K. Sudevan, Manager, C.A. High School, Peruvemba v. District Educational Officer, Palakkad and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE MRS. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 12TH DAY OF FEBRUARY 2013/23RD MAGHA 1934 WA.No. 253 of 2013 () IN WP(C).24145/2011 -----------------------------------------AGAINST JUDGMENT IN WP(C).24145/2011 of HIGH COURT OF KERALA DATED 16-01-2013 ## APPELLANT/PETITIONER: ------------------------------------- K.SUDEVAN, MANAGER, C.A.HIGH SCHOOL, PERUVEMBA, RESIDING AT 'GURUKULAM', PERUVEMBA P.O., PALAKKAD DISTRICT. BY ADVS.SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN RESPONDENTS/RESPONDENTS: ---------------------------------------------------- 1. THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD 2. THE DEPUTY DIRECTOR OF EDUCTION, OFFICE OF THE DEPUTY DIRECTOR, PALAKKAD. 3. THE DIRECTOR OF PUBLIC INSTRUCTION, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM - 14. 4. STATE OF KERALA, REP. BY ITS SECRETARY TO GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 5. SANTHAKUMARY, W/O.RAMACHANDRAN, KARUMATHIL KALAM, KARUPPALLI, VADUVANNOOR P.O., PALAKKAD DISTRICT. 6. K.VASANTHAKUMARY, AMBALASSERY HOUSE, VADAKKANCHERRY, PALAKKAD DISTRICT. R1 TO R4 BY SR. GOVT. PLEADER MR.P.I.DAVIS R5-R6 BY SR. ADV.SRI.K.R.B.KAIMAL & ADV.SRI.BINOY VASUDEVAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **MANJULA CHELLUR, C.J. & K. VINOD CHANDRAN, J. ----------------------------------------------------** ## **W.A. No.253 of 2013** **---------------------------------------------------Dated this the 12[th] day of February, 2013** ## **Judgment** ## **Manjula Chellur, C.J.** By consent of both Senior Counsel Mr.N.N.Sugunapalan for appellant and Mr.K.R.B.Kaimal for party respondents, the matter is heard and disposed of on merits. 2. The appellant was the writ petitioner who approached the learned Single Judge challenging Ext.P8 order of the Deputy Director of Education, Palakkad whereby constitution of the Corporate Educational Agency has been approved in terms of Rule 2 of Chaper III of K.E.R. framed under the Kerala Education Act. The facts leading to the present situation, in brief, is stated as under: The property of the school vested with one Mr.Kunjalan who is none other than the father of the appellant and the party respondents. On his death, according to appellant-petitioner, he was appointed as Manager by mutual consent of all other legal heirs which came to be approved by the Department as envisaged under Ext.P1. According to him, Ext.P2 is the consent W.A.253/13 2 letter given by the legal heirs in that regard. He approached this Court on earlier occasion also in W.P.C.No.8257 of 2009 wherein an observation came to be made that the directions in the earlier judgment of this Court in W.P.(C) No.25235 of 2008 was not followed. Several facts came to be brought on record to contend that the management of the School in question has to be managed by him as it is an Individual Educational Agency. Therefore, none of other members of the family, especially, party respondents 5 and 6 herein, have any right to convene any meeting and take a decision regarding the management. 3. It is not in dispute that O.S.No.593 of 1995 was a suit for partition of the family properties of father of the appellant and party respondents. It also ended in a consent decree under which the School property came to the share of the appellant and his two sisters, party respondents 5 and 6 herein. Though the appellant claims all legal heirs gave consent letter, after going through the contents of Ext.P2, we note it is not so. Only those sharers to whom the School property and other properties came to be allotted alone gave consent to appoint the present appellant as the Manager of the School in question. As a matter of fact, as W.A.253/13 3 per terms of the decree which is at Ext.R5(a), apart from the School property, other properties also came to be allotted jointly in favour of the appellant and his two sisters, party respondents 5 and 6 herein. It was agreed that the mother would be the Manager of the School. But on account of old age and ailments, she refused to undertake the responsibility of the management of the School. Therefore, the management was entrusted to the appellant herein; as Manager. As co-owners of the property, party respondents 5 and 6 also gave consent to appoint the appellant as the Manager of the School which, as already stated above, came to be ratified by the authorities of the Education Department. 4. There was smooth functioning of the School after the decree and according to respondents 5 and 6, the appellant tried to ignore their rights, interest and title in the School by not allowing them to enter into the School. According to respondents 5 and 6, they were not allowed to enter into the School. In other words, when they were not allowed to participate in the management of the School, the dispute arose between the parties. Therefore, respondents 5 and 6 convened a meeting to W.A.253/13 4 frame the rules which came to be placed before the authority concerned for ratification. At this stage, the present writ petition is filed wherein the main contention of the appellant-petitioner is that the educational institution in question has to be considered as an Individual Educational Agency and not a Corporate Educational Agency. According to him, Rule 1 of Chapter-III of K.E.R. clearly indicates when it can be considered as an Individual Educational Agency and according to him, Ext.P2 would clearly attract the definition of Individual Educational Agency. Therefore, there was no justification on the part of the A.E.O. and also the learned Single Judge to opine that the School in question is a Corporate Educational Agency. 5. As against this, learned Senior Counsel Mr.K.R.B.Kaimal brought to our notice the exact terms of Ext.P2 apart from subrule (3) of Rule 3 of Chapter III of K.E.R. It is necessary to reproduce the above said rules in order to understand the factual situation in the present case. Rules 1, 2 and 3 of Chapter III read as under: ## 1. **Classification of private Educational Institutions-** Private Educational Institutions may be W.A.253/13 5 classified into two categories viz (i) those under individual Educational Agency and (ii) those under Corporate Educational Agency. Where the right to conduct the school is vested in an individual in his own right or as the legal representative of a joint family, the Educational Agency shall be termed 'Individual Educational Agency', and in all other cases the Educational Agency shall be termed 'Corporate Educational Agency'. Corporate Educational Agency shall include cases where the right is vested in (a) two or more persons jointly with written registered agreement (b) a Board or Society or Association or Company or institution registered under a statute or created by a statute (c) an institution of Trust and (d) an ecclesiastical office of any religious denomination. 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 proprietory 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 W.A.253/13 6 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. ## 3. **Management to be vested in a Manager-** (1) The Management of every aided school may be vested by the Educational Agency in a person who shall be referred to as the Manager and who shall be responsible to the department for the management of the institution. (2) In the case of aided institutions under individual management the individual proprietor may be the Manager. (3) In the case of aided institutions under Corporate management the proprietory body may choose the Manager in accordance with the rules in that behalf referred to in Rule 2. (4) The Educational Agency shall be bound by the acts of the Manager. Rule 1 refers to classification of Private Educational Institutions W.A.253/13 7 wherein it clearly indicates under what circumstances a Private Educational Institution could be termed as Individual Educational Agency. It also refers to the situation when an Educational Institution could be termed as Corporate Educational Agency. 6. The learned Single Judge referred to the judgment of the Division Bench of this Court in **Somanatha Pillai v. State of Kerala** (2007(1) KLT 127). In the said case, it was a situation after the death of the Manager, the entire property by succession devolved upon the legal heirs of the deceased and the Division Bench held that in that situation, it has to be held as a Corporate Educational Agency and it further says that the death of the earlier Manager and especially when the property devolves upon more than two persons, it has to be a Corporate Educational Agency. The present case may not be a similar situation. But the fact remains, in the absence of final decree in the partition suit, the situation would have been the same. But in the present case, by virtue of a partition decree, the property has been allotted not only to the appellant-writ petitioner but also to his two sisters, respondents 5 and 6. As the mother was unable to act as Manager, the duties of Manager alone came to be entrusted to W.A.253/13 8 the appellant-writ petitioner for which consent of other sharers was required and Ext.P2 is the document under which consent was given by respondents 5 and 6. According to learned counsel for the appellant, Ext.P2 clearly shows relinquishment of rights of the respondents 5 and 6. If at all it has to be considered as a document of relinquishing any rights that came to the share of respondents 5 and 6, this is not a forum where such rights could be decided. If any declaration of absolute right in favour of the appellant-petitioner has to be given in order to appreciate his stand that the educational institution is an Individual Educational Agency, he has to first get declaration of his absolute right over the management of the School. Now, one has to go by Chapter III of the K.E.R. in order to understand the classification of the educational institution in question, one has to see whether the right to conduct the School is vested in the appellant-writ petitioner in his own right which is evidently absent from the contents of Ext.P2 and the decree at Ext.R5(a). In the absence of such right vested in him as an individual right, when the right of management is vested with more than two persons, i.e., appellant and respondents 5 and 6, then it has to be classified as W.A.253/13 9 a Corporate Educational Agency. Once it is classified as a Corporate Educational Agency in accordance with the rules envisaged under the Kerala Education Act, the term to act as a Manager has to be by rotation and we are not concerned with that issue now. We are only concerned with the order at Ext.P8 approving the decision taken by other two owners or members. Ext.P8 is the order approving the by-laws made at the instance of respondents 5 and 6. The learned Single Judge has gone into each and every aspect, including the rules envisaged for the purpose and we are of the opinion, no grounds are made out by the present appellant persuading us to interfere with the opinion of the learned Single Judge. Accordingly, the Writ Appeal is dismissed. **MANJULA CHELLUR, CHIEF JUSTICE.** ## **K. VINOD CHANDRAN, JUDGE.** srd W.A.253/13 10