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Arulmigu Vaithianathaswamy Devasthanam Rep. by Its Hereditary Trustee Nagapattinam District Vs. the Government of Tamil Nadu, Rep. by Its Secretary and Others - Court Judgment

LegalCrystal Citation
CourtChennai High Court
Decided On
Case NumberW.P. Nos.13918 & 13919 of 2012 & M.P. Nos.1 to 3 of 2012
Judge
AppellantArulmigu Vaithianathaswamy Devasthanam Rep. by Its Hereditary Trustee Nagapattinam District
RespondentThe Government of Tamil Nadu, Rep. by Its Secretary and Others
Advocates:For the Petitioner: R. Krishnamoorthy, Senior Counsel for S. Sounthar, Advocate. For the Respondents: R1 to R3, S. Kandasamy, Special Government Pleader (HR& CE Dept.), R4, S. Duraisamy, R5, T.L. Rammohan, Senior Counsel for A.V. Arun, Advocates.
Excerpt:
constitution of india – article 162 – the hindu religious and charitable endowments act – section 55, section 55, section 116, section 86 – “pay and emoluments” – tamil nadu religious institutions ( officers and servants ) service rules 1964 – rule 5a, rule 14 – rule 2(g) – two writ petitions which are involving common issues – parties are also same – litigation relating to the pay and emoluments of the employees of the temple – petitioners are seeking to quash the order of the government with regard to pay and emolument – contention is that the government with regard to pay and emolument – contention is that the government has no power to issue any direction – temples are administrated by the.....(prayers: w.p.no.13918 of 2012:- petition filed under article 226 of the constitution of india praying to issue a writ of certiorari fied mandamus calling for the records of the 3rd respondent relating to his proceeding in na.ka.1098/2012/aa2 dated 24.04.2012 and also his consequential order dated 03.05.2012 and to quash the same and to further direct the 3rd respondent to approve the proposal dated 07.02.2012 sent by the petitioner. w.p.no.13919 of 2012:- petition filed under article 226 of the constitution of india praying to issue a writ of certiorari calling for the records of the 1st respondent relating to government order in g.o.ms.no.257, tamil development, culture, religious endowments and information department, dated 30.06.2010 and to quash the same.) common order: 1. since.....
Judgment:

(Prayers: W.P.No.13918 of 2012:- Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari fied Mandamus calling for the records of the 3rd respondent relating to his proceeding in Na.Ka.1098/2012/Aa2 dated 24.04.2012 and also his consequential order dated 03.05.2012 and to quash the same and to further direct the 3rd respondent to approve the proposal dated 07.02.2012 sent by the petitioner.

W.P.No.13919 of 2012:- Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari calling for the records of the 1st respondent relating to Government Order in G.O.Ms.No.257, Tamil Development, Culture, Religious Endowments and Information Department, dated 30.06.2010 and to quash the same.)

Common Order:

1. Since almost common issues are involved in these two writ petitions and the parties are also same, both the writ petitions were heard together and they are disposed of by means of this common order.

2. This is a litigation relating to the pay and emoluments of the employees of the temple in question. On 06.01.2012, while disposing of the writ petition in W.P.No.1465 of 2011 relating to the same issue, this court made an opening remark that the same was the third round of litigation between the priest and the employees on one hand and Arulmigu Vaithianathaswamy Devasthanam on the other hand over the fixation of pay and emoluments payable to the officers and servants of the petitioner temple. Therefore, undoubtedly, this is the fourth round of litigation on the same issue. This litigation has got its own long history which may be summarised as under.

3. The petitioner is a temple. Sri-la-Sri Gurumaha Sannithanam of Dharmapuram Adheenam is the Hereditary Trustee of the said temple. The petitioner/temple is governed by The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 [hereinafter referred to as "the HR & CE Act"]. As of now, there are roughly about 162 employees working in the petitioner temple. In respect of the pay and emoluments to be paid to the employees, there has been a long standing dispute. In the previous round of litigation, the proceedings of the Commissioner, Department of The Hindu Religious and Charitable Endowments in Rc.No.64864/2010/H3, dated 29.11.2010 and the proceedings of the Joint Commissioner, Hindu Religious and Charitable Endowments, Mayiladuthurai in Rc.No.7925/2009/B2 dated 18.01.2011 were under challenge. Those two proceedings came to be passed in pursuance of the order passed by this Court in W.P.No.21916 of 2009 wherein this court, by order dated 30.09.2010, directed the respondents viz., The Commissioner and the Joint Commissioner, Hindu Religious and Charitable Endowments to consider the representation of one Mr.D.M.Vaithiyanatha Gurukkal and forty others who were employees of the petitioner temple wherein they had requested to consider their grievance in respect of fixation of pay and emoluments in the light of G.O.Ms.No.257, Tamil Development, Culture, Hindu Religious Endowments and Information Department, dated 30.06.2010. The 1st respondent by his proceedings in Rc.No.64864/2010/H3, dated 29.11.2010 directed the petitioner herein to fix the pay and emoluments of the employees in terms of G.O.Ms.No.257 cited supra. Accordingly, the 2nd respondent herein passed a consequential order. Those two orders were earlier challenged in W.P.No.1465 of 2011. Finally, a learned single Judge of this Court, on 06.01.2012, while disposing the writ petition in para 23 of the order has issued the following direction:-

"23.In the result, the Writ Petition is disposed of, with the following directions:

(i) The petitioner is directed to submit its proposal to the respondent No.2 by fixing the salary of the employees. While doing so, it is open to the petitioner to contend that it is a senior grade Temple, with relevant materials. The petitioner can also place the materials by relying upon the report of the learned Commissioner apart from giving its objections to it.

(ii) The percentage ratio fixed for different grades of Temples in various Government Orders by the Government is hereby upheld in the light of the discussions made above. However, it is made clear that any salary to be fixed for the employees cannot go beyond the percentage ratio and should be in accordance with Rule 5-A of the Tamil Nadu Hindu Religious Institutions (Officers and Servants) Service Rules, 1964.

(iii) In so far as the contentions raised by the petitioner before the learned Commissioner to the effect that the gold received is a capital receipt and therefore, the same cannot be included in the income, the same is rejected as this Court does not find any difference between the contribution made by the general public in cash or kind. However, the receipt of the gold and its conversion should be treated as income of the petitioner corresponding to the fasli year alone.

(iv) The contention of the petitioner before the learned Commissioner that the income will have to be arrived at only after deducting the expenditure cannot be accepted except to the extent of the positive finding given by the learned Commissioner in his report. It is trite law that income is different from expenditure. Hence, it is not open to the petitioner to contend that it is entitled to spend all the income and whatever that is left alone should be treated as income for the purpose of fixing the salary.

(v) While considering the proposal to be submitted by the petitioner, the second respondent is directed to consider the entire materials including the objections raised before the learned Commissioner. The second respondent will have to consider the nature of grade that would be applicable in the case of the petitioner by taking note of the relevant materials.

(vi) The petitioner shall submit the proposal, within a period of four (4) weeks from the date of receipt of a copy of this order.

(vii) The second respondent while considering the proposal to be submitted by the petitioner will have to decide the same in accordance with law, the directions issued by this Court and by taking into consideration of the report of the learned Commissioner. The second respondent will have to fix the salary on the facts available.

(viii) The second respondent is directed to pass appropriate orders, within a period of eight (8) weeks from the date of receipt of the proposal from the petitioner. In the event of making any alterations, omissions or additions in the proposals to be submitted by the petitioner, the respondent No.2 has to issue a notice to the petitioner before doing so. Till the entire exercise is over, the interim arrangement entered into in pursuant to the orders of this Court will have to be continued by the petitioner."

However, in the said writ petition, since the Government was not a party, the validity of G.O.Ms.No.257 cited supra was not gone into by this Court. In pursuance of the above direction issued by this Court, the petitioner temple, thereafter submitted a proposal on 07.02.2012 to the 3rd respondent herein. Having received the same, the 3rd respondent called for certain further explanations which also the petitioner temple complied with. Finally, the 3rd respondent by his proceedings in Na.Ka.No.1098/2012/B2 dated 03.05.2012 issued an order fixing the pay and emoluments to be paid to the employees of the temple. The said order is under challenge in W.P.No.13918 of 2012. In W.P.No.13919 of 2012, the petitioner temple challenges the Government Order in G.O.Ms.No.257 dated 30.06.2010.

4. Let me now, at the first, consider the validity of G.O.Ms.257, Tamil Development, Culture, Religious Charitable Endowments and Information Department, dated 30.06.2010 which is under challenge in W.P.No.13919 of 2012.

5. The crux of G.O.Ms.No.257 cited supra is that the employees working in the temples, which are under the control of the Department of The Hindu Religious and Charitable Endowments [in short, HR & CE Department] in the state of Tamil Nadu, shall be paid pay and emoluments on par with the Government servants based on the recommendations of the VI Pay Commission. According to the petitioner temple, in respect of temples which are administered by the hereditary trustees, the Government has no such power to issue any direction fixing the pay and emoluments of the officers and servants of the said temples.

6. In this regard, Mr.R.Krishnamoorthy, the learned senior counsel appearing for the petitioner temple would take me through Section 55 of the HR & CE Act which reads thus:-

"55. Appointment of office-holders and servants in religious institutions. - (1) Vacancies, whether permanent or temporary, among the office-holders or servants of a religious institution shall be filed up by the trustee in all cases.

Explanation.- The Expression "office-holders or servants" shall include archakas and pujaries.

(2) No person shall be entitled to appointment to any vacancy referred to in sub-section (1) merely on the ground that he is next in the line of succession to the last holder of the office.

(3) Omitted

(4) Any person aggrieved by an order of the trustee under sub-section (1) may, within one month from the date of the receipt of the order by him, appeal against the order to the Joint Commissioner or the Deputy Commissioner."

7. The learned senior counsel would submit that as has been clearly laid down in Section 55 of the HR & CE Act, it is the absolute power of the trustees in all cases to fill up the vacancies of the office-holders and servants, either permanent or temporary. Thus, according to the learned senior counsel, fixing the number of vacancies is absolutely within the domain of the trustees.

8. Nextly, the learned senior counsel would refer to Rule 14 of the Tamil Nadu Hindu Religious Institutions (Officers and Servants) Rules, 1964 [hereinafter referred to as "the Service Rules"]. Rule 14 of the said Rules read thus:-

"14. Pay and Emoluments of Officers and servants.- (1) The pay and emoluments in cash and in kind, of each officer or servant shall be in accordance with a schedule or establishment framed by the trustee or trustees and approved by the Assistant Commissioner in the case of institution under his jurisdiction and by the Joint or Deputy Commissioner in the case of to other institution. The Trustee or trustees shall not alter the schedule without the previous permission of the Assistant Commissioner of the Joint or Deputy Commissioner as the case may be;

Provided that this rule shall not apply to Maths and specific endowments attached to Maths.

(2) Travelling Allowance and Daily Allowance payable for the journeys performed by the officers and servants shall be in accordance, with the the Tamil Nadu Travelling Allowance Rules for the time being in force. The Executive Officer and in the absence of any such officer, the trustee or the chairman of the Board of Trustees, as the case may be , shall be the controlling and countersigning authority in respect of their Travelling Allowance Bills.

(3) Advance pay shall not be paid to any officer and servant except with the previous permission of the Assistant Commissioner or the Joint, or Deputy Commissioner, as the case may be."

9. Referring to the above, learned senior counsel would submit that the pay and emoluments of the officers and servants of the petitioner temple shall be in accordance with the schedule or establishment framed by the trustee, however, subject to the approval of the Joint Commissioner. Apart from Rule 14, according to the learned senior counsel, there is no other provision in the HR & CE Act or in the Rules relating to fixation of Pay and Emoluments of the office-holder and servants of the temple. [ The learned senior counsel would however refer to Section 86 of the HR & CE Act for a different purpose].

10. The learned senior counsel would lastly submit that G.O.Ms.No.257 has been issued by the Government making it obligatory on the part of the petitioner temple to fix the pay and emoluments in consonance with the recommendations of VI Pay Commission, which according to the learned senior counsel, is wholly without jurisdiction and, therefore, the said Government Order is liable to be quashed.

11. But, the learned Special Government Pleader appearing for the respondents 1 to 3 would stoutly oppose this writ petition. According to him, the power of the Government flows from Article 162 of The Constitution of India to issue administrative instruction to the trustees in respect of fixation of pay and emoluments of the office-holders and servants of the temples. He would also refer to Section 116 of the HR & CE Act in support of his contention.

12. The learned Special Government Pleader would further submit that as per Section 86 of the HR & CE Act, the trustees are bound to submit budget for every year which includes pay and emoluments of the office-holders and servants of the temples. It is his further contention that as per Section 86 (3) of the HR & CE Act, the Joint Commissioner has got power to make modifications in the same and to approve the budget. He would, however, fairly submit that before making any such modification, alteration or omission, etc., the Joint Commissioner should afford sufficient opportunity to the trustees.

13. The learned Special Government Pleader would nextly submit that since the Government Order in G.O.Ms.No.257 has been issued in complement of the statutory provision and statutory rule, the same cannot be found fault with in any manner so as to interfere with the same. He would further submit that Rule 5A has been newly introduced, according to which, the pay and emoluments of the office-holders and servants of the temples are to be regulated by means of a schedule. He would, however, submit that the schedule prepared by the trustee is to be approved by the Joint Commissioner. If once the same is approved, then, it will be in force and the trustee will not be at liberty to make any alteration without the approval of the Joint Commissioner. Here in this case, according to the learned Special Government Pleader, the Government Order, which is mandatory in nature, issued in exercise of the executive power of the Government conferred in Article 162 of The Constitution, binds the respondents and, therefore, by having regard to the said Government Order and the income of the temple, the impugned order [impugned in W.P.No.13918 of 2012] came to be passed. He would also submit that this order came to be passed in accordance with the direction issued by this Court.

14. The learned counsel appearing for the 4th respondent would adopt the arguments of the learned Special Government Pleader.

15. The learned counsel appearing for the 5th respondent would supplement the arguments advanced by the learned Special Government Pleader. But, he would also submit that in exercise of the power conferred under Article 162 of The Constitution of India, the Government has issued G.O.Ms.No.257 and, therefore, it cannot be said that it is wholly without jurisdiction. He would further submit that G.O.Ms.257 is not imperative and it is only in the nature of guideline issued by the Government in the larger interest of servants of the temples. He would lastly submit that the order of the 3rd respondent impugned in W.P.No.13918 of 2012 has been made as per the direction issued by this Court in the earlier round of litigation and further, even if G.O.Ms.No.257 is quashed, the impugned order of the 3rd respondent will survive, as it is independent. Therefore, according to the learned counsel, both the writ petitions are liable to be quashed.

16. I have considered the above submissions and also perused the records carefully.

17. Section 55 of the HR & CE Act speaks of appointment of office-holders and servants in religious institutions. A reading of the said provision, as extracted above, would go a long way to show that the trustee of a temple has been given absolute power to make appointment of office-holders and servants. There is nothing in the said provision to indicate that the Government has got power to issue any administrative instruction or make any order in respect of the appointment of the office-holders and servants.

18. The learned counsel appearing for the respondents would make a faint attempt to rely on Section 116 (2) (xxiii) of the HR & CE Act. Section 116 of the HR & CE Act deals with the rule making power of the Government. Of course, under sub-section (2) (xxiii), the Government has got power to make any rule regulating the conditions of service of office-holders and servants of the temples. As per sub-section (3) of Section 116, all rules made and all notifications issued under Section 116 shall, as soon as possible after they are made or issued, be placed on the table of the Legislative Assembly and shall be subject to such modifications by way of amendment or repeal as the Legislative Assembly may make either in the same session or in the next session. At no stretch of imagination, it can be said that G.O.Ms.257 is a rule issued by the Government under Section 116 of the HR & CE Act. Indisputably, it is only an administrative instruction.

19. Now, turning to Rule 14 of the Tamil Nadu Hindu Religious Institutions (Officers and Servants) Service Rules, 1964, admittedly, the same has been issued by the Government in exercise of rule making power under Section 116 (2) (xxiii) of the HR & CE Act. Rule 14 of the Service Rules, as extracted above, states that it is imperative on the part of the trustee to frame a schedule in respect of the pay and emoluments of the officers and servants of the temple. Such a schedule will be valid if only the same has been approved by the Assistant Commissioner in the case of institutions under his jurisdiction and by the Joint or Deputy Commissioner in the case of other institutions. The said provision further mandates that the trustee shall not alter the schedule without the prior permission of the Assistant Commissioner, Joint or Deputy Commissioner, as the case may. As rightly contended by the learned senior counsel for the petitioners, a cursory perusal of Rule 14 will make it abundantly clear that the power to fix the pay and emoluments of the officer-holder and servants has been vested only with the trustee of the temple. Of course, the schedule framed by the trustee needs to be approved by the Joint Commissioner in the case of the instant temple. This rule also does not indicate that the Government has got any power to issue any guideline or direction either for the trustee or for the authorities like the Assistant Commissioner, Joint or Deputy Commissioner in respect of pay and emoluments of the officer-holders and the servants of the temple. In other words, it is within the exclusive domain of the trustee, however, subject to the approval of the authority namely, Assistant Commissioner, Joint or Deputy Commissioner, as the case may be. The learned counsel for the respondents would agree that apart from these provisions, there is no other provision in the HR & CE Act which would at least go to show that the Government has got power to issue any administrative instruction or make any order in respect of the pay and emoluments of the officer-holders and servants of the temple.

20. It is in this situation, the learned Special Government Pleader would submit that though it is true that neither the statute nor the rule has empowered the Government to issue any guideline or to make any order in respect of pay and allowances of the officer-holders and servants of the temple, such power flows to the Government from Article 162 of the Constitution of India.

21. The learned senior counsel for the 5th respondent would rely on a judgement of the Hon'ble Supreme Court in Rai Sahib Ram Jawaya Kapur v. The State of Punjab, AIR 1955 SC 549. In that case, the argument before the Constitution Bench of the Hon'ble Supreme Court was whether the executive power under Article 162 of the Constitution of India cannot be invoked by the executive to issue any instruction or make any order in respect of any subject included in the State List or Concurrent List without making any legislation on the said subject. In other words, the contention was that it is only when the Parliament or the State Legislature has legislated on certain items pertaining to their respective lists, that the Union or the State executive, as the case may be, can proceed to function in respect of the said subject.

22. While negativing the said contention, the Constitution Bench of the Hon'ble Supreme Court has held as follows:-

"On the other hand, the language of article 162 clearly indicates that the powers of the State executive do extend to matters upon which the state Legislature is competent to legislate and are not confined to matters over which legislation has been passed already."

23. For a moment, I wish to state that it is not the argument of the learned senior counsel for the petitioner that the executive power under Art 162 of the Constitution cannot be invoked by the State in the absence of any legislation made on the subject by the State. Per contra, it is the argument that when there is a legislation on the particular subject governing the field, the executive power of the Government is not available to issue any circular or guideline or make any order so as to over ride any of the provisions of the statute or rule framed thereunder.

24. The learned counsel for the 5th respondent would rely on the judgement of the Hon'ble Supreme Court in Union of India v. H.R. Patankar, 1984 (Supp) SCC 359. In the said judgement, the Hon'ble Supreme Court has held that even when there are statutory rules in force, if the same are silent on any particular subject, it is competent for the Government to issue an executive order to fill in the lacuna in the statutory rules. Relying on the said judgement, the learned senior counsel for the 5th respondent would submit that in the case on hand, since the HR & CE Act as well as the Service Rules do not regulate the pay and emoluments of the officer-holders and the servants of the temples, the Government, with a view to supplement the Act and the rules, has issued G.O.Ms.257. Though attractive, I find it very difficult to accept the said contention. It is too well settled that if there is any lacuna in any rule, in order to fill up the same, so as to achieve the object of the Act, certainly, the Government can give instruction or issue administrative order in exercise of its power under Article 162 of the Constitution. But, at the same time, such instruction or order shall not be in conflict with any of the provisions of the statute or Rules either expressly or impliedly. In this regard, we may have a look into the judgement of the Hon'ble Supreme Court in State of Madhya Pradesh v. Yogendra Shrivastava, (2010) 12 SCC 538 relied on by the learned senior counsel for the petitioner. In para 13 of the said judgement, the Hon'ble Supreme Court has held as follows:-

"13. The contention that the executive orders issued from time to time or the appointment letters issued in accordance with such executive orders will prevail over the Rules cannot be accepted. When there is conflict between the statutory rules and the executive orders, the statutory rules will prevail (see K.Dayanandalal v. State of Kerala, (1996) 9 SCC 728, Tamil Nadu Housing Board v. N.Balasubramanium, (2004) 6 SCC 85, State of Karnataka v. KGSD Canteen Employees' Welfare Association, (2006) 1 SCC 567 and Punjab National Bank v. Astamija Dash, (2008) 14 SCC 370). Executive orders cannot be made or given effect in violation of what is mandated by the Rules. If appointment letters provide for payment of NPA which is not in consonance with the Rules, they can be corrected or set right by the tribunal/courts."

25. Thus, it is crystal clear that no instruction or order can be issued by the Government under Article 162 of the Constitution which will be in conflict with any statutory provision or rule framed thereunder.

26. In the case on hand, it is the contention of the learned senior counsel for the petitioner that G.O.Ms.No.257 is in direct conflict with Section 55 of the HR & CE Act and Rule 14 of the Service Rules. I find every force in the said argument. In this regard, my reasons are as follows. There is no express provision in the Act regulating the pay and emoluments of the officers and servants of the temple. But, the Government has got rule making power in respect of the same as provided in Section 116 (2) (xxiii) of the HR & CE Act. The Government has rightly issued Tamil Nadu Hindu Religious Institutions (Officers and Servants) Rules in exercise of the said power. Rule 14 of the Service Rules is the appropriate provision which governs the subject relating to the pay and emoluments of the office-holders and servants of the temple. It clearly mandates that the pay and emoluments of the office-holders and servants shall be in accordance with schedule or establishment framed by the trustee. The said schedule or establishment is to be approved by the competent authority namely, the Assistant Commissioner, Joint or Deputy Commissioner , as the case may be. As I have already concluded, this rule does not give any power to the Government to issue any guideline or circular in respect of the pay and emoluments of the office-holders and servants of the temple. Rule 14 clearly and explicitly governs the subject. But, G.O.Ms.No.257 states that the pay and emoluments of the office-holders and servants of the temple shall be in consonance with the recommendations of VI Pay Commission which has been implemented in the case of Government servants. Thus, there can be no second opinion that G.O.Ms.No.257 is in conflict with Rule 14 of the Service Rules. G.O.Ms.No.257 cannot survive simultaneously with Rule 14 of the Services Rules since it is in direct conflict with Rule 14. Thus, G.O.Ms.No.257 is not in complement of Rule 14 and as a matter of fact, it is only in contradiction to the same.

27. The learned counsel for the 5th respondent would, however, submit that Rule 5-A which was introduced by way of amendment gives power to the Government to issue such order. For the sake of understanding, let us extract Rule 5-A of the Tamil Nadu Hindu Religious Institutions (officers and Servants) Service Rules, 1964 which reads thus:-

"5-A.SCHEDULE OF ESTABLISHMENT FOR EVERY RELIGIOUS INSTITUTION.- (1) Every religious institution shall have a schedule of Establishment duly prepared by the Executive authority of such institution and approved by the Commissioner. The Schedule of establishment shall contain the details of permanent and temporary posts, both outdoor and indoor, in all categories, with details of sanction order issued by the Commissioner and the grades of pay and other allowances admissible to such posts. The Executive Authority shall not alter the schedule without the previous permission of the Commissioner;

(2) Every religious institution shall limit the expenditure on salaries and establishment within the percentage norms as may be fixed by the Government from time to time.

(3) No new posts, permanent and temporary shall be created or filled up in any religious institution without the sanction of the Commissioner. If any such post or posts are created without the sanction of the Commissioner, the expenditure on account of such post shall be deemed to be unauthorised one and liable for surcharge proceedings under the provisions of the Act.

(4) Every post in a religious institution shall be sanctioned taking into account the income of the religious institution. The expenditure on salaries and establishment shall be met from the income of the religious institution."

28. A reading of rule 5-A would go to show that it only speaks of the details which are required to be incorporated in the schedule as per Rule 14 of the Services Rules. This rule also does not indicate that the Government has got any power to regulate the pay and emoluments of the office-holders and servants. As a matter of fact, Rule 5-A is complementary to Rule 14.

29. The learned Special Government Pleader would submit that in W.P.No.1465 of 2011 , this court has made an observation that the rule clearly exemplifies the power available with the Government to issue an order like G.O.Ms.No.257. I have very carefully gone through the order of this Court, but, I am unable to find any such observation as it is sought to be projected by the learned counsel for the respondents. In para 15 of the said judgement, this Court has made the following observation:-

"15. It is no doubt true that the Government Order passed earlier in G.O.Ms.No.257, Tamil Development Culture and Religious Department dated 10.06.1998 is prior to the amendment. However, we are not concerned with the Government Order as such but with the power of the first respondent in imposing the percentage norms. The earlier Government Order has not been put into challenge and the impugned order has not been passed merely based upon the said order but on the subsequent orders which are also not challenged before this Court. Therefore, this Court is of the view that it is very well open to the Government which unfortunately is not a party before this Court, to fix the norms regarding the expenditure of salary and establishment. When the Government can limit the expenditure such a power would also include the guidelines for fixing the salary."

Again in para 16, this court observed as follows:-

"16. Section 116(2) of the H.R.&C.E.; Act confers a wide range of powers to the Government. The power of the Government under the said Section to make rules is rather exhaustive. The following clauses of the said provision are extracted hereunder:

"116(2)...............

(vii) the budgets, reports, accounts, returns or other information to be submitted by trustees;

(x) the proper collection of the income of, and the incurring of expenditure by, religious institutions;

(xi) the custody of the moneys of religious institutions, their deposit in, and withdrawal from banks, and the investment of such moneys;

(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;

(xii-a) the manner in which, the persons (including the State Trading Corporation) to whom, the conditions and restrictions subject to which, movable properties of any religious institution including human hairs and other articles received as offerings in the religious institutions, shall be sold or otherwise disposed of;

(xiv) the manner in which the accounts of religious institutions shall be audited and published, the time and place of audit and the form and contents of the auditor's report;

(xv) the method of calculating the income of a religious institution for the purpose of levying contribution and the rate at which it shall be levied;

(xxv) the grant of pensions or gratuities to officers and servants of the Board who retired before the 30th September 1951;

(xxvi) the grant of gratuities to the heirs of deceased officers and servants of the Board including those who had retired before the 30th September 1951;"

Therefore, a perusal of the above said Section together with the amendment made by way of introduction of Rule 5-A of the Tamil Nadu Hindu Religious Institutions (Officers and Servants) Service Rules, 1964 clearly exemplifies the power available with the Government."

30. In my considered opinion, these observations made by this Court earlier cannot be understood in such a way, as if, this Court has declared that the Government has got executive power to issue any order, instruction or guideline in respect of the subject dealt with either expressly or impliedly by the statutes or rules framed thereunder. As has been held by this court, since the Government was not a party in that writ petition, the validity of G.O.Ms.No.257 was not gone into in the earlier proceedings. That is the reason why, G.O.Ms.No.257 has been specifically challenged in the present writ petition. In my considered opinion, in the earlier order this court has not at all upheld the validity of G.O.Ms.No.257. As a matter of fact, it was left open.

31. Thus, looking from any angle, it is crystal clear that G.O.Ms.No.257, which is only an executive instruction, is in direct conflict with Section 55 of the HR & CE Act and Rule 14 of the Service Rules and so it is not valid. Hence, I hold that G.O.Ms.No.257 is ultra vires the express provision of the HR & CE Act and Rule 14 of the Service Rules made thereunder and, therefore, the same is liable to be struck down.

32. Now turning to W.P.No.13918 of 2012, in the earlier writ petition, this court issued a direction to submit a schedule as per Rule 14 and Rule 5A . According to the petitioner, on 07.02.2012 such schedule was submitted by the petitioner. But, it is the contention of the respondents 1 to 3 that it is not the schedule and it is in the nature of only a memorandum containing narration of the income and other aspects of the temple. For this, certain clarifications were sought for and they were also submitted. Finally, the impugned order has been passed. A perusal of the impugned order would go to show that the 3rd respondent has not considered the relevant materials which will determine the correctness of the schedule to be approved under Rule 14. Admittedly, the temple in question has got annual income of more than rupees one crore. Therefore, as per the rules, it is a senior grade temple. Rule 2(g) of the Rules defines the term "senior grade temple" thus:-

“2 (g) - Senior Grade Temple” means any religious institution declared by Government as Senior Grade temple from time to time, taking into account the income and movable and immovable properties of the religious institution."

33. There is no controversy before this Court that petitioner temple has been declared as senior grade temple. Now, coming to Rule 14, in respect of senior grade temples, the competent authority to approve the schedule is, undoubtedly, the Joint Commissioner (the 3rd respondent herein). So far as the petitioner temple is concerned, there is no such approved schedule in terms of Rule 14. It is because of this reason, in the earlier writ petition, this Court directed the petitioner to submit a schedule (proposal). But, unfortunately, the proposal submitted by the petitioner is not in tune with rule 14. It is in the nature of a simple narration of facts. But, the 3rd respondent, on his part, while passing the impugned order, also has not acted in accordance with law. He has passed the impugned order based on G.O.Ms.No.257. Since the Government order in G.O.Ms.No.257 is quashed, the impugned order in W.P.No.13918 of 2012 is also liable to be quashed inasmuch as the pay and emoluments of the office-holders and servants of the temple have been arrived at based on G.O.Ms.No.257 also.

34. Further, as per the letter of the Government in Letter Ms.No.416, Tamil Development - Culture and Charitable Endowments Department, dated 01.12.2000, the total amount to be spent towards pay and emoluments of the office-holders and servants of the temple which is a senior grade temple shall not exceed 25%. According to the proposal submitted by the petitioner temple, the total expenditure towards pay and emoluments was 24.40%. It is in tune with the Government's Letter Ms.416 cited supra. But, in the impugned order dated 24.04.2012, in para 2 , it is stated by the 3rd respondent that the expenditure towards pay and emoluments can go up to 30%. Strangely in para 1, at the fag end, the 3rd respondent has stated that the total expenditure towards pay and emoluments can go up to 35% in respect of the petitioner temple. In the final order passed, there is no reference as to what was the total expenditure towards pay and emoluments, whether it is 25% or less or more than 25%. Thus, in my considered opinion, the 3rd respondent has not passed the impugned order as directed by this Court in the earlier writ petition by strictly adhering to the rules.

35. In view of all the above, the proceedings impugned in W.P.No.13918 of 2012 are also liable to be set aside. But, at the same time, it is for the 3rd respondent to pass appropriate orders afresh after affording sufficient opportunity to both parties. For the present, since the petitioner temple is the senior grade temple, as per the norms, the total expenditure towards pay and emoluments should not exceed 25%. For any reason, in future, if the petitioner temple becomes a non senior grade temple, then, the expenditure towards pay and emoluments may exceed 25%.

36. In the result, W.P.No.13919 of 2012: This writ petition is allowed and the Government Order in G.O.Ms.No.257, Tamil Development, Culture, Religious Charitable Endowments and Information Department, dated 30.06.2010 is hereby quashed. No costs. Connected MPs are closed.

W.P.No.13918 of 2012 :This writ petition is also allowed; the impugned proceedings of the 3rd respondent in Na.Ka.1098/2012/B2 dated 24.04.2012 and his consequential proceedings dated 03.05.2012 are quashed and the matter is remitted back to the 3rd respondent with the following directions:-

(i) the petitioner shall submit a revised schedule relating to the pay and emoluments of the office-holders and servants of the temple which shall not exceed 25% of the income of the temple as directed by this Court by order dated 06.01.2012 made in W.P.No.1465 of 2011. The Schedule, as directed above, shall be submitted within a period of six weeks from the date of receipt of a copy of this order.

(ii) On receipt of the same and considering the revised schedule and the proposal submitted earlier and the relevant documents, the 3rd respondent after affording sufficient opportunity to both the petitioner temple as well as the other respondents herein, pass final orders within a period of eight weeks thereafter as required under Rule 14 of the Rules.

(iii) It is further directed that the order of the Joint Commissioner to be passed as directed hereinabove shall be implemented with effect from the month of May 2012 scrupulously. The learned senior counsel appearing for the petitioner across the bar agreed that the petitioner temple will implement the same retrospectively from the month of May, 2012 and the same is recorded.

(iv) The 1st respondent is directed to consider the income of the petitioner temple periodically, every year, and to declare as to whether the same is a senior grade temple or non-senior grade temple from time to time as directed in Rule 5A of the Rules. In future, for any reason, if the Government declares under Rule 5A(2) that it is a non senior grade temple, then, the petitioner will accordingly submit another proposal in respect of pay and emoluments of the office-holders and servants to the 3rd respondent and the 3rd respondent, in turn, will be at liberty to pass order in accordance with law.

(v) No costs. Consequently, connected MPs are closed.


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