Madras High Court
Poornachandrakala vs ) The State Of Tamil Nadu on 17 June, 2020
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
W.P.(MD) No.7331 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON 18.08.2020
DELIVERED ON 27.08.2020
CORAM:
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
W.P.(MD)No.7331 of 2020
and
W.M.P.(MD) Nos.7369, 6778 & 6780 of 2020
Poornachandrakala ... Petitioner
Vs.
1) The State of Tamil Nadu,
Rep. by its Secretary to Government,
Department of Collegiate Education,
St.George Fort, Chennai 600 009
2) The Director of Collegiate Education,
EVK Sampath Maligai,
College Road, Chennai 600 006
3) The Joint Director of Collegiate Education,
EVK Sampath Maligai,
College Road,
Chennai 600 006
4) Pasumpon Muthuramalinga Thevar College,
Rep., by its Secretary,
Usilampatti, Madurai District.
5) P.Pandian
The Secretary,
Pasumpon Muthuramalinga Thevar College,
Usilampatti, Madurai District. ... Respondents
http://www.judis.nic.in
1/39
W.P.(MD) No.7331 of 2020
PRAYER : Writ Petition is filed under Article 226 of the Constitution of India to issue
a Writ of Certiorari, calling for the records relating to the impugned order passed by the
2nd respondent in his proceedings in K:/K:/vz;/10649/$p2/2020, dated 17.06.2020.
For Petitioner : Mr.M.Ajmal Khan,
Senior Counsel for M/s.Ajmal Associates
For RR 1 to 3 : Mr.M.Jeyakumar,
Additional Government Pleader
For RR 4 & 5 : Mr.Isaac Mohanlal,
Senior Counsel for Mr.C.Gangai Amaran
******
ORDER
The prayer sought for in this writ petition is for a Writ of Certiorari, seeking to call for the records relating to the impugned order passed by the 2nd respondent in his proceedings in K:/K:/vz;/10649/$p2/2020, dated 17.06.2020.
2. (i) In the year 1967, a group of people in and around Usilampatti, Madurai District started an Association called “The Kallar Kalvi Kazhagam”, Usilampatti, which was registered as a Society under the Tamil Nadu Societies Registration Act on 12.12.1967 with registration No.138 of 1967.
(ii) One of the main object of the Society is to start and manage Educational Institutions at all levels, including Arts and Science College at Usilampatti and other places in Tamil Nadu.
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(iii) Accordingly, a College called 'Pasumpon Muthuramalinga Thevar College' / the fourth respondent herein, was founded by the said Society at Usilampatti, under the auspices of “Kallar Kalvi Kazhagam”. From its inception, the said College had been in the forefront to cater the needs of College Level Education, by offering various courses to the needy and poor people in the locality and region.
(iv) The “Kallar Kalvi Kazhagam”, in its bye-laws or Memorandum of Association and Rules and Regulations, inter alia provides for the Constitution of Managing Committee, under Clause 23 which reads thus:-
“23. Constitution of Managing Committee:
The immediate control and Management of the Association and its institutions shall vest in a Managing Committee consisting of sixteen members duly elected by the members of the Association once in three years.
The Committee shall constitute one President, one Secretary, one Treasurer and thirteen members.”
(v) The term of office of such Managing Committee under Clause 24 of the bye-
laws is for three years. For the period between 2015 and 2018, a new Managing Committee was elected and they had been in the helm of affairs for the administration of “Kallar Kalvi Kazhagam” as well as the fourth respondent College. http://www.judis.nic.in 3/39 W.P.(MD) No.7331 of 2020
(vi) The fourth respondent College is an approved College and it comes under the control of the Director of Collegiate Education (i.e.) the second respondent, as well as the Joint Director of Collegiate Education (i.e.) the third respondent.
(vii) The present students strength of the college is around 3000. While so, the fifth respondent, who had been elected as a Secretary of the Managing Committee for the period from 2015 and 2018 had been in the helm of affairs as a Secretary of the College Committee also. The said College Committee with the Secretaryship of the fifth respondent, assumed office on 30.11.2015. During the said three years period of the erstwhile Committee, where the fifth respondent was the Secretary, there had been wild allegations against some of the Committee members, mainly against the fifth respondent and the College Principal that there had been large scale of misappropriation of funds or misuse of their position in making appointments of non-teaching staff sanctioned for the fourth respondent College.
(viii) While so, one of the member of the Society one Vanaraja seems to have given a complaint against the fifth respondent and others to the Inspector of Police, Vigilance and Anti Corruption, Madurai alleging various irregularities in the appointment of teaching and non-teaching staff and such complaint was given in December 2016. Based on the said complaint, a case has been registered in Crime No.2 of 2017 for the alleged offences punishable under Sections 167, 409, 420, 465, 468, http://www.judis.nic.in 4/39 W.P.(MD) No.7331 of 2020 477(A) r/w 120(B) and under Sections 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.
(ix) While that being so, there was a paper advertisement issued by the fifth respondent to fill up the post of Assistant Professors, by notification dated 06.07.2017 and it seems that the said notification or advertisement was challenged before this Court in Public Interest Litigations made in W.P.(MD) Nos.13026 and 13461 of 2017. While disposing the said two Public Interest Litigation petitions, a Division Bench of this Court by its order dated 20.12.2017, issued a direction to the following extent:-
“17.16. Be that as it may, in view of the fact that the W.P.(MD)Nos. 13026 of 2017 and W.P.(MD)No.13461 of 2017 filed by the respective Petitioners are held to be maintainable by this Court and also this Court, taking note of the fact that a case in Crime No.2 of 2017 was registered against the concerned, under various sections of Indian Penal Code and relevant provisions of the Prevention of Corruption Act, 1988; that the investigation in a criminal case is pending and also the Fourth Respondent/College is an aided one; that the Second Respondent/Director of Collegiate Education in W.P.(MD)No.13026 of 2017, although granted permission to fill up vacant sanctioned posts to the College subject to the conditions enumerated therein; that the College is the authority dealing with the selection process of the teaching staff of the College; that the Second Respondent/Director of Collegiate Education, Chennai or the Joint Director of Collegiate Education, Madurai is the competent authority to accord appointment approval to the teaching staff by taking into account the factors like sanctioned strength, Rule of Reservation, Educational Qualifications and other selection criteria and besides the above, the College is to adhere to the relevant ingredients of Tamil Nadu Private Colleges (Regulation) Act, 1976 and Rules framed thereunder while selecting the http://www.judis.nic.in 5/39 W.P.(MD) No.7331 of 2020 candidates for the teaching posts, in furtherance of substantial cause of justice and to secure the ends of justice, directs the Second Respondent/Director of Collegiate Education, Chennai in W.P.(MD)No.13026 of 2017 (The Third Respondent in W.P.(MD)No.13461 of 2017) and the Fourth Respondent/Joint Director of Collegiate Education, Madurai in W.P.(MD)No.13461 of 2017, to look into the issue of impugned advertisement relating to the appointments of Assistant Professor and Principal published in the vernacular daily, dated 06.07.2017 and to pass appropriate orders by issuing necessary directions to the concerned Respondents, and if there is substance to conduct an enquiry, to proceed further strictly in accordance with Law and under the Tamil Nadu Private Colleges (Regulation) Act, 1976 and the Rules framed there under, within a period of six weeks from the date of receipt of a copy of this order.
While passing necessary orders, the Second Respondent/Director of Collegiate Education, Chennai in W.P.(MD)No.13026 of 2017 (The Third Respondent in W.P.(MD)No.13461 of 2017) and the Fourth Respondent/Joint Director of Collegiate Education, Madurai in W.P.(MD)No.13461 of 2017, shall take into account of the pending criminal case registered in Crime No.2 of 2017 under various sections of Indian Penal Code and relevant sections of the Prevention of Corruption Act, 1988 against the concerned, because of the simple reason that the Posumpon Muthuramalinga Thevar College (Fourth Respondent in W.P. (MD)No.13461 of 2017) is an 100% aided College.
17.17. If for any reason, the Second Respondent/Director of Collegiate Education, Chennai in W.P.(MD)No.13026 of 2017 (The Third Respondent in W.P.(MD)No.13461 of 2017) and the Fourth Respondent/Joint Director of Collegiate Education, Madurai in W.P.(MD)No.13461 of 2017, comes to the conclusion that if any enquiry needs to be conducted in respect of the affairs of the Sixth Respondent/Society, pertaining to the Fourth Respondent/College in W.P.(MD)No.13461 of 2017, concerning the alleged mismanagement, misappropriation as well as the activities of the Board (dehors the report sent by the District Registrar through letter No.3045/A2/2017, dated 22.09.2017), in http://www.judis.nic.in 6/39 W.P.(MD) No.7331 of 2020 this regard, necessary directions/orders shall be passed, within the time adumbrated by this Court.
18. With the aforesaid Direction(s) and Observation(s), these Writ Petitions stand disposed of. No costs. Consequently, connected Miscellaneous Petitions are closed.”
(x) However, it seems that, pursuant to the directions issued by the Division Bench, as stated above, no enquiry had been conducted or no proof or documents whatsoever, has been filed by the official respondents, especially the respondents 1 and 2, as to whether such an enquiry was conducted or whether they have decided that such enquiry was not necessitated.
(xi) Be that as it may, at this juncture, the F.I.R. registered against the fifth respondent and others, as stated supra, has been further investigated by the Vigilance and Anti Corruption Department and ultimately on 13.03.2018, charge sheet has been laid in C.C.No.1 of 2018 before the Special Judge for Trial of cases under Prevention of Corruption Act, 1988, Madurai, where against four accused, charges have been framed and the fifth respondent herein has been shown as the first accused and the charges framed against the accused persons in the said C.C.No.1 of 2018, including against the fifth respondent, are the offences punishable under sections 120(b), 406, 409, 420 of IPC and under Sections 7 and 13(2) r/w 13(1)(c)(d) of Prevention of Corruption Act, 1988. Pursuant to the said charge sheet laid before the concerned Court, it is submitted http://www.judis.nic.in 7/39 W.P.(MD) No.7331 of 2020 by the learned counsel appearing for the parties that trial already has commenced and it is on.
(xii) When that being the position, the three-year term, as per the bye-laws, of the erstwhile Managing Committee of the “Kallar Kalvi Kazhagam”, came to an end in 2018 and thereafter, for the next term of three years, in order to elect the new Managing Committee, when steps were taken, there had been litigations filed before this Court and ultimately, this Court had appointed a former Judge of this Court as an Administrator to conduct elections and subsequently, when he was discharged, by order, dated 13.09.2019, yet another former Judge of this Court was appointed as Administrator vide order, dated 18.10.2019 and he was directed to conduct the elections to elect the Managing Committee of the “Kallar Kalvi Kazhagam” (i.e.) Society. Accordingly, a notification for election to elect the President, Secretary, Treasurer and 13 Executive Committee members of the Society was issued and the Administrator fixed 01.03.2020 as the date for conducting elections. Accordingly, election was conducted, where the Managing Committee consisting of the aforesaid office bearers were elected.
(xiii) The fifth respondent, who contested in the election for the post of Secretary, also won the elections and accordingly, the Administrator has declared his election as Secretary and a certificate to that effect was also issued, so that, he can be the Secretary for the next three years in the Managing Committee of the Society. http://www.judis.nic.in 8/39 W.P.(MD) No.7331 of 2020
(xiv) By virtue of the said election having been conducted, where the fifth respondent was elected as the Secretary of the “Kallar Kalvi Kazhagam”, he, in turn, sought to be nominated or elected as the Secretary of the College Committee. Accordingly, it seems that his elections/ nominations or appointment as Secretary of the College Committee had to be approved and such a request seems to had been made to the second respondent through the third respondent.
(xv) In this regard, the petitioner, who is one of the member of the “Kallar Kalvi Kazhagam”, had given a detailed request cum representation on 13.05.2020 to the official respondents herein, not to approve the elections or appointment or nominations of the fifth respondent as Secretary of the College Committee of the fourth respondent College, in view of the pendency of the criminal case, where serious charges were made against him and the charge sheet has already been filed, where trial already commenced. However, unmindful of the said objection raised by the petitioner, the second respondent vide his proceedings, dated 17.06.2020 in a short order has approved the fifth respondent as Secretary of the College for a period of one year from 03.03.2020 to 02.03.2021. The content of the said order dated 17.06.2020 reads thus:
“jdpahh; fy;Yhhpfs; xG';fhw;W tpjpfs; 1976?d; 9?k; tpjpapd; fPH; cs;s Jiz tpjpfs; 2?d; fPH;/ crpyk;gl;o. gRk;bghd; Kj;Juhkyp';fj; njth; fy;Y}hp brayuhf jpU/gp/ghz;oad; vd;ghh; 03/03/2020 Kjy; 02/03/2021 tiu Xuhz;L fhyk; bray;gl kJiu kz;ly fy;Yhhpf; fy;tp ,iz ,af;Fehpd; ghpe;Jiuapd; mog;gilapy; mDkjp mspj;J Miz tH';fyhfpwJ/ xg;gk;-?
fy;Yhhpf; fy;tp ,af;Feh; (K/T/bgh)” http://www.judis.nic.in 9/39 W.P.(MD) No.7331 of 2020
3. Challenging the said order of the second respondent, dated 17.06.2020 this writ petition has been filed with the aforesaid prayer by the petitioner.
4. (i) At the time of admission, Mr.Ajmal Khan, learned Senior counsel appearing for the petitioner has narrated the aforesaid facts in a nutshell and by relying upon the decision of a learned Judge of this Court made in similar circumstances in W.P. (MD) No.42316 of 2016 dated 14.12.2017 in the matter of the Secretary, Voorheese College, Vellore vs. the State of Tamil Nadu, rep. by its Secretary, Department of Higher Education and three others, he contended that, in view of the charge sheet pending against the fifth respondent, where trial is on before the concerned Criminal Court, the second respondent ought not to have approved the fifth respondent as Secretary of the College.
(ii) He would further submit that, the charges framed against the fifth respondent is not related to any other issue outside the affairs of the College, but in fact, the charges are fully with regard to the affairs of the fourth respondent College, that too, with regard to the alleged corruption and misusing or abusing of his official position as Secretary, during his erstwhile term, in making appointment of teaching and non-teaching staff. Therefore, in all fairness the appointment should not have been approved and despite the representation and objection given by the petitioner, unmindful of the same, since the appointment was approved, the same has to be interfered with. http://www.judis.nic.in 10/39 W.P.(MD) No.7331 of 2020
(iii) The said submission made by the learned senior counsel appearing for the petitioner and the said prime facie case of having considered the judgment referred to by him, where also similar circumstances have been confronted by the learned Judge of this Court, where, in fact, the very same Authority viz., the second respondent Director/Collegiate Education, in that case, had given a direction to the Educational Agency or College Committee of that College to remove the Secretary appointed/ nominated/ elected, on the grounds of allegations or complaint made against him, from the post, when that was the stand taken by the second respondent, here, when a serious allegation has been made, where charge sheet also was laid by the concerned police before the competent Criminal Court, the present impugned order passed by the second respondent, struck the conscious of this Court and therefore, on the prima facie satisfaction, this Court, by order dated 06.07.2020 has passed the following interim order:-
“5. As admittedly a criminal case has been filed against the 5th respondent, where charge sheet also has been filed and trial also commenced, the official respondents, especially the 2nd respondent could have waited for some time till a decision is made by the Trial Court, as the trial commenced against the 5th respondent and other accused and therefore, at this stage approving his appointment as School Secretary in the 4th respondent institution may not be justifiable. Therefore, this Court is inclined to interfere with the said order. Accordingly, there shall be an order of interim stay.
6. Notice to the respondents 4 and 5, returnable in four weeks.” http://www.judis.nic.in 11/39 W.P.(MD) No.7331 of 2020
5. Pursuant to the said interim order passed by this Court dated 06.07.2020, felt aggrieved over the same, the fifth respondent has filed W.M.P.(MD) No.7369 of 2020 seeking to vacate the said interim order. That is how, this writ petition as well as the writ miscellaneous petition for vacating the interim order have come up before this Court for consideration.
6. Today, the learned senior counsel appearing for both the writ petitioner and the fifth respondent since made their respective submissions on the main writ petition itself, it was heard finally and is decided through this order.
7. The learned senior counsel appearing for the petitioner has brought to the notice of this Court, the content of the charges framed against the fifth respondent by the concerned Police of Vigilance and Anti Corruption, where the fifth respondent had been shown as the first accused and the other accused were either the College Principal or erstwhile Managing Committee members. All the charges framed against these accused people, including the fifth respondent, are only related to the affairs of the fourth respondent College, where allegedly some appointments had been made in various post of non-teaching staff, for which, allegedly illegal gratification were obtained by all the accused, including the fifth respondent. Therefore, by relying upon the severity of the charges framed by the Police of Vigilance and Anti Corruption, against the fifth respondent and others, the learned senior counsel appearing for the petitioner would contend that, even though the pendency of the criminal case may not http://www.judis.nic.in 12/39 W.P.(MD) No.7331 of 2020 be a disqualification to hold a post, in the case in hand, since those charges are not outside the purview of the administration of the fourth respondent College, in fact, all those charges were pertaining to the administration of the fourth respondent College during the last term of the fifth respondent and other people, the learned senior Counsel would submit that, since the fourth respondent College is an aided institution and it was started for a noble cause of imparting education to the needy and the poor people in that locality and the region in general, if such kind of rampant corruption is permitted to go on, the very purpose for the establishment of such a great institution in a backward area by the noble people, some 50 years ago, would be completely destroyed, he contended.
8. He also submits that, though the fifth respondent has been elected as a Secretary of the Managing Committee in the election conducted for the next term of three years, if he is permitted to continue as a Secretary of the College Committee, within the meaning of the provision of the Tamil Nadu Private Colleges Regulations Act, 1976 and Rules made there under, (herein after called as the Act and the Rules) that would set a bad precedent, that the very same person, who allegedly involved in rampant corruption, mismanagement and misappropriation activities in the administration of the College while he was in the helm of affairs, during the last term, has now been given a premium to continue as a Secretary of the College for one more term. Therefore, the learned senior counsel would urge before this Court that the gravity of the situation can be taken judicial notice by this Court and accordingly, suitable decision can be taken in this writ petition.
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9. Per contra, Mr.Isaac Mohanlal, learned Senior counsel, assisted by Mr.C.Gangai Amaran, learned counsel appearing for the fifth respondent, who filed the vacate stay petition, has taken this Court to various provisions of the Act and the Rules made therein. He vehemently contended that, as per the bye-laws of the Society, election was held and election was conducted by an Administrator, who is none other than a former Judge of this Court, appointed by this Court, and by whom the election was properly conducted, where the petitioner, who contested for the post of Secretary has won the election and accordingly, was elected as Secretary of the Managing Committee. Like that, other office bearers have also been elected. Therefore, on behalf of the Managing Committee, since the fifth respondent became the Secretary, he has to be construed as the Secretary of the College Committee also and accordingly, his selection / nomination as Secretary of the College Committee had been forwarded to the second respondent through the third respondent seeking approval, which was having been considered by the said respondents was duly approved, however, for only one year and not for the whole term of three years. Therefore, absolutely there is no legal impediment for the fifth respondent to continue the office as Secretary of the College Committee of the fourth respondent College.
10. The learned senior counsel appearing for the fifth respondent would also contend that, the petitioner has not suffered with any disqualification, as has been provided under Rule 8(6) of the Rules, which reads thus:-
http://www.judis.nic.in 14/39 W.P.(MD) No.7331 of 2020 “8. Constitution of Committee:
...
(6) No person shall be eligible to become a member of the committee if he is -
(a) a minor; or
(b) a mentally unsound person; or
(c) a person convicted for criminal offence involving moral turpitude;
(d) an insolvent; or
(e) a person found responsible for any serious irregularity as a result of enquiry by the University or the Department of Education, Science and Technology.”
11. He would submit that, under Rule 9, the Educational Agency (i.e.) the Society shall nominate one of its representative as Secretary of the Committee. Accordingly, the Educational Agency has nominated by way of election, the fifth respondent as Secretary. Therefore, under the provisions of the Act as well as the Rules made thereunder, the fifth respondent was properly elected as Secretary of the Managing Committee of the Educational Agency as well as the College Committee of the fourth respondent College under the provisions of the Acts and Rules, therefore, such an election / nomination cannot be questioned, merely because a charge sheet has been laid against the fifth respondent for alleged offences.
12. The learned Senior Counsel also would contend that, the judgment of the learned Single Judge in W.P.(MD) No.42316 of 2016 dated 14.12.2017 in the matter of the Secretary, Voorheese College, Vellore vs. the State of Tamil Nadu, rep. by its http://www.judis.nic.in 15/39 W.P.(MD) No.7331 of 2020 Secretary, Department of Higher Education and three others, referred to above, relied upon by the petitioner's side, has subsequently been appealed, where a Division Bench of this Court in W.A.(MD) No.64 of 2018 by order, dated 05.03.2018 has modified the said order and permitted the Secretary, selected in the said case, to continue for the full term. Therefore, the learned Single Judge order, as has been relied upon by the petitioner's side, cannot be made applicable to the facts of this case and therefore, on that ground also the impugned order cannot be interfered with, he contended.
13. The learned senior counsel also drew the attention of this Court to the case reported in 1996-1 L.W.567 in the matter of A.Ayyasamy vs.the District Educational Officer and 2 others. He would also submit that, in as much as the bye-laws of the Society as well as the provisions of the Act and Rules do not prohibit the fifth respondent from getting elected as Secretary of the College Committee, his election and his holding of office as Secretary cannot be said to be unlawful or illegal. Therefore, there is absolutely no legal ground in the eye of law to challenge such selection and consequential approval made by the second respondent of such selection. Therefore, the learned senior counsel would contend that, the writ petition is misconceived of facts and law, hence, it is deserved to be rejected and the impugned order needs to be sustained.
14. Mr.M.Jeyakumar, learned Additional Government Pleader appearing for the official respondents 1 to 3 also has contended that, since the fifth respondent having http://www.judis.nic.in 16/39 W.P.(MD) No.7331 of 2020 been elected by the duly conducted election and accordingly a proposal for approval of the election having been forwarded by the third respondent, the second respondent after having considering the same, has granted its approval, that too, only for one year, therefore, the said impugned order need not be interfered with.
15. I have considered the said rival submissions made by the learned senior counsel appearing for the parties as well as the learned Additional Government Pleader appearing for the official respondents and perused the materials available on record.
16. The point in issue in this writ petition is, as to whether the fifth respondent is suffered with any disqualification, as contemplated under relevant provisions of the Act and the Rules, if not , under what basis his election and subsequent holding of the post of Secretary of the College Committee can be prevented or curtailed or questioned and accordingly, whether the order impugned, where the fifth respondent position as Secretary since has been approved for one year, can be successfully challenged in the given facts and circumstances of the case.
17.(i) In order to delve into the said question posed before this Court for decision, certain provisions of the Act can be first gone into Section 11 of the Act speaks about the Constitution of College Committee which reads thus:
“11.Constitution of college committee: Every private college, not being a minority college, shall have a college committee which shall include the http://www.judis.nic.in 17/39 W.P.(MD) No.7331 of 2020 following persons employes in the private college, namely:-
(a) the Principal ;
(b) the senior-most Selection Grade Lecturer or Reader;
(c) one other Selection Grade Lecturer; and
(d) the senior-most Superintendent:
Provided that if there is no Selection Grade Lecturer in the private college, the senior-most Lecturer and one other Lecturer shall be included in the college committee:
Provided further that if the senior-most Selection Grade Lecturer or the senior-most Lecturer, as the case may be, or the senior-most Superintendent is not willing to be included in the advisory committee as a member, the next senior person in the respective category who is willing to be included as a member shall be included in the college committee:
Provided also that if there is only one post in the category of Superintendent and the person holding the post is not willing to be included in the college committee as a member, the senior-most Assistant shall be included as a member in the college committee.”
(ii) Section 12 of the Act speaks about the Secretary of the College Committee which reads thus:-
“12. Secretary of the College Committee:- (1) Every college committee shall have a secretary who shall exercise such powers and perform such functions as may be prescribed.
(2) Every person holding office as president, secretary, manager or corespondent of a private college or exercising the powers of secretary under this Act on the date of its commencement shall be deemed to be a secretary under this Act.”
(iii) Like that, the following provisions of the Rules are also to be noted:-
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8. Constitution of committee: (1) The educational agency of every college, other than minority college, shall constitute a committee.
(2) The term of office of the members of the committee shall be three years. Members of the committee shall be eligible for re-nomination. (3)The committee shall consist of -
(a) representatives of the educational agency, who shall be nominated by such educational agency:
Provided that no employee of the College shall be nominated under the category-
(b) Principal of the college; and
(c) Two senior-most Professors.
Explanation (1): In case where there is only one Professor that Professor and one senior-most Assistant professor / Lecturer and where there is no Professor, two senior-most Assistant Professors / Lecturers shall be in the committee. Explanation (2): For purpose of this rule, the seniority shall be determined with reference to the total service rendered by the professors/ Assistant Professors/ Lecturers in any college, or colleges in the State of Tamil Nadu.
(d) One member nominated by the University concerned.
(4) When a vacancy in category (c) in sub-rule (3) arises, the next senior-most Professor or Assistant Professor / lecturer, as the case may be, shall be nominated to the committee.
(5) The educational agency shall nominate one of its representatives, in the committee as the President.
(6) No person shall be eligible to become a member of the committee if he is -
(a) a minor; or
(b) a mentally unsound person; or
(c) a person convicted for criminal offence involving moral turpitude;
(d) an insolvent; or
(e) a person found responsible for any serious irregularity as a http://www.judis.nic.in 19/39 W.P.(MD) No.7331 of 2020 result of enquiry by the University or the Department of Education, Science and Technology.”
9. Secretary of the Committee: (1) The educational agency shall nominate one of its representatives as Secretary of the committee:
Provides that it shall be open to the educational agency to nominate the Principal as Secretary of the Committee.
(2) The term of office of the Secretary shall, ordinarily, be three years.
However, he/ she shall be eligible for re-nomination for subsequent terms. If the educational agency intends to change the Secretary within the period of three years, it shall do so only with the prior approval of the Director. Application for approval of change in the Secretaryship shall be made to the Director in Form 6.
(3) The Secretary shall function for and on behalf of the committee and educational agency.
(4) The Secretary shall act according to the resolutions passed at the meeting of the Committee.
(5) The Secretary shall not interfere in the internal administration of the college such as admission, examination, promotion of student and other academic matters as also the administration of the special fee funds, which shall be made the exclusive responsibility of the Principal.
(6) The Secretary shall be responsible for the maintenance of proper and accurate accounts and the administration of college funds except special fee funds.”
18. On reading these aforesaid provisions, the following position emerges. Section 11 of the Act speaks about the College Committee. The term College Committee is defined at Section 2(2) which reads thus:
“(2) 'college committee', in relation to a private college, means the college committee referred to in Section 11.” http://www.judis.nic.in 20/39 W.P.(MD) No.7331 of 2020 But at the same time, under the Rules, the word 'committee' has been defined in Rule 2(c) which reads thus:-
“Committee means the College Committee.”
19. With these definitions, both under the Act and the Rules, if we look at the aforesaid provisions of the Act and Rules, this Court feels that, under the Act, there shall be a Constitution of College Committee, but the Constitution is consisting of Principal, senior most Selection grade Lecturer or Reader, one another Selection Grade Lecturer and the senior most Superintendent, whereas, under the Rules, the constitution of the Committee is consisting of various persons as has been extracted above. However, the definitions both under the Act and Rules says that, under the Act, the College Committee means College Committee under Section 11 of the Act and under the Rule, Committee means College Committee. With these definitions, if we take that the Committee constituted under Rule 8 of the Rule is nothing but a College Committee constituted under Section 11 of the Act, then, the composition or constitution of both Committees shall be one and the same, but it is not so, the composition differs. Therefore, looking from this angle, we have to construe that, the constitution of College Committee is a must, which shall have to be constituted in every College not being the minority College, whereas under Rule 8, it is for the Educational Agency of every College other than the minority College shall constitute a Committee. http://www.judis.nic.in 21/39 W.P.(MD) No.7331 of 2020
20. Here in the case in hand, the Educational Agency is nothing but “Kallar Kalvi Kazhagam” which is a juridic body, as it is a Society registered under the Society Registration Act. If that is the Educational Agency, since it is a large body consisting of several members, in order to take up the day to day affairs of the Management of the Educational Agency (i.e.) Society, the bye-law provides under Clause 23 as referred to above, the Constitution of a Managing Committee. The Managing Committee, consisting of 16 persons, duly elected by the members of the Association once in three years; they are one President, one Secretary, one Treasurer and 13 members. Only in order to elect these Managing Committee of the Educational Agency (i.e.) the Society, the election was so held, where the fifth respondent, no doubt has been elected as a Secretary of the Managing Committee of the Educational Agency.
21. At this movement, once the Managing Committee of the Educational Agency (i.e.) the Society is elected in the manner provided under the bye-law, especially in the context of Clause 23 of the bye-law, it does not mean that the said Managing Committee ipso facto would become the College Committee or Committee, as has been contemplated either under Section 11 of the Act or in Rule 8 of the Rules.
22. Instead, there must be atleast a Committee under Rule 8 that should be constituted only by the Educational Agency. Now, the job of the Administration of the Educational Institution is to be undertaken by the Managing Committee elected in this http://www.judis.nic.in 22/39 W.P.(MD) No.7331 of 2020 regard. Therefore, the Managing Committee has to constitute the Committee under Rule 8, which is nothing but the College Committee for the purpose of management of the fourth respondent College.
23. If we look at the issue from this angle, especially, in the context of the provisions of the Act and the Rules, as well as the bye-laws referred to above, certainly there must be a Managing Committee of the Educational Agency, that is the Society and thereafter, there should have been a Committee, which is nothing but a College Committee, that should have been constituted by the said Educational Agency through the Managing Committee, where the members as contemplated under Rule 8 should form part of the Committee, where, if at all the fifth respondent is nominated as Secretary of the College Committee, within the meaning of Rule 8 and Rule 9, certainly, such nomination can be construed as a nomination made under the provisions of the Rule.
24. Under Rule 9, it is specified that, the Educational Agency shall nominate one of its representatives as Secretary of the Committee. Again here also, the role is with the Educational Agency and in the present case, the Educational Agency is acting through the Managing Committee and therefore, the Managing Committee must have appointed the Secretary of the School Committee within the meaning of Rule 9 of the Rules. Whether such a separate nomination having been made or not has not been spelt out or brought to the knowledge of this Court by any document either by the fifth respondent or by the official respondents.
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25. Be that as it may, now let us see the veracity of the charges framed against the fifth respondent and others before the concerned criminal Court. The charge sheet inter alia provides for various serious allegations against the fifth respondent and others, for example, one or two charges are extracted hereunder:
“During the course of the same transaction and in pursuance of the said criminal conspiracy, the Accused 2, by using his right of appointment as Selection Committee Member, by illegal way, after demanded and accepted the illegal gratification of Rs.10,00,000/- (Rupees Ten Lakhs) for himself and Accused 1, 3, 4 and 5, on 16.11.2016 at City Union Bank, Usilampatti Branch, appointed Tr.S.P.Gowtham, S/o.S.Pandi, as Office Assistant in MBC/DNC Quota which post is an unapproved by the Government and thereby the Accused-2 had committed offence of criminal misconduct punishable under Section 7 and 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, 1988 and A1, A3 to A5 have committed the offence of conspiracy coupled with criminal misconduct under Section 120-B IPC r/w 13 (2) r/w 13 (1)(d) of Prevention of Corruption Act.
1988.
During the course of the same transaction and in pursuance of the said criminal conspiracy, the Accused 2, by using his right of appointment as Selection Committee Member, by illegal way, after demanded and accepted the illegal gratification of Rs.2.30,000/- (Rupees Two Lakhs Thirty Thousand) for himself and accused 1, 3, 4 and 5 on 16.11.2016 at Canara Bank, Usilampatti Branch, in the form of Demand Draft in favour of Muthoot Finance, appointed Tr.P.Naveen, S/o Pitchai, as Library Assistant in GT Quota and thereby the Accused-2 had committed offence punishable under Section 7 and Section 13(2) r/w 13(1) (d) of Prevention of Corruption Act, 1988, A.1 and A.3 to A.5 have committed the offence of conspiracy coupled with criminal misconduct under Section 120-B IPC r//w 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988. http://www.judis.nic.in 24/39 W.P.(MD) No.7331 of 2020 During the course of the same transaction and in pursuance of the said criminal conspiracy, the Accused 2, by using his right of appointment as Selection Committee Member, by illegal way, after demanded and accepted the illegal gratification of Rs.2,00,000/- (Rupees Two Lakhs) for himself and Accused 1, 3, 4 and 5, on 24.11.2016 at Tamil Nadu Mercantile Bank, Checkkanurani Branch, in the form of Laboratory Assistant in BC Quota which post is an unapproved by the Government and thereby the Accused-2 had committed offence punishable under Section 7 and Section 13 (2) r/w 13(1)(d) of Prevention of Corruption Act, 1988, A.1 and A.3 to A.5 have committed the offence of conspiracy coupled with criminal misconduct under Section 120-B IPC r/w 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988.
During the course of the same transaction, during September 2016, the Accused-1 demanded Rs.10,00,000/- (Rupees Ten Lakhs) from Tr.Chinnan, one of the Board of Directors of Kallar Kalvi Kalagam, for appointing his son Tr.Tamizh Kumaran and thereby the A-1 had committed offence punishable under Section 7 and 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, 1988.” The aforesaid extraction of the charge sheet are only few, among various charges like this, which have been made against the fifth respondent and others.
26. On reading of the charges, prima facie this Court feels that, when such a serious charges have been made against the fifth respondent and others, only related to the administration of the fourth respondent College during the earlier time where the very same fifth respondent was the Secretary, unless and until, the fifth respondent is able to prove his innocence and comes out with clean hands in the said criminal case, this Court feels that, the tainted atmosphere, where the petitioner is placed, has not so far been cleared.
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27. In a similar circumstances, when an F.I.R. was filed against the Secretary of the College in the matter referred to in W.P.(MD) No.42316 of 2016, the very same Director of Collegiate Education (i.e.)the second respondent, had taken it in right direction, by directing the College Committee to remove the Secretary from the Secretaryship in view of his facing charges.
28. When that order was challenged, that was upheld by a learned Judge of this Court against which intra Court appeal was filed.
29. Mr.Isaac Mohanlal, learned senior counsel appearing for the fifth respondent has vehemently contended that, the said order of the Writ Court has been modified by the Division Bench and the Secretary was permitted to continue as the Secretary, therefore, the same cannot be taken as a precedent by this Court.
30. But the fact remains that, the Division Bench in W.A.(MD) No.64 of 2018 dated 05.03.2018 in paragraph nos.5 & 7 has stated the following:-
“5. When the matter was taken up for hearing, the learned Senior Counsel appearing for the appellant would submit that on mere filing of FIR it cannot be presumed that the law is set in motion and only if the charge sheet in a criminal prosecution is filed, it can be deemed that the law is set in motion and therefore, prior to that merely on filing of FIR, no view can be taken to pass any penal orders on account of some alleged misconduct. In support of his contention, he relied upon the decision of a Three Judges http://www.judis.nic.in 26/39 W.P.(MD) No.7331 of 2020 Bench of the Apex Court in UNION OF INDIA v. K.V.JANAKIRAMAN ((1991) 4 SCC 109.
......
7. However, since it is represented that the tenure of the appellant is going to end in July 2018, hardly in another three months, we are of the view that he shall continue in the post of Secretary till his retirement, but, he shall not deal with the matters of financial consequences. With such modification in the order passed by the learned Single Judge, we dispose of the writ appeal. No costs. The connected miscellaneous petition is closed.”
31. Therefore, the stand taken by the appellant in the said appeal was that, if at all, any charge memo in departmental proceedings or charge sheet in criminal proceeding is filed, then, it can be viewed as a stigma and therefore, the penal orders could be passed for some alleged misconduct and in that case, since it was only filing of F.I.R., such a view cannot be taken.
32. If the said logic is applied to the facts of this case, certainly, the petitioner's case can very well be accepted because, in the case in hand, charge sheet has been filed and the trial is on against the fifth respondent.
33. Moreover, in paragraph no.7 of the Division Bench order, as referred to above, the Secretary of that College was permitted to continue till his retirement because, hardly, that Secretary had only three months time in his tenure to complete. Therefore, he was permitted to continue as a Secretary, however with a rider that, he shall not deal with the matters of financial consequence.
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34. Therefore, the underlined principle emanates from the said Division Bench judgment referred to above in the Voorheese College case, stated supra is, if there is a charge sheet or charge memo filed with different charges against a person, who is nominated or elected to become the Secretary of the College Committee to manage the affairs of the College or School, certainly, such person shall not be permitted to hold the office, and even on humanitarian grounds, as only three months period was left in that case, when he was permitted to hold the post of Secretaryship, the finance matters have not been given to him.
35.Therefore, the Division Bench judgment referred to by the learned senior counsel for the fifth respondent, in the Voorheese College case, stated supra, certainly would further strengthen and fortify the stand of the petitioner herein and therefore, this Court is respectfully agreed to follow the said dictum of the Division Bench judgment in the above context.
36. The learned senior counsel appearing for the fifth respondent, has also relied upon the judgment of the Division Bench reported in 1996-1 L.W.567 cited supra. By relying upon the said judgment, Mr.Isaac Mohanlal, learned Senior counsel would contend that, in view of the election having been conducted to elect the Managing Committee of the Society / Educational Agency and in the said election, since the Committee has been duly elected, including the fifth respondent as the Secretary and the http://www.judis.nic.in 28/39 W.P.(MD) No.7331 of 2020 said election having been registered by the Registrar of Societies, by accepting the relevant forms in this regard, such an election cannot be questioned and based on which, the selected office bearers shall not be dislodged from the office they are holding.
37. He would also submit that, the principle laid down in the said judgment of the Division Bench referred to above, squarely applies to the present case, and therefore, he very much relied on that judgment.
38. However, on reading of the said Division Bench judgment, it discloses that, it was an issue, where, there has been a conflicting claim with regard to the election in the Society / Educational Agency which managed the School concerned in that case. Where, since there has been a dispute between two groups in holding the office of the Educational Agency / Society and in this regard, if any suit is filed before competent Civil Court, during the interregnum, whether the Officials / Department concerned, can very well invoke Section 53(A) of the Tamil Nadu Private School Regulations Act, 1973 to make interim arrangements by appointing a Special Officer to take the management of the School concerned, instead of Educational Agency. In that context, the Division Bench has given the view that, if a properly and validly elected Educational Agency or School Committee, duly registered and certified by competent Authority exists, the same should be allowed to function and not stultified. The relevant portions of the order of the Division Bench are quoted hereunder:-
http://www.judis.nic.in 29/39 W.P.(MD) No.7331 of 2020 “10. We are of the view that the following principles and norms, if applied, in invoking the powers under Section 53-A(2) of the Act, may help to avoid arbitrariness:
(1) Wherever there is a properly and validly elected Educational Agency or School Committees duly registered and certified by the Competent Authority under the provisions of the Tamil Nadu Societies Registration Act and the Rules made thereunder, the same should be allowed to function and not stultified.
(2) Whenever any competent court or Statutory Authority vested with such powers under the Act stays or suspends the operation of the proceedings recorded under the said Act by the grant of any order of stay or injunction, the fate of the Committee shall abide by such orders and the Authorities under the Act must give due weight and implement these orders; (3) If there is no impediment in recognising or approving the elected Committee by any order as noticed in (2) above, the Authorities exercising jurisdiction under the Act shall be at liberty to recognise and approve the same so as to enable the Committee to function effectively, subject to the result of any judgment/decree of any court or the orders of any of the Statutory Authorities legally entitled to interfere with the said position: (4) If the authorities of the Educational Department themselves entertain any reasonable doubt about the legality and propriety of the claims made by anyone, it shall always be open to such authorities or members of the society to take action under Section 53-A (1) of the Act followed by separate action under Section 53-A of the Act:
http://www.judis.nic.in 30/39 W.P.(MD) No.7331 of 2020 (5) If the authorities of the Educational Department are satisfied with the claims made which are duly certified by the Competent Authority under the provisions of the Tamil Nadu Societies Registration Act, 1975 and the Rules made thereunder, such authorities shall be at liberty to recognise or approve of the same under the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and there is no necessity to have recourse to Section 53-A(2) of the Act and such recognition or approval shall of course, be subject to the orders of any court interim or final, or competent statutory authority in exercise of its powers under the Statute.
39. Absolutely, there is no quarrel to the said principle enunciated by the Division Bench of this Court referred above. When there is a duly elected or validly elected Educational Agency or School Committee, duly registered and certified by competent Authority under the provisions of the Societies Registration Act and Rules made there under , the same should be allowed to function and not stultified.
40. Here in the case in hand, no doubt, the Managing Committee under Clause 23 of the Bye-law has been duly elected pursuant to the election conducted by the Administrator, who is none other than a former Judge of this Court appointed by this Court as referred to above. However, insofar as the appointment of the Secretary within the meaning of Rule 9 read with Rule 8 of the Rules are concerned, this Court has given its exhaustive discussion in this regard where since there has been no proof to show that http://www.judis.nic.in 31/39 W.P.(MD) No.7331 of 2020 Rule 9 was invoked by the Educational Agency and the fifth respondent was duly appointed as a Secretary of the College Committee, representing the College Committee duly constituted under Section 11 of the Act and under Rule 8 of the Rules.
41. Moreover, this Court have not taken any view to dislodge the Managing Committee under Bye-law 23 elected on behalf of the Educational Agency pursuant to the said elections. The entire Managing Committee, which includes the fifth respondent as a Secretary, on behalf of the Educational Agency, within the meaning of Bye-law 23, can very well function.
42. However, insofar as the Management of the fourth respondent College is concerned, the provisions of the Act, namely Tamil Nadu Private College Regulations Act, 1976 and the Rules made thereunder alone will have a role to play, not the Societies Registration Act.
43. Insofar as the provisions of the Societies Registration Act and Rules made thereunder is concerned, that deals with the Societies registered under the said Societies Registration Act, their elections and selection of office bearers and their functioning and formalities to be adopted in registering the elections before the Registrar concerned.
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44. However, under the provisions of the Tamil Nadu Private Colleges Regulations Act, 1976 and Rules made thereunder is concerned, it operates in a different field and it has been exhaustively discussed in the foregoing paragraphs.
45. Now, this Court has not given any conclusion that the official respondents shall take the Management of the fourth respondent College by appointing a Special Officer like an arrangement under Section 53(A) of the Tamil Nadu Recognised Private Schools (Regulations) Act, 1973 as prevailing in the said case(1996-1 L.W.567), which was dealt by the Division Bench.
46. Here in the case in hand, the conclusion reached would be that, instead of the fifth respondent, any other representative of the Educational Agency/ Society(i.e.) Societies through the Managing Committee, can be nominated and accordingly, such nominee can be accepted, if he is otherwise qualified and he was not also tainted by facing any charges before any forum. The official respondents can approve such nomination as an interim arrangement / Adhoc Secretary.
47. In view of the said facts of that case, it is entirely different facts dealt with by the Division Bench in the said decision and in view of the conclusion going to be arrived at by this Court, the principles enunciated in the said Division Bench Judgment cannot be made applicable to the facts of the present case.
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48. As has been discussed above, the Managing Committee under bye-law 23 of the Educational Agency is entirely different from the College Committee under Section 11 and the Committee under Rule 8 of the Act and the Rules respectively. Therefore, a separate Committee should have been constituted under Rule 8 and a Secretary should have been nominated by the Educational Agency (i.e.) the Managing Committee from among the representatives of the educational Agency as the Secretary. Unless and until, such a separate procedure is adopted, this Court feels that, the procedure contemplated under the Act and the Rules made thereunder, has not been fully followed or complied with in making the nomination or appointment of the fifth respondent as the Secretary of the fourth respondent College.
49. At the risk of repetition, this Court wants to remind that, by mere election as a Secretary of the Managing Committee of the Educational Agency, the fifth respondent ipso facto cannot claim the Secretaryship of the College Committee or Committee within the meaning of Rule 8 and 9 of the Rules. Therefore, such a analogy sought to be drawn in the case, cannot be accepted by this Court, in view of the legal position discussed above.
50. Moreover, in the Division Bench judgment dated 20.12.2017 made in W.P. (MD) No.13026 & 13401 of 2017, a direction was given at paragraph no.17.16, stated supra, to the Director of the Collegiate Education, to conduct an enquiry against the very same fifth respondent and others. However, no documents, whatsoever, have been http://www.judis.nic.in 34/39 W.P.(MD) No.7331 of 2020 filed before this Court, whether any such enquiry was conducted, if so, what was the outcome of the enquiry.
51. The official respondents have also not filed any document to show that, they had come to a conclusion that, no such enquiry was necessitated and accordingly, it was not conducted. Therefore, this Court feels that, the respondents 2 and 3, despite being the parties to the said writ petition, where directions have been given, by order dated 20.12.2017, have not acted upon and this attitude on the part of the respondents 2 and 3 would combinedly go to show that, they have not taken care on whether a proper person, without tainted with any charge whatsoever, has been nominated in the position of the Secretary of the College, for which, Government is giving more aid every month. Without verifying all these aspects, since the approval for the Secretaryship of the fifth respondent has been given through the short and cryptic order, dated 17.06.2020, this Court feels that the said order cannot be given effect, atleast till the completion of the criminal case, where the trial has already commenced against the fifth respondent and others, and the fifth respondent comes out with clean hands after proving his innocence.
52. If the fifth respondent is not permitted to continue as Secretary, by keeping the impugned order in abeyance for some time, as indicated above, some alternative arrangement also have to be made. In this regard, this Court feels that, the Educational Agency may be requested by the second and third respondents to nominate any other representative of them, against whom, no such charge should have been made or http://www.judis.nic.in 35/39 W.P.(MD) No.7331 of 2020 pending before any forum and if such a representative is nominated or suggested by the Educational Agency, the second respondent can approve the functioning of such representative as an interim Secretary by way of stop gap arrangement.
53. In view of the aforesaid facts and circumstances and the discussions made above, this Court is inclined to pass the following order in this writ petition:-
(i) the impugned order passed by the 2nd respondent in K:/K:/vz;/10649/$p2/2020, dated 17.06.2020, shall be kept in abeyance till the criminal case, in Crime No.1 of 2018 on the file of the Special Court for Trial of Prevention of Corruption cases, Madurai, is completed and judgment is delivered;
(ii) Once the fifth respondent has come out with acquittal from the said criminal case, there could be no impediment for the official respondents to permit him to continue to hold the office of the Secretary of the fourth respondent College;
(iii) Till such time, the second and third respondents shall seek the nominee of the Educational Agency to be nominated as a Secretary of the fourth respondent College for the time being and if such a nominee is sponsored by the Educational Agency, who can be permitted to act as a Secretary, as an interim arrangement, till, either the fifth respondent candidature is cleared, as set out above or till the term of the present Managing Committee holds the office;
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(iv) When such a request is made by the second and third respondents, the Educational Agency of the fourth respondent College shall nominate one of its representative, who shall not be a person tainted with any charge pending before any forum and such person, on approval by the second respondent would act as Secretary of the Committee under Rule 8 & 9 of the Rules as indicated above.
54. With these directions, the Writ Petition is ordered accordingly. However, there shall be no order as to costs. The interim order of stay granted in W.M.P.(MD) No. 6780 of 2020 dated 06.07.2020 is made absolute to the extent indicated above. Consequently, W.M.P.(MD) No.7369 of 2020 to vacate the interim order stands dismissed.
27.08.2020
Index : Yes
Internet : Yes
sts
Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned. http://www.judis.nic.in 37/39 W.P.(MD) No.7331 of 2020 To:
1) The Secretary to Government, Department of Collegiate Education, St.George Fort, Chennai 600 009
2) The Director of Collegiate Education, EVK Sampath Maligai, College Road, Chennai 600 006
3) The Joint Director of Collegiate Education, EVK Sampath Maligai, College Road, Chennai 600 006 http://www.judis.nic.in 38/39 W.P.(MD) No.7331 of 2020 R.SURESH KUMAR, J.
sts Order made in W.P.(MD)No.7331 of 2020 Dated:
27.08.2020 http://www.judis.nic.in 39/39