Carpenter Street Middle School vs The State of Tamil Nadu and Others

P. Shanmugam, J.—The above writ petition is filed by an educational institution (Middle School) represented by its Manager and Correspondent praying for the issue of a Writ of Mandamus directing Respondents 1 to 6 herein to take necessary and appropriate legal action against Respondents 7 to 12 herein for having misappropriated the Government money to the tune of more than Rs. 50,00,000/- (Rupees Fifty Lakhs) by way of sanctioning teaching grant of more than Rs. 25,00,000/- from 8.7.1997 to till date, arrears of salary of Rs. 16,67,095/- from 4.9.1995 to 7.7.1997 and sanctions of increments, ad hoc Bonus, Dearness Allowance, H.R.A., and other benefits of about Rs. 10,00,000/- and illegally disbursed to the/terminated teachers, Respondents 15 to 30 herein and to recover the said amounts from Respondents 15 to 30.

Petitioner has impleaded 30 Respondents. Of them, Respondents 16 to 30 are Assistant Teachers, who according to the Petitioner, were working in the Petitioner school. The Petitioner has impleaded Respondents 1 to 14. He has impleaded Respondents 5, 7, 9 and 11 in their personal capacity. He has also impleaded the Chief Secretary, the Educational Secretary, the Finance Secretary, the Home Secretary and the Deputy Secretary to Chief Minister by name. When the matter came up for hearing on 9.9.99, counsel for the Petitioner was asked as to how the impleading of all these Respondents is relevant and the counsel took time and requested that the matter may be posted to a different date. The office has also raised an objection as to the impleading of the Chief Secretary and the Petitioner had made the following endorsement:

The Chief Secretary, first Respondent, is a necessary party in this writ petition. Stay petition filed. Mandamus prayer is correct.

Accordingly, the matter was posted to 17.9.99. On that day also, after some argument, the matter was posted to 21.9.99. After further arguments, at the request of the Petitioner, the matter was again posted to 24.9.99 finally. On 24.9.99, again at the request of the counsel for the Petitioner, it was posted to 28.9.99. In the meanwhile, Petitioner has filed W.M.P. No. 22754/99 seeking for an amendment to delete Respondents 1, 2, 3, 4 and 5 and delete the individual names only of Respondents 7, 9 and 11. He has filed another W.M.P. No. 22755/99 to amend the prayer in the Writ petition, which is substantially the same. Petitioner has also filed additional typed set of papers dated 15.9.99.

Learned Additional Government Pleader has filed a counter affidavit to the writ petition dated 24.9.99, which was received by the Petitioner''s counsel on the same day.

When the matter was taken up today, though it was to be heard, the learned Counsel for the Petitioner sought permission to withdraw the writ petition. This was opposed to by the Additional Government Pleader stating that the Petitioner has filed a vexatious litigation casting aspersions on the top level officers of the Education Department, and that the writ petition deserves to be dismissed on merits with exemplary cost. After hearing the counsel and considering the matter. I am not inclined to grant permission to the Petitioner to withdraw the writ petition since there are no bona fides in the request. For the reasons set out below, I find that the writ petition is filed without any basis and to harass the Respondents by invoking Article 226 of the Constitution which is an abuse of the process of the court. This Court cannot be a party to the Petitioner''s attempt to harass the Respondents. It is thereafter that the learned Counsel for the Petitioner made his submissions on merits.

The facts of the case are as follows:

Petitioner is running a Middle School with Standards I to VIII. There is a dispute as to the minority character of the institute as well as the strength of the school. The former Correspondent and Secretary Thiru G. Thangapalan, by letter dated 12.11.97, requested to transfer the management of the school to Thiru C. Stephenson Roobasingh. The District Educational Officer, by communication dated 9.11.98, approved the transfer of management as a non-minority institution as per Rules 12 and 13 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1973 (hereinafter referred to as the Rules). In the same order, it is stated that inasmuch as the school is a non-minority school all these years, there should have been an approval from the school committee. As against the order of the D.E.O., the Petitioner filed a revision and also sought for a status of minority. It is further seen that the former correspondent G. Thangapalan appears to have transferred the management of the school to one Thiru Vasan. Thiru G. Thangapalan had changed his mind and withdrew his request for transfer of management. After that Thiru G. Thangapalan continued to run a school in a playground with four teachers without prior permission of the department for shifting the school. Thiru G. Thangapalan had dismissed all the 18 teachers who were working in the school run by Thiru Vasan in his premises w.e.f. 4.9.98 by an order dated 16.4.97 without prior permission of the department. The correspondent did not send the proposal, but only sent the intimation. It is thereafter that Thiru G. Thangapalan has given a letter to transfer the management to Thiru C. Stephenson Roobasingh dated 12.11.97, and on the recommendation of the Assistant Educational Officer, the District Educational Officer passed an order to transfer the management under Rules 12 and 13 of the Rules. Even in this order, he has stated that the school continues to be a non-minority school even prior to the transfer and that there was no resolution by the school committee for the transfer. Therefore, there is a doubt about the transfer of management to the Petitioner. However, as against this order of the D.E.O. Petitioner preferred a revision on 21.11.98 seeking for a minority status. The said revision is still pending. Even earlier, the former correspondent G. Thangapalan had filed a writ petition No. 15878/95 as against the direct payment. A learned Judge of this Court, in W.M.P. No. 25250/95 dated 19.6.1996, held that a perusal of the impugned order shows that the D.E.O. had accepted the report of the A.E.O. that there is a dispute in the management and therefore, in the interests of the teachers, the Respondents have decided to pay the teachers directly through the Headmistress and therefore, the learned Judge refused to interfere with the order. Two teachers M/s. C. Selvi and S. Ponrajan filed W.P. No. 2595/97 for a direction to pay the salary. This Court, by order dated 29.4.97, while recognising that there is a dispute with respect to the educational agency, issued the mandamus directing the Respondents to pay the salary. Thiru G. Thangapalan, as Manager and Correspondent, filed W.P. No. 419/96 against the show cause notice issued by the D.E.O. to cancel the recognition. The said order has been stayed in W.M.P. No. 678/96. The writ petition is still pending. Another teacher by name Patchiammal filed W.P. No. 18534/96 for a direction to disburse salary. The said teacher''s representation was directed to be considered. Consequent to the termination of 18 teachers, they have been deployed in other needy schools invoking the power u/s 26 of the Act. The department, consequent on their deployment, claimed salary and arrears to the three teachers who have filed the writ petition. Thiru Thangapalan filed W.M.P. No. 25250/95 in W.P. No. 15878/95 not to recognise S. Vasan as manager and Correspondent, and to stay the order of the D.E.O. dated 4.10.95 ordering pay to those 18 teachers. The W.M.P. was dismissed by order dated 19.6.96 holding that the order is "predominantly in the interest of the teachers" Now presently, the writ petition is filed against the grant of the salary and arrears to those teachers. In the affidavit filed in support of the writ petition, Petitioner has proceeded as though the payment of salary and arrears to the teachers is misappropriation of funds by the Respondents and therefore, he seeks legal action against them for the same.

The writ petition is not maintainable for the following reasons:

(1) Admittedly, the teachers have been transferred from the former management to the needy schools and all of them are working except some of the teachers who have retired. The said order of transfer has become final and it has not been challenged.

(2) Even according to the Petitioner, his predecessor had terminated the services of 18 teachers. In para 4 of the affidavit, it is stated as follows:

Ultimately, the services of the said 18 teachers were terminated from the Petitioner-school on 4.9.95 onwards as per the order dated 16.4.97 of the Petitioner management on the disciplinary action taken against them.

(3) The department exercised the power u/s 26 of the Act for redeploying those teachers to needy school.

(4) Therefore, once the Petitioner admits termination and the teachers are working in some other school, Petitioner has no locus standi to file this writ petition to object to the payment made to the teachers who are working elsewhere. As a matter of fact, as against the termination without proposal and permission, the management is bound to pay the salary from their pocket.

The Petitioner''s transfer of management is long after the termination and this transfer also cannot be said to be finally approved since even the D.E.O.''s Order dated 9.11.98 states that there was no resolution for transfer from the School Committee to the Petitioner. Therefore, Thiru Roobasingh, who becomes the correspondent after one year of the termination of the teachers by the erstwhile correspondent, cannot question the salary paid to those teachers working in a different school.

It is further clear that the teachers have filed writ petitions and by the directions of this Court in W.P. No. 2595/97 dated 29.4.97, they were directed to be paid their salaries. It is further seen that the former correspondent Thiru G. Thangapalan had sent proposal for sanction of pensionary benefits to three teachers and the same was approved and their retirement benefits were granted. Petitioner preferred W.P. No. 5696/98 for fixation of staff strength for the year 1997-98 and 1998-99. This Court directed the Respondent to fix the staff strength and also passed consequential order regarding the release of grant, as against which, the Government filed Writ Appeal No. 605/99 and obtained stay. Whereas, the Petitioner had been making repeated representations by way of telegrams to high dignitaries for taking action for the alleged violation of the order in W.P. No. 5696/98. This has nothing to do with the alleged payment made to the teachers. However, in the telegram addressed to the Honourable Ministers, he had referred to this order in the W.P. A copy of the telegram dated 3.2.99 found in the typed set of papers is addressed to Thiru Anbazhagan. Education Minister, Tamil Nadu Government, Thiru Govvri Sankar. Secretary School Education Department. Tamil Nadu Government. the Secretary. Finance Department, Tamil Nadu Government, the Secretary, Vigilance Commission. Tamil Nadu Government, the Inspector-General of Police, Vigilance and Anticorruption, Tamil Nadu, Chennai. The content of the message is as follows.

Government Money of Rupees Fifty Lakhs misappropriated kindly take criminal action against accused as per order dated 07.12.98 made in Writ Petition 5696 of 1998 of High Court Madras and my petition dated 23.1.1999 sent to you under Registered post pray immediate action.

The same telegram was sent to the Honourable Chief Minister, His Excellency the Governor as well as His Excellency the President of India. The reference to the writ petition is misleading since this has nothing to do with payment of salary to the terminated teachers and that the departmental officers cannot be termed as accused as per the order in the writ petition. Thus, the Petitioner is labouring under a misconception on the facts and circumstances of the case. It could be seen that the Petitioner has made reckless and wild allegations against respectable officers of the department right from the Chief Secretary level to the lower level officers without any regard to the relevance and basis. There is absolutely no ground to say that there is a misappropriation of funds by the officers. Assuming that there is any payment of salary to the teachers, that can only be an irregularity and not misappropriation. In any event, Petitioner has no locus standi to question the payment of salaries since admittedly, the teachers were terminated and are no longer in his service. Secondly, Petitioner was not in management during the relevant time. Assuming that the transfer of management is valid and the Act applies to the Petitioner-school as a minority institution, Petitioner has absolutely no cause of action for filing the above writ petition except to harass the officers. Even after the amendment to the cause title deleting Respondents 1, 3, 4 and 5 and deleting the individual names of Respondents 7, 9 and 11 the prayer is substantially the same. Hence, in my view, the writ petition is wholly unjustifiable contemptuous and is filed in sheer abuse of the process of the court.

For the above reasons, the writ petition is liable to be dismissed with exemplary cost. Accordingly, the writ petition is dismissed with a cost of Rs. 5.000/- consequently, the