Sreehari Narayanaru v. State of Kerala, Travancore Devaswom Board, Cochin Devaswom Board and Kerala Devaswom Recruitment Board

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR. JUSTICE G. GIRISH ``` ``` THURSDAY, THE 25[TH] DAY OF JANUARY 2024 / 5TH MAGHA, 1945 DBP NO. 113OF 2023 ``` ``` COMPLAINT AGAINST ORDER NO.97/R/20-23/KDRB DATED 11.10.2023 OF THE KERALA DEVASWOM RECRUITMENT BOARD ``` ## **`PETITIONER:`** ``` *SREEHARI NARAYANARU, KOLLUR ATHIYARA MADOM, KANNANMOOLA, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695 011. ``` ``` *(SUO MOTU – CORRECTED - VIDE ORDER DATED 09.11.2023 IN DBP NO.113 of 2023) ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE (DEVASWOM) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.`** - **`2 TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, NANTHANCODE, KAWDIAR POST, THIRUVANANTHAPURAM - 695033.`** - **`3 COCHIN DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, OFFICE OF THE COCHIN DEVASWOM BOARD, ROUND NORTH, THRISSUR - 680001.`** - **`4 KERALA DEVASWOM RECRUITMENT BOARD TRAVANCORE DEVASWOM BOARD BUILDING, M.G ROAD, AYURVEDA COLLEGE JUNCTION, THIRUVANATHAPURAM`** ## **`OTHER PRESENT:`** ``` SRI S. RAJMOHAN - SR GOVERNMENT PLEADER; SRI G.BIJU - STANDING COUNSEL- TRAVANCORE DEVASWOM BOARD; SRI V.V NANDAGOPAL NAMBIAR - STANDING COUNSEL - KERALA DEVASWOM RECRUITMENT BOARD; SRI K.P. SUDHEER - STANDING COUNSEL -COCHIN ``` -2- DBP No.113 of 2023 ## **`DEVASWOM BOARD`** ``` THIS DEVASWOM BOARD PETITION HAVING COME UP FOR ADMISSION ON 25.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -3- DBP No.113 of 2023 ## **ORDER** Anil K. Narendran, J. This DBP is registered _suo motu_ , vide proceedings dated 06.11.2023, based on a complaint dated nil received from one Sreehari Narayanaru, a copy of which has also been forwarded to the Hon’ble the Chief Justice (Petition No.882/3), against order No.97/R/20-23/KDRB dated 11.10.2023 of the Kerala Devaswom Recruitment Board, regarding acceptance of certificates issued by the Thantri. In the proceedings dated 06.11.2023, it was made clear that the question of maintainability shall be decided on the judicial side. 2. On 09.11.2023, when this matter came up for consideration, the learned Standing Counsel for Travancore Devaswom Board pointed out that the order dated 11.10.2023 of the Kerala Devaswom Recruitment Board was under challenge in WP(C)No.37006 of 2023, which ended in dismissal by the judgment dated 08.11.2023. By the order dated 09.11.2023, Registry was directed to show the name of the complainant in the cause title of this DBP and to issue notice to the complainant, enclosing there with a copy of the complete set of the DBP. 3. On 23.01.2024, when this DBP came up for consideration, there was no representation for the petitioner- -4- DBP No.113 of 2023 complainant, despite the service of notice. The learned Standing Counsel for the Travancore Devaswom Board pointed out the pendency of WP(C)No.1256 of 2024. Therefore, the DBP was ordered to be listed along with that writ petition today. 4. Heard the learned Senior Government Pleader for the 1[st] respondent, the learned Standing Counsel for the Travancore Devaswom Board for the 2[nd] respondent, the learned Standing Counsel for the Cochin Devaswom Board for the 3[rd] respondent and also the learned Standing Counsel for the Kerala Devaswom Recruitment Board for the 4[th] respondent. Despite service of notice, none appears for the petitioner-complainant. 5. Akhila Kerala Thanthri Samajam filed WP(C)No.1256 of 2024, under Article 226 of the Constitution of India, seeking a writ of certiorari for quashing Rule 5(1)(b)(1&2) of Travancore Devaswom Board Officers’ and Servants’ Service Rules, 2022 declaring that the Rules has been made precisely in deviance to Articles 16(5), 25 and 26 of the Constitution of India and to declare that the second qualification prescribed in notification No.97/R1/2023/KDRB dated 11.10.2023 issued by the 4[th] respondent Kerala Devaswom Recruitment Board for the post of Part-Time Santhi that “the certificates issued by the Thanthra Vidya Peetom the accredited Thanthra Vidyalayas by the -5- DBP No.113 of 2023 Travancore Devaswom Board or Kerala Devaswom Recruitment Board” alone will be considered as qualification, is liable to be declared as unconstitutional, and also seeking a writ of mandamus commanding the Travancore Devaswom Board and the Kerala Devaswom Recruitment Board to follow the traditions and customary practices followed till date for the appointments to the post of Santhi in Travancore Devaswom Board. 6. In WP(C)No.1256 of 2024, the grievance of the petitioner is with reference to a notification No.37/R1/2023/ KDRB dated 11.10.2023 issued by the 4[th] respondent Kerala Devaswom Recruitment Board calling for applications from the qualified candidates for the post of Part-Time Santhi in temples under the management of Travancore Devaswom Board. The number of vacancies notified is 75. According to the petitioner, certain provisions in the Travancore Devaswom Board Officers’ and Servants’ Service Rules, 2022 is ultra vires the constitution of India to the extent it precludes the age-old custom and tradition of appointing Santhi in a temple. Earlier, the certificates issued by the Thantris were also accepted. On 12.01.2024, when that writ petition came up for admission, the learned counsel for the petitioner sought for an adjournment to file an application to amend the reliefs sought for in this writ petition. -6- DBP No.113 of 2023 7. Today, when WP(C)No.1256 of 2024 is taken up for consideration, the learned counsel for the petitioner submitted that, in order to seek amendment of the reliefs, amendment of the statement of facts and grounds is necessary. Therefore, the petitioner may be permitted to withdraw that writ petition, without prejudice to its right to file a fresh writ petition with appropriate pleadings and proper reliefs. Therefore, by the judgment dated this date, WP(C)No.1256 of 2024 is dismissed as withdrawn, recording the aforesaid submission made by the learned counsel for the petitioner; however, without prejudice to the aforesaid right of the petitioner. 8. In **Bharat Singh v. State of Haryana [(1988) 4 SCC 534]** the Apex Court held that, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the Court will not entertain the point. The Apex Court held further that there is a distinction between a pleading under the Code of Civil Procedure Code, -7- DBP No.113 of 2023 1908 and a writ petition or a counter affidavit. While in a pleading, i.e., a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. 9. In **M/s.Larsen and Toubro Ltd. v. State of Gujarat [(1998) 4 SCC 387]** the Apex Court was dealing with a case arising out of the proceedings initiated for the acquisition of land for M/s.Larsen and Toubro Ltd. under the provisions of the Land Acquisition Act, 1894. The Apex Court noticed that, in the absence of any allegation that Rule 3 of the Land Acquisition (Companies) Rules, 1963 had not been complied with and there being no particulars in respect of non-compliance of Rule 4 also, it is difficult to see as to how the High Court could have reached the finding that statutory requirements contained in these Rules were not fulfilled before issuance of notification under Section 4 and declaration under Section 6 of the Land Acquisition Act. High Court did not give any reason as to how it reached the conclusion that Rules 3 and 4 had not been complied with in the face of the record of the case. Rather, it returned a finding which is unsustainable that it was "not possible on the basis of the material on record to hold that there was compliance with Rules -8- DBP No.113 of 2023 3 and 4". The Apex Court held that, it is not enough to allege that a particular Rule or any provision has not been complied. It is a requirement of good pleading to give details, i.e., particulars - as to why it is alleged that there is non compliance with a statutory requirement. Ordinarily, no notice can be taken on such an allegation which is devoid of any particulars. No issue can be raised on a plea, the foundation of which is lacking. Even where rule nisi is issued, it is not always for the department to justify its action when the court finds that a plea has been advanced without any substance, though ordinarily department may have to place its full cards before the court. On the facts of the case, the Apex Court found that the State has more than justified its stand that there has been compliance not only with Rule 4 but with Rule 3 as well, though there was no challenge to Rule 3 and - the averments regarding non compliance with Rule 4 were sketchy and without any particulars whatsoever. High Court was, therefore, not right in quashing the acquisition proceedings. 10. In **Narmada Bachao Andolan v. State of Madhya Pradesh [(2011) 7 SCC 639]** a Three-Judge Bench of the Apex Court held that, it is a settled proposition of law that a party has to plead its case and produce/adduce sufficient evidence to substantiate the averments made in the petition and in case the -9- DBP No.113 of 2023 pleadings are not complete the Court is under no obligation to entertain the pleas. Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned about the questions in issue, so that the parties may adduce appropriate evidence on the said issue. It is a settled legal proposition that as a rule relief not founded on the pleadings should not be granted. Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases from being expanded or grounds being shifted during trial. If any factual or legal issue, despite having merit, has not been raised by the parties, the court should not decide the same as the opposite counsel does not have a fair opportunity to answer the line of reasoning adopted in that regard. Such a judgment may be violative of the principles of natural justice. ## 11. In **M. Ramachandran Nair v. State of Kerala and** **others [2023:KER:78253]** DBP No.104 of 2023 was registered _suo motu_ based on a complaint dated 18.08.2023 [file -10- DBP No.113 of 2023 No.HCKL/7815/2023-DI-4] submitted by one M. Ramachandran Nair, who is the District Joint Secretary of Kerala Kshetra Samrakshana Samithi, Kottayam, alleging acquisition of Devaswom land for Sabarimala Greenfield Airport. Registry was directed to list the matter before the Devaswom Bench, for considering the question of maintainability on the judicial side. According to the complainant, the Devaswom land of Cheruvallikavu Bhagavathi Temple and Paschima Bhagavathi Temple is going to be acquired for Sabarimala Greenfield Airport, based on the administrative sanction granted by the Government in the order dated 06.01.2023, a copy of which is enclosed along with the complaint dated 18.08.2023. Though the complaint refers to various settlement registers and other documents, none of those documents form part of that complaint. In the order dated 21.11.2023 in DBP No.104 of 2023, this Court noticed that, in the complaint, the complainant virtually challenges the acquisition of land for Sabarimala Greenfield Airport, on the ground that the land proposed for acquisition includes the Devaswom land of Cheruvallikavu Bhagavathi Temple and Paschima Bhagavathi Temple, for which the complainant has to file a writ petition, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, with appropriate -11- DBP No.113 of 2023 ## pleadings and materials and with proper parties in the party array, instead of submitting a complaint. Accordingly, by the order dated 21.11.2023, DBP No.104 of 2023 was disposed of, without prejudice to the aforesaid right of the complainant. 12. In the instant case, the petitioner-complainant virtually challenges order No.97/R/20-23/KDRB dated 11.10.2023 of the 4[th] respondent Kerala Devaswom Recruitment Board, regarding acceptance of certificates issued by the Thantri. Such reliefs can be sought for only in a writ petition filed under Article 226 of the Constitution of India, with appropriate pleadings and materials and with proper parties in the party array. In the above circumstances, this DBP registered _suo motu_ , vide proceedings dated 06.11.2023, based on a complaint dated nil received from the complainant, is dismissed as not maintainable. Registry to communicate a copy of this order to the complainant. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **G. GIRISH, JUDGE** das