T CHANDRASEKARAN Vs. COMMITTEE OF MANAGEMENT OF PACHAIYAPPAS

JUDGEMENT

(1.) THE petitioner in W. P. No. 5859 of 1987 is the appellant in this writ appeal. The respondents in the writ petition are the respondents herein. It will be convenient for us if we refer to the parties, as per the nomenclature assigned to them in the writ petition. The first-respondent is a trust governed by a scheme framed by the original side of this Court. The management of the first-respondent has been taken over by the second-respondent under the Pachaiyappa's Trust (Taking over of Management) Act II of 1981. On 25th June 1971, the petitioner was appointed by the first-respondent as a B. T. Science Assistant in the Pachaiyappa's High School, Chidambaram, hereinafter referred referred to as 'the School at Chidambaram'. It must be immediately pointed out that there was no term in the order of appointment that the petitioner is liable to be transferred to any other school under the management of the first-respondent. On 1st December 1974, the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (Tamil Nadu Act 29 of 1974), hereinafter referred to as 'the Act', came into force. The first-respondent is running more than one school. All the schools, including the school at Chidambaram, run by the first-respondent, being private schools, are governed by the Act. The First-respondent does not and cannot claim itself to be a minority institution. The provisions of the Act and the Rules framed thereunder apply to the schools under the management of the first-respondent with full vigour and rigour. After the Act came into force, the petitioner and the school committee of the school at Chidambaram, on 15th July 1978, entered into the agreement as per the form VII-A set out in the rules framed under the Act. Even in this agreement-assuming it is tenable to do so-there is no term adumbrated enabling either the first respondent or the school committee of the school at Chidambaram to transfer the petitioner to any of the schools under the management of the first-respondent. However, on 27th June 1981, the second-respondent brought in G. O. Ms. No. 1228, Education Department, the body of which runs as follows :

(2.) THE Government also ratify the action of the management in having transferred Tmt. K. Thillaikkarasi, Tamil Pandit, from Pachaiyappa's Higher Secondary School, Kanchipuram to Pachaiyappa's Higher Secondary School, Chidambaram on 21st December 1979 prior to receipt of Government Orders, treating all schools run by the management as a corporate body for the purpose of transfer and permit the management to include a transfer clause in the Agreement. " On 30th May 1987, the first-respondent transferred the petitioner from the school at Chidambaram to Pachaiyappa's College Higher Secondary School at Madras, hereinafter referred to as 'the school at Madras'. The petitioner, aggrieved by the order of the transfer, approached this Court by way of the writ petition, challenging the order of transfer. The learned single Judge, who heard the writ petition, did not countenance the grievances of the petitioner and opined that the order of transfer of the petitioner from the school at Chidambaram to the school at Madras was made on administrative grounds and further similar order of transfer has been upheld by another learned single Judge of this Court in G. Mohanavelu v. state of Tamil Nadu and others (W. P. Nos. 5873 and 5874 of 1982, Order dated 22nd February 1984), and dismissed the writ petition. This has obliged the petitioner to prefer this writ appeal. 2. On the contentions raised by Mr. N. S. Sivam, learned counsel for the petitioner, and the counter contentions raised by Mr. O. Radhakrishnan, learned counsel appearing for the first-respondent and Mr. P. Samuel, learned Government Advocate appearing for respondents 2 and 3, three question emerge for consideration before us : (1) The first question is as to whether, after the Act, and the Rules framed under the Act and the Forms of agreement of service between private schools and their staff got formulated, with regard to conditions of service in private schools, there could be the power for the management of private schools to transfer its staff, when no such power has been expressed, either in the Act or in the rules or in Forms, (2) The second question, which is ancillary to the first one, is as to whether the theory that transfer is an incidence of service could be brought in, in respect of service in private schools, governed by the Act without any express power reserved therefor in the statutory provisions; (3) The third question is as to whether the Government could, by a bare executive fiat, direct the addition of a condition regarding power of transfer to the statutory forms, governing the contract of service in private schools.

(3.) THE Act governs private schools. The schools concerned are private schools. Even in respect of schools, run by minorities, as per the pronouncement of the Bench of this Court in W. P. nos. 4478 of 1974, etc. , Batch, Order dated 17th December 1975, the provisions relating to prescription of conditions of service, namely, Section 19 of the Act and the corresponding rule, namely, rule 15, framed under the Act are not held to be inapplicable to them. Section 19 of the Act empowers the Government to make rules regulating the number, qualifications and conditions of service of the teachers and other persons employed in private schools. It reads as follows :