ORDER
1. The petitioner prays for the issue of certiorarified mandamus calling for the records relating to the letter in Mu.Mu.No.92120/92 H2 dated 17.11.1998 on the file of the first respondent, the Commissioner Hindu Religious and Charitable Endowments, quash the same and direct the respondents to appoint the petitioner as the Poosari for Arulmigu Vanabadrakaliamman Temple, Thekkampatti, Nellithurai.
2. Heard Mr.T.L.Ram Mohan, senior counsel for petitioner, Mr.R.Balasubramanian, Special Government Pleader for the first respondent and Mr.W.C.Tiruvengadam for the second respondent and Mr.D.Rajagopal for the 4th respondent.
3. According to the petitioner, the second respondent is the hereditary trustee of Arulmigu Vanabadrakaliamman Temple, that a vacancy for the post of Poosari arose in the said temple, that the said post is lying vacant for the past 3 1/2 years, that the petitioner’s father was a poosari in the said temple for nearly 40 years, that after reaching the age of super-annuation, he retired on 30.6.1995, that thereafter no regular poosari has been appointed that the second respondent without filling up the permanent vacancy has been performing the poojas through one Jyotimani, who was actually a Pracharkar and not qualified to perform the rituals to the Deity and that there had been strong protest for the continuance of the said Jyothimani.
4. It is further contended by the petitioner that to fill up the permanent vacancy, the second respondent invited applications by a publication made in Thinanthanthi dated 21.11.97, that the petitioner applied to the said post,
besides eight others, that on 13.5.1998 an interview was conducted, that the petitioner produced all the testimonials to prove his qualifications, that in all five persons including the petitioner out of nine appeared for interview, that after conducting selection, the second respondent selected the petitioner as Poosari and also passed resolution on 19.5.1998, that the second respondent did not issue orders of appointment on certain objections raised by the first respondent, that the first respondent had objected to the appointment as certain civil proceedings instituted by the petitioner against the temple is pending and that in view of the same, the petitioner it is alleged is not qualified to be appointed to the post of poosari.
5. It is further alleged by the petitioner that a legal opinion was obtained by the second respondent, that the second respondent was advised that the pendency of the suit is not a bar for the appointment of the petitioner, that a vacancy either temporary or permanent in a religious institution has to be filled up by the trustees in all cases, that the second respondent moved the first respondent for permission to appoint, that the first respondent was not inclined to approve the appointment that the first respondent by letter dated 17.11.1998 declined permission to appoint the petitioner without going into the petitioners eligibility while directing that the second respondent should follow the instructions given in Circular No.41491/92 H1 dated 22.5.1992 as well as another circular dated 16.6.1993 and that proposal should be sent to the first respondent through the Joint Commissioner under Section 23 of the Act to fill up the post.
6. According to the petitioner, in view of the first respondent’s letter dated 17.11.1998, the second respondent is reluctant to appoint the petitioner, though the second respondent alone is the competent authority to appoint all the employees of the temple. The proposals submitted in this respect had been delayed. According to the petitioner, the second respondent is the competent appointing authority for the said post and that the first respondent cannot interfere in the guise of exercising general powers under Section 23 of the Act.
7. It is stated that Section 23 of the Act has no application as it provides for general superintendence and that a specific power has been conferred on the hereditary trustee to appoint poosari and others and that the first respondent, if at all could have powers of superintendence but not the power to interfere or intrude with the powers and rights of the second respondent trustee.
8. It is further stated that at the time of interview the Assistant Commissioner, H.R.&C.E. department was also present. It is the contention of the petitioner that the first respondent cannot prevent the second respondent from appointing his employees and such an action is illegal, without jurisdiction, besides being arbitrary. The second respondent has been conferred with the authority to appoint his own employee. There is no justification at all to delay the appointment when the petitioner is qualified in all respects and when he had been selected by the second respondent.
9. It is further contended by the petitioner that there is provision under
the Tamil Nadu Hindu Religious Endowment Act and every appointment
made by the hereditary trustee under Section 55 of the Act will be subject to
the approval of the first respondent. In the absence of such a statutory
provision and power of superintendence the first respondent cannot insist that
every such appointment requires to be approved in advance. It is further
contended that Administrative circulars cannot over-ride the statutory
provisions of the Act or Rules framed under the Act. Hence the impugned
proceedings of the first respondent are liable to be quashed and that writ of
mandamus consequently has to be issued directing the respondents to appoint
the petitioner.
10. In the said writ petition one Jyothimani had taken out W.M.P.No.7812 of 1999 to implead himself and the said application has also been ordered as prayed for. In fact at the hearing, Mr.D.Rajagopal also submitted his arguments. Apart from the said temple and Jyothimani, the Executive Officer of the same Arulmigu Vanapathira Kaliamman Temple also got himself impleaded, as according to the Executive Officer he is competent to represent the temple.
11. The Executive Officer of the temple had filed an affidavit in support
of the application to implead himself and had also requested that the
averments set out in the affidavit filed in support of the application
W.M.P.NO.12903 of 1999 may be referred and taken as his case. According to
the Executive officer, the first respondent Commissioner had appointed the
Executive Officer for the temple by order dated 10.4.1993 under Section 45(2)
of the Tamil Nadu Hindu Religious Endowments Act and in the said
proceedings the powers and duties of the Hereditary Trustees as well as the
Executive Officer are defined.
12. On 30.6.1995, the poosari of the temple retired on reaching the age
of superannuation and till the post is filled up, the retired poosari was asked to
continue with a view to avoid interruption in the performance of poojas.
Subsequently, alternative arrangements were made by the hereditary trustee as
well as by the Executive Officer for the performance of poojas and rituals
without a break. One Jyothimani who is a permanent employee was directed
to perform the poojas. That apart under service Rule 9 of the Rules allocating
powers between the hereditary trustees and the Executive Officer, the duty of
the Executive Officer is to see that poojas and other services are performed
according to usage and thittam.
13. It is further contended by the Executive Officer that Jothimani is in
the Ulthurai Service of the temple since 1.7.1976. The Hereditary Trustee
passed the resolution on 4.5.1995 recording that one Thangavel was not
willing to work on daily wages and hence Jyothimani Was required to officiate
as Poojari as additional charge by order dated 16.8.1995. The Poosari of the
temple had to employ several assistants and they have to be paid allowances.
The said Jothimani was informed that he would not be eligible for share in the
ticket collection and the same was informed by proceedings dated 1.10.1995
issued by the hereditary trustee.
14. The Hereditary Trustee challenged the order dated 2.8.1995 in W.P.No.13846 of 1995 and prayed for interim stay, which interim relief had been negatived. It is further stated by the Executive Officer that an interview was ultimately conducted on 13.5.1998, the Hereditary Trustee selected the writ petitioner for the post of Poosari on 19.5.1998. According to the Executive Officer the hereditary trustee had the knowledge that the writ petitioner was all along engaged in the business of selling coconuts and other pooja articles in the front of the temple and not even once assisted his father in the pooja service, besides the Writ petitioner is a systematic encroacher of the temple property, and litigations were pending for generations together.
15. The Commissioner had on a careful consideration of the report submitted against the writ petitioner rejected the proposal to appoint the writ petitioner as Poosari of the Temple. The various contentions raised by the writ petitioner had been controverted. According to the said Executive Officer, the Commissioner has got the powers under Section 23 to give any lawful direction and that the hereditary trustee has to exercise his power of administering the temple subject to Sections 27 and 28 of the Act.
16. It is contended that the power of appointment of temple servants is within the exclusive domain of the trustee under Section 56 of the Act and the Commissioner has no right of say in it and it is a mischievous plea. Section 32 of the Act has been referred to. Rule 14(1) of the Tamil Nadu Hindu Religious Institutions (Officers and Servants) had been referred to by the writ petitioner to substantiate his claim.
17. According to the said respondent on the facts of the case, the petitioner is not entitled to any relief. According to the Executive Officer, no case has been made out for interference in this writ petition and he had prayed for vacating the interim stay.
18. The second respondent hereditary trustee of the temple had filed a separate counter. It is admitted by the second respondent that Sri Vanabadrakaliamman temple, falls under the control of the Joint Commissioner HR & CE Department, Coimbatore and the second respondent is only the hereditary trustee. The Executive Officer appointed to the temple had been acting contrary to the interest of the said temple and contrary to the provisions of the Act. In terms of Section 55(1) of the Act, the trustee is competent to appoint archaka or servants of the temple.
19. It has been further admitted that a vacancy had arisen for appointment of poosari in the temple and applications were invited from the poosaris by following the procedure prescribed and an interview was conducted in the presence of all the participants. It is further contended that the archakas and other ulthurai servants are selected and appointed by the Trustee and only thereafter the Executive Officer of the temple could exercise control over them.
20. According to the second respondent, the appointment of Ulthurai Servants like the petitioner lies within the power of hereditary trustee as provided under Section 55 of the Act and if there is a violation or infringement
an appeal remedy has been provided for before the Joint Commissioner. It cannot be assumed that the appeal remedy is an absolute bar in filing of the present writ petition. It is also contended that Section 23 of the Act is a power of genera] superintendence and such power has to be exercised by the Commissioner in the administration of religious institution but not to have any control over the indoor servants of the temple which purely lies with the Trust Board. The respondents further claimed that the writ miscellaneous petition be dismissed.
21. The fact that applications were invited and that the writ petitioner was also one of the candidates is not in dispute. The further fact that the selection was conducted by a duly constituted Selection Committee and the writ petitioner had been selected to hold the post of Poosari of the temple is not disputed. However, no orders of appointment have been issued by any of the respondents until now and some reference made to the State Government by the other respondents is the reason by which the petitioner is sought to be dislodged and denied of a valuable right of getting employment. The petitioner had taken all the effort to acquire the qualifications for the post, performed well before the Selection Committee and in fact he had been selected. This is admitted by all.
22. One Jothimani has taken out W.M.P.No.7812 of 1999 to implead himself in the writ petition claiming that he was actually taken as assistant Poosari by the former Poosari Thangavel till his retirement. This Jothimani also claims that he has got sufficient experience, and qualifications to perform poojas in the temple. According to him the poojas in the temple are not covered by any Agama and customary poojas only are being performed by the Poosaries.
23. After retirement of Thangavel, according to Jothimani, he has been asked to hold the post of poosari an additional charge, that he had also submitted application for the post of Poosari when applications were invited, that he was also interviewed on 13.5.1998, that during the interview, the Executive Officer and Hereditary trustee spoke appreciative of the petitioner’s service and did not even subject him to any serious questioning in the said interview and he was made to believe that he stands in a better position than the other contestants.
24. According to Jothimani, the very application of the writ petitioner had been rejected on the earlier occasion by the hereditary trustee on the ground that he had been dragging the temple to various Courts and acting against the interest of the temple and there is no justification to change the said view at this point of time with respect to the claims of the writ petitioner.
25. According to Jothimani, the Executive Officer and the hereditary trustee have committed a grave blunder in accepting the testimonials produced by the writ petitioner, and he also asserts that he had been working as Additional Poosari and not as a Pracharkar.
26. Jothimani also claims that he had been assisting the Writ petitioner’s father in performing the poojas right through and the service of a Prachakar
and Ulthurai service is different and distinct. On coming to know that the selection of the writ petitioner had not been approved by the Commissioner and the present writ petition pending the 3rd respondent Jothimani claims that he is entitled to be appointed as Poosari.
27. Before taking up the point for consideration, it is essential to refer to the relevant statutory provisions of the Act.
28. Section 55 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, hereinafter referred to ‘the Act’ for convenience provides that the vacancies whether permanent or temporary among the office holders or servants of a religious institution shall be filled up by the trustee in
all cases.
29. Explanation to sub- section (1) of Section 55 provides that the expression “office holders” or servants shall include Archakas and pujaris. Sub-section (2) of Section 55 provides that no person shall be entitled to appointment to any vacancy referred to in sub-section (1) merely on the ground that he is next in the line of succession to the last holder of the office.
30. Sub-section (4) of Section 55 provides that any person aggrieved by an order of the trustee under sub-section (1) may within one month from the date of the receipt of the order by him prefer an appeal against such order to the Joint Commissioner of Deputy Commissioner as the case may be.
31. On a consideration of Section 55 of the Act, it is clear that the Trustee can proceed to make appointment under Section 55 of the Act and he is the competent authority to appoint. It is also clear that the Trustee is not competent to make appointment on the sole ground that the candidate is in the next line of succession to the last holder of office.
32. Section 58 of the Act provides for fixing of standard scale of expenditure and it provides that the trustee of a religious institution can make an application for fixing the thittam or scale of expenditure in the institution and the amounts which should be allotted to the various objects connected with such institution or the proportions in which the income or other property of the institution may be applied to such object.
33. The powers of the Trustee is subject to prior approval of the thittam or scale of expenditure, which would be the position in case for the first time a servant or an office holder is sought to be appointed, which includes Archakas or poojaris. In the present case a vacancy arose in the permanent post of Archaka and as such there is no requirement to get the a fresh or prior approval or sanction under Section 58 of the Act.
34. Section 58 of the Act was the subject matter of consideration before the Apex Court in E.R.J.Swami v. State of Tamil Nadu, . While considering Section 55 of the Act and challenge made to the amendment made under Sec.55(2) of the Act as well as the powers of control under Section 27 of the Act, the Apex Court held thus:-
“7. The trustee, so far as the amended Section 55 went, was authorised to appoint any body as an Archaka in any temple whether Saivite or Vaishnavite as long as he possessed a fitness certificate from one of the institutions referred to in rule 12. Rule 12 was a rule made by the Government under the Principal Act. That rule is always capable of being varied or changed. It was also open to the Government to make no rule at all or to prescribe a fitness certificate issued by an institution which did not teach the Agamas or traditional rituals. The result would, therefore, be that any person, whether he is Saivite or Vaishnavite or not, or whether he is proficient in the rituals appropriate to the temple or not, would be eligible for appointment as an Archaka and the trustees discretion in appointing the Archaka without reference to personal and other qualifications of the Archaka would be unbridled.”
35. Hence it is clear that the trustee is the competent authority and he
has got the power to appoint Archaka subject to the condition that the
Archakas so appointed shall possess the qualifications as provided in Rule 12
of the Tamil Nadu Hindu Religious Institutions (Officers and Servants)
Service Rules.
36. Rule 12 provides that every “Ulthurai Servant” whether hereditary or non-hereditary whose duty is to perform poojas and recite mantras, vedas, prabandams, thevarams and other invocations shall, before succeeding or appointment to an office obtain a certificate of fitness for performing his office, from the head of an institution imparting instructions in agamas and ritualistic matters and recognised by the Commissioner in this respect by a general or special order.
37. Rule 5 prescribes the age qualifications. Rule 6 prescribes the disqualifications such as conviction by a criminal court for an offence involving moral turpitude or person who has been removed or dismissed from service in any religious institution local authority, statutory body or Government shall not be allowed to hold office in any religious institution. Rule 4 provides for production of physical fitness certificate.
38. It is clear that on a consideration of the said statutory rule, on the facts of the case it cannot be held that the writ petitioner who had been selected by the Trustee is not eligible to hold the post of Archaka.
39. Section 27 of the Act provides that the Trustee of a religious institution shall be bound to obey all lawful orders issued under the provisions of the Act by the Government or Commissioner or the Deputy Commissioner or Assistant Commissioner.
40. Section 27 of the Act oblige the trustee of an religious institution to comply with the lawful orders or directions issued under the provisions of the Act, order issued by the Commissioner, which he is not authorised under the Act is not binding on the trustee. Further when a specific provision has been provided in the Act no direction could be issued in exercise of power conferred under Section 27 to issue directions which runs counter to the specific provisions of the Act or the Rules framed thereunder.
41. Section 23 of the Act confers powers of general superintendence and control on the Commissioner, which power of superintendence and control shall include the power to pass any order which may be deemed necessary to ensure that the temple is properly administered.
42. Even under Section 23 also, the power of superintendence could be exercised and the Commissioner has got the powers of control and pass orders which may be deemed necessary to ensure that the temples and endowments are properly administered. As such under Section 23 also the Commissioner cannot issue directions in contravention of any of the provisions of the Act nor the Commissioner could claim powers to issue directions in respect of the matters for which specific provision is made in the Act itself. At any rate any direction or control or supervision or exercise of power under Section 23 or 23 of the Act by the Commissioner would be subject to other provisions of the Act.
43. The Commissioner has over all control over the actions of the Trust Board and it is not as if prior permission of the Commissioner is required to make an appointment when in the present case, under Section 55 of the Act, as per the sanctioned schedule of the establishment, the temple is entitled to appoint the Archaka. There is no controversy that the post with respect to which action has been taken to fill up falls within the schedule of establishment approved by the Commissioner and such appointment need not be sent to the Commissioner for approval. In fact the very same view has been expressed Kanagaraj.J as he then was in K.S.Rajashanmugavel, Sri Marimmal Temple, Samayapuram and others v. The Commissioner H.R. & C.E. W.P.No.2967 to 2972 of 1996 dated 21.8.1996.
44. This decision of Kanagaraj.J squarely applies to the facts of the present case. As such there is no warrant or requirement or justification for the Trustee to secure prior approval of the Commissioner as the appointment proposed is in respect of vacant post, which has been approved and falling well within the schedule of establishment. In fact the post fell vacant consequent to the retirement of a permanent incumbent and as such there is no requirement at all to apply once again under Section 55 of the Act nor there is any requirement for the petitioner to comply with Rule 10 or Rule 14 or the Rules framed under section 116(2) (xxiii) of the Act, once again.
45. I am in respectful agreement with Kanagaraj, J. wherein the learned Judge held thus:-
“Mr.G.Sukumaran, learned counsel for the first respondent has taken me through the relating provisions of the Act to show that the Commissioner has overall control over the actions of the Trust Board. In my opinion, it is not necessary to go into the other provisions of the Act to find out whether the commissioner has over all control over the actions of the Trustees. It appears to me, if Rules 10 and 14 of the Rules framed under Section 116(2) (xxiii) had been complied with and if the Trustees had made appointments thereafter under
Section 55 of the Act, such appointments need not be sent to the approval of the Commissioner.”
46. It may be that the Commissioner has got revisional jurisdiction for which he may exercise either suo moto or at the instance of an aggrieved party and such power could be exercised only after appointment.
47. It is contended by the learned Special Government Pleader that a direction could well be issued by the Commissioner either under Section 27 or under Section 23 of the Act directing the hereditary trustee to seek prior approval for appointment. When Section 55 of the Act confers powers on the Trustee, in exercise of power conferred either under Section 27 or under any other provision no direction could be issued by the Commissioner nor he could take away the power under Section 55 of the Act nor the State Government could also issue such direction. Therefore, the circular of the Commissioner, if any in so far as it directs the Trustee to secure prior approval is without authority, inoperative and has no application to the present case.
48. As already pointed out the very provisions of the Act has been upheld by the Apex Court in E.R.J.Swami v. State of Tamil Nadu, wherein it has been held that the trustee is authorised to appoint anybody as Archaka in any temple so long as the appointee possesses the qualification and fitness certificate and this right cannot be interfered.
49. In the present case, it is not the contention of the respondent that the appointee is not qualified or not eligible for appointment, if the trustee appoints a person, who is ineligible or who is not capable of discharging the functions of Archaka, then it will be open to the Commissioner to exercise the powers of revision and set aside such illegal orders. This would not mean that the trustee should obtain or secure prior permission for the appointment of Archaka as in the present case and hence the proceedings of the respondent in this respect cannot be sustained.
50. In terms of Section 55 as well as 56 of the Act, it is the Trustee who is the competent person either to appoint or to take disciplinary action against an Archaka.
51. In the result, in view of the pronouncement of the Apex Court, the impugned proceedings of the first respondent dated 17.11.1998 is quashed. The writ petition is allowed and a mandamus is issued directing the second respondent to appoint the petitioner as Archaka in Arulmigu Vanabadrakaliamman Temple, Thekkampatti within one month from today and issue necessary orders.
52. The writ petition is allowed as prayed for. The parties shall bear their respective costs in this Writ Petition. Consequently, W.M.P.No.30276 of 1998 is dismissed.