Allowed

M.P.Kuberan v. Taliparambu Trichambaram Kanjirangad

Kerala HC18 Sept 2009WP(C)/1697/2009

Case brief

AI extract

What is this about?

A single judge held that a Devaswom cannot challenge a Government order granting age exemption to an appointed Executive Officer, even if the new Managing Committee opposed it. The order was valid despite lack of notice to the Devaswom. The petitioner was directed to be reinstated.

What did the court decide?

WP(C) No. 20064/09 dismissed; WP(C) No. 1697/09 disposed of directing reinstate petitioner in service

M.P.Kuberan Vs Taliparambu Trichambaram Kanjirangad — Service and Employment | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR

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THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930

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WP(C).No. 1697 of 2009(B)

PETITIONER:

M.P. KUBERAN, S/O. LATE HARIDASAN NAMBOOTHIRI, AGED 38 YEARS, MUNDOTT ILLAM, CHAVANAPUZHA.P.O, KARIMBAM, TALIPARAMBU TALUK, KANNUR DISTRICT.

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BY ADV. SRI.V.CHITAMBARESH (SR.)

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RESPONDENTS:

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TALIPARAMBU TRICHAMBARAM KANJIRANGAD DEVASWOM, REP. BY ITS MANAGING COMMITTEE REPRESENTED REPRERSENTED BY ITS PRESIDENT, TALIPARAMBU-670 141, KANNUR DISTRICT.

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THE MALABAR DEVASWOM BOARD, REPRESENTED BY ITS PRESIDENT, CIVIL STATION, MALAPARAMBU, KOZHIKODE.

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STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE (DEVASWOM), SECRETARIAT, TRIVANDRUM.

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BY GOVT. PLEADER SMT. ANU SIVARAMAN

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ANTONY DOMINIC, J. ================ W.P.(C) NOs. 1697, 3873 & 20064 OF 2009

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=============================

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Dated this the 18^th day of September, 2009

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J U D G M E N T

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The issue raised in WP(C) NOs.1697/09 and 20064/09 is regarding the appointment of Sri.M.P.Kuberan as the Executive Officer of Taliparambu Trichambaram Kanjirangad Devaswom (hereinafter referred to as 'T.T.K.Devaswom' for short). The issue arising in WP(C) No.3873/09 filed by the T.T.K.Devaswom is regarding the validity of the order of Commissioner of Malabar Devaswom Board declining approval to the temporary appointment made by them to the post of Executive officer.

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I shall first make reference to the facts as pleaded in WP(C) No.1697/09 filed by Sri.M.P.Kuberan. Ext.P1 in the writ petition is the scheme framed for the administration of the T.T.K.Devaswom, which was approved by the Sub Court, Payyannur in its order in OP 60/1987. Clause 10 of Ext.P1 Scheme provides that the Managing Committee shall appoint an Executive Officer to conduct the day to day affairs of the temple as required by the President or any member of the Committee.

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In terms of the rules framed under Section 100(2) of

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WPC 1697, 3873 & 20064/09

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Madras Religious and Charitable Endowments Act, 1951, Rules regarding the conditions of service of Executive Officers, have been framed under the Madras Hindu Religious and Charitable Endowments Rules. As per the Table attached to the said Rule, in respect of a Grade I temple, as in the instant case, the age prescribed for appointment to the post of Executive Officer is that it shall not exceed 35 years on the 1^st January of the year of recruitment.

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Inspite of the aforesaid statutory Rule, on 14/4/08, the T.T.K.Devaswom issued Ext.P2 notification inviting applications to fill up the post of Executive Officer, prescribing that the age of the applicant shall be below 40 years. Accordingly, Sri.M.P.Kuberan, the petitioner in WP(C) No.1697/09, whose date of birth is 12/1/70 submitted Ext.P3 application enclosing his Bio data. The Managing committee of the T.T.K.Devaswom conducted selection and as he was successful, Sri.M.P.Kuberan was issued Ext.P4 order dated 8/5/08, temporarily appointing him as the Executive Officer. As directed in the order, he assumed charge and was discharging duties. Sri.M.P.Kuberan was a practicing lawyer and immediately on his appointment, as per Ext.P4, he got his

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practice suspended w.e.f. 9/5/08 as per Ext.P5 communication issued by the Bar Council of Kerala.

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While the petitioner was thus continuing as Executive Officer on temporary basis, by Ext.P8 dated 26/7/2008, invoking the power of the Government to grant exemption to any person from all or any of the provisions of the Rules made under Section 100 of the Madras Hindu Religious and Charitable Endowments Act, 1951, the T.T.K.Devaswom submitted Ext.P8 seeking an order from the Government relaxing the age limit prescribed under the Rules. The request was also recommended by the Malabar Devaswom Board. However, by Ext.P7 order dated 11/12/2008, the Government conveyed its decision to reject the request, as according to the Government, there was no statutory provision enabling relaxation of the age limit prescribed. It is stated that this order was passed without hearing the petitioner and therefore, he submitted Ext.P9 representation to the President, Malabar Devaswom Board. It is stated that the Malabar Devaswom Board recommended his case and forwarded Ext.P9 to the Government. While the matter was thus pending consideration of the Government, the T.T.K.Devaswom passed

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Ext.P10 resolution dated 12/1/2009, resolving to terminate the services of Sri.M.P.Kuberan and it was thereupon that he filed WP (C) No.1697/09.

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On 15/1/2009, the writ petition was disposed of directing the Malabar Devaswom Board to consider Ext.P9 and pass orders thereon.

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From here onwards, I shall refer to the facts as pleaded in WP(C) No.20064/09 filed by T.T.K.Devaswom. By Ext.P3 produced in this writ petition, RP No.104/09 filed by T.T.K.Devaswom was allowed and the judgment in WP(C) No.1697/09 was recalled. The learned Judge thereafter by Ext.P2 order, admitted the writ petition and directed that no permanent appointment shall be made to the post of Executive Officer. It is also stated that the additional 5^th respondent attempted to get the order vacated by filing IA No.2511/2009, but by Ext.P4 order, the prayer was rejected. Although according to T.T.K.Devaswom, by its resolution passed on 12/1/2009, services of Sri.M.P.Kuberan was terminated, still by Ext.P5 resolution dated 18/5/2009, the T.T.K.Devaswom resolved to call for his explanation on certain allegations of misconduct. Accordingly,Ext.P6 show cause notice

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dated 23/5/09 was issued to him and he submitted Ext.P7 reply.

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While the matter was thus pending, by Ext.P8 order dated 29/6/09, the Government granted exemption to Sri.M.P.Kuberan for the limited purpose of his appointment as Executive Officer in the T.T.K.Devaswom. This Government order makes reference to Ext.P7 application made by the Devaswom and Ext.P9 application made by Sri.M.P.Kuberan (these exhibits are produced in WP(C) No.1697/09). It was thereupon that the T.T.K.Devaswom filed WP(C) No.20064/09, challenging Ext.P8, the Government order referred to above.

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During the pendency of the above disputes, taking advantage of the interim order passed in WP(C) No.1697/09 enabling the T.T.K.Devaswom to make temporary appointment, T.T.K.Devaswom made the appointment to the post of Executive Officer, but however, the same was declined to be approved by the Malabar Devaswom Board and it is that order which is called in question by the T.T.K.Devaswom in WP(C) No.3873/09.

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One of the devotees of the temple under the Devaswom has filed IA 10316/09 in WP(C) No.1697/09 and he is supporting the Devaswom in its contentions. Similarly, one of the

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members of the Managing Committee of the T.T.K.Devaswom also filed IA 9596/09 in WP(C) No.20064/09, supporting the Devaswom.

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When the writ petitions were taken up for hearing, learned senior counsel appearing for Sri.M.P.Kuberan, the petitioner in WP(C) No.1697/09, submitted that irrespective of all the contentions raised by him, now that as the Government have by Ext.P8 in WP(C) No.20064/09 dated 29/6/09 exempted Sri.M.P.Kuberan from the prescribed age limit of 35, he is entitled to be reinstated in service setting aside the proceedings against him by the T.T.K.Devaswom.

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In so far as T.T.K.Devaswom, the petitioner in WP(C) No.20064/09 is concerned, the contention raised is that subsequent to the resolution passed by it on 12/1/2009 (Ext.P10 in WP(C) No.1697/09), several misconducts committed by Sri.M.P.Kuberan, the Executive Officer, came to its notice and that it was therefore that it passed Ext.P5 resolution and issued Ext.P6 show cause notice in WP(C) No.20064/09. It is contended that before issuing Ext.P8 Government order, it was not issued any notice and that, had it been issued notice, it would have placed

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WPC 1697, 3873 & 20064/09

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these factual matters before the Government and would have persuaded the Government not to pass an order of exemption in favour of Sri.M.P.Kuberan, the Executive Officer and not to impose upon it an undesirable person as the Executive Officer of the temple. It is also their case that a reading of Ext.P8 Government Order of exemption shows that the Government have proceeded on wrong assumption of facts and that no reasons have been given in the order to justify the exemption given in favour of Sri.M.P.Kuberan, the Executive Officer.

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From the facts as stated above, it is therefore evident that what is required to be decided first is the validity of Ext.P8 Government Order, and if Ext.P8 survives challenge at the instance of the T.T.K.Devaswom, the same requires to be implemented, and if so, Sri.M.P.Kuberan, the petitioner in WP(C) No.1697/09, has to be reinstated in service.

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The first question which requires to be considered is whether T.T.K.Devaswom can claim itself to be aggrieved to challenge Ext.P8, the Government order referred to above. On facts, it is to be stated that although going by the Table provided in the Rules regarding the conditions of service of Executive

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WPC 1697, 3873 & 20064/09

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Officers framed under Section 100 of the Act, the age of Executive Officers shall not exceed 35 on the 1^st January of the year of recruitment, the T.T.K.Devaswom issued Ext.P2 notification inviting applications prescribing the upper age limit at 40 years. It was pursuant to this notification that the petitioner in WP(C) No.1697/09 submitted his application and he was selected by the T.T.K.Devaswom. Realising fully that what it did was contrary to the statutory provisions, invoking the power of the Government under the Rules to exempt any person from the provisions of the Rules, the T.T.K.Devaswom represented to the Government. This representation was also recommended by the Malabar Devaswom Board. Although this representation was rejected by the Government as per Ext.P7 in WP(C) No.1697/09, the petitioner therein pursued the matter by filing Ext.P9 again to the Government through the Malabar Devaswom Board which again was recommended by the Malabar Devaswom Board. It is on this representation and making reference to Ext.P8, the representation filed by the T.T.K.Devaswom also, that the Government issued Ext.P8 in WP(C) No.20064/09 granting exemption to the petitioner in WP(C) No.1697/09 for the limited

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WPC 1697, 3873 & 20064/09

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purpose of his appointment as Executive Officer of the T.T.K.Devaswom. In my view, T.T.K.Devaswom having invited applications, made appointment, it having moved for exemption, when exemption has been granted though at the instance of the appointee also, the Devaswom cannot now say that it is aggrieved by the said order and maintain a challenge against the said order of exemption .

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It is now pointed out before me that subsequent to the appointment and before exemption order was issued, the Managing Committee of the T.T.K.Devaswom was reconstituted and that the present Managing Committee does not find any justification for the appointment of the petitioner in WP(C) No.1697/09, who according to the present Managing Committee is an undesirable person on account of the allegations made by it in Ext.P5 show cause notice, in WP(C) No.20064/09. Evidently, the challenge against Ext.P8 raised by the present Managing Committee is not on account of any valid reason, but was only on account of the change of the people, who now constitute the Managing Committee of the T.T.K.Devaswom. Devaswom is a juristic person with continued existence and in so far as decisions

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WPC 1697, 3873 & 20064/09

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taken and appointments made are concerned, changes in the constitution of the Managing Committee or the political or ideological loyalties of the people, are absolutely immaterial. The decisions taken by the Managing Committee or appointments made should remain valid irrespective of changes in the constitution of the Managing Committee. In the context of the changes in the decisions taken by the Government following political changes in the States after general elections, the Supreme Court had occasion to express its distress in its judgment in State of Haryana v. State of Punjab (2002(2) SCC 507), the relevant portion of which reads as under:

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What really bothers us most is the functioning of the political parties, who assume power to do whatever that suits them and whatever would catch the vote bank. They forget for a moment that the Constitution conceives of a Government to be manned by the representatives of the people, who get themselves elected in an election. The decisions taken at the governmental level should not be so easily nullified by a change of Government and by some other political party assuming power, particularly when such a decision affects some other State and the interest of the nation as a whole. It cannot be disputed that so far as the policy is concerned, a political party assuming power is entitled to engraft the political philosophy behind the party, since that must be held to be the will of the people. But in the matter of governance of a State or in the matter of execution of a decision taken by a previous Government, on the basis of a consensus arrived at, which does not involve any political

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WPC 1697, 3873 & 20064/09

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philosophy, the succeeding Government must be held duty-bound to continue and carry on the unfinished job rather than putting a stop to the same.

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Again in the context of termination of Public Prosecutors, the Apex Court in State of U.P. v. Johri Ma l(2004(4) SCC 714), held that the State is not expected to rescind appointments of Public Prosecutors with the change in Government. The matter again engaged the attention of the Apex Court in the judgment in State of Karnataka v. All India Manufacturers Organisation (2006

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(4) SCC 683), para 66 of which reads as under:

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Taking an overall view of the matter, it appears that there could hardly be a dispute that the Project is a mega project which is in the larger public interest of the State of Karnataka and merely because there was a change in the Government, there was no necessity for reviewing all decisions taken by the previous Government, which is what appears to have happened. That such an action cannot be taken every time there is a change of Government has been clearly laid down in State of U.P. v. Johri Mal and in State of Haryana v. State of Punjab where this Court observed thus:

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“In the matter of governance of a State or in the matter of execution of a decision taken by a previous Government, on the basis of a consensus arrived at, which does not involve any political philosophy, the succeeding Government must be held duty-bound to continue and carry on the unfinished job rather than putting a stop to the same.”

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Here also, apart from the fact that there was a change in the Managing committee, no other reason is forthcoming to justify the

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WPC 1697, 3873 & 20064/09

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challenge now raised by the T.T.K.Devaswom against Ext.P8. For that reason, I must conclude that the T.T.K. Devaswom is not an aggrieved party to challenge Ext.P8.

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If that be so, the fact that it was without hearing T.T.K.Devaswom, Ext.P8 order was passed is absolutely inconsequential. It was contended that by Ext.P8, the Government have imposed upon the T.T.K. Devaswom, an undesirable person as its Executive Officer. I am not in a position to accept this contention either. It was the T.T.K.Devaswom which invited applications, it was the T.T.K.Devaswom which selected the person and it was the T.T.K. Devaswom which appointed him and even sought exemption from the age limit prescribed. All that the Government have done is that it has exercised its power to grant exemption and if that be so, it is not open to the T.T.K.Devaswom to contend that the Government have imposed upon it an Executive Officer.

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Yet another contention raised was that facts have been wrongly stated in Ext.P8. True, there is a statement that the Government was acting upon the directions of this Court in the judgment in WP(C) No.1697/09, which was recalled by order

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WPC 1697, 3873 & 20064/09

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dated 23/1/2009 in RP No.104/2009. However, fact remains that at the time of passing the order, the representation filed by the petitioner in WP(C) No.1697/09 was also pending consideration of the Government. If that be so, the mere fact that the Government have referred to the judgment in WP(C) No.1697/09 by itself will not vitiate the order. I am not also impressed by the contention that reasons have not been given in Ext.P8. A reading of Ext.P8 shows that it was acting upon the representations made by the parties, in the light of the recommendations made, that the power of exemption was exercised by the Government.

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On a consideration of the aforesaid contentions raised by the T.T.K.Devaswom in the light of the facts as noticed above, I see no reason to invalidate Ext.P8 Government order dated 29/6/09. However, upholding of Ext.P8 does not mean that the disciplinary authority has to condone misconducts, if any, committed by the Executive Officer, in respect of which show cause was issued and reply was submitted. Such right of the Disciplinary Authority will not in any manner be affected by this judgment.

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Therefore WP(C) No.20064/09 filed by the T.T.K.Devaswom

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will stand dismissed.

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Consequently WP(C) No.1697/09 filed by Sri.M.P.Kuberan will stand disposed of directing that the T.T.K.Devaswom shall implement Ext.P8 Government order referred to above and reinstate the petitioner therein in service forthwith.

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In the light of the view taken in WP(c) Nos.20064/09 and 1697/09, WP(C) No.3873/09 filed by the T.T.K.Devaswom challenging the order of Malabar Devaswom Board declining approval of the temporary appointment made by them to the post of Executive officer will stand dismissed. However, it is clarified that the appointee will be entitled to the benefits which he is otherwise entitled to for the services rendered by him till now.

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ANTONY DOMINIC, JUDGE

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M.P.Kuberan v. Taliparambu Trichambaram Kanjirangad

Case brief

What is this about?

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M.P.Kuberan v. Taliparambu Trichambaram Kanjirangad

Case brief

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