Remanded

K.v.Syed Mohammed v. State of Kerala

Kerala HC9 Nov 2016WP(C)/21230/2016

Case brief

AI extract

What is this about?

High Court disposed of successive writ petitions regarding appointment of a school Manager. It directed the Government to consider a pending appeal on merits and set aside a prior order that relegated parties to civil court, ordering common disposal with another pending petition.

What did the court decide?

Set aside Ext.P11; Government to consider Ext.P4 pending appeal on merits within three months by common order with WP(C) No. 23538/2016 after hearing parties.

K.v.Syed Mohammed Vs State of Kerala — Education and Admissions | 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 MR.JUSTICE A.M.SHAFFIQUE

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WEDNESDAY, THE 9TH DAY OF NOVEMBER 2016/18TH KARTHIKA, 1938

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WP(C).No. 21230 of 2016 (C)

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PETITIONER:

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K.V.SYED MOHAMMED, KALLIVALAPPIL, THRITHALA- 679 634, PALAKKAD DISTRICT.

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BY SRI.P.RAVINDRAN (SENIOR ADVOCATE) ADVS.SRI.M.R.SABU

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SMT.APARNA RAJAN

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001.

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2. THE DISTRICT EDUCATIONAL OFFICER, OTTAPALAM-679 101.

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3. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM-695 001.

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4. M.SUKUMARAN, MANAGER, DR. K.B.MENON MEMORIAL HIGH SCHOOL, THRITHALA, PALAKKAD- 679 634.

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R1 TO R3 BY GOVERNMENT PLEADER SRI.C.P.PRADEEP R4 BY ADV. SRI.BABU PAUL

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-11-2016 ALONG WITH WPC.23538/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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WP(C).No. 21230 of 2016 (C)

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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P1 :	TRUE SOCI	COPY OF THE ETY.	BYELAW OF THE THRITHALA EDUCATION
P2 :	TRUE	COPY OF THE	DECISION OF THE BOARD ON 6.4.2007.
P3 :	TRUE	COPY OF THE	PROCEEDINGS DATED 30.4.2008.
P4 :	TRUE DATE	COPY OF THE D 7.5.2008.	OBJECTION FILED BY THE PETITIONER
P5 :	TRUE	COPY OF THE	ORDER OF THE DPI DATED 13.9.2012.
P6 :	TRUE	COPY OF THE	ORDER OF THE DEO DATED 20.6.13.
P7 :	TRUE DATE	COPY OF THE D 21.8.13.	ORDER IN I.A. 651/13 IN W.A 741/13
P8 :	TRUE DPI	COPY OF THE DATED 6.8.08.	REVISION PETITION FILED BEFORE THE
P9 :	TRUE DATE	COPY OF THE D 4.7.14.	JUDGMENT IN W.A. NO.741/13
P10 :	TRUE	COPY OF THE	ORDER OF THE DPI DATED 17.4.15.
P11 :	TRUE DATE	COPY OF THE D 2.6.16.	ORDER OF THE 1ST RESPONDENT

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RESPONDENT(S)' EXHIBITS:

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EXT.R4A: TRUE COPY	OF THE JUDGMENT IN WPC.NO.22910/2012.
EXT.R4B: TRUE COPY	OF THE LETTER DATED 24.6.2016.
EXT.R4C: TRUE COPY	OF THE LETTER DATED 27.6.2016.

//TRUE COPY//

P.S. TO JUDGE

mbr/

A.M. SHAFFIQUE, J.

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=============== W.P. (C) Nos. 21230 & 23538 of 2016

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======================

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Dated this, the 9^th day of November, 2016

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J U D G M E N T

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These two writ petitions concern the same issue and therefore are decided by a common judgment.

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The issue projected by the petitioners is with reference to appointment of Manager of an educational agency, viz., Dr.K.B.Menon Memorial High School, Thrithala. Presently, the dispute is between the petitioner and the 5^th respondent in WP(C) No. 23538/2016, Mr.M.Sukumaran.

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The short facts involved in WP(C) No. 23538/2016 would disclose that in an earlier writ petition filed by the petitioner as WP (C) No. 22910/2012, this Court by judgment dated 21/1/2013 while interfering with the orders passed by the District Educational Officer as well the Director of Public Instruction directed the management of the school to be handed over to the petitioner. It is stated that an appeal was filed against the said judgment as WA No.741/2013. During the pendency of the said writ appeal, the petitioner Sri.Abdu Rahman was handed over charge of the Manager on 16/3/2013.

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W.P(C) Nos. 21230 & 23538/16

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Subsequently it appears that the 5^th respondent, Sri.M.Sukumaran staked a claim that he was appointed as the Manager of the School on 24/3/2013. Based on the decision of the Board of Management, Sri.M.Sukumaran filed an impleading petition in WA No.741/2013. By an interim order dated 21/8/2013, this Court while allowing the impleading petition directed Sri.Sukumaran not to make any appointments in the school in question until further orders. In the meantime, petitioner as well as the petitioner in WP(C) No. 21230/2016 preferred appeals before the Director of Public Instruction (DPI) challenging the order passed by the District Educational Officer approving Sri.M.Sukumaran as the Manager of the educational agency. At the time when the writ appeal was taken up for hearing, appeals were pending before the Director of Public Instruction. Hence, writ appeal was disposed of initially directing consideration of the revisions before the Government, which was later corrected as appeals before the DPI. The appeals were decided against the petitioners. Petitioners preferred further appeals before the Government. Ext.P11 in WP (C) No. 21230/2016 is the order passed in the appeal filed by the said petitioner. In regard to WP(C) No. 23538/2016, contention is

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W.P(C) Nos. 21230 & 23538/16

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that Ext.P4 appeal filed before the Government against the order of the Director of Public Instruction has not been decided so far and therefore, the prayer is for a direction to the Government to consider Ext.P4 in accordance with law.

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In WP(C) No. 21230/16, petitioner challenges Ext.P11 inter alia contending that though direction issued in the appeal was for a consideration of the matter on merits, neither the Director of Public Instruction nor the Government had considered the matter on merits but has only relegated the parties to approach the Civil Court to seek appropriate orders.

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Counter affidavit has been filed by Sri.M.Sukumaran, the 5^th respondent in WP(C) No. 23538/16, who is the 4^th respondent in WP(C) No. 21230/2016 inter alia submitting that after the management was handed over to petitioner in WP(C) No. 23538/2016, the Board of Management was reconstituted in the presence of the petitioners and accordingly decision was taken to appoint the Manager. Documents were filed before the District Educational Officer. After hearing the affected parties, the same has been approved. It is submitted that the main contention urged by the petitioners is that their signatures had been forged

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W.P(C) Nos. 21230 & 23538/16

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-:4:-

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by the Board of Management which issue cannot be decided by the educational authorities and therefore the Government was justified in relegating the parties to approach the Civil Court. That apart, as far as Ext.P4 appeal filed by the petitioner in WP(C) No. 23538/16 is concerned, there is no material to indicate that the said appeal is on record and therefore there is no reason to entertain this writ petition as well.

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On the other hand, learned Government Pleader while supporting the stand taken by the Government submits that the entire issues relating to the educational agency including approval of the Manager has been considered in Ext.P11 and to the limited extent of jurisdiction the Government had with regard to the approval of management. The Government had considered the same and having found that the Board of Management had been properly constituted, the parties were relegated to the civil court to consider other issues relating to the management of the educational agency. It is therefore contended that, as matters stand now, Sri.M.Sukumaran is considered as the Manager of the School and a different view cannot be taken in the matter presently. However, it is submitted by the learned Government

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W.P(C) Nos. 21230 & 23538/16

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-:5:-

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Pleader that Ext.P4 in WP(C) No. 23538/16 has not been disposed of so far.

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Primarily, the issue in WP(C) No. 23538/16 is regarding the pendency of Ext.P4. Necessarily, Ext.P4 revision ought to have been considered by the Government while disposing of Ext.P11 in WP(C) No. 21230/16. It appears that no orders had been passed in Ext.P4. Learned senior counsel appearing for the petitioner would submit that the contention urged by the petitioner had not been considered while disposing of Ext.P11 and therefore an independent hearing is required as far as Ext.P4 appeal is concerned.

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With reference to Ext.P11 order, the main challenge raised by the learned senior counsel for the petitioner is with reference to the manner in which the 4^th respondent has been appointed as the Manager. It is pointed out that all along the petitioner was challenging the appointment of the petitioner in WP(C) No. 22910/2012 as the Manager as well as the appointment of Sri.M.Sukumaran as the Manager. It is pointed out that Sri.M.Sukumaran staked a claim that he is the Manager by filing IA No.651/13 in WA No.741/13. The matter was considered

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W.P(C) Nos. 21230 & 23538/16

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and this Court having taken note of the factual circumstances involved in the matter had passed the following order:-

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“Impleading application filed by one Mr.M.Sukumaran in I.A.No.651 of 2013 is allowed, since respondents have no objection. Registry is directed to make necessary changes in the cause title. In support of I.A.No.651 of 2013 Annexures A1 and A2 are produced indicating that the so called resolution in the meeting of the Board of Management dated 24.03.2013 and so also handing over of charge by 1^st respondent herein to the impleading applicant who is alleged to have been appointed as Manager of the school in the above said meeting of the Board of Management dated 24.3.2013.

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2. We direct the impleading Additional respondent Mr.Sukumaran to produce the original of Annexure A2 before the Court. Meanwhile, having regard to the role played by the DEO, Ottapalam, it is just and proper to bring on record Deputy Director of Education, Palakkad district as party respondent, in view of the fact that DEO concerned seems to have passed orders without any rhyme or reason supporting every Manager who comes with a resolution of meeting, in spite of direction of this Court in the judgment dated 21.1.2013.

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3. Having regard to the serious allegations so far as the appointment of the impleading

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W.P(C) Nos. 21230 & 23538/16

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respondent as the Manager, we direct him not to make any appointments in the school in question till further orders.”

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It is therefore contended that when the petitioner himself has challenged the judgment in WP(C) No. 22910/2012 by filing WA No.741/13, there cannot be any situation where the petitioner along with Sri.Abdu Rahiman would agree to reconstitute the Board of Management and approve the appointment of Sri.Sukumaran as the Manager of the School. It is further contended that as per the byelaws of the educational agency, the Board of Management ought to have nine members and by lapse of time, several of the members had expired and therefore at the instance of the educational authorities, it was decided to enhance the number of members of the Board of Management. However, without the approval by the existing members of the Board of Management, the entire management of the educational agency was taken over at the instance of Sri.M.Sukumaran.

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The short question to be considered in the matter was whether the District Educational Officer was justified in approving

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W.P(C) Nos. 21230 & 23538/16

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the appointment of Sri.M.Sukumaran as the Manager of the educational agency. Ext.P6 is the order dated 20/6/2013. By Ext.P6, it appears that after hearing the respective parties, the District Educational Officer proceeded on the basis that the Board of Management held on 24/3/2013 elected Sri.M.Sukumaran as the new Manager of the School.

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The very issue raised by the petitioners is regarding the manner in which the Board of Management had been constituted. When such an issue had been raised especially in the light of the factual circumstances involved in the matter regarding the pendency of the writ appeal and the directions issued pursuant to the same, it would have been appropriate for the Government to have considered the matter on merits. As rightly contended by the learned senior counsel for the petitioner in WP(C) No. 21230/16, the fact that they were all along challenging the constitution of the Board of Management at the relevant time and the appointment of Sri.M.Sukumaran and the fact that they have not actually signed the documents produced before them were all matters which ought to have been prima facie considered by the Government before arriving at a decision.

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W.P(C) Nos. 21230 & 23538/16

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Such issues are not seen properly considered in Ext.P11 order though Government have proceeded on the basis that a decision was taken in a properly constituted meeting. The very fact that a decision had been taken on 24/3/2013 when the writ appeal was pending was a factor which ought to have been taken note of by the educational authorities and the Government while adjudicating on such issues. But it seems that the circumstances in which the Board of Management had taken a decision on 24/3/2013 especially at a stage when the writ appeal was pending and whether the petitioners could have agreed to such a decision are all matters which ought to have been considered by the Government before approving the decision of the Board of Management. In the said circumstances, I am of the view that the matter requires a fresh consideration especially on account of the fact that Ext.P4 in WP(C) No. 23538/2016 is pending consideration.

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In the result, these writ petitions are disposed of in the following manner:-

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(i) In WP(C) No. 23538/2016, Government shall consider Ext.P4 and pass an order within a period of three months from the

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W.P(C) Nos. 21230 & 23538/16

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date of receipt of a copy of this judgment after hearing the affected parties.

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(i) In WP(C) No. 21230/16, Ext.P11 is set aside and the 1^st respondent shall consider the revision dated 24/4/2015 along with Ext.P4 in WP(C) No. 23538/16 and both the matters shall be disposed of by a common order.

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Sd/- A.M. SHAFFIQUE, JUDGE

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Rp9/11/2016

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//True Copy//

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P.S to Judge

K.v.Syed Mohammed v. State of Kerala

Case brief

What is this about?

What did the court decide?

K.v.Syed Mohammed v. State of Kerala

Case brief

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