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2001 DIGILAW 761 (KER)

P. v. Subramanyan VS V. K. Kunchu

2001-12-21

K.BALAKRISHNAN NAIR, K.S.RADHAKRISHNAN

body2001
Judgment :- Radhakrishnan, J. The question that has come up for consideration in these cases is whether petitioner in O.P. No. 15781 of 2000 who is a member of the Scheduled Caste is entitled to get promotion to the post of P.A. to Administrator (Stores & Purchase) in the retirement vacancy which arose on 31.5. 2000. Learned single judge took the view that since petitioner was found eligible in the previous selection for the post of P.A. to Administrator he should be given promotion by the Managing Committee as and when they intend to fill up the vacancy which occurred on 31.5.2000. 2. Guruvayoor Devaswom Committee was first respondent in the writ petition. They found no reason to challenge the direction given by the learned judge. Therefore as far as Devaswom Committee is concerned, judgment of the learned single judge has become final. Contesting respondents who are Assistant Managers under the Devaswom took up the stand that fresh selection be made for promotion to fill up the vacancy of P.A. to Administrator. The dispute now is between the petitioner in O.P. No. 15781 of 2000, petitioners in O.P. No. 20289 of 2000 and the appellant in W.A. No 3253 of 2000. We may refer to the facts in O.P. No 15781 of 2000 for the disposal of these cases. 3. In order to deal with the claims of the petitioner and contesting respondents, it is necessary to refer to some facts. Writ petitioner is a member of Scheduled Caste community serving as Asst. Manager under the Devaswom. We had approached this court earlier by filing O.P. No. 7372 of 1989 seeking a writ of mandamus directing the Guruvayoor Devaswom Committee to promote him to the category of P.A. to Administrator in accordance with Section 19 (2) of the Guruvayoor Devaswom Act, 1978 and also for a declaration that Clause 8 of the Guruvayoor Devaswom Employees Regulations 1983 is invalid and inoperative. O.P. No. 15672 of 1995 was also filed by an Assistant Manager of the Devaswom challenging the constitutional validity of Section 19 (2) of the Guruvayoor Devaswom Act. O.P. No. 15672 of 1995 was also filed by an Assistant Manager of the Devaswom challenging the constitutional validity of Section 19 (2) of the Guruvayoor Devaswom Act. When the matter came up for hearing before a Division Bench, petitioners in those writ petitions submitted that the constitutional validity of Section 19 (2) need not be decided but submitted it would be sufficient if the court interprets Section 19 (2) of the Act for the purpose of disposal of those cases. 4. The Bench sustained the claim of the petitioner herein under Section 19 (2) of the Act. The Division Bench disposed of the matter directing the Managing Committee to consider the case of the petitioner for appointment to the post of P.A. to Administrator in accordance with Section 19 (2) of the Act along with other candidates and pass orders within four weeks from the date of judgment. 5. The Guruvayoor Devaswom later issued notice to all the Assistant Managers in service inviting applications for appointment to the post of P.A.to Administrator in the vacancy which arose on 1.6.1998 due to the retirement of one P. Ramachandran on 31.5.1998. According to Regulation 5 (c)of the Guruvayooor Devswom Regulations, 1983 appointment to the post of P.A. to Administrator shall be made from among members eligible for the post. The feeder category is Assistant Manager. After considering the comparative merit of all the candidates the Managing Committee selected one M. Aravindakshan by proceedings dated 10.7.1998 for filling up the retirement vacancy. Comparative merits of the candidates vis-a-vis the petitioner were also considered for appointment to the temporary post of P.A. to Administrator. Proceedings would show that the petitioner was selected since he is a member of Scheduled Caste and also to achieve social justice. Petitioner was served with an appointment order dated 13.7.1998 and he joined duty as P.A. to Administrator (Stores & Purchase) in a vacancy which arose due to the suspension of one Radhakrishna Warrier. He was later reverted to the post of Asssistant Manager since Radhakrishan Warrier, P.A. to Administrator was reinstated in service pending disciplinary proceedings, vide proceedings dated 17.10 1998. On reinstatement Warrier was posted as P.A. to Administrator (Administration) and M. Aravindakshan was transferred and posted as P.A. to Administrator (Stores and Purchase). Later Aravindakshan was relieved from service on 31.5.2000. He was later reverted to the post of Asssistant Manager since Radhakrishan Warrier, P.A. to Administrator was reinstated in service pending disciplinary proceedings, vide proceedings dated 17.10 1998. On reinstatement Warrier was posted as P.A. to Administrator (Administration) and M. Aravindakshan was transferred and posted as P.A. to Administrator (Stores and Purchase). Later Aravindakshan was relieved from service on 31.5.2000. Petitioner raised his claim for promotion to that vacancy on the strength of his earlier selection. The Administrator however passed order directing Sri. Aravindakshan to hand over charge to P.A. (Finance). This order was challenged by the petitioner and sought promotion to the post of P.A. to Administrator which fell vacant on the retirement of Aravindakshan. 6. Senior Counsel appearing for the writ petitioner in O.P. No. 15781 of 2000 contended that Devaswom Committee is legally obliged to appoint petitioner to the post of P.A. to Administrator (Stores and Purchase) in the vacancy which arose on 31.5.2000. Counsel made reference to the earlier judgement of the Division Bench in O.P. No. 7362 of 1989 and the declaration made by this court to consider the petitioner's claim in accordance with Section 19 (2) of the Guruvayoor Devaswom Act. Counsel submitted since the petitioner was earlier selected in accordance with Section 19 (2) of the Act the Devaswom Committee is bound to promote him to the vacancy which arose on 31.5.2000. 7. Counsel appearing for fifth respondent in O.P. No. 15781 of 2000 submitted that the fifth respondent is fully qualified for promotion to the post of P.A. to Administrator and that the request made by the writ petitioner to promote him to the post of P.A. to Administrator in the vacancy which arose on 31.5.2000 cannot be justified. Counsel also made reference to the judgment in O.P. No. 17014 of 1999 wherein a direction was given to the Managing Committee to consider his claim. Counsel appearing for the appellant in W.A. No. 3253 of 2000 placing reliance on the decision of the apex court in Ajit Singh v. State of Punjab (AIR 1999 S.C. 3471) submitted that there cannot be any reservation for promotion. Reference was also made to Regulation 8 of the Guruvayoor Devaswom Employees Regulations 1983 which says that 10% of the posts for which appointments by direct recruitments are made shall be reserved for Scheduled Castes and Scheduled Tribes and not for promotion. 8. Reference was also made to Regulation 8 of the Guruvayoor Devaswom Employees Regulations 1983 which says that 10% of the posts for which appointments by direct recruitments are made shall be reserved for Scheduled Castes and Scheduled Tribes and not for promotion. 8. Senior counsel appearing for the Guruvayoor Devaswom took us through the counter affidavit filed in O.P. No. 15781 of 2000 and highlighted the stand of the Devaswom. Counsel contended that in view of the judgment in O.P. No. 7362 of 1989 petitioner cannot take up the contention that he is entitled to be promoted to the post of P.A. to Administrator in view of Section 19 (2) of the Act. Counsel submitted that the earlier selection of the petitioner in O.P. No. 15781 of 2000 was for a temporary vacancy to the post of P.A. to Administrator and the selection would not give rise to a right for permanent appointment. Counsel submitted that the retirement vacancy which arose on 31.5.2000 will have to be filled up through a fresh selection in which the claim of the petitioner and contesting respondents would be considered. 9. We have to examine the rival contentions in the light of the Division Bench judgment of this court in O.P. No. 7362 of 1989. Managing Committee as well as the petitioner in O.P. No. 23451 of 2000, who is the appellant in O.P. No. 3057 of 2000 were parties to the judgment. Appellant in W.A. No. 3253 of 2000 was not a party to the judgment. Bench of this court considered the claim of the petitioner for promotion to the post of P.A. to Administrator in the light of Section 19 (2) of the Act. We may extract the said provision for easy reference. 19. Appointment of officers and employees: (1)……………… (2) Ten per cent 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 which one-fifth shall be reserved for the Scheduled Tribes. Contention was raised before the Division Bench that the said provision is not applicable to promotion to the post of P.A. to Administrator. Similar contention was raised by the petitioner in O.P. No. 15672 of 1995 as well. The Bench held as follows: "The petitioner in O.P. No. 15672 of 1995 is already in service as Personal Assistant to Administrator. Contention was raised before the Division Bench that the said provision is not applicable to promotion to the post of P.A. to Administrator. Similar contention was raised by the petitioner in O.P. No. 15672 of 1995 as well. The Bench held as follows: "The petitioner in O.P. No. 15672 of 1995 is already in service as Personal Assistant to Administrator. He is not prejudiced in any manner if we direct the Devaswom to consider the case of the petitioner in O.P. 7372 of 1989 for appointment to the post of Personal Assistant to the Administrator in accordance with Section 19 (2) of the Act and the qualification prescribed under the regulations." In view of the above mentioned order of the Division Bench we have to consider the case of the petitioner. The general issue as to whether claim for reservation could be entertained in the matter of promotion to various posts under the Guruvayur Devaaswom Employees Regulations 1983 need not be gone into in these cases since there was already a direction to consider the case of the petitioner for promotion in accordance with Section 19 (2) of the Act. Devaswom Committee had not filed any appeal against the said judgment. Consequently the direction to consider the case of the petitioner in accordance with Section 19 (2) has become final between the petitioner and the Devaswwom Committee. 10. Guruvayoor Devaswom Managing Committee in exercise of the powers conferred by Section 39 of the Guruvayoor Devaswom Act 1978 and with the approval of the Government issued Guruvayoor Devaswom Employees Regulations 1983 providing for the conditions of service of the Administrator and other officers and employees of the Guruvayoor Devaswom. Regulations were approved by the Government of Kerala as per order dated 3.12.1983. Regulation 5 deals with method of appointment. Regulation 5 (a) states that direct recruitment shall be made after due publication of notices inviting applications and eligible persons shall be called for written test or interview or both and selection made on the basis of merit. Sub-clause (b) states that in the case of appointments by promotion or direct recruitments, direct recruitment shall be resorted to only if suitable qualified candidates for promotion are not available. Category 66 deals with Assistant Manager and 67 deals with Manager. Post of Assistant Manager is to be filled up by promotion from Head Clerk. Sub-clause (b) states that in the case of appointments by promotion or direct recruitments, direct recruitment shall be resorted to only if suitable qualified candidates for promotion are not available. Category 66 deals with Assistant Manager and 67 deals with Manager. Post of Assistant Manager is to be filled up by promotion from Head Clerk. Post of Manager is to be filled up by appointment from Assistant Manager. Category 69 deals with Personal Assistant to Administrator. The said post is to be filled up by promotion from Manager category. For promotion to the post of P.A. to Administrator, proviso to Regulation 5, states that post of Executive Engineer, Assistant Executive Engineers, Assistant Engineer, Personal Assistant to Administrator, Accounts officer and Manager shall be treated as selection category. 11. Appointment to the selection category shall be made by the Managing Committee from among members eligible for appointment to such category on the basis of merit and ability, seniority being considered only where merit and ability are approximately equal. Regulation 17 deals with temporary appointment. It is stated that where it is necessary in the interest of the Devaswom owing to an emergency which has arisen to fill immediately a vacancy in a post and there would be undue delay in making such appointment in accordance with the regulations, the Administrator may appoint a person otherwise than in accordance with the regulations temporarily after obtaining the approval of the Managing Committee. Proviso states that a person appointed under the regulation shall not be allowed to continue in such post for a period exceeding 180 days and that he shall be paid the minimum pay in the time scale of pay applicable to such post. Regulation 18 deals with temporary promotion states that where it is necessary in the interest of the Devaswom owing to an emergency which has arisen to fill immediately a vacancy in a higher category from a lower category and there would be undue delay in making such promotion in accordance with the regulation, the Administrator may promote a person otherwise than in accordance with the regulations, temporarily after obtaining approval of the Managing Committee. In this case writ petitioner was earlier appointed neither under Regulation 18 or under Regulation 17. In this case writ petitioner was earlier appointed neither under Regulation 18 or under Regulation 17. If the idea was to appoint him to the post of P.A. to Administrator temporarily there was no necessity to subject him to the selection process as envisaged and provided under Section 5. This is a case where Managing Committee not only assessed the performance of one Aravindakshan but also the writ petitioner for promotion to the post of P.A.to Administrator in accordance with proviso to regulation 5 read with Section 19 (2) of the Guruvayoor Devaswom Act. Section 19 (2) cats a duty on the Devaswom to reserve 10 % of the posts in each grade of officers and employees to the members of Schedules Caste and Scheduled Tribe. 12. We have already found that selection and appointment of the writ petitioner was not under Regulations 17 and 18 which deal with temporary appointments in Guruvayoor Devaswom. We have found that the claim of the writ petitioner was considered as per the direction of the Division Bench in the light of Section 19 (2) of the Act. Consequently writ petitioner has a claim for appointment on a regular basis. Viewed in that angle, we are of the view, claim raised by the writ petitioner for appointment to the post of P.A. to Administrator in the vacancy which arose on 31.5.2000 is justified. We therefore find no reason to disturb the finding of the learned single judge. Writ appeal lacks merits and the same is accordingly dismissed. Original Petitions are also dismissed.