THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 7.10.2009 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.12095 of 2009 G.Jayaprakash Secretary Muthu Naidu Memorial High School Jakkarpalayam, Pollachi Coimbatore – 642 202. .. Petitioner Vs. 1. The Secretary to Government Education Department Fort St.George, Chennai – 600 009. 2. The District Education Officer Pollachi Education District Pollachi. 3. L.Balakrishnan .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorarified Mandamus to call for the records in connection with the impugned order of the second respondent dated 12.3.2009 in Na.Ka.No.5112/A2/08, to quash the same and to consequently direct the second respondent to approve the petitioner as Secretary of Muthu Naidu Memorial High School, Jakkarpalayam, Pollachi, Coimbatore – 642 202. For Petitioner : Mr.Venkatachalapathy, Sr.Counsel for Mr.M.Sriram For Respondents : Mr.G.Sankaran Special Government Pleader for respondents 1 and 2 Mr.V.Selvaraj for 3rd respondent https://hcservices.ecourts.gov.in/hcservices/ ORDER This writ petition is directed against the order of the second respondent dated 12.3.2009, by which the second respondent, while considering the application of the petitioner dated 1.12.2008 and the reminder dated 24.12.2008 seeking approval of the appointment of the petitioner as the Secretary of Muthu Naidu Memorial High School, Jakkarpalayam, Pollachi, Coimbatore – 642 202, rejected the same on the basis that the third respondent has raised certain objections regarding the appointment of the Secretary of the School Committee and directed the parties to approach the Civil Court as per Section 53-A of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (for brevity, "the Act"). 2.1. The brief facts leading to the passing of the impugned order, relevant for consideration, are that the petitioner's father – R.Govindaraj established "Muthu Naidu Memorial School" on 12.3.1960 and the said school was administered by a society called "Araneri Kalagam", a society registered under the Tamil Nadu Societies Registration Act. The said society was formed in the year 1958, namely before the Tamil Nadu Societies Registration Act came into existence and by virtue of the provisions of the Tamil Nadu Societies Registration Act it is deemed to be a society under the present Tamil Nadu Societies Registration Act. 2.2. It appears that the father of the petitioner – R.Govindaraj, due to various reasons, has not filed necessary returns before the authorities under the Tamil Nadu Societies Registration Act and actually, the society has become defunct. However, it is not in dispute that so long as the petitioner's father – R.Govindaraj was alive he has been recognised as an educational agency and as the Secretary of the said school. The petitioner's father expired on 3.11.2008. At the time of the death of the petitioner's father, the erstwhile society was defunct and had no other member except the third respondent, who was the sole surviving member of the society. 2.3. It is the case of the petitioner that at the instance of the third respondent, his brother – Ranganatha Naidu has filed a suit on the file of the District Munsif Court, Pollachi in O.S.No.716 of 1997 claiming permanent injunction and declaration and after elaborate trial, the suit came to be dismissed and thereafter, the appeal filed by Ranganatha Naidu also was dismissed. After the said suit and appeal came to be dismissed, the third respondent has now filed a suit in O.S.No.168 of 2009 before the District Court, Coimbatore for the purpose of framing a scheme for the administration of the school and admittedly, in the suit filed by the third respondent no interim order was granted. The prayer made by the third respondent in the scheme suit is as follows: https://hcservices.ecourts.gov.in/hcservices/ "Framing a scheme for the administration of M.N.M.High School, Jakkarpalayam, Pollachi Taluk and the plaint schedule items I, II, III and IV properties belonging to the school, vest the properties in the trustees to be appointed by this Hon'ble Court" 2.4. It is the case of the petitioner that, after the demise of his father, the petitioner re-registered the society under the Tamil Nadu Societies Registration Act in the year 2009 with Registration No.40 of 2009 and the said society constituted by the petitioner is now running the school. The petitioner, being the son of the original founder of the school, approached the second respondent by way of representation for the purpose of approval of his appointment as Secretary of the School Committee on 1.12.2008, followed by reminder dated 24.12.2008 and that representation came to be rejected by the second respondent by the impugned order dated 12.3.2009 for the reasons stated above. 3.1. The impugned order passed by the second respondent is challenged by the petitioner on various grounds, including that there is absolutely no justification on the part of the second respondent to invoke Section 53-A of the Act on the factual matrix, since there is no dispute in respect of the administration of the school between any of the parties and that the third respondent has not claimed himself to be a Secretary of the School Committee and that in the absence of any dispute regarding the administration of the school between the petitioner and the third respondent, the second respondent cannot invoke Section 53-A of the Act. 3.2. It is the further case of the petitioner that even in the scheme suit filed by the third respondent there is no interim order passed by the Civil Court and that until the Civil Court passes final order, the third respondent cannot object the petitioner continuing as the Secretary of the School Committee. 4.1. The third respondent in his counter affidavit has stated that the father of the petitioner has constituted the original society in the name of "Araneri Kalagam" and that has been changed by the petitioner after the demise of his father as a new society called "Kalaivani Kalvi Kalagam" and inasmuch as both the societies are totally different, the present society, namely the newly constituted society by the petitioner cannot claim to be a successor of the erstwhile society constituted by the petitioner's father. 4.2. It is the further case of the third respondent that the original educational agency has become defunct and therefore, the new society constituted by the petitioner cannot be a successor and therefore, he has filed a suit in O.S.No.168 of 2009 under Section 92 https://hcservices.ecourts.gov.in/hcservices/ of the Code of Civil Procedure and he has also filed an interlocutory application in I.A.No.441 of 2009 seeking certain interim directions. 5. The specific case of the second respondent, as it is seen in the counter affidavit, is that the second respondent was prompted to pass the impugned order, taking a decision that it is a matter to be settled under Section 53-A of the Act, on the ground that the third respondent has written to the second respondent stating that whenever the second respondent takes a decision regarding recognition of the petitioner as the Secretary of the School he has to be consulted. The relevant portion of the counter affidavit filed by the second respondent is as follows: "Immediately after the death of Thiru. K.Govindaraju, Thiru.L.Balakrishnan the only alive member of the Educational Agency, Araneri Kalagam sent a petition to the District Educational Officer, Pollachi not to take any decision regarding the appointment of Secretary of the School without consulting him. Thiru. G.Jayaprakash, S/o.Late Thiru.R.Govindaraju sent a proposal dated 21.12.2008 to the District Educational Officer, Pollachi to approve him as the Secretary of the School." 6. On a reference to the impugned order and also the various papers filed in the typeset, it is clear that the petitioner's father has originally constituted the society in the year 1958 and established the school on 12.3.1960 and that till his life time he has been recognised as educational agency as well as the Secretary of the School in spite of the fact that even during his life time the society constituted by him has become defunct. It is after the demise of petitioner's father, the petitioner has registered the society in the year 2009 and as a legal heir of his father, who has originally started the school, according to the petitioner, he has been in maintenance and management of the school. 7. On a reference to the records, nowhere it is seen that the third respondent has claimed himself to be the Secretary of the School. In the counter affidavit filed by the third respondent, it is not his case claiming himself to be the Secretary of the School, managing the affairs of the School. In the counter affidavit what is stated is that after the demise of the original founder, the original society having become defunct and for the purpose of maintenance of the school a scheme should be formulated and it is only after the scheme is formulated by the competent court, the regulation regarding the maintenance of the school will come into operation. There is no interim order passed by the Civil Court in the suit filed by the third respondent prohibiting the petitioner from continuing to manage the school in question. https://hcservices.ecourts.gov.in/hcservices/ 8. In such view of the matter, there is absolutely nothing to show that there is a dispute regarding the management of the school or claim in respect of the educational agency or claim in respect of the Secretary to the School Committee. Simply because the third respondent has filed a suit for scheme it does not ipso facto mean that the third respondent is claiming to be the educational agency or he is claiming himself to be the Secretary of the School and moreover, no materials acceptable are produced in that regard. 9. At this juncture, it is relevant to refer Section 53-A of the Act, which is as follows: "Section:53-A. Settlement of dispute as to educational agency, etc.- (1) Notwithstanding anything contained in section 53, whenever any dispute as to the constitution of any educational agency, or as to whether any person or body of persons, is an educational agency, in relation to any private school, or as to the constitution of a school committee, or as to the appointment of the secretary of the school committee, arises, such dispute may be referred by the persons interested or by the competent authority to the civil court having jurisdiction, for its decision. (2) Pending the decision of the civil court on a dispute referred to it under sub-section (1), or the making of an interim arrangement by the civil court for the running of the private school, the Government may nominate an officer to discharge the functions of the educational agency, the school committee or the secretary, as the case may be, in relation to the private school concerned." 10. A reference to the provision makes it very clear that the educational authority can direct the parties to go to the Civil Court only in cases where there is a dispute as to the constitution of the educational agency, or constitution of a school committee, or appointment of Secretary of the School Committee, and such dispute must be referred by the persons interested or by the competent authority to the civil court. 11. On the factual matrix, in this case, admittedly, the third respondent has not raised any claim, claiming himself to be the Secretary of the School Committee and in such circumstances, it cannot be construed as if there is a dispute in existence regarding the management of the school or regarding the administration of the https://hcservices.ecourts.gov.in/hcservices/ school. Therefore, in my considered opinion, the decision taken by the second respondent in the impugned order to come to a conclusion that there has been a dispute in the management of the school and therefore, the parties must be referred under Section 53-A of the Act to the Civil Court is not tenable in law. It is however clear that after the Civil Court takes a decision in the suit filed by the third respondent, it is for the parties to workout their remedies in accordance with the decision taken by the Civil Court. 12. In such view of the matter, the impugned order is liable to be set aside and accordingly, the same is set aside with a direction to the second respondent to consider the application of the petitioner on merits and in accordance with law and pass appropriate orders in the light of the observations made above. Such orders shall be passed by the second respondent expeditiously, in any event within twelve weeks from the date of receipt of a copy of this order. It is also made clear that after the suit filed by the third respondent for the purpose of framing of scheme is decided, as per the decision of the competent Civil Court, it is open to the parties to workout their remedies in respect of the subsequent maintenance and management of the school. This writ petition is allowed in the above terms. No costs. Consequently, M.P.No.1 of 2009 is closed. Sd/- Asst. Registrar /True Copy/ Sub Asst.Registrar sasi To: 1. The Secretary to Government Education Department Fort St.George, Chennai – 600 009. 2. The District Education Officer Pollachi Education District Pollachi. W.P.No.12095 of 2009 MRD (CO) RH (19.10.09) https://hcservices.ecourts.gov.in/hcservices/