IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 WP(C).No. 25235 of 2008(D) --------------------------------------- PETITIONER(S): ------------------------- K.SUDEVAN, MANAGER, C.A.HIGH SCHOOL PERUVAMBA, R/AT.GURUKULAM, PERUVAMBA PO., PALGHAT. BY ADV. DR.GEORGE ABRAHAM RESPONDENT(S): --------------- 1. SANTHAKUMARY, W/O.RAMACHANDRAN KARUMATHIL KALAM, KARUPPALI, VADAVANNOOR PO., PALGHAT. 2. DISTRICT EDUCATIONAL OFFICER, PALGHAT 3. DY.DIRECTOR OF EDUCATION, PALGHAT. 4. DIRECTOR OF PUBLIC INSTRUCTION, O/O.THE DIRECTOR OF PUBLIC INSTRUCTION JAGATHI, TRIVANDRUM-14. 5. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. W.P.(C) NO.25235/2008 *ADDL. R6 IMPLEADED 6. KRISHNAN KUTTY, S/O. VELAN RESIDING AT MANNADATHU KULAMBU, PARUEMBAL, PALAKKAD. ADDL. R6 IS IMPLEADED AS PER ORDER IN IA. 10986/08 DT. 21.8.08. ADV. SRI.V.CHITAMBARESH (SR.) FOR R1 SRI.P.K.SURESH KUMAR FOR ADDL.R6 SRI.K.P.SUDHEER FOR ADDL.R6 SRI.T.C.SURESH MENON FOR R1 SRI.JIBU P THOMAS FOR R1 SRI.P.S.APPU FOR R1 SRI.N.RAGHURAJ FOR ADDL.R SMT.K.AMMINIKUTTY FOR ADDL.R BY GOVERNMENT PLEADER SRI.A.J.VARGHESE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.25235/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE APPROVAL OF APPOINTMENT OF THE PETITIONER AS MANAGER BY THE DEO DT. 24.2.99. P2:- COPY OF THE RELINQUISHMENT OF THE CLAIM GIVEN BY THE IST RESPONDENT AND OTHERS TO THE PETITIONER. P3:- COPY OF THE NOTICE ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD DT. 15.12.07. P4:- COPY OF THE FITNESS CERTIFICATE ISSUED BY THE ASST. ENGINEER DT. 29.2.08. P5:- COPY OF THE LETTER DT. 24.6.08 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD. P6:- COPY OF THE ORDER DT. 12.8.08 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD. P7:- COPY OF THE ORDER DT. 6.6.08 ISSUED OF THE DEPUTY DIRECTOR OF EDUCATION, PALGHAT TO THE DIRECTOR OF PUBLIC INSTRUCTIONS. P8:- COPY OF THE ORDER DT. 7.8.08 ISSUED BY THE DIRECTOR OF PUBLIC INSTRUCTIONS. P9:- COPY OF THE ORDER DT. 16.8.08 ISSUED BY THE PERSONNEL ASSISTANT TO THE DISTRICT EDUCATIONAL OFFICER, PALGHAT. P10:- COPY OF THE ORDER ISSUED BY THE DIRETOR OF PUBLIC INSTRUCTIONS TO THE DISTRICT EDUCATIONAL OFFICER. P11:- COPY OF THE JUDGMENT OF THE HONOURABLE SESSIONS COURT, PALAKKAD IN CRL. APPEAL NO.34/97. P12:- COPY OF THE ENQUIRY CONDUCTED AGAINST THE DY .DIRECTOR OF EDUCATION ISSUED BY THE D.P.I. DT. 26.6.08. P13:- COPY OF THE REPLY LETTER ISSUED BY THE IST RESPONDENT THROUGH HER COUNSEL. P14:- COPY OF THE LETTER DT. 18.7.08 ISSUED BY THE ASSISTANT ENGINEER TO THE SECRETARY, PERUVAMBA GRAMA PANCHAYAT. P15:- COPY OF THE LETTER DT. 31.7.08 ISSUED BY THE ASSISTANT ENGINEER OF PERUVAMBA. P16:- COPY OF THE ORDER ISSUED BY THE VICE PRESIDENT, PERUVAMBA GRAMA PANCHAYAT DT. 24.6.08. W.P.(C) NO.25235/2008 RESPONDENT'S EXHIBITS R1(a):- COPY OF THE NOTIFICATION EMPOWERING THE 3RD RESPONDENT DT. 7.5.80. R1(b):- COPY OF THE MINUTES OF THE STAFF MEETING OF THE SCHOOL DT. 13.8.08. R1(c):- COPY OF THE PHOTOGRAPHS DEPICTING THE THEN DILAPIDATED CONDITION OF THE SCHOOL BUILDING DT. NIL. R1(d):- COPY OF THE JUDGMENT IN CC. NO.132/94 ON THE FILE OF THE COURT OF THE JUDICIAL IST CLASS, ALATHUR DT. 7.2.97. R6(a):- COPY OF THE JUDGMENT IN CC. NO.132/94 ON THE FILE OF THE COURT OF THE JUDICIAL MAGISTRATE OF THE IST CLASS, ALATHUR DT. 7.2.97. R6(b):- COPY OF THE NEWS ITEM PUBLISHED IN THE MALAYALA MANORAMA AND DESABHIMANI DAILIES DT. 26.5.08, 27.5.08 AND 25.5.08. R6(c):- COPY OF THE COMMUNICATION ISSUED TO THE WRIT PETITIONER DT. 6.6.08. R6(d):- COPY OF THE LETTER ADDRESSED BY THE DIRECTOR OF PUBLIC INSTRUCTIONS TO THE DEPUTY DIRECTOR OF EDUCATION DT. 7.8.08. R6(e):- COPY OF THE LETTER OF THE IST RESPONDENT ADDRESSED TO THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD DT. 12.8.08. R6(f):- COPY OF THE MINUTES OF THE MEETING PRESIDED BY THE IST RESPONDENT AS THE MANAGER OF THE SCHOOL DT. 13.8.08. /TRUE COPY/ P.A. TO JUDGE tss ANTONY DOMINIC, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P(C).No. 25235 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of November, 2008 JUDGMENT Challenge in this Writ Petition is against Exts.P6 to P9. 2. The controversy is in relation to the managership of a high school by name CAHS, Peruvamba in Palakkad District. This school was established by late Sri.Chami Iyyer in the year 1953. On change of management of the School, petitioner's father functioned as the Manager until his death in 1994. The manager left behind two sons and two daughters as his legal representatives. 3. It is stated that, by Ext.P2, the daughters consented to the petitioner becoming the manager and as his younger brother also did not dispute the same, he was appointed as the manager and the same was approved with effect from 08.11.1994, as per Ext.P2 order. Petitioner submits that the fitness certificate for the year 2007- 08 was not issued and on that basis the 3rd respondent issued Ext.P3 show cause notice, proposing disciplinary action against him. It is stated that thereafter he approached the Assistant Executive Engineer, PWD and pursuant to a joint inspection, Ext.P4 fitness certificate was issued certifying that the building is fit till 31.03.08. W.P.C.No. 25235 OF 2008 -:2:- Petitioner submits that Ext.P4 was produced before the 3rd respondent and thereupon proceedings pursuant to Ext.P3 were closed and that salary was released to the teachers. 4. While the petitioner contends that with the production of Ext.P4, proceedings pursuant to Ext.P3 were closed, respondents including official respondents, do not accept this position. Petitioner submits that for the year 2008-09, fitness certificate was again refused and as is seen from the counter affidavit filed by the 1st respondent, the 2nd respondent conducted an enquiry in the school, on 04.06.08 in the presence of all concerned. It is stated that, thereafter Ext.P5 notice was issued by the 3rd respondent requiring the petitioner and others to appear for a meeting convened by the Additional Director of Public Instructions, on 07.07.08. Going by Ext.P5, the subject of the meeting was the dilapidated condition of the school building. Petitioner submits that he appeared for the meeting but the meeting was adjourned to 11.07.08 and according to him, the meeting was again adjourned. 5. Petitioner contends that while the meeting has not taken place, according to him, without any material, the 3rd respondent W.P.C.No. 25235 OF 2008 -:3:- issued Ext.P7 to the DPI, the 4th respondent, suggesting that the school be taken over by the Government. The reasons which made the 3rd respondent to make such a statement are also stated in Ext.P7. Apparently, in pursuance to Ext.P7, the 4th respondent issued Ext.P8 to the 3rd respondent to take steps for disqualifying the petitioner. Pursuant to Ext.P8, the 3rd respondent issued Ext.P6, disqualifying the petitioner. Following Ext.P6, the 2nd respondent issued Ext.P9, implementing the same. It is in this background this Writ Petition has been filed challenging Exts.P6 to P9. 6. By Ext.P9, the new Manager appointed is none other than the 1st respondent, one of the sisters of the petitioner. According to the learned senior counsel appearing for the 1st respondent, in pursuance to Ext.P9, she has taken charge, completed extensive repairing works and on that basis fitness certificate also has been issued for the year 2008-09 and based on which salary also has been released to the teachers. On merits the 1st respondent would contend that Ext.P3 show cause notice has been issued and it is that show cause notice which lead to Ext.P6 and ultimately to Exts.P8 and P9. Counsel contends that Ext.P3 satisfies the requirement of W.P.C.No. 25235 OF 2008 -:4:- Rule 7 of Chapter III, KER and therefore his removal is a valid action taken by the respondents. The additional 7th respondent, another sister of the petitioner, is also supporting the 1st respondent. The Parent Teachers Association, which got impleaded as additional 6th respondent, is also supporting the 1st respondent. 7. The 1st respondent has drawn my attention to Ext.R1(d), the judgment of the Judicial First Class Magistrate, Alathur convicting the petitioner in CC No.132/94 for offence punishable under Section 324 IPC and sentencing him for imprisonment. On this basis he contended that the very conviction itself is a good enough to invoke the powers under Chapter III of Rule 7. Learned counsel for the petitioner contradicts the same by referring to Ext.P11, the judgment of the appellate court acquitting the petitioner. 8. Of the several contentions raised before me, I think that, I need only to examine the contention of the petitioner about the invalidity of Exts.P6 to P9 due to the non-compliance of the requirements of Rule 7 of Chapter III Kerala Education Rules. Rule 7(1) of Chapter III KER reads as follows: “7. Action against Manager or Educational Agency W.P.C.No. 25235 OF 2008 -:5:- in the vent of mismanagement etc:- (1) In the event of mismanagement, malpractice, corruption or maladministration, gross negligence of duty, or disobedience of Departmental instruction on the part of the Manager [or denial of appointment to a qualified thrownout teacher who has a rightful claim for reappointment by virtue of his/her holding the post earlier or denial of promotion to a teacher who is rightful claimant for promotion by the manager] [or conviction of the manager for an offence involving moral turpitude] it shall be open to the *Director, after giving the Manager a reasonable opportunity to show cause against the action proposed to be taken and after due enquiry, to declare him unfit to hold the office of the Manager in the school or n any other aided school and to require the educational Agency to appoint a suitable person as Manager.” 9. A reading of Rule 7 shows that, on the grounds enumerated therein a Manager can be disqualified. But then, it requires that the Manager should be given a reasonable opportunity to show cause against “the action proposed to be taken”. Thereafter, the DPI or the Deputy Director to whom power has been delegated, should conduct “a due enquiry” before declaring the Manager unfit to hold the office W.P.C.No. 25235 OF 2008 -:6:- of the Manager. 10. In this case, the order of disqualification, Ext.P6, is one passed by the 3rd respondent. Ext.P6 has given seven reasons for such an action. However, if Ext.P3 is to be taken as show cause notice, one of the allegations in Ext.P6 was the non-production of fitness certificate for the year 2007-08. It is not clear as to whether before issuing Ext.P6, Ext.P4 fitness certificate has been taken note of by the Deputy Director. Rest of the allegations in Ext.P6, do not find a place in Ext.P3. Therefore Ext.P6 is not preceded with notice as contemplated to Rule 7 referred above except in so far as the lack of fitness certificate is concerned and even in this respect, Ext.P6 does not disclose as to whether Ext.P4 has been taken note of. If that be so, the proceedings which lead to Ext.P6, cannot be said to be in compliance with Rule 7 of Chapter III KER. 11. For that reason, Exts.P6 to P9 deserve to be set aside, but, however, without prejudice to the right of the 3rd respondent to take fresh action in compliance with the provisions contained in Rule 7 of Chapter III KER. It is clarified that since the 1st respondent has taken charge as Manager immediately following Ext.P9 and W.P.C.No. 25235 OF 2008 -:7:- according to her, she has done extensive repairing of the school, which is also confirmed by additional respondents 6 and 7, I think that, even though I have set aside Exts.P6 to P9, it would be beneficial to the school to maintain the status quo until fresh proceedings are completed. 12. Therefore, I direct that it will be open to the 3rd respondent to initiate fresh proceedings against the petitioner, and in the meanwhile the status quo as on date in so far as the managership of the 1st respondent shall be maintained. Proceedings, if any, shall be initiated and completed against the petitioner, as expeditiously as possible, at any rate within three months from the date of production of a copy of this judgment. It is clarified that in the meanwhile, the 1st respondent shall not make any appointments and her continuance or otherwise will depend upon the fresh order to be passed by the Deputy Director. (ANTONY DOMINIC, JUDGE) ttb W.P.C.No. 25235 OF 2008 -:8:-