ORDER In this petition, petitioners have sought for to issue a writ of certiorari to quash Annexure-H, dated 27-1-2001 passed by the 2nd respondent and to issue a writ of mandamus directing the respondent/authorities to appoint poojaries from amongst eight banas in consonance with the order passed by this Court in W.P. Nos, 5578 and 5941 of 1975, dated 6-11-1984 at Annexure-A and also to issue a writ of mandamus to the respondent/authorities to frame necessary scheme for regularisation of performance of pooja and services of the poojaries by determining the emoluments and perquisites as per Section 11 of the Renuka Yellamma Devasthana (Administration) Act, 1974 and for such other orders, 2. Petitioner 1 is said to be a registered association comprising of poojaries of Sri Renuka Yellamma Devi and other satellite temples at Yellammana Gudda in Saundatti Taluk,Belgaum District. Petitioner 2 is the member of petitioner I-association. Petitioner 1 is said to be a registered association comprising of poojaries of Sri Renuka Yellamma Devi and other satellite temples at Yellammana Gudda in Saundatti Taluk,Belgaum District. Petitioner 2 is the member of petitioner I-association. According to the petitioners, they are performing poojas, archanas and other rituals of the said temple since time immemorial; the priests and poojaries of the said temples were originally shivaits and in course of time they became veerashaivas, later they were known as Adi Banajigas, JaIjepara Padadi Bagi, which is a separate sect confined to poojary families; the daily rituals and occasional worships do not fall directly within the category of Shaivagama which is followed in Shiva temples in South India; though the rituals do involve vedic and puranic manthras as illustrated in the book called Renuka Panchanga including Sahasranama, Astothara Stotra and other Sanskrit rhymes prescribed in Scand purana, Pampa purana and Vayu purana as well as dharmathantra but they are not particularly prescribed in any agamas; but, by practice they were followed by poojaries in performance of pooja and has been continued by succession in their families and petitioner also well-versed in performance or rituals, poojas and occasional worships and functions in accordance with their customs and traditions accepted and prevailing in the said temple; the temple has an impact of jainism and shaivism; till 1903, the poojaries were alone performing the pooja and also administering the affairs of the temple; in 1903, as there were some disputes, a panch committee was constituted in pursuance of the Court order and there also the poojaries were being treated as important persons; later, in the year 1935, a scheme was framed and a Commissioner was appointed in the matter of administration of the temple and sharing of the offerings by panchas and poojaries; however, thereafter, in the year 1950, the Bombay Public Trusts Act came into force and the temple was registered under the said Act; thereafter, in the year 1974 the act was promulgated by the State Government called the Renuka Yellamma Devasthana (Administration) Act, 1974; as per Section 4 of the said Act, an Executive Officer was appointed for the maintenance of the temple and appointment of poojaries and other staff; under the provisions of the Act, no power was conferred on any of the parties for removal of existing poojaries or for disturbing their rights; however, the provisions of the Act interfered with the rights already vested in the poojaries in the matter of endowments which according to poojaries was fundamental right to property and a right of profession; as such they preferred writ petitions questioning the constitutional validity of the Act in W.P. Nos. 5578 and 5941 of 1975; in the said petitions after noticing several issues relating to the custom, usage and practice it was ordered that poojaries have to be the persons from 8 banas and accordingly, by order dated 6-11-1984 it was suggested to appoint persons only from amongst 8 banas and outsiders would be appointed only in the event of poojaries not being fit and suitable or not being available fot' appointment from-amongst 8 banas. 3. According to the petitioners, although there was an order passed by this Court there is no change in the existing position and the same has been continued as usual; in the year 1986, the Executive Officer issued notices to some of the poojaries calling upon them for appointment; however, no further steps were taken in furtherance of the notice; in the year 1989, an advertisement was issued by the Executive Officer calling for applications for appointment of poojaries as per Annexure-B and pursuant to which, no appointment orders were issued; later in the year 1991, again a dispute arose regarding the rights of the poojaries and the respondent-Executive Officer literally prevented the poojaries from receiving the offerings; as such, W.P. No. 2195 of 1991 was filed by petitioner 1 wherein since the pleadings were insufficient the same was withdrawn and another W.P. No. 25479 of 1991 was filed questioning the constitutional validity of the provisions of the Act; in the meanwhile, respondents appointed 7 members from amongst the poojaries as per Annexure-D as against several other members to defeat the rights of the petitioners and to the writ petition filed by the petitioners, respondents filed statement of objections stating that they have made appointments and the said persons are performing the pooja. According to the petitioners, to defeat their claim, the respondent/authority has appointed respondents 5 to 18 on daily wages, which appointments were subject to the result of the writ petition and the said appointments are against the custom, usage and also contrary to the order of the Division Bench of this Court at Annexure-A. Further, during the pendency of the Writ Petition No. 25479 of 1991 in order to resolve the dispute between the poojaries and the Trust, a resolution was passed on 29-12-1996 recognising the poojaries as customary poojaries and further agreed to appoint them by providing necessary amenities which is as per Annexure-G; the poojaries appointed on daily wages i.e., respondents 5 to 18 under the apprehension that they may not be continued as poojaries filed an appeal under Section 17 of the Act before the Endowment Commissioner questioning the resolution passed by the Trust wherein without impleading the petitioners and without giving any notice, the said appeal came to be allowed holding the resolution passed by the Trust as illegal; the filing of the appeal by respondents 5 to 18 was noticed by the petitioners only during February 2001 when the order came to be enforced against them and W.P. No. 25479 of 1991 pending before the Single Bench was referred to the Division Bench. The Division Bench noting that the similar writ petitions in W.P. Nos. 5578 and 5941 of 1975 challenging the constitutional validity were disposed of, held that petitioners could not re-agitate the same once again in W.P. No. 25479 of 1991 and accordingly, dismissed the petition on the ground of constructive res judicata; after the disposal of W.P. No. 25479 of 1991 petitioners made a representation to the respondents for making appointment and to recognise them for receiving the benefits as per the provisions of the Act at Annexure-K; according to the petitioners, despite the decision of this Court requiring the respondents to appoint persons from family of poojaries among 8 banas, no action has been taken by the respondents and in turn, their legitimate rights have been denied and further no steps are taken by the Executive Officer to act in consonance with the direction issued by this Court. Hence, the petition. 4. Hence, the petition. 4. Statement of objections was filed on behalf of respondent 4-the Executive Officer wherein it is stated that the contention of the petitioners that members of petitioner 1-Association are performing the pooja and other services of Shree Renuka Yellamma Devi Temple and other deities is not true; at present 14 persons who have been appointed as archakas are performing the pooja and other services of the main deity; petitioners have not produced any document to the effect that petitioner 1 is a registered Association; there are only 20 temples including the main temple and not 76 temples in the vicinity of the temple premises; the contention that the present poojaries of the main shrine were originally shivaits and they became veerashaivas later is without any basis; performance of pooja of all the temples is according to veerashaivagama which involves sahasranama, astothara stotra and other sanskrit rhymes; as per the order dated 6-11-1984 passed in W.P. Nos. 5578 and 5941 of 1975 an opportunity was given by respondent 4 appointing eight archakas amongst the banas of poojaries and those archakas have not joined the duties despite issuance of several reminders as per Annexure-R14, as such, in order to perform the pooja to Shree Renuka Yellamma Devi and other deities it was necessary to appoint fit and suitable archakas in the interest of devotees and public, as such, 14 well-qualified archakas were appointed as per Annexures-R15 to R26 and even the Endowment Commissioner had issued a circular prescribing the qualification for the post of archakas; on that basis respondents 5 to 16 and 18 qualified in agama pravara and agama praveena were appointed and on such appointment they are performing pooja on following the rituals. It is further stated that even prior to 1903 there was a panch committee constituted comprising of members of various communities likes brahmin, veerashaivas etc., who were managing the affairs of the temple; since dispute arose between the committee members and certain poojaries, several suits were filed and thereafter, a scheme was framed by the District Court, Belgaum regarding the management of the temple and further during 1950, the Bombay Public Trust Act came into existence and the temple was registered as a Public Religious Trust; thereafter, in 1974, a separate Act was enacted to manage the temple, thereby, for the first time, power was conferred on the Trust as per Section 4 and also on the Executive Officer in the matter of receipt of offerings and maintenance of temple under the provisions of Renuka Yellamma Devasthana (Administration) Act, 1974 no power is conferred on any of the parties for removal of the existing poojaries or for disturbing their rights and the said Act is applicable for the administration and control of the temple affairs. Accordingly, denying all the averments stated that the appointment of respondents 5 to 16 and 18 and their performance of pooja is legal and lawful according to veerashaivagama cult and except respondent 17 all other respondents are performing pooja to the main deity and other deities and in order to obey the directions of this Court in W.P. No. 5578 of 1975 some poojaries were appointed, but they did not wish to serve the temple as such, later, qualified persons were appointed as archakas and they are serving the temple since 1991 on wards and there cannot be any occasion to remove them or to make any fresh appointment. Accordingly, resisted the petition. 5. Heard the Counsel for the respective parties. 6. It is the submission of the learned Counsel for the petitioners that although this Court in the earlier set of writ petitions filed had issued directions to appoint the poojaries from among the 8 banas of the petitioners, respondent 4 appointed the other respondents in utter violation of the direction issued by this Court and the persons so appointed on daily wage basis do not belong to any of the 8 banas and the provisions of the Act if any permitting the other persons to perform the pooja is against the fundamental rights of the petitioners in carrying out their profession. In the earlier writ petition even the constitutional validity of the Act was questioned and this Court after noticing several issues relating to custom usage and practice has disposed of the writ petitions directing to appoint the persons among 8 banas. In the year 1989 pursuant to the direction of this Court although the Executive Officer has notified for appointment, but, no steps were taken to make the appointments and the appointment made thereafter in the year 1991 is without any basis and without acting upon the earlier notification issued. Further submitted that the petitioners/association has got all the requisite qualification, ignoring the same and the direction of this Court, the act of appointing the other respondents as poojaries is illegal. 7. Per contra, on behalf of the contesting respondents and also respondent 4 it is argued that despite the notification issued and some 8 persons were appointed from the banas of the petitioners for the reasons known to them they did not continue in the profession and respondent 4 in pursuance to the directions of this Court and as per the provisions of the Special Act enacted for the said purpose and as per the requisite qualification mentioned therein, appointed respondents 5 to 18 and that they are looking after the affairs and daily rituals of the temples and that there .is no such illegality in the order passed. 8. Having heard the Counsel for the respective parties, let me consider, whether any illegality has been committed by respondent 4 in appointing the respondent poojaries to perform the poojas in the temples at Shree Renuka Yellamma Gudda? 9. It may not be necessary to dilate the matter as to the averments in the petition. AE, per the arguments of the petitioners since time immemorial the performance of pooja to the temples at Renuka Yellamma Gudda was among the 8 banas and the appointment of other poojaries by respondent 4 is in contravention of the direction of the Division Bench of this Court in W.P. Nos. 5578 and 5941 of 1975 disposed of on 6-11-1984 and also against the customary rights of the petitioners. 5578 and 5941 of 1975 disposed of on 6-11-1984 and also against the customary rights of the petitioners. Insofar as challenging the constitutional validity of some of the provisions of the Renuka Yellamma Devasthanam (Administration) Act, 1974 and the Renuka Yellamma Devasthanam (Administration) Rules, 1975 framed thereunder, this Court in a Division Bench judgment in W.P. No. 25479 of 1991 by order dated 24-11-2000 declared the said writ petition as hit by constructive res judicata. As such, the validity of the provisions of the said Act cannot be gone into as to the rights vested in the Executive Officer in the matter of appointment of poojaries. The definition of Poojari under Section 3(10) of Renuka Yellamma Devasthana (Administration) Act, 1974, refers to, a person who renders the customary worship or service to the main deity and other minor deities and under Section 13 of the said Act, the powers and duties of the Executive Officer and other officers is defined and apart from that there is also provision for establishment of board of trustees tor the administration of Devasthanam. Further, as per Section 14, all the appointments of poojaries and other servants of Devasthanam shall be made in accordance with the rules made under this Act. Thus, the Act empowers the Board or the Executive Officer for the appointment of poojaries as per the rules. Might be that in W.P. Nos. 5578 and 5941 of 1975 disposed on 6-11-1984 it was sought for to appoint the poojaries and sevkaris of Sri Yellamma Temple from among the 8 ban as or branches of poojaries and it was also ordered to the effect that the authorities may also appoint the outsiders in the event of fit and suitable members if the persons from among the members of the banas or branches not being available and the persons so appointed either as poojaries or as sevkaris should be governed by the relevant statutory provisions and the scheme framed thereunder. Even the Counsels appearing for the parties therein shown to have agreed that there would be no difficulty in accepting such suggestion made by the Court, the 1974 Act was enacted for the purpose of administration of temple wherein the constitutional validity of the Act was in question at that time this Court by the Division Bench had suggested a formula for which the respondent-authority as well as the petitioners then appearing have agreed. That sets the position of law even after the enactment of the Act of 1974 insofar as the appointment of archaks are concerned. The stand taken by the respondents is that earlier when notices were issued and opportunity was given to appoint the archaks amongst the branches of the banas and also time was given to join the duties, the appointed archakas have not joined their duties. As such, 4th respondent proceeded to appoint the respondent/poojaries. The specific stand of the petitioners is that during 1989 and advertisement was issued by the Executive Officer calling for applications for appointment of poojaries as per Annexure-B and in pursuance thereof poojaries made application, however, no appointments were made and during 1991 in view of the dispute arose regarding the rights of poojaries W.P. No. 25479 of 1991 was filed by the petitioners and others and according to them in order to deny their claim respondents 5 to 18 are appointed on daily basis and the said appointments were subject to the result of the writ petition and the poojaries so appointed on daily wages were sought to implead in W.P. No. 25479 of 1991 to agitate their rights which application came to be dismissed, wherein, the respondents also have admitted that the 7 poojaries who were appointed from amongst the 8 banas are along performing the poojas. However, the said writ petition was referred to the Division Bench wherein it came to be dismissed on the ground of constructive res judicata in view of the judgment rendered in W.P. Nos. 5578 and 5941 of 1975. 10. The fact remains that preference should be given to appoint the poojaries for the temples at Yellamma Gudda from among 8 banas/branches of Poojaries as per the decision of the Division Bench of this Court in W.P. Nos. 5578 and 5941 of 1975, disposed of on 6-11-1984 and if fit and suitable persons are not there, then the persons from other categories have to be appointed. 11. 5578 and 5941 of 1975, disposed of on 6-11-1984 and if fit and suitable persons are not there, then the persons from other categories have to be appointed. 11. If the appointments made during 1991 or thereafter is on temporary basis subject to the result of the writ petition, then respondent/authority has to renotify for the appointment of poojaries from among 8 banas/branches and also should reinvite applications from the present poojaries who are already discharging their duties and if in the event the required number of poojaries are not available from among the 8 banas, then the respondent/authority has to appoint the poojaries from the persons who are discharging the duties who are said to be outsiders on receipt of such applications, in accordance with law. The appointments if any made by the respondent-authority of respondents/poojaries on temporary basis to fill up the lacuna would be treated as only to continue with the rituals. However, in view of the undertaking by the respondent/authority before the Division Bench of this Court, they may have to adhere to the same in giving priorities to the people from among 8 banas and if in case fit and suitable persons are not available then only other qualified outsiders would be appointed. Even in future as and when vacancy arises preference should be given to 8 banas. The respondent/authority shall take action to appoint archaks within three months from the date of receipt of this order as indicated above. 12. Accordingly, petition is disposed of.