V.K. Bali, C.J. (Oral)

Ranjith.V., the petitioner herein, has filed this petition under Article 226 of the Constitution of India challenging the vires of Rule 4(1) of the Rules under the Travancore-Cochin Hindu Religious Institutions Act, 1950 (Exhibit P3) as violative of Article 16(2) of the Constitution of India.

2. The brief facts culminating into the filing of the present petition would reveal that the Travancore Devaswom Board, the 2nd respondent herein, is an 'other authority' answering the definition of 'State' under Article 12 of the Constitution of India. The Board has been constituted under Section 4 of the Travancore Cochin Hindu Religious Institutions Act, 1950, hereinafter referred to as 'Act of 1950', for the purpose of administration, supervision and control of incorporated and unincorporated Devaswoms and other Hindu religious endowments and funds. Secular functions relating to administration, supervision and control of religious institutions in the Hindu religion are thus entrusted with the 2nd respondent Board. After referring to the constitution of the Board, it has further been pleaded that the constitution of the Devaswom Fund has been dealt with under Section 25 of the Act and it shall consist of a sum of Rs.46,50,000/- mentioned in Article 290A of the Constitution of India as payable to the Devaswom Fund, all moneys realized from time to time by sale of movable properties belonging to Devaswoms, all voluntary contributions and offerings made by devotees, profits and interests received from investments of funds belonging to Devaswoms and all other moneys belonging to or other income received by the Devaswoms. Out of the sum of Rs.46,50,000/- mentioned above, an annual contribution of Rs.6,00,000/- shall be made by the Board towards the expenditure in Sree Padmanabha Swamy Temple, Thiruvananthapuram. As per Section 16A of the Act, the Board may, from time to time, with the previous sanction of the Government of Kerala and subject to such conditions and limitations as the Government may determine, borrow any sum for investment by the Board in any remunerative scheme undertaken or to be undertaken by it. On the facts as mentioned above, it is pleaded that the Board constituted under the Act of 1950 would be 'State' within the meaning of Article 12 of the Constitution of India. A Full Bench of this Court in P.M. Brahmadattan Namboodiripad v. Cochin Devaswom Board (AIR 1956 TC 19) has already held that the Board would come within the ambit of 'other authority' under Article 12 of the Constitution. After giving the factual backdrop, which may not be much relevant at this stage, it is pleaded that respondent No.2, Board, had published in Gazette dated 13.1.1953, a notification dated 27.11.1952 with regard to Rules under the Act of 1950. The said Rules were framed under the quasi legislative act, subordinate legislation in exercise of the powers conferred by sub-section (5) of Section 29 and clause (e) of sub-section (2) of Section 35 of the Act of 1950. The Rules were, thus, framed for the purpose of regulating recruitment of Devaswom employees under three divisions, viz., Higher Division, Intermediate Division and Lower Division. Part-III of the Rules would deal with general conditions of recruitment. Rule 4(1) of the said Rules reads as follows:-

"4. A person shall not be recruited to the Devaswom Administrative Service unless.-

(1) he is born or domiciled in the territory of the former State of Travancore".

The Rule reproduced above is said to be violative of Article 16(2) of the Constitution of India. Article 16(2) of the Constitution reads as follows:

"(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State".

The condition of a person having been born or domiciled in the territory of former State of Travancore for Devaswom Administration Ser