Remanded

M.Padmanabhan Namboothiri v. State of Kerala

Kerala HC29 Nov 2016WP(C)/15349/2014

Case brief

AI extract

What is this about?

Petitioner challenged his rival's appointment as Manager at Madayi Thiruvarkattukavu Bhagavathi Temple and his denial of seniority benefits. The court directed the Commissioner to independently examine service records to resolve disputed dates of appointment, grant status, and assess prior service for grade and pension.

What did the court decide?

Order setting aside previous order directing Executive Officer, directing Commissioner to independently examine service files and decide disputes regarding dates of appointment, grade, and seniority w

M.Padmanabhan Namboothiri Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

¶4

TUESDAY, THE 29TH DAY OF NOVEMBER 2016/8TH AGRAHAYANA, 1938

¶5

WP(C).No. 15349 of 2014 (P)

¶6

PETITIONER(S):

¶7

M.PADMANABHAN NAMBOOTHIRI, MARANGATTILLAM, VILAYAMCODE P.O., WORKING AS VAZHIPADU CLERK, SREE THIRUVARKATTUKAVU BHAGAVATHI TEMPLE, MADAYI, PAZHAYANGADY, KANNUR DISTRICT.

¶8

BY ADVS.SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN

¶9

RESPONDENT(S):

¶10

1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, REVENUE (DEVASWOM) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPRUAM - 695 001 2. THE COMMISSIONER, MALABAR DEVASWOM BOARD, ERANHIPPALAM, KOZHIKODE - 673 006.

¶11

3. EXECUTIVE OFFICER, CHIRAKKAL KOVILAKAM DEVASWOMS, CHIRAKKAL P.O., KANNUR - 670 011.

¶12

4. N. NARAYANAN, MANAGER, THIRUVARKATTUKAVU BHAGAVATHI TEMPLE, MADAYI, PAZHAYANGADY, KANNUR DISTRICT - 670 112. R1 BY GOVERNMENT PLEADER SRI.BIJOY CHANDRAN R2 BY ADV. SRI.K.R.SUNIL, SC, MALABAR DEVASWOM BOARD R3 BY ADV. SRI.MAHESH V. RAMAKRISHNAN R4 BY ADVS. SRI.M.RAMESH CHANDER (SR.) SRI.ANEESH JOSEPH SMT.DENNIS VARGHESE

¶13

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-11-2016 ALONG WITH WPC. 17998/2014, THE COURT ON 29-11-2016, DELIVERED THE FOLLOWING:

¶14

msv/

¶15

WP(C).No. 15349 of 2014 (P)

¶16

APPENDIX

¶17

PETITIONER(S)' EXHIBITS

¶18

EXHIBIT P1 TRUE COPY OF THE ORDER DATED 29-05-1972 ISSUED BY THE DEPUTY COMMISSIONER IN O.A NO 8/71

¶19

EXHIBIT P2 TRUE COPY OF THE ORDER DATED 18-12-1981 IN O.S NO 219/1978

¶20

EXHIBIT P3 THE RELEVANT EXTRACT OF THE SERVICE BOOK OF THE PETITIONER

¶21

EXHIBIT P4 TRUE COPY OF THE GOVERNMENT ORDER AS G.O(MS) 116/09/RD DATED 28-02-2009

¶22

EXHIBIT P5 TRUE COPY OF THE PAY FIXATION ORDER OF THE PETITIONER

¶23

EXHIBIT P6 TRUE COPY OF THE ORDER DATED 30-07-2012 ISSUED BY THE 3RD RESPONDENT

¶24

EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 02-11-2012 IN WPC NO 23422/2012

¶25

EXHIBIT P8 TRUE COPY OF THE ORDER DATED 10-02-2011 ISSUED BY THE IST RESPONDENT RECEIVED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT

¶26

EXHIBIT P9 TRUE COPY OF THE CONSEQUENTIAL ORDER DATED 15-03-2011 ISSUED BY THE 3RD RESPONDENT

¶27

EXHIBIT 10 TRUE COPY OF THE PLEADINGS OF THE 4TH RESPONDENT IN WPC NO 8678/2006

¶28

EXHIBIT P11 TRUE COPY OF THE PAY FIXATION APPROVED BY THE ASSISTANT COMMISSIONER DATED 05-02-1996

¶29

EXHIBIT P12 TRUE COPY OF THE CERTIFICATE DATED 29-09-2010 ISSUED BY THE 3RD RESPONDENT

¶30

EXHIBIT P13 TRUE COPY OF THE REVIEW PETITION DATED 02-10-2013 FILED BY THE PETITIONER BEFORE THE IST RESPONDENT

¶31

EXHIBIT P14 TRUE COPY OF THE ORDER DATED 11-07-2013

¶32

EXHIBIT P15 TRUE COPY OF THE REVISION PETITION DATED 05-12-2013

msv/

-2-

-2-

WP(C).No. 15349 of 2014 (P)

¶37

EXHIBIT P16 TRUE COPY OF THE JUDGMENT DATED 13-12-2013 IN WPC NO 30827/2013

¶38

EXHIBIT P17 TRUE COPY OF THE GAZETTE DATED 25-03-2014

¶39

EXHIBIT P18 TRUE COPY OF THE JUDGMENT DATED 21-03-2014 IN WA NO 1302/2013

¶40

EXHIBIT P19 TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE 4TH RESPONDENT ON 05-06-2014

¶41

EXHIBIT P20 TRUE COPY OF THE ADDITIONAL ARGUMENT NOTES ON 07-06-2014 FILED ON BEHALF OF THE PETITIONER

¶42

EXHIBIT P21 TRUE COPY OF THE APPOINTMENT ORDER DATED 07-06-2014 ISSUED BY THE 3RD RESPONDENT

¶43

EXHIBIT P22 TRUE COPY OF THE REPLY DATED 02-07-2012 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT

¶44

EXHIBIT P23 TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT

¶45

RESPONDENT(S)' EXHIBITS

¶46

EXT.R3(a): TRUE COPY OF THE LETTER OF RESIGNATION DTD.6.7.1999 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

¶47

EXT.R3(b): TRUE COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK THE PETITIONER.

¶48

EXT.R3(c): TRUE COPY OF THE ORDER G.O.(RT) NO.2883/2014 DTD.24.6.2014.

//TRUE COPY//

P.S.TO JUDGE

msv/

ANU SIVARAMAN, J.

¶53

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

¶54

W.P.(C).Nos.15349 & 17998 of 2014

¶55

= = = = = = = = == = = = = = = = = = = = = = = = = = = = = = Dated this the 29^th day of November, 2016

¶56

JUDGMENT

¶57

1.These writ petitions are filed by a Vazhipadu clerk working in the Thiruvarkattukavu Bhagavathi Temple, Madayi, Pazhayangady, Kannur.

¶58

2.W.P.(C).No.15349 of 2014 challenges Exhibit P21 order of the 3^rd respondent promoting the 4^th respondent as Manager of the temple.

¶59

3.W.P.(C).No.17998 of 2014 is filed challenging Exhibits P6, P7, P8 and P13 and P18 orders as also seeking directions to count the petitioner's service from 01.11.1984 for fixation of pay and for promotion. Since W.P.(C).No.15349 of 2014 contains more substantive pleadings, the documents and parties are being referred to as arrayed in the said writ petition.

¶60

4.The facts of the case are as follows:-

¶61

The petitioner was initially appointed as Shanthi in the

¶62

W.P.(C).Nos.15349 & 17998/14

¶63

¶64

Muzhipilangad Bhagavathi Temple on 30.10.1984. He joined duty on 01.11.1984 and was later transferred to the Chovva Shiva Temple by order 06.05.1995. He was appointed as Vazhipadu clerk at Annapoornasewari temple, Cherukunnam by order dated 15.07.1999 and at the Madayi Thiruvarkattukavu Bhagavathi Temple from 06.07.2006. The contention of the petitioner is that the temples where he had worked are a part of a group of 38 temples called the Chirakkal Kovilakam temples for which a common scheme is framed. Since all the temples function under a common scheme with a common hereditary trustee, employees were being freely transferred from one temple to another without any loss of seniority. Petitioner's initial service from 01.11.1984 as 'Shanthi' was liable to be counted for all purposes, it is contended. However, while giving the petitioner the benefits of pay revision orders, only his service from 16.07.1999 was taken into account by the Executive Officer. Later, while the post of Manager of the Madayi Thiruvarkattukavu Bhagavathi Temple became vacant, the

¶65

¶66

W.P.(C).Nos.15349 & 17998/14

¶67

petitioner raised claim for appointment to the said post. However, ignoring his claim, the 4^th respondent was appointed by the Executive Officer. These are his grievances.

¶68

5.Heard Sri.Julian Xavier, learned counsel for the petitioner, Sri.Bejoy Chandran, learned Government Pleader, Sri.K.R.Sunil learned standing counsel appearing for the 2^nd respondent, Sri.Mahesh V.Ramakrishnan, learned counsel appearing for the 3^rd respondent and Sri.Ramesh Chander, learned Senior Counsel appearing for the 4^th respondent.

¶69

6.The petitioner contends that the 4^th respondent had specifically contended on affidavit before this Court in W.P.(C).No.8678 of 2006 that he was appointed on compassionate grounds in the Madayi Thiruvarkattukavu Bhagavathi Temple as Vazhipadu clerk on 01.09.1999. The said writ petition is produced as Exhibit P10. It is further contended that even if the petitioner's date of entry into service is reckoned as 16.07.1999 the petitioner would be senior to the 4^th

¶70

W.P.(C).Nos.15349 & 17998/14

¶71

¶72

respondent, who on his own showing, was appointed as Vazhipadu clerk for the first time in Madayi Thiruvarakattukavu Bhagavathi Temple on 15.07.1999. Therefore Exhibit P21 order of the 3^rd respondent appointing the 4^th respondent as Manager in the post which fell vacant is 2008 was illegal and unsustainable. It is stated that the entry contained in Exhibit P5 salary schedule wherein the 4^th respondent's date of entry is shown as 01.12.1995 is a clear mistake and no reliance can be placed on the same. Learned counsel for the petitioner also contends that the entry contained in Exhibit R3(b) service book produced by the Executive Officer at page 12, recording that his prior service as Shanthi will not be counted for future appointment, has been subsequently interpolated by the Executive Officer for the purpose of this case. It is stated that page 11 of the service book showing previous qualifying service clearly contains the period from 01.11.1984 to 06.05.1995 as Shanthi at Muzhipillangad Bhagavathi temple and from 06.05.1995 to 15.07.1999 in the Chovva Siva Temple, apart from the period

¶73

W.P.(C).Nos.15349 & 17998/14

¶74

¶75

from 16.07.1999 onwards at Annapoornaswary Temple, Cherukunnam and from 6.7.2006 at Madayikavu temple.

¶76

In pursuance to an interim order dated 5.10.2016, directing the Executive Officer to produce the appointment order of the 4^th respondent as well as the orders accepting the resignation of the petitioner, the 3^rd respondent filed a further affidavit in W.P.(C).No.17998 of 2014 contending that such order of appointment in respect of the 4^th respondent is not available. It is stated that the 4^th respondent is appointed on 1.12.1995. The service book of the 4^th respondent is produced as Exhibit R3(g) and an order granting him 10 years higher grade is produced as Exhibit R3(h). The resignation letter submitted by the petitioner and the order dated 15.07.1999 appointing the petitioner as Vazhipadu Clerk are also produced. It is contended that the contention raised by the 4^th respondent in earlier proceedings with regard to his date of appointment can only be a mistake and that the 4^th respondent had been in service in the Madayikavu temple from December, 1995 onwards.

W.P.(C).Nos.15349

& 17998/14

8.The 4^th respondent had filed a counter affidavit In W.P.(C). No.17998 of 2014 contending as follows:-

¶81

“This respondent was working as a Vazhipadu Clerk of Shree Madai Thiruvarattukavu Temple (hereinafter referred to as temple for short) since 01.12.1995. His father Krishnan Pidarar had been working in the temple as Vazhipadu Clerk since years back and since she was bedridden the 4^th respondent herein who got sufficient qualifications was appointed as Vazhipadu Clerk by the temple authorities, considering the sympathetic conditions of the family. The respondent's father died on 27.02.1998. This respondent was appointed as Vazhipadu Clerk on 10.03.1998. The Assistant Commissioner of Devaswom as per his order dated 01.01.2007 approved the appointment and ordered this respondent's name to be included in the name in the schedule. Thereafter the respondent's service was regularised and his name included in the schedule from 01.12.1995. In the schedule itself this respondent's appointment date has correctly recorded as 01.12.1995 and writ petitioner's day of joining shown as 16.07.1999 and that too in Cherukunnu Annapoornasewary temple.”

¶82

9.It is further contended that the question of considering seniority of employees in other temples stood concluded by

¶83

W.P.(C).Nos.15349 & 17998/14

¶84

¶85

Exhibit R4(b) judgment of this Court and the petitioner's claim is unsustainable because his service prior to 16.07.1999 was in other temples and the same cannot be taken into account for seniority and appointment in respect of the post of Manager in Madayikavu temple which is to be filled up considering the length of service in the said temple alone. It is contended that Exhibit R4(b) judgment was set aside by the Division Bench for the limited purpose of considering the sustainability of the amendment sought to be made in the Scheme for management of the Chirakkal Kovilakam temples. In the above circumstances, it is contended that the claim of the 4^th respondent which has been upheld by the Executive Officer and all statutory authorities including the Government cannot be disturbed at this distance of time by this Court exercising its jurisdiction under Article 226 of the Constitution of India. It is contended that since the questions raised by the petitioner are clearly in the realm of disputed questions of fact, in the absence of any sustainable objection to the manner of exercise of jurisdiction by the statutory authorities, there

¶86

W.P.(C).Nos.15349 & 17998/14

¶87

¶88

can be no adjudication on such facts and the orders passed by the authorities are liable to be upheld.

¶89

10.I have considered the contentions advanced on all sides. It appears from the consideration of pleadings and the materials on record that the appointment of the petitioner on 15.07.1977 as Vazhipadu Clerk was in a post which was available in the Madayi Thiruvarkattukavu Bhagavathi Temple. It is contended that the Chirakkal Kovilakam temples is a group of 38 temples governed by a common Scheme, his earlier service as Shanthi was liable to be counted as qualifying service for all purposes. It is clear from the pleadings and the documents produced by the different parties in this writ petition that the trustees as well as the erstwhile the HR & CE Department were considering the group of temples as a common entity at least for the limited purpose of reckoning the seniority of employees of the group of temples. However, this Court considering the specific contentions raised as regards the reckoning of seniority for the purpose of promotion to the post of Manager

¶90

W.P.(C).Nos.15349 & 17998/14

¶91

¶92

held that seniority is to be reckoned treating the temples as separate units. In the above circumstances, all that is to be considered for deciding the claim for appointment as Manager is as to who among the petitioner and the 4^th respondent has more length of service in the Madayi Thiruvarkattukavu Bhagavathi Temple. Therefore, even without going into the disputed questions as to whether the petitioner would be entitled to claim seniority with effect from any earlier date when he had worked in other temples under the Devaswom, I am of the opinion that the issue now raised with regard to claim for appointment as Manager in this writ petition can be resolved by considering the respective claims of the respondents on the strength of the pleadings with regard to their date of appointment in the temple in question, i.e., Madayi Thiruvarkattukavu Bhagavathi Temple.

¶93

11.The 4^th respondent now claims that his date of appointment was 01.01.1995. No appointment orders have been produced either by the 4^th respondent or the Executive Officer. In the

¶94

W.P.(C).Nos.15349 & 17998/14

¶95

¶96

above view of the matter, I am of the opinion that the contentions raised by the Executive Officer that the 4^th respondent was appointed on 01.12.1995 and had continuous service in the temple since then cannot be accepted without question, especially in view of the repeated pleadings of the 4^th respondent himself in other proceedings before this Court that he had been granted compassionate appointment on the death of his father on 10.03.1998. The acceptance of the said contention without demur by the Government was erroneous since this aspect was specifically pointed out by the petitioner. However, since this is a disputed question of fact, I am of the opinion that it may not be possible for this Court to look into the documents produced and decide the question in these proceedings.

¶97

12.The Commissioner, Malabar Devaswom Board is an authority invested with wide powers under the Madras Hindu Religious and Charitable Endowments Act, 1951 to supervise and control the administration of all religious endowments. He is also invested with the power to pass necessary orders to

¶98

W.P.(C).Nos.15349 & 17998/14

¶99

¶100

ensure that such endowments are properly administered. The nature of this power is wider and more pervasive than the power of revision vested in the Government under Section 99 of the Act. In exercise of the discretionary jurisdiction of this Court under Article 226 of the Constitution of India, I am of the considered opinion that the questions raised herein require to be considered by the 2^nd respondent in detail.

¶101

13.I, therefore, direct the Commissioner, Malabar Devaswom

¶102

Board to independently look into the service book of the petitioner as well as the 4^th respondent and the salary schedules and all other relevant files relating to appointments made in the Madayi Thiruvarkattukavu Bhagavathi Temple and to resolve the issue as to the actual date of appointment of the 4^th respondent in the said temple. To enable such consideration, Exhibit P18 order (in W.P.(C).No.17998/2014) of the 1^st respondent is set aside. The continuance of the 4^th respondent as Manager in the temple will be subject to final orders to be passed by the Commissioner as directed above.

¶103

¶104

W.P.(C).Nos.15349 & 17998/14

¶105

14.The Commissioner, 2^nd respondent shall also consider the claim raised by the petitioner that he is entitled to grant of higher grade considering his earlier service as Shanthi also and that illegal insertions have been made in his service book by the 3^rd respondent to deny such claims. While considering this aspect of the matter, the Commissioner shall consider the manner in which prior service of employees in other temples in the group is treated for the purpose of grant of grade. The Commissioner, 2^nd respondent shall consider such questions with reference to all relevant documents which can be inspected by him, after putting the parties on notice. Final orders as directed above in the matters of treating the prior service of the petitioner for grade and pension as also regarding the inter se seniority of the petitioner and the 4^th respondent shall be passed by the Commissioner after hearing the parties concerned within a period of three months from the date of receipt of a copy of this judgment. It is made clear that the Executive Officer shall produce all materials required

¶106

W.P.(C).Nos.15349 & 17998/14

¶107

¶108

by the Commissioner for proper adjudication of the questions referred to him within two weeks of his being put on notice.

¶109

The writ petition is disposed of. Status quo as on today shall be maintained till the matter is disposed of as directed above.

¶110

sd/- Anu Sivaraman, Judge

¶111

M.Padmanabhan Namboothiri v. State of Kerala

Case brief

What is this about?

What did the court decide?

M.Padmanabhan Namboothiri v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

C.H.Pravin Kumar & Others Vs the Cmid, Bharat Petroleum Corpn. Ltd.

Swapna Jacob Vs Management St.Mary'S High School & Other

Shaji.B Vs the Kerala State Financial Enterprises Ltd., Rep.by Its Managing Director

Smt. Valsa Thattil Vs the Manager

T.Ayissu Vs the State of Kerala

P.Sarathkumar Vs the Tdb