Neelakandan @ Soman vs State Of Kerala
2021 Latest Caselaw 6205 Ker

                   IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                 THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

           MONDAY, THE 22ND DAY OF FEBRUARY 2021 / 3RD PHALGUNA, 1942

                           WP(C).No.16423 OF 2018(C)


PETITIONER:

                 NEELAKANDAN @ SOMAN
                 S/O. KIZHUVEETIL LATE K. KESAVAN NAIR,AGED 71, NOW RESIDING
                 AT CHANDUVARIYATH,NETTISSERY VILLAGE, MUKKATTTUKARA,
                 THRISSURDISTRICT, MANAGER PERINNANAM CENTRAL AIDED L.P.
                 SCHOOL,PERINNANAM, THRISSUR DISTRICT.

                 BY ADV. SRI.T.N.MANOJ

RESPONDENTS:

       1         STATE OF KERALA
                 REPRESENTED BY THE SECRETARY,DEPARTMENT OF EDUCATION,
                 THIRUVANANTHAPURAM-695001.

       2         THE DIRECTOR OF PUBLIC INSTRUCTIONS
                 OFFICE OF THE DPI, JAGATHY,THIRUVANANTHAPURAM-695014.

       3         THE ASSISTANT EDUCATIONAL OFFICER
                 VALAPPAD, THRISSUR DISTRICT -680 651.

       4         T. SANTHAKUMARI
                 D/O. KIZHAKKETHAZATH VEETIL MADHAVIAMMA, SANTHA SADAN,
                 PERINJANAM P.O.,THRISSUR - 680 686.

                 BY ADV. SRI.G.KRISHNAKUMAR
                 BY ADV. SMT.M.L.REMYA


OTHER PRESENT:

                 SRI.P.M.MANOJ - SR.GP

      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.16423 OF 2018(C)

                                     2




                            JUDGMENT

The Manager of "Peinjanam Central Aided L.P. School",

Thrissur -- Sri.Neelakandan, has approached this Court

impugning Ext.P8, as per which, Government has rejected his

request for closure of the said School, under Section 7(6) of the

Kerala Education Act, saying that one of the co-owners of the

property and member of the Educational Agency, namely the 4 th

respondent (who is conceded to be his sister), has objected to

the closure and has offered to run the School, if she is made the

Manager. The petitioner says that Ext.P8 is egregiously

improper since, as is evident from Ext.P9, the Corporate

Educational Agency, which also includes his brother --

Sri.Venugopalakrishnan, has taken a decision to close the

School as early as in the year 2014, since it is now impractical

and not feasible to run it any further.

2. The petitioner says that, in fact, based on the request

made by him as the approved Manager of the School, the

Director of General Education (DGE) has recommended, through

Ext.P5, that the School be closed, recording therein that none of

the students or staff studying and working therein would be WP(C).No.16423 OF 2018(C)

prejudiced by this. The petitioner says that it is without

considering any of these aspects that Government had now

issued Ext.P8; and he, therefore, prays that same be set aside.

3. I have heard Sri.T.N.Manoj, learned counsel

appearing for the petitioner; Sri.G.Krishna Kumar, learned

counsel appearing for the 4th respondent and the learned Senior

Government Pleader, Sri.P.M.Manoj appearing for the official

respondents.

4. In response to the afore submissions made on behalf

of the petitioner, the learned counsel for the 4 th respondent ―

Sri.G.Krishna Kumar, submitted that Ext.P9 is a vitiated

document, since it has been created by the petitioner and

Sri.Venugopalakrishnan, by holding a meeting in the residence

of the latter, in which she could not participate on account of the

advanced age. She submitted that she had informed her brothers

-- who are the Members of the Educational Agency, that she is

willing to participate in the meeting if it is either held in the

School premises or at a convenient place at

Thiruvananthapuram, where she is residing, since she was not in

a position to travel all the way to Tripunithura; but that WP(C).No.16423 OF 2018(C)

disregarding this, they created Ext.P9, making it appear that she

was not present for the meeting. Sri.G.Krishna Kumar,

thereafter added that, going by the Bye-laws, framed for the

management of the School which is also based on the title

documents of its property on which the School is situated, the

School cannot be shutdown nor can its property be used for any

other purpose, since there is a virtual dedication of it made by

their mother, for the purpose of conducting only a School. He,

therefore, contended that Ext.P8 cannot be found to be in error,

since his client had volunteered to run the School and had

dissented to its closure, as requested by the petitioner.

5. The learned Senior Government Pleader,

Sri.P.M.Manoj, submitted that Ext.P8 cannot be faulted because

there was a clear dissension among the Members of the

Corporate Educational Agency - with two of them saying that the

School should be shutdown; while the 4 th respondent

maintaining that she can run it if she is appointed as the

Manager. He submitted that, therefore, Government had no

other option but to issue Ext.P8 and therefore, prayed that this

writ petition be dismissed.

WP(C).No.16423 OF 2018(C)

6. When I analyze the rival contentions as afore, it is

without doubt - it being expressly admitted - that the

management of the School is vested in the petitioner, his brother

- Sri.Venugopalakrishnan and the 4th respondent.

7. Since the Corporate Educational Agency is now in

charge of the School, the petitioner can only be construed to be

its nominated Manager, approved by the competent educational

Authority, as per the request of the said Agency.

8. Obviously, therefore, the petitioner cannot take a

decision on his own to close down the School; but he asserts that

he has the support of his brother - Sri.Venugopalakrishnan and

resultantly, that there is a majority in the Corporate Educational

Agency, as is clear from Ext.P9.

9. That said, however, since Sri.G.Krishna Kumar,

submits that his client was unable to participate in the meeting

that led to Ext.P9, since she is not keeping well and was unable

to travel all the way to Tripunithura and further because the

meeting was not held at the School premises but in the

residence of one of the brothers, I am of the view that these

aspects also ought to have been considered by the Government, WP(C).No.16423 OF 2018(C)

before Ext.P8 order could have been issued in the manner as has

been done now.

10. This is because, the question as to whether the Bye-

laws of the Corporate Educational Agency permits closure of the

School and whether such an action can be taken based on

majority and not unanimity, are relevant issues; which have not

been considered by the Government in any manner in Ext.P8.

11. In the afore circumstances, I cannot find favour with

Ext.P8, though I see that the request of the petitioner has been

recommended by the DGE through Ext.P5.

In the afore circumstances and for the reasons above, I

order this writ petition and set aside Ext.P8; with a

consequential direction to the Government to reconsider the

matter, after affording an opportunity of being heard to all three

Members of the Corporate Educational Agency - either

physically or through video conferencing - and take a decision as

to whether the request of the petitioner, for closure of the

School under Section 7(6) of the Kerala Education Act, can be

acceded to or otherwise. This shall be done by the Government

within a period of four months from the date of receipt of a copy WP(C).No.16423 OF 2018(C)

of this judgment.

Needless to say, when the afore exercise is completed, the

competent Secretary of the Government will closely examine the

Bye-laws of the Corporate Educational Agency, as also any other

document that may be produced before him by the parties, and

decide whether it provides for closure of the School, even when

there is no unanimity among the Members or whether majority

would be sufficient to sanction such a decision. The Secretary

will also advert to the contentions of the 4th respondent, that the

property, in which the School is situated, has been set apart by

the mother solely for the purpose of School and that a change of

such purpose is not permissible, going by the title documents

and such other.

After I dictated this part of the judgment, Sri.T.N.Manoj -

learned counsel for the petitioner, submitted that his client has

also produced Ext.P12 judgment, in O.S.No.1084/2012 on the

files of the Additional Sub Judge, Irinjalakuda, and that this is

also a vital document which may be directed to be considered by

the Government. I certainly, therefore, leave liberty to the

petitioner to produce the said document also, which will be WP(C).No.16423 OF 2018(C)

adverted to by the Government, while the afore exercise is

completed.

Sd/-

                                     DEVAN RAMACHANDRAN

rp                                           JUDGE
 WP(C).No.16423 OF 2018(C)






                                   APPENDIX

PETITIONER'S/S EXHIBITS:

EXHIBIT-P1                 TRUE COPY OF THE BYE LAWS OF CENTRAL L.P. SCHOOL,
                           PERUNNANAM.

EXHIBIT-P2                 TRUE COPY OF THE ORDER APPROVING THE PETITIONER
                           AS THE MANAGER OF THE SCHOOL

EXHIBIT-P3                 TRUE COPY OF THE LETTER DATED 07/01/2018
                           ADDRESSING THE 4TH RESPONDENT

EXHIBIT-P4                 TRUE COPY OF THE REPRESENTATION FILED BEFORE THE
                           DPI

EXHIBIT-P5                 TRUE COPY OF THE REPORT OF THE DPI

EXHIBIT-P6                 TRUE COPY OF THE REPRESENTATION FILED BEFORE THE

SECRETARY, DEPARTMENT OF EDUCATION UNDER SECTION 7 (6) OF THE KERALA EDUCATION ACT

EXHIBIT-P7 TRUE COPY OF THE JUDGMENT DATED 12/01/2018 IN W.P(C) 34340/2017

EXHIBIT-P8 TRUE COPY OF THE ORDER DATED 07/04/2018 OF THE IST RESPONDENT

EXHIBIT-P9 TRUE COPY OF THE MINUTES OF THE MEETING DATED 19/02/2010

EXHIBIT P9(A) TRUE COPY OF THE MINUTES OF THE MEETING DATED 20.01.2012.

EXHIBIT P9(B) TRUE COPY OF THE MINUTES OF THE MEETING DATED 19/01/2014.

EXHIBIT P9(C) TRUE COPY OF THE MINUTES OF THE MEETING DATED 14/01/2016.

EXHIBIT P9(D) TRUE COPY OF THE MINUTES OF THE MEETING DATED 16/01/2018.

EXHIBIT P10 TRUE COPY OF THE NOTICE DATED 25.04.2018 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P11 TRUE COPY OF THE OBJECTIONS FILED TO EXHIBIT P10 NOTICE.

WP(C).No.16423 OF 2018(C)

EXHIBIT P12 TRUE COPY OF THE JUDGMENT IN OS 1084/12 OF THE SUB COURT AT IRINJALAKUDA.

EXHIBIT P13 THE INFORMATION PROVIDED BY THE OFFICE OF THE DEO VALAPPAD DISCLOSING THE STUDENT STRENGTH IN THE SCHOOL FOR THE ACADEMIC YEAR 2018-19.

EXHIBIT P14 TRUE COPY OF CERTIFICATE OF FITNESS ISSUED BY THE ASSISTANT ENGINEER LSGD SECTION PERINJANAM GRAMA PANCHAYAT.

EXHIBIT P15 PAGE NUMBER 11 OF THE MATHRUBHUMI DAILY DATED 12.07.2018, WITH REGARD TO THE NOTIFICATION OF THE SPECIAL DEPUTY COLLECTOR NH-17(LA).

RESPONDENT'S/S EXHIBITS:

EXHIBIT R4(1) TRUE COPY OF THE SETTLEMENT DEED NO. 1667/2000 OF MATHILAKAM S.R.O EXECUTED BY MADHAVI AMMA

EXHIBIT R4(2) TRUE COPY OF THE LETTER DATED 12.1.2016 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.

EXHIBIT R4(3) TRUE COPY OF THE COMMUNICATION DATED 23.1.2016 PREFERRED TO THE AEO, VALAPPAD.

EXHIBIT R4(4) TRUE COPY OF THE HEARING NOTE DATED 26.3.2016 FILED BEFORE THE AEO, VALAPPAD.

EXHIBIT R4(5) TRUE COPY OF THE REPRESENTATION DATED 28.7.2016 PREFERRED TO THE DPI, THIRUVANANTHAPURAM.

EXHIBIT R4(6) TRUE COPY OF THE REPRESENTATION DATED 12.3.2018 PREFERRED TO THE 1ST RESPONDENT.

EXHIBIT R4(7) TRUE COPY OF THE COMMUNICATION DATED 19.2.2018 ISSUED BY THE PRESIDENT, PERINJANAM GRAMA PANCHAYATH OFFICE.