IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.08.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.16822 and 16823 of 2011 and M.P.Nos.1,2,1,2,3,3 and 4 of 2011 Rt.Rev.Dr.A.Christopher Asir, President, The Governing Council of the American College, The American College (Autonomous) Madurai-625 002. .. Petitioner in W.P.No.16822 of 2011 The Governing Council of the American College, rep by its acting Principal & Secretary, Dr.R.Mohan The American College (Autonomous), Madurai-625 002. .. Petitioner in W.P.No.16823 of 2011 Vs. 1.The State of Tamil Nadu, rep by its Principal Secretary to Government, Higher Education (E2) Department, Fort St. George, Chennai-600 009. 2.The Director of Collegiate Education, 9th floor, EVK Sampath Buildings, College Road, Chennai-600 006. 3.The Regional Joint Director of Collegiate Education, Madurai Region, Door No.30, Vaidhyanatha Iyar Street, Shenoy Nagar, Madurai-625 020. 4.Dr.P.R.Anbudurai. .. Respondents in both writ petitions https://hcservices.ecourts.gov.in/hcservices/ Both writ petitions are preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records in respect of the impugned proceedings in Letter No.3082/E2/2011-1, dated 1.7.2011 issued by the first respondent, quash the same as being ultra vires of Article 30(1) of the Constitution of India and inapplicable to the American College, Madurai being a minority institution and consequently direct the first respondent to cause the disbursement of salary to the teaching and non teaching staff of the college with effect from the date of cessation of such disbursement through its acting Principal and Secretary and through the petitioner under the Constitution and Byelaws of the Governing Council of the College. For Petitioner : Mr.V.Prakash, SC for M/s/Adrian D.Rozario For Respondents :Mr.I.Arockiasamy, GA(Education) for RR1 to 3 Mr.P.Godson Swaminath for R-4 Mr.R.Thiagarajan, SC for M/s.P.Sam Japa Singh for Intervenor COMMON ORDER These two writ petitions came to be posted before this court on being specially ordered by the Hon'ble Chief Justice. Subsequently when the matter came up for extension of an interim order on 4.8.2011, this court after hearing both sides had extended the interim order. 2.It is at this stage, Mr.V.Prakash, learned Senior counsel appearing for M/s.Adrian D.Rozario, counsel for petitioners insisted for an order in M.P.No.2 of 2011 in W.P.No.16822 of 2011 and in M.P.No.3 of 2011 in W.P.No.16823 of 2011 seeking for a direction to the first respondent State Government to disburse the salaries for teaching and non teaching staff of American College, Madurai with effect from the date of cessation of such disbursement through its acting Principal and Secretary as per the Constitution and Bylaws of the Governing Council of the College pending disposal of the writ petitions. It was claimed that the College is an aided private college. The teaching and non teaching staff of the college were not in receipt of salary since December, 2010. They are suffering due to economic hardship. When the matter came up on 5.8.2011, both sides agreed that the main writ petitions can be disposed of as it will resolve the major hurdle faced by the college. Thus, both writ petitions were taken up for hearing with the consent of all parties. 3.The fourth respondent Dr.P.R.Anbudurai has filed a counter affidavit stating that he is the present Principal-in-charge and Secretary of the College and he being the earlier Vice Principal is entitled to discharge functions as Principal. While he agreed with the contentions of the writ petitioners that the college is a https://hcservices.ecourts.gov.in/hcservices/ minority college entitled to have protection under Article 30(1) of the Constitution and hence the respondent State cannot invoke the power under Section 14A of the Tamil Nadu Private College (Regulations) Act, 1976 (for short TNPCR Act) and the impugned show cause notice was illegal and ultra vires of the Constitution, he did not want any other relief to be granted to the writ petitioners. 4.Apart from the objections by the fourth respondent in granting other reliefs, two other applications were filed in M.P.No.3 of 2011 in W.P.No.16822 of 2011 and M.P.No.4 of 2011 in W.P.No.16823 of 2011 by one Action committee for Protecting American College Constitution (ACPAC) through its Secretary seeking permission to implead them as party fifth respondent or as an intervener in both writ petitions. This court is not inclined to entertain any third party to enter into the fray as there is no conflict on interest between the parties who is seeking impleadment as well as the writ petitioners, because they are also of the view that the American College is the minority institution and is entitled to have protection under Article 30(1) of the Constitution and that the impugned show cause notice was not valid. Unless proper cause is shown or an apprehension is raised that the writ petitioners may not defend the interest of the institution, the question of impleadment will not arise. Hence, M.P.No.3 of 2011 in W.P.No.16822 of 2011 and M.P.No.4 of 2011 in W.P.No.16823 of 2011 stand dismissed. 5.On behalf of respondent State, a position note signed by the Deputy Secretary to the Government was circulated in justification of the show cause notice. 6.The short question that arises for consideration in these writ petitions is whether the impugned notice dated 1.7.2011 issued by the first respondent in letter No.3082/E2/2011-1 is legally valid and liable to be interfered with even at the stage of show cause notice? 7.The first writ petition is filed by one Rt.Rev.Dr.A.Christopher Asir claiming to be the President of the Governing Council of American College, Madurai. The second writ petition is filed by the Governing Council of the American College represented by its acting Principal and Secretary Dr.R.Mohan. In both writ petitions, notice of motion was ordered on 19.7.2011 and an interim stay was granted and subsequently, the interim stay was directed to continue on 4.8.2011. 8.The first writ petitioner is the Bishop of the Madurai-Ramnad Diocese of the Church of South India. He is the President of the Governing Council of American College. The American College was founded in 1881 at Madurai. It is one of the oldest College in the South India. It was founded by the American Christian Missionaries. The educational agency of the American College is known as the https://hcservices.ecourts.gov.in/hcservices/ Governing Council of the American College, Madurai which is a society registered under the Societies Registration Act. The college was affiliated to the University of Madras initially and subsequently got affiliated to the Madurai Kamarajar University in the year 1966 and it has been granted an autonomous status in the year 1978. 9.It was claimed by the Bishop that Dr.T.Chinnaraj Joseph Jaikumar, who was the Principal and Secretary of the College, was acting against the interest of the Church and he was dismissed from service. His dismissal was set aside ultimately by a division bench in W.A(MD)No.790, 796 and 797 of 2008 and 12 and 312 of 2009 holding that dismissal of the Principal Dr.T.Chinnaraj Joseph Jaikumar was vitiated and that W.A(MD)No.312 of 2009 was allowed and that the proceedings initiated against the then Principal was held to be illegal by a judgment, dated 24.8.2009. The said judgment is since reported in The Governing Council of American College Vs. The Director of Collegiate Education and others reported in 2009 (4) CTC 401. The said Principal had reached the age of superannuation on 30.11.2010. Though eh sought for re-employment till the end of the academic year, i.e. On 31.5.2011, the same was rejected by the Bishop. He was also relieved from the post of the Principal and one Dr.R.Mohan, an Associate Professor and the Head of Department of Economics, was appointed as an acting Principal with effect from 1.12.2010 and he is also the ex-officio secretary until further orders. 10.Dr.T.Chinnaraj Joseph Jaikumar had challenged the rejection of his re-employment request in W.P.(MD)No.14127 and 14128 of 2010 and the interim prayer made by him was rejected by an order dated 2.12.2010. But, however the said Dr.T.Chinnara Joseph Jaikumar acting in his capacity as the Principal and Secretary had appointed Dr.P.R.Anbudurai, the fourth respondent herein, who was then Vice Principal as Principal on 2.12.2010 without any authority. In the meanwhile, the Director of Collegiate Education, i.e., the second respondent had approved the appointment of Dr.R.Mohan and had rejected the claim of the fourth respondent. The Governing Council had also ratified the appointment of Dr.R.Mohan on 12.12.2010 by approving the earlier minutes and ever since Dr.R.Mohan has been functioning as the Principal and Secretary of the College. In the meanwhile, the second respondent did not grant approval for the Secretaryship in favour of Dr.R.Mohan inspite of several reminder letters and because of that, disbursement of salary to teaching and non teaching staff from December, 2010 has been held up. It is under these background, the first respondent State had issued the show cause notice under section 14A of the TNPCR Act. 11.In the show cause notice as many as 8 irregularities / lapses were indicated on the part of the administration of American College, which are as follows: "1.Salary has not been released to teaching and non https://hcservices.ecourts.gov.in/hcservices/ teaching staff for the past six months. 2.Classes and examinations are not conducted smoothly. 3.The result of the previous semester has not been published due to non handing over of the internal assessment marks by the concerned examiners. 4.Dr.R.Mohan is acting as Principal -in-charge and Secretary as per Director of Collegiate Education temporary acceptance issued vide letter 4th cited. It is learnt that Dr.P.R.Anbudurai is also acting as Principal-in-charge and Secretary by himself. 5.Due to the tussle prevailing in the college the staff and non teaching staff have been divided into two groups. 6.There have been law and order problem in the College premises as per the report of the District Collector, Madurai. Due to the mismanagement of the College there is groupism not only amongst the staff of the College but also in the students wing which results often in students unrest. 7.Out of the total strength of 14 members, now only 7 members are in the existence in the Governing Council. But the Quorum for the meeting shall be 8 members. 8.The mandatory annual statement of functioning of Governing Council has not been submitted to the Registrar of Societies since 2006 and Form 7 consisting of the changes in the Governing Council members has not been submitted since 2006 under the Societies Registration Act." 12.On the basis of these allegations, opinion of the second respondent Director was also sought for and he had reported that no decision has been taken since the composition of the Governing Council was under cloud. Therefore, it was postulated that the management had neglected to discharge the duties and function entrusted to it by the Act and Rules and the orders issued from time to time. The incident that took place in the college are not conducive in the interest of the smooth functioning of the College. Therefore, the Government on examination of the report of the Director of Collegiate Education and the report of the Committee constituted to resolve the issue relating to the American College, Madurai, had decided to issue show cause notice to the management of the College as to why it should not be held responsible for administrative lapses and irregularities in the college. Therefore, the petitioners were directed to show cause as to why the Government should not suspend the Management of American College and appoint a Special Officer to the college under Section 14A of the TNPCR Act, 1976. The petitioners were directed to show cause within 15 days. 13.The contentions of the petitioners were that Section 14A of the TNPCR Act is violative of Article 30(1) of the Constitution. Already a division bench of this court in The Society of the https://hcservices.ecourts.gov.in/hcservices/ Brothers of the Sacred Heart of Jesus, Palayamkottai and others Vs. The State of Tamil Nadu and another reported in 1992 (II) MLJ 514 has held that Sections 18A and 18B of the Tamil Nadu Recognised Private Schools (Regulation) Act and Sections 14A ad 14B of the TNPCR Act are ultra vires of Article 30(1) of the Constitution and they are held to be not applicable to the educational institutions run by minorities. 14.The said view taken was reiterated by a subsequent division bench in Madras Christian College, Tambaram, Madras Vs. The State of Tamil Nadu and others reported in 1992 (I) MLJ 544. The earlier decision taken by the bench was followed and the court in paragraph 4 held as follows: "4.One more feature which the learned counsel for the third respondent pointed out is that as per Sec.14-B of the Act, there is ample and adequate measure for redressal and relief even where the provisions of Sect.14-A are invoked. When the provision is found to be constitutionally ultra vires, it is no solace to advance a theory that appeal is a remedial measure and on that ground this Court shall not look into the grievance of the petitioner founded on violation of Art.30(1) of the Constitution of India. 5.The result is that this writ petition is ordered in the following terms: We hold that Secs.14-A and 14-B of Chapter III-A of the Act are not applicable to the petitioner...." 15.Therefore, in the light of these pronouncements, the petitioners want the impugned order to be set aside. In paragraph 17 of the affidavit in the first writ petition, the petitioner made an interim prayer, which is as follows: "17.I further submit that the Government has to disburse the salaries of the teaching and the non- teaching staff of the American College from the month of December 2010 onwards and that the staff are suffering on account thereof for no fault of the management. It is therefore prayed that this Hon'ble Court may be pleased to direct the first respondent to cause the disbursement of salary to the teaching and non teaching staff of the American College, Madurai, with effect from the date of cessation of such disbursement through its acting Principal and Secretary under the Constitution and Bye-Laws of the Governing Council of the college, pending disposal of the writ petition, and render justice." 16.On behalf of the first respondent, in the position note, the details of various steps taken by the State Government to bring some normalcy in the college was set out including formation of high level committee made by G.O.(2D)No.9, Higher Education Department, dated 18.2.2011 which was chaired by the Chief Secretary and comprised of Principal Secretaries of Home and Higher Education as members. In that position note, it was stated in pages 10 and 11 as https://hcservices.ecourts.gov.in/hcservices/ follows: "Three meetings of the Committee were held on 29.3.2011, 18.4.2011 and 4.5.2011. No amicable settlement was arrived at between the two groups From the findings of the Committee constituted to resolve the issue of American College, Madurai and from the report of the Director of Collegiate Education, it is postulated that the Management has neglected to discharge the duties and functions entrusted to it by the Act and Rules and orders issued from time to time by Government authorities. Accordingly, the Government in Lr.No.3082/E2/2011-1, dated 1.7.2011, has issued Show Cause Notice to both rival parties of American College, Madurai as to why the Government should not suspend the Management of American College, Madurai and to appoint a Special Officer to American College, Madurai under Section 14-A of the Tamil Nadu Private Colleges (Regulation) Act, 1976 within fifteen days from the date of receipt of this letter dated 01.07.2011. Both the parties have not submitted their explanation to the Government so far. Meanwhile, the Honourble High Court in its order dated 19.07.2011 has given an interim stay to Government letter No.3082/E2/2011-1, Higher Education Department, dated 01.07.2011. In the event of vacation of stay petition ordered by the Hon'ble High Court, the Government will take appropriate action as per the provisions under the Tamil Nadu Private Colleges (Regulations) Act, 1976 and the Tamil Nadu Private Colleges (Regulation) Rules, 1976 to appoint a Special Officer to American College for smooth functioning, conducting examinations, classes, etc. and also for disbursement of salary to the teaching and non teaching staff of the American College pending from December 2010." 17.In the counter affidavit filed by the fourth respondent, the history leading to appointment of Dr.R.Mohan as acting Principal and Secretary (petitioner in W.P.No.16823 of 2001) was refuted. It was claimed that as per the constitution of the college, the Vice Principal will automatically become the Principal in-charge. The previous Principal-cum-Secretary had nominated the fourth respondent as the Principal in-charge by virtue of the said post. He is also acting as the Secretary. The Bishop has no authority to appoint any acting Principal and he being the Vice Principal, he alone can discharge function as the Principal In-charge of the American College as per the Constitution of the Governing Council of American College. Several incidents in the campus was engineered by the Bishop by using his henchmen. The previous Principal had handed over the charge to him and the Governing Counsel in its meeting held on 06.12.2010 had permitted him to continue as the Principal in-charge. Therefore, this court must recognize the fourth respondent as the https://hcservices.ecourts.gov.in/hcservices/ only person who is competent to discharge the function of the Principal in-charge and Secretary. 18.Mr.P.Godson Swaminath, learned counsel for the fourth respondent had also stated that even as early as 06.11.2007, the Madurai Bench of this Court in M.P.(MD)Nos.1 to 5 of 2008 in W.P. (MD)No.7844 of 2008 had given a direction to the Joint Director of Collegiate Education, Madurai Region to effect payment of salary to the teachers and did not agree with the contentions of the Bishop (petitioner in W.P.No.16822 of 2011). Therefore, their prayer for direction to grant salary through them should not be entertained. 19.However, this court is not inclined to go into the question as to who is the Principal in-charge of the American College in these two writ petitions including the question of recognition of such Principal in-charge who will be allowed to Act as the secretary of the College. On the other hand, the competency of the Bishop and the President of the Governing Council of American College (petitioner in W.P.No.16822 of 2011) cannot be questioned. There is no such objection raised by any one of the parties. In fact the impugned notice itself was addressed to him. Therefore, he has locus standi to challenge the impugned show cause notice. 20.The only question to be decided is whether Section 14A of the TNPCR Act under which the impugned notice was given is ultra vires of Article 30(1) and whether on that ground, the show cause notice can be interdicted? 21.Mr.I.Arokiasamy, learned Government Advocate (Education) contended that subsequent to the division bench judgment, the Supreme Court had pronounced the sweep and width of Article 30(1) of the Constitution and various regulatory measures that are made by the State are held to be valid, the right to administer does not include the right to mal-administer. Therefore, Chapter IIIA is application to minority institutions. It is only in case where the College management neglected to discharge any of its duty imposed on it or indulged in mal-administration, lapses or irregularities in private colleges, the State Government can appoint a Special Officer. When the Special Officer is being appointed, the State will see to it that he himself belongs to the same minority religious group. Therefore, at the stage of show cause notice, there should not be any interference. But, however it must be noted that as against the judgment of the division bench in Madras Christian College case (cited supra), the aggrieved teachers went to the Supreme Court in SLP(Civil)No.7437 of 1992 and leave was granted. Subsequently the entire education batch relating to the Private Schools Act / Private Colleges Act covered by W.P.No.4478 of 1974 batch of the division bench judgment, dated 17.12.1975 and other connected matters were remitted back for a fresh disposal by this court with a direction that the issue relating to the application of two education Acts should be done in the light of the dictum made by https://hcservices.ecourts.gov.in/hcservices/ a larger bench of the Supreme Court in T.M.A. Pai Foundation v. State of Karnataka reported in (2002) 8 SCC 481. 22.The order of the Supreme Court reads as follows: “The several questions raised in these matters are covered by the decision of a Constitution Bench of this Court in T.M.A.Pai Foundation & Ors., etc. V. State of Karnataka & Ors., etc., Writ Petition No.317/1993 and connected batch decided on 31st October, 2002. Since larger questions have been decided by this Court, it becomes necessary for the High Courts to re-examine the matters which have been decided and which are in Appeal before this Court. The orders of the high Court are, therefore, set aside without expressing any opinion on merits and the matters are remitted to the High Court for fresh consideration in accordance with law. Status quo shall continue unless the High Court so decides to modify the same by an appropriate Application made to it by any of the parties. The parties are at liberty to file fresh pleadings, if any, within the period fixed by the High Courts. It is made clear that all statutory enactments, orders, schemes, regulations will have to be brought in conformity with the decision of the Constitution Bench of this Court in T.M.A. Pai Foundation's case decided on 31.10.2002. As and when any problem arises the same can be dealt with by an appropriate Forum in an appropriate proceeding. The Appeals are disposed of accordingly.” (Emphasis added) 23.Since the said issue is yet to be pronounced after remand, this court will have to proceed on the basis that until such decision is rendered, the status quo has to continue. As to what was meant by the term "status quo" found in the order of the Supreme Court came to be considered by the subsequent division bench of this court in A.Belavendran Vs. The joint Director of School Education and others reported in 2010 (1) CWC 343 and in paragraph 18 of the said judgment it was observed as follows: “18.Therefore, the words “status quo” shall be construed only with regard to those provisions, which were declared as inapplicable insofar as they apply to the particular schools.....” 24.Therefore, in these writ petitions, collaterally this court cannot held that Section 14A of the TNPCR Act is still applicable to a minority institution and one has to wait for the direct pronouncement on the said issue. But, it will not be out of place to refer to the answer with reference to the application of statutory provisions to the minority run colleges, which was rendered by the Supreme court in T.M.A. Pai Foundation's case (cited supra). Therefore, it is necessary to refer to the question posed in Q5C and https://hcservices.ecourts.gov.in/hcservices/ the answer given by the Supreme Court which is found in paragraph 161 which is as follows: "Q. 5. (c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions and regulation of fees, etc. would interfere with the right of administration of minorities? A. So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to a university or board have to be complied with, but in the matter of day-to-day management, like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself." 25.Therefore, as long as Section 14A of the TNPCR Act is held to be inapplicable to minority institutions and until the earlier division bench judgments, i.e., 1992 (II) MLJ 514