Ramanand.R v. State of Kerala and Others

W.P.(C).No.30112/2018 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 25TH DAY OF NOVEMBER 2020 / 4TH AGRAHAYANA, 1942** ## **WP(C).No.30112 OF 2018(L)** ## **PETITIONER:** **RAMANAND.R AGED 40 YEARS, S/O.RAMACHANDRAN, MANAGING TRUSTEE, NAVARATNA CHARITABLE TRUBST, (RESIDING AT AMARAVATHY P.O., CHERODE, VATAKARA-673 106).** **BY ADVS. SRI.T.T.MUHAMOOD SRI.V.E.ABDUL GAFOOR SRI.A.MOHAMMED SAVAD SRI.JAYENDRAN KOCHOTH SRI.C.Y.VINOD KUMAR** ## **RESPONDENTS:-** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT,**| ||**GENERAL EDUCATION DEPARTMENT, GOVERNMENT**| ||**SECRETARIAT, THIRUVANANTHAPURAM-695 001.**| |**2**|**THE DIRECTOR OF PUBLIC INSTRUCTIONS,**| ||**OFFICE OF THE DPI, JAGATHY, THIRUVANANTHAPURAM-**| ||**695 001.**| |**3**|**DEPUTY DIRECTOR OF EDUCATION,**| ||**OFFICE OF THE DEO, THALASSERY.**| |**4**|**DISTRICT EDUCATIONAL OFFICER,**| ||**OFFICE OF THE DEO, THALASSERY.**| |**5**|**SMT.SALINI.K.**| ||**MANAGER, RAMAKRISHNA HIGH SCHOOL, OLAVILAM,**| ||**THALASSERY.**| W.P.(C).No.30112/2018 2 - **6 SRI.SUNIL.C.,** - **AMARAVATHY, VILLIAPPILLYU AMSOM, VILLIAPPILLY P.O., VATAKARA-673 542.** - **7 SMT.ATHIRA.C.H., LPSA, RAMAKRISHNA HIGH SCHOOL, OLAVVILAM, THALASSERY-673 312.** - **8 SMT.SUBHIKSHA.O.T., LPSA, RAMAKRISHNA HIGH SCHOOL OLAVILAM, THALASSERY-673 312.** - **9 SMT.SUMAYYA.C.K., HSA(URDU), RAMAKRISHNA HIGH SCHOOL OLAVILAM, THALASSSERY-673 312.** - **10 SMT.SILPASREE, HSA (PHYSICS), RAMAKRISHNA HIGH SCHOOL OLAVILAM, THALASSSERY-673 312.** - **11 ARATHI,** **UPSA, RAMAKRISHNA HIGH SCHOOL, OLAVILAM, THALASSERY-673 312.** **R1-4 BY GOVERNMENT PLEADER** **R5 BY ADV. GEORGE POONTHOTTAM R5-6 BY ADV. SRI.GEORGE POONTHOTTAM (SR.) R5-6 BY ADV. SMT.NISHA GEORGE** **R10 BY ADV. SRI.K.B.GANGESH** ## **OTHER PRESENT:** **SR. GP P.M. MANOJ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-10-2020, THE COURT ON 25-11-2020 DELIVERED THE FOLLOWING:** W.P.(C).No.30112/2018 3 ## **JUDGMENT** **Dated this the 25[th] day of November 2020** ## 1. This writ petition is filed seeking the following prayers:- i) A writ of mandamus or any other appropriate writ, order or direction, directing the respondent No.5 to execute the sale deed transferring the school (Ramakrishna High School Olavilam) and its property in favour of the petitioner in accordance with the Ext:P2 agreement. ii) A writ of mandamus or any other appropriate writ, order or direction, directing the respondents to handover the manager ship of Ramakrishna High School Olavilam, Thalassery, to the petitioner or in the alternative to direct the respondents No. 1 to 4 to take over the manager ship of the Ramakrishna High School, Olavilam on a temporary basis till issue is settled by the civil court. iii) A writ of mandamus or any other appropriate writ, order or direction, directing respondent No.4 not to approve the appointment of teachers made in Ramakrishna High School, Olavilam after the filing of Ext:P12 suit . iv) A writ of mandamus or any other appropriate writ, order or direction, declaring that the appointments of teaching staff made by 5[th] respondent in Ramakrishna High School, Olavilam after filing Ext:P12 original suit without obtaining written consent of the petitioner is beyond the powers conferred and hence illegal. v) Direct the 2nd respondent to declare that the 5[th] respondent is unfit to hold the office of manger of Ramakrishna High School, Olavilam. vi) Direct the 2[nd] respondent is consider and pass orders on Ext:P16 representations forth with. ## W.P.(C).No.30112/2018 4 2. Heard the learned counsel for the petitioner, the learned Government Pleader and the learned counsel appearing for respondents 5 to 11. 3. It is submitted by the learned counsel for the petitioner that the petitioner is the managing trustee of a Charitable Trust. By Exhibit P2, the 5[th] respondent executed agreement for the sale of Ramakrishna High School, Olavilam and its property to the petitioner for a sale consideration of Rs.2,30,00,000/-. At the time of execution of agreement Rs.30,00,000/- was paid to the 5[th] respondent. Thereafter, Rs.20,00,000/- was paid on 13.06.2011. Balance Rs.1,80,000/- was required to be paid on the registration of the property after obtaining permission of the DPI. Though a substantial amount was paid, there was delay in applying for permission from the DPI. It is contended that as per the terms of agreement, appointments could be made only with written consent of the petitioner. In pursuance to the agreement, the petitioner constructed the new building, carried out maintenance and purchased new school buses. However in total violation of the agreement, the 5[th] respondent W.P.(C).No.30112/2018 5 took steps to register the property in favour to a third party. Moreover, several appointments were made without the consent of the petitioner. Therefore, the petitioner filed a suit. It is stated that though Exts.P15 and P16 were submitted before the Educational Officers seeking orders not to approve appointments and not to permit the transfer of the school to any other person as also seeking action against the 5[th] respondent under Rule 7 of Chapter III, KER, no positive action is taken thereon. 4. An interim order of stay had been issued on 13.09.2018 in this writ petition directing the 4[th] respondent not to approve appointments of the teachers made in the school after the filing of Ext.P12 suit. 5. A counter affidavit has been placed on record by the 5[th] respondent. It is submitted that the writ petition is not maintainable since it is in the nature of a suit seeking specific performance of an agreement between two private parties. It is stated that a suit is already filed by the petitioner as evidenced from Ext.P12 and the matter is liable to be decided in the civil W.P.(C).No.30112/2018 6 court. It is contended that though certain cheques had been handed over by the petitioner to the 5[th] respondent, the cheques were taken back by the petitioner and the payment of the balance consideration was not made by the petitioner as agreed in Ext.P2 and that is the reason why the agreement could not be honoured. It is submitted that Ext.P10 prior sanction for sale of the property obtained by the 5[th] respondent was sought to be cancelled by Ext.R5(a) request dated 20.11.2015. It is submitted that a Crl.M.C. filed by the 5[th] respondent herein to quash Ext.P14 FIR is also pending before this Court. It is submitted that the present writ petition is only an attempt to induce the 5[th] respondent to part with his property and that the action taken by the 5[th] respondent to make appointments in the school where he is the approved manager is perfectly legal and valid. 6. A counter has been placed on record by the 2[nd] respondent as well. It is stated that the 5[th] respondent did not register the property of the school to the petitioner and did not submit any request for change of management on the basis of Ext.P10. It is stated that the 5[th] respondent had executed a sale deed dated 23.11.2015 in favour of Sri.Sunil C, Sri.Muraleedharan K.S., W.P.(C).No.30112/2018 7 Sri.Jigadeesh Kumar, Sri.K.V.Shya Mahaesh and Sri.Dinesh Kumar. It is stated that thereupon, the petitioner's trust had filed an original suit before the Sub Court, Thalassery, as per Ext.P12. It is stated that the 2[nd] respondent did not issue any order on the representations filed by the petitioner, since the suit is pending. It is submitted that teachers had been appointed in the school by the 5[th] respondent and since the 5[th] respondent remains the manager of the school, the said appointments are liable to be considered for approval. 7. The 10[th] respondent has also placed a counter affidavit on record. It is stated that retirement vacancy of HSA (Physical Science) has arisen on 31.05.2016 and the manager appointed one Danima O.K. in the said vacancy. Since the said incumbent did not report for duty and later submitted a resignation to the 5[th] respondent, the 10[th] respondent was appointed in the same post from 19.09.2016 onwards by Ext.R10 (a) appointment order. It is submitted that the teacher has the necessary qualifications and eligibility for approval of the appointment. However, the appointment is not being approved only because of the pendency of the writ petition and the interim order herein. ## W.P.(C).No.30112/2018 8 8. The learned counsel for the 10[th] respondent relies on the decisions of this court in **Padmanabhan Nambiar Vs. Government of Kerala** [1997 (2) KLT 725] **, Manager, St.Mary's HS Vs. Beji Abraham** [ILR 2002 (3) 100], **P.S.Menon v. State of Kerala and others** (AIR 1970 Ker 165) and the decision of the Apex Court in **Gokaraju Rangaraju v. State of Andhra Pradesh** [AIR 1981 SC 1473]. It is further submitted that the later decisions of this Court also specifically considered the issue and held that there can be no interdiction of approval of appointment by an approved manager on the ground that there is a recital in an agreement for sale not to make appointments. The decision of a Division Bench of this Court in **Roopa v. State of Kerala** [2014(1) KLT 483] is specifically referred to and relied on. 9. The Division Bench considered the following fundamental questions:- - “i. Whether Manager of an aided school, functioning under the Kerala Education Act, 1958 and Kerala Education Rules, 1959 can contract out his powers and duties under the K.E. Act and K.E.R. to an intending purchaser of the management and ownership of the school ? W.P.(C).No.30112/2018 9 ii. If such an agreement is executed by the Manager with another, whether the terms therein can override the provisions of K.E.Act and KE.R.?” After considering an almost identical factual situation where an approved Manager of a school had been interdicted by the terms of an agreement for sale of the school from making appointments in the school, the Division Bench held that the terms in the agreement interdicting appointments by a Manager approved under the Kerala Education Act and Rules are against the provisions of the said Act and the Rules and directly impinge upon the powers and duties of the Manager in the matter of administration of an aided school. The finding of the learned single Judge that the approved Manager is bound by the terms of the agreement was therefore found to be legally unsustainable. ## 10.0In paragraph 44 of the judgment it was held as follows:- “We are of the definite view that the appellant has a legal right to claim approval of appointment as peon as per Ext.P1 since it was issued by the approved Manager during her tenure in office. The law laid down by the learned Single Judge in Koyyode Madrassa U.P.School's case (supra) is not correct and the authorities cannot W.P.(C).No.30112/2018 10 take shelter under the above decision to deny appointment to the appellant. The terms and conditions in Ext.R5(a) restricting the powers and duties of the approved Manager is against the provisions of the K.E. Act and K.E.R. and, therefore, they cannot interdict the approved Manager from functioning in accordance with the provisions of the K.E. Act and K.E.R.” The writ appeal was, therefore, allowed and the appointment made by the approved Manager was directed to be approved. 11.In the instant case, it is admitted that Ext.P2 agreement had been executed by the 5[th] respondent for sale of the school and its property to the petitioner herein. It also appears that an application for prior permission for change of management had been submitted before the DPI and Ext.P10 order had been passed on 16.11.2013. Thereafter, it appears that there was a falling out between the parties and Ext.P12 suit came to be filed for specific performance of Ext.P2 agreement before the Sub Court, Thalassery. That is how things stand now. As such, I find that there has been no application submitted by the 5[th] respondent for change of management involving change of ownership and the 5[th] respondent continues as the approved manager of the school. The question with regard to W.P.(C).No.30112/2018 11 the specific performance of Ext.P2 agreement is a matter which has to be decided by the civil court in Ext.P12 suit. 12.However, during the pendency of the civil suit, the terms of a contract for sale cannot be relied upon by the petitioner to contend that a Manager approved under the provisions of the Kerala Education Act and Rules is interdicted from carrying out his duties and responsibilities of Manager or from exercising his privilege as such. The contentions of the petitioner with regard to money expended in the school on the basis of Ext.P2 agreement is a matter which has to be adjudicated in the suit. It is clear that the 5[th] respondent being the approved manager of the school was fully competent to make appointments in vacancies arising in the school in accordance with the provisions of the KER. So long as the 5[th] respondent remains the approved manager of the school, I can see no legal reason why the appointments made by the 5[th] respondent are not considered for approval by the Educational Authorities. I am of the opinion that the pendency of a suit filed by the Petitioner for specific performance of Ext.P2 W.P.(C).No.30112/2018 12 agreement cannot be a reason interdicting the approval of appointments made in the school. 13.In the above view of the matter, the writ petition cannot succeed. The same is dismissed. The respondents are directed to consider the proposals sent up by the 5[th] respondent for approval of appointments made by him in the school forthwith without delay. All contentions of the parties to Exhibit P2 agreement are left open to be considered in the proceedings pending in the civil court. The writ Petition is ordered accordingly. Sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.30112/2018 13 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE RECEIPT DATED 21.04.2011 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER.** **EXHIBIT P2 TRUE COPY OF THE AGREEMENT FOR SALE EXECUTED BY THE 5TH RESPONDENT WITH THE PETITIONERS ON 22.05.2011.** **EXHIBIT P3 TRUE COPY OF THE RECEIPT OF PAYMENT ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER ON 13.06.2011.** **EXHIBIT P4 TRUE COPY OF THE RECEIPT DATED 06.10.2011, SHOWING PAYMENT OF THE 20 LAKHS TO THE 5TH RESPONDENT BY THE PETITIONER. EXHIBIT P5 TRUE COPY OF THE RECEIPT DATED 13.03.2012, ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER. EXHIBIT P6 TRUE COPY OF THE RECEIPT DATED 17.05.2012 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER. EXHIBIT P7 TRUE COPY OF THE RECEIPT DATED 31.05.2012 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER. EXHIBIT P8 TRUE COPY OF THE RECEIPT DATED 30.08.2012 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER. EXHIBIT P9 TRUE COPY OF THE APPLICATION FOR CHANGE OF MANAGEMENT SUBMITTED BY THE 5TH RESPONDENT TO THE 2ND RESPONDENT ON 24.09.2012.** 14 W.P.(C).No.30112/2018 **EXHIBIT P10** - **EXHIBIT P11** **EXHIBIT P12** - **EXHIBIT P13** - **EXHIBIT P14** - **EXHIBIT P15** - **EXHIBIT P16** **TRUE COPY OF THE ORDER NO.EM(4)82369/2012/DPI/D.DIS DATED 16.11.2013 ISSUED BY THE 2ND RESPONDENT.** - **TRUE COPY OF THE LAWYER NOTICE DATED 17.11.2015 SENT FOR AND ON BEHALF OF THE 5TH RESPONDENT TO THE PETITIONER.** - **TRUE COPY OF THE PLAINT IN OS NO.95/15 PRESENTED BEFORE THE SUB JUDGE, THALASSERY.** - **TRUE COPY OF THE ORDER DATED 05.02.2016 IN IA NO.2820/15 IN OS 95/2015.** - **TRUE COPY OF THE FIR IN CRIME NO.9/2016 OF QUILANDY POLICE STATION.** - **TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER.** **TRUE COPY OF THE REPRESENTATION DATED 01.07.2016 SUBMITTED BY THE PETITIONER BEFORE DPI.** True copy PS to Judge