Manikandan M vs Malabr Devaswom Board
2021 Latest Caselaw 12551 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                 THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
         WEDNESDAY, THE 26TH DAY OF MAY 2021 / 5TH JYAISHTA, 1943
                         WP(C) NO. 22096 OF 2020
PETITIONER :-

             MANIKANDAN M., AGED 51 YEARS
             S/O. NARAYANAN, MUNDAMKUZHIYIL VEEDU, KATTUKULAM P.O.,
             PALAKKAD-679514.

            BY ADVS.
            SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
            SRI.A.R.DILEEP
            SRI.P.J.JOE PAUL
            SRI.MANU SRINATH


RESPONDENTS :-

     1       MALABR DEVASWOM BOARD,
             REPRESENTED BY ITS COMMISSIONER/SECRETARY,
             HOUSEFED COMPLEX, MINI BYPASS ROAD, ERANHIPPALAM,
             KOZHIKODE, KERALA-673006.

     2       COMMISSIONER,
             MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX,
             MINI BYPASS ROAD, ERANHIPPALAM, KOZHIKODE, KERALA-673006.

     3       ASSISTANT COMMISSIONER,
             MALABAR DEVAVASWOM BOARD, HOUSEFED COMPLEX,
             MINI BYPASS ROAD, ERANHIPPALAM, KOZHIKODE, KERALA-673006.

     4       SREE PARIYANAMPATTA DEVASWOM,
             KATTUKULAM P.O., PALAKKAD DISTRICT, KERALA-679514,
             REPRESENTED BY ITS MANAGER.

  ADDL.5     STATE OF KERALA,
             REPRESENTED BY THE SECRETARY, DEVASWOM DEPARTMENT,
             SECRETARIAT, THIRUVANANTHAPURAM-695001.
             (IMPLEADED AS PER ORDER IN IA 1/2021 DATED 15-2-2021).

            BY ADVS.
            SRI.R.LAKSHMI NARAYAN
            SRI.K.MOHANAKANNAN
            SRI.BIJOY CHANDRAN, SR.GP

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.3.2021,
THE COURT ON 26.5.2021 DELIVERED THE FOLLOWING:
 WP(C) NO. 22096 OF 2020

                                      -: 2 :-

                                  JUDGMENT

The prayers in this writ petition are as follows :-

"i) Declare that Ext.P2 notification issued by the 4th respondent is illegal and void in so far as it prescribes the maximum age limit for applying towards the post of 'Adichuthali'/'Kathinavedipottikkal' as 40 years.

ii) Issue a writ of certiorari or any other appropriate writ or direction for setting aside and quashing Ext.P2 notification issued by the 4th respondent as illegal and void in so far as it prescribes the maximum age limit for applying towards the post of 'Adichuthali'/ 'Kathinavedipottikkal' as 40 years.

iii) Issue a writ of Mandamus or any other appropriate writ or direction commanding the 4th Respondent to accept Ext.P4 application and consider the petitioner towards the post of 'Adichuthali'/'Kathinavedipottikkal' in terms of the applicable law and on merit."

2. Heard Sri.George Varghese Perumpallikuttiyil, the

learned counsel for the petitioner, Sri.R.Lakshmi Narayan, the

learned Standing Counsel appearing for the Malabar Devaswom

Board and Sri.K.Mohanakannan, the learned counsel for the 4 th

respondent.

3. The learned counsel for the petitioner contends that the

petitioner, who has crossed 50 years of age, has been working as WP(C) NO. 22096 OF 2020

Sweeper in the 4th respondent temple since 2016. It is submitted

that the 4th respondent has issued Ext.P2 notification for filling up

the post of 'Adichuthali/Kathinavedipottikkal' inviting applications

from persons aged between 18 to 40. It is contended that the

fixing of upper age limit is violative of the provisions of the Rules

made under Section 100(2)(y) of the Madras Hindu Religious and

Charitable Endowments Act, 1951 (hereinafter referred to as the

'Act, 1951' for short) as well as Ext.P3 circular issued by the 1 st

respondent. It is submitted that Rule 4(2) of Part I of the Madras

Hindu Religious and Charitable Endowments Rules, 1951 (for

short, 'the Rules, 1951) made under Section 100(2)(y) of the Act,

1951 states as follows :-

"(2) Except in the case of a hereditary officer or servant, no person may be appointed to or hold any office unless he is not less than eighteen and not more than sixty-five years of age."

Thus the maximum age stipulation in Ext.P2 runs contrary to

statutory rule and is thus illegal to that extent. It is submitted that

the petitioner is entitled, under Article 14 of the Constitution of India,

for being considered eligible for the post of 'Adichuthali'/

'Kathinavedipottikkal' as per the existing statutory framework and WP(C) NO. 22096 OF 2020

Ext.P2, in so far as it denies this entitlement, plays foul on the

guaranteed right to equality and right against discrimination

enshrined in the Constitution of India.

4. A statement has been filed by the 1 st respondent.

Paragraph 7 of the statement reads as follows :-

"7. It is submitted that, a reading of the above provision would only indicate that none, who is below 18 and above 60 can be appointed as an employee of the temple; unless he/she is a hereditary officer or servant. It does not necessarily follow from the Rule that in issuing a notification for fresh appointment, the age specified would have to be between 18 and 65. It would also be in appropriate to give such an interpretation to the above provision, since no fresh appointment of a person having 59 years of age, could be made. In all appointments made in a temple, the temple authorities would have the power to decide on, the minimum and maximum age for such fresh appointment, which shall not be less than or exceed that provided in the sub-rule (2) of Rule 4 of the Rules. The tenure prescribed under sub-rule (2) is only to indicate the period of office, which a person appointed, would be entitled to be continued, and not a requirement for intitial appointment as such. The rule only specifies the normal tenure of an employee, to be continued in a temple. Ext.P2 notification indicates the zone of consideration for appointment to be between 18 to 40 years of age, and as such there is no arbitrariness in such prescription."

It is further contended that an identical issue was considered by WP(C) NO. 22096 OF 2020

this Court in Ext.R1(1) judgment dated 3.11.2015 in W.P.(C)

No.17976/ 2015 where, it has been held that temple authorities

would have power to decide on the minimum and maximum age for

appointment to individual posts provided it is within the age

provided by the Rules.

5. The 4th respondent has also placed a counter affidavit on

record. It is stated that the petitioner was never appointed as

Sweeper in the temple and that he had been engaged only to

regulate traffic on busy days on daily wages in September, 2018

and the schedule of establishment is produced to show that he was

not an employee of the temple at all. It is submitted that taking

note of the nature of duties attached to the notified posts, the

Devaswom found it desirable to engage persons aged between 18

and 40 in the best interests of the temple, which is well within

their discretion.

6. The petitioner has filed reply affidavits as well.

7. After having considered the contentions advanced on all

sides, I find that the prescription of upper age of 40 years for

applying for the post of 'Adichuthali/Kathinavedipottikkal' in the WP(C) NO. 22096 OF 2020

temple cannot be held to be violative of the petitioner's

fundamental or legal rights. This Court has already held that it is

well within the discretion of the appointing authority to decide the

desirable age for a person to apply for a post, taking into account

the nature of the duties involved. In the instant case, the

petitioner has no preferential claim for appointment to the notified

post.

In the above factual situation, I am of the opinion that

the prayers as sought for cannot be granted. The writ petition fails

and the same is, accordingly, dismissed.

Sd/-

ANU SIVARAMAN JUDGE

Jvt/20.4.2021 WP(C) NO. 22096 OF 2020

APPENDIX OF WP(C) 22096/2020

PETITIONER ANNEXURE

EXHIBIT P1 A TRUE COPY OF SALARY CHEQUES ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.

EXHIBIT P2 A TRUE COPY OF THE NOTIFICATION DATED 01/10/2020 ISSUED BY 4TH RESPONDENT.

EXHIBIT P3 A TRUE COPY OF THE CIRCULAR DATED 10/04/2014 ISSUED BY THE 1ST RESPONDENT MALABAR DEVASWOM BOARD.

EXHIBIT P4 A TRUE COPY OF THE APPLICATION DATED 12/10/2020 SUBMITTED BY THE PETITIONER TOWARDS THE POST OF ADICHUTHALI/ KATHINAVEDIPOTTIKKAL AS ADVERTISED UNDER EXT.P2 NOTIFICATION ALONG WITH THE 10TH PASS CERTIFICATE AND THE RECEIPT ISSUED BY THE 4TH RESPONDENT.

RESPONDENT'S ANNEXURES :-

ANNEXURE R1(1) :- THE PHOTOCOPY OF THE JUDGMENT DATED 3.11.2015 IN WP(C) No.17976/15.

EXHIBIT R4(a) : TRUE COPY OF THE VOUCHER ISSUED TO THE PETITIONER SHOWS THAT HE WAS PAID Rs.2,400/- ON 01/10/2018.

EXHIBIT R4(b) : TRUE COPY OF THE SCHEDULE ESTABLISHMENT OF SREE PARIYANAMPATTA BHAGAVATHI DEVASWOM.

//TRUE COPY//

P.A. TO JUDGE