K. Balakrishnan Nair v. Malabar Devaswom Board and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **FRIDAY, THE 19TH DAY OF JULY 2013/28TH ASHADHA, 1935** **WP(C).No. 8197 of 2010 (Y) ---------------------------** **PETITIONER(S):** **--------------** **K.BALAKRISHNAN NAIR, S/O.LATE NARAYANAN NAIR, AGED 58 YEARS, VASHIPADU CLERK SREE VYRAMKODE BHAGAVATHI DEVASWOM, P.O. VYRAMKODE MALAPPURAM DIST.** **BY ADVS.SRI.BINOY VASUDEVAN SMT.P.G.BABITHA** **RESPONDENT(S):** - **--------------** **1. MALABAR DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, BOARD OFFICE, ERANHIPALAM KOZHIKODE.** **2. COMMISSIONR, MALABAR DEVASWOM BOARD, KOZHIKODE.** **3. DEPUTY COMMISSIONR, MALABAR DEVASWOM BOARD, KOZHIKODE.** **4. BOARD OF TRUSTEES, SREE VYRAMKODE BHAGAVATHI DEVASWOM, MALAPPURAM DISTRICT REPRESNTED BY ITS CHAIRMAN.** **5. EXECUTIVE OFFICER, SREE VYRAMKODE BHAGAVATHI DEVASWOM, VYRAMKODE, MALAPPURAM DIST.** **6. N.MURALEEDHRAN, MANAGER, SREE VYRAMKODE BHAGAVATHI DEVASWOM, VYRAMKODE P.O. MALAPPURAM DIST.** **7. K.PADMAN, STORE CLERK, SREE VYRAMKODE BHAGAVATHI DEVASWOM, VYRAMKODE, MALAPPURAM DIST.** **R1-R3 BY SRI.K.MOHANAKANNAN,SC,MALABAR DEVASWOM BOARD SRI.V.KRISHNA MENON, SC, MALABAR DEVASWOM BOARD R6 & 7 BY ADV. SRI.BRIJESH MOHAN R6 & 7 BY ADV. SMT.RESMI G. NAIR R4 & R5 BY ADV. SRI.MOHAN C.MENON R4 & R5 BY ADV. SRI.T.M.KOCHUNNI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 8197 of 2010 (Y) ---------------------------** ## **APPENDIX** ## **PETITIONER'(S) EXHIBITS:** |**EXT.P1**|**COPY OF THE PAY ROLL OF THE TEMPLE ISSUED BY THE HR &**| |---|---| ||**CE DEPARTMENT.**| |**EXT.P2**|**COPY OF THE PROCEEDINGS ISSUED BY THE 5TH RESPONDENT.**| |**EXT.P3**|**COPY OF WP(C) 94/2010 WITHOUT EXHIBITS.**| |**EXT.P4**|**COPY OF THE STATEMENT FILED BY COUNSEL APPEARING FOR**| ||**4TH AND 5TH RESPONDENTS.**| |**EXT.P5**|**COPY OF THE JUDGMENT DATED 01.03.2010 IN WPC 94/2010.**| |**EXT.P6**|**COPY OF THE REPRESENTATION DATED 28.01.2010 SUBMITTED**| ||**BEFORE THE 3RD RESPONDENT.**| |**EXT.P7**|**COPY OF THE SCHEDULE DATED 01.07.2013 APPROVED BY THE**| ||**ASSISTANT COMMISSIONER, HR & CE (ADMN) DEPARTMENT,**| ||**MALAPPURAM.**| |**EXT.P8**|**COPY OF THE SCHEDULE DATED 01.03.2009 APPROVED BY THE**| ||**ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD.**| |**RESPONDENT'(S) EXHIBITS:**|| |**EXT.R4A**|**COPY OF THE LETTER ISSUED BY THE DEVASWOM MANAGER TO THE**| ||**PETITIONER DATED 25.03.1978.**| |**EXT.R4B**|**COPY OF THE NOTICE DATED 23.12.1993 SERVED ON THE**| ||**PETITIONER.**| |**EXT.R4C**|**COPY OF THE NOTICE DATED 25.11.2000 SERVED BY THE**| ||**DEVASWOM ON THE PETITIONER.**| |**EXT.R4D**|**COPY OF THE MEMO DATED 6.10.2009 ISSUED TO THE**| ||**PETITIONER.**| |**EXT.R4E**|**COPY OF THE JUDGMENT DATED 25.2.2010 IN WP(C)**| ||**NO.11136/2009.**| |**EXT.R4F**|**COPY OF THE CAVEAT DATED 28.05.2010 PREFERRED BY**| ||**DEVASWOM BEFORE THE RESPONDENTS 1 & 2.**| |**EXT.R6(a)**|**COPY OF THE SCHEME OF ADMINISTRATION FRAMED IN OA**| ||**NO.11/81 WITH REGARD TO SREE VAIRAMCODE BHAGAVATHI**| ||**TEMPLE.**| |**EXT.R6(b)**|**COPY OF THE ORDER NO.A2/2468/78 DATED 21.7.1979 ISSUED**| ||**BY THE ASSISTANT COMMISSIONER, HR & NC DEPARTMENT.**| ||**//TRUE COPY//**| **PA TO JUDGE** **BKA** ## **A. M. SHAFFIQUE, J.** **-------------------------------------------------W.P.(C) No. 8197 of 2010 -------------------------------------------------Dated this the 19[th] day of July, 2013** ## **J U D G M E N T** The petitioner, who is presently working as a Vazhipadu Clerk in the temple managed by respondents 4 & 5, challenges Ext.P2 order issued by the Executive Officer, the 5[th] respondent, appointing respondents 6 and 7 to the posts of Manager and Kalavara Clerk respectively. According to the petitioner, the Executive Officer has no power to appoint any person and there is no post of Manager in the said temple. The petitioner has also submitted Ext.P6 representation to the 2[nd] respondent, the Commissioner, Malabar Devaswom Board, complaining about the orders passed by the Executive Officer behind the back of the Malabar Devaswom Board and also claiming better benefits. He has further requested for promoting him to any other post either as Supervisor or as Manager of the temple. W.P.(C) No. 8197 of 2010 ..2.. 2. The main ground raised by the petitioner is that the Executive Officer has no power to issue Ext.P2. According to him, only the 2[nd] respondent has the power to appoint persons in the temple and that there is no post of Manager as evident from Ext.P1. It is further contended that the respondents 6 and 7 had approached this Court without impleading the Malabar Devaswom Board and obtained a judgment for getting the benefit in terms of Ext.P2, which is void in the eye of law. 3. Statement is filed by respondents 1 to 3 inter alia contending that there is no existing post of Manager or Store Clerk in the temple, and therefore, the appointment of the 6[th] respondent as Manager cannot be sustained. It is also contended that the post of Manager and the Executive Officer is in the same cadre, and therefore, there cannot be two posts of the same cadre in the temple at a same time. It is also contended that there was no necessity for appointing a Manager in the temple and the action taken by the Board of Trustees is W.P.(C) No. 8197 of 2010 **==> picture [20 x 8] intentionally omitted <==** ultravires the statute. It is also contended that Ext.P5 judgment has been obtained behind the back of the Devaswom Board. It is further stated that Ext.P2 order is issued in violation of the provisions of the Act and Ext.P6 representation is pending consideration. 4. Counter affidavit is filed by respondents 4 & 5 inter alia contending that there was one post of Manager as early as in 1976-77 and the same was sanctioned by the competent authority in 1979. It is also pointed out that in many of the temples, there is a post of Executive Officer and also the post of Devaswom Manager. The respondents had detailed the temples, who have appointed Executive Officer as well as Devaswom Managers. It is also contended that the petitioner has not passed SSLC, which is the basic qualification for appointment to the post of clerk as per the Special Rules, and therefore, he is not entitled for any other promotion or appointment as claimed. It is also contended that the petitioner was involved in large scale misappropriation, W.P.(C) No. 8197 of 2010 **==> picture [20 x 8] intentionally omitted <==** theft etc., for which action had been taken by the Executive Officer. 5. Counter affidavit is filed by respondents 6 and 7 relying upon Exts.R6(a) and R6(b). Ext.R6(a) is a gazette of Malappuram issued on 25.11.1982, which extracts an order by which the scheme had been published with reference to the subject temple. Clause 7 of R6(a) is relied upon to show that the Executive Officer is vested with the powers for making appointments. Ext.R6(b) is the notification issued by the Devaswom Board with reference to the appointment of Manager in the temple, which is dated 21.07.1979. It states that in terms of Section 100(2)(7) of the HR & CE Act, a post the Manger is sanctioned to be appointed in the said temple on payment of Rs.150/- per month. Hence, it is contended that the post of Manager was available even as on 1979 and the said post is available even now in addition to the post of the Executive Officer. The respondents also contend that the petitioner has no right to challenge the W.P.(C) No. 8197 of 2010 **==> picture [20 x 8] intentionally omitted <==** appointment of respondents 6 and 7, especially, in view of the finding by this Court in Ext.P5 judgment. 6. Having regard to the aforesaid contentions, the question to be considered is whether Ext.P2 is liable to be set aside and whether a direction can be issued for consideration of Ext.P6. 7. The learned counsel for the petitioner would submit that fraud had been played on this Court while obtaining Ext.P5 judgment. Reliance is placed on the judgment of the Hon'ble Supreme Court in **Union of India & others v. Ramesh Gandhi** [(2012) 1 SCC 476] and specific reference is made to paragraphs 22 and 25, wherein the Supreme Court had occasion to observe that fraud vitiates all solemn acts. It is contended that Ext.P5 judgment has been obtained by fraud, and therefore, it is to be treated as void. Apparently, Ext.P5 was not with reference to the challenge to Ext.P2 or the appointment of respondents 6 & 7, and Ext.P2 is not based on any direction issued by Ext.P5 judgment. Therefore, Ext.P5 W.P.(C) No. 8197 of 2010 **==> picture [20 x 8] intentionally omitted <==** shall not preclude the petitioner to challenge Ext.P2 and the voidability of Ext.P5 judgment is not required to be considered in this writ petition. 8. The learned counsel for respondents 4 and 5 relied upon the Division Bench decision of this Court in **Ramachandran v. Food Corporation of India** [1989 (2) KLT 112] in order to contend that if a direction is issued by the Hon'ble High Court, similar directions should not be issued by another Court and the remedy available for the petitioner, who is not a party to the earlier procedure, is to approach the said Court by filing a review or by filing an appeal against the said order. The said judgment also will have no application to the facts of this case as I have already indicated that Ext.P2 is independent of the decision taken by this Court vide Ext.P5 judgment. 9. The next question to be considered is regarding the authority of the Executive Officer to pass Ext.P2 order. The learned counsel appearing for respondents 6 W.P.(C) No. 8197 of 2010 **==> picture [20 x 8] intentionally omitted <==** & 7 placed reliance on the Division Bench decision of this Court in **Parakkad Sree Bhagavathi Devaswom v. Malabar Devaswom Board** [2010 (4) KLT 568], wherein at paragraph 5, this Court had held that the authority to appoint a person is on the basis of the scheme and the Devaswom Board has only supervisory jurisdiction in respect of the same, which reads as under: “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 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 Bord 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.” 10. On a perusal of Ext.P6(a), it is clear that the Executive Officer is the appointing authority and that position cannot change despite the fact that the Board W.P.(C) No. 8197 of 2010 **==> picture [20 x 8] intentionally omitted <==** has certain supervisory powers. This cannot be disputed. Therefore, I am of the view that there is justification on the part of the Executive Officer to exercise jurisdiction to make the appointments in terms of Ext.P2. 11. It is contended that there is no post of Manager in the said temple. The Devaswom Board has taken a contention that the post of Manger is similar to the post of Executive Officer. Despite that, when Ext.P2 came into force, the Devaswom Board had not chosen to challenge the same. The respondents 4 and 5 had contended that such posts are available in several temples and Ext.R6(b) further indicates that the post of Manager is a sanctioned post. If there is any difficulty for the Devaswom Board to accept the Executive Officer and Manager in the temple, it is for the Devaswom Board to take appropriate action and it cannot be adjudicated in a writ petition filed by a person, who does not have a right to challenge the same. Accordingly, I do not intend to express any opinion on the same. But, I am only indicating that the petitioner has no W.P.(C) No. 8197 of 2010 ..9.. right to challenge Ext.P2 on that ground. 12. The only other question to be considered is whether Ext.P6 is required to be considered. On a perusal of Ext.P6, it contains various requirements of the petitioner including the challenge with respect to Ext.P2. Having regard to that fact, prima facie, I do not find any lack of jurisdiction on the part of the Executive Officer in making appointments in terms of Ext.P2. Hence, I do not think that there is any necessity to direct Ext.P6 representation to be considered by the Devaswom Board. However, if the petitioner has any claim for better benefits to be obtained by him in terms of his long service in the temple, it is open for him to approach the Devaswom Board Commissioner with appropriate representation in that regard and if such a representation is filed, directions can be issued to consider the said representation alone. In these circumstances, this writ petition is disposed of as follows: Petitioner is not entitled to any relief as prayed for. W.P.(C) No. 8197 of 2010 **==> picture [26 x 8] intentionally omitted <==** In the event of the petitioner filing a representation claiming better benefits on account of his long service in the temple to the Devaswom Board Commissioner, the same shall be considered and disposed of in accordance with the procedure prescribed. Sd/- **A. M. SHAFFIQUE, JUDGE** bka/-