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R.RAMSUNDAR versus THE JOINT DIRECTOR OF HIGHER

High Court of Madras

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R.Ramsundar v. The Joint Director of Higher - WRIT PETITION No.6938 of 2001 [2002] RD-TN 911 (22 November 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 22/11/2002

CORAM

THE HONOURABLE MR. JUSTICE P.K.MISRA

WRIT PETITION No.6938 of 2001

AND

WMP.NOs.9907, 10816 & 20954 OF 2001

R.Ramsundar,

President,

Swami Vivekananda Vidyalayam

Higher Secondary School,

Vairichettipalayam,

Thuraiyur Taluk .. Petitioner -Vs-

1. The Joint Director of Higher

Secondary Education,

College Road, Chennai-600 006.

2. The Chief Educational Officer,

Madurai Road, Trichy.

3. The District Educational Officer,

Musiri.

4. Dr.N.Rangarajan

(R4 impleaded as per order of Court

dated 11.6.2001 in WMP No.10815 of 2001).. Respondents Petition filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorarified Mandamus for the reasons stated in therein.

For Petitioner : Mr.K.M.Vijayan, Senior Counsel for M/s.La Law. For Respondent-1 to 3 : Mr.S.P.Prabakaran,

A.G.P.,

For Respondent-4 : Mr.M.Kalyanasundaram,

Senior Counsel for

Mr.G.Sethuraman.

:J U D G M E N T



This writ petition has been filed for quashing the order dated 30.3 .2001 in proceedings No.Na.Ka.14552/A4/2001 and for the issue of a Writ of Certiorarified Mandamus to the respondents 1 to 3 and to forbear them from interfering with the powers of the petitioner school in the matter relating to appointment and other incidental powers as envisaged under Tamilnadu Private School (Regulation) Act 1973.

2. In 1950 Swami Vivekananda Vidyalayam Higher Secondary School was established by late S.R.Nagi Reddiar, the grandfather of the petitioner. It is not disputed that from 1950 till 1963 the grandfather of the petitioner was the Secretary and from 1963 to 1976, the father of the petitioner was the Secretary. It is claimed that after 1976, the mother of the petitioner is continuing as the Secretary. In 1977, paternal uncle of the present petitioner, the present fourth respondent was appointed as Headmaster of the School. The spate of litigation relating to school started in 1997, when O.S.No.155 of 1997 was filed by the present fourth respondent for declaration that the Managing Committee of the School has not been validly formed. In Interim Application No.420 of 1997, the Civil Court observed that the Secretary is at liberty to convene the School Committee. Subsequently, another suit viz., O.S.No.327 of 1997 was filed by the present fourth respondent claiming that he was the President of the Educational Agency of the School. Both the suits are stated to be pending. On 15.5.1998, the fourth respondent filed W.P.No.7220 of 1998 seeking for direction to appoint a Special Officer for the school. The said writ petition and connected writ petition were disposed of on 9.9.1998 wherein the learned Single Judge inter alia directed the Government to appoint a Special Officer. The aforesaid common order was challenged by the School in W.A.Nos.1263 and 1264 of 1998 and an order of status-quo was passed. Subsequently, by an order dated 24.3.1999, the Chief Educational Officer passed an order according approval to the managing committee. On 22.12.1999, the Writ Appeal Nos.1263 and 1264 of 1998 were disposed of with the observation that there was no necessity to appoint a Special Officer as the matter was pending before the Civil Court and can be dealt with by the Civil Court. Pursuant to the abovesaid observation, on 7.3.2000, the Chief Educational Officer passed order permitting the management to function as before and the order relating to direct payment was withdrawn. W.P.No.18673 of 2000 filed by the fourth respondent was disposed of at the stage of admission on 7.11.2 002 by directing that representation filed for appointment of Special Officer should be considered. Writ Appeal No.2236 of 2000 which was filed by the management against the order dated 7.11.2000 was disposed of by the Division Bench by directing the authorities to consider the legality, propriety and tenability of the representation of the present fourth respondent. Acting upon the direction in W.P.No.18673 of 2000, the Chief Educational Officer passed an order on 30.3.2001 for direct payment, which has been challenged in W.P.No.6938 of 2001.

3. The impugned order is to the following effect:- “ . . . As per the orders of the High Court in W.P.No.18673/2000 filed by Mr.N. Rangarajan, Ex.Headmaster of S.V.V. Higher Secondary School, Vairichettipalayam, Hon’ble High Court by its order on 7.11.2000 had directed the 4th respondent the chief educational officer to consider passing direct payment to the school within a period of 4 months. Hence, as per proceedings of the Director referred above, since the issue of educational agency disputed in the suit is not finalised and since the Joint Director (Higher Education) has not approved the educational agency from 1996, it is ordered that the District Educational Officer, Musiri shall function directly to issue the grant due to the teachers and advance, festival advance, surrender leave benefit, other leave benefits, yearly increment, re-appointment, pensionary benefits and other incentives as a interim measure till orders are issued regarding appointment of special officer. . .”

4. It has been contended by the learned counsel appearing for the petitioner that the impugned order has been passed without assigning any reason and without following the principles of natural justice.

5. The Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 contains several provisions relating to management of the school. Section 18-A contained in Chapter IV-A relates to appointment of Special Officer in certain cases. Action under Section 18-A can be taken by the Government on receipt of a report from the Director of School Education or otherwise. Before taking such action, the Government is to be satisfied that the Management of any private school is responsible for mal administration, lapses or irregularities as evident from the provisions contained in Section 18-A(1)(a)(i). Similarly, as contemplated in Section 18-A(1)(a)(ii), the Government is also entitled to take action if it comes to the conclusion that the management of the school has neglected to discharge any of the duties imposed on the management or to perform any of the functions entrusted to such management by or under this Act or any rule made thereunder. However, such action can be taken by the Government for reasons to be recorded in writing after giving opportunity to the Management to make representation. The suspension order as contemplated in Section 18-A is to remain in force for a particular period and when such an order of suspension is passed, a Special Officer is to be appointed by the Government. It is obvious that Section 18-A relates to suspension of management.

6. Section 34 of the Act on the other hand contemplates taking over management of private school. Before taking any action under Section 34, the Government is required to be satisfied that the educational agency of any private school has neglected to discharge any of the duties imposed on, or to perform any of the functions entrusted to, that agency by or under this Act or any rule made thereunder. The proviso to Section 34(1) makes it clear that before taking any action under Section 34(1), the Government is required to be satisfied that suspension of management under Section 18-A would not be sufficient. Section 34(2) makes it clear that before taking action under Section 34 (1), the Government is required to give an opportunity of making its representation.

7. It is evident that Section 18-A and Section 34 require particular conclusion to be reached by the Government after giving opportunity of making representation. In the present case, the impugned order does not purport to be either under Section 18-A or under Section 34. The respondents have also not tried to justify the order by invoking Section 18-a or Section 34. At any rate, the impugned order also does not show that the requirements either under Section 18-A or under Section 34 were kept in view while passing the impugned order.

8. The only other provision which is relevant is Section 53-A. The provisions are extracted here under :- 53-A. Settlement of dispute as to educational agency, etc.-- (1) Notwithstanding anything contained in Section 53, whenever any dispute as to the constitution of any educational agency, or as to whether any person or body of persons, is an educational agency, in relation to any private school, or as to the constitution of a school committee, or as to the appointment of the secretary of the school committee, arises, such dispute may be referred by the persons interested or by the competent authority to the civil court having jurisdiction, for its decision.

(2) Pending the decision of the civil court on a dispute referred to it under sub-section (1), or the making of an interim arrangement by the civil court for the running of the private school, the Government may nominate an officer to discharge the functions of the educational agency, the school committee or the secretary, as the case may be, in relation to the private school concerned.”

9. A perusal of the aforesaid provisions makes it clear that any dispute as to the constitution of any educational agency or as to whether any person or body of persons, is an educational agency, in relation to any private school, or any dispute as to the constitution of a school committee or appointment of the secretary of the school committee, may be referred by the person interested or by the competent authority to the civil court. Section 53-A(2) makes it clear that the civil court can make any interim arrangement for the running of the private school. The aforesaid provision also makes it clear that pending the decision of the civil court in a dispute under Section 53A(1), or pending making of any interim arrangement for running the private school, the Government may nominate an officer to discharge the function of the educational agency, the school committee or the secretary, as the case may be. Even though Section 53-A(2) does not specifically provide for giving any opportunity, by very nature of things, it is required that the Government should provide an opportunity to the person or authority likely to be affected before taking action under Section 53-A(2). Moreover, as per the order passed by a Division Bench in W.A.No.2236 of 2000 the Government was required to consider the propriety, legality and tenability of the representation. The reasons indicated in the impugned order do not appear to be germane. The order appears to have been passed in a most cavalier manner without keeping in view the order passed by the Division Bench in W.A.No.2 236 of 2000.

10. Learned counsel appearing for the respondents sought to justify the order by referring to the provisions contained in Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, particularly Annexure III of the said Rules. Rule 18 of the aforesaid Rules indicate the procedure for payment of pay and allowances of teachers and other persons employed in private schools as found in Annexure III. Paragraph II of Annexure III lays down that under special circumstances, the District Educational Officer concerned may make direct payment to the Headmaster of a school or to the teachers of a school. This power is vested on the District Educational Officer and not the Chief Educational Officer. Moreover, even assuming that such power can be exercised by the Chief Educational Officer, this can be done only under special circumstances. Nothing has been brought on record to indicate that there has been any special circumstances for taking such action.

11. Learned counsel appearing for the respondents relied upon a decision of a learned single Judge of this Court reported in 1996 WLR 43 9 (P. KANDASAMY v. THE DISTRICT EDUCATIONAL OFFICER, TIRUNELVELI AT PALAYAMKOTTAI AND ANOTHER) and contended that there is no right vested on the petitioner to receive direct payment on behalf of the teachers and the writ petition is not maintainable. In the aforesaid decision, the learned single Judge took note of the facts and circumstances of the case and concluded in paragraph 11 as follows :-

. . . On an over all consideration of all the facts it is quite clear that there are special circumstances which justified an order being made directing the payment of the salary to the teachers by the authorities directly. The aid given is meant for the teachers. There is no vested right in the petitioner to obtain amounts from the State. Petitioner is not deprived of any right by the direct payment of salaries. It is in the interest of the institution and of the teachers which are far more important and these interests are well served by the impugned order.”

12. A perusal of the aforesaid decision, particularly paragraph 11, which is extracted above, makes it clear that this Court found that there were sufficient special circumstances justifying the action taken by the District Educational Officer (not the Chief Educational Officer as in the present case) directing the payment of salary to the teachers by the authorities directly. Said decision does not lay down any universal rule that in no case the management committee can challenge the order passed by the District Educational Officer regarding direct payment.

13. For the aforesaid reasons, the writ petition is allowed and the impugned order dated 30.3.2001 is quashed. However, there would be no order as to costs. Consequently, the connected WMPs are closed. Index: Yes

Internet : Yes

dpk

To

1. The Joint Director of Higher

Secondary Education,

College Road, Chennai-600 006.

2. The Chief Educational Officer,

Madurai Road, Trichy.

3. The District Educational Officer,

Musiri.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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