IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 14TH JUNE 2011 / 24TH JYAISHTA 1933 WP(C).No. 27669 of 2010(G) ----------------------------------------- PETITIONER(S): ------------------------ USMAN KURIKKAL O.V., MANAGER, THACHINGANADAM HIGH SCHOOL, THACHINGANADAM P.O., MALAPPURAM DISTRICT, RESIDING AT KURIKKAL HOUSE, V.I.P.ROAD, MANJERI COLLEGE, MALAPPURAM-676122. BY SRI.KRB.KAIMAL, SENIOR ADVOCATE, BY ADV. SRI. B.UNNIKRISHNA KAIMAL, SRI. V.MADHUSUDHANAN, SRI. T. ISSAC. RESPONDENT(S): ----------------------------- 1. STATE OF KERALA,REPRERSENTED BY THE SECRETARY TO THE GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEXE, THIRUVANANTHAPURAM-695 001. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, P.O.JAGATHY, THIRUVANANTHAPURAM, PIN-695 014. 3. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM P.O. MALAPPURAM-676 505. 4. THE DISTRICT EDUCATIONAL OFFICER, WANDOOR, WANDOOR P.O., MALAPPURAM DISTRICT, PIN-679 328. 5. SHRI.P.ACHUTHAN NAIR, PARAPPAN HOUSE, THACHINGANADAM P.O., MALAPPURAM DISTRICT-679 325. R1 TO R4 BY GOVERNMENT PLEADER SMT.NISHA BOSE R5 BY ADV. SRI.P.K.SURESH KUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/06/2011, THE COURT ON 14/06/2011 DELIVERED THE FOLLOWING: Kss K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 27669 OF 2010 G ------------------------------------------------------ Dated this the 14th day of June, 2011 JUDGMENT The petitioner, O.V.Usman Kurikkal, challenges in this Writ Petition Ext.P1 order dated 20.8.2010, passed by the Government, and Ext.P3 consequential proceedings of the District Educational Officer, Wandoor. 2. Thachinganadam High School (hereinafter referred to as 'the High School') was established by Thachinganadam School Committee (hereinafter referred to as 'the Committee'). The property in which the High School is housed, having an extent of 3.52 acres, was purchased on behalf of the Committee as per registered sale deed dated 31.7.1975 (Ext.P4). The Committee consisting of eight members was approved by the Education Department as a Corporate Educational Agency. The fifth respondent, P.Achuthan Nair, is a founder member of the Committee. The Committee framed Ext.P5 bye-laws dated 23.6.1978, for management of the High School. The bye-laws were approved by the Deputy Director of Education. W.P.(C) NO.27669 OF 2010 :: 2 :: 3. On account of the disputes among the members of the Committee and the consequent deadlock in the management of the High School, the Government, as per Ext.P6 notification dated 21.5.2005, took over the management of the High School, in exercise of the powers conferred by sub-section (2) of Section 14 of the Kerala Education Act. Ext.P6 order was challenged by the fifth respondent and Devaki Amma, another member of the Committee, in W.P.(C) No.16961 of 2005, which was allowed as per Ext.P7 judgment dated 1.7.2005. The notification dated 21.5.2005 was quashed and the Government was directed to take fresh decision on the question of taking over of the management of the High School, after issuing notice to the writ petitioners therein and other members of the Committee as well as the legal heirs of the deceased members. Ext.P7(a) show cause notice was issued by the Government to the members of the Committee in compliance with Ext.P7 judgment. It is stated that the members of the Committee arrived at a settlement, elected new office bearers and approached the Government. A meeting of the members was convened by the District Educational Officer, in which, all the members of the Board of Directors of the Committee, except Achuthan Nair, attended. The Government passed Ext.P11 order dated 6.5.2006 returning the W.P.(C) NO.27669 OF 2010 :: 3 :: management of the High School with the permission to approve the managership of P.Devaki Amma upto 17.2.2006. It is stated by the learned Senior Counsel for the petitioner that for the subsequent period upto 31.3.2007, one Aboobacker Haji was elected as the Manager. 4. Ext.P5 bye-laws of the Committee shows that the property was purchased for the High School Director Board in the name of Achuthan Nair and that the property and the movables and improvements therein belong to the Director Board. Ext.P5 bye- laws provides that a member of the Committee, though entitled to transfer his membership to another member, is not entitled to transfer it to a stranger. Ext.P5 bye-laws were amended as per Ext.P8 'karar', in which, six members signed. The bye-laws were amended with effect from 23.10.2005, by which, it was provided that any Director would be entitled to transfer his membership even to strangers. It is stated that the 'karar' was executed based on the decision of the Committee in the meeting held on 23.10.2005. The amendment to the bye-laws was approved by the Deputy Director of Education, Malappuram. W.P.(C) NO.27669 OF 2010 :: 4 :: 5. It is stated that in the meeting of the Committee held on 30.4.2006, it was resolved, as evidenced by Ext.P9 minutes, to transfer the management of the High School and its properties to the petitioner. Six members participated in the meeting. Another member, K.M.Neelakantan Namboothiri ratified the decision and transferred his rights to the petitioner. Achuthan Nair did not attend the meeting. Accordingly, Ext.P10 sale deed was executed on 3.5.2006. It is stated that on 30.4.2006 itself, the Committee resolved to transfer the management of the High School to the petitioner and, therefore, he submitted an application dated 1.5.2006 to the District Educational Officer to approve the change of management in favour of the petitioner. It is stated that Aboobacker Haji, the then Manager, also submitted an application to the District Educational Officer for approving the change of management. The District Educational Officer issued Ext.P2 order 12.5.2006 approving the change of management in favour of the petitioner. 6. Achuthan Nair (fifth respondent) submitted Ext.P12 representation dated 17.8.2006 to the Government to review/revoke Ext.P11 order dated 6.5.2006. In Ext.P12, Achuthan Nair stated that the alienation made in favour of Usman Kurikkal was illegal, that W.P.(C) NO.27669 OF 2010 :: 5 :: Achuthan Nair had filed O.S.No.84 of 2006 before the Munsiff's Court, Perinthalmanna for a declaration that he continues to be a member of the Director Board and that the assignment in favour of Usman Kurikkal is not valid and binding on him. It was also pointed out in Ext.P12 that no change of management involving change of ownership was effected by the Deputy Director, to be approved as provided under Rule 5A of Chapter III of the Kerala Education Rules. 7. Ext.P12 Review Petition filed by Achuthan Nair was dismissed by the Government as per Ext.P18 order dated 10.8.2007. Ext.P18 order was passed after hearing all the parties concerned. It was stated in Ext.P18 order that the only question to be considered in the Review Petition was whether there was any error apparent on the face of the record. It was also held that a subsequent event will not constitute an error apparent on the face of the order passed by the Government. It was noticed in Ext.P18 that the Government passed Ext.P11 order on the basis of consensus of parties and the petitioner was a party to that consensus. In paragraph 28 of Ext.P18 order, it was held thus: W.P.(C) NO.27669 OF 2010 :: 6 :: “In the above circumstances, Government are pleased to order that the sale of right of the Director Board of the High School to O.V.Usman Kurikkal on 3.5.2006 is in order and also that the right of the petitioner over the property of the High School has to be decided by a civil court.” 8. Thereafter, Achuthan Nair filed Ext.P19 “Mercy Revision Petition” before the Honourable Minister for Education. In Ext.P19, the prayers were the following: “a) The operation of the G.O.(Rt) No.3746/2007/G.Edn. dated 10.8.2007 may kindly be stayed till the disposal of the Mercy revision petition or else all the action of Shri.Usman Kurikkal O.V. would have to be treated as legal. Even his attempt to boost up attendance adopting fraud would cause huge financial burden to govt. b) To appoint an Officer of the Educational Department as Manager of the school provisionally till the dispute on the illegal transfer of management is settled by the final authority. c) This Mercy petition may be heard taking evidence afresh on the authority of each which led to the approval of Shri.Usman Kurikkal O.V. including the W.P.(C) NO.27669 OF 2010 :: 7 :: omission to observe the provision in S 6 of KE Act 1958 and the rules in 4(2) 5A chapter III of KER. d) Any other relief deemed fit if sought at the time of hearing.” 9. A reading of Ext.P19 would indicate that essentially the petition was filed to review Ext.P18 order dated 10.8.2007, which was passed on Ext.P12 Review Petition against Ext.P11 order. Though the word “Review” is not mentioned in Ext.P19 and it is stated that it is a 'Mercy Revision Petition', in order to grant the prayers made in Ext.P19, it was necessary to review Ext.P18 order. 10. It would appear that after Ext.P19 Mercy Revision Petition was filed, Sri.Aboobacker Haji filed a petition before the Director, Vigilance and Anti Corruption, raising certain allegations against the petitioner and the management of the High School. It would also appear that an enquiry was conducted by the Director of Public Instruction and a report (Ext.P20) was submitted to the Government. 11. Usman Kurikkal filed W.P.(C) No.16525 of 2008 challenging Ext.P19 proceedings. Achuthan Nair filed W.P.(C) W.P.(C) NO.27669 OF 2010 :: 8 :: No.28617 of 2008. Those Writ Petitions were disposed of as per Ext.P21 judgment dated 4.3.2010 directing the Government to consider the Mercy Revision Petition filed by Achuthan Nair with notice to the petitioner and other Directors of the Corporate Educational Agency. The Government was directed to consider the maintainability of the Mercy Revision Petition as a preliminary issue. 12. Thereafter, the first respondent passed Ext.P1 order dated 20.8.2010 holding that the Mercy Revision Petition is maintainable. By the same order, the first respondent cancelled Ext.P2 proceedings of the District Educational Officer dated 12.5.2006 approving Usman Kurikkal as the Manager. On cancellation of Ext.P2 order, it was held that there arose a vacuum in the management of the High School, that there are two rival claimants, namely, Usman Kurikkal and Achuthan Nair and that the management of the High School cannot be entrusted to any of them till the civil court decides the disputes between the parties. Ext.P1 order was concluded by saying thus: “In this special situation in order to avoid the vacuum of management the school is taken over by Government and the District Educational Officer, W.P.(C) NO.27669 OF 2010 :: 9 :: Wandoor will act as the temporary manager of the school.” Consequent to Ext.P1, the District Educational Officer took charge as the Manager of the High School on 31.8.2010, as evidenced by Ext.P3. As stated earlier, Exts.P1 and P3 are under challenge in this Writ Petition. 13. Sri.K.R.B.Kaimal, the learned senior counsel appearing for the petitioner, submitted the following: The Kerala Education Act and the Kerala Education Rules do not confer any power on the Government to take over any aided school. Section 14 of the Act only provides for taking over management of a school. Under Section 14(1) of the Kerala Education Act, the management of aided schools shall be taken over only after serving show cause notice and affording a reasonable opportunity to the Manager and the Educational Agency. Taking over management of a school under Section 14(1) should be on the grounds specified in the Section, namely, (1) The Manager has neglected to perform any of the duties imposed by or under the Act or the Rules; and (2) In the public interest, it is necessary to take over the management of the school. W.P.(C) NO.27669 OF 2010 :: 10 :: It is submitted that in the case on hand, no show cause notice was issued as provided under Section 14(1) of the Kerala Education Act and, therefore, Ext.P1 order is illegal, arbitrary or unsustainable. The grounds for taking over the management are also not made out in the case. No emergency is made out or indicated and therefore, sub-section (2) of Section 14 of the Act would not apply. The procedure provided in Chapter XX of the Kerala Education Rules was not followed before taking over management. A notice shall be issued to the Manager in form 18, as provided in Rule 1 of Chapter XX of the Kerala Education Rules. Ext.P6 order dated 21.5.2005 taking over management of the school was quashed as per Ext.P7 judgment in W.P.(C) No.16961 of 2005. Thereafter, the management was reverted to the committee on the basis of a consensus among the parties. Therefore, Ext.P7(a) notice cannot be treated as a notice preceding the taking over of management as per Ext.P1 order. The petitioner became the sole proprietor of the High School. The resolutions of the Board are binding on Achuthan Nair. Seven out of the eight members agreed to the resolutions and later the Board was dissolved. Therefore, Achuthan Nair does not have any right. Ext.P2 order was cancelled without notice to the petitioner and to that extent, Ext.P1 is illegal. The fifth respondent W.P.(C) NO.27669 OF 2010 :: 11 :: (Achuthan Nair) having filed a civil suit, the disputed questions are to be decided in the civil suit. The Government have no jurisdiction to entertain a Mercy Revision Petition addressed to the Honourable Minister. A petition for review of an order passed on review cannot be entertained. There is no case for the Government that the High School was not being properly managed. According to the petitioner, the School in question is one of the best schools in Malappuram District. After the petitioner assumed management, there was considerable improvement in the management of the School. 93% of the students passed in the last SSLC Examination. In the year 2006, the total number of students was about 600 and at present, 1400 students are studying in the School. 14. Sri.P.K.Suresh Kumar, learned counsel appearing for the fifth respondent, as well as the learned Government Pleader supported Ext.P1 order. Sri.P.K.Suresh Kumar submitted the following: Achuthan Nair is one among the eight persons who founded the School. The property in question is the common property of all the eight members. The Bylaws are silent regarding disposal of the property. The Committee is not a legal entity or an incorporated body. It has no juristic status. Any co-owner who has W.P.(C) NO.27669 OF 2010 :: 12 :: not transferred his rights would not be affected by the transfer made by others. Since the transfer is not a complete transfer, it cannot be said that the transfer was of a running school. The transfer is hit by Section 6 of the Kerala Education Act. Ext.P10 sale deed is void for all practical purposes. At the time when the District Educational Officer passed Ext.P2 order dated 12.5.2006, the sale as per Ext.P10 had taken place on 3.5.2006. Therefore, the District Educational Officer had no power to approve the petitioner as the Manager of the School since the transfer involved transfer of ownership as well. If so, only the Director of Public Instruction was having jurisdiction to approve the Manager. Ext.P2 order passed by the District Educational Officer is illegal and void. That order was obtained by fraudulent means. Ext.P9 resolution of the Board of Directors shows that the transfer of property took place on 30.4.2006 itself. On the next day, Usman Kurikkal applied for transfer of management. Ext.P2 order was passed by the District Educational Officer as if only a transfer of management took place without change of ownership. Under Rule 5A of Chapter III of the Kerala Education Rules, an aggrieved person can file an appeal to the Government. Ext.P12 was filed by the petitioner before the Government. Section 14(4) enables the Government to pass further W.P.(C) NO.27669 OF 2010 :: 13 :: orders and, therefore, Ext.P1 is just and legal. The power under Section 35 of the Act also can be exercised by the Government. Since the District Educational Officer usurped the powers of the Director of Public Instruction and passed Ext.P2 order, certainly the Government can intervene and set things right. The petitioner had sufficient notice that the order of the District Educational Officer was under challenge before the Government. The nomenclature of Ext.P19 petition as a “Mercy Revision Petition” may not as such be relevant and the substance and contents of the petition are to be looked into. Sri.P.K.Suresh Kumar added that even if the transfer of the School is taken as valid, it shows that at present there are two members who constitute the Educational Agency. Those members are the petitioner and the fifth respondent. Since there is dispute between them, the Government was justified in taking over the management. 15. Sri.K.R.B.Kaimal, in answer to the contentions raised by Sri.P.K.Suresh Kumar, submitted that an order passed by the District Educational Officer under Rule 4 of Chapter III of the Kerala Education Rules can be challenged in appeal before the Director of Public Instruction, as provided in sub-rule (3) of Rule 4. Achuthan W.P.(C) NO.27669 OF 2010 :: 14 :: Nair did not file any appeal against Ext.P2 order. The suo motu power of revision of the Government as provided in sub-rule 4 of Rule 4 is only against the order passed by the Director of Public Instruction. He also submitted that the appellate power of the Government under sub-rule (2) of Rule 5A cannot be invoked in the present case as no order was passed by the Director of Public Instruction under Rule 5A of Chapter III of the Kerala Education Rules. 16. Sub-sections (1) to (4) of Section 14 of the Kerala Education Act are relevant to deal with the contentions put forward by either side. They read as follows: “14. Taking over management of schools:-- (1) Whenever it appears to the Government that the manager of any aided school has neglected to perform any of the duties imposed by or under this Act or the rules made thereunder, and that in the public interest it is necessary to take over the management of the school for a period not exceeding five years, they may, after giving the manager and the educational agency, if any, a reasonable opportunity for showing cause against the proposed action and after considering the cause, if any, W.P.(C) NO.27669 OF 2010 :: 15 :: shown, do so, if satisfied that such taking over for the period is necessary in the public interest. (2) In cases of emergency, where the Government are satisfied that such a course is necessary in the interests of the pupils of the school, they may, without any notice under sub-section (1) to the manager or the educational agency, take over the management of any school after the publication of a notification to that effect in the Gazette. (3) Where any School has been taken over under sub-section (2) the educational agency or the manager of the school within three months of the publication of the notification under the said sub-section, may apply to the Government for the restoration of the school showing the cause therefor, and where the Government are satisfied of the cause so shown, they shall restore the school. (4) The Government may also make such further orders as may appear to them to be necessary or expedient in connection with the taking over of the management of any aided school under this section.” 17. In order to attract Section 14(1) of the Act, the following conditions must be satisfied. (1) It must appear to the Government W.P.(C) NO.27669 OF 2010 :: 16 :: that the manager of the school has neglected to perform any of the duties imposed by or under the Act or the Rules made thereunder; and (2) In the public interest it is necessary to take over the management of the school; (3) A reasonable opportunity for showing cause against the proposed action shall be given to the manager and the educational agency; (4) After considering the cause, if any, shown, the Government must be satisfied that such a taking over is necessary in the public interest. Conditions (1) and (2) are not alternative, but cumulative. Absence of any one of the above conditions would vitiate the order passed under Section 14(1) of the Act. The educational agency has the right to run the school. The manager has specified powers under the Act and Rules. The right to run an aided school can be interfered with only if the conditions under Section 14(1) of the Act are satisfied. Such a right which the educational agency and the manager possesses, cannot be deprived by exercising the power under Section 14(1) or 14(2) of the Act on the mere whims and fancies of the Government. Taking over the management of an aided school is aimed at the proper running of the school in accordance with the Act and Rules. Public interest and welfare of the students and teachers are also important in exercising the jurisdiction under sub-section (1) of Section 14 of the Act. In the W.P.(C) NO.27669 OF 2010 :: 17 :: present case, Ext.P1 order does not indicate that the conditions under Section 14(1) are attracted. Only because there are two rival claimants for managership, the power under Section 14(1) of the Act cannot be exercised. The dispute between two persons, or among some persons who constitute the educational agency, for managership, by itself does not constitute a complete and exhaustive reason for taking over the management of the school, in the absence of the existence of the ingredients under Section 14(1) of the Act. Section 14(1) is not intended to deal with the disputes between two or more parties for managership, but it is intended for a larger purpose and to achieve a wider object. 18. In Subramanian v. State of Kerala and others (1986 KLT 359), Justice M.P.Menon, spoke on the scope and ambit of Section 14(1) of the Kerala Education Act. It was held thus: “6. ... It is clear that for the above provisions to operate, the following conditions, among others, should be satisfied:- (i) there should be something to suggest that the manager has neglected to perform any of his duties under the Act or the Rules; W.P.(C) NO.27669 OF 2010 :: 18 :: (ii) he should be given a reasonable opportunity to show cause against the proposed take-over; (iii) the cause, when shown, should be considered by the Government before the final decision is taken. Now, what is the duty (or what are the duties) under the Act or Rules which the manager in this case has neglected to perform? Ext.P7 does not refer specifically to any single duty of that kind: it simply accuses the manager of having not properly conducted the school. When? In what manner or in what respect? It seems to me that some kind of specification of the duties neglected to be performed by a manager, apart from a vague accusation of not properly conducting the school, is a minimum requirement of a show cause notice under S.14(1). Without such a specification, the manager will not get a reasonable opportunity of showing cause against the proposal. On this ground alone, I should say that Ext.P7 cannot be treated as a valid notice under S.14(1).” The above view was accepted and followed by the Division Bench in Parent Teacher Association v. State of Kerala (2000 (1) KLT 804). 19. Sri.P.K.Suresh Kumar, learned counsel appearing for the fifth respondent, justified Ext.P1 under sub-section (4) of Section 14 W.P.(C) NO.27669 OF 2010 :: 19 :: of the Kerala Education Act. Sub-section (3) of Section 14 enables the educational agency or the manager of the school, the management of which was taken over under sub-section (2), to apply to the Government for restoration of the school after showing cause therefor. Sub-section (4) of Section 14 empowers the Government to make such further orders as may appear to them to be necessary or expedient in connection with the taking over of the management of any aided school under Section 14. It is true that sub-section (4) enables the Government to pass an order for restoration of the management of the school. The Government has power to pass any order in connection with the taking over of the management of the school including