IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 WP(C).No. 768 of 2009(N) ----------------------------------- PETITIONER: ------------------- A.VASUMATHY, JOINT MANAGER, CHEMPAKASSERY SCHOOLS, CHEMPAKASSERY HOUSE, BHOOTHAKULAM P.O, PARAVUR, KOLLAM, PIN- 691 302. BY ADVS. MR.S.P.ARAVINDAKSHAN PILLAY, SMT.N.SANTHA, MR.K.A.BALAN, MR.PETER JOSE CHRISTO, MR.S.A.ANAND, MR.R.VARUN. RESPONDENTS: ------------------------ 1. DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM, PIN -695 010. 2. DEPUTY DIRECTOR (EDUCATION), KOLLAM, PIN -691 001. 3. DISTRICT EDUCATIONAL OFFICER, KOLLAM, PIN -691 001. 4. CORPORATE EDUCATIONAL AGENCY OF CHEMPAKASSERY SCHOOLS, BHOOTHAKULAM P.O, PIN- 691 302, REPRESENTED BY SRI.A.VENUGOPAL, JOINT MANAGER. 5. A.UDAYAKUMARI, CLERK CHEMPAKASSERY HIGHER SECONDARY SCHOOL BHOOTHAKULAM PO, PIN- 691 302. R1 TO R3 BY GOVT. PLEADER SMT. T.B. REMANI, R5 BY ADV. MR. P.GOPALAKRISHNAN NAIR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/03/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.768/2009-N: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE BYELAWS APPROVED BY ENDT. ON B3.7605/2005 DTD. 08/07/2005 OF THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM. EXT.P.2: COPY OF THE ORDER NO. B4/12665/05/K. DIS. DTD. 29/08/2006 OF THE DISTRICT EDUCATIONAL OFFICER, KOLLAM. EXT.P.3: COPY OF THE REPRESENTATION DTD. 06/08/2008 SUBMITTED BY THE PETITIONER BEFORE THE DIRECTOR OF PUBLIC INSTRUCTION. EXT.P.4: COPY OF THE REPRESENTATION DTD. 06/08/2008 SUBMITTED BY THE PETITIONER BEFORE THE DEPUTY DIRECTOR (EDUCATION), KOLLAM. EXT.P.5: COPY OF THE COMMON JUDGMENT DTD. 31/05/2007 IN W.P.(C).NOS. 15852/07 AND 15494/07 OF THIS HONOURABLE COURT. EXT.P.6: COPY OF THE JUDGMENT IN W.A. 3020/07 OF THIS HONOURABLE COURT DTD. 03/01/2008. EXT.P.7: COPY OF THE ORDER IN R.P.485/08-K DTD. 04/07/2008 OF THIS HONOURABLE COURT. EXT.P.8: COPY OF THE ORDER NO. B4/11239/2007 K. DIS. DTD. 07/11/2008 OF THE R.3. EXT.P.9: COPY OF THE JUDGMENT IN CONTEMPT CASE (CIVIL) NO.1218/2008 OF THIS HONOURABLE COURT. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. P.N.Ravindran, J. ================== W.P.(C) No.768 of 2009 ===================== Dated this the 31st day of March, 2009. JUDGMENT Heard Sri. S.P.Aravindakashan Pillay, the learned counsel appearing for the petitioner, Smt. T.B. Remany, the learned Government Pleader appearing for respondents 1 to 3 and Sri. P.Gopalakrishnan Nair, the learned counsel appearing for the fifth respondent. Though the fourth respondent has been served, there was no appearance on behalf of the fourth respondent when the case was called on for hearing today. 2. The petitioner and the fifth respondent are sisters. They are the children of late R.Achuthan, who had established four schools, namely, Chembakassery U.P. School, Chempakassery High School, Chempakassery Higher Secondary School and Chempakassery T.T.I. Late R.Achuthan had two wives, namely Smt. Kunjukutty and Smt. K.Devayani. Smt. A.Krishnaveni, Smt. A.Lalitha Das, Sri. A.Asokan, Sri. A.Baburaj and Smt. A.Udayakumari and the petitioner are the children born to late R.Achuthan in his first wife, Smt. Kunjukutty. Sri. A.Venugopal, Smt. A.Saraswathy, Sri. A.Rajagopal, Sri. A.Jayagopal and Smt. A.Renukadevi are the children born to late R.Achuthan in his second wife, Smt. Devayani. On the death of late R.Acuthan, disputes and differences arose between his children. The children born to late R.Achuthan in his first wife Smt. Kunjukutty filed O.S.No.147 of 1988 in the Court of the WP(C) 768/09 -: 2 :- Principal Subordinate Judge of Kollam. While the said suit was pending, the parties arrived at a settlement and in terms of the settlement, a compromise decree was passed. As per the compromise decree, the schools were to be administered by Joint Managers elected by the two groups for a period of one year. Pursuant to the settlement arrived at by and between the parties, Ext.P1 bye-laws were framed and submitted for approval of the Deputy Director of Education, Kollam. By order passed on 8.7.2005 the Deputy Director of Education, Kollam approved Ext.P1 bye-laws. 3. Ext.P1 bye-laws state that the maximum strength of the Managing Committee shall be 13, consisting of the first wife and her six children and the second wife and her five children. Ext.P1 bye-laws also stipulates that the Managing Committee shall meet every year before 31st May and elect one among the members of each group to be the Joint Manager for a period of one year commencing from 1st June of that calender year ending with 31st May of the succeeding year. Paragraph VI (vii) of Ext.P1 bye-laws notices that the fifth respondent herein and also Sri. A.Rajagopal, son of late A.Achuthan in his second wife who are employed in the school run by the educational agency, are disqualified to be members of the Managing Committee and that they will become members of the Managing Committee only when they cease to be in service or the Kerala Education Rules are amended by deleting the Rule which makes them disqualified to be members of the Managing WP(C) 768/09 -: 3 :- Committee. 4. It appears that after the suit was settled out of court and Ext.P1 bye-laws was framed and approved by the Director, disputes arose among the children of late R.Achuthan in his first wife. There was a vertical split among the six children of late R.Achuthan in his first wife. In the meeting of the said six members held to elect a Joint Manager for the period from 1.6.2007 to 31.5.2008, three persons, namely, Smt. A.Udayakumari, Sri. A.Baburaj and Smt. A.Lalitha choose Smt. A.Lalitha as the Joint Manager while the other three persons, namely, Sri. A.Asokan, Smt. A.Krishnaveni and Smt. A.Vasumathy choose Smt. A.Krishnaveni as Joint Manager. This led to a tie. The District Educational Officer resolved the dispute by directing that both Smt. A.Krishnaveni and Smt. A.Lalitha would be eligible to act as Joint Managers representing the group of Smt. Kunjukutty for six months each during the year 2006-2007. Challenging the order passed by the District Educational Officer, Smt. A.Krishnaveni filed W.P.(C) No.15852 of 2007 in this Court. The fifth respondent herein was the seventh respondent therein. The petitioner herein was joined as a party to the said Writ Petition. Smt. A.Lalitha along with Sri. A.Baburaj filed W.P.(C) No.15494 of 2007 in this Court seeking approval of appointment of Smt. A.Lalitha as the Joint Manager. Both the Writ Petitions were disposed of without notice to all the parties. Therefore, though the writ petitioner was a party to W.P.(C) No.15494 of 2007, notice of the Writ Petition was not issued to her and she was not heard WP(C) 768/09 -: 4 :- before the Writ Petitions were disposed of by Ext.P5 judgment delivered on 31.5.2007. The Writ Petitions were disposed of in view of the settlement arrived at between the parties who were represented through counsel. It was agreed that Smt. A.Krishnaveni will act as the Joint Manager for a period of six months and that Smt. A.Lalitha will act as the Joint Manager for the remaining period. When the petitioner came to know of Ext.P5 judgment, she filed W.A. No.3020 of 2007 in this Court. On the ground that the remedy if any available to her is to move the learned Single Judge in review, the Writ Appeal was dismissed. The petitioner thereupon filed R.P. No.485 of 2008. By Ext.P7 order dated 4.7.2008 this Court held that rights of the petitioner are not concluded by Ext.P5 judgment and that if she wants to carry on the fight, she can choose to do so. It was held that there is nothing in Ext.P5 judgment which would take away her rights in that regard. 5. It appears that for the period from 1.6.2007 to 31.5.2008 the petitioner and Smt. A.Lalitha were elected by two groups as Joint Managers to represent the children of Smt. Kunjukutty and Sri. A.Venugopal was elected by the other group representing Smt. Devayani's children and they were approved as the Joint Managers. This Writ Petition is filed contending that the fifth respondent, who is a Clerk in Chempakassery H.S. School cannot act as a member of the Managing Committee so long as she remains in employment. The petitioner relies on the stipulation in paragraph VI (vii) of Ext.P1 bye-laws which reads as WP(C) 768/09 -: 5 :- follows in support of the said contention: 6. The learned counsel for the petitioner contends relying on Rule 8(1) of the Kerala Education Rules that the members of the Managing Committee or the Managing Body of an aided school are not eligible for appointment in that school or any other school under the same educational agency. The learned counsel also contends that apart from the fact that the fifth respondent's appointment as Clerk is illegal, by reason of that appointment she also becomes ineligible to be a member of the Managing Committee in view of the stipulation in paragraph VI (vii) of Ext.P1 bye-laws quoted above. Per contra, Sri. P.Gopalakrishnan Nair, the learned counsel appearing for the fifth respondent contends that the restriction is only as regards membership in the “ . . . . . . . “ and not in the Managing Committee and that the fifth respondent can participate in the meetings of the Managing Committee to elect the Joint Manager. WP(C) 768/09 -: 6 :- 7. I have considered the submissions made at the Bar by the learned counsel appearing on either side. The fifth respondent is admittedly employed as a Clerk in Chempakassery H.S. School. She was appointed after Chapter III of the Kerala Education Rules, 1959 came into force. In view of Rule 8(1) of Chapter III of the Kerala Education Rules, the fifth respondent's appointment was illegal. Since the fifth respondent's appointment is not questioned in this Writ Petition and as the fifth respondent has been continuing in service for the past several years, I am not pronouncing on that issue. However, the fact remains that the fifth respondent is working as a Clerk in Chempakassery H.S. School. Paragraph VI (vii) of Ext.P1 bye-laws notices that the fifth respondent is ineligible to be a member of the Managing Committee and that her disqualification to be a member of the Managing Committee will cease to exist as and when she retires from service or when she resigns or when the Government lifts the ban on such membership. A reading of Ext.P1 bye-laws indicates that it is the Managing Committee which consists of seven persons in one group and six in the other group have to elect a Joint Manager from each group for a period of one year. In the light of the stipulations in Ext.P1, especially the stipulation in paragraph VI (vii) thereof, I am of the opinion that the fifth respondent cannot participate in the meetings of the group to which she belongs. The bye- laws state that the schools are to be administered by the Managing Committee consisting of 13 members, 7 in one group and 6 in the other WP(C) 768/09 -: 7 :- who are to elect a person from among themselves as Joint Manager for a period of one year to represent each group. The schools are to be administered by two Joint Managers thus elected for a period of one year commencing from 1st of June and ending with 31st May of the succeeding calender year. In view of the fact that the fifth respondent is employed as a Clerk in Chempakassery H.S. School she cannot act as Joint Manager. On the terms of paragraph VI (vii) of Ext.P1 bye-laws the fifth respondent cannot also be a member of the Managing Committee. In any case, even if it is held that she is a member of the Managing Committee by reason of the fact that she is the daughter of late R.Achuthan in his first wife Smt. Kunjukutty, her right to vote as a member of the Managing Committee is taken away so long as she remains in service in the school. Therefore, I am in agreement with the learned counsel for the petitioner that the fifth respondent cannot vote in the meeting to be held in terms of paragraph VI (vii) of Ext.P1 bye-laws to elect a Joint Manager from among the seven persons who form one group, namely, the first wife and children of late R.Achuthan. I accordingly allow this Writ Petition and declare that the fifth respondent cannot vote in the meetings of the Managing Committee consisting of Smt. Kunjukutty, Smt. A.Krishnavenu, Smt. A.Vasumathy, Smt. A.Lalitha, Smt. A.Asokan, Sri. A.Baburaj and herself so long as she remains in service as a Clerk in Chempakassery H.S. School. Needless to say, as and when the fifth respondent ceases to be an employee of WP(C) 768/09 -: 8 :- Chempakassery H.S. School or any other school of the corporate educational agency, the disqualification will be cease and she will have the right to vote and also to act as the Joint Manager. P.N.Ravindran, Judge. ess