RSA No.730/2020 1/8
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
Wednesday, the 4th day of August 2021 / 13th Sravana, 1943
IA.NO.2/2021 IN RSA NO. 730 OF 2020
OS 209/2013 OF THE PRINCIPAL MUNSIFF COURT,KANNUR
AS.26/2019 OF THE SUB COURT,KANNUR
PETITIONER/APPELLANT:
K.BALAKRISHNAN, S/O.GOPALAN, AGED 64 YEARS,RETIRED TEACHER, RESIDING
AT SOPANAM, PUTHIYAPARAMBA, P.O.VALAPATTANAM, KANNUR-670 010.
RESPONDENTS/RESPONDENTS:
1. N.K.JAYAKUMAR, S/O.KUMARAN, AGED 64 YEARS,N.K.HOUSE, PUTHIYATHERU,
P.O.CHIRAKKAL, KANNUR-670 011.
2. K.SANIL,S/O.SIVADASAN,AGED 56
YEARS,SREEHARI,P.O.RAMATHERU,KANNUR-670 004
3. M.RANJITH,S/O.NARAYANAN,AGED 56 YEARS,EDAYATH
HOUSE,P.O.RAMATHERU,KANNUR-670 004
4. DESHA SEVA SANGHAM,CHIRAKKAL,REP.BY ITS
PRESIDENT,N.SREEKUMAR,S/O.KUMARAN,RESIDING AT N.K.BROTHERS,CHIRAKKAL
AMSOM,DESOM,P.O.CHIRAKKAL,KANNUR-670 011.
5. N.SREEKUMAR,S/O.KUMARAN,AGED 61 YEARS,RESIDING AT
N.K.BROTHERS,CHIRAKKAL AMSOM,DESOM,P.O.CHIRAKKAL,KANNUR-670 011.
6. M.BHASKARAN, S/O.RAMAN, AGED 76 YEARS,RESIDING AT DEEPAM, ONAPARAMBA
ROAD, P.O.CHIRAKKAL, KANNUR-670 011.
7. N.SADANANDAN, S/O.NARAYANAN,AGED 70 YEARS, RESIDING AT AISHWARYA,
VALAPATTANAM, KANNUR-670 010.
8. K.SREENIVASAN, S/O.GOPALAN, AGED 88 YEARS, KAKKEN HOUSE,
VIDYADHIVARDHINI VAYANASALA, P.O.AZHEEKKODE SOUTH, KANNUR-670 011.
9. K.RAMACHANDRAN, S/O.GOPALAN MASTER, GOPAL NIVAS, NEAR PANCHAYATH
OFFICE, CHIRAKKAL, KANNUR-670 011.
10. K.DIVAKARAN, S/O.KANNAN, AGED 78 YEARS,N.K.HOUSE, P.O.CHIRAKKAL,
KANNUR-670 011.
11. K.K.SREESAN, S/O.SANKARAN, AGED 62 YEARS,SANKARAN VYDIAR KATA,
P.O.CHIRAKKAL, KANNUR-670 011.
12. K.K.SREEKANTH, S/O.KUMARAN, AGED 64 YEARS,HARIPURAM, PALLIKULAM,
P.O.CHIRAKKAL, KANNUR-670 011.
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to stay all further
proceedings in filling up the 4 posts of teachers by making any fresh
appointment pending disposal of the RSA.
This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof, and upon hearing the arguments
of SRI.K.P.DANDAPANI, Senior Advocate along with SRI. MILLU DANDAPANI,
SRI.ROY THOMAS (MUVATTUPUZHA), Advocates for the petitioner and of
SRI.R.SREEHARI, Advocate for Respondents 1 to 3, M/S. P.B.KRISHNAN, SABU
RSA No.730/2020 2/8
GEORGE, P.B.SUBRAMANYAN, MANU VYASAN PETER, Advocates for Respondents 4
and 5 and of SRI.MATHEW KURIAKOSE, Advocate for the Respondents 6 to 9,
the court passed the following:
RSA No.730/2020 3/8
N.ANIL KUMAR,J.
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I.A.NO.2 OF 2021 IN RSA NO.730/2020
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Dated this the 4th day of August,2021
ORDER
This appeal was admitted by this Court on 3.11.2020 on the following substantial questions of law:-
i. "Whether the Sub Court, Kannur is justified in invoking the law of limitation especially Section 21(1) and Article 58 of the Limitation Act in the absence of specific pleading in the written statement that the relief is hit by law of limitation? ii. Whether the relief of withdrawal of the suit prayed in I.A.No.5704/2014 in O.S.No.513/2013 can be converted as a prayer for abandoning the suit by the trial court to the prejudice of the plaintiff and in such event whether it will act as an impediment in prosecuting subsequent suit?"
On the very same day, this Court passed an order in IA No. 2/2020 as under:-
"It is submitted by the learned counsel for the appellant and the respondents 4 and 5 that the election of the Society has been scheduled to 08.11.2020 by convening a General Body meeting. As all arrangements for the conduct of the election are over the respondent No.5 is permitted to convene the general body meeting as well the proposed election on 08.11.2020 of respondent No.4, Society. But the elected members of the managing committee can take charge as the RSA No.730/2020 4/8 R.S.A.No.730 of 2020 :-2-:
office bearers of the Society only after disposal of I.A.No.2 of 2020 pending in this appeal.
It is made clear that till the newly elected committee takes charge, the existing managing committee will remain in administration of this Society/Sangam."
2. It is alleged that the fifth respondent in this I.A. is acting as the Manager of the school while his appointment has not been approved by the Department. According to the appellant, while so, during the months of April-May,2021, four teachers retired from service of the school and fifth respondent is now taking urgent steps to fill up the vacancies by new appointments. Hence, the present application has been filed to stay all further proceedings in filling up the four posts of teachers by making any fresh appointment pending disposal of this appeal.
3. The fifth respondent filed counter contending that his appointment as Manager was RSA No.730/2020 5/8 R.S.A.No.730 of 2020 :-3-:
approved by order No.K.Dis.848/99 dated 20.2.1999. That order was set aside by the AEO through order No.C/262/2012 dated 17.07.2012. Hence, he challenged that order in WP(C) No.17207/2012 A. According to him, the writ petition was allowed and he was permitted to continue as Manager. Although the matter was carried in appeal, the judgment was confirmed in writ appeal as well. He also contended that appointment orders have been issued to four teachers Sri.Basil.T.H., Smt.Aswathi.K.P., Smt.Remya.B.C. and Smt.Rajitha Krishnan on 1.6.2021. He would state that those teachers have joined duty and are conducting online classes as per Covid protocol.
4. Heard Sri.K.P.Dandapani, the learned Senior counsel for the appellant and RSA No.730/2020 6/8 R.S.A.No.730 of 2020 :-4-:
Sri.P.B.Krishnan, the learned counsel for respondents 4 and 5.
5. In view of the order passed on 3.11.2020 in IA No.2/2020, it is clear that the existing managing committee will remain in administration of the Society/Sangam till the newly elected committee takes charge. W.P(C) No.17207/2012 was filed by the 5 th respondent against the petitioner and the State challenging an order passed by the Assistant Educational Officer approving the transfer of management of Desaseva U.P.School in favour of the petitioner in his capacity as President of Desaseva Sangham from the date of order till 31.1.2013. A learned Single Bench of this Court allowed the writ petition on 11.3.2013. Consequently Ext.P9 was set aside. The petitioner therein was permitted to continue as Manager of the school RSA No.730/2020 7/8 R.S.A.No.730 of 2020 :-5-:
in terms of Ext.P1 and the parties were directed to approach the civil court for conducting the General Body meeting of the society making it clear that the AEO shall be bound by such decision of the civil court. The petitioner challenged the judgment before the Division Bench in W.A.No.628/2013 whereby the Division Bench dismissed the writ appeal relegating the parties to the civil forum, if they are so advised to resolve their disputes. In view of the interim order issued by this Court as well as the judgment of the Division Bench in W.A.No.628/2013, this Court is of the view that the application for stay against the Manager of a school to defeat the rigor of Section 13 of the Kerala Education Act,1958 is apparently unsustainable.
In the result, this I.A. stands allowed in part, making it clear that the appointments made RSA No.730/2020 8/8 R.S.A.No.730 of 2020 :-6-:
during the pendency of this appeal between the parties shall be subject to the outcome of this appeal. In all other respects, the I.A. fails and is dismissed accordingly.
Sd/-
N.ANIL KUMAR, JUDGE MBS/ Hand over the order.
04-08-2021 /True Copy/ Assistant Registrar