Madras High Court
C.Chellam vs The Commissioner on 24 November, 2011
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24/11/2011
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
Writ Petition (MD)No.5186 of 2005
and
WPMP(MD)No.5627 of 2005
1.C.Chellam
2.M.Nagapandian
3.N.Palanivel Murugan
4.M.Venkatachalapathy
5.R.Dharmarajan
R.Rathinakumar (Died)
7.S.Jeevanandam
8.R.Suresh
9.S.Mariammal
10.S.Kalimuthammal
11.B.Muniammal
12.Selvi, W/o.R.Radhakumar
13.Minor Dhanalakshmi, D/o.R.Radhakumar
14.Minor Muthmari, D/o.R.Radhakumar .. Petitioners
(Petitioners 12 to 14 were substituted as LRs of the deceased 6th
petitioner as per order, dated 12.07.2007,
in MP(MD)No.1 of 2009.
(Petitioners 13 & 14 are rep.by their mother and
Natural Guardian Petitioner No.12)
vs.
1.The Commissioner,
Hindu Religious & Charitable Endowment
Administration, Nungambakkam,
Chennai.
2.The Joint Commissioner,
Hindu Religious & Charitable Endowment,
Administration, Sivagangai.
3.The Executive Officer/Joint Commissioner,
Arulmigu Sri Ramanathaswamy Temple,
Rameswaram Devasthanam, Rameswaram,
Ramanathapuram District.
4.The Government of Tamilnadu,
rep.by its Secretary to Government,
Hindu Religious and Charitable
Endowment Department,
Fort. St.George, Chennai. .. Respondents
(R-4 impleaded as per order dated 17.12.2009 in
MP(MD)No.2/2009)
Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of certiorarified mandamus calling for the
records in Na.Ka.No.2614/99/I-1 on the file of 1st respondent, dated 04.06.2004,
quashing the same as illegal, incompetent and unjust and further directing the
respondents 1 to 3 not to apply G.O.No.257, dated 10.06.1998 and G.O.No.141,
dated 21.05.2004, to the petitioners and for consequential orders.
!For Petitioner ... Mr.C.Arulvadivel alias Sekar
^For Respondents ... Mr.M.Govindan,
1, 2 & 4 Addl.Govt. Pleader.
For Respondent-4 ... Ms.E.Udhaya for
Mr.G.R.Swaminathan
:ORDER
The petitioners are employees, engaged by Arulmighu Sri Ramanathaswamy Temple, Rameswaram Devasthanam at Rameswaram. In this writ petition, the petitioners have challenged the orders of the Commissioner of Hindu Religious & Charitable Endowment Administration, Chennai, dated 04.06.2004, and seeking for a further direction to respondents 1 to 3 not to apply G.O.No.257, Tamil Development, Culture and Hindu Religious Endowment Department, dated 10.06.1998 and G.O.No.141, Tamil Development, Culture and Hindu Religious Endowment Department, dated 21.05.2004.
2.The State Government, after considering the representations made by the temple employees, working under various temples coming under the Administrative Control of Hindu Religious and Charitable Endowment Department and after consulting the Commissioner, issued G.O.Ms.No.321, Commercial Tax and Hindu Religious Endowment Department, dated 29.05.1990. Under the said G.O., the earlier scale of pay was sought to be revised and the Assistant Commissioners, Deputy Commissioners and Joint Commissioners, in-charge of various temples, were permitted to implement the scale of pay in respect of the employees employed in temples and the scale of pay has been notified in this G.O. Subsequently, the State Government issued further proceedings in the year 2004, by issuing G.O.Ms.No.141, Tamil Development, Culture and Hindu Religious Endowment Department, dated 21.05.2004, once again refixing the scale of pay and at that time, the various posts which eligible for revision are also set out, including both Ulthurai (indoor) and Velithurai (outdoor) employees engaged in temples. In the said G.O., it was stated that it will apply to only left out categories and for specific temples and it was stated that earlier G.O. will not be altered in respect of temples where it has been given effect to.
3.Subsequently, the Commissioner of Hindu Religious and Charitable Endowment Board, sent a Circular on 04.06.2004, enclosing a copy of the G.O. and instructed that the respective temples should get approval from local fund auditor and only after getting approval, appropriate fixation of scale of pay can be done and those who worked on the basis of the fixation of scale with effect from 01.07.1997, after 10 years of service and 20 years of service, will be given selection grade and special grade pay. Annexures 1 and 2 were also listed out to the said circular.
4.The petitioners have challenged the said circular on the ground that the respondents are not justified in altering salary and other emoluments, without giving any opportunity to the petitioners and the temple in which they are working draws substantial tourists and earns income over 10 crores and, therefore, the respondents cannot alter their pay or emoluments under the guise of implementing the impugned order. Therefore, they seek to set aside the said order.
5.When the writ petition came up for admission on 05.08.2005, this Court, while ordering notice, directed the respondents not to recover the amount, if any, already paid in excess of the present fixation. Subsequently, the matter came to be posted on several occasions and adjourned from time to time to enable the respondents to file counter affidavit. Accordingly, the 1st respondent has filed a counter affidavit, dated 19.05.2011. The 3rd respondent, Joint Commissioner/Executive Officer of the Temple, has also filed a counter affidavit dated Nil (2005). Though initially said affidavit was filed by the then Joint Commissioner by name J.R.Subramanian, the same was not attested and subsequently, another counter affidavit was filed, sworn to by the Superintendent of Temple, dated 17.06.2008. It is rather unfortunate that affidavits are being filed, without attestation or filling-up the gaps, as a result the purpose of filing affidavit is lost by such filing.
6.When the matter was finally came up for hearing on 14.07.2011 before Justice V.K.Sharma. When the learned Judge asked about the translated copies of documents to be filed, the learned counsel for the petitioner took time for filing such translated copies. Hence the matter was adjourned to 25.07.2011. On 25.07.2011, as there was no representation on the side of the petitioner and also since no translated documents were filed, the following endorsement has been in the court papers:
"Inspite of order, dated 14.07.2011, requesting the learned counsel for the petitioner to place on record the translated copies of the Tamil document, the order has not been complied with nor anybody present on behalf of the petitioner. Adjourned to 10.08.2011. Show under the caption for dismissal."
It is rather paining to note that the learned counsel, who has given assurance to the learned Judge that he would comply with the Constitutional requirements and took adjournment, had suddenly disappeared on the posted date, thereby disabling this Court to deliver judgment on such matters.
7.Today, when the matter came up, heard the learned counsel for the parties. The first question to be decided is whether the petitioners, who are employees of the 3rd respondent temple, are entitled to file the writ petition seeking for a particular scale of pay, based upon Government Orders, without the Trust or the Trust Board or the Devasthanam extending such scale of pay to the petitioners who are working as Watchmen and Gardener in the Temple Gardens and the Temple Estate. The Circular, which is sought to be challenged, is a communication sent by the Commissioner to the various Joint Commissioners, Deputy Commissioner and Assistant Commissioners administering various temples coming under the control of Hindu Religious and Charitable Endowment Department.
8.Under Section 57 of the Tamil Nadu Hindu Religious and Charitable Endowment Act, notwithstanding the scheme, the trustee is entitled for fixing fees for the performance of any service, ritual or ceremony and also to determine what portion of such fees will be paid to the archakas or other office-holders or servants. This Court is not concerned with Section 57, as it relates to sharing of remuneration. To the present case, what is relevant is Section 58, where the department is entitled to fix and send proposals for fixing 'Dhittam' or scale of expenditure in respect of each temple and also as to how the temple income can be appropriated for the same and, therefore, it is open to the Commissioner to give a general circular as to the nature of salary to be paid to the employees and the subordinates, who are working under the control of the department. In the absence of any law contrary, the contention of the petitioners that they are entitled to get only scale of pay, which was fixed as per the earlier Government Order, cannot be accepted.
9.In the counter affidavit filed by the first respondent, namely Commissioner, Hindu Religious and Charitable Endowment Department, it is stated that the services of the petitioners are governed by Section 116(2)(xxiii) of the Tamil Nadu Hindu Religious and Charitable Endowment Act and the rules framed thereunder, known as 'Tamil Nadu Hindu Religious Institutions (Officers and Servants) Services Rules, 1964. In paragraph No.6 of the counter affidavit filed by the 1st respondent, it is averred as follows:
"6.It is submitted that the pay of the Officer and Servants of each Religious Institution is fixed as per the guidelines issued by the Government through various Government Orders from time to time. It has uniform application through out all the religious institutions in the State and no discrimination is made either on the basis of nature of work or income of the temple as alleged and claimed by the petitioners herein. It is submitted that under the statutory scheme, it is the Government which has the power to fix and revise the scale of pay. Admittedly, the higher pay fixed and paid by the 3rd respondent herein in the year 1997 is subject to revision and in accordance with the Government Order passed subsequently. Having once agreed for recovery, the petitioners' herein cannot complain that it is unjustified. In any case the petitioner should have fairly disclosed about the consent letters executed by nine of them voluntarily. The contention that the special rules will prevail over the subject Government Orders is untenable. In any case it is not open to the petitioners herein to insist that there should be a special pay scale fixed for the staff working in the 3rd Respondent temple. This is too fanciful to be accepted. It is submitted that all the temples coming under the Hindu Religious and Charitable Endowments Act, will have to be governed by applying by some uniform yardstick and it cannot be objected to by the petitioners herein. The respondents have rightly applied the Government Orders issued by the Government."
10.The temple management, the 3rd respondent, has also filed a counter affidavit and it is stated that it is not the Temple Board/Trust Board which alone can fix salary and it is also bound by the Scheme framed by the Government. Two petitioners, M/s.Chellam and Palanivel Murugan, have given consent letters for reduction of pay and the consequential fixation is based upon Expert Committee recommendation in respect of left out categories and insofar as the scale of pay of Nandavanam Paniyalargal is concerned, in paragraph 5, it was stated as follows:
"5. .... the petitioner's pay scale has been fixed for Nandhavana Paniyalar has been fixed at Rs.1500-50-2300-55-2630. While for Thoppukavalar, it has been fixed at 1750-50-2300-55-2850. Since the G.O. applies to all the temples, the respondents had no option, but to enforce the same."
11.In the light of the stand taken by the respondents and in view of the peculiar statutory provisions under which the petitioners are working, there is no case made out to set aside the impugned circular. Hence the writ petition stands dismissed. No costs. Connected miscellaneous petition is closed. However, by virtue of the interim order, dated 05.08.2005, if any amounts are paid allegedly in excess of their eligibility and since the interim order is in operation and no steps were taken to vacate the interim order and also the fact that the petitioners were not responsible for any excess payment, it is made clear that no recovery shall be made for the amount already paid.
gb To
1.The Commissioner, Hindu Religious & Charitable Endowment Administration, Nungambakkam, Chennai.
2.The Joint Commissioner, Hindu Religious & Charitable Endowment, Administration, Sivagangai.
3.The Executive Officer/Joint Commissioner, Arulmigu Sri Ramanathaswamy Temple, Rameswaram Devasthanam, Rameswaram, Ramanathapuram District.
4.The Government of Tamilnadu, rep.by its Secretary to Government, Hindu Religious and Charitable Endowment Department, Fort. St.George, Chennai.