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Judgment
Sathiadev, J.—Petitioner in W.P. No. 8826 of 1987 is the appellant and the four respondents therein are the respondents herein. The Petitioner filed the writ petition to quash the order of the Second Respondent dated 16-7-1987 and to direct the second respondent to approve the transfer of management of the two schools mentioned in the petition. Petitioner is the Church of South India, Kanyakumari Diocese, which was recognised as minority institution by a Division Bench of this Court in W.P. No. 524 of 1975. There were two schools viz., V.V. High School for Girls and V.V. Higher Secondary School for Boys at Irenipuram Village started by the landlords for the welfare of their tenant's children. Since they were not able to effectively conduct the schools, they sold the two schools under a sale deed dated 13-7-1983 for Rs. 5,00,000. Therefore, Petitioner under S. 8(1)(c) of Tamil Nadu Act 29 of 1974 applied for transfer, to the Joint Director of School Education (Secondary), who is the competent authority under R.7 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 to approve transfer of schools. The application was made on 22-8-1983 in Form No. IV with the required particulars and undertakings. First Respondent refused to grant approval by order dated 24-4-1984 and an appeal was preferred to the first respondent and it was also rejected on 13-8-1984. A revision petition was preferred to the Government, and since it was not disposed of within a reasonable time, W.P. No. 1948 of 1986 came to be filed and the learned Additional Government Pleader opposed the issue of any direction to the Government to dispose of the revision petition, because there is no statutory provision made in the Act for such a revision to be filed. Hence, Petitioner filed W.P. No. 3762 of 1986 and sought for quashing the rejection of the approval prayed for and the writ petition was admitted and interim orders came to be passed. Thereafter, on the matter being remitted by judgment dated 22-8-1986 to the second respondent, who is the competent authority it resulted in W.A. Nos. 252 and 253 of 1987 being filed by teachers and they were dismissed on 5-3-1987. It is thereafter by impugned order, the application for transfer having been rejected; the present writ petition came to be filed. The learned Judge by order dated 7-9-1987 held that there is absolutely no provision in the Act for the Petitioner to purchase the schools and it is not made out that it had "established and administered" the schools. Aggrieved against this order, this writ appeal is preferred.
Mr. N. Paul Vasantha Kumar, learned Counsel for the appellant/petitioner, submits that when S. 8 deals with approval of transfer of management of private schools, and under R.7, the Joint Director of School Education having been constituted as the competent authority to pass orders of transfer, and for change of Educational Agency, Form IV having been prescribed, the second respondent has misconstrued the powers conferred upon him. He also relies upon the decision in Rt. Rev. Dr. Aldo Maria Patroni, S.J. and Another Vs. The Assistant Educational Officer and Others, to show that when an existing school is purchased by a minority educational agency, it would be treated as having been established by it within the meaning of Article 30 (1) of the Constitution.
On the point as to whether transfer of an Educational Agency is contemplated under the Act or not, it is extremely disappointing to note that the competent authority in spite of being fully aware of S. 8(1)(c) read with Rule 7 and Form IV, has held that there is no provision in the Act and the Rules to sell or purchase the school, and by this process of reasoning, has refused to grant permission relating to the transfer of Educational Agency. Transfer of right, title and interest in a building belonging to an Educational Agency is quite different from transfer of Educational Agency, as contemplated under the Act and the Rules. An Educational Agency may be run in a rented building. Such an Educational Agency may apply for transfer of its management to another Educational Agency. In such an event, the ownership of the building is an irrelevant and extraneous factor. It may be relevant for the purpose of finding out whether the Educational Agency had secured the required accommodation for the conduct of the school, and whether it is assured for a reasonable period or not. The purchase of the building with movables by the Petitioner under the sale deed dated 13-7-1983, is distinct and different from the transfer of Educational Agency applied for. Even the erstwhile Educational Agency could sell the property and continue to run the school by taking it on lease from the purchaser. Therefore, when the Act was not enacted relating to transfer of properties owned by an Educational Agency but was enacted to regulate functioning of the private schools in the State of Tamil Nadu and confine its operation only to the educational activities of schools and hence the transfer applied for had been misconstrued. It was not an application made to approve acquisition of right, title or interest in the movable and immovable properties of the School on 13-7-1983. It was an application made for transfer of the Educational Agency from the erstwhile Management to the present Educational Agency. Therefore the absence of a provision to get permission to sell or purchase the building in which schools are situate, cannot be a factor when an application made under S. 8 for Transfer of Educational Agency is considered.
The present application having been made under S. 8 (1)(c) with the required undertaking, the only concern of the second respondent was to find out whether the requirements of the Act and its enforcement to the extent required are adhered to by the transferor and the transferee to carry out the transfer of educational agency. Apart from the undertaking given in Form No. IV and suitably answering each one of the columns therein; when the Director of School Education, first respondent herein addressed the petitioner to clarify as to whether the Petitioner would adhere to the provisions of the Act in relation to the teachers employed by the erstwhile Educational Agency, they have been suitably replied to by the petitioner on 30-3-1987. On 17-2-1987, the Director had specifically asked whether the Petitioner is agreeable to run the two schools by complying with the provisions of the Act, and whether it is agreeable to run the two schools as mentioned in S. 8(1)(c) regarding the service conditions of the teacher, and whether the petitioner would not transfer teachers in the two schools to any of the schools in the management of the Dioceses to all these queries, the petitioner had positively replied that even though it is a minority Educational Agency, in so far as the two schools are concerned, and in respect of the teachers who are presently employed on the date of transfer; they would continue to be governed by the provisions of the Act, and that they would not be transferred from these two Schools to any of the other Schools in the management of the Diocese , and that all the teachers are no co-operating with the management to be run as proposed. When the first respondent had elicited these clarifications from the petitioner, apart from the undertaking already given in Form No. IV which cannot be doubted, it was unfortunate that the second respondent, a subordinate to the first respondent without referring to the communication of the Director and the undertaking given by the Petitioner, had proceeded to hold that the petitioner is not willing to run the school with reference to the provisions of the Act. On 30-3-1987, a similar communication sent to the Director was also forwarded to the second respondent, and it had been acknowledged by him on the same day, and in proof of it, a postal acknowledgement is produced.
As for the next reason that these two schools have not been established and administered by a minority Educational Agency, it has nowhere been held that unless buildings are put up by a minority Educational Agency, and a School is started by them; they cannot establish and administer a school by acquiring an existing school. There is no provision in the Act that a school could be run by an Educational Agency only in a building owned by it. It could take a building on lease or it could be licenced to run a school. As to what meaning could be given to the words "established and administered" as rightly pointed out in R.R.N. Ramalinga Nadar Vs. V. Narayana Reddiar, , even an existing institution could be taken over by a minority community and that would in law mean that it had been established and administered by it.
The last of the reasons which had prevailed on the second respondent is that, most of the teachers including non-teaching staff are not willing to serve in petitioner Educational Agency. No doubt, learned Counsel for the Petitioner, places before Court certain petitions sent by staff members: but this cannot be a retarding factor to approve a transfer, when their service conditions are protected under the Act and the Rules, and when the applicability of those provisions are not resisted by the Educational Agency, though a minority one. Therefore, when their rights are sufficiently safeguarded under the provisions of the Act and the Rules, the question of obtaining their consent, does not arise at all.
Therefore, for all these reasons, the impugned order having been passed on 16-7-1987 by taking into account irrelevant factors, the order under appeal is set aside and the writ petition is allowed directing the second respondent to grant the transfer as prayed for by passing appropriate orders within two months of the receipt of steno-copy of this judgment. As no Law Officer had chosen to appear and contest any one of these claims, with the available materials placed before Court, this writ appeal is allowed with costs.