BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/01/2011 CORAM THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR AND THE HONOURABLE MR.JUSTICE R.SUBBIAH Writ Petition (MD) No.14305 of 2010 M.P(MD)Nos.1, 2 & 3 of 2010 R. Thangapandian ... Petitioner Vs. 1. The Commissioner of Hindu Religious and Charitable Endowment Board, The Commissioner Office, Chennai. 2. The Joint Commissioner/Executive Officer, Arulmigu Thandayuthapani Swamy Thirukovil, Palani, Dindigul District. .. Respondents This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus calling for the records in connection with the impugned Advertisement issued by the second respondent published in the Tamil Daily Newspaper Dinakaran dated 24.9.2010 in Advertisement No.tp.nt.M.vz;.114/ xg;ge;jg;gs;sp nr.k.njh.m/2010, ehs;.24.09.2010 Dindigul being the vacancies for Assistant Civil Engineer, etc., respectively and quash the same as illegal, arbitrary, unconstitutional and consequently direct the first respondent to earmark the exact vacancies for SC and ST community and to be filled up the same in a fair and transparent manner and also fill up the existing vacancies by communal roaster within the time limit that may be stipulated by this Court. !For Petitioner ... Mr.A.D.Ganeshmoorthy ^For 1st Respondent ... Mr.M.Rajarajan for Mr.K.M.Vijayakumar For 2nd Respondent ... Mr.M.Venkatachalapathy Senior Counsel for Mr.R.Devaraj :JUDGMENT
N.PAUL VASANTHAKUMAR, J.
By consent of the parties the writ petition is taken up for final
disposal.
2. Petitioner has filed this writ petition challenging the
advertisement dated 24.9.2010 issued by the second respondent inviting
applications to fill up various posts and to declare the same as illegal,
unconstitutional and consequently direct the first respondent to earmark the
exact vacancies for SC & ST community and fill up the same in a fair and
transparent manner by following communal roaster within a given time.
3. According to the petitioner, the impugned advertisement was issued
calling for applications to fill up 77 posts in 23 categories. In the said
selection no provision is made for reservation of posts for candidates belonging
to SC & ST community. Aggrieved over the alleged rights of the SC & ST
community people, the petitioner has chosen to file the writ petition as a
Public Interest Litigation. The petitioner also states that no reservation is
also made for BC and MBC community candidates. It is also stated in the
affidavit that condition No.11, which empowers the second respondent to reject
any application without assigning any reason, is unjust and arbitrary. The
action of the second respondent in not reserving seats for the economically and
socially depressed classes of persons is in violation of Articles 14, 16(4), 21,
46 and 335 of the Constitution of India, particularly when the second respondent
has invited applications for various posts in Palani Arulmigu Thandayuthapani
Swamy Thirukovil, which is under the control of the first respondent governed by
the Hindu Religious and Charitable Endowment Act, 1959 and the Rules framed
thereunder.
4. The second respondent has opposed this writ petition by filing
counter affidavit by contending that the writ petition filed by way of public
interest litigation to reserve posts for SC & ST candidates for selection to
various posts is not maintainable as the issue pertains to service matter. On
merits it is stated that neither the HR & CE Act, 1959, nor the service rules
framed thereunder viz., Tamil Nadu Hindu Religious Institutions (Officers and
Servants) Service Rules, 1964, which was amended by G.O.Ms.No.255 Tamil
Development, Religious Endowments and Information Department, dated 28.6.2010
mandates reservation of seats for SC & ST, BC and MBC candidates. It is also
stated therein that SC & ST candidates can also compete for all posts and their
claim will also be considered even though no specific reservation is made in the
advertisement.
5. The learned counsel appearing for the petitioner reiterated the
contentions raised in the affidavit and submitted that not reserving seats for
SC & ST candidates in the public temple of the second respondent is in violation
of the constitutional right guaranteed under Article 16(4) of the Constitution
of India and therefore the writ petition is maintainable, as the petitioner is
representing the weaker sections of the society and he is not claiming any
service right. The learned counsel also submitted that the action of the
respondents in not reserving seats, SC & ST candidates are affected and
individual persons are not in a position to come to this Court due to their
poverty and social backwardness.
6. The learned Senior Counsel appearing for the second respondent
submitted that even though Article 16(4) empowers the Government to reserve
seats to weaker sections of the society including SC & ST, insofar as the posts
to be filled up by the second respondent, no reservation is ordered by the State
Government either under the HR & CE Act, 1959 or under the Rules framed
thereunder, namely, the Tamil Nadu Hindu Religious Institutions (Officers and
Servants) Service Rules, 1964. The said rule nowhere stipulates any reservation
and in fact it only prohibits appointment of persons other than Hindu Religion
and without challenging the said rule or amendment of the rules issued by the
Government, the petitioner cannot challenge the impugned notification, which is
issued in accordance with the rules.
7. We have considered the rival submissions made by the learned counsel
appearing for the petitioner, learned counsel appearing for the first respondent
and the learned Senior Counsel appearing for the second respondent.
8, The point for consideration in this writ petition is whether the
writ petition is maintainable and whether the petitioner can demand reservation
for SC & ST candidates in the impugned notification issued by the second
respondent inviting applications for filling up 77 posts in 23 categories of
posts in Arulmigu Thandayuthapani Swamy Thirukovil, Palani.
9. The petitioner is challenging only the action of the respondents in
not reserving seats to the candidates belonging to SC & ST communities. Though
reservation is prayed for in the notified posts, its implication is to enforce
social justice. SC & ST communities people are belonging to socially and
economically weaker category and each one of the candidate aspiring for the
posts may not be in a position to approach this Court, hence the writ petition
cannot be held as not maintainable.
10. The learned counsel appearing for the petitioner as well as
respondents submitted that Arulmigu Thandayudhapani Swamy Temple, Palani is
coming within the purview of the HR & CE Act, 1959 and the respondents are
controlling its administration. For appointment of the Officers and Servants of
the temple and to its Institutions, the Tamil Nadu Hindu Religious Institutions
(Officers and Servants) Service Rules, 1964, was enacted which was amended
recently vide G.O.Ms.No.255 Tamil Development, Religious Endowments and
Information Department, dated 28.6.2010. The said rule was framed under sub-
section (2) of section 116 of the Tamil Nadu Hindu Religious & Charitable
Endowments Act, 1959. In the said rule, the following categories of employees
of the religious institutions are listed.
Senior Grade Temples - Outdoor Servants .. 83 categories Incorporated and unincorporated Devaswoms - Outdoor Servants .. 17 categories Technical staff .. 44 categories Medical Staff .. 14 categories Education staff .. 5 categories Senior Grade Temples - Ulthurai (Indoor) servants .. 75 categories Religious Institutions other than Senior Grade Temples both Outdoor and Indoor servants .. 17 categories Indoor servants .. 31 categories Archaka Training Institute .. 7 categories
Rule 3 states that every Officer or servant of a religious institution shall
profess the Hindu religion and shall cease to hold office as such officer or
servant when he ceases to profess that religion. Physical fitness, age and
certain grounds of disqualifications are mentioned in Rule 4, 5 and 6
respectively. No provision is made to reserve any post to any caste or
community. The said rule is a special rule applicable for appointment of
Officers and Servants in Hindu Religious Institutions. The State and
Subordinate Service Rules provides for reservation to several categories of
persons like BC, MBC, SC & ST as vertical reservation and reservation to women,
physically challenged, etc. However, the said rule states that it can be
applied only subject to the special rules. In the absence of providing
reservation in the special rules, the petitioner cannot blame the second
respondent for not reserving any seat for SC & ST candidates or to any other
category. Article 16(4) of the Constitution of India is an enabling provision
to the State Government to reserve posts.
11. Similar issue was considered by the Supreme Court in the decision
reported in (2010) 1 SCC 477 (Dr.Gulshan Prakash V. State of Haryana) in respect
of reservation of seats to post graduate medical course which was claimed under
Article 15(4) of the Constitution of India. The Supreme Court in the said
decision held that the Court cannot compel the Government/authorities to provide
for reservation for SC & ST candidates in the absence of any specific statutory
rule framed. In the said decision the Supreme Court held as follows:
“22. In Ajit Singh (II) v. State of Punjab ((1999) 7 SCC 209) a
Constitution Bench of this Court in para 28 has held that Article 16(4) is only
an enabling provision which reads as under:
“28. …. On the face of it, the above language in each of Articles 16(4) and
16(4-A) is in the nature of an enabling provision and it has been so held in
judgments rendered by Constitution Benches and in other cases right from 1963.”
25. …………………… the State Government is the competent
authority to decide the reservation in the State. The State Government did not
prescribe any reservation for SC/ST and Backward Classes, due to which it was
not included in the prospectus. They also clarified that the petitioners before
the High Court were on the wrong impression that the Government of Haryana has
already taken a decision to make a reservation in admission to MD/MS/PG diploma
and MDS courses for SC/ST category. It was clarified that the Government of
Haryana has never granted the benefit of reservation to SC/ST category in
admission to MD/MS/PG diploma and MDS courses.
27. Though, even at the postgraduate level, reservation for
SC/ST/Backward community is permissible, in view of the specific decision by the
State of Haryana not to have reservation for Scheduled Castes and Scheduled
Tribes at the postgraduate level, there cannot be any mandamus by this Court as
claimed by the appellants. ……………..
29. ……………….. As the State Government is competent to make
the reservation to a particular class or category, until it is decided by the
State, as being a policy matter, there cannot be any direction to provide
reservation at the PG level. ………..”
12. Applying the principle laid down in the said judgment to the facts
of this case and in the absence of any provision to reserve seats in the Special
Rules, we are of the view that the petitioner is not entitled to claim
reservation for SC & ST candidates in the notified vacancies. This Court cannot
compel the Government to reserve seats to SC & ST candidates. It is made clear
that this order will not stand in the way of the State Government in deciding
the issue of reservation by appropriately amending the Special Rules, bearing in
mind the provision contained in Article 16(4) of the Constitution of India.
The writ petition is dismissed with the above observations. No costs.
Connected miscellaneous petitions are also dismissed.
vr
To
1. The Commissioner of Hindu Religious and
Charitable Endowment Board, Commissioner Office,
Chennai.
2. The Joint Commissioner/Executive Officer,
Arulmigu Thandayuthapani Swamy Thirukovil,
Palani, Dindigul District.