BALAKRISHNAN NAIR Vs. TRAVANCORE DEVASWOM BOARD

JUDGEMENT

(1.) THE 2 nd respondent in this writ petition who was func­tioning as the Devaswom Commissioner in the service of the Travancore Devaswom Board was due to retire on superan­nuation on the forenoon of 19 th August 1971. The peti­tioner in the writ petition was the seniormost officer in the category of Deputy Devaswom Commissioners, and he was apparently expecting to attain the position of Devaswom Commissioner on the retirement of the 2 nd respondent. On 11 th August 1971 the Travancore Devaswom Board(1st respondent)issued the order Ext. P -2 sanctioning the peti­tioner's promotion as acting Devaswom Commissioner in the vacancy which was to arise on the retirement of the 2nd respondent with effect from the forenoon of 19 th August 1971, and simultaneously posting the petitioner on other duty as Intelligence and Investigation Officer in a newly create temporary post bearing that designation and having the same pay scale as is attached to the post of Devaswom Commissioner. Under Ext. P -2 the Board has also sanc­tioned re -entertainment of 2nd respondent into its service as Devaswom Commissioner for a term of one year from 19th August 1971 in the vacancy occasioned by the posting of the petitioner to other duty as Intelligence and Investigation Officer. The petitioner has brought this writ petition seek­ing to quash Ext. P -2 in so far as it directs him to be on other duty as Intelligence and Investigation Officer and provides for the re -entertainment in service of the 2nd res­pondent as Devaswom Commissioner for a term of one year.

(2.) THE petitioner contends that the action taken by the Board for re -entertaining the 2nd respondent into its service as Devaswom Commissioner after he has passed the age of superannuation is without jurisdiction and is contrary to the provision contained in rule 60(a)of the Kerala Service Rules which have been made applicable to the per­sonnel employed in the service of the Board. It is also contended that in placing the petitioner on other duty as Intelligence and Investigation Officer and thereby depriving him of the post of Devaswom Commissioner to which he claims to be legitimately entitled, the Board has inflicted on the petitioner a penalty of reduction in rank without confor­ming to the procedure prescribed by the rules and in contra­vention of the principles of natural justice. Elaborating this contention it was argued that the post of Devaswom Commissioner is a statutory post to which are attached various statutory powers and functions and that once a person has been appointed to that capacity he cannot be divested of those powers and functions except by an order lawfully passed removing him from the said post for valid reasons.

(3.) ON behalf of the respondent -Board and also on behalf of the 2nd respondent it is submitted that there is no provision in any of the rules governing the service of the personnel employed under the Board which entitled the petitioner who was functioning as Deputy Devaswom Com­missioner to claim, as of right, a promotion to the post of Devaswom Commissioner on a vacancy arising in that post, and that it was left entirely to the discretion of the Board to fill up the said vacancy in such manner as it considered suitable in the best interests of the administration of its service. On this basis it is argued that no legal right whatever of the petitioner could be said to have been infringed even if the petitioner was wholly denied any promotion consequent on the attainment by the 2nd respondent of the age of superan­nuation and his retirement from service pursuant thereto. It is also submitted by the respondents that the Board could have retained the 2nd respondent in its service on its being satis­fied on public grounds that his continuance in service was necessary in the exigencies of administration. But, instead of adopting this course which would have resulted in the denial of any chance of promotion to the petitioner what was done was the Board decided on compassionate grounds that the petitioner who is also nearing the age of retirement need not be denied promotion and hence promoted him to the cadre of Devaswom Commissioner and posted the peti­tioner on other duty to the newly created equivalent post while continuing the 2nd respondent as Devaswom Com­missioner. This, the respondent submits, was perfectly within the jurisdiction of the Board and has only operated to the benefit of the petitioner and not at all to his detri­ment. In regard to the petitioner's contention that he has been subjected to a reduction of rank, the 1st respondent points out that the petitioner had not been promoted to the post of Devaswom Commissioner independently of the order Ext. P -2 and that his promotion to that post was only as part of the integral scheme to place him on other duty because the Board had already simultaneously taken a deci­sion that the 2nd respondent should be retained in service as Devaswom Commissioner by re -entertaining him in service for a term of one year. Even otherwise, it is con­tended by the respondents that the petitioner has no right to insist that he should be continued in the post of Devaswom Commissioner and should not be made to work in any other equivalent post. The allegation that the re -entertainment in service of the 2nd respondent has not been ordered on public grounds or for reasons of exigencies of service is denied by the Board, and it is stated that the Board took the said decision since it was firmly of opinion that the retention of the 2nd respondent in service for one year was for public good and that it was necessary for the proper execution of certain schemes like the'Kodi Archana'in Sabarimalai temple, etc. which he had already started.