High Court of KeralaSingle Judge2021-01-08Writ petition disposed with directions to Direc...

P.S. Sasikumar v. State of Kerala & Others

Case / Petition Number:WP(C).No.23759 OF 2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: ANU SIVARAMAN
Judgment Date: 2021-01-08
Court Decision / Holding: The writ petition is ordered accordingly. The Court held that the Director cannot insist on the staff consent as a precondition for considering the application under Rule 5A. The Director is empowered to examine whether the transfer would adversely affect the staff, and such adverse effects may be considered at the merits stage. The Court directed that if the petitioner resubmits the application with all required documents except staff consent, the Director shall consider the application on its merits and pass appropriate orders after hearing all concerned within two months from the date of receipt of a copy of this judgment.
Final Disposition: Writ petition disposed with directions to Directors to consider merit-based transfer upon resubmission without staff consent within two months; petition allowed.

Parties to the Case

Appellants / Petitioners

P.S.Sasikumar aged 51 years s/o Sivan Nair, F.O. BUILTECH GREENS, MANAPULIKAVU, KUNNATHURMEDU, PALAKKAD-13

Respondents

State of Kerala, General Education Department, Government Secretariat (Annex), Thiruvananthapuram-695001
Director of General Education (former Director of General Education), Thiruvananthapuram-695014
Deputy Director of Education, Civil Station, Palakkad-678001
Assistant Educational Officer, Alathur, Palakkad-678541
Manager, Karuna Upper Primary School, Thennilapuram, Alathur-678542
President, Mahadeva Educational and Charitable Society, (Society registered under Travancore Cochin Charitable Institutions Act 1955), Karikkode PO, Vaikkom, Kottayam District-686610

Legal Representation & Advocates

Counsels for Petitioners

• SRI.U.BALAGANGADHARAN
• SMT.S.ANJUSHA

Counsels for Respondents

• SR.GP NISHABOSE

Case Synopsis & Summary

The petitioner, P.S. Sasikumar, challenged the rejection of his application for transfer of ownership and change of management of an aided school under Rule 5A of Kerala Education Rules (KER), and sought mandamus directing the Director of General Education to consider the transfer application (filed jointly with the fifth respondent, the Manager of Karuna Upper Primary School) on merits, notwithstanding objections in Ext. P7. The petitioner argued that Rule 5A empowers the Director to grant permission unless the transfer adversely affects the school’s functioning and staff interests, and that no express staff consent is a prerequisite for consideration. He relied on Division Bench decisions Kesava Kurup v. State of Kerala (1988) 1 KLT 77 and P.G. Madhavan v. P.K. Santhakumari Amma (1994 KHC 259) to contend that the impact on staff should be assessed by the DPI rather than being negated by lack of staff consent. The respondents contended that a 1987 circular requires staff consent to accompany the application and that such consent is reflected in the application format. The Learned Judge held that staff consent cannot be a precondition for consideration and that the Director may evaluate any adverse effect on staff at the merits stage. The Court directed the Director to decide on merits if the petition is resubmitted with all required documents except staff consent, within two months of obtaining a copy of the judgment.

Provisions of Law Cited

Rule 5A of Chapter III, Kerala Education Rules (KER)Travancore Cochin Charitable Institutions Act 1955

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner's counsel argued that Rule 5A of Chapter III, KER empowers the Director to grant permission for change of management if the transfer would not adversely affect the institution or staff; consent of staff is not a statutory prerequisite for considering the transfer. The petitioner relied on Kesava Kurup v. State of Kerala (1988) 1 KLT 77 and P.G. Madhavan v. P.K. Santhakumari Amma (1994 KHC 259), contending that staff interests are to be assessed by the DPI during scrutiny under Rule 5A, not blocked by the absence of formal staff consent. It was argued that a 1987 circular requiring staff consent is not determinative and that the Director should evaluate potential adverse effects at the merits stage. The petitioner sought mandamus to have Ext. P3 considered and Ext. P7 annulled, and to permit resubmission with missing items later.

Contentions of Respondents

The Government Pleader argued that the 1987 circular requiring teacher consent accompanies the application, and that Form-format inquiries include staff consent. The Director is expected to examine whether staff consent exists and whether the transfer would adversely affect staff interests. The respondents contended that the application cannot be treated on merits without addressing staff consent, and that Ext. P7 reflects the Director's earlier stance. They urged adherence to the procedural requirements and the need to protect staff interests while acknowledging the Director's discretion under Rule 5A."},

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kesava Kurup v. State of Kerala	1988 (1) KLT 77	Positive	The Division Bench decision was cited to support that staff interests may be considered by the DPI in considering a transfer under Rule 5A.
P.G.Madhavan v. P.K.Santhakumari Amma and others	1994 KHC 259	Positive	The Division Bench decision cited to indicate that staff interests are protected under Rule 5A and require consideration by the DPI during assessment.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 08TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942** ## **WP(C).No.23759 OF 2020(T)** ## **PETITIONER:** **P.S.SASIKUMAR AGED 51 YEARS S/O. SIVAN NAIR, F.O. BUILTECH GREENS, MANAPULIKAVU, KUNNATHURMEDU, PALAKKAD-13.** **BY ADVS. SRI.U.BALAGANGADHARAN SMT.S.ANJUSHA** ## **RESPONDENTS:** - **1 STATE OF KERALA, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT (ANNEX), THIRUVANANTHAPURAM-695001.** - **2 THE DIRECTOR OF GENERAL EDUCATION, (FORMER DIRECTOR OF GENERAL EDUCATION), THIRUVANANTHAPURAM-695014.** - **3 THE DEPUTY DIRECTOR OF EDUCATION, CIVIL STATION, PALAKKAD-678001.** - **4 THE ASSISTANT EDUCATIONAL OFFICER, ALATHUR, PALAKKAD-678541.** - **5 THE MANAGER, KARUNA UPPER PRIMARY SCHOOL, THENNILAPURAM, ALATHUR-678542.** - **6 THE PRESIDENT, MAHADEVA EDUCATIONAL AND CHARITABLE SOCIETY, (SOCIETY REGISTERED UNDER TRAVANCORE COCHIN CHARITABLE INSTITUTIONS ACT 1955), KARIKKODE PO, VAIKKOM, KOTTAYAM DISTRICT-686610** **SR.GP - NISHA BOSE** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.23759 OF 2020** **2** ## **JUDGMENT** This writ petition is filed seeking the following prayers: _“(1) Issue writ in the nature of mandamus commanding the second respondent to consider Ext.P3 application for transfer of management of 5[th] respondent school to the petitioner untrammeled by objections in Ext.P7._ _(2) Call for the records leading to Ext.P7 and set aside the same by issuing writ in nature of certiorari._ _(3) Issue writ in the nature of mandamus commanding the second respondent not to insist for consent of staff of the School for transfer of management and also do not insist for notarized affidavit of the transferee Manager._ _(4) Declare that no consent of staff of the School is required for transfer of management running school involving ownership under Rule 5A of Chapter III of KER_ 2. Heard the learned counsel for the petitioner and the learned Government Pleader. 3. It is submitted by the learned counsel for the petitioner that the application preferred by the petitioner for permission for effecting a transfer of ownership of the school and change of management under Rule 5A of Chapter III, KER has been rejected on the ground that the **WP(C).No.23759 OF 2020** **3** consent of the staff of the school is not appended with the application. It is further stated in Ext.P7 that the notarized affidavit of the transferee manager is not produced along with the application. Ext.P7 also states that the approval for appointment of the prior manager is also not found along with the application. 4. The learned counsel for the petitioner submits that all the documents required by the Rules have been produced by the petitioner. It is submitted that the notarized affidavit of the transferee manager will also be made available. It is further submitted that there is no provision in the Rules for a specific consent by the staff and that the DPI can consider whether the transfer is likely to affect the staff adversely and pass orders on merits in the application. The decisions of Division Bench of this Court in **Kesava Kurup v. State of Kerala [1988 (1) KLT 77]** and **P.G.Madhavan v. P.K.Santhakumari Amma and others [1994 KHC 259]** are relied on by the learned counsel for the petitioner to contend that the issue of any adverse effect of the transfer of management on the staff is liable to be considered by the DPI while considering an application under Rule 5A. The Division Bench in **P.G.Madhavan v. P.K.Santhakumari Amma** (cited supra) **WP(C).No.23759 OF 2020** **4** had held that the interest of the staff can only be their interest as members of the staff of the schools under the educational agency and that the provisions of Rule 5A protect the rights of the staff and of the claimants for appointment in the school. It is therefore contended that the refusal to consider the application on the ground that there is no specific consent issued by the staff of the school is untenable. 5. The learned Government Pleader would submit that a Circular has been issued as early as in 1987 providing that the consent of the teachers of the school should accompany the application. It is submitted that in the format of the application also, the issue whether the teachers have consented to the change of managership is included. 6. I have considered the contentions advanced. Rule 5A specifically provides that no change of management of an aided school involving change of ownership shall be effected except with the prior permission of the Director. It is further provided that the Director may grant such permission unless the grant of such permission will, in his opinion, adversely effect the working of the institution and the interest of the staff and the person to whom the management is transferred. It is therefore evident that discretion is vested on the **WP(C).No.23759 OF 2020** **5** Director to grant or refuse permission on the ground stated in the Rule. 7. Having considered the provisions of the Rules as well as the binding decisions of the Division Bench, I am of the opinion that the Director who is duty bound to consider an application for prior permission for change of management under Rule 5A cannot insist that the application will not be considered unless there is a consent expressed by all the teachers of the school. The Director is empowered to consider whether there is any adverse effect on the staff of the school. However, this is an aspect which is to be looked into at the time of considering the application for prior permission for change of management. The application cannot be refused to be considered on the ground that a consent by the staff does not accompany the same. 8. In the above view of the matter, there will be a direction that in case the petitioner resubmits the application along with all required documents except the consent of the teachers, the application shall be considered on its merits by the Director. The Director shall consider the specific issue whether such transfer will be against the interest of the staff of the institution. Appropriate orders shall be passed after **WP(C).No.23759 OF 2020** **6** hearing all concerned within a period of two months from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly. **Sd/-** **ANU SIVARAMAN JUDGE** NP **WP(C).No.23759 OF 2020** **7** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1** **A TRUE COPY OF DOCUMENT NO.731/2020 DATED 05/03/2020 OF SRO, ALATHUR.** - **EXHIBIT P2 A TRUE COPY OF ORDER DATED 14/10/2020 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P3 A TRUE COPY OF APPLICATION FOR CHANGE OF MANAGEMENT SUBMITTED JOINTLY BY THE PETITIONER AND 5TH RESPONDENT TO SECOND RESPONDENT DATED 05/03/2020.** - **EXHIBIT P4 A TRUE COPY OF LETTER OF PETITIONER TO 4TH RESPONDENT DATED 13/05/2020.** - **EXHIBIT P5 A TRUE COPY OF CERTIFICATE DATED 24/04/2020 ISSUED BY THE SI OF POLICE, TOWN SOUTH POLICE STATION.** - **EXHIBIT P6 A TRUE COPY OF SOLVENCY CERTIFICATE ISSUED BY THE VILLAGE OFFICER, MATHUR DATED 13/03/2020.** - **EXHIBIT P7 A TRUE COPY OF LETTER DATED 14/09/2020 ISSUED BY THE SECOND RESPONDENT TO 4TH RESPONDENT.** - **EXHIBIT P8 A TRUE COPY OF STATUTORY APPEAL DATED 20/09/2020 SUBMITTED BY THE PETITIONER TO FIRST RESPONDENT.** - **EXHIBIT P9 A TRUE COPY OF LETTER OF THE AEO ALATHUR DATED 26/06/2020 ISSUED TO THE PETITIONER.** - **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R4(a) TRUE COPY OF THE APPLICATION DATED 05.03.2020** - **EXHIBIT R4(b) TRUE COPY OF COVERING LETTER OF THE APPLICATION DATED 05.03.2020** **EXHIBIT R4(c) TRUE COPY OF THE COVERING LETTER DATED 30.06.2020 AND PAGE 1 OF THE APPLICATION** **WP(C).No.23759 OF 2020** **8** **EXHIBIT R4(d)** **TRUE COPY OF PAGE 2 OF THE APPLICATION AS PER COVERING LETTER DATED 30.06.2020**