The Manager, M.T.M. Higher Secondary School v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN THURSDAY, THE 14TH DAY OF JANUARY 2016/24TH POUSHA, 1937 WP(C).No. 20470 of 2015 (G) ---------------------------- PETITIONER: -------------------------- THE MANAGER, M.T.M. HIGHER SECONDARY SCHOOL AGED 59 YEARS PAMBAKKUDA, MUVATTUPUZHA. BY ADVS.SRI.KURIAN GEORGE KANNANTHANAM (SR.) SRI.TONY GEORGE KANNANTHANAM SRI.THOMAS GEORGE RESPONDENT(S): ---------------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEX THIRUVANANTHAPURAM - 695 001. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS TRIVANDRUM - 695 001. 3. THE DISTRICT EDUCATIONAL OFFICER MUVATTUPUZHA - 686 667. 4. RIYA MARY MONCY W/O. GIJI MON, CHANDRATHIL HOUSE, PAMPAKUDA P.O. ONAKKOOR VILLAGE - 686 667. R1-R3 BY ADV. GOVERNMENT PLEADER SMT M J RAJASREE R4 BY ADV. SRI.V.PHILIP MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 20470 of 2015 (G) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXT.P1 - TRUE COPY OF THE UDUMPADI BETWEEN THE MEMBERS OF THE MANAGING BOARD OF THE SCHOOL. EXT.P2 - TRUE COPY OF THE JUDGMENT DT. 30.10.14 IN WPC NO. 30159/2007 OF THIS HON'BLE. EXT.P3 - TRUE COPY OF THE ARGUMENT NOTES DT. 18.4.15 SUBMITTED BY THE COUNSEL FOR THE PETITIONER. EXT.P4 - TRUE COPY OF THE ORDER DT. 30.5.15 ISSUED BY THE 2ND RESPONDENT. RESPONDENT(S)' EXHIBITS --------------------------------------- EXT.R4(A) : TRUE COPY OF THE LETTER DATED 13.08.2015 BY MR. K.P PAUL, MEMBER BOARD OF MANAGEMENT MTM HSS PAMBAKUDA EXT.R4(B) : TRUE COPY OF THE JUDGMENT DATED 7.11.2003 IN O.P NO.12957/2001 FILED BY SUMU MONCY EXT.R4(C) : TRUE COPY OF THE LETTER DATED 26.12.2001 FROM THE PETITIONER TO THE MOTHER OF 4[TH] RESPONDENT REJECTING MOTHER'S CLAIM FOR INCLUSION IN THE MANAGING BOARD EXT.R4(D) : TRUE COPY OF THE REPRESENTATION DT 11.06.2007 TO THE 2[ND] RESPONDENT FROM THE 4[TH] RESPONDENT EXT.R4(E) : TRUE COPY OF THE LETTER DT 22.06.2007 FROM THE DEO, MUVATTUPUZHA TO THE BROTHER OF THE 4[TH] RESPONDENT EXT.R4(F) : TRUE COPY OF THE LETTER DT 30.6.2007 FROM THE DEO, MUVATTUPUZHA TO THE 4[TH] RESPONDENT EXT.R4(G) : TRUE COPY OF THE COUNTER AFFIDAVIT DT 22.09.2010 FILED BY THE PETITIONER IN WPC NO. 30159/2007 EXT.R4(H) : TRUE COPY OF THE NOTE FILED BY THE 4[TH] RESPONDENT BEFORE THE SECOND RESPONDENT AT THE TIME OF HEARING TRUE COPY P.A TO JUDGE jma ## K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No. 20470 of 2015 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14[th] day of January, 2016 ## J U D G M E N T The petitioner is the Manager of an aided school, who challenges Ext.P4 order of the Director of Public Instructions directing inclusion of the 4[th] respondent in the Managing Committee, which going by the terminology employed in the Kerala Education Rules (for short “KER”) has to be understood as the educational agency. The questions raised commend the brief narration of the history of the school and the history of the litigation with respect to the present controversy. 2. The school is said to have been started by a Priest, in the property owned by him. Presumably due to the difficulties in managing the school by himself, Ext.P1 ഉടമട� (deed) was executed wherein he included six others in the Managing Committee for effective management of the school. Ext.P1 is of the year 1123 M.E when even the State of Kerala had not come into existence, and is a WPC.No.20470/2015 : 2 : registered document. The school had been managed by the said Priest and the six persons sitting together in a committee as mandated in Ext.P1 deed and devolution of interest of each of the seven members also worked in accordance with the provisions therein. Ext.P1 deed indicates such devolution to be on the basis of law of succession, with a right conferred on the trustee, to transfer his rights in his lifetime; subject to conditions. So much for the history of the school relevant for the present case. 3.The history of the litigation has its origin in the death of one Moncy C Chinnakkutty, who as the legal heir of one Chinnakkutty C George, one of the parties to Ext.P1, came to the Committee. The said Managing Committee member died on 16.10.1997 leaving behind his widow, one son and a daughter; another son having pre-deceased him. The surviving son had staked a claim to be included in the Managing Committee, which was resisted by the other Managing Committee members for WPC.No.20470/2015 : 3 : reason of his alleged antecedents including conviction in criminal cases. Though arguments have been addressed by both sides on the said issue, it does not arise for consideration for reason of the said claim having been negatived by a decision of the Division Bench of this Court reported in 2002(3) KLT 896 (Manager M.T.M High School v. Director of Public Instruction). The inclusion of the said person in the Managing Committee was found to be against the provisions of sub rule (3 A) of Rule 8 of Chapter III of the KER, and the said decision has attained finality. 4. On the son having been denied inclusion in the Managing Committee, the mother, the widow of the deceased Managing Committee member raised a claim for inclusion. An Original Petition was filed which was disposed of by a Division Bench by judgment dated 07.11.2003, produced at Ext.R4(b). The Management in defense of the Original Petition raised a contention that the rights under the deed cannot be enforced WPC.No.20470/2015 : 4 : though proceedings under Article 226 of the Constitution of India and that the remedy is only before the Civil Court. The widow, who was the petitioner therein, hence sought withdrawal of the original petition and she was left to agitate the cause before the appropriate authority in the department or in the Civil Court. Admittedly no such cause was agitated before the Department or before the Civil Court. Subsequently the surviving daughter raised the present claim which has resulted in the aforesaid litigation which is preceded by a litigation concluded with Ext.P2. 5. The 4[th] respondent, the surviving daughter, staked her claim as a legal heir of the deceased Managing Committee member. The 4[th] respondent also produced the relinquishment letters of her brother and mother. The 4[th] respondent sought that she be included in the vacancy arising on the death of her father, in the Managing Committee. The same was considered by a learned Single Judge of this Court by Ext.P2. The remedy was left WPC.No.20470/2015 : 5 : before the educational authority or the Civil Court, as had been directed by the Division Bench, when the widow had come before this Court with an identical claim. Since a representation was filed before the DPI., this Court by Ext.P2 also directed consideration of the claim by the DPI which has been done as per Ext.P4, which order is impugned herein. 6. The issues raised are the maintainability of the writ petition for reason of the petitioner having not obtained a consent from the Managing Committee, to file a writ petition and the admissibility of the enforcement of the right flowing from the deed in a proceeding under Article 226. The issue with respect to the Manager having not obtained authorization from the Managing Committee, has been vigorously urged by the learned counsel for the 4[th] respondent, pointing out that there is in existence only two members actively participating in the Committee, which is denied by the learned Senior Counsel WPC.No.20470/2015 : 6 : appearing for the petitioner. The 4[th] respondent also has produced Ext.R4(a); a communication from one of the Managing Committee members agreeing to the 4[th] respondent's appointment as a member, succeeding the deceased member. It is also urged that if a full Managing Committee is held then, there would be a majority in the petitioner's favour or at least a division which would enable the educational authority to exercise its powers as per clause 16 of the Ext.P1 deed. 7. The preliminary question raised of authorization, is to be considered on the basis of the statutory powers conferred on the Manager by the Kerala Education Act (for brevity 'the Act') and the KER. Section 7 of the Act, speaks of the appointment of a Manager by an educational authority, who would be responsible for the overall conduct of the school in accordance with the provisions of the Act and the rules framed. Rule 3 of Chapter III, KER speaks of vesting of management of the school in the WPC.No.20470/2015 : 7 : Manager appointed by the Educational agency,who shall be responsible to the department for the management of the Institution. Rule 9 of Chapter III of KER also refers to the duty and powers of manager of an aided school and the provisions read together would indicate that there is no separate authorization required for the Manager to file the aforesaid writ petition. It is also to be noticed that the Manager is one of the members of the Managing Committee and he could, in his personal capacity also, be entitled to file a writ petition against the order of the educational authority wherein an inclusion into the Managing Committee is directed. In such circumstance, the preliminary objection raised on behalf of the 4[th] respondent is found to be not tenable or sustainable. 8. The next question is as to the eligibility of the 4[th] respondent to be included in the Managing Committee and the power of the educational authority to look into whether such WPC.No.20470/2015 : 8 : inclusion is possible. True, the Division Bench judgment in the case of the widow of the deceased management committee member and the learned Single Judge, in the case of the 4[th] respondent herself, had directed the respective petitioners to approach the appropriate authority in the Department or the Civil Court. The mere direction to approach the appropriate forum, with specific reference to the department, would not confer jurisdiction on the Department, if there is no such jurisdiction conferred under the statute. There is also no finding either in Ext.R4(b) or Ext.P2 as to the Department or the educational authorities being conferred with the power to consider the issue. In Ext.P2 judgment this Court had merely directed consideration of the representation and the question whether the consideration was permissible under the statute could definitely be urged by the affected parties, before the authorities. 9. On the question of jurisdiction of the educational WPC.No.20470/2015 : 9 : authority, one has to look at the terms of the deed as also the provisions in the Act and KER,the former of which has been specifically pointed out by the learned counsel appearing for the 4[th] respondent. The educational authority too filed a counter affidavit contending that such power is derived from Rule 4 (1) and Rule 5 (1) of Chapter III of KER. Rule 4 (1) speaks of approval of appointment of Managers, who have been appointed by the Educational agencies and the power to approve the change in the personnel of the Managers. Rule 5(1) again speaks of change in the personnel of the managers of the aided institutions and the requirement to immediately report such change to the educational officer and the approval to be obtained. 10. A reading of the provisions of the KER would indicate that the manager and the educational agency are considered as distinct and different entities. The educational agency appoints a person and authorize him to function as WPC.No.20470/2015 : 10 : manager and correspondent having overall control of the day to day affairs of the aided school and the person entitled to correspond with the educational authorities. The constitution of the educational agency as such is not a matter coming within the Act or the statute and it would have to be decided on the legal status of the agency and the individual rights of the persons as per the laws of succession or otherwise, to be included as a member of the agency, which has to be enforced before the competent Civil Courts and the educational authority could have no say in such matters. In this context, reference again can be made to sub rule (3A) of Rule 8 of Chapter III of KER wherein a disability is cast on the manager and the member of the Managing Committee, both specifically referred to, again supporting the finding, of there being a definite distinction between both. But for the disability cast on a member of the Managing Committee, there is no other provision in the Act or Rules specifying the constitution of a WPC.No.20470/2015 : 11 : Managing Committee or the power being conferred on the educational authorities, to decide on such questions. It is trite and it is supported by a number of precedents that such civil rights of devolution of rights or succession or otherwise taking over the management of a school or inclusion in the managing body would be a question which has to be agitated before the Civil Court. 11. The provisions of the deed pointed out by the 4[th] respondent are clauses 16, 22, 28 and 29. Clause 16 deals with the equal division, on the decision on any matter concerned with the school wherein the Director of Education or the Inspector (as it existed then) would have conferred, the powers, to decide on the issue. Clause 22 makes the functioning of the school subject to the orders and decisions passed by the Government. Clause 28 notices that the deed has been sent to the government and the government having approved the same; it is to be noticed immediately, without reference to any statutory requirement for so WPC.No.20470/2015 : 12 : doing. Clause 29 refers to amendments to be made only on all the committee members being agreeable. Clause 12 also deals with the quorum of members. 12. True, on there being no quorum, the decision of the Managing Committee cannot be said to be a valid one and if there is an equal division between the members, there could also be a power conferred on the educational authority to decide on the issue. However, none of these instances have occurred in the present case, and the ascertaining of such issues, if at all, would fall within the realm of resolution of factual disputes; which this court is disabled from doing merely on the basis of the assertions and counter-assertions made on affidavit. The said argument is raised on behalf of the 4[th] respondent only in the context of the petitioner having resisted the inclusion of the 4[th] respondent on the ground that the rights as per the deed would have to be exercised by the 4[th] respondent in a proper Civil Court. That would have to be agitated WPC.No.20470/2015 : 13 : before a proper civil Court having jurisdiction. 13. In this context, the interpretation of Clause 5 dealing with inclusion of members, on the death of one of the Managing Committee members, assumes significance. Clause 5 deals with the devolution of membership and inclusion of the legal heirs or others on the death of a member. A member during his life time could transfer his right of being included in the Managing Committee, to one of his legal heirs even without the consent of the other Managing Committee members. However, if the member desires to transfer such right to an outsider, then, such transfer could be made only with the consent of the other Managing Committee members. A member, on dying interstate; the eldest among the legal heirs would be entitled to be conferred the status of inclusion in the Managing Committee. There is considerable dispute as to whether a female heir, if the eldest among all the legal heirs could be included, going by the gender WPC.No.20470/2015 : 14 : used in the deed (ഒന�മന), which need not be considered now, as it will be presently noticed. 13. It is argued that even the present Manager was included in the Managing Committee, though he was not the eldest among the legal heirs of the deceased member. There are already women included in the Managing Committee, who have been so included without reference to their gender; but on their status of a legal heir alone, is the further plea. An elder or the eldest could definitely pass on the right to another heir or any of his legal heirs as permissible in the deed itself. Hence the inclusion of a younger heir, as the Manager, cannot help the case of the petitioner. However admittedly there are female legal heirs in the Committee and for the present it can be safely assumed that a woman who is the eldest among the legal heirs could also be included. Definitely if such a view is taken, the eldest among the legal heirs of the deceased Moncy C Chinnakkutty, is WPC.No.20470/2015 : 15 : the widow, Sumu. The said person had staked her claim and agitated her cause before this Court, in an Original Petition, which was withdrawn as is evidenced from Ext.R4(b) judgment. This Court left her the remedy to approach the appropriate authority in the Department or the Civil Court. The said person has not approached either the Department or the Civil Court as of now. This Court, herein, has also found that the Department would not be entitled to consider the issue of inclusion in the Managing Committee. 14. Going by clause 5, a person who is to be included in the Managing Committee could definitely pass on such right to another legal heir, in his/her life time, even without the permission of the Managing Committee members. The 4[th] respondent contends that her right arises from the relinquishment made by her mother, the eldest and even if the male member is to be considered, the brother, who also has relinquished his right in her WPC.No.20470/2015 : 16 : favour. For relinquishment to be effective, first of all the right should be established. Though a committee member could in his or her life time, pass on his/her right to another legal heir, here the right of the brother stood negatived by the afore-cited decision and the right of the mother is still in a flux insofar as this Court had relegated her to the alternate remedy available. Without having established such right and without having been included in the Managing Committee, the mother could not have transferred her rights to the daughter. The relinquishment made, if at all could only be considered as a transfer of right to be included in the Managing Committee as per the provisions of Ext.P1 deed. The right itself having been not established, there could be no relinquishment or transfer made. 15. In such circumstance, the 4[th] respondent does not have a claim as of now, to be included in the Managing Committee for reason of she being, not a person, who is entitled by the WPC.No.20470/2015 : 17 : provisions of the deed, to be included in the managing committee. For reason of the lack of jurisdiction and for reason of the 4[th] respondent being, at present, not competent to be included in the committee, the order of the educational authority cannot be upheld. Writ petition is allowed setting aside Ext.P4 order. It is made clear that this Court has not made any observation as to the rights of the petitioner's mother, which had been relegated to be established before the alternate forum; by the Division Bench in Ext.R4(b). Writ petition would stand allowed. Parties would be left to suffer their respective costs. Sd/- - (K. VINOD CHANDRAN, JUDGE) jma //true copy// P.A to Judge