Arulmigu Vaithianathaswamy Devasthanam v. The Government of Tamil Nadu

5.Sri Vithianathaswamy Thirukkoil Employees' Welfare Association, Rep. By its President, Rajagopal, No.1/A, South Madavilagam Vaitheeswarankoil, Sirkazhi Taluk, Nagapattinam District. ... Respondents in both Writ PetitionsPrayer in W.P.No.13918 of 2012:- Petition filed under Article 226of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records of the 3rd respondent relatingto his proceeding in Na.Ka.1098/2012/Aa2 dated 24.04.2012 and alsohis consequential order dated 03.05.2012 and to quash the same andto further direct the 3rd respondent to approve the proposal dated07.02.2012 sent by the petitioner.Prayer in W.P.No.13919 of 2012:- Petition filed under Article 226of the Constitution of India praying to issue a Writ of Certioraricalling for the records of the 1st respondent relating toGovernment Order in G.O.(Nilai) Ms.No.257, Tamil Development,Culture, Religious Endowments and Information Department,Government of Tamilnadu dated 30.06.2010 and to quash the same.For Petitioner in bothWrit Petitions:Mr.R.Krishnamoorthy,Senior Counsel forMr.S.SountharFor Respondents in bothWrit Petitions:Mr.S.Kandasamy, SpecialGovernment Pleader (HR&CE Dept.) for RR1 to 3:Mr.S.Doraisamy for R4:Mr.T.L.Rammohan, SeniorCounsel for Mr.A.V.Arunfor R5COMMON ORDERSince almost common issues are involved in these two writpetitions and the parties are also same, both the writ petitionswere heard together and they are disposed of by means of thiscommon order.2. This is a litigation relating to the pay and emoluments ofthe employees of the temple in question. On 06.01.2012, whiledisposing of the writ petition in W.P.No.1465 of 2011 relating tothe same issue, this court made an opening remark that the same wasthe third round of litigation between the priest and the employeeson one hand and Arulmigu Vaithianathaswamy Devasthanam on theother hand over the fixation of pay and emoluments payable to theofficers and servants of the petitioner temple. Therefore, https://hcservices.ecourts.gov.in/hcservices/ undoubtedly, this is the fourth round of litigation on the sameissue. This litigation has got its own long history which may besummarised as under.3. The petitioner is a temple. Sri-la-Sri Gurumaha Sannithanamof Dharmapuram Adheenam is the Hereditary Trustee of the saidtemple. The petitioner/temple is governed by The Tamil Nadu HinduReligious and Charitable Endowments Act, 1959 [hereinafter referredto as "the HR & CE Act"]. As of now, there are roughly about 162employees working in the petitioner temple. In respect of the payand emoluments to be paid to the employees, there has been a longstanding dispute. In the previous round of litigation, theproceedings of the Commissioner, Department of The Hindu Religiousand Charitable Endowments in Rc.No.64864/2010/H3, dated 29.11.2010and the proceedings of the Joint Commissioner, Hindu Religious andCharitable Endowments, Mayiladuthurai in Rc.No.7925/2009/B2 dated18.01.2011 were under challenge. Those two proceedings came to bepassed in pursuance of the order passed by this Court inW.P.No.21916 of 2009 wherein this court, by order dated 30.09.2010,directed the respondents viz., The Commissioner and the JointCommissioner, Hindu Religious and Charitable Endowments to considerthe representation of one Mr.D.M.Vaithiyanatha Gurukkal and fortyothers who were employees of the petitioner temple wherein they hadrequested to consider their grievance in respect of fixation of payand emoluments in the light of G.O.Ms.No.257, Tamil Development,Culture, Hindu Religious Endowments and Information Department,dated 30.06.2010. The 1st respondent by his proceedings inRc.No.64864/2010/H3, dated 29.11.2010 directed the petitionerherein to fix the pay and emoluments of the employees in terms ofG.O.Ms.No.257 cited supra. Accordingly, the 2nd respondent hereinpassed a consequential order. Those two orders were earlierchallenged in W.P.No.1465 of 2011. Finally, a learned single Judgeof this Court, on 06.01.2012, while disposing the writ petition inpara 23 of the order has issued the following direction:-"23.In the result, the Writ Petition isdisposed of, with the following directions:(i) The petitioner is directed to submit itsproposal to the respondent No.2 by fixing thesalary of the employees. While doing so, it isopen to the petitioner to contend that it is asenior grade Temple, with relevant materials. Thepetitioner can also place the materials by relyingupon the report of the learned Commissioner apartfrom giving its objections to it.(ii) The percentage ratio fixed for differentgrades of Temples in various Government Orders bythe Government is hereby upheld in the light ofthe discussions made above. However, it is madeclear that any salary to be fixed for theemployees cannot go beyond the percentage ratioand should be in accordance with Rule 5-A of theTamil Nadu Hindu Religious Institutions (Officers https://hcservices.ecourts.gov.in/hcservices/ and Servants) Service Rules, 1964.(iii) In so far as the contentions raised bythe petitioner before the learned Commissioner tothe effect that the gold received is a capitalreceipt and therefore, the same cannot be includedin the income, the same is rejected as this Courtdoes not find any difference between thecontribution made by the general public in cash orkind. However, the receipt of the gold and itsconversion should be treated as income of thepetitioner corresponding to the fasli year alone.(iv) The contention of the petitioner beforethe learned Commissioner that the income will haveto be arrived at only after deducting theexpenditure cannot be accepted except to theextent of the positive finding given by thelearned Commissioner in his report. It is tritelaw that income is different from expenditure.Hence, it is not open to the petitioner to contendthat it is entitled to spend all the income andwhatever that is left alone should be treated asincome for the purpose of fixing the salary.(v) While considering the proposal to besubmitted by the petitioner, the second respondentis directed to consider the entire materialsincluding the objections raised before the learnedCommissioner. The second respondent will have toconsider the nature of grade that would beapplicable in the case of the petitioner by takingnote of the relevant materials.(vi) The petitioner shall submit theproposal, within a period of four (4) weeks fromthe date of receipt of a copy of this order.(vii) The second respondent while consideringthe proposal to be submitted by the petitionerwill have to decide the same in accordance withlaw, the directions issued by this Court and bytaking into consideration of the report of thelearned Commissioner. The second respondent willhave to fix the salary on the facts available.(viii) The second respondent is directed topass appropriate orders, within a period of eight(8) weeks from the date of receipt of the proposalfrom the petitioner. In the event of making anyalterations, omissions or additions in theproposals to be submitted by the petitioner, therespondent No.2 has to issue a notice to thepetitioner before doing so. Till the entire https://hcservices.ecourts.gov.in/hcservices/ exercise is over, the interim arrangement enteredinto in pursuant to the orders of this Court willhave to be continued by the petitioner."However, in the said writ petition, since the Government was not aparty, the validity of G.O.Ms.No.257 cited supra was not gone intoby this Court. In pursuance of the above direction issued by thisCourt, the petitioner temple, thereafter submitted a proposal on07.02.2012 to the 3rd respondent herein. Having received the same,the 3rd respondent called for certain further explanations whichalso the petitioner temple complied with. Finally, the 3rdrespondent by his proceedings in Na.Ka.No.1098/2012/B2 dated03.05.2012 issued an order fixing the pay and emoluments to be paidto the employees of the temple. The said order is under challengein W.P.No.13918 of 2012. In W.P.No.13919 of 2012, the petitionertemple challenges the Government Order in G.O.Ms.No.257 dated30.06.2010.4. Let me now, at the first, consider the validity ofG.O.Ms.257, Tamil Development, Culture, Religious CharitableEndowments and Information Department, dated 30.06.2010 which isunder challenge in W.P.No.13919 of 2012.5. The crux of G.O.Ms.No.257 cited supra is that the employeesworking in the temples, which are under the control of theDepartment of The Hindu Religious and Charitable Endowments [inshort, HR & CE Department] in the state of Tamil Nadu, shall bepaid pay and emoluments on par with the Government servants basedon the recommendations of the VI Pay Commission. According to thepetitioner temple, in respect of temples which are administered bythe hereditary trustees, the Government has no such power to issueany direction fixing the pay and emoluments of the officers andservants of the said temples. 6. In this regard, Mr.R.Krishnamoorthy, the learned seniorcounsel appearing for the petitioner temple would take me throughSection 55 of the HR & CE Act which reads thus:-"55. Appointment of office-holders andservants in religious institutions. - (1)Vacancies, whether permanent or temporary,among the office-holders or servants of areligious institution shall be filed up by thetrustee in all cases.Explanation.- The Expression "office-holders or servants" shall include archakas andpujaries.(2) No person shall be entitled toappointment to any vacancy referred to in sub-section (1) merely on the ground that he isnext in the line of succession to the lastholder of the office.(3) Omitted(4) Any person aggrieved by an order of https://hcservices.ecourts.gov.in/hcservices/ the trustee under sub-section (1) may, withinone month from the date of the receipt of theorder by him, appeal against the order to theJoint Commissioner or the Deputy Commissioner."7. The learned senior counsel would submit that as has beenclearly laid down in Section 55 of the HR & CE Act, it is theabsolute power of the trustees in all cases to fill up thevacancies of the office-holders and servants, either permanent ortemporary. Thus, according to the learned senior counsel, fixingthe number of vacancies is absolutely within the domain of thetrustees. 8. Nextly, the learned senior counsel would refer to Rule 14of the Tamil Nadu Hindu Religious Institutions (Officers andServants) Rules, 1964 [hereinafter referred to as "the ServiceRules"]. Rule 14 of the said Rules read thus:-"14. Pay and Emoluments of Officers andservants.- (1) The pay and emoluments in cashand in kind, of each officer or servant shallbe in accordance with a schedule orestablishment framed by the trustee or trusteesand approved by the Assistant Commissioner inthe case of institution under his jurisdictionand by the Joint or Deputy Commissioner in thecase of to other institution. The Trustee ortrustees shall not alter the schedule withoutthe previous permission of the AssistantCommissioner of the Joint or DeputyCommissioner as the case may be;Provided that this rule shall not apply toMaths and specific endowments attached toMaths.(2) Travelling Allowance and DailyAllowance payable for the journeys performed bythe officers and servants shall be inaccordance, with the the Tamil Nadu TravellingAllowance Rules for the time being in force.The Executive Officer and in the absence of anysuch officer, the trustee or the chairman ofthe Board of Trustees, as the case may be ,shall be the controlling and countersigningauthority in respect of their TravellingAllowance Bills.(3) Advance pay shall not be paid to anyofficer and servant except with the previouspermission of the Assistant Commissioner or theJoint, or Deputy Commissioner, as the case maybe."9. Referring to the above, learned senior counsel would submitthat the pay and emoluments of the officers and servants of the https://hcservices.ecourts.gov.in/hcservices/ petitioner temple shall be in accordance with the schedule orestablishment framed by the trustee, however, subject to theapproval of the Joint Commissioner. Apart from Rule 14, accordingto the learned senior counsel, there is no other provision in theHR & CE Act or in the Rules relating to fixation of Pay andEmoluments of the office-holder and servants of the temple. [ Thelearned senior counsel would however refer to Section 86 of the HR& CE Act for a different purpose].10. The learned senior counsel would lastly submit thatG.O.Ms.No.257 has been issued by the Government making itobligatory on the part of the petitioner temple to fix the pay andemoluments in consonance with the recommendations of VI PayCommission, which according to the learned senior counsel, iswholly without jurisdiction and, therefore, the said GovernmentOrder is liable to be quashed. 11. But, the learned Special Government Pleader appearing forthe respondents 1 to 3 would stoutly oppose this writ petition.According to him, the power of the Government flows from Article162 of The Constitution of India to issue administrativeinstruction to the trustees in respect of fixation of pay andemoluments of the office-holders and servants of the temples. Hewould also refer to Section 116 of the HR & CE Act in support ofhis contention. 12. The learned Special Government Pleader would furthersubmit that as per Section 86 of the HR & CE Act, the trustees arebound to submit budget for every year which includes pay andemoluments of the office-holders and servants of the temples. Itis his further contention that as per Section 86 (3) of the HR &CE Act, the Joint Commissioner has got power to make modificationsin the same and to approve the budget. He would, however, fairlysubmit that before making any such modification, alteration oromission, etc., the Joint Commissioner should afford sufficientopportunity to the trustees. 13. The learned Special Government Pleader would nextly submitthat since the Government Order in G.O.Ms.No.257 has been issued incomplement of the statutory provision and statutory rule, the samecannot be found fault with in any manner so as to interfere withthe same. He would further submit that Rule 5A has been newlyintroduced, according to which, the pay and emoluments of theoffice-holders and servants of the temples are to be regulated bymeans of a schedule. He would, however, submit that the scheduleprepared by the trustee is to be approved by the JointCommissioner. If once the same is approved, then, it will be inforce and the trustee will not be at liberty to make any alterationwithout the approval of the Joint Commissioner. Here in this case,according to the learned Special Government Pleader, the GovernmentOrder, which is mandatory in nature, issued in exercise of theexecutive power of the Government conferred in Article 162 of TheConstitution, binds the respondents and, therefore, by havingregard to the said Government Order and the income of the temple, https://hcservices.ecourts.gov.in/hcservices/ the impugned order [impugned in W.P.No.13918 of 2012] came to bepassed. He would also submit that this order came to be passed inaccordance with the direction issued by this Court.14. The learned counsel appearing for the 4th respondent wouldadopt the arguments of the learned Special Government Pleader.15. The learned counsel appearing for the 5th respondent wouldsupplement the arguments advanced by the learned Special GovernmentPleader. But, he would also submit that in exercise of the powerconferred under Article 162 of The Constitution of India, theGovernment has issued G.O.Ms.No.257 and, therefore, it cannot besaid that it is wholly without jurisdiction. He would furthersubmit that G.O.Ms.257 is not imperative and it is only in thenature of guideline issued by the Government in the larger interestof servants of the temples. He would lastly submit that the orderof the 3rd respondent impugned in W.P.No.13918 of 2012 has been madeas per the direction issued by this Court in the earlier round oflitigation and further, even if G.O.Ms.No.257 is quashed, theimpugned order of the 3rd respondent will survive, as it isindependent. Therefore, according to the learned counsel, both thewrit petitions are liable to be quashed.16. I have considered the above submissions and also perusedthe records carefully.17. Section 55 of the HR & CE Act speaks of appointment ofoffice-holders and servants in religious institutions. A readingof the said provision, as extracted above, would go a long way toshow that the trustee of a temple has been given absolute power tomake appointment of office-holders and servants. There is nothingin the said provision to indicate that the Government has got powerto issue any administrative instruction or make any order inrespect of the appointment of the office-holders and servants.18. The learned counsel appearing for the respondents wouldmake a faint attempt to rely on Section 116 (2) (xxiii) of the HR &CE Act. Section 116 of the HR & CE Act deals with the rule makingpower of the Government. Of course, under sub-section (2) (xxiii),the Government has got power to make any rule regulating theconditions of service of office-holders and servants of thetemples. As per sub-section (3) of Section 116, all rules made andall notifications issued under Section 116 shall, as soon aspossible after they are made or issued, be placed on the table ofthe Legislative Assembly and shall be subject to such modificationsby way of amendment or repeal as the Legislative Assembly may makeeither in the same session or in the next session. At no stretch ofimagination, it can be said that G.O.Ms.257 is a rule issued by theGovernment under Section 116 of the HR & CE Act. Indisputably, itis only an administrative instruction.19. Now, turning to Rule 14 of the Tamil Nadu Hindu ReligiousInstitutions (Officers and Servants) Service Rules, 1964,admittedly, the same has been issued by the Government in exercise https://hcservices.ecourts.gov.in/hcservices/ of rule making power under Section 116 (2) (xxiii) of the HR & CEAct. Rule 14 of the Service Rules, as extracted above, statesthat it is imperative on the part of the trustee to frame aschedule in respect of the pay and emoluments of the officers andservants of the temple. Such a schedule will be valid if only thesame has been approved by the Assistant Commissioner in the case ofinstitutions under his jurisdiction and by the Joint or DeputyCommissioner in the case of other institutions. The said provisionfurther mandates that the trustee shall not alter the schedulewithout the prior permission of the Assistant Commissioner, Jointor Deputy Commissioner, as the case may. As rightly contended bythe learned senior counsel for the petitioners, a cursory perusalof Rule 14 will make it abundantly clear that the power to fix thepay and emoluments of the officer-holder and servants has beenvested only with the trustee of the temple. Of course, theschedule framed by the trustee needs to be approved by the JointCommissioner in the case of the instant temple. This rule also doesnot indicate that the Government has got any power to issue anyguideline or direction either for the trustee or for theauthorities like the Assistant Commissioner, Joint or DeputyCommissioner in respect of pay and emoluments of the officer-holders and the servants of the temple. In other words, it iswithin the exclusive domain of the trustee, however, subject to theapproval of the authority namely, Assistant Commissioner, Joint orDeputy Commissioner, as the case may be. The learned counsel forthe respondents would agree that apart from these provisions, thereis no other provision in the HR & CE Act which would at least goto show that the Government has got power to issue anyadministrative instruction or make any order in respect of the payand emoluments of the officer-holders and servants of the temple. 20. It is in this situation, the learned Special GovernmentPleader would submit that though it is true that neither thestatute nor the rule has empowered the Government to issue anyguideline or to make any order in respect of pay and allowances ofthe officer-holders and servants of the temple, such power flows tothe Government from Article 162 of the Constitution of India.21. The learned senior counsel for the 5th respondent wouldrely on a judgement of the Hon'ble Supreme Court in Rai Sahib RamJawaya Kapur v. The State of Punjab, AIR 1955 SC 549. In thatcase, the argument before the Constitution Bench of the Hon'bleSupreme Court was whether the executive power under Article 162 ofthe Constitution of India cannot be invoked by the executive toissue any instruction or make any order in respect of any subjectincluded in the State List or Concurrent List without making anylegislation on the said subject. In other words, the contention wasthat it is only when the Parliament or the State Legislature haslegislated on certain items pertaining to their respective lists,that the Union or the State executive, as the case may be, canproceed to function in respect of the said subject.22. While negativing the said contention, the ConstitutionBench of the Hon'ble Supreme Court has held as follows:- https://hcservices.ecourts.gov.in/hcservices/ "On the other hand, the language ofarticle 162 clearly indicates that the powersof the State executive do extend to mattersupon which the state Legislature is competentto legislate and are not confined to mattersover which legislation has been passedalready."23. For a moment, I wish to state that it is not the argumentof the learned senior counsel for the petitioner that the executivepower under Art 162 of the Constitution cannot be invoked by theState in the absence of any legislation made on the subject by theState. Per contra, it is the argument that when there is alegislation on the particular subject governing the field, theexecutive power of the Government is not available to issue anycircular or guideline or make any order so as to over ride any ofthe provisions of the statute or rule framed thereunder. 24. The learned counsel for the 5th respondent would rely onthe judgement of the Hon'ble Supreme Court in Union of India v.H.R. Patankar, 1984 (Supp) SCC 359. In the said judgement, theHon'ble Supreme Court has held that even when there are statutoryrules in force, if the same are silent on any particular subject,it is competent for the Government to issue an executive order tofill in the lacuna in the statutory rules. Relying on the saidjudgement, the learned senior counsel for the 5th respondent wouldsubmit that in the case on hand, since the HR & CE Act as well asthe Service Rules do not regulate the pay and emoluments of theofficer-holders and the servants of the temples, the Government,with a view to supplement the Act and the rules, has issuedG.O.Ms.257. Though attractive, I find it very difficult to acceptthe said contention. It is too well settled that if there is anylacuna in any rule, in order to fill up the same, so as to achievethe object of the Act, certainly, the Government can giveinstruction or issue administrative order in exercise of its powerunder Article 162 of the Constitution. But, at the same time, suchinstruction or order shall not be in conflict with any of theprovisions of the statute or Rules either expressly or impliedly.In this regard, we may have a look into the judgement of theHon'ble Supreme Court in State of Madhya Pradesh v. YogendraShrivastava, (2010) 12 SCC 538 relied on by the learned seniorcounsel for the petitioner. In para 13 of the said judgement, theHon'ble Supreme Court has held as follows:- "13. The contention that the executiveorders issued from time to time or theappointment letters issued in accordance withsuch executive orders will prevail over theRules cannot be accepted. When there isconflict between the statutory rules and theexecutive orders, the statutory rules willprevail (see K.Dayanandalal v. State ofKerala, (1996) 9 SCC 728, Tamil Nadu HousingBoard v. N.Balasubramanium, (2004) 6 SCC 85,State of Karnataka v. KGSD Canteen Employees' https://hcservices.ecourts.gov.in/hcservices/ Welfare Association, (2006) 1 SCC 567 andPunjab National Bank v. Astamija Dash, (2008)14 SCC 370). Executive orders cannot be madeor given effect in violation of what ismandated by the Rules. If appointment lettersprovide for payment of NPA which is not inconsonance with the Rules, they can becorrected or set right by thetribunal/courts."25. Thus, it is crystal clear that no instruction or order canbe issued by the Government under Article 162 of the Constitutionwhich will be in conflict with any statutory provision or ruleframed thereunder. 26. In the case on hand, it is the contention of the learnedsenior counsel for the petitioner that G.O.Ms.No.257 is in directconflict with Section 55 of the HR & CE Act and Rule 14 of theService Rules. I find every force in the said argument. In thisregard, my reasons are as follows. There is no express provision inthe Act regulating the pay and emoluments of the officers andservants of the temple. But, the Government has got rule makingpower in respect of the same as provided in Section 116 (2) (xxiii)of the HR & CE Act. The Government has rightly issued Tamil NaduHindu Religious Institutions (Officers and Servants) Rules inexercise of the said power. Rule 14 of the Service Rules is theappropriate provision which governs the subject relating to the payand emoluments of the office-holders and servants of the temple.It clearly mandates that the pay and emoluments of the office-holders and servants shall be in accordance with schedule orestablishment framed by the trustee. The said schedule orestablishment is to be approved by the competent authority namely,the Assistant Commissioner, Joint or Deputy Commissioner , as thecase may be. As I have already concluded, this rule does not giveany power to the Government to issue any guideline or circular inrespect of the pay and emoluments of the office-holders andservants of the temple. Rule 14 clearly and explicitly governs thesubject. But, G.O.Ms.No.257 states that the pay and emoluments ofthe office-holders and servants of the temple shall be inconsonance with the recommendations of VI Pay Commission which hasbeen implemented in the case of Government servants. Thus, therecan be no second opinion that G.O.Ms.No.257 is in conflict withRule 14 of the Service Rules. G.O.Ms.No.257 cannot survivesimultaneously with Rule 14 of the Services Rules since it is indirect conflict with Rule 14. Thus, G.O.Ms.No.257 is not incomplement of Rule 14 and as a matter of fact, it is only incontradiction to the same.27. The learned counsel for the 5th respondent would, however,submit that Rule 5-A which was introduced by way of amendmentgives power to the Government to issue such order. For the sake ofunderstanding, let us extract Rule 5-A of the Tamil Nadu HinduReligious Institutions (officers and Servants) Service Rules, 1964which reads thus:- https://hcservices.ecourts.gov.in/hcservices/ "5-A.SCHEDULE OF ESTABLISHMENT FOR EVERYRELIGIOUS INSTITUTION.- (1) Every religiousinstitution shall have a schedule ofEstablishment duly prepared by the Executiveauthority of such institution and approved bythe Commissioner. The Schedule ofestablishment shall contain the details ofpermanent and temporary posts, both outdoorand indoor, in all categories, with detailsof sanction order issued by the Commissionerand the grades of pay and other allowancesadmissible to such posts. The ExecutiveAuthority shall not alter the schedulewithout the previous permission of theCommissioner; (2) Every religious institution shalllimit the expenditure on salaries andestablishment within the percentage norms asmay be fixed by the Government from time totime.(3) No new posts, permanent andtemporary shall be created or filled up inany religious institution without thesanction of the Commissioner. If any suchpost or posts are created without thesanction of the Commissioner, the expenditureon account of such post shall be deemed to beunauthorised one and liable for surchargeproceedings under the provisions of the Act.(4) Every post in a religiousinstitution shall be sanctioned taking intoaccount the income of the religiousinstitution. The expenditure on salaries andestablishment shall be met from the income ofthe religious institution."28. A reading of rule 5-A would go to show that it only speaksof the details which are required to be incorporated in theschedule as per Rule 14 of the Services Rules. This rule also doesnot indicate that the Government has got any power to regulate thepay and emoluments of the office-holders and servants. As a matterof fact, Rule 5-A is complementary to Rule 14.29. The learned Special Government Pleader would submit thatin W.P.No.1465 of 2011 , this court has made an observation thatthe rule clearly exemplifies the power available with theGovernment to issue an order like G.O.Ms.No.257. I have verycarefully gone through the order of this Court, but, I am unable tofind any such observation as it is sought to be projected by thelearned counsel for the respondents. In para 15 of the saidjudgement, this Court has made the following observation:-"15. It is no doubt true that theGovernment Order passed earlier in https://hcservices.ecourts.gov.in/hcservices/ G.O.Ms.No.257, Tamil Development Culture andReligious Department dated 10.06.1998 is priorto the amendment. However, we are notconcerned with the Government Order as suchbut with the power of the first respondent inimposing the percentage norms. The earlierGovernment Order has not been put intochallenge and the impugned order has not beenpassed merely based upon the said order but onthe subsequent orders which are also notchallenged before this Court. Therefore, thisCourt is of the view that it is very well opento the Government which unfortunately is not aparty before this Court, to fix the normsregarding the expenditure of salary andestablishment. When the Government can limitthe expenditure such a power would alsoinclude the guidelines for fixing the salary."Again in para 16, this court observed as follows:-"16. Section 116(2) of the H.R.&C.E. Actconfers a wide range of powers to theGovernment. The power of the Government underthe said Section to make rules is ratherexhaustive. The following clauses of the saidprovision are extracted hereunder:"116(2)...............(vii) the budgets, reports, accounts,returns or other information to be submittedby trustees;(x) the proper collection of the incomeof, and the incurring of expenditure by,religious institutions;(xi)the custody of the moneys ofreligious institutions, their deposit in, andwithdrawal from banks, and the investment ofsuch moneys;(xii)the custody of jewels and othervaluables and documents of religiousinstitutions and the conditions andrestrictions subject to which the jewels andother valuables of religious institutions maybe disposed of;(xii-a) the manner in which, the persons(including the State Trading Corporation) towhom, the conditions and restrictions subjectto which, movable properties of any religiousinstitution including human hairs and otherarticles received as offerings in the https://hcservices.ecourts.gov.in/hcservices/ religious institutions, shall be sold orotherwise disposed of;(xiv) the manner in which the accounts ofreligious institutions shall be audited andpublished, the time and place of audit and theform and contents of the auditor's report;(xv) the method of calculating the incomeof a religious institution for the purpose oflevying contribution and the rate at which itshall be levied;(xxv) the grant of pensions or gratuitiesto officers and servants of the Board whoretired before the 30th September 1951;(xxvi) the grant of gratuities to theheirs of deceased officers and servants of theBoard including those who had retired beforethe 30th September 1951;"Therefore, a perusal of the above said Sectiontogether with the amendment made by way ofintroduction of Rule 5-A of the Tamil NaduHindu Religious Institutions (Officers andServants) Service Rules, 1964 clearlyexemplifies the power available with theGovernment."30. In my considered opinion, these observations made by thisCourt earlier cannot be understood in such a way, as if, this Courthas declared that the Government has got executive power to issueany order, instruction or guideline in respect of the subject dealtwith either expressly or impliedly by the statutes or rules framedthereunder. As has been held by this court, since the Governmentwas not a party in that writ petition, the validity ofG.O.Ms.No.257 was not gone into in the earlier proceedings. Thatis the reason why, G.O.Ms.No.257 has been specifically challengedin the present writ petition. In my considered opinion, in theearlier order this court has not at all upheld the validity ofG.O.Ms.No.257. As a matter of fact, it was left open.31. Thus, looking from any angle, it is crystal clear thatG.O.Ms.No.257, which is only an executive instruction, is in directconflict with Section 55 of the HR & CE Act and Rule 14 of theService Rules and so it is not valid. Hence, I hold thatG.O.Ms.No.257 is ultra vires the express provision of the HR & CEAct and Rule 14 of the Service Rules made thereunder and,therefore, the same is liable to be struck down. 32. Now turning to W.P.No.13918 of 2012, in the earlier writpetition, this court issued a direction to submit a schedule as perRule 14 and Rule 5A . According to the petitioner, on 07.02.2012 https://hcservices.ecourts.gov.in/hcservices/ such schedule was submitted by the petitioner. But, it is thecontention of the respondents 1 to 3 that it is not the scheduleand it is in the nature of only a memorandum containing narrationof the income and other aspects of the temple. For this, certainclarifications were sought for and they were also submitted.Finally, the impugned order has been passed. A perusal of theimpugned order would go to show that the 3rd respondent has notconsidered the relevant materials which will determine thecorrectness of the schedule to be approved under Rule 14.Admittedly, the temple in question has got annual income of morethan rupees one crore. Therefore, as per the rules, it is a seniorgrade temple. Rule 2(g) of the Rules defines the term "seniorgrade temple" thus:-“2 (g) - Senior Grade Temple” means anyreligious institution declared by Government asSenior Grade temple from time to time, takinginto account the income and movable and immovableproperties of the religious institution."33. There is no controversy before this Court that petitionertemple has been declared as senior grade temple. Now, coming toRule 14, in respect of senior grade temples, the competentauthority to approve the schedule is, undoubtedly, the JointCommissioner (the 3rd respondent herein). So far as the petitionertemple is concerned, there is no such approved schedule in terms ofRule 14. It is because of this reason, in the earlier writpetition, this Court directed the petitioner to submit a schedule(proposal). But, unfortunately, the proposal submitted by thepetitioner is not in tune with rule 14. It is in the nature of asimple narration of facts. But, the 3rd respondent, on his part,while passing the impugned order, also has not acted in accordancewith law. He has passed the impugned order based on G.O.Ms.No.257.Since the Government order in G.O.Ms.No.257 is quashed, theimpugned order in W.P.No.13918 of 2012 is also liable to be quashedinasmuch as the pay and emoluments of the office-holders andservants of the temple have been arrived at based on G.O.Ms.No.257also. 34. Further, as per the letter of the Government in LetterMs.No.416, Tamil Development - Culture and Charitable EndowmentsDepartment, dated 01.12.2000, the total amount to be spent towardspay and emoluments of the office-holders and servants of the templewhich is a senior grade temple shall not exceed 25%. According tothe proposal submitted by the petitioner temple, the totalexpenditure towards pay and emoluments was 24.40%. It is in tunewith the Government's Letter Ms.416 cited supra. But, in theimpugned order dated 24.04.2012, in para 2 , it is stated by the 3rdrespondent that the expenditure towards pay and emoluments can goup to 30%. Strangely in para 1, at the fag end, the 3rd respondenthas stated that the total expenditure towards pay and emolumentscan go up to 35% in respect of the petitioner temple. In the finalorder passed, there is no reference as to what was the totalexpenditure towards pay and emoluments, whether it is 25% or lessor more than 25%. Thus, in my considered opinion, the 3rd respondent https://hcservices.ecourts.gov.in/hcservices/ has not passed the impugned order as directed by this Court in theearlier writ petition by strictly adhering to the rules.35. In view of all the above, the proceedings impugned inW.P.No.13918 of 2012 are also liable to be set aside. But, at thesame time, it is for the 3rd respondent to pass appropriate ordersafresh after affording sufficient opportunity to both parties. Forthe present, since the petitioner temple is the senior gradetemple, as per the norms, the total expenditure towards pay andemoluments should not exceed 25%. For any reason, in future, if thepetitioner temple becomes a non senior grade temple, then, theexpenditure towards pay and emoluments may exceed 25%.36. In the result, W.P.No.13919 of 2012: This writ petitionis allowed and the Government Order in G.O.Ms.No.257, TamilDevelopment, Culture, Religious Charitable Endowments andInformation Department, dated 30.06.2010 is hereby quashed. Nocosts. Connected MPs are closed.W.P.No.13918 of 2012 : This writ petition is also allowed; theimpugned proceedings of the 3rd respondent in Na.Ka.1098/2012/B2dated 24.04.2012 and his consequential proceedings dated 03.05.2012are quashed and the matter is remitted back to the 3rd respondentwith the following directions:-(i) the petitioner shall submit a revised schedule relating tothe pay and emoluments of the office-holders and servants of thetemple which shall not exceed 25% of the income of the temple asdirected by this Court by order dated 06.01.2012 made inW.P.No.1465 of 2011. The Schedule, as directed above, shall besubmitted within a period of six weeks from the date of receipt ofa copy of this order.(ii) On receipt of the same and considering the revisedschedule and the proposal submitted earlier and the relevantdocuments, the 3rd respondent after affording sufficient opportunityto both the petitioner temple as well as the other respondentsherein, pass final orders within a period of eight weeks thereafteras required under Rule 14 of the Rules.(iii) It is further directed that the order of the JointCommissioner to be passed as directed hereinabove shall beimplemented with effect from the month of May 2012 scrupulously.The learned senior counsel appearing for the petitioner across thebar agreed that the petitioner temple will implement the sameretrospectively from the month of May, 2012 and the same isrecorded.(iv) The 1st respondent is directed to consider the income ofthe petitioner temple periodically, every year, and to declare asto whether the same is a senior grade temple or non-senior gradetemple from time to time as directed in Rule 5A of the Rules. Infuture, for any reason, if the Government declares under Rule 5A(2)that it is a non senior grade temple, then, the petitioner will https://hcservices.ecourts.gov.in/hcservices/ accordingly submit another proposal in respect of pay andemoluments of the office-holders and servants to the 3rd respondentand the 3rd respondent, in turn, will be at liberty to pass order inaccordance with law. (v) No costs. Consequently, connected MPs are closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarkmkTo1.The Secretary, Tamil Development, Religious Endowment and Information Department,Fort St. George,Chennai.2.The Commissioner,Tamilnadu Hindu Religious & Charitable Endowments Department, Nungambakkam High Road,Chennai.3.The Joint Commissioner,Tamilnadu HR & CE Department, Pattamangala Street, Mayiladuthurai, Nagapattinam District.1 cc To Mr.A.V.Arun, Advocate, SR.638031 cc To Mr.S.Sounthar, Advocate, SR.638602 CC to the Government Pleader SR NO 63738Writ Petition Nos.13918 and 13919 of 2012SV(CO)SRA(02/11/2012)