IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 18TH JUNE 2008 / 28TH JYAISHTA 1930 RFA.No. 327 of 2008() --------------------- OS.90/2006 of SUB COURT,ATTINGAL .................... APPELLANTS/PLAINTIFFS ---------------------- 1. SEENA UMMAL, `SHANU', CHITTATTUMUKKU P.O., KADINAMKULAM VILLAGE, THIRUVANANTHAPURAM DISTRICT. 2. SHAHANA, DARUL SHIFA, CHITTATTUMUKKU P.O., KADINAMKULAM VILLAGE, THIRUVANANTHAPURAM DISTRICT. 3. SHIYAS AHAMMED, `SHANU', CHITTATTUMUKKU P.O., KADINAMKULAM VILLAGE, THIRUVANANTHAPURAM DISTRICT. 4. SHAHEER, `SHANU', CHITTATTUMUKKU P.O., KADINAMKULAM VILLAGE, THIRUVANANTHAPURAM DISTRICT. 5. RAMLA BEEGAM, THANOOJA MANZIL, PUTHEN KADAVU, KANIYAPURAM, PALLIPPURAM VILLAGE, THIRUVANANTHAPURAM DISTRICT. 6. THANOOJA, SHARAM, VETTORAOD, KANIYAPURAM, PALLIPPURAM VILLAGE, THIRUVANANTHAPURAM DISTRICT. 7. LIJEENA, STATION VIEW, KANIYAPURAM, PALLIPPURAM VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.M.R.RAJESH SRI.PRADEEP.V.S. SMT.A.K.PREETHA RESPONDENTS/DEFENDANTS ----------------------- 1. MASOONATHU BEEVI, NIZAM MANZIL, KANIYAPURAM, THIRUVANANTHAPURAM. R.F.A.NO.327/2008 & CR.OBJ.NO.27/2008 -2- 2. NAZEERA, FATHIMA MANZIL, PUNALOOR, KOLLAM DISTRICT. 3. NAJEEBA, KHADAR MANZIL, KARIMPUVILA, POONTHURA P.O., THIRUVANANTHAPURAM. 4. NISHANTH, CHAITHANYA, NEERAVIL, PERINADU P.O., KOLLAM. 5. NIZAM.P (WRONGLY SHOWN AS NISHAM IN THE IMPUNGED JUDGMENT), NIZAM MANZIL, PUTHANKADAVU, KANIYAPURAM, THIRUVANANTHAPURAM. 6. RASVI.E.R., THANOOJA MANZIL, PUTHANKADAVU, KANIYAPURAM, THIRUVANANTHAPURAM. 7. RIYAS.E.R., THANOOJA MANZIL, PUTHANKADAVU, KANIYAPURAM, THIRUVANANTHAPURAM. 8. RUKIYA BEEVI, STAR BUILDING, PUTHANKADAVU, KANIYAPURAM, THIRUVANANTHAPURAM. 9. THE DISTRICT EDUCATIONAL OFFICER, THIRUVANANTHAPURAM. 10. THE DEPUTY DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM. BY ADV. SRI.P.N.MOHANAN SRI.P.N.MOHANAN FOR R5 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/06/2008,ALONG WITH CR.OBJ. NO.27 OF 2008 & CAVEAT O.P. NO.385/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: I.A.NOS.2173/2008,2131/2008 & 2119/2008 ---------- Dismissed Sd/- P.R.RAMAN, JUDGE. 18/6/2008 Sd/- T.R.RAMACHANDRAN NAIR, JUDGE. P.R.RAMAN & T.R.RAMACHANDRAN NAIR,JJ. ------------------------------- R.F.A.NO.327 OF 2008 & CROSS OBJECTION NO.27 OF 2008 -------------------------------- Dated this the 18th day of June, 2008 JUDGMENT Raman,J. Appellants are the plaintiffs in O.S.No.90/96, which is a suit for framing a scheme for the management of 3 aided schools situated in the plaint A schedule property and for perpetual prohibitory injunction. The court below has passed a preliminary decree allowing the prayer for framing a scheme, which is as follows: "1. A scheme shall be framed for the management of the plaint A schedule properties and B & C schedule schools. 2. The plaintiffs and defendants 1 to 8 are at liberty to submit a draft scheme for the management of the schools and the properties. 3. The scheme shall be adjudicated in a final decree proceedings. 4. The plaintiffs are directed to file a final decree application within a period of three months. 5. Till a viable scheme is framed by the court in a final decree proceedings, the 5th defendant is allowed to continue as the Manager of the schools." -2- R.F.A.NO.327/2008 & Cross Objection No.27/2008 2. The appellants are aggrieved only by the 5th clause in the above decree as per which the 5th defendant is allowed to continue as the Manager of the schools. As a matter of fact, in the course of the argument the learned counsel for the appellants points out that there are certain observations in the judgment now rendered which gives him the right to appoint the teachers in the schools and if those observations are read along with Clause 5 then, according to him, there is a clear violation of the directions earlier issued by this Court in W.P.(C).No.7947/2007 and confirmed in appeal. The 5th defendant on the other hand, has filed a cross objection raising the contention that no scheme shall be framed by the civil court and according to him, in view of the bar under Section 33 of the Kerala Education Act the civil court has no jurisdiction in the matter. 3. Admittedly, the schools belong to the plaintiff and defendants 1 to 8. It is also admitted that at present there is no scheme. Therefore, for the proper management and administration of the schools necessarily, there should be a scheme. We may now consider the objection of the 5th respondent. According to him, the suit is not maintainable. We placed reliance on Section 33 of the Kerala Education Act, which provides that notwithstanding anything contained in the Code of Civil Procedure, 1908 -3- R.F.A.NO.327/2008 & Cross Objection No.27/2008 or in any other law for the time being in force, no court shall grant any temporary injunction or make any interim order restraining any proceeding which is being or about to be taken under this Act. It is clear that only in the matter of passing interim orders against any order that may be issued under this the Kerala Education Act that the bar operates. In the matter of framing a scheme only the civil court has got jurisdiction. There is no merit in the cross objection. It is accordingly dismissed. 4. It is true that the matter had come to this Court earlier in W.P. (C).Nos.23340 & 7947/2007. When there was a dispute of Managership of the school, the Educational Authorities recognized the 5th defendant as the Manager of the School subject to the final decision in the suit. This Court as per the judgment in the aforesaid writ petitions, held that the interim order passed in the writ petition will continue till the disposal of the suit, but left open the right of the parties to seek appropriate directions, in case situation so warrants and also directed the civil court to pass necessary orders in accordance with law. No regular appointment shall be made in the school for both teaching and non-teaching staff. However, in paragraph 9 of the judgment, it was made clear that it will be open to the 4th defendant therein to fill up the vacant post of teachers in the schools, if there are rightful Rule 51 (A) claimants, in terms of the -4- R.F.A.NO.327/2008 & Cross Objection No.27/2008 order of staff fixation and such appointment shall be subject to the result of the original suit and shall be made after obtaining permission from that court. In other words, while 5th respondent herein may continue to be the Manager of the school, his right to make appointment is interdicted by the final judgment which however is only subject to the final disposal of the suit. Therefore, according to the appellants, the appointment is contrary to the direction contained in the judgment in the writ petitions, since the suit is not finally disposed of and only a preliminary decree was passed. 5. It must be remembered that the writ petitions referred to above were filed in 2007 and necessarily, since the suit was pending, this Court thought that only such appointments which were urgently required to be made under Rule 51A alone be made by the 5th respondent so that the court below could frame the scheme in the suit and depending upon the scheme the right of the Manager could be exercised. More than a year has elapsed therefrom. A preliminary decree was already passed. Final decree application is pending consideration. Schools have already opened and according to the 5th defendant there are about 9 vacancies in the schools including three 51A claimants. Therefore, if there is a restraint on the right to appoint the teaching staff in the schools that will necessarily affect the students of these schools. That should not happen. Further we notice -5- R.F.A.NO.327/2008 & Cross Objection No.27/2008 that the learned Single Judge himself has permitted the parties to move the court below for appropriate modification in case a need arises, which clearly shows that the direction issued by this Court in the judgment in the writ petitions is subject to any modification that may be made by the civil court provided situation arises. Now, as already pointed out, the situation has arisen to make necessary modification in the order. In the larger interest of justice, we cannot restrain the Manager from appointing the teaching staff in the schools. The 5th defendant have only 1/4th right over the property. Admittedly, both the plaintiff and defendants 1 to 8 are jointly entitled to administer the schools; but so long as the scheme is not framed by the court below an interim arrangement has to be made . Accordingly, we think that Clause 5 to be modified to the following terms: 6. During the course of hearing, we suggested that one among the appellants may be nominated as a representative. Along with him the Manager of the school, (the 5th defendant) may conduct selection for appointment of staff of these schools. After taking some time, it was agreed that the lst appellant is nominated by the remaining to represent them. Accordingly, we direct that the lst appellant and the 5th defendant shall jointly hold the selection for appointment of the teaching staff of these schools. The procedure shall be minuted and signed by both the lst -6- R.F.A.NO.327/2008 & Cross Objection No.27/2008 appellant and the 5th defendant. Actual appointment order shall however be issued by the 5th defendant. A copy of the proceeding along with the appointment order shall be sent to the concerned Educational Authority while seeking for approval. This interim arrangement will continue until final disposal of the suit. Clause 5 will stand amended accordingly. 7. In view of the pendency of the matter, it is necessary that a quietus be given to the litigation at an early date and we direct the court below to dispose of the matter as expeditiously as possible, at any rate, within a period of six months. Appeal is allowed to the above extent. P.R.RAMAN, Judge. T.R.RAMACHANDRAN NAIR, Judge. kcv.