Karnataka High Court
Sri.Thirukappa vs The State Of Karnataka on 31 May, 2010
Author: Mohan Shantanagoudar
Bench: Mohan Shantanagoudar
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 31" my OF MA'/, 2010":V."::.:"".:r'.." BEFORE THE HON'BLE MRJUSTICE Monm sH.«NTAmj;;<>Vs,j:>AR wen PETITION NO.16_138V'OI_520O9 R BETWEEN : Thirukappa 5 S/o Hanumanthappa Dhonii '- Aged about E50 years H " . Working as Waf;¢h.man"at"'*..:: . . Chappali Stand Kukke Sut;.r'aman~y.a;'« ' . Tempie, Subramanx/a' Sulia T3I--L!.k_,"Q.K."'Di.Sti'»iCL._.' ' "Petitioner (By sE:.A.=s. Méi:é;~s.fia.,e'V'A:iy.;)' R AND : A_ 1._>f--.he State éf"z<.amataka _ 'Rep'7"by'"its Secretary Desilae-trnnernat__of Reiigious Ené.c'w.r'r.e"nts~ (Revenue) 'q NQS. 'E3uji--ld'§=ng *-Ba ng al_o.E1'e~ 560 00 I. O2, Cornrnnissioner for Hindu '"RAe1igious and Charitabie V' Endowments, Chamarajpet i3angaiore--560 03.8. I M) s 3. Kukke Subramanya Swamy Tempie Subrarnanya, Suiia Taiuk Dakshina Kannada District By its Executive Officer. ..Respondent'fs,
(By sn Jagacieesh Mundargi, AGA., for R1 & R;2j;:' Smt. Vaishaii Hegde, Adv., for R3) V .. '~ This writ petition is filed under Artiiolesznfi the Constitution of India, praying to "quash 'the'~ .irt1p't1gnéd._ order vide Annexure--B dated 2.5__.2009.passec1 by the R3}; This writ petition coming'o12_'»fo1jpreiimitiairy hearing in B--Group, this day the Court made :theV'fo11owih'g-:.-- QR The H ':'\N:«:?is"'~~.......7app0inted as Maaii/Horti.c.u:!.tu_rai'V"the year 1995 in the third :'r_espond'errt_,:'a_t'en?ivp_ie,-"failing within the definition of the term_'Rei.i"g'io:.i:'s_.»sVInstitution' under sub--section Svect'io"r1.s(§____'o.'f the Madras Hindu Religious and .Charit\[e~.':""Endowments Act, 1951 (hereinafter irrefeirred'.v'V't1oV:'as the 'Madras HRCE Act') r/w Madras Hind'u:__"1~Reiigious and Charitabie Endowments Rules '(hereinafter referred to as the 'Madras HRCE Rules'). it/:.
2. According to the petitioner, the Government in exercise of power under Section 100 (2) (y)..VVof_:'the Madras HRCE Act to frame rules governing of service amongst othe.r.~~~..qoa.lifi'cVa'ti.o»ns' employment in temples Welfare dated 28.05.l952'*l.'.c4i:)'('*i..rig the.agej'v_,a's,vV"n'ot":less"V than 25 and not tofffhloldan office in the temples The as on the date of entitled the l3etitioner€'Suntil he attains the age th_'eWi\v4adras HRCE Act, stood repeale'dV--,:onvvth..=«_linto force of the Karnataka Rel'igV.ioiJs institutions and Charitable ' V:E'i*.dVoi.r§fvre*i,eriVt's Act, 1997 (hereinafter referred to as the i*i{ar'net'e*sl<a féiR1cE Act') with effect from 01.05.2003, neverthelvess the repeal and savings in Section 78 .prdvides for application of Section 6, 8 and 24 of the ' __:§<arnataka General Clauses AW99 thus, saving the condition of service provided under the old Act. It is the further contention of the petitioner that Act introduced a new classification of empioyee's..T'a:§F. Indoor and Outdoor Servants.pVrovidi'ngfit'he' of superannuation as 65 years respectively. It is the allegvatioyn of the*v.i§é_titioner"jthat"'A admittedly he heldithe _rpo_st{'j_of"-._Maaii/Hotticultural Assistant in the from service on attaining': agAeNa's'piéovided for in the the third respondent without _'issued the notice dated the petitioner that he«.yvou~!d standisuperannuated on attaining the age of ' V:€>U.,ye.a't*s ai~:i3o.oe.2oo9. Hence this writ petition. is opposed by the third respondent ..ingter*aiia admitting the fact that the petitioner was 4'_"1.__'Kjappointed as Maali/Horticultural Assistant, being an M "outdoor servant", was liable to retire on attaining the age of 60 years in terms of Rule 11(2)_yvi.of-..'_:'_the Karnataka Hindu Religious Institutions Endowments Rules, 2002 (hereienafytyerere'fe'r.red"as ' the 'Karnataka HRICE Rules'jA:;.V. add%Ait~ion,V,V contended that though the'*v.£X;'Vt':tyand Rulesj'v_wVere'stjruckl"V down as ultra viresfthe o'f'"'£ndvia, by a Division Bench of Writ Appeal N034-40/20HG_.S','fldéhsposedlh the State having filjedythe Apex Court, by moclvified by another order dated that no adverse/Dunitive act«i.on i'shallV"beV::tal<en with regard to the retirement ' age ofA_vA.rc.h'ak_as and indoor temple servants till further orders of-V'it_hi-E 'Court, z4{:'The'learned counsel for the petitioner while ";_p'oi--nAting out to the retirement age prescribed in the in
-(,m Madras HCRE Rules, contends that it was saved by the application of Sections 6, 8 and 24 of the Ka.rna:ta.!_<a General Clauses Act, 1899 as provided 78 of the Karnataka HRICE V learned counsel, the age of su'p.er:aAn"nuatio'n..of and outdoor servant of a 'treinple "as 'pro':/id~--e'd"'in' the"? Karnataka HRICE .R~u_l_es persons appointed after the of'_.the Karnataka HRICE Act to," rémrpifarlheestiliigavemea by the Madras HRCE Act and Rules, __5. xSmt';\/api-shavlli,'*..."~'learned counsel for the third res;po2.nde~vn.t tehaple seeks to sustain the order being fully justified and not calling for iln-t_erfe~re_njt:e. The learned counsel points out sub--rule ..(_2_) "of: Rule 11 of the Karnataka HRICE Rules to ""._VVCo~ri'tend that the petitioner being an outdoor servant ll/\ was bound to retire from service on 30.06.2009 on reaching 60 years of age.
6. Having heard the iearned coun'seivji'or' the parties, examined the provisions o'fA'i'a,w2_notic_e'dV'supra'; there is no dispute that the petit_ioner's_.'a.pp'oi'ntmein't'v0' to a post in the 3" respo'nden.tVV year 1967 was governed;....py_ASiehyrv::_i'r_i§§:«..C#.fiditions set out in Rule 4 (2) or-the Maaiae framed under Section HRCE Act more appropriatgeiiyhip:resci0*»ii§bi:nVg of entry into service as 2i3~._eyears of retirement as 65 years. TheMadras'iHR'CE~.v_Ru"i'es did not make a distinction amongst~..empi'oy=ee's, or classify employees as indoor 'forif'o!.ijtd:ooVi~i..:s'ervants, except to state that a person rn-ay office in the temple provided he is not ..iess..t'ii--an 25 years and not more than 65 years of age.
"".:VTi'l"£.Ai"S, as on the date of petitioner's entry into service, the condition of service governing retirement entitied him to continue in service until 65 years of
7. On the Corning into force of HRICE Act with effect rromgilo1g.os.2goo3l[gigaiidiiitfie. Karnataka HRICE Rules with effectsfrompl30.yi04.2:303;vg undoubtedly the employeles" in are classified as indoor "and Rule 11(2) prescril3_e--sv_.65 asretirement for indoor outdoor servant.
Karnataka HRICE Act, repeats' "Act and Rules while the proviso elnsiuresy-v.ap'p_l"ica~'bi|ity of Sections 6, 8 and 24 of tti'e5'Kz;fit:na.t.al<a"Gene'rai Clauses Act, 1899. The nature »v4diAs:c't3arged by the petitioner, classify him as an.__ou_tdoo.r'lservant, according to the 3"' respondent, .ywhic.hv..--i:'n my opinion is a pure question of fact, for it '~._Vdetermination after a full fledged trial. P:
8. Sections 6, 8 and 24 of the Karnataka General Clauses Act, 1899 provides for: (i) effect of repvea:'I-i.:b_(~wil) construction of reference to repealed enac*tmeAn"tsj"*and_
(iii) continuation of orders,.~~etc. enactments repealed and re-lenactied,T"'riespe.ctive.il:y'.:._ Thus by the application of'th}e--iafo.resa'id.Vp;rov»i'si'ons of"? the General Clauses~Act,_:'lt'h€;i--:':lf_i;Vpi'e_§l of"tii'ev: Madras HRCE Act and Rules privilege, Obligation or incurred under other words, the repeal by the Karnataka HRICE not abridge or modify the pe.ti§tion~ea"s nconditiovns of service under the Madras ' his detriment, but was saved entitling 'i1in:; to contcinue in service under the respondent No.3 teniplveguntil attaining 65 years of age. Even oitherwise the repealing enactment is not shown to __have expressly annulled the service conditions under H
--1()~ the Madras HRCE: Rules, and substituted by Rule 11(2) of the Karnataka HRICE Rules. Merely because.V_fa-.._:n'ew classification of employees into indoor and servants is introduced by the Karn»ataka.Vl9?lR'VC:'EE' ACf:_:anl'd it Rules, it does not imply that th1e,__c.o_ndition,As of the employees, appoint'edV""u,ndevr Act and Rules, stand'substlit'u'te§l',VVV'*"reducing" age of superannuation of 65 years to 60 years, 'rohfvsuperannuation of 65 Years lD.t 't'h'eTf«.:ci«rcu.§n"s_ta'nces, the order dated O2.§)_6.2{5U'9, 'I3.n:r1ve>A<tire~="":B of respondent No.3 informing the-9:3"',,p@t%tiVoznerxflthat'Vhe would retire on attaining 60 on 30.06.2009, is contrary to the condit§0~n,s,i'.,*ot service under the Madras HRCE Act and ..R;ules'v,.--entitling him to continue in service until 6' "'._at::a"ining the age of 65 years. if
10. In the result, this writ petition deserves to be aiiowed and it is accordéngiy allowed. dated 02.00.2009, Annexure-B of the third.fes00ti'de0"t--V.A is quashed.