N. Sarada v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY, THE 31ST DAY OF OCTOBER 2016/9TH KARTHIKA, 1938** ## **WP(C).No. 32188 of 2009 (P)** **------------------------------------------** ## **PETITIONER(S) :** **--------------------------** **N.SARADA, W/O.A.GOPALANKUTTY, RESIDING AT NEELANCHERRY HOUSE, KIZHAKKUMPURAM P.O., MANNUR, PALAKKAD-678 642.** **BY ADVS. SRI.P.S.APPU SRI.C.A.ANOOP SRI.JIBU P THOMAS SRI.A.R.NIMOD SRI.T.C.SURESH MENON** **RESPONDENT(S) :** - **----------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD.** **3. THE ASSISTANT EDUCATIONAL OFFICER, PARLI, PALAKKAD.** **4. M.V.SASIKUMAR, S/O.LATE THAYUKUTTY VARASYAR, KOTTAKKAL ARYA VAIDYASALA AGENCY, AYILYAM COMPLEX, MELAMURI, PALAKKAD.** ## *** ADDITIONAL R5 IMPLEADED** **5. T.A.SASIDHARAN, AGED 59 YEARS, S/O.GOPALAN NAIR, ADIYARATH HOUSE, KINAVALLOOR, PALAKKAD TALUK.** - **ADDITIONAL R5 IS IMPLEADED AS PER ORDER DATED 27.02.2013 IN I.A.NO. 2964 OF 2013.** **R1 TO R3 BY GOVERNMENT PLEADER SMT. PRINCY XAVIER R4 BY ADV. SRI.U.BALAGANGADHARAN ADDL-R5 BY ADV. SRI.GEORGE SEBASTIAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. **WP(C).No. 32188 of 2009 (P) ------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** - **EXHIBIT P1: TRUE COPY OF THE ORDER OF APPOINTMENT DATED 30.07.1996.** - **EXHIBIT P2: TRUE COPY OF THE ORDER ISSUED BY THIRD RESPONDENT DATED 02.12.1996.** - **EXHIBIT P3: TRUE COPY OF THE SALE DEED DATED 31.08.1996.** - **EXHIBIT P4: TRUE COPY OF THE AGREEMENT FOR DALE DATED 30.07.1996.** - **EXHIBIT P5: TRUE COPY OF THE ORDER OF CANCELLATION ISSUED BY THE THIRD RESPONDENT DATED 04.05.2006.** - **EXHIBIT P6: TRUE COPY OF THE ORDER ISSUED BY THE SECOND RESPONDENT DATED 25.04.2008.** - **EXHIBIT P7: TRUE COPY OF THE REVISION PETITION SUBMITTED BY THE PETITIONER TO THE FIRST RESPONDENT DATED 07.06.2008.** - **EXHIBIT P8: TRUE COPY OF THE ORDER PASSED BY THE FIRST RESPONDENT 23.04.2009.** ## **RESPONDENT(S)' EXHIBITS :** **EXHIBIT R5(A):** **A TRUE COPY OF THE DECREE DATED 22.11.2008 PASSED BY THE PRINCIPAL MUNSIFF COURT, PALAKKAD IN O.S.NO. 65/2007.** ## **EXHIBIT R5(B):** **A TRUE COPY OF THE ORDER DATED 28.01.2010 PASSED BY THE 3RD RESPONDENT APPROVING THE 4TH RESPONDENT AS THE MANAGER.** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## **P.V.ASHA J.** ## **-------------------------------------------W.P.(C) No.32188 of 2009** **---------------------------------------------** Dated this the 31[st] day of October, 2016 ## **J U D G M E N T** The petitioner was the Manager of Aided Lower Primary School, Kinavallur, on being appointed as per Ext.P1 order dated 30.07.1996. The Aided Lower Primary School, Kinavallur, (hereinafter referred to as 'the School'), which is an Aided School governed by the provisions contained in Kerala Education Act and Rules was in the joint ownership of M/s.M.V.Narayanankutty and M.V.Sasikumar. As per Ext.P1, Shri M.V.Narayanankutty who was the then Manager appointed the petitioner as Manager with effect from 01.08.1996 stating that he would be out of station and would not be able to run the school smoothly. It was stated that her appointment would not involve change of ownership. The appointment of the petitioner was approved as per Ext.P2 order dated 02.12.1996. As per Ext.P3 sale deed dated 31.08.1996 the share of Shri M.V.Sasikumar was assigned to the petitioner. The petitioner had entered into an agreement with Shri M.V.Narayanankutty for assigning his share as per Ext.P4 dated 30.07.1996. While she was continuing as such, the former Manager Shri M.V.Narayanankutty cancelled her appointment and he himself W.P.(C) No.32188 of 2009 2 took charge as Manager with effect from 01.04.2006. The Assistant Educational Officer, Parli approved the cancellation of the Managership of the petitioner and the appointment of Shri M.V.Narayanankutty, as per Ext.P5 order dated 04.05.2006. Petitioner submits that she was conducting the affairs of the school smoothly on the basis of the orders Ext.P1, Ext.P2 sale deed as well as Ext.P3 agreement for sale without any interference from others. It is also stated that but for a sum of Rs.5,000/- towards the balance, the entire consideration towards the sale of the share of Shri M.V.Narayanankutty was already paid, and it was at that stage that she was removed from managership. 2. Aggrieved by Ext.P5, she submitted a complaint before the Director of Public Instruction. The Director of Public Instruction, as per Ext.P6 order upheld the order of the AEO, seeing that the transfer of the share of Sri Sasikumar to petitioner without the permission of the Department was in violation of Section 6 of the Kerala Education Act and hence illegal. It was found that Shri M.V.Narayanankutty did not execute any sale deed, even though there was an agreement. Under those circumstances, it was ordered that petitioner who was appointed as Manager on a temporary basis cannot be W.P.(C) No.32188 of 2009 3 allowed to continue, when the former Manager returned. However, seeing that the petitioner had approached the Munsiff's Court in O.S.No.65 of 2007, in respect of the agreement executed with Shri M.V.Narayanankutty, the Director of Public Instruction made it clear that the orders passed would be subject to the decision of the Munsiff's Court. 3. The petitioner thereupon approached the Government submitting Ext.P7 revision petition. In the meanwhile, Shri M.V.Narayanankutty expired on 12.09.2007. Government after hearing the petitioner as well as the respondents, upheld the order of the Director of Public Instruction. Government also found that any transaction made in respect of the properties of this School has to be done with the previous permission in writing of an officer not below the rank of District Educational Officer. In this case assignment in favour of the petitioner was only in respect of the share of one of the owners of the property and petitioner was a person who was appointed as a Manager when this School was owned by M/s.M.V.Narayanankutty and M.V.Sasikumar jointly. In the meanwhile, it was seen that Shri M.V.Narayanankutty has also alienated the property to the additional respondents in this case. However, the issue under consideration before the W.P.(C) No.32188 of 2009 4 Government was whether the cancellation of the Managership of the petitioner was correct or not; whether the petitioner could be allowed to continue on the strength of Ext.P3 sale deed and Ext.P4 agreement for sale. Government found that the transfer of share of school properties of Shri M.V.Sasikumar was made without prior permission of the department, while the other half share of the school and the property remained in the ownership of Late M.V.Narayanankutty, which was hit by Section 6 of the Kerala Education Act. 4. Petitioner challenges the order Ext.P8 on the ground that, being the owner of half the property comprising the school, and being in possession of the properties for over 10 years, she was not liable to be displaced and no permission was necessary when the management was also transferred along with the property. 5. Respondents have filed a counter affidavit stating that the school which was under the joint ownership of 2 persons cannot be transferred without the permission of the educational authorities and any such transaction would be hit by Section 6 of the Kerala Education Act. It is stated that the Educational Officers passed the order in tune with the provisions contained in the Kerala Education Act. W.P.(C) No.32188 of 2009 5 6. The additional 5[th] respondent has filed a counter affidavit, pointing out that O.S.No.65 of 2007 filed by the petitioner was already dismissed as per judgment and decree dated 22.11.2008. The 4[th] respondent claimed that he became the sole owner of the School, consequent to the death of Shri M.V.Narayanankutty on 13.9.2007, the 4[th] respondent-M.V. Sasikumar became the sole owner of the School, on the basis of a will executed by M.V.Narayanankutty. Thereafter, as per Ext.R5(B) order dated 28.01.2010, he was approved as Manager of the School. The 4[th] respondent executed a sale deed in favour of the additional 5[th] respondent, registered on 4.8.2011. 7. Learned counsel for the petitioner argued that permission is required only when there is a transfer of property of the School without the transfer of the management and in this case the petitioner herself was the manager when Ext.P3 sale deed was executed. Relying on the judgments of this Court in **Kunjulakshmi v. Krishnan Unnithan** [1992 (1) KLJ 415] and **Vijayakumari Pillai v. State of Kerala** [2001 (1) KLT S.N.25], the petitioner's contention is that the permission from the Educational Authorities was not necessary for transfer of the property and in this case she herself was the manager of W.P.(C) No.32188 of 2009 6 the school and there was no question of transfer of managership. 8. On the other hand the learned counsel for the additional 5[th] respondent relied on the Division Bench judgment of this Court in **Roopa v. State of Kerala** [2014 (1) KLT 483] where a division bench of this court, after considering a series of judgments on the point, held that it is necessary to get prior permission before any valid transfer is effected in respect of the properties of a school. Learned counsel for the additional 5[th] respondent relying on paragraph 18 of the said judgment argued that it is necessary to get the previous approval from the Educational Officers when there is a change of ownership in respect of the properties. 9. I have considered the contentions on either side, it cannot be disputed that the petitioner was having ownership of only half the rights over the school and its properties. The petitioner was a person whose appointment as Manager as per Ext.P1 order was approved as per Ext.P2. Ext P1 appointment was made by Shri M.V.Narayanankutty on a temporary measure on the ground that he was out of station. Even if it is assumed that the petitioner was looking after the affairs of the School till the year 2006, till such time she was replaced as per W.P.(C) No.32188 of 2009 7 Ext.P5 order, she did not get any ownership over the entire property. Section 6 of the Kerala Education Acts reads as follows: ## **Restriction on alienation of property of aided** **school** :-(1) Notwithstanding anything to the contrary contained in any law for the time being in force, no sale, mortgage, lease, pledge, charge or transfer of possession in respect of any property of an aided school shall be created or made except with the previous permission in writing of such officer not below the rank of a District Educational Officer, as may be authorized by the Government in this behalf. The officer shall grant such permission applied for unless the grant of such permission will, in his opinion adversely affect the working of the school. (2) Any person aggrieved by an order of the officer refusing or granting permission under sub-section (1) may in such manner and within such time as may be prescribed, appeal to the Government. (3) Any transaction made in contravention of subsection (1) or sub-section (2) shall be null and avoid. (4) If any educational agency or the manager of any school acts in contravention of sub-section (1) or of an order passed under sub-section (2) Government may withhold any grant to the school 10. From the above provision, it can be seen that any transfer involving the property of a School requires prior permission of the Educational Authorities and any such W.P.(C) No.32188 of 2009 8 transaction without such permission would be null and void.. Even otherwise the petitioner's appointment as Manager was made by Late M.V.Narayanankutty on a temporary measure since he was out of station. He himself replaced the petitioner and that replacement was approved by Ext P5. Therefore, the petitioner cannot insist that she should continue to be the Manager of the School, when the School was in the joint ownership of 2 persons and petitioner was assigned only half of its share by the 4[th] respondent. In the above circumstances, I do not find any infirmity in the impugned orders. Therefore, this writ petition fails and is dismissed. Sd/- **P.V.ASHA, JUDGE.** AS