Dismissed

The Commissioner, Malabar Devaswom Board, v. Sreenivasan.v.K

Kerala HC17 Dec 2019WA/2407/2019

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an appeal by the Malabar Devaswom Board against a single judge order restoring a Vazhipadu Clerk's employment. The court held the Board of Trustees held appointment power, held the Commissioner lacked termination authority, and quashed the arbitrary termination order.

What did the court decide?

The writ appeal dismissed; Writ Petition allowed; Respondent awarded Rs. 5,000/- costs by the Board.

The Commissioner, Malabar Devaswom Board, Vs… — Service and Employment | Kerala HC (2019)

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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 K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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TUESDAY, THE 17TH DAY OF DECEMBER 2019 / 26TH AGRAHAYANA, 1941

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WA.No.2407 OF 2019

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AGAINST THE ORDER/JUDGMENT IN WP(C) 14296/2015(J) OF HIGH COURT OF KERALA

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APPELLANT/S:

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1 THE COMMISSIONER, MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERANHIPAAM, KOZHIKODE-673 006.

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2 THE ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD, MALAPPURAM DIVISION, TIRUR-676 101.

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BY ADV. SRI.R.LAKSHMI NARAYAN

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RESPONDENT/S:

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1 SREENIVASAN.V.K, AGED 33 YEARS PAINKANNUR DEVASWOM, P.O.PAINKANNUR, MALAPPURAM DISTRICT-679 590.

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2 THE EXECUTIVE OFFICER, PAINKANNUR DEVASWOM, P.O.PAINKANNUR, MALAPPURAM DISTRICT-679 590.

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3 THE CHAIRMAN BOARD OF TRUSTEES, PAINKANNUR DEVASWOM, P.O.PAINKANNUR, MALAPPURAM DISTRICT-679 590.

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OTHER PRESENT:

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SRI.K.MOHANAKANNAN, SRI.BINOY VASUDEVAN

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WA No. 2407 of 2019

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JUDGMENT

Dated this the 17^th day of December, 2019

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K.Vinod Chandran, J.

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A Vazhipadu Clerk appointed to Painkannur Devaswom in the year 2007 was terminated in 2015 by an order of the Executive Officer, acting under the directions of the Commissioner of the Malabar Devaswom Board (for short, “the Board”). The employee approached this Court with the writ petition, which was allowed, against which, the present appeal is filed.

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The learned Single Judge, in the impugned judgment, found that the power to appoint employees in temples under the Malabar Devaswom Board is vested with the Board of Trustees (“Trustees” for short) in terms of Section 48 of the Madras Hindu Religious and Charitable Endowments Act, 1951 (for short, “the Act”).

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There was due procedure carried out by the Board of Trustees to select the petitioner for appointment and a discrepancy pointed out by

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WA No. 2407 of 2019

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the Assistant Commissioner of the Board by Ext.P3

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proceedings was rectified. The petitioner was later appointed with effect from 01.05.2007. Section 25 of the Act speaks of inclusion of the names of serving officers in the schedule of establishment, which has to be taken up by the Board on application being made by the Board of Trustees, and after the Trustees went out of office, by the Executive Officer, which was not acted upon by the Board. It was found that the powers conferred on the Commissioner to exercise general superintendence and control of the administration of temples, will not extend to the issuance of termination orders to the employees, that too, without prior notice and without considering the objections raised. The learned Single Judge declared that the petitioner is entitled to all benefits of his regular appointment as Vazhipadu Clerk from 01.05.2007 as

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also inclusion in the schedule of the establishment.

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WA No. 2407 of 2019

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The learned Standing Counsel for the Board would

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argue that there was no termination of the

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employment carried out by the Commissioner. The Commissioner merely found that the selection

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carried out was not in the proper manner and hence, directed a fresh selection to be

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conducted. The petitioner, who was occupying the post, was not occupying the post legally and hence, the Executive Officer, who was in charge of the temple, which also did not have a Board of

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Trustees at that point of time, terminated the employment of the petitioner. In fact, it is argued that there need not have been any termination and the petitioner should not have

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been allowed to continue to perform the duties of

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Vazhipadu Clerk without a due procedure of selection being conducted.

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The learned counsel for the respondent argued to

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sustain the impugned judgment, especially, pointing out that the Board of Trustees was the appointing authority and the Act does not even

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WA No. 2407 of 2019

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provide for an approval by the Board. What was attempted by the Board of Trustees and later, the Executive Officer, was to include the employee in the schedule of establishment maintained by the Devaswom Board, which alone would enable payment of pay and allowances by the Painkannur Devaswom to the employee, Vazhipad Clerk.

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Prima facie, we were of the opinion that the proceedings were arbitrary for want of notice and the Executive Officer having acted upon the dictates of the Commissioner. We directed the

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files to be produced, which do not contain

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anything to dispel the prima facie apprehensions; rather the files fortify it.

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On facts, it has to be noticed that Sree

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Painkannur Siva Temple was administered by the Board of Trustees, which on approval by the

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Board, invited applications to the post of

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Vazhipadu Clerk on 04.02.2007 as per Ext.P1. The petitioner is said to have attended an interview to participate in the selection process and he

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WA No. 2407 of 2019

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was appointed with effect from 01.03.2007 and he

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joined the temple. A 'Bhakthajana Samithi' is said to have made a complaint regarding the interview conducted; to the Commissioner of the Board. The Assistant Commissioner then passed Ext.P3 order, cancelling the appointment and directing the conduct of an interview. The Board of Trustees carried out an interview subsequent to Ext.P3, in which, again the petitioner came out successful. He was then appointed with effect

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from 01.05.2007 by the Board of Trustees. The Chairman of the Board of Trustees also issued repeated communications to the Board for including the petitioner in the establishment schedule, which were not responded to by the

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Board.

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In the year 2011, Annex.A produced along with the statement filed by the Board is said to have been issued to the petitioner by the Commissioner, cancelling the appointment of the petitioner as also directing fresh recruitment. The petitioner

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WA No. 2407 of 2019

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is said to have been continued even after that;

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and the Executive Officer, subsequent to Annex.A dated 18.05.2011, by Ext.P8 dated 22.08.2011 informed the Commissioner that in fact, an

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interview was conducted as per Ext.P3 communication issued by the Assistant

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Commissioner. Still later, the order impugned in the writ petition as Ext.P10 was issued by the Executive Officer, terminating the petitioner's service. Ext.P10 is dated 07.05.2015.

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As rightly noticed by the learned Single Judge, Section 48 of the Act confers power on the Board of Trustees to make appointment of officeholders and servants in religious institutions. The learned counsel for the writ petitioner is also correct in submitting that the Rules framed under Section 100(2)(y) of the Madras Hindu Religious & Charitable Endowments Rules speaks of the appointing authority and the power conferred on the Board is only to include the name of the employee appointed by the Trustees in the

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WA No. 2407 of 2019

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schedule of appointment under Section 25 of the

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Act. The Commissioner does not have any power to

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terminate a person duly appointed by the Trustees either under the general powers of

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superintendence conferred under the Act or indirectly by refusing to include in the schedule of establishment; a person duly appointed by the appointing authority, the Trustees.

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We have also perused the files from which nothing is available as to what enquiry was conducted with regard to the selection carried out in the year, 2007. But for repeated communications between the Board of Trustees and the Board,

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there is nothing available in the files as to any enquiry conducted with notice to the petitioner or to the Trustees. It is an admitted fact that

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there were more than one persons, who participated in the selection process, and the

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Trustees also asserts that interview was conducted for the purpose of selection.

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We also see from the files a communication dated

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WA No. 2407 of 2019

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22.08.2011, produced by the petitioner as Ext.P8,

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wherein the Executive Officer affirms that an interview was conducted, as issued to the Assistant Commissioner. After looking into the records available, there is nothing to suspect that a backdoor appointment was made. None of the

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persons, who participated in the selection, also challenged the appointment.

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Ext.P10 has been issued specifically speaking of

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the directions issued by the Commissioner, terminating the petitioner. Ext.P10 has been issued by the Executive Officer on the dictates of the Commissioner. There is an opportunity

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afforded in Ext.P10 to the petitioner for submitting his objections within seven days,

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which we find to be a mere eye-wash. The

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Executive Officer cannot act against the dictates of the Commissioner.

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The learned Standing Counsel, from the files, pointed out the communication issued by the Commissioner. According to the Board, it does not

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WA No. 2407 of 2019

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speak of a termination as such. The Commissioner

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had merely directed a fresh selection to be

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carried out; is the contention. We see the communication from the files, in which the

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Commissioner has merely stated that though seven applications were received, it has been informed that it was the petitioner, who was appointed without an interview being conducted by the Board of Trustees. It is also stated that there had

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been widespread allegations against the selection

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conducted. It is then asserted that the appointment was not by a proper procedure and hence, there should be a fresh selection

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conducted. We see the order has been issued on 07.05.2015, when the appointment itself was

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carried out in the year 2007. Further,

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indirectly, by directing a fresh selection, the Commissioner has effectively terminated the

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petitioner from his employment. The communication also does not state as to what was the specific allegation against the selection or the source of

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WA No. 2407 of 2019

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information received by the Commissioner.

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We also see from the files that the

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Assistant Commissioner issued a communication to the Commissioner dated 01.02.2011, in which he speaks of an enquiry conducted by the Division Inspector, Manjeri. A report is also referred to, which states that the selection was conducted without an

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interview. However, it is not clear whether the enquiry was conducted with proper notice to the Trustees or the petitioner, who was appointed in the selection. There is also no enquiry report found in the files.

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In the totality of the circumstances, we find that the petitioner's appointment was proper and

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the Commissioner does not have the power to terminate the petitioner nor find the selection

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to be improper after passage of considerable

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time, almost eight years. We decline to interfere with the judgment of the learned Single Judge.

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We observe that the arbitrary action of the Board

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WA No. 2407 of 2019

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forced the petitioner to approach this Court. The learned Single Judge having found against the Board, the Board filed the appeal attempting to sustain the order passed by the Executive Officer; following the arbitrary dictates of the Commissioner. We hence direct that the petitioner in the writ petition, who is the 1^st respondent in the writ appeal, be paid Rs.5,000/- (Rupees five thousand only) as costs by the Board, which shall be done within a period of two months from the date of receipt of a copy of this judgment.

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In the result, this writ appeal is dismissed with costs as above.

Sd/-

K.VINOD CHANDRAN

JUDGE

Sd/-

V.G.ARUN

JUDGE

Bka/18.12.2019

The Commissioner, Malabar Devaswom Board, v. Sreenivasan.v.K

Case brief

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The Commissioner, Malabar Devaswom Board, v. Sreenivasan.v.K

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