IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 35387 of 2009(P)
1. PAYYANNUR SREE SUBRAHMANYA SWAMI TEMPLE,
... Petitioner
Vs
1. DEPUTY COMMISSIONER,
... Respondent
2. EXECUTIVE OFFICER,
3. K.V. RAJAN,
For Petitioner :SRI.MAHESH V RAMAKRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :09/12/2009
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) No. 35387 of 2009
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Dated this the 9th day of December, 2009
JUDGMENT
Ext.P1 is the proceedings of the petitioner terminating the service of
the third respondent. Aggrieved by the said order, the third respondent filed
A.P.No.7 of 2009 before the first respondent, under section 49(2) of the
Madras Hindu Religious and Charitable Endowments Act. Along with the
said appeal, the third respondent filed I.A. No.14 of 2009 seeking stay of
Ext.P1. A copy of the I.A. is Ext.P2. In the said I.A. Ext.P4 order has been
passed by the first respondent staying the operation of Ext.P1, as a result of
which the third respondent is enabled to claim reinstatement in service,
pending disposal of the appeal. Challenging Ext.P4 this writ petition is
filed.
2. Learned counsel for the petitioner points out that prayer made by
the third respondent was for a direction that the post vacated by him be kept
vacant or in the alternative to stay operation of the said order. It is pointed
out that although the tenor of the order is to require the petitioner to keep
the post vacant, finally Ext.P1 itself is stayed leading to claim for
reinstatement, which is illegal.
W.P.(C) No. 35387/09 2
3. I heard the learned counsel appearing for the petitioner, learned
standing counsel appearing for the first respondent and Adv. Sri.M. Ramesh
Chander appearing for the third respondent.
4. Although counsel for the third respondent submitted that in
pursuance of Ext.P4, the third respondent assumed charge on 8-12-2009, on
instructions, learned standing counsel for the first respondent submitted that
the third respondent has not taken charge, as asserted on his behalf. It is
stated that the second respondent was on leave on 8-12-2009 and the office
itself was remaining closed. Having regard to the submissions thus made by
the learned standing counsel, I am inclined to think that claim of the third
respondent of having assumed charge on 8-12-2009 is factually incorrect.
5. As contended by the learned counsel for the petitioner, the effect
of Ext.P4 order is that virtually the final relief itself has been granted which
could not have been granted at an interlocutory stage. At this stage what
was appropriate for the appellate authority was to have required the
petitioner to keep the post vacant and thus preserve status quo, rather than
passing an order enabling reinstatement of the third respondent. For that
reason, I am inclined to interfere with Ext.P4 order.
6. Therefore, the writ petition is disposed of with the following
directions:-
W.P.(C) No. 35387/09 3
1) Ext.P4 will stand set aside, however, it is ordered that the
petitioner shall keep the post of Vazhipad Clerk held by the third
respondent vacant, until the disposal of A.P. No.7 of 2009.
2) The first respondent, the appellate authority, is directed to
dispose of A.P. No.7 of 2009 filed by the third respondent with
notice to him and the petitioner as expeditiously as possible, at
any rate within six weeks of the production of a copy of this
judgment.
3) In order to expedite the disposal of the appeal, as agreed by
counsel on both sides, the petitioner and the third respondent are
directed to appear before the first respondent on 18-12-2009 at 11
A.M.
4) The first respondent shall either hear the matter on 18-12-2009
or fix a date for hearing the appeal.
5) The petitioner to produce a copy of this judgment along with a
copy of the writ petition before the first respondent for
compliance.
ANTONY DOMINIC,
JUDGE.
mn.