WP No.16891 of 2007 Between V.Dhanunjaya Petitioner Vs. The Government of A.P. and another .. Respondents Counsel for the petitioner : Counsel for the respondents : The Court made the following : THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR WP No.16891 of 2007 ORDER: ( Per Sri GM, J ) The short question that falls for consideration in this writ petition is as to as to whether the impugned action of the authorities in excluding the employees working in the Regional Joint Commissioner and Deputy Commissioner cadre temples from being recruited to the post of Executive Office Grade I, require any interference by this Court ? The petitioner was appointed in the establishment of Sri Netti Kanti Anjaneya Swamyvari Temple, Kasapuram Village, Guntakal Mandal, Anantapur District as clerk-cum-typist on 1-5-1991 and was promoted as Senior Assistant. Subsequently he was further promoted as Superintendent on 16-8-2003 in the said temple. The petitioner at present is working as Superintendent in Sri Bramaramba Mallikarjuna Swamy Devastanam, Srisailam. According to the petitioner, he passed necessary departmental tests to be eligible to be appointed to the post of Executive Officer Grade I. The 1st respondent-Government in exercise of powers conferred under section 29 of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (Act 30 of 1987) framed Rules and the same were notified vide G.O.Ms.No.262 Revenue (Endowments Department) dated 20-5-2002, wherein post in Class I category was constituted into three grades, consisting of Executive Officer Grade I, Grade II and Grade III. The method of recruitment to the post of Executive Officer Grade I, with which we are concerned with, is by direct recruitment or ( ii) by promotion from the Executive Officer Grade II or ( iii) by transfer from the category of Superintendents working in the institutions published under section 6(a), (b), (c) and (d) of the Act, other than that of Regional Joint Commissioner and Deputy Commissioner institutions. The petitioner states that prior to up-gradation of Sri Netti Kanti Anjaneya Swamivari Temple, in which the petitioner got appointed initially, he was within the zone of consideration for promotion to the post of Executive Officer Grade I, and that juniors to the petitioners have been upgraded and promoted to the post of Executive Officer Grade I. The grievance of the petitioner is that the Commissioner vide proceedings dated 25-2-2007 has rejected his claim on the ground that as per G.O.Ms.No.262 dated 20-5-2002 the method of appointment of Executive Officer Grade I is by transfer from the category of Superintendent of A.P. Ministerial Service of Endowments Departments and Superintendents working in the institutions published under Section (a), (b), (c) and (d) of the Act 30 of 1987 other than Regional Joint Commissioner and Deputy Commissioner cadre institution. The main ground of attack of the learned Senior Counsel for the petitioner Sri P. Gangaiah Naidu, is that exclusion of Superintendents working in Regional Joint Commissioner and Deputy Commissioner cadre temples for appointment to the post of Executive Officer Grade I is discriminatory and violative of Article 14 and 16 of the Constitution of India. It is further contended that the Superintendents working in the Deputy Commissioner and Regional Joint Commissioner cadre temples do not have any other promotional avenues to become government servants to be appointed to the post of Executive Officer-I in terms of Section 29 of the Act. The persons who are to be appointed as Executive Officers in terms of Section 29 are eligible to become Government servants in terms of Section 4 of the Act, however, such opportunity is being deprived without any reasoning. The Government, it is contended, has not framed any rules for providing avenues to the Superintendents working in the Deputy Commissioner cadre temples, therefore they are deprived of opportunity to become the Executive Officers. Heard the learned Government Pleader for Endowments. The Government vide the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (Act 30 of 1987), inter alia, made a provision for employees for Charitable and Religious institutions to become Government servants by making a provision for appointment by transfer to the higher posts. As noted above, the Government framed A.P. Charitable and Hindu Religious Institutions and Endowments Subordinate Service Rules vide G.O.Ms.No.262 dated 20-5-2002 in exercise of powers conferred under section 153 read with Section 29 of the Act, wherein it is mentioned in the said Rules that in a cycle of 20 vacancies to the post of Executive Officer Grade I, 5 vacancies are earmarked by direct recruitment, 9 vacancies by promotion from the Executive officer Grade II, 2 vacancies by transfer of Superintendents of A.P. Ministerial services of Endowments Department and 4 vacancies by appointment of superintendents working in the institutions under section 6(a), (b), (c) and (d). At the time of publication of the said Rules, the petitioner was working in section 6(a) institution. The Rules framed in G.O.Ms.No.262 dated 20-5-2002 provide opportunity of promotion to the different categories of employees working in the charitable and religious institutions. Section 8 of the Act empowers the Commissioner and Additional Commissioner to ensure that the religious institutions are properly administered and their income is duly appropriated for the purpose for which they were found and are existing. In exercise of powers under section 8 read with section 12 of the Act, the Commissioner has identified certain institutions to be brought under the control of the Regional Joint Commissioner or Deputy Commissioner of Endowments. In this regard it is apt to refer to Section 29 of the Act, which regulates the appointment and duties of Executive Officers. The relevant portion of Section 29 of the Act reads as under : “ There shall be an Executive Officer for every Charitable or Religious Institution or Endowment to be appointed by the Government in case of institution or Endowment to be appointed by the Government in case of institutions and Endowments having income of rupees one crore and above and by the Commissioner in case of other Institutions and Endowments included in the lists published under clauses (a) and (b) of Section 6. In respect of charitable or religious institutions or endowment having income of less than rupees two lakhs per annum, and included in the list published under clause (c) of Section 6, it shall not be necessary to appoint an executive officer. The cadre of Executive Officers to be appointed under this section for the respective institutions on the basis of the income of the Institution or Endowment shall be as maybe prescribed. ….. (2) The number of Executive Officers in each grade shall be as may be prescribed by the Government from time to time and the Commissioner shall be the appointing authority for the Executive Officer of Grades I, II and III : Provided that forty percentum of vacancies in third grade Executive Officers posts and twenty percentum of the vacancies in other two grades of Executive Officers shall be filled by the employees belonging to the institutions or endowments or prescribed grade; ….. (3) The Executive Officer appointed and exercising the powers and discharging the duties shall be a person professing Hindu Religion and shall cease to exercise those powers and discharge those duties when he ceases to profess religion.”… In terms of section 29, the Government is authorised to constitute grade of executive officers and prescribe the powers, duties to such executive officers. In terms of proviso to section 29(2) of the Act, 20% of the vacancies in the grade of Executive Officers are to be filled up by employees belonging to institutions or endowments of the prescribed grade. In exercise of the said power, the Government framed rules in G.O.Ms.No.262 dated 20-5-20002, however, excluding the employees working in the Regional Joint Commissioner and Deputy Commissioner cadre temple employees from being appointed to the post of Executive Officers. It is brought to our notice that pay scales of employees of Deputy Commissioner and Regional Joint Commissioner cadre temples would be revised as and when the scales of pay of the Government servants are revised and they would be also paid pension as and when a particular temple is included in Rule 36 of the A.P. Charitable and Hindu Religious Institutions and Endowments, Officer holders and Servants service Rules 2000. Since the employees of Assistant Cadre and Executive Officer cadre temples do not have the scales of pay and facilities available to the Deputy Commissioner and Regional Joint Commissioner cadre temples, and their scales of pay depend upon the income of the temple, and that Superintendents of Deputy Commissioner cadre and Regional Joint Commissioner cadre temples, now got the chance of being promoted as P.A. to Executive Officer, which carries the pay scale of Assistant Commissioner, the Government in its perception excluded the appointment of Superintendent of Deputy Commissioner cadre and Regional Joint Commissioner cadre temples as Executive Officer Grade I, in view of their separate channel of promotion. Further, the respondents in the additional counter affidavit also clarified the position that a P.A. to Executive Officer, being gazetted post, can be directly appointed as Assistant Commissioner by transfer and such opportunity is not available to the Superintendents of Assistant Commissioner Cadre and Executive Officer cadre temple employees. This being the reasonable classification basing on the intelligible differentiation made by the Government, in our view, the allegation that the Superintendents working in the Regional Joint Commissioner and Deputy Commissioner cadre institutions have been deprived of their promotional avenues by excluding them from being appointed to the post of Executive Officer, Grade-I does not merit any consideration. Obviously, it is prerogative of the Government to decide as to the procedure and the channel of promotion to be appointed as Executive Officers, under Section 29 of the Act by fixing appropriate qualifications. We therefore, do not see any merit in the contentions advanced by the learned Senior Counsel for the petitioner. Accordingly, we do not see any ground to entertain the writ petition. The writ petition is misconceived and is dismissed. No costs. ______ GM, J _______ VVA, J Dt: 28- 8-2009 kk THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR W.P. No.16891 of 2007