Madras High Court
G.John Kennedy vs The Moderator / Bishop In-Charge on 4 August, 2021
Author: R.Mahadevan
Bench: R.Mahadevan
W.P.(MD)No.7294 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.08.2021
CORAM
THE HON'BLE MR.JUSTICE R.MAHADEVAN
WP(MD)No.7294 of 2021
and
WMP(MD)No.5555 of 2021
G.John Kennedy ... Petitioner
Vs.
1. The Moderator / Bishop in-charge,
CSI Tirunelveli Diocese,
No.5, Punithavathiar Street,
Palayamkottai, Tirunelveli,
Tirunelveli District.
2. The Moderator's Commissary,
CSI Tirunelveli Diocese,
16, North High Ground Road,
Bishop Stowe, Palayamkottai,
Tirunelveli District.
3. The Hon'ble Administrators,
CSI Tirunelveli Diocese, Tirunelveli.
4. The Election Officers,
CSI Tirunelveli Diocese, Tirunelveli.
5. The CSI Tirunelveli Diocese,
rep.by its Bishop,
CSI Tirunelveli Diocese,
No.5, Punithavathiar Street,
Palayamkottai, Tirunelveli,
Tirunelveli District.
6. The Pastorate Chairman,
https://www.mhc.tn.gov.in/judis/
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W.P.(MD)No.7294 of 2021
Subbulapuram Pastorate,
CSI Tirunelveli Diocese,
Subbulapuram.
7. Sundar Muthusamy ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of Certiorari calling for the records relating
to the impugned order passed by the 4th respondent in his Nil
Proceedings dated 23.03.2021 and quash the same as illegal.
For Petitioner : Mr.V.Meenakshisundaram
For R1 & R2 : Mr.Veera Kathiravan, Sr.C.
For R3 : Mr.Thangasivan
For R7 : Mr.R.J.Karthick
ORDER
Challenging the order dated 23.03.2021 passed by the fourth respondent, the petitioner has come up with this writ petition.
2.It is the case of the petitioner that he is a godown watchman in Q1066 Rajapalayam Consumer Co-operative Society. Pursuant to the notification issued with respect to conduct of election for Diocesan Council, he filed his nomination for the 1st phase of election on 07.02.2021. After submitting his salary slip and the certificate issued by the Registrar of Co-operative Societies, his nomination was accepted, he was permitted to participate in the same and was elected as a member of https://www.mhc.tn.gov.in/judis/ 2/10 W.P.(MD)No.7294 of 2021 the Diocesan Council. Subsequently, he has participated in the 2nd phase of election on 06.03.2021 and 3rd phase of election on 13.03.2021. While so, the seventh respondent filed WP.No.4709 of 2021, which by order dated 10.03.2021, was disposed of, directing the Election Officers to consider the seventh respondent's representations dated 11.01.2021 and 06.02.2021 and pass appropriate orders, on merits and in accordance with law, after providing an opportunity of personal hearing to all the parties. Pursuant to the same, the fourth respondent / Election Officers, issued notice of hearing, conducted enquiry and passed an order dated 23.03.2021 thereby declaring the petitioner as a Government servant and his nomination and election as Diocesan council member of Subbulapuram pastorate as invalid and consequently, ordering fresh election. Feeling aggrieved, the petitioner is before this court with the writ petition.
3.Upon notice, the contesting seventh respondent filed a detailed counter affidavit, wherein, it is inter alia stated that Rule 14A of the Tamil Nadu Government Servants Conduct Rules imposes a prohibition for a government servant to get associated with any religious organisation; and a Division Bench of this court in WP(MD)No.18943 of https://www.mhc.tn.gov.in/judis/ 3/10 W.P.(MD)No.7294 of 2021 2020 by its order dated 22.12.2020, granted an order of injunction, thereby prohibiting the person, who is holding any post and drawing salary from the Government, to contest the election for religious institutions. It is also submitted that the Administrators appointed by this court vide order no.7 dated 06.01.2021 had also prohibited the persons working and receiving government salary in any department / organizations and held that they are not eligible to contest for any post in the church / diocese and hence, the order passed by the fourth respondent does not call for any interference by this court. The counter affidavit further proceeds to state that the petitioner produced a certificate dated 18.01.2021 issued by the Cooperative sub Registrar / Managing Director that he is working as a salesman in Q1066 the Rajapalayam Consumer's Co-op. Wholesale stores Ltd., Virudhunagar District, which disclosed that the said society is under the administration and audit of the government of Tamil Nadu. That apart, pursuant to the letter given by the election officers dated 24.03.2021, the Managing Director, co-operative society, Tirunelveli Region has replied on 24.03.2021 that there is a clear bar in Rule 149(6) for the petitioner / employee from contesting the election. Therefore, according to this respondent, the contention of the petitioner that he is not a government servant and his nomination cannot https://www.mhc.tn.gov.in/judis/ 4/10 W.P.(MD)No.7294 of 2021 be rejected based on the order impugned herein, has no legs to stand.
4.The learned counsel for the petitioner submitted that the petitioner cannot be termed as government servant, simply because his co-operative society / employer is coming under the administrative control of the state government; and his society is in no way funded by the state government and he was paid salary from and out of his co-operative society income / profit; and therefore, he cannot be equated with other persons, who are termed as government servants. Thus, according to the learned counsel, the impugned order passed by the fourth respondent, treating the petitioner as government servant, is liable to be quashed.
5.Heard the learned counsel appearing for the respective respondents. According to them, as the petitioner is receiving salary from the government funded society, he cannot be participated in the Diocesan council election according to the provisions of the Co-operative Societies Rules. Therefore, the fourth respondent/ Election Officers have rightly declared the nomination and election of the petitioner as Diocesan council member of Subbulapuram pastorate as invalid and consequently, https://www.mhc.tn.gov.in/judis/ 5/10 W.P.(MD)No.7294 of 2021 ordered fresh election, which does not require any interference at the hands of this court.
6.This court considered the submissions made by all the parties and also perused the materials placed.
7.It is not in dispute that the petitioner is working in Q1066 Rajapalayam Consumer Co-operative Society, Virudhunagar District and he has participated in the Diocesan Council election. Pursuant to the order dated 10.03.2021 passed by this court in WP(MD)No.4709 of 2021 filed by the seventh respondent, the fourth respondent / Election Officers have passed the impugned order dated 23.03.2021 against the petitioner herein.
8.It is seen from the order impugned herein that the fourth respondent / Election Officers, after detailed analysis of the evidence available before the same and upon considering the rival submissions made by the parties and also applying the legal proposition that there is clear prohibition for government servant from contesting any election in the CSI Tirunelveli Diocese, have observed that the co-operative https://www.mhc.tn.gov.in/judis/ 6/10 W.P.(MD)No.7294 of 2021 employees are also government servant; and there is a clear cut prohibition for government servant to contest the CSI Diocesan Election. Having observed so, the Election Officers have ultimately come to a conclusion that the petitioner is a co-operative society employee equal to a government servant contested the Diocesan council member election without the prior permission of his superior officers or Board; he has disobeyed or violated the prohibition order of the High court and the Administrators; and hence, his nomination is liable to be rejected as it is illegal and invalid and consequently, his election as Diocesan council member is also not sustainable and it shall be declared as null and void and his membership as Diocesan council member of Tirunelveli Diocese is cancelled.
9.It is an admitted fact that the petitioner is a government servant and there is clear prohibition for government servant from contesting the CSI Diocesan election. It is not the case of the petitioner that after getting prior permission, he contested the election. The supreme court in Krishnamoorthy v. Sivakumar and others [(2015) 3 SCC 467] categorically held that the right to contest an election is a plain and simple statutory right. Therefore, this court is of the opinion that the https://www.mhc.tn.gov.in/judis/ 7/10 W.P.(MD)No.7294 of 2021 findings so rendered by the fourth respondent / Election Officers are perfectly valid in law and the same warrant no interference.
10.In such view of the matter, there is no merit in the writ petition and it is accordingly, dismissed. No costs. Consequently, connected miscellaneous petition is closed.
04.08.2021 Index : Yes/No Internet : Yes/No rk To
1. The Moderator / Bishop in-charge, CSI Tirunelveli Diocese, No.5, Punithavathiar Street, Palayamkottai, Tirunelveli, Tirunelveli District.
2. The Moderator's Commissary, CSI Tirunelveli Diocese, 16, North High Ground Road, Bishop Stowe, Palayamkottai, Tirunelveli District.
3. The Administrators, CSI Tirunelveli Diocese, Tirunelveli.
4. The Election Officers, CSI Tirunelveli Diocese, Tirunelveli.
5. The Bishop, CSI Tirunelveli Diocese, CSI Tirunelveli Diocese, No.5, Punithavathiar Street, Palayamkottai, Tirunelveli, https://www.mhc.tn.gov.in/judis/ 8/10 W.P.(MD)No.7294 of 2021 Tirunelveli District.
6. The Pastorate Chairman, Subbulapuram Pastorate, CSI Tirunelveli Diocese, Subbulapuram.
R.MAHADEVAN, J.
rk https://www.mhc.tn.gov.in/judis/ 9/10 W.P.(MD)No.7294 of 2021 WP(MD)No.7294 of 2021 04.08.2021 https://www.mhc.tn.gov.in/judis/ 10/10