Kerala High Court
Mahesh Marikkal vs Board Of Trustees Of Sree Mookambika on 28 February, 2006
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
TUESDAY, THE 5TH DAY OF FEBRUARY 2013/16TH MAGHA 1934
WP(C).No. 13560 of 2008 (L)
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PETITIONER(S):
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MAHESH MARIKKAL, S/O.GOVINDA,
KOROTH HOUSE, VARAM P.O., MUNDAYAD.
BY ADV. SRI.M.RAMESH CHANDER
RESPONDENT(S):
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1. BOARD OF TRUSTEES OF SREE MOOKAMBIKA
KSHETHRAM, REP. BY ITS CHAIRMAN,
PALLIKKUNNU, KANNUR-4.
2. THE ASSISTANT COMMISSIONER,
THALASSERY DIVISION, HR&CE (ADMN.), THALASSERY.
3. THE EXECUTIVE OFFICER,
SREE MOOKAMBIKA KSHETHRAM,
PALLIKKUNNU, KANNUR-4.
4. THE COMMISSIONER,
HR & CE (ADMN.) DEPARTMENT, KOZHIKODE.
5. DEPUTY COMMISSIONER,
HR & CE DEPARTMENT, KOZHIKODE.
6. STATE OF KERALA,
REP. BY ITS SECRETARY TO
REVENUE (DEVASWOM) DEPARTMENT,
TRIVANDRUM.
R1& R3 BY ADV. SRI.MAHESH V RAMAKRISHNAN, SC.
R2, R4 & R5 BY ADV. SRI.V.KRISHNA MENON, SC, MALABAR DB.
R6 BY SPL. GOVT. PLEADER MR.C.S. MANILAL.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 05-02-2013, ALONG WITH W.P.(C)NO. 13603 OF 2008, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
rs.
WP(C).No. 13560 of 2008 (L)
APPENDIX
PETITIONER'S EXHIBITS:-
EXT.P1 COPY OF THE NOTIFICATION DATED 28/02/2006.
EXT.P2 COPY OF THE MEMO DATED 21/04/2006.
EXT.P3 COPY OF THE ORDER OF THIRD RESPONDENT.
EXT.P4 COPY OF THE DEPOSIT RECEIPT FOR Rs.3000/-.
EXT.P5 COPY OF THE GOVERNMENT ORDER DATED 13/02/2006.
EXT.P6 COPY OF THE ORDER OF THE THIRD RESPONDENT
DATED 10/07/2006.
EXT.P7 COPY OF THE JUDGMENT IN W.P.(C)NO. 18414/2006
DATED 15/09/2006.
EXT.P8 COPY OF THE SHOW CAUSE NOTICE DATED 25/09/2006.
EXT.P9 COPY OF THE REPLY TO EXT.P8 DATED 06/10/2006.
EXT.P10 COPY OF THE ORDER DATED 07/11/2006 ISSUED BY THE
THIRD RESPONDENT.
EXT.P11 COPY OF THE JUDGMENT DATED 05/12/2006 IN
W.P.(C)NO. 32229/2006.
EXT.P12 COPY OF THE APPEAL FILED BY THE PETITIONER AS A.P. NO.8/2006
BEFORE THE 5TH RESPONDENT DATED 20/12/2006.
EXT.P13 COPY OF THE RESOLUTION DATED 07/01/2006.
EXT.P14 COPY OF THE RESOLUTION OF THE TRUSTEE BOARD
DATED 03/03/2006.
EXT.P15 COPY OF THE LETTER DATED 09/12/2005.
EXT.P16 COPY OF THE LETTER DATED 09/01/2006.
EXT.P17 COPY OF THE LETTER DATED 28/01/2006.
EXT.P18 COPY OF THE LIST OF CANDIDATES.
EXT.P19 COPY OF THE ORDER DATED 19/01/2007.
2/-.........
WP(C).No. 13560 of 2008 (L)
EXT.P20 COPY OF THE ORDER OF THE COMMISSIONER DATED 24/09/2007.
EXT.P21 COPY OF THE JUDGMENT IN W.P.(C)NO. 32368/2007
DATED 22/11/2007.
EXT.P22 COPY OF THE REVISION FILED BY THE PETITIONER BEFORE
THE 6TH RESPONDENT.
EXT.P23 COPY OF THE ORDER OF THE 6TH RESPONDENT REJECTING EXT.P22.
EXT.P24 COPY OF THE REPORT OF THE ASSISTANT COMMISSIONER.
EXT.P25 COPY OF THE NOTIFICATION.
RESPONDENT'S EXHIBITS:-
EXT.R1A COPY OF THE MINUTES OF THE BOARD OF TRUSTEES OF
SREE MOOKAMBIKA TEMPLE, DATED 03/03/2006, 14/05/2006,
10/08/2006 AND 01/11/2006.
//TRUE COPY//
P.A. TO JUDGE
rs.
C.K. ABDUL REHIM, J.
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W.P.(c) Nos. 13560 & 13603 OF 2008
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DATED THIS THE 5th DAY OF FEBRUARY, 2013
J U D G M E N T
The petitioner in W.P (c) No.13560/2008 was a person appointed as 'Vazhipad-cum-Office Clerk' at Sree Mookambika Kshethram, Pallikunnu, Kannur. The petitioner in W.P (c) No.13603/2008 was appointed as 'Attender' in the same temple. Within a short period after their appointments, the 3rd respondent had issued Ext.P6 order cancelling the appointments and terminated service of the petitioners. This was challenged before this court in W.P (c) No.18414/2006. In Ext.P7 judgment this court found that cancellation of the appointments were made without affording opportunity to the petitioners to offer their explanations. Hence the proceedings of the 3rd respondent was quashed, with liberty reserved to the competent authority to take fresh steps after affording proper opportunity to the petitioners. Pursuant to Ext.P7 judgment Ext.P8 notice was issued by the 3rd respondent calling for objections from the petitioners against proposal for W.P.(c) Nos.13560 & 13603/2008 -2- cancellation of their appointments. Main allegation contained in the notice is that the appointments were made in violation of relevant Rules and without creation of the posts with due knowledge of the Trustees. It was also alleged that the HR & CE Department was persuaded to take a decision only based on misrepresentation of facts. In Ext.P8 it is mentioned that the then Executive officer was suspended from service and disciplinary action was initiated against him with respect to the appointments made. With respect to the procedure adopted for appointments, allegation was raised to the effect that the posts were not notified with due publicity and no proper opportunity was afforded for enough candidates to apply.
2. The petitioners submitted explanations to Ext.P8. But through Ext.P10 the 3rd respondent had confirmed the proposal finding that the posts were created not in accordance with decision of the Trustee Board and that the HR & CE Department was misrepresented. It was also found that there was no evidence regarding due publication W.P.(c) Nos.13560 & 13603/2008 -3- of the notification inviting applications. The 3rd respondent had categorically found that the petitioners were appointed only because of the special interest of the then Executive officer, who was subsequently suspended. On that basis the appointments were cancelled and service of the petitioners were terminated.
3. Eventhough the petitioners have approached this court challenging Ext.P10 decision, they were relegated to appellate remedy. Appeals filed before the 5th respondent were disposed of through Ext.P19 produced in W.P (c) No.13560/2008 (Ext.P16 in the other case). Almost all the findings contained in Ext.P10 were upheld by the 5th respondent. However it is specifically observed that under Section 48 of the Hindu Religious and Charitable Endowments Act, 1951, the power to appoint temple servants vested with the Trustees. It is observed that the posts were created only at the instance of the then Executive officer, because he had maneuvered the formalities regarding reporting necessity of the post and W.P.(c) Nos.13560 & 13603/2008 -4- sanctioning of the post etc., without obtaining views of the Trustee Board. Further observation is that the Trustees were unaware about the Chairman attending the Selection Board and participating in the selection process. However, the 5th respondent found that such a contention was not corroborated. Conclusions in Ext.P19 is that, creation of the posts were without the knowledge of the Trustee Board and were not necessary. Further it is found that there was no proper publication of the notification calling for applications. Hence it was observed that the creation of the posts and selections made were irregular. Further appeals filed by the petitioners before the 4th respondent were also dismissed through Ext.P20 order produced in W.P (c) No.13560/2008 (Ext.P17 in the other case). Eventhough the petitioners challenged the order of the 4th respondent in writ petitions filed before this court they were relegated to revisional remedy before the Government. Accordingly the petitioners have approached the Government in Revision Petitions, which were dismissed through a common order W.P.(c) Nos.13560 & 13603/2008 -5- dated 29-03-2008, Ext.P23 produced in W.P (c) No.13560/2008. The Government observed that the creation of posts and appointments made were without consent of the Trustee Board and hence it is irregular. It is further observed that the Executive officer and the Chairman were acting without proper decision of the Trustee Board. It was noticed that two of the Trustees recorded dissent in the appointment. Government observed that the entire process was with an intention to appoint the petitioners and the concealed publicity of the notification inviting applications had rendered the process of appointment irregular. It is aggrieved by the order of the Government that these writ petitions are filed.
4. Main challenge against the impugned order is that the entire steps taken for cancellation of the appointments were on the premise that disciplinary action was initiated against the then Executive officer, Sri. Asokan alleging irregularities in the appointments of the petitioners. But it is pointed out that, disciplinary action W.P.(c) Nos.13560 & 13603/2008 -6- initiated against Sri. Asokan had culminated in total exoneration of the charges levelled. Exhibit P4, proceedings of the 2nd respondent will indicate that the said person was reinstated in service finding that the charges levelled against were unsustainable. Based on findings in the disciplinary proceedings initiated against the Executive officer, contention of the petitioners is that the cancellation of appointments on the allegation of irregularities cannot be sustained. Further, the petitioners have produced Ext.P25, copy of an affidavit filed by the Chairman of the 1st respondent, in earlier writ petitions. It is categorically stated therein that the appointments were made with knowledge of the Board of Trustees and the same was done only with concurrence of the Board. Hence the allegation that the appointments were made without consent of the Board of Trustees is unsustainable, is the contention.
5. In the counter affidavit filed on behalf of the 6th respondent (State Government) it is stated that the posts were created by the then Executive officer in collusion with W.P.(c) Nos.13560 & 13603/2008 -7- the Deputy Commissioner (Administration) and they were placed under suspension based on the charges of irregular creation of posts and appointments made. It is also stated that the Assistant Commissioner after verifying the records have found that the notification inviting the application was published on the Notice Board of the panchayat, village office and in temple premises, but no newspaper publication was made. It is also mentioned that the creation of post was made by the 3rd respondent without consulting or informing the Trustees and the Chairman had acted without decision of the Trustee board. Since the appointments were made in an irregular manner the same are liable to be cancelled, is the contention.
6. Prime question arising for consideration based on the rival contentions is, whether creation of posts were illegal or irregular. Admittedly the posts were created on the basis of a decision taken by the 4th respondent which was approved by the State Government. Action in this regard was initiated on the basis of recommendations of the W.P.(c) Nos.13560 & 13603/2008 -8- 3rd respondent. Counsel appearing on both sides concede that there is no specific provision under the HR & CE Act, 1951 enumerating the procedure for creation of posts. Nobody has a case that there was no necessity for creation of such posts, nor there is a case that the posts need not be filled hereafter. Hence the question as to whether the creation of posts become irregular assumes importance. Even assuming that the Executive officer had recommended for creation of posts without knowledge of the Board of Trustees, affidavit filed by the Chairman indicates that there was knowledge and consent of the Board. Under normal circumstances, presumption is that the Executive officer who is officiating on behalf of Trustees and who is a member of the Trustee Board is acting on behalf of the Trustees. Therefore, as long as the statute does not prescribe for any specific resolution of the Board for creation of any posts, it cannot be said that the creation of the new posts made on the recommendation of the Executive officer is in any manner illegal or improper. The W.P.(c) Nos.13560 & 13603/2008 -9- above opinion has got more emphasis based on the fact that the Executive officer was fully exonerated of the charges levelled on the basis of such allegations.
7. Next question which need consideration is regarding the alleged irregularities in the process of selection. Admittedly the notice inviting the applications was published through affixure at the temple premises, in offices of the panchayat and village. But there was no publication in the Newspapers. Here also, the statute does not prescribe any particular method of publication. There is no scheme formulated with respect to administration of the 1st respondent temple, which insist for any particular procedure to be followed in the matter of appointments. Evidence is available to the effect that, an interview board was constituted with the Chairman of the Trustee Board, Deputy Commissioner and Executive officer as members. Further it is evident that the matter of appointment was placed for consideration of the Board of Trustees. However, two members of the Trustee Board had dissented for the W.P.(c) Nos.13560 & 13603/2008 -10- appointment. Under the above mentioned circumstances no specific violation of any provisions or procedure can be pointed out. However, that by itself will not rectify irregularities if any occurred in the process of selection. But a pertinent aspect which need to be taken note of is that, disciplinary action initiated against the Executive officer on the basis of such alleged irregularities committed in the process of selection, had culminated in a finding that the charges levelled are unsustainable. This is a strong circumstance which need to be considered while deciding the issue. Persons appointed to a post on the basis of notification published inviting applications and under a selection process cannot be terminated by cancellation of the selection, unless it is found that the appointments were totally illegal or secured on the basis of any misrepresentation regarding eligibility or qualification. There is no materials to satisfy any such situation. Hence I am of the opinion that the matter requires re-consideration at the hands of the 6th respondent, after taking note of the W.P.(c) Nos.13560 & 13603/2008 -11- subsequent developments of exoneration of the charges levelled against the Executive officer. A remand of the matter for a fresh disposal will be sufficient to meet the ends of justice.
8. Under the above mentioned circumstances order issued by the Government rejecting the Revision Petition (Ext.P23 in W.P (c) No.13560/2008) is hereby quashed. The 6th respondent is directed to re-consider the Revision Petition after affording a fresh opportunity of hearing to the petitioners as well as the respondents 1 to 5. It is left open to the parties to adduce fresh materials before the 6th respondent on the basis of subsequent developments. A fresh decision on the Revision Petition shall be taken at the earliest possible, at any rate within a period of 3 months from the date of receipt of a copy of this judgment.
Sd/-
C.K. ABDUL REHIM, JUDGE.
AMG True copy P.A to Judge