IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932 WP(C).No. 30106 of 2008(H) ---------------------------------------- PETITIONER(S): ----------------------- THE VICAR, ST. MARY'S CHURCH, NJARAKKAL - 682 505, ERNAKULAM DISTRICT. BY ADV. SRI.V.A.MUHAMMED, SRI.K.E.HAMZA. RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DISTRICT EDUCATIONAL OFFICER, ERNAKULAM. 3. THE MOTHER SUPERIOR, LITTLE FLOWER CONVENT, NJARAKKAL-682 505, ERNAKULAM DISTRICT. R1 & R2 BY GOVT. PLEADER SMT.NISHA BOSE. R3 BY ADV. SRI.S.SREEKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/08/2010, ALONG WITH WPC NO. 19273 OF 2008 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 30106 of 2008(H) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE CONSTITUTION (ORDER NO.K.DIS. G4-23491/71). EXT.P2: COPY OF THE PETITION FILED BEFORE THE GOVERNMENT BY THE 3RD RESPONDENT. EXT.P3: COPY OF THE NOTICE NO.20900/F1/08/G.EDN. OF THE GOVERNMENT. EXT.P4: COPY OF THE HEARING NOTE OF THE PET. EXT.P5: COPY OF THE G.O.(RT).NO.4363/08/G.EDN. OF THE GOVERNMENT. EXT.P6: COPY OF THE ORDER NO.B3-1073/08/K.DIS. OF THE DISTRICT EDL. OFFICER. EXT.P7: COPY OF THE CONSTITUTION OF THE CORPORATE EDL. AGENCY. EXT.P8: COPY OF THE -DO- OF MARY MATHA PROVINCE. EXT.P9: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WP(C) NO. 29553/2008-R. EXT.P10: COPY OF THE DOCUMENT NO.17/1947. EXT.P11: COPY OF THE DOCUMENT NO.66/1944. EXT.P12: COPY OF THE LETTER OF THE ARCHBISHOP. EXT.P13: COPY OF THE RELEVANT EXTRACT OF THE PANCHAYATH REGISTER. EXT.P14: COPY OF THE DOCUMENT OF THE PANCHAYATH. EXT.P15: COPY OF THE PROCEEDINGS OF THE VIMALA PROVINCE, ERNAKULAM. EXT.P16: COPY OF THE ORDER OF THE MOTHER PROVISIONAL. EXT.P17: COPY OF THE LETTER OF THE VIMALA PROVINCE. RESPONDENT'S EXHIBITS & ANNEXURE: EXT.R3(A): COPY OF THE LETTER NOS.4/1120 DATED 09-05-1045 AND C.NO.5/90 DATED 21-5-1945 SUBMITTED BY MOTHER SUPERIOR TO THE DIRECTOR OF PUBLIC INSTRUCTIONS, TRICHUR. EXT.R3(B): COPY OF THE PETITION DATED 11-2-2008 SUBMITTED BY 3RD RESPONDENT TO THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM. EXT.R3(C): COPY OF THE DOCUMENT NO.1157/1104 DATED 19 MAKAROM 1104(ME). (P.T.O.) WP(C).No. 30106 of 2008(H) EXT.R3(D): COPY OF THE DOCUMENT NO.652/101 DATED 6 MAKAROM 1101(ME). EXT.R3(E): COPY OF THE DOCUMENT NO.1522/1101 DATED 5 KARKKIDAKOM 1104 (ME). EXT.R3(F): COPY OF THE DOCUMENT NO.215/1950 DATED 22 FEBRUARY 1950. EXT.R3(G): COPY OF THE DOCUMENT NO.324/1120 DATD 2 VRICHIKOM 1120(ME). EXT.R3(H): COPY OF THE DOCUMENT NO.1523/1101 DATED 5 KARKKIDAKOM 1101. EXT.R3(I): COPY OF THE DOCUMENT NO.661/1101 DATED 29 DHANU 1101(ME). EXT.R3(J): COPY OF THE DOCUMENT NO.621/1102 DATED 5 DHANU 1102 (ME). EXT.R3(K): COPY OF THE TAX RECEIPT NO.1481 DATED 17-4-2008. EXT.R3(L): COPY OF THE TAX RECEIPT NO.49 DATED 17-4-2008. EXT.R3(M): COPY OF THE LETTER C.NO.1/1120 DATED 7-10-44, C.NO.2/1120 DATED 04/12/44, C.NO.3/1120 DATED 04/12/44, C.NO.3b/1120 DATED NIL, C.NO.5/20 DATED 21/05/45, C.NO.6/1120 DATED 04-06/45, C.NO.10/20 DATED 12/06/45 AND C.NO.11/20 DATED 15/06/45. EXT.R3(N): COPY OF THE LETTER NO.302/21 DATED 10/07/1946. EXT.R3(O): COPY OF THE 18TH DECEMBER 1944, ADDRESSED TO THE REGIONAL HON. CEMENT ADVISER, 33, AVANASHI ROAD, COIMBATORE. EXT.R3(P): COPY OF THE LETTER DATED 24/12/1944 ADDRESSED BY MOTHER SUPERIOR TO THE DEPUTY IRON AND STEEL CONTROLLER, MADRAS. EXT.R3(Q): COPY OF THE LETTER DATED 23/11/1944 ADDRESSED TO THE CHIEF ENGINEER COCHIN STATE. EXT.R3(R): COPY OF THE ORDER OF INJUNCTION DATED 02/05/2009. EXT.R3(S): COPY OF THE ORDER IN CMA.NO.25/09 DATED 14/07/2010 OF ADDL. DISTRICT COURT, N.PARAVUR. ANNEXURE-I: COPY OF THE TEMPORARY INJUNCTION IN OS.S.NO.298/2008 ISSUED BY LEARNED SUB JUDGE, NORTH PARAVUR. //TRUE COPY// P.A. TO JUDGE rs K.T.SANKARAN, J. ------------------------------------------------- W.P.(C).Nos.30106 of 2008, 37015 of 2008, 5102 of 2009, 36577 of 2009 & 19273 of 2008 ---------------------------------------------------- Dated this the 11th day of August, 2010 JUDGMENT Since the parties are common and since common questions arise for consideration in these Writ Petitions, the Writ Petitions are being disposed of by this common judgment as requested by all the counsel. WP(C) No.30106 of 2008 is taken as the main case. The facts are stated herein below and the exhibits are referred to as in WP(C) No.30106 of 2008. 2. The dispute essentially is whether Vicar of St.Mary's Church, Njarakkal or whether the Mother Superior, Little Flower Convent, Njarakkal is entitled to be the Manager of Little Flower Girls High School. A more fundamental question as to whether the School belongs to Little Flower Convent or whether it belongs to St.Mary's WPC No.30106/2008 & conn. cases 2 Church is also involved. The petitioner is the Vicar of St.Mary's Church, Njarakkal (hereinafter referred to as the ‘Vicar’). The Vicar challenges Ext.P5 order dated 30.9.2008 passed by the Government upsetting Ext.P1 proceedings dated 5.10.1971 passed by the Regional Deputy Director of Public Instruction, Ernakulam. By Ext.P5 order, the Government directed the District Educational Officer, Ernakulam to approve the Mother Superior, Little Flower Convent (hereinafter referred to as the ‘Mother Superior’)as the Manager of Little Flower Girls High School, Njarakkal. Consequently, the District Educational Officer passed Ext.P6 order dated 3.10.2008 which is also under challenge in the Writ Petition. 3. The case of the Vicar is the following : St.Mary's UP School, Njarakkal and Little Flower High School, Njarakkal belong to St.Mary's Church Educational Agency. Little Flower High School (hereinafter referred to as the ‘School’) was established by WPC No.30106/2008 & conn. cases 3 the Parishioners of the Church in 1948 under the blessings of Arch Diocese of Ernakulam – Angamaly. The Constitution of the Educational Agency was approved by the Regional Deputy Director of Public Instruction, Ernakulam as per Ext.P1 order dated 5.10.1971. As per the Constitution of the Educational Agency, the Vicar of the Church shall be the Manager of the School. At the time of commencement of the school, Father Kuruvila Panjikkaran was the Vicar of the Church and as such, he was the Manager of the school. The petitioner being the Vicar of the Church is the present Manager of the School. 4. While so, the third respondent Mother Superior filed Ext.P2 petition dated 2.4.2008 before the Secretary to Government (Education Department) praying for cancelling the approval of byelaws as per Ext.P1. In Ext.P2 proceedings, the Vicar filed Ext.P4 reply dated 15.5.2008. After hearing both parties, the Government passed Ext.P5 order dated 30.9.2008 holding that the School belongs to WPC No.30106/2008 & conn. cases 4 the Little Flower Convent and the same was established by the Mother Superior of the Convent. It was also held that the ownership of the School vests with the Convent. The Government directed the District Educational Officer to approve the Mother Superior as the Manager of the school. Accordingly, the District Educational Officer passed Ext.P6 order dated 3.10.2008. 5. According to the petitioner, Ext.P1 order passed in 1971 was beyond challenge by the Mother Superior before the Government. The Government has no jurisdiction to deal with a petition like Ext.P2 and to pass an order like Ext.P5 cancelling Ext.P1 proceedings. According to the petitioner, there was absolute lack of jurisdiction on the part of the Government. The petitioner contends that if the Mother Superior was aggrieved, her remedy was only to approach the civil court. According to the petitioner, a suit would be barred by limitation, since Ext.P1 order was passed in the year 1971. WPC No.30106/2008 & conn. cases 5 6. According to the Mother Superior, the property was purchased by the Convent as per Exts. R3(c) to R3(j) documents of title, though in some of the documents, the Convent was represented by the Vicar of the Church. The School was established in 1945 by the nuns of Little Flower Convent, before the commencement of the Kerala Education Act and Rules. The Mother Superior and the nuns of the Convent constitute the educational agency. Since the nuns found it difficult to manage the school, the Vicar of the Church (Father Kuruvila Panjikkaran) was appointed as the Manager by the Educational Agency. Sanction was granted by the Government to the Mother Superior to establish the School. The change of name of the School as Little Flower Girls High School, Njarakkal was also approved by the Educational Agency on the request made by the Mother Superior. The Mother Superior, representing the Educational Agency was appointing Vicar of the Church as the Manager of the WPC No.30106/2008 & conn. cases 6 school. The Mother Superior was not aware of any byelaw having been approved by the Educational Authorities in respect of the School. The School is housed in the Convent building which is occupied by the nuns. Recently, the Vicar of the Church was transferred and as the nuns of the Convent found that they could manage the school, an application was filed before the District Educational Officer to approve the Mother Superior as the Manager. At that time, the Mother Superior was informed that Ext.P1 order passed by the Regional Deputy Director of Public Instruction approving the byelaw of the Educational Agency was in existence. The proprietary body was the Convent. The Convent did not frame any such byelaw which was approved as per Ext.P1. The Church has no ownership over the school. The School was not sanctioned in favour of the Church. The proceedings of the Regional Deputy Director do not affect the right of ownership and the right of management of the School by the Convent. Ext.P1 order is void. The Mother Superior or the Convent WPC No.30106/2008 & conn. cases 7 is not bound by Ext.P1 order and they can ignore the same. The Regional Deputy Director of Public Instruction was not having any authority to pass Ext.P1 order under the Kerala Education Act and Rules. 7. As stated earlier, the Government considered the rival contentions put forward by the parties and held that the Convent has title to the properties of the School and that the Vicar or the Church has no title. It was also held that the Mother Superior had established the school. 8. After Ext.P5 order came into existence, it would appear that the disputes between the parties aggravated. In June, 2009 “precept under obedience” was issued to the Mother Superior directing her to show cause why she should not be removed from the position. In July, 2009 a letter of warning was issued by the Superior General of Mount Carmel Generalate to the Mother Superior. Even before that the Mother Superior was transferred to another Convent as an ordinary nun and not as Mother WPC No.30106/2008 & conn. cases 8 Superior. 9. When the Mother Superior was transferred to another Convent, she filed O.S.No.503 of 2009 on the file of the Munsiff's Court, Ernakulam. In fact the suit was filed before the vacation court and an application for temporary injunction was moved, in which an order of interim injunction was passed on 2.5.2009. O.S.No.503 of 2009 is pending. As against the letter of warning and “precept under obedience”, the Mother Superior filed O.S.No.298 of 2009 on the file of the court of the Subordinate Judge of North Paravur. The Sub Court, North Paravur granted an interim order of injunction restraining termination of service of the Mother Superior. That order was confirmed in C.M.A.No.25 of 2009 on the file of the Additional District Court, North Paravur. It is submitted that on the basis of the interim order in O.S.No.298 of 2009, the third respondent is continuing as the Mother Superior. O.S.No.121 of 2010, Sub Court, WPC No.30106/2008 & conn. cases 9 Kochi was filed by the Njarakkal Little Flower Convent Trust represented by the Chairperson and Mother Superior (the third respondent) and St.Joseph's Educational and Charitable Trust represented by the Principal and Manager and Mother Superior of the Convent (third respondent) for a declaration that the first plaintiff has full right of control and management of the Educational Agency of the Little Flower High School, Njarakkal. There is also a prayer for restraining defendants 1 to 6 from trespassing upon the plaint schedule property and from causing obstruction to the smooth functioning of Little Flower High School and St.Joseph's Public School. The plaintiffs also prayed for an injunction restraining defendants 7 and 8 from disturbing the peaceful functioning of the existing Convent community of six nuns including the third respondent. The defendants in O.S.No.121 of 2010 are 3 Bishops, the Cardinal, the Vicar of St.Mary's Church, the Catholic Bishops Conference, the Superior General and the WPC No.30106/2008 & conn. cases 10 Provincial. It is submitted that an interim order of status quo was passed in O.S.No.121 of 2010. It is stated that O.S.No.298 of 2009, Sub Court, North Paravur and O.S.No.121 of 2010, Sub Court, Kochi are pending. 10. Sri.V.A.Muhammed, the learned counsel for the petitioner submits that Ext.P7 Constitution of the Corporate Educational Agency, Vimala Province of the Congregation of Mother of Carmel, Ernakulam and Ext.P8 Constitution of the Corporate Educational Agency, Mary Matha Province, Angamaly of the Congregation of the Mother of Carmel show the schools owned by the Educational Agency. It is submitted that Annexure I attached to Ext.P8 show the schools owned by these Educational Agencies. Little Flower Convent, Njarakkal is not included as a school owned by any of these Educational Agencies. It is also submitted that after Exts.P5 and P6 orders were passed, the third respondent filed W.P.(C) No.29553 of 2008 before the this Court for WPC No.30106/2008 & conn. cases 11 police protection in which Ext.P9 judgment dated 3rd November, 2008 was passed. It is pointed out that the Division Bench of this Court held that if there is any dispute regarding the right to hold an office, that dispute should be settled by a competent civil court. The contention put forward by the learned counsel for the petitioner in this regard is that even after Exts.P5 and P6 orders were brought to the notice of this Court, it was thought by the Division Bench that the dispute requires to be settled by the civil court. Per contra Sri.S.Sreekumar, the learned counsel appearing for the third respondent submitted that Ext.P9 judgment does not say that in spite of Exts.P5 and P6 orders, the third respondent was bound to institute a civil suit. For the purpose of this Writ Petition, it is not necessary to arrive at any conclusion on this point. 11. The question to be resolved in this Writ Petition is whether Ext.P5 order passed by the Government is WPC No.30106/2008 & conn. cases 12 without jurisdiction or not. For that purpose, it is necessary to advert to the scheme of the Kerala Education Act and Rules touching upon the relevant aspect. Section 2(2) of the Kerala Education Act defines Educational Agency. Educational Agency means any person or body of persons permitted to establish and maintain any private school under the Act. Private school means an aided or recognised school (vide Section 2(7)). There is no dispute that the school in question is an aided school. Under Rule 1 of Chapter 3 of the Kerala Education Rules, private educational institutions are classified into two categories, namely, (i) those under individual Educational Agency and (ii) those under Corporate Educational Agency. Where the right to conduct the school is vested in an individual in his own right or as the legal representative of a joint family, the Educational Agency shall be termed “Individual Educational Agency” and in all other cases, the Educational Agency shall be termed “Corporate Educational Agency”. There is no dispute that the school WPC No.30106/2008 & conn. cases 13 belongs to a Corporate Educational Agency. 12. Rules 2, 4, 5 and 5A of Chapter III of Kerala Education Rules are extracted below for the sake of convenience. “2. Constitution of Corporate Management : In the case of institutions under corporate Educational Agency, the constitution of the Educational Agency to the extent and in so far as it relates to the management of any school must be subject to rules approved by the Director which should prescribe among other things (a) the manner in which the proprietary body shall carry out its functions relating to the management of the institutions and (b) the manner in which the managing body shall be elected or appointed, the conditions and tenure of their office and their duties and powers with respect to the management of the institution. In the case of aided schools, WPC No.30106/2008 & conn. cases 14 the manner of appointment of managers also shall be specified in the rules. Such rules shall not be against the provisions of the Education Act, the rules issued under it, or any other rules passed by the Department or the Government. Any change made in such rules subsequently shall be subject to approval by the Director before becoming operative. 4. Approval of appointment of Managers : (1) The Educational Officers shall be competent to approve the appointment of Managers by Educational Agencies and to approve changes in the personnel of the Managers. (2) If the Educational Agencies have schools in more than one Educational District within a Revenue District the appointment of managers and changes in the personnel of the managers may be approved by the Deputy Director (Education) having jurisdiction in the Revenue District. If the Educational Agencies have schools in more than one Revenue District the appointment of WPC No.30106/2008 & conn. cases 15 managers and changes in the personnel of the Managers may be approved by the Director of Public Instruction. (2A) The approval of appointment of Managers and Changes in the personnel of the Managers under sub-rules (1) and (2) above shall take effect from the date of actual assumption of charge of the management specified in the order of approval issued by the competent authorities concerned. (3) Any person aggrieved by an order of the Educational Officer under sub-rule (1) or of the Deputy Director (Education) under sub-rule (2) may within 30 days from the date of receipt of the order prefer an appeal to the Director. (4) Government may, on their own motion or otherwise, revise any order passed by the Director of Public Instruction.” 5. Change of management : (1) All changes in the personnel of the Managers of aided institutions shall be immediately reported to the Educational Officer and WPC No.30106/2008 & conn. cases 16 approval obtained. (2) Appointments and changes approved by the Educational Officer shall be reported to the Director. Note : The Rules 4 and 5 do not apply to change of management involving change of ownership. 5A. Change of management involving change of ownership : (1) Notwithstanding anything contained in these rules, no change of Management of any aided school involving change of ownership shall be effected except with the previous permission of the Director. The Director may grant such permission unless the grant of such permission will, in his opinion, adversely affect the working of the institution and the interests of the staff and the person to whom the Management is transferred. (2) Any person aggrieved by an order under sub-rule (1) may, within 30 days from the date of the receipt of the order, prefer an appeal to the Government. (3) In the case of change of WPC No.30106/2008 & conn. cases 17 management of a school involving change of ownership the new Manager of a corporate or an individual Educational Agency, shall be bound to absorb any member who is a claimant under Rule 51A of Chapter XIVA or is eligible for protection belonging to teaching and non- teaching staff of any school of the transferor manager, against the vacancies that may arise in the school.” 13. According to the petitioner, the Deputy Director of Public Instruction, Ernakulam, as per Ext.P1 proceedings, approved the rules of the Corporate Educational Agency. According to the third respondent, since the School in question was established before the commencement of the Kerala Education Act and Rules, there was no Constitution or Rules to be approved by the Director under Rule 2 of Chapter III. The third respondent had challenged Ext.P1 before the Government which led to Ext.P5 order. There is no dispute that Rules 4, 5 and 5A of Chapter III would apply to the case on hand. WPC No.30106/2008 & conn. cases 18 Rule 5 deals with changes in the personnel of the Managers of aided institutions while Rule 5A deals with change of management involving change of ownership. Rule 4 of Chapter III provides for approval of appointment of Managers. Sub Rule (3) of Rule 4 provides for an appeal to the Director and Sub Rule (4) of Rule 4 provides for revision against the orders passed in appeal under Sub Rule (4) of Rule 4. Sub Rule 2 of Rule 5A provides for an appeal to the Government against the order passed by the Director. However, an order under Rule 2 of Chapter III is not appealable or revisable under any specific provision in the Kerala Education Rules. Going by the scheme of Chapter III of Kerala Education Rules, it is clear that wherever the rule making authority thought that an appeal or revision should be provided, it has made provisions for the same. By not providing an appeal or revision against the orders passed under Rule 2 of Chapter III, the rule making authority manifested their intention not to confer any power on the Government to revise or WPC No.30106/2008 & conn. cases 19 reconsider an order passed by the Director under Rule 2. Had it been the intention of the Rule making authority that the Government should have appellate or revisional power, there was no difficulty for specifically providing for an appellate or revisional power, as is done in Rule 4(4) and Rule 5A(2). Rule 2 contemplates approval of the Rules for the management of the Educational Institution under the Corporate Educational Agency and the only condition is that the Rules shall not be against the provisions of the Kerala Education Act and the Kerala Education Rules. The Corporate Educational Agency is the authority to make Rules for the management of the schools owned by the said agency. If a dispute arises between or among the parties constituting the Educational Agency, which cannot be resolved under any specific provision in the Kerala Education Act and Rules, they have to work out their remedies, not before the Government or the Educational Officers, but before the civil court. Though the jurisdiction of the civil court is not WPC No.30106/2008 & conn. cases 20 specifically mentioned in Rule 2, there is no case for any of the parties that the civil court lacks jurisdiction to deal with a dispute among the members constituting the Corporate Educational Agency in relation to a matter touching upon the constitution and the rules. A Rule in the Kerala Education Rules need not confer jurisdiction of the civil court. As provided in Section 9 of the Code of Civil Procedure, the civil court shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. The Kerala Education Act and Rules do not bar the jurisdiction of the civil court in respect of a matter covered by Rule 2 of Chapter III of Kerala Education Rules. 14. Sri.S.Sreekumar, the learned counsel for the third respondent submitted that when the Church approached the Deputy Director of Public Instruction for approval of the constitution and the rules, necessarily an WPC No.30106/2008 & conn. cases 21 order should have been passed by the Deputy Director approving that the Church is the Educational Agency. In answer Sri.V.A.Muhammed, the learned counsel appearing for the petitioner submitted that only on finding that the Educational Agency had submitted the application for approval of the constitution and the rules the Deputy Director could pass a proceedings like Ext.P1. No separate order is required for such purpose. I do not think a decision on this question is required for the purpose of disposing of this Writ Petition. 15. Sri.S.Sreekumar also submitted that the Convent is the Educational Agency and the Deputy Director has taken the Church as the Educational Agency which necessarily involves change of ownership. There is no material to indicate that there was such a change of ownership. Ext.P1 does not indicate that there was a change of management involving change of