit the petitioner to continue in service as

temporary hand till regular hand reports for duty and not to replace

the existing temporary employees by another set of temporary

employees. We have already declared the legal position and the

further course of action to be pursued; pointing out the necessity to

identify and fill up the regular vacancies/all substantive vacancies,

after proper notification with wide publicity, enabling all eligible hands

to participate in the process selection. No other order is required to

be passed in the instant case. It is disposed of accordingly.

54. W.P.(C) No. 15060 of 2012

The main challenge is against Exts. P13 and P18 in so far as

they relate to appointment of 'Ayahs' in the Guruvayoor Devaswom

W.A. No. 481 of 2016 and
connected cases

: 69 :

English Medium School and to appoint the petitioners against the posts

in question and also to regularize their service. Regularization of

temporary hands is not possible in view of the finding already

rendered by this Court. The regular vacancies/substantive vacancies

have to be notified with wide publicity and they are to be filled up in

accordance with the law. The appointment of the respondents 6 and

7 stands set aside and the vacancies resulted shall be filled up by the

petitioners herein, if any temporary engagement is necessary as a

stop-gap arrangement, till the vacancies are filled up by the regular

hands. Writ Petition is allowed in part; to the said extent.

55. W.P.(C) No. 21998 of 2012

The Writ Petitioner challenges Exts. P2 and P3 notifications for

the post of typist on temporary/contract basis. There is a prayer for

regularization of service of the petitioners as well; besides a

contention that his service as temporary hand shall not be replaced by

another temporary hand.
In view of the declaration already made by

this Court, with reference to the law declared by the Constitutional

Bench of the Apex Court in
Umadevi
's case [cited supra], this Court

finds that there is absolutely no merit in the grounds raised and the

relief sought for. Interference is declined. The Writ Petition is

W.A. No. 481 of 2016 and
connected cases

: 70 :

dismissed accordingly.

56. W.P.(C) No. 32574 of 2014

The petitioner [in this 'lead case'] has approached this Court

seeking to quash Ext.P3 resolution No. 299 dated 25.08.2014 and to

declare that attempt on the part of the respondents to regularize the

temporary employees now working under different categories of the

Devaswom is arbitrary. There is also a further prayer to set aside

Ext. P5 Resolution bearing No. 60 dated 15.05.2015. Another prayer

is there, whereby the petitioner has sought to issue Writ of Mandamus

directing the respondents 1 and 2 to notify the vacancies existing in all

categories of posts under the Guruvayoor Devaswom and to conduct a

fresh selection process by giving opportunity to all eligible candidates

and fill up the vacancies accordingly. As per the discussions already

made, we have held that Exts. P3 and P5 are not liable to be

sustained, being arbitrary and illegal in all respects. Accordingly, we

set aside Exts. P3 and P5, which cannot be applied or made the basis

for regularizing the service of anybody under the Devaswom. We

have also held all regular/substantive vacancies shall be identified and

reported to the competent authority to conduct selection on the basis

of the relevant rules and in accordance with law. In the said

W.A. No. 481 of 2016 and
connected cases

: 71 :

circumstances, we grant the relief at 'prayer No. 3' as well.

Accordingly, this writ petition stands allowed. However, cost will be

borne by the parties.

57. Before parting with the case, it has to be noted that serious

dispute has raised from the part of the Guruvayoor Devaswom

Managing Committee as to the field of recruitment to be left within the

purview of the Kerala Devaswom Recruitment Board, who has been

impleaded as the additional 5th respondent in W.P. (C) No. 30801 of

2016 [as per order dated 21..03.2017 in I.A. No. 4875 of 2017]. It is

stated by the Guruvayoor Devaswom Managing Committee in their

counter affidavit that the Kerala Devaswom Recruitment Board was

brought in existence as per the Kerala Devaswom Recruitment Board

Act, which was brought into force on 01.03.2014, and the Board, in

fact, was constituted only much later on '14.08.2015'. This being the

position, it is stated that the Recruitment Board cannot have any say

with regard to the steps for regularization of temporary hands sought

to be pursued by the Managing Committee 'prior to 14.08.2015' and

as such, the resolutions taken by the Guruvayoor Devawom Managing

Committee in respect of Service of the temporary hands prior to

14.08.2015 have to be given effect to. It is however stated in

W.A. No. 481 of 2016 and
connected cases

: 72 :

paragraph 10 of the said affidavit dated 01.04.2017, that the

Guruvayoor Devaswom would report the vacancies that arose after

01.04.2015 and that the Board can start the selection process

accordingly. It is also pointed that the Guruvayoor Devaswom was

not a party in DBP 79 of 2014 or DBP 60 of 2015, whereby direction

was given by this Court to fill up the vacancies on war footing, through

the Devaswom Recruitment Board, as per the order dated 06.07.2015.

58. The version of the additional respondent/Kerala Devaswom

Recruitment Board, as projected in their statement dated 27.03.2017

is that the Guruvayoor Devaswom Management Committee had

entrusted the selection and appointment to the posts, except

Melsanthi, Sopanam Kaval, Kshethram Koyma, Security Officer, to the

Kerala Public Service Commissioner as per Annexure R5(a) decision

dated 10.02.2014. But they have not conducted any regular process

of selection, but for effecting temporary appointments without proper

notification and publicity and without following proper selection

process to different categories of posts, followed by subsequent

regularization. It is also pointed out that regularization of temporary

hands as a one time measure pursuant to the dictum in Umadevi's

case [cited supra] was effected by the Guruvayoor Devaswom

W.A. No. 481 of 2016 and
connected cases

: 73 :

Management Committee as per the resolution dated '25.11.2010' in

respect of service of temporary employees having completed 10 years

as on 25.11.2010, as a 'one time measure' and that the same was

implemented as per Annexure R5(b) order passed by the

Administrator. Despite the fact that it was to be done as a 'one time

measure', similar exercises were being pursued by the Guruvayoor

Devaswom, causing regularization of temporary hands as and when

the temporary hands completed 10 years of service as evident from

Annexure R5(c) decision dated 02.07.2012. Similar exercise in

respect of appointment of Scanvangers was pursued as per Annexure

R5 (e) decision dated 14.06.2013. The Guruvayoor Devaswom

Managing committee proceeded with further steps for regularization of

temporary hands on several other dates as well, as evident from

Annexure R5(f) order dated 11.06.2014 issued by the Administrator.

This was followed by the subsequent decision for effecting such

regularization of all the temporary employees stating some lame

excuse as borne by Annexure R5 (h) decision dated 25.08.2014 of the

Managing Committee and Annexure R5(i) decision dated 02.08.2014

of the very same Committee. The further steps taken by the

Guruvayoor Devaswom Managing Committee to regularize various

W.A. No. 481 of 2016 and
connected cases

: 74 :

temporary hands is discernible from Annexure R5(j) dated 15.05.2015

as well.

59. Admittedly, regularization is not a mode of appointment

and such practice has been deprecated by the Apex Court on many an

an occasion. In so far as the field of recruitment is governed by

statutory rules, no such regularization is permissible or possible in

contravention of the Rules framed under
Article 309
of the

Constitution of India. Section 9 (1) of the Kerala Devaswom

Recruitment Board Act 2015 [produced as Annexue R5 (g) in W.P.(C)

No. 30801 of 2016] reads as follows :

"9. Functions of the Board : (1) The Board shall have

the following functions, namely:-

(i) notwithstanding anything contained in any other

existing Act or Rules or Regulations or orders or judgment

or decree in respect of the appointment of candidates to

the posts in Devaswom Board, the Board shall prepare

select list for the appointment of candidates to various

posts other than the hereditary posts and posts in the

aided educational institutions in the Devaswom Boards as

per the provisions of this Act, Rules and Regulations;

(ii) to invite applications, to conduct written

examination or interview or written examination and

interview and to prepare select list for selection to the

W.A. No. 481 of 2016 and
connected cases

: 75 :

various posts other than the hereditary posts under the

Devaswom Board, as may be prescribed, as and when the

requisition for such examination is received from the

concerned Devaswom Board.

(iii) to make all required arrangements in connection

with the examination including the preparation of question

papers, supervision of examinations and valuation, conduct

of interview and preparation of the select list;

(iv) to conduct any other examination relating to

Devaswom Board as entrusted by the Government;

(v) to call for and obtain details regarding the

examination from the concerned Devaswom Board.

(2) The Board shall be responsible for the proper

conduct of the examination, to maintain the secrecy in the

preparation of question paper, valuation, preparation of the

list of candidates to be interviewed and preparation of the

final select list to be furnished to the Devaswom Board and

other connected matters and for the safe custody of the

records pertaining to the examinations.

(3) (i) The Board shall conduct written examination

to the candidate who had submitted applications and

prepare lists, after conducting interview or written

examination and interview;

(ii) Examination may be conducted for any Devaswom

Board or for all the Devaswom Boards in suitable manner

W.A. No. 481 of 2016 and
connected cases

: 76 :

for the said purpose.

(iii) An applicant, who applies for more than one post

or to more than one Devaswom Boards, shall not be denied

the right to appear in more than one examination.

Provided that, if the candidate applies for

examinations to various posts being conducted by the

Board and in the circumstance of conducting examinations

to more than one post by the Board on the same day the

right referred in 3 (iii) shall not be available to such

candidate.

(4) The procedure to be followed by the Board, in

respect of the invitation of applications, conduct of written

examination, preparation of list of candidates to be

interviewed, conduct of interview and preparation of the

select list to various posts in the Devaswom Board, shall be

such as may be prescribed.

(5) The Board may issue general directions to the

Devaswom Boards incidental to the functions of the Board

and as are necessary for the conduct of the examinations.

(6) It shall be the duty of the Board to furnish the

select list to the Devaswom Board and advise to the

candidates prepared in the manner as may be prescribed."

60. From the above, it is quite clear that there is a 'non-

obstante clause' in the said provision and as such, whatever may be

W.A. No. 481 of 2016 and
connected cases

: 77 :

the contents of the
Guruvayoor Devaswom Act
or
Guruvayoor

Devaswom Employees Recruitment Act
of Regulations; after

commencement of the Kerala Devaswom Recruitment Board Act 2015,

recruitment to various Devaswoms in Kerala can be effected only

through the machinery under the Kerala Devaswom Recruitment Act

2015. This is more so, since the Guruvayoor Devaswom is also one

of the Devaswoms, who comes under Section 2 (b) of the the Kerala

Devaswom Recruitment Board Act 2015, which defines the term

'Devaswom'. That apart, as per
Section 9 (6)
of the Guruvayoor

Devaswom Board Recruitment Act, it shall be the duty of the

Recruitment Board to furnish select list to the Devaswom Board and

advise candidates prepared from the list in the manner as may be

prescribed. In the above circumstances, this Court finds that the

regular recruitment has to be made by the Kerala Devaswom

Recruitment Board and no exception can be drawn by the Guruvayoor

Devaswom.

61. As mentioned already, the only possible instance of

regularization pursuant to the verdict rendered by the Umadevi's

case [cited supra] could have been the regularization of the service of

the persons having completed '10 years', as a one time measure,

W.A. No. 481 of 2016 and
connected cases

: 78 :

which has been effected by the Devaswom as per the resolution dated

25.11.2010. Having effected that, it was not open for the

Guruvayoor Devaswom Management Committee to have pursued

further regularization of temporary hands as and when they

completed 10 years of service and such persons who have been

regularized in service after the decision taken on 25.11.2010. Since

such persons, who have completed 10 years of service after

25.11.2010 are not in the party array and their regularization is not

under challenge; this Court does not intend to mention anything

further in this regard, but for declaring that no further regularization

exercise shall be done in respect of any temporary hands, without

causing all the regular vacancies/substantive vacancies to be notified

to the Kerala Devaswom Recruitment Board to conduct selection and

advise candidates based on the qualification stipulated to the posts in

question.

62. At the same time, it has to be noted that, because of the

illegal exercise that was being pursued by the Guruvayoor Devaswom

Managing Committee by engaging temporary hands and continuing

them for quite long without resorting to regular recruitment, the

persons who came to be appointed so might have crossed the upper

W.A. No. 481 of 2016 and
connected cases

: 79 :

age limit. In the said circumstances, while notifying the posts for

regular appointment, it is possible for the Guruvayoor Devaswom to

provide for 'age relaxation' to such extent the above temporary hands

have been working under the Guruvayoor Devaswom Management

Committee and also provide some weightage for the service already

rendered by them, for example; 'one mark' for 'one year' of

completed service, subject to a maximum of 10 marks and to assess

the eligibility and suitability accordingly, along with such other

requirements and subject to satisfaction of the other

qualifications/requirements.

Sd/-

P. R. RAMACHANDRA MENON,
JUDGE

Sd/-

A. M. BABU,
JUDGE
lk/kmd
/True copy/

P.A. to Judge