Madras High Court
Y.Balachandra Babu vs The District Educational Officer on 28 July, 2006
Author: P.Jyothimani
Bench: P.Jyothimani
BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT DATED : 28/07/2006 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.(MD)No.4816 of 2005, W.P.(MD)No. 11064 of 2005 and W.P.M.P.(MD)Nos.1603, 10902, 5181 of 2005 Y.Balachandra Babu ... Petitioner in WP.(MD)No.4816 of 2005 The Corporate Manager Roman Catholic Schools, "Thedal" 10/8-46 C, Bridge Ward, Near Fire Station, Kuzhithurai, Kanyakumari District - 629 163 ... Petitioner in WP.(MD)No. 11064 of 2005 Vs. 1.The District Educational Officer, Kuzhithurai Educational District at Marthandam, Kanyakumari District. ... 1st Respondent in both the W.Ps. 2.The Corporate Manager, Roman Catholic Schools, "Thedal" 10/8-46 C, Bridge Ward, Near Fire Station, Kuzhithurai, Kanyakumari District - 629 163 ... 2nd Respondent in W.P.(MD)No.4816/2005 3.The Correspondent, St.Antony's High School, Kappukad - 629 162, Kanyakumari District. ... 3rd Respondent in W.P.(MD)No.4816 of 2005 4.The District Educational Officer, Thuckalay Education District, Thuckalay - 625 175, Kanyakumari District. ... 2nd Respondent in W.P.(MD)No.11064/2005 5.Y.Balachandra Babu. ... 3rd Respondent in W.P.(MD)No.11064/2005 (impleaded as per order of Court dated 28.07.2006 in WPMP.1603/2006. PRAYER in W.P.(MD)No.4816 of 2005: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records pertaining to the impugned transfer order of the 2nd respondent in ref.No.EDN/K/CM/FC79/115/2005, dated 31.05.2005 issued to the petitioner, and quash the same and consequently direct the 2nd respondent to re-post the petitioner as School Assistant in the 3rd respondent school namely St.Antony's High School, Kappukadu-629 162. PRAYER in W.P.(MD)No.11064 of 2005: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus, to direct the second respondent District Educational Officer to consider and pass orders on the proposal submitted by the petitioner-management to him dated 21.11.2005 (Seeking approval for the purpose of disbursing grant-in-aid towards the salary for the teacher Y.Balachandra Babu working as B.T.Assistant in St.Lawrence Higher Secondary School, Madathattuvilai) within a reasonable time. !For Petitioners ... Mr.G.R.Swaminathan (In W.P.No.4816 of 2005) ... Mr.Issac Mohanlal (In W.P.No.11064 of 2005) ^For 1st Respondent ... Mrs.Jessi Jeeva Priya, Special Government Pleader (In both W.Ps.) For Respondents (2-3) ... Mr.Issac Mohanlal (In W.P.No.11064 of 2005) :ORDER
W.P.No.4816 of 2005, is filed challenging the transfer order passed by the second respondent dated 31.05.2005 by which, the petitioner who was a school assistant working in St.Antony's High School, Kappukadu, was transferred on administrative ground to St.Lawrence Higher Secondary School, Madathattuvilai and consequently, for a direction against the second respondent to repost the petitioner in the third respondent school, namely, St.Antony's High School, Kappukadu, Kanyakumari District.
2. The case of the petitioner is that he has joined in the third respondent school on 17.08.1979 as a School Assistant and he has served in the said institution for the past 26 years. It is due to the ill-will developed by the second respondent towards the petitioner, there was an order of suspension passed against the petitioner, against which, the petitioner moved before the Civil Court filing a suit in O.S.No.618 of 2004 on the file of the District Munsif Court and the same is pending.
3. According to the petitioner, the third respondent is a single unit school and not forming part of the corporate network. However, the second respondent has been claiming as a corporate management, even though, it is a separate unit.
4. It is also the case of the petitioner that the Diocese of Kottar had earlier filed a writ petition before the Principal Bench of this Court in W.P.No.3990 of 2003 for a direction against the authorities to recognise the status of the writ petitioner and to recognise its status along with 57 educational institutions under the same corporate management and this Court has directed the authorities to consider the representation, and till date, the authorities have not granted such status to the Diocese of Kottar. When the third respondent remains a single unit school, the second respondent by the impugned order dated 31.05.2005 has transferred the petitioner from the third respondent school and by an order dated 01.06.2005, the petitioner was relieved.
5. The impugned order is challenged on various grounds including that the third respondent is an aided school from the State Government and though it is a minority institution it is discharging the public duty and the order of transfer is against the Tamil Nadu Private School (Regulations) Act and Rules made thereunder. Since the third respondent school is not coming under the corporate management category, the impugned order of transfer from the third respondent school is on the face of it illegal.
6. The petitioner would also state that the transfer is not an incident of service and when there is no corporate management and the contract does not provide the same, there cannot be a transfer from one unit to another. That apart, the petitioner would also state that the order of transfer is punitive in nature.
7. The second respondent in the writ petition in W.P.No.4816 of 2005 has approached this Court by way of filing Writ Petition in W.P.No.11064 of 2005 praying for a direction against the second respondent viz., the District Educational Officer, Kanyakumari District to consider and pass orders on the proposals submitted by the petitioner dated 21.11.2005 for disbursing grant-in- aid towards the salary of the teacher Y.Balachandra Babu writ petitioner in W.P.No.4816 of 2005, working as B.T.Assistant in St.Lawrence Higher Secondary School, Madathattuvilai. The said writ petition is filed consequent to the order of transfer dated 31.05.2005 by which the writ petitioner in W.P.No.4816 of 2005 was transferred from the third respondent school which is the subject matter of dispute in the said writ petition in W.P.No.4816 of 2005.
8. The second and third respondents in W.P.NO.4816 of 2005 who are the writ petitioners in the other writ petition in W.P.No.11604 of 2005 have filed the counter affidavit.
9. The case of the second and third respondents is that Roman Catholic Diocese of Kottar is a registered society and a recognised religious minority institution, which is functioning as a corporate body. The Diocese owned and administered 59 educational institutions in the revenue District of Kanyakumari, apart from several orphanages, Homes for the old and the handicapped and other charitable institutions. The Bishop is the educational agency and General Manager of all the educational institutions and he is appointed as the Corporate Manager for the administration of all the schools. The Diocese of Kottar divided into four vicariates namely Mulagumoodu Vicariate, Thiruthuvapuram Vicariate, Kottar Vicariate and Colachel Vicariate for administrative convenience. Later on, Mullagumoodu vicariate and Thiruthuvapuram vicariate were combined together as a single corporate management. All the 57 educational institutions which are presently 59 are now in 2 vicariate brought under the corporative management and there are separate rules and statutes governing the corporative management. According to the second and third respondents all the schools under the control of the corporate management are from the single common unit. The common seniority list among the teachers of all schools are maintained apart from non teaching staff. The staff of each school are transferred from one school to another school under the control of the corporate management without depriving the seniority and affecting any of the services of the teachers as well as the non teaching staff, the seniority of teachers are retained whereever they go. Even for promotion of all the eligible candidates the same will be considered by taking into account their services rendered in all the schools under the control of the corporate management as qualifying service conditions. The Department has also treated the corporate management for all purposes including deployment of staff from one school to another, the promotion or transfer effecting orders by the management have been approved by the Department.
10. The petitioner in W.P.No.4816 of 2005 was working as a B.T.Assistant in St.Antony's High School in Kappukadu till May 2005. Considering the overall educational need of the schools and taking into consideration, the interest of the institutions, the second respondent has decided to transfer the writ petitioner in the academic year 2005-2006 to another school viz., St.Lawrence, Higher Secondary School, Madathattuvilai which is under the same corporate management. The new school to which the petitioner has been transferred is only 15 kilo metres from the petitioner's residence. The petitioner was also relieved pursuant to the said transfer order and is now working in the transferred school. The transfer is effected for the better management and of all the schools under the corporate management and absolutely with no dislocation or harassment. All along, all the schools under the corporate management of the second respondent have been treated as a single unit. However, when the District Educational officer has taken different stand in the affidavit filed in the writ petitioner's suit in O.S.No.618 of 2004 it was misconception. In the interlocutory application, the Additional District Munsif, Kuzhithurai has rejected the said contention in the order dated 28.09.2004. The appeal in C.M.A.No.40/2004 filed was also dismissed by the Sub Court Kuzhithurai. The second and third respondents are also denying the allegations of petitioner's plea is mala fide.
11. The first respondent / District Educational Officer, in both the writ petitions has filed counter affidavit.
12. The case of the first respondent is that the third respondent school as well as the school to which the petitioner has been transferred whereof functioning as a single unit school and not under the corporate management. That apart, it is the case of the first respondent that the schools are functioning as religious minority institutions and the Educational Department cannot interfere with the administration of its schools.
13. It is also the specific case of the first respondent that the St.Antony, Higher Secondary School, Kappukadu has not come under the corporate management of the second respondent and it is treated as a single unit. However, the Educational Department has nothing to do with the transfer.
14. Mr.G.R.Swaminathan, learned counsel for the petitioner in W.P.No.4816 of 2005 would submit that even a reference to the appointment order given to the petitioner on 17.08.1979 shows that he was appointed under the management of the third respondent school and there is absolutely no clause regarding the transfer to any other schools.
15. The learned counsel by relying upon the Full Bench judgment of this Court rendered in The Correspondent, Malankara Syrian Catholic School, Marthandam, Kanyakumari District Vs. J.Rabinson Jacob and others reported in 1998 (3)M.L.J, 595 would submit that the transfer is not an incident of service especially in the circumstance that the minority corporate management is not recognised by the authorities and the minority institutions are not affiliated as one unit and therefore, cannot transfer the teachers in different units established and administered by it and such power is not inherent power of transfer. According to the learned counsel, inasmuch as in the appointment order stated above, there is no provision regarding the petitioner from one school to another school, the transfer cannot be treated as one of inherent in nature.
16. According to the learned counsel for the petitioner, the judgment of the Division Bench of this Court in the Manager R.C.Schools, Salem Social Services Society, Alagapuram, Salem and another Vs. G.Vincent Paulraj, Salem -7 and another reported in 2003 (4) CTC 65 holding that the policy of the Tamil Nadu Private Schools(Regulations) Act, 1973 does not prohibit more than one school being run by the same corporate body, has no application on the facts and circumstances of the case, for the reason that the order of appointment issued to the petitioner was by the Manager of St.Antony High School, Kappu Kadu and not by the second respondent.
17. The learned counsel also relied upon a letter of the Bishop and the General Manager Diocese of Kottar, dated 22.05.2000, quoting the resolution of the Kottar, Diocese, stating that even though all the schools were under the Kottar R.C. Diocese every school has been treated as a single unit and in that view of the matter, it was decided by the Diocese to apply for recognition of the Corporate management. Further, the learned counsel would state that based on the said resolution, the second respondent has moved this Court by filing W.P.No.3990 of 2003 for a direction against the educational authorities to recognise the status of the 57 educational institutions to be treated under the control of the corporate management and this Court in the order dated 17.03.2003 while categorically concluding that the authorities has not yet passed any order has directed the authorities to pass orders. While it remains a fact that the authority has not passed any order recognising the corporate status of the second respondent, in addition to the order of appointment given to the petitioner, factually the second respondent has not been recognised as a corporate management and in view of the same, the third respondent should be treated as single unit. Therefore, the transfer made under the impugned order is not sustainable. He would also submit that a decision given in interlocutory application by a civil Court which has been confirmed on appeal in C.M.A.No.40 of 2004 even though the same may be true, that was only in the interlocutory stage, and not a decision on merit, since the suit in O.S.No.618 of 2004 is still pending adjudication. Therefore, according to the learned counsel for the petitioner, inasmuch as the transfer is not an incident of service and even on factual position also, the second respondent can never be treated as a corporate management and in view of the same, he would contend that the impugned order of transfer has no legal basis whatsoever.
18. Per contra, Mr.Issac Mohanlal, learned counsel appearing for the second and third respondents, who are the petitioners in W.P.No.11064 of 2005 would submit that it is the diocese which is the educational agency and the second respondent is having a common seniority list of all teachers in all the constituent schools numbering 59 schools. The transfer which is made for the purpose of better administration of all the schools and not as a punishment. On the other hand, the transfer has been effected for the purpose of utilising the services of the expertise teaching of the petitioner. It is also his contention that even for the purpose redeployment, the second respondent has been treated as a corporate management and in these years all the 57 schools have been controlled by the corporate management namely, the second respondent. By effecting the impugned transfer on the petitioner, the petitioner's service condition is not affected and it does not involve a stigma on the career of the petitioner.
19. That apart, the petitioner having accepted the transfer and is now working in the transferred school for the past one year. On the other hand, another person posted in the third respondent school in the place of the petitioner and his transfer has been approved. It is also the case of the learned counsel for the second and third respondents that the petitioner is very well aware that all the schools were under the control of the common corporate management and the common seniority has been prescribed in these years and at no point of time, the petitioner ever raised his objection.
20. The learned counsel would rely upon the rules and regulations for schools in the corporate management of Roman Catholic Diocese of Kottar to substantiate the case that ever since the said rule has come into effect namely, 22.05.2000, the corporate management has been in existence. The rule specifically states that the secretary cum treasurer has power of effecting transfer of any of the members of staff among the schools constituted under the corporate management. The petitioner having become the teacher and working under the second respondent management cannot plead ignorance of the same. The learned counsel further, would rely upon the communication of the Chief Educational Officer dated 24.06.2005 by specifically stating the second respondent as a corporate manager or Roman Catholic Schools, Kuzhithurai. He would also rely upon another communication of the Chief Educational officer addressed to the second respondent dated 24.06.2005 under which while considering the plea of redeployment for the year 2004-2005, the Chief Educational Officer has specifically stated that the second respondent as corporate management and stated that there are no surplus teachers. In view of the said factual position, according to the learned counsel for the second and third respondents, it cannot be said that the educational authorities have not recognised the second respondent such corporate management of all the schools under its control. According to the learned counsel, there is absolutely no provision under the Tamil Nadu Private Schools (Regulations) Act and Rules for the purpose of approval of the corporate body from the educational authorities. He would also rely upon the judgment of this Court rendered in The Management of Papanasam Labour Welfare Association Higher Secondary school Vikramasingapuram - 627 425 rep by its Secretary Vs. The Chief Educational Officer, Tirunelveli-9 and 6 others reported in 1998 (III) CTC 753. In that case, while referring about the earlier judgment of this Court rendered in The Management of Hindu and Saraswathy Middle Schools etc. Vs. Government of Tamil Nadu in W.P.No.9649 of 1982 by order dated 05.10.1990 holding that in respect of the schools under the corporate management two separate school committees are not necessary, this Court has specifically stated that "The law does not say that the petitioner must get approval as corporate body".
21. Therefore, according to the learned counsel for the second and third respondents, there is no prohibition of constitution of the corporate body under the Act and therefore, it should be deemed to be a permission granted to have such corporate management. The learned counsel would further state that the Full Bench of this Court rendered in The Correspondent, Malankara Syrian Catholic School, Marthandam, Kanyakumari District Vs. J.Rabinson Jacob and others reported in 1998 (3)M.L.J, 595 even though has taken the view that each school should be treated as a separate unit, has ultimately decided that the question whether transfer between one school from among other corporate school is an incident of service has to be taken in the facts and circumstances of each and every case and is a question of fact. That was a case wherein 13 schools in the District of Kanyakumari under the control of M.K. Syrian Catholic Diocese were recognised individually as a separate entity. The management has maintained seniority list for each individual school as a unit and there was no common seniority list for all the schools run by the society. Therefore, according to the learned counsel for the second and third respondents, it was based on the facts and circumstances of the said case, that the Full Bench of this Court has come to the conclusion regarding the corporate management and transfer among the schools whereas considering the 57 schools under the control of the second respondent they are treated as one corporate body and there has been a common seniority list among the teachers of all the schools and by effecting the transfer, the service conditions of the teachers are not affected and therefore, according to him, on the facts and circumstances of the present case, the transfer should be treated as an incident of service.
22. Even by applying the ultimate decision of the Hon'ble Full Bench of this Court, according to the learned counsel for the petitioner, even though, the Tamil Nadu Private Schools (Regulations) Act does not contain any word about the corporate body, an analogy to a similar act in respect of colleges viz., Tamil Nadu Private Colleges (Regulations) Act and Rules made thereunder especially Rule 15(c) which used the term "corporate body" of the management. Therefore, according to the learned counsel when the two acts which are similar and in one act namely relates to colleges, the corporate body is used, it should be made applicable to the private schools also.
23. This is apart from the contention raised by the learned counsel that while the Private Schools Act does not prohibit having a corporate management while including a clause in the Rules, it should be deemed to be a permission granted to have the corporate management. It is in this regard, the learned counsel placed reliance on another judgment of the Division Bench of this Court rendered in the Manager R.C.Schools, Salem Social Services Society, Alagapuram, Salem and another reported in 2003 (4) CTC 65. In that case, the Division Bench of this Court while dealing with the Diocese of Salem establishing and administering 43 schools, and considering the right of the corporate management to transfer the teachers from one school to another under its control in accordance with the provisions of the Tamil Nadu Recognised Private Schools (Regulations) Act 1973 has held that the transfer can be resorted to, if it is an incident of service according to the terms of contract between the management stating that the management cannot deprive of their benefits of service prior to the said transfer.
24. The learned counsel would submit that the Division Bench has clearly held that the Full Bench of this Court reported in 1998 3 M.L.J 595 was made applicable only on the facts and circumstances of the case wherein there was no common seniority maintained by the petitioner therein and held that the ratio of the decision of the Full Bench is that the transfer is not prohibited by the provisions of the Act that if in a given case it is shown that the transfer is a condition of the teacher having regard to the terms and conditions of the contract between the parties, then the same is permissible.
25. According to the learned counsel for the second and third respondents, considering the fact that the second respondent/management is maintaining the common and overall seniority list among all the teachers working in the constituent schools, it should be taken that the transfer which is well within the knowledge of the petitioner and other teachers, it should be taken that the transfer is an incident of service in this case.
26. The learned counsel also would rely upon the definition of Educational Agency under Section 2(3) of the Tamil Nadu Recognised Private Schools (Regulations) Act which states as follows:
"3.Educational agency in relation to--
a) any minority school, means any perons who, or body or persons which, has established and is administering or purposes to establish and administer such minority school; and
b) any other private school, means any person or body of persons permitted or deemed to be permitted under this Act to establish and maintain such other private school;"
26. On the other hand, the definition of the term, "educational agency" is defined under Section 2(4) of the Tamil Nadu Private Colleges (Regulations) Act 1976 states as follows:
"4)"educational agency" in relation to--
a) any minority college, means any person who, or body of persons which, has established an is administering or proposes to establish and administer such minority college; and
b) any other private college, means any person or body of persons permitted or deemed to be permitted under this Act to establish and maintain such other private college;"
27. However, in Rule 11(4)(ii) of the Private Colleges Rules, 1976 which states as follows:
"11.Conditions of service, etc., of teachers and other persons in college:.....
4 (i) Promotions in respect of teaching staff shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal, and in respect of non- teaching staff promotions shall be made on seniority basis, provided other conditions regarding qualification are satisfied.
ii) The committee shall fill up the posts by promotion or by direct recruitment. The committee shall, while making promotion, consider the claims of all the qualified teachers in that college. if, however, none of the qualified teachers in the college is found suitable for promotion, the vacancy shall be filled up by direct recruitment by calling for applications from qualified persons through the Press or by calling for a list of candidates from the Employment Exchange by following the rule of reservation ordered by the Government from time to time for direct recruitment.
Explanation:- For purposes of this rule, if an educational agency has established and administered more than one college, then, the colleges under the control of that educational agency shall be treated as one unit".
28. According to the learned counsel for the second and third respondents when once in respect of private colleges where an educational agency runs more than one college and thus controls all the colleges the same shall be treated as one unit. Whileso, it should be taken that private schools also eligible for the said benefits which is given to the private colleges and the said benefits should be extended. In this regard, the learned counsel would submit that the communication of the educational authorities namely, the Chief Educational Officer, cited above, has categorically stated the factual position that the second respondent as a corporative management is running 57 schools.
29. Learned counsel would also vehemently reiterate that inasmuch as it is admitted fact that the overall seniority maintained in respect of all the teachers working in all the 57 constituent schools under the control of the second respondent corporate management and such common seniority is in existence, the impugned transfer is not punitive in character, the service condition of the petitioner is not affected and he cannot have any objection against the same.
30. He would also further reiterate that the said common pool of teachers belonging to all the 57 schools under the control of the second respondent corporate management is in existence for many years and in such circumstances, the terms of employment which should be considered on the factual situation as decided by the Full Bench judgment stated above and as also subsequently explained by the Hon'ble Division Bench of this Court stated above, the power of transfer as exercised in the impugned order should be treated as implied in the present case. By considering the entire facts and circumstances of the case, it should be deemed that there is implied condition of transfer which was known to the petitioner as well as the other teachers.
31. The learned counsel for the second and third respondents submitted by making reliance Rule 15(4) of the Act which clearly states that "in respect of Corporate Body running more than one single unit that body shall be treated as one unit for the purpose of this Rule". According to the learned counsel, even though the said Rule may not be applicable to the second and third respondents institutions which are the minority institutions, the rationale of the Rule contemplated the acceptance of such corporate management under the Tamil Nadu Recognised Private Schools (Regulations) Act.
32. Again, Mr.G.R.Swaminathn, learned counsel appearing for the writ petitioner in W.P.No.4816 of 2005 by way of reply has placed reliance on various judgments to show that specific approval of the corporate management from the educational authorities is required. He would also submit that as far as Rule 15 is concerned, when the same is not applicable to the minority institution, that cannot be taken advantage of by the second and third respondents for the purpose of acting against the general tenets of the Act as also the judicial precedents.
33. The learned counsel would submit that even assuming that the petitioner has made application in 2000, the same can never be treated as if the same is with full knowledge of the teachers. In any event, according to the learned counsel for the writ petitioner, if a law has conferred certain benefit the same cannot be waived. He would also rely upon some other judgments including 1999 Writ.L.R - 219, and 1991 L.W. 180 to show that every constituent school is a single unit as per the provisions of the Act.
34. I have heard the rival contentions of the learned counsels on either side and perused the entire records produced before me.
35. At the outset, it is relevant to point out some of the factual aspects concerning these cases. The third respondent school in W.P.No.4816 of 2005 as also the St.Lawrence Higher Secondary School, Madathattuvilai which are stated to be under the control of the second respondent as their educational agency along with 57 other schools are all private aided minority schools governed by the provisions of Tamil Nadu Recognised Private Schools (Regulations) Act and Rules made thereunder, except those provisions which are not applicable to the minority institutions. The petitioner in W.P.No.4816 of 2005 has enclosed a resolution of the Diocese of Kottar dated 16.05.2000 in which, the Diocese of Kottar has specifically passed the resolution stating that even though, the second respondent educational agency has been controlling all the schools under one educational agency, the educational authorities have been treating each school as individual unit and therefore, it was decided to apply to the educational authorities for approving the second respondent as a corporate management. It was based on the said resolution, in fact, a writ petition was filed before this Court in W.P.No.3990 of 2003 by the second respondent for a direction against the Government as also the Director of School Education and the Director of Elementary Education to declare all the 57 educational institutions under its control as a corporate management. This Court while disposing of the said writ petition by an order dated 17.03.2003 has directed the educational authorities to pass orders on the representation of the second respondent herein dated 22.05.2000 followed by a reminder on 08.11.2002 within a stipulated time.
36. In a suit filed by the petitioner in O.S.No.618 of 2004 challenging the order of suspension, the District Educational Officer, Kuzhithurai, who is the first respondent herein has filed a written statement in November 2004 stating that St.Antony's High School is a single unit management and not a corporate body since the same has not been recognised as a corporate body by the Government or Educational Department. That was the pleading of the first respondent in the said suit filed by the petitioner against the order of suspension passed by the management.
37. The question now to be considered is as to whether on fact, the educational authorities have recognised the second respondent as a corporate management for the purpose of enabling the second respondent to control all the 59 schools as a common educational agency and to treat all the schools as a single unit. In this regard, it is relevant to point out a letter of the Chief Educational Officer in Na.Ka.No.6709/A4/03, dated 14.02.2005. That is the order passed in respect of fixing the sanctioned strength of teachers in respect of the schools under the control of the second respondent viz., Diocese of Kottar. That letter by referring about the proceedings of the Director of School Education in Na.Ka.No.48937/G3/2000, dated 23.03.2002 states as follows:
"ghh;it 1y; Fwpg;gpl;Ls;s gs;spf;fy;tp ,af;Feh; mth;fsJ brayKiwfspy; nfhl;lhW kiwkhtl;l Mh;.rp. gs;spfis xU myfhf vLj;Jf;bfhz;L cghpahf gzpahw;Wk; Mrphpah;fis njitg;gLk; gs;spfSf;F gzpaplj;Jld; khw;wpf;bfhs;s ehfh;nfhtpy; Kjd;ikf;fy;tp mYtyUf;F Miz tHq;fg;gl;Ls;sJ. mjd; tptuk; fj;njhypf;fg;gs;spfspd; nkyhsUf;F Mah; ,y;yj;jpw;F ghh;it 2y; Fwpg;gpl;Ls;s ,t;tYtyff;fojk; thapyhft[k; bjhptpf;fg;gl;Ls;sJ."
38. Therefore, as per the said letter, the Director of School Education in his proceeding dated 23.03.2002 has treated all the R.C. schools under the control of the Kottar Diocese as single unit for the purpose of deciding about the excess teachers in all the schools for the purpose of redeployment. Even though, the said letter refuses to approve the appointment of certain teachers, a reference to the letter, shows that it remains a fact that the educational authority namely, Director of School Education has recognised the second respondent as a corporate management.
39. It is the case of the second respondent in W.P.No.4816 of 2005 that the second respondent is a registered society governed by its rules and regulations and a corporate educational Board has been constituted. It is also the case of the second respondent in the said writ petition which is in fact not in dispute that a common seniority is maintained for the teaching staff as well as non teaching staff working in the various schools separately for each cadre and by transferring the teachers as well as non teaching staff from one school to another under the management of the second respondent and their seniority is not affected and service benefits are also not taken away.
40. The learned counsel for the second respondent in w.P.No.4816 of 2005 has also produced common seniority list of all the schools under the control of the second respondent management as on 01.06.2005 and I find that the seniority of the teachers are not affected and the service conditions are not changed.
41. It is based on the above said facts, it is the contention of the learned counsel appearing for the second and third respondents that when once the impugned order of transfer of the petitioner from the third respondent school to another school under the management as its educational agency was effected, the same cannot be assailed by the petitioner as if the corporate management of the second respondent is not recognised. That apart, it is the case of the second respondent that the service condition of the petitioner is not affected and the transfer is effected within the district and the transferred school is near the petitioner's residence and that pursuant to the impugned order of transfer, the petitioner was relieved from the third respondent school on 02.06.2005.
42. The learned counsel also would submit that the petitioner has been relieved from the third respondent school on 02.06.2005 and the same has been endorsed by the District Educational Officer, Kuzhithurai on 18.11.2005 and in fact, the order of the transfer has been communicated by the correspondent to the District Educational Officer, Thuckalay on 21.11.2005 for the purpose of approval of the transfer. The said District Educational Officer of his letter O.Mu.No.12382/A2/2005, dated 25.11.2005 has also called for certain other particulars and the same have been submitted by the Correspondent to the District Educational officer, Thuckalay on 28.11.2005. In view of the said factual position, according to the learned counsel for the second respondent and considering the earlier recognition of the corporate management of the second respondent by the Director of School Education, the writ petition is not maintainable.
43. Even though, Mr.G.R.Swaminathan, learned counsel appearing for the petitioner in W.P.No.4816 of 2005 would submit that in the appointment order given to the petitioner on 17.08.1979, it has been signed by the Manager St.Antony's High School, Kappukad and such order has not been issued by the second respondent and therefore, it cannot be said that the petitioner has accepted the corporate management of the second respondent, I am of the considered view that the recognition of the second respondent as a corporate management is in the hands of the educational authorities and inasmuch as the factual situation stated above, it cannot be said that the educational authorities have not recognised the second respondent as corporate management. I am of the considered view that there is certainly a force in the argument of the learned counsel of the second respondent in W.P.No.4816 of 2005 in this regard.
44. Therefore, on the facts stated above and especially in the circumstance that the letter for approval of the transfer of petitioner effected under the impugned order is under the consideration of the educational authorities, I have no hesitation to come to the conclusion that the writ petition in W.P.No.4816 of 2005 at this stage is misconceived.
45. Now, the next question which should be considered is about the writ petition filed by the second respondent in W.P.No.4816 of 2005 who is the petitioner in W.P.No.11064 of 2005 seeking for a direction against the second respondent District Educational officer to consider and pass orders on the proposal submitted by the petitioner management dated 21.11.2005 seeking approval for the purpose of disbursing grant-in-aid towards the salary for the teacher (Y.Balachandra Babu) working as B.T.Assistant in St.Lawrence Higher Secondary School, Madathattuvilai.
46. As I have narrated above, in fact, the said proposal is in the form of approval of transfer which is impugned in the first writ petition and the said proposal is still pending with the second respondent in W.P.No.11064 of 2005.
47. On the facts stated above, it goes without saying that inasmuch as, in the letter of the Chief Educational Officer, Nagercoil dated 14.02.2005 referring to the proceedings of the Director of School Education dated 23.03.2002 recognising the petitioner in W.P.No.11064 of 2005 as a corporate body, I am of the considered view that the second respondent cannot take any other decision contra to that.
48. It is in these circumstances, necessary to consider another aspect as argued by the learned counsels. Mr.Issac Mohanlal, learned counsel appearing for the petitioner in W.P.No.11064 of 2005 would state that even assuming that the factual situation is otherwise, by applying the provisions of the Tamil Nadu Recognised Private Schools (Regulations) Rules especially, with reference to Rule 15(4)(ii)(c), in respect of the corporate body running more than one school all these schools under the said body shall be treated as one unit for the purpose of the said Rule 15 which speaks about the qualifications, conditions of services of teachers and other persons.
49. He would also refer to a similar provision under the Tamil Nadu Colleges(Regulation) Rules especially Rule 11(4)(ii) in which, the explanation categorically shows that in cases where the Educational Agency establishes and administers more than one college, all the colleges under the control of that educational agency shall be treated as one unit. Therefore by making an analogy between these two acts which are almost similar, the learned counsel would state that even though the act has not prohibited the formation of such corporate management, by virtue of the enablement given under the rules framed under the Act, the writ petitioner in W.P.No.11064 of 2005 has a definite right to be treated as a corporate unit by treating all the 59 schools under its control.
50. On the other hand, Mr.G.R.Swaminathan, learned counsel appearing for the petitioner in W.P.No.4816 of 2005 would submit that while statute in the form of the Act does not provide for a corporate body, a reference made in the Rule cannot be deemed to be a right on the part of the second respondent viz., Diocese of Kottar to assume itself as a corporate management having control over all 59 schools, unless and until, the said status is approved by the educational authorities. According to him, when once in a suit filed by the petitioner in a Civil Court, challenging the order of suspension, the District Educational Officer has filed the written statement stating that the second respondent Diocese of Kottar is not recognised as a corporate management, it should be presumed that such a status has not been conferred on the second respondent Diocese at all. In that regard, he would rely upon the Division Bench judgment of this Court rendered in W.A.No.122 of 1997, in Sri Kasi Mutt, Educational Agency of Sri Kumaragurubara Swamigal Arts College, Srivaikuntam and Sri Kasivasi SwaminathaSwamigal Arts College, Tirupanandal rep. by its President, Srilasri Kasivasi Muthukumaraswamy Thambiran Swamigal Vs. The Commissioner of Collegiate Education, Chennai and others. That was a case wherein the petitioner has filed a writ petition for a declaration that the colleges in question are established and administered by minority institutions under Article 30(1) of the Constitution of India. While deciding the case, the Hon'ble Division Bench has held that the approval of the competent educational authority is required to treat an educational agency as a single corporate unit. Therefore, according to the learned counsel, the second respondent in W.P.No.4816 of 2005 who is the writ petitioner in W.P.No.11064 of 2005 cannot presume itself to be a corporate body.
51. According to the learned counsel, Rule 15 of the Tamil Nadu Recognised Private Schools (Regulations) Rules is not applicable to the minority institutions and therefore, the second respondent Diocese cannot take advantage of the same.
52. On the face of the said rival submissions made by the learned counsels in this regard, it is relevant to extract some of the provisions of the Tamil Nadu Recognised Private Schools as well as Colleges Act. Before coming into that, on the analysis of the Tamil Nadu Recognised Private Schools (Regulations) Act, 1973 as well as the Tamil Nadu Private Colleges (Regulation) Act 1976, it shows except that they are applicable to the aided schools and aided colleges respectively, all other provisions are the in pari materia the same.
53. Now, for a reference to Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulations) Rules 1974 it is relevant to extract the same which runs as follows:
"15.Qualifications, conditions of service of teachers and other persons:........
4)(i) Promotion shall be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal.
(ii) Appointments to the various categories of teachers shall be made by the following methods:-
i)Promotion from among the qualified teachers in that school.
ii) If no qualified and suitable candidate is available by method (i) above-
a) Appointment of other persons employed in that school, provided they are fully qualified to hold the post of teachers;
b) Appointment of teachers from any other school;
c) Direct recruitment.
In the case of appointment from any other school or by direct recruitment, the school committee shall obtain the prior permission of the District Educational Officer in respect of Pre-primary, Primary and Middle School and that of the Chief Educational officer in respect of High Schools and Higher Secondary Schools, Teachers' Training Institutions setting out the reasons for such appointment. In respect of corporate body running more than one school, the schools under that body shall be treated as one unit for purpose of this rule". (Emphasis is mine)
54. Likewise, the Tamil Nadu Private Colleges (Regulations) Rule 11(4) is also relevant to be extracted which runs as follows:
"11.Conditions of service, etc., of teachers and other persons in college:.....
4 (i) Promotions in respect of teaching staff shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal, and in respect of non- teaching staff promotions shall be made on seniority basis, provided other conditions regarding qualification are satisfied.
ii) The committee shall fill up the posts by promotion or by direct recruitment. The committee shall, while making promotion, consider the claims of all the qualified teachers in that college. if, however, none of the qualified teachers in the college is found suitable for promotion, the vacancy shall be filled up by direct recruitment by calling for applications from qualified persons through the Press or by calling for a list of candidates from the Employment Exchange by following the rule of reservation ordered by the Government from time to time for direct recruitment.
Explanation:- For purposes of this rule, if an educational agency has established and administered more than one college, then, the colleges under the control of that educational agency shall be treated as one unit".(Emphasis is mine)
55. The reading of the said rules show that the educational authorities running more than one schools or colleges are to be treated as one unit at least for the purpose of qualifications, conditions of service of teachers and other persons employed in aided private schools and colleges respectively. When a question arose regarding the formation of two different school committees in respect of primary school and higher secondary school under the Tamil Nadu Private Schools (Regulations) Act, 1973, this Court in the judgment rendered in The Management of Papanasam Labour Welfare Association Higher Secondary school Vikramasingapuram - 627 425 represented by its Secretary Vs. The Chief Educational Officer, Tirunelveli-9 and 6 others reported in 1998 (III) CTC 753 has held that "The law does not say that the petitioner must get approval as corporate body".
56. However, while dealing with the provisions of the Tamil Nadu Private Colleges (Regulations) Act 1976, especially relating to Rule 11(4), a Division Bench in the judgment rendered in W.A.No.122 of 1997, in Sri Kasi Mutt, Educational Agency of Sri Kumaragurubara Swamigal Arts College, Srivaikuntam and Sri Kasivasi SwaminathaSwamigal Arts College, Tirupanandal rep. by its President, Srilasri Kasivasi Muthukumaraswamy Thambiran Swamigal Vs. The Commissioner of Collegiate Education, Chennai and others, has held as follows:
"16.We hold that the approval of the first respondent is required to treat the educational agency as a single corporate unit. We approve the view of the learned Single Judge that when an educational agency is having two or three colleges under its corporate control, it has the power to transfer the teachers or the staff from one college to another, but it must be strictly in accordance with Rule 11(4) of the Rules relating to the conditions of Service being maintained by a single corporate unit".
A reading of the entire judgment shows that it relates to a case where the Director of Collegiate Education has not gone into the question is as to whether two institutions are run by a single corporate unit it is on the facts of the said case, the Hon'ble Division Bench of this Court has held that the approval of the Commissioner of Collegiate Education would be required but insisting that the power to transfer has to be strictly in accordance with the Rules under Section 11(4) relating to the conditions of the services being maintained by a single corporate unit. In fact, in the said judgment, the decision of the Full Bench of this Court, rendered in the Correspondent, Malankara Syrian Catholic School, Marthandam, Kanyakumari District Vs. J.Rabinson Jacob and others reported in 1998 (3)M.L.J, 595 was considered stating that the Full Bench was concerned about the institutions in question where it was not established before the Full Bench that the institutions were run under a single corporate unit.
57. The Hon'ble Full Bench, was dealing with the issue relating to transfer of teachers of private schools under the Tamil Nadu Recognised Private Schools (Regulations) Act, 1974, holding that the power of transfer cannot be included in appointment unless expressly or impliedly provided for, on the facts and circumstances of the said case. Apart from that, the Full Bench has held that the right of transfer cannot be inferred. However, the Hon'ble Full Bench has observed that in a peculiar circumstance where there is no alteration of condition of service, change of master etc., such transfer may be treated as an incident of service. The Full Bench has decided the issue on the facts and circumstances of the said case. In this regard, it is relevant to extract para 26 of the said judgment as follows:
"26.From the resume of the observations made above it can be safely concluded that transfer is not necessarily included n the conditions of service as a term of the conditions of service. Transfer is a specie of the appointment and being one of the modes of appointment, cannot be included in the appointment itself unless it is expressly or impliedly provided for. Thus the assumption that the power to transfer is included in the power of appointment is unsustainable. Power to transfer involving the cessation of appointment would depend upon the nature of the transaction involved. May be in peculiar facts where it does not bring about any alterations of the conditions of service, change of master, change of place, alternation in the terms of appointment, usage prevalent in the statutory provisions, rules and regulations and structure, duration of employment and various other circumstances may provide for a lead that it is an incident of service. The question whether it is an incident of service has to be determined in the facts and circumstances of each and every case and is a question of fact".
Even though, the question whether transfer is an incident of service was left to be decided on the facts and circumstances, it remains a fact that the Full Bench has made a categoric observation that in cases where, the condition of service is not changed, there is no alteration in terms of appointment, transfer can be treated as an incident of service.
58. It is in this regard, relevant to point out another Division Bench judgment of this Court in the Manager R.C.Schools, Salem Social Services Society, Alagapuram, Salem and another reported in 2003 (4) CTC 65. In that case, the Division Bench has considered exactly, the similar issue which is before this Court, while deciding about the Rule 15(4)(ii)(c). That was also a case where various schools under the control of the same educational agency and the educational agency claimed to be a corporate management transferring the teachers from one school to another school under the same management. The Hon'ble Division Bench while referring to the above said judgment of the Full Bench reported in The Correspondent, Malankara Syrian Catholic School, Marthandam, Kanyakumari District Vs. J.Rabinson Jacob and others reported in 1998 (3)M.L.J, 595 has specifically stated as follows:
"4.The ratio of the decision of the Full Bench, therefore, is that transfer is not prohibited by the provisions of the Act; that if in a given case it is shown that transfer is a condition of service having regard to the terms of the contract between the parties,then transfer is permissible subject to the transferee not being deprived of the benefits of his service prior to such transfer".
59. The Division Bench while deciding about the above said Rule 15(4)(ii)(c) and also narrating the statutory authority of such Rule making, by referring to Section 19 and 20 of the Tamil Nadu Private Colleges (Regulations) Act in categorical terms has held that the Government by virtue of the power conferred under Section 19 of the Act has framed the Rules and in that Rule viz., Rule Number 15(4)(ii)(c) which speaks about the corporate body running more than one school, held that the possibility of several schools being run by one single legal entity enshrined under the said Rule and by considering the policy of the Act it does not prohibit more than one school being run by the same corporate body and also referring to the terms of contract entered under Form.No.VII(A), which runs as follows:
"6. Section 20 of the Act which is in Chapter V titled "Terms and conditions of service of teachers and other persons employed in Private Schools"
deals with appointment of teachers and other employees in private schools. Section 19 empowers the Government to make rules regulating the number, qualifications and conditions of service of the teachers and other persons employed in any private school. Rules having been made by the Government in this regard, qualifications and conditions of service of teachers and others are dealt with in Rule 15. It requires the school committee of every private school to enter into an agreement in Form VII(A) or VII(B). Rule 15(4) deals with promotions. Rule 15(4)(ii)(c) refers to Corporate Body running more than one school that, in respect of Corporate Body running more than one school, the schools under that body shall be treated as one unit for the purpose of the Rule. Thus, the rule made under the statute clearly recognises the possibility of several schools being run by one single legal entity and promotions being made from a common pool of teachers serving in all such schools whenever vacancies arise in any one of those schools run by that legal entity. The policy of the Act therefore is not to prohibit more than one school being run by the same corporate body. The fact that statutory agreement does not specifically refer to transfer would not come in the way of the concerned parties agreeing to such a condition or agreeing to continue to be bound by such a condition in a contract entered prior to coming into force of this Act. As to whether such a condition providing transfer in fact formed part of the contract is a question of fact".(emphasis is mine)
60. Further, the Division Bench by going into the various aspects of the service conditions of the respondent therein and having factually ascertained that the service conditions has not been altered to his disadvantage while holding that the transfer is valid has also observed in the following terms:
"9.This transfer does not prejudicially affect him as his seniority is preserved so also his emoluments. The appellant has placed before the Court the seniority list of its teaching staff in all the schools. It is a common seniority list which sets out the name of the teachers and their present place of working. The list is arranged chronologically with a person who joined earlier being placed above one who joined later." (emphasis is mine)
61. That apart, it is relevant to point out that the Apex Court time and again has held that the transfer is an incident of service and unless, mala fide is proved or statutory violations are found out such transfer cannot be interfered with as it was decided in the National Hydro Electric Power Corporation Vs.Shri Bhagwan and another reported in 2001(8) SCC 574.
62. In the present case, it is not even the case of the petitioner in W.P.No.4816 of 2005 that the transfer is effected by punitive method, as it is on fact clear that by effecting the impugned transfer, the petitioner's service conditions are not affected, his seniority is not disturbed and his monetary benefits are deprived and therefore, it can never be said as punitive in character.
63. A reference to the judgment of the Apex Court rendered in State of Uttar Pradesh Vs. Siya Ram and another reported in 2004 (7) SCC 405 is relevant which in unequivocal terms has laid down the law as follows:
"Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corpn. Ltd., Vs.Shri Bhagwan".
64. One other judgment of the Hon'ble Supreme Court which is relevant to be quoted in this regard to show that the transfer is an incident of service unless expressly barred as it was held in State of Rajasthan Vs. Anand Prakash Solanki reported in 2003 (7) SCC 403. While dealing with Section 10 of the Consumer Protection Act 1986, the Hon'ble Apex Court by making reference to a case rendered in Indra Sawhney Vs. Union of India, 1992 Supp (3) 217 has held at page 407 as follows:
"The concept of appointment by transfer is not unknown to service jurisprudence. A power to appoint includes a power to revoke an appointment, and so also a power to make an appointment includes a power to make an appointment by transfer, subject to satisfying the requirements of Section 10 of the Act. The expression "appointment" takes in appointment by direct recruitment, appointment by promotion and appointment by transfer".
65. In view of the facts stated above, that the educational authorities have recognised the second respondent in W.P.No.4816 of 2005 as a corporate management and further that by effecting the transfer, the petitioner's service conditions are not altered to his disadvantage and on the legal parlour, the possibility of having more than one schools under the control of the same corporate management is not prohibited under the provisions of the Tamil Nadu Recognised Private Schools (Regulations)Act and on the other hand, the Rules framed as per Section 19 of the said Act especially relating to Rule 15(4)(ii)(c) specifically enables and mandates the authorities to treat the corporate body running more than one school should be treated as one unit for the purpose of the Rule relating to qualifications, conditions of service of teachers and other persons employed in the aided private schools, I am of the considered view that the impugned order of transfer is not against the provisions of the Tamil Nadu Recognised Private Schools(Regulations) Act and Rules made thereunder and is not illegal. Consequently, the writ petition in W.P.No.4816 of 2005 is dismissed.
66. In W.P.No.11064 of 2005, the second respondent is directed to pass orders on the proposal submitted by the petitioner therein dated 21.11.2005 in respect of the grant regarding (Y.Balachandra Babu) working as B.T. Assistant in St.Lawrence Higher Secondary School, Madathattuvilai and pass orders based on the above decision of this Court within a period of four weeks from the date of receipt of a copy of this order. This writ petition is ordered accordingly. No costs. Consequently, connected W.P.M.Ps. are closed.
sms To
1.The District Educational Officer, Kuzhithurai Educational District at Marthandam, Kanyakumari District.
2.The Corporate Manager, Roman Catholic Schools, "Thedal" 10/8-46 C, Bridge Ward, Near Fire Station, Kuzhithurai, Kanyakumari District - 629 163
3.The Correspondent, St.Antony's High School, Kappukad - 629 162, Kanyakumari District.
4.The District Educational Officer, Thuckalay Education District, Thuckalay - 625 175, Kanyakumari District.