Madras High Court
Periyanambi Narasimha Gopalan vs Secretary To Government on 5 April, 2023
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
W.P(MD)No.19286 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 01.12.2022
Pronounced on : 05.04.2023
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P(MD)No.19286 of 2019
and
W.M.P.(MD)No.15710 of 2019
Periyanambi Narasimha Gopalan ... Petitioner
Vs.
1.Secretary to Government,
Tourism, Culture and Religious Endowments Department,
Government of Tamil Nadu,
Secretariat, Chennai – 600 009.
2.The Commissioner,
HR & CE Department,
119, Uthamar Gandi Salai,
Nungambakkam,
Chennai – 600 034. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of
India, praying this Court to issue a Writ of Certiorarified Mandamus,
calling for the records of the Respondent No.1 in Government Order
(Nilai) No.91 dated 28.06.2019 and quash the same insofar as its denial
of equal pay for equal work on the basis of income derived from each
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W.P(MD)No.19286 of 2019
temple to archakas, Maniayam, Beshkar, Odhuvar, Tavil, Nadaswaram
and other temple staff and direct the respondents to fix a minimum/
living wage fro archakeas, Maniayam, Beshkar, Odhuvar, Tavil,
Nadaswaram and other temple staff and direct the respondents to fix a
minimum living wage for Archakas, Maniyam Beshkar, Odhuvar, Tavil,
Nadaswaram and other temple staff and revise the salary structure of
them on the basis of equal pay work within the time frame that may be
fixed by this Court.
For Petitioner : Mr.K.Gokul
For Respondents : Mr.Veerakathiravan,
Addl. Advocate General,
Assisted by Mr.J.Ashok,
Addl. Government Pleader.
ORDER
Heard the learned counsel on either side.
2.The writ petitioner is rendering service as an archakar in Arulmigu Sri Rajagopalaswamy Kulasekara Aalwar Thirukovil, Mannarkovil, Ambasamudram. Since the temple staff were being paid meagre salary, the petitioner filed W.P.(MD)No.22907 of 2017 for directing the respondents to fix their salary. In view of the passing of 2/14 https://www.mhc.tn.gov.in/judis W.P(MD)No.19286 of 2019 impugned G.O., it had become infructuous. By the impugned G.O.(Nilai)No.91, Tourism, Culture and Endowments Department, dated 28.06.2019, the Government has provided for refixing the pay scales of the staff working in various temples which come under the purview of the Tamil Nadu Hindu Religious and Charitable Endowments Act. Each temple is treated as a separate unit and the salary of the staff has been made dependent on the income derived by each temple and other parameters. Questioning the same, the present writ petition has been filed. The petitioner seeks revision of the salary structure of the temple staff. The learned counsel appearing for the petitioner reiterated all the contentions set out in the affidavit filed in support of the writ petition and called upon this Court to grant relief as prayed for.
3.The respondents have filed counter affidavit and the learned Additional Advocate General took me through its contents. The stand of the respondents is that it is for the concerned temple to send appropriate proposal for re-fixation of pay and based on such proposals, the Commissioner of Hindu Religious and Charitable Endowments would pass appropriate orders. The respondents questioned the locus standi of 3/14 https://www.mhc.tn.gov.in/judis W.P(MD)No.19286 of 2019 the petitioner to espouse the cause of all the archakar of the State. The temples coming under the department are classified on the basis of their assessable income. Each temple is a separate legal entity having their on administration, income and expenditure and set of employees. The salary of a temple employee can be paid only out of the income of the concerned temple. When the temples are classified as senior grade temple and non-senior grade temples with further sub categories and listed and non-listed, all of them cannot be grouped under one umbrella. Taking note of the financial difficulties faced by certain temples, Temple Servants Welfare Funds has been created and salaries are paid out of it. A careful reading of the statutory scheme would indicate that the petitioner's request is misconceived. Section 58 of the Act and the corresponding statutory rules do not envisage granting of the relief sought for in the writ petition. The invocation of doctrine equal pay for equal work is unjustified. When each temple is a separate legal entity having its own administrative set up, the present writ petition cannot be maintained. The petitioner must address the temple management and he could not have rushed to this Court. In any event, the impugned G.O. does not suffer from any illegality or arbitrariness. The learned 4/14 https://www.mhc.tn.gov.in/judis W.P(MD)No.19286 of 2019 Additional Advocate General relied on quite a few decisions and pressed for dismissal of the writ petition.
4.I carefully considered the rival contentions and went through the materials on record. In one sense, challenge to the G.O. has become infructuous. The Hon'ble Division Bench comprising their Lordships the Hon'ble Mr.Justice R.Mahadevan and the Hon'ble Mr.Justice P.D.Audikesavalu in a magnum opus of a decision vide order dated 07.06.2021 in Suo Motu W.P.No.574 of 2015 etc had held as follows:-
“STAFF SALARY, BENEFITS, TRANSFER ETC (51) The salary and other service and retirement benefits of all the staff of the temple including that of the archakas and oduvars must be fixed as per the provisions of the Minimum Wages Act and on par with the Government servant.
(52) The terminal benefits of the retired staff in the temples under the HR&CE Act must be settled within 30 days from the date of their retirement. A list of cases where terminal benefits have not been settled must be filed before this court within a period of eight (8) weeks.” 5/14 https://www.mhc.tn.gov.in/judis W.P(MD)No.19286 of 2019
5.The learned counsel for the petitioner stated that the order passed by the Hon'ble Division Bench has not been implemented for the temple in which the petitioner is working as archakar. It is open to the petitioner to move the Hon'ble Division Bench by filing a petition for contempt or in any other manner for enforcement of the order.
6.In my view, it is unnecessary to go into the issue if each temple is a separate legal entity by itself. The moot question is the salary payable to the staff of Arulmigu Sri Rajagopalaswamy Kulasekara Aalwar Thirukovil, Mannarkovil. The petitioner was getting a monthly salary of Rs.750/- in the year 2017. It was enhanced to Rs.2984/- per month when this writ petition was filed. The picture painted by the writ petitioner in his representation dated 01.08.2019 is truly pathetic. It is impossible to lead a decent family life with what is being provided to the temple staff.
7.There are two courses of action open to the State. It can believe in leaving things to the market. Or it can assume charge and regulate the affairs. If the State adopts the latter course of action, then it must adhere to the principles of fairness and reasonableness. Temples are an integral 6/14 https://www.mhc.tn.gov.in/judis W.P(MD)No.19286 of 2019 part of our culture. They dot the landscape from Kashmir to Kanyakumari. In Tamilnadu there are thousands of temples. There are many which are ancient. Since they have architectural and cultural value, they have to be preserved and maintained as such. This is possible only through the temple staff. Lands had been endowed for temples. But the temple administration is regulated by the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959. No aspect is left untouched. If the temples have been left to be managed by the local society and its people, then it is a different matter altogether. That is not the case. The State has appointed Executive Officers for the petitioner's temple. When the State has assumed regulatory responsibility for all the public temples in Tamilnadu, it cannot wash away its consequential obligations towards the staff working in each temple.
8.Article 39 of the Constitution mandates that the State shall direct its policy towards securing that the citizens, men and women equally have the right to an adequate means of livelihood. Article 43 is as follows:-
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9.The Minimum Wages Act, 1948 provides for fixing minimum rates of wages in certain employments. Even a private employer covered by the provisions of the said Act is obliged to pay minimum wages to the persons employed by him. The Hon'ble Apex Court has held that the financial difficulties faced by an establishment will not afford excuse from complying with the statutory obligations to pay minimum wages. If even a private employer has such an obligation, the State having brought the petitioner's temple under its supervision and control cannot be heard to say that the salary payable to the petitioner will depend on the income earned by the temple. Temples are public institutions. By maintaining the customary practices of the temple, the petitioner and the other temple 8/14 https://www.mhc.tn.gov.in/judis W.P(MD)No.19286 of 2019 staff discharge public functions. They have to be paid proper salary for the work they do. It is unreasonable to tell the temple staff that since their establishment is starved of funds, they have to remain content with the pittance they receive. That would be a clear breach of the constitutional obligations set out in Article 14 r/w Article 43.
10.The Hon'ble High Court of Madras in the decision reported in 2001 (1) MLJ 508 (Government of Tamilnadu Vs. Thirukoil Paniyalargal Sangam) directed the Government of Tamilnadu to prepare a scheme for giving retirement benefits to certain left out servants of the temples of Tamilnadu. The observations and reasons found in the said judgment furnish a complete answer to the contentions of the respondents. The Hon'ble Judge (His Lordship Mr.Justice K.Sampath) held that it is the sole responsibility of the Government to mobilise the fund for meeting the financial commitment resulting from enforcing the Court direction in favour of the temple staff. It was also held that while policy decisions would normally not be subject to scrutiny by Courts under Article 226 of the Constitution of India, there are exceptions when the policy is arbitrary and violative of law and infringe the fundamental rights. In 9/14 https://www.mhc.tn.gov.in/judis W.P(MD)No.19286 of 2019 certain cases, the High Court can even direct the Executive to carryout the directive principles of State policy (1995 (5) SCC 730). The Hindu Religious and Charitable Endowments Act, 1959 is intended to tone up the administration and governance of the temples. Proper administration and governance would include payment of proper salaries to the temple staff. The petitioner and other temple staff have been rendering service for the proper upkeep and maintenance of Arulmigu Sri Rajagopalaswamy Kulasekara Aalwar Thirukovil, Mannarkovil. The temple is a huge thousand year old three tiered structure. Kulasekara Azhavaar spent his last years in the temple premises. This magnificent temple has to be preserved intact for posterity. That would be possible only if the present staff are paid well. Otherwise, there will be attrition of labour. The Government is duty bound to ensure that the staff are paid proper wages and retained on rolls. The impugned G.O. comes in the way of paying appropriate salary to the petitioner and other staff.
11.The learned Additional Advocate General relied on the decision reported 2012 (2) CTC 218 (Arulmigu Vaithianathaswamy Devasthanam Vs. HR & CE Department). No doubt, the statutory scheme as projected 10/14 https://www.mhc.tn.gov.in/judis W.P(MD)No.19286 of 2019 by the respondents has been directed to be followed. But in view of the recent order of the Hon'ble Division Bench in Suo Motu W.P.No.574 of 2015 etc, the aforesaid order of the learned Single Judge will not hold good. It must be noted that the Hon'ble Apex Court in the decision reported in (2017) 1 SCC 148 (State of Punjab Vs. Jagjit Singh) had invoked Article 7 of the International Covenant on Economic, Social and Cultural Rights 1966, which speaks of fair wages and equal remuneration for all workers for work of equal value which would ensure a decent living for themselves and their families. India is a signatory to the said covenant having ratified the same on 10.04.1979. Hence, there is no escape from the above obligation. The petitioner's right under Article 21 of the Constitution of India is at stake. Right to life includes right to livelihood. If a person is constrained to work for a salary that is far less than minimum wage, that is also a breach of Article 21 of the Constitution.
12.In view of the foregoing reasons, the impugned G.O. is declared inapplicable to Arulmigu Sri Rajagopalaswamy Kulasekara Aalwar Thirukovil, Mannarkovil. The respondents are directed to pass an 11/14 https://www.mhc.tn.gov.in/judis W.P(MD)No.19286 of 2019 appropriate order in favour of the petitioner and other staff of the said temple within a period of eight weeks from the date of receipt of a copy of this order setting out their pay and other allowances and other service benefits. Their pay shall be fixed by applying the principles that underlie the Minimum Wages Act. The petitioner and other temple staff will be entitled to arrears of pay from the date of filing of this writ petition. The writ petition stands allowed on these terms. No costs. Consequently, connected miscellaneous petition is closed.
05.04.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes/ No
ias
To:-
1.Secretary to Government,
Tourism, Culture and Religious Endowments Department, Government of Tamil Nadu, Secretariat, Chennai – 600 009.
2.The Commissioner, HR & CE Department, 119, Uthamar Gandi Salai, Nungambakkam, Chennai – 600 034.
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ias Pre-Delivery Order in W.P(MD)No.19286 of 2019 05.04.2023 14/14 https://www.mhc.tn.gov.in/judis