SSCR 2 of 2019 & RP No.243 of 2019 in DBP 11 of 2017

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **THURSDAY ,THE 14TH DAY OF MARCH 2019 / 23RD PHALGUNA, 1940 RP.No. 243 of 2019 IN DBP. 11/2017 AGAINST THE ORDER DATED 31.01.2019 IN DBP 11/2017 of HIGH COURT** ## **REVIEW PETITIONERS/RESPONDENTS 1 AND 3 IN DBP:** - **1 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, THIRUVANANTHAPURAM – 695 001** - **2 THE DEPUTY DIRECTOR KERALA STATE AUDIT DEPARTMENT, THIRUVANANTHAPURAM -695001.** **BY SR. GOVERNMENT PLEADER SHRI T.K.ANANDAKRISHNAN** ## **RESPONDENT/2nd RESPONDENT IN DBP:** **THE TRAVANCORE DEVASOM BOARD REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM.** **BY SHRI S. RAJMOHAN, SC, TDB.** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 14.03.2019, ALONG WITH SSCR.2/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **SSCR 2 OF 2019 & R.P.No.243 OF 2019 IN DBP 11 OF 2017** ## **2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** ## **&** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **THURSDAY ,THE 14TH DAY OF MARCH 2019 / 23RD PHALGUNA, 1940** ## **SSCR.No. 2 of 2019** IN THE MATTER OF TDB-SABARIMALA – SM REPORT NO.2/2019 – EXTENSION OF TENURE OF THE PRESENT COMMISSIONER OF TRAVANCORE DEVASWOM BOARD TILL AN ELIGIBLE PERSON IS APPOINTED AS PER LAW – SUO MOTU PROCEEDINGS INITIATED – REG. ## **PETITIONER:** ## **SUO MOTU** ## **PARTIES/RESPONDENTS:** - **1 TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, NANTHANCODE, THIRUVANANTHAPURAM** - **2 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM** - **DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM** - **3. BOARD, NANTHANCODE, THIRUVANANTHAPURAM** - **BY SRI.S.RAJMOHAN, SC, TDB BY SR.GOVERNMENT PLEADER SHRI T.K.ANANDAKRISHNAN** **THIS SABARIMALA SPECIAL COMMISSIONER REPORT HAVING BEEN FINALLY HEARD ON 14.03.2019, ALONG WITH RP.243/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **SSCR 2 OF 2019 & R.P.No.243 OF 2019 IN DBP 11 OF 2017** **3** ## **ORDER** ## **P.R. Ramachandra Menon, J.** Report No.2 of 2019 dated 18.01.2019 submitted by the Special Commissioner, Sabarimala appointed by this Court forms the basis for registration of SSCR 2 of 2019. As per the said report, the Special Commissioner has brought it to the notice of this Court that the tenure of the present Commissioner of the Devaswom Board, (Mr.N. Vasu), appointed by this Court as per order dated **14.11.2017 i** n **DBP No.11 OF 2017** ( by a common order in DBA.No.7 of 2017, DBP Nos.11 & 16 of 2017 & W.P(C)Nos.8093, 12835 & 16813 of 2017 ) would be coming to an end by 31.01.2019. 2. By virtue of the newly amended provision i.e. **Section 13B o** f the Travancore-Cochin Hindu Religious Institutions Act, it is for the Board to appoint an officer not below the rank of a Deputy Commissioner who is eligible to be promoted as Devaswom Commissioner ## **SSCR 2 OF 2019 & R.P.No.243 OF 2019 IN DBP 11 OF 2017** ## **4** and in the absence of such officer, an officer not below the rank of an Additional Secretary to Government on deputation, as Devaswom Commissioner. It is also pointed out that the rules for fixing the eligibility norms for appointment of Devaswom Commissioner are yet to be finalised, which made the Special Commissioner to point out the urgency involved, necessitating interference of this Court, so that there should not be any vacuum in the post. The post of Devaswom Commissioner is of pivotal importance, considering the powers, duties and responsibilities to be exercised by the Commissioner as per the Statute and the person requires to be one who will protect the rights and interests of the Deity, Devotees and Devaswom in all respects. 3. When the matter came up for consideration before this Court on 31.01.2019, we took note of the factual situation, the provisions of law and passed an order, whereby the tenure of the existing Commissioner was extended from 01.02.2019 by six weeks; ## **SSCR 2 OF 2019 & R.P.No.243 OF 2019 IN DBP 11 OF 2017** ## **5** simultaneously directing the Government to identify suitable and competent hands and submit a panel of three eligible persons to the Devaswom Board, within one month, with liberty to the Devaswom Board to furnish their remarks as to the credentials of the officers concerned. It was also made clear that the appointment, however, shall be effected only after getting further orders from this Court. Despite the above direction, the panel of Addl. Secretaries has not been filed by the Government so far. The Secretary of the Devaswom Board has filed an affidavit dated 29.01.2019, i.e. before passing the interim order as above. It is conceded that the Rules are yet to be framed and that there is no qualified Deputy Commissioner in the Devaswom Board, to be promoted to the post of Commissioner in terms of **Section 13B** of the **TCHRI Act** and further that a requisition has already been made by the Devaswom Board to the Government to appoint a person by deputation by virtue of the **second limb** of Section 13B. **SSCR 2 OF 2019 & R.P.No.243 OF 2019 IN DBP 11 OF 2017** **6** 4. In order to avoid repetition, we find it appropriate to extract the said interim order dated 31.01.2019, which will give a clear idea as to the sequence of events and the directions. _“By report dated 18.01.2019 of the Special Commissioner appointed by this Court at Sabarimala, it has been brought to the notice of this Court that the tenure of the Commissioner of Travancore Devaswom Board appointed by this Court for a period of one year is coming to an end today, i.e., 31.01.2019._ _2. It is pointed out that the statute has been amended by the State in the meanwhile, incorporating Section 13(B) of the Travancore-Cochin Hindu Religious Institutions (Amendment) Act (for short, “the Act”) as to the appointment of Devaswom Board Commissioner. The said amendment has been brought into force, causing Gazette Notification No. 22971/Leg B1/2017/Law dated 06.07.2018. The necessity to appoint Commissioner to take over the situation from 01.02.2018 is projected in the said report, also adding that, for identifying a qualified person within the Devaswom Board (in the rank of Deputy Commissioner, who is qualified for holding the post of Commissioner), the Rules have not been finalized. The nature of the post held by the Commissioner is also highlighted by the Special Commissioner._ _3. Meanwhile, the Government has also approached this Court by filing IA No. 1 of 2019 in DBP No. 11 of_ **SSCR 2 OF 2019 & R.P.No.243 OF 2019 IN DBP 11 OF 2017** **7** _2017 referring to the need for extension of the term of appointment of the Commissioner, appointed as per the proceedings by this Court in DBP No. 11 of 2017 vide order dated 14.11.2017. The newly incorporated/amended statutory provision is also referred to therein, adding that though the Board has already forwarded the Draft Rules with regard to the qualification for being appointed as the Commissioner, for promoting the employees of the Devaswom, they have not been finalized. It is in the said circumstances that extension of the tenure of the present Commissioner for a further period of one year from 31.01.2019 is sought for._ _4. Heard the learned Standing Counsel for Devaswom Board and the learned Senior Government Pleader._ _5. Section 13B of the Act recently brought into effect by which the amendment as mentioned above is as given below;_ “13B. Appointment of Devaswom Commissioner.- The Board shall appoint an officer not below the rank of a Deputy Commissioner who is eligible to be promoted as Devaswom Commissioner, and in the absence of such officer, an officer not below the rank of an Additional Secretary to Government on deputation, as Devaswom Commissioner.” _6. In the affidavit dated 29.01.2019 filed by the Secretary of the Devaswom in SSCR No. 2 of 2019, it is stated that, since the Rules of Promotion are still to be_ **SSCR 2 OF 2019 & R.P.No.243 OF 2019 IN DBP 11 OF 2017** **8** _finalized, the first limb of Section 13B is not available and as such, the post is requested to be filled up as provided under the second limb, i.e., by way of deputation from the Government, of a person not below the rank of 'Additional Secretary'. The version of the Devaswom Board as given in paragraph 3 of the affidavit is in the following lines;_ “The draft Rules for recruitment to the post of Devaswom commissioner is yet to be finalized and there are no eligible candidates working under the Board in the feeder category having required qualifications. Since the tenure of the present Devaswom Commissioner is coming to an end on 31.01.2019, the Board decided to make a request to the government to take urgent steps to fill up the post on deputation basis. Hence by communication ROC No. 01/18/Est-I dated 07.01.2019 the Secretary of the Board requested the State Government to take appropriate action to fill up the post on deputation by an officer not below the rank of Additional Secretary. A true copy of the communication ROC No. 01/18/Est-I dated 07.01.2019 is produced herewith and marked as **Annexure R1(a)** .” 1. _7. From the above, it is quite clear that the power of recruitment is, of course, vested with the Devaswom Board, but, the method of recruitment is by considering the qualified hands holding the post of Deputy Commissioner in the Devaswom Board at the first instance. Since the qualifications are still to be prescribed, the second course has to be pursued, i.e., by making a requisition to the Government for deputation. This has already been done by the Devaswom Board as per Annexure R1(a) requisition dated 07.01.2019. This being the position, it is for the_ **SSCR 2 OF 2019 & R.P.No.243 OF 2019 IN DBP 11 OF 2017** **9** _Government to identify competent hands, who are suitable to be appointed as the Commissioner, from persons holding the posts not below the rank of Additional Secretary._ _8. In the above circumstances, we direct the Government to identify suitable and competent hands and submit a panel of three such persons to the Devaswom Board and shall submit a report in this regard for pursuing further steps. This shall be done at the earliest, at any rate, within one month. The Devaswom Board shall furnish their remarks as to the credentials of the officers concerned. The appointment, however, shall be effected only after getting further orders from this Court. The tenure of the present Commissioner by name, Sri.N.Vasu (appointed by this Court as per the order dated 14.11.2017 in DBP No. 11 of 2017) will stand extended by a further period of 'six weeks' from 01.02.2019._ _Post on 11.03.2019._ “ 5. The learned Sr.Government Pleader appearing for the Review Petitioner/State of Kerala submits that there is an error apparent on the face of the records in so far as the order dated 31.01.2019 is concerned. According to the Review Petitioner, it is contended that, it is for the Government to appoint an Additional Secretary to the Government, on deputation, as the **10** ## **SSCR 2 OF 2019 & R.P.No.243 OF 2019 IN DBP 11 OF 2017** Devaswom Commissioner. The grounds raised are extracted below for convenience of Reference. _“A. There is an error apparent on the face of the_ _impugned order and hence the order may be reviewed_ _B. Rule 13(B) pertaining to the appointment of Devaswom Commissioner clearly says that a person in the rank of an Additional Secretary can be deputed by Government , if there is no eligible hand in the Devaswom Board to be promoted as Devaswom Commissioner. If a course is provided under the statute that alone is to be followed for appointment. But the order of this Hon'ble Court directed to file a Panel, for getting the approval from Devaswom Board and thereafter to get approval of the appointment of this Hon'ble Court. But there is no such procedure prescribed by the statute._ _C) The Government has full power to appoint a person of its choice as Commissioner, if there is no eligible hand in the Devaswom Board._ _D) The interim order is passed on the basis of contentions in the affidavit of Devaswom Board. The law says that Devaswom Board can request the Government to appoint a suitable person as the Commissioner . The decision to depute a suitable person is entirely vests with the Government. “ (sic)_ 6. We heard the learned Sr.Government Pleader as well as Mr. S. Rajmohan, the learned Standing Counsel ## **SSCR 2 OF 2019 & R.P.No.243 OF 2019 IN DBP 11 OF 2017** ## **11** for the Devaswom Board elaborately. 7. The crux of the submissions made by the learned Government Pleader, with reference to the case projected by the Review Petitioner, is that admittedly, no qualified Deputy Commissioner is available for promotion in the service of the Devaswom Board, (which is the first mode for appointment to the post in question) and as such, the second mode has been resorted to, i.e. appointment by deputation. The contention is that, it is for the Government to depute an Additional Secretary; there cannot be any direction to submit a panel of three officers to the Devaswom Board and to permit the Devaswom Board to identify a person of their choice; and hence it is for the Government to identify and appoint a person. We find it extremely difficult to accede to the said proposition. 8. **Section 13B** of the Act has already been extracted in the interim order dated 31.01.2019. The provision is crystal-clear, to the effect that the power of appointment is vested with the Board. The mode **SSCR 2 OF 2019 & R.P.No.243 OF 2019 IN DBP 11 OF 2017** ## **12** of recruitment alone is stated in the two different limbs; firstly by promoting a qualified Deputy Commissioner in the service of the Devaswom Board and in the absence of qualified officer, by deputation of an officer not below the rank of an Additional Secretary to Government in the service of the Government. **The absence of any qualified hand in the Devaswom does not transmit the power of appointment of the Commissioner from the Devaswom Board to the State** **Government** . The role of the State Government is only to spare the service of an Additional Secretary **to be appointed on deputation,** once a requisition is made by the Devaswom Board. If the person so deputed by the Government is found as not acceptable, (if he is having tainted track record in some or other manner, detrimental to the rights and interests of the Deity and the Devaswom), it is quite open for the Devaswom Board to bring it to the notice of the Government without appointing the said person and seek for another candidate. **SSCR 2 OF 2019 & R.P.No.243 OF 2019 IN DBP 11 OF 2017** ## **13** 9. In this context, it is relevant to note that the Commissioner of the Devaswom Board **should always be a Hindu by religion.** Recently there was an amendment to **Section 29(2)** of the **TCHRI Act,** whereby the word **'Hindu** ' was deleted from the relevant provision, which was subjected to challenge before this Court in **W.P.(C)33856 of 2018** . When the said matter was considered on 16.10.2018, it was asserted by the learned Advocate General, on the basis of the instructions received that deletion of the said word “ **Hindu** ” from the said provision was having no consequence at all and that only a **'Hindu'** can be appointed as Commissioner of the Devaswom; more so since all the appointments in the Devaswom are exclusively earmarked for **'Hindus'.** Since the appointment of Commissioner is only **by way of promotion** from qualified Deputy Commissioners, only a Hindu can be appointed as the Commissioner. This was asserted in the affidavit dated 25.10.2018 filed by the Principal Secretary, Revenue Devaswom Department, Government of ## **SSCR 2 OF 2019 & R.P.No.243 OF 2019 IN DBP 11 OF 2017** ## **14** Kerala. Accordingly, the judgment was delivered by this Court (on 26.10.2018) virtually accepting the stand taken by the Government and in turn, giving effect to the amendment, as above. 10. Coming to the present proposition mooted by the Government; that if there is no qualified person to be appointed as Commissioner of the Devaswom, the power to appoint will be shifted to the hands of the Government, it is quite evident that it will turn the position upside down. To put it more clear, **if the version of the Government, that Government can identify the person and will depute the person, who shall be appointed by the Devaswom Board is accepted, it may be quite possible for the Government to identify** **a person (a Non-Hindu) working as Addl.Secretary as well and depute him to be appointed as the Commissioner.** This definitely will be contrary to the Scheme of the Statute and hence cannot be entertained. 11. When the Statute is finalised by bringing out the amendment, providing two modes of appointment; ## **SSCR 2 OF 2019 & R.P.No.243 OF 2019 IN DBP 11 OF 2017** ## **15** firstly by promotion of a qualified Deputy Commissioner in the Devaswom Board and in the absence of any such officer, **by way of deputation** , it only means that a person in the rank of Additional Secretary to Government shall be made available by the Government, on requisition, for being appointed as Commissioner and nothing more. **The power of appointment vested with the Devaswom does never get automatically transferred to the Government, for identifying a person of their choice, even compromising with the rights and interests of the Devaswom, to be appointed as the Commissioner. The Government cannot say or insist that the Devaswom will have to be satisfied with the person identified or nominated by the Government.** It is always open for the Devaswom to refuse to appoint the person nominated by the Government, if he is having a blemished track record or if he is otherwise not suitable to be appointed for meeting the responsibilities of the Commissioner, to be discharged under the statute, protecting the larger interests of the Deity and the ## **SSCR 2 OF 2019 & R.P.No.243 OF 2019 IN DBP 11 OF 2017** ## **16** Devotees. 12. Viewed from the above perspective, we are of the view that the Review Petition is quite illconceived. It has been made clear by the Apex Court, on many an occasion that the power of review is not liable to be invoked unless there is an 'error apparent on the face of the record'. Review Petition is not a substitute for appeal, in view of the law declared in _**Meera Bhanja vs. Nirmala Kumari Choudhuri**_ [ **AIR 1995 SC** **455].** The Apex Court held that an “error apparent on the face of the record” must be such an error which would strike one on mere looking at record and would not require any long drawn process of reasoning on points, where there may be two different opinions. The Bench alerted all concerned that the power of review is not a substitute for appeal. The position was reiterated in **Parsion Devi vs. Sumitri Devi** .[ **(1997) 8** **SCC 715]** as well. We hold that there is no error apparent on the face of the record. The Review Petition fails and it is dismissed accordingly. ## **SSCR 2 OF 2019 & R.P.No.243 OF 2019 IN DBP 11 OF 2017** ## **17** 13. Coming back to **SSCR 2 of 2019,** the learned Sr.Government Pleader as well as the learned Standing Counsel for the Devaswom Board submits that the extended tenure of the present Commissioner, by virtue of the order dated 31.01.2019 passed by this Court, is coming to an end today. It is stated that the regular annual festival of Sabarimala temple has been started and various tasks/responsibilities have to be met by the Commissioner, by virtue of which the post cannot be left vacant. It is also pointed out by the learned Sr. Government Pleader that steps will be pursued on war footing to submit a panel of three officers in the rank of Addl. Secretary to the Government, to be forwarded to the Devaswom and to be appointed in the manner as mentioned in the said order. Breathing time is also sought for in this regard. 14. Considering the request and also in view of the larger interest, we find it appropriate to grant two weeks' time for submitting the panel. On submitting the panel as above, the traits of the ## **SSCR 2 OF 2019 & R.P.No.243 OF 2019 IN DBP 11 OF 2017** ## **18** officers shall be considered and after considering the suitability, one among the persons included in the panel could be appointed by the Devaswom Board, after getting consent/approval of this Court, by completing the exercise, by filing a DBA in this regard. 15. As a stop-gap arrangement, we accept the suggestion made by the learned Sr.Government Pleader that the officer by name **M. Harshan,** S/o. V.M. Nampoodiri, presently working as Addl.Secretary of the Revenue Devaswom Department could be identified as the person to whom the charge of the Commissioner, Travancore Devaswom Board could be handed over by the present Commissioner, Shri N. Vasu, on expiry of his extended tenure. It is ordered accordingly. It is open for the Government to include the name of the said officer (Mr. M.Harshan) as well in the panel and it is still open for the Devaswom Board to consider whether he could be appointed as the Commissioner, after considering the traits of the persons concerned. 16. It is brought to the notice of this Court by ## **SSCR 2 OF 2019 & R.P.No.243 OF 2019 IN DBP 11 OF 2017** ## **19** Shri N. Reghuraj, the learned Standing Counsel of the HPC (High Power Committee), that the Commissioner of the Devaswom Board happens to be the Member Secretary of the HPC appointed by this Court. It is also pointed by the learned counsel that a meeting of the said Committee is scheduled to be held on 19.03.2019. Since we permit Mr. M. Harshan, Addl. Secretary of the Revenue Devaswom Department to assume the charge of the Devaswom Commissioner on expiry of the period of the present Commissioner, the said officer shall discharge the duties of the Member Secretary of the HPC as well, also attending the meeting scheduled to be held on 19.03.2019 or on such other dates to which the meeting may stand adjourned. SSCR 2 of 2019 stands closed accordingly. **Sd/- P.R. RAMACHANDRA MENON, JUDGE** **Sd/- N. ANIL KUMAR, JUDGE** **lk**