IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 11TH AUGUST 2011 / 20TH SRAVANA 1933 WP(C).No. 5005 of 2005(U) ------------------------- PETITIONERS: ------------------ 1. K.M.VARGHESE, AGED 68 YEARS, S/O. K.V.MATHEW, KOTTAYIL, VEEYAPURAM MURI, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT. 2. K.C.JOSEPH, S/O.CHACKO JOSEPH, VALLAKKARI PURACKKAL, MELPPADAM MURI, VEEYAPURAM, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT. 3. O.C.KOSHY, OTTATHENGIL, PAVUKKARA MURI, MANNAR VILLAGE, CHENGANNUR TALUK. 4. K.O.KURIEN, KOCHUMALIPPURATHU, MANNANTHOTTU VAZHI PADINJATTU MURI, NIRANAM VILLAGE, THIRUVALLA TALUK. 5. K.V.KURIEN, AGED 82 YEARS, S/O. KURIEN VARKEY, KARUKAYIL HOUSE, KIZHAKKUMBHAKOM (P.O), THIRUVALLA, PATHANAMTHITTA DISTRICT. BY ADV. SRI.S.SHANAVAS KHAN RESPONDENT(S): ----------------------- 1. THE JOINT SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT OF KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, THIRUVALLA. 4. SHRI C.A.CHACKO, S/O.C.C.ABRAHAM, CHATHANKERIL HOUSE, ROSEMOUNT, STADIUM ROAD, THIRUVALLA-1. R1 TO R3 BY GOVERNMENT PLEADER SMT.NISHA BOSE R4 BY ADVS. BY ADV.SRI.V.A.MUHAMMED SMT.DEEPA G. PAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/08/2011, ALONG WITH R.P. NO.521 of 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5005 of 2005(U) ------------------------------------- APPENDIX --------------- PETITIONER'S EXHIBITS ------------------------------------ EXT.P1. COPY OF PROCEEDINGS NO.R. DIS.4040/73/GH DATED 4.2.1974 OF THE REGIONAL DEPUTY DIRECTOR OF PUBLIC INSTITUTION. EXT.P2. COPY OF THE NEW CONSTITUTION OF ST.THOMAS HIGH SCHOOL, KADAPRA, ALONG WITH THE LIST OF MEMBERS. EXT.P3. COPY OF JUDGMENT DTD. 30.10.2002 IN OS. NO.161/95 OF THE MUNSIFF'S COURT, THIRUVALLA. EXT.P4. COPY OF PROCEEDINGS DTD. 13.11.99 OF THE 2ND RESPONDENT. EXT.P5. COPY OF JUDGMENT DT. 16.6.2004 IN WPC N.40064/2003 (T) OF THIS HON'BLE COURT. EXT.P6. COPY OF GVERNMENT ORDER NO.5204/4/G.EDN. DT. 6.12.2004. RESPONDENT'S EXHIBITS : NIL ------------------------------------- / TRUE COPY / P.A. TO JUDGE VK T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 5005/2005-U and R.P. No.521/2011 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of August, 2011. JUDGMENT R.P.No.521/2011 is filed by the petitioner in W.P.(C) NO.36905/2004 which stands dismissed by judgment dated 6.4.2011. In the review petition, it is contended that some of the aspects were not considered by this Court. In the said writ petition, the challenge was against the order passed by the Government as per Ext.P9 and the very same order is under challenge in W.P.(C) No.5005/2005. First I will refer to the contentions raised by the petitioners in W.P.(C) No.5005/2005. 2. The petitioners, five in number, claim that they are members of a Committee formed for managing the administration of a school known as St. Thomas High School, Kadapra, Pathanamthitta district. Originally the administration of the school was vested in a Committee consisting of 16 persons by virtue of an 'Udampadi' (Agreement) No.115/1093 ME. It is the case of the petitioners that the school was upgraded as a U.P. School and consequent on the death of many of the members to the said Udampadi, the committee was expanded inducting new members to ensure the smooth functioning and management of the school. A modified constitution for the wpc 5005/2005 & rp 521/2011 2 management of the school was drafted and the said constitution was approved by the Regional Deputy Director of Education as per Ext.P1 order. Twenty one new members were inducted as members of the Managing Committee as per the new constitution, a copy of which is produced as Ext.P2. 3. It appears that several disputes arose thereafter and finally the matter was taken up before the Civil Court in O.S. No.161/1995. Various reliefs were sought for in the said suit also, but the suit was dismissed as per Ext.P3 judgment. Ext.P4 is the proceedings of the second respondent whereby the appointment of Shri T.K. Varghese as Manager of the school was cancelled, and a further direction was issued to convene a meeting of the Committee in accordance with the 1974 Constitution. He challenged it before this Court in O.P. No.32190/1999. It appears that a later order passed by the District Educational Officer not to approve the appointment of the fourth respondent as Manager, was again challenged in O.P.No.12207/2002. The said writ petition was disposed of along with connected matters, directing the Munsiff's Court, Thiruvalla to dispose of O.S. No.161/1995 within three months. 4. It is the case of the petitioners that when the matter stood thus, one wpc 5005/2005 & rp 521/2011 3 Shri K.K. Iype who was the petitioner in W.P.(C) No.36905/2004 was elected as Manager. His appointment was approved, which was taken in appeal before the second respondent by the fourth respondent, but his appeal was rejected by an order dated 1.12.2003. The said order was challenged by him in W.P.(C) No.40064/2003. This Court, by Ext.P5 judgment, directed the fourth respondent to file a revision petition before the Government and thereafter the revision petition was disposed of by the impugned order, Ext.P6. 5. The petitioner in W.P.(C) No.36905/2004, viz. the review petitioner, is also asserting the same right as that of the petitioners in W.P. (C) No.5005/2005. The whole dispute now turns on the legality of the order passed by the Government, produced as Ext.P6 in W.P.(C) No.5005/2005. Learned counsel for the petitioners invited my attention to the findings rendered by the Government therein and especially in the operative portion, wherein the Government held that the approval given to the 1974 committee by the Department is cancelled and the eight member committee was directed to elect a manager accordingly. It is contended that since the said direction by the Government affects the rights of other members of the committee governed by the 1974 constitution, the persons like the wpc 5005/2005 & rp 521/2011 4 petitioners who are members of the said Committee, ought to have been heard in the matter. It is thus submitted that the same vitiates the entire proceedings. 6. Learned Senior Counsel appearing for the review petitioner also submitted that when the matter was heard by the District Educational officer, all the members were issued notices and later the said fact was recorded by the Director of Public Instruction in his order and the same is a lacuna in the present proceedings. 7. Learned counsel appearing for the contesting respondents submitted that all the parties were arrayed as parties in the civil suit and the Government has only gone by the findings in the civil suit and therefore the direction by the Government in Ext.P6 cannot be said to be illegal on any score. 8. In this context, learned counsel appearing for the petitioners in W.P.(C) No.5005/2005 submitted that in the civil suit also there is no finding with regard to the validity of the approval of 1974 constitution and my attention was invited to the findings therein. 9. The suit O.S. No.161/1995 is filed by four plaintiffs and the whole members as per the 1974 constitution have been arrayed as parties either as wpc 5005/2005 & rp 521/2011 5 defendants or as plaintiffs. A copy of the plaint was made available for perusal. The reliefs sought for in the suit are the following: “(A) declaring that the plaintiffs and defendants 1, 2, 4 to 13, 15, 16, 18 to 23 and additional defendants 30, 31 and 32 are the members constituting the committee for the St. Thomas High School, Kadapra, Niranam Kizhakkumbhagom; (B) declaring that the 1st defendant and additional 31st defendant has not been legally elected as Manager of the school; © restraining the 1st defendant and additional 31st defendant by a permanent prohibitory injunction from making any appointments t any post in the St. Thomas High School, Kadapra; (D) restraining the defendants 25, 26 and 27 from approving the appointments of defendants 28 and 29 made by the 1st defendant as teachers of the St. Thomas High School, Kadapra and the appointments, if any, made in future by first defendant or additional 31st defendant to any posts in the school; (E) directing election to be conducted to the posts of President, Secretary and Treasurer of the Committee and the Manager of the St. Thomas High School, Kadapra and the member to assist the Manager and appointing a receiver or Commissioner for the purpose; (F) granting the full costs of the plaintiffs from the first defendant and the other contesting defendants; and (G) granting such other reliefs that are found necessary and deemed fit by the Hon'ble Court to grant.” wpc 5005/2005 & rp 521/2011 6 The judgment shows that the suit was dismissed. Issue No.2 is whether the plaintiffs are entitled for the declaration sought?; and issue No.3 is whether the plaintiffs are entitled to get the election of the 1st defendant and addl. 31st defendant as void? It can be seen that while discussing issue Nos.2 to 5, after referring to the reconstituted committee the civil court expressed the following: “On a consideration of the rival contentions and the assessment of the evidence the following inferences can be drawn. Admittedly Ext.A1 deed is the original constitution. It is a registered document creating right of ownership and the management in 16 persons. On a perusal of Ext.A1 would reveal that the founders of Ext.A1 had clear vision as to the succession of the management and administration of the school. Apart from Ext.X2 a copy of a reconstituted deed drawn on a white paper, the plaintiffs failed to produce the authenticated copy of the reconstituted deed. It is the admitted case of the PW1 that there is no evidence regarding the payment of contribution mentioned in the reconstituted deed. Ext.X1 and X2 are marked subject to the objection of the counsel for the defendants. His main objection was both are not properly proved documents. On a consideration of the summons taken by hand by the plaintiffs to the Director of Public Administration, Thiruvananthapuram who was cited as witness No.6 in the witness schedule is seen not properly served on the Director of Public Instruction. Further somebody from the office of the DPI has faxed wpc 5005/2005 & rp 521/2011 7 Ext.A2 fax message to the DEO, Thiruvalla to produce the file relating to the St. Thomas High School, Kadapra. Somebody from DEO office appeared in court and produced Ext.X1 and X2 documents. Ext.X1 is a copy of the proceedings of the Regional Deputy Director of Public Instructions, Thiruvanathapuram accompanied by the alleged reconstituted deed. There appears some force in the objection of the defendants counsel and I have no hesitation to uphold the objection and I hold that Ext.X1 and X2 are not properly produced or proved in evidence and therefore both documents are inadmissible in evidence..............Anyway for an adjudication of the facts and circumstances of the case on my hand a decision as to the validity or legality of the approval of the reconstituted deed is not warranted. Therefore, I am not rendering any finding in that respect. It is the admitted case that the plaintiffs kept mum till 1995. It is well settled that law can only help those who are vigilant and not those who slumber over their rights. Further the conduct of the plaintiffs since 1974 amounts to acquiescence, they cannot be permitted to approbate and reprobate. They kept mum when their own person was acting as a manager. When somebody against their wish occupied the position of the manager, then they cannot turn around and contend that the election of the manager, is illegal. On a careful consideration of the entire evidence available the plaintiffs have failed miserably to substantiate the case set up in the plaint. The plaintiffs are not wpc 5005/2005 & rp 521/2011 8 entitled to the relief sought in the suit.” Of course, there is an observation that “Anyway for an adjudication of the facts and circumstances of the case on my hand a decision as to the validity or legality of the approval of the reconstituted deed is not warranted.” But still, a reading of the entire findings will show that serious suspicion was expressed by the civil court over the conduct of the approving authority. This is clear from the following sentence: “There arises serious suspicion over the conduct of the approving authority. In the given facts and circumstances without evidence regarding the acquisition of membership and the transfer of right, to the newly constituted committee by a registered deed how the Regional Deputy Director of Public Instruction approved the constitution is also remain unexplained.” A reading of the judgment shows that the plaintiffs failed to adduce proper evidence in the matter and even the reconstituted deed, Ext.X2 is said to be drawn in a white paper and the plaintiffs failed to produce the authenticated copy of the reconstituted deed. 10. The judgment rendered in the earlier writ petition, viz. W.P.(C) No.12207/2002, this Court directed the disputes to be resolved in the civil suit itself. Evidently, the limited scope of the power of the Government and wpc 5005/2005 & rp 521/2011 9 the statutory authorities to interfere in such disputes, especially when a civil suit is concluded, cannot be disputed. They are bound by the decisions of the civil court in a dispute like this. It is for that reason, this Court directed the parties to agitate the matter before the civil court. The judgment of the civil court was never challenged and therefore the findings in the judgment and the decree therein have become final. 11. In that view of the matter, it cannot be said that the Government went wrong in issuing Ext.P6 order. A reading of the findings contained in the judgment of the civil court will only show that the court was of the view that approval granted by the Regional Deputy Director, of the 1974 constitution was also not properly done. Therefore, it cannot be said that the Government has travelled outside the jurisdiction and entered wrong findings which are totally illegal and which warrants interference by this Court, especially since the decree and judgment of the civil court have become final. 12. Evidently, as all the parties including the petitioners herein who were parties to the civil court, did not challenge the findings rendered by the wpc 5005/2005 & rp 521/2011 10 civil court in the judgment in O.S. No.161/1995. Even though learned Senior Counsel appearing for the review petitioner and learned counsel appearing for the petitioners in W.P.(C) No.5005/2005 sought for a rehearing of the matter by the Government, in the light of the findings rendered by the civil court, it cannot be said that the Government has gone wrong in issuing the order. 13. In that view of the matter, W.P.(C) No.5005/2005 is dismissed. 14. R.P.No.521/2011 is filed seeking for a review of the judgment. The very same Government Order which was impugned in W.P.(C) No.5005/2005, was under challenge in this writ petition. I have considered the validity of the findings of the Government in the said order, in the judgment in W.P.(C) No.5005/2005. I do not find any reason to review the judgment, since there is no apparent error. Therefore, the review petition is dismissed. It is made clear that I have considered the findings in the judgment of the civil court only for the purpose of the determination of the issues raised in these writ petitions. No costs. (T.R. Ramachandran Nair, Judge.) kav/