E.M.Narayanan Namboothir Vs. CochIn Devaswom Board - Court Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI WEDNESDAY, THE 3RD DAY OF JULY 2013 12TH ASHADHA, 1935 WP(C).No. 29723 of 2012 (M) ----------------------------------------- PETITIONER(S): ----------------------- E.M.NARAYANAN NAMBOOTHIRI, ERINJANAVALLI MANA, M.G.ROAD, IRINJALAKKUDA TRICHUR DISTRICT. BY ADVS.SRI.M.P.ASHOK KUMAR SRI.S.A.ABDUL SALEEM SRI.S.NANDAGOPAL RESPONDENT(S): ------------------------- COCHIN DEVASWOM BOARD THRISSUR, REP.BY ITS SECRETARY,PIN-680001. R1 BY ADV. SRI.KRISHNA MENON, SC, TRAVANCORE DEVASWOM BOARD BY SRI.KRISHNA MENON, SC, COCHIN DEVASWOM BOARD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/06/2013, ALONG WITH DBP. 1/2013, THE COURT ON 03/07/2013 DELIVERED THE FOLLOWING: tss W.P.(C) NO.29723/2012 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE REPORT DTD 16.12.2009 WITH ANNEXURES A. P2:- COPY OF THE ORDER DTD. 31/3/10/ P3:- COPY OF THE NOTIFICATIONS OIN MATHRUBHOOMI DAILYDTD 7 9.2012 AND 20.9.2012 AND 29.10.2012. P4:- COPY OF THE LETTER DT.D 29.10.2012. P5:- COPY POF THE RULES PUBLISHED IN THE GAZETTE DTD. 8.2.2001. P6:- COPY OF THE RULES UNDER SECTION 122 2) OF THE TCHRI ACT NOTIFIED IN GAZETTE DTD. 21.10.1975. P7:- COPY OF THE JUDGMENT AND BYE-LAW IN WP(C) NO.14117/1984 dtd. 9.9.86. P8:- COPY OF THE ORDER DTD 10.8.87. RESPONDENT'S EXHIBITS NIL TRUE COPY P.A. TO JUDGE tss T.R.RAMACHANDRAN NAIR & A.V.RAMAKRISHNA PILLAI, JJ.

- - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.29723/2012 and D.B.P.No.1/2013 - - - - - - - - - - - - - - - - - - - - - - - - - - DATEDTHIS THE 3rd DAYOF JULY, 2013 JUDGMENT Ramachandran Nair, J.

D.B.P.No.1/2013 arises from C.D.B. Report No.1/2013 filed by the learned Ombudsman appointed for the Travancore and Cochin Devaswom Boards, in a petition filed by the Cochin Devaswom Board seeking approval of amendment to Clause 12 of Appointment and Transfer of Santhi Rules - Chottanikkara Temple - Chottanikkara Devaswom (hereinafter referred to as 'the Rules'). W.P.(C) No.29723/2012 is filed by the petitioner who is functioning as Melsanthi of a Temple under the Cochin Devaswom Board and a seniormost 'A' Grade Santhi. He is aggrieved by Ext.P4 proceedings of the Board informing that he is not eligible for the post of Melsanthi in Chottanikkara Bhagavathi Temple. He also challenges the validity of the rules for appointment of Santhies on various grounds.

2. First we will refer to the detailed facts stated in the report of the learned Ombudsman which is the subject matter of D.B.P.No.1/2013. Clause 12 of the Rules as of now, allows the Board to select Santhikars of WPC 29723/2012 & DBPNo.1/2013 -2- Chottanikkara Temple from among the A grade Santhikars by drawing lots. Before getting the names included in the list of Santhikars for drawing lots, they should get certified by the thanthries at Chottanikkara Temple to the effect that they are fit for working in Chottanikkara Temple. The post will be filled up for a period of two years. They will be selected and posted for one term and also will be eligible for inclusion in the list of Santhikars for drawing lot for new terms also. A copy of the norms have been produced as Annexure I along with the petition filed by the Board. Clause 12 as now stands, is extracted below: "Clause 12:- Santhikars of Chottanikkara temple will be selected from among the A grade Santhikars by drawing lots and posted for a period of two years. Before getting the names included in the list of Santhikars for drawing lots, they should get certified by the Thanthries at Chottanikkara temple to the effect that they (the Santhikars) are fit for working in the Chottanikkara temple. By drawing lots, the posts of Melkavu Santhy, Keezhkavu Santhy, Keezhsanthy and Siva Santhy of Chottanikkara temple will be filled up for a period of two years. Those once selected and posted for these posts will be included again in the list of Santhikars for drawing lots for the new term." WPC 29723/2012 & DBPNo.1/2013 -3- The proposed amendment to Clause 12 which is available in page 3 of the petition filed by the Board, is extracted below: "Two santhies of Chottanikkara Melkavu Temple will be selected, for a period of one year by drawing lots from among the A, B and C grade Santhies under the service of the Cochin Devaswom Board who have completed 45 years of age and 15 years of service as Santhy under the Board as on the date of notification. Persons against whom any punishment was awarded during the last ten years or any disciplinary action is pending are not eligible for selection to the post. The Santhies of Keezhkavu, Sastha and Siva Temples will be selected for a period of one year by drawing lots from among the A, B and C grade Santhies under the Service of Cochin Devaswom Board who have completed 5 years of service as Santhy under the Board as on the date of notification and against whom no punishment was awarded during the last ten years or any disciplinary action is pending. Before getting the names included in the list of Santhies for drawing lots, they should qualify the screening test to be conducted by a screening committee constituted by the Board in which the representatives of the two Thanthri families of Chottanikkarra temple and a nominee of Thanthri Samajam as approved by the Board will be members. WPC 29723/2012 & DBPNo.1/2013 -4- For selection of Two Santhies for melkavu, while drawing lots of the qualified Santhies, first preference will be given to A Grade Santhies. If the required numbers of A Grade Santhies are not available, then those qualified B Grade Santhies will also be included in the lot. If the required numbers of Santhies are not available from A and B Grade Santhies together then those qualified C grade Santhies will also be included in the lot for Keezhkavu, Sastha and Siva temple all eligible Santhies will be included in the lot together. By drawing lots two Santhies will be selected for Melkavu temple, one to act as Melsanthi and another as Keezhsanthy on a monthly rotation basis. That Santhy who is getting lot first will be appointed as first Melsanthi and the other will be the Keezhsanthy. Both the Santhies in Melkavu will be treated as Purappeda Santhies. The period of appointment of all the selected Santhies will be for one year from first Chingam to the last day of Karikidakam. Those who have been selected and posted to these posts will not be eligible to apply for these posts for a consecutive year." The material amendments are that instead of the present method of selection from among A grade Santhies, Santhies from among B and C grade will also be allowed to participate. The age limit is fixed as 45 and years of service WPC 29723/2012 & DBPNo.1/2013 -5- is fixed as 15. Before inclusion in the list for drawing lots, they should qualify the screening test and the committee including the representatives of two Thanthri families of the Temple and a nominee of Thanthri Samajam will conduct the same. It also shows that while drawing lots, first preference will be given to A grade Santhies and if the required number of A grade Santhies are not available, then those qualified B grade Santhies will also be included in the lot. If the required number of Santhies are not available from A and B grade Santhies together, then those qualified C grade Santhies will also be included in the lot for Keezhkavu, Sastha and Siva Temples by drawing lot. Two Santhies will be selected for Melkavu temple, one to act as Melsanthi and another as Keezhsanthi on a monthly rotation basis. The period of appointment will be for one year from first Chingam to the last of Karikdakam of Malayalam Era.

3. The main reason stated in the application filed by the Board for the proposed amendment is that there is scarcity of eligible candidates who belong to A grade Santhies. Learned Ombudsman has noticed that in similar applications filed earlier, this Court observed that attempts can be made to include all those who were being newly promoted as A grade WPC 29723/2012 & DBPNo.1/2013 -6- Santhies. It is recorded in the report of the learned Ombudsman that even after making such attempt, from among seven 7 eligible applicants, only one candidate was found suitable. Minimum two persons have to work as Melsanthi and Keezhsanthi in alternate months. With regard to the screening test also, it is stated that no marks are awarded as the selection is by finding out whether the candidate can answer all the questions and if he is not able to answer all questions he is found to be ineligible.

4. We heard learned counsel for the petitioner in W.P.(C) No.29723/2012, Shri M.P. Ashok Kumar and learned Standing Counsel for the Board, Shri V.Krishna Menon.

5. First we will refer to the arguments raised by the learned counsel for the petitioner in W.P.(C) No.29273/2012. The petitioner therein is one of the seniormost A grade Santhies. In the year 2009 he had participated in the screening test and he was included in the list as evident from the order passed by the Board, Ext.P2 and was appointed pursuant to the same. Ext.P3 is the notification issued by the Board dated 29.10.2012 inviting applications from among A grade Santhies for appointment as Melsanthi in Chottanikkara Temple. He also applied. The petitioner submits that he was WPC 29723/2012 & DBPNo.1/2013 -7- wrongly directed to appear for the screening test for selection, but he participated along with five A grade Santhies. According to him, the seniormost male member of the Thanthri family did not participate in the screening process. The interview was conducted by four junior persons whose names have been given in para 11 of the writ petition. Finally, he was informed that he is not eligible for appointment to the post of Melsanthi in Chottanikkara Bhagavathi Temple. It is submitted that he had served as Melsanthi for two terms, viz. from August 1995 to August 1996 and from 14/4/2010 to 15/11/2010.

6. Ext.P5 is the rules published, prescribing the mode of selection dated 8.2.2001, and framed under Section 122(2)(e) of the Travancore Cochin Hindu Religious Institutions Act (for short 'the Act'). Ext.P6 is the earlier adopted rules published on 21.10.1975. It is stated that while Ext.P6 was in force, another set of rules was published as per Ext.P7, in terms of the judgment of the Apex Court.

7. Learned counsel for the petitioner, Shri M.P. Ashok Kumar submitted that the rule making power of the Board does not extend to Temple employees including Melsanthi as it is concerned only with the WPC 29723/2012 & DBPNo.1/2013 -8- officers and servants. It is submitted hat Exts.P5 to P7 have been published independently and not in supersession of the earlier ones. Every time these are published without reference to the former one. It is further pointed out that certain procedures have been prescribed under the Act for publication of bye-laws and sub-section (3) of Section 122 insists that there should be previous publication of the rules and Section 123 insists that they should be published in the gazette. By relying upon the judgment of this Court in Jayan v. Chief Commissioner, Travancore Devaswom Board (2010 (4) KLT 757), it is pointed out that in the absence of previous publication, the rules cannot be termed as valid. Herein, since such a formality has not been gone into, Exts.P5 and P7 will be invalid. It is therefore submitted that the entire selection will have to be nullified.

8. Learned counsel for the petitioner further invited our attention to the report of the High Power Commission appointed by this Court concerning the establishment and submitted that no rules can be framed for Temple employees. Our attention was also invited to the rules for recruitment of candidates for appointment in the regular service of Cochin Devaswom Board and submitted that the same is for appointment in the WPC 29723/2012 & DBPNo.1/2013 -9- regular service. Santhikars will not come within the scope of these rules. In this context, learned counsel for the petitioner submitted that the rules framed are ultra vires the provisions of the Act and he relied upon a judgment of the Apex Court in Union of India and others v. S. Srinivasan {(2012) 7 SCC 683}.

9. Learned counsel for the petitioner further submitted that the system of selection as provided under Clause 12 is really causing heartburn to the A grade Santhies who have been rendering commendable service in major Temples. Learned counsel strongly canvassed for doing away with the system of selection, at any rate, in the case of Santhies who have already served in Chottanikkara Temple itself. It is submitted that a reading of Clause 12 will show that when a right is given to them to participate after their term is over, it cannot be further insisted that they should undergo the screening process again. It is submitted that after they have performed duties for one term as a Melsanthi of the same Temple, they cannot be termed as not eligible and the present procedure therefore really smacks arbitrariness. Learned counsel further relied upon the Devaswom Manual to contend that there are different types of Santhikars, Kazhakams and other WPC 29723/2012 & DBPNo.1/2013 -10- Temple employees who have got Karazhma right also. Therefore, the provision under Section 122(2)(e) of the Act only enables the Board to frame rules for regular officers and servants under establishment wing and not for Temple employees. He also opposed the proposed amendment to include Santhikars of B and C grade group of Temples. It is submitted that A grade Temples are as such who have been categorized based on their income and importance. If the same is done away with, then the Melsanthies of A grade Temples will have to compete along with B and C grade Santhies which also is not justified.

10. Shri V. Krishna Menon, learned Standing Counsel for the Board submitted that the power conferred under Section 122 of the Act really applies to Temple employees also, since all employees under the Board including establishment and temple employees come under one umbrella. They are serving the Board and therefore it cannot be said that the Temple employees will go out of the purview of Section 122(2) (e) of the Act. It is submitted that the words "officers and servants" in Section 122(2)(e) are not used in the restricted sense but in a wider term. It is submitted that when the Devaswom Board was formed after independence, various steps were WPC 29723/2012 & DBPNo.1/2013 -11- taken in the matter of appointment of establishment and temple employees and such being the case, the narrow interpretation sought to be introduced by the petitioner cannot be justified.

11. With regard to the contention that the rules are bad for want of previous publication, learned counsel submitted that Ext.P5 is the draft rules and final notification is not yet finalised and therefore no illegality can be attached, so as to nullify the same and this Court can direct the Board to finalise the rules.

12. With regard to the locus standi of the petitioner, learned Standing Counsel for the Board submitted that the petitioner had participated in the screening test without any demur and therefore in the light of the principles stated by the Apex Court in Madan Lal and others v. State of J & K and others {(1995) 3 SCC 486), after participating in the selection process and after finding that he was not selected, he cannot be heard to say about the alleged invalidity of the rules itself. It is submitted that he cannot be allowed to blow hot and cold at the same time. It is also submitted by the learned Standing Counsel that the rules have been issued from time to time modifying certain terms and therefore even if it is not restated in the WPC 29723/2012 & DBPNo.1/2013 -12- subsequent notification that it is issued in supersession of the earlier one, no invalidity can be attached to them.

13. Section 122 (2)(e) reads as follows: "122. Rules.-- (1) The Board may make rules to carry out all or any of the purposes of this Act not inconsistent therewith. (2) In particular and without prejudice to the generality of the foregoing power, the Board shall have the power to make rules with reference to the following matters:- (a) to (d) omitted (e) the method of recruitment and qualifications, the grant of salaries and allowances, discipline and conduct of officers and servants of the Board and of the Devaswom Department and generally the conditions of their service. Therefore, the Board is having power to make rules specifically with respect to the method of recruitment and qualification, the grant of salaries and allowances and the conduct of officers and servants of the Board.

14. It is relevant at this stage to reiterate that as far as Temple employees and employees under the establishment are concerned, their salaries are being fixed from time to time including revision of pay and allowances and various service benefits are also conferred on them. Even if WPC 29723/2012 & DBPNo.1/2013 -13- it is said that Temple employees are differently placed with regard to the performance of duties than the employees under establishment, it cannot be said that their conditions of service cannot be subject matter of the rules. The words "officers and servants" are used in a wider sense, so as to cover the entire spectrum of employees coming under the establishment and Temples as otherwise it will lead to anomalous results. Any employee serving under the Board will come within the meaning of the term "servant" and "officer" will be a person who is appointed to an office. If the rule is understood in that manner, according to us, there is no difficulty. Various rules have been framed by the Board in terms of the provisions under Section 122 of the Act also in respect of matters prescribed therein. Of course, sub-rule (3) will have to be followed and previous publication should be there which aspect has been already held to be mandatory by this Court with regard to Section 31A of the Act, in the decision in Jayan's case (2010 (4) KLT 757).

15. It cannot be said that since there are Santhies and other temple employees who are doing karazhma services in the Temples under the Cochin Devaswom Board, it will have impact on the rule making power of WPC 29723/2012 & DBPNo.1/2013 -14- the Board. The Board, going by the provisions of the Act, will have to administer the Temples in accordance with the usage and customs. Therefore, many of such services are also protected. That will not do away with the power of the Board to frame rules in respect of the other categories of officers and servants. Therefore, we reject the contention of the petitioner in the writ petition that rules have been framed ultra vires the provisions of the Act.

16. As far as the guidelines are concerned, the Apex Court in Ext.P7 judgment, had directed the Board to frame a scheme while hearing Writ Petition Nos.14117-18 of 1984. The same was required for regulating the appointment and conditions of service of the Poojaries in Shantimattom Temples. The scheme has been approved as evident from the judgment itself. The scheme is also appended along with the judgment. The same was framed in terms of Section 122(2) of the Act itself. It contains various clauses regarding the appointment, salary, disciplinary matters and other aspects. Ext.P6 is the rules published on 21.10.1975 with respect to temple employees who do not fall under the establishment. Para 2 of the said rules will show that the rules will apply for categories WPC 29723/2012 & DBPNo.1/2013 -15- who are not coming under the establishment and will apply to Santhikars also excluding karazhma Santhies and all others having hereditary right. Ext.P5 is issued as per notification dated 8.2.2001. The judgment of the Apex Court is referred to in para 1 of the notification. It is clear from the report of the learned Ombudsman that there were directions issued by this Court from time to time, in respect of the guidelines.

17. One of the earlier judgments of this Court is in W.A.No.2541/1999 dated 13.10.2000. A reading of the said judgment will show that various writ petitions challenging the transfers were considered and the Division Bench issued directions after considering the guidelines prepared by the Board, with regard to the transfer of Santhies. Para 3 of the judgment contains a discussion on various clauses and the guidelines have been directed to be published and this Court has obviously granted approval to them also.

18. Next we will come to the challenge against the proposed amendment of Clause 12. A similar amendment was considered by this Court in D.B.A.No.78/2007 and by order dated 22.10.2008 this Court directed continuance of the selection process relating to Melsanthi by WPC 29723/2012 & DBPNo.1/2013 -16- including the applicants who are A grade Santhies only. While considering the matter, this Court has observed thus in para 3: "Chottanikkara Temple is one of the ancient and important Temple under the Cochin Devaswom Board. The poojas and other rituals performed in Melkavu as well as Guruthi Pooja in Keezhukavu are done by the Melsanthi on duty. Considering the importance of the temple and the said poojas to be conducted, we think that relaxation of the condition may not be feasible as at present. Admittedly, when the Santhies are included in Grades A, B and C, necessarily it shows that B grade Santhies are performing the poojas only in B grade temples and at any rate not in A grade temples, unless they are promoted. Therefore, while considering the appointment of Santhies in Melkavu is concerned, that being A grade temple, inclusion of B and C grade Santhies may not be considered desirable at this stage. There is proposal under consideration for increasing number of A grade Santhies, when necessarily, seniors in B grade Santhies will be promoted and there is also proposal made to upgrade the temples. Once it is implemented there will be more number of A grade Santhies, who can participate in the selection. In the circumstances, the interim order passed by this Court is confirmed and approval as sought for is granted except in the case of Melkavu Santhy. As regards WPC 29723/2012 & DBPNo.1/2013 -17- Melkavu Santhy is concerned, the present position will continue as respect the field of consideration is concerned." Significantly, it was observed that inclusion of B and C grade Santhies may not be considered desirable "at this stage". Thereafter also, another Division Bench considered a similar matter in the order passed in I.A.No.3253/2009 (Re-numbered as DBP No.57/2009) dated 16.11.2009. Therein, in para 10 this Court noticed that the request of including B grade Santhies in the zone of consideration, was rejected in DBP No.78/2007. It was observed with regard to the plea to include B and C grade Santhies that "since it is averred in the affidavit filed in the present application that there are vacancies to be filled up in the post of A Grade Santhies and some of the B and C grade Santhies are provisionally to be promoted, we do not think that any amendment to the existing rule is necessary. The contention that A Grade Santhies who have already worked earlier in Chottanikkara Temple need not undergo the screening test has been turned down by this Court as noticed above.................." Obviously, reference was made therein to a earlier order of this Court dated 4.9.2003.

19. It cannot be said that the proposed amendment could not have WPC 29723/2012 & DBPNo.1/2013 -18- been adopted in the light of the observations in the above two judgments of this Court. Evidently, on the said two occasions because of the then prevailing circumstances, this Court observed that the question of including B and C grade Santhies need not be considered at that stage.

20. The amendment is proposed in the light of the experience that many of the A grade Santhies are not coming forward and this year only one person has been selected, whereas two Santhies are required in the Melkavu itself. We find that the Board has fixed a minimum age of 45 and 15 years of service as Santhi under the Board as on the date of notification, for the applicants. It is clear that first preference will be given to A grade Santhies and if A grade Santhies are not available, then those qualified B grade Santhies will also be included in the draw of lot. Similarly, if the required number of Santhies from A and B grades together are not available, then those qualified C grade Santhies will also be included in the lot for appointment as Santhies in Keezhkavu, Sastha and Siva Temples.

21. Of course, the Board is promoting various Santhies of B grade to A grade from time to time. But in a matter like this, there cannot be any stalemate with regard to the appointment of Melsanthi in Chottanikkara WPC 29723/2012 & DBPNo.1/2013 -19- Temple. There should be some enabling provision for the Board to appoint a competent Santhi even if sufficient number of A grade Santhies are not competing for selection. The Thanthries will have to certify about the fitness of the persons. Therefore, there is nothing wrong in the proposed amendment and the same is therefore approved.

22. The next question is whether as argued by learned counsel for the petitioner Shri M.P. Ashok Kumar, the selection procedure should be done away with. A selection, in the normal circumstances, will do away with arbitrariness. Herein, Thanthries are in the selection committee. As rightly pointed out by the learned Standing Counsel for the Board, the Board is only acting in terms of the result of the selection made by Thanthries who alone will be entitled to assess the competency of the candidates. It is submitted that with regard to the selection which resulted in Ext.P4, the petitioner has not chosen to implead any of the Thanthries as respondents, for alleging any irregularities in the screening test. We find force in the above submission also. The guidelines fixed gives a form of selection, that too by Thanthries (high priests) and even though it is submitted by the learned counsel for the petitioner that the Santhies like the petitioner in the WPC 29723/2012 & DBPNo.1/2013 -20- writ petition are subjected to humiliation for appearing before the Thanthries, we cannot agree. Every time their knowledge in various matters are tested. Shri Ashok Kumar submitted that with regard to Chottanikkara Temple there are no other rituals other than normal rituals existing in other Temples. In respect of such religious matters, we will not be justified in entering into conclusions.

23. True that in Clause 12 of Ext.P5 it is specified that "Those once selected and posted for these posts will be included again in the list of Santhikars for drawing lot for the new terms". But Clause 12 will have to be read in its entirety. In the opening portion of the said rule it is clearly stated that "before getting the names included in the list of Santhikars for drawing lots they should get certified by the thanthries at Chottanikkara Temple to the effect that they (the Santhikars) are fit for working in the Chottanikkara Temple" It cannot be said that merely because of previous experience in the said Temple, any of the A grade Santhies can be automatically included for selection and be allowed to participate. Therefore, we find nothing wrong in the said system. The provisions are not arbitrary or discriminatory. WPC 29723/2012 & DBPNo.1/2013 -21- 24. Apart from the same, in the order in DBA No.78/2007 similar arguments have been repelled by this court earlier. In the common judgment in W.P.(C) No.26251/2003 and connected cases dated 4.9.2003 the very same issues have been considered by this Court. With regard to the contention that the necessity to obtain certificate from the Thanthries, has to be done away with, in para 9 the Division Bench has held as follows: "9. Question is whether Clause 12 of the guidelines is valid or not. So far as this Clause is concerned, it deals with Chottanikkara Bhagavathi Temple. Chottanikkarra Bhagavathi Temple occupies a unique place in the list of Temples under the Cochin Devaswom Board. It goes without saying that this Temple attracts a lot of devotees and this Temple has got a prominent position among the Temples. Probably, it is due to the difference in the rituals that interview is being conducted before a person appointed was transferred to the Chottanikkara Bhagavathi Temple. Hence, we cannot say that the method mentioned in Clause 12 is not correct. Another attack made on Clause 12 is that it is not necessary to obtain certificate from the thanthris. We don't agree with. It is not an interview. It is only to certify to find out whether the proposed Melsanthi performs rituals in the Temple. It cannot say that this condition is bad. The names of the persons, who have been certified by the WPC 29723/2012 & DBPNo.1/2013 -22- Thanthris are put in a lot. Selection is made on the basis of the lot. According to us, this method cannot be said to be illegal. Same method is adopted for the selection of Melsanthis in the Sabarimala and the Guruvayoor Temples." With regard to the argument that persons who have already worked as Melsanthies in Chottanikkara Temple need not get certificates from Thanthries, also, the Bench rejected the same as evident from para 10 by holding as follows: "We do not think this argument can be accepted. If they had already been Melsanthies of Chottanikkara Bhagavathy Temple, it will not be difficult for them to get certificate from the Thanthries." In the light of the above, as Clause 12 of the Rules has been upheld by this Court and similar contentions have been rejected, we do not find any reason to differ from the above view. The said judgments have stood the test of time.

25. In the decision relied upon by Shri M.P. Ashok Kumar, learned counsel for the petitioner in the writ petition, viz. B. Srinivasan's case {(2012) 7 SCC 683.various tests for considering the validity of the rules, WPC 29723/2012 & DBPNo.1/2013 -23- have been laid down in paragraphs 21 and 32. It is held that "if a rule goes beyond rule-making power conferred by the parent statute or supplants any provision for which power is not conferred, it becomes ultra vires." But we are of the view that the said principle will not apply in respect of Section 122(2)(e) of the Act as there is ample rule making power with regard to Temple employees also.

26. We therefore allow DBP No.1/2013 and sanction is accorded for the amendment of Clause 12 of Appointment and Transfer of Santhi Rules - Chottanikkara Temple - Chottanikkara Devaswom and we dismiss W.P.(C) No.29723/2012.

27. Since it is submitted that Ext.P5 produced in W.P.(C) No.29723/2012 is only a draft, it is not hit by sub-section (3) of Section 122 of the Act. Of course, the draft rules were acted upon for conducting the selection. The selection of Melsanthi has to be held from time to time. Therefore, there is nothing illegal in conducting the selection in terms of the draft rules also. But we direct the Board to publish the final notification as expeditiously as possible. The new Melsanthi has to take charge on the WPC 29723/2012 & DBPNo.1/2013 -24- 1st Chingam of Malayalam Era. The selection procedure will be completed and appointments will be accordingly made. No costs. (T.R.RAMACHANDRAN NAIR, JUDGE) (A.V. RAMAKRISHNA PILLAI, JUDGE) kav/