* THE HON’BLE SRI JUSTICE V.V.S.RAO THE HON’BLE DR. JUSTICE G.YETHIRAJULU AND THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD +WRIT APPEAL No.1789 OF 2004, WRIT PETITION No.24815 OF 2005 AND WRIT APPEAL No.150 OF 2006 % Dated 19-03-2008 WRIT APPEAL No.1789 OF 2004 # N.Ravindra Murthy, S/o.Sri N.Rama Murthy. … Appellant VERSUS $ Shri Veerabhadra Swamy Temple, Bonthupally, Medak District, and others … Respondents. WRIT PETITION No.24815 OF 2005 # Pusala Murali Krishna, S/o.Subrahamanyam. … Petitioner. VERSUS $ The Assistant Commissioner, Endowments Department, Ongole, Prakasam District. … Respondent. WRIT APPEAL No.150 OF 2006 # R.S.P.S.Dattu, S/o.R.Venkata Rao. … Appellant VERSUS $ The Commissioner, Endowments Department, Tilak Road, Boggulakunta, Hyderabad. … Respondent. ! Counsel for petitioners: Sri D.V.Seetha Rama Murthy, Sri N.Guru Gopal. ^Counsel for the Respondents: Sri Vijay Kumar Heroor, G.P. for Endowments, Sri Ch.Satish Kumar. <GIST: >HEAD NOTE: ? Cases referred 1. AIR 1967 SC 884 2. AIR 1986 SC 2166 3. AIR 1993 SC 1321 4. 1997 (4) ALT 769 (DB) = 1997 (5) ALD 285 (DB) 5. 1998 (3) ALT 156 (DB) = 1998 (2) ALD 640 (DB) 6. 2007 (2) ALD 569 7. AIR 1979 SC 193 8. AIR 1988 SC 1883 9. 1992 Supp. (2) SCC 351 10. (1987) 1 SCC 424 11. (2001) 7 SCC 358 = JT 2001 (6) SC 183 12. (2002) 3 SCC 722 = AIR 2002 SC 1351 13. (2002) 7 SCC 273 = AIR 2002 SC 3240 14. (2003) 3 SCC 410 = AIR 2003 SC 843 15. (2004) 9 SCC 686 16. (2005) 2 SCC 271 = AIR 2005 SC 648 17. (2006) 3 SCC 434 = AIR 2006 SC 1489 18. (2007) 6 SCC 143 19. (2004) 5 SCC 409 = AIR 2004 SC 2258 20. AIR 1955 SC 549 21. AIR 1986 SC 847 22. 174 L.T. 416 (HL) 23. (1968) 3 All E.R. 208 24. AIR 1974 SC 37 25. AIR 1976 SC 66 26. AIR 1981 SC 53 27. AIR 1984 SC 161 28. 1984(2) A.P.L.J. 1 (FB) 29. AIR 1978 SC 851 (para 91) 30. 1999 (5) ALT 171 (DB) IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE NINETEENTH DAY OF MARCH TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO and THE HON'BLE DR JUSTICE G.YETHIRAJULU WRIT APPEAL No.1789 OF 2004, WRIT PETITION No.24815 OF 2005 AND WRIT APPEAL No.150 OF 2006 WRIT APPEAL No.1789 OF 2004, (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 04/02/2004 in WP NO : 4649 OF 2003 on the file of the High Court.) Between: N. Ravindra Murthy, S/o. Sri N. Rama Murthy, R/o. Plot No. 35, Opposite to Shahpurnagar, Qutubullapur Municipality, R.R. District. ..... APPELLANT AND 1 Shri Veerabhadra Swamy Temple, Bonthupally, Medak District, rep by its Chairman, G. Bonthupalli, Jinnaram Mandal, Medak District. 2 The Commissioner, Endowment Department, Tilak Road, Hyderabad. 3 The Deputy Commissioner, (S), Endowments Department, Tilak Road, Hyderabad. 4 The Executive Officer, Sri Veerabhadra Swamy Temple, Bonthupally Village, Medak District, .....RESPONDENTS Counsel for the Appellant: Sri K.Santhanam Counsel for the Respondents: Sri Vijay Kumar Heroor WRIT PETITION No.24815 OF 2005 Between: Pusala Murali Krishna S/o.Subrahamanyam Singarayakonda Group Temples, Singarayakonda, Prakasam District ..... PETITIONER AND The Assistant Commissioner, Endowments Department Ongole, Prakasam District. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ or direction more particularly one in the nature of Writ of Mandamus declaring that the respondent has no power, jurisdiction to initiate any disciplinary proceedings against the temple employees and consequently set aside the orders of the respondent in Rc.No.A4/2896/2005, dated 9.9.2005 and pass such other order or orders as this Hon`ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner: Sri N.Guru Gopal Counsel for the Respondent: GP for Endowments WRIT APPEAL NO : 150 of 2006 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 27/12/2005 in WP NO : 27352 OF 2005 on the file of the High Court.) Between: R.S.P.S.Dattu S/o.Ra.Venkata Rao Sri Ramesampeta Group Temples, Ramesampeta, Rangampet Mandal, E.G.District ..... APPELLANT AND The Commissioner, Endowments Department, Tilak Road , Boggulakunta, Hyderabad .....RESPONDENT Counsel for the Appellant:Sri N.Guru Gopal Counsel for the Respondent: GP for Endowments The Court made the following Common Order: THE HON’BLE SRI JUSTICE V.V.S.RAO THE HON’BLE DR. JUSTICE G.YETHIRAJULU AND THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD WRIT APPEAL No.1789 OF 2004, WRIT PETITION No.24815 OF 2005 AND WRIT APPEAL No.150 OF 2006 COMMON ORDER: (Per Hon’ble Sri Justice V.V.S.Rao) Introduction These cases involve question of power of Commissioner, Deputy Commissioner and/or Assistant Commissioner of Department of Endowments (Department Officers) to suspend a temple employee discharging functions of executive officer (hereafter called, person-in- management (PIM)). Liability of a religious institution[1] or temple to pay the salary of PIM who on transfer works in other temple is also another core issue. The reference made by Division Bench disagreeing with the view of another Division Bench in an unreported decision in W.P.No.5736 of 2005 wherein it was held that a PIM shall be deemed to be an employee of Government of Andhra Pradesh (GoAP). The referring bench prima facie opined that in the absence of legislative fiction, temple employees discharging functions of EO cannot be deemed to be employees of Government. Legal Context Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (the Act, for brevity) regulates administration and governance of religious institutions in the State. Section 153 of the Act empowers GoAP to make Rules for carrying out all or any purpose of the Act. Various provisions require an action to be taken ‘as prescribed’, which means prescribed by Rules. To the extent relevant for the purpose, employees serving religious institutions may be divided into two: Executive Officers (EO) appointed and posted as such and secondly, employees of temples - these two classes of persons serving temple are governed by two separate sets of rules. In exercise of powers under Section 29 read with Section 153(1) of the Act, A.P.Charitable and Hindu Religious Institutions and Endowments Subordinate Service (Non- Gazetted) Rules, 2002 (hereafter, Endowment Service Rules) were promulgated. These Rules inter alia provide for conditions of service of EOs, who constitute separate cadre. They are the employees of Department of Endowments, but are under control of the management of the temple. Their service is treated as subordinate service as per Rule 7 of Andhra Pradesh Civil Services (Classification, Conduct and Appeal) Rules, 1991 (hereafter, CCA Rules). In addition to EO wherever posted a religious institution has office holders and servants like archakas, pujaris, clerks, cashiers, assistants and attenders etc. Two different sets of Rules are made in relation to office holders and servants (hereafter, temple employees). Office Holders and Servants Punishment Rules, 1987 (hereafter, Disciplinary Rules) were made for the purpose of Sections 37 and 38 of the Act, which provide for the punishment of office holders and servants. Section 35 of the Act deals with appointment of office holders and servants and sub section (4) thereof is to the effect that qualifications, method of recruitment and temporary appointments, pay and allowances, discipline and conduct and other conditions of service of temple employees shall be such as may be prescribed. For this purpose, Andhra Pradesh Charitable and Hindu Religious Institutions Office Holders and Servants Service Rules, 2000, (hereafter, Office Holders Rules) were promulgated. To a limited extent, by reference, Andhra Pradesh State and Subordinate Service Rules, 1996 (hereafter, General Rules) and CCA Rules are also made applicable. Temple employees The term ‘office holders and servants’ is not defined in the Act. The power of general superintendence and control of institution vests in the Commissioner of Endowments appointed under Section 3(1) of the Act. As per Sections 23(1), 35 to 38 of the Act, over all control of temple employees is given to a ‘trustee’, which as defined in Section 2(29) of the Act includes a board of trustees or trust board constituted under Section 15 read with 17 of the Act. Section 35 of the Act deals with appointment of office holders and servants and reads as below. 35. Appointment of office holders and servants, etc.:- (1) Every vacancy, whether permanent or temporary, amongst the office-holders or servants of a charitable or religious institution or endowment shall be filled by the Trustee. Provided that in the case of a charitable or religious institution or endowment whose annual income exceeds rupees ten lakhs the Executive Officer, shall appoint the office holders and servants thereof. (2) and (3) Omitted (4) The qualifications, method of recruitment and temporary appointments, pay and allowances, discipline and conduct and other conditions of service of the office holders and servants of a charitable or religious institution or endowment, shall be such as may be prescribed. Permanent or temporary employees of a religious institution shall be appointed by trustee. If the annual income of such temple exceeds Rupees ten lakhs, EO shall appoint office holders and servants. Qualifications, method of recruitment etc are provided by Office Holders Rules. EO as provided by the Act has to function under the administrative control of the trustee and therefore, as a necessary corollary in matters of appointment of temple employees, trustee is ultimate decision maker. The exercise of power by trustee is however circumscribed by statutory rules. Even in matters of discipline and punishment of temple employees, ultimate power and jurisdiction is given to the trustee or trust board. Sections 37 and 38 of the Act are relevant and they read as below. 37. Punishment of office holders and servants:-- (1) All office-holders and servants attached to a charitable or religious institution or endowment, shall be under the control of the trustee; and the trustee may, after following the prescribed procedure and for reason to be recorded in writing, impose fine, or order suspension, removal, dismissal or any other prescribed penalty, or any of them for breach of trust, misappropriation, incapacity, disobedience of orders, misconduct, violation of the code of conduct laid down or neglect of duty assigned by or under this Act or other sufficient cause. (2) (3) and (4) Omitted (5) (a) Where it is noticed by the trustee that any office-holder or servant attached to an institution or endowment has not been dealt with suitably by the Executive Officer under sub-section (2), for any of the lapses specified in sub-section (1), the trustee may direct the Executive Officer to take action under sub-section (2), failing which the trustee may, after following the prescribed procedure, impose, by an order in writing any of the penalties specified in sub-section (1). (b) Any office-holder or servant aggrieved by an order passed by the trustee or by the Executive Officer, in pursuance of the direction given under clause (a) may, within sixty days from the date of receipt of the order by him, prefer an appeal to the Commissioner. 38. Power of Commissioner, Deputy Commissioner or Assistant Commissioner to punish office-holders etc., in certain cases:-- (1) where it is noticed by the Commissioner, the Deputy Commissioner or the Assistant Commissioner having jurisdiction that any office holder or servant attached to an institution or endowment has not been dealt with suitably by the trustee or the Executive Officer as the case may be under Section 37 for any of the lapses specified in sub-section (1) thereof, the Commissioner, the Deputy Commissioner or the Assistant Commissioner as the case may be, may direct the trustee or the Executive Officer to take action under Section 37, failing which the Commissioner, the Deputy Commissioner or the Assistant Commissioner as the case may be, may after following the prescribed procedure, impose by an order in writing any of the penalties specified in sub-section (1) of that section on such office-holder or servant. (2) Any office holder or servant aggrieved by an order passed under sub-section (1) may within sixty days from the date of receipt of the order by him, prefer an appeal if such order is passed by-- (a) the Commissioner, to the Government; (b) the Deputy Commissioner, to the Commissioner, and (c) the Assistant Commissioner to the Deputy Commissioner; and any order passed in such appeal shall be final. Section 37 of the Act declares that office holders and servants attached to a religious institution shall be under the control of trustee or board of trustees. They can be dismissed, removed, suspended or fined for breach of trust, misappropriation, incapacity, disobedience, misconduct, violation of code of conduct or neglect of duty or for any other sufficient cause. The exercise of power however is subject to procedure prescribed under Disciplinary Rules. Sub section (2) of Section 37 of the Act provides that if annual income of temple exceeds ten lakh rupees, power to impose any of the penalties, has to be exercised by EO as per rules. Sub section (2) of Section 37 of the Act is given overriding effect, which only means that it has application only in respect of temples classified under Section 6(a) of the Act. In regard to temples, whose annual income is less than five lakh rupees and are classified either under Section 6(b) or 6(c) of the Act, only trustee is given disciplinary power. Sub section (3) of Section 37 of the Act provides for an appeal against order of trustee to appropriate authority and sub section (4) provides further second appeal either to the Government or the Commissioner, as the case may be. Sub section (5) enables trustee to direct EO to take suitable action against office holder. If action is not taken by EO, trustee can take action ignoring EO. Section 38 of the Act is a provision intended to control exercise of disciplinary power by the Board of Trustees or EO, as the case may be in certain situations. If trustee does not deal with an employee, Section 38(1) of the Act empowers appropriate authority of Department of Endowments to direct taking action under Section 37 of the Act and in disobedience thereof impose penalties under Section 37(1) of the Act. Can temple employee attached to religious institutions be transferred to another religious institution? The Commissioner, Additional Commissioner or Regional Joint Commissioner, Deputy Commissioner and Assistant Commissioner are appointed under Section 3 of the Act. Section 8 of the Act enumerates powers and functions of Commissioner and Additional Commissioner. The Administration of religious institutions shall be under the general superintendence and control of Commissioner. This power includes passing of any order, which may be necessary to ensure that all religious institutions are properly administered and their income is duly and properly used. In addition to general power, Section 39 of the Act provides for transfer of temple employees. Section 39(1) of the Act confers power on the Commissioner to transfer any temple employee attached to religious institution to any other institution in accordance with the Rules made by Government. Section 39(2) of the Act confers power of transfer on Deputy Commissioner or Assistant Commissioner, as the case may be having jurisdiction over an area. Rules which are made by the Government are not brought to the notice of this Court. In the absence of Rules laying down modalities for exercise of power of transfer, it can be presumed that such power has to be exercised keeping in view the provisions of Section 8(1) of the Act. That is to say, transfer of temple employee from one institution to another institution has to be effected keeping in view proper administration of religious institution. Office Holders Rules Reverting back to Section 35 of the Act, which deals with appointment of temple employees, one may also notice Office Holders Rules promulgated by the Government under Section 35(4) read with Section 153 of the Act. In these comprehensive Rules, office holder or servant is defined, to include a person, who holds office to which an inam is granted, confirmed or recognized by the Government or which is remunerated by the institution concerned, and who is either whole time or part time functionary. As per Rule 2(e) of these Rules, the term ‘ulthurai servant’ means a servant whose duties relate mainly to performance and rendering assistance in puja and rituals to the deity, recitation of mantras, Vedas and prabhandas etc. They provide for qualifications, appointment, probation, seniority, promotion, resignation etc. In respect of eight (8) big temples like Bhadrachalam temple, special additional provisions (Rules 37 to 46) are also made. They extend certain Government employees’ benefits like leave, leave salary, leave travel concession, surrender leave, family planning incentives etc to employees of eight temples. Rule 6 of the Office Holders Rules reiterates that the appointing authority for all posts shall be as specified in Section 35(1) of the Act, i.e. trustee or trust board as the case may be. Rule 4 of Office Holders Rules makes reference to general rules and conduct rules applicable to public servants. It reads: 4. Applicability of other rules:- (1) The rule of special representation envisaged in rules 22 and 22-A of the Andhra Pradesh State and Subordinate Service Rules shall apply to the appointment by direct recruitment to all posts other than Ulthurai servants. (2) The conduct rules and Government Orders pertaining to the maintenance of personal files which are applicable to Government employees shall apply to the employees of Institutions and endowments from the cadre of the Superintendents and other employees drawing the scale of pay applicable to the cadre of Superintendent. A plain reading of the above would show that rule of reservation envisaged by General Rules is applicable to the appointment by direct recruitment to all the posts of office holders and servants. But Government Conduct Rules are applicable only to those persons holding the posts of superintendence and above in the temple establishment. To say in other words, the CCA Rules or Government Conduct Rules have no application to the posts of UDC, LDC, Assistants, class IV servants and helpers in the temple establishment. This is understandable because the disciplinary matters of temple employees are covered by Disciplinary Rules promulgated by the Government vide their orders in G.O.Ms.No.830, dated 18.08.1989 in exercise of powers under Sections 37 and 38 read with Section 153 of the Act. Disciplinary Rules of temple employees Rule 2 of Disciplinary Rules applicable to temple employees defines competent authority means trustee or executive officer as the case may be of a religious institution to which such temple employee is attached. In addition to the penalties specified in Section 37(1) of the Act, penalties such as censure, withholding of increments or promotion, reduction to a lower rank in the seniority or to a lower stage in the time scale of party and recovery of pay for pecuniary loss can also be imposed on temple servants. What is the procedure to be followed in disciplinary enquiries against temple employees? Rules 4, 5 and 6(1) contain procedure and are extracted below: 4. No order imposing, on an office-holder or servant attached to a Charitable or Religious Institution or Endowment, any of the penalties specified in Section 37 and Rule 3 above other than an order based on facts which have led to the conviction of the office-holder or servant by a Criminal Court shall be passed except after following the procedure laid down in Rule 19 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1963: [2] Provided that this rule shall not apply where the authority competent to impose the penalty is satisfied that, for reasons to be recorded in writing, it is not reasonably practicable to hold inquiry or give opportunity as required under aforesaid Rule 19. 5. All or any of the provisions of the aforesaid Rule 19 may, in exceptional cases and for special and sufficient reasons to be recorded by the competent Authority in writing, be waived where there is difficulty in observing fully the requirements of that rule provided that such waiver does not cause any injustice to the office-holder or servant charged. 6. (1) An office-holder or servant attached to a charitable or religious institution or endowment may be ordered to be under suspension from office or service by the trustee, the Executive Officer, the Assistant Commissioner, the Deputy Commissioner or the Regional Joint Commissioner or the Additional Commissioner or the Commissioner, as the case may be, pending investigation or enquiry into grave charges where such suspension is necessary in public interest: Provisos omitted Rule 4 makes a reference to procedure laid down in CCA Rules. Though reference is made to Rule 19 of CCA Rules of 1963, by reason of the amendment, it may be mentioned that Rule 20 of CCA Rules of 1991 applies and no order imposing any major penalty can be imposed without following procedure laid down in Rule 20 in CCA Rules, 1991. Rule 5 is an exception to Rule 4 and in certain circumstances the procedure under CCA Rules can be waived. Rule 6 speaks about suspension of a temple employee pending enquiry. Though in first blush it appears to confer power on the departmental authorities, a careful reading would show that power of placing temple employee under suspension pending enquiry has to be exercised by the trustee or EO. Having regard to Section 38 of the Act, Rule 6 has to be understood as conferring power on the department officers in the event of failure on the part of the trustee to place a temple employee under suspension pending enquiry. If the rule is read as conferring power on departmental officers, the same may render itself ultra vires provisions of Section 38 of the Act. A rule made by delegated legislative authority has to be interpreted in tune with the provisions of the Act. Executive Officers EOs are treated distinctly separate from temple employees. Section 2(13) of the Act defines EO as to include trust board. Even Section 3 of the Act, which provides for appointment of a hierarchy of endowment officers does not deal with EOs. Section 29 of the Act provides for appointment and duties of EOs. To the extent necessary, it reads as below. 29. Appointment and duties of Executive Officer:- (1) The Government may constitute not more than three charitable or religious institutions or endowments each of whole annual income is rupees fifty thousand but does not exceed rupees one lakh into such groups as may be prescribed. (2) For each such group of charitable or religious institutions or endowments there shall be appointed an Executive officer for exercising the powers and discharging the duties conferred on him by or under this Act. (3) The Government may for purpose of this Act, constitute such grade of Executive officers, prescribing their appointing authorities and authorize them to exercise such powers and discharge such duties as may be prescribed: Provided that twenty percent of vacancies in each grade of Executive Officers shall be filled by the employees belonging to the institutions or Endowments of prescribed grade. Provided further that, it shall be competent for the Government to appoint a Regional Joint Commissioner, a Deputy Commissioner or an Assistant Commissioner as an Executive Officer. (4) omitted (5) (a) to (c) omitted (d) Where there is no Executive Officer in respect of any Charitable or Religious Institution or Endowment the trustee or the Chairman of the Board of Trustees or any employee of any Institution or Endowment duly authorized by the Commissioner in this behalf shall exercise the powers perform the functions and discharge the duties of an Executive officer. (6) The Executive Officer appointed under this section shall be the employee of the Government and the conditions of his service shall be such as may be determined by the Government. The salary, allowances, pension and other remuneration of the Executive Officer shall be paid in the first instance out of the Consolidated Fund of the State and later recovered from the Endowments Administration Fund established under Section 69 of this Act. On an analysis