Madras High Court
J.Vimal Edward Dhas vs The State Of Tamil Nadu on 5 March, 2021
W.P.(MD)Nos.15438 and 15448 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.S.RAMESH
W.P.(MD)Nos.15438 and 15448 of 2020
and W.M.P.(MD)Nos.12971, 12972, 907 and 908 of 2021
(Through Video Conference)
J.Vimal Edward Dhas ... Petitioner in W.P.(MD)
No.15438 of 2020
B.Sheeja Banu ... Petitioner in W.P.(MD)
No.15448 of 2020
Vs.
1.The State of Tamil Nadu,
represented by its Secretary,
Department of School Education,
Fort St.George, Chennai – 600 009.
2.The Director of School Education,
College Road, Chennai – 600 006.
3.The Chief Educational Officer,
Kanyakumari District, Nagercoil.
4.The District Educational Officer,
Thiruvattar, Office at Marthandam,
Kanyakumari District.
5.The Correspondent,
Purusothamman Pillai Memorial
Higher Secondary School,
Anducode and Post-629 168,
Kanyakumari District.
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W.P.(MD)Nos.15438 and 15448 of 2020
6.Dr.V.R.Sajikumar
7.C.Subi Kumar ... Respondents in both W.P's
COMMON PRAYER: Petitions filed under Article 226 of the Constitution of
India seeking Writ of Certiorarified Mandamus, to call for the records relating
to the impugned proceedings issued by the fifth respondent herein in
Nos.PPM/C/Ve/272/2020 & PPM/C/Ve/273/2020, respectively dated
09.09.2020 and quash the same and further to direct the respondents herein to
reinstate the petitioners into service as Physical Education Teacher in the fifth
respondent school from 09.09.2020 onwards with salary and other attendant
benefits
In both the W.P's:
For Petitioners : Mr.E.V.N.Siva
For RR 1 to 4 : Mr.C.Shanmugaselvam
Additional Government Pleader
For R5 : Mr.S.C.Herold Singh,
Standing counsel
*****
COMMON ORDER
The petitioners herein, are the Physical Education Teachers under the fifth
respondent School. By a charge memo, dated 07.09.2019, both were levelled
with certain charges and when the same was challenged before this Court in
W.P.(MD)Nos.21810 and 21802 of 2019, this Court had stayed the charge
memo through its order, dated 16.10.2019. Thereafter, the original charge
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W.P.(MD)Nos.15438 and 15448 of 2020
memo came to be withdrawn on 22.10.2019 and on similar set of charges, fresh
charge memo was issued on 24.10.2019. Pursuant to the charge memo, the
petitioners were placed under suspension on 21.12.2019 and an enquiry came to
be conducted. Ultimately, on 09.09.2020, the petitioners were imposed with
the punishment of removal from service, pursuant to the report of the Enquiry
Officer, finding the charges to be proved. The punishment orders are put to
challenge in these Writ Petitions.
2.The predominant ground raised by the learned Counsel for the
petitioner is that the sixth respondent herein is a purchaser of the School and the
minority status was awarded only to the erstwhile management of the School,
namely, the sixth respondent's vendor and since the sixth respondent's
educational agency has not been recognized with the minority status, the
initiation of the departmental action as well as the imposition of the punishment,
without prior approval of the competent authority under Section 22 of the Tamil
Nadu Private School (Regulations) Act, 2018, is deemed to be without authority
and therefore, the punishment itself cannot be sustained.
3.The learned Standing Counsel appearing for the fifth respondent, on the
other hand, would submit that while the erstwhile educational agency was
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W.P.(MD)Nos.15438 and 15448 of 2020
approved with minority status, the same would get transferred in their favour in
view of the sale deed, more so when the minority status was granted to their
vendor by virtue of the decree of a Civil Court in O.S.No.5216 of 1981 and
hence no fresh approval is required for recognising the school with the minority
status. In support of his contention, the learned Counsel placed reliance on an
order of learned Single Judge of this Court in the case of Hindu Middle School
vs the State of Tamil Nadu, Education Department and two others in W.P.No.
5519 of 2005.
4.The learned Additional Government Pleader placed reliance on the
averments made in the counter affidavit and submitted that the petitioner's
vendor was approved by the minority status after they had established their
linguistic minority before the City Civil Court at Chennai in O.S.No.5216 of
1981. However, the minority status would lapse the moment the management of
the school was transferred in favour of the sixth respondent. By relying upon
the Government order in G.O.(Ms)No.375, School Education (X) Department,
dated 12.10.1988 and G.O.Ms.No.216, School Education (X2) Department,
dated 08.11.2008, the leaned Additional Government Pleader submitted that
there is a duty cast on the sixth respondent, who is the subsequent purchaser, to
obtain minority status afresh and till such time, the School itself is deemed to be
a non-minority one.
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W.P.(MD)Nos.15438 and 15448 of 2020
5.I have given careful consideration to the submissions made on behalf of
the respective Counsels.
6. The object of granting minority status to Educational Institutions is for
promoting the interest of the minority concerned and by grant of such status, the
interests of the minority communities should be sub-served. One of the main
requirement for such a purpose is that the Educational Institution should have
been established by the Minority Institution and should be continuously
administered only by the members of that Minority. The guidelines governing
the Authorities for grant of minority status, are on the basis of these two
mandatory requirements.
7. The only ground raised by the learned standing counsel for the fifth
respondent is that since the erstwhile educational agency was approved with a
minority status, pursuant to the judgment and decree of a Civil Court, such a
status would be transferred to the subsequent educational agency, in view of the
terms of the sale deed. This ground raised is not based on intelligible differentia.
The Regulations governing a private school does not provide for such transfer
of the status from one educational agency to another. When the basic
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W.P.(MD)Nos.15438 and 15448 of 2020
requirement to recognise an Educational Institution is that such an Institution
should be established and administered by the members of the Minority
Committee, there is a duty cast on the subsequent educational agency, which
had purchased the Educational Institution with the minority status, to establish
before the Educational Authorities that they are also members of the Minority
Committee and that the Educational Institution is sought to be administered for
promoting and sub-serving the interest of the minority concerned. This position
is more so mandatory since there is no prohibition for a non-minority
Educational Institution to take over an minority educational institution through
a Deed of Conveyance. As such, the stand taken by the fifth respondent/
Educational Agency cannot be sustained and consequently it is required to be
held that so long as the statutory authorities recognize the 'minority status' of the
fifth respondent/ Educational Agency, they are deemed to be a non-minority
one.
8. The learned standing counsel for the fifth respondent made a faint
attempt to place reliance on the decision of this Court in the case of Hindu
Middle School vs State of Tamil Nadu, Educational Department and others
passed in W.P.No.5519 of 2005 and submitted that the Madras High Court had
set aside the order of the educational authorities rejecting the refusal of
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W.P.(MD)Nos.15438 and 15448 of 2020
recognition of the minority status of the Management, which had taken over the
Educational Institution through a Deed of Conveyance. The reliance placed on
the aforesaid judgment is misplaced. As a matter of fact, the aforesaid decision
of the Madras High Court is against the petitioner since the Court was of the
view that the Educational Authorities should consider the claim of the petitioner
therein for recognition of minority status. Since the Educational Authorities had
set aside the rejection order on the ground that the refusal of minority status was
not on a finding that the Institution fails to satisfy the basic requirements for
grant of minority status, but on account of transfer of the Management, the
Court was of the view that the Educational Authority should consider the claim
of the petitioner therein, for recognition of minority status. Hence, the aforesaid
decision in Hindu Middle School's case (cited supra) may not help the
petitioner.
9. In this background, the facts of the present case reveals that the
petitioners herein were subjected to disciplinary enquiry and ultimately
dismissed from their services on 09.09.2020 respectively. While passing an
order of dismissal, no prior permission was obtained from the competent
Authority under the Tamil Nadu Private School Regulations Act. Now, that this
Court has found that the petitioners with the respondents 5 & 6 were not
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W.P.(MD)Nos.15438 and 15448 of 2020
confirmed with the minority status and are deemed to be a non-minority School,
there is a mandatory duty cast upon them to obtain prior approval of the
Competent Authority for the purpose of imposition of punishment of dismissal,
removal or otherwise terminate the services of the petitioners herein. Such a
legal proposition has been well settled in various decisions of the Hon'ble
Supreme Courts as well as this Court in Bharat Seva Shram Sangh v. State of
Gujarat reported in (1998) 4 SCC 51 and the decision of this Court in Swami
Sadananda, Secretary, Disciple of Swamy Chidbhavananda, Vivekananda,
Higher Secondary School, State of Tamil Nadu reported in (2002) 3 CTC 553.
10. It is relevant to point out here that the impugned orders in the present
writ petitions, dismissing the petitioners from their services', without obtaining
the prior approval of the Competent Authority, has also deprived them the right
of an Appeal as provided under Section 23 of the Tamil Nadu Recognized
Private Schools (Regulations) Act,1978. In this factual scenario also, the
impugned orders of dismissal cannot be sustained.
11. In the result, the Writ Petitions are allowed. Consequently, the
impugned orders made in Nos.PPM/C/Ve/272/2020 & PPM/C/Ve/273/2020,
respectively, dated 09.09.2020 dismissing the petitioners, viz., J.Vimal Edward
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W.P.(MD)Nos.15438 and 15448 of 2020
Dhas and B.Sheeja Babu, from their service are quashed. However, if the 6th
respondent is of the view that the disciplinary action is required to be proceeded
against the petitioners herein, it is open to them to do so in accordance with law
and in the light of the observations made, with regard to the procedure for
conduct of a disciplinary action for a non-minority school. However, there shall
be no order as to costs. Consequently, connected miscellaneous petitions are
closed.
05.03.2021
Index : Yes
Internet : Yes
sts
Note: In view of the present lock down owing to COVID-19 pandemic, a web
copy of the order may be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct copy, shall be the
responsibility of the Advocate/litigant concerned.
To:
1.The Secretary,
Department of School Education,
Fort St.George, Chennai – 600 009.
2.The Director of School Education,
College Road, Chennai – 600 006.
3.The Chief Educational Officer,
Kanyakumari District, Nagercoil.
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W.P.(MD)Nos.15438 and 15448 of 2020
M.S.RAMESH, J.
sts
4.The District Educational Officer,
Thiruvattar, Office at Marthandam,
Kanyakumari District.
Common order made in
W.P.(MD)Nos.15438 and 15448 of 2020
Dated:
05.03.2021
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