Allowed

N.Sreekumar v. State of Kerala

Kerala HC11 Mar 2013WP(C)/17207/2012

Case brief

AI extract

What is this about?

High Court allowed a writ petition challenging an order approving transfer of school management. The Court held the A.E.O. lacked jurisdiction to resolve the dispute between rival groups over a society meeting and set aside the impugned order, directing parties to approach the civil court for resolution. Status quo maintained.

What did the court decide?

The impugned order approving transfer of management is set aside. Petitioner permitted to continue as Manager. Parties directed to approach civil court for resolving dispute.

N.Sreekumar Vs State of Kerala — Landlord and Tenant | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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MONDAY, THE 11TH DAY OF MARCH 2013/20TH PHALGUNA 1934

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WP(C).No. 17207 of 2012 (A)

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PETITIONER:

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N.SREEKUMAR, AGED ABOUT 57 YEARS, S/O.SREEKUMARAN MANAGER, DESASEVA UP SCHOOL KANNADIPARAMBA, KANNUR DISTRICT.

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BY ADVS.SRI.M.RAMESH CHANDER SRI.ANEESH JOSEPH SMT.P.M.SHIJI

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RESPONDENTS:

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1. STATE OF KERALA REPRESENTED BY SECRETARY TO EDUCATION GOVERNMENT OF KERALA THIRUVANANTHAPURAM-695 001.

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2. ASSISTANT EDUCATIONAL OFFICER, PAPPINISSERY - 670 561.

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3. K. BALAKRISHNAN,

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SOPANAM, PUTHIYAPARAMBA, BALIAPATTOM - 670 110.

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R1, R2 BY GOVERNMENT PLEADER SRI.NOUSHAD THOTTATHIL R3 BY ADVS.SRI.MILLU DANDAPANI SMT.SUMATHI DANDAPANI

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.2.2013, THE COURT ON 11-03-2013 DELIVERED THE FOLLOWING:

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WP(C).No. 17207 of 2012 (A) ----------------------------

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APPENDIX ---------

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PETITIONER(S) EXHIBITS

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EXHIBIT-P1 - TRUE COPY OF THE ORDER NO.KDIS.848/99 DATED 20-2-99

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EXHIBIT-P2 - PHOTOSTAT COPY OF THE JUDGMENT IN O.S.52/2009 OF THE MUNSIFF COURT, KANNUR DATED 31.3.2012.

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EXHIBIT-P3 - THE PHOTOSTAT COPY OF THE MINUTES OF THE MEETING OF THE SOCIETY DATED 22.4.2012

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EXHIBIT-P4 - PHOTOSTAT COPY OF THE LETTER SENT BY THE PETITIONER TO THE AEO.

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EXHIBIT-P5 - PHOTOSTAT COPY OF THE COMPLAINT FILED BEFORE THE SUB INSPECTOR OF POLICE

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EXHIBIT-P6 - PHOTOSTAT COPY OF THE ACKNOWLEDGE GIVEN BY THE POLICE.

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EXHIBIT-P7 - PHOTOSTAT COPY OF THE STATEMENT FILED BY THE PETITIONER BEFORE the 2ND RESPONDENT DATED 23.6.2012

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EXHIBIT-P8 - PHOTOSTAT COPY OF THE REPRESENTATION SENT TO THE 2ND RESPONDENT

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EXHIBIT-P9 - PHOTOSTAT COPY OF THE ORDER NO.C/262/2012 DATED 17.7.2012 ISSUED BY THE 2ND RESPONDENT

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EXHIBIT-P10. COPY OF THE ORDER IN IA 1140/11 IN OS NO.508/10 DATED 24.10.11 OF MUNSIFF COURT, KANNUR. EXT.P10 IS ADDED AS PER ORDER DATED 26.7.12 IN IA 10209/12).

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EXT.P10. COPY OF THE RECEIPT DATED 25.12.2011.

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EXT.P10(A). COPY OF THE RECEIPT DATED 25.12.2011 EXT.P10(B). COPY OF THE RECEIPT DATED 25.12.2011 EXT.P10(C). COPY OF THE RECEIPT DATED 25.12.2011 EXT.P10(D). COPY OF THE RECEIPT DATED 25.12.2011 EXT.P10(E). COPY OF THE RECEIPT DATED 25.12.2011 EXT.P10(F). COPY OF THE RECEIPT DATED 25.12.2011

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WP(C).No. 17207 of 2012 (A) ----------------------------

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EXT.P10(G) COPY OF THE RECEIPT DATED 25.12.2011

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EXT.P10(H). COPY OF THE RECEIPT DATED 25.12.2011.

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EXT.P11. COPY OF THE RECEIPT GIVEN BY THE POSTAL DEPARTMENT ON 12.4.2012.

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RESPONDENTS' EXHIBITS

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EXT.R3(A). COPY OF THE MINUTES OF THE GENERAL BODY MEETING OF DESASEVA SANGHAM, CHIRAKKAL, HELD ON 22.4.2012 AS ENTERED IN THE MINUTES BOOK, REFERRED TO IN THE COUNTER AFFIDAVIT.

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EXT.R3(B). COPY OF ORDER DATED 1.8.2012 IN IA.NO.1140 OF 2011 IN O.S. NO.508 OF 2011 ISSUED BY THE MUNSIFF COURT, KANNUR.

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EXT.R3(C). COPY OF THE WRITTEN STATEMENT DATED 28.5.2009 FILED BY THE PETITIONER IN O.S. NO.52 OF 2009 ON THE FILE OF MUNSIFF COURT, KANNUR.

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EXT.R3(D). COPY OF THE QUERY MADE BY SHRI.M.BHASKARAN MASTER UNDER RIGHT TO INFORMATION ACT ON 27.4.2012.

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EXT.R3(E). COPY OF THE REPLY RECEIVED BY SHRI.M.BHASKARAN MASTER FROM THE OFFICE OF THE STATE PUBLIC INFORMATION OFFICER AND DISTRICT REGISTRAR (GENERAL), KANNUR, VIDE NO.G2.3009/2012 DATED 7.5.2012.

/ TRUE COPY /

P.A. TO JUDGE

A.M.SHAFFIQUE, J.

---------------------------------------------------W.P.(C) No. 17207 of 2012 - A --------------------------------------------------Dated this the 11^th March, 2013

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J U D G M E N T

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This writ petition is filed challenging Ext.P9 order dated 17.7.2012 passed by the Asst. Educational Officer (A.E.O.) approving the transfer of management of Desaseva U.P. School in favour of Sri.K.Balakrishnan, the 3^rd respondent herein in the capacity of President Devaseva Sangham from the date of the order till 31.1.2013.

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The facts as disclosed from the records would reveal that the petitioner was appointed as the Manager of the School and was continuing in that capacity for the last several years. His appointment as Manager was approved as per Ext.P1 dated 20.2.1999. It is the contention of the petitioner that the School is managed by a society registered under provisions of Societies Registration Act. 1860. In the meantime, a suit was filed by one Bhaskaran who was a member of the Society as O.S.No. 52/2009. Ext.P2 is the judgment in the said suit wherein the Court directed the petitioner to conduct election to the Society for the year 2012 as per the bye-law

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within one month.

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Petitioner issued notice to all the members of the Society for conducting the General Body Meeting which was scheduled on 22.4.2012 and one of the Agenda for the meeting was holding of the election as directed in Ext.P2 judgment.

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According to the petitioner, though the 3^rd respondent and four other persons attended the meeting they did not participate in the proceedings and forcibly took away the membership register, account book and other documents. Still the meeting was held. Eight members attended. Ext.P3 is the minutes of the said meeting. On the basis of Ext.P3, petitioner forwarded the request to the A.E.O. to approve the petitioner as Manager.

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But in the meantime, the petitioner received a notice to attend a hearing on 23.6.2012 before the 2^nd respondent. Petitioner submitted Ext.P7 representation to the 2^nd respondent. In Ext.P7 petitioner indicated that he was elected as the President of the Society and Sri.K.Divakaran was elected as Secretary. Ext.P3 Minutes was also forwarded along with the same. The petitioner also informed the 2^nd respondent about the

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W.P.(C) No. 17207 of 2012 - A

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action of the 3^rd respondent in taking away the records and the resultant police complaint filed in that regard. Ext.P8 is the said communication. But according to the petitioner he received Ext.P9 by which the management is entrusted to the 3^rd respondent in his capacity as the President of the Society.

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According to the petitioner he was the President of the Society and the Manager of the educational institution. Since Ex.P1, there was no change in the situation. The decree of the civil court directed the petitioner to conduct the election. Petitioner convened the General Body and Ext.P3 is the decision taken by the General Body. The 3^rd respondent and his group did not participate in the General Body Meeting but came and took away the Minutes Book and other records. In that regard, according to the petitioner, the A.E.O. should not have accepted the representation of the 3^rd respondent and inducted him as the Manager of the School.

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Counter affidavit is filed by the 3^rd respondent inter alia contending that there is a change in management of the school. As per the bye-laws of the Society the President of the Society will function as the Manager. According to the 3^rd

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respondent there are only 10 members in the Society and the petitioner had inducted four persons in order to get majority in the meeting. According to the 3^rd respondent when the meeting was convened on 22.4.2012, the petitioner and certain others walked out of the meeting and therefore six members present had to conduct the meeting of their own and the office bearers were elected. Ext.R3(a) is the said Minutes, which was forwarded to the A.E.O. who had taken a decision in the matter after notice to the petitioner. It is therefore contended that the 3^rd respondent is entitled to manage the school as the President of the Society and in that view of the matter there is no reason for any interference with Ext.P9. The 3^rd respondent also raised a contention regarding maintainability of the writ petition on the ground of availability of an alternate remedy in the form of appeal under Rule 4(3) of Chapter III, K.E.R.

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Reply affidavit is filed by the petitioner producing additional documents as Exts.P10 and P11. According to the petitioner, the petitioner alone was permitted to convene the meeting as he was the President of the Society and therefore the

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Minutes of the Meeting given by the petitioner alone ought to have been taken into consideration by the A.E.O. It is also contended that notice was sent by registered post to five persons including the 3^rd respondent and those who supported the 3^rd respondent. In respect of the other members, formal service of notice was made and they attended the meeting. In regard to the number of members, petitioner in an additional affidavit had given the names and details of all such members. Mention was made that there were only 10 members on account of the fact that certain members did not remit the membership fee during the relevant time. If the member ship fee is not remitted they are not entitled to participate in the election. Therefore the election was conducted after the membership fee was paid. This fact would be known only if the members register is verified. Reference is also made to O.S.No.508/2010 of the Munsiff Court, Kannur in which 3rd respondent was the 2^nd plaintiff. The petitioner was appointed as a Receiver as per Ext.P10 order. The suit was later withdrawn by the Plaintiff.

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The 3^rd respondent had filed another reply to the additional affidavit filed by the petitioner in which they rely upon the written statement filed by the petitioner before the Civil Court i.e. O.S.No.52/2009

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Having regard to the factual circumstances involved in the case the only question to be considered is whether Ext.P9 order suffers from any illegality.

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It is true that an appeal lies against an order passed by the Educational Officer under Rule 4(1) of Chapter III of K.E.R. in terms of sub-rule 3 of Rule 4. But the challenge in this case is with reference to the jurisdiction of the A.E.O. to pass an order under Rule 4(1) having regard to the decisions taken by two groups in the meeting alleged to have been held by them. If the order is patently illegal and without jurisdiction, definitely this Court can interfere under Article 226 of the Constitution of India, despite the availability of anternate remedy.

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A reference to Ch.III of K.E.R. especially Rule 4 and 5 would clarify the role of A.E.O. in this regard. Apparently, the school is managed by a Corporate Educational Agency in

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terms of Rule 1 of Ch. III K.E.R. The management is bound to frame their bye-law or constitution which requires approval from the Director of Public Instruction in terms of Rule 2 of Ch.III K.E.R. The said Constitution will normally contain provisions as to who should become the manager. In this case apparently no such Constitution or bye-laws is approved by the D.P.I. However, as far as the School is concerned, it is not in dispute that the president of the Society shall become the manager of the School. This is provided in the bye- law of the Society. Therefore if there is any change in the management it depends upon the decision taken by the General Body of the members in a properly constituted meeting.

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The change of management also has to be approved by the A.E.O in terms of Rule 5 of Ch. III K.E.R. That being the position, under normal circumstances when the Society informs the A.E.O. that a particular person is appointed as President and that he will become the manager, the A.E.O. will have to approve the said decision and then pass formal orders in respect of the same.

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In this case apparently there is dispute between two groups in relation to holding of the meeting of the society. Both the Groups contend that the meeting held by them which is valid and in accordance with the procedure prescribed and the A.E.O. have accepted the decision taken in the meeting allegedly convened by the 3^rd respondent and appointed him as the manager. The question is whether such a procedure is appropriate or not, under the present factual circumstances.

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First of all the educational authorities have no jurisdiction to consider the validity of any meeting held by a society. Rule 5 of Chapter III K.E.R. or any other provision does not confer upon them any such power. The Society is a separate legal entity which has absolutely nothing to do with the corporate educational agency. The Society has different functions and it also runs a school. That being the situation if there is a dispute among the members of the Society in relation to an election held for appointment of office bearers, the dispute can be resolved only in a civil suit.

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In the above case it could be clearly seen that as per Ext.P2 judgment the petitioner was directed to convene a

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meeting of the General Body members to elect office bearers. The petitioner had convened the meeting, which is not in dispute. But the 3^rd respondent contends that the petitioner had brought in persons who are not members in order to create a majority. This apparently was the dispute in relation to the holding of meeting convened by the petitioner. But it is further stated that the 3^rd respondent had convened another meeting and certain office bearers were elected. Such a meeting, going by the judgment Ext.P2 did not have the mandate of the Court. In Ext.P2 judgment the Court specifically directed the petitioner to conduct meeting. If it was a case that the petitioner did not convene the meeting, as directed by the Court it would have been a different situation. But this is a case where the meeting had been convened but there had been certain disputes regarding the membership pattern available. According to the 3^rd respondent going by the written statement filed in the civil suit there were only 10 members, whereas according to the petitioner that was a mistake and there are 13 members. The membership register is with the 3^rd respondent which is not disputed. The member

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register is not forthcoming. Therefore according to the petitioner an adverse inference has to be drawn. No doubt, if the member register was produced before this Court, it was possible to verify the same to ascertain the actual number of members. Therefore it is not possible to come to a conclusion whether the contention of the petitioner in the suit regarding the number of members was a mistake or not.

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That being the situation, as far as the A.E.O is concerned he could not have taken into consideration the Minutes of Meeting submitted by the 3^rd respondent and appointed him as the manager. The A.E.O. did not have jurisdiction to consider the rival claims and decide the matter. This apparently was a dispute between the two groups in relation to an election held in the Society which could be resolved only by a civil court. Therefore it could be seen that an attempt has been made to overrule the judgment of the civil court, which cannot be permitted. For that reason alone Ext.P9 is liable to be set aside.

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Once I have decided to set aside Ext.P9, the status quo as on the date prior to Ext.P9 has to be maintained and

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it is for the parties to approach the civil court and resolve the disputes in regard to the holding or convening of the meeting. Apparently the period for which the direction was given by the civil court for conducting the meeting was already over and the meeting is to be convened for the next year also. Therefore while directing status quo ante to be maintained, I direct the parties to approach the civil court for resolving the dispute and on the basis of such a decision it is open for the A.E.O. to take appropriate decision in the matter.

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Accordingly, the writ petition is allowed. Ext.P9 is set aside. The petitioner is permitted to continue as Manager in terms of Ext.P1 and the parties are directed to approach the civil court for conducting the General Body meeting of the Society and the A.E.O shall be bound by such decision of the Civil Court.

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Sd/-

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A.M.SHAFFIQUE, JUDGE.

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rka

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/true copy/

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P.S.to Judge.

N.Sreekumar v. State of Kerala

Case brief

What is this about?

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N.Sreekumar v. State of Kerala

Case brief

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