S. Yesudhas vs The Director of Elementary Education and Others

Satish K. Agnihotri and R. Sudhakar, JJ.—This writ appeal has been filed challenging the order of the learned Single Judge, passed in W.P.(MD) No. 9824 of 2008, dated 03.09.2010, dismissing the writ petition filed by the appellant seeking to quash the proceedings of the 1st respondent, dated 22.09.2008 and the even dated consequential order of the 2nd respondent and also to issue a direction to respondents 1 to 2 to reject the appointment of the 4th respondent as the Correspondent of St. Peter''s Primary School, Chekkal, Thirupparappu Post, Kanyakumari District. Heard the learned counsel for the appellant, the learned Special Government Pleader appearing for the official respondents 1 to 3 and the learned counsel appearing for respondents 4 to 6.

It is seen from the records that earlier the respondents 4, 5 and 6 herein filed a writ petition in W.P.(MD) No. 11710 of 2006 seeking to issue a writ of mandamus, directing the 2nd and the 3rd respondents herein to grant approval to the appointment of the 4th respondent herein as the correspondent of the above said School and also to disburse grant-in-aid towards the salary to the teachers, since June, 2006. In that writ petition, the present appellant was arrayed as Respondent No. 4. However, for whatever reason, he was not heard and the writ petition came to be disposed of with a direction to the 1st respondent to consider the plea made by the petitioners therein, namely the respondents 4 to 6 herein. Aggrieved by the said order, the appellant herein filed Writ Appeal in W.A.(MD) No. 466 of 2007, contending that though he was a party to the writ petition, the writ petition came to be disposed of, without hearing him. Accepting the plea made by the appellant, a Division Bench of this Court directed the 1st respondent to consider the objection of the appellant also, before taking any decision on the plea made by the respondents 4 to 6 herein. Thereafter, the appellant submitted his objection before the 1st respondent and after considering the issue, the first respondent, namely, the Director of Elementary Education, accepted the plea of the respondents 4 to 6 and passed order, dated 22.09.2008, directing the 2nd respondent, namely, the District Elementary Educational Officer, to pass consequential order approving the appointment of the 4th respondent as the Correspondent of the School. Accordingly, the 2nd respondent passed an order, dated 22.09.2008, approving the appointment of the 4th respondent as the Correspondent of the School. Challenging those two orders, the appellant herein filed the Writ Petition in W.P.(MD) No. 9824 of 2008.

Before the learned Single Judge, the contention raised by Mr. K.N. Thampi, the learned counsel for the writ petitioner, who is also the counsel for the appellant herein, was that in respect of the property in which the school is functioning, the appellant/petitioner has an agreement of sale in his favour, executed by Rev. Fr. A. Peter, the founder of St. Peter''s Primary School, Chekkal, Thirupparappu Post, Kanyakumari District and the appellant has paid a part of the consideration and therefore he is entitled to the Management of the School and hence the claim of respondents 4, 5 and 6 for approval/recognition of the appointment of the 4th respondent as the Correspondent of the School should not be done, as he is the original owner of the property. The said contention was repelled by Mr. Isaac Mohanlal, the learned counsel for respondents 4 to 6, contending that in respect of the same property, Rev. Fr. A. Peter has already executed a sale deed in favour of respondents 5 and 6, in the year 1986 and since then they continue to run the school, which is now consisting of classes upto higher secondary and further the 4th respondent is already functioning as the Correspondent of the School for Classes 6 to 12.

In the light of the contentions raised, it was noticed by the learned Single Judge that the claim of the present appellant/writ petitioner, insofar as the property is concerned, is the subject matter of a civil suit where the appellant had lost before two lower courts and the matter is pending before this Court in Second Appeal in S.A.(MD) No. 892 of 2005. In such view of the matter, the learned Single Judge found that the approval/recognition of the appointment of the 4th respondent as the correspondent of primary school sought for by the respondents 4 to 6 and approved by the 1st respondent and the consequential order passed by the 2nd respondent were in order and dismissed the writ petition. Challenging the same, the present writ appeal has been filed.

We notice that the school in question is being run on grant-in-aid by the Tamil Nadu Educational Department and the Management is bound to get recognition by the Department concerned, in terms of Rule 10 of the Grant-in-aid Code of the Tamil Nadu Education Department, which reads as follows:

Management.--Every institution on behalf of which aid is sought shall be under the management of one or more persons recognized by the department, who in the capacity of proprietors or of trustees, or of members of a committee elected by Society or Association by which the institution is maintained, shall undertake to be answerable for the maintenance of the institution and the fulfilment of all the conditions of recognition and aid including the due enforcement of such rules of discipline as are prescribed from time to time.

The management may, with the approval of the department, appoint a person as Correspondent to transact the current business of the institution with the department.

Mr. K.N. Thampi, learned counsel for the appellant, tried to buttress his argument, by placing reliance on Section 8 of the Tamil Nadu Recognized Private Schools (Regulation) Act 1973 and Rule 7 of the Tamil Nadu Recognized Private Schools (Regulation) Rules 1974, which read as under, "Section 8. 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...

Rule 7. Approval of transfer of permission.--(1) The competent authorities to approve any change in the constitution of the educational agency or to approve the transfer of the management of any private school shall be the Chief Educational Officer concerned, in respect of Pre-primary, Primary and Middle schools and Joint Director of School Education (Secondary Eduction) in respect of High Schools...

contended that the 1st respondent authority did not have the jurisdiction to pass the impugned proceedings.

We have perused the above said provisions and Rule 10 of the Tamil Nadu Education Department Grant-in-Aid Code. Section 8 of the Act clearly provides that if there is any change in the constitution of the educational agency, that agency shall apply to the competent authority for approval of such change.

In this case, the issue is not in respect of change in the constitution of educational agency or transfer of management of a private school and what has been sought for is approval/recognition of appointment of a correspondent of the aided primary section of the school and that is provided under Rule 10 of the Grant-in-aid Code of the Tamil Nadu Education Department. There is no specific authority stated therein, except indicating that it is the "Department" to recognise the appointment of a correspondent. Therefore, we do not find any infirmity in the order of the 1st respondent in granting such recognition to 4th respondent as the correspondent of the primary section of the school, for the purpose of receiving grant-in-aid. In any event, we are also able see from the order of the 1st respondent that the 4th respondent is already functioning as the Correspondent of the same School for classes 6 to 12 and that has been taken note of by the 1st respondent while directing the 2nd respondent to grant approval/recognition for the appointment of the 4th respondent as the Correspondent of the school for primary sections. Further more, it is clearly stated in the impugned proceedings that such approval/recognition is granted subject to the outcome of the second appeal stated supra. Therefore, we find no infirmity in the order of the learned Single Judge. Accordingly, the writ appeal is dismissed. No costs. Connected M.P.(MD) No. 1 of 2011 is also dismissed.