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Showing contexts for: SUBRAMANIAN SWAMY in Arulmigu Vaithianathaswamy ... vs The Government Of Tamil Nadu ... on 11 April, 2014Matching Fragments
5. The learned Senior Counsel appearing for the petitioner would rely on the judgment of the Hon'ble Supreme Court reported in 2014 (1) CTC 763 [Dr.Subramanian Swamy and another v. State of Tamil Nadu and others], wherein the Hon'ble Supreme Court, after having elaborately dealt with the power of the Commissioner under Section 45 of the HR & CE Act has held that the said power cannot be exercised by the Commissioner unless the Government prescribes the circumstances/ conditions, upon which such appointment could be made.
7. Referring to the same, the learned Special Government Pleader would submit that the Commissioner has got power to appoint Executive Officer. He would further submit that the judgment in Dr.Subramanian Swamy's case (supra), has no application to the facts of the present case, because that was a case relating to 'Religious denomination', which enjoys a special status under Article 26 of the Constitution of India, whereas, the petitioner Temple is not a 'Religious Denomination' temple. He would further submit that in Dr.Subramanian Swamy's case (supra), the appointment of the Executive Officer came to be set aside on yet another ground, viz., the tenure of the Enquiry Officer had not been fixed. In this case, according to the learned Special Government Pleader, the proposal is to appoint an Executive Officer for a period of one year. Thus, none of the grounds in Dr.Subramanian Swamy's case (supra) are available for the petitioner in the present case. Therefore, according to the learned counsel, the writ petition is liable to be dismissed.
8. I have considered the above submissions.
9. In my considered opinion, the issue relating to the power of the Commissioner, HR & CE to appoint an Executive Officer is no more res integra in view of the elaborate judgment rendered by the Hon'ble Supreme Court in Dr.Subramanian Swamy's case. Before reading the said judgment, let us have a quick look into Section 45(1) of the HR & CE Act.
10. Section 45 (1) of the HR & CE Act reads as follows:-
"45.Appointment and duties of Executive Officers-(1) Notwithstanding anything contained in this Act, the Commissioner may appoint, subject to such conditions as may be prescribed, an executive officer for any religious institution other than a math or a specific endowment attached to a math."
14. So far as the next contention of the learned Special Government Pleader that the judgment in Dr.Subramanian Swamy's case (supra) relates to a temple established by a religious denomination and therefore, the same cannot be imported to the facts of the present case is concerned, the same is not tenable. The Hon'ble Supreme Court in Dr.Subramanian Swamy's case had no occasion to distinguish between Religious Denomination temple and any other public temple. The Hon'ble Supreme Court has comprehensively dealt with the power of the Commissioner under section 45 of the HR & CE Act.