G.Jayaprakash Secretary Muthu Naidu Memorial High School v. The Secretary to Government Education Department Fort St.George, Chennai – 600 009

THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 7.10.2009CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANIW.P.No.12095 of 2009G.JayaprakashSecretaryMuthu Naidu Memorial High SchoolJakkarpalayam, Pollachi Coimbatore – 642 202... Petitioner Vs.1. The Secretary to Government Education Department Fort St.George, Chennai – 600 009.2. The District Education Officer Pollachi Education District Pollachi.3. L.Balakrishnan.. RespondentsPRAYER: Petition under Article 226 of the Constitution of India forissue of a writ of Certiorarified Mandamus to call for the records inconnection with the impugned order of the second respondent dated12.3.2009 in Na.Ka.No.5112/A2/08, to quash the same and toconsequently direct the second respondent to approve the petitioneras Secretary of Muthu Naidu Memorial High School, Jakkarpalayam,Pollachi, Coimbatore – 642 202.For Petitioner :Mr.Venkatachalapathy, Sr.Counsel for Mr.M.Sriram For Respondents:Mr.G.Sankaran Special Government Pleader for respondents 1 and 2 Mr.V.Selvaraj for 3rd respondent https://hcservices.ecourts.gov.in/hcservices/ ORDERThis writ petition is directed against the order of the secondrespondent dated 12.3.2009, by which the second respondent, whileconsidering the application of the petitioner dated 1.12.2008 and thereminder dated 24.12.2008 seeking approval of the appointment of thepetitioner as the Secretary of Muthu Naidu Memorial High School,Jakkarpalayam, Pollachi, Coimbatore – 642 202, rejected the same onthe basis that the third respondent has raised certain objectionsregarding the appointment of the Secretary of the School Committeeand directed the parties to approach the Civil Court as per Section53-A of the Tamil Nadu Recognised Private Schools (Regulation) Act,1973 (for brevity, "the Act").2.1. The brief facts leading to the passing of the impugnedorder, relevant for consideration, are that the petitioner's father –R.Govindaraj established "Muthu Naidu Memorial School" on 12.3.1960and the said school was administered by a society called "AraneriKalagam", a society registered under the Tamil Nadu SocietiesRegistration Act. The said society was formed in the year 1958,namely before the Tamil Nadu Societies Registration Act came intoexistence and by virtue of the provisions of the Tamil Nadu SocietiesRegistration Act it is deemed to be a society under the presentTamil Nadu Societies Registration Act.2.2. It appears that the father of the petitioner –R.Govindaraj, due to various reasons, has not filed necessary returnsbefore the authorities under the Tamil Nadu Societies RegistrationAct and actually, the society has become defunct. However, it is notin dispute that so long as the petitioner's father – R.Govindaraj wasalive he has been recognised as an educational agency and as theSecretary of the said school. The petitioner's father expired on3.11.2008. At the time of the death of the petitioner's father, theerstwhile society was defunct and had no other member except thethird respondent, who was the sole surviving member of the society. 2.3. It is the case of the petitioner that at the instance ofthe third respondent, his brother – Ranganatha Naidu has filed a suiton the file of the District Munsif Court, Pollachi in O.S.No.716 of1997 claiming permanent injunction and declaration and afterelaborate trial, the suit came to be dismissed and thereafter, theappeal filed by Ranganatha Naidu also was dismissed. After the saidsuit and appeal came to be dismissed, the third respondent has nowfiled a suit in O.S.No.168 of 2009 before the District Court,Coimbatore for the purpose of framing a scheme for the administrationof the school and admittedly, in the suit filed by the thirdrespondent no interim order was granted. The prayer made by thethird respondent in the scheme suit is as follows: https://hcservices.ecourts.gov.in/hcservices/ "Framing a scheme for the administration of M.N.M.HighSchool, Jakkarpalayam, Pollachi Taluk and the plaintschedule items I, II, III and IV properties belonging tothe school, vest the properties in the trustees to beappointed by this Hon'ble Court"2.4. It is the case of the petitioner that, after the demise ofhis father, the petitioner re-registered the society under the TamilNadu Societies Registration Act in the year 2009 with RegistrationNo.40 of 2009 and the said society constituted by the petitioner isnow running the school. The petitioner, being the son of theoriginal founder of the school, approached the second respondent byway of representation for the purpose of approval of his appointmentas Secretary of the School Committee on 1.12.2008, followed byreminder dated 24.12.2008 and that representation came to be rejectedby the second respondent by the impugned order dated 12.3.2009 forthe reasons stated above.3.1. The impugned order passed by the second respondent ischallenged by the petitioner on various grounds, including that thereis absolutely no justification on the part of the second respondentto invoke Section 53-A of the Act on the factual matrix, since thereis no dispute in respect of the administration of the school betweenany of the parties and that the third respondent has not claimedhimself to be a Secretary of the School Committee and that in theabsence of any dispute regarding the administration of the schoolbetween the petitioner and the third respondent, the secondrespondent cannot invoke Section 53-A of the Act.3.2. It is the further case of the petitioner that even in thescheme suit filed by the third respondent there is no interim orderpassed by the Civil Court and that until the Civil Court passes finalorder, the third respondent cannot object the petitioner continuingas the Secretary of the School Committee.4.1. The third respondent in his counter affidavit has statedthat the father of the petitioner has constituted the originalsociety in the name of "Araneri Kalagam" and that has been changed bythe petitioner after the demise of his father as a new society called"Kalaivani Kalvi Kalagam" and inasmuch as both the societies aretotally different, the present society, namely the newly constitutedsociety by the petitioner cannot claim to be a successor of theerstwhile society constituted by the petitioner's father.4.2. It is the further case of the third respondent that theoriginal educational agency has become defunct and therefore, the newsociety constituted by the petitioner cannot be a successor andtherefore, he has filed a suit in O.S.No.168 of 2009 under Section 92 https://hcservices.ecourts.gov.in/hcservices/ of the Code of Civil Procedure and he has also filed an interlocutoryapplication in I.A.No.441 of 2009 seeking certain interim directions.5. The specific case of the second respondent, as it is seen inthe counter affidavit, is that the second respondent was prompted topass the impugned order, taking a decision that it is a matter to besettled under Section 53-A of the Act, on the ground that the thirdrespondent has written to the second respondent stating that wheneverthe second respondent takes a decision regarding recognition of thepetitioner as the Secretary of the School he has to be consulted.The relevant portion of the counter affidavit filed by the secondrespondent is as follows:"Immediately after the death of Thiru. K.Govindaraju,Thiru.L.Balakrishnan the only alive member of theEducational Agency, Araneri Kalagam sent a petition tothe District Educational Officer, Pollachi not to takeany decision regarding the appointment of Secretary ofthe School without consulting him. Thiru.G.Jayaprakash, S/o.Late Thiru.R.Govindaraju sent aproposal dated 21.12.2008 to the District EducationalOfficer, Pollachi to approve him as the Secretary of theSchool."6. On a reference to the impugned order and also the variouspapers filed in the typeset, it is clear that the petitioner's fatherhas originally constituted the society in the year 1958 andestablished the school on 12.3.1960 and that till his life time hehas been recognised as educational agency as well as the Secretary ofthe School in spite of the fact that even during his life time thesociety constituted by him has become defunct. It is after thedemise of petitioner's father, the petitioner has registered thesociety in the year 2009 and as a legal heir of his father, who hasoriginally started the school, according to the petitioner, he hasbeen in maintenance and management of the school.7. On a reference to the records, nowhere it is seen that thethird respondent has claimed himself to be the Secretary of theSchool. In the counter affidavit filed by the third respondent, itis not his case claiming himself to be the Secretary of the School,managing the affairs of the School. In the counter affidavit what isstated is that after the demise of the original founder, the originalsociety having become defunct and for the purpose of maintenance ofthe school a scheme should be formulated and it is only after thescheme is formulated by the competent court, the regulation regardingthe maintenance of the school will come into operation. There is nointerim order passed by the Civil Court in the suit filed by thethird respondent prohibiting the petitioner from continuing to managethe school in question. https://hcservices.ecourts.gov.in/hcservices/

8. In such view of the matter, there is absolutely nothing toshow that there is a dispute regarding the management of the schoolor claim in respect of the educational agency or claim in respect ofthe Secretary to the School Committee. Simply because the thirdrespondent has filed a suit for scheme it does not ipso facto meanthat the third respondent is claiming to be the educational agency orhe is claiming himself to be the Secretary of the School andmoreover, no materials acceptable are produced in that regard.9. At this juncture, it is relevant to refer Section 53-A of theAct, which is as follows:"Section:53-A. Settlement of dispute as to educationalagency, etc.-(1) Notwithstanding anything contained in section 53,whenever any dispute as to the constitution of anyeducational agency, or as to whether any person or bodyof persons, is an educational agency, in relation to anyprivate school, or as to the constitution of a schoolcommittee, or as to the appointment of the secretary ofthe school committee, arises, such dispute may bereferred by the persons interested or by the competentauthority to the civil court having jurisdiction, forits decision.(2) Pending the decision of the civil court on a disputereferred to it under sub-section (1), or the making ofan interim arrangement by the civil court for therunning of the private school, the Government maynominate an officer to discharge the functions of theeducational agency, the school committee or thesecretary, as the case may be, in relation to theprivate school concerned."10. A reference to the provision makes it very clear that theeducational authority can direct the parties to go to the Civil Courtonly in cases where there is a dispute as to the constitution of theeducational agency, or constitution of a school committee, orappointment of Secretary of the School Committee, and such disputemust be referred by the persons interested or by the competentauthority to the civil court.11. On the factual matrix, in this case, admittedly, the thirdrespondent has not raised any claim, claiming himself to be theSecretary of the School Committee and in such circumstances, itcannot be construed as if there is a dispute in existence regardingthe management of the school or regarding the administration of the https://hcservices.ecourts.gov.in/hcservices/ school. Therefore, in my considered opinion, the decision taken bythe second respondent in the impugned order to come to a conclusionthat there has been a dispute in the management of the school andtherefore, the parties must be referred under Section 53-A of the Actto the Civil Court is not tenable in law. It is however clear thatafter the Civil Court takes a decision in the suit filed by thethird respondent, it is for the parties to workout their remedies inaccordance with the decision taken by the Civil Court.12. In such view of the matter, the impugned order is liable tobe set aside and accordingly, the same is set aside with a directionto the second respondent to consider the application of thepetitioner on merits and in accordance with law and pass appropriateorders in the light of the observations made above. Such ordersshall be passed by the second respondent expeditiously, in any eventwithin twelve weeks from the date of receipt of a copy of this order.It is also made clear that after the suit filed by the thirdrespondent for the purpose of framing of scheme is decided, as perthe decision of the competent Civil Court, it is open to the partiesto workout their remedies in respect of the subsequent maintenanceand management of the school.This writ petition is allowed in the above terms. No costs.Consequently, M.P.No.1 of 2009 is closed. Sd/- Asst. Registrar /True Copy/ Sub Asst.Registrar sasiTo:1. The Secretary to Government Education Department Fort St.George, Chennai – 600 009.2. The District Education Officer Pollachi Education District Pollachi.W.P.No.12095 of 2009MRD (CO)RH (19.10.09)