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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Alexander Thomas, Viju Abraham, JJ.
The Administrator, Guruvayoor Devaswom Managing Committee Guruvayur, Thrissur - Appellant
Vs.
Mayadevi K.S. & Ors. - Respondent
WA NO. 1042, 1241 OF 2021
Decided On : 06-04-2022
Guruvayoor Devaswom Act, 1978 - Section 19 and 39 - Guruvayur Devaswom Employees Regulations 1983 - Regulation 16 - Kerala Public Service Commission (Additional Functions as Respects the Administrative Services under Devaswom Boards) Act, 2008 - Constitution of India, 1950 - Articles 14 & 16 - Post of Manager – Promotion - Infringement of Fundamental Rights of Religious Denomination – Seeking directing respondents 2 and 3 to promote the petitioners as Manager in accordance with Regulation 16 of Guruvayur Devaswom Employees Regulations 1983 as per Ext.P1 forthwith - 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 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 - Non obstante clause contained in Sec.9(1)(i) of the Kerala Devaswom Recruitment Board Act, 2015 and the Rules framed thereunder, 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 . (Para 86)
Finding of the court: 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 appropriate proceedings in manner known to law - The DPC, constituted by 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 matter, DPC will issue a fresh select list for promotion to such selection posts, like Manager, etc without any further delay, and entire 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.
Result: W.A. filed by Kerala Devaswom Recruitment Board disposed of and another W.A. dismissed
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, 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:-
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.”
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:-
(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 respondent State Government and the respondent Kera
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