Karnataka High Court
Vasantha Devadiga vs State Of Karnataka on 25 October, 2013
Author: A.S.Bopanna
Bench: A.S. Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF OCTOBER 2013
BEFORE
THE HON'BLE MR. JUSTICE A.S. BOPANNA
WRIT PETITION NO.4490/2010 (GM-R/C)
BETWEEN:
VASANTHA DEVADIGA
S/O MAHABALA DEVADIGA
AGED ABOUT 42 YEARS
R/A DEVIPRASAD
ASHWATAPURA POST
MANGALORE 574266
... PETITIONER
(BY SRI.M. NAGA PRASANNA FOR P S RAJAGOPAL
ASSOCIATES, ADVOCATES)
AND
1. STATE OF KARNATAKA
BY ITS PRINCIPAL SECRETARY TO GOVERNMENT
REVENUE DEPARTMENT (HINDU RELIGIOUS
& CHARITABLE ENDOWMENTS)
M.S.BUILDING, DR.AMBEDKAR VEEDHI
BANGALORE 560001
2. COMMISSIONER FOR HINDU RELIGIOUS &
CHARITABLE ENDOWMENTS
MAHADESHWARA BHAVAN
T.S.P.ROAD, BANGALORE 560018
2
3. SREE DURGA PARAMESWARI TEMPLE
KATEEL 574148, D.K.DISTRICT
REP BY ITS ADMINISTRATOR
... RESPONDENTS
(BY SRI VIJAYAKUMAR A. PATIL, HCGP FOR R1 AND
R2;R3-SERVED)
THIS W.P. IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR
ENTIRE RECORDS LEADING TO THE OFFICIAL
MEMORANDUM DT. 22.4.2008 AND COMMUNICATION
DT. 12.11.2009 AND QUASH OFFICIAL MEMORANDUM
DT. 22.4.2008 VIDE ANX-C IN SO FAR AS IT
CONCERNS THE PETITIONER AND COMMUNICATION
DT. 12.11.2009 VIDE ANX-D BOTH ISSUED BY THE R2
AND DIRECT THE R2 TO APPROVE THE PROPOSAL
SUBMITTED BY THE R3/ADMINISTRATOR FOR
APPOINTMENT OF THE PETITIONER AS DHOLKIWALA
ON PERMANENT BASIS IN THE R3 TEMPLE
FORTHWITH.
THIS WRIT PETITION COMING ON FOR HEARING
THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER
The petitioner is before this Court assailing the official memorandum dated 22.4.2008(Annexure-"C") insofar as it relates to the petitioner. Mandamus is also sought to direct the second respondent to approve the 3 proposal submitted by the third respondent- Administrator for appointment of the petitioner as 'Dholkiwala' on permanent basis in the third respondent- temple.
2. The brief facts of the case are that the petitioner is working as a 'Dholkiwala' in the third respondent-temple. He had been initially appointed on a temporary basis and presently he is claiming that he is entitled for appointment on permanent basis. The fact that several of the employees, who were on temporary basis, were thereafter employed on permanent basis in the third respondent-temple on coming into force of the New Act is not in dispute.
3. The only question for consideration herein is as to "Whether the nature of the work performed by the petitioner is to be considered as the work of an outdoor temple servant or an indoor temple servant?" 4
4. The said issue arises for consideration since the maximum age limit for appointment to the said two categories is different. In this regard, Rule 5 of the Karnataka Hindu Religious Institutions and Charitable Endowments Rules, 2002 provides with regard to two categories of employees. Insofar as the age requirement, the same is provided under Rule 6 which provides that in either case the minimum age that the temple servant should have attained for securing appointment is 18 years and insofar as the indoor temple servants, the maximum age enabling appointment is 40 years. In the instant case, the petitioner claims that he is an indoor temple servant and therefore, his employment could be made permanent before he attains the age of 40 years. On the other hand, the maximum age prescribed enabling appointment for outdoor temple servants is 33 years. If the petitioner is considered as an outdoor temple servant he would be barred by the maximum age provided for appointment. It is in that circumstance, the 5 impugned Official Memorandum has been issued by the respondents by considering him as outdoor temple servant. Since no other aspect is required for consideration, the consideration in the instant petition is limited only to the conclusion as to whether the 'Dholkiwala' should be considered as an indoor temple servant or as an outdoor temple servant.
5. The respondents on taking note of the classification of different posts contained in Rule 5(2) have come to the conclusion that the work of 'Dholkiwala' not being stipulated therein, he has to be considered as an outdoor temple servant. In order to properly construe this aspect of the matter it would be appropriate to extract Rule 5 of the Rules, which reads as hereunder:-
"APPOINTMENT OF ARCHAKAS AND TEMPLE SERVANTS: 5. CLASSIFICATION OF TEMPLE SERVANTS.-(1)Temple servants are classified into two categories namely:-
(a)Indoor temple servants 6
(b)Outdoor temple servants.
(2)The Archaka, Agamika, Paricharaks, Upadivantha, paachaka, sthanika, joisa, sripada, srigandha, kattige and sevakaries and also the persons appointed for recitation of Mantras, Vedas, Prabhandas, Puranas and Jyothishyas whose duties are mainly for the performance of rendering assistance in the performance of poojas and rituals shall be indoor temple servants.
(3)The parupathegar, peshkar, bill collector, clerk, typist and other persons employed to perform various duties in the temple excluding the Government servants deputed from the State Government shall be outdoor temple servants."
6. Rules 5(1)(a) and (b) refer to the indoor and outdoor temple servants while sub-rule(2) would refer to certain categories of temple servants to be indoor servants while sub-rule (3) refers to other categories of servants who are indicated therein as outdoor temple servants. At the outset it is to be noticed that 7 'Dholkiwala' is not one of the categories indicated in either of the said sub-Rules. Hence, it would be necessary for this Court to consider in which of the sub- rules the 'Dholkiwala' is to be construed keeping in view the nature of work that is performed.
7. In order to consider this aspect of the matter, one of the documents which would aid the Court is at Annexure-"A" to the petition where different categories of employees and nature of duties and their remuneration as well as their other rights have been indicated. 'Dholkiwala' is one of the categories indicated therein and the nature of duties has been described thus - "when pooja is performed the dholkiwala is required to perform his activity and a share in the Archanaseva is also provided to the dholkiwalas". If this aspect of the matter is kept in view and Sub-Rule(2) of the Rule 5 is perused closely, it is seen that in respect of the class of temple servants indicated therein, the further duties indicated is 8 for rendering assistance in the performance of poojas and rituals and in that context they have been considered as indoor temple servants. If this aspect of the matter is kept in perspective, it is clear that the 'Dholkiwala' has also to perform this function of assistance when the pooja is performed and out of Archanaseva, a share is provided to the 'Dholkiwala" and in that context, if the ejusdem generis principle is applied certainly the "Dholkiwala" would also have to be considered as one of the categories of the servants who are required to perform their duties in aid of the poojas performed by the Archaks similar to that of the other category of servants specified in Sub-rule(2).
8. Further, in order to consider this aspect of the matter and remove all doubts, a reference to Sub-Rule(3) would indicate that the category of temple servants indicated therein as outdoor temple servants are mainly persons who have nothing to do with the performance of 9 the pooja or the activities related to the sevas being performed in the temple but functions are clerical and supervisory. Therefore, if these aspects of the matter are kept in view certainly 'Dholkiwala' cannot be classified as outdoor temple servant as has been done by the respondents through their communication dated 12.11.2009. Further, what is also to be noticed is that the communication issued by the authority is based on the legal opinion and not with reference to any particular custom, usage or rules relating to the temple. In that view of the matter, the official memorandum dated 22.4.2008 whereunder the case of the petitioner for being appointed as a permanent employee has not been considered only on that basis would not be sustainable.
9. Accordingly, the communication dated 24.2.2008 insofar as it relates to the petitioner is quashed. The respondents are directed to consider the case of the petitioner keeping in view that he should be 10 classified as an indoor temple servant and on taking note of the age of the petitioner as on the date of appointment relevant to the indoor temple servants, shall pass fresh orders in this regard.
10. In terms of the above, the petition stands disposed of.
Sd/-
JUDGE *alb/-.