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2022 Supreme(Ker) 162
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ALEXANDER THOMAS, VIJU ABRAHAM, JJ.
Gireesh V.M. S/o Narayanan Namboodiri – Petitioner
Versus
The Malabar Devaswom Board – Respondent
W.P. (C) No. 22550 of 2020
Decided On : 25-02-2022
Advocate Appeared:
For the Petitioners: Mahesh V. Ramakrishnan, Mary Liya Sabu.
For the Respondents: R. Lakshmi Narayan, K. Pramod.
Point of Law : Claim of the petitioner cannot be rejected on the ground that he is not entitled for the scheme as he is an executive officer.
Headnote:
Hindu Religious and Charitable Endowments Act, 1951 - Section 7, 58, 66(1), 66(2), 100(2)(y), 100(2)(x)(ii) - Rule 10 - Writ Petition - Commissioner approving appointment of petitioner as Executive Officer of temple - Temple in question is the one which is covered by scheme framed by Deputy Commissioner of erstwhile Hindu Religious and Charitable Endowments (Administration) Department which is presently nomenclatured as Malabar Devaswom Board as envisaged in Section 7 of Hindu Religious and Charitable Endowments Act, 1951 and that petitioner has been duly appointed as per order as Executive Officer of abovesaid Temple Devaswom in question, as envisaged in Clause 8 of Ext.P-1 scheme - Further that, Ext.P-3 is order issued by Commissioner approving appointment of petitioner as Executive Officer of temple - Further that, name of petitioner has been duly included in Ext.P-4 which is statutory schedule of establishment of temple in question, as envisaged in Section 25 of Act read with Rule 10 of Rules framed under Section 100(2)(y) of Act - Whether petitioner who is Executive Officer appointed by Temple Devaswom is to be treated as an employee of temple for securing financial benefits in terms of Anx.R-1(1) G.O. (MS) as subsequently laid down in further Government Orders - Whether 100% of said burden is to be borne by one of temples and whether it should be apportioned, etc.
Finding of the Court:
3rd and 4th respondents will furnish their reports on those aspects to 2nd respondent within one month - While doing so, 3rd and 4th respondents will also ensure that copies of their reports shall also be forwarded to petitioner - Thereafter, 2nd respondent will afford reasonable opportunity of being heard to petitioner either in person or through authorized representative/counsel if any, and then 2nd respondent, after adverting to various aspects and also after examining reports of 3rd and 4th respondents may take a considered decision on claim of petitioner for getting financial benefits in terms of Anx.R-1(1) scheme read with Ext.P-5 G.O. etc without much delay, at any rate within an outer time limit of 2 months from date of production of a copy of this judgment - It is made clear that claim of petitioner cannot be rejected on ground that he is not entitled for scheme as he is an executive officer.
Result: Writ Petition disposed of.
JUDGMENT :
ALEXANDER THOMAS, J.
1. The prayers in the afore captioned Writ Petition (Civil) are as follows:
“(i) To declare that the petitioner is entitled to get the salary from the Management Fund, like any other employee of Kurumathur Illam Group Devaswam.
(ii) To issue a writ of Mandamus or any other appropriate writ, order or direction, to direct the Respondents 1 to 3 to pay the salary due to the petitioner along with arrears from the Management Fund of the Malabar Devaswom Board considering Ext.P-6 representation.
(iii) For all the costs of the Writ petition.
(iv) For such other and further reliefs, that are deem fit under the circumstances of the case.”
2. Heard Sri. Mahesh V. Ramakrishnan, learned counsel appearing for the petitioner, Sri. R. Lakshmi Narayan, learned Standing Counsel for the Malabar Devaswom Board, appearing for respondents 1 to 3 and Sri. K. Pramod, learned counsel appearing for R-4 (Temple Trustee).
3. This case has come before us on the basis of an order of reference rendered on 5.2.2021 by the learned Single Judge in this W.P. (C). The relevant part of that reference order, more particularly those contained in Paras 7 to 9 thereof, reads as follows:
“7. The learned counsel for the petitioner immediately seeks to draw a distinction between the executive officers appointed by a trustee and executive officers appointed by the Commissioner. It is submitted that the distinction has not been considered in Ext.R1 (2) judgment. It is stated that in the case of executive officers appointed by the Commissioner, they are liable to be transferred to other Devaswoms as well and they are also given additional charge of several temples and they have been permitted to draw their salary from the temples which have financial capacity to make such payments. It is contended that since the petitioner is a temple employee appointed by the trustee, there is no such option available to the petitioner and the petitioner cannot be appointed in any other temple. It is contended that if the petitioner is put in charge as executive officer of any other temple under the Malabar Devaswom Board, the petitioner is willing to work and to draw salary from such temple where the financial situation permits.
8. Having considered the contentions advanced on either side, I find that the petitioner is undoubtedly an executive officer appointed by the trustee. The petitioner's name has also been included in the schedule of establishment of the religious institution concerned. Going by the specific provisions of Ext.R1(1), temple employees would be eligible for financial assistance from the Fund. I am, therefore, prima facie of the view that the petitioner would be entitled to assistance from the Temple Management Fund.
9. However, in a similar factual situation, another learned Single Judge of this Court in Ext.R1 (2) judgment had held that executive officers, who are appointed in terms of the rules framed under Sections 100(2) (p) and (x)(ii) of the Act are not temple employees for the purpose of the Fund and cannot draw amounts from the Fund even when the temple in which they are appointed cannot pay their salary. In view of the fact that this Court has considered the similar situation and has held that the salary of executive officers cannot be paid from the temple fund in view of the fact that they are not temple employees, I am of the opinion that the question whether the petitioner, who has been appointed by the trustee of the temple under Section 48 of the Act in terms of a scheme of administration framed under Section 58, is a temple employee and is, therefore, entitled to payment of salary from the Temple Management Fund, which has been constituted as per Ext.R1(1) requires consideration by a Bench of this Court.
In the above view of the matter, the writ petition is referred for consideration by a Division Bench. The Registry shall take steps to place the matter for consideration by a Bench.”
4. The case set up in the above W.P. (C) is to the
