1. Originally, the Writ Miscellaneous Petition was disposed of as the respondents in the writ petition, inspite of several adjournments and enough time having been granted, did not file any counter. In fact, on 31.7.1998 time was granted for filing counter by four weeks. Again, on 28.8.1998 further time was granted by two weeks. On 15.10.1998 matter was finally adjourned by four weeks for filing counter. Even after that there was no counter filed and on 12.11.1998 the following order came to be passed:
'Inspite of several adjournments for filing counter, till date no counter has been filed. Accepting the allegations made in the petition for direction, there will be an order as prayed for in the direction petition.'
The direction petition was for grant of pension to the members of the first petitioner/Sangam pending disposal of the main writ petition. Thereafter, the respondents woke up and came up with an application for review in RA.No.60 of 1998. The Review Application as well as the main writ petition were taken up by consent for decision, (the reference is as per the rank or nomenclature in the writ petition.)
2. The first petitioner/Sangam is a Trade Union, represented by its Secretary, and the second petitioner is a member of the first petitioner/Sangam. The prayer is for a certiorarified mandamus to call for the records relating to the order of the second respondent in O.Mu.No.73013/96-II, dated 10.10.1996, quash the same, and to direct the respondents to grant pension to the members of the first petitioner/Sangam including the second petitioner as granted to the Archakas and Village Temple Poojaries.
3. The allegations in support of the writ petition are as follows:
The petitioner/Sangam is a registered Trade Union. The Accountants, Clerks, Record Clerks, Typists, Peons, Archakas, Maniam, Parisaragar, Madapalli, Kaliyachi, General Assistants, Florists, Odhuvaar, Day and Night Watchmen, Pattuppartuthi and Erangkollivannan, who are all the employees of temple in Ambasamudram Taluk, are the members of the first petitioner/Sangam. These employees have no specific working hours and their duties and responsibilities, apart from being onerous, have religious sanctity attached to them. For their jobs, they take only the salary and no additionalremuneration is paid to them. Their salary is paid from and out of the funds of the temple with the prior approval of the second respondent. Their service is non-pensionable and their conditions of service are governed by the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, thereinafter referred to as the Act, and the Rules framed thereunder. Since they are not paid any pension after their retirement, these servants find it difficult to maintain themselves.
The first respondent, by G.O.Ms.346, Commercial Taxes and Religious Endowment Department, dated 1.10.1992, decided to sanction pension of Rs.300 per mensem to those archakas who had retired from service on attaining the age of 60 and who had served for over 20 years in any of the temples in Tamil Nadu. It is mentioned in the Government Order that the institution of Archakas literally means those who have traditionally inherited the reciting of Vedas and Agamas in the sanctum sanctorum of the temples at Kalapoojas and who have the proficiency and rich experience in reciting Vedas and Agamas and conducting various yagams, homams, and kumbabishekams. It is mentioned in the Government Order that the Government has decided to grant pension in order to preserve, protect and promote the tradition of archakas and to give encouragement to the persons who have been carrying on this ancient, lofty tradition. A scheme was formulated and termed as Tamil Nadu archakas Pension Scheme, 1992 thereinafter referred to as the Pension Scheme, 1992 and in terms of Rule 4 of the said Scheme, a Sanction Committee has to be constituted and the second respondent as the Chairman is to receive application in the prescribed format and sanction the same. The applications were to be routed through the Deputy Commissioner and Assistant Commissioners concerned. The scheme has also laid down the powers of the Sanction Committee, the eligibility for pension, the amount of pension, withholding and cancellation of pension and method of payment among other things. It is further stated that in the first instance, the Scheme was to be implemented to 500 archakas (300 Archakas who had worked in Siva Temples and 150 Archakas who had worked in Vaishnavite temples). By proceedings dated 26.4.1993 of the second respondent, 500 Archakas were selected and given pension. Out of 500, 75 archakas were from Tirunelveli Kattabomman District. Taking clue from this Government Order, the Tamil Nadu Village temple poojaries Peravai represented to the Government that they should also be paid monthly pension on their retirement. By G.O.Ms.334, Commercial Taxes and Religious Endowment Department, dated 9.9.1996 the first respondent sanctioned pension to 1500 village temple poojaries. This order did not give any specific reason as to why pension was being sanctioned to village temple poojaries, while thus sanctioning the pension to Archakas and village temple poojaries, the Government had failed to consider the claims of the other employees of the temples who are members of the petitioner/Sangam. These employees discharge vital duties and in fact the good and efficient administration of a temple is as a result of the combined effort of all the employees - Archakas, poojaries, parisaragars, general assistants, florists etc. In fact in the absence of Archakas, parisaragars take over the functions as they also possess knowledge in vedas and the chanting of mantras and sastras. When such is the position, it is highly unreasonable, arbitrary and discriminatory to deny the relief of pension to the other members of the petitioner/Sangam. The members of the petitioner/Sangam are full time servants of the temple. Their posts are permanent and substantive. The temples in which they are working are under the control of the second respondent and are bound by the directions issued by the first respondent. They satisfy all the basic tests for being entitled to pension in GovernmentService, namely, emoluments are paid by the Government, they are permanent employees, and they are appointed by the Government permanently. The only difference between the members of the petitioner/Sangam and the government servants is that the appointments of the members of the petitioner/Sangam are under the control of the second respondent, but, even then, the second respondent is bound by the directions issued by the first respondent, though the funds are to be drawn from the temple sources. The Government in G.O.Ms.318, Education Department, dated 9.2.1977 sanctioned retirement benefits to the staff of the Tamil Nadu Iyal Isai Nadaga Mandram and the Tamil Nadu Ovium Nunkalai Kuzhu employees. There was no justifiable reason as to why the members of the petitioner/Sangam were denied the benefits. The second petitioner, who was working as Parisaragar in Ambasamudram, by representation dated 10.8.1996 requested the second respondent to sanction pension. However, this application was rejected by the second respondent by proceedings No.78013/96-II, dated 10.10.1996 slating that the Government have sanctioned pension only to Archakas, odhuvars, musicians and those who perform Devaparayanam and no pension is payable to parisaragars and other employees of the temple. This order is being impugned in the writ petition.
4. A counter has been filed in the writ petition by the Joint Secretary to the Government, Tamil Development Culture and Religious Endowment Department, representing the first respondent and the counter is common for both the respondents. The contents of the counter are as follows:
From the provisions of Sections 55 and 56 of the Act, it would be clear that all temple employees including the members of the petitioner/Sangam are only under the control of the Trustees of the respective temples and they are not government servants. It is not correct to state that the members of the petitioner/Sangam who claimed to be servants of the various temples are full time employees of the temples. Except the duties attached to the posts, such as Archakas and odhuvars, the duties attached to the other employees have no religious sanctity. The duties of parisaragars are merely of a menial nature, such as lighting the deepam, cleaning the Moolasthanam, fetching the water from the river, giving theertham to the devotees, opening and closing the doors, etc. An Archakar to whom the pension is given under the Special Scheme is required to be a person, who should have rich experience in reciting vedas, agamas etc. in temples and who should have been recognised and accepted as Archakars by the general public and only such a person is entitled to the pension under the Pension Scheme, 1992. None of the employees mentioned in para 2 of the petition, except Archakas, can be said to have been recognised and accepted as Archakas by the general public. The Sanction Committee, constituted under clause 4 of the Pension Scheme, 1992 consisting of experts, has to select the eligible Archakas for grant of pension after scrutinising the applications.
As regards the payment to the employees of the temple, it is to be noted that there is no specific provision in the Act requiring the prior approval of the second respondent. The appointing authority for the employees of the temple is only the Trustee of the respective temples and no statutory approval of the respondent is necessary for such appointments. The decision by the Government to grant pension to Archakas, odhuvars and village poojaries under special scheme is only to preserve, protect and promote the institution of Archakas and odhuvars, who had traditionally inherited the reciting of vedas and agamas or singing of ancient Tamil devotional songs in the temples withtheir purely acquired skill. There is also no master and servant relationship between the temple employees on the one hand and the respondents on the other so as to compel the latter to pay them the pension. The respondents are not legally bound under the Act or any other law to pay pension to the employees of the temple, who are members of the first petitioner/Sangam. The grant of pension to Archakas and odhuvars is pursuant to the policy by the Government in view of the special merits of those persons. There is no legal right vested to insist for the payment of pension to the members of the petitioner/Sangam and there is no corresponding legal duty on the part of the respondents for issue of a mandamus. The payment of pension to Archakas, odhuvars and village temple poojaries is given from the government funds and not from the funds of the temple in which those persons had served. Though it is termed as pension, in actual practice it is an ex-gratia granted in appreciation of their service, which is to stand as an incentive to their future generation in carrying over the traditional treasures by heritage without being abandoned. These persons form a distinct class by themselves entirely different from the other employees. The concept of Article 14 of the Constitution in that equals cannot be treated with unequals and unequals cannot be treated as equals.
As regards the village temple poojaries, their position is similar to Archakas and odhuvars. Though they are not mandatorily required to possess vedic language as in the case of Archakas, they are also performing religious duties according to the traditional forms and usages which are similar to that of the Archakas. Their position is also different from that of the other employees. The grant of pension to Archakas, odhuvars and village temple poojaries pursuant to the government order is not based on any administrative grounds or in the interest of good and efficient administration of the temple, but, it was only with a view to protect, preserve and promote the traditionally trained and experienced persons well versed in reciting of vedas, agamas or divine songs in Tamil and who have got rich experience and inheritance from their ancestors from generation to generation. The members of the petitioner/Sangam are not government servants and they cannot be equated with government servants particularly when both of them have separate service Rules. The rejection of the application of the second petitioner for payment of pension by the second respondent has been done properly. Most of the employees of the temples in Ambasamudram Taluk are only part-time employees and their service have not been regularised so far. The Act and the Rules do not provide for any pensionary benefits to the employees of the religious institutions. If the prayer of the petitioner/Sangam is conceded, then the temple employees in the other areas of the State are also likely to challenge the same on the ground of discrimination under Article 14 of the Constitution.
5. A reply affidavit has been filed on behalf of the petitioners stating as follows:-
It is not correct to state that the second petitioner has only administrative control over the temples. Though there is a Trust Board in respect of a temple in most temples, it is only appointed by the second respondent in charge of the affairs of the temples. The over all control in respect of matters pertaining to the temples coming under the provisions of the Act is vested only with the second respondent. Section 12 (1) of the Act states that not only the Commissioner, Deputy Commissioner, the Assistant Commissioner are servants of the Government, but, also other Officers and servants, including the Executive Officers, are servants of the Government. Section 55 (1) of the Act gives power to appoint office holders and servants in religious institutions withthe Trustees on whom the power of disciplinary control has also been vested in terms of 56 (1) of the Act.
The expressions other officers and servants used in Section 12(1) and the expression Office holders and servants in Section 55(1) of the Act shall have the same meaning as both the expressions occurring in the same statute and no different or contrary meaning could be given as no such intention has been expressed in the Act. The provisions of the Act have construed the members of the petitioner/Sang am as Government Servants. Section 21 of the Act gives enormous powers to the Commissioner. Alt the decisions taken by the Trustees are on the directions of the second respondent, or with the prior approval of the second respondent who in turn acts on the directives issued by the Government from time to time. The matters relating to scale of pay, nature of duties and responsibilities, payment of Dearness Allowance, festival advance, notifying the vacancies, calling for applications for appointments, granting of exemption from possession of minimum educational qualification or granting of age exemption and matters connected thereto, have all been carried on by the second respondent who in turn had acted upon the directions and orders of the first respondent. Therefore, the members of the petitioner/Sangam are treated as government servants.
The service conditions of the members of the petitioner/Sangam are governed by the provisions of the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964 (hereinafter referred to as the Service Rules). The State Service Rules define Ulthurai Servants and Outdoor Servants. The pay and emoluments of the petitioner/Sangam are as contemplated under Rules 14 of the Service Rules and the payment of gratuity on retirement is as contemplated under Rule 26 and the Provident Fund is paid under Rules 32. Except for classification, broadly as Ulthurai and outdoor, there is no further dichotomy prescribed under the Rules to enable the archakas to be given a special privilege among the category of Ulthurai Servant. It is not correct to state that the duties of the members of the petitioner/Sangam do not have any sanctity attached to the posts. In the absence of any special classification under the Rules as regards the Archakas, undoubtedly, the Archakas Pension Scheme is discriminatory and violative of Article 14 of the Constitution. The Archakas are in indigent circumstances. The other servants are also in similar circumstances, finding it difficult to have means of support. Statutory approval is required in respect of appointments made in temple service. In fact, one Chandrasekara Pattar was terminated from service by an order dated 28.10.1997 by the Executive Officer of Sri Kasinatha Swami Temple, Ambasamudram, solely on the ground that a statutory approval had not been obtained from the second respondent prior to appointment. Even the Trustees of the temple are appointed by the department for a limited period. Pongal Bonus is given to the members of the petitioner/Sangam based on the direction of the second respondent. The Government also pay a sum of Rs.60,000 to the family of a person dying in harness as it is done in the cases of other government servants. It cannot be said that merely because the decision to grant pension to archakas, odhuvars and village temple poojaries is a policy decision, there can be immunity for the same being challenged. The classification sought to be brought about in the case of archakas, odhuvars and village poojaries is one which is not contemplated under the Rules. The fact that the first respondent has granted pension to staff of Tamil Nadu Iyal Isai Nadaga Mandram and Tamil Nadu Ovia Nunkalai Kuzhu would show that the action of the respondents is not based on reasonable classification. The term used is pension and it is not open to the respondents to say that it is ex-gratia payment. The distinction made is unreasonable and based on no intelligibledifferentia. In fact, some of the persons given pension are daily rated employees. When it is admitted by the respondents that the village poojaries are not mandatorily required to possess vedic knowledge, it would show that the grant of pension to the village temple poojaries is without any basis and therefore unreasonable, in case, this Court accepts the claim of the petitioner/Sangam, the same has to be extended to all the employees of the temples and it is not correct to state that the same will affect the generality of Temple Servants Rules applicable to all the temple employees working in the temples all over Tamil Nadu.
6. Mr.Sivagnanam, learned counsel for the petitioners, submitted that a reading of the provisions of the Act and the Rules would clearly spell out that the first respondent has pervasive control over the scheme of things and it cannot be denied that the members of the petitioner/Sangam are entitled to be treated on par with Archakas, odhuvars and village temple poojaries. The learned Counsel took me through Sections 12(2)(b), 21, 23, 26(3), 27, 32, 35(2), 36, 42, 43, 47(1)(c), 53, 55(1), 56 and 77 of the Act. The learned counsel particularly stressed that the provisions should not be read in isolation and have to be read and understood as a composite whole.
The learned counsel placed very heavy reliance on a judgment of a Division Bench of the Kerala High Court in Re:Temples in the erstwhile Malabar area O.P. No.214/1992-S . In that case, the Division Bench found that public interest required that the administration of the temples in the erstwhile Malabar area and the living conditions of the employees of those temples required a probe and appropriate steps should be taken to remedy the evil and injustice. The learned counsel referred to paras 6, 10, 13, 22, 23, 26, 28, 29, 33, 34, 36, 46, 52, 53, 57, 61 and 62. The learned counsel laid particular stress on the fact that the grant of pension to village poojaries, in any event, is no! supported by any acceptable criteria, as even according to the stand of the respondents they are not well versed, either in the vedas, agamas or even in tamil devotional songs. According to the learned counsel, discrimination is writ large and suitable remedial measures should be immediately taken and the members of the petitioner/Sangam should be granted pension on their retirement.
7. Opposing the case of the petitioner, Mr.T.R. Rajagopalan, learned Additional Advocate General, submitted that the temple employees are more than the number required and the Stale has no direct control over the employees. The governance is not by the State. It is not correct to state that the employees of the temple have the trappings or government servants. The learned Additional Advocate General sought to distinguish the decision of the Kerala Bench by submitting that that was a case where there was no control and there were various deficiencies in the administration of the temples in the Malabar region and the Court was justified in giving directions to bring about a solution to the problems of the temple servants in the Malabar region. According to the learned Additional Advocate General, prayer cannot at all be sustained. . The learned Additional Advocate General further submitted that archakas, odhuvars and village poojaries performed duties which have religious sanctity while the posts of Assistants, Clerks, Record Clerks, etc. have no religious sanctity attached to their posts. By no stretch orimagination, the members of the petitioner/Sangam be equated to those performing religious duties. There is no legal duty enjoined on the State Government to sanction pension to the members of the petitioner/Sangam.
8. In reply, Mr. Sivagnanam, learned counsel for the petitioners, submitted with particular reference to the preamble of the Act and Section 12(2) and 55(1) that the members of the first petitioner/Sangam are government servants and therefore they are entitled to have a direction for grant of pension. Under the Pension Scheme 1992, an archaka is defined as to mean and include any person who had traditionally inherited the reciting of Vedas and Agamas in the sanctum santorum of the temple at Kalapoojas and who had proficiency and rich experience in reciting Vedas and Agamas and conducted various Yagams, Homams and Kumbabishekams in Samy, Amman, Vinayakar, Murugan, etc. temples and who performed samprokshanam in respect of Vaishnavite temples and who had been recognised and accepted as archaka by the general public of the area or the temple authorities or any person qualified under a recognised vedic institution or acknowledged as a Vedic Scholar. Under the Pension Scheme, a Sanction Committee is to be constituted, consisting of the Commissioner, Hindu Religious and Charitable Endowments Department, as the Chairman, a scholar in Saiva Veda Agamas, a scholar in Vaishnava Veda Agamas, Deputy Secretary/Joint Secretary to Government, Commercial Taxes and Religious Endowments Department, Personal Assistant to Commissioner, who will be the convener of the Committee. The non-official member is to be nominated by the Government for a period of three years. The Sanction Committee is to scrutinise the pension application forms of eligible persons and make recommendation to the Commissioner, Hindu Religious and Charitable Endowments Department, for sanction of pension. The Commissioner is to be the Administrator of the Scheme and to issue pension order based on the recommendation of the Sanction Committee. The expenditure will be debited to '2250.00 Other Social Service-800, Other expenditure-1. Non-plan AQ, Grant of Pension to Archakas in indigent position - 27. Pensions (D.P. Code No.2250.00 800 AQ 2700)'. The approval of the legislature was to be obtained in due course and pending approval, the expenditure was to be met by an advance from the Contingency Fund. The Commissioner, Hindu Religious and Charitable Endowments (Administration) Department, was to apply for the advance in the prescribed pro forma by the finance (Budget-I) Department, for the sanction of advance from Contingency Fund. It is not necessary to refer to other Rules in the pension scheme.
9. If, perhaps, the scheme had stopped with Archakas, there would not have been any provocation for the present writ petition. The Archakas are given a special status in the hierarchy of things. They are to be well versed in Vedas and Agamas or Tamil devotional songs to be eligible for pension. This may be treated as a reasonable classification. But then, at the instance or the village temple poojaries, the Government condescended to pass another Government Order in G.O.Ms.No.334, dated 9.9.1996 which, in my view, isthe provocation for the writ petition. The Government Order refers to two communications, from the Commissioner, Hindu Religious and Charitable Endowments to the Government, and the Government Order itself runs as follows:
'The Tamil Nadu Village Temple Poojaries Peravai has represented among other things that the Village Temple Poojaries should be paid monthly pension, on their retirement. The Government have examined their request and they have decided to sanction pension to 1500 (One thousand and five hundred only) Temple Poojaries. The pension payable to each temple Poojari should be Rs.500 per month (Rupees five hundred only).
2. Orders will be issued separately, framing a scheme for pension to Tamil Nadu Village Temple Poojaries.
3. The expenditure on account of the pension sanctioned in para 1 above shall be debited to a new sub-head detailed head of account to be opened under 'Demand No.12', as detailed below.
'2250.00-Olher Social Services 800-Other expenditure-I, Non-Plan-AV, Pension to Temple Poojaries (DPC 2250.00, 800 AV 2700).
The other portions of the Government Order are identical to the one issued earlier for the archakas. The second petitioner as also the first petitioner, represented by its President, gave representation to the Government, seeking among other things pension to all the employees. The second respondent, by an order dated 10.10.1996, rejected the claim stating that retired Archakas, odhuvars, musicians and other persons who are chanting Vedas ought to receive pension on the basis of their qualification and other employees like Parisaragar cannot be paid pension.
10. The title of the employees and the nature of their duties are all set out in an annexure to the claim made by the petitioners. It cannot be said that the services of the other employees are dispensable and that the temples can do without their services. For Archakas and odhuvars to do their duties a proper support from the other employees is absolutely necessary. It cannot also be said that only the Archakas on retirement will not have means for their maintenance. It applies to all the employees. The Government in the matter of grant of pension to the village poojaries have not spelt out any particular reason for granting this largesse to them. Clause 6 of the Scheme provides for the conditions to be satisfied for pension eligibility, they are: (1) the person should have been a temple poojari and he should have registered his service with the Assistant Commissioner, Hindu Religious and Charitable Endowments concerned; (2) he must have put in a service of at least 20 years in a temple; (3) he should be above 60 years; and he had no other satisfactory means of livelihood. Needless to say that the qualifications prescribed are too general in nature and any servant in the temple will satisfy the criteria. There is no difference peculiar to the class of village temple poojaries.
11. In the course of arguments, the learned Additional Advocate General submitted that the financial burden will be enormous if all theemployees of all the temples are to be made eligible for getting pension. It is very sad that most of the temples in Tamil Nadu which have large extents of properties endowed to them are finding it difficult even to maintain themselves to perform the poojas enjoined by the Agamas and Sastras. All because of the defiance of tenants and encroaches squatting on temple properties. Many temples are not in a position to make ends meet and the proceedings taken against these persons take their own time to come to an end. Even in cases where liability is quantified, some beneficial legislation intervenes and the tenants go scot-free. Though this aspect of the problem has been high lighted by different for a on various occasions, it eludes a solution. It is woeful commentary on the state of affairs.
12. Be that as it may, we have to see whether the petitioner's prayer in the writ petition has to be granted.
13. A news item in the Hindu dated 27.12.1991 under the caption 'A raw deal for temple staff ?' carried the story that there were nearly 1300 temples in the erstwhile Malabar area having 9000 employees, governed by the Hindu Religious and Endowments Act, of the above, only 60 temples were financially viable and the rest were in a pathetic condition in as far as daily poojas and living standards were concerned, that the employees were getting as low as Rs.6 per month, while the Manager was getting Rs.2000 per month, that successive Governments though were put on notice about/the state of affairs with these temples, no effective action had been taken with regard to the problems of the temples and the employees, and that employees of the Travancore and Cochin Devaswoms enjoyed regular salary, welfare funds and pension, while their counter parts in the erstwhile Malabar area, doing the same work, and placed in the same condition, were not getting a living wage. It was further stated in the Article that to look after the temples in the erstwhile Malabar area on the lines of the temples under the Travancore and Cochin Devaswom Boards, a separate Board should be set up and then only it would improve the conditions of the temples and better the service conditions of the employees of the temples. This news item was treated as Public Interest Litigation by the Kerala High Court. After hearing elaborate arguments, the Kerala Bench gave an illuminative and exhaustive judgment dealing with all aspects with particular reference to the management of the temples in erstwhile Malabar area. The position in Tamil Nadu, though there is a regular Hindu Religious and Charitable Endowment Department, presided over by a Commissioner in the rank of I.A.S. Officer is there, still the problems faced by the temple the working conditions and the service conditions of the staff, leave much to be desired. A reading of the various provisions of the Act clearly shows that the Government has pervasive control over the affairs of the various temples. The Preamble of the Act says that the Act is to amend and consolidate the law relating to the administration and governance of Hindu Religious and Charitable Institutions and Endowments in the State of Tamil Nadu. It talks about administration and governance of temples, mutts, etc.
A trustee is defined in Section 6(22), as follows:
'Trustee means any person or body by whatever designation known in whom or in which the administration of a religious institution is vested, and includes any person or body who or which is liable as if such person or body were a trustee.'
Sections 7 and 7-A talk about Constitution of Advisory Committee and District Advisory Committee, respectively.
Section 8 lists the Authorities under the Act, they are the Commissioner, Joint Commissioners; Deputy Commissioners; and Assistant Commissioners.
Section 12(a) runs as follows:
'The Commissioner, Joint Commissioner, Deputy Commissioners, Assistant Commissioners and other officers and servants including executive officers or, religious institutions employed for the purposes of this Act shall be servants of the Government and their salaries, allowances, pensions and other remuneration shall be paid in the first instance out of the consolidated fund of the State. The cost of auditing the accounts of religious institutions shall also be paid in the first instance out of the Consolidated Fund of the State.
Sub-Section (2) runs as follows:
'The Commissioner shall, out of the Tamil Nadu Hindu Religious and Charitable Endowments Administration Fund, Repay to the Government sums paid by the Government under subsection (1).
(b) The Commissioner shall recover from the religious institution concerned the salaries, allowances, pensions and other remuneration paid to the executive officers of religious institutions and credit the amount so recovered to the fund mentioned in Clause (a).
(c) (i) For the purpose of pension or other remuneration payable to any executive officer serving immediately before the date of the commencement of this Act and retiring on or after that date, the Government may take into account the service of such officer before that date, subject to Such conditions as may be prescribed;
(ii) The Commissioner may recover from the religious institution concerned also the portion of the pension of other remuneration attributable to the service of such executive officer as is mentioned in sub-clause (i) before the date of the commencement of this Act.
Under Section 14(2-A) the Assistant Commissioner is to exercise the powers conferred and discharge the duties imposed on him by this Act or the rules made thereunder in respect of -
(i) all temples situated in his division other than temples included in the list published under Section 46.
(ii) and (iii) - omitted.
Under Section 21, the Commissioner is given powers to call for records and pass orders, -He may call for and examine the record of any Joint, Deputyor Assistant Commissioner, or of any trustee of a religious institution other than a math or a specific endowment attached to a math in respect of any proceeding under this Act not being a proceeding in respect of which a suit or an appeal to a Court is provided by this Act or in respect of which an application for revision has been passed under Section 21-A to the Joint Commissioner or Deputy Commissioner and is pending Disposal by him. (....) to satisfy himself as to the regularity of such proceeding or the correctness legality or propriety of any decision or order passed therein.
Section 23 provides that subject to the provisions of the 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.
Under Section 24, the Commissioner has power to enter the premises of any place of worship for the purposes of exercising any power conferred for discharging any duty imposed by the Act, or the rules made thereunder. If such officer is resisted, he can complain to the Magistrate and get help as may be necessary to enable him to exercise such power or discharge such duty.
Under Section 26(3) if any question arises as to whether a trustee has become subject to any of the disqualifications mentioned in sub-section (1), the question shall be referred for the decision of the Joint/Deputy Commissioner.
Under Section 26(4), if a hereditary trustee becomes subject to any of the disqualifications mentioned in sub-section (1), the Joint Commissioner or the Deputy Commissioner may supersede the trustee.
Under Section 27, it is stated that the trustee of a religious institution shall be bound to obey all lawful orders issued under the provisions of this Act by the Government, the Commissioner, the Joint Commissioner, the Deputy Commissioner or the Assistant Commissioner.
Under Section 28, the Trustee is bound to administer the affair of the temple and to apply its fund 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.
Section 29 requires that the religious institution is to prepare and maintain a register in such form as the Commissioner may direct showing several things. Sub-Section l(c) of Section 29 requires the names of all offices to which any salary, emolument or perquisite is attached and the nature, time and conditions of service in each case. Under Section 29(2) the register has to be prepared, signed and verified by the trustee of the institution concerned or by his authorised agent and submitted by him to the Commissioner directly in the case of a math, and through the Assistant Commissioner in other cases within three months from the date of commencement of this Act of from the founding of theinstitution, as the case may be, or within such further period as may be allowed by the Commissioner or the Assistant Commissioner.
Under Section 32, the Trustee is required to furnish accounts, returns, reports, etc. to the Commissioner.
Section 33 provides for inspection of property and documents of the religious institutions.
Under Section 34 any exchange, sale or mortgage and any lease for a term exceeding five years of any immovable property belonging to, or given or endowed for the purposes of, any religious institution shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution.
Under Section 35(2), the trustee is to incur expenditure for securing the health safety, etc. of pilgrims, disciples or worshipers and for the training of archakas, etc. shall be guided by such general or special instructions as may be given by the Commissioner.
Section 36 provides for utilisation of surplus funds which can be done only with the previous sanction of the Commissioner and subject to such conditions and restrictions as may be prescribed.
Section 42 forbids the Office-holders and servants of religious institutions or other person from having possession of the jewels or other valuables belonging to the religious institutions except under such conditions and safeguards as the Commissioner, may, by general or special order, direct. This is notwithstanding anything contained in any scheme settled or deemed to have been settled under this Act.
Under Section 43, only the Commissioner can sanction compromising of legal proceedings.
Section 47(1)(c) states that every Board of Trustees constituted under clause (a) or clause (b) shall consist of not less than three and not more than five persons of who one shall be a member of the Scheduled Castes or Scheduled Tribes.
Section 53 provides for power to suspend, remove or dismiss trustees by the Government, Commissioner, Deputy Commissioner or the Assistant Commissioner, as the case may be.
No doubt, Section 55(1) provides that appointment of office holders and servants in religious institutions can be filled up by the trustees. However, as pointed out by Mr.Sivagnanam. learned counsel for the petitioners, this Section should not be read in isolation.
Section 56 provides for punishment of office holders and servants in religious institutions by the trustee and the office holder or servant thus punished by a trustee may within one month from the date of the receipt of the order, appeal against the order of the Joint Commissioner or the Deputy Commissioner.
Section 77 provides for transfer of lands appurtenant to or adjoining religious institutions prohibited except in special cases and it is only theCommissioner who can sanction the lease or mortgage with possession or granting of licence for the occupation of any such land or space as is mentioned in sub- section (a) and situated outside the precincts of a religious institution for any purpose other than a purpose mentioned in proviso to sub-section (1).
14. Way back in 1863, the Religious Endowments Act came to be passed to serve as a sentinel on the guardians of endowments and the English concepts of trust were introduced. Over the century more Acts came to be passed to discipline the custodians in their administration of endowed properties. The tentacles have proliferated and now we have an Act which is all pervasive in its hold and ubiquitous in its reach with the Government pulling the strings as the super puppeteer. The survey of the various provisions of the Act made in the previous paragraphs clearly bears this out.
15. The term 'temple' means a place, by whatsoever designation known, used as a place of public religious worship and dedicated to or for the benefit of or used as of right by a community or any section thereof as a place of public religious worship Jagannath v. Satya Narain, .
16. The origin of the temples in the form of structure is shrouded in mystery. Gautama's Dharma Sutra, fixed roughly about 500 years before Christ, refers to a temple of God in several places. We do not know the images worshipped in that temple.
17. But then we need images, as plausibly reasoned by Dr.Radhakrishnan and which is referred to in the Kerala judgment -
'Man is anthropomorphic and is inclined to conceive God in vivid and pictorial form. He cannot express his mental attitude except through symbolism and art. However inadequate the symbols may be as expressions of the real, they are tolerated so long as it suggests the right stand point. Realising as it does the force of the lower forms of worship. Hinduism has developed a religious atmosphere permeated by the highest philosophic wisdom as well as symbolic worship round which much glorious art has gathered. It has room for all men of all grades of cultural equipment and religious instinct. It is idle to stifle the impulses of the child by breaking its playthings, simply because we are grown up and do not find any need for them.'
18. Distinct forms have been ascribed to the Gods and temple worship has been ordained as certain means of attaining salvation. Agama Sastras and Thanthras prescribing rules, guidelines and rituals for construction of temples, consecration of deities, conduct of worship and removal of pollution developed.
19. Chanting of vedic hymns sanctified the installed deities. Vedattin mandirattal ven rnanalum Sivamahi'
As pointed out by the Sage Kanchi '..the Vedas, the spiritual life they ordain and the holymen who exemplified that ideal in their lives, constitute the very basis of the temple, not merely as a structure inbrick and mortar, but as a religious institution making for the spiritual education of the people'. Temples have acquired a hallowed place in the life of the believer.
20. It is but appropriate that the 'Archakas' who perform the rituals in the temples must be well versed in 'Vedas', 'Agamas' and 'Pasurams'. They have a very significant role to play in the temples. But then temples need the services of lesser people.
21. As an expression of gratitude to the power that created all things, we make offerings we do Neivethyam. Depending on the practice in individual temples, different kinds of food are offered to the deity. There are kitchens attached to the temple manned by paricharakars (cooks) for preparing offerings to be made to the deity. These are all part of the rituals and without the cooks doing their job, the rituals relating to offerings cannot be gone through.
22. Similarly, the temple requires other servants for bailing out water for keeping the temple precincts spic and span and to regulate the devotees. These servants are a must for the proper maintenance of the temple. It was in this context that the Kerala High Court in the judgment already referred to thought it fit to direct the Government of Kerala to prepare a scheme to improve the living conditions of the employees in Malabar area, to probe into and take steps to remove injustice. No doubt, as pointed out by the learned Additional Advocate General, the inequality in the service conditions between the employees of temples attached to Travancore and Cochin Devaswoms on the one hand and the employees of temples in Malabar on the other were attempted to be removed by the Kerala Bench. But, that is not all, the Court held that all the servants of the temples in Malabar region were to be treated on par with those in the Travancore and Cochin Devaswoms control area. The relevant paragraphs in the judgment are 10, 13, 22, 23, 26, 28, 29, 33, 34, 36, 46, 52, 53, 57, 61 and 62. The Bench considered in the original petition before it as to whether the employees of the temples in Malabar deserved a better deal and, if so, what should be the basis for the same. It took all the employees into consideration and did not espouse the cause of, either the Archakas or the Namboodiris alone. Some of the employees did functions like making of garlands for the deity, cleaning temple vessels, and cleaning the places in and around the sanctum sanctorum. The Bench addressed itself to whether a direction could be given to the Trustees of the various temples to revise the pay scales of employees, whether the Government had any responsibility in the matter of providing living wages of the employees and whether the Government could disclaim liability to make the requisite provisions for the wages of the employees. The Bench referred to the decision of the Supreme Court in All India Imam Organisation v. Union of India, where the relief sought for was a direction to the Central and State Wakf Boards to treat the petitioners (Imams) as employees of the Board and to pay them basic wages to enable them tosurvive. The various Wakf Boards who got themselves impleaded in that original petition disputed the manner of appointment, the right to receive any payment and absence of any relationship of master and servant. The Wakf Board further contended that they had nothing to do either with the appointment of the Imams or their working. After referring to some of the provisions of the Wakf Act, the Supreme Court observed that the principal functionary to undertake the community worship is the Imam and the objective and purpose of every mosque being community worship and it being the obligation of the Board under the Act to ensure that the objective of the Wakf is carried on, the Board could not escape from its responsibilities for proper maintenance of religious service in the mosque. Mosques were Wakfs and were required to be registered under the Act over which the Board exercised control. The Supreme Court turned down the argument that the Board had no control over the mosque. While observing that the absence of any provision in the Act or the Rules providing for appointment of Imam or laying down the conditions of their service might be because they were not considered as employees, the Supreme Court held that it could not be disputed that due to change in social and economic set up, they too needed sustenance. As to who should pay the remuneration of the Imams and how much, the Supreme Court observed that the Wakf Board could not escape from its responsibility as the Mutawallis under Section 36 of the Act were under the supervision and control of the Board. The Imams were appointed by the Mutawallis. A contention was raised before the Supreme Court that the financial position of the Wakf Boards was such that they could not meet the obligations of paying the Imams as they were being paid in some States, Repelling this contention, the Supreme Court held -
'If the Boards have been entrusted with the responsibility of supervising and administering the Wakf, then it is their duty to harness resources to pay those persons who perform the most important duty, namely, of leading community prayer in a mosque, the very purpose for which it is created.'
The Supreme Court ultimately gave directions for preparation of a scheme to give relief to the Imams. The Supreme Court further directed that the scheme framed by the Central Wakf Board should be implemented by every State Board. The Kerala Bench rejected the stand of the Government that the powers conferred on the Wakf Board under the Wakf Act were different and distinct from the powers conferred before it under the Hindu Religious And Charitable Endowments Act. The Bench considered the various provisions in the Hindu Religious and Charitable Endowments Act and provisions of the Wakf Act and came to the conclusion that there was no difference in the matter of supervision and control of the religious institutions by the Hindu Religious and Charitable Endowment Department and the Wakf Board in the case of Wakfs. It also relied on the Preamble to the Hindu Religious and Charitable Endowments Act which suggested that the Act was intended not only for the better administration of the Hindu Religious and Charitable Institutions, but also their governance. 'Governance' meant to rule withauthority. The Department, according to the Bench, was the predominant force as far as the temples in Malabar were concerned. The principles laid down by the Supreme Court in the Imam's case were sqaurely applied to the facts of the case before it. The Bench further rejected the case made on behalf of the Government that the grievances of the employees could be redressed only consistent with the financial position of the Government. The Bench observed that it was not open either to the Government or to the Department to throw up their hands in despair and say that they were not possessed of sufficient funds to meet the demands of the temple employees, that the Department which was authorised by the Act to administer and given the endowments had thus a duty to harness the resources and to pay living wages as suggested by the Supreme Court in the Imam's case.
23. No doubt, as pointed by the learned Additional Advocate General, the Kerala High Court proceeded on the principle, that the employees of the temples in the Malabar region were doing identical work as the employees under the Travancore and Cochin Devaswoms. There was wide disparity between the salaries of the employees of the temples in Malabar region doing identical work with the salaries given to the employees of the Devaswom Board and the Bench invoked the principle of 'equal pay for equal work' and directed the Government of frame a scheme as was done in the Imam's case by the Supreme Court.
24. It is interesting to note that in the Imam's case the Supreme Court went to the extent of framing the scheme for giving benefit to the Imams who were not appointed under the Wakf act and it was also found that they were not employees. The case on hand is on a stronger ground. The employees other than Archakas, Odhuvars and village temple poojaries are all appointed by the Trustees over whom the Department and the Government have over all control. The Trustees can be pulled up, they can be proceeded against. The appointments made by the Trustees have to be approved by the Department. Mr.Sivaganam has also referred to an instance in which the services of one Chandrasekara Pattar were terminated because his appointment had not been approved by the Authorities under the Act.
25. The files relating to G.O.Ms.No.591/CR & RE Department, dated 15.4.1988, G.O.Ms.No.346/CR & RE Department, dated 1.10.1992 and G.O.Ms.Nos.333 & 334/CR & RE Department, dated 9.9.1996 have been made available by the respondents. The first two Government Orders relate to grant of pension to Odhuvars, Pattar, etc. The third Government Order relates to grant of pension to Village Temple Poojaries. The Village Temple Poojaries Peravai had made a representation to the Government making several demands. The representation was forwarded to the Commissioner, Hindu Religious and Charitable Endowments Department, who on 29.2.1996 gave his remarks on the various demands. One particular demand makes significant reading. It is demand No.1, which says that the hereditary Poojaries must be given monthly salary depending on their basic requirements.The remark is in case, this demand is conceded, it will entail payment of salaries to servants of temples which are not under the control of the department. This remark clearly shows that the Government always had control over the temples and their affairs and its hegemony, over the temples under its control, is complete in all respects. It has already been noticed that the Supreme Court in Imam's case had gone to the extent of holding that it was the duty of the Government and the Wakf Board to frame a scheme to benefit the Imam, who did not satisfy the definition of a servant of the mosque. It is also to be noticed that the Government of Kerala introduced a scheme for creating a fund for providing benefits to the employees who were also required to contribute. The provision has been made in this scheme for payment of pension and gratuity as well as medical benefit and financial aid for the marriage of the daughters of the employees. Provision has also been made for payment of a maximum amount of Rs.1000 to any member who requires hospitalisation on account of any accident occurring while on duty. This was done to ameliorate the grievances of the temple employees in Malabar area and as there was no welfare legislation for the benefit of those employees, The Government of Kerala put forward the contention that the welfare schemes had been introduced for the benefit of employees of temples in Malabar area and therefore the Public Interest Litigation in the Kerala High Court had to fail. This contention was rejected by the Bench of Kerala High Court in the following terms:
'The scheme envisaged thereunder is no doubt beneficial to the employees, but that is not sufficient to ameliorate their present grievances or to enable them to have a sustenance at present. The constitution of the welfare scheme is therefore no reason to deny the employees living wages as suggested in the foregoing paragraphs.'
The case on hand is a converse one. The 'other' employees in the temples are getting salary like the Archakas, Odhuvars and Village Temple Poojaries. But, their fate, after retirement hangs in balance. It is therefore eminently necessary that a welfare scheme on the lines of the welfare schemes initiated for Archakas, Odhuvars, and the village temple poojaries must be framed with expedition.
26. The learned Additional Advocate General made a point that these were policy decisions and the Court should not interfere under Article 226 of the Constitution of India. The decisions touching on this point are:
1. Subhash Photographs v. Union of India, 1993 supp.(3) SCC 323
2. Premium Granites v. State of Tamil Nadu,
3. State of Rajasthan v. Sevanivatra Karamchari Hitkari Samiti,
4. Tata Iron & Steel Company Ltd. v. Union of India, , and
5. State of Rajasthan v. Sevanivatra Karamchari Hitkari Samiti,
27. No doubt, it is settled position that judges have nothing to do with either policy making or the carrying out of policy and that policy decisions cannot be subject to scrutiny by Courts under Article 226 of the Constitution. But, there are exceptions as for example when the policy is arbitrary or violative of law enunciated under Articles 14 and 16 of the Constitution infringing fundamental rights in which event the Court is not powerless. In my view the facts of the instant case warrant a departure from the established position. The other servants of the temples cannot be discriminated against. They have their own significant role to play in the scheme of things and the affairs of the temple. May be their role is not as important as that of the Archakas, Poojaries or Odhuvars, but then, the temple cannot do without their services. There is discrimination writ large. In State of Maharashtra v. Mannbhai Pragaji Vashi, it has been held by the Supreme Court that in a fit case, High Court can direct the executive to carry out even the directive principles.
28. In these circumstances, I am inclined to give a direction to the Government to frame yet another scheme to provide pension to 'other' servants of the temples and the excuse of financial constraints is not available to the Government as has been pointed out by the Supreme Court in the Imam's case. It is also not open to the Government to say that though the payment is called 'pension' it is only 'ex-gratia'.
29. In these circumstances, the following order, in my view, will meet the ends of justice.
(1) The Government of Tamil Nadu and the Hindu Religious and Charitable Endowments Department shall prepare a scheme on the lines of the scheme prepared for the Archakas, Odhuvars, Vedaparayanas, Divya Prabandham Paduvors, Araiyars and Musicians, for giving retirement benefits to the 'other' servants of temples of Tamil Nadu under the administration and governance of the Hindu Religious and Charitable Endowment Department, within a period of six months from today.
(2) It is the sole responsibility of the respondents to mobilize the funds for meeting the financial commitment by enforcing recovery proceedings from the recalcitrant tenants sqatting on the properties on the various temples without paying the lease amounts or from other sources, and,
(3) The Scheme to be implemented within a period of one year thereafter.
30. Both, the Review Application and the Writ Petition, arc disposed of as above. No costs. WMPs.No.5087 & 5372 of 1997 are closed.