Madras High Court
S.J. Balaji And Another vs The Commissioner, H.R. & C.E. ... on 4 July, 2001
ORDER
1. 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.
2. 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.
3. 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.
4. 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 B. Mishra v. B. 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.
5. 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.
6. He would further submit that there was no question of contempt and he would reply on the judgment of this Court in Arunachalam, N. v. 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.
7. 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.
8. 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.
9. 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.
10. The question whether the prior approval is necessary may be dealt with first and Section 55(1) of the Act is extracted below:
"55. 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."
11. In Kumaresan T. v. The Commissioner H.R. & C.E., 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 under Section 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.
12. 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.
13. 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 under Section 49-B is not called in question. The power under Section 55 available to the Trustees to appoint employees does not become obliterated by the power vested on the Executive Officer under Section 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.
14. 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.
15. 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.
16. In the result, the writ petition is ordered as prayed for. No costs. Consequently connected W.M.P. is closed as unnecessary.