'Agamas Will Govern' : Madras High Court Exempts Archakas In Temples Constructed As Per Agamas From TN Govt Rules 2020

The challenge to Rule 2(c), 2(g), 7, 9, 11 to 15 and 17 of the Rules of 2020 is answered and, accordingly, the appointment of Archaka/Poojari would be governed by the Agama under which the temple or group of temples were constructed. It is, however, with a clarity that this judgment would not be applicable to those temples which are not constructed as per the Agamas. (Para 46)

Committee to identify temples constructed as per agamas

The petition was filed challenging Rules 2(c), 7(b) and 9 of the Tamil Nadu Hindu Religious Institutions Employees (Conditions of Service) Rules, 2020. In one writ petition, a challenge was made to Rules 2(g), 11 to 15 and 17 of the Rules of 2020.

The petitioners contended that the qualification given under the Rules of 2020 cannot apply for the post of Archaka/Poojari to be appointed in the temples,where construction, installation of idols and worship of deity is as per Agamas.

They submitted that in Seshammal and others v. State of Tamil Nadu, (1972) 2 SCC 11, the constitution bench had directed to follow the customs and rituals as stipulated in the Agamas. It was, however, held that exclusion of some and inclusion of a particular denomination for appointment of Archakas within the Agamas would not violate Article 14 of the Constitution of India, so long as such inclusion/exclusion is not based on criteria of caste, birth or any other constitutionally unacceptable parameters.

Further, the rules prescribe an Archaka/Poojari to have undergone one year certificate course for being appointed, which is an attempt to eliminate the prospective candidates for being members of the petitioner sangam at the entry level itself, because most of them do not possess the requisite qualification. Therefore, the prescription of qualification of one year certificate course is nothing but an assault on the rights of the Sivachariyars.

The petitioners contended that the right of appointment lies with the trustees under Section 55 of the Act of 1959, but offending the said provision, the government is trying to take over the rights of the trustees and for that reason the definition of "appointing authority" given under Rule 2(c) of the Rules of 2020 has also been challenged. It is submitted that a Fit Person cannot exercise the power of the trustee and, therefore, inclusion of the words "Fit Person" under Rule 2(c) of the Rules of 2020 also deserves to be struck down. The appointments should be made only by the trustees.

An additional argument was made to constitute a Committee headed by a Retired High Court Judge to identify the temples, where construction, installation of idols and worship of deity is as per Agamas. The identification of the temples in reference to the Agamas is a pre-requisite for appointment of Archaka/Poojari, because different Agamas have different worshipping procedures, rituals and customs to be followed.

State's contentions

The respondent submitted that the Rules under challenge are applicable not only for the appointment to the post of Archaka/Poojari, but also in regard to other posts, and if those Rules are struck down, the appointment of the officers and employees would remain unguided. The Rules govern even the appointment of Archaka/Poojari because he is considered to be an officer/employee of the temple in view of the judgment of the Apex Court in the case of Seshammal and others.

Further, it was contended that the Rules under challenge do not offend Articles 16(5), 25 and 26 of the Constitution of India, rather Article 25 of the Constitution of India allows framing of Rules even for the endowments or the temples constructed as per the Agamas.

With respect to the term ''appointing authority" given under Rule 2(c) of the Rules of 2020, it was submitted that the authority of the appointment exists with the trustees and, therefore, the definition does not offend the provisions of the Act of 1959 or the constitutional provisions. The Fit Person is appointed under Section 49 of the Act of 1959 in the absence of the trustee. In the absence of the Trustees, the Fit Person discharges the duties of the Trustee and, therefore, in those temples where there is a dispute amongst the Trustees or for any other reason, as envisaged under Section 49 of the Act of 1959, a Fit Person is appointed, then the powers of the trustees are exercised by him. It was submitted that if the power was not given to "Fit Person" temples governed by the Fit Person will not be able to make appointment.

With respect to qualifications for appointment, it was submitted that the same may be clarified by the court that the rules will not be applicable to that extend only and only with respect to such temples where agama practice was offended.

The respondents also sought for appointment of a committee to identify the temples following the agama practice.

Court's Observations on other Rules

With respect to the term appointing authority, the court agreed that the definition did not violate any constitutional provision as even though the power of appointment was with the trustees, in their absence, the affairs had to be looked after by someone.

It is no doubt true that the right to make appointment of the Archakas lies with the trustees, but this court cannot be oblivious to the fact that in the absence of the trustees, the affairs of the temple have to be looked after by someone. Only in the absence of trustees or for any reason given in Section 49 of the Act of 1959, a fit person is appointed to exercise the power of trustees. Hence, we do not find that the definition of the term "appointing authority" given under Rule 2(c) of the Rules of 2020 offends the constitutional provision or the Act of 1959.

The court however also directed that the government should not appoint a fit person for an indefinite period and arrangements had to be made to nominate/appoint trustees.

Challenge to Rules 11 to 15

With respect to challenge to Rules 11 to 15 of the Rules of 2020, the court held the same to be Constitutional. Rule 12 states that each religious institution shall be a separate unit for the purpose of recruitment, seniority and promotion. Therefore, if an individual is appointed as Archaka/Poojari keeping in mind the custom and usage of the particular Agama, then such a religious institution should make recruitment and promotion of their employees as per the Agamas. Hence, a challenge to this provision was unsustainable. The court observed that none of the Rules under challenge were against the constitutional provisions and summarily rejected the challenges against them.

The court highlighted that if any appointment was made offending the Agama, the same could be challenged before the court. Further, the directions were not applicable to temples which were not constructed following the agama practice.