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The temples with which we are concerned are Saivite and Vaishnavite temples in Tamil Nadu. Writ Petitions 70, s3, 437, 438, 439, 440 441, 442, 445 and 444/71 are filed by the Archakas, and I Writ Petitions 13 and 14/1971 are filed by the Mathadhipatis to whose Math some temples are attached. As, common questions were involved in all these petitions, arguments were addressed principally in Writ Petitions 13/1971 and 442/ 1971, and we are, assured by counsel for both sides that they cover the points involved In all the other petitions. The State Legislature of Tamil Nadu enacted The Tamil Nadu Hindu religious and Charitable Endowments Act, 1959 being (Tamil Nadu Act xxii of 1959) hereinafter referred to as the principle Act. It came into force on December 2, 1959. It was an Act to amend and consolidate the law relating, to the administration and governance of Hindu Religious an Charitable Institutions and Endowments in the State of Tamil Nadu. it applied to all Hindu religious public institutions and endowments in the we of Tamil Nadu and repeated several Acts which had previously governed the administration of Hindu Public Religious Institutions. It is sufficient to say here that the provisions of the Principal Act applied to the temples in the present Petitions and the petitioners have no complaint against any of its provisions. Section 55 of that Act provided for the appointment of office holders and servants in such temples, and section 56 provided for ;he, punishment of office-holders kind servants. Section 55, broadly speaking, gave the trustee of the temple the power to appoint the office-holders or servants of the temple and ;also provided that where the office or service is hereditary the person next in the line of succession shall be entitled to succeed. In only exceptional cases the trustee was entitled to depart from the, principles of next-in-the-line of succession, but even so, the, trustee was under an obligation to appoint a fit person to perform the functions of the office or perform the service after having due, regard to the claims of the members of the family, Power to make rules was given to Government by section 116 (2) (xxiii) and it was open to the Government to make rules providing for the qualifications to be possessed by the Officers and servants for appointment to non-hereditary offices in religious institutions, the qualifications to be possessed by hereditary 'servants for succession to office and the conditions of service of all such officers and servants. Under this rule making power the State Government made the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964. Under these rules an Archak or Pujari of the deity came under the definition of 'Ulthurai servant'. 'Ulthurai servant' is define as, a servant whose duties relate mainly to the performance of rendering assis- tance in the performance, of pujas, rituals and other services to the deity, the recitation of mantras, vedas, prabandas, the varams and similar invocations and the performance of duties connected with such performance of recitation. Rule 12 provided that every 'ulthurai servant', whether hereditary or nonhereditary whose duty it is to perform pujas and recite mantras, vedas, prabandams, thevarams and other invocations shall, before succeeding, or appoint to an office, obtain a certificate of fitness for performing his office, from the head of an institution imparting instructions in Agamas and ritualistic matters and recognised by the Commissioner, by general or special order or from the head of, a math recognised by the Commissioner, by general or special order, or such other person as may be designated by the Commissioner, from time to time, for the purpose. By this rule the proper worship in the temple, was secured whether the Archaka or Pujari was a hereditary Archaka or Pujari or not. Section 107 of the Act emphasized that nothing contained in the Act shall, save as otherwise provided in section 106 and in clause (2) of Article 25 of the Constitution, be deemed to confer any power or impose any duty in contravention of the rights conferred on any religious denomination or any section thereof by Article 26 of the Constitution. Section 106 deals with the removal of discrimina- tion in the matter of distribution of prasadam or theertham to the Hindu worshippers. That was a reform in the right direction and there is no challenge to it. The Act as a whole, it is conceded, did not interfere with the religious usages and practices of the temples.

"Subject to the provisions of the Tamil Nadu Temple Entry Authorization Act 1947, the trustee of every religious institution is bound to administer its affairs and to apply its funds and properties in accordance with the terms of the trust, the usage of the institution and all lawful directions which a competent authority may issue in respect thereof and as carefully as a man of ordinary prudence would deal with such affairs, funds and properties if they were his own."

We have found no difficulty in agreeing with the learned Advocate General that section 28( 1 ) of. the Principal Act which directs the trustee to administer the affairs of the temple in accordance with terms of the trust or the usage of the institution, would control the appointment of the Archaka to be made by him under the amended section 55 of the Act. In a Saivite or a Vaishnavite temple the appointment of the Archaka will have to be made from a specified, denomination, sect or group in accordance with the directions of the Agamas governing those temples. Failure to do ski would not only be contrary to section 28 (1) but would also interfere with a religious practice the inevitable result of which would be to defile the image. The question, however, remains whether the trustee, while making appointment from the specified denomination, sect or group in accordance with the Agamas, will be bound to follow the hereditary principle as a usage peculiar to the temple. The learned Advocate-General contends that there is no such invariable usage. It may be that, as a matter of convenience, an Archaka's son being readily available to perform the worship may have been selected for appointment as an Archaka from times immemorial. But that, in his submission, was not a usage. The principle of next-in-line of succession has failed when the successor was a female or had refused to accept the appointment or was under some disability. In all such cases the Archaka was appointed from the particular denomination, sect or group and the worship was carried on with the help of such a substitute. It, however, appears to us that it is now too late in the day to contend that the-hereditary principle in appointment was not a usage. For whatever reasons, whether of convenience or otherwise, this hereditary principle might have been adopted, there can be no doubt that the principle had been accepted from antiquity and had also been fully recognised in the unamended section 55 of the Principal Act. Sub-section (2) of section 55 provided that where the office or service is hereditary, the person next in the line of succession shall be entitled to succeed and only a limited right was given under-sub-section (3) to the trustee to appoint a substitute. Even in such cases the. explanation to sub-section (3) provided that in making the appointment of the substitute the trustee should have, due regard to the claims.of the members of the family, if any. entitled to the succession. Therefore, it cannot be denied as a fact that there are several temples in Tamil Nadu where the appointment of an Archaka is governed by the. usage of hereditary succession. The real question, therefore, is whether such a usage should be regarded either as a secular usage or a religious usage. If it is a secular usage, it is obvious,legislation would be permissible under Article 25(1) (a) and if it is a religious usage it would be, permissible if it falls squarely under sub- section 25 (1) (b).

It is true that a priest or an Archaka when appointed has to perform some religious functions but the question is whether the appointment of a priest is by, itself a secular function or a religious practice. Mr. Palkhivala gave the illustration of the spiritual head of a math belonging to a denomination of a Hindu sect like the Shankaracharaya and expressed horror at the idea that such a spiritual head could be, chosen by a method recommended by the State though in conflict with,the usage and the traditions of the particular institution. Where, for example, a successor of a Mathadhipati is, chosen by the Mathadhipati by giving hit" mantra-deeksha or where the Mathadhipati is chosen by his immediate disciples, it would be, he contended, extra-ordinary for the State to interfere and direct that some other mode of appointment should be followed on the ground of social reform. Indeed this may strike one as an instrusion in the matter of religion. But, we are affraid such an illustration is inapt when we. are considering the appointment of an Archaka of a temple. The Archaka has never been regarded as a spiritual head of any institution. He may be, an accomplished person, well versed in the Agamas and rituals necessary to be performed in a temple but he does not have the status of a spiritual head. Then again the assumption made that the Archaka may be chosen in a variety of ways is not correct. The Dharam-karta or the Shebair makes the appointment and the Archaka is a servant of the temple. It has been held in K., Seshadri Aiyangar v, Ranga Bhattar(1) that even the position of the hereditary Archaka of a temple is that of a servant subject to the disciplinary power of the trustee. The trustee can enquire into the conduct of such a servant and dismiss him for misconduct. As a servant he is subject to the discipline and control of the trustee as recognised by the unamended section 56 of the Principal Act which provides "all office-holders and servants attached to a religious institution or in receipt of any emolument or perquisite therefrom shall, whether the office or service is hereditary or not, be. controlled by the trustee, and the trustee may, after following the prescribed procedure, if any, fine, suspend, remove or dismiss any of them for breach of trust, incapacity, disobedience of orders, neglect of duty, misconduct or other sufficient cause." That being the position of an Archaka, the act of his appointment by the trustee is essentially secular. He owes his appointment to a secular authority. Any lay founder of a temple may appoint the Archaka. The Shebaits and Managers of temples exercise essentially a secular function in choosing and appointing, the Archaka. That the son of an Archaka or the son's son has been continued in the office from generation to generation does not make any difference to the principle of appointment and no such hereditary Archaka can claim any right to-the office. See : Kali Krishna Ray v. Makhan Lal Mookerjee(2); Nanabhai Narotamdas v. Trimbak Balwant Bhandare(3) and Maharanee Indurjeet Keoer v. Chundemun Misser(4). Thus the appointment of an Archaka is a secular act and the fact that in some temples the hereditary principle was followed in making the appointment would not make the successive appointments anything but secular. It would only mean that in making the appointment the trustee is limited in respect of the sources of recruitment. Instead of casting his net wide for selecting a proper candidate, he appoints the next heir Of the last holder of the office. . That after his appointment the Archaka performs worship is no ground for holding that the appointment is either a religious Practice or a matter of religion.