In the High Court of Judicature at Madras Dated: 24.9.2008 Coram: The Honourable Mr.Justice S.J.Mukhopadhaya and The Honourable Mr.Justice V.Dhanapalan O.S.A.Nos.47 and 58 of 2007 & M.P.No.2 of 2007 in O.S.A.No.58 of 2007 1. Dr.Prakasam, Chairman, Association of University Teachers, Pachaiyappa's College Unit, Chennai. 2. Prof.Munikrishnan, Executive Committee Member, Association of University Teachers, Pachaiyappa's College Unit, Chennai. . Appellants in both the O.S.As. (Applicants in the Applications) vs. 1. The Advocate General, High Court, Madras. . First respondent in both the O.S.As. (1st Respondent ) 2. Administrator General and Official Trustee, High Court Building, Chennai-600 104. .. (Respondents 1 & 2) 3. P.V.Kalyanasundaram 4. S.Seran 5. M.K.Mohan .. Respondents 2 to 5 in O.S.A.No.47 of 2007 (Applicants 1 to 3) 2. Pachaiyappa's Board of Trust, Pachaiyappa's College Campus, Poonamallee High Road, Chennai. .. Respondent No.2 in O.S.A.No.58 of 2007 (3rd Respondent) https://hcservices.ecourts.gov.in/hcservices/ 3. V.Parthasarathy (Respondent No.3 impleaded as party-respondent vide order dated 21.8.2008 in M.P.No.1 of 2008 in O.S.A.No.58 of 2007) .. Respondent No.3 in O.S.A.No.58 of 2007 (3rd Respondent) Original Side Appeal No.47 of 2007 against the order dated 4.1.2007 passed by the single Judge in Application No.4884 of 2006 on the file of this Court. Original Side Appeal No.58 of 2007 against the order dated 4.1.2007 passed by the single Judge in Application No.4224 of 2005 on the file of this Court. For appellants in both the O.S.As: Mr.R.Yashod Vardhan, Senior Counsel for Mr.R.Sunil Kumar For respondent No.1 in both the appeals : Mrs.Bhavani Subbarayan, Spl.G.P. For respondent No.2 in O.S.A.No.47 of 2007 :Mr.N.Adhinathan, AG & OT, High Court, Madras and Mr.M.Devendran for AG & OT, High Court, Madras For respondent No.2 in O.S.A.No.58 of 2007 : for Pachaiyappa's Board of Trust: Mr.N.Adhinathan, AG & OT, High Court, Madras. and Mr.M.Devendran for AG & OT, High Court, Madras For respondent No.3 in O.S.A.No.58 of 2007 : Ms.G.Thilakavathi Common Judgment S.J.Mukhopadhaya,J As both these Original Side Appeals (for short, 'the OSAs') have been preferred by one and the same appellants, against the common impugned order dated 4.1.2007 passed by the learned single Judge in Application No.4884 of 2006 (in O.S.A.No.47 of 2007) and https://hcservices.ecourts.gov.in/hcservices/ Application No.4224 of 2005 (in O.S.A.No.58 of 2007), which Applications have been disposed of along with the various other Applications, the OSAs. were heard together and disposed of by this common judgment. 2. The OSAs. relate to modification of the Scheme of the Management of Pachaiyappa's Charities, framed by the Supreme Court of India (Equity Side) and the High Court of Judicature at Madras, dated 12.2.1909, modified from time to time, by orders dated 19.07.1920, 14.12.1920 and 16.07.1963. 3. Application No.4884 of 2006 has been filed to accept the proposed five amendments and to amend Clauses 11(a), 11(f), 11(i), 12 and 28 of the Scheme for the Management of Pachaiyappa's Charities, as detailed in the affidavit filed in support of A.No.4884 of 2006. 4. Application No.4224 of 2005 has been filed to modify the Scheme of the Degree farmed by the Court on 12.2.1909, as modified on 19.7.1920 and 14.12.1920 and 16.7.1963, as set out in paragraph 10(a) to (g) of the affidavit filed in support of A.No.4224 of 2005. 5. By the impugned common order dated 4.1.2007, the learned single Judge disposed of the Applications under challenge in these OSAs, along with the various other Applications. The present OSAs. have been preferred by the third parties, ie. the applicants in Application No.4224 of 2005. 6. In view of the submissions and suggestions made by the learned counsel appearing for the respective parties, the OSAs. could be disposed of by modifying a part of the Clauses of the Scheme Decree insofar as they relate to Clause 11(b) of the Scheme Decree providing for qualification of Trustees. Thus, it is not necessary to notice the rival contentions at this stage. 7. Learned Senior Counsel appearing for the appellants (applicants-third parties) initially challenged the amendment made to Clause 12 of the amended Scheme Decree as was ordered by the learned single Judge in the impugned common order dated 4.1.2007; it was accepted that the appellants (applicants-third parties) had not raised any objection before the learned single Judge at the time of hearing of the respective Applications under challenge. 8. At this stage, it may be mentioned that initially, Pachaiyappa's Charities (a Trust) was run by one College, namely, Pachaiyappa's College, at Chennai, which had a Council known as Pachaiyappa's College Council; subsequently, number of Schools/Colleges/other educational institutions were opened by the Trust. In view of increase in number of educational institutions run https://hcservices.ecourts.gov.in/hcservices/ by the Trust, for the purpose of Election of the Trustees, the parties thought it fit and proper to seek for amendment of the Scheme Decree. Accordingly, respective Application(s) were preferred by one or other parties before the learned single Judge, which were disposed of by the learned single Judge, by the common impugned order dated 4.1.2007. 9. It is stated in the affidavit filed in support of the A.No.4224 of 2005 before the learned single Judge, prayer was made to incorporate certain amendments in Clause 11 of the Scheme Decree providing for qualification of the Trustees, etc. 10. Under Clause 12(b) of the Existing Scheme Degree as it stood after the modification of the Scheme Degree by the orders dated 12.2.1909, 19.07.1920, 14.12.1920 and 16.7.1963 as on the date of hearing of these OSAs, the Pachaiyappa's College Council consisted of certain members, which reads as follows: "Clause 12(b): The College Council shall consist of the following members: The Principal of Pachaiyappa's College The Professors of the College The Headmaster of the High School at Madras One member who shall be elected annually by the Board of Trustees shall be eligible for re- election. One member of the College Staff who shall be elected annually by the members of the College Staff who are not ex-officio members of the Council shall be eligible for re-election." 11. As Pachaiyappa's College Council only consisted of the Principal of Pachaiyappa's College, the Professor of Pachaiyappa's College and Headmaster of the High School at Madras (Chennai), with an object to give an opportunity to all the other educational institutions, respondents 3 to 5 in O.S.A.No.47 of 2007, have filed Application No.4884 of 2006 before the learned single Judge, seeking for amendment of Certain Clauses of the Scheme Degree for the Management of Pachaiyappa's Charities (Trust) as detailed with the prayer/Clauses extracted in the affidavit(s) filed in support of the Application(s) before the learned single Judge and the learned single Judge disposed of Application Nos.4884 of 2006, along with Application No.4224 of 2005, including all the other Applications, relevant portion of which is quoted below: " ... 4. In the first application alone, amendment of clause 11(b) of the scheme decree is sought for by making it clear that the Graduates of https://hcservices.ecourts.gov.in/hcservices/ Pachaiyappa's Colleges covered under the scheme decree as it stands today shall include graduates, post graduates and research scholars from all the six colleges now being run by the Pachaiyappa's Trust as on date. Nobody objects to this amendment. It is also needless to state that when there are six Pachaiyappa's Colleges run by the trust, it is desirable to give opportunity to the eligible persons from all the six colleges. Accordingly, this amendment is ordered as prayed for. Under Clause 11(b) of the scheme decree as it stands today, two trustees to the Board have to be elected by the Hindu councillors of the Corporation of Madras. In the first application, a request is made to delete the clause namely, electing two trustees by the Hindu councillors of the Corporation of Madras, and instead, a provision may be made to elect two trustees from among the electoral college consisting of all approved teachers from all the other five colleges of Pachaiyappa's Charities, excluding Pachaiyappa's College for men. It may be noticed that wide publication of this intended amendment was given in newspapers pursuant to court's order and proof in regard thereto is on record. Nobody objected to the proposed amendment as indicated above. Learned Additional Advocate General and the other counsel appearing before court do not oppose the proposed amendment. This court is also of the view that if the existing provision of electing two trustees from the Hindu councillors of Corporation of Madras is allowed to stand, then, such election would have a political colour, which is advisable to be avoided for the better administration of the trust. Accordingly, this amendment is ordered as prayed for. One more amendment sought for in clause 11(b) of the decree is, the provision for co-opting one member to be nominated by the Board of Trustees shall be deleted and instead, a provision shall be made for electing such trustee from an electoral college consisting of all approved teachers of Pachaiyappa's College for Men at Chennai. Across the Bar, it is submitted by the learned Additional Advocate General and the other counsels on the opposite side that such co-option may be given up but instead, a Head of the Department--preferably a female from the Madras University dealing with subjects on humanity, may https://hcservices.ecourts.gov.in/hcservices/ be elected. I applied my mind very carefully to the relevant materials available on record. Under clause 11(b) of the scheme decree as it stands today, one trustee has to be elected from the Pachaiyappa's College Council. Having regard to the amendment sought for, I am of the opinion that instead of one trustee, two trustees shall be elected by the Pachaiyappa's College Council under clause 11(b) of the decree. Accordingly, the said portion also shall stand modified. .... 7. In the latter application, the definition of Pachaiyappa's College council is sought to be amended by widening it's coverage. In my opinion, the proposed amendment of clause 12 namely, clause 12(i)(ii)(iii) as set out in the affidavit filed in support of A.No.4884/2006 only deserves merit and accordingly, clause 12 of the existing decree shall stand modified. ..... " 12. In fact, the appellants (third parties/applicants) also thought it fit and proper to give representation to the other institutions for being elected as Trustees and therefore, without knowing the fact that respondents 3 to 5 in O.S.A.No.47 of 2007 will also move for the same, the appellants-third parties-applicants sought for amendment of Sub-Clause (4) of Clause 11(b) of the existing Scheme Decree, which reads as follows: "Two to be elected by the Hindu members of the Senate of the University of Madras." 13. Learned Senior Counsel appearing for the appellants (third parties/applicants) fairly conceded that no objection was raised by the appellants against Application No.4884 of 2006 filed by respondents 3 to 5 in O.S.A.No.47 of 2007. It was also submitted that the appellants, with a view to give proper representation to all the six institutions, for being elected as Trustees, filed Application No.4224 of 2005, as the members of the Pachaiyappa's College Council could have been elected pursuant to unamended Clause 12(b) of the Scheme Decree, as quoted at paragraph 10 of this judgment. According to the learned Senior Counsel appearing for the appellants, the appellants had no knowledge that respondents 3 to 5 in O.S.A.No.47 of 2007 who preferred Application No.4884 of 2006, will go counter to their interest, as in view of the amendment sought for in regard to Clause 11(b) of the Scheme Decree, the members of Pachaiyappa's College Council will not only lose their claim giving their right in favour of five other Colleges, but simultaneously because of amendment of Clause 12(b) of the Scheme https://hcservices.ecourts.gov.in/hcservices/ Decree, as sought for by respondents 3 to 5 in O.S.A.No.47 of 2007, the members of Pachaiyappa's College Council will lose their exclusive right to be elected as Trustees to which they were entitled to as per unamended Clause 12(b) of the Scheme Decree. 14. Learned counsel appearing for the first respondent in both these OSAs., learned counsel representing AG & OT for respondent No.2 in both these OSAs. and the learned counsel appearing for the third respondent in O.S.A.No.58 of 2007, while submitting that the appellants had not made any objection before the learned single Judge for amendment of the Scheme Decree, further submitted that they have also no objection for inclusion of the members of the Pachaiyappa's College in Clause 11(b) of the Scheme Decree, as amended by the learned single Judge. 15. We have heard Mr.Yashod Vardhan, learned Senior Counsel appearing for the appellants, Mrs.Bhavani Subbarayan, learned Spl.G.P. appearing for the first respondent in both the OSAs., learned counsel Mr.M.Devendran, appearing for the AG & OT for respondent No.2 in both the OSAs., Mr.N.Adhinathan, learned Administrator General & Official Trustee of High Court, Madras and the learned counsel appearing for the third respondent in O.S.A.No.58 of 2007. We have also perused the records and noticed their rival contentions. 16. We have noticed that under the unamended Clause 12(b) of the Scheme Decree, the Pachaiyappa's College Council consisted of Principal/Professor of the Pachaiyappa's College, the Headmaster of the High School at Madras and one College Staff, apart from one Board of Trustee. No other College/educational institution was part of Pachaiyappa's College Council. 17. Clause 12(b) of the Scheme Decree, after the amendment as was made by the learned single Judge, vide the impugned common order dated 4.1.2007, instead of Pachaiyappa's College Council, it will be, "the Pachaiyappa's Trust Board College Council", that means, "all the institutions under the Pachaiyappa's Trust" will come thereunder, including the Principal/Professor of the Pachaiyappa's College, the Headmaster of the Higher Secondary School, the Head of all the Department(s) of different College(s), etc. Thus, the monopoly of Pachaiyappa's College Council, which consisted of its Principal/Professor of the Pachaiyappa College and the Headmaster of the High School, will not be there, in view of the amendment now being made. 18. Under Sub-Clause (4) of Clause 11(b) of the Scheme Decree, originally, "two to be elected by the Hindu Councillors of the Corporation of Madras", in view of the amendment now sought for by the appellants, the aforesaid part of Sub-Clause (4) of Clause 11(b) https://hcservices.ecourts.gov.in/hcservices/ of the Scheme Decree, shall stand deleted and with a view to give opportunity to the other institution(s), College(s) and Schools, the following incorporation is now being made, excluding the Pachaiyappa's College: "Two to be elected from amongst the electoral College consisting of all the approved Teachers from all the other five Colleges of the Pachaiyappa's Charities, i.e. excluding Pachaiyappa's College for Men, Chennai." 19. With a view to accommodate the Pachaiyappa's College, it was discussed and suggested that instead of interfering with the amended Clause 12(b) of the Scheme Decree, as amended by the learned single Judge, if part of amendment as made in Sub-Clause (4) of Clause 11(b) of the Scheme Decree is made, which was made at the instance of the appellants, then, it may include "the Teachers of the Pachaiyappa's College", who now stands excluded in view of the amendment made by the learned single Judge on the application of the appellants themselves. Therefore, it was suggested that if the sentences, "other five" and "i.e., excluding Pachaiyappa's College for Men, Chennai", are deleted, then it may solve the problem. If such deletion is made, then, Sub-Clause (4) of Clause 11(b) of the Scheme Decree, which was, "Two, to be elected by the Hindu Councillors of the Corporation of Madras", may be substituted and read as, "Two, to be elected from among the electoral College, consisting of all the approved Teachers from all the Colleges of Pachaiyappa's Charities". 20. Learned Senior Counsel appearing for the appellants and the respondents who have appeared through the respective counsel(s), including Mr.N.Adhinathan, learned AG & OT, High Court, Madras, have agreed for amendment of Sub-Clause (4) of Clause 11(b) of the Scheme Decree to the extent indicated above. 21. Though we find that respondents 3 to 5 in O.S.A.No.47 of 2007 have not appeared before Court either in person or through counsel, though they have been duly served with the notice, but as it will not affect the amendment made pursuant to their filing of Application No.4884 of 2006, we make the following amendment to Sub- Clause (4) of Clause 11(b) of the Scheme Decree: "In the place of Two, to be elected by the Hindu Councillor of the Corporation of Madras", it should be read as, "Two, to be elected from among the electoral College, consisting of all the approved Teachers from all the Colleges of Pachaiyappa's Charities". https://hcservices.ecourts.gov.in/hcservices/ 22. The impugned common order dated 4.1.2007 passed by the learned single Judge in Application No.4224 of 2005 insofar as it related to Sub-Clause (4) of Clause 11(b) of the Scheme Decree, shall stand modified to the extent indicated above. 23. Mr.N.Adhinathan, learned AG & OT, though represented through counsel Mr.M.Devendran, on the date of hearing, Mr.N.Adhinathan, learned AG & OT appeared in person in Court and orally requested the Court to allow him to conduct the 'elections' in respect of the Board of Trustees, which is due to take place. In this regard, while we are not issuing any specific direction, we allow the learned AG & OT to proceed with the said 'elections' in accordance with law/rules/regulations/bye-laws of the Pachaiyappa's Trust/Charities/Scheme Decree. 24. With the above said modification(s) in the Scheme Decree, both the OSAs. are disposed of. 25. In the facts and circumstances of the cases, there shall be no order as to costs. M.P.No.2 of 2007 in O.S.A.No.58 of 2007 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar cs To 1. The Advocate General, High Court, Madras. 2.The Administrator General and Official Trustee, High Court Building, Chennai-600 104. https://hcservices.ecourts.gov.in/hcservices/ 3.The Pachaiyappa's Board of Trust, Pachaiyappa's College Campus, Poonamallee High Road, Chennai. 4.The Sub Assistant Registrar, Original Side, High Court, Madras. +1cc to Mr.M.Devendran, Advocate Sr 54373 +1cc to M/s.G.Thilakavathi, Advocate Sr 54678 +1cc to Mr.R.Sunil Kumar, Advocate Sr 54532 +1cc to Special Government Pleader Sr 54613 BV (CO) km/30.9. O.S.A.Nos.47 & 58 of 2007 https://hcservices.ecourts.gov.in/hcservices/