IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 12TH NOVEMBER 2010 / 21ST KARTHIKA 1932 WP(C).No. 33427 of 2010(C) ----------------------------------------- PETITIONER(S): ---------------------- ANWAR MOHAMMED, S/O.T.M.MOHAMMEDALI, AGED 35 YEARS, MANAGER, T.K.M.R.M.V.H.S.SCHOOL, VALLANA, P.O.ERUMAKAD, PATHANAMTHITTA DISTRICT. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMSA RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM-14. 3. THE DISTRICT EDUCATIONAL OFFICER, THIRUVALLA-689101, PATHANAMTHITTA DISTRICT. BY GOVT. PLEADER SMT. NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss K.T.SANKARAN, J. ------------------------------ W.P.(C) No.33427 of 2010 ------------------------------ Dated this the 12 th day of November, 2010 JUDGMENT The petitioner is the son of T.M.Mohammadali, who was the Manager of T.K.M.R.M.Vocational Higher Secondary School, Vallana in Pathanamthitta District. The Manager, T.M.Mohammadali, died on 8.4.2008. It is stated that after his death, the properties were partitioned, as per Ext.P1 partition deed. It is stated that the school and a portion of the properties were allotted to the petitioner. Properties were also allotted to the widow of Mohammadali. The widow of Mohammadali gifted her rights to the petitioner, as per Ext.P2 Gift Deed. Thus, the petitioner claims to be the owner of the property of the school and its Management. 2. The petitioner submitted an application to the District Educational Officer for approval of W.P.(C) No.33427 of 2010 2 change of Management. It is stated that the District Educational Officer directed the petitioner to submit an application for change of Management involving change of ownership. Accordingly, the petitioner submitted such application, which is marked as Ext.P4. Again the District Educational Officer returned the application pointing out certain defects. The petitioner states that the defects were cured. As per Ext.P5 communication dated 9.11.2009, the District Educational Officer forwarded the application to the Director of Public Instruction, treating the application under Rule 5A of Chapter III KER, which should be considered by the Director of Public Instruction. The Director of Public Instruction returned the application pointing out certain defects. It is stated that the defects were cured and the application was resubmitted from the office of the District Educational Officer, as evidenced by Ext.P7 communication dated 15.2.2010. Thereafter, the Director of Public Instruction W.P.(C) No.33427 of 2010 3 passed Ext.P9 order dated 17.8.2010 which reads as follows: “ I invite your attention to the reference cited. As per Rule 4 of chapter III KER Educational officers are competent to approve the appointment of manager. In the given case the Educational agency is having only one school and that is also within one Revenue District. District Educational Officer is the authority to approve the appointment of personals of the manager. In this circumstances, the proposal is returned to District Educational Officer, Thiruvalla for taking action as stated in Rule 4 chapter III KER.” 3. The reliefs prayed for by the petitioner in the Writ Petition are the following: i) issue a writ of mandamus or other appropriate writ order or direction commanding the 2nd respondent Director of Public Instruction to approve the change of management of T.K.M.R.M. Vocational Higher Secondary School including change of ownership in favour of the petitioner within a time limit. ii) issue a writ of mandamus or other appropriate writ order or direction commanding the 3rd respondent District Educational Officer to approve the change of management of T.K.M.R.M. Vocational Higher Secondary School from 8.4.2008 in favour of the petitioner in terms of Rule 4 of Chapter III Kerala Education Rules as directed by the W.P.(C) No.33427 of 2010 4 Director of Public Instruction in Ext.P9 order. iii) pass such other order or direction which this Hon'ble Court may deem fit and proper to grant in the circumstances of the case.” 4. The learned Government Pleader submitted that the District Educational Officer, Thiruvalla issued a letter dated 5.10.2010 to the Director of Public Instruction. A copy of the letter was produced by the learned Government Pleader, which is taken on record. The letter dated 5.10.2010 issued by the District Educational Officer reads as follows: “ I may invite your kind attention to the reference cited and bring the following facts for your notice. A proposal for approval of change of Management with ownership of TKMRM VHS Vallana has forwarded to that office as per this office letter dated 9.11.2009. The same has returned from that office pointed out some objection viz.ET3/83580/09 DPI Ldis dated 4.1.2010. The rectified proposal forwarded to this again pertains letter dated 15.2.2010. Some additional affidavit insisted vide that office letter 6.4.2010 and those were also produced. But the same has now remitted back vide that office letter under reference directing this office W.P.(C) No.33427 of 2010 5 to consider the case under Rule 4 of Ch.III KER. But I may respectfully submit that this case involves the change of Management including change of ownership. Sri.T.K.Mohammed Ali the Manager of School demised and the property including the ownership of the school conferred to his legal heirs. The legal heirs relinquished their right upon Sri.Anwar Mohammed son of the deceased Manager. So the case be considered under the Rule 5 of Ch.III KER. In the circumstances stated above I may request to kindly reconsider the case.” 5. Under Rule 5A of Chapter III of the KER, the Director of Public Instruction is the authority to consider the application for change of Management involving change of ownership. The note to Rule 5 of Chapter III KER states that Rules 4 and 5 do not apply to change of Management involving change of ownership. Rules 4 & 5 and 5A of Chapter III KER make the position clear that in the case of change of Management involving change of ownership, the District Educational Officer has no authority to approve the change of Management and the application has to be dealt with by the Director of Public Instruction. W.P.(C) No.33427 of 2010 6 6. In the present case, the Director of Public Instruction took the view, as evidenced by Ext.P9, that as per Rule 4 of Chapter III KER, the Educational Officer is competent to approve the change of Management. The view taken in Ext.P9 is incorrect, going by the provisions of Rules 4, 5 and 5A of Chapter III of the KER. Though the petitioner has not challenged Ext.P9 order passed by the Director of Public Instruction and the petitioner prays for an order directing the District Educational Officer to expedite the proceedings, the District Educational Officer has rightly taken the view that the Director of Public Instruction is the authority to consider the application for change of Management involving change of ownership. 7. It is well settled that when a running school is transferred, section 6 of the Kerala Education Act will not apply (vide P.V.John v. Director of Public Instruction and another (ILR W.P.(C) No.33427 of 2010 7 1975 (2) Kerala 604). It is also well settled that partition is not a transfer and therefore Section 6 will not apply. [Kesava Kurup v. The State of Kerala & others(1987 (2) KLT 801), Anilatmajan v. Manoharan (1988(1) KLT 877)]. It was held in WP(C) No.28888 of 2010,that prior permission contemplated under Rule 5A of Chapter III KER is not permission before effecting the transfer but only the prior permission before the change of Management. It was held therein that an application under Rule 5A of Chapter III KER could be submitted to the Director of Public Instruction even after the transfer of a running school is made. In the facts and circumstances mentioned above, though there is no prayer to quash Ext.P9, I am inclined to quash Ext.P9 as the view taken by the Director of Public Instruction is incorrect as per law. Accordingly, Ext.P9 is quashed. The Director of Public Instruction shall consider the W.P.(C) No.33427 of 2010 8 application for change of Management involving change of ownership submitted by the petitioner in accordance with law, as expeditiously as possible and, at any rate within a period of two months from the date of receipt of a copy of the judgment, in the light of the decisions mentioned above. K.T.SANKARAN, JUDGE. cms