B. RAJENDRAN Vs. STATE

JUDGEMENT

(1.) THE petitions in W.P.(MD) Nos.15080 and 19247 of 2013 have been filed seeking for issuance of Writ of Quo -Warranto and W.P.(MD)No.3105 of 2014 has been filed seeking issuance of a Writ of Certiorari to call for the records relating to the impugned G.O.Ms.No.133, Tourism, Culture and Religious Endowments Department, dated 31.05.2013 by which Mr. P. Dhanapal, the second respondent was reemployed as Commissioner by the Principal Secretary to Government, Tourism, Culture and Religious Endowments Department, is sought to be quashed. By consent, all the Writ Petitions are taken up together for final disposal.

(2.) INSOFAR as two quo -warranto petitions viz., W.P.(MD) No.15080 of 2013 and 19247 of 2013 are concerned, W.P.(MD) No.15080 of 2013 is filed by a retired officer of the Hindu Religious and Charitable Endowment Department and W.P.(MD) No.19247 of 2013 is filed by a person interested in the worship of various temples. The main contention of the petitioner in both these writ petitions is that under Section 9 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1951 (hereinafter referred to as 'the Act ') alone the Commissioner can be appointed. Therefore, the method of reemployment after retirement is not permitted and hence, the appointment of Mr.P.Dhanapal is not valid. In this connection, the petitioners would contend that Section 6(6) of the said Act defines a Commissioner which specifically says who is to be appointed under Section 9 of the Act. Therefore, there is a violation in respect of the appointment of Mr.P.Dhanapal and the appointment other than under Section 9 is invalid. According to the petitioners, under Section 9(2)(a)(ii) of the Act, there are only three methods of appointment viz., (i) by transfer from among the members of the [Tamil Nadu]. State Higher Judicial Service or of the [Tamil Nadu]. State Judicial Service or of any other service; or (ii) by promotion from Additional Commissioner; or (iii) by direct recruitment. When this has not been done, the Commissioner cannot be a person as appointed under the Act. They would also contend that when the entire Act, as per the preamble, is a consolidated in nature and it is exhaustive one, the defense taken by the authorities concerned that they had power under Rule 45 of the Tamil Nadu State and Subordinate Services Rules, cannot be applicable. Therefore, the appointment of Mr.P.Dhanapal is illegal. They would also rely upon a Division Bench decision of this Hon 'ble Court in the case of State Government of Tamil Nadu and another v. K.Vijayakumar and another reported in 2006 (3) L.W. 133 for the proposition that when there is a specific power in the Act, recourse to another rule is not permissible. They would also contend that even if it is a re -employment, the appointing authority should give reason and that reason should be only on the basis of where there is dearth of qualified candidates and where a person is of outstanding ability, cases may be considered on merits for extension or re -employment. It is to be specifically noted that in this case, such a thing has not been done. Therefore, the order is illegal. They would lastly contend that even assuming for a moment but not admitted, a Government servant as contemplated under Section 12 of the Act that the appointment for such period or any earlier period it is taking away the right. Therefore, also they cannot appoint. This was the main contention raised by Mr.G.R.Swaminathan, learned counsel for the petitioner.

(3.) MR .Balasubramania Iyer, learned counsel appearing for the petitioner in W.P.(MD)No.19247 of 2013, had gone one step further to state that the Hindu Religious and Charitable Endowment Department staff are not Government servants. Even as per the Act, the employees are only paid initially from the Consolidated Fund and thereafter, it is reimbursed by the department from out of the funds or hundial collections raised from various temples. Therefore, they cannot be construed as Government servants. The Writ Petition is filed by one of the former employee who has retired long back seeking for issuance of Writ of Certiorari to cancel the very order of extension. Again mainly on the ground that the appointment is against the provisions of Sections 9 and 12 when there is a Government servant the restrictions is an embargo. He would mainly contend that no locus standi will arise even though the petitioner is a former employee. In fact, he had also filed a Public Interest Litigation and permitted to withdraw. Thereafter, he has filed the present Writ Petition.