P.K.Sukumara Panicker vs The State Of Kerala
2021 Latest Caselaw 2730 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

      MONDAY, THE 25TH DAY OF JANUARY 2021 / 5TH MAGHA, 1942

                      WP(C).No.16052 OF 2020(F)


PETITIONER:

               P.K.SUKUMARA PANICKER
               AGED 62 YEARS
               S/O. LATE KRISHNA PANICKER, KRISHNA SADAN, P O
               NADUVA, PARAPPANANGADI - 676303.

               BY ADVS.
               SRI.B.KRISHNAN
               SHRI.R.PARTHASARATHY

RESPONDENTS:

      1        THE STATE OF KERALA
               REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL
               EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM
               - 695001.

      2        THE DIRECTOR OF GENERAL EDUCATION
               DIRECTORATE OF GENERAL EDUCATION, JAGATHY,
               THIRUVANANTHAPURAM - 695001.

      3        THE ADDITIONAL DIRECTOR OF GENARAL EDUCATION,
               DIRECTORATE OF GENERAL EDUCATION, JAGATHY,
               THIRUVANANTHAPURAM - 695014.

      4        THE DEPUTY DIRECTOR OF EDUCATION,
               MALAPPURAM - 676303.

      5        THE DISTRICT EDUCATIONAL OFFICER,
               PARAPPANANGADI, MALAPPURAM - 676303.

      6        THE ASSISTANT EDUCATIONAL OFFICER,
               PARAPPANANGADI, MALAPPURAM - 676303.


OTHER PRESENT:

               SRI. SUNIL KUMAR KURIAKOSE (GP)

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
25.01.2021, ALONG WITH WP(C).28547/2020(P), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
 WP(C).16052/2020 &
WP(C).28547/2020
                                 2


            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

   MONDAY, THE 25TH DAY OF JANUARY 2021 / 5TH MAGHA, 1942

                     WP(C).No.28547 OF 2020(P)


PETITIONERS:

      1        K.SHEENA
               AGED 39 YEARS
               UPPER PRIMARY SCHOOL TEACHER (UPST),
               AUP SCHOOL,
               CHIRAMANGALAM, NEDUVA P.O.,
               PARAPPANANGADI, MALAPPURAM 676 303

      2        K.VIJINA
               LOWER PRIMARY SCHOOL TEACHER (LPST),
               AUP SCHOOL,
               CHIRAMANGALAM, NEDUVA P.O.,
               PARAPPANANGADI, MALAPPURAM 676 303

      3        S.NIVYA
               LOWER PRIMARY SCHOOL TEACHER (LPST),
               AUP SCHOOL,
               CHIRAMANGALAM, NEDUVA P.O.,
               PARAPPANANGADI,
               MALAPPURAM 676 303

               BY ADVS.
               SRI.S.M.PREM
               SRI.P.RAMACHANDRAN (PALAKKAD)
               SRI.H.NARAYANAN

RESPONDENTS:

      1        STATE OF KERALA
               REP.BY THE SECRETARY TO GOVERNMENT,
               GENERAL EDUCATION DEPARTMENT,
               SECRETARIAT,
               THIRUVANANTHAPURAM 695 001

      2        DIRECTOR OF GENERAL EDUCATION
               JAGATHY, THYCAUD P.O.,
               THIRUVANANTHAPURAM 695 014

      3        DISTRICT EDUCATIONAL OFFICER
               THIRURANGADI, MALAPPURAM 676 306

      4        EX-OFFICIO MANAGER
 WP(C).16052/2020 &
WP(C).28547/2020
                              3

             AUP SCHOOL,
             CHIRAMANGALAM AND
             ASSISTANT EDUCATIONAL OFFICER,
             PARAPPANANGADI,
             MALAPPURAM 676 303


     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
25.01.2021, ALONG WITH WP(C).16052/2020(F), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 WP(C).16052/2020 &
WP(C).28547/2020
                                 4




                            JUDGMENT

[WP(C).16052/2020 & WP(C).28547/2020]

Dated this the 25th day of January 2021

I am considering these two writ petitions together since

they involve common questions regarding the managership and

the appointments made in "A.U.P. School," Chiramangalam,

Malappuram .

2. W.P.(C) No.16052/2020 has been filed by Sri. P.K.

Sukumara Panicker, who stakes a claim to be the Manager of the

School; while W.P.(C) No.28547/2020 has been filed by three

teachers appointed to the said School as Upper Primary School

Teacher and Lower Primary School Teachers.

3. Sri. Sukumara Panicker claims that he is solely

entitled to be the Manager of the School, but that the Additional

Director of General Education (ADGE) has issued Ext.P8 order

produced in W.P.(C) No. 16052/2020 refusing to grant him

approval, saying that the Bye-laws and the Trust Deed with respect

to the management, signed by all the legal heirs of the deceased

father of the petitioner, must be first produced. Sri. Sukumara

Panicker submits that these directions in Ext.P8 are egregiously WP(C).16052/2020 & WP(C).28547/2020

improper, since, through Exts. P1 and P7 judgments of this Court,

it had been made it clear that those legal heirs of his father,

namely the siblings, who are not willing to sign the Trust Deed or

the Bye-laws need not be included in the management and that if,

after they are heard by the competent Educational Authority, it is

found that they are either unwilling to join the Trust or if they do

not respond to a notice for such hearing, then necessary action

with respect to the management of the School must be taken

forward, which is to mean that the petitioner must be approved.

4. The petitioner says that, however, without

adverting to any of the directions in Exts. P1 and P7 judgments

and in particular the fact that Ext. P2 Trust Deed with respect to

the management of the School - has already been placed before

this Court, the ADGE has now rejected his claim for specious

reasons, as recorded in Ext. P8 order. Sri. Sukumara Panicker,

therefore, prays that Ext. P8 in W.P.(C) No. 16052/2020 be set

aside and that he be directed to be approved as the Manager of

the School.

5. As far as the petitioners in W.P.(C) No.28547/2020

is concerned, they claim that they were appointed as Upper

Primary School Teacher and Lower Primary School Teachers WP(C).16052/2020 & WP(C).28547/2020

respectively on various dates in the academic year 2016-2017.

According to them, even though their appointments are fully

eligible to be approved, the Educational Authorities have rejected

the same, finally culminating in Ext. P9 order, wherein the only

reason stated is that since they have been accommodated against

additional division vacancies - into which only protected teachers

could have been appointed - their approval cannot be granted,

unless they are reappointed to the retirement vacancies which are

now available. They say that in this order it has been clearly

recorded that there is one vacancy in the post of Lower Primary

School Teacher and three in the post of Upper Primary School

Teacher available in the School and therefore, pray that the

Manager be directed to appoint them into these and the official

respondents be ordered to approve their appointments at the

earliest.

6. I have heard Sri. R. Parthasarathy, learned counsel

appearing for Sri. P.K. Sukumara Panicker - petitioner in W.P.(C)

No. 16052/2020; Sri. S.M. Prem, appearing for the petitioners in

W.P.(C) No. 28547/2020 and Sri. Sunil Kumar Kuriakose, learned

Government Pleader appearing on behalf of the official

respondents.

WP(C).16052/2020 & WP(C).28547/2020

7. I find substantial force in the submissions

Sri. Parthasarathy as far as the claim of Sri. P.K. Sukumara

Panicker is concerned, because in Ext.P1 judgment, a learned

Judge of this Court has recorded that the disputes between the

legal heirs of the petitioner's father, namely late Krishna Panicker,

have been settled and that they have all agreed to manage the

School in terms of a Bye-law to be presented before the

Educational Authorities and to be got approved. It appears that,

later, Ext.P2 Bye-laws was presented before the Authorities, but

there was some confusion as to whether it can be approved

because five of the legal heirs of late Krishna Panicker had not

signed the same. The petitioner contends that those siblings who

did not sign Ext.P2 are not interested in running the School and

therefore, that he approached this Court again and obtained Ext.P7

judgment, wherein, directions were issued to the Director of Public

Instructions [subsequently redesignated as the Director of General

Education (DGE)] to hear all the legal heirs of late Krishna

Panicker, thus leading to a decision as to if Ext. P2 can be

approved. He says that it was also made clear in Ext. P7 that if

any of the legal heirs do not respond to the notices of the Director

of Public Instructions, to be issued for this purpose, or conveys WP(C).16052/2020 & WP(C).28547/2020

that they have no objection to the formation of the Trust without

them being on it, said Authority must take a final decision thereon

as per law.

8. However, in spite of the afore specific directions,

Ext. P8 has been now issued by the ADGE, whereby, he has

directed the District Educational Officer (DEO) to produce the Trust

Deed signed by all the legal heirs of late Krishna Panicker, as also

the Bye-laws and certain other documents. Obviously, therefore,

this is clearly contrary to the directions in Exts.P1 and P7

judgments and I cannot, hence, grant approval to the said order.

9. That said, as is also manifest from Ext.P8, the

notices issued by the ADGE to the siblings of the petitioner, who

have not signed Ext.P2 Bye-laws, appear to have been not

responded to; and perspicuously, therefore, the said Authority

ought to have complied with the directions in Ext.P7 judgment and

ought to have granted approval to Ext. P2 Bye-laws. This, not

having been done, I certainly cannot find favour with Ext. P8 order

in W.P.(C). No.16052/2020.

10. Now coming to W.P.(C) No.28547/2020, the only

objection raised against granting approval to the appointments of

the petitioners therein is that the Manager had appointed them to WP(C).16052/2020 & WP(C).28547/2020

additional division vacancies and that unless they are re-appointed

to available retirement vacancies, such benefits cannot be granted.

It is also stated in Ext. P9 of the said writ petition that since there

is a dispute regarding the management of the School, the DEO is

unable to offer approval to the petitioners' appointments.

11. When I consider the conspectus of the

circumstances available in both these cases, it is limpid that the

question of managership of the School cannot be now allowed to

hang fire on account of the specific directions in Exts. P1 and P7

judgments, produced along with W.P.(C) No.16052/2020,

especially because, in Ext. P8 order therein, it is recorded that all

the legal heirs of late Krishna Panicker have been notified and that

some of them did not respond. Ineluctably, hence, the ADGE ought

to have granted approval to Ext. P2 Bye-laws rather than have

issued Ext. P8 therein.

12. That being so said, when the approval of

late Sukumara Panicker is now incumbent, it is only in the fairness

of things that he be directed to consider the appointments of the

petitioners to the retirement vacancies as per law and subject to

their possessing necessary qualifications and credentials, so that

the objections in Ext.P9 in W.P.(C) No. 28547/2020 can be allayed. WP(C).16052/2020 & WP(C).28547/2020

I also record the submission of Sri. Parthsarathy that if his client is

approved as the Manager of the school, he is willing to take all

necessary steps to have the appointments of the petitioners in

W.P.(C) No.28547/2020 approved, if necessary, by reappointing

them to the available retirement vacancies in the School.

In the afore circumstances, I order these writ petitions

in the following manner:

a) W.P.(C) No. 16052/2020 is allowed, setting aside

Ext. P8 order therein; with a consequential direction

to the DGE/ADGE to approve the appointment of the

petitioner as the Manager, in terms of the directions

in Exts. P1 and P7 judgments. This exercise shall be

completed by the DGE/ADGE as expeditiously as is

possible, but not later than three weeks from the

date of receipt of a copy of this judgment.

b) On Sri. Sukumara Panicker being so approved

as the Manager, he shall immediately issue orders-

subject to the qualifications and credentials of the

petitioners in W.P.(C) No.28547/2020 - to appoint

them in the available retirement vacancies and will

forward the proposals for their approval to the DEO WP(C).16052/2020 & WP(C).28547/2020

without any delay, but not later than one month from

the date on which he assumes charge as the

Manager, in terms of my directions afore.

c) On Sri. Sukumara Panicker forwarding the

proposals for approval of the teachers in W.P.(C) No.

28547/2020 as afore, the DEO will take necessary

action thereon and will communicate the resultant

order to the parties without any delay, but not later

than two months from the date on which the

proposals are received by him.

Sd/-

DEVAN RAMACHANDRAN JUDGE SMF/25.01 WP(C).16052/2020 & WP(C).28547/2020

APPENDIX OF WP(C) 16052/2020 PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN WP(C) NO.

2238/2018 DATED 1.8.2018 OF THE HON'BLE HIGH COURT.

EXHIBIT P2 TRUE COPY OF THE DEED OF TRUST DATED 29.10.2018.

EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT DATED 4.5.2019.

EXHIBIT P4 TRUE COPY OF THE LETTER DATED 14.07.2019 OF THE 4TH RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS NO.

G2/14068/2019/DGE DATED 24.08.2019.

EXHIBIT P6 TRUE COPY OF THE CONSENT LETTER OF THE 5 HEIRS SIGNED ON 18.09.2019.

EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN WP(C) 27678/2019 DATED 12.12.2019.

EXHIBIT P8 TRUE COPY OF THE ORDER DATED 25.06.2020 ISSUED BY ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTION COMMUNICATED THROUGH THE ASSISTANT EDUCATION OFFICER.

WP(C).16052/2020 & WP(C).28547/2020

APPENDIX OF WP(C) 28547/2020 PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 1.6.2016 APPOINTING THE 1ST PETITIONER AS UPSA

EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER DATED 1.6.2016 APPOINTING THE 2ND PETITIONER AS LPSA

EXHIBIT P3 TRUE COPY OF THE APPOINTMENT ORDER DATED 1.6.2016 APPOINTING THE 3RD PETITIONER AS LPSA

EXHIBIT P4 TRUE COPY OF CIRCULAR NO.J2/57/2019/G.EDN. DATED 8.3.2019 ISSUED BY GOVERNMENT

EXHIBIT P5 TRUE COPY OF THE APPEAL MEMORANDUM FILED BY 1ST PETITIONER BEFORE 3RD RESPONDENT- DEO

EXHIBIT P6 TRUE COPY OF THE APPEAL MEMORANDUM FILED BY 2ND PETITIONER BEFORE 3RD RESPONDENT

-DEO

EXHIBIT P7 TRUE COPY OF THE APPEAL MEMORANDUM FILED BY 3RD PETITIONER BEFORE 3RD RESPONDENT- DEO

EXHIBIT P8 TRUE COPY OF JUDGMENT DATED 27.5.2020 IN W.P.(C) NO.9311 OF 2020

EXHIBIT P9 TRUE COPY OF ORDER NO.B1/2373/2020 DATED 19.8.2020 ISSUED BY THE 3RD RESPONDENT - DEO

EXHIBIT P10 TRUE COPY OF JUDGMENT DATED 25.7.2017 PASSED IN W.A.NO.2290 OF 2015

EXHIBIT P11 TRUE COPY OF JUDGMENT DATED 4.8.2011 PASSED IN W.P.C.NO.28577 OF 2008

EXHIBIT P12 TRUE COPY OF JUDGMENT DATED 19.2.2013, PASSED IN W A NO. 178 OF 2012, WHICH IS REPORTED IN 2013 (2) KLT 88 //TRUE COPY// PA TO JUDGE