Madras High Court
G.Sivasubramaniyam vs The Advocate General on 16 October, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.10.2012
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
Application Nos.4062, 4129, 4226, 4497 and 4498 of 2012
Application No.4062 of 2012 :
---------------------------
1.G.Sivasubramaniyam
2.S.Paramasivam
3.G.Sampath
4.P.Sekhar .. Applicants
Vs.
1.The Advocate General,
High Court, Madras.
2.The Teachers and the Employees of the
Pachaiyappa's Trust Board Colleges,
rep by its Secretary Dr.P.Shanthi
Joint Action Committee of AUT Units of
Pachaiyappa's Trust Board Colleges
@ CKN College for Women.
(2nd respondent impleaded vide order
dt.16.10.2012 in A.No.4226 of 2012) .. Respondents
Application No.4129 of 2012 :
---------------------------
Pachaiyappa's Trust Board,
rep by its Secretary,
Chennai-30. .. Applicant
Vs.
Advocate General,
High Court, Madras. .. Respondent
Application No.4226 of 2012:
---------------------------
The Teachers and the Employees of the
Pachaiyappa's Trust Board Colleges,
rep by its Secretary Dr.P.Shanthi
Joint Action Committee of AUT Units of
Pachaiyappa's Trust Board Colleges
@ CKN College for Women .. Applicant
Vs.
1.G.Sivasubramaniyam
2.S.Paramasivam
3.G.Sampath
4.P.Sekar
5.The Advocate General,
High Court of Madras. .. Respondents
Application Nos.4497 and 4498 of 2012 :
-------------------------------------
The Teachers and the Employees of the
Pachaiyappa's Trust Board Colleges,
rep by its Secretary Dr.P.Shanthi
Joint Action Committee of AUT Units of
Pachaiyappa's Trust Board Colleges
@ CKN College for Women .. Applicant in both applications
Vs.
The Advocate General,
High Court of Madras. .. Respondent in both applications
A.No.4062 of 2012 is filed to permit the applicants to conduct the elections and to fill up the five vacancies (i.e., two to be elected by the Hindu members of the Senate of the University of Madras, one to be elected by the Pachaiyappa's Trust Board College Council and two to be elected from amongst the electoral college consisting of all the approved teachers from all the colleges of Pachaiyappa's Charities) in the Pachaiyappa's Trust Board.
A.No.4129 of 2012 is filed to appoint an interim Administrator to administer the Pachaiyappa's Trust as per the terms of the Scheme Decree framed by this Court till the elections for the Board of Trustees is conducted.
A.No.4226 of 2012 is filed to implead the applicant as proposed second respondent in A.No.4062 of 2012.
A.No.4497 of 2012 is filed seeking to restrain the Board of Trustees of Pachaiyappa's functioning duty as Trustee till the election conducted.
A.No.4498 of 2012 is filed seeking to appoint a committee comprising of officers not below the rank of I.A.S. Officer to conduct the elections in respect of the Board of trustees in accordance with the Scheme Decree as amended by this Court in Order dated 24.09.2008 and in the interim period appoint an interim administrator, who is an officer not below the rank of an I.A.S Officer to take charge of the administration of the Trust till the election is conducted and the board of trustees is constituted in accordance with the Scheme Decree as amended by this court in order dated 24.09.2008.
For Applicants : Mr.R.Muthukumaraswamy, SC
for Mr.M.Vijayakumar in A.No.4062 of 2012
Mr.M.Devendran,
Standing Counsel for Pachaiyappa's Trust Board
in A.No.4129 of 2012
Mr.R.Yashod Vardhan , SC
for Mr.R.Kannan
in A.Nos.4226, 4497 and 4498 of 2012
For Respondents : Mr.A.Navaneetha Krishnan,
Advocate General
assisted by Mr.E.Sampath Kumar,
Spl.G.P.(Education)
- - - -
COMMON ORDER
All these applications relate to the functioning of the management of the Pachaiyappa's Trust running under the new scheme framed by this court. Hence all were grouped together and a common order is passed.
2.Application No.4062 of 2012 : This application is filed by the 4 remaining trustees of the Pachaiyappa's Trust elected in the elections held during the year 2009. In this application, the relief claimed by them is for permitting them to conduct the elections and to fill up the five vacancies. Out of 5 vacancies, two are to be elected by the Hindu members of the Senate of the University of Madras, one to be elected by the Pachaiyappa's Trust Board College Council and two to be elected from amongst the electoral college consisting of all the approved teachers from all the colleges of Pachaiyappa's Charities.
3.Application No.4129 of 2012 : This application is filed by the Secretary of the Pachaiyappa's Trust Board having office at Chennai for appointment of an interim Administrator to administer the Pachaiyappa's Trust as per the terms of the Scheme decree framed by this court till the election for the Board of Trustees is conducted.
4.Application Nos.4226, 4497 and 4498 of 2012 : These applications were filed by the Teachers and Employees of the Pachaiyappa's Trust Board Colleges, represented by its Secretary of the Joint Action Committee of AUT Units of Pachaiyappa's Trust Board at CKM College for Women, Cuddalore. A.No.4226 of 2012 was filed to implead itself as the proposed second respondent in A.No.4062 of 2012. A.No.4497 of 2012 was for restraining the Board of Trustees of Pachaiyappa's functioning duty as trustees till the election is conducted. In A.No.4498 of 2012, the association seeks for a direction to appoint a committee comprising of officers not below the rank of the I.A.S. cadre to conduct elections in respect of vacant post of trustees in accordance with the Scheme Decree as amended by this Court in Order dated 24.09.2008 and pending election, for the interim period, to appoint an interim administrator, who is an officer not below the rank of an I.A.S Officer to take charge of the administration of the Trust till the election is conducted and a board of trustees is constituted in accordance with the Scheme Decree as per the order of this court.
5.In these matters, notice was issued to the learned Advocate General. The learned Advocate General appeared personally at the first instance and also deputed Mr.Arvind Pandian, learned Additional Advocate General led by Mr.E.Sampath Kumar, learned Special Government Pleader (Education). It was the stand of the learned Advocate General that in the circumstances of the case, the matter can be dealt with by the court appropriately and whatever directions issued by this court will be carried out by him.
6.Heard the arguments of Mr.R.Muthukumaraswamy, learned Senior Counsel leading Mr.M.Vijayakumar, counsel appearing for the applicant in A.No.4062 of 2012, Mr.M.Devendran, learned Standing Counsel for Pachaiyappa's Trust Board and Mr.R.Yashod Vardhan, learned Senior Counsel leading Mr.R.Kannan in the applications filed by the Teachers and other employees.
7.Before dealing with the case, it has to be decided whether the teachers and other employees who filed an application for impleadment in A.No.4226 of 2012 can be impleaded as second respondent in A.No.4062 of 2012. In that application, the existing trustees raised a very strong objection and have filed a counter affidavit, dated 27.9.2012. Hence that matter will have to be decided first.
8.The stand of the teachers and other employees is that subsequent to the vacancies created, the existing trust board failed to conduct timely elections to elect the trustees and they have derelicted the duty imposed on them by the scheme framed. The funds of the trust were also not budgeted and spent in accordance with Clause 9 of the Scheme. The resolution of the Board were not sent to the Advocate General and to the Board of Revenue. The Commemoration day celebrations were not conducted by the trustees in violation of Clause 4 of the Scheme. Due to lack of attention and interest in the development of standards and infrastrucure, the colleges run by the trust were not having adequate teaching staff. No new teaching staff have been appointed in the last 10 years even though the Director of College Education had given approval for filling up 121 vacancies, which currently exist. Only the guest faculties have been appointed at huge cost and loss of more than Rs.150 crores was caused to the Trust. A pathetic situation also prevails in appointing the non teaching staff and administrative staff.
9.In the counter affidavit filed by the trustees, it was stated that the application is not maintainable either on facts or in law. The teachers and other employees are not necessary parties. They have also set out the steps taken by the trustees during the period of their tenure.
10.However, it must be noted that though elections were conducted and all 9 trustees assumed office on 09.10.2009, 5 members have resigned on various dates starting from 14.11.2011, 09.01.2012, 27.08.2012, 29.08.2012 and 28.08.2012, leaving only the existing 4 members, who were the applicants in A.No.4062 of 2012. Out of 5 members as noted already, two are to be elected by the Hindu members of the Senate of the University of Madras, one to be elected by the Pachaiyappa's Trust Board College Council and two to be elected from amongst the electoral college consisting of all the approved teachers from all the colleges of Pachaiyappa's Charities coming under the Trust board. Therefore, it is very clear that out of 5 members, 3 members will have to be elected from the trust board college council and from the electoral college consisting of all approved teachers. Therefore, it cannot be said that teachers have no locus standi and they should not be made as a party to the application filed by the existing trustees. In fact, the predominant activity of the trust is running colleges and educational institutions, which are numbering more than 15 institutions situated in Chennai, Kancheepuram and Cuddalore District. Further, the present amended scheme was settled by this court in O.S.A.Nos.47 and 58 of 2007 vide order dated 24.09.2008. In that, the first appellant is the association of University Teachers, which is the Pacnaiyappa's College Unit. After the non functioning of the Trust, the teachers and non teaching staff have been continuously representing various authorities. Therefore, it cannot be said that they cannot be heard in this application. The teaching and non teaching staff have a vital say in this matter, especially the trust is predominantly running educational institutions and an issue was raised relating to the vacancies for the electoral colleges comprising of teachers of various colleges. Hence A.No.4226 of 2012 will stand allowed.
11.There cannot be any doubt that vacancies caused in the trust board due to resignation of 5 trustees during various period has to be filled up in accordance with the new scheme for the management of the Pachaiyappa's charities. The controversy raised herein centres around as to who should conduct the elections and that till election for the remaining period of trusteeship is completed as to whom the power of administration of the trust should vest.
12.Before dealing with the facts of the case, it is necessary to refer to the Scheme regarding filling up the vacant posts of the trustees. Clause 11(B) of the scheme makes it clear that the Board of Trustees shall consist of 9 members elected in the manner prescribed therein. As per Clause 11(D), the vacancies arising on the Board of Trustees on the date of the passing of the scheme and all subsequent vacancies caused by the death, resignation or retirement of the trustees who shall be in office on the date of the passing of the amended scheme will have to be filled up by the electorates in the order prescribed therein. It is also stated that any vacancy on the board caused either by death, resignation or retirement of any member appointed under the amended scheme should be filled up by the electoral body which originally elected.
13.Under Clause 11(E), the occurrence of any vacancy in the board of trustees shall within 15 days of such occurrence be communicated by the board of trustees to the Advocate General of Madras and to the Board of Revenue, Madras. Under Clause 11(F), it shall be the duty of the board of trustees to make necessary arrangements for having the various elections, made within a month of the occurrence of any vacancy on the board of trustees. All the elections shall be conducted and the votes told and the result of the election shall be declared by a committee to be appointed by the board of trustees.
14.Clause 11(G), providing for default in the holding of elections, reads as follows :
"(G)Default in the Holding of Elections :
In default of an appointment being made to any vacancy within three months of the occurrence thereof, it shall be competent to the Advocate-General of Madras, the Board of Revenue, Madras or to any Hindu resident of Madras to apply, by Judge's summons entitled in this matter, to any Judge sitting on the Original Side of the High Court of Judicature at Madras, to fill up the vacancy; and it shall be competent to such Judge on such application and after directing the issue of publication of such notice as may be deemed necessary to appoint to the vacancy any person qualified to be appointed as member of the Board of Trustees." (Emphasis added)
15.Clause 11(J) together with explanation, relating to filling up of vacancies, reads as follows :
"(J)Cessation of Trusteeship:
Any member of the Board who becomes insolvent or is sentenced to imprisonment without the option of a fine or absents himself for six ordinary meetings in a calendar year or ten consecutive meetings of the Board at any time, shall ipso facto cease to be a member of the Board and shall not be re-eligible for the vacancy so caused.
Explanation :(For filling up of vacancies):-
1 - Any vacancy to the post of a Trustee during the tenure of the Trust Board under circumstances providing for cessation of Trusteeship shall be filled up within a period of three months by notifying the vacancy and securing the election of the vacant post from the respective electorate whose elected representative ceased to hold office." (Emphasis added)
16.Clause 11(L) dealing with quorum reads as follows :
"(L)Quorum :-
Five members of the Board shall form quorum for a meeting of the Board. There shall be an ordinary meeting of the Trustees once every month, Special meetings shall be called as often as may be necessary on a requisition from three Trustees."
(Emphasis added)
17.After elections held on 29.09.2009, the following trustees had resigned and their dates of resignation is given below :
1.Dr.Isari K.Ganesh, resigned as Trustee on 14.11.2011.
2.Mr.C.Saravanan, resigned as Trustee on 09.01.2012
3.Dr.M.K.Loganathan resigned as President and Trusteeship on 27.08.2012
4.Mr.A.Vetri Azhagan resigned as Financial Trustee and Trusteeship on 29.08.2012.
5.Mr.M.Padmanaban resigned as Trustee on 28.08.2012.
It is admitted by all concerned that a resignation takes effect immediately on it being submitted.
18.Though last three members resigned during August, 2012, the other two members' resignation had taken place in November, 2011 and January, 2012. No steps have been taken for filling up the vacancies and the trust was functioning without two members in the Trust. Therefore, the existing trustees have clearly violated the explanation to Clause 11(J). Once there was violation to fill up the post of trustees, then Clause 11(G) comes into operation. As seen above, Clause 11(G) had not only provided for either the Advocate General or the Board of Revenue of Madras or any Hindu resident of Madras to apply by judge's summons entitled in this matter to any judge sitting on the original side to fill up the vacancy and it shall be competent to such judge on such application and after directing the issue of publication of such notice as may be deemed necessary to appoint to the vacancy any person qualified to be appointed as the member of the Board of Trustees. It is in this context, the present applications assume importance. Therefore, there is necessity for this court to give direction to conduct the election for the trustee and for grant such direction. There is no disagreement between the parties who filed these applications.
19.The next question is whether the existing trustees who are 4 in number can be allowed to run the trust and also to conduct the elections. As noted above, under Clause 11(L), the board of trustees requires quorum of five members and they must conduct an ordinary meeting of the trustees once in every month and special meetings shall be called as often as it is necessary. This will make it clear that the existing trustees number 4 cannot constituted a quorum and hence consequently cannot run the affairs of the trust board. Without quorum being there, the administration of the trust has started facing serious problems. It is unable to pay the statutory dues, besides payment of salary to staff and operating bank transactions. Even for policy decision, the trust cannot meet.
20.As seen from the affidavit filed by the Secretary of the Trust in support of the application No.4129 of 2012 (more particularly in paragraph 6), even on an earlier occasion, when the trust was not functioning due to resignation of 4 trustees during the year 2005 and out of remaining 5 trustees, one had not participated in the board meeting and hence there was no required quorum, Application No.2378 of 2009 was filed before this court for taking a decision on majority in respect of the quorum of 5 members and another application No.3358 of 2005 for constitution of a committee to conduct the election to the trust as per the scheme decree. This court directed the trustees to hand over the trust to the Administrator General and Official Trustee of Tamil Nadu (AG&OT) and thereafter, the AG&OT took charge of the elections for the Board of Trustees and the entire election process took more than 10 months. It was in that election, the present trustees have got elected. Therefore, the present trustees cannot contend that they can function even though there is no requisite quorum in terms of Clause 11(L) and the truncated board of trustees may be allowed to conduct elections.
21.In such circumstances, the allegations made in A.Nos.4497 and 4498 of 2012 filed by the teachers and other employees assume importance. In the affidavit filed in support of those applications, they had stated that no audit of accounts of the Board of Trustees were carried out as per the mandate under Clause 8 of the Scheme. Further, due to land acquisition for laying Metro Rail project (CMRL), a sum of Rs.10 crores was paid to the Pachayaippas' college and Rs.18 crores to CKN College, Anna Nagar, Chennai and they were not properly accounted and spent for development of the institutions. The amounts were deposited by the trustees fetching low interest in various banks. Further huge vacancies have accrued as many as 121 vacancies, thereby crippling the educational activities of the college and every college under the board management is functioning below sanctioned strength, thereby reflecting fallen standards of education and infrastructure. It was also stated that since the existing trustees have not taken steps to fill up the vacancies and though some vacancies have been there for more than 9 to 11 months and trustees themselves cannot conduct the trust affairs because of lack of quorum, this requires an interim administrator to be appointed for conducting the affairs of the management of the Pachaiyappa's Charities and also for conducting election for the remaining vacancies so that a full board of trustees can start functioning for the remaining and unexpiry term of two years.
22.During 2005, the management of the trust was directed to be handed over to the AG&OT for conducting the elections. It is now stated by all sides that the AG&OT for conducting election had caused the trust board a sum of Rs.46 lakhs for the services rendered. Therefore, all are unanimously concerned that the matter of running the affairs of the trust as well as conducting election should not be left to the hands of the AG&OT, who not only lacks experience, but also had caused huge expenditure. Further, until such election is held and till the board of trustees assume office, the question of the existing four trustees running the trust will not arise due to lack of quorum and also their not taking steps as mandated under the scheme. Hence they will not be allowed to function till such time election results are notified and new trustees take charge and constitute a full board.
23.In the light of the above, the application filed by G.Sivasubramaniyam and 3 others in A.No.4062 of 2012 is negatived and stands dismissed. Application No.4129 of 2012, filed by the Secretary, Pachaiyappa's Trust Board for appointing an interim Administrator to administer the Pachaiyappa's trust as per the terms of the Scheme Decree framed by this court till the election for the Board of Trustees is conducted, is allowed. Similar prayer in A.No.4498 of 2012 insofar as the appointment of a committee of officers not below the rank of an I.A.S. Officer is not feasible for compliance. There shall be only one interim administrator to run the affairs of the Trust till the election is held is sufficient. To that extent, A.No.4498 of 2012 is partly allowed in terms with the relief granted in A.No.4129 of 2012. The question of allowing the existing board of trustees to function or to conduct the election has been negatived in A.No.4062 of 2012, application in A.No.4497 of 2012 will stand allowed. The existing trustees cannot function until full board of trustees are re-constituted after the elections conducted by the interim administrator.
24.In view of the above, this court is constrained to issue the following directions :
(i)This court appoints Mr.T.N.Seshan (Retired I.A.S. and also Retired Chief Election Commissioner of India), residing at No.167, St. Marys Road, Chennai-600 018 as the Interim Administrator (I.A.). He shall take charge of the management of the Pachaiyappa's charities with an immediate effect.
(ii)The I.A. shall administer the Trust until a new board of trustees take charge after conducting elections for the trust board.
(iii)The I.A. shall be paid an honorarium of Rs.75,000/- (Rupees seventy five thousand) per month, which he can draw from the funds of the Trust Board.
(iv)The I.A. is also entitled for car allowance of Rs.25,000/- (Rupees twenty five thousand) to defray the expenditure towards traveling.
(v)After assuming charge, the I.A. will make necessary preparation for conducting election for 5 vacancies in the trust board as per clause 11 of the new scheme framed for management of the Pachaiyappa's charities, which include two to be elected by the Hindu members of the Senate of the University of Madras, one to be elected by the Pachaiyappa's Trust Board College Council and two to be elected from amongst the electoral college consisting of all the approved teachers from all the colleges of Pachaiyappa's Charities in the Pachaiyappa's Trust Board.
(vi)For conducting election, the I.A. can take the assistance of any person he thinks proper. The I.A. can also draw funds towards the expenditure for conducting elections from the trust board.
(vii)For any further direction, the I.A. can seek appropriate orders from the Judge dealing with Applications on the Original Side.
(viii)Apart from this task, in view of the grave situation created by non filling up of posts, the I.A. will specially attend to the question of filling up the vacant posts in the colleges run by the Trust besides his other work.
(ix)Serious complaints have been made regarding the large number of vacancies in the matter of teachers in various colleges run under the trust number more than 120, for which steps were initiated as early as in August, 2009 calling for applications to fill up the post of lecturers for the six Arts and Science Colleges run by the Trust in Chennai, Kancheepuram and Cuddalore by direct recruitment and at that time, the vacancies were about 111 and presently, the vacancies have been said to be more than 121, the I.A. will immediately start the process of recruitments in accordance with the guidelines issued by the University Grants Commission and subsequent notifications issued by the State Government. Since the recruitment of teachers is governed by the provisions of the Tamil Nadu Private Colleges (Regulations) Act, 1976 the process of filling up the vacancies need not wait for the completion of the election which may likely to take some more time.
(x)Until the full strength of the trustees is established by due process of law, the interim administrator shall exercise all powers vested with the trustees under the scheme including administration, financial and all personal management and in all activities of the Trust.
(xi)The administrator is empowered to hire a personal Secretary to assist him in his work. He is also entitled working space, personal staff and communication facilities. He can also draw assistance from the existing staff of the Trust as he may deem fit as necessary.
25.In the result, A.No.4062 of 2012 will stand dismissed. A.No.4129 of 2012 will stand allowed. A.No.4226 of 2012 will stand allowed and that the association is made as second respondent in A.No.4062 of 2012. A.Nos.4497 and 4498 of 2012 will stand allowed to an extent indicated above.
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