P. Muralidharan v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 03RD DAY OF DECEMBER 2019 / 12TH AGRAHAYANA, 1941** ## **WP(C).No.26752 OF 2019(T)** ## **PETITIONER:** **P.MURALIDHARAN AGED 43 YEARS** **S/O.LATE V.NARAYANAN NAIR, RESIDING AT MURALI NIVAS, KADAMBUR P.O., EDAKKADU, KANNUR DISTRICT-670663.** **BY ADVS.** **SRI.GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS, VAZHUTHACAUD-POOJAPPURA ROAD,JAGATHY P.O., THIRUVANANTHAPURAM-695014.** - **3 THE DISTRICT EDUCATIONAL OFFICER, PATHANAMTHITTA-689645.** **R1-R3 BY SRI.P.M.MANOJ,SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.26752 OF 2019(T) 2 ## **J U D G M E N T** This writ petition is filed by the petitioner seeking to quash Ext.P12 order passed by the Additional Director of General Education dated 20.8.2019, whereby transfer of management sought for by the petitioner was declined on the ground that prior sanction was not secured for transfer of the management. Brief material facts for the disposal of the writ petition are as follows; 2. According to the petitioner, petitioner reached an agreement with the Manager of the Kodumon High School for transferring the management, landed property and building in his favour. The erstwhile manager therefore submitted Ext.P2 application for obtaining prior permission from the 2[nd] respondent. It is also submitted that, all necessary documents which are necessary for the transfer of management involving change in ownership are also produced. However, there was delay in issuing orders on Ext.P2 application and the prior Manager had to leave for WP(C).No.26752 OF 2019(T) 3 Dubai to join for employment and thereupon, she executed Ext.P6 sale deed in favour of the petitioner. Thereafter Ext.P7 proceedings were submitted before the 2[nd] respondent ratifying the transfer. Case of the petitioner is that, the Senior Law Officer and the Additional Director of Public Instructions have opined and recommended that the transfer can be approved. In the meantime the Government gave an oral direction to keep the file pending. It was thereupon that the file is kept pending without taking into account any action. 3. Anyhow later the Additional Director of Public Instruction recommended not to approve the transfer and 2[nd] respondent i.e., the Director of General Education has decided to reject the application. It is also submitted that, rejection of the application is against the mandate of Rule 5A Chapter III KER. These are the basic background facts projected by the petitioner for securing the relief as specified above. 4. A detailed statement is filed by the 3[rd] respondent i.e., the District Educational Officer, WP(C).No.26752 OF 2019(T) 4 Pathanamthitta refuting the claims and demands raised by the petitioner. An application seeking prior permission for change of manager involving change of ownership of the school is submitted before the 3[rd] respondent and according to the 3[rd] respondent, it was received in order to forward the same to the Director General of Education. It is also submitted that, petitioner and Smt.Shobana Radhakrishnan reached an agreement to transfer the ownership of the school in favour of the petitioner. An application seeking prior permission for change of management to the petitioner has been submitted to the 3[rd] respondent on 27.7.2018. But the certificate of Panchayat President and consent letter of all staff of the school were not enclosed along with the application. Hence Manager was directed to submit the above documents as per a communication dated 9.8.2018. The required documents were submitted by the Manager only on 10.1.2019. However, in the letter the Manager stated that ownership of the school including land and building is transferred to the petitioner as per sale deed dated 21.12.2018 before getting prior WP(C).No.26752 OF 2019(T) 5 permission, for the reason that, Manager had to travel abroad. The application received on 10.1.2019 from the Manager was sent to the Director General of Education on 11.1.2019 without any delay. It is also submitted that, the application for transfer was incomplete. It was due to that, the delay had occurred. Therefore, according to the 3[rd] respondent, the stand adopted by the Director General of Education is in accordance with law. 5. I have heard learned senior counsel for petitioner, learned Senior Government Pleader and perused the pleadings and documents on record. 6. Respective counsel have addressed arguments based on the pleadings put forth. The issue is guided by Rule 5A of Chapter III KER which read thus: _**5A:** Change of management involving change of ownership:(1) Notwithstanding anything contained in these rules, no change of Management of any aided school involving change of ownership shall be effected except with the previous permission of the Director. The Director may grant such permission unless the grant of such permission will, in his opinion, adversely affect the working of the institution and the interests of the staff and the person to whom the Management is transferred._ WP(C).No.26752 OF 2019(T) 6 _(2) Any person aggrieved by an order under subrule(1) may, within 30 days from the date of the receipt of the order, prefer an appeal to the Government._ _(3) In the case of change of management of a school involving change of ownership the new Manager of a corporate or an individual Educational Agency, shall be bound to absorb any member who is a claimant under rule 51A of Chapter XIVA or is eligible for protection belonging to teaching and non-teaching staff of any school of the transferor manager, against the vacancies that may arise in the school.”_ 7. It is true as per Rule 5A(i) no change of management of any aided school involving change of ownership shall be effected except with the previous permission of the Director. It is also specified thereunder that, the Director may grant such permission unless grant of such permission will, in his opinion, adversely affect the working of the institution and the interests of the staff and the person to whom the management is transferred. Therefore, according to the learned senior counsel appearing for petitioner, there is no whisper in the impugned order that any manner of prejudice is caused to the working of the institution and the interests WP(C).No.26752 OF 2019(T) 7 of the staff and the person to whom the management is transferred. It is also clear from Ext.P12 impugned order that, the sole reason assigned for dismissing the application for approval of the transfer is, no prior permission was sought for by the Manager for transfer of the school. Learned senior counsel for petitioner has also invited my attention to Ext.P9 proceedings in respect of the application submitted by the Manager, Smt.Shobana Radhakrishnan and invited my attention to Note No.6 apparently put-up by the Senior Law Officer, which states that “on scrutiny of the records it is seen that the file is in order. All the required certificates and deeds are found attached with the proposal. The check list is therefore met in full satisfaction. As per the judgment of the Hon'ble High Court, which was later affirmed by the Hon'ble Supreme Court, prior permission of DPI is required for transferring a running school. However, prior permission of the DPI is required for change of management arising out of such change of ownership. Going by the judgment, a change of managership would occur only with the prior WP(C).No.26752 OF 2019(T) 8 permission of the Director. Even if the parties execute document changing the ownership of the school, no change of managership would flow from it. The same requires prior permission of the Director, where the question examined is whether the change of management, if allowed, would adversely affect the institution. That is the exercise done at the level of the DPI when proposal for change of management is submitted which involves change of ownership. Government have also accepted the above equation and directed to clear the backlogs of files relating to change of management.” Thereafter as per Note No.9 dated 13.2.2019, it is stated that since change of management involves change of ownership, prior permission of the Director is required as per Rule 5A Chapter III. 8. The sum and substance of the contention put forth by the learned counsel for petitioner is that, the prime requirement that is to be satisfied by the Authority is whether the transfer of the management would in any manner affect the working of the institution and the interest of the staff and the WP(C).No.26752 OF 2019(T) 9 person to whom the management is transferred and there is no case for the respondents that any such adverse consequences is remaining in the case on hand. 9. On the other hand learned Senior Government Pleader submitted that what is contemplated under Rule 5A Chapter III KER is a prior permission from the Director and the Director is entitled to consider the application in order to ascertain whether there would be any adverse circumstance to the running of the institution, interest of the staff etc. etc. It is also submitted that, it contemplates an adjudication of the application submitted by the Manager and the transfer can be effected only on granting permission to transfer the management. Learned Senior Government Pleader has also invited my attention to a Division Bench judgment of this Court in **Roopa v. State of Kerala** [2014(1)KLT 483] wherein, it was held that, the requirement under Rule 5A Chapter III KER is the mandatory requirement before transferring the management. However, from the facts and circumstances appreciated by the Division Bench WP(C).No.26752 OF 2019(T) 10 in **Roopa** _(supra),_ it is in respect of approval of appointment made by transferee Manager without securing prior permission and without transferring the management by executing appropriate documents. It is also clear that, the appointment was done by the transferee Manager while the agreement was pending by and between the parties for transfer of the management. Learned Senior Government Pleader has also submitted that, the principle of law that was laid down by this court in **Roopa** ( _supra_ )is under similar circumstance and therefore, the petitioner has not made out any case of arbitrariness or illegality justifying interference under Article 226 of the Constitution of India. 10. I have evaluated the rival submissions made across the Bar. In my considered view, here is a case where the management was transferred by executing Ext.P6 sale deed by the previous Manager Smt.Shobana Radhakrishnan in favour of the petitioner. It is also an admitted fact that, an application was filed by Shobana Radhakrishnan seeking transfer of the management and from the Note put-up by the Senior Law WP(C).No.26752 OF 2019(T) 11 Officer it is evident that, the application was in order and all the attendant documents are later produced by the petitioner in order to make the application defect free. 11. I find force in the contention advanced by learned Senior Counsel for petitioner that, the intention behind prior permission for transfer from the Director is for ascertaining as to whether there would be any adverse consequence for the working of the institution and the interest of the staff and the person to whom the management is transferred. In the impugned order, the sole reason assigned is that prior permission of the Director was not secured. There is no case for the respondents that any adverse consequences that are recited to in Rule 5A Chapter III KER is remaining so as to decline the prior permission to the petitioner. 12. To put it otherwise the intention behind securing prior permission is basically to ensure that the transfer of the management would not affect the running of the institution in any manner and it would not create any adverse circumstances to the interest WP(C).No.26752 OF 2019(T) 12 of the staff and the transferee. 13. In that view of the matter, I am of the considered opinion that, Ext.P12 order passed by the Director of General Education cannot be sustained under law and accordingly it is quashed. Therefore, there will be a direction to the 2[nd] respondent to take appropriate action in respect of the transfer of management effected by and between Smt.Shobana Radhakrishnan and the petitioner as per Ext.P6 sale deed, in accordance with law, at the earliest possible time and at any rate within two months from the date of receipt of a copy of this judgment, if required after providing notice of hearing to the respective parties. Writ petition is allowed accordingly. **Sd/-** **SHAJI P.CHALY** Smv 4.12.2019 **JUDGE** WP(C).No.26752 OF 2019(T) 13 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE ORDER NO.ET3/29506/14/DPI/KDIS DATED 23.10.2014 ISSUED BY THE DIRECTOR OF PUBLIC INSTRUCTIONS.** - **EXHIBIT P2 TRUE COPY OF THE LETTER ADDRESSED TO THE 3RD RESPONDENT ON JULY 2018.** - **EXHIBIT P3 TRUE COPY OF THE APPLICATION SUBMITTED FOR THE TRANSFER OF MANAGEMENT OF THE SCHOOL.** - **EXHIBIT P4 TRUE COPY OF THE COMMUNICATION NO.B6/6456/2018 ISSUED BY THE 3RD RESPONDENT DATED 09.08.2018.** - **EXHIBIT P5 TRUE COPY OF THE COMMUNICATION NO.B6/6456/2018 DATED 11.01.2019 ISSUED BY THE D.E.O. PATHANAMTHITTA.** - **EXHIBIT P6 TRUE COPY OF THE SALE DEED NO.3022/1/2018 DATED 21.12.2018 REGISTERED AT SRO ADOOR.** - **EXHIBIT P7 TRUE COPY OF THE LETTER DATED 24.12.2018 ADDRESSED TO THE 2ND RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE COVERING LETTER DATED 25.01.2019 WITHOUT ENCLOSURES, ISSUED BY THE MANAGER.** - **EXHIBIT P9 TRUE COPY OF THE RELEVANT PORTION OF THE FILE NOTES IN FILE NO.DPI/522/2019-ET3 FROM 31.01.2019 TO 13.02.2019.** - **EXHIBIT P10 TRUE COPY OF THE RELEVANT PORTION OF THE FILE NOTES IN FILE NO.DPI/522/2019-ET3 FROM 19.02.2019 TO 02.06.2019.** - **EXHIBIT P11 TRUE COPY OF THE RELEVANT PORTION OF THE FILE NOTES IN FILE NO.DPI/522/2019-ET3 FROM 29.06.2019 TO 02.07.2019.** - **EXHIBIT P12 TRUE COPY OF THE ORDER NO.ET3/552/2019/D.G.E. DATED 20.08.2019 PASSED BY THE ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTIONS.**