IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 26TH MAY 2011 / 5TH JYAISHTA 1933 WP(C).No. 14226 of 2011(C) -------------------------- PETITIONER(S): --------------- M. GANGADHARAN, KAIMONY LAVANAM, MAJOR VAZHAPPALLY DEVASWOM, CHANGANACHERRY GROUP, S/O.P.K. MADHAVA PANICKER, AGED 47 YEARS, RESIDING AT SHREEVILASAM, THRIPPERUMTHURA.P.O, MAVELIKKARA-5. BY ADV. SRI.S.JAYAKRISHNAN RESPONDENT(S): --------------- 1. THE TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, NANTHANCODE, THIRUVANANTHAPURAM - 695 001. 2. THE DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM - 695 001. 3. THE ASSISTANT DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, CHANGANACHERY GROUP, CHANGANACHERRY, PIN - 686 101. 4. THE SUB GROUP OFFICER, VAZHAPPALLY DEVASWOM, CHANGANACHERRY, PIN - 686 103. BY S.C. SRI.P.GOPAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.14226 OF 2011 ---------------------------------------------- Dated this the 26th day of May, 2011 JUDGMENT The petitioner's father was in the karanma service of the Vazhappally Sree Mahadeva Temple, Changanacherry under the Travancore Devaswom Board. He retired from service on 9.7.1979, The petitioner was appointed against that post on 10.7.1979. However, the petitioner's service was terminated with effect from 18.10.1982 on the ground that he had not attained the age of 18 years at the time of appointment. A long legal battle ensued between the petitioner and the Travancore Devaswom Board in respect thereof. Ultimately, by Ext.P2 judgment in O.P.No.26072/1999, the Division Bench directed the Board to engage the petitioner as karanma right holder within a period of one month from the date of receipt of a copy of that judgment. The petitioner was reinstated in service in accordance with the judgment. The petitioner now submits that the petitioner is entitled to backwages from 28.5.1983 to 12.6.2008 also. Therefore, the petitioner seeks the following reliefs: W.P.(C)No.14226/11 2 “i) to call for the records relating to Ext.P4 and quash the original of the same by issuing a writ of certiorari or other appropriate writ or order. ii) to issue a writ of mandamus or other appropriate writ, order or direction, directing the respondents to disburse the back wages due to the petitioner for the period from 28.5.1983 to 12.6.2008 and to regularise the service of the petitioner, while he was out of service, forthwith.” 2. The learned Standing Counsel for the Travancore Devaswom Board submits that in O.P.No.26072/1999, the petitioner had claimed service benefits also with effect from 28.5.1983. While directing reinstatement of the petitioner within a period of one month from the date of receipt of a copy of the said judgment, the Division Bench did not give any relief regarding backwages and therefore, it must be presumed that the Division Bench rejected the claim for service benefits including backwages. He would submit that therefore this writ petition is barred by constructive res judicata insofar as the claim of the petitioner is concluded by Ext.P2 judgment in that original petition. 3. I have considered the rival contentions in detail. Opening paragraph of Ext.P2 judgment reads thus: “This original petition has been preferred praying to quash Ext.P7 order passed by the Travancore Devaswom Board and also for a direction to the respondent to post the W.P.(C)No.14226/11 3 petitioner in the position due to him taking into consideration his karanma right and to disburse the service benefits from 28.05.1983.” The operative portion of the judgment reads thus: “We heard counsel for the petitioner as well as the Standing Counsel for the Board at length. We notice that many of the legal questions raised were answered in Ext.P2 judgment in O.P.No.2048 of 1991 and the impugned order was passed taking a contrary view to that expressed by this court in the above mentioned judgment even though the Board was directed to consider the matter afresh. The only ground on which the Board sustained the order of termination of service was that the petitioner had not completed 18 years of age when he was engaged on 10.07.1979. We notice that the above stand taken by the Board was based on Rule 23 of the Rules regarding the Recruitment, Service and Conduct of Devaswom Servants which was made in exercise of the powers conferred by clause (e) of sub-section (2) of Section 35 of the Travancore Cochin Hindu Religious Institution Act as amended by Notification dated 5.10.1977, which reads as follows: 'The minimum age required for appointment in service either as karanma or as contingent employee shall be eighteen years. No temple employees, either Karanma or contingent, who has entered service before 1.1.1972 will be retained in service after the completion of his 60th year of age. Temple employees appointed after 1.1.1972 either in Karanma or contingent service will not be retained after completion of his 55th year of age'. Above mentioned rule was made applicable to Karanma holders only with effect from 6.8.1981. Petition was appointed on 10.04.1971 and therefore the above mentioned provision would not apply to the petitioner. Division Bench of this court in Travancore Devaswom Baord v. Chellappan Pillai (1998 (1) K.L.T.16) considered the effect of Rule 23 of the Rules on Karanma holders and held that they cannot be treated as servants of the Devaswom and they can be treated so only after 6.8.1981 after the promulgation of W.P.(C)No.14226/11 4 the Kerala Service Inam Lands (Vesting and Enfranchisement) Act, 1981 by which karanma right was abolished. In such circumstances, we are of the view that engagement of the petitioner from 10.07.1979 cannot be faulted. If that be so, in the absence of any other claimant petitioner is entitled to hold that right and hence he was rightly engaged by the Sub Group Officer. No other member of the family has staked any superior claim and therefore we have to take that karanma right would enure to the benefit of the petitioner. We are not impressed by the argument advanced by the counsel for the Board that he was engaged by the Sub Group Officer who has no power to engage the petitioner. In our view, being a Karanma right holder there is no illegality in engaging the petitioner. We therefore quash Ext P7 order and direct the Board to engage the petitioner as Karanma right holder within a period of one month from the date of receipt of a copy of this judgment. Original petition is disposed of as above.” Therefore, it is clear that in that original petition the petitioner had claimed backwages also. The judgment does not give any relief regarding backwages. That means, the Division Bench did not find it fit to grant the petitioner backwages. That being so, I am satisfied that this writ petition is hit by constructive res judicata. Accordingly, the writ petition is dismissed. S. SIRI JAGAN, JUDGE acd W.P.(C)No.14226/11 5 W.P.(C)No.14226/11 6