Sathjith V. H. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR** **WEDNESDAY, THE 29TH SEPTEMBER 2010 / 7TH ASWINA 1932** **WP(C).No. 17835 of 2010(D)** **----------------------------------------PETITIONER(S):** **-------------------------** **SATHJITH.V.H., S/O.HARIDAS, AGED 48 YEARS, RESIDING AT `SURYA HARI' KURUMANDAL, PARAVUR, KOLLAM DISTRICT NOW WORKING AS MANAGER, S.N.V.HIGH SCHOOL FOR GIRLS, PARAVUR, KOLLAM DISTRICT.** **BY ADVS. SRI.R.S.KALKURA, SRI.HARISH GOPINATH.** **RESPONDENT(S):** **---------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM.** **2. THE ADDITIONAL SECRETARY TO THE GOVERNMENT GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **3. THE DIRECTOR OF PUBLIC INSTRUCTIONS,THIRUVANANTHAPURAM.** **4. THE DISTRICT EDUCATIONAL OFFICER, KOLLAM.** **5. S.SHAJU, RETURNING OFFICER, PARAVOOR S.N.V.SAMAJAM ELECTION, RAJASADANAM BUILDING, WEST OF COLLECTORATE,KOLLAM.** **6. B.JAYARAJAN, RESIDING AT MUNDUTHALAKKAL, KOTTAPPURAM, PARAVOOR P.O., KOLLAM.** **7. N.RAVEENDRDAN, SECRETARY, PARAVUR S.N.V.SAMAJAM, RESIDING AT MAVILA, KOTTAPPURAM, PARAVOOR P.O., KOLLAM.** ## **R1TO R4 BY GOVERNMENT PLEADER SRI. DILIP MOHAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/06/2010, THE COURT ON 29/09/2010 DELIVERED THE FOLLOWING:** **Kss** ## **C.T. RAVIKUMAR, J.** ## **-------------------------------------------W.P.(C). NO.17835 OF 2010** ## **--------------------------------------------** Dated this the 29[th] day of September, 2010 ## **JUDGMENT** This Writ Petition, pertaining to the managerial dispute of Paravoor S.N.V.High School for girls, has been filed mainly challenging Ext.P16 order passed by the Government. At the outset, I may state that this Court cannot make any finding with respect to the validity of the election of the office bearers of the Managing Committee of the trust in this proceedings. However, the contentions of the petitioner touching the said aspect are adverted to only for the purpose of deciding whether Ext.P16 order calls for interference or not. The contention of the petitioner is that the management and administration of S.N.V.Samajam, which is a trust, is being carried out as per the provisions of Ext.P1 scheme prepared by the Subordinate Judge's Court, Kollam in O.S.No.783/1994 on 31.7.2002. Going by the provisions of Ext.P1 scheme, the management and administration of the trust is vested with the Managing Committee of 21 members. The Managing Committee members are to be elected to the office by the general body consisting of members of the Samajam. From **W.P.(C) NO.17835/2010** 2 among the members of the Managing Committee, five members are to be elected to constitute an Executive Committee/office bearers of the trust. The contention of the petitioner is that the Returning Officer appointed to conduct election to the Managing Committee members has to conduct the election of the five member Executive Committee as well and the managing committee and the executive committee members have to assume charge under the supervision of the said Returning Officer. The further contention is that in terms of Ext.P1, an election was conducted on 10.5.2003. 21 members were elected as the members of the Managing Committee and five among them were elected as office bearers of Executive Committee. The petitioner was elected as the managing committee member and thereafter, as the President of the trust and the 7[th] respondent was elected as a managing committee member and thereafter, as the Secretary of the trust. The term of office of the Managing Committee as also the office bearers in terms of Ext.P1, is five years extendable by one more year. The period of the committee that was voted to power on 10.5.2003 was to expire on 9.5.2008. The extended period was to expire one year from 9.5.2008. Therefore, in terms of Ext.P1 **W.P.(C) NO.17835/2010** 3 scheme, the fifth respondent was appointed as the Returning Officer for holding election to the trust for the year 2009. Consequently, the fifth respondent published Ext.P2 notification fixing the date of election as 19.4.2009. The election was held on the said date with police protection. The results of the election was declared on 20.4.2009. Ext.P3 is the list of persons who were elected to the office of the Managing Committee. Thereupon, the fifth respondent issued a notice calling for the meeting of the Managing Committee to be held on 25.4.2009. Pursuant to the publication of the said notice proposing to conduct a meeting to elect the office bearers of the managing committee, I.A.Nos.1480 and 1481 of 2009 were filed in O.S.No.783/1994. In fact, the same were filed by the petitioner and certain others who are the members of the newly elected Managing Committee for setting aside the elections and directing re-poll or in the alternative to set aside the result of the election declared by the fifth respondent and recounting of votes under the supervision of the court. According to the petitioner, the reason for assailing said election is that all the office bearers were elected to office only on a small margin viz., between 1 to 10 votes and there was a lot of illegal counting of votes. The **W.P.(C) NO.17835/2010** 4 prayer in I.A.No.1480/2009 was to prohibit the respondents therein from assuming office till the final disposal of the main petition. Ext.P4 interim order restraining the respondents therein from assuming charge, was initially passed in the said I.A. The further contention of the petitioner is that later, I.A.No.1482 and 1483 of 2009 were also filed in the said original suit with prayers to restrain the newly elected Managing Committee from assuming charge and to set aside the election. Ext.P4 would reveal that, in fact, it is a common order restraining assumption of charge of office bearers passed in all the said interlocutory applications. However, later, the same was modified and against such modification, a Writ Petition as well as a first appeal were filed before this Court. Despite the pendency of the said inter locutory applications, the Writ Petition and the first appeal, a meeting was convened by the returning officer for election of the office bearers of the samajam on 25.4.2009, it is contended. The same was adjourned on court orders and on getting vacated the order restraining convening of such meeting, it was again decided to be held on 16.5.2009. The petitioner contended that even on that date, no meeting could be convened. Ext.P5 application was thereafter filed by the sixth **W.P.(C) NO.17835/2010** 5 respondent and some others for a direction for conducting the election of office bearers. Ext.P5 application was posted for hearing on 3.6.2009. However, on that day, the said I.A was withdrawn by the petitioners therein on the ground that the meeting was convened and election of office bearers to the Samajam was held on 30.5.2009. Thereupon, the petitioner has filed I.A.No.1908/2009 in O.S.No.783/1994 with the prayer to declare that the election of office bearers to the managing committee was conducted in violation of article 22 (8) of Ext.P1 scheme. Another I.A viz., I.A.No.1941/2009 was also filed by some other persons with a prayer to restrain the office bearers from taking charge as office bearers of the trust till the managing committee meeting is held and office bearers are elected in the presence of the Returning Officer as directed under the scheme. Both the said Interlocutory Applications were posted for hearing. The fifth respondent herein has filed an objection to the Interlocutory Applications stating that election to the office bearers of the Samajam had not taken place. In the meanwhile, the sixth respondent filed an application before the fourth respondent claiming that he was elected to the post of President of the Samajam and by virtue of the same, he is **W.P.(C) NO.17835/2010** 6 entitled to be declared as the Manager of the said school. However, the said application was rejected by the fourth respondent as per Ext.P8. Feeling aggrieved by Ext.P8 order, the sixth respondent preferred an appeal before the third respondent. During the pendency of the said appeal, the third respondent directed the fifth respondent to convene a meeting of the elected members on 10.2.2010 and to complete the election in terms of clause 22(8) of Ext.P1 scheme. On receipt of the same, the fifth respondent replied to the third respondent that he had sought permission of the court for conducting a meeting and was awaiting of orders. Subsequently, the third respondent passed Ext.P11 order directing the parties to approach the civil court to redress the grievances in case they are aggrieved. Aggrieved by Ext.P11, the sixth respondent filed an appeal before the first respondent. Ext.P12 notice was served on the petitioner in the said appeal and a hearing was scheduled to be conducted on 19.4.2010. Ext.P13 objection was filed therein by the fifth respondent making it clear that election to the office bearers of the samajam was not taken place till date. The petitioner has also filed detailed hearing notes, as is obvious from Exts.P14 and P15. Ignoring such objections, Ext.P16 order was **W.P.(C) NO.17835/2010** 7 passed by the first respondent approving the appointment of the fifth respondent as the Manager of the school. It is with the aforesaid allegations and raising grievances against Ext.P16 that this Writ Petition has been filed. 2. The narration of facts, as above, would undoubtedly show that disputatious facts involve in this case. It appears that there is factional fight for the management of the trust. At the same time, certain indisputable facts also involve in this Writ Petition. The President of the Managing Committee has to function as the Manager of SNV High School for Girls, Paravoor. The election to the Managing Committee was conducted on 19.4.2009. Ext.P3 is the list of members who were elected to the office of the Managing Committee and the names of the petitioner and also the sixth respondent figure therein. Ext.P7 application was submitted before the fourth respondent by the sixth respondent claiming that on 30.5.2009 election to the office bearers of the trust was held and he was elected as the President of the Samajam. The petitioner and certain others have already filed Interlocutory Applications in O.S.No.783/1994 before the Sub Court, Kollam challenging the validity of the election to the **W.P.(C) NO.17835/2010** 8 Executive Committee held on 30.5.2009. As noticed earlier, there is no dispute with respect to the fact that the President of the samajam is to hold the post of Manager of the said school. In the context of the contentions, ground (f) in the Writ Petition assumes relevance . It reads thus:- “The first respondent ought to have considered that the genuineness of Ext.P6 minutes dated 30.5.2009 is under challenge before the Sub Court, Kollam and the matter is sub-judice the 1[st] respondent ought not have expressed his opinion on the genuineness of the so called minutes and ought not have accepted the same while passing Ext.P16 order.” 3. A scanning of the said ground would reveal that the question of genuineness of Ext P6 minutes dated 30.5.2009 is under challenge before the Sub Court, Kollam. However, the contention of the petitioner is that the first respondent ought not have expressed his opinion on the genuineness of the said minutes and not to have accepted the same while passing Ext.P16 order. 4. Managerial disputes may involve complicated questions of facts and law. However, when an application for change of management is **W.P.(C) NO.17835/2010** 9 received by a competent authority that authority cannot disuse its power on the ground of involvement of complicated questions of facts and law and that authority is duty bound to decide the question for the limited purpose of the Kerala Education Act and the Rules. At any rate, before deferring a decision on such application on account of complexity of the issues that authority is bound to ensure that such deferment would not create vaccum in the management of the school. Even in case of a managerial dispute, it is always better to have a person elected, though such election is under challenge, to function as the Manager subject to such challenge, for the limited purpose of the Act and the Rules and as far as possible, granting of temporary change of manager to educational officers should be avoided. Such decision would not decide the civil right and would only be subject to the decision by the competent civil court. Absence of someone in the post of Manager could ultimately affect the students and the very institution itself. 5. With the above prelude, I may examine the challenge against Ext.P16. A perusal of Ext.P16 would reveal that the decision of this Court reported in Mohammed Sheriff v. State of Kerala ( **1986 KLT 57)** was **W.P.(C) NO.17835/2010** 10 taken into consideration by the first respondent. It was held thereunder that by virtue of the provision in the scheme regarding the term of office of the Managing Committee, the petitioner who was elected on 10.5.2003 could not continue as its Manager. That apart, it is an admitted fact that the election was subsequently conducted on 19.4.2009. Ext.P3 would undoubtedly show that the petitioner as also the sixth respondent were duly elected as the managing committee members. In fact, 21 members were elected to the Managing Committee of the trust as per Ext.P3. The question is whether the election of office bearers was duly conducted and whether the sixth respondent was elected as President of the trust. True that when the validity of the election is said to have held on 30.5.2009, is under challenge before the Sub Court, kollam, in O.S.No.783/2009. Ext.P6 minutes dated 30.5.2009 is produced therein and that is under challenge. When validity of an election is under question before competent civil court, any observation by the first respondent with respect to the sanctity, legality or validity of the said election cannot and will not make it an absolute recognition of the civil right. The contention of the petitioner is that the first respondent should not have decided the legality **W.P.(C) NO.17835/2010** 11 of the said election and declared the sixth respondent as duly elected president of the Samajam. There cannot be any doubt at all that the first respondent is absolutely lacking any jurisdiction to declare the said election of the sixth respondent as valid. Therefore, the findings and observations made in Ext.P16 touching the election, even if fell beyond the real jurisdiction, can only be taken and treated as observations and conclusions arrived at solely for the purpose of deciding the question for the purpose of the Act and the Rules ie., only to decide whether at present the sixth respondent could be approved as the manager of the school especially taking into account the decision of this court reported in **1986 KLT 57(supra).** Findings of the first respondent cannot have any other impact or adverse effect. In other words, the decision in Ext.P16 will invariably be subject to the civil proceedings now pending before the Sub Court, Kollam. In the circumstances, I am not inclined to interfere with Ext.P16, because such interference would render the school without a person in the post of manager. Considering the fact that the extended period permissible under Ext.P1 scheme had expired in respect of committee and office bearers, who were elected on 10.5.2003 including the **W.P.(C) NO.17835/2010** 12 petitioner, the petitioner cannot legally claim for continuance in the post of Manager. It is made clear that the approval of appointment of the sixth respondent as the Manager of the S.N.V.High School for girls,Paravoor, as per Ext.P16 will be subject to the decision by the Sub Court, Kollam in O.S.783/1994, the Writ Petition and the First Appeal said to have filed from orders in the said Original Suit. Subject to the above observations, this Writ Petition is dismissed. **(C.T. RAVIKUMAR, JUDGE)** **spc** **W.P.(C) NO.17835/2010** 13 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **W.P.(C) NO.17835/2010** 14