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Rev.Fr. Francis M. Vincent vs 3 The Joint Director Of on 27 April, 2011

Madras High Court
Rev.Fr. Francis M. Vincent vs 3 The Joint Director Of on 27 April, 2011
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:  27.04.2011
CORAM :
THE HON'BLE MR.JUSTICE V.DHANAPALAN

W.P.No.18102 of 2010
 

REV.FR. FRANCIS M. VINCENT                   [ PETITIONER  ]
SECRETARY  
ST. JUDE'S COLLEGE  
ST. BARBARAS'S CHURCH  
RAMANTHURAI  KANYAKUMARI DT


          Vs

1    THE SECRETARY TO GOVERNMENT                   
     HIGHER EDUCATION  FORT ST.GEORGE  
     SECRETARIATE  CHENNAI 9

2    THE DIRECTOR OF COLLEGIATE
     EDUCATION  COLLEGE ROAD  CHENNAI 6

3    THE JOINT DIRECTOR OF
     COLLEGIATE EDUCATION  
	TIRUNELVELI REGION  
     SAGUNTHALA COMPLEX  
	TIRUNELVELI AND DT
 							[ RESPONDENTS]
	Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of Certiorari calling for the records in Na.Ka. No.18828/F2/2010 dt 4.8.2010 on the file of the 2nd respondent and quash the same as illegal  arbitrary and against the basic principles of natural justice.


		For petitioner	:	Mr.R.Muthukumarasamy,
						Senior Counsel for 
						Mr.S.Senthilnathan

		For respondents:    Mr.S.Gopinathan,AGP

O R D E R

Heard Mr.R.Muthukumarasamy, learned Senior counsel for the petitioner and Mr.S.Gopinathan, learned Additional Government Pleader for the respondents.

2. The Secretary of St. Jude’s College, St. Barbaras’s Church, Ramanthurai, Kanyakumari District has filed this writ petition questioning the order passed by the 2nd respondent in Na.Ka.No.18828/F2/2010 dated 04.08.2010 as illegal, arbitrary and against the principles of natural justice.

3. It is the case of the petitioner that he is the Secretary of St. Jude’s College (hereinafter referred to as “the College”) owned and administered by the Latin Catholic Fisherment’s Educational Society (hereinafter referred to as “Educational Society”), which was formed on 11.08.1978 to organize and conduct educational institutions for developing education in arts, science and other technical courses and to establish such of the institutions to promote the cause of education for the people live along the coast of Thoothoor and Colachal Foranates giving equal representation. It is the further case of the petitioner that all the Parish Priests of Colachal and Thoothoor Foranates are made as ex-officio members of the Society and the total number of members were 34, out of which one Fr.Thobias died on 16.08.2009 and another permanent member Fr.J.G.Jesudas died in March 2010. The petitioner was elected as Secretary of the College in the General Body Meeting held on 30.07.2009 and the same was registered by the District Registrar of Societies, Marthandam on 23.10.2009. Subsequently, the 2nd respondent had also approved him as the Secretary of the College vide proceedings in M.M.No.32088/F2/2009 dated 11.12.2009.

4. In the said General Body Meeting, the Executive Committee Members were also elected. In that meeting one Xavier Alexander was elected as Secretary of the Society. Whileso, the said Xavier Alexander convened an Executive Committee meeting without proper notice to the members and inducted himself as the Secretary of the College. The petitioner has challenged the same before the competent Civil Court in O.S.No.84 of 2010 on the file of the District Munsif Court, Kuzhithurai and in the interim application, an order of status-quo was granted permitting the petitioner to continue as the Secretary of the College, till the disposal of the suit. The 1st respondent had also passed a separate proceedings in Na.Ka.No.18828/F2/2010 dated 11.06.2010 confirming the petitioner as the Secretary of the College pursuant to the order of the Civil Court.

5. By that time, one P.Murphy Alexander who was the Principal of the College was acting against the interest of the College and was causing inconvenience to the administration of the College, colluding with the said Xavier Alexander. Therefore, in the interest of the administration of the college, the educational agency had removed P.Murphy Alexander from the post of Principal and appointed Dr.J.Amaladhas, Associate Professor of the English Department as the Principal of the College in the General Body Meeting held on 26.04.2010.

6. As there was disturbance by the said Xavier Alexander to the day to day administration of the College, a Peace Committee Meeting was held in the presence of the Revenue Divisional Officer, Padmanabapuram on 17.06.2010. In the said Peace Committee Meeting, Xavier Alexander and his group insisted for the continuation of P.Murphy Alexander as the Principal of the College. The petitioner has signed in the Peace Committee Meeting under pressure. The same was done without the approval of the Society. The Society who is the educational agency has not accepted the condition incorporated in the Peace Committee Meeting permitting P.Murphy Alexander as the Principal of the College. The President of the College had also clarified the position to the respondents and the Revenue Divisional Officer by is letter dated 27.07.2010.

7. In that situation, the 3rd respondent had insisted for the signature of P.Murphy Alexander as the Principal of the College to sign the pay bills. As the Secretary of the College, the petitioner is entitled to submit the pay bills. However, the 3rd respondent had insisted for the signature of P.Murphy Alexander as the Principal of the College. This condition of the 3rd respondent was not acceptable for the Society and it was also informed by the President of the Society vide letter dated 27.07.2010. However, even after clarification made by the President of the Society, the 3rd respondent has passed an order to submit the pay bill along with the signature of P.Murphy Alexander. Therefore, an appeal was made to the 2nd respondent on 26.06.2010. The same was rejected by the 2nd respondent by referring the resolution of the Peace Committee Meeting held before the Revenue Divisional Officer on 17.06.2010.

8. According to the petitioner, neither himself nor the Revenue Divisional Officer is having any power to alter or change the resolution passed by the Society. He had been forced to sign the resolution accepting the said P.Murphy Alexander as the Principal of the College and he signed in the Peace Committee without any approval or sanction from the Society. Therefore, his individual acceptance in the Peace Committee meeting could not change the resolutions passed by the educational society removing P.Murphy Alexander and appointing Amaldhass as the Principal of the College. This aspect has not been considered by the 2nd respondent and the appeal has been rejected mechanically vide proceedings in Na.Ka.No.18828/F2/2010 dated 29.07.2010.

9. It is the case of the petitioner that the said order was served on him on 02.08.2010 and on the same day, he preferred an appeal before the 1st respondent viz., the Secretary to Government, Higher Education Department, in SJC-S.No.72/10 dated 02.08.2010 and the said appeal is still pending and they have not been given any personal hearing in the said appeal.

10. Pending the appeal, the first respondent directed the 2nd respondent to take over the administration of the institution as per G.O.Ms.No.1021, Education Department, dated 02.09.1985. Therefore, the 2nd respondent has passed an order in Na.Ka.No.18828/F2/2010 dated 04.08.2010, which is impugned in this petition.

11. The grounds on which the petitioner seeking to quash the said order are as follows:-

(i) it is ex-facie illegal, arbitrary, against the principles of natural justice, without jurisdiction and against the spirit of Section 32 of the Tamil Nadu Private Colleges Regulation Act (hereinafter referred to as the Act).

(ii) The impugned G.O. referred to by the 2nd respondent viz., G.O.Ms.No.1021, Education Department, dated 02.09.1985 is relating to Government Aided Private College and the same is not applicable to the petitioner and therefore, the impugned order is passed on a misconceived notion.

(iii) Since the petitioner being the minority institution, as per Section 2(7) of the Act, there is no statutory violation on the part of the petitioner and hence there is no question of taking over of the administration.

Therefore, the petitioner has prayed for quashing of the order passed by the 2nd respondent.

12. The 2nd respondent has filed a counter affidavit on behalf of the 1st and 3rd respondents also. In the counter affidavit, it is stated that St. Jude’s College, Thoothur, Kanyakumari District is an Aided Minority College controlled by the Educational Agency named Latin Catholic Fishermen’s Educational Society, which received 100% grant from the Government. In the General Body Meeting of the Educational Society held on 30.07.2009, Fr.Francis M.Vincent was elected as the Secretary of the College and the same has been approved by the 2nd respondent in his proceedings M.M.No.32088/F2/2009 dated 11.12.2009.

13. On 17.03.2010, the Educational Society has resolved to remove Fr.Francis M.Vincent from the post of Secretary of the College and simultaneously elected Fr.Xavier Alexander, Secretary of the Educational Society, as the new Secretary of the said College. A proposal for approval of the Secretaryship has been sent to the 2nd respondent. Meanwhile, Fr.Francis M.Vincent has filed W.P.No.4191 of 2010 before the Madurai Bench of this Court praying for an interim injunction restraining the respondents from approving Form VI submitted by the 4th respondent (Fr.Xavier Alexander). On 06.04.2010, the interim order of status-quo already passed was directed to be continued and official respondents were directed to disburse the salary in respect of the teaching and non-teaching staff through the Principal of the College.

14. In the counter of the 2nd respondent, it is further stated that pursuant to the interim order of the High Court dated 06.04.l2010, the 2nd respondent in his proceedings dated 19.04.2010 has permitted the Principal of the College to sign the bills till the revised orders are issued. Whileso, Fr.Francis M.Vincent, Secretary of the College in his letter dated 30.04.2010 has stated that as per the decision of the General Body and Board of Directors Dr.P.Murphy Alexander, the Principal was removed from the Office of the Principal and appointed J.Amaldhas, Associate Professor of English as Principal of the College.

15. It is further stated in the counter affidavit that the High Court in its final order dated 30.04.2010 vacated the interim stay and dismissed the petition and further directed as follows:-

“… it is always open to the petitioner to work out to his remedy in the manner known to law”.

Pursuant to this, the 2nd respondent in his proceedings dated 11.05.2010 has recorded the resolution of the Educational Agency permitting Fr.Xavier Alexander as Secretary of the College.

16. Also it is stated in the counter affidavit of the 2nd respondent that Fr.Francis M.Vincent has filed I.A.No.301 of 2010 in O.S.No.84 of 2010 before the Vacation Court of Nagercoil. The Vacation Court, in its order dated 26.05.2010 has ordered that the petitioner in the suit to continue as Secretary and maintain status-quo till the disposal of the suit. In pursuance of the Court order, the 2nd respondent in his proceedings dated 11.06.2010 has directed that the order dated 11.05.2010 to be kept in abeyance till the disposal of the suit in O.S.No.84 of 2010, giving force to the order dated 11.12.2009.

17. The stand of the respondents in the counter is that due to some problems in the administration of the College, there was a Peace Committee meeting convened in the presence of Revenue Divisional Officer, Ramanathapuram on 17.06.2010, wherein Dr.P.Murphy Alexander was permitted to continue as the Principal of the College. It is pertinent to note that the said meeting was attended by the petitioner.

18. It is also stated that based on the interim orders of this Court made in W.P.(MD) No.4191 of 2010, the 2nd respondent in his proceedings dated 19.04.2010 has permitted Dr.P.Murphy Alexander to sign the pay bills. As such the action of the 3rd respondent is based only on the Court Order and the same is legally valid.

19. As against the action of the 3rd respondent, the petitioner has preferred an appeal to the 2nd respondent and the same was rejected by the 2nd respondent by referring a resolution of the Peace Committee Meeting held on 17.06.2010, in which the petitioner has participated and accepted the resolution of the Peace Committee Meeting and as such the rejection is fair and just.

20. The 2nd respondent has stated further in the counter that in order to ensure smooth functioning of the College and welfare of the students and staff of the College, the Revenue Divisional Officer, Ramanadapuram has convened a Peace Committee Meeting, in which the petitioner has participated and signed the resolution accepting P.Murphy Alexander as the Principal of the College and as such there is no ambiguity in rejecting the appeal filed by the petitioner. Taking into consideration the situation prevailed in the College, the 2nd respondent in his proceedings dated 04.08.2010 has passed orders in terms of G.O.Ms.No.1021, Education Department, dated 02.09.1985 entrusting the works relating to drawal and disbursement of salary to the teaching and non-teaching staff of the College and as such there is no violation of Principles of natural justice and there is no illegality in the order and it is only a temporary measure taken by the respondent till the settlement of the dispute of the management. Since the respondent has not taken over the management of the college permanently and it is only a temporary measure, it need not be given notice and there is no violation of Principles of natural justice.

21. It is further stated that the petitioner is an aided college, which received 100% grant from the Government and therefore, there is no question of non applicability of G.O.Ms.No.1021 to the petitioner institution. During the pendency of the appeal, as stated by the petitioner, sending an international communication to the 2nd respondent is a correspondent between the 1st and 2nd respondents and as such there is no contrary to the Constitution. The 2nd respondent, after taking into consideration the worst situation prevailed in the college has invoked the Government order in G.O.Ms.No.1021 and that being so, question of giving an opportunity to the petitioner does not arise.

22. The 2nd respondent has further stated that the Civil Suit in O.S.No.84 of 2010 has ordered the petitioner in the suit to continue as Secretary and maintain status-quo till the disposal of the suit and in pursuance of the said order, the 2nd respondent in his proceedings dated 11.06.2010 has directed the order dated 11.05.2010 to be kept in abeyance and in view of the situation prevailed in the College, the 2nd respondent has invoked the Government order to empower the 3rd respondent to do certain acts like drawal and disbursement of salary and as such it would not amount to taking over of College by the respondent. Hence, there is no violation of Article 30(1) of the Constitution of India. Due to the un-conducive situation prevailed in the College, a Peace Committee Meeting was convened and resolved to run the College smoothly, which is temporary measure and hence there is no violation of the Fundamental Rights as alleged by the petitioner. Hence, he prayed for dismissal of the writ petition.

23. Mr.R.Muthukumarasamy, learned Senior Counsel appearing for the petitioner would contend that the power of the authority to invoke the jurisdiction to order for direct payment is against the spirit of the regulation and unless the compelling circumstances warrant, the respondent has no power to invoke G.O.Ms.No.1021, Education Department dated 02.09.1995, when there is no dispute in the management of aided colleges. By pointing out the order of this Court made in W.P(MD)No.4191 and 7684 of 2010 dated 30.11.2010, the learned Senior Counsel has contended that in view of the order passed by the 2nd respondent dated 11.06.2010 recognizing the right of Educational Agency in disbursing the salary to the teaching and non-teaching staff of the college, there is no question of going further for ordering direct payment, which is against the spirit of the order of this Court.

24. In his submissions, he also pointed out that the appeal is pending before the 1st respondent and when that being the position, the internal communication of the 1st respondent virtually will amount to disposal of the appeal without hearing the petitioner.

25. The last limb of the submissions of the learned Senior Counsel is that no authority under the Act can go beyond the scope of the provisions of the Act. Even though in the Peace Committee Meeting, certain decision was taken which was resisted by the petitioner and as the Educational Agency has not accepted the view of the individual concerned before the Peace Committee Meeting, the decision arrived by the respondent based on the Peace Committee Meeting by invoking the Government order is contrary to the spirit and provisions of the Act in respect of the minority institution.

26. Per contra, Mr.S.Gopinanathan, learned Government Advocate appearing for respondents 1 and 2 would contend that based on the circumstances and situation prevailed in the college and due to some problems in the administration of the College, a Peace Committee Meeting was convened in the presence of the Revenue Divisional Officer, in which the petitioner had participated and accepted Dr.P.Murphy Alexander as the Principal, based on which the 2nd respondent has taken a decision. However, the matters between the parties are pending in a Civil Court. He would further contend that there is an order of status-quo till the disposal of the suit and in pursuance of the said order, the 2nd respondent has taken a decision, taking into consideration the situation prevailed in the College. Therefore, the impugned order of the 2nd respondent invoking the Government order in G.O.Ms.No.1021 empowering the 3rd respondent to do certain acts like drawal and disbursement of salary cannot be construed as taking over of the Management and therefore there is no violation of the right of the minority institution.

27. It is his further contention that since the respondent has not taken over the Management of the College permanently, and as a temporary measure they have passed the impugned order, it need not give notice to the petitioner and hence there is no violation of principles of natural justice. The 2nd respondent while invoking the Government order in G.O.Ms.No.1021, there is no question of giving opportunity to the petitioner due to the situation prevailed in the College.

28. On the above background pleadings and the submissions made, I have heard the learned counsel on either side and perused the material documents and the relevant provision of law.

29. The facts of the case would reveal that St. Jude’s College, Thoothur, Kanyakumari District, is an Aided Minority College controlled by the Educational Agency named Latin Catholic Fishermen’s Educational Society, which received 100% grant from the Government. It is seen that a General Body Meeting of the Educational Society held on 30.07.2009, has elected Fr.Francis M.Vincent as the Secretary of the College and the same has been approved by the 2nd respondent in his proceedings M.M.No.32088/F2/2009 dated 11.12.2009. However, by the resolution dated 17.03.2010, the Educational Society has resolved to remove Fr.Francis M.Vincent from the post of Secretary of the College and simultaneously elected Fr.Xavier Alexander, Secretary of the Educational Society, as the new Secretary of the College. A proposal for approval of the Secretaryship has been sent to the 2nd respondent. In the meanwhile, Fr.Francis M.Vincent has filed W.P.No.4191 of 2010 before the Madurai Bench of this Court praying for an interim injunction restraining the respondents from approving Form VI submitted by the 4th respondent (Fr.Xavier Alexander).

30. The said writ petition No.4191 of 2010 filed by Rev.Fr.Francis M.Vincent and the writ petition No.7684 of 2010 filed by Fr.Xavier Alexander were taken up together by the Madurai Bench of this Court and orders passed are extracted by a learned Single Judge in his order dated 30.11.2010 in Paragraph 2 to 6, which are extracted hereunder:-

“2. In the said writ petition, notice was ordered and status-quo was directed to be maintained. Subsequently, when the matter came up on 06.04.2010, the interim order of status quo was directed to be continued and the official respondents were directed to disburse the salary in respect of the teaching and non-teaching staff through the Principal of the College. However, it is seen that the said writ petition was admitted on 30.04,2010, and this Court passed the following order:-

“It is clear that the constitution of the Educational Agency is not a legal requirement in cases of minority institutions. Rule 9(2) of the Tamil Nadu Private Colleges (Regulation) Rules, 1976, is as follows:-

“9(2) The term of office of the Secretary shall, ordinarily, be three years. However, he/she shall be eligible for re-nomination for subsequent terms. If the educational agency intends to change the Secretary within the period of three years, it shall do so only with the prior approval of the Director. Application for approval of change in the Secretaryship shall be made to the Director in Form VI.”

No doubt, the term of office of the Secretary is prescribed as 3 years and he shall be given opportunity, in case, he is sought to be removed. It is admitted that the college in question is a minority college then, certainly there is no question of constitution of college committee as per Section 11 of the Tamil Nadu Private Colleges (Regulation) Act, 1976, and certainly, the protection given to such a person as Secretary under Rule 9(2) of the Tamil Nadu Private Colleges (Regulation) Rules, 1976 is not applicable to the person claiming to be the Secretary of the minority institution.

7. In such view of the matter, I do not see any reason for granting any injunction in favour of the petitioner and the interim order already granted is vacated and the petition is dismissed. However, it is always open to the petitioner to work out his remedy in the manner known to law, since he raised serious allegation of forgery against the fourth respondent, which claim is disputed by the learned counsel for the fourth respondent.”

3. It is also claimed by the petitioner that subsequent to the filing of the Writ Petition, a general body meeting of the Latin Catholic Fishermen’s Educational Society controlling the St. Jude’s College was convened and the fourth respondent was directed to attend the meeting in the Arch Bishop’s House on 12.04.2010. Thereafter, the general body meeting of the Educational Society was convened on 26.04.2010 and in that meeting, certain decisions were taken and resolutions were passed and signed by the members.

Resolution No.6 reads as follows:-

“6. Fr.Xavier Alexander, as per the memo issued is found guilty of charges of tampering of the records, misrepresentation of facts, abusive character, intimidation and causing disturbance to the functioning of the officials. He has worked against the very constitution and interest of the society and violated norms we have followed for the past four years and established through Court of law. Hence as per memo issued and communication already made Fr.Xavier Alexander shall be removed from all the offices of the society and the college and he shall not enter the premises of the college, unless required by law. However his membership in the General Body shall continue though without any portfolio.”

Therefore, it was contended that the fourth respondent has no right to manage the affairs of the College.

4. In the meanwhile, the fourth respondent has filed a Writ Petition in W.P.(MD)No.7684 of 2010 challenging the order dated 11.06.2010 passed by the first respondent, Director of Collegiate Education. The Director of Collegiate Education, by order dated 11.06.2010, found that the petitioner in W.P.(MD)No.4191 of 2010 has filed a Writ Petition and obtained an interim order of status quo and it is also stated that subsequent to the passing of the order on 30.04.2010, the petitioner in W.P.(MD)No.4191 of 2010 had filed a suit in O.S.No.84 of 2010 seeking for a declaration and permanent injunction against the fourth respondent Rev.Fr.Xavier Alexandar. The said suit is pending before the District Munsif Court, Nagercoil and the learned District Munsif, in I.A.No.301 of 2010, by order dated 26.05.2010, granted an order of status quo pending the suit. It was noted that the fourth respondent was removed from his post. Quoting these facts, the first respondent directed to keep the earlier proceedings dated 11.05.2010 in abeyance and directed the continuation of the proceedings dated 11.12.2009 passed by the Director of Collegiate Education, wherein and by which, the appointment of the petitioner as Secretary of St.Jude’s College in W.P.(MD)No.4191 of 2010 was approved. Challenging the said order, the fourth respondent in the said Writ Petition in W.P.(MD)No.4191 of 2010 has filed W.P.(MD)No.7684 of 2010.

5. When the said Writ Petition in W.P.(MD)No.7684 of 2010 came up for hearing on 05.07.2010, the same was directed to be posted along with the previous Writ Petition and in view of the inter-connectivity between the two Writ Petitions, they were heard together and the common order is passed.

6. Subsequent to the filing of the Writ Petitions, the petitioner in W.P.(MD)No.7684 of 2010 filed an additional affidavit. In paragraph No.2 of the additional affidavit, it was stated as follows:-

“2. I respectfully state that I have filed the above writ petition questioning the order dated 11.06.2010 passed by the first respondent in Na.Ka.No.18828/F2/2010. Yesterday, the Revenue Divisional Officer, Nagercoil, convened a peace committee meeting and I was summoned there and coerced into signing a minute. I was made to agree that I shall comply with the impugned order subject to it being revised or cancelled by orders of Courts. In fact the Revenue Divisional Officer merely read out in the open meeting. I was not even allowed to read the contents. I in fact refused to comply with the directive of the R.D.O. But the said revenue authority literally threatened me and made me to
sign the minutes. Since this is a subsequent development, it is my duty to place the same before this Honourable Court.”

31. After hearing the learned counsel for the parties, the said writ petitions were dismissed/disposed of with the following directions and observations:-

“11. But, in the present case, the petitioner in W.P.(MD)No.7684 of 2010, had not challenged his removal of his Secretaryship, but only challenged the order of the Director of Collegiate Education in restoring the right to disburse the salary to the teachers to the Educational Agency and cancellation of direct payment. Further, the very right of the petitioner claimed in W.P.(MD)No.7684 of 2010 itself has become the subject matter of the suit in O.S.No.84 of 2010. In his affidavit, he had also accepted that he had signed the peace committee minutes for the implementation of the order dated 11.06.2010. Though it is stated that it was by the threat held out by Revenue Divisional Officer and he was forced to sign the minutes, the Revenue Divisional Officer has not been made as a party to the Writ Petition. Hence, this Court is not willing to accept the statement of the petitioner in the second Writ Petition.

12. In view of the above discussion, W.P.(MD)No.7684 of 2010 must fail and accordingly, the same stands dismissed. No costs.

13. W.P.(MD)No.4191 of 2010 had become infructuous, in view of the fact that the Director of Collegiate Education, by his order dated 11.06.2010, recognized the right of Educational Agency in disbursing the salaries to the teaching and non-teaching staff of the St.Jude’s College, Thoothoor. Hence, W.P.(MD)No.4191 of 2010 same stands dismissed as infructuous. Consequently, the connected miscellaneous petitions are closed. No costs.

32. From a reading of the above order, it is made clear that the writ petition filed by Fr.Xavier Alexander was dismissed. However, the writ petition filed by the petitioner herein viz., Rev.Fr.Francis M.Vincent in W.P.(MD)No.4191 of 2010 was dismissed for having become infructuous in view of the fact that the Director of Collegiate Education, by his order dated 11.06.2010, recognized the right of Educational Agency in disbursing the salaries to the teaching and non-teaching staff of the St.Jude’s College, Thoothoor.

33. In that view of the matter, it is to be seen that the recognition of the Educational Agency was granted by the second respondent in his order dated 11.06.2010. A perusal of the said order would reveal that in view of the order of this Court made in W.P.(MD)No.4191 of 2010 dated 30.04.2010, the order passed by the 2nd respondent dated 11.05.2010 has been ordered to be kept in abeyance. While doing so, the 2nd respondent has restored back the order passed on 11.12.2009, wherein the petitioner viz., Rev.Fr.Francis M.Vincent has been approved as the Secretary of the College as per sub rule 2 of Rule 9 of the Tamil Nadu Private Colleges (Regulation) Rules, 1976.

33. From the conjoint reading of the orders of the 2nd respondent dated 11.12.2009, 11.05.2010 and 11.06.2010, it is clear that the Secretaryship of the petitioner college has been continued because of the very specific observation of this Court in paragraph 13 of the order dated 30.11.2010 holding that W.P.(MD)No.4191 of 2010 had become infructuous
in view of the fact that the Director of Collegiate Education, by his order dated 11.06.2010, has recognized the right of Educational Agency in disbursing the salaries to the teaching and non-teaching staff of the St.Jude’s College, Thoothoor. Hence, from the above orders and proceedings, it is seen that the right to do the job of the College is vested with the petitioner.

34. Further, the petitioner has assailed the impugned order on the ground that the respondent has taken a decision taking into account some problems prevailed in the administration of the college. Due to the un-conducive situation prevailed therein, a Peace committee Meeting was conducted wherein it was resolved to run the college smoothly, by adopting a temporary measure, viz., by invoking G.O.Ms.No.1021 dated 2.9.1985. This action of the respondent is to be tested as to whether the decision taken therein is in accordance with law or not.

35. It is seen from the Government order in G.O.Ms.No.1021 dated 02.09.1985 that the Government have examined the question of permitting the Regional Deputy Director of Collegiate Education to attend to certain items of work relating to service matters of teachers of aided colleges, which are incidental to payment of salary of the teachers, whenever there is dispute in the management of aided colleges and they permit the Director of Collegiate Education to authorize the Regional Deputy Director of Collegiate Education concerned to attend the following items of work of aided colleges concerned in the absence of the Secretary of the college due to disputes in managements/where there is dispute over the Secretaryship of the aided colleges, particularly

(i) to draw and disburse the salary of the staff of aided colleges when there is dispute in the management

(ii) to sanction leave and increment to the employees

(iii) to sign papers relating to provident Fund (Admission, Advance and Closure)

(iv) to sign pension papers relating to reemplyment upto the end of the academic year/concerned

(v) to sign the papers relating to fixation of pay and selection grade

(vi) to sign the papers relating to the loans and advances admissible as per rules (including disbursement)T.P.F. Advance other loans and advances if any admissible as per rules

(vii) to relieve the employees consequent on the resignation and retirement as per rules

(viii) to relieve the employees who go on leave/deputed to higher studies etc.,

(ix) to sign papers relating to the deputation of teachers under F.I.P. of University Grants Commissions Scheme and to correspondent with the UGC in connection with the salary of the substitutes appointed against the vacancies caused due to the deputation of the teachers to the higher studies under the above said scheme

(x) to make entries in the Service Books

(xi) to correspond with the university to get the approval of the appointment of the teachers appointed by the legal Secretary of the college for the approval of the appointment by the department provided their appointments have been approved by the University concerned.

(xii) to assess grant in respect of the teachers appointed by the legal Secretary before the dispute without awaiting the formal proposal from the Secretary of the college for the approval of the appointment by the department provided their appointment have been approved by the University concerned.

(xiii) to appoint substitutes in the approved vacant posts (i.e. new posts, leave vacancy, retirement and resignation vacancy etc.) purely on temporary basis. The continuance of such employees may be decided by the management after the dispute is settled and the direct payment system is revoked.

(xiv) to send proposals to Director of Collegiate Education for upgradation of teachers as per rules”.

36. A reading of the above Government order would make it clear that in the absence of Secretary of the College due to disputes in the Management, the Government would direct the Director of Collegiate Education viz., the 2nd respondent to invoke G.O.Ms.No.1021. In the instant case, the 2nd respondent by his proceedings dated 11.06.2010, has restored back the approval of the Secretaryship of the petitioner dated 11.12.2009. It gives a clear picture that there is no dispute over the educational agency and the management of the institution in question to invoke G.O.Ms.No.1021, dated 29.01.19085. Therefore, the respondents have misconceived the entire position and come to the conclusion that there is no secretaryship of the College and invoked the Government order in G.O.Ms.No.1021 and passed the impugned order. It appears that there is no such situation prevailed to the 2nd respondent to invoke such a power. The Government order is clear about the position that in the absence of secretaryship of the college due to the disputes in the Management, and when there is dispute over the secretaryship of the aided colleges, the 2nd respondent can invoke, otherwise it should not. In the given situation, it is not proper for the 2nd respondent to invoke the Government order holding that there is no secretaryship of the college.

37. The other contention raised by the learned Senior Counsel is that the respondent while going for such a decision, no opportunity of hearing was given to the petitioner, which would amount to violation of principles of natural justice. It is an admitted fact from the pleadings of the respondent in paragraph 14 of the counter that since the respondent has not taken over the Management of the College permanently, and it is only a temporary measure, there is no need to give notice and hence there is no violation of principles of natural justice. Further, in paragraph 15, it is reiterated that there is no contrary to the constitution and the Director of Collegiate Education after taking into consideration the worst situation prevailed in the college has invoked G.O.Ms.No.1021 and when that being so, question of giving an opportunity to the petitioner does not arise.

38. It is seen from the above statement that the respondent was not inclined to give any audience to the petitioner and therefore it is clear violation of the principles of natural justice and there is denial of opportunity of hearing before passing the impugned order and coming to such a conclusion. It is pertinent to point out that there is no worst situation. On that ground also, the order of the 2nd respondent is illegal, infirmed and therefore cannot be sustained.

38. For all the above reasons, and upon considering the entire facts and circumstances of the case, this Court is of the view that the impugned order passed by the respondent is not only against the order of this Court but also in violation of the principles of natural justice. Therefore, the order passed by the 2nd respondent cannot be legally sustained and hence it is quashed. The 2nd respondent is directed to restore back the position as per the orders of this Court dated 30.11.2010.

39. The writ petition is allowed with the above direction. No costs. However, it is made clear that this order shall not have any bearing on the Civil Court proceedings. In other words, the Civil Court is at liberty to decide the issue before it untrammeled by any of the findings or observations made in this order.

27.04.2011
rg

Index : Yes
Internet : Yes

To :

1    THE SECRETARY TO GOVERNMENT                   
     HIGHER EDUCATION  FORT ST.GEORGE  
     SECRETARIATE  CHENNAI 9

2    THE DIRECTOR OF COLLEGIATE
     EDUCATION  COLLEGE ROAD  CHENNAI 6

3    THE JOINT DIRECTOR OF
     COLLEGIATE EDUCATION  
	TIRUNELVELI REGION  
     SAGUNTHALA COMPLEX  
	TIRUNELVELI AND DT




































V.DHANAPALAN,J
rg







W.P. No.18102 of 2010














27.04.2011

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