IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 24TH FEBRUARY 2009 / 5TH PHALGUNA 1930 WA.No. 86 of 2002(D) -------------------- AGAINST THE JUDGEMENT IN OP.25139/2001 Dated 21/12/2001 .................... APPELLANT(S): RESPONDENTS 1 & 2 ------------------------------- 1. REV. FR. C.K.ISSAC, VICAR, ST. MARY'S CHURCH, UMMINIKKUNNU, POTHANICADU, ERNAKULAM DISTRICT. 2. JAMES VARGHESE, NEDUMCHALIL HOUSE, VAZHAPPALLY, MUVATTUPUZHA. BY ADV. SRI.B.G.BHASKAR SRI.BIJU ABRAHAM SRI.K.K.JOHN RESPONDENT(S): PETITIONERS & RESPONDENTS 3 & 4 IN THE OP -------------------------------------------------------- 1. M.V.THAMPI, MANARAPRAYIL HOUSE, POTHANICADU P.O., ERNAKULAM DISTRICT. 2. VARGHESE, VAKKOTTIL HOUSE, POTHANICADU DESOM, POTHANICADU VILLAGE, ERNAKULAM DISTRICT. 3. DISTRICT EDUCATION OFFICER, ERNAKULAM. 4. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM. ADV. SRI.N.SUKUMARAN SRI.S.SHYAM R3 & 4 BY GOVERNMENT PLEADER SHRI. NOBLE MATHEW SRI.SAJI VARGHESE KAKKATTUMATTATHIL SRI.LATHEESH SEBASTIAN SRI.M.C.CHERIAN FOR ADDL.R SMT.SARAMMA CHERIAN FOR ADDL.R THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24/02/2009, ALONG WITH W.A. NO. 87 OF 2002 ,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.Nos. 86 & 87 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of February, 2009 JUDGMENT Balakrishnan Nair, J. W.A.No. 86 of 2002 The above appeal was filed against the judgment in O.P. No. 25139 of 2002. Respondents 1 and 2 in the Original Petition are the appellants. The petitioners are respondents 1 and 2 herein. 2. The petitioners approached this Court, challenging Ext.P10 order of the District Educational Officer, Kothamangalam dated 17.8.2001. As per the said order, the election of the second appellant as Manager of St.Mary's High School, Pothanickadu, on 12.11.2000, was approved by the District Educational Officer. The educational agency of the above High School is Umminikkunnu St.Mary's Church, the Vicar of which is the first appellant herein. The first appellant W.A.Nos. 86 & 87 of 2002 2 forwarded the name of the second appellant, as the person unanimously elected by the Edavaka Yogam as Manager, on 12.11.2000. As mentioned earlier, that appointment was approved for a period of five years from 17.8.2001. The petitioners, who are respondents 1 and 2 herein, attacked the approval of appointment granted to the second appellant as per Ext.P10, mainly on the ground that the election of the second appellant was made by the Edavaka Yogam in violation of the order in I.A.No.1050 of 1997 in O.S.No. 33 of 1997, before the Additional District Court, Ernakulam. 3. The appellants resisted the writ petition, contending that the election was held in accordance with law and the order in the I.A. mentioned above in O.S.No. 33 of 1997 did not stand in the way of conducting the election. It was not binding on the first appellant. The learned Single Judge overruled the objections of the appellants and while upholding the contentions of the writ petitioners, held that the Manager was elected in violation of the aforementioned interim order passed in the suit. Based on that finding, the election and the approval of appointment of the second appellant as per Ext.P10 was quashed. W.A.Nos. 86 & 87 of 2002 3 4. Challenging the judgment of the learned Single Judge, this appeal was filed. The appellants pointed out that the aforementioned suit itself was dismissed on 28.11.2000. The Interlocutory Application filed for prosecuting the appellants, for acting in defiance of the order in the aforesaid I.A., was also dismissed by the trial court on 15.1.2003. The appellants further submitted that the learned Single Judge ought not to have gone into the validity of the election. It is for the Civil Court to decide the said point. 5. The respondents, on the other hand, submitted that the election was held in violation of the interim injunction of the civil court and therefore the learned Single Judge rightly interfered with Ext.P10 and also the election of the second appellant as Manager of St. Mary's High School. W.A.No. 87 of 2002 6. This appeal arises from the judgment of the learned Single Judge in O.P.3008 of 1999. The said Original Petition was filed by the first respondent herein praying to quash Ext.P5 order passed by the Deputy Director of Education. As per Ext.P5, the Deputy Director W.A.Nos. 86 & 87 of 2002 4 approved the amendment to the bye-laws of the Educational Agency of St.Mary's High School, Pothanickadu. According to the writ petitioner, no properly convened Parish Assembly has met to consider the amendment to the original constitution, a copy of which is produced as Ext.P1. The first respondent in the writ petition, who is the 1st appellant herein, has no jurisdiction to seek approval of the amendment and the Deputy Director has committed an illegality in approving the amendment introduced to the bye-laws. It was also contended that the Deputy Director has no jurisdiction to consider the approval of amendment in view of the express provisions in Rule 2 of Chapter III of the Kerala Education Rules (K.E.R.). 7. The 1st appellant herein contested the writ petition by filing a counter affidavit. It was pointed out that the Edavaka Yogam (Parish assembly) has met and a proper resolution has been passed. As the Vicar, he forwarded the same to the Deputy Director, who is also authorised to approve the bye-laws of Corporate Educational Agencies, including amendments thereof. W.A.Nos. 86 & 87 of 2002 5 8. The learned Single Judge upheld the contentions of the petitioner/first respondent and held that the amendment to the bye-laws was passed without holding a proper general body, as the holding of the general body itself was restrained by the civil court by issuing an interim injunction. Therefore, Ext.P5 in the Original Petition, passed by the Deputy Director approving the amendment to the bye-laws, was quashed. 9. The learned Single Judge disposed of the two Original Petitions, along with three other writ petitions, by a common judgment dated 21.12.2001. The operative portion of the judgment reads as follows:- “13. In the result O.P.3008/99 is allowed. Ext.P5 order in O.P.3008/99 i.e. the order of the D.E.O. No.B1- 36534/98/L.Dis. dt.17.1.99 approving the amendment to Ext.P1 constitution of St.Mary's High School, Pothanickadu, shall stand quashed. 14. The election of the 2nd respondent James Varghese as the manager of the St.Mary's High School, Pothanicaud, and his approval as Manager as per Ext.P10 order in O.P.25139/2001 i.e. order No.K.Dis.8165/2000/ W.A.Nos. 86 & 87 of 2002 6 B2 dt.17.8.2000 are quashed. The District Court (Special Court for Malankara Church Cases), Ernakulam is directed to take appropriate steps either by appointing a commissioner or by appointing a receiver for holding a proper election for electing the manager to the above school in accordance with the provisions of the constitution of the school as expeditiously as possible. Till such election is made, the D.E.O. shall continue to be manager of the school. Further, the District Court (Special Court for Malankara Church Cases) shall dispose of O.S.40/2000 within six months from the date of production of a copy of this judgment.” 10. We heard the learned counsel Mr. B.G. Bhaskar, on behalf of the appellants and the learned counsel Mr.N.Sukumaran, on behalf of the respondents. 11. The learned counsel on both sides took us through the pleadings and materials before the court. They reiterated the respective stand they had taken in the Original Petitions. The learned counsel for the appellants submitted that the learned Single Judge ought not to have ventured to go into the validity of the resolutions approving the W.A.Nos. 86 & 87 of 2002 7 amendment and electing the Manager. Only a civil court could have gone into such disputes. Further, the direction to conduct election also could not have been issued in the aforementioned Original Petitions. So, the orders impugned were liable to be upheld and the Original Petitions are liable to be dismissed. The learned counsel for the contesting respondents, on the other hand, fully supported the view taken by the learned Single Judge. 12. We notice that there are very serious disputes between the parties regarding the validity of the election of the second appellant in W.A.No.86 of 2002, as the Manager of the school. Having regard to the nature of the dispute, we feel that it is not a matter, which can be decided by the District Educational Officer. The matter should have been left to the competent Civil Court for appropriate decision. Under the guise of reviewing the order of the D.E.O., it is not proper to go into the validity of the election, holding of the general body meeting etc. Whether the meeting was held in violation of the injunction order is also a matter seriously contested. Therefore, we are of the view that the interference made by the learned Single Judge with Ext.P10 W.A.Nos. 86 & 87 of 2002 8 order of the Deputy Director dated 17.8.2001 (produced in O.P.25139 of 2000) is unjustified. The judgment on that point is set aside. The finding of the learned Single Judge regarding the merits of the case are also vacated. The approved term of the second appellant as per Ext.P10, for a period of five years from 17.8.2001, is already over. Therefore, now it is not possible for the second appellant to assume charge on the strength of Ext.P10. 13. We notice that the appellants have a case that as per the amended bye-laws, there is a provision which enables the existing Manager to continue until a fresh election is made. We feel that such provision is made to take care of small gaps between two elections. But, more than two years and six months are over after the expiry of the term of the second appellant. Therefore, it is only in the interest of every one that only a fresh electee by a competent body alone should be allowed to assume charge of office of the Manager. Till such time, the present arrangement of the D.E.O. managing the school will continue. If any motion is made by the first appellant for approval of a newly elected Manager, the D.E.O. shall consider the same in W.A.Nos. 86 & 87 of 2002 9 accordance with law uninfluenced by anything contained in the judgment under appeal or this judgment. But he will be bound by the orders/judgment of any Civil Court concerning the subject matter, while taking the decision. 14. Ext.P5 order of the Deputy Director dated 17.1.1999 was set aside by the learned Single Judge in O.P.3008 of 1999. The reason was that the resolution was passed in violation of the interim order of the civil court in O.S.No. 33 of 1997, to which we have already adverted to. We feel that if the Vicar of the Church moves for registration of the amendment to the bye-laws before the competent authority, the said officer will normally go by the claim of the Vicar. Unless there is something illegal, which is so apparent on the face of the records, it is not proper for the Educational Officers to go behind the resolution supporting the amendment. Such matters are to be decided by the Civil court at the instance of the persons disputing the election. If the Deputy Director of Education cannot go into such things, while judicially reviewing his action, this Court also will not be justified in venturing to go behind the election and consider W.A.Nos. 86 & 87 of 2002 10 whether it is passed validly or not. In such matters, there will be disputes and it is for the disputants to take up the matter before the competent Civil court and establish the illegality. 15. Therefore, we are of the view that the interference made by the learned Single Judge with Ext.P5 is not justified. Accordingly, the judgment in O.P.3008 of 1999 dated 21.12.2001 is reversed. But, we may not be understood as having said that the resolution, based on which Ext.P5 is issued, is valid. The rights, if any, of the persons challenging the resolution will not be affected by this judgment. The direction issued by the learned Single Judge concerning the holding of the general body cannot, also, be supported. It is also for the competent civil court to decide that question. While hearing the writ petitions concerning approval of appointment of the Manager, this Court was not justified in issuing any direction to the District Court (Special Court for Malankara Church Cases) to take steps to hold the election. The matter was not raised before this Court in a validly filed petition under Article 227 of the Constitution. While hearing a petition under Article 226 of the Constitution, this Court is not justified W.A.Nos. 86 & 87 of 2002 11 in issuing a direction, as was done in this case, to the District Court (Special Court for Malankara Church Cases). So, the said direction is also recalled. It is clarified that the District Educational Officer and the Deputy Director (Education) will be bound by the orders/judgment of the civil court concerning the validity of the election to the office of the Manager and amendment to the bye-laws. The civil Court shall decide those points based on the evidence before it, uninfluenced by anything said in the judgment under appeal or in this judgment. 16. The Writ Appeals are disposed of as above. (K. BALAKRISHNAN NAIR) Judge (M.L. JOSEPH FRANCIS) Judge tm