IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
***
W.P.No.6821 of 2021
Between:
# Syama Prasad Mukherjee Gollapudi
S/o. Late Radha Krishna Murthy,
Occ: Advocate, R/o. LIG I H 228,
APHB Colony, Tadepalligudem-534101
West Godavari District, A.P.
... Petitioner
AND
$ 1. The State of Andhra Pradesh, rep. by its Secretary, General
Administration Department, Secretariat, Velagapudi, Amaravathi,
Guntur District.
2. The Commissioner, Endowments Department, A.P., Gollapudi,
Vijayawada, Krishna District.
... Respondents
Date of Judgment pronounced on : 29-07-2021
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
1. Whether Reporters of Local newspapers : Yes/No
May be allowed to see the judgments?
2. Whether the copies of judgment may be marked : Yes/No
to Law Reporters/Journals:
3. Whether the Lordship wishes to see the fair copy : Yes/No
Of the Judgment?
2 RRR,J.
W.P.No.6281 of 2021
*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
* HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
+ W.P.No.6281 of 2021
%Date: 29.07.2021
Between:
# Syama Prasad Mukherjee Gollapudi
S/o. Late Radha Krishna Murthy,
Occ: Advocate, R/o. LIG I H 228,
APHB Colony, Tadepalligudem-534101
West Godavari District, A.P.
... Petitioner
AND
$ 1. The State of Andhra Pradesh, rep. by its Secretary, General
Administration Department, Secretariat, Velagapudi, Amaravathi,
Guntur District.
2. The Commissioner, Endowments Department, A.P., Gollapudi,
Vijayawada, Krishna District.
... Respondents
! Counsel for petitioner : Sri V. Venugopala Rao
^Counsel for Respondents : G.P. for Endowments
<GIST :
>HEAD NOTE:
? Cases referred:
3 RRR,J.
W.P.No.6281 of 2021
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
W.P.No.6281 of 2021
ORDER:
The Government of Andhra Pradesh had been framing policy and guidelines for recruitment of persons on outsourcing/contract basis from time to time. By G.O.Ms.No.126 dated 18.10.2019, the Government declared its policy of incorporating a dedicated corporation, which would directly outsource manpower to various departments/organizations in the State as per their requirement. Thereafter, G.O.Ms.No.136 dated 04.11.2019 was issued recording the fact that a company named Andhra Pradesh Corporation for Outsourced Services (APCOS) had been incorporated under Section 8 of the Companies Act, 2013 with the objects and purposes set out in the said G.O. The Government, in pursuance of the policy announced, earlier, had issued a Circular Memo No.GAD01- SUOMISC/31/2019-SU-I, dated 20.11.2019 laying down the following guidelines to the said outsourcing corporation. Relevant para of the Circular is as follows:
I) Removal of private outsourcing agencies/middle men II) Corruption free outsourcing placement III) Implementation of 50% reservation for BCs, SCs, STs and Minorities, and 50% reservation for women IV) Timely and full payment of remuneration, without any undue cuts V) Proper credit of EPF and ESI
2. Thereafter, the Government of A.P. had again issued circular Memo.No.GAD01-SUOMISC/31/2019-SU-I, dated 21.07.2020. The guidelines set out in this Circular are in continuation of the guidelines set 4 RRR,J.
W.P.No.6281 of 2021 out in the earlier Circular dated 20.11.2019. This Circular was to apply to the following organizations.
"All the Secretariat Departments, State Head of Departments, PSUs/ Government aided Institutions / Organizations / Universities / Societies / Autonomous bodies / Semi-autonomous bodies, District level Offices, etc., are requested to migrate their outsourced employees to the APCOS, by 25-07-2020, duly following guidelines issued in the reference (3) cited above."
3. After issuance of these Government Orders and Circulars, the 2nd respondent issued the impugned Memo No.K3/3676187/2020, dated 29.07.2020 directing all the drawing and disbursement officers and temple executive authorities to engage manpower and work on outsourcing only through the A.P. Corporation for Outsourced Services with a stipulation that this should be done strictly in accordance with the procedure prescribed in the Circular dated 21.07.2020 without any deviation and with immediate effect.
4. The petitioner, who claims to be a person, who is a strong devotee of Tirumala and Dwaraka Tirumala temples, being aggrieved by the said Circulars, has filed the present writ petition challenging the Circular Memo dated 21.07.2020 of the 2nd respondent.
5. Sri V. Venugopala Rao, learned counsel appearing for the petitioner assails the said Circulars on the following grounds.
a) The Government Orders and Circulars read together, stipulate that the rule of reservation has to be applied in the course of appointment of outsourced employees. This would mean that minorities belonging to the religions other than Hinduism would have to be mandatorily appointed as employees of the Hindu temples.
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W.P.No.6281 of 2021
b) The provisions of Section 29(3) require the executive officers of the Hindu temples to be Hindus only. Similarly, a reading of Sections 13, 23 and 35 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short 'the Act') would also show that any person associating with the administration of any Hindu temple, at any level, would require to be a Hindu as a non- Hindu employee of a temple would not be in consonance with these provisions, which require all functions and affairs of the temples to be performed strictly in accordance with the Agamas and the practices and conventions which have been laid down over a long period of time.
c) The Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Office Holders and Servants Service Rules, 2000 issued by way of G.O.Ms.No.888, Revenue (Endowments.I) dated 08.12.2000 stipulates, in Rule-3, that every office holder and servant of a religious institution or endowment shall be a person professing the Hindu religion and shall cease to hold the office when the person ceases to profess Hindu religion.
6. Article 16(5) of the Constitution of India also provides that while reservation can be made for certain sections of society, in relation to public employment, the said provisions shall not 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, should be a person professing a particular religion or belonging to a particular denomination.
7. A combined reading of these provisions would show that application of reservation whereby the persons belonging to other religions would have to be appointed as the office holders or servants of 6 RRR,J.
W.P.No.6281 of 2021 the Hindu temples, is not permissible and even the framers of the Constitution had considered this aspect and provided that the said institutions would be exempted from the general rule of reservation.
8. The provisions of the Circulars and the Government Orders are to the effect that the outsourcing employees, who are being appointed to the Government organizations including the societies and autonomous bodies would have to utilize the services of the outsourcing company and also implement the rule of reservation in its entirety. This would not be applicable to temples inasmuch as the said temples are not Government organizations and at best the role of Government is that of a trustee of the temples at the very best, and that of an appointing agency of such trustees at the very least. In such circumstances, these Circulars and Government Orders cannot apply to the outsourcing of employees by temples and other religious institutions.
9. The 2nd respondent has filed a counter affidavit and the learned Government pleader while reiterating the said averments in the counter affidavit, submits that the writ petition is being filed on the misplaced apprehension of the petitioner that the members of other religions would be taken into the service of the Hindu religious institutions. She submits that while the rule of reservation would be applied, the same would be restricted only to the members of the Hindu religion and the persons professing the other religion would not be included in the rule of reservation. She further submits that the apprehension raised by the petitioners in the writ petition that existing outsourced employees would have to be retrenched or removed from service is also misplaced as the exercise under the Circulars and the 7 RRR,J.
W.P.No.6281 of 2021 Government Orders is to migrate all the existing outsourced employees from private outsourcing agencies to the Government agency. Consideration of the Court:
10. A reading of the Circulars and the Rules reveal that the policy of the Government is, firstly, to bring all the outsourcing employees engaged by the Government and organizations of the Government under the control of one Corporation and consequently to ensure that the rule of reservation in its entirety is applied wherever such outsourced employees are being engaged by the Government or Governmental organizations. The impugned Circular issued by the 2nd respondent is merely reiterating and reaffirming the said policy and intention of the Government.
11. In view of the provisions of Sections 13, 23, 29 (3) and 35 of the Act and Rule 3 of the A.P. Charitable and Hindu Religious Institutions and Endowments Office Holders and Servants Service Rules, 2000, the employment of any person not professing the Hindu religion is prohibited in any temple or religious institution. Under the rule of reservation, certain sections of Hindus, upon conversion to another religion fall within the category B-C and the category BC-E is reserved for the members of another non-Hindu religion. The application of the rule of reservation in its entirety would result in appointment of persons who profess religions other than Hinduism to be brought in as employees/servants of temples in Hindu Religious Institutions.
12. Article 16 of the Constitution of India is an enabling provision for providing reservations for classes of persons, who have been deprived of adequate reservation in the services of the State. However, while enabling such progressive reservation, Article 16 (5) also caters to 8 RRR,J.
W.P.No.6281 of 2021 the sentiments and beliefs relating to the persons following particular religions and provides that nothing in Article 16 would affect the operation of any law, which protects such beliefs and faith of persons following any particular religion. This provision is not necessarily restricted to the persons following the Hindu religion but is also applicable to any other religion.
13. In the circumstances, in view of the conflict between the provisions of the Endowments Act and the Rules as mentioned above and the requirements of the rule of reservation, it would have to be held that the rule of reservation in its entirety cannot be applied to religious institutions or temples.
14. Coming to the second argument of Sri V. Venugopal Rao, learned counsel for the petitioner, it must be remembered that the temples and Hindu religious institutions are not Government organizations. They are institutions set up on account of the belief and faith of the persons professing the Hindu religion. They have nothing to do with the secular functions of the State and are purely religious organizations. The role of the State in such organizations, as provided under the Endowments Act, 1987, is restricted to ensure that the secular affairs of the temples and religious institutions are maintained properly. This role of the State, which extends to the appointment of trustees and supervision of the secular affairs of the institutions under the Endowments Act, will not extend to a stage where the temples and Hindu religious institutions become part of the State. Temples and other Hindu religious establishments are neither Government nor organizations of the Government for the purpose of the applicability of the aforesaid Government Orders or Circulars.
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W.P.No.6281 of 2021
15. As the Circulars and Government Orders relate to
outsourcing employees in the Government organizations, and the temples and the Hindu religious institutions are not Government organizations, they cannot be brought under the purview of the Andhra Pradesh Corporation for Outsourced Services.
16. For all the aforesaid reasons, it must be held that the Circulars and Government Orders issued by the Government, as mentioned above, must be interpreted to mean that the recruitment of outsourced employees for Hindu Temples and Hindu religious institutions cannot be done through APCOS and the rule of reservation in its entirety cannot be applied to recruitment of such outsourced employees. However, the said rule of reservation shall continue to apply even where such recruitment was done through other agencies to the extent of accommodating depressed classes of the society where members of such classes of society profess the Hindu faith.
17. Accordingly the writ petition is allowed and the impugned Circular Memo No.K3/3676187/2020, dated 29.07.2020 is set aside. There shall be no order as to costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.
________________________
R. RAGHUNANDAN RAO, J
29th July, 2021
Js
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W.P.No.6281 of 2021
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
W.P.Nos.6281 of 2021
29th July, 2021
Js