IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 8TH OCTOBER 2010 / 16TH ASWINA 1932 WP(C).No. 10358 of 2009(L) -------------------------------------- PETITIONER: ------------------- ADV. K.T.RAVEENDRANATH, TRUSTEE, SRI.MAMANIKUNNU MAHADEVI TEMPLE, MAMANAM, IRUKKUR, KANNUR DISTRICT. BY ADV. SRI.M.RAMESH CHANDER. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REP. BY THE SECRETARY, REVENUE (DEVASWAM) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER, MALABAR DEVASWOM BOARD, KOZHIKODE. 3. THE ASST. COMMISSIONER, MALABAR DEVASWOM BOARD, NEELESWARAM, KASARAGOD. 4. SRI.VEERABHADRA TEMPLE, CHERUVATHOOR, KANNUR, REPRESENTED BY ITS EXECUTIVE OFFICER. 5. P.MURALEEDHARAN, EXECUTIVE OFFICER, SRI.MAMANIKUNNU MAHADEVI TEMPLE, MAMANAM, IRIKKUR, KANNUR DISTRICT. W.P.(C). NO.10358/2009-L: *ADDL.R6 IMPLEADED: 6. SATHYANARAYANAN.TM, AGED 39 YEARS, CLERK, MARIYAMMAN TEMPLE, KANHANGAD, KASARAGOD DISTRICT. *IS IMPLEADED VIDE ORDER DATED 22/06/09 IN I.A. 7286/09. R1 BY GOVT. PLEADER SRI. P. NANDAKUMAR, R2 & R3 BY ADV. SRI.K.MOHANAKANNAN, S.C, R5 BY ADV. SRI.ANEESH JOSEPH, ADDL.R6 BY ADV. SRI.M.SASINDRAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.10358/2009-L: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER IN SCHEME FORMULATED AS PER ORDER IN O.A. NO. 82/2006 OF THE DEPUTY COMMISSIONER H.R & C.E. (ADMN), DTD. 04/12/2006. EXT.P.2: COPY OF THE APPOINTMENT ORDER OF THE R.5. DTD. 12/08/2008. EXT.P.3: COPY OF THE ORDER NO. H.R.H.7-719/2008 (1) OF THE COMMISSIONER OF H.R. & C.E., KOZHIKODE DTD. 29/08/2008. EXT.P.4: COPY OF THE G.O.(RT).NO.1084/2009/RD OF THE R.1. DTD. 23/03/2009. EXT.P.5: COPY OF THE ORDER NO. A2-4732/07 (K.DIS) OF THE ASSISTANT COMMISSIONER MALABAR DEVASWOM BOARD, PALAKKAD DT. 16/01/2009. EXT.P.6: COPY OF THE COMMUNICATION ISSUED BY R.2. DTD. 02/08/2008. EXT.P.7: COPY OF THE SERVICE REGISTER. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.10358 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of October, 2010 J U D G M E N T The petitioner is the hereditary trustee of Sri Mamanikunnu Mahadevi Temple, at Irikkur, in Kannur District. The post of Executive Officer of the temple became vacant. Pursuant thereto, Sri. P.K. Surendran Retired Deputy Commissioner (Admn) of H.R. & C.E Department was acting as Executive Officer of the temple as appointed by the trustee, which was approved by the Commissioner, H.R. & C.E Department. While so, on 15.07.2008, the 2nd respondent-Commissioner directed the petitioner to terminate the services of said Sri. P.K Surendran and to appoint a qualified person as Executive Officer as per rules and to submit the same for approval. Pursuant to the same, the petitioner chose the 5th respondent, who is an employee of Sree Veera Bhadra W.P.(C)No.10358 of 2009 -2- Devaswom, for such appointment and appointed him. Such appointment was forwarded to the Commissioner for approval. Approval was declined by Ext.P3 order on various reasons mentioned therein. The petitioner filed a revision before the Government against Ext.P3 order, which was also rejected by Ext.P4 order. The petitioner is challenging Exts.P3 & P4 orders in this writ petition. According to him, none of the reasons stated in Ext.P3 for refusing approval of the appointment is valid in law. The petitioner submits that, as is evident from Sections 48 and 66 of the Madras Hindu Religious and Charitable Endowments Act,1951 and the Rules made under Section 100 (x) of the said Act, read with Ext.P1 scheme approved by the Commissioner in accordance with the provisions of the Act, it is for the hereditary trustee to appoint employees of the temple including the Executive Officer subject to approval by the Commissioner and therefore the finding in Ext.P3 order that the trustee does not have powers to appoint an Executive Officer is not correct. He further submits that, the age limit W.P.(C)No.10358 of 2009 -3- prescribed in Rule 2 under the Rules framed under Section 100 of the Act applies only to direct recruitment under Rule 4 (a) (1) (i) and not to promotions prescribed under sub-rule (ii) thereof and therefore the rejection of approval on the ground that the 5th respondent is over aged is also unsustainable. His further contention is that, under Rule 4 (a) it is for the trustee to decide as to which of the three modes of the recruitment prescribed in the said rule should be followed and the petitioner has chosen sub-rule (ii). Under the said Rule, the petitioner can choose any employee of any devasthanam under the Malabar Devaswom Board, who possesses the educational and experience qualification prescribed therein and the petitioner is not bound to appoint a person from that rank list prepared by the Commissioner insofar as the Commissioner has no such powers to prepare a rank list for appointment of an Executive Officer in a devasthanam having a hereditary trustee where the power of appointment of employees is exclusively vested with the W.P.(C)No.10358 of 2009 -4- hereditary trustee. Therefore the 3rd reason mentioned in Ext.P3 that the power to appoint Executive Officer by promotion vests with the Commissioner and such appointment should be in accordance with the seniority and rank in the rank list prepared is clearly unsustainable is the contention of the petitioner. 2. A counter affidavit has been filed by the 2nd and 3rd respondents supporting Exts.P3 & P4 orders. But now the respondents 2 & 3 does not dispute the fact that, the power to appoint an Executive Officer vests with the trustee in accordance with Clause 4 of Ext.P1 Scheme, subject to approval of the Commissioner. But they would contend that, the petitioner cannot appoint a person of his choice arbitrarily. He can appoint only a person through a transparent selection process, in which the best suited person among the employees of various devasthanams have to be selected. Here, according to them, the petitioner has arbitrarily chosen one person without any selection process whatsoever, which is not a transparent method of selection W.P.(C)No.10358 of 2009 -5- and therefore the appointment is bad. The 5th respondent would support the petitioner, as is only to be expected. The 6th respondent has filed a counter affidavit. The 6th respondent is one of the persons included in the rank list prepared by the Commissioner for promotion to the post of Executive Officer and his rank therein is above that of the 5th respondent in the list. According to him, appointments can be made only from the rank list in accordance with the inter-se rank of the persons included therein. 3. I have considered the rival contentions in detail. 4. The issue involved in this writ petition narrows down to the question as to whether the petitioner has made the appointment of the 5th respondent as Executive Officer, in accordance with the Rule 4 (a) of the Rules made under Section 100 (x) of the Act. This is so because the respondents do not now dispute the power of the petitioner as hereditary trustee of the temple to appoint the Executive Officer insofar as Ext.P1 scheme has been approved by the 2nd respondent in accordance with the rules. Clause (4) of W.P.(C)No.10358 of 2009 -6- the said Scheme specifically stipulates that, the trustee may appoint an Executive Officer for the temple, which shall be subject to approval by the Commissioner. Clause 8 of Ext.P1 scheme further stipulates that, the salary and conditions of service of the Executive Officer shall be according to the rules framed under Section 100 (2) (p) & (x) (ii) of H.R. & C.E. Act 1951. Rule 4 (a) reads thus: “4. (a) (1) Appointment of an executive officer to any of the fist five grades may be:- (i) by direct recruitment : or (ii) by promotion either from the next lower grade; or from among the employees of the devasthanams who possesses the requisite educational qualification and who have put in not less than ten years serve; or (iii) by obtaining the loan of services of any member of the Hindu Religious and Charitable Endowments (Administration) Department or of any other department of the Government, if necessary.” (underlining supplied) Rule 3 (b) stipulates that, appointment of an Executive Officer of Grade-VI shall be by any of the methods mentioned in Clauses (i) and (iii) of sub-rule (a) (1) of Rule 4. Admittedly, the 5th respondent has not been W.P.(C)No.10358 of 2009 -7- appointed as an Executive Officer Grade-VI. That being so, as the appointing authority, the petitioner can choose one of the three methods prescribed in Rule 4 (a) (1). The petitioner has obviously chosen sub-rule (ii). Therefore, I shall confine myself to the validity of the appointment of the 5th respondent made by the petitioner under sub-rule (ii). The petitioner would raise a contention that, in view of the language of that rule, it is the absolute discretion of the petitioner to choose any employee of any Devasthanam under the Malabar Devaswom Board, who according to the petitioner is the most suitable for the petitioner's temple and in that process he is not circumscribed by any further restrictions insofar as the Act and Rules do not stipulate any such restrictions. He points out that, even according to the 2nd respondent, the 5th respondent has been included in the rank list prepared by the 2nd respondent for promotion to the post of Executive Officer and therefore admittedly the 5th respondent is duly qualified for such promotion. In view of the semi-colon (;) W.P.(C)No.10358 of 2009 -8- used in the rule, the petitioner would want this court to read the two parts of sub rule (ii) before and after the semi- colon appearing after the words “lower grade”, independently. Therefore according to him, he can either promote a person from his own Devaswom from the next lower grade or appoint any person, from among the employees of the Devasthanams, who possesses the requisite educational qualifications and who have put in not less than 10 years service. According to him, for that, the question of promotion of the best among the employees does not arise. The Rule gives him absolute discretion to appoint one among the employees of the Devasthanams who possesses the requisite qualifications prescribed, which only he has done by appointing the 5th respondent is his contention. According to him it is his satisfaction as to who is best suited for the temple which prevails in the matter of such selection. 5. I am unable to agree with that construction of sub rule (ii) which the petitioner wants the court to accept. If W.P.(C)No.10358 of 2009 -9- that construction is adopted, then the word 'either' appearing in the clause before the semi-colon would become totally meaningless insofar as that word 'either' is after the words 'by promotion'. The petitioner's contention would have been correct, had the word 'either' appeared before the words 'by promotion'. Here, the words 'either' and 'or' qualify the words 'by promotion'. Therefore, the petitioner can appoint a person by promotion either from the next lower grade or from among the employees of Devasthanams possessing the requisite qualifications. Of course, the counsel for the petitioner would stress on the semi-colon appearing in the sentence. I can only say that, that semi-colon can at best be only a mistake and cannot support the construction put by the counsel for that sentence. Therefore, according to me, the petitioner can make an appointment under sub rule (ii) only by promotion either from the next lower grade, which can be only from among the employees of his own temple, or from among the employees of other Devasthanams under the Malabar W.P.(C)No.10358 of 2009 -10- Devaswom Board, who possess the requisite qualification. 6. Even otherwise, assuming without admitting that the interpretation of the petitioner can be accepted, such selection from among employees from other Devasthanams, otherwise than by promotion can also be made only after following a transparent selection procedure and the petitioner cannot arbitrarily select a person of his subjective preference. 7. The next question is as to how the petitioner should select a person for promotion from among employees of other Devasthanams. Petitioner is not the employer of the employees of the temple. The employer is the deity. The petitioner is only a trustee of the temple. He can act only on behalf of the deity and not in his personal capacity. The Executive Officer is being paid from the coffers of the temple ie. of the deity. The money belonging to the deity comes from the public. Therefore that money is public money. Hence the Executive Officer is being paid out of public money and appointment to that post is a public W.P.(C)No.10358 of 2009 -11- appointment. That being so, the petitioner cannot have any absolute discretion to choose any person of his subjective satisfaction from among employees of other Devasthanams. Promotion can be made either by seniority, seniority-cum- merit or by selection from among the qualified persons in the feeder category. Therefore, the petitioner should satisfy this court that he has made the appointment of the 5th respondent after following a procedure for promotion known to law. As I have already stated, promotion can be either by seniority or by seniority-cum-merit or by selection. Admittedly, the seniority rule has not been followed in this case. Then, the petitioner has to satisfy this court that, he has selected the 5th respondent after a process of selection known to law for selection to public appointment. The petitioner has no case that, the petitioner has followed a selection process known to law. Therefore, I am not satisfied that, the 5th respondent's appointment by the petitioner as Executive Officer can be countenanced insofar as he has not been appointed so, after following a W.P.(C)No.10358 of 2009 -12- transparent selection process known to law. 8. But I do not find any merit in the contention of respondents 2 & 3 that age limit of 35 years applies to appointments under clause (ii) of Rule 4 (a) also. I do not think that, the rules provide for the same. From the rules, I find that, the age limit prescribed under Clause (ii) applies only to direct recruitment. It can only be so since for 'by promotion' appointment the candidates should have put in not less than 10 years service. It is highly unlikely that, any temple will have an employee having 10 years service below the age of 35 years. As such the intention of the Rule maker cannot have been to make the age limit of 35 years applicable to appointment by promotion under Clause (ii) also. Other provisions of the Act also permits only such a conclusion. In any event, the fixation of age limit of 35 years for direct recruitment and promotion for persons with minimum 10 years of service would be arbitrary and against the object sought to be achieved by the rules. Therefore, such an argument would not only be against the provisions W.P.(C)No.10358 of 2009 -13- of the Act and Rules but also arbitrary and against the intention behind the rules. 9. None of the other reasons in Ext.P3 was pressed into service by the respondents 2 and 3 in support of their contentions and therefore I am not considering the sustainability of the same separately. 10. Despite the above said findings, I am not inclined to straight away cancel the appointment of the 5th respondent insofar as, if I do so it will cause inconvenience not only to the temple but also to the 5th respondent as he is already working in the petitioner's temple for quite sometime. In the above circumstances, this writ petition is disposed of with the following terms: The petitioner shall make a transparent selection from among employees of the Devasthanams desirous of being considered for promotion to the post of Executive Officer in the petitioner's temple and select a person for such appointment by promotion, either on the basis of seniority or making a selection after giving an opportunity to all W.P.(C)No.10358 of 2009 -14- eligible persons in all Devasthanams to participate in the selection process. The petitioner shall make such appointment and forward that appointment order to the 2nd respondent for approval, who shall take further proceedings thereon in accordance with the observations contained in this judgment. Till then, the 5th respondent shall be allowed to continue as the Executive Officer of the petitioner's temple. If the petitioner chooses somebody other than the 5th respondent as Executive Officer, the 5th respondent shall be reverted to his original Devasawom namely Sree Veerabhadra Devaswom. In such a situation the 4th respondent would be entitled to all service benefits as if he had never ceased to be the employee of the Sree Veera Bhadra Temple, including any promotion as Executive Officer, if he was eligible for such promotion in preference to anybody else. Till the above process is completed, the 5th respondent shall be continued to be paid the salary of the Executive Officer from the petitioner's temple, which he was drawing hitherto. The selection W.P.(C)No.10358 of 2009 -15- process shall be completed within a period of four months from the date of receipt of a copy of this judgment. S. SIRI JAGAN JUDGE shg/