IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 2140 of 2009()
1. TALIPARAMBA, TRICHAMBARAM,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE MALABAR DEVASWOM BOARD,
3. THE COMMISSIONER, MALABAR DEVASWOM
4. THE ASSISTANT COMMISSIONER,
5. M.P.KUBERAN, MUNDOT ILLAM,
6. N.P.NARAYANAN NAMBOODIRI,
For Petitioner :SRI.M.RAMESH CHANDER
For Respondent :SRI.JACOB SEBASTIAN
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :03/03/2010
O R D E R
K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ.
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W.A.Nos.2140 & 2150 of 2009
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Dated 3rd day of March, 2010
JUDGMENT
Ravindran, J.
The common appellant in these writ appeals is the
petitioner in W.P.(C)No.20064 of 2009 from which W.A.No.2140 of
2009 arises and the first respondent in W.P.(C)No.1697 of 2009 from
which W.A.No.2150 of 2009 arises. The writ petitions were heard and
disposed of by the learned single Judge by a common judgment
delivered on 18.9.2009. These writ appeals were therefore heard
together and are being disposed of by this common judgment. The
brief facts of the case are as follows.
2. The appellant in these appeals is the Taliparamba,
Trichambaram, Kanjirangad Devaswom (T.T.K.Devaswom for short),
which is governed by Ext.P1 scheme framed by the Court of the
Subordinate Judge of Payyannur in O.P.No.60 of 1987. Ext.P1 scheme
inter alia stipulates that the affairs of the temples and their
endowments are to be administered by a Managing Committee
consisting of eight members of whom five members are elected by the
hereditary trustees from among themselves and three members from
the public are appointed by the Hindu Religious and Charitable
W.A.Nos.2140 & 2150 of 2009 2
Endowments Department. Paragraph 10 of Ext.P1 scheme stipulates
that the Managing Committee shall appoint an Executive Officer or
Manager to conduct the day to day affairs of the temples.
3. The Managing Committee of the appellant Devaswom
placed Sri.E.K.Babu, the then Executive Officer of T.T.K.Devaswom
under suspension pending disciplinary action, by order passed on
15.07.2006. Thereafter, Sri.M.Damodaran Namboodiri, the Executive
Officer of Sree Durga Bhagavathy Temple was put in additional charge
of the Executive Officer of T.T.K.Devaswom. When he expressed
inability to continue to act as Executive Officer of T.T.K.Devaswom, the
Managing Committee of the appellant Devaswom issued Ext.P2 notice
dated 14.4.2008 inviting applications for appointment as Executive
Officer of T.T.K.Devaswom on a temporary basis. The last date
stipulated for submission of applications was 30.4.2008. It was also
stipulated that the applicants should be aged below 40 years.
Pursuant to Ext.P2 notice, Sri.M.P.Kuberan, the petitioner in W.P.(C)
No.1697 of 2009 (the first respondent in W.A.No.2150 of 2009),
whose date of birth is 12.1.1970 applied for appointment as Executive
Officer. The Managing Committee of the appellant Devaswom that met
on 7.5.2008 resolved to appoint him as Executive Officer on a
temporary basis for a period of 179 days. Ext.P4 appointment order
dated 8.5.2008 was thereupon issued. The petitioner in W.P.(C)
No.1697 of 2009 (the first respondent in W.A.No.2150 of 2009), who
W.A.Nos.2140 & 2150 of 2009 3
was a practicing lawyer thereupon informed the Bar Council of Kerala
that he has suspended his practice with effect from 9.5.2008. The
Secretary, Bar Council of Kerala in turn sent Ext.P5 letter dated
12.5.2008 to the petitioner in W.P.(C)No.1697 of 2009 (the first
respondent in W.A.No.2150 of 2009) informing him that his voluntary
suspension of practice with effect from 9.5.2008 has been recorded
and the enrollment certificate surrendered by him received. Shortly
thereafter, the Managing Committee of the appellant Devaswom
dismissed Sri.E.K.Babu, the former Executive Officer of
T.T.K.Devaswom from service with effect from 30.7.2008. The
Managing Committee of the appellant Devaswom that met on
26.8.2008 therefore resolved to appoint the petitioner in W.P.(C)
No.1697 of 2009 as Executive Officer of T.T.K.Devaswom on a regular
basis. Ext.P6 order dated 1.9.2008 was thereupon issued appointing
him as Executive Officer of T.T.K.Devaswom on a regular basis.
4. Rule 2 of the rules framed under Section 100(2)(p) and
x(ii) of the Madras Hindu Religious and Charitable Endowments Act,
1951, published in the Fort St.George Gazette dated 25.09.1951 as
amended by G.O.(MS)No.1148/81/RD dated 21.10.1981, stipulates
that the upper age limit for appointment as Grade I Executive Officer
shall not exceed 35 years as on the 1st January of the year of
recruitment. The appellant Devaswom had after the petitioner in W.P.
(C)No.1697 of 2009 was appointed as Executive Officer of
W.A.Nos.2140 & 2150 of 2009 4
T.T.K.Devasom submitted Ext.P8 representation dated 26.7.2008 to
the Government requesting the Government to exempt him from the
upper age limit. That request was rejected by the Government by
Ext.P7 letter dated 11.12.2008 on the short ground that the rules do
not permit relaxation of the upper age limit. The decision of the
Government was communicated to the Commissioner, Malabar
Devaswom Board by Ext.P7 letter dated 11.12.2008. A copy thereof
was communicated to the President of the Managing Committee of the
appellant Devaswom. By that letter, the Government also directed
the appellant Devaswom to terminate the service of the petitioner in
W.P.(C)No.1697 of 2009 (the first respondent in W.A.No.2150 of
2009) and to take steps to appoint a qualified person as the Executive
Officer.
5. Before the Government rejected the request made by
the appellant Devaswom, the petitioner in W.P.(C)No.1697 of 2009
was not heard. The Government also did not take note of the rule
framed under Section 100(1) of the Madras Hindu Religious and
Charitable Endowments Act, 1951 which stipulates that the
Government may exempt any person or religious institution or
charitable endowment from all or any of the rules made under sub-
sections (1) and (2) of Section 100 of the Madras Hindu Religious and
Charitable Endowments Act, 1951. The petitioner in W.P.(C)No.1697
of 2009 therefore submitted Ext.P9 representation dated 12.1.2009 to
W.A.Nos.2140 & 2150 of 2009 5
the President of the Malabar Devaswom Board constituted under
Section 7 of the Madras Hindu Religious and Charitable Endowments
Act, 1951, requesting the President of the Malabar Devaswom Board to
permit him to continue in office as Executive Officer of T.T.K.
Devaswom. The President of the Malabar Devaswom Board forwarded
Ext.P9 representation to the State Government along with a
recommendation to grant exemption from the upper age limit
prescribed in the rules. It appears on 12.1.2009 itself, the Managing
Committee of the appellant Devaswom passed Ext.P10 resolution
resolving to terminate the service of Sri.M.P.Kuberan who was
appointed as Executive Officer of T.T.K. Devaswom by Exts.P4 and P6
orders.
6. The aggrieved Executive Officer thereupon filed W.P.(C)
No.1697 of 2009 in this Court challenging Ext.P7 order passed by the
Government rejecting the request of the appellant Devaswom to
exempt him from the upper age limit and Ext.P10 resolution passed by
the Managing Committee of the appellant Devaswom to terminate his
service. He also prayed for a declaration that he is entitled to continue
in service pursuant to Exts.P4 and P6 orders. He also sought a
direction to the Malabar Devaswom Board to consider the request
made by him in Ext.P9 representation, after affording him an
opportunity of being heard. W.P.(C)No.1697 of 2009 came up for
admission on 15.1.2009. The writ petition was disposed of that day
W.A.Nos.2140 & 2150 of 2009 6
itself with a direction to the Malabar Devaswom Board to consider
Ext.P9 representation submitted by the Executive Officer and to pass
appropriate orders thereon within three months from the date of
receipt of a copy of the judgment. This Court also directed that till a
decision is taken as directed by this Court, the status quo as on
15.1.2009 shall continue. The appellant Devaswom thereupon filed
R.P.No.104 of 2009 seeking a review of the judgment delivered on
15.1.2009 in W.P.(C)No.1697 of 2009. It was contended that the
Executive Officer who has been removed from service on 12.1.2009 is
creating hurdles in the day to day administration of the Devaswom.
By order passed on 23.1.2009 in R.P.No.104 of 2009 the learned
single Judge, after hearing the learned counsel appearing for the
appellant and the Executive Officer allowed the review petition and
recalled the judgment delivered on 15.1.2009 in W.P.(C)No.1697 of
2009. On 23.1.2009 itself, the learned single Judge admitted W.P.(C)
No.1697 of 2009 and passed Ext.P2 interim order produced in W.P.(C)
No.20064 of 2009 directing the appellant Devaswom not to fill-up the
post of Executive Officer of T.T.K. Devaswom on a permanent basis.
7. Shortly thereafter, on 28.1.2009, the Managing
Committee of the appellant Devaswom appointed one Sri.P.K.Kuberan
as Executive Officer of T.T.K. Devaswom on a temporary basis for a
period of 89 days. Sri.P.Kunhikannan, a member of the Managing
Committee of the appellant Devaswom objected to the said
W.A.Nos.2140 & 2150 of 2009 7
appointment. The Commissioner, Malabar Devaswom Board thereupon
passed an order dated 2.2.2009 cancelling the appointment of
Sri.P.K.Kuberan as Executive Officer on a temporary basis. The
appellant Devaswom and the said Sri.P.K.Kuberan thereupon jointly
filed W.P.(C)No.3873 of 2009 in this Court challenging the said order.
In W.P.(C)No.3873 of 2009 this Court passed an interim order on
5.2.2009 staying the operation of the order dated 2.2.2009 passed by
the Commissioner, Malabar Devaswom Board. Sri.P.Kunhikannan at
whose instance the order impugned in W.P.(C)No.3873 of 2009 was
passed thereupon got himself impleaded as additional 5th respondent in
W.P.(C)No.3873 of 2009. He also moved for vacating the interim
order by filing I.A.No.2511 of 2009 in W.P.(C)No.3873 of 2009. That
application was rejected by order passed on 24.3.2009. The learned
single Judge also directed that W.P.(C)No.3873 of 2009 be heard along
with W.P.(C)No.1697 of 2009.
8. While matters stood thus, the Managing Committee of
the appellant Devaswom that met on 12.5.2009 passed Ext.P5
resolution, produced in W.P.(C)No.20064 of 2009 whereby it resolved
to call for the explanation of the petitioner in W.P.(C)No.1697 of 2009
in relation to certain alleged acts of misconduct committed by him.
Ext.P6 show cause notice dated 23.5.2009 produced in W.P.(C)
No.20064 of 2009 was thereupon issued to which the petitioner in
W.P.(C)No.1697 of 2009 submitted Ext.P7 reply. The Government
W.A.Nos.2140 & 2150 of 2009 8
thereafter issued Ext.P8 order dated 29.6.2009 exempting the
appellant Devaswom from the stipulation regarding the upper age limit
prescribed in Rule 2(1) of the rules framed under Section 100(2)(p)
and x(ii) of the Madras Hindu Religious and Charitable Endowments
Act, 1951 for the limited purpose of appointing the petitioner in W.P.
(C)No.1697 of 2009 as Executive Officer of T.T.K. Devaswom. The
appellant Devaswom thereupon filed W.P.(C)No.20064 of 2009
challenging Ext.P8 Government order. In that writ petition, the
appellant Devaswom contended that the Government do not have the
power to pass an order of exemption and that the order granting
exemption has been passed without hearing the appellant and other
affected parties. It was also contended that the order of exemption
was passed without taking note of the disciplinary proceedings
contemplated against the petitioner in W.P.(C)No.1697 of 2009.
9. The three writ petitions were heard together. By the
judgment impugned in these writ appeals, the learned single Judge
held that there is no merit in the challenge to the order of exemption
passed by the Government. W.P.(C)No.20064 of 2009 filed by the
appellant Devaswom was dismissed. W.P.(C)No.1697 of 2009 was
disposed of with a direction to the appellant Devaswom to implement
the Government order granting exemption and to reinstate the
petitioner therein in service. W.P.(C)No.3873 of 2009 filed by the
appellant Devaswom and Sri.P.K.Kuberan was dismissed with the
W.A.Nos.2140 & 2150 of 2009 9
observation that the appointee will be entitled to the benefits which he
is otherwise entitled to for the service rendered by him till the date of
the judgment. The appellant Devaswom has filed these writ appeals,
canvassing the correctness of the judgment of the learned single Judge
in W.P.(C)Nos.20064 of 2009 and 1697 of 2009 respectively.
10. We heard Sri.A.P.Chandrasekharan, the learned Senior
Advocate and Sri.M.Ramesh Chander, the learned counsel appearing
for the appellant, Sri.V.Chitambaresh, the learned Senior Advocate
appearing for the petitioner in W.P.(C)No.1697 of 2009, Smt.R.Ranjini,
the learned counsel appearing for the Malabar Devaswom Board,
Smt.R.Bindu, the learned Government Pleader appearing for the State
of Kerala, Sri.P.K.Suresh Kumar, the learned counsel appearing for the
sixth respondent in W.A.No.2140 of 2009 and Sri.O.V.Maniprasad, the
learned counsel appearing for the fourth respondent in W.A.No.2150 of
2009. We have also gone through the pleadings and the materials on
record. The pleadings and the materials on record disclose that the
Managing Committee of the appellant Devaswom had appointed the
petitioner in W.P.(C)No.1697 of 2009 as Executive Officer initially on a
provisional basis for a period of 179 days by Ext.P4 dated 8.5.2008
and thereafter on a regular basis by Ext.P6 order dated 1.9.2008. The
Managing Committee of the appellant Devaswom had after the initial
provisional appointment of the petitioner in W.P.(C)No.1697 of 2009
as Executive Officer submitted Ext.P8 representation dated 26.7.2008
W.A.Nos.2140 & 2150 of 2009 10
before the Government requesting the Government to exempt him
from the upper age limit prescribed in the rules. In that application,
the appellant Devaswom had also set out the reasons warranting the
grant of such exemption. That request was rejected by the
Government on the short ground that the law does not provide for the
grant of such exemption. The aggrieved Executive Officer thereupon
moved the Malabar Devaswom Board by submitting Ext.P9
representation produced in W.P.(C)No.1697 of 2009. The Malabar
Devaswom Board in turn forwarded the said representation to the
Government and acting on that representation the Government issued
Ext.P8 order dated 29.6.2009 challenged in W.P.(C)No.20064 of 2009
granting exemption to the appellant Devaswom from the upper age
limit prescribed in the rules for the limited purpose of appointing the
petitioner in W.P.(C)No.1697 of 2009 as Executive Officer.
11. As noticed by the learned single Judge, the appellant
Devaswom is a juristic person. The Managing Committee of the
appellant Devaswom had initially requested the Government to exempt
the Executive Officer appointed by them from the upper age limit
prescribed in the rules. That request was rejected by the Government
initially on the misconception that the Government are not empowered
to pass an order of exemption. In our opinion, the stand initially taken
by the Government in Ext.P7 produced in W.P.(C)No.1697 of 2009
cannot be sustained. The rules framed under Section 100(1) of the
W.A.Nos.2140 & 2150 of 2009 11
Madras Hindu Religious and Charitable Endowments Act, 1951
specifically empower the Government to exempt any person or
religious institution or charitable endowment from all or any of the
rules made under sub-sections (1) and (2) of Section 100 of the
Madras Hindu Religious and Charitable Endowments Act, 1951. The
only limitation on the exercise of the said power is that the order of
exemption thus issued shall not be less favourable to the person or
religious institution or charitable endowment than that provided by the
rule or rules from which exemption is granted. It was without noticing
this power to grant exemption that the Government initially rejected
the request made by the appellant Devaswom to exempt them from
the operation of the rule prescribing the upper age limit in order to
facilitate the appointment of the petitioner in W.P.(C)No.1697 of 2009
as the Executive Officer of T.T.K. Devaswom. Later, on being alerted
about the existence of power in the Government to grant exemption,
the Government issued Ext.P8 order produced in W.P.(C)No.20064 of
2009 exempting the appellant Devaswom from the upper age limit
prescribed in the rules for the purpose of appointing the petitioner in
W.P.(C)No.1697 of 2009 as the Executive Officer of T.T.K.Devaswom.
We agree with the learned single Judge that the appellant Devaswom
which moved the Government for exemption, cannot be heard to
contend that the Government do not have the power to grant an order
of exemption or that before the order of exemption was passed, the
W.A.Nos.2140 & 2150 of 2009 12
appellant should have been put on notice or heard. We also agree
with the learned single judge that as the appellant Devaswom is a
juristic person with continued existence, the decision taken by the
Managing Committee in office at a particular point of time cannot be
altered merely by the reason of change in the constitution of the
Managing Committee.
12. In Ext.P8 representation dated 26.7.2008 submitted by
the then President of the Managing Committee of the appellant
Devaswom to the State Government, it is very clearly stated that the
petitioner in W.P.(C)No.1697 of 2009 is eminently fit to hold office as
the Executive Officer of T.T.K. Devaswom. It is also stated in
categorical terms that the experience of the petitioner in W.P.(C)
No.1697 of 2009 as a Lawyer was also taken into consideration when
the decision to appoint him as Executive Officer of T.T.K. Devaswom
was taken. However, after the new Managing Committee of which
Sri.P.E.Narayanan Namboodiri is the President assumed office, taking
advantage of the decision initially taken by the Government declining
to grant exemption from the upper age limit, the new Managing
Committee that met on 12.1.2009 resolved to terminate the
appointment of the petitioner in W.P.(C)No.1697 of 2009 as Executive
Officer. In Ext.P10 resolution adopted by the Managing Committee the
only reason stated is that in view of the Government order declining
exemption, the petitioner in W.P.(C)No.1697 of 2009 is ineligible to
W.A.Nos.2140 & 2150 of 2009 13
continue as Executive Officer. No other reason is stated in Ext.P10
resolution in support of the decision taken by the Managing Committee
to terminate the appointment of the Executive Officer appointed as per
Exts.P4 and P6 orders. Later, after W.P.(C)No.1697 of 2009 was filed,
the new Managing Committee that met on 12.5.2009 passed Ext.P5
resolution produced in W.P.(C)No.20064 of 2009 whereby the
Managing Committee resolved to call for the explanation of the
petitioner in W.P.(C)No.1697 of 2009 into the complaint filed by
Sri.P.E.Narayanan Namboodiri, a member of the Managing Committee.
Ext.P6 show cause notice dated 23.5.2009 produced in W.P.(C)
No.20064 of 2009 was thereupon issued. Thereafter, when
Government passed Ext.P8 order of exemption, W.P.(C)No.20064 of
2009 was filed challenging that order. On a consideration of the
totality of the facts and circumstances of the case, we are of the
considered opinion that the challenge to Ext.P8 Government order
produced in W.P.(C)No.20064 of 2009 is without any merit. Further,
the learned single Judge has in the judgment under challenge
protected the rights of the appellant Devaswom to proceed against the
petitioner in W.P.(C)No.1697 of 2009 in respect of the alleged acts of
misconduct committed by him. The learned single Judge has also held
that the order of exemption will not in any way affect the rights of the
disciplinary authority. We are in agreement with the learned single
Judge that on the admitted facts of the case it cannot be said that the
W.A.Nos.2140 & 2150 of 2009 14
Government have not acted on relevant considerations when it passed
the order of exemption.
For the reasons stated above, we hold that there is no
merit in these writ appeals. The writ appeals fail and are accordingly
dismissed. No costs.
K.BALAKRISHNAN NAIR
Judge
P.N.RAVINDRAN
Judge
TKS