ORDER
1. Petitioner is one of the hereditary trustees of Sri Ranganayakaswami temple at Peddavaram in Guntur District. He assails an order dt. 11-6-90 issued by the 2nd respondent Commissioner of Endowments, under Section 29(3) of the A. P. Charitable and Hindu Religious Institutions and Endow-ments Act, 1987 (Act 30 of 1987) hereinafter referred to as the 'Act', appointing 16 temple clerks as Executive Officers in the proposed III Grade (presently IV and V Grades). The 4th respondent is one of the 16 promotees. The 2nd respondent directed the 3rd respondent to post the 16 promotees to various institutions. Petitioner submits that the Commissioner has no jurisdiction under Section 29 of the Act, to appoint Executive Officers. He therefore challenges the order of the 2nd respondent dt. 11-6-90.
2. Pursuant to the above order, the 3rd respondent gave posting orders in his proceedings dt. 28-6-90 to the above promotees. He posted the 4th respondent as Executive Officer in Sri Ranganayakaswami temple and directed him to take charge from Sri M. Gandhiraju, Executive Officer, Rajavolu. The 4th respondent took charge on 30-6-90. Petitioner filed W. P. 224/91 and obtained an ex parte interim order of stay of the order dt. 28-6-90 in W. P. M. P. 256/ 90. It appears that another hereditary trustee had filed W. P. 14373/90 and obtained interim order on 19-11-90. The interim order dt. 9-1-91 in W.P.M.P. 256/90 in W. P, 224/91, filed by the petitioner was vacated on 7-2-1990. It is on the same date that the petitioner filed the present writ petition challenging the order dt. 11-6-1990 passed by the 2nd respondent in pursuance of which the 3rd respondent had issued order dt. 28-6-90 which is under challenge in the earlier proceedings.
3. The main ground which the petitioner urges is that the 2nd respondent has no jurisdiction to appoint Executive Officers under Section 29 of Act 30 of 1987. He submits that it has been so held by this court in Vasudev Pershad v. Commr. of Endowments (1990) 2 APLJ (SN) 18 (2). It is his case that under Section 27 of the Charitable and Hindu Religious Institutions and Endowments Act, 1966, the power of appointment of Executive Officers was entrusted to the Commissioner/ Dy. Commissioner etc. whereas Section 29 of Act 30 of 1987 confer such power only on the Government as found by my learned brother Neeladri Rao, J. in the above decision. He also submits that theappointment of an Executive Officer exclusively to Sri Ranganayakaswamy temple imposes undue burden on the resources of the temple. In other words, he is in favour of continuance of an Executive Officer who will be in charge of some other temples also. Counsel also submitted that till such time as Rules are framed under Section 29(3) of the Act for constitution of grades and classification of Executive Officers, the Commissioner has no power of appointment. He referred to a judgment of a Division Bench of this court in W. A. 644/1974.
4. The 4th respondent has filed a detailed counter affidavit. It is his case that the petitioner has no locus standi to challenge the order whereby 16 temple employees have been promoted on a purely temporary basis as Executive Officers pending finalisation of rules under Section 29(3) of Act 30/87. According to him an Executive Officer was appointed in respect of the concerned temple ever since 1965 and the present change cannot give rise to such grievance to the petitioner as would justify the invocation of the jurisdiction of this court under Art. 226 of the Constitution of India. He also submits that at the time when the petitioner filed W. P. 224/91 against the order of the 3rd respondent dt. 28-6-90, he must have been fully aware of the order of the Commissioner, promoting the 4th respondent and 15 others to which the 3rd respondent gave effect by posting the 16 promotees including the 4th respondent in some of the institutions. One of the hereditary trustees had filed W.P. 14373/ 90 as early as on 19-11-1990. Counsel for the 4th respondent submits that the present Writ Petition is filed on 7-2-91 i.e. the same date on which the interim stay granted on 8-1-91 was vacated. Counsel therefore submits that there is no justification for this undue delay.
5. Government Pleader (Endowments) has taken notice and submitted that the Commissioner has passed orders strictly within his powers under the Executive Officers Subordinate Service Rules, 1978, which are saved by Section 155 of Act 30 of 1987. He also submitted that appointments made under 1978 rules having been saved underthe repealing section, any modification or alteration of that order also is saved. He submitted further that a Division Bench of this Court has held that Section 29 of Act 30 of 1987 can be effective only when Rules are framed under Section 33 of that Act and hence the 1978 Rules will continue. He supported the other submissions of the 4th respondent.
6. The point for my consideration in this Writ Petition is whether the petitioner is right in his submission that Section 29 of the Act confers the power of appointment of Executive Officers only on the State Government, to the exclusion of the Commissioner/Deputy Commissioner. It is true that it was so held by my learned-brother Neeladri Rao, J. But a different view was taken by Amereswari, J. in W.P. No. 3568/88 and the same was applied by a Division Bench in W.A. No. 1715/88. The Division Bench of this court held that by virtue of Section 155(2) of the Act orders of appointment of Executive Officers which were passed by the Commissioner under section 27 of the old Act viz., Act 17 of 1966 were saved. It was so held on a finding that Section 29 read with Section 33 of the 1987 Act that the power of appointment under Section 29 of the new Act will be operative only when rules are framed under Section 33 and till then the pre-existing position will continue. The effect of the finding of the Division Bench is to repel the contention that the State Government alone is competent to appoint Executive Officers by virtue of the provisions contained in Section 29 of Act 30 of 1987. I am bound by the decision of the Division Bench. Even otherwise, I am of the opinion that the power of appointment of Executive Officers is part of the power of Administration under Section 8 of the said Act. Dealing with the question of administration by minorities of schools of their choice, the Supreme Court has repeatedly held that the power of appointment is part of the power of administration. I need only refer to State of Kerala v. Mother Provincial, 0065/1970 : [1971]1SCR734 and Ahmadabad St. Xavier College v. State of Gujarat, : [1975]1SCR173 . I am also of the opinion that it is necessary to read the provisions of astatute harmoniously, so as to give meaning to every enacted provision and not in such a manner as to create an anomaly or absurdity. It appears to me to be manifestly absurd, to insist that the State Government shall appoint an Executive Officer, who according to the provisions contained in sub-section (5) of Section 29 will be a subordinate of the Board of trustees of the temple who can be appointed by an Assistant Commissioner as provided in Section 15 of Act 30 of 1987.
7. I find considerable force in the submission of the 4th respondent that there is no bona fides in the approach of the petitioner to this court. Admittedly, the Commissioner has been appointing an Executive Officer in respect of the temple from 1965 onwards. The respondent directed the 4th respondent to take charge from Sri M. Gandhi Raju, who was holding additional charge as Executive Officer of the temple. Petitioner cannot complain to this Court, of absence of power in the Commissioner only due to a change in the personnel of the Executive Officer. No right of the petitioner is affected by such a change in the personnel, nor can he plead by proxy the cause of the person who has been replaced.
8. Another important fact is that the proviso to Section 29(3) enjoins that 20% of the vacancies in the grade of Executive Officers shall be filled by the employees belonging to the institutions or Endowments of prescribed grades. The order dt. 11-6-90 was issued to satisfy this statutory requirement, that provision cannot be defeated by insisting that the State Government alone can appoint temple employees as Executive Officers on a temporary ad hoc arrangement, till rules are framed as provided under Section 33 of the Act to give effect to Regulations made under Section 29(3) proviso to Act 30 of 1987.
9. Counsel for the 4th respondent invited my attention to the fact that Section 29(3) has been suitably amended, apparently in the light of the observations contained in the judgment of my learned brother Neeladri Rao,J. so as to enable the Government to frame rules to provide for appointment of Executive Officers, their qualifications, theappointing authorities etc. The effect of the amendment is that there is no repugnancy between Section 27 of the old Act and Section 29 of the new Act since both visualise rules to provide for all matters connected with the appointment of Executive Officers. Therefore, the sting has been taken out of the decision of my learned brother, Neeladri Rao, J. I also find considerable force in the submission of the learned counsel for respondents that the petitioner is not entitled to challenge the order dt. 11-6-90 in a Writ Petition filed on 7-2-91, after assailing earlier the consequential order dt. 28-6-90. There is no convincing explanation for this very curious conduct and the inordinate delay involved in assailing the order of the Commissioner.
10. Counsel for the petitioner invited my attention to the judgment of a Division Bench of this Court in W.A. No. 644/74. The question which the Division Bench considered related to grouping of institutions under Section 27(2)(b) of A. P. Charitable and Hindu Religious Institutions and Endowments Act (17 of 1966). The relevant provision obliged the Commissioner to group such institutions or Endowments 'in accordance with such rules as may be made by the Government in this behalf.' Those rules were not framed at the time when the impugned orders were passed; nor at the time when the Division Bench considered the question in its judgment dated 13-6-1976. The Court held that grouping can only be 'in accordance with the rules made by the Government'. The Bench also held that 'in other words, if there are no rules, the Commissioner shall not exercise the power'.
11. Subsequent to the judgment, the State Government promulgated the A. P. Endowments Executive Officers Subordinate Service Rules in G.O. Ms. No. 368 Revenue (Endowments III) Department, dt. 16-2-1978, in exercise of its powers under Section 107 read with sub-section (5) of Section 27 of the Andhra Pradcsh Charitable and Hindu Religious Institutions and Endowments Act, 1966. Those rules provide for categorisation of Executive Officers, the methods of appoint-ment, qualifications as also the appointing authority. Rule 5 of those Rules provides that the Commissioner Endowments Department shall be the appointing authority in respect of the Executive Officers, Grade-I to Grade-V. The Bench decision referred to above no longer precludes the Commissioner from exercising the powers of appointment of Executive Officers. It is important to note that the wording of S. 29 is different now, unlike in S. 27(2)(b) of the 1966 Act, there is no provision of classification and grouping of institutions 'in accordance, with the rules prescribed by the Government in that behalf.' We are not concerned with any such classification or grouping in the absence of rules, framing of which for that purpose was obligatory.
12. A latter Division Bench in the judgment in W. A. No. 1715/88, held that provision in S. 29 of A. P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 will become operative only when Rules are prescribed under S. 33 of the Act. If there is no repugnancy between S. 27 of the 1966 Act and S. 29 of Act 30 of 1987 -- I have found that there is no repugnancy since both provisions envisage rules to be framed for appointment of Executive Officers including the appointing authority the provisions of 1978 Rules framed under the 1966 Act will continue to be in force. In that event, the appointing authority is the Commissioner of Endowments and it is he who has passed the orders impugned in this writ petition. If the 1978 Rules continue, there is no absence of power in the Commissioner to effect appointments.
13. I am bound to follow the above two Division Bench decisions and cannot accept the decision in Vasudeva Prasad v. Commr. of Endowments (1990 (2) APLJ (SN) 18(2) (supra), to have laid down the law correctly. Hence 1 dismiss the writ petition for the reasons stated above. No costs. Advocate's fee Rs. 250/-
14. Revision dismissed.