E.K. Rajakrishnan v State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY ,THE 29TH DAY OF JANUARY 2019 / 9TH MAGHA, 1940** ## **WP(C).No.37915 of 2017** ## **PETITIONER:** **E.K. RAJAKRISHNAN S/O.E.K. KANARAN, AGED 58 YEARS, ELAMAKANDI HOUSE, THIKKODI, KOZHIKODE** **BY ADVS. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUAVNANTHAPURAM, 695001 2 DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHY, THIRUVANANTHAPURAM 695006 3 THE ASSISTANT EDUCATIONAL OFFICER MELADI, KOZHIKODE DISTRICT, 673522 4 P.SIVAN S/O.GOVINDAN, POOVOLI HOUSE, THIKKODI PO, KOZHIKODE DISTRICT, 673529 BY ADVS. SENIOR GOVT. PLEADER SRI.JAYASURYA.B. SRI.P.A.HARISH SRI.V.V.SURENDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.37915 of 2017** **2** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioner seeks to call for the records leading to Ext.P10 issued by the 1[st] respondent and quash the same. The petitioner further seeks to direct respondents 1 to 3 to approve the petitioner as Manager of the Thrikkottur AUP School. 2. According to the petitioner, the Thrikkottur AUP School, Thikkodi is managed by Thrikkottur Vidyabhyasa Committee formed in the year 1951 and registered under the Societies Registration Act. As per the byelaws of the Society, the President of the Committee shall be the Manager of the School. In an election held on 06.07.2014, the petitioner was elected as President of the Committee and therefore, became the Manager of the School also. The Assistant Educational Officer, Meladi approved the appointment of the petitioner as Manager, by Ext.P1 order dated 28.08.2014. **WP(C).No.37915 of 2017** **3** 3. The petitioner submits that one P.P. Rajan, one of the members of the Committee, filed a petition before the 3[rd] respondent-AEO alleging that he was elected as new President by replacing the petitioner. However, the approval granted to the petitioner to work as Manager, was further extended for two years in the meeting of the Committee held on 26.06.2016. The said P.P.Rajan filed W.P.(C) No.26738/2015 challenging the order passed by the 3[rd] respondent rejecting his claim to work as a Manager. This Court directed the 3[rd] respondent to consider his application. Consequently, the 3[rd] respondent issued an order on 31.05.2016 approving the claim of Sri.Rajan as per Ext.P2. 4. The petitioner challenged Ext.P2 order by filing W.P.(C) No.19377/2016 and this Court granted an interim stay on the operation of Ext.P2. Thereupon, the 4[th] respondent herein, who is a stranger to the issue, filed W.P. (C) No.26604/2016 claiming that he is elected as the new President of the Committee on 10.07.2016. This Court **WP(C).No.37915 of 2017** **4** disposed of both the said writ petitions on 01.09.2016 directing the 3[rd] respondent to consider the matter afresh. Till such time, the AEO was directed to function as Manager. 5. Thereafter, the 3[rd] respondent-AEO, as per Ext.P4 order dated 04.03.2017, approved the appointment of the petitioner as temporary Manager till the suit pending before the civil court is decided. Ext.P4 order was challenged by the 4[th] respondent and another in W.P.(C) No.9067/2017. The said writ petition was disposed of by this Court as per Ext.P5 judgment dated 17.03.2017 directing the petitioners therein to file an appeal before the District Educational Officer, Kozhikode. The petitioner filed Writ Appeal No.627/2017 against Ext.P5 judgment. The Division Bench modified Ext.P5 judgment and directed respondents 1 and 2 therein to file an appeal before the Director of Public Instructions, as per Ext.P6 judgment. The 2[nd] respondent-DPI after hearing, set aside Ext.P5 and directed the 3[rd] respondent to continue as Manager, as per Ext.P7 **WP(C).No.37915 of 2017** **5** order dated 15.05.2017. 6. The petitioner states that aggrieved by Ext.P5, he filed W.P.(C) No.18799/2017 and on 06.06.2017, this Court directed the 1[st] respondent to consider Ext.P8 revision filed by the petitioner and take a decision on the claims of the parties for appointment as temporary Manager during the pendency of the civil suit. 7. Before the 3[rd] respondent, the petitioner has submitted a list of members and office bearers of the Thrikkottur Vidyabhyasa Committee. The said list of office bearers and their selection was challenged by Sri. P.P. Rajan in O.S. No.2/2016 before the Munsiff's Court, Payyoli. The said O.S. is still pending. 8. The petitioner submits that on the purported compliance of E.P9 judgment in W.P.(C) No.18799/2017, the 1[st] respondent issued Ext.P10 order confirming the order of the 3[rd] respondent. The said Ext.P10 order dated 3.10.2017 of the 1[st] respondent has been impugned in this writ petition. **WP(C).No.37915 of 2017** **6** 9. The 4[th] respondent filed a counter affidavit and defended the writ petition. The 4[th] respondent states that though the petitioner was elected as President of the Committee on 06.11.2014, the term of the office of the Committee was over by 05.07.2016. The General Body of the Committee in its meeting held on 06.11.2014 removed the petitioner from the post of the President of the Society and elected Sri. P.P. Rajan as the President. The 3[rd] respondent approved the appointment of the said P.P. Rajan as Manager on 31.05.2016. However, this Court set aside the said order dated 31.05.2016 on technical reasons and directed the 3[rd] respondent to reconsider the same. 10. According to the 4[th] respondent, the claim of the petitioner that the petitioner's term was extended for two years in the meeting held on 26.06.2016 is incorrect. There was no such General Body Meeting held on 26.06.2016. On the other hand, the General Body Meeting held on 10.07.2016 elected the 4[th] respondent as President. The **WP(C).No.37915 of 2017** **7** petitioner when realised that majority of the members of the Society are not with him, he clandestinely formed a parallel Committee inducting his supporters. It was under these circumstances, O.S. No.2/2016 was filed and the learned Munsiff has injuncted the Registrar of Societies from accepting the list of office bearers submitted by the petitioner. 11. The 4[th] respondent further submitted that he is not a stranger to the Society but, is the present President of the Committee. According to the 4[th] respondent, the petitioner is not entitled to act as a Manager of a School nor can the petitioner object to electing the 4[th] respondent as President. The writ petition therefore, lacks merits and it is only to be dismissed. 12. The petitioner filed reply and additional reply affidavits denying the averments in the counter affidavits. 13. The counsel for the petitioner argued that the petitioner is the newly elected President eligible to be in **WP(C).No.37915 of 2017** **8** office and to discharge the duties of the Manager. By Ext.P9 judgment, this Court specifically directed the 1[st] respondent to take a decision on the claim of the parties for appointment as temporary Manager during the pendency of the civil suit. However, by Ext.P10 order, the 1[st] respondent ordered the AEO to continue as temporary Manager. This is absolutely illegal and Ext.P10 order has been passed ignoring and violating Ext.P9 judgment. Ext.P10 is, therefore, liable to be quashed. The 1[st] and 2[nd] respondents have not considered the vacuum in the office of the Manager. This Court in the judgment in _**Dr. Philippose Mar Theophilus v. State of Keala and others** [1986 KLJ 1069]_ held that abdication of jurisdiction by the statutory authorities in every case, on the ground that the dispute is to be resolved by civil court, cannot be justified. If possible, the authorities should decide the issues in all cases, at least for the limited purposes of the Act and Rules. They can await civil court's decision only where the problems are far too complex. In the said judgment, this Court further held that it is important that there **WP(C).No.37915 of 2017** **9** should be someone to function as Manager under the control of the educational authorities and that someone should be one chosen by a person who is _prima facie_ at least, the owner of the institution. The petitioner's father was the founder President of the Committee. In 2014, the petitioner was elected as President. Under these circumstances, the 4[th] respondent ought to have approved the petitioner as Manager. 14. On the other hand, the counsel for the 4[th] respondent strongly opposed any order to make the petitioner as the Manager of the School. Learned counsel for the 4[th] respondent argued that the Government have passed Ext.P10 pursuant to the direction of this Court in Ext.P9 judgment. While passing Ext.P10, it cannot be assumed that, the 1[st] respondent has not considered the desirability of appointing someone from the Committee as temporary Manager of the School. The learned counsel for the 4[th] respondent urged that the 1[st] respondent has actually **WP(C).No.37915 of 2017** **10** considered such desirability and still came to the decision to continue the AEO as Manager of the School. Learned counsel for the 4[th] respondent further urged that the petitioner was elected as President of the Committee on 06.07.2014 and the term of appointment of the petitioner expired on 05.07.2016. The counsel for the 4[th] respondent strongly disputed that the petitioner was again elected as President of the Committee. However, the counsel for the 4[th] respondent states, even assuming for argument sake, the petitioner has been re-elected, even the subsequent tenure of the Committee has come to an end by the year 2018. The counsel for the 4[th] respondent, therefore, pointed out that the petitioner cannot aspire to act as a temporary Manager. 15. The counsel for the 6[th] respondent stated that since the relation between the petitioner and other members of the Committee is strained, a final solution to the problem will emerge only once O.S. No.2/2016 pending before the Munsiff's Court, Payyoli, comes to an end. Therefore, the **WP(C).No.37915 of 2017** **11** counsel urged that instead of this Court directing the 1[st] respondent to explore the possibility of selecting a person from the Committee to act as temporary Manager, it will be appropriate that the civil court be directed to finalise the O.S. pending before it, so that all legal issues will be settled. 16. The learned counsel for the 4[th] respondent further urged that the election of the 4[th] respondent has not been challenged by the petitioner. Further more, this Court in Ext.P3 judgment deemed it necessary to direct the AEO, Meladi to function as Manager of the School. Ext.P3 judgment has also not been subjected to challenge from any quarters. Therefore, there is no reason whatsoever to interfere with Ext.P10 order of the 1[st] respondent, rejecting the request of the petitioner to appoint him as temporary Manager, at this stage. The writ petition, therefore, lacks any merit and is liable to be dismissed, contends the counsel for the 4[th] respondent. 17. I have considered the arguments of the learned **WP(C).No.37915 of 2017** **12** counsel for the petitioner as also the counsel for the 4[th] respondent. I have heard the learned Government Pleader appearing for respondents 1 to 3 also. 18. Though the issue arising out of a dispute between the fractions of the petitioner and the 4[th] respondent in the Thrikkottur Vidyabhyasa Committee has a tumultuous history, I find that it may not be necessary to deal with those aspects in deciding the issue involved in this case. It is true that this Court in Ext.P3 judgment directed the AEO to function as the Manager of the School from the date of Ext.P2 judgment till orders are passed by the AEO. The AEO passed orders in this regard as per Ext.P4. Subsequently, in a challenge made by the petitioner to the order passed by the DPI, this Court in Ext.P9 judgment in W.P.(C) No.18799/2017 directed the 1[st] respondent to consider Ext.P7 revision petition filed by the petitioner, after affording an opportunity of hearing to the petitioner and the 4[th] respondent and “ _take a decision on the claim of the_ **WP(C).No.37915 of 2017** **13** _parties for appointment as temporary Manager_ ” during the pendency of the civil suit. Therefore, the specific direction of this Court contained in Ext.P9 judgment was to take a decision on the claim of the parties for appointment as temporary Manager. However, the 1[st] respondent, without considering the claim of the parties and without considering the desirability of one of the members of the Committee to act as Manager, rejected the revision petition of the petitioner as per Ext.P10. Ext.P10 only states that since there is a dispute between the 10 member Committee, who are now divided into two fractions, it is impossible to appoint anyone from the Committee as Manager. The rationale of this conclusion is not disclosed. This finding in Ext.P10 order goes against the order in Ext.P9 judgment of this Court as also the judgment reported in _**Dr. Philippose Mar Theophilus** (supra)_ . It does not appear from Ext.P10 that the 1[st] respondent has considered the claim made by the petitioner or the desirability of appointing anyone from the Committee to act as Manager of the School till the civil suits **WP(C).No.37915 of 2017** **14** are concluded. To that extent, Ext.P10 order of the 1[st] respondent is unsustainable. 19. In the circumstances, Ext.P10 order of the 1[st] respondent is set aside. The 1[st] respondent is directed to reconsider the issue in the light of Ext.P9 judgment of this Court. A decision in this regard shall be taken within a period of sixty days from the date of receipt of a copy of this judgment, after hearing the petitioner and the 4[th] respondent. The petitioner and the 4[th] respondent will be at liberty to approach the Munsiff's Court, Payyoli and seek expeditious disposal of O.S. No.2/2016. Writ petition is disposed of as above. Sd/- **N. NAGARESH, JUDGE** aks/29.01.2019 **WP(C).No.37915 of 2017** **15** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DATED 28.08.2014 EXHIBIT P2 THE TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DATED 31.05.2016 EXHIBIT P3 THE TRUE COPY OF THE COMMON JUDGMENT IN WRIT PETITION 26604/2016 AND 19377/2016 DATED 01.09.2016 EXHIBIT P4 THE TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DATED 04.03.20 EXHIBIT P5 THE TRUE COPY OF THE JUDGMENT IN WRIT PETITION 9067/2017 DATED 17.03.2017 EXHIBIT P6 THE TRUE COPY OF THE JUDGMENT IN WRIT APPEAL 627/2017 DATED 18.03.2017 EXHIBIT P7 THE TRUE COPY OF THE ORDER DATED 15.05.2017 PASSED BY THE 2ND RESPONDENT EXHIBIT P8 THE TRUE COPY OF THE REVISION PETITION FILED BY THE PETITIONER AGAINST EXT P5 EXHIBIT P9 THE TRUE COPY OF THE JUDGMENT IN WRIT PETITION 18799/2017 DATED 06.06.2017 EXHIBIT P10 THE TRUE COPY OF THE GO (MS)NO. 3466/2017/G.EDN DATED 03.10.2017 EXHIBIT P11. TRUE COPY OF THE AFFIDAVIT AND PETITION FILED IN OS 2/2015. EXHIBIT P12. TRUE COPY OF THE NOTICE DATED 24.06.2016 AND THE MINUTES OF THE MEETING HELD ON 10.07.2016.** **WP(C).No.37915 of 2017** **16** |**EXHIBIT P13.**|**TRUE COPY OF THE LETTER DATED**| |---|---| ||**05.07.2016 ISSUED BY THE HM OF THE**| ||**SCHOOL.**| |**EXHIBIT P14.**|**TRUE COPY OF THE REPORT SUBMITTED BY**| ||**THE 3RD RESPONDENT TO THE 1ST**| ||**RESPONDENT ALONG WITH LETTER.**| |**RESPONDENT'S**|**EXHIBITS:**| |**R4(A)**|**TRUE COPY OF THE RELEVANT PAGE OF THE**| ||**MINUTES BOOK OF THE SOCIETY**| |**R4(B)**|**TRUE COPY OF THE PLAINT IN OS.80/16**| ||**DATED 7.7.16**| |**R4(C)**|**TRUE COPY OF THE MINUTES OF THE**| ||**MEETING HELD ON 16.11.14**| |**R4(D)**|**TRUE COPY OF THE BYELAW OF THE**| ||**SOCIETY**| |**R4(E)**|**TRUE COPY OF THE PLAINT, OS.2/15 ON**| ||**THE FILE OF THE MUNSIFF MAGISTRATE,**| ||**PAYYOLI**| |**R4(F)**|**TRUE COPY OF THE WRITTEN STATEMENT**| ||**FILED BY THE 3RD RESPONDENT IN**| ||**OS.2/15.**| |**R4(G)**|**TRUE COPY OF THE PLAINT IN OS.2/16**| |**R4(H)**|**TRUE COPY OF THE ORDER OF THE**| ||**MUNSIFF, PAYYOLI IN IA.15/16 IN**| ||**OS.2/16 DATED 8.2.16**|