IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 WP(C).No. 14935 of 2009(J) ------------------------------- PETITIONERS: ---------------- 1. DEVARAJ BANGERA, PRESIDENT, C.S.I.KARNATAKA SOUTHERN DIOCESE EDUCATION SOCIETY (R), BALMATTA, MANGALORE-2 AND MANAGER UBMC ALP SCHOOL, HOSDURG, KASARAGOD DISTRICT. 2. KARNATAKA SOUTHERN DIOCESE EDUCATION SOCIETY, REPRESENTED BY ITS SECRETARY SASHIPAL SHETTIAN, CSI DIOCESAN OFFICE BALMATTA, MANGALORE. BY MR.M.RAMESH CHANDER, ADVOCATE. RESPONDENTS: ------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, TRIVANDRUM. 2. DIRECTOR OF PUBLIC INSTRUCTION, TRIVANDRUM. 3. ASSISTANT EDUCATIONAL OFFICER, HOSDURG. 4. DR.SANJEEV M.LAZER, S/O.LATE DR.A.M.LAZAR, RESIDING AT “PASS OVER”, KOVVALPALLY P.O, KANHANGAD VILLAGE, HOSDURG TALUK. BY MR.SURESH KUMAR KODOTH, ADVOCATE, FOR R4 MR. MUHAMMOOD T.T., GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.14935/2009 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF ORDER No.C/266/07 DTD. 18.3.09 ISSUED BY R3. EXT. P2 : COPY OF APPEAL FILED BEFORE THE R2 DTD. 3.4.09. EXT. P3 : COPY OF THE STAY PETITION. EXT. P4 : COPY OF THE PETITION BEFORE the MINISTER FOR EDUCATION DTD. 13.4.09. EXT. P5 : COPY OF ORDER OF R2 No.24171/F2/09 DTD. 29.4.09. EXT. P6 : COPY OF JUDGMENT IN W.P.(C) 13326/09 DTD. 8.5.09. 4TH RESPONDENT'S EXHIBITS: EXT. R4(a) : COPY OF JUDGMENT DTD. 8.1.08 IN O.S. No.27/07 OF THE MUNSIFF'S COURT, HOSDURG. EXT. R4(b) : COPY OF JUDGMENT DTD. 2.7.08 IN W.P.(C) No.4721/2007. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.14935 OF 2009 --------------------------------------- Dated this the 11th day of June, 2009. J U D G M E N T The challenge in this writ petition is against Exhibit P5 order passed by the Government. As per Exhibit P5, the Government directed the Director of Public Instruction to dispose of an appeal pending before him. The Government also granted stay of the order passed by the Deputy Director of Education till the matter is heard and disposed of by the Director of Public Instruction. 2. Heard the learned counsel for the petitioner and the learned counsel appearing for the 4th respondent and the learned Government Pleader. 3. The short facts necessary for the disposal of the writ petition are the following: The first petitioner is the President of Karnataka Southern Diocese Education Society and the second petitioner is the Secretary, Karnataka Southern Diocese Education Society. They are the Educational Agency of UBMC ALP School, Hosdurg. The W.P.(C) No.14935/2009 2 4th respondent was appointed as the Manager of the school in the year 2004. Subsequently, the society had removed him as the Manager of the school by a resolution of the governing council in the year 2007. The said resolution was challenged in O.S.No.27/07 of the Munsiff Court, Hosdurg. The suit was decreed by the learned Munsiff and the society was allowed to appoint a new Manager in accordance with the provisions contained in the bye law. 4. It is the case of the petitioner that accordingly a meeting of the general body was conducted on 25.06.2008 and the society has resolved to remove the 4th respondent from the post of Manager of the school to appoint the first petitioner as the Manager. The 4th respondent filed W.P.(C) No.4721/2007 against the appointment of the petitioner as the Manager of the school. This Court directed the Assistant Educational Officer to consider the representation submitted by the 4th respondent after hearing all affected parties. Ultimately, an order was passed on 18.03.2009 whereby the first petitioner was approved as the Manager of the school. Challenging the same, the 4th respondent W.P.(C) No.14935/2009 3 filed an appeal before the Director of Public Instruction on 03.04.2009. It is also stated that the 4th respondent had filed a suit as O.S.No.137/09 before the Munsiff court and obtained an injunction against the petitioners from taking over administration and management of the school. That was challenged in C.M.A.No.11/2009 before the Sub Court, Hosdurg and the order of the Munsiff court was suspended by the Sub Court on 08.04.2009. The order of Sub Court was challenged before this Court by the 4th respondent in W.P.(C) No.13738/2009, which has now been disposed of directing the appellate court to dispose of the C.M.A. 5. Exhibit P1 is the order passed by the Assistant Educational Officer approving the appointment of the first petitioner as Manager. The 4th respondent had earlier approached this Court by filing W.P.(C) No.13326/2009, which was disposed of by Exhibit P6 judgment dated 08.05.2009 whereby a direction was issued to dispose of the appeal pending before the Director of Public Instruction within a period of two months from the date of receipt of a copy of the judgment, after hearing the petitioner W.P.(C) No.14935/2009 4 therein and the 3rd respondent therein. There was a direction to dispose of the stay petition which was filed before the Director of Public Instruction seeking for stay of the order passed by the Assistant Educational Officer. 6. The petitioners were surprised to receive Exhibit P5 order dated 29.04.2009 whereby on a representation submitted by the 4th respondent, the Government has passed an order of stay with a direction to dispose of the appeal by the Director of Public Instruction. 7. Learned counsel for the petitioners submitted that in the light of Exhibit P6 judgment of this Court and in the light of the fact that the Government was not seized of the appeal from Exhibit P1, it was not proper for the Government to pass an order of stay as the Director of Public Instruction was actually seized of the matter. 8. Learned counsel appearing for the 4th respondent submitted that apart from filing an appeal before the Director of Public Instruction, a representation was also filed before the Government and the order Exhibit P5 was passed by the W.P.(C) No.14935/2009 5 Government on the said representation. 9. Clearly, the order passed by the Government as per Exhibit P5 cannot be sustained. The 4th respondent has filed an appeal against Exhibit P1 before the Director of Public Instruction along with stay petition. By Exhibit P6 judgment, this Court had directed the Director of Public Instruction to dispose of the stay petition within a period of three weeks. Therefore, the 4th respondent was not right in moving the Government seeking an order of stay of Exhibit P1. In that view of the matter, Exhibit P5 cannot be sustained. Exhibit P5 is quashed. It is pointed out by the learned counsel appearing for the 4th respondent, after referring to the contentions raised in the counter affidavit, that the order passed by the lower authority cannot be sustained. That is a matter entirely for the Director of Public Instruction to consider and at this stage this Court is not called upon to decide any of the disputed question that has arisen between the parties. Since the matter is pending before the Director of Public Instruction, this Court will not be justified in taking a decision finally on the said dispute also. It is also W.P.(C) No.14935/2009 6 pointed out that the Director of Public Instruction has already heard the stay petition. The Director of Public Instruction will therefore pass appropriate orders on the stay petition in terms of Exhibit P6 judgment. This writ petition is disposed of as above. T.R. RAMACHANDRAN NAIR JUDGE smp