IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 1ST JULY 2008 / 10TH ASHADHA 1930 WA.No. 2311 of 2006() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.7848/2005 Dated 05/07/2006 .................... APPELLANTS: PETITIONERS: --------------------------------------------- 1. REV.R.VIJAYAKUMAR, MISSION HOUSE, LUTHERAN CHURCH, KANJIRAMKULAM P.O., THIRUVANANTHAPURAM. 2. J.YOVEL, REEJA BHAVAN, KALLAYAM POST, THIRUVANANTHAPURAM. BY ADV. SRI.P.R.VENKETESH RESPONDENTS: RESPONDENTS: --------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION (F) DEPARTMENT, GOVT. OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. REV.C.H.ALFRED, CALVARY LUTHERAN CHURCH, PEROORKADA, THIRUVANANTHAPURAM. 4. REV.K.STEPHANOSE, ADMINISTRATOR, INDIAN EVANGELICAL LUTHERAN CHURCH, THIRUVANANTHAPURAM SYNOD, LUTHERAN CHURCH, KURUTHEMKUDI, THANNIMOODU POST, THIRUVANANTHAPURAM DISTRICT. Kss ..2/- ...2... W.A.NO.2311/2006 5. REV.V.JEEVARAJ, ADMINISTRATOR, INDIAN EVANGELICAL LUTHERAN CHURCH, THIRUVANANTHAPURAM SYNOD, LUTHERAN CHURCH, TVM. SYNOD, MELPURAM, PACODE POST, KANYAKUMARI DISTRICT-629 168. 6. INDIAN EVANGELICAL LUTHERAN CHURCH, THIRUVANANTHAPURAM SYNOD,HAVING ITS REGD.OFFICE AT CONCORDIA HIGH SCHOOL COMPOUND,PEROORKADA,THIRUVANANTHAPURAM – 5, PRESENTLY REPRESENTED BY THE 4TH RESPONDENT APPOINTED AS ONE OF THE ADMINI- STRATORS FOR THE THIRUVANANTHAPURAM SYNOD OF INDIAN EVANGELICAL LUTHERAN CHURCH &NOTICE TO BE SERVED ON REV.K.STEPHANOSE, ADMINISTRATOR, IELC, TVM SYNOD, LUTHERAN CHURCH KURUTHEMKUDI, THANNIMOODU P.O., THIRUVANANTHAPURAM DISTRICT. BY SR.GOVERNMENT PLEADER SRI. BENNY GERVACIS – R1 & R2 ADV. SRI.P.GOPALAKRISHNAN NAIR FOR R3 SRI.D.SOMASUNDARAM SRI.ALEXANDER GEORGE SRI.DILIP MOHAN SRI.V.SANTHARAM SRI.SHIJA SHERIDAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01/07/2008 ALONG WITH W.A.NO.2686 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B. KOSHY & P.N. RAVINDRAN, JJ. ---------------------------------------------------- W.A.NO.2311 OF 2006 & W.A.NO.2686 OF 2007 ---------------------------------------------------- Dated this the 1st day of July, 2008. JUDGMENT Koshy, J: The Indian Evangelical Lutheran Church is a christian religious denomination registered under the Tamil Nadu Society Registration Act, 1975. The above church has got parishes in Tamil Nadu and southern parts of Kerala and the church is divided into three Synods. They are Nagarcoil Synod, Ampur Synod and Trivandrum Synod. The Trivandrum Synod is the corporate agency under the Kerala Education Rules having 23 schools. Both these writ appeals relate to the appointment of Manager for the schools run by the Trivandrum Synod. The Regional Deputy Director of Public Instruction by proceedings dated 16.5.1975 approved the constitution of Lutheran Schools as envisaged under Rule 2 of Chapter III K.E.R. Trivandrum District Synod is the Corporate Management in respect of 23 schools owned by the above Synod. As per the constitution, Executive Committee of the Trivandrum District Synod shall appoint the Manager from a list of at least three candidates from TDS area W.A.Nos.2311/06&2686/07 . 2 concerned. The Executive Committee has got power to remove the Manager at any time by a two third majority of its voting member. The constitution further provides that the Manager shall be appointed for a period up to three year, after which he may be re-appointed for another period not exceeding three years. He may not however, serve more than two terms consecutively. Dispute arose between two divisions in the Trivandrum Synod. Rev. C.H. Alfred was appointed as the Manager of the schools by one group and another group appointed Rev.J.Senser as the Manager. Both the groups had 5 members each in the executive committee. In view of the disputes between them, finally the government directed the District Collector to take over the Management of the schools. That action was successfully challenged before this Court. Thereafter another person was appointed by the Government as Manager. That order was also successfully challenged. Finally appointment of Rev.C.H. Alfred was approved by the government as Manager with effect from 8.6.2002 by Ext.P3 in W.P.(C). No.4153/2007 for a period of three years. As per the constitution, he can be removed only by two third of the majority of the executive committee, otherwise that appointment was valid up to 8.6.2005. Meanwhile election to the new Synod was interfered by W.A.Nos.2311/06&2686/07 . 3 the Madras High Court as per order dated 31.12.2003. The election dated 12.4.2004 to the Trivandrum Synod was set aside. The Madras High Court as per order dated 31.12.2003 directed to conduct fresh election and appoint an advocate commissioner also. Subsequently election was conducted. Finally the Madras High Court set aside that election also finding irregularities . Thereafter two Administrators named Justice K. Kanakaraj and Mr.M.S. Palaniswamy were appointed by consent after the resignation of the first administrator. After the expiry of the term of C.H. Alfred on 8.6.1985, the Administrators appointed Rev. K.Stephanose and Rev.Jeevaraj as Managers as per proceedings dated 28.10.2005. Later they resigned in December 2005 and thereafter again Rev.C.H. Alfred was appointed as Manager by Ext.P7 dated 27.12.2005 with effect from the expiry of the original term of appointment. By Ext.P8, a request was made by the Administrators, for approval of appointment of Rev. C.H. Alfred 'until further orders'. By Ext.P9, Rev.C.H. Alfred's appointment was approved for the second term with effect from 8..6.2005 to 7.6.2008. Meanwhile in 2004, after the election, Rev. R. Vijaya Kumar was appointed as the Manager by the executive committee of the Synod. When the proposal for approval of the same was pending, W.A.Nos.2311/06&2686/07 . 4 election to the Synod was set aside. Rev. C.H. Alfred's appointment from 8.6.2002 to 8.6.2005 was approved finally by the authorities. That was challenged by Rev. Vijayakumar in W.P. (C).No.7848/2005. The learned Single Judge dismissed the above writ petition. Hence W.A.No.2311/2006 was filed. The main contention of the above petitioners is that they were appointed as Managers by the executive committee of the Synod. Even though election of that committee was set aside by the Madras High Court, Madras High Court's decision was reversed by the Supreme Court. Rev.C.H. Alfred was for a term of three years from 8.6.2002. We are of the opinion that without removing him from the post of Manager, Rev.R. Vijayakumar cannot be appointed in 2004 and a Manager can be appointed only from the forenoon of 8.6.2005. Admittedly Rev.R. Vijayakumar has no claim for appointment in 2002. Rev.C.H. Alfred, who was the Manager from 2002 can be removed only by a resolution supporting 2/3rd of members of the Executive committee of the Constitution. He was not removed. Decision of the Hon'ble Supreme Court came only on 14.9.2006 setting aside the order of the Madras High Court. But with out removing the duly appointed Managers, a new Manager cannot be appointed. We agree with the decision of the learned Single Judge W.A.Nos.2311/06&2686/07 . 5 with respect to the appointment of Rev.C.H. Alfred as Manager with effect from 8.6.2002 to 8.6.2005. 2. It is vehemently contended that the 2nd term of appointment of Rev.C.H. Alfred was made by the administrators from 8.6.2005 until further orders is illegal as administrators have no power to appoint a Manager. It is further submitted that in view of the Supreme Court decision, election of the Synod, 2004 was approved and therefore appointment of Rev.C.H. Alfred by Ext.P7 by the Administrators for the second time cannot be accepted. We have already held that appointment of Rev.R. Vijayakumar in 2004 during the tenure of Rev.C.H. Alfred cannot be made as Rev.C.H. Alfred's appointment was not cancelled and that, that was valid up to 2005. Apart from the above, for understanding the powers of the administrators, we may have to refer to the decision of the Madras High Court. The Administrator was appointed by the Madras High Court by agreed order and with regard to the Trivandrum Synod, the following direction was given: “The administration, management and financial affairs of the Trivandrum synod shall be controlled by Rev. Stephanose and Rev.Jeevaraj as interim administrators who shall exercise their control over the institutions within the jurisdiction W.A.Nos.2311/06&2686/07 . 6 jointly”. But the above administrators resigned. Thereafter another order was passed by Ext.P11, wherein operative portion reads as follows: “(i) As unanimously agreed by the counsel appearing for all the parties, we appoint Mr.Justice J. Kanakaraj, a retired Judge of this Court, who also incidentally happens to be a believer in Church activities, as Chief Administrator to have an effective control in the matter of administration of educational institutions as well as hospitals and properties belonging to the IELC Apex Body and three synods. (ii). We also appoint Mr. M.S.Palaniswamy, Advocate as Associate Administrator, who shall associate the Chief Administrator in the matter of registration of Societies as well as other administrative and management activities referred to above. (iii). The interim Administrators already appointed for the IELC Apex Body and three Synods by order dated 22.12.2004 shall henceforth act as Advisers and they shall extend their full co-operation to the Chief Administrator and the Associate Administrator. (iv) All financial transactions pertaining to the educational and medical institutions, including the settlement of terminal benefits to retired teachers and other staff, by the Correspondents/Managers shall henceforth be countersigned by the Associate Administrator, W.A.Nos.2311/06&2686/07 . 7 with the prior approval of the Chief Administrator. In such matters, the Associate Administrator is at liberty to take the advice of the Advisers, if necessary. (v) The Registration of Societies shall be completed within six months from the date of receipt of copy of the order. (vi) After Registration of Societies, the Associate Administrator with the approval of the Chief Administrator shall finalise the list of eligible members of the Societies and submit before this Court a proposal and schedule for conducting election afresh for the IELC, Apex Body and three Synods. (vii) The entire properties, both movable and immovable, either belong to educational institutionals or medical institutions specifically that of the schools, hospitals or any other charitable institutions of the defunct societies shall continue to remain with the defunct societies. (viii) The Chief Administrator and the Associate Administrators shall henceforth administer the same directly, notwithstanding the illegal constitution of societies by some third parties with a view to usurp the properties of defunct societies, which is opposed to the provisions of the Societies Registration Act. (xi) The Chief Administrator and the Associate Administrator shall take effective steps to cancel the registration of such illegal societies formed with mala fide intention to usurp the properties of the defunct societies and to take criminal action and also for damages against the persons concerned in the manner known to law. W.A.Nos.2311/06&2686/07 . 8 (x) In such case, the statutory authorities, police and the Courts concerned shall expeditiously investigate and dispose of the matter, of course, after hearing the parties concerned, in any event, within a period of six months from the date of such complaint, in order to prevent any further damage to the properties of the defunct societies. (xi) The existing vacancies which arose or will arise due to the retirement of teachers in educational institutions as well as staff members in other establishments shall be filled up by appointing qualified persons by the Associate Administrator in consultation with the respective Correspondents/Managers of the institutions concerned, of course, with the prior approval of the Chief Administrator and also on the advice of Advisers, if necessary, giving preference to the members of respective congregations in such appointments. It is made clear that such appointments shall be subject to the confirmation of this Court.” 3. A reading of the above order would show that the administrators have to look after the general administrations and it cannot be stated that daily routine of 43 schools of 3 Synods, apart from other establishments of the church, can be managed by them and they can appoint managers in the absence of valid Synod. The even after the lapse of years of the selection. Hon'ble Supreme Court though interfered in the order of the Madras High W.A.Nos.2311/06&2686/07 . 9 Court did not presume that election held in 2004 to Trivandrum Synod was valid noticing that even if it is valid, there term has expired but several directions were issued for interim administration. The major directions relevant in this case are as follows: “As admittedly the term in respect of two Synods, namely, Trivandrum and Nagercoil Synod has already expired and that of Ambur Synod would expire in December, 2006 and that of the Church Council on 7.6.2007, this Court should not interfere with the impugned judgment and may direct holding of elections under the supervision of the Administrators.” 4. So, with regard to the Trivandrum Synod, the term of Trivandrum synod already expired. We also notice that the Apex Court did not approve the elections in 2004 but only stated that by interim orders it should not have been set aside as suit is still pending. As the Trivandrum synod's term was already expired, the Apex Court further issued the following directions: It stands admitted that the tenure of the elected members in respect of Trivandrum and Nagercoil Synods being two years is over. However, the said tenure is yet to expire in respect of Ambur Synod, the tenure whereof is three years. The tenure of the Church Council again is of three years. W.A.Nos.2311/06&2686/07 . 10 It expires on 6.6.2007. We, therefore, are of the opinion that subject to any other or further order that may be passed by any forum having appropriate jurisdiction in regard thereto, the elected members in respect of Ambur Synod and Church Council may take over their respective activities from the Administrators. The Administrators shall, however, continue to oversee the functions of the Church Council and Ambur Synod. The elections in respect of the Nagercoil Synod would furthermore be conducted under the supervision of the learned Administrators to see that the elections of the two Synods are held as expeditiously as possible. The Chartered Accountant appointed by the learned Administrators shall continue to function and shall submit a report before the Church Council with a copy to the learned Administrators. The proceeding, if any, initiated for setting aside election of any of the office bearers of the council of Ambur Synod, shall, however, continue and may be disposed of expeditiously”. Therefore administrators were not removed. Admittedly, the church council has no power to appoint the managers. Taking all these aspects and considering the fact that schools cannot be run without managers, we are of the opinion that appointment of Rev.C.H. Alfred with effect from 8.6.2005 until further orders by administrators cannot be faulted. 5. Admittedly, there were further developments. As directed by the Hon'ble Supreme Court election was conducted in 2007 and W.A.Nos.2311/06&2686/07 . 11 new Synod has been elected and executive council has also been elected. That executive council has appointed Rev. R.Vijayakumar as the Manager with effect from 2.7.2007. The new elected committee came into force with effect from 26.6.2007. Rev.R. Vijayakumar was appointed in the meeting held on 2.7.2007. It is interesting to note that he was also appointed from 2.7.2007 for a period of three years. The order approving appointment was produced as Annexure-II in W.A.No.2686/2007. The DPI's order reads as follows: “Therefore the elections and appointment of Rev.R.Vijayakumar as Manager of Lutheran Schools is legally valid. Hence the proposal submitted by the IELC, Thiruvananthapuram synod for approval of Rev.R.Vijayakumar as Manager for 3 years from 2.7.2007 is allowed. And the appointment of Rev.R. Vijayakumar as Manager is approved for 3 years with effect from 2.7.2007”. It shows that elected council did not take into account seriously the alleged earlier appointment of Rev.R. Vijayakumar as he was appointed with effect only from 2.7.2007 for a period of three years as a manager. Rev.C.H Alfred was appointed from 8.6.2005 until further orders though it was approved for three years by the W.A.Nos.2311/06&2686/07 . 12 authorities. Rev.R. Vijayakumar's appointment by elected council will prevail with effect from 2.7.2007. It is submitted by the learned counsel for Rev.C.H. Alfred that he filed a revision application against approval of appointment of Rev.R. Vijayakumar. So Rev.C.H Alfred's appointment as Manager was approved by the government with effect from 8.6.2002 to 8.6.2005. His appointment is also valid from 8.6.2005 to 1.7.2007. We are not expressing any opinion regarding correctness of 2007 election or merits of the revision petition filed by Rev.C.H. Alfred challenging the DPI's order. But DPI's order approving Rev.R. Vijayakumar as Manager with effect from 1.7.2007 is not under challenge in this case. With regard to teachers appointment, we are of the opinion that schools cannot be run without qualified teachers and if teachers appointed are qualified in the approved vacancies , their appointment has to be approved. We have already held that appointment of Rev.C.H. Alfred was correct. Rev.R.Vijayakumar's appointment was approved only with effect from 2.7.2007 by order dated 19.11.2007. If appointments are made to vacancies by Rev.C.H. Alfred before 19.11.2007 by applying defacto doctrine,in this connection, we refer to the decisions of this Court in Padmanabhan Nambiar v. Government of Kerala (1997 (2) KLT W.A.Nos.2311/06&2686/07 . 13 725) The Manager, St. Mary's H.S. v. Beji Abraham (2002 (1) KLT 406, Somanatha Pillai v. State of Kerala (2007 (1) KLT 127) & Dr.A.R. Sircar v. State of U.P. & others (1993 Suple.(2) SCC 734). But even by application of defacto doctrine, Rev.C.H. Alfred cannot appoint staffs or teachers after the date of approval of appointment of Rev.R. Vijayakumar by Annexure II order dated 19.11.2007. Hence, appointment of Rev.R.Vijayakumar as Manager with effect from 2.7.2007 by the executive committee cannot be set aside. In any event, even applying defacto doctrine Rev.C.H. Alfred cannot function as Manager after 19.11.2007, the date of approval of appointment of Rev. R. Vijayakumar by the DPI. W.A.No.2311 of 2006 is dismissed of and W.A.No.2686 of 2007 is partly allowed. J.B. KOSHY, JUDGE. P.N. RAVINDRAN, JUDGE. cl W.A.Nos.2311/06&2686/07 . 14