K. Sudev(an) v. District Educational Officer, Palakkad & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **WEDNESDAY, THE 16TH DAY OF JANUARY 2013/26TH POUSHA 1934** ## **WP(C).No. 24145 of 2011 (P)** **---------------------------** **PETITIONER(S): -----------------------** **K.SUDEVAN, MANAGER,C.A.HIGH SCHOOL,PERUVEMBA, RESIDING AT 'GURUKULAM',PERUVEMBA.P.O., PALAKKAD DISTRICT.** **BY SRI.G.SHRIKUMAR,SENIOR ADVOCATE BY ADV. SRI.SREEJITH S.NAIR** ## **RESPONDENT(S):** **--------------------------** ## **1. THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD.** ## **2. THE DEPUTY DIRECTOR OF EDUCATION,** - **OFFICE OF THE DEPUTY DIRECTOR,PALAKKAD.** **3. THE DIRECTOR OF PUBLIC INSTRUCTION, OFFICE OF DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM-14.** **4. STATE OF KERALA, REPRESENTED 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 GOVERNMENT PLEADER SRI.N.SURESH R5 & R6 BY SRI.K.R.B.KAIMAL,SENIOR ADVOCATE BY ADVS.SMT.P.G.BABITHA SRI.BINOY VASUDEVAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-01-2013,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.24145/2011 P** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE ORDER OF APPROVAL DTD. 24/02/1999 ISSUED BY THE 1ST RESPONDENT.** - **P2: COPY OF THE CONSENT LETTER DTD. 24/08/1998.** - **P3: COPY OF THE JUDGMENT DTD. 30/06/2011 IN WPC.NO.8257/2009 OF THIS HON'BLE COURT.** - **P4: COPY OF THE NOTICE DTD. 29/07/2011 ISSUED BY THE 5T AND 6TH RESPONDENTS.** - **P5: COPY OF THE REPLY NOTICE DTD. 11/08/2011 ISSUED BY THE PETITIONER TO THE 5TH RESPONDENT.** - **P6: COPY OF THE NOTICE DTD. 12/08/2011 ISSUED BY THE PETITIONER ADDRESSED TO 2ND RESPONDENT.** - **P7: COPY OF THE COMMUNICATION DTD. 17/08/2011 ALONG WITH THE COPY OF THE MINUTES SENT TO THE PETITIONER.** - **P8: COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DEPUTY DIRECTOR OF EDUCATION DTD. 29/08/2011.** - **P9: COPY OF TE NOTICE DTD. 13/09/2011 FROM THE 5TH AND 6TH RESPONDENTS.** ## **RESPONDENT'S EXHIBITS:** - **R5(A): COPY OF THE FINAL DECREE DTD. 23/02/1998 OF THE SUB COURT, PALAKKAD IN O.S.NO.593/95.** - **R5(B): COPY OF THE PLAINT IN O.S.NO.96/09 OF THE SUB COURT, PALAKKAD.** - **R5(C): COPY OF THE WRITTEN STATEMENT DTD. 21/12/2009 FILED BY THE DEFENDANTS IN O.S.NO.96/09 OF THE SUB COURT, PALAKKAD.** - **R5(D): COPY OF THE JUDGMENT DTD. 30/10/2010 OF THE SUB COURT, PALAKKAD IN O.S.NO.96/09.** **..2/-** **Kss** **....2.....** ## **WPC.NO.24145/2011 P** - **R5(E): COPY OF THE PLAINT IN O.S.NO.543/09 OF THE SUB COURT,PALAKKAD.** - **R5(F): COPY OF THE ORDER DTD. 12/08/2011 OF THE SUB COURT, PALAKKAD IN I.A.NO.2478/11 IN O.S.543/09.** - **R5(G): COPY OF THE POSSESSION CERTIFICATE NO.4152/2011 DTD. 9/08/2011 ISSUED BY THE VILLAGE OFFICER, PERUVEMBA.** **R5(H): COPY OF THE AGREEMENT DTD. 08/08/2008.** - **R5(I): COPY OF THE PLAINT IN O.S.NO.452/10 BEFORE THE SUB COURT, PALAKKAD.** - **R5(J): COPY OF THE ORDER DTD. 12/10/2011 OF THE SUB COURT, PALAKKAD IN I.A.NO.1926/10 IN O.S.452/10.** - **R5(K): COPY OF THE ADVERTISEMENT PUBLISHED IN THE MALAYALA MANORAMA DAILY DTD. 21/09/2011.** - **R5(L): COPY OF THE ADVERTISEMENT PUBLISHED IN THE MALAYALA MANORAMA DAILY DTD. 2/11/2011.** - **R5(M):COPY OF THE ADVERTISEMENT PUBLISHED IN THE MALAYALA MANORAMA DAILY DTD. 27/11/2011.** ## **/TRUE COPY/** ## **P.A.TO JUDGE** **Kss** ## **A.M.SHAFFIQUE, J * * * * * * * * * * * * *** W.P.C.No.24145 of 2011 ---------------------------------------Dated this the 16[th] day of January 2013 ## **J U D G M E N T** The petitioner challenges Ext.P8 order passed by the Deputy Director of Education Department whereby the Constitution of the Corporate Educational Agency has been approved in terms of Rule 2 of Chapter III of Kerala Education Act. 2. The main contention of the petitioner as disclosed from the factual circumstances of the case is that the property of the School was originally vested with the petitioner's father who himself was the Manager of the School and on his death the petitioner was appointed as Manager by mutual consent of all the legal heirs which was approved by the department in terms of Ext.P1. Ext.P2 is the consent letter given by the legal heirs in that regard. 3. Steps were taken by the department to oust the petitioner from the position of Manager which was W.P.C.No.24145/2011 2 challenged by him and Ext.P3 is the judgment in W.P.C.No.8257/2009 in which this Court had categorically held that the Deputy Director of Education did not comply with an early judgment of this Court in W.P.C.No.25235 of 2008 and found that the reasons stated by the department in the impugned order was not in terms with the decision in the said judgment. This Court, therefore, came to a finding in paragraph 32 of the said judgment that there is no material before the department to initiate action against the Manager under Rule 7 of Chapter III of KER and accordingly the said proceedings were quashed. 4. The complaint of the petitioner is that subsequent to Ext.P3 judgment dated 30/06/2011, an attempt was made by the other owners of the property to oust the petitioner from the position of Manager and Respondents 5 and 6 issued Ext.P4 notice dated 29/07/2011 convening a meeting to be held on 15/08/2011 for the purpose of framing Rules in terms of Rule 2 of Chapter III of KER. The petitioner W.P.C.No.24145/2011 3 sent a reply Ext.P5 stating that the school is an individual educational agency and not under corporate educational agency and therefore the decision of convening a meeting is against law and that respondents 5 and 6 who had issued notice have no right to convene such a meeting. 5. He also addressed a letter to the Deputy Director of Education on 12/08/2011 produced as Ext.P6 inter alia stating that respondents 5 and 6 were trying to convene a meeting for which they have no right. Still further, it is stated that the school is an individual educational agency and not corporate educational Agency and therefore no such meeting could be convened. It is also stated that by virtue of judgment in W.P.C.No.8257 of 2009, the petitioner was given charge as the Manager by respondents 5 and 6 and therefore they have no right to convene a meeting without the permission of the petitioner. 6. Still a meeting seems to have been held and Ext.P7 is the minutes of the said meeting by which it is inter W.P.C.No.24145/2011 4 alia decided by respondents 5 and 6 that the bye-law has to be sent for approval to the Deputy Director of Education. Ext.P8 is the order passed by the Deputy Director of Education approving the bye-law/constitution of the management. 7. The contention urged by the petitioner is that the school being an individual educational agency, respondents 5 and 6 have no right to convene a meeting and whatever they had done by framing bye-laws is illegal and that apart, at the time of passing Ext.P8 order the petitioner was not heard and there is violation of principles of natural justice. It is also contended that respondents 5 and 6 along with the educational authorities were attempting to remove the petitioner from the position of the Manager which is evident from the earlier proceedings reflected in Ext.P3 judgment. Pursuant to Ext.P8 order, Ext.P9 has been issued and the attempt is to remove the petitioner from the position of Manager. W.P.C.No.24145/2011 5 8. The 2[nd] respondent Deputy Director of Education has filed counter affidavit inter alia supporting the stand taken at Ext.P8. They however contended that the authority of the Deputy Director of Education is only to consider the question as to whether the approval of the Rules is in terms with Rule 2 of Chapter III of KER and they are not concerned with the internal dispute between the parties. Hence hearing the petitioner was unnecessary. 9. Counter affidavit is filed by respondents 5 and 6 inter alia contending that after the death of their father, the petitioner was permitted to act as Manager and while so, certain steps were taken by the Deputy Director of Education to disqualify the Manager. But, according to them, that has nothing to do with the present steps taken by the corporate educational agency since after the death of their father, the School has to be considered as corporate educational agency and though Rules were not framed, W.P.C.No.24145/2011 6 after a decree passed in the case in O.S.No.593/1995 the school property had been allotted to the share of the petitioner and respondents 5 and 6 and they alone have the right to manage the school as a corporate educational agency. Hence the school cannot be treated as an individual educational agency. Still further, it is contended that the petitioner was acting against the interests of respondents 5 and 6 on account of which he had even executed fraudulent power of attorney and had even agreed to sell the property of the school in favour of a third party who filed O.S.No.96/2009 before the Sub Court, Palakkad which is pending consideration. Ext.R5(a) is the decree passed in the partition suit. 10. It is also contended that in another suit filed by the petitioner as O.S.No.543/2009 before the Sub Court, Palakkad, the petitioner had filed I.A.No.2478/2011 for an interim injunction to restrain respondents 5 and 6 from conducting the meeting concerned as per Ext.P4 notice. W.P.C.No.24145/2011 7 Ext.R5(f) is the order by which the prayer for interim injunction was refused. Ext.R5(i) is the suit filed by one P.S.Sasikumar seeking specific performance of the agreement allegedly executed by the petitioner in his favour agreeing to assign 1/3[rd] of the share of the petitioner as well as 2/3[rd] of the share of respondents 5 and 6. Ext.R5(j) is the interim order in the said suit restraining the respondent in the said suit/the petitioner herein from transferring the plaint schedule property in the said suit. 11. Heard Sri.G.Shrikumar, learned senior counsel for the petitioner, Sri.K.R.B.Kaimal, learned senior counsel for respondents 5 and 6 and the learned Government Pleader. 12. The questions to be considered are : i) whether the school is an individual educational agency or a corporate educational agency ii) whether respondents 5 and 6 are entitled to convene a meeting. W.P.C.No.24145/2011 8 iii) Whether Ext.P8 is issued in violation of principles of natural justice and iv) whether there is any mala fides on the part of official respondents. 13. The relevant classification of private schools is stipulated in Rule 1 of Chapter III of KER which reads as follows: 1. **Classification of Private Educational Institution.-** Private Educational Institutions may be 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 W.P.C.No.24145/2011 9 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.” 14. A Division Bench of this Court in **Somanatha Pillai v. State of Kerala** [2007(1) KLT 127] has come to the conclusion that if, after the death of an individual who had the right to conduct the school in his own capacity, his rights are inherited by one or more of the legal representatives and if it is not devolved on any particular individual and devolves on more than one person, it will become a corporate educational agency. It is not in dispute that in the partition suit filed between the parties, compromise decree came into existence by virtue of which petitioner and respondents 5 and 6 became owners of the property in which the school is functioning. Therefore, W.P.C.No.24145/2011 10 going by the judgment of the Division Bench of this Court in **Somanatha Pillai's case** (Supra) the moment the property devolves upon one or more persons, it has to be treated as a corporate educational agency though they have not framed the rules at the relevant point of time. By mutual consent the petitioner was made the Manager of the school. That by itself does not mean that the school can be treated as an individual educational agency and therefore the manager who is appointed by consent and approved by education department has to be treated as Manager of the corporate educational agency at all point of time. 15. The next question to be considered is whether other members of the Corporate Management has a right to frame Rules by convening a meeting. It cannot be disputed that the other members are entitled to convene a meeting in order to frame necessary Rules of the corporate educational agency. The petitioner admits having received Ext.P4 notice. He had sent a reply by way of Ext.P5 stating that W.P.C.No.24145/2011 11 respondents 5 and 6 have no right to convene a meeting. There is no basis for such a contention and therefore the convening of the meeting by respondents 5 and 6 cannot be questioned at all. The fact remains that the meeting had been held and the Rules were approved by the members who attended the meeting and the same had been sent for approval in terms of Rule 2 of Chapter III of KER. 16. The next question is while approving the rules framed by the Corporate Educational Agency whether any notice is to be issued to persons who did not attend the meeting or to any of the members or to the Manager. Rule 2 of Chapter III of KER 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 W.P.C.No.24145/2011 12 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 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.” 17. There is no provision under Rule 2 whereby the Director of Education or the Deputy Director of Education as the case may has to issue notice to all the members of the Corporate Educational Agency while approving the W.P.C.No.24145/2011 13 Rules. That apart, on a bare reading of Rule 2 indicates that the obligation of the Director of Education or Deputy Director of Education as the case may be is to verify whether the Rules have been framed in accordance with the provisions of the Act or Rules. Even assuming that, in view of Ext.P6 issued by the petitioner he requires to be heard, what turns out would be for a consideration of the fact whether it is an individual educational agency or a corporate educational agency. There cannot be any dispute regarding the fact that the school is a corporate educational agency and therefore such a question does not arise for consideration. Even assuming that notice had been issued to the petitioner it would only be an empty formality. The petitioner cannot challenge the validity of the meeting before the said authority. Hence I do not think that there is any justification on the part of the petitioner to insist for notice from the Deputy Director of Education before passing Ext.P8 order. W.P.C.No.24145/2011 14 18. In regard to the allegation of mala fides, it can be seen that an attempt has been made by the department to oust the petitioner from the position of Manager which was interfered by Ext.P3 judgment. But that by itself does not mean that the other co-owners cannot exercise their independent right and frame Rules under the Statute. As far as other members of the Corporate Management are concerned, they have their own individual rights and they have exercised such rights. Hence I do not think that any mala fides can be attributed to official respondents. As far as 2[nd] respondent is concerned, he has acted in terms of Ext.P7. He has nothing to do with the actions taken by respondents 5 and 6 as members of the corporate educational agency. 19. That being the situation, I do not think that petitioner has any legal right to challenge Ext.P8 or seek the reliefs as prayed for. W.P.C.No.24145/2011 15 Accordingly writ petition is dismissed. (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.24145/2011 16 W.P.C.No.24145/2011 17