IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 WP(C).No. 9636 of 2005(V) ------------------------------------ PETITIONER(S): ----------------------- V.P.JASEELA, W/O.ABDUL JALEEL, PULIYANJALIL HOUSE, P.O.KAPPOOR, MALAPPURAM DISTRICT, PIN-679 552. BY ADV. MR.C.P.MOHAMMED NIAS RESPONDENT(S): -------------------------- 1. THE ASSISTANT EDUCATIONAL OFFICER, EDAPPAL, MALAPPURAM DISTRICT. 2. THE MANAGER, M.M.L.P.SCHOOL, NELLISSERY, SUKAPURAM P.O., VIA-EDAPPAL, MALAPPURAM DISTRICT, PIN-679 552. 3. THE HEADMASTER, M.M.L.P.SCHOOL, NELLISSERY, SUKAPURAM P.O., VIA-EDAPPAL, MALAPPURAM DISTRICT, PIN-679 552. 4. P.BAVA HAJI, S/O.LATE ABDU HAJI, PANDHALINGAL HOUSE, KAKKIDIPURAM, ALANGODE P.O., MALAPPURAM DISTRICT. 5. K.ABUBACKER @ BAPPU, S/O.MUHAMMEDKUTTY, KUNDURUMMEL HOUSE, NELLISSERY, SUKAPURAM P.O., VIA-EDAPPAL, MALAPPURAM DISTRICT. BY ADVS. MR.V.A.MUHAMMED FOR R2 & R3 MR.K.E.HAMZA FOR R2 & R3 MR.T.KRISHNAN UNNI, SENIOR ADVOCATE FOR R5 GOVERNMENT PLEADER MR.T.K.VIPINDAS FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.9636/2005 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE APPOINTMENT ORDER DT. 20.10.04 ISSUED BY THE 5TH RESPONDENT. P2:- COPY OF THE LETTER DT. 14.2.2005 SENT BY THE 4TH RESPONDENT TO THE PETITIONER. P3:- COPY OF THE LETTER DT. 14.2.2005 SENT BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT. P4:- COPY OF THE LETTER DT. 1.3.05 SENT BY THE 3RD RESPONDENT TO THE PETITIONER. P5:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC. NO.19464/04 DT. 22.1.07. P6:- COPY OF THE AFFIDAVIT AND ORDER OBTAINED FROM SUB COURT, TIRUR IN OS. NO.44/07. RESPONDENT'S EXHIBITS R3(a):- COPY OF THE ORDER NO.C/2594/03 OF THE ASST. EDL. OFFICER EDAPPAL DT. 4.11.03. R3(b):- COPY OF THE ORDER NO.G2-92003/03/DPI OF THE DIRECTOR OF PUBLIC INSTRUCTIONS DT. 5.1.04. R3(c):- COPY OF THE G.O.(RT) NO.2332/2004/G. EDN. OF THE GOVERNMENT. DT. 8.6.04. R3(d):- COPY OF THE ORDER NO.C/6044/(1)/2004 /L. DIS. OF THE ASST. EDL. OFFICER , EDAPPAL DT. 3.1.05. R3(e):- COPY OF THE ORDER NO.C/499/03/L. DIS. OF DO. DT. 15.3.05. R5(a):- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC. NO.23923/03 DT. 25.9.03. R5(b):- COPY OF THE PROCEEDING DT. 3.1.05. TRUE COPY P.A. TO JUDGE TSS HARUN-UL-RASHID,J. --------------------------- W.P.(C).NO.9636 OF 2005 ---------------------------- DATED THIS THE 11TH DAY OF MARCH, 2009 JUDGMENT Petitioner is an Assistant Teacher in the M.M.L.P. School. This writ petition is filed seeking to quash Exts.P2, P3 and P4 and for a direction commanding the lst respondent to approve the petitioner's appointment as P.D. Teacher in the said school. Petitioner is aggrieved by the orders issued by respondents 3 and 4 stating that she would not be permitted to rejoin duty in the school on the expiry of the leave. M.M.L.P. School is managed by Maslahathul Muslimeen Eucational & Charitable Trust, Nellissery. By the terms of the trust deed, the President of the trust shall be elected from the trust members and the President shall be the Manager of the Educational Institutions run by the trust. Sri K.Aboobacker alias Bappu continued as the President of the Trust till the expiry of his term of office i.e. 19/3/2003. According to the 4th respondent, a meeting of the Trust Members held on 21/4/2003 -2- W.P.(C).No.9636/2005 elected Sri Bava Haji , the 4th respondent herein as the President of the Trust and therefore he continued as the Manager of the Schools under the Trust. According to him, his appointment as the Manager of the schools was approved by the Assistant Educational Office, Edappal as per order No.C/2594/03 dated 4/11/2003 with effect from 25/4/2003. The 5th respondent, the erstwhile Manager, filed an appeal before the Director of Public Instruction, Trivandrum challenging the approval of the 4th respondent and the appeal stands dismissed by order dated 3/1/2004 upholding the order passed by the Assistant Educational Officer. The 5th respondent preferred a revision before the Government, which was dismissed by the Government by order dated 8/5/2004. Exts.R3 (a), (b) and © are the aforesaid orders in respect of U.P. Schools. Some time later, the 4th respondent's appointment as the Manager of M.M.L.P. School, Nellissery was approved as per order dated on 3/1/2005. Exts.R3(d) is the afore- said order in respect of L.P. School. Exts.R3(a) to R3(d) orders are challenged by the 5th respondent before this Court in W.P.(C) -3- W.P.(C).No.9636/2005 19464/2004. 2. The 5th respondent in the said writ petition contended that since the registration of the school was in 1983, the petitioner therein continued as the President of the Trust from 1983, that he was elected from time to time and that on the expiry of his term on 19/3/2003, he convened a meeting of the members of the Trust on 2l7/4/2003. In the meeting of the Trust he was elected as the President of the Trust and therefore he moved the A.E.O. for approving him as the Manager of the School on 28/4/2003. It is also stated in the writ petition that the 4th respondent herein, who claimed to be the elected President of the Trust, approached the A.E.O. for approval of his appointment, that the A.E.O. considered the rival claims of the petitioner and the 4th respondent (respondents 4 and 5 herein) and by Ext.R1(a) order dated 4/11/2003 approved the 4th respondent as the Manager of the School with effect from 25/4/2003. The appeal and the revision preferred before the Director of public instruction and the Government were dismissed by the respective -4- W.P.(C).No.9636/2005 orders, which are produced in this case as Ext.R3(b) and ©. The 4th respondent herein, who is the 4th respondent in W.P.(C). No.19464/2004 contended that pursuant to the Trust meeting held on 21/4/2003, he was elected as the President of the Trust and that he assumes charge as the Manager of the School under the Trust on 25/4/2003. Taking into account the fact that he was the elected President, the A.E.O. approved his appointment, which was confirmed by the Director of Pubic Instruction and the Government. 3. The main contention raised by Sri Aboobacker, the petitioner in the said writ petition, is that the Educational Authorities under the K.E.R. has no power or authority to decide the correctness of the election of the President of the Trust, that they exceeded their jurisdiction while passing the impugned orders and therefore requested this Court to set aside the impugned orders and to issue a direction to the A.E.O. to approve the appointment of the petitioner therein as the validly elected Manager. This Court, after considering the rival -5- W.P.(C).No.9636/2005 contentions set up by the parties, held that when there is a dispute concerning election of office bearers in the educational agency, the said dispute has to be settled by the civil court. But, in this case, by virtue of the provisions of the Trust deed, the president of the Trust is the ex-officio Manager of the school. This Court observed that the educational officer, who is enquiring about the validity of appointment of Manager incidentally has to look into the election of the President also. That is what has been done in this case. Without looking into the rival claims concerning the election as President, the Educational Officer cannot take a decision. So, I find nothing illegal in the procedure followed by the Educational Officer and higher authorities. But the question as to whether the 5th respondent or the 4th respondent was elected is a matter which has to be decided by the civil court. The findings of the Educational Officer, the D.P.I. and the Government will be subject to the decision of the civil court in the suit, if any, filed by the parties. This Court dismissed the writ petition without prejudice to the contentions of -6- W.P.(C).No.9636/2005 both sides. This Court also held that if the civil court passes any interim or final order regarding the election of the President, needless to say that the Assistant Educational Officer shall correspondingly modify the approval order to make the same in tune with the decision of the civil court. Thus, the dispute as to who is the ex-officio Manager of the Schools of the Trust is a matter, which the civil court has to decide. It is submitted at the bar that O.S.No.44/2007 on the file of the Sub Court, Tirur is pending decision, in which Aboobacker is the plaintiff and Sri Bava Haji is the contesting defendant. The civil court passed an order of status quo. Ext.P6 is the said order. 4. The 4th respondent and the Educational Authorities took the stand that the appointment of the petitioner cannot be approved, since the appointment has been done by the 5th respondent after the expiry of his term as Manager. The learned counsel for the 4th respondent submitted that the appointment of the petitioner as Assistant Teacher was done in violation of Exts.R3(a) to (c) orders and the appointment made subsequent to -7- W.P.(C).No.9636/2005 the approval of appointment of the 4th respondent as Manager confirmed in appeal and revision is illegal. Exts.R3(a) to (c) are the approval orders in respect of U.P. School and Ext.R3(d) is the approval order in respect of the newly started L.P. School. 5. During the pendency of this writ petition this Court by an interim order dated 30/3/2005 directed respondents 1 to 4 to permit the petitioner to rejoin duty as P.D. Teacher forthwith and further directed the 3rd respondent to file an affidavit reporting compliance of the above direction on or before 8/4/2005. It is submitted that the petitioner is continuing in service as an Assistant Teacher. 6. The petitioner was appointed as L.P. School Assistant on 20/10/2004. The appointment was made by the 5th respondent. According to the 5th respondent, the election of the 4th respondent as President of the Trust is not in order and that he is the duly elected President of the Trust. From Ext.R3(a) to Ext.R3(d), it is clear that the Educational Authorities approved the appointment of the 4th respondent as the Manager. The issue as to who is the -8- W.P.(C).No.9636/2005 duly elected President of the trust is pending before the civil court. The question as to whether the 4th respondent or the 5th respondent can continue as the Manager of the institution depends upon the decision of the civil court. Since the 4th respondent's appointment as Manager was approved by the Educational Authorities, the authorities rightly passed Ext.R3(c) order rejecting the proposal for approval of appointment of the petitioner as L.P. School Assistant. In the light of Ext.P5 judgment passed by this Court directing the parties to abide by the decision of a civil court in the matter of Managership, the appointment of the petitioner as L.P.S.A by the 5th respondent also depends upon the decision of the civil court as to who is the President of the Trust and who is duly elected as the Manager of the school. It is made clear that if the civil court finds that the 4th respondent is the duly elected President of the trust, the appointment of the petitioner as LPSA by the 5th respondent is illegal and not liable to be approved. On the other hand, if the civil court finds that the 5th respondent is the duly elected -9- W.P.(C).No.9636/2005 President of the Trust and duly appointed Manager of the School, then the Educational Authorities shall approve the appointment of the petitioner as LPSA. 7. So long as the Educational Authority has approved the Managership of the 4th respondent, the appointment of the petitioner by the 5th respondent prima facie is illegal. 8. Since this Court issued interim order directing respondents 1 to 4 to permit the petitioner to rejoin duty as P.D. Teacher and for the reason that she is continuing as a Teacher in the said school, in the interest of justice, I direct the lst respondent-A.E.O. to provisionally approve the appointment of the petitioner within a period of one month from the date of receipt of a copy this judgment, till a final decision is taken in O.S.No.44/2007 by the Sub Court. The respondents 1 to 3 on provisional approval of the appointment, shall disburse the salary and other benefits due to the petitioner including arrears till date. The salary shall be paid regularly and the arrears shall be disbursed within a period of two months from the date of -10- W.P.(C).No.9636/2005 approval of her appointment. It is made clear that in case the civil court finds that the 5th respondent is the duly elected President of the Trust, the petitioner cannot continue as a Teacher from the date of judgment in O.S.No.44/2007. The Sub Court shall dispose of the suit, O.S.No.44/2007 within a period of six months from today. Writ Petition is disposed of as above. Sd/- HARUN-UL-RASHID, Judge. kcv.