Chandrabhanu T.P v Malabar Devaswom Board and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **MONDAY, THE 9TH DAY OF OCTOBER 2017/17TH ASWINA, 1939** ## **WP(C).No. 4095 of 2017 (J)** **---------------------------** ## **PETITIONER(S)/PETITIONER:** **------------------------** **CHANDRABHANU T.P** **AGED 48 YEARS,S/O.NARAYANAN NAMBIAR,THARAMMEL HOUSE, PADINJAKKARA,AMMAKAVU,PERINGODU.P.O, PALAKKAD DISTRICT,CLERK,AMMAKKAVU BHAGAVATHI DEVASWOM, AMMAKKAVU,PERINGOD(PO),PALAKKAD DISTRICT.** ## **BY ADVS.SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** **1. THE MALABAR DEVASWOM BOARD REPRESENTED BY ITS SECRETARY,HOUSEFED COMPLEX, ERANJIPALAM,KOZHIKODE-673006.** ## **2. THE COMMISSIONER,** **MALABAR DEVASWOM BOARD,HOUSEFED COMPLEX, ERANJIPALAM,KOZHIKODE-673006.** **3. THE ASSISTANT COMMISIONER, MALABAR DEVASWOM BOARD,CIVIL STATION,TIRUR, MALAPPURAM DISTRICT-676101.** **4. THE MANAGING TRUSTEE, AMAKKAVU BHAGAVATHI DEVASWOM, AMAKKAVU PERINGOD(PO), PALAKKAD DISTRICT-679535.** **R4 BY ADV. SRI.M.KRISHNAKUMAR** **R1-R3 BY ADV. SRI.MAHESH V.RAMAKRISHNAN, SC, MALABAR DEVASWOM BOARD** **R1-R3 BY SRI.MAHESH V.RAMAKRISHNAN, SC, MALABAR DEVASWOM BOARD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 4095 of 2017 (J) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1 TRUE COPY OF THE MINUTES OF THE TRUSTEE BOARD DT.30.08.2009** **EXHIBIT P2 TRUE COPY OF THE NOTICE ISUSED BY THE 3RD RESPONDENT TO THE TEMPLE DATED 4.4.2011** **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DT.27.8.2011** **EXHIBIT P4 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 2ND RESPONDENT DT.29.8.11** **EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DT.10.08.2011** **EXHIBIT P6 TRUE COPY OF THE DECISION OF THE TRUSTEE BOARD DT.11.9.2011** **EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT DT.11.09.2011** **EXHIBIT P8 TRUE COPY OF THE LETTER DATED 11.9.2011 ISSUED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT** **EXHIBIT P9 TRUE COPY OF THE REQUEST OF THE 4TH RESPONDENT TO THE 2ND RESPONDENT FOR INCLUSION OF THE PETITIONER'S NAME IN THE SCHEDULE OF ESTABILSHMENT OF THE TEMPLE DT.16.09.2011** **EXHIBIT P10 TRUE COPY OF THE COMMUNICATION SENT BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT DT.10.10.2011** **EXHIBIT P11 TRUE COPY OF THE REPLY BY THE 4TH RESPONDENT ON 20.10.2011 TO EXT.P10** **EXHIBIT P12 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 3RD RESPONDENT DT.13.06.2014** **EXHIBIT P13 TRUE COPY OF THE COMMUNICATION SENT BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT DT.9.1.2017.** ## **RESPONDENT(S)' EXHIBITS** **----------------------EXHIBIT-R4A TRUE COPY OF THE NOTIFICATION DATED 7.11.2009** **EXHIBIT-R4B TRUE COPY OF THE REPORT DATED 01.02.2011** **EXHIBIT-R4C TRUE COPY OF THE REPRESENTATION DATED 5.09.2012** **EXHIBIT-R4D TRUE COPY OF THE REPRESENTATION DATED 29.06.2013** ## **//TRUE COPY//** ## **PA TO JUDGE** **sab** **ANU SIVARAMAN, J. --------------------------------------------W.P.(C).No.4095 of 2017 ----------------------------------------------Dated this the 9[th] day of October, 2017** ## **JUDGMENT** This writ petition is filed challenging Ext.P13 order issued by the Malabar Devaswom Board and seeking directions to respondents 1 to 3 to revise the Schedule of establishment of the 4[th] respondent temple by including the name of the petitioner. 2. Heard the learned counsel for the petitioner, the learned Standing Counsel appearing for respondents 1 to 3 and the learned counsel appearing for the 4th respondent. 3. It is submitted that the petitioner had been appointed as Clerk in Sree Amakkavu Bhagavathi Devaswom with effect from 1.9.2009. It is stated that the Trustee Board had taken decision to appoint the petitioner temporarily in view of the urgent need for appointment of a Clerk in the Devaswom. The appointment was intimated to the 3[rd] respondent who also called for a report from the Trustee Board as to the details of the petitioner and sought the certificates of the petitioner. The petitioner, later submitted a representation seeking regularization of his service by including his name in W.P.(C).No.4095 of 2017 2 the schedule of establishment. Thereafter, taking note of a request submitted by the Trustee Board, Ext. P5 order was issued sanctioning a post of 'Vazhipadu Clerk' in the temple. Pursuant to Ext.P5, the Trustee Board decided that the petitioner's appointment is to be regularized as against the sanctioned post. The petitioner was also issued with Ext.P7 order to the above effect. Ext.P7 appointment order was forwarded to the 3[rd] respondent for the inclusion of the petitioner's name in the schedule of establishment by Ext.P8. Thereafter, by Ext.10 proceedings dated 10.10.2011, the 3[rd] respondent informed the Trustee that the appointment of the petitioner was in violation of the provisions contained in the circular issued by the Commissioner as J-8-7347/2010 (MDB) dated 15.10.2010. It was therefore contended that the appointment of the petitioner was irregular. 4. The Trustee preferred Ext.P11 explanation pointing out that the appointment had been made due to the urgency of the situation and that the petitioner was fully qualified and eligible for appointment against the permanent post. It was also stated in Ext.P11 that due notice had been given and applications had been called for from eligible persons before the petitioner's appointment had been made. W.P.(C).No.4095 of 2017 3 However, by Ext.P13 proceedings dated 9.1.2017, it has been informed that the appointment of the petitioner which was made before the sanction of the post on 10.8.2011 was not in accordance with law and therefore the same cannot be approved. 5. It is contended by learned counsel for the petitioner that the circular referred to in Ext.10 has no application to the petitioner's case for more reasons than one. It is stated that the said circular was not in force at the time of petitioner's initial appointment on 1.9.2009. It is further stated that the circular has been struck down by a Division Bench of this Court in the decision reported in **Malabar Devaswom Hereditary Trustees Welfare Association v. State of Kerala and others (2016 KHC 4501)** . It is further submitted that it is not in dispute that the petitioner is fully qualified for appointment in the post of 'Vazhipad Clerk'. The reasons stated in Ext.P13 cannot be sustained, since there is no violation of any condition imposed by any statutory provision or Rule in the appointment of the petitioner. 6. The stand of the petitioner is fully supported by the 4[th] respondent as well. It is submitted by the 4th respondent that due notice had been given to all eligible persons before W.P.(C).No.4095 of 2017 4 appointments were made to the post. It is further submitted that the Trustee or the Trustee Board being the appointing authority, there can be no blanket condition imposed by the Board that appointments can be made only with the previous sanction of the Board. It is submitted that there is no such statutory provision available in the HR & CE Act and the Rules made thereunder and any finding by the respondents to that effect would therefore be ultra vires the enabling statute. 7. I have considered the contentions advanced. It is clear that the reason for the rejection of the request for approval made by the Trustee with regard to the appointment of the petitioner by Ext.P13 is that the procedural formalities have not been complied with. It is clear from a reading of Ext.10 that it is the contention of the Board that the formalities as contained in the circular dated 15.10.2010 is the non compliance which has been urged as against the petitioner's appointment. It is evident from Exts.R4(a) and R4(b) that it has been reported that due notice had been given before the petitioner was appointed. In the above view of the matter, it is clear that the reason stated for the rejection of approval is with regard to the non compliance of the circular dated 15.10.2010. Since the said circular had already been W.P.(C).No.4095 of 2017 5 set aside by this Court, I am of the opinion that the request for approval of the appointment made by the Trustee cannot be rejected in terms of the said circular. Ext.P13 is therefore set aside. The petitioner is entitled to inclusion of his name in the schedule of establishment at least with effect from 11.8.2011 favourably. The consequential benefits shall be disbursed to the petitioner within a period of three months from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. **==> picture [29 x 12] intentionally omitted <==** **ANU SIVARAMAN, JUDGE** sab