Sathjith V.H v. State of Kerala and others

1 W.A.No.1427 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ## **`&`** ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` WEDNESDAY, THE 16[TH] DAY OF AUGUST 2023 / 25TH SRAVANA, 1945 ``` ``` W.A.NO.1427 OF 2023 ``` ``` AGAINST THE JUDGMENT DATED 14.07.2023 IN WP(C)NO.36780 OF ``` ``` 2010 OF THE HIGH COURT OF KERALA ``` ## **`APPELLANT/PETITIONER:`** ``` SATHJITH V.H, AGED 61 YEARS, S/O HARIDAS, RESIDING AT SURYAHARI, KURUMANDAL, PARAVUR P.O., KOLLAM-691 301 ``` ``` BY ADV HARISH GOPINATH ``` ## **`RESPONDENTS/RESPONDENTS:`** |**`1`**|**`STATE OF KERALA, REPRESENTED BY SECRETARY GENERAL`**| |---|---| ||**`EDUCATION SECRETARIAT, TRIVANDRUM., PIN – 695001`**| |**`2`**|**`DISTRICT EDUCATIONAL OFFICER,`**| ||**`KOLLAM, PIN – 691013`**| |**`3`**|**`DEPUTY TAHSILDAR RR, KOLLAM, PIN – 691013`**| |**`4`**|**`ASSISTANT EDUCATIONAL OFFICER,`**| ||**`KOLLAM, PIN – 691013`**| |**`5`**|**`V.JAYARAJAN, RESIDING AT MUNDUTHALAKKAL,`**| ||**`KOTTAPPURAM, PRAVOOR.P.O., KOLLAM, PIN – 691301`**| |**`6`**|**`MANAGER, SNV GIRLS HIGH SCHOOL, PARAVUR, PARAVUR`**| ||**`PO, KOLLAM, PIN – 691301`**| ||**`SRI T.K. SHAJAHAN- SR GOVERNMENT PLEADER ;`**| ||**`SRI B.SURESH KUMAR - FOR R5 AND R6`**| ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 W.A.No.1427 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellant was the Manager of S.N.V. Girls High School, Paravur, an aided school under the management of S.N.V. Samajam, which is governed by Ext.P1 scheme framed by the Sub Court, Kollam in O.S.No.783 of 1994. As per Clause 10(6) of the said scheme, the President of the Samajam is the Manager of the school. The petitioner, who was elected as the President of the Samajam, was the approved Manager of the school for a period of 5 years, till 09.05.2009. 2. The appellant filed W.P.(C)No.36780 of 2010 before this Court, invoking the writ jurisdiction under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P2 demand notice No.D4-4359/2010 issued by the 3[rd] respondent Deputy Tahsildar (RR), Kollam, whereby he was directed to pay a sum of Rs.74,542/- together with collection charges, based on Requisition No.B5-1227 of the 2[nd] respondent District Educational Officer, Kollam. The petitioner has also sought for a writ of mandamus commanding the respondents to consider and pass orders on Ext.P4 objection dated 25.06.2010 made against the demand made in Ext.P2 demand notice. Ext.P3 is a communication 3 W.A.No.1427 of 2023 dated 08.01.2010 of the 1[st] respondent State-Secretary to Government, General Education Department, addressed to the 2[nd] respondent District Educational Officer, whereby the 2[nd] respondent was directed to recover an amount of Rs.74,542/from the Manager of S.N.V. Girls High School, Paravur under the provisions of the Revenue Recovery Act, in accordance with Rule 7(4) of Chapter III of the Kerala Education Rules, 1959. At the time of issuance of Ext.P2 demand notice, the 5[th] respondent - J. Jayarajan–was the Manager of S.N.V. Girls High School, Paravur. In the writ petition, the petitioner contended that, since the school is under the corporate management of S.N.V. Samajam and the President of the Samajam is being appointed as the Manager of the school as per the provisions under Ext.P1 scheme, subject to approval by the Education Department, the amount sought to be recovered in Ext.P2 demand notice has to be recovered from the educational agency-S.N.V. Samajam, through the 5[th] respondent Manager. 3. The demand made in Ext.P2 demand notice for a sum of Rs.74,542/- is towards the loss sustained by the Government on account of keeping Smt.G. Shobha, a Music Teacher in S.N.V. Girls High School, Paravur under suspension for the period from 4 W.A.No.1427 of 2023 21.08.2006 to 28.04.2007. The order of suspension issued by the petitioner, who was the then Manager of the school, was found to be illegal and the teacher had to be paid Rs.74,552/- towards her salary for the period during which she was kept out of service by the appellant. Based on the directions contained in Ext.P3 communication dated 08.01.2020 of the 1[st] respondent, the 2[nd] respondent District Educational Officer made a requisition for revenue recovery before the 3[rd] respondent Deputy Tahsildar (RR). Based on the said requisition, the 3[rd] respondent issued Ext.P2 demand notice. 4. On 09.12.2010, when the writ petition came up for admission, it was admitted on file and issued notice to the respondents. The learned Single Judge granted an interim order dated 09.12.2010, which reads thus; “There will be an interim stay of the proceedings pursuant to Ext.P2 in so far they are against the petitioner in person or against the personal properties of the petitioner.” 5. The 5[th] respondent, who was elected as the President of S.N.V. Samajam on 20.04.2009 and assumed the charge of the Manager of S.N.V. Girls High School, Paravur on 30.05.2009, filed a counter affidavit dated 19.02.2011, opposing the reliefs sought for in the writ petition, producing therewith Ext.R5(a) to Ext.R5(d) 5 W.A.No.1427 of 2023 documents. The learned Senior Government Pleader has filed a counter affidavit on behalf of the 1[st] respondent State. After considering the rival contentions, the learned Single Judge dismissed W.P.(C)No.36780 of 2010, by the judgment dated 14.07.2023. Paragraphs 8 to 10 and the operative portion of that judgment read thus; “8. After hearing the learned counsel on all sides, I am of the firm view that the writ petitioner is not entitled to be given any relief. It is not in dispute that the writ petitioner was the Manager at the relevant time when the teacher in question was suspended. The orders of the educational authorities directing to reinstate her were issued to the writ petitioner. It is also not in dispute that orders for reinstatement were unsuccessfully challenged up to the revisional stage. It is also not in dispute that Ext.R5(d) judgment has become final. 9. As regards the argument of the learned counsel for the petitioner that it is the educational agency that is to pay in such cases and then try to recover from the Manager, it has to be held that the said contention is expressly against the provisions of Rule 7(4) Chapter III of the KER. No one else can be held responsible other than a Manager, who was obliged to implement the directions of the educational authorities. The orders of the educational authorities read with the provisions of the KER admits of no doubt. The judgments relied on by the learned Government Pleader also crystallize the principles of law. The contentions of the 6 W.A.No.1427 of 2023 learned counsel for the petitioner that he had acted for and on behalf of the agency, that, he cannot be proceeded against personally, that his revision was pending challenging the order of the lower authorities directing reinstatement, that recovery proceedings cannot be against the Manager but against the agency and the agency, if required, can recover from the Manager, that he was not heard before quantifying the amount, are all contentions squarely covered against him by the judgment in Writ Appeal No.622 of 2022 of this Court dated 25.8.2022. In the instant case also, the provisions in the KER, in particular, Chapter III Rule 7(4) as well as Rule 67(8) of Chapter XIVA clearly show the Manager had no option but to comply with the orders of the authorities, which admittedly he did not, though he was statutorily bound to do so. In such circumstances, the recovery against the Manager from his personal assets cannot be said to be wrong in any manner. 10. In the light of the principles of law stated in the judgments above read with the provisions of the KER, there cannot be any doubt that the demand by the Government is fully justified. None of the grounds raised in the writ petition merit consideration. The provisions in the KER empower the Government to proceed against the Manager and his personal assets in case of violation of the provisions of the KER on the directions of the educational authorities. The question as to whether he can be made personally liable is no longer _res integra_ . In such circumstances, I hold that Ext.P2 demand is fully legal and the writ petition deserves dismissal and I do so. However, as a measure of indulgence, it is directed that if 7 W.A.No.1427 of 2023 the petitioner makes the payment as demanded in Ext.P2 within four weeks from today, there will not be any liability to pay interest. However, if the petitioner fails to make the payment within four weeks as aforesaid, the Government will be free to recover the amounts that are actually due from the petitioner by proceeding with the recovery proceedings already initiated.” 6. Heard the learned counsel for the appellant-petitioner, the learned Senior Government Pleader for respondents 1 to 4 and also the learned counsel for respondents 5 and 6. 7. The issue that requires consideration in this writ appeal, which was one filed invoking the provisions under Section 5 of the Kerala High Court Act, 1958 is whether any interference is warranted on the judgment dated 14.07.2023 of the learned Single Judge, whereby the challenge made in W.P.(C)No.36780 of 2010 against Ext.P2 demand notice stands rejected for the reasons stated therein. 8. The argument of the learned counsel for the appellantpetitioner is that the Manager of an aided school under the management of a corporate educational agency is only a person representing that educational agency, through whom that educational agency acts. It is the corporate educational agency, which is liable to indemnify the Government for any monetary loss 8 W.A.No.1427 of 2023 caused to the Government on account of payment of salary to the teacher, who was placed under suspension. The said liability of the corporate educational agency cannot be recovered as a personal liability of the Manager, by proceeding against his properties. 9. The learned Senior Government Pleader would submit that the reasoning of the learned Single Judge in the impugned judgment is neither arbitrary nor illegal, warranting interference in this writ appeal. In the said judgment, the learned Single Judge noticed the law laid down in the decisions on the point. The learned counsel for respondents 5 and 6 would rely on the decision of this Court in **Vedanayakom v. Government of Kerala [2014 (3) KLT 678]** . 10. Chapter III of the Kerala Education Rules, 1959 deals with the management of private schools. Rule 1 deals with the classification of private educational Institutions. As per Rule 1, private educational institutions may be classified into two categories, viz., (i) those under individual educational agency and (ii) those under corporate educational agency. Where the right to conduct the school is vested in an individual in his own right or as the legal representative of a joint family, the educational agency shall be termed 'individual educational agency', and in all other 9 W.A.No.1427 of 2023 cases the educational agency shall be termed 'corporate educational agency'. Corporate educational agency shall include cases where the right is vested in (a) two or more persons jointly with written registered agreement (b) a Board or Society or Association or Company or institution registered under a Statute or created by a Statute (c) an institution of Trust and (d) an ecclesiastical office of any religious denomination. 11. Rule 2 deals with the constitution of corporate management. As per Rule 2, in the case of institutions under corporate educational agency, the constitution of the educational agency to the extent and insofar as it relates to the management of any school must be subject to rules approved by the Director which should prescribe among other things (a) the manner in which the proprietary body shall carry out its functions relating to the management of the institutions and (b) the manner in which the managing body shall be elected or appointed, the conditions and tenure of their office and their duties and powers with respect to the management of the institution. In the case of aided schools, the manner of appointment of managers also shall be specified in the rules. Such rules shall not be against the provisions of the Kerala Education Act, the rules issued under it, or any other rules 10 W.A.No.1427 of 2023 passed by the Department or the Government. Any change made in such rules subsequently shall be subject to approval by the Director before becoming operative. 12. As per Rule 3, the management to be vested in a Manager. As per sub-rule (1) of Rule 3, the management of every aided school may be vested by the educational agency in a person who shall be referred to as the Manager and who shall be responsible to the department for the management of the institution. As per sub-rule (2) of Rule 3, in the case of aided institutions under individual management the individual proprietor may be the Manager. As per sub-rule (3) of Rule 3, in the case of aided institutions under corporate management, the proprietary body may choose the Manager in accordance with the rules in that behalf referred to in Rule 2. As per sub-rule (4) of Rule 3, the educational agency shall be bound by the acts of the Manager. 13. Rule 4 deals with approval of the appointment of Managers, Rule 5 deals with the change of management, Rule 5A deals with the change of management involving a change of ownership and Rule 6 deals with the correspondences to be carried out by the Manager. 14. Rule 7 deals with the action against the Manager or 11 W.A.No.1427 of 2023 educational agency in the event of mismanagement, etc. As per sub-rule (1) of Rule 7, in the event of mismanagement, malpractice, corruption or maladministration, gross negligence of duty, or disobedience of Departmental instruction on the part of the Manager or denial of appointment to a qualified thrown-out teacher who has a rightful claim for reappointment by virtue of his/her holding the post earlier or denial of promotion to a teacher who is a rightful claimant for promotion by the Manager or conviction of the Manager for an offence involving moral turpitude it shall be open to the Director, after giving the Manager a reasonable opportunity to show cause against the action proposed to be taken and after due enquiry, to declare him unfit to hold the office of Manager in the school or in any other aided school and to require the educational agency to appoint a suitable person as Manager. As per Note to sub-rule (1), the enquiry mentioned in this sub-rule shall not be necessary in the case of conviction for an offence involving moral turpitude by a court of law. 15. As per sub-rule (4) of Rule 7, in the case of a Manager who commits serious irregularities causing monetary loss to teachers/Government, the loss sustained by teachers/ Government shall be recoverable from the Manager under the 12 W.A.No.1427 of 2023 provisions of the Revenue Recovery Act, for the time being in force, as if it is an arrear of public revenue due on land, in the cases enumerated in clauses (a) to (d). Clause (c) deals with the case of suspension of teachers, framing cooked up and/or frivolous charges, keeping them out of service beyond fifteen days disobeying the orders of reinstatement of such incumbents passed by the Deputy Director (Education) or by the Educational officer concerned, as the case may be, after a preliminary investigation into the grounds of suspension under sub-rule (8) of Rule 67 of Chapter XIVA, depriving such incumbents of their salary for which they would have been entitled to, had they been reinstated by the Manager in compliance of the orders issued by the officer concerned. As per sub-rule (5) of Rule 7, after having effected such recovery the amount of loss sustained by the teacher concerned shall be paid to him, if not already paid. ## 16. In **Vasudevan Namboodiri v. State of Kerala [1997** **(2) KLT 529]** this Court held that sub-rule (4) of Rule 7 of Chapter III of KER mentions the contingencies when the loss occasioned by the Government can be recovered from the Manager. No other circumstances are prescribed in the Rules, enabling the Government to recover the loss suffered by the 13 W.A.No.1427 of 2023 ## Government ## 17. In **Vedanayakom v. Government of Kerala [2014** **(3) KLT 678]** this Court held that the power of the Manager under Section 12 of the Kerala Education Act read with Rule 67 of Chapter XIVA of the KER, to place a teacher under suspension in any of the contingencies enumerated in Clauses (a) to (c) of sub- rule (1) is circumscribed by the limitations contained in sub-rule (8) of Rule 67. Though the Manager has the power to place the teacher under suspension in any of those contingencies, sub-rule (8) of Rule 67 provides sufficient safeguard to the teacher against any abuse of power by the Manager. The provisions of sub-rule (8) of Rule 67, which are designed to serve a salutary purpose, should be strictly complied with if the Manager chooses to keep the teacher under suspension beyond 15 days. Once the Educational Officer, on being satisfied that there was no valid ground for the suspension of the teacher, directs the Manager to reinstate the teacher with effect from the date of suspension, in exercise of his powers under sub-rule (8) of Rule 67, the only option available to the Manager is to reinstate the teacher in service forthwith and the Manager retains absolutely no power either to extend the period of suspension or continue to keep the teacher under 14 W.A.No.1427 of 2023 ## suspension for any reason whatsoever. 18. In **Vedanayakom [2014 (3) KLT 678]** this Court noticed that going by sub-rule (8) of Rule 67 of the KER, once the Educational Officer directs the Manager to reinstate the teacher with effect from the date of suspension and the Manager refuses to do so, the teacher shall be deemed to have been on duty and it shall be then open to the Department to disburse the pay and allowances to the teacher as if he/she was not suspended and recover the amount so disbursed from the Manager. The pendency of the revision petition filed by the Manager under Rule 92 to Chapter XIVA of the KER or the order of stay granted by the Government in that revision petition staying the order of reinstatement, will not in any manner disentitle the teacher from getting the pay and allowances with effect from the date of suspension, once the revisional authority concurs with the findings of the Educational Officer that the order of suspension was without any valid reasons. Similarly, neither the pendency of a revision petition nor the order of stay granted by the revisional authority or a Court of law will absolve the Manager from the liability to reimburse to the Department the pay and allowance disbursed to the teacher for the period during which he/she was kept under 15 W.A.No.1427 of 2023 ## suspension without any valid reason. Once the order of suspension is found to be one issued without any valid reason by the Educational Authorities in exercise of their powers under sub-rule (8) of Rule 67 of Chapter XIVA of the KER and that finding is confirmed by the Government in exercise of its revisional powers under Rule 92 of the said Chapter, the Manager cannot be absolved from the liability to reimburse to the Department the pay and allowance disbursed to the teacher for the period during which he/she was kept under suspension illegally. Otherwise, it would defeat the very object of sub-rule (8) of Rule 67 of Chapter XIVA of the KER. 19. In **Vedanayakom [2014 (3) KLT 678]** , during the pendency of the writ petition the Manager died and his legal heirs were impleaded as additional petitioners 2 to 7. This Court noticed that, on principle, a legal representative continues the persona of the deceased, as held in **Janaki v. State of Kerala and others [1976 KLT 182]** and followed in **Devi and others v. State of Kerala [1977 KLT 781]** and **Khadeeja v. District Collector [2006 (2) KL 654]** . Therefore, any amount due from the Manager towards the salary and allowances paid to the Teacher for the period during which she was kept under suspension illegally, 16 W.A.No.1427 of 2023 i.e., for the period from 02.12.2002 to 31.03.2004, can be recovered from the properties of the Manager inherited by his legal heirs. 20. In **K.P. Suresh Kumar v. State of Kerala and others [2022:KER: 46970]** , a decision relied on by the learned Single Judge in the impugned judgment, the Division Bench relied on the law laid down in **Vedanayakom [2014 (3) KLT 678]** . 21. In view of the provisions under sub-rule (4) of Rule 7, in the case of a Manager who commits serious irregularities causing monetary loss to teachers/Government, the loss sustained by teachers/Government shall be recoverable from the Manager under the provisions of the Revenue Recovery Act, as if it is an arrear of public revenue due on land, in the cases enumerated in clauses (a) to (d). In view of the provisions under clause (c) of sub-rule (4) of Rule 7, in the case of suspension of a teacher, such recovery from the Manager is legally permissible for keeping him/her out of service beyond fifteen days, disobeying the orders of reinstatement of such incumbent passed by the Deputy Director (Education) or by the Educational officer concerned, as the case may be, after a preliminary investigation into the grounds of suspension under sub-rule (8) of Rule 67 of 17 W.A.No.1427 of 2023 Chapter XIVA, depriving such incumbent of his/her salary for which he/she would have been entitled to, had he/she been reinstated by the Manager in compliance of the orders issued by the officer concerned. The said provision applies with equal force in the case of an individual Manager and also the Manager appointed by a corporate educational agency. Therefore, the law laid down in **Vedanayakom [2014 (3) KLT 678]** , which was relied on by a Division Bench of this Court in **K.P. Suresh Kumar [2022:KER: 46970]** , applies with equal force in the case of the Manager appointed by a corporate educational agency, who has to be proceeded against personally for recovering the said amount. In the result, we find no reason to interfere with the impugned judgment dated 14.07.2023 of the learned Single Judge in W.P.(C)No.36780 of 2010. The writ appeal fails and the same is accordingly, dismissed. No order as to costs. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** yd