Thirumurugan Aided Middle School v. State of Tamil Nadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23.01.2009CORAMTHE HONOURABLE MS. JUSTICE S.NAGAMUTHUWrit Petition No.23923 of 2008and M.P.Nos.1 and 2 of 2008Thirumurugan Aided Middle School,Rep. by its Manager-K.KarthikeyanMadhavacheri, Kallakurichi Taluk,Villupuram District – 606 207 ..Petitioner-Vs-1. The State of Tamil Nadu Rep. by the Secretary Government, School Education (C-2) Department Secretariat, Chennai – 600 0092. The Director of Elementary Education D.P.I. Buildings, College Road, Chennai – 600 0063. The District Collector, Villupuram District, Villupuram4. The District Elementary Educational Officer, Villupuram, Villupuram District – 605 6025. Mrs. Sudanthira President, Madhavachery Panchayat, Madhavachery, Kallakurichi Taluk, Villupuram District – 606 2076. S.Santha Kumar7. S.Rajendran8. M.Kaliyamoorthy9. V.Sankar10 V.Murugesan11. G.Periyasamy12. N.Kumudha https://hcservices.ecourts.gov.in/hcservices/

13. P.Devanath14. G.Santhi(R-6 to R-14 impleaded as per the order dated 07.01.2009 in M.P.No.1 of 2009 in W.P.No.23923 of 2008) .. RespondentsPrayer:- Writ Petition filed under Article 226 of the Constitutionof India praying for the issuance of a writ of certiorari by callingfor the records from the first respondent in connection with hisproceedings in G.O.(1D) No.315, School Education (C-2) Department,dated 19.09.2008 and quash the same.For Petitioner : Mr. R.Singaravelu, for Mr. V.S.JagadeesanFor Respondents: Mr. G.Sankaran, Spl. G.P., for R-1, R-2, R-3 and R-4 Mr. Shanmugasundaram, Senior Counsel for Mr. L Baskaran, for R-5. Mr. C.Selvaraj, Senior Counsel Mr. S.Mani, for R-6 to R-14O R D E RThe petitioner is an aided middle school represented by itsManager governed by the Tamil Nadu Recognised Private Schools(Regulation) Act, 1973. In this writ petition the petitionerchallenges G.O.(1D) No.315, School Education (C-2) Department, dated19.09.2008.2.The facts of the case in brief are as follows:-The petitioner school was established in the year 1908. Thereare classes up to VIII Standard from I standard. The petitioner madean application to the authorities on 19.03.2008 seeking to upgradethe school into one of a high school. Since no action whatsoever wastaken on the same, he filed W.P.No.9932 of 2008 before this Courtseeking for appropriate directions. This Court, by order dated23.04.2008, without expressing any opinion regarding the merits ofthe writ petition, directed the authorities concerned to considerthe representation of the petitioner dated 19.03.2008 and passorders within a period of six weeks from the date of receipt of acopy of the order after affording sufficient opportunity to thepetitioner.3.It is the grievance of the petitioner that even after thesaid order, his representation was not considered and therefore, heproposed to initiate contempt proceedings against the fourthrespondent. At that stage, the fourth respondent passed an order https://hcservices.ecourts.gov.in/hcservices/ refusing to upgrade the school as the High School. In the sameorder, the fourth respondent ordered for direct payment of salary tothe Teachers. Challenging the said direction, the petitioner hasfiled W.P.No.17992 of 2008 which is also pending before this Court.4.While so, according to the petitioner, the fifth respondentwho is the President of the Local Panchayat Board made an attempt toconstruct a "Karumathi Shelter" near the School. The same wasobjected to by the petitioner and other interested persons. Torestrain the fifth respondent from constructing any such shelter,the petitioner filed W.P.No.34584 of 2007 before this Court.5.At this juncture, though it is not stated in the affidavit ofthe petitioner, the following facts which were brought to the noticeof this Court during the arguments need to be mentioned.6.Before W.P.No.34584 of 2007 was filed, the brother of thepetitioner, Mr.Elango, filed a Civil Suit before the learnedDistrict Munsif Court, Kallakurichi, praying for a decree for aninjunction to restrain the fifth respondent herein from putting upany Karumathi Shelter near the school. The suit was ultimatelydismissed as Mr. Elango namely the brother of the petitioner has gotno locus standi. The appeal preferred by Mr.Elango namely thebrother of the petitioner against the decree and judgment of thelearned District Munsif Court, Kallakurichi, was also dismissed.Thereafter, the petitioner filed another suit before the DistrictMunsif Court, for the same relief, but no interim order ofinjunction was granted by the learned District Munsif as prayed forby the petitioner. When the said suit was pending and his requestfor interim order was pending, by suppressing the same, thepetitioner filed W.P.No.34584 of 2007 before this Court. 7.When W.P.No.34584 of 2007 was heard at length, it was broughtto the notice that the petitioner had suppressed all the above factsin the affidavit filed in support of W.P.No.34584 of 2007 and hadthus attempted to abuse the process of Court. Therefore, this Courtdismissed W.P.No.34584 of 2007 by order dated 22.01.2009 with costof Rs.5,000/-.8.Coming back to the facts of the present case, the petitionerhas further averred in the affidavit that because of the abovestated personal ill-motive, the fifth respondent had instigated thestudents not to attend the classes and had also instigated theparents to get the transfer certificates of the students.Accordingly, large number of students got transfer certificates.Thus, the strength of the students in the school has beenconsiderably reduced to around 50. Several attempts made by thepetitioner through the Governmental Agencies to convince the parentsof the students to readmit the students in the school also failed.It is admitted that a new school has been started in the same https://hcservices.ecourts.gov.in/hcservices/ village and the students have been admitted there. In thosecircumstances, the Government has issued G.O.(1D) No.315, SchoolEducation (C-2) Department, dated 19.09.2008 which has got threecomponents as follows:-"(i) to start a new Panchayat Union MiddleSchool in a village during Academic year 2008-2009;(ii) closure of the petitioner School;(iii) to re-deploy the teacher for workingin the school to other schools where there arevacancies."It is this Government Order which is put under challenge in thiswrit petition.9.The contention of the petitioner is that the order impugnedis, at the outset, without jurisdiction. The learned counsel wouldtake me through the provisions of the Tamil Nadu Recognised PrivateSchools (Regulation) Act, 1973 (hereinafter referred to as "theAct") and the Rules to substantiate his contention that power towithdraw recognition is vested only with the competent authoritynamely in the instant case, the Chief Educational Officer and nosuch power to withdraw the recognition has been given to theGovernment. He would further submit that, of course, the Governmenthas got power to order closure of any school; but according toSection 29 of the said Act, such closure can be ordered only at theinstance of the Management that too after complying with variousother conditions enumerated in the section itself. He would furthersubmit that before passing the impugned order, no opportunitywhatsoever, was given to the petitioner and thus, the order has beenpassed in gross violation of the principles of natural justice. Onthis ground also, according to the petitioner, the impugned order isliable to be quashed. Lastly, it is the contention of the petitionerthat the impugned order has been actuated by malice on the part ofthe officials as well as the fifth respondent. Simply because thepetitioner was proposing to initiate contempt proceedings againstthe fourth respondent for not having complied with an earlier orderof this Court as narrated above, the fifth respondent as well as theother officials are highly biased against the petitioner. It is hisfurther contention that since the petitioner filed a writ petitionbefore this Court to restrain the fifth respondent from constructingKarumathi Shelter near the School, the fifth respondent is alsobiased and it is at her instance, that the Government Order has beenissued. For all these reasons the petitioner would pray for quashingthe impugned Government Order.10.A detailed counter affidavit has been filed on behalf of theGovernment, wherein it has been narrated as to how efforts were https://hcservices.ecourts.gov.in/hcservices/ taken to resolve the issue in the interest of the students. It isalso stated that despite all the efforts taken including PeaceCommittee Meeting, the parents of the students refused to readmitthe students in the petitioner school. It is further stated that thevillagers made a request for an establishment of a new school andhaving regard to the interest of the students of the village, theGovernment passed the Government Order granting permission forestablishment of a new Panchayat Union Middle School. Thus,according to the Government, there is no malice on the part of theGovernment and the order is not at all a motivated order.11.It is further contended in the counter affidavit by theGovernment that the strength of the students had fallen far belowthe economic strength which impelled the Government to issue orderto close the school and also to re-deploy the teachers working inthe petitioner's School. It is further contended that the Governmenthas got the power to issue such an order to direct the closure ofthe school under Section 29 of the Act. It is further contended thatthe power to issue recognition or permission to start a schoolincludes power to withdraw recognition or permission. Thus,according to the Government, the impugned order cannot be stated tobe without jurisdiction; it does not suffer from any infirmity andso, no interference is required at the hands of this Court. 12.The fifth respondent has filed a separate counter affidavitdenying all the allegations made against the petitioner. I do notpropose to elaborate the same in this order since the allegationsmade by the petitioner against the fifth respondent and the counterallegations made by the fifth respondent against the petitioner areimmaterial for deciding the issues involved in this writ petition.13.Respondents 6 to 14 are teachers working in the petitionerschool, who neither support the management nor the Government.According to the learned Senior Counsel appearing for the teachers,they want to work either in the same school or in some other schoolon re-deployment. But, they are very particular in service and forearning salary for the service so rendered. The learned SeniorCounsel would go on record to submit that the Teachers namelyrespondents 6 to 14 are prepared to work in any school even in casethere is re-deployment. The said statement is recorded.14.I have considered the rival submissions made by the learnedcounsel on either side and also perused the records thoroughly. 15.Before adverting to the facts involved in the case let mefirst analyse the legal position by making a survey of variousprovisions of the said Act and the Rules. https://hcservices.ecourts.gov.in/hcservices/

16.Section 11 of the Act speaks of recognition of PrivateSchools and Section 12 speaks of power to withdraw recognition bycompetent authority. Section 12 of the Act reads as follows:-"12. Withdrawal of recognition by competentauthority. - (1) The competent authority maywithdraw permanently or for any specified periodthe recognition of any private school -(i) which does not comply with any of theprovisions of this Act or any rules made ordirections issued thereunder in so far as suchprovisions, rules or directions are applicableto such private school, or(ii) in respect of which the pay and allowancespayable to any teacher or other person employedin such private school are not paid to suchteacher or other person in accordance with theprovisions of this Act or the rules madethereunder, or(iii) which contravenes or fails to comply withany such conditions as may be prescribed.(2) Before withdrawing the recognition undersub-section (1), the competent authority shallgive the educational agency an opportunity ofmaking its representation.(3) The competent authority, on withdrawal ofthe recognition of a private school under sub-section (1), shall make necessary arrangementsfor the continuance of the instruction of thepupils of the said private school in otherrecognised private schools.17.As rightly pointed out by the learned counsel for thepetitioner, power to withdraw recognition is vested only with thecompetent authority. As per Rule 10 of the Tamil Nadu RecognisedPrivate Schools (Regulation) Rules, 1974 (hereinafter referred to as"the Rules") in respect of pre-primary, primary and middle schools,the competent authority is the Chief Educational Officer concerned.Further, as provided in Section 12, sub-clause (2), before any orderof withdrawal of recognition is passed, the competent authority isrequired to afford an opportunity to the Educational Agency to makerepresentation. 18.In the case on hand, the impugned order is not one ofwithdrawal of recognition but an order to close the school. When aspecific query was posed on the learned Special Government Pleader,as to whether the impugned order can be read as an order of https://hcservices.ecourts.gov.in/hcservices/ withdrawal of recognition, the learned Special Government Pleaderwould submit that it is only an 'order of closure' and not an 'orderof withdrawal'. There can be no doubt that an order withdrawing therecognition can be passed in respect of a middle school only by theChief Educational Officer. Since, it is not the case of theGovernment that the impugned order is an order of withdrawal ofrecognition I need not dwell more on Section 12.19.Let me now proceed to know the legal position regarding thepower of closure of school. Except Section 29 of the Act, there isno other provision in the Act empowering any other authority toorder for closure of a school. Correspondingly, Rule 20 speaks ofconditions for closure of private school, class and course ofinstruction therein. According to these two provisions, a school canbe ordered to be closed by the competent authority only at theinstance of the Educational Agency. In the case on hand, it is notas though any request was made by the petitioner Educational Agencyseeking permission to close the school. When the Government has notbeen empowered to order for closure of a school under Section 29 ofthe Act and in the light of the legal position that the competentauthority alone has been empowered to order for closure of a schoolthat too, only at the instance of the educational agency, in myconsidered opinion, the impugned order for closure of the schoolpassed by the Government is undoubtedly without jurisdiction.20.Section 34 of the Act speaks of taking over of management ofprivate school. Here, power has been given to the Government to passan order taking over a school. As found in the proviso to Section 34sub-clause (1), even such power to take over a school can be passedonly after an order suspending the management has been passed underSection 18-A of the Act. In this case, the Government has notdecided to take over the management of the petitioner school.21.The Special Government Pleader appearing for respondents 1to 4 would submit that such power to order for closure of schoolflows from Section 4 of the Act. Section 4 of the Act reads asunder:-"4.New private school to obtainpermission.-Save as otherwise expressly providedin this Act, no person shall, without thepermission of the competent authority and exceptin accordance with the terms and conditionsspecified in such permission, establish on orafter the date of the commencement of this Act,any private school."22.The learned Special Government Pleader would submit thatpower to issue of an order of recognition includes power to withdrawthe recognition and power to grant permission includes power to https://hcservices.ecourts.gov.in/hcservices/ withdraw permission. He would further submit that Rule 6 stipulatesvarious conditions to be specified by an Educational Agency forgrant of permission. According to him, if any of these conditionsare found to have been violated, then, the permission grantedalready can be withdrawn by the Government. According to him, thepower to withdraw permission would tantamount to power to order forclosure of a school and such power flows to the Government fromSection 4 of the Act and Rule 6. He would further submit thatSection 29 of the Act also empowers the Government to do so. But, Ifind it very difficult to persuade myself to agree with the argumentof the learned Special Government Pleader in this regard. A plainreading of Section 4 of the Act would keep things beyond any pale ofdoubt that power to grant permission for starting of a new school isvested only with the competent authority. According to Rules theChief Educational Officer is the competent authority in respect ofthe middle schools. If the contention of the learned SpecialGovernment Pleader that power to issue permission includes power towithdraw the permission is to be accepted for the sake of argument,even then, such power is vested only with the competent authorityunder Section 4 of the Act and not the Government. Same is inrespect of Rule 6 also. In respect of Section 29 of the Act, it is aspecific provision made in the Act empowering only the competentauthority again to grant permission to the Educational Agency forclosure of the school. Even here there is no power given either tothe Government or to the competent authority to order for closure ofany school for any violation whatsoever.23.The learned Special Government Pleader would rely on Section21 of the General Clauses Act, 1897 to say that power to issue anorder includes power to withdraw the same. But Section 21 of theGeneral Clauses Act is traceable to Central Acts, Regulations,Orders, Rules, by-laws, etc., The said provision has got noapplication to the state enactments. An attempt was also made by thelearned Special Government Pleader to look for an analoguesprovision in the Tamil Nadu General Clauses Act but in vain. 24.At this juncture, I have to state that the Act is a self-contained Act making elaborate provisions for all kinds ofsituations in respect of staring of school, withdrawal ofpermission, taking over of the management of the school by theGovernment and the closure of the school at the instance of themanagement. Had it been the intention of the law makers that eitherthe Government or any other competent authority should be empoweredto order for closure of the school for certain violations ofconditions or for any other reason then nothing would have preventedthem from making a special provision regarding the same in theenactment. The very fact that no such provision has been made eitherin the Act or in the Rule would go a long way to show that it is notthe intention of the legislature either to empower the Government orany other authority to order for closure of any school at any kind https://hcservices.ecourts.gov.in/hcservices/ situation except under Section 29 of the Act. That is the reason whythe legislature has made Section 34 of the Act to meet the situationwhere in the opinion of the Government the management has failed toconduct the school the management can be taken over by theGovernment. In this case for reasons best known, the Government havenot initiated any action under Section 34 of the Act. 25.In view of all the above, I have to hold that in respect ofclosure of the school the impugned order should fall as the same iswithout jurisdiction.26.The first part of the impugned order speaks of starting ofPanchayat Union Middle School in the same village during theacademic year 2008-2009. The power to start such a school is withinthe domain of the Government which cannot be questioned by anybodyincluding the petitioner. Therefore, to that extent the impugnedGovernment Order deserves to be affirmed. In respect of the thirdpart of the order namely the proposal to redeploy the teachers whoare working in the school, it is absolutely within the power of theauthorities concerned to consider the matter strictly in accordancewith law more particularly in the light of the law laid down by aFull Bench decision of this Court reported in 2005 (5) CTC 385(Director of Elementary Education v. S.Vigila) and to passappropriate orders if the situation warrants.27.It is made clear that this order would not stand in the wayof the Authorities from passing any order of redeployment ofteachers who are working in the petitioner School after complyingwith the provisions of the Act that too if the situation warrantsso. 28.At this juncture the learned Special Government Pleaderwould request this Court to clarify that this order would not standin the way of the Government or the competent authority to proceedagainst the school in accordance with law after affording sufficientopportunity to the petitioner and strictly complying with theprovisions. Accordingly, it is clarified that either the Governmentor the Competent Authority, in exercise of the powers conferredunder law, can proceed further strictly by applying with theprovisions.29.In the result, the writ petition is allowed in part asindicated infra.(i)The impugned order to the extent it directs the closure ofthe school is quashed.(ii)The impugned order is confirmed in other respects asclarified herein before. https://hcservices.ecourts.gov.in/hcservices/ No costs. Consequently, connected miscellaneous petition is closed. sd/-Asst.Registrar/true copy/Sub Asst.Registrarjbm / srk To1. The Secretary to Government, State of Tamil Nadu School Education (C-2) Department, Secretariat, Chennai – 600 009.2. The Director of Elementary Education, D.P.I. Buildings, College Road, Chennai – 600 006.3. The District Collector, Villupuram District, Villupuram.4. The District Elementary Educational Officer, Villupuram, Villupuram District – 605 602.+ 1 c.c. to Mr. Chandrababu, Advocate. S.R.No.3328.+ 1 c.c. to Mr. S. Mani, Advocate. S.R.No.3349.Writ Petition No.23923 of 2008and M.P.Nos.1 and 2 of 2008RS (CO)GSK 05.02.2009.