IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 21ST JANUARY 2010 / 1ST MAGHA 1931 WP(C).No. 7422 of 2007(H) ------------------------- PETITIONER(S): --------------- C.GOPINATHAN, S/O RAMAKRISHNA GUPTAN, RESIDING AT CHUNDEKKAT HOUSE, P.O.AZHIYANNUR, KADAMBAZHIPURAM, PALAKKAD DISTRICT. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.SUNIL J.CHAKKALACKAL RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GENERAL EDUCATION(F)DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, OTTAPALAM, PALAKKAD. 4. K.N.RAVICHANDRAN, HIGH SCHOOL ASSISTANT, HIGHER SECONDARY SCHOOL, KADAMBAZHIPURAM, PALAKKAD DISTRICT. GOVERNMENT PLEADER SRI V.MANU SRI.SAIBY JOSE KIDANGOOR FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 7422 of 2007 APPENDIX EXHIBITS EXT.P1- TRUE COPY OF THE NOTICE OF HEARING DATED 12.6.2006 EXT.P2- TRUE COPY OF THE STATEMENT SUBMITTED BY THE REPRESENTATIVE OF THE PETITIONER DATED 20.6.06 EXT.P3- TRUE COPY OF THE ORDER OF APPOINTMENT DATED 4.1.2006. EXT.P4- TRUE COPY OF THE APPLICATION FOR TRANSFER OF AMANGEMENT WITH TITLE DATED 24.6.06 EXT.P5- TRUE COPY OF THE COVERING LETTER DATED 24.6.06 EXT.P6- TRUE COPY OF THE ORDER GRANTING EXEMPTION BEHIND THE BACK OF THE PETITIONER DATED 9.2.07 (TRUE COPY) P.A TO JUDGE ANTONY DOMINIC, J ------------------- W.P.(C).7422/2007 -------------------- Dated this the 21st day of January, 2010 JUDGMENT 1. The challenge in this writ petition is against Ext.P6 order passed by the 1st respondent in the purported exercise of power under Rule 3 of Chapter I of the Kerala Education Rules (KER for short). 2. The facts of the case are that Sri.C.S.Guptan was the Manager of the Higher Secondary School, Katampazhipuram. Sri.C.S.Guptan expired on 6.9.2006 without children and his wife had also predeceased him. According to the petitioner, the property of the deceased devolved on his brother C.Ramakrishna Guptan's four children, among whom, petitioner is one. O.S.No.165/2005 before the Sub Court, Ottappalam seeking partition of the properties of the deceased is pending. In that Suit, the 4th respondent, a teacher in the school got himself impleaded as additional defendant on the basis that he is the sole legate of the school property, based on a will allegedly executed by the deceased as Document No.12/2000. The Suit is still pending. W.P.(C).7422/07 2 3. During the pendency of this Suit, the 4th respondent made an application to the Director of Public Instructions, the 2nd respondent, for transfer of the School Management with title as provided under Rule 5 of Chapter V of the KER. The DPI issued Ext.P1 notice to the petitioner and other legal heirs. Petitioner appeared before the DPI and submitted Ext.P2 statement incorporating the details of the aforesaid Suit, which is pending consideration. Orders have not been passed on the said application. While so, Ext.P4 application was made by the petitioner praying for transfer of Management of the School with title in his favour, in terms of Rule 5A of Chapter III of the KER producing consent of other legal heirs and also furnishing the details of the Suit. That application is also pending consideration of the DPI. 4. While the matter stood thus, the 4th respondent submitted Ext.R4(a) application before the 1st respondent, seeking exemption from the provisions of Rule 8(1) of Chapter III of KER which provides that a Teacher like him cannot be connected with the Management of the School. This W.P.(C).7422/07 3 application was made by the 4th respondent invoking the Government's power under Rule 3 of Chapter I of KER. The reason stated in Ext.R4(a) for exemption reads as follows. Need of exemption from Rule 8(2) Chapter III KER – I am, at present working as has in HSS, Katampazhipuram and I have continuous service from 24.7.89 in the institution. I would not like to give up my job for assuming the charge as Manager of the Institution. Under the circumstances, exemption from Rule 8(2) Chapter III of KER may be granted so that I can perform the dual role of has as well as the Manager of the Institution. 5. Without issuing notice to the petitioner or other legal heirs or parties to the Suit, Government passed Ext.P6 order allowing Ext.R4(a). The order reads as follows. As per the representation read as 1st paper above, Sri.K.N.Ravichandran, High School Assistant, Higher Secondary School, Katampazhipuram requested Government for exemption from Rule 8(1) Chapter III Kerala Education Rules for taking up the management of W.P.(C).7422/07 4 Higher Secondary School, Katampazhipuram. The petitioner submitted in the representation that the manager of the school had expired on 5.9.05 and he had executed a Will bequeathing all the movable and immovable properties in favour of the petitioner. The Director of Public Instruction vide letter read as 2nd paper above informed Government that exemption from Rule 8(1) Chapter III Kerala Education Rules is required for the petitioner for taking up the management of the school since he is working in the same school. Government have examined the request in the light of the report of the Director of Public Instruction and are pleased to accord exemption from Rule 8(1) Chapter III Kerala Education Rules in favour of Sri.K.N.Ravichandran, High School Assistant, Higher Secondary School, Katampazhipuram for taking up the management Higher Secondary School, Katampazhipuram without detriment to his official duties as a teacher. 6. It is challenging Ext.P6 order, this writ petition has been filed. Three contentions are raised by the learned senior counsel for the petitioner. The first contention is that the order W.P.(C).7422/07 5 was passed without notice to the petitioner or other claimants. The second is that the rival claims for the Managership of the School is pending consideration of the Civil Court and that Ext.P6 order does not satisfy the requirements of Rule 3(I). The learned counsel also places reliance on the Division Bench Judgment of this Court reported in Esther v. State of Kerala (1989 (1) KLT 621). 7. I have considered the submissions made. 8. Rule 3 of Chapter I of the KER reads hereunder. “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.” 9. Thus Rule 3(I) can be invoked only in a case where the Government are satisfied that the operation of any rule under W.P.(C).7422/07 6 the KER, causes undue hardship in any particular case. It is only on such satisfaction can the Government dispense with the requirements of the rule to such extent and subject to such conditions, as they may consider necessary for dealing with a case in a just and equitable manner. This very Rule has been interpreted by this Court in Esther v. State of Kerala (1989 (1) KLT 621) where it has been held thus. “It is clear from this provision that the Government has been conferred the power to dispense with or relax the requirements of any of the Kerala Education Rules. Such a power can be exercised only when the Government is satisfied that the operation of the particular rule causes undue hardship. It is the hardship that is caused by the operation of a particular provision that is the condition precedent for exercise of the power of dispensation or relaxation.” 10. A reading of Ext.P6 order shows that there is no finding in the said order that the rule causes undue hardship to the 4th respondent. In the absence of such a finding, the Government could not have exercised the power under Rule 3 of Chapter I. Therefore this contention merits acceptance. W.P.(C).7422/07 7 11. I also find merit in the contention raised by the learned counsel for the petitioner that Ext.P6 order has been passed in violation of principles of natural justice. The facts show that both parties are agitating for their rights before the Civil Court and also before the DPI. Ext.P6 order will have the impact on the pending proceedings also, which means that it will have the impact on the claims made by the petitioner. Such an order adversely affecting the interest of the petitioner, could not have been passed by the Government without issuing notice and hearing the persons who are likely to be affected by the order. In this case, admittedly Ext.P6 order has been passed without issuing notice to the petitioner or the other children of late C.Ramakrishna Guptan. Their requirements of compliance with the principles of natural justice have also been accepted by the Division Bench in the aforesaid judgment. Therefore, for that reason also Ext.P6 cannot be sustained. 12. The third contention raised by the learned counsel for the petitioner is that in the facts of the case, the Government ought not have exercised its power under Rule 3 of Chapter I. W.P.(C).7422/07 8 Considering the aforesaid two grounds itself, I am inclined to set aside Ext.P6 and direct reconsideration. Therefore, I do not think that this Court should pronounce on the third contention which, in my view, is a matter to be dealt with by the Government. 13. Therefore, I set aside Ext.P6 and direct the 1st respondent to reconsider Ext.R4(a) application made by the 4th respondent with notice to the petitioner, 4th respondent and other children of C.Ramakrishna Guptan who are also parties to O.S.No.165/2005 now pending before the Sub Court, Ottappalam. Orders shall be passed as expeditiously as possible, at any rate, within three months of receipt of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, Judge mrcs