Ponneri Abdurahiman, Manager, Dr.K.B.Menon Higher Secondary School, Thrithala, Palakkad District v State of Kerala represented by its Secretary, Department of General Education, Government Secretariat, Thiruvananthapuram; Director of Public Instructions, Thiruvananthapuram; District Educational Officer, Ottapalam; K. V. Syed Mohammed

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **MONDAY, THE 21ST DAY OF JANUARY 2013/1ST MAGHA 1934** ## **WP(C).No. 22910 of 2012 (K)** **---------------------------** ## **PETITIONER :** **--------------------** **PONNERI ABDURAHIMAN MANAGER, DR.K.B.MENON, HIGHER SECONDARY SCHOOL TRITHALA, PALAKKAD DISTRICT.** **BY SENIOR ADVOCATE SRI.P.K.SURESH KUMAR BY ADVS.SRI.SANTHEEP ANKARATH SRI.SUMODH MADHAVAN NAIR** ## **RESPONDENT(S) :** **----------------------------** **1. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY DEPARTMENT OF GENERAL EDUCATION GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM - 695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURM - 695 001.** **3. THE DISTRICT EDUCATIONAL OFFICER, OTTAPALAM - 679 101.** **4. K.V.SYED MOHAMMED, KALLIVALAPPIL, THRITHALA - 679 534,** **PALAKKAD DISTRICT.** **R1 TO R3 BY GOVT. PLEADER SMT. ROSE MICHAEL R4 BY ADVS. SRI.V.A.MUHAMMED** **SRI.M.SAJJAD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** ## **WP(C).No. 22910 of 2012 (K)** ## **APPENDIX** ## **PETITIONERS' EXHIBITS :** - **EXHIBIT P1. TRUE COPY OF THE PETITION FILED BY THE 4TH RESPONDENT DATED 27.05.2008 BEFORE THE DISTRICT EDUCATIONAL OFFICER.** - **EXHIBIT P2. TRUE COPY OF THE APEAL DATED 06.08.2008 FILED BY THE 4TH RESPONDENT BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P3. TRUE COPY OF THE PETITION DATED 24.04.2012 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P4. TRUE COPY OF THE OBJECTION TO EXT.P2 SUBMITTED BY THE PETITIONER DATED 15.05.2012.** - **EXHIBIT P5. TRUE COPY OF ORDER NO.D.DIS/EMI/59130/2008/DPI DATED 13.09.2012 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P6. TRUE COPY OF THE NOTICE DATED 28.09.2012 ISSUED BY THE THIRD RESPONDENT TO THE PETITIONER.** - **EXHIBIT P7. COPY OF MINUTES OF MEETING DATED 6.4.2007 OF THRITHALA HIGH SCHOOL MANAGEMENT COMMITTEE.** - **EXHIBIT P8. COPY OF MINUTES OF MEETING DATED 29.9.2007 OF THRITHALA HIGH SCHOOL MANAGEMENT COMMITTEE.** - **EXHIBIT P9. COPY OF MINUTES OF MEETING DATED 3.11.2007 OF THRITHALA HIGH SCHOOL MANAGEMENT COMMITTEE.** - **EXHIBIT P10. COPY OF MINUTES OF GENERAL BODY MEETING DATED 31.12.2007 OF THRITHALA EDUCATIONAL SOCIETY.** - **EXHIBIT P11. COPY OF COMMUNICATION DATED 28.5.2009 ISSUED BY THE DISTRICT REGISTRAR.** - **EXHIBIT P12. COPY OF MINUTES OF ANNUAL GENERAL BODY MEETING DATED 11.1.2009 OF THRITHALA EDUCATIONAL SOCIETY.** - **EXHIBIT P13. COPY OF MINUTES OF ANNUAL GENERAL BODY MEETING DATED 30.3.2010 OF THRITHALA EDUCATIONAL SOCIETY.** **RESPONDENTS' EXHIBITS :** **EXHIBIT R4(a) COPY OF THE APPROVED RULES AND REGULATIONS OF THE SOCIETY. EXHIBIT R4(b) COPY OF THE REPRESENTATION DATED 30.4.2008.** **EXHIBIT R4(c) COPY OF THE ORDER NO. B2/8195/07/K.DIS DATED 28.5.2008.** **(Contd...)** **WP(C).No. 22910 of 2012 (K) -2-** **EXHIBIT R4(d) COPY OF THE LETTER OF THE 4TH RESPONDENT DATED 7.5.2008.** **EXHIBIT R4(e) COPY OF THE MINUTES OF THE MEETING OF THE MANAGEMENT COMMITTEE DATED 6.4.2007.** **EXHIBIT R4(f) COPY OF THE JOINT OBJECTION SUBMITTED BY THE DEPONENT AND SRI.M.ABDU BEFORE THE DISTRICT EDUCATIONAL OFFICER DATED 16.5.2008. EXHIBIT R4(g) COPY OF THE MINUTES OF THE ALLEGED MEETING HELD ON 31.12.2007. EXHIBIT R4(h) COPY OF THE MINUTES OF THE ALLEGED MEETING HELD ON 29.9.2007. EXHIBIT R4(i) COPY OF THE LETTER NO. EM(1)/81741/11/DPI DATED 2.12.2011.** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## **A.M. SHAFFIQUE, J.** ----------------------------------------W.P.(c) No.22910 of 2012 --------------------------------------------Dated this the 21[st] day of January, 2013 ## J U D G M E N T This writ petition is filed challenging Exts.P5 and P6 orders passed by the Director of Public Instruction(DPI) and the consequential order passed by the District Educational Officer(DEO). 2. The petitioner is the Manager of a Corporate Educational Agency established as a society in the year 1953. The petitioner was appointed as the Manager by virtue of a decision taken by the General Body of the Society. The DEO approved the appointment. The 4[th] respondent filed a revision before the DPI. It was contended that the decision taken in a meeting held by the Management on 29.9.2007 inducting four additional members to the committee was not in order and that no such meeting was held or no such decision was taken by the committee. It is stated that 2/3[rd] majority of the General Body alone is the competent body to grant new membership as per clause 2 of the bye-law. Therefore, according to the fourth respondent, the said induction of four members had no legal _W.P.(c) No.22910 of 2011_ 2 sanctity. It was contended that on 3.11.2007, there was no requirement to take a decision to nominate the petitioner as the Manager of the Educational Society and as per the byelaw, it is for the managing committee to nominate the manager. The fourth respondent also had a case that President is the person who is competent to issue notice for the meeting and since he did not issue any notice to convene the meeting the decisions are ultra vires the byelaw. DPI accepted the said contention and arrived at a conclusion that it will be difficult to approve the appointment of the petitioner as manager of the society, and the approval by the DEO was not in order. Further the DPI has directed the DEO to take over management of the school. Ext.P6 is the order of the DEO, by which he had taken charge as Manager of the school with effect from 28.9.2012. 3. The facts involved in the case disclose that the petitioner was appointed as Manager initially on 11.11.2006, which was approved by the DEO on 29.06.2006, as per Ext.R4(c). Subsequently in a meeting held on 29.09.2007, the board decided to induct four persons. The 4[th] respondent _W.P.(c) No.22910 of 2011_ 3 did not attend the said meeting. Only three persons attended and Ext.P8 is the said decision. Another Board Meeting was held on 03.10.2007 and a decision was taken to convene a General Body in which the 4[th] respondent participated and Ext.P9 is the decision. The 4[th] respondent did not challenge, the decisions taken by the board on 29.09.2007 or 03.10.2007. The General Body was convened on 31.12.2007 and it was decided that the petitioner shall continue as the manager and Ext.P10 is the said decision. 4. It seems that the 4[th] respondent has filed a statement before the DEO as Ext.R4(d) claiming that he was the President and therefore, he alone should continue as the Manager. Another complaint is filed as Ext.P1 to the DPI on 25.07.2008. In respect of the appointment of the petitioner as manager, the DEO approved the same as per Ext.R4(c) dated on 28.5.2008. The fourth respondent filed an appeal before the DPI which resulted in Ext.P5 order. 5. The 2[nd] respondent has filed a counter affidavit, supporting the stand taken by the department, in terms of Exts.P5 and P6. It is contended that the petitioner has an _W.P.(c) No.22910 of 2011_ 4 efficacious alternate remedy and therefore, writ petition is not maintainable. Still further, it is contended that on verification of the documents produced by the petitioner, it was seen that the general body meeting was convened on 31.12.2007 and 7 out of 9 members of the managing committee attended. The DEO approved the appointment of the petitioner as Manager, only on account of the said facts. However in the appeal, a contention was raised that no meeting was held on 29.09.2007 as alleged and therefore, DPI was justified in coming to the conclusion that the General Body held on 31.12.2007, had no power to nominate the petitioner as Manager of the educational society. It is also found that on 29.09.2007 no decision could have been taken to convene the general body, as per the minutes produced. Hence the impugned order is passed. 6. The 4[th] respondent has also filed a counter affidavit, supporting the view taken by DPI and reiterating the contention that no meeting was held. It is further contended that the decision in the meeting alleged to have been held was not implemented. According to him, the signature of _W.P.(c) No.22910 of 2011_ 5 Shri.Abu, in the minutes of the meeting seems to have been forged. It is therefore, the case of the 4[th] respondent that the documents produced before the DPI had been false or fabricated, to suit the requirement of the petitioner. Therefore, the decisions taken are invalid. Further it is contended that the managing committee alone has the right to take a decision for appointing the manager. 7. Heard the learned senior counsel Shri.P.K. Suresh kumar appearing for the petitioner, Shri. Rajasekharan Nair learned counsel appearing for the 4[th] respondent and the learned Government Pleader. 8. The learned senior counsel for petitioner relied upon the division bench decision of this court in **Iysha Narayanan V. State of Kerala (1985(1) ILR (Kerala) 348)** , to contend that any disputes about the ownership and the right to manage the education institution is to be decided by the Civil Court and not by the statutory authorities under KER. 9. The judgment of a learned single judge in **(Mar Aprem Metropolitan v. D.E.O and other in (1975** _W.P.(c) No.22910 of 2011_ 6 **KLT short notes 34)** is relied upon to contend that Rule 1 to 5A of Chapter III of Kerala Education Rules (KER) confer power on educational officer to consider the approval of the appointment or change in the personnel of the Manager. If there is any serious dispute as to the education agency or who represents the educational agency, the educational officers are not competent to decide this question. It is also held that the Rule making authority has not entrusted with the educational officers, the jurisdiction to decide those disputes which may involve taking up of evidence and considering complicated legal questions. 10. On the other hand learned counsel for the 4[th] respondent, relied upon the judgment in O.P. No.5633/1986 of a learned Single Judge who after reference to the powers of educational officers under Rule 5A, inter alia held that the statutory authority in every case shall not abdicate all its functions on the ground that the dispute is a fit one for the civil court to decide. 11. The main argument raised by the petitioner is that the DPI had gone beyond the jurisdiction vested in it under _W.P.(c) No.22910 of 2011_ 7 Rule 1 to 5A of Chapter III of KER. A reference to the Rules, would show that Rule 1 deals with what is a private educational institution and the classification of individual educational agency and corporate educational agency. A corporate educational management requires framing of rules and approval as provided under Rule 2 of Chapter III of KER and Rule 4 deals with approval of appointment of managers. Rule 4 prescribes that the educational officers shall be competent to approve the appointment of managers by educational agencies and to approve changes in the personnel of managers. Any person aggrieved by an order of the educational officer can file an appeal before the Director. Government has the power to revise any order passed by the DPI. Rule 5 regulates, the change of personnel of the managers of institutions and it indicates that all changes in the personnel of managers shall be immediately reported to the educational officers. Rule 5A however indicates that no changes in the management of any aided school involving change of ownership shall be effected except with the previous permission of the director. _W.P.(c) No.22910 of 2011_ 8 12. In fact, application of Rule 5A arises only in a case, where there is change of management involving change of ownership. Approval and appointment of manager is covered by Rule 4, which does not indicate that the educational authority should consider the internal disputes between the members of the Managing Committee or the general body of members. Though, the counsel for respondent argues that there is a bar of jurisdiction under Section 33 of the Kerala Educational Act, which prevents the parties proceeding before the civil court for adjudicating the disputes between them, I do not think that the said provisions applies to the factual circumstances involved in the case. 13. Having regard to the power given to the educational authorities under Rule 4 and 5, I do not think any power is vested in DPI, or any other educational officer to consider the question regarding whether the meeting of the corporate educational agency is validly held. The educational authorities are bound to approve the appointment of manager and change of manager. The power under Rule 4 or 5 does not permit the educational _W.P.(c) No.22910 of 2011_ 9 authorities to make an enquiry into the validity or otherwise of the resolution passed in such meetings, which definitely is a matter that could be agitated only in a properly instituted suit and only the civil court will have jurisdiction to consider the validity of such decisions. When the general body has taken a decision and the same is communicated to DPI, one member alone cannot have dispute regarding the validity of such meeting. The general body decision in the case of appointment of the petitioner as manager is the decision of the members of the Society which cannot be brushed aside by the DPI on the complaint of one dissident member. That being the situation, I am of the view that the DPI had exceeded his jurisdiction in passing Ext.P5 order. 14. A contention has been urged on behalf of the Government, that the petitioner has an alternate remedy by way of revision. The revisional power of government is covered by Rule 4(iv) of Chapter III of KER. Existence of the revisional power, does not imply that the same should be availed by an aggrieved person, in a case where the DPI had acted without jurisdiction. This is a case which involves _W.P.(c) No.22910 of 2011_ 10 complete lack of jurisdiction, for the DPI to interfere with the decisions taken by the management, and for that reason, I am of the view that the said contention of the government is not sustainable. In the result, Exts.P5 and P6 are quashed. The 3[rd] respondent shall hand over the management of the institution to the petitioner on receipt of a copy of this judgment. _Sd/-_ **A.M. SHAFFIQUE, (Judge)** _// True Copy//_ _P.A. To Judge_ _ss_