Madras High Court
D.V.Murugan vs The State Of Tamil Nadu on 13 January, 2020
Author: R.Mahadevan
Bench: R.Mahadevan
WP.No.26896 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.01.2020
CORAM
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
W.P.No.26896 of 2018
D.V.Murugan ... Petitioner
Vs.
1.The State of Tamil Nadu,
rep.by its Secretary,
Tourism, Art and Culture,
Hindu Religious Endowments & Information,
Secretariat, Fort St. George,
Chennai – 600 009.
2.The Commissioner,
Hindu Religious and Charitable Endowments Department
Uthamar Gandhi Salai,
Nungambakkam,
Chennai – 600 034.
3.Government College of Architecture and Sculpture,
represented by its Principal,
Mamallapuram,
Kancheepuram District – 603 104. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of
India, praying to issue a writ of Mandamus to direct the respondents to
appoint the Stapthy degree holders of the Government College of
Architecture and Sculpture, Mamallapuram in the post meant for
Assistant Engineer in every Zonal office of Joint Commissioner and
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WP.No.26896 of 2018
Assistant Commissioner or in the alternative make provisions for
appointing the degree holders of the Government College of
Architecture and Sculpture as Stapathis similar to the practice in
Andhra Pradesh in each division taking into consideration the number
of temples in a particular division under the HR&CE Department.
For Petitioner : Mr.S.Prabhakaran
For R1 : Mr.J.Ramesh, AGP
For R2 : Mr.M.Maharaja, SGP
ORDER
The prayer in this writ petition is to issue a writ, order or direction in the nature of mandamus, directing the respondents to appoint the Stapathi degree holders from Mamallapuram Government College to the post meant for Assistant Engineer in every Zonal office of the Joint Commissioner and Assistant Commissioner or in the alternative, making provisions for appointing the said degree holders as Stapathis similar to the practice in Andhra Pradesh in each division, taking into consideration the number of temples in a particular division under the Hindu Religious and Charitable Endowment Department (for brevity, 'the HR&CE Dept').
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2.The succintly stated facts are as under:
2.1 The petitioner is a graduate from the Government College of Architecture and Sculpture, Mamallapuram and he is doing works related to the temple architecture and sculpture by way of a studio established in the year 1994.
2.2 According to the petitioner, the Tamil Nadu Institute of Architecture and Sculpture, Mamallapuram was established in the year 1957 as per G.O.Ms.No.99, Industries, Labour and Co-operation (Special) Department, dated 6th August,1956, with a view to preserve the ancient craft of sculpture in this State and to provide trained workers needed for renovation of temples and other works of art. This Institute approximately offers 58 professional subjects inclusive of Temple Sculpture, Traditional Architecture, Archaeology, Agamam, Iconography, Museum, Hindu Religious and Charitable Endowments and Tourism. Now, the Institute is under the Directorate of Art and Culture Department of Government of Tamil Nadu and under the affiliation of the University of Madras.
2.3 Further, the Bachelor of Fine Arts Degree was offered by the University of Madras through Mamallapuram College in the year 1981. Initially, it was a 4 year certificate course, after the basic qualification of 8th pass or fail and then, it was converted as 8 year 3/43 http://www.judis.nic.in WP.No.26896 of 2018 degree course from the year 1981-82. Thereafter, in the year 2000-01 the course was renamed as Bachelor of Fine Arts in Traditional Architecture and Traditional Sculpture with a basic qualification of Plus Two with a duration of 4 years. B.Tech in Traditional Architecture, B.F.A in Traditional Sculpture and B.F.A in Traditional Drawing and Painting courses are also offered. Considering the development of this Institute, a Computer Centre, a separate building for library, a sculpture part, a mega sculptural studio for sculptors and a school for Tourists enjoyment were established.
2.4 It was the only College in the whole of India to teach Fine Arts in Temple Sculpture and Traditional Architecture at that point of time. The subjects taught in the College are unique and specified.
Similarly, the students also study Sanskrit, Agamam and Aesthetics subjects. Nearly 40 students graduate each year and approximately, upto 1800 students have graduated from Mamallapuram College since its establishment.
2.5 However, the establishment of College has not culminated into jobs even in the HR&CE Dept, despite there being a necessity for the same and Stapathis are appointed on contract basis. Hence, seeking for a direction to appoint the graduates from the 3rd respondent College in the existing posts of Engineers or for appointing 4/43 http://www.judis.nic.in WP.No.26896 of 2018 the passed out students as Stapathis in line with the Andhra Pradesh Government, the instant writ petition has been filed.
3.Mr.S.Prabhakaran, learned counsel for the petitioner contended that the HR&CE Dept deals with the maintenance and repair work associated with the temples. There are around 38,615 Hindu Religious and Jain Institutions under the control of the HR&CE Dept. Among them, around 8,450 temples are more than 100 years old, which also include more than 1,000 years old temples. The assistance of the Stapathis is required for construction/renovation/restoration work in the temples, which are under the HR&CE Dept. The Stapathis were selected from the panel of Stapathis approved by the Government. Initially, the qualification prescribed for the candidates to be included in the panel of Stapathis, was completion of 8 year degree course in Mamallapuram College along with an experience of 5 years. Subsequently, the qualifications prescribed were altered as per the notice dated 01.03.2007, which were unsuccessfully challenged in WP.Nos.11979 and 21551 of 2007. The above said notice specified two fold qualifications, which are vague and unspecific and it purported to treat on par an educationally qualified person with that of an uneducated/unqualified person.
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4.The learned counsel for the petitioner further contended that the Principal of Mamallapuram College has sent representations on 04.01.2016, 31.08.2016 and 15.11.2016 seeking appointment of the students graduated in B.Sc. Temple Architecture/B.Tech. Traditional Architecture in Mamallapuram College to the post of Additional Engineer and Assistant Stapathis in the HR&CE dept, as they possess all the necessary qualifications; all the graduates from Mamallapuram College have registered their names in the Employment Exchange and Training Department of Tamil Nadu; the 2nd respondent has sent a letter to appoint the graduates from Mamallapuram College to the posts of Engineers and Stapathis; the Graduates Association has made a representation in the form of a letter to the 2nd respondent on 05.04.2018 requesting them to consider the resolutions passed by the Association and to take necessary steps with regard to the practice followed in Andhra Pradesh in appointing graduates from Mamallapuram College in temples; only the graduates from Mamallapuram College are qualified for the Government jobs; the above was reiterated by the 3rd respondent citing the example of Tirupathi Devasthanam established institute in Andhra Pradesh; there is an Engineering Wing in the Headquarters of the HR&CE Dept consisting of one Superintending Engineer, one Executive Engineer, 6/43 http://www.judis.nic.in WP.No.26896 of 2018 one Assistant Divisional Engineer, Two Assistant Engineers, one Assistant Engineer(Electrical); that in every Zonal level Joint Commissioner’s Office, there is an Assistant Divisional Engineer and in every Zonal level Assistant Commissioner’s Office, there is an Assistant Engineer to carry out renovation works; the posts are filled up only through deputation from the Highways Department and the Public Works Department and these Engineers only scrutinize the estimates for carrying out the temple renovation/restoration, construction, supervise works and record measurement, whereas Stapathis are well- versed in both supervising as well as construction and renovation of temples; the petitioner has sent a representation dated 03.09.2018 seeking appointment of the passed out students from Mamallapuram College as Stapathis in the temples as they are well acquainted with agamams, sculptures, traditional architecture and construction similar to the practice in Andhra Pradesh.
5.The learned counsel for the petitioner also contended that in all the temples, which are under the control of the Joint Commissioner and Deputy Commissioner of the HR&CE Dept, the Engineers who have no experience in the art of sculpture and traditional architecture, are appointed for doing the works related to sculpture, traditional 7/43 http://www.judis.nic.in WP.No.26896 of 2018 architecture and construction of temples, whereas Stapathis, who possess the required qualification and education, are not appointed. He further contended that the respondents have been appointing uneducated and unqualified persons as Stapathis to carry out the restoration works in the temples on contract basis, which has led to controversies, corruption and biased appointments. Further, they without understanding the importance of the paintings, sculptures etc., carry out work in an amateur way. Contending so, the learned counsel requested for appropriate directions to be issued to the respondents, by allowing either of the prayers made in this writ petition.
6.Per Contra, Mr.M.Maharaja, learned Special Government Pleader (HR &CE), relying upon the counter filed by the second respondent, contended that the Government, more particularly, the HR&CE Dept has taken steps to appoint the graduates from the third respondent College in the cadre of Assistant Engineer in HR&CE Dept. In this regard, a communication was received from the Directorate of Art and Culture (G) dated 24.04.2016 seeking opinion about the appointment of the graduates from the 3rd respondent College. On receipt of the same, a communication was sent to Anna University, Guindy seeking the syllabus details of BE (Civil) and to the Principal of 8/43 http://www.judis.nic.in WP.No.26896 of 2018 College of Mamallapuram Government Architectural and Culture on 05.07.2016 seeking the syllabus of B.Tech, B.F.A (Traditional Sculpture) and B.F.A. (Traditional Drawing and Painting). Further, a detailed proposal has been sent to the Government on 08.10.2016 regarding the creation of Tamil Nadu Hindu Religious and Charitable Endowments Engineering and Subordinate Service. An additional report was also sent by the HR&CE Dept on 14.10.2016 to the Government, after the receipt of the letter dated 04.01.2016 from the Principal of the third respondent College and in that report, a suggestion was made to give priority to the students of Mamallapuram College in the proposed Tamil Nadu Hindu Religious and Charitable Endowments Engineering and Subordinate Service.
7.The learned Special Government Pleader (HR&CE) appearing for the second respondent further contended that a proposal to constitute a Committee to give opinions on the drawings of Rajagopuram, Temple Cars, etc. with the Principal of the 3rd respondent College as the Chairman, was made. Based on the reports, the Government has decided to create the posts of Chief Engineer, Superintending Engineer, Executive Engineer, Assistant Divisional Engineer, Assistant Engineer(Construction), Assistant Engineer 9/43 http://www.judis.nic.in WP.No.26896 of 2018 (Electrical), Senior Draftsman, Draftsman, Junior Draftsman, Assistant Stapathi and Stapathi for Wood work and has issued a letter bearing No.3400/RE1.2/2018-1 dated 22.06.2018. Subsequently, the HR&CE department, vide its letter bearing Rc.No.52033/2016/L5 dated 06.09.2018, has requested the Government to pass orders for creation of the posts of Engineers, Draftsman, Stapathis, etc. However, no orders have been passed.
8.The learned Special Government Pleader (HR&CE) appearing for the second respondent also contended that the present posts of Superintending Engineer to Junior Draftsman are not confirmed permanent posts and are filled up only by deputation from Public Works Department, Highways and other departments. Further, the 11 posts of Stapathis were filled up and there is no vacancy at present. He further contended that reliance on G.O.Ms.No.337 dated 10.09.2015 issued by the Government of Andhra Pradesh is ill- founded, because what has been placed before this Court is only a preliminary notification and the final Government Order has not been produced. Relying upon the said notification, it was contended that the system of engagement of Stapathis on contract or tenure is also followed in Andhra Pradesh, when no candidate is available for 10/43 http://www.judis.nic.in WP.No.26896 of 2018 promotion. Adding further, he submitted that despite the fact, the Government has been taking steps, the petitioner has rushed to this Court, that too, without challenging the recruitment of Engineers by deputation and hence, the present writ petition cannot be sustainable before this Court.
9.The learned Special Government Pleader (HR&CE) further contended that the Government can only establish the Colleges; it is not for the Government to create job opportunities, but it is for the students to find appropriate job. Reiterating the fact that action is being taken, he submitted that once the Government Order is issued on the proposal, the draft service rules will be sent to the Government for approval and appropriate action will be taken. Hence, he sought dismissal of this writ petition.
10.The learned Additional Government Pleader appearing for the first respondent has adopted the submissions made on the side of the second respondent.
11.This Court gave its anxious consideration to the submissions made by the learned counsel on either side and carefully perused the materials available on record.
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12.The State of Tamil Nadu is home to more than 50,000 temples, out of which, more than 38,000 temples come under the control of the HR&CE Dept. The age of some temples goes back to 2,000 years. The temples not only consist of deities in the form of idols, but also sculptures in the form of idols with marvellous architecture. The location of the temples, pillars and deities at a particular place are not without a cause. The Stapathis/Sculptors were well versed not only in the art of sculpting, but also in the agamas and were knowledgeable to bring to life, every deity with precision. This Court has, in many cases, dealt with the significance of idols in the temples and the need to protect and recover them.
13.This writ petition has brought to light two issues that now comprehend the temple administration, viz., the preservation of the temples and deities on one hand and the requirement of able hand on the other. It is not to be forgotten that even before several centuries, the sculptors from this land had travelled throughout the world and built temples with great architectural design and precision confirming to the Agamas of Tamil Nadu. Many temples in this State have now been declared as places of Archaeological importance. The State is now facing an indifferent situation, where it is riddled with idol thefts 12/43 http://www.judis.nic.in WP.No.26896 of 2018 on one hand and need to preserve/repair/resurrect the existing temples including the deities on the other.
14.The preservation or resurrection of temples and the need to preserve the craft of sculpting forced the Government of Madras to establish a Training Centre at Mahabalipuram (Mamallapuram) with financial aid from the Government of India. Resultantly, G.O.Ms.No.99 Industries, Labour and Co-operation (Special) Department, dated 06.08.1956 came to be issued. Pursuant to the said Government Order, the 3rd respondent College was commenced by the State, bringing it under the Directorate of Art and Culture, affiliating it with the University of Madras. The courses underwent several changes and the institution now offers B.Tech (Traditional Architecture), B.F.A (Traditional Sculpture) and B.F.A (Traditional Drawing and Painting). It is not in dispute that the students are trained in 58 subjects including Sanskrit, Civil Engineering, Agamam and Aesthetics. To either design/build/repair/resurrect a temple or any deities or any idols, a Sculptor has to be well versed with sculptural techniques and Aesthetics as every idol carries with it the story of a particular deity, which are often found in scripts in literature. Fittingly, the Government has located the College at Mamallapuram, which could be called as the 13/43 http://www.judis.nic.in WP.No.26896 of 2018 epitome of tourist attracting in and around Chennai, because of its historical association with art and sculptures.
15.While the third respondent College has produced several graduates, the Government has not availed their services in the renovation of temples, despite the same being one of the reasons for the establishment of the institution itself. It is noteworthy to refer here that the department has been availing the services of traditional Stapathis by way of contract. There is a Chief Stapathi, who takes decisions regarding renovation of the temples or resurrection/replacement of the idols. Then, the contract is awarded to a Stapathi or to a Civil Contractor. This Court is unable to comprehend as to why the services of the graduates from the 3rd respondent College was not utilized and as to why the Government has not created permanent posts of Engineers, Draftsman and Stapathis, when there is requirement and when the Engineers from other departments have been continuously deputed to the HR&CE Dept.
16.It has been contended on the side of the respondents that it is not the duty of the Government to create jobs and it is for the graduates to look out a job of their choice. This Court is not in 14/43 http://www.judis.nic.in WP.No.26896 of 2018 agreement with the contention so raised by the respondents 1 and 2 for the following reasons:
(a)The object of establishment of the College was itself to avail the services of the graduates in renovation work of the temples;
(b)The stand taken is directly in conflict with Articles 39 and 41 of the Constitution of India;
(c)A mere establishment of a College of this kind without opportunity of employment, would not serve the purpose for which it was established;
(d)The education on the craft of sculpting, if not put into practice, would by no means, preserve the craft; and
(e)The Government, instead of appointing qualified people, cannot continue to avail the services of personnel deputed from other departments for eternity.
17.The learned counsel for the petitioner has contended that the successful students from the 3rd respondent College, prior to the establishment of an institution in Tirupati, Andhra Pradesh, were recruited as Stapathis in Andhra Pradesh before bifurcation and now, there are sanctioned posts in Telugana and Andhra Pradesh, in which only graduates are appointed. In support of the said contention, he relied on G.O.Ms.No.377 Revenue (Endowments-1) Department, dated 10.09.2015 issued by the Government of Andhra Pradesh. Whereas, the said contention raised by the learned counsel for the petitioner was 15/43 http://www.judis.nic.in WP.No.26896 of 2018 refuted on the side of the respondents, stating that it is not the final order, but only a draft notification.
18.Though G.O.Ms.No.377 Revenue (Endowments-I) Department, dated 10.09.2015 was only a draft of the amendment calling for objections, a careful perusal of the same would reveal that it is a Government Order proposing amendment to the existing Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Service Rules, 2002 published in the extraordinary Gazette No.210 dated 10.05.2002 in Andhra Pradesh. Therefore, it is clear that already, the system of appointing qualified personnel in the post of Stapathis in various cadres was in vogue. For better appreciation, the relevant portion of G.O.Ms.No.245 Rev (Endt.I) Department, dated 08.05.2002 for which amendment was proposed, is as follows:
“i. Short title : These rules may be called the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Service Rules, 2002.
ii. Constitutions: The Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Service shall consist of the following classes and categories of posts, namely:
Class-I:
Commissioner, Additional Commissioner, Regional Joint Commissioner including Joint Commissioner, Deputy Commissioner and Assistant Commissioner.16/43
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Executive Engineer, Deputy Executive Engineer, Assistant Executive Engineer, Stapathi (Executive Engineer Cadre), Deputy Stapathi (Deputy Executive Engineer Cadre), Agama Sastry Pandit, Special Officer iii. Appointing Authority and the method of appointment: In Class – I for the categories 1,2 and 3, the Government shall be the appointing authority and for categories 4 and 5, the Commissioner of Endowments is the appointing authority. In Class–II, for Category 1, the Government is the appointing authority and for categories 2 to 7 the Commissioner is the appointment authority.” ...
19.In addition to the above, the Andhra Pradesh Government has also issued G.O.Ms.No.262 dated 20.05.2002 notifying the Subordinate Service Rules, which provides for recruitment procedure and qualifications for the post of Assistant Stapathi, Draftsmen, Silpi Draughtsman and Silpi Tracer. Therefore, the contention raised on the side of the respondents 1 and 2 that no such posts are existing in Andhra Pradesh cannot be accepted by this Court. It is pertinent to point out here that in Andhra Pradesh, contractual appointments are made only on adhoc basis until a regular appointment is made. A perusal of the above Government orders would reveal that only qualified persons can be appointed to any post even on contractual 17/43 http://www.judis.nic.in WP.No.26896 of 2018 basis. However, the Government of Tamil Nadu, despite establishing an institution before 60 years, has not chosen to insist for qualification in its appointments.
20.Ashtabandana Kumbhabishegam (Consecration) is normally to be conducted once in 12 years. At that time, the renovation works including the resurrection of damaged idols, pillars, paintings, etc are to be carried out. It is a proven scientific result that periodical resurrection/renovation decreases the possibility of damage. At this juncture, it is apropos to refer to statement of objects and reasons and certain provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter shortly mentioned as 'HR&CE Act') and the Rules framed thereunder.
21.The statement of objects and reasons to Tamil Nadu Hindu Religious and Charitable Endowments (Amendment) Act, 1991 (Tamil Nadu Act 46 of 1991) read as follows:
“A large part of small, ancient and dilapidated temples which form part of our rich heritage are lying uncared for:
Many of these temples are in ruins: Lack of adequate finance has led to this situation of neglect. It is, therefore proposed to reorganize the Hindu Religious and Charitable 18/43 http://www.judis.nic.in WP.No.26896 of 2018 Endowments Administration Department by the establishment of Temple Administration Board so as to ensure proper maintenance and administration of the temples besides observance of worship and rituals in the temples.
The Endeavour is to have a two tier system of administration, namely Temple Administration Board at the apex level and a District committee at a District level. The Chief Minister will be the Chairman ex-officio, of the Temple Administration Board. The overall superintendence and governance of temples including appointment of trustees of temples having an annual income of Rs 1,00,000/- and above are to be vested with the Temple Administration Board and the power to appoint trustees for temples having an annual income of less than Rs.1,00,000/- is to be vested with the District Committees. It is also proposed to entrust the powers of the Commissioner, Deputy Commissioner and Assistant commissioner under the Act, except certain powers of judicial nature, etc. with temple administration Board and District Committees, suitably.” Thus, it is clear from the aforesaid statement of objects and reasons to the Amendment Act, 46 of 1991 that a Board was created with the Chief Minister of the State at the helm of affairs to take necessary action to protect the ancient temples.
22.Subsequently, by Amendment Act 19 of 1993, nomenclature 19/43 http://www.judis.nic.in WP.No.26896 of 2018 of “the District Committee” as defined in Clause 8–A of Section 6 of the HR&CE Act was changed as “Temple Administration District Committee”. Thereafter, by Amendment Act 39 of 1996, Temple Administration Board and the Temple Administration District Committee were abolished and the powers were restored to the Commissioner, Joint Commissioner, Deputy Commissioner and Assistant Commissioner for effective implementation of the various provisions of the HR&CE Act, since the department was facing difficulties in effective implementation of the same.
23.The statement of object and reasons to the HR&CE Amendment Act, 2007 (Tamil Nadu Act 13 of 2007) would run thus:
“Sub-section 1 of Section 7 of the TN HR&CE Act, 1959 (Act 22 of 1959), empowers the Government to constitute an Advisory Committee to recommendation on certain matters relating to the administration of the religious institutions. Under Clause (d) of the said subsection (1) of Section 7, the Government may nominate non-official members eight along with the official members to the said Advisory Committee in view of the larger interest of the institution and in getting the suggestions, various heads of mutts and experts from various fields have to be accommodated in the Advisory Committee. The Government have, therefore, decided to remove the restrictions on the number of non-official 20/43 http://www.judis.nic.in WP.No.26896 of 2018 members to be nominated to the Advisory Committee by amending the said Act.” The aforesaid extract would reveal that the Temple Administration Board was abolished and powers were restored with the Commissioner and other administrative officials to enable them to take earlier and effective decisions to safeguard the temples and its properties. The Government also removed the restrictions on non-official members in the Advisory Committee so as to utilize the services of experts in the administration of the religious institutions.
24.The relevant provisions of the HR&CE Act are extracted hereunder:
“7. Constitution of Advisory Committee-
(1) The Government shall constitute, for the State of the Tamil Nadu, a Committee called the Advisory Committee consisting of the following members, namely:-
(a) the Chief Minister, who shall be the Chairman, ex-officio;
(b) the Minister in-charge of the portfolio of Hindu Religious and Charitable Endowments who shall be the Vice-Chairman, ex-officio ;
(c) the Secretary to Government in-charge of Hindu Religious and Charitable Endowments, who shall be the Member ex-officio;
(d) Such number of non-officials professing Hindu religion, nominated by the Government, of whom one shall 21/43 http://www.judis.nic.in WP.No.26896 of 2018 be a member of the Scheduled Castes or Scheduled Tribes;
(e) The Commissioner, who shall be the Member- Secretary, ex-officio.
(2) The term of office of non-official members shall be three years and other matters relating to the Advisory Committee shall be such as may be prescribed.
(3) The Government may, after giving a show cause notice remove all or any of the non-official members of the Advisory Committee in the public interest.” “23. Power and duties of the Commissioner in respect of temples and religions endowments.—Subject to the provisions of this Act, the administration of all temples (including specific endowments attached thereto) and all religious endowments shall be subject to the general superintendence and control of the Commissioner and such superintendence and control shall include the power to pass any orders which may be deemed necessary to ensure that such temples and endowments are properly administered and that their income is duly appropriated for the purposes for which they were founded or exist :
Provided that the Commissioner shall not pass any order prejudicial to any temple or endowment unless the trustees concerned had a reasonable opportunity of making their representations.” As per the above section, it is the duty of the Commissioner to ensure 22/43 http://www.judis.nic.in WP.No.26896 of 2018 the object of the HR&CE Act, namely the effective administration of the temples, which includes the proper maintenance of the temples, idols, paintings and the properties of the temples.
“25.Commissioner, etc., to observe appropriate forms and ceremonies.—The Commissioner, an Additional Commissioner, a Joint Commissioner, a Deputy Commissioner or an Assistant Commissioner and every other person exercising powers of superintendence or control under this Act, shall so far as may be, observe forms and ceremonies appropriate to the religious institution in respect of which such powers are exercised and in the case of a math, act in conformity with the usages of the math in his dealing with the head of the math”.
According to the aforesaid section, the Commissioner and the officials are duty bound to observe the forms and ceremonies of the institution administered, implying that all the day to day traditional procedures are adhered to. It would also include with it the duty to perform Kumbabhishegam for the temples once in 12 years.
“97.Creation of Hindu Religious and Charitable Endowments Common Good Fund.—(1) It shall be lawful 23/43 http://www.judis.nic.in WP.No.26896 of 2018 for the Commissioner to create a Fund to be called the Hindu Religious and Charitable Endowments Common Good Fund [hereinafter in this section referred to as the said Fund], out of the contributions voluntarily made by the religious institutions from their surplus funds or by any person for the renovation and preservation of needy temples and their building and paintings, for the promotion and propagation of tenets common to all or any class of religious institutions and for any of the purposes specified in sub-section (1) of section 66.
1-A.The Commissioner may, on a direction from the Government, transfer to the said Fund, any surplus or such portion thereof, as may be specified in the direction, remaining in the Tamil Nadu Hindu Religious and Charitable Endowments Administration Fund after the repayment of the amounts specified in sub-section (2) of section 12 and sub-section (2) of section 96.
(2)The said Fund shall be vested in and such administered by the Commissioner in such manner as may be prescribed.” This provision enables the Commissioner to create a common fund through which to maintain old and needy temples and their buildings and paintings. It is not to be forgotten here that the word 'temple' would include with it “ the deity” and the structures in the temple.24/43
http://www.judis.nic.in WP.No.26896 of 2018 “116.Power to make rules.—(1) The Government may, by notification, make rules to carry out the purposes of this Act.
(2) Without prejudice to the generality of the forgoing power, such rules may provide for—
(i) all matters expressly required or allowed by this Act to be prescribed ;
.......
(xii) the custody of jewels and other valuables and documents of religious institutions and the conditions and restrictions subject to which the jewels and other valuables of religious institutions may be disposed of ;
......
(xvii) the preservation, maintenance, management and improvement of the properties and buildings of religious institutions including architectural, sculptural and epigraphic features ;
(xviii) the inspection and supervision of the properties and buildings of religious institutions, the reports to be submitted by persons making such inspection and supervision and the fees leviable for such inspection, supervision and report ;
(xix) the preservation of the images in temples ; (xxii) the preparation and sanction of the estimates and acceptance of tenders, in respect of public works and for supplies in religious institutions ;
(xxiii) the qualifications to be possessed by the officers and servants for appointment to offices in religious 25/43 http://www.judis.nic.in WP.No.26896 of 2018 institutions and the conditions of service of all such officers and servants;
............”
25.Emphasizing the importance of maintenance of the temples, images and paintings, architectures and sculptures, which cannot be achieved, but for periodical inspection, the Government has been empowered to frame rules and accordingly, Rules on different subjects as enumerated in Section 116 has been framed, which are addressed below:
Advisory Committee Rules, 1997 G. O. MS. No. 275, C.T. & R.E. Department, dated 16th July 1997 - SRO No. A-102(a) 1987. - In exercise of the powers conferred by sub-section (4) of section 7 read with sub-section (1) of section 116 of the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959 (Tamil Nadu Act 22 of 1959), the Governor of Tamil Nadu hereby makes the following rules, namely:-
………
4. The Advisory Committee shall meet at least once in six months and more often if need be as decided by the Chairman.
......
12. The Advisory Committee may make recommendations in respect of the following matters:-26/43
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3. Establishment and maintenance of University or colleges or other institutions with special provisions for the study of Hindu Religion, Philosophy or Sastras or for imparting instructions in temple architecture;
4.....
5. Renovation of temples in need of repairs by enlisting the co-operation of the public;
6. General suggestions in accordance with terms of the Trust and usage in regard to the better administration of religious institutions;
7. The preservation of architectural beauty of temples;
............”
26.Section 7 of the HR&CE Act and the Advisory Committee Rules, when read cumulatively, it would become clear that the Advisory Committee should meet at least once in every six months to take steps for protection of the temples and images. The Committee is also empowered to recommend for establishment and maintenance of University or Colleges or other institutions with special provisions for the study of Hindu Religion, Philosophy or culture or for imparting instructions in temple literature. However, no such meetings are being conducted and as a result of the same, many temples have been left at lurch. That apart, no steps were taken to harness the institution that has been functioning for more than six decades.
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27.Management and Preservation of Properties of Religious Institution Rules, reads as follows:
(G.O.P.No. 1837, Revenue , Dated The 10th July 1964) ...
3.Annual report on works to be carried out- The trustee of a religious , institution shall submit to the appropriate authority annually, six months before the end of each fasli, a report on the works which is desirable or necessary to carry out during the succeeding fasli, setting out the need for, and the details of, the works and giving a rough estimate of the expenditure involved and of the manner in which the expenditure involved and of the manner in which the expenditure on the works is proposed to be met.
4.Preparation of plans and estimates for works -
(1)Where the proposal of a trustee to execute any work is approved by the appropriate authority, detailed estimated shall be prepared and submitted along with the plan, if any, to the appropriate authority.
2) Detailed plans and estimates shall be prepared by persons having the qualification and status specified in Annexure –I to these rules from out of a panel approved by the Government, from time to time.
3) ………..
Provided also that in the case of institutions, where a 28/43 http://www.judis.nic.in WP.No.26896 of 2018 technically qualified person is employed with the sanction of the competent authority , the preparation of estimates and plans, measurement and check – measurement and supervision of the works may be got done by such technically qualified persons in respect of items of works costing less than Rs. 5,00,000 in each case Provided also that for the purpose of check –measurement of works, the officers of Public Works and Highways Department in actual service may be preferred as far as possible.
10. Works not purely secular- (1) proposals in regard to works that are not purely secular shall be framed with due regard to the principles and practices for traditional architecture and to the need for preserving architectural, sculptural and archaeological features.
2)White washing and painting may be done only for non- granite structures which do not contain any inscriptions or other sculptural works.
28.A conjoint reading of the provisions of the HR&CE Act and the Rules framed thereunder, would establish the following:
(a)That the authorities and the committees under the HR&CE Dept have a duty to protect the temples and its properties, which include the idols, pillars, paintings and any other architecture;
(b)That a periodical inspection of all the temples and its properties shall be made so as to take necessary steps for the maintenance and preservation of the same and a report has to be sent to the appropriate authority;29/43
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(c)That the forms and celebrations associated with the institutions shall be strictly observed;
(d)That appropriate steps are to be taken to establish academic institutions,
(e)That the role of staff from PWD and Highways department is limited only to the extent of estimation and check,
(f)That no provision has been made for the role of Stapathis, who could only confirm the renovation and resurrection works, instead that, the work has been assigned to the Engineers treating the temple works as mere civil works.
29.Though it was contended on the side of the respondents that the adhoc Chief Stapathi would be consulted on every work, this Court, considering the number of temples present and their age, is of the opinion that every Block in administration office should have at least one Stapathi attached to it depending upon the number of temples in each District, so as to enable the department to identify and resurrect the idols, paintings and images in the temples without delay.
30.Temples in Tamil Nadu are not only a source of identification of the ancient culture, but also a testimony of pride and knowledge of the talent in Tamil Nadu in the field of arts, science and sculpture. They are not only a conduit for spiritual activities, but also an 30/43 http://www.judis.nic.in WP.No.26896 of 2018 important source of tourist attraction. Though it could be contended that the advent of the British brought about a cultural change in India, the exception to that change until the advent of social media being the State of Tamil Nadu. In fact, even during the rule of the British, recognising the talent in Tamil Nadu, steps were taken to harness, preserve, develop and utilize the talent and knowledge of the artisans in the State and as a result, in 1850, the Madras School of Art was established by Dr.Alexander Hunter. The College is now known as Government College of Fine Arts and it offers both Bachelor of Fine Arts and Master of Fine Arts courses in painting, visual communication, textile designs, ceramics and sculpture.
31.The next institution which has been established in India, was Sir J.J. School of Art and it was founded in March 1857. This institution has the departments of drawing and painting, sculpture and modeling, mural, portraiture, print making, arts and crafts including ceramics, interior decoration, metal work and textiles. It has undergraduate and post graduate programs with BFA and MFA degrees. It comes under the Education Department of Government of Bombay, recognizing the significance of Indian art and crafts as part of culture rather than just technical education and industry. The five distinct departments viz., 31/43 http://www.judis.nic.in WP.No.26896 of 2018 Drawing and Painting, Sculpture and Modeling, Architecture, Real Art workshop for Art and Craft and Applied Arts, came under one roof of Sir J.J. School of Art, Bombay. This institution has also realized the importance of modern techniques and advancement in science, which is reflected in the courses offered and subjects.
32.The next institute established in India is KALA BHAVANA – Institute of Fine Arts founded in 1919 by the Nobel laureate Rabindranath Tagore. The academic programme combined with lectures, seminars and exhibitions give ample opportunities to the students. Kala Bhavana has six major departments and the subjects taught are Painting, Graphic Art (Print – making), Design (Ceramic & glass), Design (Textile), History of Art and Sculpture. The Courses offered in the said institution are Certificate, Diploma, B.F.A. (Honours), M.F.A, Advanced Diploma, Foreign Casual Course, Casual Course for Indian and Bridge Course in History of Art.
33.There is a basic difference in the object of establishment of the above institutions and the 3rd respondent College, despite the fact that all the institutions thrive to harness and develop the native talent in Arts like design, painting and sculpture. The other institutions were 32/43 http://www.judis.nic.in WP.No.26896 of 2018 not established for the purpose of employing trained personnel in the temples. Therefore, the State is bound to harvest more interest and employ the graduates from the 3rd respondent College in temple renovation and allied works by putting an end to the existing practice of appointing Stapathis on contract basis.
34.As already stated above, the 3rd respondent College was established for a special purpose and the courses offered therein include the following subjects:
(i) History of Indian Architecture (ii) Principles of Temple Architecture (iii) Art and Science of Sculpture (iv) Engineering Mathematics (v) History of Indian Sculpture (vi) Study of Iconography
(vii) History of Indian Painting (viii) History of Religion (ix) Science of Temple Architecture (x) Indian Philosophy (xi) Introduction of Archaeological (xii) Temple Administration (xiii) Heritage Management and Tourism (xiv) Music and Dance (xv) Construction Management (xvi) Museology (xvii) Agamam (xviii) Iconometry (xix) Study of Sanskrit (xx) Folk Painting (xxi) Sculpture Drawing (xxii) Tradition Drawing and Painting (xxiii) Asethetics (xxiv) Ornamentation and Indian Art (xxv) Structure and function of HR&CE (xxvi) Architecture design and drawing and (xxvii) Epigraphy and conservation.
35.A careful reading of the above would only augment the contention of the learned counsel for the petitioner that the graduates 33/43 http://www.judis.nic.in WP.No.26896 of 2018 are to be employed in the HR&CE Dept. As such, this Court has no hesitation to observe that the subjects taught in the 3rd respondent College are sufficient enough to qualify as a Stapathi, with the advancement of Science and technology and further, it is the right time that the Government constitutes a Committee to include the study of designing through advanced and latest technologies in the curriculum to enable the students to upgrade and compete in the competitive world.
36.This Court is aware of the fact that the temples in Tamil Nadu were constructed by Stapathis who acquired such knowledge by traditional training and not by means of any educational qualification. There are more than 8,450 temples which are more than 100 years old. At the same time, it is not to be forgotten that the Government has periodically revised and devised the syllabus in the 3 rd respondent College ensuring that all the traditional methods and techniques are taught to the students.
37.During the course of hearing, the learned Special Government Pleader (HR&CE) appearing for the 2nd respondent has brought to the notice of this Court that based on various representations including 34/43 http://www.judis.nic.in WP.No.26896 of 2018 that of the Principal of the 3rd respondent College, the Government has decided to create certain posts in the cadre of Engineers, Draftsman, Stapathis, etc. and promulgate Tamil Nadu Hindu Religious and Charitable Endowments Engineering and Subordinate Service Rules. The recommendations of the department were sent on 06.09.2018. However, the Government has not issued any orders till date.
38.The 3rd respondent College was commenced in 1957. Only from 2016, there is some movement to create some statutory posts. The graduates, despite being trained in all spheres including Civil Engineering, have been left at lurch by the Government, which by its inaction, has defeated the object of creation of the said College. Only a few graduates have started workshop/studio on their own. It was represented before this Court that nearly 1,800 students have graduated so far from the said College and when a question was posed as to how many of them are employed in Government services, the only answer that came from the respondents was that a few may be employed as painting teachers in some schools implying that despite graduation from the College, many are either jobless or could have taken recourse to some other field, thereby defeating the object of creation of the said institution. All these years, the department has 35/43 http://www.judis.nic.in WP.No.26896 of 2018 been carrying out the renovation works with the help of deputed Engineers. As per G.O.Ms.No.256 dated 25.04.1988 issued by the Personnel and Administrative Reforms (FR.II) Department, the deputation of a Government servant cannot exceed three years and this rule of limitation has to be strictly followed. That being so, there is no necessity to challenge the said appointments and as such, deputation can only be for a temporary period until the vacancy, either in temporary or permanent post, is filled up by calling for applications from qualified candidates registered with the employment exchange through public notice.
39.The 1st and 2nd respondents have claimed to have filled up the 11 posts of Regional Stapathis. However, they have not produced any materials to show that the persons appointed are qualified and they are appointed through proper means. Further, there is no clear- cut information about the said posts whether permanent or temporary. In any event, the department has to recruit only qualified persons, that too, by proper means.
40.The next point for consideration is with regard to the appointment of Chief Stapathi on contract basis. As pointed out earlier, 36/43 http://www.judis.nic.in WP.No.26896 of 2018 there are more than 38,000 temples under the control of HR&CE Dept. The provisions of the HR&CE Act pave way for the establishment of the Advisory Committee. The Committee also consists of experienced Stapathis. It was brought to the notice of this Court by the Special Government Pleader (HR&CE) appearing for the 2nd respondent that the department had earlier requested the Government to constitute a Committee to countersign and give opinion on the drawings of Rajagopuram, temple cars, etc. with the proposal to make the Principal of the 3rd respondent College as Chairman. Subsequently, the Government, accepting the said proposal, has issued G.O.Ms.No.108 TC&RE (RE5-2) Department dated 02.07.2018. The practice of appointment of a Chief Stapathi can only be in the absence of an Advisory Committee or an Expert Committee. By law, the State is to constitute an Advisory Committee. That apart, an Expert Committee has been constituted with the Principal of the 3 rd respondent College as Chairman of the same. Therefore, once the Committee is constituted, the necessity to have a Chief Stapathi to voice his individual opinion to carry out renovation works, would not arise. It is also brought to the notice of this Court that the Government has passed an order vide G.O.Ms.No.108 TC&RE (RE2-1) Department, dated 09.08.2019, thereby constituting a new department viz., 37/43 http://www.judis.nic.in WP.No.26896 of 2018 Renovation and Conservation Wing for Tamil Nadu Religious and Charitable Endowments Department with strength of 175 posts including newly created 90 posts for Engineers, Draftsman and Stapathis.
41.It may not be out of place to point out here that the State of Tamil Nadu, for better temple administration, has been divided into 11 zones headed by the Joint Commissioners. The 11 zones have further been divided into 28 Blocks headed by the Assistant Commissioners. The division of Blocks is based upon the number of temples in the region. For the purpose of inspection and works, the services of Engineers deputed from PWD and Highways department, are utilized. As stated earlier, the knowledge in Civil Engineering alone is not sufficient to cater to the needs of renovation of temples including sculpting. Whereas, the students from the 3rd respondent College or any other institution covering the field, who are also taught architecture and design with thorough knowledge in Sculpting, would be eligible to be appointed in the HR&CE Dept. The appointment of such successful candidates as Stapathis would also lessen the financial burden on the exchequer as the Stapathis would be in a position to carry out minor repair works on their own with less role from the third 38/43 http://www.judis.nic.in WP.No.26896 of 2018 parties and they could very well perform twin functions as that of an Engineer and also as that of the Stapathi. The State is already in the process of notifying the Tamil Nadu Hindu Religious and Charitable Endowments Engineering and Subordinate Service Rules. As held by this Court, a person cannot be on deputation for more than three years. Therefore, the creation of appropriate posts to achieve the objects of G.O.Ms.No.99, Industries, Labour and Co-operation (Special) Department, dated 06th August 1956 cannot be further delayed. As pointed out earlier, the duty of the State under the Constitution of India is to provide ample employment opportunities to its citizens. Education without opportunity for employment is meaningless. Right to employment is a fundamental right and when a special institution is created for a specific purpose, it is the duty of the State to make way for adequate employment opportunities. With this observation, this Court is inclined to issue the following directions:
(a) The 1st respondent shall finalise and bring into life the Tamil Nadu Hindu Religious and Charitable Endowments Engineering and Subordinate Service Rules within a period of 3 months;
(b) The Renovation and Conservation Wing for Tamil Nadu Hindu Religious and Charitable Endowments Department constituted under G.O.Ms.No.108 TC&RE (RE2-1) Department, dated 09.08.2019, shall 39/43 http://www.judis.nic.in WP.No.26896 of 2018 implement the objects, for which, it was constituted, in order to preserve/resurrect/restoration of temples and its sculpture.
(c) The posts of Engineers, Draftsman and Stapathis in the said newly formed department, shall be filled up strictly in accordance with the required qualification and special knowledge and experience and by proper method of appointment.
(d) The post of Stapathis shall be appointed, taking note of the number of temples in each Block; if the sanctioned post is not sufficient, the authority concerned shall take steps to get necessary orders from the Government in this regard.
(e) While filling up the posts of Engineers, Draftsman and Stapathis in the said newly formed Department, first priority shall be given to the graduates from the 3rd respondent College or any other recognised institution covering the field, who are also taught architecture and design with thorough knowledge in sculpting.
(f) The first respondent shall provide all the infrastructure and other facilities to the third respondent College so as to enable them to qualify the students efficiently.
(g) The 1st respondent shall take steps to constitute the Advisory Committee as per section 7 of the HR&CE Act and in absentia, the Committee already constituted with the Principal of the 3rd respondent 40/43 http://www.judis.nic.in WP.No.26896 of 2018 College as Chairman as per G.O.Ms.No.108 TC&RE (RE5-2) Department, dated 02.07.2018 alone would be entitled to countersign and give opinions on the renovation of the temples and resurrection of the idols, images, paintings, pillars or any scriptures or any other matters of ancient or historical importance;
(h) Such Committee shall invite suggestions from the Experts from various fields for proper implementation of the same;
(i) The Committee shall also consider to give suggestion to include the study of designing through advanced and latest technologies in the third respondent College.
(j) The services of staff from other departments is to be periodically reduced keeping in mind the period of deputation; In case of any need, they are used only for the limited purpose of estimation and civil works.
42.This writ petition stands allowed in the above terms. No costs.
List after three months for reporting compliance.
Index : Yes/No 13.01.2020
Internet : Yes/No
rk
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WP.No.26896 of 2018
To
1.The Secretary,
Tourism, Art and Culture,
Hindu Religious Endowments & Information,
Secretariat, Fort St. George,
Chennai – 600 009.
2.The Commissioner,
Hindu Religious and Charitable Endowments Department Uthamar Gandhi Salai, Nungambakkam, Chennai – 600 034.
3.Government College of Architecture and Sculpture, represented by its Principal, Mamallapuram, Kancheepuram District – 603 104.
42/43 http://www.judis.nic.in WP.No.26896 of 2018 R.MAHADEVAN, J.
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