N.A. Sadashiva and Others vs State of Karnataka

These petitions coming on for preliminary hearing in ''B'' Group, are heard for final disposal.

The case of the petitioners is as follows:

The petitioners are employees of the third respondent --Temple. They were employed under the Mysore Religious and Charitable Institution Act, 1927. Under the said Statute, there was no classification of indoor temple servants and outdoor temple servants. They were entitled to continue in service as long as they were physically fit and there was no age limit for retirement. Their work was to supply flowers, playing on the musical instruments, decorating the temple and temple chariot, keeping the temple premises clean and to regulate the flow of devotees visiting the temple. They worked for a meagre salary and they were not entitled for any retirement benefits and other benefits provided to Government servants. With the coming into force of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 (hereinafter referred to as the ''Act'' for brevity), the second respondent had issued notice on 3.1.2005 to the third respondent to retire the employees who had attained the age of 60. The petitioners and other employees of the third respondent challenged the notice issued by the second respondent in writ petitions before this Court in W.P. 1215/2005 and connected cases. This Court disposed of the writ petitions allowing the petitioners to continue in service till the disposal of the SLP which is said to be pending before the Apex Court relating to a challenge to the constitutional validity of the provisions of the Act. The petitioners claim that they have challenged the notice dated 3.1.2005 whereby the third respondent has been directed not to pay the salaries and other benefits in terms of the Fifth Pay Commission, to the petitioners. The petitioners therefore contend that since the Apex Court is yet to decide the fate of the Act, and this Court having allowed the case of similar petitioners to be continued in service, it is appropriate that they be paid salaries as per the Fifth Pay Commission as has been done in respect of other employees who are similarly situated and who had challenged the age of retirement. Therefore, the petitioners on a parity of reasoning, would claim that they should be paid such salaries.

The learned counsel appearing for the third respondent, however, would seriously oppose the petitions and would contend that all the petitioners have exceeded the age of superannuation in terms of the Act. Though the validity of the Act was upheld by a learned Single Judge of this Court, a Division Bench had set aside the judgment and held that the Act was unconstitutional. The State has preferred an appeal before the Apex Court and insofar as the Temple servants are concerned, the Apex Court has directed status quo to be maintained. Among the servants, there are indoor and outdoor servants. Indoor servants are servants like Archaks, Paricharikas and staff whose work is confined to work inside the temple. The outdoor servants are temple clerks, security man, sweepers, etc. As per the New Act, the age of retirement of outdoor servants is 60 and indoor servants is 65. The petitioners have exceeded the above age limit and the Supreme Court is yet to decide the Civil Appeal. The decision of the Commissioner not to extend the benefit of Fifth Pay Commission, therefore cannot be faulted. Insofar the temple is concerned, it is bound to obey the orders of the Commissioner. The question of payment of the benefit of Fifth Pay Commission would arise only if the Apex Court should pass an order in favour of the petitioners. Till then, any payment made cannot be recovered. Moreover, the payment should be made out of the funds of the temple. Under the said circumstances, the petitioners'' grievance is unfounded and it is a matter which is pending before the Apex Court. The petitioners can claim any benefit only after disposal of the civil appeal by the Apex Court.

The reasoning of the learned counsel for the respondents does appear to be tenable. However, it also would stand to reason that if the case pending before the Apex Court should be decided in favour of the petitioners, the petitioners would certainly be entitled to the benefit. The same being denied notwithstanding the pendency of the matter before the Supreme Court, would place the petitioners at a disadvantage. In the opinion of this Court, it is appropriate if the petitioners are paid emoluments due to them under the Fifth Pay Commission report on the condition that the petitioners undertake to reimbuise the same if the case pending before the Apex Court should be decided against them and if they are disentitled to be continued after they attain the age of superannuation in terms of the New Act.

Accordingly, the petitions stands allowed. Respondent No. 3 is directed to pay the petitioners in accordance with the Fifth Pay Commission notwithstanding the directions issued by the Commissioner for Religious and Charitable Endowments to the contrary, subject to the result of the appeal pending before the Apex Court and further subject to the petitioners furnishing appropriate security for due repayments of monies if they are found disentitled to the same on disposal of the appeal before the Apex Court. On that condition, the petitions stand allowed.