Devan Ramachandran, J.:— Prefatorily speaking, at the heart of all the allegations in these writ petitions; one of which has been filed by the President of a prominent political party, one by the former President of the Travancore Devaswom Board, the third by a registered Association of Thantris of various temples in Kerala and the last by an individual who claims to be a devotee and General Secretary of a registered Association of various “Hindu groups”, is indubitably an apprehension that certain amendments made to the Travancore-Cochin Hindu Religious Institutions Act, 1950 (for short, “TCHRI Act”), through the Travancore-Cochin Hindu Religious Institutions (Amendment) Act, 2018 (Act 26 of 2018), is to illegally facilitate the appointment of a “non-Hindu” as the Commissioner of the Devaswoms governed by the TCHRI Act.
2. The ossature on which the contentions of the various petitioners are edificed in these writ petitions; which we are considering together in this judgment on account of the analogous nature of the factual circumstances and reliefs prayed for, is that through the amendments made to the TCHRI Act, the Government obliquely is attempting to appoint a person who does not profess the Hindu religion as a Devaswom Commissioner because the stipulation, that such an officer shall always be a Hindu, as was obtained in Section 29(2) of the original TCHRI Act, now stand deleted through the amendment. They say that they have, therefore, been justifiably warned and advised that the purpose of these amendments is only to pave way for the appointment of even “non-Hindus” into the Devaswom administration.
3. We have heard Sri. P.B. Krishnan, Sri. V. Sajith Kumar, Sri. Binoy Vasudevan and Sri. V. Sethunath, the learned counsel appearing for various petitioners in all these writ petitions; Sri. K.P. Sudheer, the learned standing counsel appearing for the Cochin Devaswom Board and Sri. C.P. Sudhakara Prasad, the learned Advocate General, assisted by Sri. V. Manu, learned Government Pleader appearing for the official respondents.
4. For convenience and nothing else, we propose to treat W.P. (C) No. 33856/2018 as the lead case and consequently, all reference to parties and documents in this judgment, unless otherwise specified, will be as it appears in this writ petition.
5. The petitioners allege that as per the original provisions of the TCHRI Act and in particular, Section 29, only a person who professes the Hindu religion can be appointed as the Devaswom Commissioner of the various Devaswom Boards under its ambit. They assert that the original unamended Sections 29(1) and (2) makes this indubitable:
“29. Board's control over the Devaswom Department - (1) The Devaswom Department constituted in 1097 shall continue and shall consist of such number of Hindu officers and other servants as may be determined from time to time by the Board.
(2) The Devaswom Department shall, subject to the supervision, direction, and control of the Board, be under the Devaswom Commissioner who shall be appointed by the Board. He shall be a Hindu.”
6. As per the petitioners, through the Amendment Act, namely Act No. 26 of 2018, three acme changes have been sought to be brought into the TCHRI Act: by insertion of a new Section 13B; by an amendment to Section 29 and by the substitution of a new Section for the original Section 74A. According to them, all these amendments read together, would lead to an inescapable suspicion that the attempt of the Government is to induct a “non-Hindu” as the Devaswom Commissioner.
7. When we examine the amendments that are sought to be made through Act 26 of 2018, we notice that Sections 4 and 8 thereof are intended to bring a new Section, namely, Section 13B and to substitute an existing Section, namely Section 74A respectively of the TCHRI Act in a particular manner. Sections 4 and 8 of Act 26 of 2018 read as follows:
4. Insertion of new section 13B: After section 13A of the principal Act, the following section shall be inserted, namely:
13B. Appointment of Devaswom Commissioner - The Board shall appoint an officer not below the rank of a Deputy Commissioner who is eligible to be promoted as Devaswom Commissioner, and in the absence of such officer, an officer not below the rank of an Additional Secretary to Government on deputation, as Devaswom Commissioner.”
8. Substitution of new section for Section 74A - For section 74A of the principal Act, the following section shall be substituted, namely:
74A - Appointment of Devaswom Commissioner - The Board shall appoint an officer not below the rank of a Deputy Commissioner who is eligible to be promoted as Devaswom Commissioner, and in the absence of such officer, an officer not below the rank of a Joint Secretary to Government, on deputation, as Devaswom Commissioner.”
8. After making the afore amendments through Sections 4 and 8 of the Amending Act, Section 29 of the TCHRI Act is sought to be amended as under through Section 5 thereof:
“5. Amendment of section 29 - In sub-section (2) of section 29 of the principal Act, the words “who shall be appointed by the Board. He shall be a Hindu” shall be omitted.”
9. Therefore, the sum total of the nomothetic exercise through these amendments appear to be that the respective Devaswom Boards have now been vested with the power to appoint its Commissioner from the rank of a Deputy Commissioner, who is eligible to be promoted as a Devaswom Commissioner; and that in the absence of such an officer, to appoint an officer not below the rank of a Joint Secretary to Government, on deputation.
10. The first limb of the above changes in the TCHRI Act, which authorises the Board to appoint an existing Deputy Commissioner in its services as the Commissioner, would present no difficulty, as apprehended by the petitioners herein, since it is undisputed that such an officer can only be a Hindu, going by Section 29(1) of the TCHRI Act, which has not been amended through the Amendment Act, which unmistakably provides that the Devaswom Department shall consist only of Hindu Officers. Ineluctably, therefore, a Deputy Commissioner in service, who concededly is a part of the Devaswom Department, sought to be promoted as a Commissioner, by deriving power under the amendment, would certainly be only a Hindu, since otherwise it is in violation of Section 29(1).
11. In the afore milieu, the issues in these writ petitions would, resultantly, have relevance only when the Board attempts to appoint an officer not below the rank of a Joint Secretary to Government on deputation, under the afore provisions of the Amendment Act, namely Act 26 of 2018. This ex facie appears to be a gray area where it could be interpreted that either only a Hindu Joint Secretary to Government can be appointed or that any Joint Secretary to Government can be so appointed on deputation de hors the restrictions in Section 29(1), because nowhere does the TCHRI Act specifically say that a Commissioner will be a part of the Devaswom Department. This is extremely relevant and pertinent because if the Devaswom Commissioner is part of the Devaswom Department, then under the provisions of Section 29(1), only a Hindu can be so appointed, since the said Section mandates, without any reservation, that every member of the Devaswom Department shall always be a Hindu. The petitioners say that the Statute is silent on this pertinent issue as to whether the post of the Devaswom Commissioner is a part of the Devaswom Department and therefore, that when Section 29(2) is amended as above extracted, so as to take away the stipulation that a Commissioner shall always be a Hindu, the attempt appears to be to induct in a “non-Hindu” into such post.
12. At first look, the submissions of the learned counsel for the petitioners to the afore effect looks justifiable, but we notice that the Government has now placed on record an affidavit, dated 25.10.2018, sworn to by the Principal Secretary, Revenue Devaswom Department in W.P.(C) No. 33856/2018, wherein they expressly concede that the purpose of the impugned amendments is not to bring a non-Hindu as the Devaswom Commissioner and interestingly, they, thereafter, assert rather vehemently that the intention behind it was only to allow appointment of a serving Deputy Commissioner, who is otherwise eligible to be appointed as a Commissioner and that in the absence of such an officer, to appoint a Joint Secretary in the service of the Government on deputation, without, in any manner, intending that such officer can be a “non-Hindu”.
13. In fact, the specific averments of the Government in their counter affidavit, as is available in paragraphs 7 and 8 thereof, makes this luculent and we, therefore, deem it appropriate to extract them for ease of relevance as under:
“7. As stated above, both newly inserted provisions in the TCHRI Act, Section 13B and 74A, provides for appointment of Devaswom Commioners of Travancore and Cochin Devaswom Boards in two ways: (i) by promotion from among eligible Deputy Commissioners and(ii) if there are no eligible Deputy Commissioners, by deputation of Government Officers. As per Section 29(1) of the TCHRI Act, only a Hindu can be a Deputy Commissioner and as such only a Hindu (eligible Deputy Commissioner) can be appointed by way of promotion as Devaswom Commissioner in both Travancore and Cochin Devaswom Boards. Appointment by deputation to a particular post can only be of persons eligible and qualified to hold that post. Since Section 29(1) of the TCHRI Act mandates to the effect that all officers of the Devaswom Department must be Hindus and since Devaswom Commissioner is an Officer of the Devaswom Department as provided for under Section 29(3) of the TCHRI Act, only a Hindu can be Devaswom Commissioner, as stated above, and, as such, only a Hindu Government Officer can be deputed as Devaswom Commissioner of both Travancore and Cochin Devaswom Boards.
8. The now amended Section 29(2) of the TCHRI Act, as it stood prior to the amendment, dealt with the appointment of Devaswom Commissioner. Since Sections 13B and 74A were inserted in the TCHRI Act by way of Sections 4 and 8 of the Amendment Act, which Sections provided for method of appointment of Devaswom Commissioners in Travancore and Cochin Devaswom Boards respectively, the portion of erstwhile Section 29(2) of the TCHRI Act which provided for appointment of Devaswom Commissioner was omitted. This amendment was never meant to appoint a “non-Hindu” as Devaswom Commissioner. That was not the object sought to be achieved by the said amendment. By insertion of Sections 13B and 74A in the TCHRI Act and amendment of erstwhile Section 29(2) therein, only the mode of appointment of the Devaswom Commissioner has been changed. The post of Devaswom Commissioner has now been made a promotion post or a deputation post in contrast to the earlier mode of direct selection. Even going by the amendments, only a Hindu can be appointed as Devaswom Commissioner in Travancore and Cochin Devaswom Boards. It is reiterated that going by Sections 29(1) and (3) as well as Sections 13B and 74A of the TCHRI Act, only a Hindu can be appointed as Devaswom Commissioner in Travancore and Cochin Devaswom Boards. It is further reiterated that the first respondent, by the impugned amendments, never intended appointment of a “non-Hindu” as Devaswom Commissioner of Travancore and Cochin Devaswom Boards. It is most humbly submitted that such reiteration to the effect that only a Hindu will be appointed as the Devaswom Commissioner of both Travancore and Cochin Devaswom Boards may not be necessary in so far as the statutory prescriptions in TCHRI Act mandate that only a Hindu can be appointed as Devaswom Commissioner of both Travancore and Cochin Devaswom Boards.”
14. A reading of the afore extracted averments in the counter affidavit of the Government would make it inescapable that even they have no case that a “non-Hindu” can be appointed as a Devaswom Commissioner; but on the contrary they manifestly admit that only a “Hindu” can be so appointed.
15. However, the learned counsel for the petitioners and in particular, Sri. P.B. Krishnan, submits before us that what is relevant is not the way the Government understands the amendments; but as to whether the impugned amendments in the TCHRI Act can be subjected to mischief in future, when another dispensation or administration may try to resile from this stand and attempt to appoint a “non-Hindu” as the Devaswom Commissioner.
16. Sri. P.B. Krishnan, in fortification of his submissions on the afore lines, further says that since the TCHRI Act leaves no doubt that the members of the Boards under it mandatorily are to be Hindus, it would be an irony in law that the Devaswom Commissioner can be appointed even from among persons who are not Hindus.
17. Sri. Sajith Kumar, the learned counsel appearing for the petitioner in W.P.(C) No. 34020 of 2018, relies on the judgment of a Full Bench of this Court in Krishnan v. Guruvayoor Devaswom Managing Committee [1979 KLT 350 (F.B)], in substantiation of his assertion that whatever be the amendments made to the TCHRI Act, a Devaswom Commissioner can only be a Hindu, by pointing out paragraph 51 in the said judgment which reads as under:
“51. S.16 Provides that when the office of the Administrator is temporarily vacant it shall be competent for the Government, notwithstanding the provisions of S.14 and 15, to appoint an officer of the Government not below the rank of Deputy Collector or Deputy Commissioner appointed under the Madras Hindu Religious and Charitable Endowments Act to be in additional charge of the office of the Administrator provided that the period of such additional charge shall not exceed one month. By reason of the non-obstante clause contained in this section which excludes the applicability of even the qualification mentioned in S.14 that the person to be appointed as Administrator of the Devaswom should profess the Hindu religion, it is rendered possible for the Government to place a non-Hindu officer in additional charge of the office of the Administrator temporarily for a period not exceeding one month. When we look into the provision of S.17 wherein the powers and duties of the Administrator are enumerated it will be seen that he is the chief executive officer of the Devaswom who is charged inter alia with the duties to arrange for the proper performance of the rites and ceremonies in the Temple, to provide facilities for the proper performance of the worship by the worshippers, to ensure the safe custody of all funds and properties including jewelleries and to arrange for the proper collection of offerings made in the Temple. His functions cannot be said to be merely secular in as much as he is to arrange for the performance of the rites and ceremonies in the Temple in accordance with the custom and usage obtaining in the Temple as per the directions of the Committee. We feel no doubt that S.16 in so far as it empowers the Government to appoint a non-Hindu to be in additional charge of the function of the Administrator of the Temple constitutes a clear violation of the rights of the denomination under Art. 25 and 26 (a) and 26 (b) of the Constitution.”
18. He, therefore, contends, that as is clear from the afore extracted view of the Full Bench, even an Administrator appointed to a Temple cannot be a “non-Hindu” and therefore, that, on a parity of reasoning, the case of a Devaswom Commissioner should attract a greater rigor of the requisite of such person being a Hindu.
19. Sri. Binoy Vasudevan and Sri. Sethunath, the learned counsel appearing for the petitioners in W.P.(C) Nos. 34963/2018 and 33896/2018 respectively, say that they affirm and adopt the afore impelled contentions of Sri. P.B. Krishnan and Sri. Sajith Kumar and they assert that the grounds raised in their writ petitions would be sufficient for this Court to make a declaration as has been prayed for.
20. Even though, going strictly by the averments made by the Government in their affidavit, it may not have been necessary for us to go into these issues in any greater detail, we deem it appropriate to glance through the provisions of the TCHRI Act to dispel any suspicion in the minds of the petitioners that a future dispensation in governance can recant from their present stand and appoint a “non-Hindu” as the Devaswom Commissioner.
21. As we have already indicated above, as is limpid in Section 29(1) of the TCHRI Act, a Devaswom Department can only be constituted of Hindu officers in service. The axiomatic question, therefore, is whether the post of Devaswom Commissioner can obtain to be construed as one beyond or independent of the Devaswom Department or whether it is a part of the said Department. If we declare that the Devaswom Commissioner is part of the Devaswom Department, then under the mandate of Section 29(1), only a “Hindu” can be so appointed, notwithstanding the amendment to Section 29(2). If our view is to the contrary, then we may have to consider whether the amendment now sought to be made to Section 29(2) would require any further evaluation.
22. On a close survey of the provisions of the TCHRI Act, there cannot be any doubt that the Devaswom Commissioner is the Chief Executive Officer of the Devaswom, who has been burdened with certain enumerated duties and responsibilities to perform. Section 29(2) of the TCHRI Act, both original and amended, provides that the Devaswom Department shall, subject to the supervision, direction and control of the Board, be under the Devaswom Commissioner; the only difference in the original and amended Section being that after the amendment, the original stipulations that he “shall be appointed by the Board” and “shall be a Hindu” have been deleted. Therefore, it can leave no doubt; and it appears to be the conceded position by all parties, that the Devaswom Department is under the supervisory control of the Devaswom Commissioner and the sole point of departure, so to say, is whether this would mean that the Devaswom Commissioner is an independent entity, being merely a link between the Board and the Devaswom Department.
23. We have anxiously considered this issue and we see that the Devaswom Commissioner is, as already indicated above, stipulated by the TCHRI Act to be the Chief Executive Officer of the respective Devaswom Board. The TCHRI Act further inexorably mandates that the Devaswom Commissioner, in his position as the Chief Executive Officer, will act under the supervisory, managerial and disciplinary control of the Board. In the teeth of such unambiguous statutory prescriptions, can one find the post of Devaswom Commissioner to be not part of the Devaswom Department? We think not; particularly because there is no contra provision in the TCHRI Act and adscitiously since the post of a Deputy Commissioner in service, from which the impugned amendment allows a promotion to the post of Commissioner, is without any doubt part of the Devaswom Department and consequently when such a promotion is effected, there being no express statutory stipulation to the contrary, the incumbent would continue to be part of the said department. There, therefore, can be no contrarian interpretation when a Joint Secretary to the Government is appointed as Commissioner on duputation, because in such event also, the said Officer would become part of the Devaswom Department, until he/she is repatriated.
24. The above being our deeply contemplated opinion, it is felicitous that the Government also shares this same view, as is inescapable from the afore extracted averments in the affidavit, wherein they explicitly concede that the Devaswom Commissioner is an intrinsic part and component of the Devaswom Department and therefore, that even if a Joint Secretary to Government is appointed on deputation, he will certainly have to be a Hindu. This position, in our view, is crystallized in the substratum of the TCHRI Act itself, wherein it inviolably mandates the Commissioner, as the Chief Executive Officer of the Board, to be in charge of not merely the temporal activities but also of the religious traditions and rites of the various temples; and, therefore, it does not require any further expatiation that such an officer will have to be a Hindu by religion.
25. In the afore perspective, we feel fully justified in declaring that the post of Devaswom Commissioner, under the TCHRI Act, is a part of the Devaswom Department under it and axiomatically that, under the rigor of Section 29(1), such an officer will always have to be a person professing the Hindu religion. It is so declared.
26. Before we part, we deem it necessary to clarify that since the petitioners have, in these writ petitions, prayed that sections 4, 5 and 8 of Act 26 of 2018 be struck down on the limited plea that a Commissioner cannot be a “non-Hindu”; and since there is no challenge to any other provisions of these Sections, our observations and declarations in this judgment are confined exclusively to this question and that no other issue has gained our attention, thus leaving all others open.
27. These writ petitions are thus ordered.
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