1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28.04.2011 CORAM: THE HON'BLE MS. JUSTICE K. SUGUNA and THE HON'BLE MR. JUSTICE A. ARUMUGHASWAMY W.A. (MD) Nos.133 and 134 of 2011 P. Narayanan :Appellant in both the WPs vs. 1 The District Elementary Educational Officer Virudhunagar District,Virudhunagar. 2 The Assistant Elementary Educational Officer Virudhunagar 3 Mundalapuram Hindu Primary School Paripalana Sabai, Mundalapuram Village,Muthulapuram Post Virudhunagar Taluk,Virudhunagar District. represented by its President Thiru O. Jayaraman 4 The Secretary of Mundalapuram Hindu Primary School Paripalana Sabai, Mundalapuram Village, Muthulapuram Post, Virudhunagar Taluk Virudhunagar District :Respondents in both Wps. Writ Appeals filed under Clause 15 of the Letters Patent challenging the common order dated 22.01.2011 passed in W.P. (MD) Nos.344 and 345 of 2009. Prayer in W.P. (MD)Nos.344 and 345 of 2009: 1) Writ petition under Article 226 of the Constitution of India, to issue a Writ of Certiorari, calling for the records relating to the impugned order dated 20.11.2008 made in Mu.Mu.No.3983/A3/2008 passed by the first respondent herein and to quash the same (in WP(MD) No.344/07). 2) Writ of Certiorarified Mandamus, calling for the records relating to the impugned order of the first respondent herein in ref.Mu.Mu.No.8226/A3/2008 dated 10.01.2009 and to quash the same and to direct the first respondent herein to approve the School Committee as per th representation made by the petitioner on 19.02.2008 for a period of three years from 09.05.2008.(in WP(MD)No.344/07). For appellant in : Mr. R. Vijayakumar both the writ appeals For RR 1 & 2 in : Mr. R. Janakiramulu both the writ appeals Spl. Govt. Pleader For R3 in : Mr. Veera. Kathiravan both the writ appeals https://hcservices.ecourts.gov.in/hcservices/ 2 COMMON JUDGMENT (Judgment of the Court was delivered by K. SUGUNA, J.) These writ appeals are filed as against the common order dated 22.01.2011 passed in W.P. (MD) Nos.344 and 345 of 2009. 2. While W.P. (MD) No.344 of 2009 was filed challenging the order dated 20.11.2008 passed by the first respondent thereby approving the educational agency, W.P. (MD) No.345 of 2009 was filed challenging the order dated 10.01.2009 issued by the first respondent thereby approving the school committee. 3. However, a learned Single Judge of this Court had dismissed those two writ petitions by a common order dated 22.01.2011. Challenging the said common order, these two writ appeals have been filed by the petitioner in the writ petitions. 4. The case of the appellant is that Hindu Primary School at Mundalapuram Village in Muthalapuram Post was established by him in the year 1953; on 16.07.1953, the District Educational Officer, Ramnad, also accorded permission for opening an aided school; consequence of this, on 07.08.1953, the school was opened and temporary recognition was granted; on 07.04.1955, permanent recognition also was granted to the said school and on 25.09.1957, the District Collector, Ramnad, also assigned free lease of lands for the construction of new buildings; the petitioner also was working as a teacher in the said school and he continued as a teacher in the said school upto 1982; however, on his retirement, on 01.10.1982, he had made a request to the Government for taking over of the school by the Government; but, no decision was taken by the Government for a period of five years; consequently, he had withdrawn his request for taking over of the said school by the Government; based on this, on 11.08.1987, the first respondent has passed an order to the effect that the appellant would continue to be the educational agency as well as Secretary of the said school; on 01.08.2002, the first respondent accorded approval also for the school committee for a period of three years; however, in the year 2003, an order was passed introducing direct payment; aggrieved by the same, the appellant filed a suit in O.S. No.235 of 2003 on the file of the District Munsif Court, Virudhunagar and the said suit was dismissed; besides, on 18.07.2006, the appellant had submitted an application to the first respondent to accord sanction for school committee for a period of three years from 10.05.2005 to 09.05.2008; that request was also turned down by the first respondent stating that the issue relating to direct payment is pending before the District Munsif Court in O.S. No.235 of 2003; apart from this, subsequently, by order dated 05.11.2008, the appellant was also informed that since the issue as to whether the school belongs to the appellant or the villagers is not decided, he has to approach the Civil Court; based on this, the appellant also filed a suit in O.S. No.15 of 2009 on the file of the District Munsif Court, Virudhunagar; after passing of the said order dated 05.11.2008, within fifteen days, the District Elementary Educational Officer had passed an order dated 20.11.2008, approving the contesting respondent as the educational agency; consequence of this, the order dated 10.01.2009 has been https://hcservices.ecourts.gov.in/hcservices/ 3 passed by the first respondent approving the school committee; challenging these two orders by which educational agency and school committee were approved, the writ petitions were filed. 5. According to the learned counsel for the appellant, as far as the order of the District Elementary Educational Officer dated 20.11.2008 is concerned, without even getting consent from the appellant who was the educational agency, the said order has been passed. Apart from this, relying on Section 8 of the Tamil Nadu Private Schools (Regulation) Act and Rule 7 of the Tamil Nadu Private Schools (Regulation) Rules, the further submission of the learned counsel for the appellant is that even as per Form IV of Rule 7 also, a declaration from the transferor and transferee as well as consent from the transferor or transferee has to be secured, but, without following this, the order dated 20.11.2008 has been passed; consequently, the said order is contrary to the Tamil Nadu Private Schools (Regulation) Act, 1973. Besides, relying on the proceedings of the District Elementary Educational Officer dated 16.07.1953, the further submission of the learned counsel for the appellant is that permission was granted only to the appellant to establish the said school. In this regard, the learned counsel for the appellant has placed further reliance on the documents dated 26.07.1953 and 11.08.1987 and also the proceedings of the District Elementary Educational Officer dated 01.08.2002. Based on these documents, the learned counsel for the appellant has submitted that when the appellant was the educational agency, since without getting consent from him, the orders under challenge in the writ petitions were passed, they have to be set aside. 6. On the other hand, it is the stand of the learned counsel for contesting respondents that as far as the school in question is concerned, it is not the school of the appellant; actually, it is only the villagers who had constructed the said school; since the school was started as early as 1953 and since at the relevant point of time, only the appellant was an educated person in the said village, for all official correspondences, his name was used and merely because of this, the appellant cannot be permitted to take a stand that the school was constructed by him; in fact, for the construction of the said school, only the villagers had contributed. In support of this contention, the learned counsel for the contesting respondents has relied on letter bearing G.No.482, A/54 dated 08.03.1955 wherein it has been specifically stated that half of the cost incurred for construction of the school had been borne by the villagers. Relying on the said letter, the further submission of the learned counsel for the contesting respondents is that if the school had been actually constructed by the appellant, there is no need for such mentioning in the said letter that the cost had been borne by the villagers; apart from this, when application was given by the villagers seeking approval of the educational agency in 2008, there was no approved educational agency for the school in question, consequently, getting consent or declaration from the appellant does not arise at all and when the appellant is the educational agency as contended by the learned counsel for the appellant, there is no need for the appellant to file O.S. No.15 of 2009 on the file of the District Munsif Court, https://hcservices.ecourts.gov.in/hcservices/ 4 Virudhunagar, seeking declaration; besides, the appellant is now 93 years old and he is not even in a position to run the school; based on this alone, the impugned orders have been passed; consequently, if at all, the appellant is having any grievance, he has to seek the relief only through the Civil Court and not under Article 226 of the Constitution of India. Based on these submissions, the learned counsel for the contesting respondents has sought dismissal of the writ appeals. 7. The learned Special Government Pleader appearing for the respondent department has also submitted that the appellant is not the educational agency and as per the stand of the Department, the school is established by the villagers and not by the appellant. Based on these submissions, the learned Special Government Pleader has sought dismissal of the writ appeals. 8. We have considered the above submissions of the respective learned counsel. 9. The two orders challenged in the writ petition are one approving the educational agency and the other approving the school committee. Admittedly, there is a dispute with regard to the ownership of the school and a suit in this regard is pending in O.S.No.15 of 2009 on the file of the District Munsif Court, Virudhunagar and only based on this, by order dated 05.11.2008, the appellant was directed by the District Elementary Educational Officer, Virudhunagar, to approach the Civil Court. After passing of the said order, we are not able to understand as to how the impugned order dated 20.11.2008 has been passed approving the school committee formed by the contesting respondents when it is not established by the contenting respondents that the school in question was founded by them. Neither any reason is given in the impugned orders nor any convincing reason has been given in the counter affidavit and also during the arguments, the learned Special Government Pleader has not pointed out any convincing reason. While the appellant had been directed by order dated 05.11.2008 to approach the Civil Court, we are not able to understand as to why the impugned order dated 20.11.2008 and the consequential order dated 10.01.2009 have been passed when the issue is sub-judice before the Sub-Court. Apart from this, based on the decision to be arrived at by the Sub-Court alone, the issue in question can be decided. 10. In view of the above, setting aside the order of the learned Single Judge as well as the order dated 20.11.2008 and also the consequential order dated 10.01.2009, the writ appeals are disposed of by directing the District Munsif Court, Virudhunagar to dispose of the suit in O.S. No.15 of 2009 filed by the appellant wherein the contesting respondents are also parties, within a period of three months from the date of receipt of a copy of this order. Since already even according to both the sides, the school is under direct payment and also in view of setting aside of the orders dated 20.11.2008 and 10.01.2009, the school will be under the direct management of the educational authorities, till the disposal of the https://hcservices.ecourts.gov.in/hcservices/ 5 suit and based on the result of the suit, the issue relating to the educational agency and also the school committee will be decided. No costs. Sd/- Deputy Registrar(LA) /TRUE COPY/ Assistant Registrar To 1 The District Elementary Educational Officer, Virudhunagar District,Virudhunagar. 2 The Assistant Elementary Educational Officer,Virudhunagar, 3. The District Munsif, Virudhunagar. +1cc to Mr.D.Sivaraman, Advocate SR.No.16048 +1cc to Mr.I.Suthakaran, Advocate SR.No.15680 Common Judgment in W.A. (MD) No.133 and 134 of 2011 28.04.2011 cad PA/14.06.2011/5P/6C https://hcservices.ecourts.gov.in/hcservices/