Dismissed

K.v.Syed Mohammed v. State of Kerala

Kerala HC20 May 2022WP(C)/9044/2022

Case brief

AI extract

What is this about?

Three writ petitions filed by multiple petitioners challenging orders of the Government and Deputy Director of Education regarding the appointment of a manager for Thrithala Education Society were disposed of as gross abuse of the process of the Court due to filing of appeal instead of seeking leave to file to appeal.

What did the court decide?

Petitions dismissed with costs of Rs.25,000/- each payable to the Kerala High Court Bar Association.

K.v.Syed Mohammed Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶4

FRIDAY, THE 20TH DAY OF MAY 2022 / 30TH VAISAKHA, 1944
WP(C) NO. 9044 OF 2022

¶5

PETITIONER:

¶6

K.V.SYED MOHAMMED
KALLIVALAPPIL, THRITHALA, PALAKKAD 679 634
REPRESENTED BY (POWER OF ATTORNEY HOLDER M.T UMMER)
RESIDING AT MOORKKATHAZHATHU HOUSE, AALOOR, P.O
PATTITHARA, THRITHALA, PALAKKAD 679 534

¶7

BY ADVS.
P.RAVINDRAN (SR.)
LAKSHMI RAMADAS
APARNA RAJAN
SREEDHAR RAVINDRAN(K/559/2012)
M.R.SABU

¶8

RESPONDENTS:

¶9

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

¶10

2 THE DEPUTY DIRECTOR OF EDUCATION CIVIL STATION, PALAKKAD 678 001

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3 M. KRISHNADAS S/O. LATE KUTTIKRISHNAN NAIR, MELEPPURATH HOUSE, P.O MEZHATHUR, THRITHALA, PALAKKAD DISTRICT 679 334

¶12

BY ADV R.K.MURALEEDHARAN

¶13

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.05.2022, ALONG WITH WP(C).13578/2022, 25279/2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:

¶14

¶15

WP(C) NO. 9044 OF 2022 & Conn.cases

¶16

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

¶17

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶18

FRIDAY, THE 20TH DAY OF MAY 2022 / 30TH VAISAKHA, 1944
WP(C) NO. 13578 OF 2022

¶19

PETITIONER:

¶20

M.KRISHNADAS
AGED 61 YEARS
S/O. LATE KUTTIKRISHNAN NAIR,
TREASURER,
TRITHALA EDUCATION SOCIETY,
RESIDING AT MELEPPURATH HOUSE,
MEZHATHUR P.O,
PALAKKAD DISTRICT - 679534.
BY ADV R.K.MURALEEDHARAN

¶21

RESPONDENTS:

¶22

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

¶23

2 THE DIRECTOR OF GENERAL EDUCATION DIRECTORATE OF GENERAL EDUCATION, JAGATHI, THIRUVANANTHAPURAM - 695014.

¶24

3 THE DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD, PALAKKAD DISTRICT - 678001.

¶25

4 K.V. SAYED MOHAMMED, KALLIVALAPPIL, THRITHALA, PALAKKAD DISTRICT - 679634.

¶26

WP(C) NO. 9044 OF 2022 & Conn.cases

¶27

3

¶28

REPRESENTED BY (POWER OF ATTORNEY HOLDER M.T UMMER)
RESIDING AT MOORKKATHAZHATHU HOUSE, AALOOR, P.O
PATTITHARA, THRITHALA, PALAKKAD 679 534

¶29

BY ADVS.
M.R.SABU
SREEDHAR RAVINDRAN

¶30

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 20.05.2022, ALONG WITH WP(C)Nos.9044/2022 AND 25279/2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶31

¶32

WP(C) NO. 9044 OF 2022 & Conn.cases

¶33

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶34

PRESENT

¶35

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶36

FRIDAY, THE 20TH DAY OF MAY 2022 / 30TH VAISAKHA, 1944
WP(C) NO. 25279 OF 2021

¶37

PETITIONERS:

¶38

1K.V.SYED MOHAMMED
KALLIVALAPPIL, THRITHALA, PALAKKAD-679 634
(POWER OF ATTORNEY HOLDER M.T.UMMER),
RESIDING AT MOORKKATHAZHATHU VEEDU,
AALOOR ,P.O. PATTITHARA,
THRITHALA, PALAKKAD-679 534

¶39

2 SHARAFUDHEEN,

¶40

S/O. LATE K.V.MUHAMMED,
KALLIVALAPPIL HOUSE, THRITHALA-679 534

¶41

3M.T.UMMER,
MOORKKATHAZHATHU VEEDU, AALOOR ,
P.O. PATTITHARA, THRITHALA,
PALAKKAD-679 534

¶42

4NASERA.K.V.,
D/O. K.V.SAYED MUHAMMED,
KALLIVALAPPIL HOUSE, THRITHALA-679 534

¶43

5 SYED ASHARAF S/O. S.S.HUSSAIN, NEEDOM, THRITHALA-679 534

¶44

RESPONDENTS:

¶45

1 THE DEPUTY DIRECTOR OF EDUCATION CIVIL STATION, PALAKKAD-678 001

¶46

WP(C) NO. 9044 OF 2022 & Conn.cases

¶47

5

¶48

2 M.SUKUMARAN CHANDRIKA SADAN, MEZHATHOOR, THRITHALA, PALAKKAD-679 634

¶49

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

¶50

4 THE DISTRICT EDUCATIONAL OFFICER, OTTAPPALAM, PALAKKAD-679 001

¶51

5 THRITHALA EDUCATION SOCIETY, THRITHALA, PALAKKAD-679 534, REPRESENTED BY ITS PRESIDENT

¶52

BY ADVS.

¶53

P.C.SASIDHARAN
R.K.MURALEEDHARAN

¶54

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 20.05.2022, ALONG WITH WP(C).9044/2022 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶55

WP(C) NO. 9044 OF 2022 & Conn.cases

¶56

¶57

JUDGMENT

¶58

[ WP(C) Nos.9044/2022, 13578/2022, 25279/2021]

¶59

This order of mine shall dispose of three writ petitions. Two writ petitions are preferred by the same petitioner Sri.K.V.Syed Muhammed through power of attorney holder Sri.M.T.Ummer; W.P.(C).No.9044/2022 (first writ petition) challenging the order dated 03.03.2022 and W.P(C).25279/2011 against the order dated 08.10.2021. W.P(C).No.13578/2022 (third writ petition) is filed by M.Krishnadas, also challenging the order dated 03.03.2022. Both the petitioners are claiming to be the members of the society running a school and are aggrieved of the action of the Government and the management in not appointing the manager. All the three cases have checkered history as they are alleging to be the founder members of Thrithala Education Society having its own approved byelaws. It has been alleged that at the time of registration, it had 9 members but with the passage of time membership decreased due to various reasons including death, incapacity and the members were reduced to three. A decision was taken to increase the membership on the strength of general body

¶60

WP(C) NO. 9044 OF 2022 & Conn.cases

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7

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decision dated 06.04.2007 to nine. It is that decision which was challenged and culminated in to a filing of the writ petition bearing No.22910/2012 by a person who claimed to have been appointed as manager. This Court allowed the writ petition holding that it was not open to the Director General of Education (DPI) to go into the question of the dispute regarding appointment of the manager. Writ Appeal was preferred by Sri.K.V.Syed Muhammed bearing No.741/2013 but during the pendency of the writ appeal, another person was appointed as manager and impleaded as respondent in the writ appeal. This Court vide interim order injuncted him to make any further appointments. The order of approval of the managership, according to the provisions of the Kerala Education Rule was appealable, and the same was challenged in the appeal. In the meantime, this Court disposed of the aforementioned writ appeal by directing the Director General of Education to dispose of the revision petition without being influenced by the judgment of the learned Single Bench which was challenged before the Division Bench. Government rejected the revision petition vide order dated 02.06.2016 which was challenged in this Court vide W.P.

¶63

WP(C) NO. 9044 OF 2022 & Conn.cases

¶64

8

¶65

(C).No.21230/2016. The writ petition was allowed and order was set aside directing the Government to pass fresh orders vide judgment dated 09.11.2016. Writ Appeals were filed but the same were dismissed. In pursuance to the aforementioned judgment dated 09.11.2016 Government reconsidered the issue and vide order dated 30.05.2017 rejected the contentions of then manager and held that one Sri.Ponneri Abdu Rahim was the duly approved Manager and permitted him to continue as manager. However, the Government vide order dated 14.06.2017 by exercising suo motu power of revision, revised the order resulting into preference of W.P.(C).No.20051/2017 and connected cases. This Court vide judgment dated 23.02.2021 directed the Deputy Director to decide the controversy. Deputy Director passed order dated 08.10.2021 by holding that there was no clarity as to the general body electing the members of the Thrithala Education Society and further matter could be only taken by the office after getting a clarity pertaining to the byelaws of the society and on furnishing the approval for the same. Till such time District Educational Officer, Ottappalam, was ordered to continue to hold the post of manager. The

¶66

WP(C) NO. 9044 OF 2022 & Conn.cases

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9

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aforementioned order was assailed in this Court vide W.P. (C).No.24110/2021. This Court disposed of the writ petition directing the Secretary, Department of General Education to take up and consider the revision with notice to the petitioner in the third petition. As regards the claim of the 3^rd respondent in that writ petition, who is a petitioner in first and second writ petitions, review petition was filed and he was also permitted to be heard by the Secretary. Secretary vide order dated 03.03.2022 rejected the revision petition on the ground that as per the provisions of Chapter III Rule 4(3) and (4) of the Kerala Education Rules, order of the Deputy Director of Education was appealable before the Director of General Education and permitted the petitioner in the Revision Petition, Sri.Krishna Das, who is the petitioner in the third writ petition to file the appeal within a period of 15 days. The grievance expressed in the first writ petition is that the Secretary could not have directed the fixing of the time line of 15 days to file the appeal as it is to be filed within a period of 30 days. In other words, it was without jurisdiction and there was no power of condoning the delay whereas in the second writ petition preferred

¶69

WP(C) NO. 9044 OF 2022 & Conn.cases

¶70

10

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by Sri.K.V.Syed Muhammed it has been asserted that the order dated 08.10.2021 of the Deputy Director was not in consonance with the directions given by this Court in W.P.(C).No.20572/2017 decided on 23.02.2021. In the third writ petition Sri.Krishna Das challenged the order dated 03.03.2022 on the ground that once there was a direction by this Court to the Government to decide the revision petition, the Secretary could not have relegated the petitioner to prefer an appeal as per the aforementioned provisions of the Kerala Education Rules before Director of Education as the Government can exercise suo motu power of revision.

¶72

I have heard the learned counsel for the parties and appraised the paper books.

¶73

The dispute is between the two factions, one is headed by Sri.Krishna Das and another Sri.K.V.Syed Muhammed through power of attorney holder Sri.M.T.Ummer and others, regarding the management of Thrithala Education Society running the school. The whole controversy revolves around management of the education and appointment of the manager and thereafter the administrator ie., District Educational Officer, Ottappalam. There

¶74

WP(C) NO. 9044 OF 2022 & Conn.cases

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11

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had been a slew of directions by this Court in the judgment in W.P.(C).No.20572/2017 decided on 23.02.2021 but the same were not taken into consideration by the Deputy Director in the order dated 08.10.2021 and petitioner in third writ petition was directed to avail the remedy of appeal by the Government as per the order dated 03.03.2022. Directions in the judgment in W.P(C).24110/2021 dated 3.11.2021 also were not taken into consideration. It would be expedient to extract the provisions of Rule 4 of Chapter III of Kerala Education Rules. The same reads as under:

¶77

Approval of appointment of Managers - (1) The Educational Officers shall be competent to approve the appointment of Managers by Educational Agencies and to approve changes in the personnel of the Managers.

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(2) If the Educational Agencies have schools in more than one Educational District within a [Revenue District] the appointment of managers and changes in the personnel of the managers may be approved by the [Deputy Director (Education)] having jurisdiction in the [(Revenue District] If the Educational Agencies have schools in more than one [Revenue District] the appointment of managers and changes in the personnel of the Managers may be approved by the Director of Public Instruction]

¶79

WP(C) NO. 9044 OF 2022 & Conn.cases

¶80

¶81

[(2A) The approval of appointment of Managers and Changes in the personnel of the Managers under sub-rules (1), and (2) above shall take effect from the date of actual assumption of charge of the management specified in the order of approval issued by the competent authorities concerned].

¶82

[(3) Any person aggrieved by an order of the Educational Officer under sub-rule (1) or of the Deputy Director (Education)] under sub-rule (2) may within 30 days from the date of receipt of the order prefer an appeal to the Director.

¶83

(4) "Government may, on their own motion or otherwise, revise any order passed by the Director of Public Instruction].

¶84

On perusal of the above regarding the approval of appointment of managers any person aggrieved by the order of Educational Officer under sub-rule (1) or of Deputy Director of Education under sub-rule (2 ) may within a period of 30 days from the date of receipt of the order prefer an appeal to the Director. Even if some party had availed the incorrect remedy of revision petition and resulted in to a direction to the Government to decide, that would not mean that the power of appeal can be subsumed giving a cause to the parties to agitate of not entertaining the appeal on merits by complying with the directions contained in the

¶85

WP(C) NO. 9044 OF 2022 & Conn.cases

¶86

13

¶87

judgment referred to above. Since any of the aggrieved parties had not availed the appropriate remedy it came to the notice of the Secretary relegating to the Director to avail the remedy of appeal. Filing of all these writ petitions prima facie is gross abuse of process of the court as all the points raised herein could have been agitated in the contemplated appeal.

¶88

The contention of petitioner in second writ petition with regard to granting of time of 15 days, is wholly absurd as expression used is 'may' and not 'shall'. The provisions of Limitation Act as per Section 29 has not been excluded, thus the period spent before an incorrect forum can always be condoned by taking the aid of provisions of Section 14 of the Limitation Act. Without going to the provisions of the aforementioned Act, the jurisdiction of this Court of judicial review under Article 226 of the Constitution of India have been invoked calling upon this Court to decide the issue. In my view, such an exercise is wholly aberrative and repugnant. First and second writ petitions (W.P(C).Nos.9044/2022 and 25279/2021) are wholly abuse of the process of the Court and are accordingly dismissed with costs of

¶89

WP(C) NO. 9044 OF 2022 & Conn.cases

¶90

14

¶91

Rs.25,000/- each to be paid to the Kerala High Court Bar Association.

¶92

The third writ petition has been filed primarily on the ground that instead of laying focus on the directions of this Court contained in the two judgments referred above, the Secretary to Government, having the power under the Rules of suo motu/revisional could not have relegated the party to avail the remedy. In my view that writ petition (W.P(C).13578/2022) also is abuse of the process of the Court. The same is also dismissed with cost of Rs.25,000/- to be paid to the Kerala High Court Bar Association.

Sd/-

AMIT RAWAL JUDGE

nak

WP(C) NO. 9044 OF 2022 & Conn.cases

¶98

APPENDIX OF WP(C) 13578/2022

¶99

PETITIONER EXHIBITS

¶100

Exhibit P1A TRUE COPY OF THE CERTIFICATE OF
REGISTRATION DATED 11.03.1953 BY THE
ASSISTANT REGISTRAR, PALAKKAD ALONG WITH
THE RULES AND REGULATIONS APPROVED BY THE
REGIONAL DEPUTY DPI, CALICUT.
Exhibit P1(a)A TRUE COPY OF THE PROPOSED AMENDMENT OF
EXT.P1 AND THE APPROVAL.
Exhibit P2A TRUE COPY OF THE JUDGMENT IN WA NO.
741/2013 DATED 04.07.2014.
Exhibit P3A TRUE COPY OF THE ORDER NO.
EM1/65153/2013/DPI/D.DIS DATED 17.04.2015
ISSUED BY THE 2ND RESPONDENT.

¶101

Exhibit P4A TRUE COPY OF GO(P) NO. 1813/2016/G.EDN
ISSUED BY THE GOVERNMENT DATED
02.06.2016.

¶102

Exhibit P5A TRUE COPY OF THE JUDGMENT IN WA NO.
2449/2016 DATED 17.12.2016.

¶103

Exhibit P6A TRUE COPY OF THE GO(ORD) NO.
1636/2017/G.EDN DATED 30.05.2017 ISSUED
BY THE GOVERNMENT.

¶104

Exhibit P7A TRUE COPY OF GO(ORD) NO.
1878/2017/G.EDN DATED 14.06.2017 ISSUED
BY THE 1ST RESPONDENT.
Exhibit P8A TRUE COPY OF THE JUDGMENT IN WP(C) NO.
16246/2019 AND CONNECTED CASES DATED
23.02.2021.
Exhibit P9A TRUE COPY OF THE ORDER NO.
B.5/25336/2019 DATED 08.10.2021 ISSUED BY

¶105

WP(C) NO. 9044 OF 2022 & Conn.cases

¶106

16

¶107

TE DEO, OTTAPALAM.

¶108

Exhibit P10A TRUE COPY OF THE APPEAL SUBMITTED BY
THE PETITIONER BEFORE THE GOVERNMENT
DATED 21.10.2021.

¶109

Exhibit P11A TRUE COPY OF THE JUDGMENT IN WP(C) NO.
24110/2021 DATED 03.11.2021.
Exhibit P12A TRUE COPY OF THE ORDER IN RP NO. 874 OF
2021 IN WP(C) NO. 24110/2021 DATED
07.12.2021.
Exhibit P13A TRUE COPY OF GO(RT) NO. 1206/2022/GEDN
DATED 03.03.2022 ISSUED BY THE
GOVERNMENT.

¶110

¶111

WP(C) NO. 9044 OF 2022 & Conn.cases

¶112

APPENDIX OF WP(C) 25279/2021

¶113

PETITIONER EXHIBITS

¶114

Exhibit P1TRUE COPY OF THE BYELAW OF THE THRITHALA
EDUCATION SOCIETY
Exhibit P2TRUE COPY OF THE DECISION OF THE
EXECUTIVE COMMITTEE TAKEN ON 06.04.2007
Exhibit P3TRUE COPY OF THE ORDER OF THE DIRECTOR
GENERAL OF EDUCATION (DPI
NO.D.DIS/EMI/59130/2008/DPI DATED
13.09.2012
Exhibit P4TRUE COPY OF THE ORDER IN IA 651/13 IN WA
741/13 DATED 21.8.13
Exhibit P5TRUE COPY OF THE JUDGMENT IN WA NO.741/13
DATED 4.7.14
Exhibit P6TRUE COPY OF THE ORDER IN CORRECTION
PETITION IA NO.653.14 IN WA NO.741/13
DATED 17.07.2014
Exhibit P7TRUE COPY OF THE ORDER OF THE GOVERNMENT
NO.1813/2016/GEN EDN DATED 02.06.2016
Exhibit P8TRUE COPY OF THE COMMON JUDGMENT IN WPC
NO.21230/2016 DATED 09.11.2016
Exhibit P9TRUE COPY OF THE ORDER OF THE GOVERNMENT
NO.1636/29017/GEN. EDN DEPT DATED
30.05.2017
Exhibit P10TRUE COPY OF THE COMMUNICATION OF
SRI.PONNERI ABDURAHIMAN TO THE DEO
OTTAPALAM, DATED 31.05.2017
Exhibit P11TRUE COPY OF THE ORDER OF THE GOVERNMENT

¶115

WP(C) NO. 9044 OF 2022 & Conn.cases

¶116

18

¶117

G.O(P) NO.1878/2017 GEN EDN DATED
14.06.2017

¶118

Exhibit P12TRUE COPY OF THE JUDGMENT IN WPC
NO.20572/2017 DATED 23.02.2021

¶119

Exhibit P13TRUE COPY OF THE NOTICE ISSUED BY THE 1ST
RESPONDENT TO ALL PARTIES
BO.B5/25336/2019 DATED 29.06.2021

¶120

Exhibit P14TRUE COPY OF THE ORDER OF THE 1ST
RESPONDENT NO.B5/25336/2019 DATED
08.10.2021

¶121

¶122

WP(C) NO. 9044 OF 2022 & Conn.cases

¶123

APPENDIX OF WP(C) 9044/2022

¶124

PETITIONER EXHIBITS

¶125

Exhibit P1TRUE COPY OF THE BYELAW OF THE THRITHALA
EDUCATION SOCIETY
Exhibit P2TRUE COPY OF THE DECISION OF THE EXECUTIVE
COMMITTEE TAKEN ON 06-04-2007 ALONG WITH
TRANSLATION
Exhibit P3TRUE COPY OF THE ORDER OF THE DIRECTOR
GENERAL OF EDUCATION (DPI NO. D
DIS/EMI/59130/2008/DPI DATED 13-09-2012
Exhibit P4TRUE COPY OF THE ORDER IN I.A 651/13 IN W.A
741/13 DATED 21-08-2013
Exhibit P5TRUE COPY OF THE JUDGMENT IN W.A NO. 741/13
DATED 4-7-2014
Exhibit P6TRUE COPY OF THE COMMON JUDGMENT IN W.P(C)
NO. 21230/2016 DATED 09-11-2016
Exhibit P7TRUE COPY OF THE JUDGMENT IN W.P(C)NO.
20572/2017 DATED 23-02-2021
Exhibit P8TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT
DATED 8-10-2021 NO. B.5/25336/2019
Exhibit P9TRUE COPY OF THE JUDGMENT IN W.P(C) NO.
24110/2021 DATED 03-11-2021

¶126

Exhibit P10TRUE COPY OF THE ORDER IN R.P NO. 874/2021
DATED 7-12-2021
Exhibit P11TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT
DATED 03-03-2022 NO. G.O (RT0 NO.
1206/2022/GEDN ALONG WITH ENGLISH TRANSLATION

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

What is this about?

What did the court decide?

What the court decided

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