M. Jeevamani, President, Nehru Educational Society vs The State of Tamilnadu

Honourable Mr. Justice K. Chandru

These three petitions (two writ petitions and one contempt petition) were filed by one and the same person. The petitioner M. Jeevamani, claiming to be the President of Nehru Educational Society, Puthanampatti, filed W.P. (MD) No. 10736 of 2009 seeking for a direction to the second respondent to grant post approval for transfer of Nehru Higher Secondary School from the previous educational agency to the present Educational agency, i.e., Nehru Education Society at Puthanampatti. That writ petition was admitted on 24.10.2009. Pending the writ petition, the petitioner sought for a direction to pay Government grant directly to the said educational agency. In that M.P. (MD) No. 1 of 2009 only notice was ordered. Subsequently, M.P. (MD) No. 2 of 2009 was filed by one M. Ponnambalam to get himself impleaded as party respondent. The said Ponnambalam was none other than the brother of the writ petitioner. It was their father who was the founder member of the earlier society. He has filed a suit earlier in O.S. No. 103 of 1996 for the grant of various reliefs including declaration that Nehru School Committee which is a society registered under the Societies Registration Act, 1860 (and deemed to be a registered society under the Tamil Nadu Societies Registration Act, 1975) had ceased to exist. In that suit, the writ petitioner was arraigned as the fifth defendant. It was under these facts and circumstances of the case, his petition for impleadment was ordered.

Similarly, M.P. (MD) No. 3 of 2009 was filed by the Tamil Nadu Private School Teachers, Employees Association, represented by its General Secretary, K. Thirumavalavan, to get themselves impleaded in the writ petition. He had also filed a suit in O.S. No. 1292 of 1993 before the Sub Court, Tiruchirappalli for the same relief as that of the earlier suit. That petition was also ordered. Accordingly, both parties, I.e., M. Ponnambalam and the Association have got themselves impleaded in the writ petition as respondents 5 and 6.

Even when that writ petition was pending, the same petitioner filed the second writ petition being W.P. (MD) No. 4447 of 2010, challenging an order, dated 24.03.2010 passed by the Chief Educational Officer, Tiruchirappalli informing the Secretary of the Nehru Higher Secondary School, that their appeal against the order passed by the District Elementary Officer resorting to direct payment system to the teachers was rejected. That writ petition was admitted on 6.4.2010. Pending the writ petition, an interim stay was granted on the same day. In the application for interim injunction, no order was passed. Aggrieved by the grant of the interim order, the State of Tamil Nadu and other official respondents have filed a vacate stay petition in M.P. (MD) No. 7 of 2010 seeking to vacate the interim order and that was also not taken up for hearing.

In the meanwhile, three persons, M/s. S. Thamizhirumporai, C. Annadurai and P. Moorthinathan have got themselves impleaded by an order dated 16.12.2011. The brother of the petitioner, i.e., M. Ponnambalam also got himself impleaded on 16.12.2011 in that writ petition. Alleging that the interim order was not obeyed by the respondents, the petitioner filed a contempt petition in Contempt Petition (MD) No. 699 of 2010. In that contempt petition, when it came up for admission, this court directed the main writ petitions themselves to be posted for final disposal. Accordingly, they were posted together.

Heard both sides. The facts leading to the case are as follows:

A society was floated by name Nehru School Society with registration No. 9/1947 registered under the Societies Registration Act, 1860. It was founded by the father and the impleaded respondent M. Ponnambalam known as Nehru Middle School. Subsequently, the school became an High School and thereafter an Higher Secondary School. The membership of the erstwhile society was opened to both sexes, who have completed 18 years of age and who evince interest in the cause of education. The Nehru Middle School was started to impart education to boys and girls of all castes and creeds subject to the rules of the Government Education Department. The intention was to finally raise it to the level of an high School and to conduct an orphanage as an adjunct of the school. It was admitted by all parties that subsequent to the enactment of the Tamil Nadu Societies Registration Act, 1975 (Tamil Nadu Act 27/75), any society existence at that time will be a deemed society registered under the new Act subject to further modifications to be made so as to bring it in conformity with the State enactment. It was also admitted that Ponnambalam, his wife Sivaneswari, Jeevamani and his wife J. Mahalakshmi, were also members of the erstwhile society. But since the society was not functioning in accordance with the rules and regulations, the said society was declared as a defunct society. The same was published in the Tamil Nadu Government Gazette dated 1.1.1992 in Part-VI. Despite intimation to file various statutory forms, it was not done so by the society. For over a period of three years, the society did not lodge any returns. It was removed after due notice u/s 44(3)(b) and was also dissolved.

It was also admitted by all parties that the order of the Government removing the name of the registered society from the list of the registered society and passing an order u/s 44 was not appealed against by any aggrieved person in terms of Section 45 of the said Act. On the contrary, M. Ponnambalam filed a suit in O.S. No. 103/1996 in the District Munsif Court, Thuraiyur for declaring the Nehru School Committee (a society with registration No. 9/47) which was the educational agency, had ceased to exist and for a declaration that fifth and sixth defendants, I.e., M. Jeevamani and M.P. Nataraj are not entitled to function or transact any business on behalf of the Nehru School Committee and for a permanent injunction as well as for a further declaration that the registration of the Nehru Educational Society represented by its Secretary M.P. Nataraj was without jurisdiction, unlawful and inoperative.

The cause of action for filing the suit arose when the writ petitioner floated a new society and got it registered on 14.5.1992 and claims to be its President. By the time, the school had grown from a middle school to that of an high school and later into an higher secondary school. The higher secondary school was enjoying temporary recognition by the Joint Director of School Education (Higher Secondary). In respect of the new society''s bylaws, it was claimed by the writ petitioner that the object of the society was to perpetuate the lofty ideals of his father Mookkapillai and to manage, develop and expand the existing Nehru Higher Secondary School at Puthanampatti started by late Mookkapillai. In that society, he made his wife Mahalakshmi, Chandrakanth (his son), M.P. Nataraj and his wife Sumathi as well as his brother Sivagnanam and his wife Deivanayagi as members and office bearers of the new society. The society''s formation became the root cause for M. Ponnambalam to file the suit to declare the society has become defunct, which declaration is unnecessary, because already the State Government has declared that the erstwhile society has become defunct and removed it from the list of the registered society, which was not challenged by any one. In the suit in I.A. No. 146 of 1992, the learned Munsif had also granted an interim injunction restraining any one from transacting any business in the name of the Nehru School Committee touching the activities of the Nehru Higher Secondary School at Puthanampatti. The suit which was initially filed before the Sub Court was transferred to the Munsif Court in view of the change in the pecuniary jurisdiction of the court.

The said Ponnambalam also filed a writ petition before the Principal Bench being W.P. No. 8135 of 2008, seeking for a direction to the Registration Department to enforce and implement Section 36, 37(a), 39, 40 and 42 of the Tamil Nadu Societies Registration Act, 1975 and to complete the process of dissolution of society made u/s 44(4) of the Act which is pending.

As noted above, one of the association has also filed a suit for the prayer as set out above. It was at this juncture, the petitioner filed a writ petition in W.P.(MD) No. 10736 of 2009 claiming that it was his society which is functioning with the similar objects as that of the defunct society, is entitled to have the earlier Nehru School Committee transferred to the new society. The new society has been functioning from 14.5.1992 as an "educational agency". It is u/s 8(b) of the Tamil Nadu Recognized Private Schools (Regulation) Act, 1973, a transfer of agency requires prior approval of the competent authority. As per Section 8(c), only a post approval is required. The School Act will not prescribe any time limit within which approval has to be granted. But, he had already applied for the post approval to the second respondent, Joint Director of School Education, Chennai. There is no vacuum in the school management. It is unnecessary to invoke Section 18-A of the Tamil Nadu Recognised Private Schools (Regulation) Act for taking over the management. As he had already submitted Form IV, a direction should be issued.

In fact, the District Educational Officer by his notice dated 27.8.2009 issued a show cause notice as to why a direct payment system should not be resorted to. Pursuant to the show cause notice, as the writ petitioner did not file any reply, by an order dated 18.2.2010, the direct payment system was resorted to. In that order, there were as many as six charges made against the Correspondent of the School, including teachers'' grievances and selling the land and functioning without any authority as an educational agency. The petitioner filed an appeal against the said order. When the same was rejected by the Chief Educational Officer and thus, he is before this court.

The contention of the petitioner was that there was no cause for resorting to direct payment system. The subordinate educational officers have no power under Sections 14 and 18(a) of the Private Schools Act. The order passed was without jurisdiction. In the vacate stay application filed by the respondent State, it was stated that under Rule 19, Annexure-III of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1974, it is the power for them to resort to direct payment system. The petitioner had thoroughly mismanaged the school and was running the school without any authority as no new educational agency has been recognised. The previous educational agency has become defunct. The petitioner''s reference to Section 5-A of the Private Schools Act is irrelevant as it was not the society functioning at the time of introduction of the Act.

The petitioner also filed a contempt petition being Contempt Petition (MD) No. 699 of 2010 for the alleged disobedience of the order passed in M.P. (MD) No. 1 of 2010. The court is of the opinion that the disposal of the writ petitions will decide the outcome of the contempt petition. Therefore, the main matters were taken up for hearing.

Mr. V. Singan, learned counsel for the petitioner raised the following contentions. Firstly, he stated that there was no provision under which the District Educational Officer can resort to direct payment system. Only u/s 14, the question of grant can be determined and the authority is only the State Government and not the District Educational Officer. In this context, he referred to a judgment of this court in Jayalakshmi Vilas Middle School Vs. The Director of Elementary Education, The District Elementary Educational Officer and The Asst. Elementary Educational Officer, wherein the Government alone has control power to deal with the grant. In that case, another judgment of this court in A. Fathima Fareedunnissa Vs. T.A.H. Zubaida Ummal and Others, was referred to in which Section 14 was referred to.

It must be noted that Section 14 itself clearly stated that subject to rules that may be prescribed, the Government can continue grant and rules have been framed u/s 56. u/s 51, delegation of powers to subordinate officers are provided. It is in this context, Rule 19 deals with payment of allowance of Teachers and other persons employed in private schools to be paid in the prescribed manner. Annexure-III prescribed procedures for payment of pay and allowances to teachers and other persons in private schools. In Annexure-III, clause 3(II) and (III) reads as follows:

II. Under special circumstances, the District Educational Officer concerned may make direct payment to the Headmaster of a school or to the Teachers of a school.

III. Before releasing the teaching grant or staff grant, the District Educational Officer shall verify and satisfy himself as to whether the appointments made by the School Committee are in accordance with the Rules and Government orders in force.

(Emphasis added)

Therefore, reliance placed upon judgments holding that there was no power and only State Government alone should pass orders u/s 14, is without any substance. In view of the above, this court is not willing to go into the merits of the application made by the petitioner as the petitioner has no locus standi to run the school as he is not the educational agency which can be allowed to manage the school. Even as per his own admission, the society which had started the school had become defunct and it was removed from the list of registered societies. The petitioner also had the benefit of an appeal and which was also rejected. He did not care to reply to the District Educational Officer, because his stand was that he has no power to resort to the direct payment system. Since the petitioner has no right to continue the management of the school, the question of his challenging the order passed by the authority will not arise. Hence, W.P. (MD) No. 4447 of 2010 is liable to be dismissed.

In view of the above, the contempt petition (MD) No. 699 of 2010 which arose on an interim order passed in the said writ petition, is also liable to be rejected by this court.

In W.P. (MD) No. 10736 of 2009, the petitioner seeks for grant of post approval. It must be noted that transfer of educational agency is referred to in Section 8 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973. Section 8 reads as follows:

Approval of transfer of permission.-(1)(a) Whenever there is any change in the constitution of the educational agency, that agency shall apply to the competent authority for approval of such change.

(b) Whenever the management of any private school is proposed to be transferred, the educational agency and the person to whom the management is proposed to be transferred may, before such transfer, apply jointly to the competent authority for approval of the transfer.

(c) On any transfer of the management of private school, without approval having been obtained for such transfer under clause (b), the transferee shall, if desires to run it as such, apply to the competent authority within three months of the date of the transfer, for approval of the transfer.

(d) An application under clause (a), clause (b) or clause (c) shall be in such form and contain such particulars as may be prescribed.

(2) On receipt of an application under sub-section (1), the competent authority shall

(a) if it is satisfied, after making such inquiry as it deems fit, that the educational agency will continue to maintain and manage or, as the case may be, that the transferee will maintain and manage, the private school, in accordance with the provisions of this Act and the Rules made there under, approve the change or, as the case may be, the transfer, subject to such conditions as it may impose; and

(b) communicate its decision to the applicant within a period of three months from the date of such receipt.

The reference made to Section 5-A by the petitioner in his communication has no relevance as it applies to the existing higher secondary schools. A perusal of Section 8 will clearly show that in case of any change in the constitution of the educational agency, that agency should apply to the competent authority for approval of such change. In the present case, it is not the case of any constitutional educational agency, it is the case where the educational agency has ceased to exist in view of defunct nature of the society. It is also not a case of transfer of the agency from one society to another society or another entity. In such circumstances, both transferor and transferee will have to jointly move the competent authority. As per Section 8(2), only if the competent authority was satisfied after taking into account all relevant circumstances, he can grant approval for the transfer of the educational agency and not otherwise.

When the counsel for the petitioner was repeatedly asked as to how he came to control of the defunct society and the school started by it, he could not give any clear answer. His answers were evasive. The only reliance was placed upon him was Section 42 of the Tamil Nadu Societies Registration Act, 1975. Section 42 reads as follows:

On dissolution, no member to receive profit.-If, upon the dissolution of any registered society, there shall remain after the satisfaction of all its debts and liabilities, any property whatsoever, the same shall not be paid to or distributed among the members of the said society, or any of them, but shall be given to some other registered society or to any association of persons having the same objects or objects similar to those of such registered society, to be determined by a special resolution or in default thereof by the court:

Provided that this section shall not apply to any society which shall have been founded or established by the contributions of shareholders, in the nature of a joint stock company.

(emphasis added)

It was not a case of either the members of the earlier defunct society passing a special resolution or as in the present case, due to default in passing a special resolution, a competent court granting permission. Further M. Ponnambalam had gone to a civil court to declare that the society had ceased to exist. In fact, u/s 44(3), the society had been declared as a defunct society. If at all, its erstwhile members wants restoration, they should move the authority u/s 44(5), failing which an appeal lies to the State Government. None of these contingencies have happened in the present case. It is surprising to note that the petitioner was invoking Section 42 without any meaning for the said contention.

The other contention raised by the counsel for the petitioner was that after he had registered the society in the year 1992, for the last 18 years, he is in control of the school and that the department was dealing with him as its correspondent. Therefore, there was a defacto recognition. It was also stated that since he had filed Form-VII before the jurisdictional District Registrar and the same was not returned, the form submitted is deemed to have been accepted. Once Form-VII was presented and filed before the Registrar under the Tamil Nadu Societies Registration Act, 1975, the education department will have to recognise the person whose names were found in Form-VII. Therefore, there was no dispute for the petitioner to continue and he is entitled to get post approval for the educational agency floated by him.

This argument is only stated to be rejected. It is not that any one can file Form VII and claim ownership of the property of the defunct society. As already noted, there was neither any special resolution by the defunct society nor any order of the court was issued in this regard. On the other hand, it is the petitioner who had been injuncted by a civil court in the suit filed by his brother Ponnambalam and the suit is still pending. The suit was purported to have been filed u/s 53-A of the Private Schools Act. Even the suit filed by a Private School Teachers Association is also pending.

It must be noted that the Registrar under the Tamil Nadu Societies Registration Act has no power to adjudicate the correctness of Form VII filed before him as held by a Full Bench of this court presided by P. Sathasivam, J. (as he then was) in C.M.S. Evangelical Suvi David Memorial Higher Secondary School Committee Karisal Vs. The District Registrar and Others,

Subsequently, a division bench presided by A.P. Shah, C.J. (as he then was) and V. Ramasubramanian, J., vide its judgment in R. Muralidaran and Others Vs. The District Registrar and Sidharth Heights Apartments Owners Association, held that the act of the Registrar of the society is only a ministerial act and he has no power to adjudicate.

Subsequently, an another division bench presided by Prabha Sridevan, J., in C. Dharmalingam Vs. The District Registrar, Office of the District Registrar, Madurai South, Palace Road, Madurai and others reported in 2010 (3) CTC 390 followed the judgment of the earlier Full bench.

Therefore, merely because Form VII was not returned by the Registrar, the petitioner do not become the owner or management of the school claiming to be a successor to a defunct society. The other contention that since for the last 18 years he was dealt with by the department do not take the case of the petitioner anywhere. To put it shortly, the petitioner''s claim to be in the control of the school is not legally authorised. He is an usurper of the property and the school management and has no authority to hold on to it.

In this context, the learned counsel for the impleaded respondent referred to a judgment of this Court in Evva Memorial Teacher Training Institute Vs. The Director of Teacher Education, Research and Training, The Director of Government Examinations, The Principal, District Institute of Education and Training and The Regional Director, National Council for Teacher Education, and referred to paragraph 25 which is as follows:

It is in recognition of the transferability of the managements that The Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, provides for the approval of any change in the constitution of the Educational Agency. Section 8 of the said Act enables the "Educational Agency" to apply for approval of any change in the constitution of the Educational Agency, provided the Educational Agency and the person to whom the management is proposed to be transferred, make a joint application to the Competent Authority. But what the said Act actually permits, is the transfer of management of the Educational Agency and not the transfer of the permission granted u/s 5 or the recognition granted u/s 11 of the said Act. In other words, there is no provision in The Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, for the transfer of an order of the Competent Authority granting permission u/s 5 or recognition u/s 11 of the Act.

A reference was also made to a division bench judgment of this court in Chikkaiah Naicker Education Board Vs. The State of Tamil Nadu reported in 2009 (4) CTC 305, wherein the division bench dealt with the status of a defunct society which was running a college. Reference was made to paragraph 13 of the said judgment, which reads as follows:

As already observed, Section 7(1)(b) of the Colleges Regulation Act can be invoked only by an educational agency which, in accordance with law, is entitled to perform its functions. There is no dispute that on and from 3.5.95 by the fact that the very society itself had become defunct, the registration having been cancelled and the society was dissolved, the educational agency was disabled even from functioning except to pass a special resolution to dissolve the society u/s 39 or for winding up u/s 40 of the Societies Act. Therefore, the contention of the learned Senior Counsel that the application made in Form-IV is valid cannot be accepted. Further, in law, educational agency in respect of the college established by a Board cannot transfer in favor of a new educational agency which was constituted after forming a new society, as the erstwhile Chikkaiah Naicker College Management Board and the Chikkaiah Naicker Education Society are different and distinct entities in the eye of law and the provisions of Section 7(1)(b) of the Colleges Regulation Act are not applicable for transfer of an educational agency.....

(Emphasis added)

Since the erstwhile society which was running the school had become defunct, the petitioner floating a new society controlled by his close family members and relatives and attempting to take over the school by relying upon certain irrelevant decisions / legal provisions, has no right to seek for either for a post approval for the so called transfer or attack the direct payment of salary resorted to by the Department. He has no right to question the same. Both writ petitions are misconceived, bereft of legal reasons and are liable to be rejected.

When the previous school run by the defunct society which was running a school, its properties cannot be transferred to any one and its properties cannot be alienated in any form without prior permission of the competent authority. The petitioner can never sit over the property without either the property being officially transferred to his so-called new society or exercise control over the said property without any authorisation. It is necessary to reproduce Section 31 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, which reads as follows:

Restriction on alienation of property of private school.-

(1) Notwithstanding anything contained in any other law for the time being in force or in any deed, document or instrument having effect by virtue of such other law-

(a) no property of a private school, shall except with the previous permission in writing of the competent authority, be transferred by way of sale, exchange, mortgage, charge, pledge, lease, gift or any other manner whatsoever; and

(b) if any such property is transferred without such permission, the transfer shall be null and void.

(2) The competent authority may-

(a) grant the permission under clause (a) of sub-section (1) if the transfer is made in furtherance of the purposes of the private school or of similar purposes approved by the competent authority and the assets resulting from the transfer are to be wholly utilised in furtherance of the said purposes; and

(b) when granting such permission, impose such conditions as it deems fit, to ensure that such assets are wholly utilised in furtherance of such purposes; but a contravention of any such condition shall not invalidate the transfer :

Provided that the permission shall not be refused under this section unless the applicant has been given an opportunity of making his representations.

(Emphasis added)

With reference to the property dispute or control over the management which is a civil dispute and it has to be resolved only in a civil court. Interpreting the scope of Sections 53 and 53-A, the Supreme Court in Swamy Atmananda and Others Vs. Sri Ramakrishna Tapovanam and Others, in the following passage found in paragraph 49 has held as follows:

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 therefor. 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)

Under these circumstances, both writ petitions will stand dismissed. The contempt petition also will stand dismissed. Parties are allowed to bear their own costs. Consequently connected miscellaneous petitions stand closed. Before parting with the case, it must be noted that with the officials of the educational department have no clue about dealing with schools run by a society, which becomes subsequently defunct. Without initiating any action in terms of the provisions of the Act, they have resorted to a least and soft option of resorting to direct payment system leaving the management to be controlled by persons who have no right to control over the same. The State Government (first respondent) is hereby directed to take appropriate steps within four weeks to secure the properties of the school including its right to run the management of the school. As a first step they can resort to appointing a Special Officer u/s 18-A of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 or take over the management u/s 34 of the Act. After taking over the management u/s 34, the Act u/s 35 also provides as to how the property of the school can be dealt with in case of relinquishment of control of the property. It is also made clear that the two suits pending before the Civil Courts at Tiruchirappalli cannot bar the Government taking a decision as they do not relate to Government exercising its power under the Private Schools Act and the prayer made in the two suits do not run counter to any claim by the Government.