COMMON JUDGMENT M.SATHYANARAYANAN, J The appellants are respondents 1 and 6 to 20 in W.P.No.3693 of 1997. Respondents 6 to 16 had preferred writ appeal 1497 of 2005, respondents 7 to 20, preferred writ appeal No.1561 of 2005 and the first respondent in W.P.No.3693 of 1997, challenging the vires of the common order passed in W.P.No.3693 of 1997, wherein, appointments were quashed, had preferred writ appeal No.968 of 2006. All the writ appeals are preferred against above said common order.
Since the all the appeals are preferred against common orders passed in W.P.No.3693 of 1997, the said appeals are disposed of by this common judgment.
2. The facts which are necessary and as culled out from the affidavit filed in support of the writ petition and the counter affidavits filed by the first and second respondents, are as follows:-
For the sake of convenience, the array of parties as referred to in the writ petition is being adopted here also.
The first writ petitioner is Tamil Nadu Thirukkoil Thozhilalargal Union and the second writ petitioner is employed under Arulmighu Dhandapani Thirukoil, Thiruparankundram, Madurai, and also the member of first petitioner Union. It is averred in the writ petition that there was no uniform procedure with regard to the recruitment or promotion in respect of the vacancies in the temples administrated by the first respondent and they were governed by the various circulars from time to time. The guidelines prescribed under the circulars are that concerned Executive Officers will call for applications from all eligible employees of all temples by displaying the notification in the Notice Board of the respective temple for a period of one month. The proof of such Notification made in the Notice Board in all temples in every region had to be obtained by the jurisdictional Deputy Commissioner or Joint Commissioner of the Hindu Religious and Charitable Endowments Department. Copies of the said Notification calling for application should be published in the office of the concerned local authority, Government Offices as well as in the District Employment Office. The applications received in response to the Notification, have to be registered and applicants have to be called oral interview before the concerned Executive Officer of the temple or the Trustee of the temple Board and marks to be awarded on the oral interview. Thereafter, list of eligible/selected candidates has to be prepared and to be forwarded to the first respondent with specific recommendation of the interviewing authority. Only after the first respondent approved the appointments, the selected candidates can be appointed. However, according to the writ petitioners in the resent past, all the appointments more particularly appointments made to the vacancies in the post of the second respondent and third respondent temples viz., Arulmighu Meenakshi Sundareswarar Temple, Madurai and Arulmighu Subramaniya Swami Temple, Thiruparankundram, Madurai District have been made in gross violation of the above said procedure as contemplated in the circulars issued by the first respondent from time to time.
3. It is further averred in the affidavit filed in support of the writ petition that the first respondent has classified the temples broadly under seven categories based on the income and accordingly, officers in different cadres are appointed as Executive Officers. In respect of temples which have income of Rs. One Crore and above, the Executive officer in the cadre of Joint Commissioner will be appointed. In respect of temples which are having income between Rs.40 lakhs and Rs.One Crore, the officer in the cadre of Deputy Commissioner will be appointed as Executive Officer and in respect of temples with the income of Rs.10 lakhs to 40 lakhs, the officer in the cadre of Assistant Commissioner will be appointed as Executive Officer. In so far as the temples which are having income between Rs.5 lakhs to 10 lakhs the Selection Grade Executive Officer will be appointed as the Executive Officer and the temples which are having income between Rs.2 lakhs, 5 lakhs and 1 lakh to 2 lakhs and less than Rs.1 lakh, the Executive Officers in the cadre of Second, third and 4th Grade will be appointed as Executive Officers. The salaries of the employees are paid out of the income derived by the temple and there is no uniformity in the scale of pay of the employees pertaining to Senior Grade Temple and Lower Grade Temple. Therefore, number of representations were submitted by the first writ petitioner Union to set right the said anomaly and therefore number of circulars have been issued by the first respondent department to weep out the said anomalies.
4. It is the specific case of the first petitioner Union that the second and third respondent temples in violation of the norms stipulated in the circular issued by the department, have called for applications without resorting to any recruitment procedure and appointed the respondents 4 to 20, who are the appellants in these writ appeals and therefore, they prayed for issuance of writ of certiorarified mandamus to quash the said selection and directed the first respondent to appoint eligible candidates who are employees of the temples and members of the Union strictly in conformity with the circular dated 4.8.1985 issued by the first respondent.
5. The first respondent has filed its counter stating that the circular dated 4.8.1995 was issued only to remove the constant of the employees of temples to apply for the post and their application will have to be considered on merit only and the selection/appointment is not automatic. In so far as the contention raised by the writ petitioners that the earlier circulars have not been followed, the first respondent has stated that the earlier circulars have been cancelled vide circular dated 25.6.1996 issued by him. Further, according to the first respondent, that he has empowered to grant exemption of age to any person as provided under Rule 17 of the Rules framed under Section 116(2) read with Rule (xxiii) of the HR & CE Act and the writ petitioners have no locus standi to question the recruitment made from the open market. The first respondent further averred that the selection and appointments of private respondents in the writ petition strictly in accordance with the procedure and on merits.
6. The Executive Officer of the second respondent temple has filed his counter affidavit contending among other things that the appointment notification has been published in the temple Notice Board and therefore, the members of the petitioner Union are very well aware of the same. It is further stated by the second respondent that all the appointments were made only in accordance with the procedure and there is no violation or deviation of the provision of the HR & CE Act and the Rules framed thereunder.
7. One of the private respondents viz., the 7th respondent has also filed his counter stating that the private respondents have applied to the post for which selection was notified by the second respondent temple and since they complied with the prescribed qualification, they were selected on merits and working from 1996 onwards and therefore, no interference is warranted in their selection.
8. The learned Judge on a consideration of the above materials, found that the circular dated 4.8.1995 have not been followed by the second and third respondents and that the appointments of private respondents are wholly arbitrary and irregular and without calling for the norms either from Employment Exchange or by publishing any advertisement in the press. The learned Judge also gone through the files before arriving at the said finding. Therefore, for the said reasons, the writ petition was allowed and the appointments of private respondents were set aside and the official respondents were directed to take steps to fill up vacancies only in accordance with the Rules and Regulations and also by adhering to the circular dated 4.8.1995.
9. After the disposal of the writ petition, the writ petition was posted on 20.8.2005 under the caption being mentioned, wherein the learned Judge has passed the following order.
" It is represented that the fourth respondent has not joined duty while the fifth respondent was selected much earlier to the impugned selection. Learned counsel for the petitioner has no objection to record in so far as the statement with reference to the fourth respondent. As regards the fifth respondent, the statement of the learned counsel for the respondent is placed on record and the order in the writ petition shall not operate against them."
10. Heard the submissions of the learned counsel appearing for the appellants in each of the writ appeal and also the submissions made by the learned counsel appearing for the respondents.
11. A perusal of the circular dated 4.8.1995 issued by the first respondent would reveal that when vacancies arise in the joint Commissioner Grade Temples and as and when applications are called for to fill up the vacancies in the said temples, the notification calling for applications have to be marked to the Tamil Nadu Temple Employees Union in order to enable the employees of other temples to apply for the same. It is further stated in the said circular that the said circular is to be followed in letter and spirit and all the subordinate officers requested to intimate the said circular immediately.
12. The learned Special Government Pleader HR & CE, invited the attention of this Court the circular dated 25.6.1996, wherein the earlier circulars dated 7.2.1989, 22.5.1992, 16.6.1993 and 14.3.1993 have been superseded. As per circular dated 25.6.1996 the following procedure is to be followed before filling up of vacancies in the temples.
"(1) Sanctioned strength of the employees list, in Reference No., date and the name of the Officer who sanctioned it. (copy of the Order to be enclosed).
(2) Copy of the resolution of the trustee/Fit person.
(3) In the above temples aided amount, fixed income, besides the percentage of administrative expenditure due to new appointment.
(4) Proof for advertisement given with regard to calling for applications for appointment.
(5) The scale of pay of the Post in which appointment has to be made in the sanctioned strength of the employees list.
After obtaining the previous permission from the Commissioner new appointment has to be made or to fill up the vacancy in the temple (if previous permission is not obtained from the Commissioner) and the executive officer himself appointed any person and paid salary to the concerned person without obtaining previous permission from the Commissioner, then the concerned executive officer is solely responsible for that and a departmental action will be initiated against him and steps will be taken against for the loss for him.
It is advised apart from the sanctioned strength of the employees for the temples, if new posts has to be created, it is a must to get the previous permission from the Commissioner.
It is advised that with regard to the appointment of daily wages employees the procedure has to be followed which is already there.
all the subordinate officers are requested to give necessary advise to the executive officers and trustees under their control and to give necessary advise with regard to making appointment and paying salary without getting permission from the Commissioner."
13. This Court has perused the appointment orders dated 21.8.1996, 27.8.1996, 5.9.1996 and 14.10.1996 issued by the respondents 2 and 3 viz., Arulmighu Meenakshi Sundareswara Swami Temple, Madurai and Arulmighu Subramaniya Swami Temple, Thiruparankundram and also the counter affidavit filed by the first and second respondents. A careful perusal of the same would reveal that the circular dated 25.6.1996 have not been followed in letter and spirit. The grievance of the writ petitioners that the circular dated 4.8.1995 have also not been followed which was seriously disputed by the official respondents requires factual adjudication, which cannot be done in these writ appeals.
14. Be that as it may, Service Rules in respect of officers and Servants of the Tamil Nadu Hindu Religious Institutions, came to be framed in the year 1964 in exercise of powers conferred under Clause XXIII of sub-section (2) of Section 116 of the Hindu Religious and Charitable endowments (hereinafter called the Tamil Nadu Hindu Religious Institutions) (Officers and Servants) Service Rules 1964). As per section 2(b) of the said Rules, the appointing authority means the authority who is vested with power to appoint an officer or servant and as per sub-section (c) of Section 2, an officer or servant includes the person who holds the office to which the inam granted confirmed or refused by the Government, he is attached or remunerated in kind or in cash. Rule 5 provides for age for appointment of non-hereditary officers and Rule 6 provides for disqualification pertaining to appointment. Rule 7 provides for probation for every person appointed in non-hereditary office and Rule 8 provides for suspension or termination of probation of employees. A perusal of the said rule would reveal that the manner of appointment in respect of vacancies pertaining to the above said category of temples have not been provided. A perusal of the appointment orders issued by the respondents 2 and 3 would exhibit that those appointments were made to the post of Junior Assistant, Typists, Draftsmen, Clerk and Office Assistant and time scale of pay have also been provided. The manner of selection process under which the private respondents came to be appointed have not been disclosed in the counter affidavits filed by the first respondent as well by the second respondent. It is also not made clear whether any reservation has been followed pertaining to the said appointments. Therefore, the learned Judge on a perusal of files produced by the first respondent and after careful consideration of the averments made in the writ petition and the counter affidavits, rightly found that the appointments made were arbitrary and irregular and without calling for the names either from Employment Exchange or by publishing an advertisement in the press.
15. However, this Court is alive to the fact that the private respondents came to be appointed in the year 1996 and the respective counsel appearing for the appellants in these writ appeals would submit that they continue to work without any break in service. The Honble Supreme Court of India in the decision reported in 1993(I) Services Law Judgments page 429 Mrs.Rekha Chaturvedi vs. University of Rajasthan and others, has considered the scope of selection which was held to be illegal, held that the selectees have been working in the respective posts for about 8 years and their selection need not be set aside at this time of juncture. Even though the private respondents were selected without adherence to any reasonable procedure by respondents 2 and 3 and that their selection have also been confirmed by the first respondent, we are of the considered opinion that at this distant point of time, their selection need not be set aside. In order to avoid such an arbitrary and irregular procedure in selection of candidates for appointment to various temples, we direct the first respondent to frame comprehensive service rules for selection, appointment and filling up of posts, seniority, promotion etc. in various grades of temples in consultation with the Commercial Taxes and Religious Endowments Department and the Personnel and Administration Department of the Government of Tamil Nadu, keeping in mind the circular dated 4.8.1995 issued by them and the said exercise may be done within a period of six months from the date of receipt of copy of this order and till then, no appointments are to be made except in case of emergency. In the event of such temporary appointments, it should be clearly indicated that such appointments are purely temporary subject to the framing of service rules and regulations and such appointees can't claim any right. The writ appeals are disposed of on the above terms. But in the circumstances, there will be no order as to costs.
(D.M.J) (M.S.N.J) 22.01.2009.
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