A.P.K Vinod v. Malabar Devaswom Board and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 24TH DAY OF SEPTEMBER 2019 / 2ND ASWINA, 1941** ## **WP(C).No.37014 OF 2016(B)** ## **PETITIONER:** ## **A.P.K VINOD, S/O. DAMODARAN NAMBIAR, PACHENI, THIRUVATTOOR, PAIYARAM. KANNUR DISTRICT.** **BY ADV. SRI.MOHAN C.MENON** ## **RESPONDENTS:** - **1 THE MALABAR DEVASWOM BOARD, KOZHIKODE. REPRESENTED BY ITS SECRETARY/COMMISSIONER.** - **2 THE COMMISSIONER, THE MALABAR DEVASWOM BOARD, KOZHIKODE.** - **3 THALIPARAMBA THRUCHAMBARAM KANJIRANGATTU DEVASWOM (TTK DEVASWOMS), THALIPARAMBA, KANNUR DISTRICT, PIN 670141, REPRESENTED BY ITS EXECUTIVE OFFICER.** - **4 MANAGING COMMITTEE OF THALIPARAMBA TRICHAMBARAM, KANHIRANGAD, (TTK) DEVASWOM, THALIPARAMBA, KANNUR, REPRESENTED BY ITS PRESIDENT670141. [im** **R1 BY SRI.K.R.SUNIL, SC, MALABAR DEVASWOM BOARD R1-2 BY SMT.P.K.RADHIKA, SC, MALABAR DEVASWOM BOARD R2 BY ADV. SRI.K.R.SUNIL** - **R3 BY ADV. SRI.MAHESH V.MENON R4 BY ADV. SMT.SREEDEVI KYLASANATH R4 BY ADV. SRI.ACHUTH KYLAS R4 BY ADV. SRI.MAHESH MENON** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-082019, THE COURT ON 24-09-2019 DELIVERED THE FOLLOWING:** WP(C).No.37014 OF 2016(B) 2 ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 37014 of 2016 ----------------------------------------------Dated this the 24[th] day of September, 2019** ## **JUDGMENT** The petitioner, who had been appointed initially as Attender in the 3[rd] respondent Devaswom, has approached this Court seeking the following relief: _“A writ in the nature of mandamus commanding respondents 2 and 3 to correct the error crept in, mentioning the petitioner's designation from 'attender' to Manager/Caretaker of Devaswom Guest House/Rest House of Thaliparamba Thruchambaram Kanjirangattu Devaswom, Thaliparamba, Kannur District, immediately.”_ 2. It is submitted that the petitioner had been appointed as Guest House Attender in the Thaliparamba, Thrichambaram, Kanjirangattu Devaswom by proceedings dated 9.1.2005. It is stated that the Managing Committee is the appointing authority and the Executive Officer is liable, as per Exhibit R4(b) Scheme, to carry out the decisions of the Committee. It is stated that the appointment of the petitioner as Guest House Attender was regularised by the decision of the Managing Committee dated 31.10.2007, which is produced as Exhibit P7. However, Exhibit WP(C).No.37014 OF 2016(B) 3 P7 provided that the regularisation would be subject to ratification by the Malabar Devaswom Board. It is stated that by Exhibit R4(e) proceedings dated 30.4.2008, the Commissioner rejected the request for regularisation of employees which was challenged in W.P(C).No.20722 of 2009. In the meanwhile, Exhibit P1 decision had been taken by the Managing Committee to create a post of Guest House Manager and to appoint the Seniormost Attender as Manager. Thereafter, it is contended that, by Exhibit P2, the President of the Managing Committee had directed the Executive Officer to prepare a seniority list of eligible Attenders. By Exhibit P3 dated 22.12.2008, the seniority list was prepared and circulated and it is contended that by Exhibit P4, the petitioner had been appointed as Guest House Manager by the Executive Officer. When proposal was sent up for regularisation by the Executive Officer by Exhibit P8 dated 27.7.2010, the petitioner's name was included and his designation was shown as Manager/Caretaker. It is contended that the Executive Officer, by Exhibit P9 proceedings, had required the petitioner to withdraw the writ petitions preferred by the petitioner and others for the purpose of considering their request for regularisation. The writ petitions were withdrawn and WP(C).No.37014 OF 2016(B) 4 the said fact was intimated to the Commissioner, Malabar Devaswom Board by the Executive Officer by Exhibit P13. Thereafter, though Exhibit R4(f) proceedings were issued on 25.1.2011, the regularisation is only as Guest House Attender. Though the petitioner submitted Exhibit P15 request for regularisation as Manager, which was recommended by Exhibit P16 by the Assistant Commissioner and by Exhibit P17 by the Establishment Standing Committee of the Malabar Devaswom Board, the Commissioner had issued directions to the Trustee to take appropriate decision in the matter. It is stated that the Trustee had, during the pendency of the writ petition, considered the issue and passed an order rejecting the claim of the petitioner. 3. Learned counsel for the petitioner submits that the petitioner had been appointed as Guest House Manager/Caretaker by Exhibit P4 proceedings, which is supported by a proper decision of the Managing Committee at Exhibit P1. It is stated that the petitioner's request for change of designation in Exhibit R4(f) from Guest House Attender to Manager/Caretaker has also been duly recommended by the Assistant Devaswom Commissioner as well as the Establishment WP(C).No.37014 OF 2016(B) 5 Standing Committee of the Malabar Devaswom Board and that as such, the petitioner is entitled to the said benefit. It is stated that the decisions taken by the Board of Trustees during the pendency of this writ petition are completely untenable and Commissioner is duty bound to take a proper decision in the matter as recommended by the Assistant Commissioner as well as the Standing Committee constituted under Section 7L of the Madras Hindu Religious and Charitable Endowments Act, 1951. It is contended that once the Malabar Devaswom Board had taken a decision to regularise the employees who had three years of service in the post of which they were holding, the fact that the petitioner was working as Guest House Manager/Caretaker ought to have been taken into account and the petitioner ought to have been regularised against the said post. It is contended that the mistake has occurred in the rendition of the order by the Commissioner and that as such, the same is liable to be corrected by the Commissioner without recourse to the Trustee or the Board of Trustees. 4. Learned counsel for the petitioner relies on the decision of the Apex Court in _**In Re: Destruction of Public & Pvt. Prop. v. State of A.P and Others**_ [2009(2) KHC 374(SC)] to WP(C).No.37014 OF 2016(B) 6 contend that where appropriate orders are not passed by the authority in spite of valid directions, this Court, in order to prevent injustice resulting to the concerned parties, may itself pass an order or give directions which the Government or the public authority should have issued, had it properly and lawfully exercised its discretion. 5. A detailed counter affidavit has been placed on record by the 4[th] respondent. It is contended in the counter affidavit that the petitioner had been engaged on daily wages as Guest House Attender on 9.1.2005. It is stated that the Trustee is the appointing authority as admitted by the petitioner himself and that there was no order of the Trustee appointing the petitioner as Manager in the Guest House. It is submitted that the Guest House of the Sree Raja Rajeswara Temple at Taliparamba was inaugurated in 2005. The Guest House has eight rooms and the Government had accorded sanction for creation of one temporary post of Attender and one Room Boy in the Devaswom Guest House. It is stated that it was against the said temporary post of Attender that the petitioner was engaged on daily wages. It is stated that the decision taken by the Board of Trustees was to regularise the petitioner against the post of Guest House WP(C).No.37014 OF 2016(B) 7 Attender against which he was working. Exhibits R4(c), R4(d) and R4(e) communications are relied on to contend that the request as well as the rejection would show that the petitioner's designation had been correctly shown as Guest House Attender and there was never any request sent up for regularising the petitioner as Manager or Caretaker. It is stated that the petitioner has not been appointed as Manager in the year 2008 and there was no mistake in the regularisation order dated 21.5.2011. It is stated that there are more than 30 temple employees who entered regular service before the petitioner's entry and it would be discriminatory to appoint the petitioner as Manager overlooking the claims of seniors. It is stated that the Managing Committee held on 9.9.2016 considered Exhibit P5 and decided not to appoint the petitioner as Caretaker/Manager, since the petitioner had been working only in the post of Attender. The decision of the Managing Committee is produced as Exhibit R4(g). It is stated that Exhibit R4(i) report had been submitted by the 2[nd] respondent before the District Collector wherein also it is contended that the petitioner cannot be appointed as Caretaker/Manager and that the petitioner's claim for regularisation was only as against the post of Guest House WP(C).No.37014 OF 2016(B) 8 ## Attender. 6. A reply affidavit has also been placed on record by the petitioner producing documents in support of his contentions. 7. I have considered the contentions advanced on all sides. The contention of the petitioner is that by Exhibit P4 proceedings, he had been appointed as Caretaker/Manager in the Guest House in question. It is not in dispute that the appointing authority in respect of the employees of the temple is the Board of Trustees. The 4[th] respondent representing the Trustees has filed a counter affidavit stating that the Board had never decided to appoint the petitioner as Caretaker/Manager. It is contended that it was during the tenure of one M.P.Kuberan Namboothiri as Executive Officer in the Sree Raja Rajeswara Temple at Taliparamba that the alleged appointment of the petitioner as Caretaker had occurred. The Trustee has considered the entire aspects of the matter and has passed Exhibit R4(g) order stating that there was no post of Manager available in the Devaswom and that it is not proposed to create such a post or to appoint the petitioner as Manager in the Guest House. It is stated that the Guest House has only eight rooms and there is no requirement for a post of Manager/Caretaker in WP(C).No.37014 OF 2016(B) 9 the Guest House and that the duties are carried on with the available manpower. It is contended that Exhibit P4 as well as Exhibit P8 are the creation of an Executive Officer who had since been suspended from service and against whom disciplinary action had been taken by the Trustee for grievous offences. It is submitted that even if the Executive Officer had passed some orders appointing the petitioner, it was without the knowledge of the Board of Trustees and the same could not be acted upon. It is stated that the entire issue has been considered by the Commissioner in Exhibit P5 and an appropriate decision has been taken directing the consideration of the issue by the appointing authority. The appointing authority, who has to consider the various aspects of the matter had decided that the petitioner, who had been engaged on daily wages as Guest House Attender is entitled to regularisation only against the said post. It is therefore contended that there can be no direction issued to the Commissioner to correct the designation of the petitioner, since the petitioner had never worked as Guest House Manager/Caretaker and the Trustee Board was unaware of any appointment and had not issued any such appointment order. WP(C).No.37014 OF 2016(B) 10 8. Section 48 of the Madras Hindu Religious and Charitable Endowments Act, 1951 which unequivocally states that the Trustee or the Board Trustees, as the case may be, is the appointing authority in respect of office holders and servants of the temples. In the instant case, the Trustee repudiates any appointment of the petitioner as Manager or Caretaker of the Guest House. A reading of Exhibit R4(b) scheme for administration of the temple would also make it clear that the Executive Officer would have no independent powers of appointment and that he could have acted only under the directions of the Trustee or the Board of Trustees. Though the Trustee repudiates Exhibit P1 decision of the Board of Trustees itself, it is contended that even if Exhibit P1 is accepted in toto, there is no decision as such to appoint the petitioner and any appointment given by an errant Executive Officer without the knowledge or the concurrence of the Trustee would be null and void. It is contended that Exhibit P8 communication in which the petitioner's name was shown as Manager/Caretaker also is issued by the very same Executive Officer and that the Trustee had no knowledge of the same. 9. In any view of the matter, the Commissioner has WP(C).No.37014 OF 2016(B) 11 considered the issue and has held that the petitioner had been working in the Temple only as a Guest House Attender. After filing of this writ petition, the entire aspects have been considered by the Trustee, who is the legally empowered appointing authority and the Trustee has specifically found that there was no valid appointment of the petitioner as Caretaker/Manager with the knowledge of the Trustee. In view of the contentions raised in the counter affidavit filed by the 4[th] respondent and in view of the findings in Exhibit R4(g) order of the Board of Trustees, I am of the opinion that the prayers sought for in the writ petition cannot be granted. The writ petition fails and is accordingly dismissed. Sd/- **ANU SIVARAMAN JUDGE** _vgs_ WP(C).No.37014 OF 2016(B) 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE MINUTES OF THE TRUSTEE BOARD OF THE 3RD RESPONDENT DEVASWOM.** **EXHIBIT P2 TRUE COPY OF DIRECTION GIVEN BY PRESIDENT OF THE MANAGING COMMITTEE/TRUSTEE BOARD TO THE EXECUTIVE OFFICER DATED 20.12.2008.** **EXHIBIT P3 TRUE COPY OF THE SENIORITY LIST OF ATTENDERS PREPARED BY EXECUTIVE OFFICER.** **EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS OF THE EXECUTIVE OFFICE DATED 22.12.2008.** - **EXHIBIT P5 TRUE COPY OF ORDER DATED 23.3.2016 ISSUED BY 2ND RESPONDENT.** **EXHIBIT P6 TRUE COPY OF REMINDER REQUEST SUBMITTED BY PETITIONER TO THE 2ND RESPONDENT DATED 18.6.2016.** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R4 J A TRUE COPY OF THE PROCEEDINGS DATED 27.7.2019**