St. Francis Reading Association, Mattom v. St. Thomas Ferona Church Mattom and others (CRP 723/2013)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **THURSDAY, THE 16TH DAY OF JANUARY 2014/26TH POUSHA, 1935** **CRP.No. 723 of 2013 ()** ## **----------------------I.A.No.11142/2012 IN OS 1300/2010 of I ADDL.SUB COURT, THRISSUR ------------** ## **PETITIONERS/PETITIONERS/PLAINTIFFS :-** **---------------------------------------** **1. ST.FRANCIS READING ASSOCIATION, MATTOM THRISSUR DISTRICT REPRESENTED BY ITS SECRETARY M.M.FRANCIS S/O.LATE M.P.MATHEW, AGED 52 YEARS, RESIDING AT MULAKKAL HOUSE, P.O.NAMBAZHIKKAD, MATTOM, NAMBAZHIKKAD AMSOM, MATTOM DESOM, THALAPPILLY TALUK, ALOOR VILLAGE, THRISSUR DISTRICT AND MEMBER OF THE ST.FRANCIS READING ASSOCATION, MATTOM.** **2. JOSEPH JACOB C. AGED 48 YEARS** - **S/O.LATE C.M.JACOB, RESIDING AT CHIRAMAL HOUSE S.V.COLONY, CALICUT-6, KOZHIKODE DISTRICT KALATHILKUNNU AMSOM, AND DESOM, KOZHIKODE TALUK KOZHIKODE DISTRICT THE ELECTED MANAGER OF THE THREE SCHOOLS OF THE ST.FRANCIS READING ASSOCIATION MATTOM THRISSUR DISTRICT AND THE MEMBER OF THE ST.FRANCIS READING ASSOCATION MATTOM, THRISSUR DISTRICT-680 602.** **3. M.T.GEORGE (DIED)** **4. E.K.THOMAS AGED 51 YEARS, S/O.LATE KURIAKOSE MEMBER OF THE ST.FRANCIS READING ASSOCATION, MATTOM RESIDING AT EDAKALATHORE HOUSE MATTOM, THRISSUR DISTRICT, MATTOM AMSOM AND DESOM THALAPPILLY TALUK, ALLOOR VILLAGE, THRISSUR-680 602.** **5. K.M.JOSEPH AGED 83 YEARS, S/O.MATHU MEMBER OF THE ST.FRANCIS READING ASSOCATION, MATTOM RESIDING AT KATTOOKKARAN HOUSE, MATTOM P.O., THISSUR NAMBAZHIKKAD AMSOM AND DESOM, KANDANASSERY VILLAGE THALAPPILLY TALUK, THRISSUR DISTRICT-680 602.** **6. C.NOCHOLAS AGED 68 YEARS, S/O.MATHU MEMBER OF THE ST.FRANCIS READING ASSOCATION, MATTOM RESIDING AT CHIRAMAL HOUSE, NAMBAZHIKKAD P.O., (VIA) MATTOM, THISSUR (DT.) AMSOM & DESOM, KANDANASSERY VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT-680 602** ## **CRP.No. 723 of 2013** **7. M.O.LOUIS AGED 71 YEARS, S/O.M.THOMAS OUSEPH MEMBER OF THE ST.FRANCIS READING ASSOCATION, MATTOM RESIDING AT MULAKKAL HOUSE, EDAKKALATHOOR P.O. THRISSUR (DT.) AMSOM & DESOM, THOLOORE VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT-680 515.** **8. K.L.CHAKKORU AGED 83 YEARS, S/O.LONA** - **MEMBER OF THE ST.FRANCIS READING ASSOCATION, MATTOM RESIDING AT KAKKASSERI HOUSE, MATTOM P.O., THRISSUR (DT.) AMSOM & DESOM, ALLOORE VILLAGE, THALAPPILLY TLAUK, THRISSUR-680 602.** **9. CHAKKUNNI K.J. ALIAS JOMON AGED 53 YEARS, S/O.JOSPEH MEMBER OF THE ST.FRANCIS READING ASSOCATION, MATTOM RESIDING AT KAKKASSERIL HOUSE, MISSION QUARTERS THRISSUR (DISTRICT) AMSOM & DESOM, TRICHUR CORPORATION, THALAPPILLY TALUK, THRISSUR DISTRICT-680 602.** ## **10. T.T.MATHAPPAN (DIED)** **11. THOMAS T.M., S/O.T.T.MATHAPPAN, AGED 36/37, RESIDING AT THANIKKAL HOUSE P.O.ALOOR (VIA), KECHERY, MATTOM THRISSUR DISTRICT-680 602.** **IMPLEADING OF ADDL.12TH PLAINTIFF ALLOWED AS PER ORDER DATED** **7-9-2012 IN I.A.No.7112 OF 2013 AND AMENDMENT OF PLAINT ALLOWED AS PER THE ORDER DATED 7-9-2013 IN I.A.No.8002 OF 2013 ALL IN O.S.No.1300 OF 2010.** **12. THOMAS M.G. AGED 45 YEARS S/O.M.T.GEORGE, MALIANMAVU HOUSE, MATTOM P.O. ALOOR VILLAGE, MATTOM DESOM, THALAPPILLY TALUK THRISSUR DISTRICT-680 602.** ## **BY ADV. SRI.PHILIP ANTONY CHACKO** ## **RESPONDENT(S)/RESPONDENTS/DEFENDANTS :-** **-----------------------------------------** **1. ST.THOMAS FERONA CHURCH MATTOM MATTOM DESOM, ALOOR VILLAGE, THALAPPILLY TALUK THRISSUR DISTRICT REPRESENTED BY THE PRESENT VICAR FR.VARGHESE POOVANTHINKAL ALIAS FR.VARGHESE PALATHINKAL, THRISSUR DISTRICT-680 602.** **2. M.I.ANTO, S/O.MULAKKAL INASU, AGED 46 YEARS, MEMBER OF THE ST.FRANCIS READING ASSOCATION, MATTOM THRISSUR DISTRICT, MATTOM DESOM, ALOOR VILLAGE THALAPPILLY TALUK, THRISSUR DISTRICT-680 602.** ## **CRP.No. 723 of 2013** **3. FR.VARGHESE POOVATHINKAL ALIAS FR.VARGHESE PALATHINKAL AGED 53 YEARS, EX-OFFICIO PRESIDENT, ST.FRANCIS READING ASSOCATION, MATTOM, VICAR ST.THOMAS FERONA CHURCH, MATTOM, MATTOM P.O., TRICHUR (DT.), NOW APPOINTED AS THE MANAGER, ST.FRANCIS READING ASSOCATION, MATTOM THRISSUR-680 602.** **4. M.K.VARGHESE, AGED 47 YEARS S/O.KOCHAPPAN, MULAKKAL HOUSE, CHELUR VAKA P.O., THRISSUR DISTRIT MEMBER OF THE ST.FRANCIS READING ASSOCATION, MATTOM THRISSUR DISTRICT-680 602.** **5. THE STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY GOVERNMENT OF KERALA, SECRETARIAT THRIUVANANTHAPURAM-695 001.** **6. THE SECRETARY, GENERAL EDUCATION (F) DEPARTMENT GOVERNMENT OF KERALA, SECRETARIAT THRIUVANANTHAPURAM-695 001** **7. THE DIRECTOR OF PUBLIC INSTRUCTION DPI'S OFFICE, THIRUVANANTHAPURAM-695 001.** **8. THE DEPUTY DIRECTOR OF EDUCATION, TRICHUR, THRISSUR-680 001.** **9. THE DISTRICT EUDUCATIONAL OFFICER CHAVAKKAD, THRISSUR-680 001.** **10. THE DISTRICT REGISTRAR (GENERAL ) DISTRICT REGISTRAR OFFICE, THRISSUR-26.** **11. C.F.DAVIS, AGED 53 YEARS, S/O.FRANCIS MEMBER OF THE ST.FRANCIS READING ASSOCATION, MATTOM PERMANENT ADDRESS CHIRMAL, EDAN, P.O.MATTOM THRSSUR-680 602, NOW WORKING AND RESIDING AT E.M.C. DAS ISLAND, ABUDABI, UAE.** **12. BIJULAL JAMES, AGED 44 YEARS, S/O.JAMES, MEMBER OF THE ST.FRANCIS READING ASSOCATION, MATTOM WITH PERMANENT ADDRESSES PULIKKOOTTIL HOUSE P.O.CHOONDAL, PARANNOORE, TRISSUR, KERALA TRICHUR DISTRICT-680 504** - **NOW WORKING AND RESIDING AT AI HOKOOK-IPBO, CEDER-II VULK FUEL, P.B.NO.461.09 FAMAHEEL, 640 12, KUWAIT** **13. SANJU THOMAS, S/O.THOMAS, UPSA ST.FRANCIS HIGH SCHOOL FOR GIRLS MATTOM VELLARA HOUSE, KOONAMOOCHI VIA, KECHERY MATTOM, THRISSUR DISTRICT-680 504.** ## **CRP.No. 723 of 2013** **14. ANIT K VARGHESE, D/O.VARGHESE, UPSA ST.FRANCIS HIGH SCHOOL FOR GIRLS MATTOM KANNANAIKAL HOUSE, P.O.MATTOM (VIA) KECHERY, MATTOM THRISSUR DISTRICT-680 504.** **15. DEJO JOSEPH.E., S/O.JOSEPH, UPSA ST.FRANCIS HIGH SCHOOL FOR GIRLS MATTOM EDAKKALATHOOR HOUSE, P.O.ALOOR, VIA KECHERY MATTOM, THRISSUR DISTRICT-680 602.** **16. P.T.JAISON, S/O.THOMAS, F.T.M.ST. FRANCIS HSS MATTOM PORATHOOR HOUSE, P.O.MATTOM VIA, KECHERY MATTOM THRISSUR-680 602.** **17. SUNNY P.A., S/O.P.C.ANTONY, FTM ST.FRANCIS HIGH SCHOOL FOR GIRLS MATTOM PULIKKOTTIL HOUSE, P.O.ARIKANNIYOOR, VIA KECHERY MATTOM THRISSUR DISTRICT-680 602.** **18. THE NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTION, GOVERNMENT OF INDIA, NEW DELHI REPRESENTED BY ITS SECRETARY.** **19. JAMES CHAKRAMAKIL, AGED 58, S/O.CHAKRAMAKIL KURIAN, AGRICULTURIST, ALOOR VILLAGE ALOOR P.O., THALAPPILLY TALUK THRISSUR DISTRICT-680 602.** **20. FRANCIS THALAKOTTOOR, AGED 41, S/O.LONAPPAN, THALAKOTTOOR, EMPLOYED IN BANK ALOOR VILLAGE, KUNAM MOOCHI P.O., THALAPPILLY TALUK THRISSUR DISTRICT-680 504.** **ADDL. RESPONDENTS 21 TO 28 SOUGHT TO BE IMPLEADED AS ADDL. DEFENDANTS IN THE SUIT :** **21. JAIN ANTONY K., S/O.ANOTNY K.L., ST.FRANCIS HIGHER SECONDARY SCHOOL, MATTOM, KAKKASSERY HOUSE, P.O.MATTOM THRISSUR DISTRICT-680 602.** **22. SUMA T.T. (DELETED), D/O.T.K.THOMAS, ST.FRANCIS HIGHER SECONDARY SCHOOL, MATTOM, THRISSUR DISTRICT-680 602.** - **RESPONDENT No.22 IS DELETED FROM THE PARTY ARRAY VIDE ORDER DT.9.12.2013 ON I.A.3110/13 IN CRP 723/13.** **23. NEETHU PAUL, D/O.PAUL NELLISSERY ST.FRANCIS HIGHER SECONDARY SCHOOL, MATTOM NELLISSERY HOUSE P.O., OLLUR, PIN-680 306.** **24. SEBY C.O., S/O.C.T.OUSEPH, ST.FRANCIS HIGHER SECONDARY SCHOOL, MATTOM, CHIRAMAL HOUSE, NABAZHIKADU, MATTOM, THRISSUR DISTRICT -680 602.** ## **CRP.No. 723 of 2013** **25. RESHMA P. XAVIER, D/O.XAVIER P.V., ST.FRANCIS HIGHER SECONDARY SCHOOL, MATTOM , PULIKOTTIL HOUSE, KANDANASSERY MATTOM, THRISSUR-680 602.** **26. THE DIREICTOR OF HIGHER SECONDARY EDUCATION HOUSING BOARD BUILDING, SANTHI NAGAR THIRUVANANTHAPURAM-695 001.** **27. THE REGIONAL DEPUTY DIRECTOR OF PUBLIC INSTRUCTION DEVANKULANGARA, EDAPPALLY P.O. ERNAKULAM DISTRICT-682 024.** **28. FR.JOSEPH PULIKKAN, AGED 72, EX-OFFICIO PRESIDENT, ST.FRANCIS READING ASSOCATION MATTOM, VICAR, ST.THOMAS FORANE CHURCH MATTOM P.O., THRISSUR DISTRICT-680 602.** **IMPLEADING PETITION ALLOWED TO IMPLEAD FR.JOSEPH PULIKKAN AS ADDL. DEFENDANT AS PER THE ORDER DATED 26-6-2013 IN I.A.No. 11142 OF 2012, AMENDMENT PETITION I.A.No.6313 OF 2012 FILED AS PER THAT ORDER AND ALLOWED BY THIS HON'BLE COURT ON 8-72013 FR.JOSEPH PULIKKAN WAS IMPLEADED IN THE SUIT AS ADDL. 37TH DEFENDANT, NAME AND ADDRESS OF THE ADDL.37TH DEFENDANT STRUCK OFF AND SUBSTITUTED BY ADDING THE NAME AND ADDRESS OF THE NEW VICAR MONSEIGNEUR FR.GEORGE EDAKKALATHOOR AS ADDL.37TH DEFENDANT, AS PER THE ORDER DATED 31-7-2013 IN I.A.No.6729 OF 2013.** **MONSEIGNEUR FR.GEORGE EDAKKALATHOOR, AGED 50, VICAR ST.THOMAS FORANE CHURCH, MATTOM P.O., TRICHUR (DT.), EX-OFFICIO PRESIDENT ST.FRANCIS READING ASSOCIATION, MATTOM, TRICHUR (DT) PIN : 680 602.** **R18 BY ADV. SRI.P.PARAMESWARAN NAIR, ASG OF INDIA R1,R3,R28 BY ADV. SRI.DEEPU THANKAN R2,R19,R20 BY ADV. SRI.SHAJI P.CHALY SRI.R.SANJITH R24 BY ADV. SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI R21,R23 & 25 BY ADV. SMT.G.RANJITA** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **jvt** ## **CRP.No.723 OF 2013** ## **APPENDIX** Petitioner's Exhibits :- Annexure A :- True copy of the order dated 25-9-2012 in I.A.No.6340 of 2012 in O.S.No.1300 of 2010 by the 1[st] Addl. Sub Court, Trichur. Annexure B :- True copy of the judgment dated 15-112012 in O.P.(C) No.3512 of 2012 by the Hon'ble High Court of Kerala. Annexure C :- True copy of the order dated 7-10-2013 petition(s) for Special Leave to Appeal (Civil) Nos.3674836749/2012 by the Supreme Court of India. Annexure D :- True copy of the Affidavit dated 1-122012 and petition dated 5-12-2012 in I.A.no.11142 of 2012 in O.S.No.1300 of 2010 filed before the Sub Court, Trichur. Annexure E :- True copy of the Counter Affidavit dated Nil day of January, 2013 in I.A.No.11142 of 2012 in O.S.No.1300 of 2010 filed before the Sub Court, Trichur. Annexure F :- True copy of the Reply dated 28-9-2013 issued by the Public Information Officer, Principal, St.Francis Higher Secondary School, Mattom, Thrissur (Dt.) to the 2[nd] petitioner under the Right Information Act. Annexure F(a) :- True copy of the appointment order No.22/13 dated 30-8-2013 sent by the Fr.Varghese Palathinkal illegally acting as the Corporate Manager, St.Francis Reading Association of Corporate Educational Agency, Mattom to the Principal St.Francis Higher Secondary School, Mattom, Thrissur (Dt.) “to make arrangements to join Smt.Neethu Paul as HSST (Jr) - Mathematics in St.Francis HSS Mattom w.e.f.30-8-2013 since she is appointed as HSST (Jr) Mathematics”. Annexure F(b) :- True copy of the appointment order No.23/13 dated 30-8-2013 sent by the Fr.Varghese Palathinkal illegally acting as the Corporate Manager, St.Francis Reading Association of Corporate Educational Agency, Mattom to the Principal St.Francis Higher secondary School, Mattom, Thrissur (Dt.) “to make arrangements to join Sri.Jain Antony as HSST Computer Science in St.Francis HSS Mattom w.e.f.30-8-2013 since she is appointed as HSST - Computer Science” ## **CRP.No. 723 of 2013** Annexure F(c) :- True copy of the appointment order No.24/13 dated 30-8-2013 sent by the Fr.Varghese Palathinkal illegally acting as the Corporate Manager, St.Francis Reading Association of Corporate Educational Agency, Mattom to the Principal St.Francis Higher Secondary School, Mattom, Thrissur (Dt.) “to make arrangements to join Sri.Seby C.O. as HSST (Jr) - Physics in St.Francis HSS Mattom w.e.f.30-82013 since she is appointed as HSST (Jr)- Physics. Annexure F(d) :- True copy of the appointment order No.25/13 datred 30-8-2013 sent by the Fr.Varghese Palathinkal illegally acting as the Corporate Manager, St.Francis Reading Association of Corporate Educational Agency, Mattom to the Principal St.Francis Higher Secondary School, Mattom, Thrissur (Dt.) “to make arrangements to join Smt.Reshma P Xavier as HSST (Jr) - Chemistry in St.Francis HSS Mattom w.e.f.30-8-2013 since she is appointed as HSST (Jr) - Chemistry” Respondent's Exhibits :- NIL. //True Copy// P.A. to Judge ## **N.K.BALAKRISHNAN, J. -------------------------------C.R.P. No.723 of 2013 --------------------------------Dated this the 16[th] day of January 2014** ## **O R D E R** This CRP is filed challenging the order passed by the learned Addl. Sub Judge, Thrissur on a petition for impleadment under Order I Rule 10 of CPC. The request was to implead supplemental defendants 21 to 28 in that suit. Among them, supplemental defendants 21 to 25 are stated to be the guest lecturers appointed by the de facto manager. That petition was dismissed as regards the impleadment of D21 to 25 sought for in the petition. It is submitted by the learned counsel for the petitioners that proposed D22 is not required to be impleaded. 2. The managership of the 3[rd] respondent is in dispute. Learned counsel for the plaintiffs/petitioners has argued at length stating that there was infraction of the provisions C.R.P. No.723 of 2013 -: 2 :- contained in the Kerala Education Act and Rules relating to the appointments of the guest lecturers. The question whether the 3[rd] respondent is entitled to appoint proposed D21 to D25 and whether there was any violation of the Act or Rules are something to be gone into in the suit, the learned Senior Counsel for the respondents submits. 3. It was observed by the trial court that to add a party under Order I Rule 10(2) of CPC, he must be either a person who ought to have been joined or be a person whose presence before the court is necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit. It is pointed out by the learned counsel for the petitioners that the appointments were made by the 3[rd] respondent when the matter was pending before the Honourable Supreme Court. As per order dated 14.12.2012, the Hon'ble Supreme Court directed : “Issue notice returnable in eight weeks. Dasti, in addition to the ordinary process, is C.R.P. No.723 of 2013 ## -: 3 :- permitted. In the meanwhile, status quo with regard to existing management shall continue to operate.” According to the respondents, D21 to D25 were appointed long prior to that date. Ultimately, the special leave petitions were dismissed by the Hon'ble Supreme Court on 7.10.2013 and directed the trial court to dispose of the suit within six months from the date of receipt of copy of the order passed by the Hon'ble Supreme Court. It was thereafter, the impleadment petition was filed. 4. The dispute in the suit is relating to the election to the post of Manager. As many as 19 reliefs are sought in the plaint. Those reliefs do not include the challenge against the appointment of the teachers/lecturers by the 3[rd] respondent Manager. The learned trial Judge found that it is totally unnecessary to implead the supplemental defendants since their presence is not required for adjudication of the dispute involved in the suit. Arguments were addressed by the learned counsel for the petitioners, C.R.P. No.723 of 2013 -: 4 :- as if it is a separate petition challenging appointment of the teachers, for violation of the provisions contained in the Education Act or Rules. It was observed by the trial court that proposed D26 and D27 are officials of the State. Since State of Kerala is already on the party array there was no necessity of impleading other officials. Hence, the request for impleadment of D26 and D27 was also disallowed. Proposed supplemental D28 is the present Vicar of R1 Church and he is also the Ex-officio President of the Association, which runs the schools. Hence, the trial court found that his presence in the suit is necessary and so, he alone was directed to be impleaded. His rank may get changed as the application for impleadment of D21 to D27 has been rejected. 5. In this connection, the learned Senior Counsel appearing for the respondents has relied upon the decision of the Division Bench of this Court in **Padmanabhan Nambiar** v. **Government of Kerala** [1997 (2) KLT 725] in C.R.P. No.723 of 2013 -: 5 :- support of his submission that even if the election of the manager was invalid, whatever official duties were discharged by him cannot be rendered as void. The de facto doctrine was applied by the Division Bench for that purpose. In that case, the appointments were made by the respondent, one Govindan Nambiar, who claimed that he was elected as the Secretary and that the appointments were made by him acting as the Manager of the school. There was no order of injunction against him from discharging his official duties as the manager of the school. Therefore, he was treated as the de facto manager of the school during the relevant time. The de facto doctrine was introduced in that case to hold that the appointment cannot be treated as void. 6. The decision of this Court in **Mar Theophilus** v. **State of Kerala** [1986 KLT Short Note Case No.93 Page No.57] has been relied upon by the learned counsel for the petitioners in support of his submission that abdication of C.R.P. No.723 of 2013 -: 6 :- jurisdiction (under Rule 5A of the Kerala Education Rules) by the statutory authorities in every case, on the ground that the dispute is a fit one for the civil court, cannot be justified. In that case, it was held that the DPI or the Government will have to decide whether a case of change of ownership is involved so as to justify grant of approval for a consequent change of management and that they should decide the question in all cases, atleast for the limited purposes of the Act and Rules. So far as the case on hand is concerned, the aforesaid ruling has no application since the question here is whether the rejection of the impleadment of defendants 25 to 27 suffers from any jurisdictional error or whether there was any illegal exercise of power by the trial court. 7. Learned Senior Counsel appearing for the respondents would submit that the 3[rd] respondent is now functioning as the manager and being the de facto manager, the appointments were made to meet the contingency. Whatever that be, the contention that the guest lecturers C.R.P. No.723 of 2013 -: 7 :- appointed by the manager should also be made parties to the suit, where the dispute does not pertain to their appointments, is quite unnecessary, the learned counsel for the respondents rightly submits. It has already been stated by me that for the proper adjudication of the suit, the presence of supplemental defendants 21 to 25 are absolutely unnecessary. Since the State of Kerala is already a party, proposed supplemental defendants 26 and 27 are also unnecessary to be impleaded. Therefore, I find no illegality, irregularity or impropriety in the order passed by the learned Addl. Sub Judge. Hence, this CRP is dismissed. **Sd/N.K.BALAKRISHNAN, JUDGE.** Jvt