The Educational Society vs The Madurai University and Others

M.M. Ismail, J.—The petitioner in the writ petition is the Educational Society, Tirunelveli, represented by its Treasurer, N. Subramanian.

The petitioner runs the Madura Diraviyam Tayumanavar Hindu College, Tirunelveli, popularly known as M.D.T Hindu College, Tirunelveli. The

third and the fourth respondents herein were serving in the College. The third respondent completed the age of 58 years on 22nd July, 1972 and

the fourth respondent completed the age of 58 years on 15th January, 1973. G.O. Ms. No. 1699, Education Department, dated 1st October,

1973 is an order of the Government dealing with the making of teaching grant to educational institutions. This G O. dealing with the staff employed

in a college which is eligible for teaching grant, stated: ""Persons above the age of 58, on the teaching staff, will not be given extension of service,

but may be re-employed upto 60 years with the permission of the Director of Collegiate Education"". The petitioner herein, by Orders dated 21st

January, 1974, terminated the services of the third and the fourth respondents with effect from 31st January, 1974 on the ground that they had

already completed the age of 58 years. The third and the fourth respondents herein approached the first respondent, viz., the Madurai University,

in this behalf. The said Madurai University on 24th January, 1974, sent a communication to the petitioner herein. The University referred to G.O.

Ms. No. 1699, Education, dated 1st October, 1973 and pointed out that it was considered that the respondents 3 and 4 herein, along with

another member of the staff were eligible to remain in service till the end of academic year i.e., 1973--74 as per G.O. Ms. No....Education, dated

11th December, 1970."" Thereafter, respondents 3 and 4 were retained in service till the end of the academic year and the petitioner modified its

earlier orders and re-employed respondents 3 and 4 till 31st March, 1974. After this period was over, respondents 3 and 4 again approached the

University and the University passed the impugned order. This communication of the University forwarded the resolution of the Syndicate which

stated:

(i) the Correspondent of the M.D.T. Hindu College, Tirunelveli be informed that condition No. 10 of the ''Conditions of Services of Teachers in

College of the Madurai University'', is binding on both the Management and the teachers concerned;

(ii) the Correspondent be informed that according to the rules of the University, the age of retirement of teachers permanently appointed is 60 and

that the following teachers are eligible to continue in service till they complete the age of 60 ; and

(iii) the Correspondent be informed that the appeals submitted by the following teachers are admitted and that they should be reinstated and

retained in service till they complete the age of 60.

It is to quash this communication of the Registrar of the Madurai University, the present Writ Petition has been filed.

Before dealing with the point in the Writ Petition, it is necessary to refer to Clause 10 of the Conditions of Service and the resolution of the

Syndicate. That clause states that "" a teacher appointed permanently shall ordinarily be entitled to serve till he completes his 60th year and that no

exemption from the age rule will be given to teachers of colleges including the Principals."" It will be seen that the Syndicate, in the impugned

resolution, has relied upon this clause, while it had failed to refer to the order of the Government in G.O. Ms. No. 1699, Education, dated 1st

October, 1973. In view of this Clause 10 of the Conditions of Service and the provisions contained in G.O. Ms. No. 1699, Education, dated 1st

October, 1973. I asked Mr. K. Doraiswami, learned Counsel for the first respondent viz. the Madurai University to state whether the stand of the

University is that, whatever the Government Order may provide, Condition No. 10 should be observed and followed. The learned Counsel, after

taking instructions, represented to me that Condition No. 10 was not intended to be in derogation of the order of the Government and that the said

condition was intended to subserve the order of the Government and therefore, it was not the intention of the University that the said condition

should override the provisions in the Government Order. Once this position is conceded, it clearly follows that the resolution of the Syndicate, as

communicated on 26th March, 1964 cannot be sustained, because this resolution ignores the Government Order referred to above and proceeds

solely on the basis of Condition No. 10 referred to already. The difference between the two is also significant and vital. Under Condition No. 10 a

teacher is entitled to continue in service till he attains the age of sixty, while, according to the Government Order, the relevant portion of which I

have already extracted, he can continue in service only upto the age of 58 years, though he can be re-employed for a further period of two years

with the permission of the Director of Collegiate Education. On this short ground alone, the writ petition has to be allowed and the impugned

resolution of the Syndicate has to be quashed.

However, Mr. Lakshminarayana Reddy, learned Counsel appearing for respondents 3 and 4, raised an objection regarding the maintainability of

the writ petition. I have already pointed out that the petitioner in the writ petition is the Educational Society, Tirunelveli, represented by its

Treasurer, N. Subramanian. The argument of Lakshminarayana Reddy is that under Rule 19-A (b) of the Rules of the Society which has been

registered under the Societies Registration Act, "" the Society may sue and be sued in the name of the President "" and in this case, ''the institution of

the writ petition in the name of the Society represented by its Treasurer is incompetent. In this context, it is relevant to extract paragraph 15 of the

affidavit filed in support of the writ petition which states:

The Correspondent of the College is also the Secretary of the petitioner Society. He has instituted O.S. No. 272 of 1974 before the District

Munsif''s Court, Tirunelveli for a declaration that the order of the first respondent dated 26th March, 1974 is null and void and for a permanent

injunction restraining the defendants from enforcing in any manner the said order. In I.A. No. 564 of 1974 in O.S. No. 272 of 1974, an interim

injunction has been obtained against the Madurai University. However, the Correspondent of the College has instituted the suit without authority.

Besides, it is the petitioner Society, which is the employer and it is the petitioner Society alone which... is competent to institute legal proceedings

arising out of contract of employment between the Management and the teachers. The President of the Society has taken the view that the

termination of the services of respondents 3 and 4 is not in order, but all other members of the Managing Committee have taken a contrary view.

Hence, they have authorised me as Treasurer, to institute these proceedings on behalf of the petitioner Society. The petitioner submits that in so far

as Suit O.S. No. 272 of 1974 has been instituted by the Correspondent of the College without the authority of the petitioner Society and not in the

name of the petitioner Society the Writ Petition is maintainable.

For the purpose of understanding the objection of Mr. Lakshminarayana Reddy, it is necessary to refer to Section 6 of the Societies Registration

Act, 1860. That section is as follows ;

Every Society registered under this Act may sue or be sued in the name of the president, chairman, or principal secretary, or trustees, as shall be

determined by the rules and regulations of the society, and, in default of such determination, in the name of such person as shall be appointed by

the governing body for the occasion:

Provided that it shall be competent for any person having a claim or demand against the society, to sue the president, or chairman, or principal

secretary or the trustees thereof, if on application to the governing body some other officer or person be not nominated to be the defendant.

With reference to the provisions contained in the section as well as the Rules relating to the administration, the question came to be considered by a

Bench of the Allahabad High Court in Agra Province Zamindar Association Vs. Prem Mohan Verma, . In that case, the Rules authorised the

Society to be sued only in the name of the General Secretary. Admittedly the General Secretary had died and nobody in his place had been

elected. Under these circumstances, a revision petition was preferred before the High Court in the name of the Society represented by the

Additional Secretary of the Association. The question that came to be considered was whether that petition was maintainable or not. A bench of

the Allahabad High Court held that the said petition was maintainable and was in accordance with Section 6 of the Societies Registration Act-The

next decision is that of a Bench of the Calcutta High Court in Nabadwip Bhajan Asram Vs. Commissioners of Nabadwip Municipality, . In that

case, the suit was instituted in the name of the society itself. The objection that was taken was that under the provisions of the Societies

Registration Act, the society as such cannot institute a suit. The objection was overruled and the Calcutta High Court, after referring to the decision

of the High Court of Bombay in Satyavart Sidhantalankar Vs. The Arya Samaj, came to the conclusion that Sections 6 and 7 of the Societies

Registration Act, namely the provisions contained therein for institution of suits by or against a registered society are not mandatory and do not

militate against a registered society suing or being sued in its registered name, in this case, as I pointed out, already, the petition is by the Society

and it is represented by the Treasurer as authorised by the governing body of the Society. The reasoning of the Allahabad High Court in the

judgment referred to was that the rules and regulations of the Society did not provide for the contingency of the General Secretary dying and his

office being vacant and that would constitute ""default of determination"", as contemplated by Section 6 of the Act, so as to entitle the governing

body to name the person who should represent the Society. In my opinion, the principle underlying that conclusion will apply to the facts of the

present case also. In this case, in spite of the office of the President not being vacant the President, because of the view he took which was

opposed to the view of all the members of the governing body, disabled himself from taking action in the name of the Society and therefore, within

the principle laid down by the Allahabad High Court, it can be said that there has been ""default of determination "" and consequently, the governing

body was justified in resolving to file the writ petition in the name of the society represented by the Treasurer. One can very well imagine a situation

where the office of the President is vacant either by the death or resignation or otherwise of the incumbent and the vacancy had not been filled up

and an emergency arises necessitating the taking of some action in a court of law, by the Society. It cannot be contended that simply because the

office of the President is vacant and the rules and regulations have not made any provision to meet such a contingency, the Society is totally

disabled from taking any action at all. Under such circumstances, certainly it is open to the governing body, which is in charge of the administration

of the affairs of the Society to take necessary and reasonable steps to safeguard the interests of the society. Consequently, the position will fall, not

only within the ratio of the decision of the Allahabad High Court, but also within the ratio of the decision of the Calcutta High Court referred to

above. After all, the Society, after registration, becomes a corporate entity and that corporate entity can certainly take steps in its own right and for

that purpose, by whom it is represented is a matter that may be competently decided by the governing body. Under these circumstances I overrule

the objection raised by Mr. Lakshminarayan Reddy and hold that the writ petition is maintainable.

For these reasons, the writ petition is allowed and the impugned resolution of the Syndicate, communicated by the Registrar of the first

respondent University to the petitioner by his communication dated 26th March, 1974 is quashed. There will be no order as to costs.

This petition having been set down ""for being"" mentioned this day, the Court made the following Order:

No orders are necessary.