1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22.08.2011 CORAM: THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.(MD)No.4941 of 2011 T.Rengarajan ... Petitioner Versus 1. The Director of School Education, O/o. Director of School Education, Chennai 600 006. 2. The Chief Educational Officer, O/o. Chief Educational Officer, Madurai 625 002. 3. The District Educational Officer, O/o. District Educational Office, Madurai 625 002. 4. The Secretary, Madura College Board, T.P.K. Road, Madurai. ... Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of Writs of Mandamus, directing the respondents to consider the representation preferred by the petitioner, dated 10.11.2010, to regularise the service of the petitioner in the fourth respondent's Educational Institutions, with effect from 01.09.1982 and to pay all attendant and service benefits. For Petitioners .. Mr.T.Chandrasekaran For Respondents 1 to 3 .. Mr.Pugalendhi, AGP For 4th Respondent .. Mr.P.C.Saravanan O R D E R Seeking for a Mandamus, directing the respondents to regularise the services of the petitioner in the post of Clerk-cum-Typist, with effect from 01.09.1982, the writ petition has been filed. 2. It is the case of the petitioner that he was initially appointed as Clerk-cum-Typist on a consolidated pay in Madura College, Madurai, fourth respondent herein, on 04.09.1982, which is an aided institution. Thereafter, he was promoted as Senior Clerk and presently working in Sethupathi Higher Secondary School, Madurai. According to him, he passed SSLC and typewriting (English and Tamil) and also acquired knowledge in Computer. He made a representation, dated 10.11.2010, to the fourth respondent to regularise his services. As the same has not been considered, he approached this Court for the relief as stated supra. To support to his contention, he has placed reliance on a decision of the Apex Court in State of Karnataka v.Uma Devi reported in 2006 (4) SCC 1 and the Division Bench judgment made in W.A.(MD)No.151 of 2011, dated 21.02.2011, https://hcservices.ecourts.gov.in/hcservices/ 2 where a decision of the learned Single Judge, to regularise the services of the appellant therein was confirmed. 3. On the basis of the counter affidavit filed by the Secretary, Madura College Board, Madurai, learned counsel for the fourth respondent made a preliminary objection to the maintainability of the writ petition. Inviting the attention of this Court to the Certification of Incorporation of Madura College Board, dated 27.01.1905 and the Memorandum and Articles of Association of Madura College Board, dated 12.06.1905, he submitted that the fourth respondent is a registered company under the Companies Act and therefore, the Writ Petition against the Company is not maintainable. 4. As regards employment of the petitioner in the institution of the fourth respondent-Board, learned counsel for the fourth respondent further submitted that the Board is administered by a Board of Directors, elected from among its members and it is running Madura College (Autonomous), which is an aided College, governed by the Tamil Nadu Private Colleges Regulation Act, Rules and Regulations. It also runs Madura College (Evening) under Self Financing. That apart, two aided Schools, viz., Madura College Higher Secondary School and Sethupathi Higher Secondary School, are also run by the Board, besides, a Primary Section. 5. He further submitted that for the purpose of the management of the Board and its properties, the Board has appointed its own staff. These staff are interchangeable and they work in anyone of their institutions, wherever their services are required. According to him, the petitioner is one such person, who was appointed as Clerk cum Typist in the year 1982. He worked in Madura College Higher Secondary School for 4 years and thereafter, Madura College (Evening) and then again, Madura College Higher Secondary School and currently, he is working in Sethupathi Higher Secondary School. He also submitted that the appointment of the petitioner was not against any sanctioned post granted to the School and as he is a Board staff, the salary is being paid only by the board with its own funds and not through the government grant. 6. Learned counsel for the fourth respondent further submitted that whenever the Directorate of College Education or the Director of School Education, allows the fourth respondent to fill up the vacancies in any of the sanctioned Posts in the non-teaching category in Madura College or in the two Schools, stated supra, the same could be made only through publication in newspapers, calling for eligible candidates and through notification to the Employment Exchange. Each sanctioned post has to be filled up only as per the age, qualifications and roster and though the petitioner had appeared for appointment to the notified post, he was not found suitable. 7. Learned counsel for the fourth respondent submitted that when the College run by the fourth respondent, is governed by the provisions of the Private Colleges Regulation Act and the Schools run by the Board, are governed by the provisions of Private Schools Regulation Act and when the salary is being paid from the grant, wherever applicable, except the board staff and inasmuch as the fourth respondent is a company registered under the Companies Act, the present writ petition filed by the petitioner is not maintainable. He further submitted that as a Board staff, the petitioner https://hcservices.ecourts.gov.in/hcservices/ 3 is getting the benefits under ESI and EPF and therefore, it is not open to him to claim that he is working against a sanctioned post in the School and hence, not entitled to seek for regularisation. He further submitted that the concept of regularisation is not applicable to the companies and the judgments relied on by the petitioner are liable to be rejected. 8. Learned counsel for the fourth respondent further submitted that the petitioner's wife has applied for a teaching post, when there was a vacancy in one of the Schools run by the fourth respondent-Board, which was permitted to be filled up by the educational authorities. As she had satisfied the norms for being selected as a Teacher, she was appointed in one of the Schools run by the fourth respondent. Whereas, the petitioner, who has failed in the selection process for appointment in the School, against the non-teaching vacancies, sanctioned by the educational authorities, has projected the case, as if, he is a staff of the educational institution and sought for regularization. 9. Learned counsel for the fourth respondent further submitted that the educational authorities, respondents 1 to 3, have no control or authority over the fourth respondent-Board or its employees, as the Board is a company registered under the Companies Act and governed by a Board of Directors and not a State, as defined in Article 12 of the Constitution of India. In support of the contention that the petitioner has been appointed and being paid salary only by the Board, copies of the orders of appointment issued in respect of some other Board staffs were produced. Copy of the acquintance register for teaching and non-teaching staffs from January' 2011, pertaining to the Madura College Board, Setupathi Higher Secondary School, Madurai, has also been produced. For the reasons stated supra, he submitted that the writ petition is liable to be dismissed. 10. Though copies of the proceedings of the District Educational Officer, Madurai, third respondent herein, granting aid to the staffs of the Madura College Higher Secondary School, Madurai and Setupathi Higher Secondary School, Madurai, for the months, from January' 2011 to May' 2011, are produced, no counter affidavit has been filed by respondents 1 to 3. Heard the learned counsel for the parties and perused the materials available on record. Points 11. Points for consideration in this writ petition are, (i)Whether Madura College Board, a company registered under the Companies Act and amenable to writ jurisdiction under Article 226 of the Constitution of India? (ii)Whether a person appointed by the Board to function as Clerk in any Educational Institution, established and managed by the Board, can seek for regularization in the Educational Institution, in which, he is working? Formation of Madura College Board 12. A perusal of the Certification of Incorporation of Madura College Board, dated 27.01.1905, shows that under the provisions of Section 26 of Indian Companies Act, VI of 1882, the Governor in Council was pleased to direct the Madura College Board to be registered with a limited liability, https://hcservices.ecourts.gov.in/hcservices/ 4 but without the addition of the word "Limited" to its name, the following licence has been issued, "Whereas the "Madura College Board" is an association formed under the Indian Companies Act, 1882, as a limited company and whereas it has been proved to the satisfaction of the in Council that it is formed for the purposes set forth in the Memorandum of Association, and that it is the intention of the Board to apply the profits or other income of the Board to promoting those purposes and that the payment of any dividend to is members is prohibited by the fourth article of the Memorandum of Association, the Government in Council is pleased to direct under the provisions of section 26 of the said act that the "Madura College Board" shall be registered with limited liability but the addition of the word "Limited" to its name." 13. From perusal of the Memorandum and Articles of Association of Madura College Board, dated 12.06.1905, the objects of the Association inter-alia are, "a) To conduct and manage the institutions designated the Madura College, Setupati High School, and their Feeders and Branches now in existence or which shall hereafter come into existence in the Town of Madura or elsewhere in the District; and which are intended to promote Hindu Religion, Hindu Culture and Hindu Civilisation and to strengthen the ideals for which they stand. b) To enlarge or modify the aim and scope of the education imparted in the said institutions and their Feeders and Branches and change their designations according to such improved or modified conditions." 14. Articles of Association of Madura College Board, Madurai, shows that the various institutions comprised in para 3 clause (a) of the Memorandum of Association and others which have been founded and which may hereafter come into existence as the case may be stand for the support, promotion, and the furtherance of Hindu Religion, Hindu Culture, Hindu Civilization and to strengthen the ideals for which they stand. 15. The control and management of the Board, as per Article 04, are as follows: "04. The Control and Management of the Madura College and the various educational institutions aforesaid shall be vested in the following five bodies who shall perform their respective functions: 1. The Madura College Board (General Body) 2. The Board of Directors 3. The Madura College Committee formed under the provisions of the Tamil Nadu Private College (Regulation) Act 1976, (President's Act 19 of 1976) https://hcservices.ecourts.gov.in/hcservices/ 5 4. The Setupati Hr. Sec. School Committee formed under the provisions of the Tamil Nadu recognized private schools (Regulation) Act 1973 (Tamil Nadu Act 29 of 1974), and 5. The Madura College Hr. Sec. School Committee formed, under the provisions of the Tamil Nadu recognized private schools (Regulation) Act, 1973 (Tamil Nadu Act 29 of 1974). 16. The constitution of the Madura College Board, is given in Article 05. Functions of the Madura College Board (General Body), provided in Article 17 of the Articles of Association of Madura College Board are as follows: "The Madura College Board (General Body) shall exercise the following functions: i). Consideration and adoption of accounts, Directors' Report and Auditor's Report. ii). (As substituted) Election of Directors and the office bearers viz. a) President, a Secretary, and a Treasurer b) Nomination of all the elected Directors only of The Madura College Board to i) The Madura College Committee ii) The Setupati Hr. Sec. School Committee iii) The Madura College Higher Secondary School Committee iv) Nomination and election to the office of the President and Secretary or any other elected Director of the Madura College Board to the following: (a) The Madura College Committee (b) The Setupati Hr. Sec. School Committee (c) The Madura College Hr. Sec. School Committee. iii). Appointment of auditors and fixing their remuneration. iv). Purchase, acquisition, alienation, mortgage, sale, creating a chare etc. of immovable properties. v). Remitting or writing off of debts and arrears etc. vi). Such other items that may be referred by the Board of Directors, the Madura College Committee, the Setupati Hr. Sec. School Committee and Madura College Higher Secondary School to the General Body. 17. Functions of the Board of Directors, as provided in Articles 18 to 22, are as follows: "18. Function of the Board of Directors, the Madura College Committee, the Setupati Higher Secondary School Committee and the Madura College Higher Secondary School Committee. The Management of the finance and the properties of the Madura College and the other institutions shall be https://hcservices.ecourts.gov.in/hcservices/ 6 vested with the Board of Directors. The other administrative functions of all the institutions except the Town Primary School vest with the respective Committees of the institutions while in the case of Town Primary School it shall vest with the Board of Directors. 19. The Board of Directors shall pass the budget of income and expenditure, annual and supplementary, framed and presented by the Secretary, with the assistance of the Heads of Institutions at a meeting held for the purpose with such changes and modifications, as it may deem fit at the beginning of the year. 20. All appointments, permanent or temporary, transfers, promotion suspension, removals and dismissals of the members of the staff and fines imposed on them shall be determined by the respective Committee of the respective institutions, while those pertaining to the Town Primary School shall be determined by the Board of Directors. While making appointments the rules prescribed by the U.G.C., Madurai Kamaraj University, and the Director of Collegiate Education, shall be followed in respect of the Madura College and the rules prescribed by the education Department, the Director of School Education and the Govt, hall be followed in respect of Setupati Higher Secondary School and M.C. Higher Secondary School and the Town Primary School. Proviso to article 20 both paragraphs: Both paragraphs to be deleted and substituted as follows: The menial staff including cooks, servers, grinders, of the Hostels of the Madura College shall be appointed by the Secretary, Madura College Board in consultation with the Warden of the Hostels and the same shall be subject to ratification by the Board of Directors. 21. The President and the Secretary of the Madura College Board shall be the President and Secretary respectively of the Madura College Committee, the Setupati Higher Secondary School Committee and the M.C. Higher Secondary School Committee. The Secretary shall be the Chief Executive of Madura College Committee, Setupati Higher Secondary School Committee and the M.C. Higher Secondary School Committee respectively. "The Secretary of the Madura College Board shall be the Manager of Town Primary School" be and hereby added at the end in Article 21. 22. As regards to both Teaching and Non-Teaching staff of the Madura College, Setupati Higher Secondary School, Madura College Higher Secondary School, the heads of institutions may recommend to the respective Committee for taking necessary disciplinary action against any erring members of the staff. In the case of employees of Madura https://hcservices.ecourts.gov.in/hcservices/ 7 College Hostels and Town Primary School, the heads of institutions may recommend to the Board to take disciplinary action. Pending taking of the disciplinary action against the erring employee by the concerned committee or by the Madura College Board, the heads of institutions may suspend the erring employee for any reasonable cause." 18. Article 39 deals with the power to make by-laws and the said Article reads as follows: "The Board of Directors may from time to time frame bylaws for the general management of the college and the aforesaid institutions, the conduct of business, for holding of meetings, for framing the procedure therein and for other matters as it may deem fir not inconsistent with the Memorandum and Articles of Association and such bylaws shall have due effect." 19. Sub-Committees are dealt with in Article 40 and the same is extracted hereunder: "The Board of Directors may constitute special Sub- Committees consisting of members of the College Board (General Body) whether belonging to the Board of Directors or not or of the College Staff, or of experts or of other suitable persons outside the College Board consisting in part of each of these groups for investigation and reporting on or for doing any special work connected with the executive, administrative or academic side of the College and the other aforesaid institutions." Provisions 20. Section 2(3) of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (hereinafter referred to as "the Act") defines, "Educational Agency" as follows: "(3) “Educational agency” in relation to:- (a) any minority school, means any person who, or body of persons which, has established and is administering or proposes to establish and administer such minority school; and (b) any other private school, means any person or body of persons or a company or corporation owned or controlled by the central or state government permitted or deemed to be permitted under this Act to establish and maintain such other private school. 21. Section 2(7) of the abovesaid Act defines "Private School", which means, a pre-primary, primary, middle or high school (or higher secondary school) or any other institution imparting education or training, established and administered or maintained by any person or body of persons, and recognized by the competent authority under this Act but does not include a school or an institution:- https://hcservices.ecourts.gov.in/hcservices/ 8 a. Imparting technical or professional education; b. Established and administered or maintained by the Central Government or the State Government or any local authority; c. Maintained or approved by, or affiliated to, any University established by law; or d. Giving, providing or imparting religious instruction alone, but not any other instruction. 22. As per Section 5 of the Act, the educational agency of every private school proposed to be established on or after the date of the commencement of this Act shall make an application to the competent authority for permission to establish such school by the 30th September of the year preceding the year of opening of the school. As per Section 5-A, the educational agency of every higher secondary school which is a private school and in existence on the date of publication of the Tamil Nadu Recognised Private Schools (Regulation) Amendment Act, 1987, in the Tamil Nadu Government Gazette, shall, before the expiry of six months from that date, make an application to the competent authority for permission to continue to run such school. 23. Rule 5(5) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, is the corresponding rule to the abovesaid Section and it deals with the requirement of the educational agency to seek permission to continue to run such school, which was in existence from the date of commencement of the Act. 24. Section 6 of the abovesaid Act deals with the grant of permission and it reads as follows: "On receipt of an application under sub section (1) of section 5 or sub-section (1) of section 5-a, as the case may be, the competent authority; (a) may, after considering the particulars contained in such application, grant or refuse to grant the permission; and (b) shall communicate its decision giving reasons therefor to the applicant within a period of four months from the date of such receipt in complete shape by the competent authority; provided that the permission shall not be refused under the section unless the applicant has been given an opportunity of making the representations." 25. Rule 7 of the abovesaid Rules is the corresponding rule to the abovesaid Section. 26. Section 8 of the Act deals with the approval of transfer and as per sub-Section 1(a) of the said Section, whenever there is any change in the constitution of the educational agency that agency shall apply to the competent authority for approval of such change. https://hcservices.ecourts.gov.in/hcservices/ 9 27. Chapter IV deals with constitution of School Committee and its functions. Sections 15 is extracted hereunder: "15. (1) every private school shall have a duly constituted school committee which shall include the headmaster of the private school and the senior most teachers employed in the private school provided in sub-section(2). Provided that where an educational agency is a company or corporation owned or controlled by the central or state government and such educational agency has established and administering or maintaining more than one private school, such private schools may with the prior permission of the Director concerned have a common school committee consisting of all heads of such private schools and such number of senior most teachers employed in such private schools as provided in sub section (2). (2) The number of representatives of the teachers on such constituted school committee shall be such as may be prescribed in the Rules issued under this Act and different number of representatives may be prescribed for different classes of private schools. 28. Rule 12 empowers the educational agency of every private school to constitute a School Committee. 29. Section 16 of the abovesaid Act speaks about the Secretary of the School Committee and the said Section reads as follows: "16. (1) Every school committee shall have a secretary who shall exercise such powers and perform such functions as may be prescribed. (2) Every person holding office as president, secretary, manager or correspondent of private school or exercising the powers of secretary under this Act on the date of the commencement of this Act shall be deemed to be a secretary under this Act." 30. Rule 13 is the corresponding rule to the abovesaid Section, which states that the educational agency shall nominate one of its representatives as Secretary of the School Committee. Provided that it shall be open to the educational agency to nominate the Headmaster as Secretary. Sub-Rule (3) of the said Rule, also states that the Secretary of the School Committee shall function for and on behalf of the School Committee and the educational agency. As per Rule 21, every educational agency shall send on or before the 1st January of each year, commencing from 1st January 1975, to the District Educational Officer concerned a statement in triplicate of all movable properties and of all immovable properties. 31. Section 18 deals with the functions of the School Committee and the responsibility of educational agency under the Act. Sub-Section (2) of the said Section states that the educational agency shall be bound by https://hcservices.ecourts.gov.in/hcservices/ 10 anything done by the school committee in the discharge of the functions of that committee under this Act. 32. Chapter IV-A deals with appointment of Special Officer in certain cases and as per Section 18-A, where the Government, on receipt of a report from the Director or otherwise, are satisfied that the management of any private school:- (i) is responsible, whether on or after the date of commencement of the Tamil Nadu Recognised Private School (Regulation) and Private Colleges (Regulation) Amendment Act, 1982, for the mal administration, lapses or irregularities of such private school; or (ii) has neglected whether on or after the date of commencement of the Tamil Nadu Recognised Private Schools (Regulation) and Private Colleges (Regulation) amendment Act, 1982 to discharge any of the duties imposed or to perform any of the functions entrusted to such management by or under this Act, or any rule or order made or direction issued thereunder, the Government may, after giving to such management an opportunity to make representation and for reasons to be recorded in writing, by an order suspend the management and appoint a special officer for a period not exceeding one year or till the reconstitution of the management( in accordance with the law applicable to the reconstitution of such management), whichever is later: Provided that in no case the maximum period of such suspension of management shall exceed two years irrespective of the reconstitution of the management in accordance with the law applicable to the reconstitution of such management: Provided