W.P.(C) Nos. 3270/2008 (L) & 3441/2008 (Kerala): Babu Paul Perumpillil v. State of Kerala; St. Peter's and St. Paul’s Orthodox Syrian Church, Kolencherry v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN** **TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930** **WP(C).No. 3270 of 2008(L)** **-------------------------------------** **PETITIONER:** - **------------------** **BABU PAUL PERUMPILLIL, S/O.LATE P.M.PAILY PILLAI, CORPORATE MANAGER, ST.PETER'S HIGH SCHOOL & TRAINING SCHOOLS, KOLENCHERY.** ## **BY ADV. SRI.GEORGE POONTHOTTAM** **RESPONDENTS:** **------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** ## **2. THE DISTRICT EDUCATIONAL OFFICER, ALUVA.** **3. SRI.POULOSE P.KUNNATH, KUNNATH HOUSE, AIKKARANADU SOUTH VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT.** ## **ADDL. 4TH RESPONDENT IMPLEADED.** **4. SINDHU K.T., PRINCIPAL INCHARGE, ST.PETER'S VOCATIONAL HIGHER SECONDARY SCHOOL, KOLENCHERRY.** **ADDL. R4 IS IMPLEADED AS PER ORDER DT.5.8.2008 IN IA. NO.9201/2008.** **ADV. SRI.M.K.DAMODARAN (SR.) FOR R3 SRI.S.SHYAM FOR R3 SRI.SAJI VARGHESE KAKKATTUMATTATHIL FOR R3 SRI.N.SUKUMARAN FOR R3 GOVERNMENT PLEADER SMT.ANU SIVARAMAN FOR R1 & R2 SRI. GEORGE VARGHESE KANNANTHANAM FOR ADDL. R.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/08/2008, ALONG WITH WPC NO. 3441 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C) NO.3270/2008** ## **APPENDIX** ## **PETITIONERS EXHIBITS** ## **EXT.P1:- COPY OF THE APPOINTMENT ORDER DT. 30.5.06 APPROVING THE APPOINTMENT AS CORRESPONDENT.** **EXT.P2:- COPY OF THE COMMUNICATION DT. 10.5.2007.** **EXT.P3:- COPY OF THE ORDER DT. 10.5.07 APPROVING THE APPOINTMENT AS CORRESPONDENT .** **EXT.P4:- COPY OF THE COMMUNICATION DT. 15.6.07.** **EXT.P5:- COPY OF THE COMMUNICATION DT. 5.7.2007 GIVEN TO THE PRINCIPAL OF ST.PETER'S HIGHER SECONDARY SCHOOL.** **EXT.P6:- COPY OF THE ORDER NO.B1-2362/2007 DT. 1.8.07.** **EXT.P7:- COPY OF THE REVISION DT. 3.8.07 FILED BEFORE THE GOVERNMENT.** **EXT.P8:- COPY OF THE JUDGMENT IN WPC. NO.30908/2007 DT. 26.11.2007.** **EXT.P9:- COPY OF THE G.O.(RT) NO.484/08/G.EDN. DT. 24.1.2008.** **EXT.P10:- COPY OF THE HEARING NOTE OBTAINED ON APPLICATION UNDER THE RIGHT TO INFORMATION ACT.** **EXT.P11:- COPY OF THE ORDER IN WP.C. NO.27023/07 DT. 12.9.2007.** **EXT.P12:- COPY OF THE POWER OF ATTORNEY DT. 30.5.2006.** **EXT.P13:- COPY OF THE ORDER NO.ET4-65850/2000/DPI/D.DIS DT. 25.10.2000.** **EXT.P14:- COPY OF THE ORDER IN CMP. 55811/2000 IN OP. 32711/2000 DT. 22.11.2000.** **EXT.P15:- COPY OF THE ORDER IN CMP. 57796/00 IN OP. 33818/2000 DT.1.12.2000.** **EXT.P16:- COPY OF THE ORDER NO.B1-11418/2000 DT. 27.12.2000.** **EXT.P17:- COPY OF THE APPROVAL OF THE CONSTITUTION OF THE EDUCATIONAL AGENCY UN DER RULE 2 OF CHAPTER III KER.** ## **RESPONDENT'S EXHIBITS** **EXT.R3(a):- COPY OF THE PROCEEDINGS NO.2615/98 DT. 23.3.07 OF THE SUB DIVISIONAL MAGISTRTE, MUVATTUPUZHA.** **EXT.R3(b):- COPY OF THE MINUTES OF THE GENERAL BODY OF THE CHURCH HELD ON 8.7.2007.** ## **W.P.(C) NO.3270/2008** ## **EXT.R3(c):- COPY OF THE LETTER OF ST.PETER'S AND ST.PAUL'S ORTHODOX SYRIAN CHURCH DT. 13.7.2007 REGARDING CHANGE OF MANAGEMENT.** **EXT.R3(d):- COPY OF THE APPEAL SUBMITTED BY THE DEPONENT BEFORE THE DIRECTOR OF PUBLIC INSTRUCITON DT. 4.8.07 AGAINST THE ORDER OF DISTRICT EDUCATIONAL OFFICER, ALUVA DT. 1.8.07.** **EXT.R3(e):- COPY OF THE REPRESENTATION DT. 21.1.08 BEFORE THE DIRECTOR OF PUBLIC INSTRUCTION** **EXT.R3(f):- COPY OF THE ORDER NO.B1-2362/07 DT. 28.1.08 OF THE 2ND RESPONDENT.** **EXT.R3(g):- COPY OF THE ORDER NO.B1-11418-2000 K.DIS. DT. 27.11.2000 OF THE DISTRICT EDUCATIONAL OFFICER, ALUVA.** **EXT.R3(h):- COPY OF THE ORDER DT. 19.3.2008 IN WRIT APPEAL NO.450/2008.** **EXT.R3(i):- COPY OF THE ORIGINAL SUIT NO.43/2007 FILED BEFORE THE HONOURABLE DISTRICT COURT, ERNAKULAM.** **EXT.R3(j):- COPY OF THE AFFIDAVIT DT. 9.7.2007 IA. 3208/07 IN OS. NO.43/2007 .** **EXT.R3(k):- COPY OF THE ORDER IN IA. 3208/07 OS. NO.43/07 DT. 24.8.07.** **EXT.R3(l):- COPY OF THE AFFIDAVIT DT. 22.8.2007 IA. 3868/07 IN OS. NO.43/2007 EXT.R3(m):- COPY OF THE AFFIDAVIT DT. 22.8.2007 IA.3869/07 IN OS. NO.43/2007.** _**/**_ **TRUE COPY/** ## **P.A. TO JUDGE** **tss** ## **THOTTATHIL B.RADHAKRISHNAN, J.** ------------------------------------------W.P(C).Nos.3270 & 3441 OF 2008 ------------------------------------------Dated this the 5[th] day of August, 2008 ## **JUDGMENT** **“C.R.”** St.Peter's and St.Paul's church, Kolencherry, the petitioner in W.P(C).No.3441/08, runs certain educational institutions governed by the provisions of the Kerala Education Act, 1958, hereinafter referred to as 'the Act', for short, and the Kerala Education Rules, 1959, hereinafter, 'KER', for short. That corporate educational agency is governed by by-laws approved by the department in terms of the provisions of the Act and KER, in terms whereof, management of the educational institutions were being carried on. It appears that the last among the approved managers in office, Sri.Pailly Pillai, died on 1.7.2007. In the meanwhile, Fr.Jacob Kurian submitted a proposal on 10.5.2007 to the District Educational Officer, Aluva, proposing for approval, five members to the governing body of the School Board. Fr.Varghese Edumary and others forwarded a different proposal of five persons, dated 13.7.2007, for the aforesaid WPC.3270/08 & 3441/08 ## Page numbers purpose. In the proposal of Fr.Jacob Kurian, Sri.Babu Paul was stated to have been elected as the manager. The proposal of Fr.Varghese Edumary was for the approval of Sri.Paulose P.Kunnath as the manager. The DEO, for reasons which he has recorded in his order dated 1.8.2007, rejected the appointment of Sri.Paulose P.Kunnath and Sri.Babu Paul. 2. The proposal of Sri.Paulose P.Kunnath as manager was carried in appeal before the Director of Public Instructions in terms of Rule 4 (3) of Chapter III KER, which deals with management of private schools. The refusal to approve the appointment of Sri.Babu Paul as manager was carried directly to the Government, purportedly invoking Rule 92 of Chapter XIV A KER, which deals with conditions of service of aided school teachers. 3. It appears that the appeal placed before the DPI regarding the approval of the managership of Sri.Paulose P.Kunnath was stagnating on account of the pendency of the revision before the WPC.3270/08 & 3441/08 ## Page numbers Government, touching the refusal of approval of Sri.Babu Paul as manager. W.P(C).No.30908/07 was filed before this Court by Fr.Varghese Edumary and Sri.Paulose P.Kunnath. After hearing both sides, this Court directed the Government to consider and pass appropriate orders in the revision petition pending before it. Following that, the Government issued G.O.(Rt).No. 484/08/G.Edn. dated 24.1.2008 (Ext.P9 in W.P(C).3270/08 and Ext.P12 in W.P(C).3441/08) which is impugned in these writ petitions filed by Sri.Babu Paul and by the Vicar of the church. Extensive pleadings are placed on record in support of the challenge; as also in support of the impugned order. Different allegations are thrown by rivals and also against various aspects touching the manner in which the choices were made. The process of decision making by the Government is also impeached on different grounds. The sustainability of the decision contained in the Government Order is seriously questioned, having regard to the various matters reflected by the note file, that led to the said G.O., a copy of which has been obtained by WPC.3270/08 & 3441/08 Page numbers the petitioner in W.P(C).3270/08 under the Right to Information Act and placed therewith as Ext.P10. 4. The DEO, as already noticed, had taken the decision that the requests for approval of either among the two as the manager was being rejected in view of the absence of consensus and because the DEO was of the clear opinion that it was beyond the scope of his authority to decide and resolve any factional dispute between the parties. I may also recall that C.R.P.803/07 is filed challenging the order of the District Court, Ernakulam, granting leave to institute a suit under Section 92 of the Code of Civil Procedure and hearing of that matter stands deferred as of now. 5. Rule 4 of Chapter III deals with approval of appointment of mangers. Sub Rule (3) thereof provides that any person aggrieved by an order of an educational officer under Sub Rule (1) may prefer an appeal to the Director. Sub Rule (4) of Rule 4 provides that the Government may, on their own motion or WPC.3270/08 & 3441/08 ## Page numbers otherwise, revise any order passed by the Director of Public Instructions. The issue in hand is one relating to approval of appointment of managers and falls squarely within Chapter III, which deals with management of private schools. It is not a matter relating to conditions of service of aided school teachers, which fall under Chapter XIV A KER. Therefore, indisputably, no revision under Rule 92 of Chapter XIV A KER would lie against the decision of the DEO. It also needs to be noticed in this context that the manner in which Sub Rules (1), (3) and (4) of Rule 4 of Chapter III is couched would show that the Government would not have a revisional authority, except as against the order of the DPI issued under Sub Rule (3) of Rule 4, in exercise of appellate power, against the decision of the educational officer under Sub Rule (1) of Rule 4. In contradistinction to this, is the provision in Rule 92 of Chapter XIV A KER, which provides an essentially plenary revisional power with the Government to revise any order passed by a subordinate authority. Such power under Rule 92 of Chapter XIV A is not dependent on whether an appellate power has been WPC.3270/08 & 3441/08 ## Page numbers exercised or not. This nice distinction has been noticed by this Court in **Parameswaran Namboothiri** v. **State of Kerala** , O.P.No.3505/01 & Connected cases, decided on 19.6.2001. It also needs to be immediately noticed that Rule 92 of Chapter XIV A KER provides the revisional jurisdiction, as stated therein, only in respect of matters contained in that Chapter. Therefore, it is beyond doubt that in exercise of revisional power under Rule 92 of Chapter XIV A, the Government cannot decide on a matter which falls within Chapter III KER, that is, management of private schools. So much so, the Government did not have jurisdiction to decide on the revision filed before it against a decision of the DEO and therefore, the impugned order is void. It is so declared. 6. It was attempted to be pointed out that the decision of the Government cannot be impeached on the ground as aforesaid, because, that followed the directions of this Court in W.P(C). 30908/07. A perusal of that judgment firstly shows that the direction was only to consider and pass appropriate orders. Stricto senso, there was not even a direction to deal with the WPC.3270/08 & 3441/08 ## Page numbers matter on merits. That apart, in the absence of jurisdiction and when there is a clear compartmentalisation of power between Rule 4 (4) of Chapter III and Rule 92 of Chapter XIV A KER, there is no question of the agreement of parties conferring jurisdiction on the Government or the High Court being presumed to have issued a direction to consider the matter de hors the statutory rules. The absence of jurisdiction cannot be cured by any such procedure. When the court directs consideration of a matter by any authority, including the Government, it can decide that matter only in accordance with law. See **Raveendran** v. **State of Kerala** [2007 (3) KLT 241]. 7. With the aforesaid, needless to say the parties have to stand relegated to the DPI for consideration of the appeal filed by Sri.Paulose P.Kunnath. To secure the ends of justice, it is also necessary that the Government transmits the revision petition filed before it by Sri.Babu Paul to the DPI, to be treated as an appeal in terms of Rule 4 (3) of Chapter III KER, on the strength of this judgment. It shall be so done within five clear WPC.3270/08 & 3441/08 ## Page numbers working days from now. On such remitted matter being received by the DPI, the said officer will hear the parties and take a final decision on the merits and having regard to the entire facts and circumstances. It is so directed. The final decision shall be taken within an outer limit of a fortnight from the date of receipt of a copy of this judgment or a revision from the Government, whichever is latter. To expedite matters, the parties in these writ petitions are directed to appear before the DPI to mark their attendance on 8.8.2008, at 11 a.m., so that the DPI could fix the date for hearing. 8. The aforesaid directions call for consideration of yet another aspect. The note file that led to the impugned Government Order shows that the final decision contained in that order was taken by the Minister for Education in the Government of Kerala. The note file deals with various factual and legal matters. Severe criticism is advanced from both sides to different aspects of the rival claims that fell for consideration in arriving at the impugned G.O. The manner in which the WPC.3270/08 & 3441/08 ## Page numbers Government dealt with the matter is also criticized with different allegations being thrown even against different officers personally. It was also argued that the materials on record do not lead to any order as has been passed by the Minister. In the backdrop of these allegations and the fact that the impugned Government Order has been held to be void, the DPI will ensure that no assistance whatsoever is taken from the note file or from the decision taken by the Government which has been found to be void hereby. It is further directed that the views of the Government, as reflected in the impugned order, shall not weigh with the DPI and shall not be considered in deciding the matter directed to be considered. This is all the more so because the DPI, exercising the statutory power under Sub Rule (3) of Rule 4 of Chapter III KER, has to act as a statutory officer, unguided and uninfluenced by any decision or view of the Government, even if it is of the higher one in the hierarchy of administration. 9. Though the learned counsel for the petitioner in W.P(C). 3270/08 made a fervent plea that there may be some WPC.3270/08 & 3441/08 ## Page numbers adjustments made as to the management in the interregnum, I am of the firm view that all that is required is that the DPI passes orders within the time fixed as above, without fail. These writ petitions are ordered as above. Sd/- **THOTTATHIL B.RADHAKRISHNAN, Judge** kkb.5/8.