Allowed

Ravindran.M v. the State of Kerala and Others

Kerala HC7 Oct 2016WP(C)/19901/2009

Case brief

AI extract

What is this about?

The Court disposed of a writ petition challenging a Government order that restored another respondent's appointment as Vazhipadu Clerk and reduced the petitioner to an Attender role. The Court held that absence of appointment order by the Trustee invalidates the complainants' claims and allowed the petitioner to work as Vazhipadu Assistant/ Clerk from the date of the other respondent's retirement

What did the court decide?

Petitioner shall be allowed to work as Vazhipad Assistant or Vazhipad Clerk with effect from the date succeeding the date of retirement of the 4th respondent.

Ravindran.M Vs the State of Kerala and Others — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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FRIDAY, THE 7TH DAY OF OCTOBER 2016/15TH ASWINA, 1938

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WP(C).No. 19901 of 2009 (G)

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PETITIONER(S):

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RAVINDRAN. M.,S/O. SANKARAN, AGED 52 YEARS, RESMI VILLA, PARAYANKANDY, AZHINHILAM POST, FAROOK COLLEGE VIA., MALAPPURAM DISTRICT, (WORKED AS VAZHIPADU ASSISTANT, KARUMAKANKAVE TEMPLE, P.O. AZHINHILAM,, PIN-673 654, MALAPPURAM DISTRICT).

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BY ADVS.SRI.K.P.SUDHEER, SMT.P.JAYALAKSHMI.

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RESPONDENT(S):

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1. THE STATE OF KERALA, REPRESENTED BY JOINT SECRETARY TO GOVT., REVENUE, (DEVASWOMS) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.

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2. THE ASSISTANT COMMISSIONER, HINDU RELIGIOUS & CHARITABLE ENDOWMENT (ADMINISTRATION) DEPARTMENT, KOZHIKODE.

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3. KARUMAKANKAVE TEMPLE TRUSTEE BOARD, KARUMAKANKAVE, REPRESENTED BY ITS CHAIRMAN, P.O. AZHINHILAM, PIN-673 654,, MALAPPURAM DISTRICT.

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4. SATHYA. M., W/O. AYYAPPAN, THAZHATHEYIL HOUSE, FAROOK COLLEGE POST, KOZHIKODE-673 632.

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R1 BY SR. GOVT. PLEADER SRI.SANTHOSH PETER. R2 BY ADV. SRI.MAHESH V.RAMAKRISHNAN, SC. R3 BY ADV. SRI.KILLIYOOR P.GOPALAKRISHNAN NAIR. R4 BY ADV. SRI.R.T.PRADEEP.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 19901 of 2009 (G)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P1 COPY OF THE CERTIFICATE DATED 20/04/2009 ISSUED BY CHILD DEVELOPMENT PROJECT OFFICER, KONDOTTY.

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EXT.P2 COPY OF THE ORDER NO.A2-2416/05 DATED 27/09/2007 ISSUED BY THE 2ND RESPONDENT.

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EXT.P3 COPY OF THE LETTER DATED 30/03/2008 ISSUED BY THE 3RD RESPONDENT.

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EXT.P4 COPY OF THE GO(RT) NO.977/2008/RD DATED 17/03/2008 ISSUED BY GOVT. OF KERALA, REVENUE (DEVASWOMS) DEPARTMENT.

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EXT.P5 COPY OF THE JUDGMENT DATED 13/10/2008 IN WP(C).NO.12529/2008 PASSED BY THIS HONOURABLE COURT.

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EXT.P6 COPY OF THE G.O.(RT) NO.1375/2009/RD DATED 29/04/2009 ISSUED BY GOVT. OF KERALA, REVENUE (DEVASWOMS) DEPARTMENT.

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EXT.P7 COPY OF THE CERTIFICATE OF THE PETITIONER IN X STANDARD EQUIVALENCY 'O' LEVEL CERTIFICATE EXAMINATION.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

P.V.ASHA J.

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W.P.(C) No.19901 of 2009

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---------------------------------------------

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Dated this the 30^th day of September, 2016

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J U D G M E N T

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Ext.P6 order of Government restoring the appointment of 4^th respondent as Vazhipadu Clerk and that of petitioner as Attender is under challenge by the petitioner.

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The petitioner had been working as a Mike Operator in the Karumakankave Temple under the 3^rd respondent which is under the jurisdiction of the Malabar Devasom Board. The 4^th respondent was working under the 3^rd respondent as Full Time Sweeper. A vacancy in the post of Vazhipadu Clerk arose under the 3^rd respondent. Petitioner has stated that one Manoj Kumar was appointed in that post in the year 2005 and based on objection raised by him, the Commissioner of HR & CE directed the Trustee Board to issue a notification for selection to that post. According to the petitioner, thereafter he was appointed as per Ext.P2 order dated 27.09.2007 converting the post of Vazhipadu Clerk as Vazhipadu Assistant. Ext.P2 order says that the petitioner has been appointed considering his long service rendered in the Temple and since the post of Vazhipadu Assistant is not available in (C) grade Temples, petitioner would be paid salary admissible to the post of Kazhakam. The 4^th respondent objected to this appointment and thereafter,

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W.P.(C) No.19901 of 2009

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Government issued Ext.P4 order, in which it was found that abolition of the post of Vazhipadu Clerk and appointment of the petitioner as Vazhipadu Assistant as per Ext.P2 order was illegal. Simultaneously, Government restored the order of the Trustee Board appointing the 4^th respondent as Vazhipadu Clerk and petitioner as Attender-cum-Watchman. In Ext.P4 Government found that the appointment of the petitioner was on account of favouritism. It was also observed that the petitioner as well as the 4^th respondent were working in the Temple for 20 years; the 4^th respondent had passed SSLC whereas the petitioner had passed only upto Standard VIII. Government also found that the Commissioner had cancelled the post of Vazhipadu Clerk and crated the post of Vazhipadu Assistant in that place, at the time when the appointment was forwarded for approval of the Commissioner, in order to help the petitioner who was under qualified.

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Ext.P4 order is seen to have been passed on the basis of the judgment dated 18.12.2007 in W.P.(C).No.37492 of 2007 filed by the 4^th respondent. Since the order Ext.P4 was issued without notice to the petitioner, the petitioner approached this Court in W.P.(C).No.12529 of 2008 when Ext.P4 order was set aside and Government was directed to pass fresh orders after hearing the petitioner and the 4^th

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W.P.(C) No.19901 of 2009

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respondent. Thereafter, Government passed Ext.P6 order. In Ext.P6 order, Government again found that the appointment of the petitioner was vitiated by favouritism. Even though, petitioner had pointed out that he had been working in the Temple for 20 years as Mike Operator simultaneously attending the clerical work and he had passed O' Level Certificate Examination conducted by the Kerala State Mission Authority, during 2005, the Government found that the 4^th respondent who had passed SSLC in the year 1967 and was working as Sweeper in the Temple for the past twenty years was the rightful claimant. It was also found that the O' Level certificate Examination conducted by the Kerala State Mission Authority is not equal to SSLC pass certificate and that the 4^th respondent had passed SSLC examination after regular studies. Accordingly, Government directed to restore the appointment of 4^th respondent as Vazhipadu Clerk and that of petitioner as Attender-cum-Watchman, as ordered by the Trustee Board, on the basis of the qualifications.

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Petitioner challenges Ext.P6 order, on the ground that he is having the requisite qualification i.e., O' Level certificate Examination, which is equivalent to SSLC. It is also his case that the 4^th respondent had been working as Anganwadi Worker during the period from 1999 to 2004,

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W.P.(C) No.19901 of 2009

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relying on Ext.P1 certificate, according to which one Smt.T.Sathyavathy having residential address as that of the 4^th respondent, had worked as Anganwadi Worker during the period from 13.03.1999 to 12.07.2004 for a total period of 1014 days. Further contention of the petitioner is that the 4^th respondent does not have 20 years of service as found by the Government. Petitioner also submits that he was fully qualified for appointment as Vazhipadu Clerk as well as Vazhipadu Assistant.

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The second respondent has filed a counter affidavit stating that the petitioner was working as Mike Operator and while working as Mike Operator, he was issuing Vazhipadu receipts and it was found that it would be beneficial for Devasom to allow him to work as Vazhipadu Assistant, than appointing him as Vazhipadu Clerk, considering his experience in the post for about 20 years.

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Respondents 3 and 4 have not filed any counter

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affidavit.

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The learned Standing Counsel for respondents 1 and 2, referring to the rules framed under Section 102(y) of the Madras Hindu Religious and Charitable Endowments Act, 1951, pointed out that under Rule 12 of the Rules the Area Committee, with the previous approval of the Commissioner,

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W.P.(C) No.19901 of 2009

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may by special order lay down what office of non-hereditary out door servants shall be filled in by educationally qualified persons and what the qualifications should be and after fixing the same no person without having such qualification shall be appointed to that post. However rule 13 provides for exemption with previous approval by Commissioner on recommendation by Trustee or area committee. Rules 12 and 13 read as follows:

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“12. The Area Committee in respect of the institutions under its jurisdiction and with the previous approval of the Commissioner and the Commissioner in respect of other institutions may by special order lay down what office of non-hereditary out door servants shall be filled in by educationally qualified persons and what the qualifications shall be and when such special order is made, no person who does not possess the qualifications so specified shall be appointed to a post included in the order.

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On the recommendation of the trustee of a religious institution, the Area Committee in respect of institutions under its jurisdiction and with the previous approval of the Commissioner and the Commissioner in respect of other institutions, may exempt any person from the operation of these rules.”

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From the orders produced by the petitioner, it

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appears that the Trustee appointed the petitioner as Attender

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and 4^th respondent as Vazhipad Clerk. It is by Ext.P2 that

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W.P.(C) No.19901 of 2009

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petitioner is seen appointed as Vazhipad Assistant. Petitioner or respondents have not stated whether the staff pattern in the Temple is fixed or whether there was any recommendation from the area committee or request from the Temple to convert the post in the Temple. At any rate, as rightly pointed out by the learned Counsel for the 4^th respondent, it is the Assistant Commissioner who is seen to have appointed the petitioner as Vazhipad Assistant. Therefore even assuming that the posts can be converted and qualification can be relaxed, in the absence of an order of appointment by the Trustee Board, the Commissioner or the Assistant Commissioner could not have approved the appointment or could not have made an appointment by themselves and approved their own order of appointment.

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However, it is seen that the 4^th respondent was aged 59, at the time of passing Ext.P6 order. It is seen that the petitioner has passed O' Level certificate Examination conducted by the Kerala State Literacy Mission Authority, as can be seen from Ext.P7, after appearing in the examination of December, 2005. The Kerala State Literacy Mission Authority has issued a certificate to him to the effect that it is equivalent to X Standard. 'X Standard Equivalency O' Level Certificate'. This certificate also certifies that the candidate had appeared

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W.P.(C) No.19901 of 2009 7

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in the X Standard equivalency O' Level Examination.

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It appears that there is no dispute over the qualification of petitioner for appointment as Vazhipad Assistant. However the contentions raised by the petitioner in the writ petition that he was the person entitled to be appointed to the post; 4^th respondent did not have the experience as found by the Government, with support of Ext.P1; his O' level certificate is equivalent to the prescribed qualification, etc., are not controverted by either the third or the 4^th respondents. The learned Counsel for the petitioner submits that O' level certificate is recognized by Public Service Commission as equivalent to SSLC (though no material is produced). At any rate the weightage given by the Government to the 4^th respondent on the basis of her passing the SSLC in the year 1967, cannot be accepted. Qualification cannot have any superiority on the ground of year of passing the examination. Qualification is to be reckoned as on the date of occurrence of vacancy. None of the parties have furnished any definite date on which the vacancy arose.

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However, it is seen that the 4^th respondent retired from service in the year 2013, while working as Vazhipad Clerk and she is drawing pension based on her appointment by the Trustee and approved by Government as per the impugned

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W.P.(C) No.19901 of 2009

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order.

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In these circumstances, I do not find it necessary to go into the eligibility of the 4^th respondent, particularly in the absence of an order of appointment in favour of the petitioner either as Vazhipad Assistant or Vazhipad Assistant, by the appointing authority.

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Even assuming that the O' level examination passed by petitioner is not recognized as equivalent to SSLC, the provisions contained in Rule 12 of the Rules framed under Madras Hindu Religious and Charitable Endowments Act provides for granting exemption from educational qualification and confers authority on Commissioner to decide the post which is required for the temple and the Commissioner has already decided to have the post of Vazhipad Assistant for the temple. Therefore petitioner shall be allowed to work as Vazhipad Assistant or Vazhipad Clerk as the case may be, with effect from the date succeeding the date of retirement of the 4^th respondent. The respondents 1 to 3 shall take appropriate action for the same, in case no such orders are issued so far.

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The writ petition is disposed of accordingly.

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Sd/- P.V.ASHA, JUDGE.

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Ravindran.M v. the State of Kerala and Others

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Ravindran.M v. the State of Kerala and Others

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