Saritha K.R. v. State of Kerala and Others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 10[TH]DAY OF OCTOBER 2022 / 18TH ASWINA,1944 ``` ``` WP(C) NO. 28940 OF 2022 ``` ## `PETITIONER/S:` ``` SARITHA K.R. W/O UDAYABHANU M. KEDARAM, PERUVATHOOR P.O., KOYILANDI, KOZHIKODE - 673 620. BY ADVS. S.M.PREM P.RAMACHANDRAN (PALAKKAD) H.NARAYANAN ``` ## `RESPONDENT/S:` ``` 1STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2THE DIRECTOR OF GENERAL EDUCATION, JAGATHY, THYCAUD P.O., THIRUVANANTHAPURAM - 695 014. 3THE DISTRICT EDUCATIONAL OFFICER, VATAKARA, KOZHIKODE - 673 101. 4THE ASSISTANT EDUCATIONAL OFFICER, MELADI, PAYOLLI, KOZHIKODE - 673 522. 5SRI. RAGHAVAN K., HARITHA, NAMBRATHKARA, NADUVATHOOR, KOYILANDI - 673 330. BY ADVS. S.ABHILASH ANJANA KANNATH K.SIJU T.S.SREEKUTTY RENUKA VENU FATHIMA MOHAN ``` W.P. (C) No.28940 of 2022 2 ``` SMT.MARY BEENA JOSEPH, SR GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.P. (C) No.28940 of 2022 ## **JUDGMENT** The Nambrathkara U.P School is an aided school governed by the provisions of the Kerala Education Act and the Rules framed thereunder. In the year 1990, a document was registered as Will No.43/1990. As per the document, Smt.Kadoth Paru, the mother of the 5th respondent, executed a Will in his favour bequeathing the school and the property in his name. The 5th respondent became the owner and Manager of the school, and he has been continuing as the Manager even during the lifetime of his mother. 2. The petitioner herein is the daughter of the 5th respondent. She was working as a Needle Work Teacher in the Nambrathkara U.P School. While the relationship between the petitioner and her father was cordial, on 14.10.2005, a request under Rule 5A of Chapter III of the KER was submitted before the 3rd respondent seeking transfer of management without involving the transfer of ownership. The petitioner as well as the 5th respondent had filed separate representations before the 1st respondent seeking exemption from Rule 8 Chapter III of the KER. On the basis of the recommendations given by the 4th respondent which was seconded by the Deputy Director, Ext.P7 order dated 28.07.2007 was issued by the Government granting exemption to Rule 8(1) in Chapter III of KER in favour of the petitioner to 4 W.P. (C) No.28940 of 2022 enable her to function as Manager of the school. 3. While functioning as Manager, the petitioner attained superannuation on 31.05.2020. However, she has been continuing as the approved Manager on the strength of the earlier order. 4. According to the petitioner, her elder brother, who was in Government service earlier, prevailed upon the 5th respondent and persuaded him to issue Ext.P8 letter dated 13.05.2018 seeking to cancel the approval as Manager granted to the petitioner and on the strength of the same, Ext.P9 order dated 31.01.2020 was issued by the Government cancelling Ext.P7 order. Immediately thereafter, on 06.02.2020, the 4th respondent issued Ext.P10 order appointing the 5th respondent as the new Manager. 5. According to the petitioner, Exts.P9 and P10 orders were issued disregarding Ext.P11 report submitted by the 2nd respondent before the Government, wherein it has been clearly stated that the health condition of the 5th respondent was not very good; that the petitioner had been functioning as the Manager in a credible manner and there was no reason to displace her. 6. The petitioner challenged Exts.P9 and P10 orders before this Court and finally by Ext.P14 judgment, this Court taking note of the fact that, 5 W.P. (C) No.28940 of 2022 before issuing the said order, no opportunity had been granted to the petitioner, quashed the impugned orders and directed the 1st respondent to reconsider the matter with notice to all sides. 7. In terms of the directions so issued by this Court, the 1st respondent has issued Ext.P17 order, restoring Exts.P9 and P10 orders which were earlier quashed by this Court. According to the petitioner, Ext.P17 cannot be sustained under law. It is in the afore circumstances, that this writ petition is filed seeking the following reliefs: (i) issue a writ of certiorari or such other writ, direction or order quashing Exhibit P17 arbitrary, illegal and unconstitutional. 8. In the counter affidavit filed by the 5th respondent, it is stated that the 5th respondent is the owner of the school and its properties, and the same was bequeathed upon him by his mother. Though it is admitted that the 5th respondent had submitted Ext.P1 request for change of management, it is submitted that no consequential orders were issued by the 4th respondent appointing the petitioner as the Manager. Relying on Exts.R5(a) and R5(b) information obtained under the Right to Information Act, it is submitted that no orders have been issued by the Educational Authorities granting approval to the managership of the petitioner herein. According to the 5th respondent, 6 W.P. (C) No.28940 of 2022 even prior to the petitioner attaining superannuation, he had submitted Ext.P8 request on 13.05.2018 in his capacity as the owner and proprietor of the school and the property, and informing that he has taken the decision to withdraw the permission granted to the petitioner to function as Manager of the school so that he would take over the management. It is further stated that the 5th respondent has taken charge as the Manager of Nambrathinkara UP School with effect from 06.02.2020 and has also appointed his son K.R Ajith as the correspondent of the School and stating these aspects, Ext.R5(e) letter has been submitted before the 4th respondent. Though Exts.P9 and P10 were quashed on technical grounds, this Court had directed the 1st respondent to reconsider the matter with notice and consequent to the same, Ext.P17 order has been issued permitting the 5th respondent to act as Manager of the school. 9. Sri.S.M.Prem, the learned counsel appearing for the petitioner, submitted that Ext.P17 order issued by the 1st respondent is clearly contrary to the law laid down by this Court in **Sudheer T v. M.V.Susheela and Others** (2011 (1) KLT 1084). According to the learned counsel, after having submitted Exts.P2 and P4, the 5th respondent would not retain any right to cancel the appointment of the petitioner as Manager of the institution. According to the learned counsel, Ext.P7 order granting exemption under Rule 7 W.P. (C) No.28940 of 2022 8(1) of Chapter III has been in force till 31.5.2020, on which day the petitioner retired from service as Needle Work Teacher. It is further submitted that Ext.P17 cannot be sustained as a perusal of the said order would reveal that the 1st respondent has restored Exts.P9 and P10 orders, which were quashed by this Court. 10. Sri.Abhilash, the learned counsel appearing for the 5th respondent, while opposing the submissions, submitted that the petitioner has not been able to produce any orders issued by the Educational Authorities approving the appointment of the petitioner as Manager of the institution issued under Rule 5 of Chapter III. The mere grant of exemption to act as Manager would not confer any right upon the petitioner, contends the learned counsel. It is submitted that undisputably, the 5th respondent is the owner of the school and he retains all rights to act in the best interest of the school. It is urged that Ext.P14 was rendered by this Court on the sole ground that the petitioner was not heard before orders were issued. Ext.P17 order has been issued after hearing the petitioner as well and therefore there is no reason to unsettle the same. Finally, it is submitted that the precedents relied on by the learned counsel have no application in the facts and circumstances. 11. The learned Government Pleader would refer to Chapter III and 8 W.P. (C) No.28940 of 2022 it is submitted that it cannot be disputed that the 5th respondent is the educational agency as the title and ownership is vested with him. In the case on hand, an application was filed under Rule 4 and 5 and the 1st respondent has taken a decision after considering all aspects. No interference is warranted is the submission. 12. I have carefully considered the submissions advanced and have perused the entire records. 13. There is no dispute with regard to the fact that the 5th respondent, who is the father of the petitioner herein, retains ownership of the school and the property on which the school is situated. While the petitioner was working as a Needle Teacher, an application was filed seeking exemption under Section 8 and the same was granted. Ext.P7 is the order granting exemption under Rule 8(1). Though no orders have been produced before this Court to substantiate that, approval was granted to the petitioner to act as Manager. Ext.P8 request submitted by the 5th respondent would reveal that he was in fact acting as the Manager. In other words, the fact that management was transferred without change of ownership will be borne out from Ext.P8. After the retirement of the petitioner, the 5th respondent had a change of mind and he has decided to take over the management by 9 W.P. (C) No.28940 of 2022 himself. This application has been considered and the same has resulted in the issuance of Ext.P17 order. I find on a reading of Ext.P17 that all relevant aspects were considered by the 1st respondent while issuing Ext.P17. 14. In order to assail Ext.P17, the only contention advanced by Sri.S.M.Prem is that the said order runs counter to the law laid down by this Court in **Sudheer** (supra). I am afraid I cannot accept the submission of the learned counsel. In **Sudheer** (supra), the founder had executed a gift deed, gifting the entire properties including the land in which the school buildings are constructed in favor of his wife and two minor sons. His wife had later executed a release deed releasing her rights in favour of two sons. Later, a partition deed was executed by the two sons as per which the land, school buildings, and improvements were assigned to one Balakrishnan, the elder son of Sri.Appukutty. Even during the lifetime of Appukkutty, Sri.Balakrishnan was made the Manager of the school and the same had been approved by the educational authorities. He had continued as such for about 20 years. After his death, the wife of Balakrishnan applied for appointing her as the Manager. Late Balakrishnan’s brother’s son also had applied for appointing him as the Manager. While the disputes were pending before the courts, the Government handed over the management of the school to Late Sri.Balakrishnan’s brother’s son. A learned Single Judge of this Court after considering the rival 10 W.P. (C) No.28940 of 2022 claims had directed the AEO to take over management of the school until the Civil Court decides the dispute. The Division Bench of this Court took note of the fact that the land and school buildings remained in the name of Sri.Balakrishnan and his father Appukutty and that Appukkutty had permitted transfer of management from himself to his son Sri.Balakrishnan during his lifetime. Sri. Balakrishnan’s brother’s son claimed managership based on a Will executed by his grandfather. This Court noted that Sri.Appukutty had executed two or three Wills, the last of which was executed in 1984 wherein it is stated that the management of the school should go to his son Balakrishnan and thereafter to his other son’s son. The question before the Division Bench was whether there was any significance or relevance in the wish of Sri.Appukkutty expressed in the Will that after the death of Sri.Balakrishnan, his other son’s son should become the Manager. This Court in the facts and circumstances held that once there is a transfer of management approved by the educational authorities in terms of Rule 5 or 5A of Chapter III of KER, then the previous Manager retains no right to be bequeathed. It was further held that the Will having been executed by Sri.Appukkutty during his lifetime in 1984, the provision made in the Will regarding succession of management of the school is ineffective and inoperative as the management has already been transferred to his son 11 W.P. (C) No.28940 of 2022 during his lifetime and that too with his approval. Holding so, this Court took the view that the directions issued by the Government that the widow of Balakrishnan is required to file a civil suit to get her claims settled is misconceived. The fact that the land and school building were properties of Sri. Balakrishnan, was also taken note of. In the case on hand, the 5th respondent retains the ownership of the property and is well within his rights to file an application for change of management. It was after considering all the relevant aspects that his request was granted by Ext.P17 order. In that view of the matter, I find absolutely no reason to interfere with the said order. This writ petition will stand dismissed. There will be no order as to costs. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** Sru 12 W.P. (C) No.28940 of 2022 ## `APPENDIX OF WP(C) 28940/2022` ``` PETITIONER’S EXHIBITS ``` |`Exhibit P1`|`TRUE COPY OF THE REQUEST OF 5TH RESPONDENT`| |---|---| ||`DATED 14-10-2005 SUBMITTED TO THE 4TH`| ||`RESPONDENT FOR TRANSFER OF MANAGEMENT OF`| ||`NAMBRATHKARA U.P. SCHOOL IN THE NAME OF THE`| ||`PETITIONER.`| |`Exhibit P2`|`TRUE COPY OF THE APPLICATION FOR TRANSFER OF`| ||`MANAGEMENT WITHOUT INVOLVING CHANGE OF`| ||`OWNERSHIP, DATED 14-10-2005 SIGNED BY THE`| ||`PETITIONER AS WELL AS THE 5TH RESPONDENT.`| |`Exhibit P3`|`TRUE COPY OF THE REPRESENTATION DATED`| ||`26-10-2005 SUBMITTED BY THE PETITIONER BEFORE`| ||`THE GOVERNMENT.`| |`Exhibit P4`|`TRUE COPY OF THE REPRESENTATION DATED`| ||`26-10-2005 SUBMITTED BY THE 5TH RESPONDENT TO`| ||`THE 1ST RESPONDENT.`| |`Exhibit P5`|`TRUE COPY OF REQUEST DATED 30-12-2006 MADE BY`| ||`THE 5 TH RESPONDENT TO THE 4TH RESPONDENT.`| |`Exhibit P6`|`TRUE COPY OF THE RECOMMENDATION LETTER NO.`| ||`D-4853/05 DATED 28-10-2005 SENT BY THE 4`| ||`RESPONDENT - AEO TO THE DEPUTY DIRECTOR OF`| ||`EDUCATION, KOZHIKODE.`| |`Exhibit P7`|`TRUE COPY OF GO.(RT) NO.3492/2007/G.EDN. DATED`| ||`28-07-2007.`| |`Exhibit P8`|`TRUE COPY OF THE TYPEWRITTEN LETTER DATED`| ||`13-05-2018 SUBMITTED IN THE NAME OF THE 5TH`| ||`RESPONDENT TO THE 4TH RESPONDENT.`| |`Exhibit P9`|`TRUE COPY OF GO.(RT) NO.572/2020/G.EDN. DATED`| ||`31-01-2020 ISSUED BY THE GOVERNMENT CANCELLING`| ||`EXHIBIT P7 ORDER.`| 13 W.P. (C) No.28940 of 2022 |`Exhibit P10`|`TRUE COPY OF ORDER NO. K.DIS.D-1713/2018 DATED`| |---|---| ||`06-02-2020 ISSUED BY THE 4TH RESPONDENT - AEO`| ||`APPOINTING THE 5TH RESPONDENT AS THE NEW`| ||`MANAGER.`| |`Exhibit P11`|`TRUE COPY OF REPORT NO.G3/82371/2018/DGE DATED`| ||`31-08-2019 SUBMITTED BY THE 2ND RESPONDENT TO`| ||`THE GOVERNMENT.`| |`Exhibit P12`|`TRUE COPY OF THE ORDER DATED 07-02-2020 PASSED`| ||`IN W.P. (C) NO. 3513 OF 2020.`| |`Exhibit P13`|`TRUE COPY OF THE ORDER DATED 06-03-2020 PASSED`| ||`IN W.P. (C) 3513 OF 2020.`| |`Exhibit P14`|`TRUE COPY OF THE JUDGMENT DATED 22-03-2022`| ||`PASSED IN W.P. (C) NO. 3513 OF 2020.`| |`Exhibit P15`|`TRUE COPY OF NOTICE NO.GEDN-F2/103/2020-G.EDN`| ||`DATED 30-05-2022 RECEIVED BY THE PETITIONER.`| |`Exhibit P16`|`TRUE COPY OF THE WRITTEN SUBMISSION MADE BY THE`| ||`PETITIONER AND UPLOADED FOR THE HEARING ON`| ||`10-06-2022.`| |`Exhibit P17`|`TRUE COPY OF G.O.(RT) NO.5195/2022/G.EDN. DATED`| ||`29-08-2022.`| |`RESPONDENTS EXHIBITS`|| |`Exhibit R5(a)`|`A TRUE COPY OF THE APPLICATION SUBMITTED UNDER`| ||`RIGHT TO INFORMATION ACT TO THE PUBLIC`| ||`INFORMATION OFFICER ATTACHED TO 4TH RESPONDENT.`| |`Exhibit R5(b)`|`A TRUE COPY OF THE REPLY SUBMITTED BY THE`| ||`PUBLIC INFORMATION OFFICER ON 10/12/2021.`| |`Exhibit R5(c)`|`A TRUE COPY OF THE APPEAL SUBMITTED TO THE`| ||`APPELLATE AUTHORITY UNDER RIGHT TO INFORMATION`| ||`ACT.`| |`Exhibit R5(d)`|`A TRUE COPY OF REPLY ISSUED BY THE APPELLATE`| 14 W.P. (C) No.28940 of 2022 ``` AUTHORITY TO EXT.R5(C). ``` ``` Exhibit R5(e)A TRUE COPY OF THE LETTER SUBMITTED TO THE 4TH RESPONDENT DATED 06/02/2020. Exhibit R5(f)A TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY ME THROUGH MY COUNSEL. Exhibit R5(g)A TRUE COPY OF THE LETTER DATED 31/08/2022 SUBMITTED TO THE 4TH RESPONDENT. Exhibit R5(h)A TRUE COPY OF THE COMMUNICATION ISSUED TO THE HEADMISTRESS ON 31/08/2022. ```