Binushma v. State of Kerala & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 17[TH] DAY OF AUGUST 2022 / 26TH SRAVANA, 1944`** ## **`WP(C) NO. 16133 OF 2019`** ## **`PETITIONER:`** ``` BINUSHMA AGED 37 YEARS D/O. RAFEEKKA BEEVI, BINUSHAM MANZIL, PAVANOOR P.O., PAVANOOR VILLAGE, NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT. ``` ``` BY ADVS. J.R.PREM NAVAZ SHRI.SUMEEN S. ``` ## **`RESPONDENTS:`** ``` 1THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO THE GOVERNMENT EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001. 2THE DIRECTOR, HIGHER SECONDARY EDUCATION WING, HOUSING BOARD BUILDING, THIRUVANANTHAPURAM DISTRICT, PIN-695 001 3THE MANAGER, PANAVOOR PHMKMVHSS (PAMBADY HAJI MOHAMMEDKUNJU MEMORIAL VOCATIONAL HIGHER SECONDARY SCHOOL), PANAVOOR, NEDUMANGAD, THIRUVANANTHAPURAM-695 568. 4THE PRINCIPAL PANAVOOR PHMKMVHSS PAMBADY HAJI, MOHAMMED KUNJU, MEMORIAL VOCATIONAL HIGHER SECONDARY SCHOOL, PANAVOOR, NEDUMANGAD, THIRUVANANTHAPURAM-695 568. ``` W.P. (C) No.16133 of 2019 2 ``` 5ADDL.R5 GEETHANJALI M.S., W/O.ASHISH S. KUMAR, AGED 31 YEARS, RESIDING AT KOPPATHIL VEEDU, PANAYAMUTTOM P.O., PAZHAKUTTY, NEDUMANGAD, THIRUVANANTHAPURAM; IS IMPLEADED AS ADDL. R5 AS PER ORDER DATED 26.05.2022 IN I.A.2/2022 IN WP(C) 16133/2019. BY ADVS. SRI.V.A.MUHAMMED M.C.SINY SRI.M.SAJJAD SMT.ANIMA M, GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P. (C) No.16133 of 2019 3 ## **JUDGMENT** The petitioner has approached this Court seeking issuance of direction to respondents 1 and 2 to consider and dispose of Ext.P3 representation submitted by her and for a further direction to the 3rd respondent not to make any fresh permanent appointment to the permanent post of HSST in the PHMK MVHSS School, Panavoor village, Nedumanagad without considering the eligibility of the petitioner along with her claim as per Ext.P2 Will and for incidental reliefs. - - 2. Smt. Binushma the petitioner herein contends that she is the legal heir of the founder of the Pambady Haji Mohammed Kunju Memorial Vocational Higher Secondary School, Panavoor village. The 3rd respondent became the Manager on the strength of the registered Will bearing No.13/1/1992 of the Nedumangad SRO executed by her grandfather. As per the provisions of the Will executed by the founder, on attaining the age of legal maturity, the granddaughters of Late Sri. Muhammed Haneefa were to be appointed to the School as teachers subject to the condition that they acquire the requisite qualification. The petitioner contends that she has acquired the necessary qualifications and, therefore, she has the right to get W.P. (C) No.16133 of 2019 4 appointed as a permanent Higher Secondary School Teacher in terms of the provisions of the Will. When the manager, ignoring her rights, appointed Smt.Geethanjali, the additional 5th respondent, the petitioner, approached the civil court and instituted a suit. However, the suit was dismissed by the Munsiff Court for lack of jurisdiction. The petitioner was directed to approach the appropriate forum for redressal of her grievance. The petitioner contends that in the said circumstances, she has submitted a representation. Complaining of non-consideration of the representation, she has approached this Court. 3. Sri. Prem Navaz, the learned counsel, would contend that the provisions of the Will should be given effect, particularly in view of the fact that the Manager himself is acting as such on the strength of the Will. According to the learned counsel, there is no justification on the part of the manager in appointing the 5th respondent by ignoring the rights of the petitioner herein. 4. In response, Smt. Siny M.C, the learned counsel appearing for the 5th respondent, would rely on the judgment of this Court in **Abdul Bashith v. Jamsheed** (2019 (2) KLT 47), and it is submitted that the appointment of teachers in an aided school cannot be the subject matter of W.P. (C) No.16133 of 2019 5 the Rules contemplated by Rule 2 of Chapter III. As the teachers are paid out of the public exchequer, it is imperative that the selection and appointment of teachers are done only in accordance with relevant rules and orders. It is submitted that the petitioner cannot be heard to contend that she has to be appointed as a teacher in the school in view of the Will executed by the founder. 5. I have considered the submissions advanced. I find that the additional 5th respondent was appointed as HSST in the school against the vacancy sanctioned as per order dated 06.02.2019 after undergoing a due process of selection. The selection for the post was conducted by a duly constituted selection committee, which included a Government nominee. The additional 5th respondent joined the school on 01.07.2019 and has been working without salary since then. It is in view of the pendency of the instant writ petition that approval of the appointment has not been granted to date. 6. The case of the petitioner is that in view of the terms of the Will executed by the founder, she is entitled to be appointed as the teacher of the school. The very same question had come up in the case cited by the learned counsel appearing for the party respondent. In that case, the contention was that the vacancy that had arisen ought to have been filled by appointing a W.P. (C) No.16133 of 2019 6 qualified member of the family in compliance with the terms of the partition deed. A Division Bench of this Court, while repelling the contentions, had occasion to hold as follows: ……….[Since a specific contention is put forward by the counsel for the appellant that once orders are issued under Rule 2 of Chapter III K.E.R. approving the partition deed exhibit R6(a), its provisions would bind all concerned with the management of the school including the educational authorities, we consider it necessary to examine the scope of the said provision. Rule 2 of Chapter III K.E.R. reads as under:- 2. Constitution of Corporate Management-- In the case of institutions under corporate Educational Agency, the constitution of the Educational Agency to the extent and in so far as it relates to the management of any school must be subject to rules approved by the Director which should prescribe among other things (a) the manner in which the proprietary body shall carry out its functions relating to the management of the institutions and (b) the manner in which the managing body shall be elected or appointed, the conditions and tenure of their office and their duties and powers with respect to the management of the institution. In the case of aided schools, the manner of appointment of managers also shall be specified in the rules. Such rules shall not be against the provisions of the Education Act, the rules issued under it, or any other rules passed by the Department or the Government. Any change made in such rules subsequently shall be subject to approval by the Director before becoming operative. W.P. (C) No.16133 of 2019 7 7. A careful reading of the above provision leaves no doubt in our minds that what is contemplated by the said provision are matters regarding. (a) the manner in which the proprietary body shall carry out its function relating to the management of the institutions and (b) the manner in which the managing body shall be elected or appointed, the conditions and tenure of their office and duties and powers with respect to the management of the institution. Even assuming that the partition deed takes the position of the Rules contemplated by Rule 2 above, the fact remains that such rules can only deal with the management of the institution and the aspects regarding change of management. Appointment of teachers cannot be the subject matter of the rules that are contemplated by Rule 2 of Chapter III. Since teachers are paid out of the public exchequer, it is imperative that selection and appointment of teachers are done only in accordance with the relevant Rules and orders. The stipulations contained in Chapter XIV A K.E.R. shall govern all such aspects. In view of the above, we find no merit in the contention that a member of the family would have to be appointed in preference to a better-qualified person. Considering the interests of the students also, it is only in the fitness of things that the most competent person is appointed after following the proper accepted method of selection. W.P. (C) No.16133 of 2019 8 In view of the law laid down by this Court, the petitioner has not made any case for interference. The contention of the petitioner that in terms of the provisions of the Will, the manager is bound to appoint the petitioner cannot, therefore, be sustained. No purpose would be served in directing the official respondents to consider the representation filed by the petitioner. In that view of the matter, I do not think that the petitioner has made out a case for interference. This writ petition will stand dismissed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** IAP W.P. (C) No.16133 of 2019 9 ## **`APPENDIX OF WP(C) 16133/2019`** ``` PETITIONER’S EXHIBITS: ``` ``` EXHIBIT P1THE TRUE COPY OF THE APPOINTMENT ORDER DATED 17/12/2014 ``` ``` EXHIBIT P2THE TRUE COPY OF THE WILL BEARING NO.13/1/1992 ``` ``` EXHIBIT P3THE TRUE COPIES OF THE REQUEST SUBMITTED TO DIRECTOR TO GENERAL EDUCATION, DEPARTMENT, REGIONAL DEPUTY DIRECTOR HIGHER SECONDARY EDUCATION, 10TH RESPONDENT MANAGER OF THE SCHOOL ETC. ``` ``` EXHIBIT P4THE TRUE COPY OF THE ORDER PASSED BY THE HON'BLE PRINCIPAL MUNSIFF COURT, NEDUMANGAD, THIRUVANANTHAPURAM ```