Babu Paul Perumpillil v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE THE AG.CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **TUESDAY, THE 2ND DAY OF SEPTEMBER 2014/11TH BHADRA, 1936** **WA.No. 1679 of 2008 ( )** **---------------------------------AGAINST THE JUDGMENT IN WP(C) 3270/2008 OF THIS HONOURABLE COURT DATED 05-08-2008** **------------------** ## **APPELLANT/PETITIONER :** **---------------------------------------** **BABU PAUL PERUMPILLIL, S/O.LATE P.M.PAILY PILLAI, CORPORATE MANAGER ST.PETER'S HIGH SCHOOL & TRAINING SCHOOLS KOLENCHERY.** ## **BY ADV. SRI.GEORGE POONTHOTTAM** ## **RESPONDENTS/RESPONDENTS :** **-------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DISTRICT EDUCATIONAL OFFICER, ALUVA.** **3. SRI.POULOSE P. KUNNATH, KUNNATH HOUSE, AIKKARANADU SOUTH VILLAGE, KUNNATHUNADU TALUK ERNAKULAM DISTRICT.** **4. SINDHU K.T., PRINCIPAL IN CHARGE, ST. PETERS VOCATIONAL HIGHER SECONDARY SCHOOL KOLENCHERRY.** **R1 & R2 BY GOVT. PLEADER SRI. VIJU THOMAS R3 BY SENIOR ADOVATE SRI.M.K.DAMODARAN R3 BY ADVS. SRI.N.SUKUMARAN** **SRI.S.SHYAM** **SRI. P.K. VIJAYAMOHANAN** **R4 BY SENIOR ADVOCATE SRI.KURIAN GEORGE KANNAMTHANAM R4 BY ADVS. SRI.TONY GEORGE KANNANTHANAM** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24-07-2014, ALONG WITH WPC. 1679/2008 & CONNECTED CASES, THE COURT ON 02-09-2014 DAY DELIVERED THE FOLLOWING:** **Mn** ## **ASHOK BHUSHAN, Ag.CJ & A.M.SHAFFIQUE, J.** ## *** * * * * * * * * * * * *** W.A.Nos.1679 of 2008 & 1724 of 2008, W.P.C.Nos.11295 of 2012 & 14722 of 2014 ---------------------------------------Dated this the 2[nd] day of September 2014 ## **J U D G M E N T** ## Shaffique,J W.A.Nos.1679/2008 and 1724/2008 are filed against the common judgment dated 05/08/2008 in W.P.C.Nos.3270 and 3441 of 2008. The writ petitions were filed challenging Government Order G.O.(Rt)No.484/08/G.Edn. dated 24/01/2008 by which the Government appointed Sri.Paulose P.Kunnath as Manager of the Schools under St.Peter's and St.Paul's Church, Kolencherry till elections are conducted in accordance with the Constitution of the Church as approved by competent Courts of Law. The impugned order was passed after considering the rival claims of two factions of the Church passing separate resolutions appointing separate Manager for the Educational Institutions. The learned Single W.A.No.1679 of 2008 & connected cases 2 Judge observed that since appointment of the Manager of a school falls within Chapter III of the Kerala Education Rules, 1959 (hereinafter referred to as 'KER'), the Government has no jurisdiction to exercise the revisional power under Rule 92 of Chapter XIVA of KER, and an agreement of parties or a direction issued by the High Court, will not confer jurisdiction on the Government. Hence the learned Single Judge relegated the parties to the Director of Public Instructions (for short 'DPI') for consideration of the appeal filed by Sri.Paulose P.Kunnath and further directed the Government to transfer the revision filed before it by Sri.Babu Paul to the DPI to treat the same as an appeal under Rule 4 Chapter III of KER. Further DPI was directed to take a final decision in the matter. 2. The appeal to be considered by DPI, was against an order passed by the District Educational Officer (for short 'DEO') who, by its order dated 01/08/2007, rejected the claim of the rival factions for appointment of Sri.Paulose W.A.No.1679 of 2008 & connected cases 3 P.Kunnath or Sri.Babu Paul as Manager of the school. 3. W.P.C.No.11295 of 2012 is filed by St.Peter's High School and Training Schools represented by its Corporate Manager seeking for a direction to the DEO to approve the election and appointment of the petitioner as Manager of educational institutions run and administered by St.Peter's and St.Paul's Orthodox Syrian Church, Kolencherry and for other consequential reliefs. 4. The facts involved in the above writ petition would disclose that, in a meeting held by the Parishioners on 25/03/2007, elections have been conducted as per the 1934 Constitution. Sri.Babu Paul was elected as the Manager. Since the said appointment was not approved by the DEO on account of the rival claim by the other faction namely Jacobite Syrian Christians (for short 'JSC faction') the said controversy ultimately resulted in the judgment of the learned Single Judge in W.P.C.No.3270/2008 and 3441/2008 which is the subject matter in the appeals aforesaid. There W.A.No.1679 of 2008 & connected cases 4 was an interim order in the appeal staying further proceedings and therefore DPI could not pass any order. 5. According to the petitioners, various disputes had arisen in relation to the administration of the church. The JSC faction filed a suit as O.S.No.43/2007 before the District Court, Ernakulam seeking a declaration that the Church and its assets including the educational institutions are liable to be administered only in accordance with the terms of 'Udampadi' No.31 dated 13/12/1088 (M.E). An alternate relief was sought for to settle a scheme for the administration of the church, its assets and institutions and other consequential reliefs. Ext.P6 is the judgment of the District Court in which it is found that the church is to be governed by the terms of 1934 Constitution. An appeal was filed as RFA No.589/2011 before the High Court and stay of operation of the judgment was declined by a Division Bench as per order dated 06/09/2011. The appeal was dismissed as per judgment dated 04/10/2013. W.A.No.1679 of 2008 & connected cases 5 6. It is further contended that since the period for which office bearers were elected expired, a meeting of the parishioners was held on 01/04/2012 and while electing all other office bearers, Manager of the school was also elected. Ext.P8 is the minutes of the meeting. By Ext.P8, Rev.Fr.C.M.Kuriakose is appointed as the Manager. Pursuant to Ext.P8 the Church issued Ext.P9 letter to the DEO informing that the church in its meeting has elected Fr.C.M.Kuriakose as the new Corporate Manager of the St.Peter's Vocational and Higher Secondary School and Teachers Training School. Election of the Manager has been conducted in accordance with the School Constitution which is approved by the education department and therefore request was made to approve the aforesaid person as the Manager for a period of five years. Since no orders have been passed by the DEO, approving the Manager in terms of Chapter III of KER, this writ petition is filed seeking the relief as prayed for. 6 W.A.No.1679 of 2008 & connected cases 7. It is inter alia contended that when the administration of church and its assets and institutions shall be in terms of 1934 Constitution, all procedure for election has to be conducted only by the parishioners who approve the 1934 constitution and once a decision has already been taken, the DEO is bound to consider the same and appropriate orders are to be passed approving the Manager. 8. Counter affidavit is filed by Sri.Paulose P.Kunnath who is impleaded as additional respondent. He contended that fresh election could not have been held without validating the approval as per the previous election which is not done by the DPI. He also challenges the competency of the petitioner to file the writ petition. He also contended that SLP No.32238 of 2013 is filed by the plaintiffs in the suit before the Hon'ble Supreme Court against the dismissal of RFA No.589/2011. It is submitted that a proper meeting could be conducted only after proper announcement in the Church on three consecutive Sundays and therefore without W.A.No.1679 of 2008 & connected cases 7 observing such a method, the petitioner cannot claim any relief. 9. I.A.No.8049/14 is filed by three parishioners, Sri.Cherian @ Cherian, Sri.Paulose and Sri.Babu.V.P who are sought to be impleaded in the case. According to them, no meeting was held as contended by the petitioner. The church was closed in 11/07/2005 by virtue of the directions issued by the Sub Divisional Magistrate, Aluva under Section 144 of the Cr.P.C. When a list of parishioners were prepared in O.S.No.19/1980, there were about 3,496 members who were eligible for voting. The list would have undergone some changes, but without issuing notice to all the members of the parish, it was not possible for the Church to have conducted the election. The impleading applicants submits that their endeavour was to see that the church and its institutions are administered in a dignified manner as per the Bye-laws and 1934 Constitution. According to them, meeting was not held with notice to all the parishioners and W.A.No.1679 of 2008 & connected cases 8 therefore no right can flow from the decision taken in the said meeting. 1O. W.P.C.No.14722/2014 is filed by Fr.C.M.Kuriakose claiming to be the elected Corporate Manager in respect of the very same school seeking to quash Ext.P6. Ext.P6 is an order issued by the DEO directing the teacher-in-charge of St.Peter's H.S.S.Kolencherry not to do any repair works in the school since the JSC faction had intimated their concern in the matter and to avoid a conflict between the two factions, such a direction had been issued. The facts involved would show that when an attempt was made by the Manager of the school to change the roofing of the school auditorium and make necessary repairs for the auditorium building, the 2[nd] respondent and certain others obstructed the same. Petitioner sought intervention of the police, but the police did not intervene in the matter. Petitioner approached the RDO who directed the DEO to take appropriate action in the light of prevailing court orders. W.A.No.1679 of 2008 & connected cases 9 Ext.P5 dated 05/06/2014 is the communication issued by the RDO to the DEO which resulted in Ext.P6 order. According to the petitioner, the JSC faction has no right to create any such obstruction, especially in the light of the judgment of the District Court in O.S.No.43/2007 as confirmed in appeal and therefore the DEO was expected to pass an order in the light of the court judgments. But, by issuing Ext.P6, petitioner is prevented from repairing/renovating the auditorium. 11. Counter affidavit is filed by the 2[nd] respondent inter alia stating that the petitioner is not the Manager of the school. He has no right to exercise the functions of the Manager. The auditorium of the school did not have any damages which required repairs and therefore there is no reason to interfere with Ext.P6 order as the same had been issued only to avoid any confrontation among the two factions of the community, the parishioners, who have a say in the matter. W.A.No.1679 of 2008 & connected cases 10 12. Since the issues involved in these appeals and the writ petitions relate to the management of a school and the intervention of the DEO, it was decided to hear and dispose of the matter by way of a common judgment. That apart, the learned Single Judge of this Court had referred the writ petitions to this Court taking into account the nature of dispute that had arisen between two factions and the conflicting stand taken by them. 13. As far as the appeals are concerned, the direction issued by the learned Single Judge was stayed by this Court, as a result of which DPI was not in a position to pass final orders. That was an instance where there was dispute between two factions in regard to the Manager selected by either of the factions. Since the period of appointment of the manager was five years, on account of expiry of the said period, nothing may turn out even if the DPI considers the issue again and it will only be an empty formality. That apart, the petitioner in W.P.C.No.11295/2012 claims that W.A.No.1679 of 2008 & connected cases 11 election was conducted on 01/4/2012 and they have appointed a Manager as per the rules approved by DPI. 14. Having regard to the aforesaid factual situation, the short issue to be considered in W.P.C.No.11295/2005 is whether a direction, as sought for, can be issued to the DEO. The answer to the above issue will substantially decide the controversy involved in the appeals and writ petitions. 15. The controversy involved in these cases has a long history. As far as the rival claims are concerned, the same has been substantially settled by the judgment of this Court in R.F.A.No.589/2011 decided on 04/10/2013 which had arisen against the judgment of the District Court in O.S.No.43/2000, and reported in **Varghese v. St.Peter's and St.Pauls Syrian Orthodox Church** _[2014 (1) KLT Suppl.86 (KER)]_ . 16. The following factors are revealed from the said judgment. W.A.No.1679 of 2008 & connected cases 12 i) O.S.No.43/2007 is filed under Section 92 of the Civil Procedure Code for administering the church, which, according to the plaintiff, was a public trust of a religious nature. The plaintiffs form part of Patriarch faction whereas the contesting defendants were commonly called Orthodox faction. ii) The plaintiffs claimed that the church and its assets were managed by an Udambadi of 1930. On account of the factional dispute, a Division Bench of this Court in the judgment dated 08/12/2006 in W.A.No.47/2006 directed that the key of the church will remain with the Sub Divisional Magistrate for a period of 15 days and thereafter the matter will be decided by the Civil court. iii) The relief sought in the suit O.S.No.43/2007 was to declare that the first defendant church, its assets including the educational institutions are liable to be administered only in accordance with the terms of Udambadi dated 13/12/1088 (M.E) or in the alternative, to settle a scheme for W.A.No.1679 of 2008 & connected cases 13 the administration of the church, its assets and its institutions and to conduct election to the managing committee and governing body of institutions, by appointing a receiver. iv) The Orthodox faction contended that, after the framing of the Constitution on 26/12/1934, known as the 1934 Constitution, all 'udambadies' inconsistent with the provisions of the Constitution are void. The parish assembly had also resolved to adopt 1934 Constitution and it was being administered accordingly thereafter. The 1934 Constitution was upheld by the Supreme Court in **P.M.A Metropolitan v. Moran Mar Thoma and Others** [AIR 1995 SC 1]. v) In the judgment in O.S.No.43/2007, it is held that when the Supreme Court has declared that the 1934 Constitution is valid in **P.M.A.Metropolitan's** case (supra), the plaintiff cannot seek any relief, as prayed for. The suit was dismissed and the third defendant in the case was W.A.No.1679 of 2008 & connected cases 14 declared to be entitled to get the keys of the church. vi) Plaintiffs in O.S.No.43/2007 filed appeal as R.F.A. No. 589/2011 before this Court and the Division Bench in judgment dated 04/10/2013 formulated the following questions at paragraph 42 of **Varghese's** case (supra): “ _42. The following main points arise for consideration:_ _(a) Whether Ext.A1 Udambady holds the field as far as the affairs of the first respondent Church and the alternate prayer to frame a scheme is sustainable; and_ _(b) Whether the 1934 Constitution will govern the affairs of the first respondent Church and whether the same has been accepted and implemented already, as contended by defendants 1, 3 and 9.”_ Finally it is held at paragraph 59, 89 and 103 as under: _"59. In the light of the various factors pointed out above and due to the absence of any reliable and cogent evidence on the part of the plaintiffs that the affairs of the Church were being administered as per Ext.Al Udambady, upto 1980, when the_ W.A.No.1679 of 2008 & connected cases 15 _disputes erupted leading to the closure of the Church, the denial of the reliefs sought for by the appellants/plaintiffs in R.F.A. No.589/2011 as well as the appellants in R.F.A.NO.655/2011, is perfectly justified.”_ _“89............What is clear from the reliefs sought for, is that they are only seeking for enforcement of Ext.Al Udambady as regards the administration of the Church or in the alternative, to frame a scheme for the administration. In that view of the matter, according to us, there is no error committed by the trial court, by relying upon 1934 Constitution and the finding relying upon the decision of the Apex Court in P.M.A. Metropolitan's case (supra).”_ _"103. As we have already found, the truce after 1959 in the entire Church brought in unity between two factions and even in this case P.W.2 also admitted of such a truce and in the light of the documents produced by the third defendant including Exts.B4, B5 and B5(a) as well as the declaration given by the first plaintiff along with Shri Cheria Pathrose, declaring allegiance to the 1934 Constitution, produced as Ext.B8, the_ W.A.No.1679 of 2008 & connected cases 16 _conclusion arrived at by the trial judge in favour of defendants 1, 3and 9 cannot be said to be wrong or unsustainable on any ground.”_ 17. Sri. George Poonthottam, the learned counsel for the petitioners referred to the Constitution approved by the DPI in regard to the management of the school. The school is to be managed by virtue of the constitution approved by the general body on 23/10/1963. Thereafter, certain amendments were made as per decision taken by the general body on 11/10/1964. Ext.P5 in W.P.C.No.3441/2008 is the Constitution approved by the DPI as per order dated 22/10/1964 (Ext.P6). Clause (3) and (4) of Ext.P5 indicates that there shall be a management board called St.Peter's High School and Training School Management Board comprising of 5 members elected by parish assembly and one ex-officio member. The Head Master of the school shall be the ex-officio member of the Board. Clause (6) further indicates that the term of office of the board shall be five W.A.No.1679 of 2008 & connected cases 17 years. Clause 11 indicates that one among the board members shall be elected as Manager who shall be the Manager as provided under Rule 1 of Chapter III of KER. 18. Sri.N.Sukumaran, learned senior counsel appearing on behalf of the contesting respondents also argued that a meeting could be convened only after complying with the procedure and notice to all the parishioners. That apart, the right of the petitioner to manage the school was not the subject matter in the suit and appeal. Further, unless the DPI passes an order as directed by the learned single Judge, the meeting alleged to be held on 01/04/2012 is in futility. 19. It is argued by Sri. P.Ravindran, learned senior counsel appearing on behalf of the petitioners in I.A.No.8049/2014 that no such meeting has been convened on 01/04/2012. Reference is made to Ext.R3(a) to contend that voters list prepared by the Receiver in O.S.No.19/1980 would show that, at the relevant time there was 3486 W.A.No.1679 of 2008 & connected cases 18 voters. Hence, until a proper election is held after notice to all parishioners, the minutes of meeting produced cannot form the basis for claiming any right. 20. Sri.S.Sreekumar, learned senior counsel argued that there is no necessity for the DPI to pass any order as directed in the impugned judgment, as the period for which the Managers were appointed by either group has already expired. Heard the learned Government pleader as well, who supported the stand taken by the educational authority. 21. There is no dispute regarding the existence of the Constitution prepared for management of the educational institution, which is approved by the DPI. In R.F.A.No.589/2011, this Court, while confirming the judgment in O.S.No.43/2007 has declared that the church is governed by the 1934 Constitution and the claim of the rival faction has been negatived in respect of managing the church as well as its institutions. Therefore, the General Body of the parishioners were entitled to elect the Manager. W.A.No.1679 of 2008 & connected cases 19 If they have done so, the duly elected Manager is entitled to manage the institutions. Once such a decision has been taken based on the Constitution of the school and forwarded to the DEO, the said authority is bound to consider the request of the petitioner. In regard to the challenge to the validity of the meeting held on 01/04/2012, the DEO has no say in the matter. His jurisdiction is only to verify whether the appointment of Manager is in terms with the constitution of the school as approved by the DPI. If any of the contesting respondents or parishioners has a case that the meeting was not validly held, they cannot interdict the proceedings of educational authorities. They will have to seek their remedies before a Civil Court. 22. In the judgment under appeal in W.A.Nos.1679 & 1724 of 2008, the learned Single Judge had directed DPI to consider the claims of both the factions. Since the factional dispute with regard to the management of the institution is virtually settled by the judgment in R.F.A.No.589/2011, there W.A.No.1679 of 2008 & connected cases 20 is no necessity for the DPI to consider the matter afresh, especially in view of the fact that the period for which the election has been conducted has expired in 2012. That apart, the parishioners has conducted a general body meeting in which Manager has been elected on 01/04/2012, which is pending approval before the DEO. Therefore, it is clear that no further orders are required to be passed by the DPI as directed by the learned Single Judge. 23. In W.P.C.No.11295/2012, we accept the submission of the petitioner that Fr.C.M.Kuriakose has been elected as the Manager of the educational institutions, in the meeting held on 01/04/2012, in regard to which approval is pending before the DEO. The DEO is under obligation to consider the approval of the Manager in terms of Chapter III of KER. However, it is made clear that if any of the respondents in W.P.C.No.11295/2012 or parishioners has a case that the Board of Management has not been elected in a duly constituted meeting of the parishioners, their right to W.A.No.1679 of 2008 & connected cases 21 approach the civil court is reserved. 24. In W.P.C.No.14722/2014, the DEO was not justified in directing the petitioners to repair the auditorium building of the Church on the mere assumption that it is opposed by the other faction. As already indicated, management of the school vests with the Manager. It is for the Manager and the Board of Management to decide the activities relating to the school which includes repair of the buildings. That apart Ext.P4 photographs clearly indicate that the school was intending to replace the roof covering, which is highly required. The DEO has no authority to interfere with such managerial functions. Hence Ext.P6 is liable to be quashed. For the reasons stated above, these cases are disposed as under: (i) W.A.Nos.1679 & 1724 of 2008 are disposed making it clear that no further orders are required to be passed by the DPI as directed by the learned Single Judge. & connected cases 22 W.A.No.1679 of 2008 (ii) W.P.C.No.11295 of 2012 is allowed. The 1[st] respondent is directed to pass appropriate orders in Ext.P9 application within a period of one month from the date of receipt of a copy of this judgment. (iii) W.P.C.No.14722 of 2014 is allowed quashing Ext.P6. (sd/-) **(ASHOK BHUSHAN, ACTING CHIEF JUSTICE)** (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr W.A.No.1679 of 2008 & connected cases 23 W.A.No.1679 of 2008 & connected cases 24