Madras High Court
C.B.M. College By Its Secretary And Anr. vs The Federation Of College Employees' ... on 1 October, 1997
Equivalent citations: (1998)1MLJ373
JUDGMENT S.M. Abdul Wahab, J.
1. The defendants 1 and 2 are the appellants in the second appeal. The suit was filed for declaration and junction. The plaintiff is the Federation of College Employees' Association represented by its Secretary M. Natarajan, the defendants are C.B.M. College represented by its Secretary and its Principal. The declaration sought for is that the admission for the year 1994-95 made by the second defendant Principal without the aid of the selection committee is null and void. Consequently, the second defendant should be prevented from admitting students to various courses without the aid of the selection committee. The Subordinate Judge, Coimbatore, granted the reliefs as prayed for. On appeal to the District Judge, Coimbatore, the appeal was partly allowed i.e. the decree of declaration that the admission for the year 1994-95 was null and void was set aside. However, the injunction not to admit the students without the aid of the selection committee by the principal was not disturbed. Hence the defendants, the college and the Principal have preferred the second appeal.
2. The substance of the contention of the plaintiffs are that the Government of Tamil Nadu issued G.O. No. 533 Education dated 16.5.1990 and G.O. NO. 519 Education dated 24.4.1991. Based on the same, the Director of Collegiate Education in his proceedings in R.C. No. 20262/Ha/8/91 dated 6.5.1991 fixing the guidelines for admission of students in Arts and Science Colleges. As per the said guidelines all the colleges in Tamil Nadu should constitute a selection committee comprising principal and two senior most members of the faculty for the selection of candidates for admission by the principal. The senior most Scheduled Caste/Scheduled tribe staff must also be co-opted for the selection of degree courses and post-graduate course. The Director of Collegiate Education issued his proceedings in R.C. No. 24863/P493 dated 30.4.1993 containing guidelines for admission to aided Colleges. Again on 12.5.1994 also, the Director of Collegiate Education issued proceedings No. Rc. 3680/p4/94 But in the first defendant college, the admission were done only by the second defendant during the academic year 1994-95. Hence the suit was filed.
3. The defence was that the plaintiff has no locus standi to file suit. The contravention of the guide-lines can be dealt with by the Education Department. The power of admission vests only with the principal. The guidelines issued are contrary to the rules framed under the Private College Regulation Act. The suit has been filed only to harass and humiliate the first defendant. Since the admissions were made in the interests of students before the issue of injunction the consequent injunction is infructuous. There is no cause of action for the suit as the guidelines were not circulated to the private colleges for the admissions during 1994-95.
4. The trial court framed six issues including one additional issue. The main issue No. 2 relates to applicability of the guideline (1)(8) to the Private Colleges. There was also issue No. 1 with reference to the locus standi of the plaintiff. The trial court considered issue Nos. 1 and 2 together and found that the guideline 1(8) is applicable to the private colleges also. Regarding the locus standi, the trial court found that since the teachers of the defendants college were eligible to become members in the selection committee, the federation of the teachers has locus standi to maintain the suit.
5. The defendants preferred an appeal before the District Judge, Coimbatore. The lower appellate court also framed five points for decision. The points 1 and 2 related to declaration while point No. 3 related to locus standi. On the aforesaid points, the lower appellate court also found that though the plaintiff are not entitled for declaration with reference to the ad-mission made during 1994-95 they are entitled for injunction with reference to the future admissions without constitution of the selection Committee. On the question of locus standi also the lower appellate court found that since admittedly there is a college council which consists of the teachers the plaintiff has locus standi and as the council is also member of the plaintiff association.
6. Aggrieved by the judgment and decree of the courts below, the defendants have preferred the second appeal in this Court. the substantial question of law that has been framed for consideration in the appeal are as follows:
(a) Whether the courts below are right in enter-taining the suit?
(b) Whether the courts below had erred in attempting to interfere with the right of internal administration of the college which is barred under Rule 9(5) Of T.N.P.C. Rules as per judgment in W.A. No. 693 of 1983?
The learned senior counsel Mr. Somayaji raised the following contentions in the second appeal. The Government orders pursuant to which the guide has been issued by the Director of Collegiate Education do not confer right on the teaching staff to compel the de-fendants to constitute selection committee. The Government orders are particularly against Rule 5 of the Tamil Nadu Private Colleges (Regulation) Act, 1976. He also contended that the plaintiff is not entitled to maintain the suit.
7. The learned Counsel for the respondent Mr. K. Chandru on the other hand contended that Fed-eration is entitled to maintain the suit. The question that as the plaintiff is not a legal entity, the suit is not maintainable by it, has not been raised in the second appeal. Consequently, he contended that the Government is empowered under Section 11 of the Tamil Nadu Private Colleges Regulation Act, 1976 to direct constitution of the selection committee. Since the Government is giving grants, it has got powers to issue guidelines for the administration of the colleges es-pecially with reference to the maintaining educational standard and selecting the students for admission in private colleges. Under Section 10(2) of the Private Colleges (Regulation) Act, 1976, the Government has power to withhold the grant when the direction of the Government is not followed. Rule 7 prescribes the provision for grant and granting of aid, maintenance of academic standard and holding with the grant when there are violations. The guidelines issued as per the above Rules are valid and binding on the private colleges including the appellants.
8. The main point urged by the learned Counsel for the appellant is that the Government orders and the guidelines issued by the Director of Collegiate Edu-cation in so far as it relates to admission of students in private college are contrary to Rule (9(5) of the Tamil Nadu Private Colleges (Regulation) Rules, 1976. The learned Counsel contended that under Section 53, of the Tamil Nadu Private Colleges (Regulation) Act, 1976, the Government is empowered to make the Rules, Section 53(2)(f) give the specific power. Rule 9(5) of the Tamil Nadu Private Colleges (Regulation) Rules, 1976 is as follows:
9. Secretary of the committee-
1)...
(2)...
(3)...
(4)...
(5) The Secretary shall not interfere in the internal administration of the college such as admission, examination, promotion of student and other academic matters as also the administration of special fee funds, which shall be made the exclusive responsibility of the principal.
(b)....
As per the above Rule 9(5) the principal alone has been vested with the academic matters of the institution. It is the exclusive right of the principal to make admissions. Even the Secretary of the college can not interfere in such academic matters like admission, After having vested the principal with the right of admission, it is not open to the Government to issue administrative orders under the guise of guideline to take away the said right from the Principal of Private Colleges. The learned senior counsel for the appellant submitted the following authorities in support of his contentions:
1. Unni Krishnan v. State of Andhra Pradesh .
Unreported judgments: 1. The Association of Managers of private Colleges represented by Secretary P. Haridas v. The Government of Tamil Nadu represented by Secretary, Education DepOrtment, Madras in W.A. No. 692 of 1983; 2. W. Ps. 75 93 and 7594 of 1997 etc.
9. Unni Krishnan v. State of Andhra Pradesh . The scheme framed in the said judgment is not meant for arts and sciences colleges like the appellants. They are meant for several professional colleges. Therefore, the guidelines contained in the scheme are not applicable to the appellants.
10. In a batch of cases in W.P. Nos. 7593 and 7594 etc of 1997 the Division Bench of this Court has determined the direction the procedure for admission of 50% of the seats in all the unaided colleges. The said procedure was issued by the Government in G.O. Ms. No. 245 Higher Education (El) Department, dated 7.5.1997 for the selection of 50% students. As per the said Government order the Government constituted a committee with the Regional Joint Director of Collegiate Education, Principal of the unaided college, and one principal or prescribed person belonging to Scheduled Caste/Scheduled Tribe to be nominated by the Director of Collegiate Education as a member. After considering the various arguments advanced in the said case, the Division Bench of this Court has held as follows:
80. The proceedings No. Na. Ka. 76222/R4/96, dated 9.4.1997 issued pursuant to G.O. Ms. No. 363, dated 5.6.1996 are applicable to Government/Aided/Unaided College of Arts and Science functioning in Tamil Nadu. The impugned Government Order does not supersede or modify G.O. Ms. No. 363, dated 5.6.1996 or the said proceedings, dated 3.4.1997. In paragraph 11 of the counter affidavit it is stated that in G.O. Ms. No. 363, dated 5.6.1996 the Government have issued guidelines and procedure for admission of students to U.G./P.G. courses in the Government. Aided and Unaided Private Colleges in the state. There is conflict between G.O. Ms. No. 363, dated 5.6.1996 and the proceedings No. Na. Ka. 76222/R4/96 R4/96, dated 9.4.1997 on the one hand and the impunged order as to the constitution of selection committee and the procedure to be followed in selection and admission of students.
81. Having regard to what is stated above we have no hesitation to hold that the impugned order offends Article 14 of the Constitution of India, it being arbitrary, discriminatory and for non-application of mind.
82. In W.P. No. 7594 of 1997 the petitioner has challenged the guidelines issued by the Director of Collegiate Education in proceedings No. 76222/R4/96, dated 9.4.1997. During the course of ar-guments it was submitted that those guidelines were issued on the basis of G.O. Ms. No. 363, dated 5.6.1996. G.O. Ms. No. 363 is not challenged in the writ petition. It is stated that the Government order was only for the academic year 1996-97. However, as regards constitution of selection Committee is concerned, even in respect of private aided colleges, the same will be the position as in the case of selection committee in respect of un-aided colleges. In other words the State Government cannot constitute selection committee to make admissions to the extent of 50% the seats based on the rule of reservation in the Aided Colleges. W.P. No. 7504 of 1997 is to be disposed of accordingly. However, we make it clear that this order should not be understood that the private unaided selffinancing colleges are relieved from the obligation of filing up 50% of the seats in their respective colleges strictly following the rule of reservation.
83. In view of the discussions made and reasons stated above, these batch of writ petitions except W.P. No. 7594 of 1997, and 8010 of 1997; are allowed and the impugned G.O. Ms. No. 245, Higher Education (El) Department, dated 7.5.1997 is quashed. W.P. No. 7594 of 1997 is disposed in view of quashing of the impugned G.O. No. costs.
In paragraphs 51 and 52 they have referred to the. earlier Bench decision of this Court in W.A. No. 692 of 1983 dated 31.8.1983. Infact the said decision is considered and relied upon. The said relevant paragraph read as follows:
51. The decision of the Division Bench, dated 31.8.1983 in (The Association of Management of Private Colleges, represented by its Secretary P. Earidas v. The Government of Tamil Nadu), Writ Appeal No. 692 of 1983 supports to the right of admission to the affiliated colleges of the University by the managements, and which power the university wanted to take away by resolution. The Division Bench of this Court referring to various decisions of others courts including Chitraleka v. State of Mysore , held that the University had no power to make admission to affiliated colleges although the University could prescribe necessary eligibility conditions for admission. In that decision it is held that the Syndicate of the University could not interfere with the internal administration of the private college such as admission of students, by taking over the power from them.
52. Having regard to the fact that the field is al-ready occupied relating to admission of students in the private unaided selffinancing colleges, the impugned Government order issued invoking executive power under Article 162 of the Constitution cannot be sustained.
Further, they have extracted Rule 9(5) in paragraph 38 of this judgment. At the end of paragraph 50 also they have referred to Rule 9(5). In paragraph 72 the opinion of the Bench is expressed in the following terms:
Constitution of a selection committee for admission in order to select the students for admission with the Regional Joint Director of Collegiate Education of the concerned region, the principal of the concerned college, and one Government nominee, would show that the principals of the college will be in minority and the exclusive responsibility of the principal in the matter of ad-mission is taken away, as opposed to Rule (5).
11. The second case cited by the learned senior counsel for the appellant is the judgment referred to by the Division Bench decision mentioned above. We have already quoted the consideration of the said judgment in (The Association of Management of Private Colleges, represented by its Secretary, P. Haridas v. The Government of Tamil Nadu represented by the Secretary, Education Department, Fort St. George, Madras-9) W.A. No. 692 of 1983. In the said case, the argument advanced was that University has no power to take over the admission of students to private affiliated colleges, though it has the undoubted power to admit students to the University Colleges that is colleges established, maintained and administered by the University itself. The powers of the Syndicate of the Madras University was considered in the said case. The resolution, dated 23.4.1983 of the Syndicate of Madras University was challenged in the said case. The substance of the resolution dated 23.4.1983 of the Syndicate of Madras University was with refer-ence to the admission to the post-graduate courses in all affiliated colleges and the vice chancellor was authorised to take steps for centralising it by inviting applications centrally as it was obtained before 1979-80 so that no meritorious candidates is left out and with a view to maintaining standards of post-gradu-ate education in the university. Further form the date of resolution the University shall recommend 25% of the seats and the remaining 75% should be reCommended by the colleges of the University as per the guidelines prescribed by the Syndicate in March, 1979. In a circular issued on 4.5.1983 the Registrar of the University directed the private colleges not to call for applications for the post graduate courses in their colleges for 1983-84, as the University itself would be making admissions in respect of the affili ated colleges as well as the University Departments. W.P. No. 4971 of 1983 was filed in the High Court challenging the resolution and circular. The said reso-lution of the circular was challenged on several grounds. The University in its counter affidavit re-lied upon Section 12(4) of the Madras University Act and the statute after obtaining sanction of the prochan-cellor. As per the statute, the Vice Chancellor was empowered to regulate admissions to the post-gradu-ate courses. It has to be noticed that as per the said resolution of the circular only 25% of the seats was to be filed up by the University. After elaborate consideration of the various provisions contained in the madras University Act and the authorities cited, the Division Bench of this Court found that the Vice Chancellor had no power to make a statute in exercise of his power under Section 12(4) prescribing guide-lines with reference to matters of admission to post-graduate courses in affiliated colleges. The statute passed by the University was ultra vires with refer-ence to the powers of the vice chancellor. Therefore, the resolution and the guidelines laid down by the syndicate were held to be invalid. One of the contentions raised in the said case was that the power to admit students to various courses offered by the Private colleges is vested entirely with the management and if the power to admit students is taken away from the authorities it would make serious inroads in the control and discipline to be exercised by the man-agements. The learned Judge has also referred to Rule 9(5) of the Tamil Nadu Private Colleges (Regulation) Act, 1976 in the following terms:
We do not see how those decisions can be taken advantage of by the University to make a statute taking over the power to admit students to the affiliated colleges. The provision in Section 19(p) has always been understood as enabling the Syndicate to make a statute providing for eligibility conditions for admission of students to the University. It cannot be understood as enabling the University to make an Ordinance taking over the power to admit students to the various courses in the private affiliated colleges. As a matter of fact the power to admit students in the various courses in the private affiliated colleges has been con-ferred on the Principals of the Colleges by Rule 9(5) of the Tamil Nadu Private Colleges (Regulation) Rules, 1976 framed under the Tamil Nadu Private Colleges (Regulation) Act, 1976. The said Rule 9(5) is as follows:
The Secretary shall not interfere in the internal administration of the college such as admission, examination, promotion of the students and other academic matters as also the administration of special fee funds, which shall be made the exclu-sive responsibility of the principal". According to the said statutory rule the principal has got the power and responsibility in matters of admission of students in the colleges and that is taken as relating to the internal administration of the colleges with which even the Secretary of the college committee cannot interfere In view of these expressions by the Division Bench of this Court, neither the University nor the Government has power to issue guidelines or orders in contravention of Rule 9(5) so as to, deprive the principal of his exclusive right to make admission in a private college.
11. The learned Counsel for the respondent Mr. Chandru cited the following authorities end contended that the Government has got power to issue guidelines in the interest of maintaining the educational standard especially as regards the aided colleges.
1. T.K. Khanzode v. Reserve Bank of India and Anr. (1990) 1 L.L.J. 465. 2. Unni Krishnan v. State of Andhra Pradesh . 3. Madras Christian College v. The Deputy director of Collegiate Education, 1993 Writ L.R. 45. 4. A. Karunanidhi v. The Secretary and Correspondent, Poompuhar College, Melaiyur (1994) 2 L.W. 446. 5. K. Krishnamacharyulu v. Sri Venkateswara Hindu College of Engineering .6. Unreported judgment: W.A. Nos. 1179, 1242 and 1243 of 1993 and 132 of 1994 and W.P. No. 14226 of 1993 dated 6.9.1994. Before taking the above said cases for consideration, the learned Counsel has also submitted that there are already provisions under the Tamil Nadu Private Colleges Regulation Act, 1976 for the constitution of a committee. A reading of the provisions like Sections 11, 12 and 14 would show that the old notion of the principal and the management making the admission is no longer in existence. On the other hand, an aided college has to be administered by a committee constituted under the provisions of the said Act. He further contended if any of the provisions relating to the constitution of the committee is violated, the Government is empowered to with hold the grant as per Section 10(2). The learned Counsel further pointed out that under the rule making powers, the Government has made rules, In Rule 7 that a number of sub-rules regulating the granting of aid and with-holding it in private colleges. The object of the grant by the Government is only to maintain the academic standard. Rule 7(b) and 7(c) enable the Government to issue orders and guidelines. The impugned order and Guidelines are pursuant to the powers conferred by Rule 7(b) and 7(c). The learned Counsel further contended that un-less the rules are not challenged, the impugned order issued by the Government and Director of Collegiate Education also valid.
12. It is true that the committee has to be constituted by the administration of the college as per Section 11. Rule 8 relates to the constitution and functioning of the committee. The responsibilities of the committee as well as the Secretary are also set out. Rule 9(5) is once again extracted as hereunder:
9. Secretary of the Committee (1)...
(2)...
(3)...
(4)...
(5) The Secretary shall not interfere in the inter-nal administration of the college such as admission, examination, promotion of student and other academic matters as also the administration of special fee funds, which shall be made the exclu-sive responsibility of the principal.
(b)...
A reading of the sub-Rule establishes beyond dought that as regards admission, promotion of student and other affiliating matters.. shall be exclusive responsibility of the principal. The learned Counsel himself has agreed that the Rules have not been challenged and are valid. Rule (5) also must be taken to be valid and binding therefore, the contention of the counsel for the respondent that old notion of making admission by the Secretary and the management is incorrect. Agreed but the power is now exclusively vested with the principal. After having vested the power with the principal it is not open to the Government to take it away by the administrative orders.
13. The learned Counsel further contended that Rule 9(5) does not mean that the principal alone is responsible for making admissions. As we have noticed above, the word exclusive is there in the Rules. Therefore, there is no scope for any doubt. Now, we will take up the citations submitted by the learned Counsel for the respondents for consideration:
14. V.T. Khanzode and Ors. v. Reserve Bank of India and Anr. (1990) 1 L.L.J. 465. The said case arises out of Reserve Bank of India Act, 1934. The power to make Service Regulation under Section 58 came up for consideration in the said case. The contention was raised in that case that Central Board is empowered to make regulations in order to provide for all matters for which provision is necessary or convenient for the purpose of giving effect to the provisions of the Act and when rules have been made the rule alone has to be followed. The Apex Court has held that the Central Board can make regulations with reference to the conditions of the service of the staff by utilising the general power of administration and superintendence. The said case is not helpful at all far the respondents. After having made rules by the Government the Government cannot issue administrative orders contrary to the Rules framed by it as has been in the present case.
15. In Unni Krishnan v. State of Andhra Pradesh , the Apex Court in its land mark judgment has framed a scheme for admission in professional colleges. One of the clauses in the scheme provides that applications for admission shall be called for by the competent authority alone along with the' applications for admissions to Government University colleges of similar nature. For example, there shall be only one notification by the competent authority calling for applications for all the Medical Colleges in the State and one notifications for all the Engineering Colleges in the State. The Apex Court has held that the institutions which receive aid, shall, however, be subject to all such terms and conditions, as the aid giving authority may impose in the interest of general public. The rules and regulations frame by the Government sufficiently guide grant of aid as well as withholding it. There is no doubt in the absence of any statutory rules or regulations, the Government can issue order. A reading of the said judgment of the Apex Court does not show that after having issued the conditions for grant of aid etc., the Government can issue further regulations and Administrative orders in contravention of the already issued statutory orders.
16. The learned Counsel for the appellant has also pointed out that the decision of the Apex Court in that judgment is formly with reference to the professional colleges and further the scheme has been issued for the purpose of preventing collecting enormous amounts from the candidate under the guise of power to admit the paying candidates.
17. In Madras Christian College v. The Deputy director of Collegiate Education, 1993 Writ L.R. 45, Mr. Justice Srinivasan, as he then was has emphasised the duty of the private colleges to follow the instructions issued by the Government. In the said case, the college refused to include the name of the three teachers in the salary bill when it claimed grant from the respondent. The first respondent, the Deputy Director of Collegiate Education insisted on the College to include the names of those teachers. After setting out Rule 7(c) and (d) of the Rules the learned Judge has held that the educational institutions are bound to carry out the instructions issued by the Government with a view to maintain academic standards and to safeguard the interests of the teachers, and the students. Here also we do not find any support to the contention of the counsel for the respondent that the educational agency is bound to follow the instructions of the Governments issued in violation of the statutory rules already existing.
18. In A. Karunanidhi v. The Secretary and Correspondent, Poompuhar College, Melaiyur (1994) 2 L.W. 446, the Principal of the College was not retained till the end of the academic year after his superan-nuation. G.O. Ms. No. 281 dated 13.2.1981 enables the teachers in colleges to continue till the end of academic year. When the management refused to retain the retired principal a single judge of this Hon'ble Court issued direction to reinstate him in service. From this case also there is no support for the contention of the counsel for the respondent that government can issue administrative instructions contrary to the statutory rules. It is worthwhile to mention that neither in the Tamil Nadu Private Colleges (Regulation) Act (1976) nor in the Rules made therein there is any provision with reference to the continuance of a teacher till the end of the academic year if he attains the age of superannuation during the middle of the academic year.
19. The next case cited by the counsel for the respondent is K. Krishnamacharyulu v. Sri Venkateswara Hindu College of Engineering . In the said case a nonaided private Educational institution failed to pay its teachers as per the pay scales fixed by the Government. The teachers claimed the pay fixed by the Government and for such payment there was also Government instructions. The Apex Court there was also an element of public interest because there is aright to education. The Apex Court has further held that the employees of non-aided non-Government institutions are entitled to seek enforcement of Government orders under Article 226. In the said case, the question that was argued was that the employees of the non-aided institutions must seek the aid of the Industrial Dispute Act and must not resort to under Article 226 of the Constitution of India. Under such circumstances only the Apex Court held that when an element of public interest is defeated and the institution is catering to that element, the teacher, being the arm of the institution is also entitled to avail of the remedy provided under Article 226. In the said case there was no dispute as to whether the employees were entitled to the monetary benefit claimed by them. Therefore, the facts of the said case are distinct and different from the present one. Hence the said decision is also not helpful to the respondent.
20. An unreported decision of this Court in W.A. Nos. 1179, 1242 and 1243 of 1993 and 132 of 1994 and W.P. No. 14226 of 1993 dated 6.9.1994 was also pressed into service by the learned Counsel for the respondent. In the said case the First Division Bench of this Court has held that the Government have issued orders as to continuation of the teaching staff who attained the age of superannuation during the academic year till the end of that academic year is binding on the minority institutions. IN this batch of cases also the point involved was the validity of G.O. Ms. No. 249, Education dated 9.2.1996 which is similiar to other go. Directing the retention of the teachers in the colleges till the end of the academic year in case they attain the age of superannuation during the middle of the academic year. The first Di-vision Bench of this Court found that the said Government orders are regulatory and reasonable and do not affect the character of the minority institutions. What I have stated about the decision in A. Karunanidhi v. The Secretary of Correspondent, Poompuhar College, Melaiyur (1994) 2 L.W. 446 is applicable to this decision also. After consideration of all the above judgments cited on both sides I am of the view that the Government Orders contained in Ex. A3 and the guidelines Al, A2 and A4 issued in pursuant to Ex. A3 are contrary to Rule 9(5) of the Tamil Nadu Private Colleges (Regulation) Act. 1976. Hence they do not conform any enforceable civil right on the part of the teachers mentioned in those orders.
21. Now we are left with the other question of maintainability of the suit by the Federation The suit is for declaration and injunction. The reliefs claimed in the suit are remedies provided in the Specific Relief Act namely Sections 34 and 38. There are certain restrictions for filing a civil suit. The plaintiff is, Federation of College Employees Association, represented by its Secretary, M. Natarajan. Even as per the allegations in the plaint, the persons aggrieved are two senior most teachers and other two senior most teachers belonging to scheduled caste and scheduled Tribe Community, They have not filed the suit. In the plaint in paragraphs 10, 11 and 12 it is stated that even though the plaintiff association made repeated re-quests to the second defendant to form a selection committee as fixed by the guideline the second de-fendant has deliberately refused for the same. The persons, who are benefited by the orders under Exs. Al to A3 and who are aggrieved by the non-implementation of the above said orders are not the plaintiffs. As per Section 34 of the Specific Relief Act they are not the persons who are entitled to file suit for the declaration.
22. It is not the case that members of the Association are the only teachers contemplated by the Exs. Al to A3. There are large number of others who have no right to become members of the selection committee. The Association represents them also. A few members of the Association that too spread over all parts of Tamil Nadu in different colleges can be said to be aggrieved if they are not included in the selection committee. As far as this case is concerned, four teachers alone employed in the defendants institutions can be said to be aggrieved. There is no evidence available in this case to show that the aggrieved persons or the affected four teachers have requested or authorised the plaintiff association to file the suit. As per the Order 3, Rule 1:
Any appearance, application or act in or to any court, required or authorised by law to be made or done by a party in such court may except where otherwise expressly provided by any law for the time being in force or done by the party in per-son, or by his Recognised agent, or by a pleader (appearing, applying or acting, as the case may be) on his behalf.
Provided that any such appearance shall, if the court so directs, be made by the party in person.
23. Rule 2 of II C.P.C. defines recognised agents. Rule 2 has been amended by the Madras High Court, which is as follows:
2. The recognized agents of parties by whom such appearances, applications and acts may be made or done are the persons holding powers of attorney, authorising them to make and do such appearances, applications and acts on behalf of parties". There are also provisions for filing suits by or against corporation by or against firms and persons carrying on business in the names of parties not resident within the local limits of the ju-risdiction by or against trustees, executory, ad-ministrators Orders 29, 30 and 31 govern the procedure to be followed in case where such suits are filed.
24. The grievance sought to be relieved or the reliefs claimed in the suit are not with reference to the asso-ciation as such, but for and on behalf of four indi-vidual persons. Hence if such suit is allowed to be maintained it will lead to complications with refer-ence to stay of suit as provided under Section 10, C.P.C. Res judicata as provided under Section 11 and regulations under Order 1, Rules 2, 3 etc., C.P.C. The really aggrieved persons can feel that they are not bound by the present suit. They may aspire to file another suit with reference to future admissions. In such case, there will be difficulty in applying the various provisions of the C.P.C. especially with reference to the bar of subsequent suits. Inspite of these hurdles, the courts below have taken the view that the Association can maintain the suit since the aggrieved persons are members of the Association. That view does not appear to be correct.
25. The learned Counsel for the respondent cited the decision reported in Singhai Lal Chand Jain (dead) v. Rashtriya Swayamsewak Singh Parma and Ors. . In the said suit, the suit for eviction was filed against Rashtriya Swayamsewak Sangh through Manager, its President and its member. The suit was dismissed by the trial court. The defence was that the suit is not maintainable as the sangh was not a registered one. But the High Court decreed the suit whereupon special leave was refused by the "Apex Court. At the execution stage a plea was raised contending that sangh was not a registered body but Composed of several members and the appellant having not followed the procedure under Order 1, Rule 8, C.P.C. the decree was a nullity. The executing court upheld the objection and dismissed the petition, on revision, the High Court confirmed the same. But the Apex Court repelled the contention of the sangh and held that through no permission of the court was taken to be sued in a representative capacity by or on behalf of the sangh Rule, 8(1)(b)of Order 1, C.P.C. which indicated that it may sue or be sued or may defend such suit on behalf of or for the benefit of all persons so interested clearly applied to the facts in this case. Since the President of the Sangh, the Manager of the Sangh and a member duly represented the Sangh and defended the suit for the benefit of all the persons so interested in the sangh, the decree was not a nullity. The Apex Court observed in that context that is the handmaid to substantive justice. The objections in that case was with reference to Order 1, Rule 8, C.P.C. In the words of the Apex Court.
the sangh was properly represented by President, Manager, who was at the relevant time in office on behalf of the sangh and also a member of the sangh was no other than the Headmaster and practising Advocate as President. The High Court after hearing the counsels on either side considered the case and decreed the suit. With the dismissal of the special leave petition of this Court the decree became final. Therefore, it cannot be said to be collusive suit nor a shadow of negligence is traceable so as to treat the decree a nullity. It shows that though no permission of the court was taken to be sued in a representative capacity by or on behalf of the sangh, but Order 1, Rule 8(1)(b), C.P.C. indicated that it may sue or be sued, or may de-fend such suit on behalf of or for the benefit of all persons who are interested clauses (b) clearly applied to the facts of this case.
Therefore, even as per the view of the Apex Court the provisions contemplated under Order 1, Rule 8( 1)(b) was complied with. But in this case as we have seen there is no compliance of the provisions of C.P.C. and the Specific Relief Act. Hence the present plaintiff who has filed the suit has no locus standi to maintain the suit. As at the time of the argument, only, the aforesaid two main points were urged by both the counsels and as I agree with the contention raised by the counsels for the appellants and I do not agree with the contentions raised by the counsel for the respondent, the judgment and decree of the lower appellate court partly confirming the decree and judgment of the trial court is set aside. The suit is dismissed. How-ever, there be no orders as to costs.