K. Kanchana and K. Sadhana v. Director of Public Instruction and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 12TH DAY OF FEBRUARY 2018 / 23RD MAGHA, 1939** **WP(C).No. 14894 of 2014** ## **PETITIONERS:** - **1 K. KANCHANA, D/O.LATE V.P.KRISHNAN NAIR, ELAYAVOOR AMSOM, ATHIRAKAM DESOM, P.O. MUNDAYAD, KANNUR.** - **2 K.SADHANA, D/O.LATE V.P.KRISHNAN NAIR, ELAYAVOOR AMSOM, ATHIRAKAM DESOM, P.O.MUNDAYAD, KANNUR.** **BY ADV.SRI.B.PREMNATH (E)** ## **RESPONDENTS:** **1. THE DIRECTOR OF PUBLIC INSTRUCTION, DEPARTMENT OF EDUCATION, THIRUVANANTHAPURAM-695 001.** **2. THE DEPUTY DIRECTOR OF EDUCATION, KANNUR – 12.** **3. THE ASSISTANT EDUCATIONAL OFFICER, KANNUR NORTH, A.E.O OFFICE, KANNUR 12.** **4. MRS.K.V.VASANTHI, D/O.LATE V.P.KRISHNAN NAIR, 3C NIKUNJAM, NXT THYCAD P.O., THIRUVANANTHAPURAM - 695 014.** - **ADDRES OF THE 4TH RESPONDENT IS CORRECTED:** - **'MRS.K.V.VASANTHI, D/O.LATE V.P.KRISHNAN NAIR, MANAGER, ATHIRAKAM U.P SCHOOL, MUNDAYAD P.O., KANNUR, PIN - 670 594, RESIDING AT SREEVAS, CHEVAYOOR P.O., KOZHIKODE - 17.'** - **ADDRESS OF THE 4TH RESPONDENT IS CORRECTED AS PER ORDER DATED 13.06.2014 IN IA.7780/14.** **5. MRS.CHANDRIKA, HEADMISTRESS, ATHIRTAKAM U.P.SCHOOL, P.O.MUNDAYAD, KANNUR, PIN: 670 594.** **WP(C).No. 14894 of 2014 (J)** **6. K. DINESHAN,** **D/O LATE V.P.KRISHNAN NAIR, ELAYAVOOR AMSOM, ATHIRAKAM DESOM, P.O.MUNDAYAD, KANNUR, PIN: 670 594.** ## *** ADDL. 7TH RESPONDENT IMPLEADED:** **7. JINISHA E., D/O.KRISHNAN, AGED 28 YEARS, 'SREEPADAM', PERALASSERY, P.O. MUNDALLOOR, KANNUR DISTRICT - 670 594.** - **ADDL. 7TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 28.7.2015 IN IA.10771/2015.** **R1-R3 BY SR. GOVERNMENT PLEADER SRI.E.S.ASHRAF** **R4 BY ADVS. SMT.SREEJA SOHAN.K.** **SRI.ROVIN RODRIGUES ADDL.R7 BY ADV. SMT.M.M.DEEPA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.01.2018, THE COURT ON 12.02.2018 DELIVERED THE FOLLOWING:** **EL** **WP(C).No. 14894 of 2014 (J)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXT.P1: TRUE COPY OF THE LEGAL HEIRSHIP CERTIFICATE ISSUED BY THE TAHSILDAR, KANNUR, DATED 10/4/2003. EXT.P2: TRUE COPY OF THE REGISTERED POWER OF ATTORNEY DOCUMENT NO.14/2005 DATED 11/3/2005. EXT.P3: TRUE COPY OF THE APPROVAL ORDER NO.F/2573/05/K.DIS. DATED 03/08/2005 OF THE 3RD RESPONDENT. EXT.P4: TRUE COPY OF THE REGISTERED LAWYER NOTICE ISSUED TO THE 4TH AND 5TH RESPONDENTS DATED 8/4/2011 AND POSTAL RECEIPTS. EXT.P5: TRUE COPY OF THE LAWYER NOTICE DATED 14/11/2013 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONERS AND THE 6TH RESPONDENT. EXT.P6: TRUE COPY OF THE REGISTERED REPLY LAWYER NOTICE OF THE PETITIONERS AND THE 6TH RESPONDENT, DATED 9/12/2013. EXT.P7: TRUE COPIES OF THE REPRESENTATION OF THE PETITIONERS TO RESPONDENTS 1 TO 3 DATED 28/10/2013 ALONG WITH THE POSTAL RECEIPTS DATED 30/10/2013. EXT.P8: TRUE COPY OF THE LETTER ISSUED BY SMT.SHOBHA AS HEADMISTRESS OF ATHIRAKAM U.P. SCHOOL, MUNDAYAD P.O., PIN-670 594 DATED 29.8.2017 EXT.P9: TRUE COPY OF THE QUERY SUBMITTED BEFORE THE STATE PUBLIC INFORMATION OFFICER OF THE ASSISTANT EDUCATIONAL OFFICE, KANNUR NORTH DATED 11.9.2017 EXT.P10: TRUE COPY OF THE LETTER NO.A/3227/17 OF THE PUBLIC INFORMATION OFFICER OF THE ASSISTANT EDUCATIONAL OFFICE, KANNUR NORTH DATED 26.9.2017 EXT.P11: TRUE COPIES OF THE APPOINTMENT ORDERS OF JINISHA E., REESHA P. AND RESHMA P. AS TEACHERS EXT.P12: TRUE COPY OF THE LETTER BY THE 5TH RESPONDENT ADDRESSED TO THE 4TH RESPONDENT DATED 16.8.2016** ## **RESPONDENT(S)' ANNEXURE** **ANX. A TRUE COPY OF THE ORDER DATED 2.7.2013 ANX. B TRUE COPY OF THE ORDER DATED 02.01.2014 ANX. C TRUE COPY OF THE JUDGMENT DATED 23.3.2015 AND MADE IN WPC.8065/2015 ANX. D TRUE COPY OF THE HEARING NOTICE DATED 01.07.2015 ANX. E TRUE COPY OF THE INTERIM ORDER DATED 2.6.2015 IN WPC.14894/2014 TRUE COPY** **P.S. TO JUDGE** **EL** ## **ANU SIVARAMAN, J.** ## **----------------------------------------------W.P(C).No. 14894 of 2014** **----------------------------------------------Dated this the 12[th] day of February, 2018** ## **JUDGMENT** The prayers in the writ petition are as follows: - _“i. call for the records connected with the case;_ - _ii. declare that the management of Athirakam U.P.School, Mundayad P.O., Kannur has to be under a 'Corporate Educational Agency' comprising the petitioners, 4[th] respondent, 6[th] respondent and the legal heirs of late Shobhana and that the Manager of the school has to be chosen as per Rule 2 and Rule 3(3) of Chapter III of the Kerala Education Rules;_ - _iii. direct the 2[nd] respondent to remove the 4[th] respondent from the post of Manager of Athirakam U.P.School, Mundayad P.O., Kannur forthwith;_ - _iv. direct the respondents to permit the 2[nd] petitioner to be the manager of Athirakam U.P.School, Mundayad P.O., Kannur till there is a proper election of its manager in terms of Rule 2 and Rule 3(3) of Chapter III of the Kerala Education Rules;_ - _v. issue a writ of mandamus or other appropriate writ or order directing the 2[nd] respondent to consider and pass orders on Exhibit P7 representation after granting an opportunity of_ 2 _**WP(C).14894/14**_ _being heard to the petitioners and the concerned parties and till then restrain the 4[th] respondent from making any appointments in Athirakam U.P.School.”_ 2. Heard learned counsel for the petitioners and the learned Government Pleader as well as the learned counsel appearing for the contesting respondents. 3. The issue relates to the approval of appointment of Manager of an aided school. The contentions of the petitioners in the writ petition are as follows: The petitioners, their brother the 6[th] respondent, one Shobhana and 4[th] respondent are the legal heirs of deceased Kunjikrishnan Nair, who was the Manager of Athirakam U.P.School. After the death of Kunjikrishnan Nair, his wife and the mother of the petitioners Kalyani assumed charge as the Manager of the school. After the death of their mother in the year 2002, the petitioners and other legal heirs namely the 6[th] respondent and one Shobhana executed Exhibit P2 registered power-of-attorney in favour of the 4[th] respondent appointing her to act as the Manager of the school. Shobhana, one of the executants of the power-of-attorney passed away in the year 2010. There is no authorisation by her legal representatives to the 4[th] respondent empowering her to act as the Manager of _**WP(C).14894/14**_ 3 the school. Immediately on the death of Shobhana, the petitioners and the 6[th] respondent revoked the power-ofattorney in favour of the 4[th] respondent and pointed out to her by notice that in view of the death of Shobhana and the revocation, she can no longer continue as the Manager. The petitioners submitted Exhibit P7 representation to respondents 1 to 3 to remove the 4[th] respondent for the said reasons. It is not acted upon so far. The 4[th] respondent has sent a lawyer notice seeking partition of the property including the management of the school. As the petitioners and respondents 4 and 6 can be termed only as a corporate educational agency, the appointment of the Manager can only be in accordance with Rules 2 and 3 of Chapter III of the Kerala Education Rules. 4. It is contended by learned counsel for the petitioners that after passing away of Shobhana, one of the legal representatives of the deceased owner and Manager of the school, the joint power-of-attorney executed by the petitioners, the 6[th] respondent and Shobhana in favour of the 4[th] respondent authorising her to function as the Manager of the school stood revoked by operation of law and such power-ofattorney would be _non est_ . The other signatories to the powerof-attorney had specifically revoked the power-of-attorney by 4 _**WP(C).14894/14**_ Exhibit P4 lawyer notice and Exhibit P5 notice for partition of the property had also been issued. It is stated that the petitioner had approached the educational authorities seeking removal of the 4[th] respondent from the office of Manager, but no orders had been passed thereon. They therefore seek directions to remove the 4[th] respondent from the post of Manager and approve the appointment of the 2[nd] respondent as Manager. The decision in _**Venkanna v. Atchutaramanna**_ [AIR 1938 Madras 542] is relied upon to contend that on the death of one of the co-executants of a power-of-attorney, the agency terminates. 5. It is submitted that by a detailed interim order, this Court had injuncted the 4[th] respondent from making any appointments in the school until further orders. Though applications were filed seeking to vacate the interim order, the interim order was not vacated and permissions were granted only to make specific appointments subject to the result of the writ petition. 6. A counter affidavit has been filed on behalf of the 4[th] respondent contending that after the death of the erstwhile Manager, his second wife Kalyani had been approved as the Manager of the school till her death on 12.11.2002. Thereafter also, all the other legal heirs had accepted the appointment of 5 _**WP(C).14894/14**_ the 4[th] respondent as Manager without seeking recourse to Rules 2 and 3 of Chapter IV KER. The 4[th] respondent was appointed as Manager and such appointment was also approved. It is stated that the contention that the power-ofattorney executed by the petitioners and other legal heirs in favour of the 4[th] respondent stood terminated on death of one of the signatories is without merit. It is stated that the termination of agency contemplated under Section 201 of the Indian Contract Act does not affect the power-of-attorney executed as far as the other executants are concerned. It is stated that having been appointed as Manager and approved by the department, the petitioner can be removed only for proven misconduct and in the interest of the institution. It is further stated that the dispute is one regarding the title over immovable property and cannot be decided by educational authorities or by this Court in proceedings under Article 226 of the Constitution of India. The learned counsel places reliance on the decisions of this Court in _**Gopalakrishna Kurup v. State of Kerala**_ [2000(1) KLT 22] and _**Abdul Rahim v. State of Kerala and Others**_ [1984 KLT 773] to contend that the issue of title of a property cannot be adjudicated by educational authorities and of the Apex Court in _**Shanti**_ 6 _**WP(C).14894/14**_ _**Budhiya Vesta Patel v. Nirmala Jayprakash Tiwari**_ [2010 KHC 4277] in support of the contention that a registered powerof-attorney can be revoked only by a registered deed of revocation. 7. I have considered the contentions advanced. The issue is with regard to the consideration of the request made by the petitioners for effecting a change in the personnel of the Manager of the school. After the death of the erstwhile Manager, it appears that his second wife Kalyani had been appointed as Manager with the consent of the remaining legal heirs and she had continued as the approved Manager of the school till her death in November, 2002. Thereafter also, the legal heirs had executed a power-of-attorney nominating the 4[th] respondent as the Manager of the school. The said appointment was also approved. It appears that one of the legal heirs who had executed the power-of-attorney passed away in the year 2010. With the death of one of the Principals who had executed a joint power-of-attorney, the power-ofattorney stood revoked by operation of law as provided in Section 201 of the Indian Contract Act. Thereafter, it appears that the remaining legal heirs were not in agreement to the continuance of the 4[th] respondent as Manager. The petitioners _**WP(C).14894/14**_ 7 had therefore approached the educational authorities seeking a change of personnel of Manager. They had sought the appointment of the 2[nd] petitioner as the Manager of the school. However, no orders have been passed on the said request made by the petitioners. 8. Section 201 of the Indian Contract Act, 1872 reads as follows: “ _201._ _**Termination of agency.-** An agency is terminated by the principal revoking his authority, or by the agent renouncing the business of the agency; or by the business of the agency being completed; or by either the principal or agent dying or becoming of unsound mind; or by the principal being adjudicated an insolvent under the provisions of any Act for the time being in force for the relief of insolvent debtors.”_ 9. Rule 3 of Chapter III KER provides that the management shall be vested by the educational agency in a Manager who shall be responsible to the department for the management of the institution. Sub-rule (3) of Rule 3 provides that constitution of the educational agency shall be subject to the rules approved by the Director. The educational authorities' power to approve the appointment of the Managers and to approve changes in the personnel of the Managers is provided in Rule 4 of Chapter III KER. Rule 5 provides for reporting of all 8 _**WP(C).14894/14**_ changes in the personnel of Managers of aided institutions to educational officers. Change of management involving change of ownership is provided for in Rule 5A. Rule 7 provides for compulsory change or removal or action against the Manager in case of mismanagement, malpractice, corruption or maladministration, gross negligence of duty or disobedience of departmental instruction etc. Restrictions for appointment as Managers are provided in Rule 8. 10. A reading of the provisions of Chapter III of KER makes it clear that a change of personnel of the Manager is also contemplated by the said provisions. The said change of personnel can either be by succession in the case of an individual educational agency or by voluntary change instigated at the instance of the educational agency concerned. In the instant case, it is not in dispute that at present, the legal heirs of the deceased owner of the property constitute a corporate educational agency. The corporate educational agency has to formulate the rules by which a Manager is to be chosen from amongst them or appointed by them. Admittedly, no such rules have been framed in the instant case. Since notices have been issued for partition of the property by metes and bounds, it appears that consensus with regard to the _**WP(C).14894/14**_ 9 method for appointing a Manager is also not presently possible. In the above view of the matter, since the functioning of the school and the welfare of the students and teachers are at stake, the appointment of the Manager cannot be delayed indefinitely. A Manager who is acceptable to the majority of the legal heirs of the deceased owner of the property is to be appointed. This, according to me, is a matter for the educational authorities to take into account. 11. A Division Bench of this Court in _**Abdul Rahim v. State of Kerala and Others**_ [1984 KLT 773] has held that educational authorities are not meant to settle civil disputes between parties and decision regarding managership has to be taken without awaiting the result of prolonged litigation before civil courts. It has been held as under: _“.....The decisions of the Educational Authorities are not meant to settle civil rights of the parties to such properties. These decisions are in the nature of summary determination for the sake of expediency, without waiting for the result of a protracted litigation in a civil court. There could be no doubt that the right to agitate on questions of civil rights in a civil court would remain unaffected in spite of the decision by the Educational Authorities for the limited purpose of carrying on the functions and fulfilling the obligations under the Act. It does not, and cannot oust the_ _**WP(C).14894/14**_ 10 _jurisdiction of the civil court in matters touching the civil rights of the parties. Looked at from this angle, we do not consider it necessary to re-examine the correctness of the decision of the Division Bench in as much as in Ext.P9 what the Government did was to pass an order in exercise of powers under R.92 of Chapter XIV-A of the K.E.R., and that is for the purpose of the Act, not for determining the civil rights of the parties.”_ 12. In the facts of the instant case, I am of the opinion that the 4[th] respondent's contention that she can be removed only on a proven charge of misconduct cannot be sustained. The question to be considered is whether she has the authority of the persons who constitute the educational agency to continue as Manager. This is a matter which can be considered by the educational authorities. A Division Bench of this Court in _**Peter N.Chacko v. State of Kerala and Others**_ [2014(2) KHC 353 (DB)] has held that where a consensus cannot be arrived at in a meeting of the educational agency, the educational authorities have to rethink the modalities of managing the institution in the larger interests of the educational institutions. In the factual situation, I am of the opinion that the request made by the petitioners for removing the 4[th] respondent from the post of Manager and for appointing the 2[nd] 11 _**WP(C).14894/14**_ petitioner as Manager of the school is to be considered by the 3[rd] respondent. The issue shall be decided after hearing all the legal heirs of the deceased owner of the school. The person nominated by majority of the legal heirs shall be appointed as Manager of the school. The rules regarding management of the school provided in Rule 2 of Chapter III shall be formulated by the educational agency and submitted before the Director for approval at the earliest. If no consensus is possible on the framing of the rules, the educational authority shall take note of the opinion of the majority of the legal heirs and shall make appointment of the Manager provisionally on that basis. Orders in this regard shall be passed by the Director of Public Instructions after hearing all concerned within two months from the date of receipt of a copy of this judgment. Status quo as on today shall be maintained till then. No appointments shall be made by the 4[th] respondent till orders are passed as directed by the Director of Public Instructions. The writ petition is ordered accordingly. **ANU SIVARAMAN** _vgs_