Smitha K.S. v. Malabar Devaswom Board and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 11[TH] DAY OF JANUARY 2023 / 21ST POUSHA, 1944 WP(C) NO.26257 OF 2021** ## **- PETITIONER :** SMITHA K.S., AGED 42 YEARS D/O.SREEDHARAN PILLAI, KEERTHANAM, CHERUVAYUR P.O., VAZHAKAD, MALAPPURAM - 673 645. BY ADV MAHESH V RAMAKRISHNAN ## **- RESPONDENTS :** 1 THE MALABAR DEVASWOM BOARD REP.BY ITS COMMISSIONER, HOUSEFED COMPLEX, ERANHIPALAM, KOZHIKODE - 673 006. 2 THE COMMISSIONER MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERANHIPALAM, KOZHIKODE - 673 006. 3 THE DEPUTY COMMISSIONER MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERANHIPALAM, KOZHIKODE - 673 006. 4 THE ASSISTANT COMMISSIONER MALABAR DEVASWOM BOARD, KOZHIKODE DIVISION, D BLOCK (3RD FLOOR), CIVIL STATION, KOZHIKODE - 673 020. 5 SREE MARANGATTIRI MAHADEVA TEMPLE REP.BY ITS FIT PERSON, CHALIYAPPURAM, VETTATHUR, CHERUVAYUR P.O., MALAPPURAM - 673 645. 6 A.K.VIJAYARAGHAVAN FIT PERSON, SREE MARAKKATTEERI MAHADEVA TEMPLE, VETTATHOOR, P.O., CHERUVAYUR, EDAVANNAPPARA, MALAPPURAM - 673 645. 7 THE INTERVIEW BOARD FOR RECRUITMENT TO THE POST OF KAZHAKAM-CUM-CLERK AT SREE MARANGATEERI MAHADEVA TEMPLE - REP.BY ITS CHAIRMAN, MALABAR DEVASWOM BOARD, KOZHIKODE DIVISION, D BLOCK (3RD FLOOR), CIVIL STATION, KOZHIKODE - 673 020. (DELETED) WP(C) NO.26257 OF 2021 -: 2 :- R7 IS DELETED FROM PARTY ARRAY AS PER ORDER DATED 18.07.2022 IN IA NO.1/2022 IN WP(C)26257/2021. 8 ASWATHI K. W/O.RAGESH V., SHANTHI NILAYAM HOUSE, VETTATHUR, CHERUVAYUR P.O., VAZHAKKAD, MALAPPURAM - 673 645 BY ADVS. SRI.R.LAKSHMI NARAYAN, SC, MALABAR DEVASWOM BOARD N.KRISHNA PRASAD N.ANAND BIJITH S.KHAN K.R.SAJITH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.26257 OF 2021 -: 3 :- ## JUDGMENT ## Dated this the 11th day of January, 2023 This writ petition is filed seeking the following reliefs :- - “(i) To issue a Writ of Certiorari, or any other appropriate Writ, order or direction, to call for the entire records culminated in Exts.P2 notification and P4 and P7 orders and to quash the same. - (ii) To declare that the 6[th] respondent being a fit person appointed as an interim managerial arrangement at the temple, he has no power to make any appointment to any regular vacancy at the temple.” 2. Heard the learned counsel for the petitioner, the learned Standing Counsel appearing for the Malabar Devaswom Board and the learned counsel appearing for respondents 5 and 6 as well as the learned counsel appearing for the 8[th] respondent. 3. It is submitted by the learned counsel for the petitioner that the petitioner was an applicant for recruitment to the post of Kazhakam-cum-clerk at Sree Marakkatteeri Mahadeva Temple, Cheruvayur. It is contended by the learned counsel for the petitioner that Ext.P2 is a notification issued for appointment to the post, pursuant to which, the petitioner and others had applied. It is submitted that the petitioner was called for an interview to be held on 7.10.2021 which she attended. However, Ext.P4 proceedings WP(C) NO.26257 OF 2021 -: 4 :- was issued on 8.10.2021 by the 6[th] respondent appointing the 8[th] respondent to the post. The learned counsel for the petitioner submits that the entire proceedings were illegal in as much as the 6[th] respondent had been appointed pursuant to Ext.P1 order as the fit person of the temple and the fit person could not have issued Ext.P2 notification or conducted the selection leading to Ext.P4 appointment order. It is further submitted that Ext.P7 order of the Assistant Commissioner dated 6.9.2021 constituting an interview committee is vitiated since it is contrary to the directions issued in Ext.P8 circular. It is further contended by the learned counsel for the petitioner that since the fit person had been appointed only in the specific circumstances as discernible by Ext.P1, a fit person could have carried out only the day-to-day administration and that appointments could not have been made by him. 4. The learned counsel would place reliance on the provisions of Sections 45, 47, 48 and 58 of the Madras Hindu Religious and Charitable Endowments Act, 1951 and contend that the entire proceedings which were carried out by the fit person being unsustainable the appointment is also liable to be set aside. 5. A statement has been placed on record by respondents 1 and 2, wherein, it is stated that by Ext.P1 order, the 6[th] respondent WP(C) NO.26257 OF 2021 -: 5 :- had been appointed as fit person as a managerial arrangement and had all the powers of a Trustee Board in terms of the provisions of the Act. It is stated that there is no challenge against the appointment of the fit person and that the appointment is not limited in any manner. It is further contended that the contentions raised with regard to Ext.P7 are completely unsustainable since the interview committee was constituted strictly in accordance with Ext.P8. It is further contended that the petitioner, having participated in the entire selection process cannot challenge the very proceedings under which she had participated, after finding that she has not selected to the post. 6. A detailed counter affidavit has been placed on record by the 8[th] respondent as well. It is stated that Section 48(1) of the Madras Hindu Religious and Charitable Endowments Act, 1951 empowers the Trustee to make appointments in the temple. It is submitted that where the Trustee is not a hereditary trustee, the Trustee Board appointed in accordance with a scheme framed under Section 58 shall have the power to make appointments. It is submitted that in the instant case, it is clear from Ext.P1 that the fit person had been appointed pending the appointment of a Trustee Board and that therefore, the fit person had all the powers of the WP(C) NO.26257 OF 2021 -: 6 :- Board of Trustees. It is further contended that the petitioner who was an applicant pursuant to Ext.P2 notification issued by the fit person and had participated in the entire selection process including in the interview conducted on 7.10.2021 cannot thereafter turn around and contend that the notification and the procedure are illegal or erroneous after finding that he was not successful in the selection. 7. The learned counsel for the 8[th] respondent would also place reliance on the decisions of the Apex Court in Mohd. Mustafa v. Union of India and others [(2022) 1 SCC 294] to contend that judicial review of appointments made is possible only where there are compelling reasons and a decision of this Court in Sivasankaran K. v. Malabar Devaswom Board, Kozhikode and others [2019 (4) KHC 887]. 8. Having considered the contentions advanced, I notice that Ext.P1 order appointing the 6[th] respondent as fit person is one rendered on 1.9.2004. Though the order refers to a report of the Assistant Commissioner and the Area Committee, the order by itself is not limited since there is no specific purpose stated for which the fit person has been appointed. On the contrary, pending the appointment of a Board of Trustees, it appears that the fit person WP(C) NO.26257 OF 2021 -: 7 :- has been appointed to carry out all or any of the functions of such Board of Trustees. The fit person issued Ext.P2 notification in his capacity as such as is evident from Ext.P2 itself. The petitioner applied pursuant to Ext.P2. She was also called for an interview which she attended. It is only when the 8[th] respondent was appointed pursuant to the selection process that this writ petition has been filed challenging the entire proceedings including Exts.P2, P4 and P7. 9. Having considered the contentions advanced on both sides, I notice that there is power in the Board to appoint a fit person in certain circumstances. Section 45 provides for appointment of a fit person pending disposal of charges framed against any hereditary or non-hereditary trustee or trustees of a temple. Section 47 provides for appointment of a fit person when a permanent or temporary vacancy occurs in the office of hereditary trustee and there is a dispute in respect of the right of succession or when such vacancy cannot be filled up immediately or when a hereditary trustee is by reason of unsoundness of mind or other mental or physical defect unfit for discharging the functions of the trustee. Section 47(3) provides for the appointment of a fit person to discharge the functions of the trustee of the institution until the WP(C) NO.26257 OF 2021 -: 8 :- disability of the hereditary trustee ceases or another hereditary trustee succeeds to the office or for such shorter term. Section 58(5) provides for appointment of a fit person to discharge all or any of the functions of the trustee pending the framing of a scheme for a temple or a specific endowment. The said provision also speaks about defining the powers and duties of a fit person. Further, Section 48 provides that vacancies whether permanent or temporary amongst office holders or servants of a religious institution shall be filled up by the trustee in cases where the office or service is not hereditary. 10. In the instant case, Ext.P1 is the order by which the fit person has been appointed. A reading of the order would show that there are no specific conditions provided in the said order and that the only condition provided is that the fit person can be removed at any time. It is, therefore, clear that the appointment of the fit person is not a conditional appointment for a limited purpose. In any view of the matter, the said order of appointment of the fit person is not under challenge. 11. The petitioner admittedly is an applicant to the post of Kazhakam-cum-clerk pursuant to Ext.P2 notification issued by the fit person. Ext.P2 itself specifically states that it is a notification WP(C) NO.26257 OF 2021 -: 9 :- issued by the fit person. There was no challenge raised at the relevant time. It is only after the entire procedure is complete and the 8[th] respondent was appointed that the petitioner has raised a challenge against Ext.P2 notification. I am of the opinion that the petitioner, who is an applicant for the post, who has undergone the selection procedure without any challenge cannot, at this stage, be heard to contend that the entire proceedings were illegal and vitiated. In the above view of the matter, I am of the opinion that the prayers as sought for cannot be granted. The writ petition fails and the same is, accordingly, dismissed. Sd/ANU SIVARAMAN JUDGE Jvt/.25.1.2023 WP(C) NO.26257 OF 2021 ## -: 10 :- ## **APPENDIX OF WP(C) 26257/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER DATED 1.9.2004 ISSUED BY THE 3RD RESPONDENT - Exhibit P2 TRUE COPY OF THE NOTIFICATION DATED NIL ISSUED BY THE 6TH RESPONDENT - Exhibit P3 TRUE COPY OF THE LETTER DATED NIL ISSUED BY THE 6TH RESPONDENT TO THE PETITIONER - Exhibit P4 TRUE COPY OF THE ORDER DATED 8.10.2021 ISSUED BY THE 6TH RESPONDENT - Exhibit P5 TRUE COPY OF THE RESOLUTION DATED 7.10.2021 OF THE INTERVIEW BOARD (7TH RESPONDENT) - Exhibit P6 TRUE COPY OF THE LETTER DATED 20.10.2021 ISSUED BY THE 6TH RESPONDENT TO THE 4TH RESPONDENT - Exhibit P7 TRUE COPY OF THE ORDER DATED 6.9.2021 ISSUED BY THE 2ND RESPONDENT - Exhibit P8 TRUE COPY OF THE CIRCULAR NO.J8-7347/2010/MDB DATED 15.10.2010 ISSUED BY THE COMMISSIONER, MALABAR DEVASWOM BOARD - Exhibit P9 TRUE COPY OF THE INTERVIEW REPORT DATED - 7.10.2021 OF THE 7TH RESPONDENT INTERVIEW BOARD - Exhibit P10 TRUE COPY OF THE EXPERIENCE CERTIFICATE DATED 5.1.2021 ISSUED BY THE SECRETARY, MURUKANADU SREE SUBRAHMANYA MAHAKSHETHRA SAMRAKSHANA SAMITHI - Exhibit P11 TRUE COPY OF THE EXPERIENCE CERTIFICATE DATED 12.12.2014 ISSUED BY THE DEAN OF KERALA AGRICULTURAL UNIVERSITY, TAVANUR - Exhibit P12 TRUE COPY OF THE INTERVIEW REPORT OF WP(C) NO.26257 OF 2021 -: 11 :- MARAKKATIRI DEVASWOM. Exhibit P13 TRUE COPY OF THE INTERVIEW REPORT SIGNED BY THE FIT PERSON AND DATED NIL. RESPONDENT EXHIBITS Exhibit-R(8)(a) True copy of the notification published in the Mathrubhumi daily on 09.03.2014 Exhibit-R(8)(b) True copy of the order dated 08.03.2017 issued by Respondent No. 2 - Exhibit-R(8)(c) True copy of the undated application submitted by Respondent No. 8 - Exhibit-R(8)(d) True copy of the communication dated 25.09.2021 issued by Respondent No. 6 to Respondent No. 8 Exhibit-R(8)(e) True copy of the interview report by Respondent No. 6- fit person - Exhibit-R(8)(f) True copy of the request dated 18.10.2021 issued by Respondent No. 8 to Respondent No. 6 - Exhibit-R(8)(g) True copy of the minutes dated 28.10.2021 of the Kozhikode Area Division Committee meeting - Exhibit-R(8)(h) True copy of the communication dated 20.10.2021 issued by Respondent No. 6 to Respondent No. 4 Exhibit-R(8)(i) True copy of the communication dated 20.10.2021 issued by Inspector, Malabar Devaswom Board to Respondent No. 4