2021 Supreme(Ker) 441

IN THE HIGH COURT OF KERALA AT ERNAKULAM
ALEXANDER THOMAS, K. BABU, JJ.
B.Mohammed Jamal - Appellant
Versus
State Of Kerala - Respondent
WA.No.285 of 2021
Decided on : 26-03-2021

Point of Law: Retirement from service – Pensionery Benefit of – Court inclined to order that until fresh regular appointment is made to fill up post of Chief Executive Officer/Secretary of Wakf Board writ petitioner may be temporarily or provisionally allowed to continue in said post.

Headnote:

General Clauses Act – Sections 23, 24 – Kerala High Court Act – Section 5 – Kerala Wakf Board Employees Regulations 2016 – Section 112 – Writ of certiorari – Retirement from service and pensionary benefits – Unsuccessful petitioner in the writ petition, WP(C) has instituted this intra court appeal under Section 5(i) of the Kerala High Court Act, so as to impugn the judgment rendered by Single Judge of this Court in the said WP(C) – Appellant herein had filed the instant writ proceedings in the amended WP(C) with the prayers issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Exts-21 to P23 and quash the same. – Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 to 3 to give sanction for reputation, enabling the petitioner to apply and accept the post of Secretary in Central Wakf Council pursuant to Ext-P29 and Ext-P30 without any financial commitment to respondents 1 and 2; - Declare that the entire action in Exts-P13 to P17 is arbitrary, illegal and vitiated by malafides – Direct the 1st respondent to refrain from proceeding with the actions evidenced by Exts-P14 to P17 based on Ext -P13 – Declare that by virtue of Exts-P8 to P11 and the provisions contained in Kerala Wakf Board Employees Regulations 2016, the petitioner is entitled to continue in service till the age of 58 years – Direct the 1st respondent to take up for consideration Exts-P4, P6, P7 and P12 in the light of Exts-P8 to P11 as well the provisions contained in Kerala Wakf Board Employees Regulations 2016 and take appropriate decision in the matter of retirement from service and pensionary benefits of the CEO cum Secretary. – Issue such other and further reliefs as this Honourable Court may deem fit and proper in the facts and circumstances of the case; and award costs to the petitioner

Finding of the court: Court is inclined to order that until fresh regular appointment is made to fill up post of Chief Executive Officer/Secretary of the Wakf Board, the writ petitioner may be temporarily or provisionally allowed to continue in the said post. – However, this will not confer any rights on the writ petitioner and as and when the regular incumbent is selected and appointed by Government, in manner known to law, the writ petitioner will have to be relieved and shall be substituted by such regular appointee. – It is also made clear that the writ petitioner shall not take any policy decision in matter and shall engage only in routine administrative affairs, etc. – Since we are now passing this direction as an interim arrangement, court would also order that the writ petitioner in that capacity would also be under the full administrative control and supervision of the Chairman of the Wakf Board and the competent authority of the State Government in the revenue department will also be at liberty to issue any directives as it deems fit and proper, if the occasions thereof arises in respect of the discharge of duties and functions by the writ petitioner in the above interim arrangement – It is ordered that the impugned judgment, will also stand confirmed and the same does not require any appellate interdiction. – Writ petitioner may continue in a temporary capacity, as aforesaid till regular appointee takes charge in the said post. – It is also made clear that since it is only an interim arrangement, the writ petitioner can have no role in the decision making process for selecting the regular appointee to the post of Secretary/Chief Executive Officer of the Wakf Board – It is also made clear that the writ petitioner will not be entitled for regular pay and allowance in the post of Secretary/Chief Executive Officer, on and with effect from the period from 16.12.2020 onwards and the competent authority of the State Government may consider granting him pay in the minimum of the pay scale of the post of Secretary/Chief Executive Officer on and with effect from 16.12.2020 onwards upto the date of his relief by the regular appointee and his continuance shall be purely temporary or provisional, as aforesaid and subject to the abovesaid restrictions, as above. – Orders and directions of the learned Single Judge in the impugned judgment, will stand modified, to the limited extent as above

Result: Writ Appeal Dismissed