Madras High Court
The Government Of Tamil Nadu vs Montfort Anglo Indian Higher Secondary on 14 November, 2017
Author: C.T.Selvam
Bench: C.T.Selvam, M.V.Muralidaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 22.12.2017 DELIVERED ON : 04.01.2018 CORAM: THE HONOURABLE MR.JUSTICE C.T.SELVAM AND THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN Review Application Nos.707 and 710 of 2017 Review Application No.707 of 2017 1.The Government of Tamil Nadu represented by its Principal Secretary, Department of School Education, Fort St.George, Chennai 600 009. 2.The Director of School Education, DPI Compound, College Road, Nungambakkam, Chennai 600 006. 3.The Inspector of Anglo Indian Schools, DPI Compound, College Road, Nungambakkam, Chennai 600 006. 4.The Chief Educational Officer, Salem. 5.The District Educational Officer, Salem. .. Review Applicants/Respondents Vs Montfort Anglo Indian Higher Secondary School, Yercard, Salem District 636 601. .. Respondent/Writ Petitioner Review Application filed under Order 47 Rule 1 r/w 114 of Civil Procedure Code against the order of this Court passed in W.P.No.27825 of 2017 and W.M.P.No.29819 of 2017 dated 14.11.2017. Review Application No.710 of 2017 1.The Secretary to Government, School Education Department, Fort St.George, Chennai 600 009. 2.The Director of School Education, DPI Compound, College Road, Chennai 600 006. 3.The Director of Government Examinations, DPI Campus, College Road, Chennai 600 006. 4.The District Educational Officer, Chennai North. 5.The Inspector of Matriculation Schools, DPI Campus, College Road, Chennai 600 006. .. Review Applicants Vs 1.Maheswari represented by her mother and Guardian, G.Rakhee 2.Badankanwar Chainmal Surana Jain Matriculation Higher Secondary School, represented by its Principal, No.28/14, Ramanuja Iyer Street, Old Washermenpet, Chennai 600 021. .. Respondents Review Application filed under Order 47 Rule 1 r/w 114 of Civil Procedure Code against the order of this Court passed in W.P.No.27822 of 2017 and W.M.P.No.29816 of 2017 dated 17.11.2017. For Petitioners : Mr.S.Ayyadurai, Additional Advocate General assisted by Mr.S.Parthasarathy, Government Advocate For Respondents : Mr.S.Prabakaran, senior counsel for Mr.K.R.Ayyappamani [Rev.A.No.707/17] Mrs.Dakshayini Reddy [Rev.A.No.710/17] ***** C O M M O N O R D E R
[Order of the Court was made by C.T.SELVAM, J.] Review Application No.707 of 2017 arises against the order of this Court in W.P.No.27825 of 2017 dated 14.11.2017. Therein, this Court, following the order in W.P.No.28032 of 2016 etc. batch dated 27.02.2017 directed respondents/review applicants to grant exemption u/s.5 of the Tamil Nadu Tamil Learning Act, 2006. Reliance was placed particularly on the following:
5. In the year 2006, the State of Tamil Nadu has passed an Act, viz., The Tamil Nadu Compulsory Tamil Learning Act, 2006 (hereinafter referred to as the Act), whereby learning Tamil as Part-I language was made compulsory. Section 3 of the Act states that Tamil shall be taught as a subject in Standards I to IX in all schools, in a phased manner, commencing from the academic year 2006-2007 for Standard I, from the academic year 2007-2008 for Standards I and II and shall be extended upto X standard in a like manner. Section 5 of the Act states that the Government may, subject to such conditions as they deem fit, by general or special order, exempt any class or category of student or students from all or any of the provisions of the Act, either in part or in whole.
8. In order to ease the anxiety of the students, especially in the case of students studying languages other than Tamil, as the medium of instruction, we are of the considered opinion that necessary interim orders will have to be passed in the present cases. Accordingly, for the time being, we exempt the candiates who had sought exemption, from taking the Tamil examination for the year 2016-2017. We are passing this order to prevent the necessity of the concerned students approaching this Court at the last stage on the verge of writing the examination. Further, the applications made by the concerned students, which are pending consideration, shall be considered by the respondent Government, and necessary orders be passed in the light of Section 5 of the act, within a period of two days from today.
2. Review Application No.710 of 2017 arises against order of this Court in W.P.No.27822 of 2017 and W.M.P.No.29816 of 2017 dated 17.11.2017 passed by placing reliance on the decision of this Court in W.P.No.8099 of 2016 dated 09.03.2016. In passing orders in favour of applicant in W.P.No.8099 of 2016, this Court had taken into consideration the position that the candidate had shifted from Andhra Pradesh to Tamil Nadu only in the 9th Standard and that too on account of demise of her father and directed authorities to afford exemption from taking the Tamil examination. In W.P.No.27822 of 2017, this Court was dealing with a student who had been pursuing her studies in a School at Vijayawada, Andhra Pradesh, in Hindi. As her father had died she and her mother shifted to Chennai and petitioner was admitted in the Badankanwar Chainmal Surana Jain Matriculation Higher Secondary School in the 8th standard. Though she had joined in the 8th standard, this Court found applicable the view taken in W.P.No.8099 of 2016, felt it necessary to take a compassionate view in the matter as the very shifting of the mother and petitioner daughter to Chennai had been occasioned owing to the untimely death of the father and thought it fit to direct first respondent/first review applicant to grant exemption to write examination in Tamil as Part-I language. This Court ordered as follows:
The Writ Petition shall stand allowed. Though petitioner seeks permission to write the Part-I language paper in the ensuing 10th standard Board Examination in Hindi, the relief shall stand restricted to one directing respondents to exempt petitioner from taking the Tamil examination for the 10th Standard Board Examination to be held for the year 2017-18. No costs. Connected miscellaneous petition is closed.
3. Heard learned Additional Advocate General in support of the review applications at the stage of admission.
4. Learned Additional Advocate General submitted that the validity of the Tamil Nadu Tamil Learning Act, 2006, had been upheld and writ petitioners are well aware that learning of Tamil was compulsory. He stated that the scheme of the Tamil Nadu Tamil Learning Act, 2006, provided for conduct of examination under four parts. Part-I Tamil, Part II English and Part-III selective subjects such as science group, commerce group etc. While Part-I and Part-II were compulsory, in Part-III the student had an option to select anyone of the afforded groups or subjects. Part-IV totally was optional and a student could choose to take an examination therein in his mother tongue and the marks obtained therein would not be taken into account. He submitted that it was for the particular student to seek exemption but in several instances it was the institutions/schools which had sought the same on behalf of their students. He contended that this was done with an oblique motive of obtaining exemption from writing Tamil towards enabling students and institutions to concentrate on other subjects and obtain higher marks therein. He submitted that reading directions issued by this Court in various writ petitions as a guideline, Government has passed G.O.(Ms).No.232 dated 08.11.2017 wherein a policy decision informed as eligible for exemption those (i) students whose parents are in Government Service or in employment of Public Sector Undertakings/ Institutions / Companies / Corporations / Private Employment/ Business or any other form of employment in other States and have been transferred / relocated to Tamil Nadu during the course of the academic year and who have not studied Tamil as a language i nteh school in the State from which they have migrated are eligible to apply and (ii) Further, students whose parents are in Government Service or in employment of Public Sector Undertakings / Institutions / Companies / Corporations / Private Employment / Business or any other form of employment in other States and have been transferred / relocated to Tamil Nadu during the course of the academic year 2015-16 in Standard IX and who have not studied Tamil as a language in the the school in that State, even though such students would have to study Tamil as per the Act they can apply for exemption, if they are not confident to take up the Board Examination in Tamil in March, 2017. Under such Order, Government had proceeded to grant exemption in exercise of powers conferred by Section 5 of the the Tamil Nadu Tamil Learning Act, 2006 (Tamil Nadu Act 13 of 2006). Learned Additional Advocate General contended that under Letter (Ms) No.2, School Education Department, dated 02.01.2017, further guidelines for granting of exemption to students from writing Tamil in the 10th standard Board Examination were issued. The First Bench of this Court had considered the same in W.P.No.43280 of 2016 and on 03.01.2017 ordered as follows:
A fresh government order has been issued dated 2.1.2017. To remove the possibility of any doubt over the interpretation of that government order, the learned Advocate General is in agreement with the understanding of this Court of the Government Order that effectively unless a person has had the benefit of studying Tamil for a period of three academic years before taking the examination, he would not be tested in the Tenth Class in that subject and will be provided exemption.
2. The result of the aforesaid insofar as the present writ petition is concerned is that students at Serial Nos.(1) and (3) on Page (38) of the typed set would be entitled to the exemption, but the student at Serial No.(2), who would have studied Tamil for a period of three academic years before taking the examination, would not be entitled to the exemption.
We, thus, accordingly dispose of the petition leaving the larger question qua the second student open in view of the petitioners in other petitions seeking to agitate the matter even in respect of the students who have studied Tamil for a period of three academic years. No costs. Consequently, W.M.P.No.37121 of 2016 is closed.
5. Learned Additional Advocate General submitted that petitioner school in W.P.No.27825 of 2017 had sought exemption for 33 students. Only six were found eligible. 27 others were found ineligible on the score that they had been studying in the petitioner school from 8th standard or below. Petitioner school had applied in June/July 2017 and the order of rejection had been passed on 25.09.2017. Writ Petition had been filed on 30.10.2017 seeking quash of the order of the fifth respondent dated 25.09.2017. He submitted that writ petitioners, even while informing their willingness to accept reasonable restrictions, alleged violation of constitutional rights including fundamental rights despite the validity of the Tamil Nadu Learning Act having been upheld. It was his submission that in the order above reproduced this Court had taken the view that only those who had not had the benefit of studying Tamil for three academic years were eligible to seek exemption. He submitted that the order in W.P.No.28032 of 2016 batch relied upon by learned counsel for writ petitioners had been passed in emergent circumstances on 27.02.2017 taking into consideration the position that petitioners therein were to take up the 10th standard examination in March 2017. He contended that if attention had been drawn to the order dated 03.01.2017, this Court would not have taken the view stated in passing orders in W.P.Nos.27825 and 27822 of 2017. He also referred to the order in W.M.P.No.24178 and 24179 of 2016 in W.P.No.28032 of 2016 batch of 03.01.2017 which batch of petitions have been disposed of by informing that stated in paragraph No.1 herein above reproduced. He submitted that petitioner in W.P.No.27825 of 2017 also was a party to the proceedings in W.M.P.No.24178 and 24179 of 2016 in W.P.No.28032 of 2016 batch and was upon a duty to inform this Court of the order dated 03.01.2017. Having failed to do so, petitioner had produced before this Court the order in W.P.No.28032 of 2016 batch dated 27.02.2017 and obtained favourable orders at the hands of this Court. He contended that orders under challenge are to be reviewed both on grounds of non-disclosure of orders of this Court dated 03.01.2017 and on the ground that the order in W.P.No.28032 of 2016 batch dated 27.02.2017 had no application vis-a-vis the present writ petitions, since the same had been passed in emergent circumstances. He further contended that the W.P.No.27825 of 2017 challenged the order of fifth respondent dated 25.09.2017 whereas petitioner ought to have challenged the Government letter dated 02.01.2017.
6. We are unable to subscribe to the view of learned Additional Advocate General that School/institutions are driven by oblique motives. We would start with the presumption that all concerned, be it Government, Schools, Courts as also counsel representing petitioners as also Government, have uppermost in their mind, the welfare of students. As goes the saying, If you look for Demons in the Dark, you will find them. Of course, the order of the First Bench of this Court in W.M.P.No.24178 and 24179 of 2016 in W.P.No.28032 of 2016 batch dated 03.01.2017 could have been brought to notice. But we do not see any sinister motive in the writ petitioner not having done so. From the very order of even date in W.P.No.43280 of 2016, it is clear that this Court had left the question of eligibility to exemption of others who have not put in three years of studies in Tamil Nadu, open. The decision of First Bench of this Court in K.R.Ramaswamy @ Traffic Ramaswamy and others vs. State and others [2007 (5) CTC 113] whereunder the Tamil Nadu Tamil Learning Act, 2006 was upheld in paragraph No.34 states thus:
34. While judging the constitutionality of the provision, the Court must also keep in mind the scheme of the Act. It is not as if the Tamil language is introduced as a compulsory subject in Part-I of Section 3 of the Act to students of all standards simultaneously at one stretch. The scheme contemplates that the Tamil is made compulsory language for the students of Standard I commencing from the academic year 2006-2007. Those students should learn Tamil as compulsory language from the second academic year viz. 2007-2008 and for their next academic year they should learn Tamil as compulsory language from Standard III. Likewise, the students who have been admitted for the academic year 2006-2007 should start learning Tamil as compulsory subject in Part-I and learn the same as a compulsory language till he goes to Standard X. By the above process of introduction of Tamil as compulsory language in Part-I in a phased manner from Standards I to X, a student who is taught Tamil from Standard I is not over-burdened and could learn the Tamil language at ease. (underlining supplied)
7. In the decision in Manuelsons Hotels Private Limited vs. State of Kerala and others [2016 (6) SCC 766], the Apex Court informed thus:
22. However, some of the judgments of this Court have held that a writ of mandamus cannot be issued to the executive to frame rules or regulations which are in the nature of subordinate legislation. (See State of J&K v. A.R. Zakki [1992 Supp (1) SCC 548] paras 10 and 15 and State of U.P. v. Mahindra and Mahindra Ltd. [2011 (13) SCC 77] at p.81.) This is for the reason that a court would then trespass into forbidden territory, as our Constitution recognises a broad division of powers between legislative and judicial activity.
23. However, though the power to grant exemption under a statutory provision may amount to subordinate legislation in a given case, but being in the domain of exercise of discretionary power, is subject to the same tests in administrative law, as is executive or administrative action, as to its validity one of these tests being the well-known Wednesbury principle [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 (CA)] under which a court may strike down an abuse of such discretionary power on grounds that irrelevant circumstances have been taken into account or relevant circumstances have not been taken into account (for example). This is clearly exemplified in Indian Express Newspapers (Bombay)(P) Ltd. v. Union of India [1985 (1) SCC 641].
8. Review applications suffer from a basic misconception. They proceed on the basis that the decision of Government to afford exemption from writing the Tamil examination in 10th standard only to those who have not had the benefit of studying Tamil as a medium of instruction over a period of three years is a policy of Government not admitting of any breach whatsoever. Such reading would amount to suspension/deletion of provision for exemption under Section 5 of the Tamil Nadu Tamil Learning Act, 2006, which reads thus:
5. Exemption : - The Government may, subject to such conditions as they deem fit, by general or special order, exempt any class or category of student or students from all or any of the provisions of this Act either in part or in whole. It may be seen that Section 5 of the Tamil Nadu Tamil Learning Act, 2006, provides for exemption for any class or category of student or students. Legislature does not use words unnecessarily. Legislature has not stopped with saying that exemption will be available to any class or category of students. It has said student or students. It, therefore, follows that even a singular student might fall within a particular class or category, eligible for exemption. Therefore, while exemption may be granted to a class as a whole as done under Government Letter (Ms) No.2, School Education Department, dated 02.01.2017, doing so, would not disentitle others not falling within the particular class identified. There is no reason why grant of exemption to others on other considerations should not be examined or permitted.
Finding no merits, the review applications are dismissed.
[C.T.S., J] [M.V.M., J]
04.01.2018
Index:yes/no
Internet:yes
gm
C.T.SELVAM, J
and
M.V.MURALIDARAN, J
gm
Pre-delivery Order
in
Review Application Nos.707 and 710 of 2017
04.01.2018