High Court Kerala High Court

Payyannur Sree Subrahmanya Swami … vs Deputy Commissioner on 9 December, 2009

Kerala High Court
Payyannur Sree Subrahmanya Swami … vs Deputy Commissioner on 9 December, 2009
       

  

  

 
 
  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.
                =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
                        W.P.(C) No. 35387 of 2009
                =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
                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.