IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 7TH SEPTEMBER 2011 / 16TH BHADRA 1933 WP(C).No. 17563 of 2008(N) ---------------------------------------- PETITIONER(S): ------------------------- 1. KRISHNAKUMAR.B, SREEKRISHNA BHAVANAM, KOCHICKAL, MAVELIKARA, ALAPPUZHA. 2. RENJITH.R, REJITHA BHAVANAM, CHAVARA PO, KOLLAM. 3. SAJIKUMAR.P., LAKSHMY BHAVANAM, EVOOR NORTH.P.O, CHEPPAD. 4. JAYAKUMAR.S, KOTTIL, EVOOR SOUTH, KEERIKAD.P.O. 5. VIMAL KUMAR.S, KOLAPPURAKKAL THEKKATHIL, PULLYKONOKKU.P.O, KAYAMKULAM. 6. SREEJITH.R, PUTHENVEEDU, MOORTHITTA, MANNAR.P.O. 7. MANOJ.B, THUNDY PADEETHATHIL, KATTUVALLIL, CHETTIKULANGARA P.O, MAVELIKKARA. 8. SREEKUMAR.B, SREEKRISHNA BHAVANAM, KOCHIKKAL, MAVELIKKARA. 9. PRAKASHKUMAR.N, PRAKASH BHAVANAM, KANDIYOOR, MAVALIKKARA. 10. B.HARIKUMAR, SREEKRISHNA BHAVANAM, KOCHIKKAL, MAVELIKKARA. Kss ..2/- ..2.... WPC.NO.17563/2008 N 11. J.RENJITH, PANAKKATHARA THEKKATHIL, THEKKU KOCHUMURI, OCCHIRA.P.O. 12. PRADEEPKUMAR.V. ALIAS PRADEEP, ARIVANNOOR VEEDU, MANNARASALA P.O, HARIPAD. 13. VISHNU.S, KARUKAYIL KIZHAKKATHIL, MUTHUMULAM SOUTH P.O.MUTHUKULAM. 14. RENJITH.K, NEELEMANVADAKKATHIL, MUTHUKULAM SOUTH P.O, MUTHUKULAM. BY ADVS. SRI.P.SREEKUMAR, SRI.K.S.MANU (PUNUKKONNOOR). RESPONDENT(S): ---------------------------- 1. THE TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM. 2. THE DEVASWOM COMMISSIONER, THE TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM. R1 & R2 BY ADVS.SRI.V.V.NANDAGOPAL NAMBIAR,SC,TDB SRI.D.SREEKUMAR, SC, TDB SRI.V.KRISHNA MENON. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/08//2011 ALONG WITH WPC NO. 19560 OF 2008 AND CONNECTED CASES, THE COURT ON 07/09/2011 DELIVERED THE FOLLOWING: Kss WPC.NO.17563/2008 N APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE CERTIFICATE ISSUED TO THE FIRST PETITIONER BY SRI.OACHIRA.V.BHASKARAN DTD. 6/06/2008. P2: COPY OF THE CERTIFICATE ISSUED TO THE 2ND PETITIONER BY SRI.K.GOPAKUMAR DTD. 7/01/2003. P3: COPY OF THE CERTIFICATE ISSUED TO THE 3RD PETITIONER BY SRI.MUTHUKULAM P.SUSEELAN DTD. 6/06/2008. P4: COPY OF THE CERTIFICATE ISSUED TO THE 4TH PETITIONER BY SRI.OACHIRA BHASKARAN DTD. 6/06/2008. P5: COPY OF THE CERTIFICATE ISSUED TO THE 5TH PETITIONER SRI.OACHIRA BHASKARAN DTD. 6/06/2008. P6: COPY OF THE CERTIFICATE ISSUED TO THE 6TH PETITIONER BY OACHIRA V.BHASKARAN DTD. 24/02/2005. P7: COPY OF THE CERTIFICATE ISSUED TO THE 7TH PETITIONER BY OACHIR V.BHASKARAN DTD. 6/06/2006. P8: COPY OF THE CERTIFICATE ISSUED TO THE 8TH PETITIONER BY V.SIVADASAN DTD. 6/06/2008. P9: COPY OF THE CERTIFICATE ISSUED TO THE 9TH PETITIONER BY SRI.HARIPAD KRISHNAKUMAR DTD. 5/06/2008. P10: COPY OF THE CERTIFICATE ISSUED TO THE 10TH PETITIONER BY OACHIRA V.SIVADASAN. P11: COPY OF THE CERTIFICATE ISSUED TO THE 11TH PETITIONER BY SRI.OACHIRA V.BHASKARAN DTD. 6/06/2008. P12: COPY OF THE CERTIFICATE ISSUED TO THE 12TH PETITIONER BY OACHIRA V.BHASKARAN DTD. 6/06/2008. Kss ..2/- ..2..... WPC.NO.17563/2008 N P13: COPY OF THE CERTIFICATE ISSUED TO THE 13TH PETITIONER BY THE COMMISSIONER OF EXAMINATIONS, TAMILNADU DTD. 5/08/2005. P14: ENGLISH TRANSLATION OF THE EXT.P13 CERTIFICATE. P15: COPY OF THE CERTIFICATE ISSUED TO THE 14TH PETITIONER BY THE COMMISSIONER OF EXAMINATIONS, TAMILNADU DTD. 30/08/2007. P16: COPY OF THE ENGLISH TRANSLATION OF THE P15 CERTIFICATE. P17: COPY OF THE NOTIFICATION ISSUED BY THE 2ND RESPONDENT DTD.16/05/2008. P18: COPY OF THE NOTIFICATION ISSUED BY THE FIRST RESPONDENT DTD. 9/02/2005. P19: COPY OF THE MEMO ISSUED TO THE 12TH PETITIONER DTD. 27/05/2005. P20: COPY OF THE REPRESENTATION SUBMITTED TO THE FIRST RESPONDENT DTD. NIL. P21: COPY OF THE JUDGMENT IN W.A.NO.2499/2007 OF THIS HON'BLE COURT DTD. 21/11/2007. P22: COPY OF THE GAZETTE NOTIFICATION DTD. 24/01/2008 OF THE FIRST RESPONDENT. P23: COPY OF THE ORDER DTD. 25/04/2008 OF THE FIRST RESPONDENT. P24: COPY OF THE JUDGMENT IN WPC.NO.744/2007 DTD. 18/06/2007. P25: COPY OF THE NOTIFICATION OF THE FIRST RESPONDENT DTD. 3/10/2001. P26: COPY OF THE OBJECTION FILED BY THE PETITIONERS DTD. 21/07/2008. P27: COPY OF THE REVIEW PETITION DTD. 21/07/2008. P28: COPY OF THE APPLICATION OF THE FIRST PETITIONER DTD. 21/07/2008. P29: COPY OF THE MEMO DTD. 2/2/2009 ISSUED BY THE RESPONDENT. RESPONDENTS' ANNEXURE: ANNEX.R2(A): COPY OF THE ORDER ROC NO.6171/07/CA DTD.25/04/2008. /TRUE COPY/ P.A.TO JUDGE Kss THOTTATHIL B.RADHAKRISHNAN & K.SURENDRA MOHAN, JJ. ----------------------------------- W.P(C).Nos.17563, 19560 & 29667 OF 2008, 21971 of 2009, 26093 OF 2010 and 21362, 21363 & 21364 of 2011 ------------------------------------ Dated this the 7th day of September, 2011 JUDGMENT Thottathil B.Radhakrishnan,J. 1.W.P(C).Nos.17563/08, 19560/08, 29667/08 and 26093/10 raise the issue as to whether persons who are qualified through the Kshethra Kalapeedom under the Travancore Devaswom Board could constitute the sole category for being appointed in the service as Panchavadyam, Thakil and Nadaswaram players. An incidental issue has also been raised as to whether there could be exclusion of the women folk in toto. This situation arose because while there is no rule in TDB excluding women, they are excluded from entering as students into the Kshethra Kalapeedom and when the recruitment is confined to those who come out from the Kshethra Kalapeedom, the resultant situation is one where women would stand excluded. WPC.17563/08 & con. cases 2 2.W.P(C).Nos.21971/09, 21362/11, 21363/11 and 21364/11 are by those who have come out successfully with at least second class from the Kshethra Kalapeedom. They aspire to enter service and complain about the delay in recruitment. Going by the interim order in these cases, issued on 22.7.2010, there was an attempt to point out that the Board will consider some space for those who do not come to the Kshethra Kalapeedom but are trained under reputed teachers otherwise. 3.Following the order dated 19.8.2011, the draft of the rules relating to appointment of temple employees under the TDB is produced along with the memo filed by the learned counsel for TDB on 23.8.2011. The minimum qualification required in terms of those draft rules for the posts of Takil, Nadaswaram, Sambandhi (Panchavadyam, poojapattu, sankeerthanam) is a pass certificate issued by the Kshethra Kalapeedom, TDB in the concerned instrument or discipline. Rule XI among the draft rules provides that recruitment to WPC.17563/08 & con. cases 3 those categories shall be made by inviting applications from among candidates possessing pass certificate from the Kshethra Kalapeedom of the Board after publishing probable number of vacancies in two Malayalam Dailies having wide circulation. The list of candidates who have applied for the posts included in that schedule shall be prepared by applying the norms fixed in that rule. There is a procedure of selection by a committee from out of such list. The said rule has a proviso to the effect that in the absence of qualified hands from the Kshethra Kalapeedom, the Board may invite applications from candidates having pass certificate from recognised institutions imparting training in the concerned instrument or discipline and select candidates in accordance with the rules referred to therein. 4.With the aforesaid, we have TDB report No.170/10 by the learned Ombudsman for Travancore and Cochin Devaswom Boards. The said report has been submitted by the learned Ombudsman after hearing the counsel for the parties WPC.17563/08 & con. cases 4 concerned. Having regard to the different aspects of the case, we deem it appropriate to quote the following from that report. The said report, excluding the preliminaries, reads as follows: (1)“The main issue raised in the writ petitions is with regard to the appointment of temple employees in the categories of Thakil, Panchavadyam, Nadaswarm etc. only from among the persons who have undergone training in the Kshethra Kalapeedom. It is also pointed out that since admissions to Kshethra Kalapeedom are restricted to male candidates, female candidates are prevented from getting employment on the basis of sex only and it is stated to be discriminatory and violative of the Constitution of India. (2)The Secretary, Travancore Devaswom Board, has informed this Office that women candidates are at present not admitted in Kshethra Kalapeedom only for the reason that there is lack of basic facilities WPC.17563/08 & con. cases 5 for accommodating female candidates in the existing Kshethra Kalapeedoms. At the time hearing, it is also informed that since training is imparted in the “Gurukula Sampradayam”, the candidates have to be awakened at 4 a.m. and separate coaches will have to be appointed for female candidates and lodging facilities have to be given to them. It is further informed that the Board has taken a decision that as and when situation improves, inclusion of women candidates in the Kshethra Kalapeedom can be made possible. (3)It is true that there is no total prohibition for women employees for being appointed to the above posts. But practical difficulties will be there when women candidates are appointed in such posts as they have to work within the temple premises and during periods in which they are not expected to enter the temple precincts, they will have to arrange other trained employees which may not be easy. Though there are female employees like Kazhakam and Sweeper inside the temple, substitutes can be WPC.17563/08 & con. cases 6 arranged in their absence as no specific training is required for such work unlike nadaswaram, panchavadyam or Thakil. It is not a case of total prohibition but only restriction to the extent possible and necessary from the practical point of view. (4)Another aspect pointed out is that as per the existing Rules, only persons trained in Kshethra Kalapeedom are entitled to apply for the above posts. In this connection, it may be worth noticing that the Devaswom Board is spending several lakhs of rupees for giving training to such candidates for free food, accommodation etc., and their services have to be made use of by the Board after they complete their training. In the case of persons who are to be appointed on the basis of certificates issued by experienced persons in the field, it is pointed out that previous experience shows that persons appointed as Thakil, Nadaswaram etc., in the Board included persons who have not seen the instrument earlier and based on false certificates, employment WPC.17563/08 & con. cases 7 was given. Immediately after getting employment, they also got category change as drivers, watchers etc. The possibility of such certificates for getting employment cannot be ruled out whereas in the case of candidates coming out successfully from the Kshethra Kalapeedom they are assured to know the subject. It is also pointed out that the Rules can be so amended that in case there are no sufficient hands trained from the Kshethra Kalapeedom, others who have undergone training from reputed artists can also be appointed provided they furnish sufficient proof of their knowledge, after testing their ability at the time of interview. The draft of such Rules is presently under the consideration of the Devaswom Board after they were approved by the Devaswom Commissioner. (5)The Devaswom Board has spent towards the expenses of kshethra Kalapeedom at Attingal Rs.11,08,814/- for the year 2009-2010 alone.” WPC.17563/08 & con. cases 8 5.As rightly argued by the learned counsel for the TDB, the predominant thrust is not any intention to exclude women folk. The present situation in Kshethra Kalapeedom which follows Gurukula Sambradayam cannot be extended to female candidates, having regard to the requirement of more facilities to ensure their safety and also to extend to them facilities as would enable them to participate in the residential programme of teaching and other programmes commencing by 4 a.m. daily. It is also contended that women may find it inconvenient to attend to the entire course when trainings are done in connection with the temples. In the light of those facts and factors, it can only be held that there is no discrimination on grounds only of sex. What has been done is only a reasonable classification having regard to the totality of the relevant facts and the need of the establishment, including the primary requirement to uphold faith and religious beliefs, when it come to matters attendant to rituals in temples. WPC.17563/08 & con. cases 9 In the result, i. W.P(C).Nos.17563/08, 19560/08, 29667/08 and 26093/10 are dismissed. ii.W.P(C).Nos.21971/09, 21362/11, 21363/11 and 21364/11 are ordered directing that the Board will be at liberty to forthwith issue appointment orders to all eligible candidates. iii. No costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- K.SURENDRA MOHAN, Judge. kkb. WPC.17563/08 & con. cases 10 THOTTATHIL B.RADHAKRISHNAN & K.SURENDRA MOHAN, JJ. ----------------------------------- W.P(C).Nos.17563, 19560 & 29667 OF 2008, 21971 of 2009, 26093 OF 2010 and 21362, 21363 & 21364 of 2011 ------------------------------------ Dated this the 19th day of August, 2011 O R D E R Thottathil B.Radhakrishnan,J. 6.W.P(C).Nos.17563/08, 19560/08, 29667/08 and 26093/10 raise the issue as to whether persons who are qualified through the Kshetra Kalapeedom under the Travancore Devaswom Board could constitute the sole category for being appointed in the service as Panchavadyam, Thakil and WPC.17563/08 & con. cases 11 Nadaswaram players. An incidental issue has also been raised as to whether there could be exclusion of the women folk in toto. This situation arose because while there is no rule in TDB excluding women, they are excluded from entering as students into the Kshetra Kalapeedom and when the recruitment is confined to those who come out from the Kshetra Kalapeedom, the resultant situation is one where women would stand excluded. 7.We have, before us, the stand of the Board in the aforesaid regard and also the views of the learned Ombudsman, following earlier orders. 8.W.P(C).Nos.21971/09, 21362/11, 21363/11 and 21364/11 are by those who have come out successfully with at least second class from the Kshetra Kalapeedom. They aspire to enter service and complain about the delay in recruitment. Going by the interim order in these cases, issued on 22.7.2010, there was an attempt to point out that the Board WPC.17563/08 & con. cases 12 will consider some places for those who do not come to the Kshetra Kalapeedom but are trained under reputed teachers otherwise. 9.We are told that the Devaswom Commissioner has suggested some provisions in the draft rules which was perused by the learned Ombudsman and has been sent to the Board for its consideration and approval. We need to be told the contents of such draft rules and also the time frame within which the Board would finalise that issue. 10.Learned counsel for the TDB will place before us a copy of the draft rules and also mention as to when the Board would express finally on those rules. Post on 23.8.2011. H/o. THOTTATHIL B.RADHAKRISHNAN, Judge. WPC.17563/08 & con. cases 13 K.SURENDRA MOHAN, Judge. kkb.19/8. THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ----------------------------------- W.P(C).Nos.17563, 19560 & 29667 OF 2008, 21971 OF 2009 & 26093 OF 2011 ------------------------------------ Dated this the 25th day of May, 2011 O R D E R Thottathil B.Radhakrishnan,J. Apart from the question whether females can be considered for appointment in terms of the notification arising WPC.17563/08 & con. cases 14 for consideration in these cases, it needs to be examined whether the notification confining the field of choice to those who have passed out of Kshetrakalapeedom is in terms of any prescription made by rule or other lawful mode. Learned counsel for TDB seeks adjournment to place further materials on record. Post on 1.7.2011. H/o. copy to counsel for TDB. THOTTATHIL B.RADHAKRISHNAN, Judge. S.S.SATHEESACHANDRAN, Judge. kkb.25/5.