IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 18TH MARCH 2009 / 27TH PHALGUNA 1930 WP(C).No. 4225 of 2009(C) ------------------------- PETITIONER ------------- M.I.JOSE, MUKKADAKKAL HOUSE KOLENCHERRY, ERNAKULAM DIST. BY ADV. SRI.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE SRI.TONY GEORGE KANNANTHANAM RESPONDENT(S): --------------- 1. THE STATE OF KERALA REPRESENTED BY SECRETARY GENERAL EDUCATIONAL DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE DISTRICT EDUCATIONAL OFFICER ERNAKULAM. 3. MR. M.I.ANDREWS MUKKADAKKAL HOUSE,IRUMPANAM PO,ERNAKULAM DISTRICT. ADV. SRI.ABRAHAM JOHN FOR R3 BY GOVERNMENT PLEADER SRI.T.T. MUHAMOOD FOR R1,R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 4225 of 2009(C) APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: COPY OF ORDER DTD.13.3.2000 OF THE SECOND RESPONDENT. EXHIBIT P2: COPY OF ORDER DATED 2.8.2001 FROM THE DPI, TRIVANDRUM. EXHIBIT P3: COPY OF ORDER DATED 15.7.2002 OF THE GENERAL EDUCATION (F) DEPARTMENT. EXHIBIT P4: COPY OF ORDER DTD. 6.2.2009 OF THE 2ND RESPONDENT. EXHIBIT P5: COPY OF REPORT DATED 7.2.2009 TO THE PETITIONER. RESPONDENT'S EXHIBITS EXHIBIT R3(1): TRUE COPY OF THE RECORDED UNDERSTANDING MADE ON 7.1.2000. EXHIBIT R3(2): A TRUE PHOTOSTAT COPY OF THE TRUST DEED DATED 20.4.2001. EXHIBIT R3(3): A TRUE COPY OF THE JUDGMENT PASSED BY THE SUB COURT, ERNAKULAM IN O.S. NO.333/'01 DTD.29.11.2008. //TRUE COPY// PA TO JUDGE. P.N.RAVINDRAN, J. ----------------------------- W.P(C) No. 4225 of 2009-C ------------------------------ Dated this the 18th day of March, 2009. J U D G M E N T Heard Sri.Kurian George Kannanthanam, the learned Senior Advocate appearing for the petitioner, Sri.T.T.Muhamood the learned Government Pleader appearing for respondents 1 and 2 and Sri.Abraham John, the learned counsel appearing for the third respondent. 2. The petitioner and the third respondent are the sons of late Sri.M.O.Ittoop who passed away on 10.1.2002. Late M.O.Ittoop had established a high school in the name and style, High School Irimpanam in the year 1940. Later it was upgraded into a Vocational Higher Secondary School. Late M.O.Ittoop was the educational agency and the Manager of the school. According to the petitioner, who is the eldest among the three sons of late M.O.Ittoop, due to old age, late M.O.Ittoop had entrusted management of the school to him. The petitioner states that a joint declaration signed by him and his father late M.O.Ittoop was submitted before the District Educational Officer requesting for change of management of the school and that by Ext.P1 order W.P(C) No. 4225 of 2009-C 2 dated 13.3.2000 the said request was granted. 3. It appears that late M.O.Ittoop has filed a revision petition dated 1.8.2000 before the Director of Public Instruction challenging Ext.P1 order contending that the application seeking change of management is a concocted document. He had referred to the fact that a family settlement had been arrived at on 7.1.2000 whereby it was decided to constitute a trust to administer and manage the school. The revision filed before the Director of Public Instruction was heard on 21.3.2001, thereafter on 24.4.2001 and later on 1.8.2001. It appears that on 20.4.2001, late M.O.Ittoop executed a registered deed of trust (Ext.R3(2) constituting his three sons as trustees. As per the terms of the said deed the trustees should administer and manage the school on rotation, as stipulated in para 5 thereof. In the hearing held by the Director of Public Instruction on 1.8.2001 a copy of the trust deed was produced. The Director of Public Instruction evidently without noticing the requirement of Rule 5A of Chapter III of the KER acted on the basis of Clause 18 of the trust deed and proceeded to hold that as the petitioner has not signed the trust deed and has not accepted the trust deed, he has no right to manage the school. The Director of W.P(C) No. 4225 of 2009-C 3 Public Instruction also took note of the fact that though the petitioner had instituted a suit O.S.No.333 of 2001 to cancel the trust deed, no interim order had been passed therein restraining the other trustees from acting as the trustees. The Director of Public Instruction accordingly passed Ext.P2 order cancelling Ext.P1 and approved the third respondent as the Manager in accordance with the terms and stipulations in the trust deed. 4. Aggrieved by Ext.P2, the petitioner filed a revision petition before the State Government. The Government heard the petitioner and the third respondent and by Ext.P3 order passed on 15.7.2002 set aside Ext.P2 order and directed that the petitioner shall be allowed to continue as Manager subject to the final decision of the civil court in O.S.No.333 of 2001. Thus the petitioner is continuing as Manager of the school. O.S.No.333 of 2001 was finally heard on 18.11.2008. By judgment delivered on 29.11.2008, the Court of the Sub Judge, Ernakulam held that the trust deed is not vitiated on any ground. The suit was accordingly dismissed. It appears that the third respondent had submitted an application before the District Educational Officer, Ernakulam pointing out the said fact and sought orders approving him as the Manager of the W.P(C) No. 4225 of 2009-C 4 school. The District Educational Officer thereupon passed Ext.P4 order dated 6.2.2009 approving the third respondent as the Manager of the school for a period of two years from 29.11.2008 to 28.11.2010. Ext.P4 is under challenge in this writ petition. 5. Sri.Kurian George Kannamthanam, the learned counsel for the petitioner contends that Ext.P4 is liable to be set aside on the ground that it was passed without notice to him. The learned counsel also contends that as prior permission of the Director of Public Instruction had not been obtained as required under Rule 5A Chapter III of the KER, even though the Civil Court has upheld the trust deed, it cannot be pressed into service to claim the right to manage the school. The learned Senior Advocate, relying on the Division Bench decision of this Court in Somanathapillai V. State of Kerala (2007(1) KLT 127) contended that in any view of the case on the death of M.O.Ittoop on 10.1.2002, the educational agency acquired the status of a corporate educational agency and as no rule has been framed and the constitution of the agency approved, the petitioner was entitled to continue as Manager till the constitution of the educational agency is approved by the Director. The learned counsel also contended that the petitioner has filed A.S.No.20 of W.P(C) No. 4225 of 2009-C 5 2009, in the Court of the District Judge, Ernakulam, challenging the decree dismissing the suit and that the said appeal is pending. The learned Senior Advocate also contended that even if the rights of parties are governed by the trust deed, the petitioner can act as the Managing Trustee for the first year and thereafter the trustees have to hold office for the period specified in para 5 of the trust deed. 6. The learned counsel for the third respondent contend that in view of the finding of the Civil Court it was not necessary to issue notice to the petitioner for the reason that the petitioner can have no objection to the District Educational Officer approving the third respondent as the Manager. The learned counsel for the third respondent also contended that Ext.P4 is an appealable order and that the petitioner has without resorting to the effective alternate remedy rushed this Court challenging Ext.P4. The learned counsel for the third respondent also contended that even if the petitioner had been heard, the District Educational Officer could not have come to another conclusion and therefore the mere fact that the petitioner was not heard, cannot result in invalidation of Ext.P4. The learned counsel for the third respondent also relied on the decision of the Apex Court in M.C.Mehta V. Union of India (1999(6) W.P(C) No. 4225 of 2009-C 6 SCC 237) in support of the said contention. 7. I have considered the submissions made at the Bar by the learned counsel on both sides. Ext.P3 order was passed under sub rule (1) of Rule 4 of Chapter III of the KER. Sub rule (3) of rule 4 of Chapter III of the KER stipulates that any person aggrieved by the order passed by the Educational Officer under sub rule (1) of rule 4 may file appeal before the Director of Public Instruction within thirty days from the date of receipt of the order. The petitioner thus has an effective alternative remedy. The pleadings and the materials before me disclose that neither the District Educational Officer when he passed Ext.P1 or Ext.P4 nor the Director of Public Instruction when he passed Ext.P2 or the Government when it passed Ext.P3 had adverted to the fact that the previous permission of the Director had not been obtained before the trust deed was executed. By the trust deed there was a transfer not only of the right of management but also the right over the properties of the school. Further, in view of the decision of this Court in Somanathapillai V. State of Kerala (2007(1) KLT 127 on the death of Sri.M.O.Ittoop, his legal heirs acquired the status of a corporate educational agency. The District Educational Officer had not when W.P(C) No. 4225 of 2009-C 7 he passed Ext.P4 taken note the fact that there are no bye-laws governing the corporate educational agency. I am of the opinion that in view of these circumstances also the petitioner should move the Director of Public Instruction challenging Ext.P4. It is brought to my notice that the third respondent has assumed charge on the strength of Ext.P4 order and that petitioner was ousted. In the result, I dispose of this writ petition with the following directions: The petitioner shall within two weeks from the date of receipt of a certified copy of this judgment file an appeal before the Director of Public Instruction challenging Ext.P4. The Director of Public Instruction shall upon such appeal being filed, entertain it as one filed within the period of limitation, issue notice to the third respondent and pass orders thereon after affording the petitioner and the third respondent a reasonable opportunity of being heard. Final orders in the matter shall be passed within three months from the date on which the petitioner files the appeal. The Director shall after orders are passed in the matter, communicate copies thereof to the petitioner and the third respondent. Till then, the third respondent shall continue to function as Manager subject to the condition that he shall not appoint fresh hands except Rule 51A W.P(C) No. 4225 of 2009-C 8 claimants. Thereafter, the rights of parties will be governed by the orders passed by the Director of Public Instruction. The third respondent shall within two weeks from today handover the books, articles and documents if any belonging to the petitioner on the petitioner making a request in that regard. Sd/- P.N.RAVINDRAN JUDGE //True Copy// PA to Judge ab