Fr. Abraham Varghese, V.V Mathew & Santosh George v. State of Kerala and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.`** ``` WEDNESDAY, THE 17[TH] DAY OF JULY 2024 / 26TH ASHADHA, 1946 ``` ## **`WP(C) NO. 2334 OF 2024`** ## **`PETITIONER/S:`** - **`1 FR. ABRAHAM VARGHESE AGED 78 YEARS , S/O V.V JOY, MANAGER, ST. MARY'S HIGHER SECONDARY SCHOOL, MANARCAD P.O, KOTTAYAM -, PIN - 686019`** - **`2 V.V MATHEW, AGED 63 YEARS S/O VARKEY, VADAKKEKARA HOUSE, MANARCADU VILLAGE, MAALAM KARA, MAALAM P.O, KOTTAYAM -, PIN - 686015`** - **`3 SANTHOSH GEORGE, AGED 52 YEARS, S/O LATE FR. GEORGE MOOLAYIL, MOOLAYIL HOUSE, MANARCADU VILLAGE, KUZHIPURAYIDAM KARA, MANARCADU P.O, KOTTAYAM, PIN - 686019 BY ADVS. MATHEW JOHN (K) ABY J AUGUSTINE`** ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-, PIN - 695001`** - **`2 DIRECTOR OF GENERAL EDUCATION, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-, PIN - 695014`** - **`3 DEPUTY DIRECTOR OF GENERAL EDUCATION, VAYASKARAKUNNU, KOTTAYAM, PIN - 686001`** - **`4 FR. M.I THOMAS (AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER), MATTATHIL HOUSE, MANARCAD, KOTTAYAM -, PIN - 686019`** - **`5 FR. E.T KURIAKOSE ITTIADATHU HOUSE, MANARCADU VILLAGE, MAALAM KARA, MAALAM P.O, KOTTAYAM -, PIN - 686015`** - **`6 P.A ABRAHAM (AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER), PAZHYEDATHUVAYALIL, VELLOOR KARA, MANARCADU VILLAGE, KOTTAYAM, PIN - 686019`** - **`7 VARGHESE IYPE (AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER), MUTHALUPADIYIL, THIRUVANCHOOR KARA, MANARCADU VILLAGE, KOTTAYAM -, PIN - 686019`** - **`8 JITHIN KURIAN ANDREWS (AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER) CHIRAVATHARA, MANARCADU VILLAGE, KOTTAYAM -, PIN - 686019`** - **`9 ADDL. R9. FR. KURIAKOSE, S/O ABRAHAM, AGED 73 YEARS, MANAGER, ST. MARY'S HIGHER SECONDARY SCHOOL, MANARCAD, RESIDING AT KARUKKAL, MALAM P.O., MANARCAD, KOTTAYAM IS IMPLEADED AS PER ORDER DATED 12.02.2024 IN I.A. 1/2024 IN WP(C) 2334/2024.`** WP(C) No.2334 of 2024 2 ``` 10ADDL R10. THE DISTRICT EDUCATIONAL OFFICER, THIRUNAKKARA, KOTTAYAM -686001 IS IMPLEADED AS ADDITIONAL R10 AS PER ORDER DATED 01.07.2024 IN I.A. 5/2024 IN WP(C) 2334/2024. FOR R4 TO R9 BY BY ADV. SANTHARAM P. FOR R1 TO R3 AND R10 BY SMT.K.G.SAROJINI,GOVT.PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.01.2024, THE COURT ON 17.07.2024 THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) No.2334 of 2024 3 ## **`JUDGMENT`** This Writ Petition is an offshoot of a long-standing dispute between two factions of Malankara Orthodox Syrian Church, namely the Patriarch faction owing allegiance to the Patriarch of Antioch and the Catholicos faction owing allegiance to the Catholicos of the East. These factional disputes gave rise to a series of litigations in all the hierarchies of the judicial system and led to several judgments by the Hon'ble Supreme Court and other courts. One of the most recent and important judgments rendered by the Hon'ble Supreme Court in this regard is **Varghese v. St. Peter's & Paul's Syrian Orthodox Church, reported in 2017(3) KLT 261(SC).** As per the same, the faction belonging to the petitioners was granted the reliefs. 2. St. Mary's Cathedral Church, Manarkad is one of the constituent churches of Malankara Orthodox Syrian Church, which is one of the subject matters of the dispute between two factions referred to above. St.Mary's Higher Secondary School, Manarkad is one of the institutions under the said Church and according to the petitioner, at present the 4[th] respondent is the approved Manager of the said WP(C) No.2334 of 2024 4 school as per the provisions of the Kerala Education Rules and the 4th respondent is in the rival faction of the petitioners. 3. Earlier, on the basis of the law and rights declared by the Hon’ble Supreme Court in **K.S.Varghese’s** case (supra), the petitioners herein submitted O.S.No.7/2019 with respect to the right over the properties and management of St.Mary’s Cathedral Church, Manarcad and institutions under the said church. The 5[th] respondent was one of the defendants in the suit and the reliefs are sought against the faction of the Church to which respondents 4 to 8 belong. The aforesaid suit was decreed in favour of the petitioners, as per the terms of the decision rendered by the Hon’ble Supreme Court in **K.S** . **Varghese’s** case (supra) as per Ext P1 judgment. The following findings and directions were made in Ext P1: _(1) First defendant is hereby directed to convene general body of first plaintiff church in compliance with the provisions of 1934 Constitution to elect trustees and managing committee and defendants are further directed to deliver possession of properties of first plaintiff church and its institutions to the trustees and committee thus elected._ _(2) Defendants 2 to 4 are hereby directed to render accounts of first plaintiff church to their successors._ _(3) Defendants are further directed to hand over keys of first plaintiff church and its institutions to second plaintiff and trustees_ WP(C) No.2334 of 2024 5 _elected under 1934 Constitution of Malankara Orthodox Syrian Church._ _(4) Defendants are hereby restrained by decree of permanent prohibitory injunction from interfering with administration of first plaintiff church except as otherwise provided in 1934 Constitution._ _(5) Considering nature of suits there is no order as to costs._ 4. According to the petitioners, by virtue of the judgment and decree passed in O.S.No.7/2019 by the Additional Sub Judge, Kottayam as evidenced by Ext.P1, they are entitled to take over and manage the church as well as the institutions of the same including the school. The execution proceedings in respect of the said judgment and decree are pending. While the matters being so, they came across a public notice published by the 4[th] respondent in Malayala Manoramma daily dated 30.11.2023 (Ext.P2) in his capacity as the Manager of the St.Mary’s Cathedral Church, Manarcad inviting applications for filling up of the vacancies in the school. According to the petitioners, consequent to the **K.S.Varghese’s** case (supra) and the judgment and decree passed by the Civil Court vide Ext.P1, the 4[th] respondent could not have held the charge of the Manager of the St.Mary’s Cathedral Church, Manarcad any longer and hence Ext.P2 notice and the selection process sought to be WP(C) No.2334 of 2024 6 initiated on the basis of the same are legally not sustainable. Even though the petitioners have submitted Ext.P3 complaint before the respondents 1 to 3 about the illegality as referred to above, it did not evoke any response. It was in such circumstances, that this Writ Petition is filed seeking the following reliefs: _“i) Call for the records leading upto Ext.P6 and issue a writ in the nature of certiorari or any other appropriate writ, direction or order quashing Ext.P2 advertisement. ii) Issue a writ in the nature of mandamus or any other appropriate writ, direction or order directing respondents 1 to 3 to consider and dispose of Ext.P3 representation. iii) Declare that the respondents 4 to 7 are not entitled to make appointments pursuant to Ext.P2 advertisement. iv) Issue a writ in the nature of mandamus or any other appropriate writ, direction or order forbearing respondents 4 to 7 from proceeding pursuant to Ext.P2 advertisement and from taking any steps for making appointments to the vacancies referred to therein._ _v) Issue such other directions or orders as are just and necessary in the facts and circumstances of the case to meet the ends of justice. vi) To dispense with the filing of English translation of vernacular documents_ .” 5. When the matter came up for admission, an interim order was passed by this Court on 23.01.2024 staying the operation of Ext.P2 advertisement and further proceedings pursuant thereto including any steps to make appointment. 6. The 6[th] respondent appeared and filed a detailed counter affidavit against the averments contained in the writ petition and the relief sought. In the counter affidavit, it was WP(C) No.2334 of 2024 7 averred that, as per Ext.R6(a), a decision was taken by the education agency by appointing Very Rev.Kuriakose Abraham Core Episcopa Karukayil as the Manager of the School and the same was approved by the District Education Officer, Kottayam as evidenced by Ext.R6(b). It was contended that so long as the said person is continuing as approved manager as per the statutory provisions, nothing would preclude him from conducting the selection process for filling up the available vacancies. 7. In the meanwhile, I.A.No.2/2024 was filed seeking amendment of the writ petition by incorporating necessary prayers for challenging Exhibit P6(b) which was passed based on Ext.R6(a). I.A.No 1.2024 was filed wherein, the person who was appointed as the Manager of the school as per Ext.R6(b) was sought to be impleaded as the Additional 9[th] respondent in the writ petition. Subsequently, District Education Officer, Kottayam was also sought to be impleaded as the additional 10[th] respondent in I.A.No.5/2024. All the said petitions were allowed and the amendments and impleadments as sought by the petitioner were permitted. Based on the amendment, an additional relief was incorporated challenging Ext.P1(a) ( _Ext_ WP(C) No.2334 of 2024 8 _R1(b)) produced along with the counter affidavit of the respondents_ ) which reads as follows: _“Call for the records leading upto Ext.P6 and issue a writ in the nature of certiorari or any other appropriate writ, direction or order quashing Ext.P1(a)._ 8. Heard Sri. Mathew John, the learned counsel for the petitioners, Sri. P.K.Suresh Kumar, the learned Senior Counsel appearing for respondents 4 to 9 assisted by Advocate Sri. P. Santharam and Smt. K.G.Sarojini, the learned Government Pleader for respondents 1 to 3 and additional 10[th] respondent. 9. The specific challenge raised by the petitioners in this writ petition is against the selection process proposed to be conducted by the Manager of the St.Mary’s Higher Secondary School, Manarcad i.e., the additional 9[th] respondent herein. In the light of Ext.P1(a), it is evident that, as of now, the additional 9[th] respondent is the present Manager approved by the educational authorities concerned. The petitioners are seeking to interfere with the rights of the additional 9[th] respondent in making appointments on the basis of Ext.P1 judgment passed in the suit wherein, the rights of the petitioners were recognized in the light of **K.S.Varghese’s case** (supra) and directions were issued with regard to taking over the properties and WP(C) No.2334 of 2024 9 management of the institutions of the Church. Thus, the question that arises here is whether the petitioners can interfere with the rights of the 9[th] respondent to make appointments on the strength of Ext.P1 judgment passed by the civil court. 10. On carefully going through the judgment and decree passed as per Ext.P1, it can be seen that mainly there are four directions, the first one is to the effect that, the 1[st] defendant therein i.e. Fr. E.T. Kuriakose Abraham Core Episcopa Karukayil, the 5[th] respondent herein, was directed to convene a general body of the first plaintiff church in compliance with the provisions of 1934 Constitution to elect trustees and managing committee and defendants are further directed to deliver possession of properties of first plaintiff Church and its institutions, to the trustees and committee thus elected. Besides the same, as per direction No.(3) in Ext.P1, it is further directed to hand over the keys of the first plaintiff Church and its institutions to the second plaintiff and trustees elected under the 1934 Constitution of Malankara Orthodox Syrian Church. Thus, it is evident that the properties of the Church and its institutions are to be handed over to the 2[nd] plaintiff therein and trustees elected under the 1934 constitution of Malankara Orthodox Syrian Church, as WP(C) No.2334 of 2024 10 contemplated in direction No 1 in the judgment. However, it is an admitted position that even though the judgment and decree were passed as evidenced by Ext.P1, as of now, the same has not been executed, and the proceedings in this regard are pending before the execution court. The meeting as directed in clause No 1 of the operative portion of Ext P1 is to be convened and the trustees and management committee has to be elected. Evidently, those events are yet to take place. Therefore, so long as the decree is not executed in favour of the plaintiffs therein, they cannot be treated as persons in possession and management of St.Mary’s Higher Secondary School, Manarcad which is one of the institutions run by the said Church. 11. To consider the question of the entitlement of the petitioners to seek reliefs in the writ petition, the statutory provisions under KER are also to be examined. Rule 4 of Chapter III of KER deals with the approval of appointment of Managers, which reads as follows: _“4. Approval of appointment of Managers – (1) The Educational Officers shall be competent to approve the appointment of Managers by Educational Agencies and to approve changes in the personnel of the Managers._ > _[(2) If the Educational Agencies have schools in more than one Educational District within a [Revenue District] the appointment of managers and changes in the personnel of the managers may be approved by the [Deputy Director (Education)] having_ WP(C) No.2334 of 2024 11 _jurisdiction in the [(Revenue District] if the Educational Agencies have schools in more than one [Revenue District] the appointment of managers and changes in the personnel of the Managers may be approved by the Director of Public Instruction]. [(2A) The approval of appointment of Managers and Changes in the personnel of the Managers under sub- rules (1), and (2) above shall take effect from the date of actual assumption of charge of the management specified in the order of approval issued by the competent authorities concerned]._ _[(3) Any person aggrieved by an order of the Educational Officer under sub-rule (1) or of the 3[Deputy Director (Education) under sub-rule (2) may within 30 days from the date of receipt of the order prefer an appeal to the Director._ _(4) Government may, on their own motion or otherwise, revise any order passed by the Director of Public Instruction].”_ Thus, from the aforesaid provision, it is evident that once the approval of appointment of Manager is made, the same shall take effect from the date of actual assumption of charge of the management specified in the order of approval issued by the competent authorities concerned in this regard. In this case admittedly, the 9[th] respondent is the approved manager. It is also evident that, even though a judgment and decree was passed by a competent civil court, the possession of the properties and institutions, including the management of the Church and the school, have not been handed over to the plaintiffs in the said suit. Admittedly, even now, the same vests with the party respondents herein and the additional 9[th] respondent is continuing as the Manager of the said school with all approvals in this regard. WP(C) No.2334 of 2024 12 12. Thus, even though a challenge is raised by the petitioners against the order of approval of the manager as per Ext.P1(a), the said challenge is only on the basis of Ext.P1 judgment passed by the civil court which is yet to be executed and the possession and control has to be handed over to the plaintiffs therein. Thus, as the physical possession and management of the school is even now with the 9[th] respondent and he continues to be the approved manager of the said school, the petitioners cannot interfere with the rights and duties of the 9[th] respondent to make appointments in the said school. To be precise, unless and until the management is transferred in favour of the petitioners by adopting the procedure contemplated under Chapter III of KER, the petitioner cannot seek the reliefs sought in this writ petition. In this case, no such proceedings have taken place, and the petitioners are also not in possession or the management of the school. Therefore, unless Ext.P1 judgment and decree is executed and the petitioners were put in possession and management of the Church and the institutions of the church including St.Mary’s Higher Secondary School, Manarcad, the petitioners cannot seek relief that are sought in WP(C) No.2334 of 2024 13 the writ petition. Thus, the relief sought is premature, and hence, the same cannot be considered at this juncture. 13. Moreover, as far as the 9[th] respondent-Manager is concerned, he is duty bound to make appointments when the vacancies arise in the teaching and non-teaching posts as the same is a requirement for ensuring the smooth conduct of the institution, which is for the welfare of the students in the said school. The said process cannot be put on hold merely because there are certain disputes with regard to the management of the school and a change of management is in the process. Thus, so long as the 9[th] respondent is continuing as the approved Manager of St.Mary’s Higher Secondary School, Manarcad, he cannot be interdicted from exercising his duties to make appointments. In such circumstances, I do not find any merit in the writ petition, and accordingly, it is dismissed without prejudice to the petitioners' rights to seek the said relief, after they are put in actual possession and management of the said school. **Sd/ZIYAD RAHMAN A.A. JUDGE** pkk WP(C) No.2334 of 2024 14 ## **`APPENDIX OF WP(C) 2334/2024`** ## **`PETITIONER’S EXHIBITS`** ``` EXHIBIT P1A TRUE COPY OF THE JUDGMENT IN O.S 7/2019 DATED 18/09/2020 EXHIBIT P2TRUE COPY OF THE ADVERTISEMENT DATED 30.11.2023 EXHIBIT P3TRUE COPY OF THE COMMUNICATION DATED 01.01.2024 EXHIBIT P4TRUE COPIES OF THE POSTAL RECEIPT EXHIBIT P5TRUE COPIES OF THE POSTAL RECEIPTS EXHIBIT P6TRUE COPIES OF THE POSTAL RECEIPTS EXHIBIT P1ATRUE COPY OF THE ORDER DATED 01.10.2022 ISSUED BY DISTRICT EDUCATIONAL OFFICER, KOTTAYAM. EXHIBIT P7TRUE COPY OF THE PLAINT OS 147 /1974 ``` ## **`RESPONDENT EXHIBITS`** ``` EXHIBIT R6(A)TRUE COPY OF THE BYELAW OF THE ST.MARY'S JACOBITE SYRIAN CHURCH EDUCATIONAL AGENCY, MANARCAUD EXHIBIT R6(B)TRUE COPY OF THE ORDER DATED 01.10.2022 ISSUED BY DISTRICT EDUCATIONAL OFFICER, KOTTAYAM WHEREBY APPOINTED THE MANAGER EXHIBIT R6(C)TRUE COPY OF CONSTITUTION OF THE YEAR 1958 OF ST.MARY'S JACOBITE SYRIAN CHURCH, MANARCAUD EXHIBIT R6(D)TRUE COPY OF JUDGEMENT IN O.S NO.315/1960 ON THE FILES OF THE MUNSIFF'S COURT, KOTTAYAM WHEREBY APPOINTED THE MANAGER ```