IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931 WA.No. 2140 of 2009() ------------------------------ AGAINST THE JUDGEMENT/ORDER IN WPC.20064/2009 Dated 18/09/2009 .................... APPELLANT(S): PETITIONER: ------------------------- TALIPARAMBA, TRICHAMBARAM, KANJIRANGAD DEVASOM, MANAGING COMMITTEE (TTK DEVASWOM), TALIPARAMBA-670 141, KANNUR, REPRESENTED BY ITS PRESIDENT. BY ADVS. MR.M.RAMESH CHANDER SMT.K.A.SANJEETHA MR.ANEESH JOSEPH RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, REVENUE (DEVASWOM) DEPARTMENT, TRIVANDRUM. 2. THE MALABAR DEVASWOM BOARD, CIVIL STATION, MALAPARAMBU, KOZHIKODE, REPRESENTED BY ITS PRESIDENT. 3. THE COMMISSIONER, MALABAR DEVASWOM BOARD, KOZHIKODE. 4. THE ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD, KASARAGOD. 5. M.P.KUBERAN, MUNDOT ILLAM, CHAVANAPPUZHA, P.O.KARIMBAM, TALIPARAMBA, KANNUR DISTRICT. W.A. NO.2140/2009 6. N.P.NARAYANAN NAMBOODIRI, S/O.LATE KRISHNAN NAMBOODIRI, NADUVATH PUDAYOOR ILLAM, KANIKKUNNU, KUPPAM P.O., TALIPARAMBA, KANNUR DISTRICT. R1 BY GOVT. PLEADER MR.R.BINDU R2 TO R4 BY ADVS. SMT.R.RANJINI R5 BY MR.V.CHITAMBARESH, SENIOR ADVOCATE R5 ADV. MR.JACOB SEBASTIAN R6 BY ADV. MR.MR.P.K.SURESH KUMAR THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22/02/2010, ALONG WITH WA NO. 2150 OF 2009 THE COURT ON 03/03/2010 DELIVERED THE FOLLOWING: tss K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------- W.A.Nos.2140 & 2150 of 2009 ---------------------------------------- Dated 3rd day of March, 2010 JUDGMENT Ravindran, J. The common appellant in these writ appeals is the petitioner in W.P.(C)No.20064 of 2009 from which W.A.No.2140 of 2009 arises and the first respondent in W.P.(C)No.1697 of 2009 from which W.A.No.2150 of 2009 arises. The writ petitions were heard and disposed of by the learned single Judge by a common judgment delivered on 18.9.2009. These writ appeals were therefore heard together and are being disposed of by this common judgment. The brief facts of the case are as follows. 2. The appellant in these appeals is the Taliparamba, Trichambaram, Kanjirangad Devaswom (T.T.K.Devaswom for short), which is governed by Ext.P1 scheme framed by the Court of the Subordinate Judge of Payyannur in O.P.No.60 of 1987. Ext.P1 scheme inter alia stipulates that the affairs of the temples and their endowments are to be administered by a Managing Committee consisting of eight members of whom five members are elected by the hereditary trustees from among themselves and three members from the public are appointed by the Hindu Religious and Charitable W.A.Nos.2140 & 2150 of 2009 2 Endowments Department. Paragraph 10 of Ext.P1 scheme stipulates that the Managing Committee shall appoint an Executive Officer or Manager to conduct the day to day affairs of the temples. 3. The Managing Committee of the appellant Devaswom placed Sri.E.K.Babu, the then Executive Officer of T.T.K.Devaswom under suspension pending disciplinary action, by order passed on 15.07.2006. Thereafter, Sri.M.Damodaran Namboodiri, the Executive Officer of Sree Durga Bhagavathy Temple was put in additional charge of the Executive Officer of T.T.K.Devaswom. When he expressed inability to continue to act as Executive Officer of T.T.K.Devaswom, the Managing Committee of the appellant Devaswom issued Ext.P2 notice dated 14.4.2008 inviting applications for appointment as Executive Officer of T.T.K.Devaswom on a temporary basis. The last date stipulated for submission of applications was 30.4.2008. It was also stipulated that the applicants should be aged below 40 years. Pursuant to Ext.P2 notice, Sri.M.P.Kuberan, the petitioner in W.P.(C) No.1697 of 2009 (the first respondent in W.A.No.2150 of 2009), whose date of birth is 12.1.1970 applied for appointment as Executive Officer. The Managing Committee of the appellant Devaswom that met on 7.5.2008 resolved to appoint him as Executive Officer on a temporary basis for a period of 179 days. Ext.P4 appointment order dated 8.5.2008 was thereupon issued. The petitioner in W.P.(C) No.1697 of 2009 (the first respondent in W.A.No.2150 of 2009), who W.A.Nos.2140 & 2150 of 2009 3 was a practicing lawyer thereupon informed the Bar Council of Kerala that he has suspended his practice with effect from 9.5.2008. The Secretary, Bar Council of Kerala in turn sent Ext.P5 letter dated 12.5.2008 to the petitioner in W.P.(C)No.1697 of 2009 (the first respondent in W.A.No.2150 of 2009) informing him that his voluntary suspension of practice with effect from 9.5.2008 has been recorded and the enrollment certificate surrendered by him received. Shortly thereafter, the Managing Committee of the appellant Devaswom dismissed Sri.E.K.Babu, the former Executive Officer of T.T.K.Devaswom from service with effect from 30.7.2008. The Managing Committee of the appellant Devaswom that met on 26.8.2008 therefore resolved to appoint the petitioner in W.P.(C) No.1697 of 2009 as Executive Officer of T.T.K.Devaswom on a regular basis. Ext.P6 order dated 1.9.2008 was thereupon issued appointing him as Executive Officer of T.T.K.Devaswom on a regular basis. 4. Rule 2 of the rules framed under Section 100(2)(p) and x(ii) of the Madras Hindu Religious and Charitable Endowments Act, 1951, published in the Fort St.George Gazette dated 25.09.1951 as amended by G.O.(MS)No.1148/81/RD dated 21.10.1981, stipulates that the upper age limit for appointment as Grade I Executive Officer shall not exceed 35 years as on the 1st January of the year of recruitment. The appellant Devaswom had after the petitioner in W.P. (C)No.1697 of 2009 was appointed as Executive Officer of W.A.Nos.2140 & 2150 of 2009 4 T.T.K.Devasom submitted Ext.P8 representation dated 26.7.2008 to the Government requesting the Government to exempt him from the upper age limit. That request was rejected by the Government by Ext.P7 letter dated 11.12.2008 on the short ground that the rules do not permit relaxation of the upper age limit. The decision of the Government was communicated to the Commissioner, Malabar Devaswom Board by Ext.P7 letter dated 11.12.2008. A copy thereof was communicated to the President of the Managing Committee of the appellant Devaswom. By that letter, the Government also directed the appellant Devaswom to terminate the service of the petitioner in W.P.(C)No.1697 of 2009 (the first respondent in W.A.No.2150 of 2009) and to take steps to appoint a qualified person as the Executive Officer. 5. Before the Government rejected the request made by the appellant Devaswom, the petitioner in W.P.(C)No.1697 of 2009 was not heard. The Government also did not take note of the rule framed under Section 100(1) of the Madras Hindu Religious and Charitable Endowments Act, 1951 which stipulates that the Government may exempt any person or religious institution or charitable endowment from all or any of the rules made under sub- sections (1) and (2) of Section 100 of the Madras Hindu Religious and Charitable Endowments Act, 1951. The petitioner in W.P.(C)No.1697 of 2009 therefore submitted Ext.P9 representation dated 12.1.2009 to W.A.Nos.2140 & 2150 of 2009 5 the President of the Malabar Devaswom Board constituted under Section 7 of the Madras Hindu Religious and Charitable Endowments Act, 1951, requesting the President of the Malabar Devaswom Board to permit him to continue in office as Executive Officer of T.T.K. Devaswom. The President of the Malabar Devaswom Board forwarded Ext.P9 representation to the State Government along with a recommendation to grant exemption from the upper age limit prescribed in the rules. It appears on 12.1.2009 itself, the Managing Committee of the appellant Devaswom passed Ext.P10 resolution resolving to terminate the service of Sri.M.P.Kuberan who was appointed as Executive Officer of T.T.K. Devaswom by Exts.P4 and P6 orders. 6. The aggrieved Executive Officer thereupon filed W.P.(C) No.1697 of 2009 in this Court challenging Ext.P7 order passed by the Government rejecting the request of the appellant Devaswom to exempt him from the upper age limit and Ext.P10 resolution passed by the Managing Committee of the appellant Devaswom to terminate his service. He also prayed for a declaration that he is entitled to continue in service pursuant to Exts.P4 and P6 orders. He also sought a direction to the Malabar Devaswom Board to consider the request made by him in Ext.P9 representation, after affording him an opportunity of being heard. W.P.(C)No.1697 of 2009 came up for admission on 15.1.2009. The writ petition was disposed of that day W.A.Nos.2140 & 2150 of 2009 6 itself with a direction to the Malabar Devaswom Board to consider Ext.P9 representation submitted by the Executive Officer and to pass appropriate orders thereon within three months from the date of receipt of a copy of the judgment. This Court also directed that till a decision is taken as directed by this Court, the status quo as on 15.1.2009 shall continue. The appellant Devaswom thereupon filed R.P.No.104 of 2009 seeking a review of the judgment delivered on 15.1.2009 in W.P.(C)No.1697 of 2009. It was contended that the Executive Officer who has been removed from service on 12.1.2009 is creating hurdles in the day to day administration of the Devaswom. By order passed on 23.1.2009 in R.P.No.104 of 2009 the learned single Judge, after hearing the learned counsel appearing for the appellant and the Executive Officer allowed the review petition and recalled the judgment delivered on 15.1.2009 in W.P.(C)No.1697 of 2009. On 23.1.2009 itself, the learned single Judge admitted W.P.(C) No.1697 of 2009 and passed Ext.P2 interim order produced in W.P.(C) No.20064 of 2009 directing the appellant Devaswom not to fill-up the post of Executive Officer of T.T.K. Devaswom on a permanent basis. 7. Shortly thereafter, on 28.1.2009, the Managing Committee of the appellant Devaswom appointed one Sri.P.K.Kuberan as Executive Officer of T.T.K. Devaswom on a temporary basis for a period of 89 days. Sri.P.Kunhikannan, a member of the Managing Committee of the appellant Devaswom objected to the said W.A.Nos.2140 & 2150 of 2009 7 appointment. The Commissioner, Malabar Devaswom Board thereupon passed an order dated 2.2.2009 cancelling the appointment of Sri.P.K.Kuberan as Executive Officer on a temporary basis. The appellant Devaswom and the said Sri.P.K.Kuberan thereupon jointly filed W.P.(C)No.3873 of 2009 in this Court challenging the said order. In W.P.(C)No.3873 of 2009 this Court passed an interim order on 5.2.2009 staying the operation of the order dated 2.2.2009 passed by the Commissioner, Malabar Devaswom Board. Sri.P.Kunhikannan at whose instance the order impugned in W.P.(C)No.3873 of 2009 was passed thereupon got himself impleaded as additional 5th respondent in W.P.(C)No.3873 of 2009. He also moved for vacating the interim order by filing I.A.No.2511 of 2009 in W.P.(C)No.3873 of 2009. That application was rejected by order passed on 24.3.2009. The learned single Judge also directed that W.P.(C)No.3873 of 2009 be heard along with W.P.(C)No.1697 of 2009. 8. While matters stood thus, the Managing Committee of the appellant Devaswom that met on 12.5.2009 passed Ext.P5 resolution, produced in W.P.(C)No.20064 of 2009 whereby it resolved to call for the explanation of the petitioner in W.P.(C)No.1697 of 2009 in relation to certain alleged acts of misconduct committed by him. Ext.P6 show cause notice dated 23.5.2009 produced in W.P.(C) No.20064 of 2009 was thereupon issued to which the petitioner in W.P.(C)No.1697 of 2009 submitted Ext.P7 reply. The Government W.A.Nos.2140 & 2150 of 2009 8 thereafter issued Ext.P8 order dated 29.6.2009 exempting the appellant Devaswom from the stipulation regarding the upper age limit prescribed in Rule 2(1) of the rules framed under Section 100(2)(p) and x(ii) of the Madras Hindu Religious and Charitable Endowments Act, 1951 for the limited purpose of appointing the petitioner in W.P. (C)No.1697 of 2009 as Executive Officer of T.T.K. Devaswom. The appellant Devaswom thereupon filed W.P.(C)No.20064 of 2009 challenging Ext.P8 Government order. In that writ petition, the appellant Devaswom contended that the Government do not have the power to pass an order of exemption and that the order granting exemption has been passed without hearing the appellant and other affected parties. It was also contended that the order of exemption was passed without taking note of the disciplinary proceedings contemplated against the petitioner in W.P.(C)No.1697 of 2009. 9. The three writ petitions were heard together. By the judgment impugned in these writ appeals, the learned single Judge held that there is no merit in the challenge to the order of exemption passed by the Government. W.P.(C)No.20064 of 2009 filed by the appellant Devaswom was dismissed. W.P.(C)No.1697 of 2009 was disposed of with a direction to the appellant Devaswom to implement the Government order granting exemption and to reinstate the petitioner therein in service. W.P.(C)No.3873 of 2009 filed by the appellant Devaswom and Sri.P.K.Kuberan was dismissed with the W.A.Nos.2140 & 2150 of 2009 9 observation that the appointee will be entitled to the benefits which he is otherwise entitled to for the service rendered by him till the date of the judgment. The appellant Devaswom has filed these writ appeals, canvassing the correctness of the judgment of the learned single Judge in W.P.(C)Nos.20064 of 2009 and 1697 of 2009 respectively. 10. We heard Sri.A.P.Chandrasekharan, the learned Senior Advocate and Sri.M.Ramesh Chander, the learned counsel appearing for the appellant, Sri.V.Chitambaresh, the learned Senior Advocate appearing for the petitioner in W.P.(C)No.1697 of 2009, Smt.R.Ranjini, the learned counsel appearing for the Malabar Devaswom Board, Smt.R.Bindu, the learned Government Pleader appearing for the State of Kerala, Sri.P.K.Suresh Kumar, the learned counsel appearing for the sixth respondent in W.A.No.2140 of 2009 and Sri.O.V.Maniprasad, the learned counsel appearing for the fourth respondent in W.A.No.2150 of 2009. We have also gone through the pleadings and the materials on record. The pleadings and the materials on record disclose that the Managing Committee of the appellant Devaswom had appointed the petitioner in W.P.(C)No.1697 of 2009 as Executive Officer initially on a provisional basis for a period of 179 days by Ext.P4 dated 8.5.2008 and thereafter on a regular basis by Ext.P6 order dated 1.9.2008. The Managing Committee of the appellant Devaswom had after the initial provisional appointment of the petitioner in W.P.(C)No.1697 of 2009 as Executive Officer submitted Ext.P8 representation dated 26.7.2008 W.A.Nos.2140 & 2150 of 2009 10 before the Government requesting the Government to exempt him from the upper age limit prescribed in the rules. In that application, the appellant Devaswom had also set out the reasons warranting the grant of such exemption. That request was rejected by the Government on the short ground that the law does not provide for the grant of such exemption. The aggrieved Executive Officer thereupon moved the Malabar Devaswom Board by submitting Ext.P9 representation produced in W.P.(C)No.1697 of 2009. The Malabar Devaswom Board in turn forwarded the said representation to the Government and acting on that representation the Government issued Ext.P8 order dated 29.6.2009 challenged in W.P.(C)No.20064 of 2009 granting exemption to the appellant Devaswom from the upper age limit prescribed in the rules for the limited purpose of appointing the petitioner in W.P.(C)No.1697 of 2009 as Executive Officer. 11. As noticed by the learned single Judge, the appellant Devaswom is a juristic person. The Managing Committee of the appellant Devaswom had initially requested the Government to exempt the Executive Officer appointed by them from the upper age limit prescribed in the rules. That request was rejected by the Government initially on the misconception that the Government are not empowered to pass an order of exemption. In our opinion, the stand initially taken by the Government in Ext.P7 produced in W.P.(C)No.1697 of 2009 cannot be sustained. The rules framed under Section 100(1) of the W.A.Nos.2140 & 2150 of 2009 11 Madras Hindu Religious and Charitable Endowments Act, 1951 specifically empower the Government to exempt any person or religious institution or charitable endowment from all or any of the rules made under sub-sections (1) and (2) of Section 100 of the Madras Hindu Religious and Charitable Endowments Act, 1951. The only limitation on the exercise of the said power is that the order of exemption thus issued shall not be less favourable to the person or religious institution or charitable endowment than that provided by the rule or rules from which exemption is granted. It was without noticing this power to grant exemption that the Government initially rejected the request made by the appellant Devaswom to exempt them from the operation of the rule prescribing the upper age limit in order to facilitate the appointment of the petitioner in W.P.(C)No.1697 of 2009 as the Executive Officer of T.T.K. Devaswom. Later, on being alerted about the existence of power in the Government to grant exemption, the Government issued Ext.P8 order produced in W.P.(C)No.20064 of 2009 exempting the appellant Devaswom from the upper age limit prescribed in the rules for the purpose of appointing the petitioner in W.P.(C)No.1697 of 2009 as the Executive Officer of T.T.K.Devaswom. We agree with the learned single Judge that the appellant Devaswom which moved the Government for exemption, cannot be heard to contend that the Government do not have the power to grant an order of exemption or that before the order of exemption was passed, the W.A.Nos.2140 & 2150 of 2009 12 appellant should have been put on notice or heard. We also agree with the learned single judge that as the appellant Devaswom is a juristic person with continued existence, the decision taken by the Managing Committee in office at a particular point of time cannot be altered merely by the reason of change in the constitution of the Managing Committee. 12. In Ext.P8 representation dated 26.7.2008 submitted by the then President of the Managing Committee of the appellant Devaswom to the State Government, it is very clearly stated that the petitioner in W.P.(C)No.1697 of 2009 is eminently fit to hold office as the Executive Officer of T.T.K. Devaswom. It is also stated in categorical terms that the experience of the petitioner in W.P.(C) No.1697 of 2009 as a Lawyer was also taken into consideration when the decision to appoint him as Executive Officer of T.T.K. Devaswom was taken. However, after the new Managing Committee of which Sri.P.E.Narayanan Namboodiri is the President assumed office, taking advantage of the decision initially taken by the Government declining to grant exemption from the upper age limit, the new Managing Committee that met on 12.1.2009 resolved to terminate the appointment of the petitioner in W.P.(C)No.1697 of 2009 as Executive Officer. In Ext.P10 resolution adopted by the Managing Committee the only reason stated is that in view of the Government order declining exemption, the petitioner in W.P.(C)No.1697 of 2009 is ineligible to W.A.Nos.2140 & 2150 of 2009 13 continue as Executive Officer. No other reason is stated in Ext.P10 resolution in support of the decision taken by the Managing Committee to terminate the appointment of the Executive Officer appointed as per Exts.P4 and P6 orders. Later, after W.P.(C)No.1697 of 2009 was filed, the new Managing Committee that met on 12.5.2009 passed Ext.P5 resolution produced in W.P.(C)No.20064 of 2009 whereby the Managing Committee resolved to call for the explanation of the petitioner in W.P.(C)No.1697 of 2009 into the complaint filed by Sri.P.E.Narayanan Namboodiri, a member of the Managing Committee. Ext.P6 show cause notice dated 23.5.2009 produced in W.P.(C) No.20064 of 2009 was thereupon issued. Thereafter, when Government passed Ext.P8 order of exemption, W.P.(C)No.20064 of 2009 was filed challenging that order. On a consideration of the totality of the facts and circumstances of the case, we are of the considered opinion that the challenge to Ext.P8 Government order produced in W.P.(C)No.20064 of 2009 is without any merit. Further, the learned single Judge has in the judgment under challenge protected the rights of the appellant Devaswom to proceed against the petitioner in W.P.(C)No.1697 of 2009 in respect of the alleged acts of misconduct committed by him. The learned single Judge has also held that the order of exemption will not in any way affect the rights of the disciplinary authority. We are in agreement with the learned single Judge that on the admitted facts of the case it cannot be said that the W.A.Nos.2140 & 2150 of 2009 14 Government have not acted on relevant considerations when it passed the order of exemption. For the reasons stated above, we hold that there is no merit in these writ appeals. The writ appeals fail and are accordingly dismissed. No costs. K.BALAKRISHNAN NAIR Judge P.N.RAVINDRAN Judge TKS