IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.01.2009 CORAM THE HONOURABLE MS. JUSTICE S.NAGAMUTHU Writ Petition No.23923 of 2008 and M.P.Nos.1 and 2 of 2008 Thirumurugan Aided Middle School, Rep. by its Manager-K.Karthikeyan Madhavacheri, Kallakurichi Taluk, Villupuram District – 606 207 ..Petitioner -Vs- 1. The State of Tamil Nadu Rep. by the Secretary Government, School Education (C-2) Department Secretariat, Chennai – 600 009 2. The Director of Elementary Education D.P.I. Buildings, College Road, Chennai – 600 006 3. The District Collector, Villupuram District, Villupuram 4. The District Elementary Educational Officer, Villupuram, Villupuram District – 605 602 5. Mrs. Sudanthira President, Madhavachery Panchayat, Madhavachery, Kallakurichi Taluk, Villupuram District – 606 207 6. S.Santha Kumar 7. S.Rajendran 8. M.Kaliyamoorthy 9. V.Sankar 10 V.Murugesan 11. G.Periyasamy 12. N.Kumudha https://hcservices.ecourts.gov.in/hcservices/ 13. P.Devanath 14. G.Santhi (R-6 to R-14 impleaded as per the order dated 07.01.2009 in M.P.No.1 of 2009 in W.P.No.23923 of 2008) .. Respondents Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari by calling for the records from the first respondent in connection with his proceedings in G.O.(1D) No.315, School Education (C-2) Department, dated 19.09.2008 and quash the same. For Petitioner : Mr. R.Singaravelu, for Mr. V.S.Jagadeesan For Respondents : Mr. G.Sankaran, Spl. G.P., for R-1, R-2, R-3 and R-4 Mr. Shanmugasundaram, Senior Counsel for Mr. L Baskaran, for R-5. Mr. C.Selvaraj, Senior Counsel Mr. S.Mani, for R-6 to R-14 O R D E R The petitioner is an aided middle school represented by its Manager governed by the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973. In this writ petition the petitioner challenges G.O.(1D) No.315, School Education (C-2) Department, dated 19.09.2008. 2.The facts of the case in brief are as follows:- The petitioner school was established in the year 1908. There are classes up to VIII Standard from I standard. The petitioner made an application to the authorities on 19.03.2008 seeking to upgrade the school into one of a high school. Since no action whatsoever was taken on the same, he filed W.P.No.9932 of 2008 before this Court seeking for appropriate directions. This Court, by order dated 23.04.2008, without expressing any opinion regarding the merits of the writ petition, directed the authorities concerned to consider the representation of the petitioner dated 19.03.2008 and pass orders within a period of six weeks from the date of receipt of a copy of the order after affording sufficient opportunity to the petitioner. 3.It is the grievance of the petitioner that even after the said order, his representation was not considered and therefore, he proposed to initiate contempt proceedings against the fourth respondent. At that stage, the fourth respondent passed an order https://hcservices.ecourts.gov.in/hcservices/ refusing to upgrade the school as the High School. In the same order, the fourth respondent ordered for direct payment of salary to the Teachers. Challenging the said direction, the petitioner has filed W.P.No.17992 of 2008 which is also pending before this Court. 4.While so, according to the petitioner, the fifth respondent who is the President of the Local Panchayat Board made an attempt to construct a "Karumathi Shelter" near the School. The same was objected to by the petitioner and other interested persons. To restrain the fifth respondent from constructing any such shelter, the petitioner filed W.P.No.34584 of 2007 before this Court. 5.At this juncture, though it is not stated in the affidavit of the petitioner, the following facts which were brought to the notice of this Court during the arguments need to be mentioned. 6.Before W.P.No.34584 of 2007 was filed, the brother of the petitioner, Mr.Elango, filed a Civil Suit before the learned District Munsif Court, Kallakurichi, praying for a decree for an injunction to restrain the fifth respondent herein from putting up any Karumathi Shelter near the school. The suit was ultimately dismissed as Mr. Elango namely the brother of the petitioner has got no locus standi. The appeal preferred by Mr.Elango namely the brother of the petitioner against the decree and judgment of the learned District Munsif Court, Kallakurichi, was also dismissed. Thereafter, the petitioner filed another suit before the District Munsif Court, for the same relief, but no interim order of injunction was granted by the learned District Munsif as prayed for by the petitioner. When the said suit was pending and his request for interim order was pending, by suppressing the same, the petitioner filed W.P.No.34584 of 2007 before this Court. 7.When W.P.No.34584 of 2007 was heard at length, it was brought to the notice that the petitioner had suppressed all the above facts in the affidavit filed in support of W.P.No.34584 of 2007 and had thus attempted to abuse the process of Court. Therefore, this Court dismissed W.P.No.34584 of 2007 by order dated 22.01.2009 with cost of Rs.5,000/-. 8.Coming back to the facts of the present case, the petitioner has further averred in the affidavit that because of the above stated personal ill-motive, the fifth respondent had instigated the students not to attend the classes and had also instigated the parents to get the transfer certificates of the students. Accordingly, large number of students got transfer certificates. Thus, the strength of the students in the school has been considerably reduced to around 50. Several attempts made by the petitioner through the Governmental Agencies to convince the parents of the students to readmit the students in the school also failed. It is admitted that a new school has been started in the same https://hcservices.ecourts.gov.in/hcservices/ village and the students have been admitted there. In those circumstances, the Government has issued G.O.(1D) No.315, School Education (C-2) Department, dated 19.09.2008 which has got three components as follows:- "(i) to start a new Panchayat Union Middle School in a village during Academic year 2008- 2009; (ii) closure of the petitioner School; (iii) to re-deploy the teacher for working in the school to other schools where there are vacancies." It is this Government Order which is put under challenge in this writ petition. 9.The contention of the petitioner is that the order impugned is, at the outset, without jurisdiction. The learned counsel would take me through the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (hereinafter referred to as "the Act") and the Rules to substantiate his contention that power to withdraw recognition is vested only with the competent authority namely in the instant case, the Chief Educational Officer and no such power to withdraw the recognition has been given to the Government. He would further submit that, of course, the Government has got power to order closure of any school; but according to Section 29 of the said Act, such closure can be ordered only at the instance of the Management that too after complying with various other conditions enumerated in the section itself. He would further submit that before passing the impugned order, no opportunity whatsoever, was given to the petitioner and thus, the order has been passed in gross violation of the principles of natural justice. On this ground also, according to the petitioner, the impugned order is liable to be quashed. Lastly, it is the contention of the petitioner that the impugned order has been actuated by malice on the part of the officials as well as the fifth respondent. Simply because the petitioner was proposing to initiate contempt proceedings against the fourth respondent for not having complied with an earlier order of this Court as narrated above, the fifth respondent as well as the other officials are highly biased against the petitioner. It is his further contention that since the petitioner filed a writ petition before this Court to restrain the fifth respondent from constructing Karumathi Shelter near the School, the fifth respondent is also biased and it is at her instance, that the Government Order has been issued. For all these reasons the petitioner would pray for quashing the impugned Government Order. 10.A detailed counter affidavit has been filed on behalf of the Government, wherein it has been narrated as to how efforts were https://hcservices.ecourts.gov.in/hcservices/ taken to resolve the issue in the interest of the students. It is also stated that despite all the efforts taken including Peace Committee Meeting, the parents of the students refused to readmit the students in the petitioner school. It is further stated that the villagers made a request for an establishment of a new school and having regard to the interest of the students of the village, the Government passed the Government Order granting permission for establishment of a new Panchayat Union Middle School. Thus, according to the Government, there is no malice on the part of the Government and the order is not at all a motivated order. 11.It is further contended in the counter affidavit by the Government that the strength of the students had fallen far below the economic strength which impelled the Government to issue order to close the school and also to re-deploy the teachers working in the petitioner's School. It is further contended that the Government has got the power to issue such an order to direct the closure of the school under Section 29 of the Act. It is further contended that the power to issue recognition or permission to start a school includes power to withdraw recognition or permission. Thus, according to the Government, the impugned order cannot be stated to be without jurisdiction; it does not suffer from any infirmity and so, no interference is required at the hands of this Court. 12.The fifth respondent has filed a separate counter affidavit denying all the allegations made against the petitioner. I do not propose to elaborate the same in this order since the allegations made by the petitioner against the fifth respondent and the counter allegations made by the fifth respondent against the petitioner are immaterial for deciding the issues involved in this writ petition. 13.Respondents 6 to 14 are teachers working in the petitioner school, who neither support the management nor the Government. According to the learned Senior Counsel appearing for the teachers, they want to work either in the same school or in some other school on re-deployment. But, they are very particular in service and for earning salary for the service so rendered. The learned Senior Counsel would go on record to submit that the Teachers namely respondents 6 to 14 are prepared to work in any school even in case there is re-deployment. The said statement is recorded. 14.I have considered the rival submissions made by the learned counsel on either side and also perused the records thoroughly. 15.Before adverting to the facts involved in the case let me first analyse the legal position by making a survey of various provisions of the said Act and the Rules. https://hcservices.ecourts.gov.in/hcservices/ 16.Section 11 of the Act speaks of recognition of Private Schools and Section 12 speaks of power to withdraw recognition by competent authority. Section 12 of the Act reads as follows:- "12. Withdrawal of recognition by competent authority. - (1) The competent authority may withdraw permanently or for any specified period the recognition of any private school - (i) which does not comply with any of the provisions of this Act or any rules made or directions issued thereunder in so far as such provisions, rules or directions are applicable to such private school, or (ii) in respect of which the pay and allowances payable to any teacher or other person employed in such private school are not paid to such teacher or other person in accordance with the provisions of this Act or the rules made thereunder, or (iii) which contravenes or fails to comply with any such conditions as may be prescribed. (2) Before withdrawing the recognition under sub-section (1), the competent authority shall give the educational agency an opportunity of making its representation. (3) The competent authority, on withdrawal of the recognition of a private school under sub- section (1), shall make necessary arrangements for the continuance of the instruction of the pupils of the said private school in other recognised private schools. 17.As rightly pointed out by the learned counsel for the petitioner, power to withdraw recognition is vested only with the competent authority. As per Rule 10 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 (hereinafter referred to as "the Rules") in respect of pre-primary, primary and middle schools, the competent authority is the Chief Educational Officer concerned. Further, as provided in Section 12, sub-clause (2), before any order of withdrawal of recognition is passed, the competent authority is required to afford an opportunity to the Educational Agency to make representation. 18.In the case on hand, the impugned order is not one of withdrawal of recognition but an order to close the school. When a specific query was posed on the learned Special Government Pleader, as to whether the impugned order can be read as an order of https://hcservices.ecourts.gov.in/hcservices/ withdrawal of recognition, the learned Special Government Pleader would submit that it is only an 'order of closure' and not an 'order of withdrawal'. There can be no doubt that an order withdrawing the recognition can be passed in respect of a middle school only by the Chief Educational Officer. Since, it is not the case of the Government that the impugned order is an order of withdrawal of recognition I need not dwell more on Section 12. 19.Let me now proceed to know the legal position regarding the power of closure of school. Except Section 29 of the Act, there is no other provision in the Act empowering any other authority to order for closure of a school. Correspondingly, Rule 20 speaks of conditions for closure of private school, class and course of instruction therein. According to these two provisions, a school can be ordered to be closed by the competent authority only at the instance of the Educational Agency. In the case on hand, it is not as though any request was made by the petitioner Educational Agency seeking permission to close the school. When the Government has not been empowered to order for closure of a school under Section 29 of the Act and in the light of the legal position that the competent authority alone has been empowered to order for closure of a school that too, only at the instance of the educational agency, in my considered opinion, the impugned order for closure of the school passed by the Government is undoubtedly without jurisdiction. 20.Section 34 of the Act speaks of taking over of management of private school. Here, power has been given to the Government to pass an order taking over a school. As found in the proviso to Section 34 sub-clause (1), even such power to take over a school can be passed only after an order suspending the management has been passed under Section 18-A of the Act. In this case, the Government has not decided to take over the management of the petitioner school. 21.The Special Government Pleader appearing for respondents 1 to 4 would submit that such power to order for closure of school flows from Section 4 of the Act. Section 4 of the Act reads as under:- "4.New private school to obtain permission.-Save as otherwise expressly provided in this Act, no person shall, without the permission of the competent authority and except in accordance with the terms and conditions specified in such permission, establish on or after the date of the commencement of this Act, any private school." 22.The learned Special Government Pleader would submit that power to issue of an order of recognition includes power to withdraw the recognition and power to grant permission includes power to https://hcservices.ecourts.gov.in/hcservices/ withdraw permission. He would further submit that Rule 6 stipulates various conditions to be specified by an Educational Agency for grant of permission. According to him, if any of these conditions are found to have been violated, then, the permission granted already can be withdrawn by the Government. According to him, the power to withdraw permission would tantamount to power to order for closure of a school and such power flows to the Government from Section 4 of the Act and Rule 6. He would further submit that Section 29 of the Act also empowers the Government to do so. But, I find it very difficult to persuade myself to agree with the argument of the learned Special Government Pleader in this regard. A plain reading of Section 4 of the Act would keep things beyond any pale of doubt that power to grant permission for starting of a new school is vested only with the competent authority. According to Rules the Chief Educational Officer is the competent authority in respect of the middle schools. If the contention of the learned Special Government Pleader that power to issue permission includes power to withdraw the permission is to be accepted for the sake of argument, even then, such power is vested only with the competent authority under Section 4 of the Act and not the Government. Same is in respect of Rule 6 also. In respect of Section 29 of the Act, it is a specific provision made in the Act empowering only the competent authority again to grant permission to the Educational Agency for closure of the school. Even here there is no power given either to the Government or to the competent authority to order for closure of any school for any violation whatsoever. 23.The learned Special Government Pleader would rely on Section 21 of the General Clauses Act, 1897 to say that power to issue an order includes power to withdraw the same. But Section 21 of the General Clauses Act is traceable to Central Acts, Regulations, Orders, Rules, by-laws, etc., The said provision has got no application to the state enactments. An attempt was also made by the learned Special Government Pleader to look for an analogues provision in the Tamil Nadu General Clauses Act but in vain. 24.At this juncture, I have to state that the Act is a self- contained Act making elaborate provisions for all kinds of situations in respect of staring of school, withdrawal of permission, taking over of the management of the school by the Government and the closure of the school at the instance of the management. Had it been the intention of the law makers that either the Government or any other competent authority should be empowered to order for closure of the school for certain violations of conditions or for any other reason then nothing would have prevented them from making a special provision regarding the same in the enactment. The very fact that no such provision has been made either in the Act or in the Rule would go a long way to show that it is not the intention of the legislature either to empower the Government or any other authority to order for closure of any school at any kind https://hcservices.ecourts.gov.in/hcservices/ situation except under Section 29 of the Act. That is the reason why the legislature has made Section 34 of the Act to meet the situation where in the opinion of the Government the management has failed to conduct the school the management can be taken over by the Government. In this case for reasons best known, the Government have not initiated any action under Section 34 of the Act. 25.In view of all the above, I have to hold that in respect of closure of the school the impugned order should fall as the same is without jurisdiction. 26.The first part of the impugned order speaks of starting of Panchayat Union Middle School in the same village during the academic year 2008-2009. The power to start such a school is within the domain of the Government which cannot be questioned by anybody including the petitioner. Therefore, to that extent the impugned Government Order deserves to be affirmed. In respect of the third part of the order namely the proposal to redeploy the teachers who are working in the school, it is absolutely within the power of the authorities concerned to consider the matter strictly in accordance with law more particularly in the light of the law laid down by a Full Bench decision of this Court reported in 2005 (5) CTC 385 (Director of Elementary Education v. S.Vigila) and to pass appropriate orders if the situation warrants. 27.It is made clear that this order would not stand in the way of the Authorities from passing any order of redeployment of teachers who are working in the petitioner School after complying with the provisions of the Act that too if the situation warrants so. 28.At this juncture the learned Special Government Pleader would request this Court to clarify that this order would not stand in the way of the Government or the competent authority to proceed against the school in accordance with law after affording sufficient opportunity to the petitioner and strictly complying with the provisions. Accordingly, it is clarified that either the Government or the Competent Authority, in exercise of the powers conferred under law, can proceed further strictly by applying with the provisions. 29.In the result, the writ petition is allowed in part as indicated infra. (i)The impugned order to the extent it directs the closure of the school is quashed. (ii)The impugned order is confirmed in other respects as clarified herein before. https://hcservices.ecourts.gov.in/hcservices/ No costs. Consequently, connected miscellaneous petition is closed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar jbm / srk To 1. The Secretary to Government, State of Tamil Nadu School Education (C-2) Department, Secretariat, Chennai – 600 009. 2. The Director of Elementary Education, D.P.I. Buildings, College Road, Chennai – 600 006. 3. The District Collector, Villupuram District, Villupuram. 4. The District Elementary Educational Officer, Villupuram, Villupuram District – 605 602. + 1 c.c. to Mr. Chandrababu, Advocate. S.R.No.3328. + 1 c.c. to Mr. S. Mani, Advocate. S.R.No.3349. Writ Petition No.23923 of 2008 and M.P.Nos.1 and 2 of 2008 RS (CO) GSK 05.02.2009. https://hcservices.ecourts.gov.in/hcservices/