JUDGMENT

DR.G.JAYACHANDRAN,J.

AND SUNDER MOHAN,J.

The Writ Appeal is preferred by the State being aggrieved by the order of the learned Single Judge, who has allowed the writ petition filed by the respondent.

2. The brief facts of the case are that:-

(i) The respondent herein while serving as a Joint Commissioner in Hindu Religious and Charitable Endowments Department, Trichirappalli alleged to have appointed temporary staffs on daily wages for the non sanctioned post. Charges were framed under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and enquiry was conducted. The substance of the charges is that the respondent while working as Joint Commissioner of HR & CE, Trichirappalli had made irregular appointments in the temples under his control, which is contrary to Section 55 of the Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as 'HR & CE Act').

(ii) Without being vest with the power to create a new post in the Department, the delinquent has created the new post and also appointed 13 persons and thereby abused his position. Further, having created new post without power had appointed staffs and not informed to the Commissioner, thereby, committed the dereliction of duty and responsibility which is unbecoming to be a member of the service. Opportunity was given to the delinquent and he replied that he has not violated any rule or caused any loss to the institution. He permitted to appoint the persons on daily wages in respective temples based on the resolution passed by the fit person of those temples subject to ratification by the Commissioner. Therefore, he has not unilaterally usurp any power not vested with him as alleged in the charges.

(iii) Further, alleging that malafide in the action for initiating the proceedings being infuriated by his act of approaching the High Court for obtaining the Stay on earlier Disciplinary Proceedings initiated under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. He has submitted that the charges are unsustainable and action has been initiated with malafide intention on the eve of retirement. However, the first respondent after considering the enquiry officer's report and the material placed in defence, found the delinquent guilty and ordered for removal from service. The said order, dated 02.02.2017 was challenged by the respondent/delinquent in W.P.(MD)No.2580 of

2017.

3. The learned Single Judge after considering the Service Rules governing the delinquent, extracting Section 55 of the HR & CE Act, which enables the fit person, who is competent to be appointed as employee in the service either permanent or temporary, held that the Commissioner cannot interfere in the process of appointment of office bearers or servants of religious institute and the Commissioner cannot insist on prior permission before appointment.

4. Being aggrieved, the State has preferred the appeal on the ground that the learned Single Judge has not properly appreciated the law on facts. While Section 55 of the Tamil Nadu HR & CE Act permits fit person to pass resolution regarding the appointment of staffs, such appointment requires permission from the Commissioner of HR & CE. Though the fit person of the respective temples passed the resolution before permitting them to proceed with the appointment, the delinquent/writ petitioner ought to have obtained prior permission for filling up those posts. Having failed to comply with the requirements under the statute as well as G.O.Ms.No.255, Tamil Development and Religious Endowment and Information (RE 4-2) Department, dated 28.06.2010. In which, Rule 5(A) specifically states that no new posts, permanent or temporary, shall be created or filled up in any Religious Institutions without sanction of the Commissioner. The said rule has been grossly violated by the delinquent. The learned Single Judge, ought to have upheld the order of dismissal from service instead of ignoring the antecedents of the