WP/26804/2008 of Poojar Gururajachar, Vs The State of Andhra Pradesh, on 30 December 2008

O r d e r:

The petitioners are Archakas in Sri Raghavendra Swamy MoolaBrundavanam of Sri Raghavendra Swamy Mutt, Mantralayam(hereinafter referred to as ‘the Mutt’). They filed the writ petitionquestioning the notice dated 22.11.2008, issued by respondent No.4-Mutt as being arbitrary, illegal, irrational, unjust and violative of Articles14, 19 and 21 of the Constitution of India, apart from being contrary tothe provisions of Section 34(3) of the A.P. Charitable and HinduReligious Institutions & Endowments Act, 1987 (hereinafter referred toas ‘the Endowments Act’) and contrary to the well established customaryrights.

The learned counsel for the petitioners submitted that thepetitioners are hereditary Archakas in the Mutt. According to him, thehereditary rights of Archakas, which stood abolished by virtue of Section34(1) of the Endowments Act, are not sought to be restored by addingsub-section (3) to Section 34 of the Endowments Act by Act 33 of 2007,which came into force w.e.f. 03.01.2008. He submitted that by virtue ofthe newly added sub-section (3) to Section 34 of the Endowments Act,the petitioners who were doing archakatvam service at the time of repealof 1966 Endowments Act, are entitled to continue to have the samerights of archakatvam. Hence, he submitted that the impugned notice,issued by respondent No.4-Mutt, which calls upon all the Archakas tosubmit their Bio-Datas, for the purposes of selecting suitable andqualified candidates for appointment as Archakas, runs contrary to theprovisions of Section 34(3) of the Endowments Act, for it seeks to disturbthe petitioners as Archakas. Hence, he prayed that the impugned noticeissued by respondent No.4-Mutt, be set aside and the writ petition beallowed.

The learned Advocate General appearing on behalf of therespondents submitted that hereditary rights of Archakas and other officeholders which were abolished by Section 34(1) of the Endowments Act,was upheld by the apex Court in A.S. Narayana Deekshitulu v. State of A.P.[[1]]. Consequent to abolition of hereditary rights of Archakas,most of the families of Archakas faced financial problems, andconsidering this plight of the families of Archakas engaged inarchakatvam, the apex Court in I.A. No. 7 in W.P. (C) No. 638 of 1987and in I.A. No. 3 in Transfer Case No. 170 of 1987, gave certaindirections stressing the need to preserve the customs and usage with aview to protect the sanctity of religious rituals. With a view to give effectto this order, the Government after consulting all the political parties,amended the Endowments Act by Act 33 of 2007 by inserting amongother sub-section (3) in Section 34, sub-section (4) in Section 35 andSection 65-A in the Endowments Act, which came into force w.e.f.03.01.2008.

He denied that the newly added sub-section (3) to Section 34 ofthe Endowments Act, had restored the hereditary rights that stoodabolished by virtue of Section 34(1) of the Endowments Act. Hesubmitted that sub-section (3) of Section 34 of the Endowments Act,sought to protect the rights of qualified members of the archaka familieswhich continued archakatvam service under the repealed 1966Endowments Act and recognized as such by the competent authority, bygiving them right to archakatvam, without any right to emoluments whichthey received under 1966 Endowments Act, but subject to receipt ofemoluments in accordance with the scheme to be framed under Section144 of the Endowments Act. With a view to give effect to this provision,the competent authority fixed the cadre strength for respondent No.4-Mutt, as provided under sub-section (4) of Section 35 of theEndowments Act and the payment of salaries and emoluments to thesaid cadre would be met from the fund to be created under Section 65-Aof the Endowments Act, and vested in respondent No.3-Commissionerof Endowments.

He submitted that the Government in exercise of power conferredon them under Section 35(4) read with Section 153 of the EndowmentsAct, frames Rules known as A.P. Charitable and Hindu ReligiousInstitutions and Endowments Office Holders and Servants ServiceRules, 2000 (hereinafter referred to as ‘the Service Rules’), and notifiedthem in G.O. Ms. No. 888, Revenue (Endowments.I), dated 08.12.2000,which among other provided for appointing authority, fixation of cadrestrength, qualifications, disqualifications, age of recruitment, age ofsuperannuation, seniority, promotion etc. Now that the fund as providedunder Section 65-A of the Endowments Act has been created, respondent No.3-Commissioner of Endowments has fixed the cadrestrength to respondent No.4-Mutt, and it is for filling up the qualifiedmembers as provided under sub-section (3) of Section 34 of theEndowments Act, respondent No.4-Mutt issued the impugned notice,which cannot be said to be contrary to the provisions of sub-section (3)of Section 34 of the Endowments Act nor sub-section (3) of Section 34can be said to have restored the hereditary rights that stood abolishedby Section 34(1) of the Endowments Act. Hence, he submitted that the writpetition be dismissed, else it would amount to nullifying the provisions ofsub-section (3) of Section 34 of the Endowments Act.

Heard the learned counsel for the petitioners and the learnedAdvocate General for the respondents.

In the light of the arguments advanced, the only question thatarises for consideration in the writ petition is – Whether by insertion ofsub-section (3) in Section 34 of the Endowments Act, the hereditaryrights of Archakas and other Officer Holders, which were abolishedby virtue of Section 34(1) of the Endowments Act, stood revived?

The Charitable and Hindu Religious Institutions andEndowments, were initially governed by the provisions of the

Conclusion

A.P. Charitable and Hindu Religious Institutions and Endowments Act,1966. However, difficulties were experienced in implementation ofsome of its provisions, and many representations were made for removalof the said difficulties. Acting on the representations from the generalpublic about the functioning of Charitable and Hindu ReligiousInstitutions, and the management of their properties, and the difficultiesbeing faced, the Government of Andhra Pradesh, constituted aCommission headed by Sri Justice Challa Kondaiah, former ChiefJustice of Andhra Pradesh High Court, inter alia to review and suggestmeasures for better management of properties of institutions andendowments, utilization of funds for their benefits, nature of rights heldby hereditary Archakas, Mirasidars and other holders of temples etc.,payment of emoluments to such office holders and servants whileensuring that religious worship is performed according to the Agamasand Customs.

The Commission, having held a detailed enquiry, submitted itsreport on 28.02.1986. The Government, having considered the reportand the recommendations made therein, accepted the same with certainmodifications. Thereupon, the Government proposed to enact acomprehensive law providing for better management of the properties and utilization of funds of the institutions and endowments, abolishingthe hereditary rights of Archakas, Miracidars and other servants withoutdisturbing the present incumbents but to continue them on regular cadrein their place and to afford proper training to the existing Archakas and toother servants of the institutions and endowments wherever necessary,and accordingly, enacted the A.P. Charitable and Hindu ReligiousInstitutions and Endowments Act, 1987, which inter alia abolished thehereditary rights of Archakas and other Office Holders.

Admittedly, the validity of sub-section (1) of Section 34 of theEndowments Act, which abolished hereditary rights of Archakas andother Office Holders, was upheld by the apex Court in A.S. Narayana Deekshitulu v. State of A.P.However, therespondents state that they received numerous complaints highlightingthe plight of the families of the traditional Archakas becomingimpoverished and the customs and usage and sanctity of religiousrituals taking a back seat. To mitigate the hardship of the Archakas,applications were filed, and the apex Court in I.A.

No. 7 in W.P. (C) No. 638 of 1987 and in I.A. No. 3 in Transfer Case No.170 of 1987, gave certain directions stressing the need to preserve thecustoms and usage with a view to protect the sanctity of religious rituals. Pursuant to the said order, it appears that the Government helddiscussions with all the political parties and decided to amend theEndowments Act, in a manner which would preserve the customs andusage and protect the sanctity of religious rituals. On the basis of suchdecision, the Government have amended the Endowments Act, by Act33 of 2007, which came into force w.e.f. 03.01.2008. Act 33 of 2007,which seeks to remove the difficulties which cropped up by reason ofabolition of hereditary rights, which resulted in the sanctity of thereligious rituals being lost, inter alia inserted sub-section (3) in Section34, sub-section (4) in Section 35 and Section 65-A in the EndowmentsAct.

The petitioners, in fact, are seeking to give effect to the provisionsof Section 34(3) of the Endowments Act, but it is their case that theimpugned notice issued by respondent No.4-Mutt, which called upon allthe Archakas to submit their Bio-Datas, is not in consonance with theprovisions of Section 34(3) of the Endowments Act. To consider thisquestion, it would be appropriate to refer to the provisions of sub-section(3) of Section 34 of the Endowments Act, which reads as under:

Notwithstanding anything contained in sub-sections (1) and (2) of this section,the qualified members of those Archakas families which were continuing in archakatvam service under the provisions of the repealed the Andhra Pradesh Charitable and HinduReligious Institutions and Endowments Act, 1966 and recognized as such by thecompetent authority shall continue to have the right to archakatvam without having anyright to emoluments such families used to receive earlier under Act 17 of 1966. However, they shall receive emoluments in accordance with the scheme under Section144.

From a reading of the above, it would become clear that eventhough sub-section (1) and (2) of Section 34 of the Endowments Act,abolished the hereditary rights in Mirasidars, Archakas and other officeholders and servants, the fact remains, the archakas who seek to claimthe benefit of sub-section (3) of the Endowments Act, for continuing asarchakas, have to satisfy four conditions, namely (1) he must be amember of Archaka family,

(2) he should be a qualified archakas, (3) he must have continuedarchakatvam as on the date of repealing of 1966 Endowments Act, (4)he should be recognized as archaka by the competent authority. Unlessthe Archakas claiming the benefit of sub-section (3) of Section 34 of theEndowments Act, satisfy the four qualifications, they cannot continue tohave the right to archakatvam. Further, those who qualify to continue tohave the right to archakatvam, under sub-section (3) of Section 34 of theEndowments Act, will not be entitled to emoluments which they used toreceive under the 1966 Endowments Act, but would be entitled to inaccordance with the scheme to be framed by the Commissioner underSection 144 of the Endowments Act.

It is the case of the respondents that hitherto, there was no cadrestrength fixed in respect of respondent No.4-Mutt, and that respondentNo.3-Commissioner of Endowments, has now fixed the cadre strength inrespect of respondent No.4-Mutt at six, in exercise of the powerconferred on him under sub-section (4) of Section 35 of the EndowmentsAct and has also created a fund, as provided under Section 65-A of theEndowments Act, for payment of salaries and other emoluments ofArchakas, and that the Archakas, who qualify to continue to have theright of archakatvam under sub-section (3) of Section 34, shall be paidemoluments in accordance with the scheme to be framed under Section144 of the Endowments Act. It is their further case that the Governmentin G.O. Ms. No. 888, Revenue (Endowments.I), dated 08.12.2000, whichamong other provided for appointing authority, fixation of cadre strength,qualifications, disqualifications, age of recruitment, age ofsuperannuation, seniority, promotion etc. These Service Rules, therespondents contend were implemented in almost all the institutions,except respondent No.4-Mutt and two others.

By virtue of sub-section (3) of Section 34 of the Endowments Act,all the qualified members of the Archakas, who continued archakatvamat the time of repealing of 1966 Endowments Act, are not entitled to havethe right to archakatvam, and their right to continue as such, is subject totheir fulfilling the eligibility criteria and subject to their number notexceeding the cadre strength fixed for respondent No.4-Temple byrespondent No.3-Commissioner of Endowments in exercise of powerconferred on him under

Section 35(4) of the Endowments Act. It is with a view to identify sucheligible Archakas for continuance as such as per the provisions of sub-section (3) of Section 34 of the Endowments Act, respondent No.4-Mutthas issued the impugned notices, calling upon all the Archakas tosubmit their Bio-Datas, so that they would be appointed in the cadrestrength fixed by respondent No.3-Commissioner of Endowments, forrespondent No.4-Mutt. Therefore, the impugned notice, issued byrespondent No.4-Mutt, cannot be said to be contrary to the provisions ofsub-section (3) of Section 34 of the Endowments Act, not can it be saidthat by insertion of sub-section (3) in Section 34 of the Endowments Act,the Government had restored the hereditary rights of Archakas and otherOffice Holders, which stood abolished by virtue of Section 34(1) of theEndowments Act. If the impugned notice is interfered with by this Court,then it would amount to interfering with identification process of eligibleArchakas for appointment in the cadre strength fixed for respondentNo.4-Mutt, thereby nullifying the provisions of sub-section (3) of Section34 of the Endowments Act, the implementation of which, the petitionersare also seeking.

For the foregoing reasons, I find no merit in the writ petition, andthe same is accordingly dismissed. No costs.

Dated: 30[th] December, 2008.

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N.V. RAMANA, J.

Note:

Mark LR copy.(B/o)KSR

[1](1996) 9 SCC 548