Govindankutty.K. v. Commissioner, Malabar Devaswom Board & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR FRIDAY, THE 26TH DAY OF SEPTEMBER 2014/4TH ASWINA, 1936 WP(C).No. 8513 of 2013 (L) --------------------------- PETITIONER: ## --------------- GOVINDANKUTTY.K., AGED 82 YEARS S/O.ACHUTHAN NAIR, HEREDITARY TRUSTEE ARYANAMBI TEMPLE, ARIYOOR, MANNARKKAD PALAKKAD DISTRICT, RESIDING AT :KOORIYATTIL HOUSE ARIYOOR(PO), MANNARKKAD, PALAKKAD DISTRICT. BY ADVS.SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA RESPONDENTS: ------------------ 1. THE COMMISSIONER, MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERANHIPALAM, KOZHIKODE-673006. ## 2. THE DEPUTY COMMISSIONER, MALABAR DEVASWOM BOARD, CIVILS STATION KOZHIKODE-673001. ## 3. THE ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD, PALAKKAD DIVISION CIVIL STATION, PALAKKAD-678001. ## 4. A.VASUDEVAN, EXECUTIVE OFFICER, SREE ARYANAMBI DEVASWOM ARIYOOR(PO), MANNARKKAD, PALAKKAD-678583. R1 TO R3 BY ADV. SRI.V.KRISHNA MENON, SC, MALABAR DEVASWOM BOARD R1 -R 4 BY ADV. SRI.PARTHASARATHY.B, SC, MALABAR DEVASWOM BOARD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-09-2014, THE COURT ON 26.9.2014 DELIVERED THE FOLLOWING: WP(C).No. 8513 of 2013 (L) --------------------------- ## APPENDIX ## PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT-P1 TRUE COPYOF THE SCHEME FRAMED IN OA.33/1959 OF THE 2ND RESPONDENT DATED 29.8.1980. EXHIBIT-P2 TRUE COPY OF THE ORDER NO.A3 2159/84 DATED 7.11.1984 OF THE ASST.COMMISSIONER,HR & CE,PALAKKAD. EXHIBIT-P3 TRUE COPY OF THE ORDER PASSED BY ASST.COMMISSIONER,HR & CE DATED 25.3.1998. EXHIBIT-P4 TRUE COPY OF THE ORDER PASSED BY THE DEPUTY COMMISSIONER,HR & CEDATD 7.8.2006. EXHIBIT-P5 TRUE COPY OF THE PROCEEDINGS ISSUED BY THE DEPUTY COMMISSIONER HR & CE DATED 13.9.2006. EXHIBIT-P6 TRUE COPY OF THE PROCEEDINGS ISSUED BY THE ASST.COMMISSIONER DATED 3.4.2007. EXT.P7 : TRUE COPY OF THE NOTICE ISSUED BY THE THIRD RESPONDENT DT. 4.1.2013. EXHIBIT-P8 : TRUE COPY OF THE PROCEEDINGS ISSUED BY THE IST RESPONDENT DATED 31.7.2010. RESPONDENT(S)' EXHIBITS --------------------------------------- EXT.R1 A : TRUE COPY OF THE ORDER NO.A3/1609/2011 DT. 21.11.2011. (TRUE COPY) P.S. TO JUDGE. ## **P.N.RAVINDRAN & P.B.SURESH KUMAR, JJ.** **--------------------------------------------------------------** ## **W.P.(C) No.8513 of 2013** **-------------------------------------------------------------Dated 26[th] September, 2014.** ## **J U D G M E N T** ## **P.B.Suresh Kumar, J.** Ext.P8 order by which the fourth respondent is appointed as the Executive Officer of Sree Arianambi Temple at Mannarkad in Palakkad District, hereinfter referred to as 'the temple', for short, is under challenge in this writ petition. 2. Petitioner is the hereditary trustee of the temple. The temple is being administered in accordance with the provisions of Ext.P1 scheme, settled under Section 58(1) of the Madras Hindu Religious and Charitable Endowments Act, 1951, hereinafter referred to as 'the Act', for short . Clauses 3 and 4 of Ext.P1 scheme read thus : "(3) The Trustee shall appoint an Executive Officer, with the approval of the appropriate authority under the Act on a salary to be fixed by the Trustee. The conditions of service of the Executive Officer shall be regulated by the rules framed under the Act. (4) The Executive Officer shall work under the supervision W.P.(C) No.8513 of 2013 2 of the trustee and the Trustee shall have the power for good and sufficient causes to suspend, remove or dismiss the Executive Officer from service. But he shall have a right of appeal to the Deputy Commissioner." According to the petitioner, in exercise of the powers under the scheme, the trustee of the temple has appointed one Subramanian as the Executive Officer of the temple and the said appointment was approved by the area committee constituted under the Act on 7.11.1984 in accordance with Ext.P1 scheme. Later, as per Ext.P3 order, the Executive Officer appointed by the trustee was absorbed and appointed as Executive Officer in the department. According to the petitioner, there was no Executive Officer in the temple for some time and later, as per Ext.P4 order, Subramanian referred to above, who was the Executive Officer of another temple then, was given the additional charge of the Executive Officer of the temple also. Accordingly, Subramanian was discharging the duties of the Executive Officer of the temple. 3. The case of the petitioner is that on 4.1.2013, the petitioner came to know from Ext.P7 communication of the third respondent that the fourth respondent has been appointed as the Executive Officer of the temple on 31.7.2010, W.P.(C) No.8513 of 2013 3 as per Ext.P8 order of the first respondent and that he was directed to take charge as the Executive Officer of the temple within one week. It is alleged by the petitioner in the writ petition that it is only when he received a copy of Ext.P7, he came to know of Ext.P8 order, by which the fourth respondent was appointed as the Executive Officer of the temple. According to the petitioner, the power to appoint the Executive Officer of the temple is vested in the trustee of the temple as per Ext.P1 scheme, and the first respondent has, therefore, no authority to appoint the Executive Officer. 4. A counter affidavit has been filed by the first respondent. Sans unnecessary details, the stand taken by the first respondent in the counter affidavit is that the temple is a D-grade temple under the Board; that there is no work in the temple for a full time Executive Officer; that the income of the temple is insufficient to pay the salary and other emoluments of the Executive Officer and that Ext.P8 order is, therefore, an order in the best interests of the temple. It was also contended by the first respondent in the counter affidavit that it is due to the aforesaid reasons, Subramanian was put in charge of the temple for quite a long time and the hereditary trustee had W.P.(C) No.8513 of 2013 4 accepted the said action of the Department. 5. As stated above, Ext.P8 order is challenged on the ground that the first respondent has no authority to appoint an Executive Officer for the temple. It is beyond dispute that the temple is being administered in accordance with Ext.P1 Scheme and Ext.P1 scheme provides that it is for the trustee to appoint an Executive Officer for the temple. The only requirement under the scheme is that the appointment should be approved by the appropriate authority under the Act. In **Parakkad Sree Bhagavathi Devaswom v. Malabar Devaswom Board** [2010(4) KLT 568], an identical issue arose for consideration and this Court held that the power to approve an appointment does not take within its scope the power to appoint. The relevant portion of the said judgment reads as follows : "5. We do not deem it necessary to go into the controversy raised on facts regarding the competence or availability of Sri.Ramanathan. This is pithily because the issue in hand revolves on a question of jurisdiction. The Parakkad Sree Bhagavathi Devaswom is an autonomous body, governed by a scheme approved by the District W.P.(C) No.8513 of 2013 5 Court and the temple is to be administered in terms of that. The said scheme provides for appointment of officers and staff. This includes the appointment of the Manager for the temple. The need for a Manager for the Devaswom is not in dispute. The power to appoint is with the Devaswom. Even in terms of the H.R. & C.E. Act, the power of the competent authority under that Act is only to supervise the affairs of the temple. The power to supervise does not include the power to appoint. Even assuming that the appointment has to be approved, the power to approve or the power to refuse approval does not confer the power to appoint. Therefore, the respondents, who are merely statutory authorities under the H.R. & C.E. Act, are not the authorities to make the appointment.” The above judgment has been rendered by a Bench of this Court in the context of a dispute as to the authority of the Parakkad Sree Bhagavathi Devaswom to appoint a Manager of the Devaswom. In view of the provisions contained in Ext.P1 scheme, we are of the view that the appointment of the fifth W.P.(C) No.8513 of 2013 6 respondent as the Executive Officer of the temple by the first respondent is without authority. Ext.P8 order to the extent it directs the appointment of the fifth respondent as the Executive Officer of the temple is, accordingly, quashed. The writ petition is allowed as above. Sd/- ## **P.N.RAVINDRAN, JUDGE.** Sd/- **P.B.SURESH KUMAR, JUDGE.** tgs (true copy)