IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 WA.No. 983 of 2008() -------------------- (FROM JUDGMENT DT.11.4.2008 IN W.P.(C) No.20994/2007) ------------------------------- APPELLANTS/ RESPONDENTS 4 AND 6 IN W.P.20994/2007: --------------------- 1. SMT.S.RADHA DEVI, PRINCIPAL, VELLIMON VOCATIONAL HIGHER SECONDARY AND HIGHER SECONDARY SCHOOL, VELLIMON, KUNDARA, KOLLAM. 2. SMT.C.S.PADMAJA DEVI, CHERUKULATHU HOUSE, VELLIMON P.O., KUNDARA, KOLLAM. BY ADV. SRI.K.R.B.KAIMAL (SR.) SRI.UNNIKRISHNA KAIMAL RESPONDENTS/ PETITIONER AND RESPONDENTS 1 TO 3,5 AND 7: ------------------------ 1. C.B.GOPAKUMAR, S/O LATE SANKARANARAYANA PILLAI, SUKESHINI VIHAR, VELLIMON WEST PO, KUNDARA, KOLLAM. 2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 3. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 4. DISTRICT EDUCATIONAL OFFICER, KOLLAM. 5. SMT.C.S.SAVITHAMBIKA, POOVANDATT HOUSE, DIWANS ROAD, KOCHI-16. W.A..No.983/2008 6. C.B.PADMA KUMAR, CHERUKULATHU HOUSE, VELLIMON PO, KUNDARA, KOLLAM. ADV. SRI.S.P.ARAVINDAKSHAN PILLAY FOR R5 SRI.K.A.BALAN SRI.JAJU BABU FOR R6 SRI.K.R.KURUP FOR R1 GOVT.PLEADER, SRI.NOBLE MATHEW FOR R2 TO R4 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03/02/2009, ALONG WITH W.A.NO.1065/2008& 1108/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. ------------------------------------------------- W.A.Nos.983, 1065 & 1108 OF 2008 ------------------------------------------------- Dated this the 3rd day of February, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. W.P.(C) Nos.34201/2006 and 20994/2007 were heard and disposed of by a common judgment dated 11.4.2004 by the learned Single Judge. W.P.(C) No.34201/2006 was filed by Smt.C.S.Savithambika, mainly, challenging G.O.(Rt) No.5166/2006/G.Edn. dated 28.11.2006, granting exemption to the 4th respondent, Smt. S.Radha Devi, from the rigour of Rule 8 (2) of Chapter III of the Kerala Education Rules (hereinafter referred as “the K.E.R”) for the period from 13.4.2006 to 31.3.2008, invoking the power of the Government under Rule 3 of Chapter I of the K.E.R. W.P.(C) No.20994/2007 was filed by Mr.C.B.Gopakumar, challenging Ext.P3 order of the Director of Public Instruction dated 18.9.2006, giving sanction for the change of the individual educational agency of Vellimon Vocational Higher Secondary School and Higher Secondary School as Corporate Educational Agency and also issuing a direction to the District Educational Officer to approve Sri. C.B.Sanal Kumar as W.A.No.983/2008 & connected cases 2 the Corporate Manager from 1.6.2005. He also challenged Ext.P4 order, which is the order of the Government impugned in W.P.(C) No. 34201/2006 and also Ext.P6 order issued, approving the appointment of Smt.S.Radha Devi as the Manager of the aforementioned School. 2. Against the judgment in W.P.(C)No.20994/2007, the respondents 4 and 6 therein have preferred W.A.No.983/2008. Against the judgment in W.P.(C) No. 34201/2006, the 4th respondent therein has preferred W.A.No.1065/2008. The writ petitioner in W.P(C) No. 20994/2007 has filed W.A.No.1108/2008 to the extent the judgment in the said writ petition is against him. W.A.No.983/2008 (against the judgment in W.P.(C) No.20994/2007). 3. This appeal is treated as the main case and the parties herein are referred to as they are arrayed in the writ petition and the exhibits mentioned are also those produced in the said writ petition. W.A.No.983/2008 & connected cases 3 4. The brief facts of the case are the following. Sri.Sankaranarayana Pillai was the owner and Manager of the Vellimon Vocational Higher Secondary School and Higher Secondary School. The said School was having a High School wing and also a U.P. School wing. He had three sons and two daughters. The writ petitioner, Mr.C.B.Gopakumar, late Sanal Kumar, who was the husband of the 4th respondent Smt.Radha Devi, and 7th respondent, Mr.C.B.Padmakumar were the sons. The respondents 5 and 6 (Smt.C.S.Savithambika and Smt.C.S.Padmaja Devi) were his daughters. On 10.2.2005, the said Sri.Sankaranarayana Pillai registered a Trust Deed as per Ext.P2, creating a Trust, in which his two daughters, respondents 5 and 6, and also Mr. Sanal Kumar, the husband of the 4th respondent, were the trustees. The School along with its land and buildings were transferred in favour of the Trust. After the creation of the Trust, he moved the D.P.I. for sanction to transfer the School in favour of the Trust and also for change of management as contemplated under Rule 5A of Chapter III of the K.E.R. As per the provisions of the Trust Deed, it was to come into effect with effect from 1.6.2005. The D.P.I. immediately forwarded the application to the D.E.O. for his W.A.No.983/2008 & connected cases 4 report. When the said application was pending, Mr. Sanal Kumar, who was to be the Manager for a period of five years from 1.6.2005, as per the Trust Deed, died on 13.4.2006. Mr. Sankaranarayan Pillai, the author of the Trust and the 4th respondent, the widow of Mr. Sanal kumar, pursued the matter. Finally, as per the direction of this Court, the D.P.I. heard the matter and passed Ext.P3 order. The relevant portion of the said order reads as follows: “The petitioners have failed to produce all required documents for effecting changes of the ownership of the Institutions to the Trust. Taking into consideration of all the request of the parties involved in this case the change of individual educational agency as a Corporate Educational agency is a genuine one. Therefore sanction is hereby accorded to the Management of UPS/VHSS/HSS of Vellimon as Corporate Educational Agency as per the terms and conditions of “Cherukulathu Sankaranarayana Pillai Educational Trust” with effect from 1.6.2005. The District Educational Officer, Kollam will pass necessary orders approving Sri.Sanal Kumar as Corporate Manager of the Educational Agency with effect from 1.6.2005. The change of ownership of the Educational Institution to the Trust will be W.A.No.983/2008 & connected cases 5 issued subject to the production of all relevant documents in the matter by the parties involved.” As per the above order, change of management of the School from Mr.Sankaranarayana Pillai to Mr.Sanal Kumar, as per the Trust Deed was allowed. But, approval for change of ownership of the School was not granted. 5. As per the Trust Deed, Mr.Sanal Kumar was to be the Manager for five years. On his death, his sole legal heir, the 4th respondent was to succeed to Managership for the remaining period of the five years' term. But, the 4th respondent was the Principal of the Higher Secondary School. Therefore, in view of the provisions contained in Rule 8 of Chapter III of the K.E.R, she was disqualified to hold the post of Manager, though the Trust Deed authorised her to act as the Manager for the remaining term of her husband. So, the Government was moved to relax the rigour of the said Rule. The said motion was allowed by the Government, invoking its power under Rule 3 of Chapter I of the K.E.R. and Ext.P4 order dated 28.11.2006 was issued. The relaxation granted as per the said order was to remain in force W.A.No.983/2008 & connected cases 6 from 13.4.2006 to 31.3.2008, that is, from the date of death of her husband to the date of her retirement from service. The 4th respondent moved for change of management in her favour from13.4.2006. The said application is Ext.P6. The D.E.O. passed an order on it, which is endorsed at the bottom of the application, stating that change of management in her favour is approved for the period from 13.4.2006 to 31.3.2008. The author of the Trust, Mr.Sankaranarayana Pillai, died on 16.3.2007. 6. The petitioner, feeling aggrieved by Exts.P3, P4 and P6, filed the writ petition, seeking the following reliefs: “(i) Call for the records leading up to Ext.P6 and quash Ext.P3 by the issuance of a writ of certiorari or other appropriate writ direction or order. (ii) To set aside Exhibits P4 and P6 or any other order or orders passed by any Authority based on Exhibit P3 order, by the issuance of a writ of certiorari or other appropriate writ, direction or order. (iii) To declare Ext.P2 trust is defunct and is inoperative and cannot be acted upon.” W.A.No.983/2008 & connected cases 7 7. In support of the above prayers, it was contended that the creation of the Trust itself is illegal and therefore, it has become defunct. Alternatively, it was contended that the transfer in favour of the Trust of the School and its properties is vitiated, as the same was not done with the previous sanction of the D.P.I. as contemplated under Rule 5A of Chapter III of the K.E.R. The order granting exemption to the 4th respondent was issued without the jurisdictional pre-conditions contemplated under Rule 3 of Chapter I of the K.E.R. being present. There cannot be any retrospective grant of exemption. Even assuming, the grant of exemption is valid, the same can operate only prospectively. Going by the provisions of the Trust Deed, the author of the Trust wanted to exclude the 4th respondent, who is his daughter-in-law, it is submitted. So, the petitioner prayed for quashing the impugned orders. 8. The respondents 4 and 6 filed a counter affidavit, resisting the prayers in the writ petition and also supporting the impugned orders. The 7th respondent filed a counter affidavit, W.A.No.983/2008 & connected cases 8 supporting the contentions of the writ petitioner. The official respondents have also filed a counter affidavit, supporting their orders. 9. The learned Single Judge, after hearing both sides, quashed Ext.P4. The challenge against Ext.P3 was repelled. Since Ext.P4 was quashed, Ext.P6 being a dependent order, it would naturally fall to ground. 10. Aggrieved by the said judgment, the respondents 4 and 6 have preferred this Writ Appeal. The learned senior counsel, Mr.K.R.B.Kaimal, appearing for the appellants, submitted that the learned Single Judge went wrong in interfering with Ext.P4. The said order is validly passed under Rule 3 Chapter I of the K.E.R. There is nothing wrong in giving retrospectivity to an order passed under the above said Rule. Normally, after noticing the ill-effects of a Rule, the incumbent moves for relaxation. Invariably, some time will be required for the Government to act on such a grievance placed before it. So, there is nothing wrong with an order passed with retrospective effect to remove the ill-effects of the rigour of the rule, suffered W.A.No.983/2008 & connected cases 9 by the incumbent concerned. The learned senior counsel also took us through the various provisions of Ext.P2 Trust Deed. Special reference was made to Clauses 4 to 10. As per Clause 4, on execution of the Trust Deed, Mr.C.B.Sanal Kumar, the husband of the 4th respondent, will become the Manager for a period of 5 years. Thereafter, Smt.C.S.Savithambika, the 5th respondent, will become the Manager for a period of five years. On expiry on her term, Smt.C.S.Padmaja Devi, the 6th respondent, will be the Manager for a period of five years. The management will vest in the three trustees, namely, Mr.C.B.Sanal Kumar, Smt.C.S.Savithambika and Smt.C.S.Padmaja Devi by rotation. Their respective term will be for a period of five consecutive years. If, office of a trustee becomes vacant by death, the other trustees will nominate one of the legal heirs of the deceased trustee to be the new trustee. If a trustee dies, when he is functioning as Manager, his legal heir will be the Manager for the remaining period of his term, provided he is not disqualified under the provisions of the K.E.R. If there are more than one legal heirs, the senior among them will have the right to succeed to the post of Manager for the remaining period. The learned senior counsel pointed out that Mr. Sanal Kumar died, leaving behind the 4th respondent, his W.A.No.983/2008 & connected cases 10 widow, as his only legal heir. They were having no children. Therefore, invariably, other trustees were bound to nominate her, as the new trustee. By virtue of Clause 10 of the Trust Deed, she automatically succeeds to the office of Manager. Therefore, there was nothing wrong with the order of the Government passed in her favour. Since she was the Principal of the H.S.S., it was thought, Rule 8 will stand in her way to function as the Manager of the School and therefore the Government was moved and exemption was obtained. Having regard to the facts of the case, the same was rightly given, it is submitted. 11. The learned counsel Mr.K.R.Kurup, who appeared for the writ petitioner, supported the decision of the learned Single Judge. He also submitted that the judgment of the learned Single Judge to the extent it is against the writ petitioner is also liable to be reversed. For that, the writ petitioner has filed W.A.No.1108/2008. Since Rule 5A of Chapter III of the K.E.R. prohibits transfer of management and properties of the School without the previous sanction of the D.P.I., the transfer made in this case, in favour of the Trust, is unsustainable. The learned W.A.No.983/2008 & connected cases 11 Single Judge should have interfered with Ext.P3 also, it is submitted. 12. We heard the respective counsel appearing for respondents 5 and 7. We also heard the learned Government Pleader appearing for the official respondents. We will first consider whether the decision of the learned Single Judge, declining to interfere with Ext.P3, is valid or not. The learned Judge noted that what is granted under Ext.P3 is only a transfer of management. So, the learned Judge relied on Rule 4 of Chapter III K.E.R., especially, sub rule (2A) thereof, to sustain the transfer of management and also the retrospectivity given to it. It is not in dispute that for change of management, there is no necessity for seeking previous sanction. Ex post facto approval of the D.E.O. is permitted under sub-rule (2A) of Rule 4, for change of management without change of ownership. In this case, we notice that though the relief sought was a larger relief by the author of the Trust, that is, sanction for transfer of the management as well as the property, what is granted under Ext.P3 was only transfer of management alone. So, we are inclined to agree with the learned Single Judge that such a W.A.No.983/2008 & connected cases 12 transfer will not be hit by the bar under Rule 5A of Chapter III of the K.E.R. The said Rule requires previous sanction of the D.P.I. for transfer of management involving transfer of ownership. But, the learned counsel for the writ petitioner pointed out that, if that be so, the motion should have been made before the D.E.O. and not before the D.P.I., as, for change of management alone D.E.O. is the competent authority to grant sanction. We notice that the D.P.I is authorised to grant sanction for change of management and ownership of the property of the school. So, when a motion is made for the said purpose, if he grants a lesser relief, the same cannot be described as an order without jurisdiction. Therefore, the said technical contention does not impress us. So, we uphold the decision of the learned Single Judge regarding the validity of Ext.P3. 13. The next point to be considered is regarding the validity of the decision of the learned Single Judge to quash Ext.P4. Ext.P4 reads as follows: “In the circumstances reported by the Director of Public Instruction in his letter W.A.No.983/2008 & connected cases 13 read as 2 nd paper above Government are pleased to grant exemption from Rule 8(2) Chapter III Kerala Education Rules to Smt.S.Radha Devi, Cherukulathu Veedu, Vellimon, Kundara for holding the Managership of Vellimon Vocational Higher Secondary School, Kundara for the period from 13.4.2006 to 31.3.2008 without detriment to her duties and responsibilities as Principal of the School.” 14. The above order is issued under Rule 3 Chapter I of the K.E.R. The said rule reads as follows: “3. Where the Government are satisfied that the operation of any rule under these Rules causes undue hardship in any particular case, the Government may dispense with or relax the requirements of that rule to such extent and subject to such conditions as they may consider necessary for dealing with the case in a just and equitable manner.” 15. The power under Rule 3 has been invoked to relax the rigour of Rule 8(2) of Chapter III of the KER. Rule 8 reads as follows: “8. Persons connected with Management not to be appointed in schools: W.A.No.983/2008 & connected cases 14 (1) No person who is a manager or member or other office bearer of the Managing body, if any referred to in Rule 2, shall be eligible for any appointment in that school or any other school under the same Educational Agency. Provided that Managers or members,or other office-bearers of the Managing body working as teachers including Headmasters when these Rules come into force, may continue to do so: Provided further that the sub-rule (1) does not apply to a staff or Teacher's Committee wherein the members of the staff or teacher's of a school including the Headmaster are members. (2) No employee of the Government or of a local body or of an undertaking, company or corporation owned or controlled by the Government shall be the manager or a member or other office bearer of the managing body, if any, of a school unless it is in an ex-officio capacity. Provided that this sub-rule shall not apply to part time Government servants other than those employed in schools. (3) A student in an institution shall not be permitted to be the manager or a W.A.No.983/2008 & connected cases 15 member, or an office bearer of the managing body, if any of that institution. (3A) No person who is convicted by a court for an offence involving moral turpitude shall be eligible for appointment as manager or a member of the managing body. (4) The Manager of an aided school shall be literate, solvent and interested in educational progress. The Educational Agency of a recognised school shall be solvent and shall also be interested in educational progress.” 16. Going by the above Rule, a Manager cannot be appointed as a teacher or non-teaching staff of the school. Sub- rule (2) of the above Rule prohibits appointment of the persons specified therein as Manager. If a Manager cannot act as a teacher, it would imply that a teacher cannot function as Manager also. Apparently, the above legal position persuaded the Manager to seek exemption from the rigour of the said Rule, so that, she can function as Manager as well as the Principal of the School. The learned Single Judge found the order bad, mainly, relying on the decision of the Division Bench of this Court in Esther v. State of Kerala [1989(1) KLT 621]. In that W.A.No.983/2008 & connected cases 16 decision, relaxation in favour of a person, who is not covered by the Rules was granted. That was the main point highlighted in the said decision. But, in this case, we notice that the 4th respondent is definitely a person governed by the provisions of the K.E.R. She was seeking relaxation of the rules, so that, she can function as the Principal of the School and Manger of it, simultaneously. So, the principles laid down in the above said decision cannot have any application to the facts of this case. The learned Judge also relied on the decision of this Court in [1976 KLT Sh. Notes 7 (case no.16)]. The reported portion of that decision reads as follows: “We do not think that the Government can in exercise of their power under Rule 3 in Chapter 1 exempt with retrospective effect the operation of Rule 8 in chapter III.” 17. From what is stated above, it is not clear what are the reasons given for arriving at that conclusion. In other words, it is not clear what is the ratio decidendi of that decision. Ratio decidendi means the reason for deciding or the grounds for the decision. The ratio decidendi alone binds as a precedent and not the final conclusion. Further, the above view taken by the W.A.No.983/2008 & connected cases 17 Division Bench of this Court cannot stand with the later decision of the Hon'ble Supreme Court in Government of Andhra Pradesh v. D.J.Rao [AIR 1977 SC 451]. It was a decision dealing with the power of the Governor to grant relaxation of the provisions of the general rules contained in the Andhra Pradesh State and Subordinate Services Rules. Rule 47 interpreted by the Apex Court was similar to Rule 39 of Kerala State and Subordinate Services Rules. The Apex Court observed that occasion for acting under Rule 47, the Rule which conferred power on the Government to relax the provisions of the General Rules, may arise after the attention of the Government is invited to a case, where there has been a failure of justice. In such cases, justice can be done only by exercising the power under Rule 47 with retrospective effect. It was observed that otherwise the purpose of the Rule will be largely frustrated. In the said decision, the Apex Court observed as follows: “8. Rule 47 of the Andhra Pradesh State and Subordinate Services Rules gives power to the Governor to relax the rigour of the general rules in such manner as may appear to him to be just and equitable. To show that rule 47 giving such wide power to the Government is not unique of its kind, counsel W.A.No.983/2008 & connected cases 18 for the appellants referred to similar provisions in several other Service Rules like rule 13 of the Secretary of State's Services (Medical Attendance) Rules 1938, rule 10 of the Indian Administrative Service (Pay) Rules, 1954, rule 15 of the Indian Police Service (Probation) Rules, 1954, Rule 10 of the Indian Police Service (Pay) Rules, 1954 and Rule 10(b) proviso, of the Indian Forest Service (Appointment by Competitive Examination) Regulations, 1967. Clearly, the power under Rule 47 is to be exercised in the interest of justice and equity. It is not difficult to see that the occasion for acting under Rule 47 may well arise after the attention of the Government is drawn to a case where there has been a failure of justice. In such cases justice can be done only by exercising the power under R.47 with retrospective effect, otherwise the object and purpose of the rule will be largely frustrated. The view we take finds support from the decision of this Court in R.P.Khanna v. S.A.F. Abbas, (1972) 3 SCR 548 = (AIR 1972 SC 2350). In that case the Court was dealing with R.3(3)(b) of the Indian Administrative Service (Regulation of Seniority) Rules, 1954 which lays down that the year of allotment of an officer who was appointed to the Service by promotion shall be the year of allotment of the juniormost among the officers who entered the service by direct recruitment who officiated continuously in a senior post from a date earlier than the date of commencement of W.A.No.983/2008 & connected cases 19 such officiation by the former. The second proviso to the rule states that a promotee shall be deemed to have officiated continuously in a senior post prior to the date of inclusion of his name in the select list prepared in accordance with the requirements of the Indian Administrative Service (Appointment by Promotion) Regulations, if the period of such officiation prior to that date was approved by the Central Government in consultation with the Union Public Service Commission. Overruling a contention raised on behalf of the direct recruits that it was not open to the State to make a retrospective declaration with regard to posts being made equivalent to senior posts, this Court observed: “From the point of view of workability of the rule as well as the circumstances and the conditions of service it may not always be practicable to make such prospective declaration. It is only when the Government has found that it is necessary or desirable to declare such posts equivalent to senior posts that the Government will do so. That will be usually possible after the Government will have considered several factors, namely, finance, structure of the service, the personnel fit for undertaking the post. Normally, the promotees obtain promotion from the State Civil Service