BY AD vs A.C.VENUGOPAL

Judgment

1. This order shall dispose of two writ appeals preferred against the judgment of the Single Bench whereby the claim of the party respondents/writ petitioners challenging the order dated 12.04.2023 has been allowed and they have been permitted to discharge the duties of Executive Officers and one Administrator till the age of 65 years, on behalf of a trustee-employer-Zamorian.

2. Madras Hindu Religious and Charitable Endowments Act, 1951, was enacted to provide better administration and governance of the Hindu Religious and Charitable Institutions and Endowments in the Malabar District of Kerala on account of not only geographical classification but historical reasons and such institutions as per the Act are defined as not public authorities. On enactment of aforementioned Act, the previous Act of Madras Hindu Religious and Charitable Endowments Act, 1926 was WA Nos.1717/2023 & 1720/2023 6 repealed. Section 6 of the 1951 Act defines Area committee, Assistant Commissioner, Board, Charitable Endowments, Commissioner, Court, Deputy Commissioner, Government, Hereditary trustee, Math, person having interest, prescribed, religious charity, religious endowment or endowment, religious institution, specific endowments, temple, and trustee, but do not define the nomenclature of employees like manager or administrator.

3. Section 7 deals with the constitution of Malabar Devaswom Board consisting of nine (9) Hindu members. Section 8C of the Act deals with the officers and employees of the Board whereby the Government has power to appoint an officer not below the rank of Joint Secretary to Government who is professing Hindu religion and believer of God and temple worship as Commissioner of the Board on such terms and conditions. He shall be also the Chief Executive Officer of the Board who shall implement all the decisions of the Board. Section 8D envisages the appointment to be made through the Kerala Public Service WA Nos.1717/2023 & 1720/2023 7 Commission of officers and employees of the Board except the Commissioner. Section 20 in Chapter III of the Act envisages powers and duties of the Commissioner who have a general superintendence and control including the power to pass orders to ensure that the endowments are properly administered and their income is duly appropriated. The trustee as defined under Section 6(19) would mean any person or a body by whatever designation known in whom or in which the administration of religious institution is vested and includes any person or body which is liable as if such person or body were a trustee. Trustee would not be an employee of the Board. Normally it is vested in the heirs of the founder unless the founder has laid down a special scheme of succession or otherwise. Hereditary trustee would mean a trustee of religious institutions succession to whose office devolves by hereditary right or is regulated by usage or specifically provided for by the founder, so long so such scheme of succession is in force. So certain trustees who had a control of various temples have the power to appoint WA Nos.1717/2023 & 1720/2023 8 employees of the temple over and above the powers of the Commissioner to appoint Executive Officers. In the instant case, while exercising the powers vested in him the hereditary trustee, the present Zamorian, vide various appointment orders appointed the writ petitioners as Managers.

4. In the absence of any definition of office holders or servants appointed by the trustee while exercising the powers under Section 48 of the 1951 Act, the power to take action against such employees vest with the hereditary trustee. Under Section 58, the Deputy Commissioner is empowered to frame a scheme keeping in view the interest of the proper administration of religious institution. On receipt of an application submitted by group of five (5) persons, a scheme settled under the said provision can be settled for temple or for a specific endowment including the appointment or directing the appointment of paid Executive Officers. Section 66 empower the Commissioner to appoint salaried Executive Officers professing Hindu religion by fixing WA Nos.1717/2023 & 1720/2023 9 the term and office of the Executive Officer. Section 100(2) (x) (ii) empowers the State Government to make Rules with regard to the Executive Officers appointed for religious institutions under any of the provisions of the Act or in pursuance of the scheme settled or deemed to be settled whereas 100(2)(y) prescribes the qualification to be possessed by the officers and servants for appointment to non-hereditary offices in religious institutions. The Rules framed under the aforementioned Act are called Madras Hindu Religious and Charitable and Endowments Rules and rules framed under Section 100(2)(x)(ii) Part-I (Rule 21) prescribes that retirement age of the Executive Officer shall be the date on which he attains the age of sixty years.

5. Rules framed under Section 100(2)(y) applies to all officers and servants of religious institutions except 'the officer and servants constituting the establishment of the Thirumalai – Thirupathi Devaswom Board' (not applicable) and Executive Officers (emphasis supplied) appointed for religious institutions. Under the aforementioned Rule, sub- WA Nos.1717/2023 & 1720/2023 10 rule 2 of Rule 4 provides that except in the case of the hereditary officer or servant, no person can be appointed or hold any office unless he is not less than eighteen and not more than sixty five years of age.

6. The managers appointed by trustee approached this Court for changing the nomenclature of theirs to Executive Officers on the premise that there is no nomenclature of manager provided under the Act. The Learned Single Bench accepted the plea of such persons and directed that they should be considered as Executive Officers under Section 100(2)(x)(ii) of the Rules framed under 1951 Act and shall be designated as Executive Officers. The aforementioned matter was taken in Writ Appeal and finding of the Single Bench was upheld, matter is reported as 2001 (2) KLT 252 in Narayanan Nair v. State of Kerala. Owing to the aforementioned judgment two sets of Executive Officers came into existence; the one appointed directly by the Commissioner and the other appointed by the hereditary trustees as managers. WA Nos.1717/2023 & 1720/2023 11

7. So long so, there was no dispute as the matter continued, for, as a convention the employees and certain Chief Executive Officers used to superannuate at the age of five years. Realizing the error discrepancy/anomaly hereditary trustee passed an order dated 12.04.2023 by noticing that the Executive Officer, as per the judgment referred above, would be covered under Rule 100(2)(x)(ii) the retirement as per Rule 21 is sixty years, passed an order fixing the age as sixty years. The writ petitioners/respondents aggrieved of such order, assailed same on the premise that their appointment as Executive Officer would not be at par with the Executive Officers appointed by the Commissioner and would be a separate cadre falling under the definition of the servant and employees of the Board and therefore would be falling under category 100(2)(y) which envisage that the person can hold an officer beyond the age of eighteen(18) years and less than sixty five(65) years. Similarly a Senior Manager for managing the affairs of the Zamorian was also appointed as WA Nos.1717/2023 & 1720/2023 12 an Administrative Officer in the Central Devaswom Board. The role of the Deputy Officer and the Administrative Officer is not similar but different. Devaswom Board admitted that the Administrator appointed from the post of Manager would be falling within the rigors of Section 100(2)(x)(ii), after the ruling of this Court reported in 2001 (2) KLT 252 (supra).

8. The stand of the hereditary trustee was that all the writ petitioners submitted a request dated 19.09.2007 to treat managers of Temple under trustee of Zamorian Raja as Executive Officers with attendant benefits attached to this change of designation. The order of the Zamorian Raja was sent for approval to the Malabar Devaswom Board, the Commissioner informed their inability to consider the order of the Zmorian Raja for approval and rejected the same and

it is in that background Zamorian Raja had earlier rejected. But owing to the decision rendered by this Court another order was passed Ext.R3(j) dated 15.09.2009 where all the managers working in the group of temples under the trusteeship of Zamorian Raja were approved as Executive WA Nos.1717/2023 & 1720/2023 13 Officers and therefore would be governed by Section 100(2) (x)(ii) and not Section 100(2)(y).

9. Learned Single Bench, on analysis of the rival contentions, vide judgment under challenge allowed the writ petitions.

10. Mr.S.Sreekumar, learned Senior Counsel assisted by Mr.A.C.Venugopal submitted that learned Single Bench failed to notice a vital fact that there is no retirement age of 65 years of any officer in service except the convention. The Executive Officer have been brought under the frame work of Section 100(2)(y) which is totally inconsistent with the service conditions of the Executive Officers appointed by the Commissioner under Sections 66 and 67 as, concededly they would be employees falling under Section 100(2)(x)(ii) and as per Rule 21 would be retiring at age of sixty years. In other words, an anomalous situation has occurred which cannot be allowed to be perpetrated.

11. The writ petitions were not maintainable as the order of the Zamorian as per Section 18 was appealable WA Nos.1717/2023 & 1720/2023 14 before the Commissioner. The said remedy was assailed. But without seeking the liberty to withdraw and writ petition has been filed. There is no discussion of such objection. Learned Single judge also failed to follow the Division Bench judgment dated 25.02.2022 rendered in Gireesh V.M. v. Malabar Devaswom Board and Others. In support of the contention reliance has also been laid to another Division Bench judgment rendered in W.A.2087/2023 decided on

08.01.2024 titled as K.Venugopalan v. State of Kerala and Others.

12. On the other hand, Mr.Mohan.C.Menon, learned counsel appearing on behalf of the writ petitioners and Sri.Praveen.K.S. on behalf of the writ petitioner appointed as Administrator from the post of Manager, supported the finding of the Single Bench and submitted that they are on a different cadre and cannot be equated to the Executive Officer even if there is no definition of Administrator or appointment of Managers in the 1951 Act. The pay scale of the Administrator is different than that of the Executive WA Nos.1717/2023 & 1720/2023 15 Officer. Therefore, there cannot be any equation. The impugned order dated 12.04.2023 also pertains to retirement age of Administrators and thus gave a cause of action to challenge the same. The appointment of the Petitioner as Administrative Officer had already been approved by the Commissioner under Rule 10 of the Rules under Section 100(2)(y) of 1951 of the Rules and his name has been entered in the schedule of the establishment. The age of retirement of the Administrative Officer would be governed by Section 100(2)(y) which would be sixty years and says he has attained the age of sixty years and has been ordered to continue by interim order of Single Bench to discharge the duties of Administrative Officer but without emoluments. It is in that background the remedy of writ was availed instead of preferring an appeal provided under Section 18.

13. Zamorian Raja had no legal authority to change the statutory rules applicable to the post of Administrative Officer. The impugned order essentially related to the WA Nos.1717/2023 & 1720/2023 16 nomenclature or re-designation of the Manager to the post of Executive Officer and Administrative Officer would not have been covered under the said order. Mr.Mohan.C.Menon contended that the ratio decidendi culled out in the judgment cited are based upon different set of facts and therefore judgments are in per incuriam and cannot be applicable to the facts of the case as all the writ petitioners form different class and category/cadre. Their nature of duty vis-à-vis the Executive Officer appointed by the Commissioner are totally different much less the pay scale. Therefore, cannot be equated by applying Rule 21 of Rules ibid.

14. We have heard the learned counsel for the parties and appraised the paper books.

15. Before adverting to the rival submissions, it would be necessary to extract few of the provisions referred to above: 6(9). ”hereditary trustee” means the trustee of a religious institution succession to whose office devolves by hereditary right or is regulated by usage or is specifically WA Nos.1717/2023 & 1720/2023 17 provided for by the founder, so long as such scheme of succession is in force;

48. Appointment of office-holders and servants in Religious Institutions.- (1) Vacancies, whether permanent or temporary, amongst the office-holders or servants of a religious institution shall be filled up by the trustee in cases where the office or service is not hereditary. (2) In cases where the office or service is hereditary, the next in the line of succession shall be entitled to succeed. (3) Where however there is a dispute respecting the right of succession, or Where such vacancy cannot be filled up immediately, where the person entitled to succeed is a minor without a guardian fit and willing to act as such or there is a dispute respecting the person who is entitled to act as guardian, or Where the hereditary office holder or servant is suspended from his office under section 49 sub section (1) the trustee may appoint a fit person to discharge the functions of the office or perform the service until the disability of the office holder or servant ceases or another person succeeds to the office or service as the case may be, WA Nos.1717/2023 & 1720/2023 18 Explanation.- In making any appointment under this sub section the trustee shall have due regard to the claims of members of the family, if any, entitled to the succession. (4) Any person affected by an order of the trustee under subsection (3) may, within one month from the date of the receipt of the order by him, appeal against the order to the Deputy Commissioner.

58. Power of Deputy Commissioner to frame scheme.- (1) When the Deputy Commissioner has reason to believe that in the interests of the proper administration of a religious institution, a scheme should be settled for the institution, or when not less than five persons having interest make an application writing, stating that in the interests of the proper administration of religious institution a scheme should be settled for it, the Deputy Commissioner shall consult in the prescribed manner the trustee and the persons having interest and the Area Committee, if any, having jurisdiction over the institution; and if, after such consultation, he is satisfied that it is necessary or desirable to do so, he shall, by order, frame a scheme of administration for the institution. (2) A scheme settled under sub-section (1) for a temple or for a specific endowment other than one attached to a math may contain provision for- (a) removing any existing trustee, whether hereditary or non-hereditary: WA Nos.1717/2023 & 1720/2023 19 Provided that where provision is made in the scheme for the removal of a hereditary trustee, provision shall also be made therein for the appointment as trustee of the person next in succession who is qualified; (b) appointing or directing the appointment of, a paid executive officer, who shall be a person professing the Hindu religion on such salary and allowance as may be fixed, to be paid out of the funds of the institution; and defining the powers and duties of such officer: Provided that in making any provision of the nature specified in clause (b) due regard shall be had to the claims of persons belonging to the religious denomination for whose benefit the institution is chiefly maintained. (3) A scheme settled under sub-section (1) for a math or for a specific endowment attached to a math may contain provision for- (a) associating one or more persons with the trustee or constituting a separate body for the purpose of participating or assisting in the whole or any part of the administration of the endowments of such math or of the specific endowment; provided that such person or persons or the members of such body shall be chosen from persons having interest in such math or endowment; (b) appointing or directing the appointment of a paid executive officer, who shall be a person WA Nos.1717/2023 & 1720/2023 20 professing the Hindu religion, on such salary and allowances as may be fixed by the Deputy commissioner, to be paid out of the trust funds, and defining the powers and duties of such officer; (c) defining the powers and duties of the trustee; (4) The Deputy Commissioner may determine what the properties of the religious institution are and append to the scheme a schedule containing a list of such properties: Provided that such determination shall not affect the rights of persons who are the hostile possession of any of the said properties. (5) Pending the framing of a scheme for a temple or for a specific endowment other than one attached to a math, the Deputy Commissioner may appoint a fit person to discharge all or any of the functions of the trustee thereof and define his powers and duties. (6) The Deputy Commissioner may, at any time, after consulting the trustee and the persons having interest and the Area Committee, if any, having jurisdiction over the institution, by order, modify or cancel any scheme settled under sub-section (1) or a scheme settled by the Board under the Madras Hindu Religious Endowments Act, 1926. (7) Every order of the Deputy Commissioner setting, modifying or cancelling a scheme under this section shall be published in the prescribed manner and on such publication shall, subject to the provisions of section 61 and 62, be WA Nos.1717/2023 & 1720/2023 21 binding on the trustee, the executive officer and all persons having interest. (8) The powers conferred by this section shall, in respect or maths, be exercised by the Commissioner or by a Deputy Commissioner to whom powers in this behalf have been delegated by the Commissioner under section 10, sub- section (2).

66. Appointment of salaried Executive Officer.- (1) For every institution notified under this Chapter, the Commissioner shall as soon as may be appoint a salaried executive officer, who shall be a person professing the Hindu religion. (2) The salary and allowance of the executive officer, as determined by the Commissioner, shall be paid from the funds of the religious institution.”

100. Power to make rules.- (1) The State Government may make rules to carry out all or any of the purposes of this Act and not inconsistent therewith. (2) In particular, and without prejudice to the generality of the foregoing power, they shall have power to make rules with reference to the following matters:- (a) xxxxx (b) xxxxx xxxx xxxxx xxxxx (x) the qualifications, method of recruitment, pay, grant of leave, leave allowance and travelling allowance, personal conduct and punishment, of WA Nos.1717/2023 & 1720/2023 22 (i) xxxxxx (ii) executive officers appointed for religious institutions under any provision of this Act or in pursuance of any scheme settled or deemed to be settled thereunder; Rules under Section 100(2)(p) and (x)(ii) Part I Rules regulating the conditions of service, pay, etc., of paid executive officers, appointed for religious institutions under the Act (excluding the Executive officer, Tirumalai-Thirupathi Devasthanams) or in pursuance of any scheme settled or deemed to be settled thereunder.

1. In this part of rules, the expression “Executive Officer” includes any paid officer appoint under a scheme settled or deemed to be settled under the Madras Hindu Religious and Charitable Endowments Act, 1951 (Madras Act XIX of 1951), by whatever designation called, provided that he is the highest executive authority in charge the administration of the religious institutions: Provided further that this shall not include the Executive Officer, Tirumalai-Tirupati Devastanams. Rule 21. The date of compulsory retirement of an Executive Officer shall the date on which he attains the age of sixty years. Explanation.-For the purpose of this rule, Executive Officer includes an Executive Officer continuing in service by virtue of extension granted by Government. WA Nos.1717/2023 & 1720/2023 23 Rules under Section 100(2)(y) Part I

1. The rules in this Part shall apply to all officers and servant of religious institutions except officers and servants constituting the establishment of the Tirumalai- Tirupathi Devastanams to whom the rules framed under Section 100(2)(x)(i) apply and executive officers appointed for religious institutions under any provisions of the Act or in pursuance of the scheme settled or deemed to be settled thereunder, to whom the rules framed under Section 100(2)(x)(ii) apply.

2. xxxxx

3. xxxxx

4.(1). xxxxx (2). Except in the case of a hereditary officer or servant, no person may be appointed to or hold any officer unless he is not less than eighteen and not more than sixty-five years of age.”

16. On perusal of the provisions extracted above, it is deduced that power to appoint Executive Officer vests with the Commissioner. Concededly, all the writ petitioners were appointed as Managers by various appointment orders through a hereditary trustee. The power of superintendence, control and punishment vested with the hereditary trustee. So long so there was no dispute were discharging the duties WA Nos.1717/2023 & 1720/2023 24 of manager, but aggrieved of their nature of duties, Managers working under the hereditary trustee approached this Court for changing the designation as Executive Officer. As noticed above, the said contention was accepted and approved by the Division in the judgment in Narayanan Nair supra. Paragraphs 4 and 5 of the judgment reads as under:

4. We are of the view that even though Manager was appointed under the Scheme framed under Ext. P1 as amended by Exts. P2 and P3 orders it is amendable to disciplinary powers conferred on the Commissioner under the H.R. & C.E. Act and the Rules framed thereunder. Even if Manager was appointed by the then Board of Trustee the present Board of Trustees has got the power under S. 49 of the H.R. & C.E. Act to take appropriate disciplinary proceedings. Commissioner is also not divested with these powers to take appropriate proceedings under the Rules framed under S. 100(2)(x) (ii) of the Act, 1951. R. 1 states that the expression "Executive Officer" includes any person appointed under a scheme settled or deemed to be settled under the Madras Hindu Religious and Charitable Endowment Act, 1951 (Madras Act XIX of 1951) by whatever designation called, provided that he is the highest executive authority in charge of the administration of the religious institutions. It WA Nos.1717/2023 & 1720/2023 25 is evident from the aforementioned rule that the expression "Executive Officer" includes and takes in any paid officer appointed under the Scheme. Therefore, even if the Scheme is settled before the coming into force of the Act, 1951 and a person is appointed under the scheme he is the executive authority in charge of the administration of the religious institutions and would satisfy the definition of Executive Officer.

5. We are therefore of the view that the Manager appointed under the Scheme would come within the expression "Executive Officer". In this connection reference is also made to R.11 which deals with sanction of leave to the Executive Officer. In that Rule the expression "appointing authority" takes in Area Committee, Assistant Commissioner or the Deputy Commissioner, as the case may be. R. 15 confers powers on the appointing authority to impose punishment on the Executive Officer after following the procedures laid down in R. 16. R. 16 also says that Executive Officer may be placed under suspension pending enquiry into grave charges, where such suspension is necessary in the public interest and in the interest of religious institution concerned. Since the Manager satisfies the definition of Executive Officer, we are of the view that the appointing authority under the Act has got the jurisdiction to take disciplinary proceedings including suspension against the appellant. This view is in accordance with the principle laid down in Madhavan Nai v. Commissioner for H.R. & C.E and Ors. 1963 KLT 480 as well as the Bench decision of this WA Nos.1717/2023 & 1720/2023 26 Court in M.Vittal Bhat v. Srimad Anantheswar Temple 1978 (1) SLR 772.”

17. On perusal of the above, it is found that the Executive Officers would be governed by the Rules under Section 100(2)(x)(ii) of Rules framed in 1950 Act. The order aforementioned was not implemented and convention of retiring the employees and servants discharging different set of duties continue to operate till the age of sixty five years. The aforementioned facts were emphatically relied and pleaded in the writ petition much less granting of the higher benefits. It was explained in the counter affidavit that it pertained to the employment of the managers who are/ were promoted as Executive Officers after the judgment but before passing an effective order to overcome the anomaly and disparity vis-à-vis the nature of the duty and age of retirement. There would have been a force in proving the plea of discrimination, had the management of hereditary trustee permitted any of the writ petitioners to continue beyond the age of 65 years by adopting a pick and choose WA Nos.1717/2023 & 1720/2023 27 policy but wisdom dawned and on 12.04.2023 an order was passed. Translation of the said order reads as under: “The Managers appointed by the Zamorin in the Temples under his Trusteeship, by Reference No. 1 representation requested Malabar Devaswom Board through the Trustee to re-designate them as Executive Officer. As per Reference No. 2, the Malabar Devaswom Board reviewed its Order No. 9 (II) (C) dated 24.08.2009 in view of Judgment in 2001 (2) KLT 252 and directed to re- designate the Managers as Executive Officers appointed by the Zamorin Raja under his Devaswoms. The same has been implemented also. In pursuance of the implementation of the said order, the Executive Officers became the highest Executive Authority of the Temple and all service conditions of Executive Officers appointed by the Devaswom Commissioner are fully extended and accepted by all concerned. The Trustee has been satisfied that there was delay in implementing the rules under Section 100(2) (P) & (X)(ii) whereby much inconvenience has been caused to the worshippers and public interest and also interest of the Temple whereby the legal duties and responsibilities in the management of the Temple were delayed. In the above circumstances, by re- designation as Executive Officers and service conditions and wages having been fully implemented the duties and function have to be discharged by the Executive Officers in the Temples under the Zamorin and as such the rules framed under Section 100(2) (P) & (X)(ii) are hereby WA Nos.1717/2023 & 1720/2023 28 made applicable to all the Executive Officers The Reference No. 2 shall be implemented without discrimination for which the Administrative Officer appointed in the Central Devaswom Office from among the Mangers of the Temple under Zamorin is also bound by this order. The post of the Administrative Officer created as per Reference No. 3 has been filled up by Reference No. 4 by promotion from among the Mangers for which Reference No. 5 approval was received. So that, the rules framed under Section (2)(P) & (X)(ii) is hereby made applicable to the Administrative Officers.”

18. The grievance raised by the petitioners, in our considered view, could not have been entertained by the Single Bench as they were aware of such situation when the judgment re-designating as Executive Officer came to be passed as far back as in 2001; for the purpose of retirement of the Executive Officers, they would be falling under Section 100(2)(x)(ii) providing age to serve is sixty years as per Rules. On nearing the age of sixty years when an order was passed, the said disgruntlement erupted. The objection of maintainability of the writ petitionhas not been considered by the Single Bench, though objection thereof has WA Nos.1717/2023 & 1720/2023 29 specifically taken as, concededly the order impugned was assailed by a revision under Section 18 and was withdrawn without liberty. The application submitted reads as under: “The above revision is filed challenging the order issued by the trustee No. ZR. 1720/2023 dated 12.4.2023 It is submitted that the revision petitioners have decided to file writ petition before the Hon'ble High Court, by way of challenging the constitutional validity of the said order, the petitioners may be permitted to withdraw the above revision petition without prejudice to their right to raise the contentions before appropriate authorities at appropriate time. Therefore it is humbly prayed that the Hon'ble Commissioner may be pleased to permit the petitioner to withdraw the above revision petition.”

19. Though it is settled that if the liberty is sought and not granted it would have been deemed to be granted. But the affected parties cannot be permitted to indulge into forum shopping for, the revisional court did not grant any interim stay. Things did not stop here. Vide interim order writ petitioner in W.P.(C)No. 14616/2023 was permitted to continue as Administrative Officer without emoluments. In WA Nos.1717/2023 & 1720/2023 30 case the plea of the writ petitions is accepted, it would create a anomaly and disparity among the set of Executive Officers appointed through Commissioner and re-designated Executive Officers like the petitioners. Rather if the judgment is permitted to sustain, it would give a cause of action to the Executive Officers appointed by the Commissioner to seek the retirement age as 65 years. This aspect has not been envisioned or noticed while allowing the writ petitions. The Division Bench of this Court in Gireesh supra, in Paragraphs 11 and 12, noticing the provisions of the Act, observed as under:

11. It is true that the service conditions of Executive Officer appointed directly by the Commissioner under Sec.66 of the Act as well as the Executive Officer appointed by the temple devaswom in terms of Sec.58 read with Sec.48 etc are commonly regulated by the rules framed under Sec.100(2)(x)(ii) of the Act in view of the mandate of that provision. But, that cannot be the basis to contend that an Executive Officer appointed by the temple devaswom is not a temple employee, for the purpose of entitlement for the benefit of Anx.R-1(1) scheme. As already noted in the reference order, the post of Executive Officer of the temple to which the petitioner has been appointed has been included in the statutory schedule as WA Nos.1717/2023 & 1720/2023 31 mandated by Rule 10 of the Rules framed under Sec.100(2)(y) of the Act.

12. Rule 10 of the Rules framed under Sec.100(2)(y) of the Act stipulates that the pay and emoluments in cash and in kind of each officer and servant of the temple devaswom shall be in accordance with a schedule of establishment framed by the trustee and approved by the Area Committee in the case of institutions under the jurisdiction of the Committee and by the Commissioner in the case of other institutions, and the trustee shall not alter the schedule without previous permission of the Area Committee or the Commissioner, as the case may be.

20. It is the correct appreciation of the Rules, as extracted above. The controversy with regard to the retirement age had also been a matter of ponderance in other Division Bench in W.A.No.2087/2023, while rejecting the contention of the Executive Officer, it has been held as under:

17.A reading of the rules would make it clear that the appointment of the Executive Officer is to be made by the Commissioner and that such Executive Officer would no longer be a temple employee as understood under Section 100(2)(y) of the Act.

18.The rules under Section 100(2)(y) specifically provides as follows:- WA Nos.1717/2023 & 1720/2023 32 “1.The rules in this Part shall apply to all officers and servants of religious institutions except the officers and servants constituting the establishment of the Tirumalai-Tirupathi Devasthanams to whom the rules framed under Section 100(2)(x)(i) apply and executive officers appointed for religious institutions under any provisions of the Act or in pursuance of the scheme settled or deemed to be settled thereunder, to whom the rules framed under Section 100(2)(x)(ii) apply.”

19.It is, therefore, clear that where a person is appointed as an Executive Officer either through direct recruitment or by promotion as provided in Rule 4(a)(1) of the Rules under Section 100(2)(x)(ii), he is thereafter governed by the provisions of the rules framed under Section 100(2) (x)(ii) and cannot continue to be a temple employee so as to be governed by the provisions of the rules framed under Section 100(2)(y). It is clear that the rules under Section 100(2)(y) would apply only to non-hereditary employees of the temple, who are appointed by the trustee and not to Executive Officers, who are appointed by the Commissioner, either by direct recruitment or by transfer from temple employees. The contention of the learned counsel for the appellant that the appellant, being an Executive Officer who was appointed by transfer would continue to be governed by the provisions of the rules framed under Section 100(2)(y) cannot be accepted in the light of the specific provisions of the Act and the Rules. We are, therefore, of the opinion that the findings of the learned single Judge do not require any interference. The WA Nos.1717/2023 & 1720/2023 33 writ appeal thus fails and the same is, accordingly, dismissed.”

21. Rule 4 (2) under Section 100(2)(y) does not mean that the servants and officers governed under the aforementioned Rule would continue to hold the office at the age of sixty five years. It only meant that persons less than eighteen years cannot be appointed to draw distinction between the hereditary trustees and other properly recruited employees.

22. Even Section 100(2) provides an exception non- applicability of section 100(2)(y) to the Executive Officers. The aforementioned exception has been made to rule out any confusion or ambiguity if at any point of time, the provisions of section 4 (2), as in the instant case, has been agitated.

23. The cumulative effect of our observations lead to an irresistible conclusion that the Single Bench did not notice the impact and effect of the judgments (supra) and also the ratio culled out in the unreported judgment of the Co- WA Nos.1717/2023 & 1720/2023 34 ordinate Bench. For the reason aforementioned, the judgment of the Single Bench is set aside. Writ appeals stand allowed. Sd/- AMIT RAWAL JUDGE Sd/- C.S. SUDHA JUDGE WA Nos.1717/2023 & 1720/2023 35 APPENDIX OF WA 1720/2023 PETITIONER ANNEXURES Annexure A1 Annexure A2 TRUE COPY OF THE SCHEME FORMULATED BY THE DEPUTY COMMISSIONER, HR&CE DEPARTMENT DATED 09.04.1973 AND READABLE COPY TRUE COPY OF THE JUDGEMENT DATED 25.02.2022 IN GIREESH VS MALABAR DEVASWOM BOARD IN W.P. (C) NO. 22550 OF 2020 OF THIS HON'BLE COURT RESPONDENT ANNEXURES Annexure R(1)(a) TRUE COPY OF THE WORK DISTRIBUTION ORDER DATED 12-07-2023 ISSUED BY THE APPELLANT Annexure R(1)(b) TRUE COPY OF THE ORDER NO.ZR31/2018 DATED 01-02-2018 ISSUED BY THE APPELLANT TO THE 1ST RESPONDENT Annexure R(1)(c) TRUE COPY OF THE ORDER NO.A1-4231/2010 DATED 22-02-2011 ISSUED BY THE APPELLANT TO THE EXECUTIVE OFFICER OF THRIPPANGODU DEVASWOM Annexure R1(d) TRUE COPY OF THE NOTE NO.J3-803/2009 DATED NIL ISSUED BY THE 4TH RESPONDENT COMMISSIONER WA Nos.1717/2023 & 1720/2023 36 APPENDIX OF WA 1717/2023 PETITIONER ANNEXURES Annexure A1 Annexure A2 Annexure A3 TRUE COPY OF THE SCHEME FRAMED BY THE DEPUTY COMMISSIONER IN O.A. NO. 13/2001 DATED 13.01.2004 TRUE COPY OF THE SCHEME FORMULATED BY THE DEPUTY COMMISSIONER, HR & CE DEPARTMENT VIDE PROCEEDINGS DATED 09.04.1973 TRUE COPY OF THE JUDGEMENT DATED 25.02.2022 IN GIREESH VS MALABAR DEVASWOM BOARD IN W.P. (C) NO. 22550 OF 2020 OF THIS HON'BLE COURT Annexure R7 (a) TRUE COPY OF THE REQUEST LETTER DATED 19.09.07 TO THE TRUSTEE WITH ENGLISH TRANSLATION OF THE SAME Annexure R7(b) TRUE COPY OF THE ORDER DATED 02.02.2009 OF THE TRUSTEE WITH ENGLISH TRANSLATION OF THE SAME Annexure R7(c) TRUE COPY OF THE ORDER DATED 03.07.09 OF THE TRUSTEE WITH ENGLISH TRANSLATION OF THE SAME Annexure R7(d) TRUE COPY OF THE PETITION DATED 22.07.2009 WITH ENGLISH TRANSLATION OF THE SAME Annexure R7(e) TRUE COPY OF THE ORDER DATED 15.09.2009 WITH ENGLISH TRANSLATION OF THE SAME Annexure R7(f) TRUE COPY OF THE ORDER DATED 15.09.2009 WITH ENGLISH TRANSLATION OF THE SAME RESPONDENT ANNEXURES Annexure R1(a) TRUE COPY OF THE LETTER A7.4231/2010 DATED 22.02.2011 WITH ENGLISH TRANSLATION