ivil Appeal No 1045 of 1972
From the Judgment and Order dated 721972 of the Madras High Court in Appeal No 549 of 1963
K Ramkumar for the Appellants
K Raj Choudhary BR Agarwal and Ms Sushma Manchanda for the Respondents
The Judgment of the Court was delivered by KANIA J
This is an appeal by Special Leave against a judgment of a Division Bench of the Madras High Court deliv ered on February 7 1972
Respondents Nos
1 to 5 along with one other person filed a representative suit on behalf of themselves and other members of the Thousand Yadhava Community residing in Ramayanachavadi Street and the other adjoining lanes in North Masi Street Madurai Town and adjoining villages against original appellant No 1 herein for an order 3 directing him to render true and proper accounts of the management of the properties of the Thousand Yadhava Commu nity including the Sri Ramasami Sri Navaneetha Krishnasami Devasthanam Temples and their properties and to pay to the plaintiffs the amount ascertained as payable on such rendi tion of accounts with interest and other reliefs
Original appellant No 1 herein was the trustee of the said temples
He died during the pendency of the appeal before us and his two sons have been joined as appellants Nos 1i to 1ii in this appeal
We propose to refer to the parties by their descriptions in the suit for the sake of convenience
Very briefly stated according to the plaintiffs the said temples were private religious trusts and the defendant had committed several acts of mismanagement in respect of the properties of the said trusts
The defendant denied these allegations
He inter alia contended that the suit as framed was not maintainable in law in view of the provi sions of the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959 hereinafter referred to as the said Act
The Trial Court dismissed the suit on the ground that it was barred by the provisions of the said Act
The Trial Court held that the said temples were not private temples belonging to the aforesaid community namely Thou sand Yadhava Community
The Trial Court took the view that the Thousand Yadhava Community must be regarded as a section of the Hindu Community and in that case both the temples would be covered by the provisions of section 620 of the said Act
Sub section 20 of section 6 defines the meaning of the word temple  for the purpose of the said Act and very briefly stated lays down that it is a place used as a place of public religious worship and dedicated to or for the benefit of the Hindu Community or any section thereof as a place of public religious worship
The Trial Court took the view that although this question could be decided primarily only by the Endowment Board and Civil Court has no jurisdiction to go into it it could go into that question incidentally as was done by the Trial Court
As a conse quence of this conclusion the Trial Court held that the suit was barred by the provisions of the said Act and was not maintainable at law
The plaintiffs preferred an appeal against this decision to the Madras High Court
A Division Bench of the Madras High Court after examining the provi sions of the said Act held that the Trial Court was not right in dismissing the suit in toto even with regard to the relief of accounting
The High Court held that defendant No 1 original appellant before us admitted that he was elect ed in 1949 as the trustee of the said temples at a meeting of the members of the community
The 4 said Act does not contain any provision for rendition of accounts
A party seeking relief of accounting cannot ap proach the Deputy Commissioner or any other authority under the said Act and hence the Civil Court is not barred either expressly or by necessary implication from entertaining a suit in so far as it was for the relief of accounting
Following upon this reasoning the court allowed the appeal and passed a preliminary decree against defendant No 1 for rendition of accounts while dismissing the suit in all other respects
The High Court did not decide as to whether the said temples were private temples or could be regarded as public religious endowments falling within the definition of the term temple  as defined in sub section 20 of section 6 of the said Act
Defendant No 1 along with some others filed a petition for Special Leave before this Court and by an order dated April 24 1972
Special Leave was granted by this Court but was confined to the question whether it was within the power of the Civil Court to direct accounts to be taken without deciding the question whether the temple is a public temple or a private temple
At the hearing of the appeal before us Mr Ram Kumar learned Counsel for the appellants conceded that if the said temples were private temples as contended by the plaintiffs in the said suit the defendant as the trustee was liable to render accounts of his management of the said trust to them as beneficiaries
It was however submitted by him that in case the said temples were not private temples but were temples as defined in sub section 20 of section 6 of the said Act to which we have already referred earlier the suit for rendition of accounts was not maintainable in view of the provisions of the said Act and hence it was not open to the High Court to have passed a decree for rendition of accounts without deciding whether the said temples were public temples or private temples
He drew our attention to sub section 20 of section 6 of the said Act which defines the term temple  for the purpose of the said Act
We have already referred to that definition of the said term tem ple  earlier
Suffice it to state here that under that definition only public temples of the nature stated earlier could be regarded as temples
Sub section 17 of section 6 defines the term religious endowment  or endowment  and it is sufficient for the purpose of this appeal to note that it means property belonging to or given or endowed for the support of maths or temples for the purposes set out there in
Section 108 of the said Act runs as follows
5 108
Bar of suits in respect of administra tion or management of religious institutions etc
No suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in this Act shall be insti tuted in any
Court of law except under and in confirmity with the provisions of this Act
 Section 63 of the said Act deals with the power of the Deputy Commissioner to hold inquiries into and decide the disputes and matters set out therein
It inter alia confers on him the power to hold inquiries in connection with the property and funds of the temples within the meaning of the said Act
Against the order of the Deputy Commissioner an appeal is provided under section 69 to the Commissioner and section 70 lays down that a person aggrieved by an order passed by the Commissioner under the provisions set out in clauses i and ii of sub section 1 thereof can file a suit in a Civil Court
Sub section 2 of section 70 pro vides that an appeal shall lie to the High Court against the decree of the Civil Court under sub section 1 of section 70
Chapter VIII of the said Act deals with the topic of Budgets Accounts and Audit
Section 87 of the said Act provides that the trustee of every religious institution shall keep regular accounts of all receipts and disburse ments and provides that these accounts have to be audited by the auditors appointed in a prescribed manner
After the audit is completed the auditor is required under section 88 to send a report to the Commissioner or the Deputy Commis sioner or the Assistant Commissioner as provided therein
Section 90 deals with the rectification of defects disclosed in the audit and order of surcharge against trustee etc
It isinteresting to note that sub section 6 of section 90 provides that an order of surcharge under this section against a trustee shall not bar a suit for accounts against him except in respect of the matters finally dealt with by such order
In the appeal before us a perusal of the plaint shows that the suit was filed not on behalf of any particular beneficiary or group of beneficiaries but by a certain persons claiming to belong to the beneficiary community namely the Thousand Yadhava Community and the suit was a representative suit instituted on behalf of themselves and other members of the community
There is no doubt that in respect of a public trust beneficiaries as a class can file a suit against the trustee for rendition of accounts sub ject to the bar imposed by
6 section 92 of the Code of Civil Procedure 1908
It was with a view to prevent  reckless and harassing suits being brought against the trustees of public trusts that section 92 was enacted requiring that two or more persons having interest in the suit could institute such a suit only with the consent in writing of the Advocate General
However we find that in view of the provisions of section 5 of the said Act sections 92 and 93 of tile Code of Civil Procedure have ceased to apply to the Hindu Religious and Charitable Endow ments in the concerned State
Hence the  bar if any to the institution of a suit like this has to be found only in the provisions of the Act
We have already set out earli er the provisions of section 108 of the said Act which is analogous to section 93 of the Madras Hindu Religious and Charitable Endowments Act 1951 hereinafter referred to as the said Act of 1951 which was repealed by the said Act
Many of the powers of the Deputy Commissioner under the said Act to which we have already referred earlier are similar to the powers conferred by section 57 of the said Act of 1951
Sections 63 and 64 of the said Act which deal with the powers of the Deputy Commissioner are in pari materia with the provisions of sections 57 and 58 of the said Act of 1951
Section 906 of the said Act provides that an order of surcharge under this section made against the trustee shall not bar a suit for accounts against him and we find a similar provision in sub section 7 of section 74 of the said Act of 1951
The schemes of the two Acts are largely similar
In Sri Vedagiri Laxmi Narasimha Swami Temple vs Induru Pattabhirami Reddy  a question arose before this Court as to whether a suit by the present trus tee against the previous trustee of a temple was barred by reason of the provisions of the said Act of 1951
It was argued in that case that the Act in question provides a complete machinery for deciding disputes in regard to ac counts and therefore no suit for accounting against an ex trustee can be filed at all in a Civil Court
After analysing the scheme of the said Act of 1951 and the provi sions of the relevant sections of that Act which we have referred to earlier that argument was rejected by a Division Bench of this Court
It was pointed out by Subba Rao CJ who delivered the judgment of this Court that the scope of the auditor s investigation is limited
It is only an effec tive substitute for the trustee himself furnishing an audit ed account
It was held that Chapter VII of the said Act of 1951 only provides for a strict supervision of the financial side of the administration
Chapter VII does not provide for determining a dispute in respect of rendition of account and does not bar a suit for that relief
Section 747 of the said Act of 1951 was not a bar to the maintainability of such a suit
The same reasoning applies to the case before us
In our opinion Chapter VIII of the said Act has no bearing on the ques 7 tion of the liability of a trustee to render accounts to the beneficiaries as a group or class and it does not provide for determining or deciding a dispute in respect of such rendition of accounts and hence section 108 of the said Act does not bar a suit like the one filed by respondent No 1 before us
We are of the view that the High Court did not commit any error in passing a decree for rendition of ac counts without deciding the question whether a temple was a public or private trust
In the result the appeal fails and is dismissed with costs fixed at Rs2000 to be divided between the respond ents equally
Y Lal Appeal dis missed


Summary:
This is an application filed by the Petitioners seeking directions of the Court for implementation of this Court s order dated 171286 in its true spirit in particular praying that the promotion orders dated 301287 be given effect from the back dates deemed dates or the dates when their juniors were promoted
The circumstances that led to the filing of this application may be stated thus
The Petitioners were members of the regularly constitut ed class II Engg
service of the State with effect from 25121970 and were working as Sub Divisional Officers
Further avenues of promotion to them were barred because the State Government construed the service Rules to mean that without a degree in Engineering a class II officer could not be promoted to class I service
The said interpretation of the State Government was disapproved by this Court in the case of AS Parmar vs State of Haryana 1984 2 SCR 476 as a consequence whereof a degree in Engineering did not remain an essential pre requisite for a member of Class II service for being promoted to Class I service
After the Judgment in Parmar s case the Petitioners filed a Writ Petition in this Court seeking a direction to the State Government to consid er the case of the Petitioners and others similarly situated for promotion to the post of Executive Engineers in Class I service
On 24284 an undertaking was given to the Court by the State that the State would consider the claims of all the eligible persons including the petitioners for regular appointment to Class I service within four months
Instead of granting promotions the State
Government amended the Rules with retrospective effect from 10764 so as to make a degree in Engineering as an indispensable qualification for an officer in Class II service for being promoted as Class I officer
The Petitioners thereupon amended their Writ Peti tion and challenged the validity of 1080 the amendment and the Court by its Judgment dated 171286 struck down the amendment to the Rules as ultra vires the State Government
In another case involving the same point viz Ashok Gulati vs BS Jain this Court directed the State Government to consider the cases of all eligible members of Class II service for promotion as Executive Engineers within six months time
The State having failed to comply with the Court s order aforesaid a contempt petition was flied which was disposed of by the Court s order dated 301287 by which time the State had reported to the COurt that the promotions to all concerned eligible officers had since been granted
The Petitioners have now filed this application contend ing that since their placement In Class II service had been made effective with effect from 251270 though the order therefore was issued on 271085 they Were entitled to be considered for promotion to Class I service as and when they attained eligibility after 251270 especially in view of the Court s Judgment in Parmar s case whereby the degree in Engineering was no longer a necessary qualification
The Petitioners therefore urge that they be placed in their rightful position by giving promotion from back dates or deemed dates or in any case the date when persons junior to them were given promotions
According to them promotions granted to them belatedly on 301287 did not render true justice to them and that the said order did not fully comply with the Court s order
Further a grievance is also made that no benefit has been given to those officers who retired from service during this period
On the other hand the State contended that it has duly complied with the Court s order by giving promotions wef 301287
The State supported its contention by saying that in approval of its action the Court on 171286 dropped further proceedings in contempt petition which meant that there has been due compliance with the Court s order
Disposing of the application with directions this Court HELD The combined effect of the striking down of the amendment to the Rules by the Government and the direction issued to the Government in Ashok Gulati s case to consider for promotion the names of all the eligible Class II offi cers would entitle the petitioners to seek the benefit of promotion from 24684 When the time limit of four months sought for by the State Government to make the promotions came to expire
But for the unsustainable amendment made to the Rules the Government could not have postponed the promotions of the 1081 Petitioners and other Class II officers similar to them beyond the time limit of four months which expired on 24684
It would therefore follow that the order of promo tion made by the State Government on 301287 will not amount to due compliance of the Court s directions dated 171286
The Government cannot take advantage of its own error in making an illegal amendment to the Rules with retrospective effect and postpone the benefit of promotion to Class II officers
1087G 1088B The Government cannot also take umbrage for its action in giving promotion to the petitioners and other eligible Class II officers with effect from 301287 either because the directions given on 171286 did not set out the date from when promotions should be given or because the Court passed orders on 411989 dropping further proceedings in the contempt petition
1088C The State Government was directed to give promotions to all eligible Class II officers with effect from 24684 and to give them all the consequential benefits arising there from
The court further directed that the benefit of promo tion and consequential benefits should also be given to all those officers who were eligible for promotion on 24684 but who have retired since then
1089B