WA/550/1999 of THE CBK DIST ADIED SEC.&HR. Vs STATE OF TN REP BY COMMR. on 11 December 2003

:JUDGMENT

V.S. SIRPURKAR, J.

This judgment will dispose of all the four writ appeals as thesubject involved in all the four appeals is common. In all these writappeals, a common judgment passed by the learned single Judge of this Court,dismissing the writ petitions, challenging the validity of the amendment madeto Rule 12(3) of the Tamil Nadu Private Schools ( Regulation) Rules 1974(hereinafter called "the Rules") is in challenge. The learned single Judgeupheld the validity of the said amendment.

2. All the petitioners are the Managements of the private schools. An Act came to be passed under the nomenclature "Tamil NaduRecognised Private Schools (Regulation) Act, 1973" (in short "the Act"), forthe regulation of the private schools in the State of Tamil Nadu. Section 56thereunder empowers the Government to make the rules and it is under thisrule-making power that the said amendment came to be passed.

3. Initially, the Government had issued an order, G.O. Ms.

No.1502 (Education) dated 23-9-1988 whereby, for the existing Rule 12(3), thefollowing was substituted:

"(3) The School Committee shall consists of not more than the following numberof members namely:-

(i) Representatives of the Educational Agency, who shall be nominated by such Educational Agency;Provided that the employee of the school shall not be nominated by such Educational Agency 6 -Nos.

(ii) Headmaster of the school (ex-officio) 1- No.

(iii) Teaching staff representatives of teachers shall beselected by election 3-Nos.

(iv) Parent-Teacher Association nominee 1-No.

(v) Non-teaching staff (if available) by election 1-No.

Explanation:- Non-teaching staff shall mean the ministerial staff belonging to Group C and above."

This Government Order came to be passed when the State of Tamil Nadu was underthe Presidential rule.

4. The first objection to the rule, therefore, was that by a Government Order, the rule could not be amended and unless such amendment wasplaced before the Legislature, it could not be a valid rule. However, it hasbeen pointed out that the said rule was in fact kept before the Legislatureand was duly passed and, therefore, that challenge was not pursued by thelearned counsel for the appellants. We, therefore, proceed on the basis thatthe amendment to Rule 12(3), which remained unchanged, was brought by a properamendment and in a proper way. We have to, however, consider the validity ofthe rule and the challenges before the learned single Judge. They werethree-fold.

5. The first challenge was that this amendment is beyond the rule-making power conferred by Sec.56 of the Act to which, we have alreadymade a reference. The second challenge was that this rule is beyond the scopeof Sec.15 of the Act and is also contrary to the same and as such, it cannotbe a valid piece of legislation. Lastly, it was the case of the petitionersthat the amendment is arbitrary, unreasonable and, therefore, not valid.

6. Learned single Judge has dismissed the writ petitions by

Conclusion

his common judgment holding that the amendment is a valid piece of legislationand that it was within the rule-making powers of the State Government and soalso, there is nothing contrary in the said amendment to Sec.15 of the Act andas such, on that account also, no fault could be found against it.

7. Before proceeding to consider the validity of the order of the learned single Judge and in turn, the validity of the said amendment, itmust be clarified that there was a further amendment to the said rule whereby,a part of Rule 12(3) c hanged. The change effected is in clause (iii) whereinstead of the existing clause, the following amendment was brought:"(iii) Senior-most teachers of the school 3 Numbers"Therefore, now, under the amended rule, it would be three seniormost teachersof the school and one senior-most member of the nonteaching staff, ifavailable, would be included in the School Committee.

8. We are not concerned with aforementioned amendments in the present appeals because, mostly the challenge is to the main part of Rule(3)(i) whereby, the number of the representatives of the Educational Agencyhas been restricted to six and the representation has been provided to theParent-Teacher Association by inclusion of their nominee as also to thenon-teaching staff by providing a representation to such non-teachingemployee, who is senior-most person in that category. Explanations have beenadded in respect of the non-teaching staff and also to the aspect of seniorityamongst the teachers. Explanation 2 provides for the purpose of this rule,the seniority shall be determined with reference to the total service rendered by teachers or non-teaching staff, as the case may be, in any recognisedschool or schools. Three provisos have also been added with which, we wouldhave no concern because in the impugned amendment brought in by the saidGovernment Order, these explanations as also the provisos were not there atall.

9. In short, the challenge is:

firstly:to the State Government’s power to introduce and define the SchoolCommittee by providing representation therein to the persons like therepresentatives of the Parents-Teachers Association and the nonteaching staff;secondly:

to the introduction of the representatives of the aforementionedcategories not being within the scope of Sec.15 and, therefore, theamendment being contrary to the provisions of the rule and henceinvalid; andlastly; to the amendment being contrary to the spirit of Article 14.

10. We have already pointed out that the learned single Judge has repelled these challenges and has held the amendment to be within therule-making power under Sec.56 as also being intra vires Sec.15 of the Act.Learned Judge has taken into consideration the specific language of Sec.56 asalso Sec.15, 18 and various other rules while coming to the conclusion thatthe amendment was a valid piece of legislation.

11. Arguments were advanced by M/s. V. Ayyadurai and Paulvasanthakumar, learned counsel appearing on behalf of the appellants/petitioners. Shri V.R. Rajasekaran, learned Special Government Pleader (Education) has relied on the judgment of the learned single Judge and hassupported these amendments on other grounds also.

12. Learned counsel for the appellants argue firstly that this amendment is beyond the rule-making powers of the State Government underSec.56 of the Act. For that purpose, learned counsel took us to the text ofSec.15 and more particularly sub-sections (1) and (2) as the section thenstood. The section is as under:

"15. Constitution of school committee:- (1) Every private school shall have aduly constituted school committee which shall include the headmaster of theprivate school and the senior most teachers employed in the private school asprovided in sub-section (2).(Priviso not relevant as it was not available then and was introduced byamendment only in the year 1995)

(2) The number of representatives of the teachers on such constituted schoolcommittee shall be such as may be prescribed and different number ofrepresentatives may be prescribed for different classes of private schools."Learned counsel argue that on the backdrop of the language of the section andmore particularly because of the language of sub-section (2) read with Sec.56,the legislature could not have introduced two new representatives of the twonew categories to the School Committee. This is more particularly becausesub-section (2) gives the power only to prescribe the number of the representative teachers. The argument goes further and suggests that there isno power to put a limitation to the number of the representatives of theEducational Agency and neither sub-section (1) nor sub-section (2) can bespelt so as to provide the power to the Government to make rules in thatbehalf. It is, therefore, better to see the rule-making power.

13. Sec.56 of the Act reads as under:

"56 Power to make rules.-(1) The Government may make rules to carry out thepurposes of this Act.(2) In particular and without prejudice to the generality of theforegoing power such rules may provide for all or any of the following mattersnamely:

(a) all matters expressly required or allowed by this Act to be prescribed;(b) not relevant

(c) the establishment and maintenance of private schools; (d) the giving of grants to private schools;(e) the grant of permission under section 6; (f) not relevant(g) nor relevant(i) the standards of education and teaching and courses of instruction inprivate school; (j) not relevant; (k) not relevant;

... ... ..."

We have deliberately not quoted the remaining sub-sections and subclauses ofsub-section (2) as they were neither relied upon nor referred to by thelearned counsel for the appellants or even by the learned Government Pleader.In this behalf, it was urged by the learned counsel for the appellants thatthe learned single Judge has not considered the language of Sec.56 in its trueperspective and there is nothing in the language to introduce a limitation tothe number of representatives of the Educational Agency or even to introducethe representatives of the two categories like Parents-Teachers Associationand the non-teaching staff.14. As against this, it is pointed out on behalf of therespondents that the above quoted provisions of Sec.56 would give amplepowers.

15. We would, therefore, test the rival contentions on the basis of the clauses quoted by us above. There can be no dispute, atleastfrom the language of Sec.15(2), as it then stood, that the Government wouldhave a power to prescribe the number of representatives of the teachers on theSchool Committee. Such power expressly exists via subsection 2(a). Thefurther question is as to whether the Government could go ahead and prescribea limitation on the number of the representatives of the Educational Agencyand introduce representatives from two other categories. It will be proper tosee a few definitions for this purpose.

16. The definition of "Educational Agency" is as under:"Educational Agency in relation to- (a) any minority school means any person who, or body of persons which, has established and is administering or proposes to establish and administer suchminority school; and (b) any other private school, means any person or body of persons permitted ordeemed to be permitted under this Act to establish and maintain such otherprivate school;"

The definition of "School Committee" need not detain us because in relation toa private school, it would mean a School Committee constituted under Sec.15 ofthe Act which we have already quoted. It is, therefore, obvious that in orderto test the rules, we would have to read Sec.15 with Sec.56.

17. It was argued by the learned Government Pleader that under Sec.56(2)(a) itself there would be a power to make the rules while theappellants suggest that the language of Sec.15(1) should be read by us asrestricting the same to the inclusion of the Headmaster and the seniormostteachers and no further. When we take into consideration the language ofSec.15, it has to be undoubtedly read along with Sec.2 (8) which suggests thatthe School Committee would mean to be a School Committee constituted underSec.15. Sec.15(1) provides that every private school shall have a dulyconstituted school committee, which shall include the headmaster of theprivate school and the senior most teachers employed in the private school asprovided in sub-section (2). This section nowhere suggests that the schoolcommittee would be restricted only to the headmaster and the senior mostteachers. That simply cannot be the interpretation because that wouldcompletely obliterate the role of educational agency. which has a major roleto play inasmuch even under the unamended rule 12(3), representation wasgranted to Educational agency, empowering it to nominate its' representatives.If we read the section in the manner that the appellants want us to do, therewould be no question of the rule 12(3) providing for the representation of theEducational agency.

18. Both the learned counsel candidly admitted that they had no difficulty about the unamended rule 12. If that is so, then, necessarily apower would have to be read in the Government even to frame the rulesregarding the school committee and providing representations of the variousbodies therein besides the headmaster and the teachers. To constitute aschool committee is a task of the Educational agency itself as would be clearfrom the language of amended as well as unamended rule 12(1). Significantlyenough, Sec.15 does not create such a task on the part of the Educationalagency. That task has been given by the express language of rule 12(1)amended as well as unamended and the rule as it stood then and remainedunchanged even after the amendment was not assailed on account of the lack ofpower of the Government. It is, therefore, obvious that Sec.15 only providesthat in every school committee, there would have to be an inclusion of aheadmaster and the senior most teachers, whose number shall be prescribed.The section cannot be read in a negative way so as to limit the appointmentsto the school committee only from these two categories.

19. The user of the word include suggests that there could be

19. The user of the word include suggests that there could be other members of the school committee also and necessarily the Governmentwould have the power to provide the representations to such other categories besides the aforementioned two categories of headmaster and the teachers.This position is all the more obtained because of the opening words of Sec.15which suggest that every private school shall have a duly constituted schoolcommittee. The words duly constituted school committee are extremelyimportant because there is a power given via rule 12(1) to the educationalagency to constitute the school committee. However, the school committee mustnot only be constituted but should be duly constituted as per the expressprovision of Sec.15. It would, therefore, be the power of the Government toprovide the rules for duly constituting the school committee. While Rule 12(1) envisages this task on the part of Educational agency to constitute aschool committee, subsection (3) provides for duly constitution of thatcommittee. It is for this reason that the power of the Government to framerules as to how the school committee will be duly constituted would have to beread in the language of Sec.15(1). Sec.56(2 )(a) would, therefore, have to beread as empowering the Government to frame the rules suggesting as to how aschool committee would be duly constituted.

20. Section 56(2)(a) specifically empowers the Government to frame the rules on all matters which are expressly required or allowed by theAct. In our opinion, the opening words of Sec.15 spell out a requirement onthe part of the Government to frame the rules suggesting as to how the schoolcommittee would be duly constituted. Once that power is found in the languageof Sec.15 and via Sec.56(2)(a), the challenge of the absence of power on thepart of the Government to frame the rules as to whither away. Sec.56(2)(c)provides that the Government can frame the rules regarding the establishmentand maintenance of the private schools. Via 56(2)(i) it can frame the rulesfor standards of education and teaching and courses of instruction in privateschools. The scheme of the Act and more particularly Sec.18 suggests that thegeneral administration of the school has to be done by the school committee.

21. Sec.18 reads as follows:

"Functions of the school committee and responsibility of educational agencyunder the Act.- (1) Subject to the provisions of this Act and the rules madethereunder, the school committee shall have the following functions, namely:-(a) to carry on the general administration of the private schoolexcluding the properties and funds of the private school; (b) to appoint teachers and other employees of the private school, fix their pay and allowances and define their duties and the conditions of their service; and

(c) to take disciplinary action against teachers and other employees ofthe private school.the private school.

(2) The educational agency shall be bound by anything done by the schoolcommittee in the discharge of the functions of that committee under this Act.(3) For the purposes of this Act, any decision or action taken by the schoolcommittee in respect of any matter over which the school committee hasjurisdiction shall be deemed to be the decision or action taken by theeducational agency."

A very look at subsection (a) would suggest that it is the function of theschool committee to carry on the general administration excluding of coursethe properties and funds of the private school. It is also responsible for

the appointment of the teachers as also to define their duties and conditionsof their service. It has the powers to maintain the discipline amongst theteachers and other employees of the private schools and the decisions taken bythe school committee are expressly made binding as against the Educationalagency. Not only that but any decision or action taken by the schoolcommittee in respect of the above mentioned matters is deemed to be thedecision or action taken by the educational agency. If the Government has thepower under subsection 2(c) to frame the rules regarding the maintenance ofthe private school as also for providing the standards of education andteaching then, by necessary implication, there would have to be read a powerto frame a rule regarding the number of representatives of Educational agencyand inclusion of other agencies like Parents-Teachers Association andnon-teaching staff agency.

22. In this behalf, it was tried to be argued, though haltingly, that the language of Sec.15, when read with Sec.2(3) suggests thephraseology of "means and includes" and therefore the constituents of theschool committee suggested in Sec.15 would be limited to those named in thesection.

23. The argument is clearly wrong. If such an argument were to be accepted then, the representatives of the Educational agency would alsoremain out of the school committee and it would have to be read that theGovernment had no power even to provide that the school committee wouldinclude the representatives of the educational agency because Educationalagency is obviously not referred to in the section anywhere. The first suchreference to the Educational agency only came by way of a proviso, which wasintroduced in the year 1995. However, the Educational agency was recognisedto be the constituent of the school committee under the old rule also whereinthere was no reference to the educational agency in Sec.15.

24. Learned counsel tried to use two rulings of the Supreme

Court, they being STATE OF TAMIL NADU AND ANOTHER v. ADHIYAMAN EDUCATIONALAND RESEARCH INSTITUTE AND OTHERS (1995 -2- LW 498) and KASILINGAM v. PSGCOLLEGE OF TECHNOLOGY AND OTHER LW 521). There can be no question of theinterpretation given by the Supreme Court to the phrase "means and includes"and holding that the user of such term denotes the exhaustive nature of thedefinition. Both the cases have been considered by the learned single Judgeand we are in agreement with the learned single Judge when the learned Judgesays that both the cases would not apply to the present situation. We wouldhasten to point out that the phraseology used is not "means and includes" butonly the word "includes" has been used in Sec.15(1). In that behalf, we wouldchoose to be guided by the decision of the Apex Court in REGIONAL DIRECTOR,EMPLOYEES' STATE INSURANCE CORPORATION v. HIGH LAND COFFEE WORKS (1991 -3-SCC 617) wherein it is held that the user of the word "includes" suggests theenlargement of the meaning of the preceding words and also suggests that theword comes by way of ' extension' and not with 'restriction' and that it isgenerally used in interpretation clauses in order to enlarge the meaning ofthe words or phrases occurring in the body of the statute and the SupremeCourt says:

"and when it is so used, these words or phrases must be construed as comprehending, not only such things as they signify according to their naturalimport but also those things which the interpretation clause declares thatthey shall include."

It is, therefore, clear that the language of Sec.15 does not at all help theappellants and more particularly the user of the word duly constituted wouldclothe the Government with enough power to frame rules suggesting as to howthe school committee would be constituted. Once that power is read, even thefurther power to include the other agencies to be the part of the schoolcommittee would have to be necessarily read. Therefore, the challenge thatthe Government did not have the rule-making power under Sec.56 has to berejected and was rightly rejected by the learned single Judge.

25. The matters, however, do not stop here. The second part of the argument is that originally there was no limitation on the number ofthe representatives of the Educational agency whereas, it was in additionprovided that the headmaster of the school and two or three senior mostteachers (depending upon the strength of the teachers) would constitute theschool committee. According to the learned counsel, this was quite in keepingwith the language of Sec.15. However, by amendment, the number of therepresentatives of the Educational agency has now been restricted to six andsecondly, two new categories have been added as the constituents of the schoolcommittee, viz. (1) a representative of the Parents-Teachers Association and(2) a representative of the non-teaching staff of the school. Learned counselvery earnestly argue that the amendments would clearly be contrary to theexpress language of Sec.15 and, therefore, ultra vires Sec. 15. Thisargument is also obviously wrong.

26. We have already pointed out, as has the learned single

26. We have already pointed out, as has the learned single Judge, that firstly the language of Sec.15(1) and (2) provides an inclusivedefinition of the school committee. It nowhere suggests that the definitionis exhaustive and that the school committee would not include any other personexcept the Headmaster and the teachers. Even at the cost of repetition, wemay say that if such a narrow interpretation is given, even the old unamendedrule, with which the appellants had no quarrel, would be renderedcontradictory to the language of Sec.1 5 and hence ultra vires the sectionbecause the section as it stood then nowhere referred to the representativesof the Educational agency and yet the unamended Rule 12 provided for thatrepresentation.

27. We have already pointed out that the words duly constituted would clothe the Government with enough powers to frame the rulesfor duly constituting the school committee. Once that plenary power is readin the Government, it cannot be countenanced that the Government did not havea power to either restrict the number of representatives of the Educationalagency or to introduce some other categories like the representative of theParents-Teachers Association and the representative of the non-teaching staff.The Government, which is empowered to frame rules for the maintenance of theschools as also regarding the standard of education and teaching in theschools, must be considered to have the power to frame the rules regarding theconstitution of the school committee, which would also include the power torestrict the number of the representatives of the various categories. After all, it is only the school committee, which is responsible for managing theschool and maintaining the same. The maintenance of the school being theprimary function, over which the rules could be framed, a power would have tobe read in the Government to frame the rules restricting the number of therepresentatives of the various categories as also introducing relevantcategories to the school committee. We have already made a reference toSec.18 which suggests the functions of the school committee and theresponsibilities of the Educational agency. In our opinion, once a broadinterpretation is given to Sec.15(1) and (2), merely because the number of therepresentatives of the Educational agency is restricted to six and two newcategories are introduced to the school committee by amendment, it would notmean that the amendment is contrary to the section or in any manner ultravires the section.

28. We have already shown as to why the amendments are not ultra vires the section. We have no hesitation in holding that there isnothing contrary in the amendments to the express language of the sectionwhich, in our opinion, is liable to be interpreted broadly. We are inagreement with the learned single Judge that the impugned amendment is wellwithin the purview of Sec.15 and there is nothing contradictory in thatamendment vis-a-vis the section.

29. Though it was not argued before the learned single Judge,

learned counsel for the appellants raised the argument on the aspect of'unreasonableness' of these amendments and also urged that if the amendmentsare upheld, the otherwise smooth functioning of the management would crumbledown. Learned counsel argue that the constitution of the school committee isso engineered by the amendments that the number of representatives of theEducational agency, which is six, would be equal to the number ofrepresentatives of the other agencies, viz. teachers' representatives 3;Headmaster 1; Parents-Teachers Association representative 1; Non-teachingstaff representative 1, in all six members. The learned counsel argue, thiscould create a situation of a deadlock where the Educational agency wants totake a particular decision while the other representatives are not in favourof such decision. Learned counsel cite the example of the disciplinary matteragainst the teachers, which is the task of the school committee and argue thatthere could be a situation where a teacher not required or opposed to theEducational agency could never be dealt with effectively by the schoolcommittee because of the situation of impasse. Learned counsel points outthat all the decisions in the school committee have to be taken by themajority and, therefore, there could be a situation where the representativesof the educational agency could be effectively stopped by the other members ofthe school committee, their strength being equal to the number of therepresentatives of the Educational agency.

30. The argument is clearly wrong. Sec.17(3) undoubtedly provides that all the decisions shall be taken by a majority. However, thePresident or in his absence, the member presiding, has a second or castingvote where there is an equality of votes. It will be clear from the rules andmore particularly Rule 12(4) that it is the educational agency which cannominate one of the representatives in the school committee as the President.

Therefore, it is obvious that even if the total number of the members of theschool committee is 12, in which only six representatives of the Educationalagency, by the casting vote given under Sec.17(3), the educational agencywould have a upper hand. Therefore, this criticism cannot be made atleast bythe school management that this curtailing of the number of therepresentatives would create an impossible situation and the functions of theschool committee would come to a standstill. We do not see anyunreasonableness in limiting the number of representatives of the Educationalagency atleast on the ground argued by the learned counsel. This is apartfrom the fact that if the number of representatives of the educational agencyis not limited then the educational agency might flood the school committee byits members and in that case, the democratic set up of the school committeewould itself be lost. The educational agency in that case can becomeautocratic so as to silence any teacher or staff by their sheer majority. Inour opinion, the rule limiting the number of the members of the Educationalagency is, therefore, well thought out rule.

31. Further it cannot be forgotten that the educational

31. Further it cannot be forgotten that the educational agency is always bound by anything done by the school committee. UnderSec.18(2) if the Educational agency is permitted to flood the school committeewith its own members, Sec.18(2) itself would become unworkable as the otherrepresentatives would be completely cowed down because of the steamrollermajority of the educational agency's representatives. What is expected isthat the school committee shall work for the betterment and for uplifting thestandards of education. Therefore, we see nothing wrong if there is aprovision for stopping the Educational agency being autocratic. In ouropinion, on this count this provision cannot be said to be unreasonable orarbitrary as is being argued before us.

32. Secondly, the learned counsel argued that it is the educational agency which provides the funds and the other infrastructure andestablishes the school and, therefore, there should not be any representationto the parents or to the non-teaching staff in the school committee becausethat would result in bringing the clouds on the powers of the representativemembers of the Educational agency.

33. We have mentioned this argument only to be rejected because, in our opinion, there is nothing wrong if the parents' representativeor non-teaching staff representative is included in the school committee sothat the parents as also the non-teaching staff would generally have the ideaas to what is going on in the school and as to how the school is being run.They would also be a party to the decisions regarding the scholastic, academicand the other activities of the school for which the school committee alone isresponsible. Parents of the students and for that matters even thenon-teaching staff cannot be viewed as a separate entity from the school.They have a unseverable nexus with the school and its management. In theabsence of the representative of the non-teaching staff, there would be nobodyto air their grievances and they being the part and parcel of the school,would be entitled to be heard for their grievances. Such representation would also be congenial as such staff is responsible for the maintenance of therecords of the school, etc.

34. In short, we do not think that there is anything wrong inproviding the representation to such other categories which we have discussedabove. The learned single Judge has also taken a similar view and we are inagreement with that view. In view of the above discussion, we hold that theappeals have no merits and must be dismissed. The judgment of the learnedsingle Judge is confirmed. Under the circumstances, however, we do not passany orders as to the costs. Connected C.M.P. Nos.5549 and 32136 of 1999 and756 of 2000 are closed.

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