Kerala High Court
P.R.Pavithran(Pallikadavil ... vs State Of Kerala
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
WEDNESDAY, THE 16TH DAY OF JULY 2014/25TH ASHADHA, 1936
WP(C).No. 22756 of 2010 (T)
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PETITIONER :
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P.R.PAVITHRAN(PALLIKADAVIL PAVITHRAN),
BIJU GARDEN, LAJNATH WARD, ALAPPUZHA.
BY ADV. SRI.GEORGE POONTHOTTAM
RESPONDENT(S):
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1. STATE OF KERALA, REPRESENTED BY THE
SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL
EDUCATION, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM.
2. THE DIRECTOR OF PUBLIC INSTRUCTIONS,
THIRUVANANTHAPURAM.
3. THE DEPUTY DIRECTOR OF EDUCATION, IDUKKI.
4. THE DISTRICT EDUCATIONAL OFFICER,
THODUPUZHA.
5. THE DISTRICT COLLECTOR, IDUKKI.
*ADDL.R6 & ADDL.R7 IMPLEADED
*R6: MANESH.P. KUMAR, S/O.LATE P.N.KUMARAN,
RESIDING AT PULIMOOTTIL HOUSE, VANNAPPURAM.P.O.,
THODUPUZHA, IDUKKI-685 607
*R7: P.K.LALITHAMANI, W/O.LATE P.N.KUMARAN,
PULIMOOTTIL HOUSE, VANNAPURAM.P.O., THODUPUZHA,
IDUKKI DISTRICT.
*ADDL.R6 AND ADDL.R7 ARE IMPLEADED AS PER ORDER DATED 31/8/10
IN I.A.NO.11297/10 & 11555/10
*ADDL.R8 TO R10 IMPLEADED
*R8: P.PADMAJA DEVI, W/O.T.P.RAJENDRA KUMAR,
AGED 39 YEARS, UPPER PRIMARY SCHOOL ASSISTANT,
S.N.M. V.H.S. SCHOOL, VANNAPPURAM, THODUPUZHA.
sts 2/-
-2-
WP(C).NO.22756/2010
*R9: GINCY M. CHELAPUZHAYIL, W/O.DENNY GEORGE,
AGED 29 YEARS, LOWER PRIMARY SCHOOL ASSISTANT
S.N.M. V.H.S. SCHOOL, VANNAPPURAM, THODUPUZHA.
*R10: M.G.PREETHY, D/O.M.K.GOPALAN, AGED 24 YEARS,
UPPER PRIMARY SCHOOL ASSISTANT, -DO-
*ARE IMPLEADED AS ADDL.RESPONDENTS 8 TO 10 AS PER ORDER DATED
12/11/10 IN IA.NO.15449/10.
R1 TO R5 BY GOVERNMENT PLEADER SRI.T.R.RAJESH
ADDL.R6 BY ADVS. SRI.T.C.SURESH MENON
SRI.JIBU P THOMAS
SRI.P.S.APPU
SRI.C.A.ANOOP
ADDL.R7 BY ADV.SRI.P.K.SURESH KUMAR
SMT.N.N.PRASEEDA
ADDL.R8 TO 10 BY ADV. SRI.V.A.MUHAMMED
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 16-07-2014, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
sts
WP(C).NO.22756/2010
APPENDIX
PETITIONER'S EXHIBITS:
P1 COPY OF THE NOTIFICATION NO.1381 DATED 17/6/2010
P2 COPY OF THE G.O.NO.2998/2010/G.EDN DATED 9/7/2010
P3 COPY OF THE APPLICATION DATED 15/6/2009 TO THE DPI WITH
ENCLOSURES
P4 COPY OF THE COMPLAINT DATED 03/4/2009 GIVEN BY P.K.LALITHAMANI.
P5 COPY OF THE COMMUNICATION NO.E.C.2/24246/09/DPI/L.DIS DATED 2/7/2009
P6 COPY OF THE REMINDER DATED 18/12/2009 GIVEN BY THE PETITIONER.
P7 COPY OF THE ORDER NO.VI/21581/2009/DPI DATED 23/1/2010
P8 COPY OF THE JUDGMENT IN WP(C).NO.5752/2010 DATED 21/5/2010
P9 COPY OF THE FITNESS CERTIFICATE ISSUED ON 29/5/2010
P10 COPY OF THE ELECTRICITY BILL DATED 14/6/2010 FOR RS.3125/-
P10(A) COPY OF THE ELECTRICITY BILL DATED 15/6/2010 FOR RS.2134/-
P11 COPY OF THE ORDER NO.B2/2650/10 DATED 11/5/2010
RESPONDENT'S EXHIBITS:
(I.A.NO.11297/2010) R6(A) COPY OF THE WILL DATED 8/10/2003
(I.A.NO.11297/2010) R6(B) COPY OF THE PROCEEDINGS DATED 12/11/2009
(I.A.NO.11297/2010) R6(C) COPY OF THE AMENDED PLAINT DATED 23/6/2009
(I.A.NO.15449/2010) R6(A) COPY OF THE INTERIM ORDER OF THIS HON'BLE
COURT IN IA.NO.7893/2010 IN WP(C).NO.22044/2009-A
DATED 29/06/2010
(I.A.NO.15449/2010) R6(B) COPY OF THE -DO- IN I.A.NO.10290/2010 IN WP(C).
NO.22044/2009-A DATED 06/09/2010
(I.A.NO.15449/2010) R6(C) COPY OF THE ORDER NO.B2/5356/09 OF THE DISTRICT
EDUCATIONAL OFFICER DATED 13/10/2010
R7(A) COPY OF THE AFFIDAVIT DATED 4/9/2009 OF ONE BINEESH LAL.
R7(B) COPY OF THE AFFIDAVIT DATED 4/9/2009 OF ONE M.S.ANIL
/TRUE COPY/
sts P.A.TO.JUDGE
'C.R.'
P.D. RAJAN, J.
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W.P (C) No.22756 of 2010
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Dated this the 16th day of July, 2014
JUDGMENT
The question under challenge is whether the Government can take over the management of Vannappuram SNMVHS School in the interest of the pupil under S.14(2) of the Kerala Education Act 1958? The writ petitioner is the grandfather of the minor Manu Manoj, who is the present Manager of S.N.M. Vocational Higher Secondary School, Vannappuram according to a Will. The writ petitioner challenges Ext.P1 notification dated 17.6.2010 issued by the Secretary, Government of Kerala and consequential order dated 9.7.2010 of the Additional Secretary, General Education, Thiruvananthapuram under Article 226 of the Constitution of India.
2. The Vannappuram S.N.M. Vocational High W.P.(C)No.22756/10 2 Secondary School is an aided school and its manager was late P.N. Kumaran until his death on 12.3.2009. He had two sons and a daughter and his wife was a teacher, who later became the Headmistress of the said school. In the year 2003, Kumaran had executed a Will 94/03 of the Sub Registrar's Office, Karikode and as per that Will, the property, in which the school located, was given to his elder son Manoj and the wife of Kumaran will succeed as the Manager. That Will was revoked and thereafter a second Will was executed, in which all the three children are to succeed as Managers. However that Will was also cancelled and a third Will was executed on 31.8.2007 in which his grandson Master Manu Manoj, (minor) was named as the Manager of the school. Since Manu Manoj being a minor, the petitioner was represented as the Manager of the School until Master Manu Manoj W.P.(C)No.22756/10 3 become major. After the death of Sri. P.N. Kumaran, there arose a dispute among the legal heirs of the deceased Manager with regard to the management of the school. Since the administration of the School became difficult, the Government issued Ext.P1 notification u/s.14 (2) of the Kerala Education Act, 1958, (hereinafter referred to as the 'Act'), on 17.6.2010 to take over the management of the School. The petitioner urged that the reason for issuing Ext.P1 notification was not specifically mentioned and without existence of any reason provided u/s.14(2) of the K.E. Act, Ext.P2 order was issued.
3. The respondents in their counter submitted that there was a dispute with regard to the management of the school. After the death of former manager, late P.N. Kumaran, several cases were filed by the legal heirs about the validity of a Will executed by the former manager. W.P.(C)No.22756/10 4 Besides this, there was serious allegations against Sri. Manesh P. Kumar, who is a Vocational Teacher in that school and one of the managers as per the Will. Ultimately, Sri. Manesh P. Kumar was suspended from service due to his misbehaviour towards staff and students. It was not possible for the management to maintain strict discipline in the School. Therefore, for the welfare of the students, the Government issued Ext.P1 notification u/s.14(2) of the K.E. Act. The basic necessities of the students were not redressed by the management in the absence of a Manager. In that situation, several letters were sent to the DPI by the PTA, finally, after discussing with DPI, the Government issued Ext.P1 Gazette notification. The 6th respondent also took similar contentions in their counter affidavit.
4. The learned counsel for the petitioner W.P.(C)No.22756/10 5 contended that the exercise of power under sub-section (2) of Section 14 of the Act is subject to the existence of the circumstances provided in sub-section (1) of Section 14 of the Act and therefore without the existence of circumstances as required under Section 14(1) of the Act an order under sub-section (2) of Section 14 of the Act is bad. Ext.P1 was issued in violation of the principles of natural justice and therefore, the said notification is bad in law. From a reading of Explanatory Note of Ext.P1, it is found that the exercise of power is not in tune with the requirements of law, which are required to exist for the purpose of taking over management of aided school as provided under Section 14(2) of the Kerala Education Act and therefore, Exts.P1 and P2 are bad in law.
5. The power to take over the management of the school is mentioned u/s.14 of the Kerala Education Act, W.P.(C)No.22756/10 6 1958, which reads as follows:
"14. Taking over management of schools.-
(1) Whenever it appears to the Government that the manager of any aided school has neglected to perform any of the duties imposed by or under this Act or the rules made thereunder, and that in the public interest it is necessary to take over the management of the school for a period not exceeding five years, they may, after giving the manager and the educational agency, if any, a reasonable opportunity for showing cause against the proposed action and after considering the cause, if any, shown, do so, if satisfied that such taking over for the period is necessary in the public interest.
(2) In cases of emergency, where the Government are satisfied that such a course is necessary in the interests of the pupils of the school, they may, without any notice under sub-section (1) to the manager or the educational agency, take over the management of any school after the publication of a notification to that effect in the Gazette.
(3) Where any school has been taken over under sub-section (2) the educational agency or the manager of the school within three months of the publication of the notification under the said sub section, may apply to the Government for the restoration of the school showing the post therefore, and where the Government are satisfied of the cause so shown, they shall W.P.(C)No.22756/10 7 restore the school.
4. The Government may also make such further orders as may appear to them to be necessary or expedient in connection with the taking over of the management of any aided school under this Section.
6. Sub sections (1) to (4) of S.14 of the Kerala Education Act explain the grounds for taking over management of schools. S.14(1) says that it must appear to the government that (1) the manager of the school has neglected to perform any of the duties imposed by or under the act or rules made thereunder.
(2) In the public interest it is necessary to take over the management of the school for a period not exceeding five years.
(3) A reasonable opportunity for show cause shall be given to the manager and the educational agency against the W.P.(C)No.22756/10 8 proposed action.
(4) After considering the cause, if any shown, Government if satisfied that such taking over is necessary in the public interest, it shall take over the management of schools. The right to conduct a school is guaranteed in the Kerala Education Act 1958 and Rules. Accordingly, the educational agency and the manager have vested with specific statutory powers under the Act and Rules, for running their institutions. Therefore, an interference by the Government under S.14(1) is possible only after following the above procedures mentioned therein and after satisfying first two conditions that is manager neglected to perform the duties under the Act and Rules and in the public interest. Absence of any one of the conditions would invalidate the order issued u/s.14(1). The two conditions in S.14(1) shall be considered conjointly and W.P.(C)No.22756/10 9 not one after another, by the Government. For the above act of taking over the management of the school, the first and foremost thing to be done is that the Government have to issue show cause notice which is mandatory under S.14 (1). In the absence of any show cause notice the proceeding issued u/s.14(1) by the Government would be vitiated.
7. The conditions u/s.14(1) has been explained by this Court in usman Kurikkal O.V. v. State of Kerala and others [2011 (3) ILR 120] as follows: (para17) "17. In order to attract Section 14(1) of the Act, the following conditions must be satisfied. (1) It must appear to the Government that the manager of the school has neglected to perform any of the duties imposed by or under the Act or the Rules made thereunder; and (2) In the public interest it is necessary to take over the management of the school. (3) A reasonable opportunity for showing cause against the proposed action shall be given to the manager and the educational W.P.(C)No.22756/10 10 agency; (4) After considering the cause, if any, shown, the Government must be satisfied that such a taking over is necessary in the public interest.
Conditions (1) and (2) are not alternative, but cumulative. Absence of any of the above conditions would vitiate the order passed under Section 14(1) of the Act.
The educational agency has the right to run the school. The manger has specified powers under the Act and Rules. The right to run an aided school can be interfered with only if the conditions under Section 14(1) of the Act are satisfied. Such a right which the educational agency and the manager possesses, cannot be deprived by exercising the power under Section 14(1) or 14(2) of the Act on the mere whims and facies of the Government. Taking over the management of an aided school is aimed at the proper running of the school in accordance with the Act and Rules. Public interest and welfare of the students and welfare of the students and teachers are also important in exercising the jurisdiction under sub-section (1) of Section 14 of the Act. In the present case, Ext.P1 order does not indicate that the conditions under Section 14(1) are attracted. Only because there are two rival claimants for managership, the power under Section 14(1) of the Act cannot be exercised. The dispute between two persons or among some persons who W.P.(C)No.22756/10 11 constitute the educational agency, for managership, by itself does not constitute a complete and exhaustive reason for taking over the management of the school, in the absence of the existence of the ingredients under Section 14(1) of the Act. Section 14(1) is not intended to deal with the disputes between two or more parties fro managership, but it is intended for a larger purpose and to achieve a wider object.
In the above decision, the learned single Judge of this Court held that conditions 1 and 2 of S.14(1) are not alternative, but cumulative. There is no disagreement to that aspect, hence absence of any one of the conditions would vitiate the order passed under Section 14(1) of the Act.
8. The scope of this Section was explained in an earlier decision Subramoniam v. State of Kerala and another [1986 KLT 359], which was approved in usman Kurikkal O.V.'s case (supra), in which it is held as follows: W.P.(C)No.22756/10 12
"6. It is clear that for the above provisions to operate, the following conditions, among others should be satisfied;
(i) there should be something to suggest that the manager has neglected to perform any of his duties under the Act or the Rules.
(ii) he should be given a reasonable opportunity to show cause against the proposed take-over.
(iii) the cause, when shown, should be considered by the Government before the final decision is taken.
This view was followed in another decision in PTA v. State of Kerala [2000 (1) KLT 804]. The educational agency has the right to run the school and the management has specific powers under the Act and Rules, and the above procedures are to be complied before invoking S.14(1).
9. But, in cases of emergency, u/s.14(2) of the Kreala Education Act 1958, where the Government is satisfied that such a course is necessary in the interest of the pupils of the school, without any notice under sub- section (1) to the manager or the educational agency, they W.P.(C)No.22756/10 13 may, take over management of any school after publication of a notification to that effect in the official Gazette. The main grounds under Sec.14(2) are as follows:
(1) Government are satisfied that an emergency situation exist in the school.
(2) Such a course is necessary in the interest of the pupils of the school.
(3) Without any notice under sub section (1) to the manager or the educational agency (4) take over the management of the school after the publication of a notification to that effect in the gazette.
A close perusal of S.14(2) explains the special power given to the Government in case of emergency. Ext.P1 notification reads as follows:
"KERALA GAZETTE EXTRAORDINARY Published authority W.P.(C)No.22756/10 14 ___________________________________________________________ Vol.LV Thiruvananthapuram, 17th June 2010 ___________________________________________________________ GOVERNMENT OF KERALA NOTIFICATION NO.1381 G.O.(P)No.93/2010/G..Edn. Dated, Thiruvananthapuram, 8th June 2010. ___________________________________________________________ S.R.O.No.585/2010.- Whereas, the Government of Kerala are satisfied that in the interest of the pupils of the S.N.M. Vocational Higher Secondary School, Vannappuram in Vannappuram Village, Thodupuzha Taluk, it is necessary to takeover the management of the said school. Now, therefore, in respect of the powers conferred by sub-section (2) of Section 14 of the Kerala Education act, 1958(6 of 1959) it is hereby notified that the management of the said school shall be taken over by the Government of Kerala for period of five years with immediate effect.
By order of the Governor JAMES VARGHESE SECRETARY TO GOVERNMENT Explanatory Note (This does not form part of the notification, but is intended to indicate its general purpose) The Director of Public Instruction has reported that there is no approved manager for the S.N.M. Vocational Higher Secondary School, Vannappuram in Vannappuram Village, Thodupuzha Taluk and there is dispute among the legal heirs of the deceased manager on the authenticity of the Will Deed said to have been executed by the deceased Manager before his death. In the circumstance in order to ensure the smooth functioning of the school and to protect the interest of the staff and the students, Government have decided to take over the management of the said school for a period of five years.
The notification is intended to achieve the above objective."W.P.(C)No.22756/10 15
As per Ext.P1 notification, Ext.P2 order was passed by the Government and entrusted the institution to the DEO, Thodupuzha.
10. From the aforesaid discussion, it is clear that Ext.P1 notification is necessary before taking over the management of the school u/s.14(2). Ext.P1 notification was published in the Kerala Gazette Extraordinary as per G.O(P)No.93/2010/G.Edn. Dated 8.6.2010. The Act says that for taking over the management of any school by the Government, it shall be done only after the publication of a notification to that effect in the Gazettee. Accordingly, the Gazette publication was made on 17.6.2010, which amounts to the compliance of the direction u/s.14(2) of the Act.
11. It is found that in terms of the stipulations in the Will executed on 31-8-2007, an application was given W.P.(C)No.22756/10 16 with all documents to the 2nd respondent, through the office of the 4th respondent, for change of Management in favour of the petitioner. The copy of the application given, with the set of papers enclosed, has been produced and marked as Exhibit-P3. But the wife of late Kumaran Smt. P.K. Lalithamani had given Ext.P4 complaint objecting the transfer of management in favour of the petitioner even before filing Ext.P3. Ext.P4 was considered and rejected by the 2nd respondent by Ext.P5 communication dated 2-7-2009. Even after giving Ext.P3 no decision was taken by the 2nd respondent which compelled the petitioner to file Ext.P6 reminder. As per Ext.P7, the request for changing the management was rejected by Additional Director on the basis of the report of Deputy Director of Education. Consequently ExtP8 direction was given in W.P.(C)No.5752/2010. However, Ext.P9 fitness certificate W.P.(C)No.22756/10 17 has been issued by Assistant Engineer LSGD, Vannappuram in which it is certified that the structure is sound under weather condition. Petitioner paid the electricity bills, which is produced as Exts.P10 andP10(a) in this petition. Smt. Pushpalatha was appointed as the in-charge of the school as per Ext.P11 order of the DEO, Thodupuzha.
12. Here, in the case of SNM/VHS, Vannappuram, after the death of the former manager, there was no approved manager, and there were disputes among the legal heirs. In the absence of an approved manager, the school faces several difficulties in its smooth functioning. Even the basic necessities for the students and staff were not provided, which warranted Government intervention for the smooth functioning of the school. Though Section 14 (2) of the K.E. Act does not provide for serving notice to the management or educational agency, there was no other W.P.(C)No.22756/10 18 way to the Government to take action in case of emergency under Section 14(2) of the Act. Therefore in the interest of the students and staff of the school, Government, under Section 14(2) of the KE Act, have taken over the management of the school temporarily for a period of five years. In the above circumstances none of the grounds raised in the WP(C) are tenable in the eye of law. Therefore, the writ petition is devoid of any merits and is liable to be dismissed. The minor is the Manager of the school as per the third Will. But, petitioner has not produced any document to show that he is appointed as the guardian of minor. Therefore, he is not eligible to act as the guardian of the minor. Since, civil disputes are pending before Sub Court, Thodupuzha I am not making any observation with regard to the legal right of the parties. There is no merit in this writ petition and it is dismissed W.P.(C)No.22756/10 19 accordingly.
13. Accordingly, Ext.P2 order issued by the 1st respondent is upheld. The interim stay granted by this Court is vacated. The District Educational Officer, Thodupuzha is directed to take over the managership of the school with immediate effect.
P.D. RAJAN, JUDGE.
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