THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No. 16854 of 2003 O R D E R: This Writ Petition calls in question the orders passed by the 1st respondent Commissioner of Endowments, Hyderabad in his proceedings, dated 17th June 2003. Apart from alleging the vice of illegality, arbitrariness and violation of principles of natural justice, it was further alleged that the impugned order is also violative of Articles 14, 16 and 311(2) of the Constitution of India. The writ petitioner claims that he was appointed by the Executive Officer, Sri Vittaleswara Swamy Vari Temple, Ramadugu Village and Mandal, Karimnagar District as a Clerk, vide proceedings dated 16th May 2003 in the time scale of pay of Rs. 425-10-455-15-650 with 20% D.A. and H.R.A. He also claims that his appointment was subsequently ratified by the Assistant Commissioner of Endowments, Karimnagar vide proceedings dated 22nd May 1993. He claims that he has worked at Sri Vittaleswara Swamy Vari Temple from 16th May 1993 to 20th June 1997. He was subsequently transferred to Sri Raja Rajeswari Devi Temple near M.G.M. Hospital, Warangal, on 20th June 1997. Pursuant to that order, it is alleged that he joined the said temple on 20th June 1997 After Noon and worked there till 11th July 1997 Fore Noon. Subsequently, he was deputed to the Office of the Assistant Commissioner of Endowments, Warangal as a Typist from 11th July 1997 and worked as such till 23rd March 2001. He submits that he has rendered services as a regular typist of the said Office and worked during the entire period, from 11th July 1997 till 23rd March 2001, without being paid for the said services. It is stated that Sri Raja Rajeswari Devi Temple has also extended him the revised pay scale of Rs.910-30-1240-35-1625 with D.A. at 60% with effect from 1st June 1999. It is further alleged that he has not been, however, paid his salary and allowances as per the orders of the aforementioned temple authority, dated 11th June 1999. It is stated that the 3rd respondent sought for absorption in the Office of the Assistant Commissioner of Endowments, Warangal as the post of Typist was vacant there and he has been discharging the functions of the Typist for long there. He also submits that the Assistant Commissioner of Endowments, Warangal has taken up the issue of regularization/absorption of the service of the writ petitioner against the post of Typist in his Office with the District Collector, Warangal, but however, on 6th April 2000, one Sri K. Kumara Swamy was posted as a Typist in the Office of the Assistant Commissioner of Endowments, Warangal and consequently, the writ petitioner was asked to assist the Senior Assistant in the office of the 3rd respondent. While he was thus assisting the Senior Assistant attached to the Office of the Assistant Commissioner of Endowments, on 2nd November 2002, the Commissioner of Endowments issued show cause notice as to why disciplinary action be not initiated against him for two counts of charges mentioned therein. The writ petitioner in his explanation disputed the correctness of the allegations levelled against him. An enquiry was followed and based upon the findings recorded on 17th June 2003, the Commissioner has proposed to impose the punishment of removal from service upon the writ petitioner. Since the explanation offered by the writ petitioner on 1st July 2003 was not found satisfactory, final orders were passed on 3rd July 2003, removing the writ petitioner from service. This order is called in question in this Writ Petition. Sri B.P. Raju, leaned counsel for the writ petitioner submits that the Commissioner of Endowments has no power or jurisdiction to act against the writ petitioner and it is the Executive Officer or the Founder Trustee of a temple who alone has got power to proceed against him. Secondly, Sri Raju would contend that the Commissioner of Endowments has not followed the principles of natural justice fairly and properly before passing the impugned order. It is also contended that the order has been passed by the Commissioner on the premises that both counts of charges are held proved, whereas the writ petitioner was not guilty of the allegations. As was already noticed supra, the impugned order was also stated to be violative of Articles 14, 16 and 311(2) of the Constitution of India. Several other contentions, such as unjustly prolonged suspension, non-payment of subsistence allowance, non-production of the Enquiry Officer’s report, etcetera, are also canvassed, apart from placing reliance upon the judgment of the Supreme Court in Union of India v. Mohd. Ramzan Khan and that of a law journal in N. Subramanyam v. Chairman, Visakhapatnam Port Trust. Per contra, learned Government Pleader for Endowments would submit that the entire question boils down to the right of the writ petitioner to hold any post in any of the temples, which are sought to be administrated and regulated in accordance with the provisions contained in the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (henceforth referred to as ‘the Endowment Act’) and if he does not have any such right, he cannot impugn the orders of the Commissioner of Endowments. It will be appropriate to notice the material that has been relied upon for sustaining the submissions made on behalf of the petitioner. The order of appointment dated 16th May 1993 was said to have been issued by the Executive Officer of Sri Vittaleswara Swamy Vari Temple, Ramadugu Village and Mandal in Karimnagar District. These proceedings refer to the application of the writ petitioner dated 15th May 1993. The order itself reads as under: “ On consideration of application of Sri ……… in the reference cited, in the better administration of subject institution and in view of the fast approaching of bi-annual festival……, Sri ……….. is hereby appointed as Clerk in the establishment of subject institution in the scale of pay of Rs.425-10-455-15-650 with 20% D.A., H.R.A. as usual. The appointment is purely on temporary basis and his services may be terminated at any time without issuing notice to him………” It is thus clear that the writ petitioner appears to have submitted an application to the Executive Officer of the said temple on 15th May 1993 and the writ petitioner came to be appointed the very next day. The reasons for his appointment are stated to be 1) the requirement of manpower for the bi-annual festival; 2) for better administration of the institution. The Executive Officer of the temple has no such power to make appointment of servants and office holders of the institutions, without obtaining the prior permission of the competent authority. Further, as to why the application of the writ petitioner alone was considered to the exclusion of any one else, is not answered. Section 35 of the Andhra Pradesh Charitable and Hindu Religious Institutions & Endowments Act, 1987 makes it very clear that every vacancy in the approved cadre strength, whether permanent or temporary, amongst the office holders or servants of a charitable or religious institution or endowment, shall be filled by the Trustee with the prior permission of the competent authority. The first proviso therein makes it very clear that in case of charitable or religious institution or endowment, whose annual income exceeds Rs.10 lacs, the Executive Officer shall appoint the office holders and servants thereof with the prior permission of the competent authority. In the counter-affidavit filed in this Writ Petition, in paragraph 3, it is averred as under: “ ………… The temple is having the annual income (of) less than Rs.5,000/-. The petitioner, who alleged to have been sanctioned the time scale of pay of Rs. 425-10-455-15-650 with 20% D.A. and 10% H.R.A. should have got his monthly salary at Rs.552/- p.m. and Rs.6624/- p.a. The temple is not having the financial position to afford the salary of the petitioner as the annual income of the temple is not even sufficient to meet the daily Dhupa, Deepa, Naivedyam expenses besides making (meeting) statutory charges like the electricity charges. Therefore, he was never admitted into the services of the temple. It is quite incorrect and far from truth that he worked in Sri Venkateswara Swamy Temple (Sri Vittaleswara Swamy Vari Temple) from 16th May 1993 to 20th June 1997.” It will be interesting to notice what the writ petitioner would say in the Reply Affidavit to these averments contained in the counter-affidavit. In paragraph 3, the writ petitioner asserts as under: “ ……. The averments made in para 3 are incorrect and wrong.” In paragraph 4 of the reply affidavit, this is what the writ petitioner would aver :- “………. The above temple (is) having sufficient income and having good fertile (wet) land.” Thus, the fact emerges that Sri Vittaleswara Swamy Vari Temple at Ramadugu Village obviously does not even have sufficient income to require the services of a Clerk, whose salary can be paid in the time scale of Rs.425 to 650/-. This apart, as was noticed, sub-section (1) of Section 35 empowers the Trustee of any religious institution or endowment, can make appointments of servants and office holders against sanctioned strength and that too after obtaining the prior permission of the competent authority. Proviso to sub-section (1) of Section 35 empowers the Executive Officers of such institutions whose annual income exceeds Rs.10 lacs to make such appointments. Therefore, clearly the Executive Officer of Sri Vittaleswara Swamy Vari Temple at Ramadugu Village in Karimnagar District, at the first place, is not having the power to make appointments of servants or office holders of the institution to which he was the Executive Officer, inasmuch as the annual income of the said temple was not Rs.10 lacs. Secondly, there is no material on record to establish that a post of a Clerk was sanctioned to the said temple for one to contemplate any such appointment to be made. Further, no procedure, much less a fair and transparent one, was followed while appointing the writ petitioner. This is a worse case than ever back door entry cases. The impugned order has also recorded an adverse finding that there was no attendance or acquittence register maintained at Sri Vittaleswara Swamy Vari Temple for one to draw any support in favour of the contention that the writ petitioner got appointed in the said temple and worked as a Clerk there. It was further stated that Sri Nandagiri Balarama Sarma, pujari of the said temple has also given an affirmation that the writ petitioner never worked in that temple. In the absence of any material, which can be credibly relied upon, for one to reasonably believe that the writ petitioner was actually appointed as a Clerk in Sri Vittaleswara Swamy Temple and that he has also rendered service to the said temple, it has to be concluded that there is no valid appointment in the eye of law in favour of the writ petitioner for him to gain any foothold to work against any of the posts, in any other temple or institution or office. Similarly, the claim of the writ petitioner that he was transferred to Sri Raja Rajeswari Devi Temple at Warangal is again a claim without any legal basis. Section 39 of the Endowments Act enables the Commissioner to transfer any office holder or servant attached to a charitable or religious institution or endowment, from one institution to any other institution or endowment, in accordance with such Rules as may be made by the Government in that behalf. Sub-section (2) of Section 39 further makes it clear that the Deputy Commissioner or the Assistant Commissioner, as the case may be, having jurisdiction over the area shall have power to transfer any office holder or servant attached to a charitable or religious institution or endowment from that institution to any other institution or endowment in accordance with such Rules as may be made by the Government in this behalf. The writ petitioner has not produced any such order of the competent authority transferring him to Sri Raja Rajeswari Devi Temple at Warangal. Perhaps, the writ petitioner, being an unemployed individual, has been taken for a ride by someone to exploit his innocence as well as his anxiety to get employed in some institution or the other. Unfortunately, it appears, the Endowments Department has created enough of a breeding ground for these speculative elements to gain currency. The claim of the writ petitioner with regard to violation of Articles 14, 16 and 311(2) of the Constitution of India is more imaginary than being real. Until and unless he is able to establish his right to seek appointment, relating to any office under the State, he cannot invoke Article 16 of the Constitution and similarly the protection under Article 311 is exclusively available to the members of the civil service of a State or holders of civil posts under the State. I am not able to find any right in the hands of the writ petitioner to invoke these provisions of the Constitution. Perhaps, the Commissioner of Endowments has preferred to provide the writ petitioner an opportunity and thus, got conducted the enquiry. Obviously, the Commissioner of Endowments never wanted to condemn the writ petitioner even without providing him any opportunity. Since the writ petitioner could not demonstrate any right of his, either vested or otherwise, to hold any post, in any temple or endowment or religious institution in accordance with law, the other contentions canvassed by him need not be gone into. For these reasons, I do not find any merit in this Writ Petition and it is accordingly dismissed, but however, without costs. ---------------------------------- (NOOTY RAMAMOHANA RAO, J) 1st December 2009 ksld