Sanal.K.K. and Others v. The Commissioner, Malabar Devaswom Board and Others; Vazhayil Balan Nair and Others v. The Commissioner, Malabar Devaswom Board and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 31ST DAY OF MARCH 2021 / 10TH CHAITHRA, 1943** ## **WP(C).No.3072 OF 2021(H)** ## **PETITIONERS:** - **1 SANAL.K. K., AGED 34 YEARS S/O. ACHUKUTTY NAIR, KEEZHANA HOUSE, P.O.THIRUVANGOOR, KOZHIKODE DISTRICT.** - **2 AJEESH K., AGED 42 YEARS S/O. MADHAVAN NAIR, VAZHAYIL, KARTHIKA HOUSE, KOLLAM P.O., KOYILANDY, KOZHIKODE DISTRICT.** - **3 UNNIKRISHNAN K., AGED 56 YEARS S/O.BALAN NAIR, THAZHE ARATHIL, KOLLAM P. O., KOYILANDY, KOZHIKODE DISTRICT.** **SRI.V.N.RAMESAN NAMBISAN** ## **RESPONDENTS:** - **1 THE COMMISSIONER, MALABAR DEVASWOM BOARD, COMMISSIONER'S OFFICE, P.O.CIVIL STATION, CALICUT, KOZHIKODE DISTRICT, PIN - 673020.** - **2 THE CHAIRMAN, BOARD OF TRUSTEES, PISHARIKAVU DEVASWOM, KOLLAM P. O., KOYILANDY, KOZHIKODE DISTRICT, PIN - 673307.** - **3 THE EXECUTIVE OFFICER PISHARIKAVU DEVASWOM, KOLLAM P. O., KOYILANDY, KOZHIKODE DISTRICT, PIN - 673307.** - **4 THE KERALA DEVASWOM RECRUITMENT BOARD REPRESNETED BY THE SECRETARY, TRAVANCORE DEVASWOM BOARD BUILDING, M.G.ROAD, AYURVEDA COLLEGE JUNCTION, THIRUVANANTHAPURAM, PIN - 695 001.** **SRI.R.LAKSHMI NARAYAN, SC. SRI.R.K.MURALEEDHARAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31.03.2021, ALONG WITH WP(C).4626/2021(C), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.3072 OF 2021 & con.case 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 31ST DAY OF MARCH 2021 / 10TH CHAITHRA, 1943 WP(C).No.4626 OF 2021(C)** ## **PETITIONERS:** - **1 VAZHAYIL BALAN NAIR, AGED 81 YEARS S/O. LATE RAMUNNI NAIR, KOTTILAKATH HOUSE, SANTHINIKETHAM, KOLLAM P. O., KOZHIKODE DISTRICT.** - **2 ELAYIDATH VENUGOPAL, AGED 75 YEARS S/O. LATE T.K.KUNHIRAMAN NAIR, SANTHISADAN HOUSE, KOLLAM P.O., KOZHIKODE DISTRICT.** - **3 EACHARATTIL APPU NAIR, AGED 94 YEARS S/O. LATE KUNHANANDAN NAIR, AYILADATH HOUSE, KARUMALA P. O., KOZHIKODE DISTRICT.** - **4 EROTH E.R. UNNIKRISHNAN NAIR, AGED 84 YEARS S/O. LATE ELAYIDATH RAMAN NAIR, ANJALI HOUSE, KOLLAM P.O., KOZHIKODE DISTRICT. SRI.V.N.RAMESAN NAMBISAN** ## **RESPONDENTS:** - **1 THE COMMISSIONER, MALABAR DEVASWOM BOARD COMMISSIONER'S OFFICE, P. O. CIVIL STATION, CALICUT, KOZHIKODE DISTRICT, PIN - 673020.** - **2 THE CHAIRMAN, BOARD OF TRUSTEES, SRI PISHARIKAVU DEVASWOM, KOLLAM P. O., KOYILANDI, KOZHIKODE DISTRICT, PIN - 673305.** - **3 THE EXECUTIVE OFFICER, SRI PISHARIKAVU DEVASWOM, PISHARIKAVU DEVI TEMPLE, P.O.KOLLAM, KOYILANDI, KOZHIKODE DISTRICT, PIN - 673305.** ## **SRI.R.LAKSHMI NARAYAN RI.R.K.MURALEEDHARAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31.03.2021, ALONG WITH WP(C).3072/2021(H), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.3072 OF 2021 & con.case 3 ## **JUDGMENT** ## **Dated this the 31st day of March 2021** I am considering these two writ petitions together since the factual circumstances involved in them are interlayered and the grant of reliefs sought for in one will abide by the decision to be taken in the other. 2. W.P(C)No.4626 of 2021 has been filed by four of the Trustees of the “Sree Pisharikavu Devaswom”, alleging that the proceedings of the Malabar Devaswom Board, namely Ext.P3, constituting an interview Board for the purpose of appointment of 'Watchman, Vadhyam and Kathina' in their services, by including its nominee and that of the Commissioner of the Devaswom Board, is illegal and unlawful. 3. The Trustees assert that Ext.P3 order is untenable in law because, as per the provisions of the Madras Hindu Charitable and Religious Endowments Act (hereinafter referred to as 'the Act' for short), only they are competent to make appointments and that the Malabar Devaswom Board or its officers have no role to play in such process. They rely on WP(C).No.3072 OF 2021 & con.case 4 the judgment of the learned Division Bench of this Court in **Malabar Devaswom Hereditary Trustees Welfare Association v. State of Kerala [2016 KHC 4501] & K.Balan v. The Commissioner & Others [W.P(C)No** . **20092 of 2008]** in support of their contentions. 4. While so, certain Watchmen working on temporary basis in the “Pisharikavu Temple” have filed W.P(C)No.3072 of 2021, impugning the notification issued by the Executive Officer of the Temple, namely Ext.P1, calling for candidates for being considered for selection to the afore mentioned post. 5. They also rely on the judgments afore cited by the Trustees and assert that, after the promulgation of the Kerala Devaswom Recruitment Board Act, 2015, the Executive Officer of the temple has absolutely no role in constituting an Interview Board, particularly by including Government Nominees or a Malabar Devaswom Board Member or himself. They, therefore, pray that the 4th respondent - Kerala Devaswom Recruitment Board be directed to conduct selection to the non-hereditary posts in accordance with the afore mentioned Act. WP(C).No.3072 OF 2021 & con.case 5 6. The petitioners - Watchmen also have an alternative contention that since they have been working in the Temple for the last several years continuously, they are liable to be regularized in its services in preference to fresh hands and that this also be directed to be considered by the competent Authorities. 7. I have heard Sri.V.N.Ramesan Nambisan, learned counsel appearing for the petitioners in both these cases; Sri.R.K.Muraleedharan, learned counsel appearing for the Executive Officer of the Temple in both cases; Sri.R.Lakshmi Narayan, learned Standing Counsel appearing for the Malabar Devaswom Board and Sri.V.V.Nandagopal Nambiar, learned Standing Counsel appearing for the Kerala Devaswom Recruitment Board. 8. Sri.V.N.Ramesan Nambisan, learned counsel appearing for the petitioners in both these cases submitted that going by the provisions of the Act and the afore cited precedents, it is indubitable that the power to appoint persons to non-hereditary posts are vested exclusively with the Trustees of the temple and he edifices his argument on Exts.P1 in W.P(C)No.4626 of 2021, which is the Scheme of WP(C).No.3072 OF 2021 & con.case 6 Management of the Temple, approved by the Commissioner of the Devaswom Board as early as in the year 1977. 9. Sri.V.N.Ramesan Nambisan, submitted that, therefore, the interference of the Executive Officer or that of the Malabar Devaswom Board in such processes is prohibited and proscribed by the Act, which is affirmed in the precedents afore cited; and thus prayed that the impugned order, namely Ext.P3 in W.P(C)No.4626 of 2021, be set aside. He then added to his submissions by saying that, as far as the petitioners in W.P(C)No.3072 of 2021 is concerned, even though they have prayed that appointments be made only through the 4th respondent – Devaswom Recruitment Board, they do not intend to press the same, since they now seek that they be regularized in service, the power to consider which is vested with the Board of Trustees. He added that his clients in W.P(C)No.3072 of 2021 has already filed I.As to delete the Devaswom Recruitment Board from the party array as also to amend the said writ petition, deleting the prayer for direction to the said Board. 10. In response, the learned standing counsel for the Board – Sri.R.Lakshmi Narayan, submitted that a statement has been filed in W.P.(C) No.3072/2021, wherein, they have WP(C).No.3072 OF 2021 & con.case 7 averred that the impugned order, namely Ext.P3 in W.P.(C) No.4626/2021, has been issued only as per the request made before them by the Executive Officer of the Temple. He submitted that the records would show that, on 02.11.2018 the Board of Trustees of the Temple met and took a resolution to seek permission of the Devaswom Board to constitute a Selection Committee including its members as also the nominee of the Commissioner. He added that the Board of Trustees again met on 12.12.2018 for the same purpose, in which it was decided by it to include an expert in the interview Board for the purpose of selecting candidates for “Vadhyam”. 11. Sri.Lakshmi Narayan submitted that the afore resolutions of the Board of Trustees, which have been placed on record as Annexures R1(a) and R1(b) along with his statement filed in W.P.(C) No.3072/2021, would clearly show that the Trustees themselves decided to obtain the concurrence of the Devaswom Board and that on such basis, the Executive Officer forwarded the said resolutions as well as the request for concurrence, through Annexure R1(c). He submitted that it is solely based on such resolutions and request, that Ext.P3 in W.P.(C) No.4626/2021 order has been WP(C).No.3072 OF 2021 & con.case 8 issued by the Devaswom Board. 12. However, to a pointed question from this Court, Sri.R.Lakshmi Narayan submitted that but for the resolutions of the Board of Trustees and the request made by the Executive Officer, the Malabar Devaswom Board would not normally obtain jurisdiction to intervene in the process of selection of non-hereditary posts in the Temple and he admitted that this position has been well settled by this Court in **Malabar Devaswom Hereditary Trustees Welfare Association** (supra) and **K.Balan** (supra). He, nevertheless, submitted that since the Board of Trustees have already taken a decision and the Executive Officer has made the request for concurrence, the action of the Malabar Devaswom Board in having issued Ext.P3 is irreproachable and thus prayed that this writ petition be dismissed. 13. Sri.R.K.Muraleedharan, learned counsel appearing for the Executive Officer of the Temple in question, adopted most of the submissions of Sri.R.Lakshmi Narayan, however, adding that his client had forwarded the resolutions of the Trustees and the proposal for concurrence to the Devaswom Board, as he was authorised by the resolutions itself. He submitted that, therefore, the Trustees cannot now turn WP(C).No.3072 OF 2021 & con.case 9 around and resile from their earlier resolutions and contend that the interview board cannot be constituted with the nominee of the Malabar Devaswom Board or that of its Commissioner. He also, therefore, prayed that this writ petition be dismissed. 14. Before I move forward, I certainly notice that the petitioners in W.P.(C) No.3072/2021 have filed I.A.Nos.1/2021, 2/2021, 3/2021 and 4/2021, whereby, they have sought to produce certain additional documents, including an affidavit sworn to by certain Trustees; as also to amend the writ petition to delete the existing relief No.3 and to substitute it by a fresh prayer permitting the Board of Trustees to constitute an interview Board for selection to the different posts in the temple in question. Even though this Court has allowed I.A.Nos.1/2021, 2/2021, and 3/2021 and have accepted the documents on record, I do not think it necessary to allow I.A.No.4/2021, since even without such an amendment, this Court will be justified in disposing of these writ petitions, in the manner which I will presently indite. 15. When I consider the dialectical contentions of the parties, it is limpid that it is conceded by the Malabar Devaswom Board that, but for the resolutions of the Board of WP(C).No.3072 OF 2021 & con.case 10 Trustees and the request of the Executive Officer, they would not obtain any jurisdiction as per the Act to intervene in the process of either constituting the Selection Committee or for selection of persons to the non-hereditary posts in the Temple in question. Therefore, what is important in this case are the circumstances under which the resolutions were adopted by the Board of Trustees and the consequent request made to the Board for concurrence by the Executive officer. 16. As I have already said above, the resolutions of the Board of Trustees have been produced by the Malabar Devaswom Board, along with their counter pleadings in W.P. (C) No.3072/2021, as Exts.R1(a) and R1(b). When one examines these resolutions, it is clear that they were adopted on 02.11.2018 and 16.12.2018 respectively. There can be little doubt that through the said resolutions, the Board of Trustees have resolved that an interview Board be constituted to include the nominee of the Commissioner, a nominee of the Devaswom Board and certain Trustees. It has also been resolved therein to obtain the approval of the Malabar Devaswom Board for such purpose and it is consequent thereto, that the Executive Officer of the temple forwarded Annexure R1(c) letter to the Malabar Devaswom Board, WP(C).No.3072 OF 2021 & con.case 11 seeking such concurrence. Thereafter, the Devaswom Board appears to have adverted to these documents and to have then issued Ext.P3 order dated 01.04.2020 in W.P.(C) No.4626/2021, constituting an Interview Board in the manner requested by the Board of Trustees. 17. However, the documents that have been referred above would show that even though a decision was taken by the Board of Trustees to constitute an Interview Committee in the afore manner as early as in December, 2018, the Malabar Devaswom Board finalized the same only through Ext.P3 on 01.04.2020, which is nearly one and half years later. Of course, the said order also explains why there was a delay, because one of its members earlier nominated became not available thereafter and had to be substituted by another. That said, the fact remains that the Interview Committee has not been yet constituted and that no process for selection has to be now commenced. 18. In the meanwhile, since some of the Trustees have now come up before this Court saying that the earlier resolutions adopted by them were not in terms of the statutory scheme and were, in fact, contrary to the declarations of this Court in **Malabar Devaswom Hereditary** WP(C).No.3072 OF 2021 & con.case 12 ## **Trustees Welfare Association** (supra) and **K.Balan** (supra), I am certain that they have a right to resile from the resolutions, if it is legally permissible, as per the Scheme of Management applicable to the temple. The contention of the Executive Officer, that once a decision is taken by the Trustees, they cannot resile from the same, cannot appeal to me since a resolution adopted by them certainly can be reviewed by them themselves, provided they have the requisite quorum and garners requisite support in their meeting. 19. In the afore background, I asked Sri.R.Lakshmi Narayan, the learned standing counsel for the Malabar Devaswom Board, whether a competent Authority of the said Board is willing to supervise a meeting to be called of the Trustees of the Temple to consider whether Annexures R1(a) and R1(b) produced in W.P.(C) No.3072/2021, would require to be reviewed by them; to which the learned standing counsel submitted that the Assistant Commissioner, Calicut, is willing to do so and he added that, depending upon the decision to be taken in such meeting, the Board will issue appropriate fresh orders. 20. As I have said above, one reason that persuades this WP(C).No.3072 OF 2021 & con.case 13 Court to consider the course afore is because Annexures R1(a) and R1(b) produced by the Devaswom Board in W.P.(C) No.3072/2021, even though being resolutions adopted by the Trustees themselves, appear to be ex facia against the declarations of this Court in **Malabar Devaswom Hereditary** **Trustees Welfare Association** (supra) and **K.Balan** (supra). Of course, the Board of Trustees can certainly, in spite of the statutory Scheme, decide to include nominees of the Malabar Devaswom Board, but I cannot find any interdiction legally in the said Board deciding against it subsequently, particularly when the processes under the aforementioned resolutions have not yet culminated in the constitution of the Selection Committee or in selection of the candidates. 21. In the afore circumstances, I allow these writ petitions and set aside Ext.P3 in W.P.(C) No.4626/2021; with a direction to the Assistant Commissioner of Malabar Devaswom Board, Calicut, to convene and supervise a meeting of the Board of Trustees of the Temple, after issuing them appropriate notices, within a period of one month from the date of receipt of a copy of this judgment. 22. Once the Board of Trustees so meets, their resolutions shall be recorded and the Executive Officer of the WP(C).No.3072 OF 2021 & con.case 14 temple shall ensure that the same is minuted properly and forwarded to the Malabar Devaswom Board for appropriate action thereafter. 23. Needless to say, depending upon the decision to be taken by the Board of Trustees in terms of the afore directions, the Malabar Devaswom Board shall issue appropriate orders in terms of law without any avoidable delay. Since I have disposed of these writ petitions in the afore manner, the question as to whether the petitioners in W.P.(C) No.3072/2021 are eligible to be regularised or not are left to be decided by the competent Authorities in terms of law, for which purpose, all their contentions are left open. **Sd/- DEVAN RAMACHANDRAN** Mc/Stu **JUDGE** WP(C).No.3072 OF 2021 & con.case 15 ## **APPENDIX OF WP(C) 3072/2021** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE NOTIFICATION NO.P.D 78/18 DATED 01.12.2018 PUBLISHED BY THE 3RD RESPONDENT EXECUTIVE OFFICER, PISHARIKAVU DEVASWOM, KOZHIKODE.** **EXHIBIT P2 TRUE COPY OF THE INTERVIEW CARD DATED 18.01.2021 ISSUED BY THE 3RD RESPONDENT EXECUTIVE OFFICER OF THE TEMPLE. EXHIBIT P3 TRUE COPY OF THE INTERVIEW CARD DATED 18.01.2021 ISSUED BY THE 3RD RESPONDENT EXECUTIVE OFFICER OF THE TEMPLE. EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 30.06.2011 OF THE 1ST PETITIONER TO THE 3RD RESPONDENT. EXHIBIT P4(a) TRUE COPY OF THE DECISION DATED 5.9.2011 OF THE 2ND RESPONDENT TRUSTEE BOARD. EXHIBIT P4(b) TRUE COPY OF THE LETTER NO.PD/11 DATED 13.09.2011 OF THE 3RD RESPONDENT. EXHIBIT P4(c) TRUE COPY OF THE REPRESENTATION DATED 19.05.2014 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P5 TRUE COPY OF THE ORDER IN OA NO.19/76 DATED 28/9/1977 OF THE DEPUTY COMMISSIONER, H.R.& C.E.BOARD. EXHIBIT P6 TRUE COPY OF THE CIRCULAR NO.J6/413/2020/MDB (K.DIS) DATED 1/4/2020 ISSUED BY THE COMMISSIONER, MALABAR DEVASWOM BOARD EXHIBIT P7 TRUE COPY OF THE AFFIDAVIT DATED 6/2/2021 SWORN TO BY FOUR TRUSTEES OF THE 2ND RESPONDENT BOARD OF TRUSTEES EXHIBIT P8 TRUE COPY OF THE AFFIDAVIT DATED 11.2.2021 EXECUTED BY THE 2ND RESPONDENT, CHAIRMAN OF THE BOARD OF TRUSTEES. EXHIBIT P9 TRUE COPY OF THE LETTER DATED 07.02.2021 ISSUED BY THE 3RD RESPONDENT, EXECUTIVE OFFICER OF THE TEMPLE.** WP(C).No.3072 OF 2021 & con.case 16 **EXHIBIT P10 TRUE COPY OF THE LETTER DATED 26.02.2021 OF THE 3RD RESPONDENT, E.O. OF THE TEMLE IN RESPECT OF THE 1ST PETITIONER.** **EXHIBIT P11 TRUE COPY OF THE LETTER DATED 26.02.2021 OF THE 3RD RESPONDENT IN RESPECT OF THE 2ND PETITIONER** **EXHIBIT P12 TRUE COPY OF THE LETTER DATED 26.02.2021 OF THE 3RD RESPONDENT INRESPECT OF THE 3RD PETITIONER.** **RESPONDENTS' ANNEXURES:** **ANNEXURE R1(A) TRUE COPY OF THE MINUTES OF THE TRUSTEE BOARD DATED 02.11.2018** **ANNEXURE R1(B) TRUE COPY OF THE MINUTES OF THE TRUSTEE BOARD DATED 16.12.2018 ANNEXURE R1(C) TRUE COPY OF THE REPRESENTATION DATED 28.12.2018, SUBMITTED BY EXECUTIVE OFFICER.** WP(C).No.3072 OF 2021 & con.case 17 ## **APPENDIX OF WP(C) 4626/2021** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPROVED SCHEME (O.A.NO.19/76) DATED 28.09.1977.** **EXHIBIT P2 TRUE COPY OF THE NOTIFICATION NO.PD 78/18 DATED 01.12.2018 ISSUED BY THE 3RD RESPONDENT EXECUTIVE OFFICER OF THE TEMPLE.** - **EXHIBIT P3 TRUE COPY OF THE ORDER NO.J6/413/2020/MDB(K.DIS) DATED 01.04.2020 OF THE 1ST RESPONDENT, COMMISSIONER, MALABAR DEVASWOM BOARD.** ## **RESPONDENTS' ANNEXURES:** - **EXHIBIT R3(A) A TRUE COPY OF THE RELEVANT PAGE OF THE MINUTES OF THE MEETING ON 02.11.2018** **EXHIBIT R3(B) A TRUE COPY OF THE MINUTES OF THE TRUSTEE BOARD CONVENED ON 12.12.2018 EXHIBIT R3(C) A TRUE COPY OF THE ORDER DATED 26.06.2019.**