IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.07.2005 CORAM: THE HONOURABLE MR.JUSTICE K.P.SIVASUBRAMANIAM W.P.No.3693 of 1997 1. Tamil Nadu Thirukoil Thozhilalarkal Union, (Register No.1796 of 1988) represented by its State General Secretary, No.27, Second Street Jayalakshmi Puram Nungambakkam, Chennai-600 034. 2. S.Bhoopathy .. Petitioners versus 1. The Commissioner Hindu Religious and Charitable Endowments Uthamar Gandhi Salai Chennai-600 034. 2. The Joint Commissioner/ Executive Officer Arulmighu Meenakshi Sundareswarar Koil Madurai. 3. The Assistant Commissioner/ Executive Officer Arulmigu Subramanya Swamy Koil Thiruparamkundram. 4. P.Chandrasekaran 5. N.Ravindran 6. G.Ganeshkumar 7. G.Anandan 8. Selvi C.Kavithamani 9. A.Perumal 10. G.Azhagar Raja 11. C.Anbazhagan 12. A.Kannan 13. C.Manickavasagam 14. P.Prabhu 15. K.Kannan 16. Tmt.T.Shanthi 17. M.Selvan 18. K.Pugazhendhi https://hcservices.ecourts.gov.in/hcservices/ 19. K.Murugan 20. Selvi M.Jayasudha .. Respondents PRAYER: Writ petition filed under Article 226 of the Constitution of India for the issue of a writ of Certiorarified Mandamus calling for the records relating to the order of the first respondent in proceedings Mu.Mu.No.58104/96/Z2 dated 21.8.1996, Mu.Mu.No.68981/96/ Z1 dated 5.9.1996 and Mu.Mu.No.78012/96/Z1 dated 14.10.1996, to quash the same and to direct the first respondent to appoint eligible candidates who are employees of the temples and the members of the petitioner Union in strict conformity of the earlier circulars ordered by the first respondent and in Circular No.11/95/I1 dated 4.8.1995. For petitioners : Mr.T.S.Sivagnanam For 1st respondent : Mr.G.Sukumaran Special Govt. Pleader (HR & CE) For 2nd respondent : Mr.P.Gopalan For 3rd respondent : Mr.C.Selvaraju Senior Advocate For respondents-6 to 15 : Miss K.Suguna For respondents-16 to 20 : No appearance ORDER The petitioner has prayed for a Certiorarified Mandamus to call for the records relating to the orders of the first respondent dated 21.8.1996, 5.9.1996 and 14.10.1996, to quash the same and to direct the first respondent to appoint eligible candidates who are employees of the temples and the members of the petitioner- Union in strict conformity with the earlier circulars of the first respondent and circular dated 4.8.1995. 2. The petitioner in this writ petition is a Trade Union registered under the Trade Unions Act and recognised by the Government of Tamil Nadu. It has branches all over the State. According to the petitioner Union, in the matter of filling up of vacancies in the various temples under the control of the H.R. & C.E. Department, as there was no uniform procedure, the Commissioner had issued various circulars dated 7.2.1989, 22.5.1992, 16.6.1993, 15.3.1995 and 4.8.1995. According to the petitioner, the following are the salient features of the guidelines: (i) The Executive Officers were directed to call for applications https://hcservices.ecourts.gov.in/hcservices/ from all eligible employees of all the temples and by displaying the same prominently in the notice board of the temple and a minimum of one month notice. (ii) Proof of such publication in all the temples in every region had to be obtained by the concerned Deputy Commissioner or the Joint Commissioner as the case may be. (iii) Copies of the notices calling for application should be published in the office of the concerned local authority and Government Offices as well as District Employment Office. (iv) The applications so received have to be registered and the applicants have to be called for oral interview before the concerned Executive Officer or the Trustee. (v) After awarding marks to the candidates, the list of eligible candidates has to be prepared and forwarded to the Commissioner with the recommendations of the interviewing authority. (vi) Appointments have to be made only after the approval of the first respondent. It was also ordered that any vacancies and new posts in senior grade temples, employees of the temples other than senior grade temples have to be first considered and copies of the publications calling for applications have to be communicated to the petitioner union. 3. It is further stated that the employees of the temple are paid from and out of the funds of the temple and as there was no uniformity in the scale of pay between smaller posts in the various temples, several representations were made by the Unions. The Commissioner had issued circulars to fill up vacancies which arise in temples by calling for applications from all the employees in the region with a view to provide employment opportunities with better service conditions. The first respondent had also issued a circular on 20.7.1992, directing strict adherence to the circulars by all the Executive Officers and that while filling up vacancies arising in any temple, first preference has to be given to the staff working in that particular temple on the basis of seniority. The petitioner-Union contends that the said circular dated 20.7.1982 has not been rescinded or modified. 4. However, according to the petitioner, in the recent past, particularly in the filling up of the posts in the second and third respondent temples, vacancies were being filled up in violation of the said procedure. The second petitioner, claiming to be a member of the Union, alleges to be aggrieved by such improper selection and appointment. It is stated that on 31.12.1994, the second respondent had called for applications for filling up of vacancies in eight categories of posts in the second respondent temple. The said notice was published in the temple notice board and the petitioner had applied for the post of Maniam and Record Clerk by application dated 13.4.1995 in the scale of pay of Rs.725-15-1130. He was possessed of the requisite educational qualification as well as age-wise. He had also mentioned that he was working as a Clerk https://hcservices.ecourts.gov.in/hcservices/ in Arulmighu Dhandapani Thirukoil, Madurai. The said application was acknowledged by the second respondent on 15.1.1995. Another member of the first respondent-Union one Paramasivam, who was also working as a Watchman in the same temple, also applied for the post of Office Assistant in the second respondent temple. The said application dated 14.1.1995 was acknowledged by the second respondent on 15.1.1995. It is further stated that even while the application of the second petitioner and all the members of the Union were pending, the Union, by representation dated 10.7.1995, raised certain demands with the first respondent, inclusive of the request to fill up the vacancies arising in the senior grade temples from and out of the employees of the temples. 5. The petitioner further submits that the third respondent, by notification dated 8.1.1996, called for applications from the temple employees for eight categories of posts and by application dated 5.2.1996, the second petitioner applied for the post of Junior Assistant. While he was eagerly hoping that he would be called for the interview, to his surprise and shock, the first respondent had posted eleven candidates for the post of Record Clerk in the second respondent temple by order dated 21.8.1996 and appointed three Record Clerks and two Junior Assistants in the third respondent temple by proceedings dated 5.9.1996 and 14.10.1996. Aggrieved by the same, the petitioner has filed the above writ petition, contending that such appointments were contrary to the circulars and regulations issued by the Government in the matter of filling up of vacancies. 6. In the counter affidavit filed by the first respondent, it is contended that the claim of the petitioner that the instructions given on the circular dated 4.8.1995 should be complied with was not correct. The said circular had been issued only to remove the constraints on the employees of the temple to apply for the post. The circulars issued earlier have been cancelled by the Commissioner's circular dated 25.6.1996. It is true that all appointments have to be made in the temples only with the approval of the Commissioner. The allegation that appointments were made in gross violation of the procedure was incorrect. The notification calling for appointment was published in the notice boards of the temples to which appointments are being made. The second petitioner himself admits that he has seen the notification in the temple notice board and hence, he cannot be aggrieved. The circular issued by the first respondent dated 4.8.1995 reiterates that the application of the existing employees will have to be considered only on merits. The applications were considered on merits and suitable candidates have been appointed to the concerned two temples in pursuance of the orders passed by the first respondent dated 21.8.1996, 5.9.1996 and 14.10.1996. The appointments thus made are in accordance with the procedure and not against the provisions of the Act. 7. The first respondent further contends that the petitioners https://hcservices.ecourts.gov.in/hcservices/ have no locus standi to question the authority of the first respondent on giving age relaxation to the recruits, which is within the power of the first respondent. The Commissioner was empowered to grant such exemption. The petitioner has no locus standi to question the recruitment from the open market. As regards the impugned appointment, it is stated that in view of the emergent requirements and to provide better service to the worshippers and for proper administration of the temple in an effective manner, the Deputy Commissioner had sent the orders of appointment, keeping in mind the interest and for better service conditions in the temples. 8. In the counter affidavit filed by the second respondent, it is stated that in order to provide facilities to the worshippers, a notification was affixed on 31.12.1994, pursuant to the directions of the Commissioner calling for applications for appointment to the post of Record Clerk, Maniam, Archakar, Paricharagar, etc. Calls were received from various persons and they were placed before the first respondent for necessary action. Pursuant to the communication dated 21.8.1996, respondents-4 to 14 were appointed in the second respondent temple by invoking the power under Rule 17 of the H.R. and C.E. Service Rules. The members of the petitioner Union who were already working in other temples are entitled to forward their applications only through the temple in which they are working. By not having done so, the petitioners are not entitled to challenge the impugned orders. Appointments were made only in the interest of the proper administration of the temple. 9. In the counter affidavit of the third respondent, the very same stand as stated in the counter affidavit of respondents-1 and 2 have been reiterated. While referring to the circulars, it is stated that as per the circular dated 25.6.1996, it was made clear that the earlier circulars will have no application and therefore, the earlier circulars have been impliedly superseded. It was only on the basis of the said circulars received from the Commissioner and the Department appointments have been made. As far as the third respondent temple was concerned, there was neither a Board of Trustees nor a fit person and all the affairs were being discharged only by the Executive Officer. There was absolutely no deviation nor any violation of the rules and regulations relating to appointment. 10. In the counter affidavit filed by the seventh respondent, one of the appointees, it is stated that he and the other respondents were appointed as Record Clerks in the year 1996, and they were fully possessed of the qualifications to the post. Even as per the averments in the affidavit in the writ petition, announcements have been made calling for applications for appointment to the various authorities concerned. One Bhoopathy and Paramasivam also have applied in response to the notification. Therefore, the contentions raised in the writ petition cannot be sustained. The said Bhoopathy was the Secretary of the Madurai https://hcservices.ecourts.gov.in/hcservices/ Division Small Temples Association and since he had the knowledge of the applications called for by the respondents, he had applied for the same. If he was really interested in the welfare of the members of the Association, he should have informed the members of the Association. However, the proceedings contemplated in the matter of appointment of Record Clerks have been correctly complied with. The Association cannot question the appointment of the respondents without even having applied for the posts. The circular on the basis of which the writ petition has been filed has been cancelled. Since the respondents alone were qualified, two of them were given age relaxation by the Commissioner, who is vested with the power to grant the relaxation. 11. Mr.T.S.Sivagnanam, learned counsel appearing for the petitioners, referred to a series of circulars issued in the context of appointments and postings to be made for filling up of vacancies in various temples and contends that the preferential rights of individuals already working in the various temples under the control of H.R. & C.E. Department were duly recognised in these circulars, especially in the circular dated 4.8.1995. It is true that they have to subject themselves to a selection process by an interview and should satisfy the basic qualifications prescribed for the post. But being a recognised Trade Union, they had bargained for better working conditions and for recognition of the work rendered by them. The acceptance of their demands in those circulars is a valuable right and is enforceable. That being so, the respondent temples were not following the instructions and were making appointments in an illegal manner for obvious reasons and with ulterior motives and favouring persons close to the authorities. Secondly, the candidates who have now been selected have not been subjected to any selection process, which is only due to extraneous reasons. This is also evident from the fact that relaxation of age had been given to them. It is further stated that they were also not called through the employment exchange or by any press notification. 12. Learned counsel also submitted that there was no Board of Directors in respect of the second and third respondent temples and the Executive Officers have not been appointed as fit persons and they have no power to appoint anyone. The petitioners' request to cancel their appointments by several representations did not evoke any response and hence, the writ petition. 13. Learned counsel also referred to Section 25 of Act 22 of 1959, (hereinafter called the Act) and it is contended that it is only the trustees who can make the appointments and not the Executive Officers. Reference was also made to Tamil Nadu Religious Institutions (Officers and Servants) Service Rules, 1964 (hereinafter called the Rules), in support of his contention that the Rules prescribe specific age of educational qualifications, which have been given a go bye while appointing the respondents. https://hcservices.ecourts.gov.in/hcservices/ 14. Learned Special Government Pleader appearing for the official respondents, contended that the petitioners had based their claims on superseded circulars and instructions. The impugned appointments were made after the coming into force of circular dated 25.6.1996, in and by which, the circulars relied upon by the petitioners were specifically superseded. Therefore, there was no obligation to intimate the petitioner-Union. The appointments were made only to meet the emergent requirements which cannot be questioned by the petitioner. The appointments were intended to provide better services to the worshippers. The entire administration of the temples is vested with the Commissioner under Section 23 of the Act and he also had the power of granting relaxation under Rule 17. The second petitioner was only a Clerk and cannot be appointed for the post for which he had applied for. The appointments were made only to attend to the convenience of the worshippers and to look after their footwear (fhyzp). Learned Special Government Pleader also produced the files relating to the impugned orders of appointment. 15. Miss Suguna, learned counsel for the respondents/appointees, contended that the fact of calling for applications had been put up on the notice board is admitted by the petitioner and it is only pursuant to the same, the second petitioner and few others belonging to the petitioner Union had applied. The present objections have been taken up only because they have not been selected. Their applications were considered on merits and they were not selected. Paramasivam, one of the applicants, was the President of the Union and he could have taken steps to convey the information to all the members of the Union. Learned counsel also reiterated that the earlier circulars had been withdrawn. The appointments were made only after considering the mutual qualifications and merits. Learned counsel also stated that all of them have put in more than seven years of service as on date and some of them have even passed the departmental tests. They were performing their duties to the satisfaction of the authorities and hence, in the interest of justice their appointment may not be disturbed. 16. I have considered the submissions of both sides. 17. The objection of the petitioners as raised by the learned counsel for the petitioners to the impugned appointments are as follows: (i) No intimation had been given to the Union in terms of the earlier circulars inclusive of the circular dated 4.8.1995. The object of the said circular was to give preference to the employees already working in the temples; (ii) No process of selection was undergone and appointments have been made and relaxations granted for extraneous reasons in an arbitrary manner only to favour the appointees. None of them were appointed through employment exchange or by issuing any public advertisement; https://hcservices.ecourts.gov.in/hcservices/ (iii) The claims of the second petitioner and similarly placed claimants belonging to the petitioner-Union had not been properly considered. 18. The contention of the petitioner that the claims of the petitioner-Union and their members had not been considered has not been properly dealt with by the respondents. The stand of the respondents is that there was no such need to give any notice to the Unions, nor to give any preference to the members of the Union, inasmuch as with the issuance of the circular dated 25.6.1996, it is implied that all the earlier circulars are superseded. I find this contention as untenable. 19. A perusal of the circular dated 4.8.1995 discloses that it was issued in the interest of the members of the petitioner-Union and their request has been accepted by the Government. The reasons for such a circular are not only obvious, but also not denied by the respondents. As employees already working in the various temples under the control of the Department, they should have preferential opportunity to be considered for promotions, failing which, they would be stagnating in the same posts for ever. Secondly, some of them may be working in temporary or casual capacity for several years without being made permanent and on low salary. Therefore, the fact that the object of the said circular was to subserve a healthy labour/service policy cannot be denied. It is true that selection will be only on merits, but their claims will have to be given due weightage. That was the object of the said circular. The respondents, being unable to dispute the said position, have chosen to take up an untenable stand that with the issuance of the circular dated 25.6.1996, all the earlier circulars stood superseded. 20. Firstly, a perusal of the circular dated 25.6.1996 shows that only circulars dated 7.2.1989, 22.5.1992, 16.6.1993 and 14.3.1995 are superseded. There is no mention of the circular dated 4.8.1995. There is also no question of any implied supersession. Secondly, the issue dealt with under the circular dated 25.6.1996 is entirely different. That circular does not deal with the claim of the petitioner-Union, but only with the method of registering the applications, the competent authorities authorised to do so, the details to be furnished, etc., and the appointments could be made only after obtaining prior permission of the Commissioner. In short, the circular deals with streamlining the receipt of applications and registering them and have nothing to do with the subject of right of the petitioner Union and its members. That is the reason why there is no reference at all to the circular dated 4.8.1995. Therefore, I am unable to sustain the contention that the circular dated 4.8.1995 had been superseded. It follows that the appointments having been made without complying with the second circular, have to be held as bad. https://hcservices.ecourts.gov.in/hcservices/ 21. The contention raised by Miss Suguna that the notice was put up in the notice board and that the second petitioner and some other office bearers have knowledge of the notice cannot at all be accepted. If a certain requirement is to be complied with in a particular manner, there has to be a strict compliance of the said requirement and it is no excuse to say that the President of the Union could have intimated the members. It is true that it may not be open to the second petitioner nor the office bearers of the Unit, who had applied for the post, to raise a contention that the Union had not been notified. They would be estopped from raising such a contention in their individual capacity. But it is certainly open to the Union, the first petitioner, to raise the said issue. 22. It is also not disputed that appointments had been made without following the procedure of either calling for names from the employment exchange or by issuing any public advertisement in the newspapers. The files disclose that the impugned appointments have been made out of sheer favouritism and arbitrariness and through back-door method. 23. The file relating to the appointments in the second respondent temple (Mu.Mu.No.58104/96 dated 21.8.1996), contains at Page Nos.57 and 58, the letter of the Executive Officer of the temples to the Commissioner dated 4.8.1996. The following is the operative portion of the letter dealing with the appointments of respondents-12, 14 and 15: " ,e;j ehd;F egh;fs; epakpj;jhYk;. nkw;go gzp bra;tjw;F nghJkhdjhf ,y;iy/ vd;gjhy;. nkYk; K:d;W egh;fis gjptiw vGj;jh; epiyapy; Cjpa tpfpjk; U:/725-15-1130 vd;w Cjpa mog;gilapy; mjw;Fhpa gofSld; moapw;Fwpg;gplg;gl;Ls;s egh;fis epakdk; bra;Jbfhs;s mDkjpaspf;f ntz;Lkha; gzpe;J nfl;Lf;bfhs;sg;gLfpwJ/ 1) jpU V/fz;zd;. j-bg/Mh;mnahj;jp uhkd; 2) jpU tp/gpug.[ j-bg/ v!;/t Pukzp 3) jpU nf/fz;zd;. j-bg/ fUg;igah khz;g[kpF mwepiyaj;Jiw mikr;rh; mth;fshy; nkw.Twpa 3 egh;fspd; ntiy tha;g;g[f; nfhhpa tpz;zg;g';fis ghpt[ld; ghprPypj;J nkw;go 3 egh;fisa[k; gzp epakdk; bra;a rpghhpR bra;J Mizah; mth;fSf;F gpnuuiz mDg;gpitf;Fk;go vd;dplk; nfl;Lf; bfhz;lhh;fs;/ mjd;go. nkw;go 3 egh;fspd; tpz;zg;g';fSk; fy;tpj; jFjpr; rhd;wpjHfs; efy;fSk; ,j;Jld; ,izj;J mDg;gg;gl;Ls;sJ/ ,j;jpUf;nfhapYf;Fj; jw;bghGJ mw';fhtyh; FGnth my;yJ jf;fhsnuh. ,y;yhj epiyapdhy; jPh;khdk; vJt[k; bgw;W ,j;Jld; ,izj;J mDg;g ,aytpy;iy vd;w tpguk; gzpe;J bjhptpj;Jf; bfhs;sg;gLfpwJ/ nkw;fz;lthW g[jpjhf mDkjpf;fg;glt[s;s 3 gjptiw vGj;jh;fs; gjtpfspy; khz;g[kpF mwepiya https://hcservices.ecourts.gov.in/hcservices/ mikr;rh; mth;fshy; ghpe;Jiu bra;ag;gl;L 3 egh;fisa[k; gzp epakdk; bra;a mDkjp tH';f ntz;Lkha; gzpe;J nfl;Lf;bfhs;sg;gLfpwJ/ nkw;fz;l K:d;W gjptiw vGj;jh; gjtpfis g [jpjhf mDkjpg;gJ Fwpj;J ,j;jpUf;nfhapYf;F gryp 1f;F U:/71208-? TLjy; eph;thf bryt[ Vw;gl cs;sJ/ epue;ju rpg;ge;jpfs; gl;oaypd;go tH';fg;gLk; Cjpaj;bjhif cl;gl jw;bghGJ ntz;lg;gl;l 3 gzpahsh;fspd; CjpaKk; nrh;j;Jk;. bkhj;jk; U:/84.57.418-? bryt[ Vw;gLk;/ ,J thptpjpg;g[f;F eph;zak; bra;ag;gl;l tUkhdj;jpy; 41/5# MFk;. mtru mtrpaj;jpidf; fUjp. nkny ghpe;Jiu bra;Js;s K:d;W gjptiw vGj;jh;fisa[k; g[j;ajhf Vw;gLj;jt[k;. mt;thW Vw;gLj;jg;gLk; gzpapl';fSf;F nkw;fz;l 3 egh;fisa[k; mwepiyar; rl;l tpjpfSf;Fl;gl;L gzp epakdk; bra;tjw;F jf;f cj;jput[ tH';FkhW gzpe;J nfl;Lf;bfhs;sg;gLfpwJ/ @ 24. The file relating to appointments in the third respondent temple (Mu.Mu.68981/96 dated 5.9.1996) also discloses appointments having been made at the will and pleasure of the officials and at Page No.68, is the letter of the Executive Officer dated 3.9.1996 recommending appointment of one T.Shanthi (Respondent No.16). This recommendation has been endorsed subsequently by the Joint Commissioner and the Commissioner. The operative portion of the letter is as follows: @ ghh;itapy; fhQqk; Fwpg;gpy; jpUkjp/o/rhe;jp vd;gth; v!;/v!;/vy;/rp/ goj;Js;sjhft[k;. jdJ FLk;g fc&;lj;ij nghf;ft[k;. ntiyf;F Mizbra;a[[k;go nfl;Ls;shh;/ ,j;jpUnfhapypy; fhypahft[s;s gjptiw vGj;jh; gzpaplkhdJ Vw;fdnt m';f Pfhpf;fg;gl;ljhFk;/ nkw;go gzpaplj;jpw;fhd mog;gilr; rk;gsk; U:/725-? kw;Wk; tHf;fj;jpYs;s gofs; MFk;/ ,j;jpUf;nfhapypd; gryp 1405?f;fhd rfhaj;bjhif eph;zatUkhdk; U:/65.41.700-? MFk;/ ,g;gzpaplj;jpy; jpUkjp/o/rhe;jp vd;gtiu epakdk; bra;jhy;. Rpg;ge;jpfs; rk;gsr; bryt [ 35/36#?rjtpfpjk; MFk;/ vdnt. jpUf;nfhapy; eyd;fUjp mtruk; kw;Wk; mtrpaj;jpid fUjp fhypahft[s;s gjptiw vGj;jh; gzpaplj;jpy; jpUkjp/o/rhe;jp f-bg/nrJuhkd; vd;gtiu U:725?15?1130 vd;w rk;gs Vw;w Kiwapy; mog;gil rk;gsk; U:/725 kw;Wk; tHf;fj;jpYs;s gofSld; epue;jukhf epakdk; bra;a gzpe;J nfl;Lf; bfhs;sg;gLfpwJ/ ,j;Jld; gzp epakdk; Fwpj;jhd chpa gotk; g{h;j;jp bra;Jk;. fzf;f Pl ;Lj;jhSld; gzpe;jDg;gg;gLfpwJ/ @ https://hcservices.ecourts.gov.in/hcservices/ 25. The above are only two specific references shown as examples and admittedly, all appointments have been made only by such method and not in accordance with the Rules. The contention of Miss Suguna that the process of selection was valid is stated only to be rejected, in view of the above glaring facts and materials. Mere receipt of intimation calling upon the appointees to appear