Archaga case affidavit IN THE HIGH COURT OF JUDICATURE AT MADRAS (SPECIAL ORIGINAL JURISDICTION) W.P. No. of 2021 1. S. Muthuswamy S/o. Late Sengamalai 4/153-1, Alaya Road, Siruvachur, Perambalur, Tamil Nadu – 621 113.

IN THE HIGH COURT OF JUDICATURE AT MADRAS
(SPECIAL ORIGINAL JURISDICTION)
W.P. No. of 2021
1. S. Muthuswamy
S/o. Late Sengamalai
4/153-1, Alaya Road,
Siruvachur, Perambalur,
Tamil Nadu – 621 113.

2. S. Kanagaraj
S/o. Late Sundaram
Sivan Koil Street,
Siruvachur, Perambalur,
Tamil Nadu – 621 113.

3. S. Karupannan
S/o. Late Solaimuthu
3/70, Nadu Street,
Siruvachur, Perambalur,
Tamil Nadu – 621 113.

4. R. Ramesh
S/o. Late Raju
49, Sivan Koil Street,
Siruvachur, Perambalur,
Tamil Nadu – 621 113.

5. A. Mannadi
S/o. Late Annadurai
2/37, Perumal Koil Street,
Siruvachur, Perambalur,
Tamil Nadu – 621 113.

6. S. Periyasami
S/o. Sundaram
4/141, Alaya Road,
Siruvachur, Perambalur,
Tamil Nadu – 621 113.

7. Saravanan Sundaram,
S/o. Sundaram,
3/132, Nadutheru,
Siruvachur, Perambalur,
Tamil Nadu – 621 113.

8. Dhanabal
S/o. Durairaj,
2/80A, South Street,
Siruvachur, Perambalur,
Tamil Nadu – 621 113. …Petitioners

Vs.

1. State of Tamil Nadu,
Rep. by its Secretary,
Department of Hindu Religious & Charitable Endowments,
Secretariat,
Fort St. George,
Chennai – 600 009.

2. The Commissioner,
Hindu Religious & Charitable Endowments,
Nungambakkam High Road,
Chennai – 600 034.

3. Deputy Commissioner,
Hindu Religious & Charitable Endowments,
Tiruchirapalli

4. Joint Commissioner,
Hindu Religious & Charitable Endowments,
Tiruchirappalli.

5. Assistant. Commissioner, (Fit Person)
Hindu Religious & Charitable Endowments,
Perambalur.

6. Executive Officer,
Sri Madhurakali Amman Temple,
Siruvachur, Perambalur
612113
…Respondents

AFFIDAVIT FILED ON BEHALF OF THE PETITIONERS
I, A. Mannadi, son of Late Annadurai, Hindu, aged about 36 years, residing at 2/37, Perumal Koil Street, Siruvachur, Perambalur, Tamil Nadu – 621 113, now temporarily come down to Chennai, do hereby solemnly affirm and sincerely state as follows:
1) I respectfully submit that I am the 1st Petitioner herein and as such, I am well acquainted with the facts and circumstances of the case herein. I am filing this Writ Petition on behalf of the other Petitioners in the above Writ Petition also and I am authorised to do so.

2) I respectfully submit that the petitioners are the hereditary poosaris of Sri Madurakaliamman Temple, Siruvachur, Perambalur District belonging to a family of Malaiman Udayar community, native to the village. The petitioners are preferring these Writ Petitions challenging the validity of the Tamil Nadu Hindu Religious Institutions Employees (Conditions of Service) Rules, 2020 and on similar lines, the continuance and role of the Respondents Department in the concerned religious institution in the following facts and circumstances.

3) The Madurakaliamman Temple at Siruvachur is considered to be over 1,000 years old and is a celebrated deity in the locality. The Sthala Puranam that is told, is that Sri Madurakaliamman while visiting the village, had befriended Sri Selliamman who was the original deity therein and stayed during the night. It is told that Sri Selliamman had complained to Madurakaliamman about her being contained and used by a tantric for his own impious purposes. On hearing her plight, Madurakaliamman promised to relieve her and consequently while the tantric summoned Selliamman, Madurakaliamman appeared instead and beheaded him. Selliamman being released, requested Madurakaliamman to reside in her place and Selliamman moved to a nearby hill called Periasami Malai. Consequently, Madurakaliamman is believed to have decided to reside and give darshan on Mondays and Fridays of a week and the remaining days will reside with Selliamman who is her sister in the hills. It is pertinent to state that, after the intervention of the respondent department, the custom has been altered to include the opening of the temple for worship during the full moon and new moon days. Other than that, the temple opens on non-regular days for Utsavam in the month of Chitirai (April-May) and for Navarathri. The deepaarathana is always shown first to Selliamman and only then to Madurakaliamman. In another version of this Sthala Puranam, it is told that it was Kannagi, who after the burning of Madurai had come by the village and on hearing Selliamman’s plight had invoked Goddess Kali and with her blessings, received her attributes/ Goddess Kali presented herself and beheaded the tantric and stayed there thereafter. In later days, Shri Sadasiva Bramendra, considering the Ugra (furious) nature of the deity, is said to have installed Shri Chakra in the temple. The tantric is said to have been buried in the temple premises and there is a version that the poosaris are his descendants.

4) I respectfully submit that, along with Sri Madurakaliamman, there are group temples which comprise of Selliamman Temple, Periasami Temple, Ayyanar Temple, Solamuthusami Temple and Mariamman Temple, apart from other deities in the village. It is submitted that traditionally, the poosaris of the temple come from 8 families belonging to a sub-sect of Udaiyar Community (Malaimaan), from the village and the 8 petitioners herein come from the 8 families respectively. It is further submitted that it was the members of the 8 families who have been known to have been administering the temples from times known. The Deity herein has been celebrated as the family deities of several thousands of families belonging to Smarthas, Sivacharya, Chettiyars and various communities from the surrounding regions of Thanjavur, Trichy, Kumbakonam etc.

5) It is respectfully submitted that along with the above-said temples, there is also an attached Kailasanatha Swami Temple wherein the pooja is done generally by Sivachariars as per Agamic custom and tradition. The worship in Murugan temple of the village is done by the petitioners as well as another group called pandarams.

6) I respectfully submit that it is learnt that in 1939, owing to the move of the then Madras Hindu Religious Endowments Board, the administration of the temple was sought to be taken over by the Department and it is learnt that by an arrangement, the Hereditary Poosaris were permitted to remain with their Rights intact. It is learnt that a copy of a Court Order in connection with the same is available with the Respondent’s office, while we are trying to obtain the same from the Court.

7) I respectfully submit that though in the past there were non-hereditary trustees appointed by the Government, their term has expired since the year 2011 and no trustees have been appointed despite the statutory scheme requiring the same. Instead, invoking the provision for the temporary office of a Fit Person, the Department has kept an employee of it, namely the 3rd Respondent Officer as the Fit Person and has been running the affairs along with the Executive Officer, who has been functioning in the temple since the inception of the Act. We are advised to state that the perennial continuance of the Fit Person, as well as the Executive Officer,
8)
9) is contrary to the scheme of the Hindu Religious and Charitable Endowments Act, 1959 as well as the Rights guaranteed under the Constitution.

10) I respectfully submit that the temples’ lands are in the name of Selliamman and in addition, the Petitioner’s family has endowed agricultural lands to Selliamman and Kailasanathasami Koil.

11) I respectfully submit that, being the hereditary poosaris as per tradition, the Petitioners do not take or wish to take any salary from the Department and partake in the collections of money given by the devotees on the poosaris’ plate, apart from managing their income by agriculture. The poosaris from the 8 families perform pooja at the various temples of the village by rotation every week. The manner of worship is as per customs associated with the temple from times immemorial and the language of the pooja is in Tamil. The kumbabishekam is done as per the agamas by Sivachariars. The worship in Kailasanathaswami Temple is done as per the usual Shaivite agama traditions.

12) I respectfully submit that the Madurakaliamman temple has its own unique customs, traditions and form of worship, distinct from other village deities, including Kali. The first unique aspect is of there being a Shree Chakra Pradishta below the deity. The second aspect is, the nature of neivedyam and discipline that has to be followed for this temple is unique from other village deities. The Temple also has its unique custom of 2 days darshan in a week, single kaala pooja and only one Abhishekam in a day. I am therefore advised to state that considering the unique characteristics and customs of the temple, the temple is of the character of a denominational religious institution, extending the same protection that would be required for an institution having protection under Article 26 of the Constitution.

13) I respectfully submit that the Petitioners herein who are poosaris, are servants of the deity. In the present case, the unique significance is that the family of the poosaris were also managing and administering the temples. I respectfully submit that I am advised to state that though the poosaris have been held by Courts as servants of the Temple or the religious institution, it is emphasised that they are never the servants of the Department or the Government. I respectfully submit that the poosaris, as long as their health permits, discharge their duties and then pass on the responsibilities to the next male descendant in the respective family.

14) I respectfully submit I am advised to state that while in 1964 there was a Service Rules by name, the Tamil Nadu Hindu Religious Institutions (Officers & Servants) Service Rules, 1964, it predominantly dealt with non-religious servants and was predominantly welfare-oriented. The provisions in relation to qualifications also pertain only to non-religious servants and non-hereditary posts. I respectfully submit that Rule 12 alone prescribed for obtaining a certificate of fitness from the head of an institution imparting instruction in agamas and ritualistic matters.

15) I respectfully submit that though, in 1970, Section 55 was amended to remove the recognition of Hereditary Right, I am advised to state that certain rights are well protected pursuant to the Judgement of the Hon’ble Supreme Court in Seshammal Vs. State of Tamil Nadu reported in (1972) 2 SCC 11, wherein the State has conceded as follows:
“The learned Advocate-General argued that the trustee was bound under this provision to administer the affairs of the temple in accordance with the terms of the trust and the usage of the institution. If the usage of the institution is that the Archaka or Pujari of the temple must be of a particular denomination, then the usage would be binding upon him and he would be bound to make the appointment under Section 55 in accordance with the usage of appointing one from the particular denomination. There was nothing in Section 55, in his submission, which released him from his liability to make the appointment in accordance with the said usage.”

16) I respectfully submit, I am advised to state that even the amended Sections 55 since the amendment in the Tamil Nadu Hindu Religious and Charitable Endowments (Amendment) Act, 1970, clearly postulated appointments in religious institutions only by trustees in all cases. I respectfully submit that post the amendment, Section 116(2)(xxiii) contemplates Rules to be made by the Government in regard to qualifications to be possessed by the officers and servants to be appointed in religious institutions and conditions of service. Further, an explanation was added to Section 55(1) that the expression “office-holders or servants” shall include Archakas and pujaries. The aforesaid provisions were upheld by the Hon’ble Supreme Court in the Seshammal Case referred above, on the supposition that the State would not do anything or frame a Rule contrary to the agamas or established usages and provided liberty to any person interested in temple worship to challenge any Rule which purports to interfere with the rituals and ceremonies of the temples.

17) I respectfully submit that while this being the situation, it appears that in 2010, a series of amendments have been made to the Tamil Nadu Hindu Religious Institutions (Officers & Servants) Service Rules, 1964, expanding the definition of indoor employees and prescribing detailed qualifications. However, we were not aware of such introduction of new Rules by way of an amendment as they were not implemented against us. However, the Tamil Nadu Hindu Religious Institutions (Officers & Servants) Service Rules, 1964 has been replaced in its entirety and the Tamil Nadu Hindu Religious Institutions Employees (Conditions of Service) Rules, 2020 was introduced, bringing in drastic changes from the original 1964 Rules which, if implemented, would severely impinge the Rights of not only the Petitioners herein but the various Poosaris, Archakas and the like across the State. The relevant Rules and portions of the new 2020 Rules, how they affect our Rights and the illegalities and deficiencies in the same are pointed henceforth.

18) The aforesaid Rules were framed in exercise of the powers conferred under Section 116(2)(xxiii). While the said provision includes the words ‘Officers’ and ‘Servants’, it does not include the word ‘Archakas’ or ‘Poosaris’. Even otherwise it is submitted that the rule making power of the State in regard to service of Poosaris or Archakas is limited owing to the religious nature of the duty involved and the appointments being governed by traditions and usages connected with the religious institution and the denomination concerned. The rules create a structure of control by the Government, wherein, the minimum and maximum age, qualifications, interview method etc are prescribed by which both the scheme of the Act, as well as the rights of the Poosaris and various denominations under the Constitution.

19) I respectfully submit, I am advised to state that the Constitution in its preamble proclaims a secular State, non-interfering in matters of religion and Articles 25 and 26 protect the religious rights of both individuals and groups. It is further submitted that the 1959 Act, for what it is, does not contemplate any interference by the Government, except for the purposes of monitoring or in exceptional cases by interference for a restricted time period to remedy a situation. That also, only in the matter of administration of property of the institution concerned and not on religious affairs. It is submitted that even Section 55 of the 1959 Act, as it stands amended, contemplated appointment of Archakas or Poosaris by only the Trustees.

20) I respectfully submit I am advised to further state that the 1959 Act contemplates a ‘Fit Person’ to be appointed, pending appointment of the Trustees. However, it has become an unwritten practice that the officials of the respondent department always officiate as the Fit Person, and as submitted above, there have been no Trustees for a long time. It is submitted that this practice is essential to be taken note of while appreciating the scope of the rules.

21) I respectfully submit that except for the provisions relating to the qualifications, the Rules treat the Archakas & Pujaries (Poosaris) who perform religious functions and other servants of the temple/religious institution, identically, which is fraught with many illegalities. There are provisions for inter temple transfer and creation of cadres and promotions, which may apply for Non-Archaka or Non-Poosari employees, but cannot be extended to the religious servants as they are attached to the particular temple/religious institution and are not transferable.

22) I respectfully submit that we are serving the Temple as the deity is everything to us and not for salary and benefits. Hereditarily our lives being intrinsic to the deity and the temple, any benefit that such rules may seek to provide has no meaning to the petitioners and the restrictions and regulations are strangulating.

23) I respectfully submit that the Act defines an Employee and classifies 2 categories of employees, “Ulthurai (Indoor) Employee” and “Velithurai (Outdoor) Employee” in Section 2(e), (j) and (k). I respectfully submit that the Ulthurai Employee is defined to mean an employee whose duty mainly relates to the performance or rendering of assistance in the performance of Poojas, Rituals and other services to the deity, the recitation of Mantras, Vedas, prabandhams, Thevarams and other similar invocations and performance of duties connected with such performance or recitation in a religious institution. A Velithurai employee is defined to mean an employee other than an Ulthurai Employee. Rule 3 classifies the Employee Posts based on Senior Grade and Non-Senior Grade Temples and further as Outdoor Employees, Indoor Employees and Technical Staff. The Indoor Employees are further categorised into 37 categories in Senior Grade Temples and 17 in Non-Senior Grade Temples. There is a third category of Incorporated and Unincorporated Devaswom regarding which the petitioners herein are not concerned.

24) I respectfully submit that there are several categories of indoor employees including Archakal, Poosari, cook, various categories of musicians, etc. While we are sure that the Rules will affect all the indoor employees in various ways, our concern is primarily focused on the category of Archakas and pujaris, more specifically the poosaris as we are referred to, to whom the present Rules spell catastrophic blow to their rights and independence.

25) I respectfully submit that firstly, the allegiance we owe is to the deity and to a particular religious institution, our family and village is connected to the particular deity which we are propagating and worshipping and the petitioners are not servants of the State, nor can they be made into one. I respectfully submit that though the appointment of an Archaka or a Poosari may be considered a secular act, the function is purely religious. In the circumstances, the services of an Archaka or a Poosari cannot be made into a State service and the same would be contrary to the Constitution itself.

26) I respectfully submit that as submitted above, even the 1959 Act only contemplates the trustees in all cases to appoint employees, more specifically the Archakas or pujaris. Every religious institution is an independent institution, both under the Act as well as the scheme of things under the Constitution. The present rules by centralising the employment, seeks to practically extinguish the distinction between State and the temple.

27) I respectfully submit that it is a Constitutional guarantee that the traditions of every religion, sect thereof shall be preserved and such a right is spread across Articles 25, 26, 29 and 21. In the present scenario, such a right is connected with the worship in temples wherein worshippers have certain rights, the Archakas, Poosari’s and families connected to the deity and the temple have certain special rights. I respectfully submit that every religious institution in this State has a special significance and custom connected to it. They generally are understood as Sthala Puranas or may be a unique form of worship or a custom that a particular temple’s worship will be conducted by a particular family or a set of people. The Policy Note 2019-2020 of the Respondent Department, para 30 reads “Each Religious Institution and Charitable Endowment is a separate legal entity and is empowered to appoint its own employees.”

28) I respectfully submit that the custom of every temple in relation to ‘who will perform the poojas’, is based on the suitability of worship, to the nature and inclinations of the worshipper. Consequently, the temples in the State by custom, have Archakas or Poosaris generally falling under a particular denomination or family from times when such temples were consecrated. While the claim of Sivachariars and Battachariars are based on Agamas, to Shiva, Vishnu and Saktha temples, the predominant village deities are specifically worshipped through poosaris who come from every section of the society, though, a particular deity is worshipped through a Poosari, belonging to a particular community or denomination. In fact, contrary to popular perception, the persons who perform rituals in the temples come from all the communities not-withstanding social barriers, with the only caveat that there is no interchange or inter-mingling when it comes to various temples. It has been sanctioned in the Agamas for agamic temples and has been the custom in Poosari temples that only those who have been ordained by the scriptures or customs to enter and perform certain rituals, they alone can do so. Any other circumstances have been eschewed from practice willingly by the devoted public in reverence to the scriptures and customs. It is pertinent to state with utmost respect and reverence that even the Shankaracharya of Kanchi Mutt who visits the temple only worships from outside the sanctum sanctorum and does not perform any direct pooja, and prays only through the traditional poosaris of the temple. These customs are generally considered, as the preferences of the deities concerned.

29) I respectfully submit further that not all temples are worshipped by way of Agamas. We understand that apart from Agamas, there are Vedic and Tantric worship in temples, apart from customary form of worship, like in the petitioner’s temple. Though the kumbabishekam and consecration is done by the Agamic way by Sivachariars, their role ends with that and they do not interfere in the routine rituals of the temple, nor do we, the traditional Poosaris claim any right to perform the kumbabishekam rituals. These happen by way of reverence to custom and scriptures and mutual respect and goodwill with the Sivachariars and others. I respectfully submit that though some of the petitioners have attended courses in Patashalas, in our poojas, the Agamas have no relevance in the customary pooja done in our temple, so, in many of the village deities worship.

30) I respectfully submit that the Agama way of pooja is generally reserved to the Agamic temples where worship of Shiva, Vishnu and Sakthi primarily happens and rigorous training is undergone by the male members of the concerned families for many years for being competent to perform poojas. However, the poosaris like the petitioners herein are taught to worship the deity in a much simpler way, consisting of hymns wholly in vernacular, i.e., Tamil and customary practices by our own fathers and grandfathers who have been performing these rituals. I respectfully submit that neither our training or inclina-tions are suitable for performing worship in other temples, nor are the training and methods of worship suitable for our temple. The same logic would apply to every temple which is unique.

31) I respectfully submit that the rules framed by the respondent are oblivious to these customs, rights and intricacies and seeks to paint all in a singular brush. For example, the qualifications for Archakar, Poosari and Assistant Archakar are identical, as seen from the qualifications for Category 34 in Senior Grade Temples and Category 3 to 4 in Non-Senior Temples. I respectfully submit that the training may not be relevant to the duties we perform. Nor can anyone be entitled to get appointed merely by way of obtaining a certificate from an Agama School unless that person is suitable and is eligible to be appointed as per the customs and usages of the religious institutions.

32) I respectfully submit that as emphasised above, the petitioners are attached to the particular deity and the temple and cannot be treated as general servants of the department. Provisions such as Rule 17 empowering transfer and postings of employees cannot be applied to poosaris like the petitioners. The same is contrary to the provisions of the 1959 Act as well as the Fundamental Rights of the petitioners. The petitioners have the unique custom of rotation system amongst themselves and treat each other as equals, there is no seniority or such perceptions amongst ourselves. The institution of a system like a Government Office is not conducive for an institution like ours and, as it interferes with denominational practices, is in contravention of Articles 25 and 26.

33) I further respectfully submit that while the minimum age requirement as prescribed under Rule 7 of 18 years, we understand, is, in the context of legal capacity, there is no rationale to fix the maximum age for entering the services of the temple at 35. It is submitted that generally when the previous generation is serving, the next generation do not enter the services as per custom and as long as physical fitness is there for the purpose of the discharge of his responsibilities as a Poosari, it would be arbitrary to prescribe any age limit for entry or exit. It is further submitted that as the petitioners or any such poosaris are not salaried, there is no burden, either on the Department or on the Temple in this regard.
34) I respectfully submit further that Rule 31, prescribing retirement age of 60 years is contrary to Article 14 and 19 of the Constitution. It is submitted that being a non-salaried service, there is no requirement of fixation of age of retirement on financial considerations. There is no age limit for lawmakers, and as long as a person has physical and mental fitness, he ought to be permitted to discharge his functions.

35) I respectfully submit, another area of intrusion is in the recruitment, wherein, apart from the trustees, various Government Authorities also become part of the process. Rule 9 which provides for the procedure of recruitment prescribes that the Executive Authority will do the needful. The Executive Authority is defined under Rule 2(g) to include, apart from the trustee, a Fit Person or the Executive Officer. The committee interviewing the candidates shall consist of the Trustee or the Fit Person or the Executive Officer, if he is the fit person, the Division Inspector of the HR&CE, the Executive Officer, two experts in the subject and a person nominated by the Commissioner or the Joint Commissioner, as applicable. The appointment, as provided under the Act, is made only by the Trustee, who shall do so in accordance with Section 28. It is submitted that no other authority in the State can interfere in the process by directly participating in it. It is submitted that on one part it is contrary to the Act, on the other, it suffers from the vice of the State entering into the religious institutions and making appointments which is impermissible under our Constitution. It is submitted that I am advised to state that the law permits, at best, as on date, the prescription of qualification for appointment, in so far as it does not contravene the usages, customs or Agamas and it does not permit the State itself to make the appointments. The present Rules however seek to do exactly that by making the employees of the State appoint poosaris and Archakas, which is a move fraught with danger and a direct interference into religious practice. It is further submitted that, while the trustees would be legally competent and experts, meritoriously competent, the employees of the State do not have any competence either in law or on merit to decide on the appointment of Archakas or poosaris. The inclusion, and providing a majority to State Officials in the interview as per Rule 9(d), is manifestly arbitrary and is in contravention of both the Act as well as the Constitution. Further, the inclusion of State authorities into the scheme of things will give scope for interference in religious matters and political interference in the issues of the Temple.

36) I respectfully submit that these Rules now seek to institutionalize an illegality, which we have come to learn, is of two aspects; namely, the perpetual presence of the Fit Person, officiated by a State/Department Official and the interference in religious matters by the Executive Officers. I respectfully submit that the 1959 Act provides for a scheme of administration of a temple centred around the exercise of powers by the trustee subject to supervision by the Government Department Officials. Section 28 prescribes the care required of trustee and his powers. Among several other powers such as utilization of funds, the trustee also is endowed with the power of appointment of servants and office holders in religious institutions. It is submitted that in many cases, schemes are framed for the administration by the trustees and there are several rules and regulations made under the 1959 Act which guide not only the trustees, but also the Officials under the HR&CE Act. Section 25A provides for the qualification of trustees and Section 26 provides for disqualification. Section 47 provides for trustees and their number and term of offices, in cases where there are no hereditary trustees. Pending the constitution of the Board of Trustees, the authorities under the Act are empowered to appoint a fit person to perform the functions of the Board of Trustees. While, to what extent the fit person can exercise the function of the trustees is a point of concern, the appointment of a Government Official as a fit person and perennial non-constitution of a Board of Trustees has led to the scenario where many temples have become Government Temples for all practical purposes, including the present one. I respectfully submit that while even the Executive Officer can only perform under Section 45, duties assigned in the management of properties of the religious institution, the State by appointing the Executive Officer or any Departmental Officer as a fit person has clearly perpetrated a fraud on the provisions of the 1959 Act. It is submitted that this illegal scheme of things is sought to be institutionalised as it is clear from the definition of the term ‘Executive Authority’ in Rule 2(g) as well as the language of the other provisions such as Rule 9, Rule 17, etc. It is further submitted that the inclusion of Executive Officer in the scheme of things is contrary to the Role and powers assigned to him under the HR&CE Act, 1959. In the circumstances, on these aspects of the matter, we are constrained to challenge the Constitutional validity of the Tamil Nadu Hindu Religious Institutions Employees (Conditions of Service) Rules, 2020.

37) I further respectfully submit that it is in the last few weeks, owing to the development of fresh appointment of Archakas in various temples that we came to learn about these Rules and on further enquiry and information about the illegal manner in which the HR&CE Department has been running the temple directly. As persons attached to the temple and interested in it, it is also our conscientious reflection that continuation of the scheme of things is not healthy for the temple’s administration. It is our fervent plea and belief that the temple has to be administered by the devotees of the temple from the locality by the constitution of a board of trustees and the role of the Executive Officer should be restricted and time bound, as we have come to learn, is the requirement of Law.

38) I respectfully submit that from the year 2011 there have been no trustees and the 4th respondent official has been officiating as a fit person. it is submitted that as per the Conditions for Appointment of Executive Officers Rules, 2015, it is very clear that an Executive Officer cannot have a tenure for more than 5 years. I respectfully submit that it is apparent that it is the illegal practices in the manner of having officials in the temple is the core problem behind, as well as encompassed in the Rules being challenged, it has become necessary to seek certain reliefs in regard to constitution of Trust Board and the removal of the Executive Officer from the temple as both the presence of Executive Officer and the non-appointment of trustees is contrary to Law.

39) I respectfully submit that I am advised to state that though the main challenge is in respect of Rule 2 (c), Rule 2 (g), Rule 4, Rule 7 (a), Rule 9, Rules 11 to 15, Rule 17, Rule 20, and 31 and in respect of Archakas and Pujaris alone, as they are not severable from the remaining Rules relating to other Indoor servants or the Outdoor Servants, the Rules will have to be set aside as a whole.

40) In the circumstances, having no other alternative or efficacious remedy, the petitioners are preferring these Writ Petitions for
(i) a Writ of Declaration, declaring that the Tamil Nadu Hindu Religious Institutions Employees (Conditions of Service) Rules, 2020 is Ultra Vires the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 and in violation of Part III of the Constitution of India.
(ii) a Writ of Mandamus forbearing the Respondents from continuing to place an Executive Officer in the Shri Madurakaliamman Temple, Siruvachur.
(iii) a Writ of Mandamus directing the Respondents to appoint Trustees to Shri Madurakaliamman Temple, Siruvachur, qualified as per Section 25A of the Tamil Nadu Hindu Religious & Charitable Endowments Act, 1959.

on the following among other Grounds.

GROUNDS
A) The Constitution of India postulates a Secular State where the State and its machinery shall not interfere with religious matters and shall maintain separation between religion and State. Article 25 (2) only permits regulation of Non-religious matters and the same cannot translate to controlling of religious institutions. It is submitted, as elaborated in the further Grounds, the effect of the Rules impugned, as well as the actions and inactions of the Respondent department, in conjunction, is that, this Constitutional guarantee is breached.
B) The so- called secular aspects associated with the Hindu Religious practice, is intrinsically connected with the religion and every aspect in relation to Temple administration becomes a religious function. Therefore the State cannot enter and deal with the administration of the temple directly.

C) The entire scheme of current method of functioning of the respondent Department by administering temples through Executive Officers & Government Employee Fit Persons, by deliberate Non-appointment of Trustees and seeking to legitimizing the same by way of the Rules, is contrary to the Provisions of the 1959 Act as well as the Constitution.

D) The provisions of the Tamil Nadu Hindu Religious Institutions Employees (Conditions of Service) Rules, 2020 are Ultra Vires the 1959 Act, by introducing powers to officials beyond that which is conferred in the Parent Statue and by prescribing procedures, contrary to the Parent Statute.

E) Section 55 of the 1959 Act makes it clear that only the Trustees can appoint servants and office holders more specifically Archakas or poosaris and therefore there cannot be any provision contemplating exercise of such power by any other authority under the Act, including the Executive Officer or the Government Employee officiating Fit Person.

F) Section 45 of the 1959 Act restricts the role of the Executive Officer only to that relating to administration of properties. In the circumstances, he does not have any jurisdiction to perform other roles supplementing the Trustee either in his own office or officiating as a Fit person as contemplated in the rules.

G) The very act of, the Executive Officer or the Assistant Commissioner or other officials of the Respondent Department being made to officiate as a Fit Person by non-appointment of Trustees, is a fraud on the provisions of the 1959 Act and incorporating it, as if it is a permanent arrangement, in the Rules, is manifestly arbitrary, apart from being Ultra Vires the provisions and scheme of the 1959 Act.

H) Rule 2 (c) – Appointing Authority is defined to mean not only the trustee but also the fit person and Rule 2 (g) – Executive Authority is defined to mean not only the trustee, but also the Fit Person and the Executive Officer. The inclusion of the terms ‘Fit Person’ and ‘Executive Officer’ to perform the role exclusively reserved to the trustees under the Act, especially when such officers are otherwise not empowered, are Ultra Vires provisions of HR&CE Act, 1959.

I) The inclusion of Executive Officers under the Definition of ‘Executive Authority’ and empowering him to prepare the Schedule of Establishment, perform the role of recruiting, maintenance of discipline, etc. are in contravention of this restricted role as provided under Proviso to Section 45 (2) of the Act.

J) The ‘Fit Person’ is a temporary arrangement pending appointment of Trustees and is not a replacement of the trustee. As such, any appointments of office holders and servants can await the constitution of the Board of Trustees in normal course and Fit Person is only required to step in for a temporary, short period. The provisions of Rule 9(d) clearly chart a course for a permanent scenario of having a Fit Person, which is neither contemplated nor permissible under the Statute.

K) Further, the said provision reads “where the Executive Officer himself is the Fit Person, or the Inspector is the Fit Person” is an introduction of an illegal practice within the Rules, which is nowhere contemplated in the Act and in fact, is clearly contradictory to it.

L) Rule 9 (d) even otherwise, is contravening the provisions of the Act in so far as it permits anyone other than the Trustee to initiate and make appointments, either by way of the expanded definition of ‘Executive Authority’ as defined under Rule 2 (g) or by way of express presence in the Interview Committee, such as Executive Officers, Inspectors, Nominee of the Commissioner, etc.

M) The composition of the Interview Committee under Rule 9(d) comprises a Trustee, if present, a Division Inspector of HR&CE, the Executive Officer (or in his absence a Division Inspector), two experts and a Nominee of the Commissioner or Joint Commissioner. First, a trustee is made into a meek minority. Secondly, the majority are Officials of the Department or Nominees of the Commissioner. The appointment is therefore effectively made by the Officials of the Department which is directly in contravention of Section 55 of the 1959 Act.

N) The Officials of the Department are neither legally competent, nor on merits, to be included in the Interview Panel and placing of the Officials of the Department in the Interview Panel is clearly an arbitrary exercise of power.

O) Rule 9(d)(2) makes it clear that there are only two scenarios. Where there are Executive Officers and in absence of Executive Officers, a Divisional Inspector of HR&CE, is part of the Interview committee. This makes it clear that even temples which do not come in the administration of the HR&CE, the appointments will be made only by the Interview Committee and the Trustees will be mere puppets.
P) The Hon’ble Madras High Court in the case of S.J. Balaji V. The Commissioner, HR & CE, 2001 (3) CTC 529, has upheld the powers of the Trustee to appoint and prior concurrence even from the Commissioner cannot be mandated. The Rule falls foul of the dictum, having made the decision of Trustee subject to the Majority of the Officials of the HR & CE Department.

Q) Various provisions relating to Seniority, Promotion, Probation, Preparation of Panels from Rules 11 to 15 clearly interfere with the existing rights of the petitioners to discharge their duties as per the custom and usages of the concerned religious institutions. The petitioners are not salaried employees of the temple and belong to the family, a denomination, of poosaris attached to the temple and such provisions are not in consonance with the customs of the temple and it goes without saying that it would be contrary to the unique custom of every temple in the matter of appointment of Archakas or poosaris.

R) Rule 17, empowering transfer of employees attached to religious institutions is again in contravention of the rights of the Archakas and poosaris attached to a particular institution. The role of an Archaka or Poosari is performing rituals in a particular temple and is used to the customs and rituals unique to the institution. Their appointment is by a Trustee of an institution, which is an independent entity of its own and it is not permissible in law for anyone to have the power to transfer an Archaka from one temple to another. The Archaka or Poosari serves only the temple and not the Department.
S) No authority under the 1959 Act has any power to transfer an employee of a temple to another, especially in the background of each religious institution being an independent entity. In such a scenario introduction of such a power in the rules is arbitrary and ultra vires the Act.
T) Except for the Annexure describing the qualification, the Rules make no distinction between the ‘indoor employees’ and ‘outdoor employees’ which amounts to treating differently placed persons, i.e. unequals, equally and therefore contrary to Article 14. Whereas, Archakars and Poosaris, who are defined under indoor employees, have roles defined by customs and usages, the outdoor employees’ roles are wholly secular and therefore the service conditions etc cannot be equated between the two.

U) The upper age for recruitment at 35, as per Rule 7(a) is arbitrary and has no rationale. It is submitted that as long as a person has physical fitness requisite for performance of duties, he would be entitled to perform his role.
V) Rule 31 of the Rules prescribing retirement age of 60, is also ultra vires the Act, as well as in contravention of Article 14, 19 & 21. There is no rationale behind the introduction of such an age bar in the nature of the religious duties he is to perform.

W) The qualification for all the Archakas, battachariars, poosaris, etc. in Annexures have been identically provided and there is no consideration of the relevance of the same to the roles that they are required to perform. The Rules do not recognize the traditional and customary way of initiation and training into pooja procedures and it is not open to the State to do away with such customs which are protected under Article 25 and 26.

X) The Rules completely exclude the custom and usage of every religious institution in the matter of appointment of Archakars or Poosaris. This is in direct contravention of the assurance given by the then Advocate General of the State before the Constitutional Bench before the Supreme Court in the Seshammal Case that Appointments under Section 55 have to be done in accordance with the Agamas and usages of the religious institutions and the trustees are bound by Section 28 of the Act.

Y) The entire rules being in contravention of the customs and usages of religious institutions is clearly in contravention of Section 28 as well as Section 107 of the 1959 Act.
Z) Even the Commissioner, under whose superintendence, the institutions are, is mandated to conform with the forms and usages of the institutions, while discharging his functions as per Section 25.

AA) There are several religious institutions in the State that are protected under Article 26 and so are their practices. The rules under challenge without any sensitivity towards such custom or practice, deal with such appointment of archakars and poosaris, as a pure secular State appointment and the same is clearly contrary to Article 25 and 26 of the Constitution.

BB) The effect of introduction of a generalised mode of recruitment, transfer of archakars or poosaris, etc. will lead to decline in the propagation and practice of customs unique to the temple and overall dilution of religious practices. The effect of the Rules will certainly contravene not only Article 25 and 26 but also rights to preserve culture under Article 29.

CC) When every section of citizens are entitled to preserve their distinct language, script and culture and methods to preserve the same, including by way of attachment to a religious institution and passing down of knowledge through family or through the denomination is part of the right under Article 29(1).

DD) Even in case of a public office, Article 16(5) preserves the practice of appointment on the basis of religion or denomination. The office of a poosari or archaka is a private avocation and not the services of the State and therefore, such customary practices of hereditary nature, as well as identification by way of denomination is perfectly Constitutionally permissible and is within the Right to religion under Article 25 and denominational right under Article 26 of the Constitution.

EE) The necessity of an Archaka or poosari being from the religious denomination assigned to a temple by agamas or customs is an essential religious practice, intrinsic to temple worship and recommended against the scriptures also.

FF) The qualification to become an archaka or poosari is not merely to undergo training, but also to be in adherence and on following a particular doctrine as well as discipline. Even for State purposes, caste is recognised as a permissible criteria with plus-factors. In the circumstances, the custom of religious institutions in maintaining strict rigours of the denomination from which a poosari or archaka are taken is to be maintained.

GG) The traditional archakars and poosaris are not merely servants of the religious institutions, but come from families attached to the deity concerned. Tradition believes that such persons and families are preferred by the deity itself to perform the poojas and rituals. Such matters, apart from being essential religious practices, are core beliefs attached to the religious institutions concerned and cannot be negated by the State, nor be tested before a Court of Law.

HH) Lives of persons associated with the temple such as hereditary trustees, hereditary poosaris, etc. have their lives intrinsically connected with the deities and temples and therefore, such Rule becomes part of their Right to Life and Personal Liberty under Article 21.

II) As the Poosari and Archakas are traditionally entitled to contributions from the plate, and is their occupation for most and also source of living, any Law restricting the same will be violative of Article 19(1)(g) as well as Article 21.

JJ) The Executive Officer is a temporary arrangement as held in the case of Subramanian Swamy Vs. State of Tamil Nadu [(2014) 5 SCC 75] and such an appointment cannot continue perpetually. Even the 2015 Rules specify only 5 years as the maximum period for the presence of an Executive Officer. Therefore, the continued presence of an Executive Officer without valid orders is contrary to the Orders of the Supreme Court, the provisions of the HR&CE Act and the Rules made thereunder.

KK) When the 1959 Act contemplates all the functions to be performed by the Trustees, to not appoint them and instead run the temple through a Fit Person, who in turn is a Department Official himself is clearly in contravention of the provisions of the HR&CE Act. The legitimization of such an illegality by way of the Rules necessitates the negation of such a practice at the first instance.

LL) The perpetual presence of the Government Officials in the direct administration of the Religious Institutions, directly contravenes Article 25 and 26 of the Constitution apart from being an anathema to the secular values propagated by the Constitution.

MM) Article 25(2) only saves Law regulating secular, financial and economic aspects associated with Religious practices and does not permit running of temples by State Authorities.

NN) While as a Fit Person, when a Government Employee officiates, he takes decisions which are religious in nature also. In fact, the trustee is the only authority under the 1959 Act who has power to take decisions on religious matters also and such power cannot be exercised by a State Employee who is expected to be functioning for a secular Government.

OO) The conscious action on the part of the Respondent Department in not appointing Trustees, employing its own official as a Fit Person to run the temple and not following its own regulations under the 2015 Rules is an arbitrary exercise as well abdication of power is violative of Article 14 also.

38) I respectfully submit that we are hereby challenging Rule 2 (c), Rule 2 (g), Rule 4, Rule 7 (a), Rule 9, Rules 11 to 15, Rule 17, Rule 20, Rule 31 and every such provision of the Rules, which by usage of the term “Executive Authority” permits persons other than the trustees to exercise powers and the qualifications prescribed for indoor servants in the Annexures to the Rules, as in contravention of the provisions of Hindu Religious & Charitable Endowments Act, 1959 and of Articles 14, 19, 21, 25, 26 and 29 of the Constitution of India. It is submitted that if these provisions are struck down, the rest of the Rules cannot be severed as the core and crux is taken away and therefore, the Rules as a whole are liable to be declared as unconstitutional.

39) I respectfully submit that the petitioners have a fair chance of success and the present Writ petition and pending disposal of the same, if the Rules are implemented, serious prejudice of such nature which cannot be reversed will be caused. It is just and necessary that the Rules are Stayed. As so far as the Trustees can continue to recruit employees as it has happened, there is no prejudice that is caused to the Government or anyone in this matter. Therefore, the balance of convenience is also in favour of granting an Order of Stay.

40) In the circumstances, it is prayed that this Hon’ble Court may be pleased to pass an Order of Interim Stay, against the implementation of the Tamil Nadu Hindu Religious Institutions Employees (Conditions of Service) Rules, 2020 pending disposal of the above Writ Petition and thus render Justice.

41) I respectfully submit that since we are not in possession of the certified copy of the Tamil Nadu Hindu Religious Institutions Employees (Conditions of Service) Rules, 2020, the online copy of the same is being filed before this Hon’ble Court.

42) In the circumstances, it is prayed that this Hon’ble Court may be pleased to Dispense with the production of the Original of the Tamil Nadu Hindu Religious Institutions Employees (Conditions of Service) Rules, 2020 and thus render Justice.

43) I further respectfully submit that the continuation of a scenario where no Trustees are appointed during the pendency of the Writ Petition, serves no purpose. In fact the respondent Department is obligated to have made such appointments already. In the circumstances, it is just and necessary that Interim Direction is made to the 2nd Respondent to immediately take steps for appointing Trustees. To make such appointments, true to the purpose of the Act, it is necessary to follow the qualification prescribed under Section 25A, and to eschew the appointment of persons affiliated to any political parties so that there is no political interference in the temple.

44) In the circumstances it is prayed that this Hon’ble Court may be pleased to pass an Order of Interim Direction, directing the 2nd Respondent to initiate forthwith the process for appointment of trustees in accordance with Section 25A and the other provisions of the Hindu Religious and Charitable Endowments Act, 1959 pending disposal of the above Writ Petition and thus render Justice.

45) In the circumstances it is prayed that this Hon’ble Court may be pleased to issue a Writ of Declaration or any other appropriate writ order or direction, declaring that the Tamil Nadu Hindu Religious Institutions Employees (Conditions of Service) Rules, 2020 passed vide G.O. Ms No. 114, Tourism, Culture and Religious Endowments (RE4-2), dated 03.09.2020 is Ultra Vires the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of 1959) and in violation of Part III of the Constitution of India and pass any such further or other orders as this Hon’ble Court may deem fit in the facts and circumstances of the case and thus render Justice.

46) In the circumstances it is prayed that this Hon’ble Court may be pleased to issue a Writ of Mandamus or any other appropriate Writ, Order of Direction forbearing the Respondents from continuing to place an Executive Officer in the Sri Madurakaliamman Temple, Siruvachur, in contravention of the Conditions for Appointment of Executive Rules, 2015, (G.O. Ms. No. 260, Tourism, Culture and Religious Endowments (RE4-2), dated 6.11.2015) and pass any such further or other Order as this Hon’ble Court may deem fit in facts and circumstances of the case and thus render Justice.

47) In the circumstances it is prayed that this Hon’ble Court may be pleased to issue a Writ of Mandamus or any other Appropriate Writ directing the Respondents to appoint Trustees to Shri Madurakaliamman Temple, Siruvachur, qualified as per Section 25A and in accordance with the provisions of the Tamil Nadu Hindu Religious & Charitable Endowments Act, 1959 and pass any such further or other Order as this Hon’ble Court may deem fit in facts and circumstances of the case and thus render Justice.

Solemnly Affirmed at Chennai on this Before me,
the day of August, 2021
having signed in my presence. Advocate, Chennai.

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