W.A. Nos.1738, 1747 & 1821 of 2017

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **THURSDAY, THE 31ST DAY OF AUGUST 2017/9TH BHADRA, 1939** **WA.No. 1738 of 2017 () IN WP(C).12954/2017 --------------------------------------------** **AGAINST THE ORDER/JUDGMENT IN WP(C) 12954/2017 of HIGH COURT OF KERALA DATED 03-08-2017** **APPELLANT(S)/ADDL 4 TH RESPONDENT:** **---------------------------------** **UMMER P.K AGED 52 YEARS S/O.KOYAKKUTTY PANS HOUSE PAYYOLI.P.O.,KOILANDI, KOZHIKODE DISTRICT** **BY ADVS.SRI.ABRAHAM MATHEW (VETTOOR) SMT.BINI ELIZABETH SRI.ANIL ABEY JOSE** **RESPONDENT(S)/PETITIONER AND RESPONDENTS 1-3:** **---------------------------------------------** **1. JALEEL M.K TUNES INDIA FOUNDATION, NADUVANNUR, MANNANKAVU P.O. KOZHIKKODE** **2. STATE OF KERALA** - **REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695 001** **3. THE DIRECTOR OF PUBLIC INSRUCTIONS OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM- 695 001** **4. THE ASSISTANT EDUCATIONAL OFFICER PERMBRA, KOZHIKODE- 673 525** **R BY GOVERNMENT PLEADER AJ VARGHESE R BY SRI.P.C.SASIDHARAN** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 31-08-2017, ALONG WITH W.A.NOS,1747/2017 & 1821/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **kkj** **K.SURENDRA MOHAN & MARY JOSEPH, JJ. --------------------------------------------W.A. Nos.1738, 1747 & 1821 of 2017 ---------------------------------------------Dated this the 31[st] day of August, 2017** ## **J U D G M E N T** ## Surendra Mohan, J. These three appeals are directed against the common judgment of the learned Single Judge dated 03.08.2017 finally disposing of WP(C) Nos.12954 of 2017 & 23434 of 2017. The dispute in these cases relate to the right to manage an aided school, namely the Neduvannoor South AMUP School (hereinafter referred to as 'the School' for short). 2. The school in these cases was functioning and it is alleged that it was on the verge of being closed down for want of sufficient infrastructural facilities. At that point of time, the ownership and management of the school and its properties were transferred to a Trust. After such transfer, the Trust is stated to have expended more than 60,00,000/-₹ towards modernising the facilities in the school. Accordingly, it is stated that the school has been -:2:- ## W.A. Nos.1738, 1747 & 1821 of 2017 modernised and is at present functioning well. 3. After the transfer of the school, an application was submitted for change of managership of the school, involving change of ownership. The said application is evidenced by exhibit P1 in W.P.(C) No.12954 of 2017, which is treated as the leading case. However, as per exhibit P2 order, the Director of Public Instructions rejected the application. Two reasons are stated in exhibit P2. The first reason is that there are liabilities on the Headmaster and the approved Manager of the School. The second reason is that, there is a civil suit pending before the Munsiff's Court, Quilandy in respect of the property of the school. Exhibit P2 was the subject matter of challenge before the Government in an appeal jointly preferred by the approved Manager as well as the representative of the Trust that had acquired ownership of the school as stated above. Since the appeal was not disposed of expeditiously, this Court was approached through a Writ Petition and as per exhibit P5 -:3:- ## W.A. Nos.1738, 1747 & 1821 of 2017 judgment, the Government was directed to consider and dispose of the appeal within a stipulated time. Accordingly, the appeal was considered and finally disposed of by exhibit P6 order. The appeal filed by the approved Manager and the transferee of the school was rejected. The said order was under challenge in W.P.(C) No.12954 of 2017 at the instance of the transferee Manager. During the pendency of the Writ Petition, additional 4[th] respondent got himself impleaded, claiming to be a member of the family that owned the school and contested the Writ Petition. He also filed a separate Writ Petition, W.P.(C) No.23434 of 2017 seeking a direction permitting the approved Manager of the School to continue in managership thereof. In addition, a direction restraining the transferee from interfering with the functioning of the school as well as a declaration that the transfer was invalid were sought for as ancillary reliefs. Both the Writ Petitions were considered by the learned Single Judge and disposed of by the common judgment W.A. Nos.1738, 1747 & 1821 of 2017 -:4:- appealed against. 4. The learned Single Judge has found that exhibit P6 order of the Government was unsustainable. Therefore, the same has been set aside and a direction has been issued to consider the entire matter afresh. Fresh orders are directed to be passed after hearing all the interested parties, within a period of two months of the date of receipt of a copy of the judgment. In the meantime, since there was dispute regarding the right to manage the school and its properties, the Assistant Educational Officer, Perambra has been directed to function as the Manager till final orders are passed by the Government in compliance with the direction of this Court. It is aggrieved by the said direction that these appeals are filed. 5. W.A.No. 1747 of 2017 is filed by the petitioner in W.P.(C) No.12954 of 2017. The petitioner in WP(C) No.23434 f 2017 has filed W.A.No.1821 of 2017, aggrieved by the disposal of the Writ Petition. W.A.No.1738 of 2017 is -:5:- ## W.A. Nos.1738, 1747 & 1821 of 2017 filed against the disposal of the Writ Petition. W.A.No.1738 of 2017 is filed against the disposal of W.P.(C) No.12954 of 2017. Since common issues are involved, the appeals are heard and disposed of together. 6. According to Advocate P.C.Sasidharan who appears for the appellant in W.A.No.1747 of 2017, the school was taken over by the Trust represented by his client, in a situation where it was on the verge of being closed down. The transfer of the school was for valid consideration. After the school was purchased, the Trust represented by him has invested substantial amounts and undertaken additional constructions, with the object of modernising the school. Additional facilities have also been provided. The projects so initiated are in the process of execution. However, as per the judgment of the learned Single Judge his client has been excluded from the managership of the school. Such exclusion, according to the learned counsel would stall the ongoing projects that -:6:- ## W.A. Nos.1738, 1747 & 1821 of 2017 are being implemented. The money that has been already invested would also go to waste. It is contended that, a proper and efficient management of the school is necessary at its present stage. His client has been in management of the school from 2015 onwards. During the pendency of the Writ Petition filed by him also he was continuing as the Manager on the strength of an interim order passed by this Court. Therefore, it is contended that there is no justification for the direction of the learned Single Judge that the Assistant Educational Officer shall be the Manager of the School. Though it is contended that he has no objection to the direction issued to the Government to consider the matter afresh, he seeks interference with the judgment of the learned Single Judge for permitting him to be in management of the school. The counsel places reliance on the decisions of this Court in **P.V.John v. Director of Public Instruction** [ILR 1975(2) Kerala 605] and **Kottayath Thekkekovilakath Sree Ranjini Amma** -:7:- ## W.A. Nos.1738, 1747 & 1821 of 2017 **Raja v. Padmini Kettilamma** [2016(3) KLT 526] to contend that, Section 6 of the Kerala Education Act, 1958 does not interdict transfer of a running school along with its properties. Therefore, it is contended that there cannot be any objection to the grant of approval to the transferee Manager under Chapter 3 of the Kerala Educational Rules, 1959 (KER for short). 7. Advocate Abraham Mathew Vettoor who appears for the appellant in W.A.Nos.1738 of 2017 and 1821 of 2017 contends that the 8[th] respondent in W.A.No.1821 of 2017 being the approved Manager of the school, is the person who is legally competent to continue as the Manager until the matter is finally decided by the Government in accordance with the direction of the learned Single Judge. The learned counsel has also no objection to the direction for a fresh consideration of the entire issue by the Government. The objection is limited to the direction of the learned Single Judge that the Assistant Educational Officer -:8:- ## W.A. Nos.1738, 1747 & 1821 of 2017 shall function as the Manager. According to the learned counsel, since the transfer of the school in favour of the appellant in W.A.No.1747 of 2017 was not made in compliance with the stipulation contained in the KER, the transfer was only null and void. For the above reason, the transferee cannot stake any claim to the managership of the school on the basis of the document that has been executed in his favour. The counsel places reliance on the decision in **Roopa v. State of Kerala** [2014 (1) KLT 483] to contend that prior permission as mandated by Section 6 of the Act is a condition precedent for a valid transfer of school and its properties. In the absence of such permission, the transfer is null and void. It is further pointed out by the counsel that, the school and its properties originally belonged to his family. The approved Manager is his brother. He had no authority to transfer the school in violation of the rights of the other co-owners of the property. In view of the above, a suit has been filed which -:9:- ## W.A. Nos.1738, 1747 & 1821 of 2017 is pending as O.S.No.204 of 2015 before the Munsiff Court, Quilandy. In the said suit, an order of injunction against alienating the properties had been issued against the approved Manager on 25.06.2015. A copy of the order in I.A.No.761 of 2015 is produced as exhibit P3 in W.P.(C) No.23434 of 2017. The transfer on the basis of which rights are claimed by the transferee is therefore in violation of the interim order also. It is therefore contended that the 8[th] respondent in W.P.(C) No.23434 of 2017 being the approved Manager of the school is the rightful person to be directed to continue in management thereof, until the Government takes a decision in the matter. 8. Heard. These appeals come up before us for admission. As already noticed above, there was a transfer of the school and its properties by the approved Manager in favour of the appellant in W.A.No.1747 of 2017. However, approval of such transfer was declined by the Director of Public Instructions. It was against the said rejection that ## -:10:- ## W.A. Nos.1738, 1747 & 1821 of 2017 the Government was moved in appeal, that was disposed of by exhibit P6 order in W.P.(C) No.12954 of 2017. We have perused the said order exhibit P6. As rightly noticed by the learned Single Judge, the procedure that was adopted at the hearing is unsustainable for the reason that, the transferee Manager, the AEO as well as the Director of Public Instructions were heard on 10.01.2017. Thereafter, it has been recorded that on 19.01.2017, the person who is the appellant in W.A.No.1821 of 2017 and 1738 of 2017 was also heard. The other parties had no notice of the said hearing. Nor were they were put on notice regarding the contentions put forward by the said persons. Therefore, the learned Single has rightly found that exhibit P6 was unsustainable. We find no reason to take a different view of the matter. 9. The other question that survives is whether the direction to the AEO to be in the management of the School until the issue is finally decided by the Government is liable ## -:11:- W.A. Nos.1738, 1747 & 1821 of 2017 to be interfered with or not. We notice that there is a dispute regarding the right to managership of the school. The 8[th] respondent in W.P.(C) No.23434 of 2017 though was the approved Manager, is alleged to have transferred the school and its properties without any authority to the appellant in W.A. No.1747 of 2017. Therefore, the said transfer has been challenged in an original suit, O.S.No.204 of 2015 pending before the Munsiff's Court, Quilandy. The question as to whether the transfer on the basis of which rights are claimed by the appellant in W.A.No.1747 of 2017 is valid or not would depend upon the outcome of the said suit. With respect to the claim made by the said person who is the transferee of the school, there are other hurdles also, whether his claim to be the Manager of the school would be approved or not would depend on the decision that the Government is directed to take by the learned Single Judge. At the same time, the 8[th] respondent in W.P.(C) No.23434 of 2017 is a person against whom the allegations of transfer of -:12:- ## W.A. Nos.1738, 1747 & 1821 of 2017 the property in violation of order of temporary injunction passed by the Civil Court as well as in violation of the rights of other owners of the property is pending consideration of the Civil Court. Therefore, we are not satisfied that the said person should be permitted to continue in management of the school. In the above circumstances, the only person who could be permitted to be in management of the school is the AEO, who is disinterested in the disputes that are pending consideration of the Government as well as the Civil Court. In view of the above factual scenario, we are of opinion that the learned Single Judge was right in directing the AEO to be in management of the school, until the Government decides the matter one way or the other. We notice that the learned Single Judge has directed the Government to consider and finally dispose of the appeal within a period of two months of the date of receipt of a copy of the judgment. The parties shall abide by the decision to be taken by the -:13:- W.A. Nos.1738, 1747 & 1821 of 2017 Government in accordance with the said direction of the learned Single Judge. In the above view of the matter, these appeals are dismissed. **Sd/-** **K.SURENDRA MOHAN JUDGE** **SdMARY JOSEPH JUDGE** kkj