Kerala High Court
M.V. Subhadra Varassyar vs State Of Kerala on 5 November, 2024
Author: Anil K.Narendran
Bench: Anil K.Narendran
2024:KER:82807
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 5TH DAY OF NOVEMBER 2024/14TH KARTHIKA, 1946
W.A. NO. 1791 OF 2023
AGAINST THE ORDER/JUDGMENT DATED 10.08.2023 IN WP(C)
NO.5172 OF 2023 OF HIGH COURT OF KERALA
APPELLANT/7TH RESPONDENT:
CHAIRMAN
BOARD OF TRUSTEES, SREE PALATHOL DEVASWOM
OFFICE, ELAMKULAM P.O., PERINTHALMANNA,
MALAPPURAM, PIN - 679623.
BY ADV K.MOHANAKANNAN
RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 6:
1 M.V. SUBHADRA VARASSYAR,
AGED 67 YEARS
W/O SUKUMARA WARRIER, HEREDITARY KAZHAKAM,
KADANNENKAVU VISHNU AYYAPPA TEMPLE, RESIDING AT
SUBHASH BHAVAN, MUTHUKURISSI VARYAM, ELAMKULAM,
ELAD P.O., CHERUKARA VIA., MALAPPURAM,
PIN - 679623.
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W.A.No.1791 of 2023 and
W.P.(C) No.40723 of 2023
2 STATE OF KERALA
REP. BY ITS SECRETARY TO GOVERNMENT, REVENUE
(DEVASWOM) DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001.
3 THE MALABAR DEVASWAM BOARD
REPRESENTED BY ITS SECRETARY, HOUSEFED COMPLEX,
P.O.ERANHIPALAM, KOZHIKODE, PIN - 673006.
4 THE COMMISSIONER
MALABAR DEVASWAM BOARD, HOUSEFED COMPLEX,
P.O.ERANHIPALAM, KOZHIKODE, PIN - 673006.
5 THE DEPUTY COMMISSIONER,
MALABAR DEVASWAM BOARD, HOUSEFED COMPLEX,
P.O.ERANHIPALAM, KOZHIKODE, PIN - 673006.
6 THE ASSISTANT COMMISSIONER,
MALABAR DEVASWAM BOARD, MALAPPURAM DIVISION,
CIVIL STATION, TIRUR, MALAPPURAM, PIN - 676101.
7 HEREDITARY TRUSTEE
KADANNENKAVU VISHNU AYYAPPA TEMPLE, SREE
PALATHOL DEVASWOM OFFICE, ELAMKULAM P.O.,
PERINTHALMANNA, MALAPPURAM, PIN - 679623.
BY ADVS.
R1 BY SRI.MAHESH V RAMAKRISHNAN
SMT. R. RANJANIE, SC, MDB
SRI. S. RAJMOHAN, SR. GP
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
23.09.2024, ALONG WITH WP(C).40723/2023, THE COURT ON
05.11.2024 DELIVERED THE FOLLOWING:
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3
W.A.No.1791 of 2023 and
W.P.(C) No.40723 of 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 5TH DAY OF NOVEMBER 2024/14TH KARTHIKA, 1946
W.P.(C) NO. 40723 OF 2023
PETITIONER:
M.V. SUBHADRA VARASSYAR
AGED 67 YEARS
W/O SUKUMARA WARRIER, HEREDITARY KAZHAKAM,
KADANNENKAVU VISHNU AYYAPPA TEMPLE, RESIDING AT
SUBHASH BHAVAN, MUTHUKURISSI VARYAM, ELAMKULAM,
ELAD P.O., CHERUKARA VIA., MALAPPURAM,
PIN - 679340.
BY ADV MAHESH V RAMAKRISHNAN
RESPONDENTS:
1 STATE OF KERALA
REP. BY ITS SECRETARY TO GOVERNMENT, REVENUE
(DEVASWOM) DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001.
2 THE MALABAR DEVASWAM BOARD
REPRESENTED BY ITS SECRETARY, HOUSEFED COMPLEX,
P.O.ERANHIPALAM, KOZHIKODE, PIN - 673006.
3 THE COMMISSIONER,
MALABAR DEVASWAM BOARD, HOUSEFED COMPLEX,
P.O.ERANHIPALAM, KOZHIKODE, PIN - 673006.
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W.A.No.1791 of 2023 and
W.P.(C) No.40723 of 2023
4 THE DEPUTY COMMISSIONER,
MALABAR DEVASWAM BOARD, HOUSEFED COMPLEX,
P.O.ERANHIPALAM, KOZHIKODE, PIN - 673006.
5 THE ASSISTANT COMMISSIONER
MALABAR DEVASWAM BOARD,MALAPPURAM DIVISION,
CIVIL STATION, TIRUR, MALAPPURAM, PIN - 676101.
6 HEREDITARY TRUSTEE,
KADANNAVANKAVU VISHNU AYYAPPA TEMPLE, SREE
PALATHOL DEVASWOM OFFICE, ELAMKULAM P.O.,
PERINTHALMANNA, MALAPPURAM, PIN - 679623.
7 CHAIRMAN, BOARD OF TRUSTEES
SREE PALATHOL DEVASWOM OFFICE, ELAMKULAM P.O.,
PERINTHALMANNA, MALAPPURAM, PIN - 679623.
8 P.C.MURALEEDHARAN,
S/O GANGADHANARANUNNI, PUTHAN KOVILAKATH VEEDU,
ELAD P.O.,MALAPPURAM, PIN - 670340.
BY ADVS.
K.MOHANAKANNAN
PRAVEEN H HARIKUMAR
SMT. R. RANJANIE, SC, MDB
SRI. S. RAJMOHAN, SR. GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL
HEARING ON 23.09.2024, ALONG WITH WA.1791/2023, THE COURT
ON 05.11.2024 DELIVERED THE FOLLOWING:
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5
W.A.No.1791 of 2023 and
W.P.(C) No.40723 of 2023
ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ.
-----------------------------------------------------------
W.A.No.1791 of 2023
and
W.P.(C) No.40723 of 2023
-----------------------------------------------------------
Dated this the 5th day of November, 2024
JUDGMENT
P.G.Ajithkumar, J.
The questions involved in both these cases are the
same. Hence, we dispose of these cases by this common
judgment.
2. Smt.M.V.Subhadra Varassyar was a hereditary
Kazhakam in Sree Kadannavan Kavu Vishnu Ayyappa Temple.
Her services were terminated at the age of 65 years in
November, 2020. Alleging that the said decision taken by the
Chairman, Board of Trustees of the Temple as arbitrary, illegal
and capricious, she filed W.P.(C) No.5172 of 2023. The said
writ petition was allowed as per the judgment dated
10.08.2023 ordering as follows:
"Resultantly, I order this writ petition and direct the
competent among respondents 3 to 7 to pay her salary
from the date on which it was denied to her, along with
arrears; and to continue to do so until such time as she
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W.A.No.1791 of 2023 and
remains as a hereditary 'Kazhakam', or till she is
removed as per the provisions of law - if so possible.
This shall be done, dehors Exts.P4 and P6 and being
guided by Ext.P3 instructions of the Devaswom Board.
The payment as afore shall be made as expeditiously as
is possible, but not later than two months from the date
of receipt of a copy of this judgment."
3. Challenging the said judgment, the additional 7 th
respondent in the writ petition, Chairman, Board of Trustees
of the Temple, filed the writ appeal invoking the provisions
under Section 5(i) of the Kerala High Court Act, 1958. This
Court on 4.12.2023 after hearing both sides stayed further
proceedings pursuant to the impugned judgment for a period
of three months. The interim order was extended from time to
time.
4. Smt.M.V.Subhadra Varassyar later filed W.P.(C)
No.40723 of 2023 seeking a writ of certiorari quashing
Exts.P4, P5, P7 and P9 and also a writ of mandamus directing
the 3rd respondent-Commissioner, Malabar Devaswom Board
to recover the entire amount paid to the 8th respondent
Sri.P.C.Muraleedharan, who was appointed as Kazhakam in
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W.A.No.1791 of 2023 and
the Temple in replacement of the petitioner. It is the
contention of the petitioner that her services as Kazhakam
was not terminable and the appointment of the 8th respondent
was quite illegal. She also claimed that she had been
attending her duties all throughout and hence employing the
8th respondent and payment of remuneration to him are quite
illegal, and therefore, whatever amount paid to him has to be
recovered from the Chairman, Board of Trustees, who made
such an appointment.
5. The parties are referred to as arraigned and
documents referred to as marked in W.P.(C) No.40723 of
2023, if not mentioned otherwise.
6. Heard the learned counsel for the petitioner, the
learned Senior Government Pleader, the learned Standing
Counsel for the Malabar Devaswom Board, the learned
counsel for the 7th respondent-Chairman, Board of Trustees of
Sree Palathol Devaswom and also the learned counsel for the
8th respondent.
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W.A.No.1791 of 2023 and
7. The disputes involved in both the writ petitions
revolve around the question whether the petitioner being a
hereditary Kazhakam would have to retire at the age of 65
years, having joined the Welfare Fund Scheme as per
Ext.R7(g) and decided to receive benefit under the
Scheme.
8. A preliminary contention was raised by the learned
counsel for the 7th respondent that on a petition submitted by
the petitioner concerning the matter in issue here, the Deputy
Commissioner, Malabar Devaswom Board, Kozhikode took a
decision on 24.07.2023, which is Ext.P9, and therefore, the
remedy of the petitioner is to approach the Commissioner
invoking the provisions of Section 18 of the Hindu Religious
and Charitable Endowments Act, 1951 (HR&CE Act) or to
approach the Government under Section 99 of the HR&CE Act.
The specific contention of the petitioner in these writ petitions
is that the provisions of the HR&CE Act or Ext.R7(g) bye-laws
of the Welfare Fund Scheme do not stipulate that a hereditary
Kazhakam, who joined the welfare fund as per the scheme
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W.A.No.1791 of 2023 and
should necessarily have to retire at the age of 65 years. When
such a question of law is raised and the decision in the writ
petitions depends essentially on that question, we are of the
view that the petitioner need not be relegated to the
Commissioner or the Government.
9. Indisputably, Sree Kadannavan Kavu Vishnu
Ayyappa Temple is a religious institution under the control of
the Malabar Devaswom Board. Section 48(2) of the HR&CE
Act lays down the parameters for appointment of hereditary
employees in the religious institution under the control of the
Malabar Devaswom Board. It says that in cases where the
office or service is hereditary, the next in the line of
succession shall be entitled to succeed. No provision
prescribing age of retirement of a hereditary office holder or
servant is provided in the HR&CE Act. It necessarily implies
that there is no age of retirement for a hereditary office
holder or a servant in a religious institution under the control
of the Malabar Devaswom Board.
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W.A.No.1791 of 2023 and
10. In Ext.R7(g) scheme, a provision for a hereditary
employee to opt for pension is included. The provision reads,
":ഈ പദ്ധതതിപപകകാരമമുള ആനമുകകൂലല്യങ്ങൾ
പപൻഷൻ- -കാ-
65- മപത വയസതിൽ ജജകാലതിയതിൽനതിനമു
പതിരതിയമുന ജക്ഷേപത ജജീവനകകാർകമു- 60--കാമപത വയസതിൽ
ജജകാലതിയതിൽനതിനന പതിരതിയമുന എകതിക കല്യകൂടജീവന ആപജീസർമകാർകമു-
പപൻഷൻ ആനമുകകൂലല്യ- ലഭതികമുനതകാണന. -കാ-മപത
65-
വയസതിൽ അവരവരമുപട പകാരമ്പരല്യ അവകകാശ- ഉജപ ക്ഷേതിചന
ജജകാലതിയതിൽനതിനന പതിരതിഞമുജപകാകകാൻ തയകാറമുള പകാരമ്പരല്യ
ജജീവനകകാർകന ജക്ഷേമനതിധതി യതിൽ അ-ഗങ്ങളകാകകാവമുനതമു-
പദ്ധതതിപകകാണമുള ആനമുകകൂലല്യങ്ങൾ ലഭതികമുനതമുമകാണന .
ജക്ഷേപതജജീവന കകാരമുപട പപൻഷൻ മകാസതതിൽ 75 രകൂപ വജീതവമു-
എകതിക കല്യകൂടജീവന ആപജീസർമകാരമുപട പപൻഷൻ മകാസതതിൽ 150
രകൂപവജീതവമു- ആയതി നതിശ്ചയതിചതിടമുണന .
പഗകാറതിവതിറതി- സർവജീസതിൽ നതിനന പതിരതിയമുന അവസരതതിൽ
ജജീവനകകാർകമു- എകതിക കല്യകൂടജീവന ഓഫജീസർമകാർകമു- പഗകാറതിവതിറതി
നൽകമുനതകാണന. ജജീവനകകാർകന 7,500 രകൂപയമു- എകതിക കല്യകൂടജീവന
ആപജീസർമകാർകന 15,000 രകൂപയമു- പഗകാറതിവതിറതി ലഭതികമുനതകാണന."
11. The petitioner joined the scheme, a fact which is
not disputed by the petitioner. The aforementioned provision
can only mean that a hereditary employee, who subscribes
membership to the said welfare scheme may opt to retire at
the age of 65 years. If an incumbent opts to retire, he/she
would be paid pension at the prescribed rate and also the
gratuity. The petitioner turned 65 years on 30.11.2020. The
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W.A.No.1791 of 2023 and
7th respondent has no case that the petitioner opted to retire
at the age of 65 years. His case is that having joined the
Welfare Fund, she ought to retire at the age of 65 years and
when she was asked to nominate her successor, she failed to
reply in time and for that reason the process for recruiting a
new Kazhakam was initiated. The 8th respondent was
accordingly appointed.
12. It is seen that the petitioner submitted a request
dated 09.10.2020 (Ext. P2 in W.P.(C) No.5172 of 2023) to
allow him to continue as Kazhakam beyond the age of 65
years. On 15.11.2020 the 7th respondent sent a letter to the
petitioner intimating that she would be retiring on 30.11.2020
and she may nominate her successor if she so desires.
Stating that a reply was sent only late and further that the
petitioner joined the Welfare Fund Scheme, a new Kazhakam
was appointed.
13. As stated, from a perusal of Exts.P2, P4 and P5
produced in W.P.(C) No.5172 of 2023, it is evident that the
petitioner did not opt for a retirement. The learned counsel for
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W.A.No.1791 of 2023 and
the petitioner would submit that the petitioner did not receive
gratuity amount admissible under the Ext.P7(g) scheme. The
petitioner being a hereditary Kazhakam, it is her undeniable
right to continue as long as she wishes and able to do the
duty. Joining the Welfare Fund Scheme does not have the
effect of failing that vested right unless she voluntarily opted
to retire. The contention of the learned counsel for the 7 th
respondent that since the petitioner subscribed to the Welfare
Fund Scheme, she is bound to retire at the age of 65 years is
therefore untenable. The petitioner, as though a member of
the Welfare Fund Scheme, did not opt voluntarily to retire at
the age of 65 years, and therefore there arises no question of
appointing a substitute; be it her successor or a fresh
appointee.
14. In the said circumstances, we are of the view that
the learned Single Judge rightly has held that the petitioner is
entitled to continue in service as hereditary Kazhakam and
she is entitled to get salary arrears, which was denied to her.
Indisputably, there is only one post of Kazhakam and hence,
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W.A.No.1791 of 2023 and
appointment of the 8th respondent as Kazhakam in Sree
Kadannavan Kavu Vishnu Ayyappa Temple is illegal. Necessary
consequences, including his termination from service, shall
follow. We do not make any order as to recovery of salary
paid to the 8th respondent. That is a matter for consideration
by the Malabar Devaswom Board. W.A.No.1791 of 2023 is
accordingly dismissed and the W.P.(C) No.40723 of 2023 is
allowed to the above extent.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
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W.A.No.1791 of 2023 and
APPENDIX OF WP(C) 40723/2023
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE SCHEDULE OF
ESTABLISHMENT DATED 29-09-2014 OF SREE
PALATHOL DEVASWOM ISSUED BY THE 4TH
RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED
09-10-2020 SUBMITTED BY THE PETITIONER
BEFORE THE MANJERI DIVISION MEMBER OF
THE MALABAR DEVASWOM BOARD.
EXHIBIT P3 TRUE COPY OF THE LETTER DATED 16-10-
2020 ISSUED BY THE 3RD RESPONDENT TO
THE 7TH RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 15-11-
2020 ISSUED BY THE 7TH RESPONDENT TO
THE PETITIONER
EXHIBIT P5 TRUE COPY OF THE NOTIFICATION DATED
06-02-2021 PUBLISHED IN MALAYALA
MANORAMA DAILY .
EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED
24-03-2021 SUBMITTED BY THE PETITIONER
BEFORE THE PERINTHALMANNA DIVISION
INSPECTOR OF THE MALABAR DEVASWOM
BOARD ALONG WITH LEGIBLE COPY.
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 27-02-
2021 ISSUED BY THE 7TH RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 10-08-
2023 IN W.P.(C) NO. WP© NO.5172 OF
2023 OF THIS HON'BLE COURT.
EXHIBIT P9 TRUE COPY OF THE ORDER DATED 24-07-
2023 IN A.P.NO.7/2021 ISSUED BY THE
4TH RESPONDENT.
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W.A.No.1791 of 2023 and
RESPONDENT EXHIBITS
EXHIBIT R7(A) TRUE COPY OF THE LETTER DATED
27.11.2020 SENT BY THE PETITIONER TO
THE 7TH RESPONDENT
EXHIBIT R7(B) TRUE COPY OF THE LETTER SENT BY THE
7TH RESPONDENT TO THE PETITIONER DATED
15.03.2021
EXHIBIT R7(C) TRUE COPY OF THE NOTIFICATION
PUBLISHED BY THE MALAYALA MANORAMA
DAILY DATED 06.02.2021 IN MALAPPURAM
EDITION
EXHIBIT R7(D) TRUE COPY OF THE APPOINTMENT ORDER OF
THE 8TH RESPONDENT DATED 27.02.2021
ISSUED BY THE 7TH RESPONDENT
EXHIBIT R7(E) TRUE COPY OF THE REPORT FILED BY THE
7TH RESPONDENT BEFORE THE COMMISSIONER
DATED 15.03.2021
EXHIBIT R7(F) TRUE COPY OF THE INTERIM ORDER DATED
04.12.2023 PASSED IN WA 1791/2023
EXHIBIT R7(G) TRUE COPY OF THE NOTICE PUBLISHED BY
THE SECRETARY, TEMPLE EMPLOYEES AND
EXECUTIVE OFFICER WELFARE FUND BOARD
EXHIBIT R7(H) TRUE COPY OF THE LIST OF EMPLOYEES OF
THE TEMPT OF THE 7TH RESPONDENT
INCLUDED IN THE WELFARE FUND DATED NIL
EXHIBIT R8(A) TRUE COPY OF THE NOTIFICATION
PUBLISHED BY THE MALAYALA MANORAMA
DAILY MALAPPURAM EDITION DATE:
06.02.2021
EXHIBIT R8(B) TRUE COPY OF THE APPOINTMENT ORDER OF
THE 8TH RESPONDENT DATED 27.02.2021
