“CR” IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 WP(C).No. 13553 of 2009(O) -------------------------- PETITIONER(S): PETITIONERS 1 & 2 AND 4 TO 7: 1. SATHJITH V.H., SOORYAHARI, KURUMANDAL, PARAVOOR. 2. P.JAYASINGH, BHARANAZHIKOM, KONGAL, -DO-. 3. MANI K.R., LETHA MANDIRAM, KOTTAPPURAM, -DO-. 4. VIJAYACHANDRAN, MAVILA, -DO-. 5. ANILKUMAR G., GOPINIVAS, KURUMANDAL-B, -DO-. 6. VASUDEVAN, UTHRADOM, KOTTAPPURAM, -DO-. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENT(S): 1. SHAJU S., ADVOCATE, RAJSADAN BUILDING, WEST OF COLLECTORATE, KOLLAM (RETURNING OFFICER, S.N.V.SAMAJAM). 2. SAJAN S., R.S.VILLA, KOTTAPPURAM, PARAVOOR, KOLLAM. 3. ABHILASH H., THUSHARA, KOTTAPPURAM, PARAVOOR, KOLLAM. 4. PARAVOOR SREENARAYANA VILASOM SAMAJAM, PARAVOOR P.O., KOLLAM, REPRESENTED BY ITS SECRETARY. ADV. SRI.B.SURESH KUMAR FOR R2 & 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: “CR” V. RAMKUMAR, J. = = = = = = = = = = = = = W.P.(c).No.13553 of 2009 = = = = = = = = = = = = = = Dated this the 26th day of May, 2009 JUDGMENT The petitioners, in this writ petition filed under Article 227 of the Constitution of India, are six members of the Paravoor Sreenarayana Vilasom Samajam, Kollam, which is the 4th respondent in this writ petition. The said Samajam is a charitable society registered under the provisions of the Travancore Cochin Literacy, Scientific and Charitable Societies Act, 1955. The petitioners, as members of the said Samajam, challenge Ext.P4 common order dated 6.5.2009 passed by the Vacation Judge, Kollam in charge of the Sub Judge, Kollam. Petitioners also seek a declaration that respondents 2 and 3 are statutorily prohibited from being appointed in the management and administration of an aided school by name S.N.V.Girls High School run by the said Samajam. W.P.(c).No. 13553 of 2009 2 2. The Samajam referred to above is running the aforesaid aided Girls High School by name S.N.V. Girls High School and an auditorium by name S.N.V.Samajam Auditorium. The affairs of the said Samajam are being run as per a Scheme settled by the Sub Court, Kollam in O.S.No.783 of 1994. The said Scheme suit was decreed by the Sub Court on 31.7.2002. As per the said Scheme, the Samajam is to be governed by a Managing Committee consisting of 21 members (vide Clause (9) of Ext.P1). The term of the Managing Committee is for 5 years from the date of assumption of office. In case the election to the Managing Committee is delayed beyond 5 years the existing committee can continue till the ensuing 31st of March before which date the election to the Managing Committee is to be completed and the duly elected Managing Committee should be entrusted with the administration of the Samajam. The day-to-day administration of the Samajam is vested in the Managing W.P.(c).No. 13553 of 2009 3 Committee( Vide Clause 9 of Ext.P1). The first election after the settlement of the scheme was held on 27.4.2003. The newly elected office bearers assumed charge on 23.5.2003. Election to the Manging Committee was to be conducted on or before 23.5.2008. But the election was actually conducted on 19.4.2009. There were altogether 42 candidates including respondents 2 and 3 who contested for the election. An objection was raised that respondents 2 and 3 cannot contest the election in view of the bar under Rule 8(2) of Chapter III of the Kerala Education Rules, 1959 (“the KER” for short). Sub rules(1) and (2) of Rule 8 of Chapter III KER read as follows:- “Persons connected with Management not to be appointed in schools. 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 officer-bearers of the Managing body W.P.(c).No. 13553 of 2009 4 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 teachers 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. The objection raised was that since the 2nd respondent who is working in the Industrial Training Department and the 3rd respondent who is a High School Assistant working in an aided school and receiving salary from the Government are both government servants they W.P.(c).No. 13553 of 2009 5 were ineligible to be the Manager or other officer bearers of the managing body of the school. Presumably because all disputes pertaining to election are to be settled by the court itself in view of Clause 23 of Ext.P1 Scheme, the petitioners who are six members of the Samajam filed I.A.No.455 of 2009 before the Vacation Judge, Kollam for setting aside the election of the 21 members including respondents 2 and 3. Two other members filed I.A.No.500 of 2009 for similar reliefs. I.A.No.454 of 2009 was an interlocutory application filed by the petitioners for an interim order restraining the newly elected members from taking charge. Likewise, the two other members filed I.A.No.501 of 2009 for a similar interim relief . As per Ext.P4 common order dated 6.5.2009, the learned Judge did not accede to the contention of the petitioners herein that Rule 8(2) of Chapter III KER contains an interdict rendering respondents 2 and 3 ineligible to be appointed as officer bearers of the Managing body of the School since W.P.(c).No. 13553 of 2009 6 as per Ext.P1 scheme the school does not have a managing body. However, the learned Judge prohibited respondents 2 and 3 herein from being elected as office bearers of the Managing Committee of the Samajam until the main applications were disposed off. According to the learned counsel appearing for respondents 2 and 3, in deference to the pending dispute respondents 2 and 3 have not chosen to challenge that part of the order since the office bearers of the Manging Committee of the Samajam are yet to be elected. 4. As observed earlier, the main question to be decided is whether Rule 8(2) of Chapter III KER contains an interdict rendering respondents 2 and 3 who are Government servants ineligible from being appointed as members or officer bearers of the managing body of the school. 5. Senior Advocate Sri. George Poonthottam, the learned counsel for the petitioners, made the following W.P.(c).No. 13553 of 2009 7 submissions before me in support of his contentions:- Clauses 6(12) in Ext.P1 Scheme in unmistakable terms indicates that the Samajam is the owner of the SNV Girls High School, Paravoor. Clause 9 of Ext.P1 also confirms the fact that the day-to-day affairs of the Samajam are vested in the Managing Committee and the said fact is further reinforced by Clause 14 of Ext.P1 which says that it is for the Managing Committee of the Samajam which is to approve the profits and loss concerning the school. Merely because the Samajam has nominated its President to be the Manager of the school, the Samajam is not divested of its ownership and management in respect of the school. If so, the Managing Committee of the Samajam should be deemed to be the Managing body of the school in which case the interdict clamped by Rule 8(2) Chapter III KER is squarely attracted. A similar view was taken in the unreported judgment dated 31.3.2009 in W.P.(c) No.768 of 2009. W.P.(c).No. 13553 of 2009 8 6. Advocate Sri.C.Rajendran, the learned counsel appearing for the 4th respondent-Samajam supported the contentions raised by the petitioner and made the following further submissions:- Exts.R4(a) to R4(k), minutes of the Managing Committee of the Samajam will show that it was the Managing Committee of the Samajam which has been dealing with all the affairs of the school. So, even if Ext.P1 Scheme does not in express words indicate that the Managing Committee of the Samajam shall be the Managing Body of the school, such an inference is a necessary corollary. 7. I am afraid that I cannot agree with the above submissions. It may be true that SNV Girls High School, Paravoor belongs to the Samajam and that the Samajam is the owner in respect of the School. But then, Clause 6(15) of Ext.P1 Scheme specifically states that the President of the Samajam shall be the Manager of the School. Again a W.P.(c).No. 13553 of 2009 9 perusal of Clause 10(6) of Ext.P1 Scheme shows that the administration of the school belonging to the Samajam shall vest in the Manager who is the president of the Samajam. The said clause further states that in his capacity as the Manager, the President of the Samajam shall have the exclusive authority to administer the school in accordance with the provisions of the KER. Rule 3 of Chapter III KER reads as follows:- Management to be vested in a Manager- 1. The management of every aided school may be vested by the Educational Agency in a person who shall be referred to as the Manager and who shall be responsible to the department for the management of the institution. 2. In the case of aided institutions under individual management the individual proprietor may be the Manager. 3. In the case of aided institutions under Corporate management the W.P.(c).No. 13553 of 2009 10 proprietary body may choose the Manager in accordance with the rules in that behalf referred to in Rule 2. 4. The Educational Agency shall be bound by the acts of the Manager. 8. The SNV Girls High School is admittedly an institution owned by a corporate management and as provided under Ext.P1 Scheme, it is the President of the Samajam who is to be the Manager of the School. Therefore the Management of the school stands vested in the President of the Samajam. 9. In order to attract the interdict under Rule 8(2) of Chapter III KER a Government servant should be either the Manager or a member or an office bearer of the managing body, if any, of the school. Except for the office of the Manager, Ext.P1 Scheme does not envisage any managing body for the school. For the bar under Rule 8(2) of Chapter III KER to attract it is not enough that the owner of the school has a Managing Committee or a W.P.(c).No. 13553 of 2009 11 Managing Body. The school itself should have a Managing Body or Managing Committee and it is only if a Government Servant is appointed either as a Manager or a member or office bearer of the said Managing Body of the school that the interdict under the said rule could be said to have been attracted. The question which arose in the case covered by the unreported judgment dated 31.3.2009 in W.P(c).No.768 of 2009 cited by the learned counsel appearing for the petitioners was whether a member of the Managing Committee of the School was eligible to be appointed as an employee of the school in violation of Rule 8(1) of Chapter III KER. There the School was to be administered by a Managing Committee. Here, when the school does not have any Managing Body or Managing Committee as per Ext.P1 Scheme, it is futile for the petitioners or any other member to contend that the bar under Rule 8(2) is attracted. In this view of the matter, the conclusions reached in Ext.P4 judgment of the Vacation W.P.(c).No. 13553 of 2009 12 Judge does not call for any interference at the hands of this Court. This writ petition which is filed without any bona fides is accordingly dismissed. Dated this the 26th day of May, 2009. V. RAMKUMAR, JUDGE sj