Krishnadasan v. Vipin C and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE ``` ``` & ``` ``` THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN ``` ``` THURSDAY, THE 12[TH] DAY OF OCTOBER 2023 / 20TH ASWINA, 1945 ``` ``` WA NO. 1218OF 2023 ``` ``` AGAINST THE JUDGMENT WP(C) 42169/2018 DT 23/3/2023 OF HIGH COURT OF KERALA ``` ## **`APPELLANT/S:`** ``` KRISHNADASAN.C, AGED 50 YEARS S/O.PARAMESWARAN EZHUTHASSAN, CHEMBRA HOUSE, KIZHAKKEKKARA KOKKATH, MANISSERY.P.O., OTTAPALAM, PALAKKAD DISTRICT. (FULL TIME HINDI TEACHER, CUPS, CHEMBRA, PALAKKAD DISTRICT, PIN - 679521 BY ADVS. M.SAJJAD S.SREEKUMAR (SR.)(S-571) ``` ``` WA Nos.1218/2023 & 1292/2023 ``` ## -:2:- ## **`RESPONDENT/S:`** - `1 VIPIN C, S/O.C.VASUDEVAN, CHEMBRA HOUSE, P.O CHEMBRA, VIA. THIRUVEGAPPURA PALAKKAD, PIN - 679304` - `2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEX- II, THIRUVANANTHAPURAM, PIN - 695001` - `3 THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM, (NOW CHANGED AS THE DIRECTOR OF GENERAL EDUCATION), PIN - 695014` - `4 DISTRICT EDUCATIONAL OFFICER, OTTAPALAM, PALAKKAD DISTRICT, PIN - 679101` - `5 ASSISTANT EDUCATIONAL OFFICER, PATTAMBI, PALAKKAD DISTRICT, PIN - 679303 BY ADVS.` - `SRI.SANTHEEP ANKARATH GOVERNMENT PLEADER (B/O) PARVATHY SRIKUMAR(K/001674/2023)` ``` THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06.10.2023, ALONG WITH WA.1292/2023, THE COURT ON 12/10/2023 DELIVERED THE FOLLOWING: ``` ``` WA Nos.1218/2023 & 1292/2023 ``` -:3:- ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE ``` **==> picture [8 x 8] intentionally omitted <==** ``` THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN ``` ``` THURSDAY, THE 12[TH] DAY OF OCTOBER 2023 / 20TH ASWINA, 1945 ``` ``` WA NO. 1292 OF 2023 ``` ``` AGAINST THE JUDGMENT WP(C) 29749/2022 DT 23/3/2023 OF HIGH COURT OF KERALA ``` ## **`APPELLANT/S:`** ``` KRISHNADASAN, AGED 51 YEARS S/O. PARAMESWARAN EZHUTHACHAN, KIZHAKKEKARA KOKKATH HOUSE, MANISSERY P.O., OTTAPPALAM VIA, PALAKKAD, PIN - 679521 BY ADVS. K.R.VINOD M.S.LETHA ``` ## **`WA Nos.1218/2023 & 1292/2023`** -:4:- ## **`RESPONDENT/S:`** ``` 1THE VILLAGE OFFICER, THIRUVEGAPPURA VILLAGE, THIRUVEGAPPURA P.O., PALAKKAD,, PIN - 679304 2THE TAHSILDAR, PATTAMBI TALUK, MINI CIVIL STATION, PATTAMBI, PIN: 670 303., PIN - 670303 3VIPIN C., S/O C.VASUDEVAN, CHEMBRA HOUSE, CHEMBRA P.O,THIRUVEGAPPURA, PALAKKAD,PIN-679304., PIN - 679304 BY ADVS. GOVERNMENT PLEADER SANTHEEP ANKARATH PARVATHY SRIKUMAR(K/001674/2023) ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.10.2023, ALONG WITH WA.1218/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WA Nos.1218/2023 & 1292/2023 ``` -:5:- ## **`A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ.`** ``` ----------------------------------------- ``` ``` W.A. Nos.1218/2023 & 1292/2023 ``` ``` ----------------------------------------- ``` ``` Dated this the 12[th] day of October, 2023 ``` ``` J U D G M E N T ``` ## `A.Muhamed Mustaque, J.` ``` These appeals are related to a dispute of managership of a school and payment of land tax in regard to the properties where the school building is located. ``` ``` 2. Shorn of unnecessary pleadings which have been aptly referred to in the impugned judgment, we only reiterate bare factual disputes to understand the point of law involved in the matter. ``` ``` 3. The appellant Krishnadasan in both the cases claims exclusive ownership of the school building and landed property thereon based on a registered Will executed by late Lakshmikutty Amma, who was admittedly the former Manager of the school. If the Will is found not genuine, ``` ``` WA Nos.1218/2023 & 1292/2023 ``` ## -:6:- ``` Shri Vipin and others will be the co-owners along with Krishnadasan. Vipin has a case that Lakshmikutty Amma is having only fractional share, therefore, even if his Will is found genuine, Krishnadasan can have only a fractional share. ``` ``` 4. The dispute arose in the context of the approval of Krishnadasan as a Manager. The Government appointed Krishnadasan as the Manager noting the fact that, ever since the death of Lakshmikutty Amma on 7/3/2017, the school is being run without a Manager. Krishnadasan is a school teacher. There is a bar under the Kerala Education Rules to appoint him as a Manager. The Government relaxed that bar and approved him as the Manager. ``` ``` 5. There are two issues in the matter. One is based on the exclusive claim of Krishnadasan. Second, the exemption granted to Krishnadasan. ``` ``` 6. The learned Single Judge on a challenge initiated by Vipin set aside the order granting approval to Krishnadasan and also the exemption granted to him. ``` ``` WA Nos.1218/2023 & 1292/2023 ``` ## -:7:- ``` 7. The learned Single Judge relied on two precedents cited at the Bar. Sabitha K.V. v. Satheesan K.V. and Others [2022 (1) KHC 9] and K.K.Moidu v. State of Kerala and others [1973 KHC 350]. ``` ``` 8. In Sabitha’s case (supra), the Division Bench of this Court held that when there is a dispute regarding Will, it can be resolved only by a Civil Court and such a question cannot be decided by educational authorities. That was a case where a claim was made for approval of Manager based on an unregistered Will and the educational authorities refused to acknowledge the Will for approving the same. We are not disagreeing with the proposition laid down in Sabitha's case, as we note that it is not for the educational authorities to decide upon the validity of the Will and pass orders thereon. We cannot also remain oblivious to the fact that in a matter where a person claims exclusive title based on a Will, when there is serious dispute, it is not safe to acknowledge a person as a Manager. However, as per the objector’s version, if such person is a co-owner, nothing prevents to acknowledge a person who set up the Will as the Manager subject to the safeguards to be made. It is not in the realm of public authority or for this Court in public law remedy to acknowledge or disprove genuineness or validity of the Will. The Court should relegate such disputes to the civil ``` ## **`WA Nos.1218/2023 & 1292/2023`** ## -:8:- ``` court. However, at the same time, the court cannot ignore existence of rights of such parties based on admitted facts. There is no dispute to the fact that Krishnadasan is a co-owner. Rest of the disputes regarding genuineness of the Will can be decided in an appropriate manner. No doubt in the given case, if the person sets up the Will and has no semblance or title in the property, it is not safe for the Court to place reliance on disputed Will, as rightly noted in Sabitha’s case (supra). In the given circumstances, Krishnadasan being the co-owner even as per the admitted facts of the parties, we find nothing wrong in acknowledging him as a Manager, provisionally, subject to civil rights of the parties based on their interest claimed in the property. The court in such circumstances needs to consider the matter in perspective of the school and not in a manner put forward by the parties. There cannot be a situation where the school is being run without a manager. Since the Government had acknowledged Krishnadasan’s right as a Manager, this Court need not substitute that view. No doubt, this cannot be in derogation of the claim put forward by Vipin. In such a situation, the Court has to safeguard the interest of the school on one hand and the interest of the persons, who are objecting, on the other hand. We are thus of the view that Krishnadasan being a co-owner on the admitted ``` ## **`WA Nos.1218/2023 & 1292/2023`** ## -:9:- ``` facts, there is nothing wrong in acknowledging him as the manager, provisionally, till the actual dispute is resolved through the civil court. ``` ``` 9. There is yet another impediment in recognising Krishnadasan as the Manager. In Chapter III Rule 8(2) of the Kerala Education Rules, it is stipulated as follows: ``` ``` 8(2). No employee of the Government or of a local body or of an undertaking, company or corporation owned or controlled by the Government shall be the manager or a member or other office bearer of the managing body, if any, of a school unless it is in an ex-office capacity. ``` ``` Provided that this sub-rule shall not apply to part time Government servants other than those employed in schools. ``` ``` 10. Admittedly, this bar would apply to Krishnadasan. However, the Government granted an exemption placing reliance on Rule 3 of Chapter I of the Kerala Education Rules which reads thus: ``` ``` Where the Government are satisfied that the operation of any rule under these Rules causes undue hardship in any particular case, the Government may dispense with or relax the requirements of that rule to such extent and subject to such conditions as they may consider necessary for dealing with the case in a just and equitable manner. ``` ``` 11. In K.K. Moidu’s case (supra) this Court held that Rule for ``` ``` exemption cannot be used in such a manner directly opposed to the provisions contained in the other Rules. It was further held that the ``` ## **`WA Nos.1218/2023 & 1292/2023`** ## -:10:- ``` purport of Rule 3 is to grant a relaxation of rigour of any provisions of the Kerala Education Rules in special cases. As noted in K.K.Moidu’s case, the power under Rule of exemption cannot be used to militate other provisions but it can be used to relax any rigour. That means, if the Rule bars an employee of the State Government from becoming a Manager, that Rule can be relaxed. In such circumstances, the wisdom of the Government in exempting Krishnadasan cannot be subjected to judicial review. ``` ``` 12. Krishnadasan approached this Court with another writ petition to pay land tax. That was declined in view of the dispute raised by Vipin. We cannot acknowledge exclusive ownership of Krishnadasan over the land. However, nothing prevents him from payment of land tax as a co-owner without prejudice to his claim of exclusive ownership based on the Will in an appropriate manner, if he so requires such land tax receipt to be produced before any public authorities. ``` ``` 13. In the light of the above discussions, these appeals are disposed in the following manner: ``` ``` i. The impugned judgment is set aside. ``` ``` WA Nos.1218/2023 & 1292/2023 ``` **==> picture [29 x 9] intentionally omitted <==** ``` ii. Krishnadasan can continue as a Manager, provisionally, subject to the outcome of any civil suit. ``` ``` iii. Krishnadasan shall not make any appointment in any vacancies for a period of three months. ``` ``` iv. Parties are advised to move civil court for adjudicating the disputes. ``` ``` v. If parties fail to move the civil court within three months, the appointment of Krishnadasan as the Manager can be regularised. ``` ``` vi. In the event any of the parties move the civil court, the parties can seek effective relief from the civil court in regard to payment of land tax etc. ``` ``` vii. For making appointment in any vacancy, Krishnadasan shall approach the Educational Authority. In that event, the Educational Authority, after hearing all affected persons including Vipin can pass orders. No appointment shall be made without previous permission as above. ``` ``` WA Nos.1218/2023 & 1292/2023 ``` -:12:- ``` viii. We make it clear that in the event the dispute reaches civil court, continuation of Krishnadasan will be subject to outcome of the civil suit. ``` ``` Sd/- ``` ``` A. MUHAMED MUSTAQUE, JUDGE ``` ``` Sd/- SHOBA ANNAMMA EAPEN, JUDGE ``` ``` ms ``` ``` WA Nos.1218/2023 & 1292/2023 ``` -:13:- ## **`APPENDIX OF WA 1218/2023`** ``` APPELLANT’S ANNEXURES Annexure -ITRUE COPY OF THE ORDER IN R.P NO. 479/2023 IN W.P(C) NO. 42169/2018 DATED 05.06.2023 Annexure -IITRUE COPY OF THE HEARING NOTICE NUMBER GEDN - F2/4/2019 - G.EDN DATED 12.06.2023 ```