Kerala High Court
Peter N Chacko vs State Of Kerala
Author: A.M. Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
WEDNESDAY, THE 10TH DAY OF APRIL 2013/20TH CHAITHRA 1935
WP(C).No. 15726 of 2012 (M)
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PETITIONER(S):
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PETER N CHACKO
NEDUMATTATHIL HOUSE, CHETHIKODE P.O., KANJIRAMATTOM
ERNAKULAM DISTRICT - 682 315.
BY ADVS.SRI.K.JAJU BABU
SMT.M.U.VIJAYALAKSHMI
SRI.T.R.SADEESAN
SRI.T.S.SHYAM PRASANTH
RESPONDENT(S):
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1. STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT
GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT
THIRUVANANTHAPURAM, PIN - 695 001.
2. THE DIRECTOR OF PUBLIC INSTRUCTION,
JAGATHY, THIRUVANANTHAPURAM, PIN - 695 014.
3. THE DISTRICT EDUCATIONAL OFFICER,
ERNAKULAM - 682 011.
4. SRI.P.GEORGE VARGHESE,
ADVOCATE, PADIYAMALIL HOUSE, KANJIRAMATTOM P.O.
ERNAKULAM - 682 315.
5. ST.IGNATIUS ORTHODOX SYRIAN CHURCH,
KANJIRAMATTOM, ERNAKULAM - 682 315
REPRESENTED BY ITS VICAR FR.MATHEW PULIMOOTTIL
COR-EPISCOPA, RESIDING AT PULIMOOTTIL HOUSE
KANJIRAMATTOM P.O., ERNAKULAM - 682 315.
R1-R3 BY GOVERNMENT PLEADER SRI. R. PADMARAJ
R4 BY ADVS. SRI.N.RAGHURAJ
SMT.K.AMMINIKUTTY
R5 BY ADVS. SRI.S.SREEKUMAR (SR.)
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
10-04-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DCS
WP(C).No. 15726 of 2012 (M)
APPENDIX
PETITIONER'S EXHIBITS:-
EXT P1. COPY OF THE ORDER OF APPROVAL NO.K.DIS-G4-22255/73 DATED
10.10.73 ISSUED BY THE REGIONAL DEPUTY DIRECTOR OF PUBLIC
INSTRUCTION, ERNAKULAM.
EXT P2. COPY OF THE BYE-LAWS OF THE KANJIRAMATTOM ST.IGNATIUS
EDUCATIONAL AGENCY.
EXT P3. COPY OF THE MINUTES OF THE GENERAL BODY MEETING HELD ON
22.08.2010 BY ST.IGNATIUS ORTHODOX SYRIAN CHURCH.
EXT P4. COPY OF THE MINUTES DATED 22.08.2010 OF THE BY
ST.IGNATIUS ORTHODOX SYRIAN CHURCH, ELECTING THE
PETITIONER AS MANAGER.
EXT P5. COPY OF THE APPLICATION DATED 26.08.2010 SUBMITTED BY THE
5TH RESPONDENT TO THE DISTRICT EDUCATIONAL OFFICER.
EXT P6. COPY OF THE ORDER DATED 09.04.2010 IN W.P.(C)
NO.12791/2010 OF THIS HON'BLE COURT.
EXT P7. COPY OF THE PROCEEDINGS NO.B5/4851/10 DATED 21.04.2010
ISSUED BY THE 3RD RESPONDENT.
EXT P8. COPY OF THE PROCEEDINGS NO.B5/4851/10 DATED 10.05.2010
ISSUED BY THE 3RD RESPONDENT.
EXT P9. COPY OF THE ARGUMENT NOTE DATED 08.09.2010 SUBMITTED ON
BEHALF OF THE VICAR AND THE PETITIONER BEFORE THE 3RD
RESPONDENT.
EXT P10. COPY OF THE ORDER NO.B5/4851/10/K. DIS DATED 18.09.2010 OF
THE 3RD RESPONDENT.
EXT P11. COPY OF THE ORDER NO.EC3/72555/2010/DPI DATED 01/04/2011
OF THE 2ND RESPONDENT.
EXT P12. COPY OF THE REVISION PETITION DATED 01.06.2011 FILED BY
THE PETITIONER BEFORE THE 1ST RESPONDENT.
EXT P13. COPY OF THE JUDGMENT DATED 05.03.2012 IN W.P.(C)
NO.4795/2012 OF THIS HON'BLE COURT.
EXT P14. COPY OF THE GO(RT) NO.2002/12/G.EDN DATED 30.04.2012
ISSUED BY THE 1ST RESPONDENT.
DCS
WP(C).No. 15726 of 2012 (M)
EXT P15. COPY OF THE JUDGMENT DATED 12.11.2008 IN W.A.NO.2515/2007
OF THIS HON'BLE COURT.
EXT P16. COPY OF THE ORDER DATED 1.5.1997 ISSUED BY THE
METROPOLITAN APPOINTING THE 5TH RESPONDENT
AS THE VICAR OF THE CHURCH FROM 04.05.1997
EXT P17. COPY OF THE INTERIM ORDER DATED 20.08.2010 GRANTED BY THIS
HON'BLE COURT IN I.A. NO. 3177/2010 IN REGULAR FIRST APPEAL
NO. 546/2010
RESPONDENT'S EXHIBITS:-
EXT R4(a): COPY OF THE ORDER DATED 15.03.2010 IN C.R.P. NO. 315/2002
EXT R4(b): COPY OF THE JUDGMENT DATED 04.08.2010 IN O.S. NO. 2/1986
EXT R4(c): COPY OF THE JUDGMENT DATED 17.08.2010 IN W.P.(C). NO. 12791/2010
/TRUE COPY/
P.A. TO JUDGE
DCS
A.M. SHAFFIQUE, J
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W.P.(C). NO. 15726 of 2012
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Dated this the 10th day of April, 2013
JUDGMENT
The issue involved in the above writ petition arises out of approval of the 4th respondent as Manager by the educational authorities. The petitioner contends that by virtue of Ext. P7 and P8 orders the District Educational Officer had already rejected approval of the 4th respondent as Manager of the educational agency and therefore he had no power to pass a fresh orders by way of review as per Ext. P10. Consequently, the appellate order Ext. P11 and the order passed by the Government at Ext. P14 is bad in law. Reference is made to the judgment of Full Bench of this Court in Anilkumar v. State of Kerala [2009 (3) KLT 650], a decision of Supreme Court in Kalabharati Advertising v. Hemant Vimalnath Narichania [2010 (3) KLT 986 (SC)] and judgment of this Court in K.T. Plantations (P) Ltd. v. W.P.(C). NO. 15726 of 2012 2 State of Karnataka [2011(3) KLT SN 123 (C. No. 124) SC] in order to contend for the position that in the absence of a specific provision enabling the authority to exercise the power of review the said power cannot be exercised.
2. Counter affidavit is filed by the 4th respondent as well as the Department inter alia supporting the stand taken in Ext. P10, P11 and P14. According to the 4th respondent and the official respondents by Ext. P7 and P8, the District Educational Officer had only returned the documents submitted for approval, as in the meantime, according to the authority, the meeting by which a Committee was appointed to elect the Manager was stayed by an interim order of this Court and therefore the application was not considered on merits and was only returned for resubmission.
3. On a perusal of Ext. P7 and P8 would show that the DEO had not entertained the application for accepting the proposal for change of management, based on the election held on 11.04.2010, as it thought that interference W.P.(C). NO. 15726 of 2012 3 was not warranted at a time when the meeting was held by the educational agency when an interim order of stay was in force. But apparently as contended by the learned Government Pleader as well as the 4th respondent the proposal is seem to have been returned. Similar view is taken in Ext. P8 when a resubmission was made.
4. On this basis it is contended that it is not a case where an order has been passed by the authorities concerned whereas it was a case where the documents were returned for resubmission after appropriate orders were passed by the Court. The short question to be considered is whether the DEO has the power to reconsider the application for approval of the Manager after having issued Ext. P7 and P8. The Rule 4 of Chapter III of KER deals with the situation relating to approval of changes in personnels of Managers reads as under:-
4. Approval of appointment of Managers- (1) The Educational Officers shall be competent to approve the appointment of Managers by Educational Agencies and to approve changes in the personnel of W.P.(C). NO. 15726 of 2012 4 the Managers.
(2) If the Educational Agencies have schools in more than one Educational District within a Revenue District the appointment of managers and changes in the personnel of the managers may be approved by the Deputy Director (Education) having jurisdiction in the Revenue District. If the Educational Agencies have schools in more than one Revenue District the appointment of managers and changes in the personnel of the Managers may be approved by the Director of Public Instruction.
(2A) The approval of appointment of Managers and Changes in the personnel of the Managers under sub- rules (1), and (2) above shall take effect from the date of actual assumption of charge of the management specified in the order of approval issued by the competent authorities concerned. (3) Any person aggrieved by an order of the Educational Officer under sub-rule (1) or of the Deputy Director (Education) under sub-rule (2) may within 30 days from the date of receipt of the order prefer an appeal to the Director.
(4) Government may, on their own motion or otherwise, revise any order passed by the Director of Public Instruction.
5. On a perusal of Ext. P7 and P8, it is clear that the request of the educational agency to approve the 4th respondent as Manager was not approved whereas the W.P.(C). NO. 15726 of 2012 5 application had been returned. In other words no order had been passed by the District Educational Officer in terms of Rule 4(1) of Chapter III. If an order in terms of Rule 4(1) had been passed either approving the appointment of the 4th respondent as Manager or rejecting the approval, necessarily the contention urged by the petitioner could be justified. The fact that there was an interim order of stay was the reason for the educational officers not to consider the application for approving the Manager at the relevant point of time.
6. In that view of the matter I do not find any illegality on the part of the DEO to have considered a fresh application for appointment of the Manager. That apart appointment of the Manager is within the jurisdiction of the concerned educational agency and when the educational agency submits an application and it is rejected either it is open for the educational agency to rectify the defects in the appointment of Manager and re-submit or to challenge the proceedings of the DEO in terms with the Rules. W.P.(C). NO. 15726 of 2012 6 In this case it could be seen that the DEO has passed Ext. P10 order after the writ petition in which a stay was granted was dismissed by this Court. It is therefore clear that Ext. P7 and P8 were not orders passed in terms of Rule 4(1) of KER. That being the situation the petitioner is not entitled to seek any relief as prayed for and accordingly the writ petition is dismissed.
SD/-
A.M. SHAFFIQUE JUDGE DCS