Madras High Court
The State Of Tamilnadu vs M.Pugalendran ... 2Nd on 16 December, 2022
W.A(MD)No.25 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.12.2022
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
AND
THE HON'BLE MR JUSTICE SUNDER MOHAN
W.A(MD)No.25 of 2020
and
C.M.P(MD)No.307 of 2020
1.The State of Tamilnadu,
Rep. by Secretary to Government,
Tourism,
Culture and Religious Endowments Departments,
Secretariat,
Chennai-600 009.
2.The Commissioner,
HR & CE Department,
119, Uthamar Gandhi Salai,
Chennai-600 034. ... Appellants/Respondents
.Vs.
M.Pugalendran ... 2nd Respondent/1st Respondent
PRAYER: Writ Appeal filed under Clause 15 of Letters Patent Act, to set aside
the judgment dated 20.11.2019 in W.P(MD)No.2580 of 2017 and to allow the writ
appeal.
1/10
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W.A(MD)No.25 of 2020
For Appellants : Mr.T.Vilavankothai
Additional Government Pleader
For Respondent : Mr.C.Arul Vadivel alias Sekar
JUDGMENT
DR.G.JAYACHANDRAN,J.
AND
SUNDER MOHAN,J.
The Writ Appeal is preferred by the State being aggrieved by the order of
the learned Single Judge, who has allowed the writ petition filed by the
respondent.
2. The brief facts of the case are that:-
(i) The respondent herein while serving as a Joint Commissioner in Hindu
Religious and Charitable Endowments Department, Trichirappalli alleged to have
appointed temporary staffs on daily wages for the non sanctioned post. Charges
were framed under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and
Appeal) Rules and enquiry was conducted. The substance of the charges is that
the respondent while working as Joint Commissioner of HR & CE, Trichirappalli
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W.A(MD)No.25 of 2020
had made irregular appointments in the temples under his control, which is
contrary to Section 55 of the Hindu Religious and Charitable Endowments Act,
1959 (hereinafter referred to as 'HR & CE Act').
(ii) Without being vest with the power to create a new post in the
Department, the delinquent has created the new post and also appointed 13
persons and thereby abused his position. Further, having created new post
without power had appointed staffs and not informed to the Commissioner,
thereby, committed the dereliction of duty and responsibility which is
unbecoming to be a member of the service. Opportunity was given to the
delinquent and he replied that he has not violated any rule or caused any loss to
the institution. He permitted to appoint the persons on daily wages in respective
temples based on the resolution passed by the fit person of those temples subject
to ratification by the Commissioner. Therefore, he has not unilaterally usurp any
power not vested with him as alleged in the charges.
(iii) Further, alleging that malafide in the action for initiating the
proceedings being infuriated by his act of approaching the High Court for
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W.A(MD)No.25 of 2020
obtaining the Stay on earlier Disciplinary Proceedings initiated under Rule 17(b)
of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. He has
submitted that the charges are unsustainable and action has been initiated with
malafide intention on the eve of retirement. However, the first respondent after
considering the enquiry officer's report and the material placed in defence, found
the delinquent guilty and ordered for removal from service. The said order, dated
02.02.2017 was challenged by the respondent/delinquent in W.P.(MD)No.2580 of
2017.
3. The learned Single Judge after considering the Service Rules governing
the delinquent, extracting Section 55 of the HR & CE Act, which enables the fit
person, who is competent to be appointed as employee in the service either
permanent or temporary, held that the Commissioner cannot interfere in the
process of appointment of office bearers or servants of religious institute and the
Commissioner cannot insist on prior permission before appointment.
4. Being aggrieved, the State has preferred the appeal on the ground that
the learned Single Judge has not properly appreciated the law on facts. While
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W.A(MD)No.25 of 2020
Section 55 of the Tamil Nadu HR & CE Act permits fit person to pass resolution
regarding the appointment of staffs, such appointment requires permission from
the Commissioner of HR & CE. Though the fit person of the respective temples
passed the resolution before permitting them to proceed with the appointment, the
delinquent/writ petitioner ought to have obtained prior permission for filling up
those posts. Having failed to comply with the requirements under the statute as
well as G.O.Ms.No.255, Tamil Development and Religious Endowment and
Information (RE 4-2) Department, dated 28.06.2010. In which, Rule 5(A)
specifically states that no new posts, permanent or temporary, shall be created or
filled up in any Religious Institutions without sanction of the Commissioner. The
said rule has been grossly violated by the delinquent. The learned Single Judge,
ought to have upheld the order of dismissal from service instead of ignoring the
antecedents of the delinquent and his gross violation of the rule, has allowed the
writ petition.
5. The learned Additional Government Pleader appearing for the appellants
would further submit that several actions were taken against the respondent.
Some misconduct of appointing the persons were brought to the notice of the
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Department and action was initiated. However, due to the interim order, no
further action was taken. Meanwhile, being embolden, he has again continued
the act of violation and had expressed his insubordination and dereliction of duty.
6. The learned counsel appearing for the respondent would submit that
there is no deviation or violation of Rule under the statue. The respondent being
the Joint Commissioner, Trichirappalli, in-charge of several temples coming
under the purview of the HR & CE, has taken cognizance whenever request was
made by the fit person of the respective temples for appointment of temporary
staffs.
7. It is submitted by the learned counsel for the respondent that the charge
is vague and not specified that how many posts were created and who were
appointed. In spite of vagueness of the charge, suitable reply was given by the
delinquent stating that the temporary appointment was made based on the
requirements and such temporary appointment was subject to posts ratification by
the Commissioner though the act does not warrant posts ratification of the
Commissioner.
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W.A(MD)No.25 of 2020
8. Further, he would submit that G.O.Ms.No.255, Tamil Development and
Religious Endowment and Information (RE 4-2) Department, dated 28.06.2010
was struck down by this Court in W.P.(MD)No.1809 of 2011, dated 05.07.2012
and the writ appeal, W.A.No.491 of 2013, dated 22.11.2015 preferred by the State
was also dismissed. Therefore, the appeal preferred by the State has no leg to
stand.
9. A perusal of the order passed by the respondent as Joint Commissioner,
Trichirappalli indicates that on receipt of the request of certain temples under his
control through the fit person of those temples, he has permitted them to appoint
the persons by taking note of the exigency. The said appointment is specifically
temporary appointment for daily wage of Rs.200 and the appointments are made
subject to post ratification by the Commissioner.
10. Section 55 of the HR & CE Act specifically empowers the Trustee or fit
person to make an appointment in their institution whether permanent or
temporary. Only G.O.Ms.No.255, Tamil Development and Religious Endowment
and Information (RE 4-2) Department, dated 28.06.2010 in deviation of Section
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55 of the HR & CE Act mandates that no new posts permanent or temporary were
filled up in the religious institution without the sanction of the Commissioner.
This G.O.Ms.No.255, Tamil Development and Religious Endowment and
Information (RE 4-2) Department, dated 28.06.2010 had been rightly quashed
since it is in contravention to the Act. In the light of the above factual scenario,
when there is no statutory power for the fit person to appoint any servant whether
temporary or permanent, the said appointment should be ratified by the
Commissioner does not fall within the scope of dereliction of duty or misconduct
of the public service. After the G.O.Ms.No.255, Tamil Development and
Religious Endowment and Information (RE 4-2) Department, dated 28.06.2010
was quashed by the High Court on 05.07.2012 and confirmed in W.A.No.491 of
2013, dated 22.11.2015 the contention of the department that the respondent
violated G.O.Ms.No.255, Tamil Development and Religious Endowment and
Information (RE 4-2) Department, dated 28.06.2010, is untenable.
11. To ascertain whether at all the appointment mentioned in Annexure-2 to
the charge memo was for new post, this Court requested the Additional
Government Pleader representing the Appellants to point out who were
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W.A(MD)No.25 of 2020
temporarily appointed and when they appointed, why their appointments should
be considered as an appointment to newly created posts without authority, for
which, we could not get any answer from the learned counsel.
12. So the charge which contended that the respondent created new posts
without sanction of the Commissioner and appointed persons to those posts not
been substantiated. In the said circumstances, this Court finds no error in the
conclusion of the learned Single Judge to interfere in the writ petition.
Accordingly, the Writ Appeal is dismissed and the judgment of the learned Single
Judge is confirmed. Consequently, connected miscellaneous petition is closed.
[G.J.,J.] [S.M.,J.]
16.12.2022
Index : Yes / No
Internet : Yes / No
am
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W.A(MD)No.25 of 2020
DR.G.JAYACHANDRAN, J.
and
SUNDER MOHAN,J.
am
JUDGMENT MADE IN
W.A(MD)No.25 of 2020
16.12.2022
https://www.mhc.tn.gov.in/judis
