IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 9636 of 2005(V)
1. V.P.JASEELA, W/O.ABDUL JALEEL,
... Petitioner
Vs
1. THE ASSISTANT EDUCATIONAL OFFICER,
... Respondent
2. THE MANAGER,
3. THE HEADMASTER,
4. P.BAVA HAJI, S/O.LATE ABDU HAJI,
5. K.ABUBACKER @ BAPPU,
For Petitioner :SRI.C.P.MOHAMMED NIAS
For Respondent :SRI.V.A.MUHAMMED
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :11/03/2009
O R D E R
HARUN-UL-RASHID,J.
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W.P.(C).NO.9636 OF 2005
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DATED THIS THE 11TH DAY OF MARCH, 2009
JUDGMENT
Petitioner is an Assistant Teacher in the M.M.L.P.
School. This writ petition is filed seeking to quash Exts.P2, P3 and
P4 and for a direction commanding the lst respondent to approve
the petitioner’s appointment as P.D. Teacher in the said school.
Petitioner is aggrieved by the orders issued by respondents 3 and 4
stating that she would not be permitted to rejoin duty in the school
on the expiry of the leave. M.M.L.P. School is managed by
Maslahathul Muslimeen Eucational & Charitable Trust,
Nellissery. By the terms of the trust deed, the President of the trust
shall be elected from the trust members and the President shall be
the Manager of the Educational Institutions run by the trust. Sri
K.Aboobacker alias Bappu continued as the President of the Trust
till the expiry of his term of office i.e. 19/3/2003. According to the
4th respondent, a meeting of the Trust Members held on 21/4/2003
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elected Sri Bava Haji , the 4th respondent herein as the President
of the Trust and therefore he continued as the Manager of the
Schools under the Trust. According to him, his appointment as
the Manager of the schools was approved by the Assistant
Educational Office, Edappal as per order No.C/2594/03 dated
4/11/2003 with effect from 25/4/2003. The 5th respondent, the
erstwhile Manager, filed an appeal before the Director of Public
Instruction, Trivandrum challenging the approval of the 4th
respondent and the appeal stands dismissed by order dated
3/1/2004 upholding the order passed by the Assistant Educational
Officer. The 5th respondent preferred a revision before the
Government, which was dismissed by the Government by order
dated 8/5/2004. Exts.R3 (a), (b) and ) are the aforesaid orders in
respect of U.P. Schools. Some time later, the 4th respondent’s
appointment as the Manager of M.M.L.P. School, Nellissery was
approved as per order dated on 3/1/2005. Exts.R3(d) is the afore-
said order in respect of L.P. School. Exts.R3(a) to R3(d) orders
are challenged by the 5th respondent before this Court in W.P.(C)
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19464/2004.
2. The 5th respondent in the said writ petition contended
that since the registration of the school was in 1983, the
petitioner therein continued as the President of the Trust from
1983, that he was elected from time to time and that on the expiry
of his term on 19/3/2003, he convened a meeting of the members
of the Trust on 2l7/4/2003. In the meeting of the Trust he was
elected as the President of the Trust and therefore he moved the
A.E.O. for approving him as the Manager of the School on
28/4/2003. It is also stated in the writ petition that the 4th
respondent herein, who claimed to be the elected President of the
Trust, approached the A.E.O. for approval of his appointment,
that the A.E.O. considered the rival claims of the petitioner and
the 4th respondent (respondents 4 and 5 herein) and by Ext.R1(a)
order dated 4/11/2003 approved the 4th respondent as the
Manager of the School with effect from 25/4/2003. The appeal
and the revision preferred before the Director of public
instruction and the Government were dismissed by the respective
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orders, which are produced in this case as Ext.R3(b) and ). The
4th respondent herein, who is the 4th respondent in W.P.(C).
No.19464/2004 contended that pursuant to the Trust meeting
held on 21/4/2003, he was elected as the President of the Trust
and that he assumes charge as the Manager of the School under
the Trust on 25/4/2003. Taking into account the fact that he was
the elected President, the A.E.O. approved his appointment,
which was confirmed by the Director of Pubic Instruction and the
Government.
3. The main contention raised by Sri Aboobacker, the
petitioner in the said writ petition, is that the Educational
Authorities under the K.E.R. has no power or authority to decide
the correctness of the election of the President of the Trust, that
they exceeded their jurisdiction while passing the impugned
orders and therefore requested this Court to set aside the
impugned orders and to issue a direction to the A.E.O. to
approve the appointment of the petitioner therein as the validly
elected Manager. This Court, after considering the rival
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contentions set up by the parties, held that when there is a
dispute concerning election of office bearers in the educational
agency, the said dispute has to be settled by the civil court. But,
in this case, by virtue of the provisions of the Trust deed, the
president of the Trust is the ex-officio Manager of the school.
This Court observed that the educational officer, who is
enquiring about the validity of appointment of Manager
incidentally has to look into the election of the President also.
That is what has been done in this case. Without looking into the
rival claims concerning the election as President, the Educational
Officer cannot take a decision. So, I find nothing illegal in the
procedure followed by the Educational Officer and higher
authorities. But the question as to whether the 5th respondent or
the 4th respondent was elected is a matter which has to be decided
by the civil court. The findings of the Educational Officer, the
D.P.I. and the Government will be subject to the decision of the
civil court in the suit, if any, filed by the parties. This Court
dismissed the writ petition without prejudice to the contentions of
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W.P.(C).No.9636/2005
both sides. This Court also held that if the civil court passes any
interim or final order regarding the election of the President,
needless to say that the Assistant Educational Officer shall
correspondingly modify the approval order to make the same in
tune with the decision of the civil court. Thus, the dispute as to
who is the ex-officio Manager of the Schools of the Trust is a
matter, which the civil court has to decide. It is submitted at the
bar that O.S.No.44/2007 on the file of the Sub Court, Tirur is
pending decision, in which Aboobacker is the plaintiff and Sri
Bava Haji is the contesting defendant. The civil court passed an
order of status quo. Ext.P6 is the said order.
4. The 4th respondent and the Educational Authorities took
the stand that the appointment of the petitioner cannot be
approved, since the appointment has been done by the 5th
respondent after the expiry of his term as Manager. The learned
counsel for the 4th respondent submitted that the appointment of
the petitioner as Assistant Teacher was done in violation of
Exts.R3(a) to (c) orders and the appointment made subsequent to
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W.P.(C).No.9636/2005
the approval of appointment of the 4th respondent as Manager
confirmed in appeal and revision is illegal. Exts.R3(a) to (c) are
the approval orders in respect of U.P. School and Ext.R3(d) is the
approval order in respect of the newly started L.P. School.
5. During the pendency of this writ petition this Court by an
interim order dated 30/3/2005 directed respondents 1 to 4 to
permit the petitioner to rejoin duty as P.D. Teacher forthwith and
further directed the 3rd respondent to file an affidavit reporting
compliance of the above direction on or before 8/4/2005. It is
submitted that the petitioner is continuing in service as an
Assistant Teacher.
6. The petitioner was appointed as L.P. School Assistant on
20/10/2004. The appointment was made by the 5th respondent.
According to the 5th respondent, the election of the 4th respondent
as President of the Trust is not in order and that he is the duly
elected President of the Trust. From Ext.R3(a) to Ext.R3(d), it is
clear that the Educational Authorities approved the appointment
of the 4th respondent as the Manager. The issue as to who is the
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duly elected President of the trust is pending before the civil
court. The question as to whether the 4th respondent or the 5th
respondent can continue as the Manager of the institution
depends upon the decision of the civil court. Since the 4th
respondent’s appointment as Manager was approved by the
Educational Authorities, the authorities rightly passed Ext.R3(c)
order rejecting the proposal for approval of appointment of the
petitioner as L.P. School Assistant. In the light of Ext.P5
judgment passed by this Court directing the parties to abide by
the decision of a civil court in the matter of Managership, the
appointment of the petitioner as L.P.S.A by the 5th respondent
also depends upon the decision of the civil court as to who is the
President of the Trust and who is duly elected as the Manager of
the school. It is made clear that if the civil court finds that the 4th
respondent is the duly elected President of the trust, the
appointment of the petitioner as LPSA by the 5th respondent is
illegal and not liable to be approved. On the other hand, if the
civil court finds that the 5th respondent is the duly elected
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President of the Trust and duly appointed Manager of the School,
then the Educational Authorities shall approve the appointment
of the petitioner as LPSA.
7. So long as the Educational Authority has approved the
Managership of the 4th respondent, the appointment of the
petitioner by the 5th respondent prima facie is illegal.
8. Since this Court issued interim order directing
respondents 1 to 4 to permit the petitioner to rejoin duty as P.D.
Teacher and for the reason that she is continuing as a Teacher in
the said school, in the interest of justice, I direct the lst
respondent-A.E.O. to provisionally approve the appointment of
the petitioner within a period of one month from the date of
receipt of a copy this judgment, till a final decision is taken in
O.S.No.44/2007 by the Sub Court. The respondents 1 to 3 on
provisional approval of the appointment, shall disburse the salary
and other benefits due to the petitioner including arrears till date.
The salary shall be paid regularly and the arrears shall be
disbursed within a period of two months from the date of
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approval of her appointment. It is made clear that in case the
civil court finds that the 5th respondent is the duly elected
President of the Trust, the petitioner cannot continue as a Teacher
from the date of judgment in O.S.No.44/2007. The Sub Court
shall dispose of the suit, O.S.No.44/2007 within a period of six
months from today.
Writ Petition is disposed of as above.
Sd/-
HARUN-UL-RASHID,
Judge.
kcv.