Allowed

R. Mehaboob v. State of Kerala

Kerala HC29 Nov 2018WP(C)/16287/2018

Case brief

AI extract

What is this about?

The High Court of Kerala held that the Kerala Education Department cannot enquire into the private law matters of a charitable trust regarding its member composition. The court set aside orders denying the petitioner's appointment as Manager, directing the Department to approve the appointment based on the trust's valid decision, noting the civil court suit pending on membership issues.

What did the court decide?

The impugned orders setting aside the Manager appointment were set aside. The Department is directed to approve the petitioner's appointment as Manager within two weeks based on the trust's decision,

R. Mehaboob Vs State of Kerala — Service and Employment | Kerala HC (2018)

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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.MUHAMED MUSTAQUE

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THURSDAY, THE 29TH DAY OF NOVEMBER 2018 / 8TH AGRAHAYANA, 1940

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WP(C).No.16287 of 2018

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PETITIONER:

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R. MEHABOOB MANAGER, NADUKKUNNU HIGH SCHOOL, PATHANAPURAM, KOLLAM DISTRICT.

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BY ADVS. SRI.GEORGE POONTHOTTAM SMT.NISHA GEORGE

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RESPONDENTS:

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

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2 THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM - 695 001.

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3 THE DISTRICT EDUCATIONAL OFFICER PUNALUR, KOLLAM DISTRICT - 691 305.

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4 BEEGUM B.JAHANNAR CLERK, NADUKKUNNU HIGH SCHOOL,PATHANAPURAM, KOLLAM DISTRICT - 689 695.

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ADDL. ASEENA.P R5 W/O LATE R.MAHARAJ PATHANAPURAM, ASSISTANT GRADE-2, MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS, ATHIRAMPUZHA, KOTTAYAM, PIN-686560.

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ADDL. R.MEHAJAB

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R6 S/O K.RASAVU MOHAMMED, AGED 57 YEARS, RESIDING AT SURUMI COTTAGE HOUSE, PATHANAPURAM P.O., KOLLAM, PIN-689 695.

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W.P.(C) No.16287/2018

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ADDL. NOUSHAD.R R7 AGED 49 YEARS S/O K.RASAVU MOHAMMED, RESIDING AT MEHABOOB MANZIL, PATHANAPURAM P.O., KOLLAM, PIN-689 695.

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ARE IMPLEADED AS ADDITIONAL 5TH RESPONDENT ADN ADDITIONAL 6TH TO 7TH RESPONDENTS AS PER ORDER DTD.20/6/18 IN I.A No.9684/18 AND I.A 9695/18 RESPECTIVELY IN W.P.(C) No.16287/18. BY ADVS. SRI.S.ABDUL RAZZAK SRI.N.ANAND

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OTHER PRESENT:

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SMT.G.RANJITA, GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.16287/2018

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J U D G M E N T

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This case depicts the dilemma of public authorities to draw a distinction between public law and private law in matters arising under the Kerla Education Act.

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The K.R.M Educational and Charitable Trust is a trust having separate legal entity distinct from the members who compose such trust.

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The trust was formed by late Sri.Rasavu Mohammed. The initial members are his male children. Sri.Rasavu Mohammed passed away. So also two of his male children passed away. The available members of the trust decided that the petitioner-Mehaboob shall be the Chairman of the trust. As per the bye law, the Manager of the school is the Chairman of the trust.

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The petitioner approached the District Educational Officer, Punalur for approving him as Manager. The District Educational Officer approved the Managership of the petitioner for a period of three years in accordance with the byelaw. It appears that Sri.Mehaboob had produced the legal heir certificate issued by the Tahsildar, Pathanapuram showing

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that the male children are the legal heirs of Sri.Rasavu Mohammed. Thereafter it appears that the legal heir certificate has been cancelled by

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W.P.(C) No.16287/2018 4

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the Revenue Divisional Officer and the trust decided to appoint Sri.Noushad, the brother of the petitioner as Manager. That was not allowed by Ext.P8 stating that the legal heir certificate has been cancelled by the Revenue Divisional Officer. This order was under challenge before the Director of Public Instruction. Therein the petitioner was unsuccessful. Again the petitioner approached the Government in revision. There also, the petitioner was unsuccessful.

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It is to be noted that the Government considered the matter in detail and after referring to the trust deed and bye law, the Government was of the view that since the legal heir certificate has been cancelled, the petitioner or Sri.Noushad could not be appointed as Manager. It was further ordered that the trust cannot continue with three members and appropriate action shall be taken to fill the vacancies in trust. Accordingly, the revision filed by the petitioner was rejected by the Government.

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As already noted, the trust is having a separate legal entity. The existence of the trust or its continuation is not depend upon the death of any of the members. Neither the department nor the contesting respondents have a case that the trust has become extinct on death of members. The trust, as a matter of fact, remains intact. If any persons

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W.P.(C) No.16287/2018

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who are eligible and entitled to become members are not included in the trust deed, it is for them to take up the matter before the competent civil court. It is submitted by the learned counsel for the party respondents that they have already approached the civil court seeking relief. No doubt, if the civil court allows the claim, the decision of the members would depend upon the majority decision. So long as the persons who are now arrayed as private parties herein are not included in the trust deed, they cannot be a part of the trust. The enquiry need to be conducted by the public authorities was only in relation to the decision of the trust. If the decision of the trust is valid and it has taken by the persons who are competent to take the decision, there need not be further probe in regard to the nature of composition of the trust. If anybody is aggrieved, it is for them to seek remedy under private law or through civil court. Unfortunately, the public authorities have mixed up private law and public law and drawn wrong conclusion based on wrong premise. Nobody in the trust has disputed the decision of the trust to appoint Sri.Mehaboob or Sri.Noushad as Manager. Therefore, the department is bound to act upon such decision of the trust unless any competent civil court restrains the trust from taking such decision.

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W.P.(C) No.16287/2018

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Therefore, the impugned orders are set aside. The department is directed to approve the appointment of the Manager based on the decision taken by the trust to that effect. Accordingly, the appointment of the District Educational Officer is set aside. The trust is free to choose the Manager and based on the decision, the department shall take steps to approve such Manager. Appropriate decision shall be taken within a period of two weeks from the date of receipt of such request. It is made clear that the decision of the trust would depend upon the decision in O.S No.1/2018 pending before Sub Court, Punalur.

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This writ petition is disposed of as above.

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Sd/-

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A.MUHAMED MUSTAQUE

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JUDGE

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smp

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W.P.(C) No.16287/2018

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APPENDIX OF WP(C) 16287/2018

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE TRUST DEED DATED 15/2/2005
EXHIBIT P2	TRUE COPY OF THE MINUTES OF THE MEETING OF TRUSTEES DATED 11/2/2007.
EXHIBIT P3	TRUE COPY OF THE CONSTITUTION OF THE NADUKKUNNU HIGH SCHOOL AS SUBMITTED BEFORE THE DEO KOLLAM.
EXHIBIT P3(a)	TRUE COPY OF THE UN-AMENDED BYELAW OF THE NADUKKUNNU HIGH SCHOOL AS SUBMITTED BEFORE THE DEO KOLLAM, AND APPROVED BY THE DDE, KOLLAM.
EXHIBIT P3(b)	TRUE COPY OF THE AMENDMENT TO THE BYELAW OF THE NADUKKUNNU HIGH SCHOOL, AS SUBMITTED BEFORE THE DEO KOLLAM AND APPROVED BY THE DDE, KOLLAM.
EXHIBIT P4	TRUE COPY OF THE ORDER NO.B6/27911/06/K.DIS DATED 13/7/2007 PASSED BY THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM
EXHIBIT P5	TRUE COPY OF THE APPLICATION SENT BY THE PETITIONER BEFORE THE DEO, KOLLAM SEEKING APPROVAL OF HIS APPOINTMENT AS MANAGER, DATED 14/11/2014
EXHIBIT P6	TRUE COPY OF THE ORDER NO.B4/6733/2014 K.DIS DATED 15/7/2015 PASSED BY THE 3RD RESPONDENT
EXHIBIT P7	TRUE COPY OF THE LEGAL HEIR SHIP CERTIFICATE ISSUED IN THE NAME OF THE MEMBERS OF THE SURVIVING SONS AND MEMBERS OF THE TRUST DATED 4/2/2015
EXHIBIT P8	TRUE COPY OF THE ORDER DATED 28/7/2016, ISSUED BY THE DEO, PUNALUR
EXHIBIT P9	TRUE COPY OF THE ORDER NO.ET1/79954/2016/DPI/K.DIS DATED 25/3/2017 PASSED BY THE 2ND RESPONDENT

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W.P.(C) No.16287/2018

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EXHIBIT P10	TRUE COPY OF THE REVISION FILED BY THE PETITIONER BEFORE THE GOVERNMENT DATED 20/4/2017
EXHIBIT P11	TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE DEO, PUNALUR DATED 20/7/2017
EXHIBIT P12	TRUE COPY OF THE COMMUNICATION NO.B4/7408/15 GIVEN BY THE D.E.O PUNALUR DATED 7/10/2017
EXHIBIT P13	TRUE COPY OF THE APPEAL SUBMITTED BY SRI.R.MEHABOOB BEFORE THE DPI, DATED 16/11/2017
EXHIBIT P14	TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO.35418/2017 DATED 7/11/2017
EXHIBIT P15	TRUE COPY OF THE G.O.(RT) NO.1495/2018/G.EDN. DATED 19/4/2018 PASSED BY THE GOVERNMENT

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RESPONDENTS' EXHIBITS: NIL.

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True Copy

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P.S to Judge

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smp

R. Mehaboob v. State of Kerala

Case brief

What is this about?

What did the court decide?

R. Mehaboob v. State of Kerala

Case brief

What is this about?

What did the court decide?

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