Kerala High Court
Philip K.J vs The State Of Kerala on 10 May, 2022
W. P. (C). No. 1614 of 2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 10TH DAY OF MAY 2022 / 20TH VAISAKHA, 1944
WP(C) NO. 1614 OF 2021
PETITIONER:
PHILIP K.J.
AGED 55 YEARS, S/O JOSEPH, ,
KAPPAMALAYIL, VADAKARA P O,
THALAYOLAPARAMBU, KOTTAYAM
(SECRETARY, COUNCIL FOR SOCIAL JUSTICE,
BUILDING NO.19,MANGANAM PO, KOTTAYAM-686018)
BY ADVS.
SRI C.S.MANILAL
SRI.S.NIDHEESH
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE PRINCIPAL SECRETARY TO GOVERNMENT
PERSONAL AND ADMINISTRATIVE REFORMS DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM-695001.
3 C.S.I., CENTRAL KERALA DIOCESE,
REPRESENTED BY THE BISHOP SABU K CHERIAN,
BISHOP HOUSE, CHALUKUNNU, KOTTAYAM, PIN-680586.
4 THE SECRETARY, C.S.I,CENTRAL KERALA DIOCESE,
BISHOP HOUSE, CHALUKUNNU, KOTTAYAM, PIN-680586.
5 GIREESH K PREMJI
KUNNUMPURATH HOUSE, MUTTAMBALAM P O, KOTTAYAM-
686004.
6 ISSAC N J, NADUPPARAMBIL,
MUTTAMBALAM P O, KOTTAYAM - 686004.
7 JOHN ISSAC
KUNNEL HOUSE, PAKKIL P O, KOTTAYAM, PIN-686012.
8 BAIJU C JACOB
EDAMANA HOUSE, MUTTAMBALAM P O, KOTTAYAM , PIN-
686004.
9 ASHA BINU
H S S T, CMS HSS, MALLAPPALLY P O,
W. P. (C). No. 1614 of 2021 2
PATHANAMTHITTA-689587.
10 MARYKUTTY JOSEPH
KOOROTHPARAMBIL, RUBBER BOARD P O, KOTTAYAM-686009.
11 KURIAN DANIEL
L P S A, CMSHS, NEDUNGADAPPALLY, PERUMBRAMAVU P O,
KEEZHVAIPOOR, MALLAPPALLY, PATHANAMTHITTA, PIN-
689587.
*ADDL. R12 TO R17 IMPLEADED
ADDL. R12 THE SECRETARY TO GOVT.,
REVENUE DEPARTMENT, SECRETARIAT, TRIVANDRUM.695
001.
ADDL. R13 THE SECRETARY TO GOVT.,
HIGHER SECONDARY EDUCATION DEPARTMENT, SECRETARIAT,
TRIVANDRUM 695 001.
ADDL. R14 THE SECRETARY TO GOVT.,
SURVEY AND LAND RECORDS DEPARTMENT,
SECRETARIAT, TRIVANDRUM 695 001
ADDL. R15 THE SECRETARY TO GOVT.,
GENERAL EDUCATION DEPARTMENT,
SECRETARIAT, TRIVANDRUM.695 001.
ADDL. R16 THE SECRETARY TO GOVT.,
HEALTH DEPARTMENT, SECRETARIAT, TRIVANDRUM.695 001.
ADDL. R17 THE CHAIRMAN,
KERALA STATE ELECTRICITY BOARD LTD,
VYDUTI BHAVAN, PATTOM, TRIVANDRUM 695 004
*ADDL R12 TO R17 IMPLEADED AS PER ORDER DATED 29-
01-2021 IN IA 1/2021 IN WP(C)1614/21
BY ADVS.
SRI.SAJI MATHEW
SRI.R.T.PRADEEP
SRI.S.SUBHASH CHAND
DR.K.P.PRADEEP
SRI.T.T.BIJU
SRI.K.C.HARISH
SRI.DENU JOSEPH
SHRI.BIBIN BABU
SRI.VIPIN NARAYAN, GOVT. PLEARDER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 15.03.2022, THE COURT ON 10.05.2022 DELIVERED THE
FOLLOWING:
W. P. (C). No. 1614 of 2021 3
T.R. RAVI, J.
--------------------------------------------
W. P. (C). No.1614 of 2021
--------------------------------------------
Dated this the 10th day of May, 2022
JUDGMENT
The writ petition has been filed seeking a direction to
respondents 1 and 2 to consider Ext.P8 request and to take
emergent action against respondents 5 to 11 in accordance with
Ext.P1 Rules and for a further direction to respondents 1 and 2 to
prohibit respondents 3 and 4 from allowing full-time Government
servants from standing and contesting the election to the various
Bodies of the CSI Sabha in violation of Ext.P1 Rules.
2. According to the petitioner, the 3 rd respondent, which is
the CSI Central Kerala Diocese, is a religious congregation
following the Christian faith and the organisation has been
registered as a non-trading company under the Companies Act.
The petitioner is a member of the Sabha ever since he attained
majority and is the Secretary of the Trust known as the Council for
Social Justice, fighting against injustice in the society. The
petitioner submits that the governance and administration of the
Sabha are at two levels. At the grass-root level of the local
Church, there is a Church committee and there is an Apex Body
which is called the Diocese Council. The election is conducted to
the Church Committee as well as to the Diocese Council. The
Diocese Council is presided by the Bishop. The Sabha is having
colleges, schools, hospitals, retreat centers and other non-religious
institutions and the governance is controlled and directed by the
elected Council. The petitioner submits that for the past several
years, there is a tendency of Government servants to contest in
the elections of the Council and by virtue of their official positions
there is a likelihood of corruption and nepotism under the cover of
the membership in the council. To curb such activities, the 1 st
respondent had amended the Kerala Government Servants
Conduct Rules, 1960 (1960 Rules for short) in 2014 by adding Rule
67A. Ext.P1 is the amended Rule as published in the official
gazette. The Rule reads thus:
"67A. Taking part in communal or religious activity -
(1) No Government servant shall be an office-bearer of any
communal or religious organisation or of such trust or
society.
(2) A Government servant shall, within one month of his
assuming charge as an office bearer of any scientific, literary
or charitable society or of such trust or organisation, inform
the Government regarding the assumption of charge and if in
the opinion of the Government his continuance as such office
bearer is not in public interest, he shall resign from such
office.
(3) No Government servant shall, while associating himself
with any society, trust or organisation referred to in sub-rule
(2) take part in any activity that involves collection of money
or accept any subscription or other pecuniary assistance from
any person or public or private entity."
3. The petitioner submits that one Mathew Joseph who was
a Legal Officer of the Law Department violated the above conduct
Rules and contested in the election and continued to hold the post
of a Councillor in the diocese council. A writ petition was filed,
which was disposed of by Ext.P2 judgment directing the
Government to take appropriate action. The Government thereafter
issued Ext.P3 order whereby Sri Mathew Joseph was punished for
misconduct by the imposition of a minor penalty. The finding in
Ext.P3 order was that there is a violation of Rule 67A of the Kerala
Government Servants Conduct Rules, 1960, and Shri Mathew
Joseph was directed to abstain from continuing as an office-bearer
of CSI East Kerala Diocese and report forthwith. The petitioner
submits that in similar circumstances by Ext. P4 judgment the
Madras High Court had also interdicted Government servants from
participating in the election of CSI Church. The petitioner submits
that the petitioner had made Ext.P5 request to the 3 rd respondent
to instruct the Election Officers not to allow the Government
servants to contest the election to the CSI Council. Ext.P6 is the
information received under the Right to Information Act, wherein
the Public Information Officer has informed the applicant that as
per G.O.(P)No.27/2014/PNARD, the Government servants are
prohibited from holding any post in the management of any
religious or communal organisations even though they can act as
members. The Government order referred to is Ext.P1 amendment
to the Kerala Government Servants Conduct Rules. The petitioner
submits that under Chapter 14B Rule 5 of the Kerala Education
Rules(KER for short), no teacher shall, except with the previous
sanction of the Government take part in the promotion,
registration or management of any bank or company. It is
submitted that the Sabha is a company and will come within the
prohibition. The writ petition was filed alleging that the election to
the CSI Council is going to be finalised by 30 th January 2021.
Respondents 5 to 8 are Government servants to whom Ext.P1 is
applicable. Respondent is working as a Deputy Tahsildar, Revenue
Recovery, Kottayam, the 6th respondent is a government servant,
the 7th respondent is a Surveyor under the Survey Department, the
eighth respondent is a clerk in the Health Department, the 9 th
respondent is a Higher Secondary School Teacher in an aided
school, the 11th respondent is a Lower Primary School Assistant in
an aided school and the 10 th respondent is the Headmistress in an
unaided Higher Secondary School. The petitioner submits that
respondents 5 to 11 are disqualified to contest in the election. The
petitioner had submitted Ext.P8 representation to the 2 nd
respondent, which is the nodal department, to take action
regarding the violation of conduct rules. The petitioner submits
that no action has been taken on Ext.P8 so far. The writ petition
has been filed in the above circumstances. The petitioner has
thereafter filed I.A.No.2 of 2021 producing Exts.P9 to P14 as
additional documents, which are representations made complaining
about the violation of conduct rules by respondents 5 to 11, before
additional respondents 12 to 17, who are superior officers of
Respondents 5 to 11 and were sought to be impleaded in I.A.No.1
of 2021.
4. The 9th respondent has filed a counter-affidavit stating
that she is a teacher who is governed by Chapter 14 C of the
Kerala Education Rules and Ext.P1 Rules will not apply to aided
school teachers like the 9 th respondent. It is submitted that the
Conduct Rules relating to teachers do not contain a rule which is
similar to Rule 67A of the 1960 Rules. A counter affidavit has been
filed on behalf of respondents 5 to 8 and 10. They submit that they
and their predecessors who are following Christian religion, have
been and are members of Madhya Kerala Diocese of Church of
South India, for the last several generations. It is submitted that
the CSI is a minority religious denomination of Christians as
envisaged under Articles 26A, 29 and 30 of the Constitution of
India. It is submitted that the petitioner is a stranger to the
Conditions of Service of Government Servants and hence cannot
seek enforcement of the conditions of service which is in the realm
of service jurisprudence. The counter-affidavit further states that
the word 'religious organisation' has not been defined in the rules.
It is submitted that there is no total ban for Government servants
to be office bearers of societies, trust or organisation and the
requirement is only to inform the Government about such
membership. It is also contended that a religious organisation or
community organisation or such trust or society which will not
come under any regulatory mechanism by virtue of an existing law
alone can come under the contemplation of a total ban under Rule
67A(1). It is submitted that the minority religious denomination to
which the respondents belong has constitutional protection and its
legal entity is the South Kerala Trust Association which is a
company for the promotion of religion as envisaged under the
Companies Act, 2013 and subject to the regulatory mechanism
provided under the Constitution and the Companies Act and hence
will not fall under the domain of religious organisation under rule
67A(1). Reference is also made in the counter affidavit to the
decisions of the Hon'ble Supreme Court, whereby the fundamental
right of minority religious denominations to establish and
administer religious, charitable, and educational institutions have
been upheld. The respondents also contend that the petitioner
does not have an indefeasible right to preclude them from
contesting elections to the offices under the Diocese as part of
their religious duty, particularly when there is no conflict of interest
with their duty as government employees or otherwise.
5. The respondents 3 and 4 have filed a detailed counter-
affidavit. It is stated that the 3rd respondent is a religious
denomination following the Christian faith and not a religious
organisation as alleged. It is further stated that the averment that
the CSI Church has been registered as a non-trading company with
the Companies Act is not correct. It is submitted that the
properties both movable and immovable, of the CSI, are held by a
company by the name Church of South India Trust Association
(CSITA), and the said company is administering and supervising
the same and ensuring that the income arising therefrom is
properly applied solely for the objects and purposes of the Church
of South India. It is submitted that the CSITA was registered in
September 1947 under Section 26 of the Indian Companies
Act,1913 as a religious and charitable company that has no
business character and has no profit motive. It is further submitted
that the election to the executive committee and Synod from
among the members of the diocese and council is already over and
the respondents 5 to 11 had not contested the election. It is
submitted that the second relief in the writ petition cannot be
sought for by the petitioner and if the said relief is granted it will
have the effect of interfering with the constitutional protections
guaranteed to the 3rd respondent as a minority institution. It is
contended that the petitioner has no right to decide on who should
administer the church or who should be elected to the Diocesan
Council and that Rule 67A cannot override the provisions of the
Constitution of India. It is submitted that the CSI Church and the
CSITA are separate legal entities. It is stated that CSI Church
consists of 24 Diocese spread across South India and each diocese
has a Bishop, executive committee, and Diocesan Council. It is
submitted that each Diocese has its own constitution and is subject
to the constitution of the CSI and that the Diocesan Council is the
lawmaking body of each diocese subject to the provisions of the
Constitution of CSI. It is further submitted that the 3 rd respondent
is not the owner of colleges, schools, or other establishments and
such institutions are under the ownership of the CSITA. It is
contended that Rule 67A applies only to Government servants and
not to any other person or legal entity and no prohibitory order can
be issued against any person other than the Government servant
based on such Rules. It is contended that if a government servant
violates any of the Service Rules, he will be answerable and no one
else.
6. The petitioner has filed I.A.No.3 of 2021 producing the
memorandum of association of the CSITA and the member list and
contact numbers of the Diocesan Council as Exts. P15 and P16. It
is pointed out in Ext.P16 that the 5th and 6th respondents are
members of the Kottayam council. Ext.P17 produced by the
petitioner is the Constitution of the CSI Central Kerala Diocese
which is the 3rd respondent.
7. Advocate Sri C.S.Manilal, appearing for the petitioners
refers to Rule 67A and submits that there is a total prohibition of
any Government Servant being an office-bearer of any communal
or religious organisation or of such trust or society. It is submitted
that the intention of the Government is clear on a mere reading of
the Rule, that what is prohibited is becoming an office-bearer of
any Body which has a communal or religious colour. It is
submitted that the CSI Sabha is an organisation which is a
religious character. On the question whether a Sabha is a religious
denomination, the counsel refers to the judgment of a Seven-
Member Bench of the Hon'ble Supreme Court in The
Commissioner, HRE, Madras v. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt [AIR 1954 SC 282]. In paragraph
15 of the judgment, the Hon'ble Supreme Court considered the
meaning of the expression religious denomination, which is
extracted below.
"15. As regards Article 26, the first question is, what is the
precise meaning or connotation of the expression "religious
denomination" and whether a Math could come within this
expression. The word "denomination" has been defined in
the Oxford Dictionary to mean "a collection of individuals
classed together under the same name: a religious sect or
body having a common faith and organisation and designated
by a distinctive name". It is well known that the practice of
setting up Maths as centres of theological teaching was
started by Shri Sankaracharya and was followed by various
teachers since then. After Sankara, came a galaxy of
religious teachers and philosophers who founded the different
sects and sub-sects of the Hindu religion that we find in India
at the present day. Each one of such sects or sub-sects can
certainly be called a religious denomination, as it is
designated by a distinctive name, -- in many cases it is the
name of the founder, -- and has a common faith and
common spiritual organisation. The followers of Ramanuja,
who are known by the name of Shri Vaishnabas, undoubtedly
constitute a religious denomination; and so do the followers
of Madhwacharya and other religious teachers. It is a fact
well established by tradition that the eight Udipi Maths were
founded by Madhwacharya himself and the trustees and the
beneficiaries of these Maths profess to be followers of that
teacher. The High Court has found that the Math in question
is in charge of the Sivalli Brahmins who constitute a section
of the followers of Madhwacharya. As Article 26 contemplates
not merely a religious denomination but also a section
thereof, the Math or the spiritual fraternity represented by it
can legitimately come within the purview of this article.
8. On the question as to what constitutes "matters of
religion", to which Clause (b) of Article 26 applies, the Court held in
paragraph 17 as follows;
"17. It will be seen that besides the right to manage its own
affairs in matters of religion, which is given by clause (b), the
next two clauses of Article 26 guarantee to a religious
denomination the right to acquire and own property and to
administer such property in accordance with law. The
administration of its property by a religious denomination has
thus been placed on a different footing from the right to
manage its own affairs in matters of religion. The latter is a
fundamental right which no legislature can take away,
whereas the former can be regulated by laws which the
legislature can validly impose. It is clear, therefore, that
questions merely relating to administration of properties
belonging to a religious group or institution are not matters
of religion to which clause (b) of the article applies. What
then are matters of religion? The word "religion" has not
been defined in the Constitution and it is a term which is
hardly susceptible of any rigid definition. In an American
case [ Vide Davis v. Benson, 133 US 333 at 342] it has been
said "that the term 'religion' has reference to one's views of
his relation to his Creator and to the obligations they impose
of reverence for His Being and character and of obedience to
His will. It is often confounded with cultus of form or worship
of a particular sect, but is distinguishable from the latter". We
do not think that the above definition can be regarded as
either precise or adequate. Articles 25 and 26 of our
Constitution are based for the most part upon Article 44(2) of
the Constitution of Eire and we have great doubt whether a
definition of "religion" as given above could have been in the
minds of our Constitution makers when they framed the
Constitution. Religion is certainly a matter of faith with
individuals or communities and it is not necessarily theistic.
There are well known religions in India like Buddhism and
Jainism which do not believe in God or in any Intelligent First
Cause. A religion undoubtedly has its basis in a system of
beliefs or doctrines which are regarded by those who profess
that religion as conducive to their spiritual well being, but it
would not be correct to say that religion is nothing else but a
doctrine or belief. A religion may not only lay down a code of
ethical rules for its followers to accept, it might prescribe
rituals and observances, ceremonies and modes of worship
which are regarded as integral parts of religion, and these
forms and observances might extend even to matters of food
and dress."
9. Reference is then made to the decision in Sri Adi
Visheshwara of Kashi Vishwanath Temple, Varanasi v. State
of UP & Ors. [(1997) 4 SCC 606] which follows Shirur Mutt
(supra). The Apex Court held that the word 'denomination'
means the collection of individuals or class together under the
same name, a religious group or body having a common faith and
organisation and designated by a distinctive name. After referring
to several other cases, the Apex Court held that the expression
"religious denomination" must satisfy three conditions, namely, (1)
the collection of religious faith, a system of belief that is conducive
to spiritual well-being, i.e., a common faith; (2) common
organisation and (3) designation by a distinctive name. This view
has been noticed and reiterated in a later judgment of the Hon'ble
Supreme Court in Indian Young Lawyers Association and
others v. State of Kerala and others 2018(4) KLT 373 in
paragraph 92. The counsel submits that no distinction can be
drawn between the words "religious organisation" and "religious
denomination", since going by the decisions of the Hon'ble
Supreme Court, the denomination is necessarily a religious
organisation. It is hence submitted that whether the Sabha
chooses to call itself an organisation or a denomination, Rule 67A
will apply to Government servants who seek to hold an office in
such Sabha. Counsel then refers to Articles 25 and 26 of the
Constitution of India and submits that Article 25 is a right available
to a person to freely profess, practice, and propagate a religion,
while Article 26 is a right of a religious denomination or any section
thereof to establish and maintain institutions for religious and
charitable purposes, to manage its own affairs in matters of
religion, to own and acquire movable and immovable property and
to administer such property in accordance with the law. It is
submitted that Rule 67A does not in any manner violate Article 26,
since none of the rights of CSI Sabha have been taken away. The
restriction is only on Government servants becoming office-bearers
of such religious organisations which is something personal to the
Government servants and subject to any restriction placed under
Article 25. Reference is made to the Constitution Bench judgment
in Sri Venkataramana Devaru and Ors. v. State of Mysore &
Ors. [AIR 1958 SC 255], wherein the Hon'ble Supreme Court
held that the restrictions which can be imposed under Article 25
(2)(b) will apply to Article 26 also. The Hon'ble Supreme Court
considered the expression "matters of religion" in Article 26(b).
The Court held that Article 25(b) applies in terms to all religious
institutions of a public character without qualification or reserve.
The Court was considering whether the right of a religious
denomination to manage its own affairs in matters of religion
which is guaranteed under Article 26(b) is subject to and can be
controlled by a law protected by Article 25(2)(b) throwing open a
Hindu public temple to all classes and sections of Hindus. The
Court held that denominational institutions are within Article 25(2)
(b) and that Article 26(b) must be read subject to Article 25(2)(b).
The counsel argued that even if the right of a denomination is to
be conceded under Article 25(2)(b), restrictions like the one
contained in Rule 67A can be imposed. On the question whether a
writ petition in the nature of public interest litigation can be
maintained, it is contended that unlike questions relating to
service, the Public Servants Conduct Rules also takes in within its
parameters, aspects that are not purely related to their service,
but which are related to the conduct of the public servant in public
places as well. Particular reference is made to Rule 93(b) which
relates to the consumption of intoxicating drinks and drugs in
public places. It is thus submitted that Rule 67A basically relates
to a conflict of interest of a public servant who is engaging himself
in religious or communal activities, and such matters can
necessarily be challenged in a writ petition. It is further submitted
that a public servant is a Trustee of the people. Referring to
Articles 27 and 28 of the Constitution of India which prohibit the
State from compelling any person to pay taxes, the proceeds of
which are to be appropriated in payment of expenses for the
promotion or maintenance of a particular religious denomination,
and from indulging in expenditure towards religious instructions in
educational institutions maintained out of State funds, it is
submitted that Right to freedom of religion is subject to restrictions
of various kinds. The counsel then referred to the judgment of the
Hon'ble Supreme Court in Sonal Sihimappa v. State of
Karnataka [AIR 1987 SC 2359], wherein the Hon'ble Supreme
Court held that a public servant whatever his status be, is in the
position of a trustee. Regarding the Conduct Rules, the counsel
refers to the Division Bench judgment of this Court in
Manmadhan v. Krishnappan Unni [1985 KLT 670]. This Court
was concerned with the engagement of a public servant in the
business of money lending. The Court held that the Rules have
been framed in exercise of the power vested in the Governor under
the proviso to Article 309 of the Constitution of India in the public
interest and as a matter of public policy.
10. The counsel also refers to the judgment in Balagopalan
v. State of Kerala [2021 (1) KLT OnLine 1014 = 2021 (2)
KLT SN.5 Case No.5], wherein a Division Bench of this Court
considered the correctness of an order issued by the Government,
whereby the dies non declared for participation in a strike by the
Government servants, was regularised. After considering the
Conduct Rules and Rule 14A of the Kerala Service Rules, Part I
(Chapter III), this Court held that the order issued by the
Government cannot be sustained in the light of the statutory rules
which clearly prohibit participation in a strike and declares the
consequence of participation in the strike. The above judgment is
relied on to impress upon the mandate of the Government
Servants Conduct Rules. The Court held that even if such a
decision is taken as a policy decision, that cannot be legally
justified since there cannot be a policy against a statutory
provision. The counsel further submitted that it can be seen from
Ext.P15 which is the memorandum of association of the CSITA that
it has been registered under the Companies Act, 1913. Ext.P17 is
referred and it is contended that the Sabha is necessarily an
organisation of people believing in a particular faith. It is hence
submitted that Rule 67A will apply to the holding of a post in the
Sabha.
11. Sri Subhash Chand, counsel for the 9 th respondent
raised a primary contention that Ext.P8 is pending before the
Government and a parallel remedy cannot be invoked under Article
226 of the Constitution. Reference is made to the Full Bench
decision of this Court in Reena R.P. v. R.S.Geena and Others
[2010 (2) KHC 110] to submit that a writ petition cannot be
maintained when a statutory revision is pending before the
Government. Particular reference was made to paragraph 7 of the
judgment. It is further contended that Rule 67A cannot be applied
in the case of Aided School Teachers and that the prohibition under
Rule 67A (1) arises only if a person becomes an office bearer and
there cannot be a denial of the right to participate in an election.
It is submitted that in fact none of the party respondents have
become office bearers and as such, the writ petition itself is
misconceived. Reference is also made to paragraph 11 of Ext.P3
Government Order dated 28.1.2020 which was issued regarding
the holding of a post by Sri Mathew Joseph to submit that, on facts
the said person was holding a post. Regarding Ext.P4 judgment of
the High Court of Madras, it is submitted that, unlike Kerala, in
Tamil Nadu there are rules for governing teachers of private
schools. It is further submitted that the writ petition is only a case
of a disguised public interest. Reference is made to the judgment
in Jaleel P.P. v. P.K.Muralikrishnan & Ors. [2014 (1) KHC
672] rendered by a Division Bench of this Court. In the above
judgment, this Court had held that in service matters, a third party
having no concern with the case at hand, cannot claim to have a
locus standi. Specific reference is made to paragraphs 28 and 30
of the judgment.
12. This Court in the said judgment has reiterated the
guidelines that are to be followed while entertaining a Public
Interest Litigation so as to preserve the purity and sanctity of such
litigations. With reference to service matters, relying on the Apex
Court judgment, this Court found that except for a writ of quo
warranto, a Public Interest Litigation is not maintainable in service
matters.
13. Sri R.T.Pradeep, learned counsel appearing for
respondents 5 to 8 and 10 contends that CSI is a minority religious
denomination of Christians as envisaged under Article 26(A), 29
and 30 of the Constitution of India and hence cannot be treated as
a religious organisation mentioned in Rule 67A of the 1960 Rules.
It is submitted that a minority religious denomination has
constitutional protection under Article 26(A) and Article 30. It is
further submitted that the religious organisation mentioned in Rule
67A is an organisation under the nomenclature of religion that is
not governed by any regulation of the Government. It is further
submitted that the minority religious denomination to which the
respondents belong, which has constitutional protection, and, the
legal entity which is a Company formed for the protection of
religion and subject to the regulatory mechanism provided under
the Constitution as well as the Companies Act, will not fall within
the domain of religious organisation under Rule 67A (1).
Reference is made to several judgments of the Hon'ble Supreme
Court in support of the contention that the minority religious
denominations enjoy certain rights which cannot be taken away by
Rule 67A of the 1960 Rules. It is further submitted that there is no
conflict of interest between the official duties of the party
respondents and their religious duties as members of the Diocese
or those attached to the various offices under the Diocese. It is
also contended that respondents 5 to 8 and 10 are not office
bearers of the elected office of the Diocese.
14. The counsel for respondents 3 and 4 apart from
supporting the stand taken by respondents 5 to 10, submits that
respondents 5 to 11 had not contested in the election and as such
the prayer regarding the same need not be considered. It is
contended that the 3rd respondent enjoys constitutional protection
and the same will be affected if the second prayer in the writ
petition is granted. It is also contended that the 3 rd respondent is
a religious denomination and not a religious organisation.
15. The following issues arise for consideration;
(a) Whether the petitioner can maintain the writ
petition?
(b) Whether respondents 3 and 4 are entitled to
protection as a minority religious denomination
from the operation of Rule 67A of the 1960
Rules?
(c) Whether respondents 3 and 4 come within the
meaning of the term "religious organisation"?.
16. Even though the counsel appearing for the respondents
have argued that the 3rd respondent is a religious denomination
and not a religious organisation, there appears to be no real
dichotomy between the two terms. The Larger Bench of the
Hon'ble Supreme Court in Shirur Mutt (supra)) has considered
the meaning of the term "religious denomination" and identified its
characteristics as (1) common faith, (2) common organisation and
(3) designation by a distinctive name. It can thus be seen that in
mathematical terms, a religious denomination is a larger set into
which will fall the smaller set called religious organisation. In other
words, there can be no religious denomination without a religious
organisation. Rule 67A (1) of the 1960 Rules specifically prohibits
Government servants from being office bearers of any communal
or religious organisation. So, whether the 3 rd respondent is to be
called as a denomination or as an organisation, holding an office of
the 3rd respondent by a Government servant is prohibited on a
reading of Rule 67A of the 1960 Rules. This Court is hence of the
opinion that the contentions raised by the respondents that the 3 rd
respondent being a religious denomination will not in any way be
affected by Rule 67A of the 1960 Rules cannot be countenanced.
17. The next question to be considered is whether Rule 67A
of the 1960 Rules will in any way affect the rights of the minority
entities protected under Articles 26 and 30 of the Constitution of
India. Article 26 protects the right of every religious denomination
to establish and maintain institutions for religious and charitable
purposes, to maintain its own affairs in matters of religion, to own
and acquire movable and immovable properties and to administer
such property in accordance with the law. In this case, we are
primarily concerned with Article 26(A) and (B). The right available
to the denomination is to establish and maintain institutions. The
prohibition contained in Rule 67A is not regarding the
establishment or maintenance of such institutions. The remaining
question is whether the right to manage its own affairs available
under Article 26(B) has been curtailed in any manner. Here again,
what is protected is the right of a denomination to manage its own
affairs in matters of religion (emphasis supplied). An election
to the office bearers of the Diocese or the Church Committee
cannot be termed as a matter of religion. True, the result of such
an election can decide who should administer the Church or
Diocese. The said aspect is not protected by Article 26 of the
Constitution. Article 30 also relates to the right of minorities to
establish and administer educational institutions and the operation
of Rule 67A does not in any way affect the rights available under
Article 30 to the 3rd respondent. Coming to Article 25, the right
guaranteed therein is a personal right available to all persons to
freely profess, practice, and propagate religion. It is not a right
available to a denomination. The said right also is subject to
regulation by the State. Rule 67A is a Conduct Rule imposed on
Government servants alone who are a class by themselves, and
the prohibition contained in Rule 67A does not affect the
independent right of members of the denomination to freely
profess, practice, and propagate the religion. The right that is
curtailed is only a right to hold any office of a religious organisation
and nothing more. In the above circumstances, the contentions
regarding the protection under Articles 25, 26, and 30 of the
Constitution of India cannot be sustained. The restriction which
can be imposed under Article 25(2)(b) will also apply to Article 26.
[See Venkataramana Devaru (supra)]. On facts, there is a
dispute as to whether respondents 5 to 11 are holding any office of
the 3rd respondent. Exts.P9 to P14 are said to be pending before
additional respondents 12 to 17. It would not be proper for this
Court to render a factual finding on the above aspect and the same
will have to be taken up before the appropriate authorities in the
light of the law declared by this Court that Rule 67A applies to the
respondents.
18. The 2nd prayer in the writ petition is for a direction to
respondents 3 and 4 to prohibit respondents 3 and 4 from allowing
full-time Government servants from standing and contesting
election to the various bodies of the CSI Sabha. Rule 67A does not
prohibit contesting an election. What is prohibited is only holding
an Office. If the result of a contest in an election is placing a
Government servant in an office, necessarily, Rule 67A will come
into play. This Court will not hence be justified in issuing a
direction as prayed for in prayer No.2. All that needs to be stated
is if a Government servant participates in an election to any Body,
which is part of a religious organisation/denomination, as a result
of which the said Government servant is occupying a post under
the said religious organisation/denomination, Rule 67A will apply to
such a Government servant.
19. In the result, the writ petition is allowed. It is declared
that Rule 67A of the 1960 Rules will apply to holding an office
under the 3rd respondent. There will be a direction to respondents
12 to 17 to consider and dispose of Exts.P9 to P14 in accordance
with law within six weeks from the date of receipt of a copy of this
judgment, in the light of the declaration made above.
Sd/-
T.R.RAVI
JUDGE
Pn/dsn
APPENDIX OF WP(C) 1614/2021
PETITIONERS' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE KERALA GOVERNMENT SERVANTS
CONDUCT (AMENDMENT) RULES, 2014 VIDE GO(P)
NO.27/2014 P & ARD DATED 7/8/2014.
EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 14.08.2019 IN
WPC NO. 34324/2018 AND 34330/18.
EXHIBIT P3 TRUE COPY OF THE ORDER GO(RT) NO.108/2020/LAW
DATED 28/01/2020 OF THE LAW SECRETARY.
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 4.12.2020 IN
WP(MD) 13683/2020 OF THE HON'BLE HIGH COURT
OF MADRAS.
EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED
18/12/2020 TO THE 3RD RESPONDENT BY THE
PETITIONER.
EXHIBIT P6 TRUE COPY OF THE INFORMATION OBTAINED UNDER
THE RT ACT DATED 24/06/2020 TO BIJO JOHN.
EXHIBIT P7 TRUE COPY OF THE INFORMATION OBTAINED UNDER
THE R T ACT TO E.M. MATHEW.
EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED
1.1.2021 TO THE 2ND RESPONDENT BY THE
PETITIONER.
EXHIBIT P9 TRUE COPY OF THE REPRESENTATION DATED
22.01.2021 BY THE PETITIONER TO THE 12TH
RESPONDENT WITH RECEIPT
EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DATED
22.01.2021 BY THE PETITIONER TO THE 13TH
RESPONDENT WITH RECEIPT
EXHIBIT P11 TRUE COPY OF THE REPRESENTATIN DATED
22.01.2021 BY THE PETITIONER TO THE 14TH
RESPONDENT WITH RECEIPT
EXHIBIT P12 TRUE COPY OF THE REPRESENTATION DATED
22.01.2021 BY THE PETITIONER TO THE 15TH
RESPONDENT WIHT RECEIPT.
EXHIBIT P13 TRUE COPY OF THE REPRESENTATION DATED
22.01.2021 BY THE PETITIONER TO THE 16TH
RESPONDENT WITH RECEIPT
EXHIBIT P14 TRUE COPY OF THE REPRESENTATION DATED
22.01.2021 BY THE PETITIONER TO THE 17TH
RESPONDENT WITH RECEIPT.
EXHIBIT P15 TRUE COPY OF THE MEMORANDUM OF ASSOCIATION OF
THE CHURCH OF SOUTH INDIA TRUST ASSOCIATION
EXHIBIT P16 TRUE COPY OF THE DISCESAN COUNCIL MEMBERS
LIST AND CONTACT NUMBERS
Exhibit P17 TRUE COPY OF THE RELEVANT PORTION OF THE
CONSTITUTION OF THE CSI CENTRAL DIOCESE.
