Madras High Court
D.Jebamani Pearlin vs The Manager on 26 March, 2010
Author: V. Ramasubramanian
Bench: V. Ramasubramanian, D.Hariparanthaman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26/03/2010
CORAM
THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN
AND
THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN
W.A.(MD)No.245 of 2009
W.A.(MD)No. 249 of 2009
W.A.(MD)No.253 of 2009
W.A.(MD)No.254 of 2009
W.A.(MD)Nos.138 to 141 of 2009
W.A.(MD)Nos.270 to 276 of 2009
W.A.(MD)Nos.279 to 286 of 2009
W.A.(MD)Nos.313 to 315 of 2009
and
W.A.(MD)Nos.327 to 329 of 2009
W.A.(MD)Nos.375 to 380 of 2009
W.A.(MD) No.245 of 2009
D.Jebamani Pearlin .. Appellant
vs
1.The Manager,
TDTA Primary & Middle School,
Diocesan Office,
Palayamkottai,
Tirunelveli-2.
2.The Correspondent,
T.D.T.A. Primary School,
Levingipuram,
Donavoor Region,
Tirunelveli District.
3.The District Elementary Educational Officer,
Tirunelveli-2.
4.The Additional Assistant Elementary Educational
Officer, Kalakkadu Region,
Tirunelveli District. .. Respondents.
Writ Appeal filed under Clause 15 of the Letters Patent Act, against the
order of this Court in WP(MD) No.3205 of 2009 dated 28.5.2009.
!For Appellants in all appeals ... Mr.M.Vallinayagam
Mr.Veera Kathiravan
Mr. Isaac Mohanlal
S.Mani.
^For Respondents ... Mr. Joseph Thatheus Jerome
:COMMON JUDGMENT
V. RAMASUBRAMANIAN, J.
The "TINNEVELLY DIOCESAN TRUST ASSOCIATION", hereinafter referred to as TDTA, is an association, which was originally incorporated under the Indian Companies Act, 1913, with the erstwhile Additional Assistant Registrar of Joint Stock Companies, Tinnevelly in the year 1919. The primary objects for which the said association was formed, included the object of aiding and furthering the work of the Church of South India in the Diocese of Tirunelveli. As per the Articles of Association, the Bishop of the Diocese and the Treasurer of the Tinnevelly Diocesan Council were to be ex-officio members of the association. The members of the association shall be the members of the Executive Committee of the Tinnevelly Diocesan Council on their signifying their consent to become members.
2. It appears that on 4.12.2007 and 21.12.2007, election of Office bearers to the Diocesan Council was held. Thereafter, a group of about 58 persons appear to have filed a suit in O.S.No.2898 of 2008 on the file of the II Assistant City Civil Court, Chennai, seeking a declaration that they were duly elected as Office bearers of the Church Council and Diocesan Council of the Diocese of Tirunelveli. Pending suit, the plaintiffs in that suit sought an interim injunction in I.A.No.6990 of 2008 for restraining the Diocese of Tirunelveli from interfering with the duties and functions performed by the plaintiffs in the matter of appointment and transfer of teachers in Schools and Colleges run by them. On 30.4.2008, the City Civil Court granted an interim order of status- quo. Subsequently, the Diocese of Tirunelveli filed an application in I.A.No.9666 of 2008 to recall and rescind the order of status-quo. In that application, the City Civil Court passed an order dated 21.7.2008, directing the parties to maintain status-quo as on 21.12.2007. This order dated 21.7.2008 and a few other orders of the City Civil Court became the subject matter of a batch of Civil Revision Petitions filed by the Diocese of Tirunelveli under Article 227 of the Constitution. By a common order dated 18.8.2008, passed in those Civil Revision Petitions, CRP(PD) Nos.2527 to 2529 and 2601 and 2602 of 2008 (reported in 2008 (7) MLJ 784), S.Tamilvanan, J., set aside the order of status- quo passed on 30.4.2008 as well as on 21.7.2008. By the same order, the learned Judge directed the trial Court to dispose of the suit within 6 months.
3. In para 47 of his order, passed in the above Civil Revision Petitions, the learned Judge took note of the fact that the Diocese of Tirunelveli is admittedly running several Schools, Colleges and Hospitals and that the Court was duty bound to pass suitable orders to enable the administration of those institutions to continue without any hardship to the students, teachers and the public. After pointing this out, the learned Judge issued a direction in the penultimate paragraph of his order, which reads as follows:-
"Hence this Court is of the considered view to permit the Diocese of Tirunelveli, represented by its Bishop, the revision petitioner in C.R.P.(PD) Nos.2527 to 2529 of 2008 to continue the administration with the office bearers, including the revision petitioners in C.R.P.(PD) Nos.2601 and 2602 of 2008, holding their respective posts, as per Exhibit R-1, till the disposal of the suit."
4. As against the said order dated 18.8.2008, passed in those Civil Revision Petitions, SLP (Civil) Nos.24587 to 24589 of 2008, were filed on the file of the Supreme Court. These Special Leave Petitions were tagged along with other Special Leave Petitions arising out of various connected matters. Ultimately, after we heard arguments in the present batch of writ appeals and reserved orders, SLP(Civil) Nos.24587 to 24589 of 2008, arising out of the order dated 18.8.2008 passed in the Civil Revision Petitions were withdrawn by the plaintiffs in O.S.No.2898 of 2008 on 20.8.2009.
5. During the period from 30.4.2008 (the first date on which the City Civil Court granted an interim order of status-quo) and 21.7.2008 (the date on which the status-quo order was given retrospective effect from 21.12.2007) upto 18.8.2008 (the date on which the Civil Revision Petitions were allowed and the status-quo order vacated), several appointments, transfers and promotions were granted in the Schools and Colleges run by TDTA. These orders were reversed by the Bishop and his nominees, after their success in the Civil Revision Petitions on 18.8.2008. Aggrieved by such reversal of the orders of appointment, transfer and promotion, the teachers filed a batch of writ petitions, most of which were dismissed by a learned Judge, by a common order dated 28.5.2009. Four writ petitions forming part of the batch, but filed by the rival group, were allowed. Aggrieved by the adverse orders suffered by them, either due to the dismissal of their own writ petitions or due to the allowing of the writ petitions filed by the rivals, the teachers of the Schools and Colleges have come up with the above writ appeals.
6. We have heard Messers.Veera. Kathiravan, M.Vallinayagam and Isaac Mohanlal, learned counsel appearing for the appellants and Mr.Joseph Thatheus Jerome, learned counsel appearing for the management.
7. Since the facts out of which each of the writ petitions arose, have not been set out in the common order passed by the learned Judge, there appears to be an element of uncertainty. Therefore, we propose to set out at least the basic facts, out of which each of the writ appeals on hand arise, so that the issues arising for consideration can be appreciated with clarity and alacrity. But to do so, we have categorised all the writ appeals into 4 types viz.,
(i) 4 Writ Appeals filed by School Teachers against the interim orders passed in their writ petitions;
(ii) 7 Writ Appeals filed by School Teachers against the dismissal of their writ petitions arising out of cancellation of their promotions;
(iii) 2 writ appeals arising out of 2 writ petitions filed by persons staking rival claims as Secretary of the College Committee; and
(iv) 22 Writ Appeals arising out of the dismissal of the writ petitions of 22 College Teachers, who were discharged from service.
WRIT APPEALS BY SCHOOL TEACHERS AGAINST INTERIM ORDERS:
Writ Appeal (MD) Nos.138 and 139/2009:
8. These two writ appeals are filed by one Jebakumari. She was originally appointed as Secondary Grade Teacher in one of the schools run by CSI Diocese, Tirunelveli on 12.10.1993. She was transferred from place to place and ultimately she came to TDTA Primary School at Ettiseri. While working there, the Manager of TDTA Primary and Middle Schools, promoted her by order dated 11.8.2008 and posted her as Headmistress of TDTA Primary School, Panaiyur, in the vacancy caused due to the retirement of the regular incumbent there. She joined duty on 12.8.2008.
9. However, after the disposal of the Civil Revision Petitions on 18.8.2008, another person was posted as Headmaster. Therefore, the appellant Jebakumari filed a writ petition in W.P.(MD)No.8055 of 2008, seeking a Writ of Mandamus to direct the respondents therein, to permit her to function as Headmistress. When the writ petition came up for hearing on 5.9.2008, a counter affidavit was filed on behalf of the Manager, TDTA Primary and Middle Schools and the Correspondent of TDTA Primary School, Panaiyur. It contained an undertaking to the effect that they would not disturb the petitioner Jebakumari from functioning as Headmistress for the present. However, they also reserved their right to proceed against the petitioner as per rules after observing the principles of natural justice to set aside the order of promotion of Jebakumari dated 11.8.2008. Based on the said undertaking, the writ petition W.P.(MD) No.8055 of 2008 was closed.
10. Thereafter, the appellant Jebakumari was issued with a show cause notice dated 5.11.2008. She submitted an explanation on 11.11.2008. By a memo dated 15.11.2008, Jebakumari was directed to appear for an enquiry on 19.11.2008. Since she made a request for impartial outsiders to hold the enquiry, she did not attend the enquiry on 19.11.2008. Again by a memo dated 5.1.2009, she was asked to attend an enquiry by a three member Committee on 13.1.2009. Though the appellant made a request for postponement of the enquiry, she was set ex parte and a report was submitted. Based upon the said report, an order was passed on 24.3.2009, reverting Jebakumari from the post of Headmistress to the post of Assistant Teacher in TDTA Primary School, Ettiseri.
Not stopping at reversion, the said order dated 24.3.2009 also threatened Jebakumari of automatic termination of services, if she failed to report for duty within 7 days at the place to which she was posted on reversion.
11. Challenging the order of reversion dated 24.3.2009, Jebakumari filed a writ petition in W.P.(MD) No.2647 of 2009. Pending the writ petition, she sought two interim reliefs, one in M.P.(MD) No.1 of 2009 for a stay of the order impugned in the writ petition and another in M.P.(MD) No.2 of 2009 for an injunction restraining the respondents from interfering with the right of the petitioner to function as Headmistress.
12. On 2.4.2009, the learned Judge before whom the writ petitions came up for admission, passed an order to the following effect:-
"As the impugned order in the above writ petitions reads that the petitioners have already been terminated from service, interim stay or interim injunction of reversion cannot be granted at this stage. There shall be an order of interim stay of termination of service of the petitioners."
13. Aggrieved by the fact that a stay of reversion was not granted, the said Jebakumari has come up with the writ appeals W.A.(MD) Nos.138 and 139 of 2009 against that portion of the order dated 2.4.2009, passed by the learned Judge in M.P.(MD) Nos.1 and 2 of 2009 in W.P.(MD) No.2647 of 2009.
14. At the outset, we do not think that the learned Judge is wrong in refusing to grant an interim stay of or injunction against reversion. As a matter of fact, the learned Judge has protected the interest of the appellant by granting interim stay of termination and rightly so, since the appellant was not facing disciplinary proceedings. She was the beneficiary of an order of promotion granted by a set of persons, claiming to be office bearers. Their position itself got uprooted by the order passed in the Civil Revision Petitions and the management has reversed the order of promotion. The question as to whether such reversal was right or wrong, can be gone into in the writ petition. If the appellant succeeds in the writ petition, she would certainly be restored to her promoted post. If she fails in the writ petition, the salary paid to her in the promoted post cannot be recovered, if a stay of reversion is granted. Therefore, the learned Judge was right in refusing to grant a stay of reversion, while protecting the interest of the appellant by granting stay of termination. In such circumstances, we see no ground to entertain the writ appeals W.A.(MD) Nos.138 and 139 of 2009 and hence they are dismissed.
W.A.(MD) Nos.140 and 141 of 2009:
15. These two writ appeals are filed by one Rachel Deva Anbu Nesammal. She was originally appointed as Secondary Grade Teacher in one of the schools run by CSI Diocese, Tirunelveli on 29.8.1984. She was promoted as Headmistress of TDTA Primary School, Karunkulam on 20-4-2000. While working as such, the Manager of TDTA Primary and Middle Schools, promoted her by order dated 11.8.2008 and posted her as Headmistress of TDTA Middle School, Kaluthur, Nanguneri. She joined duty on 12.8.2008.
16. However, after the disposal of the Civil Revision Petitions on 18.8.2008, another person by name Mr.Daniel Bhagavath Singh came to the school on 19.8.2008, claiming to have been appointed as Headmaster by the Manager. Therefore, the appellant Rachel Deva Anbu Nesammal filed a writ petition in W.P.(MD)No.7978 of 2008, seeking a Writ of Mandamus, to direct the respondents to permit her to continue to function as Headmistress of the Middle School. In that writ petition, the Manager and Correspondent of the school filed a counter affidavit undertaking not to disturb her as Middle School Headmistress. However, they reserved their right to proceed against her as per the Rules, after observing the principles of natural justice.
17. Thereafter, the appellant Rachel Deva Anbu Nesammal was issued with a show cause notice dated 5.11.2008. She submitted an explanation. By a memo dated 15.11.2008, Rachel Deva Anbu Nesammal was directed to appear for an enquiry on 22.11.2008. Since she made a request for impartial outsiders to hold the enquiry, she did not attend the enquiry on 22.11.2008. Again by a memo dated 5.1.2009, she was asked to attend an enquiry by a three member Committee on 13.1.2009. Though the appellant made a request for postponement of the enquiry, she was set ex parte and a report was submitted. Based upon the said report, an order was passed on 24.3.2009, reverting Rachel Deva Anbu Nesammal from the post of Headmistress in TDTA Middle School to the post of Headmistress in TDTA Primary School, Kaluthur, Nanguneri. Not stopping at reversion, the said order dated 24.3.2009 also threatened Rachel Deva Anbu Nesammal of automatic termination of services, if she failed to report for duty within 7 days at the place to which she was posted on reversion.
18. Challenging the order of reversion dated 24.3.2009, Rachel Deva Anbu Nesammal filed a writ petition in W.P.(MD) No.2646 of 2009. Pending the writ petition, she sought two interim reliefs, one in M.P.(MD) No.1 of 2009 for a stay of the order impugned in the writ petition and another in M.P.(MD) No.2 of 2009 for an interim direction, directing the respondents to pay the salary of the post of Headmistress.
19. On 2.4.2009, the learned Judge before whom the writ petitions came up for admission, passed an order to the following effect:-
"As the impugned order in the above writ petitions reads that the petitioners have already been terminated from service, interim stay or interim injunction of reversion cannot be granted at this stage. There shall be an order of interim stay of termination of service of the petitioners."
20. Aggrieved by the fact that a stay of reversion was not granted, the said Rachel Deva Anbu Nesammal has come up with the writ appeals W.A.(MD) Nos.140 and 141 of 2009 against that portion of the order dated 2.4.2009, passed by the learned Judge in M.P.(MD) Nos.1 and 2 of 2009 in W.P.(MD) No.2646 of 2009.
21. At the outset, we do not think that the learned Judge is wrong in refusing to grant an interim stay of or injunction against reversion. As a matter of fact, the learned Judge has protected the interest of the appellant by granting interim stay of termination and rightly so, since the appellant was not facing disciplinary proceedings. She was the beneficiary of an order of promotion granted by a set of persons, claiming to be office bearers. Their position itself got uprooted by the order passed in the Civil Revision Petitions and the management has reversed the order of promotion. The question as to whether such reversal was right or wrong, can be gone into in the writ petition. If the appellant succeeds in the writ petition, she would certainly be restored to her promoted post. If she fails in the writ petition, the salary paid to her in the promoted post cannot be recovered, if a stay of reversion is granted. Therefore, the learned Judge was right in refusing to grant a stay of reversion, while protecting the interest of the appellant by granting stay of termination. In such circumstances, we see no ground to entertain the writ appeals W.A.(MD) Nos.140 and 141of 2009 and hence they are dismissed.
WRIT APPEALS FILED BY SCHOOL TEACHERS AGAINST FINAL ORDERS:
W.A.(MD) No.245 of 2009:
22. This writ appeal is filed by one D.Jebamani Pearlin, challenging the dismissal of her writ petition W.P.(MD) No.3205 of 2009.
23. She was originally appointed as Assistant Teacher on regular basis in TDTA Middle School, Zion Hill, Tirunelveli District and transferred to various schools from time to time. When she was working as Assistant Teacher in TDTA Middle School at Parappadi, she was promoted and posted as Headmistress of TDTA Primary School, Levingipuram, by an order dated 11.8.2008, issued by the Manager. She joined duty on 12.8.2008.
24. A show cause notice dated 5.11.2008 was issued to her, terming her promotion by the then Manager as illegal. She submitted her explanation, but she was asked to appear for an enquiry on 15.11.2008. Subsequently, a three member enquiry Committee was constituted. By a letter dated 5.1.2009, the Committee directed her to attend the enquiry on 13.1.2009. Since she did not attend the enquiry, but sought postponement, she was set ex parte and a report was submitted. On the basis of the report, an order dated 24.3.2009 was passed, reverting her as Assistant Teacher of the Middle School and putting her on notice that her services will be deemed to have been terminated if she failed to join duty within 7 days.
25. As against the said order, D.Jebamani Pearlin filed W.P.No.3205 of 2009. But the same was dismissed by the learned Judge by a common order dated 28.5.2009 passed in a batch of writ petitions. Aggrieved by the said order, she is on appeal in W.A.(MD) No.245 of 2009.
26. It is seen from the order of promotion dated 11.8.2008 that the appellant was promoted as Primary School Headmistress by Rev. A.Jacob Chelliah, claiming himself to be the Manager of TDTA Primary and Middle Schools. On 5.11.2008, a show cause notice was issued by Rev. A.Peter Devadoss, terming the promotion as illegal on the ground that Rev. A.Jacob Chelliah was removed from the post of Manager on 5.2.2008 itself and Rev. A.Peter Devadoss was appointed in his place. Following the show cause notice, a three member enquiry Committee was constituted and they issued a notice on 5.1.2009, calling upon the appellant to appear for the enquiry on 13.1.2009. Since she did not appear for the enquiry, the Committee examined three witnesses and took into account 16 documents and held the order of promotion to be illegal and issued by a person without authority. By a letter dated 17.1.2009, the enquiry report was forwarded to the appellant and her objections were called for. Thereafter, the entire enquiry proceedings were placed before the Standing Committee for Elementary Education (Internal Committee of the Diocese). Based upon a resolution passed by the Committee, the Manager of TDTA Primary and Middle Schools passed the order dated 24.3.2009 (impugned in the writ petition), cancelling the promotion.
27. Therefore, it is clear that the respondents followed the procedure established by law, before cancelling the promotion of the appellant. As a Court exercising jurisdiction under Article 226, it was not open to the learned Judge to resolve disputed questions of fact and find out whether the cancellation of promotion was justified on facts or not. Therefore, the dismissal of the writ petition by the learned Judge cannot be found fault with. Hence, W.A.(MD) No.245 of 2009 is dismissed.
W.A.(MD) No.249 of 2009:
28. This writ appeal is filed by one J.Kamala Sironmani, challenging the dismissal of her writ petition W.P.(MD) No.2591 of 2009.
29. She was originally appointed as Secondary Grade Assistant on 27.6.1996 in one of the corporate schools run by CSI Diocese. By an order dated 12.8.2008, she was promoted by the Manager as Headmistress of TDTA Primary School. After the disposal of the Civil Revision Petition on 18.8.2008, arising out of the election dispute, an attempt was made to interfere with her functioning as Headmistress.
30. Therefore, she filed a writ petition in W.P.(MD) No.8135 of 2008, seeking a Writ of Mandamus, to direct the District Elementary Educational Officer to approve her appointment as Headmistress and to forbear the respondent from interfering with her continuance as Headmistress. In that writ petition, the Manager and Correspondent of TDTA Primary and Middle Schools, filed a counter undertaking not to disturb her, but reserving liberty to proceed in accordance with law for the cancellation of the promotion order dated 11.8.2008.
31. Thereafter, she was issued with a show cause notice dated 5.11.2008, followed by an enquiry by a three member Committee. Ultimately, an order dated 24.3.2009 was passed, reverting her and threatening her of automatic termination of services, if she failed to join duty in the reverted post within 7 days. Challenging the said order, she filed W.P.(MD) No.2591 of 2009, but the same was dismissed by the learned Judge by a common order dated 28.5.2009 passed in a batch of writ petitions. It is against the said order that she has filed W.A.(MD) No.249 of 2009.
32. A perusal of the above facts would show that the facts in W.A.(MD) No. 249 of 2009 are identical to the facts in W.A.(MD) No.245 of 2009. Even in this case, the management issued a show cause notice dated 5.11.2008, constituted a three member enquiry Committee, had an enquiry conducted by them, forwarded the copy of the enquiry report to the appellant, placed the entire proceedings before the Standing Committee and thereafter passed the order of reversion on 24.3.2009. Therefore, no exception can be taken to the dismissal of the writ petition, by the learned Judge.
33. It was contended by Mr.Joseph Thatheus Jerome, learned counsel for the respondents that this appellant had already filed a suit on the very same subject matter and that therefore the writ petition deserved to be dismissed. But we do not think that the same could be a reason for the dismissal of the writ petition. It is true that the appellant J.Kamala Sironmani was one of the plaintiffs in a suit O.S.No.18 of 2009 filed on the file of the Sub Court, Valliyoor. It appears that the prayer in the main suit in O.S.No.18 of 2009 was for a declaration that Rev. A.Jacob Chelliah was the Manager of TDTA Primary and Middle Schools as on 11.8.2008 and for a permanent injunction to restrain the defendants from interfering with her right to function as Headmistress. Pending suit, the appellant also filed I.A.No.61 of 2009, seeking an interim order of injunction. The suit had been instituted in February 2009. But since there was no interim order, the respondents proceeded with the enquiry and passed an order of reversion on 24.3.2009. It is against this subsequent event that the appellant came up with the writ petition W.P.(MD) No.2591 of 2009, out of which the above appeal arose. Therefore, we do not treat the filing of the suit as a justification for the dismissal of the writ petition, though we have found that there was enough justification otherwise, for the dismissal of the writ petition. Accordingly, the writ appeal W.A.(MD) No.249 of 2009 is dismissed. W.A.(MD) No.253 of 2009:
34. This writ appeal is filed by one A.Auston Jeyadoss, challenging the dismissal of his writ petition W.P.(MD) No.8051 of 2008.
35. The appellant Auston Jeyadoss was originally appointed as Physical Education Teacher on 1.8.1997 in West Tirunelveli Higher Secondary School, Nallur. He was transferred from place to place and while working in Palayamkottai Training School, he was promoted as Physical Director by an order dated 11.8.2008 passed by the Manager, in the vacancy caused due to the retirement of the regular incumbent on 1.6.2008.
36. But after the disposal of the Civil Revision Petitions on 18.8.2008, the Manager of TDTA Higher Secondary Schools issued a letter dated 30.8.2008, terming the promotion as illegal. It was followed by an order dated 1.9.2008, passed by the Correspondent, asking the appellant not to enter the school campus.
37. Therefore, challenging the said orders of the Manager dated 30.8.2008 and the Correspondent, dated 1.9.2008, the appellant filed a writ petition in WP(MD) No.8051 of 2008. This writ petition was dismissed by the common order dated 28.5.2009. Aggrieved by the dismissal of the writ petition, he is on appeal in W.A.(MD) No.253 of 2009.
38. Though by the order impugned in the writ petition, the Manager of the school cancelled the promotion granted to the appellant, such cancellation was done without notice to the appellant and without giving him an opportunity. In respect of two teachers by name D.Jebamani Pearlin and J.Kamala Sironmani, identical orders of promotion were cancelled, only after issuing a show cause notice and after conducting an enquiry by a three member Committee. The allegations made in respect of the promotion of those two teachers, are also just the same. The respondents have adduced no reason as to why no such opportunity was provided to the appellant. They have not even explained as to whether, and if so how the case of the appellant stands on a different footing than that of those two teachers. Therefore, the impugned orders dated 30.8.2008 and 1.9.2008, by which the promotion granted to the appellant was cancelled, are liable to be set aside and the order dismissing the writ petition cannot be sustained. Hence, the writ appeal W.A.(MD) No.253 of 2009 is allowed and the order of the learned Judge in W.P.(MD) No.8051 of 2008 is set aside and the writ petition is allowed.
W.A.(MD) No.254 of 2009:
39. This writ appeal is filed by one A.M.Sankey John, challenging the dismissal of his writ petition W.P.(MD) No.8132 of 2008.
40. The appellant A.M.Sankey John was originally appointed as Librarian on 9.6.1998 in Schaffter Higher Secondary School, Tirunelveli. He was promoted as Post Graduate Assistant by an order dated 11.8.2008 passed by the Manager, in the vacancy caused due to the retirement of the regular incumbent by name one M.Manonmani. He joined duty on 12.8.2008.
41. But after the disposal of the Civil Revision Petitions on 18.8.2008, a group of persons entered the school on 25.8.2008 and asked him to leave the school. Therefore he gave a telegram on 25.8.2008. But by an order dated 1.9.2008, passed by the Correspondent, the appellant was directed not to enter the school campus.
42. Therefore, challenging the said order of the Correspondent, dated 1.9.2008, the appellant filed a writ petition in WP(MD) No.8132 of 2008. This writ petition was dismissed by the common order dated 28.5.2009. Aggrieved by the dismissal of the writ petition, he is on appeal in W.A.(MD) No.254 of 2009.
43. Though by the order impugned in the writ petition, the Correspondent of the school directed the appellant not to enter the school campus on the ground that the Manager had cancelled the promotion granted to the appellant, such cancellation was done without notice to the appellant and without giving him an opportunity. In respect of two teachers by name D.Jebamani Pearlin and J.Kamala Sironmani, identical orders of promotion were cancelled, only after issuing a show cause notice and after conducting an enquiry by a three member Committee. The allegations made in respect of the promotion of those two teachers, are also just the same. The respondents have adduced no reason as to why no such opportunity was provided to the appellant. They have not even explained as to whether, and if so how the case of the appellant stands on a different footing than that of those two teachers. Therefore, the impugned order dated 1.9.2008 is liable to be set aside and the order dismissing the writ petition cannot be sustained. Hence, the writ appeal W.A.(MD) No.254 of 2009 is allowed and the order of the learned Judge in W.P.(MD) No.8132 of 2008 is set aside and the writ petition is allowed.
W.A.(MD) No.375 of 2009:
44. This writ appeal is filed by one Suganthi Selvakumari, challenging the dismissal of her writ petition W.P.(MD) No.8121 of 2008.
45. She was appointed as B.T. Assistant (Tamil) on 12.8.2008 in Schaffter Higher Secondary School Tirunelveli in the vacancy caused due to the retirement of one Dharmaraj Daniel. The order of appointment was also sent for approval of the competent authority.
46. But after the disposal of the Civil Revision Petitions on 18.8.2008, a group of persons entered the school on 25.8.2008 and asked her to leave the school. Therefore she gave representations to the competent authorities. But by an order dated 1.9.2008, passed by the Correspondent, the appellant was directed not to enter the school campus.
47. Therefore, challenging the said order of the Correspondent, dated 1.9.2008, the appellant filed a writ petition in WP(MD) No.8121 of 2008. This writ petition was dismissed by the common order dated 28.5.2009. Aggrieved by the dismissal of the writ petition, she is on appeal in W.A.(MD) No.375 of 2009.
48. Though by the order impugned in the writ petition, the Correspondent of the school directed the appellant not to enter the campus on the ground that the Manager had cancelled the appointment granted to the appellant, such cancellation was done without notice to the appellant and without giving her an opportunity. In respect of two teachers by name D.Jebamani Pearlin and J.Kamala Sironmani, even orders of promotion were cancelled, only after issuing a show cause notice and after conducting an enquiry by a three member Committee. The allegations made in respect of the promotion of those two teachers, are also just the same. The respondents have adduced no reason as to why no such opportunity was provided to the appellant. They have not even explained as to whether, and if so how the case of the appellant stands on a different footing than that of those two teachers. Therefore, the impugned order dated 1.9.2008 is liable to be set aside and the order dismissing the writ petition cannot be sustained. Hence, the writ appeal W.A.(MD) No.375 of 2009 is allowed and the order of the learned Judge in W.P.(MD) No.8121 of 2008 is set aside and the writ petition is allowed.
W.A.(MD) No.376 of 2009:
49. This writ appeal is filed by one S.Arun Arockiaraj, challenging the dismissal of his writ petition W.P.(MD) No.8131 of 2008.
50. He was appointed originally as a teacher in English as a management staff in the year 1997. Therefore, when a regular vacancy arose, he was appointed as Junior Grade B.T. Assistant (English) on 12.8.2008 in St. Johns Higher Secondary School, Palayamkottai in the vacancy caused due to the retirement of one Mr.J.Gnanaraj Samuel. The order of appointment was also sent for approval of the competent authority.
51. But after the disposal of the Civil Revision Petitions on 18.8.2008, a group of persons entered the school on 25.8.2008 and asked him to leave the school. Therefore, the appellant filed a writ petition in WP(MD) No.8131 of 2008, seeking a Writ of Mandamus to direct the District Educational Officer to approve his appointment and to forbear the management from interfering with his appointment. This writ petition was dismissed by the common order dated 28.5.2009. Aggrieved by the dismissal of the writ petition, he is on appeal in W.A.(MD) No.376 of 2009.
52. The appellant in this case has been in employment in one of the institutions run by the Tinnevelly Diocesan Trust Association, from 1997 as a management staff. By the order of appointment dated 12.8.2008, the appellant was only brought into a sanctioned post against a vacancy created due to the retirement of the regular incumbent. Even if the said order of appointment is considered by the management to be illegal, after the disposal of the civil revision petitions, the management ought to have initiated proceedings for the termination of such appointment, in accordance with law.
53. Even in respect of two teachers by name D.Jebamani Pearlin and J.Kamala Sironmani, who were allegedly promoted by illegal orders, the management chose to initiate proceedings and conduct an enquiry before cancelling those promotions. While so, an order of appointment cannot be cancelled verbally, as the management has allegedly done in this case.
54. The very averment of the appellant in the writ petition was that on 25.8.2008, a group of persons asked her to leave the school, never to re-enter. In other words, not even an order of termination was passed. This averment was not denied by the respondent-management by filing a counter. But unfortunately, the writ petition got clubbed along with the batch of cases. The cases constituting the batch did not form a homogenous class. The cases fell under different categories, which we have indicated in paragraph-7 above. Since the learned Judge did not segregate the cases into different classes, the omission of the respondents to file counter in some of the cases, was not noted. In the absence of a counter, the allegation of the appellant that his written order of appointment dated 12.8.2008 was sought to be annulled verbally on 25.8.2008, has to be accepted.
55. There is one more reason for us to come to this conclusion. The respondents themselves have adopted different methods for terminating the appointments and cancelling the promotions, allegedly made illegally. While in some cases, the management had chosen to issue notices and conduct an enquiry, before cancelling the promotions, they did not do so in other cases. Therefore, we have no alternative except to conclude that the written order of appointment dated 12.8.2008 issued to the appellant was sought to be set at naught verbally on 25.8.2008. Such an act is illegal and violative of the principles of natural justice and hence the writ petition deserves to be allowed. Therefore, the writ appeal W.A.(MD) No.376 of 2009 is allowed, the order of the learned Judge in W.P.(MD) No. 8131 of 2008 is set aside and the writ petition is allowed. W.A.(MD) No.377 of 2009:
56. This writ appeal is filed by one J.Ruby Sujatha, challenging the dismissal of her writ petition W.P.(MD) No.8052 of 2008.
57. She was originally appointed as Tamil Pandit in TDTA High School, Melaseval, as management staff for a consolidated salary. After she put in 5 years of service, she was considered for regular appointment and by an order dated 12.8.2008, she was appointed as a Tamil Pandit in the vacancy caused due to the retirement of the regular incumbent on 1.6.2008. She joined duty and she also went for Refresher Training on 25.8.2008 and 26.8.2008.
58. But after the disposal of the Civil Revision Petitions on 18.8.2008, the Manager of TDTA Higher Secondary School issued an order dated 30.8.2008, terming the appointment as illegal. A consequential order dated 1.9.2008 was passed by the Correspondent, asking the appellant not to enter the school campus.
59. Aggrieved by the above orders of the Manager and the Correspondent, dated 30.8.2008 and 1.9.2008 respectively, she filed W.P.(MD) No.8052 of 2008. It was dismissed by a common order dated 28.5.2009, passed in a batch of writ petitions and the appellant is on appeal in W.A.(MD) No.377 of 2009.
60. The appellant was in the employment of TDTA High School, Melaseval, as a Tamil Pandit and was in employment as a management staff for 5 years. Therefore when a vacancy arose against a sanctioned post, she was appointed by order dated 12.8.2008. It is this order that was sought to be cancelled on the ground that the appointment was illegal.
61. But before cancelling the appointment, on the ground that it was illegal, the management did not issue any notice and provide any opportunity to the appellant. Even in respect of two teachers by name D.Jebamani Pearlin and J. Kamala Sironmani, who were allegedly promoted by illegal orders, the management chose to initiate proceedings and conduct an enquiry before cancelling those promotions. While so, an order of appointment cannot be cancelled verbally, as the management has allegedly done in this case.
62. We are conscious of the fact that all the appointments or promotions made during the period July-August 2008 were cancelled by the respondents, on the basis of the finding recorded in the civil revision petitions that a fraud was perpetrated by a group of persons, who had approached the Civil Court in O.S.No.2898 of 2008. Since fraud vitiates all solemn acts, it is the stand of the respondents that all the appointments and promotions were liable to be cancelled, even without any enquiry.
63. But unfortunately for the respondents, they have not maintained the very same stand throughout. In the case of two teachers viz., D.Jebamani Pearlin and J.Kamala Sironmani, who were also the beneficiaries of similar orders of promotion, the respondent-management issued notices, conducted an enquiry by a three member Committee and passed orders cancelling the promotions. Therefore there is no way the respondents could be permitted to adopt a different yardstick in respect of the other set of individuals, similarly placed.
64. Moreover, a victim of fraud cannot be placed on the same pedestal as the perpetrator of fraud, merely because he reaped a benefit. Whether the teachers who gained promotions or appointments were also perpetrators of fraud along with those who made the appointments, is a disputed question, which could have come out only in an enquiry. This is why, the respondents themselves agreed to conduct an enquiry in respect of some teachers and accordingly, conducted enquiries and passed orders. We have not upset those orders.
65. Therefore, we hold that the writ appeal W.A.(MD) No.377 of 2009 also deserves to be allowed. Accordingly, it is allowed and the order of dismissal of the writ petition W.P.(MD) No.8052 of 2008 is set aside and the writ petition is allowed.
WRIT APPEALS FILED BY 2 PERSONS STAKING RIVAL CLAIMS TO THE POST OF SECRETARY OF COLLEGE COMMITTEE:
W.A.(MD) Nos.270 and 271 of 2009:
66. As stated in the preamble, in the suit O.S.No.2898 of 2008, filed by a group of persons, the City Civil Court originally granted an ex parte order of status quo on 30.4.2008 in I.A.No.6990 of 2008. Subsequently, this status quo order was modified by an order dated 21.7.2008 to have retrospective effect (status quo ante) from 21.12.2007.
67. Based upon the said order of the City Civil Court, the Director of Collegiate Education issued proceedings bearing RC No.19994/F4/2008 dated 31.7.2008, by which he allowed Mr.A.D.J.C.Thinakar to continue as Secretary of Sarah Tucker College and also allowed Dr.D.Ranjan Sundarakumar to continue as Secretary of St. John's College, Palayamkottai.
68. The said order of the Director of Collegiate Education, dated 31.7.2008, was challenged by one D.Vedanayagam, in W.P.(MD) No.8014 of 2008. In that writ petition, Dr.Ranjan Sundarakumar was impleaded as the third respondent.
69. When the above writ petition W.P.(MD) No.8014 of 2008 filed by D.Vedanayagam was pending, the Civil Revision Petitions arising out of the interim orders passed by the City Civil Court, were allowed by the High Court by order dated 18.8.2008. Consequently, the Director of Collegiate Education passed an order dated 29.8.2008, cancelling his earlier order dated 31.7.2008, by which he allowed Dr.Ranjan Sundarakumar to continue as Secretary. Therefore, aggrieved by this order of the Director dated 29.8.2008, Dr.Ranjan Sundarakumar filed W.P.(MD) No.10196 of 2008.
70. By the common order passed on 28.5.2009 in the batch of writ petitions, the learned Judge allowed the writ petition W.P.(MD) No.8014 of 2008 filed by D.Vedanayagam and dismissed the writ petition W.P.(MD) No. 10196 of 2008. Therefore, Dr.Ranjan Sundarakumar has come up with these writ appeals viz., W.A.(MD) Nos.270 and 271 of 2009, challenging the allowing of W.P.(MD) No.8014 of 2008 and the dismissal of W.P.(MD) No.10196 of 2008.
71. These two writ appeals, revolve around (i) the proceedings of the Director of Collegiate Education, dated 31.7.2008 allowing Dr.D.Ranjan Sundarakumar to continue as Secretary of St. John's College and (ii) the subsequent proceedings of the Director of Collegiate Education, dated 29.8.2008 cancelling the previous order and permitting D.Vedanayagam to continue as Secretary of St. John's College. While the first order dated 31.7.2008 was in pursuance of the order of "status quo ante" granted by the City Civil Court in O.S.No.2898 of 2008, the subsequent order dated 29.8.2008 was in pursuance of the order passed by this Court in civil revision petitions. Since the order passed in the civil revision petitions has attained finality, with the withdrawal of the special leave petitions, the second order of the Director of Collegiate Education dated 29.8.2008 cannot really be found fault with. Therefore, the dismissal of the writ petition filed by Dr.D.Ranjan Sundarakumar and the allowing of the writ petition filed by D.Vedanayagam, do not suffer from any infirmities.
72. It is seen from the first order dated 31.7.2008 passed by the Director of Collegiate Education that Mr.A.D.J.C.Thinakar and Dr.D.Ranjan Sundarakumar were allowed to function as Secretaries respectively of Sarah Tucker College and St. John's College, solely on the basis of the order of status quo ante granted by the Civil Civil Court in O.S.No.2898 of 2008. These two persons Mr.A.D.J.C.Thinakar and Dr.D.Ranjan Sundarakumar, were plaintiffs in the suit O.S.No.2898 of 2008. A finding was recorded by a learned Judge of this Court in the civil revision petitions C.R.P.(PD) Nos.2527 to 2529 of 2008 batch that the plaintiffs in O.S.No.2898 of 2008 played a fraud upon the City Civil Court and obtained the orders of status quo ante. Once it is found that they were guilty of playing fraud upon Court, they cannot be permitted to retain the benefit of a consequential order passed by the Director of Collegiate Education on the basis of the order of status quo ante. Therefore, the learned Judge was right in allowing the writ petition of D.Vedanayagam and dismissing the writ petition of Dr.D.Ranjan Sundarakumar. Consequently, we find no reason to interfere with that portion of the order. Accordingly, W.A.(MD) Nos.270 and 271 of 2009 are dismissed.
WRIT APPEALS FILED BY 22 COLLEGE TEACHERS:
W.A.(MD) Nos.272 to 276, 279 to 286, 313 to 315, 327 to 329 and 378 to 380 of 2009:
73. Since the basic facts leading to the filing of the writ petitions and the writ appeals are identical in these 22 writ appeals, they are presented in the form of a tabular statement as follows:-
Writ Appeal and Name Appointed as Appointed in Writ Petition Nos.
W.A.(MD) 272 of 2009 J.Rani Novalina Julius Lecturer in Mathematics St. John's College, (WP(MD) No.10677 Palayamkottai.
of 2008) W.A.(MD)273 of 2009 V.Kavitha Elzie Lecturer in Tamil Sarah Tucker College, (WP(MD) No.10678 Tirunelveli. of 2008) W.A.(MD)274 of 2009 Dr.S.Wilson Lecturer in Botany St. John's College, (WP(MD) No.10679 Palayamkottai. of 2008) W.A.(MD)275 of 2009 G.Anjeline Mary Lecturer in Tamil St. John's College, (WP(MD) No.10724 Palayamkottai. of 2008) W.A.(MD)276 of 2009 P.Rachel Annie Lecturer in English Sarah Tucker College, (WP(MD) No.10725 Kirupanidhi Tirunelveli. of 2008) W.A.(MD)279 of 2009 S.Sophia Christina Lecturer in English St. John's College, (WP(MD) No.10618 Palayamkottai. of 2008) W.A.(MD)280 of 2009 SV.Kernaph Elizabeth Lecturer Sarah Tucker College, (WP(MD) No.10732 in Mathematics Tirunelveli. of 2008) W.A.(MD)281 of 2009 P.Shanthi Lecturer in Tamil St.John's College, (WP(MD) No.10733 Palayamkottai. of 2008) W.A.(MD)282 of 2009 N.Thanga Kavila Lecturer in Physics St.John's College, (WP(MD) No.10734 Palayamkottai. of 2008) W.A.(MD)283 of 2009 P.Pushpa Bai Lecturer in Botany St.John's College, (WP(MD) No.10735 Palayamkottai. of 2008) W.A.(MD)284 of 2009 C.Sahila Angel Lecturer in Zoology Sarah Tucker College, (WP(MD) No.10736 Tirunelveli. of 2008) W.A.(MD)285 of 2009 Y.Nesarani Lecturer in Economics Sarah Tucker College, (WP(MD) No.10737 Tirunelveli. of 2008) W.A.(MD)286 of 2009 SG.Geetha Ranjitha Lecturer in Tamil St. John's College, (WP(MD) No.10738 Packiam Palayamkottai. of 2008) W.A.(MD)313 of 2009 Mrs.J.Susan Ezhil Lecturer in Tamil Sarah Tucker College, (WP(MD) No.10675 Malar Tirunelveli. of 2008) W.A.(MD)314 of 2009 Mrs.I.Annathai Lecturer in Tamil Sarah Tucker College, (WP(MD) No.10676 Tirunelveli. of 2008) W.A.(MD)315 of 2009 Ms.C.Rosy Lecturer in English Sarah Tucker College, (WP(MD) No.10914 Tirunelveli. of 2008) W.A.(MD)327 of 2009 P.Suresh Kumar Lecturer in Economics St. John's College, (WP(MD) No.10699 Palayamkottai. of 2008) W.A.(MD)328 of 2009 D.Imanuel Prabin Lecturer in Economics St. John's College, (WP(MD) No.10701 Palayamkottai. of 2008) W.A.(MD)329 of 2009 J.Martin Jeyaprakash Lecturer in History St. John's College, (WP(MD) No.10859 Palayamkottai. of 2008) W.A.(MD)378 of 2009 S.Stalin Kamaraj Lecturer in Economics St. John's College, (WP(MD) No.10680 Palayamkottai. of 2008) W.A.(MD)379 of 2009 D.Mabel Ahila Lecturer in History St. John's College, (WP(MD) No.10700 Palayamkottai. of 2008)
W.A.(MD)380 of 2009 Mrs.A.Felcy Navajothy Lecturer in Physics St. John's College, (WP(MD) No.10698 Palayamkottai.
of 2008)
74. The appellants named in the second column of the above table, were appointed as Lecturers in various disciplines, mentioned in column No.3, in the Colleges mentioned in column No.4 of the above table. All those appointments were made by the Secretaries of the respective Colleges, by orders dated 11.8.2008. By two separate proceedings bearing No.MSU/CD/QA/STC/2008 dated 12.8.2008, the Registrar of the Manonmaniam Sundaranar University, to which the above two Colleges are affiliated, approved the qualifications of the above appellants for appointment to the above posts. Therefore, approval for the appointments was also sought from the competent authority.
75. However, after the disposal of the Civil Revision Petitions on 18.8.2008, an order dated 29.8.2008 was issued by the Director of Collegiate Education. By this order, Mr.G.Jebarajan was allowed to function as Secretary of Sarah Tucker College (in the place of A.D.J.C.Thinakar) and Mr.D.Vedanayagam was allowed to function as Secretary of St. John's College (in the place of Dr.D.Ranjan Sundarakumar).
76. Thereafter, these Secretaries viz., G.Jebarajan and D.Vedanayagam issued individual letters to the appellants herein. All these letters were dated 17.11.2008 and were stereotyped. By these letters, the Secretaries of these two Colleges termed the appointments of the appellants as illegal and brought forth by collusion. Consequently, the appellants herein were sought to be discharged by the said orders dated 17.11.2008 on the ground that the appellants being probationers and their appointments being in contravention, they were liable to be discharged. However, the orders dated 17.11.2008 also indicated that since the Diocese had already issued paper publications inviting applications for appointments, the applications of the appellants herein would also be considered in accordance with law.
77. Challenging the said orders dated 17.11.2008, discharging them from service, the appellants herein filed the writ petitions indicated in column No.1 of the above table. But those writ petitions were also dismissed by the learned Judge by the common order passed in the batch on 28.5.2009 and the appellants have come up with the above appeals.
78. The contents of the orders dated 17.11.2008, issued individually to the appellants in W.A.(MD)Nos.272 to 276, 279 to 286, 313 to 315, 327 to 329 and 378 to 380 of 2009 by the Secretaries of Sarah Tucker College and St. John's College, are common. Hence one of them is reproduced, before we proceed to test their validity:-
"The Diocese has called for applications for appointment of lecturers post through paper notifications in Dhinaharan dated 8.8.2008 and you had not applied for appointment vide through the paper notifications (Notification dated 31.7.2008 Dhinakaran, 8.8.2008 Dhinakaran, 9.8.2008 Dhinakaran and 10.8.2008 Dhinamalar Enclosed).
As per the notification and as you have not applied for appointment for the post of lecturer in Tamil, you could not be considered for appointment. However you would appear to have colluded with one Mr.ADJC Thinahar who had claimed himself to be the Secretary of Sarah Tucker College, Perumalpuram and obtained a fictitious order of appointment dated 11.8.2008 (Copy enclosed). The said Mr.ADJC Thinahar has filed a suit in O.S.2898 of 2008 before the City Civil Court, Chennai and I.A. No.9666 of 2008 which has been disposed by the Hon'ble High Court in CRP (PD)Nos.2527, 2528, 2529, 2601 and 2602 of 2008 dated 18.8.2008 which has nullified all actions done by the said Mr.ADJC Thinahar (Order copy enclosed).
However, the Director of Collegiate Education approved Mr.ADJC Thinahar as Secretary of College by its order dated 31.7.2008 and had recalled the said order by its PROCEEDINGS RC No.19994 (F4) 2008 dated 29.8.2008 on the basis of Hon'ble High Court order in CRP(PD) Nos.2527, 2528, 2529, 2601 and 2602 of 2008 dated 18.8.2008.
On a perusal of your illegal appointment order, the same is an order of appointment on probation passed by an unauthorized person having no jurisdiction to do so.
Your very entry into service on Probation on 11.8.2008 is in contradiction to your application for employment. The same is also one made by a person who has no jurisdiction to do so.
In the above circumstances, you are being a probationer and your service itself being in contravention to your own application your service is hereby discharged with effect from the date of this order.
You will be considered for appointment by the Board in consonance with the paper notification and your application in accordance with law. The date of interview will be intimated to you in due course. Appeal against this order lies to the Governing Board as per the Chapter VI Rule 6 of our Diocesan Constitution."
79. All the orders impugned in the batch of 22 writ petitions (out of which the present writ appeals arise), are identically worded. A perusal of these orders shows -
(a) that they were termed as orders of discharge of the appellants from service;
(b) that they described the appellants as probationers;
(c) that they termed the orders of appointments of the appellants as fictitious and also a product of collusion with the Secretaries, who were subsequently displaced after the orders passed in the civil revision petitions;
(d) that they termed the orders of appointments as illegal and issued by unauthorized persons having no jurisdiction to do so; and
(e) that these impugned orders were passed without notice to the appellants.
80. Thus, even while branding the impugned orders as orders of discharge of probationers, the Secretaries of the two Colleges indicated that they were not orders of discharge simplicitor, but were actually punitive in nature. The very basis of the impugned orders is that the appointments of the appellants were illegal and that the orders of appointments were fictitious and actually brought forth by collusion. Therefore it is fundamental that such orders should not have been passed without any notice and without affording any opportunity to the appellants. As held by the Apex Court in Nehru Yuva Kendra Sangathan vs. Mehbub Alam Laskar {2008 (2) SCC 479}, the termination of probation for unsatisfactory performance may be justified. But when the foundation for such an order is not unsatisfactory performance but something else, an opportunity of hearing to the employee is imperative. In Jaswant Singh Pratab Singh Jadeja vs. Rajkot Municipal Corporation {2007 (10) SCC 71}, the Supreme Court held that the termination of services of a person by an order purporting to discharge him simplicitor, cannot be accepted if it was stigmatic in nature. After all, there is no allegation that the appellants were not even qualified either as per the UGC Regulations or as per the provisions of the Tamil Nadu Private Colleges (Regulation) Act and the Rules framed thereunder. Therefore, the orders of discharge were violative of the principles of natural justice.
81. In order to over come the issue of violation of the principles of natural justice, it was contended by Mr.Joseph Thatheus Jerome, learned counsel for the management that since the appointments were brought forth by fraud and collusion, the appellants cannot retain the benefit of such fraud, as fraud vitiates all solemn acts. The learned counsel also relied upon several decisions of the Apex Court to impress upon the point that fraud vitiates all solemn acts.
82. There can be no second view on the principle of law that fraud vitiates all solemn acts. It is also true that a learned Judge of this Court recorded a finding in his order dated 18.8.2008 in the revision petitions CRP (PD) Nos.2527 to 2529 of 2008 batch of cases that the plaintiffs in O.S.No.2898 of 2008 had played a fraud upon the Civil Court and obtained orders of status quo ante. The special leave petitions filed against the orders passed in the revision petitions, have now been withdrawn and hence those findings stand.
83. But there are two things which the management has failed to take note of viz., (i) that the main suit O.S.No.2898 of 2008 is still pending and the election dispute is bound to be decided finally only in the suit and (ii) that the appellants herein were not parties to the suit or the civil revision petitions. Therefore, the question as to whether all acts carried out by those in management during the interregnum period, including the appointments made, would automatically become illegal, is a moot question. As a matter of fact, the Director of Collegiate Education, had recognised two persons as Secretaries of the two Colleges and the Manonmaniam Sundaranar University conveyed the approval of the qualifications of the appellants for appointment to these posts. The salary payable to all the teaching and non teaching staff, was claimed by those functioning as Secretaries at that time. Therefore, it is not as though all acts including the routine acts of administration carried out by those functioning as Secretaries, got annulled by the orders passed in the civil revision petitions.
84. Moreover, the question as to whether the appellants were merely the victims of fraud or whether they were co-perpetrators, has not been examined by the management, before issuing the orders dated 17.11.2008, discharging them from service. Though a vague allegation is made in the orders of discharge dated 17.11.2008 that the appellants "appear to have colluded" and "obtained a fictitious order of appointment", the basis on which the Secretaries came to such a conclusion, is not disclosed. The only basis for such conclusion, disclosed in the order, is the finding recorded by this Court in the civil revision petitions.
85. To test whether the findings recorded in the civil revision petitions could have provided the sole basis for discharging the services of the appellants, let us now see the findings recorded in the order of the learned Judge in paragraphs 49 and 50 of the judgment in the civil revision petitions:-
"49. The person who comes to Court, must come with clean hands for seeking any relief. But, the respondents/plaintiffs have suppressed the material facts, adopted method of forum shopping and have played fraud on the Court below, apart from non-joinder of necessary parties in the suit. Playing fraud on the Court is highly condemnable, since the same is against administration of justice. As there is substantial materials available on record to show that the respondents/plaintiffs have played fraud on the Court below and obtained the order of status quo ante, they cannot be permitted to administer the institutions, pending disposal of the suit.
50. The revision petitioners in C.R.P.(PD) Nos.2527 to 2529 of 2008, the Diocese of Tirunelveli (CSI) is admittedly headed by its Bishop at Tirunelveli and he is the Chief Election Officer, as per Chapter X of the Constitution of Diocese of Tirunelveli. As such, he has produced a certified copy of the Minutes maintained by the Diocese of Tirunelveli (CSI), wherein the names of the office bearers elected have been stated. It is seen that the revision petitioners in C.R.P.(PD) Nos.2601 and 2602 of 2008 are also stated as elected office bearers of the Diocese in the said document. Though the same cannot be taken as gospel truth by this Court, I am of the view that Exhibit R-1 cannot be construed as a fabricated document and there is no substantial materials to show that the second defendant has played any fraud on the Court, hence, this Court is of the considered view to permit the Diocese of Tirunelveli, represented by its Bishop, the revision petitioner in C.R.P.(PD) Nos.2527 to 2529 of 2008 to continue the administration with the office bearers, including the revision petitioners in C.R.P.(PD) Nos.2601 and 2602 of 2008, holding their respective posts, as per Exhibit R-1, till the disposal of the suit. Connected miscellaneous petitions are closed. No order as to costs."
86. The above paragraphs which form the operative part of the order of the learned Judge in the civil revision petitions, make it clear that the Diocese of Tirunelveli represented by its Bishop was "permitted to continue the administration with the office bearers ............ till the disposal of the suit". Two things flow out of the said order viz., (i) that the Court did not decide the election dispute finally, but made an interim arrangement permitting the Bishop and those claimed by him to have been elected, to continue the administration, only till the disposal of the suit and (ii) that the Court did not set aside or annul the appointments made by the respondents in the revision petitions. Therefore, while the Secretaries who took charge in pursuance of the orders passed in the civil revision petitions, could use the order in the revision petitions as a shield, they cannot use it as a sword to strike at the appointments - (i) without having the issue finally resolved in the suit and
(ii) without affording an opportunity to the appellants to show cause.
87. The documents filed by the appellants in their writ petitions would disclose -
(a) That they were duly qualified for appointments to those posts;
(b) That their qualifications were approved by the concerned University to which those two colleges were affiliated;
(c) That the orders of appointment were also forwarded to the Director of Collegiate Education for approval;
(d) That their appointments were made against sanctioned posts;
(e) That on the date on which the orders of appointment were issued to the appellants, persons who issued those orders were recognised by the Director of Collegiate Education as Secretaries of the two colleges; and
(f) That since the two colleges are aided minority institutions, they had the freedom of choice of the candidates.
88. But without reference to the aspects indicated in the preceding paragraph, the learned Judge dismissed all the writ petitions, mainly on the basis of the finding of fraud recorded in the civil revision petitions. This, in our considered view, may not be the proper perspective, from which the plight of the appellants had to be appreciated. There can be no presumption that the appellants herein were co-conspirators along with the respondents in the civil revision petitions. No enquiry was conducted against the appellants to arrive at such a conclusion. Therefore, the orders dated 17.11.2008, by which the appellants were discharged from service, cannot be sustained.
89. Under Section 19 (1) of the Tamil Nadu Private Colleges (Regulation) Act, 1976, no teacher or other person employed in any private college shall be dismissed, removed or reduced in rank nor shall his appointment be otherwise terminated except with the prior approval of the competent authority. The respondent/management is a private minority aided institution. Therefore, prior approval of the competent authority for termination, may not be necessary. But the discharge of a probationer would still fall within the meaning of the phrase "appointment otherwise terminated".
90. Therefore, despite the fact that prior approval of the competent authority may not be necessary for termination of the services of a teacher employed in a minority institution, the requirement to hold an enquiry and to comply with the principles of natural justice, cannot be dispensed with. Rule 11 (2)(i) of the Tamil Nadu Private Colleges (Regulation) Rules, 1976, requires the Committee of every college to enter into an agreement with the teachers in Form 7-A. Paragraph 7 of the said Form 7-A mandates the College Committee to follow a procedure before dismissing, removing or reducing in rank or otherwise terminating the services of a teacher. The said paragraph reads as follows:-
"7. (a) That the college committee shall not dismiss, remove or reduce in rank or terminate the services of the said teacher without informing him/her in writing of the grounds on which they intend to take action and shall follow the following procedure before taking any final decision regarding the punishment to be imposed on him/her and giving him/her in writing reasonable time to send his/her explanation to the college committee.
(b) After considering his/her explanation the college committee shall communicate to him/her its findings and if so, desired by the said teacher conduct a personal hearing or enquiry, wherein he/she shall be given the opportunity to examine or cross-examine or any of the witnesses and also produce witnesses.
(c) After the conduct of the personal hearing or enquiry by the college committee the report of such personal hearing or enquiry shall be furnished to the said teacher and a notice shall be issued to him/her setting out the proposed punishment and he/she shall be given a reasonable time to submit the statement of defence against the proposed punishment.
(d) After the receipt of the statement of defence from him/her and after taking it into consideration, the college committee shall inform him/her in writing about its final decision."
91. Though Rule 11 (2) (i) of the Rules and Form 7-A actually speak about an agreement to be executed by a College Committee with the teachers, a minority college is not obliged to have a College Committee constituted as per the provisions of Section 11 of the Tamil Nadu Private Colleges (Regulation) Act, 1976. In other words, a minority college need not necessarily have a College Committee constituted as per Section 11 of the Act, since Section 11 itself excludes a minority college from its application.
92. But the fact that a minority college need not have a College committee constituted as per Section 11, does not mean that the procedure prescribed by paragraph 7 of Form 7-A or the principles of natural justice could also be given a go by, before dismissing, removing or otherwise terminating the services of a teacher. A similar question arose before a Division Bench of this Court in C.Masanam vs. The Chief Educational Officer, Madurai {2000 (3) MLJ 19} with respect to a minority school. The Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and the Rules framed thereunder also prescribed a similar agreement to be entered into in Form 7-A. Clause 7 of Form 7-A under the Tamil Nadu Recognised Private Schools (Regulation) Rules, contained an identical prescription as in clause 7 of Form 7-A under the Tamil Nadu Private Colleges (Regulation) Rules. The Division Bench comprising of V.S.Sirpurkar, J. and Mrs.Prabha Sridevan, J., held in that case that the procedure prescribed in clause 7 of Form 7-A had to be followed before dismissing, removing, reducing in rank or otherwise terminating the services of a teacher, even in a minority institution. It may not be open to the respondents in this case even to contend otherwise, since as pointed out earlier, they accepted this position and held an enquiry before cancelling the promotions granted to a few school teachers. Therefore, the orders impugned in the writ petitions are liable to be set aside.
93. We have one more reason for our above conclusion. It is seen from the very orders dated 17.11.2008 that the Secretaries who had assumed charge after the orders passed in the civil revision petitions, propose to make fresh appointments. If by taking advantage of the discharge of the appellants from service, the present holders of office make fresh appointments, those appointments would have to face the same fate, if the election dispute is ultimately decided against them. It will be dangerous to throw an educational institution to such vagaries. The Court cannot allow one set of victims to be replaced by another set of victims, in a continuous cross fire between two groups of persons staking a claim to the management of the educational institution.
94. In view of the above, the 22 Writ Appeals(MD) 272 to 276, 279 to 286, 313 to 315, 327 to 329 and 378 to 380 of 2009 are allowed. The order of the learned Judge dated 28.5.2009 passed in the writ petitions out of which these writ appeals arise, is set aside.
95. There is one issue which we have not chosen to decide in these writ appeals. The dispute which was the subject matter of the suit O.S.No.2898 of 2008 and the civil revision petitions CRP Nos.2527 to 2529 of 2008, related only to the election of office bearers to the Tirunelveli Diocese. But the Diocese of Tirunelveli is an unregistered body. It is one of the 21 such unregistered Dioceses, that constitute the "Church of South India", known in short as "CSI". The Church of South India Trust Association was registered under the Indian Companies Act, 1913 on 26.9.1947. It has 21 Dioceses as its constituents, one of which is the Diocese of Tirunelveli. This Diocese of Tirunelveli is not registered either under the Societies Registration Act or under the Companies Act or under any other Act.
96. On the contrary, the Tinnevelly Diocesan Trust Association was registered under the Indian Companies Act, 1913 way back on 8th December 1919 itself. Therefore it is a body corporate, having a common seal and a perpetual succession. It is this Tinnevelly Diocesan Trust Association, which manages and administers all the schools and colleges. In other words, this Tinnevelly Diocesan Trust Association, which is an incorporated company, is the "Educational Agency" within the meaning of Section 2(4)(a) of the Tamil Nadu Private Colleges (Regulation) Act, 1976 and Section 2(3)(a) of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973. Therefore, an issue was raised by some of the appellants that it is only the persons whose names are reflected in the returns filed with the Registrar of Companies, who will be entitled to initiate action for cancellation of appointments and promotions.
97. It is true that this incorporated company viz., Tinnevelly Diocesan Trust Association is not involved in the litigation in O.S.No.2898 of 2008. The subject matter of the said suit is only the election to the Diocesan Council of Tirunelveli. Therefore, to some extent, the contention of the appellants that they have become the victims of an electoral dispute in an unregistered body, is correct.
98. But unfortunately, the batch of writ petitions were disposed of even before the completion of pleadings. Therefore, we had two options viz., either to remand the matter back to the single Judge or to dispose of the writ appeals on the technical ground of violation of the principles of natural justice. We found the second option more viable, in view of the fact that the respondents themselves had considered it necessary to follow the principles of natural justice in some cases. Therefore, we have not gone into the larger question about the distinction between the unregistered body viz., Diocese of Tirunelveli and the incorporated company Tinnevelly Diocesan Trust Association and the question whether the electoral dispute in the former could have an impact on the latter. We leave it open to the appellants to raise the same if and when the respondents initiate action against them.
FINAL TALLY:
99. The writ appeals W.A.(MD) Nos.138, 139, 140, 141, 245, 249, 270 and 271 of 2009 are dismissed. The other writ appeals W.A.(MD) Nos.253, 254, 272 to 276, 279 to 286, 313 to 315, 327 to 329, 375 to 377 and 378 to 380 of 2009 are allowed. However, there will be no order as to costs.
Svn To
1.The District Elementary Educational Officer, Tirunelveli-2.
2.The Additional Assistant Elementary Educational Officer, Kalakkadu Region, Tirunelveli District.