IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 2606 of 2007()
1. FR.D.SELVARAJAN, CORPORATE MANAGER,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE DIRECTOR OF PUBLIC INSTRUCTIONS,
3. THE DIST.EDUCATION OFFICER,
4. THE MANAGER, VRINDAVAN HIGH SCHOOL,
For Petitioner :SRI.N.NANDAKUMARA MENON
For Respondent : No Appearance
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice K.M.JOSEPH
Dated :21/11/2007
O R D E R
H.L.DATTU, C.J. & K.M.JOSEPH, J.
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W.A.Nos.2606 & 2668 of 2007 &
W.P.(C) Nos.17864 & 20029 of 2007
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Dated, this the 21st day of November, 2007
JUDGMENT
K.M.Joseph, J.
Since the writ appeals and the writ petitions are connected, they are
disposed of by this common judgment.
2. Writ Appeals are filed against the interim order passed by the
learned Single Judge in W.P.(C) No.17864 of 2007 and W.P.(C) No.20029
of 2007 which have been filed by Fr.D.Selvarajan and Fr.K.J.Vincent
respectively. The prayer in W.P.(C) No.17864 of 2007 is to quash Ext.P4
order passed by the Additional Director of Public Instruction (General)
Thiruvananthapuram. In W.P.(C) No.20029 of 2007 the petitioner
challenges the very same order passed by the Additional Director of Public
Instruction which is produced as Ext.P12 in the said writ petition. The
further relief sought for in the writ petition is to consider Ext.P2 request and
grant recognition to the petitioner’s High School ‘Our Lady of Assumption
H.S.’
3. The short facts necessary to appreciate the dispute between the
parties are as follows:
The 4th respondent in W.A.No.2606 of 2007, namely the Manager,
Vrindavan High School, Vlathankara, Neyyattinkara, had preferred W.P.(C)
No.14112 of 2005 before this Court contending that Fr.K.J.Vincent is
running an un-recognized High School and this infringes the right of the 4th
W.A.No.2606/2007, etc.
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respondent who is running an aided High school in the vicinity. The said writ
petition came to be disposed of by Ext.P2 judgment produced in W.P.(C)
No.17864 of 2007. Therein, the learned Single Judge took note of the fact that
there was an enquiry conducted by the departmental authorities and this
Court being convinced of the same, directed the departmental authorities to
take follow up actions in the matter. It is pursuant to the said judgment that the
impugned order in both the writ petitions came to be passed.
4. The foremost question raised by Fr.D.Selvarajan is as follows: He
would contend that he is the corporate manager of the Latin Catholic Schools,
Dioceses of Neyyattinkara. He would rely on Ext.P1 authorisation given by the
Vicar General and a perusal of the said exhibit would show that he is authorised
to file writ petition for St.Peter’s U.P.School Vlathankara. According to him,
he is the manager of 18 L.P.Schools, 10 U.P.Schools and 4 High Schools in the
State. According to him, it is imperative that he be issued with a notice before
any order in the nature of Ext.P4 is passed, but in violation of the principles of
natural justice and without issuing any notice to him the impugned order came
to be passed. By the impugned order the Additional Director of Public
Instruction has proceeded to hold after referring to the enquiry conducted by
the Vigilance wing of the Education Department that an unrecognized High
School under the name ‘Our Lady of Assumption H.S.’ is functioning in the
compound of an aided middle school named St.Peter’s UPS which is the main
feeding school of Vrindavan High School run by the 4th respondent. Thereafter
it is stated in the order that the said enquiry was conducted by
W.A.No.2606/2007, etc.
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Sri.K.Sasidharan, the then Joint Director of Public Instruction by serving enquiry
notice No.V2/49813/05 dated 21.2.2006 to the Headmaster, St.Peter’s UPS,
Vlathankara and the Headmaster, Vrindavan H.S. Vlathankara and that the
departmental enquiry had clearly proved that the manager of the Our Lady of
Assumption High School had committed fraud on the department and thereby
caused huge loss to the Government and injustice to the poor students of that
area. It was in the above circumstances that the Manager of the St.Peter’s UP
School, Vlathankara was directed to cease functioning of the unaided
unrecognized Our Lady of Assumption High School, Vlathankara immediately
and issue the transfer certificate of students studying in the above school to
the nearby Government/Aided Schools immediately. It was also stated in the
said order that if the Manager of St.Peter’s UP School, Vlathankara fails to
comply with the said direction, the department would be forced to take urgent
action by disqualifying the Managership and necessary action would be taken
by the department for the withdrawal of the recognition of aided St.Peter’s UP
School. The District Educational Officer, Neyyattinkara was also directed to
take urgent steps in that regard and enquire whether the directions in that order
are carried out by the Manager.
5. There is no dispute that Fr.D.Selvarajan was not heard in the matter.
In fact, a perusal of Ext.P2 judgment would appear to show that
Fr.D.Selvarajan is not made a party in the said writ petition and Fr.K.J.Vincent
was arrayed as the first respondent. The matter was proceeded with on the
basis that he is the manager of St Peter’s UP School also. In fact, a perusal
W.A.No.2606/2007, etc.
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of the affidavit filed by Fr.K.J.Vincent in the earlier writ petition would show that
he had contended that he is not the manager of St.Peter’s UP School. The
writ petition came to be disposed of with a direction, pursuant to which Ext.P4
came to be passed without notice to Fr.D.Selvarajan. Fr.D.Selvarajan has also
produced certain documents (Exts.P5 to P7) to probabilise his case that he is
the corporate manager of St.Peter’s UP School. According to him, the finding
that the ‘Our Lady of Assumption High school’ is functioning within the
compound of the St.Peter’s UP School is without any basis. He has no
objection against the closing down of the said school. He is aggrieved only by
the direction given which would result in withdrawal of the recognition of the
St.Peter’s UP School.
6. In W.P.(C) No.20029 of 2007 the very same order is challenged by
Fr.K.J.Vincent. Apart from the prayer to quash the impugned order Ext.P12, he
also sought for a direction to consider the application for recognition of his
school. According to him, he is running an unaided High School in the name of
‘Our Lady of Assumption High School’. It is stated that the said school was
started in the academic year 2005-06 pursuant to the notification issued by the
Government. He applied for recognition of the school as per Ext.P2. It is also
stated that there is need of people for better education and uplifting the
downtrodden, the people at large irrespective of caste, creed and religion
decided to have a high school with better facilities. Accordingly, the petitioner
who is a parish priest and parish council of Assumption Forane Church decided
to start a school to suit the educational necessity of the area and the school
W.A.No.2606/2007, etc.
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started functioning after complying with all other formalities with the basic
infrastructure. He would further submit that the third respondent visited the
school on 21.6.2005 and verified the records including the infrastructures and
other facilities and forwarded the same to the second respondent in 2005.
There is a reference to the writ petition filed by the 4th respondent which
culminated in passing of the impugned order.
7. Heard learned counsel appearing on behalf of the parties.
8. As far as the question whether notice was issued to Fr.D.Selvarajan
is concerned, there is no serious dispute. When he being the corporate
manager of St.Peter’s UP School and he is visited with adverse consequences
by the impugned order dated 10.5.2007, he should have been put on notice
and heard before an order in the nature impugned was passed. Therefore,
we think that Ext.P4 in W.P.(C) No.17864 of 2007 requires to be interfered with
and quashed and we do so. Ext.P12 in W.P.(C) No.20029 of 2007
corresponding to Ext.P4 in the other writ petition proceeds on the basis that the
school is being run in the very same compound where St.Peter’s UP School is
situated. This is disputed by Fr.K.J.Vincent. He has produced documents
(Annexures I to VIII) to probabilise his contention in this regard. Since the
finding of the authorities is that an unauthorized school is functioning within the
compound belonging to the St.Peter’s UP School, the said order requires to be
vacated and the matter be remitted back to the authorities for decision on
merits after hearing the parties concerned. We feel that Ext.P12 in W.P.(C)
No.20029 of 2007 also requires to be interfered with. It is for the petitioner
W.A.No.2606/2007, etc.
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K.J.Vincent to produce documents to probabilise his case that the school is
located in a separate plot and that it is not located within the compound of
St.Peter’s UP School. Accordingly, we quash Ext.P12 in W.P.(C) No.20029 of
2007. The third respondent Director of Public Instruction is directed to
consider the matter afresh with opportunity of hearing to the petitioners as also
the contesting respondent in the writ petitions and take a decision in
accordance with law. Such a decision will be taken by the third respondent
within a period of two months from the date of receipt of a copy of this
judgment. It will be open to the parties to produce such materials as they feel
advised to substantiate their contentions before the authority concerned.
9. So far as the question regarding the grant of second relief is
concerned, Sri.S.P.Aravindakshan Pillai, learned counsel appearing for the 4th
respondent in W.A.No.2606 of 2007 would point out that such a prayer is not
justified. According to him, it is settled law that an application for recognition of
starting of a school can be processed only if it is received in pursuance to the
notifications issued under Rule 2A of Chapter V of the Kerala Education Rules.
There is no such notification, he contends. Sri.Aravindakshan Pillai would also
rely on a decision of the apex Court in State of Kerala v. Prasad (2007 (3) KLT
531) for the proposition that the application received otherwise than pursuant to
the notification issued under Rule 2A of Chapter V of the Kerala Education
Rules cannot be considered. We only direct that if the application preferred by
Fr.K.J.Vincent is in pursuance to the notification as mandated in the Kerala
Education Rules, the same will be considered and decision taken in accordance
W.A.No.2606/2007, etc.
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with law bearing in mind the proposition laid down by the apex Court in the
decision cited above.
In the light of the disposal of the writ petitions no further orders are
necessary in the writ appeals. Accordingly they are closed.
In view of the order passed in the writ petitions, all pending interlocutory
applications would stand closed.
(H.L.DATTU)
CHIEF JUSTICE
(K.M.JOSEPH)
JUDGE
vns