Madras High Court
Sowri Raj vs The Director Of School Education on 19 January, 2012
Author: K.Chandru
Bench: K.Chandru
In the High Court of Judicature at Madras
Dated: 19.01.2012
Coram
The Honourable Mr.JUSTICE K.CHANDRU
Writ Petition Nos.15291 to 15295 and 15998 of 2007
& M.P.No.1 of 2007
Sowri Raj
.... Petitioner in W.P.No.15291 of 2007
Martin Kennedy
.... Petitioner in W.P.No.15292 of 2007
Albert Martin
.... Petitioner in W.P.No.15293 of 2007
Dhass
.... Petitioner in W.P.No.15294 of 2007
Sagayaraj
.... Petitioner in W.P.No.15295 of 2007'
Stelle Marie
.... Petitioner in W.P.No.15998 of 2007
Vs.
1. The Director of School Education,
Education Department,
Pondicherry.
2. The Correspondent,
Fathima Higher Secondary School,
Pondicherry.
..... Respondents in the above W.Ps
2. The Joint Director of School Education,
Directorate of School Education,
Pondicherry
.... Respondent in W.P.No.15998 of 2007
Prayer in W.P.Nos.15921 to 15925 of 2007:
PETITIONs filed under Article 226 of The Constitution of India praying for the issuance of Writ of Prohibition prohibiting the second respondent herein from taking any further action, containing charges leveled on the petitioners, issued by the 2nd respondent herein.
Prayer in W.P.No.15998 of 2007:
PETITION filed under Article 226 of The Constitution of India praying for the issuance of Writ of Certiorari calling for the records of the third respondent dated 09.02.2007 and quash the same.
Mr.R.Ramesh For Petitioners in the above W.Ps.
Mr.R.Sreedhar, G.A.(P) For R1 in W.P.Nos.15291 to 15295 of 2007
For R2 in W.P.No.15998 of 2007
Mr.P.Godson Swaminath
for M/s.Issac Mohanlal For R2 in W.P.Nos.15291 to 15295 of 2007
For R3 in W.P.No.15998 of 2007
---------
C O M M O N O R D E R
The petitioners in W.P.Nos.15921 to 15924 of 2007 are working as Primary School Teachers and the petitioner in W.P.No.15295 of 2007 is working as a Lower Division Clerk in the second respondent school Fathima Higher Secondary School, represented by its Correspondent at Puducherry. The petitioner in W.P.No.15988 of 2007 is working as part time sanitary assistant in the above-said school.
2. In all these Writ Petitions, the petitioners have come out with the prayer that the second respondent school cannot take any action through its correspondent and therefore, a writ in the nature of prohibition against the school was sought for from initiating any action including the disciplinary action. In the typed set filed along with the Writ Petitions, the petitioners have enclosed the various charge memorandums given in the name of the Correspondent of the school proposing to take action.
3. Even before the admission of the Writ Petitions, while ordering notice, an order of interim stay was granted in W.P.Nos.15921 to 15925 of 2007 on 25.4.2007 and subsequently, when the matter came up on 23.7.2007, this Court while admitting the Writ Petition and making the grant of stay absolute, observed as follows:
"When the writ petitions came up for admission on 25.04.2007, the learned Judge of this Court, after hearing the learned counsel on either side and considering Rule 52 of the Pondicherry School Educational Rules 1996, whereunder the Disciplinary Committee in respect of every recognised school has got jurisdiction, and the contention of the petitioners that the proceedings have not been conducted by the Disciplinary Committee, which has not jurisdiction, has granted interim stay. Now, the learned counsel for the second respondent has insisted for certain modification of the interim order. However, it appears that the writ petitions have been filed for writ of prohibition and if the interim order is vacated or any other modification is ordered, it may defeat the rights o the parties. Therefore, the modification of the order, as prayed for by the counsel for the second respondent cannot be granted.
2. In view of the same, interim stay granted by this Court on 25.04.2007 is made absolute. However, the learned counsel on either side has expressed certain urgency in this matter. Therefore, the Government Pleader (Pondicherry), is directed to file counter within a period of four weeks."
4. Subsequently, the second respondent school has filed counter affidavit signed by the Correspondent of the school one Rev.Fr.R.Ratchagar dated nil, June 2007.
5. W.P.No.15998 of 2007 was admitted on 27.4.2007. Pending the Writ Petition, no interim order was granted and it was merely directed to be posted along with the other Writ Petitions.
6. The contentions raised in all these Writ Petitions are identical and therefore they were grouped together and a common order is passed.
7. The petitioners' contention was that the school is an aided minority school, but, since it is receiving aid from the Government of Union Territory of Puducherry, it is also a "State", within the meaning of Article 12 of the Constitution of India. It is also further submitted that the school is governed by the provisions of the Pondicherry School Education Act, 1987, (Act 9 of 1987) and the Rules framed thereunder, namely, the Puducherry School Education Rules, 1996. According to the petitioners that under Rule 51 penalties and disciplinary authorities are prescribed and under Rule 52, disciplinary authority in respect of the employees is prescribed. Since reference was made to the school, Rule 52 is extracted below:
"Rule 52.Disciplinary authority in respect of employees (1) The disciplinary committee in respect of every recognised school shall consist of -
(i) the chairman of the managing committee of the school;
(ii) the manager of the school;
(iii) the Head of School, except where the disciplinary proceeding is against him and where the disciplinary proceeding is against the Head of School, the Head of any other school, nominated by the Director;
(iv) a teacher who is a member of the managing committee of the school, nominated by the Chairman of such managing committee."
Therefore, the name of the Correspondent is not set out in the said Rule and therefore, the disciplinary action cannot be initiated by an incompetent authority. It is in that premise, the Writ Petitions came to be filed.
8. In the counter affidavit filed in the first five Writ Petitions by the Correspondent, it was stated that the schools were established by the Arch Diocese of Puducherry and it is a minority institution entitled to have protection under Article 30(1) of the Constitution of India. Already a Division Bench of this Court in W.P.No.593 of 1975 declared the school run under the Arch-Diocese of Puducherry and Cuddalore as having minority right to administer the school. It is further stated that the term 'manager is defined under Section 2(l) of the Act, which reads as follows:
"2(l) "manager", in relation to a school, means the person, by whatever name called, who is entrusted, either on the date on which this Act comes into force or, as the case may be, under a scheme of management made under section 11, with the management of the affairs of that school"
The term 'minority schools' is defined under Section 2(m) of the Act, which reads as follows:
2 (m) "minority school" means a private school of its choice established and administered, or administered, by any such minority whether based on religion or language as has the right to do so under clause (1) of article 30 of the Constitution"
The term 'Educational Agency' is defined under Section 2(f)(a) of the Act, which reads as follows:
"2(f) "educational agency" in relation to _
(a) any minority school, means any person who, or body of persons which has established and is administering or proposes to establish and administer such minority school"
9. It is further submitted that Rule 22 provides for a Management Committee. It is claimed by the second respondent that in view of Section 11 of the Education Act, Rule 22 providing for a Management Committee and Rule 52 providing for a disciplinary authority will not apply to a minority educational institution. The schools which are run by the Roman Catholic Officer of Puducherry and Cuddalore are having Arch-Diocesan Board of Education constituted with effect from 08.12.1992. The Scheme of Management brought out by the Board has established an office of the Correspondent of school, who normally be a Parish Priest in respect of primary and middle schools and for the other schools, the Correspondent is appointed by the General Manager, who is the Arch Bishop and Ex-Officio Chairman of the Board of Education. The Correspondents are empowered for the Board's constitution to impose minor and major penalties on the staff of the schools under his jurisdiction.
10. In the present case, it is the Arch Bishop appointed the Correspondent Rev.Fr.John Duraisamy as Parish Priest vide order dated 09.12.2006. Thereafter, with effect from 16.4.2007, Rev.Fr.R.Ratchagar was appointed as the Correspondent of the second respondent school. It is also stated that the Arch-Diocesan Board of Education had framed rules of conduct, discipline and appeal for the Diocesan Institutions outlining the procedure to take disciplinary action and penalties to be imposed. Thereafter, in the counter affidavit, the merits of the applications were also gone into and it is unnecessary to go into the said issue, because in all these Writ Petitions, the want of jurisdiction on the part of the Correspondent has been made as an issue.
11. In the present case, the second respondent has filed the conduct, Disciplinary and Appeal Rules for the Diocesan Institutions framed by the Arch-Diocesan Board of Education in the typed set and the constitution of Arch-Diocesan Board of Education framed by the Diocese is also filed in the typed set, which shows that under paragraph Nos.17.00, 17.01, 18.01, 18.02 and 18.04, the role of Correspondent is set out, which read as follows:
"17.00 Parish Priests by virtue of their appointment as parish priest by the Archbishop hold responsibility for proper functioning of all the Primary and Middle Schools and act as local correspondent of the said schools for which the DOS Manager shall issue statutory nomination letters.
17.01 As local correspondents, the Parish Priests shall hold this office only under the authority of the Archbishop and they cease to the correspondents of the schools, once they are transferred from the Headmasters and Correspondents/Principals 18.01 They shall exercise their authority subject to the norms laid down in the Education Board.
18.01 They shall be appointing authorities in the schools/colleges under their jurisdiction.
18.04 They shall follow the directives of the Board regarding admission of students, appointment and promotion of teachers, collection of fees and initiation of disciplinary action against erring teachers."
12. Therefore, it is clear that when the term 'Manager' is defined under Section 2(l) of the Act, extracted above, it does not mean that a person whose designation only be described as Manager. The definition itself states that it could be called by whatever name in relation to an Educational Agency of a minority school or it relates to a minority, which establishes institution and there is no dispute that the second respondent is a minority school, as the petitioners themselves in their affidavit, in paragraph 2, have accepted the minority status, the only question be decided in these Writ Petitions is whether the disciplinary action in the name of the Correspondent is without jurisdiction and contrary to the provisions of the Puducherry Education Act.
13. The question raised in these Writ Petitions is no longer res integra. Already this Court in the case of C.N.Lekha, Headmistress, St.Thomas Higher Secondary School V. The State of Tamil Nadu and others reported in (1998) 1 MLJ 248 considered the similar question in relation to the Tamil Nadu recognised Private Schools (Regulation) Act, 1973 and the Rules framed thereunder. In paragraph Nos.8,9 and 10, it was observed as follows:
"8.In the abovesaid decision, there is no discussion about Sec.15 of the Act which relates to the constitution of the School Committee, which is admittedly held as inapplicable by a Division Bench of this Court by an earlier order dated 24.9.1976.
9. As a result, the contention of the learned counsel for the petitioner that the Correspondent of the School has no authority to issue the impugned letter relating to the enquiry proposed therein as School Committee alone is competent to take disciplinary action against the petitioner is not tenable. Therefore, I do not want to interfere with the letter dated 27.1.1997 of the fourth respondent.
10. However, in the interest of justice I direct the fourth respondent/Correspondent of the School, to complete the enquiry initiated against the petitioner within four weeks from the date of receipt of a copy of this order and to pass final orders on merits after giving sufficient and reasonable opportunity to the petitioner."
14. Similar question was also considered by this Court in the case of T.Nagarajan V. Director of School Education and others reported in (2007) 3 MLJ 344. In paragraph 5, it was observed as follows:
"5.The point raised by the learned counsel for the petitioner has no substance, as the 3rd respondent-School is a minority institution and has the full constitutional protection in terms of Article 30(1) of the Constitution of India. Two Division Benches of this Court have gone into the question as to how far the various provisions of the Tamil Nadu Recognized Private School (Regulation) Act are applicable to the minority institutions and has held that the provisions relating to the School Committee has no application, as it will offend the rights of the administration conferred on the minority institutions. Therefore, ever since the enactment of the Act, in no minority institutions the provisions relating to the School Committee has been enforced. Even otherwise, similar view has been taken by the Apex Court in several judgments dealing with the Educational Laws, of various States. Therefore, the point governing body of the School cannot take action and only the School Committee can take action fails to the ground. The 3rd respondent-School is a minority institution, and Section 15 of the Act will have no application to the said institution."
In the light of the above, the contentions raised by the petitioners cannot be countenanced.
15. Further, the Supreme Court vide judgment in the case of Secy. Malankara Syrian Catholic College V. T.Jose and others reported in (2007) 1 SCC 386 while dealing with the scope of Article 30(1) of the Constitution of India and the right of administration, referred to the judgment in the case of T.M.A. Pai Foundation V. State of Karnataka reported in (2002) 8 SCC 481 and in paragraph Nos.18 and 19, it was observed as follows:
18. The observations of the eleven-Judge Bench in T.M.A. Pai in respect of the extent to which the right of administration of aided minority educational institutions could be regulated, are extracted below: (SCC pp. 579-80, paras 141 & 144) 141. the State cannot, when it chooses to grant aid to educational institutions, deny aid to a religious or linguistic minority institution only on the ground that the management of that institution is with the minority. We would, however, like to clarify that if an abject surrender of the right to management is made a condition of aid, the denial of aid would be violative of Article 30(2). However, conditions of aid that do not involve a surrender of the substantial right of management would not be inconsistent with constitutional guarantees, even if they indirectly impinge upon some facet of administration.
* * *
144. It cannot be argued that no conditions can be imposed while giving aid to a minority institution. Whether it is an institution run by the majority or the minority, all conditions that have relevance to the proper utilisation of the grant-in-aid by an educational institution can be imposed. The conditions for grant or non-grant of aid to educational institutions have to be uniformly applied, whether it is a majority-run institution or a minority-run institution. As in the case of a majority-run institution, the moment a minority institution obtains a grant of aid, Article 28 of the Constitution comes into play. When an educational institution is maintained out of State funds, no religious instruction can be provided therein. (emphasis supplied) Among the questions formulated and answered by the majority while summarising conclusions, Question 5(c) and the answer thereto have a bearing on the issue on hand. Question 5(c) is extracted below: (SCC p. 589, para 161) 5. (c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions and regulation of fees, etc. would interfere with the right of administration of minorities? The first part of the answer to Question 5(c) related to unaided minority institutions. With reference to statutory provisions regulating the facets of administration, this Court expressed the view that in case of an unaided minority educational institution, the regulatory measure of control should be minimal; and in the matter of day-to-day management, like the appointment of staff (both teaching and non-teaching) and administrative control over them, the management should have the freedom and there should not be any external controlling agency. But such institutions would have to comply with the conditions of recognition and conditions of affiliation to a university or board; and a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself. This Court also held that fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee. The second part of the answer to Question 5(c) applicable to aided minority institutions, is extracted below: (SCC pp. 589-90, para 161) For redressing the grievances of employees of aided and unaided institutions who are subjected to punishment or termination from service, a mechanism will have to be evolved, and in our opinion, appropriate tribunals could be constituted, and till then, such tribunals could be presided over by a judicial officer of the rank of District Judge.
The State or other controlling authorities, however, can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a principal of any educational institution.
Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State, without interfering with the overall administrative control of the management over the staff. (emphasis supplied) The position enunciated in T.M.A. Pai1 is reiterated in P.A. Inamdar v. State of Maharashtra.
19. The general principles relating to establishment and administration of educational institution by minorities may be summarised thus:
(i) The right of minorities to establish and administer educational institutions of their choice comprises the following rights:
(a) to choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution;
(b) to appoint teaching staff (teachers/lecturers and Headmasters/Principals) as also non-teaching staff, and to take action if there is dereliction of duty on the part of any of its employees;
(c) to admit eligible students of their choice and to set up a reasonable fee structure;
(d) to use its properties and assets for the benefit of the institution.
(ii) The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis-`-vis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation, taxation, etc. applicable to all, will equally apply to minority institutions also.
(iii) The right to establish and administer educational institutions is not absolute. Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under Article 30(1).
(iv) Subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/lecturers by adopting any rational procedure of selection.
(v) Extension of aid by the State does not alter the nature and character of the minority educational institution. Conditions can be imposed by the State to ensure proper utilisation of the aid, without however diluting or abridging the right under Article 30(1)."
16. In view of the above, the above Writ Petitions stand dismissed. Since the matters have been pending for the last five years, in the interest of justice, the second respondent in W.P.Nos.15921 to 15925 and third respondent in W.P.No.15988 of 2007, viz., The Correspondent, Fathima Higher Secondary School, Pondicherry, if he desires, to proceed with the enquiry after giving appropriate opportunity and conduct enquiry before taking further course of action. The petitioners will be allowed to give explanation and thereafter, the proceedings will be taken. No costs. Consequently, M.P.No.1 of 2007 is closed.
Index:Yes/No
Internet:Yes/No 19.01.2012
sl
To
1. The Director of School Education,
Education Department,
Pondicherry.
2. The Joint Director of School Education,
Directorate of School Education,
Pondicherry
K.CHANDRU,J.
Sl
W.P.Nos.15291 to 15295
and 15998 of 2007
& M.P.No.1 of 2007
19.01.2012