IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 WP(C).No. 15227 of 2008(K) ------------------------------------- PETITIONER(S): ------------------------ N.C.T.VIJAYAKUMARAN NAMBIAR AGED 65 YEARS, S/O.KUNJUNNI NAMBIAR, MANAGER NASRATHUL ISLAM MADRASA L.P.S., POST KARIYAD SOUTH TELLICHERRY TALUK, KANNUR DISTRICT, RESIDING AT 'JAYAKALA', KARIYAD SOUTH P.O., THALASSERY BY ADV. MR.C.P.PEETHAMBARAN RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, GENERAL EDUCATION (P) DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCITON THIRUVANANTHAPURAM. 3. THE ASSISTANT EDUCATIONAL OFFICER CHOKLI, KANNUR DISTRICT 4. K.BALAKRISHNAN, ASSISTANT TEACHER KITANHI U.P.SCHOOL, KITANHI P.O. THALASSERY TALUK 5. SUDHAKARAN S., ASSISTANT TEACHER KITANHI U.P.SCHOOL, KITANHI P.O. THALASSERY TALUK. 6. N.C.T. MADHUSOODANAN NAMBIAR MANAGER, KITANHI U.P.SCHOOL, ANIYARAN POST KITANHI, TELLICHERRY TALUK, PIN-670 072 W.P.(C) NO.15227/2008 ADDL. R7 IS IMPLEADED 7. K.PRASANNA, HM-IN-CHARGE, NAASAATHUL ISLAM MADRASSA LPS, POST KARIYAD SOUTH, TELLICHERRY TALUK, KANNUR DIST., RESIDNIG AT VARADA, KARIYAD SOUTH POST, KANNUR DIST. PIN 673 316. ADDL. R7 IS IMPLEADED AS PER ORDER DTD. 29.6.09 IN IA 7420/09. R1 TO R3 BY GOVT. PLEADER MR.MUHAMOOD T.T. R4 & R5 BY ADVS. MR.BABU JOSEPH KURUVATHAZHA MR.C.P.SIVADASAN NAIR FOR R4 R6 BY MR.C.A.CHACKO R7 BY MR.V.V.NANDAGOPAL NAMBIAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/08/2009, ALONG WITH WPC NO. 15349 OF 2008 WPC NO. 23943 OF 2008 THE COURT ON 14/08/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.15227/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ANNUAL INSPECTION REPORT OF THE PETITIONER'S SCHOOL. P2:- COPY OF THE ANNUAL INSPECTION REPORT OF THE 6TH RESPONDENT'S SCHOOL. P3:- COPY OF THE ORDER DTD. 13.11.02 OF THE 3RD RESPONDENT. P4:- COPY OF THE APPEAL MEMORANDUM SUBMITTED BY THE 4TH AND 5TH RESPONDENTS JOINTLY DTD. 3.12.05. P5:- COPY OF THE HEARING NOTICE DTD. 4.10.06 OF THE 2ND RESPONDENT. P6:- COPY OF THE ARGUMENT NOTES DTD. 25.10.06 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P7:- COPY OF THE SAID ORDER DTD. 1.5.07 OF THE 3RD RESPONDENT. P8:- COPY OF THE ORDER DTD. 25.4.08 OF THE 2ND RESPONDENT. P9:- COPY OF THE LETTER DTD. 5.5.08 OF THE 4TH RESPONDENT. RESPONDENT'S EXHIBITS R3(a):- COPY OF THE ORDER NO.C-2852/2003/D.DIS DTD. 13.11.03. R3(b):- COPY OF THE ORDER NO.B-602/2002 K.DIS. DTD. 3.6.03. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 15227/2008-K, 15349/2008-B & 23943/2008-A - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of August, 2009. JUDGMENT In W.P.(C) Nos.15227/2008 & 15349/2008, the Manager of the school is the petitioner and in W.P.(C) No.23943/2008 the petitioner is the teacher appointed by the Manager who is awaiting approval. Since common questions arise for decision, they are disposed of by a common judgment. The short history of the cases are the following: W.P.(C) No.15349/2008 2. The father of the Manager, late Shri Kunjunni Nambiar was the Manager of three schools, viz. Kariyad Nambiars U.P. School, Nasrathul Islam Madrassa L.P. School and Kitanhi U.P. School. He died in the year 1961. Out of the three schools, the Kariyad Nambirs U.P. School was transferred to his brother Kunjiraman Nambiar. The other two schools devolved upon the petitioner, his mother and 6th respondent, his brother. The partition of the properties were effected in the year 1969. As per the partition deed, Nasarathul Islam Madrassa L.P. School was allotted to the petitioner and Kitanhi U.P. School was allotted to the 6th respondent wpc 15227/08, 15349/08 & 23943/08 2 brother. Both of them were working as teachers in the schools and hence the mother was nominated as the Manager of the individual schools. They were being treated as independent individual schools. The mother died in the year 1996 and thereafter the management of the schools were transferred in the name of the petitioner and 6th respondent respectively as they had retired from service in the meanwhile. 3. A leave vacancy occurred in the petitioner’s school on 1.6.1982 when one Shri K.C. Aboobacker , Full Time Arabic Teacher went on leave. From 1.6.1982 onwards Shri C. Moosa who is the petitioner in W.P.(C) No.23943/2008 was appointed and he continued there till 23.3.1997 in the leave vacancy. He was appointed on 2.6.2003 in the retirement vacancy of Shri K.C. Aboobacker. Ext.P3 is the said order. 4. The 5th respondent herein was working as an Arabic Teacher in 6th respondent’s school and was placed under protection with effect from 5.7.1992. He raised a claim for appointment in the leave vacancy to which Shri Moosa was appointed in the year 2003. Thereafter, the 4th respondent passed Ext.P5 order rejecting the proposal for approval recognizing the right of the 5th respondent. This was affirmed in appeal and in revision by the Government. These orders are under challenge in W.P.(C) wpc 15227/08, 15349/08 & 23943/08 3 No.15349/2008. W.P.(C) No.15227/2008 5. In W.P.(C) No.15227/2008, the order under challenge is one whereby respondents 4 and 5 who are working in the 6th respondent’s school as Assistant Teachers are ordered to be granted protection under Rules 43, 51A and 51B of the Rules, by recognizing both schools as a single unit. 6. Learned counsel for the petitioner submitted that going by Exts.P1 and P2 Annual Inspection Reports, while the mother was the Manager, it can be seen that both schools have been treated as individual management only. The mother was acting as Manager only because of the fact that the petitioner and 6th respondent were working as teachers. There was no common seniority list at any point of time. The seniormost teachers in the respective schools were being appointed as Headmasters and their appointments have been approved by the department. Instances are pointed out in para 10 of the writ petition. After the partition of the respective schools, they are under different managements. It is therefore submitted that the 5th respondent has no claim in any of the vacancies which may arise in the petitioner’s school. Reliance is placed on various decision of this wpc 15227/08, 15349/08 & 23943/08 4 court viz. P.V. John v. Director of Public Instruction (ILR 1975 (2) Ker.605), Thankamma Kunjamma and others v. Krishnan Unnithan and others (ILR 1992 (2) Ker. 343), P.G. Madhavan v. P.K. Santhakumari Amma (1994 (2) KLJ 370) and Kunhikrishnan Adiyodi v. Ramachandran (2003 (2) KLT 488). 7. Learned counsel appearing for the 5th respondent pointed out that the 5th respondent became a protected teacher in the year 1992. At the time when the 5th respondent became a protected teacher, the mother was the Manager of these two schools. Therefore, he had a right to be accommodated when a regular vacancy arose. The partition of the properties will not affect his rights. It is therefore submitted that the orders passed are not liable to be interfered with. This argument is supported by the learned Govt. Pleader also. 8. In P.V. John's case (ILR 1975 (2) Ker.604), an identical situation was considered and the legal position with reference to the relevant rules have been examined in detail. The facts of the said case show that the father of the petitioner therein had three aided schools and after his death there was a partition, whereby one of the schools was allotted to the petitioner in the writ petition. When the transfer of management was sought for, the wpc 15227/08, 15349/08 & 23943/08 5 Director of Public Instruction imposed certain conditions for safeguarding the interest of the staff and ultimately, it was ordered that till the managers agree with the reasonable demand of the staff to safeguard their interest in a just and equitable manner, the change of management cannot be allowed. The condition that was sought to be imposed is that the common seniority list will continue and it has no connection with the date of partition. After examining Section 6 of the Kerala Education Act and Rule 5A of Chapter III K.E.R., it was held thus in para 6: “As far as the interests of the staff are concerned, protection can be there only to the extent that is provided by the Act and the Rules. By a transfer like this, the staff cannot be denied their valid rights as teachers of an aided school. But it cannot be forgotten that the effect of the transfer that has resulted by the partition is that every one of the three schools becomes separate institutions. In that case, the staff in one of the schools cannot in any way insist that he or she should be given the option to be in the staff of any of the other two schools. Even though as per the common seniority list approved prior to the partition, a member of the staff in any one of the schools was senior to another member of the staff in any one of the other two schools, he or she cannot claim any superior right because they have become members of the staff of separate schools. “The interests of the staff” mentioned in rule 5A of Chapter III of the Rules can only be their interests as members of the staff of the three wpc 15227/08, 15349/08 & 23943/08 6 separate schools. As members of the staff of the three separate schools they cannot insist on the continuance of the common seniority list. The common seniority list has disappeared the moment the schools were partitioned. The Director of Public Instruction cannot withhold approval to the change of management in question for the reasons stated in Ext.P4.” This court clearly laid down the legal position that after partition, the institutions become separate and the staff in one of the schools cannot in any way insist that he or she should be given the option to be in the staff of any of the other two schools. It was declared that the common seniority list has disappeared the moment the schools were partitioned. 9. Again, an identical question was examined in P.G. Madhavan's case (1994 (2) KLJ 370). The facts detailed in para 2 of the judgment show that three schools were established by one Shri Govindan and after his death, the ownership of the schools with all their assets stood vested in his widow Gowri and children. The mother became the manager based on a registered agreement executed between all the co-owners. Later, the first respondent was appointed as an Upper Primary School Assistant in the U.P. School in the year 1973. She was thrown out from the school due to division fall and was working as a protected teacher in another Government wpc 15227/08, 15349/08 & 23943/08 7 school till the year 1991 and in the year 1991 she rejoined back in the U.P. School. Meanwhile, in 1984 the management of the school was changed with permission of the Director of Public Instruction, as a going concern, in favour of one of the grand daughters. Later, when a vacancy of H.S.A. arose in the High School, the teacher raised claim for absorption. In fact, there was a transfer of management of the said school also in favour of the appellant in the appeal. The previous manager had sworn to an affidavit also recognising the right of the teacher working as UPSA to be absorbed in the High School under her management, when a vacancy arises there. The question arose whether the said teacher has got a right to be appointed as an H.S.A. in the High School, or a fresh hand can be appointed. The Division Bench considered the dictum laid down in P.V. John's case (ILR 1975 (2) Ker. 604) and approved the findings rendered therein. It was held thus in para 5: “Since the change approved as per Ext.P4(c) order is a change of management involving change of ownership of the U.P. School in question, we are of the view that the principles laid down in John's case (ILR 1975 (2) Ker. 604) would squarely apply to the facts of the case on hand and on and after 16.5.1984 the two schools have to be treated as totally independent and separate institutions. The members of the staff of the one school cannot on that ground alone wpc 15227/08, 15349/08 & 23943/08 8 claim any right under the Act and Rules in respect of the other School or as against the owner, manager and staff of the other school on and after approval of such change under Rule 5A of Chapter III of the KER. In the circumstances, we are of the view that the first respondent who is a member of the staff of the U.P. School alone cannot lay any claim to be appointed to the vacancy which arose in the High School on 31.3.1993 under Rule 43 of Chapter XIV A she being a teacher in a separate school under a different educational agency on and after 16.5.1984.” Therefore, it is clear that the members of staff of one school cannot claim any right in respect of other school or against the Manager and staff of the other school after approval of such change under Rule 5A of Chapter III K.E.R. The contention based on the affidavit was also negatived. 10. Again, in the light of partition of the properties, it was held thus in Kunhikrishnan Adiyodi's case (2003 (2) KLT 488), while considering the effect of Rule 5A of Chapter III K.E.R.: “R.5A provides that the Director of Public Instruction should grant permission for change of management, including change of ownership, unless the grant of such permission will, in his opinion, adversely affect the working of the institution. However, it has to be assumed that this discretion is limited and in the case of a change brought about by a partition, it may have to be automatic, as otherwise it will trench upon the rights of the Educational Agency.” wpc 15227/08, 15349/08 & 23943/08 9 11. The factual situation that arises in this case show that there were three schools which were managed by the father. The schools were partitioned in the year 1969 and the petitioner and 6th respondent have been allotted the respective schools and one of the brothers of the father was allotted the remaining school. The mother was appointed as the Manager in respect of the two schools allotted to the petitioner and the 6th respondent, as they were having disqualification. There is nothing to show that there was a common seniority list in respect of these two schools. Going by Exts.P1 and P2 also, viz. the copies of the annual inspection reports of the two schools, in the year 1993, they are treated as individual management, even while the mother was the Manager. The 5th respondent was appointed in the school managed by the 6th respondent. At no point of time the department had objected to the appointment of Headmasters in these two schools and they were being appointed based on the seniority in the respective schools. Therefore, the question is whether the right, if any, of the 5th respondent recognized by the various orders impugned, can be sustained. 12. Going by the respective orders issued by the educational authorities and the Government with regard to the approval of appointment of the petitioner in W.P.(C) No.23943/2008, mainly the view taken is that wpc 15227/08, 15349/08 & 23943/08 10 the 5th respondent being a protected teacher in Kitanhi U.P. School, he is a claimant in terms of Rule 5A(3) of Chapter III K.E.R. The fact that these two schools are being run under different managements since 14.3.1996, is mentioned in Ext.P6 by the District Educational Officer and by the Additional Director of Public Instruction in Ext.P7. Going by the admitted facts, the partition was in the year 1969 and the mother was nominated as Manager only because of the disqualification of petitioner and 6th respondent. These two schools were treated as separate institutions only. No evidence is there to show that they were treated as one unit at any point of time for any purpose whatsoever. In that view of the matter, the view taken that since the schools were under a single management, the 5th respondent is bound to be absorbed, cannot be accepted. It is clear that the effect of partition between the sharers and the legal effect of the same as declared by this court in P.V. John's case (ILR 1975 (2) Ker.604) and in the later decision in P.G. Madhavan's case (1994 (2) KLJ 37) have not been borne in mind by the respective authorities. It is true that Rule 5A(3) of Chapter III K.E.R. specifies that “in the case of change of management of a school involving change of ownership the new Manager of a corporate or an individual Educational Agency, shall be bound to absorb any member wpc 15227/08, 15349/08 & 23943/08 11 who is a claimant under Rule 51A of Chapter XIV A or is eligible for protection belonging to teaching and non-teaching staff of any school of the transferor manager, against the vacancies that may arise in the school.” How the same will help the 5th respondent herein to sustain his claim, has to be examined in view of the legal principles stated by this court in the above said decisions. It has clearly declared in P.V. John's case (ILR 1975 (2) Ker.604) that “the interest of the staff mentioned in Rule 5A of Chapter III K.E.R. can only be their interests as members of the staff of the three separate schools. As members of the staff of the separate schools they cannot insist on the continuance of the common seniority list. The common seniority list has disappeared the moment the schools were partitioned.” Herein, there was no common seniority list, admittedly. Therefore, the 5th respondent cannot rest his claim under Rule 5A(3) as contended by the learned counsel for the 5th respondent. The above view is further fortified by the Division Bench in para 5 of the judgment in P.G. Madhavan's case (1994 (2) KLJ 370), pointing out that the members of the staff of the one school cannot on that ground alone claim any right under the Act and Rules in respect of the other school or as against the owner, manager and staff of the other school on and after approval of such change under Rule 5A of wpc 15227/08, 15349/08 & 23943/08 12 Chapter III of the K.E.R. Therefore, the stipulations in the respective orders while approving the change of managership, cannot help the 5th respondent to seek any appointment in the vacancy that arose, to which the petitioner in W.P.(C) No.23943/2008 was appointed. 13. It is clear from the pleadings that the vacancy occurred only in the year 2003 which was evidently after the transfer of management was effected also. In that view of the matter also and as is clear from Exts.P1 and P2 that the managements were treated and approved as individual managements, the plea raised by the 5th respondent cannot be sustained. 14. A related issue arises in W.P.(C) No.15227/2008. Therein, respondents 4 and 5 are teachers of Kitanhi U.P. School of which the 6th respondent is the Manager. The vacancy of the Headmaster arose when when one Shri C. Thomas Mathew retired from service and one Shri V.P. Gangadharan was promoted in the retirement vacancy, as per order dated 1.5.2007. In fact, after approval of the transfer of management, it appears that respondents 4 and 5 approached the first respondent in the writ petition filing a complaint styled as an appeal, challenging the said order. The same is produced as Ext.P4 in the said writ petition. The petitioner had filed Ext.P6 written argument notes also in the matter. One of the points raised is wpc 15227/08, 15349/08 & 23943/08 13 that the appeal itself was highly belated, since the order approving the management was dated 4.8.2003, whereas respondents 4 and 5 raised their challenge only by 3.12.2005. The challenge herein is against the order Ext.P8, by which the first respondent held that the schools should be treated as a single unit till the managements were approved in favour of petitioner and the 6th respondent and the Manager should recognise the right for promotion to respondents 4 and 5 as per the common seniority list. A reading of Ext.P8 order itself will show that there was no common seniority list. The reason stated in Ext.P8 is that the respective managements should protect the interest of the staff like the rights available to them under Rules 43, 51A and 51B of Chapter XIV-A K.E.R. In fact, in para 3 of the counter affidavit filed, it is clearly admitted that as per the partition deed executed in the year 1969, the petitioner became the owner of the land in which the school building Nasrathul Islam Madrasa L.P. School is situated and the 6th respondent became the owner of the school and landed property in which Kitanhi U.P. school is situated. It is also admitted that on the basis of the said deed, the mother of petitioner and 6th respondent were functioning as the Manager. 14. In the light of the legal position already discussed, the order wpc 15227/08, 15349/08 & 23943/08 14 Ext.P8 also cannot be sustained. Therefore, the writ petitions are allowed. The impugned orders, viz. Ext.P8 in W.P.(C) No.15227/2008, Exts.P5, P6, P7 and P10 in W.P.(C) No.15349/2008 and Exts.P3 to P6 in W.P.(C) No.23943/2008 are quashed. There will be a direction to approve the appointment of the petitioner in W.P.(C) No.23943/2008 as Arabic Teacher with effect from 2.6.2003 and to pay all consequential monetary benefits including salary to him from 2.6.2003. No costs. (T.R. Ramachandran Nair, Judge.) kav/