High Court Kerala High Court

Harish Namboodiri vs Cochin Devaswom Board on 7 December, 2009

Kerala High Court
Harish Namboodiri vs Cochin Devaswom Board on 7 December, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 15800 of 2009(T)


1. HARISH NAMBOODIRI S/O. NARAYANAN
                      ...  Petitioner

                        Vs



1. COCHIN DEVASWOM BOARD, REP. BY ITS
                       ...       Respondent

2. SPECIAL DEVASWOM COMMISSIONER,

3. C.N.NARAYANAN NAMBOODIRI,

                For Petitioner  :SRI.S.SREEKUMAR

                For Respondent  :SRI.K.GOPALAKRISHNA KURUP,SC,COCHIN D.B

The Hon'ble MR. Justice ANTONY DOMINIC

 Dated :07/12/2009

 O R D E R
                       ANTONY DOMINIC, J.
                    ================
                W.P.(C) NO. 15800 OF 2009 (T)
                =====================

          Dated this the 7th day of December, 2009

                          J U D G M E N T

Writ petition is filed challenging Ext.P5 order of transfer.

2. Petitioner and the 3rd respondent are Shanthis working

under the 1st respondent Devaswom Board. It is stated that for

the last several years, the 3rd respondent was working as Shanthi

in the Velappaya Shiva Temple. While so, by Ext.P1 order dated

5/10/2007, the 1st respondent ordered transfer of the 3rd

respondent from Velappaya Shiva Temple to Peruvanam Temple.

That order was challenged by the 3rd respondent before this Court

in WP(C) No.29775/07. The writ petition was disposed of by Ext.P2

judgment. In the said judgment, taking note of the submissions

made by the counsel for the 3rd respondent about the

developmental activities at the temple that were being carried on

under the leadership of the 3rd respondent, this Court held that

the desirability of continuance of the 3rd respondent at the

Velappaya Shiva Temple is a matter for the Board to consider.

3. Accordingly, the matter was taken up with the Board,

but however, the Board passed Ext.P3 order dated 15/11/2007

WPC 15800/09
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rejecting the request made by the 3rd respondent against Ext.P1.

Subsequently, Ext.P4 order was passed by the 1st respondent on

26/12/2007 by which the petitioner was transferred and was

posted as Shanthi in the Velappaya Shiva Temple. Accordingly,

the petitioner joined that post and started to discharge his duties.

While he was continuing as such, by Ext.P5 order dated 2/6/09,

the 3rd respondent was again posted as Shanthi at the Velappaya

Shiva Temple and the petitioner was transferred and posted at

the Pazhuvam Subramania Swami Temple. It is challenging

Ext.P5 order, the writ petition is filed.

4. One of the contentions raised by the counsel for the

petitioner is that Ext.P5 is vitiated for malafides. It is contended

that the said order is also contrary to the guidelines issued by the

Board which provide that transfer and posting can be ordered

only after a person completes his tenure of three years at a

station. Yet another contention raised is that there are several

allegations of corruption against the 3rd respondent and that even

the vigilance enquiry, the report of which is Ext.R4(g)

substantiates his contention. According to the petitioner, for this

reason also the 3rd respondent ought not to be posted at the

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Velappaya Shiva Temple.

5. Respondents 1 to 3 have filed counter affidavits.

According to the 1st respondent Devaswom Board, on 17/2/2009,

the Secretary of the Board received a petition from the 3rd

respondent stating that due to medical grounds, it was not

possible for him to work in the temples away from his residence

and that he sought a suitable posting to a temple near to his

house. It is stated that the Secretary thereupon called for the

remarks of the Trichur Group Assistant Commissioner. It is also

stated that the Assistant Commissioner Trichur in his report dated

15/5/2009 forwarded the application of the 3rd respondent along

with the medical certificate and that considering the same Ext.P5

order was issued posting the 3rd respondent to Velappaya Shiva

Temple.

6. Para 9 of the counter affidavit of the 1st respondent

reads as under:

It is submitted that the petitioner herein is now
transferred to a temple which is hardly 25 kilometres
away from the Velappaya Temple and only 20 kilometres
away from his place of residence. It may also be
considered that the 3rd respondent is aged 60 and the
petitioner is only 30 years old. It is also submitted that
atpresent there is a vacancy in “Erattachira Temple”,
Near Sakthan Thampuran Bus stand at Thrissur and the
petitioner can be given a posting as Santhi in the said

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:4 :

temple. The said temple is only 2 Kms away from the
present place of residence of the petitioner.

In so far as the allegation of violation of guidelines is concerned, it

is stated by the 1st respondent that though under the guidelines

ordinarily transfer shall not be effected before completion of three

years, still if the circumstances justify, the Board is well within its

powers to order transfer even before a person completes 3 years.

7. In so far as the allegation of corruption against the 3rd

respondent is concerned, standing counsel for the Board submits

that allegations are not one of misappropriation. Counsel for the

3rd respondent also submitted that it was only on account of his ill

health that he made an application for transfer and posting near

to his residence. He also denies the allegations of corruption

made against him.

8. The 4th respondent, who got himself impleaded in the

writ petition has filed a counter affidavit mainly raising allegations

of corruption against the 3rd respondent. He has also produced

the vigilance report, which according to him show instances of

corruption and recommendations against the 3rd respondent

continuing in the temple in question.

9. In so far as Ext.P5 is concerned, as already stated, the

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first ground urged is that it is vitiated for malafides. The

allegation of malafide is one of serious nature and it is for the

petitioner to raise specific pleas in this behalf and substantiate

the contention and also implead the persons against whom such

allegations of malafide are raised. In this writ petition, not only

that there is no specific plea of malafides, but even the persons

against whom such allegations are made are not impleaded in

this writ petition. For this reason itself, I am not persuaded to take

cognizance of the vague and general allegations of malafides

raised at the Bar.

10. The next plea is that guidelines of transfer have been

violated. True the guidelines provide that ordinarily a person

cannot claim transfer before completing 3 years and an employee

is not liable to be transferred before completing a tenure of three

years. In this case, the petitioner has completed only 2 years at

the time when Ext.P5 was issued. Therefore, going by the

guidelines, it may be a case possible to say that the petitioner

was transferred prematurely. But then, the guidelines only say

that ordinarily a person shall not be transferred. This itself implies

that taking into account administrative exigencies existing in the

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organization, the Board is entitled to depart from the guidelines.

Unless such exercise of power is proved to be arbitrary or

malafide, this Court will not be justified in interfering with such

legitimate exercise of power. In this case going by the

uncontroverted averments in the counter affidavit of the Board,

posting and transfer of the 3rd respondent was ordered by Ext.P5

taking into account the representation made by him accompanied

by a medical certificate certifying his illness. In such a case, if

the Board has, for bonafide reasons, exercised the power and in

that process, if the guidelines have been departed from, this

Court will not be justified in interfering with such an order.

11. The next allegation against the 3rd respondent is one of

corruption. This allegation is raised entirely relying on Ext.R4(g), a

report submitted by the Vigilance and Anti Corruption Bureau.

Ext.R4(g) itself show that the said report has been forwarded by

the Government to the Board and the Board has not taken any

action thereon with notice to the 3rd respondent in pursuance

thereof. The Board having not taken any action on this report,

petitioner or the 4th respondent cannot now contend that Ext.P5 is

vitiated for this reason. Therefore, it is for the Board to do what

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they feel appropriate on Ext.R4(g) I do not find any ground to

invalidate Ext.P5.

Writ petition fails and is dismissed.

ANTONY DOMINIC, JUDGE
Rp