Saritha K.R. v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** # **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 1[ST] DAY OF NOVEMBER 2022 / 10TH KARTHIKA,** **1944** **WA NO. 1532 OF 2022** **AGAINST THE JUDGMENT DATED 10.10.2022 IN WP(C) 28940/2022** **OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **SARITHA K.R., W/O UDAYABHANU M., KEDARAM, PERUVATHOOR P.O., KOYILANDI, KOZHIKODE - 673 620.** - **BY ADVS. S.M.PREM** - **H.NARAYANAN** - **P.RAMACHANDRAN (PALAKKAD)** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 THE DIRECTOR OF GENERAL EDUCATION, JAGATHY, THYCAUD P.O., THIRUVANANTHAPURAM - 695 014.** - **3 THE DISTRICT EDUCATIONAL OFFICER, VATAKARA, KOZHIKODE - 673 101.** - **4 THE ASSISTANT EDUCATIONAL OFFICER, MELADI, PAYOLLI, KOZHIKODE - 673 522.** - **5 SRI. RAGHAVAN K., HARITHA, NAMBRATHKARA, NADUVATHOOR, KOYILANDI - 673 330.** 2 W.A.No.1532 of 2022 **BY ADVS. SRI.A.J.VARGHESE SR.GP S.ABHILASH K.SIJU ANJANA KANNATH PRATHEESH.P T.S.SREEKUTTY RENUKA VENU FATHIMA MOHAN** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 W.A.No.1532 of 2022 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **----------------------------------------------Writ Appeal No.1532 of 2022 ----------------------------------------------Dated this the 1[st] day of November, 2022** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** This writ appeal is directed against the judgment dated 10.10.2022 in W.P.(C) No.28940 of 2022. The appellant was the petitioner in the writ petition. Parties and documents are referred to in this judgment, as they appear in the writ petition. 2. The matter relates to the managership of an aided school namely, Nambrathkara U.P.School (the School). The School belongs to the fifth respondent. The fifth respondent was functioning as the Manager of the School as well. The petitioner is the daughter of the fifth respondent. She was 4 W.A.No.1532 of 2022 working as a Needle Work Teacher in the School. On a request made by the fifth respondent, the Government permitted the fifth respondent to appoint the petitioner as the Manager of the School by exempting her from the restrictions contained Rule 8 of Chapter III of the Kerala Education Rules (the KER). Ext.P7 is the order issued by the Government in this regard on 28.07.2007. On the strength of Ext.P7 order, the petitioner was functioning as the Manager of the School. While so, the fifth respondent wanted to continue as the Manager of the School and consequently, preferred Ext.P8 representation to the Educational Officer. Ext.P8 representation was forwarded by the Educational Officer to the Government and on the same, the Government issued Ext.P9 order on 31.01.2020 revoking Ext.P7 order. Immediately thereupon, the Educational Officer appointed the fifth respondent as the Manager of the School. Ext.P10 is the order issued by the Educational Officer in this regard on 06.02.2020. Exts.P9 and P10 orders were challenged by the petitioner before this Court in W.P.(C) No. 3513 of 2020. Ext.P12 is the interim order passed by this court on 07.02.2020. W.A.No.1532 of 2022 5 In terms of Ext.P12 order, this Court suspended Exts.P9 and P10 orders for a period of two weeks, and the same was extended until further orders later as per Ext.P13 order. W.P.(C) No.3513 of 2020 was later disposed by this Court setting aside Exts.P9 and P10 orders as they were passed without affording the petitioner an opportunity of hearing, and directing the Government to consider Ext.P8 representation made by the fifth respondent afresh. Ext.P14 is the judgment rendered by this Court in this regard. 3. Pursuant to Ext.P14 judgment, the Government considered the matter afresh, after affording the petitioner an opportunity of hearing and issued Ext.P17 order holding that being the educational agency of the School, the fifth respondent is entitled to appoint a person of his choice as the Manager of the School and he is also entitled to change the Manager, if he chooses to do so and therefore, Ext.P9 order earlier issued by the Government is in order. Ext.P17 order was under challenge in the writ petition mainly on the ground that the same is one that runs counter to the dictum laid down by 6 W.A.No.1532 of 2022 the Division Bench of this Court in **Sudheer v. Susheela** , 2011 (1) KLT 1084. The learned Single Judge affirmed Ext.P17 order holding that the same cannot be said to be against the dictum in **Sudheer** _(supra)_ . The petitioner is aggrieved by the decision of the learned Single Judge and hence this appeal. 4. Heard the learned counsel for the petitioner, learned counsel for the fifth respondent as also the learned Government Pleader. 5. The learned counsel for the petitioner contended that if the appointment of the Manager of an aided school by the educational agency is approved by the competent authority, the same cannot be revoked by the educational agency. He relied on the decision of the Division Bench in **Sudheer** _(supra),_ in support of the said proposition. He also argued that even if it is found that the fifth respondent was entitled to change the Manager, the Government ought not have restored Exts.P9 and P10 orders in terms of Ext.P17 order, for the said orders would create chaos as regards the acts done by the petitioner as the Manager of the school between Ext.P10 W.A.No.1532 of 2022 7 order dated 06.02.2020 and Ext.P17 order dated 29.08.2022. 6. We have examined the arguments advanced by the learned counsel for the petitioner. 7. Going by the scheme of the Kerala Education Act and the Rules made thereunder viz, the KER, it is for the educational agency to decide as to who should function as the Manager of the school and the educational agency is entitled to change the managership also, if he/she/they chooses to do so. The view aforesaid expressed by the Government in Ext.P17 order is, therefore, perfectly in order. As far as the case on hand is concerned, the fifth respondent being the individual educational agency of the school, he was entitled to change the Manager of the school. It is all the more so since the fifth respondent himself wants to function as the Manager of the School. The decision of the Division Bench of this Court in **Sudheer** _(supra)_ , as rightly found by the learned Single Judge, has absolutely no application to the facts of the present case. True, it is observed by the Division Bench in the said case that once the transfer of management is approved by the 8 W.A.No.1532 of 2022 educational authorities, the previous Manager cannot meddle with the management of the school. As rightly noticed by the learned Single Judge, **Sudheer** was a case where, after settling the entire rights over the school by the individual educational agency with his wife and children, the individual educational agency, who was the previous Manager of the school also, executed a will conferring the right of managership of the school to third party. The observation aforesaid has been made in the said context. 8. Coming to the argument advanced by the learned counsel for the petitioner that the Government ought not have restored Exts.P9 and P10 orders in terms of Ext.P17 order which is impugned in the writ petition, we are of the view that the same may not have any consequence at all, insofar as those orders have been stayed by this Court immediately after the issuance of Ext.P17 order and the petitioner was functioning as the Manager until Ext.P17 order was passed by the Government, for the acts performed by the petitioner from 07.02.2020 till 29.08.2022 as the Manager of the School would 9 W.A.No.1532 of 2022 be saved by _de facto_ doctrine. In the said view of the matter, there is no merit in the writ appeal and the same is, accordingly, dismissed. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **C.S.SUDHA, JUDGE.** YKB