IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932 OP.No. 28183 of 2002(E) ---------------------------------- PETITIONER(S): ----------------------- M.I. ANDREWS, S/O. LATE SRI.M.O. ITTOOP MUKKADAKKAL HOUSE, IRIMPANAM P.O., ERNAKUAM DISTRICT. BY SRI.P.RAVINDRAN, SENIOR ADVOCATE BY ADV. SRI.K.VINOD CHANDRAN RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. HE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, ERNAKULAM. 4. THE ASSISTANT DIRECTOR, VOCATIONAL HIGHER SECONDARY EDUCATION, EDAPPALLY, ERNAKULAM. 5. M.I. JOSE, MUKKADACKAL HOUSE, KOLENCHERRY-682 311, ERNAKULAM DIST. R1 TO R4 BY GOVERNMENT PLEADER SMT.M.R.SREELATHA R5 BY SRI.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 22/07/2010, ALONG WITH WPC NO. 31062 OF 2009 WPC NO. 32541 OF 2009 THE COURT ON 29/10/2010 DELIVERED THE FOLLOWING: O.P. NO.28183/2002 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDERRNO.B5-1799/2000/K.DIS DT. 13.3.2000 ISSUED BY THE 3RD RESPONDENT. P2:- COPY OF THE APPEAL DTD. 1.8.2000 SUBMITTED BY THE PETITIONER'S FATHER MR.M.O.ITTOOP BEFORE THE 2ND RESPONDENT. P3:- COPY OF THE TRUST DEED NO.1174/I/2001 DT.D 21.4.2001. P4:- COPY OF THE ORDER NO.ET/4/65857/00/DPI/D.DIS DT.D 2.8.2001 ISSUED BY THE D.P.I., TRIVANDRUM. P5:- COPY OF THE LETTER DTD. 20.8.2001 SUBMITTED BY THE PETITIONER'S FATHER TO THE 3RD RESPONDENT. P5(a):- COPY OF THE APPLICATION IN THE PRESECRIBED FORM SUBMITTED BY THE PETITIONER'S FATHER FOR CHANGE OF MANAGEMENT DT. 20.8.2001 TO THE 3RD RESPONDENT. P6:- COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONER TO THE IST RESPONDENT DT. 23.5.2002. P7:- COPY OF THE ORDER G.O.(RT) 2151/2002/G.EDN. DTD. 15.7.2002 ISSUED BY THE IST RESPONDENT. RESPONDENT'S EXHIBITS R5(a):- COPY OF THE JUDGMENT IN OP. 14260 OF THE HONOURABLE HIGH COURT DTD. 27.6.2001. R5(b):- COPY OF THE LETTER OF THE D.E.O. ERNAKUAM DTD. 1.1.2001. R5(c):- COPY OF THE AFFIDAVIT FILED BY MR.ITTOOP, ATTESTED BY NOTARY PUBLIC DT. 3.10.2000. R5(d):- COPY OF THE DEPOSITION OF MR.ITTOOP BEFORE SUB COURT, ERNAKUAM IN IA. 2780/2001 DTD. 4.11.2001. R5(e):- COPY OF THE ORDER OF THE DEO, ERNAKUAM GRANTING APPROVAL DTD. 13.3.2000. TRUE COPY P.S. TO JUDGE tss C.T.RAVIKUMAR, J. ----------------------------- O.P.No.28183 of 2002, W.P.(C)Nos.31062 & 32541 of 2009 ---------------------------- Dated 29th October, 2010 JUDGMENT The lis involved in these Writ Petitions is a sibling quarrel over the Management of Vocational Higher Secondary School, Irumpanam(for short 'the School' only). For the sake of convenience, WP(C) No. 32541 of 2009 is treated as the leading case and hereafter, the parties and documents are being referred to as described in the said Writ Petition unless otherwise specifically mentioned. 2. Late Sri. Itoop, the father of the petitioner and the 4th and the 5th respondents is the founder of the school. In fact, it was established in the year 1940. This Writ Petition is filed with the prayers to quash Ext.P9 order dated 22.10.2009 of the 2nd respondent and to issue a writ of mandamus directing the 2nd respondent to pass fresh orders after giving an opportunity of being heard to the petitioner. W.P (C) Nos.28183 of 2002 and 31062 of 2009 are filed by the 4th respondent herein. In the former Writ Petition filed by him the challenge is against the order of the Government dated 15.7.2002 (Ext.P7 therein) allowing the revision petition filed by the 5th respondent herein whereby status quo ante to the appeal petition dated 1.8.2000 O.P.No.28183/2002 & connected cases 2 filed by Itoop (Ext.P2 therein) was ordered to be maintained subject to the final decision in O.S No.333 of 2001 filed by the 5th respondent herein before the Sub Court, Ernakulam for cancellation of document No. 1174/01 viz., Ext.P4 Trust Deed dated 20.4.2001. 3. The founder of the School Sri. M.O.Itoop was its Manager. Daunted by dotage and other deceases he made up his mind to part with its management and the family members come to a concomitancy over the issue and reduced it in writing as family settlement on 7.1.2000 which is produced as Ext.P1 in W.P(C) No. 31062 of 2009. Thereafter, an application, purported to have been signed jointly by Sri.Itoop and the 5th respondent (Ext.P2 in WP(C) No.31062 of 2009), to transfer the management of the school in favour of the 5th respondent was submitted before the District Educational Officer, Ernakulam, the 3rd respondent. Thereupon, the 3rd respondent appointed the 5th respondent as the Manager of the School as per Ext.P2 order dated 13.3.2000. According to the petitioners in these writ petitions viz., the petitioner herein and the 4th respondent, Ext.P2 joint letter was a fabricated one as late Sri. Itoop had not signed the same. According to them, even after Ext.P2 order dated 13.3.2000 Sri.Itoop continued as the Manager of the School and the 5th respondent did not take over its Management. On coming to know about the said mischief Sri. Itoop filed an appeal dated 1.8.2000 O.P.No.28183/2002 & connected cases 3 (Ext.P2 in O.P.No.28183 of 2002) before the Director of Public Instruction, the 2nd respondent. Later, this Court as per judgment in O.P.No.14260 of 2000 directed the 2nd respondent to pass appropriate orders after hearing the concerned parties. During the course of the proceedings before the Director of Public Instruction the family settlement dated 7.1.2000 carrying the desire to form a Trust was produced and accordingly, it was adjourned to enable creation of the Trust. Accordingly, as per Ext.P3 registered deed No. 1174 of 2001 dated 20.4.2001 of the Thrippunithura Sub Registry a Trust was formed with Sri.Itoop as the settler and the petitioner and the 4th and 5th respondents as the beneficiaries. Ext.P3 was executed for the purpose of providing the governance of the school and its administration. Later, Ext.P3 Trust Deed was produced before the 2nd respondent. Accordingly, the 2nd respondent- DPI cancelled Ext.P2 order dated 13.3.2000 of the 3rd respondent - DEO and directed to approve the proposal for change of management in accordance with the terms and conditions in Ext.P3 Trust Deed dated 20.4.2001 subject to the judgment in O.S.No.333 of 2001 on the files of the Sub Court, Ernakulam. The said suit was filed by the 5th respondent herein for cancellation of Ext.P3 Trust Deed dated 20.4.2001. The 5th respondent challenged the aforesaid order of the DPI viz., Ext.P4 order dated 2.8.2001, in revision, before the Government. As per Ext.P5 order O.P.No.28183/2002 & connected cases 4 dated 15.7.2002 Government set aside Ext.P4 order of the DPI and status quo ante to the appeal dated 1.8.2001 viz., Ext.P2 in O.P.No.28183 of 2002, was ordered to be maintained subject to the final decision in O.S No.333 of 2001 filed by the 5th respondent. On the strength of Ext.P6 the 5th respondent again continued to function as the Manager of the school. 4. On 29.11.2008 O.S.No.333 of 2001 filed by the 5th respondent was dismissed by Sub Court, Ernakulam, with costs to the defendants including the petitioner and the 4th respondent herein. In fact, much prior to the passing of the same viz, Ext.P6 judgment Sri.Itoop had passed away. As per Ext.P6 it was held that Ext.P3 Trust Deed was not vitiated by undue influence or fraud alleged to have been exercised on Sri.Itoop by the petitioner and the 4th respondent herein and further, Ext.P3 Trust Deed is binding upon the 5th respondent, the plaintiff, as well. Immediately thereafter the 4th respondent approached the 3rd respondent - DEO for appropriate orders in terms of Ext.P5 order dated 15.7.2002 of the Government. Consequently, the 3rd respondent - DEO issued Ext.P7 order dated 6.2.2009. As per Ext.P7, the 3rd respondent DEO approved the change of Management of the School in the name of the 4th respondent for a period of two years from 29.11.2008 to 28.11.2010. It is also held that the change of management did not involve any change of ownership. Accordingly, O.P.No.28183/2002 & connected cases 5 the 4th respondent assumed charge as Manager of the School on 7.2.2009. Thereupon, the 5th respondent filed W.P(C)No.4225 of 2009 before this Court challenging Ext.P7 order dated 6.2.2009. The said Writ Petition was disposed of as per Ext.P8 judgment granting liberty to the 5th respondent to challenge Ext.P7 order, in appeal, before the DPI. The 4th respondent was permitted to continue to function as Manager of the School subject to the condition that he should not appoint fresh hands and making it clear that the parties would be governed by the orders passed by the Director of Public Instruction. Pursuant to Ext.P8 judgment the 5th respondent preferred an appeal against Ext.P7 order of the DEO under Rule 4(3) of Chapter III of the Kerala Education Rules (for short 'the KER'). Later, a hearing was conducted on 25.8.2009. The 4th and 5th respondents were heard by the DPI. Admittedly, no notice of hearing was given to the petitioner. Thereafter, the DPI has passed Ext.P9 order dated 22.10.2009. As per Ext.P9 it was found that the order in Ext.P7 of the DEO approving the Managership of the 4th respondent from 29.11.2008 to 28.11.2010 was not in order and accordingly, it was set aside. It was further ordered thereunder that the 5th respondent would continue the Managership until further orders. Ext.P9 order in this Writ Petition is produced as Ext.P10 in W.P(C) No.31062 of 2009. It is with the above averments that W.P(C) Nos. 32541 of 2009 and 31062 of 2009 are filed challenging the same order O.P.No.28183/2002 & connected cases 6 viz., Order No. EC(3)/33899/09/DPI/K.Dis. dated 22.10.2009 of the 2nd respondent, the Director of Public Instruction. In troth, both the writ petitions carry identical challenges based on common grounds except to the fact in the former among them, the petitioner has raised an additional ground that he was not served with any notice and was also, not afforded with an opportunity of being heard prior to the passing of the said order. As regards O.P.28183 of 2002 it was, in fact, filed challenging Ext.P5 herein viz., Ext.P7 therein, whereby Government set aside Ext.P4 order of the DPI and restoring status quo ante to the appeal dated 1.8.2001 subject to the final decision in O.S.No.333 of 2001 filed by the 5th respondent. On account of the subsequent developments and also the filing of W.P(C)No.31062 of 2009 by the same petitioner a separate consideration of the contentions in the said writ petition is not called for. I may, therefore, deal with the issues raised for consideration in WP(C)Nos.32541 of 2009 and 31062 of 2009. 5. Certain other aspects also assume relevance in this case. While admitting W.P(C)No.31062 of 2009 this Court has stayed operation and implementation of Ext.P10 which is Ext.P9 order in WP (C) No.32541 of 2009, on 2.11.2009. Thereafter, the petitioner in WP (C) No.31062 of 2009/the 4th respondent in WP(C) No.32541 of 2009 sought for extension of the interim order. However, the same was O.P.No.28183/2002 & connected cases 7 opposed by the 1st respondent therein who is the 5th respondent in WP (C) 32541 of 2009. After hearing all the parties in these writ petitions this Court, as per order dated 11.1.2010 modified the aforesaid interim order dated 2.11.2009 and passed a common order applicable to these cases. As per the same, from 6.2.2009 till 6.2.2011 the 4th respondent would be the Manager. From 7.2.2011 for the next 2 years it would be the turn of the petitioner viz., Sri.M.I.Pauly. However, instead of passing the turn of managership to the 5th respondent after the expiry of the term of the petitioner it was ordered to be passed on to the 4th respondent and that process was ordered to be continued among the petitioner and the 4th respondent till the excess period during which the 5th respondent held the managership in terms of Ext.P3 Trust Deed, was completely exhausted. Thereafter, it was ordered to be operated among the petitioner, the 4th respondent and 5th respondent in terms of Ext.P3. The said order dated 11.1.2010 was taken up in appeal as W.A No. 185 of 2010. As per judgment dated 3.2.2010 a Division Bench of this Court dismissed the Writ Appeal, but without prejudice to the contentions of the appellant viz., the 5th respondent. In short, in terms of the interim order dated 11.1.2010 the 4th respondent is presently holding Managership of the School since 6.2.2009. 6. A counter affidavit has been filed by the first respondent in W.P(C) NO. 31062 of 2009 and, in essence, the contentions in WP(C) O.P.No.28183/2002 & connected cases 8 No. 32541 of 2009 are on the same lines as in WP(C)No.31062 of 2009. Therefore, the first respondent who is the 5th respondent in W.P (C)No.32541 of 2009 submitted that no separate counter affidavit is required in the said Writ Petition. The 5th respondent herein is the 5th respondent in O.P.No. 28183 of 2002 as well. He has filed a separate counter affidavit therein. In essence, the 5th respondent refutes all the contentions of the petitioner and the 4th respondent and assails the very legality of Ext.P3 Trust Deed as well. In fact, it is for that purpose he has filed O.S.No.333 of 2001. Against Ext.P6 judgment in O.S.No.333 of 2001 he has preferred an appeal as A.S.No.20 of 2009 and the same is now pending. According to the 5th respondent even if Ext.P3 is taken as valid in civil law, it is unsustainable and inoperative for the purpose of the provisions under the Kerala Education Act and the Rules. I may, now deal with the rival contentions. 7. As already noticed, the petitioner and the fourth respondent are sailing together and both of them are assailing Ext.P9 order dated 22.10.2009 of the Director of Public Instruction in their respective writ petitions. The grievance of the petitioner is that Ext.P9 order was passed without notice to him. Going by Ext.P3 Trust Deed, the petitioner is also one of the beneficiaries besides respondents 4 and 5. Ext.P7 order of the District Educational Officer was passed strictly in terms of Ext.P5 order dated 15.7.2002 of the Government and also in O.P.No.28183/2002 & connected cases 9 compliance with Ext.P6 judgment in O.S.No.333 of 2001 of the Sub Court, Ernakulam. It is the contention of the petitioner that while interfering with Ext.P4 order passed by the second respondent - the Director of Public Instruction and directing to restore the status quo prior to the filing of appeal dated 1.8.2000 by late Sri.Ittoop (Ext.P2 in W.P.(C)No.31062 of 2009) and thereby permitting the 5th respondent to continue to function as Manager of the school, it was made clear by the Government that the said order would be subject to the final decision in O.S.No.333 of 2001 filed by the fifth respondent. Based on Ext.P5 it is contended that the fifth respondent did not challenge the legality of that part of Ext.P5 and virtually, permitted Ext.P5 to attain finality. In that view of the matter, according to the petitioner, the fifth respondent is estopped from raising grievance against Ext.P7 order which was passed in terms of Ext.P5 and in compliance with Ext.P6 judgment in O.S.No.333 of 2001. As already noticed hereinbefore, the fourth respondent virtually endorsed the contentions raised by the petitioner. In fact, it was contended on behalf of the fourth respondent that having failed to challenge Ext.P5 order the petitioner cannot turn around and challenge the legality of Ext.P7 which was passed by the DEO strictly in terms of Ext.P5 and also in terms of Ext.P6 judgment in O.S.No.333 of 2001. In short, the contention is that in case the 5th respondent who filed O.S.No.333 of 2001 is having a contention that O.P.No.28183/2002 & connected cases 10 irrespective of its outcome he is entitled to continue as Manager on account of the infirmities and illegalities that infected Ext.P3 Trust Deed he should have definitely challenged Ext.P5 order of the Government. The acquiescence on the part of the 5th respondent would definitely estop him from raising grievance against Ext.P7 order which was issued for implementing Ext.P5 order in the light of Ext.P6 judgment. In short, according to the petitioner and the fourth respondent, Ext.P7 order passed by the DEO is legal and valid and the 5th respondent could not have challenged Ext.P7 order in appeal on account of the aforesaid reasons. In essence, the contention is that the appeal preferred against Ext.P7 order itself was not maintainable. 8. Per contra, the 5th respondent contended that the appeal preferred by him was perfectly maintainable in terms of provisions under sub rule (3) of Rule 4 of Chapter III of the KER. That apart, it is contended that Ext.P7 is unsustainable for the reason that it was passed without affording him an opportunity of being heard. According to the fifth respondent, Ext.P7 order is an original order passed under sub rule (1) of Rule 4 of Chapter III of the KER. The fifth respondent has filed a counter affidavit in W.P.(C)No.31062 of 2009. In fact, he is the first respondent therein. Obviously, he is admitting the existence of Ext.P1 family settlement dated 7.1.2000 in W.P.(C)No.31062 of 2009. The contention of the fifth respondent is that Ext.P6 judgment in O.P.No.28183/2002 & connected cases 11 O.S.No.333 of 2001 would not automatically deprive him of the managership and, in fact, the rights of the parties in terms of Ext.P3 Trust Deed have to be decided by the DEO in terms of Ext.P5 order of the Government. Even going by the Trust Deed, he has to act as the Manager of the school for one year from the date of operation of Ext.P3 Trust Deed. It is, inter alia, on the aforesaid ground that the fifth respondent attacks Ext.P7 order. The further contention of the fifth respondent is that Ext.P7 order is an original order adjudicating the rights of the parties namely the petitioner, the fourth respondent and himself and therefore, it is an appealable order in terms of sub rule (3) of Rule 4 of Chapter III of the KER. 9. The fifth respondent has raised certain other contentions as well. According to him, the settler late Sri.Ittoop should have obtained previous permission in terms of the provisions under Rule 2 of Chapter III of the KER. It is also contended that if at all Ext.P3 Trust Deed is taken as valid in law, so long as it was not executed with previous permission from the educational authorities in terms of the provisions under the Kerala Education Rules, it cannot decide the rights of the parties to the Managership of the school in terms of the provisions under the Kerala Education Rules. In other words, according to him, it may be valid in civil law, but, it cannot be acted upon in terms of the provisions under the KER. Further, it is contended that if O.P.No.28183/2002 & connected cases 12 the Trust is found to have come in existence and the properties were transferred into the names of the trustees, then it would involve the change of ownership as well. In the matter of transfer of management involving transfer of ownership the authority competent to grant the same is the Director of Public Instruction and therefore, Ext.P7 order passed by the DEO is unsustainable. Relying on the said position, he has raised certain contentions as well. One such contention raised is, if the transfer of the properties were effected by virtue of Ext.P3 Trust Deed the entire transaction would be in contravention of Section 3 of the Kerala Education Act and as such it would be null and void. According to the fifth respondent, Rule 2 of Chapter III of the KER is not applicable in this case, whereas Rule 5A of Chapter III is applicable in the facts and circumstances of this case. Therefore, going by the contentions of the fifth respondent the question is whether Ext.P3 Trust Deed would fall within the purview of Section 6 of the Kerala Education Act. Lastly the fifth respondent contended that even if Ext.P7 order of the DEO is treated to have been passed in terms of Ext.P5 order of the Government and Ext.P3 Trust Deed taken as valid, in view of the order in Ext.P5 the petitioner could have continued to hold the managership of the school. According to him, an appeal is a continuation of the original suit and therefore, on account of the pendency of A.S.No.20 of 2009 pending on the files of the District Court, Ernakulam preferred O.P.No.28183/2002 & connected cases 13 against Ext.P6 judgment in O.S.No.333 of 2001, the third respondent DEO should not have issued Ext.P7 order as the suit, O.S.No.333 of 2001, had not attained any finality. 10. The learned counsel for the fourth respondent resisted the said contentions raised on behalf of the fifth respondent. It is contended that the expression `subject to rules' employed in Rule 2 to Chapter III and the expression `previous permission' employed in Rule 5A of Chapter III are different. Relying on the decision of the Apex Court in Surinder Singh v. Central Government (AIR 1986 SC 2166) it is contended that the expression `subject to rules' only means in accordance with the rules, if any. It is also contended that restriction of alienation of property of an aided school alone is prohibited without permission. In this case, what involves is only transfer of management. It is also contended that the contention that the third respondent should not have issued Ext.P7 order relying on Ext.P6 judgment and the order in Ext.P5 that the order therein would be subject to the outcome of O.S.No.333 of 2001, is not sustainable in view of the pendency of the appeal preferred against Ext.P6 judgment. It is contended that in terms of Order XLI Rule 5 of the Code of Civil Procedure an appeal cannot be considered as a stay of O.P.No.28183/2002 & connected cases 14 the judgment and decree in the original suit. It is obvious from the above contentions that the grievance of the petitioner is that he was not heard prior to the passing of Ext.P9 order of the Director of Public Instruction on 22.10.2009. According to him, being one of the beneficiaries of Ext.P3 Trust Deed and thus one of the persons entitled to hold the post of Managership in rotation, any decision touching the question of Managership of the school should have been issued only with notice to him and after affording him an opportunity of being heard. According to him, the second respondent has issued notices and heard only respondents 4 and 5 and on that sole ground Ext.P9 is unsustainable. 11. As already noticed hereinbefore, the grievance of the fifth respondent is that Ext.P7 order was passed by the DEO without issuing him notice and without affording him an opportunity of being heard. Admittedly, it is the said order that was interfered with by the Director of Public Instruction under Ext.P9. Thus, the petitioner and the fifth respondent are raising grievances of violation of the principles of natural justice at different stages of the proceedings, i.e., the petitioner at the stage of passing Ext.P9 and the fifth respondent at the stage of passing Ext.P7. Considering the fact that earlier Government have passed an order after considering the entire aspects of the case I do not propose to relegate the parties to resort to the remedy, if any, O.P.No.28183/2002 & connected cases 15 available before the Government. 12. True that, as per Ext.P8 judgment, this Court found that Ext.P7 order of the DEO is one passed under sub rule (1) of Rule 4 of Chapter III of the KER and therefore, it is appealable under sub rule (3) of Rule 4 of Chapter III. The question whether the petitioner was estopped from raising grievance against Ext.P7 order was not actually considered by this Court. Going by the facts of the case, it is evident that the petitioner has approached the Government on an earlier occasion on being aggrieved by Ext.P4 order whereby the Director of Public Instruction cancelled Ext.P2 order dated 13.3.2000 and directed to approve the proposal for change of management in accordance with the terms and conditions in Ext.P3 Trust Deed dated 20.4.2001. In the revision petition filed against the said