Writ Appeals Nos. 1500/2015; 1586/2015; 1624/2015; 2060/2012 (connected cases) – K.C. Valsamma, Jagi A. Jacob and C.A. Chacko v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 20TH DAY OF JUNE 2019 / 30TH JYAISHTA, 1941** ## **W.A.No.1500 of 2015** **AGAINST THE JUDGMENT IN WPC 7695/2007 OF HIGH COURT OF KERALA DATED 07-11-2014** ## **APPELLANT/WRIT PETITIONER:** **K.C.VALSAMMA, HIGH SCHOOL ASSISTANT, KADAPRA ST.THOMAS HIGH SCHOOL, KIZHAKKUMBHAGOM P.O., NIRANAM, THIRUVALLA.** ## **BY ADV. SRI.P.CHANDRASEKHAR** ## **RESPONDENTS/RESPONDENTS:** **1 THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF GENERAL EDUCATION, THIRUVANANTHAPURAM, PIN - 695 001.** **2 THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM, PIN - 695 033.** **3 DEPUTY DIRECTOR OF EDUCATION, PATHANAMTHITTA, PIN - 689 645.** **4 THE MANAGER, KADAPRA ST.THOMAS HIGH SCHOOL, NIRANAM, KIZHAKKUMBHAGOM P.O., THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN - 689 620.** **R4 BY ADVS. SRI.P.HARIDAS SRI.P.C.SHIJIN** ## **OTHER PRESENT:** **SMT RAJI T. BHASKAR, GP, FOR R1 TO R3.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20.06.2019, ALONG WITH WA.1586/2015, WA.1624/2015, WA.2060/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.A.No.1500 of 2015 & connected cases** **- 2 -** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 20TH DAY OF JUNE 2019 / 30TH JYAISHTA, 1941** ## **W.A.No.1586 of 2015** **AGAINST THE JUDGMENT IN WPC 16093/2006 OF HIGH COURT OF KERALA DATED 07-11-2014** ## **APPELLANT/WRIT PETITIONER:** **JAGI A JACOB, HIGH SCHOOL ASSISTANT, KADAPRA ST.THOMAS HIGH SCHOOL, KIZHAKKUMBHAGOM P.O., NIRANAM, THIRUVALLA.** **BY ADVS. SRI.P.CHANDRASEKHAR SMT.P.M.MAZNA MANSOOR SMT.V.A.HARITHA SRI.K.NANDAKUMAR SRI.P.A.MOHAMMED SHAH SRI.P.SREEKUMAR SRI.P.VIVEK. SRI.SOORAJ T.ELENJICKAL SRI.S.PRASANTH** ## **RESPONDENTS/RESPONDENTS:** **1 THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF GENERAL EDUCATION, THIRUVANANTHAPURAM,PIN-695 001.** **2 THE DISTRICT EDUCATIONAL OFFICER, THIRUVALLA, PIN-689 101.** - **3 THE MANAGER, KADAPRA ST.THOMAS HIGH SCHOOL, NIRANAM, PATHANAMTHITTA-689 621.** **W.A.No.1500 of 2015 & - 3 - connected cases** **4 ANNIE JOSEPH, W/O. MOHAN P.KURIAN, PANACKAMATTHATHU GRACE VILLA, KADAPRA, MANNAR P.O., VIA NIRANAM, THIRUVALLA. (HIGH SCHOOL ASSISTANT, MALAYALAM, KADAPRA ST.THOMAS HIGH SCHOOL, NIRANAM WEST, KIZHAKKUMBHAGOM P.O., THIRUVALLA-689 620.** **R3 BY ADVS. BY SRI.P.HARIDAS SMT.S.SIKKY SRI.P.C.SHIJIN R1 & R2 BY GOVERNMENT PLEADER SMT.RAJI T.BHASKAR** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20.06.2019, ALONG WITH WA.1500/2015, WA.1624/2015, WA.2060/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.A.No.1500 of 2015 & connected cases** **- 4 -** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 20TH DAY OF JUNE 2019 / 30TH JYAISHTA, 1941** **WA.No.1624 of 2015** **AGAINST THE ORDER/JUDGMENT IN WPC 22474/2005 of HIGH COURT OF KERALA DATED 07-11-2014** ## **APPELLANT/WRIT PETITIONER:** **K.C.VALSAMMA, (HEADMISTRESS UNDER SUSPENSION), ST.THOMAS HIGH SCHOOL, KADAPRA, NIRANAM, THIRUVALLA, RESIDING AT KADAMBANKERIL JACOB'S VILLA, VALANJAVATTOM PO, THIRUVALLA.** **BY ADVS. SRI.P.CHANDRASEKHAR SMT.P.M.MAZNA MANSOOR SMT.UMA SMT.V.A.HARITHA SRI.K.NANDAKUMAR SRI.P.A.MOHAMMED SHAH SRI.SOORAJ T.ELENJICKAL SRI.S.PRASANTH** ## **RESPONDENTS/RESPONDENTS:** **1 THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF GENERAL EDUCATION, THIRUVANANTHAPURAM-695 001.** **2 THE DISTRICT EDUCATIONAL OFFICER THIRUVALLA, PIN-689 101.** **W.A.No.1500 of 2015 & - 5 - connected cases** - **3 THE MANAGER, KADAPRA ST. THOMAS HIGH SCHOOL, NIRANAM, PATHANAMTHITTA, PIN-689 621** - **4 SHRI A T RAJU, H.S.A., ST. THOMAS HIGH SCHOOL, KADAPRA, NIRANAM, THIRUVALLA, PIN-689 621** - **5 ANNIE JOSEPH, W/O MOHAN P KURIAN, PANACKANMATTHATHU GRACE VILLA, KADAPRA, MANNAR PO, VIA NIRANAM, THIRUVALLA (HIGH SCHOOL ASSISTANT, MALAYALAM, KADAPRA ST. THOMAS HIGH SCHOOL, NIRANAM WEST, KIZHAKUMBHAGOM PO, THIRUVALLA, PIN-689 620** **R3 BY ADVS. SRI.P.HARIDAS SMT.S.SIKKY SRI.P.C.SHIJIN R1 & R2 BY GOVT.PLEADER SMT.RAJI T.BHASKAR.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20.06.2019, ALONG WITH WA.1500/2015, WA.1586/2015, WA.2060/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.A.No.1500 of 2015 & - 6 - connected cases** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 20TH DAY OF JUNE 2019 / 30TH JYAISHTA, 1941** **WA.No.2060 of 2012** **AGAINST THE ORDER/JUDGMENT IN WPC 32927/2007 of HIGH COURT OF KERALA DATED 01-08-2012** ## **APPELLANT/3RD RESPONDENT:** **C.A.CHACKO, MANAGER, ST.THOMAS HIGH SCHOOL, KADAPRA, KIZHAKKUMBHAGOM, P.O. NIRANAM, THIRUVALLA.** **BY ADV. SRI.P.HARIDAS** ## **RESPONDENT/PETITIONER AND RESPONDENTS 1 & 2:** **1 K.C.VALSAMMA, W/O.JACOB KURIEN, KADAMPANKERIL JACOB'S VILLA, VALANJAVATTOM P.O. THIRUVALLA, FORMER HEADMISTRESS, ST.THOMAS HIGH SCHOOL,KADAPRA, KIZHAKKUMBHAGOM P.O. NIRANAM, THIRUVALLA 689101.** **2 THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695001.** **3 THE DEPUTY DIRECTOR OF EDUCATION, PATHANAMTHITTA, THIRUVALLA-689101.** **BY ADVS.** **GP SMT.RAJI T.BHASKAR FOR R2 & R3 R1 BY ADV. SRI.S.SHANAVAS KHAN** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20.06.2019, ALONG WITH WA.1500/2015, WA.1624/2015, WA.1586/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.A.No.1500 of 2015 & - 7 - connected cases** ## **JUDGMENT** **[ WA 1500/2015, WA.1586/2015, WA.1624/2015, WA.2060/2012 ]** ## **Vinod Chandran, J.** **Multiple issues arise in these appeals, with respect to (i) the minority status of the aided school and (ii) the teacher who should be appointed as the Head Mistress/Master [for brevity "HM"], (iii) the legality of the suspension of a HM and (iv) the sustainability of the punishment awarded to that teacher. We will refer to the name of the parties in the judgment.** **2. W.A.No.1624 of 2015 filed by K.C.Valsamma, one of the rival claimants to the post of HM, and W.A.No.1586 of 2015 filed by Jagi A.Jacob, who anticipates a consideration as HM in the future years; challenge the minority status of the institution as declared by the Government. The respondent Manager asserts protection under Article 30(1) of the Constitution of India to select a HM of their choice. W.A.No.1500 of 2015 arises from a writ petition which challenged the orders of the Government which challenged the orders of the Disciplinary Authority/Manager and the educational authorities as also** **W.A.No.1500 of 2015 & - 8 - connected cases** **the Government leading to imposition of a punishment of reversion of Valsamma from the post of HM to that of High School Assistant [for brevity "HSA"]. W.A.No.2060 of 2012 is filed by one C.A.Chacko, who was the successful claimant to the post of Manager, against the interference caused by the learned Single Judge to the punishment of reversion imposed on Valsamma. In fact the writ petition was filed against an order of the Government, pursuant to a direction of this Court to dispose of a revision against the punishment imposed. The order impugned in that writ petition merely noticed that the revision was earlier disposed of. However the earlier order was produced as Ext,P7 in the said writ petition and dealt with the issue of the legality of the suspension. But the learned Single Judge considered the issue of the punishment imposed and found the same to be bad. In fact the order of the government approving the continuance of Valsamma on suspension (Ext.P7 in W.P.(C) No.3297/2007) was challenged in W.P.(C) No.7695/2007 from which W.A.No.1500 of 2015 arise. W.A.Nos.1500, 1586 and 1624 of 2015 are from a common judgment and W.A.No.2060 of 2012 is from a separate judgment. The rival claimants to the post of Manager are K.K.Iype and C.A. Chacko and that to the post of HM is** **W.A.No.1500 of 2015 & - 9 - connected cases** **A.T.Raju, the latter of whom is admittedly junior to Valsamma; but said to have been appointed invoking the protection for a minority institution as guaranteed under Article 30(1) of the Constitution of India.** **3. In the common judgment, the learned Single Judge found the institution to be enabled the protection under Article 30(1) and rejected the claim of Valsamma to the post of HM, since Raju was found to have been appointed by the Manager invoking the protection under Article 30(1). Valsamma's claim to the post of HM having been rejected, the further orders on the question of how her suspension period would be treated was left to be considered on the basis of the outcome of the disciplinary proceedings. In the separate judgment the punishment awarded to Valsamma, of reversion, was interfered with by the learned Single Judge on the sole ground of there being no prior sanction from the educational authorities. There is no scope for any further award of punishment now, for reason of Valsamma having retired.** **4. Sri.P.Chandrasekhar, learned Counsel appearing for Valsamma, would contend that there cannot be any minority status conferred on the aided school. There is nothing produced to indicate that it is for the benefit of** **W.A.No.1500 of 2015 & - 10 - connected cases** **the minority community that the same was established. The learned Counsel would specifically rely on the judgment of the Hon'ble Supreme Court in** _**State of Kerala v**_ **.** _**Very Rev. Mother Provincial**_ **[** _**(1970) 2 SCC 417**_ **] to buttress the contention that establishment by a minority community alone would not enable protection under Article 30(1) and the establishment should also be for the benefit of a minority community, which further condition as laid down by the Constitution Bench of the Hon'ble Supreme Court; is grossly lacking in the present case. The Deed of Constitution ('Udampadi' as it is termed in the vernacular) as available in the records was read over to us to argue that it only mentions the intention of certain members of the christian community to constitute a Committee for the purpose of managing the English Lower Grade Secondary School which had been established by the persons who put their signature to the document. There is nothing in the document to indicate that the establishment of the school was for the benefit of the minority community which takes away the protection as available under Article 30(1). But for the "Udampadi", nothing else was on record before the Government and the learned Single Judge has thought it fit to rely on materials alleged to have been produced before this Court;** **W.A.No.1500 of 2015 & - 11 - connected cases** **but, however, not available in the records. There is nothing to substantiate the finding of the learned Single Judge that the procedure and practise followed by the school was one congenial to the faith, belief and rites of christian community. It was also found that majority of the students of the school were belonging to the minority community and the events and functions indicate prominence to religious sermons and other aspects of the community. The attendant circumstances so found to prove the establishment and administration by the minority community, which in conjunction with the terms of the Udampadi, demonstrate the minority status as correctly declared by the Government, was the finding of the learned Single Judge. This, according to the learned Counsel, was not a proper exercise of the jurisdiction under Article 226 especially when there was no such material placed before the fact finding authorities nor before this Court. It is further argued, over the years the Supreme Court had followed the declaration in** _**Very Rev. Mother Provincial**_ **, as is indicated in the later decisions of the Hon'ble Supreme Court reported in** _**A.P.Christians Medical Educational Society v**_ **.** _**Govt. Of A.P**_ **. [** _**(1986) 2 SCC 667**_ **] and** _**St.Stephen's College v**_ **.** _**University of Delhi**_ **[** _**(1992) 1 SCC**_ **W.A.No.1500 of 2015 & - 12 - connected cases** _**558**_ **]. Many decisions of this Court were also placed before us to advance the contention of** _**stare decisis**_ **.** **5. According to the learned Counsel, a decision on the minority status of the institution even if it goes against Valsamma, her claim to the post of HM would even then survive on the principle of** _**de facto**_ **doctrine. It is asserted that Valsamma was appointed by the Manager whose appointment was approved by the Government. The subsequent orders negating the approval granted by the AEO, would not in any way affect the appointment made by the said Manager. It is also pointed out that the subsequent Manager had initiated disciplinary proceedings against Valsamma when she was continuing as an HM and on finding the misconducts alleged to have been proved, there was a reversion effected from the post of HM to that of HSA. The very fact that even the subsequent Manager, who was held to be the rightful claimant, had imposed a punishment of reversion as HSA would indicate that her appointment to the post of HM was accepted. It was also pointed out that Valsamma was kept under suspension without an extension being approved by the educational authorities within the 15 days period, for which period alone the Manager has competence to keep a teacher under suspension as per the Kerala Education Rules,** **W.A.No.1500 of 2015 & - 13 - connected cases** ## **1959 (hereinafter the 'KER').** **6. Sri.P.Haridas appears for the Manager; C.A.Chacko, who eventually has been confirmed in that position. The learned Counsel would remind this Court insofar as the limited jurisdiction exercised in Writ Appeal, which could only be to correct the apparent errors emanating from the judgment of the learned Single Judge who was exercising judicial review. In the context of there being no material placed before Court to controvert the factual findings made by the Government, there could be no irregularity found or perversity alleged, which alone could result in upsetting such factual findings. It is pointed out that the Udampadi itself would indicate that the school was established for the benefit of the minority community and it is an admitted fact that all-through the members of the minority community alone were administering the school. The learned Counsel would, on a reference to the Malabar Manual, point out that Niranam, the place where the respondent-school was established, is one of the traditional places associated with Christianity in this country, wherein one of the first 7 Churches were built. On the question of materials, it is contended that a set of documents were handed over to the learned Single Judge at** **W.A.No.1500 of 2015 & - 14 - connected cases** **the time of hearing, which was referred to in the presence of the learned Counsel appearing for the other parties. It is on this basis that the impugned judgment finds the school having been conducted in consonance with and to advance the christian faith and beliefs. As for the** _**defacto doctrine**_ **it is argued on the basis of the culmination of the dispute as to Managership; Chacko the Manager now elected by the educational agency, is confirmed to be the person appointed by the Committee validly constituted, by the statutory authorities and this Court. Chacko had appointed Raju in 2002. This was prior to the appointment of Valsamma on 29.08.2003 and hence even going by the** _**de facto doctrine R**_ **aju's appointment has to be upheld. Sri. Haridas has also placed a number of decisions on the aspect of minority status, before this Court, which if necessary we will refer to in the course of the judgment.** **7. First we look at the status of the school, whether it is a minority institution or not as understood from Article 30(1). We have gone through the decision in** _**Very Rev. Mother Provincial**_ **and cannot but observe that there the question of minority status did not arise at all since the petitioners who claimed that status were admitted to be minority institutions by the State. But, this does** **W.A.No.1500 of 2015 & - 15 - connected cases** **not in any way permit this Court to detract from the principles laid down, to find establishment and administration, as set out in Article 30(1) of the Constitution, in paragraphs 8 and 9 of the said decision. This has also been followed by the Hon'ble Supreme Court and the High Courts in considering the issue of minority status. But, we make a caveat insofar as, the aspect of establishment for the benefit of a minority community had been emphasized to decide the question whether the source of funds would be a deciding factor. That is, whether the funds had to be sourced from the community at large or even an establishment by a single philanthropic individual could fall within the ambit of the protection under Article 30(1). The declaration was to the effect that the source of funds does not matter, if it can be found that an institution is established for the benefit of a minority community. even by a single member of that community. It cannot be the position that it should be clear from the deed of establishment itself or that there should be a specific recital, that the establishment is for the benefit of a minority community. In this context, pertinent also is the fact that the school was established much before the Constitution of India came into force. The school as seen** **W.A.No.1500 of 2015 & - 16 - connected cases** **from the Udampadi was established in 1917 and the Udampadi, to regulate the Management of the school, was executed in 1927 by the 15 persons who started the school. At that time, the members of the community who established the school did not have within their contemplation that there would be a minority status and protection thereto, conferred in independent India, especially when independence itself was then, only a hope nurtured by many. 8. With the above principle in our mind, we notice the other two decisions cited by Sri. P. Chandrasekhar. The appellant in** _**(1986) 2 SCC 667,**_ **A.P.Christians Medical Educational Society, was a post-Constitution institution, where, by a mere play of words in the objects of the Society, it was attempted to be styled as a minority institution. There was not even reference to any corpus with which the Society and the institutions proposed were to be financed. In fact, there was an admission that the funds were to be sourced from that collected from the students. The further facts, as noticed in the judgment, would also indicate a stream of falsehood addressed to the various authorities, including Universities and the Government, which, at the first instance itself, was exposed by the University, from whom the institution sought** **W.A.No.1500 of 2015 & - 17 - connected cases** **affiliation; by way of cautioning students with publications in newspapers. The entire attempt of the recital and use of the words 'Christian minority institution' occurring in the Memorandum of Association was held to be a smokescreen, in the said case, by the Hon'ble Supreme Court.** **9. Contrary to this, in** _**(1992) 1 SCC 558;**_ **St.Stephen's College, was a pre-Constitution institution, the minority status of which was under serious challenge by the University to which it was affiliated. The present case also is in the category of such an institution. Of course, the overwhelming evidence that was available, noticed in the decision in the case of** _**St.Stephen's College**_ **is not available here. But, it has to be observed that there the establishment itself was by missionaries, who with the sole intent of propagating the christian faith had organized themselves into a Cambridge Brotherhood, founded to impart christian religious instruction and education based on christian values to christian students as well as others who may opt for the said education. An organized effort of that scale was not there in the present case. All the same, in a much lesser scale this was a case of 15 Christians residing in a locality, a remote village in the south of** **W.A.No.1500 of 2015 & - 18 - connected cases** **India, coming together to establish an English Medium School when the concept of English education was anathema to the majority community. The school was named 'St.Thomas Lower Primary School' and the funds were contributed from the 15 persons who signed the deed, produced as Exhibit P2 in W.P.(C) No.16093 of 2006 [from which W.A.No.1586 of 2015 arises], all of whom belonged to the christian community. Their christian identity was specifically proclaimed in the recitals of the document; 'Udampadi', they created to stream line the administration of the school they established with funds contributed by all of them. It was the 15 members who created the corpus for the establishment from their own funds and it was from two among them, that lands were purchased.** **10. There was also a recital as to how the assets of the school should be apportioned in accordance with the contributory share made by each of the 15 members, if the school in future was closed down. When constituting a Committee of the 15 persons who executed the Udampadi and providing for positions of President, Secretary, etc., it was also provided that on the death of a member, the eldest son of the deceased would become the member of the Committee. It was also provided that other members could be** **W.A.No.1500 of 2015 & - 19 - connected cases** **included for one year after receiving from them a contribution of Re.1/-. The school had been administered from then till date by the said Committee. In the course of this judgment, we would refer to the disputes with respect to the Managership, which again arose by reason of the number of members of the Committee being extended from 15 as originally constituted. It is an admitted fact that even the expanded Committee of 34 members, which failed to receive the approval of the Civil Court, also contained only members from the Christian community. The dispute to the post of Manager again was between two groups comprised only of Christians. These facts, according to us, are sufficient to establish that the institution established long before the Constitution was and still remains a minority institution was established for the benefit of the community, thus enabled the protection under Article 30(1) of the Constitution of India. We would not refer to the various other aspects discussed by the learned Single Judge, which, we find, is not supported by any documents available in the records. We find the minority status of the institution as found by the Government to be perfectly in order. Writ Appeal Nos.1586 of 2015 and 1624 of 2015 stand dismissed upholding the finding of the Government, on** **W.A.No.1500 of 2015 & - 20 - connected cases** **the reasoning above; on a different reasoning employed by the learned Single Judge to uphold the minority status of the school.** **11. As we noticed at the outset, in the instant Writ Appeals the questions raised are with respect to the minority status of the school, the rival claims to the post of HM and the suspension of & punishment imposed on Valsamma. The rival claim is intrinsically linked with the dispute on Managership, which, as of now, stands settled. The original Udampadi, as we saw, had a committee of 15 members, which allegedly stood expanded later to around 34. The expansion to 34, however, was not found to be proper by the Civil Court in a suit filed by one of the rival claimants. Later, there was an issue of 12 member Committee, which also stood resolved by an order of the Government finding that only 8 members and legal heirs of the original 15 member Committee survive for constituting a valid committee. In this context, we have to note the brief history of the dispute as also the litigation.** **12. For facts, we notice the recitals in Exhibit P6 dated 06.12.2004, produced in W.P.(C).No.22474 of 2005; from which writ petition arise W.A.No.1624 of 2015. One Abraham was the Manager of the school, who resigned due to** **W.A.No.1500 of 2015 & - 21 - connected cases** **old age and thereafter arose the tug for Managership. T.K.Varghese was appointed as Manager on 16.10.1993, which appointment was approved by the DEO by order No.K.Dis.13376/93/02 dated 05.11.1994. K.K.Iype filed O.S.No.161 of 1995, claiming that a Committee of 34 members was formed in 1974 and the said Committee is entitled, under the Udampadi, to manage the affairs of the school. Iype also filed appeal from the order of the DEO approving the appointment of Varghese as Manager, to the DPI. The DPI upheld the validity of the 34 member Committee and set aside the order of the DEO appointing Varghese. Varghese filed O.P.No.32190 of 1999 in which there was an interim stay, which interim order also permitted Varghese to continue as Manager. Varghese continued till 09.10.2010 and then stepped down and one C.A.Chacko was appointed on 10.10.2000 by a 8 member Committee.** **13. The DEO declined the approval for the** **appointment of Chacko as the Manager. Chacko filed O.P.No.12207 of 2002 and Iype filed O.P.No.17516 of 2002. In the Original Petition filed by Chacko, there was an interim order against the order of the DEO declining approval to his appointment as Manager. It was while Chacko was thus continuing as Manager, that Exhibit R4(a) dated** **W.A.No.1500 of 2015 & - 22 - connected cases** **01.06.2002 [in W.P(C) No.7695 of 2007] was issued by Chacko appointing Rev.A.T.Raju as the HM, overlooking the seniority; on the claim of the school being a minority institution entitled to protection under Article 30(1) of the Constitution. The rival claims to the post of HM, commences at this point when a junior was appointed as HM claiming the protection under Article 30(1).** **14. O.P.Nos.12207 of 2002 and 17516 of 2002 filed by Chacko and Iype were disposed of by a common judgment dated 23.07.2002, directing the suit to be expedited and** _**status-quo**_ **to be continued.** _**Status-quo**_ **obviously was of Chacko being continued as Manager. O.S.No.161 of 1995 was dismissed on 30.10.2002. Iype's assertion of 34 member Committee being entitled to manage the school under the Udampadi was rejected. Then a 12 member Committee, who were asserted to be legal heirs of the original 15, elected Iype as the Manager with effect from 30.12.2002. Iype moved O.P.No.5045 of 2003 seeking expeditious disposal of the application for approval, which was allowed and after independent consideration, by order No.B1/5/2003 dated 21.08.2003 [Exhibit R4(m) in W.P.(C).No.7695 of 2007] the DEO approved the appointment of Iype as Manager. The DEO by proceedings dated 21.08.2003 [Exhibit R4(n) in W.P.(C)** **W.A.No.1500 of 2015 & - 23 - connected cases** **No.7695 of 2007] directed the senior-most teacher Valsamma to be promoted as HM with effect from 01.06.2002 and declined approval to the appointment of A.T.Raju from 01.06.2002.** **15. Pursuant to the order of the DEO, Valsamma was appointed as HM by Exhibit P1 order dated 29.08.2003 [in W.P(C).22474 of 2005]. The appeal from that order of the DEO was rejected by the DPI on 01.12.2003. There was an appeal as against the appointment of the Manager as also the approval of appointment of Valsamma as HM. Government by order dated 06.12.2004 at Exhibit P6 in W.P(C) No.22474 of 2005 [i.e., Exhibit R4(e) in W.P.(C) No.7695 of 2007] reversed the finding of the DEO and DPI and held that out of the original 15 members who were parties to the Udampadi, 7 persons died without issues. Hence, the Committee who was entitled to manage the affairs of the school as per the Udampadi was found to be the eldest family members of the original 8 who had legal heirs to continue their line of succession. The 8 member Committee was found to be the legally available Committee, which was directed to elect a Manager.** **16. It is admitted that C.A.Chacko was elected as Manager and a challenge against Exhibit P6 by Iype to this** **W.A.No.1500 of 2015 & - 24 - connected cases** **Court ended in rejection. Exhibit P6 has hence attained finality. C.A.Chacko is now the accepted Manager of the school who stood so elected as per the directions in Exhibit P6. Chacko was elected as Manager as per Annexure R4(e) [produced as per I.A.No.1 of 2019 in W.A.No.1624 of 2015], by a decision on 08.12.2004 by the 8 member Committee. The said appointment was also approved by the DEO as per Annexure R4(g) dated 09.09.2005, again produced in the same Writ Appeal. The dispute regarding Managership thus concluded with the said orders having been upheld by this Court.** **17. Immediately after assuming charge, Chacko issued Exhibit P4 dated 04.01.2005, suspending Valsamma from the post of HM on various allegations raised against her. We pause here to notice that, despite all the litigations and the appointments made of the rival claimants to the post of Manager, when Chacko assumed office as Manager, Valsamma was the HM. Otherwise Chacko would not have suspended her from the post of HM. Valsamma's appointment as HM was also approved with effect from 01.06.2002, on which date Raju was appointed, though she took charge, only by virtue of Exhibit P1 dated 29.08.2003.** **W.A.No.1500 of 2015 & - 25 - connected cases** **18. The Manager, sought for approval of the continued suspension of the teacher as per the KER, within 15 days. Admittedly no approval was obtained by the Manager. The Manager, just prior to the 15 days period, issued yet another suspension order dated 18.01.2005. There is nothing stated as to any sanction having been sought; after the second suspension order. In any event, no approval was obtained within 15 days from that order too. The Manager did not reinstate the HM as is the mandate under the KER. Valsamma then is deemed to have been reinstated to the post from which she was suspended and the liability to her pay and allowances fall on the Manager by virtue of Rule 67(8) of the KER.** **19. By Exhibit P5 [in W.P(C) No.7695 of 2007] dated 21.03.2005, the DEO gave permission to keep the teacher on suspension; but after two months, which obviously could not have been permitted. Immediately thereafter on 28.03.2005, by Exhibit P7 [in W.P.(C) No.22474 of 2005], the Government found the minority status of the institution and also found that the appointment of A.T.Raju as HM was made by the Manager who represented the 8 member Committee approved by the Government as per order dated 06.12.2004. The continuance of Raju was on account of** **W.A.No.1500 of 2015 & - 26 - connected cases** **the suspension of Valsamma. Valsamma as also Raju are said to have retired on 30.04.2007.** **20. We have already found the minority status of the institution upholding the order of the Government. We shall consider the** _**de facto**_ **doctrine and also the validity of suspension, which are the questions arising in W.A.No.1500 of 2015. We would first deal with W.A.No.2060 of 2012. The writ petition from which the said Writ Appeal arises, was filed by Valsamma against her reversion to the post of HSA from that of HM, as a punishment, pursuant to a disciplinary enquiry initiated by the Manager. The specific order challenged was an order in revision passed by the Government produced at Ext. P6. Ext.P6 found the issue having been already considered by the Government by Ext. P7 order. Ext. P7 is an order affirming the continuation of suspension. Hence, the Government had not considered the issue of sustainability of punishment. However the learned Single Judge had considered the issue and found the punishment to be not sustainable for the sole reason of non-compliance with the statutory provision. We cannot fault the finding on any count and are of the opinion that a remand to the Government serves no purpose.** **21. Admittedly the enquiry conducted by the DEO** **W.A.No.1500 of 2015 & - 27 - connected cases** **found the teacher to be guilty and the Manager issued orders imposing punishment; but, however, without compliance of Rule 71 of Chapter XIV-A of KER. The Manager had not obtained the previous permission of the Director as per Rule 71 while imposing punishment of reversion. The order imposing punishment also did not refer to any order of the Director granting any prior sanction for imposition of punishment. The order imposing punishment which as upheld by the authorities were found to be unsustainable by the learned Single Judge. A review was filed by the Manager, in which we find that the ground raised is of sanction having been obtained for imposing such punishment. Even now no sanction has been produced and the learned Counsel for the appellant-Manager on instruction admits that no sanction was obtained. In such circumstances, the Writ Appeal by the Manager does not have any merit. W.A.No.2060 of 2012, hence, stands dismissed. Valsamma having retired from service on 30.04.2007, there cannot be any further imposition of punishment. The Manager has to suffer the consequences which arise from non-compliance of the statutory mandate.** **22. Now we come to the issue of the** _**de facto**_ **doctrine and who is entitled to continue. As of now, the** **W.A.No.1500 of 2015 & - 28 - connected cases** **status of the school as a minority institution is upheld by us, as found by the Government. Hence, the appointment of A.T.Raju as per Exhibit R4(a) [in W.P(C) No.7695 of 2007] on 01.06.2002 has to be upheld. However, though Raju continued, on specific orders of the educational authority dated 21.08.2003 [Exhibit R4(n) in the said writ petition], Valsamma was appointed on 29.08.2003. The approval of the appointment of Raju having been declined by the said order, Valsamma the senior most was appointed by virtue of that order.** _**De facto**_ **doctrine squarely applies in the case of Valsamma and her continuance in the post from 29.08.2003 has to be affirmed. Exhibit R4(n) directed Valsamma's appointment to have effect from 01.06.2002, but the further challenge to the said orders ended in the minority status being found on the school. Hence, we cannot find any claim for Valsamma during the period between 01.06.2002 and 29.08.2003 when Raju continued as the HM appointed by a duly elected Manager of the 8 member Committee. This does not, however, detract from the application of** _**de facto**_ **doctrine by which, Valsamma is deemed to have been validly appointed as HM from 29.08.2003. Subsequently on 04.01.2005, after Chacko again assumed charge by virtue of Exhibit P6 dated 06.12.2004 [in W.P(C) No.22474 of 2005],** **W.A.No.1500 of 2015 & - 29 - connected cases** **he suspended Valsamma by Exhibit P4 [in W.P.(C) No.7695 of 2007] from the post of HM. Hence, she was continuing in the post of HM till the suspension was ordered.** **23. The further question to be dealt with is as to whether the suspension was proper or not. Admittedly the permission for continuing the teacher under suspension was obtained only by Exhibit P5 dated 21.03.2005. The suspension, hence, has to be found to be illegal by reason of the permission having not been obtained within the stipulated period. The Manager ought to have reinstated Valsamma to the post of HM on the expiry of 15 days; which was not done. However, immediately thereafter by order dated 28.03.2005 [Exhibit P7 in W.P.(C).No.22474 of 2005] the minority status of the school was found and Sri.A.T.Raju was found to be the HM duly appointed by the Manager. A.T. Raju was at that point holding the post of HM, since Valsamma was on suspension. Hence, no fresh appointment was issued and Raju was continued as HM, the rightful appointee as chosen by the minority educational agency.** **24. If Valsamma had been reinstated, then** **necessarily, on the minority status being found she would loose the post of HM and be automatically reverted as HSA.** **W.A.No.1500 of 2015 & - 30 - connected cases** **Valsamma, all the same has to be found to be entitled the salary of HM from 19.01.2005 [15 days after the order of suspension from 04.01.2005] till 28.03.2005 when the dispute relating to Managership was resolved and Raju was directed to be continued as HM. Valsamma at that point, we repeat, in any event, would have been reverted to the post of HSA. She retired on 30.04.2007, when she could have retired only as HSA. The** _**de facto**_ **doctrine enables Valsamma's continuance as HM from 29.08.2003 to 28.03.2005, the date of Exhibit P7 order. She would also be paid the salary of HM during the period between 19.01.2005 and 28.03.2005 when she was kept under illegal suspension and that liability would be on the Manager as per Rule 67(8) of the KER. W.A.No.1500 of 2015 would stand partly allowed. The fact remains that though Valsamma's punishment stands set aside by operation of law she would have lost her claim to the post of HM on the minority status being found and from that her right is only to continue as HSA. The continuance as HSA would be for the balance period of suspension and she will be paid the entire pay and allowances during the balance period when she ought to have been continued as HSA. We make this reservation that the pay and allowances due to her, would be that of an HM** **W.A.No.1500 of 2015 & - 31 - connected cases** **between 29.08.2003 to 28.03.2005 and then as an HSA for the balance period of suspension. The entire pay and allowances paid to Valsamma during the period of suspension, when she was kept out of service, illegally, barring the initial 15 days, would be treated as the liability of the Manager under Rule 67(8). The Government shall pay the amounts and recover it from the Manager.** **25. Consequently, W.A.Nos.1500 of 2015 is allowed finding the suspension of Valsamma to be illegal, barring the first 15 days. W.A.Nos.1586 of 2015, 1624 of 2015 and 2060 of 2012 would stand dismissed.** **Ordered accordingly. Parties are left to suffer their respective costs.** **Sd/-** **K.VINOD CHANDRAN** ## **JUDGE** **Sd/-** **V.G.ARUN JUDGE** **Vku/-** **W.A.No.1500 of 2015 & - 32 - connected cases** ## **APPENDIX OF WA 1624/2015** ## **RESPONDENT'S/S ANNEXURES:** **ANNEXURE R4 A TRUE COPY OF THE INTERIM ORDER DATED 03/05/2002 IN CMP NO.20895/2002 IN OP NO.12207/2002.** - **ANNEXURE R4 B TRUE COPY OF THE ORDER DATED 02/07/2002. ANNEXURE R4 C TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN OP NO.12207/2002 AND CONNECTED CASES DATED 23/07/2002.** - **ANNEXURE R4 D TRUE COPY OF THE JUDGMENT IN OP NO.24285/2002 DATED 08/04/2003.** - **ANNEXURE R4 E TRUE COPY OF THE MINUTES OF THE MANAGING COMMITTEE DATED 08/12/2004.** - **ANNEXURE R4 F TRUE COPY OF THE ORDER DATED 30/12/2004. ANNEXURE R4 G TRUE COPY OF THE ORDER OF DEO DATED 09/09/2005.** - **ANNEXURE R4 H TRUE COPY OF THE ORDER OF APPROVAL DATED 02/05/2005.** - **ANNEXURE R4 I TRUE COPY OF THE ORDER DATED 19/07/2016. ANNEXURE R4(1) TRUE COPY OF THE LETTER ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, THIRUVALLA TO THE HEADMASTER DATED 04/01/2000.** - **ANNEXURE R4(2) TRUE COPY OF THE LETTER ISSUED BY DISTRICT EDUCATION OFFICER TO THE HEADMASTER 19/12/2001.** **ANNEXURE R4(3) TRUE COPY OF THE JUDGMENT IN OP NO.24285/2002 DATED 08/04/2003.** **W.A.No.1500 of 2015 & - 33 - connected cases** ## **APPENDIX OF WA 2060/2012** **APPELLANT'S ANNESURE:** **ANNEXURE 1** **COPY OF THE JUDGMENT IN WPC NO.16093/2006 DATED 07/11/2014.** **[ TRUE COPY ]**