Andhra Pradesh High Court - Amravati
P. Uma Maheshwara Sastry, vs The State Of Andhra Pradesh on 5 October, 2021
Author: R. Raghunandan Rao
Bench: R. Raghunandan Rao
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
***
W.P.No.21761 of 2020
Between:
P.Uma Maheswara Sastry,
S/o.Late Venkateswarlu,
Age 60 years, Occ: Archaka of Sri Lakshmi Narayana Swamy
Mandiram, Gulabchand Street, One Town, Vijayawada
Adopted to Sri Durga Malleswara Swamy Devasthanam,
Vijayawada, Krishna District.
... Petitioner
And
$ 1. The State of Andhra Pradesh
Rep.by its Special Chief Secretary,
Revenue (Endowments) Department,
Secretariat, Velagapudi, Amaravathi,
Guntur District.
2. The Special Commissioner,
Endowments Department,
Gollapudi, Vijayawada,
Krishna District.
3. Sri Durga Malleswara Swamy Devasthanam,
Vijayawada, Krishna District,
Adoptee temple of Sri Lakshmi Narayanaswamy
Mandiram, Gulabchand street, One Town,
Vijayawada, Krishna District.
Rep.by its Executive Officer.
4. M.V.Suresh Babu,
S/o.M.Ranganayakulu,
Executive Officer of Sri Durga Malleswara Swamy Devasthanam,
Vijayawada, Krishna District.
... Respondents
Date of Judgment pronounced on : 05-10-2021
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
1. Whether Reporters of Local newspapers : Yes/No
May be allowed to see the judgments?
2. Whether the copies of judgment may be marked : Yes/No
to Law Reporters/Journals:
3. Whether the Lordship wishes to see the fair copy : Yes/No
Of the Judgment?
RRR,J
2 W.P.No.21761 of 2020
*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
* HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
+ W.P.No.21761 of 2020
% Dated: 05-10-2021
Between:
P.Uma Maheswara Sastry,
S/o.Late Venkateswarlu,
Age 60 years, Occ: Archaka of Sri Lakshmi Narayana Swamy
Mandiram, Gulabchand Street, One Town, Vijayawada
Adopted to Sri Durga Malleswara Swamy Devasthanam,
Vijayawada, Krishna District.
... Petitioner
And
$ 1. The State of Andhra Pradesh
Rep.by its Special Chief Secretary,
Revenue (Endowments) Department,
Secretariat, Velagapudi, Amaravathi,
Guntur District.
2. The Special Commissioner,
Endowments Department,
Gollapudi, Vijayawada,
Krishna District.
3. Sri Durga Malleswara Swamy Devasthanam,
Vijayawada, Krishna District,
Adoptee temple of Sri Lakshmi Narayanaswamy
Mandiram, Gulabchand street, One Town,
Vijayawada, Krishna District.
Rep.by its Executive Officer.
4. M.V.Suresh Babu,
S/o.M.Ranganayakulu,
Executive Officer of Sri Durga Malleswara Swamy Devasthanam,
Vijayawada, Krishna District.
... Respondents
! Counsel for petitioner : D.V.Sasidhar
^Counsel for Respondents 1 and 2 : G.P. for Endowments
^Counsel for Respondent No.3 and 4 : K.Madhava Reddy
RRR,J
3 W.P.No.21761 of 2020
<GIST :
>HEAD NOTE:
? Cases referred:
1
AIR 1978 SC 988
2.
(1975) 2 SCC page 22,
3
AIR 2007 SC page 168
4
(2017) 3 SCC page 362
5.
(2013) 5 SCC 470(2013) =3 SCC (Civ) 153 = 2013 SCC OnLine SC 143
RRR,J
4 W.P.No.21761 of 2020
THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO
WRIT PETITION No.21761 of 2020
ORDER:-
The petitioner is working as an Archaka in Sri Lakshmi Narayana Swamy Mandiram, Gulabchand Street, I town, Vijayawada. He is being paid a sum of Rs.12,700/- under various heads, as his monthly salary. Sri Lakshmi Narayana Swamy Mandiram was adopted, under the provisions of Section 145 of The Andhra Pradesh Charitable and Religious Institutions and Endowments Act, 1987 (for short „the 1987 Act‟) by the 3rd Respondent, Sri Durga Malleswara Swamy Devasthanam, Vijayawada. In view of the said adoption, the petitioner had made a representation to the 4th respondent, who is the executive officer of the 3rd Respondent, to pay him a salary of Rs.25,000/- per month on par with the other Archakas, who were serving in the 3rd Respondent. This claim of the petitioner was rejected by the 4th respondent in his proceedings Rc.No.F2/3508/18 dated 28.10.2020, on the ground that the said remuneration is not payable as per circular No. Rc.No.A1/1726091/118, dated 24.09.2018. Aggrieved by the said order of rejection, the Petitioner has approached this Court by way of the present Writ Petition.
2. It is the case of the petitioner that Sri Lakshmi Narayana Swamy Mandiram, where the petitioner is serving, was adopted by the 3rd respondent Devasthanam under Section 145 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short, the 1987 RRR,J 5 W.P.No.21761 of 2020 Act‟) and consequently, he would be entitled to the same pay as other Archakas serving in the 3rd respondent-temple by virtue of the deeming provision in Section 145(2) of the 1987 Act and on account of the judgment of the Hon‟ble Supreme Court in Jagjit Singh Vs. State of Punjab1, which mandated equal pay for equal work.
3. The 4th respondent, executive officer of the 3rd respondent temple, has filed a counter, in which he took the stand that Section 145(2) of the 1987 Act only provides for management of the adopted institution by the adoptee institution as a single entity but that could not mean that both the adopted institution and the adoptee institution have become one institution wherein the employees of both the institutions would be paid the same salaries and given same service conditions. It is further submitted by Sri K.Madhava Reddy, learned standing counsel appearing for the 3rd respondent that the Judgment of Jagjit Singh‟s case would apply only when the petitioner is to be treated as an employee of the 3 rd respondent temple and then he can claim equal pay for equal work done by other employees of the 3rd respondent-temple.
4. Sri K.Madhava Reddy, learned standing counsel for the 3rd respondent would rely upon the Judgments of the Hon‟ble Supreme Court in Khemka & Co. (Agencies) Pvt.Ltd Vs. State of Mahashtra 2, Paramjeet Singh Patheja Vs. ICDS Ltd,3 State of Karnataka Vs. State of Tamil Nadu and Ors.,4 to contend that the submissions of Sri D.V.Sasidhar, learned 1 AIR 1978 SC 988 2 (1975) 2 SCC page 22, 3 AIR 2007 SC page 168 4 (2017) 3 SCC page 362 RRR,J 6 W.P.No.21761 of 2020 counsel for the petitioner require to be rejected as a legal fiction or a deeming provision in Section 145(2) of the 1987 Act cannot be taken to have amalgamated the establishments of the adopted and adoptee temples into one unified establishment. Consideration of the Court:
5. The controversy in the present Writ petition is on the interpretation of section 145 of the 1987 Act which reads as follows:
Adoption or amalgamation of institutions and Endowments:-
(1) Where the Commissioner has reason to believe that any religion institution is not capable of maintaining out of its funds, he may, in the interest of proper management of administration, subject to such restrictions and conditions as he may deem fit, direct the amalgamation or as the case may be, the adoption of such religious institution by any other religious institution having similar objects and capable of managing such institution and there upon the trustee of the institution to which it is amalgamated or by which it is adopted shall maintain and administer such institution.
[Provided that the conditions to be satisfied for any such adoption or amalgamation shall be as may be prescribed.] (2) On such amalgamation or adoption the institutions shall be deemed to comprise a single institution and administered as if they were a single institution published under Section 6. (3) Where the institution so amalgamated or as the case may be adopted under sub-section (1), subsequently found to be capable of being managed by itself, the Commissioner may in the interest of proper management of administration, revoke the orders issued under sub-section (1), and there upon the institution shall manage its affairs independently out of its funds.
(4) An appeal shall lie to the Government against the orders passed by the Commissioner under sub-section (1) or sub- section (3).
6. Sri D.V. Sasidhar, contends that the words "shall be deemed to comprise a single institution as if they were a single institution" contained in Section 145 (2) create a legal fiction that both Sri Lakshmi Narayana Swamy Mandiram and the 3 rd RRR,J 7 W.P.No.21761 of 2020 Respondent are a single institution and the consequence of such a legal fiction is that the petitioner is entitled to be treated as an employee with the pay and service conditions given to the employees of the 3rd Respondent being given to the Petitioner and relies upon the following excerpt from the Judgment of the Hon‟ble Supreme Court in Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd.,5:
VI. "As if"--Meaning of
26. The expression "as if" is used to make one applicable in respect of the other. The words "as if" create a legal fiction. By it, when a person is "deemed to be" something, the only meaning possible is that, while in reality he is not that something, but for the purposes of the Act of legislature he is required to be treated that something, and not otherwise. It is a well-settled rule of interpretation that, in construing the scope of a legal fiction, it would be proper and even necessary to assume all those facts on the basis of which alone such fiction can operate. The words "as if" in fact show the distinction between two things and, such words must be used only for a limited purpose. They further show that a legal fiction must be limited to the purpose for which it was created. [Vide Radhakissen Chamria v. Durga Prosad Chamria [(1939-40) 67 IA 360 : (1940) 52 LW 647 : AIR 1940 PC 167] , CIT v. S. Teja Singh [AIR 1959 SC 352] , Ram Kishore Sen v. Union of India [AIR 1966 SC 644] , Sher Singh v. Union of India [(1984) 1 SCC 107 : AIR 1984 SC 200] , State of Maharashtra v. Laljit Rajshi Shah [(2000) 2 SCC 699 : 2000 SCC (Cri) 533 : AIR 2000 SC 937] , Paramjeet Singh Patheja v. ICDS Ltd. [(2006) 13 SCC 322 : AIR 2007 SC 168] (SCC p. 341, para 28) and CIT v. Willamson Financial Services [(2008) 2 SCC 202] .]
27. In East End Dwellings Co. Ltd. v. Finsbury Borough Council [1952 AC 109 : (1951) 2 All ER 587 (HL)] this Court approved the approach which stood adopted and followed persistently. It set out as under : (AC p. 133) "... The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or 5 (2013) 5 SCC 470(2013) =3 SCC (Civ) 153 = 2013 SCC OnLine SC 143 RRR,J 8 W.P.No.21761 of 2020 permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."
28. In Industrial Supplies (P) Ltd. v. Union of India [(1980) 4 SCC 341 : AIR 1980 SC 1858] this Court observed as follows :
(SCC p. 351, para 25) "25. It is now axiomatic that when a legal fiction is incorporated in a statute, the court has to ascertain for what purpose the fiction is created. After ascertaining the purpose, full effect must be given to the statutory fiction and it should be carried to its logical conclusion. The court has to assume all the facts and consequences which are incidental or inevitable corollaries to giving effect to the fiction. The legal effect of the words „as if he were‟ in the definition of „owner‟ in Section 3(n) of the Nationalisation Act read with Section 2(1) of the Mines Act is that although the petitioners were not the owners, they being the contractors for the working of the mine in question, were to be treated as such though, in fact, they were not so."
(emphasis added)
7. Two principles can be extracted, from the above judgement. Firstly, a legal fiction creates a fact situation which is not in actual existence and that fact situation has to be taken to its logical conclusion. Secondly, while construing a legal fiction, it must always be remembered that the purpose for which such a legal fiction is being created must be considered and the said legal fiction must be limited to the purpose for which, it was created. The Judgments cited by Sri K.Madhava Reddy, learned standing counsel, in State of Karnataka Vs. State of Tamil Nadu and Ors., (4 supra) and Paramjeet Singh Patheja Vs. ICDS Limited (3 supra) would also support this understanding of the above passage in the Judgment of the Hon‟ble Supreme Court.
RRR,J 9 W.P.No.21761 of 2020
8. It would now be necessary to ascertain the purpose for which this legal fiction has been created. Section 145 of the 1987 Act provides for the takeover of an institution or endowment by another institution or endowment. Where the Commissioner finds that a religious institution is in trouble and needs outside assistance to revive itself, either on account of the fact that due to financial difficulties it is not capable of maintaining itself or there is a necessity of improving the management or administration of the said institution or endowment, the Commissioner can direct the takeover of such an institution or endowment by any other institution of endowment. This takeover is for the purposes of assisting the troubled institution till it can run itself without outside help. This takeover can be in two forms. It would be either by way of amalgamation or by way of adoption. However, this takeover is not a permanent situation. Section 145(3) mandates that where the adopted/amalgamated institution improves its functioning to a stage where the said institution or endowment can be managed by itself, the order of takeover issued by the commissioner would be revoked. Further, the initial takeover itself need not be a complete takeover as the order of takeover can place restrictions and conditions in relation to the takeover of the institution. Section 145 has been introduced for the purposes of protecting financially weak or badly managed institutions, till they are able to stand on their own feet. The purpose of Section 145 is not a permanent merger of Institutions.
RRR,J 10 W.P.No.21761 of 2020
9. In the light of the scope of Section 145, the legal fiction created under Section 145(1) is obviously for the purposes of ensuring that there are no hurdles in the management of the adopted institution or endowment by the adoptee institution or endowment. In the alternative, if the contention of the petitioner is to be accepted, the petitioner would be treated as an employee of the 3rd respondent temple and would be paid a salary of Rs.25,000/- on par with the other Archakas working in the 3rd respondent temple. However, on the revocation of the order of takeover by way of adoption, the petitioner would have to be paid the reduced scale of salaries payable for an Archaka employed by Sri Lakshmi Narayana Swamy Temple. Such a dichotomy is clearly not what the legislature intended by creating this legal fiction. As noticed above, the adoption or amalgamation of an institution is a temporary phase and each institution would have to go back to functioning in accordance with its categorization under the Act, after the adoption/amalgamation is revoked. In the circumstances it must be held that, the legal fiction set out in Section 145 (2) would be restricted to the extent of creating a unified management of both the institutions and nothing further.
10. In the circumstances, the contention of the petitioner that he is to be treated as an employee of the 3rd respondent temple, by virtue of the legal fiction in Section 145 of the 1987 Act, cannot be accepted.
11. Accordingly, the Writ Petition is dismissed. There shall be no order as to costs.
RRR,J 11 W.P.No.21761 of 2020 Miscellaneous petitions, pending if any, in this Writ Petition shall stand closed.
___________________________________ JUSTICE R.RAGHUNANDAN RAO Date : 05-10-2021 RJS RRR,J 12 W.P.No.21761 of 2020 THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO WRIT PETITION No.21761 of 2020 Date : 05 -10-2021 RJS