N. Raja Raja Varma vs Travancore Devaswom Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 28TH DAY OF JANUARY 2020 / 8TH MAGHA, 1941** ## **WP(C).No.31134 OF 2019(N)** ## **PETITIONER/S:** **N. RAJA RAJA VARMA AGED 53 YEARS S/O.S.NARAYANAN NAMBOODIRI, SANTHI AT KANJOOR TEMPLE WITHIN NANGAYARAKULANGARA SUB GROUP, KOTTARAM,KARTHIKAPPILLY,KARTHIKAPPILLY.P.O, ALAPPUZHA DISTRICT,PIN-690516.** **BY ADVS. SRI.P.GOPAL SRI.B.MURALEEDHARAN** ## **RESPONDENT/S:** - **1 TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, OFFICE OF THE TRAVANCORE DEVASWOM BOARD,NANTHANCODE,THIRUVANANTHAPURAM-695033.** - **2 THE DEVASWOM COMMISSIONER, OFFICE OF THE TRAVANCORE DEVASWOM BOARD, NATHANCODE,THIRUVANANTHAPURAM-695033.** - **3 THE DEPUTY DEVASWOM COMMISSIONER, OFFICE OF THE DEPUTY DEVASWOM COMMISSIONER,TRAVANCORE DEVASWOM BOARD, HARIPPAD,ALAPPUZHA-690514.** - **4 THE ASSISTANT COMMISSIONER, OFFICE OF THE ASSISTANT COMMISSIONER, TRAVANCORE DEVASWOM BOARD,HARIPPAD, ALAPPUZHA-690514.** - **5 K.E.VASUDEVAN NAMBOODIRI, SANTHI AT NAGARI DEVASWOM,RESIDING AT VETHIRA MANA ILLLOM,KARTHIKAPPALLY.P.O, VALIYAKULANGARA,ALAPPUZHA DISTRICT, PIN-690516.** - **THE EXISTING RANK OF '4TH RESPONDENT' IS CHANGED AS '5TH' AND THE EXISTING RANK OF '5TH' RESPONDENT IS** **CHANGED AS '4TH' AS PER ORDER DATED 13-01-2020 IN I.A. 02/2020** **BY SRI.C.K.PAVITHRAN, SC, TDB BY ADV. SRI.R.RAJASEKHARAN PILLAI** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.31134/2019 ## **JUDGMENT** The petitioner, who is a Santhi at Kanjoor Temple challenges Ext.P5 order by which the 1[st] respondent Board directed that he should be transferred out from Kanjoor Devaswom and in his place the 4[th] respondent shall be posted. 2 **.** The case of the petitioner is that once the Board had passed an order-Ext.P4, thereafter it does not have any authority to review the same either suo motu or at the instance of any party. Learned counsel for the petitioner relies on the judgment of the apex court in _**Gyanmandir**_ ## _**Mahavidhyalaya Samity vs. Udailal Jaroli and another :**_ _**(2005) 10 SCC 603**_ in support of his contention. 3. The petitioner as well as the 4[th] respondent are working under the 1[st] respondent Board as Santhi. The petitioner entered service as part Time Santhi on 01.09.1986 and was promoted as a Full Time Santhi on 19.11.1986. The 4[th] respondent entered service in the year 2002 as Part Time Santhi and was promoted as Full Time Santhi on 27.08.2005. At the time of general transfer for the year 2019, the petitioner had submitted three Temples W.P.(C) No.31134/2019 **==> picture [19 x 8] intentionally omitted <==** of his choice for posting and the 1[st] choice was Kanjoor Temple and 2[nd] and 3[rd] were Valiyakulamgara Temple and Panayanar Temple. The petitioner submits that on the basis of the recommendations made by the Deputy Devaswom Commissioner, who does not have any role in the matter of transfer, the Assistant Devaswom Commissioner did not grant him transfer to Kanjoor Temple and he was posted at Panayanar Temple, which was his 3[rd] choice. Aggrieved by the the order of the Assistant Devaswom Commissioner, petitioner submitted appeal before the Devaswom Commissioner. That appeal was dismissed. The petitioner thereupon approached the 1[st] respondent Board and the Board issued orders directing the 2[nd] respondent to post the petitioner at Kanjoor Temple. The 4[th] respondent challenged the said order filing WP(C) No.19028/2019 and the said Writ Petition was disposed of as per Ext.P3 judgment directing the Board to consider and pass orders on the Review Petition filed by the 4[th] respondent after hearing the petitioner as well as the 4[th] respondent. Thereafter Board issued Ext.P4 order on 24.09.2019 directing that petitioner be posted at Kanjoor. Board found that the petitioner would not be able to submit a further application for transfer since he has got only less than three years for retirement W.P.(C) No.31134/2019 **==> picture [19 x 8] intentionally omitted <==** and therefore it was only appropriate to grant him transfer to Kanjoor Devaswom. It is stated that on the basis of Ext.P4 order, the petitioner joined Kanjoor Devaswom on 28.09.2019. While continuing there, he came to know about Ext.P5 order, by which the Board reviewed Ext.P4 order, on the basis of a petition submitted by the 4[th] respondent. In Ext.P5 it is stated that the petitioner was a person who was subjected to disciplinary action while he was working in Thekkankavukulangara Temple. At the same time it was found that there was no occasion to proceed against the 4[th] respondent; on account of the services of the 4[th] respondent the Devaswom was able to generate more income. 4. The 4[th] respondent has filed a counter affidavit producing Ext.R5(b) order by which the petitioner was placed under suspension on 02.04.2012 on various allegations including that he refused to open the Sree Kovil in the morning. Disciplinary proceedings initiated against him was finalised by awarding a punishment of barring of one increment with cumulative effect. According to the 5[th] respondent, the petitioner is disqualified for a posting in a major Devaswom in the light of clause 4 of the Transfer Norms-Ext.P1. The 4[th] respondent claims that out of the 17 years of service, including 15 years as Full Time W.P.(C) No.31134/2019 **==> picture [19 x 8] intentionally omitted <==** Santhi, there were no complaints against the 4[th] respondent. He also relied on Rule 32 of KS&SSR and stated that the petitioner is bound to work any where in obedience to the orders passed by the Board. It is also stated that the petitioner has got three years more and even assuming that he is to retire on attaining the age of 56, there is one more year for him to get a posting of his choice near his residence. 5. The 1[st] respondent has filed a counter affidavit stating that the petitioner as well as the 5[th] respondent had submitted applications for transfer with their first choice as Kanjoor Devaswom. It is stated that as per clause 4 of Ext.P1 norms the total service, personality, involvement in disciplinary proceedings etc shall be looked into before giving transfer to important Temples. Kanjoor Devaswom is one of the important Temples coming under the Board. The Assistant Devaswom Commissioner reported that the petitioner was found guilty in a Departmental proceedings and punishment of barring of one increment with cumulative effect was awarded to him in 2014. It is stated that the allegation against the petitioner that he failed to open the Sreekovil of Thekkankavukulangara Devaswom and to perform poojas was very serious in nature W.P.(C) No.31134/2019 **==> picture [19 x 8] intentionally omitted <==** and therefore he was not entitled for a posting in a major Devaswom like Kanjoor. It is stated that the 4[th] respondent had approached the President of the Board with a representation against Ext.P4 and that the Board considered the Review Petition after obtaining report from the Deputy Devaswom Commissioner and Devaswom Commissioner. Seeing that the petitioner had faced disciplinary proceedings the Board revised the order and passed Ext.P5 order. According to the 1[st] respondent Ext.P5 order is passed in the best interest of the Devaswom invoking its power to review. It is stated that when the transfer was found in violation of clause 4 of Ext.P1 norms there was nothing wrong in revising Ext.P4 order. 6. Petitioner has filed reply affidavit denying the allegations in the counter affidavit of respondents 1 and 4. He has explained the circumstances under which punishment was awarded. However his main contention is that the Board does not have any authority to review Ext.P4 order and hence Ext.P5 is unsustainable. 7. Heard Sri.P.Gopal, learned counsel appearing for the petitioner, Sri.C.K.Pavithran, learned Standing Counsel for the official respondents and Sri.Rajasekharan Pillai the learned counsel appearing for the 4[th] respondent. W.P.(C) No.31134/2019 **==> picture [19 x 8] intentionally omitted <==** 8. Ext.P4 is admittedly passed by the Board on a direction from this Court in Ext.P3 judgment to consider the Review Petition submitted by the petitioner. In Ext.P4 Board took the view that more than 5 years were over after the punishment was awarded to petitioner and that it would not be possible for him to submit another application for transfer since he was having only less than three more years for retirement. 9. Going by clause 4 of Ext.P1 norms a person who is subjected to disciplinary proceedings is not eligible for appointment in a major Temple. Clause 4 does not limit the restriction for the period when a person is undergoing punishment alone. It is not clear whether a lifetime bar is envisaged once disciplinary proceedings are initiated. Though the petitioner stated the circumstances under which he was unable to attend to his duties, the fact remains that he has suffered the punishment. However the Board has reviewed Ext.P4 order on an application submitted by the 4[th] respondent, without any notice or hearing the petitioner. The petitioner has got a contention that Ext.P5 order was passed on the day previous to the date on which the previous President demitted office. 10. At any rate the main contention raised by the W.P.(C) No.31134/2019 :9: learned counsel for the petitioner is that once the Board exercised its power as against the order passed by the Commissioner on the appeal in respect of the transfer, the Board ceased to have power to entertain any further petition. The learned counsel for the petitioner points out that section 35 of the Act empowers the Board to make rules to carry out all or any of the purpose of the Act not inconsistent therewith which includes matters relating to method of recruitment, qualification, grant of salaries and allowances, discipline and conduct of officers and servants of the Board and the Devaswom Department and generally the conditions of service in clause (e) thereof. It is pointed out that the norms for transfer have been issued by the Board on direction of the Division Bench of this Court and were approved by this court and that action was taken in terms of these norms; orders of transfer do not provide for a review of the order. It was argued that unless a power is conferred it cannot review its orders in the light of the judgment in _**Gyanmandir Mahavidhyalaya Samity vs. Udailal Jaroli and another : (2005) 10 SCC 603 .**_ 11. At the same time the learned Standing Counsel for the Devaswom Board argued that under the provisions contained in section 15(2) of Travancore Cochin Hindu W.P.(C) No.31134/2019 **==> picture [25 x 8] intentionally omitted <==** Religious Institutions Act, 1950 the Board shall exercise all powers of direction, control and supervision over the incorporated and unincorporated Devaswoms and Hindu Religious Endowments under their jurisdiction. Moreover under Section 16 it is provided that the Board shall, subject to the provisions of Part I of this Act, exercise, supervision and control over the acts and proceedings of all officers and servants of the Board and of the Devaswom Department. Therefore it was argued that when the transfer of the petitioner to a major temple was found to be in violation of clause 4 of the norms-Ext.P1, it had every authority to correct it. 12. In this context it is necessary to examine the applicability of the judgment in _**Gyanmandir Mahavidhyalaya Samity's**_ **case (supra)** relied on by Sri.Gopal. In that case respondent therein had filed a fresh representation before the appellate authority, which entertained the same and passed orders. The apex court found that once the order passed by the State Government under its appellate jurisdiction had attained finality, in the absence of any order by the Court having jurisdiction setting aside the order, another appeal at the instance of the respondent was not maintainable before the State Government. It was found W.P.(C) No.31134/2019 **==> picture [25 x 8] intentionally omitted <==** that the jurisdiction of the State Government having been derived from the statute, the State is obliged to confine its jurisdiction within the four corners thereof and in case it did not have any jurisdiction to entertain a fresh appeal when the order passed by it had attained finality it would be coram non judice. It was held that the court had not given any opportunity to the respondent therein to file a fresh application or appeal before the State Government and therefore the State Government did not have any authority to entertain a fresh application to decide the same on merits. It is seen from the judgment that the State Government had already exercised its statutory power in its capacity as appellate authority and thereafter entertained another application. Ext.P1 norms provides for an appeal before the Devaswom Commissioner as against transfers ordered by the Assistant Commissioner and further appeal before the Board against the order passed by the Commissioner. Ext.P1 norms do not provide for a further review before the Board. As pointed out by the learned Counsel for the petitioner, the Board had already considered the matter once after hearing both sides, on directions from this court. Though Ext.P1 are norms for transfer, it provides for appeals against the W.P.(C) No.31134/2019 **==> picture [25 x 8] intentionally omitted <==** orders passed by the respective authorities. Though supervisory powers are conferred on the Board under Section 15(2) and 16 it does not provide for review of its own orders and at any rate without hearing the affected party. Therefore without going into any other contentions, I am of the view that the Board did not have authority to review its order Ext.P4 in this manner, on a further petition by 4[th] respondent at a stage when it was not set aside by a competent court. Ext.P5 is therefore set aside. The Writ Petition is allowed accordingly. ## **Sd/-** ## **P.V.ASHA** rkc **JUDGE** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE CIRCULAR DATED 14.2.2005 ISSUED BY THE DEVASWOM COMMISSIONER IN RESPECT TO THE GUIDELINES FOR TRANSFER OF THE EMPLOYEES OF THE DEVASWOM EXHIBIT P2 TRUE COPY OF THE LETTER OF THE OFFICE BEARERS OF TRAVANCORE DEVASWOM EMPLOYEES FRONT,HARIPAD GROUP COMMITTEE DATED 29.5.2019 EXHIBIT P3 TRUE COPY OF THE JUDGMENT OF THE LEARNED SINGLE JUDGE OF THIS HON'BLE COURT DATED 13.8.2019 IN W.P(c)NO.19028/2019 EXHIBIT P4 TRUE COPY OF THE ORDER OF THE BOARD,ROC NO.7673/19/MIS.1 DATED 24.9.2019 EXHIBIT P5 TRUE COPY OF THE ORDER OF THE BOARD ROC NO.7673/19/MIS.1 DATED 13/11/2019. RESPONDENT'S/S EXHIBITS: EXHIBIT R5(A) TRUE COPY OF THE APPLICATION SUBMITTED BY THE APPLICANT EXHIBIT R5(B) TRUE COPY OF THE SUSPENSION ORDER ISSUED BY THE 2ND RESPONDENT**