Dr.P.Sureshkumar Vs the Secretary to Government

PRAYER : Writ Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Mandamus, directing the respondents 2 and 3 not to approve any proposal of appointments, promotions and transfers emanating from the respondents 7, 10 and 11 until fresh elections are conducted for the 7 th respondent's society and duly elected body take charge of the affairs of the society and to appoint an administrator to conduct the affairs of the 7 th respondent's society until fresh election are held for the society and properly elected body takes charge of the affairs of the 7 th respondent society.

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For Petitioner : M/s.J.Maria Roseline For R1 to R3 : Mr.V.Omprakash Government Advocate For R7 & 10 : Mr.P.P.Alwin Balan For R15, 28, 38, 42, 43, 48 and 49 : Mr.V.S.Kishokkumar

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For R11 to 14, 16 to 27, 29, 32 to 37, 39, 40, 44, 45, 50, 52 and 53 :Mr.K.Ragatheeshkumar for M/s.Isaac Chambers

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O R D E R

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The present writ petition is filed for Mandamus directing the respondents 2

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and 3 not to approve any proposal of appointments, promotions and transfers emanating from the respondents 7, 10 and 11 until fresh elections are conducted for the 7^th respondent Society and duly elected body take charge of the affairs of the Society and to appoint an administrator to conduct the affairs of the 7^th respondent Society until fresh elections are held for the society and properly elected body takes charge of the affairs of the 7^th respondent Society.

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BRIEF FACTS: The brief facts as stated in the affidavit is that the writ petitioner is a CSI Christian by birth and is a Communicant of Nanjankulam Pastorate of Tirunelveli CSI Diocese, is regularly paying the annual subscription and is a qualified voter. The 7^th respondent Tirunelveli CSI Diocese is a religious

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body having faith in Christianity and its members are baptized Christians following and believing the Doctrine of Church of England. The 6^th respondent Tirunelveli Diocese Trust Association is a non-profit company incorporated under the Companies Act and the object of the Company is to purchase land and building for the purpose of establishing educational institutions, dispensaries, orphanages and other social service institutions, which is governed by Board of Directors who were elected once in four years from amongst the Executive Committee members of 7^th respondent society. The election for 7^th respondent society is conducted once in four years and the last election for the Society for the period 2011 to 2015 was conducted from 2011 to 2013. The said elections were conducted by three retired District Judges who were appointed as Commissioners in I.A.No.205 of 2011 in O.S.No.128 of 2011 Sub Court, Tirunelveli. The said suit was filed by three members of the Tirunelveli Diocese to declare the publication of election schedule as null and void or in the alternative to appoint a committee to supervise and to conduct election under the supervision of Sub Court, Tirunelveli. Considering the apprehension by the members that election would not be conducted in fair and unbiased manner, the Sub Court vide order, dated

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22.11.2007, had appointed a retired District Judge as Commissioner to conduct the elections and the Commissioner conducted the first phase of election at Pastorate level, but resigned thereafter. Subsequently, another retired District Judge was appointed vide order, dated 30.08.2011 and the said commissioner conducted the elections to the six Church Councils and declared the results except for two Councils, vide report, dated 13.09.2011, then resigned. Hence, another retired District Judge was appointed. At this stage two of the plaintiffs in O.S.No. 128 of 2011 filed an application in I.A.No.292 of 2011 seeking for recounting the votes to the Church Council and orders were passed to recount the votes in the four Church Councils out of Six Church Councils and to conduct the elections to the North Church Council and to count the votes in South Church Council. As a consequence of recounting, the election to six members to the Diocese in Executive Committee were altered . Infact, the Court Commissioner while recounting the votes pointed out the tampering of seals of the ballet boxes but directed the affected six members to file their objections before the Sub Court . Thereafter, the Commissioner proceeded to conduct elections at the next Diocesan level and the elections to the Executive Committee members as

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well as office bearers of the Diocese on 16.03.2013 and on declaring the results submitted the report on 21.03.2013. The persons whose results were altered in the recounting filed CRP(MD)No.2678 of 2014 challenging the order passed in I.A.No.292 of 2011 and obtained stay, but thereafter the revision petition was disposed of directing the revision petitioners to raise all the issues before the Sub Court in O.S.No.128 of 2011.

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The 11^th respondent is not entitled to act as Secretary cum Correspondent

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of 8^th and 9^th respondents’ Colleges and the 10^th respondent is not entitled to act as Bishop of 7^th respondent's Society for the following reasons:

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“The 11th respondent Gunasingh Chelladurai who did not get elected as Diocesan Council Member but nominated by the Bishop of Tirunelveli, i.e., the 11th respondent contested for the post of Lay Secretary and got elected. The very participation by the 11th respondent in the election to the post of lay Secretary is unlawful, bad and against the principles of representative democracy, since the said post is representative of the entire lay members of the Diocesan and only an elected Diocesan Council Member can contest for the post of lay Secretary. Then the 11th respondent was appointed as Secretary cum Correspondent of the 8th and 9th respondents’ Colleges by the 10th respondent Bishop on

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recommendations of Education Standing Committee. The Secretary of the Education Standing Committee is elected by the Executive Committee of the Diocesan and other members of the Education Standing Committee are nominated by the Executive Committee Members of the Diocesan. When the elections to the Executive Committee and the Diocesan Council of the Diocese are subject to electoral dispute, the appointment of 11th respondent as Secretary cum Correspondent of the 8th and 9th respondents' Colleges has no legal sanctity. The Diocesan Council elections as well as the election of the Executive Committee members and the election of office bearers were declared to be non-est by the 5th respondent, vide communication, dated 19.12.2014. Aggrieved by the actions of the 5th respondent in declaring the election as non est, the 11th respondent filed a suit in O.S.No.36 of 2015 on the file of Madras High Court Principal Seat, seeking permanent injunction restraining the 5th respondent from interfering in the functions of 11th respondent as Lay Secretary as per the election conducted on 16.03.2013 along with interim application in O.A.No.59 of 2015 for interim injunction restraining the 5th respondent from interfering with the functions of lay Secretary of the Diocese as per election conducted on 16.03.2013 but the interim application was dismissed on 13.04.2015 and the same was confirmed by the 1st Bench of the Madras High Court. The consecration of 10th respondent as the Bishop of Tirunelveli Diocese was subject to challenge in O.S.No.129 of 2013 on the file of Principal Sub Court, Tirunelveli, wherein the said consecration was declared as void and illegal, vide judgment,

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dated 28.01.2016, hence the election for the period from 2011 to 2015 is also automatically liable to be set aside as the elections to the Executive Committee members and office bearers will be substantially reversed, if the nomination of the 10th respondent is excluded. The 8th and 9th respondents' Colleges are governed by the Governing Board which comprises of elected office bearers and nomination made by the elected office bearers. Likewise, the Appointments Committee comprises of Bishop, Principal, Correspondent and one member of the governing body. The constitution of the governing body and the Appointments Committee of the 8th and 9th respondents' Colleges have no legal sanctity in as much as both the elections of the 7th respondent's society and the election of the bishop, 10th respondent have been declared as illegal and void by the competent authorities.”

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From the above narration of nomination and election, it would be evident that the 11^th respondent is not entitled to act as Secretary cum Correspondent of 8^th and 9^th respondents’ Colleges and the 10^th respondent is not entitled to act as Bishop of 7^th respondent's Society. The 11^th respondent cannot discharge any functions as a Secretary cum Correspondent of 8^th and 9^th respondents’ Colleges. However, the 11^th respondent unmindful of his incapacity has proceeded to issue a recruitment notification, dated 10.07.2013, for filling up various posts in the 8^th and 9^th

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respondents' Colleges, further the recruitment process was conducted illegally in flagrant violations of the provisions of Tamil Nadu Private Colleges (Regulation) Act and the Constitution Rules and the bye-laws of the Tirunelveli CSI Diocese Society. The petitioner has participated in the recruitment process and he is one of the applicants for the post of Librarian at 9^th respondent College, hence, he is aware of the gross illegalities committed during the recruitment process. He has filed a suit in O.S.No.71 of 2015 to declare the recruitment notification, dated 10.07.2013, issued by the 11^th respondent as null and void with consequential relief. In the said suit, the respondents 1 to 3 were impleaded as defendants 1 to 3 and the 10^th and 11^th respondents herein were also impleaded as defendants. In the said suit, notice was ordered and the defendants entered their appearance and filed written statements. The 11^th respondent by overlooking serious objections raised against his authority to act as Secretary cum Correspondent and amidst serious lapses committed by him and the 10^th respondent during recruitment process had proceeded to appoint several persons including the respondents 12 to 53 herein in various posts in the said Colleges. Even though the appointments are ex-facie illegal, the appointments have been made by the Appointments Committee

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comprising 11

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comprising 11^th respondent and 10^th respondent and other members who are appointed by elected body hence suffer from legal disability. The respondents 12 to 52 herein had filed various writ petitions before Madras High Court Principal Seat and the Madurai Bench of Madras High Court seeking directions to the 3^rd respondent to approve the appointments and the same is filed by suppressing material facts and projecting a non-issue as if the appointments were not approved on account of the appointments being made without prior approval of the 2^nd respondent. But the real issue is the incapacity of the 11^th respondent to act as Secretary cum Correspondent of the 8^th and 9^th respondents' Colleges and the lack of legal sanctity for the Appointments Committee to make appointments was suppressed. The respondent Nos. 2, 3 and 10 to 52 herein by colluding among themselves had misled the Court and obtained final orders and several interim directions to approve the appointment by the 3^rd respondent. Based on those orders passed by the High Court, more and more appointees are complicating and are filing writ petitions to get such similar wrongful orders.

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The petitioner is one of the Assistant Professors appointed in 9^th

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respondent's College and was terminated by the management in the year 2008 which was appointed by the elected body which managed to wrest power during elections held for the period 2008 to 2011 and the said termination order was set was confirmed by the Learned Single Judge, but Hon’ble Division Bench of this Court in W.A.No.327 of 2009 had set aside the termination order. Aggrieved over the management had preferred a Special Leave Petition before the Supreme Court and the cases are pending in Supreme Court in Appeal (Civil) Nos. 12504 to 12524 of 2010. Further the petitioner herein had filed a Review Petition in Review Application SR. No. 43327, 43332, 43337 8 43342 of 2016 on the file of the Principal Seat of Madras High Court against the orders dated 16.11.2015 obtained by the respondents 26 to 29 in W.P.Nos.35584 to 35587 of 2015 and in the said review applications, the petitioner has been granted leave to file the review applications and the review applications have been transferred to Madurai Bench of Madras High Court. The Review applications came up for hearing before this Court on 27.06.2016 and the condone delay petitions were allowed and the Review applications were directed to be numbered and posted before this Court on 11.07.2016. One of the Executive Committee member of the 7^th

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respondent society had filed a writ petition in W.P.(MD)No.18690 of 2015 before this Court seeking for Writ of Mandamus directing the Secretary to Government, Department of Education not to allow the 7^th respondent society TDTA and the Bishop to do any act affecting the day-to-day administration of the educational institutions of the Tirunelveli CSI Diocese or in any way affecting the service conditions of the employees of Tirunelveli CSI Diocese either by convening Executive Committee meeting and Diocesan Council meeting till the elections are conducted. In the said writ petition, this Court had passed an Interim Order on 15.10.2015 directing the respondents to maintain Status Quo. However, the 10^th respondent in defiance of the order passed by this Court is continuing to take decisions concerning appointments, promotions and transfers of the employees of the 7^th respondent society. As on date there is no duly elected body to administer and govern the Tirunelveli CSI Diocese and its educational institutions. At present, direct payment orders are in operation in respect of the 8^th & 9^th respondents' Colleges. In the stated circumstances, without an administrative body and a Bishop to govern and administer the day-to-day affairs of the society there is a serious law and order problem prevailing in the Tirunelveli CSI Diocese and

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the society is in the brink of falling into further disaster if this situation continues. Hence the present writ petition for Mandamus directing the respondents 2 and 3 not to approve the appointment, transfers etc for the other respondents.

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COUNTER BY 10^TH RESPONDENT: The 10^th respondent Bishop had

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filed counter wherein it is stated that the petitioner's averment that the 7^th respondent is a society is wrong and misconceived one. The Tirunelveli Diocesan Trust Association (TDTA) is governed by its Memorandum and holds the properties of the Diocese as its Trustee. The memorandum authorizes the Bishop as the ex-officio member and as the Chairman of TDTA. Further submitted that the writ petition is highly abusive, the petitioner has no locus since the petitioner is not an aggrieved person and even mere violation of law will not entitle an individual to challenge the order, unless he is aggrieved, the petition is not maintainable either in facts or in law, the petition is filed as public interest litigation. The petitioner is oblivious of the fact that in the democratic setup of the Diocese, elected member of committees may not be dethroned as per the whims and fancies of any person. The prayer in the writ petition has become infructuous.

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Further stated that the Diocese is governed by its constitution and a written text of Rules and Regulations, wherein the Bishop is the head of Diocese elected by an electoral college and would hold the post till the age of superannuation. The Diocese being an unregistered body, a separate Association as Tirunelveli Diocesan Trust Association (TDTA) was formed which is governed by its Memorandum and Articles of Association and incorporated under Companies Act, which holds the properties of the Diocese as its Trustee. By virtue of the provisions of the Memorandum, the Executive Committee of the Diocesan Council would become the members of the TDTA, the Bishop shall be the exofficio member and will hold the post of chairman of TDTA. The suit in O.S.No. 128 of 2011 before Sub Court, Tirunelveli was filed challenging the election schedule proposed to be conducted by the then Bishop of the diocese namely Rt.Rev.J.J.Christdoss both individually and in representative capacity. The said suit and the counter claim both got dismissed, hence the writ petition based on the above case is an attempt to create a confusion and chaos in the administration of the diocese. The 11^th respondent, the then secretary of the college was nominated by the Bishop as Diocesan Council Member as per Chapter IV, Rule 2 (d) (iv) of

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the Diocesan Constitution. The petitioner's averment that only an elected diocesan council member can contest for the post of lay secretary is illusionary and without any authority. The appointment of 11^th respondent as secretary is well within the powers of the committee and the petitioner has no locus to challenge the same. Any person chosen by the Higher Education Standing Committee and approved by the manager of the colleges i.e. The Bishop and Chairman of the Educational agency namely TDTA can be the Secretary of the College. Even a non-member of the diocese shall hold the Secretary cum correspondent post of the college. Further the appointment of the 8^th and 9^th respondents were duly approved by the 2^nd and 3^rd respondents. Hence the petitioner’s averment that the secretary cum correspondent of the respondent colleges has no legal sanctity is devoid of merits. The communication by the 5^th respondent is an internal communication between the synod and the bishop to conduct election for two councils does not invalidate the committee or the secretary of the college. The suit in O.S.No.36 of 2015 and O.A.No.59 of 2015 before the High Court was filed by the Lay Secretary of the Diocese with a prayer for restraining the 5^th respondent and two others from interfering with the function of the Lay Secretary which is not a subject matter of

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this writ petition. Thereafter the suit got dismissed and the 5^th respondent also revoked his communication dated 19.12.2014. The petitioner is ignorant of chapter I (B) Rule 18 of the Diocesan Constitution wherein it states failure of any council to return its representatives to the Diocesan Council does not invalidate any act or resolution of the committee. The then Bishop was consecrated in the year 2009 and the judgment passed in O.S.No.129 of 2013 was set aside in A.S.No.11 of 2016. The other averment that the elections to the executive committee will be substantially reversed if the nominations of the 10^th respondent are excluded are all illusionary and misleading. The petitioner has no right to challenge the entitlement of the Bishop of the Diocese or the Secretary of the college in this present writ petition when the same was decided in the competent Civil Court. The suit filed in O.S.No.71 of 2015 on the file of Principal District Munsif Court Tirunelveli was dismissed on 07.01.2021. The petitioner had filed the present petition with evil intention since the petitioner was not selected to the post of librarian and had challenged the appointments of individual respondents with an ulterior motive. As per the constitution of the diocese the manager alone has entered into the contract with the teaching staff and there is no bar for the

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Bishop to enter into the said contract. The other averment regarding appointment of lecturers in the year 2008 are not relevant to the present case. Being a minority institution the power to appoint anyone of their choice is vested with the management. Hence the 10^th respondent prayed to dismiss the writ petition.

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COUNTER BY 14^TH RESPONDENT: The respondents have grouped as two groups and had filed counters. In one group the 14^th respondent’s counter is comprehensive, hence the same is considered. The writ petition is not maintainable, the petitioner has no locus-standi as he is not a contestant to the respondent’s post. The respondents were appointed on 24.10.2014 (respondents were appointed on various dates) in the various posts based on their qualification and are continuously serving for the past nine years, their qualifications were approved by UGC. The college submitted proposal seeking approval of appointment, however the Joint Director declined to approve stating prior permission was not obtained, but the minority institution is not required to obtain prior permission to fill the sanctioned post. The 2^nd respondent had registered the secretaryship of Mr. Gunasingh Chelladurai on 31.05.2013 for the period

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11.05.2013 to 31.03.2014 and the same was further extended for the period 01.04.2014 to 31.03.2015 vide proceedings dated 14.05.2014. The imposition of direct payment has no relevance with regard to the day-to-day functioning of the management and the appointments were made well within the approved tenure of the secretary. The respondents had filed writ petitions challenging the nonapproval of appointment, but based on interim order dated 15.12.2015, the Joint Director approved the appointments and the individual respondents are drawing salary and other benefits, later on the writ petition was disposed. In the meantime, the petitioner has filed the present petition not to approve the appointments on the ground that various suits pertaining to the election was pending. The petitioner is also as aspirant to the posts in the colleges and had filed a 3^rd party Rev.Appl.Nos. 84,85,86 and 87 of 2016 against the order dated 16.11.2015 passed in W.P. (MD)No. 35584 to 35587 of 2015 and the petitioner has raised almost similar grounds in the said Review Application and the was dismissed vide order dated 21.03.2017. The petitioner had also filed O.S. No.71 of 2015 on the file of District Munsif Tirunelveli inter alia praying to declare the appointment of as null and void since recruitment notification is illegal and the same was dismissed on

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07.01.2021. For the same cause of action the petitioner had filed suit as well as the present writ petition, hence the present petition is abuse of process of law. The election issue is settled, hence there are no repercussions with regard to the nomination of the 11^th respondent Mr. Gunasingh Chelladurai as Secretary of college and with regard to appointments of respondents. The nomination of 11^th respondent as Lay - Secretary has no connection with regard to his nomination as Secretary of colleges, in fact the said nomination was duly recognised by the Education Department. The communication of 5^th respondent dated 19.12.2014 has no relevance for the continuation of 11^th respondent as Secretary for the colleges, since it is only an internal communication made by Synod - Secretary to the Bishop, recommending to act upon the recommendations of Legal Questions Committee with regard to the West and South-West Church Councils. Since the 5^th respondent has interfered with the election results unnecessarily, the 11^th respondent instituted a suit in O.S No. 36 of 2015 on the file of the Principal Seat of High Court of Madras. The dismissal of injunction petition in O.A. No. 59 of 2015 dated 13.04.2015 also has no relevance with regard to the appointments of the respondents. The suit in O.S.No.129 of 2013 has no relevance to the present

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issue. Since the respondents failed to grant approval the respondents had preferred writ petitions. Considering the legality of the appointments this Court issued directions to approve our appointments. If the petitioner is aggrieved, the petitioner ought to have impleaded in the said writ petitions. Without doing so, the petitioner has no locus-standi to state that the said orders were passed by misleading this Court. The respondents appointment were duly approved by the committee following due procedure of law, hence the petitioner has no locus - standi to seek a direction not to approve the appointments. The prayer is the Writ Petition itself has become Infructuous, in view of the fact that already approval was granted and hence the writ petition is liable to be dismissed with costs.

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COUNTER BY 15^TH RESPONDENT: Another group of respondents

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had filed counter and the same is taken for consideration. The counter states that the act of filing the writ petition by itself is an absurd act, that the writ petitioner having admitted that 10th respondent is the competent person having authority to preside over the Selection Committee and also having participated in the selection process as an aspirant, but for the sole reason that he failed to succeed in the

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recruitment as a "Librarian", the present writ petition is filed questioning the validity of the composition or competency of the selection committee, after completion of recruitment, which is impermissible under Law. It is settled preposition of law that in service matters, the rule of game cannot be changed, once the recruitment process commenced and that a candidate who has accepted and participated the selection process cannot question or challenge the mode of selection or the process involved. The conduct of election would not in any manner alter/vary the authority/competency of the Bishop, who being the Chairman of diocese shall always remain vested with authority/duties/power conferred upon him, regardless of the dispute relating to the office bearers of the diocese. Hence the aforesaid allegations/averments have nothing to do with the recruitment process, which is exclusively in the academic side. Infact the suit in O.S.No.128 of 2011 before the Sub-Court, Tirunelveli was also dismissed and hence no reliance or reference whatsoever can be taken on it. Pursuant to the recruitment notification dated 10.07.2013 the respondents had applied to the posts called for and the respondents got selected to the post and was appointed on various dates in the various posts based on their qualification and are

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continuously serving for the past nine years, their qualifications were approved by UGC. The college submitted proposal seeking approval of appointment, however the Joint Director declined to approve stating prior permission was not obtained, but the minority institution is not required to obtain prior permission to fill the sanctioned post. While being so, the petitioner filed a petition to implead himself in the writ petition, but the same was dismissed. During the pendency of the writ petition the 2^nd respondent through his proceedings in Na.Ka.no.50889/F4/2015 dated 15.07.2016 accorded approval of appointment along with all attendant benefits and submitted the same before this Court, the same was recorded and the writ petition was closed. Thus the prayer sought for in the Writ Petition has become Infructuous and it is to be dismissed on that ground also. The petitioner had fraudulent obtained appointment order by making use of the disputes in the management, hence the petitioner’s appointment was terminated by the Hon’ble Supreme Court. The O.S.No.71 of 2015 filed by the writ petitioner questioning the Notification for appointment of Teaching & Non-teaching post in colleges was also dismissed on 07.01.2021, as such the petitioner has projected an absolute false case in the writ petition by citing irrelevant and immaterial facts &

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circumstances. Hence the appointment of individual respondents are valid, lawful and made as per the Rules and regulations of the Diocese in due adherence with the contemplated/prescribed Norms and procedures. Hence the respondents prayed to dismiss the writ petition as devoid of merits.

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Heard M/s.J.Maria Roseline, the Learned Counsel appearing for the writ petitioner, Mr.V.Omprakash, the Learned Government Advocate appearing for the respondents 1 to 3, Mr.P.P.Alwin Balan, the Learned Counsel appearing for the respondents 7 to 10, Mr.V.S.Kishokkumar, the Learned Counsel appearing for the respondents 15, 28, 38, 42, 43, 48 and 49, Mr.K.Ragatheesh Kumar for M/s.Isaac Chambers, the Learned Counsel appearing for the respondents 11 to 14, 16 to 27, 29, 32 to 37, 39, 40, 44, 45, 50, 52 and 53 and perused the records.

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DISCUSSION: The first contention of the petitioner is that the consecration of the bishop is declared as void and invalid in O.S.No.129 of 2013, hence the election for the period from 2011 to 2015 is also automatically liable to be set aside as the elections to the Executive Committee members and office

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bearers will be substantially reversed, if the nomination of the 10^th respondent is excluded. But the respondents submit that the judgment and decree passed in O.S.No.129 of 2013 was set aside in A.S.No.11 of 2016 vide judgment and decree dated 15.02.2017. Against the same second appeal is preferred and the same is pending before this Court. Therefore, this Court is inclined to leave the issue open and the same would be decided based on the outcome of the second appeal.

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The next contention of the respondents is that the writ petition is not maintainable since the petitioner is not an aggrieved person. Further the writ petitioner was terminated from service since his appointment was declared as illegal, hence with evil intention the present writ petition is filed. But the contention of the petitioner is that the petitioner being a voter in the Diocese, has right to question the election if it is not conducted in free and fair manner and also has right to challenge the appointments, if appointments are made without power. And further submitted that the petitioner has disclosed the said fact of termination in order to disclose the entire fact so that the petitioner may be not accused of not disclosing the facts and not come with clean hands. It is seen that the writ

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petitioner was appointed as Assistant Professor but terminated in the year 2008 and the issue went up to Supreme Court, wherein the Hon’ble Supreme Court had confirmed the termination since the appointment was made pending litigation taking advantage of interim “status quo ante” order. However, the same has nothing to do with the issue raised in the present writ petition. Further, it is seen the petitioner had raised some serious lapses in conducting election and also raised serious plea that the appointments are made without any power. Hence, even though the petitioner is not affected, if serious lapses in conducting the elections are brought out and serious allegation against appointment without power are brought out and when proper remedy was not granted in any of the Forum or Courts, then this Court under Article 226 is bound to consider the issues raised by the petitioner.

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Further the vehement contention of the respondents is that the Diocesan Executive Committee consists of several members wherein some are nominated and others are elected. Further the bishop has power to nominate any person for a period of “one year” where ever it is necessary. Hence, if the election of a member

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is disqualified, the same would not be an impediment in any appointments. In order to consider this plea, the rules governing the constitution of the Committees are perused. It is seen some members are nominated and some are elected. If the election to the members is not conducted in free and fair manner and election was rigged, then such illegally elected members are holding the post in the Executive Committee, then the appointments to the any post would be vitiated. Hence the present writ petition is filed for Mandamus not to approve the appointments, transfers, promotions.

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Further in the present case the election was conducted for the period from 2011 to 2015 and the election was conducted during 2011 to 2013. The election process was challenged in O.S.No.128 of 2011 wherein the prayer in the suit is to declare the election schedule declared by the 3^rd defendant therein as null and void and consequential permanent injection restraining the 2^nd and 3^rd defendants therein from conducting the elections for the 1^st phase to 4^th phase elections commencing from 24.07.2011 to 29.09.2011 and 30.09.2011 and also for the TDTA Committee of Management. If the prayer is rejected, alternatively the

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plaintiff had sought to appoint committee to supervise and conduct elections under the supervision of the Court. The specific allegation in I.A.No.205 of 2011 I.A.No.292 of 2011 in O.S.No.128 of 2011 is that the retired District Judge Mr.Soundarapandian was appointed and he conducted elections for six Church Councils namely Central Church Council, West Church Council, North Church Council, South Church Council, Northwest Church Council and Southwest Church Council. But certain objections were raised by the parties and so recounting was ordered in I.A.No.292 of 2011 for the Northwest Church Council, Southwest Church Council and West Church Council. The Judge Commissioner had filed his report after hearing both sides, wherein the report states there was tampering of seals of the ballet boxes during the election of the Church Councils and the Judge Commissioner had directed the affected parties to approach the Court. The relevant portion of the report is extracted:

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“Some of the ballot boxes did not have the locks and paper cover containing ballots were not properly pasted and the white wrapper on the covers were torn and in some places above the white wrapper, another brown wrapper was affixed, and the brown wrapper was also not properly affixed and there was opening in the cover at some places. In some covers, there were changes in the pasting of cover and visible to the naked eyes. There were some invalid

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votes in the recounting, while there were no invalid votes in the original counting”

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It is seen that the tampering of ballots and ballot boxes was reported in the Commissioner’s Report dated 20.03.2013. But the Judge Commissioner without cancelling the election had directed the parties to approach the Court in O.S.No.128 of 2011, which had led to raise the present issues in the writ petition.

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It is pertinent to state that after recounting the 6 members of the Diocesan Executive Committee was altered. Earlier some 6 persons were declared elected, but on recounting some other 6 persons were declared elected. In other words, the persons who were declared elected, on recounting lost the elections. Based on the report, the affected parties had submitted their objections, allegations and contentions before the Sub Court. In the meanwhile, the appointments, transfers and promotions are made by the committee consisting of persons who had lost their elections on recounting. In such circumstances, the appointments of the respondents 12 to 53 are without any power. After hearing the objections, the Sub Court had set aside the third phase election and then new Judge Commissioner

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was appointed. After hearing the rival submissions, the Sub Court in I.A.No.205 of 2011 and I.A.No.292 of 2011 vide order dated 10.02.2017 had set aside the 3^rd phase election and had ordered for new Judge Commissioner. The same is being challenged C.R.P.(MD)No.408 of 2017 and the Hon’ble High Court vide order dated 24.03.2017 had held that due to irregularities the election in invalid and consequently it cannot be stated that the office bearers had assumed office. The relevant portion is extracted hereunder:

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“16.A reading of the Commissioner's report with regard to recounting of votes show that some of the Ballot Boxes did not have the locks and paper cover containing Ballots were not properly pasted and the white wrapper on the covers were torn and in some places, above the white wrapper, another brown wrapper was affixed and the brown wrapper was also not properly affixed and there was opening in the cover at some places. In some covers, there were changes in the pasting of cover and visible to the naked eyes. There were some invalid votes in the recounting while there were no invalid votes in the original counting. The Commissioner pointed out these defects and also stated so in his report. In spite of the same, the Commissioner had proceeded with conducting of 4^th phase of election and declared the result. In view of invalid election to 3^rd phase as irregularities found during recounting of the votes in the 3^rd phase of election, the election conducted to 4th phase, without any direction from the Court, is invalid. In the circumstances, it cannot be said that the office bearers

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assumed charge in March 2013 and their term will end by the end of March 2017 . On the other hand, the contention of the learned Senior Counsel appearing for the respondents 1 to 3 that only when the office bearers are elected validly, their term will commence from the date of first meeting, has considerable force.

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17.The contention of the learned Senior Counsel appearing for the petitioners that the election process for the period from 2017 to 2021 has already been started and that the order of the learned Additional Subordinate Judge is invalid, has no force. The petitioners themselves, in Ground No.13 in C.R.P.(MD)No.408 of 2017, had admitted that by order of injunction, dated 05.10.2016, granted by the Trial Court in I.A.No.497 of 2016 in O.S.No.168 of 2016 and I.A.Nos.511 and 512 of 2016 in O.S.No. 172 of 2016, the election for the period from 2017 to 2021 could not be proceeded with, in respect of contested pastorate level election. The pastorate level is the 1st phase. Once the election to 1^st phase itself is injuncted from proceeding with, the election to other phases also cannot be proceeded with. From the materials available on record, it is seen that the injunction was granted on 05.10.2016, the learned Senior Counsel appearing for the petitioners in C.R.P.(MD)No.408 of 2017 has not stated that whether they have taken steps to get the injunction vacated to proceed with election from 1^st phase for the period from 2017 to 2021. In the circumstances, in the interest of justice, the election may be restricted from third phase only for three Church Councils, i.e., South West Church

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Council, North West Church Council and West Church Council. After conclusion of 3^rd phase election for the above three Church Councils, the Commissioner shall proceed to conduct the election for the 4^th phase and file his report into Court. After completion of 4th phase election as per ByeLaw, the term of elected office bearers shall commence from the date of first meeting for four years.

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18.In view of the above facts, the Civil Revision Petitions are dismissed as devoid of merits. The learned Additional Subordinate Judge, has not appointed any Commissioner. The learned Additional Subordinate Judge, Tirunelveli, is directed to appoint a Commissioner forthwith with a direction to the Commissioner to proceed with the election for 3rd phase in respect of South West Church Council, North West Church Council and West Church Council and after completion of election to the 3^rd phase, conduct election to the 4^th phase within three months from the date of appointment and file a report into the court on completion of 3^rd and 4^th phase elections.”

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As stated supra the Hon’ble High Court in CRP has held that due to irregularities during 3^rd phase of election, then 4^th phase election is invalid and further held it cannot be said the office bearers assumed charge in March 2013, when the election to Church Council was held illegal and when re-election was

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ordered. For this reason, the Hon’ble Court in CRP had directed to conduct the 3^rd phase election in respect of South West Church Council, North West Church Council and West Church Council (where the elections were rigged) and thereafter proceed with 4^th phase election. Therefore, this Court is of the considered opinion that it cannot be said that there was valid elected Diocesan Executive Committee, when the election was rigged. Also, this Court is of the considered opinion that the office bearers had not assumed office in March 2013. In other words, if the office bearers are elected validly, then only they can assume office, then act and discharge their duties. When the respondents had not assumed office in March 2013 as held CRP and this Court also concur with the said finding, then the appointments, transfers and promotions during 2014 ought to be held as invalid. In other words, when the orders passed in I.A.No.205 of 2011 and I.A.No.292 of 2011 which is confirmed in C.R.P.No.408 of 2017 would indicate the election to three Church Councils were irregular and hence the persons who assumed office in March 2013 based on the irregular election has no right to be in Diocesan Executive Committee and consequently there was no power to grant appointment orders.

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The contention of the respondents that Diocesan Executive Committee consists of several members wherein some are nominated and others are elected, hence if one person election is declared as irregular the same cannot be impediment for the said appointments. The said contention may be acceptable initially, but on deeper scrutiny it would create a situation that any one person can rig the election and continue such irregularity / tamper the ballot boxes and win elections and become part of the Diocesan Executive Committee, the same would give a leverage that any irregularity or tampering would not be an issue and such irregularity can be continued. Even one person is elected by tampering, then the committee would be consisting of illegally elected member, hence it cannot give any power to carry on the appointments.

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It is pertinent to state that the illegal assumption of office is in March 2013 and the appointments are made during 2014, the election declared as illegal in the year 2017 and illegality was confirmed by High Court in the year 2017. If the time line of events is considered, it is evident that the appointments are made

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by the Committee Members who had tampered with the ballot boxes. Therefore, this Court is of the considered opinion that such appointments, promotions, transfers ought to be interfered with.

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17.However, the persons who were appointed had continued their employment for the past 10 years. And as rightly pointed out by the Learned Counsels appearing for the respondents, at this stage if their appointments are set aside the appointees alone would be affected for no wrong committed by the appointees. But the person who had committed such irregularity by rigging the elections would go scot-free. The Learned Counsel appearing for the petitioner submitted that the appointments are made hastily for personal gain of committee members, hence there was rigging in elections. Further submitted if such practice is not curtailed, then the same would affect the institution is future. Therefore, this Court in the interest of justice is issuing the following directions:

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i. The 5^th respondent is directed to identify the persons who had rigged the elections and impose fine of Rs.10,000/- each payable to the following orphanage:

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“Government Children Home (Govt. Orphanage), Dr.Thangaraj Colony, KK Nagar, Madurai – 625 020. Account No: 37487255860 State Bank of India”

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ii. In future, whenever any election is conducted and if there are any irregularities committed by the contesting candidates, then the said candidates ought to be restrained from becoming the member of any committee, especially Executive Committee and Appointment Committee.

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iii. As far as the appointments for the period from 16.03.2013 to 22.04.2017 are concerned, the CBCID shall investigate if there is any irregularity in such appointments and any corruption committed in such appointments. The CBCID shall submit a report before this Court. If the report indicates any prima facie evidence, then appropriate criminal action shall be initiated

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against such persons.

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For the reasons stated supra, the writ petition is disposed with above directions. No costs. Consequently, connected miscellaneous petitions are closed.

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06.01.2025

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Index : Yes / No NCC : Yes / No

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Tmg

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To

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