Devaswom Board Can Only Make Regular Appointments; Any Scheme For Regularization Will Be Unconstitutional: Kerala High Court

The Kerala High Court observed that Devaswom Board has the constitutional obligation to make appointment only in fulfilment of the statutory procedures regarding appointment.

Framing of a scheme for regularisation will be in violation of Articles 14, 15, and 16 of the Constitution, the bench of Justices Alexander Thomas and K. Babu observed.

The court was considering a batch of petitions by persons who were temporarily/provisionally appointed by the Travancore Devaswom Board seeking regularisation of the services. They also challenged the proceedings issued by the Devaswom Board limiting the period of the services of the petitioners till 31-05-2016.

The Devaswom Board is an 'other authority' answering the definition of 'State' under Article 12 of the Constitution of India, the court observed:

"29. Public employment in the Government and its instrumentalities has to be on the basis of procedure established on that behalf in terms of the Constitutional scheme. The regular appointment is the rule in the substantive posts, and ad hoc and temporary appointment is an exception.. If rules have been made drawing the procedures in the matter of recruitment to permanent posts, then the Government and its instrumentalities can make appointments only in accordance with the rules. Following any other course is disastrous as it will amount to negating the accepted service jurisprudence."

The court observed that Travancore Devaswom Board has had statutory procedures for recruitment to the regular/permanent posts all through out. It was also noticed that the petitioners (1) have never undergone a selection process as per the statutory scheme prescribed to hold a regular/permanent post in the Devaswom Board (2)  were appointed provisionally in the existing vacancies initially for a period of 89 days, and they were allowed to continue for a period, not beyond 179 days and the Devaswom Board never intended to allow the petitioners to continue for a period beyond 179 days(3) continued in the service of the Devaswom Board beyond the period of 179 days under cover of orders of this Court during the various stages of the litigative proceedings.

"Since statutory procedures were in existence, for the appointment to the regular/permanent cadre all throughout the period during which the petitioners held posts in the Devaswom Board, and the petitioners have not gone through the selection process prescribed by the statutes that governed the field, they are not entitled to regularisation as claimed.", the court said, referring to Umadevi Judgment.

The court observed that the petitioners cannot press for following any past practice of regularisation as the Devaswom Board is duty-bound to make appointments in accordance with law, and illegality committed in the past cannot be allowed to perpetrate.

"The petitioners cannot press for a scheme for regularisation as the Devaswom Board has the constitutional obligation to make appointment only in fulfilment of the statutory procedures regarding appointment. Framing of a scheme for regularisation will be in violation of Articles 14, 15, and 16 of the Constitution", the court said while dismissing the writ petitions.

Case: Rajani P. Kuttan vs. State of Kerala ; WP(C) NO. 18484 OF 2016

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