Suresh R. Potti v. Travancore Devaswom Board & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ## **`&`** ## **`THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR`** ``` MONDAY, THE 19[TH] DAY OF SEPTEMBER 2022 / 28TH BHADRA, 1944 ``` ## **`W.P.(C)NO.29068 OF 2022`** ## **`PETITIONER:`** ``` SURESH R. POTTI, AGED 53 YEARS, S/O. RAMAN POTTI, VARRILLATHUMADOM, 90/10, THALAYAZHAM. P.O., VAIKOM, KOTTAYAM - 686 607. ``` ``` BY ADVS. ``` ``` M.RAMESH CHANDER (SR.) BALU TOM BONNY BENNY GOVIND G. NAIR BEJOY JOSEPH P.J. ``` ## **`RESPONDENTS:`** - **`1 THE TRAVANCORE DEVASWOM BOARD, NANTHANCODE, DEVASWOM HEADQUARTERS, KAWDIAR P.O., THIRUVANANTHAPURAM - 695 003, REPRESENTED BY ITS SECRETARY.`** - **`2 DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, DEVASWOM HEADQUARTERS, KAWDIAR P.O., THIRUVANANTHAPURAM - 695 003.`** - **`3 STATE OF KERALA, REPRESENTED BY SECRETARY TO REVENUE (DEVASWOM) DEPARTMENT, ROOM 394, 1ST FLOOR, MAIN BLOCK, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.`** ``` BY ADV SRI.G.BIJU, SC, TRAVANCORE DEVASWOM BOARD ``` ## **`OTHER PRESENT:`** ``` SRI S.RAJMOHAN – SR. GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.09.2022, ALONG WITH WP(C).29073/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` W.P.(C)Nos.29068 & 29073 of 2022 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` MONDAY, THE 19[TH] DAY OF SEPTEMBER 2022 / 28TH BHADRA, 1944 ``` ## **`W.P.(C)NO.29073 OF 2022`** ## **`PETITIONER:`** ``` SURESH R. POTTI, AGED 53 YEARS, S/O. RAMAN POTTI, VARRILLATHUMADOM, 90/10, THALAYAZHAM P.O., VAIKOM, KOTTAYAM - 686 607. ``` ``` BY ADVS. M.RAMESH CHANDER (SR.) BALU TOM BONNY BENNY GOVIND G. NAIR BEJOY JOSEPH P.J. ``` ## **`RESPONDENTS:`** - **`1 TRAVANCORE DEVASWOM BOARD, NANTHANCODE, DEVASWOM HEADQUARTERS, KAWDIAR P.O., THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. PIN- 695 003`** - **`2 DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, DEVASWOM HEADQUARTERS, KAWDIAR P.O., THIRUVANANTHAPURAM - 695 003.`** - **`3 STATE OF KERALA, REPRESENTED BY SECRETARY TO REVENUE (DEVASWOM) DEPARTMENT, ROOM 394, 1ST FLOOR, MAIN BLOCK, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.`** ``` BY ADV SRI.G.BIJU, SC, TRAVANCORE DEVASWOM BOARD ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.09.2022, ALONG WITH WP(C).29068/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 3 ``` W.P.(C)Nos.29068 & 29073 of 2022 ## **JUDGMENT** ## **Anil K. Narendran, J** . Since common issue is raised, these writ petitions are heard together and are being disposed of by this common judgment. 2. W.P.(C)No.29068 of 2022:- The petitioner, who submitted Ext.P4 application for being selected as Melsanthi of Sabarimala Devaswom, for the year 1198 ME, pursuant to the notification issued by the 1[st] respondent Travancore Devaswom Board, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P6 rejection memo dated 23.08.2022 and Ext.P9 order dated 05.09.2022 of the 1[st] respondent, whereby the decision taken in Ext.P6 rejection memo stands confirmed. The petitioner has also sought for a writ of mandamus commanding the respondents to allow him to participate in the interview for selection of Melshanti of Sabarimala Devaswom. 3. W.P.(C)No.29073 of 2022:- The petitioner, who submitted Ext.P4 application for being selected as Melsanthi of Malikappuram Devaswom, for the year 1198 ME, pursuant to the notification issued by the 1[st] respondent Travancore Devaswom ``` 4 ``` ## W.P.(C)Nos.29068 & 29073 of 2022 Board, has filed this writ petition seeking a writ of certiorari to quash Ext.P6 rejection memo dated 23.08.2022 and Ext.P9 order dated 05.09.2022 of the 1[st] respondent, whereby the decision taken in Ext.P6 rejection memo stands confirmed. The petitioner has also sought for a writ of mandamus commanding the respondents to allow him to participate in the interview for selection of Melshanti of Malikappuram Devaswom. 4. On 15.09.2022, when these writ petitions came up for admission, this Court passed the following order; “In Ext.P3 judgment dated 26.07.2022 in W.P.(C)Nos. 19012 and 19016 of 2021, this Court has made it clear that, in case the report of the Vigilance Wing of the Travancore Devaswom Board on the application made by the petitioner for selection as Melsanthi of Sabarimala Devaswom and Malikappuram Devaswom for the year 1198 M.E. is not in favour of the petitioner, the adverse materials relied on by the Vigilance Wing for making such an observation shall be furnished to the petitioner and he shall be given a reasonable opportunity to substantiate his contentions. It was also made clear that, it would be open to the petitioner to submit applications, pursuant to the notification issued by the Travancore Devaswom Board for the year 1198 M.E., along with documents to show that he belongs to Malayala Brahmin. A reading of Ext.P6 rejection memo and the order dated 05.09.2022 would show that the specific directions ``` 5 ``` ## W.P.(C)Nos.29068 & 29073 of 2022 contained in Ext.P3 judgment dated 26.07.2022 have been flouted by the 1[st] respondent. Having considered the pleadings and materials on record and also the submissions made by the learned Senior Counsel for the petitioner, the learned Standing Counsel for Travancore Devaswom Board and also the learned Senior Government Pleader for the 3[rd] respondent State, we deem it appropriate to direct the Secretary of the 1[st] respondent Board to be personally present in Court on 19.09.2022 at 2.00 p.m., along with the files relating to the applications made by the petitioner for selection as Melsanthi of Sabarimala Devaswom and Malikappuram Devaswom for the year 1198ME, the report of the Vigilance Wing and also the minutes of the personal hearing conducted on 03.09.2022.” 5. Today, when these matters are taken up for consideration, the Secretary of the 1[st] respondent Travancore Devaswom Board is personally present in Court along with the relevant files. 6. Heard the learned Senior Counsel for the petitioner, the learned Standing Counsel for Travancore Devaswom Board for respondents 1 and 2 and also the learned Senior Government Pleader for the 3[rd] respondent State. 7. The issue that arises for consideration in these writ petitions is as to whether any interference is warranted on Ext.P9 order dated 05.09.2022 in the respective writ petitions, ``` 6 ``` ## W.P.(C)Nos.29068 & 29073 of 2022 whereby the applications made by the petitioner for selection as Melsanthi of Sabarimala Devaswom and Malikappuram Devaswom stand rejected for the reasons stated therein, thereby confirming the stand taken in Ext.P6 rejection memo in the respective writ petitions. 8. The petitioner had earlier approached this Court in W.P.(C)Nos.19012 of 2021 and 19016 of 2021, challenging the rejection of his applications for selection as Melsanthi of Sabarimala Devaswom and Malikappuram Devaswom, for the year 1197 ME. Those writ petitions were disposed of by Ext.P3 judgment dated 26.07.2022. Paragraphs 13 to 17 of that judgment read thus; “13. In the instant case, one of the grounds on which the petitioner's applications for selection as Melsanthi of Sabarimala Devaswom and Malikappuram Devaswom stand rejected is that he does not belong to Malayala Brahmin. In support of the claim that the petitioner belongs to Malayala Brahmin, the learned Senior Counsel for the petitioner would place reliance on Ext.P14 certificate of the petitioner's father, which is placed on record along with I.A.No.2 of 2021, and also Ext.P18 certificate dated 05.10.2021 produced along with I.A.No.4 of 2021, issued by the Village Officer, Thalayazham, wherein it is certified that the petitioner belongs to Malayala Brahmin. Admittedly, Exts.P14 and ``` 7 ``` W.P.(C)Nos.29068 & 29073 of 2022 P18 were not enclosed along with Ext.P9 application made by the petitioner. Therefore, relying on the aforesaid documents, the petitioner cannot raise a valid challenge against Ext.P11 rejection memo or Ext.P16 order passed by the 1[st] respondent Board, whereby his applications for selection as Melsanthi of Sabarimala Devaswom and Malikappuram Devaswom stand rejected on the ground that the available materials would not show that the petitioner belongs to Malayala Brahmin. If, as a matter of fact, the petitioner belongs to Malayala Brahmin, it is for him to substantiate the said claim by producing appropriate materials along with his applications for the current year, i.e., 1198 M.E. 14. Another reason stated in Ext.P16 orders for rejecting Ext.P9 applications is the observations made by the Vigilance Wing in Annexure R1(a) enquiry report, wherein it is stated that the devotees of Thrippakudam Devaswom are not having good opinion about the petitioner, where he is functioning as Melsanthi and that, one Vijayamma has filed a complaint in the Women Cell complaining about his immoral activities. 15. The learned Standing Counsel for Travancore Devaswom Board would submit that, on receipt of applications for selection as Melsanthies of Sabarimala Devaswom and Malikappuram Devaswom, the Secretary of the Board will forward those applications to Chief Vigilance and Security Officer for enquiry and report. The report of the Vigilance Wing shall be enclosed along with the respective applications when it is placed before the Board for consideration. The applicants, who are issued ``` 8 ``` W.P.(C)Nos.29068 & 29073 of 2022 with rejection memo after the scrutiny of applications by the Board, will be given an opportunity to submit objection. After considering the objection, with notice to the respective applicant, the Board will take a decision as to whether he should be called for interview. 16. The learned Standing Counsel for Travancore Devaswom Board would submit that, in view of the observations made in Annexure R1(a) report of the Vigilance Wing, the Board rejected Ext.P9 applications made by the petitioner, taking into consideration the stipulations in Ext.P8 notifications. Per contra, the learned Senior Counsel for the petitioner would submit that the observations in Annexure R1(a) enquiry report of the Vigilance Wing are absolutely without any basis. The petitioner was not granted a reasonable opportunity to substantiate his case, after furnishing the adverse materials relied on by the Vigilance Wing. 17. Having considered the submissions made by the learned Senior Counsel for the petitioner, the learned Standing Counsel for Travancore Devaswom Board and also the learned Senior Government Pleader, we find no reason to interfere with Ext.P11 rejection memo or Ext.P16 order in the respective writ petitions, whereby Ext.P9 applications made by the petitioner for selection as Melsanthi of Sabarimala Devaswom and Malikappuram Devaswom for the year 1198 M.E. stand rejected for the reasons stated therein. It would be open to the petitioner to submit applications pursuant to the notification issued by the Travancore Devaswom Board for selection as Melsanthi of Sabarimala Devaswom and ``` 9 ``` W.P.(C)Nos.29068 & 29073 of 2022 Malikappuram Devaswom for the year 1198 M.E., along with the documents to show that he belongs to Malayala Brahmin. In case the report of the Vigilance Wing on the application made by the petitioner is not in favour of the petitioner, the adverse materials relied on by the Vigilance Wing for making such an observation shall be furnished and he shall be given a reasonable opportunity to substantiate his contentions.” 9. The grievance of the petitioner is that showing scant regard to the specific directions contained in Ext.P3 judgment of this Court, copy of the report of the Vigilance Wing and also the adverse materials relied on by the Vigilance Wing for making such an observation were not furnished to the petitioner and he was also not afforded with a reasonable opportunity to substantiate his contentions. 10. From the files made available for the perusal of this Court by the Secretary of the 1[st] respondent Board, we notice that, the petitioner was afforded with an opportunity of personal hearing. As per the minutes of the meeting of the Board, during personal hearing the petitioner was provided with the report of the Vigilance Wing. The learned Senior Counsel for the petitioner, as instructed by the instructing counsel, would submit that the petitioner was not provided with the report of the Vigilance Wing, during the personal hearing. The 1[st] respondent has no such ``` 10 ``` ## W.P.(C)Nos.29068 & 29073 of 2022 case in Ext.P9 order. The learned Senior Counsel would also point out that the specific direction contained in Ext.P3 judgment is that, in case the report of the Vigilance Wing on the application made by the petitioner is not in his favour, the adverse materials relied on by the Vigilance Wing for making such an observation shall be furnished to the petitioner and he shall be given a reasonable opportunity to substantiate his contentions. 11. The Secretary of the 1[st] respondent Board and also the learned Standing Counsel for Travancore Devaswom Board would submit that such an opportunity was not afforded to the petitioner. 12. Having considered the pleadings and materials on record and also the submissions made by the learned counsel on both sides, we find that the procedure adopted by the 1[st] respondent Board while rejecting the applications made by the petitioner for selection as Melsanthi of Sabarimala Devaswom and Malikappuram Devaswom is in violation of the specific directions contained in Ext.P3 judgment. The procedure adopted by the Board is per se arbitrary and illegal and it is in flagrant violation of the principles of natural justice. We deprecate in the strongest words, the casual approach of the 1[st] respondent ``` 11 ``` ## W.P.(C)Nos.29068 & 29073 of 2022 Board while considering the applications of the petitioner, despite the specific directions contained in Ext.P3 judgment. 13. In such circumstances, this writ petitions are disposed of by setting aside Ext.P9 orders dated 05.09.2022 in the respective writ petitions and by directing the 1[st] respondent Board to reconsider the applications made by the petitioner for selection as Melsanthi of Sabarimala Devaswom and Malikappuram Devaswom, after furnishing the petitioner copy of the report of the Vigilance Wing and also the adverse material relied on by the Vigilance Wing for making such an observation. Those materials shall be furnished to the petitioner by 4.00 p.m. on 20.09.2022. The petitioner shall be personally present before the Secretary of the 1[st] respondent Board for collecting those materials. Thereafter, the petitioner shall submit a written submission before the 1[st] respondent Board on 22.09.2022, raising appropriate legal and factual contentions, which shall be acknowledged by the Secretary of the 1[st] respondent Board. The 1[st] respondent Board shall consider that written submission in its next meeting scheduled to be held on 24.09.2022. The petitioner shall be afforded with an opportunity of being heard and the 1[st] respondent Board shall taken an appropriate decision ``` 12 ``` ## W.P.(C)Nos.29068 & 29073 of 2022 in the matter, which shall be communicated to the petitioner forthwith, since the interview is scheduled to be held on 25.09.2022 and 27.09.2022. 14. The learned Standing Counsel for Travancore Devaswom Board would submit that the decision taken by the 1[st] respondent Board shall be communicated to the petitioner on 24.09.2022 itself. The aforesaid submission made by the learned Standing Counsel for Travancore Devaswom Board is recorded. 15. It is made clear that this Court has not expressed anything on the claim made by the petitioner for being selected as Melsanthi of Sabarimala Devaswom and Malikappuram Devaswom. Ext.P9 order in the respective writ petitions are set aside, since those orders are issued in violation of the principles of natural justice. 16. While taking a decision on the applications made by the petitioner, the 1[st] respondent Board shall take note of the law laid down by the Division Bench of this Court in **Mohandas Embranthiri v. Travancore Devaswom Board [2001 (1) KLT 203], Krishnan Namboothri v. Travancore Devaswom Board [2015 (5) KHC 829], Rajesh J. Potti v. Travancore Devaswom Board [2018 (5) KHC 220]** and also the ``` 13 ``` W.P.(C)Nos.29068 & 29073 of 2022 judgment in **Travancore Devaswom Board v. Deputy Examiner for Local Fund Audit** [Order dated 04.07.2022 in DBA No.5 of 2022]. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** min ``` 14 ``` W.P.(C)Nos.29068 & 29073 of 2022 ## **`APPENDIX OF WP(C)29073/2022`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1 PHOTOCOPY OF THE ORDER OF THE BOARD DATED 15.07.2015. Exhibit P2 PHOTOCOPY OF THE JUDGMENT IN WPC 22120/16 DATED 07.07.2016. Exhibit P3 PHOTOCOPY OF THE JUDGMENT IN WPC 19016/2021 DATED 26.07.2022. Exhibit P4 PHOTOCOPY OF THE APPLICATION BEFORE THE BOARD DATED 14.07.2022 WITHOUT THE DOCUMENTS. Exhibit P5 PHOTOCOPY OF THE CASTE CERTIFICATE ISSUED BY THE VILLAGE OFFICER, THALAYAZHAM DATED 05.10.2021. Exhibit P6 PHOTOCOPY OF THE REJECTION MEMO DATED 23.08.2022 ISSUED BY THE BOARD. Exhibit P7 PHOTOCOPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER, THALAYAZHAM DATED 04.08.2022. Exhibit P8 PHOTOCOPY OF THE REPLY TO THE SECRETARY, TRAVANCORE DEVASWOM BOARD DATED 26.08.2022 WITHOUT DOCUMENTS. Exhibit P9 PHOTOSTAT COPY OF THE ORDER NO.R.O.C.8063/2022/SABA DATED 5/9/2022 ISSUED BY THE 1ST RESPONDENT Exhibit P10 PHOTOSTAT COPY OF THE MEMO DATED 26/9/2017 ISSUED BY THE 1ST RESPONDENT Exhibit P11 PHOTOSTAT COPY OF THE COMMUNICATION DATED 11/12/2013 RECEIVED UNDER THE RIGHT TO INFORMATION ACT ``` ``` 15 ``` W.P.(C)Nos.29068 & 29073 of 2022 ## **`APPENDIX OF WP(C)29068/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1 PHOTOCOPY OF THE ORDER OF THE BOARD DATED 15.07.2015. Exhibit P2 PHOTOCOPY OF THE JUDGMENT IN WPC 22120/16 DATED 07.07.2016. Exhibit P3 PHOTOCOPY OF THE JUDGMENT IN WPC 19012/2021 DATED 26.07.2022. Exhibit P4 PHOTOCOPY OF THE APPLICATION BEFORE THE BOARD DATED 14.07.2022 WITHOUT THE DOCUMENTS. Exhibit P5 PHOTOCOPY OF THE CASTE CERTIFICATE ISSUED BY THE VILLAGE OFFICER, THALAYAZHAM DATED 05.10.2021. Exhibit P6 PHOTOCOPY OF THE REJECTION MEMO DATED 23.08.2022 ISSUED BY THE BOARD. Exhibit P7 PHOTOCOPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER, THALAYAZHAM DATED 04.08.2022. Exhibit P8 PHOTOCOPY OF THE REPLY TO THE SECRETARY, TRAVANCORE DEVASWOM BOARD DATED 26.08.2022 WITHOUT DOCUMENTS. Exhibit P9 PHOTOSTAT COPY OF THE ORDER NO.R.O.C.8063/2022/SABA DATED 5/9/2022 ISSUED BY THE 1ST RESPONDENT. Exhibit P10 PHOTOSTAT COPY OF THE MEMO DATED 26/9/2017 ISSUED BY THE 1ST RESPONDENT. NO.R.O.C.669/17/SABA DATED 26/9/2017 Exhibit P11 PHOTOSTAT COPY OF THE COMMUNICATION DATED 11/12/2013 RECEIVED UNDER THE RIGHT TO INFORMATION ACT. NO.BB3/90998/13/CGE DATED 11.12.2013 ```