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2011 DIGILAW 1117 (KER)

P. T. Narayanan Namboodiri v. Commissioner

2011-11-15

K.SURENDRA MOHAN

body2011
Judgment : 1. The first petitioner is the President of the Managing Committee of the T.T.K.Devaswom, Kannur. The administration of the devaswom is being carried on in accordance with the provisions of a scheme framed in OP.No.60/1987 of the Sub Court, Payyannur. It is the case of the petitioner that as per clause 10 of Ext.P1 scheme, the Managing Committee is the competent authority to appoint an Executive Officer who is necessary for managing the day to day affairs of the temple. 2. Earlier, one Sri.E.K.Babu was functioning as the executive officer. He had been removed from service on the ground of misconduct. However, he challenged his removal in an appeal, AP.No.11/2008, which is still pending before the Deputy Commissioner, Malabar Devaswom Board. Thus, a situation was created where the devaswom has no regular Executive Officer. Therefore, one M.P.Kuberan was appointed as the Executive Officer on provisional basis, but he was later removed, since he was over aged. The said person has challenged his removal by filing writ petition WP (C).No.1687/2009. The pendency of the litigations referred to above prevented the first petitioner from making a permanent appointment to the post of Executive Officer. Therefore, the devaswom decided to fill up the post on temporary basis in terms of Rule 4(c) (i) of the rules framed under Section 100(2)(p) and (x)(ii) of the Hindu Religious and Charitable Endowments Act, 1951 (‘HR & CE Act’ for short). According to the petitioners, the appointment was made after inviting applications for appointment to the post and assessing the relative merits of each candidate. Thus, the second petitioner was appointed as the Executive Officer as per Ext.P3. He has thereafter furnished security in terms of Rule 1 of Chapter II of the rules under the HR & CE Act. He was also given training as provided by the rules and he has been discharging his duties, satisfactorily. Subsequently, the Managing Committee has passed a resolution by which the term of the second petitioner was extended. 3. In the meantime, the writ petition filed by Sri.M.P.Kuberan was allowed by this Court and he was reinstated as the Executive Officer. Thereupon, the second petitioner handed over charge to the said person. However, Sri.M.P.Kuberan resigned from the post on 18.10.2010 and left. 4. In the above circumstances, the second petitioner submitted a representation to the Managing Committee seeking permission to continue as the Executive Officer. Thereupon, the second petitioner handed over charge to the said person. However, Sri.M.P.Kuberan resigned from the post on 18.10.2010 and left. 4. In the above circumstances, the second petitioner submitted a representation to the Managing Committee seeking permission to continue as the Executive Officer. The same was considered and the second petitioner was appointed for a period of 89 days. The said appointment was challenged by some of the non hereditary trustees by filing RP.No.10/2011 before the respondent. As per Ext.P7, the appointment of the second petitioner was found to be in order. The respondent has further ordered as follows: “Therefore, applying the provisions of the Act and rules in force in the instant case, I do not find any illegality in the decision of the trustee board meeting held on 8.7.2011 in temporarily appointing a person as Executive Officer. The person appointed temporarily shall be replaced as soon as possible by a member of the service or an approved candidate qualified to hold the post. The 2nd respondent shall not in any case be entitled to any preferential claim to future appointment to the post by reason of holding the temporary appointment.” 5. While so, the term of the second petitioner expired. Therefore, by Ext.P8 order, his appointment was extended from 5.10.2011 for a further period of 89 days. However, as per Ext.P9 the respondent has rejected the application for approval of the said appointment and has directed the first petitioner to make alternative arrangements for the discharge of the duties of the Executive Officer failing which the Assistant Commissioner, Kasargode shall take over the duties of the Executive Officer. The said order is under challenge in this writ petition. 6. A statement has been filed by the Standing Counsel for the first respondent. He points out that as per Section 99 of the HR & CE Act, Ext.P9 order is revisable and therefore, this writ petition is not maintainable. It is further pointed out that the appointment of the second petitioner was not done by following a transparent procedure and that the entrustment of the duties of Executive Officer to a person appointed provisionally is not in the interests of the devaswom, the temple being in possession of many valuable items of properties as well as considerable amounts of cash, all of which are handled by the Executive Officer on his responsibility. It is also pointed out that in Ext.P7 revisional order there is a direction that the person appointed temporarily shall be replaced as soon as possible by a member of the service or an approved candidate qualified to hold the post, which has not been done. Further, it is contended that the first petitioner is not empowered to extend the appointment of the second petitioner by a further period of 89 days, as sought to be done by Ext.P9. For the above reasons the respondent prays for dismissal of this writ petition. 7. I have heard the learned Senior Counsel Sri.A.P.Chandrasekharan, who appears for the petitioner as well as Sri.K.Mohanakannan, who appears for the respondent. 8. The second respondent was appointed initially for a period of 89 days to discharge the duties of Executive Officer. It is no doubt true that a situation is in existence where the first petitioner is not in a position to make a regular appointment to the post of Executive Officer for the reason that various litigations in relation to the termination of the earlier Executive Officer is still pending. However, as rightly pointed out by the counsel for the respondent, even at the time of approval of the earlier order appointing the second petitioner, it has been specifically directed in Ext.P7 that the person appointed temporarily shall be replaced as soon as possible by a member of the service or an approved candidate qualified to hold the post. A reading of Rule 4(c) (i) of the Rules under Section 100(2)(p) and (x)(ii) also shows that the situation contemplated by the said provision is a temporary one. Clauses (b) and (c) of the Rules reads as follows: “(b) 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) above. (c) (i) Where it is necessary in the public interest and in the interests of the religious institution concerned owing to an emergency which has arisen to fill immediately a vacancy and there would be undue delay in making such appointment in accordance with these rules the appointing authority may appoint a person, otherwise than in accordance with these rules, temporarily for a period not exceeding three months until a person is appointed in accordance with the rules. (ii) Where it is necessary to fill a short vacancy and the appointment of the person who is entitled to such appointment under these rules would involve excessive expenditure on travelling allowance or exceptional administrative inconvenience the appointing authority may appoint temporarily for a period not exceeding three months any other person who possesses the qualifications prescribed for the post. (iii) A person appointed under clauses (i) shall be replaced as soon as possible by a member of the service or an approved candidate qualified to hold the post under these rules.” 9. Clauses (i) and (ii) of sub rule (e) of rule 4 contemplates two different situations. Clause (i) deals with a situation where it is necessary – A. in the public interest and in the interests of the religious institution concerned; B. owing to an emergency which has arisen; C. to fill immediately a vacancy; D. and there would be undue delay in making such appointment in accordance with these rules; the appointing authority is empowered to appoint a person otherwise than in accordance with these rules, temporarily for a period not exceeding three months untila person is appointed in accordance with these rules. Clause (ii) deals with the filling up of a vacancy for a short duration. Both the above clauses confer an extraordinary power on the appointing authority, a power to made an appointment by-passing the Rules! Since the power is an exceptional one, the same has to be confined to the limits within which the same has been hedged in by the provision conferring the power. 10. Both the above clauses are meant to take care of emergency situations. The power conferred being an extraordinary power is controlled by the various safeguards enacted. The power is to be exercised on considerations of public interest and the interests of the religious institution in a situation where in an emergency, a vacancy has to be filled up immediately and the delay in following the procedure stipulated by the Rules has to be avoided. In such cases, the appointing authority is conferred a power to make an appointment otherwise than in accordance with the Rules. The appointment so made can only be a temporary one, to continue until a regular appointment is made in accordance with the Rules. It is a further condition that such appointment shall not be for a period exceeding three months. The appointment so made can only be a temporary one, to continue until a regular appointment is made in accordance with the Rules. It is a further condition that such appointment shall not be for a period exceeding three months. The intention is clear that, an appointment in accordance with the Rules would have to be made within an outer limit of three months. 11. As noticed above, the above provision clearly shows that what is contemplated is an appointment in an emergent situation where it is not possible to make regular appointments to the post of Executive Officer. In such a situation, in order to ensure that the interest of the devaswom do not suffer, the first petitioner is empowered to make such an appointment, which according to the provision, shall be “for a period not exceeding three months until a person is appointed in accordance with rules.” The above being the position, the present appointment of the second petitioner as per Ext.P8, extending his appointment from 5.10.2011 for a further period of 89 days is not permissible. It is in view of the above that, Ext.P9 order has been issued by the respondent refusing to grant approval to the said appointment. I do not find any infirmity with the impugned proceedings Ext.P9. 12. Apart from the above, what is directed in Ext.P9 is only to make urgent alternative arrangements for discharging the duties of Executive Officer immediately. It is only on failure to do so that the Assistant Commissioner has been directed to take over the duties of the Executive Officer. Therefore, there is no justification in the allegation that the rights of the first petitioner to manage the devaswom has been prejudicially affected in any manner. For the above reasons, I do not find any ground to interfere with the impugned proceedings or, to grant any of the reliefs sought for in this writ petition. The writ petition fails and is accordingly dismissed.