St. John's Jacobite Syrian Church, Vadakara & P.J. Joseph v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 12TH NOVEMBER 2008 / 21ST KARTHIKA 1930 WA.No. 2515 OF 2007 --------------------( WPC.14256/2007 OF THIS COURT) .................... APPELLANT(S): PETITIONERS ------------------------- 1. ST.JOHN'S JACOBITE SYRIAN CHURCH, VADAKARA, KOOTHATTUKULAM, REPRESENTED BY ITS TRUSTEE, K.I.KURIAKOSE AND SUNNY JOHN. 2. P.J.JOSEPH, MANAGER, ST.JOHN'S SYRIAN HIGHER SECONDARY SCHOOL AND T.T.I., VADAKARA, KOOTHATTUKULAM. BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.SHAHUL HAMEED MOOPPAN SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE RESPONDENT(S): RESPONDENTS -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVT. OF KERALA, GENERAL EDUCATION (F) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, MUVATTUPUZHA. 4. THE VICAR, ST.JOHN'S SYRIAN CHURCH, VADAKARA, KOOTHATTUKULAM, ERNAKULAM DISTRICT. 5. SHRI.THOMAS.C.VARGHESE, NADU CHEMBONTHAYIL, KOOTHATTUKULAM. _**W.A. 2515/2007**_ _**:2:**_ ## _**THIRD PARTIES:**_ 1. SHINE SKARIA, LABORATORY ASSISTAT, ST. JOHNS SYRIAN HIGHER SECONDARY SCHOOL, VADAKARA, OLIYAPURAM P.O., KOOTHATTUKULAM. 2. JINU C.JACOB, U.P.S.A. (HINDI) ST. JOHNS SYRIAN HIGHER SECONDARY SCHOOL, VADAKARA, OLIYAPURAM P.O., KOOTHATTUKULAM. 3. RAJU K. JACOB, FULL TIME MENIALL, ST. JOHNS SYRIAN HIGHER SECONDARY SCHOOL, VADAKARA, OLIYAPURAM P.O., KOOTHATTUKULAM. 4. JOBBY. N.U., ATTENDER, ST. JOHNS SYRIAN HIGHER SECCONDARY SCHOOL, VADAKARA, OLIYAPURAM P.O., KOOTHATTUKULAM. (ALLOWED TO BE HEARD AS THIRD PARTIES AS PER ORDER DATED 20.10.2008.ON I.A. 955/2007) R5 BY ADVS. M/S. .K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN R4 BY ADV.SRI.S.SREEKUMAR ADV. SRI.B.GOPAKUMAR FOR THIRD PARTIES. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20.10.2008, ALONG WITH WA NO. 2677 OF 2007, THE COURT ON 12.11.2008, DELIVERED THE FOLLOWING: ## P.R. RAMAN & T.R. RAMACHANDRAN NAIR, JJ. = = = = = = = = = = = = = = = = = = = = W.A. NOS. 2515 & 2677 OF 2007 = = = = = = = = = = = = = = = = = = = = = = ## DATED THIS, THE 11TH DAY OF NOVEMBER, 2008. ## _**J U D G M E N T**_ ## _Raman, J._ Both the above appeals arise out of the common judgment rendered in W.P.(C) Nos. 14256/2007 and 13575/2007 by the learned Single Judge. 2. The appellants in W.A. 2515/2007 are the writ petitioners in 14256/2007 whereas the appellants in W.A. 2677 are Respondent Nos. 7 ,8 & 9 in W.P.(C) 13575/2007. The facts which led to the dispute between the parties may briefly be stated as follows: 3. Suit O.S. 11/1981 on the file of the First Additional District Judge, Ernakulam, was filed by M/s. Mathai and Kuriachan as plaintiffs for removing Defendants 1 to 3,- the Vicar, Trustee and Lay Trustee of the Vadakara St. John's Orthodox Syrian Church and the 7th defendant, the Manager of the Schools belonging to the Church and directing the defendants to render accounts etc. and also for appointing new office bearers as trustees and Edavaka Managing Committee for the Church and Manager for the schools of the Church, restraining the defendants from interfering with the administration of the Church and its schools and for incidental reliefs. That suit was eventually decreed by judgment dated 30.7.1985, against which an appeal as A.S. 37/1986 was filed before this Court. This Court, while disposing of ## _**W.A.Nos. 2515& 2677/2007**_ :2: the said appeal, by judgment dated 1.9.1999, referred to the finding of the court below that elections have to be held for administration of the Church and the properties. It was also observed that there is no reason to go into the details of the controversies or to interfere with the decree passed by the court below, in the light of the directions issued by the _**Apex Court in P.M.A. Metropolitan v. Moran Mar Marthoma Mathews**_ (AIR 1996 SC 3121) and that in the light of the binding directions, no further directions are called for except to direct that the Board of Receivers will continue until proper trustees are elected or appointed in terms of the directions of the Apex Court. The above two judgments are referred to only for the limited purpose of tracing out the historical background only since it was in the main case that an interlocutory petition was filed which lead to an election. 4. The District Court, Ernakulam, by an interim order dated 24.1.2004 passed in I.A. Nos. 299, 300 and 301/2003 in O.S. 11/1981 directed conduct of election on certain conditions. The prayer made in I.A. 299/2003 was for a direction to the then Vicar of the church to prepare the voters' list and to do the needful for a fair and free election to the Church. I.A. 300/2003 was filed for appointment of an Advocate Commissioner as the observer of the election process. I.A. 301/2003 was filed praying to _**W.A.Nos. 2515& 2677/2007**_ :3: discharge the Board of Receivers and to hand over charge to the persons named in the application, since they claimed to have been elected in a validly held meeting. After making reference to the contentions raised by the parties and the points for determination, the District Court found that the election of trustees and managing committee to the church and the manager of the educational institutions of the church shall be conducted. An advocate Commissioner was also appointed as observer to supervise the regularity and fairness of the election process and to file a detailed report after completion of the election and declaration of results. The other findings or directions are not of any relevance to the issue under consideration and hence omitted to be referred. 5. Pursuant to the direction, an election was held to various posts and the Advocate Commissioner has filed his report also. The election was thus held to the managing committee of the church, to the Vicar's Secretary as also to the post of school manager, directly. Sri. P.J. Joseph, who secured the maximum vote was declared elected as the manager of the school. The District Educational Officer approved his appointment as the manager of St. John's Syrian Higher Secondary School and Teacher's Training Institute, Vadakara for one year with effect from 3.12.2004 or till the election to the managing committee is over, whichever is earlier, _**W.A.Nos. 2515& 2677/2007**_ :4: subject to the verdict dated 3.12.2004 in I.A. 328/2000 in O.S. 411/1981 on the file of the First Additional District Court, Ernakulam, in terms of Rule 4, Chapter III, K.E.R. Sri. Joseph, on the expiry of one year period, requested to extend his duration of managership from 3.12.2005 to 31.3.2006. The District Educational Officer, Muvattupuzha, by his order dated 28.2.2006 produced as Ext.P3 in W.P.(C) 13575/2007 from which W.A. 2677/2007 arises, held that there is no provision for extension of managership without any order of the court or other higher authorities. It was also found that the order passed by the subordinate court in I.A. 369/2005 in O.S. 48/2005 relates to the renewal of Edavaka Yogam Register and by that order renewal of the Edavaka Register is extended up to 31.3.2006. The Vicar of the St. John's Orthodox Syrian Church and the managing committee, Vadakara has submitted report and connected documents of election of the new managing committee and other personals for approval. Hence extension of the period of managership of Sri.P.J. Joseph was rejected and it was declared that his managership has expired on the A.N. of 2.12.2005. Thomson C. Varghese, who was elected as the new manager, put in an application, produced as Ext.P4 in the same writ petition, before the Educational authority for change of managership and the District Educational Officer, Muvattupuzha, by his order dated _**W.A.Nos. 2515& 2677/2007**_ :5: 22.4.2006 approved his appointment as manager of St. John's Syrian Higher Secondary School and Teachers Training Institute, Vadakara, for three years, with effect from 5.12.2005 or till the constitution of the next managing committee, after three years. St. John's Jacobite Syrian Church as the first petitioner and P.J. Joseph as the second petitioner, filed a writ petition before this Court as W.P.(C) 14103/2006 which was eventually disposed of by judgment dated 23.6.2006. There, this Court directed the Director of Public Instruction to hear and dispose of the appeal Ext.P7 which was pending against the orders of the District Educational Officer and till then, the Deputy Director of Education, Ernakulam, was directed to function as the manager. It appears that the Deputy Director of Education, has acted as the manager in terms of the judgment as evidenced by Ext.P7 letter dated 4.7.2006. The Director of Public Instruction, Thiruvananthapuram, eventually disposed of the appeal by Ext.P8 order dated 7.7.2006. He referred to the order of the District Educational officer and held that the decision of the DEO is contrary to the approved constitution of the corporate educational agency management. According to him, the period of managership is fixed as three years unless there is any change in the Board of management and hence there was no need to limit the period of managership as one year in the case of Sri. P.J. Joseph as was _**W.A.Nos. 2515& 2677/2007**_ :6: done by the District Educational Officer. Reference was made to the order in I.A. 362/2005 in O.S. 48/2005 and held that the action of the District Educational Officer in approving the managership of Thomson C. Varghese is irregular in the light of the said order. In the course of discussion, it was held that the notice Ext.A2 referred to in the order is a notice regarding renewal of the Edavaka register and the finding of the Munsiff Court that there is no scope for Edavaka raising any complaint against Ext.A2 notice and that the conclusion is that Ext.A2 notice published by the third respondent and all further proceedings including election, if any, held on 17.11.2005 to the Church are invalid and unsustainable. Similar notice published by the managing committee and action if any, taken pursuant to such notice were also held invalid. Therefore, according to the Director of Public Instruction, in the light of the order passed , the District Educational Officer, ought not have approved the managership of Thomson C. Varghese and according to him, the approved constitution of the corporate educational agency is to be followed mutatis mutandis and the managership of the educational agency is for three years and so the District Educational Officer is not empowered to limit the period to one year in the case of P.J. Joseph as was done. Accordingly, it was declared that managership of Sri. P.J. Joseph is liable to be approved for three years _**W.A.Nos. 2515& 2677/2007**_ :7: from 3.12.2005 and the orders passed by the District Educational Officer in that regard was set aside and he was directed to approve the appointment of Sri. P.J. Joseph for three years. Aggrieved thereby, a revision was preferred before the Government and by Ext.P9 dated 20.7.2006, operation of the proceedings of the Director of Public Instruction was stayed pending final decision in the revision. There was a writ petition filed as W.P.(C) 23009/2006 at the instance of P.J. Joseph and another and this court clarified that based on the interim order passed on 25.8.2006, no appointment to the post of teaching or non-teaching staff shall be made by Sri. P.J. Joseph. Eventually, that writ petition was disposed of by judgment dated 20.10.2006, along with another writ petition, directing the Government to consider and pass orders on the revision preferred by the Vicar of the St.John's Orthodox Syrian Church, Vadakara and Thomson C. Varghese, who are respondents 3 and 4 therein, after hearing all the parties. Since at the admission stage, the interim stay order passed by the Government was stayed by this Court, it was ordered in the final judgment that the interim stay granted by this Court will continue. The sequence of events as noticed would show that though the appointment of Sri. P.J. Joseph as manager was approved initially for a period of one year by the District Educational Officer, it was not extended which lead to an appeal _**W.A.Nos. 2515& 2677/2007**_ :8: being filed at his instance in which the Director of Public Instruction reversed the order of the D.E.O. and the Government, though granted an interim stay of the order of the Director of Public Instruction, this Court intervened by an interim order of stay enabling Sri. Joseph to continue. The Government, however, set aside the order of the Director of Public Instruction and restored that of the District Educational Officer, as per its Order G.O.Rt. No. 1616/07/G.Edn. dated 11.4.2007 which was impugned in the writ petition filed by Sri. P.J. Joseph (W.P.(C) 14256/2007). W.P. (C) 13575/2007 was filed by Thomson C. Varghese contending that he is the duly elected manager of the school and since the Government finally having approved, his appointment is liable to be implemented. He sought for appropriate directions in this regard. The learned Single Judge, after elaborate consideration, disposed of these writ petitions by a common judgment along with three other writ petitions. 6. However, we are concerned only with the writ appeals which mainly centers round the question regarding the appointment of Sri. Joseph as the manager of the school and whether it extends to a period of three years from the original date of appointment. Hence the main dispute is the correctness of the final order now passed by the Government restoring the order of the District Educational Officer and setting aside the order of the _**W.A.Nos. 2515& 2677/2007**_ :9: Director of Public Instruction, by which the appointment of Sri. Thomson C. Varghese as the manager for three years was approved holding that Sri. Joseph is not entitled to continue beyond one year. The learned Single Judge, after discussing the points in controversy, held that both the factions were continuing their legal battle before several courts and in that context it was observed that Sri. Joseph had approached the controlling officer to allow him to continue as manager till March, 31st, 2006 and this fact strengthen the case of the Vicar that the newly elected School Board had chosen Sri. Thomson C. Varghese as the new manager. Yet another aspect noticed was the order produced as Ext.P9 in W.P.(C) 14256/2007, issued by the Munsiff Court, Kolencherry in I.A. 367/2005 in O.S. 48/2005 dated 22.2.2006 - an application filed by the members of the group supporting the petitioners therein. In that order, the learned Munsiff made it clear that the order interdicting the Vicar from renewing or reconstructing the Edavaka register would not preclude or prohibit him from convening the Edavaka Yogam and holding election as provided under the constitution in order to elect a new managing committee which had to assume office on expiry of the term of the previous committee. It was observed that a perusal of the contentions raised by the petitioners in the said interlocutory application as revealed from Ext.P9 order would show that steps had been taken by the _**W.A.Nos. 2515& 2677/2007**_ :10: Vicar to elect new members of the Church committee in November, 2005. 7. The learned Single Judge noticed that the term of office of the committee was one year which was due to expire in the first week of December, 2005, that the controlling officer had approved the appointment of Sri. Joseph as manager for one year only with effect from 3.12.2004 and it was obviously therefore that Sri. Joseph requested the controlling officer to extend his tenure and that his contention was that so long as fresh elections were not held to the church committee and school board, he was entitled to continue in office till such time fresh elections were held. It was observed that a perusal of Exts.P8 and P9 orders of the Munsiff's Court in the Interlocutory Applications in O.S. 48/2005 and the pleadings of the petitioners in W.P.(C) 14256/2007 would undoubtedly show that they were aware that elections were in fact held in November, 2005 as contended by the Vicar. If that be the position, the validity or otherwise of any such election would have to be necessarily challenged by the petitioners or any other aggrieved party before a civil court. Therefore, it was concluded that there is no material irregularity or illegality in the conclusions made by the Government in Ext.P18 order and the Government was justified in approving the appointment of Sri. Thomson C. Varghese as manager since admittedly the tenure of Sri. Joseph as manager had expired on 2.12.2005. _**W.A.Nos. 2515& 2677/2007**_ :11: Accordingly, W.P.(C) 14256/2007 was dismissed and W.P.(C) 13575/2007 was allowed. 8. We have heard the learned senior counsel Sri. Ramakumar appearing on behalf of the appellants as also Advocates M/s. S. Sreekumar and Jaju Babu, appearing on behalf of the contesting respondents. Learned senior counsel appearing for the appellants mainly contended that the Munsiff's Court having held in the interim injunction application that election, if any, held pursuant to Ext.A2 notice is invalid, Sri. Thomson C. Varghese who claimed to have been elected in the said election cannot claim any right to be appointed as the manager. By referring to the bye-law, it was also contended that the appointment of the manager is ordinarily for a period of three years unless removed by the Board and in so far as Sri. P.J. Joseph is not removed, his normal term is for three years from the date of appointment. Per contra, the contesting respondent would submit that the Munsiff's Court has only held that the renewal of the Edavaka Yogam Register pursuant to Ext.A2 is bad, however, it was made clear that it was not interdicting the election being held in accordance with law and that since an election had been held and Sri. Thomas C.Varghese was appointed as the manager, in the absence of any challenge to the said election before any court, the order passed by the Government is perfectly _**W.A.Nos. 2515& 2677/2007**_ :12: valid. 9. From the narration of the facts, the following facts are beyond doubt. The election to the post of manager was held pursuant to Ext.P3 order dated 24.1.2004, passed by the Ist Additional District Court, Ernakulam, that from the commissioner's report Ext. P4 it is revealed that Sri. P.J. Joseph was appointed to the post of school manager and his appointment was approved by the District Educational Officer for a period of one year from 3.12.2004 or till the election to the managing committee, which ever is earlier. Therefore, his continuance as manager up to 2.12.2005 is beyond dispute. Thereafter, though he sought for an extension, that was rejected by the District Educational Officer and since in the meantime, Sri. Thomson C. Varghese sought approval of his appointment as the manager in an election held subsequently, the Educational Officer approved his appointment as manager with effect from 5.12.2005 for a period of three years. 10. Since the main contention advanced is based on an order passed by the Musniff's Court in an interim injunction application, we shall straight away refer to that order which is produced as Ext.P9 in W.P.(C) 14256/2007. I.A. 367/2005 in O.S. 48/2005 was filed before the Munsiff's Court, Kolencherry by one N.K. Mathai (subsequently, ## _**W.A.Nos. 2515& 2677/2007**_ :13: petitioners 2 to 9 were also impleaded) against St. John's Jacobite (Orthodox) Syrian Church, Vadakara and others interalia seeking for a temporary injunction. The contention was that the petitioner therein is a parishioner and Idavaka member of the St.John's Jacobite (Orthodox) Syrian Church, that the Church is governed by 1934 constitution, that from 3.12.2004 the administration charge was handed over to the elected managing committee, that as per the constitution Edavaka Registers is the basic document, that the petitioner happened to see a public notice on 30.10.2005 to the effect that the Edavaka register of the first respondent Church would be renewed and for that purpose necessary form will be issued from the office of the third respondent, that if the third respondent is allowed to renew the Edavaka register, it will result in irreparable hardship and injury, because the notice published is against the provisions of the constitution since all the parishioners did not submit prescribed form and they will lose their membership in the Edavaka. Hence pending disposal of the suit it was prayed that by a temporary injunction, the third respondent be restrained from renewing or reconstructing the register. The third respondent contested the proceeding by filing counter and additional counter affidavits. He admitted the fact of issuing notice; but according to him, time for submitting the form was extended up to 17.11.2005 and ## _**W.A.Nos. 2515& 2677/2007**_ :14: hence the suit has become infructuous. The Munsiff's Court held that Ext.A2 notice issued by the third respondent for renewal of Edavaka register is unconstitutional and invalid and therefore, all further proceedings pursuant to the notice are also unsustainable. Further, it was held that there is no prima facie material on record in the case that even if any election was held on 17.11.2005, the same was done after complying with the requisite formalities provided in the constitution in that regard and therefore, the election, if any, held on 17.11.2005 is invalid. The appellant's contention is mainly based on the above said finding. 11. We may at once say that the injunction was against the renewal of Edavaka register as per Ext.A2 notice. There was no scope whatsoever to consider the validity or otherwise of the election held. Of course, the finding would show that anything done for renewal of the Edavaka register pursuant to Ext.A2 is bad. 12. We may notice that the District Court, Ernakulam, by its order dated 5.12.2005 had disposed of four interlocutory applications I.A. Nos. 3609, 3611, 3612 & 3856/2005 in O.S. 11/1981, by a common order. The copy of the said order is produced as Ext.R4(b) in W.P.(C) 14256/2007 (from which W.A. 2515/2007 arises). I.A. Nos. 3609 & 3611 of 2005 were filed by the 22nd defendant in the suit and I.A. 3856/2005 was filed by one _**W.A.Nos. 2515& 2677/2007**_ :15: of the trustees of St. John's Orthodox Syrian Church. I.A. 3609/2005 is filed for appointment of an Advocate Commissioner to observe and monitor the election process of the plaint church and submit a report. I.A. 3611/2005 is for an order of injunction restraining the 30th respondent vicar from proceeding with the renewal of Edavaka Register, Edavaka Yogam Register and receiving applications for that purpose in respect of the plaint church. I.A. 3612/2005 is for a direction to the 30th respondent vicar to prepare a draft voters list of the parishioners of the plaint church in accordance with the Sabha constitution, and incidental reliefs. I.A.3856/2005 filed seeking an order of injunction to restrain the then vicar of the church and his supporters from inducting other office bearers in the place of the then trustees, managing committee and the manager of the schools being run by the church. There is a finding in para 13 of its order that an election was held pursuant to which the office bearers took charge on 4.12.2004 and their term of office expired by 4.12.2005. Accordingly, all the applications were dismissed and that order has become final. 13. The constitution of the Malankara Orthodox Suriyani Sabha deals with the manner in which an election to the church managing committee is to be held. As per Clause 25 of Ext.P2 constitution the term of the church committee is for a period of one year. On the other hand, _**W.A.Nos. 2515& 2677/2007**_ :16: St. John's Syrian High School, Vadakara and St. John's Syrian Basic Training School, Vadakara, are under the Vadakara St. John's Orthodox Syrian Church Educational Agency, Oliyapuram, and the ownership of those institutions is with the Vadakara St. John's Orthodox Syrian Church. The management of those institutions vests with the Board comprising of seven members out of which five shall be elected by the Vadakara St. John's Orthodox Church Managing Committee from the Edavaka and the remaining two members by the Edavaka Metropolitan. The term of the Board shall be three years and the new Board shall be constituted on expiry of the term.. The first meeting of the Board shall be held under the chairmanship of the president of the Church managing committee and the meeting shall elect one of the five elected members as Manager of the school and another among the seven members as Chairman of the Board. The Board is given power to remove an existing manager and in his place elect and appoint one of the member as manager. The term of the Board is three years. Thus it can be seen that the Board of management of the educational institution is different from the church managing committee. The Board of management of the educational institutions is to be constituted by electing five members by the church managing committee from the Edavaka and two are to be nominated by the Metropolitan. It is _**W.A.Nos. 2515& 2677/2007**_ **==> picture [19 x 9] intentionally omitted <==** from the five elected members that one has to be elected as the manager. In other words, election of the manager is not to be done by the Edavaka and only five members are to be elected from the Edavaka and one of such five elected members in turn has to be elected as the manager. Therefore, it is evident that the election conducted for the office of the manager of the educational institutions (pursuant to the order of the civil court) directly from the parishioners is not in accordance with the bye-law as referred to above. Therefore, the argument that because of the term of the Board of management of the educational agency is three years and in the absence of any order removing the manager, impliedly, the term of the manager will continue for a period of three years is totally misconceived. So long as the manager is not one elected from among the five elected members of the Board, he cannot claim for continuance of his term for a period of three years. In the absence of any tenure fixed in the order passed by the court, it has to be treated that the manager can continue only for a period of one year. Further, the District Court held that the term expired on **4.12.2005.** Therefore, the continuance of office beyond one year by the petitioner in the writ petition cannot be allowed. Therefore, the order passed by the Government restoring the order of the District Educational Officer in this regard is found correct. ## _**W.A.Nos. 2515& 2677/2007**_ **==> picture [19 x 9] intentionally omitted <==** 14. Now regarding the claim put forth by Thomson C. Varghese is concerned, his appointment is approved by the educational agency for a period of three years and that period of three years is about to expire. The validity or otherwise of the election is not a matter for the educational authority to decide and they are only discharging their statutory duties of granting approval of the appointment of manager in terms of the provisions contained in the Kerala Education Rules. The learned Single Judge also left open the question of validity or otherwise of election held in 2005 and thereafter to the civil court if and when raised. In the circumstances, we find no merit in these appeals. Accordingly these appeals are dismissed. P.R. RAMAN, (JUDGE) T.R. RAMACHANDRAN NAIR, (JUDGE) knc/-