Madras High Court
The Csi Thoothukudi-Nazareth Diocese vs The Secretary To Government on 13 September, 2024
Author: M.Dhandapani
Bench: M.Dhandapani
W.P.No.13921 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 13.09.2024
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
W.P.No.13921 of 2024 and
WMP No. 15114, 15116 and 25406 of 2024
1. The CSI Thoothukudi-Nazareth Diocese,
Rep. by its Lay-Secretary, D.Neeger Prince Giftson,
100, Beach Road, Caldwell School Campus,
Thoothukudi 628 001.
2. Rev. V.M.S.Tamil Selvan, Vice Chairman,
CSI Thoothukudi-Nazareth Diocese,
100, Beach Road, Caldwell School Campus,
Thoothukudi 628 001. ... Petitioners
Vs.
1. The Secretary to Government,
Education Department,
Secretariat, Chennai 600 009.
2. The Director of Collegiate Education,
577, Anna Salai, Saidapet,
Chennai, Tamil Nadu 600 015.
(R1 and R2 deleted, as per order dated
25.5.2024 in W.P.No.13921/2024.)
3. Church of South India,
Rep. by its Administrator,
CSI Synod Secretariat, CSI Centre,
No.5, Whites Road, Royapettah, Chennai 600 014.
https://www.mhc.tn.gov.in/judis
4. The Bishop Incharge/Commissary,
W.P.No.13921 of 2024
CSI Thoothukudi- Nazareth Diocese,
100, Beach Road, Caldwell School Campus,
Thoothukudi 628 001.
5. A.Subash
(R5 suo-motu impleaded as per order dated
25.05.2024 in W.P.No.13921/2024) ... Respondents
PRAYER: Writ Petition filed under Article 226 of Constitution of India
seeking for issuance of writ of Certiorarified Mandamus, calling for the
records of the third respondent and quash the communication dated
22.04.2024 and consequential order dated 30.04.2024 passed by the
third respondent and direct the third respondent to permit the office
bearers to hold office and discharge administrative function of the first
petitioner diocese till the completion of their term i.e. 07.08.2025 or
timeframe fixed by this Court.
For Petitioners : Mr.S.R.Raghunathan
for Nr.Vigneshwar Elango
for first respondent
For respondents : Mr. V.Raghavachari, Senior Counsel
for M/s Kingsly Solomon
for fifth respondent
No representation for R3 and R5
https://www.mhc.tn.gov.in/judis ORDER
W.P.No.13921 of 2024
This writ petition has been filed to quash the communication dated
22.04.2024 and consequential order dated 30.04.2024 passed by the
third respondent and direct the third respondent to permit the office
bearers to hold office and discharge administrative function of the first
petitioner diocese till the completion of their term i.e. 07.08.2025 or time
frame fixed by this Court.
2. The case of the petitioners in nutshell is as follows.
The first petitioner is the Secretary; and the second petitioner is
the Vice-chairman of CSI Thoothukudi-Nazareth Diocese. The
petitioners and other office bearers were duly elected by the erstwhile
Bishop of the Diocese, vide election held on 20.10.2021 and it was
annulled by the Moderator of the third respondent, vide order dated
28.10.2021. Assailing the said order dated 28.10.2021, few dissenters
namely A.Subash and another had filed C.S.No.336 of 2021, seeking
declaration that the order dated 28.10.2021 as null and void; along with
O.A.No.710/2021, seeking interim injunction, restraining the newly
elected office bearers from acting as office bearers of the first petitioner
Diocese. The said application was allowed on 25.04.2022, however, it
was challenged in OSA Nos.120, 121, 124 and 125 of 2022. This Court,
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W.P.No.13921 of 2024
vide order dated 08.08.2022 has allowed the said original side appeals
and permitted the elected office bearers of the Diocese to discharge their
duties. Accordingly, the office bearers of the first petitioner Diocese,
assumed their office from 08.08.2022. The above said order dated
08.08.2022 was challenged before the Supreme Court of India in SLP
(Civil) Diary No.36383/2022 and the same was dismissed on
20.03.2023. Therefore, the order passed in the original side appeals
Nos.120,121, 124 and 125 of 2022, dated 08.08.2022 attained finality.
2.1. According to the petitioners, the office bearers were duly
elected on 20.10.2021, however, they assumed office on 08.08.2022. As
per Chapter VIII Rule 12A of the CSI Constitution, the tenure shall be
three years. As such, on consideration of the date of assumption of
office on 08.08.2022, the tenure of the office bearers shall come to an
end only on 07.08.2025 or at the minimum till October 2024.
2.2. In such circumstances, a communication by e-mail dated
22.04.2024 was received from the administrators of the third respondent,
ruling to refrain the office bearers of the first petitioner from taking any
administrative action and indicating that any actions taken by the office
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W.P.No.13921 of 2024
bearers of the first petitioner, after 18.04.2024, may be deemed null an
void and it was reiterated by the Administrators of the third respondent,
in the meeting held on 3004.2024 at CSI Synod. Aggrieved by the said
communication dated 22.04.2024 and consequential order dated
30.04.2024, the petitioners are before this Court.
3. A bare perusal of the pleadings in the affidavit shows that the
dispute between the parties is with regard to the tenure of the present
office bearers and consequential election to be conducted for electing the
office bearers of the petitioner Diocese. The duties discharged by the
office bearers in the Diocese will not come under domain of 'pubic
function' and the disputes among the parties is a private one.
4. At this juncture, it is worthwhile to rely upon the decision of the
Full Bench of this Court in D.Bright Joseph Vs. Church of South India
(CSI) & Ors. (W.P.No.30472 of2022, dated 29.02.2022 and the relevant
portion is extracted hereunder.
22. In the judgment of the Hon'ble Supreme Court in
the case of St.Mary's Education Society and Another
Vs. Rajendra Prasad Bhargava and others reported in
https://www.mhc.tn.gov.in/judis 2023 (4) SCC 498, the question was whether a writ
W.P.No.13921 of 2024
petition under Article 226 of the Constitution of India
would be maintainable against a private unaided
minority institution. The learned Judges had posed the
following question to themselves.
“Even if a body performing a public duty is
amenable to writ jurisdiction are all its
decisions subject to judicial review or only
these decisions which have a public element
therein can be judicially reviewed under the
writ jurisdiction?
The learned Judges observed that the appellant was a
registered society running an educational institution
founded by a group of French Catholic Nuns in 1893.
The school had absolutely no governmental control
over its administration and functioning. The school
was
affiliated to the Central Board of Secondary Education
(CBSE). After discussing the CBSE's Affiliation Bye
laws, the Bench observed that the CBSE was itself a
society registered under the Societies Registration Act
and schools affiliated to it is not a creature of the
statute and hence not a statutory body. After
discussing the march of law with reference to judicial
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W.P.No.13921 of 2024
observed as follows in paragraph 43.
“43. In the background of the above legal position, it can be
safely concluded that power of judicial review under Article
226 of the Constitution of India can be exercised by the
High Court even if the body against which an action is
sought is not State or an authority or an instrumentality of
the State but there must be a public element in the action
complained of.”
Ultimately, the learned Judges has summed up their
analysis as follows:
“75.1. An application under Article 226 of the Constitution
is maintainable against a person or a body discharging
public duties or public functions. The public duty cast may
be either statutory or otherwise and where it is otherwise,
the body or the person must be shown to owe that duty or
obligation to the public involving the public law element.
Similarly, for ascertaining the discharge of public function,
it must be established that the body or the person was
seeking to achieve the same for the collective benefit of the
public or a section of it and the authority to do so must be
accepted by the public.
75.2. Even if it be assumed that an educational institution is
imparting public duty, the act complained of must have a
direct nexus with the discharge of public duty. It is
indisputably a public law action which confers a right upon
the aggrieved to invoke the extraordinary writ jurisdiction
under Article 226 for a prerogative writ. Individual wrongs
or breach of mutual contracts without having any public
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element as its integral part cannot be rectified through a
W.P.No.13921 of 2024
writ petition under Article 226. Wherever Courts have
intervened in their exercise of jurisdiction under Article
226, either the service conditions were regulated by the
statutory provisions or the employer had the status of
“State” within the expansive definition under Article 12 or
it was found that the action complained of has public law
element.
75.3. It must be consequently held that while a body may be
discharging a public function or performing a public duty
and thus its actions becoming amenable to judicial review
by a constitutional court, its employees would not have the
right to invoke the powers of the High Court conferred by
Article 226 in respect of matter relating to service where
they are not governed or controlled by the statutory
provisions. An educational institution may perform myriad
functions touching various facets of public life and in the
societal sphere. While such of those functions as would fall
within the domain of a “public function” or “public duty”
be undisputedly open to challenge and scrutiny under
Article 226 of the Constitution, the actions or decisions
taken solely within the confines of an ordinary contract of
service, having no statutory force or backing, cannot be
recognised as being amenable to challenge under Article
226 of the Constitution. In the absence of the service
conditions being controlled or governed by statutory
provisions, the matter would remain in the realm of an
ordinary contract of service.
75.4. Even if it be perceived that imparting education by
private unaided school is a public duty within the expanded
expression of the term, an employee of a non-teaching staff
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W.P.No.13921 of 2024
or internal management is only an agency created by it. It
is immaterial whether “A” or “B” is employed by school to
discharge that duty. In any case, the terms of employment
of contract between a school and nonteaching staff cannot
and should not be construed to be an inseparable part of
the obligation to impart education. This is particularly in
respect to the disciplinary proceedings that may be initiated
against a particular employee. It is only where the removal
of an employee of non-teaching staff is regulated by some
statutory provisions, its violation by the employer in
contravention of law may be interfered with by the Court.
But such interference will be on the ground of breach of law
and not on the basis of interference in discharge of public
duty.
23. From the conspectus of the above principles and
judgments which describe a public duty, it is amply
evident that the respondent apart from its ecclesiastical
functions, is running and managing various schools,
colleges and hospitals. The respondent is definitely
discharging the public function and if any action taken
by them which is detrimental to the discharge of this
duty, a writ petition would definitely be maintainable.
Unlike, Article 32 of the Constitution of India any
person even if he is not a person aggrieved can invoke
the jurisdiction of this Court under Article 226 of the
Constitution of India. The petitioner is aggrieved by
https://www.mhc.tn.gov.in/judis the fact that respondents 1 and 2, by manipulating the
W.P.No.13921 of 2024
electoral process are nominating persons of
questionable character, especially against whom
criminal proceedings have been directed. Further, an
amendment to increase the age of superannuation has
been put in place to ensure that the persons now in
management can continue for a further period
unopposed. The activities of such persons would
seriously impair the standards of education as also the
institutions. Therefore, taking note of the fact that it is
these persons who constitute the educational agency,
the writ petition is maintainable.
24. To summarize the issue now in reference, it
can be stated that:
(i) the respondents 1 and 2 are running 2300
schools, 150 colleges and 104 hospitals in India.
Therefore, the public duty that they discharge falls
within the contours of Article 21 and 21A of the
Constitution of India.
(ii) The Courts have emphasized that educational
institutions which nurture and develop young minds
should ensure quality education and high standards
of integrity to the persons passing through their
institutes. Therefore, persons administering and
managing these institutions should be above board.
(iii) Since the educational institutions run by
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W.P.No.13921 of 2024
respondents 1 and 2, both aided as well as unaided,
are bound by statutory regulations of varying
degrees, they are amenable to the writ jurisdiction.
Any act of the management who are in
administration of these institutes / hospitals likely to
bring down the standards of both education as well
as medical services can be challenged by any
person invoking the rights under Article 226 and in
that sense, respondents 1 and 2 would fall within the
category of any person or authority as described
under Article 226 of the Constitution of India.
(iv) The educational agency of the institutions run
by the first respondent is the Synod and the
Constitution of the Synod has a direct impact on the
quality and standards of the educational
institutions/hospitals. Therefore, any act impairing
/impacting the process of electing the Synod would
have a direct impact on the quality and standard of
these institutions/ hospitals.
(v) Apart from running educational institutions,
respondents 1 and 2 are also maintaining churches
and discharging functions of the clergy. These
functions are outside the scope of judicial review
under Article 226 of the Constitution of India.
(vi) A person aggrieved by the acts of respondents 1
and 2 relating to the above can definitely move this
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W.P.No.13921 of 2024
Court under Article 226 of the Constitution of India
to ensure the due compliance of this public duty.
25. Therefore, the writ petition against respondents 1
and 2 who has been struck off, is maintainable where
the action of these respondents which has a direct
impact on the educational institutions/hospitals being
run by the respondents.
5. In such circumstances, this Court is of the opinion that the
disputes between the parties can be agitated only before the competent
Civil Court and this Court sitting under Article 226 of the Constitution of
India cannot look into the above issues. Therefore, as per the ratio laid
down in the above decision, this writ petition is not maintainable before
this court and the same is liable to be dismissed.
6. Accordingly, this writ petition is dismissed. There shall be no
order as to costs. Consequent WMP Nos.15114, 15116 and 25406 of
2024 are closed.
13.09.2024
(1/2)
mst
Index : Yes / No
Internet: Yes/No
https://www.mhc.tn.gov.in/judis
W.P.No.13921 of 2024
1. The Administrator, Church of South India,
CSI Synod Secretariat, CSI Centre,
No.5, Whites Road, Royapettah, Chennai 600 014.
2. The Bishop Incharge/Commissary,
CSI Thoothukudi- Nazareth Diocese,
100, Beach Road, Caldwell School Campus,
Thoothukudi 628 001.
https://www.mhc.tn.gov.in/judis
W.P.No.13921 of 2024
M.DHANDAPANI, J.
mst
13.09.2024
(1/2)
https://www.mhc.tn.gov.in/judis
