IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 28183 of 2002(E)
1. M.I. ANDREWS, S/O. LATE SRI.M.O. ITTOOP
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. HE DIRECTOR OF PUBLIC INSTRUCTION,
3. THE DISTRICT EDUCATIONAL OFFICER,
4. THE ASSISTANT DIRECTOR, VOCATIONAL
5. M.I. JOSE, MUKKADACKAL HOUSE,
For Petitioner :SRI.P.RAVINDRAN (SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :29/10/2010
O R D E R
C.T.RAVIKUMAR, J.
-----------------------------
O.P.No.28183 of 2002,
W.P.(C)Nos.31062 & 32541 of 2009
----------------------------
Dated 29th October, 2010
JUDGMENT
The lis involved in these Writ Petitions is a sibling quarrel
over the Management of Vocational Higher Secondary School,
Irumpanam(for short ‘the School’ only). For the sake of convenience,
WP(C) No. 32541 of 2009 is treated as the leading case and hereafter,
the parties and documents are being referred to as described in the said
Writ Petition unless otherwise specifically mentioned.
2. Late Sri. Itoop, the father of the petitioner and the 4th
and the 5th respondents is the founder of the school. In fact, it was
established in the year 1940. This Writ Petition is filed with the prayers
to quash Ext.P9 order dated 22.10.2009 of the 2nd respondent and to
issue a writ of mandamus directing the 2nd respondent to pass fresh
orders after giving an opportunity of being heard to the petitioner. W.P
(C) Nos.28183 of 2002 and 31062 of 2009 are filed by the 4th
respondent herein. In the former Writ Petition filed by him the
challenge is against the order of the Government dated 15.7.2002
(Ext.P7 therein) allowing the revision petition filed by the 5th respondent
herein whereby status quo ante to the appeal petition dated 1.8.2000
O.P.No.28183/2002 & connected cases 2
filed by Itoop (Ext.P2 therein) was ordered to be maintained subject to
the final decision in O.S No.333 of 2001 filed by the 5th respondent
herein before the Sub Court, Ernakulam for cancellation of document
No. 1174/01 viz., Ext.P4 Trust Deed dated 20.4.2001.
3. The founder of the School Sri. M.O.Itoop was its
Manager. Daunted by dotage and other deceases he made up his mind
to part with its management and the family members come to a
concomitancy over the issue and reduced it in writing as family
settlement on 7.1.2000 which is produced as Ext.P1 in W.P(C) No.
31062 of 2009. Thereafter, an application, purported to have been
signed jointly by Sri.Itoop and the 5th respondent (Ext.P2 in WP(C)
No.31062 of 2009), to transfer the management of the school in favour
of the 5th respondent was submitted before the District Educational
Officer, Ernakulam, the 3rd respondent. Thereupon, the 3rd respondent
appointed the 5th respondent as the Manager of the School as per
Ext.P2 order dated 13.3.2000. According to the petitioners in these
writ petitions viz., the petitioner herein and the 4th respondent, Ext.P2
joint letter was a fabricated one as late Sri. Itoop had not signed the
same. According to them, even after Ext.P2 order dated 13.3.2000
Sri.Itoop continued as the Manager of the School and the 5th
respondent did not take over its Management. On coming to know
about the said mischief Sri. Itoop filed an appeal dated 1.8.2000
O.P.No.28183/2002 & connected cases 3
(Ext.P2 in O.P.No.28183 of 2002) before the Director of Public
Instruction, the 2nd respondent. Later, this Court as per judgment in
O.P.No.14260 of 2000 directed the 2nd respondent to pass appropriate
orders after hearing the concerned parties. During the course of the
proceedings before the Director of Public Instruction the family
settlement dated 7.1.2000 carrying the desire to form a Trust was
produced and accordingly, it was adjourned to enable creation of the
Trust. Accordingly, as per Ext.P3 registered deed No. 1174 of 2001
dated 20.4.2001 of the Thrippunithura Sub Registry a Trust was
formed with Sri.Itoop as the settler and the petitioner and the 4th and
5th respondents as the beneficiaries. Ext.P3 was executed for the
purpose of providing the governance of the school and its
administration. Later, Ext.P3 Trust Deed was produced before the 2nd
respondent. Accordingly, the 2nd respondent- DPI cancelled Ext.P2
order dated 13.3.2000 of the 3rd respondent – DEO and directed to
approve the proposal for change of management in accordance with the
terms and conditions in Ext.P3 Trust Deed dated 20.4.2001 subject to
the judgment in O.S.No.333 of 2001 on the files of the Sub Court,
Ernakulam. The said suit was filed by the 5th respondent herein for
cancellation of Ext.P3 Trust Deed dated 20.4.2001. The 5th respondent
challenged the aforesaid order of the DPI viz., Ext.P4 order dated
2.8.2001, in revision, before the Government. As per Ext.P5 order
O.P.No.28183/2002 & connected cases 4
dated 15.7.2002 Government set aside Ext.P4 order of the DPI and
status quo ante to the appeal dated 1.8.2001 viz., Ext.P2 in
O.P.No.28183 of 2002, was ordered to be maintained subject to the
final decision in O.S No.333 of 2001 filed by the 5th respondent. On the
strength of Ext.P6 the 5th respondent again continued to function as the
Manager of the school.
4. On 29.11.2008 O.S.No.333 of 2001 filed by the 5th
respondent was dismissed by Sub Court, Ernakulam, with costs to the
defendants including the petitioner and the 4th respondent herein. In
fact, much prior to the passing of the same viz, Ext.P6 judgment
Sri.Itoop had passed away. As per Ext.P6 it was held that Ext.P3 Trust
Deed was not vitiated by undue influence or fraud alleged to have been
exercised on Sri.Itoop by the petitioner and the 4th respondent herein
and further, Ext.P3 Trust Deed is binding upon the 5th respondent, the
plaintiff, as well. Immediately thereafter the 4th respondent
approached the 3rd respondent – DEO for appropriate orders in terms
of Ext.P5 order dated 15.7.2002 of the Government. Consequently,
the 3rd respondent – DEO issued Ext.P7 order dated 6.2.2009. As per
Ext.P7, the 3rd respondent DEO approved the change of Management of
the School in the name of the 4th respondent for a period of two years
from 29.11.2008 to 28.11.2010. It is also held that the change of
management did not involve any change of ownership. Accordingly,
O.P.No.28183/2002 & connected cases 5
the 4th respondent assumed charge as Manager of the School on
7.2.2009. Thereupon, the 5th respondent filed W.P(C)No.4225 of 2009
before this Court challenging Ext.P7 order dated 6.2.2009. The said
Writ Petition was disposed of as per Ext.P8 judgment granting liberty to
the 5th respondent to challenge Ext.P7 order, in appeal, before the DPI.
The 4th respondent was permitted to continue to function as Manager of
the School subject to the condition that he should not appoint fresh
hands and making it clear that the parties would be governed by the
orders passed by the Director of Public Instruction. Pursuant to Ext.P8
judgment the 5th respondent preferred an appeal against Ext.P7 order
of the DEO under Rule 4(3) of Chapter III of the Kerala Education Rules
(for short ‘the KER’). Later, a hearing was conducted on 25.8.2009.
The 4th and 5th respondents were heard by the DPI. Admittedly, no
notice of hearing was given to the petitioner. Thereafter, the DPI has
passed Ext.P9 order dated 22.10.2009. As per Ext.P9 it was found that
the order in Ext.P7 of the DEO approving the Managership of the 4th
respondent from 29.11.2008 to 28.11.2010 was not in order and
accordingly, it was set aside. It was further ordered thereunder that
the 5th respondent would continue the Managership until further orders.
Ext.P9 order in this Writ Petition is produced as Ext.P10 in W.P(C)
No.31062 of 2009. It is with the above averments that W.P(C) Nos.
32541 of 2009 and 31062 of 2009 are filed challenging the same order
O.P.No.28183/2002 & connected cases 6
viz., Order No. EC(3)/33899/09/DPI/K.Dis. dated 22.10.2009 of the 2nd
respondent, the Director of Public Instruction. In troth, both the writ
petitions carry identical challenges based on common grounds except
to the fact in the former among them, the petitioner has raised an
additional ground that he was not served with any notice and was also,
not afforded with an opportunity of being heard prior to the passing of
the said order. As regards O.P.28183 of 2002 it was, in fact, filed
challenging Ext.P5 herein viz., Ext.P7 therein, whereby Government
set aside Ext.P4 order of the DPI and restoring status quo ante to the
appeal dated 1.8.2001 subject to the final decision in O.S.No.333 of
2001 filed by the 5th respondent. On account of the subsequent
developments and also the filing of W.P(C)No.31062 of 2009 by the
same petitioner a separate consideration of the contentions in the said
writ petition is not called for. I may, therefore, deal with the issues
raised for consideration in WP(C)Nos.32541 of 2009 and 31062 of
2009.
5. Certain other aspects also assume relevance in this
case. While admitting W.P(C)No.31062 of 2009 this Court has stayed
operation and implementation of Ext.P10 which is Ext.P9 order in WP
(C) No.32541 of 2009, on 2.11.2009. Thereafter, the petitioner in WP
(C) No.31062 of 2009/the 4th respondent in WP(C) No.32541 of 2009
sought for extension of the interim order. However, the same was
O.P.No.28183/2002 & connected cases 7
opposed by the 1st respondent therein who is the 5th respondent in WP
(C) 32541 of 2009. After hearing all the parties in these writ petitions
this Court, as per order dated 11.1.2010 modified the aforesaid interim
order dated 2.11.2009 and passed a common order applicable to these
cases. As per the same, from 6.2.2009 till 6.2.2011 the 4th respondent
would be the Manager. From 7.2.2011 for the next 2 years it would be
the turn of the petitioner viz., Sri.M.I.Pauly. However, instead of
passing the turn of managership to the 5th respondent after the expiry
of the term of the petitioner it was ordered to be passed on to the 4th
respondent and that process was ordered to be continued among the
petitioner and the 4th respondent till the excess period during which the
5th respondent held the managership in terms of Ext.P3 Trust Deed,
was completely exhausted. Thereafter, it was ordered to be operated
among the petitioner, the 4th respondent and 5th respondent in terms of
Ext.P3. The said order dated 11.1.2010 was taken up in appeal as
W.A No. 185 of 2010. As per judgment dated 3.2.2010 a Division
Bench of this Court dismissed the Writ Appeal, but without prejudice to
the contentions of the appellant viz., the 5th respondent. In short, in
terms of the interim order dated 11.1.2010 the 4th respondent is
presently holding Managership of the School since 6.2.2009.
6. A counter affidavit has been filed by the first respondent
in W.P(C) NO. 31062 of 2009 and, in essence, the contentions in WP(C)
O.P.No.28183/2002 & connected cases 8
No. 32541 of 2009 are on the same lines as in WP(C)No.31062 of
2009. Therefore, the first respondent who is the 5th respondent in W.P
(C)No.32541 of 2009 submitted that no separate counter affidavit is
required in the said Writ Petition. The 5th respondent herein is the 5th
respondent in O.P.No. 28183 of 2002 as well. He has filed a separate
counter affidavit therein. In essence, the 5th respondent refutes all the
contentions of the petitioner and the 4th respondent and assails the
very legality of Ext.P3 Trust Deed as well. In fact, it is for that purpose
he has filed O.S.No.333 of 2001. Against Ext.P6 judgment in
O.S.No.333 of 2001 he has preferred an appeal as A.S.No.20 of 2009
and the same is now pending. According to the 5th respondent even if
Ext.P3 is taken as valid in civil law, it is unsustainable and inoperative
for the purpose of the provisions under the Kerala Education Act and
the Rules. I may, now deal with the rival contentions.
7. As already noticed, the petitioner and the fourth
respondent are sailing together and both of them are assailing Ext.P9
order dated 22.10.2009 of the Director of Public Instruction in their
respective writ petitions. The grievance of the petitioner is that Ext.P9
order was passed without notice to him. Going by Ext.P3 Trust Deed,
the petitioner is also one of the beneficiaries besides respondents 4 and
5. Ext.P7 order of the District Educational Officer was passed strictly in
terms of Ext.P5 order dated 15.7.2002 of the Government and also in
O.P.No.28183/2002 & connected cases 9
compliance with Ext.P6 judgment in O.S.No.333 of 2001 of the Sub
Court, Ernakulam. It is the contention of the petitioner that while
interfering with Ext.P4 order passed by the second respondent – the
Director of Public Instruction and directing to restore the status quo
prior to the filing of appeal dated 1.8.2000 by late Sri.Ittoop (Ext.P2 in
W.P.(C)No.31062 of 2009) and thereby permitting the 5th respondent
to continue to function as Manager of the school, it was made clear by
the Government that the said order would be subject to the final
decision in O.S.No.333 of 2001 filed by the fifth respondent. Based on
Ext.P5 it is contended that the fifth respondent did not challenge the
legality of that part of Ext.P5 and virtually, permitted Ext.P5 to attain
finality. In that view of the matter, according to the petitioner, the fifth
respondent is estopped from raising grievance against Ext.P7 order
which was passed in terms of Ext.P5 and in compliance with Ext.P6
judgment in O.S.No.333 of 2001. As already noticed hereinbefore, the
fourth respondent virtually endorsed the contentions raised by the
petitioner. In fact, it was contended on behalf of the fourth respondent
that having failed to challenge Ext.P5 order the petitioner cannot turn
around and challenge the legality of Ext.P7 which was passed by the
DEO strictly in terms of Ext.P5 and also in terms of Ext.P6 judgment in
O.S.No.333 of 2001. In short, the contention is that in case the 5th
respondent who filed O.S.No.333 of 2001 is having a contention that
O.P.No.28183/2002 & connected cases 10
irrespective of its outcome he is entitled to continue as Manager on
account of the infirmities and illegalities that infected Ext.P3 Trust Deed
he should have definitely challenged Ext.P5 order of the Government.
The acquiescence on the part of the 5th respondent would definitely
estop him from raising grievance against Ext.P7 order which was issued
for implementing Ext.P5 order in the light of Ext.P6 judgment. In
short, according to the petitioner and the fourth respondent, Ext.P7
order passed by the DEO is legal and valid and the 5th respondent could
not have challenged Ext.P7 order in appeal on account of the aforesaid
reasons. In essence, the contention is that the appeal preferred
against Ext.P7 order itself was not maintainable.
8. Per contra, the 5th respondent contended that the appeal
preferred by him was perfectly maintainable in terms of provisions
under sub rule (3) of Rule 4 of Chapter III of the KER. That apart, it is
contended that Ext.P7 is unsustainable for the reason that it was
passed without affording him an opportunity of being heard. According
to the fifth respondent, Ext.P7 order is an original order passed under
sub rule (1) of Rule 4 of Chapter III of the KER. The fifth respondent
has filed a counter affidavit in W.P.(C)No.31062 of 2009. In fact, he is
the first respondent therein. Obviously, he is admitting the existence
of Ext.P1 family settlement dated 7.1.2000 in W.P.(C)No.31062 of
2009. The contention of the fifth respondent is that Ext.P6 judgment in
O.P.No.28183/2002 & connected cases 11
O.S.No.333 of 2001 would not automatically deprive him of the
managership and, in fact, the rights of the parties in terms of Ext.P3
Trust Deed have to be decided by the DEO in terms of Ext.P5 order of
the Government. Even going by the Trust Deed, he has to act as the
Manager of the school for one year from the date of operation of Ext.P3
Trust Deed. It is, inter alia, on the aforesaid ground that the fifth
respondent attacks Ext.P7 order. The further contention of the fifth
respondent is that Ext.P7 order is an original order adjudicating the
rights of the parties namely the petitioner, the fourth respondent and
himself and therefore, it is an appealable order in terms of sub rule (3)
of Rule 4 of Chapter III of the KER.
9. The fifth respondent has raised certain other contentions
as well. According to him, the settler late Sri.Ittoop should have
obtained previous permission in terms of the provisions under Rule 2 of
Chapter III of the KER. It is also contended that if at all Ext.P3 Trust
Deed is taken as valid in law, so long as it was not executed with
previous permission from the educational authorities in terms of the
provisions under the Kerala Education Rules, it cannot decide the rights
of the parties to the Managership of the school in terms of the
provisions under the Kerala Education Rules. In other words, according
to him, it may be valid in civil law, but, it cannot be acted upon in
terms of the provisions under the KER. Further, it is contended that if
O.P.No.28183/2002 & connected cases 12
the Trust is found to have come in existence and the properties were
transferred into the names of the trustees, then it would involve the
change of ownership as well. In the matter of transfer of management
involving transfer of ownership the authority competent to grant the
same is the Director of Public Instruction and therefore, Ext.P7 order
passed by the DEO is unsustainable. Relying on the said position, he
has raised certain contentions as well. One such contention raised is, if
the transfer of the properties were effected by virtue of Ext.P3 Trust
Deed the entire transaction would be in contravention of Section 3 of
the Kerala Education Act and as such it would be null and void.
According to the fifth respondent, Rule 2 of Chapter III of the KER is
not applicable in this case, whereas Rule 5A of Chapter III is applicable
in the facts and circumstances of this case. Therefore, going by the
contentions of the fifth respondent the question is whether Ext.P3 Trust
Deed would fall within the purview of Section 6 of the Kerala Education
Act. Lastly the fifth respondent contended that even if Ext.P7 order of
the DEO is treated to have been passed in terms of Ext.P5 order of the
Government and Ext.P3 Trust Deed taken as valid, in view of the order
in Ext.P5 the petitioner could have continued to hold the managership
of the school. According to him, an appeal is a continuation of the
original suit and therefore, on account of the pendency of A.S.No.20 of
2009 pending on the files of the District Court, Ernakulam preferred
O.P.No.28183/2002 & connected cases 13
against Ext.P6 judgment in O.S.No.333 of 2001, the third respondent
DEO should not have issued Ext.P7 order as the suit, O.S.No.333 of
2001, had not attained any finality.
10. The learned counsel for the fourth respondent resisted
the said contentions raised on behalf of the fifth respondent. It is
contended that the expression `subject to rules’ employed in Rule 2 to
Chapter III and the expression `previous permission’ employed in Rule
5A of Chapter III are different. Relying on the decision of the Apex
Court in Surinder Singh v. Central Government (AIR 1986 SC
2166) it is contended that the expression `subject to rules’ only means
in accordance with the rules, if any. It is also contended that
restriction of alienation of property of an aided school alone is
prohibited without permission. In this case, what involves is only
transfer of management. It is also contended that the contention that
the third respondent should not have issued Ext.P7 order relying on
Ext.P6 judgment and the order in Ext.P5 that the order therein would
be subject to the outcome of O.S.No.333 of 2001, is not sustainable
in view of the pendency of the appeal preferred against Ext.P6
judgment. It is contended that in terms of Order XLI Rule 5 of the
Code of Civil Procedure an appeal cannot be considered as a stay of
O.P.No.28183/2002 & connected cases 14
the judgment and decree in the original suit. It is obvious from the
above contentions that the grievance of the petitioner is that he was
not heard prior to the passing of Ext.P9 order of the Director of Public
Instruction on 22.10.2009. According to him, being one of the
beneficiaries of Ext.P3 Trust Deed and thus one of the persons entitled
to hold the post of Managership in rotation, any decision touching the
question of Managership of the school should have been issued only
with notice to him and after affording him an opportunity of being
heard. According to him, the second respondent has issued notices and
heard only respondents 4 and 5 and on that sole ground Ext.P9 is
unsustainable.
11. As already noticed hereinbefore, the grievance of the
fifth respondent is that Ext.P7 order was passed by the DEO without
issuing him notice and without affording him an opportunity of being
heard. Admittedly, it is the said order that was interfered with by the
Director of Public Instruction under Ext.P9. Thus, the petitioner and
the fifth respondent are raising grievances of violation of the principles
of natural justice at different stages of the proceedings, i.e., the
petitioner at the stage of passing Ext.P9 and the fifth respondent at the
stage of passing Ext.P7. Considering the fact that earlier Government
have passed an order after considering the entire aspects of the case I
do not propose to relegate the parties to resort to the remedy, if any,
O.P.No.28183/2002 & connected cases 15
available before the Government.
12. True that, as per Ext.P8 judgment, this Court found that
Ext.P7 order of the DEO is one passed under sub rule (1) of Rule 4 of
Chapter III of the KER and therefore, it is appealable under sub rule
(3) of Rule 4 of Chapter III. The question whether the petitioner was
estopped from raising grievance against Ext.P7 order was not actually
considered by this Court. Going by the facts of the case, it is evident
that the petitioner has approached the Government on an earlier
occasion on being aggrieved by Ext.P4 order whereby the Director of
Public Instruction cancelled Ext.P2 order dated 13.3.2000 and directed
to approve the proposal for change of management in accordance with
the terms and conditions in Ext.P3 Trust Deed dated 20.4.2001. In the
revision petition filed against the said order the Government have
passed Ext.P5 order. I do not propose to go into the merits of the
order in Ext.P4 as admittedly, the fifth respondent did not challenge the
same. As per Ext.P5 order, Ext.P4 order of the Director of Public
Instruction was set aside and status quo prevailing prior to the appeal
dated 1.8.2000 preferred by late Sri.Ittoop was restored. In short, by
the said order, the fifth respondent was permitted to continue as the
Manager of the school subject to final decision in O.S.No.333 of 2001.
Admittedly, the fifth respondent had executed the said order and
assumed the managership but did not challenge the direction in Ext.P5
O.P.No.28183/2002 & connected cases 16
even though it is made clear that the permission granted him to
function as the Manager of the school would be subject to the final
decision in O.S.No.333 of 2001. As already noticed, O.S.No.333 of
2001 was filed by the fifth respondent himself. Since Ext.P6 judgment
was taken up in appeal by the fifth respondent as A.S.No.20 of 2009
before the District Court, Ernakulam and the same is now pending, it
will be most inappropriate to consider the sustainability or otherwise of
any findings in Ext.P6 judgment. All those are matters to be
considered in A.S.No.20 of 2009. Evidently, as per Ext.P5 order
Government have directed for restoration of the status quo prior to the
filing of the appeal by late Sri.Ittoop and thereby put the petitioner
back into the managership of the school. Had the petitioner got any
grievance with respect to the order in Ext.P5 to the extent it orders the
direction issued in favour of the fifth respondent as subject to the final
decision in O.S.No.333 of 2001, the petitioner should have challenged
that part of the said order whereby the order passed in his favour was
made subject to the final decision in O.S.No.333 of 2001. The question
therefore is whether Ext.P7 order by the DEO is an order passed purely
in implementation of Ext.P5 order and in terms of Ext.P6 judgment in
O.S.No.333 of 2001. If the answer is in the affirmative that would
definitely render Ext.P7 order passed by the third respondent
unsustainable at the instance of the fifth respondent. A scanning of
O.P.No.28183/2002 & connected cases 17
Ext.P5 order would reveal that even though pendency of O.S.No.333 of
2001 filed by the fifth respondent was taken into consideration while
passing Ext.P5 he did not raise a contention that the outcome of
O.S.No.333 of 2001 is irrelevant in the matter of managership of the
school by alleging that the said Trust Deed which was the subject
matter in O.S.No.333 of 2001 is infected with an inherent infirmity
inasmuch as it was not executed with previous permission of the
educational authorities and therefore, even in case of validating Ext.P3
Trust Deed would not and could not have an impact on the position of
the Managership of the school. On the other hand, a scanning of
Ext.P5 would reveal that the fifth respondent did not raise any such
contentions before the Director of Public Instruction while passing
Ext.P4. After adverting to the contentions raised by respondents 4 and
5 it was held in Ext.P4 as hereunder:-
“Therefore, it is obvious that the affairs of the school
should be managed in accordance with the provisions
contained in the registered deed.”
It is after entering into such a definite finding that as per Ext.P4 the
Director of Public Instruction directed the DEO to approve the proposal
for change of management in accordance with the terms and conditions
in Ext.P3 Trust Deed registered on 20.4.2001 and the same was made
subject to the judgment in O.S.No.333 of 2001. It is the said order
that was carried in revision before the Government by the fifth
O.P.No.28183/2002 & connected cases 18
respondent. Ultimately, as per Ext.P5, Ext.P4 order of the Director of
Public Instruction was set aside but, the finding to the effect that the
affairs of the school should be managed in accordance with the
provisions contained in the registered deed was not interfered with in
Ext.P5 by the Government and virtually it was affirmed by retaining the
decision of the Director of Public Instruction by ordering its decision
also subject to the final decision in O.S.No.333 of 2001. Therefore, the
petitioner cannot now turn around and submit that that part of Ext.P5
that went against him by making the order in Ext.P5 subject to the final
decision in O.S.No.333 of 2001 would not empower the DEO to pass
orders in terms of Ext.P5 in the light of Ext.P6 judgment in O.S.No.333
of 2001. The fifth respondent cannot contend that the revision
preferred by him before the Government was not one against the order
in Ext.P4 which carried a specific finding to the effect that the affairs of
the school should be managed in accordance with the provisions
contained in the registered deed. The position that O.S.No.333 of 2001
was filed by the fifth respondent and that it was filed against the Trust
Deed dated 20.4.2001 was taken note off. It be so, the petitioner
cannot feign ignorance of the position that by making the orders in
Ext.P5 subject to the final decision in O.S.No.333 of 2001 Government
have virtually affirmed that part of the order of the Director of Public
Instruction whereby it was ordered that the affairs of the school should
O.P.No.28183/2002 & connected cases 19
be managed in accordance with the provisions contained in the
registered deed. Definitely if that was not the position, Government
would not have made its order in Ext.P5 subject to the final decision in
O.S.No.333 of 2001. Therefore, according to him, the mere fact that
the order under Ext.P7 is appealable or not is not the provisional
question to be decided. But, the question is whether in view of the
failure on the part of the fifth respondent in challenging Ext.P5 to the
above extent would estop him from raising grievance against Ext.P7.
Evidently, as per Ext.P6 judgment, the Sub Court, Ernakulam found
Ext.P3 Trust Deed as not vitiated by undue influence or fraud alleged to
have been exercised by the petitioner and the fourth respondent, and
thereby repelled the contention of the fifth respondent. Further, as per
Ext.P6 judgment, Ext.P3 Trust Deed was held as legally came into
existence and binding upon the fifth respondent also and the above suit
filed by the fifth respondent was dismissed with costs to the defendants
including the petitioner and the fourth respondent. According to him,
the cumulative effect of the finding in Ext.P4 that the affairs of the
school should be managed in accordance with the provisions contained
in the registered deed viz., Ext.P3 Trust Deed dated 20.4.2001 and
making the order thereunder subject to the judgment in O.S.No.333 of
2001 and the order of the Government in Ext.P5 making the order
thereunder also subject to the final decision in O.S.No.333 of 2001 and
O.P.No.28183/2002 & connected cases 20
further Ext.P6 judgment in O.S.No.333 of 2001 would definitely make
the order in Ext.P7 as one strictly in compliance with the order under
Ext.P5. That apart, it is to be noted that as per Ext.P5 the appeal
preferred by late Sri.Ittoop on 1.8.2000 was rejected holding the same
as time barred. The order of approval of change of management in the
name of the fifth respondent was approved by the DEO on 13.3.2000.
The appeal against the same was preferred only on 1.8.2000. It is the
said appeal that was held as hopelessly time barred as it was filed
beyond the period of 30 days provided under Rule 4(3) of Chapter III
of the KER. If the contention of the fifth respondent that the change of
management in this case involves change of ownership is taken as
correct then the time limit prescribed as per Rule 4(3) of Chapter III of
the KER would not be made applicable in this case and what would be
applicable is only Rule 5A of Chapter III of the KER and therefore, the
finding that the appeal preferred by late Sri.Ittoop on 1.8.2000 is
hopelessly time barred in the light of the provisions under Rule 4(3) of
Chapter III of the KER cannot be sustained. In the appeal itself late
Sri.Ittoop has specifically stated that he has preferred the appeal on
coming to know about the passing of Ext.P2 order dated 13.3.2000 of
the DEO approving the change of management. In the circumstances,
I am of the view that the fifth respondent could not have legally raised
any grievance against Ext.P7 order.
O.P.No.28183/2002 & connected cases 21
13. The Apex Court in M.C.Mehta v. Union of India
((1999) 6 SCC 237) held that if on the admitted and indisputable facts
and position only one conclusion is possible and permissible the court
need not issue a writ merely because there has been a violation of the
principles of natural justice. Therefore, the third respondent had not
issued a notice or did not provide an opportunity of being heard to the
fifth respondent cannot be a reason for interference with Ext.P7 in case
based on the admitted and indisputable factual position only one
conclusion was possible and permissible.
14. In the above context, the question that assumes
relevance is whether prior to execution of Ext.P3 Trust Deed permission
of authorities should have been obtained. In view of the facts obtained
in this case, as detailed above, I am of the view that merely because
the school established by late Sri.Ittoop in the year 1940 and for its
governance and administration a Trust was formed as per Ext.P3
registered deed dated 20.4.2001 could not be a reason for canvassing
the point that the appointment against the Manager of the school in
terms of the said Trust Deed could be approved only in case bye-laws
in consonance therewith are framed and obtained approval from the
DEO. The provisions under Rule 2 of Chapter III of the KER is that the
constitution of educational agency in respect of its management must
be subject to the rules approved by the Director or Deputy Director. As
O.P.No.28183/2002 & connected cases 22
already held, the expression `subject to rules’ cannot be construed as
one requiring prior approval and, in fact, it is to be construed only as
one that requires the constitution in accordance with the rules. As
already held, the Director of Public Instruction has as also the
Government made it clear that the affairs of the school should be
managed in accordance with the provisions contained in the registered
deed and making all the orders i.e., Exts.P4 and P5 as also Ext.P9
subject to the final decision in O.S.No.333 of 2001 would make it clear
that it is absolutely unnecessary to subject the same to re-approval.
As held by this Court in M.A.Gangadharan Moosad v. The District
Educational Officer & Ors. (2003(2) KLJ 520) the Trust Deed need
not be subjected to re-approval and in case the same runs counter to
the rules the provisions under the Kerala Education Rules would take
care of such situations at the appropriate stages. In fact, in Ext.P9 also
it was held that the legal existence of the Trust Deed is to be decided
by the Civil Court. That apart, it is to be noted that the Director of
Public Instruction himself as per the earlier order namely, Ext.P4 made
it clear that the affairs of the school should be managed in accordance
with the provisions contained in the registered deed. Therefore, the
said position cannot be altered subsequently by the Director of Public
Instruction by holding that bye-laws governing the Corporate
Educational Agency was not framed with previous permission of the
O.P.No.28183/2002 & connected cases 23
Director of Public Instruction. The finding in Ext.P9 that as per
Government Order dated 15.7.2002 viz., Ext.P5 the Government found
that previous permission of the Director of Public Instruction has not
been obtained before the Trust Deed was executed also cannot be
sustained in the facts and circumstances of the case. There is no legal
basis for the contention that Ext.P3 Trust Deed cannot govern the
affairs of the management of the school in the light of Ext.P4 order
passed by the Director of Public Instruction and also Ext.P5 order by
the Government especially in the light of Ext.P6 judgment in
O.S.No.333 of 2001. As already noticed, in O.S.No.333 of 2001 it was
held that the Trust Deed is binding on the fifth respondent as well.
When that is the position in O.S.No.333 of 2001, in the light of Exts.P4
and P5 I am of the view that the findings in Ext.P9 cannot be sustained.
Therefore, Ext.P9 is liable to be interfered and accordingly it is set
aside. The rights of the parties namely, the petitioner and respondents
4 and 5 to the managership of the school is governed by Clauses 5 and
6(b) of Ext.P3 Trust Deed dated 20.4.2001. The same reads thus:-
“Clause 5: One among the trustees shall be the
managing trustee of the Trust and the managing trustee
in consultation with other Trustees shall administer the
day to day functions of the Trust. One among the
Trustees by rotation, shall hold the office of the
Managing Trustee for a period of two years, Sri. M.I. Jose
shall hold the office initially for one year, followed by Sri.
M.I. Andrew, Sri.M.I. Pauly for two years each and then
again Sri. M.I Jose for two years and there after the
period shall be two years without change for every one.
O.P.No.28183/2002 & connected cases 24
Clause 6b: The Managing Trustee will function as the
Manager of the Schools for all purposes as is mentioned
in the Kerala Education Act & Rules or any other Acts. A
person shall automatically cease to be the manager, the
moment he ceases to be the Managing Trustee without
any further act. The new Managing Trustee shall be
deemed to have become the Manager of the School, on
his accession to the post of Managing Trustee. The
succession to the post of Managing Trustee shall also be
automatic and on completion of the terms above
specified, the existing Managing Trustee shall be
deemed to have laid down office and the new person
shall be deemed to have succeeded to that post without
any further act. The new Managing Trustee shall then
intimate the authorities concerned about the change of
Manager. Any further communications to the authorities
by the old Managing Trustee shall be void and shall not
be acted upon. The selection and appointment of
teaching/non teaching and other staff shall be done by
the Manager only with the written concurrence of the
other two trustees and if such concurrence is not
obtained such appointments shall be void. In the matter
of such appointments, preference shall be given to the
lineal descendant of the Trustees or the spouses of such
lineal descendants, if they are otherwise qualified for
that post in all respects and apply for the same.”
In the light of Ext.P6 judgment, the affairs of the management of the
school have to be governed by Ext.P3 Trust Deed. As already noticed,
as per interim order dated 11.1.2001 taking note of the provisions
under the Trust Deed dated 20.4.2001 this Court passed an interim
order. Going by Clause 5 of the Trust Deed the fifth respondent was
held office initially for one year followed by the fourth respondent and
then the petitioner for two years each and then again the fifth
respondent for two years and thereafter the period shall be two years
without change for every one. By virtue of the interim order the fourth
O.P.No.28183/2002 & connected cases 25
respondent was permitted to function as Manager of the school for two
years from 6.2.2009 and the petitioner could function as the Manager
for the next two years from 7.2.2011. However, it was held
considering the fact that the fifth respondent had continued as Manager
of the school in excess of the permissible period of one year in terms of
Ext.P3 Trust Deed dated 20.4.2001. As per the interim order, it was
found that the fifth respondent continued to be the Manager till
6.2.2009 and therefore, it was ordered thereunder as follows:
5. Accordingly, I pass the following interim
order:
After deducting the one year from 20.1.2004 (sic
20.4.2001) from the total period during which
first respondent was in office as manager in the
first instance, for the balance period the
petitioners in WP(c).No.31062 and 32541 of
2009 shall be the manager by rotation and
thereafter the three sons shall hold the office of
the manager of the school for two years each by
rotation. It is pointed out that despite order
dated 29.11.2008 the first respondent continued
to be the manager till 06.02.2009. The
petitioner in WP(c).31062/09 shall continue to
be the manager for two years from 6.02.2009.
From 7.2.2011, the third son Sri. M.I. Pauly
would be the manager for the next two years.
Then again Sri.M.I. Andrews would be the
manager for another two years and that process
would continue till the excess period during
which the first respondent was in office as
manager is completely exhausted. Thereafter
the three sons would be manager for every two
years starting from Sri.M.I.Jose. This is subjectO.P.No.28183/2002 & connected cases 26
to final orders to be passed in the writ petitions.
Needless to say this would be subject to orders
to be passed by Civil Court in the appeal filed
against Ext.P7 judgment of the Sub Court,
Ernakulam.”
The interim order dated 11.1.2010 was made subject to final orders in
these writ petitions.
15. I am of the view that since as per Ext.P6 judgment
Ext.P3 Trust Deed dated 20.4.2001 found as valid and having permitted
operation of the same i.e., with respect to the tenure of managership
there is no point in making any alteration with respect to the terms and
conditions of Ext.P3 Trust Deed making the fifth respondent eligible to
managership only after exhaustion of the excess period during which he
has held the post of Manager would be nothing but alternating the
terms and conditions in Ext.P3 and therefore, I am of the view that so
long as Ext.P3 Trust Deed was found as valid by the Sub Court,
Ernakulam as per Ext.P6 judgment and it is ordered to be operated, it
should be operated strictly in terms of the terms and conditions in
Ext.P3. True that, the fifth respondent has already functioned as
Manager since the execution of Ext.P3 Trust Deed dated 20.4.2001
much more in excess than the permissible functional period. I am of
the view that order in the interim order dated 11.1.2010 permitting the
fourth respondent to function as the Manager of the school for two
O.P.No.28183/2002 & connected cases 27
years from 6.2.1009 on expiry of his term permitting the petitioner to
function as Manager for next two years from 7.2.2011 is liable to be
made absolute. I am of the view that going by the terms and
conditions of Ext.P3 Trust Deed the next turn for managership should
be that of the fifth respondent and therefore, he would be the Manager
for the next two years since expiry of the term of managership of the
petitioner i.e., two years from 7.2.2011. Thereafter, the petitioner and
respondents 4 and 5 have to function as the Manager of the school for
every two years strictly in terms of the terms and conditions in Ext.P3
Trust Deed. It is ordered accordingly. Admittedly, the fifth respondent
has taken up Ext.P6 judgment in appeal as A.S.No.20 of 2009 before
the District Court, Ernakulam. Therefore, it is made clear that the
directions in this judgment would be subject to the orders to be passed
in A.S.No.20 of 2009 by the District Court, Ernakulam.
All these writ petitions are disposed of accordingly.
Sd/-
C.T.RAVIKUMAR
Judge
TKS