V. Subramaniam vs State of Tamil Nadu and Others

N. Paul Vasanthakumar, J.—In W.P. No. 19260 of 2002, petitioner, who is the father of one Sathish alias Sathishkumar, a 5th standard student of the Panchayat Union Elementary School, Thudupatty, Erode District, prays for issuance of a writ of mandamus directing the State Government, respondent No. 1, to pay compensation of Rs. 6,00,000 for the death of his son due to the fall of compound wall of the school.

The respondent No. 3 in W.P. No. 19260 of 2002, who was the Headmaster of the school, has filed W.P. No. 14436 of 2008 praying to quash the order dated 14.5.2008 rejecting his request to retire him from service and to pay the terminal benefits, which was not granted due to the pendency of W.P. No. 19260 of 2002.

The facts leading to filing of these writ petitions are one and the same and the issue involved in both these writ petitions are interconnected. Hence, both the writ petitions are disposed of by this common order.

For the sake of convenience, the parties in this common order are referred to as per their rank in W.P. No. 19260 of 2002.

The case of the petitioner is that his son S. Sathish alias Sathishkumar, aged 10 years was studying in 5th standard in the Panchayat Union Elementary School, Thudupatty, Erode District and on 13.12.2000 at about 3.50 p.m., the respondent No. 3 in his capacity as Headmaster of the school directed the students including the petitioner''s son to clear the ground near the dilapidated compound wall of noon meal centre room by removing the grass and shrubs. While clearing the grass and shrubs, a portion of the compound wall fell on the petitioner''s son, viz., Sathish alias Sathishkumar. On coming to know the said incident, according to petitioner, respondent No. 3 rashly and negligently used a big hammer to break the debris and the hammer hit on the face and mouth of the said Sathish alias Sathishkumar, due to which the petitioner''s son died on the spot. F.I.R. was filed in Crime No. 505 of 2000 on the file of the Inspector of Police, Perundurai Police Station for offences under Sections 304A and 336 of Indian Penal Code on the very same day. Headmaster, respondent No. 3, was made as an accused and he was placed under suspension by the proceedings of the District Elementary Educational Officer, Erode dated 13.12.2000. According to the petitioner, petitioner''s son died due to negligence of the Headmaster of the school, who failed to exercise reasonable and proper care by providing precautionary measures to avoid the death of the deceased Sathish alias Sathishkumar. The petitioner submitted a petition to the respondents on 12.1.2002 and claimed compensation for the death of his 10 years old son. Since no action was taken to pay compensation, petitioner has filed W.P. No. 19260 of 2002 praying for a mandamus directing the respondent No. 1, viz., the State Government to pay compensation of Rs. 6,00,000 to the petitioner for the death of his son viz., Sathish alias Sathishkumar.

The Headmaster of the school, the respondent No. 3, who is also petitioner in W.P. No. 14436 of 2008 in his affidavit submitted that on 13.12.2000, while working as Headmaster of the Panchayat Union Elementary School, Thudupatty, Perundurai Block, Erode District, he was placed under suspension on the ground that a student died due to the collapse of a dilapidated compound wall. Petitioner filed O.A. No. 1013 of 2001 before the State Administrative Tribunal and challenged the order of suspension and an interim stay was granted on 27.3.2001. He was restored to service on 27.12.2001 and was posted at Panchayat Union Elementary School, Velampalayam and he joined duty in the said school. The respondent No. 3 was due to retire from service on reaching the age of superannuation on 31.12.2001. Since criminal case was registered against him in respect of the death of the student viz., Sathish alias Sathishkumar and the criminal case was pending in C.C. No. 101 of 2001 on the file of the Judicial Magistrate, Perundurai, petitioner was not allowed to retire by placing him under suspension. Petitioner was acquitted in the said Criminal Case in C.C. No. 101 of 2001 by the Judicial Magistrate, Perundurai, by judgment dated 1.12.2005 and no appeal was filed against the said acquittal order. According to the Headmaster, respondent No. 3, no departmental action was initiated against him and he could have been permitted to retire from the service w.e.f. 31.12.2001 by revoking the suspension due to the acquittal in the criminal case. Respondent No. 3 submitted representation to the District Elementary Educational Officer, Erode, on 13.12.2005 through the Additional Assistant Elementary Educational Officer, Perundurai and requested to revoke the suspension order and permit him to retire w.e.f. 31.12.2001. The said representation was forwarded to the District Elementary Educational Officer. Headmaster, respondent No. 3, was paid subsistence allowance at the rate of 50 per cent of his pay. Since no action was taken by the District Elementary Educational Officer, on the representation of the respondent No. 3, he filed W.P. No. 7065 of 2008 and challenged the order dated 31.12.2001 not permitting him to retire as well as placing him under suspension. The said writ petition was disposed of on 24.3.2008 by giving a direction to the District Elementary Educational Officer, Erode, to pass orders on the representation of the respondent No. 3 dated 13.12.2005 on merits and in accordance with law within a period of four weeks. The District Elementary Educational Officer, Erode, passed an order on 14.5.2008 and stated that the father of the child has filed W.P. No. 19260 of 2002 claiming compensation for which draft counter affidavit has been sent to the Director of Elementary Educational Officer and on approval by the Director, the same will be filed before this Court and only after orders are passed in the above writ petition, orders can be passed on the retirement request of the Headmaster, respondent No. 3. In view of the said stand taken by the District Elementary Educational Officer, Erode, in the said order dated 14.5.2008, both these writ petitions are clubbed together.

The Headmaster, respondent No. 3, filed counter affidavit in W.P. No. 19260 of 2002 contending that on 13.12.2000 when he was conducting classes, three students appeared to have gone near the dilapidated wall of noon meal centre and the wall collapsed and fell on the students. On coming to know the same, teachers as well as the respondent No. 3 immediately rushed the injured students to the hospital and unfortunately one student viz., Sathish alias Sathishkumar, son of the petitioner in W.P. No. 19260 of 2002 was declared dead by the doctors. Respondent No. 3 gave a complaint at 5.30 p.m. on the same day to the Inspector of Police, Perundurai Police Station and a case was registered in Crime No. 505 of 2000 u/s 174, Criminal Procedure Code. Respondent No. 3 denied the statement that he directed the students to clear the grass and shrubs near the dilapidated wall. He also denied having used hammer to clear the debris. The respondent No. 3 further stated that the incident was unfortunate one and the death was not due to his negligence or carelessness. According to the respondent No. 3, he wrote several letters to the higher authorities to repair the dilapidated wall. Parents of the students conducted road roko and agitations and consequently a criminal case was foisted against the respondent No. 3 which was taken on file as C.C. No. 101 of 2001 on the file of the Judicial Magistrate Court, Perundurai, for offences under Sections 304A and 336 of Indian Penal Code. Learned Judicial Magistrate, after trial, acquitted the respondent No. 3 by judgment dated 1.12.2005 holding that the respondent No. 3 had nothing to do with the said accident.

The respondent No. 2 filed counter affidavit and stated that during the interval in the afternoon session, Sathish alias Sathishkumar, a 5th standard student and some other students went near the dilapidated wall in the noon meal centre and unfortunately the major portion of the wall collapsed and fell on the pupils. The said Sathish alias Sathishkumar was fatally injured and other students got minor injuries. When the boys and other students cried, the Headmaster, the respondent No. 3 and some other teachers rushed to the spot and tried to recover the students from the debris immediately. It is also stated therein that the respondent No. 3 and other teachers brought the injured persons to the local hospital, where the said Sathish alias Sathishkumar was declared as dead. The other students were discharged from the hospital after getting treatment for the injuries. It is specifically stated in the counter affidavit that the respondent No. 3 and other teachers cannot be held responsible for the mishap and it is only accidental and unexpected one, for which the State Government is not liable to pay compensation. It is further stated that the respondent No. 3 has not used hammer to break the debris on Sathish. The negligence on the part of the respondent No. 3 is also denied.

The learned Counsel appearing for the petitioner submitted that the death of the student having taken place due to the fall of the compound wall, which was in a dilapidated condition, respondents are bound to pay compensation to the petitioner as the petitioner has lost his only son due to sheer negligence and inaction on the part of the respondents in repairing the dilapidated compound wall. The learned Counsel also submitted that the death had occurred during the school hours, i.e., at 3.50 p.m. and when the student is in the school premises, the respondents who are to be treated as in loco parentis, are responsible for the safety of the students and the respondents having failed to maintain the safety of the school buildings, they are negligent in their performance of duties, for which the respondents are bound to pay compensation to the petitioner for the death of his son.

The learned Counsel appearing for the Headmaster, respondent No. 3, submitted that there is no negligence on the part of the respondent No. 3 and in fact on 27.10.1999, the respondent No. 3 sent a representation to the Chairman, Panchayat Union, Perundurai, by stating that the compound wall is in dilapidated condition and immediate steps should be taken to repair the same and painting should be carried out for the entire school buildings and the compound wall. The learned Counsel also submitted that in the criminal case registered against the petitioner in C.C. No. 101 of 2001, the learned District Munsif-cum-Judicial Magistrate, Perundurai, gave a judgment on 1.12.2005 and held that the respondent No. 3 cannot be blamed for not repairing the compound wall as he had already submitted the representation to the Chairman, Panchayat Union, and there is no truth in the allegation that the respondent No. 3 directed the students to remove the grass and shrubs near the compound wall and that the respondent No. 3 is responsible for the death of the said Sathish alias Sathishkumar. The learned Counsel further submitted that the criminal court having given a finding in favour of the Headmaster, the respondent No. 3 and the death of the said Sathish alias Sathishkumar was due to the fall of the compound wall, respondent No. 3 is not liable to pay any compensation and if at all any compensation is to be paid only the respondent Nos. 1 and 2 can be ordered to pay the compensation.

The learned Government Advocate submitted that no direction could be issued to the respondent Nos. 1 and 2 for the unfortunate accident as the writ petition is not maintainable.

I have considered the rival submissions made by the learned Counsel for the petitioner in both the writ petitions, the learned Counsel for the respondent No. 3 in W.P. No. 19260 of 2002 as well as the learned Government Advocate.

Admittedly, ten years old boy by name Sathish alias Sathishkumar, who was the only son of the petitioner in W.P. No. 19260 of 2002, had died due to the collapse of the compound wall on him on 13.12.2000 at 3.50 p.m. The dilapidated nature of the compound wall was noticed by the Headmaster, respondent No. 3 and he had requested the Chairman, Panchayat Union, Perundurai, by representation dated 27.10.1999 to repair the compound wall and certified copy of the said letter dated 27.10.1999 was marked as Exh. D2 in the criminal case. On earlier occasion also the respondent No. 3 sent a communication to the Panchayat Union Commissioner on 22.7.1999, which was also marked as Exh. Dl. Both the said documents are produced before me. The respondent No. 3 was also acquitted from the criminal charges by the competent criminal court holding that the Headmaster, respondent No. 3, was not responsible for the accident in which the petitioner''s son died. A clear finding is given by the criminal court that there is no dereliction of duty on the part of the Headmaster of the School, respondent No. 3. It is also stated in the criminal court judgment that the respondent No. 3 was duty conscious and he was not responsible for the said accident. The said findings given by the criminal court has become final. Thus, it is evident that the collapse of the compound wall on the fateful day was not due to negligence on the part of the Headmaster, respondent No. 3 and only due to the negligence of the subordinate officials of the respondent Nos. 1 and 2, who are bound to maintain the Panchayat Union School Building and its surrounding in a proper manner, without causing any damage to the students, who are of tender age.

Respondent No. 3 had repeatedly written to the authorities to carry out the repairs of the compound wall and, therefore, he cannot be blamed for the dereliction of duty. The officials of the respondent Nos. 1 and 2, who are bound to maintain the school buildings and its premises are to be held responsible for not maintaining the school buildings and compound walls in a proper manner. Hence the accident viz., fall of the compound wall has happened only due to negligent and indifferent attitude adopted by the subordinate officials of the respondent Nos. 1 and 2 in not maintaining the school compound wall and its buildings in a proper manner. There is no other version suggested for the death of the petitioner''s son viz., Sathish alias Sathishkumar, even by the respondent Nos. 1 and 2. In the absence of any other contra averments even as per the counter affidavit filed by the respondent No. 2,I am of the view that the death of the petitioner''s son had taken place only due to the fall of the compound wall, for which the respondent Nos. 1 and 2 are vicariously liable to pay compensation to the petitioner in W.P. No. 19260 of 2002.

The issue as to whether compensation can be ordered in a writ petition filed under Article 226 of Constitution of India, came up for consideration in the following decisions:

(i) The Hon''ble Supreme Court in the decision in Saheli, A Women''s Resources center, Through Ms Nalini Bhanot and Others Vs. Commissioner of Police Delhi Police Headquarters and Others, , awarded compensation for the death of a nine years old child due to the beating and assault by the police officer. In paras 11 to 15 Hon''ble Supreme Court held as follows:

(11) An action for damages lies for bodily harm which includes battery, assault, false imprisonment, physical injuries and death. In cases of assault, battery and false imprisonment the damages are at large and represent a solatium for the mental pain, distress, indignity, loss of liberty and death. As we have held hereinbefore that the son of Kamlesh Kumari aged 9 years died due to beating and assault by the S.H.O., Lal Singh and as such she is entitled to get the damages for the death of her son. It is well settled now that the State is responsible for the tortious acts of its employees. The respondent No. 2, Delhi Administration, is liable for payment of compensation to Kamlesh Kumari for the death of her son due to the beating by the S.H.O. of Anand Parbat Police Station, Lal Singh.

(12) It is convenient to refer in this connection the decision in Joginder Kaur v. Punjab State 1969 ACJ 28 (P&H), wherein it has been observed that:

In the matter of liability of the State for the torts committed by its employees, it is now the settled law that the State is liable for tortious acts committed by its employees in the course of their employment.

(13) In State of Rajasthan v. Vidhyawati 1958-65 ACJ 296 (SC), it has been held that:

Viewing the case from the point of view of first principles, there should be no difficulty in holding that the State should be as much liable for tort in respect of a tortious act committed by its servant within the scope of his employment and functioning as such, as any other employer. The immunity of the Crown in the United Kingdom, was based on the old feudalistic notions of justice, namely, that the King was incapable of doing a wrong and, therefore, of authorising or instigating one, and that he could not be sued in his own courts. In India, ever since the time of the East India Company, the sovereign has been held liable to be sued in tort or in contract, and the common law immunity never operated in India...

(14) In Peoples'' Union For Democratic Rights Through Its Secretary and Another Vs. Police Commissioner, Delhi Police Headquarters and Another, , one of the labourers who was taken to the police station for doing some work and on demand for wages was severely beaten and ultimately succumbed to the injuries. It was held that the State was liable to pay compensation and accordingly directed that the family of the aforesaid labourer will be paid Rs. 75,000 (sic Rs. 50,000) as compensation.

(15) On a conspectus of these decisions we deem it just and proper to direct the Delhi Administration, respondent No. 2, to pay compensation to Kamlesh Kumari, mother of the deceased, Naresh, a sum of Rs. 75,000 within a period of four weeks from the date of this judgment. The Delhi Administration may take any appropriate step for the recovery of the amount paid as compensation or part thereof from the officers who will be found responsible, if they are so advised. As the police officers are not parties before us, we state that any observation made by us in justification of this order shall not have any bearing in any proceedings specially criminal prosecution pending against the police officials in connection with the death of Naresh. The writ petitions are disposed of accordingly.

(ii) Maintainability of the writ petitions claiming compensation against the State''s inaction is considered by the Supreme Court in the decision in S.S. Ahluwalia Vs. Union of India and Others, . In para 2, the Supreme Court gave the directions, which reads thus:

...Therefore, it would be appropriate for us to direct the High Courts of Delhi, Rajasthan, Orissa, Punjab and Haryana, Himachal Pradesh, Patna, Madhya Pradesh, Allahabad and Bombay in the States of Delhi, Rajasthan, Orissa, Haryana, Himachal Pradesh, Bihar, Madhya Pradesh, Uttar Pradesh, Maharashtra and Goa to deal with the matter in respect of the allegations made herein in respect of the State falling in their jurisdiction by treating the writ petition as a petition filed in that High Court. These proceedings, therefore, shall stand transferred to the respective High Courts. A copy of the petition with annexures and response of the respective State Governments shall be sent to the High Court for appropriate action.

The above direction was given since the claim in those writ petitions were made directly before the Supreme Court seeking compensation to the victims of riot, which took place in various places due to the assassination of Mrs. Indira Gandhi.

(iii) In National Human Rights Commission v. State of Gujarat (2004) 8 SCC 610, the Supreme Court directed the High Court of Gujarat to consider the claims of riot victims of communal clash arose in the State of Gujarat due to the Godhra incident, which reads as follows:

(8) In our view, these all are issues which can be raised in the pending writ petitions before the High Court since the High Court would have the jurisdiction to consider each of the grievances raised. In fact, having regard to the nature of the claim it will be more appropriate, that the High Court should deal with the issues raised in the first instance.

(iv) The liability of the State to pay compensation even against the destruction of the property during communal clash or riot or disorder was considered by the Full Bench of this Court in the decision in P.P.M. Thangaiah Nadar Firm and Others Vs. The Government of Tamil Nadu, . In para 11, the Full Bench framed the following questions:

(1) What is the effect of deletion of Article 19(1) (f)?

(2) What is the liability of the State regarding loss of life or damage to the properties during rioting?

(3) What is the remedy available to a victim, that is to say, whether a writ petition can be filed or the victim is required to file a suit for claiming compensation?

Question No. 2 relates to the liability of the State regarding loss of life or damage to the properties during rioting, which is answered by the Full Bench in para 38 of the judgment, which reads as follows:

(38) ...The State is not necessarily liable in every case where there is loss of life or damage to the property during rioting. Where, however, it is established that the officers of the State ordained with duty of maintaining law and order have failed to protect the life, liberty and property of person and such failure amounts to dereliction of duty, the State would be liable to pay compensation to the victim. Such liability can be enforced through public law remedy or common law remedy. Where necessary facts to establish culpable negligence on the part of the officials are available, High Court under Article 226 can issue appropriate direction. Where, however, the main aspect relating to culpable negligence of the officer is seriously disputed, filing of suit may be more appropriate remedy. No hard and fast rule can be laid down on these aspects and obviously the availability of remedy under Article 226 would depend upon the facts and circumstances of each case. Compensation for loss to the property can also be claimed under Article 226 and merely because right to property has been deleted from the Chapter of Fundamental Rights and has been recognised as a constitutional right, would not disentitle the High Court to examine that question in any appropriate case.

(v) In the decision in Lilly Stanislaus Vs. The Chairman, T.N.E.B., The Chief Engineer, T.N.E.B. and The Assistant Engineer, T.N.E.B., , this Court granted compensation of Rs. 90,000 to the widow of a person, who was electrocuted due to negligence of the Electricity Board. In the said judgment, Hon''ble Mr. Justice P. Jyothimani, followed the earlier decision of the Supreme Court in Smt. Kumari Vs. State of Tamil Nadu and others, , wherein a 6 years old boy died falling in 10 ft deep uncovered sewerage tank in the city of Madras was ordered compensation of Rs. 50,000 along with 12 per cent interest per annum from 1.1.1990.

(vi) In the decision reported in Lakshmana Naidu (deceased) and Others Vs. The State of Tamil Nadu, , Hon''ble Mr. Justice K. Mohan Ram, in para 12 held as follows:

(12) The High Court, being protector of civil liberties of the citizen, has not only the power and jurisdiction, but also an obligation to grant relief in exercise of its jurisdiction under Article 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings. The State, of course, has the right to be indemnified by and take any such action as may be available to it against the wrongdoer in accordance with law through appropriate proceedings. The relief in exercise of the power under Article 226 of the Constitution of India would be granted once it is established that there has been infringement of the fundamental rights of the citizen.

In the said decision a total compensation of Rs. 5,00,000 was ordered to the legal heirs.

(vii) In Chief Secretary to the Government of Tamil Nadu v. R. Selvam 2004 WLR 611, the Division Bench of this Court consisting of the Hon''ble Mr. Justice A.S. Venkatachalamoorhy (as he then was) and Hon''ble Mr. Justice P.K. Misra, confirmed the order of the Hon''ble Mr. Justice P. Sathasivam, (as he then was) in awarding Rs. 5,00,000 to the parents of one medical college student, who was killed in college hostel by the miscreants. The Division Bench in para 17 of its judgment held as follows:

(17) ...The parents while admitting their children, be it a boy or a girl, do so with the fond hope that their wards will be properly looked after. The hostel run by the Thanjavur Medical College is not a commercial establishment. It is the bounden duty of the hostel authorities to take every reasonable, possible and necessary step in providing the security arrangements. They have to be more careful and vigilant when they take the responsibilities of providing boarding and lodging for the girl students. In fact this Court is surprised with the stand taken by the appellants in the counter affidavit filed in the writ petition to the effect that they are not responsible since no separate amount was collected under the head ''for security arrangements''.

(viii) In R. Dhanalakshmi v. Government of Tamil Nadu 2004 WLR 346, the Hon''ble Mr. Justice D. Murugesan ordered to pay a sum of Rs. 9,00,000 to the legal heir of a person, who was killed while in custody.

(ix) In C. Chinnathambi Vs. The State of Tamil Nadu and Others, , Hon''ble Mr. Justice V.S. Sirpurkar (as he then was) had awarded compensation of Rs. 1,50,000 with 12 per cent interest per annum to each of the parents of two school students who died when a water tank broke and fell on them. In the said decision in para 5, the responsibilities of the school authorities are emphasised, which reads thus:

(5) Right to life enunciated in Article 21 has time and again been recognised by the Supreme Court and in its various ramifications. This was a case where the two innocent children had gone to the school and the accident actually took place during school tours. Even if it is considered that the said tank had been constructed by the parent-teachers association it was undoubtedly the responsibility of the school authorities to see that the tank was properly constructed and erected and that it should not have been hazardous to the lives of the children. There can be no dispute that in this case school authorities have not been careful enough to see that the construction was proper and in keeping with the rules. It beats one''s understanding, as to how a tank which was constructed early in 1983-84 would collapse all of a sudden within eight years of its construction, i.e., on 12.10.1992. The things do speak for themselves. There can be least doubt that the school authorities were not vigilant to their duties and that this being the government school the government would have a liability. There is no dispute that two young lives have perished predominantly because of the lack of care on the part of the school authorities. In my opinion, the compensation of Rs. 5,000 by way of ex gratia payment would be a cruel joke. The petitioners have claimed the compensation of Rs. 1,50,000 each in their writ petitions.

(x) In C. Thekkamalai v. State of Tamil Nadu 2006 WLR 13, the Division Bench of this Court consisting of Hon''ble Chief Justice A.P. Shah and the Hon''ble Justice F.M. Ibrahim Kalifulla, enhanced the compensation from Rs. 75,000 to Rs. 5,00,000 to the person who was illegally arrested and raped by the Sub-Inspector of Police. In paras 8 to 10 the Division Bench held as follows:

(8) We find considerable substance in the submissions of learned Counsel for the appellant. Where a heinous crime of rape committed by the police personnel, who are public functionaries, the matter clearly relates to the violation of basic human rights as well as Fundamental Right guaranteed under Article 21 of the Constitution and the victim would be entitled to a fair and reasonable compensation. It is reported that the concerned Sub-Inspector was convicted by the trial court in S.C. No. 90 of 1992 under Sections 366, 376 (2) (a) (i), 384 and 342 of Indian Penal Code and sentenced to suffer rigorous imprisonment for ten years and to pay fine amount. The trial court also directed the accused to pay Rs. 2,00,000 and Rs. 50,000 as compensation to Lakshmi and Thekkamalai respectively. In the appeal filed by the Sub-Inspector of Police, the conviction under Sections 366 and 376 (2) (a) (i) of Indian Penal Code as well as the payment of Rs. 2,00,000 as compensation to the victim Lakshmi was confirmed by this Court. It appears that the amount of compensation has not been paid by the accused who is presently behind the bars.

(9) In our opinion, the ends of justice would be served if the amount of compensation is enhanced from Rs. 75,000 to Rs. 5,00,000. It is brought to our notice that pursuant to the order passed by the learned single Judge a sum of Rs. 85,000 (Rs. 75,000 towards interim compensation and Rs. 10,000 towards rehabilitative measures) has already been paid to the victims Lakshmi and her husband Thekkamalai. We, therefore, direct the State Government to pay the balance amount of Rs. 4,15,000 (rupees four lakh fifteen thousand), with simple interest at the rate of 6 per cent per annum from the date of the order of the learned single Judge till date of payment within a period of eight weeks from today. Out of the total amount, i.e., Rs. 4,15,000 plus interest accrued on the said amount, a sum of Rs. 5,00,000 (rupees five lakh) shall be invested in the name of Lakshmi in a fixed deposit, initially for a period of three years, with Tamil Nadu Power Finance Corporation and she would be entitled to receive the interest accrues on such deposit once in three months. The remaining amount shall be released to the appellant and his wife Lakshmi jointly. State is at liberty to take steps to recover the amount of compensation so paid to the victims from the concerned delinquent police personnel by taking appropriate steps in accordance with law.

(10) We further direct the State Government to consider the application of Lakshmi for allotment of agricultural land under THADCO land purchase scheme and if she identifies the land, the same shall be allotted to her at concessional rate in accordance with the scheme.

From the counter affidavit filed by respondent No. 2, it is clear that the death of the petitioner''s son is not due to negligence of the Headmaster of the school. The said statement also establishes a fact of negligence on the part of subordinate officials of the respondent Nos. 1 and 2 in not maintaining the school buildings and its surrounding areas, particularly compound wall in a proper manner.

The Hon''ble Supreme Court in Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., , which was approved by the Constitution Bench judgment in the case of T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others, and also by the recent Constitution Bench judgment made in Ashoka Kumar Thakur Vs. Union of India (UOI) and Others, , held that right to education up to the age of 14 years is a fundamental right guaranteed to a child. Thus, it is incumbent on the respondent Nos. 1 and 2 and those who are in management of the educational institutions to give proper and safe educational institutions, then only the said right guaranteed under Article 21-A will be a meaningful fundamental right. The safety of the students studying in the schools should be given topmost priority and no defence is available to the State to deny it. The Hon''ble Supreme Court in the decision reported in The Chandigarh Administration and Others Vs. Mrs. Rajni Vali and Others, , held that want of finance cannot be a reason to deny proper education to the children including the payment of proper salary to the teachers. The Supreme Court categorically held that it is for the authorities who are running the institutions to find out the source for running the institution. In the said decision the Supreme Court in paras 6 and 10 held as follows:

(6) .. imparting primary and secondary education to the students is the bounden duty of the State administration. It is a constitutional mandate that the State shall ensure proper education to the students on whom the future of the society depends. In line with this principle, the State has enacted statute and framed rules and regulations to control/regulate establishment and running of private schools at different levels. The State Government provides grant-in-aid to private schools with a view to ensure that the standard of teaching does not suffer on account of paucity of funds. It needs no emphasis that appointment of qualified and efficient teachers is a sine qua non for maintaining high standard of teaching in any educational institution. Keeping in mind these and other relevant factors this Court in number of cases has intervened for setting right any discriminatory treatment meted out to teaching and non-teaching staff of a particular institution or a class of institutions.

(10) Coming to the contention of the appellants that the Chandigarh Administration will find it difficult to bear the additional financial burden if the claim of the respondent Nos. 1 to 12 is accepted, we need only say that such a contention raised in different cases of similar nature has been rejected by this Court. The State Administration cannot shirk its responsibility of ensuring proper education in schools and colleges on the plea of lack of resources. It is for the authorities running the Administration to find out the ways and means of securing funds for the purpose. We do not deem it necessary to consider this question in further detail. The contention raised by the appellant in this regard is rejected...

(Emphasis supplied)

The respondent No. 1 herein in the matter of fire accident occurred in Sri Krishna Aided Primary School, Kumbakonam, Thanjavur District on 16.7.2004, appointed a Commission of Inquiry headed by the Hon''ble Mr. Justice K. Sampath. In the notification appointing the Commission of Inquiry, the State Government requested the Commission to suggest the reform measures needed to ensure that such incidents do not recur. The Commission of Inquiry submitted its report on 13.7.2005, which was tabled before the Tamil Nadu Legislative Assembly on 2.9.2006 and the said Commission recommendations were accepted by the respondent No. 1. The Commission gave a finding that the accident was due to the carelessness of the noon meal staff, the callous indifference and criminal insensitivity on the part of the management running the school, compounded and abetted by the department concerned, which failed to implement and enforce the laws and safety standards. The Commission in its report suggested various measures to be taken to preserve the safety of the school students. In the said Inquiry Commission report it is pointed out that the Panchayat Union and Municipal Schools are improperly maintained. The Commission also pointed out the necessity to have compound walls in the schools and the school buildings are to have licence issued under the Tamil Nadu Buildings Licensing Act, 1966.

In the counter affidavit filed by the respondent No. 2 nowhere it is stated that the Panchayat Union Elementary School, Thudupatty, Erode District, was having a valid building licence issued by the competent authority. Hence, it is beyond doubt that due to the inaction on the part of the authorities, who are running the institution, the compound wall collapsed, which caused the loss of precious life of a 5th standard student, aged 10 years. Since the negligence is proved on the part of the subordinate officials of the respondent Nos. 1 and 2, which has caused the death of the petitioner''s son and as there is no dispute with regard to the manner in which the petitioner''s son died, I am of the view that the petitioner has made out a case to issue a writ of mandamus. The respondent Nos. 1 and 2 are not justified in contending that for claiming compensation, the petitioner cannot file this writ petition.

On the basis of my above findings as well as the decisions referred above, it is evident that the respondent Nos. 1 and 2 are vicariously liable to pay compensation for the death of petitioner''s son, aged about 10 years.

Now the only question to be decided is with regard to the quantum of compensation payable to the petitioners.

The Supreme Court in the decision reported in Lata Wadhwa and Others Vs. State of Bihar and Others, , considered the compensation payable for the loss of a child between the age group of 5 and 10 years. In the said decision, for the children of the age group between 5 and 10 an award of a sum of Rs. 2,00,000 was considered as the reasonable amount.

Following the said decision of the Supreme Court and having regard to the fact that the petitioner has lost his only son due to inaction of the subordinate officials of the respondent Nos. 1 and 2, I hold that the respondent Nos. 1 and 2 are liable to pay a compensation of Rs. 2,00,000 to the petitioner with interest at the rate of 10 per cent per annum from the date of death of the petitioner''s son viz., 13.12.2000. By calculating interest at the rate of 10 per cent for about 71/2 years, the interest amount comes to Rs. 1,50,000. Thus, a total amount of Rs. 3,50,000 is directed to be paid to the petitioner by the respondent Nos. 1 and 2 within a period of six weeks from the date of receipt of copy of this order. W.P. No. 19260 of 2002 is allowed with the above direction.

Since the respondent No. 3 Headmaster is found not guilty of any negligence and W.P. No. 19260 of 2002 having been disposed of by giving direction to respondent Nos. 1 and 2 to pay compensation, petitioner in W.P. No. 14436 of 2008 shall be deemed to be retired from service w.e.f. 31.12.2001. The respondent in W.P. No. 14436 of 2008 is directed to sanction and pay the terminal benefits payable to the petitioner within a period of three months from the date of receipt of copy of this order.

Both the writ petitions are ordered with the above directions. No costs. Connected miscellaneous petitions are closed.