IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.09.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.20024 of 2011 and M.P.No.1 of 2011 FORCE 1 Guarding Services Pvt. Ltd., rep by its Managing Director Capt.Shibu Issac, 18, Suvarna Darshar', 47,2nd Main Road, Gandhinagar, Chennai-600 020. .. Petitioner Vs. 1.The State of Tamilnadu, rep by the Secretary to Government, Hindu Religious and Charitable Endowments Department, Fort St. George, Chennai-600 009. 2.Commissioner, Hindu Religious and Charitable Endowments Department, Mahatma Gandhi Road, Nungambakkam, Chennai-600 034. 3.Arulmigu Subramaniya Swami Thirukoil, rep by its Joint Commissioner / Administrative Officer, Thiruchendur, Thootukudi District. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the third respondent and to quash the Tender Notice No.3259/2011/A3-1, dated 29.7.2011 which disqualifies the petitioner company from the Tender Bid and all further proceedings thereof. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.P.S.Raman, SC for Mr.Sanjay Ramaswami For Respondents : Mr.S.Kandasamy, Spl.G.P.(HR&CE) - - - - ORDER This matter came to be posted on being specially ordered by the Hon'ble Chief Justice vide order dated 27.09.2011. 2.The matter relates to outsourcing of security services of Arulmigu Subramaniya SwamyThirukoil at Tiruchendur. 3.Tiruchendur, “beautiful city” was until 1860 the headquarters of the old Panchamahal taluk. In 1911 was again restored to the equivalent of its old position as the capital of the newly- formed taluk of Tiruchendur. On the sea front stands the famous temple dedicated to the divine founder of the place. The building is somewhat curiously arranged, the Utsavar, named Shanmugar, that is, the god whose idol is taken in procession, having a shrine with its full complement of mantapams separate from the shrine of the god Subramanya himself and facing an opposite direction. Within the last few years a handsome mantapam, carved in the traditional style, has been erected in front of the Shanmugar shrine. The original portion of the temple, containing the shrine of Subramanyaswami and his two Ammans, is cut out of the sand-stone rock; the cliff has been left as far as possible to form the circuit walls, pillars and reinforcements of stone being added to support the stone superstructure. At one point in the outer circuit, a shrine dedicated to Vishnu has been hollowed out of the rock itself. Wisely taking advantage of the cliff, the builders placed the great gopuram apart from the temple and have thus provided a striking mark for mils around both by land and sea. [See : Government Tirunelveli Gazetteer (1916), compiled by H.R.Pate, I.C.S, Republished by Manonmaniam Sundaranar University – (1993)]. 4.The petitioner is a private limited company represented by its Managing Director Captain Shibu Issac (Christian by faith). He has filed the present writ petition seeking to challenge a condition found in the Notice Inviting Tender (NIT) issued by the third respondent, i.e., Arulmigu Subramaniya Swamy Thirukoil represented by its Joint Commissioner-cum-Administrative officer, Tiruchendur, dated 29.7.2011 insofar as the tender condition disqualifying the petitioner company from giving their tender bid. 5.When the writ petition came up on 26.08.2011, notice was taken by the learned Special Government Pleader (HR&CE). Subsequently, on 5.9.2011, this court had directed the department to https://hcservices.ecourts.gov.in/hcservices/ file a counter affidavit and an interim stay was granted from finalizing the tender for a period of one week. Subsequently when the matter came up on 12.9.2011, the learned Judge who initially heard the matter disqualified himself from hearing the case, but however he had extended the interim stay. Thereafter, when the case came up on 20.9.2011 before another learned Judge, she also expressed her inability to hear the case and directed the case to be posted before some other Court. However the interim stay was extended by one more week from 20.9.2011. It was after that order, the matter was directed to be posted before this court. 6.On behalf of the third respondent, a counter affidavit was filed on 9.9.2011. Heard the arguments of Mr.P.S.Raman, learned Senior Counsel leading Mr.Sanjay Ramaswami, learned counsel for the petitioner and Mr.S.Kandasamy, learned Special Government Pleader appearing for the respondents including the third respondent. 7.The case of the petitioner was that the third respondent temple on 31.7.2009 had issued a tender notification calling for security contract to the temple for supplying of security guards numbering about 60 persons. The tender was for a period of one year. In that tender condition No.14, it was stated that the company which is bidding for the security contract must run by persons belonging to Hindu Religion and persons supplied by them (i.e., security guards), also must belonged to the Hindu religion. It is the case of the petitioner that they had bid for the contract and were awarded the contract from 1.10.2009 to 30.9.2010 for a period of one year. Subsequently, the contract was extended from 1.10.2010 to 30.9.2011 with the same terms and conditions. According to the petitioner, even though the petitioner company was owned by Christians predominantly, the security personnel supplied by them and posted in and around the temple were all Hindus. Its Regional Manager one Captain M.Madhavan was also an Hindu and he was corresponding with the Temple. Since the petitioner company is an incorporated company, it has got no caste, community, religion or creed. But however when the tender notification was called by the third respondent on 30.6.2011 for the very same purpose i.e., security contract, the same old condition, i.e., that the tenderer body must be run by Hindus and the staff deployed by them must also be Hindus was stipulated. 8.The petitioner had submitted his tender document and informed the third respondent that Captain Madhavan will be authorized to enter, execute and sign agreements and other contract related documents. When the petitioner company's representatives went to submit the tender document, they were informed by the third respondent that they will be disqualified in terms of paragraph 20 of the tender condition set out above. It was at that stage, they filed the present writ petition contending that the condition was illegal, unconstitutional and that the company cannot have any identity. It was an irrational condition. Merely because the Managing Director happened to be a Christian, it was irrational to reject the tender https://hcservices.ecourts.gov.in/hcservices/ and the tender condition was violative of Article 14 of the Constitution. 9.In reply to the averments, in the counter affidavit dated 9.9.2011, the third respondent Joint Commissioner / Executive Officer informed that the earlier contracts were awarded without knowing that the Managing Director of the Company was a Christian and not eligible to apply for the contract. But when they came to know that the company was run by Christians and it being contrary to the tender condition, they were informed that they cannot bid for the security contract. Even the present tender form was obtained by them by sending their Regional Manager who was an Hindu. But the fact remains that their company was run by Christians. It was also stated that tender condition No.20 stipulated in the Notice Inviting Tender (NIT) was valid and not violative of Articles 14 and 16 of the Constitution. Even under Section 10 of the Tamil Nadu Hindu Religious and Charitable Endowment Act, it was stipulated as follows: “The Commissioner, the Additional Commissioner every Joint, Deputy or Assistant Commissioners and every other officer or servant appointed to carry out the purpose of this Act, by whomsoever appointed, shall be a person professing the Hindu Religion and shall cease to hold office as such when he ceases to profess that religion.” (Emphasis added) 10.It was the opinion of the temple that it was not proper to entrust the security service to a company owned by a non Hindus due to various reasons. The petitioner company cannot claim any equality on the said issue. On earlier occasions, the temple was not posted with correct information about the composition of the company. The company was disqualified on the ground of lack of eligibility. Hence it prayed for dismissal of the writ petition. 11.Mr.P.S.Raman, learned Senior Counsel heavily relied upon a judgment of the Supreme Court in N.Adithayan Vs. Travancore Devaswom Board and others reported in (2002) 8 SCC 106 for contending that any custom or usage irrespective of even any proof of their existence in pre-constitutional days cannot be accepted as a source of law to claim any right when it is found to violate human rights, dignity and the concept of social equality. Running the security service is not an integral part of the religion and it is secular in character. Inasmuch as the temple is managed by the HR&CE department appointed by the State, it cannot introduce a condition which makes invidious classification, thereby offending Article 14 of the Constitution. In paragraph 18 of the judgment, the Supreme Court had observed as follows: 18. ......The decision in Shirur Mutt case1 and the subsequent decisions rendered by this Court had to deal with the broad principles of law and the scope of the scheme of rights guaranteed under Articles 25 and 26 of the Constitution, in the peculiar context of the https://hcservices.ecourts.gov.in/hcservices/ issues raised therein. The invalidation of a provision empowering the Commissioner and his subordinates as well as persons authorized by him to enter any religious institution or place of worship in any unregulated manner by even persons who are not connected with spiritual functions as being considered to violate rights secured under Articles 25 and 26 of the Constitution of India, cannot help the appellant to contend that even persons duly qualified can be prohibited on the ground that such person is not a Brahmin by birth or pedigree. None of the earlier decisions rendered before Seshammal case4 related to consideration of any rights based on caste origin and even Seshammal case4 dealt with only the facet of rights claimed on the basis of hereditary succession. The attempted exercise by the learned Senior Counsel for the appellant to read into the decisions of this Court in Shirur Mutt case1 and others something more than what it actually purports to lay down as if they lend support to assert or protect any and everything claimed as being part of the religious rituals, rites, observances and method of worship and make such claims immutable from any restriction or regulation based on the other provisions of the Constitution or the law enacted to implement such constitutional mandate, deserves only to be rejected as merely a superficial approach by purporting to deride what otherwise has to have really an overriding effect, in the scheme of rights declared and guaranteed under Part III of the Constitution of India. Any custom or usage irrespective of even any proof of their existence in pre-constitutional days cannot be countenanced as a source of law to claim any rights when it is found to violate human rights, dignity, social equality and the specific mandate of the Constitution and law made by Parliament. No usage which is found to be pernicious and considered to be in derogation of the law of the land or opposed to public policy or social decency can be accepted or upheld by courts in the country.” 12.It is not clear as to how the said judgment is of any assistance to the petitioner. The said judgment only dealt with the issue of properly trained and qualified persons to be appointed as Poojaries regardless of caste among the Hindus. It is against the introduction of caste criteria for appointing poojaris being made as a requirement for the post. The decision revolved around Articles 25 and 26 of the Constitution in order to find out whether the particular activity in appointing poojaris in temples would be integral part of the religion. 13.The condition found in the NIT can be challenged only on https://hcservices.ecourts.gov.in/hcservices/ the touchstone of Article 14 of the Constitution that too if it is stipulated by the State or an instrumentality of a State coming within the meaning of Article 12 of the Constitution. Such a right can be enforced only against the State within the meaning of Article 12 of the Constitution. In the present case, the third respondent is a temple managed by its own Board of Trustees and its activities are only supervised by the officers of the HR&CE Department. Even those officers who are appointed to supervise the temple can be only Hindus as per Section 10 referred to above. Such a provision was constitutionally authorised in terms of Article 16(5) of the Constitution, which reads as follows: “16(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.” 14.The appointment of office holders and servants in the religious institution can be made only by the trustees under Section 55(1) of the HR&CE Act. In case such of those servants who are attached to religious institution are imposed with any penalty, they have a right of appeal to the Governmental authorities notified under the Act. Such employees are appointed by the Board of Trustees on behalf of temple and the master servant relationship exists only between the temple and those employees. Merely because the Government supervised the affairs of the temple, it does not bring any direct relationship between those servants and the State Government. Therefore, the Joint Commissioner in his capacity as an Executive Officer of the temple instead of appointing the security guards directly had outsourced that employment and had called for tenders from qualified contractors. He only acts on behalf of the temple and not on behalf of the Government. Hence the contention that the Joint Commissioner holding the office of the Executive Officer must discharge a secular function in the matter of appointment cannot be accepted as a matter of any constitution or legal principles. On the other hand, he is bound by Section 10 of the HR&CE Act in recruiting any person. Under Section 26(1)(a), even the trustees cannot be appointed if they do not profess Hindu Religion. Therefore, starting from the Commissioner, HR&CE Department down to the last grade servants in the temple, they can only be the Hindus and not persons professing any other faith. 15.The contention of the petitioner that as a contractor, as he can supply Hindu security guards and supervise their work by a Hindu supervisor for the temple does not take them away from disqualification. If a temple as a recruiting agency can only appoint Hindus, then an inter-mediatory contractor to whom the security work was outsourced cannot be non-hindus. On the other hand, the inter- https://hcservices.ecourts.gov.in/hcservices/ mediatory contractor like the security agency will be an employer vis-a-vis the outsourced security guards and they will be the agent of the temple which is the principal employer. If the contention of the learned Senior Counsel is accepted, then it is very easy to ask a non-hindu agency to discharge the functions of a temple through employees supplied by them who are Hindus. Such a scheme was never conceived by the Act nor based upon Article 16(5) of the Constitution. Such a construction advanced will lead an anomalous situation, because the contractor will be a non-hindu and the employees supplied by them are Hindus. As rightly stated such a situation may create problems for the temple. Ultimately, it is for the temple to decide such matters. Guarding a temple or a place of worship is a sensitive issue and in such matters, appropriate precautionary measures will have to be taken by the authorities concerned. 16.The learned Senior Counsel however contended that as laid down by the Supreme Court in N.Adithayan's case (cited supra), Articles 25 and 26 extends a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion and as to what really constitutes an essential part of religion or religious practice has to be decided by the courts with reference to the doctrine of a particular religion or practices regarded as parts of religion, came to be equally firmly laid down. [See para 16 of the judgment]. 17.Therefore, the learned Senior counsel contended that so long as the petitioner company has nominated an Hindu Regional Manager to deal with the issue and had promised to appoint Hindu security guards, there is no difficulty for the respondent temple to accept their tender. It was unnecessary that even a company must be owned by Hindus. One must have secular approach in the matter of appointment of security guards, as it is not coming under an essential part of religion. 18.Before dealing with the legal submissions, one must understand the difference between the Europe and India in understanding the concept of secularism. Professor K.N.Panikkar (Jawaharlal Nehru University) in his book titled “Communal Threat Secular Challenge” (published by Earthworm Books Pvt. Ltd., Chennai, 1997 First Edition) in page 54 had observed as follows: “This basic difference between India and the European situation imparts an entirely different problematic to the question of the secular state in India. The Indian State did not have to struggle to free itself from the power of the Church but only to locate itself in relation to citizens who belonged to different religious denominations. In this context, the Indian State, right from the medieval times inherited, despite tensions and deviations, a political practice which respected the multi-religious character of Indian society. For instance, https://hcservices.ecourts.gov.in/hcservices/ the administrations of both Hindu and Muslim rulers had a fair share of representatives from both religions. The British pursued a policy of religious neutrality, even if they resorted to the strategy of divide and rule. And the Indian National Congress during the anti-colonial struggle defined its aim in terms of secular political objectives and remained faithful to non-communal nationalism. These historical antecedents contributed to the independent Indian state adopting equal respect for all religious and equal distance from all religions as its secular ideal. Although in actual practice the state did not always adhere to these principles, the democratic structure of the Indian polity is firmly anchored in them.” 19.Section 28(1) of the HR&CE Act deals with the care that was required on the part of the trustees of the temple and the section reads as follows: “Subject to the provisions of the Tamil Nadu Temple Entry Authorisation Act, 1947, the trustee of every religious institution is bound to administer its affairs and to apply its funds and properties in accordance with the terms of the trust, the usage of the institution and all lawful directions which a competent authority may issue in respect thereof and as carefully as a man of ordinary prudence would deal with such affairs, funds and properties if they were his own.” 20.While dealing with the said provision, the Supreme Court in Seshammal Vs. State of Tamil Nadu reported in (1972) 2 SCC 11 in relation to appointment of Archakas on hereditary basis held that hereditary principle in appointment was not the usage and it may be by way of convenience. But wherever there are hereditary successions, such religious usage will be permissible if it falls under Article 25 (1)(b) of the Constitution and any legislation can be permissible only under Article 25(1)(a) with regard to management of a temple. In paragraph 21, while dealing with the power of appointment of servants in a temple, it was observed as follows: 21... It has been held in K. Seshadri Aiyangar v. Ranga Bhattar10 that even the position of the hereditary Archaka of a temple is that of a servant subject to the disciplinary power of the trustee. The trustee can enquire into the conduct of such a servant and dismiss him for misconduct. As a servant he is subject to the discipline and control of the trustee as recognised by the unamended Section 56 of the principal Act which provides “all office-holders and servants attached to a religious institution or in receipt of any emolument or perquisite therefrom shall, whether the office or service is hereditary or not, be controlled by the trustee and the trustee may, after following the https://hcservices.ecourts.gov.in/hcservices/ prescribed procedure, if any, fine, suspend, remove or dismiss any of them for breach of trust, incapacity, disobedience of orders, neglect of duty, misconduct or other sufficient cause”...... (Emphasis added) 21.From the above, it can be seen that the power to appoint servants is an exclusive function of the trustee or the trust board. Such servants so appointed will be subject to disciplinary control of the trustees. Seshammal's case (cited supra) came to be quoted with approval in Sri Adi Visheswara of Kashi Vishwanath Temple Vs. State of Uttar Pradesh reported in (1997) 4 SCC 606. In further elucidating the scope of Articles 25 and 26, in paragraph 31 it was observed as follows: “31....It is not every aspect of the religion that requires protection of Articles 25 and 26 nor has the Constitution provided that every religious activity would not be interfered with. Every mundane and human activity is not intended to be protected under the Constitution in the garb of religion. Articles 25 and 26 must be viewed with pragmatism. By the very nature of things it would be extremely difficult, if not impossible, to define the expression “religion” or “matters of religion” or “religious beliefs or practice”. Right to religion guaranteed by Articles 25 and 26 is not absolute or unfettered right to propagate religion which is subject to legislation by the State limiting or regulating every non-religious activity. The right to observe and practise rituals and right to manage in matters of religion are protected under these articles. But right to manage the Temple or endowment is not integral to religion or religious practice or religion as such which is amenable to statutory control. These secular activities are subject to State regulation but the religion and religious practices which are an integral part of religion are protected. It is a well- settled law that administration, management and governance of the religious institution or endowment are secular activities and the State could regulate them by appropriate legislation. This Court upheld the A.P. Act which regulated the management of the religious institutions and endowments and abolition of hereditary rights and the right to receive offerings and plate collections attached to the duty.” (Emphasis added) 22.But in the State of Tamil Nadu, the only law that is available is the Tamil Nadu Hindu Religious & Charitable Endowments Act. Section 10 of the Act clearly states that all servants appointed for temple must be hindus right from the Commissioner to the last grade servants, which obviously includes even the security pesonnel. Merely because the Joint Commissioner who is also entrusted with the https://hcservices.ecourts.gov.in/hcservices/ work of the Executive Officer is the Government servant and therefore, he should have observed non discrimination in the matter of religion cannot be accepted. Such a contention was squarely rejected by the Supreme Court in M.P.Gopalakrishnan Nair Vs. State of Kerala reported in (2005) 11 SCC 45. It was held that such government functionary cannot be equated with the power of the management. It is necessary to extract the following passage found in paragraph 46 of the said judgment, which reads as follows: “46**. We have noticed hereinbefore that it is one thing to say that prejudice may be caused if the management of the temple is entrusted to a person who has no faith in temple worship but it is another thing to say that such persons be nominated by those who would not only be believers in God but also in temple worship. The function of a statutory and constitutional authority while exercising its power of nomination cannot be equated with the power of management of a temple, particularly in relation to the religious aspects involved therein.” (Emphasis added) 23.The further contention that since the petitioner company has promised to employ only Hindu security guards managed by