Disposed

Fr.Joseph Tholath v. the Asst. Educational Officer

Kerala HC16 Aug 2016WP(C)/6714/2011

Case brief

AI extract

What is this about?

The Court disposed of the writ petition regarding school management change without deciding merits. It directed the petitioner to seek information on the proposed manager's approval from authorities or order them to grant notice and hearing before decision.

What did the court decide?

Writ petition disposed; liberty granted to challenge any future approval or order authorities to provide notice before decision.

Fr.Joseph Tholath Vs the Asst. Educational Officer — 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 ALEXANDER THOMAS

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TUESDAY, THE 16TH DAY OF AUGUST 2016/25TH SRAVANA, 1938

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WP(C).No. 6714 of 2011 (L)

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PETITIONER(S):

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FR. JOSEPH THOLATH, VICAR, ARTHAT KUNNAMKULAM (ST.MARY'S) ORTHODOX SYRIAN CHURCH, ARTHAT P.O., KUNNAMKULAM.

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BY ADV. SRI.DEEPU THANKAN.

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RESPONDENT(S):

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1. THE ASST. EDUCATIONAL OFFICER, KUNNAMKULAM-680 503.

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2. THE MANAGER, MPM UP SCHOOL, MARUTHANKODE, KUNNAMKULAM, PIN-680 604.

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3. MAR PHILIXINOSE TRUST, MARUTHANKODE, KUNNAMKULAM-680 604., REP. BY ITS MANAGING TRUSTEE.

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ADDL. R4 IMPLEADED

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4. SHRI.K.T. BENNY, S/O. K.V. THARU, 2C GOOD EARTH HYMNS OF LIFE, P.O. KUSUMAGIRI, KAKKANAD, PIN-682 030.

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ADDL. R4 IS IMPLEADED AS PER ORDER DATED 16/08/2016 IN I.A. NO.14076/2011.

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R1 BY GOVT. PLEADER SRI.P.V. ELIAS. R2 & R3 BY ADVS. SRI.P.T.GIRIJAN, SRI.M.S.NARAYANAN, SRI.N.SUBRAMANIAM.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 6714 of 2011 (L)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P1 COPY OF THE TRUST DEED. EXT.P2 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT DATED 04/01/2010.

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EXT.P3 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER ON 04/07/2011.

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EXT.P4 COPY OF THE DECREE IN O.S. NO.1003/2002 ON THE FILE OF THE PRINCIPAL SUB JUDGE, THRISSUR.

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EXT.P5 COPY OF THE LETTER OF THE 2ND RESPONDENT ALONG WITH THE COVERING LETTER OF THE PUBLIC INFORMATION OFFICER UNDER THE 2ND RESPONDENT DATED 27/05/2010.

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RESPONDENT'S EXHIBITS:-

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EXT.R2A COPY OF THE APPROVAL OF MANAGERSHIP OF K.V. THARU BY DPI.

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EXT.R2B COPY OF THE LETTER OF AEO TO MANAGER FOR SENDING CONSTITUTION OF MANAGEMENT FOR TRANSMISSION TO DIVISIONAL EDUCATIONAL OFFICER AT ERNAKULAM.

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EXT.R2C COPY OF THE RULES OF CONSTITUTION FRAMED UNDER MAR PHELEXINOS TRUST 1032 DATED 20/07/1957 SIGNED BY ALL THE NINE TRUSTEES WHEN ALL OF THEM WERE ALIVE.

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EXT.R2D COPY OF THE COVERING LETTER SENT BY MANAGER OF MPMUP SCHOOL TO AEO.

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EXT.R2E COPY OF THE RESOLUTION PASSED BY REMAINING MEMBERS OF THE MAR PHELEXINOS TRUST.

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EXT.R2F COPY OF THE RESOLUTION NOMINATING K.THARU BENNY (K.T. BENNY) AND THARU KOLLANNUR AS MEMBERS OF BOARD OF TRUSTEE.

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EXT.R2G RULES REGARDING MANAGEMENT OF MPMUP SCHOOL.

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....2/-

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WP(C).No. 6714 of 2011 (L)

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EXT.R2H COPY OF THE REPORT SENT BY RESPONDENT TO AEO BY REGISTERED ACKNOWLEDGMENT DUE.

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EXT.R2I COPY OF THE TRUST DEED.

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EXT.R4(1) COPY OF THE REPRESENTATION SUBMITTED TO THE EDUCATIONAL AUTHORITIES.

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EXT.R4(1) [IN I.A. NO.8014/2016]: COPY OF THE STAFF LIST AND SENIORITY LIST IN M.M. UP SCHOOL MARANTHCODE SUBMITTED AND SIGNED BY 4TH RESPONDENT AND PROVISIONALLY APPROVED BY A.E.O., KUNNAMKULAM ON 08/01/2016.

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EXT.R4(2) COPY OF THE LETTER DATED 09/06/2015 FROM ADDITIONAL CHIEF SECRETARY TO DIRECTOR OF PUBLIC INSTRUCTION TO APPOINT SMT.LEENA AS OFFICE STAFF.

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EXT.R4(3) APPOINTMENT ORDER AND APPROVAL ORDER OF LINA E.S. AS OFFICE ASSISTANT IN M.M. UP SCHOOL MARANTHCODE RECEIVED BY THE PETITIONER/RESPONDENT NO.4 ON 20/06/2016.

//TRUE COPY//

P.S. TO JUDGE

rs.

ALEXANDER THOMAS, J.

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W.P.(C).No. 6714 of 2011

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

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Dated this the 16^th day of August, 2016

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J U D G M E N T

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The Prayers in this Writ Petition (Civil) are as follows:

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“i) issue a writ of mandamus or any other appropriate writ or order, directing the 1^st respondent to consider Ext.P-1 and pass appropriate order in it;

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ii) issue a writ of mandamus or any other appropriate writ or order, or direction directing the 1^st respondent to change the management of the MPM UP School as a corporate educational agency in view of Ext.P-1 trust deed;

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and

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iii) pass such other orders as this Hon'ble Court deems fit, proper and necessary in the circumstances of the case.”

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One Sri.K.V.Tharu, then aged 83, had filed the counter

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affidavit dated 1.6.2011 for and on behalf of the contesting

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respondents 2 and 3. Subsequently, official respondent No.1 had

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filed a counter affidavit dated 13.12.2011 in this matter and paras 8

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and 9 thereof read as follows:

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It is submitted that, Sri.K.V.Tharu (Manager) had executed a Will dated 24.11.2005 and registered it as document No.367/2005 of Ernakulam Sub Registering Office. As per the 2^nd Para of Page 2 of the Will, the Manager-ship of the school is bequeathed to Sri.K.T.Benny on demise of the Executer of the Will. Sri.K.V.Tharu, Managing Trustee of the Trust and Manager of the school expired on 26.06.2011. Petitioner, Fr.Joseph Tholath submitted a representation dated 04.07.2011 before the Assistant

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W.P.(C).6714/11 - : 2 :-

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Educational Officer. He apprehended that the legal heirs of the deceased Manager may appoint any of them as Manager of the school and submitted proposal for approval of Manager. The request of the petitioner is not to approve the appointment of a new person as Manager till disposal of the Writ Petition by this Hon'ble Court.

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It is submitted that on the demise of existing Manager, Sri.K.V.Tharu on 26.06.2011, Sri.K.T.Benny, his son submitted a proposal dated 25.07.2011 to the Assistant Educational Officer, with request to approve him as the Manager of the school. However, the said proposal has not been acted upon by the 1^st respondent till date, as the dispute over the trust is pending before this Hon'ble Court in the above Writ Petition. Since the then approved Manager, Sri.K.V.Tharu has nominated his son as the new Manager, as per his Will dated 24.11.2005, this respondent will have to consider the same as per law. Petitioner, Fr.Joseph Tholath the Vicar of Arthat Kunnmkulam (St.Mary's) Orthodox Syrian Church has no locus standi to object the approval of appointment of Sri.K.T.Benny as the Manager of the school. If there arises any dispute over the violation of trust deed it has to be settled through a Civil Court. Dispute in respect of election of the Managing Body is beyond the jurisdiction of an Educational Officer. The matter touching the civil rights of the parties comes within the jurisdiction of Civil Court's and outside the jurisdiction of Educational authorities.”

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Later the Writ Petitioner had filed an application as I.A.No.14076/2011 to implead one K.T.Benny, S/o.K.V.Tharu, as additional respondent No.4 in the W.P.(C)., which was allowed by this Court on 26.8.2011. Later the additional respondent No.4 had also sworn to counter affidavit dated 5.9.2011 pointing out that from the date of death of the previous manager, (late Sri. K.V.Tharu) the said additional respondent has been discharging the duties and functions of the manager of the school and Ext.R-4(1) application dated 25.7.2011 has been submitted before the educational authorities concerned for granting approval of the managership of

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W.P.(C).6714/11 - : 3 :-

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the school to the said party.

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When the matter was taken up for consideration today, Sri.N.Subramaniam, learned counsel appearing for respondents 2, 3 and 4, submits on the basis of the instructions that subsequently the educational authorities concerned had granted necessary orders approving the managership of the school in favour of additional respondent No.4. Whereas, on the other hand, Sri.Deepu Thankan, learned counsel for the writ petitioner submits that, to the best of the knowledge of his party, no such approval has been granted by any competent educational authorities concerned in respect of the claimed managership of respondent No.4. Sri.Deepu Thankan would contend further on behalf of the petitioner that the competent authorities concerned can take a decision in the matter regarding the claim of the 4^th respondent for approval as the manager of the school only in accordance with the provisions contained in the trust deed concerned. Sri.Deepu Thankan, learned counsel for the petitioner has also a further case that additional respondent No.4 has never been a member of the above said trust. Sri.N.Subramaniam, learned counsel for respondent Nos.2 to 4 would place reliance on Exts.R-4(1), R-4(2) and R-4(3) to contend

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W.P.(C).6714/11 - : 4 :-

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that the educational authorities had granted approval/recognition to the 4^th respondent as the manager of the school. The above said rival submissions are recorded.

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It is open to the writ petitioner to immediately approach the competent educational authorities concerned to grant him necessary information as to whether the educational authorities had granted any approval for the claimed managership of R-4 and if that be so, papers in that regard should be immediately furnished to the writ petitioner. On the other hand, if no such approval has so far been granted, relevant information in that regard should also be furnished to the writ petitioner, by those authorities concerned. Depending on the actual state of affairs, it is ordered that in case any such approval has been granted to additional respondent No.4, then the petitioner will be at liberty to challenge such approval proceedings in the manner known to law and the time spent for prosecuting this Writ Petition from the date of institution of the Writ Petition (3.3.2011) upto one month from the date of receipt of a certified copy of this judgment will stand excluded for computating any limitation for any such purpose. On the other hand, if no such approval has been granted in the matter of the claimed

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W.P.(C).6714/11 - : 5 :-

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managership of R-4, then the educational authorities concerned will ensure that they take any decision on such claim of R-4 only after giving prior notice and after affording a reasonable opportunity of being heard to writ petitioner as well.

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In view of these aspects, without entering into the merits of the matter, the Writ Petition (Civil) stands finally disposed of, recording the submissions of the parties as noted above and also granting liberty to the writ petitioner as noted herein above.

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Sd/-

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sdk+

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ALEXANDER THOMAS, JUDGE

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///True Copy///

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P.S. to Judge

Fr.Joseph Tholath v. the Asst. Educational Officer

Case brief

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Fr.Joseph Tholath v. the Asst. Educational Officer

Case brief

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