IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 906 of 2010(K)
1. V.M.DAMODARAN, AGED 53 YEARS, S/O.ARIYAN
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE MALABAR DEVASWOM BOARD, KOZHIKODE,
3. THE COMMISSIONR, MALABAR DEVASWOM BOARD,
4. V.V.RATHEESAN, EXECUTIVE OFFICER,
For Petitioner :SRI.M.RAMESH CHANDER
For Respondent :SRI.P.C.SASIDHARAN
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :15/07/2010
O R D E R
C.T. RAVIKUMAR, J.
--------------------------------------------
W.P.(C). NOS. 28705, 28997 OF 2009,
906 & 1039 OF 2010
--------------------------------------------
Dated this the 15th day of Julyww 1, 2010
JUDGMENT
The rival claims for the office of the Deputy Commissioner
(Administration) under the Malabar Devaswam Board between one
V.M.Damodaran and one Ratheesh is the main issue to be resolved in these
Writ Petitions. The former has filed W.P.(C).Nos.906/2010 and
28997/2009 and the latter has filed W.P.(C).No.28705/2009. W.P.(C).
No.1039/2010 has been filed by the Malabar Devaswam Board (hereinafter
referred for brevity ‘the Board’ only). Since common issues based on
common facts involve in these Writ Petitions, they were heard jointly and
are being jointly considered in this common judgment.
2. For convenience, I take W.P.(C).No.28705/2009 as the
leading case and the parties are being referred to hereafter in this judgment
according to their respective status in the said Writ Petition. So also, the
documents are being referred to in the manner they are set out in the said
Writ Petition. The petitioner was working as Deputy Commissioner
W.P.(C) NO.28705/09 &
Connected cases 2
(Administration) under the Hindu Religious and Charitable Endowment
Department (hereinafter for short ‘H.R & C.E’ Department). While so, the
said Department was abolished and it stood transferred to the second
respondent Board by virtue of Section 7 of the Madras Hindu Religious
and Charitable Endowment Act, 2008 (for short ‘the Act’ only) till its
employees are absorbed in other Government Departments. The
employees were given right to opt for that purpose under Section 19G (d)
of the Act. One post of Commissioner and two posts of Deputy
Commissioner viz., Deputy Commissioner (Administration) and Deputy
Commissioner (Law) were available under the H.R &.C.E Department. It
was on 30.6.2007 that, pursuant to the order of promotion, the petitioner
assumed charge of the office of the Deputy Commissioner
(Administration). On 30.11.2008, the petitioner had exercised his right of
option to go out of the Department to any other Government Department in
terms of Section 19G(d). While so, he was directed to take up the
additional charge of special officer of Sri.Parassinikkadavu Muthappan
Temple as per order dated 28.9.2008. However, he could assume charge
as Special officer only on 20.10.2008 on account of the strong resistance
W.P.(C) NO.28705/09 &
Connected cases 3
of the temple authorities. On his assumption of charge as Special Officer
he took stringent and strict steps in the matter of financial transactions and
that made him an eyesore. On account of political pressure, he was placed
under suspension as per Ext.P1 order dated 26.12.2008 of the first
respondent. Though the existence of employee-employer relationship
between the petitioner and the Government was admitted by the third
respondent in the counter affidavits filed in W.P.(C).Nos.32267/2008 and
30999/2008 challenging the posting of the petitioner as Special Officer,
the petitioner’s request for review of suspension under Rule 10(6) of
Kerala Civil Services (Classification, Control & appeal) Rules, 1960 was
rejected. The same was challenged by the petitioner in W.P.(C).
No.314/2009 and as per Ext.P2 judgment this Court set aside the
suspension and directed to reinstate the petitioner as Deputy Commissioner
under the second respondent. However, it was also directed thereunder to
post him in a suitable post which has nothing to do with the temple.
Pursuant to Ext.P2 judgment, the petitioner had submitted Ext.P3
representation before the first respondent and the first respondent
exonerated the petitioner from all the charges and directed to reinstate him
W.P.(C) NO.28705/09 &
Connected cases 4
in service as Deputy Commissioner (Administration) with immediate effect
as per Ext.P4 order dated 1.10.2009. Accordingly, he rejoined duty on
3.10.2009 as Deputy Commissioner (Administration). However, on the
same day itself, he was posted at Chandrasekhara Sastha Temple,
Kasaragode as per Ext.P5order dated 3.10.2009 in full additional charge of
its Executive Officer. Against Ext.P5, he had submitted Ext.P6. However,
no action was taken thereon and in the meanwhile as per Ext.P8 order
dated 5.9.2009, the second respondent transferred and posted the fourth
respondent herein (petitioner in W.P.(C).No.906/2010 and 28997/2009) as
Deputy Commissioner (Administration ). According to the petitioner, the
fourth respondent was never been promoted to the post of Deputy
Commissioner and, as such, his transfer and posting as Deputy
Commissioner (Administration) as per Ext.P4 is ipso facto void. In fact,
according to the petitioner, the fourth respondent is facing disciplinary
proceedings and was reinstated in service only as per Ext.P9 order dated
11.2.2009. That apart, as per Ext.P9 order dated 11.2.2009, the fourth
respondent was reinstated only as Assistant Commissioner pending
disciplinary action. In fact, in his capacity as Deputy Commissioner, he
W.P.(C) NO.28705/09 &
Connected cases 5
was appointed to conduct an enquiry against the fourth respondent.
Exts.P9 and P10 would reveal that the order of suspension was revoked by
the Government and that disciplinary proceedings were ordered to be
continued against the fourth respondent. It is the contention of the
petitioner that since the employees under the H.R. & C.E Department are
virtually deputationists to the Board, the competent authority as also the
disciplinary authority of employees like the petitioner and fourth
respondent is the Government. It is with these contentions that this Writ
Petition has been filed mainly challenging Exts.P5 and P8 to the extent it
orders transfer of the fourth respondent as Deputy Commissioner
(Administration). The date of compulsory retirement of the petitioner is
31.3.2010.
3. A counter affidavit has been filed jointly by respondents 2 and
3. The fourth respondent has also filed a counter affidavit in this Writ
Petition. The claim of the petitioner that he has been working as Deputy
Commissioner (Administration) under the Board has been refuted by the
said respondents. Respondents 2 and 3 support the action in issuing
Exts.P5 and P8 orders. According to them, Ext.P5 was passed strictly in
W.P.(C) NO.28705/09 &
Connected cases 6
terms of Ext.P2 judgment whereby it was directed to reinstate him as
Deputy Commissioner under the Devaswom Board and also to give him a
suitable post that has nothing to do with the temple. A perusal of Ext.P5
would reveal that the said order is perfectly in tune with the aforesaid
direction in Ext.P2 judgment. According to them, the action on the part of
the Government in passing Ext.P4 is clear contempt of court. Against
Ext.P4 order passed by the Government, the Board has filed a review
petition. They have filed I.A.No.14045/2009 seeking permission to
implement Ext.R2(a) decision of the Board and to pass consequential
orders in the matter of posting of the petitioner during the pendency of the
Writ Petition. Ext.R2(a) carries the decision to post the petitioner as
Deputy Commissioner and Special Officer (Land Conservancy). A counter
affidavit has been filed by the petitioner in the said I.A. According to the
petitioner, the contention of the respondents 2 and 3 regarding the
existence of the post Deputy Commissioner and Special Officer (Land
Conservancy) is nothing but a claptrap in the light of Exts.P11 and P12.
Based on Ext.P11 order dated 5.10.2009, it is stated therein that the
second respondent Board is not having power to promote the fourth
W.P.(C) NO.28705/09 &
Connected cases 7
respondent to the post of Deputy Commissioner whilst such power is
vested with the Government. It is further contended that the said post of
Special Officer (Land Conservancy) in the grade of Commissioner was
created only for a period of one year to protect the landed properties of the
Devaswom in the erstwhile H.R.& C.E Department as is obvious from
Ext.P13. Though the term of the said post was extended from time to time,
it had expired on 1.12.2007 and thereafter, no orders have been issued by
the Government for continuance of the said post of Special Officer (Land
Conservancy) in the grade of Commissioner. According to the petitioner,
said post was an ex-cadre post sanctioned by the Government and, on the
retirement of one Sri.Kamaleswaran, the said post was abolished and,
hence, the contentions of respondents 2 and 3 based on Ext.P3 is
absolutely bereft of any basis. At any rate, the action on the part of
respondents 2 and 3 in posting the petitioner against a post which is not in
existence cannot be countenanced in the light of Ext.P4. He is entitled to
get reinstated in the post of Deputy commissioner (Administration) and a
close scrutiny of Ext.P2 judgment would reveal that there cannot be any
inhibition for such a posting, it is further submitted. The said respondents
W.P.(C) NO.28705/09 &
Connected cases 8
have filed a reply affidavit to the counter affidavit filed by the petitioner in
I.A.No.14045/2009. It is stated therein that no disciplinary proceedings is
pending against the fourth respondent- Sri.V.M.Damodaran. According to
them, on his reinstatement as Deputy Commissioner on 3.10.2009, the
petitioner was given full charge of Executive Officer of Chandragiri Sastha
Temple, Kasargode and in spite of taking charge of the temple, he has
approached this Court. In support of the said action and to contend that
the petitioner was not functioning as Deputy commissioner
(Administration), they have produced Ext.R2(d), the interim order passed
in W.A.No.2295/2009 dated 16.10.2009. As per the said order, the status
quo obtaining as on that date with regard to the occupancy in the post of
Deputy Commissioner (Administration) was directed to be continued.
Subsequently, the said Writ Appeal along with W.A.No.2296/2009 was
disposed of leaving open all the contentions taken by the parties to be
urged before the Single Bench. Ext.R2 (d) was ordered to be continued till
orders are passed by the Single Judge.
4. The fourth respondent, in the counter affidavit filed in this
Writ Petition contended that he was given a posting as Deputy
W.P.(C) NO.28705/09 &
Connected cases 9
commissioner (Administration) as per Ext.P8 order dated 5.9.2009 and
consequently, he assumed charge of the said office. In paragraph 4 of the
said counter affidavit, the fourth respondent pointed out the fact that the
respondents 2 and 3 had categorically refuted the pendency of any
disciplinary proceedings against him. Relying on the said statement made
by respondents 2 and 3 in their counter affidavit, it is contended that there
is no basis for the contention of the petitioner that disciplinary proceedings
is pending against him. However, in the same paragraph, it is stated thus:
‘moreover, the charges levelled against him are false and flimsy’. The
contention of the fourth respondent is that he has been transferred and
posted as Deputy commissioner (Administration) and, therefore, the
petitioner cannot contend that he is continuing in the post of Deputy
Commissioner (Administration).
5. The challenge of the petitioner against Ext.P5 order dated
3.10.2009 need not be looked into any further for the simple reason that as
per respondents 2 and 3, pursuant to the interim order in this Writ Petition
staying Ext.P5 order, they have resolved to post the petitioner as Special
Officer (Land Conservancy) which is in the grade of Deputy
W.P.(C) NO.28705/09 &
Connected cases 10
commissioner. 6. Now, I may deal with the other Writ Petitions.
The second respondent has filed W.P.(C).No.1039/2010. The petitioner
and the fourth respondent herein respectively are respondents 2 and 3 in
the said Writ Petition. The relief sought for in the said Writ Petition are as
follows:
i) issue a writ of certiorari or any other
appropriate writ, order or direction calling for the
records leading to Exts.P4 and P12 and quash the
same;
ii) issue an appropriate writ, order or direction
declaring that the 3rd respondent is entitled to continue
as Deputy Commissioner (Administration) in the
Malabar Devaswom Board;
7. A perusal of the said Writ Petition would reveal that the
contentions are more or less the same contentions raised in the counter
affidavit filed by respondents 2 and 3 in Writ Petition No.28705/2009.
Ext.P4 in the said Writ Petition is G.O.(RT)No.3594/2009/RD/ dated
1.10.2009. In fact, it is the same G.O that was produced as Ext.P4 in W.P.
(C).NO.28705/2009 whereby Sri.V.V.Ratheesan, the petitioner was
exonerated of all the charges and directed to be reinstated in service as
W.P.(C) NO.28705/09 &
Connected cases 11
Deputy Commissioner (Administration). Ext.P12 therein is G.O.(RT)
No.4659/09/Rd dated 26.12.2009 passed by the Government dismissing
the review petition submitted by the Board. The further prayer made in the
said Writ Petition is for the issuance of a declaration that Sri.V.M
Damodaran (third Respondent therein) is entitled to continue as Deputy
commissioner (Administration) in the Malabar Devaswom Board.
8. The fourth respondent has filed Writ Petition Nos.28997/2009
and 906/2010. The prayer in Writ Petition No.28997/2009 is for issuing a
writ of mandamus commanding the respondents 2 and 3, the Board and the
Commissioner of the Board, to initiate all proceedings to comply with
Ext.P4 order. Ext.P4 therein is order No.HRJ.1-4245/09 dated 3.10.2009
which is in fact Ext.P5, the impugned order in W.P.(C) No.28705/2009.
The order dated 14.10.2009 passed in W.P.(C) No.28997/2009 also
assume relevance in the context of the contentions raised in these Writ
Petitions. It reads thus:
“Admit. G.P takes notice for R1. Renjini takes notice
for R2 and R3. Mr.Mohan C.Menon takes notice for
R4. Post along with W.P.(C).NO.28705/09.
Heard the learned counsel on the question of
interim relief. I had already passed a detailed order
in W.P.(C).NO.28705/2009, directing the petitioner
W.P.(C) NO.28705/09 &
Connected cases 12
therein, the 4th respondent herein, to be retained as
Deputy Commissioner (Admn.) of Malabar
Dewaswom Board. In the circumstances, prayer for
interim relief made by the petitioner herein will stand
declined. The order passed in W.P.(C).NO.28705/09
will be treated as an order passed in this case as
well.”
It would reveal that as per interim order in W.P.(C).NO.28705/2009, this
Court directed the petitioner therein viz., SriV.V.Ratheesan to be retained
as Deputy Commissioner (Administration) of Malabar Devaswom Board.
Further, the said order was ordered to be treated as an order passed in W.P.
(C).NO.28997/2009 as well. In fact, the said order was passed after
declining the interim prayer sought in W.P.(C).NO. 28997/2009. Ext.R2
(d) is the order passed on 16.10.2009 in W.A.No.2295/2009 filed against
the order in W.P.(C).NO.28705/2009 dated 13.10.2009. Ext.R2(d) reads
thus:
” Sri.Mohan C.Menon, learned counsel appearing for
the Writ Petitioner submits that the Writ Petitioner has
already taken charge as Deputy Commissioner(Admn.)
on 14.10.2009. Learned counsel for the appellants
however, refute the above submission. Be that as it
may, the status quo obtaining as on today with regard
to occupancy in the post of Deputy Commissioner
(Admn.) will continue.”
Ext.R2(d) is the common judgment dated 4.11.2009 passed in
W.P.(C) NO.28705/09 &
Connected cases 13
W.ANos.2295/2009 and 2296/2009 filed respectively against the interim
orders passed in W.P.(C).NO. 28705/09 dated 13.10.2009 and W.P.(C).
NO. 28997/09 dated 14.10.2009. The said common judgment was passed
taking note of the decision of the Board taken on 22.10.2009 ie., Ext.R2(a)
in W.P.(C).NO. 28705/2009 whereby the Board decided to post the
petitioner as Special Officer (Land Conservancy) in the grade of Deputy
Commissioner. As per Ext.R2(f), the interim order passed in the Writ
Appeal viz., Ext.R2(d) was directed to be continued till orders are passed
in the Writ Petitions and the said Writ Petitions are directed to be posted
before the Single Bench.
9. As noticed hereinbefore, the fourth respondent has also filed
W.P.(C).No.906/2010. The state, the Board, the Commissioner of the
board and V.V Ratheesan-petitioner in W.P.(C). No.28705/2009 are
respondents 1 to 4 respectively in the said Writ petition. It has been filed
mainly with the following prayer:
“to call for the records leading to Ext.P7 and
quash the same in so far as it directs the displacement
of the petitioner as the Deputy Commissioner
(Administration) of the Malabar Devaswom Board by
a Writ of Certiorari or any other writ, direction or
order”.
W.P.(C) NO.28705/09 &
Connected cases 14
A perusal of the same would reveal that it is in fact, somewhat similar to
the interim relief sought for by him in W.P.(C).NO. 28997/2009 and
declined by this Court as per order dated 14.10.2009.
10. Ext.P7 is the order under challenge in the said Writ Petition.
The said order dated 26.12.2009 is Ext.P12 in W.P.(C).No.1029/2010 filed
by the Board. It is an order by the Government. It was held therein that
the Board has no power to promote Sri.V.M.Damodaran, the petitioner in
W.P.(C).No.906/2010. He assails the same on the ground of violation of
the principles of natural justice. Normally, in such circumstances, this
court would remit back the matter to the concerned authority for
reconsideration with notice to the concerned parties. Since all the parties
are before this Court and all the parties have addressed on all issues
including the right of the petitioner in W.P.(C).No.906/2010 (fourth
respondent in W.P.(C).No.28705/2009) to get a transfer and posting as
Deputy commissioner (Administration) I do not propose to do so. In fact,
to decide the issues involved in W.P.(C).NOs.28705/2009 and 1039/2010,
the said issue is also to be considered. The contentions in W.P.(C).
W.P.(C) NO.28705/09 &
Connected cases 15
No.906/2010 is that Sri.V.M.Damodaran, the petitioner therein was
promoted as per Ext.P1therein to the post of Deputy Commissioner
(Administration) in Malabar Devaswom Board.
11. In short, the contentions raised by the parties to these Writ
Petitions raised two points for consideration. Firstly, whether without
issuing an order of promotion an Assistant Commissioner under the Board
can be transferred and posted as its Deputy Commissioner. Secondly,
whether the posting of the petitioner (petitioner in W.P.(C).
No.28705/2009) as Special Officer (Land Conservancy) is sustainable.
Certain incidental questions also would crop up for consideration while
considering the aforesaid issues.
12. Admittedly, the petitioner was promoted and posted as Deputy
Commissioner (Administration) and it was while working in the said post
that he was placed under suspension. A close scrutiny of Ext.P2 judgment
of this Court in W.P.(C).No.314/2009 would reveal that the arguments
during the course of hearing of the said Writ Petition were confined only
to the validity of the order placing the petitioner under suspension and the
W.P.(C) NO.28705/09 &
Connected cases 16
validity of Ext.P21 therein rejecting Ext.P19 review petition filed by the
petitioner before the Government. The petitioner therein was the petitioner
in W.P.(C).No.28705/2009 ie., Sri.V.V.Ratheesan After considering the
rival contentions, this Court interfered with the order of suspension of the
petitioner. All the aspects and particularly the fact that petitioner had
already attained the age of superannuation in May 2009 and his
continuance till 31.3.2010 would be only in view of the amendment to the
Kerala Service Rules. Ext.P16 order therein to the extent it placed the
petitioner under suspension and Ext.P21 therein rejecting his review were
set aside. Paragraph 14 therein also assumes relevance in the context of
the rival contentions and the same reads thus:
“Needless to say that this will not enable the
petitioner to continue to continue as Special Officer of
the Temple and his reinstatement will be as Deputy
Commissioner under the Devaswom and he will be
posted in a suitable post, which has nothing to do with
the temple.”
13. After issuing such a direction in paragraph 14, it was made
clear in paragraph 15 thereunder as follows:- ‘it is made clear that the
observation made herein will have no effect whatsoever on the charges that
have been levelled against the petitioner’. Thus a perusal of the said
W.P.(C) NO.28705/09 &
Connected cases 17
judgment would reveal that the petitioner was directed to be reinstated as
Deputy Commissioner under the Board and at the same time, taking into
account the circumstances prevailed at that point of time, it was held that
the said judgment would not enable the petitioner to continue as as Special
Officer of the temple and he would be posted in a suitable post that has
nothing to do with the temple. Admittedly, Ext.P5 order was passed in
purported compliance of Ext.P2 judgment. As per the same, the petitioner
was ordered to be posted as in-charge of the Executive Officer of
Chandragiri Sastha Temple, Kasargode. According to the respondents 2
and 3, they have taken a decision to vary Ext.P5 order taking note of the
interim order dated 13.10.2009 and to post him as Special Officer (Land
Conservancy) in the grade of Commissioner. In Ext.R2(a), it has been
stated thus:
. . . .
. W.P.(C) 28705/2009
13.10.2009
03.10.2009
.
.
W.ANo.2295/2009
.
W.P.(C) NO.28705/09 &
Connected cases 18
16.10.2009
. 15.09.2009
. . . .
14. It is thus obvious from the above extracted portion of Ext.R2
(a) that the second respondent took such decision on 22.10.2009 after
Ext.R2(d) interim order of this Court dated 16.10.2009 in
W.A.No.2295/2009 ordering status quo with respect to the occupancy of
the post of Deputy Commissioner (Administration). The interim order
dated 13.10.2009 in W.P.(C).NO.28705/2009 and the order dated
14.10.2009 in W.P.(C).NO. 28997/2009 would reveal that this Court
directed to retain the petitioner Sri.V.V.Ratheesan, as the Deputy
Commissioner (Administration) of Malabar Devaswom. According to
respondents 2 and 3, in the said circumstances as also in view of Ext.P2
judgment, they were compelled to take such a resolution ie., Ext.R2(a)
dated 22.10.2009 for the purpose of reinstating the petitioner as Deputy
Commissioner and to post him against a post which is absolutely
unconnected with the Parassinikadavu Muthappan Temple. According to
W.P.(C) NO.28705/09 &
Connected cases 19
the said respondents, as per Ext.P8 order dated 5.9.2009, the fourth
respondent was transferred and posted as Deputy Commissioner
(Administration) and therefore, the petitioner cannot aspire reinstatement
in that post especially in view of the specific directions in paragraph 14 of
Ext.P2 judgment. The said order could not have taken its effect in view of
the interim order dated 13.10.2009 in W.P.(C).NO.28705/2009 and the
interim order dated 14.10.2009 in W.P.(C).NO.28997/2009. As already
noticed, there cannot be any doubt regarding the reason for this Court in
putting a rider in the said judgment while directing for reinstatement. The
rider in Ext.P2 judgment in paragraph 14 thereunder was issued only
taking into account the facts and circumstances then available. At that
point of time, the disciplinary proceedings was pending against the
petitioner. In paragraph 15 thereunder, it was made clear that the
observations in Ext.P2 would have no effect whatsoever on the charges
that have been leveled against the petitioner. Admittedly, disciplinary
proceedings were initiated against the petitioner by the Government and
respondents 2 and 3 have no case that they have initiated any disciplinary
proceedings apart from the disciplinary proceedings initiated by the
W.P.(C) NO.28705/09 &
Connected cases 20
government, against the petitioner. In the said context, Ext.P4 assumes
relevance. Ext.P4 is an order passed by the government on 1.10.2009 in
the matter of disciplinary proceedings initiated against the petitioner.
Ext.P4 would reveal that the petitioner was exonerated off all the charges
levelled against him and he was reinstated in service as Deputy
Commissioner (Administration), Malabar Devaswom Board with
immediate effect. Further, the period of suspension was also ordered to be
treated as duty for all purpose including pension. Indisputably, the
disciplinary proceedings were initiated against the petitioner by the
Government and not by respondents 2 and 3 and therefore, it is well within
the powers of the Government to exonerate the petitioner from all the
charges leveled against him that formed the basis for initiation of action
against him. When once, the petitioner was exonerated off all the charges
leveled against him, there cannot be any impediment in reinstating the
petitioner to the post of Deputy Commissioner (Administration), Malabar
Devaswom Board and as it was while holding the said post that he was
placed under suspension. Being a delinquent facing various charges was
the reason that made this Court to put a rider in paragraph 14 of Ext.P2
W.P.(C) NO.28705/09 &
Connected cases 21
judgment. The effect of the observations in paragraph 15 would suggest
the same and therefore, after exoneration from all the charges, there cannot
be any justification to contend that the said rider should continue to be in
force as regards the right of the petitioner to be reinstated as Deputy
commissioner (Administration). In fact, the very direction in Ext.P2
judgment is to reinstate the petitioner as Deputy Commissioner. The
condition ‘ he will be posted in a suitable post, which has nothing to do
with the temple’ cannot therefore, be understood as a direction not to
reinstate the petitioner as Deputy Commissioner (Administration). It is a
fact that it was while holding the said post of Deputy Commissioner
(Administration) that the petitioner was posted in full additional charge of
the Special Officer for Parassinikkadavu Sree Madappura Muthappan
Sathanam Temple. The allegations levelled against him were also relating
the said period and relating the activities as its Special Officer. Therefore,
according to me, the rider in Ext.P2 judgment as mentioned above could
not have been taken as a restriction on reinstatement as Deputy
Commissioner (Administration) whilst it should have been taken only as a
restriction regarding his posting as Special Officer or some other posts
W.P.(C) NO.28705/09 &
Connected cases 22
having something to do with the Parassinikkadavu Sree Madappura
Muthappan Sathanam Temple. Thus it is obvious that the respondents 2
and 3 have also understood and taken the said rider in Ext.P2 judgment
only in that manner. In that context, it is relevant to note the following
recital in Ext.R2(a):-
" . W.P.(C).NO.
314/2009 14-
.
. . . .
"
At any rate, while the petitioner was placed under suspension as per G.O.
(RT) No.1034/2009/Rd dated 20.3.2009 he was holding the post of Deputy
Commissioner (Administration), Malabar Devaswom Board and, therefore,
according to me, the contentions of respondents 2 and 3 that by virtue of
the observations in Ext.P2, the petitioner could not have been reinstated as
Deputy commissioner (Administration) cannot be upheld. As already
noticed, this Court as per interim order dated 13.10.2009 in W.P.(C).NO.
28705/2009 directed to retain the petitioner as Deputy Commissioner
(Administration) of the Malabar Dewaswom Board. The question is
W.P.(C) NO.28705/09 &
Connected cases 23
whether Ext.P8 would stand in the way of such reinstatement. Ext.P8
order would reveal that the fourth respondent was transferred and posted
as Deputy Commissioner (Administration) Malabar Devaswam Board,
Kozhikode subject to the ratification of the Government. The relevant
portion in Ext.P8 pertaining to the fourth respondent runs as follows:
Sri.V.M.Damodaran, Asst.Commisioner, Kasaragod,
the senior most officer in the H.R & C.E (Admn.)
Department is transferred and posted as Deputy
Commissioner (Admn.), Malabar Devaswom Board,
Kozhikode, subject to the ratification of Government.
(emphasis supplied)
15. It would thus reveal that the transfer and posting of the fourth
respondent as Deputy Commissioner was ordered to be subject to the
ratification of the government. Evidently, as per Ext.P12 order in W.P.(C).
1039/2010 i.e, G.O dated 26.10.2009 the first respondent declined to grant
ratification for the aforesaid posting. The contention of the concerned
person i.e, Sri.V.M.Damodaran in W.P.(C).No.28997/2009 is that he was
promoted to the post of Deputy commissioner (Administration) as per
Ext.P8 order dated 5.9.2009 (Ext.P1 in W.P.(C).No.28997/2009).
W.P.(C) NO.28705/09 &
Connected cases 24
However, the contention of the respondents 2 and 3 runs counter to the
said contention. Respondents 2 and 3 relied on the definition of the term
‘Deputy Commissioner’ as defined under Section 6(7) of the Act and it
reads thus: “Deputy Commissioner” means the Deputy Commissioner
appointed under Sub-section (4) of Section 8(c). Sub-section 4 of Section
8(c) of the Act enables the Board to appoint such numbers of the Deputy
Commissioners necessary to discharge all the functions under the Act”.
Ext.P12 dated 24.1.2009 would reveal that there is only one post of
Commissioner and two posts of Deputy Commissioners ie., Deputy
Commissioner (Administration) and Deputy Commissioner (Law)
available under the Board. These are the two posts which were available
under the H.R. & C.E Department that were shifted to the Malabar
Devaswom Board pursuant to the abolition of H.R.& C.E Department.
Ext.P12 order dated 24.1.2009 did not reveal the existence of the post of
Special Officer (Land Conservancy) in the grade of Deputy commissioner
under the Devaswom Board. Ext.P13 is the order whereby the said post
was created and the same would reveal that it was a post initially created
for a period of one year. Its tenure was subsequently extended from time
W.P.(C) NO.28705/09 &
Connected cases 25
to time and Ext.P14 order would reveal that it had expired on 1.12.2007.
True that the respondents 2 and 3 have produced Ext.R2(c) i.e, the G.O
sanctioning a post of Special Officer (Land Conservancy) dated 12.1.2005.
The said order would reveal that certain other posts were sanctioned for
the purpose of conservation of the Devaswam lands thereunder and the
Special Officer appointed for the said purpose should supervise the
functioning of the aforesaid officers for the purpose mentioned in Ext.R2
(c). In the light of the specific contention of the petitioner in the light of
Exts.P12 and P14 that the post of Special Officer (Land Conservancy) in
the grade of Deputy Commissioner was created under the Devaswom
Board initially for a period of one year and the tenure of the same expired
by 1.12.2007. Poignantly and pointedly a specific question was put to the
learned counsel for respondents 2 and 3 as to whether there is any
subsequent order issued by the Government extending the term of the said
post. In fact, the said respondents could not make available any such order
passed by the Government. Government also have no case that the period
of the said post was subsequently extended and still it is in force.
Therefore, there is nothing on record to controvert the assertion of the
W.P.(C) NO.28705/09 &
Connected cases 26
petitioner, in the light of Exts.P12 and P14, that the said post was
originally created for a period of one year and its term had expired on
1.12.2007. So long as the respondents 2 to 4 failed to bring to my
attention that the said post was actually available and still available to
accommodate the petitioner in the grade of Deputy commissioner under
the Board, the only option available to this Court is to accept the
contentions made by the petitioner based on Exts.P12 and P14. As already
noticed, there are only two posts of Deputy Commissioners viz., Deputy
Commissioner (Administration) and Deputy Commissioner (Law) which
were shifted to the Malabar Devaswam Board by the Government on
abolition of the H.R.& ).E Department. The petitioner was the person
holding the post of Deputy Commissioner (Administration). He was
suspended while holding the said post and consequently, reinstated
pursuant to the order of this Court in Ext.P2 and the disciplinary
proceedings initiated against him were virtually dropped and he was
exonerated of all the charges by the Government and Government have
also issued a direction to reinstate the petitioner as Deputy Commissioner
(Administration). In such circumstances, relying on a condition put by this
W.P.(C) NO.28705/09 &
Connected cases 27
court in Ext.P2 judgment taking note of the pendency of the proceedings
initiated against the petitioner, at that point of time the respondents cannot
be heard to content that the petitioner is ineligible to get reinstated and
continued in the post of Deputy commissioner (Administration) under the
Malabar Devaswom Board.
16. As already noted, according to respondents 2 and 3 by virtue
of definition of Deputy Commissioner under section 6(7) and powers
under Section 8(c) of the H.R.& ).E Act, the Board is entitled to post or
appoint any person as Deputy Commissioner. The said contention of the
respondents 2 and 3 have to be analysed in the light of the facts obtained in
this case. As already noticed, the petitioner was the person who was
promoted and posted as Deputy Commissioner (Administration) and he
was holding the said post while he was placed under suspension. Apart
from the said post of Deputy Commissioner (Law) is the other post
available in the grade of Deputy commissioner. Admittedly, the fourth
respondent was an Assistant Commissioner and he was facing disciplinary
action. The contention of the respondents 2 and 3 that the fourth
respondent was not facing any disciplinary action cannot be
W.P.(C) NO.28705/09 &
Connected cases 28
countenanced. In fact, even going by the contention of the fourth
respondent, the charges levelled against him are false and flimsy which
would suggest continuance of such a proceedings against him. The very
order by which the fourth respondent was reinstated in service as Assistant
Commissioner would also make it clear that he was so ordered to be
reinstated by the government without prejudice to the continuance of the
disciplinary action. In such circumstances, I am at a loss to understand as
to how the respondents 2 and 3 could content that no disciplinary
proceedings are pending against the fourth respondent. In fact, after
Ext.P9 order of the Government ordering revocation of the suspension of
the fourth respondent and his reinstatement into the post of Assistant
Commissioner, the Board has issued Ext.P10 order. Ext.P10 would reveal
that as part of continuance of the disciplinary proceedings initiated against
the fourth respondent, the Deputy Commissioner (Administration) was
appointed as the Enquiry Officer. The said order is dated 4.7.2009. No
proceedings have been produced before this Court to show that subsequent
to Exts.P9 and P10 the disciplinary proceedings initiated against the fourth
respondent were culminated in his exoneration. No order dropping the
W.P.(C) NO.28705/09 &
Connected cases 29
proceedings was also produced by the respondent. That apart, the very
order would reveal that as on 4.7.2009, he was working as Assistant
Commissioner and the Deputy Commissioner (Administration) was
appointed as the Enquiry Commissioner against the petitioner. So long as
that order was not withdrawn, the 4th respondent could not have been
promoted/transferred and posted as Deputy Commissioner
(Administration). No relevant provision which enables the Board to
transfer and post an Assistant Commissioner as Deputy Commissioner was
also brought to my notice by respondents 2 to 4.
17. In the context of the aforesaid contentions, certain facts also
require consideration. Ext.P2 would reveal that besides the two posts of
Deputy Commissioners six posts of Assistant Commissioners were
available under the H.R & C.E Department and all these posts were shifted
to Malabar Devaswom Board. Based on Ext.P12, it is evident that
subsequent to the abolition of H.R & C.E Department those posts were
shifted to the Malabar Devaswom Board and, accordingly, besides two
posts of Deputy Commissioners, six posts of Assistant Commissioners are
also available under the Board. The respondents also did not dispute the
W.P.(C) NO.28705/09 &
Connected cases 30
said aspect. No provision or relevant orders are brought to my notice
which would make the posts of Deputy Commissioner and Assistant
Commissioner interchangeable or treating the said two categories as
equivalent categories. According to me, the post of Deputy Commissioner
can be regarded only as a promotion post of Assistant Commissioner. I am
fortified in my view by the averments of the respondents. In paragraph 6
of W.P.(C).NO. 28997/2009, the fourth respondent has stated as follows:
“Sub Section 4 of Section 8(c) of the Act enables the
Board to appoint such members of Deputy
Commissioners necessary for the discharge of the
functions under the Act. At present, there are two
Deputy Commissioners. One is Deputy Commissioner
(Administration) and two is Deputy Commissioner
(Law). The petitioner herein is the Deputy
Commissioner (Administration). The other Deputy
Commissioner (Law) is also junior to the petitioner”.
Paragraph 2 and 3 of W.P.(C).NO.906/2009 filed by the fourth respondent
also assumes relevance in this context.
“2. The fourth respondent and the petitioner were
in the category of Assistant Commissioner on
30.6.2004 whereas the fourth respondent was
promoted to the post of Assistant Commissioner only
on 16.8.2006.
3. The petitioner herein was placed under
suspension on flimsy charges for a period of three
years and he was re-instated in service as per theW.P.(C) NO.28705/09 &
Connected cases 31order dated 11.2.2009. It was during the period of
petitioner’s suspension that the fourth respondent was
promoted, overlooking the seniority of the petitioner.”
It is evident from the above extracted portions that only two posts of
Deputy Commissioners are available under the Malabar Devaswom Board
and promotion to the post of Deputy Commissioner is being effected from
the category of Assistant Commissioner. In the above context, the
sustainability of the contentions made on behalf of the respondents 2 to 4
that the fourth respondent was transferred and posted as Deputy
Commissioner (Administration) is to be looked into. Exts.P9 and P10
would reveal that the fourth respondent on revocation of suspension was
reinstated only as an Assistant Commissioner under the Devaswom Board.
It would also reveal that the Deputy Commissioner (Administration) was
appointed as the Enquiry Officer to conduct enquiry against the fourth
respondent. Though the fourth respondent described Ext.P1 as an order
granting him promotion, respondents 2 and 3 maintained the stand that it
was only a transfer and posting. No order promoting the fourth respondent
from the category of Assistant Commissioner to the post of Deputy
Commissioner was produced in any of these Writ Petitions. In fact, there
W.P.(C) NO.28705/09 &
Connected cases 32
is no such case for respondents 2 and 3. As already observed, no relevant
provision was brought to my notice which enables the respondents 2 and 3
to transfer an Assistant Commissioner and give posting to him as Assistant
Commissioner. In such circumstances, I am of the view that since the
petitioner was reinstated as Deputy Commissioner (Administration), there
was no place for the fourth respondent to be adjusted as Deputy
Commissioner even in case he was given promotion. In the light of the
long discussion as above, I have no doubt in my mind that the petitioner
who was reinstated based on Ext.P2 judgment and Ext.P4 order as Deputy
Commissioner should have been permitted to hold the post of Deputy
Commissioner (Administration) till 31.3.2010. Since Ext.P5 was already
varied by respondents 2 and 3 as is obvious from Ext.R2(a) and
appointment of the petitioner as Special Officer (Land Conservancy) could
not have effected, I am inclined to declare that the petitioner shall be
considered as having retired from the Board on 31.3.2010 as Deputy
Commissioner (Administration) and, accordingly, he shall be given all
consequential benefits expeditiously, at any rate, within a period of three
months from the date of receipt of a copy of this judgment. W.P.(C).
W.P.(C) NO.28705/09 &
Connected cases 33
NO.28705/2009 is accordingly, disposed of. W.P.(C).NOs.28997/2009,
1039/2010 and 906/2010 are liable to be dismissed in the above
circumstances and, therefore, they are dismissed.
(C.T. RAVIKUMAR, JUDGE)
spc
W.P.(C) NO.28705/09 &
Connected cases 34
C.T. RAVIKUMAR, J.
W.P.(C). NO. /2010
JUDGMENT
June, 2010
W.P.(C) NO.28705/09 &
Connected cases 35