BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT DATED : 28/07/2006 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.(MD)No.4816 of 2005, W.P.(MD)No. 11064 of 2005 and W.P.M.P.(MD)Nos.1603, 10902, 5181 of 2005 Y.Balachandra Babu ... Petitioner in WP.(MD)No.4816 of 2005 The Corporate Manager Roman Catholic Schools, "Thedal" 10/8-46 C, Bridge Ward, Near Fire Station, Kuzhithurai, Kanyakumari District - 629 163 ... Petitioner in WP.(MD)No. 11064 of 2005 Vs. 1.The District Educational Officer, Kuzhithurai Educational District at Marthandam, Kanyakumari District. ... 1st Respondent in both the W.Ps. 2.The Corporate Manager, Roman Catholic Schools, "Thedal" 10/8-46 C, Bridge Ward, Near Fire Station, Kuzhithurai, Kanyakumari District - 629 163 ... 2nd Respondent in W.P.(MD)No.4816/2005 3.The Correspondent, St.Antony's High School, Kappukad - 629 162, Kanyakumari District. ... 3rd Respondent in W.P.(MD)No.4816 of 2005 4.The District Educational Officer, Thuckalay Education District, Thuckalay - 625 175, Kanyakumari District. ... 2nd Respondent in W.P.(MD)No.11064/2005 5.Y.Balachandra Babu. ... 3rd Respondent in W.P.(MD)No.11064/2005 (impleaded as per order of Court dated 28.07.2006 in WPMP.1603/2006. PRAYER in W.P.(MD)No.4816 of 2005: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records pertaining to the impugned transfer order of the 2nd respondent in ref.No.EDN/K/CM/FC79/115/2005, dated 31.05.2005 issued to the petitioner, and quash the same and consequently direct the 2nd respondent to re-post the petitioner as School Assistant in the 3rd respondent school namely St.Antony's High School, Kappukadu-629 162. PRAYER in W.P.(MD)No.11064 of 2005: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus, to direct the second respondent District Educational Officer to consider and pass orders on the proposal submitted by the petitioner-management to him dated 21.11.2005 (Seeking approval for the purpose of disbursing grant-in-aid towards the salary for the teacher Y.Balachandra Babu working as B.T.Assistant in St.Lawrence Higher Secondary School, Madathattuvilai) within a reasonable time. !For Petitioners ... Mr.G.R.Swaminathan (In W.P.No.4816 of 2005) ... Mr.Issac Mohanlal (In W.P.No.11064 of 2005) ^For 1st Respondent ... Mrs.Jessi Jeeva Priya, Special Government Pleader (In both W.Ps.) For Respondents (2-3) ... Mr.Issac Mohanlal (In W.P.No.11064 of 2005) :ORDER
W.P.No.4816 of 2005, is filed challenging the transfer order passed by
the second respondent dated 31.05.2005 by which, the petitioner who was a school
assistant working in St.Antony’s High School, Kappukadu, was transferred on
administrative ground to St.Lawrence Higher Secondary School, Madathattuvilai
and consequently, for a direction against the second respondent to repost the
petitioner in the third respondent school, namely, St.Antony’s High School,
Kappukadu, Kanyakumari District.
2. The case of the petitioner is that he has joined in the third
respondent school on 17.08.1979 as a School Assistant and he has served in the
said institution for the past 26 years. It is due to the ill-will developed by
the second respondent towards the petitioner, there was an order of suspension
passed against the petitioner, against which, the petitioner moved before the
Civil Court filing a suit in O.S.No.618 of 2004 on the file of the District
Munsif Court and the same is pending.
3. According to the petitioner, the third respondent is a single unit
school and not forming part of the corporate network. However, the second
respondent has been claiming as a corporate management, even though, it is a
separate unit.
4. It is also the case of the petitioner that the Diocese of Kottar had
earlier filed a writ petition before the Principal Bench of this Court in
W.P.No.3990 of 2003 for a direction against the authorities to recognise the
status of the writ petitioner and to recognise its status along with 57
educational institutions under the same corporate management and this Court has
directed the authorities to consider the representation, and till date, the
authorities have not granted such status to the Diocese of Kottar. When the
third respondent remains a single unit school, the second respondent by the
impugned order dated 31.05.2005 has transferred the petitioner from the third
respondent school and by an order dated 01.06.2005, the petitioner was relieved.
5. The impugned order is challenged on various grounds including that the
third respondent is an aided school from the State Government and though it is a
minority institution it is discharging the public duty and the order of transfer
is against the Tamil Nadu Private School (Regulations) Act and Rules made
thereunder. Since the third respondent school is not coming under the corporate
management category, the impugned order of transfer from the third respondent
school is on the face of it illegal.
6. The petitioner would also state that the transfer is not an incident of
service and when there is no corporate management and the contract does not
provide the same, there cannot be a transfer from one unit to another. That
apart, the petitioner would also state that the order of transfer is punitive in
nature.
7. The second respondent in the writ petition in W.P.No.4816 of 2005 has
approached this Court by way of filing Writ Petition in W.P.No.11064 of 2005
praying for a direction against the second respondent viz., the District
Educational Officer, Kanyakumari District to consider and pass orders on the
proposals submitted by the petitioner dated 21.11.2005 for disbursing grant-in-
aid towards the salary of the teacher Y.Balachandra Babu writ petitioner in
W.P.No.4816 of 2005, working as B.T.Assistant in St.Lawrence Higher Secondary
School, Madathattuvilai. The said writ petition is filed consequent to the
order of transfer dated 31.05.2005 by which the writ petitioner in W.P.No.4816
of 2005 was transferred from the third respondent school which is the subject
matter of dispute in the said writ petition in W.P.No.4816 of 2005.
8. The second and third respondents in W.P.NO.4816 of 2005 who are the
writ petitioners in the other writ petition in W.P.No.11604 of 2005 have filed
the counter affidavit.
9. The case of the second and third respondents is that Roman Catholic
Diocese of Kottar is a registered society and a recognised religious minority
institution, which is functioning as a corporate body. The Diocese owned and
administered 59 educational institutions in the revenue District of Kanyakumari,
apart from several orphanages, Homes for the old and the handicapped and other
charitable institutions. The Bishop is the educational agency and General
Manager of all the educational institutions and he is appointed as the Corporate
Manager for the administration of all the schools. The Diocese of Kottar
divided into four vicariates namely Mulagumoodu Vicariate, Thiruthuvapuram
Vicariate, Kottar Vicariate and Colachel Vicariate for administrative
convenience. Later on, Mullagumoodu vicariate and Thiruthuvapuram vicariate
were combined together as a single corporate management. All the 57 educational
institutions which are presently 59 are now in 2 vicariate brought under the
corporative management and there are separate rules and statutes governing the
corporative management. According to the second and third respondents all the
schools under the control of the corporate management are from the single common
unit. The common seniority list among the teachers of all schools are
maintained apart from non teaching staff. The staff of each school are
transferred from one school to another school under the control of the corporate
management without depriving the seniority and affecting any of the services of
the teachers as well as the non teaching staff, the seniority of teachers are
retained whereever they go. Even for promotion of all the eligible candidates
the same will be considered by taking into account their services rendered in
all the schools under the control of the corporate management as qualifying
service conditions. The Department has also treated the corporate management
for all purposes including deployment of staff from one school to another, the
promotion or transfer effecting orders by the management have been approved by
the Department.
10. The petitioner in W.P.No.4816 of 2005 was working as a B.T.Assistant
in St.Antony’s High School in Kappukadu till May 2005. Considering the overall
educational need of the schools and taking into consideration, the interest of
the institutions, the second respondent has decided to transfer the writ
petitioner in the academic year 2005-2006 to another school viz., St.Lawrence,
Higher Secondary School, Madathattuvilai which is under the same corporate
management. The new school to which the petitioner has been transferred is only
15 kilo metres from the petitioner’s residence. The petitioner was also
relieved pursuant to the said transfer order and is now working in the
transferred school. The transfer is effected for the better management and of
all the schools under the corporate management and absolutely with no
dislocation or harassment. All along, all the schools under the corporate
management of the second respondent have been treated as a single unit.
However, when the District Educational officer has taken different stand in the
affidavit filed in the writ petitioner’s suit in O.S.No.618 of 2004 it was
misconception. In the interlocutory application, the Additional District Munsif,
Kuzhithurai has rejected the said contention in the order dated 28.09.2004. The
appeal in C.M.A.No.40/2004 filed was also dismissed by the Sub Court
Kuzhithurai. The second and third respondents are also denying the allegations
of petitioner’s plea is mala fide.
11. The first respondent / District Educational Officer, in both the writ
petitions has filed counter affidavit.
12. The case of the first respondent is that the third respondent school
as well as the school to which the petitioner has been transferred whereof
functioning as a single unit school and not under the corporate management.
That apart, it is the case of the first respondent that the schools are
functioning as religious minority institutions and the Educational Department
cannot interfere with the administration of its schools.
13. It is also the specific case of the first respondent that the
St.Antony, Higher Secondary School, Kappukadu has not come under the corporate
management of the second respondent and it is treated as a single unit.
However, the Educational Department has nothing to do with the transfer.
14. Mr.G.R.Swaminathan, learned counsel for the petitioner in W.P.No.4816
of 2005 would submit that even a reference to the appointment order given to the
petitioner on 17.08.1979 shows that he was appointed under the management of the
third respondent school and there is absolutely no clause regarding the transfer
to any other schools.
15. The learned counsel by relying upon the Full Bench judgment of this
Court rendered in The Correspondent, Malankara Syrian Catholic School,
Marthandam, Kanyakumari District Vs. J.Rabinson Jacob and others reported in
1998 (3)M.L.J, 595 would submit that the transfer is not an incident of service
especially in the circumstance that the minority corporate management is not
recognised by the authorities and the minority institutions are not affiliated
as one unit and therefore, cannot transfer the teachers in different units
established and administered by it and such power is not inherent power of
transfer. According to the learned counsel, inasmuch as in the appointment
order stated above, there is no provision regarding the petitioner from one
school to another school, the transfer cannot be treated as one of inherent in
nature.
16. According to the learned counsel for the petitioner, the judgment of
the Division Bench of this Court in the Manager R.C.Schools, Salem Social
Services Society, Alagapuram, Salem and another Vs. G.Vincent Paulraj, Salem -7
and another reported in 2003 (4) CTC 65 holding that the policy of the Tamil
Nadu Private Schools(Regulations) Act, 1973 does not prohibit more than one
school being run by the same corporate body, has no application on the facts and
circumstances of the case, for the reason that the order of appointment issued
to the petitioner was by the Manager of St.Antony High School, Kappu Kadu and
not by the second respondent.
17. The learned counsel also relied upon a letter of the Bishop and the
General Manager Diocese of Kottar, dated 22.05.2000, quoting the resolution of
the Kottar, Diocese, stating that even though all the schools were under the
Kottar R.C. Diocese every school has been treated as a single unit and in that
view of the matter, it was decided by the Diocese to apply for recognition of
the Corporate management. Further, the learned counsel would state that based
on the said resolution, the second respondent has moved this Court by filing
W.P.No.3990 of 2003 for a direction against the educational authorities to
recognise the status of the 57 educational institutions to be treated under the
control of the corporate management and this Court in the order dated 17.03.2003
while categorically concluding that the authorities has not yet passed any order
has directed the authorities to pass orders. While it remains a fact that the
authority has not passed any order recognising the corporate status of the
second respondent, in addition to the order of appointment given to the
petitioner, factually the second respondent has not been recognised as a
corporate management and in view of the same, the third respondent should be
treated as single unit. Therefore, the transfer made under the impugned order is
not sustainable. He would also submit that a decision given in interlocutory
application by a civil Court which has been confirmed on appeal in C.M.A.No.40
of 2004 even though the same may be true, that was only in the interlocutory
stage, and not a decision on merit, since the suit in O.S.No.618 of 2004 is
still pending adjudication. Therefore, according to the learned counsel for the
petitioner, inasmuch as the transfer is not an incident of service and even on
factual position also, the second respondent can never be treated as a corporate
management and in view of the same, he would contend that the impugned order of
transfer has no legal basis whatsoever.
18. Per contra, Mr.Issac Mohanlal, learned counsel appearing for the
second and third respondents, who are the petitioners in W.P.No.11064 of 2005
would submit that it is the diocese which is the educational agency and the
second respondent is having a common seniority list of all teachers in all the
constituent schools numbering 59 schools. The transfer which is made for the
purpose of better administration of all the schools and not as a punishment. On
the other hand, the transfer has been effected for the purpose of utilising the
services of the expertise teaching of the petitioner. It is also his contention
that even for the purpose redeployment, the second respondent has been treated
as a corporate management and in these years all the 57 schools have been
controlled by the corporate management namely, the second respondent. By
effecting the impugned transfer on the petitioner, the petitioner’s service
condition is not affected and it does not involve a stigma on the career of the
petitioner.
19. That apart, the petitioner having accepted the transfer and is now
working in the transferred school for the past one year. On the other hand,
another person posted in the third respondent school in the place of the
petitioner and his transfer has been approved. It is also the case of the
learned counsel for the second and third respondents that the petitioner is very
well aware that all the schools were under the control of the common corporate
management and the common seniority has been prescribed in these years and at
no point of time, the petitioner ever raised his objection.
20. The learned counsel would rely upon the rules and regulations for
schools in the corporate management of Roman Catholic Diocese of Kottar to
substantiate the case that ever since the said rule has come into effect namely,
22.05.2000, the corporate management has been in existence. The rule
specifically states that the secretary cum treasurer has power of effecting
transfer of any of the members of staff among the schools constituted under the
corporate management. The petitioner having become the teacher and working
under the second respondent management cannot plead ignorance of the same. The
learned counsel further, would rely upon the communication of the Chief
Educational Officer dated 24.06.2005 by specifically stating the second
respondent as a corporate manager or Roman Catholic Schools, Kuzhithurai. He
would also rely upon another communication of the Chief Educational officer
addressed to the second respondent dated 24.06.2005 under which while
considering the plea of redeployment for the year 2004-2005, the Chief
Educational Officer has specifically stated that the second respondent as
corporate management and stated that there are no surplus teachers. In view of
the said factual position, according to the learned counsel for the second and
third respondents, it cannot be said that the educational authorities have not
recognised the second respondent such corporate management of all the schools
under its control. According to the learned counsel, there is absolutely no
provision under the Tamil Nadu Private Schools (Regulations) Act and Rules for
the purpose of approval of the corporate body from the educational authorities.
He would also rely upon the judgment of this Court rendered in The Management of
Papanasam Labour Welfare Association Higher Secondary school Vikramasingapuram –
627 425 rep by its Secretary Vs. The Chief Educational Officer, Tirunelveli-9
and 6 others reported in 1998 (III) CTC 753. In that case, while referring about
the earlier judgment of this Court rendered in The Management of Hindu and
Saraswathy Middle Schools etc. Vs. Government of Tamil Nadu in W.P.No.9649 of
1982 by order dated 05.10.1990 holding that in respect of the schools under the
corporate management two separate school committees are not necessary, this
Court has specifically stated that “The law does not say that the petitioner
must get approval as corporate body”.
21. Therefore, according to the learned counsel for the second and third
respondents, there is no prohibition of constitution of the corporate body under
the Act and therefore, it should be deemed to be a permission granted to have
such corporate management. The learned counsel would further state that the
Full Bench of this Court rendered in The Correspondent, Malankara Syrian
Catholic School, Marthandam, Kanyakumari District Vs. J.Rabinson Jacob and
others reported in 1998 (3)M.L.J, 595 even though has taken the view that each
school should be treated as a separate unit, has ultimately decided that the
question whether transfer between one school from among other corporate school
is an incident of service has to be taken in the facts and circumstances of each
and every case and is a question of fact. That was a case wherein 13 schools in
the District of Kanyakumari under the control of M.K. Syrian Catholic Diocese
were recognised individually as a separate entity. The management has
maintained seniority list for each individual school as a unit and there was no
common seniority list for all the schools run by the society. Therefore,
according to the learned counsel for the second and third respondents, it was
based on the facts and circumstances of the said case, that the Full Bench of
this Court has come to the conclusion regarding the corporate management and
transfer among the schools whereas considering the 57 schools under the control
of the second respondent they are treated as one corporate body and there has
been a common seniority list among the teachers of all the schools and by
effecting the transfer, the service conditions of the teachers are not affected
and therefore, according to him, on the facts and circumstances of the present
case, the transfer should be treated as an incident of service.
22. Even by applying the ultimate decision of the Hon’ble Full Bench of
this Court, according to the learned counsel for the petitioner, even though,
the Tamil Nadu Private Schools (Regulations) Act does not contain any word about
the corporate body, an analogy to a similar act in respect of colleges viz.,
Tamil Nadu Private Colleges (Regulations) Act and Rules made thereunder
especially Rule 15(c) which used the term “corporate body” of the management.
Therefore, according to the learned counsel when the two acts which are similar
and in one act namely relates to colleges, the corporate body is used, it should
be made applicable to the private schools also.
23. This is apart from the contention raised by the learned counsel that
while the Private Schools Act does not prohibit having a corporate management
while including a clause in the Rules, it should be deemed to be a permission
granted to have the corporate management. It is in this regard, the learned
counsel placed reliance on another judgment of the Division Bench of this Court
rendered in the Manager R.C.Schools, Salem Social Services Society, Alagapuram,
Salem and another reported in 2003 (4) CTC 65. In that case, the Division Bench
of this Court while dealing with the Diocese of Salem establishing and
administering 43 schools, and considering the right of the corporate management
to transfer the teachers from one school to another under its control in
accordance with the provisions of the Tamil Nadu Recognised Private Schools
(Regulations) Act 1973 has held that the transfer can be resorted to, if it is
an incident of service according to the terms of contract between the management
stating that the management cannot deprive of their benefits of service prior to
the said transfer.
24. The learned counsel would submit that the Division Bench has clearly
held that the Full Bench of this Court reported in 1998 3 M.L.J 595 was made
applicable only on the facts and circumstances of the case wherein there was no
common seniority maintained by the petitioner therein and held that the ratio of
the decision of the Full Bench is that the transfer is not prohibited by the
provisions of the Act that if in a given case it is shown that the transfer is a
condition of the teacher having regard to the terms and conditions of the
contract between the parties, then the same is permissible.
25. According to the learned counsel for the second and third respondents,
considering the fact that the second respondent/management is maintaining the
common and overall seniority list among all the teachers working in the
constituent schools, it should be taken that the transfer which is well within
the knowledge of the petitioner and other teachers, it should be taken that the
transfer is an incident of service in this case.
26. The learned counsel also would rely upon the definition of Educational
Agency under Section 2(3) of the Tamil Nadu Recognised Private Schools
(Regulations) Act which states as follows:
“3.Educational agency in relation to–
a) any minority school, means any perons who, or body or persons which,
has established and is administering or purposes to establish and administer
such minority school; and
b) any other private school, means any person or body of persons
permitted or deemed to be permitted under this Act to establish and maintain
such other private school;”
26. On the other hand, the definition of the term, “educational agency” is
defined under Section 2(4) of the Tamil Nadu Private Colleges (Regulations) Act
1976 states as follows:
“4)”educational agency” in relation to–
a) any minority college, means any person who, or body of persons which,
has established an is administering or proposes to establish and administer such
minority college; and
b) any other private college, means any person or body of persons
permitted or deemed to be permitted under this Act to establish and maintain
such other private college;”
27. However, in Rule 11(4)(ii) of the Private Colleges Rules, 1976 which
states as follows:
“11.Conditions of service, etc., of teachers and other persons in
college:…..
4 (i) Promotions in respect of teaching staff shall be made on grounds of
merit and ability, seniority being considered only where merit and ability are
approximately equal, and in respect of non- teaching staff promotions shall be
made on seniority basis, provided other conditions regarding qualification are
satisfied.
ii) The committee shall fill up the posts by promotion or by direct
recruitment. The committee shall, while making promotion, consider the claims
of all the qualified teachers in that college. if, however, none of the
qualified teachers in the college is found suitable for promotion, the vacancy
shall be filled up by direct recruitment by calling for applications from
qualified persons through the Press or by calling for a list of candidates from
the Employment Exchange by following the rule of reservation ordered by the
Government from time to time for direct recruitment.
Explanation:- For purposes of this rule, if an educational agency has
established and administered more than one college, then, the colleges under the
control of that educational agency shall be treated as one unit”.
28. According to the learned counsel for the second and third respondents
when once in respect of private colleges where an educational agency runs more
than one college and thus controls all the colleges the same shall be treated as
one unit. Whileso, it should be taken that private schools also eligible for the
said benefits which is given to the private colleges and the said benefits
should be extended. In this regard, the learned counsel would submit that the
communication of the educational authorities namely, the Chief Educational
Officer, cited above, has categorically stated the factual position that the
second respondent as a corporative management is running 57 schools.
29. Learned counsel would also vehemently reiterate that inasmuch as it is
admitted fact that the overall seniority maintained in respect of all the
teachers working in all the 57 constituent schools under the control of the
second respondent corporate management and such common seniority is in
existence, the impugned transfer is not punitive in character, the service
condition of the petitioner is not affected and he cannot have any objection
against the same.
30. He would also further reiterate that the said common pool of teachers
belonging to all the 57 schools under the control of the second respondent
corporate management is in existence for many years and in such circumstances,
the terms of employment which should be considered on the factual situation as
decided by the Full Bench judgment stated above and as also subsequently
explained by the Hon’ble Division Bench of this Court stated above, the power of
transfer as exercised in the impugned order should be treated as implied in the
present case. By considering the entire facts and circumstances of the case, it
should be deemed that there is implied condition of transfer which was known to
the petitioner as well as the other teachers.
31. The learned counsel for the second and third respondents submitted by
making reliance Rule 15(4) of the Act which clearly states that “in respect of
Corporate Body running more than one single unit that body shall be treated as
one unit for the purpose of this Rule”. According to the learned counsel, even
though the said Rule may not be applicable to the second and third respondents
institutions which are the minority institutions, the rationale of the Rule
contemplated the acceptance of such corporate management under the Tamil Nadu
Recognised Private Schools (Regulations) Act.
32. Again, Mr.G.R.Swaminathn, learned counsel appearing for the writ
petitioner in W.P.No.4816 of 2005 by way of reply has placed reliance on various
judgments to show that specific approval of the corporate management from the
educational authorities is required. He would also submit that as far as Rule
15 is concerned, when the same is not applicable to the minority institution,
that cannot be taken advantage of by the second and third respondents for the
purpose of acting against the general tenets of the Act as also the judicial
precedents.
33. The learned counsel would submit that even assuming that the
petitioner has made application in 2000, the same can never be treated as if the
same is with full knowledge of the teachers. In any event, according to the
learned counsel for the writ petitioner, if a law has conferred certain benefit
the same cannot be waived. He would also rely upon some other judgments
including 1999 Writ.L.R – 219, and 1991 L.W. 180 to show that every constituent
school is a single unit as per the provisions of the Act.
34. I have heard the rival contentions of the learned counsels on either
side and perused the entire records produced before me.
35. At the outset, it is relevant to point out some of the factual aspects
concerning these cases. The third respondent school in W.P.No.4816 of 2005 as
also the St.Lawrence Higher Secondary School, Madathattuvilai which are stated
to be under the control of the second respondent as their educational agency
along with 57 other schools are all private aided minority schools governed by
the provisions of Tamil Nadu Recognised Private Schools (Regulations) Act and
Rules made thereunder, except those provisions which are not applicable to the
minority institutions. The petitioner in W.P.No.4816 of 2005 has enclosed a
resolution of the Diocese of Kottar dated 16.05.2000 in which, the Diocese of
Kottar has specifically passed the resolution stating that even though, the
second respondent educational agency has been controlling all the schools under
one educational agency, the educational authorities have been treating each
school as individual unit and therefore, it was decided to apply to the
educational authorities for approving the second respondent as a corporate
management. It was based on the said resolution, in fact, a writ petition was
filed before this Court in W.P.No.3990 of 2003 by the second respondent for a
direction against the Government as also the Director of School Education and
the Director of Elementary Education to declare all the 57 educational
institutions under its control as a corporate management. This Court while
disposing of the said writ petition by an order dated 17.03.2003 has directed
the educational authorities to pass orders on the representation of the second
respondent herein dated 22.05.2000 followed by a reminder on 08.11.2002 within
a stipulated time.
36. In a suit filed by the petitioner in O.S.No.618 of 2004 challenging
the order of suspension, the District Educational Officer, Kuzhithurai, who is
the first respondent herein has filed a written statement in November 2004
stating that St.Antony’s High School is a single unit management and not a
corporate body since the same has not been recognised as a corporate body by the
Government or Educational Department. That was the pleading of the first
respondent in the said suit filed by the petitioner against the order of
suspension passed by the management.
37. The question now to be considered is as to whether on fact, the
educational authorities have recognised the second respondent as a corporate
management for the purpose of enabling the second respondent to control all the
59 schools as a common educational agency and to treat all the schools as a
single unit. In this regard, it is relevant to point out a letter of the Chief
Educational Officer in Na.Ka.No.6709/A4/03, dated 14.02.2005. That is the order
passed in respect of fixing the sanctioned strength of teachers in respect of
the schools under the control of the second respondent viz., Diocese of Kottar.
That letter by referring about the proceedings of the Director of School
Education in Na.Ka.No.48937/G3/2000, dated 23.03.2002 states as follows:
“ghh;it 1y; Fwpg;gpl;Ls;s gs;spf;fy;tp ,af;Feh; mth;fsJ brayKiwfspy;
nfhl;lhW kiwkhtl;l Mh;.rp. gs;spfis xU myfhf vLj;Jf;bfhz;L cghpahf gzpahw;Wk;
Mrphpah;fis njitg;gLk; gs;spfSf;F gzpaplj;Jld; khw;wpf;bfhs;s ehfh;nfhtpy;
Kjd;ikf;fy;tp mYtyUf;F Miz tHq;fg;gl;Ls;sJ. mjd; tptuk; fj;njhypf;fg;gs;spfspd;
nkyhsUf;F Mah; ,y;yj;jpw;F ghh;it 2y; Fwpg;gpl;Ls;s ,t;tYtyff;fojk; thapyhft[k;
bjhptpf;fg;gl;Ls;sJ.”
38. Therefore, as per the said letter, the Director of School Education in
his proceeding dated 23.03.2002 has treated all the R.C. schools under the
control of the Kottar Diocese as single unit for the purpose of deciding about
the excess teachers in all the schools for the purpose of redeployment. Even
though, the said letter refuses to approve the appointment of certain teachers,
a reference to the letter, shows that it remains a fact that the educational
authority namely, Director of School Education has recognised the second
respondent as a corporate management.
39. It is the case of the second respondent in W.P.No.4816 of 2005 that
the second respondent is a registered society governed by its rules and
regulations and a corporate educational Board has been constituted. It is also
the case of the second respondent in the said writ petition which is in fact not
in dispute that a common seniority is maintained for the teaching staff as well
as non teaching staff working in the various schools separately for each cadre
and by transferring the teachers as well as non teaching staff from one school
to another under the management of the second respondent and their seniority is
not affected and service benefits are also not taken away.
40. The learned counsel for the second respondent in w.P.No.4816 of 2005
has also produced common seniority list of all the schools under the control of
the second respondent management as on 01.06.2005 and I find that the seniority
of the teachers are not affected and the service conditions are not changed.
41. It is based on the above said facts, it is the contention of the
learned counsel appearing for the second and third respondents that when once
the impugned order of transfer of the petitioner from the third respondent
school to another school under the management as its educational agency was
effected, the same cannot be assailed by the petitioner as if the corporate
management of the second respondent is not recognised. That apart, it is the
case of the second respondent that the service condition of the petitioner is
not affected and the transfer is effected within the district and the
transferred school is near the petitioner’s residence and that pursuant to the
impugned order of transfer, the petitioner was relieved from the third
respondent school on 02.06.2005.
42. The learned counsel also would submit that the petitioner has been
relieved from the third respondent school on 02.06.2005 and the same has been
endorsed by the District Educational Officer, Kuzhithurai on 18.11.2005 and in
fact, the order of the transfer has been communicated by the correspondent to
the District Educational Officer, Thuckalay on 21.11.2005 for the purpose of
approval of the transfer. The said District Educational Officer of his letter
O.Mu.No.12382/A2/2005, dated 25.11.2005 has also called for certain other
particulars and the same have been submitted by the Correspondent to the
District Educational officer, Thuckalay on 28.11.2005. In view of the said
factual position, according to the learned counsel for the second respondent and
considering the earlier recognition of the corporate management of the second
respondent by the Director of School Education, the writ petition is not
maintainable.
43. Even though, Mr.G.R.Swaminathan, learned counsel appearing for the
petitioner in W.P.No.4816 of 2005 would submit that in the appointment order
given to the petitioner on 17.08.1979, it has been signed by the Manager
St.Antony’s High School, Kappukad and such order has not been issued by the
second respondent and therefore, it cannot be said that the petitioner has
accepted the corporate management of the second respondent, I am of the
considered view that the recognition of the second respondent as a corporate
management is in the hands of the educational authorities and inasmuch as the
factual situation stated above, it cannot be said that the educational
authorities have not recognised the second respondent as corporate management.
I am of the considered view that there is certainly a force in the argument of
the learned counsel of the second respondent in W.P.No.4816 of 2005 in this
regard.
44. Therefore, on the facts stated above and especially in the
circumstance that the letter for approval of the transfer of petitioner effected
under the impugned order is under the consideration of the educational
authorities, I have no hesitation to come to the conclusion that the writ
petition in W.P.No.4816 of 2005 at this stage is misconceived.
45. Now, the next question which should be considered is about the writ
petition filed by the second respondent in W.P.No.4816 of 2005 who is the
petitioner in W.P.No.11064 of 2005 seeking for a direction against the second
respondent District Educational officer to consider and pass orders on the
proposal submitted by the petitioner management dated 21.11.2005 seeking
approval for the purpose of disbursing grant-in-aid towards the salary for the
teacher (Y.Balachandra Babu) working as B.T.Assistant in St.Lawrence Higher
Secondary School, Madathattuvilai.
46. As I have narrated above, in fact, the said proposal is in the form of
approval of transfer which is impugned in the first writ petition and the said
proposal is still pending with the second respondent in W.P.No.11064 of 2005.
47. On the facts stated above, it goes without saying that inasmuch as, in
the letter of the Chief Educational Officer, Nagercoil dated 14.02.2005
referring to the proceedings of the Director of School Education dated
23.03.2002 recognising the petitioner in W.P.No.11064 of 2005 as a corporate
body, I am of the considered view that the second respondent cannot take any
other decision contra to that.
48. It is in these circumstances, necessary to consider another aspect as
argued by the learned counsels. Mr.Issac Mohanlal, learned counsel appearing
for the petitioner in W.P.No.11064 of 2005 would state that even assuming that
the factual situation is otherwise, by applying the provisions of the Tamil Nadu
Recognised Private Schools (Regulations) Rules especially, with reference to
Rule 15(4)(ii)(c), in respect of the corporate body running more than one school
all these schools under the said body shall be treated as one unit for the
purpose of the said Rule 15 which speaks about the qualifications, conditions of
services of teachers and other persons.
49. He would also refer to a similar provision under the Tamil Nadu
Colleges(Regulation) Rules especially Rule 11(4)(ii) in which, the explanation
categorically shows that in cases where the Educational Agency establishes and
administers more than one college, all the colleges under the control of that
educational agency shall be treated as one unit. Therefore by making an analogy
between these two acts which are almost similar, the learned counsel would state
that even though the act has not prohibited the formation of such corporate
management, by virtue of the enablement given under the rules framed under the
Act, the writ petitioner in W.P.No.11064 of 2005 has a definite right to be
treated as a corporate unit by treating all the 59 schools under its control.
50. On the other hand, Mr.G.R.Swaminathan, learned counsel appearing for
the petitioner in W.P.No.4816 of 2005 would submit that while statute in the
form of the Act does not provide for a corporate body, a reference made in the
Rule cannot be deemed to be a right on the part of the second respondent viz.,
Diocese of Kottar to assume itself as a corporate management having control over
all 59 schools, unless and until, the said status is approved by the
educational authorities. According to him, when once in a suit filed by the
petitioner in a Civil Court, challenging the order of suspension, the District
Educational Officer has filed the written statement stating that the second
respondent Diocese of Kottar is not recognised as a corporate management, it
should be presumed that such a status has not been conferred on the second
respondent Diocese at all. In that regard, he would rely upon the Division
Bench judgment of this Court rendered in W.A.No.122 of 1997, in Sri Kasi Mutt,
Educational Agency of Sri Kumaragurubara Swamigal Arts College, Srivaikuntam and
Sri Kasivasi SwaminathaSwamigal Arts College, Tirupanandal rep. by its
President, Srilasri Kasivasi Muthukumaraswamy Thambiran Swamigal Vs. The
Commissioner of Collegiate Education, Chennai and others. That was a case
wherein the petitioner has filed a writ petition for a declaration that the
colleges in question are established and administered by minority institutions
under Article 30(1) of the Constitution of India. While deciding the case, the
Hon’ble Division Bench has held that the approval of the competent educational
authority is required to treat an educational agency as a single corporate unit.
Therefore, according to the learned counsel, the second respondent in
W.P.No.4816 of 2005 who is the writ petitioner in W.P.No.11064 of 2005 cannot
presume itself to be a corporate body.
51. According to the learned counsel, Rule 15 of the Tamil Nadu Recognised
Private Schools (Regulations) Rules is not applicable to the minority
institutions and therefore, the second respondent Diocese cannot take advantage
of the same.
52. On the face of the said rival submissions made by the learned counsels
in this regard, it is relevant to extract some of the provisions of the Tamil
Nadu Recognised Private Schools as well as Colleges Act. Before coming into
that, on the analysis of the Tamil Nadu Recognised Private Schools
(Regulations) Act, 1973 as well as the Tamil Nadu Private Colleges (Regulation)
Act 1976, it shows except that they are applicable to the aided schools and
aided colleges respectively, all other provisions are the in pari materia the
same.
53. Now, for a reference to Rule 15(4) of the Tamil Nadu Recognised
Private Schools (Regulations) Rules 1974 it is relevant to extract the same
which runs as follows:
“15.Qualifications, conditions of service of teachers and other
persons:……..
4)(i) Promotion shall be made on grounds of merit and ability, seniority
being considered only when merit and ability are approximately equal.
(ii) Appointments to the various categories of teachers shall be made by
the following methods:-
i)Promotion from among the qualified teachers in that school.
ii) If no qualified and suitable candidate is available by method (i)
above-
a) Appointment of other persons employed in that school, provided
they are fully qualified to hold the post of teachers;
b) Appointment of teachers from any other school;
c) Direct recruitment.
In the case of appointment from any other school or by direct recruitment,
the school committee shall obtain the prior permission of the District
Educational Officer in respect of Pre-primary, Primary and Middle School and
that of the Chief Educational officer in respect of High Schools and Higher
Secondary Schools, Teachers’ Training Institutions setting out the reasons for
such appointment. In respect of corporate body running more than one school,
the schools under that body shall be treated as one unit for purpose of this
rule”. (Emphasis is mine)
54. Likewise, the Tamil Nadu Private Colleges (Regulations) Rule 11(4) is
also relevant to be extracted which runs as follows:
“11.Conditions of service, etc., of teachers and other persons in
college:…..
4 (i) Promotions in respect of teaching staff shall be made on grounds of
merit and ability, seniority being considered only where merit and ability are
approximately equal, and in respect of non- teaching staff promotions shall be
made on seniority basis, provided other conditions regarding qualification are
satisfied.
ii) The committee shall fill up the posts by promotion or by direct
recruitment. The committee shall, while making promotion, consider the claims
of all the qualified teachers in that college. if, however, none of the
qualified teachers in the college is found suitable for promotion, the vacancy
shall be filled up by direct recruitment by calling for applications from
qualified persons through the Press or by calling for a list of candidates from
the Employment Exchange by following the rule of reservation ordered by the
Government from time to time for direct recruitment.
Explanation:- For purposes of this rule, if an educational agency has
established and administered more than one college, then, the colleges under the
control of that educational agency shall be treated as one unit”.(Emphasis is
mine)
55. The reading of the said rules show that the educational authorities
running more than one schools or colleges are to be treated as one unit at least
for the purpose of qualifications, conditions of service of teachers and other
persons employed in aided private schools and colleges respectively. When a
question arose regarding the formation of two different school committees in
respect of primary school and higher secondary school under the Tamil Nadu
Private Schools (Regulations) Act, 1973, this Court in the judgment rendered in
The Management of Papanasam Labour Welfare Association Higher Secondary school
Vikramasingapuram – 627 425 represented by its Secretary Vs. The Chief
Educational Officer, Tirunelveli-9 and 6 others reported in 1998 (III) CTC 753
has held that “The law does not say that the petitioner must get approval as
corporate body”.
56. However, while dealing with the provisions of the Tamil Nadu Private
Colleges (Regulations) Act 1976, especially relating to Rule 11(4), a Division
Bench in the judgment rendered in W.A.No.122 of 1997, in Sri Kasi Mutt,
Educational Agency of Sri Kumaragurubara Swamigal Arts College, Srivaikuntam and
Sri Kasivasi SwaminathaSwamigal Arts College, Tirupanandal rep. by its
President, Srilasri Kasivasi Muthukumaraswamy Thambiran Swamigal Vs. The
Commissioner of Collegiate Education, Chennai and others, has held as follows:
“16.We hold that the approval of the first respondent is required to treat
the educational agency as a single corporate unit. We approve the view of the
learned Single Judge that when an educational agency is having two or three
colleges under its corporate control, it has the power to transfer the teachers
or the staff from one college to another, but it must be strictly in accordance
with Rule 11(4) of the Rules relating to the conditions of Service being
maintained by a single corporate unit”.
A reading of the entire judgment shows that it relates to a case where the
Director of Collegiate Education has not gone into the question is as to whether
two institutions are run by a single corporate unit it is on the facts of the
said case, the Hon’ble Division Bench of this Court has held that the approval
of the Commissioner of Collegiate Education would be required but insisting that
the power to transfer has to be strictly in accordance with the Rules under
Section 11(4) relating to the conditions of the services being maintained by a
single corporate unit. In fact, in the said judgment, the decision of the Full
Bench of this Court, rendered in the Correspondent, Malankara Syrian Catholic
School, Marthandam, Kanyakumari District Vs. J.Rabinson Jacob and others
reported in 1998 (3)M.L.J, 595 was considered stating that the Full Bench was
concerned about the institutions in question where it was not established before
the Full Bench that the institutions were run under a single corporate unit.
57. The Hon’ble Full Bench, was dealing with the issue relating to
transfer of teachers of private schools under the Tamil Nadu Recognised Private
Schools (Regulations) Act, 1974, holding that the power of transfer cannot be
included in appointment unless expressly or impliedly provided for, on the
facts and circumstances of the said case. Apart from that, the Full Bench has
held that the right of transfer cannot be inferred. However, the Hon’ble Full
Bench has observed that in a peculiar circumstance where there is no alteration
of condition of service, change of master etc., such transfer may be treated as
an incident of service. The Full Bench has decided the issue on the facts and
circumstances of the said case. In this regard, it is relevant to extract para
26 of the said judgment as follows:
“26.From the resume of the observations made above it can be safely
concluded that transfer is not necessarily included n the conditions of service
as a term of the conditions of service. Transfer is a specie of the appointment
and being one of the modes of appointment, cannot be included in the appointment
itself unless it is expressly or impliedly provided for. Thus the assumption
that the power to transfer is included in the power of appointment is
unsustainable. Power to transfer involving the cessation of appointment would
depend upon the nature of the transaction involved. May be in peculiar facts
where it does not bring about any alterations of the conditions of service,
change of master, change of place, alternation in the terms of appointment,
usage prevalent in the statutory provisions, rules and regulations and
structure, duration of employment and various other circumstances may provide
for a lead that it is an incident of service. The question whether it is an
incident of service has to be determined in the facts and circumstances of each
and every case and is a question of fact”.
Even though, the question whether transfer is an incident of service was left to
be decided on the facts and circumstances, it remains a fact that the Full Bench
has made a categoric observation that in cases where, the condition of service
is not changed, there is no alteration in terms of appointment, transfer can be
treated as an incident of service.
58. It is in this regard, relevant to point out another Division Bench
judgment of this Court in the Manager R.C.Schools, Salem Social Services
Society, Alagapuram, Salem and another reported in 2003 (4) CTC 65. In that
case, the Division Bench has considered exactly, the similar issue which is
before this Court, while deciding about the Rule 15(4)(ii)(c). That was also a
case where various schools under the control of the same educational agency and
the educational agency claimed to be a corporate management transferring the
teachers from one school to another school under the same management. The
Hon’ble Division Bench while referring to the above said judgment of the Full
Bench reported in The Correspondent, Malankara Syrian Catholic School,
Marthandam, Kanyakumari District Vs. J.Rabinson Jacob and others reported in
1998 (3)M.L.J, 595 has specifically stated as follows:
“4.The ratio of the decision of the Full Bench, therefore, is that
transfer is not prohibited by the provisions of the Act; that if in a given case
it is shown that transfer is a condition of service having regard to the terms
of the contract between the parties,then transfer is permissible subject to the
transferee not being deprived of the benefits of his service prior to such
transfer”.
59. The Division Bench while deciding about the above said Rule
15(4)(ii)(c) and also narrating the statutory authority of such Rule making, by
referring to Section 19 and 20 of the Tamil Nadu Private Colleges (Regulations)
Act in categorical terms has held that the Government by virtue of the power
conferred under Section 19 of the Act has framed the Rules and in that Rule
viz., Rule Number 15(4)(ii)(c) which speaks about the corporate body running
more than one school, held that the possibility of several schools being run by
one single legal entity enshrined under the said Rule and by considering the
policy of the Act it does not prohibit more than one school being run by the
same corporate body and also referring to the terms of contract entered under
Form.No.VII(A), which runs as follows:
“6. Section 20 of the Act which is in Chapter V titled “Terms and
conditions of service of teachers and other persons employed in Private Schools”
deals with appointment of teachers and other employees in private schools.
Section 19 empowers the Government to make rules regulating the number,
qualifications and conditions of service of the teachers and other persons
employed in any private school. Rules having been made by the Government in
this regard, qualifications and conditions of service of teachers and others are
dealt with in Rule 15. It requires the school committee of every private school
to enter into an agreement in Form VII(A) or VII(B). Rule 15(4) deals with
promotions. Rule 15(4)(ii)(c) refers to Corporate Body running more than one
school that, in respect of Corporate Body running more than one school, the
schools under that body shall be treated as one unit for the purpose of the
Rule. Thus, the rule made under the statute clearly recognises the possibility
of several schools being run by one single legal entity and promotions being
made from a common pool of teachers serving in all such schools whenever
vacancies arise in any one of those schools run by that legal entity. The
policy of the Act therefore is not to prohibit more than one school being run by
the same corporate body. The fact that statutory agreement does not
specifically refer to transfer would not come in the way of the concerned
parties agreeing to such a condition or agreeing to continue to be bound by such
a condition in a contract entered prior to coming into force of this Act. As to
whether such a condition providing transfer in fact formed part of the contract
is a question of fact”.(emphasis is mine)
60. Further, the Division Bench by going into the various aspects of the
service conditions of the respondent therein and having factually ascertained
that the service conditions has not been altered to his disadvantage while
holding that the transfer is valid has also observed in the following terms:
“9.This transfer does not prejudicially affect him as his seniority is
preserved so also his emoluments. The appellant has placed before the Court the
seniority list of its teaching staff in all the schools. It is a common
seniority list which sets out the name of the teachers and their present place
of working. The list is arranged chronologically with a person who joined
earlier being placed above one who joined later.” (emphasis is mine)
61. That apart, it is relevant to point out that the Apex Court time and
again has held that the transfer is an incident of service and unless, mala fide
is proved or statutory violations are found out such transfer cannot be
interfered with as it was decided in the National Hydro Electric Power
Corporation Vs.Shri Bhagwan and another reported in 2001(8) SCC 574.
62. In the present case, it is not even the case of the petitioner in
W.P.No.4816 of 2005 that the transfer is effected by punitive method, as it is
on fact clear that by effecting the impugned transfer, the petitioner’s service
conditions are not affected, his seniority is not disturbed and his monetary
benefits are deprived and therefore, it can never be said as punitive in
character.
63. A reference to the judgment of the Apex Court rendered in State of
Uttar Pradesh Vs. Siya Ram and another reported in 2004 (7) SCC 405 is relevant
which in unequivocal terms has laid down the law as follows:
“Unless an order of transfer is shown to be an outcome of mala fide
exercise or stated to be in violation of statutory provisions prohibiting any
such transfer, the courts or the tribunals normally cannot interfere with such
orders as a matter of routine, as though they were appellate authorities
substituting their own decision for that of the employer/management, as against
such orders passed in the interest of administrative exigencies of the service
concerned. This position was highlighted by this Court in National
Hydroelectric Power Corpn. Ltd., Vs.Shri Bhagwan”.
64. One other judgment of the Hon’ble Supreme Court which is relevant to
be quoted in this regard to show that the transfer is an incident of service
unless expressly barred as it was held in State of Rajasthan Vs. Anand Prakash
Solanki reported in 2003 (7) SCC 403. While dealing with Section 10 of the
Consumer Protection Act 1986, the Hon’ble Apex Court by making reference to a
case rendered in Indra Sawhney Vs. Union of India, 1992 Supp (3) 217 has held
at page 407 as follows:
“The concept of appointment by transfer is not unknown to service
jurisprudence. A power to appoint includes a power to revoke an appointment,
and so also a power to make an appointment includes a power to make an
appointment by transfer, subject to satisfying the requirements of Section 10 of
the Act. The expression “appointment” takes in appointment by direct
recruitment, appointment by promotion and appointment by transfer”.
65. In view of the facts stated above, that the educational authorities
have recognised the second respondent in W.P.No.4816 of 2005 as a corporate
management and further that by effecting the transfer, the petitioner’s service
conditions are not altered to his disadvantage and on the legal parlour, the
possibility of having more than one schools under the control of the same
corporate management is not prohibited under the provisions of the Tamil Nadu
Recognised Private Schools (Regulations)Act and on the other hand, the Rules
framed as per Section 19 of the said Act especially relating to Rule
15(4)(ii)(c) specifically enables and mandates the authorities to treat the
corporate body running more than one school should be treated as one unit for
the purpose of the Rule relating to qualifications, conditions of service of
teachers and other persons employed in the aided private schools, I am of the
considered view that the impugned order of transfer is not against the
provisions of the Tamil Nadu Recognised Private Schools(Regulations) Act and
Rules made thereunder and is not illegal. Consequently, the writ petition in
W.P.No.4816 of 2005 is dismissed.
66. In W.P.No.11064 of 2005, the second respondent is directed to pass
orders on the proposal submitted by the petitioner therein dated 21.11.2005 in
respect of the grant regarding (Y.Balachandra Babu) working as B.T. Assistant in
St.Lawrence Higher Secondary School, Madathattuvilai and pass orders based on
the above decision of this Court within a period of four weeks from the date of
receipt of a copy of this order. This writ petition is ordered accordingly. No
costs. Consequently, connected W.P.M.Ps. are closed.
sms
To
1.The District Educational Officer,
Kuzhithurai Educational District at
Marthandam,
Kanyakumari District.
2.The Corporate Manager,
Roman Catholic Schools,
“Thedal” 10/8-46 C, Bridge Ward,
Near Fire Station,
Kuzhithurai,
Kanyakumari District – 629 163
3.The Correspondent,
St.Antony’s High School,
Kappukad – 629 162,
Kanyakumari District.
4.The District Educational Officer,
Thuckalay Education District,
Thuckalay – 625 175,
Kanyakumari District.