Dismissed

Sree Nihtyananda Vidya Kendra v. the Principal, Swami Nihtyananda Polytechnic College

Kerala HC1 Nov 2021WA/1349/2021

Case brief

AI extract

What is this about?

Court dismissed the appeal, holding that a writ petition filed by the society's Secretary to challenge internal appointment irregularities is not maintainable. Such disputes should be pursued in civil court or before the technical education authority.

What did the court decide?

Writ Appeal dismissed as devoid of merit; alternate remedies (civil suit or administrative appeal) suggested.

Sree Nihtyananda Vidya Kendra Vs the Principal, Swami… — Company and Corporate | Kerala HC (2021)

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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.K.JAYASANKARAN NAMBIAR

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THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

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MONDAY, THE 1^ST DAY OF NOVEMBER 2021 / 10TH KARTHIKA, 1943

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WA NO. 1349 OF 2021

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AGAINST THE JUDGMENT DATED 17.09.2021 IN WP(C) 18032/2021 OF HIGH COURT OF KERALA, ERNAKULAM

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APPELLANT/PETITIONER IN WP(C):

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SREE NIHTYANANDA VIDYA KENDRA KANHANGAD - 671 315, KASARAGOD REPRESENTED BY ITS SECRETARY, T.PREMANAND, AGED 57 YEARS, S/O.RAVEENDRAN NAIR, RESIDING AT PUTHIYA VEETTIL, ANAND VIHAR, AZHIKODE, KANNUR, PIN - 670 009.

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BY ADVS. ELVIN PETER P.J. K.R.GANESH GOURI BALAGOPAL ABHIJITH.K.ANIRUDHAN

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RESPONDENTS/RESPONDENTS IN WP(C):

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1 THE PRINCIPAL, SWAMI NIHTYANANDA POLYTECHNIC COLLEGE KANHANGAD - 671 315.

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2 THE JOINT DIRECTOR REGIONAL DIRECTORATE OF TECHNICAL EDUCATION, MALAPARAMBA, KOZHIKODE - 673 009.

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3 THE SENIOR JOINT DIRECTOR OF TECHNICAL EDUCATION DIRECTORATE OF TECHNICAL EDUCATION, PAZHAVANGADI, THIRUVANANTHAPURAM - 695 023.

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4 R.NITHYANDA KHODAY. CHAIRMAN, GOVERNING BODY OF SWAMI NITHYANANDA, POLYTECHNIC COLLEGE, KANHANGAD - 671 315.

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5 SEBASTIAN THOMAS

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Writ Appeal No.1349 of 2021

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PRINCIPAL-IN-CHARGE, SWAMI, NITYANANDA POLYTECHNIC COLLEGE, KANHANGAD - 671 315.

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6 A.M.NARAYANAN DEMONSTRATORM SWAMINITHYANANDA POLYTECHNIC COLLEGE, KANHANGAD - 671 315.

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7 ALL INDIA COUNCIL FOR TECHNICAL EDUCATION REPRESENTED BY ITS CHAIRMAN, HEAD OFICE, C8, 8436, GATE NO.4, OPPOSITE RYAN INTERNATIONAL SCHOOL, VASANT KUNJ, NEW DELHI - 110 070.

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BY ADV SRI.V.SAJITH KUMAR

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Writ Appeal No.1349 of 2021

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JUDGMENT

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A.K.Jayasankaran Nambiar, J.

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This Appeal is preferred by the petitioner in W.P(C).No.18032 of 2021 aggrieved by the judgment dated 17.09.2021 of the learned Single Judge.

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The brief facts necessary for disposal of the Writ Appeal are as follows:

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The appellant/petitioner is the Sree Nithyananda Vidya Kendra (hereinafter referred to as the 'Vidya Kendra') represented by its Secretary. The Vidya Kendra is stated to be a charitable society registered under the Societies Registration Act, 1860. It was established with the object of establishing educational institutions including technical institutions to cater to the educational needs of the students in Kasaragod District and elsewhere. The Vidya Kendra accordingly established, the Swami Nithyananda Polytechnic College, which is an aided college admitted under the direct payment system of the Government of Kerala and recognised by the All India Council for Technical Education (AICTE). The college is stated to be governed by a Governing Body that is expected to comply with the requirements of the AICTE and the Kerala Technical Education (Private Engineering

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Writ Appeal No.1349 of 2021

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Colleges/Polytechnics) Service Rules, 1975. As per the said Service Rules, the appointments and promotions in the aided Polytechnic Colleges have to be made by the respective managements, and in the instant case, on the recommendation of the Governing Body of the college.

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It would appear that the Chairman of the Vidya Kendra had taken steps to appoint a Principal and Lecturer to the Polytechnic College, which according to the appellant/petitioner was contrary to the Statutory Rules governing such appointments. It was the specific case of the appellant/petitioner that while making the appointments aforesaid, the Chairman of the Governing Body/the Vidya Kendra acted without the recommendations of the Governing Body of the college, and on his own whims and fancies, thereby violating the Statutory Rules in the process. When the college was apprehensive of coercive action being initiated by the AICTE for the infraction of the statutory rules, it preferred the writ petition before this Court seeking to quash the appointments made by the Chairman of the Governing Body and seeking a direction to the Joint Director and Senior Joint Director of Technical Education, Directorate of Technical Education of the State of Kerala not to approve the appointments of the Principal and Lecturer (5^th and 6^th respondents) appointed by the Chairman in the Swami Nithyananda Polytechnic College, Kanhangad.

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Writ Appeal No.1349 of 2021

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The learned Single Judge who considered the matter was of the view that the issue projected in the Writ Petition was essentially an internal dispute of the Vidya Kendra, a charitable society registered under the Societies Registration Act. It was opined that the infighting among the members of the society could not be the subject matter of, or give rise to a cause of action for, a Writ Petition under Article 226 of the Constitution of India. The Writ Petition was accordingly dismissed as not maintainable.

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In the proceedings before us, it is the submission of Sri.Elvin Peter, the learned counsel for the appellant/petitioner that the learned Single Judge erred in dismissing the Writ petition as not maintainable because what was essentially projected in the Writ Petition was a violation of statutory rules governing appointments to the Polytechnic College, and therefore, inasmuch as there was a irregularity in the exercise of a public duty by the Chairman of the Governing Body of the college, this Court was competent to entertain the dispute under Article 226 of the Constitution of India.

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We have given our anxious consideration to the submissions of the learned counsel but we find ourselves unable to accept the said contention. While it may be a fact that in making appointments to the

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Writ Appeal No.1349 of 2021

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post of Principal and Lecturer in a Polytechnic College the management of the college may be exercising a public function, the aspect to be considered in the instant case is at whose instance the Writ Petition was filed before this Court. While a Writ Petition alleging an irregularity in the discharge of a public duty could perhaps have been maintained by a candidate aspiring for the post of Principal or Lecturer in the Polytechnic College, we are of the view that when the irregularity in the making of appointments is pointed out by the Secretary of the Vidya Kendra acting on behalf of the society itself, then it is a matter that ought to be pursued before a civil court of competent jurisdiction since the action complained of is essentially with regard to an irregular exercise of power conferred under the bye-laws or regulations of the society. The learned counsel for the appellant/petitioner also draws our attention to Rule 18 of Ext.P9 Service Rules, which mandates that permanent appointments and promotions made in deviation of the rules shall be subject to the approval of the Director of Technical Education, Kerala or his delegate.

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We are of the view that the remedies available to the appellant/petitioner are essentially two fold, namely, to approach the civil court seeking a declaration and consequential injunction against the Chairman of the Governing Body so as to ensure that the latter acts strictly in accordance with the Bye-laws/Regulations of the society as

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Writ Appeal No.1349 of 2021

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also the Statutory Rules in the matter of making appointments. Simultaneously, the appellant/petitioner may also move the Director of Technical Education, Kerala or his delegate by bringing to the latter's notice, the alleged irregularities in the appointments made by the Chairman of the Governing Body in violation of the Statutory Rules and requesting him to look into the same. We are in agreement with the finding of the learned Single Judge that the writ petition is not maintainable at the instance of the petitioner/appellant.

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Thus without prejudice to the alternate remedies available to the appellant/petitioner as indicated above, we dismiss the Writ Appeal as devoid of merit.

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Sd/-

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A.K.JAYASANKARAN NAMBIAR JUDGE

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Sd/-

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MOHAMMED NIAS C.P. JUDGE

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mns

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Writ Appeal No.1349 of 2021

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APPENDIX OF WA 1349/2021

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PETITIONER ANNEXURES

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Annexure A1

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TRUE COPY OF THE MINUTES OF THE GENERAL BODY MEETING OF SREE NITHYANANDA VIDYA KENDRA HELD ON 12/10/2019, ELECTING THE NEW BOARD OF DIRECTORS AND ALSO RECONSTITUTING THE GOVERNING BODY OF SWAMI NITHYANANDA POLYTECHNIC COLLEGE.

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Annexure A2 TRUE COPY OF THE REGULATION ISSUED BY THE AICTE DATED 01/03/2019.

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Annexure A3

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TRUE COPY OF THE JUDGMENT OF THE DIVISION BENCH OF THIS HON'BLE COURT IN OP(KAT) NO.542/2019 OF THIS HON'BLE COURT DATED 22/12/2020.

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RESPONDENTS ANNEXURE:NIL

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//TRUE COPY//

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P.A TO JUDGE

Sree Nihtyananda Vidya Kendra v. the Principal, Swami Nihtyananda Polytechnic College

Case brief

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Sree Nihtyananda Vidya Kendra v. the Principal, Swami Nihtyananda Polytechnic College

Case brief

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