Sabitha K.V vs The State Of Kerala
2021 Latest Caselaw 4046 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

    THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

                      WP(C).No.37814 OF 2015(B)


PETITIONER:

               SABITHA K.V.
               AGED 58 YEARS
               SREYAS, PADANNAKKAD P.O,
               KASARAGODE 671314.

               BY ADVS.
               SMT.SUMATHY DANDAPANI (SR.)
               SRI.MILLU DANDAPANI

RESPONDENTS:

      1        THE STATE OF KERALA
               REPRESENTED BY THE SECRETARY TO THE DEPARTMENT OF
               EDUCATION, THIRUVANANTHAPURAM 695 001.

      2        DIRECTOR OF PUBLIC INSTRUCTION
               JAGATHY, THIRUVANANTHAPURAM 695 014.

      3        THE DEPUTY DIRECTOR OF EDUCATION
               CIVIL STATION, KASARAGOD 671 123.

      4        THE DISTRICT EDUCATION OFFICER
               MINI CIVIL STATION, KANHANGAD,
               KASARAGOD 671 315.

      5        THE ASSISTANT EDUCATIONAL OFFICER
               HOSDURG, POST KANJANHANGAD,
               KASARAGOD DISTRICT, 671 315.

      6        SATHEESAN K.V
               VAISHNAV, WEAVERS STREET,
               NILESHWAR 671 314.

               R1 BY GOVERNMENT PLEADER
               R1, R6 BY ADV. SRI.T.K.VIPINDAS

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04.02.2021, ALONG WITH WP(C).21246/2016(E), WP(C).24498/2017(J),
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.37814/2015 & Con. Cases

                                  2

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

   THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

                        WP(C).No.21246 OF 2016


PETITIONER:

               SATHEESAN K.V
               AGED 64 YEARS, S/O. K.V.KUNHAMBU,
               MANAGER,SREE NARAYANA TEACHER TRAINING INSTITUTE
               (SNTTI), PADANNAKKAD, PIN-671 415.

               BY ADV. SRI.T.K.VIPINDAS

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY THE SECRETARY TO THE DEPARTMENT OF
               EDUCATION,THIRUVANANTHAPURAM-695 001.

      2        DIRECTOR OF PUBLIC INSTRUCTION
               JAGATHY, THIRUVANANTHAPURAM-695 014.

      3        THE DISTRICT EDUCATIONAL OFFICER
               MINI CIVIL STATION, KANHANGAD, KASARAGOD-671 315.

      4        THE ASSISTANT EDUCATIONAL OFFICER
               HOSDURG, P.O.KANHANGAD, KASARAGOD DISTRICT-671 315.

      5        SABITHA K.V.
               SREYAS, PADANNAKKAD P.O., KASARAGOD-671 314.

               R1, R5 BY ADV. SRI.MILLU DANDAPANI
               R1-4 BY GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04.02.2021, ALONG WITH WP(C).37814/2015(B), WP(C).24498/2017(J),
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.37814/2015 & Con. Cases

                                  3

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

   THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

                        WP(C).No.24498 OF 2017

PETITIONER:

               SATHEESAN.K.V
               AGED 64 YEARS, S/O.K.V KUNHAMBU, MANAGER,SREE
               NARAYANA TEACHER TRAINING INSTITUTE
               ( SNTTI),PADANNAKAD, PIN 671415

               BY ADVS.
               SRI.T.K.VIPINDAS
               SRI.K.JAJU BABU (SR.)

RESPONDENTS:

      1        THE STATE OF KERALA
               REPRESENTED BY THE SECRETARY TO THE DEPARTMENT OF
               GENERAL EDUCATION, THIRUVANANTHAPURAM, 695001

      2        DIRECTOR OF PUBLIC INSTRUCTION
               JAGATHY, THIRUANANTHAPURAM, PIN 695014

      3        DEPUTY DIRECTOR OF EDUCATION
               KASARAGOD, VIDYA NAGAR,PIN 671123

      4        THE DISTRICT EDUCATION OFFICER
               MINI CIVIL STATION, KANHANGAD,KASARAGOD 671315

      5        THE ASSISTANT EDUCATIONAL OFFICER
               HOSDURG, P.O.KANHANGAD, KASARAGOD DISTIRCT,
               PIN 671315

      6        SABITHA K.V.
               SREYAS, PADANNAKKAD PO,KASARAGOD 671314

               R1 BY GOVERNMENT PLEADER
               R1, R6 BY ADV. SRI.MILLU DANDAPANI
               SRI. P.M.MANOJ - SR.GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04.02.2021, ALONG WITH WP(C).37814/2015(B), WP(C).21246/2016(E),
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.37814/2015 & Con. Cases

                                      4

                              JUDGMENT

These three writ petitions have arisen

out of a dispute regarding the Managership

of 'Sree Narayana Teachers Training

Institute', Nileshwar and 'Sree Narayana

Aided UP School', Padannakad, (hereinafter

referred to as 'the Schools' for short).

2. It is common ground among the rival

parties that the Schools were originally

owned by their father - Shri.K.V.Kunhambu,

and that subsequent to his death, a partition

deed was registered among the members of the

family, which included their deceased mother

also, keeping the property of the Schools in

common and mandating that as long as the

mother is alive, she will be its Manager.

3. Consequent to the death of the

mother of the petitioner on 12/08/2013, a

question arose that who should be in

management.

4. Smt.Sabitha K.V., the petitioner in WP(C).No.37814/2015 & Con. Cases

W.P(C)No.32814 of 2015, stakes a claim in

preference to all her siblings, who are six

in number, on the strength of an alleged Will

stated to have been executed by their mother,

a copy of which is on record as Ext.P2 in the

said writ petition.

5. Smt.Sabitha asserts that since her

mother, who was the Manager until her death,

had bequeathed the rights of managership to

her, she alone can be appointed as the

Manager; while her siblings, led by the elder

brother Shri.Satheesan K.V., contends that

even if the Will is found to be genuine

(which they do not admit), it would concede

no rights to Smt.Sabitha, since their mother

could not have bequeathed the right of

managership, as if it is a heritable right.

6. Shri.Satheesan, thus impells a claim

to be the Manager of the Schools on the

strength of all his siblings, except

Smt.Sabitha; and he was, in fact, so WP(C).No.37814/2015 & Con. Cases

approved, but with a condition that he shall

not make any appointments to the School. This

order of the competent Educational Authority

was challenged by Shri.Satheesan in

W.P(C)No.21246 of 2016; and while matters

were thus pending, taking note of the

internecine disputes between the rival

parties, Government of Kerala, acting on the

representations of Smt.Sabitha and in

obedience to the directions of this Court in

W.P(C)No.16491 of 2017 filed by

Shri.Satheesan K.V., issued Ext.P23 order

holding that since the disputes between the

parties are unresolved, the Deputy Director

of Education, Kasaragod, will function as the

Manager of the Schools, until such time as

the Bye-law with respect to its management

are properly settled, under the provisions of

the Kerala Education Act and Rules

(hereinafter after referred to as 'the Act'

and 'KER' for short respectively). WP(C).No.37814/2015 & Con. Cases

Shri.Satheesan challenges this order by

filing W.P(C)No.24498 of 2017, wherein, it

has been produced as Ext.P23.

7. In the meanwhile, it transpires that

Shri.Satheesan and his five siblings, except

Smt.Sabitha, approached the District

Educational Officer, Kasaragod, after framing

a Bye-law and sought its approval, but that

proceedings on the same is still pending; and

he thus asserts that, in such circumstances,

Government could not have appointed the

Deputy Director of Education, Kasaragod, as

an interim Manager, since he enjoys the

support of majority of the members of the

Educational Agency, thus he alone being

deserving to have been approved as the

Manager of the Schools.

8. It is in the background of the afore

narrated facts that these writ petitions will

require to be considered by me.

9. I have heard Shri.K.P.Dandapani, WP(C).No.37814/2015 & Con. Cases

learned Senior Counsel, instructed by

Shri.Millu Dandapani, learned counsel

appearing for Smt.Sabitha.K.V. - petitioner

in W.P(C)No.37814 of 2015 and Shri.Jaju Babu,

learned Senior Counsel instructed by

Shri.T.K.Vipindas, learned counsel appearing

for Shri.Satheesan K.V. - petitioner in

W.P(C)Nos.21246 of 2016 and 24498 of 2017.

10. The factual controversy in these

cases is not in a very large compass.

11. Smt.Sabitha, as I have said above,

claims rights to be appointed and approved as

the Manager of the Schools on the strength of

a Will executed by her mother; while

Shri.Satheesan - her brother, stakes a rival

claim on the strength of support from all the

other siblings, who are five in number.

12. Therefore, what I must first

consider is whether Smt.Sabitha can obtain

any exclusive rights over the managership of

the Schools on the strength of the Will of WP(C).No.37814/2015 & Con. Cases

her mother, even assuming that said document

can be treated to be valid in law.

13. In this regard, it is indubitable

that the parties are ad idem that the

properties of the Schools are kept in common

and that all of them are its joint owners.

The mother was allowed, by all the children

subsequent to the death of their father, to

act as the Manager of the Schools and she had

been so approved by the Educational

Authorities under the provisions of the Act

and the KER.

14. It is now well settled that the

managership of a school is not a civil right

but is a statutory one, particularly because

any person who is so appointed will require

to obtain the concurrence of the competent

and statutory Authorities under the Act and

the KER.

15. In that perspective, when the father

of the petitioners died intestate, all his WP(C).No.37814/2015 & Con. Cases

legal heirs became entitled to the property

and this is luculent from the partition deed

executed by them subsequently, wherein, the

properties of the Schools were kept in

common. Obviously, therefore, the Schools

came under the management of a Corporate

Educational Agency. There can be no doubt

about this because these issues have already

been settled by a learned Division Bench of

this Court in Somanatha Pillai v. State of

Kerala [2007 (1) KLT 127] wherein, the

affirmative declaration in law is that "when

a Manager of a School dies and his legal

representative continue in management, they

can only be construed as a Corporate

Educational Agency and not as an Individual

Educational Agency."

16. Pertinently thus, when Shri.K.V.

Kunhambu died, his wife and children became

the Corporate Educational Agency. The

children then allowed the mother, by their WP(C).No.37814/2015 & Con. Cases

express consent, to act as the Manager and

she was so approved by the competent

Educational Authority. However, this could

not have given any right to the mother of the

petitioners to have executed a Will

bequeathing the managership, after her time,

to one of her children, as has been done

through Ext.P2, produced along with

W.P(C)No.37814 of 2015.

17. I am, therefore, certainly of the

view that even if the Will is taken to be

genuine, it would concede no right to

Smt.Sabitha to stake a claim as the exclusive

Manager of the Schools - he, at the best,

being only a member of the Corporate

Educational Agency - which came into being

immediately on the death of her father

Sri.K.V.Kunhambu.

18. That said, it is conceded by both

sides that there is no approved Bye-law for

management as far as the Schools are WP(C).No.37814/2015 & Con. Cases

concerned and that the one which is framed by

Shri.Satheesan and five of his siblings is

now pending approval before the Deputy

Director of Education, Kasaragod, a copy of

which is on record as Ext.P28 in

W.P(C)No.24498 of 2017.

19. Since the parties now say that there

has been no consensus among the group led by

Shri.Satheesan on one side and Smt.Sabitha on

the other, with respect to the Bye-law, I am

of the certain view that the matter should be

considered and concluded by the Deputy

Director of Education, Kasaragod,

appropriately, after giving necessary

opportunities of being heard to both sides.

20. In the meanwhile, I am of the firm

view that, on account of the internecine

disputes between the parties, the position as

governed by Ext.P23 order of the Government -

produced along with W.P(C)No.24498 of 2017 -

should continue, since the Deputy Director of WP(C).No.37814/2015 & Con. Cases

Education has been conducting himself as the

Manager of the Schools for the last more than

three years, under its mandate.

Resultantly, I order these writ

petitions directing the Deputy Director of

Education, Kasaragod, to immediately call a

meeting of all the members of the Corporate

Educational Agency and thereafter, grant an

opportunity to Smt.Sabitha to raise

objections to the Bye-law framed by

Shri.Satheesan and five other siblings,

namely Ext.P28 in W.P(C)No.24498 of 2017 and

also be given an opportunity of producing an

independent Bye-law on her own, if she is so

interested; and then assess the same, after

affording necessary opportunities of being

heard to all of them, leading to appropriate

orders approving a final Bye-law for the

management of the Schools in terms of the

applicable provisions of the Act and the KER.

The afore exercise shall be completed by WP(C).No.37814/2015 & Con. Cases

the Deputy Director of Education, Kasaragod,

as expeditiously as is possible, but not

later than four months from the date of

receipt of a copy of this judgment; and until

such time as the resultant order is issued or

until the afore fixed time expires, which

ever is earlier, the Schools will be managed

by the said Authority in terms of Ext.P23 in

W.P(C)No.24498 of 2017.

It is needless to say that any decision

to be taken by the Deputy Director of

Education in terms of the afore directions

will be untrammeled by any of the orders

impugned in these cases, which I do not

propose to set aside formally because of the

fact that they will all become irrelevant

when the afore directions are complied with.

Sd/-

DEVAN RAMACHANDRAN

JUDGE

MC/9.2.21 WP(C).No.37814/2015 & Con. Cases

APPENDIX OF WP(C) 37814/2015 PETITIONER'S/S EXHIBITS:

EXHIBIT P1 EXHIBIT P1. COPY OF THE ORDER NO.K.DIS B2-

13839/78 DATED 7.6.78.

EXHIBIT P2 EXHIBIT P2. COPY OF THE WILL DATED 27.10.09 OF THE MOTHER.

EXHIBIT P3 EXHIBIT P3. COPY OF THE ORDER NO.B3-5536/13 DATED 11.10.13 BY THE 4TH RESPONDENT APPROVING THE APPOINTMENT OF 6TH RESPONDENT AS MANAGER OF THE SCHOOL.

EXHIBIT P3(A) EXHIBIT P3(A). COPY OF THE ORDER NO.C/4653/2013 DATED 31.10.13 BY THE 5TH RESPONDENT APPROVING THE APPOINTMENT OF 6TH RESPONDENT AS MANAGER OF THE SCHOOL.

EXHIBIT P4 EXHIBIT P4. COPY OF THE APPEAL DATED 29.10.13 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT FILED AGAINST EXHIBIT P3 ORDER.

EXHIBIT P4(A) EXHIBIT P4(A). COPY OF THE APPEAL DATED 11.11.13 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT FILED AGAINST EXHIBIT P3(A) ORDER.

EXHIBIT P5 EXHIBIT P5. COPY OF THE SUPPLEMENTARY APPEAL MEMO DATED 23/25.11.13.

EXHIBIT P6 EXHIBIT P6. COPY OF THE HEARING NOTE SUBMITTED BY THE PETITIONER DATED 19.5.14.

EXHIBIT P7 EXHIBIT P7. COPY OF THE ORDER DATED 13.10.14 REJECTING THE APPEAL EXHIBIT P4 PASSED BY THE 2ND RESPONDENT.

EXHIBIT P8 EXHIBIT P8. COPY OF THE REVISION PETITION DATED 14.11.14.

EXHIBIT P9 EXHIBIT P9. COPY OF THE DISMISSAL OF REVISION PETITION BY THE IST RESPONDENT DATED 16.10.15.

EXHIBIT P10 EXHIBIT P10. COPY OF THE ORDER PASSED BY THE DEO DATED 12.11.15.

WP(C).No.37814/2015 & Con. Cases

EXHIBIT P11 TRUE COPY OF THE LETTER NO.B2/4581/2015 DATED 28.7.2015 ISSUED BY THE 3RD RESPONDENT

EXHIBIT P12 TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER TO THE HEARDMASTER, SNTTI NILESHWAR, KASARAGOD, DATED 10.08.2015

EXHIBIT P13 TRUE COPY OF THE INTIMATION ISSUED BY THE 3RD RESPONDENT TO THE 6TH RESPONDENT DATED 22.11.2015

EXHIBIT P11 TRUE COPY OF THE PARTITION DEED BEARING NO.3866 DATED DTD 06.09.2011 WP(C).No.37814/2015 & Con. Cases

APPENDIX OF WP(C) 21246/2016 PETITIONER'S/S EXHIBITS:

EXHIBIT P13 COPY OF THE ORDER NO.K.DIS.B2-13839/78 DTD.7.6.1978 ASSIGNED BY 3RD RESPONDENT.

EXHIBIT P13 COPY OF THE CONSENT LETTER DTD.1.4.2019 ISSUED BY THE SIBLINGS OF THE PETITIONER.

EXHIBIT P13 COPY OF THE ORDER OF THE 3RD RESPONDENT DTD.11.10.2013.

EXHIBIT P13 COPY OF THE ORDER OF THE 4TH RESPONDENT DTD.31.10.2013.

EXHIBIT P13 COPY OF THE ORDER OF THE 2ND RESPONDENT DTD.13.10.2014 ON THE APPEALS AGAINST EXT.P3 AND P4.

EXHIBIT P13 COPY OF THE ORDER OF 1ST RESPONDENT DTD.16.10.2015.

EXHIBIT P13 COPY OF THE ORDER OF THE 3RD RESPONDENT DTD.12.11.2015.

EXHIBIT P13 COPY OF THE LAST PAY CERTIFICATE OF CHANDRAN C. DTD.31.5.2016.

PETITIONER'S/S EXHIBITS:

EXHIBIT R5(A) A TRUE COPY UNREGISTERED WILL DATED 27.10.2009 EXECUTED BY M.V.SATHYABHAMA, REFERRED TO IN THE COUNTER AFFIDAVIT WP(C).No.37814/2015 & Con. Cases

APPENDIX OF WP(C) 24498/2017 PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE ORDER NO. K.DIS.B2-

13839/78 DATED 07.06.1978 ASSIGNED BY THE 4TH RESPONDENT

EXHIBIT P2 TRUE COPY OF THE CONSENT LETTER DATED 01.04.2015 ISSUED BY THE SIBLINGS OF THE PETITIONER

EXHIBIT P3 TRUE COPY OF THE ORDER OF THE 4TH RESPONDENT DATED 11.10.2013

EXHIBIT P4 TRUE COPY OF THE ORDER OF THE 5TH RESPONDENT DATED 31.10.2013

EXHIBIT P5 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 13.10.2014 ON THE APPEALS AGAINST EXHIBIT P3 AND P4

EXHIBIT P6 TRUE COPY OF THE NOTICE DATED 10.11.2014 ISSUED BY THE PETITIONER TO THE 6TH RESPONDENT

EXHIBIT P7 TRUE COPY OF THE REPLY DATED 14.11.2014 ISSUED THE 6TH RESPONDENT TO THE PETITIONER

EXHIBIT P8 TRUE COPY OF THE MINUTES OF THE MEETING DATED 16.11.2014 CONVENED PURSUANT TO EXHIBIT P5 ORDER

EXHIBIT P9 TRUE COPY OF THE NOTICE DATED 15.12.2014 ISSUED BY THE PETITIONER CONVENING MEETING ON 24.12.2014

EXHIBIT P10 TRUE COPY OF THE REPLY DATED 18.12.2014 ISSUED BY 6TH RESPONDENT

EXHIBIT P11 TRUE COPY OF THE MINUTES OF THE MEETING DATED 24.12.2014

EXHIBIT P12 TRUE COPY OF THE MINUTES OF THE MEETING DATED 26.01.2015

EXHIBIT P13 TRUE COPY OF THE ORDER OF 1ST RESPONDENT DATED 16.10.2015

EXHIBIT P14 TRUE COPY OF THE ORDER OF THE 4TH WP(C).No.37814/2015 & Con. Cases

RESPONDENT DATED 12.11.2015

EXHIBIT P15 TRUE COPY OF THE COMMUNICATION NO.

B2/4581/2015 DATED 28.07.2015 ISSUED BY THE 4TH RESPONDENT TO THE PETITOINER

EXHIBIT P16 TRUE COPY OF THE COMMON JUDGMENT IN WPC.NO.

30835/2015, 9424/2016 AND 32375/2016 DATED 02.12.2016

EXHIBIT P17 TRUE COPY OF THE ORDER DATED 17.04.2017 ISSUED BY THE 1ST RESPONDENT

EXHIBIT P18 TRUE COPY OF THE JUDGMENT IN WPC.NO.

16491/2017 DATED 23.05.2017

EXHIBIT P19 TRUE COPY OF THE ORDER OF THIS HON'BLE COURT DATED 13.06.2017 IN RP.NO. 456/2017

EXHIBIT P20 TRUE COPY OF THE NOTICE DATED 16.06.2017 ISSUED BY ADDITIONAL SECRETARY, GENERAL EDUCATION DEPARTMENT

EXHIBIT P21 TRUE COPY OF THE PETITON DATED 10.03.2017 SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 1ST RESPONDENT

EXHIBIT P22 `TRUE COPY OF THE ARGUMENT NOTES FILED BEFORE UNDER SECRETARY, GENERAL EDUCATION DEPARTMENT ON BEHALF OF THE PETITIONER DATED 20.06.2017

EXHIBIT P23 TRUE COPY OF THE ORDER DATED 17.07.2017 ISSUED BY THE 1ST RESPONDENT

EXHIBIT 24 TRUE COPY OF THE JUDGMENT OF THE MUNSIFF COURT, HOSDURG IN OS.NO. 276/2014

EXHIBIT P25 TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 16/11/2014

EXHIBIT P26 TRUE COPY OF THE MINUTES OF THE MEETING DATED 24/12/2014

EXHIBIT P27 TRUE COPY OF THE MINUTES OF THE MEETING DATED 26/01/2015

EXHIBIT P28 TRUE COPY OF THE TRUST DEED DATED 18/03/2015

EXHIBIT P29 TRUE COPY OF THE COMMUNICCATION DATED 14/08/2017 SUBMITTED BY THE PETITIONER. WP(C).No.37814/2015 & Con. Cases

EXHIBIT P30 TRUE COPY OF THE LETTER DATED 5-8-20-19 ISSUED BY HEADMISTRESS, SNAUP SCHOOL.

EXHIBIT P31 TRUE COPY OF THE LETTER DATED 10-6-2019 ISSUED BY HEADMISTRESS, SREE NARAYANA TEACHERS TRAINING INSTITUTE, NILESHWAR