Parakkal Madhavi v. Government of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY ,THE 21ST DAY OF FEBRUARY 2019 / 2ND PHALGUNA, 1940** ## **WP(C).No.21223 of 2014** ## **PETITIONER:** **PARAKKAL MADHAVI PARAKKAL HOUSE, NEAR KOTTIYODI, KANNU DISTRICT.** **BY ADV. SRI.A.C.VENUGOPAL** ## **RESPONDENTS:** - **1 THE GOVERNMENT OF KERALA REPRESENTED BY ITS SECRETARY TO THE GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM-695001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM-695001.** - **3 THE DEPUTY DIRECTOR OF EDUCATION KANNU-670001.** - **4 THE ASSISTANT EDUCATIONAL OFFICER KUTHUPARAMBA, KANNUR DISTRICT, 670010.** - **5 P.GOVINDAN S/O.LATE KUNHIKRISHNAN, "PRATHIBA", P.O.PATAHAYAKUNNU, KANNUR DIST., 670015. [DELETED]** **[THE NAME OF THE 5TH RESPONDENT IS DELETED FROM THE LIST OF RESPONDENTS AS PER ORDER DATED 30.01.2015 IN IA 1135/15.** - **6 P.PRASANNA S/O.LATE KUMARAN, PARAKKAL HOUSE, P.O.PATHAYAKUNNU, KANNUR DIST., 670015.** - **7 P.SHEEBA D/O.KUMARAN, DO. DO.** - **8 P.NISHAD S/O.KUMARAN, DO. DO.** **WP(C).No.21223 of 2014** 2 - **9 P.RESHMA D/O.KUMARAN, DO. DO.** - **10 P.PUSHPAVALLY D/O.T.K.LAKSHMI, PARAKKAL HOUSE, PATHAYAKKUNU, THALASSERY, KANNUR DIST., 670101.** - **11 P.RATHI DO. DO.** - **12 P.MALATHI DO. DO.** - **13 P.SAVITHA DO. DO.** - **14 P.BABY SHILAJA DO. DO.** - **15 P.RAMESAN** - **DO. DO.** **GOVT.PLEADER.SRI.S.DILEEP.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.21223 of 2014** 3 ## **JUDGMENT** Petitioner's mother, Cheriyamma was the owner and Headmistress of Kottiyodi L.P.School, Kuthuparamba. During the life time of petitioner's mother an agreement was executed between Cheriyamma and her husband's brothers Kunhikrishnan and Ramar, relating to the Management of the school. The executants of the agreement passed away. After the death of the mother of the petitioner the ownership of the school devolved on the petitioner as per a partition deed in the year 1984, contends the petitioner. 2. The petitioner applied before the Educational authorities to approve her as Manager of the School. Initially the DPI allowed the petitioner's petition and transferred Management of the school in the name of the petitioner, contends the petitioner. But later, wife of one of the brothers of Cheriyamma's husband, filed appeal before the Government and thereupon the Government set aside the order of the DPI and remitted the matter back to DPI for re-examination of the issue of management. Thereupon, the DPI directed the parties **WP(C).No.21223 of 2014** 4 to prepare a scheme for administration of the school and submit for approval. 3. The petitioner preferred revision petition against the decision of the DPI, which was dismissed by the Government. The petitioner therefore filed WP(C)No.28243/2003 challenging the decision of the DPI and the Government. The said writ petition was disposed of by this Court holding that, ownership of the property cannot be decided by this Court and it is one to be decided by the competent civil court in a properly instituted suit. This Court held that it is, imperative that there should be some one in the post of Manager under the control of the Educational authorities, to run the school. The question whether the Educational authorities have to take up that responsibility temporarily would arise only in the case of an absolute impossibility to find out some one from among claimants for the management of the school. This Court therefore directed that the petitioner shall be permitted to continue to function as Manager of the school till the end of the academic year and in the meanwhile the parties shall prepare and submit a scheme **WP(C).No.21223 of 2014** 5 for administration for approval of the competent educational authority. In case of failure, the Educational authorities were permitted to proceed further in accordance with law. 4. Thereafter, the petitioner contacted other members of the family in order to prepare a scheme for administration of the school. Petitioner contends that, her relatives were non cooperative. Thereafter, the petitioner submitted a scheme of her own for administration of the school. However, the Educational authorities have not approved the scheme. The Educational authorities rejected the scheme proposed by the petitioner. The Assistant Educational Officer, as per Ext.P3, observed that the present position is that the school is without a Manager. Since whose right it is to conduct the school is in legal dispute and since the parties concerned have failed to submit any valid schemes for administration in time as ordered by the High Court, the AEO suggested that the school can be taken over by Government in accordance with Section 14 of he Kerala Education Act and Rule 1, (Chapter 20) of the KER, until the dispute gets settled in a Civil Court. Hence, the petitioner has **WP(C).No.21223 of 2014** 6 filed this writ petition. 5. The 4[th] respondent entered appearance and contested the writ petition filing counter affidavit. In the counter affidavit, the 4[th] respondent has stated that the scheme submitted by the petitioner was defective and was not prepared as per the provisions contained under Rule 2 Chapter III of KER and not in accordance with the judgment of this Court. The scheme was prepared without any approval of party respondents claiming right over the management of the school. Therefore, the draft scheme submitted by the petitioner was rejected on 15.11.2012 for rectification of material defects and for re-submission. The petitioner re-submitted the scheme which was forwarded to eight co-owners of the property for their consent. But out of eight persons only six co-owners have jointly given a statement on 26.06.2013 to the effect that they do not approve the scheme submitted by the petitioner. In the circumstances, the authorities have recommended to take over the management of the school invoking Section 14 of the Kerala Education Act. According to the 4[th ] respondent, the petitioner **WP(C).No.21223 of 2014** 7 has title over the property but it is only to an extent of 1/3[rd] . This Court directed to appoint the petitioner as Manager only till the end of the then academic year, that is up to March 2013. According to the 4[th ] respondent since this Court permitted the petitioner to continue as manager only up to 31.03.2013, the respondents may not be competent to decide any extension to be given to the petitioner unless directed by Higher Authorities or by this Court. 6. The third respondent-DEO filed an affidavit dated 15.06.2015. In the said affidavit the third respondent stated that, the scheme prepared and submitted by the petitioner was returned by the AEO and the said scheme was not approved. Under the circumstances of the case, the AEO Koothuparamba, suggested to take over the school by Government as per Section 14 of the KER, contended the third respondent. 7. I have considered the pleadings in the case and arguments raised by Adv.Venugopal.A.C., representing the petitioner and the learned Government Pleader representing respondents 1 to 4. **WP(C).No.21223 of 2014** 8 8. The facts are not in dispute. The petitioner's mother Cheriyamma was owner and Headmistress of the school during her life time. An agreement was executed during the life time of said Cheriyamma between herself and her husband's brothers. There is dispute between the family members as to the ownership and management of the school. But being a school currently running classes, the Government has a duty to see that the school is managed by a competent Manager. The management of the school cannot wait till the resolution of the dispute between the family members of the petitioner. 9. This Court has considered the necessity of appointment of a Manager under similar circumstances. In the judgment in **Dr Philippose Mar Theophilus v. State of Kerala & Ors** reported in (1986 KLJ 1069) this Court held that, it is important that there should be some one to function as Manager under the control of the Educational authorities; and that some one should be chosen by a person who is _prima facie_ at least, the owner of of the institution. The vacuum in the management of the school will not be in the interest of the students studying **WP(C).No.21223 of 2014** 9 therein. Therefore, it is highly necessary that some one is appointed as Manager and made responsible for proper functioning of the school. 10. Learned counsel for the petitioner submits that, taking over of the school by the management in such circumstances is uncalled for and unwarranted. In the judgment in **Abdurahiman v. State** reported in (1978 KLT 275) a Division Bench of this Court held that, only when the manager has neglected to perform any of the duties imposed by the Act or the KER and in the public interest it has become necessary to take such action that the State can invoke Section 14 of the Act and take over the management of an Aided school. This Court held that public interest alone is not enough. Neglect on the part of the Manager to perform any of the duties imposed by the Act or the KER is a 'must'. In the case on hand, the Government has no case that the petitioner while functioning as Manager of the school has neglected to perform the duties of the Manager. The Government proposed to take over the school invoking Section 14 of KER only for the reason that there is a dispute over the **WP(C).No.21223 of 2014** 10 ownership and management of school between the family members of the petitioner. This stand cannot be sustained in view of the judgment in **Abdurahiman v. State** (supra) 11. As the dispute between the family members of the petitioner relating to the ownership and Management of the school still remains unresolved, it is highly necessary that some interim arrangements are made for the proper management of the school. It appears that the school has been functioning without a duly appointed Manager for the last 5 years. 12. In the facts and circumstances of the case this writ petition is disposed of with the following directions:- _(1) The respondents are directed to appoint the petitioner as 'Temporary Manager' of the school for the time being, till the family resolves its disputes through civil court or till the family comes up with a scheme of administration._ _(2) The Educational authorities will be at liberty to remove the petitioner as Manager if at a future date it is found that petitioner is not managing the school in the best interest of the school and the students._ _(3) The respondent will also be at liberty to invoke Section 14 of the KER if the first respondent finds that there is gross violation on the part of the manager to perform her duties._ _(4) The respondents shall pass appropriate orders_ **WP(C).No.21223 of 2014** 11 _appointing the petitioner as Temporary Manager, within a period of 2 months from the date of receipt of a copy of this judgment._ With the above directions, this writ petition stands disposed of. ## **Sd/-** **N.NAGARESH** dlk/21.02.09 **JUDGE** **WP(C).No.21223 of 2014** 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE JUDGMENT OF HON'BLE HIGH COURT DATED 20.7.2012 IN W.P.(C) NO.28243 OF 2003.** **EXHIBIT P2 THE TRUE COPY OF COUNTER WITHOUT ANNEXURES DATED 31.1.2013 IN CONTEMPT CASE NO.1995 OF 2012. EXHIBIT P3 THE TRUE COPY OF LETTER DATED 3.7.2013 BY AEO, KUTHUPARAMBA TO THE DEPUTY DIRECTOR OF EDUCATION, KANNUR. EXHIBIT P4 THE TRUE COPY OF THE JUDGMENT OF HON'BLE HIGH COURT DATED 18.11.2013 IN CONTEMPT CASE NO.1995 OF 2012. EXHIBIT P5 TRUE COPY OF THE LETTER DATED 28.03.2016 OF THE PETITIONER TO THE PUBLIC INFORMATION OFFICER, ASST. EDUCATIONAL OFFICE, KUTHUPARAMBA EXHIBIT P6 TRUE COPY OF LETTER DATED 20.04.2016 OF THE STATE PUBLIC INFORMATION OFFICER, ASST. EDUCATIONAL OFFICER, KUTHUPARAMBA TO THE PETITIONER.**