Jithesh P. v. Malabar Devaswom Board and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** ## **MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA, 1941** ## **WP(C).No.27755 OF 2018(T)** ## **PETITIONER:** **JITHESH P. AGED 30 YEARS S/O.LATE P.RAJAN PALAKKAL HOUSE, KOLLAM P.O, KOYILANDI, KOZHIKODE DISTRICT. BY ADV. SRI.V.N.RAMESAN NAMBISAN, SC,** ## **RESPONDENTS:** |**1**|**THE COMMISSIONER**| |---|---| ||**MALABAR DEVASWOM BOARD,**| ||**KOZHIKODE**| ||**PIN-673307**| |**2**|**THE CHAIRMAN**| ||**BOARD OF TRUSTEES,**| ||**PISHARIKAVU DEVASWOM,**| ||**KOLLAM P.O., KOYILANDI,**| ||**KOZHIKODE DISTRICT,**| ||**PIN - 673 307.**| |**3**|**THE EXECUTIVE OFFICER**| ||**PISHARIKAVU DEVASWAOM,**| ||**KOLLAM P.O., KOYILANDU,**| ||**KOZHIKODE DISTRICT,**| ||**PIN - 673 307.**| |**4**|**M.P.R.RAJESH**| ||**KAILAS APARTMENT,**| ||**KOLLAM.P.O.,**| ||**KOZHIKODE**| |**5**|**RAGESH.K.K**| ||**UMMACHIVEETIL HOUSE, KOLLAM.P.O.,**| ||**KOZHIKODE**| |**6**|**JAYA VIJAYAN**| ||**AYODHYA HOUSE,**| ||**KUNNATHARA.P.O.**| ||**KOZHIKODE DISTRICT**| **WP(C) No.27755 OF 2018(T)** **2** **7 C.VENUGOPALAN KANIYAMKULATHIL HOUSE, MOODADI.P.O, KOZHIKODE DISTRICT 673307.** **R1 BY SRI.R.LAKSHMI NARAYAN, SC, MDB R2 BY ADV. SMT.T.V.NEEMA R3 BY ADV. K.MOHANAKANNAN R3 BY ADV. A.R.PRAVITHA R4-6 BY ADV. R.PARTHASARATHY R4-6 BY ADV. SMT.SEEMA R7 BY ADV. SMT.JAYASREE K.P.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) No.27755 OF 2018(T)** **3** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 2[nd] day of March, 2020**_ Petitioner's father who was working as Lamp Lighter in the Pisharikavu Devaswom at Kollam, passed away on 28.08.2016. An application was submitted by the petitioner on 23.09.2016 seeking compassionate appointment. From Ext.P1 dated 03.12.2016, it is discernible that the Board of Trustees of the Temple took a decision to appoint the petitioner as Vazhipadu Clerk, taking into account among other things, petitioner's educational qualifications also. By Ext.P2 letter dated 03.12.2016, the Executive Officer sent a letter to the 1[st] respondentCommissioner proposing to appoint the petitioner as Vazhipadu Clerk. By Ext.P3 letter dated 06.06.2017, the Inspector of the Malabar Devaswom Board also submitted a report that the petitioner is to be given appointment as Vazhipadu Clerk and the decision of the Board of Trustees is **WP(C) No.27755 OF 2018(T)** **4** just and proper. 2. It is the contention of the petitioner that in spite of all these recommendations, the respondents did not offer the post of Vazhipadu Clerk to the petitioner. Therefore, the petitioner filed W.P.(C) No.40231/2017. Subsequently, the Commissioner passed Ext.P7 order on 09.03.2018. In Ext.P7, the Commissioner noted that one vacancy of Vazhipadu Clerk was converted to 'Vazhipadu Assistant' and a Peon named Sri. C. Venugopal (the 7[th] respondent) was accommodated in the said newly created vacancy. The Commissioner noted that the Board of Trustees of the temple has decided on 15.11.2017 to appoint the petitioner as Lamp Lighter against the existing vacancy. However, taking into account the recommendations of the Board of Trustees and the report of the Inspector, the Commissioner ordered that as and when a vacancy of Vazhipadu Clerk arises, or as and when a new vacancy of Vazhipadu Clerk is created, the petitioner should be given first preference. 3. The petitioner thereafter submitted **WP(C) No.27755 OF 2018(T)** **5** representations to the 1[st] respondent-Commissioner pointing out that there are vacancies of Vazhipadu Clerk in which temporary hands are continuing. In Ext.P8 representation, the petitioner alleged that there are four other vacancies of Vazhipadu Clerk existing in the temple. The petitioner also caused to send Ext.P9 Lawyer notice dated 07.05.2018 pointing out the existence of vacancies. 4. However, the petitioner contends that respondents 1 to 3, in the meanwhile, regularised the temporary service of respondents 4 to 6 and filled up the vacancies of Vazhipadu Clerk. In such circumstances, the petitioner seeks for a direction to the 2[nd] respondent to appoint him to the existing post of Vazhipadu Clerk. 5. The 3[rd] respondent filed a counter affidavit in the writ petition. The 3[rd] respondent stated that application for regularisation of temporary employees, who were working in the temple for long period, was submitted on 20.07.2010. The issue was pending before the Commissioner and a decision was taken finally only on 01.07.2017 and it is **WP(C) No.27755 OF 2018(T)** **6** consequent to the said decision that respondents 4 to 6 were regularised. The application for regularisation of respondents 4 to 6 was pending before the Commissioner even before the petitioner's father passed away. The 3[rd] respondent further contended that the petitioner was offered the post of Lamp Lighter on a regular basis. However, the petitioner did not accept the said post and instead, he is continuing to do the same job on a daily wage basis. The authorities sent a registered appointment letter to the petitioner but the appointment so offered was refused by the petitioner. The 3[rd] respondent stated that as on the date of filing of the writ petition, there is no vacancy of Vazhipadu Clerk. Therefore, the writ petition is without any merits. 6. Respondents 4 to 6, who were regularised in the post of Vazhipadu Clerk, and the 7[th] respondent, who was appointed as Vazhipadu Assistant, were impleaded in the writ petition. 7. I have heard the learned counsel for the petitioner, learned Standing Counsel for the 1[st] respondent- **WP(C) No.27755 OF 2018(T)** **7** Malabar Devaswom Board, counsel for the 2[nd] respondentBoard of Trustees, counsel for the 3[rd] respondent-Executive Officer and counsel representing respondents 4 to 7. 8. The learned counsel for the petitioner submitted that his right to appointment as Vazhipadu Clerk has been crystalised as per Exts.P1 and P7 and the failure of the 3[rd] respondent to offer him the post of Vazhipadu Clerk is grossly arbitrary and illegal. The learned counsel for the petitioner further submitted that his right to be appointed as Vazhipadu Clerk under the compassionate appointment scheme will prevail over the rights of respondents 4 to 6 to get regularisation of their services and their regularisation is against the law laid down by the Apex Court in _**Secretary, State of Karnataka and others v. Umadevi and others**_ . _[(2006) 4 SCC 1]_ 9. The learned counsel for the 3[rd] respondent, on the other hand, contended that there is no scheme of the Devaswom to grant compassionate appointment and the temples in Malabar area are granting compassionate **WP(C) No.27755 OF 2018(T)** **8** appointment to members of the deceased employees of the temple based on a Circular issued by the Commissioner of Malabar Devaswom Board. The counsel for the 3[rd] respondent reiterated that the petitioner is not entitled to get an appointment as Vazhipadu Clerk as the Hon'ble Apex Court has held in many a judgment that an applicant for compassionate appointment does not have a right to appointment to any particular post even if the aspirant satisfies the eligibility conditions for the post. In this regard, the learned counsel relied on the judgment of the Apex Court in _**State of M.P. and others v. Ramesh Kumar Sharma** [1994 Suppl (3) SCC 661]._ 10. The learned counsel for the 3[rd] respondent further pointed out that family of the deceased is not in penury and this is evident from the fact that the petitioner has not cared to accept the permanent appointment as Lamp Lighter offered to him. In such circumstances, this Court should not show any leniency to the petitioner, contended the counsel for the 3[rd] respondent. **WP(C) No.27755 OF 2018(T)** **9** 11. The learned counsel for respondents 4 to 6 submitted that they have been working in the temple for long period on temporary basis. Their services were availed by the temple authorities, who appointed them initially on temporary basis. It is after rendering a long period of service that the Devaswom proposed to regularise them. The Malabar Devaswom Board in the year 2010 took a decision to regularise the services of all temporary employees, who satisfied certain conditions. It is based on the decision of the Malabar Devaswom Board that the case of respondents 4 to 6 for regularisation was taken up. Though the case was taken up in 2010, the final order of regularisation came only in the year 2017. The learned counsel for respondents 4 to 6 pointed out that even before the Commissioner passed Ext.P7 order, respondents 4 to 6 were regularised as per Ext.P11 order dated 01.07.2017. The petitioner therefore, cannot claim any superior right over respondents 4 to 6. 12. The learned counsel for the 7[th] respondent **WP(C) No.27755 OF 2018(T)** **10** submitted that the 7[th] respondent has been working as Peon under the Devaswom for long years and he could not be promoted as Vazhipadu Clerk in view of lack of requisite educational qualification. It was under those circumstances that a proposal was made to convert one post of Vazhipadu Clerk into a post of Vazhipadu Assistant. This conversion of post had the seal of approval of the Commissioner of Devaswom. Accordingly, the 7[th] respondent was appointed as Vazhipadu Clerk. The petitioner cannot raise any legitimate grievance against the conversion of the post or the appointment of the 7[th] respondent as Vazhipadu Clerk. 13. I have considered the pleadings in the writ petition and the arguments of the learned counsel. It is discernible from the pleadings that an application for compassionate appointment was made by the petitioner on 23.09.2016. Though the Board of Trustees is not the appointing authority, it took a decision on 03.12.2016 to give employment to the petitioner as Vazhipadu Clerk on compassionate ground taking into account the educational **WP(C) No.27755 OF 2018(T)** **11** qualification of the petitioner. The Executive Officer, on the basis of Ext.P1 decision of the Board of Trustees, communicated the matter to the Commissioner of Devaswom. The Inspector of Devaswoms also found that the decision of the authorities to offer the petitioner employment as Vazhipadu Clerk, taking into account his educational qualification, is a _bona fide_ one and submitted Ext.P3 report accordingly. It was thereafter that the Commissioner passed Ext.P7 order on 09.03.2018. By Ext.P7, the Commissioner approved the appointment of the petitioner only as Lamp Lighter. However, at the same time, taking into account the decision of the Board of Trustees, report of the Inspector and other recommendations, the Commissioner ordered that whenever a vacancy of Vazhipadu Clerk arises or whenever a new vacancy of Vazhipadu Clerk is created in the Devaswom, the petitioner shall be given first preference in selection. 14. The contention of the petitioner is that the regularisation of the service of respondents 4 to 6 and **WP(C) No.27755 OF 2018(T)** **12** conversion of one post of Vazhipadu Clerk to accommodate the 7[th] respondent, were not taken _bona fide_ and those decisions were taken to deny the legitimate right of the petitioner. However, going by the sequence of events, it is evident that the proposal for regularisation of respondents 4 to 6 was pending from the year 2010 onwards and the delay on the part of the Malabar Devaswom Board to grant approval for such regularisation cannot adversely affect respondents 4 to 6. In the circumstances, I find that the petitioner cannot claim a superior right over respondents 4 to 6 or even against the 7[th] respondent, who was appointed as Vazhipadu Assistant after conversion of a post of Vazhipadu Clerk. 15. At the same time, the decision of the Board of Trustees, the report of the Inspector of Devaswoms and Ext.P7 decision of the Commissioner also cannot be ignored. Considering the educational qualifications of the petitioner and the situation of the petitioner's family at the time of demise of his father, the Board of Trustees had **WP(C) No.27755 OF 2018(T)** **13** decided to accommodate the petitioner in the post of Vazhipadu Clerk taking into account his educational qualification. The recommendation of the Board of Trustees was considered by the Commissioner and the Commissioner also ordered as per Ext.P7 that whenever a vacancy of Vazhipadu Clerk arises or a new vacancy is created, the petitioner shall be given first preference. The decision of the Commissioner as reflected in Ext.P7, in the background of the recommendations of the Board of Trustees of the temple creates a right on the petitioner which has to be honoured by respondents 1 to 3. In such circumstances, the writ petition is disposed of directing the 3[rd] respondent to appoint the petitioner as Vazhipadu Clerk in the very next arising vacancy. Sd/- **N. NAGARESH, JUDGE** aks/03.03.2020 **WP(C) No.27755 OF 2018(T)** **14** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY DECISION NO.2(3) DATED 3/12/2016 OF THE 2ND RESPONDENT TRUSTEE BOARD OF PISHARIKAVU TEMPLE.** **EXHIBIT P2 TRUE COPY OF RECOMMENDATION NO.PD 90/16 DATED 3/12/2016 OF THE 3RD RESPONDENT EXECUTIVE OFFICER OF PISHARIKAVU TEMPLE.** **EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS NO.132/2017 (MDB) DATED 6/6/2017 OF THE INSPECTOR, MALABAR DEVASWOM BOARD.** - **EXHIBIT P4 TRUE COPY OF THE APPROVED SCHEME O.A.NO.19 OF 1976 DATED 28/9/1977 OF THE 2ND RESPONDENT.** **EXHIBIT P5 TRYE COPY OF THE JUDGMENT DATED 26/3/2009 OF THIS HON'BLE COURT IN W.P.(C) NO.20092 OF 2008.** **EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 14/12/2017 OF THIS HON'BLE COURT IN W.P.(C) NO.40231 OF 2017.** - **EXHIBIT P7 TRUE COPY OF THE ORDER NO.J66846/16/MDB DATED 9//2018 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 13/4/2018 TO THE 1ST RESPONDENT SUBMITTED BY THE PETITIONER.** - **EXHIBIT P9 TUE COPY OF THE LAWYER NOTICE BY REGISTERED POST DATED 7/5/2018 ISSUED TO THE 1ST RESPONDENT.** **EXHIBIT P10 TRUE COPY OF THE ACKNOWLEDGMENT CARD DATED 7/5/2018.** **EXHIBIT P11 TRUE COPY OF ORDER NO.J6-** **WP(C) No.27755 OF 2018(T)** **15** **5403/2010/M.D.B(K.DIS) DATED 1-072017 ISSUED BY THE IST RESPONDENT.** ## **RESPONDENT'S EXHIBITS:** **EXHIBIT R4A TRUE COPY OF THE ORDER DATED 1.7.2017 PASSED BY THE 1ST RESPONDENT** **EXHIBIT R4 B TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT REGULARIZING THE SERVICES OF 4TH RESPONDENT DATED 10.7.2017** **EXHIBIT R4 C TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT IN FAVOUR OF 5TH RESPONDENT DATED 10.7.2017** **EXHIBIT R4 D TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT IN FAVOUR OF 6TH RESPONDENT DT 10.7.2017** **EXHIBIT R3(A) TRUE COPY OF THE DECISION OF THE TRUSTEE BOARD DATED 15-11-2017. EXHIBIT R3(B) TRUE COPY OF THE ORDER OF APPOINTMENT DATED 21-03-2018. EXHIBIT R3(C) TRUE COPY OF THE POSTAL COVER WHICH SHOWS THAT THE PETITIONER HAS RETURNED THE SAME UNCLAIMED. EXHIBIT R7(1) THE PHOTOCOPY OF THE PROCEEDINGS DATED 20.11.1992. EXHIBIT R7(2) THE PHOTOCOPY OF THE PROCEEDINGS DATED 07.05.2004. EXHIBIT R7(3) THE PHOTOCOPY OF THE PROCEEDINGS DATED 02.05.2015. EXHIBIT R7(4) THE PHOTO COPY OF THE ORDER DATED 11.05.2015. EXHIBIT R7(5) THE PHOTOCOPY OF THE ORDER DATED 10.07.2017.**