Kerala High Court

Kerala Devaswom Recruitment Board vs Mayadevi K.S on 6 April, 2022

Author:
Alexander Thomas

Bench:
Alexander Thomas

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
WEDNESDAY, THE 6TH DAY OF APRIL 2022 / 16TH CHAITHRA, 1944
WA NO. 1042 OF 2021
AGAINST THE ORDER/JUDGMENT IN WP(C) 10135/2021 OF HIGH COURT
OF KERALA
APPELLANT/S:

THE ADMINISTRATOR, GURUVAYOOR DEVASWOM MANAGING
COMMITTEE
GURUVAYUR, THRISSUR - 680 101.
BY ADVS.
SRI.P.B.KRISHNAN
SRI.P.B.SUBRAMANYAN
SRI.SABU GEORGE
SRI.B.ANUSREE
SRI.MANU VYASAN PETER

RESPONDENT/S:

1 MAYADEVI K.S.
ASSISTANT MANAGER/ADMINISTRATIVE ASSISTANT,
GURUVAYUR DEVASWOM ENGLISH MEDIUM SCHOOL,
GURUVAYUR, THRISSUR - 680 101.
2 M.RADHA
ASSISTANT MANAGER, GURUVAYUR DEVASWOM MEDICAL
CENTRE, GURUVAYUR, THRISSUR - 680 101.
3 BINDHU LETHA MENON
ASSISTANT MANAGER, KOUSTHUBHAM REST HOUSE,
GURUVAYUR, THRISSUR - 680 101.
4 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE
(DEVASWOM) DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
5 GURUVAYUR DEVASWOM MANAGING COMMITTEE
GURUVAYUR, THRISSUR - 680 101, REPRESENTED BY ITS
ADMINISTRATOR.
W.A. Nos.1042 & 1241 of 2021

6 KERALA DEVASWOM RECRUITMENT BOARD
TRAVANCORE DEVASWOM BOARD BUILDING,
THIRUVANANTHAPURAM - 695 001, REPRESENTED BY ITS
SECRETARY.
7 DEPARTMENT PROMOTION COMMITTEE (DPC)
FOR-PROMOTION TO THE CADRE OF DEPUTY ADMINISTRATOR
AND MANAGER IN GURUVAYUR DEVASWM, REPRESENTED BY
ITS CONVENER AND CHAIRMAN, GURUVAYUR DEVASWOM,
GURUVAYUR, THRISSUR - 680 101.
8 PRAMOD KALARIKKAL
ASSISTANT MANAGER (TEMPLE ACCOUNTS), GURUVAYUR
DEVASWOM, GURUVAYUR, THRISSUR - 680 101.
9 K.T.HARIDASAN
ASSISTANT MANAGER (TEMPLE), GURUVAYUR DEVASWOM,
GURUVAYUR, THRISSUR - 680 101.
10 PRAVEEN T.KUMAR
ASSISTANT MANAGER (TEMPLE), GURUVAYUR DEVASWOM,
GURUVAYUR, THRISSUR - 680 101.
11 K.BINU
ASSISTANT MANAGER (ACCOUNTS), GURUVAYUR DEVASWOM,
GURUVAYUR, THRISSUR - 680 101.
12 P.RATHI
ASSISTANT MANAGER (MARAMATH), GURUVAYUR DEVASWOM,
GURUVAYUR, THRISSUR - 680 101.
13 V.C.SUNIL KUMAR
ASSISTANT MANAGER (LIVESTOCK), GURUVAYUR DEVASWOM,
GURUVAYUR, THRISSUR - 680 101.
BY ADVS.
SRI.BRIJESH MOHAN
SRI.K.JAJU BABU (SR.)
SRI.ANTONY MUKKATH, SENIOR GOVERNMENT PLEADER(B/O)
SRI.V.V.NANDAGOPAL NAMBIAR
SRI.M.U.VIJAYALAKSHMI
SR
I.P.C
.SASIDHARAN
SRI.N.MANOJ KUMAR, STATE ATTORNEY

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
06.04.2022, ALONG WITH WA.1241/2021, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.A. Nos.1042 & 1241 of 2021

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
WEDNESDAY, THE 6TH DAY OF APRIL 2022 / 16TH CHAITHRA, 1944
WA NO. 1241 OF 2021
AGAINST THE ORDER/JUDGMENT IN WP(C) 10135/2021 OF HIGH COURT
OF KERALA

APPELLANT/S:

KERALA DEVASWOM RECRUITMENT BOARD
2ND FLOOR, TRAVANCORE DSEVASWOM BOARD BUILDINGS,
AYURVEDA COLLEGE JUNCTION, M.G.ROAD,
THIRUVANANTHAPURAM-695001, REPRESENTED BY ITS
SECRETARY
BY ADV V.V.NANDAGOPAL NAMBIAR

RESPONDENT/S:

1 MAYADEVI K.S.
ASSISTANT MANAGER/ADMINISTRATIVE ASSISTANT,
GURUVAYUR DEVASWOM ENGLISH MEDIUM SCHOOL,
GURUVAYUR, THRISSUR-680 101
2 M.RADHA
ASSISTANT MANAGER, GURUVAYUR DEVASWOM MEDICAL
CENTRE, GURUVAYUR, THRISSUR-680 101
3 BINDHU LETHA MENON
ASSISTANT MANAGER, KOUSTHUBHAM REST HOUSE,
GURUVAYUR, THRISSUR-680 101
4 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE
(DEVASWOM) DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001
5 GURUVAYUR DEVASWOM MANAGING COMMITTEE,
GURUVAYUR, THRISSUR-680 101,REPRESENTED BY ITS
ADMINISTRATOR
W.A. Nos.1042 & 1241 of 2021

6 THE ADMINISTRATOR
GURUVAYUR DEVASWOM MANAGING COMMITTEE, GURUVAYUR,
THRISSUR-680 101
7 DEPARTMENTAL PROMOTION COMMITTEE (DPC)
FOR-PROMOTION TO THE CADRE OF DEPUTY ADMINISTRATOR
AND -MANAGER IN GURUVAYUR DEVASWOM, REPRESENTED BY
ITS CONVENER AND CHAIRMAN, GURUVAYUR
DEVASWOM,GURUVAYUR, THRISSUR-680 101
8 SRI. PRAMOD KALARIKKAL
ASSISTANT MANAGER (TEMPLE ACCOUNTS), GURUVAYUR
DEVASWOM,GURUVAYUR, THRISSUR-680 101
9 SRI. K.T.HARIDASAN
ASSISTANT MANAGER (TEMPLE ), GURUVAYUR
DEVASWOM,GURUVAYUR, THRISSUR-680 101
10 SRI. PRAVEEN T. KUMAR
ASSISTANT MANAGER (TEMPLE ), GURUVAYUR
DEVASWOM,GURUVAYUR, THRISSUR-680 101
11 SRI. K. BINU
ASSISTANT MANAGER (ACCOUNTS ), GURUVAYUR
DEVASWOM,GURUVAYUR, THRISSUR-680 101
12 SMT. P.RATHI
ASSISTANT MANAGER (MARAMATH), GURUVAYUR
DEVASWOM,GURUVAYUR, THRISSUR-680 101
13 SRI.V.C.SUNIL KUMAR
ASSISTANT MANAGER (LIVESTOCK ), GURUVAYUR
DEVASWOM,GURUVAYUR, THRISSUR-680 101
BY ADVS.
SRI.K.JAJU BABU (SR.)
SRI.T.K.VIPINDAS
SRI.M.U.VIJAYALAKSHMI
SRI.BRIJESH MOHAN

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
06.04.2022, ALONG WITH WA.1042/2021, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
(CR)

ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
-----------------------------------------------------------------
W.A. Nos.1042 of 2021 & 1241 of 2021
[arising out of the impugned judgment dated 24.06.2021 in W.P.(C) No.10135/2021]
------------------------------------------------------------------
Dated this the 6th day of April, 2022

JUDGMENT

Alexander Thomas, J.

Since both these intra court appeals have arisen out of the

very same impugned common judgment dated 24.06.2021,

rendered by the learned Single Judge, in the instant W.P.(C)

No.10135/2021, hence these appeals are disposed of on the basis

of this common judgment.

2. Heard Sri. P. B. Krishnan, learned counsel appearing

for the appellant in W.A.No.1042/2021, Sri. V. V. Nandagopal

Nambiar, learned Standing Counsel and Sri.P.C. Sasidharan,

learned Advocate, both appearing for the appellant in

W.A.No.1241/2021, Sri. K. Jaju Babu, learned Senior Counsel,

instructed by Sri. Brijesh Mohan, learned counsel appearing

for respondents 1 to 3 in both the appeals/writ petitioners,

Sri. Antony Mukkath, learned Senior Government Pleader,

appearing for the respondent State Government in these cases,
W.A Nos.1042& 1241 of 2021

..2..

and Sri. T. K. Vipindas, the learned Standing Counsel for the

respondent Guruvayur Devaswom Board, appearing in these cases.

3. The prayers in the instant W.P.(C)No.10135/2021 are

as follows:-

"i. issue a writ of mandamus or any other appropriate writ, order
or direction, directing the respondents 2 and 3 to promote the
petitioners as Manager in accordance with
Regulation 16
of
the Guruvayur Devaswom Employees Regulations 1983 as per
Ext.P1 forthwith.

ii. issue a writ of certiorari or any other appropriate writ, order
or direction, calling for Ext.P6 and quash the same to the
extent respondents 6 to 11 are selected for promotion to the
post of Manager in supersession to the petitioners.

iii. Declare that the selection to the post of Manager as per Ext.P6
is illegal and in clear violation to
Regulation 16
of Ext.P1
Regulations and thereby unsustainable.

iv. Declare that Ext.P7 and P9 are illegal and ultravirus the
provisions of Kerala Devaswom Recruitment Board Act and
Guruvayur Devaswom Act 1978 as well as Ext.P1 Regulations
and thereby inapplicable in the matter of promotions under the
Guruvayur Devaswom.

v. issue a writ of certiorari or any other appropriate writ, order
or direction, calling for Ext.P7 and P9 and quash the directions
contained therein in respect of promotions in Guruvayur
Devaswom governed by Ext.P1 Guruvayur Devaswom
Employees Regulations 1983.

vi. issue a writ of certiorari or any other appropriate writ, order
or direction, calling for the records leading to Ext.P6 and
quash the all selection to the post of Manager.

vii. issue such other and further reliefs as this Honourable Court
may deem fit and proper in the facts and circumstances of the
case;

and

viii. award costs to the petitioners."

W.A Nos.1042& 1241 of 2021

..3..

4. The case set up in the W.P.(C) is broadly as follows:-

That, the three writ petitioners (contesting respondents 1 to 3 in

both the appeals) are holding the post of Assistant Managers in the

respondent Guruvayur Devaswom Board, their probation in the

cadre of Assistant Managers have been duly declared and that they

have all the eligibility conditions including passing of obligatory

test qualifications for being considered for promotion to the next

higher category post of Manager. That, the Guruvayur Devaswom

Employees Regulations, 1983, have been statutorily framed under

Section 39
of the Guruvayoor Devaswom Act, 1978, with the prior

approval of the State Government at Ext.P1. That,
Regulation 16

thereof deals with promotion, which reads as follows:-

"
Regulation 16
. Promotion:-

(a) Probationers working in any post shall be eligible for
promotion to a higher post as per provisions applicable to employees of
State Government.

(b) All promotions or appointments by transfer, shall, subject to the
provisions of these regulation, be made by the Administrator after
obtaining approval of the managing Committee in accordance with
seniority subject to the persons being considered suitable for the post."

5. That, as per the
Regulation 4
, the appointing authority

for all the posts in the Guruvayur Devaswom Service shall be the

Managing Committee. That, on account of the insistence of the
W.A Nos.1042& 1241 of 2021

..4..

respondent State Government and the respondent Kerala

Devaswom Recruitment Board, promotion to the post of Manager

was unlawfully taken over by the Departmental Promotion

Committee (DPC), said to have been constituted under the Kerala

Devaswom Recruitment Board Act, 2015. Further that the said

DPC, without considering the confidential records for all the three

previous years in question and by placing reliance on adverse

entries which are uncommunicated to the writ petitioners, have

chosen to deny them promotions. Further that confidential

records for only the year 2020 has been taken into account.

Further that, the said stand has been taken by the respondent-

Recruitment Board on the premise that appointments to all the

posts in the Guruvayur Devaswom Service other than the

hereditary posts, etc. can be made only at the instance of the said

recruitment Board. The said stand of the Recruitment Board is

illegal and ultravires, inasmuch as the Kerala Devaswom

Recruitment Board Act, 2015, confers jurisdiction to the said

Recruitment Board only for making selection list for direct

recruitment to the various posts in the Guruvayur Devaswom
W.A Nos.1042& 1241 of 2021

..5..

Service other than the hereditary posts, etc. That, Ext.P6 is the

minutes of the DPC, constituted under the Kerala Devaswom

Recruitment Board Act, forwarded by the 5th respondent in the

W.P.(C) (DPC) to the 3rd respondent (Administrator, Guruvayur

Devaswom Managing Committee) and that the said proceedings of

the DPC is liable to be quashed. That, the sole authority to

consider the promotions of the writ petitioners to the post of

Manager is the respondent Guruvayur Devaswom Managing

Committee so long as regulations 4 & 16 of the Guruvayur

Devaswom Employees Regulation, 1983, are not statutorily

amended in the manner known to law. That, the said regulations

have not been amended. Therefore the present impugned

proceedings of the DPC, constituted under the Devaswom

Recruitment Board Act at Ext.P6, is ultravires the provisions

contained in the Kerala Devaswom Recruitment Board Act, 2015

and the Kerala Devaswom Recruitment Board Rules, 2015, etc.

During the pendency of the W.P.(C), the writ petitioners have

produced additional documents as per Exts.P10 to P14 in the W.P.

(C) along with I.A.No.5/2021 in the above W.P.(C). It is averred in
W.A Nos.1042& 1241 of 2021

..6..

the affidavit filed along with the said I.A. that later all issues were

considered by the Managing Committee of the respondent

Guruvayur Devaswom Board, in the meeting held on 26.04.2021,

all the members of the Managing Committee, except the Chairman

have resolved to reject the recommendation contained in Ext.P6

and give promotions to employees who joined Devaswom service

prior to 2015, in accordance with the abovesaid Regulations and

that Ext.P13 is the copy of the decision rendered on 26.04.2021 by

the respondent Guruvayur Devaswom Managing Committee.

6. Per contra, the contention of the respondent

Recruitment Board and the respondent State Government is that

on and with effect from 01.03.2014, (the date of coming into force

of the Kerala Devaswom Recruitment Board Act, 2015), by virtue of

the non- obstante clause contained in
Section 9(1)(i)
of the said

Act, 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 the Devaswom

Board, the Board shall prepare select list for the appointment of

candidates to various posts other than the heriditary posts and
W.A Nos.1042& 1241 of 2021

..7..

posts in the aided educational institutions in the Devaswom Boards

as per the provisions of the said Act, Rules and Regulations, etc.

Hence, it has been contended by them that, appointments to all the

posts in various Devaswoms, including the Guruvayur Devaswom

Board, can be effectuated only in accordance with the Kerala

Devaswom Recruitment Board Act, 2015 and that even promotions

to the instant post of Manager can be made only through the

Departmental Promotion Committee, constituted as per the Rules

framed under the Kerala Devaswom Recruitment Board Act, 2015,

etc.

7. The learned Single Judge, after hearing both sides, has

noted the specific submission made on behalf of the writ

petitioners that, subsequently, by Ext.P13 proceedings dated

26.04.2021, the decision has been taken by the respondent

Guruvayur Devaswom Managing Committee to reject the

recommendations of the DPC at Ext.P6, to make promotions on

the basis of the Guruvayur Devaswom Employees Regulations,

1983 and also to inform the Chairman of the respondent

Devaswom Recruitment Board, accordingly, etc., though a dissent
W.A Nos.1042& 1241 of 2021

..8..

has been recorded therein on behalf of the Chairperson of the

Committee. The learned Single Judge also noted the contention of

the writ petitioners that, since Ext.P13 decision has been taken by

the Managing Committee on the basis of majority, the same will

have to be implemented.

8. Per contra, the learned Standing Counsel for the

Guruvayur Devaswom Board submitted that, it may be true that,

Ext.P13 decision has been taken by the Managing Committee on

26.04.2021, but since it has been issued on the basis of majority,

the same will necessarily have to be implemented as per law and

that as it can be enforced only as per law, Ext.P13 has been

forwarded to the respondent Devaswom Recruitment Board for

further action. Whereas the learned Standing Counsel for the

respondent Devaswom Recruitment Board submitted that, if the

Guruvayur Devaswom Board has forwarded all the relevant and

necessary papers, like the recruitment papers, to the recruitment

Board, then they will apposite steps for implementation of the

same, following the Kerala Devaswom Board Recruitment Rules.

9. The learned Single Judge has, in paragraph No.5 of the
W.A Nos.1042& 1241 of 2021

..9..

impugned judgment, noted that the Managing Committee of the

Guruvayur Devaswom Board has taken a decision, as per Ext.P13,

to effect promotion, based on the 1983 Regulations and that all

further actions, based on Ext.P13 resolution, will be within the

liberty of the respondent Guruvayur Devaswom Board to forward

as per law. The learned Single Judge, as per the impugned

judgment rendered on 24.06.2021, has thus finally disposed of the

instant W.P.(C) No.10135/2021, as per paragraph No.6 thereof,

that there is no necessity for the Court to consider any of the rival

contentions impelled in the case at this stage, since it is upto the

respondent Devaswom Board to now implement Ext.P13 decision

as per law. Hence, the learned Single Judge, as per the impugned

judgment, has ordered that the submission that, Ext.P13 resolution

has been adopted by the Managing Committee of the Devaswom

Board, has been recorded and the Devaswom Board has been

granted liberty to implement it, in the manner and following the

procedure applicable, etc.

10. Later, the writ petitioners have instituted a contempt of

Court proceedings as CoC No.1081/2021 (arising out of the above
W.A Nos.1042& 1241 of 2021

..10..

judgment in W.P.(C) No.10135/2021), before the learned Single

Judge. The learned Single Judge has rendered the judgment on

30.07.2021 disposing of the abovesaid CoC No.1081/2021 by

holding in paragraph No.8 thereof that the abovesaid impugned

judgment in the W.P.(C) has not given any affirmative directions

therein and that the only liberty that had been granted to the

respondent Guruvayur Devaswom Board is to take action as per

Ext.P13 resolution as it is legally permissible and after recording

the decision of the respondent Devaswom Board that they have

entrusted the matter with the 1st respondent therein (Administrator

of the Guruvayur Devaswom Board) to comply with the directions

of this Court as per the impugned judgment in the W.P.(C). The

learned Single Judge has noted in paragraph No.9 of the judgment

of the Contempt Case that what has been done as per the

impugned Ext.P13 proceedings dated 26.04.2021 by the

Guruvayur Devaswom Managing Committee is that the

recommendations of the DPC at Ext.P6 have been rejected and

further that a decision has been taken in Ext.P13 that employees in

the Guruvayur Devaswom Board, who have entered into service
W.A Nos.1042& 1241 of 2021

..11..

prior to 2015, be granted promotion as per the Guruvayur

Devaswom Employees Regulations, 1983. The learned Single

Judge has closed the said Contempt of Court Case granting liberty

to the petitioners to move the Managing Committee of the

Guruvayur Devaswom Board, appropriately, based on Annexure-C

therein (Resolution No.2 dated 01.07.2021, issued by the

Administrator), in which event the said authority is left with the

liberty to take appropriate action as they are advised in terms of

law and after following the due procedure, etc.

11. Initially, W.A.No.1042/2021 has been filed before this

Court on 27.07.2021, which came for admission before this Court

on 12.08.2021. The appellant in W.A.No.1042/2021 is the

Administrator of the Guruvayur Devaswom Managing Committee

and his case is that he has not filed the appeal against any of the

decisions of the Guruvayur Devaswom Managing Committee but

that his predecessor, as the Administrator, had filed an affidavit or

undertaking before the Apex Court in an SLP (filed against the

judgment of the Division Bench of this Court in W.A.No.481/2016

and connected cases), that all appointments to the various posts in
W.A Nos.1042& 1241 of 2021

..12..

the Guruvayur Devaswom Board other than the hereditary posts,

etc., will be made only in accordance with the procedure envisaged

in the Kerala Devaswom Recruitment Board Act, 2015, in view of

Section 9(1)
of the said Act and that the resolution of the Managing

Committee of the Guruvayur Devaswom Board at Ext.P13 may go

against the said undertaking and that the appellant, as the

Administrator, may have to face contempt proceedings for

violation of the abovesaid undertaking, etc. Further, on merits, it

has been contended by the appellant that it has been held by the

Division Bench of this Court in the judgment rendered on

31.08.2017 in W.A. No.481/2016 (
K. Ajitha & Others v. Guruvayur

Devaswom Managing Committee & Others
), more particularly in

para No.60 thereof, that in view of the non-obstante clause

contained in Sec.9(1)(i) of the Kerala Devaswom Board

Recruitment Act, 2015, irrespective of the provisions in the

Guruvayoor Devaswom Act
or the Guruvayur Devaswom

Employees Service Regulations, after commencement of the Kerala

Devaswom Recruitment Board Act, 2015, recruitment to various

Devaswoms in Kerala can be effected only through the machinery
W.A Nos.1042& 1241 of 2021

..13..

under the Kerala Devaswom Recruitment Act, 2015. Hence, it has

been contended by the appellant that, even promotions to various

posts in the Guruvayur Devaswom Board can, henceforth, be made

only in accordance with the provisions contained in the Kerala

Devaswom Recruitment Board Act, 2015, and the Rules framed

thereunder and the provisions contained in the said 2015 Act will

override the provisions contained in the Guruvayur Devaswom

Board Act and the Regulations framed thereunder, to that extent.

Whereas, the contention of the contesting respondents 1 to 3

therein/writ petitioners was to the effect that the said provisions,

contained in the Kerala Devaswom Recruitment Board Act, would

be applicable only for preparation of select list for various

appointments, which can only be in the case of direct recruitment

and not on the basis of promotions or by-transfer appointments,

etc. for in-service employees, etc.

12. This Court, then passed an interim order on 12.08.2021

in W.A. No.1042/2021, to the limited extent of staying the

operation and enforcement of the judgment dated 30.07.2021,

rendered by the learned Single Judge, in CoC No.1081/2021
W.A Nos.1042& 1241 of 2021

..14..

(arising out of the instant W.P.(C)), for the time being and no

direction has been issued by this Court in these appeals, staying

the operation of the judgment in the W.P.(C). Thereafter, W.A.

No.1042/2021 has been listed along with W.A. No.1241/2021, filed

at the instance of the Devaswom Recruitment Board.

13. These appeals have been heard on various occasions

and certain subsequent developments have also happened, more

particularly, in relation to the issuance of Anx.R1(a) G.O.(Rt)

No.3244/2021/RD dated 26.09.2021, issued by the respondent

State Government in the Revenue (Devaswom) Department,

whereby, Ext.P13 decision of the respondent Guruvayur Devaswom

Managing Committee has been canceled and consequentially

Anx.R1(b) proceedings dated 29.09.2021 has also been issued by

the Administrator, etc. Those aspects of the matters will be dealt

with in the subsequent portions of this judgment.

14. The main issue to be resolved in these appeals is as to

whether all appointments to the various posts, other than the

hereditary posts, etc., be it by the method of direct recruitment,

promotion or by-transfer, etc., can be effectuated only in
W.A Nos.1042& 1241 of 2021

..15..

accordance with the provisions contained in the Kerala Devaswom

Recruitment Board Act, 2015 and the Rules framed thereunder or

whether the said function of the Devaswom Recruitment Board is

confined only to direct recruitment, etc. It may be pertinent to

make a brief reference to the relevant provisions contained in the

Guruvayoor Devaswom Act, 1978
, the Guruvayur Devaswom

Employees Regulations, 1983, framed under the above Act, the

relevant provisions of the Kerala Public Service Commission

(Additional Functions as Respects the Administrative Services

under Devaswom Boards) Act, 2008, as well as the relevant

provisions contained in the Kerala Devaswom Recruitment Board

Act, 2015 and the Rules framed thereunder. It will also be

pertinent to refer to the legal position settled by the Apex Court in

the leading case laws relating to the distinction between selection

posts and non-selection posts in promotions and by-transfer

appointment especially about the criteria of merit and ability/merit

cum suitability, to be resorted to while making promotion and by-

transfer appointments to selection posts.

W.A Nos.1042& 1241 of 2021

..16..

15. Relevant provisions of the
Guruvayoor Devaswom Act

and the Regulations framed thereunder:

Sec.19
of the Guruvayoor Devaswom Act, 1978, deals with

appointments of officers and employees.
Sec.19(1)
stipulates that

appointments of all officers and other employees of the Devaswom

shall be made by the committee.
Sec.2(c)
thereof defines

'committee' to mean 'Guruvayoor Devaswom Managing

Committee, constituted under
Sec.3
.
Sec.19(3)
further stipulates

that selection of officers and other employees of the Devaswom

may be made by sub-committees constituted by the Committee

from among its members. The proviso thereto may not be very

relevant for our purpose.
Sec.19(4)
further mandates that subject

to the provisions of Sub-Secs (1), (2) & (3) thereof, the procedure

for selection and appointment of officers and other employees of

the Devaswom shall be such as may be determined by the

Committee by regulations made in this behalf.
Sec.39
thereof deals

with framing of regulations.
Sec.39(1)
stipulates that the

Committee may, subject to the approval of the Government, make

regulations not inconsistent with the provisions of the said Act and
W.A Nos.1042& 1241 of 2021

..17..

the rules made thereunder, to provide for the manner in which

duties imposed on it under the said Act and its functions

thereunder shall be discharged.
Sec.39(2)
would further stipulate

that in particular, and without prejudice to the generality of the

foregoing power, such regulations may provide for- (a) the

conditions of service of the Administrator and the other officers

and employees of the Devaswom, etc.

16. Ext.P1 is a copy of the Guruvayur Devaswom

Employees Regulations, 1983, framed under
Sec.39
of the abovesaid

Act.
Regulation 4
thereof deals with appointing authority and it is

mandated therein that the appointing authority, for all the posts in

the Guruvayur Devaswom Service, shall be the Managing

Committee.
Regulation 5
deals with the method of appointments,

which conceive of direct recruitment, which shall be made after

due publication of notices inviting applications and eligible

persons shall be called for the written test or interview or both and

selection has to be made on the basis of merit.
Regulation 5(b)

stipulates that, in the case of appointments by promotions or direct

recruitment, direct recruitment shall be resorted to only if suitable
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qualified candidates for promotion are not available.
Regulation

5(c)
stipulate that the Managing Committee shall decide the

method of appointment in the case of temporary post, as and when

required. Proviso to
Regulation 5
is very important and the same

reads as follows:-

"Provided that the post of Executive Engineer, Assistant Executive
Engineer, Assistant Engineer, Deputy Administrator and Manager
shall be treated as selection categories. 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 be considered only where merit and ability are
approximately equal."

17. The table given under
Regulation 5
deals with the

various posts and the method of appointment. Category No.3

thereof is the post of Manager and it is stipulated therein that the

method of appointment, by promotion to the post of Manager,

shall be promotion from the feeder category of Assistant Manager.

Further, in the subsequent table, dealing with qualifications, the

qualifications for category No.3, post of manager, are also

stipulated therein.
Regulation 16
reads as follows:-

"16. Promotion:-

(a) Probationers working in any post shall be eligible for promotion to
a higher post as per provisions applicable to employees of State
Government.

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(b) All promotions or appointment by transfer shall, subject to the
provisions of these regulation, be made by the Administrator after
obtaining approval of the managing Committee in accordance with
seniority subject to the persons being considered suitable for the
post."

18. Clause (b) of
Regulation 16
, envisages that all

promotions or appointments by transfer shall, subject to the

provisions of the above regulations, be made by the Administrator,

after obtaining approval of the Managing Committee, in

accordance with seniority, subject to the persons being considered

suitable for the post. So,
Regulation 16(b)
, by itself, would give an

impression as if all promotions or all appointments by transfer will

be on the basis of seniority cum suitability. However, the proviso

to regulation 5 speaks about selection categories of posts.

19. A cumulative and combined reading of regulation 16(b),

read with the proviso to regulation 5, makes it clear that the posts

of Executive Engineer, Assistant Executive Engineer, Assistant

Engineer, Deputy Administrator and Manager shall be treated as

selection categories of posts and for effecting such promotions to

selection categories, as above, the appointment shall be made by

the Managing Committee, from among its members eligible for

appointment to such category, on the basis of merit and suitability
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and seniority being considered only where merit and ability are

approximately equal. So, the cumulative impact of these

provisions is that, promotions and by-transfer appointments to all

posts, other than selection categories, would be on the basis of

seniority, subject to suitability. But promotions to the selection

categories of the 4 posts above, shall be only on the basis of merit

and ability and seniority can be considered only when merit and

ability are approximately equal.

20. The provisions contained in the Kerala Public

Service Commission (Additional Functions as Respects the

Administrative Services under the Devaswom Boards) Act, 2008

(State Act 19 of 2008), enables the PSC to exercise certain

additional functions, as respects the administrative services under

certain Devaswom Boards.
Sec. 2(a)
thereof defines "Devaswom

Board" to mean the Travancore Devaswom Board and the Cochin

Devaswom Board.

21. So, it can be seen that the said State Act 19 of 2008 was

not, in any manner, made in relation to the appointments in the

Guruvayur Devaswom Board. More particularly,
Sec.3(1)
&
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Sec.3(2)
would make it clear that the duty of the Public Service

Commission is to prepare select list of candidates for appointment

by direct recruitment of all officers and employees in the

Administrative services of the two Devaswom Boards mentioned

therein. This is clear from a simple reading of
Sec.3(i)
as well as

Sec.3(2)(a)
&
Sec.3(2)(b)
. So, it can be seen that, the main function

entrusted to the Public Service Commission was only in relation to

making appointments, by the method of direct recruitment, to the

posts of all officers and employees in the administrative services of

the two Devaswom boards mentioned therein. The Kerala Public

Service Commission (Additional Functions as Respects the

Administrative Services under the Devaswom Boards) Rules, 2009,

were also then framed under the said Act. Later, the Travancore

Cochin Hindu Religious Institutions (Amendment Act) 2014 (State

Act 1 of 2014) was framed.
Sec. 16
thereof deals with repeal of the

abovesaid State Act 19 of 2008 and it is stipulated therein that the

Kerala Public Service Commission (Additional Functions as

respects the Administrative Services under Devaswom Boards) Act,

2008 (State Act 19 of 2008) stands thereby repealed, etc. Later, it
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appears that the State legislature has repealed the abovesaid Act 19

of 2008, entrusting the functions of selections in direct

recruitment to the said two Devaswom Boards.

22. We have referred to the provisions contained in the

abovesaid Kerala Public Service Commission (Additional Functions

as respects the Administrative Services under Devaswom Boards)

Act, 2008, only to highlight the aspect that, the main function

entrusted with the KPSC, as per the said Act, was only in relation

to making selection by the method of appointment of direct

recruitment to the various posts of officers and employees under

the Devaswoms mentioned therein. In other words, the

entrustment of the functions to the PSC, as per the said Act, was

not in relation to the method of appointment, other than direct

recruitment. That is to say, the abovesaid State Act 19 of 2008,

does not, in any manner, deal with other methods of appointment

like promotion, by-transfer, etc.

23. The relevant provisions of the Kerala Devaswom

Recruitment Board Act, 2015 and the Rules framed thereunder:-

The Kerala Devaswom Recruitment Board Act, 2015
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(State Act 16 of 2015) has been deemed to have come into force

on 1st March, 2014. The preamble to the said Act makes it clear

that the said enactment has been made to "provide for

constitution of an autonomous Devaswom Recruitment Board

for preparing select list of candidates for the appointments

in various posts other than hereditary posts and the posts in

the aided educational institutions in Devaswom Boards of the

State of Kerala and for matters Connected therewith or

incidental thereto (emphasis supplied)".
Section 2(b)
defines

Devaswom Board to mean the Travancore Devaswom Board or

the Cochin Devaswom or the Malabar Devaswom Board or

Guruvayoor Devaswom Managing Committee or

Koodalmanikyam Devaswom Managing Committee.
Section 2(a)

defines "Board" to mean "the Kerala Devaswom Recruitment

Board constituted under
Section 3
of the said Act."
Section 2(g)

defines "prescribed" to mean 'prescribed by the Rules or

Regulations made under that Act."

24. The constitution of the Kerala Devaswom Recruitment

Board is dealt with in
Section 3
thereof. The functions and powers
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of the Recruitment Board are dealt with in Chapter III of the said

Act.
Sec.9
, appended under Chapter III, deals with functions of the

Recruitment Board and the same provides 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 the Devaswom Board,
the Board shall prepare select list for the appointment of
candidates to various posts other than the herideary posts and
posts in the aided educational institutions in the Devaswom Boards as
per the provisions of this Act, Rule and Regulations ;

(ii) to invite applications, to conduct written examination or
interview or written examination and interview to prepare select
list for selection to the various posts other than the heciditary 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 candidates who
had submitted applications and prepare list, 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 for the said purpose;

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(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 circumstances of conducting
exarminations 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
may be prescribed.

(5) The Board may issue general direction to the Devaswom Boards
incidental to the functions of the Board and as are necessary for the
conduct the examinations.

(6) It shall be the duty of the Board to furnish the select list to the
Devaswom Board and advise to the candidate prepared in the manner
as may be prescribed."

(emphasis supplied)

25.
Section 18
of the Act deals with the power to frame Rules.

Section 18(1)
stipulates that the Government may, by way of

notification in the Gazette, make Rules, either prospectively or

retrospectively, for carrying out the purpose of the Act.
Section 18(2)

further provides that, in particular and without prejudice to the

generality of the aforementioned powers, such Rules may provide for

all or any of the matters mentioned thereunder and Clause (a) and

Clause (c) of
Section 18(2)
deals with the procedure for the proper

conduct of examination under
Section 9(4)
, etc. Clause (f) of
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Section 18(2)
empowers framing of Rules, regarding reservation to

be followed at the time of preparation of select list to various posts

in the Devaswom Board.

26. The Kerala Devaswom Recruitment Board Rules, 2015

has been framed by the State Government under Section 18 of the

Kerala Devaswom Recruitment Board Act, 2015 and the said Rules

2015 has been notified, as per SRO No.352/2015, in Kerala Gazette

Extraordinary No.1303 dated 30.05.2015. Rule 2(a) thereof defines

"advice list" to mean candidates drawn from the select list and

arranged on the basis of the rules of recruitment, relating to the

post in respect of the vacancies reported from time to time. Rule

2(b) defines 'examinations' to mean written examination, practical

examination, physical efficiency test, oral test (interview) and any

other test or examination, which the Board may deem fit to hold.

Rule 2(e) defines 'hereditary post' and reference thereto may not

be necessary as we are not concerned with that aspect. Rule 2(h)

defines "select list" to mean list of candidates arranged in the order

of merit, either on the basis of examiniation, or interview or by

both. Rule 3 deals with the appointment to various posts, except
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hereditary posts under various Devaswoms. Rule 3(2) deals with

reservation and rotation for direct recruitments. The Rules have

been amended subsequently as per SRO No.905/2019, published

in Kerala Gazette dated 18.11.2019 for introducing provisions for

community reservation under Rule 2. We are not concerned with

those aspects and hence there is no necessity for us to extract Rule

3(2) and its proviso. The important provisions of Rule 3 which are

relevant for the present circumstances are those contained in Sub-

rules (1) & (3) thereof, which reads as follows:-

"3. Appointments to various posts except
hereditary posts under various Devaswoms:-(1) The Board
shall have the power to prepare select list for the appointment
of candidates in various posts except hereditary posts coming under
the various Devaswom Boards and managing Committees.

(2) xxx xxx xxx xxx

(3) The candidates for appointment to the selection categories and
grades of the service shall be chosen by the [departmental
promotion committee] constituted by the Board. The
Departmental Promotion Committee shall consist of one member from
the Board as Chairman, member of the Devaswom Board as member
and Convener and a member nominated by the Government]
(emphasis
supplied)"

27. Chapter II of the Rules deals with conduct of

examination. Rule 7 under Chapter II gives the various provisions

contained for regulating procedure for conducting examination.

Rule 7 reads as follows:-

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"7. Procedure for conduct of examination.- (1)
The Board may conduct all the following examinations to assess
the merits of candidates considered for recruitment to a service
or post:

(i) Written Examination (except for the posts of Driver and
Part time Sweeper);

(ii) Practical Test;

(iii) Physical Efficiency Test;

(iv) Oral Test (interview) (marks shall be as fixed by the Board
but shall not exceed 10 percentage of the total marks)

(v) Any other test or examination which the Board may deem
fit to hold."

28. The legal position settled by leading case laws rendered

by the Apex Court on selection posts, in promotion on the basis of

merit and ability/merit cum suitability criteria:-

Now it may be pertinent to refer to some of the leading case

laws rendered by the Apex Court, on the concept of selection

process in promotion based on the criteria of merit and

ability/merit cum suitability. It is also pertinent to refer to the

concept of selection posts and non-selection posts in promotion of

in-service candidate. In Sant Ram Sharma v. State of

Rajastan & Ors. [AIR 1967 SC 1910], the Apex Court has pointed

out that the principle of seniority ensures absolute objectivity by

requiring all promotions to be made entirely on the ground of

seniority and that if a post falls vacant, it is filled by the person who

has served longest in the post immediately below. But that the
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seniority is so objective that it fails to take any account of personal

merit and it is fair to every official, except the best ones; an official

has nothing to win or lose, provided he does not actually become so

inefficient that disciplinary action has to be taken against him. It

was also held therein that, the criteria of merit, on the other hand,

lays stress on meritorious performance, irrespective of seniority,

and even a person, though junior, but much far meritorious than

his seniors, is selected for promotion. The Court has expressed the

view that, there should be a correct balance between seniority and

merit in a proper promotion policy and that the criteria of

seniority-cum-merit and merit-cum-seniority, which takes into

account the seniority as well as merit, seeks to achieve such a

balance, etc.

29. The Apex Court in the celebrated decision in
Union of

India v. Mohan Lal Capoor & Ors.
[AIR 1974 SC 87 = (1973) 2

SCC 836], has observed in para No.17 thereof that, merit is

certainly an elusive factor, capable of being judged very differently

from different angles, or, by applications of varying tests of it by

different persons, or, by the same persons, at different times. The
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Apex Court noted the contention that to make supposed merit the

sole criteria for selection would be to leave the door wide open for

nepotism to creep into selections for higher rungs of public service

by promotion and that this would undermine the morale of

members of the State services and weaken incentives for honest

work and achievement of better standards of proficiency by them.

However, in para.18 of
the said decision
, the Apex Court has relied

on the observations from Leonard D.White's "Introduction to

Public Administration" (4th edn.
Pages 380, 383), cited with

approval by the Apex Court in the earlier decision in Sant Ram

Sharma's case supra [AIR 1967 SC 1910], wherein it was held as

follows:-

"The principal object of a promotion system is to secure
the best possible incumbents for the higher positions, while
maintaining the morale of the whole organisation. The main
interest to be served is the public interest, not the personal
interest of members of the official group concerned. The public
interest is best secured when reasonable opportunities for
promotion exist for all qualified employees, when really
superior civil servants are enabled to move as rapidly up the
promotion ladder as their merits deserve and as vacancies
occur, and when selection for promotion is made on the sole
basis of merit. For the merit system ought to apply as
specifically in making promotions as in original recruitment.

* * * * *

Employees often prefer the rule of seniority, by which the
eligible longest in service is automatically awarded the
promotion. Within limits, seniority is entitled to consideration
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as one criterion of selection. It tends to eliminate favouritism
or the suspicion thereof; and experience is certainly a factor in
the making of a successful employee. Seniority is given most
weight in promotions from the lowest to other subordinate
positions. As employees move up the ladder of responsibility,
it is entitled to less and less weight. When seniority is made
the sole determining factor, at any level, it is a dangerous
guide. It does not follow that the employee longest in service
in a particular grade is best suited for promotion to a higher
grade; the very opposite may be true."

30. Some of the leading case laws on the abovesaid issues

would now be examined :-

(
i) Union of India v. Mohan Lal Capoor & Ors
.

[(1973) 2 SCC 836 = AIR 1974 SC 87]

The scope and ambit of the provision contained in
Regulation

5(2)
of the Indian Police Service (Appointment by Promotion)

Regulations, 1955 regarding the criteria of promotion on the basis

of merit-cum-suitability has been considered in
the said decision
.

Regulation 5(2)
of the IPS (Appointment by Promotion)

Regulations, 1955 mandates that the selection for inclusion in the

select list shall be based on merit and suitability in all respects with

due regard to seniority, etc. In para.37 of Mohan Lal Capoor's

case supra [(1973) 2 SCC 836], it was further held that
Regulation

5(2)
says that the selection for inclusion in the list shall be based

on merit and suitability in all respects with due regard to seniority
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and what it means is that, for inclusion in the select list, merit and

suitability in all respects should be the governing consideration

and that seniority should play only a secondary role and that it is

only when merit and suitability are roughly equal that seniority will

be a determining factor, or, if it is not fairly possible to make an

assessment inter se of the merit and suitability of two eligible

candidates and come to a firm conclusion, seniority would tilt the

scale. The Apex Court held in para.22 thereof that the correct view,

in conformity with the plain meanings of words used in the above

Rules is that, the 'entrance' or 'inclusion' test, for a place on the

select list, is competitive and comparative and applied to all eligible

candidates and not minimal, like pass marks at an examination.

That the Selection Committee has an unrestricted choice of the best

available talent, from amongst eligible candidates, determined by

reference to reasonable criteria applied in assessing the facts

revealed by service records of all eligible officers so that merit and

not merely seniority is the governing factor. That a simple reading

of
Regulation 5(2)
clearly indicates this to be the correct view and

that the required number has thus to be selected by a comparison
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of merits of all the eligible candidates of each year and in making

this selection, seniority must play its due role. Seniority would,

however, only be one of the several factors affecting assessment of

merit as comparative experience in service should be. It may be

pertinent to refer to the contents of paras 37 & 22 of the decision of

the Apex Court in
Mohan Lal Capoor
's case supra [(1973) 2

SCC 836], which read as follows: -

" 37. And, when
Regulation 5(2)
says that the
selection for inclusion in the list shall be based on merit and
suitability in all respects with due regard to seniority, what
it means is that for inclusion in the list, merit and suitability
in all respects should be the governing consideration and
that seniority should play only a secondary role. It is only
when merit and suitability are roughly equal that seniority
will be a determining factor, or, if it is not fairly possible to
make an assessment inter se of the merit and suitability of
two eligible candidates and come to a firm conclusion,
seniority would tilt the scale. But, to say, as the High Court
has done, that seniority is the determining factor and that it
is only if the senior is found unfit that the junior can be,
thought of for inclusion in the list is, with respect, not a
correct reading of
Regulation 5(2)
. I do not know what the
High Court would have said had
Regulation 5(2)
said:

"Selection for inclusion in the select list shall be based on seniority
with due regard to merit and suitability". Would it have said that
the interpretation to be put upon the hypothetical sub-
regulation (2) is the same as it put upon the actual sub-
regulation?"

" 22. Thus, we think that the correct view, in
conformity with the plain meanings of words used in the
relevant Rules, is that the "entrance" or "inclusion" test for a
place on the select list, is competitive and comparative
applied to all eligible candidates and not minimal like pass
marks at an examination. The Selection Committee has an
unrestricted choice of the best available talent, from
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amongst eligible candidates, determined by reference to
reasonable criteria applied in assessing the facts revealed
by service records of all eligible candidates so that merit
and not mere seniority is the governing factor. A simple
reading of the
Regulation 5(2)
clearly indicates this to be
the correct view. The required number has thus to be
selected by a comparison of merits, of all the eligible
candidates of each year. But, in making this selection,
seniority must play its due role. Seniority would, however,
only be one of the several factors affecting assessment of
merit as comparative experience in service should be. There
could be a certain number of marks allotted, for purposes of
facilitating evaluation, to each year of experience gained in
the service. When the required number for the list is thus
chosen, the respective roles of seniority and exceptional
merit would be governed by
Regulation 5(3)
. This seems to
be the correct interpretation of rules as they stand."

(
ii) Union of India & Ors. v. Lt.Gen.Rajendra Singh Kadyan
& anr
.

[(2000) 6 SCC 698]

In
the above decision
, the Apex Court has dealt with various

aspects relating to the different criteria for promotion depending

upon the nature of the post and requirements of the service and

that such criteria would broadly fall into three categories, namely,

1. seniority-cum-fitness,

2. seniority-cum-merit,

3. merit-cum-suitability with due regard to seniority.

It has also been held therein that in deciding whether a post

is a selection post or not, one of the criteria to be considered is that

if it involves a comparative assessment of officers, then necessarily
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the element of selection is involved. It was held therein that there

is no requirement of assessment of comparative merit, both in the

case of seniority-cum-fitness and seniority-cum-merit. Whereas,

the criteria based on merit-cum-suitability, with due regard to

seniority, as prescribed in the case of promotion to higher posts,

etc., necessarily involves assessment of comparative merit of all

eligible candidates and selecting the best out of them. In para.11 of

the said decision
, the Apex Court has held that broadly, the criteria

for promotion may fall into three categories, namely,

1. seniority-cum-fitness,

2. seniority-cum-merit,

3. merit-cum-suitability with due regard to seniority.

In para.12 thereof, it has been held by the Apex Court that,

wherever fitness is stipulated as the basis of selection, it is

regarded as a non-selection post, to be filled on the basis of

seniority, subject to rejection of the unfit and that fitness means

fitness in all respects. Further that, seniority-cum-merit

postulates the requirement of certain minimum merit or satisfying

a benchmark previously fixed and subject to fulfilling this
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requirement of minimum merit, the promotion is based on

seniority. That there is no requirement of assessment of

comparative merit both in the case of seniority-cum-fitness and

seniority-cum-merit, as even for the latter, what is involved is only

assessment of minimum merit and promotion based on seniority

from amongst those incumbents, who have the minimum merit. It

will be pertinent to refer to para.12 of
Lt.Gen.Rajendra Singh

Kadyan
's case supra [(2000) 6 SCC 698], which reads as

follows:-

"12. Wherever fitness is stipulated as the basis of selection, it
is regarded as a non-selection post to be filled on the basis of
seniority subject to rejection of the unfit. Fitness means fitness
in all respects. "Seniority-cum-merit" postulates the
requirement of certain minimum merit or satisfying a
benchmark previously fixed. Subject to fulfilling this
requirement the promotion is based on seniority. There is no
requirement of assessment of comparative merit both in the
case of seniority-cum-fitness and seniority-cum-merit. Merit-
cum-suitability with due regard to seniority as prescribed in
the case of promotion to All-India Services necessarily involves
assessment of comparative merit of all eligible candidates, and
selecting the best out of them."

The Apex Court in para.20 of
the said decision
considered

the said argument that the appointment to the post of Army

Commander is of selection and not a mere promotion on the basis

of seniority. Whereas, the Union of India argued that appointment
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to the post of Army Commander is a selection post and not a post

to be filled up by promotion merely on the basis of seniority. The

Apex Court, after consideration of the norms, held that the clear

indication is that it is a selection post and not a mere promotion

on the basis of seniority, etc. Further, it has been specifically held

by the Apex Court, in para.26 of
the above decision
, that in

deciding whether a post is a selection post or not, one of the

criteria to be considered is if it involves a comparative assessment

of officers, then necessarily an element of selection is involved and,

therefore, the post is a selection post, etc. In the said case, the

contention was raised before the Apex Court that the hierarchy in

the Army and the method of selection and promotion to various

posts, starting from the post of Lieutenant and going up to the post

of the Chief of the Army Staff, will clearly indicate that the posts of

Lieutenant, Captain and Major are automatic promotion posts, on

passing the promotion examination, irrespective of inter se merit,

whereas the posts from Major to Lt.Colonel to Colonel, Colonel to

Brigadier, Brigadier to Major General and Major General to

Lt.General are all selection posts filled up by promotion on the
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basis of relative merit assessed by the designated Selection Boards.

But it was contended that the post of Lt. General (Corps

Commander) to Army Commander, is a non-selection post to

which promotion is made, subject to fitness and that it is only a

promotion, subject to fitness in all respects, although the rank

remains the same, etc.

(
iii) B.V.Sivaiah & Ors. v. K.Addanki Babu & Ors
.

[(1998) 6 SCC 720]

In the abovesaid decision, the Apex Court has considered the

case of promotions, where the criteria is based on seniority-cum-

merit and merit-cum-seniority. It has been held in paras.9 & 10

thereof, that the principle of "merit-cum-seniority" lays greater

emphasis on merit and ability and seniority plays a less significant

role and seniority is to be given weight only when merit and ability

are approximately equal. On the other hand, as between the two

principles of seniority and merit, the criteria of seniority-cum-

merit lays greater emphasis on seniority, but an officer cannot

claim promotion, as a matter of right, by virtue of his seniority

alone and if he is found unfit to discharge the duties of the higher

post, he may be passed over and an officer junior to him may be
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promoted. It may be pertinent to refer to the contents of paras.9,

10 & 11 of the decision of the Apex Court in
B.V.Sivaiah
's case

supra [(1998) 6 SCC 720], which read as follows:-

"9. The principle of "merit-cum-seniority" lays greater emphasis
on merit and ability and seniority plays a less significant role.
Seniority is to be given weight only when merit and ability are
approximately equal.
In the context of Rule 5(2) of the Indian
Administrative Service/Indian Police Service (Appointment by
Promotion) Regulations, 1955 which prescribed that "selection for
inclusion in such list shall be based on merit and suitability in all
respects with due regard to seniority" Mathew, J. in
Union of India
v. Mohan Lal Capoor
[(1973) 2 SCC 836 : 1974 SCC (L&S) 5] has
said: (SCC p. 856, para 37)

"[F]or inclusion in the list, merit and suitability in all
respects should be the governing consideration and that
seniority should play only a secondary role. It is only when
merit and suitability are roughly equal that seniority will be
a determining factor, or if it is not fairly possible to make an
assessment inter se of the merit and suitability of two eligible
candidates and come to a firm conclusion, seniority would
tilt the scale."

Similarly, Beg, J. (as the learned Chief Justice then was) has said:

(SCC p. 851, para 22)
"22. Thus, we think that the correct view, in conformity
with the plain meaning of words used in the relevant Rules, is
that the 'entrance' or 'inclusion' test for a place on the select
list, is competitive and comparative applied to all eligible
candidates and not minimal like pass marks at an
examination. The Selection Committee has an unrestricted
choice of the best available talent, from amongst eligible
candidates, determined by reference to reasonable criteria
applied in assessing the facts revealed by service records of
all eligible candidates so that merit and not mere seniority is
the governing factor."

10. On the other hand, as between the two principles of
seniority and merit, the criterion of "seniority-cum-merit" lays
greater emphasis on seniority.
In
State of Mysore v. Syed
Mahmood
[AIR 1968 SC 1113 : (1968) 3 SCR 363 : (1970) 1 LLJ
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370] while considering Rule 4(3)(b) of the Mysore State Civil
Services General Recruitment Rules, 1957 which required
promotion to be made by selection on the basis of seniority-
cum-merit, this Court has observed that the Rule required
promotion to be made by selection on the basis of "seniority
subject to the fitness of the candidate to discharge the duties of the
post from among persons eligible for promotion". It was pointed
out that where the promotion is based on seniority-cum-merit,
the officer cannot claim promotion as a matter of right by
virtue of his seniority alone and if he is found unfit to
discharge the duties of the higher post, he may be passed over
and an officer junior to him may be promoted.

11.
In
State of Kerala v. N.M. Thomas
[(1976) 2 SCC 310 :

1976 SCC (L&S) 227] A.N. Ray, C.J. has thus explained the
criterion of "seniority-cum-merit": (SCC p. 335, para 38)
"With regard to promotion the normal principles
are either merit-cum-seniority or seniority-cum-merit.
Seniority-cum-merit means that given the minimum
necessary merit requisite for efficiency of
administration, the senior though the less meritorious
shall have priority."

The said decision dealt with the norms for promotion to post

covered by the Regional Rural Banks (Appointment & Promotions

of Officers and Other Employees) Rules, 1988. Rule 7 thereof dealt

with promotions to the post of Area Managers and Senior

Managers and it was stipulated therein that the source of

recruitment would be 100% by promotion from amongst

confirmed officers working in the bank and promotions will be on

the basis of 'seniority-cum-merit'. Rule 7(c) dealt with mode of

selection and it has been mentioned therein that the mode will be
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interview and assessment of performance reports for the preceding

three years' period as officer for promotion. The Apex Court has

categorically held in para.18 of
the said decision
that the criterion

of "seniority-cum-merit" in the matter of promotion postulates

that given the minimum necessary merit requisite for efficiency of

administration, the senior, even though less meritorious, shall have

priority and a comparative assessment of merit is not required to

be made. That for assessing the minimum necessary merit, the

competent authority can lay down the minimum standard that is

required and also prescribe the mode of assessment of merit of the

employee who is eligible for consideration for promotion and such

assessment can be made by assigning marks on the basis of

appraisal of performance on the basis of service record and

interview and prescribing the minimum marks which would entitle

a person to be promoted on the basis of seniority-cum-merit. It

was held therein that once the incumbents possess the requisite

minimum merit so assessed, then seniors will have to be promoted

for promotion, where the criteria is 'seniority-cum-merit'. On

facts, the Apex Court held in many of the decisions dealt with
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therein that the methodology adopted by the promotion authority,

to rate the officers on the basis of their performance in the merit

assessment, would be completely contrary to the principle of

"seniority-cum-merit" and it virtually amounts to application of the

principle of "merit-cum-seniority", etc.

(
iv) Harigovind Yadav v. Rewa Sidhi Gramin Bank &
Ors
.

[(2006) 6 SCC 145]

This case also dealt with promotion for employees of the

1st respondent-Bank therein, which was governed by the Regional

Rural Banks (Appointment & Promotions of Officers and Other

Employees) Rules, 1988. Para.3 of
the said decision
would indicate

that promotion quota is 50% and promotion shall be on the basis

of seniority-cum-merit from amongst the eligible and the feeder

category and 50% is for direct recruitment, for which the mode of

selection is written test and interview.

In this case, the Apex Court

has relied on the earlier decision rendered in
B.V.Sivaiah
's case

supra [(1998) 6 SCC 720].

The Apex Court in
Harigovind

Yadav
's case supra noted in para.21 thereof that this Court in the

earlier decision in
B.V.Sivaiah
's case supra did not accept the
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promotion policy contained in the impugned circular therein as

being in consonance with the principle of merit-cum-seniority

mandated in the Rules. The Apex Court held that the policy which

did not prescribe a minimum standard for assessing merit and

which promoted candidates on the basis of comparative merit, with

reference to total marks obtained by the eligible candidates,

followed the merit-cum-seniority principle and not the prescribed

seniority-cum-merit norms. In para.22 of Harigovind Yadav's

case supra, it was held by the Apex Court that the interviews can

be held and assessment of performance can be made by the

employer in connection with promotions. But that can be only to

assess the minimum necessary merit, where the criterion for

promotion is seniority-cum-merit. But where the procedure does

not provide the minimum standard for promotion, but only the

minimum standard for interview and effects the selection with

reference to comparative marks, it was held to be contrary to the

rule of "seniority-cum merit". It was also held therein that the law

laid down earlier by the Apex Court in
B.V.Sivaiah
's case supra

[(1998) 6 SCC 720] has been subsequently followed and reiterated
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in the case in
Sher Singh v. Surinder Kumar
[(1998) 9 SCC

652], wherein the Apex Court had occasion to consider a similar

question relating to the promotion for the post of Clerk to Field

Supervisor in the case of another Gramin Bank. In Sher Singh's

case supra, the Apex Court held that the criterion for making

promotion from the post of Clerk to that of Field Supervisor was

seniority-cum-merit, but the Bank had not followed the criterion of

seniority-cum-merit, but made promotions on the basis of merit-

cum-seniority and that the promotion was vitiated and was

therefore invalid.

The Apex Court again reiterated in para.23 of

Harigovind Yadav
's case supra that
in that case
where the Rule

mandated promotion on the basis of seniority-cum-merit, the

procedure followed therein, of making promotion on the basis of

gradation in the marks secured in the interview was held to be

contrary to the prescribed criteria of seniority-cum-merit, etc.

(
v) Sarat Kumar Dash & Ors. v. Biswajit Patnaik & Ors
.

[1995 Supp (1) SCC 434]

In this case, the Apex Court dealt with the criteria of

promotion on the basis of merit-cum-suitability and the role of

seniority was also considered and it was held that where after
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consideration and evaluation, merit and suitability were found to

be superior, then seniority was held to have no role to play in the

selection.
In para.8 of
Sarat Kumar Dash
's case supra, the

Apex Court held that, in the case of merit-cum-suitability, seniority

should have no role to play, when the candidates were found to be

meritorious and suitable for higher posts and in such a case, even a

juniormost personnel may steal a march over his seniors and jump

the queue for accelerated promotions. That this principle of

merit-cum-suitability inculcates dedicated service and accelerates

ability and encourages merit to improve excellence. That, seniority

would have its due place only where merit and ability are

approximately equal or where it is not possible to assess the inter

se merit and suitability of two equally eligible competing

candidates, who come very close in the order of merit and

suitability. Under those circumstances, seniority will have its due

role and it will be called in aid for consideration. But in case where

the relative merit and suitability or ability have been considered

and evaluated and found to be superior, then seniority has no role.

In that case, the Apex Court held that there the promotion
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was to be made under the principle of merit-cum-suitability with

due regard to seniority and there are no statutory rules. Then,

awarding of the marks by the PSC on the basis of grading of

confidential records for a certain number of years, six years
in that

case
, preceding the time of selection, was held to be valid and that

in such grading it was not incumbent on the PSC to state reasons for

the recommendations it made or on the Government for accepting

those recommendations.

In para.7 of
Sarat Kumar Dash
's case

supra, the Apex Court has relied on the dictum laid down earlier by

the Apex Court in the celebrated
Mohan Lal Capoor
's case supra

[(1973) 2 SCC 836 para.37].

It will be pertinent to refer to the

contents of paras.8, 9 & 11 of the decision of the Apex Court in

Sarat Kumar Dash
's case supra, which read as follows:-

"8. In case of merit-cum-suitability, the seniority should have
no role to play when the candidates were found to be
meritorious and suitable for higher posts. Even a juniormost
man may steal a march over his seniors and jump the queue
for accelerated promotion. This principle inculcates dedicated
service, and accelerates ability and encourages merit to
improve excellence. The seniority would have its due place only
where the merit and ability are approximately equal or where
it is not possible to assess inter se merit and the suitability of
two equally eligible competing candidates who come very close
in the order of merit and ability. Under those circumstances,
the seniority will play its due role and calls it in aid for
consideration. But in case where the relative merit and
suitability or ability have been considered and evaluated, and
found to be superior, then the seniority has no role to play. In
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our view the PSC has evolved correct procedure in grading the
officers and the marks have been awarded according to the
grading. It is seen that the four officers have come in the
grading of 'B'. In consequence, the PSC had adopted the
seniority of the appellants and Panda in the lower cadre in
recommending their cases for appointment in the order of
merit.

9. Mr Mehta, the learned counsel for the respondent-
J.P.Mishra contended that the PSC itself has evolved grading
of outstanding, very good, good, satisfactory, average etc.
from C Rs which is not open to the PSC to evolve grading. We
cannot accept that contention to be correct. Firstly, this
contention was not raised in the Tribunal and secondly, from
the file produced before us by the PSC, it is clear that they have
seen the grading was given by the Government and they
evolved the criteria of giving marks on the basis of the grading
given by the Government. With regard to the merit and ability
this Court has consistently been following the view as extracted
herein from
Capoor
case [(1973) 2 SCC 836 : 1974 SCC (L&S)
5 : (1974) 1 SCR 797] in other decisions vide
R.S. Dass v. Union
of India
[1986 Supp SCC 617 : (
1987) 2 ATC 628], National
Institute of Mental Health & Neuro Sciences v. Dr K. Kalyana
Raman
[1992 Supp (2) SCC 481, para 7 : 1992 SCC (L&S) 959 :

(1992) 21 ATC 680 : AIR 1992 SC 1806] and Syed Khalid Rizvi
v. Union of India [1993 Supp (3) SCC 575, 584-86 (paras 8 and

9) : 1994 SCC (L&S) 84 : (1994) 26 ATC 192] .

10. ......................

XXX XXX XXX

XXX XXX XXX

11. The next question is whether omission to record reasons
amounts to violation of the principles of natural justice. The
principle of audi alteram partem is a basic concept of the
principle of natural justice. The omnipotency inherent in the
doctrine is that no one should be condemned without being
heard or given an opportunity to the person affected to present
his case before taking the decision or action. In the field of
administrative action, this principle has been applied to ensure
fair play and justice to the affected person. However, the
doctrine is not a cure to all the ills in the process. Its
application depends upon the factual matrix to improve
administrative efficiency and expediency and to meet out
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justice. The procedure adopted would be just and fair. The
reasons are links between maker of the order or the author of
the decision and the order itself. The record is called to
consider whether he has given due consideration to the facts
placed before him before he arrives at the decision. Therefore,
the reasons in the order or found from the record bridges the
link between the maker of the order and the order itself or
decision. Therefore the natural justice is not a rigid nor an
inflexible rule. It should be applied to a given fact situation,
depending upon the background of the statutory provisions,
nature of the right which may be affected and the
consequences that may entail. It is already seen that the
Commission evolved the objective criteria in awarding marks
to the given grading of the candidates and on its basis
recommended their cases for promotion.
In
R.S. Dass
case
[1986 Supp SCC 617 : (1987) 2 ATC 628] this Court held that
the grading itself is a reason and no separate reasons in that
behalf in arranging the order of merit need be given. The
grading is to obviate the need to record reasons. The finding of
the Tribunal that the selection by PSC without recording
reasons or need to record separately the reasons for evolving
the criteria for selection is also clearly illegal."

(
vi) Union of India & Ors. v. Chetan S.Naik

[(1999) 6 SCC 457]

In this case, the Three Judge Bench of the Apex Court

considered the issue as to how inference can be made when the

relevant rule mentions "promotion" as the criterion. The

Recruitment Rules
in that case
had used three different

expressions, viz. "selection", "promotion-cum-fitness"and

"promotion". It was held therein that "promotion" criterion could

not be given the same meaning as "selection" criterion. That

comparative assessment of merit, which is applied in the case of
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"selection" criterion was inapplicable in the case of "promotion"

criterion. In "promotion" criterion, promotion was to be given on

the basis of seniority, subject to the candidate's fitness. It will be

pertinent to refer to the contents of paras.3 to 5 of
the said decision

of the Apex Court in
Chetan S.Naik
's case supra [(1999) 6 SCC

457], which reads as follows:-

" 3. On a plain interpretation of the word "promotion"

occurring in Rule 7(2) in regard to 50% and the words
"promotion" at Serial Nos. 3, 4 and 5 of Schedule IV and
Schedule V, it is clear that for the 50% JTS posts at Serial No.
5, the appointment is by "promotion" while for appointment
to the post at Serial No. 3, it is by "selection" and for
appointment to posts at Serial No. 4 it is by "promotion-cum-
fitness". Thus for the appointment at these three levels, the
rule-making authority has used different and distinct words,

-- "selection", "promotion-cum-fitness" and "promotion" and
that indicates that the word "promotion" at Serial No. 5 for
JTS posts is not to be given the same meaning as "selection" at
Serial No. 3. In other words, for appointment to posts in JTS
at Serial No. 5, no selection by assessment of comparative
merit is contemplated either in the rules or in Schedule IV and
Schedule V.

4. The Full Bench at Madras and the Jaipur Bench
have relied upon Note 2 below Schedule IV and Schedule V to
hold that even for JTS posts at Serial No. 5, appointment is by
"selection". It is no doubt true that Note 2 uses the words
"field of selection" but that, in our opinion, is meant for the
purpose of considering the "options" to be exercised by those
in the feeder category -- choice is to "opt" for being allocated
to the Management or the Programme wings of JTS posts --
but the "selection" process under Note 2 is limited to
considering the suitability of those in the feeder category to
be allocated either to the "Programme Wing" or to the
"Production Wing", as the case may be, among the JTS posts.
The DPC's role is, thus, limited to the selection of the
promotees for either of these two wings. That note, in our
view, has no bearing on the meaning of the word "promotion"
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in Rule 7(2) or on the word "promotion" at Serial No. 5 in
Schedules IV and V.

5. Keeping in view the relevant rules, we, thus, find
that the view taken by the Ernakulam Bench is the correct
view in the sense that the method of promotion to JTS posts is
on the basis of promotion by seniority, subject to finding out
the fitness of the candidate for the Programme Wing or the
Production Wing, through the DPC. The Karnataka Bench,
therefore, rightly followed the Ernakulam Bench decision.
We, therefore, do not see any reason to interfere in the two
special leave petitions. As a consequence, the Full Bench view
of the Madras Tribunal in OA No. 1221 of 1994 cannot be said
to be laying down the correct law."

31. Resolution of the main issues in this case:

As indicated hereinabove, the main issue to be decided in

this case is as to whether appointments to all posts in the

Devaswom Board (other than the hereditary post and posts in the

aided educational institutions in the Devaswom Boards), can be

filled up only on the basis of the junction and involvement of the

Kerala Devaswom Recruitment Board, irrespective as to whether

the method of appointment is direct recruitment, promotion or by-

transfer, etc., in view of the non-obstante clause contained in

Sec.9(1)(i) of the Kerala Devaswom Recruitment Act, 2015 or

whether the said role and function of the Devaswom Recruitment

Board is confined only to selection for appointment to posts to be

filled up by the method of appointment through 'direct
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recruitment'. We would answer these crucial issues in the light of

the discussion made hereinabove about the provisions contained

in the
Guruvayoor Devaswom Act, 1978
, the Guruvayoor

Devaswom Employees Regulations, 1983, the Kerala Devaswom

Recruitment Board Act, 2015, the Kerala Devaswom Recruitment

Board Rules, 2015 and also with reference to the case laws

discussed hereinabove. One of the main contentions raised by the

appellants is that the Division Bench of this Court, as per para.60

of the judgment dated 31.08.2017 in W.A No.481/2016 &

connected appeals (
K.Ajitha
's case supra), has already held that,

in view of the abovesaid non-obstante provision contained in

Sec.9(1)(i) of the Kerala Devaswom Recruitment Board Act, 2015,

irrespective as to the provisions contained in the
Guruvayoor

Devaswom Act
or the Guruvayoor Devaswom Employees

Regulations, after commencement of the Kerala Devaswom Board

Act, 2015, recruitment to various devaswoms in Kerala can be

effected only through the machinery under the Kerala Devaswom

Recruitment Act, 2015. Hence, it is contended by the appellants

that all appointments, irrespective as to whether the method of
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appointment is direct recruitment, promotion or by-transfer,

to various posts in the Devaswoms can be effected only

through the involvement and junction of the Kerala

Devaswom Recruitment Board as to the provisions of the

said Recruitment Board Act, 2015 and the Rules framed

thereunder, etc.

32. At the outset, we note that the main factual issue,

raised in the said cases considered in
K.Ajitha
's case supra,

was regarding temporary appointments made by the

Guruvayoor Devaswom, instead of the regular method of direct

recruitment, in lieu of the regular selection by direct

recruitment and the subsequent claim made by such temporary

employees for regularization in the service. So, essentially the

method of appointment involved in those cases was direct

recruitment. No dispute whatsoever has been raised in the

present cases that the method of appointment, to fill up the post is

by methods other than direct recruitment.

33. After hearing both sides and after going through

the said judgment
of the Division Bench of this Court in
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K.Ajitha
's case supra, we are of the view that the

abovesaid aspect regarding selection by direct recruitment

alone has been considered in
the said judgment
and the

present issue as to whether other methods of appointment

like promotion, by-transfer, etc., should also involve the

Devaswom Recruitment Board, has not been directly raised

and decided in
K.Ajitha
's case supra.

34. A subsequent judgment rendered by a

Division Bench of this Court on 10.11.2020 in W.P.(C)

No.16530/2020 & W.P.(C) No.12652/2020 has been produced

as Ext.P-5 in the instant W.P.(C). A reading of para.3 of

Ext.P-5 judgment would indicate that the Division Bench

has observed therein that the Kerala Devaswom Recruitment

Board (3rd respondent therein) was established in the year

2015 and promotion to the posts above Assistant Manager

are presently entrusted with them (i.e. with the said

Recruitment Board). That is only an incidental observation

made by the Division Bench and the issue as to whether all
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promotions and by-transfers, including to selection posts and non-

selection posts, can also be effected only through the involvement

of the Devaswom Recruitment Board, has not been directly raised

and decided in Ext.P-5 judgment. The issue that was directly and

substantially raised and decided in Ext.P-5 writ proceedings, was

as to the manner and methodology of framing regulations under

Sec.39
of the Guruvayoor Devaswom Act, 1978 and as to the scope

and ambit of the process of securing approval of the State

Government to the regulations that are to be framed by the

Managing Committee of the Guruvayoor Devaswom under

Sec.39
thereof. However, certainly we have to take note that

the Division Bench has already observed, in para.3 of Ext.P-5

judgment in W.P(C) Nos.16530/2020 & 12652/2020, that after the

establishment of the Guruvayoor Devaswom Board, promotions to

the post of above Assistant Managers, have been presently

entrusted with them, etc. This Court will have to certainly give due

weightage to the said observations made by the Division Bench in

para.3 of Ext.P-5 judgment., even though that by itself may not

conclude the issue inasmuch as the issue involved in this case, as
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mentioned hereinabove, has not been directly and substantially

raised and decided in Ext.P-5.

35. After examining the relevant provisions contained in

the
Guruvayoor Devaswom Act, 1978
and the Guruvayoor

Devaswom Employees Regulations, 1983 framed under the said

Act, the following aspects will have to be borne in mind :

36.
Sec.19(1)
of the Guruvayoor Devaswom Act, 1978

mandates that the appointment of all officers and other employees

of the Devaswom shall be made by the Committee mentioned

therein, which is the Guruvayoor Devaswom Managing

Committee, constituted in terms of
Sec.3
of the said Act. True

that, sub-
section 3
of
Sec.19
also stipulates that selection of officers

and other employees of the Devaswom may be made by such

sub-committee constituted by the Guruvayoor Devaswom

Managing Committee from among its members. The proviso

thereto is not relevant for the present purpose.
Sec.19(4)
further

mandates that, subject to the provisions contained in sub-sections

(1), (2) & (3) of the said section, the procedure for the selection and

appointment of officers and other employees of the Devaswom
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shall be such as may be determined by the Managing Committee

by regulations made in that behalf.
Sec.39 (1)
of the Guruvayoor

Devaswom Act, 1978 specifically mandates that the Managing

Committee may, subject to the approval of the Government, make

regulations not inconsistent with the provisions of this Act and the

rules made thereunder, to provide for the manner in which the

duties imposed on it, under the said Act and its functions

thereunder, shall be discharged. Clause (a) of sub-section (2) of

Sec.39
further provides that, in particular, and without prejudice

to the generality of the fore-going power, such regulations may

provide for-

"(a) the conditions of service of the Administrator and the
other officers and employees of the Devaswom;"

37. In the light of the provisions contained in
Sec.19 (4)

&
Sec.39(2)(a)
, the Guruvayoor Devaswom Employees

Regulations, 1983 has been framed with the prior approval of the

State Government. The relevant portion of the said service

regulations is provided at Ext.P-1 in the W.P(C). In this case, we

are mainly concerned with promotion to the post of Manager from

the feeder category of Assistant Manager. We have already
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mentioned about the details of
Regulation 5
&
Regulation 16
in the

earlier portions of this judgment. The combined and cumulative

effect of
Regulation 16
, read with
Regulation 5
, more particularly

the proviso thereto, is that, generally, all promotions or

appointments by transfer shall, subject to the provisions of the

above regulations, be made by the Administrator after obtaining

the approval of the Managing Committee, in accordance with

seniority, subject to the persons being considered suitable for the

post. However, an exception has been carved out by the

engraftment of the proviso to
Regulation 5
, which mandates that

the posts mentioned therein, including the post of Manager, shall

be treated as selection categories and appointments to the

selection category shall be made by the Managing Committee from

amongst members eligible for appointment to such category on the

basis of merit and ability and seniority being considered only

where merit and suitability are approximately equal. So, at the

outset, it has to be held that promotion from the feeder category of

Assistant Manager to the higher category of Manager is the

promotion to a selection post and not to a non-selection post and
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the criterion for such promotion shall be merit and ability and

seniority can be considered only where merit and ability are

approximately equal for the incumbents under consideration.

38. We may also have to refer to some of the provisions

contained in the The Kerala Public Service Commission

(Additional Functions as Respects the Administrative Services

under Devaswom Boards) Act, 2008 (State Act 19 of 2008), which

was later repealed as per Sec.16 of State Act 1 of 2014 made

effective from 03.02.2014. At the outset, it has been mentioned

that only two Devaswom Boards, Travancore Devaswom Board &

Cochin Devaswom Board alone were brought within the selection

purview of the KPSC, as per State Act 19 of 2008. However, a

reference to those provisions would be relevant and germane,

inasmuch as the present Kerala Devaswom Recruitment Board Act,

2015 would bring within its fold not only the abovesaid two

Devaswom Boards, viz., Travancore Devaswom Board and Cochin

Devaswom Board, but certain other Devaswom Boards also,

including the Guruvayoor Devaswom Board. As already discussed

hereinabove, the said State Act 19 of 2008, had brought within its
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selection purview only selection by way of direct recruitment of all

officers and employees of the administrative services of the said

Devaswom Boards concerned. In other words, only selection by

way of direct recruitment of the officers and employees in the

administrative services in the Devaswom Boards concerned alone

were brought in the purview of the said State Act 19 of 2008 and the

other methods of appointments like promotion and by-transfer,

irrespective as to whether it is selection post or non- selection post,

were not brought within the purview of the PSC as per the said

State Act 19 of 2008. We are referring to the said provisions

contained in the said State Act 19 of 2008, which was subsequently

repealed in 2014, only to compare the corresponding provisions

made in the Kerala Devaswom Recruitment Board Act, 2015.

39. The Kerala Devaswom Recruitment Board Ordinance,

2015 (State Ordinance No.5/2015) earlier promulgated, was later

repealed and replaced by the Kerala Devaswom Recruitment Board

Act, 2015 (State Act 16 of 2015).
Sec.1(2)
of the said Act stipulates

that the said Act shall be deemed to have come into force on

1.3.2014. It is clearly mentioned in the beginning portion of said
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Act, that the said Act is to provide for constitution of an

autonomous Devaswom Recruitment Board for preparing select

list of candidates for appointment in various posts other

than hereditary posts and posts in aided educational

institutions in Devaswom Boards of the State of Kerala

and for matters conducted therewith or incidental

thereto.(Emphasis applied) Further, the Preamble to said Act also

categorically declares that, it is expedient to provide for the

constitution of an autonomous Devaswom Recruitment Board for

preparing select list of candidates. The term 'select list'

appearing in the Objective and Preamble of the Act has not been

specifically defined in the said Act. However,
Sec.9(4)
of the Act

inter alia provides that matters of preparation of select list(Emphasis
applied)
to various posts in the Devaswom Board, shall be such

as may be prescribed.(Emphasis applied)
Sec.2(g)
of the Act defines the

word 'prescribed' to mean prescribed by rules or regulations made

under this Act.
Sec.18(2)(c)
explicitly confers power to the State

Government to frame rules regarding the procedure contemplated

under
Sec.9(4)
of the Act. Rule 2(h) of the Kerala Devaswom
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Recruitment Board Rules, 2015, framed by the State Government,

in exercise of the powers under
Sec.18
of the abovesaid Act, defines

'select list' to mean list of candidates arranged in the order of

merit, either on the basis of interview or examination or by both.

So, in the absence of an explicit definition for the term 'select list'

appearing in the Objective and Preamble of the Act as well as in

other provisions as in
Secs.9(1)(i)
,
9(4)
, etc has to be understood in

a more broader sense and perspective than the narrow definition

contained in Rule 2(h) of the Rules, and we would be giving

reasons hereinafter for arriving at the said conclusion. For the

reasons to be stated by us hereinafter, it appears that the

definition of the term 'select list' appearing in Rule 2(h) is within a

very narrow compass, and therefore it has been contended by the

writ petitioners that the term 'select list' will have to be understood

only with reference to the selection process in direct recruitment,

and not in the case of promotions or by-transfer appointments, etc.

Sec.9(1)(i)
provides that the functions conferred on the

Recruitment Board as per the said Act shall be

notwithstanding anything contained in any other Act/
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Rules/Regulations/Orders/Judgments/Decree, in respect of the

appointment of candidates to the posts in the Devaswom Board,

for which the Recruitment Board shall prepare select list for

appointment of candidates to various posts, other than hereditary

posts and posts in aided educational institutions in the Devaswom

Boards, as per the provisions of the said Act, Rules and Regulations

framed thereunder.

40. We have already extracted the full contents of
Sec.9
.

The provisions contained in Sub
Sections 2
&
of
Sec.9
may

broadly indicate that those provisions are mainly dealing with

'examination', that may have to be conducted by the Recruitment

Board, in the context of selection to direct recruitment to various

posts. The term 'examination', appearing in Sub
Sections 1
to
of

Sec.9
, also has not been explicitly defined in the Act. Rule 2(b)

defines 'examination' to include written examination, practical

examination, physical efficiency test, oral test (interview) and any

other test or examination, which the Board may deem fit to hold.

Therefore, the said definition for 'examination', contained in

Rule 2(b) of the Rules, will also reinforce the view that the term
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'examination', referred to in Clauses (ii), (iii) & (iv) of
Sec.9(1)
as

well as Sub
Sections 2
,
&
of
Sec.9
, may be broadly used in the

context of examination to the categories envisaged in Rule 2(b), for

the purpose of conducting selection for direct recruitment to

various categories.

41. In that context, it is also relevant to bear in mind that

Regulation 16
of the Guruvayur Devaswom Employees

Regulations, 1983, framed under
Sec.39
of the Guruvayoor

Devaswom Act, 1978, specifically stipulates, as per Clause (a)

thereof, that probationers working in any post shall be eligible for

promotion to higher post, as per the provisions applicable to the

employees of the State Government. It has been contended by the

writ petitioners that Ext.P-7 is an Administrative Circular

No.1/2016 dated 05..5.2016, issued by the Kerala Devaswom

Recruitment Board, purportedly under the provisions contained in

Sec.9(5) of the Kerala Devaswom Recruitment Board Act, 2015,

and that Clause 5 of Part I of Ext.P-7, states that the criteria for

selection by the Departmental Promotion Committee shall be merit

and ability, by taking into consideration the 3 items mentioned
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thereunder. It may be pertinent to refer to the contents of Clauses

2 to 5 of Part I of Ext.P-7 Administrative Circular, which read as

follows:-

"2. Promotion and appointment by transfer according to merit and
ability.- Selection of candidates for appointment to selection categories
or grades included in category (a) above shall be made by
Departmental Promotion Committee which shall be constituted for
each Devaswom Board.

3. As provided in Rule 3(3) of the Kerala Devasworn Recruitment
Rules, 2015, the Departmental Promotion Committee shall consist of a
Member, Kerala Devaswom Recruitment Board as Chairman, a
Member of the Devaswom Board who is the appointing authority for
the post concerned and a Member nominated by Government. The
Member of the Devaswom Board shall also be the Convener of the
Committee.

4. The Departmental Promotion Committee shall meet periodically to
prepare select lists, in the order of merit, of the officers selected for
promotion. Whenever necessity arises, the Committee may also hold
ad hoc meetings for the purpose of making selection to particular
posts.

5. The criterion for selection shall be merit and ability of the Officers
and their suitability shall be assessed taking into consideration the
following:

i. Annual Confidential Report (ACR) of the Officer for at least the
preceding three years in the feeder category post;
ii. Punishment awarded, if any;

iii.Disciplinary actions pending, if any, while working in the feeder
category;

iv.Criminal/vigilance cases pending, if any:"

42. Sec.9(5) of the Kerala Devaswom Recruitment Board Act

envisages that the Recruitment Board may issue general direction

to Devaswom Boards, incidental to the functions of the Board,

as are necessary for the conduct of examinations. It is argued
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by the writ petitioners that, in view of the mandate contained in

Regulation 16(a)
of the Guruvayur Devaswom Employees

Regulations, the rules applicable to Government servants will also

be applied in the case of promotions, and that therefore, the Rules

contained in the Kerala State & Subordinate Services Rules ('KS &

SSR' for short) may also appropriately apply. It is argued that the

Recruitment Board has also conceded, as per Clause 5 of Part I of

Ext.P-7 Administrative Circular, that the criterion for promotion

to selection post will be on the basis of the items mentioned

thereunder, which is broadly similar to the norms in the KS & SSR

applicable for Government servants. Consequently, it is argued

that the abovesaid criteria for promotion to selection post,

conceded to by the Recruitment Board, cannot be envisaged as

fulfilling the basic definition of 'examination', as contained in Rule

2(b) of the Kerala Devaswom Recruitment Board Rules, etc. Hence,

it is argued by the writ petitioners that the provisions contained in

the Kerala Devaswom Recruitment Board Act and the Rules

framed thereunder would confer powers and functions to the

Recruitment Board, only in respect of selections to be carried out
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on the basis of the method of direct recruitment in Devaswom

Boards, and not in the case of other methods of appointments like

promotion and by-transfer, etc. The essence of the argument is

that the Recruitment Board can conduct any selection only on the

basis of 'examination', as conceived in the Act and the Rules, and

since the examination conceived in terms of Rule 2(b) and the

norms for promotion to selection post as conceived in
Regulation

16(a)
of the Guruvayur Devaswom Employees Regulations, 1983

read with the KS & SSR are different and distinct. The inevitable

fall out is that the Recruitment Board cannot have any power and

function in relation to other methods of appointment like

promotion and by-transfer appointment, for both selection posts

as well as non-selection posts.

43. After hearing both sides, we are of the view that the

abovesaid contentions of the writ petitioners are not tenable for

reasons more than one.
Sec.9(1)(i)
conceives that the Board shall

have the function to prepare select list for appointment of

candidates to various posts mentioned therein. Clauses (ii), (iii) &

(iv) of
Sec.9(1)
are in the matter of conduct of written examination,
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interview and to prepare select list. The examinations like written

examination, interview, physical efficiency test etc., conceived as

per Rule 2(b) of the Rules, may ordinarily apply only in relation to

selection by the method of appointment by direct recruitment. It

may be true that, in view of the stipulation contained in
Regulation

16(a)
of the Guruvayur Devaswom Employees Regulations, 1983,

the norms as per the KS & SSR may also apply in the context of

promotions. True that the norms as per the KS & SSR for

promotion to selection posts, to be effected by the DPC, does not

envisage any written examination, interview, oral test, physical

efficiency test, etc which are ordinarily meant for selection by

direct recruitment. Merely because the term 'examination',

appearing in Clauses (ii) to (iv) of
Sec.9(1)
and Sub
Sections 2
to
of
Sec.9
, may be only in relation to selection by the method of

direct recruitment, that by itself will not take away the powers and

functions of the Recruitment Board, in the matter of preparing

select list for appointments other than direct recruitment.

44. As mentioned hereinabove, there is no dispute that the

provisions of the abovesaid Act and Rules would certainly apply for
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selection by the method of direct recruitment. It is possibly,

understanding these aspects, about the impact of
Regulation 16(a)

of the Guruvayur Devaswom Employees Regulations, 1983, that

the Recruitment Board has also consciously framed the criteria for

promotion to selection post, based on merit-cum-suitability, in

terms of Clause 5 of Part I of Ext.P-7 Administrative Circular,

which appears to be broadly in consonance with the corresponding

norms in the KS & SSR, meant for promotion to selection posts of

Government servants. So long as the method of appointment

involves the preparation of a select list, then the role and function

of the Kerala Devaswom Recruitment Board cannot be, in any

manner, belitted and diluted. The term 'select list' may apply not

only in relation to selection by direct recruitment, as can be seen

from Rule 2(h), but the same will also apply in relation to

promotion to selection post, as opposed to promotion to non

selection list. The provisions contained in the KS & SSR also speaks

about the select list to be prepared by the DPC, for effectuating

promotion to selection post by the method of merit and ability,

where seniority comes into play, and only where merit and ability
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are approximately meagre. Both the terms 'examination' and

'select list', appearing in the Act, have not been defined in the Act.

The said terms 'examination' and 'select list' have been defined as

per Rule 2(b) and 2(h), respectively, of the Kerala Devaswom

Recruitment Board Rules, 2015, framed under the 2015 Act.

It may be true that the term 'examination', appearing in Rule 2(b),

may broadly and predominantly apply in relation to selection by

direct recruitment. But, the term 'select list', appearing in the

Objective portion and Preamble of the Act as well as in the other

provisions, as in
Sec.9(1)(i)
,
Sec.9(4)
etc., will have to be

understood in a more broader and more inclusive manner, than in

the narrow manner, defined as per Rule 2(h) of the Rules.

45. This we say so, as, technically, the process of interview

and examination, envisaged in Rule 2(h), may not be part of the

norms conceived in
Regulation 16(a)
for promotion read with the

KS & SSR, even for selection post. The term 'select list' will have to

be, therefore, fully and properly understood in the context. This is

all the more so, since the previous legislation, which governed the

field in respect of the two important Devaswoms in the State,
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namely, the Travancore Devaswom Board and the Cochin

Devaswom Board, was the Kerala Public Service Commission

(Additional Functions as Respects the Administrative Services

under Devaswom Boards) Act, 2008 (State Act 19 of 2008), whereby

the selection process was entrusted to the Kerala Public Service

Commission ('PSC' for short). The said Act was later repealed in the

year 2014. As per the said Act, the PSC was entrusted only with the

duty and function of selection by direct recruitment to the post of

Officers and Employees of the Administrative Services of the two

Devaswoms mentioned above. Whereas, the present Act would

apply not only to the said two Devaswoms, but also to certain other

Devaswoms including Guruvayoor Devaswom.

46. The present Kerala Devaswom Recruitment Board Act,

2015, uses a more broader and more inclusive language and

terminology, both in the Objective portion as well as in the

Preamble, and in the crucial provisions as in
Secs.9(1)(i)
,
9(4)
, etc

of the said Act compared with the corresponding provisions in the

State Act 19 of 2008 as in Sub Section (1) of
Sec.3
as well as in

Clauses (a) & (b) of Sub Section (2) of
Sec.3
thereof, which is
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confined only in the process of selection by direct recruitment. The

present phraseology and language employed in the Objective

portion as well as in the Preamble and in
Sec.9(1)(i)
& Sec.9(4) of

the Kerala Devaswom Recruitment Board Act, 2015, is that the

Devaswom Recruitment Board has been constituted for preparing

select list of candidates for appointment in various posts other

than hereditary posts and posts in the aided educational

institutions in the Devaswom Boards, etc. So long as the process

involved is the one like the select list for effecting method of

appointment, such process of making select list for the said

method of appointment would also be covered in the said Act,

even if the said method of appointment is other than direct

recruitment.

47. So, in other words, the next question is as to the scope

and ambit of the process of preparation of select list for other

methods of appointment like promotion and by-transfer. We have

already dealt with the legal position well settled by a series of

decisions rendered by the Apex Court on the subject, and about the

inclusional distinction between 'promotion to selection post' and
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'promotion to non selection post', where the criteria for

appointment of in-service candidates by promotion or by-transfer

is, by the criteria of merit and ability. Seniority will come into play

only when merit and ability are prospectively equal. Then, the

process involved is promotion or by-transfer appointment to

selection posts. For other criteria like seniority-cum-fitness,

seniority, etc, there is no question of making any assessment or

merit, and the senior person, who is ordinarily eligible and

qualified, has to be considered for promotion, subject to the

rejection of the unfit.

48. There is yet another important aspect of the matter. The

Kerala Devaswom Recruitment Board Act, 2015 and the Rules

framed thereunder, have been framed mainly for constituting the

Devaswom Recruitment Board for preparation of select list of

candidates for appointment in various posts other than hereditary

posts and posts in aided educational institutions under the

Devaswom Board in the State of Kerala, and for matters connected

therewith or incidental thereto. None of the provisions of said Act

confer power to the Board to frame any rules or regulations on the
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conditions of service of the Administrator and other officers and

employees of the Devaswom, and other aspects like minimum

qualification required to hold the post, the method of appointment

etc, which would all continue to remain within the province of the

Guruvayoor Devaswom Act, 1978
, on the designated authorities

constituted thereunder. Since, the power and function of selection,

for making select list is conferred on the Devaswom Recruitment

Board, as per the Devaswom Recruitment Board Act, the

provisions contained in
Sec.19
of the Guruvayoor Devaswom Act,

as in
Secs.19(3)
,
19(4)
etc regarding selection of the officers and

other employees of the Devaswom, to the extent it is entrusted to

the Devaswom Recruitment Board as per the 2015 Act, would be

effected and modulated.

49. For instance, prior to the commencement of the 2015 Act,

the aspects relating to selection of the officers and employees of the

Guruvayoor Devaswom could be made by the sub committees

constituted by the Guruvayoor Devaswom Managing Committee

from amongst its members as per
Sec.19(3)
, and subject to the

provisions of
Secs.1
,
&
of the 1978 Act, the procedure for
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selection and appointment of the officers and other employees of

the Devaswom shall be such as determined by the Managing

Committee, by the regulations made in that behalf. Those aspects

relating to the selection process, which are otherwise available

under
Sec.19(3)
&
19(4)
of the Guruvayoor Devaswom Act, could

be effected and modulated to the extent that the process of

preparing select list is conferred on the Devaswom Recruitment

Board. That is a clear impact of the non-obstante clause contained

in
Sec.9(1)
of the 2015 Act.

50. A perusal of the Kerala Devaswom Recruitment Board

Act and the Rules framed thereunder would make it clear that, the

said Recruitment Board is not given any power to frame any

regulations or rules for regulating the conditions of service of the

officers and employees of the Devaswoms, or to lay down the

minimum qualification, and methods of appointment to various

posts under the Devaswom. Those aspects of the matter, relating to

conditions of service, prescription of condition of service,minimum

qualification, methods of appointment to various posts, etc., would

continue to be within the sole province of the 1978 Act, and not
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under the 2015 Act. The said fine distinction, by way of

compartmentalization, has to be clearly kept in mind, inasmuch as

the impact of the 2015 Act is for conferring powers and functions

to the Recruitment Board, for preparing select lists of various

appointments under the Devaswoms mentioned therein. To that

extent,
Secs.19(3)
&
19(4)
of the Guruvayoor Devaswom Act, 1978

could be abridged and modulated. Hence, we are of the firm view

that, where the process involves provisions of select lists, the same

can be, not only for selection by way of direct recruitment, but also

be for preparation of select list by the Departmental Promotion

Committee ('DPC' for short), for effectuating promotion to selection

posts, on the criteria of merit and ability, wherein seniority can

play a role only when merit and ability are approximately equal.

51. This is all the more reinforced by the provisions

contained in Rule 3 of Kerala Devaswom Recruitment Board Rules,

2015. Rule 3(1) stipulates that the Board shall have the power to

prepare select list for the appointment of candidates in various

posts, except hereditary posts, coming under the various

Devaswom Boards and the Managing Committees. Sub Rule (2) of
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Rule 3 is in relation to direct recruitment and the provisions for

community reservation, and we are not concerned with that. Rule

3(3) is very important and cardinal, and the same reads as

follows:-

"(3) The candidates for appointment to the selection categories
and grades of the service shall be chosen by the deparmental
promotion committee consittuted by the Board. The Deparmental
Promotion Committee shall consist of one member from the Board as
Chairman, a member of the Devaswom Board as member and
Convener and a member nominated by the Government. "

52. Rule 3(3) clearly mandates that candidates for

appointment to the selection categories and grades of service shall

be chosen by the DPC constituted by the Board, and the DPC shall

consist of one member from the Recruitment Board as Chairman,

a member of the Devaswom Board as a member and Convener, and

a member nominated by the Government. The first part of Rule

3(3) would fully reinforce our abovesaid view and conclusion,

inasmuch as it clearly mandates that candidates for appointment

to the selection categories and grades of service shall be chosen by

the DPC constituted by the Recruitment Board. In other words, the

provisions contained in
Sec.9(1)(i)
,
Sec.9(4)
etc. of the Kerala

Devaswom Recruitment Board Act, 2015, regarding preparation of
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select list for methods of appointment other than direct

recruitment, should be seen in the light of Rule 3(3) of the Kerala

Devaswom Recruitment Board Rules, 2015. That, the preparation

of select list, for methods of appointment other than direct

recruitment, can be only for promotion to selection post, wherein

the criteria is merit and ability, and that seniority will come into

play only when merit and ability are approximately equal. The

DPC concieved under Rule 3(3) is broadly analogous to the DPC

conceived in Rule 28 of the KS & SSR Part II, except in its

members constituting the same. In other words, even for methods

of appointment other than direct recruitment, where the method of

appointment is promotion or by-transfer, then the power and

function of the Recruitment Board will come into play for

preparation of select list through the DPC process, for effectuating

promotion to selection post, on the criteria of merit and ability as

above.

53. The abovesaid aspects are broadly in tune with the

analogous provisions envisaged in
Regulation 16(a)
of the

Guruvayur Devaswom Employees Regulations, 1983, and read with
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KS & SSR Part II. In other words, we are also equally and firmly of

the view that for methods of appointment like promotion and by-

transfer to non selection posts, wherein the criteria is other than

merit and ability like seniority, seniority-cum-fitness etc, then

there is no question of any select list of promotion or by-transfer

appointment to selection post, inasmuch as, they are all non

selection posts. Then, there is no question of preparation of any

select list, as per the provisions contained in the Kerala Devaswom

Recruitment Board Act, 2015, and the Rules framed thereunder. In

other words, so long as the method of appointment is direct

recruitment or by the method of promotion or by-transfer to

selection posts, wherein the criteria is merit and ability as above,

then certainly, the role and function of the Devaswom Recruitment

Board would come into play, and the non obstante provision

contained in
Sec.9(1)
will have its full amplitude vis-a-vis the other

enactments like the
Guruvayoor Devaswom Act, 1978
, etc This is

subject to the scenario that the Recruitment Board does not have

the power or prescription in the matter of conditions of service,

minimum qualifications, methods of appointment etc as per the
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2015 Act, which would all continue to be within the province of the

1978 Act.

54. This conclusion is all the more justified as it is an

elementary aspect of the Service Law that, where the appointing

authority and the selection authority are distinct and separate such

as the State Government, State Public Service Commission, etc then,

the matters in relation to prescriptions of conditions of service,

minimum qualifications, methods of appointment etc could be

within the domain of the appointing authority, and the selection

authority may not have the power in the matter of prescription of

conditions of service, minimum qualifications, methods of

appointment, etc., except consultation, if it is mandated by the

applicable law.

55. During the course of hearing, we had repeatedly queried

to both the State Government as well as to the Devaswom

Recruitment Board as to whether they have a case that the role and

function of the Recruitment Board would apply not only in relation

to promotion and by-transfer appointments to selection posts, but

also to non selection posts wherein the criteria for appointment is

seniority, seniority-cum-fitness, etc. The learned Senior
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Government Pleader, appearing for the respondent State

Government, has fairly submitted before us that he had consulted

with the Advocate General, and that the abovesaid views observed

by us, in the course of hearing, is tenable and sustainable, etc.

However, despite repeated queries, we did not get any specific and

precise answer from the Devaswom Recruitment Board, and in one

of the previous occasions, the answer appeared to be a little bit

evasive. This may be presumably on account of the stand taken by

the Devaswom Recruitment Board, in Ext.P-7 Administrative

Circular No.1 /2016 dated 5.5.2016, wherein Clauses 1(b) & 1(c) of

Part I thereof speak about posts to which promotions shall be given

according to seniority, subject to a person's fitness for promotion,

and posts to which promotions will be given on the basis of

seniority alone, respectively. That is the criteria of seniority-cum-

fitness and seniority, etc. Clause 1(a), Clause 2 and the subsequent

Clauses appear to be in relation to promotion and appointment

by-transfer, according to merit and ability.

56. It is recited in Ext.P-7 Administrative Circular that the

same is issued purportedly, with reference to the provisions
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contained in Sec.9(5) of the Kerala Devaswom Recruitment

Board Act, 2015. Sec. 9(5) of the Kerala Devaswom Recruitment

Board Act, 2015 envisages that the Recruitment Board may issue

general directions to the Devaswom Boards, incidental to the

functions of the Board, as are necessary for the conduct of

examinations.

57. We have already held that the Kerala Devaswom

Recruitment Board Rules, 2015, have been framed as per SRO

No.352/2015, published in Kerala Gazette No.1303 dated

30.5.2015. So, Rule 3(3) of the Kerala Devaswom Recruitment

Board Rules, 2015 has been in the statute book since 30.5.2015,

and the same has not been amended or altered in the manner

known to law. Rule 3(3) clearly mandates that it is only candidates

for appointment to the selection categories and grades of the

service that is assigned to the DPC constituted by the Recruitment

Board. None of the provisions contained in the Act and the Rules,

even remotely envisage that the Recruitment Board has any power

or function to deal with promotion and by-transfer appointments,

where the method of appointment is other than merit and ability.
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In other words, the 2015 Act and the Rules framed thereunder does

not confer any power to deal with promotion and by-transfer

appointment to non selection posts, where the criteria for

appointment is seniority, seniority-cum-fitness, etc. and in such

cases, there is no question of the process of preparation of select

list arising at all. So, it has to be observed that the Recruitment

Board may have power to issue incidental directions, as per Ext.P7,

subject to
Regulation 16(a)
and Government norms like KS & SSR

for selection posts to the Devaswom Boards in matters relating to

selection processes by the method of appointment of direct

recruitment or by the method of appointment by promotion or

by-transfer, wherein the criteria is merit and ability, as above, and

not to non selection posts. Hence, it is only to be mentioned that

the understanding of the Recruitment Board, as reflected in Ext.P7

Administrative Circular, is that they even have power to deal with

promotion and by-transfer appointments to non selection posts,

wherein the criteria is seniority, seniority-cum-fitness etc., is

untenable and unsustainable in law and ultravires and the position

in that regard is declared. The power to take decision to effect such
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promotions and by-transfer appointments to all non-selection

posts will be exclusively with the Guruvayur Devaswom Managing

Committee.

58. As mentioned hereinabove, the crucial aspect of the

matter is as to whether the process effected by the Recruitment

Board is the one which directly and substantially involved the

process of preparation of select list for appointment to various

posts, as discussed hereinabove. At the same time, we would also

make it clear that, so long as the process is one in relation to

preparation of select list, as above, then duties and functions can

be conferred on the Recruitment Board to deal with the incidental

issues of selection processes in such matters, but subject to

Regulation 16(a)
and Government norms like KS & SSR for

selection posts.

59. Now, we will have to deal with yet another contention

raised by the writ petitioners. The stand taken by the Guruvayoor

Devaswom Board Managing Committee in Ext.P-13 is that, as far

as the employees appointed to the services of the Guruvayoor

Devaswom, prior to the coming into force of the Kerala Devaswom
W.A Nos.1042& 1241 of 2021

..84..

Recruitment Board Act, 2015, are concerned, they will be governed

by the Guruvayur Devaswom Employees Regulations, 1983, which

was in vogue at the time when they had entered service. In other

words, the contention is that, for the employees appointed to the

service of the Guruvayoor Devaswom, prior to 1.3.2014 (date of

coming into force of the Kerala Devaswom Recruitment Board Act, 2015) ,

the provisions contained in the said 2015 Act and the Rules framed

thereunder will not apply, and such employees will be governed by

the Guruvayur Devaswom Employees Regulations, 1983, as the

same was in vogue at the time when they had entered into service,

etc.

60. We are not prepared to accept the said contention of

the Guruvayoor Devaswom Board and the writ petitioners, as

referred to in Ext.P-13, for reasons more than one. It is by now well

settled that the right to be considered for promotion is only a right

to be so considered in accordance with law. There is no general law

that an employee has the right to be considered for higher

promotion, by way of promotion or by-transfer appointments, in

accordance with the rules and norms that existed at the time when
W.A Nos.1042& 1241 of 2021

..85..

they had entered into service in the initial entry posts. Ordinarily,

where the rules and norms stipulate qualifications for promotion,

then the issue as to whether the claimants for promotion have

acquired those qualifications and eligibility conditions, as per the

rules and norms, will have to be adjudged with reference to the

state of affairs that existed at the time of occurrence of vacancy,

unless otherwise prescribed by the rules. However, where the rules

and norms itself are subsequently altered, amended or newly

introduced, and promotions were not made initially at a time when

the pre-revised norms and rules were in vogue, even then, it is well

established that the employee's right to be considered for

promotion is, only a right to be considered for promotion, in

accordance with the rule and norms that were in force at the time

when the consideration for promotion was effected. {See
Deepak

Agarwal & Ors. v. State of U.P. & Ors.
[(2011) 6 SCC 725]

D.Reghu & Ors. v. B.Vasaveswarudu & Ors. [(2020) 2

SCC 346], UOI & Ors. v. V.Krishnakumar & Ors. [(
2019)

4 SCC 319] and Dr.Ramalu v. Dr.S.S.Rao
[(1997) 3 SCC

59], etc.}
W.A Nos.1042& 1241 of 2021

..86..

61. When this is the well settled legal position in the

matter, there is no question of any employee claiming that he has

the right to be considered for promotion to a higher category of

post, on the basis of the rules and norms in force at the time when

he had initially entered into service in the lower entry level post.

So, the abovesaid contention raised on behalf of the respondent

Guruvayoor Devaswom Managing Committee and the writ

petitioners is only to be rejected as untenable and unsustainable.

62. Directions and orders to be issued in these cases:

During the course of hearing in these cases, we were apprised that

the competent authority of the respondent State Government, in

the Revenue (Devaswom) Department, has issued Anx.R-1(a) G.O.

(Rt.) No. 3244/2021/Rd. Dated 26.9.2021, ordering that Ext.P-13

proceedings, issued by the respondent Guruvayoor Devaswom

Managing Committee, will stand cancelled and that the promotion

list, published by the DPC, constituted by the Recruitment Board,

should be effectuated by the Administrator, etc. Consequently,

Anx.R-1(b) proceedings dated 29.9.2021 has also been issued by

the Administrator of the Guruvayoor Devaswom, in pursuance of
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..87..

Anx.R-1(a) G.O. dated 26.9.2021. In the course of hearing in these

cases, we made it clear that this appellate Court had never granted

stay of operation of the impugned judgment rendered by the

learned Single Judge in the WP(C), and all what has been directed

was to be keep in abeyance the consequential judgment passed by

the learned Single Judge in the Contempt Case arising out of the

WP(C). Hence, we expressed our opinion that the abovesaid

unilateral act on the part of the State Government and the

Administrator, as per Anxs.R-1(a) & R-1(b), may amount to

overreach of judicial process, inasmuch as the same may go against

the impugned judgment of the learned Single Judge in the WP(C),

more so particularly, as
the said judgment
in the WP(C) has never

been stayed in these appeals. We also made it clear that the said

view expressed by us was not on the merits of the matter, but only

on account of the attitude shown by the respondent State

Government and the Administrator in overreaching the judicial

process, when the writ appeals are pending consideration and as

the judgment of the learned Single Judge in the WP(C) has not

been stayed.

W.A Nos.1042& 1241 of 2021

..88..

63. So also, it has to be borne in mind that, the appointing

authority continues to be the Guruyoor Devaswom Managing

Committee, in accordance with the provisions contained in

Sec.19(1)
of the Guruvayoor Devaswom Act, 1978 and
Regulation
of the Guruvayur Devaswom Employees Regulations 1983,

framed under the 1978 Act. The power of appointment is not, in

any manner, vested with the Recruitment Board, and their

function is to prepare select list for promotion to selection post, on

the basis of merit-cum-suitability criteria, and also selection for

direct recruitment, based on the advice or recommendation of the

DPC/Recruitment Board, as the case may be, based on the advice

made by the DPC, constituted by the Recruitment Board, in the

matter of promotion or by-transfer appointment in selection posts,

and the advice made by the Recruitment Board for direct

recruitment selections and it is for the appointing authority to

issue the appointment order, etc.

64. Later, Sri.Antony Mukkath, learned Senior

Government Pleader, had taken pro-active steps in the matter,

after seeking advice of the learned Advocate General, and
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thereafter it was apprised to us that the Government has ordered

to keep Anx.R-1(a) and the consequential proceedings in abeyance,

pending consideration of the appeals, and that it will be subject to

the result of the Writ Appeals, and that the Government will abide

by the directions issued by this Court in that regard.

65. Further, Sri.K.Jaju Babu, learned Senior Counsel

instructed by the Sri.Brijesh Mohan, learned counsel appearing for

contesting respondents 1 to 3 in this appeal/writ petitioners, has

also pointed out that, even uncommunicated adverse entries of the

writ petitioners were relied on, to deny them promotion, by the

DPC, constituted by the Recruitment Board, as per Ext.P-6, and

further that all the Annual Confidential Reports ('ACRs' for short) of

the relevant period in consideration for the select list year

concerned, have not been taken into account, etc. Further, it was

also submitted on behalf of the petitioners that, they could reliably

learn that some or most of the adverse entries in their ACRs were

already been expunged and removed by the competent appointing

authority concerned, and even inspite of that, the DPC constituted

by the Recruitment Board has not considered those aspects.
W.A Nos.1042& 1241 of 2021

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66. We are of the firm view that the issuance of Anxs.R-1(a)

& R-1(b) would amount to an overreach of the judicial process,

inasmuch as the matters are pending consideration before the

appellate Court, and the impugned judgment in the WP(C) has

never been stayed by the appellant Court. Merely because the

judgment rendered by the learned Single Judge in the Contempt of

Court Case, arising out of the WP(C), was earlier stayed by this

Court, would not amount to the abovesaid authorities arrogating to

themselves the power to present fait accompli in pending matters.

Hence, it is ordered that Anx.R-1(a), issued by the State

Government and Anx.R-1(b), issued by the Administrator, will be

purely provisional and temporary, and the promotions, if any,

ordered thereon, shall be treated only as temporary or provisional

promotions, and that by itself will not confer any right to such

temporary promotees. Further, the DPC, constituted by the

Devaswom Recruitment Board, in terms of Rule 3(3) of the Kerala

Devaswom Recruitment Rules, 2015, will immediately consider the

matters relating to promotion to selection posts, including the post

of Manager, based on the settled finalized seniority and eligible
W.A Nos.1042& 1241 of 2021

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field of choice, and also by taking into account only communicated

entries in the ACRs. And if the previous adverse entries in the

ACRs of any of the incumbents, including the writ petitioners, have

been expunged by the competent authority, then only such revised

ACRs should be taken into account in respect of such incumbents.

Thereafter, the DPC will carefully proceed in the matter, after

ascertaining all these relevant aspects, and then may proceed to

consider effecting regular promotion to selection posts, including

the post of Manager, on the basis of the criteria of merit and

suitability, as above, and then do the entire exercise afresh,

untrammelled and uninfluenced in any manner, by their actions

previously effected in Ext.P-6, Anx.R-1(a), Anx.R-1(b) etc.

67. This has to be done independently and strictly in

accordance with law, and this exercise would be confined only for

promotion or by-transfer appointment to selection posts, wherein

the criteria is on the basis of merit cum suitability. Seniority will

come into play only when merit and suitability are equal or

approximately equal. The said DPC, constituted by the

Recruitment Board, will not have any role to consider promotion
W.A Nos.1042& 1241 of 2021

..92..

or by-transfer appointment to non selection posts, where the

criteria is merit and ability like seniority, seniority-cum-fitness etc.

68. The abovesaid exercise of consideration of regular

promotion to the selection post of Manager, by the criteria of merit

and ability, should be duly finalized by the DPC within 2 months

from the date of production of a certified copy of this judgment.

69. Before that, the incumbents including the writ petitioners,

will be at liberty to place their aspects in the matter before the

appointing authority, like matters relating to their ACRs, expunged

ACRs, seniority position etc, and the appointing authority will give a

detailed and precise report to the DPC, to enable them to ascertain

all relevant and correct facts, and it is thereafter that the DPC

should finalize the regular promotion to the selection post of

Manager, in the manner indicated hereinabove.

70. The appointing authority and the DPC will ensure that

all necessary care and precaution shall be taken to ensure that

complaints, in the present nature, are avoided, so that only

communicated entries in the ACRs are relied on and the ACRs of

the relevant years are duly taken into account and the expunged
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ACRs and the reversed/revised ACRs, based on the expunged

adverse remarks alone, should be taken into account, etc.

71. There is yet another aspect of the matter to be

considered by this Court. The appeallant in W.A. No.1042/2021,

who was the Administrator of the Devaswom, at the relevant time,

had also filed Contempt Appeal (Civil) No.2/2021, to impugn the

judgment dated 30.7.2021, rendered by the learned Single Judge in

Cont. Case(C) No.1081/2021 (arising out the instant impugned

judgment dated 24.6.2021 in WP(C).No. 10135/2021).

72. Initially we had granted stay in the said Contempt

Appeal. Later, when the Contempt Appeal had come up for

consideration on 22.12.2021, it is submitted by Sri.P.B. Krishnan,

learned counsel appearing for the appellant in the said Contempt

Appeal, on the basis of instructions, that his party has already filed

a separate application in the Contempt Appeal, seeking leave of

this Court to withdraw the above Contempt Appeal, inasmuch as

the appellant has already retired from service, and that the

Contempt Appeal may be dismissed as withdrawn. Accordingly,

this Court recorded the abovesaid submission of the appellant
W.A Nos.1042& 1241 of 2021

..94..

therein, and has ordered that the interim stay order dated

20.9.2021 rendered by this Court in the Contempt Appeal will

stand vacated, and that the above Contempt Appeal will stand

dismissed as withdrawn.

73. We specifically queried as to whether the said appellant,

in W.A. No.1042/2021, has filed the said Writ Appeal in his official

capacity as the Administrator or not. The learned Standing Counsel

for the Guruvayoor Devaswom Managing Committee has apprised

us that the Guruvayoor Devaswom Managing Committee has never

authorized the said Administrator to file any Writ Appeal, as above,

and that the said Appeal may have been filed by the said official in

his individual capacity, even though it is shown in the Appeal that it

has been filed by him as the Administrator.

74. Sri.P.B.Krishnan, learned counsel appearing for the

appellant in W.A. No.1042/2021, had submitted before us, on the

basis of instructions, that the said appellant had filed the said Writ

Appeal not to challenge any decision of the Guruvayoor Devaswom

Managing Committee, but that, since his predecessor had earlier

given an undertaking before the Apex Court, stating that all
W.A Nos.1042& 1241 of 2021

..95..

appointments in the Guruvayoor Devaswom will be made only in

accordance with the provisions contained in the Kerala Devaswom

Recruitment Board Act, etc, he was advised that if the impugned

judgment of the learned Single in this WP(C) were implemented,

then, it would amount to violation of the above undertaking, and it

is only for that purpose, to safeguard him from any Contempt

proceedings, he had filed the above Writ Appeal and later the

above Contempt Appeal as well.

75. Further, Sri.P.B.Krishnan, learned counsel appearing

for the appellant in W.A. No.1042/2021, would also apprise us that

since the said Administrator had subsequently retired from service,

and he has duly protected his rights and interests, in regard to his

position, and if the judgment of the learned Single Judge is upheld,

partly or fully, further action in that regard may have to be taken

by his successor and not by him, and therefore, the Contempt

Appeal became unnecessary, due to his retirement and hence, he

had withdrawn the said Contempt Appeal, etc. This is the admitted

case of the said appellant in Contempt Appeal (Civil) No. 2/2021

(who is also the appellant in W.A. No. 2014/2021 ). Hence, going
W.A Nos.1042& 1241 of 2021

..96..

by the abovesaid specific case of the party, it is only to be held that

the present W.A. No.1042/2021 filed by him, not in his official

capacity but in his individual capacity, has also become

unnecessary, in view of his retirement. Hence, we indicated to

Sri.P.B.Krishnan, learned counsel appearing for the said appellant

that, that being so, it may not be proper for us to entertain the said

writ appeal on merits, and that the said Writ Appeal No.1042/2021

is only to be dismissed as withdrawn, as has been done in the case

of Contempt Appeal (Civil) No.2/2021.

76. Sri.P.B.Krishnan, learned counsel appearing for the

appellant in W.A. No.1042/2021, has further submitted on the

basis of instructions that, his party has no objection to the said

course of action.

77. In the light of these aspects, it is only to be ordered that

W.A. No.1042/2021 is only to be dismissed as unnecessary for the

above reasons and the same need not be entertained any further.

78. Issues not decided by this Court in this case:

Sri.K.Jaju Babu, learned senior counsel instructed by Sri.Brijesh

Mohan, learned counsel appearing for contesting respondents 1 to 3
W.A Nos.1042& 1241 of 2021

..97..

in W.A./writ petitioners, would submit that Rule 3(3) of the Kerala

Devaswom Recruitment Rules, 2015, empowers the Recruitment

Board to constitute the DPC, wherein one member thereof is from

the Recruitment Board as Chairman of the DPC, another member

is of the Devaswom Board as a member and Convener of the DPC,

and one member will be nominated by the Government. Hence, it

is submitted before us that the majority of the members in the said

DPC are not representatives of the Guruvarur Devaswom

Board/Managing Committee.

79. In that regard, it is pertinently argued that, even in

Government appointments, direct recruitment is entrusted with an

outside selection agency, like the State Public Service Commission,

in the case of State Services, Union Public Service

Commission/Staff Selection Commission, in the case of the Union

Government Services etc. But, consistently, for appointments by

promotion or by-transfer of in-service employees to higher

category posts, be it especially for selection posts, the DPC will

consist of 3 members, out of which 2 members would be

representing the appointing authority and only 1 member will be
W.A Nos.1042& 1241 of 2021

..98..

an outsider who is normally the member of the PSC, etc.

80. Further that, ordinarily, it may be that direct

recruitment may have to be effected predominantly from all

outsiders, and even the employer/appointing authority may not be

having any knowledge or exposure to open candidates who are

outsiders, and the appointing authority/employer may not also

have the proper ways and means of assessing the merits of such

open candidates for effecting direct recruitment selection,

especially in the matter of conduct of written competitive

examination, interview and other tests. That, it is to ensure that

these deficiencies of the appointing authority/employer are

remedied while effecting the method of direct recruitment, that

many a time, ordinarily, the power of selection may be entrusted to

an outside agency like the Union or State Public Service

Commission etc, who are specilized agencies who have the means

and equipments to properly conduct written examination,

interview and other tests, to assess the merits of the candidates of

direct recruitment. But, such is not the state of affairs in the case of

promotion/by-transfer appointments of in-service employees in
W.A Nos.1042& 1241 of 2021

..99..

any organization. Further that, ordinarily, the appointing

authority/employer will be having more intimate knowledge and

exposure about their in-service employees, and they are best

equipped to handle career advancement aspects like promotion,

by-transfer appointments etc. of the in-service employees. Further

that, the said aspect of control and regulation of such in-service

career advancement appointments have to be vested with the

appointing authority, as it is also part of their prerogative

managerial rights as the employer.

81. It is in view of these aspects that ordinarily, even while

constituting DPCs, for promotion or by-transfer appointments for

selection posts, on the basis of merit-cum-suitability, the majority of

the members would be representing the appointing authority, and

only one member may ordinarily be representing an outside agency,

like the PSC or an expert selection agency. In the instant case, the

said cardinal aspect of the matter has been completely violated,

inasmuch as only one member of the DPC is representing the

Devaswom. The other 2 members are outsiders, inasmuch as they

are not representatives of the employer Devaswom. In that regard,
W.A Nos.1042& 1241 of 2021

..100..

the writ petitioners/respondents 1, 2 & 3 have also urged the

following contentions in paras 5, 6 & 7 of the reply affidavit dated

7.12.2021 filed by them in W.A. No.1042/2021, which read as

follows:-

"5. Originally, Section 20 of the Guruvayur Devaswom Board
Act 1971 provided for the appointment of officers and other
employees. As per the said provision appointment of all officers
and employees of the temple were to be made by a Board
consisting of (a) the Commissioner who shall be the Chairman (b)
the Administrator (c) an Officer professing Hindu Religion
authorised by the District Collector, Thrissur in that behalf and two
persons selected by the Committee from amongst its members.
Thus the composition of the committee was such that there was an
over-whelming predominance of the Government nominees. The
Full Bench of this Hon'ble Court found that in so far as
Section 20

confers the power of appointment of officers and employees of the
temple not on the Managing Committee but on a separate and
independent body namely the Board it must be held that the section
is violative of
Article 26(a)(b)
and (d) of the Constitution of India
(1979 KLT 350 FB).

6. Thereafter, the Guruvayur Devaswom Act 1978 was
promulgated which came into force on 19.03.1978. Section 19 of the
Guruvayur Devaswom Act 1978 (in short the Act) provides for the
appointment of officers and employees, which reads as follows;

19. Appointment of officers and employees.-

(1) Appointment of all officers and other employees of the
Devaswom shall be made by the Committee.
(2) Ten % of the posts in each grade of the officers and other
employees of the Devaswom shall be reserved for the Scheduled
Castes and the Scheduled Tribes, of whcih on-fifth shall be reserved
for the Scheduled Tribes.

(3) Selection of the officers and other employees of the Devaswom
may be made by sub-committee constituted by the Committee from
among its members; Provided that selection of employees to be in
charge of the rituals and other ceremonies of the Temple shall not
be made by any sub-committee of which the Thantri of the Temple
is not a member.

W.A Nos.1042& 1241 of 2021

..101..

(4) Subject to the provisions of sub-sections (1), (2) and (3), the
procedure for the selection and appointment of officers and other
employees of Devaswom shall be such as may be determined by the
Committee by regulations made in this behalf.

7. The scope of the above provision is again considered by the
Full Bench of this Hon'ble Court in the decision reported in 1985
KLT 629 (FB) as follows;

Section 19
of the Act invests the Committee with power to
appoint all officers and other employees of the Devaswom.
Selection of officers and employees is to be made by a sub-
committee constituted by the Committee from among its members
and the procedure for selection is to be determined by the
Committee by regulations made in that behalf.
S.19
is in
recognition of the right of the denomination to administer its
properties.
S.20
of the Act requiring the Committee from time to
time to submit to the Commissioner proposals for fixing the dittam
or scale of expenditure to the Devaswom, publication of the
proposals and scrutiny by the Commissioner with power of
modification vested in him are all in the interests of the Devaswom
and cannot be assailed as violative of
Art.26(d)
of the Constitution.
Sub-s.(4) of
S.20
authorises the Committee to file a suit to set aside
or modify any order passed by the Commissioner altering or
modifying the proposals submitted by the Committee. The
provisions of
S.20
are similar to the provisions of S.54 of the
Madras H.R. & C.E. Act found valid by the Supreme Court in the
Commr. H.R.E. v. L.T.Swamiar.

Section 19
is to be considered in recognition of the right of
the denomination to adminster its properties and held valid. "

82. Further it is also submitted by Sri.K.Jaju Babu, learned

Senior Counsel, that the present provision made in the Kerala

Devaswom Recruitment Board Act, 2015 and the Devaswom

Recruitment Board Rules, 2015 entrusting the power of

appointment by promotion/by-transfer to selection posts, would

be nullifying the rights of administration guaranteed to religious
W.A Nos.1042& 1241 of 2021

..102..

denomination represented by the Guruvayoor Devaswom in terms

of
Article 26
of the Constitution of India. Further that, even the

constitution of the DPC making the provisions in the rules, in not

giving majority of the membership in the DPC to the

representatives of the Devaswom, would certainly amount to

abridgement of the Constitutionally guaranteed Right under

Article 26
of the Constitution of India, which is for the protection

of religious denomination, and that the Devaswom is representing

the religious denomination as understood in
Article 26.

83. Sri.P.B.Krishnan, learned counsel appearing for the

appellant would point out that the abovesaid contentions of the

writ petitioners based on
Article 26(d)
of the Constitution of India

cannot be claimed by them, and at any rate, the Apex Court in the

judgment rendered in the case in
M.P.Gopalakrishnan Nair &

Anr. v. State of Kerala & Ors.
[(2005) 11 SCC 45] has held

that such a Fundamental Right under
Article 26
of the Constitution

of India for religious denomination, could not be claimed in the

case of temple believers of Guruvayoor Devaswom, etc.

84. This contention is rebutted by the learned Senior
W.A Nos.1042& 1241 of 2021

..103..

Counsel appearing for the writ petitioners, who would also make

an alternate plea that, the very act of entrusting the power to the

DPC, after taking it away from the appointing authority, and also

the act of not giving majority membership to the Devaswom

Managing Committee in the DPC, would amount to an

unreasonable action in taking away the power of said appointing

authority, and hence, would be violative of
Articles 14

& 16
of the

Constitution of India, for the earlier stated reasons etc.

85. We do not propose to adjudicate any of these issues, as

the same have not been directly and substantially raised in the

present writ proceedings. True, that some of these contentions

have been raised in the reply affidavit filed by the writ petitioners.

Hence, it is made clear that, in case the writ petitioners or any

other aggrieved persons have any such issues, it is for them to raise

those matters in appropriate litigative writ proceedings and raise

them for adjudication in the manner known to law. Such liberty is

accorded to the writ petitioners or any other aggrieved persons.

We make it clear that we have not examined the merits of those

rival contentions and have only given liberty to raise it in
W.A Nos.1042& 1241 of 2021

..104..

appropriate proceedings in the manner known to law.

86. Conclusions : The upshot of the above discussion is as

follows:-

(i) There is no dispute that the provisions contained in the

Kerala Devaswom Recruitment Board Act, 2015 and the

Rules framed thereunder, confer power and function to the

said Recruitment Board to prepare select list, for effecting

direct recruitment to various posts, conceived in terms of

Sec.9(1)
, where the method of appointment to fill up such

post, as per the Rules, is direct recruitment.

(ii) In view of the non obstante clause contained in Sec.9(1)(i)

of the Kerala Devaswom Recruitment Board Act, 2015 and

the Rules framed thereunder, the Departmental Promotion

Committee, constituted by the Recruitment Board, will

have the power and function to prepare select lists for

effecting appointment by way of promotion or by-transfer

to selection posts, wherein the criteria is on the basis of

merit and ability, and wherein seniority will come into play

only when merit and ability are approximately equal, etc.
W.A Nos.1042& 1241 of 2021

..105..

However, the said Recruitment Board or the DPC will not

have the power or function in the case where the method

of appointment is by promotion or by-transfer to non

selection posts, wherein the criteria is other than merit

and ability, especially when the criteria is seniority,

seniority-cum-fitness etc. The power to take decisions to

effect such promotion or by-transfer appointments to all

non-selection posts will be exclusively with the Guruvayur

Devaswom Managing Committee.

(iii) The promotions ordered, as per Anx.R-1(a) G.O.

(Rt.)No.3244/2021/Rd dated 26.9.2021 and the

consequential Anx.R-1(b) proceedings No. B1-1255/2020

dated 29.9.2021, issued by the Administrator of the

Guruvayoor Devaswom, in pursuance of Ext.P-6 will be

purely provisional and temporary, and no rights will be

conferred on such temporary/provisional promotees, for

the reasons stated hereinabove.

(iv) The appointing authority will immediately give details of

the seniority position, field of choice, details of the
W.A Nos.1042& 1241 of 2021

..106..

communicated ACRs of the claimant incumbents, details

of the expunged ACRs and the revised ACRs to the DPC

constituted by the Recruitment Board under Rule 3(3)

above, for the purpose of consideration by the DPC, for

regular promotion to selection posts, including the post of

Manager, without any further delay and this process may

be completed immediately.

(v) Thereafter, the DPC, constituted by the Recruitment

Board, will consider the entire matter afresh, and take

appropriate action regarding regular promotions to be

made to selection posts, like Manager, etc and in that

regard, it shall be ensured that only communicated

adverse entries of the incumbents shall be taken into

account, and expunged ACRs shall not be taken into

account, and in this case, revised ACRs alone should be

taken into account, and after taking into consideration all

relevant aspects of the matter, the DPC will issue a fresh

select list for promotion to such selection posts, like

Manager, etc without any further delay, and the entire
W.A Nos.1042& 1241 of 2021

..107..

process in that regard may be duly completed by the

appointing authority and the DPC within 2 months from

the date of receipt of a copy of this judgment.

(vi) The contentions of the writ petitioners, based on the

alleged infringement of the Fundamental Rights of

Religious Denomination in terms of
Article 26(d)
of the

Constitution of India, and also the alleged violation of

Articles 14

& 16
of the Constitution of India, in view of the

entrustment of promotion aspects of selection posts to the

DPC, in which the Devaswom has only minority

representation, are left open to be raised and decided by

them in appropriate writ litigative proceedings, in the

manner known to law. It is made clear that, such issues

have not been decided by this Court in any manner.

(vii) The impugned judgment dated 24.06.2021 in W.P.(C)

No.10135/2021 will stand modified and substituted as

above.

With these observations and directions, the above

W.A.No.1241/2021, filed by the Kerala Devaswom Recruitment
W.A Nos.1042& 1241 of 2021

..108..

Board will stand finally disposed of as above. W.A. No.1042/2021

will stand dismissed as unnecessary for the above reasons.

Sd/-

ALEXANDER THOMAS,
JUDGE

Sd/-

VIJU ABRAHAM,
JUDGE
Skk
VGD
MMG//V0
VGD9042022

APPENDIX OF WA 1241/2021

PETITIONER ANNEXURES:-

Annexure A1 TRUE COPY OF THE MINUTES OF THE JOINT
MEETING DATED 23.2.2018
Annexure A2 A COPY OF THE RESOLUTION DATED 23.3.2018
Annexure A3 TRUE COPY OF THE CIRCULAR NO.1 OF 2016
DATED 5.5.2016

RESPONDENT ANNEXURES:-

Annexure R1(A) TRUE COPY OF THE AFFIDAVIT FILED IN
CONT.CASE NO 2067/2021 FILED BY THE
PRESENT ADMINISTRATOR ON 27.1.2022
Annexure R1(B) TRUE COPY OF THE ORDER DATED 27.1.2022 IN
CON (C) NO 2067/2021 OF THIS HON'BLE
COURT
W.A. Nos.1042 & 1241 of 2021

APPENDIX OF WA 1042/2021

PETITIONER ANNEXURES:-

Annexure A DATED 23/03/2018 - TRUE COPY OF THE
MINUTES OF MEETING.

Annexure B DATED 10/04/2018 - TRUE COPY OF THE
RESOLUTION NO.20.

RESPONDENT ANNEXURES:-

Annexure R1(A) TRUE COPY OF THE GOVERNMENT ORDER VIDE
GO(RT) NO.3244/2021/REV DATED 26.9.2021.
Annexure R1(B) TRUE COPY OF THE ORDER/PROCEEDINGS VIDE
NO. B1-1255/2020 DATED 29.9.2021 ISSUED
BY THE 1ST RESPONDENT IN I.A. /APPELLANT
IN WRIT APPEAL.

Annexure R1(C) TRUE COPY OF THE ORDER/PROCEEDINGS NO.

B1-1255/2020 DATED 30.9.2021 ISSUED BY
THE 1ST RESPONDENT IN I.A. /APPELLANT IN
WRIT APPEAL.

Annexure R1(D) TRUE COPY OF THE RESOLUTION OF THE
MANAGING COMMITTEE OF THE GURUVAYUR
DEVASWOM DATED 01.12.2021 OBTAINED UNDER
RIGHT TO INFORMATION ACT.

Annexure R1(E) TRUE COPY OF THE RESOLUTION NO.2 OF THE
MANAGING COMMITTEE OF THE GURUVAYUR
DEVASWOM DATED 01.07.2021.

Annexure R1(F) TRUE COPY OF THE JUDGMENT DATED
07.07.2021 IN W.P.(C).NO.10671/2021 OF
THIS HON'BLE COURT.

Annexure R1(G) TRUE COPY OF THE CIRCULAR/COMMUNICATION
VIDE NO.1455/2014 DATED 10.01.2022
PUBLISHED BY THE ADMINISTRATOR.

Annexure R1(H) TRUE COPY OF THE AFFIDAVIT FILED IN CONT.

CASE NO.2067/2021 FILED BY THE PRESENT
ADMINISTRATOR ON 27.01.2022.

Annexure R1(I) TRUE OF COPY THE ORDER DATED 27.01.2022
IN CONT.CASE(C). NO. 2067/2021 OF THIS
HON'BLE COURT.