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W.P.No.3997 of 2018     ANAND VENKATESH, J.           The subject matter of challenge in this writ petition pertains to the notification issued by the Executive Officer of Sri Sugavaneswarar Swamy Temple, Salem dated 18.01.2018 calling for applications to fill up the post of Archagar / Sthanigar. Mr.R.Singaravelan, learned Senior Counsel appearing on behalf of the petitioner urged the following points. The temple in question is an Agamic temple and hence any appointment of Archagar / Sthanigar can be done only as per the customs and usage.

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W.P.No.3997 of 2018

 

 

  1. ANAND VENKATESH, J.

The subject matter of challenge in this writ petition pertains to the notification issued by the Executive Officer of Sri Sugavaneswarar Swamy Temple, Salem dated 18.01.2018 calling for applications to fill up the post of Archagar / Sthanigar.

 

  1. Mr.R.Singaravelan, learned Senior Counsel appearing on behalf of the petitioner urged the following points.

 

  • The temple in question is an Agamic temple and hence any appointment of Archagar / Sthanigar can be done only as per the customs and usage.

 

  • In order to substantiate the above submission, the learned Senior Counsel specifically relied upon the register maintained under Section 38 of the Hindu Religious and Charitable Endowments Act (HR & CE Act) dated 07.08.1933, wherein it has been specifically mentioned that there is a hereditary right to perform Abhishegam, Archana, Deeparadhana, Pooja etc., and the person performing the same is not entitled for any maanyam. The second document that was relied upon by the learned Senior Counsel was the judgment in O.S.No.207 of 1946 passed by the District Munsif, Salem pertaining to the same temple, wherein issue No.1 specifically dealt with the customs and usage and the right of the person under the custom and it was held that nothing in the Madras Hindu Religious Endowments Act should affect the rights of those persons who are otherwise entitled under the customs. The third document that was relied upon by the learned Senior Counsel is the Board’s order dated 09.12.1946 wherein the Board has held that there are no powers under the Hindu Religious and Charitable Endowments Act to alter or modify or cancel the rights acquired and enjoyed by the concerned person due to long standing usage and custom.

 

  • The learned Senior Counsel made it clear that the petitioner is not attacking the impugned notification by claiming any hereditary right to the post of Archagar / Sthanigar and the main ground of attack is that the qualifications that are prescribed in the notification is completely dehors the requirements under the relevant Agama. Therefore, it was contended that the notification, even without prescribing the requirement under the Agama for appointment of Archagar / Sthanigar, cannot be sustained and the notification is liable to be interfered on this ground alone.

 

  • The learned Senior Counsel, to substantiate the above argument, relied upon the judgment of the Apex Court in Adi Saiva Sivachariargal Nala Sangam and Others -vs- Government of Tamil Nadu and Another reported in 2016 (2) SCC 725 and placed specific reliance upon Para 50 in the said judgment. The learned Senior Counsel submitted that the determination for appointment as Archagar / Sthanigar cannot be dehors the custom or usage and whenever that issue is raised, the qualification prescribed under the notification must satisfy the requirement under the Agama for the purpose of performing the function of Archagar / Sthanigar.  The learned Senior Counsel also placed reliance upon Para 51 of the judgment to emphasize that the appointment of Archagar / Sthanigar will have to be made in accordance with the Agamas.

 

  • The learned Senior Counsel further placed reliance upon the recent Division Bench judgment of this Court in All India Adi Saiva Sivachariargal Nala Sangam and Others rep.by its General Secretary BSR Muthukumar -vs- State of Tamil Nadu and another reported in 2022 SCC Online (Mad) 4154. The learned Senior Counsel specifically placed reliance upon Paras 48 to 53 in the above said judgment. By placing reliance upon this judgment, the learned Senior Counsel submitted that a Committee has been appointed to identify the temple constructed as per the Agamas and those temples which are Non-Agamic temples.  Till this exercise is completed by the Committee, the learned Senior Counsel contended that the appointment of Archagar / Sthanigar cannot be made since only after determining the particular temple to belong to a particular Agama, the custom and usage of that Agama can be decided.  Therefore, when the very first step is yet to be completed viz., determination of Agamic temples, appointing Archagar / Sthanigar by prescribing certain qualifications without determining whether they fulfill the prescriptions under the Agamas will amount to putting the cart before the horse.

 

  • The learned Senior Counsel also placed reliance upon the judgment of the learned single Judge in P.(MD) Nos.21738 and 21739 of 2022 dated 24.02.2023, wherein the learned Single Judge had taken into account the earlier judgment of the Apex Court and also the judgment of the Division Bench and the learned Senior Counsel specifically placed reliance upon Paragraphs 9 and 10 of the said judgment.

 

  • One other ground that was raised by the learned Senior Counsel was that the appointment of Archagar / Sthanigar cannot be done by the HR & CE Department and that in the present case, the 3rd respondent is admittedly administering the temple and he is a servant of the HR & CE Department and therefore the impugned notification is liable to be interfered on this ground also.

 

  1. Per contra, Mr.N.R.R.Arun Natarajan learned Special Government Pleader appearing on behalf of the respondents made the following submissions.

 

  • The petitioner had claimed his right as per the pleadings in the affidavit on the ground that he is doing Poojas in his line of succession and it is being done on a hereditary basis. Therefore, the learned Special Government Pleader contended that such hereditary right to be appointed as Archagar / Sthanigar is no longer available by virtue of the judgment of the Apex Court in (1972) 2 SCC 11  Seshammal and Others -Vs- State of Tamil Nadu.  For this purpose, the learned Special Government Pleader specifically relied upon Paragraphs 21 to 24 of the judgment.

 

  • The learned Special Government Pleader submitted that for the purpose of determining the customs and usages that are practiced in a particular temple by Archagar / Sthanigar, even as per the notification, the applicant is expected to produce the fitness certificate from the Chief Priest. While issuing such a certificate, the Chief Priest will mention about the custom and usage of the temple for which the applicant has been trained and therefore the same will sufficiently take care of the apprehension raised by the petitioner that persons who are not aware about the Agamic practices of the concerned temple will be appointed.

 

  • It was further contended that the issue as to whether the temple follows a particular Agama and whether the applicant does not satisfy the same, are factual issues which cannot be decided in a writ petition and at the best it can only go before a competent Court where evidence must be recorded and ultimately a decision has to be arrived at. Therefore, this issue can never be raised in a writ petition.

 

  • It was contended that the requirement of the fitness certificate prescribed under Rule 12 of the Madras Hindu Religious Institutions (Officers and Servants) Rules 1964 has been upheld by the Apex Court in Seshammal’s case referred supra. Therefore, the apprehension raised by the petitioner will be sufficiently answered by virtue of the fitness certificate given by the Chief Priest who performs the Pooja in the concerned temple as per the Agamas.

 

  • It was further contended that the notification issued by the Executive Officer is perfectly in order and even the Division Bench in All India Adi Saiva Sivachariyargal Nala Sangam’s case referred supra at Paragraphs 38 and 39 has made it very clear that the executive authority will also be construed as a Trustee and in his absence the Fit Person appointed under Section 49 of the Act. In the light of this finding, it was contended that the notification issued by the Executive Officer does not suffer from any illegality.

 

  • It was further contended that the impugned notification was issued under the 1964 Rules and the challenge to the Rules has already been rejected by the Apex Court in Seshammal’s case referred supra. Hence, the petitioner cannot be permitted to put forth a case by relying upon the subsequent Rules which were amended in the year 2020 and the petitioner has to necessarily confine his case only with regard to the 1964 Rules.  Hence, the subsequent development that has taken place based on the 2020 Rules cannot be taken advantage by the petitioner.

 

  1. Mr.R.Singaravelan, learned Senior Counsel appearing on behalf of the petitioner, in reply to the last submission made by the learned Special Government Pleader contended that the said Rule did not take away the mandate of fulfilling the requirements under the relevant Agama and in fact, while dealing with this issue in Paragraph 24 of the judgment in Seshammal’s case referred supra, such an apprehension was raised before the Apex Court and the Apex Court at that point of time observed that it was unfounded. However, by passage of time whatever apprehension was raised by the Apex Court in 1972 has now come true and there is a direct challenge to the Agamas and to the practices followed under the relevant Agamas.

 

  1. An order in this writ petition will have a wider ramification by virtue of the direction issued by the Division Bench in All India Adi Saiva Sivachariyargal’s case cited supra at Para 53. The Division Bench has now constituted a Committee and directed the Committee to identify the Agamic and Non-Agamic temples.  Till this exercise is completed, it is not clear as to how the appointment of Archagar / Sthanigar will be made without determining as to whether they fulfill the requirements under the relevant Agamas.  Therefore, one thought that came to me at the time of hearing this writ petition was that whether there will be a stalemate in the appointment of the Archagar / Sthanigar for the temples till this exercise is completed by the Committee.  This Court has to go into this issue since the petitioner specifically claims that the temple in question is an Agamic temple and therefore the customs and usages must be followed.  If qualifications are prescribed in the notification for the appointment of Archagar / Sthanigar without specifying the fulfillment of the requirement under the particular Agama, it is not known as to how the appointment can be made to the Agamic Temples.  To satisfy this requirement, the learned Special Government Pleader places reliance upon Rule 12, under which a fitness certificate is given by the Chief Priest.  How far this fitness certificate will satisfy the requirement under the Agama, has to be necessarily examined.  Hence, there shall be a direction to the learned Special Government Pleader to produce sample fitness certificate before this Court to have an idea as to the nature of the certificate that is given by the Chief Priest and which is acted upon at the time of considering the appointment of Archagar / Sthanigar.  In any event, the learned Special Government Pleader sought for some time to make his submissions on this issue since this order may have wider ramifications.  The learned Senior Counsel also submitted that he will make his submissions on this issue.

 

  1. The order thus far has captured the main issues that are involved in this case and the rival contentions raised on either side. The last issue that has been summarised supra requires a very serious consideration since it may impact the appointment of Archagar / Sthanigar going forward till the Committee comes up with its final recommendations by identifying the Agamic and Non-Agamic Temples.

 

  1. Before concluding this order, it must be mentioned that the affidavit filed in support of the writ petition contains averments deriving the right of the petitioner as a hereditary right. If that is the only ground on which the writ petition was filed, the judgment of the Apex Court in Seshammal’s case referred supra will be the direct answer.  However, the learned Senior Counsel, in the course of his arguments, has raised larger issues and has contended that the petitioner is questioning the notification on the ground that it does not satisfy the requirements provided under the concerned Agama that governs the subject temple.  The respondents will have to meet this ground that has been raised.  Hence, there shall be a direction the learned  Counsel appearing for the petitioner to take steps to file a petition to raise additional grounds on the larger issue that was raised by the learned Senior Counsel.  A copy of the same shall be served on the learned Special Government Pleader and the same will enable the respondents to file an additional counter in this writ petition.  This process shall be completed before the next date of hearing.

 

  1. Post this writ petition under the caption ‘For Passing Further Orders’ on 19.06.2023 at 2.15 p.m.

                                                08.06.2023

KST
N. ANAND VENKATESH, J.

KST

 

 

 

 

 

 

 

 

 

 

W.P.No.3997 of 2018

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

08.06.2023

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