Kerala High Court
P.K. Padmanabhan Nambiar vs Secretary To Govt., General Education ... on 11 September, 1997
Equivalent citations: AIR 1998 KERALA 59, ILR(KER) 1998 (1) KER 338, (1997) 2 KER LT 725, (1997) 2 KER LJ 507
Author: B.N. Patnaik
Bench: B.N. Patnaik
JUDGMENT Balakrishnan, J.
1. Four Original Petitions were disposed of by a common judgment and all these Writ Appeals arise from that common judgment. Therur U. P. School is a private aided school under the management of a society by name "Therur Educational Society". The Secretary of the Society is the Manager of the school. Election to the society was conducted in 1987 and one P. V. Govindan Nambiar claimed that he was elected as Secretary. But the appellant Padmanabhan Nambiar claimed that he was the person really elected as the Secretary of the Society. The election of Govindan Nambiar as Secretary was intimated to- the Assistant Educational Officer, Mattannur, who approved him as the Manager of the school. Padmanabhan Nambiar disputed the claim of Govindan Nambiar and filed an appeal and in the appeal it was held that the claim of the Manager will finally be decided on the basis of the suit filed by Govindan Nambiar for declaration of his right as Secretary of the Society. Meanwhile Govindan Nambiar filed a suit before the Munsiff's Court, Kuthuparamba as O. S. No. 266/88 for declaration of his right as Secretary of the Society and also for consequential injunction. The dispute between Govindan Nambiar and Padmanabhan Nambiar continued till O. S. No. 266/88 filed by Govindan Nambiar was dimissed on 30-11-1991. Govindan Nambiar filed an appeal which was dismissed by the Sub-Court, Thalassery. After the dismissal of the suit, Padmanabhan Nambiar approached the educational authorities that he shall be approved as the Manager of the school. From 18-3-1992 onwards Padmanabhan Nambiar was approved as the Manager of the school. On 2-1-1992 Govindan Nambiar, in his capacity as Manager of the school, appointed one Usha Sree-5th respondent in W. A. No. 255/97 as a Teacher. One Vanaja was also appointed by Govindan Nambiar on 6-1-92. The appointments of these two teachers were approved by the educational authorities. Padmanabhan Nambiar challenged the approval of the appointments of these two teachers alleging that Govindan Nambiar was incompetent to make any appointment and he was not the Manager of the school and the appointments made by such a Manager, being illegal, ought not to have been approved by the educational authorities. Government ultimately held that the appointments of these two teachers were liable to be approved and the revision filed by Padmanabhan Nambiar before the Government was dismissed.
2. The two teachers appointed by Govindan Nambiar were later thrown out of service for want of vacancies and they claimed protection under Rule 51-A in Chapter XIV-A of the Kerala Education Rules and sought appointment against future vacancies that had arisen. O. P. No. 14183 of 1995 and O. P. No. 591 of 1996 were filed by these teachers seeking directions to appoint them in the permanent vacancies. O. P. No. 17686/93 and O. P. No. 13495/94 were filed by Padmanabhan Nambiar against an order of approval passed by the Government. Learned single Judge held that the appointments of these two teachers by Govindan Nambiar were in accordance with the provisions of the Kerala Education Act and Rules and on retrenchment they were entitled to get protection under Rule 51-A of Chapter XIV-A of the K. E. R. The Government orders approving their temporary appointments were held to be valid. These four "Writ Appeals have been filed against the common judgment of the learned single Judge in the Original Petitions.
3. We heard Shri K. Ramakumar, learned counsel for the appellants, learned counsel who appeared for the contesting respondents and also learned Government Pleader. The contention urged by the appellants' counsel is that Govindan Nambiar was not validly elected as Secretary of the Co-operative Society under whose management the U. P. School is functioning and it was argued that Govindan Nambiar had no authority to act as Manager of the school and he was an usurper or intruder as the Manager and the appointments made by him were void. According to the appellants' counsel, the suit filed by Govindan Nambiar was dismissed on 30-11- 1991 and the appointments made by him on 2-1 -
1992 and 6-1-1992 were absolutely bad and, therefore, the educational authorities should not have extended approval to such appointments. Learned counsel for the respondents supported the Government Order.
3A. The Therur Educational Society was constituted in 1956. As per the bye-laws of the society, the Secretary of the Society has to act as Manager of the School. On 19-1 -1986 a General body meeting of the society was held and K. Govindan and P. K. Padmanabhan Nambiar were elected as President and Secretary respectively. The Assistant Educational Officer directed the earlier Secretary R. K. Karunakaran Nambiar to transfer the management in favour of Padmanabhan Nambiar. But Karunakaran Nambiar informed that on 24-7-87 another governing body was elected and through a no-confidence motion Padmanabhan Nambiar was removed and Padmanabhan Nambiar could not become the Manager of the School. Thus, a dispute arose as to who should act as the Manager of the school. Govindan Nambiar filed O. S. No. 266/88 for declaration of his right as Secretary of the Society and the suit was dismissed. He filed an appeal against that suit which was also dismissed by the Sub-Court, Thalassery. Meanwhile, the Assistant Educational Officer approved Govindan Nambiar as the Manager of the school. Padmanabhan Nambiar filed an appeal against such approval under Rule 3 in Chapter III of the K. E. R. It was held in that appeal that the dispute regarding managership shall be decided on the basis of the original suit filed by Govindan Nambiar before the Munsiff's Court, Kuthuparamba. Such a stand taken by the educational authorities is valid as it has been held by a Division Bench of this Court in A. Abdul Rahim v. State of Kerala, 1984 KLJ 700 : (AIR 1985 Ker 103) that the decision of the educational authorities are not meant to settle civil rights of the parties and the decision of the educational authorities regarding right of managements of the school is of summary in nature and the civil court iscompetent to decide such rights. After the dismissal of the suit filed by Govindan Nambiar, Padmanabhan Nambiar took steps to get himself approved as the Manager of the school and on 18-3-1992 Padmanabhan Nambiar was approved as the Manager of the school.
4. The facts stated above are relevant for the purpose of considering the question whether Govindan Nambiar was acting as de facto Manager or he was an usurper or intruder. If he was an usurper or intruder, his acts for all legal purpose could be treated as void. But if Govindan Nambiar was acting as ade facto Manager and his appointment was found defective only in some particulars it cannot be said that he was an usurper. His colour of right may come from an election or appointment made by a body having some right but not actual right to make it or made in such disregard of legal requirements as to be ineffectual in law. Here the Assistant Educational Officer by virtue of his power under Rule 4(1) in Chapter III of, the K. E. R. approved Govindan Nambiar as the Manager of the school. The decision to approve a person as Manager of the school is of summary in nature and the aggrieved party has to establish his right in civil litigation and Govindan Nambiar filed the suit, but he failed to establish his right. However, he continued as Manager till 17-3-1992.
5. In Cooley's "Constitutional Limitations", Eighth Edition, Volume II at page 1355, the following observations are made :
"An officer de facto is one who by some colour or right is in possession of an office and for the time being performs its duties with public acquiescence though having no right in fact. His colour of right may come from an election or appointment made by some officer or body having colourable but no actual right to make it; or made in such disregard of legal requirements as to be ineffectual in law; or made to fill the place of an officer illegally removed or made in favour of a party not having the legal qualifications; or it may come from public acquiescence in the qualifications or it may come from public acquiescence in the officer holding without performing the precedent conditions, or holding over under claim of right after his legal right has been terminated; or possibly from public acquiescence alone when ccompanied by such circumstances of official reputation as are calculated to induce people, without inquiry, to submit to or invoke official action on the supposition that the person claiming the office is what he assumes to be. An intruder is one who attempts to perform the duties of an office without any authority of law, and without the support of public acquiescence.
No one is under obligation to recognise or respect the acts of an intruder, and for all legal purpose they are absolutely void. But for the same order and regularity, and to prevent confusion in the conduct of public business and in security of private rights, the acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceedings instituted for the purpose by the State or by some one claiming the office de jure, or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the officer which he claims to be. In all other cases the acts of an officer de facto are as valid and effectual, while he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties. There is an important principle, which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned collaterally."
6. From the commentary on law it appears that if an officer has got colour or semblance of some right to hold office but holding office without actual right due to some legal impediment or the appointment as such lacks certain legal requirements whatever duties performed by him with public acquiescence have to be approved, whereas the action done by an intruder who attempts to perform duties without the authority of law and without the support of public" acquiescence cannot claim validity. Merely because, there was defect in the appointment of the officer all the duties performed by such officer do not become void or illegal. The de facto doctrine will come to rescue under such circumstances.
7. In Re, James (An Insolvent) (1977) 2 WLR 1, Lord Denning M. R., while discussing about the validity of an order passed by a Judge who was not validly appointed, it was observed thus (at p. 14):
"He sits in the seat of a Judge. He wears the robes of a Judge. He holds the office of a Judge, may be he was not validly appointed. But, still, he holds the office. It is the office that matters, not the incumbent..... his orders not a nullity. If they are erroneous they may be upset on appeal. But if not erroneous they should be upheld."
8. The de facto doctrine has been recognised by Indian Courts in a series of decisions. In Pulin Behari v. King Emperor (1912) 15 Cal LJ 517, Sir Asuthosh Mukerjee, J. made the following observation:
"The substance of the matter is that the de facto doctrine was introduced into the law as a matter of policy and necessity, to protect the interest of the public and the individual where these interests were involved in the official acts of persons exercising the duties of an office without being lawful officers. The doctrine in fact is necessary to maintain the supremacy of the law and to preserve peace and order in the community at large. Indeed, if any individual or body of individuals were permitted, at his or their pleasure, to collaterally challenge the authority of and to refuse obedience to the Government of the State and the numerous functionaries through whom it exercised its various powers on the ground of irregular existence or defective title, insubordination and disorder of the worst kind would be encouraged. For the good order and peace of society, their authority must be upheld until in some regular mode their title is directly investigated and determined."
9. In a decision reported in P. S. Menon v. State of Kerala, AIR 1970 Ker 165 : (1970 Lab IC 967) a Full Bench of the Kerala High Court spoke about the de facto doctrine, which reads (at page 170 of AIR):
'This doctrine was engrafted as a matter of policy and necessity to protect the interest of the public and individuals involved in the official acts of persons exercising the duty of an officer without actually being one in strict point of law. But although these officers are not officers de jure they are by virtue of the particular circumstances, officers, in fact, whose acts, public policy required should be considered valid".
10. In Gokaraju Rangaraju v. State of A. P., AIR 1981 SC 1473 : (1981 Cri LJ 876) the question whether the judgment pronounced by a Sessions Judge was invalid for the reason that the appointment of the Sessions Judge was found to be illegal as it was in violation of Art. 233 of the Constitution. The Court held (at page 1475 of AIR):
"The de facto 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".
11. In our opinion, the de facto doctrine can be suitably applied to the facts of the present case. Govindan Nambiar claimed that he was properly elected by the Society as Secretary and the previous Secretary handed over charge to him. The educational authorities by virtue of the powers conferred on them under Chapter III, Rule 4 approved Govindan Nambiar as the Manager of the school. An appeal was filed against this approval by Padmanabhan Nambiar. However, the approval was not set aside. Govindan Nambiar filed a suit before the Munsiff's Court, Koothuparamba for a declaration that he was the validly elected Secretary of the Society. The suit was dismissed and consequently Govindan Nambiar was removed from the Managership and Padmanabhan Nambiar was approved as the Manager of the school. The two appointments were made by Govindan Nambiar while he was acting as the Manager of the school. The appellant Padmanabhan Nambiar did not take any action to restrain Govindan Nambiar from discharging his official duties as Manager of the school. In the background of these facts it cannot be said that Govindan Nambiar was an intruder or usurper to the office of the Manager of the school. Admittedly, Govindan Nambiar was the de facto Manager of the school during the relevant time of appointment of two teachers. When the two teachers sought appointment they could only approach the then Manager of the School for appointment. Even if the approval of Govindan Nambiar as the Manager of the school was found to be invalid, whatever official duties discharged by him cannot be rendered as void. As observed by the Supreme Court the dc facto doctrine is born of necessity and public policy is to prevent needless confusion and endless mischief under these circumstances.
12. Moreover, it is pertinent to note that as regards the approval of these two teachers, application for approval of the appointment was jointly made by Govindan Nambiar and Padmanabhan Nambiar. This is stated in the order passed by the Government on 11-8-94. Nowhere in the Original Petition, this fact is refuted by the appellant. It is clear indication that appellant Padmanabhan Nambiar expressed his consent to the appointment of two teachers. For that reason also, appellant is not justified in challenging the order passed by the Government.
13. There is no basis for this Court to substitute a contrary conclusion and all the appeals are without any merit and they are dismissed, however, without costs.