Quashed

T.Ayissu v. the State of Kerala

Kerala HC29 Nov 2016WP(C)/16895/2012

Case brief

AI extract

What is this about?

The High Court of Kerala quashed a Government order setting aside a prior sanction for school management transfer. The court held the 4th respondent was not a person aggrieved, and no revision lay against such an order, rendering the Government's action incompetent.

What did the court decide?

Ext.P4 Government order is set aside; respondents directed to take further steps in accordance with law pursuant to Exts.P1 and P3 orders.

T.Ayissu Vs the State of Kerala — Service and Employment | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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TUESDAY, THE 29TH DAY OF NOVEMBER 2016/8TH AGRAHAYANA, 1938

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WP(C).No. 16895 of 2012 (J)

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PETITIONER(S):

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T.AYISSU, AGED 56 YEARS, MANAGER, VALLIYAD UPPER PRIMARY SCHOOL, THEKKEDATH HOUSE, VALLIYAD P.O., KOZHIKODE DISTRICT.

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BY ADVS.SRI.P.K.SURESH KUMAR (SR.) SRI.ZUBAIR PULIKKOOL

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RESPONDENT(S):

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1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM - 695001.

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2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM - 695001.

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3. THE ASSISTANT EDUCATIONAL OFFICER, THODANNUR, KOZHIKODE DISTRICT, PIN-673541.

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4. M.ABDUL JALEEL,

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PARAPPURATH HOUSE, VALLIYAD P.O., KOZHIKODE DISTRICT, PIN-673542.

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R1-R3 BY SR. GOVERNMENT PLEADER SRI.BIJOY CHANDRAN R4 BY ADV. SRI.R.RAMADAS

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 16895 of 2012 (J)

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APPENDIX

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PETITIONER(S) EXHIBITS

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------------------------------------

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EXT.P1 TRUE COPY OF ORDER NO.G3/72208/08/DPI/K.DIS. DATED 30/9/2011 ISSUED BY THE 2ND RESPONDENT. EXT.P2 TRUE COPY OF GIFT DEED DATED 5/11/2011 REGISTERED AS DOC.NO.1593/2011 OF THIRUVALLUR SRO. EXT.P3 TRUE COPY OF ORDER NO.K.DIS.D.6999/2005 DATED 26/12/2011 ISSUED BY THE 3RD RESPONDENT. EXT.P4 TRUE COPY OF GOVERNMENT ORDER NO.2361/2012/G.E. DATED 23/5/2012 ISSUED BY THE GOVERNMENT OF KERALA, GENERAL EDUCATION (F) DEPARTMENT.

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RESPONDENTS' EXHIBITS

NIL.

/ TRUE COPY /

P.S. TO JUDGE

ANU SIVARAMAN, J.

W.P.(C) No.16895 of 2012

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Dated this the 29^th day of November, 2016

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JUDGMENT

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The prayers in this writ petition are as follows :-

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(i) Quash Ext.P4 order by the issue of a writ of certiorari or other appropriate writ or order;

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(ii) issue such other writ, order or direction as this Hon'ble Court deems fit and proper in the circumstances of the case.

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The contention of the petitioner was that the

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school in question was being run by a Society called 'Valliyad Upper Primary School Committee' with one Mayankutty as its President. The said Mayankutty was also acting as the Manager of the school. He passed away on 12.10.2005. It is

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submitted that there were only 11 members in the society, and that three of them passed away, and one had resigned. Therefore, the General Body of the society had only a strength

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of seven members. The said seven members had taken a

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decision to transfer the school to a trust registered as

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W.P.(C) No.16895 of 2012 -2-

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'Mayankutty Memorial Education Trust' in the year 2007. The petitioner is the Managing Trustee of the said trust. By Ext.P1 order dated 30.09.2011, the Director of Public Instruction had accorded prior sanction under Rule 5A, Chapter III, KER for the change of management involving change of ownership. Ext.P2 gift deed was also executed by the Valliyad Upper Primary School Committee in favour of the Mayankutty Memorial Education Trust. Thereafter, the petitioner was approved as the Manager of the school by Ext.P3 order dated 26.12.2011.

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It appears that after Exts.P1 and P3 orders, a revision was preferred by the 4^th respondent against Ext.P1 before the Government, contending that the transfer of the school did not have the concurrence of the General Body of the Valliyad Upper Primary School Committee and therefore, it was not in order. By Ext.P4 order dated 23.05.2012, Ext.P1 order was kept in abeyance and the General Body of the committee was directed to be convened to consider the question of transfer of the school. These proceedings are under challenge

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W.P.(C) No.16895 of 2012

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-3-

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in this writ petition.

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Heard the learned Senior counsel appearing for

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the petitioner and the learned Government Pleader appearing for the official respondents.

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It is contended by the learned Senior counsel appearing for the petitioner that no revision was maintainable against an order of prior sanction for change of management involving change of ownership under Rule 5A, Chapter III, KER. It is stated that the rule provides only for an appeal that would lie only at the instance of an aggrieved person. It is contended that the 4^th respondent, who was not a member of the committee and had no interest whatsoever in the school would, by no stretch of imagination come within the ambit of the term “person aggrieved” by Ext.P1 order. It is therefore contended that Ext.P4 order is completely without jurisdiction and therefore unsustainable.

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A counter affidavit has been filed on behalf of the third respondent, contending that Late Thekkedath

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W.P.(C) No.16895 of 2012

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-4-

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Mayankutty had executed a sale deed in the year 1979, transferring 46.5 cents of land to the President of the Valliyad Upper Primary School Committee. He died on 12.10.2005, while he was the Manager of the Valliyad UP School. Thereafter, no Manager was elected in the school, which continued without an approved Manager. Thereafter, the 7 members of the committee had convened a meeting on 10.06.2007 and decided to hand over the school with all its property to a newly registered 'Mayankutty Memorial Educational Trust, Valliyad', of which the petitioner was the Managing Trustee. It was stated that the bye-law of the society provides that if the committee were to become defunct, the school could be handed over to another committee established and working in the locality with the same objects. It is further stated that since the Mayankutty Educational Trust was not an already established committee, but a newly registered trust, the decision for transfer of the school to the said trust has to be examined by a court of law.

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W.P.(C) No.16895 of 2012 -5-

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It is further stated that since there was no approved Manager in the school, the decision of the Director of Public Instruction was not in order, and that the General Body of the Velliyad UP School Committee has to consider the question of transfer of the school to the trust, of which the petitioner was the Managing Trustee.

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I have considered the contentions advanced on either side. On a consideration of the pleadings and materials on record, it is clear that the Valliyad UP School Committee apparently had a membership of only 11. Thereafter, the meeting for consideration of the transfer of the school was convened in 2007, with all seven of the surviving members of the committee. These seven members actually constituted the General Body of the committee. This fact has been specifically pleaded in the writ petition and has not been denied in the counter affidavit filed by the 4^th respondent or by any of the other respondents by any pleadings. The general body had decided to transfer the school to the Mayankutty Memorial

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W.P.(C) No.16895 of 2012 -6-

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Education Trust, of which the petitioner was the managing trustee. Ext.P4 order, which proceeds on the basis that the decision to transfer the school was one taken without convening a general body is therefore unsustainable. The further contention contained in Ext.P4 order was that there is no approved Manager in the school at the time, when the committee decided to transfer the ownership, also does not hold good since a decision for transfer of ownership is to be taken by the educational agency. The existence of an approved Manager, going by the provisions of Chapter III KER, is not a legal prerequisite for a decision to transfer ownership or management of the school.

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Ext.P4 order has been rendered by the Government, on a revision preferred by the 4^th respondent. Ext.P4 order itself shows that the 4^th respondent was not a member of either the Valliyad UP School Committee or the Mayankutty Memorial Education Trust. He did not raise any claim as to any interest in the school or its properties. In the

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W.P.(C) No.16895 of 2012 -7-

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above view of the matter, he cannot be said to be a person aggrieved by the order passed by the Director of Public Instruction as Ext.P1. Rule 5A of Chapter III, KER only provides for an appeal against an order of prior sanction by a person aggrieved by the order within 30 days from the date of its receipt. It is clear that the 4^th respondent was not a person aggrieved by Ext.P1 order. Since there is no provision for filing a revision against an order of prior sanction, I am of the view that the exercise of power by the Government in Ext.P4 was completely incompetent.

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I am of the opinion that Ext.P4 order of the Government cannot be sustained. Ext.P4 is therefore set aside. The respondents are directed to take further steps, in accordance with law, pursuant to Exts.P1 and P3 orders.

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Writ petition is ordered accordingly.

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Sd/ANU SIVARAMAN, JUDGE

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T.Ayissu v. the State of Kerala

Case brief

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T.Ayissu v. the State of Kerala

Case brief

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