Partly allowed

Sree Thricherumanna Alias Kottiyoor Devaswom v. State of Kerala

Kerala HC17 Aug 2017WP(C)/37493/2016

Case brief

AI extract

What is this about?

The High Court addressed the petitioner's grievance regarding delayed regularization of temple employees. While noting recruitment irregularities and lack of clarity in submitted schedules, the Court directed fresh notification for specific essential posts and set a timeline for completing recruitment with transparency.

What did the court decide?

Petitioner to recruit four L.D.Clerks/Vazhipadu Clerks, one Driver, one Cook, one Assistant Cook, and four Watchmen via fresh public notification within five months.

Sree Thricherumanna Alias Kottiyoor Devaswom Vs… — Municipal and Town Planning | Kerala HC (2017)

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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 P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V.

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THURSDAY, THE 17TH DAY OF AUGUST 2017/26TH SRAVANA, 1939 WP(C).No. 37493 of 2016 (J) ----------------------------

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PETITIONER:

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SREE THRICHERUMANNA ALIAS KOTTIYOOR DEVASWOM P.O.KOTTIYOOR, KANNUR DIST-670651, REPRESENTED BY ITS CHAIRMAN.

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BY ADVS.SRI.V.V.ASOKAN (SR.) SMT.SATHYA SHREEPRIYA SRI.K.LAKSHMINARAYANAN

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RESPONDENTS:

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1. STATE OF KERALA REVENUE (DEVASWOM) DEPARTMENT, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. MALABAR DEVASWOM BOARD, ERANJIPALAM, KOZHIKODE, PIN-673006, REPRESENTED BY ITS PRESIDENT. 3. THE COMMISSIONER MALABAR DEVASWOM BOARD, ERANJIPALAM,, KOZHIKODE, PIN673006.

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R2-R3 BY ADV. SRI.K.R.SUNIL, SC, MALABAR DEVASWOM BOARD RADDL BY ADV. SRI.SANTHEEP ANKARATH R BY GOVERNMENT PLEADER SRI PAUL ABRAHAM VAKKANAL

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-07-2017, THE COURT ON 17.8.2017 DELIVERED THE FOLLOWING:

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WP(C).No. 37493 of 2016 (J)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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----------------------EXHIBIT P1- A TRUE COPY OF THE JUDGMENT DATED 06/04/1994 IN MFA 74/88 CONTAINING THE SCHEME.

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EXHIBIT P2- A TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT DATED 18/10/14.

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EXHIBIT P3- A TRUE COPY OF THE RELEVANT PAGES OF THE PROCEEDINGS NO.J4-7990/2014 MDB DATED 30/01/2015.

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EXHIBITI P4- A TRUE COPY OF THE COVERING LETTER DATED 06/08/2016 ALONG WITH THE SCHEDULE OF EMPLOYEES SUBMITTED BY THE PETITIONER TYO THE 3RD RESPONDENT.

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EX.P5: TRUE COPY OF THE ORDER DT. 6.10.2010 IN WP( C)29718/10 ON THE FILE OF THIS COURT.

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EX.P6: TRUE COPY OF THE ADVERTISEMENT IN MANORAMA DAILY DATED 20.11.2013.

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EXT.P7: COPY OF THE SAID PROCEEDINGS NO. J. 7.8494/2010/MDB DATED 28.9.2010 ON THE FILE OF 3RD RESPONDENT.

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EXT.P8: COPY OF THE RANK LIST DATED 3.2.2014 PREPAED BY THE PETITIONER/DEVASWOM.

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EXT. P9: COPY OF THE RLEVANT PAGES FROM THE MINUTES BOOK MAINTAINED BY THE 2ND RESPONDENT. EXT.P10: COPY OF THE REPORT SUBMITTED BY ADVOCATE CHANDRASEKHARAN NAIR. EXT.P11: COPY OF THE TERM REPORT SUBMITTED BY AJAY KUMAR DT. 24.12.2006.

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EXT.P12. COPY OF THE CUT NOTICE NO. H7 5399/2016/MDB DATED 18.2.2016 ON THE FILE OF THE 2ND RESPONDENT.

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EXT.P13 COPY OF REPORT OF THE COMMITTEE HEADED BY MR. A.S. AJAYKUMAR 24.12.2016.

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EXT.P14: COPY OF THE DECISION TAKEN BY THE 2ND RESPONDENT DT. 14.3.2017

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RESPONDENT(S)' EXHIBITS ----------------------NIL

KS.

TRUE COPY

P.S. TO JUDGE

P.R. RAMACHANDRA MENON & SHIRCY V.,JJ.

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

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W.P.(C)No. 37493 of 2016

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

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Dated this the 17^th day of August, 2017

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JUDGMENT

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Shircy V., J.

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The grievance projected by the petitioner / Board of Trustees (hereinafter referred to as the 'Devaswom') in administration of Tricherumanna alias Kottiyoor Mahakshethra, is in respect of the alleged wantonness and unnecessary delay on the part of the 3^rd respondent, the Commissioner of Malabar Devaswom Board (for short 'Board') in not regularizing/ approving the selection of employees to the Temple causing great hardship and inconvenience to the devotees as well adversely affecting the developmental activities of the Temple.

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Kottiyoor Mahakshethra is one of the Ancient Temples

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of Kerala revered by the devotees all over Kerala. The affairs of the Temple are governed by a scheme framed in MFA No. 74/1988 of this Court. Pursuant to the judgment, the Board of Trustees was also constituted to manage the affairs of the Temple. The festival of the Temple commences from the month of Edavam (June/July). Lakhs of devotees offer prayers during the festival season. At Akkara Kottiyoor, so many arrangements including erection of temporary sheds as part of rituals and custom have to be completed to offer prayers as entry is permitted only during the festival season. As per Clause 18 of the Scheme, the Chairman shall appoint the servants of the Temple with approval of the Board of Trustees. The proposal for appointment of six existing vacancies and new five posts was forwarded on 15.09.2014 to the 3^rd respondent/ Board for necessary approval. On 30.11.2015, the Board directed the Executive Officer of the Devaswom to submit a revised schedule of the employees for regularization and the direction was

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complied with, but the list was not approved and returned so as to finalize the proceedings. This is the version of the

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Devaswom. Hence, this petition with the following prayers:

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“ A) issue a writ of mandamus or any other writ, order or direction commanding the 3^rd respondent to pass orders in respect of the approval/regularization of employees as per the schedule shown in Ext.P4 within a time frame as may be fixed by this Honourable court,

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B) issue any other writ, order or direction in the facts and circumstances of the case.

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C) issue such other order as to costs.”

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The 3^rd respondent/Board filed a statement

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contending that the administration of the Temple is subject to the provisions of Hindu Religious & Charitable Endowments Act, (hereinafter referred to as 'the Act') though there is a scheme for administration of the Temple. The Temple being a special grade one, the employees are better paid with scale of pay admissible to the designated

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post. Since the administration is vested with the Board of

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Trustees, the persons appointed even on daily wages are permitted to continue with the intention to get them regularized. In W.P.(C) No. 4450/2005, this court directed the Trustees to make appointments following fair procedure for selection and if any post is to be created, prior approval of the Commissioner is required. Subsequently in WP(C) No. 3728/2014 it was held that the Board cannot insist to obtain approval for appointments but Trustees shall follow Rule 9 framed under Section 100(2) Y of the Act. In fact, 13 additional appointments made by the Devaswom were found illegal by the Board as the appointments were towards non-sanctioned posts. As per Decision No. 65 of the Board , a Board Member was entrusted to submit a report with respect to the approval of new posts and a report was submitted recommending approval of posts except the post of Lasker. Meanwhile, the Deputy Superintendent of Police, Vigilance, Kannur has forwarded a complaint received alleging that the appointments made

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towards 11 posts are illegal and prior sanction was not obtained for creation of the posts and the appointments involved receipt of bribe. Pursuant to the complaint, on an enquiry through Assistant Commissioner, it was revealed that the Trustees had made appointments at their own whims and fancies without assessing the actual necessity. Thereafter, a Special Team had been constituted under the leadership of one Ajayakumar, Junior Superintendent of the Malabar Devaswom Board for detailed enquiry. Appropriate steps for regularizing the appointment will be taken on receipt of the report, is the stand taken by the respondents/ Board.

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In the reply affidavit, the Devaswom refuted the allegations and contended that the recruitment was made after advertisement and written test. The Rank list was also prepared in a fair and transparent manner.

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We heard the learned counsel for the

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petitioner/Devaswom and the learned counsel for

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respondents/Board.

The Devaswom is represented by the Chairman of

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Board of Trustees. Admittedly, the affairs of Kottiyoor Mahakshethra, is governed by a scheme framed by the Madras High Court in W.A. No. 117 of 1954. In MFA No. 74/1988 this Court has adopted a new scheme as per an order dated 6.4.1994. The Scheme is “Sri Tricherumanna alias Kottiyoor Devaswom Scheme, 1994”. The relevant Provisions of the Scheme are reiterated for easy reference.

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2.(d) “Devaswom” means the main Kottiyoor Temple and includes its properties and endowments and the subsidiary shrines/temples attached to the main temple.

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2 (g) “Temple” means Sri. Tricherumanna alias Kottiyoor Temple at Kottiyoor, Kottiyoor Village, Thalassery Taluk, Kannur District commonly known as Akkara Temple and the six subsidiary shrines/temples namely: (1) Ikkara Kottiyoor Temple in Kannur District (2) Sree Kunden Vishnu Temple in Kannur Dt. (3) Sree Puzhakkal Matapura Temple in Kannur Dt. (4) Sree Jathiyoor Siva Temple, Calicut Dt. (5) Sree Maruthonkara Siva Temple, Calicut Dt. and (6) Sree

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Raja Rajeswari Temple, Wynad District.

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(i) The administration, control and management of the Devaswom shall be vested in the Board of Trustees constituted in the manner hereinafter provided and says as herein provided, the provisions of the Act and the Rules shall apply to the administration, control and management of the “Devaswom” and the “Temple”.

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(ii) The Board of Trustees shall by the name of “Sree Tricherumanna alias Kottiyoor Devaswom Board of Trustees” be a body corporate and shall have perpetual succession and a common seal and shall by the said name sue or be sued through the Chairman. The Board of Trustees may also authorise the Executive Officer to represent the Devaswom and the temple in all proceedings before courts or other authorities.”

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6(a). The Trustees shall, within two months from the date of the coming into force of this scheme, elect a Chairman from among the Hereditary Trustees and the Chairman so elected shall hold office for a period of three years from the date of election. In case the trustees fails to elect a chairman as aforesaid, the commissioner shall nominate either a hereditary

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trustee or a non-hereditary trustee as the Chairman of the Board of Trustees for a period of three years from the date of such nomination.

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The Chairman shall have, with the approval of the Board of Trustees, power to appoint all other servants of the temple with the power to fine, suspend, remove or dismiss any such servant for good and sufficient cause, subject to all the regulations prescribed in the matter of disciplinary proceedings under the Act and the Rules. An appeal shall lie against the order of the Chairman to the Board of Trustees and against the decision of the Board of Trustees to the Commissioner.”

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Malabar Devaswom Board is constituted under the 'the Act' and the Board exercises supervisory control over

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the Temple administration. Section 48 of the Act deals with appointment of office holders and servants in Religious Institutions. It reads as follows:

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'' 48. Appointment of office-holders and servants in Religious Institutions .- (1) Vacancies, whether permanent or temporary, amongst the office-holders or servants of a religious

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institution shall be filled up by the trustee in cases where the office or service is not hereditary.

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(2)In cases where the office or service is hereditary, the next in the line of succession shall be entitled to succeed.

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(3) Where, however, there is a dispute respecting the right of succession, or

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Where such vacancy cannot be filled up immediately, or

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Where the person entitled to succeed is a minor without a guardian fit and willing to act as such or there is a dispute respecting the person who is entitled to act as guardian, or

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Where the hereditary office-holder or servant is suspended from his office, under Section 49, subsection(1), the trustee may appoint a fit person to discharge the functions of the office or perform the service, until the disability of the office holder or servant ceases or another person succeeds to the office or service, as the case may be.

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Explanation.-In making any appointment under this sub-section, the trustee shall have due regard to the claims of members of the family, if any, entitled to the succession.

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(4) Any person affected by an order of the trustee under sub-section (3) may, within one

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month from the date of the receipt of the order by him, appeal against the order to the Deputy Commissioner.''

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The 3rd respondent, the Commissioner of the Malabar Devaswom Board is causing delay in approval/regularization of the employees, adversely affecting the developmental activities and causing much inconvenience to the devotees of the Temple is the grievance of the Devaswom. The authority of the 3^rd respondent to interfere in the matter of selection and recruitment is well within the purview of Sections 48, 49 and Sub Rule 10 of Rule 100(2)(y) of the Act. Though in W.P (C) 4450/2015, this Court had directed the Trustees that only on prior approval of the Commissioner (3^rd respondent) any new post can be created, later in WP(C) No. 3728 / 2014 it was held that the Board cannot insist that the trustees shall obtain prior sanction for filling up the vacancies. The controversy involved has to be appreciated

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in this backdrop.

It has been pointed out by the learned counsel for the Devaswom that in conformity with clause 18, the Devaswom invited applications as per Ext.P6 advertisement on 20.11.2013 for appointment of employees. Ext.P8 rank list was prepared on 03.02.2014 and forwarded to the 3^rd respondent on 15.09.2014 for approval. Then by Ext P2 the 3^rd respondent informed the Executive officer that further proceedings can only be as per the decision of this court in DBP 63/2014. Ext.P3 is the proceedings of the Board dated 30.11.2015 after disposal of DBP 63/2014 .It is discernible from Ext P3 that the Board had taken decision to direct the Executive Officer to submit application to create new post and to approve and regularize the appointments .

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With regard to the sequence of events, it is true that the Devaswom has invited applications as per Ext.P6 advertisement on 20.11.13. Ext.P8 is the Rank list prepared and forwarded by the Devaswom on 03.02.2014. Pursuant

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to the verdict in DBP 63 /2014 the Devaswom submitted Ext.P4 dated 06/08/2016 with a list of 50 posts. The Board found it excess and unnecessary and as complaints were there that appointments to certain posts were illegal, one Advocate Chandrasekharan Nair, a member of the Board was entrusted to look into the matter and submit a report. By Ext.P10 he reported that staff available are not sufficient so as to manage the affairs, considering the number of devotees visiting the Temple especially during the festival season. The necessity of effective appointments in the vacant posts as well creation of new posts for the smooth functioning of the Temple was suggested through this report. No insinuation was made against the recruitment effected by the Devaswom. But at the same time, the Vigilance Wing, Kannur also enquired into the allegation that the appointments were effected by the Trustees at their whims and fancies without any transparency, that too accepting bribe. Annexure A is the complaint and Annexure

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B is the report forwarded to the 3^rd respondent Commissioner fortifying the allegation. Pursuant to the report, the Board has constituted a special team to verify and report after assessing the necessity and requirement as well the liability for payment of salary. Ext.P13 is the report thus prepared by the team. The main allegation raised against the Devaswom is that out of the 11 new candidates recruited, 5 of them are close relatives of the trustees. Though the restriction to select relatives of the trustees was taken away by the subsequent decision of the Board, it is a fact that 5 newly recruited, out of the 11 candidates, are close relatives of the Trustees .

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The learned counsel for the Devaswom has submitted that though as per Clause 18 of the Scheme, the Chairman of the Board of Trustees has power to appoint employees in the Temple and the Board has only a supervisory power of administration, the appointment is unnecessarily delayed ignoring the fact that the list of the

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employees was prepared in a fair and transparent manner. Ext.P8 rank list dated 03.02.2014 was prepared pursuant Ext.P6 advertisement. As per the notification published, applications are invited for 10 posts viz.LD Clerk (2), Assistant Cook(1), Watchman (4), Driver (1),and Vazhipad Clerk (2). But what is stated in the Writ Petition is that proposal was for appointment of six existing vacancies and five new posts. The list forwarded on 15.09.2014 has also not been produced for perusal. Ext.P4 schedule prepared in the year 2016 appears to be with respect to 17 additional posts. No doubt, there is lack of clarity and it is difficult to conclude that the Devaswom followed the procedure prescribed for appointment and it was in conformity with the vacancies notified as per the advertisement. In Ext.P13, the team entrusted by the Board after assessing the requirement and necessity reported that certain posts are found quite essential, for the smooth functioning of the Temple.

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As mentioned above, it is pertinent to note that in Ext.P6 Advertisement dated 20.11.2013, only 10 vacancies have been notified, though in the petition it is mentioned as 11. Out of the 10 posts advertised, two vacancies are for LD Clerks, two vacancies are for Vazhzipadu Clerks, four vacancies are for Watchman, one for Driver and one for Assistant Cook. Ext.P8 Rank List was prepared for Clerk/Vazhipadu Clerk, Watchman, Watchman ( S.T community) Driver and Assistant Cook. It is relevant to note that apart from Ext .P10 and Ext.P11 /13 reports, Annexure B report of the vigilance is also available. In Ext.P11, the special team has mentioned that in the Special Grade Temples ( Akkara Kottiyoor and Ikkara Kottiyoor), the total employees working are 34 and out of the same, 25 are approved and the remaining 9 vacancies are not approved. The other seven subsidiary Temples are 'D' grade Temples and 3 vacancies in those Temples are not approved by the Board. Of-course in view of the verdict in

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W.P(C) No.3728/2014 ( supra ), prior sanction of the Board is not necessary for appointments, but whether the Devaswom followed the procedure prescribed in a fair manner has to be examined.

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We have meticulously gone through Ext.P4 the schedule prepared by the Board of Trustees, Ext P8 Rank list, Annexure B Report of the Vigilance Wing, Ext.P10 Report submitted by the Board Member as well Ext.P11 Report submitted by the Special Team entrusted by the Board and the other records produced by both sides and assessed the necessities and requirement of the Temple. From the materials placed before us, we find that certain newly created posts by the Trustees are quite essential for the effective functioning of the administration of the Temple, but unfortunately recruitment was not adhering to the proper procedure in letter and spirit. The authorities have an obligation to effect recruitment by giving serious attention to avoid allegation or criticism. The criticism made

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against the Devaswom is not wholly unjustified. It is significant that the Temple has its own distinct characteristics. During the festival season, the number of devotees flowing to offer prayers will be lakhs and lakhs from all over Kerala and nearby States. To safeguard the interest of the devotees, services of sufficient number of employees are absolutely necessary. Of-course, the Temple has to shoulder the financial burden arising out of the payments to the employees. Therefore, on an overall consideration of the factual situation, we are of the view that to meet the acute shortage of employees, the Devaswom shall recruit employees to the following posts .

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As the Temple is having a vehicle, the post of a permanent Driver is absolutely necessary. The Special Grade Temple and the 'D' grade Temples lack clerical posts also to maintain accounts of the Temple. So, the posts of LD Clerks/ Vazhipad Clerks are also necessary. Though the

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sanctioned posts of watchman are eight, right now only four persons are working in the said post. So if one Watchman is on leave, it will definitely cause difficulties as the Temple is having a Rest House and other buildings. So, at least three persons have to be posted as day and night Watchman (to attend the work on rotation) to meet the requirement. Like that, another post is there as rest-giver Watchman. Such a post must also be there to meet the unforeseen contingencies. The service of a Cook and an Assistant is also absolutely necessary, as 'Annadanam' is provided in the Special Grade Temple on every day. So also, for the other two Temples (Kunden Kshethram and Maruthonkara), approximately an amount of Rs. 7,000/- to 10,000/- will be received monthly as offerings. Hence the posts of Vazhipadu Clerks are also necessary to deploy in those two Temples.

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To avoid unnecessary and unwanted allegations in future and to ensure transparency in the conduct of

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recruitment, appointments shall be after fresh Notification for the additional posts created as follows :

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L.D.Clerk/Vazhipadu Clerks- four (4)

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Driver - one (1)

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3.Cook -one (1)

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Assistant Cook - one ( 1)

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Watchman - four (4).

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6.Sweeper/Cleaner - one (1)

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The vacancies identified above shall be notified by publication in leading dailies and fresh applications shall be invited from candidates. The precedent followed by the Board for recruitment can be adopted maintaining fairness and transparency and the selection shall be from the Rank list . The Board of Trustees have to complete the exercise as early as possible, at any rate, within five months from the date of receipt of a copy of this judgment. Ext.P8 Rank List prepared and published on 03.02.2014 will stand cancelled. As such, the temporary engagements to meet

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the present situation can continue till the recruitment process is over. After completing the procedure regarding recruitment to the said posts, a report detailing the entire exercise shall be submitted to this Court without delay .

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Writ Petition is disposed of accordingly.

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Sd/P.R. RAMACHANDRA MENON JUDGE

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Sd/SHIRCY V. JUDGE

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True copy

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P.S. To Judge