@JUDGMENTTAG-ORDER
K. Chandru, J.@mdashThe Petitioner, who is the Correspondent of K.A.M.P. Meerania Middle School, Singampathu, Kalakad, Tirunelveli District, has filed the present writ petition seeking to challenge an order of the first Respondent, dated 19.8.2010 and the consequential order of the second Respondent, dated 26.8.2010. After setting aside the same seeks for a consequential direction to Respondents 3 and 4 to forbear them from interfering with the right of the Petitioner in discharging his duties and responsibilities as the Correspondent of the said School.
2. When the matter came up on 7.9.2010, notice was taken by the Respondents. For Respondents 1 and 2, Mr. R. Janakiramulu, learned Special Government Pleader took notice. For Respondents 3 and 4, Mr. D. Sivaraman, learned Counsel took notice. Pending filing of the counter, an order of status quo as on 7.9.2010, was granted. Thereafter, a counter affidavit was filed by third and fourth Respondents, dated 28.9.2010. With the consent of parties, the main writ petition itself was taken up for hearing.
3. Heard the arguments of Mr. Yashod Vardhan, learned Senior Counsel leading for Mr. K. Chandrasekaran, learned Counsel appearing for the Petitioner, Mr. R. Janakiramulu, learned Special Government Pleader appearing for Respondents 1 and 2 and Mr. G.R. Swaminathan, learned Counsel appearing for Respondents 3 and 4.
4. The facts leading to passing of the impugned order are as follows:
Mr. K.A. Meera Sahib and Haji K.A. Peer Mohamed, who are two brothers established an elementary school and middle school in the year 1929. The management of the school was registered as a society during the year 1947. Mr. K.A. Peer Mohammed was the Correspondent of the School from the year 1945 onwards. On 1.6.1967, the said Peer Mohammed passed away leaving behind him three daughters, i.e. Maria Misria, Subaida and Habeeba. On 10.6.1968, it was resolved that each one of the daughters will act as the Secretary for a period of three years. During the year 1983, the third Respondent had filed a suit being O.S. No. 141 of 1983 before the Sub Court, Tirunelveli against the then Correspondent Mr. M.A. Peer Mohammed seeking for permanent injunction not to interfere with her administration of schools and that he had surrendered his Correspondent ship. During the year 1984, an another suit in O.S. No. 42 of 1984 was filed by the third daughter Habeeba against the third Respondent as well as her husband O.M.A. Majid and her sister Subaida in the same Court for declaration that all sisters are entitled to act in rotation. While the suit filed by the third Respondent was decreed, the suit filed by Habeeba was dismissed by a common judgment and decree, dated 30.5.1992.
5. As against the said common judgment, two appeals were filed before the District Court, Tirunelveli in A.S. Nos. 196 and 107 of 1992. Both appeals were allowed by the District Court by a common judgment dated 31.5.1994. It was held that while the third Respondent was the Secretary of the Society, Mr. M.A. Peer Mohamed was the CorRespondent. Similar finding rendered in O.S. No. 140 of 1975 was also confirmed by an appellate court in A.S. No. 250 of 1978. Even before the registration of the management of society in the year 1947, Mr. M.A. Peer Mohamed was the CorRespondent with effect from 8.7.1945. He had acted in the same capacity even after 5.3.1981. Neither the Memorandum of Association nor the bylaws had any provision for removal of the CorRespondent. It is only the General Body or the Executive Committee which alone can pass the resolution removing the CorRespondent. It was Mr. M.A. Peer Mohamed who was discharging his duties of corRespondent. Those two sisters, i.e. third Respondent and Habeeba, have not abandoned their rights. Likewise, M.A. Peer Mohamed had not surrendered is Correspondent ship.
6. As against the findings rendered by the District Court, the aggrieved individual had preferred two Second Appeals before this Court being S.A. Nos. 298 of 1994 and 799 of 1994. Both appeals were dismissed on 28.6.1995. The findings that M.A. Peer Mohamed was acting as the CorRespondent till his death was confirmed by this Court. On 29.11.1995, the General Body of the Association appointed the Petitioner as the CorRespondent of the school. The said proposal being sent to the department, (i.e. the second Respondent District Elementary Education Officer), he recognized the Petitioner as the CorRespondent. The same fact was reaffirmed by a further order dated 10.4.1996 by the District Elementary Officer.
7. The third Respondent filed a writ petition being W.P. No. 5435 of 1996 before this Court to set aside the order, dated 10.4.1996 passed by the second Respondent and for a direction to recognize her as the CorRespondent of both schools. This Court by a judgment, dated 6.8.1996 held that the posts of Secretary and CorRespondent are two different offices. Since the third Respondent and her son the fourth Respondent have filed two suits i.e. O.S. Nos. 35 of 1996 and 528 of 1995, it was held that if they succeed in the said suits, they can also challenge the resolution of the society, dated 29.11.1995 appointing the writ Petitioner as the CorRespondent. The third Respondent had filed an appeal being W.A. No. 761 of 1996. The appeal came to be disposed of on 16.8.1996. It was held that the educational society alone can appoint the CorRespondent of the School. The order passed by the learned Judge in the writ petition was valid. Since in the suit the appointment of the CorRespondent is under challenge, unless the third and the fourth Respondents succeed, they have no right to claim the post. The suit filed by the third Respondent before the District Munsif Court, Valliyoor was transferred to the Court of District Munsif, Nanguneri and renumbered as O.S. No. 701 of 1996. The initial prayer made by her in the suit, i.e. that the third Respondent was the Secretary and the CorRespondent from 4/1995 to 3/1998 and till such time, no one can interfere with her right was amended and the new prayer was to declare that the Defendants in the suit one Subida (second daughter of K.A. Peer Mohamed) and others are not the members of the educational society.
8. In the meanwhile, the third Respondent filed a writ petition in W.P. No. 7480 of 1998 to forbear the Respondents from recognizing the appointments of Subida, Habeeba, Dawood and CorRespondent Shaffi. That writ petition was dismissed on 5.10.1998. While dismissing the writ petition, this Court had observed that unless the third and fourth Respondents succeed, they cannot dislodge the Petitioner and that the CorRespondent of the school can validly make appointments as per the provisions of the Tamil Nadu Recognized Private Schools (Regulations) Act, 1973. In the suit filed by the third and fourth Respondents, a common judgment and decree, dated 26.2.1995 was rendered.
9. The trial court found that in the suit until the society takes action against the Correspondent and terminates him, Respondents 3 and 4 being Plaintiffs cannot bring any action. The fourth Respondent is not a member of the society and he has no locus stand to question any appointment or any circular. Both suits were dismissed by a common judgment. Thereafter, Respondents 3 and 4 filed two appeals being A.S. Nos. 93 of 2004 and 94 of 1999. The lower appellate court modified the decree in A.S. No. 94 of 1996 permitted the third Respondent to assume the office of the Secretary of the society and then she can resolve the dispute as to who should be the CorRespondent of the School. But, however, the appeal filed by the fourth Respondent in A.S. No. 93 of 1994 was dismissed. As against these two orders, two second appeals were filed in S.A. Nos. 439 and 1092 of 2004. This Court by an order, dated 18.6.2005 after disposing of the appeal restored the judgment of the trial court, set aside the order of the lower appellate court and declared that the Petitioner is entitled to act as the CorRespondent with slight modifications. Review petitions were filed being R.P. Nos. 62 and 63 of 2005 and they were also dismissed on 3.8.2005, thereby the order of the trial court became final.
10. Acting upon the same, the DEO recognized the Petitioner as the CorRespondent by an order, dated 2.3.2007. The third Respondent''s application to recognize her son fourth Respondent as the CorRespondent of the School was also rejected by the DEO by a further order, dated 29.4.2009. It is as against the order passed by the DEO, the third Respondent had preferred an appeal before the first Respondent. The first Respondent by the impugned order, dated 19.8.2010 allowed the appeal of the third Respondent. He held that as per the memorandum, the School will have to be taken over by the society and the administration will be by the Executive Committee. The posts of the President and the Secretary can only be belonged to the legal heirs of the entire family. Under the 1973 Private Schools Act, if there is any change in the Constitution of the educational agency upon any transfer, the competent authority''s permission is required. u/s 18 of the Private Schools Act, the functions of the committee are set out. Under Rule 13 of the Private Schools Rules, the functions of the Secretary are set out. Since the school run by them is the minority school, the Secretary should function on behalf of the School. Therefore, the power of the Secretary of the society is to maintain the two schools. Ultimately, the management will be vested with the executive committee. Though it is a minority school, the spirit behind the Act and the rules will also apply to the minority management. The school is an aided private school. On behalf of the educational agency, it is the nominee who can act as the Secretary and can receive the amount from the grant released. Therefore, in respect of the same educational agency, there is no scope for two different representatives, one as the Secretary of the Society and the second as the Secretary / CorRespondent of the school. To this effect, the Government Pleader had also given an opinion on 27.7.2010. Therefore, in the light of these developments and in view of the turn management, the society will have to be taken over the administration of the school. For the period from April, 2010 to March, 2013 for three years on turn basis, the third Respondent will be functioning as the Secretary cum CorRespondent of the school. The earlier order passed by the DEEO, dated 29.4.2010 in refusing to recognize the third Respondent was cancelled. Since the third Respondent was qualified to be the Secretary cum CorRespondent, her holding of office from April, 2010 to March, 2013 can be recognized by the second Respondent. Acting upon the said order, the second Respondent DEEO had issued a consequential order recognizing the fourth Respondent as the CorRespondent of the school on the basis of the nomination made by the third Respondent. It is challenging these two orders, the writ petition was filed.
11. Mr. R. Yashod Vardhan, the learned senior counsel for the Petitioner stated that the order passed by the first Respondent and the consequential order of the second Respondent is illegal. There is no scope for the official Respondents to vary the findings rendered by the Civil Court. In essence, they cannot sit in the appeal over the findings rendered by the Civil Court either interpreting the memorandum of establishment of school or recognizing the dual post of the school. The first Respondent had not even looked into the judgment passed by this Court in S.A. Nos. 439 and 1092 of 2004 as well as the order passed in W.P. Nos. 5435 of 1996 and 7480 of 1998. u/s 53-A of the Private Schools Act, a dispute relating to an educational agency will have to be determined only by the Civil Court. In the present case, there is no necessity for any fresh litigation since the present dispute was already resolved by an appropriate civil court.
12. In W.P. No. 5435 of 1996 filed by the Petitioner which was disposed of by an order dated 6.8.1996, in paragraph 9, this Court observed as follows:
9. That apart, the office of the secretary of the society has nothing to do with the offices of CorRespondent of two schools. The writ Petitioner is trying to mix up the two and trying to confuse the educational authorities. Her repeated requests seeking to recognize her as CorRespondent of the schools is in my opinion totally without any basis and contrary to the decisions of the civil courts. In this case, I am fully satisfied that the society has made a resolution appointing the 8th Respondent as the CorRespondent of the schools with effect from 29.11.1995. Unless and until the Petitioner is able to get a declaration in a civil court that the said resolution of the society appointing the 8th Respondent as the CorRespondent of the schools is illegal, she cannot claim to interface with the administration of the two schools....
13. The said order came to be confirmed in W.A. No. 761 of 1996, dated 16.8.1996. In W.P. No. 7480 of 1998 filed by the third Respondent claiming to be the secretary of the school came to be dismissed by an order dated 5.10.1998. In paragraph 8, it was ordered as follows:
8. Under the Tamil Nadu Private Schools (Regulation) Act, correspondence can be had only with CorRespondent duly nominated, and he alone can make appointments representing the Educational Agency or the Committee. When the legal position of the 8th Respondent is upheld by court. If there are vacancies to be filled up, 8th Respondent, in to his capacity as corRespondent, is entitled to fill up the posts, and Respondents 1 to 4 are also entitled to pass orders, whether to approve them or not. If the writ Petitioner is allowed, it will only mean that Court is prohibiting the statutory Authorities from discharging their statutory duties. Such a thing cannot be allowed.
14. In the second appeal, holding of the office of the Secretary ship on rotation alone was granted. But there was no discussion holding that the office of the Secretary was same as the CorRespondent. It is argued that there was no occasion for the official Respondents 1 and 2 to alter the findings rendered earlier. Therefore, he prayed for setting aside the impugned orders passed by the Respondents 1 and 2.
15. Per contra, Mr. G.R. Swaminathan, learned Counsel for the third and fourth Respondents submitted that duration of the CorRespondent is co-terminus with the duration of the Secretary. It is only the turn Secretary can either be the CorRespondent or nominate a person as the Correspondent. Hence the fourth Respondent is entitled to be the Correspondent of the School. As soon as the fourth Respondent''s mother third Respondent took charge, she nominated the fourth Respondent as the Correspondent. When the DEEO had refused to grant approval, he filed an appeal before the first Respondent which was allowed by the impugned order and pursuant to the consequential order, the fourth Respondent had assumed charge. A reading of the judgment in S.A. No. 439 of 2004 and the order dated 30.4.2004 in C.M.P. No. 3344 of 2004 will endure to their benefit.
16. It is an admitted case of the parties that the school administered by them is a minority school and receiving grants from the Government. In the absence of any provision of the Tamil Nadu Recognized Private Schools (Regulations) Act, 1973 and the rules made there under directly be made applicable to the school, it is the Tamil Nadu Minority Schools (Recognition and Payment of grant) Rules, 1977 will alone apply to them. Under those rules, a declaration will have to be given only either by the Correspondent, Manager or the Secretary in respect of the Form to be submitted. But in all other respects, the office of the Correspondent or Manager alone is mentioned in those rules. Therefore, the first Respondent cannot presume that the spirit of the Private Schools Act and Rules can be read into the management of minority schools. On the other hand, if the by-laws of such minority educational agency provides for dichotomy in those posts i.e. Secretary or Correspondent being two different entities, the first Respondent cannot combine them into one post and pass the impugned order.
17. If there is any dispute relating to the minority management over the control of the educational agency, the issue can be decided only by the Civil Court and that findings of the civil court will have to be implicitly followed by the education department. In this context, the Supreme Court has held that the ownership and title of the property belonging to the school as well as administration of the school cannot be determined in a writ petition. It is necessary to refer to the judgment of the Supreme Court in
This appeal is directed against the judgment and order dated 13-10-1999 passed by a Division Bench of the Madras High Court in Writ Petition No. 15089 of 1998 whereby and where under the writ petition filed by Swami Bodhananda had been allowed. The said writ petition was filed for issuance of a writ of or in the nature of mandamus directing the Respondents therein to give all assistance to the Appellant in taking over management of the institutions specified therein. The said writ petition was filed having regard to the judgment of the civil court.
2. A decree passed by the civil court must be executed in terms of the provisions contained in the Code of Civil Procedure. The writ petition is not the appropriate remedy therefore. In that view of the matter, the impugned judgment cannot be sustained, which is set aside accordingly. The appeal is allowed. It, however, goes without saying that the first Respondent herein shall be entitled to execute the decree in accordance with law.
(Emphasis added)
18. Further, the Supreme Court has also held that any dispute relating to control over the educational agency will have to be determined only in a suit in terms of Section 53-A of the Tamil Nadu Recognized Private School Regulations Act, 1973 and in such matters, the power of the Civil Court is not excluded. It is necessary to refer to the subsequent decision of the Supreme Court in
49. A dispute as to who is the real educational agency in relation to a private school is not a matter which in terms of the provisions of the said Act would be determined by an authority under the provisions of the said Act. Section 53-A of the Act carves out an exception to Section 53 thereof. In terms of the said provision, any dispute as to the educational institution is to be determined by a civil court having jurisdiction for its decision. The submission of Mr Sukumaran, however, is that the jurisdiction of the civil court is required to be invoked in such matters specified therein by way of reference by the persons interested or by the competent authority. Mr Sukumaran would contend that such a reference would be akin to a dispute pending under the Industrial Disputes Act. We cannot accept the said contention. A party to a dispute may not join the other in referring the same to the civil court. The party may agree or may not agree therefore. A person having a grievance as against another must have a remedy. The maxim "ubi jus, ibi remedium" is not an empty formality. The jurisdiction of the civil court exemplifies the said doctrine. The jurisdiction of the civil court cannot be held to have been ousted unless it is so, expressly or by necessary implication, stated in the statute. In terms of Section 53-A of the Act, a dispute as to educational agency is concededly required to be decided by a civil court. How the jurisdiction of the civil court is required to be invoked is a matter to be examined by the civil court. Unlike a private tribunal or a statutory tribunal which would not derive a jurisdiction unless a reference in terms of the provisions of the Act is made to it, the civil court enjoys a plenary jurisdiction. Furthermore, if and when a dispute arises before the competent authority as regards entitlement of an educational agency in relation to educational institutions, the same must also be referred to the civil court. Statutory authority in terms of Section 5 of the Act cannot be said to have any jurisdiction to determine such a dispute. A statute, as is well known, must be read in such a manner so as to give effect to the provisions thereof. It must be read reasonably. A statute must be construed in such a manner so as to make it workable. The wording "referred by the persons interested" would, thus, mean a person who has a grievance as regards claim of other side relating to educational agency of the educational institutions. It can be done by filing a suit before the civil court. The term "persons", which is plural, has been used having regard to the fact that educational agency need not be a person alone but would also include a society registered under the Societies Registration Act or a body corporate in terms of the Companies Act. In any event, if such a dispute within the contemplation of Section 53-A has to be decided by a civil court, it will not attract the bar u/s 53 which applies only to a question which is required to be dealt with or decided by any authority or officer mentioned in the Act.
(Emphasis added)
19. In the present case, in the earlier rounds of litigation, the turn management that was talked about was only about the Secretary ship of the society and not that of the Correspondent. Already this Court in two writ petitions, i.e. W.P. No. 5435 of 1996, dated 6.8.1996 and in W.P. No. 7480 of 1998, dated 5.10.1998 dealt with this aspect and the Civil Court had also rejected the contention of the third and fourth Respondents to the contrary.
20. In view of the above, this Court is not inclined to accept the stand of the Respondents. The impugned order of the Respondents is clearly in violation of the earlier orders of this Court and contrary to the findings rendered by the Civil Court. The first Respondent has no right to read into the impugned order something diametrically opposite to what has been found by the earlier proceedings. In view of the above, the writ petition will stand allowed and the impugned order stands set aside. However, there will be no order as to costs. Consequently, connected miscellaneous petition stands closed.
