Suseelan N. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **WEDNESDAY, THE 20TH DAY OF AUGUST 2014/29TH SRAVANA, 1936** **WP(C).No. 141 of 2010 (P)** **--------------------------** ## **PETITIONER(S):** **--------------------------** **SUSEELAN N., MANAGER, M.G.M.HIGH SCHOOL, POOZHANADU, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM.** **BY ADV. SRI.BIJU BALAKRISHNAN** ## **RESPONDENT(S):** **----------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, EDUCATION DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS,** **D.P.I OFFICE, THIRUVANANTHAPURAM** **3. THE DISTRICT EDUCATIONAL OFFICER, D.E.O OFFICE, NEYYATTINKARA.** ## **4. N.SURENDRAN,** **KUNDAMATHU CHUNDEVILAKATHU VEEDU, KURAVARA, OTTASEKHARAMANGALAM P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM.** ## **ADDL.R5:** **5.N.SUBHASHITHAN, KUNDAMATHU VEEDU, MANDAPATHINKADAVU, OTTASEKHARAMANGALAM P.O., THIRUVANANTHAPURAM.** **ADDL.R5 IS IMPLEADED AS PER ODER DATED 13.7.2011 IN I.A.NO.6382/2011.** **R,R1-3 BY GOVERNMENT PLEADER SRI.A.J.JOSE AEDAIODI R,ADDL.R5 BY ADV. SMT.S.KARTHIKA R,ADDL.R5 BY ADV. SRI.M.S.UNNIKRISHNAN R4 & ADDL.R5 BY ADV. SRI.M.R.ANISON R,ADDL.R5 BY ADV. SMT.K.P.GEETHA MANI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C).NO.141/2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** ## **EXT.P1: COPY OF THE TRUST DEED NO.344/1983, DT. 08-03-1984 OF THE OTTASEKHARAMANGALAM SUB REGISTRY.** **EXT.P2: COPY OF THE SAID ORDER DT. 08-01-2009 OF THE 3RD RESPONDENT.** **EXT.P3: COPY OF THE APPEAL MEMORANDUM DT. 14-02-2009.** **EXT.P4: COPY OF THE JUDGMENT DT. 14-07-2009 IN W.P.(C).NO.19592 OF 2009.** **EXT.P5: COPY OF THE NOTICE DT. 24-09-2009 ISSUED BY THE 2ND RESPONDENT.** **EXT.P6: COPY OF THE ARGUMENT NOTE FILED ON BEHALF OF THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXT.P7: COPY OF THE ORDER NO.VI/20606/2007/DPI, DT. 30.07.2007 OF THE 2ND RESPONDENT.** **EXT.P8: COPY OF THE REPORT NO.B4/6549/07, DT. 26-02-2008 OF THE 3RD RESPONDENT.** **EXT.P9: COPY OF THE SAID ORDER NO.ET(4)/13398/09/DPI/K.DIS, DT. 05-12-2009.** **EXT.P10: COPY OF THE OBITUARY LETTER DT. 15-8-1990.** **EXT.P11: COPY OF LETTER DT. 5-6-2010 OF THE HEADMASTER M.G.M. H.S., POOZHANADU.** **EXT.P12: COPY OF THE APPOINTMENT ORDER TO DEEPA.A., KOLLAKKUDIYETTAM, VELLARADA, THIRUVANANTHAPURAM.** **EXT.P13: COPY OF THE PROCEEDINGS DT. 17-4-2008 OF THE 3RD RESPONDENT.** **EXT.P14: COPY OF THE COMPLAINT DT. NIL OF THE 4TH RESPONDENT AGAINST SRI.T.K.SURENDRAKUMAR.** **EXT.P15: COPY OF THE SAID ORDER DT. 30-07-2007 OF THE 2ND RESPONDENT.** **EXT.P16: COPY OF THE REPORT IN MATHRUBHUMI DAILY DT. 17-04-2014.** **EXT.P17: COPY OF THE PUBLIC NOTICE SHOWING THE INAUGURATION OF THE SMART CLASS ROOM DATED 28.5.2014.** ## **RESPONDENTS EXHIBITS:** **EXT.R4(A): COPY OF THE REPORT OF THE FINANCE DEPARTMENT.** ## **W.P.(C).NO.141/2010** **EXT.R4(B): COPY OF THE ORDER OF THE DISTRICT EDUCATIONAL OFFICER.** **EXT.R5(A): COPY OF LETTER SENT “UNDER CERTIFICATE OF POSTING” ON 20.01.2007 WITH POSTAL RECEIPT.** **EXT.R5(B): COPY OF RESOLUTION OF THE TRUST DATED 02.08.2007.** **EXT.R5(C): COPY OF LETTER DATED 31.03.2008 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION TO THE MANAGER.** **EXT.R5(D): COPY OF SUSPENSION ORDER ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION DATED 25.04.2008.** **//TRUE COPY//** **P.S. TO JUDGE** ## **A.K.JAYASANKARAN NAMBIAR, J. ------------------------------W.P.(C).NO.141 OF 2010** ## **----------------------------------Dated this the 20[th] day of August, 2014** ## **J U D G M E N T** The petitioner is the Manager of M.G.M High School, Poozhanad, Neyyattinkara Taluk, Thiruvananthapuram. The School is under the management of a corporate educational agency and the management is through a Trust created in terms of a registered trust deed, which is produced as Ext.P1. As per the terms of Ext.P1 trust deed, the petitioner became the Chairman of the trust and the Manager of the School, in his capacity as a Managing trustee, for a life tenure consequent to the death of his father who was the earlier Managing trustee. The appointment of the petitioner as the Manager of the School was also approved by the 1[st] respondent by proceedings dated 28.11.1986 and the petitioner was continuing as the Manager of the School. 2. In the writ petition, the petitioner is essentially aggrieved by Ext.P9 order of the 2[nd] respondent, Director of Public Instructions, **W.P.(C).No.141/2010** **2** Thiruvananthapuram. By the said order, the 2[nd] respondent set aside Ext.P2 order of the 3[rd] respondent District Educational Officer and directed the appointment of the 4[th] respondent as Manager of the School with effect from 2.8.2007. The 4[th] respondent is the brother of the petitioner and also a trustee, along with the 5[th] respondent and the petitioner, in terms of Ext.P1 trust deed. It would appear that, pursuant to differences that arose between the petitioner and the 4[th] and 5[th] respondents, steps were taken by the 4[th] and 5[th] respondents to invoke the provisions of Clause 10 read with Clause 23 of Ext.P1 trust deed to remove the petitioner from the posts of Managing trustee and Manager of the School in question. Accordingly, the 5[th] respondent caused Ext.R5(a) notice to be issued to the petitioner and thereafter passed a resolution of the trust removing the petitioner from the post of Managing trustee of the trust as also Manager of the School. The petitioner disputes the fact of service of Ext.R5(a) notice to him and therefore contends that the procedure contemplated under the trust deed for removal of the Managing trustee and Manager of the School was not complied with and therefore there was no effective removal of him as a Manager of the School. This was the issue that came up to **W.P.(C).No.141/2010** **3** be considered by the 3[rd] respondent District Educational Officer when he was approached by the 4[th] respondent with a request for approval of the change of the personnel of the Manager of the M.G.M High School, Thiruvananthapuram. In Ext.P2 order, the 3[rd] respondent District Educational Officer found that as per Clause 10 of Ext.P1 trust deed, the petitioner was to continue as Manager of the School for life. He also found that no case was made out by the 4[th] respondent for holding the Manager responsible for any of the incidents that had been highlighted before him and hence he proceeded to reject the proposal for change of management submitted by the 4[th] respondent. Aggrieved by Ext.P2 order of the 3[rd] respondent, the 4[th] respondent preferred Ext.P3 appeal before the 2[nd] respondent Director of Public Instructions. The 2[nd] respondent, taking note of the directions, which had by then been issued against him by this Court through its judgment dated 14.7.2009 in W.P.(C). No.19592/2009, conducted a personal hearing on 30.9.2009 when he apparently heard representatives of the petitioner as also the 4[th] and 5[th] respondents. Ext.P9 contains the decision of the 2[nd] respondent and it merely states as follows: **W.P.(C).No.141/2010** **4** _“At the time of hearing it is established without any doubt that Sri.N.Surendran is the present manager of the institutions as per the majority decision under clause 23 of the Trust.”_ 3. A counter affidavit has been filed on behalf of the 4[th] and 5[th] respondents, wherein, they have sought to justify the decision of the 2[nd] respondent against the backdrop of the facts that led to the passing of Ext.P9 order. The attempt in the counter affidavit is to establish that there was material available before the 2[nd] respondent to support his conclusion in Ext.P9 order. No doubt, this is disputed by the petitioner who would point out that insofar as the issue in question was of a civil nature, the authorities under the Kerala Education Act and Rules were not expected to decide the issue and there ought to have been an adjudication of the matter by the civil court before the 4[th] respondent applied for a change in management before the educational authorities. 4. I have heard Adv.Sri.Biju Balakrishnan, learned counsel appearing for the petitioner, Sri.A.J.Jose Aedaiodi, learned **W.P.(C).No.141/2010** **5** Government Pleader appearing for respondents 1 to 3 and also Adv.Sri.M.R.Anison, learned counsel appearing for respondents 4 and 5. 5. As already noted above, this is essentially a matter involving the right to function as a Manager of an educational institution. The educational agency in this case being a corporate educational agency, the right of a person to be a Manager of the School under the educational agency has to be determined in terms of the trust deed which functions as the basic document which determines the rights of the parties thereunder. In the instant case, there is no dispute that as per the trust deed, the petitioner was appointed as the Manager of the School for a life tenure. No doubt, the terms of the trust deed also empower the other trustees to remove the Managing trustee and the Manager of the School from his post subject to compliance with the procedure contemplated under the trust deed. The issue in this case is whether the said procedure was, in fact, complied with. While the petitioner would vehemently deny the service of any notice on him as contemplated in the trust deed, respondents 4 and 5 would maintain **W.P.(C).No.141/2010** **6** that such a notice was in fact served and the decision to remove the petitioner was taken thereafter after complying with the necessary formalities. In such a situation, I am of the view that the educational authorities when confronted with an application for change in management ought to have, at least prima facie, considered whether the alleged ouster of the petitioner from the post of Manager was done after due compliance with the procedure stipulated under the trust deed. The said issue does not appear to have engaged the attention of either the 3[rd] respondent or the 2[nd] respondent. That apart, although the 3[rd] respondent takes a view in favour of the petitioner and rejects the request of the 4[th] respondent for approval of the change in management, Ext.P9 order of the 2[nd] respondent, in an appeal against the order of the 3[rd] respondent, is wholly ambiguous when it states, without any reason whatsoever, that it is established without any doubt that the 4[th] respondent is the Manager of the educational institution. I am of the view that a decision by the educational authorities must disclose the reasons on the basis of which they find in favour of one or the other party as regards his eligibility to hold the post of Manager. The burden is more severe on **W.P.(C).No.141/2010** **7** the 2[nd] respondent, who functions as an appellate authority, to disclose reasons as to why he considered the order of the lower authority to be erroneous, and therefore chose to deviate from the findings of the lower authority. As already noted, in this case neither the 3[rd] respondent, nor the 2[nd] respondent in appeal, have furnished any convincing reasons, in their respective orders, to support the findings arrived at therein. Under these circumstances, I do not think that the said orders can be sustained, and, I accordingly quash both Ext.P2 order of the 3[rd] respondent and Ext.P9 order of the 2[nd] respondent so as to enable the 3[rd] respondent to have a fresh consideration of the application, preferred by the 4[th] respondent before him, for approval to a change in the personnel of the Manager of the School in question. The 3[rd] respondent shall take a fresh decision in the matter after hearing the petitioner as well as the 4[th] and 5[th] respondents and after considering the materials made available before him to establish that there has been a valid removal of the petitioner as the Managing trustee of the trust as also the Manager of the School in terms of the procedure contemplated under the trust deed. The 3[rd] respondent is reminded that his duty under the **W.P.(C).No.141/2010** **8** provisions of the Kerala Education Rules is only to prima facie convince himself of the compliance with the procedure under the trust deed for removal of the petitioner as a Manager of the School. If the issue is one that necessitates a formal adjudication by a competent civil court, then the 3[rd] respondent shall keep in mind the principles enumerated by this Court in the decision reported in **Abdul Rahim v. State of Kerala and Others [1984 KLT 773]** , while deciding on an appropriate course of action. Pending a decision by the 3[rd] respondent, the petitioner shall continue to function as the Manager of the School in question. 6. Before parting with the case, I feel that considering the rivalry that has been projected in this case between the petitioner and respondents 4 and 5, who are brothers, it would be in the best interest of the parties to try and settle the issues between them through mediation instead of attempting recourse to civil litigation which is bound to consume lot of their time and effort. To facilitate a mediation between the parties, the petitioner and respondents 4 and 5 shall approach the Kerala Mediation Centre, High Court Complex, **W.P.(C).No.141/2010** **9** Ernakulam, on 27.8.2014 to explore this possibility. The hearing before the 3[rd] respondent, as stated in the earlier paragraph of this judgment, shall take place on 4[th] , 5[th] or 6[th ] of November, 2014 so as to give sufficient time to the parties to try and settle their differences through mediation in the meanwhile. If the matter remains unresolved even by the end of October, 2014, the 3[rd] respondent shall proceed with the hearing as directed above and pass orders in the matter within a period of one month from the date of the hearing. With these directions, the writ petition is disposed. ## **A.K.JAYASANKARAN NAMBIAR JUDGE** prp