Dismissed

K.Venugopalan, v. State of Kerala

Kerala HC28 Nov 2023WP(C)/18509/2023

Case brief

AI extract

What is this about?

Petitioner, an Executive Officer promoted from temple service, sought declaration to continue service till 65 years. Court rejected plea, holding he falls under rules for Executive Officers barred at 60 years upon accepting benefits. Petition dismissed.

What did the court decide?

Declaration that petitioner is bound to retire at 60 years under rules governing Executive Officers and not entitled to continue till 65 years.

K.Venugopalan, Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 28^TH DAY OF NOVEMBER 2023 / 7TH AGRAHAYANA, 1945

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WP(C) NO. 18509 OF 2023

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PETITIONER/S:

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K.VENUGOPALAN,
AGED59YEARS
S/O.GOPALANNAIR,KANJEERIHOUSE,KURUMBATHOORPO,
THIRUNAVAYA,MALAPPURAMDISTRICT,PIN-676505
BYADVS.
K.MOHANAKANNAN
D.S.THUSHARA

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RESPONDENTS:

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1STATEOFKERALA,
REPRESENTEDBYITSSECRETARYTOGOVERNMENT,REVENUE
DEVASWOMDEPARTMENT,THIRUVANANTHAPURAM-,PIN-695001
2MALABARDEVASWOMBOARD,
REPRESENTEDBYITSSECRETARY,HOUSEFEDCOMPLEX,
ERANHIPALAM,KOZHIKODE,PIN-673006
3THECOMMISSIONER
MALABARDEVASWOMBOARD,HOUSEFEDCOMPLEX,ERANHIPALAM,
KOZHIKODE,PIN-673006
4THEDEPUTYCOMMISSIONER,
MALABARDEVASWOMBOARD,CIVILSTATION,KOZHIKODE,
PIN-673001
5THEASSISTANTCOMMISSIONER,
MALABARDEVASWOMBOARD,TIRURDIVISION,TIRUR,
MALAPPURAM,PIN-676101
6THEASSISTANTCOMMISSIONER,
MALABARDEVASWOMBOARD,PALAKKADDIVISION,KENATHUPARAMBU,
KUNATHURMEDU,PALAKKAD,PIN-678013

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BYADVS.

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MAHESHVRAMAKRISHNAN

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WP(C)NO.18509OF2023

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SRI.LAKSHMINARAYAN,SCFORMALABARDEVASWOMBOARD

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THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON
28.11.2023,THECOURTONTHESAMEDAYDELIVEREDTHEFOLLOWING:

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WP(C)NO.18509OF2023

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JUDGMENT

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The petitioner is working as an Executive Officer Grade I in the Hindu Religious and Charitable Endowments (HR & CE) Department. He has approached this Court seeking the following reliefs:-

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(i) To issue a Writ of mandamus or any other appropriate Writ order or direction declaring that the Executive Officers who was not appointed by the Board directly are entitled to continue in service till attaining the age of 65 by virtue of the provisions of Ext.P10 and Rule 100(2)(p)(y) of the Rules;

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(ii) To declare that the provisions of Rule 100(2)(p) and X(ii) of the HR & CE Act is applicable to the employees appointed by the trustee and subsequently promoted as Executive Officers from among the employees by the HR & CE Department.

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(iii) To issue a Writ of mandamus or any other appropriate Writ order or direction directing Respondents 2 and 3 to issue necessary orders enabling the Petitioner to continue until the age of 65 as Executive Officer and also to get revised pay and other allowances within a time frame to be fixed by this Hon'ble Court.

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Short facts for deciding the issue raised by the petitioner are

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as under:-

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The petitioner states that he was appointed by the Hereditary

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Trustee as a “Vazhipadu Clerk” on 1.7.1980 under Section 48 of the Hindu Religious and Charitable Endowments Act, 1961 (Act of 1961 for the sake of brevity) on a consolidated pay basis. While working as a

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WP(C)NO.18509OF2023

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Clerk, he was considered for promotion among the temple employees in the quota earmarked for promotion and appointment as Executive Officer under the HR & CE Department. After following the procedure, the petitioner was promoted as Executive Officer on 28.3.1998. He states that he was granted grade promotion as Executive Officer, Group I, with retrospective effect from 1.6.2020. According to the petitioner, as he was promoted to Executive Officer from the post of a “temple employee,” he is governed by Rule 100(2)(y) of the Madras Hindu Religious and Charitable Endowments Rules, 1951 and can continue in service up to 65 years. According to him, the age restriction of 60 years under Section 100(2)(b) and X(ii) of the Rules insofar as it concerns Executive Officers would not be applicable to the petitioner. To substantiate that his retirement age can only be 65 years, he refers to Exhibit P11 pension receipt book. It is on these assertions that this writ petition is filed seeking directions and declarations.

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A counter affidavit has been filed by respondents 2 and 3. It is contended that it was on his own volition that the petitioner applied for appointment as Executive Officer and was consequently selected and appointed more than two decades back. It is stated that the appointment of the Executive Officer is made under a different Rule and is not a usual

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WP(C)NO.18509OF2023

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promotion from the temple service. The applicant will have to opt and make an application to the vacancies earmarked for Category (ii) under Rule 49 (a)(i) and it was in tune with the same the petitioner was appointed. The conditions of service of temple employees are governed by the Rules framed under Section 100(2)(y) of the Hindu Religious and Charitable Endowments Act, and those of the Executive Officers are governed by the Rules under Section 100(2)(p) and (x) (ii) of the Act. As per Rule 4(2) under Section 100(2)(y), the age of retirement of temple employees is 65 years. But as per Rule 21 under Section 100(2)(p) and x(ii), the Executive Officer will have to retire from service on attaining the age of 60 years. The petitioner has accepted all the service benefits for more than two decades of service in accordance with Rule 100(2)(p) and (x) (ii). If that be the case, he cannot now turn around and claim continuance of service till the attainment of 65 years as per Rule 4(2) of the Rules under Section 100(2)(y). They have contended that the petitioner's lien is in the post of Vazhipad clerk of Chandanakkavu Temple. The petitioner has lost the same on the declaration of probation in the post of Executive Officer, and he became a full member therein. It is stated that the petitioner has lost the right to claim the applicability of Rules under Section 100(2)(y). It is further

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WP(C)NO.18509OF2023

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stated that it is after having served for 24 years as Executive Officer and on the eve of retirement, that the petitioner has approached this Court with this writ petition.

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The 1st respondent has filed a counter reiterating the stand taken by respondents 2 and 3 in their counter. It is stated that the petitioner has become a full member and is covered under the Rules under Section 100 (2) (p) and (x)(ii). Insofar as Exhibit P11 is concerned, it is stated that the petitioner has been issued with a new passbook with enrolment No.80 in the post of Executive Officer in which the date of retirement is specifically stated as 30.11.2023.

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Sri. K. Mohanakannan, the learned counsel appearing for the

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petitioner, submits that the stand taken by the respondents cannot be

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sustained. He would point out that the petitioner was appointed by the Trustee of the Chandanakavu Devaswom, which is governed under a Scheme and therefore, the Rules under Section 100(2)(y) would be applicable to the petitioner. According to the learned counsel, the petitioner continues to be a temple employee, and he was merely promoted to the post of Executive Officer. The learned counsel would also refer to the law laid down by this Court in W.P.(C) No.14616 of 2023 and it is argued that the principles laid therein would squarely apply to

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WP(C)NO.18509OF2023

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the facts of the instant case.

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Sri. Lakshmi Narayanan, the learned Standing counsel

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appearing for the Malabar Devaswom Board and the learned Government Pleader, has reiterated the contentions in the counter, and it is submitted that the petitioner cannot claim the benefit under Rule 100(2)(y) of the Rules and continue till the age of 65 years.

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I have considered the submissions advanced and have carefully gone through the records.

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I find that the petitioner herein has joined as a Clerk of the

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Sree Chandanakkavu Devaswom. This fact is evident from Ext.P11, which is placed on record by the petitioner herein. The Rules under Section 100(2)(y) speak about officers and servants of religious institutions except the officers and servants constituting the establishment of the Tirumalai-Tirupathi Devasthanams to whom the Rules framed under Section 100(2)(x)(i) apply and Executive Officers appointed for religious institutions under any provisions of the Act or in pursuance of the Scheme settled or deemed to be settled thereunder, to whom the Rules framed under Section 100(2)(x)(ii) would apply. Rule 4(2) says that except for a hereditary officer or servant, no person may be appointed to or hold any office unless he is not less than 18 years and

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WP(C)NO.18509OF2023

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not more than 65 years of age.

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Admittedly, while functioning as a Clerk, the petitioner had applied for appointment to the post of Executive Officer from the category of temple employees who had completed ten years of service as provided in 4(a)(1)(ii) of the Rules under Section 100(2)(p) and x(ii). Part I of the Rules under Section 100(2)(p) and x(ii) speaks about the Rules regulating the conditions of service, pay, etc of paid Executive Officers. Rule 2(1) states that there shall be six grades of Executive Officers as mentioned in the said provision. Rule 4(a)(1) deals with appointment of an Executive Officer to any of the five grades. It says it can be by (i) by Direct Recruitment; or (ii) by promotion either from the next lower grade or from the employees of the Devasthanams who possess the requisite educational qualifications and who have put in not less than 10 years’ service or (iii) by obtaining the loan of services of any member of the Hindu Religious and Charitable Endowments (Administration) Department or any other department of the Government, if necessary.

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In the case of the petitioner, the appointment was made in terms of 4(a)(1)(ii), that is, by promotion either from the next lower grade or from the employees of the Devasthanams who possess the

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WP(C)NO.18509OF2023

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requisite educational qualifications and who have put in not less than 10 years of service. Proviso to Rule 2 says that the appointment of such person shall not be for more than one year at a time and shall not extend beyond the date on which he attains the age of 60 years.

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In the case on hand, the petitioner opted for appointment as Executive Officer from the category of temple employees in terms of 4(a)(1)(ii) of the Rules under 100(2)(p) and (x)(ii) of the Act. From the counter affidavit filed on behalf of the 1st respondent, it is clearly stated that after the appointment as Executive Officer, the petitioner was issued with a new passbook under the Scheme, and he was issued with enrolment No.80 in the post of the Executive Officer. It is also stated therein that the date of retirement of the petitioner has been specifically recorded as 30.11.2023. This fact is not controverted.

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After having continued as Executive Officer and after having received all the service benefits, the petitioner cannot claim continuance of service till the attainment of 65 years, which is reserved for temple employees. His lien in the post of Vazhipadu Clerk of Chandanakkavu Temple is lost on his declaration of probation as Executive Officer.

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Sri. Mohanakannan, the learned counsel, submits that if this

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Court is not inclined to extend the service till the petitioner attains 65

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WP(C)NO.18509OF2023

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years, the petitioner should be permitted to work till 31.12.2023, the date of retirement as shown in the Draft Seniority List. The submission of the learned counsel is opposed by Sri. Lakshmi Narayanan, who submits that the petitioner is due to retire and none of the provisions of the Rules would enable him to continue till 31.12.2023. It is submitted that Ext.P17 is a draft list and can be varied at any point of time. In response, it is submitted by Sri. Mohanakannan that the Malabar Devaswom has been following the aforesaid criteria and refers to the dates of retirement of other Executive Officers mentioned therein. I find that the assertion made by the petitioner is not supported either by the Rules of 1951 or the Kerala Service Rules. As per the assertion in the counter filed by the 1st respondent, the date of retirement of the petitioner is recorded as 30.11.2023. In paragraph No.8 of the writ petition, the petitioner has averred that he would attain the age of 60 on 01.12.2023. The date of retirement mentioned in Ext.P17 draft list can only be tentative and the same cannot be used to extend the date of superannuation of the petitioner to 31.12.2023.

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In that view of the matter, I am of the considered opinion that the petitioner is not entitled to be treated as a temple employee as he would be governed by Rules under Section 100(2)(p) and (x)(ii) which

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WP(C)NO.18509OF2023

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governs Executive Officers. The declaration as prayed for cannot be

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granted as the petitioner is bound to retire on attaining the age of 60

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years.

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This writ petition is dismissed.

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Sd/-

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RAJA VIJAYARAGHAVAN V JUDGE

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Sru

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WP(C)NO.18509OF2023

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APPENDIX OF WP(C) 18509/2023

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PETITIONER’SEXHIBITS:

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`Exhibit P1`	`TRUE COPY OF THE SALARY SCHEDULE OF`
	`CHANDANAKAVU DEVASWOM FROM 1-1-1995`
`Exhibit P2`	`TRUE COPY OF THE MEMO NO.HR-4870/94 3-4-1997` `ISSUED BY THE 2 ND RESPONDENT`
`Exhibit P3`	`TRUE COPY OF THE COMMUNICATION NO.A5-` `2593/2013/MDB DATED 14-7-2016 SENT BY THE` `ASSISTANT COMMISSIONER, 5 TH RESPONDENT TO THE` `PETITIONER`
`Exhibit P4`	`TRUE COPY OF THE COMMUNICATION` `NO.A2/600/2016/MDB DATED 10-8-2020 SENT BY THE` `5 TH RESPONDENT TO THE EXECUTIVE OFFICER,` `MANAPPULLY DEVASWOM`
`Exhibit P5`	`TRUE COPY OF THE GO(RT)1976/2020/RD DATED` `29-5-2020`
`Exhibit P6`	`TRUE COPY OF THE ORDER NO.H7/1032/2021/MDB` `DATED 24-1-2022 OF THE COMMISSIONER, MALABAR` `DEVASWOM BOARD`
`Exhibit P7`	`TRUE COPY OF THE ORDER NO.H7/380/2014/MDB DATED` `14-7-2022 OF THE 2 ND RESPONDENT WITH SENIORITY` `LIST OF GRADE EXECUTIVE OFFICERS`
`Exhibit P8`	`TRUE COPY OF THE REPRESENTATION FILED BY THE` `PETITIONER BEFORE THE 1 ST RESPONDENT DATED` `29-7-2022 (WITH TYPED COPY)`
`Exhibit P9`	`TRUE COPY OF THE ORDER NO.H7- 5278/2019/MDB(4)` `DATED 23-5-2023 OF THE 3 RD RESPONDENT`
`Exhibit P10`	`TRUE COPY OF THE MALABAR TEMPLE EMPLOYEES` `WELFARE FUND SCHEME`
`Exhibit P11`	`TRUE COPY OF THE RELEVANT PAGE OF THE PENSION` `BOOK OF THE PETITIONER`
`EXHIBIT P12`	`TRUE COPY OF THE ORDER OF THE ZAMORIN RAJA` `DATED 12-04-2023`
`EXHIBIT P13`	`TRUE COPY OF THE COMMON JUDGMENT DATED` `21-08-2023 IN WRIT PETITION 14616/2023`
`EXHIBIT P14`	`TRUE COPY OF THE PROCEEDINGS OF THE ASSISTANT` `COMMISSIONER HR AND CE (ADMINISTRATION)` `KOZHIKODE, DATED 11/03/1998 VIDE ORDER NO.` `A2-1823/90`

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WP(C)NO.18509OF2023

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EXHIBITP15TRUECOPYOFTHERELEVANTPAGEOFTHEPASSBOOK
ISSUEDTOGIRISH.V.MDATED27/11/2017
EXHIBITP16TRUECOPYOFTHETHESCHEDULEOFESTABLISHMENT
OFTHETEMPLE
EXHIBITP17TRUECOPYOFTHEPROCEEDINGSOFTHEMALABAR
DEVASWOMBOARDCOMMISSIONER,VIDENO.
H7/5278/2019/M.D.B(KDIS)DATED03/07/2023

K.Venugopalan, v. State of Kerala

Case brief

What is this about?

What did the court decide?

K.Venugopalan, v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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