IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 WP(C).No. 18348 of 2009(K) -------------------------- PETITIONER(S): --------------- P.BALAN NAIR,S/O.RAMAN NAIR, RESIDING AT POOLOTT HOUSE, MAMBETTA,KOZHIKODE. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENT(S): --------------- 1. V.UMMER KOYA,S/O.VEERANKUTTY HAJI, RESIDING AT SUBAIDA MANZIL,POST ANAYANKUNNU, KUMARANELLUR,VIA.MUKKOM, KOZHIKODE DISTRICT. 2. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE. 3. THE DISTRICT EDUCATION OFFICER, THAMARASSERY,KOZHIKODE. ADDL.R4 : 4. A.L.PRAVEEN RAJ S/O.APPU MUKKAM, KOZHIKODE. IS IMPLEADED AS PER ORDER DATED 20.1.2010 IN I.A.NO.403/10 ADDL.R5 5. AMJADKHAN.M.K. S/O.ABDUL HAMEED MATTATHODI HOUSE KIZHUPARAMBA, AREECODE MALAPPURAM DISTRICT IS IMPLEADED AS PER ORDER DATED 16.2.2010 IN I.A.NO.2003/10 WPC 18348/2009 ADDL. R6 6. SUDHINA.K. HIGH SCHOOL ASSISTANT (ENGLISH) MOKKAM HIGH SCHOOL RESIDING AT PALAPARAMBIL APARTMENT CIVIL STATION P.O., KOZHIKODE - 20. IS IMPLEADED AS PER ORDER DATED 28.9.2010 IN I.A.NO.12774 OF 2010 GOVERNMENT PLEADER SMT.M..R.SREELATHA ADV. SRI.BABU JOSEPH KURUVATHAZHA FOR R1 SRI.K.I.SAGEER FOR R1 GOVERNMENT PLEADER FOR R2,3 SRI.K.P.BALASUBRAMANYAN FOR ADDL.RES. SRI.NIRMAL. S FOR ADDL.RES. SRI.M.GOPIKRISHNAN NAMBIAR SRI.S.P.ARAVINDAKSHAN PILLAY FOR ADDL.R. SMT.N.SANTHA FOR ADDL.R. SRI.K.A.BALAN FOR ADDL.R. SRI.PETER JOSE CHRISTO FOR ADDL.R. SRI.S.A.ANAND FOR ADDL.R. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/03/2011 ALONG WITH WPC NO.31856 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 18348/2009 APPENDIX PETITIONER'S EXHIBITS : EXT.P1: COPY OF THE SAID REPRESENTATION DATED 20.2.2009 BY THE FIRST RESPONDENT TO THE THIRD RESPONDENT. EXT.P2: COPY OF THE WRIT PETITION FILED BY THE FIRST RESPONDENT AS W.P.(C) NO.7382 OF 2009. EXT.P3: COPY OF THE JUDGMENT IN W.P.(C) NO.7382/2009 EXT.P4: COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DATED 29.5.09. EXT.P5: COPY OF THE REPRESENTATION BY THE PETITIONER TO THE THIRD RESPONDENT DATED 8.6.09. RESPONDENTS' EXHIBITS : EXT.R1(a) : COPY OF THE JUDGMENT DATED 21.11.89 IN O.P.NO.7619/89 OF THIS HON'BLE COURT. EXT.R1(b) : COPY OF THE JUDGMENT DATED 1.3.1990 IN W.A.NO.81/1990 OF THIS HON'BLE COURT. EXT.R1(c) :COPY OF THE ORDER DATED 20.3.1991 IN SPECIAL LEAVE TO APPEAL (CIVIL) NO.5575/90 OF THE HON'BLE SUPREME COURT OF INDIA. EXT.R1(d) : COPY OF THE JUDGMENT DATED 21.5.2008 IN W.P.(C) NO.11089/2008 OF THIS HON'BLE COURT. EXT.R1(e) : COPY OF THE COMMON JUDGMENT DATED 31.1.2009 IN O.S.NOS.373/95 AND 272/97 OF THE LEARNED SUBORDINATE JUDGE'S COURT, KOZHIKODE. EXT.R1(f) : COPY OF THE DECISION DATED 17.2.2009 OF THE GENERAL BODY MEETING OF THE MUKKAM EDUCATION SOCIETY. EXT.R1(g) : COPY OF THE LETTER NO.B5/4992/09 DATED 16.5.2009 ISSUED BY THE SECOND RESPONDENT TO THE THIRD RESPONDENT. //TRUE COPY// P.A. TO JUDGE K.T.SANKARAN, J. -------------------------------------- W.P.C.Nos.18348 of 2009 & W.P.C.Nos.31856 of 2009 --------------------------------------- Dated this the 22nd day of March, 2011 JUDGMENT W.P.(C) No.18348 of 2009 is filed by one Balan Nair challenging Exhibit P4 order dated 29.5.2009 issued by the District Educational Officer, Thamarassery approving V.Ummer Koya, the first respondent, as the Manager of Mukkam High School. W.P.(C) No.31856 of 2009 is filed by a teacher appointed in the said school, challenging Exhibit P3 order passed by the District Educational Officer, declining approval of appointment on the ground of pendency of W.P.(C) No.18348 of 2009. 2. Mukkam High School, Kozhikode is run by Mukkam Educational Society (Hereinafter referred to as 'Society'). Disputes arose regarding the election of office bearers of the Society which led to the filing of O.P.No.7619 W.P.(C) Nos.18348/2009 & 31856/2009 2 of 1989 before this Court. As per the judgment dated 21st November, 1989, O.P.No.7619 of 1989 was disposed of as follows : "6. On an anxious consideration of the entire facts and circumstances of the case, I feel that first respondent may not be in a position to adjudicate on the disputed question regarding the membership of the Society. That dispute has to be settled by a competent authority on the basis of relevant evidence to be let in. A competent civil court alone will be in a position to adjudicate on this issue. On the facts and circumstances of this case, I feel that the first respondent is not to be entrusted with the task of settling the dispute between the parties. The circumstances which existed at the time of disposal of O.P.No.11257/85 have changed. Entire controversy between the parties has to be gone into on the basis of evidence to be adduced by contesting parties. This responsibility cannot be fully discharged by the first respondent. W.P.(C) Nos.18348/2009 & 31856/2009 3 7. For a proper administration of the school, I consider it proper to direct first respondent to discharge the function of Manager of the school till the contesting parties settle their dispute in a properly instituted suit. I make it clear that till a competent civil court pronounces on the issue regarding the management of the school, first respondent or any officer of the Education Department duly authorised by him in this behalf will discharge the functions of the Manager of the school." 3. Though Writ Appeal No.81 of 1990 was filed challenging the judgment in O.P.No.7619 of 1989, the Writ Appeal was dismissed as per Exhibit R1(b) judgment dated 1.3.1990. As per the judgment in O.P.No.7619 of 1989, the first respondent therein, namely, the Deputy Director of Education, Kozhikode was functioning as the Manager of the school. W.P.(C) Nos.18348/2009 & 31856/2009 4 4. Two suits were filed before the Sub Court, Kozhikode as O.S.Nos.373 of 1995 and 272 of 1997 for declaration that the respective committees represented by the respective plaintiffs were duly elected. O.S.No.373 of 1995 was filed by the Society, represented by its Secretary, V.Ummer Koya (First respondent in the present Writ Petition and others). O.S.No.272 of 1997 was filed by Balan Nair (Petitioner in the present Writ Petition) and others. As per Exhibit R1(e) judgment dated 31.1.2009, O.S.No.373 of 1995 was decreed and O.S.No.272 of 1997 was dismissed. Challenging the judgment of the trial court, A.S.Nos.86 of 2009 and 87 of 2009 were filed by Balan Nair and others before the District court, Kozhikode and those appeals are pending. 5. Ummer Koya, the first respondent in W.P.(C) No.18348 of 2009, approached the District Educational Officer requesting to approve him as Manager of the school. Ummer W.P.(C) Nos.18348/2009 & 31856/2009 5 Koya submitted Exhibit P1 representation to the District Educational Officer. Later, Ummer Koya filed W.P.(C) No.7382 of 2009 for issuing a writ of mandamus to the Deputy Director of Education to hand over management of the school to him and to dispose of the representation submitted by Ummer Koya before the District Educational Officer. (The representation was marked as Exhibit P7 in W.P.(C) No.7382 of 2009). W.P.(C) No.7382 of 2009 was disposed of as per Exhibit P3 judgment dated 24.3.2009. The learned Single Judge of this Court held thus : "4. It is now conceded that Exhibit P5 judgment has not become final. The appellate court is in seizin of the matter. I am therefore of the considered opinion that the management of the school cannot be handed over to the petitioner as prayed for in the Writ Petition. He will have to await the outcome of appeals pending in the appellate court which is in seizin or the matter, before seeking that W.P.(C) Nos.18348/2009 & 31856/2009 6 relief. It will be open to the petitioner to move the District Court, Kozhikode where A.S.Nos.86 and 87 of 2009 are pending and seek orders regarding maintenance of the school buildings. It will also be open to the parties to the appeals to move the lower appellate court for the appointment of a Receiver to take possession of and manage the school pending resolution of the dispute by the civil court. The Writ Petition is disposed of as above." 6. It would appear that the Deputy Director of Education issued Exhibit R1(g) letter dated 16.5.2009 to the District Educational Officer directing the District Educational Officer to approve the change of management of the school in favour of V.Ummer Koya. In Exhibit R1(g), it was stated thus : "Now the Hon'ble Subordinate Judge, Kozhikode as per the judgment dated 31.1.2009 has declared that Sri.V.Ummerkoya the second W.P.(C) Nos.18348/2009 & 31856/2009 7 plaintiff was validly elected as Secretary of the Educational Society and the manager of Mukkam High School in the meeting of the members of the governing body held on 13.3.1989. Consequently, Sri.V.Ummerkoya as per his letter dated 25.2.2009 has requested to change the management of the school in his favour. It is understood that Sri.Poolakkott Balan Nair and others filed an Appeal Suit before the Hon'ble District Judge, Kozhikode by filing A.S.No.86 of 2009. But no orders restraining the implementation of the judgment of the lower court is seen passed so far. The District Educational Officer is the statutory authority to approve the change of management of aided schools. In this circumstances, the District Educational Officer, Thamarassery is directed to approve the change of management of Mukkam High School in favour of Sri.V.Ummer Koya temporarily subject to review later in accordance with A.S.No.86/2009." 7. On the basis of Exhibit R1(g) letter, the District Educational Officer passed Exhibit P4 order dated 29.5.2009 W.P.(C) Nos.18348/2009 & 31856/2009 8 temporarily approving V.Ummer Koya as the Manager of the school subject to the decision in A.S.No.86 of 2009 pending before the District Court, Kozhikode. The petitioner, namely, P.Balan Nair, challenges Exhibit P4 order in W.P.(C) No.18348 of 2009. 8. It is submitted by the learned counsel for the petitioner that before passing Exhibit P4 order, the petitioner was not heard by the District Educational Officer. Had notice been issued to the petitioner, he could have submitted before the District Educational Officer that the change of management could not be made in view of the judgment in O.P.No.7619 of 1989. It is also submitted that the District Educational Officer passed Exhibit P4 order on the basis of the direction issued by the Deputy Director of Education. The Deputy Director of Education was a party to W.P.(C) No.7382 of 2009 which was disposed of as per Exhibit P3 judgment dated 24th March, 2009. After the disposal of that Writ W.P.(C) Nos.18348/2009 & 31856/2009 9 Petition, the Deputy Director of Education, in total disregard of the judgment passed by the High Court, issued Exhibit R1 (g) letter dated 16.5.2009 to the District Educational Officer directing change of management in favour of V.Ummer Koya. It is submitted that Exhibit P3 order was passed in violation of the directions contained in the judgment in W.P.(C) No.7382 of 2009. 9. In W.P.(C) No.18348 of 2009, Praveen Raj got himself impleaded as per I.A.No.403 of 2010. One Amjadkhan, who was appointed as a full time menial in the school, filed I.A.No.2003 of 2010 to get himself impleaded. Sudhina, the petitioner in W.P.(C) No.31856 of 2009, who was appointed as a teacher in the school got herself impleaded as per I.A.No.12774 of 2010 in W.P.(C) No.18348 of 2009. 10. It is relevant to note that the judgment in W.P.(C) No.7382 of 2009 was challenged in Writ Appeal No.985 of W.P.(C) Nos.18348/2009 & 31856/2009 10 2009 by Ummer Koya. Thereafter, Exhibit P4 order was passed by the District Educational Officer approving Ummer Koya as the Manager. The Writ Appeal was thereafter closed on 10.6.2009 on the ground that Ummer Koya was approved as the Manager. 11. The contesting respondents contended that an appeal lies against Exhibit P4 order and therefore, the Writ Petition is not maintainable. In reply, the learned counsel for the petitioner submitted that Exhibit P4 order was passed as per the directions issued by the Deputy Director of Education and therefore, there is no meaning in filing an appeal before him. The alternative remedy is illusory and therefore, the Writ Petition is perfectly maintainable. It is also submitted that Exhibit P4 order was passed without affording an opportunity of being heard to the petitioner and on that ground also, the petitioner could file the Writ Petition notwithstanding the availability of an alternative remedy. W.P.(C) Nos.18348/2009 & 31856/2009 11 12. As per the judgment and decree in O.S.No.373 of 1995 and 272 of 1997, Ummer Koya would be entitled to function as the Manager. The District Educational Officer is the authority to approve the change of management. No stay was granted by the appellate court in A.S.Nos.86 of 2009 and 87 of 2009. It is also submitted that even if Ummer Koya did not file W.P.(C) No.7382 of 2009, the District Educational Officer could have passed Exhibit P4 order approving him as the Manager. The fact that Ummer Koya filed a Writ Petition for a direction to the District Educational Officer to dispose of his representation, he could not have a greater disadvantage. Balan Nair had not filed any Writ Petition and any observation in the Writ Petition filed by Ummer Koya could not result in interdicting the educational authorities to exercise their jurisdiction. 13. In the facts and circumstances of the case, I do not think it proper to quash Exhibit P4. On the basis of the W.P.(C) Nos.18348/2009 & 31856/2009 12 judgment and decree in the suits, there was no bar for approving Ummer Koya as the Manager. It is true that appeals are pending against those judgments and decrees. At the same time, no stay was granted by the appellate court. It is also a relevant fact that this Court in W.P.(C) No.7382 of 2009 observed that it was not proper to hand over the management of the school to Ummer Koya and that he has to await the outcome of the appeals pending before the appellate court. Ummer Koya was also directed to seek appropriate orders in the appeals pending before the District Court. In these circumstances, the interests of the parties can be safeguarded by issuing a direction that Ummer Koya will continue to function as the Manager with a rider that he will also act as the Receiver in respect of the management of the school accountable to the District Court, Kozhikode. 14. Accordingly, W.P.(C) No.18348 of 2009 is disposed of as follows : W.P.(C) Nos.18348/2009 & 31856/2009 13 (i) Exhibit P4 order and the approval of change of management in favour of Ummer Koya would be subject to the functioning of Ummer Koya as the Manager cum Receiver. (ii) Ummer Koya will function as the Receiver in management and administration of the school. He shall file quarterly reports before the District Court, Kozhikode in A.S.Nos.86 of 2009 and 87 of 2009. He shall obey the directions issued by the District Court. The District court may call for reports from Ummer Koya, other than the quarterly reports mentioned above. (iii) It is submitted that the Headmaster of the school will retire on superannuation on 31.3.2011. Suitable candidate as per the provisions of the Kerala Education Act and Rules can be W.P.(C) Nos.18348/2009 & 31856/2009 14 appointed as the Headmaster by the Manager, Sri. Ummer Koya, and for that purpose, he need not get further directions from the District Court. (iv) Any other appointment in the school shall be made only after getting orders from the District Court, Kozhikode in A.S.Nos.86 of 2009 and 87 of 2009. (v) The parties would be entitled to make a prayer before the District Court to dispose of the appeals expeditiously. 15. The appointments of Sudhina, the teacher and Amjadkhan, the full time menial would not be affected by the pendency of W.P.(C) No.18348 of 2009. The question of approval of appointments of the aforesaid persons will be considered by the Educational Officer concerned in accordance with law. W.P.(C) Nos.18348/2009 & 31856/2009 15 16. As stated earlier, W.P.(C) No.31856 of 2009 is filed by Sudhina, the teacher (HSA (English)) appointed by Ummer Koya, the Manager of Mukkam High School. The proposal for approval of appointment of Sudhina was forwarded to the District Educational Officer. The District Educational Officer returned the proposal stating that the question of approval of appointment cannot be considered in view of the interim order in W.P.(C) No.18348 of 2009. Since W.P.(C) No.18348 of 2009 is disposed of today, there is no bar for the District Educational Officer to consider the question of approval of appointment of Sudhina in accordance with law. The Writ Petitions are disposed of as above. K.T.SANKARAN JUDGE csl