The Guruvayur Devaswom vs The Department Of Revenue (Devaswom) on 29 September, 2016

[Cites 21, Cited by 0]

Kerala High Court

The Guruvayur Devaswom vs The Department Of Revenue (Devaswom) on 29 September, 2016

Whether the Government is justified in not forwarding a panel of three suitable candidates for appointment as 'Administrator' of the Guruvayoor Devaswom, in terms of Section 14 of the Guruvayoor Devaswom Act, 1978 (hereinafter referred to as the 'Act'), but for extending the deputation of the existing officer, whose service was spared to the Devaswom one year ago, is the point to be considered; more so when, no such 'extension of deputation' was ever sought for by the Guruvayoor Devaswom. In other words, whether the power of appointment conferred upon the Devaswom as per Section 14 of the Guruvayoor Devaswom Act could be nullified by the Government by effecting the appointment in an indirect manner by way of extending the deputation, is the question.

W.P.(C)No. 31451 OF 2017 2

2. Ext.P6 order passed by the Government on 27.09.2017 extending the deputation of the incumbent is under challenge, at the instance of the Devaswom. The Administration of the Guruvayoor Devaswom , incorporated under Section 3 of the Guruvayoor Devaswom Act , 1978 is vested with the Managing Committee of the Devawom constituted under Section 4 of the Act. The Managing Committee consists of 9 members including the Zamorin Raja, Karnavan of Mallisserri Illom, Thantri of the temple, a representative of the employees and five persons, one of whom shall be a member of Scheduled Caste nominated by the Hindus among the Council of Ministers (having interest in the temple). The Administrator is the Chief Executive Officer of the Guruvayoor Devaswom, who shall not be below the rank of a Deputy Collector, as stipulated under Section 14 of the Act. On receipt of the request from the Devaswom, it is for the Government to forward a panel containing the names of suitable officers ( not below the rank of Deputy Collector) and it is for the Managing Committee of the Devaswom to select and appoint any one of the officers from the said panel, as the Administrator. If W.P.(C)No. 31451 OF 2017 3 there is any delay in completing the procedure for regular appointment under Section 14 of the Act or if the post is temporarily vacant, the Government is competent to appoint an officer not below the rank of Dy.Collector, to be in additional charge of the Administrator for a period not exceeding 'three months', in exercise of the power under Section 16 of the Act. .

3. On intimating the requirement in the above regard, the matter was considered and a panel of three officers containing the names of the second respondent and two others was forwarded by the Government, as per letter dated 17.09.2016 for selection and appointment as Administrator of the Guruvayoor Devaswom. After considering the particulars, the Managing Committee of the Devaswom, as per Ext.P1 resolution No.96 dated 29.09.2016, resolved to select and appoint the second respondent as the Administrator of the Devaswom for a period of one year and decided to request the Government to sanction deputation of the second respondent in this regard. It was accordingly, that the Government sanctioned the deputation of the second respondent for a period of one year, as per the W.P.(C)No. 31451 OF 2017 4 relevant G.O. dated 30.09.2016, pursuant to which the second respondent took charge as Administrator of the Devaswom on 01.10.2016.

4. The term of the second respondent as the Administrator of the Guruvayoor Devaswom was to expire on 30.09.2017 and considering the urgent need to identify a suitable hand and to fill up the post, the Managing Committee of the Guruvayoor Devaswom, as per Ext.P2 resolution dated 11.07.2017 decided to request the Government to forward a panel of officers of the Government not below the rank of Deputy Collector, which was forwarded to the Government along with Ext.P2(a) letter dated 20.07.2017. Since there was no response, Ext.P3 reminder , based on the resolution dated 26.08.2017 was also sent to the Government on 02.09.2017.

5. In the meanwhile, the Government, as per the letter dated 31.08.2017 instructed the Guruvayoor Devaswom to forward a copy of the judgment passed by this Court in W.P.(C) 26187 of 2011 dealing with the appointment of Administrator, which in turn was forwarded, requesting the Government to W.P.(C)No. 31451 OF 2017 5 forward a panel of officers not below the rank of Deputy Collector for selection and appointment as Administrator, vide Ext.P4 dated 19.09.2017. As per the said proceedings, the petitioner Devaswom also alerted the Government as to the adverse circumstances, if any delay is involved and if at all there is any further delay, the Government was requested to appoint an officer of the Government, not below the rank of Deputy Collector, to be in additional charge as the Administrator, invoking the power under Section 16 of the Act. The said proceedings were issued, based on the resolution taken on 18.09.2017.

6. It is contented by the petitioner Devaswom, that there was still no response from the part of the Government. In the said circumstance, the Managing Committee of the Devaswom met on 27.09.2017 and considering the lapses on the part of the second respondent in taking timely action/implementing the decisions of the Managing Committee, resolved that continuance of the second respondent as the Administrator of the Devaswom would not be in the best interest of the Devaswom and hence it W.P.(C)No. 31451 OF 2017 6 was decided not to extend the term of appointment or to re- appoint him as the Administrator. The petitioner Devaswom also resolved to request the Government to appoint another officer of the Government, not below the rank of Deputy Collector, from 01.10.2017 onwards and to forward a panel of officers in this regard. The Government was also alerted as to the duties to be performed by the Administrator under the Act, particularly being the Chief Executive Officer and Custodian of one of the keys of the Lockers and Bhandarams, which were to be opened and closed to meet the timely requirements. It is for the Administrator to sign and supervise the various financial transactions,viz., payment of Salary, Pension, renewal of Fixed Deposits etc. and all the Bills above Rs.10 lakhs are to be signed by the Administrator. Since the second respondent was not having any authority to function as the Administrator, after expiry of his tenure, i.e. from 01.10.2017 onwards, urgent steps were sought to be made as per Ext.P5 resolution dated 27.09.2017, which was forwarded to the Government along with Ext.P5(a) letter dated 27.09.2017.

W.P.(C)No. 31451 OF 2017 7

7. The case of the petitioner is that, it is without any regard to the facts and proceedings as above, that Ext.P6 order came to be passed by the Government on 27.09.2017 extending the period of deputation of the second respondent till 31.07.2018 (which happens to be the date of his retirement, on attaining the age of superannuation). This according to the petitioner Devaswom is quite contrary to the mandate of Section 14 of the Act and hence the challenge.

8. A counter affidavit has been filed on behalf of the first respondent/Government, seeking to sustain Ext.P6, mainly contending that as per Rule 140 of Part I KSR , the initial period of deputation of the second respondent was ordered by the Government for a period of 'one year', which was extendable upto five years (as per the said provision). According to the first respondent, it was for the Government to re-call its employee who stands deputed or to extend the period of deputation. The first respondent contends that, if at all the service of the second respondent was not palatable to the Devaswom, a resolution had to be taken for withdrawal, in terms of Section 15(4) of the Act W.P.(C)No. 31451 OF 2017 8 and that no such resolution had been passed by the Devaswom so far. It is further pointed out that, Section 33 of the Act gives power to the Government to call for and examine the records of the Managing Committee in respect of any proceedings, subject to the requirements as mentioned therein. It is also pointed out that the conditions of service of the Administrator shall be as per the provisions of sub-sections (1), (2), and (4) of Section 15 and the Regulations in force ; adding that none of the above provisions stipulates or restricts the period of appointment of the Administrator as to be for 'one year'. It is stated that no Regulation has been framed by the Managing Committee regarding the conditions of appointment of the Administrator as well. It is further pointed out that, there was absolutely no allegation against the second respondent in Ext.P2 or Ext.P4 and that the insinuation came to be levelled against the second respondent for the first time only as per Ext.P5, which according to the Government had no basis at all. The course and proceedings pursued by the second respondent have been sought to be justified with reference to the proceedings filed before this W.P.(C)No. 31451 OF 2017 9 Court and also before the Supreme Court, with regard to various aspects, particularly in effecting the construction of Queue Complex and in evicting the Shop owners based on the verdicts passed by this Court, adding that there was a stay and later, 6 months' time has been granted by the Apex Court vide Ext.R1(a), which would expire only on 06.01.2018.

9. The contents of the counter affidavit have been sought to be rebutted by the petitioner Devaswom in the reply affidavit, pointing out that Rule 140 of Part I KSR has no application to the case in hand; also adding that the power of the Managing Committee of the Devaswom to appoint the Administrator includes the power to fix the period of appointment as well. Inapplicability of Section 33 of the Act is also asserted in the said reply affidavit. In support of the statements made in Ext.P5, various factual aspects have been pointed out in paragraphs 8 to 10 of the reply affidavit. The petitioner Devaswom further asserts that the reliance sought to be placed on Rule 9B of Part II KS & SSR by the Government, to extend the deputation, is not applicable to the instant case, as the power contemplated W.P.(C)No. 31451 OF 2017 10 therein is totally in a different context. The manner in which appointment of the Administrator was being effected in the Devaswom, the resolution passed, request made to the Government to submit a panel of suitable employees and as to the selection and appointment of one person from the panel, by the Managing Committee of the Devaswom, the deputation ordered by the Government etc have been illustrated by producing copies of the relevant proceedings issued on earlier instances as Exts.P7/P7(a) and P8/P8(a) causing extension of deputation. In the instant case, no such resolution was taken by the Devaswom to extend the deputation of the second respondent, nor was there any request made before the Government in this regard, under which circumstance, Ext.P6 order extending the deputation ought not to have been passed by the Government unilaterally, is the contention put forth by the petitioner Devaswom.

10. The second respondent has filed a counter affidavit seeking to justify the action of the Government in having issued Ext.P6, extending his deputation by placing reliance on Rule 140 W.P.(C)No. 31451 OF 2017 11 of Part I KSR . As contended by the Government, the second respondent also places reliance on Rule 9B of Part II KS & SSR and section 33 of the Guruvayoor Devaswom Act in support of his contentions. It is further pointed out that the appointment of Administrator was not included in the 'Agenda' of the meeting held on 27.09.2017, when Ext.P5 resolution was taken. The allegations levelled against him in Ext.P5 are sought to be rebutted by putting forth his version in this regard.

11. Incidentally, it is to be noted that an interim order of stay of Ext.P6 was granted by this Court when the writ petition was admitted on 03.10.2017. Subsequently, on bringing the urgent requirement to open the Lockers and Bhandaram to the notice of this Court and that one of the keys was with the second respondent, appropriate arrangements were made by this Court as per the interim order dated 12.10.2017, whereby the RDO, Thrissur was assigned the duty in this regard and to discharge all the functions of the Administrator for the time being. By way of further proceedings I.A.No.16863 of 2017 came to be filed by the Devaswom seeking for direction to get various other duties W.P.(C)No. 31451 OF 2017 12 also discharged by the said RDO. Because of the workload of the RDO, the learned State Attorney suggested the name of Mr. M.B. Gireesh, Deputy Collector Revenue Recovery to be appointed as an officer in terms of Section 16 of the Act for the time being, till a final decision is rendered by this Court. Appropriate orders were passed in this regard on 31.10.2017, accepting the said suggestion. The petitioner Devaswom filed another petition, as I.A.No.17895 of 2017, seeking to direct the RDO, Thrissur to hand over the keys of Bhandarams and Lockers of the Guruvayoor Devaswom to Shri M.B. Gireesh, Dy. Collector (Revenue Recovery), Thrissur, which was considered and allowed as per the order dated 09.11.2017, taking note of the various needs mentioned in the affidavit in support of the I.A..

12. Mr. P. Gopal, the learned counsel for the petitioner Devaswom submits that, in so far as the power to appoint the Administrator is vested with the Managing Committee of the Devaswom, as clearly provided in Section 14 of the Act and so far as no extension of deputation of the second respondent on completion of his tenure of one year was ever sought for by the W.P.(C)No. 31451 OF 2017 13 Devaswom, Ext.P6 extension of deputation ordered by the Government is beyond the power and competence of the Government. Reference is made to various provisions in the 'Act' and also provisions of the KS & SSR (Rule 9B of Part II) and Rule 140 of Part I KSR . Reliance was sought to be placed on various judgments passed by this Court and the Apex Court as well, particularly, 1979 KLT 350 [Krishnan vs. Guruvayoor Devaswom], 1985 KLT 629(FB) [Narayanan Namboodiri & others vs. State of Kerala and others] , 2005(2)KLT 779 [M.P. Gopalakrishnan Nair vs. State of Kerala] , AIR 1954 SC 217 [Vice Chancellor vs. S.K. Ghosh] , 2012(3)KLT 868 [Aneesh Kumar vs. State of Kerala], AIR 2000 SC 2076 [Kunal Nanda vs. Union of India] etc.

13. Section 2(a) of the Act defines the term "Administrator", which means the Administrator appointed under Section 14 of the Act. Section 14 reads as follows:

"14. Appointment ofAdministrator:

(1) The Committee shall appoint an officer of Government not below the rank of Deputy Collector to be the Administrator for the Devaswom, from among a panel of names furnished by the W.P.(C)No. 31451 OF 2017 14 Government.

(2) No person shall be appointed under sub-section(1) unless he professes the Hindu Religion and believes in temple worship. (3) The Administrator appointed under the Guruvayoor Devaswom Act, 1971 (6 of 1971) and holding office at the commencement of this Act, shall, until the appointment of an Administrator under sub-section(1) or until the expiry of a period of three months from such commencement, whichever is earlier, be deemed to be the Administrator appointed under sub-section (1)..

From the above, it is quite clear that Section 14 is having three limbs;

firstly, that the officer to be appointed as Administrator shall be a Govt. Officer, not below the rank of Deputy Collector secondly, the Government is to forward a panel of three officers to the Managing Committee of the Guruvayoor Devaswom; and thirdly, it is for the Managing Committee of the Guruvayoor Devaswom to appoint a person from the said panel. .

14. Earlier, under the old Act of 1971, the power to appoint Administrator was with the Government, which provision was declared as unconstitutional and was struck down by a Full Bench of this Court as per the decision reported in 1979 KLT 350. (cited supra).After commencement of the new Act, Section 14 dealing with appointment of 'Administrator' was subjected to W.P.(C)No. 31451 OF 2017 15 challenge before this Court, as the power was taken away from the Government and was conferred upon the Devaswom. After making a reference to the earlier Full Bench decision in 1979 KLT 350(cited supra), validity of the provision was upheld by another Full Bench of this Court as per the decision reported in 1985 KLT 629(FB) (cited supra). It is true that the aforesaid verdict was subjected to challenge before the Apex Court , which led to the ruling rendered by the Supreme Court in 2005 (2) KLT 779 [M.P. Gopalakrishnan Nair vs. State of Kerala]. . But interference made was only with regard to the observations in paragraph 12 of 1985 KLT 629 (FB) (cited supra) leading to the finding that the Clauses (d) and (e) of sub- section(1) of S.4 relating to nomination of members to the Committee by the Hindus among the Council of Ministers will be interpreted as "Hindus among the Council of Ministers having faith in temple worship", as according to the Apex Court, "Hindu Ministers" were enough to deal with the situation. The said limited extent of interference is having no application to the case in hand.

W.P.(C)No. 31451 OF 2017 16

15. Section 15 of the Act stipulates that Administrator has to be a Full time officer. Section 15 is reproduced below:

"15. Conditions of Service of Administrator: (1) The Administrator shall be a full-time officer of the Devaswom and shall not undertake any work unconnected with bis office without the permission of the Committee.

(2) The Administrator shall be paid out of the funds of the Devaswom such salary and allowances as the Government may with the concurrence of the Committee fix in this behalf.

(3) There shall be levied a contribution from the funds of the Devaswom towards leave allowances, pension and provident fund of the Administrator to the extent required by the rules for the time being in force.

(4) The Government shall withdraw the Administrator from his office if a resolution recommending such withdrawal is passed by a majority of not less than two-thirds of the total membership of the Committee.

(5) Subject to the provisions of sub-section (1),(2) and (4), the conditions of service of the Administrator shall be such as may be determined by the Committee by regulations made in this behalf.

By virtue of Section 15(4), Government is bound to withdraw the Administrator from his office, if a resolution recommending such withdrawal is passed by a majority of not less than 2/3rd of the W.P.(C)No. 31451 OF 2017 17 total members of the Committee. There is no case for the petitioner Devaswom that any such resolution has been passed, as rightly pointed out by the learned State Attorney and the learned Counsel appearing for the second respondent. As such, the situation contemplated under the said provision is not relevant or significant in so far as the present case is concerned .

16. Section 10 deals with the duties of the Managing Committee, while Section 17 of the Act deals with the powers and duties of the Administrator. The above provisions and in particular, Section 14, clearly reveal that the power of appointment is vested with the Managing Committee, though the field of selection is to be set by the Government, by forwarding a panel of three candidates, not below the rank of Deputy Collector. It is settled law, that the 'power of termination' is corollary with the 'power of appointment'. In so far as the power of appointment is vested with the Managing Committee, it is very much open for them to choose or fix the tenure of appointment as well.

17. In the instant case, as borne by Ext.P2 resolution W.P.(C)No. 31451 OF 2017 18 dated 11.07.2017, (which was attended by 8 members out of the total of 9- except Zamorin Raja) the decision was unanimous, to go for fresh appointment in terms of Section 14 and to request the Government to forward a panel in terms of Section 14 of the Act. This is more so, since Ext.P1 Resolution dated 29.09.2016, which led to the appointment of the second respondent, was specifically for a period of one year, as decided by the Committee unanimously. It was based on the said stipulation in Ext.P1 and the request made to depute the second respondent, that the Government issued Ext.R2(a) G.O. dated 30.09.2016 ordering deputation for a period of one year. The requirement to effect a fresh appointment as resolved in Ext.P2 resolution was further reiterated in Ext.P3 and Ext.P4 proceedings addressed to the Government, pursuant to the relevant resolutions taken in this regard. Eventhough no reason has been stated in Ext.P3/P4 for fresh selection on expiry of the tenure of the second respondent, reasons came to be rendered while taking Ext.P5 resolution on 27.09.2017, referring to various lapses/insinuations in respect of the service of the second respondent. W.P.(C)No. 31451 OF 2017 19

18. The averments contained in the pleadings raised by the Devaswom have been sought to be rebutted by both the respondents in their counter affidavits. But this Court is of the view that the alleged lapses/insinuations against the second respondent shall not form the subject matter of consideration, in so far as the issue is mainly with regard to the power of appointment in terms of Section 14 of the Act and sustainability of extension of deputation, unilaterally made by the Government, even without any request for such extension of deputation.

19. Scope of Rule 9B of Part II KS & SSR sought to be relied on both by the Government and by the second respondent becomes relevant in this context. Rule 9B of Part II KS & SSR reads as follows:

"9B. Notwithstanding anything contained in these Rules or in the Special Rules, the Government may, in public interest and for reasons to be recorded in writing, depute or transfer officers from one service to another or from one Department to another within the same service or send to or take in officers from other Governments or statutory bodies subject to such conditions as the Government may in each case impose:

Provided that in the case of transfers in the interest W.P.(C)No. 31451 OF 2017 20 of security of State, the reason need not be recorded if Government are satisfied that it is not expedient to disclose the reasons for such transfer.

Provided further that the Commission shall be consulted in respect of such deputations and transfers whenever such consultation has not been specifically excluded by the provisions of the Kerala Public Service Commission (Consultation)Regulations, 1957."

It is quite clear that the power of the Government to invoke the said provision and ordering deputation is in the given context involving public interest and subject to recording the reasons in writing. This will arise, only if the Managing Committee of the Devaswom resolves to extend the deputation. In so far as no such resolution was ever passed by the Devaswom, it was not a case where the power under Rule 9B, Part II KS & SSR could have been invoked by the Government. Same is the position with regard to Rule 140(c) of Part I KSR, which is reproduced below:

"140.(a) No officer may be transferred to foreign service against his will:

                   xx      xx     xx

            (b)    xx      xx     xx

) The period of deputation to foreign service shall be W.P.(C)No. 31451 OF 2017 21 initially for one year and may be extended year by year upto a continuous period of five years in the aggregate. The officer on foreign service shall be relieved of his duties on the date of expiry of the sanctioned period unless the competent authority, has, with requisite approval, extended the period of deputation, in writing, prior to the date of its expiry. In the event of the officer overstaying he shall be liable to disciplinary action and the period of overstay shall not be counted for the purpose of pension and that any increment due during the period of overstay shall be deferred with cumulative effect, till the date on which the officer rejoins his parent cadre. No ex post facto approval for regularization of overstay or foreign service shall be allowed. The officer shall be precluded from drawing pay and allowances from the date on which the sanctioned term of foreign service expires.

20. It is true that deputation can be granted initially for a period of 'one year', which is extendable by a maximum of 'five' years, in the aggregate. The officer has to be relieved on the date of expiry of the tenure, unless the competent authority has extended the deputation based on the request made by the requisitioning authority. In the instant case, the Government who is the lending authority, has extended the deputation W.P.(C)No. 31451 OF 2017 22 without any request for extension by the requisitioning authority, ie Guruvayoor Devaswom Managing Committee, which obviously is contrary to the mandate/scheme of the Rules and contents of the Circular bearing No.15618/Adv.C1/90/P&ARD, dated 05.12.1990 stipulating the guidelines for deputation of Government employees on foreign service from one department to another. [Clause (i),(ii),(iii),(vi) and (vii)]. The petitioner Devaswom has asserted that, on earlier occasions as well, whenever the Devaswom found it appropriate to extend the deputation of the officer already deputed by the Government, to be appointed as the Administrator in terms of Section 14 of the Act, the Devaswom had been passing proper resolutions in this regard and on forwarding the same, making a request, it was being considered and extension of deputation was being ordered by the Government as per the relevant G.Os. The course and events in this regard have been substantiated as per Exts.P7/P7

(a) and P8/P8(a) proceedings, in the case of extension of deputation of a person by name K.M. Reghuraman, appointed as the Administrator. However, in the case of the second W.P.(C)No. 31451 OF 2017 23 respondent, such a course has been given a 'go bye', by the Government, who unilaterally chose to extend the deputation of the second respondent, as per Ext.P6, without any request for extension of deputation from the Devaswom which does not satisfy the test of law and hence it is bad.

21. It is settled law that no person sent on deputation has a vested right to continue as a deputationist for ever. An issue in this regard had come up for consideration before this Court in the case of an IAS official, which was dealt with and the legal position was declared by this Court in 2001(3)KLT 620 (Sukumar N. Ommen vs. Union of India). The deputation sought for from Manipur to have appointment in Kerala was for 'three years', as putforth before the Union Government (lending authority); whereas the State of Kerala (borrowing authority) sanctioned deputation only for 'two years'. On raising a challenge to enable the petitioner therein to continue in Kerala, the matter was dealt with elaborately and the position was answered against the deputationist as per the above ruling; paragraph 4 of which is relevant and hence it is extracted W.P.(C)No. 31451 OF 2017 24 below:

"We are of the view that petitioner has not made out a case warranting interference under Article 226 of the Constitution of India. Petitioner belong to Manipur- Tripura Joint Cadre. Government of India after getting concurrence of State Governments of Manipur, Tripura and Kerala had issued notification dated 15. 7. 1999 under Rule 6 (1) of the Indian Administrative Service (Cadre) Rules, 1954 according approval for deputation of the petitioner for a period of two years with effect from the date of his joining duty. He accordingly joined duty on 22.

9. 1999. That period is now over. No further order has been issued by the government of India extending the period of deputation after getting approval from the respective States. Petitioner has no legal right to insist that he should allowed to continue on deputation after the period of deputation ordered by the Government of India is over. Terms of deputation of a cadre officer to be deputed to another State depends upon concurrence of the lending Government as well as the borrowing Government. The mere fact that the lending Government has accorded its approval does not mean that the borrowing Government have to give its approval. It depends upon variety of factors. The Central Government could exercise powers under Rule 6 (1) of the Indian administrative Service (Cadre) Rules only after getting approval from the respective States."

W.P.(C)No. 31451 OF 2017 25

22. The principles of deputation have been declared in crystal clear terms by the Apex Court in [ AIR 2000 SC 2076] (cited supra)holding that there is no vested right in this regard and that the deputationist can be repatriated on the request of either the lending department or the borrowing department . Paragraph 6 of the said decision is relevant which hence is reproduced below:

"6. On the legal submissions made also there are no merits whatsoever. It is well settled that unless the claim of the deputationist for permanent absorption in the department where he works on deputation is based upon any statutory Rule, Regulation or Order having the force of law, a deputationist cannot assert and succeed in any such claim for absorption. The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation. The reference to the decision reported in Rameshwar Prasad v. M.D., U.P. Rajkiya Nirman Nigam Ltd., (1999) 8 SCC 381 : 1999 AIR SCW 3427 : AIR 1999 SC 3443 : 1999 Lab IC 3285 : (1999 All LJ 2220) is inappropriate since, the consideration herein was in the W.P.(C)No. 31451 OF 2017 26 light of statutory rules for absorption and the scope of those rules. The claim that he need not be a graduate for absorption and being a service candidate, on completing service of 10 years he is exempt from the requirement of possessing a degree need mention, only to be rejected. The stand of the respondent-department that the absorption of a deputationist being one against the direct quota, the possession of basic educational qualification prescribed for direct recruitment i.e., a degree is a must and essential and that there could no comparison of the claim of such a person with one to be dealt with on promotion of a candidate who is already in service in that department is well merited and deserves to be sustained and we see no infirmity whatsoever in the said claim."

23. With regard to the contention raised by the respondents, placing reliance on Section 33 of the Act, it is true that the Government may call for and examine the records of the Commissioner or of the Committee in respect of any proceedings, not being a proceeding in respect of which a suit or application to the court is provided by the Guruvayoor Devaswom Act. But it is only to satisfy themselves that the provisions of the Guruvaryoor Devaswom Act have not been violated or to ensure that the interests of the Devaswom have been safeguarded. Only in W.P.(C)No. 31451 OF 2017 27 circumstances where violation of the provisions of the Act is established or found not in the interest of the Devaswom, would the Government be justified in modifying, annulling or reversing the same or ordering reconsideration, after affording an opportunity of hearing to the party, whose rights might be prejudicially affected in this regard. Section 33 of the Act is not attracted to the issue involved herein, in so far as Ext.P6 issued by the Government is concerned.

24. There is a contention for the respondents that no 'Agenda' was prepared by including the relevant item, to have it had as subject matter of resolution in Ext.P5 and that the same was stated as taken on the same day when the Government had passed Ext.P6 on 27.09.2017. According to the petitioner/Devaswom, Ext.P5 resolution was taken on 27.09.2017 and it was forwarded to the Government by e-mail on the same date by 4.00 p.m.; whereas Ext.P6 order passed by the Government, though dated 27.09.2017, was sent to the Guruvayoor Devaswom by e-mail only on the next day, i.e. by 5.00 p.m. on 28.09.2017. It is also pointed out that, a meeting W.P.(C)No. 31451 OF 2017 28 was convened by the Chairman of the Managing Committee and that all the members were aware as to the purpose of the meeting, who accordingly had participated in the meeting. Since the members were aware of the proceedings/purpose of the meeting, non inclusion of the item in the 'Agenda' has no significance at all. Reliance is sought to be placed on the verdict passed by the Apex Court in AIR 1954 SC 217(cited supra) (Constitution Bench of the Supreme Court). (Paragraph 16 and

17). We have gone through the said verdict and we find that the verdict passed by the High Court interdicting the proceedings (stating that there was no notice )was interfered with by the Apex Court and reversed the same, holding that it was not necessary, as all those concerned were aware of the purpose of the meeting.

25. In this context, it is relevant to have a look at the Circular No.15618/Adv.C1/90/P&ARD, dated 05.12.1990 stipulating the guidelines for deputation of Government employees on foreign service from one department to another. Clause (iii) of the said Circular reads as follows:

W.P.(C)No. 31451 OF 2017 29 " (iii) In the case of deputation of State Government employees to the Government of India, other State Governments and to institutions over which the State Government has no control, the lending department will only issue the order placing the services of the employee at their disposal. Further action regarding appointment, extension of deputation or termination of deputation will be taken by the borrowing authority."

It is quite clear from the said guidelines, that further action for appointment/extension of deputation can only be on the basis of the request made by the borrowing authority. The course of action to be followed by the lending department is only by leaving it at the disposal of the borrowing department in respect of the instances mentioned therein, In the instant case, since the borrowing department is Guruvayoor Devaswom, which is a statutory body constituted in terms of Section 3 of the Guruvayoor Devaswom Act and not being under the control of the Government, it should have been left to the borrowing department, instead of passing an order by the Government itself as per Ext.P6.

W.P.(C)No. 31451 OF 2017 30

26. With regard to the contention of the respondents that no regulations have been framed by the Guruvayoor Devaswom as to the conditions of service of the Administrator, it is true that power is vested with the Committee under Section 39 of the Act to frame Regulations, with the approval of the Government, which of course includes the conditions of service of the Administrator and other officers/employees of the Devaswom. It is also true that Regulations already framed under Section 39 of the Act do not provide for the conditions of service of the Administrator, except for mentioning the 'scale' and 'method of appointment', i.e., as per the panel to be forwarded by the Government and that the officer shall not be below the rank of Deputy Collector etc. This according to the learned counsel for the petitioner is obviously for the reason that 'Administrator' of the Devaswom has necessarily to be an officer of the Government and there is no power for the Devaswom to cause any change in his service conditions detrimental to the rights being enjoyed under the Government.

27. The learned State Attorney as well as the learned W.P.(C)No. 31451 OF 2017 31 counsel for the second respondent have put up a contention that there is much difference between words 'decided' as used under Section 7(4) and the word 'resolution' used in Section 15(4) of the Act. Reliance is also sought to be placed on the verdict passed by a learned single Judge of this Court, reported in 2015 (2)KLT 204 [Binu vs. State of Kerala] ( paragraph 36) as to the difference in the meaning with reference to the Kerala Municipality Act, 1994 . A decision rendered by the Gujarat Full Bench in Jayendrasingh Bhupatsingh Diama vs. State of Gujarat [2012 (3)KLT SN 21 (Case No.24 Guj.(FB)] is also referred to in support thereof. This Court does not find it necessary to do any microscopic analysis in this regard as it is for the Committee to take a 'decision' and the decision of the Committee is in the form of a 'resolution', which is a procedural aspect. All the relevant decisions taken so far including with regard to the appointment of the Administrator earlier and extension of deputation as borne by Exts.P7/P7(a ), P8/P8(a), Ext..P1) are in such manner; and hence there cannot be any further controversy from the part of the respondents in this W.P.(C)No. 31451 OF 2017 32 regard. This is more so since, the issue involved is not governed by a situation covered by Section 15(4) of the Act for causing withdrawal of the deputationist on resolution by 2/3rd majority, which provision has already been held as not relevant to the case in hand. Ext.P2 resolution is with reference to the expiry of the term of appointment of the second respondent. Same is the position with regard to Ext.P4 as well. It is also relevant to note that Section 8(c) of the Act clearly stipulates that no act of the Committee shall be invalidated on the ground of any irregularity in the procedure of the Committee not affecting the merits of the case.

28. In the light of the above discussion, this Court is of the view that Ext.P6 extension of deputation was ordered by the Government /lending department unilaterally, without any resolution taken by the petitioner Devaswom Board in this regard or any request for extension of deputation. It is declared that the competent authority to effect appointment of the Administrator under the 'Act' is none other than the Guruvayoor Devaswom Managing Committee and the only rider is that, such W.P.(C)No. 31451 OF 2017 33 appointment has to be from a panel of three suitable hands identified by the Government, who should be not below the rank of Deputy Collector. By virtue of Ext.P6, the field of appointment has been indirectly taken over by the Government, which is not permissible under the statute and hence it is liable to be set aside. It is ordered accordingly.

29. The first respondent/Government is directed to forward a panel of suitable officers of the Government , not below the rank of Dy. Collector as envisaged under Section 14 of the Act for selection and appointment of one among them as the Adminisitrator of the Guruvayoor Devaswom, which shall be done at the earliest, at any rate, within one month.

30. It is also open for the first respondent/Government to consider whether the name of the officer by name M.B. Gireesh, appointed by this Court as per order dated 31.10.2017, as suggested by the State Attorney ( to be an officer under Section 16 of the Act) to meet the requirements of the Administrator as a stop-gap arrangement, if so, to include him also in the panel.

31. Since the continuation of the second respondent as W.P.(C)No. 31451 OF 2017 34 the Administrator of the Guruvayoor Devaswom pursuant to Ext.P6 was interdicted by this Court as per order dated 03.10.2017 and since no alternative posting has been reportedly given to him by the Government so far and further since there is no contribution or fault on the part of the second respondent in not rendering the service, it shall be for the first respondent/Government to give appropriate posting to the second respondent immediately and to have his service regularised, if any formal order is necessary in this regard.

The Writ Petition is allowed. No cost.

P.R. RAMACHANDRA MENON, JUDGE SHIRCY V, JUDGE lk

Unlock Advanced Research with PRISMAI

Kerala High Court