K. Gangadhar, vs State Of Andhra Pradesh
2022 Latest Caselaw 6628 AP

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    IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

            THE HON'BLE SRI JUSTICE NINALA JAYASURYA

                  WRIT PETITION No.10569 of 2021
Between:-

K.Gangadhar                                     ....         Petitioner
                                 And

State of Andhra Pradesh, represented by its
Principal Secretary, Endowments Department
and others                                      ....        Respondents


Counsel for the Petitioner        :       Mr.K.S.Murthy

Counsel for the respondents 1 & 2 :       Mrs.P.Rajani Reddy,
                                          Learned Government Pleader

Counsel for the 3rd respondent    :       Mr.K.Madhava Reddy

ORDER:

The issue involved in the present Writ Petition is about the

competency of the 2nd respondent-Commissioner in issuing proceedings

dated 08.01.2021 for absorbing the petitioner herein as Editor of

"Sri Kanaka Durga Prabha‟, a religious monthly magazine (hereinafter

referred to as magazine) published by the 3rd respondent-Sri Durga

Malleswara Swamy Varla Devasthanam, in a newly sanctioned post and

non-implementation of the same by the Executive Officer of the

3rd respondent-Devasthanam.

2. The facts of the petitioner‟s case as per the pleadings may briefly

be stated thus:

The petitioner is a Post Graduate in Telugu from Acharya Nagarjuna

University. He secured a Master Degree in Communication in Journalism

from Potti Sriramulu Telugu University and did M.A., (Sanskrit) from the

same University. He was awarded Doctorate (Ph.D.,) in Social Work by

Acharya Nagarjuna University. He obtained P.G.D.C.A., in Human

Resource Management from Andhra Pradesh Productivity Council. He had

also passed the required Account Test for Sub-ordinate Officers Part-I

(08), Account Test for Executive Officer (141), Endowment Department

Test (103, 126) conducted by Andhra Pradesh Public Service Commission.

3. The petitioner was initially appointed as regular incharge of

"Sri Kanaka Durga Prabha" in the year 2003, on consolidated pay. He

worked as Assistant Public Relations Officer from 2004 to 2007. Later he

worked as Sub-Editor of the said magazine from the year 2009 and in the

year 2014 he was asked to discharge the duties of Editor vide Proceedings

dated 14.02.2014 issued by the 3rd respondent.

4. The petitioner filed Writ Petition No.16269 of 2014 seeking a

direction to the authorities for sanction of the post of Editor and the same

was disposed of by an Order dated 01.08.2014. He also filed Writ Petition

No.20584 of 2017 seeking Time Scale from the date of his appointment as

Editor from the year 2014 and an interim direction was issued to consider

his representation. However, Time Scale was not paid on the premise that

there is no sanctioned post. The petitioner filed another Writ Petition

No.581 of 2019 seeking a direction to the 2nd respondent to sanction the

post of Editor and the same was also disposed of by an Order dated

25.01.2019. Thereafter, the petitioner filed Writ Petition No.9165 of 2019

challenging the proceedings dated 11.07.2019 issued by the 3 rd

respondent-Devasthanam when his services were sought to be dispensed

w.e.f. 17.07.2019 onwards. In the said Writ Petition, an interim direction

was issued to the 2nd respondent to take action on the representation of

the petitioner. Thereafter, the petitioner was taken back into service as

an Editor pursuant to the proceedings dated 18.10.2019 issued by the 3 rd

respondent-Devasthanam, on contract basis, subject to final orders in

W.P.No.9165 of 2019.

5. Subsequently, the 2nd respondent issued proceedings in Memo

dated 08.01.2021, inter alia, sanctioning one post of Editor in the cadre of

Assistant Executive Officer and prescribed the qualifications for the said

post as per G.O.Ms.No.1060 dated 24.10.1989. The 2nd respondent on the

same day, by a separate Memo issued proceedings absorbing the

petitioner in the newly sanctioned post of Editor and directed the

Executive Officer of the 3rd respondent to take further necessary action in

the matter. However no action was taken by the 3rd respondent-Executive

Officer. Hence, the present Writ Petition.

6. Heard Mr.K.S.Murthy, learned counsel for the petitioner,

Smt.P.Rajani Reddy, learned Government Pleader appearing for the

respondent Nos.1 and 2 and also heard Mr.K.Madhava Reddy, learned

counsel for the 3rd respondent.

Contentions:

7. The learned counsel for the petitioner, inter alia, contended that

the petitioner is qualified to the post of Editor, which is in the cadre of

Assistant Executive Officer and functioned as the Editor of magazine,

pursuant to the proceedings dated 14.02.2014 issued by the Executive

Officer of the 3rd respondent-Devasthanam, as the magazine cannot be

published without an Editor, as per the Press Council Regulations.

Referring to the proceedings dated 14.02.2014, the learned counsel would

submit that the petitioner was assured that on sanction of the post of

Editor in future, by the 2nd respondent-Commissioner, first preference

would be given to the petitioner, as the Devasthanam was availing his

services as Editor. He submits that the petitioner discharged the functions

of Editor of the magazine in question for about 7 years and prior to that

he had rich experience as a Sub-Editor for five years. He submits that the

2nd respondent-Commissioner on due consideration of the proposals dated

16.10.2013 of the Executive Officer of the 3rd respondent-Devasthanam,

sanctioned one post of Editor in the cadre of Assistant Executive Officer in

the Time Scale, vide Proceedings dated 08.01.2021. He further submits

that the 2nd respondent taking into consideration that the petitioner has

been working in the magazine since its inception in different cadres and

had completed 17 years in all and also taking into account the

proceedings of the Executive Officer of the 3rd respondent-Devasthanam

dated 14.02.2014 issued separate proceedings on 08.01.2021, absorbing

the services of the petitioner in the newly sanctioned post of Editor, as a

special case. He submits that the Executive Officer of the 3rd respondent-

Devasthanam instead of implementing the said proceedings dated

08.01.2021, addressed a communication dated 29.02.2021 to the

2nd respondent to review/re-examine the proceedings dated 08.01.2021

and in response there to, the Commissioner/2nd respondent, by

proceedings dated 09.03.2021 directed the Executive Officer of the

Devasthanam to implement the proceedings dated 08.01.2021, subject to

the result of W.P.No.9165 of 2019. He submits that the Executive Officer

of the Devasthanam, being sub-ordinate Officer is bound to implement the

same, but he had not taken action and it amounts to blatant

in-subordination.

8. The learned counsel would also contend that neither proceedings

dated 08.01.2021 sanctioning the post of Editor of the magazine nor the

proceedings dated 08.01.2021 directing the absorption of the petitioner as

Editor of the magazine have been challenged and in such circumstances,

the Executive Officer of the 3rd respondent is obligated to implement the

orders/proceedings of his superior i.e., Commissioner of Endowments.

The learned counsel would also submit that the Executive Officer of the

3rd respondent-Devasthanam, instead of implementing the same, however

indirectly questioning it in the petitioner‟s Writ Petition, which is not

tenable, more particularly in view of his earlier communication dated

14.02.2014 where, in categorical terms, specific assurance was given to

the petitioner that he would be given first preference to the post of Editor.

He would also submit that there is no dispute with regard to qualifications

or competency of the petitioner to hold the post of Editor and that by

virtue of Section 8 of the Andhra Pradesh Charitable & Hindu Religious

Institutions and Endowments Act, 1987 (for short „the Act‟), the

Commissioner is having the power of overall superintendence and in view

of the same as also in terms of Rule 35 of A.P. Charitable & Hindu

Religious Office Holders and Servants Service Rules (hereinafter referred

to as Rules, 2000) issued vide G.O.Ms.No.888 dated 08.12.2000, the

Commissioner/2nd respondent is empowered to issue proceedings of

absorption and the Executive Officer of the 3rd respondent is bound to

implement them. Making the said submissions, the learned counsel seeks

to allow the Writ Petition.

9. The learned Government Pleader appearing for the respondent

Nos.1 and 2 while reiterating the stand taken in the counter-affidavit filed

by the 2nd respondent supported the case of the petitioner and inter alia,

submitted that the 2nd respondent-Commissioner had issued proceedings

dated 08.01.2021 sanctioning the post of Editor in the cadre of Assistant

Executive Officer in exercise of his powers under the Act and the relevant

Rules by duly considering the proposals of the 3rd respondent for sanction

of cadre strength of Editor as also other posts for smooth running of the

magazine in question and issued separate proceedings dated 08.01.2021

for absorption of the petitioner in the said post. It is also submitted that

the petitioner is qualified to hold the post of Editor and by duly

considering the length of his services in the publication of the magazine,

the impugned proceedings were issued, as a special case, but the

3rd respondent had not acted upon the same, for the reasons not known.

10. Mr. K.Madhava Reddy, learned Standing Counsel for the

3rd respondent, however had taken rather a firm stand that the

2nd respondent-Commissioner has no power or authority to issue an Order

of absorption like in the present case, since the power of appointment of

employees in the 3rd respondent is vested with the Executive Officer as

per Section 35 of the Act. He submits that the cadre strength has to be

fixed, which has not been done and Rule 46 of Rules, 2000 deals with the

procedure for direct recruitment. He further submits that the petitioner

has been discharging his functions on contract basis and as the services

are not against a sanctioned post, the proceedings issued for absorption

of his services as an Editor are not legally tenable. He also submits that

no selection procedure was followed and the proceedings of absorption

are contrary to law and amounts to disregarding the judgment of the

Hon‟ble Supreme Court in State of Karnataka v. Umadevi1. He would

further submit that even assuming, the post of Editor was sanctioned by

the 2nd respondent on 08.01.2021 as such prior to that it cannot be

treated as sanctioned and therefore any proceedings of

appointment/absorption would not be sustainable in law. The learned

counsel while contending that Section 8 of the Act would not empower the

2nd respondent-Commissioner to issue any such direction for absorption,

further submits that Rule 35 is applicable to the employees whose services

are covered by Service Rules, but not to all and as the petitioner was not

appointed against a sanctioned post, the said Rules are not applicable to

him. The learned Standing Counsel further submits that the contentions

sought to be advanced with reference to Section 8 of the Act and

Rule 35 of the Rules are also not tenable as the powers of the

Commissioner under Section 8 are subject to the other provisions of the

Act i.e., Section 35. The learned counsel in support of his various

contentions with regard to power and authority of the Commissioner,

binding nature of legal precedents on the Executive and Statutory

authorities etc., placed reliance on the following decisions.

1 (2006) 4 SCC Page 1





       1)    N.Ramana       Kumari    v.     Deputy   Commissioner      of

Endowments, Guntur and Others , 2) Shri Veerabhadra Swamy Temple v. Commissioner, Endowment Depart3, 3) V.V.R.K.Srinivas v. State of Andhra Pradesh 4 , 4) State of Madhya Pradesh v. Sanjay Nagayach5, 5) Union of India v. Concord Fortune Minerals India Private Limited 6 and 6) Executive Officer, Venkateswara Swamy Devasthanam, Dwaraka Tirumala v. Metlapalli Seshalakshmi Srinivas7

11. The learned counsel would also urge that no Writ can be issued to

the authorities to act contrary to law and the Executive Officer of the

3rd respondent though sub-ordinate to the 2nd respondent, cannot be

compelled to act or take any action in contravention of law and in the

above circumstances, the proceedings dated 08.01.2021 were not

implemented. Resting his submissions, the learned counsel seeks

dismissal of the Writ Petition.

12. In reply to the submissions made on behalf of the 3rd respondent,

the learned counsel for the petitioner, inter alia, contended that in the

counter affidavit filed on behalf of the 3rd respondent vide U.S.R.No.43492

of 2021 dated 26.08.2021, there is no plea/averment about violation of

any Rules of recruitment or the case of Umadevi referred supra, on which

2 1998(2) ALT 439 3 2004(3) ALT 44 4 2017(3) ALD 689(DB) 5 (2013) 7 SCC 25 6 (2018) 12 SCCs 279 7 1999(2) AndhWR 129

much reliance was placed. The learned counsel would also submit that the

earlier counter was withdrawn by filing I.A.No.2 of 2021, but arguments

were advanced with reference to the pleas taken in the said counter and

the same is not permissible. While submitting that the posts in Assistant

Executive Officer cadre would be filled up by promotion from lower cadre

and there is no direct recruitment in terms of Annexure-III of

G.O.Ms.No.888 dated 08.12.2000, the learned counsel also submits that

there is no violation of Rule 46 of G.O.Ms.No.888, as contended by the

learned counsel for the 3rd respondent. He submits that even as per the

said G.O., the Sub-Editor can be promoted to the post of Editor and the

said procedure was followed by the 2nd respondent in the present case

and therefore, there is no violation of procedure or violation of the law as

settled in Umadevi‟s case. While distinguishing the decisions on which

reliance was placed on behalf of the 3rd respondent, learned counsel

contends that the principle laid down in the Umadevi‟s case, is not a bar

for absorption and in the case on hand, there is no regularization of

services. He further submits that even otherwise, the Commissioner/

2nd respondent had ample powers under the Rules and the Commissioner

is empowered to issue proceedings in special cases like the present and

the same are legally valid. Accordingly, the learned counsel submits that

the Writ Petition may be allowed by granting relief sought for.

13. This Court has given a thoughtful consideration to the contentions

advanced by the respective counsel on both sides and gone through the

material on record. On a careful examination of the matter, the following

points emerge for consideration by this Court.

1. Whether the proceedings dated 08.01.2021 creating the post of Editor is within the powers of the 2nd respondent- Commissioner?

2. Whether Rules, 2000 are applicable to the petitioner?

3. Whether the proceedings dated 08.01.2021 absorbing the petitioner is within the power of the 2nd respondent- Commissioner and the same are liable to be implemented by the 3rd respondent?

4. Whether the proceedings dated 08.01.2021 are contrary to the ratio of the Hon‟ble Supreme Court in Umadevi‟s case?

14. Before dealing with the contentions of the learned counsel for

both sides, the relevant provisions of Law may be extracted for ready

reference:

Section 8. Powers and functions of Commissioner and Additional

Commissioner:

1) Subject to the other provisions of this Act, the administration of all charitable and Hindu religious institutions and endowments shall be under the general superintendence and control of the Commissioner and such superintendence and control shall include the power to pass any order which may be deemed necessary to ensure that such

institutions endowments are properly administered and their income is duly appropriated for the purposes for which they were found or exist.

2) Without prejudice to the generality of the foregoing provisions, the Commissioner shall exercise the powers conferred on him and perform the functions entrusted to him by or under this Act in respect of such institutions or endowments in the State as are included in the lists published under clause (a), clause (d) and clause (e) of section 6.

Section 35 of the Act deals with appointment of office holders and servants etc.,

[(1) Every vacancy in the approved cadre strength whether permanent or temporary, amongst the office holders or servants of a charitable or religious institution or endowment shall be filled by the Trustee with the prior permission of the competent authority.

Provided that in the case of a charitable or religious institution or endowment whose annual income exceeds rupees ten lakhs the Executive Officer shall appoint the office holders and servants thereof with the prior permission of the competent authority.

Provided further that in the case of appointment of religious office holders such appointment shall be made keeping in view the Agamas of the respective institutions and preference shall be given to those who are well versed with the Agama, custom and usage of the respective institution.] (2) ..............................

(3)...............................

[(4) Fixation of cadre strength, the qualifications, method of recruitment, pay and allowances, discipline and conduct and other conditions of service for the office holders and servants of the religious charitable institutions and endowments shall be such as may be prescribed.]

15. As per Rule 2 (d) of Rules, 2000 office holder or servant includes a

person who holds an office to which a Inam is granted, confirmed or

recognized by the Government or who is remunerated by the institution

concerned and who is either a whole time or part time functionary.

16. Rule 35 of the Rules provides for relaxation of the said Rules by the

Commissioner in the following terms:

"The Commissioner may relax any rule of these rules in favour of any person or any class of persons for being appointed, otherwise than by direct recruitment, to any office or post or of any person who is serving or has served in any of the institutions in such manner as may appear to him just and equitable.

Provided that where any such Rule is applicable to the case of any person or class or persons, it shall not be relaxed in any manner less favour to the person or class of persons than that provided by that Rule."

17. As per Rule 36, special provisions for certain temples in addition to

the Rules, except Rules 5 and 16, shall be applicable to the office holders

and servants of the eight institutions mentioned therein, including

Sri Durga Malleswara Swamy varu/3rd respondent herein.

18. Further, Rule 37 which provides that the class and categories of the

employees of the said eight institutions shall be as sanctioned by the

Commissioner from time to time. Rule 38 (a) contemplates that the cadre

strength in respect of each class and category of posts in each of the eight

institutions shall be fixed by the Commissioner.

19. Rule 38(b) postulates that the Board of Trustees shall not make any

variations in the cadre strength, except with the previous sanction of the

Commissioner. Rule 39 deals with qualifications and envisages that no

person shall be eligible for appointment to the post specified in column

(2) of Annexure-III appointed to the Rules by the method specified in

column (3) thereof, unless he possess the qualifications specified in the

corresponding entry in column(4) thereof.

20. Rule 46 deals with the procedure for direct recruitment, as per

which, any vacancy to be filled up by direct recruitment shall be notified

by the Executive Officer to the Employment Exchange having jurisdiction

over the institution. Selection of candidates out of the list of candidates

sponsored by the Employment Exchange shall be made by the Committee

to be constituted by the Commissioner from time to time and the said

Committee shall conduct a written examination followed by oral tests.

Percentage of marks allotted for oral test shall not exceed 12% of the

total marks.

21. Point No.1:

Sanctioning of posts for the class and categories of the employees

of the 3rd respondent-Devasthanam is provided under Rule 37 of the Rules

as noted above and the Commissioner is the sanctioning authority. As per

Rule 38(a) of the Rules, Commissioner is empowered to fix the cadre

strength for the institution in question and in view of Rule 38(b) of the

Rules, even the Board of Trustees has no power to make any variations to

the same, except with the previous sanction of the Commissioner. Thus,

it is clear that the Commissioner is vested with the power to sanction

posts for a class and category of employees and fix the cadre strength.

Therefore, sanctioning of the post of Editor in the present case through

the proceedings dated 08.01.2021 is well in the competence and powers

of the Commissioner and the point is accordingly answered.

22. Point No.2:

The term Office Holders and Servants of A.P. Charitable & Hindu

Religious Institutions and Endowments is not defined under the Act, but

the A.P. Charitable & Hindu Religious Institutions and Endowment Office

Holders and Servants Service Rules, 2000 defines "Office Holder" or

"Servant".

As per Rule 2(d) of the Rules, Office Holder or Servant includes a

person who is remunerated by the Institution concerned and who is either

a whole time or part time functionary. In the present case, it is not in

dispute that the petitioner is receiving remuneration for the post of Editor

from the institution i.e., the 3rd respondent-Devasthanam. The magazine

being published by the 3rd respondent is a monthly magazine and it can be

construed that the petitioner is a whole time functionary. However, the

learned counsel for the 3rd respondent contends that the above said Rules

are not applicable to the petitioner on the premise that he is not

appointed against a sanctioned post. In this regard he relies on

V.V.R.K. Srinivas‟s case referred to supra, wherein a Hon‟ble Division

Bench of the erstwhile High Court of Judicature at Hyderabad for the State

of Telangana and the State of Andhra Pradesh was dealing with a case of

Non-Muster Roll (NMR) employee/worker of Sri Durga Malleswara Swamy

Varla Devasthanam, Indrakeeladri, Vijayawada (3rd respondent). The

Hon‟ble Division Bench with reference to Section 35 of the A.P. Charitable

and Hindu Religious Institutions and Endowments Act, 1987 and Rules,

2000 at Paras 13 and 14, inter alia, held as follows:-

"13. In this regard, it is relevant to note that appointment of office holders and servants is governed by Section 35 of the Act of 1987, which states that every vacancy in the approved cadre strength whether permanent or temporary, amongst the office holders or servants of a charitable or a religious institution or endowment shall be filled by the Trustee with the prior permission of the competent authority. The question that would arise is whether the petitioners in these cases can be said to fall within the definition of 'office holders or servants' of the respondent temple in the light of Section 35 of the Act of 1987 which categorically states that the vacancy, permanent or temporary, should be in the 'approved cadre strength' of the office holders or servants, to which an appointment can be made by the Trustee. Unless a person is appointed to the cadre, be it in a temporary or a permanent vacancy, he cannot claim to be an office holder or servant.

14. Learned Counsel would also point out that under Rule 2(d) of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Office Holders and Servants Service Rules, 2000 (for brevity, 'the Rules of 2000'), an 'office holder' or a 'servant' is defined to include a person who is either a whole time or a part-time functionary. However, as there is no definition of 'office holder' or

'servant' of a charitable or a religious institution or endowment in the Act of 1987 but Section 35 thereof, which deals with appointment of office holders and servants of such institutions, puts it beyond doubt that such posts of office holders and servants must be borne on the approved cadre and appointment must be made thereto, be it in a permanent or temporary vacancy, this Court cannot accept that a non-muster roll employee can straight away be treated as a part-time employee falling within the definition under the Rules of 2000. In any event, the statute would prevail over the rule."

In the light of the above decision, the contention advanced by the

learned counsel for the 3rd respondent Devasthanam that Rules of 2000

are not applicable to the petitioner, merits acceptance. Accordingly, the

point is answered against the petitioner.

23. Point No.3:

Coming to the contentions raised with regard to proceedings dated

08.01.2021 directing the 3rd respondent to absorb the petitioner, it may be

apt to refer to the decision relied on by the learned counsel for the

respondents. Though the learned counsel for the petitioner objected to

some of the pleas raised by the learned counsel on the premise that the

earlier counter was withdrawn, this Court cannot over look the legal

position which has a bearing on the controversy.

In N.Ramana Kumari and others‟ case, a learned Judge of the

erstwhile High Court of Judicature, Andhra Pradesh at Hyderabad, in the

light of Section 35 of the Act, 1987, inter alia, held that the appointments

in Section 6(b) temples shall only be made either by the Trust Board of

the temple duly constituted or by the Executive Officer as the case may be

and the Deputy Commissioner, Endowments shall have no authority to

make any appointments, but he has the authority only to approve the

appointments made by any of the above said two authorities and declared

that the appointment of the petitioner therein as made by the then Deputy

Commissioner, Endowments, Guntur is without authority.

In Shri Veerabhadra Swamy Temple‟s case referred to supra

another learned Judge with reference to the powers of Commissioner,

Endowments, inter alia, observed as follows:-

"The power under Section 8 of the Act is conditioned by a specific statutory instruct that sets out the limits of the superintendence of power conferred on the Commissioner. On a true and fair construction of the provisions of Section of the Act, the interference is irresistible that the proper administration of an institution or endowment contextually means appropriation of its income or utilization of its properties for the purposes for which that particular religious institution or endowment was founded or exists and for no other..."

24. A Hon‟ble Division Bench of the erstwhile High Court in Executive

Officer, Venkateswara Swamy Devasthanam, Dwaraka Tirumala,

West Godavari District‟s case, had an occasion to deal with an order of

appointment made by the Commissioner on compassionate grounds.

A contention was raised before the Division Bench that the Commissioner

has no authority to make such an appointment and the same was in any

event contrary to the provisions of Section 35 of the Act, 1987. The

Division Bench after referring to Section 35 of the Act, inter alia, observed

that admittedly the concerned Devasthanam‟s income was exceeding ten

lakhs and as such all appointments ought to be made by the Executive

Officer and none else. The Hon‟ble Division Bench also observed that it is

a statutory requirement and as such assumption of jurisdiction so far as

the Commissioner is concerned, was wholly unwarranted and not in

accordance with the Law. The Hon‟ble Court held that the assumption of

jurisdiction is void ab initio and as such the action in regard to the

appointment, apart from the factual score is ipso facto invalid and bad in

Law. However, in the facts and circumstances of the said case, the

Division Bench after taking into consideration that the Order of the

Commissioner was given effect to by the Executive Officer of

Devasthanam, was not inclined to interfere with the Order of the learned

Single Judge and disposed off the appeal with certain observations.

25. Thus, the legal position with regard to appointments in a

Devasthanam like the 3rd respondent is well settled and the contention

advanced by the learned Standing Counsel for the 3rd respondent that the

Commissioner had no power to issue Proceedings dated 08.01.2021

absorbing the petitioner in the 3rd respondent-Devasthanam deserves to

be upheld.

26. Further, though Rules of 2000, more particularly, Rule 35

empowers the Commissioner to relax any of the Rules in favour of any

person for appointment other than by direct recruitment, in the teeth of

Section 35 of the Act, which specifically provides that the Executive Officer

shall appoint the office holders and servants in the case of a charitable or

religious institution or endowment, whose annual income exceeds ten

lakhs, this Court has no option, except to hold that the Commissioner has

no power or authority to issue the Proceedings dated 08.01.2021

absorbing the petitioner.

27. Further, it is settled Law that the statute overrides the rules and it

may also be noted that the powers of the Commissioner under

Section 8 of the Act are subject to the other provisions of the Act, as

rightly contended by the learned counsel for the 3rd respondent

Devasthanam.

In the light of the above said conclusions, no direction or reliefs as

sought for by the petitioner can be granted.

28. In Union of India and others vs. Concord Fortune Minerals

India Private Limited‟s case, on which reliance is placed by the learned

counsel for the 3rd respondent Devasthanam, the legal position is

reiterated by the Hon‟ble Supreme Court that ordinarily writ jurisdiction

cannot be invoked for directing the authorities to act contrary to Law.

In the present case, as the proceedings of absorption by the

Commissioner is contrary to the provisions of the Act, the action of the

Executive Officer of the 3rd respondent in not giving effect to the same

cannot be treated as disobeying the orders of the superior and would not

amount to in-subordination.

In such view of the matter, the point is answered accordingly

against the petitioner.

29. Point No.4:

Though the learned counsel for the 3rd respondent contended that

the Order of absorption is contrary to the decision of the Hon‟ble Supreme

Court in Uma Devi‟s case referred to supra, in view of the findings

recorded with reference to Points 1 to 3 supra, this Court deems it not

necessary to further delve in the matter and leave it open to the parties to

raise their respective contentions, in any occasion arises.

For the aforegoing reasons, this Writ Petition is dismissed. There

shall be no order as to costs.

As a sequel, miscellaneous applications, if any pending shall

stand closed.

___________________________ JUSTICE NINALA JAYASURYA

Date: 09.09.2022

IS

THE HON'BLE SRI JUSTICE NINALA JAYASURYA

WRIT PETITION No.10569 of 2021

Date: 09.09.2022

IS