K. Venugopalan v. State of Kerala and Malabar Devaswom Board and Others

W.A.No.2087 of 2023 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **&** **THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR MONDAY, THE 8[TH] DAY OF JANUARY 2024 / 18TH POUSHA, 1945 WA NO. 2087 OF 2023** **AGAINST THE JUDGMENT WP(C)18509/2023 OF HIGH COURT OF KERALA** ## **APPELLANT:** K.VENUGOPALAN, AGED 59 YEARS S/O.GOPALAN NAIR, KANJEERI HOUSE , KURUMBATHOOR PO, THIRUNAVAYA, MALAPPURAM DISTRICT -, PIN - 676505 BY ADVS. K.MOHANAKANNAN D.S.THUSHARA ## **RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE DEVASWOM DEPARTMENT, THIRUVANANTHAPURAM-, PIN - 695001 2 MALABAR DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, HOUSEFED COMPLEX, ERANHIPALAM, KOZHIKODE -, PIN - 673006 W.A.No.2087 of 2023 2 - 3 THE COMMISSIONER MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERANHIPALAM, KOZHIKODE -, PIN - 673006 - 4 THE DEPUTY COMMISSIONER, MALABAR DEVASWOM BOARD, CIVIL STATION, KOZHIKODE -, PIN - 673001 - 5 THE ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD, , TIRUR DIVISION, TIRUR, MALAPPURAM -, PIN - 676101 - 6 THE ASSISTANT COMMISSIONER , MALABAR DEVASWOM BOARD, PALAKKAD DIVISION, KENATHUPARAMBU, KUNATHURMEDU, PALAKKAD-, PIN - 678013 - 7 HEREDITARY TRUSTEE. ( SOUGHT TO BE IMPLEADED ) CHENDANAKAVU TEMPLE, KURUMBATHOOR PO, THIRUNAVAYA, MALAPPURAM DISTRICT- ( SOUGHT TO BE IMPLEADED ), PIN - 676301 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15.12.2025, THE COURT ON 08.01.2024 DELIVERED THE FOLLOWING: W.A.No.2087 of 2023 3 ## **ANU SIVARAMAN, J. & C. PRATHEEP KUMAR, J.** = **= = = = = = = = = = = = = = = = = = W.A. No.2087 of 2023 = = = = = = = = = = = = = = = = = = = Dated this the 8th day of January, 2024** ## **JUDGMENT** ## **Anu Sivaraman J.** 1. The question which arises for consideration in this writ appeal is with regard to the age of retirement of the petitioner, who is working as an Executive Officer under the Malabar Devaswom Board. The essential question raised before us for consideration is whether the petitioner/appellant, who was appointed by the hereditary trustee as a temple employee and later promoted as Executive Officer on the strength of his service as a temple employee is entitled to contend that he continues to be a temple employee and therefore, would have to retire from service only on attaining the age of 65 years, which is the age of retirement applicable to temple employees. W.A.No.2087 of 2023 4 2. The learned single Judge held that the petitioner opted for appointment as Executive Officer from the category of temple employee and was thereafter governed by the Rules framed under Section 100(2)(p) and (x)(ii) of the Act. He cannot be treated as a temple employee and will have to retire at the age of 60 years. 3. The specific contention raised by the learned counsel for the appellant is that the Rule 4(2) of the Rules issued under Section 100(2)(y) of the Madras Hindu Religious and Charitable Endowments Act, 1951 (hereinafter referred as ‘the Act’) specifically provided that except in the case of hereditary officer or servant, no person may be appointed to or hold any office unless he is not less than 18 and not more than 65 years of age _(sic)_ . Relying on Rule 1 thereof, it is contended that the rules apply to all officers and servants of religious institutions and that the appellant, being a temple employee, is entitled to continue until he attains the age of 65 years in terms of the said rules. It is contended that the rules under Section 100(2) (p) and 100(2)(x)(ii) are applicable to paid Executive Officers W.A.No.2087 of 2023 5 appointed for religious institutions under the Act and that such paid Executive Officers would only be the Executive Officers appointed in terms of Sections 58 or 66 of the Act and that such rules would have no application to a temple employee, who has been appointed as an Executive Officer. 4. A counter affidavit was filed in the writ petition by the Malabar Devaswom Board specifically contending that the writ petition was bad for non-joinder of the trustee of the Chandanakkavu Temple, who was the petitioner’s initial appointing authority. It was specifically contended that the petitioner, who was a temple employee, had responded to a notification inviting applications for appointment as Executive Officer and he had applied and accepted appointment as Executive Officer. It is submitted that, on his being appointed as Executive Officer, he had lost his status as a temple employee and was thereafter governed by the provisions of the rules framed under Section 100(2)(p) and 100(2)(x)(ii) of the Act. W.A.No.2087 of 2023 6 5. It is submitted that even though the appellant was a temple employee and had been appointed by promotion as Executive Officer on his being appointed as such, he became an Executive Officer and all Executive Officers under the Malabar Devaswom Board are governed by the provisions of the rules under Section 100(2)(p) and (x)(ii) of the Act. It is further submitted that the trustee was not even made a party in the writ petition and that it was only in the writ appeal that the trustee was impleaded. It is further contended that the appellant had been paid encashment of earned leave as provided in Rule 13(4) of the rules framed under Section 100(2)(p) and (x)(ii) of the Act. It is submitted that disciplinary proceedings had also been taken against the appellant by the Commissioner as provided in Rule 15 of the said rules and that the petitioner had, at no point of time, any contention that he was a temple employee. It is submitted that a reading of Rule 100(2)(x)(ii) and 100(2)(y) and the rules themselves would make the situation abundantly clear. ## W.A.No.2087 of 2023 7 6. The 1[st] respondent has also placed a counter affidavit on record supporting the contentions raised by the Malabar Devaswom Board. 7. Reply affidavits have also been placed on record by the petitioner contending that other similarly situated employees had been permitted to continue even beyond the age of 60 years. 8. The 7[th] respondent, hereditary trustee contended that Executive Officer appointed by promotion from temple employees from a district and separate category and a promotion granted cannot change their status as temple employees. 9. The learned counsel for the petitioner relied on the judgment of this Court in **A.C.Bhanunni @Valluvanattukara v. Commissioner, Hindu Religious & Charitable Endowments (Admn) Dept.** [(2011)2 KLT 312]. In a batch of writ petitions filed challenging an order of the Commissioner of Malabar W.A.No.2087 of 2023 8 Devaswom Board designating Executive Officers/Managers etc. of temples as State Public Information Officers, a Division Bench of this Court held that the fact that appointment of the Executive Officer is made under Section 66 by the Commissioner does not enable the Government or the MDB to contend that the Executive Officers so appointed are employees of the MDB or are in charge of the affairs of the administrative unit or office of the MDB. Taking note of the statutory provisions, it was held that a temple or institution under the HR&CE Act cannot be brought within the definition of Public authority under Section 2(h) of the Right to Information Act and that their officers,, employees and Executive Officers appointed by the Commissioner of MDB under Section 66 of the HR&CE Act cannot be designated as Public Information Officers. ## 10.In **K.T.Raveendranath Trustee v. State of Kerala** [(2010) 4 KLT (SN) 81], it was held that appointment to the post of Executive Officer is to be made by any of the three methods provided under Rule 4(a)(1) and that the age limit of 35 would be applicable only to appointments by direct recruitment. Further, in **Narayanan Nair v. State of Kerala** [2001 (2) KLT 252], it W.A.No.2087 of 2023 9 was held that Managers of temples appointed under the Scheme would also be Executive Officers as provided under the Rules framed under Section 100(2)(x)(ii) of the Act and would therefore be subject to disciplinary control of the Board. - 11.The learned counsel appearing for the Malabar Devasom Board on the other hand relied on a judgment dated 17.02.2020 in W.P. (C).No.28470 of 2019 which was filed by the petitioner himself when he was placed under suspension with only the Malabar Devaswom Board and the Commissioner as parties. The writ petition was disposed of directing the appellant to file a representation before the Board which was directed to be considered. Reliance is also placed on a judgment of a Division Bench of this Court in W.A.No.35 of 2021, which relates to the power of the trustee to make appointments to non-hereditary posts arising in temples and religious institutions. 12.We have considered the contentions advanced. We have also heard the learned counsel at length. The statutory provisions which are relevant for consideration of the issue are as under:- W.A.No.2087 of 2023 10 - 13.Section 58 confers power on the Deputy Commissioner to frame scheme of administration for the institution. Under Section 58(2)(b), the scheme may contain provisions, _inter alia_ , for:- “appointing, or directing the appointment of, a paid executive officer, who shall be a person professing the Hindu religion, on such salary and allowances as may be fixed, to be paid out of the funds of the institution; and defining the powers and duties of such officer.” Section 66 1):- For every institution notified under this Chapter, the Commissioner shall as soon as may be appoint a salaried executive officer, who shall be a person professing the Hindu religion. Section 66(2)”- “the salary and allowances of the executive officer, as determined by the Commissioner, shall be paid from the funds of the religious institution. Section 67:- Term of office and duties of Executive Officer-(1) The executive officer shall hold office for such period as may be fixed by the Commissioner and he shall exercise such powers and perform such duties as may be assigned to him by the Commissioner. Provided that only such powers and duties as appertain to the W.A.No.2087 of 2023 11 administration of the endowments of the religious institution shall be assigned to the executive officer. (2) The Commissioner shall define the powers and duties which may be exercised and performed respectively by the executive officer and the trustee, if any, of the religious institution. (3) The executive officer shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (Central Act XLV of 1860) - (4) The Commissioner may, for good and sufficient cause, suspend, remove or dismiss the executive officer.” ## Section 100:- Power to make rules- (1) The State Government may make rules to carry out all or any of the purposes of the Act and not inconsistent therewith. - (2) In particular, and without prejudice to the generality of the foregoing power, they shall have power to make rules with reference to the following matters:- xxx xxx - (p) the security, if any, to be furnished by officers and servants employed for the purposes of this Act. xxx xxx “(x) the qualifications, method of recruitment, pay, grant of leave, leave allowance and travelling allowance, personal conduct and punishment of ## (i) [xxx] (ii) executive officers appointed for religious institutions under any provision of this Act or in pursuance of any scheme settled or deemed to be settled thereunder. W.A.No.2087 of 2023 12 (y) the qualifications to be possessed by the officers and servants for appointment to non-hereditary offices in religious institutions, the qualifications to be possessed by hereditary servants for succession to office and the conditions of service of all such officers and servants.” ## 14.Rule 1 of the Rules framed under Section 1002(p) and (x) reads as follows:- 1.In this part of the rules, the expression “Executive Officer” includes any paid officer appointed under a scheme settled or deemed to be settled under the Madras Hindu Religious and Charitable Endowments Act, 1951, (Madras Act XIX of 1951) by whatever designation called, provided that he is the highest executive authority in charge of the administration of the religious institutions. Provided further that this shall not include the Executive Officer, Thirumalai-Tiurpati Devasthanams. Rule 2 thereof provides that there shall be four grades of Executive Officers (five before the amendment on 04.02.2010) and provides for the scale of pay, educational qualification and age of each grade of Executive Officers. W.A.No.2087 of 2023 13 ## 15.Rule 4(a)(1) reads as follows:- “Appointment of an executive officer to any of the first five grades may be ## (i) by direct recruitment or - (ii) by promotion either from the next lower grade or from among the employees of the devasthanams who possess the requisite educational qualification and who have put in not less than 10 years of service or (iii) by obtaining the loan of services of any member of the Hindu Religions and Charitable Endowments (Administration) Department or of any other department of the Government, if necessary.” ## 16.Rule 4(a)(2) reads as follows:- One out of every three vacancies shall be filled up by direct recruitment while the other two shall be filled in by any of the other methods specified in sub-rule (a)(1). - 17.A reading of the rules would make it clear that the appointment of the Executive Officer is to be made by the Commissioner and that such Executive Officer would no longer be a temple employee as understood under Section 100(2)(y) of the Act. W.A.No.2087 of 2023 14 ## 18.The rules under Section 100(2)(y) specifically provides as follows:- “1.The rules in this Part shall apply to all officers and servants of religious institutions except the officers and servants constituting the establishment of the Tirumalai-Tirupathi Devasthanams to whom the rules framed under Section 100(2)(x)(i) apply and executive officers appointed for religious institutions under any provisions of the Act or in pursuance of the scheme settled or deemed to be settled thereunder, to whom the rules framed under Section 100(2)(x)(ii) apply.” 19.It is, therefore, clear that where a person is appointed as an Executive Officer either through direct recruitment or by promotion as provided in Rule 4(a)(1) of the Rules under Section 100(2)(x)(ii), he is thereafter governed by the provisions of the rules framed under Section 100(2)(x)(ii) and cannot continue to be a temple employee so as to be governed by the provisions of the rules framed under Section 100(2)(y). It is clear that the rules under Section 100(2)(y) would apply only to non-hereditary employees of the temple, who are appointed by the trustee and not to Executive Officers, who are appointed by the Commissioner, either by direct W.A.No.2087 of 2023 15 recruitment or by transfer from temple employees. The contention of the learned counsel for the appellant that the appellant, being an Executive Officer who was appointed by transfer would continue to be governed by the provisions of the rules framed under Section 100(2)(y) cannot be accepted in the light of the specific provisions of the Act and the Rules. We are, therefore, of the opinion that the findings of the learned single Judge do not require any interference. The writ appeal thus fails and the same is, accordingly, dismissed. sd/- **Anu Sivaraman, Judge** sd/- **C. Pratheep Kumar, Judge** sj13/12 W.A.No.2087 of 2023 16 ## **APPENDIX OF WA 2087/2023** PETITIONER ANNEXURES - Annexure A1 TRUE COPY OF THE REQUEST OF THE MANAGER TO THE ACCOUNTANT GENERAL DATED 23-41980 OF THE HR AND CE DEPARTMENT - Annexure A2 TRUE COPY OF THE REQUEST OF THE MANAGER TO THE COMMUNICATION DATED 6-5-1981 OF THE HR AND CE DEPARTMENT - Annexure A3 TRUE COPY OF THE WILL EXECUTED BY RANGA MENON DATED 29-10-1981 - Annexure A4 TRUE COPY OF THE RELEVANT PAGE OF SCHEDULE OF ESTABLISHMENT OF KADANNAMANNA BHAGAVATHI DEVASWOM - Annexure A5 TRUE COPY OF THE COMMUNICATION SENT BY THE ASSISTANT COMMISSIONER DATED 15-122015 - Annexure A6 TRUE COPY OF THE COMMUNICATION SENT BY THE ASSISTANT COMMISSIONER DATED 15-12016 - Annexure A7 TRUE COPY OF THE COMMUNICATION SENT BY THE COMMISSIONER TO THE ASSISTANT COMMISSIONER DATED 1-12-2023 True copy PS to Judge