Commissioner had power to hold an enquiry for retiring petitioner.

1. Petitioner is a Priest at Arulmighu Kapaleeswarar Thirukoil. He has challenged the order of the Commissioner, H.R. & C.E. calling upon the petitioner to attend for an enquiry in reference retirement of all the temple servants on attaining- 60 years of age.

2. The main contention of the petitioner is that the enquiry and the notice for such an enquiry, is without jurisdiction. His case is that he is a hereditary Priest and therefore he is entitled to continue without reference to age.

3. Section 23 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 empowers the Commissioner to administer all temples and have general superintendence and control including the power to pass any order which may be deemed necessary to ensure that such temples are properly administered. Section 55 of the Act says that vacancies among the office holders or servants of a religious institution shall be filled up by the trustees. As per the explanation to the Section, the expression “office holders or servants” will include archagas and poojaris. Section 116 of the Act enables the Government to make rules to carry out the purposes of the Act. The Tamil Nadu Hindu Religious Institutions (Officers and Servants) Service Rules, 1964 provides for the age of the person appointed. According to this rule, every person appointed to such office shall retire on completing 60 years of age.

4. The Commissioner, in his counter affidavit, has categorically stated that the rights of hereditary succession of the office of archaga has been abolished by Tamil Nadu Act 2 of 1971 which came into force on 1. 1971. Hence, the petitioner must be deemed to have been appointed as an archaga of the temple only from 8. 1972. Having been born on 15. 1936, as per Rule 5 of the Rules set out above, petitioner shall have to be retired on completing 60 years of age, i.e. on 15. 1996. From the above facts and the position of law, it is clear that the contention that the Commissioner, H.R. & C.E. has no jurisdiction to hold an enquiry and that the petitioner is a hereditary archaga and can continue beyond the period cannot be sustained. In these circumstances, petitioner has to appear for an enquiry and establish his right.

5. It is further pointed out in the counter affidavit of the first respondent that Dr. Vishwanatha Sivachariyar, who was the Chief Priest of the same temple till 3. 1999 and who has completed 60 years of age on 7. 1988, was terminated from service on 12. 1999. Against the said order. Dr. Vishwanatha Sivachariyar filed Writ Petition No.3329 of 1999 on the file of this Court to quash the order of termination. By a judgment dated 3. 1999, K. Govindarajan, J. dismissed the writ petition. While dismissing the writ petition, he also directed the respondents to take action against other similarly placed persons who are continuing as priests even after attaining the age of 60. The said judgment was confirmed by the Division Bench in Writ Appeal No.424 of 1999 vide order dated 13. 1999. It was also pointed out that the said Judgment was also confirmed by the Honourable Supreme Court.

6. In the above circumstances, the proceeding initiated by the respondents cannot be held to be without jurisdiction. The contention of the petitioner that the order passed by this court earlier was on a concession and therefore, is not binding, cannot be sustained. In any event, if really the petitioner has got materials and records to establish his right of continuance beyond 60 years, he can very well submit the same before the Commissioner in the enquiry. The Commissioner shall pass orders uninfluenced by any of the observations contained in this order independently on the merits of the claim of the petitioner.

7. The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 was amended by Act 2 of 1971 whereby Sections 28, 55, 56 and 116 were amended. Those provisions were upheld by the Supreme Court in E.R.J. Swami v. State of Tamil Nadu, A.I.R 19