IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.01.2007 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.Nos.17974,17975,17987 and 17988 of 2006 V.Ramadurai .. petitioner in W.P.Nos.17974 and 17975 of 2006 T.B.Ramanathan .. petitioner in W.P.Nos.17987 and 17988 of 2006 vs. The Joint Director (Higher Secondary) School Education, DPI Complex, College Road, Chennai – 600 006. ... first respondent in all the writ petitions The Chief Educational Officer, Tiruvarur. ... second respondent in all the writ petitions The District Educational Officer, ... third respondent Tiruvarur. in all the writ petitions T.S.Rajagopalan .. fourth respondent in W.P.No.17974 of 2006, W.P.No.17987 of 2006 and W.P.No.17988 of 2006 These writ petitions are filed under Article 226 of the Constitution of India as stated therein. For petitioner in W.P.Nos.17974 and 17975 of 2006 : Mr.G.Masilamani Senior Advocate for Mr.G.Nagarajan https://hcservices.ecourts.gov.in/hcservices/ For respondents : Mr.P.S.Raman, in W.P.Nos.17974 Additional Advocate General and 17975 of 2006 for R1 to R3 Mr.C.Selvaraju Senior Advocate for Mr.S.Mani for R4 in W.P.No.17974 of 2006 For petitioner in W.P.Nos.17987 and 17988 of 2006 : Mr.K.M.Vijayan Senior Advocate for Mr.G.Anandakumar For respondents : Mr.P.S.Raman, in W.P.Nos.17987 Additional Advocate General and 17988 of 2006 for R1 to R3 Mr.C.Selvaraju Senior Advocate for Mr.S.Mani for R4 C O M M O N O R D E R W.P.Nos.17974 and 17988 of 2006: The writ petitions have been filed for the issuance of Writs of Certiorari to call for the records of the first respondent, dated 29.5.2006, made in Na.Ka.No.103767/W11/1998, and quash the same as illegal and without jurisdiction. W.P.No.17975 of 2006: The writ petition has been filed for the issuance of az Writ of Certiorarified Mandamus to call for the records of the first respondent, dated 9.5.2006, made in Na.Ka.No.103767/W11/1998 and quash the same as illegal and without jurisdiction and further to direct the first respondent to grant approval for the petitioner functioning as Secretary and Correspondent in National Higher Secondary School, with effect from 23.11.2005. W.P.No.17987 of 2006: The writ petition has been filed for the issuance of a Writ of Certiorari to call for the records of the first respondent relating to his proceedings, dated 9.5.2006, made in Na.Ka.No.103767/W11/1998, and quash the same as illegal and without jurisdiction. 2. Since the issues involved in the above writ petitions have arisen out of the same facts and circumstances, a common order is passed. 3. Heard the learned counsels appearing on behalf of the petitioners as well as for the respondents. https://hcservices.ecourts.gov.in/hcservices/ 4. The brief facts of the case, as stated by the petitioners, are as follows: In the year 1899, National High School, Mannargudi, now called as National Higher Secondary School, Mannargudi, was founded by S.Ramadurai Iyer and T.S.Singaravelu Udayar. By an order of Sub-Court, Kumbakonam, dated 26.9.1932, made in O.S.No.22 of 1924, a Scheme had been framed with regard to the Management and Administration of the School amongst the members of the families of its two founders, namely, S.Ramadurai Iyer and T.S.Singaravelu Udayar. T.S.Singaravelu Udayar's family is commonly known as Thannir Kunnam Udayar family and it consisted of five branches, namely, a. Ramabadhra Udayar's branch b. Gopalaswami Udayar's branch c. Balagurusamy Udayar's branch d. Swaminatha Udayar's branch e. Balakrishna Udayar's branch Each branch was allotted a specified period to represent T.S.Singaravelu Udayar's family. From 1952 to 1988 T.S.Swaminatha Udayar, representing Thannir Kunnam Udayar's family, was functioning continuously, as the Secretary and Correspondent of National High School, Mannargudi, with the consent of S.Ramadurai Iyer's family. Since a dispute with regard to the Management and Administration of the School had arisen, Court proceedings were initiated by Ramadurai Iyer's family before the concerned Court relating to the Scheme. However, there was a compromise in the matter during the proceedings before this Court in C.R.P.No.152 of 1988. Accordingly, a period of three years was allotted to each of the families, on rotation basis, to hold the Office of the Secretary and Correspondent of the School. Accordingly, the Scheme framed earlier had been modified before the Sub-Court, Kumbakonam. According to the modified Scheme, Ramadurai, representing Ramadurai Iyer's Family, was the Secretary and Correspondent of the School, from 16.10.1988 to 15.10.1991. On completion of the period of three years, he had handed over the Management and Administration of the School to T.S.Swaminatha Udayar, as contemplated under the modified Scheme. From 16.10.1991 to 15.10.1994, T.S.Swaminatha Udayar was in Management of the School representing Thannir Kunnam Udayar's family. However, on completion of the period of three years, he had not handed over the Management and Administration of the School to the family of Ramadurai Iyer. After contempt proceedings had been initiated, T.S.Swaminatha Udayar had handed over the Management to Ramadurai Iyer family, in the month of October 1998. From 16.10.1998, the period relating to the Management and Administration of the School was with Ramadurai Iyer's family and one V.Srinivasan, the elder member of Ramadurai Iyer's family was functioning as the Secretary and Correspondent of the School. On 15.2.1999, T.S.Swaminatha Udayar had died. Thereafter, disputes had https://hcservices.ecourts.gov.in/hcservices/ started amongst the various branches of Thannir Kunnam Udayar's family as to who should represent the family in the Management and Administration of the School, when their period commenced. An interim application, in I.A.No.34 of 2001, was filed in O.S.No.22 of 1924, before the Sub Court, Kumbakonam, by T.S.Singaravelu Udayar and T.B.Ramanatha Udayar against the legal heirs of Swaminatha Udayar claiming that they are entitled to represent Thannir Kunnam Udayar's family in the Management and Administration of the School. The said Singaravelu Udayar and Ramanatha Udayar had also filed a suit for injunction, in O.S.No.168 of 2001, on the file of the District Munsif Court, Mannargudi, to restrain the concerned authorities relating to the School education and V.Srinivasan, the then Secretary and Correspondent of the School, representing Ramadurai Iyer's family, from handing over the office of the Secretary and Correspondent to T.S.Rajagopalan. An order of interim injunction was granted by the District Munsif, Mannargudi, restraining V.Srinivasan, the then Secretary and Correspondent of the School, representing Ramadurai Iyer's family from handing over the Management of the School, on completion of the three years already specified. The three year period was to have expired, on 15.10.2001 and the order of interim injunction had been obtained, on 21.9.2001. 5.Due to the existence of the dispute amongst the members of Thannir Kunnam Udayar's family relating to the management and administration of the School and since the scheme Court had not decided the dispute at that stage, the District Educational Officer, Tiruvarur, by his proceedings made in Na.Ka.No.3852/99/A-3, dated 10.4.2002, passed an order directing V.Srinivasan, the then Secretary and Correspondent of the School, representing Ramadurai Iyer's family to continue as a care taker, even though the period of three years allotted to Ramadurai Iyer's family expired, on 15.10.2001. Even though the period from 16.10.2001 to 15.10.2004 had belonged to Thannir Kunnam Udayar's family, for the management and administration of the School, since the dispute amongst the members of Thannir Kunnam Udayar's family had not been resolved and since it was pending on the file of the Sub Court, Kumbakonam, Ramadurai Iyer's family took over the management and administration of the School from 16.10.2004, with V.Srinivasan representing Ramadurai Iyer's family. The three years period is to end, on 15.10.2007. However, on 22.11.2005, V.Srinivasan had died and his brother V. Ramadurai had assumed the Office as the Secretary and Correspondent of the School, after duly intimating the position to the Educational Authorities by a letter, dated 23.11.2005, along with all the relevant papers including the resolution of the School Committee and requesting the first respondent to grant a formal approval. The first respondent had rejected the request for the approval made by V.Ramadurai to be the Secretary and Correspondent of the School. Therefore, V.Ramadurai had filed a writ petition in W.P.No.17975 of 2006, challenging the order of the first respondent, dated 9.5.2006. 6.In Writ Petition No.17974 of 2006, it has been stated that after rejecting the request for approval made by V.Ramadurai, the first https://hcservices.ecourts.gov.in/hcservices/ respondent had passed an order, dated 29.5.2006, permitting T.S.Rajagopalan to act as the Secretary and Correspondent of the School, based on his representation, dated 14.5.2006. 7.It has been pointed out that the first respondent, by his proceedings, dated 9.5.2006, had rejected the claim made by one Ramanatha Udayar, for the office of the Secretary and Correspondent of the School, holding that inter se dispute between the members of Thannir Kunnam Udayar's family was pending before the Sub Court, Kumbakonam, without having been decided. However, the first respondent by his order, dated 29.5.2006, had permitted T.S.Rajagopalan to act as the Secretary and Correspondent of the School, even though there was no change in circumstances. Therefore, V.Ramadurai had filed the present writ petition in W.P.No.17974 of 2006, challenging the order of the first respondent, dated 29.5.2006, made in Na.Ka.No.103767/W11/1998, appointing T.S.Rajagopalan as the Secretary and Correspondent of the School. 8.The first respondent had given three reasons in his order, dated 9.5.2006, for rejecting the claim of V.Ramadurai to be the Secretary and Correspondent of the School. One of the reasons given by the first respondent is that as per the terms of the Scheme decree in O.S.No.22 of 1924, on the file of Sub Court, Kumbakonam, and the compromise order made in C.R.P.No.152 of 1988, on the file of this Court it could not be known as who was to represent Thannir Kunnam Udayar's family. The second reason stated by the first respondent is that the representative belonging to Ramadurai Iyer's family had continued as the Secretary and Correspondent of the School, from 18.10.1988 and the third reason is that a member belonging to the other founder family had applied for the Office of the Secretary and Correspondent of the School. 9.It has been further stated by the petitioner V.Ramadurai that the first respondent had passed the impugned order, dated 9.5.2006, based on the remarks obtained by him from the District Educational Officer, Tiruvarur. Even though the remarks obtained from the District Educational Officer, Tiruvarur, is referred to in the impugned order, it was neither furnished to the petitioner nor an opportunity had been given to him to repudiate the authenticity of the remarks. Thus, the order passed by the first respondent is contrary to the principles of natural justice. 10.Further, the reasoning of the first respondent, in his impugned order, dated 9.5.2006, that no representative of Thannir Kunnam Udayar's family was found in the Management Committee cannot be held to be correct, as it is contrary to the records available. In fact, the then Secretary and Correspondent V.Srinivasan representing Ramadurai Iyer's family, by his letter, dated 23.12.1999, had informed the District Educational Officer, Tiruvarur, that the Educational Agency had been constituted, with effect from October, 1998, and had referred the name of T.S.Swaminatha Udayar as the representative of Thannir Kunnam Udayar's family till his death, on 15.2.1999. Thereafter, since the inter se dispute had arisen https://hcservices.ecourts.gov.in/hcservices/ amongst the members of Thannir Kunnam Udayar's family and as it was being decided by the Scheme Court, the post which was kept for the representative member of Thannir Kunnam Udayar's family, could not be filled up and therefore, it was vacant. Thus, the said vacancy was not due to any fault committed by the petitioner. An interim order of injunction had been granted by the District Munsif Court, Mannargudi, in O.S.No.168 of 2001, restraining the educational authorities and V.Srinivasan, the then Secretary and Correspondent of the School, from handing over the Management to the legal representative of T.S.Swaminatha Udayar's family on completion of the three year period. The District Educational Officer, Tiruvarur, had also passed an order in his proceedings, dated 10.4.2002, made in Na.Ka.No.3852/99/A-3, directing V.Srinivasan to continue to hold the office even after 15.10.2001, since the inter se dispute amongst the members of the Thannir Kunnam Udayar's family had not been decided. 11.It has also been stated that V.Srinivasan continued as the Secretary and Correspondent as a care taker of the School during the three years period allotted to Thannir Kunnam Udayar's family. The order of the District Educational Officer, Tiruvarur, dated 10.4.2002, directing V.Srinivasan, to continue to hold the post of Secretary and Correspondent of the School, had not been challenged by any of the parties. After expiry of the three year period, from 16.10.2001 to 15.10.2004, allotted to Thannir Kunnam Udayar's family, it was the turn of the members of the Ramadurai Iyer's family from 16.10.2004 to 15.10.2007, to hold the post of the Secretary and Correspondent of the School. Therefore, it is the turn of Ramadurai Iyer's family to continue to manage and administer the School, till 15.10.2007 and the first respondent could not be right in stating in his impugned order, dated 9.5.2006, that it is the turn of Thannir Kunnam Udayar's family, to manage and administer of the School, even though such a representation had been received from them. 12.In Writ Petition No.17988 of 2006 filed by T.B.Ramanathan, it has been stated that he is the son of late Balaguruswamy Udayar belonging to one of the five branches of Thannir Kunnam Udayar's family. In 1899, National High School, Mannargudi, was jointly founded by S.Ramadurai Iyer and T.S.Singaravelu Udayar. Subsequently, a suit in O.S.No.22 of 1924, had been filed before the Sub- Court, Kumbakonam, by one of the branches of Thannir Kunnam Udayar's family for partition of the entire property in the said suit. The question of division of half share of the property and the administration of the School came to be considered. Therefore, the Sub Court, Kumbakonam, had framed a scheme. As per the terms of the Scheme, the Management Committee of the School was to consist of one representative of Ramadurai Iyer's family, permanently, and each branch of all the five branches of Thannir Kunnam Udayar's family shall be in management for a specified period. A decree had been passed by the Sub Court, Kumbakonam, based on the said scheme for a specified period, by rotation. Even though the Scheme was framed in the year 1932, T.S.Swaminatha Udayar, who was the senior male member of all the five branches, was permitted to represent the entire Thannir Kunnam Udayar's https://hcservices.ecourts.gov.in/hcservices/ family in the Management of the School and accordingly, he was representing the Thannir Kunnam Udayar's Family, till his death, on 15.2.1999. Since some disputes had arisen between Ramadurai Iyer's family and T.S.Swaminatha Udayar relating to the Office of the Secretary and Correspondent of the School, the matter had come before this Court in C.R.P.No.152 of 1988. A compromise had been entered, which was recorded by this Court, whereby, a period of three years was fixed to be allotted for each one of the two families, by rotation. From 16.10.1998 to 15.10.2001 V.Srinivasan representing Ramadurai Iyer's family was holding the post of Secretary and Correspondent. In the meantime, T.S.Swaminatha Udayar had died, on 15.2.1999. A dispute had arisen as to which of the branches of Thannir Kunnam Udayar's family should hold the office of the Secretary and Correspondent and also to be the member of the Management Committee. In such circumstances, the petitioner and his brother Singaravelu Udayar, representing one of the five branches of Thannir Kunnam Udayar's family had made the claim for the Office. Since the fourth respondent had resisted the claim made by the petitioner and his brother, they had filed a suit in O.S.No.168 of 2001, on the file of the District Munsif Court, Mannargudi, along with an interim application for permanent injunction restraining the educational authorities and V.Srinivasan from handing over the Office of the Secretary and Correspondent of the School to Ramadurai Iyer's family, from 16.10.1998. An order of interim injunction had been granted by the District Munsif Court, Mannargudi. Since the dispute had also related to the Scheme framed earlier, an interim application in I.A.No.34 of 2001 was filed in O.S.No.22 of 1924 on the file of the Sub Court, Kumbakonam, and it is still pending. The three year period of Ramadurai Iyer's family ended, on 15.10.2001 and in view of the fact that the inter se dispute among the members of Thannir Kunnam Udayar's family was pending before the Sub Court, Kumbakonam, and an order of interim injunction had been passed, the District Educational Officer, Mannargudi, after getting a legal opinion, had issued proceedings, dated 20.4.2002, directing V.Srinivasan to continue even after 15.10.2001 till the end of 15.10.2004, which was allotted to Thannir Kunnam Udayar's family. Since from 16.10.2004 the period of S.Ramadurai Iyer's family had started, V.Srinivasan continued to hold the post of Secretary and Correspondent of the School, with effect from 16.10.2004, representing the tenure of Ramadurai Iyer's family. After V.Srinivasan had died, on 22.11.2005, his brother Ramadurai had assumed the Office of the Secretary and Correspondent of the School. When he had applied for formal approval after his assumption of his Office, the first respondent by an order, dated 9.5.2006, had rejected his claim. Therefore, the petitioner had filed the present writ petition in W.P.No.17988 of 2006, challenging the order of the first respondent, dated 9.5.2006, rejecting his claim to hold the post of Secretary and Correspondent of the School. 13.In the Writ Petition W.P.No.17987 of 2006 filed by T.B.Ramanathan, it has been stated that while rejecting his claim to the post of Secretary and Correspondent of the School and his right to represent Thannir Kunnam Udayar's family, the first respondent by his order, dated 9.5.2006, has https://hcservices.ecourts.gov.in/hcservices/ held that an inter se dispute was pending before the Sub Court, Kumbakonam. However, by his order, dated 29.5.2006 made in Na.Ka.No.103767/W11/1998, the first respondent had appointed the fourth respondent, T.S.Rajagopalan, belonging to another branch of Thannir Kunnam Udayar's family as the Secretary and Correspondent of the School. The first respondent having rejected the representation made by the petitioner on the ground that the inter se dispute was pending before the Competent Court, had allowed the claim of the fourth respondent by his order, dated 29.5.2006. The reasoning given by the first respondent is that the shares owned by all the branches of Thannir Kunnam Udayar's family, as per the scheme decree in O.S.No.22 of 1924, had been purchased by T.S.Swaminatha Udayar. He had purchased all the rights and shares of the other branches by a registered sale deed in the year 1952. Consequently, the other branches including the petitioner could not have any right or claim. 14.It has also been stated that I.A.No.34 of 2001, filed by the petitioner before the Sub Court, Kumbakonam, regarding his claim to the office was still pending and there was no change in circumstances within a span of 15 days between the two orders of the first respondent to allow the fourth respondent to assume the charge as the Secretary and Correspondent of the School. 15.It has also been pointed out that all the sale deeds, relating to the purchase of shares mentioned by the first respondent, were executed only to enable T.S.Swaminatha Udayar to represent the Management, continuously, till his life time. In fact, the right of Management cannot be transferred or assigned by any member, since it is hereditary right and therefore, the said sale deeds would not bind the successors and the petitioner is not a party to the said sale deeds. However, since the validity of the sale deeds have been questioned before the Sub Court, Kumbakonam, the first respondent could not have decided the issue during the pendency of the said dispute before the competent Civil Court. 16.According to Section 53(A) of Tamil Nadu Private Schools (Regulation) Act, 1973, in case of a dispute relating to the Educational Agency, the authorities have a duty to direct the parties to go before the Civil Court to resolve the issue. 17.In the present case, the parties have already gone to the Civil Court, namely, Sub Court, Kumbakonam. While so, it is improper on the part of the first respondent to decide the dispute by passing an order, while such a dispute is pending before the Civil Court. Therefore, the petitioner has filed the present writ petition No.17899 of 2006 challenging the order of the first respondent, dated 29.5.2006, appointing the fourth respondent as the Secretary and Correspondent of the School. 18.In a common counter affidavit filed on behalf of the fourth respondent in Writ Petition Nos.17974 and 17975 of 2006, it has been stated that after disputes had arisen between the families of https://hcservices.ecourts.gov.in/hcservices/ T.S.Singaravelu Udayar and S.Ramadurai Iyer, a scheme decree was framed in O.S.No.22 of 1924, on the file of the Sub-ordinate Court, Kumbakonam. As per the said scheme, the eldest male member of each family will be administering the school. The management shall be on rotation basis. As far as S.Ramadurai Iyer was concerned, there was no controversy. With regard to the family of Thannir Kunnam Udayar, there were five branches of Udayar family. Of the five branches of Udayar family, Gopalaswami Udayar's family sold his share in favour of S.Ramadurai Iyer's family, on 28.12.1939, by a registered sale deed. As far as the shares of Ramabadhra Udayar, Balagurusamy Udayar and Balakrishna Udayar are concerned, they were sold in favour of Swaminatha Udayar, by a registered sale deed, dated 11.07.1952. In the sale deed, since Balagurusamy Udayar had died, his eldest son T.B.Singaravelu Udayar, being eldest male member, became the executant of the sale deed, dated 11.07.1952. Similarly, since Balakrishna Udayar had died, the eldest male member T.B.Iyyadurai Udayar, became the executant of the sale deed. Thus, after the said sale deeds, the administration of the school is to be only between S.Ramadurai Iyer's family and T.S.Swaminatha Udayar's family. The other branches of Thannir Kunnam Udayar's family have no right in the school. That was the reason why, a compromise was entered into between V.Ramadurai and T.S.Swaminatha Udayar before this Court in C.R.P.No.152 of 1988 and the same was recorded and ordered, on 29.04.1988. As per the compromise order, once in three years, the office of the Secretary and Correspondent has to be held among the families of S.Ramadurai Iyer's family and T.S.Swaminatha Udayar, on rotation basis. As per the scheme decree, it is only T.S.Balagurusamy Udayar, first son of T.S.Swaminatha Udayar, who is entitled for management as the eldest male member. However, since he did not want the same, he had transferred his right to the fourth respondent, by a sale deed, dated 13.05.1999. 19.It has been stated that one Srinivasan became the Secretary and Correspondent of the school representing S.Ramadurai Iyer's family. The said Srinivasan had died, on 22.11.2005. Even though the fourth respondent was eligible to take over the Management and the Administration of the school, he was not allowed to do so. Therefore, he had made a representation, on 17.01.2006. Based on which, the first respondent had passed an order announcing the fourth respondent as the Secretary and Correspondent of the school, by his order, dated 29.05.2006, which has been challenged by the petitioner. According to the fourth respondent, unless and until the scheme decree made in O.S.No.22 of 1924, on the file of the Sub-ordinate Court, Kumbakonam, and the compromise order made by this Court in C.R.P.No.152 of 1988, is modified, his right to the office cannot be denied. 20.In the counter affidavit filed by the third respondent, it has been stated that the first respondent had passed the order only after careful consideration of all the relevant aspects relating to the matter. Since there was a stalemate after the lapse of the tenancy of V.Srinivasan, representing S.Ramadurai Iyer's family, in order to safe guard the https://hcservices.ecourts.gov.in/hcservices/ interest of the school, he was permitted to continue in the said post until further orders. However, the petitioner cannot claim a vested right to continue for a further period, even after the lapse of tenancy allotted to S.Ramadurai Iyer's family, especially, in view of the fact that S.Ramadurai Iyer's family has been in enjoyment of the post for about seven years, which is contrary to the scheme decree. Therefore, the first respondent had passed the order in favour of the fourth respondent representing Thannir Kunnam Udayar's family, on a careful consideration of all the records pertaining to the matter