Trustee vs State Of Kerala
2022 Latest Caselaw 12345 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
     FRIDAY, THE 23RD DAY OF DECEMBER 2022 / 2ND POUSHA, 1944
                        WP(C) NO. 26156 OF 2019
PETITIONER:

          TRUSTEE
          SREE VISALAKSHI SAMETHA VISWANATHA SWAMI TEMPLE,
          KALPATHI.P.O,PALAKKAD.
          BY ADVS.
          K.MOHANAKANNAN
          SRI.R.PADMARAJ
RESPONDENTS:

    1     STATE OF KERALA
          REP.BY ITS SECRETARY TO GOVERNMENT, REVENUE DEVASWOM
          DEPARTMENT, THIRUVANANTHAPURAM-695001.
    2     MALABAR DEVASWOM BOARD,
          REP BY ITS SECRETARY, HOUSE FED COMPLEX,
          ERANHIPALAM,KOZHIKODE-673006.
    3     THE COMMISSIONER,
          MALABAR DEVASWOM BOARD, HOUSE FED COMPLEX,
          ERANHIPALAM, KOZHIKODE-673006.
    4     THE ASSISTANT COMMISSIONER,
          MALABAR DEVASWOM BOARD,PALAKKAD-678001.
    5     S.VENKITASUBRAHMANI,
          S/O.K.V.SUNDARAM, RESIDNG AT 1/725, OLD KALPATHY,
          PALAKKAD-673003.
    6     ADDL.R6: RATHNA SABHAVATHI G.,
          KEEZHSANTHI, SREE VISALAKSHI SAMETHA VISWANATHA SWAMI
          TEMPLE, KALPATHI, PALAKKAD-678 003

          [ADDL.R6 IS IMPLEADED AS PER ORDER DATED 25.07.2022 IN
          I.A NO.1/22 IN WP(C) 26156/2019]
          SRI.V.K.SUNIL, SR.GP
          ADV.R.LAKSHMI NARAYAN, SC, MALABAR DEVASWOM BOARD
          SRI.T.C.SURESH MENON
          SRI.SUVIDUTT M.S
          SRI.P.S.APPU
          SRI.A.R.NIMOD
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 26156 OF 2019

                                        2


                     ANU SIVARAMAN, J
       ================================
                   W.P.(C).No.26156 of 2019
       ============= ===================
            Dated this the 23rd day of December, 2022

                                JUDGMENT

This writ petition is filed seeking the following prayer:

"i) To issue a writ of certiorari or any other appropriate writ or order or direction calling for the records leading to Ext.P2, P4 and P6 and quash the same"

2. Heard the learned counsel for the petitioner, the learned

Government Pleader, the learned standing counsel appearing for the

Malabar Devaswom Board, the learned counsel appearing for the 5 th

respondent as well as learned counsel appearing for the 6th respondent.

3. The petitioner is the Trustee of the Sree Visalakshi Sametha

Sree Viswanatha Swamy Temple, Kalpathy. It is contended that the 5 th

respondent had been engaged by the Melsanthi as a helper on daily

wages in the year 2005. He worked in the temple from 2005 to 2008

and then left the service. The 5th respondent raised a contention that he

had worked as Keezhsanthi on daily wages from 01.01.2001 and that

he had been absorbed with effect from 01.01.2005. He had taken leave WP(C) NO. 26156 OF 2019

for 7 days on medical grounds from 06.10.2008 and when he rejoined

duty on 13.10.2008, he was denied employment. The petitioner

contends that the 6th respondent had been appointed as Keezhsanthi.

However, the 5th respondent approached the Commissioner filing M.P.

No.1/2009 seeking reinstatement and the same was rejected by the

Commissioner by Ext.P1 proceedings. The 5th respondent took up the

matter in revision and by Ext.P2 order dated 29.04.2014, the

Government directed the consideration of the claim of the 5 th

respondent for reinstatement on humanitarian grounds. Thereafter, the

5th respondent approached this Court and by Ext.P3, the request for

implementation of Ext.P2 was directed to be considered after hearing

the petitioner as well as the 5th respondent. It is submitted that an order

has been passed on 09.03.2018 as Ext.P4 by the Commissioner

directing the reinstatement of the 5th respondent. The petitioner

challenged the said order in revision. But the same was dismissed by

Ext.P6 dated 27.08.2019. The petitioner challenges the orders passed

by the Commissioner and the Government and contends that the

direction to reinstate the 5th respondent in service is untenable in view WP(C) NO. 26156 OF 2019

of the fact that the 5th respondent was only a temporary employee

engaged by the then Melsanthi and he was not entitled to

regularization going by the order dated 25.06.2010 which is produced

as Ext.P7 since he does not meet the conditions provided therein.

4. The learned counsel for the petitioner submits that, in the

meanwhile, the petitioner had appointed the 6th respondent after

conduct of a due selection by a Selection Committee comprising of a

nominee of the Trustee, a nominee of the Department as well as the

Thanthri after inviting applications and conducting interviews. It is

stated that the Commissioner had ordered only the prospective

regularization of the 5th respondent and since there is no post to

accommodate the 5th respondent as the existing post of Keezhsanthi

had been filled up after conduct of due selection process by the

Committee appointed by the Commissioner for the purpose, the order

is bad in law and cannot be acted upon.

5. A detailed counter affidavit is placed on record by the 5 th

respondent. It is contended that contrary to what is stated in the writ WP(C) NO. 26156 OF 2019

petition, the 5th respondent had entered service in the year 2001 and

worked till 2004 as a helper to the Melsanthi. Thereafter, he was

appointed by the Trustee as Keezhsanthi with effect from 01.01.2005.

It is submitted that there was an existing post of Keezhsanthi available

in the schedule of establishment at the relevant time and though the 5 th

respondent's appointment was made on a temporary basis, the

petitioner by Ext.R5(a) proceedings dated 07.03.2005 requested the

Assistant Commissioner to regularize the services of the 5th

respondent. It is stated that in October, 2010, the petitioner had

availed 7 days of medical leave after submitting a leave application.

However, when he returned to rejoin service on 13.10.2008, he was

not permitted to rejoin duty. The 5th respondent immediately

approached the Commissioner and Ext.P1 order was passed. He took

up the matter before the Government in revision which resulted in

Ext.P2 and the subsequent orders. It is contended that since all the

aspects of the matter including the fact that another person had been

appointed as Keezhsanthi in 2018 had been considered by the

Commissioner and the Government, the petitioner is duty bound to WP(C) NO. 26156 OF 2019

comply with the orders and grant appointment to the 5th respondent. It

is contended that all the other contentions and allegations in the writ

petition are factually incorrect, since the Trustee himself, by Ext.R5(a)

proceedings, had requested the regularization of the service of the 5th

respondent.

6. The 6th respondent has also filed a counter affidavit. It is

submitted that the 6th respondent had been appointed to the sanctioned

post of Keezhsanthi by Ext.R6(a) appointment order dated

09.03.2018. It is submitted that the power to appoint vest with the

Trustee and the 6th respondent had been appointed by the Trustee

under Section 48(1) of the Madras Hindu Religious and Charitable

Endowments Act, 1951. It is contended that the 5 th respondent, who

was only an ad hoc temporary employee, cannot claim regularization

in service or any other benefit in view of the fact that the post claimed

by him stands occupied by the 6th respondent and that the writ petition

is therefore to be allowed setting aside the offending orders of the

Commissioner and the State Government.

WP(C) NO. 26156 OF 2019

7. The State has placed a counter affidavit on record contending

that the 5th respondent had been engaged as Keezhsanthi on daily

wages from 01.01.2001 and that even though he was absorbed as

Keezhsanthi with effect from 2005, he was dismissed from service on

2008 without giving him any chance for furnishing his explanation. It

is stated that he had availed leave for 7 days on medical grounds and

the leave was not granted and instead, his services were terminated. It

is further submitted that in the proposal to confirm the temporary staff

in permanent post in the temple signed by the petitioner on

07.03.2005, the 5th respondent's name was mentioned as Keezhsanthi

and that the same had been sent to the 4th respondent. It is further

contended that the 5th respondent is entitled to the protection of Ext.P7

order whereby temporary temple employees who had completed 3

years of service as on 02.01.2008 were regularized.

8. The Malabar Devawom Board has also filed a statement

contending that the orders under challenge were passed after hearing

the petitioner and after considering all his contentions including the

contention that a regular appointment had been made in the post of WP(C) NO. 26156 OF 2019

Keezhsanthi in March, 2018. It is submitted that though the 6 th

respondent had been appointed by the petitioner, the request for

regularization of the said appointment was kept pending since revision

petition of the 5th respondent was pending before the Government as

on the date when the appointment was given to the 6th respondent. It is

submitted that it was after considering all relevant aspects of the

matter that the 5th respondent who had, admittedly, been appointed by

the petitioner as Keezhsanthi was directed to be reappointed, since

there was no proper procedure followed in the termination of the 5 th

respondent's appointment.

9. Having considered the contentions advanced, I notice that

Ext.P1 order dated 22.10.2010 was passed dismissing the claim of the

5th respondent on the sole ground that there was nothing produced to

prove that the 5th respondent had been appointed as Keezhsanthi on

regular basis by the petitioner. In revision against the same, the

Government also found that the 5th respondent was only a provisional

recruit working on daily wages and cannot claim reinstatement as a

matter of right. However, the fact that he was working at the temple as WP(C) NO. 26156 OF 2019

Keezhsanthi from 01.01.2001 till 2008 was considered and it was

found that the temple was actually in need of services of a

Keezhsanthi. Therefore, the Commissioner was directed to take up the

case of the revision petitioner and find a solution in favour of the

revision petitioner. This order was passed as early as on 29.04.2014 as

Ext.P2. The 5th respondent approached this Court filing W.P.(C).

No.32616/2014 seeking implementation of Ext.P2 order and Ext.P3

judgment was rendered directing the Commissioner to consider the

question after hearing the petitioner and the 5 th respondent. It is

thereafter that Ext.P4 order dated 09.03.2018 was passed directing the

petitioner to appoint the 5th respondent as Keezhsanthi with

prospective effect. The contention of the petitioner is that, by the time

Ext.P4 order was passed, a selection was conducted as per the

directions of the Commissioner to fill up all vacant posts and the 6 th

respondent had been appointed as Keezhsanthi. It is further contended

that in Exts.P4 and P6 proceedings of the Government, the 5th

respondent was found entitled to the benefit of Ext.P7, which is

factually incorrect, since he was not in service as on the date of WP(C) NO. 26156 OF 2019

Ext.P7.

10. On a consideration of the contentions advanced on all sides, I

notice that Ext.P2 order of the Government was one rendered as early

as in the year 2014. When steps were not taken by the Commissioner

immediately to comply with the same, the 5th respondent had

approached this Court and had obtained Ext.P3 judgment. Thereafter,

Ext.P4 order was also passed on 09.03.2018 directing the

reappointment of the 5th respondent prospectively. The specific

finding in Exts.P4 and P6 orders are to the effect that even if the 5 th

respondent was not a regular employee of the petitioner, the petitioner

ought not to have dispensed with his services without following due

procedure. Though the learned counsel for the petitioner submits that

the claim of the 5th respondent stands negated in Ext.P1 order of the

Commissioner, I notice that Ext.P1 was passed rejecting the claim of

the 5th respondent only because there were no records forthcoming to

show the nature of his engagement. In Ext.P6, the request made by the

petitioner on 07.03.2005 to regularize the service of the 5th respondent

is specifically referred to. It is, admittedly, during the pendency of the WP(C) NO. 26156 OF 2019

proceedings for considering the claim of the 5th respondent for

reinstatement that the 6th respondent had been engaged with effect

from 09.03.2018. The claim of the 6th respondent for sanction and

inclusion of his name in the schedule of establishment has also not

been considered in view of the fact that the claim of the 5 th respondent

for appointment as Keezhsanthi was pending adjudication.

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

contention that the 5th respondent was not entitled to the benefit of

Ext.P7 order will not come to the aid of the petitioner to contend that

the impugned orders are bad in law. There is a specific finding both in

Ext.P4 and Ext.P6 that the petitioner had been appointed against the

existing post of Keezhsanthi in the temple atleast with effect from

01.01.2005. In Ext.P2 order of the Government, the claim of the 5th

respondent that he had worked from 01.01.2001 onwards was

accepted. Ext.P2 order was not challenged by the petitioner and was

allowed to become final. It is only after Ext.P6 order has been

rendered that a challenge has been raised belatedly as against Ext.P2.

In the above factual situation, I am of the opinion that the prayers WP(C) NO. 26156 OF 2019

sought for in the writ petition cannot be allowed. The writ petition

thus fails and the same is, accordingly, dismissed. The petitioner shall

implement the orders of the Malabar Devaswom Board. However, in

case there is any other vacant post available to accommodate the 6th

respondent, the 6th respondent shall be accommodated by the

petitioner against the said post.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE NP WP(C) NO. 26156 OF 2019

APPENDIX OF WP(C) 26156/2019

PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORDER IN MP 1/2009 DATED 22.10.2010 ISSUED BY THE 3RD RESPONDENT EXHIBIT P2 TRUE COPY OF THE ORDER DATED 29.4.2014 PASSED BY THE 1ST RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN WRIT PETITION NO.32616/2014 DT.8.11.2017 EXHIBIT P4 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 9.3.2018 EXHIBIT P5 TRUE COPY OF THE REVISION PETITION DATED APRIL/2018 WITH STAY PETITION FILED BY THE PETITIONER BEFORE THE GOVERNMENT EXHIBIT P6 TRUE COPY OF THE GO(RT)NO.2375/2019.REV.D.DATED 27.08.2019 EXHIBIT P7 TRUE COPY OF THE ORDER PASSED BY THE COMMISSIONER,MALABAR DEVASWOM BOARD DATED 25- 6-2010 EXHIBIT P8 TRUE COPY OF THE BROCHURE PUBLISHED BY VALLIYAPADAM PUTHUPALAYAM AYYAPPA TEMPLE.

EXHIBIT P9 TRUE COPY OF THE NOTICE PUBLISHED BY THE TRUSTEE DATED 27-9-2017.

EXHIBIT P10 TRUE COPY OF THE PROCEEDING OF THE ASSISTANT COMMISSIONER DATED 19-12-217 WITH REQUEST OF THE PETITIONER DATED 6-12-2017.

EXHIBIT P11 TRUE COPY OF THE MINUTES OF MEETING DATED 2-

3-2018.

RESPONDENTS' EXHIBITS EXHIBIT R5(a) TRUE COPY OF THE LETTER ADDRESSED BY THE PETITIONER TO THE 4TH RESPONDENT DATED 7/3/2005.

EXHIBIT R5(b) TRUE COPY OF THE RELEVANT PAGE OF THE MUSTER ROLL MAINTAINED BY THE TEMPLE FOR THE MONTH OF OCTOBER, 2008.

Exhibit R6(a) A TRUE COPY OF THE LETTER OF APPOINTMENT BEARING NO. KVST 1/18(2) DATED 09.03.2018 WITH ENGLISH TRANSLATION.