A.V. Rajagopalan and others v. State of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932** **WP(C).No. 14063 of 2010(G)** **----------------------------------------** ## **PETITIONER(S):** ## **-----------------------** **1. A.V. RAJAGOPALAN, S/O.LATE S.V. SANAKARA WARRIAR, AGED 43 YEARS, LOWER DIVISION CLERK, OFFICE OF THE SREE MANGOTTU KAVU DEVASWOM, ATHIPOTTA POST, ALATHUR,PALAKKAD-678 544, RESIDING AT ATHIPOTTA WARRIAM, ATHIPOTTA PO, ALATHUR POST, PALAKKAD.** **2. N. SUBHASH, S/O.SRI.K.N. NARAYANAN, AGED 29 YEARS, LOWER DIVISION CLERK,OFFICE OF THE SREE MANGOTTU KAVU DEVASWOM, ATHIPOTTA POST, ALATHUR, PALAKKAD-678 544, RESIDING AT PADATHU HOUSE, ATHIPOTTA P.O., ALATHUR POST,PALAKKAD.** **3. M. NARAYANANKUTTY, S/O.SRI.K.C.MANGODAN, AGED 32 YEARS, LOWER DIVISION CLERK, OFFICE OF THE SREE MANGOTTU KAVU DEVASWOM, ATHIPOTTA POST, ALATHUR, PALAKKAD-678 544, RESIDING AT 'KCM NIVAS' KUNDUPARAMBIL, ATHIPOTTA P.O., ALATHUR POST, PALAKKAD.** **4. K.V. MURALEEDHARAN,S/O.SRI.K.V. NARAYANA WARRIAR, AGED 37 YEARS, LAMP HOLDER, SREE MANGOTTU KAVU DEVASWOM, ATHIPOTTA POST, ALATHUR, PALAKKAD-678 544, RESIDING AT KIZHAKKE WARRIAM, ATHIPOTTA P.O, ALATHUR POST, PALAKKAD.** **5. P. HARIDASAN,S/O.THE LATE K. GOVINDAN NAIR AGED 52 YEARS, ATTENDER, OFFICE OF THE SREE MANGOTTU KAVU DEVASWOM, ATHIPOTTA POST, ALATHUR, PALAKKAD -678 544, RESIDING AT POOVAKKODE HOUSE, ATHIPOTTA P.O., ALATHUR POST,PALAKKAD.** **BY SRI.O.V.RADHAKRISHNAN, SENIOR ADVOCATE, ADV. SRI.C.S.GOPALAKRISHNAN NAIR.** **RESPONDENT(S):** **--------------------------** **1. STATE OF KERALA, REPRESNTED BY ITS SECRETARY, REVENUE (DEVASWOMS) DEPARTMENT, THIRUVANANTHAPURAM.** **WP(C).No. 14063 of 2010(G)** **2. SREE MANGOTTU KAVU DEVASWOM, REPRESENTED BY ITS EXECUTIVE OFFICER, ATHIPOTTA P.O., ALATHUR, PALAKKAD – 678 544.** **3. COMMISSIONR, MALABAR DEVASWOM BOARD, ERANJIPPALAM, KOZHIKODE.** **4. P.M. PARAMESWARAN NAMBOOTHIRIPAD,** - **'FIT PERSON' HEREDITORY TRUSTEE AND MANAGING TRUSTEE, SREE MANGOTTU KAVU DEVASWOM, ATHIPOTTA P.O., ALATHUR, PALAKKAD – 678 544.** **5. EXECUTIVE OFFICER, SREE MANGOTTU KAVU DEVASWOM, ATHIPOTTA P.O., ALATHUR, PALAKKAD-678 544.** **R1 BY GOVT. PLEADER MR.ANTONY MUKKATH. R3 BY ADV. SRI.K.MOHANAKANNAN,SC,MALABAR DB. R5 BY ADV. SRI.MOHAN C.MENON.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2010,ALONG WITH WPC NO. 14133 OF 2010 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 14063 of 2010(G)** **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE ORDER DATED 30/04/2006 OF THE 2ND RESPONDENT APPOINTING THE 1ST PETITIONER.** **EXT.P2: COPY OF THE ORDER DATED 30/04/2006 OF THE 2ND RESPONDENT APPOINTING THE 2ND PETITIONER.** **EXT.P3: COPY OF THE ORDER DATED 30/04/2006 OF THE 2ND RESPONDENT APPOINTING THE 3RD PETITIONER.** **EXT.P4: COPY OF THE ORDER DATED 30/04/2006 OF THE 2ND RESPONDENT APPOINTING THE 4TH PETITIONER.** **EXT.P5: COPY OF THE ORDER DATED 30/04/2006 OF THE 2ND RESPONDENT APPOINTING THE 5TH PETITIONER.** **EXT.P6: COPY OF THE NOTICE DATED 27/02/2007 OF THE 2ND RESPONDENT.** **EXT.P7: COPY OF THE REPRESENTATION DATED 06/03/2007 SUBMITTED BY THE 4TH PETITIONER TO 2ND RESPONDENT.** **EXT.P8: COPY OF THE ORDER DATED 12/04/2007 IN WP(C) NO. 12268/2007 OF THIS HONOURABLE COURT.** **EXT.P9: COPY OF THE JUDGMENT DATED 11/07/2007 IN WP(C) NO. 12268/2007 OF THIS HONOURABLE COURT.** **EXT.P10: COPY OF THE ORDER NO.1/2007 DATED 27/06/2007 OF THE 5TH RESPONDENT.** **EXT.P11: COPY OF THE ORDER DATED 12/07/2007 OF THE 4TH RESPONDENT.** **EXT.P12: COPY OF THE ORDER NO.17/07 DATED 26/11/2007 OF THE 3RD RESPONDENT.** **EXT.P13: COPY OF THE ORDER NO.9167/DEV.1/2010/RD DATED 01/03/2010 OF THE 1ST RESPONDENT.** **EXT.P13(a): COPY OF THE REPORT NO.E9(VE.2/08/PKD)31906/07 DATED 03/10/2009 OF THE VIGILANCE & ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM.** **EXT.P14: COPY OF THE ORDER NO.J2/4269/06/MDB DATED 19/04/2010 OF THE 3RD RESPONDENT.** **RESPONDENT'S EXHIBITS: NIL** **//TRUE COPY//** ## **P.A. TO JUDGE** **rs.** ## ANTONY DOMINIC, J ....................... W.P.(C)s.14063, 14133, 14134 & 15058/2010 ....................... Dated this the 16[th ] day of June, 2010 ## JUDGMENT In these writ petitions the challenge is against the order passed by the Commissioner, Malabar Devaswom Board terminating the services of the petitioners. Since the issues are common, these cases were heard together and are being disposed of by this common judgment. 2. For convenience, I will refer to the facts pleaded in W.P.(C). 14063/2010. 3. By Exts.P1, P2 and P3 orders issued by the 4[th] respondent, the fit person, appointed under Section 47 of the Hindu Religious and Charitable Endowments Act, 1951, (hereinafter referred to as 'the Act'), petitioners 1 to 3 were appointed as Lower Division Clerks under the 2[nd] respondent, Sree Mangottu Kavu Devaswom. Similarly by Ext.P4 order dated 30.4.2006, the 4[th] petitioner was appointed as Lamp Holder and by Ext.P5 order dated 30.4.2006, 5[th] petitioner was appointed as Attender/Watchman. W.P.(C)s.14063/10 & Connected Cases 2 4. Subsequently, on the allegation that the appointments of the petitioners were irregular, the 5[th] respondent issued Ext.P6 show cause notice proposing to cancel their appointments to which they submitted Ext.P7 reply. The show cause notice was challenged before this Court in W.P.(C).12268/2007 filed by the petitioners herein and the petitioner in W.P.(C).15058/2010. In that writ petition, Ext.P8 order was passed by this Court, leaving it open to the 5[th] respondent to continue the proceedings. That writ petition was disposed of by judgment dated 11.7.2007 a copy of which is produced as Ext.P9. Subsequent to the disposal of the writ petition as above, 5[th] respondent passed Ext.P10 order terminating the appointment of the petitioners. It would appear that against Ext.P10, petitioners submitted representations to the 4[th] respondent, the fit person who appointed them and the 4[th] respondent rendered Ext.P11 order setting aside Ext.P10 order of the 5[th] respondent. Seeking implementation of Ext.P10, invoking the power of the Deputy Commissioner under Section 57(c) of the Act, petitioners filed O.A.17/2007. Accordingly Ext.P12 order was passed remanding the matter to the 5[th] respondent for a fresh consideration. W.P.(C)s.14063/10 & Connected Cases 3 5. While the matter was pending before the 5[th] respondent as above, on a complaint alleging irregularities in the appointment, Government ordered a vigilance enquiry and a report was submitted by the Deputy Superintendent of Police, Vigilance & Anti Corruption Bureau, Palakkad. This report was submitted to the Director of Vigilance and Anti Corruption Bureau who submitted Ext.P13(a) recommendation to the 1[st] respondent. One of the recommendations was that 14 appointments made by the 4[th] respondent should be cancelled. Government considered the matter and issued Ext.P13 proceedings, directing the 3[rd] respondent, Commissioner, to take immediate action as suggested in the vigilance report and the recommendation of the Director of Vigilance under intimation to the Government. Based on Ext.P13, Commissioner issued Ext.P14 proceedings terminating the services of the petitioners and it is at that stage, this writ petition was filed seeking to challenge the proceedings resulting in their termination. 6. W.P.(C)s.14133/2010, 14134/2010 and 15058/2010 are also filed by the similarly situated persons who were also appointed in the Devaswom and whose appointments were also terminated by W.P.(C)s.14063/10 & Connected Cases 4 the aforesaid order of the Commissioner. 7. The first contention raised by the learned senior counsel appearing for the petitioners is that before issuing Exts.P13 or P14 petitioners were not put on notice. It is also contended that in the vigilance report, there is no finding of any irregularity in the appointment of the petitioners in W.P.(C).14063/2010. According to the learned counsel, in view of the provisions contained in Section 47 read with 58(5) of the Act, 4[th] respondent has been appointed as 'Fit person' and that so long as he is the fit person, by virtue of Section 48(1) of the Act, he is entitled to make appointments to the Devaswom. Such appointments, it is contended, cannot be interfered with by the Deputy Commissioner or the Commissioner whose powers are those enumerated in Section 57 and 20 of the Act respectively. 8. Petitioner in W.P.(C).15058/2010 contended that the main allegation found against him is that on the date of appointment, he was a minor. It is contended that Ext.P3 in this writ petition is the extract of his SSLC book and going by the date of birth as entered in Ext.P3, when he was appointed on 15.4.2006, he had already W.P.(C)s.14063/10 & Connected Cases 5 completed 18 years on 5.12.2005. The argument of the learned senior counsel appearing for the petitioner in W.P.(C).14063/2010 was adopted by the learned counsel appearing for the petitioners in W.P.(C)s.14133/2010 and 14134/2010. According to him, on remand the whole issue is pending consideration and therefore, at this stage, it was unnecessary to dispense with the service of the petitioners who were appointed by the Fit person in the service of the Devaswom as early as in 2003 and 2006. 9. On the other hand, learned counsel appearing for the Devaswom Board resisted the submissions made by the learned counsel for the petitioners. According to the learned counsel for the Devaswom Board, appointments ought to have been made in terms of the Rules framed under Section 100 (ii)(y) of the Act. It is contended that these appointments were made without inviting applications and without conducting any interview or adopting any other transparent selection procedure. He also contended that Ext.P7 in W.P.(C).15058/2010 is the Scheme governing the administration of the Devaswom and that in terms of Clause 8, appointments are to be made by the Executive Officer of the Devaswom which position, according to him, was upheld by this W.P.(C)s.14063/10 & Connected Cases 6 Court in the judgment in W.P.(C).12268/2007. 10. I have considered the submissions made. In my view, the first question to be considered is whether the appointments in question were in terms of the provisions contained in the Scheme and the Act. If, the appointments are found to be contrary to the Scheme and hence invalid, want of notice, and the consequent violation of principles of natural justice, may not be of much consequence. This is for the reason that even if notice was given, petitioners would not have been in a position to improve their case in any manner. Therefore, I will consider that question first. 11. Petitioners have no case that they were appointed by anybody other than the 'Fit person', who has been appointed in terms of the provisions of Section 47 and 58(5) of the Act. Administration of the Devaswom is governed by the provisions of the Scheme, a copy of which is produced as Ext.P7 in W.P.(C).15058/2010. Clause 8 of the Scheme reads as follows. ക�ര�ന�ര�ഹണ ഉദ���ഗസന� ട�സ�ദ��ര��ന�റ അ�ഗ�ക�രദ����ക��� ദ ട!��ന" എല� ക�ഴ�&�വനക�നരയ�� ന�യമ�ക�ന �ള അധ�ക�ര� W.P.(C)s.14063/10 & Connected Cases 7 ഉണ�യ�ര�ക�ന!�ണ�. ന�യമനങളക� വക �പ�ന�റ അ�ഗ�ക�ര� വ�ങ�യ�ര�കണ�. &�വനക�ര ക�ര�ന�ര�ഹണ ഉദ���ഗസന�റ ക�ഴ�ല ട4വര��ദകണ! �� അദ5ഹ��ന�റ ന��യമ�യ എല� ന�രദ5ശങള �� അന �സര�ച� ട4വര��ദകണ!�മ�ണ�. ദ ട!��ല വല ക�ഴ�&�വനക�രന�റ ദ4ര�" �� നല മ!�യ�യ ക�രണ��ല 4�ഴ ച�മ��കദയ� അയ�നള സസ�ന4ന� നചയ�കദയ� ന�ക� നചയ�കദയ�, ��സ�മ�സ� നചയ�കദയ� നചയ�വ�ന�ള അധ�ക�ര� ക�ര�ന�ര�ഹണ ഉദ���ഗസന� ഉണ�യ�ര�ക�ന!��, ആയ!�ന� ട�സ� ദ��ര��ന�റ അ�ഗ�ക�ര� ഉണ�യ�ര�ദകണ! �മ�ണ�. മ�ദന&��ഗ� ട�സ�ററ�ന�റ ക"�4നനക!�ര�യ� ന�4��ട� കമ�ഷണരക� അപ�ല ദ��ധ�പ�ക�വ�ന!�ണ�. 12. This shows that the Executive officer has the exclusive power to make appointments. The only restriction is such appointments should be made with the approval of the Board of Trustees. Trustees are not in office and it is in their place that the Fit person is holding the office. As against these provisions, it is the Fit person who has made the appointments. Therefore, appointments admittedly are irregular and cannot be ratified in any manner. 13. Learned senior counsel for the petitioners contended that in terms of the provisions contained in Section 48(1) of the Act, W.P.(C)s.14063/10 & Connected Cases 8 Trustees have been given the exclusive power to make appointments and therefore, Fit person was entitled to make appointments. However, having regard to the provisions in Clause 8 of the Scheme read with Clause 14, in my view, the provisions of the Scheme will prevail and if so, it is the Executive Officer with the approval of the Trustees alone has the power to make appointments, and the Trustee or the Fit person does not have any such power. Therefore, the irresistible conclusion is that the appointment of the petitioners was illegal. 14. In my view, it is also not open to the petitioners to contend that the Executive Officer is incompetent to make appointments to the Devaswom. As already seen, when the petitioners in W.P.(C). 14063/2010 and the petitioner in W.P.(C).15058/2010 were issued show cause notice proposing to cancell their appointments, they approached this Court and filed W.P.(C).12268/2007 contending that the Trustee is the appointing authority and therefore, show cause notice issued by the Executive Officer was without jurisdiction. The contentions were appreciated and the writ petition was disposed of by judgment dated 11.7.2007 a copy of which is produced as Ext.P9 in W.P.(C).14063/2010. For convenience the W.P.(C)s.14063/10 & Connected Cases 9 said judgment is extracted hereunder. “The petitioners are the employees of Sree Mangottu Kavu Devswom, Athipotta, Alathur, Palakkad District. They were appointed by the third respondent, Trustee. According to them, the Trustee is the appointing authority and they were legally and validly appointed. While so, they have been served with Ext.P1 notice, proposing to terminate them from service, on the ground that they were appointed irregularly. They have submitted Ext.P2 reply to Ext.P1 notice. Later, the Executive Officer who issued Ext.P1 also heard the petitioners, as evident from Ext.P3. At this stage, this writ petition was filed, contending that the second respondent has no jurisdiction to terminate the services of the petitioners. I heard the learned counsel for the respondents also. The third respondent vehemently supported the contention of the petitioners. But, the learned Government Pleader, produced a copy of the scheme approved by the competent Civil Court and published in the Palakkad District Gazette, for administering the temple concerned. As per clause 8 of the said scheme, the Executive Officer with the approval of the Board of Trustees shall make the appointments of employees of the temple. Before W.P.(C)s.14063/10 & Connected Cases 10 making the appointments, he should get previous sanction of the department also. The Executive Officer is also authorized to suspend, remove or dismiss an employee. For that also, he should obtain approval of Board of Trustees. In view of the above position, there is no justification for this Court to interfere with the show cause notice, as the Executive Officer has jurisdiction to issue the same. Accordingly the writ petition is closed, giving liberty to the second respondent to pass final orders in the matter. If the said order is adverse to the petitioners, they will be free to work out their remedies, against it.” (emphasis supplied) 15. A reading of the judgment shows that this Court has considered the objection that it was only the Trustee who had the competence to make appointments and that the 5[th] respondent had no jurisdiction to issue the show cause notice. Repelling that contention, it was held that the Executive Officer was the competent authority. On that basis, show cause notice issued was sustained. This judgment has become final. Therefore, it is not open to the petitioners in W.P.(C)s.14063/2010 and 15058/2010, who are parties to the above said judgment, to contend that the W.P.(C)s.14063/10 & Connected Cases 11 Trustee alone had the competence to make appointments. 16. Learned counsel for the petitioners in W.P.(C)s.14133/2010 and 14134/2010 contended that they were not parties to the said judgment and therefore they are not bound by the above findings. Although it is correct that they were not parties to the said judgment, in view of the clear findings of this Court in Ext.P9 judgment, even if these petitioners are not parties to the said judgment, it is not open to them to canvass for a judgment contrary to findings contained in Ext.P9 judgment. On the other hand, if they are aggrieved by the findings in Ext.P9 judgment or if the findings therein are prejudicial to their interests, instead of seeking contradictory directions from this Court, the procedure which should have been adopted by them is either to get the judgment reviewed by filing an appropriate application or to have filed an appeal against the said judgment with the leave of this Court. 17. In Ramachandran v. Food Corporation of India (1989 (2) KLT 112), a Division Bench of this Court considered this very question and held as follows. W.P.(C)s.14063/10 & Connected Cases 12 “It is in the aforesaid circumstances that respondents 3 and 4 presented O.P.No.71 of 1983 praying for the quashing of Ext.P3 and P3(a) and for a declaration that the judgment Ext.P2 and the judgment in W.A.251/82 are not binding on respondents 3 and 4 and for other consequential reliefs. The principal complaint of respondents 3 and 4 is that as they were not parties to the earlier decisions in O.P.4420 of 1978 and W.A.251/82, the directions issued by this Court in those judgments shall not adversely affect their rights. The learned single Judge accepted this contention, quashed Exts.P3 and P3(a) in so far as it relates to the appellants and directed that the dispute between the parties should be decided afresh by the Corporation after hearing all the parties concerned. It is the said judgment that is challenged in this appeal. Before we address ourselves to the merits of the case, we consider it appropriate to advert to certain procedural aspects. It is not disputed that in O.P.4420/78 and in W.A.251/82 affirming the said judgment in the O.P respondents 3 and 4 were not parties. Assuming for the sake of argument that respondents 3 and 4 were necessary parties in the earlier cases, the question for consideration is as to what is the proper procedure to be adopted in a case like this. As things stand, there is one set of W.P.(C)s.14063/10 & Connected Cases 13 directions issued in O.P.4420/78 affirmed in W.A.251/82 directing the Food Corporation of India to assign notional dates of promotion to the appellants as and when vacancies in the category of assistants Grade II arose after they stood transferred to the south zone. The said decision having been implemented and Exts.P3 and P3(a) having been passed by the Corporation, at the instance of respondents 3 and 4 the learned single Judge has issued a direction in O.P.71/82 quashing those orders which were made in obedience to the directions issued by this Court to the Corporation and issued a further direction to the Corporation to examine the matter afresh after due notice to all the parties. Thus we arrive at a situation where there are two conflicting directions, one in O.P.4420/78 affirmed in W.A.251/82 directing the Food Corporation of India to do certain things and another direction issued by the learned single Judge in O.P.71/83 commanding the Corporation to do something at variance with what has been directed by this Court in the earlier case. So far as the Corporation is concerned it cannot satisfactorily comply with the conflicting directions issued by this Court in two sets of cases. In a situation like this, if a particular person is a necessary party and a decision has been rendered without impleading the necessary party, the proper course to be adopted is W.P.(C)s.14063/10 & Connected Cases 14 not to seek contrary directions at the hands of this Court under Article 226 but to make an appropriate petition to reopen the earlier judgment on the ground that he was a necessary party and that the adverse decision rendered affects him and to get himself impleaded as a party and get the judgment rendered behind his back reviewed. “ 18. Therefore, the fact that the petitioners in W.P.(C) s.14133/2010 and 14134/2010 are not parties to Ext.P9 judgment, is inconsequential insofar as the findings in that judgment are concerned. 19. Now turning to the question of want of notice complained of by the petitioners, though this contention appears to be attractive, having considered this matter in its entirety, I am not persuaded to accept this contention. When a notice is given, petitioners certainly will have an opportunity to raise their contentions. However, proceedings concluded, need be invalidated for want of notice, only if the petitioners are able to demonstrate, that if notice were given, and an opportunity was extended to them, they would have been in a position to improve their case and that by the failure to give notice, they were prejudiced. In this case, admittedly, their W.P.(C)s.14063/10 & Connected Cases 15 appointments have been made by an incompetent person and for that reason, appointments are illegal. This position would not have been improved to the advantage of the petitioners in any manner even if a show cause notice was given and they were afforded an opportunity to make their representations. Therefore in the fact situation of this case, no prejudice whatsoever has been caused to the petitioners for want of notice. Therefore I am not persuaded to accept this contention and invalidate the impugned order for that reason. In the result, writ petitions are only to be dismissed and I do so. ANTONY DOMINIC, Judge mrcs