S.J. Balaji and another vs The Commissioner, H.R. and C.E. Department, Chennai-34 and 2 others

The petitioner prays for the issue of a writ of mandamus to forbear respondents 1 and 2 herein from interfering with the implementation of the

resolution dated 25.7.2000 and 16.9.2000 passed by the petitioners herein as Board of Trustees of Sree Audhikesavaperumal and Sree

Bhashyakaraswamy temple, Sriperumbudur, Kancheepuram District, by the third respondent.

The dispute in this writ petition relates to the appointment of one G.N. Sampath, S.A.Srinivasa Narasimhan as Paricharakar Nos. 1 and 2 in Sri

Audi Kesava Perumal and Sree Bhashyakarar Swamy temple, Sriperumbudur, Kancheepuram District. There is no controversy over the fact that

the petitioners were appointed as Secular and Religious Trustee respectively by the order of the Commissioner, H.R. & C.E. Department dated

4.11.1998. Their contention is that G.N. Sampath was appointed as Paricharakar on 6.6.1992 by the then fit person who was managing the

temple. As regards the vacancy of the second post, they had taken steps to fill up the vacancy. Steps had been taken earlier by successive fit

persons repeatedly, but could not fill up the post as there was no response from any one. Therefore, the petitioners decided to fill up the post and

on 25.6.2000 a notice calling for application was published in the Notice Board of the temple. Two persons applied and an interview was

conducted on 25.7.2000. One S.A. Srinivasa Narasimhan was selected as Paricharakar No.2. On 25.7.2000 Trustees passed a resolution

recommending the appointment of the said person. The same was also communicated to the Commissioner on 5.8.2000 requesting approval of the

appointment.

The grievance of the petitioners/Trustees is that the first respondent without granting approval went on raising query as to whether prior

permission had been obtained from the Board. In spite of a detailed reply in the said context, that prior permission was not necessary in terms of

the provisions of Act 22 of 1959 and the various Rulings of this Court, the first respondent went on raising the very same question. Hence, the writ

petition.

Mr. Alagar, learned Senior Counsel for the petitioner refers to Section 55 of the Act which according to him entitles Trustees to appoint the

servants and staff of the temple and no prior approval was required. He also refers to the judgment of this court is Assistant Commr./Executive

Officer, Arulmigu Vana Badrakaliamman Temple v. T. Kumaresan and others, 2000 (2) L.W. 250. Learned Senior counsel further states that the

attitude on the part of the respondent is nothing short of Contempt of Court considering their conduct in deliberately disregarding and ignoring

judgment of this Court which had been brought to their notice. For the said proposition, learned Senior Counsel relies on the judgment of the

Supreme Court in Shri Baradakanta Mishra Ex-Commissioner of Endowments Vs. Shri Bhimsen Dixit, . In that case the Supreme Court held that

the Commissioner of H.R. & C.E. acts as a quasi judicial authority and is subject to the superintendence of the High Court and the decisions of the

High Court would be binding on him. It was further held that if the authority was deliberately avoiding to follow the decision by giving wrong and

incorrect reasons, it would clearly amount to disobedience and disregard of the court by acting in opposition to the authority and thereby bringing

administrative of law into confusion.

Learned Special Government Pleader appearing for the Commissioner states that the Commissioner had only called upon the petitioner to state

whether the Trustees had followed the normal recruitment rules properly by calling for applications etc. No applications had been invited and no

advertisement had also been issued. He would further state that the aggrieved parties have not come before the Court and the petitioners have no

case of action to file the writ petition.

He would further submit that there was no question of contempt and he would reply on the judgment of this Court in N. Arunachalam and 7

others Vs. The Avadi Municipality, . In that case, the learned judge has held that in respect of law of precedents, law laid down in each case

should be looked into in the context of that particular case and cannot be uniformly applied for all circumstances. Therefore, according to the

learned Special Government Pleader, by merely referring to an earlier judgment in this context the petitioner cannot plead that the respondents

were guilty of contempt.

Learned counsel, for the third respondent also raised the same objections as contended by the Special Government Pleader. It is further

contended that the appointments can be made only by the third respondent/the Executive Officer. When the Executive Officer was very much

available the Trustees cannot justifiably seek to exercise the power of appointment. Reference was also made to section 49-B and 57 of the Act

which will be dealt with later.

I have considered the submissions of both sides. The affidavit, counter affidavits and reply affidavits have raised several issues some of which

are unconnected with the issues which require to be decided in this writ petition. As such I am ignoring such of those submissions and the pleadings

which are not relevant for decision in this writ petition.

The only issue to be considered in this writ petition is as to whether any prior approval from the Commissioner was necessary before the

petitioners chose to select and appoint the Paricharakar in this case. A perusal of the impugned letter dated 29.9.2000, from the Commissioner,

shows that he has been insisting on prior approval for filling up the vacancy of Paricharakar No. 2. In another letter also dated 29.9.2000, the

Executive Officer has been asked to furnish details relating to the mode of appointment, approval etc.

The question whether the prior approval is necessary may be dealt with first and Section 55(1) of the Act is extracted below:

Appointment of office holders and servants in religious institutions:-

(1) 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.

In T. Kumaresan Vs. The Commissioner, Hindu Religious and Endowment Department, Nungambakkam High Road, Chennai - 34 and

another, E. Padmanabhan, J. held that in the case of the appointment of a poosari, the trustee was competent to make the appointment and there

was no necessity for any approval by the Commissioner. It was held that the Commissioner cannot insist for prior approval of the appointment of

the poosari in regular vacancy on permanent basis. The said judgment was confirmed by the Division Bench of this Court as reported in Assistant

Commr./Executive Officer, Arulmigu Vana Badrakaliamman Temple v. T, Kumaresan and others, 2000 (2) L.W. 250. The Division Bench held

that on a plain reading of Section 55 of the Act, the Trustees have the power to appoint such office holders and. insisting on prior approval by the

Administrative Officer, cannot be sustained. If the Trustees appoint disqualified persons who should not have been appointed then the

Commissioner can always exercise his power u/s 21 of the Act. When the Statute prescribes such a procedure for appointment, the Commissioner

cannot insist that Trustees should get prior approval before the making the appointment.

Therefore, it is clear that the petitioner being the Trustees are entitled to appoint the employees in question and the contention on the part of the

respondents that prior approval be obtained, cannot be accepted.

I am also unable to appreciate how Sections 49-B and 57 of the Act would apply to the disputes raised for consideration in this writ petition.

Section 49-B of the Act deals with power of the Executive Officer and Chairman not to implement the order or resolution of the trustee or Board

of Trustees in certain cases. The power available to the said authorities u/s 49-B is not called in question. The power u/s 55 available to the

Trustees to appoint employees does not become obliterated by the power vested on the Executive Officer u/s 49-B of the Act. Section 57 of the

Act deals with the power to fix fees for the services. The said provision also has nothing to do with the dispute on hand.

As regards the dispute that there was no proper advertisement etc., I feel that the respondents appear to be raising objection in a very

technical manner without any justifications or compelling need to raise the said objections. The circumstances under which selection and

appointments were made, had been dealt with in detail by the petitioners in their affidavit itself. In the affidavit, it is clearly stated that G.N.

Sampath was appointed in the year 1992 itself by the then Fit Person. As regards the second vacancy successive Fit Persons attempted to fill up

the vacancy on 11.5.1995, 7.1.1997 and 1.7.1998, without success. Notice calling for applications were published without any response.

Therefore, on 25.6.2000 notice calling for applications was published in the Notice Board of the temple. The Trustees have also stated that the

starting salary was very meager and only local residents would be interested in working as Paricharakars. Further only Thenkalai Srivaishnava

Brahmin can be appointed. No one from outside Sriperumbudur was likely to apply for and therefore, a notice was published in the Notice Board

of the temple. Only two individuals had applied for the post and after due selection by interview the said Srinivasa Narasimhan was appointed.

Therefore, I do not find any irregularity in the power of appointment which was exercised by the Trustees and there is no justification for raising

such objections without any purpose.

In the result, the writ petition is ordered as prayed for. No costs. Consequently connected W.M.P. is closed as unnecessary.