Kerala High Court
Parakkal Madhavi vs The Govt. Of Kerala
Author: C.T.Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
FRIDAY, THE 20TH DAY OF JULY 2012/29TH ASHADHA 1934
WP(C).No. 28243 of 2003 (K)
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PETITIONER:
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PARAKKAL MADHAVI,PARAKKAL HOUSE,
NEAR KOTTIYODI, KANNUR DIST.
BY ADV. SMT.VIDHYA. A.C
RESPONDENTS:
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1. THE GOVT. OF KERALA, REP. BY ITS SECRTRY TO THE
GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM.
2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM.
3. THE DEPUTY DIRECTOR OF EDUCATION, KANNUR.
4. THE ASSISTANT EDUCATION OFFICER, KUTHUPARAMBA, KANNUR DIST.
5. P.GOVINDAN, S/O.LATE KUNHIKRISHNAN, PRATHIBHA ,
P.O. PATHAYAKKUNNU, KANNUR DIST.
6. P.PRASANNA, W/O.LATE KUMARAN, PARAKKAL HOUSE,
P.O. PATHAYAKKUNNU, THALASSERY, KANNUR DIST.
7. P.SHEEBA, D/O.KUMARAN, DO. DO.
* 8. P.NISHAD, S/O.KUMARAN, DO. DO. (DELETED)
* 9. P.RESHMA, D/O.KUMARAN, DO. DO. (DELETED)
10. P.PUSHPAVALLY, D/O. T.K.LAKSHMI, PARAKKAL HOUSE,
P.O. PATHAYAKKUNNU, THALASSERY, KANNUR DIST.
11. P.RATHI, DO. DO.
12. P.MALATHI, DO. DO.
13. P.SAVITHA, DO. DO
VK
WP(C).No. 28243 of 2003 (K)
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14. P.BABY SHAILAJA, DO. DO.
* 15. P.RAMESAN, DO. DO. (DELETED)
RESPONDENTS NO.8 AND 15 DELETED.
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* R8.P.NISHAD, S/O. KUMARAN, PARAKKAL HOUSE,
P.O.PATHAYAKUNNU, THALASSERY, KANNUR DISTRICT.
* R15. P.RAMESAN, S/O.T.K.LAKSHMI, PARAKKAL HOUSE,
P.O.PATHAYAKUNNU, THALASSERY, KANNUR DISTRICT.
THE NAME OF RESPONDENTS 8 AND 15 DELETED FROM THE LIST OF
RESPONDNENTS AS PER ORDER DT. 27.2.04 IN IA. 2605/04.
R9.IS DELETED FROM PARTY ARRAY AS PER ORDER DT. 13.8.09 IN
IA 9990/09.
R1, R2 BY GOVERNMENT PLEADER SRI.BIJU MEENATTOOR
R6. R7, R10 TO R14 BY ADV. SRI.A.MOHAMED MUSTAQUE
BY ADV. SRI.M.K.SUMOD
BY ADV. SRI.KAUSER EDAPPAGATH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 20-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
VK
WP(C).No. 28243 of 2003 (K)
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APPENDIX
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PETITIONER'S EXHIBITS
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EXT.P1. COPY OF REGISTERED ASSIGNMENT DEED NO.1348/1946 OF SRO
KATHIROOR EXECUTED BY KUNNATH KUNHIKANNAN IN FAVOUR OF PETITIONER'S
MOTHER PARAKKAL CHERIYAMMA.
EXT.P2. COPY OF AGREEMENT NO.1390/1946 EXECUTED BETWEEN CHERIYAMMA,
KUNHIKRISHNAN AND RAMER.
EXT.P3. COPY OF ORDER NO.B5/53427/97/L.DIS DATED 9.9.97 OF THE DIRECTOR
PUBLIC INSTRUCTION.
EXT.P4. COPY OF G.O. (RT) NO.3213/98/G.EDN. DATED 11.8.98 OF THE GOVT.
OF KERALA.
EXT.P5. COPY OF ORDER NO.G5-47381/98/K.DIS DATED 24.11.98 OF THE
DIRECTOR PUBLIC INSTRUCTION.
EXT.P6. COPY OF REVISION PETITION DATED 11.1.1999 FILED BY THE
PETITIONER BEFORE THE GOVT.
EXT.P7. COPY OF ORDER OF THIS HON. COURT IN R.P. 203/99 IN O.P. 12882/99
EXT.P8. COPY OF G.O. (RT) NO.3981/99/G.EDN. DATED 21.8.99 OF THE GOVT.
OF KERALA.
EXT.P9. COPY OF ORDER NO.K.DIS B.2589/2002 DATD 30.10.2002 OF THE
ASSISTANT EDUCATIONAL OFFICER, KUTHUPARAMBA
EXT.P10. COPY OF JUDGEMENT IN O.P 27802/99.
EXT.P11. COPY OF ORDER NO.G4/27312/2003/DPI DATED 15.7.2003 OF THE
DIRECTOR PUBLIC INSTRUCTION.
EXT.P12. COPY OF LETTER NO.B.1129/2003 DATED 14.3.2003 SUBMITTED BY THE
AEO TO THE DPI.
EXT.P13. COPY OF LETTER NO.B/2552/2003 DATED 18.7.2003 OF THE AEO
KUTHUPARAMBA TO THE PETITIONER.
RESPONDENT'S EXHIBTS : NIL
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/ TRUE COPY /
P.A. TO JUDGE
VK
C.T.RAVIKUMAR, J.
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W.P.(C)No.28243 of 2003
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Dated 20th July, 2012
JUDGMENT
The petitioner claims to be the owner of Kottiyodi L.P.School, for brevity `the school' only, falling under the jurisdiction of the fourth respondent. The case of the petitioner is as hereunder:-
Much prior to the commencement of the Kerala Education Act and Rules the school was originally owned and managed by one Parakkal Othenan. It situates in a property having an extent of 20 cents comprised in Resurvey No.83/4 of Pattiam village. Later, his entire right in the school as also in the property were sold in court auction as per order in E.P.No.360/1939 in O.S.No.841/1935 of the District Munsiff Court, Kuthuparamba to one Kunnath Kunhikannan. The said Kunnath Kunhikannan assigned his right to Parakkal Cheriyamma as per Ext.P1. Cheriyamma and brothers of her husband viz., Parakkal Kunhikrishnan and Parakkal Ramar, then, executed Ext.P2 settlement deed bearing No.1390 of 1946 of Kadirur Sub Registry. As per the said settlement deed, the right of management and correspondentship would vest with the said three persons and the salary of the teachers were to be paid and expenses for periodical maintenance of the school building were to be met, from the grant to be WP(C).No.28243/2003 2 received and whatever remains thereafter was to be divided equally between them. Based on Ext.P2, Ramar was shown as the Manager and correspondent of the school. Among the three, Kunhikrishnan died first, leaving behind his sons Govindan (the 5th respondent herein) and Kumaran as his legal representatives. Subsequently, Kumaran also died. His wife and children are arrayed in the writ petition as respondents 6 to
9. The aforesaid Ramar died on 24.12.1988 leaving behind his wife Lakshmi and six children. Now, Lakshmi is no more. Their children are arrayed as respondents 10 to 15 in this writ petition. In 1993 the last among the trio Smt.Cheriyamma died. Upon her death her legal representatives effected partition of her properties and the school and the appurtenant land were allotted to the petitioner as per the registered partition deed No.797 of 1993. The petitioner asserts ownership over the school as also the appurtenant property in the aforesaid backdrop.
2. Later, the petitioner applied for transfer of management of the school in her favour, before the second respondent, under Rule 5A of Chapter III of the Kerala Education Rules (for short `the KER'). It was contended therein that the right of management and correspondentship of the others in the school extinguished with the death of the aforesaid Kunhikrishnan and Ramar and, therefore, being one of the legal WP(C).No.28243/2003 3 representatives of Cheriyamma and the allotee of the school and land appurtenant as per the registered partition deed No.797 of 2003 she became the absolute owner of the school as also the appurtenant land. That application for transfer of management of the school was allowed by the second respondent as per Ext.P3 order dated 9.9.1997. Against Ext.P3, Lakshmi, the widow of Ramar had filed an appeal before the Government. As per Ext.P4 order dated 11.8.1998 Government set aside Ext.P3 order. Consequently, the second respondent issued Ext.P5 order directing the parties concerned, including the petitioner, to prepare a scheme and submit it for approval before the Educational authorities concerned. As per the same, the petitioner was permitted to function as Manager of the school for a period of one year. Feeling aggrieved by Ext.P5 the said Lakshmi and Prasanna, the widow of Kumaran filed appeal before the Government. The petitioner had also preferred Ext.P6 revision petition dated 11.1.1999 before the Government against Ext.P5. While so, the said Lakshmi and Prasanna filed O.P.No.12882 of 1999 before this Court and it was disposed of with a direction to the Government to dispose of the appeal preferred by the aforesaid Lakshmi and Prasanna within two months from the date of receipt of copy of the said judgment. The operation of Ext.P5 order was stayed till such time. Thereupon, a review petition viz., R.P.No.203 of 1999 was filed by the WP(C).No.28243/2003 4 petitioner in O.P.No.12882 of 1999. As per Ext.P7, that review petition was allowed and this Court cancelled that part of the judgment staying operation of Ext.P5 order viz., Ext.P4 therein. It is contended that, in the said circumstances, by virtue of Exts.P5 and P7 orders the petitioner continued as the Manager of the school even after the expiry of the period of one year. Subsequently, Government have dismissed both the appeal and the revision petition, filed against Ext.P5 order of the second respondent. The contention of the petitioner is that her predecessor Cheriyamma was having absolute ownership over the school and as well on the appurtenant land and only the management of the school and correspondentship were shared with the brothers of her husband for the smooth functioning of the school. According to the petitioner, each of them were given one third of the balance of the maintenance grant received after meeting the expenses towards payment of teachers' salary and maintenance of the school, only as a remuneration. After the coming into force of Kerala Education Act (for short `the Act') and the KER with effect from 1.6.1959 and by virtue of section 9 thereunder the liability for payment of salary lies with the Government and therefore, the grant is now utilised solely for the purpose of maintenance of the school. That apart, it is her contention that in terms of the Kerala Education Act and the Rules owner of a school is its educational agency and the Manager of WP(C).No.28243/2003 5 the school is one appointed by its owner/the educational agency. In that view of the matter, the petitioner assails Ext.P8 to the extent it found the legal representatives of deceased Ramar and Kunhikrishnan entitled to have two third right of management over the school as being wholly illegal. It is further contended that taking note of the directions in Ext.P8 Government order the petitioner attempted to see whether a workable scheme could be evolved with the consent of the concerned parties. However, the legal representatives of Kunhikrishnan and Ramar were not able to choose from among themselves their representatives. In the circumstances, the petitioner has every right to appoint a Manager of her choice, it is contended. It is very difficult to have an amicable scheme formulated for the management of the school with the consent of the legal representatives of the said Kunhikrishnan and Ramar and if their legal heirs got any dispute over the ownership over the school and the appurtenant land they have to establish the same in a competent civil court, it is submitted. In the meanwhile, the one year period for which the petitioner was appointed as the Manager of the school had elapsed on 23.11.1999 and despite the expiry of the said period the petitioner continued as its Manager for all practical purposes, it is contended. While so, a vacancy of LPSA occurred in 2002 in the school consequent to the promotion of Sri.P.Vijayan as its Headmaster against the vacancy WP(C).No.28243/2003 6 occurred on account of the retirement on superannuation of the then Headmaster of the school. Against that vacancy one Keerthi.R.K. was appointed as the LPSA with effect from 5.6.2002. Thereupon, the appointment order was forwarded to the fourth respondent for approval in terms of the provisions under the KER. However, the fourth respondent declined to approve the same as per Ext.P9 stating that this Court as per order C.M.P.No.47178 of 1999 in O.P.No.27802 of 1999 issued a direction that appointment made by the writ petitioner herein should not be approved until further orders. The said original petition was filed by the widows of Ramar and Kumaran. The petitioner got impleaded as a party to that original petition and ultimately the said original petition was dismissed as infructuous based on the submission by the learned counsel for the petitioner and consequently the C.M.P. mentioned above was also dismissed by this Court. Ext.P10 is the judgment in the said original petition. Though the petitioner had forwarded Ext.P10 judgment carrying the dismissal of the original petition and C.M.P.No.47178 of 1999 for the purpose of getting approval of the appointment of Keerthi R.K. the said request was rejected on the ground that the period for which her appointment as the Manager of the school was permitted to be continued by the Government as per Ext.P8, had expired. Thereupon, the petitioner preferred an appeal against that WP(C).No.28243/2003 7 order of the AEO but, the same was dismissed. A further appeal preferred before the second respondent was dismissed as per Ext.P11 order dated 15.7.2003. The contention of the petitioner is that prior permission as mentioned in Ext.P12 which is a letter dated 14.3.2003 of the AEO to the second respondent, was absolutely unnecessary for filling up a retirement vacancy. The fourth respondent, AEO issued Ext.P13 notice to the petitioner requiring her to prepare and submit a scheme of administration for approval and she was cautioned that in case of her failure to submit the same within three months from the date of receipt of the same the matter would be taken up before the higher authorities for taking appropriate action as contemplated under Rule 7 Chapter III of KER. It is contended that the finding of the Government in Ext.P8 that the legal representatives of the deceased Kunhikrishnan and Ramar also got 1/3 right each, over management along with the petitioner is unsustainable. It is further contended that the petitioner is the absolute owner of the school as also the land appurtenant to it and Ext.P2 agreement would not create any heritable right and in view of section 9 of the Kerala Education Act in respect of the legal representatives of Kunhikrishnan and Ramar. The school belongs to the owner viz., the petitioner who constitutes the educational agency and therefore, the petitioner alone has the right to appoint the Manager for the school. WP(C).No.28243/2003 8 Further, it is contended that Government should have allowed the petitioner to continue as Manager of the school until the party respondents establish their rights, if any, before a competent civil court. Being the owner as also defacto Manager the Educational authorities ought to have approved the appointment of Keerthy.R.K. as LPSA. Refusal to approve her appointment as LPSA is wholly illegal. It is with these averments and contentions that this writ petition has been filed mainly with the prayers to call for the records leading to Exts.P5, P8, P9, P10 and P11 orders and Ext.P13 notice and to quash them by issuing a writ in the nature of certiorari and to issue a writ in the nature of mandamus commanding the respondents to approve the appointment of the petitioner as the Manager of the school. The following reliefs are also sought for:-
"(b) issue an interim order of stay of all further proceedings pursuant to Ext.P13 until the disposal of the above W.P.
(d) in the alternative issue a writ in the nature of mandamus directing the respondents to atleast recognise the petitioner as the Manager of the School until the respondents established their rights over the management of the School in a Civil Court;
(e) issue a writ in the nature of mandamus directing the respondents to approve the appointment of Keerthi.R.K. as L.P.S.A. in the School with effect from 5.6.2002."
WP(C).No.28243/2003 9
3. Though notice has been ordered as early as on 2.9.2003, all the respondents have not chosen to enter appearance. The learned Government Pleader took notice on behalf of respondents 1 to 4. Respondents 6, 7 and 10 to 14 entered appearance. The petitioner sought to delete the names of respondents 8, 9 and 15 and accordingly their names were deleted from the party array.
4. I have heard the learned counsel for the petitioner and the learned counsel for the party respondents who have chosen to enter appearance as also the learned Government Pleader.
5. At the very outset, it is to be noted that the petitioner has taken up a contention that right of management cannot exist without any right to ownership over the school. In view of the specific provisions under the Kerala Education Act, I am afraid, such a contention cannot be sustained. The right of management of a school can independently exist without any right of ownership over the school. In a school where a Manager is appointed necessarily its management has to be vested with that Manager and still its ownership will not vest with that Manager. In this case, it is evident from the pleadings of the petitioner that even while the right of management of the school was vested with three WP(C).No.28243/2003 10 persons viz., predecessors of the petitioner and the party respondents namely, Cheriyamma, Kunhikrishnan and Ramar, Ramar had functioned as the Manager and correspondent of the school only for smooth functioning of the school. That apart, even while claiming absolute ownership over the school and the appurtenant land in paragraph 8 of the writ petition the petitioner claims that she alone is having the right to appoint a Manager. The further contention of the petitioner that the rights under Ext.P2 are not heritable also cannot be sustained, prima facie, in view of the tenor of the pleadings of the petitioner. If it is not heritable, under what circumstances the petitioner concedes two third right in the management of the school to the party respondents. It is also evident from the pleadings of the petitioner that without showing any demur to the specific direction of the respondents calling the petitioner to prepare and submit a scheme of administration for approval of the competent authority, the petitioner had in fact, admittedly, attempted to prepare such a workable scheme with the consent of the parties concerned. Even according to her averments in paragraph 5 of the writ petition her endeavour in that regard could not fructify solely on account of the indecision on the part of the legal representatives of Kunhikrishnan and Ramar to choose their respective representatives from among them. The contention of the petitioner is that in view of WP(C).No.28243/2003 11 such disputes she is finding it extremely difficult to have an amicable scheme formulated for the management of the school with the agreement of the party respondents. It is thus obvious that but for such impediment on account of the alleged indecision the petitioner would have definitely framed a scheme for the management of the school for approval in terms of the directions of the educational authorities. When that be the specific contention of the petitioner I am at a loss to understand how the petitioner could legally raise grievances against the directions of the Educational authorities requiring the petitioner to prepare and submit a scheme of administration for approval of the competent authority. There is no case at all for the petitioner that the direction to prepare a scheme for administration of the school and forward it for approval violates any of the provisions under the Kerala Education Act and the Rules. In fact, there is no such case for the petitioner as also to the party respondents. True that, the petitioner is having a contention that the rights under Ext.P2 are not heritable. In the partition deed No.797 dated 3.4.1993 referred earlier, with respect to allotment made to the petitioner it is stated thus:-
"I kY]Wp]Rs y~>OU Af]Rs v}aV, W]erV, yVWP% IaOUV oOfsLpfOU yVWP% oLSj^VRo# ]R# oPP]$ KSqLzq] pOU ..........."
(emphasis supplied) WP(C).No.28243/2003 12 The party respondents who have entered appearance have not chosen to file any counter affidavit refuting the claim of ownership of the petitioner over the school and the appurtenant land. But, at the same time, it is evident that the petitioner herself filed petitions before this Court for deleting the names of certain respondents who are admittedly the legal representatives of either Kunhikrishnan or Ramar and obviously at the risk of the petitioner the names of such persons were deleted from the array of parties. When that be the case, the petitioner cannot contend that there is absolutely no challenge against her ownership over the school as also the appurtenant land. Even according to the petitioner, such rights, if any, could be established in a properly instituted suit before a competent civil court. Therefore, in view of the very contentions of the petitioner as also the settled position of law, the ownership of the property cannot be decided by this Court in this proceedings. It is a matter which is to be decided by the competent civil court in a properly instituted suit. In this context, it is to be noted that in Ext.P8 also what was held is in tune with the said settled position. It is stated thus therein:-
"The question of real ownership and a final determination of the same in so far as they amount to recognition of WP(C).No.28243/2003 13 civil rights are obviously out of bounds for D.P.I. and to Government."
At the same time, the impasse over the management cannot be indefinitely remained as unresolved. In the decision in Mar Theophilus v. State of kerala reported in 1986 KLT SN 57 (Case No.93) this Court held as follows:-
"After all, what is important is that there should be someone to function as Manager under the control of the Educational authorities; and that that someone should be one chosen by a person who is prima facie at least, the owner of the institution."
But, at the same time, in view of the decision referred above, there cannot be any vacuum in the post of Manager of a school. The Manager of a school has varied functions to discharge. A dispute over the management cannot affect any of the rights of the appointees to various posts under the school and it shall not be permitted to affect the smooth functioning of the school as it may ultimately prejudice the prospects of the students community. Therefore, it is imperative that there should be someone in the post of Manager under the control of the Educational authorities. The question whether the Educational authorities have to take up that responsibility temporarily, would arise only in the case of an WP(C).No.28243/2003 14 absolute impossibility to find out someone from among the claimants for the management of the school to be entrusted to function as Manager of the school. In this case, admittedly, for a period of one year the DPI allowed the petitioner to function as Manager of the school. That was not virtually interfered with by the Government while passing Ext.P8. However, the permission was given to the petitioner to function as the Manager of the school only for one year and she was required to prepare and submit a scheme of administration of the school within one year. Evidently, such instructions were issued more than a decade ago. The position is that even now the impasse continue and no scheme of administration was prepared and submitted for the approval of the authorities. Such a situation cannot go on indefinitely. Going by the provisions under Rule 7 of Chapter III of KER the person who is functioning as the Manager of a school could be saddled with the liability for failure to comply with the lawful directions. As noted earlier, even according to the petitioner, based on the specific directions from the authorities she had attempted to prepare and submit a scheme for administration for approval of the Educational authorities. Merely contending that the other legal heirs are not co-operating for formulating such a scheme on consensus the requirement to submit such a scheme cannot be dispensed with especially in the light of the dispute over the WP(C).No.28243/2003 15 ownership and management amongst the legal heirs of the parties to Ext.P2 namely, Cheriyamma, Kunhikrishnan and Ramar. The alleged impossibility created solely on account of the dispute amongst the legal heirs of the parties to Ext.P2 cannot be a reason for waiving the mandatory requirements under the Act and the Rules. At the same time, as held by this Court in the interim order dated 16.3.2004 in I.A.No.3411 of 2004 that cannot be a reason for non-approval of the appointments of the teachers or such other staff provided, the intimation with respect to such appointments effected were forwarded in time and such appointments made were otherwise in order. Therefore, the authorities shall consider the question regarding the approval of appointments effected by the petitioner treating her as the defacto Manager and approve their appointments if such appointments were forwarded for approval at the appropriate time in terms of the provisions of the Act and the Rules and the appointments are otherwise in order. The parties are at liberty to take up the question of ownership over the school and the property on which it situates, in accordance with law, in case they have any such dispute regarding the ownership claimed by the petitioner over the school and the property. The petitioner and the party respondents will have three months time from today to prepare and submit a scheme of administration for approval of the authorities as required by them as WP(C).No.28243/2003 16 per Exts.P8 and P13 to avoid any functional disturbance in the school on account of the uncertainty over the post of Manager of the school. The petitioner shall be permitted to continue to function as the Manager till the end of this academic year and in the meanwhile, within the above stipulated time, the parties shall prepare and submit a scheme of administration for approval of the competent Educational authority and upon its receipt the question of its approval shall be taken expeditiously, in accordance with law. In case of failure of the parties, including the petitioner, to comply with the said requirement, it will be open to the Educational authorities to proceed further in accordance with law. During this period the petitioner shall not effect any fresh appointments.
The writ petition is disposed of accordingly.
Sd/-
C.T.RAVIKUMAR Judge TKS