(Prayer: Writ Appeal filed under Clause 15 of the Letters Patent, to set aside the order, dated 06.09.2022 in Writ Petition (MD)No.13396 of 2021 in so far as directing the official respondents to approve the appointment of the Writ Petitioner and continue to pay salary.

Writ Appeal filed under Clause 15 of the Letters Patent, to set aside the order, dated 06.09.2022 in Writ Petition (MD)No.13397 of 2021 in so far as directing the official respondents to approve the appointment of the Writ Petitioner and continue to pay salary.

Writ Appeal filed under Clause 15 of the Letters Patent, to set aside the order, dated 06.09.2022 in Writ Petition (MD)No.13393 of 2021 in so far as directing the official respondents to approve the appointment of the Writ Petitioner and continue to pay salary.

Writ Appeal filed under Clause 15 of the Letters Patent, to set aside the order, dated 06.09.2022 in Writ Petition (MD)No.13394 of 2021 in so far as directing the official respondents to approve the appointment of the Writ Petitioner and continue to pay salary.

Writ Appeal filed under Clause 15 of the Letters Patent, to set aside the order, dated 06.09.2022 in Writ Petition (MD)No.13398 of 2021 in so far as directing the official respondents to approve the appointment of the Writ Petitioner and continue to pay salary.

Writ Appeal filed under Clause 15 of the Letters Patent, to set aside the order, dated 06.09.2022 in Writ Petition (MD)No.13395 of 2021 in so far as directing the official respondents to approve the appointment of the Writ Petitioner and continue to pay salary.

Writ Appeal filed under Clause 15 of the Letters Patent, to set aside the order, dated 06.09.2022 in Writ Petition (MD)No.13393 of 2021.

Writ Appeal filed under Clause 15 of the Letters Patent, to set aside the order, dated 06.09.2022 in Writ Petition (MD)No.13394 of 2021.

Writ Appeal filed under Clause 15 of the Letters Patent, to set aside the order, dated 06.09.2022 in Writ Petition (MD)No.13395 of 2021.

Writ Appeal filed under Clause 15 of the Letters Patent, to set aside the order, dated 06.09.2022 in Writ Petition (MD)No.13396 of 2021.

Writ Appeal filed under Clause 15 of the Letters Patent, to set aside the order, dated 06.09.2022 in Writ Petition (MD)No.13397 of 2021.

Writ Appeal filed under Clause 15 of the Letters Patent, to set aside the order, dated 06.09.2022 in Writ Petition (MD)No.13398 of 2021.)

Common Judgment

C.V. Karthikeyan, J.

1. All these twelve Writ Appeals emanate from a common order passed in six Writ Petitions by a learned Single Judge of this Court, dated 06.09.2022.

2. The Writ Petitions had been filed seeking a Certiorari to call for the records and to quash the proceedings of the Joint Director of School Education (Higher Secondary), Chennai, in Na.Ka.No.94799/W5/E2/2013, dated 07.05.2021, by which, proceedings, it had been held that the approval cannot be granted for the appointment of the Writ Petitioners, since the School, namely, Usilampatti Nadar Saraswathi Higher Secondary School, Usilampatti, was not a religious minority denomination institution. The learned Single Judge had held that the School was not a minority religious denomination institution, but, however, directed grant of approval of the appointment of the Writ Petitioners on the ground of equity.

3. Significantly, the Writ Petitioners have not come before this Court questioning a portion of the same common order, wherein the claim of the Writ Petitioners that the institution, where they were employed was a minority institution, had been rejected. However, the State, who was the first respondent in the Writ Petitions have filed six appeals and very interestingly, the institution, where, the Writ Petitioners secured employment, have also filed Writ Appeals, not raising the issue that the learned Single Judge had wrongly adjudicated that the institution was not a minority institution, but rather questioning the further relief granted by the learned Single Judge granting approval of appointment of the Writ Petitioners on the ground of equity.

4. The appellants in W.A.(MD)Nos.1346, 1509 and 1510 of 2022 and W.A.(MD)Nos.11 to 13 of 2023, namely, Usilampatti Khatriya Kula Hindu Nattathi Nadarkal Uravinmuraikku Pathiyamana Nadar Saraswathy Higher Secondary School and Primary School Paribalana Sabai, Usilampatti, had earlier filed O.S.No.1682 of 1981 before the District Munsif Court, Tirumangalam under the name and style of “Usilampatti Nattathi Nadar Uravinmurai Nadar Saraswathi Higher Secondary School and Primary School Paribalana Sabai”, seeking a declaration under Article 26 of the Constitution of India that Usilampatti Hindu Nadars are a religious denomination and consequently, to recognize the School as a minority institution.

5. The said suit was partly decreed by a judgment, dated 26.04.1986. However, the first issue which had been framed for consideration was whether the said institution could be declared under Article 26 of Constitution of India as a religious denomination, was answered in favour of the plaintiffs in just one paragraph, wherein, the learned District Munsif, had held that the fact that Usilampatti Nadars formed a religious denomination was held proved only because the defendants therein, namely, the State, had not adduced any oral or documentary evidence. The learned District Munsif, had, unfortunately not examined whether the plaintiffs had proved their case by adducing appropriate and necessary oral and documentary evidences.

6. It is trite in law to point out that even if the defendants remain ex parte, the plaintiffs will have to prove their case by credible oral and documentary evidence and an obligation is vested on the Court to examine whether the plaintiffs have so proved their claim to be entitled for the relief they seek.

7. In this connection, the Hon'ble Supreme Court in the case of 1993 Supp (2) SCC 560 in the case of Sri Chand -vs.- Inder and others, held as follows:

                     “ 10...... The plaintiff/appellant must succeed or fail on his own case and cannot take advantage of weakness in the defendant/respondent's case to get a decree.”

8. Further, the Hon'ble Supreme Court in (1998) 4 SCC 539 in the case of Punjab Urban Planning and Development Authority vs Shiv Saraswati Iron and Steel Re-Rolling Mills, had held as follows:

                     “4....... the weakness of the defendants' case, cannot strengthen the case of the plaintiff who must succeed by establishing his own case........”

9. The Hon'ble Supreme Court in (2012) 5 SCC 265 in the case of C.N.Ramappa Gowda -vs.-C.C.Chandregowda (Dead) by Lrs and others, had held as follows:

                     “26.It is only when the court for recorded reasons is fully satisfied that there is no fact which needs to be proved at the instance of the plaintiff in view of the deemed admission by the defendant, the court can conveniently pass a judgment and decree against the defendant who has not filed the written statement. But, if the plaint itself indicates that there are disputed questions of fact involved in the case arising from the plaint itself giving rise to two versions, it would not be safe for the court to record an ex parte judgment without directing the plaintiff to prove the facts so as to settle the factual controversy. In that event, the ex parte judgment although may appear to have decided the suit expeditiously, it ultimately gives rise to several layers of appeal after appeal which ultimately compounds the delay in finally disposing of the suit giving rise to multiplicity of proceedings which hardly promotes the cause of speedy trial.”

10. The dictum laid down is clear and succinct, namely, that a plaintiff must prove his case irrespective of the stand taken by the defendant. In the instant case, proof by default, though upheld by the trial Court and by successive Courts of hierarchy, can never be stated as sufficient proof warranting a decree to be issued, since the initial finding was bereft of sound legal reasoning and in fact of questionable legal reasoning.

11. The learned District Munsif had dismissed the suit insofar as the relief of permanent injunction sought. This rejection of grant of permanent injunction was taken up in appeal in A.S.No.120 of 1985 before the Principal Subordinate Court, Madurai by the plaintiffs and by judgment, dated 20.09.1985, the appeal was allowed and O.S.No.1682 of 1981, was decreed in entirety.

12. Challenging this judgment, the defendants/State filed S.A.No.883 of 1987 before this Court. A learned Single Judge of this Court had framed two substantial questions of law. The second question was whether the institution was a denominational institution. The learned Single Judge held that this particular finding of the learned District Munsif had not been challenged by the appellants/State by filing a first appeal and therefore, held that the decision of the learned District Munsif on this issue had attained finality. The other issue of limitation alone was taken up and the appeal was dismissed.

13. In effect, the claim of the plaintiffs to be considered as a religious denominational institution was upheld by judgments in all the three tiers of judicial hierarchy.

14. The matters again came up for consideration in a batch of Writ Petitions before a learned Single Judge consequent to the first respondents herein/Writ Petitioners having been appointed as P.G. Assistants/B.T. Assistants Teachers between February and September 2011 in the same institution. They had filed Writ Petitions in the year 2015 seeking approval of their appointments contending that since the institution had been declared to be a religious minority institution, the institution had a right to appoint them as Teachers without seeking approval from the State.

15. In the said Writ Petitions, an interim direction was granted on 15.12.2015, directing temporary approval and for releasing the salary payable to them. Questioning that particular interim order, the State filed Writ Appeals and by an order, dated 22.12.2016, the appeals were dismissed and the interim directions were confirmed. Thereafter, the main Writ Petitions were taken up for consideration. A learned Single Judge of this Court disposed of the Writ Petitions by order, dated 07.05.2021, and had directed the Director of School Education to appoint an Officer not below the rank of Joint Director of School Education to conduct an enquiry and take a decision regarding the minority status of the institution. Thereafter, an enquiry was conducted and it was determined that the School did not enjoy minority status and therefore, the appointments could not be approved.

16. It must also be mentioned that a series of Writ Petitions had been filed as an outcome of a dispute between two rival factions within the institution questioning the rights of the other to be in management and administration of the institution. One of the Writ Petitions was W.P.(MD)No.1332 of 2012, which related to grant of approval for the appointment of ten Teachers. In paragraph No.5 of the common order, while examining whether the institution was a religious denominational institution, a learned Single Judge had held as follows:

                     “5.It is needless to record here that despite the above decree, which has attained finality, as against the State, the persons, who formed the Society and who have been at the helm of affairs for the past over 5 decades do not belong either to a religious or to a linguistic minority. All of them belong to the main stream Nadar Community, which professes the Hindu faith and which has as its mother tongue, Tamil. This fact is not seriously disputed by both sides.”

17. It was also found by the learned Single Judge that practically, under the same name with minor alterations, other Societies had also mushroomed claiming right leading to a confusion among the Societies themselves whether they could claim the right as a religious minority and finally, they all united by taking a decision that they are not a religious minority institution. Even the learned Single Judge in his common order, from which these appeals emanated, had categorically held that the institution cannot be considered as a minority institution.

18. The appellants herein both the State and the Society also uniformly claim that the institution cannot be considered as a minority institution. More importantly, the Society, which had filed W.A.(MD)Nos. 1346, 1509 and 1510 of 2022 and W.A.(MD)Nos.11 to 13 of 2023 have also not challenged that portion of the order of the learned Single Judge, wherein, their initial claim before the District Munsif Court that they were a minority institution had been rejected and it had been held that they are not a minority religious institution.

19. In view of this particular stand, it must be held that an argument can no longer be advanced that the institution is a religious denomination. As a matter of fact, even the first respondents in each Writ Appeals/Writ Petitioners have also not filed Writ Appeals questioning that portion of the order of the learned Single Judge.

20. The only issue in these Writ Appeals to be taken up for consideration is therefore the further observation of the learned Single Judge that though the institution is not a religious minority institution or a religious denominational institution, the appointment of the first respondents/Writ Petitioners should be approved, even though they have been appointed only on the ground that the institution has a right to so appoint them on the basis that the institution was a religious minority institution.

21. The individual, who so appointed the Writ Petitioners, was one of the rival claimants to the administration of the Society. At the time when he appointed the first respondents/Writ Petitioners, he considered himself to be a competent authority, though subsequently, his position was completely undermined and he was ousted from the management. The learned Single Judge observed that the first respondents/Writ Petitioners were qualified to be appointed and had been so appointed under the interim directions given in the year 2015, which was also confirmed by a Division Bench and they had also been paid salary and therefore, denial of approval at a later point of time would be inequitable and would cause hardships to the Writ Petitioners.

22. In effect, the learned Single Judge had taken what could termed as a sympathetic view and had directed grant of approval of appointment of the first respondents/Writ Petitioners. The legality of this finding is the only issue to be determined by this Court.

23. In (1997) 6 SCC 574, in the case of State of Rajasthan -vs.- Hitendra Kumar Bhatt, the Hon'ble Supreme Court examined the case of the respondent therein, who had applied for recruitment consequent to an advertisement issued by the Zila Parishad, Dungarpur. The Court noted that the applicants should have practical/technical qualifications of BSTC or its equivalent, recognized by the State Government, on the date of submission of application. The respondent did not possess such qualification on the date of submission of application. He, however, had appeared for the B.Ed., examination, but the result had not been declared. The results were declared only later. The interviews were held after the date of the declaration of that result. But since the respondent did not possess the qualification, he was not called for interview. He filed a Writ Petition and the High Court of Rajasthan in an interim order directed that he must be called for interview. He was, therefore, interviewed and on the basis of the direction of the High Court, he was also included in the list of selected candidates. He was appointed on provisional basis subject to the outcome of the Writ Petition. His appointment had also been confirmed. Thereafter, the Writ Petition was dismissed. The respondent therein has filed an appeal before the Division Bench of the High Court, which was allowed. Questioning that judgment, the State filed further appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court held as follows:

                     “6.Looking to the clear terms of the advertisement which we have referred to above, the respondent was not eligible for consideration. It is submitted by the respondent before us that since he has been continued and has now been confirmed we should not disturb his appointment. He has requested that his case should be considered sympathetically. The fact, however, remains that the appellants have taken the correct stand right from the beginning. The respondent's application was not considered and he was not called for an interview. It was on account of interim orders which were obtained by the respondent that he was given appointment and continued. He was aware that his appointment was subject to the outcome of his petition. One cannot, therefore, take too sympathetic a view of the situation in which the respondent finds himself. A cut-off date by which all the requirements relating to qualifications have to be met, cannot be ignored in an individual case. There may be other persons who would have applied had they known that the date of acquiring qualifications was flexible. They may not have applied because they did not possess the requisite qualification on the prescribed date. Relaxing the prescribed requirements in the case of one individual may, therefore, cause injustice to others.”

                     (Emphasis supplied)

24. The Hon'ble Supreme Court held that a requirement relating to qualification cannot be ignored, particularly, when there could be many having similar qualification and particularly, when others would have applied had they known that the prescribed qualification could be relaxed. It was held that relaxing the prescribed qualification for one candidate may cause injustice to others.

25. In the instant case, the first respondents/Writ Petitioners had been appointed merely because they had requisite qualification, but not after an advertisement had been made seeking applications from qualified individuals. They had been appointed at the whims and fancies of a particular individual, whose right was temporarily affirmed, but subsequently, undermined. If the institution itself had not claimed the right to be recognized as a religious denomination or as religious minority institution, then irrespective of the individual in management, unilateral appointments should not have been made. Exercise of unfettered authority can never be condemned. Equity can never be applied, when the initial claim to be recognized as a religious minority institution was surrounded with fraud.

26. As a matter of fact, the very same Society had also sought such declaration in other Districts. The suits filed by them suffered an order of dismissal and such dismissals were affirmed by the High Court. A stray declaration by a District Munsif in one District without adhering to the principle of proof of facts, can never be taken advantage by an individual, whose position was subsequently undermined. Every appointment made by him has to be declared as void ab initio. His position was only temporarily approved and finally, disapproved. If no right can flow to the first respondents/Writ Petitioners, then there can never be application of equity, when the appointment was void ab initio.

27. Mr.M.P.Senthil, learned Counsel for the State placed reliance on the judgment reported in (1993) 3 SCC 595 in the case of St.John's Teachers Training Institute (for Women), Madurai and others -vs.- State of Tamil Nadu and others, where again, a subsequent declaration of an institution as an unrecognized institution and its effect had been examined. It was held as follows:

                     “18. It has come to the notice of this Court that many institutions claiming themselves to be minority institutions within the meaning of Article 30(1) of the Constitution, invoke the jurisdiction of the High Court under Article 226 or of this Court under Article 32 for a writ of mandamus to recognise the institutions in question as minority institutions and pending the final disposal of such applications, an interim direction is sought to allow the students of such institutions to appear at the examinations concerned. In connection with such interim prayer, this Court in the case of A.P. Christians Medical Educational Society v. Government of A.P. [(1986) 2 SCC 667] said: (SCC p. 678, para 10)

                     “Shri K.K. Venugopal, learned counsel for the students who have been admitted into the MBBS course of this institution, pleaded that the interests of the students should not be sacrificed because of the conduct or folly of the management and that they should be permitted to appear at the University examination notwithstanding the circumstance that permission and affiliation had not been granted to the institution. He invited our attention to the circumstance that students of the medical college established by the Dar-us-Salam Educational Trust were permitted to appear at the examination notwithstanding the fact that affiliation had not by then been granted by the University. Shri Venugopal suggested that we might issue appropriate directions to the University to protect the interests of the students. We do not think that we can possibly accede to the request made by Shri Venugopal on behalf of the students. Any direction of the nature sought by Shri Venugopal would be in clear transgression of the provisions of the University Act and the regulations of the University. We cannot by our fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself. We cannot imagine anything more destructive of the rule of law than a direction by the court to disobey the laws.”

                     In view of the aforesaid pronouncement of this Court, the High Court should not have passed, interim order directing the respondents to allow the teachers of unrecognised institutions to appear at the examinations in question. Such teachers cannot derive any benefit on basis of such interim orders, when ultimately the main writ applications have been dismissed by the High Court, which order is being affirmed by this Court. The same view has been expressed by this Court, in connection with the minority unrecognised Teachers Training Institutions in the State of Tamil Nadu itself, in the case of State of T.N. v. St. Joseph Teachers Training Institute [(1991) 3 SCC 87] . As such no equity or legal right can be pleaded on behalf of the teachers admitted for training by such minority institutions, for publication of their results, because they were allowed to appear at the examinations concerned, during the pendency of the writ applications before the High Court, on the basis of interim orders passed by the High Court; which were in conflict with the view expressed by this Court in the aforesaid cases.”

                     (Emphasis supplied)

28. Further reliance was placed on the judgment of the Hon'ble Supreme Court reported in (2001) 10 SCC 191 in the case of State of Kerala vs Puthenkavu N.S.S. Karayogam and another, wherein, the Hon'ble Supreme Court had held that when the main impugned order was set aside, any consequential order made pursuant would automatically go. In the words of the Hon'ble Supreme Court, it is held as follows:

                     “9.Mr.E.M.S.Anam, learned counsel for the petitioner Vadavucode Puthencruz Grama Panchayat submitted that pursuant to the impugned order learned Single Judge had passed consequential orders and he pleads that this Court may interfere with the said consequential orders also. We find it unnecessary because when once the main impugned order is set aside any other consequential order made pursuant to the same would automatically go.”

                     (Emphasis supplied)

29. Thus, once, the position of the then Secretary had been undermined, all appointments made by him would 'automatically go'.

30. Further reliance was placed on the judgment of Hon'ble Supreme Court reported in (2003) 9 SCC 671 in the case of National Bal Bhawan and another -vs.- Union of India and others, wherein, the Hon'ble Supreme Court held as follows:

                     “4.It is no longer res integra that once a writ petition is finally disposed of by the High Court, any interim order passed in pending writ petition merges with the final order.........”

31. The learned Counsel for the State also placed reliance on the judgment of Hon'ble Supreme Court in the case of State of Madhya Pradesh and others -vs.- Ramesh Chandra Bajpai, reported in (2009) 13 SCC 635, wherein, while examining the issue of equity on the basis of an illegal order, the Hon'ble Supreme Court has held as follows:

                     “17.It is also well settled that Article 14 of the Constitution carries with it a positive concept of equality. That article cannot be invoked for perpetuating illegality. To put it differently, an illegal or wrong order passed in one case cannot be made the basis for compelling a public authority to pass similar order in other cases. Even if the State implements an erroneous order passed by the court, it cannot be precluded from challenging similar order passed in another case, simply because appeal was not preferred in the earlier case.”

                     (Emphasis supplied)

32. Thus, it is clear from the dictum laid in the aforementioned judgments that the learned Single Judge had erred in applying the principle of equity, in the face of illegality in the initial appointment.

33. Mr.N.Dilip Kumar, learned Counsel for the first respondents/Writ Petitioners was faced with a difficult task to justify the appointments particularly, when the institution in which they had been appointed itself had disowned the claim of religious minority. The learned Counsel argued very forcefully that the principle of equity must be applied.

34. The learned Counsel placed reliance on a judgment of the Hon'ble Supreme Court reported in (1981) 3 SCC 132, in the case of Gokaraju Rangaraju -vs.- State of Andhra Pradesh, wherein, the appointment of an Additional Sessions Judge was held to be invalidated by declaration of Supreme Court and the effect of such declaration to the judgments pronounced prior to such declaration was declared. The Hon'ble Supreme Court held as follows:

                     “4.We are unable to agree with the submissions of the learned Counsel for the appellants. The doctrine is now well-established that “the acts of the officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding, as if they were the acts of officers de jure” (Pulin Behari v. King-Emperor [(1912) 15 Cal LJ 517, 574 : 16 IC 257 : 16 Cal WN 1105 : 13 Cri LJ 609] ). As one of us had occasion to point out earlier “the doctrine is founded on good sense, sound policy and practical expedience. It is aimed at the prevention of public and private mischief and the protection of public and private interest. It avoids endless confusion and needless chaos. An illegal appointment may be set aside and a proper appointment may be made, but the acts of those who hold office de facto are not so easily undone and may have lasting repercussions and confusing sequels if attempted to be undone. Hence the de facto doctrine” (vide Immedisetti Ramkrishnaiah Sons v. State of A.P. [AIR 1976 AP 193 : ILR 1976 AP 878] ).”

                     (Emphasis supplied)

35. A careful perusal of the reasoning shows that the judgments already delivered were declared as valid and binding not because on the ground of equity, but because of the lasting repercussions and confusing sequels, they would have on the litigants and to protect public and private interest.

36. In the said case, the Hon'ble Supreme Court had examined the confusion which would have arisen owing to setting aside the judgments rendered by Additional Sessions Judge on the general public. The Court had not bestowed any benefit to the Additional Sessions Judge. This benefit is however what the first respondents/Writ Petitioners claim. They seek that they should be extended the benefit, when the individual who appointed them was subsequently declared to have had no authority to so appoint them.

37. In view of the consistent view that illegality can never be validated, we are of the view that granting benefit to the first respondents/Writ Petitioners by the learned Single Judge on the ground of equity is only on the basis sympathy, which can never be applied, when the appointments were unlawful and illegal.

38. In fine, the Writ Appeals are allowed. The Writ Petitions insofar as granting the relief of equity to the first respondents/Writ Petitioners are dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.