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TMI Blog2012 (1) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... eities is no exception. Arulmigu Shri Vaithianathaswamy Temple situated at Vaitheeswarankoil is built by the great Chola Kings of ancient times. It has been renovated over the years by the subsequent rulers of the tamil country. The Temple has Lord Shiva as a presiding deity. During the British rule and more particularly in the year 1842 the then Government had handed over the management of the Temple to the Pandarasannadhi of Dharmapuram Adheenam. As they were allowed to continue over the years through the administration of the Temple, the successive Adheenams were recognised as Hereditary Trustees. The Madathiapathy of Dharmapuram Adheenam has been recognised as Hereditary Trustee as per the scheme framed by this Court. 3.When an Executive Officer was appointed by the Hindu Religious and Charitable Endowments Board, the same was put into challenge by the Dharmapuram Adheenam. Ultimately, the issue was concluded by the decision of the Honourable Apex Court in Sri La Sri Subramanya Desiga Gnanasambanda Pandarasannadhi vs. The State of Madras [1966 II MLJ 1]. The Honourable Apex Court while approving the scheme framed was pleased to observe as follows: 7....It is brought to ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 21916 of 2009. This Court by an order dated 27.10.2009 directed the respondent No. 1 to consider the claim of the petitioners therein to pay the salary as per the Government Order passed in G.O.Ms. No. 257, Tamil Development Culture and Religious Department, dated 10.06.1998. Challenging the said order of the learned single Judge, an appeal was preferred by the petitioner herein in W.A. No. 1862 of 2009. By the order dated 15.03.2010, the Honourable Division Bench has held as follows: 4.In these circumstances, without going into the merits, the writ appeal is allowed and the order of the learned single Judge is set aside. The writ petition shall be placed before the learned single Judge for deciding the matter after hearing the third respondent/appellant. The fact that notice was issued by the first respondent Commissioner, HR CE to the appellant/third respondent before passing the order, dated 16.02.2010 does not weigh with us since the appellant had clearly sated that this appeal is pending consideration and, therefore, they did not make any submission before the Commissioner and in fact according to the appellant, this Temple is governed by the scheme. We are not to be unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 of the Tamil Nadu Hindu Religious Institutions (Officers and Servants) Service Rules, 1964. As the respondents do not have the power to fix the salary, the order impugned will have to be set aside as the one without jurisdiction and authority. The petitioner is a senior grade institution and therefore the ratio applied to the non-senior grade institution shall not be made applicable to it. The fact that the priests are receiving a portion of the contribution made by the general public has not been taken into account, and the respondent No. 1 has taken into account the gold donated over the years for the purpose of income of a particular year which is impermissible in law. The expenditure to be made by the petitioner has not been taken into account. It is not as if the petitioner is against fixing the new scale of pay to its employees. As stated in the reply supplemental affidavit, the petitioner is ready and willing to pay the scale of pay for the Archakars and employees by taking into consideration of the probable income they would earn by way of Thattu Kasu , Kattalai, Archanai and Abhishakam etc. For that purpose this Court has to appoint a retired Judge of the Honourable S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that Archakars are performing a divine duty and they cannot be allowed to live in poverty and penury. They are entitled to live with dignity and therefore, the Writ Petition will have to be dismissed. Submissions of the respondent No. 4: 10. Shri.T.L.Ram Mohan, learned senior counsel appearing for the fourth respondent submitted that the Government Orders are persuasive in nature. The basis of the payment has been fixed under the Government Orders and the arguments of the petitioner would not stand to scrutiny in pursuant to the notification issued by the Government by the introduction of Rule 5-A of the Tamil Nadu Hindu Religious Institutions (Officers and Servants) Service Rules, 1964 which stipulates a schedule of establishment for every religious institution. The said rule which has been introduced in exercise of the power under Section 116 (2) of the H.R. C.E. Act. Section 86 of the Act provides power to the respondents to approve the budget. Therefore, the combined reading of the provisions of the Act together with rules would clearly demonstrate the power available with the respondents by way of guidelines. The learned senior counsel also submitted that the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r/Devasthanam and for the Fasli year 1419, they have performed 5364 Abhishekams costing around ₹ 25/-per Abhishekam, amounting in all to ₹ 1,34,100/-. 3. The Hindu Religious and Charitable Endowments Department would submit that the Gurukals are also entitled to salary on a par with other staff and it is stated that each of the Gurukal is entitled to ₹ 6,621/-as salary per month and it is also stated by Mr.T.Chandrasekaran, learned Special Government Pleader that the same is being paid in respect of other temples. 4. a perusal of the entire records, it is clear that the payment of salary to the Gurukals depends upon the income which is received by the temple. As per G.O.Ms. No. 257, Tamil Development-Culture and Endowments Department, dated 10.6.1998, 30% of the income received by the temple can be spent towards salary. However, these are matters which are ultimately to be decided in the writ petition. However, I am of the view that a competent person should be appointed to go into all these aspects and file a detailed report so as to arrive at a just conclusion. 5. sidering the above said facts and circumstances of the case, as an interim measure, I dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is needless to state that all other objections are left open to be decided in the writ petition. Post the writ petition on 4.7.2011. 1. s writ petition is listed today under the caption 'for being mentioned' at the instance of the learned senior counsel for the petitioner to modify the order dated 26.04.2011 passed by this Court in the above writ petition thereby extend the benefits conferred under the said order to Gurukals to the other staff working in the temple. 2. ard the counsel on either side. The learned senior counsel appearing for the petitioner fairly submitted that, as submitted by the petitioners by way of suggestion, after the order dated 26.04.2011 passed by this Court, even in respect of other staff, enhanced amount will be paid as per the statement made earlier by the petitioner. 3. the light of the submission made by the learned senior counsel for the petitioners, it is made clear that the benefit conferred under the order dated 26.04.2011 shall also be extended to other staff only to the extent it is accepted by the petitioners in the proposal working in the temple and this order is passed as an interim measure and without prejudice to the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble for surcharge proceedings under the provisions of the Act. (4) Every post in a religious institution shall be sanctioned taking into account the income of the religious institution. The expenditure on salaries and establishment shall be met from the income of the religious institution. 14. A perusal of the above said provision would make it clear that it mandates upon every religious institution to have a schedule of establishment. While it is a duty of the petitioner to prepare such a schedule of establishment, the same has to be approved by the first respondent. The schedule also includes permanent and temporary posts along with the grounds of pay and other allowances admissible to such posts. It is important to note that Rule 5-A of the Tamil Nadu Hindu Religious Institutions (Officers and Servants) Service Rules, 1964 places fetters on the power of the petitioner to the effect that it is not open to it to alter the schedule without the prior permission of the learned Commissioner. Therefore, Rule 5-A of the Tamil Nadu Hindu Religious Institutions (Officers and Servants) Service Rules, 1964 clearly provides for such a power. When the petitioner cannot alter the schedul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utions may be disposed of; (xii-a)the manner in which, the persons (including the State Trading Corporation) to whom, the conditions and restrictions subject to which, movable properties of any religious institution including human hairs and other articles received as offerings in the religious institutions, shall be sold or otherwise disposed of; (xiv)the manner in which the accounts of religious institutions shall be audited and published, the time and place of audit and the form and contents of the auditor's report; (xv)the method of calculating the income of a religious institution for the purpose of levying contribution and the rate at which it shall be levied; (xxv)the grant of pensions or gratuities to officers and servants of the Board who retired before the 30th September 1951; (xxvi)the grant of gratuities to the heirs of deceased officers and servants of the Board including those who had retired before the 30th September 1951; Therefore, a perusal of the above said Section together with the amendment made by way of introduction of Rule 5-A of the Tamil Nadu Hindu Religious Institutions (Officers and Servants) Service Rules, 1964 clearly exemplifies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Act. (2) The trustee shall publish such proposals as the premises of the institution and in such other manner as may be required by the Assistant Commissioner or the Commissioner, as the case may be, together with a notice stating that, within one month from the date of such publication, any person having interest may submit objections or suggestions to the Assistant Commissioner or the Commissioner. (3) After the expiry of the said period, the Assistant Commissioner or the Commissioner shall, after considering any objections and suggestions received, pass such order as he may think fit on such proposals, having regard to the established usage of the institution and its financial position, and a copy of the order shall be communicated to the trustee. The order of the Assistant Commissioner or the Commissioner shall be published in the prescribed manner. (4) Against an order passed by the Assistant Commissioner under sub-section (3), the trustee or any person having interest may, within one month from the date of the receipt of the order by the trustee, appeal to the Joint or Deputy Commissioner and if the trustee or such person is aggrieved by the order of the Depu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e counter affidavit, if the case of the petitioner is accepted then more salary has to be paid. However, this Court is not willing to go into the said issue as it is for the second respondent to go into, when the petitioner submits its proposal. The said proposal will have to be made and decided in the light of the observation of this Court and in the light of the factual findings given by the learned Commissioner. Element of Fairness: 21. The final question to be considered in this Writ Petition is as to whether the action of the petitioner is just and fair. While exercising the power under Section 226 of the Constitution of India, this Court is concerned with the element of fairness. Admittedly, the records produced by the learned counsel for the third respondent would show that what has been given to the employees is nothing but a pittance. The petitioner itself in the supplemental affidavit filed as stated as follows: 5.His Holiness the Adheena Kartha is willing for this Honourable Court appointing a retired Judge of the Honourable Supreme Court or this Honourable Court to conduct enquiry, to ascertain the income and expenditure and to fix proper and reasonable scale o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the result, the Writ Petition is disposed of, with the following directions: (i) The petitioner is directed to submit its proposal to the respondent No. 2 by fixing the salary of the employees. While doing so, it is open to the petitioner to contend that it is a senior grade Temple, with relevant materials. The petitioner can also place the materials by relying upon the report of the learned Commissioner apart from giving its objections to it. (ii) The percentage ratio fixed for different grades of Temples in various Government Orders by the Government is hereby upheld in the light of the discussions made above. However, it is made clear that any salary to be fixed for the employees cannot go beyond the percentage ratio and should be in accordance with Rule 5-A of the Tamil Nadu Hindu Religious Institutions (Officers and Servants) Service Rules, 1964. (iii) In so far as the contentions raised by the petitioner before the learned Commissioner to the effect that the gold received is a capital receipt and therefore, the same cannot be included in the income, the same is rejected as this Court does not find any difference between the contribution made by the general public in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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