A.P. Unnikrishnan v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`FRIDAY, THE 25[TH] DAY OF FEBRUARY 2022 / 6TH PHALGUNA, 1943`** ## **`WP(C) NO. 22415 OF 2021`** ## **`PETITIONER:`** ``` A.P.UNNIKRISHNAN AGED 71 YEARS S/O.RAMAKRISHNAN, RESIDING AT AAKKATHEYAM PARAMBIL HOUSE, MUNDANATTUKARA DESOM, KOTHAKURISSI AMSOM, PAVUKONAM.P.O, OTTAPALAM TALUK, PALAKKAD DISTRICT-679522. ``` ``` BY ADVS. T.MADHU C.R.SARADANAN SHAHID AZEEZ RENJISH S. MENON ``` ## **`RESPONDENTS:`** ``` 1THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2THE DIRECTOR, GENERAL EDUCATION DEPARTMENT, JAGATHY, THIRUVANANTHAPURAM-695014. 3THE DEPUTY DIRECTOR OF EDUCATION CIVIL STATION, MENATHU PARAMBU, KUNNATHURMEDU, PALAKKAD DISTRICT-678001. 4THE ASSISTANT EDUCATIONAL OFFICER OTTAPALAM, PALAKKAD DISTRICT-679101. 5MURALEEDHARAN, AGED 62 YEARS SON OF LATE RAMAKRISHNAN MASTER, AAKHATHEYAMPARAMBIL, ``` ``` 2 ``` ## **`WP(C) NO. 22415 OF 2021`** ``` MUNDANATTUKARA DESOM, KOTHAKURUSSI AMSOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT-679522. ``` ``` 6INDIRA, AGED 70 YEARS W/O.LATE DR.C.M.SREEDHARAN, INDUSHREE GOKULAM COMPOUND, PALATTU ROAD, OTTAPALAM.P.O, PALAKKAD DISTRICT-679101. 7URMILA, AGED 59 YEARS W/O.SREEDHARAN, SREESAILAM, KADALUNDI, CHALIYAM.P.O, KOZHIKODE DISTRICT-673301. 8MADHUSOODHANAN, AGED 57 YEARS SON OF THE RAMAKRISHNAN MASTER, AAKHATHEYAMPARAMBIL, MUNDANATTUKARA DESOM, KOTHAKURUSSI AMSOM, OTTAPALAM TALUK, PALAKKAD DISTRICT-679522. 9SHYLAJA, AGED 56 YEARS W/.DR.SOMANATHAN, SREESAILAM, KADALUNDI, CHALIYAM.P.O, KOZHIKODE DISTRICT-673301. ``` ``` 3 ``` ## **`WP(C) NO. 22415 OF 2021`** ``` 10BRIJESH, AGED 44 YEARS SON OF RAVEENDRAN, SREESAILAM, KADALUNDI, CHALIYAM.P.O, KOZHIKODE DISTRICT-673301. 11NISHA, AGED 34 YEARS DAUGHTER OF RAVEENDRAN, SREESAILAM, KADALUNDI, CHALIYAM.P.O, KOZHIKODE DISTRICT-673301. BY ADVS. P.GOPAL GEORGE ABRAHAM ``` ``` JIMMY GEORGE G.P ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 22415 OF 2021 ``` ``` 4 ``` ## **JUDGMENT** Order dated 29.09.2021 Ext.P7 of the Secretary Government, General Education Department, Thiruvananthapuram appointing 4[th] respondent ie., Assistant Educational Officer, Ottappalam as the Manager of the school till the resolution of the dispute regarding the ownership on behalf of the petitioner who had been, after the demise of his father from 1983 onwards, discharging the duties of Manager of the school, is decided. One Sri. A.P.Ramakrishnan was Manager of the ALP School, Mundanattukara. On 07.06.1983 he died and on the death Sri.A.P.Unnikrishnan the petitioner was appointed as the Manager on 08.06.1983 which was approved by the Government vide proceedings dated 14.12.1984 Ext.P1 and continued to discharge the duties. The 5[th] respondent, brother of the petitioner preferred a civil suit No.268/2014 for partition of the property left by Sri.A.P.Ramakrishnan and vide preliminary decree dated 07.09.2020 shares were determined. The ``` WP(C) NO. 22415 OF 2021 ``` ``` 5 ``` aforementioned preliminary decree is under challenge before the Lower Appellate Court vide Appeal No.71/2020 and vide order dated 03.12.2020 in Interim Application No.1/2020 there is stay of judgment and the preliminary decree. In the interregnum 5[th] respondent submitted an application to the Additional Director for removal of the petitioner’s appointment as Manager. Matter reached this Court and as per the directions of this Court, Government was directed to adjudicate the dispute. The Director, General Education Department vide order dated 27.08.2020 appointed Assistant Educational Officer, Ottappalam as Manager of the school, which was affirmed by the Secretary, Education Department in revision, till the resolution of the dispute. 2. Sri.Shahid Azeez, learned counsel appearing on behalf of the petitioner submitted that the impugned order is not sustainable in the eyes of law as none of the conditions prescribed under Section 14 of the Kerala Education Act are ``` WP(C) NO. 22415 OF 2021 ``` ``` 6 ``` invokable for appointing 4[th] respondent. There has not been a case of negligence by the petitioner to perform any duties imposed under this Act or the Rules or violation of public interest. In support of the aforementioned contention, relied upon the case laws in **Usman Kurikkal O.V.** v. **State of Kerala and Others** [2011 (2) KHC 867] and _**Kuthuparamba Educational Society, Kannur and Others**_ v. _**State of Kerala and Others**_ [2020 (4) KHC 788]. 3. Respondents 6 to 9 have already vide separate sale deed sold their share in favour of the petitioner. Even if it is a joint property, petitioner is in joint and settled possession and cannot be disturbed through the manner and mode when the matter, at the instance of respondent No.5, is pending in the Civil Court. The status quo order should have maintained instead of replacing the petitioner as Manager by appointing the 4[th] respondent. The powers of the Manager are only to manage the school and appoint certain persons. Nothing beyond, as the ``` WP(C) NO. 22415 OF 2021 ``` ``` 7 ``` fees is being collected by the Government. There is no fiscal jurisdiction. Even as per the final decree by determining the share long and settled possession has to be taken into consideration. But that would be in the domain of the Trial Court as and when an application for final decree is made after the adjudication of the appeal preferred against the preliminary decree. 4. Sri.P.Gopal, learned counsel representing the 5[th] respondent submitted that no doubt the petitioner had continued to discharge the duties of Manager from 1983 on account of demise of his father but without framing the byelaws had appointed his close relatives ie., son, daughter and daughter-in-law as the teachers of the school that caused disgruntlement amongst the other co-owners necessitating them to seek the partition in accordance with law. The Trial Court vide judgment and decree dated 07.09.2020 determined the shares. It is only thereafter an application was moved which resulted ``` WP(C) NO. 22415 OF 2021 ``` ``` 8 ``` into appointment of the 4[th] respondent as the Manager. After the demise of the owner of the school as manager it cannot no longer continue to enjoy the status of individual agency but has to be a corporate agency in terms of provisions of Rule 2(1) of Chapter III of Kerala Education Rules and as per Rule 2 of Chapter III the bye-laws have to be framed subject to the approval of the education department. In support of aforementioned provisions relied upon the Division Bench judgment of this Court in _**Somanatha Pillai**_ v. _**State of Kerala**_ [2007 (1) KLT 127] that it is imperative for the Manager after the demise of the owner of the school legal representatives continue in the management and it would be termed as corporate educational agency and will not be deemed to be an individual educational agency. 5. Sri.George Abraham, learned counsel representing the respondents 10 and 11, the children of one of the sisters of the siblings also adopted the arguments submitted by ``` WP(C) NO. 22415 OF 2021 ``` ``` 9 ``` Sri.P.Gopal by relying upon the provisions of Rules and urged that the order impugned, is the most appropriate and innocuous, would not change the working of the school till the adjudication of the partition suit. 6. I have heard the learned counsel for the parties and appraised the paper book. 7. Conceded position as per the facts narrated above which emerges is that on account of the death of father Sri.A.P.Ramakrishnan Petitioner Sri.A.P.Unnikrishnan from 08.06.1983 had been discharging the duties of the Manager of ALP School, Mundanattukara, which was approved by the 4[th] respondent as per the order dated 14.12.1984 Ext.P1. The position of the Manager which sailed in a smooth manner had become turbulent only in 2010 when Civil Suit No.368/2010 at the instance of the 5[th] respondent qua against the other siblings was filed seeking partition of the suit property resulting into a decree dated 07.09.2020. The decree is subject to stay as per ``` WP(C) NO. 22415 OF 2021 ``` ``` 10 ``` the order dated 03.12.2020 in I.A.No.1/20 in Appeal No.71/2020. The order impugned is passed before the Lower Appellate Court had taken the cognizance of appeal and at that relevant point of time preliminary decree was passed. It is in that account the 1[st] respondent by striking out the equities till the resolution of the dispute appointed 4[th] respondent as manager. Parties are ad idem that the role of the manager is only having the power of appointment as the fees is collected by the Government and during the interregnum, had appointed son, daughter and daughter-in-law as teachers. The appointment has to be also subject to the approval of the Government. The Government would take call whether they had the actual qualifications to hold such post, but that cannot be a ground for removal. No doubt at the time of framing of final decree for devolving the ownership, the share/ possession of the one of the co-sharer has to be taken into consideration which at this point of time cannot be adjudicated and it would be in the ``` WP(C) NO. 22415 OF 2021 ``` ``` 11 ``` domain of the Court as and when the application for final decree is submitted by any of the co-sharers/owners. ## 8. Section 14 of the Act reads as under: " **14. Taking over management of schools.** (1) Whenever it appears to the Government that the Managers 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 subsection (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 subsection (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 cause therefor, and where the Government are satisfied of the ``` WP(C) NO. 22415 OF 2021 ``` ``` 12 ``` cause so shown, they shall 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. (5) Where any school is taken over under this section, the Government shall pay to the person or persons interested such rent as may be fixed by the Collector, having regard to the rates of rent prevailing in the locality for similar properties. Provided that where any property has been acquired, constructed, improved or maintained for the purposes of the school with the aid given or by appropriation or diversion of any grant made by the Government the rent shall be fixed by the Collector after taking into account the amount of such aid or grant. (6) Where any school is taken over under this Section, the Government may run the school affording any special educational facilities which the school was affording immediately before such taking over. (7) Any person aggrieved by an order of the Collector fixing the rent under sub-section within (5) may, in the prescribed manner appeal to the District Court whose jurisdiction the school is situated within sixty days from the date of the order and the decision of the Judge shall be final. (8) It shall also be lawful for the Government to acquire the school taken over under this section, if they are satisfied that it is necessary so to do in the public interest in which case ``` WP(C) NO. 22415 OF 2021 ``` ``` 13 ``` compensation shall be payable in accordance with the principles laid down in S.15 for payment of compensation. (9) Nothing in this section shall apply to minority schools." 9. On plain and simple reading of the same, it is evident that none of the conditions had existed giving cause to the Government Education Department to remove the petitioner and appoint the 4[th] respondent. This view of mine is derived from the ratio decidendi culled out in paragraph 11 and paragraph 14 in _**Kuthuparamba Educational Society, Kannur and Others**_ v. _**State of Kerala and Others**_ [2020 (4) KHC 788] the same reads thus: “11. If at all any assets are seen dispossessed or alienated a decision ought to have been taken after affording an opportunity of hearing to those who are in power. There cannot be any doubt over the fact that the society as well as the Manager are supposed to protect the assets and not utilised for personal gains. 14. As pointed by Sri. Asif Ali, learned Counsel for the petitioner, relying on the judgment of this Court in Abdurahiman v. State (1978 KHC 68 1978 KLT 275), Subramanian v. State of Kerala and others (1986 KHC 95 ``` WP(C) NO. 22415 OF 2021 ``` ``` 14 ``` 1986 KLT 359 1986 KLJ 138 ILR 1986 (2) Ker. 563 AIR 1987 Ker. 200: 1986 KLN 244), Parent Teacher Association v. State of Kerala (2000 KHC 156 2000 (1) KLT 804: 2000 (1) KLJ 395: ILR 2000 (2) Ker. 529), in order to invoke S.14 of the Act and take over the management of an aided school, public interest alone is not enough. Neglect on the part of the Manager to perform any of the duties under the Act or the KER is also necessary and any such action shall precede with a show cause notice specifically stating the reasons for invoking S.14 of the Act. It is also held that S.14 has to be invoked only in cases where action under other provisions are not sufficient. In this case no such show cause notice is seen to have been issued. There is no gazette publication also, if it was a matter of emergency.” 10. In the judgment relied upon by the 5[th] respondent in _**Somanatha Pillai**_ (supra) in paragraph 4 the Division Bench found that the question raised before the Division Bench was, on the demise of the single owner who was acting of the manager of the school, whether the legal representative would be termed to be a individual educational agency or corporate agency. The answer by relying upon the provisions Rule 1 of Chapter II was to the effect that it would be termed as a corporate educational agency. Having the domain of a corporate ``` WP(C) NO. 22415 OF 2021 ``` ``` 15 ``` educational agency would not give a cause for change of the manager seat except that under Rule 2 of Chapter III, bye-laws have to be framed which would have been framed had there not been a litigation. Thus the ratio decidendi culled out in **Somanatha Pillai** would not be applicable to the facts and circumstances. The argument of Sri.P.Gopal is hereby rejected. 11. Respondent No.1 did not take into consideration while appointing respondent No.4 as the manager the provisions of Section 14 extracted above. The statute has to prevail and not the wish and desire of the officer as reflected in the impugned order. Not only this, it is a well known fact that from 1983 onwards till 2010 petitioner continued to discharge the duties of the manager and none of the siblings raised any objection at any point of time. Continuation of a manager would not clothe the manager the ownership of the property as in case of the consensus between the parties whoever requires the share would be the owner or through a decree or court of law. ``` WP(C) NO. 22415 OF 2021 ``` ``` 16 ``` Accordingly, the impugned order is not sustainable and hereby set aside. Petitioner is ordered to be appointed as manager and is directed to frame the bye-laws and submit to educational officer for approval as expeditiously as possible. 12. While exercising supervisory power under Article 227 of the Constitution of India, I also direct the First Appellate Court to decide the pending Appeal No.71/2020 as expeditiously as possible within a period of 4 months from the date of receipt of copy of this judgment. Writ petition is disposed off. Sd/- **AMIT RAWAL JUDGE** nak ``` 17 ``` ## **`WP(C) NO. 22415 OF 2021`** ## **`APPENDIX OF WP(C) 22415/2021`** ``` PETITIONER EXHIBITS Exhibit P1 ``` ``` THE TRUE COPY OF THE PROCEEDINGS DATED 14/12/1984 OF THE FOURTH RESPONDENT. ``` ``` Exhibit P2THE TRUE COPY OF THE JUDGMENT AND DECREE DATED 7/9/2020 IN O.S.NO.268/2014 OIN THE FILES OF THE MUNSIFF'S COURT, OTTAPALAM. Exhibit P3THE TRUE COPY OF THE JUDGMENT DATED 21/11/2019 IN W.P.(C)NO.31424/2019 ON THE FILES OF THIS HONOURABLE COURT. ``` ``` Exhibit P4THE TRUE COPY OF THE ORDER DATED 27/8/2020 ISSUED BY THE ADDITIONAL DIRECTOR (ACADEMICS), GENERAL EDUCATION FOR AND ON BEHALF OF THE SECOND RESPONDENT. ``` ``` Exhibit P5THE TRUE COPY OF THE JUDGMENT DATED 9/10/2020 IN W.P.(C)NO.21164/2020 ON THE FILES OF THIS HONOURABLE COURT. ``` ``` Exhibit P6THE TRUE COPY OF THE REVISION PETITION DATED 30.10.2020 FILED BY THE PETITIONER BEFORE THE FIRST RESPONDENT. ``` ``` 18 ``` ## **`WP(C) NO. 22415 OF 2021`** ``` Exhibit P7THE TRUE COPY OF THE ORDER DATED 29/9/2021 PASSED BY THE FIRST RESPONDENT. Exhibit P8THE TRUE COPY OF THE ORDER DATED 3/12/2020 IN I.A.NO.1/2020 IN A.S.NO.71/2020 ON THE FILES OF THE SUB COURT, OTTAPALAM. Exhibit P9THE TRUE COPY OF THE SALE DEED NO.203/09 DATED (3/1/2009 OF OTTAPALAM SRO. Exhibit P10THE TRUE COPY OF THE SALE DEED NO.598/09 DATED 3/2/2009 OF OTTAPALAM SRO. ```