Madras High Court
Sir M.Ct.Muthiah Chettiar vs The Government Of Tamil Nadu
Author: V.Ramasubramanian
Bench: V.Ramasubramanian
In the High Court of Judicature at Madras
Reserved on 03.11.2014 and delivered on 13.11.2014
CORAM
THE HON'BLE MR.JUSTICE V.RAMASUBRAMANIAN
W.P.No.23177 of 2013
Sir M.Ct.Muthiah Chettiar
Boys Higher Secondary School
rep. by its Correspondent
23, Raja Annamalai Road,
Purasawalkam, Chennai 600 084. .. Petitioner
Vs.
1. The Government of Tamil Nadu
rep. by its Secretary
Department of School Education,
Fort St. George, Chennai 600 009.
2. The Director of School Education
D.P.I. Compound
College Road, Chennai 600 006.
3. The Chief Educational Officer
Saidapet, Chennai 600 015.
4. The District Educational Officer
Chennai North, Chennai 600 008.
5. Sir M.Ct.Muthiah Chettiar
Higher Secondary School Teaching
and Non-teaching Staff Association
No.13/1, Ganga Street
Rajaji Nagar, Villivakkam
Chennai 600 049. .. Respondents
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Petition filed under Article 226 of the Constitution of India, for the issuance of a writ of Certiorari, calling for the records in proceedings Na.Ka.No.5569/A2/2011, dated 29.02.2012 issued by the fourth respondent and the consequent order of rejection of appeal in proceeding RC.No.1625/B2/2013 dated 28.06.2013 issued by the third respondent and to quash the same.
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For Petitioner : Mr.N.R.Chandran, S.C.
For Ms.Malarvizhi Udayakumar
For Respondents 1 to 4 : Mr.P.Sanjay Gandhi, Addl.G.P.
For Respondent-5 : Mr.V.Selvaraj
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O R D E R
The petitioner has come up with the above writ petition challenging an order passed by the District Educational Officer, North Chennai and an order passed by the Chief Educational Officer, ordering directing payment of the salaries to the staff of the petitioner-School.
2. Heard Mr.N.R.Chandran, learned senior counsel appearing for the petitioner, Mr.P.Sanjay Gandhi, learned Additional Government Pleader appearing for the respondents 1 to 4 and Mr.V.Selvaraj, learned counsel appearing for the association of teaching and non-teaching staff of the School.
3. The case on hand is a standing testimony to the fact that if the Management and the staff of an educational institution are at loggerheads, the stream of education can get polluted to a frustrating level.
4. From the year 2011, trouble started brewing in the petitioner institution, with the Management and the staff trading allegations each other. The students were instigated by the teachers to go on strike in September 2011, forcing the Joint Director of School Education and Chief Educational Officer to inspect the school on various dates in September and October, 2011. The staff association first came up with a writ petition in W.P.No.26054 of 2011 seeking to prevent the Management from converting classrooms for commercial purpose. The Management initiated disciplinary action against a few teachers, which also became the subject matter of challenge.
5. When the teaching and non-teaching staff of the School decided to stage a demonstration inside the campus, the Management came up with a writ petition in W.P.No.4900 of 2012. The said writ petition was admitted on 29.02.2012 and an interim order was granted restraining the association of teaching and non-teaching staff from indulging in any activity affecting the interest of the students and the school.
6. But, on the same day, namely 29.02.2012, the District Educational Officer of North Chennai passed an order under Rule 19 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, ordering direct disbursement of the grant-in-aid to the staff of the School, bypassing the Management. Challenging the said order, the Management of the School came up with a second writ petition in W.P.No.6036 of 2012.
7. It so happened that both the writ petitions came up before me for final hearing in August 2012. After taking note of the various disputes between the Management and the staff and after careful consideration of the Scheme of the Act and the Rules, I passed a final order in both the writ petitions on 16.8.2012. By the said order, I allowed the writ petition W.P.No.6036 of 2012 and set aside the order for direct payment, by following two decisions of this Court, one in Papanasam Labour Welfare Association Higher Secondary School v. Chief Educational Officer [1998 (3) CTC 753] and another in W.P.No.11621 of 2005 dated 20.02.2006. Insofar as W.P.No.4900 of 2012 was concerned, I disposed it of with a direction to the Director of School Education to conduct an enquiry into the affairs of the School and the manner in which the School was managed and administered as well as the manner in which staff discharged their duties and to take appropriate action so as to keep a check both on the Management as well as the staff.
8. The Management of the School accepted the verdict, despite the fact that I had directed an enquiry to be conducted by the Director of School Education. However, the association of teaching and non-teaching staff filed an appeal in W.A.No.2107 of 2012 against the order passed in W.P.No.6036 of 2012, setting aside the direct disbursement order. On the sole ground that the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, provided a right of appeal under Section 41 to the Chief Educational Officer and that the Management ought to have exhausted such an alternative remedy of appeal, the Division Bench allowed the appeal filed by the association of teaching and non-teaching staff, by an order dated 28.11.2012. The Division Bench overlooked the fact that the order for direct disbursement had been passed in violation of the principles of natural justice and that therefore, the availability of an alternative remedy was not a bar. Challenging such a shortcut to success, the Management filed a Special Leave Petition before the Supreme Court, but the same was dismissed.
9. Therefore, the Management filed a statutory appeal under Section 41 to the Chief Educational Officer, as against the order of the District Educational Officer for direct disbursement of the staff grant. This appeal was dismissed by the Chief Educational Officer, by an order dated 28.6.2013. Therefore, the petitioner is back to square one, challenging the original order of the District Educational Officer dated 29.02.2012 and the order of the Appellate Authority dated 28.6.2013 ordering direct disbursement.
10. The writ petition was admitted on 22.8.2013. But, in the meantime, one development had taken place. It is necessary to take note of this development, before proceeding to consider the grounds of challenge to the impugned orders.
11. Taking cue from the order passed by me on 16.8.2012 in W.P.No.4900 of 2012, directing the Director of School Education to hold an enquiry and to pass an order and even to consider the appointment of a Special Officer, the Director of School Education appears to have sent a proposal dated 16.5.2013 to the Principal Secretary to Government, School Education Department, recommending the appointment of a Special Officer under Section 18-A of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973. On the said proposal, the Principal Secretary to Government, School Education Department, passed an order dated 05.8.2013 directing the District Educational Officer, North Chennai, to take over the administration of the School, pending examination of request for invoking the power under Section 18-A. But, it appears that the District Educational Officer did not take over the administration, as the Act does not provide for such a contingency. The only manner in which the School Education Department can take over the administration is to invoke the power under Section 18-A and to appoint a Special Officer. There is no provision for assuming the administration.
12. Therefore, the District Educational Officer appears to have inspected the School on 07.10.2013 and held a spot enquiry and obtained a written report from the Headmaster. In the report, the Headmaster seems to have submitted that the defects alleged in the original order of the District Educational Officer dated 29.02.2012 for ordering direct disbursement had been removed. Therefore, after being satisfied with the report of the Headmaster and after actually recording the steps taken by the Management for raising the standards in the School by spending more than about 13.00 Lakhs, the District Educational Officer sent a proposal dated 15.10.2013 to the Director of School Education, recommending the withdrawal of the system of direct disbursement. But, the Joint Director of School Education, after perusing the recommendation of the District Educational Officer dated 15.10.2013, directed the Chief Educational Officer to hold consultations with the office bearers of the association of teaching and non-teaching staff and to submit a report. The Chief Educational Officer sent a report on 06.01.2014, rejecting the recommendation made by the District Educational Officer, on the sole ground that the District Educational Officer had made recommendations without consulting the office bearers of the association of teaching and non-teaching staff.
13. It is an irony of fate that the Chief Educational Officer, who rubbished the recommendation of the District Educational Officer for withdrawal of the order of direct disbursement, has subsequently been placed under suspension for other irregularities. Though it has nothing to do with the case on hand, I have brought this fact on record, in the light of the developments that had taken place ever since the filing of the writ petition.
14. In the background of the past history as well as the subsequent development, the challenge of the petitioner to the impugned orders directing direct disbursement of the grant-in-aid, is on the following grounds:
(i) that the conditions precedent for ordering direct disbursement are not satisfied;
(ii) that the order for direct disbursement had been passed in violation of the principles of natural justice; and
(iii) that mere disputes between the Management and the staff with regard to the enforcement of discipline, cannot be a ground for ordering direct disbursement, in the absence of allegations of malfeasance, misfeasance, misappropriation or non payment of salary to the staff.
15. The response of the association of teaching and non-teaching staff of the School, which is impleaded as the fifth respondent in the above writ petition, to the above contentions of the writ petitioner, is as follows:
(a) that the petitioner Management fraudulently obtained a decree of declaration of minority status from the VI Assistant Judge, City Civil Court, in O.S.No.7925 of 1976, under an ex parte judgment and decree dated 23.02.1980;
(b) that at the time when the other writ petitions, W.P.No.4900 of 2012 and W.P.No.6036 of 2012 came up for hearing, the learned counsel appearing for the writ petitioners gave up the claim of minority status;
(c) that however, the Management revived the claim of minority status by filing subsequent writ petitions and also placing reliance upon the proceedings of the District Educational Officer dated 15.10.2013;
(d) that therefore, the petitioner is guilty of approbating and reprobating, disentitling them to any relief; and
(e) that once the Principal Secretary to Government issued a communication dated 05.8.2014, directing the District Educational Officer to take over the administration of the School, the challenge to the order directing direct disbursement has become an exercise in futility and that therefore, the writ petition deserves to be dismissed.
16. Before proceeding to consider the other contentions, it is imperative that the air of doubt (or suspicion) created over the status of the petitioner is cleared. It is true that the petitioner Management approached the City Civil Court in O.S.No.7925 of 1976 seeking a declaration that it is a denominational institution belonging to the religious denomination of Nattukottai Nagarathar community. Unfortunately, the State educational authorities, who were impleaded as the defendants, remained ex parte and the VI Assistant City Civil Court granted an ex parte judgment and decree on 23.02.1980. But, the judgment and decree are completely perverse and contrary to law and are not worth the paper on which the decree has been drafted. The judgment in entirety reads as follows:
"PW1 examined. Exhibits A1 to A5 marked. The evidence of PW1, coupled with Exhibits A1 to A3 show that the plaintiffs claim is true and that the defendants have no right of interference. Hence, the suit is decreed as prayed for."
There are only two types of minorities, namely religious minorities and linguistic minorities, recognised by law. There is no religious denomination of a minority character known as Nattukottai Nagarathar community. The members of the community profess Hinduism and their mother tongue is Tamil. Therefore, even if the State authorities had remained ex parte, the City Civil Court could not have passed a decree in favour of the petitioner.
17. In T.M.A. Pai Foundation v. State of Karnataka [(2002) 8 SCC 481], the Supreme Court made it clear that the operation of the decrees passed by Civil Courts declaring minority status of institutions would stand stayed and that those institutions will have to approach the State Government for a declaration. But, unfortunately, overlooking the same, the Director of School Education appears to have passed an order on 31.01.2006, recognising the petitioner as a minority institution on the sole ground that the petitioner had obtained a decree of declaration of status much before the order passed by the Supreme Court. This order was subsequently set right to a limited extent by the District Educational Officer, by an order dated 06.5.2011. However, by another order dated 15.10.2013, the District Educational Officer appears to have restored the first order dated 31.01.2006 of the Director of School Education. It is this order that has emboldened the petitioner to make a claim on and off.
18. But, by virtue of the order of the Supreme Court dated 17.10.1994, the decree of declaration granted by the Civil Court is no longer in force. The order passed by the Director of School Education on 31.01.2006 is an order passed without jurisdiction. The guidelines for declaring minority status have been issued in G.O.Ms.No.375, School Education dated 12.10.1998. The order of the Director of School Education dated 31.01.2006 is not in accordance with the Government Order in G.O.Ms.No.375. Therefore, the petitioner cannot claim either the benefit of the decree of the Civil Court or the benefit of the order of the Director of School Education dated 31.01.2006. Consequently, the order of the District Educational Officer dated 15.10.2013 falling back upon the Director's order dated 31.01.2006 is of no avail. Hence, there is no iota of doubt that the petitioner cannot claim minority status at all.
19. Once it is clear that the petitioner cannot claim minority status, it follows as a corollary that the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and the Rules issued thereunder would apply.
20. The Act does not contemplate direct disbursement of salary to the teachers. Section 27 of the Act merely stipulates that the pay and allowances of teaching and non-teaching staff should be paid on or before the such day of every month, in such manner and by or through such authority as may be prescribed. Section 18-A provides for appointment of a Special Officer in certain cases and Section 34 provides for take over of management of a private school.
21. Rule 11(1) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, provides for payment of grants to recognised private schools from out of State funds. The authority competent to sanction the grant is the District Educational Officer, as per Sub-rule (2) of Rule 11.
22. Rule 19 postulates that the procedure for payment of pay and allowances to teachers and other persons employed in private schools shall be as in Annexure III.
23. Annexure I to the Rules divides the grants that could be made, into two categories, namely (a) staff grant and (b) maintenance grant. Annexure III contains the procedure for payment of pay and allowances to teachers and others. Under paragraph (1)(a) of Annexure III, the District Educational Officer is obliged to release the teaching grant bills to the Secretary of the School, marking a copy of the sanction order to the treasury. The Secretary, in turn, should disburse the pay and allowances to the teachers and others. Under paragraph II of Annexure III, the District Educational Officer is empowered under special circumstances to make direct payment to the Headmaster of a School or to the teachers of a School.
24. Therefore, it is clear from the Scheme of the Act that the disbursement of the grant to the Secretary of the School is the rule and direct disbursement to the teachers is an exception, to be followed under special circumstances.
25. What are special circumstances, are not indicated in the Act. Therefore, one may have to take it that the authority competent to sanction the grant, namely the District Educational Officer should arrive at a subjective satisfaction about the existence of special circumstances, but following an objective criteria.
26. In the case on hand, the District Educational Officer, on the basis of the circumstances prevailing then, passed an order on 29.02.2012, directing direct disbursement. But, that order was passed without following the principles of natural justice. At least two Judges of this Court have taken a view that such orders, passed in violation of the principles of natural justice are vitiated. The fact that the petitioner was not afforded an opportunity, is not denied. But, unfortunately, the Appellate Authority has failed to address this issue in his elaborate order, which appears to be one taken to dictation from the teaching and non teaching staff.
27. As stated earlier, the competent authority to sanction the grant is the District Educational Officer. He alone is the authority vested with the power to order direct disbursement "under special circumstances". Now, the District Educational Officer himself has taken a view, as per his proceedings dated 15.10.2013, recommending the withdrawal of the order for direct disbursement. Once the District Educational Officer has arrived at a satisfaction that the conditions for ordering direct payment do not exist any more, I do not know why and how the Chief Educational Officer could take exception to the same.
28. The contention of Mr.V.Selvaraj, learned counsel for the association of teaching and non-teaching staff that as per the order of the Principal Secretary to Government, dated 05.8.2013, the District Educational Officer has been directed to take over the administrative control of the School and that therefore, the present writ petition cannot bring any fruit to the petitioner, is not well founded. As I have stated earlier, there are only two provisions in the Act, one under Section 18-A for the appointment of a Special Officer, superseding the Committee of Management and another under Section 34 for taking over the Management. The order of the Principal Secretary to Government dated 05.8.2013 directing the District Educational Officer to take over the administration, has not been passed either under Section 18-A or under Section 34. First of all, the order dated 05.8.2013 is not a Government Order, but a communication sent by the Principal Secretary to the Government. If it is to be construed as one under Section 18-A(1), it should have been preceded by an opportunity to the Management to make a representation against the proposal to suspend the Management of the School. Moreover, the suspension of the Management is not to be for a period exceeding one year. Even a bare reading of the order dated 05.8.2013 would show that it is not under Section 18-A.
29. Similarly, it is not under Section 34(1), since an order under Section 34(1) can be passed only by the Government, after recording a satisfaction that the suspension of the Management under Section 18-A would not be sufficient to set right things. Moreover, Section 34(2) also contemplates an opportunity of hearing. Hence, the order dated 05.8.2013 is a paper order, which has no sanction under any of the provisions of the Act or the Rules. Hence, the said order cannot stand in the way of the entitlement of the petitioner to challenge the direct disbursement order.
30. As pointed out earlier, the competent authority is today satisfied that the conditions for direct payment do not exist any more. The Appellate Authority committed a grave error in thinking that the association of teaching and non-teaching staff had a right to dictate things. It has never been the claim of the teaching and non-teaching staff that their pay and allowances were not properly disbursed. Right from the year 2011, the only grievance of the teaching and non-teaching staff was that the Management wanted to enforce discipline. The educational authorities cannot allow themselves to be used as tools by the teaching and non-teaching staff to bring the Management to their knees. Unfortunately, the Chief Educational Officer has lost sight of this aspect, while passing the impugned order. The fact that the Chief Educational Officer himself has now come to be placed under suspension is a different matter.
31. In view of the above, the impugned orders are unsustainable. They have been passed contrary to two decisions of this Court. Even the officer who originally passed the order for direct payment on 29.02.2012, has now revised his opinion, but the same has been found fault by the Appellate Authority. Hence, the writ petition deserves to be allowed. Accordingly, the writ petition is allowed and the impugned orders are set aside. The District Educational Officer is directed to release the staff grant and maintenance grant to the Management of the School. No costs. Consequently, M.P.No.2 of 2013 is closed.
Index : Yes/No 13.11.2014.
Internet : Yes/No
kpl
To
1. The Secretary
Department of School Education,
Fort St. George, Chennai 600 009.
2. The Director of School Education
D.P.I. Compound
College Road, Chennai 600 006.
3. The Chief Educational Officer
Saidapet, Chennai 600 015.
4. The District Educational Officer
Chennai North, Chennai 600 008.
V.RAMASUBRAMANIAN,J.
kpl
Order in
W.P.No.23177 of 2013.
13.11.2014.