Madras High Court
D.Senthilkumar vs State Of Tamil Nadu on 20 February, 2021
Writ Petition No.4206 of 2021 and WMP Nos.4801 to 4803 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 24.02.2021
Delivered on : 05.03.2021
CORAM
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
Writ Petition No.4206 of 2021
and
WMP Nos.4801 to 4803 of 2021
D.Senthilkumar ... Petitioner
..vs..
1. State of Tamil Nadu,
Rep. by the Secretary to Government,
Tamil Development, Religious Endowments
and Information Department, Secretariat,
Fort St. George, Chennai – 600 009.
2. The Commissioner,
Hindu Religious and Charitable
Endowments Department,
Uthamar Gandhi Salai,
Nungambakkam, Chennai – 600 034.
3. The Joint Commissioner,
Hindu Religious and Charitable
Endowments Department,
Uthamar Gandhi Salai,
Nungambakkam, Chennai – 600 034.
1/14
https://www.mhc.tn.gov.in/judis/
Writ Petition No.4206 of 2021 and WMP Nos.4801 to 4803 of 2021
4. The Thakkar/Deputy Commissioner/
Executive Officer,
Arulmigu Arunachaleswarar Tirukoil,
Tiruvannamalai – 606 601. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying for the issuance of a Writ of Certiorarified Mandamus calling for
the records of the fourth respondent comprised in his Employment
Notification in Na.Ka.No.1312/2020/A2 dated 20.02.2021 issued by the
fourth respondent as published in Dinamalar dated 21.01.2021 in respect
of appointment of archakas and other posts in Arulmigu Sri
Arunachaleswarar Tirukoil, Tiruvannamalai and quash the same as
arbitrary, unconstitutional and violative of Articles 25 and 26 of the
Constitution and consequently forbear the respondents, their officers,
employees, servants, agents, committees or any other person(s) acting or
claiming under the respondents from in any manner appointing any
person(s) as archaka in Arulmigu Sri Arunachaleswarar Tirukoil,
Tiruvannamalai, contrary to the established religious custom and usage.
For Petitioner : Mr.Prahalad Bhat
for Mr.R.Parthasarathy
For R1 to R3 : Mr.M.Karthikeyan, SGP(HR& CE)
2/14
https://www.mhc.tn.gov.in/judis/
Writ Petition No.4206 of 2021 and WMP Nos.4801 to 4803 of 2021
ORDER
Calling in question the employment notification in
Na.Ka.No.1312/2020/A2 dated 20.02.2021 issued by the fourth
respondent, which was published in Dinamalar on 21.01.2021, in respect
of appointment of Archakas and other posts in Arulmighu
Arunachaleswarar Thirukoil, Tiruvannamalai, the present writ petition
came to be filed by the petitioner. A mandamus has also been sought to
the respondents forbearing them from in any manner appointing any
person(s) as Archakas in the said temple, contrary to the religious custom
of the said temple.
2.The facts leading to the filing of this writ petition, in brief,
may be set out as under:
2.1 The petitioner claims that he is a Sivachariar and belongs to
the family of Archakas. Arulmighu Arunachaleswarar Thirukoil,
Tiruvannamalai is an ancient Saivite temple and the performance of the
religious rituals of the same is governed by Kamika and Karana Agamas
https://www.mhc.tn.gov.in/judis/
Writ Petition No.4206 of 2021 and WMP Nos.4801 to 4803 of 2021
as well the Baddhathis laid down by Agorasivachariar as early as in the
12th Century A.D., as per which, the Archakas or Gurukkals are required
to acquire several qualifications, one among which is that they should
belong to Adi Saivar community and they should have received
initiations at 4 levels of Dheekshas viz., Samaya Dheeksha, Vishesha
Dheeksha, Nirvana Dheeksha and Acharya Abhisheka Dheeksha.
2.2 According to the petitioner, as per the custom of the subject
temple, which has been in vogue for a period dating back prior to 1900,
only the persons hailing from two groups viz., Periya Gurukkal
Vagaiyara and Chinna Gurukkal Vagaiyara, have the sole right to
perform the duties of Archakas, Mirasdars, Sthanigam, Parisaragam, etc.
in respect of the subject temple.
2.3 It is the further case of the petitioner that in 1920, there
arose a dispute between the two groups of Archakas of the subject
temple, which led to filing of a civil suit before the District Munsif,
Tiruvannamalai, which was partly allowed by judgment and decree dated
22.12.1922. Challenging the same, AS.No.42 of 1924 was filed before
https://www.mhc.tn.gov.in/judis/
Writ Petition No.4206 of 2021 and WMP Nos.4801 to 4803 of 2021
the Sub Court, Vellore, wherein, the right of the plaintiff Archaka was
affirmed by the Appellate Court.
2.4 While so, the fourth respondent issued the impugned
advertisement inviting applications for various posts including the posts
of Paricharagam, Archakar, Sthanigam and Meikaval in the subject
temple, prescribing certain qualifications, which are in disregard to the
custom and usage of the subject temple, as guaranteed under Articles 25
and 26 of the Constitution of India. Hence, this writ petition.
3.The learned counsel for the petitioner vehemently contended that
the impugned advertisement inviting applications from the persons, who
are otherwise not qualified to enter the sanctum sanctorum of the subject
temple and perform the rituals as Archakas, would defile the image and
cause damage to the religious rights of the entire Saivite community.
According to the learned counsel, the appointment of the posts in
question has to be as per the Agamas governing the subject temple and
any deviation from the said custom and usage would be an infringement
https://www.mhc.tn.gov.in/judis/
Writ Petition No.4206 of 2021 and WMP Nos.4801 to 4803 of 2021
of the freedom of religion as envisaged under Articles 25 and 26 of the
Constitution of India. It is also contended that contrary to the dictum laid
down by the Supreme Court in His Holiness Srimad Perarulala
Ethiraja Ramanuja Jeeyar Swami v. State of Tamil Nadu [AIR 1972
SC 1586] as well Section 28 of the Tamil Nadu Hindu Religious and
Charitable Endowments Act, 1959, the fourth respondent issued the
impugned advertisement, prescribing the qualifications that makes
serious inroads into the freedom and belief of Saivites and hence, the
same will have to be quashed.
4.On the other hand, the learned Special Government Pleader
(HR&CE) appearing for the respondent authorities submitted that the
petitioner has no locus standi to file this writ petition, as he did not make
any application pursuant to the advertisement impugned herein; the last
date for submission of the applications was already over; and nearly 322
applications were received. Adding further, he submitted that the
petitioner did not produce any document to show his competency nor
https://www.mhc.tn.gov.in/judis/
Writ Petition No.4206 of 2021 and WMP Nos.4801 to 4803 of 2021
furnished any Agama details with respect to the subject temple and
hence, he cannot plead to monopolise the affairs of the subject temple as
the same is against the dictum laid down by the Supreme Court in Adhi
Saiva Sivachariyargal Nala Sangam v. State of Tamil Nadu [2016 (2)
SCC 725]. It is also submitted that in the Kamika Agama, which
provides the procedure to be followed in performing the pooja in a
Saivite temple, there is no discussion related to the line of hereditary as
claimed by the petitioner. He further submitted that even the issue raised
in the civil suit referred to by the petitioner was only between the two
group of Archakas with respect to private affairs and the same would not
bind on the respondent authorities. He ultimately submitted that the Fit
person appointed by the HR&CE Department is actively functioning in
the subject temple and the advertisement impugned herein issued is a
continuance one and hence, the writ petition is liable to be dismissed.
5.This Court considered the rival submissions and perused the
materials brought on record.
https://www.mhc.tn.gov.in/judis/
Writ Petition No.4206 of 2021 and WMP Nos.4801 to 4803 of 2021
6.In this writ petition, the petitioner challenges the advertisement
issued by the fourth respondent inviting applications to the posts of
Archaka, Sthanikam, Paricharagam, Parivaragam and Meikaval in respect
of the subject temple, which is a preliminary stage of the selection
process. It is well settled that the Government cannot interfere in matters
of religious affairs of a religious denomination and deny the right to
manage the religious affairs and administer the properties of the religious
institutions, subject to public order, morality and health. However, the
relief sought herein cannot be entertained, as the petitioner, who not even
made an application to the posts in question and the last date for applying
the same was already over, is admittedly, a third party to the impugned
advertisement. Further, no concrete materials other than the copy of the
advertisement published in the Tamily daily, were filed by the petitioner
alongwith this writ petition, so as to substantitate his claim. Hence, he
has no locus standi to file this writ petition.
https://www.mhc.tn.gov.in/judis/
Writ Petition No.4206 of 2021 and WMP Nos.4801 to 4803 of 2021
7.In this context, it is relevant to extract the principles on which a
writ of mandamus can be issued, as stated in the Law of Extraordinary
Legal Remedies by F.G. Ferris and F.G. Ferris, Jr., which have been
noted in the decision of the Supreme Court in Oriental Bank of
Commerce v. Sunder Lal Jain [(2008) 2 SCC 280], which run thus:
“Note 187-- Mandamus, at common law, is a highly prerogative writ,
usually issuing out of the highest court of general jurisdiction, in the
name of the sovereignty, directed to any natural person, corporation
or inferior court within the jurisdiction, requiring them to do some
particular thing therein specified, and which appertains to their office
or duty. Generally speaking, it may be said that mandamus is a
summary writ, issuing from the proper court, commanding the official
or board to which it is addressed to perform some specific legal duly
to which the party applying for the writ is entitled of legal right to
have performed.
Note 192 --Mandamus is, subject to the exercise of a sound judicial
discretion, the appropriate remedy to enforce a plain, positive, specific
and ministerial duty presently existing and imposed by law upon
officers and others who refuse or neglect to perform such duty, when
there is no other adequate and specific legal remedy and without
which there would be a failure of justice. The chief function of the writ
is to compel the performance of public duties prescribed by statute,
and to keep subordinate and inferior bodies and Tribunals exercising
public functions within their jurisdictions. It is not necessary, however,
https://www.mhc.tn.gov.in/judis/
Writ Petition No.4206 of 2021 and WMP Nos.4801 to 4803 of 2021
that the duty be imposed by statute; mandamus lies as well for the
enforcement of a common law duty.
Note 196-- Mandamus is not a writ of right. Its issuance
unquestionably lies in the sound judicial discretion of the Court,
subject always to the well-settled principles which have been
established by the Courts. An action in mandamus is not governed by
the principles of ordinary litigation where the matters alleged on one
side and not denied on the other are taken as true, and Judgment
pronounced thereon as of course. While mandamus is classed as a
legal remedy, its issuance is largely controlled by equitable principles.
Before granting the writ the Court may, and should, look to the larger
public interest which may be concerned - an interest which private
litigants are apt to overlook when striving for private ends. The Court
should act in view of all the existing facts, and with due regard to the
consequences which will result. It is in every case a discretion
dependent upon all the surrounding facts and circumstances.
Note 206-- .......... The correct rule is that mandamus will not lie
where the duty is clearly discretionary and the party upon whom the
duty rests has exercised his discretion reasonably and within his
jurisdiction, that is, upon facts sufficient to support his action.”
Applying the aforesaid principles, the grounds raised by the petitioner
cannot be considered and therefore, the same deserve to be rejected.
https://www.mhc.tn.gov.in/judis/
Writ Petition No.4206 of 2021 and WMP Nos.4801 to 4803 of 2021
8.At this juncture, the learned counsel for the petitioner submitted
that though the petitioner stated in the affidavit filed in support of this
writ petition that the qualification for a saivite to enter the sanctum
sanctorum to touch the idol and to perform poojas and other rituals are
strictly regulated by Kamika and Karana Agamas; and in terms of the
said Agamas, only those saivites belonging to Kasyapa and Athreya
Gothras are qualified to become Archakas in the subject temple, he is not
pressing the averments made by the petitioner with respect to ancestral /
hereditary right for performing pooja in the subject temple and
expressing no objection for proceeding with the selection process, in
accordance with the Agamic knowledge and customary practice. He has
also made an endorsement in the bundle to that effect.
9.In reply, the learned Special Government Pleader appearing for
the respondents fairly submitted that the appointments would be made
from the eligible candidates conversant with the Agamic knowledge and
customary practice connected to Arulmighu Arunachaleswarar Temple.
https://www.mhc.tn.gov.in/judis/
Writ Petition No.4206 of 2021 and WMP Nos.4801 to 4803 of 2021
10.The submissions so made by the learned counsel on either side
are recorded.
11.It may not be out of place to point out the observation of the
Supreme Court in Seshammal v. State of Tamil Nadu [(1972) 2 SCC
11] to the effect that “the trustee is not bound to make the appointment
on the sole ground that the candidate is the next-in-line of succession to
the last holder of Office”.
12.The said view was further clarified by the Supreme Court in the
subsequent decision in Adhi Saiva Sivachariyargal Nala Sangam v.
State of Tamil Nadu [2016 (2) SCC 725] to the effect that “any person,
who is a Hindu and possessing the requisite qualification and training,
can be opted as an Archaka in Hindu Temples”. Thus, the legal position
is that without following the hereditary order, the appointment of
Archakas should be in accordance with the religious usages and practices
of the temples.
https://www.mhc.tn.gov.in/judis/
Writ Petition No.4206 of 2021 and WMP Nos.4801 to 4803 of 2021
13.In such perspective of the matter, this writ petition stands
disposed of, directing the respondents to proceed with the selection
process for the posts in question, in respect of Arulmighu
Arunachaleswarar Temple, strictly in accordance with the customary
practice of the temple as well the dictum laid down by the Supreme Court
in the decisions cited supra. No costs. Consequently, connected
Miscellaneous Petitions are closed.
05.03.2021
Index: Yes
Internet: Yes
rk
To
1. The Secretary to Government,
Tamil Development, Religious Endowments
and Information Department, Secretariat,
Fort St. George, Chennai – 600 009.
2. The Commissioner,
Hindu Religious and Charitable Endowments Department,
Uthamar Gandhi Salai,
Nungambakkam, Chennai – 600 034.
3. The Joint Commissioner,
Hindu Religious and Charitable Endowments Department,
Uthamar Gandhi Salai,
Nungambakkam, Chennai – 600 034.
https://www.mhc.tn.gov.in/judis/
Writ Petition No.4206 of 2021 and WMP Nos.4801 to 4803 of 2021
R.MAHADEVAN, J.
rk
4. The Thakkar/Deputy Commissioner/
Executive Officer, Arulmigu Arunachaleswarar Tirukoil,
Tiruvannamalai – 606 601.
Pre-delivery order in
Writ Petition No.4206 of 2021
and WMP Nos.4801 to 4803 of 2021
05.03.2021
https://www.mhc.tn.gov.in/judis/
