Kerala High Court
B. Gopalakrishna Rao vs K. Pradeep on 23 October, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2024:KER:78260
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 23RD DAY OF OCTOBER 2024 / 1ST KARTHIKA,
1946
RP NO. 1029 OF 2024
AGAINST THE JUDGMENT DATED 06.02.2024 IN WA NO.147
OF 2024 OF HIGH COURT OF KERALA
REVIEW PETITIONER(S)/NOT A PARTY IN W.A.NO.147/2024 FILED
ALONG WITH LEAVE PETITION:
B. GOPALAKRISHNA RAO
AGED 56 YEARS,
S/O. BHARATARAJAN POTTI, KRISHNARAJAMADOM,
KATTUVILA, VENKULAM, EDAVA P.O.,
THIRUVANANTHAPURAM DISTRICT PIN - 695311
BY ADVS.
P.HARIDAS
BIJU HARIHARAN
SHIJIMOL M.MATHEW
P.C.SHIJIN
ROSHIN MARIAM JACOB
PRAJISHA O.K.
R.P.No.1029 of 2024 in W.A.No.147 of 2024
&
W.A.No.1286 of 2024 -: 2 :-
2024:KER:78260
RESPONDENT(S)/PETITIONER AND RESPONDENTS 1 TO 4:
1 K. PRADEEP
AGED 46 YEARS
S/O KESHAVAN NAMBOOTHIRI, KIZHAKKEMADOM,
THOTTAKKADU P.O., THIRUVANANTHAPURAM.,
PIN - 695003
2 THE TRAVANCORE DEVASWOM BOARD
REPRESENTED BY ITS SECRETARY, DEVASWOM
HEADQUARTERS, NANTHANCODE, KAWDIAR POST,
THIRUVANANTHAPURAM, PIN - 695003
3 THE DEVASWOM COMMISSIONER
TRAVANCORE DEVASWOM BOARD, DEVASWOM
HEADQUARTERS, NANTHANCODE, KAWDIAR POST,
THIRUVANANTHAPURAM, PIN - 695003
4 THE ASSISTANT DEVASWOM COMMISSIONER
TRAVANCORE DEVASWOM BOARD, VARKALA GROUP,
TEMPLE ROAD, VARKALA, THIRUVANANTHAPURAM
DISTRICT, PIN - 695141
5 K. MADHAVAN POTTI,
AGED 41 YEARS, S/O. KRISHNAN POTTI, PALOOR
MADAM, KOTTUKUNNAM B.O., VAMANAPURAM P.O.,
THIRUVANANTHAPURAM., PIN - 695606
SRI.N.ANAND
SRI.P.U.VINOD KUMAR SC TDB
SRI.K.R.RADHAKRISHNAN NAIR
R.P.No.1029 of 2024 in W.A.No.147 of 2024
&
W.A.No.1286 of 2024 -: 3 :-
2024:KER:78260
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON
16.10.2024 ALONG WITH WA.1286/2024, THE COURT ON
23.10.2024 DELIVERED THE FOLLOWING:
R.P.No.1029 of 2024 in W.A.No.147 of 2024
&
W.A.No.1286 of 2024 -: 4 :-
2024:KER:78260
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 23RD DAY OF OCTOBER 2024 / 1ST KARTHIKA,
1946
WA NO. 1286 OF 2024
AGAINST THE JUDGMENT DATED12.08.2024 IN WP(C) NO.21942 OF
2024 OF HIGH COURT OF KERALA
APPELLANT(S)/PETITIONER:
B. GOPALAKRISHNA RAO
AGED 56 YEARS
S/O BHARATARAJAN POTTI, KRISHNARAJAMADOM,
KATTUVILA, VENKULAM, EDAVA.P.O,
THIRUVANANTHAPURAM DISTRICT., PIN - 695311
BY ADVS.
P.HARIDAS
BIJU HARIHARAN
P.C.SHIJIN
ROSHIN MARIAM JACOB
SHIJIMOL M.MATHEW
R.P.No.1029 of 2024 in W.A.No.147 of 2024
&
W.A.No.1286 of 2024 -: 5 :-
2024:KER:78260
RESPONDENT(S)/RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY
REVENUE DEPARTMENT (DEVASWOM), STATE SECRETARIAT
THIRUVANANTHAPURAM, PIN - 695012
2 THE TRAVANCORE DEVASWOM BOARD
REPRESENTED BY ITS SECRETARY, DEVASWOM
HEADQUARTERS, NANTHANCODE, KAWDIAR POST,
THIRUVANANTHAPURAM,, PIN - 695003
3 THE DEVASWOM COMMISSIONER
TRAVANCORE DEVASWOM BOARD, DEVASWOM
HEADQUARTERS, NANTHANCODE, KAWDIAR POST,
THIRUVANANTHAPURAM, PIN - 695003
4 THE ASSISTANT DEVASWOM COMMISSIONER
TRAVANCORE DEVASWOM BOARD, VARKALA GROUP,
TEMPLE ROAD, VARKALA, THIRUVANANTHAPURAM
DISTRICT, PIN - 695141
5 K.PRADEEP
AGED 46 YEARS, S/O KESHAVAN NAMBOOTHIRI,
KIZHAKKEMADOM, THOTTAKKADU.P.O,
THIRUVANANTHAPURAM, PIN - 695003
SRI.N.ANAND
SRI.P.U.VINOD KUMAR SC TDB
SRI.K.R.RADHAKRISHNAN NAIR
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
16.10.2024 ALONG WITH RP.1029/2024, THE COURT ON
23.10.2024 DELIVERED THE FOLLOWING:
R.P.No.1029 of 2024 in W.A.No.147 of 2024
&
W.A.No.1286 of 2024 -: 6 :-
2024:KER:78260
P.B.SURESH KUMAR & C.PRATHEEP KUMAR, JJ.
-----------------------------------------------
R.P.No.1029 of 2024 in W.A.No.147 of 2024
&
W.A.No.1286 of 2024
-----------------------------------------------
Dated this the 23rd day of October, 2024
JUDGMENT
P.B.Suresh Kumar, J.
The issues that arise for consideration in these matters
are closely interlinked and they are, therefore, disposed of by this
common judgment. The parties are referred to in this judgment as
they appear in R.P.No.1029 of 2024. The matters relate to the inter
se claims of the petitioner and the first respondent for posting as
Melsanthi at Sharkara Temple (the Temple) under the Travancore
Devaswom Board (the Board).
2. During the general transfer of employees of the
R.P.No.1029 of 2024 in W.A.No.147 of 2024
&
2024:KER:78260
Board for the year 2023-24, respondents 1 and 5 staked claim for
posting as Melsanthi in the Temple and among them, the fifth
respondent was selected and posted as Melsanthi. The first
respondent though challenged the posting of the fifth respondent in
an appeal before the Devaswom Commissioner, he could not
succeed. The first respondent therefore, challenged the posting of
the fifth respondent in W.P.(C) No.37269 of 2023. This Court found
that the decision impugned in the writ appeal was one taken without
taking note of clauses 11(a) and (b) of the guidelines for transfer of
employees issued by the Board on 05.03.2022. Consequently, the
impugned decision was set aside and the matter was directed to be
reconsidered by the Devaswom Commissioner. Despite the
favourable order passed by this court, the first respondent
challenged the decision in the writ petition in W.A.No.147 of 2024
contending that a positive direction should have been issued by this
court to the competent authority to post the first respondent as
R.P.No.1029 of 2024 in W.A.No.147 of 2024
&
2024:KER:78260
Melsanthi in the Temple, instead of directing reconsideration of the
matter by the Devaswom Commissioner. Although this Court did not
interfere with the decision of the learned Single Judge, the writ
appeal was disposed on 06.02.2024, with a clarification that in case
the first respondent is found eligible for the posting as claimed by
him, the posting will be for a period of one year. After the disposal of
the appeal, the claim of the first respondent was upheld, pursuant to
the direction in W.P.(C) No.37269 of 2023, and the first respondent
was given posting as Melsanthi in the Temple on 17.06.2024 and he
is continuing as such.
3. It is seen that while the claim of the first
respondent was being considered by the competent authority
pursuant to the direction in W.P.(C) No.37269 of 2023, the Board
invited requests for the general transfer and posting of employees
for the year 2024-25. Pursuant to the said invitation, the petitioner
staked a claim for posting as Melsanthi in the Temple during 2024-
R.P.No.1029 of 2024 in W.A.No.147 of 2024
&
2024:KER:78260
25. It was while the said claim was pending, the first respondent was
given posting as Melsanthi in the Temple on 17.06.2024. The
petitioner in the circumstances, challenged the posting of the first
respondent as Melsanthi in the Temple in W.P.(C) No.21942 of 2024
on the ground that he has a superior claim for that posting. The
learned Judge who considered the said writ petition took the view
that since it was directed by the Division Bench in W.A.No.147 of
2024 that in case the claim of the first respondent is upheld, he shall
be given posting for a period of one year, the petitioner has to give
way to the claim of the first respondent. Consequently, the said writ
petition was disposed of with a direction that if the petitioner stakes
a claim for posting in the Temple after the term of the first
respondent, the same shall be considered in accordance with the
guidelines. W.A. No.1286 of 2022 is filed by the petitioner
challenging the decision in W.P.(C) No.21942 of 2024.
4. It is seen that it is since this Court took the view in
R.P.No.1029 of 2024 in W.A.No.147 of 2024
&
2024:KER:78260
W.P.(C) No.21942 of 2024 that the direction issued in W.A.No.147 of
2024 is standing in the way of the petitioner claiming posting as
Melsanthi in the Temple, to which posting he is otherwise entitled,
the petitioner filed R.P.No.1029 of 2024 seeking review of the said
direction.
5. Heard the learned counsel for the review
petitioner, the learned counsel for the first respondent as also the
learned Standing Counsel for the Board.
6. The Temple being an Administrative Officer Grade
Devaswom, the term of Melsanthi is limited to one year. It is not
disputed that but for the direction issued by this Court in W.P.(C)
No.37269 of 2023 and W.A.No.147 of 2024, the petitioner would
have been the rightful claimant for posting as Melsanthi of the
Temple during the year 2024-25. It is also not disputed that the
claim of the petitioner for posting as Melsanthi in the temple is even
superior to the claim of the first respondent. On a query from the
R.P.No.1029 of 2024 in W.A.No.147 of 2024
&
2024:KER:78260
Court, the learned Standing Counsel for the Board submitted that
there are other employees in the Board who have better claims than
the petitioner for posting as Melsanthi of the Temple and as such, if
any one of them stakes a claim in the next general transfer, the
petitioner will have to give way to that claim as per the guidelines.
7. In the above circumstances, we have suggested to
the learned counsel for the first respondent to ascertain from the
first respondent as to whether he is prepared to forgo half of his
term in favour of the petitioner, so that postings could be made from
the next general transfer onwards, in accordance with the
guidelines. Even though the said suggestion was acceptable to the
petitioner, the learned counsel for the first respondent submitted
that the suggestion is not acceptable to the first respondent.
Inasmuch as the suggestion made by us for an amicable settlement
of the dispute in the interests of both parties is not acceptable to the
first respondent, we are constrained to decide the matters on merits.
R.P.No.1029 of 2024 in W.A.No.147 of 2024
&
2024:KER:78260
8. As noted, the Division Bench did not interfere with
the decision of the learned Single Judge in W.P.(C) No.37269 of
2023. Had W.A.No.147 of 2024 been disposed of affirming the
decision in W.P.(C) No.37269 of 2023, the present stalemate would
not have arisen, as in that event, the first respondent would have
continued as Melsanthi of the Temple only for the remaining period
of the year 2023-24. It is seen that it is on account of that reason
that the first respondent prayed for a clarification in W.A.No.147 of
2024 that in case he is found eligible, he should be given posting for
a period of one year. In other words, the aforesaid clarification was
sought with a view to defeat the superior claim if any, for posting in
the Temple as Melsanthi during the succeeding year viz, 2024-25.
The fact that such a clarification would affect the rights of a superior
claimant for posting in the succeeding year, should have been
brought to the notice of this court by the Board and had the said fact
been brought to the notice of this court, this court would not have
R.P.No.1029 of 2024 in W.A.No.147 of 2024
&
2024:KER:78260
made such a clarification.
9. The learned counsel for the first respondent argued
that transfer norms do not confer any vested right to any employee
and as such, the judgment of this court shall not be reviewed solely
based on the transfer norms. We are afraid, the first respondent
cannot be heard to contend so, as he secured the judgment in W.P.
(C) No.37269 of 2023, on the basis of which he obtained a transfer
and posting as Melsanthi in the Temple, solely based on transfer
norms. Needless to say, the clarification issued by this Court in the
judgment in W.A.No.147 of 2024 is vitiated by an error apparent on
the face of the record and is liable to be recalled.
10. Inasmuch as it is found that the clarification issued
by this court in W.A.No.147 of 2024 is liable to be recalled, there
cannot be any impediment in allowing W.P.(C) No.21942 of 2024 to
uphold the superior claim of the petitioner for posting as Melsanthi in
the Temple. The prayer in W.P.(C) No.21942 of 2024 is to quash
R.P.No.1029 of 2024 in W.A.No.147 of 2024
&
2024:KER:78260
Exts.P3 and P5 orders therein, insofar it relate to the posting of the
first respondent in the Temple. The petitioner also sought for a
direction in the said writ petition to the competent authority of the
Board to post the petitioner as Melsanthi in the Temple. Inasmuch as
Exts.P3 and P5 orders are issued in the light of the direction issued
by this Court in W.P.(C) No.37269 of 2023 and W.A.No.147 of 2024,
and inasmuch as the petitioner has a superior claim for posting as
Melsanthi in the Temple, the petitioner is entitled to the reliefs
sought for in the writ petition. However, since it is found that the
first respondent has not been given a posting as Melsanthi of the
Temple during 2023-24 to which he was entitled then, in order to
avoid hardship being meted out to the first respondent, we deem it
appropriate to dispose of these matters on the following terms :
(1) R.P.No.1029 of 2024 is allowed and the direction in
the judgment in W.A.No.147 of 2024 that in case the
first respondent is found entitled and eligible for a
R.P.No.1029 of 2024 in W.A.No.147 of 2024
&
2024:KER:78260
posting in the Temple, the posting will be for a period
of one year, is recalled.
(2) W.A.No.1286 of 2024 is allowed in part
permitting the first respondent to continue as
Melsanthi in the Temple for a period of 6 months from
17.06.2024 and permitting the petitioner to continue
thereafter as Melsanthi till transfer and postings are
effected in the ensuing year.
(3) The competent authority of the Board shall take
necessary steps to post the petitioner as Melsanthi in
the Temple with effect from 17.12.2024.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
C.PRATHEEP KUMAR, JUDGE.
YKB
