Sangeetha Society Management Corporate Aided Schools v. Government of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** # **`THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ## **`&`** ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY MONDAY, THE 8[TH] DAY OF NOVEMBER 2021 / 17TH KARTHIKA, 1943 WP(C) NO. 23409 OF 2021 ``` ## **`PETITIONER:`** ``` SANGEETHA SOCIETY MANAGEMENT CORPORATE AIDED SCHOOLS, PALAMATTAM, THATTEKKAD P. O., KOTHAMANGALAM, REPRESENTED BY ITS CORPORATE MANAGER, T. P. VARGHESEKUTTY, THEKKILAKKAT HOUSE, THATTEKKAD P. O., KOTHAMANGALAM, PIN – 686 681. ``` ``` BY ADVS. M.A.ABDUL HAKHIM JOSEPH GEORGE ``` ## **`RESPONDENTS:`** - `1 THE GOVERNMENT OF KERALA REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.` - `2 DIRECTOR OF GENERAL EDUCATION, DIRECTORATE OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM, PIN - 695 014.` - `3 DEPUTY DIRECTOR OF EDUCATION DEPUTY DIRECTORATE OF EDUCATION, CIVIL STATION, KUNATHURMEDU, PALAKKAD, PIN – 678 001.` - `4 DISTRICT EDUCATIONAL OFFICER GENERAL EDUCATION DEPARTMENT, MUNICIPAL COMPLEX, ROBINSON ROAD, SULTANPET, PALAKKAD, PIN – 678 014.` - `5 ASSISTANT EDUCATIONAL OFFICER, KOLLENGODE GENERAL EDUCATION DEPARTMENT, KOLLENGODE - ANAMARI ROAD, KOLLENGODE, PIN – 678 506.` - `6 ASSISTANT EDUCATIONAL OFFICER, CHITTUR, GENERAL EDUCATION DEPARTMENT, CHITTUR, PIN – 678 101.` **2** ## **W.P.(C)No.23409 of 2021-A** - `7 KOLLENGODE GRAMA PANCHAYAT, KOLLENGODE, PIN – 678 506, REPRESENTED BY ITS SECRETARY.` - `8 ELAPPULLY GRAMA PANCHAYAT, VENGODI, ELAPPULLY, PIN – 678 622, REPRESENTED BY ITS SECRETARY.` ``` SRI.V. TEK CHAND, SR GP FOR R1 TO R6, SRI.SYAM J.SAM, SC FOR R7 ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P.(C)No.23409 of 2021-A** **3** ## **JUDGMENT** ## Dated this the 8[th] day of November, 2021 ## **S.Manikumar, C.J.** ## In the instant writ petition, petitioner has sought for the following reliefs: - “(a) issue a writ of mandamus or such other writ, order or direction compelling the respondents to complete the study initiated as per Ext.P6 with reference to different types of roofings and false ceilings of school buildings after hearing all stake holders including the petitioner and to maintain status quo with respect to the roofings in the school buildings till then. - (b) issue a writ of mandamus such other writ, order or direction compelling the respondents to give Fitness Certificates to the school buildings having asbestos and tin sheet roofings with sufficient false ceiling under the roofings in the schools of the petitioner [(1) St.Mary’s LPS Achanamcode (2) TALPS, Kollengode & (3) ALPS Ramassery]. - (c) issue a writ of certiorari or such other writ, order or direction setting aside Exts.P1, P2, P3 and P4 to the extent to which it is applicable to the petitioner.” **W.P.(C)No.23409 of 2021-A** **4** 2. On similar reliefs, W.P.(C)No.23846 of 2021 has been filed by Father Varghese Manavalan. After considering the pleadings, submissions and entire material on record therein, this court, by judgment dated 2.11.2021, declined to grant the reliefs. The operative portion of the judgment in W.P. (C)No.23846 of 2021 reads thus: “15. Thus from the materials on record, it could be deduced that Government have complied with the directions issued by this court dated 3.9.2019 in W.P. (C)No.22457/2019 to remove asbestos sheet roofings from all the schools functioning under the education department within a period of two years from the date of the Government Order. 16. However, it is not clear as to how the Chief Engineer of LSG-Local Infra Structure Development and Engineering Wing, Revenue Complex, Thiruvananthapuram can call for any directions/ suggestions/opinions from the officers of the Engineering Department. Such an attempt on the part of the Chief Engineer, LSG-Local Infra Structure Development and Engineering Wing would amount to deviating from the compliance of the directions issued on 3.9.2019 by this court in W.P.(C)No.22457/2019. **W.P.(C)No.23409 of 2021-A** **5** 17. During the course of hearing, Mr.M.A.Abdul Hakhim, learned counsel for the petitioner brought to the notice of this court an interim order passed by the learned Single Judge on 3.9.2019 in W.P.(C)22457/2019. Said writ petition has been filed by the school manager of Koorikuzhi A M U P School, Kaipamangalam, Thrissur against the removal of asbestos sheet roofing from the class rooms of the school. 18. Interim order dated 3.9.2019 in W.P. (C)No.22457/2019 reads as under: “Petitioner, who is the manager of an aided school challenges Ext.P6 and P8 order rejecting his request for 3 years' time for replacing the asbestos roof of 5 class rooms of his school. Pointing out the large number of schools, as given in Ext.P9 to P10 lists, having asbestos roof petitioner alleges discrimination. 2. It is seen that the respondents have directed the petitioner to replace the asbestos roof in the light of the reports/recommendations of Human Rights Commission, Child Rights Commission, World Health Organisation, etc. In order to protect the children from the possible health hazards. At the same time, it appears that respondents are not taking any effective action to see that such roof is replaced in all the schools and the children therein also are protected. 3. The 1[st] respondent shall therefore file an affidavit as to why no action is taken for prohibiting such roof for the buildings of schools in the state and why no action is taken to see that the asbestos roof of the class rooms in all the schools are replaced. The respondents shall also state why no action is taken to incorporate appropriate provisions providing for specifications for the roof also of the class rooms. **W.P.(C)No.23409 of 2021-A** **6** There shall be a direction to the respondents to see that the asbestos roof of the class rooms of all the schools are replaced in a time bound manner.” 19. The Government have issued order complying with the interim order as stated supra and when the time limit for removal of asbestos sheet roofings specified in Ext.P3 Government Order dated 9.10.2019 has already expired, it is too late in the day to seek for quashing of Exts.P1, P2, P3 and P4 orders impugned in this writ petition. There are other orders issued by the Directorate. 20. Quashing of Ext.P3 and the consequential directions would amount to setting aside the interim order dated 3.9.2019, which this court cannot do at this distance of time. 21. It is trite law that when the directions contained in a judgment is acted upon, appeal is not maintainable. Reference can be made to the following decisions: i. In **State of Nagaland and Another v. Toulvi Kibami and Another** (cited supra), the Hon'ble Apex Court held as under: “2. Having heard learned counsel for the parties, we are of the view that in view of the subsequent events that had taken place consequent upon the judgment of the Division Bench, the review petition filed by respondent No. 1 was not maintainable. In fact the judgment of Letters Patent Bench was acted upon and it stood exhausted and the review petition was futile. Under such circumstances, the review petition ought not to have been entertained **W.P.(C)No.23409 of 2021-A** **7** and decided on merits. 3. For the aforesaid reasons, we set aside the order and judgment under challenge. The appeals are allowed. However, it will be open to respondent No. 1 to challenge the promotion of respondent No. 2 afresh by a separate petition under Article 226 of the Constitution of India if he is so advised. In case such a petition is filed, it shall be entertained and decided on merits. We leave all questions of law open to be decided in that case.” ii. That apart, in **Sh. C. Lawmzuala v. Mizoram University and Anr.** , reported in **(2015) SCC Online Gau 803** , a Hon'ble Division Bench of the High Court of Gauhati at Aizawl held as under: **“** 6 **.** In the instant case also, during the pendency of the writ petition, acting upon the impugned order of this court, advertisement for the post in question was issued, in response whereof the petitioner also submitted his application, but he was not called for the interview as he did not qualify for the post. Under the circumstances, the impugned order has been exhausted and the review petition is futile. Therefore, in terms of the decision in _**Toulvi Kibami**_ (supra), this review petition cannot be entertained and decided on merit. Since the review petition can be rejected on the afore-stated ground, it is not necessary, to deal with the other contentions of the learned senior counsel for the petitioner since a court of law does not decide more than what is necessary.” iii. Following the decision in **Toulvi Kibami'** s case (cited supra), a learned single Judge of this Court in **Plakkattu Granites (P) Limited v. State of Kerala** [Judgment dated 14.08.2020 in R.P. No.326 of 2019 in W.P.(C) No.25012/2013], held as under: “7...........................Therefore, I am also of the view **W.P.(C)No.23409 of 2021-A** **8** that, since the directions contained in the common judgment rendered by this Court was acted upon, a review is not maintainable under law. The said issue was considered by the Apex Court in **State of Nagaland and Ors. v. Toulvi Kibami and Ors.** [(2003) 8 SCC 671] and held that when a judgment is acted upon a review petition cannot be sustained under law. …........” iv. In **P. Anil Kumar and Others v. Indian Red Cross Society, Represented by its Secretary General, National Headquarters and Others** , reported in **2020 SCC Online Ker 3376** , we held as under: “12. ................Yet another reason that would weigh with us is that, already the judgment is acted upon and the committee constituted by the National Headquarters headed by a retired Judge of this Court has proceeded with the enquiry, and the enquiry is complete and the report is awaited. 13. In that view of the matter, since the judgment is acted upon, a review petition at a belated stage is not maintainable under law. The said issue was considered by the Apex Court in the _**State of Nagaland v. Toulvi Kibami [(2003) 8 SCC 671]**_ .” 22. Though the above cases are rendered with reference to implementation of judgments, the principle can be applied to implementation of interim orders, as well. 23. In the light of the above decisions of the Hon'ble Supreme Court and another High Courts, writ appeal is not permissible. 24. In the light of the above discussion and decisions, prayer sought for in the writ petitions cannot be granted. Accordingly, writ petition is dismissed. **9** ## **W.P.(C)No.23409 of 2021-A** 25. Learned counsel for the petitioner prayed that liberty be granted to raise the issues before the Government. In as much we have dismissed the writ petition, we are not expressing any opinion on the above.” In the light of the above decision, instant writ petition is dismissed. Pending interlocutory applications, if any, shall stand closed. Sd/- **S.Manikumar Chief Justice** Sd/- **Shaji P.Chaly Judge** **vpv** **W.P.(C)No.23409 of 2021-A** **10** ## **`APPENDIX OF WP(C) 23409/2021 PETITIONER EXHIBITS`** ``` Exhibit P1A PHOTOSTAT COPY OF THE ORDER DATED 31.01.2009 OF THE KERALA STATE HUMAN RIGHTS COMMISSION, THIRUVANANTHAPURAM IN HRMP.NO.126/2007. ``` ``` Exhibit P2A PHOTOSTAT COPY OF THE CIRCULAR DATED 19.06.2017 ISSUED BY THE ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTIONS. ``` - `Exhibit P3 A PHOTOSTAT COPY OF THE GOVERNMENT ORDER DATED 09.10.2019 ISSUED BY THE 1ST RESPONDENT.` - `Exhibit P4 A PHOTOSTAT COPY OF THE GOVERNMENT ORDER DATED 17.10.2019 ISSUED BY THE 1ST RESPONDENT.` - `Exhibit P5 A PHOTOSTAT COPY OF THE ORDER DATED 05.03.2020 ISSUED BY THE DIRECTOR OF PANCHAYATS.` - `Exhibit P6 A PHOTOSTAT COPY OF THE CIRCULAR DATED 16.08.2021 ISSUED BY THE CHIEF ENGINEER, LOCAL INFRASTRUCTURE DEVELOPMENT AND ENGINEERING WING, LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM.` - `Exhibit P7 A TRUE PHOTOGRAPH DATED NIL SHOWING THE FALSE CEILINGS UNDER THE ROOFINGS IN THE CLASS ROOMS IN ST. MARYS LPS ACHANAMCODE BELONGING TO THE PETITIONER.` - `Exhibit P8 A TRUE PHOTOGRAPH DATED NIL SHOWING THE FALSE CEILINGS UNDER THE ROOFINGS IN THE CLASS ROOMS IN TALPS, KOLLENGODE BELONGING TO THE PETITIONER.` - `Exhibit P9 A TRUE PHOTOGRAPH DATED NIL SHOWING THE FALSE CEILINGS UNDER THE ROOFINGS IN THE CLASS ROOMS IN ALPS RAMASSERY BELONGING TO THE PETITIONER.` ``` Exhibit P10A PHOTOSTAT COPY OF THE NEWS ITEM REPORTED IN MATHRUBHOOMI DAILY NEWS PAPER DATED 26.10.2021. ``` //true copy// P.A. to Judge