Asokan R vs Travancore Devaswom Board, Represented By Its Secretary

Anil K. Narendran, J.

The petitioner, who participated in the tender process pursuant to Ext.P1 notification dated 24.08.2023 issued by the 2nd respondent Devaswom Commissioner in respect of Balitharas in Pamba Manappuram for ‘Pithru Tharpanam’ during the Mandala-Makaravilakku festival season of 1199 ME (2023-24), has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P3 shortlist of candidates prepared pursuant to Ext.P1 tender notification. The petitioner has also sought for a declaration that the tender process conducted by respondents 1 and 2 to select Purohits to perform ‘Pithru Tharpanam’ and associated rituals at Sabarimala during the Mandala-Makaravilakku festival season is tainted with favouritism and is illegal and arbitrary; and a writ of mandamus commanding respondents 1 and 2 to formulate appropriate protocols and guidelines to conduct the recruitment process.

On 26.10.2023, when this writ petition came up for admission, the petitioner filed I.A.No.1 of 2023 seeking an order to impleaded additional respondents 7 to 22. The learned counsel sought adjourned to get instruction as to the mode in which the notice could be taken to the said additional respondents sought to be impleaded. The learned Standing Counsel for Travancore Devaswom Board submitted that the Board suspects cartel formation by the bidders. Having considered the submissions made at the Bar, by the order dated 26.10.2023, the learned Standing Counsel was directed to make available for the perusal of this Court, the files relating to Ext.P3 list of eligible candidates.

On 30.10.2023, when this writ petition came up for consideration, this Court passed a detailed order restraining the 1st respondent Travancore Devaswom Board from proceeding further with Ext.P3 shortlist for a period of one week. The learned Standing Counsel for Travancore Devaswom Board entered appearance for respondents 1 to 3 and the learned Senior Government Pleader entered appearance for additional respondents 23 and 24. By the order dated 30.10.2023, urgent notice by special messenger was ordered to respondents 4 to 6 and also to additional respondents 7 to 22, returnable by 01.11.2023. In addition to that, service of notice on the said respondents was ordered through the concerned Station House Officer, considering the urgency of the matter since Mandala-Makaravilakku festival season of 1199 ME (2023-24) will commence on 16.11.2023. On 30.10.2023, this Court perused the files handed over by the learned Standing Counsel and the same was directed to be retained in the safe custody of Registrar (Judicial).

Today, when this matter is taken up for consideration, we heard the arguments of the learned counsel for the petitioner, the learned Standing Counsel for Travancore Devaswom Board for respondents 1 to 3, the learned Senior Government Pleader for additional respondents 23 and 24 and also the learned counsel for respondents 4 to 6 and additional respondents 7 to 14 and 16 to 22. Despite service of notice none appears for the 15th respondent.

Travancore-Cochin Hindu Religious Institutions Act, 1950 enacted by the State Legislature makes provision for the administration, supervision and control of incorporated and unincorporated Devaswoms and of other Hindu Religious Endowments and Funds. As per sub-section (3) of Section 1 of the Act, substituted by the Kerala Adaptation of Laws Order, 1956, Part I of the Act shall extend to Travancore, Part II of the Act shall extend to Cochin and Part III of the Act shall extend to the whole of the State of Kerala, excluding the Malabar District. Sabarimala Devaswom is an incorporated Devaswom mentioned in Schedule I of the Act, under Chengannur Group, Pathanamthitta Taluk.

Chapter II of the Act deals with the Travancore Devaswom. Section 3 of the Act deals with vesting of administration in Board. Section 4 of the Act deals with constitution of the Travancore Devaswom Board. As per sub-section (2) of Section 4, the Board shall be a body corporate having perpetual succession and a common seal with power to hold and acquire properties for and on behalf of the incorporated and unincorporated Devaswoms and Hindu Religious Institutions and Endowments under the management of the Board.

Section 15 of the Act deals with vesting of jurisdiction in the Board. As per sub-section (1) of Section 15, subject to the provisions of Chapter III of Part I, all rights, authority and jurisdiction belonging to or exercised by the Ruler of Travancore prior to the first day of July, 1949, in respect of Devaswoms and Hindu Religious Endowments shall vest in and be exercised by the Board in accordance with the provisions of this Act. As per sub-section (2) of Section 15, the Board shall exercise all powers of direction, control and supervision over the incorporated and unincorporated Devaswoms and Hindu Religious Endowments under their jurisdiction.

Section 15A of the Act, inserted by Act 5 of 2007, with effect from 12.04.2007, deals with duties of the Board. As per Section 15A, it shall be the duty of the Board to perform the following functions, namely, (i) to see that the regular traditional rites and ceremonies according to the practice prevalent in the religious institutions are performed promptly; (ii) to monitor whether the administrative officials and employees and also the employees connected with religious rites are functioning properly; (iii) to ensure proper maintenance and upliftment of the Hindu religious institutions; (iv) to establish and maintain proper facilities in the temples for the devotees.

Section 31 of the Act deals with management of Devaswoms. As per Section 31, subject to the provisions of Part I and the rules made thereunder, the Board shall manage the properties and affairs of the Devaswoms, both incorporated and unincorporated as heretofore, and arrange for the conduct of the daily worship and ceremonies and of the festivals in every temple according to its usage.

In view of the provisions under the Travancore-Cochin Hindu Religious Institutions Act referred to hereinbefore, conclusion is irresistible that, the administration of Sabarimala Devaswom, which is an incorporated Devaswom mentioned in Schedule I of the Act, and all its properties and funds shall vest in the Travancore Devaswom Board. The Board is duty bound to see that the regular traditional rites and ceremonies according to the practice prevalent in Sabarimala are performed promptly; to monitor whether the administrative officials and the employees, and also the employees connected with religious rites are functioning properly; and to establish and maintain proper facilities in Sabarimala for the devotees. Subject to the provisions of Part I of the Act and the Rules made thereunder, the Board shall manage the properties and affairs of Sabarimala Devaswom and arrange for the conduct of the daily worship and ceremonies and of the festivals in Sabarimala according to the usage.

In Rajani P. Kuttan and another v. State of Kerala and others [2021 (6) KHC 513] a Division Bench of this Court noticed that among the 1250 Temples managed by the Travancore Devaswom Board, only 60 major Temples are self-sufficient and the rest are being managed utilising the surplus income from Sabarimala Devaswom. The total number of sanctioned posts in various categories in the Travancore Devaswom Board is 5692 and the total number of pensioners is 5749. The major source of revenue of the Travancore Devaswom Board is the income received by way of offering by the devotees, the amount received from vazhipadu and the revenue generated through the auction of temple premises for various activities in connection with rituals and festivals in the Temples. Paragraph 59 of the said decision reads thus:

The Financial position of the Devaswom Board:- The competent officer of the Devaswom Board filed an affidavit dated 14.06.2021 stating its financial position. It is submitted that there are 1250 temples under the Administrative Control of the Devaswom Board. The total number of sanctioned posts in various categories in the Devaswom Board is 5692, and the total number of pensioners is 5749. It is further submitted that the major sources of revenue of the Devaswom Board are the income received by way of offerings from devotees, the amount received from vazhipadu, and the revenue generated through the auction of the temple premises for various activities in connection with rituals and festivals in the temples. Besides this, the Devaswom Board gets an approximate sum of 14 crores per annum by way of the rent of the buildings owned by it. The annual contribution from the State Government under Article 290A of the Constitution of India is Rs.80 lakhs. It is further submitted that among the 1250 temples managed by the Devaswom Board, only 60 major temples are self-sufficient, and the rest are being managed utilising the surplus income from Sabarimala Devaswom. Now, due to the spread of the Covid-19 pandemic, the temples remain closed, and the major source of income has come down. The Devaswom Board is finding it difficult even to pay the salary of the existing employees. The pleadings regarding the financial position of the Devaswom Board in the affidavit dated 14.06.2021 have not been controverted by the petitioners. (underline supplied)

The direction contained in the judgment of this Court dated 22.03.2022 in W.P.(C)No.41546 of 2017 was with specific reference to the procedure that was being adopted by the Travancore Devaswom Board for selecting purohits for performing ‘Pithru Tharpanam’ on the banks of Pamba Manappuram during the Mandala-Makaravilakku festival season of 1199 ME. Paragraphs 11 to 13 of the said judgment read thus;

“11. As stated in the statement filed on behalf of the Travancore Devaswom Board, during pilgrimage season, balitharpanam is conducted in Pamba Manalppuram, in 20 balitharas as per the layout prepared by the Maramath Wing of the Travancore Devaswom Board, which has already been approved by this Court. Every year, notification will be published inviting applications from qualified Purohits to conduct balitharpanam at Pamba Manalppuram. An interview Board consisting of the Devaswom Commissioner, the Temple Tantri, the Finance Commissioner, the Inspection Deputy Commissioner and a Purohit from Thiruvallam Devaswom, will interview the applicants and a list of qualified Purohits will be published in the order of merit, based on the marks secured in the interview. Auction of balitharas will be conducted every year, prior to pilgrimage season, and those who are qualified in the interview can take part in the auction and the successful bidders will be permitted to conduct balitharpanam in the respective balitharas allotted to them. The recognised Purohit Certificate holders can also take part in the auction.

The learned counsel for the petitioner in the respective writ petitions and also the learned counsel for the party respondents would point out that, in the matter of allotment of balithara there is no reservation for Adivasis (Scheduled Tribes). The learned Standing Counsel for Travancore Devaswom Board would submit that, as stated in the statement filed on behalf of the Travancore Devaswom Board, no balithara is earmarked for any particular Sabha/ Association/person.

The procedure adopted by the Travancore Devaswom Board in auctioning balitharas in Pamba Manalppuram during pilgrimage season, with 20 balitharas as per the layout prepared by the Maramath Wing of the Board, which has already been approved by this Court, warrants no interference, in the absence of any vitiating circumstances pointed out by the learned counsel for the petitioner in the respective writ petitions and also the learned counsel for the party respondents. However, out of 20 balitharas one balithara shall be earmarked for Adivasis (Scheduled Tribes) from forest settlements in and around Sabarimala, to be specified in the notification published by the Board, in case applicants from those forest settlements are included in the list of qualified Purohits published after conducting the interview, who are willing to bid that balithara at an amount not less than that offered for other balitharas. The notification inviting application from qualified Purohits to conduct balitharpanam at Pamba Manalppram shall be published in the 1st week of August, in which the eligibility criteria for Purohits and the documents required to be submitted along with the application shall be specified. The interview board consisting of the Devaswom Commissioner, the Tanthri, the Finance Commissioner, the Inspecting Deputy Commissioner and a Purohit from Thiruvallam Devaswom shall interview the candidates and publish a list of qualified Purohits, in the order of merit, based on the marks secured in the interview. The auction of balitharas shall be conducted, atleast three weeks prior to the commencement of the pilgrimage season, in which those Purohits who are qualified in the interview can participate. The successful bidders, who offer highest amount, shall be permitted to conduct balitharpanam in the respective balitharas at Pamba Manalppuram, during the pilgrimage season.”

As already noticed in the decision in Rajani P. Kuttan [2021 (6) KHC 513] only 60 major temples managed by the Travancore Devaswom Board are self-sufficient and the rest of the temples, out of 1250 temples, are being managed utilising the surplus income from Sabarimala Devaswom.

Having perused the records and also the submissions made at the Bar, we find that the cut-off mark adopted by the Travancore Devaswom Board for shortlisting the candidates after interview has to be modified appropriately, in order to ensure that, instead of 19 Purohits for 19 Balitharas, more number of Purohits can be included in the shortlist, who can participate in the tender process to ensure that maximum amount is fetched for the Balitharas in Pamba Manappuram.

The submission made by the learned Standing Counsel is that persons who secured 52 marks in the interview, out of the total marks of 85 (61% marks), are included in the shortlist of candidates eligible to participate in the tender process. In case, the cut-off mark is taken as 40%, all those who secured 34 marks in the interview can be included in the shortlist, in which event, 26 Purohits can participate in the tender process for 19 Balitharas in Pamba Manappuram.

As already noticed in the order dated 30.10.2023, 19 persons who are shortlisted for allotment of 19 Balitharas (other than one reserved for Scheduled Tribe category) quoted the very same rate. Others participated in the tender process including the writ petitioner, except a few, also quoted the very same rate. In the order dated 30.10.2023, this Court noticed that prima facie there was cartel formation by bidders participated in the tender process pursuant to Ext.P1 notification.

During the Mandala-Makaravilakku festival season of 1198 ME (2022-23), this Court issued various orders regarding crowd management and other issues in Nilakkal, Pamba and Sannidhanam. As evident from the proceedings in that matter, the average footfall in most of the days during that festival season was around 1 lakh pilgrims and, in few days, it had even crossed above 1 lakh. The Board expects more pilgrims during Mandala-Makaravilakku festival season of 1199 ME. In such circumstances, there should be proper facilities for pilgrims to perform Balitharpanam in Pamba Manappuram, during the festival season.

In such circumstances, this writ petition is disposed of by directing the 2nd respondent Devaswom Commissioner to publish a fresh shortlist of candidates in terms of Ext.P1 notification, by including 26 Purohits, who have secured 40% marks and above, i.e., 34 marks and above, as candidates eligible for participation in the tender process in the open auction for 19 Balitharas in Pamba Manappuram. The 2nd respondent shall publish the revised shortlist by tomorrow (03.11.2023) and the open tender process shall be conducted on 06.11.2023 at 11.00 a.m. at the Devaswom Head Quarters, Thiruvananthapuram. Immediately after the preparation of revised shortlist, a copy of the same, along with the notice regarding the tender process, shall be communicated to the respective bidders in their e-mail ID and also in their mobile number provided in the tender documents.

After conducting the tender process, the Board shall file a DBA seeking permission to allot Balitharas to the respective Purohits. The said application shall be listed before the Bench on the very same day itself, in which the Purohits, who participated in the open tender shall be arrayed as the respondents.

Registry to return the files handed over by the learned Standing Counsel for Travancore Devaswom Board today itself.