Point of Law : Commissioner does not have the power to approve or sanction a newly created post, etc., does not reflect the correct legal position and hence would stand overruled.

JUDGMENT :

Alexander Thomas, J.

The Malabar Devaswom Board and the officials concerned of the said Board, who were arrayed as respondents 1 to 4 in W.P.(C) No.3175/2017, filed by the 1st respondent herein have instituted the aforecaptioned Intra Court Appeal under Section 5(i) of the Kerala High Court Act, to impugn the judgment dated 21.10.2020, rendered by the learned Single Judge in the said writ petition (civil).

2. Heard Sri. R. Lakshmi Narayan, the learned Standing Counsel for the Malabar Devaswom Board appearing for the appellants/respondents 1 to 4 in the writ petition (civil), Sri. K. Mohanakannan, the learned counsel appearing for the 1st respondent herein (writ petitioner) and Sri. M. Krishnakumar, the learned counsel appearing for the 2nd respondent herein/5th respondent in the writ petition (civil) (Executive Officer of the temple).

3. The writ petitioner was initially temporarily appointed on daily wages basis as 'clerk' in the 2nd respondent temple/Devaswom from 01.06.2011 onwards. Further the Area Committee had taken decision as per proceedings dated 29.12.2014 (referred to as item No.3 in Ext.P-1 ), ordering that the post of 'vazhipadu clerk' in the said temple is sanctioned. Further, it is also decided by the Area Committee thereby, on the premise that approval of an incumbent like the writ petitioner would require approval of the Commissioner of the Malabar Devaswom Board, the proposal for approval of the appointment of the writ petitioner was so forwarded by the Assistant Commissioner of the Malabar Devaswom Board to the Commissioner of Malabar Devaswom Board, Kozhikode. As per Exhibit P-1 letter dated 13.01.2015 the matter has been forwarded to the Commissioner for sanction/creation of the post as well as for the approval of the appointment of the writ petitioner. Later, the respondent temple/Devaswom has issued Exhibit P-2 proceedings dated 25.05.2015, stating that the decision to appoint the writ petitioner was lawfully taken by the Trustee Board of the temple as per proceedings dated 20.07.2012 and that the report of the inspector was also obtained on 29.11.2014 and the matter had also secured the approval of the Area Committee as per proceedings dated 29.12.2014 and that the subject matter is also referred to in Exhibit P-1 dated 13.01.2015 and that taking into consideration these aspects, the writ petitioner will stand appointed as 'clerk' with effect from 01.06.2015 in the scale of pay of Rs.2200-3650 etc. In the meanwhile, the writ petitioner had discharged his duties and functions and when he had applied for leave surrender benefits, the same was denied by the respondent temple/Devaswom as per Exhibit P-3 dated 30.12.2016, citing the ground that formal sanction/approval of the Commissioner of Malabar Devaswom Board has not been obtained and that the name of the writ petitioner is not included in the schedule of the establishment as envisaged in Rule 10 of the Rules framed under Section 100(2)(y) of the Madras Hindu Religious And Charitable Endowments Act, 1951 (for short 'the Act'). It appears that even before the issuance of Exhibit P-3 dated 30.12.2016, the Commissioner of Malabar Devaswom Board has issued the impugned Exhibit P-4 proceedings dated 23.11.2016, ordering that taking into account the various proceedings referred to in Exhibit P-1, the approval/sanction is accorded by him for the creation of fresh post of 'Clerk/Vazhipadu Clerk' in the abovesaid temple. However, it is ordered in Exhibit P-4 by the Commissioner that the post so sanctioned should be notified for fresh selection from amongst the eligible candidates and thereby clearly implying that the request for the approval of the appointment of the writ petitioner to the said post of 'Clerk/Vazhipadu Clerk' stands declined. It is this proceedings at Exhibit P-4 that has been challenged by the writ petitioner in the aforesaid writ proceedings.

4. The learned Single Judge has taken the view as per the impugned judgment rendered on 21.10.20