Madras High Court
Tmt. K.Renuka vs The Government Of Tamilnadu on 19 March, 2012
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:19.03.2012
CORAM:
THE HONOURABLE MR.JUSTICE VINOD K.SHARMA
W.P.No.17527 of 2011 and
M.P.Nos.1 to 3 of 2011
TMT. K.RENUKA ... PETITIONER
-vs-
1. THE GOVERNMENT OF TAMILNADU
REP BY ITS SECRETARY,
EDUCATION DEPARTMENT,
FORT ST.GEORGE, CHENNAI
2. THE DIRECTOR OF SCHOOL EDUCATION,
COLLEGE ROAD, CHENNAI 6
3. THE CHIEF EDUCATIONAL OFFICER
KANCHIPURAM
4. THE DISTRICT EDUCATIONAL OFFICER,
KANCHIPURAM
5. AMBALAVANAR ARAPORUPPU AYAM,
WALAJABAD, KANCHIPURAM,
REP BY ITS SECRETARY ... Respondents.
Prayer: Writ petition is filed under Article 226 of Constitution of India for the issuance of a Wit of Certiorari, calling for the records relating to the impugned order of the 4th respondent District Educational Officer Kanchipuram Na. Ka.No. 1292/A1/2011 dated 04.07.2011 granting approval to the School Committee of W.T. Masilamani Mudaliar Higher Secondary school Walajabad Kanchipuram quash the same
For Petitioner : Mr.R.Thyagarajan, S.C.,
For Mr.S.Giridharan
For R1 to R4 : Mr.R.Ravichandran, AGP &
Mr.P.Karthikeyan, GA
For R5 : Mrs.G.Thilakavathy
*****
O R D E R
The petitioner prays for issuance of a writ in the nature of Certiorari, to quash the order Na. Ka.No. 1292/A1/2011 dated 04.07.2011 approving the School Committee of W.T. Masilamani Mudaliar Higher Secondary School, Walajabad, Kanchipuram.
2. The grand father of late W.T.Masilamani Mudaliyar formed a Trust Ambalavanar Araporuppu Ayam at Walajabad, Kanchipuram in the year 1963, with an object to give best education to the local people, who are socially and educationally backward.
3. The Trust started various schools in and around the area and majority of people living in the Walajabad village and surrounding areas are dependent on these schools to give education to their children. Some of the students are also doing part time job for their livelihood, and then attend the school.
4. As per the constitution of the Trust, originally there were seven trustees, who were to continue till their lifetime. It was stipulated that after death of W.T. Masilamani Mudaliar, his family member is to be included as a member of the Trust. The qualification for being included as trustee was also prescribed in the Trust deed.
5. The petitioner submits that she is grand daughter of Thiru W.T. Masilamani Mudaliar and fulfils all the required qualification as per the Trust Deed. After death of Thiru W.T. Masilamani Mudaliar, no one from his family was included as trustee in the Trust. The petitioner brought this to the notice of the Board of Trustees on several occasions, but no action was taken by the Board of Trustees to include the family member of late Thiru W.T. Masilamani Mudaliar, as one of the trustees.
6. The Director of School Education on 26.10.1977, pointed out that no one from the family of W.T. Masilamani Mudaliar was included in the Trust and directions were also issued to the District Educational Officer to verify whether trustees were appointed as per the Trust Deed before granting approval.
7. It is the submission of the petitioner that the Secretary of the Trust, by suppressing the facts regarding non inclusion of family members of late Thiru W.T. Masilamani Mudaliar, sent the proposal to the District Educational Officer for approval for appointment as Secretary. The request was accepted and appointment of the Secretary by the Trust was approved. That in the present Trust Board, the family members of late Thiru W.T. Masilamani Mudaliar was not included as trustees. The Trustees of Board are as under:
1.Thiru B.Kandasamy President
2.Thiru P.Radhakrishnan Secretary
3.Thiru W.N.Thirunavukarasu Assistant Secretary cum Treasurer
4.Thiru S.Rajendran Member
5.Thiru Lakshmanan Member
6.Thiru S.L.N.S.Vijayakumar Member
7.Thiru Dr.M.S.Amarasan - Member That none of the trustees is the family member of late Thiru W.T. Masilamani Mudaliar. The petitioner, in view of stipulation contained in the Trust Deed and also in view of the communication dated 26.10.1977, has requested the Board of Trustees to include petitioner as member of the Trust Board, but the Board of Trustees sought approval for their term of office for further period of 3 years from 2011 to 2014.
8. It is the submission of petitioner that respondent no.5 is continuing as Secretary for the past several years and made several alienation of trust properties without approval of the competent Court, and has let out trust properties for a meagre rent to other trustees, and is also acting against Rules and Regulations of the Trust, as also the Tamilnadu Recognised Private Schools (Regulations) Act, 1973 (hereinafter referred to as 'the Act') and the rules framed therein, and is further acting contrary to the Government Orders, circulars and other proceedings.
9. However, for the reason best known, the petitioner has not impleaded Secretary of the Trust either in his official capacity or in individual capacity, as respondent no.5 is not the Secretary, but the Trust.
10. Allegations are also that the Secretary and Trustees are guilty of gross misfeasance of their position and power and have breached the clauses of the Trust.
11. As already noticed above, neither the Secretary nor Trustees are party to this writ petition. The pleading only shows that the petitioner is not able to distinguish between the Trust, its Secretary and Trustees.
12. The term of educational agency and the School Committee of W.T. Masilamani Mudaliar Higher Secondary School, Walajabad, expired on 05.03.2011. The 5th respondent, i.e., Trust sent proposal for approval of educational agency and the School Committee for further period of three years from 2011 to 2014. The petitioner submitted a detailed representation to the respondents against approval of educational agency for further period on the ground that stipulation in the Trust Deed stands violated in not appointing the family member of late Thiru W.T. Masilamani Mudaliar.
13. It is the submission of petitioner that the District Educational Officer, Kanchipuram, instead of taking action on the representation, filed by petitioner, suddenly approved the educational agency and school committee.
14. The petitioner, being aggrieved by action of respondent no.4, filed W.P.No.2468 of 2011, for issuance of writ in the nature of Mandamus, directing the 4th respondent, District Educational Officer, Kanchipuram, to hold enquiry, after giving opportunity to the petitioner before passing order of extending the term of office of its bearers of the Trust for further period of 3 years. Interim injunction was granted by this Court, restraining the Educational Officer from granting approval. The injunction was extended during pendency of this writ petition.
15. The writ petition field by petitioner was held to be not maintainable, but was disposed of with liberty to the petitioner, person interested, respondent concerned or competent authority to move Civil Court for necessary relief. The operative part of the order reads as under:
VERNACULAR (TAMIL) PORTION DELETED
17. On a reading of the above provisions, it is clear that in respect of the educational agency and the School Committee, the authorities are competent to examine the question and the educational agency shall nominate one of its representatives as Secretary of the School Committee and if such proposal is sent by them, they can look into the matter. With regard to the inclusion of a person as a Trustee in the Board of Trustees, as per the intention of the testator-W.T.Masilamani Mudaliyar in respect of the Trust Deed, no doubt, it is admitted that the testator has intended for nomination of a member of the family as a Trustee, after his death. It is the stand of the Trustees that the nomination was not available after the death of Kumarasivam and thereafter, his son Thirunavukkarasu involved in mal-administration and now, the petitioner is claiming her inclusion as a Trustee and before doing that, she prayed for a direction to conduct enquiry.
18. As per Section 92 of the CPC, the Civil Court is competent to deal with the matter regarding the appointment of a new Trustee. Section 92(1) CPC reads as follows:
Section 92: Public charities:--(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the leave of the Court may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate, to obtain a decree-- ... ...
.......
(b) appointing a new trustee
------
19. In the instant case, the claim of the petitioner is that the intention of the testator-W.T.Masilamani Mudaliyar, be carried out by including a family member as the Trustee, and therefore, it is the claim of the petitioner to appoint her as a Trustee she being one of the family members. It is not materially proved that the authorities are empowered to conduct enquiry before granting the approval of the extension of the term of office for the present office bearers of the Trust. The Secretary of the School Committee has to be nominated by the educational agency as provided under Rule 13 of the said Rules. Section 53 of the said Act provides bar of Civil Court from deciding questions under the said Act. In case of any dispute over the educational agency, the same has to be settled by the competent Court having jurisdiction, as provided under Section 53-A(1) of the said Act. Sections 53 and 53-A(1) of the said Act reads as follows:
"Section 53: Civil Court not to decide questions under this Act: No Civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act required to be decided or dealt with by any authority or officer mentioned in this Act."
"Section 53-A : Settlement of dispute as to educational agency, etc.-- (1) Notwithstanding anything contained in Section 53, whenever any dispute as to the constitution of any educational agency, or as to whether any person or body of persons, is an educational agency, in relation to any private school, or as to the constitution of a school committee, or as to the appointment of the secretary of the school committee, arises, such dispute may be referred by the persons interested or by the competent authority to the civil court having jurisdiction, for its decision."
20. On a reading of the above provision, it is clear that the dispute has to be referred either by the person interested or by the competent authority, to the Civil Court having jurisdiction for its own decision.
21. Therefore, the only remedy available to the parties is that either the petitioner or any person interested or the competent authority, has to move the Civil Court having jurisdiction. On the other hand, the petitioner has invoked the Writ jurisdiction under Article 226 of the Constitution of India, for inclusion of her name as a Trustee in the Board of Trustees or for the educational agency, and to conduct an enquiry before granting approval to the extension of the term of office for the present office bearers of the Trust, which are all not under the realm of the extraordinary writ jurisdiction of this Court. Therefore, taking into account the over-all facts in this case and that in respect of the Trust properties, the Supreme Court is seized of the matter and the petitioner herein claims for inclusion of her name in the Trust Board and the same being the dispute between the parties, this Court is of the considered view that the Writ Petition does not merit consideration invoking Article 226 of the Constitution of India.
22. However, it is open for the person interested or the competent authority, to decide as to whether the claim of the petitioner is a matter to be referred to the competent Court of civil jurisdiction and it is for them to initiate appropriate steps to refer the same before the Civil Court of competent jurisdiction.
23. Therefore, liberty is granted to the petitioner or the person interested or the respondents concerned or the competent authority, to move before appropriate Civil Court of competent jurisdiction to decide the issue raised in this Writ Petition, in which event, it is open to the parties concerned to agitate all the pleadings raised in this Writ Petition and all other available grounds, before the Civil Court. It is made clear that while deciding the case, the Civil Court shall independently decide the issues raised, uninfluenced by any of the observations made in this order, on merits and in accordance with law.
24. With the above observations/directions, the Writ Petition is disposed of. No costs. The Miscellaneous Petitions are closed."
16. The petitioner, after decision, filed a detailed Memorandum to the Director of School Education on 03.06.2011 for invoking Section 53-A of the Act, but there was no response. The petitioner thereafter issued a legal notice on 14.06.2011, but still no steps were taken to refer the matter to Civil Court.
17. No reasons have been given as to why petitioner did not approach the Civil Court, as liberty was given to the petitioner to get the dispute decided by Civil Court.
18. The petitioner filed W.P.No.15980 of 2011 for directing the Director of School Education, Chennai to refer the dispute raised by petitioner in her Memorandum dated 03.06.2011 to the Civil Court in pursuance to the observation made by this Court, while disposing of W.P.No.2468 of 2011.
19. This writ petition was prima facie not competent, as it was hit by constructive resjudicata, as this very relief was not only available, but was specifically claimed by petitioner in W.P.No.2468 of 2011, in which liberty was given to the petitioner to move Civil Court. This writ petition was again entertained and interim injunction was granted, restraining the District Educational Officer from granting approval to the educational agency / school committee for two weeks.
20. In the meantime, the Secretary to Government of Tamilnadu, Education Department, Chennai directed the Director of School Education vide his Letter dated 05.07.2011, to take appropriate action on the Memorandum filed by the petitioner and report the matter to the Government.
21. At the time of argument of writ petition, learned Government Advocate, produced a letter of the District Educational Officer dated 04.07.2011, granting approval to the school committee / educational agency for the period from 06.03.2011 to 05.03.2011.
22. The petitioner, therefore withdrew the writ petition, with liberty to challenge the order, granting approval to the educational agency.
23. The impugned order of granting approval to the educational agency is challenged on the ground that impugned order is highly arbitrary and unreasonable, as the Trust running the school, has not been constituted as per Trust Deed, as no member of the family member of late Thiru W.T. Masilamani Mudaliar is included as trustee.
24. The order is also arbitrary being contrary to directions issued by the Secretary, Education Department, Chennai, directing respondent no.2 to take action on the petitioner's memorandum dated 03.06.2011, for referring the matter to the competent Civil Court, as directed by this Court in W.P.No.2468 of 2011 under Section 53-A of the Act.
25. This contention on the face of it is wrong and misleading, as no directions were issued in W.P.No.2468 of 2011, as it was only left open to the authorities to take decision whether the matter is required to be referred under Section 53-A of the Act. Needless to mention that the petitioner was also given liberty to move civil Court.
26. It is submitted that in view of the Memorandum dated 03.06.2011, filed by petitioner, requesting the respondents to refer the matter under Section 53-A of the Act, it was not open to grant approval without deciding the representation of the petitioner.
27. Section 53-A of the Tamilnadu Recognised Private Schools (Regulations) Act, 1973, reads as under:
"53. No Civil court shall have jurisdiction to decide or deal with any question which is by or under this Act required to be decided or dealt with by any authority or officer mentioned in this Act."
53A. (1) Notwithstanding anything contained in section 53, whenever any dispute as to the constitution of any educational agency, or as to whether any person or body of persons, is an educational agency, in relation to any private school, or as to the constitution of a school committee, or as to the appointment of secretary of the school committee, arises, such dispute may be referred by the persons interested or by the competent authority to the civil court having jurisdiction, for its decision.
(2) Pending the decision of the civil court on a dispute referred to it under sub-section (1), or the making of an interim arrangement by the civil court for the running of the private school, the Government may nominate an officer to discharge the functions of the educational agency, the school committee or the secretary, as the case may be, in relation to the private school concerned."
28. This writ petition is opposed by the respondents. In the counter filed by the 4th respondent, it is stated that the Director of School Education vide his order D.Dis.No.255970 (G3)/77 dated 27.02.1978, instructed the District Educational Officer, Kanchipuram to approve the school committee of W.T. Masilamani Mudaliar Higher Secondary school Walajabad, under the Secretaryship of N.P.Thanigaiarasu under Rule 13(2) of the Tamil Nadu Recognised Private School (Regulation) Rule 1974.
29. It is submitted that the Trust is functioning since 1978 without the family members of late Thiru W.T. Masilamani Mudaliar. It is the submission of respondent no.4 that question of inclusion of petitioner as one of the trustees of late Thiru W.T. Masilamani Mudaliar can be decided by the Trust on its own or by order of competent Civil Court under Section 53-3 of the Act, but it does not lead to conclusion for inclusion of petitioner in the Trust. It is also submitted by respondent no.4, that the approval was granted in obedience to the order passed by this Court in W.P.No.13305 of 2011, decided on 14.06.2011.
30. It is also submitted that the Secretary of the Trust filed W.P.No.13305 of 2011, praying for a writ of Mandamus, directing respondents to grant approval to the school committee of W.T. Masilamani Mudaliar Higher Secondary school Walajabad for the period 2011 to 2014 in pursuance to the representation dated 18.05.2011 with necessary rectification in resolution dated 18.05.2011.
31. The said writ petition was disposed of by this Court. The operative part of the order reads as under:
"3. Since the appeal is pending in respect of the members to be nominated to parents teachers association before the third respondent, it is for the third respondent to dispose of the same in accordance with law. Accordingly, the writ petition is disposed of with a direction to the third respondent to dispose of the appeal dated 18.05.2001 of the petitioner, which was filed for the purpose of recognition of the school committee taking note of the above said facts and pass orders on merits and in accordance with law, within a period of two weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed."
32. The reading of the order of this Court shows that there was no direction issued to the respondents to grant recognition to the school agency, as stated in the counter. This Court had merely directed the respondents to dispose of the appeal dated 18.05.2011 in accordance with law.
33. The 5th respondent contested this writ petition on the ground that the writ is not maintainable, as the petitioner is acting in self interest and attempting to meddle with the administration of the Higher Secondary School in violation of the provisions of the Act and the rules framed therein.
34. It is the case of 5th respondent that the petitioner has made wild allegations, and this Court has already held that writ petition was not maintainable. As regards to family member of the founder, being member of the Trust, a reply in the counter is as under:
"9. The Founder expressed his wish that the successor members of his family should form a part of the administration of the Trust as Board of Trustees. After the date of W.T. Masilamani Mudaliar in the year 1967, Kumarasivam, the only son, who had estranged from W.T. Masilamani Mudaliar, even during the lifetime of W.T. Masilamani Mudaliar warranted Thiru W.T. Masilamani Mudaliar to make a public announcement that no claim whatsoever should be made by Kumarasivam and any act of encumbrance by the said Kumarasivam to his personal or Trust properties would be binding. The behavior of Kumarasivam resulted in mismanagement and waste of corpus of the trust as he had indulged himself in nefarious activities by creating false, fraudulent, fictitious, unlawful documents by way of sale which had no legal sanction even during the lifetime of W.T. Masilamani Mudaliar and only as a precautionary measure, W.T. Masilamani Mudaliar was compelled to issue a paper notification to that effect. Such being the activity of the said Kumarasivam, on the death of W.T. Masilamani Mudaliar he forced himself to the trust activities, to which the other trustees could not raise any objections. By way of his unwanted activities he was implicated in a criminal case under provision of the Indian Penal Code to which he was convicted and he was rendered disqualified and unfit to continue as a Secretary of the school committee of W.T. Masilamani Mudaliar Higher Secondary School, Walajabad, in the year 1973 and thereafter he died in the year 1974.
10. After the death of Masilamani Mudaliar, as stated already, his son, Kumara Sivan was inducted and he being disqualified on conviction, the Board came to be reconstituted with one Mr.N.P.Thanigaiarasu who was the then Joint Secretary was inducted as a Secretary and the school committee was constituted in the year 1978. It was a matter of fact that Kumara Sivan died on 05.06.1975.
11. Only keeping in mind the terms of the Trust Deed, the direct family members of W.T. Masilamani Mudaliar not being available for consideration to be brought on record is with the approval of Kumara Sivan in the year 1975 his son were of the age group i.e. 17 years and being the son he was disqualified in terms of age and none of the girls of the family who were all married and gone were available for consideration. However, the then Board of Trustees had inducted the family members of W.T. Masilamani Mudaliar, bearing in mind the terms of the Trust Deed, whereby W.N.Nataraja Mudaliar son of Thiru.Duraiswamy Mudaliyar, the brother of W.T. Masilamani Mudaliar, was brought as the Trustee on the Board of Trust in the year 1963 and he functioned as the President of the Trust throughout his life-time till his son Thiru W.N.Thirunavukkarasu Mudaliar was inducted as a Trustee only for the reason that he happened to be the family member of W.T. Masilamani Mudaliar who is functioning as on date as on date as the Joint Secretary and he is also the Treasurer of the Trust, as on date. Further, another close relative of W.T. Masilamani Mudaliar, Dr.Amaresan who is his sister's grandson and renowned Nephrologist has been inducted in the Board of Trust which adequately satisfies the terms of the Trust Deed."
35. The plea raised, therefore, is that the Trust Deed includes family member of late Thiru W.T. Masilamani Mudaliar. The stand is also that there is no irregularity in the order passed by the 4th respondent.
36. It is also submitted that grievance of the petitioner is not the dispute falling within the purview of Section 53-A of the Act. The competent authority, therefore, cannot refer the dispute to the Civil Court. It is prayed that writ petition be dismissed.
37. Learned Senior Counsel for the petitioner challenged the impugned order on the ground, that in view of the dispute raised qua the constitution of the educational agency, it was incumbent upon the competent authority to refer the dispute to the Civil Court under Section 53-A of the Act, as referred to above.
38. In support of this contention, learned Senior Counsel for the petitioner placed reliance of this Court in the case of V.Muthuraja vs. The Director School Education and others, 2001 Writ L.R.347, wherein it has been laid down that;
"Held: it is to be noted that as per section 53-A of "The Act" when a dispute is to be referred by the parties to the dispute, it must be referred only by the persons interested. The words "Persons Interested" should mean that all the persons who are interested in the dispute should be parties to the suit. In the absence of all the persons interested joining together to raise a dispute, the power conferred on the Competent Authority to refer the dispute assumes importance. Moreover, when a dispute is referred by an individual person interested impleading the persons of his choice, any decree that may be passed on such dispute may not be binding on the other persons interested in the dispute. Only to avoid such a contingency, the Legislatures have thought it fit to use the words "Persons Interested" in Section 53-A of "The Act". Admittedly, in this case though the petitioner along with one M.Rathinasamy Nadar disputed and questioned the formation of educational agency and school committee, only M.Rathinasamy Nadar resorted to file the suit and the petitioner had resorted to pursue his letter dated 27.6.2000 addressed to the respondents 1 to 3 requesting them to refer the dispute. Section 53-A enables either the Competent Authority to refer the dispute or the persons interested'. Therefore, it is for the persons interested to either go to Civil Court or to approach the Authorities requesting the Authorities to refer the matter to Civil Court. When a suit could not be initiated by all persons interested, the only remedy to an individual person interested is to request the Competent Authorities to refer the dispute. When in fact a power is conferred on the Competent Authority, I do not find any error in the petitioner approaching the Competent Authority requesting for referring the matter to the dispute instead of approaching this Court."
39. The contention of learned Senior Counsel was that it was not possible to the petitioner to go to Civil Court. Therefore, request had been made to the official respondents for referring the matter to the Civil Court.
40. Learned Senior Counsel, thereafter, placed reliance on the judgment of the Hon'ble Supreme Court in the case of Swamy Atmananda and others vs. Sri Ramakrishna Tapovanam and others, (2005) 10 SCC 51, wherein the Hon'ble Supreme Court, while interpreting Section 53-A of the Act, was pleased to lay down as under:
VERNACULAR (TAMIL) PORTION DELETED A dispute as to who is the real educational agency in relation to a private school is not a matter which in terms of the provisions of the said Act would be determined by an authority under the provisions of the said Act. Section 53A of the Act carves out an exception to Section 53 thereof. In terms of the said provision any dispute as to the educational institution is to be determined by a Civil Court having jurisdiction for its decision. The submission of Mr. Sukumaran, however, is that the jurisdiction of the Civil Court is required to be invoked in such matters specified therein by way of reference by the persons interested or by the competent authority. Mr. Sukumaran would contend that such a reference would be akin to a dispute pending under the Industrial Disputes Act. We cannot accept the said contention. A party to a dispute may not join the other in referring the same to the Civil Court. The party may agree or may not agree therefor. A person having a grievance as against other must have a remedy. The maxim 'ubi jus ibi remedium' is not an empty formality. The jurisdiction of the Civil Court exemplifies the said doctrine. The jurisdiction of the Civil Court cannot be held to have been ousted unless it is so, expressly or by necessary implication, stated in the statute. In terms of Section 53A of the Act, a dispute as to educational agency is concededly required to be decided by a Civil Court. How the jurisdiction of the Civil Court is required to be invoked is a matter to be examined by the Civil Court. Unlike a private tribunal or a statutory tribunal which would not derive a jurisdiction unless a reference in terms of the provisions of the Act is made to it, the Civil Court enjoys a plenary jurisdiction. Furthermore, if and when a dispute arises before the competent authority as regard entitlement of an educational agency in relation to educational institutions, the same must also be referred to the Civil Court. Statutory authority in terms of Section 5 of the Act cannot be said to have any jurisdiction to determine such a dispute. A statute, as is well-known, must be read in such a manner so as to give effect to the provisions thereof. It must be read reasonably. A statute must be construed in such a manner so as to make it workable. The wordings "referred by the persons interested" would, thus, mean a person who has a grievance as regard claim of other side relating to educational agency of the educational institutions. It can be done by filing a suit before the Civil Suit. The term "persons" which is plural has been used having regard to the fact that educational agency need not be a person alone but would also include a society registered under the Societies Registration Act or a body corporate in terms of the Companies Act. In any event, if such a dispute within the contemplation of Section 53A has to be decided by a civil court, it will not attract the bar under Section 53 which applies only to a question which is required to be dealt with or decided by any authority or officer mentioned in the Act."
41. Reliance by the learned Senior Counsel for the petitioner was also placed on the judgment of the Hon'ble Division Bench of this Court in the case of K.Rajasekar vs. District Educational Officer, Sivagange and others, (2004) MLJ 84, wherein the Hon'ble Division Bench of this Court was pleased to lay down as under:
"19. A plain reading of the provisions of the above Section, reveals that when there is a dispute with regard to educational agency or appointment of Secretary, the matter may be referred to a Civil Court having jurisdiction and pending decision, the Government may appoint an officer to look into the affairs of the management of the school.
20. Taking into consideration of the above facts and circumstances of the case, which make abundantly clear that from the very beginning, there is a dispute between the parties with regard to educational agency and secretaryship, and the provisions of the said Section, which supported the action of the Director of School Education, Chennai, the principles laid down in the above said decision is not squarely applicable to the case on hand as no case was made out that there was properly and validly elected Educational Agency or School Committee and therefore, we are of the view that the learned Judge of this Court rightly referred the matter to the Civil Court with certain directions as stated supra. We do not find any infirmity in the order of the learned single Judge of this Court."
42. Learned Senior Counsel for the petitioner placed reliance on the judgment of the Hon'ble Division Bench of this Court in A.Karuppiah Pillai and 3 others vs. The District Educational Officer and others, 1994-1 L.W. 506, to contend that though the expression used under Section 53-A(2) of the Act is "may" and power is coupled with duty and has to be exercised when there is a dispute relating to the matters touching the very administration of a private school.
43. Learned Senior Counsel also placed reliance on the judgment of this Court in the case of Dr.N.Rengarajan vs. The State of Tamil Nadu and others, 2000 Writ L.R.444, to contend that in absence of interested parties, agreeing to refer the matter to the Civil Court, it is the duty of the respondents under Section 53-A of the Act, to refer the dispute to the Civil Court. This Court in this case pleased to lay down as under:
"15. I find force int he contention of learned counsel for respondent that Section 53-A contemplates a case of submitting the dispute before a Court, i.e., all persons interested must submit to the jurisdiction of the Court, for its opinion. Order 36 of the Code of Civil Procedure which deals with Special case provides for such contingencies. Taking into consideration the Scheme of the Act, it is clear that the jurisdiction of the Civil Court is completely ousted. Section 53-A itself was incorporated by an Amendment, and that is an exception to Section 53. Being an exception, it hs to be given strict interpretation, and the words used as 'referred to by persons interested'. It is not the institution of a suit that is contemplated under Section 53-A. Likewise, if the persons interested do not refer the matter to Civil Court having jurisdiction, a competent authority is entitled to refer the matter to the Civil Court having jurisdiction, as in the case of an Inter-pleader suit under Order 35, C.P.C. or like a Land Acquisition Reference and seek a decision of the Court, as to which is the Educational Agency, and what are their inter se rights, etc. A person claiming himself to be an Educational Agency against another, cannot be said to be a Reference as contemplated under Sec.53-A. But, even though this view I am taking, there are certain observations by a Division Bench of this Court which imply a different view. In fact, the scope of Section 53-A of the Act was not finally decided therein, but it is binding on me. That decision has been reported in 1994-1-L.W.506 (Karuppiah Pillai, A and 3 others v. The District Educational Officer, Tenkasi and 5 others). In that case, the only question that was raised was, what is the scope of the discretion to be exercised by the State Government. In fact, this point whether there should be a reference by all the persons interested together, was not decided in that case. But the decisions was taken in a suit filed by one of the rival claimants, who had already filed a suit before the Civil Court. He moved for an interim order, but he was not successful. In that case, an argument was taken that if a dispute arises as to who is the Educational Agency, a duty is cast on the Government under Section 53-A of the Act to nominate an Officer to discharge the functions of an Educational Agency. A Writ Petition was filed to compel the Government to appoint a Special Officer on the ground that it is only a discretion on the part of the Government to decide whether a Special Officer should be appointed or not. The same was challenged before the Division Bench. While considering the same, in paragraph 6 of the judgment, it was held thus:
"We are now concerned with Sub-Section (2) of S.53-A. It is not disputed that there is a dispute relating to the Constitution of educational agency, pending before the Civil Court. As per Sub-Section (2) of S.53-A, the State Government is entitled to exercise the power and nominate an officer to discharge the functions of the educational agency, pending the decision of the Civil Court on a dispute referred to it under Sub-Section (1) or making an interim order by the Civil Court for the running of a private School. Sub-Section (1) enables a person interested in the educational institution to refer the dispute to a Civil Court having jurisdiction over the institution relating to the constitution of any educational agency or as to whether any person or body of persons is an educational agency in relation to any Private School or as to the constitution of a School Committee or as to the appointment of Secretary of the School Committee. In the instant case, the dispute relates to constitution of educational agency in respect of which the suit has been filed. It is no doubt that the context in which the expression 'may' in Sub-Section (2) of S.53-A of the Act, it is coupled with duty and it has to be exercised when there is a dispute relating to the matters touching the very administration of a Private School, which dispute, if allowed to continue would seriously affect the very teaching in the School and thereby the interest of the students will suffer and more so, when there is no likelihood of the Civil Court deciding the suit early or making an interim arrangement for running the Private School pending the suit, it becomes obligatory for the State Government to nominate an officer to discharge the functions of the educational agency, the School Committee and the Secretary as the case may be. It is to ensure that during the interregnum, viz., pending decision in the suit or making an arrangement by the Civil Court for running the School, the Legislature has thought it fit to empower the State Government to nominate an Officer to discharge the function of an educational agency, the School Committee or the Secretary as the case may be in relation to the Private School concerned pending decision of the Civil Court, when a dispute is referred to it or pending making an interim arrangement by the Civil Court for the running of the Private School. Of course, it may depend upon the facts and circumstances of each case whether the State Government should immediately exercise the power or to wait the decision of the Civil or the interim arrangement to be made by the Civil Court for running the School. If there is going to be an undue delay, it would cause damage to the educational institution affecting the teaching and thereby the interests of the students will be affected, the State Government should act and exercise the power and pass an order nominating an officer to discharge the functions of the educational agency. Of course nomination of such Officer would come to an end once the suit is decided or an interim arrangement is made by the Civil Court for running the School. In the instant case, as there is already a suit filed and an application for interim arrangement is also filed by the plaintiff therein, and as any order passed by the State Government nominating an officer to discharge the functions of the educational agency would be operative only pending the decision of the Civil Court on the dispute referred to it on making of an interim arrangement by the Civil Court for running the School and as the application filed in this regard in the suit can be directed to be decided within a short period, we consider it appropriate to direct the Civil Court to take up the application on file for making an interim arrangement by the Civil Court for running the Private School in question and decide the same within a month, instead of directing the Government to immediately take up the matter and nominate an officer to discharge the functions of the educational agency, as that order has to cease to operate, if ultimately the Civil Court were to make an interim arrangement for running the School".
In that paragraph, the Division Bench has said that Sub-section (1) enables 'a person interested in the educational institution to refer a dispute to a Civil Court. If I go by the said sentence alone, the views expressed may not be correct. But, as I said already, is it competent to file the suit under Section 53-A of the Act was not decided therein, and the correctness of the order of the learned Judge alone was in issue, and it was decided."
44. Learned counsel for the respondents on the other hand contended that the dispute raised by the petitioner does not fall under Section 53-A of the Act, as the petitioner is not disputing the constitution of educational agency, but is disputing the constitution of the Trust. The subject matter of the dispute to the constitution of the Trust falls within the jurisdiction of Civil Court, the petitioner, therefore, can safely go to the Civil Court, especially when the only dispute raised is about non inclusion of the family member of late Thiru W.T. Masilamani Mudaliar, though his family members are already included in the Trust.
45. It is further contention of the learned counsel for the respondents that this Court in W.P.No.13305 of 2011 had issued a positive direction to consider the case of petitioner, therefore, the order passed by respondents is in consonance with the direction issued by this Court, which does not call for any interference by this Court.
46. On consideration, I find that this writ petition deserves to succeed. In the counter affidavit filed by respondent no.4, it is not disputed that the dispute raised by petitioner is to be decided by the Trust or by the order of competent Civil Court under Section 53-A of the Act. In view of the clear admission by respondent no.4, it was not open to the respondents to give recognition to the educational agency without referring the matter under Section 53-A of the Act or recording a finding that the objection raised is not covered under Section 53-A of the Act.
47. The paragraph no.9 of the counter affidavit filed by respondent no.4 reads as under:
"9. I submit that the question of inclusion of Tmt.K.Renuka as one of the trustees of Ambalavanar Arapporuppu Ayam is to be decided by the Ambalavanar Arapporuppu Ayam on its own or by the order of the competent civil court under Section 53(A) of the Tamil Nadu Recognised Private Schools Act 1973. This is no way to include the petitioner in the trust functioning in the Ambalavanar Arapporuppu Ayam Aided School inspite any trustee is removed on of their death."
48. The order passed by respondent no.4 is also outcome of misreading of the judgment of this Court in W.P.No.13305 of 2011, as no directions were issued to grant approval. The writ petition filed for issuance of Mandamus, was disposed of by this Court without deciding the question on merit, by directing the respondent to take decision on the appeal filed by the petitioner.
49. The respondents have tried to distinguish between constitution of the Trust and School Committee, to contend that the dispute regarding the Trust falls within the jurisdiction of Civil Court. Whereas constitution of School Committee was different. This contention on the face of it is perverse, as it is the Trust, which constitutes a committee and the dispute regarding constitution of educational agency was referred, therefore, in view of the law laid down by this Court, the word 'may' under Section 53-A is to be read as 'shall', therefore, it was incumbent upon the respondents to have referred the matter under Section 53-A of the Act, instead of granting approval to the educational agency or in the alternative record a positive finding that the dispute did not fall under Section 53-A of the Act, so as to enable the parties to work out their remedies in accordance with law.
50. The impugned order, being contrary to statutory provisions of law and outcome of misreading of directions issued by this Court in W.P.No.13305 of 2011, cannot be sustained in law.
51. Consequently, this writ petition is allowed. The impugned order of approval granted to the educational agency / school committee, is quashed and the case is remitted back to the District Educational Officer, Kanchipuram to reconsider the matter, after taking into consideration objections filed by petitioner. The respondent no.4 is further directed to give personal hearing to the petitioner as well as respondent before passing final order.
52. No costs. Connected miscellaneous petitions are closed.
ar To
1. THE GOVERNMENT OF TAMILNADU REP BY ITS SECRETARY, EDUCATION DEPARTMENT, FORT ST.GEORGE, CHENNAI
2. THE DIRECTOR OF SCHOOL EDUCATION, COLLEGE ROAD, CHENNAI 6
3. THE CHIEF EDUCATIONAL OFFICER KANCHIPURAM
4. THE DISTRICT EDUCATIONAL OFFICER, KANCHIPURAM