P S Sasikumar v. State of Kerala and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` WEDNESDAY, THE 26[TH] DAY OF JULY 2023 / 4TH SRAVANA, 1945 ``` ## **`W.P.(C) NO.1396 OF 2023`** ## **`PETITIONER:`** ``` P S. SASIKUMAR, AGED 54 YEARS, S/O.SIVAN NAIR (MANAGER - DESIGNATE KARUNA U P SCHOOL, THENNILAPURAM), RESIDING AT F-O BUILTECH GREENS, KUNNATHURMEDU P.O., PALAKKAD, PIN – 678 013 ``` ``` BY ADV U.BALAGANGADHARAN ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT (ANNEX), THIRUVANANTHAPURAM, PIN – 695 001 2THE DIRECTOR OF GENERAL EDUCATION, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM, PIN – 695 001 3THE DEPUTY DIRECTOR OF EDUCATION,[D.D.E.] CIVIL STATION, ROBINSON ROAD, PALAKKAD–678 001 4THE ASSISTANT EDUCATIONAL OFFICER,[A.E.O] ALATHUR, PALAKKAD, PIN – 678 541 ``` 2 _W.P.(C) No.1396 of 2023_ ``` 5THE MANAGER, KARUNA UPPER PRIMARY SCHOOL, THENNILAPURAM, ALATHUR, PIN – 678 542 ``` ``` 6THE PRESIDENT, MAHADEVA EDUCATIONAL AND CHARITABLE SOCIETY, KARIKKODE P O, VAIKKOM, KOTTAYAM, PIN – 686 610 ``` ``` GOVERNMENT PLEADER, SRI V. VENUGOPAL ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 _W.P.(C) No.1396 of 2023_ ## JUDGMENT _(Dated: 26[th] July, 2023)_ The petitioner purchased Karuna U.P. School, Thennilapuram, from the 6[th] respondent as per document No.731/2020 of SRO Alathur on 05.03.2020. As per the said document, the management right was also purchased. On the date of registration of the document itself, the petitioner and the 5[th] respondent applied for a change of management involving a change of ownership of the school under Rule 51A of Chapter III of KER along with necessary documents. The 4[th] respondent/AEO rejected the application stating that the petitioner had not obtained the consent of the school staff. The rejection was challenged in W.P.(C)No.23759 of 2020 before this Court, and by judgment dated 08.01.2021, this Court held that the consent of the staff is not required to be obtained for the transfer of management and therefore, the issue was directed to be re-considered. In compliance with the directions of the judgment, Ext.P4 letter was issued by the 4[th] respondent to the 2[nd] 4 _W.P.(C) No.1396 of 2023_ respondent stating that a liability of Rs.1,46,390/- is fixed against the 5[th] respondent for having treated the period of suspension of two teachers as duty. The liability pertains to 2012. It is stated in Ext.P4 that the amount due is from the transferor manager, and the manager has not remitted the said amount till date. It is also stated that a letter dated 08.10.2020 has been issued to the transferred manager. 2. The 2[nd] respondent conducted a hearing on 17.03.2021. In the meanwhile, Ext.P4 letter was issued by the 4[th] respondent and informed the 5[th] respondent regarding the remittance of the amount of Rs.1,46,390/- to the Government. On 08.09.2021, in pursuance to the directions in Ext.P3 judgment, the application for transfer was rejected because prior sanction of the DPI was not obtained. The petitioner, therefore, filed W.P.(C)No.22174 of 2021, and based on the order passed by the Government on 13.10.2021, held that there is no necessity for prior permission of change of management, and this Court quashed the order impugned and directed the respondent/Director of General 5 _W.P.(C) No.1396 of 2023_ Education to pass fresh orders in the light of the order dated 13.10.2021, after hearing the parties physically or virtually. 3. The Government also issued Ext.P8 circular dated 24.11.2021, whereby the issue of change of management without prior sanction of the Director was taken into consideration and ordered that all transfers occurred before 24.11.2021 shall be regularised provided an undertaking is obtained from the manager in a stamped paper worth not less than Rs.200/-. Thereafter Ext.P10 proceedings are issued directing the petitioner to submit the application to the Government in terms of Ext.P8 circular. 4. The petitioner submits that he has submitted the application with all documents, and it has been transmitted to the Government through the AEO. However, by Ext.P12 letter dated 12.07.2022, the petitioner has been informed that unless and until the amount of Rs.1,46,390/- due to the Government is remitted, the transfer cannot be effected. The petitioner challenges Ext.P12 as highly illegal and arbitrary. 6 _W.P.(C) No.1396 of 2023_ 5. A counter affidavit is filed on behalf of the 3[rd] respondent. It is admitted that the petitioner has purchased the property and the management by registered deed. The proposal for approval for change of management involving a change of ownership with required documents was forwarded by the AEO to the Director of General Education. The 4[th] respondent pointed out that liability is outstanding on account of the transferor manager in connection with the regularisation of the suspension period of two teachers, and it was also intimated that the transferer manager nor the transferee manager has remitted the said amount and therefore the approval cannot be issued. It is stated that on 09.01.2014 as per letter No.C/882/2013, the 4[th] respondent submitted a proposal to the District Education Officer, Palakkad, to initiate the revenue recovery of the amount from the manager concerned. 6. The 2[nd] respondent, after hearing the parties, rejected the proposal for two reasons. (i) an existing liability of Rs.1,46,390/- is to be 7 _W.P.(C) No.1396 of 2023_ recovered before the transfer of management, and (ii) prior permission of the Director of General Education has not been obtained by the manager. Though the petitioner challenged the order of the Director of General Education before this Court, this Court has set aside the order and directed to pass fresh orders in the light of the circular dated 13.10.2021. As per Ext.P12, the Government has informed the petitioner that the change of management involving ownership can be considered only after the amount is remitted and the production of the challan. 7. Ext.P12, which is under challenge, directs the petitioner to remit an amount of Rs.1,46,390/- being a liability standing in the name of the manager and the liability is fixed for having treated the period of suspension of two teachers as duty in the year 2012. Even according to the counter affidavit, it is stated that on 09.01.2014, as per letter No.C/882/2013, the Assistant Education Officer, Alathur, submitted a proposal to the District Education Officer, Palakkad, to initiate Revenue Recovery by the said amount from the manager concerned. But till date, 8 _W.P.(C) No.1396 of 2023_ no proceedings are seen forthcoming against the transferer manager, and now the petitioner who has stepped into the shoes of the erstwhile manager is directed to recoup the amount which caused loss to the Government. _“Rule 5A of Chapter III KER states that the management of any aided school involving a change of ownership shall be effected except with the previous permission of the Director and 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 interest of the staff and the person to whom the management is transferred”._ 8. This Court, while disposing of W.P.(C)No.22174 of 2021, has taken note of the fact that the Government has passed an order on 13.10.2021, wherein it has been held that there is no necessity or prior permission for change of management. Moreover, as per Ext.P8 dated 24.11.2021, the Government has issued a circular in which it is specifically stated that all transfers effected before 24.11.2021 without obtaining permission from the Director if otherwise in order can be regularised provided an undertaking in stamp paper not less the value of Rs.200/- is produced. It is specifically stated that from 24.11.2021, any 9 _W.P.(C) No.1396 of 2023_ transfer effected without the permission of the Director shall not be accepted. Thus, the petitioner is entitled to the benefit of Ext.P8 circular, and therefore the contention raised by the respondent that prior permission is not obtained will not stand good. 9. As far as the liability of Rs.1,46,390/- is concerned, the liability arose in the year 2012, as the then manager had treated the period of suspension of two teachers as duty. It is also admitted that through the counter affidavit, a proposal was forwarded in 2014 for recovery of the amount by initiating revenue recovery proceedings from the then manager. The counsel for the petitioner relies on the decision of this Court in _Vijeesh C.V. v. State of Kerala and others (2014 (4) KHC_ _716)_ , wherein this court has held in paragraph 25 as follows: _25. It may be pertinent to further appreciate another plea of the learned Government Pleader that, in the face of the death of the Manager, who had actually committed the misconduct, if the present Manager were not to be made liable, the Government, which actually parted with public money for the fault of the said delinquent Manager, would be remedyless. In this regard, it can be stated that once any misconduct has been detected on the part of the delinquent_ 10 _W.P.(C) No.1396 of 2023_ _employee, he could have been subjected to disciplinary proceedings. Primarily before the misconduct is detected, or before any action can be taken thereof, if the said employee happens to get superannuated or leaves his office, that person, and that person alone, can be proceeded against subject to the statutory limitations imposed concerning the issue. Under such circumstances, that even the successor to the delinquent in the post can be made liable is totally unconscionable. By no stretch of imagination, can it be said that an incumbent Manager can be made liable for the misconduct of his predecessor on the premise that otherwise the Government will be remedyless._ The counsel also relied on the judgment of this Court in _Beevi Umma S._ ## _v. Assistant Educational Officer, Trivandrum (2016 (1) KHC 628),_ for the proposition that when a teacher is kept under suspension illegally by the manager and when Government compensates the teacher, loss caused can be recovered from the manager. ## Paragraphs 5 & 6 of the judgment reads as follows: _5. The learned Counsel for the petitioner takes me through R.7 of Chapter III and R.67 of Chapter XIVA to distinguish between the status of an educational agency and the Manager. Further reliance is placed on R.1 and R.3 of Chapter III and sub-section (2) of S.2 of the Kerala Education Act, 1958 to contend that the Manager and the educational agency, being two different individuals, they are two separate legal entities, having distinct status even as per the Act and Rules. One cannot be proceeded against for the default of the other, is the argument. It is also pointed out that R.7 of Chapter III and R.67 of Chapter XIVA specifically speaks of the proceedings_ 11 _W.P.(C) No.1396 of 2023_ _against the Manager; that too only in circumstances, when loss has been caused to the Government. The further contention is with respect to no notice having been issued against the petitioner. The essential contention is that the petitioner being an educational agency, could not have been mulcted with the liability of the Manager and even if liable it can only be with a proper notice and hearing._ _6. Admittedly, the petitioner is the educational agency, who as per the provisions of the KER authorized her husband as the Manager. R.3(4) of Chapter III specifically makes the educational agency responsible for the acts of the Manager. The statutory provision hence imports the law regarding the principal and an agent and no educational agency can absolve itself from the liability on the ground that the default committed or the loss occasioned was due to the conduct of the Manager. The distinct status as per the Act and Rule is subject to the specific provision of the Rules by which the authorisation is approved by the educational authority._ 10. The learned Government Pleader, on the other hand relied on a judgment of the Division Bench of this Court in W.A.No.1477 of 2015. The question that was considered in the said Writ Appeal was whether Rule 3 of Chapter III makes the management bound by the action of the manager. The Division Bench held that when a claim of recovery of loss is made consequent upon the irregular actions of the manager of an education agency, the recovery of such loss should be 12 _W.P.(C) No.1396 of 2023_ recovered from the manager under the provisions of the Revenue Recovery Act. On an analysis of the above judgment relied on by the counsel for the petitioner as well as the Government Pleader, it can see that the liability made by a manager can be recovered only from the manager concerned, and if the manager fails to remit the loss, the same can be recovered under the provisions of the Revenue Recovery Act for acts of the earlier manager, the new incumbent who is sought to come on record as manager cannot be made liable for the loss sustained. It can be seen that the liability occurred in 2012 and it is due to the act of the transferor manager, therefore the petitioner who is now stepping into the shoes of the manager cannot be multed with the liability to pay the amount occasioned due to the act of the transferor manager. In the result, the writ petition is allowed and Ext.P12 is set aside and the 1[st] respondent is directed to consider Ext.P2 application without insisting on payment of Rs.1,46,390/- due to the Government from the 13 _W.P.(C) No.1396 of 2023_ transfer of management. It is made clear that the Government would be at liberty to proceed against the then-manager who had occasioned the loss to the Government in 2012 under the Revenue Recovery Act and Rules thereunder. The writ petition is disposed of. _Sd/-_ BASANT BALAJI, JUDGE ss 14 _W.P.(C) No.1396 of 2023_ ## **`APPENDIX OF WP(C) 1396/2023`** ``` PETITIONER EXHIBITS: Exhibit P 1A TRUE COPY OF THE DOCUMENT DATED 5.3.2020 BEARING NO. 731/2020 OF S R O ALATHUR Exhibit P 2A TRUE COPY OF THE APPLICATION FOR CHANGE OF MANAGEMENT INVOLVING CHANGE OF OWNERSHIP DATED 5.3.2020 ``` ``` Exhibit P 3A TRUE COPY OF THE JUDGMENT DATED 8.1.2021 IN W.P.[C] NO. 23759/2020 Exhibit P 4A TRUE COPY OF THE LETTER OF THE 4TH RESPONDENT A.E.O. TO 2ND RESPONDENT Exhibit P 5A TRUE COPY OF THE LETTER DATED 3.4.2021 ISSUED BY THE 3RD RESPONDENT TO 5TH RESPONDENT ``` ``` Exhibit P 6A TRUE COPY OF THE ORDER NO . G1/2524/2021/D.G.E./K.DIS. ISSUED BY THE 2ND RESPONDENT DATED 6.9.2021 Exhibit P 7A TRUE COPY OF THE JUDGMENT DATED 20.10. 2021 IN W.P.[C] 22174/2021 Exhibit P 8A TRUE COPY OF THE CIRCULAR DATED 24.11.2021 Exhibit P 9THE PETITIONER HAS SUBMITTED UNDERTAKING AS DEMANDED IN EXT.P.8 CIRCULAR ON 4.6.2022, Exhibit P 10 10A TRUE COPY OF ORDER NO. G1/13104/2021/D.G.E. DATED 25.1. 2022 ISSUED BY THE SECOND RESPONDENT Exhibit P 11A TRUE COPY OF LETTER ISSUED BY THE PRINCIPAL SECRETARY TO GOVERNMENT TO THE 5TH RESPONDENT DATED 25.5.2022 Exhibit 12A TRUE COPY OF LETTER ISSUED BY THE PRINCIPAL SECRETARY TO THE 5TH RESPONDENT DATED 12.7.2022 RESPONDENT EXHIBITS EXHIBIT R3(a)TRUE COPY OF THE LETTER B6/27030/18 DATED 03/04/2021 ```