The prayer in this writ petition reads as follows:
?Petition is filed under
Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari calling for the records leading to the impugned order of the 1st respondent herein in Na.Ka.6736 of 2009/M1 dated 03/03/2010 and quash the same?.
2. The question that is being raised in this writ petition is whether the second respondent incurred disqualification because of his overseas travel. This writ petition has got chequered history. The temple namely, Arulmigu Sarangapani Thirukoil, Kumbakonam is governed by a scheme decree and the same has been modified in I.A.No.53 of 1955 in O.S.No.27 of 1920 on 30.06.1956 by the Sub Court, Kumbakonam. The second respondent, who was performing service of Archaga/Battachariar in the said temple, undertook overseas in the year 1991 and there was an objection to the same claiming that priest of a Vaishnava shrine incurs disqualification if he undertakes overseas travel. There were several rounds of litigation with no final conclusion in right. The position of law on this question has been espoused by the Hon'ble Supreme Curt in the recent judgement in WRIT PETITION (CIVIL) No. 354 of 2006 (in ADI SAIVA SIVACHARIYARGAL Vs. THE GOVERNMENT OF TAMILNADU & ANR).
3. The order challenged in this writ petition is passed by the Assistant Commissioner H.R.&C.E Department, who is also the fit person of the said temple. Pursuant to the direction of this court in W.P.No.890 of 2005 an enquiry was undertaken by the Assistant Commissioner. The Assistant Commissioner, after ascertaining the views of various religious scholars, has finally concluded that since the second respondent has performed atonement (gpuharpj;jk;) meant for persons who travel overseas would be entitled to perform poojas. The petitioner would contend that procedure adopted by the Assistant Commissioner in obtaining opinion from various people and arriving at a final conclusion based on their opinion is not correct.
4. The question relating to disqualification incurred by archakas of Vaishnava shrines has been a matter of controversy. In the case C.A.Jagannathan Vs.T.E.Srinivasan and others (reported in2001(3) LW page
459), the said question was raised and ultimately the Hon'ble Justice MRS. PRABHA SRIDEVAN held that a suit under Section 70 of the Tamilnadu Hindu Religious and Charitable Endowments Act is maintainable against the order passed by the Commissioner in a revision under Section 21 of the said Act. Having held that a suit would lie the learned Judge observed that all the questions raised before her would be decided in the suit. The said Judgment was challenged in appeal in L.P.A.No.228 of 2001 in C.A.Jagannathan Vs. T.E.Srinivasan and three others (2002(4)LW 259) and the Division Bench of this court concluded that the order of the Commissioner made under Section 21 of the Act in a Revision case cannot be challenged by way of a statutory suit under Section 70 of the Act. The Division Bench also found that the question whether Archaka or Battachariyar incurs disqualification by virtue of his overseas travel will necessarily fall under the scope of as to what the established usage of the religious institution is in regard to any other matter, as prescribed under Section 63(e) of the Act. Chapter 5 of the Act provides for certain enquires and under Section 63 of the Act, it is the joint Commissioner or Deputy commissioner who are empowered to decide certain disputes. Section 63 of the Act takes in its ambit an enquiry on various aspects namely whether the institution is a religious institution or whether a Trustee holds or held office as a hereditary Trustee or any property or money is a religious endowment ...etc etc.
5. Sub Section (e) of Section 63 reads as follows:
(e)Whether any person is entitled, by custom or otherwise, to any honour, emolument or perquisite in any religious institution; and what the established usage of a religious institution is in regard to any other matter; (emphasis supplied) Upon coming to the said conclusion the Division Bench has dismissed the suit leaving it open to the parties to approach the concerned authority under Section 63 of HR & CE Act. It is not known as to whether any proceeding was taken under Section 63 of the Act in the said case.
6. However, when the Government of Tamilnadu issued a Government Order enabling any person irrespective of Caste to be appointed as Archaka, the Association of Archakas of Arulmighu Meenakshiamman Temple, Madurai, challenged the said Government Order before the Hon'ble Supreme Court of India under
Article 32 of the Constitution of India. After referring to the dictum of the Constitution Bench in Seshammal's case, the Hon'ble Supreme Court of India held that whether a person entitled to be appointed as Archaka or Battachariya would depend upon the particular usage of the temple and the Agama. Therefore, the Hon'ble Supreme Court held that Agamas which govern the temple should be adhered to in appointment of Archaka of the temple. While concluding the Hon'ble Supreme Court, in paragraph No.43 of the judgment observed as follows:
43. What then is the eventual result? The answer defies a straight forward resolution and it is the considered view of the court that the validity or otherwise of the impugned G.O.would depend on the facts of each case of appointment. What is found and held to be prescribed by one particular or a set of Agamas for a solitary or a group of temples, as may be, would be determinative of the issue. In this regard it will be necessary to re-emphasise what has been already stated with regard to the purport and effect of
Article 16(5) of the Constitution, namely, that the exclusion of some and inclusion of a particular segment or denomination for appointment as Archakas would not violate
Article 14 so long such inclusion/exclusion is not based on the criteria of caste, birth or any other constitutionally unacceptable parameter. So long as the prescription(s) under a particular Agama or Agamas is not contrary to any constitutional mandate as discussed above, the impugned G.O.dated 23.05.2006 by its blanket fiat to the effect that, Any person who is a Hindu and possessing the requisite qualification and training can be appointed as a Archaka in Hindu temples has the potential of falling foul of the dictum laid down in Seshammal (supra). A determination of the contours of a claimed custom or usage would be imperative and it is in that light that the validity of the impugned G.O.dated 23.05.2006 will have to be decided in each case of appointment of Archakas whenever and wherever the issue is raised. The necessity of seeking specific judicial verdicts in the future is inevitable and unavoidable; the contours of the present case and the issues arising being what has been discussed.
7. In view of the above, I am of the considered opinion that the question whether the second respondent has incurred a disqualification by virtue of his overseas travel has to be gone into by the properly constituted authority namely, the Deputy Commissioner or Joint Commissioner under Section 63 of the Act. The Assistant Commissioner or the fit person of the temple cannot decide that question in an enquiry that stems from a suspension order passed. However, now that the Department has taken a view that the second respondent has not incurred any disqualification because of his overseas travel, the second respondent cannot be prevented from discharging his duty. It is for the petitioner to approach the competent authority under Section 63 of the Act and get the issue resolved.
8. It is made clear that none of the findings or observations made by any of the authorities in any of the prior proceedings including this Court, would have a bearing on the enquiry under Section 63 of the Act. The Deputy Commissioner or Joint Commissioner, as the case may be, should independently decide the question on the evidence produced before him or her.
9. With the above observation, this writ petition is disposed of. No costs. Consequently, connected M.P(MD) No. 1 of 2010 is closed.
To, The Assistant Commissioner/Fit Person, Hindu Religious Charitable and Endowments Department Kumbakonam..