P.S.Sasikumar vs State Of Kerala
2021 Latest Caselaw 700 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

     FRIDAY, THE 08TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942

                       WP(C).No.23759 OF 2020(T)


PETITIONER:

               P.S.SASIKUMAR
               AGED 51 YEARS
               S/O. SIVAN NAIR, F.O. BUILTECH GREENS,
               MANAPULIKAVU, KUNNATHURMEDU, PALAKKAD-13.

               BY ADVS.
               SRI.U.BALAGANGADHARAN
               SMT.S.ANJUSHA

RESPONDENTS:

      1        STATE OF KERALA,
               GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT
               (ANNEX), THIRUVANANTHAPURAM-695001.

      2        THE DIRECTOR OF GENERAL EDUCATION,
               (FORMER DIRECTOR OF GENERAL EDUCATION),
               THIRUVANANTHAPURAM-695014.

      3        THE DEPUTY DIRECTOR OF EDUCATION,
               CIVIL STATION, PALAKKAD-678001.

      4        THE ASSISTANT EDUCATIONAL OFFICER,
               ALATHUR, PALAKKAD-678541.

      5        THE MANAGER,
               KARUNA UPPER PRIMARY SCHOOL, THENNILAPURAM,
               ALATHUR-678542.

      6        THE PRESIDENT,
               MAHADEVA EDUCATIONAL AND CHARITABLE SOCIETY,
               (SOCIETY REGISTERED UNDER TRAVANCORE COCHIN
               CHARITABLE INSTITUTIONS ACT 1955), KARIKKODE PO,
               VAIKKOM, KOTTAYAM DISTRICT-686610

               SR.GP - NISHA BOSE

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
08.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.23759 OF 2020

                                         2




                                 JUDGMENT

This writ petition is filed seeking the following prayers:

"(1) Issue writ in the nature of mandamus commanding the second respondent to consider Ext.P3 application for transfer of management of 5th respondent school to the petitioner untrammeled by objections in Ext.P7.

(2) Call for the records leading to Ext.P7 and set aside the same by issuing writ in nature of certiorari.

(3) Issue writ in the nature of mandamus commanding the second respondent not to insist for consent of staff of the School for transfer of management and also do not insist for notarized affidavit of the transferee Manager.

(4) Declare that no consent of staff of the School is required for transfer of management running school involving ownership under Rule 5A of Chapter III of KER

2. Heard the learned counsel for the petitioner and the learned

Government Pleader.

3. It is submitted by the learned counsel for the petitioner that the

application preferred by the petitioner for permission for effecting a

transfer of ownership of the school and change of management under

Rule 5A of Chapter III, KER has been rejected on the ground that the WP(C).No.23759 OF 2020

consent of the staff of the school is not appended with the application.

It is further stated in Ext.P7 that the notarized affidavit of the

transferee manager is not produced along with the application. Ext.P7

also states that the approval for appointment of the prior manager is

also not found along with the application.

4. The learned counsel for the petitioner submits that all the

documents required by the Rules have been produced by the

petitioner. It is submitted that the notarized affidavit of the transferee

manager will also be made available. It is further submitted that there

is no provision in the Rules for a specific consent by the staff and that

the DPI can consider whether the transfer is likely to affect the staff

adversely and pass orders on merits in the application. The decisions

of Division Bench of this Court in Kesava Kurup v. State of Kerala

[1988 (1) KLT 77] and P.G.Madhavan v. P.K.Santhakumari Amma

and others [1994 KHC 259] are relied on by the learned counsel for

the petitioner to contend that the issue of any adverse effect of the

transfer of management on the staff is liable to be considered by the

DPI while considering an application under Rule 5A. The Division

Bench in P.G.Madhavan v. P.K.Santhakumari Amma (cited supra) WP(C).No.23759 OF 2020

had held that the interest of the staff can only be their interest as

members of the staff of the schools under the educational agency and

that the provisions of Rule 5A protect the rights of the staff and of the

claimants for appointment in the school. It is therefore contended

that the refusal to consider the application on the ground that there is

no specific consent issued by the staff of the school is untenable.

5. The learned Government Pleader would submit that a Circular

has been issued as early as in 1987 providing that the consent of the

teachers of the school should accompany the application. It is

submitted that in the format of the application also, the issue whether

the teachers have consented to the change of managership is included.

6. I have considered the contentions advanced. Rule 5A specifically

provides that no change of management of an aided school involving

change of ownership shall be effected except with the prior

permission of the Director. It is further provided that the Director

may grant such permission unless the grant of such permission will, in

his opinion, adversely effect the working of the institution and the

interest of the staff and the person to whom the management is

transferred. It is therefore evident that discretion is vested on the WP(C).No.23759 OF 2020

Director to grant or refuse permission on the ground stated in the

Rule.

7. Having considered the provisions of the Rules as well as the

binding decisions of the Division Bench, I am of the opinion that the

Director who is duty bound to consider an application for prior

permission for change of management under Rule 5A cannot insist

that the application will not be considered unless there is a consent

expressed by all the teachers of the school. The Director is empowered

to consider whether there is any adverse effect on the staff of the

school. However, this is an aspect which is to be looked into at the

time of considering the application for prior permission for change of

management. The application cannot be refused to be considered on

the ground that a consent by the staff does not accompany the same.

8. In the above view of the matter, there will be a direction that in

case the petitioner resubmits the application along with all required

documents except the consent of the teachers, the application shall be

considered on its merits by the Director. The Director shall consider

the specific issue whether such transfer will be against the interest of

the staff of the institution. Appropriate orders shall be passed after WP(C).No.23759 OF 2020

hearing all concerned within a period of two months from the date of

receipt of a copy of this judgment.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE NP WP(C).No.23759 OF 2020

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF DOCUMENT NO.731/2020 DATED 05/03/2020 OF SRO, ALATHUR.

EXHIBIT P2 A TRUE COPY OF ORDER DATED 14/10/2020 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P3 A TRUE COPY OF APPLICATION FOR CHANGE OF MANAGEMENT SUBMITTED JOINTLY BY THE PETITIONER AND 5TH RESPONDENT TO SECOND RESPONDENT DATED 05/03/2020.

EXHIBIT P4 A TRUE COPY OF LETTER OF PETITIONER TO 4TH RESPONDENT DATED 13/05/2020.

EXHIBIT P5 A TRUE COPY OF CERTIFICATE DATED 24/04/2020 ISSUED BY THE SI OF POLICE, TOWN SOUTH POLICE STATION.

EXHIBIT P6 A TRUE COPY OF SOLVENCY CERTIFICATE ISSUED BY THE VILLAGE OFFICER, MATHUR DATED 13/03/2020.

EXHIBIT P7 A TRUE COPY OF LETTER DATED 14/09/2020 ISSUED BY THE SECOND RESPONDENT TO 4TH RESPONDENT.

EXHIBIT P8 A TRUE COPY OF STATUTORY APPEAL DATED 20/09/2020 SUBMITTED BY THE PETITIONER TO FIRST RESPONDENT.

EXHIBIT P9 A TRUE COPY OF LETTER OF THE AEO ALATHUR DATED 26/06/2020 ISSUED TO THE PETITIONER.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R4(a) TRUE COPY OF THE APPLICATION DATED 05.03.2020

EXHIBIT R4(b) TRUE COPY OF COVERING LETTER OF THE APPLICATION DATED 05.03.2020

EXHIBIT R4(c) TRUE COPY OF THE COVERING LETTER DATED 30.06.2020 AND PAGE 1 OF THE APPLICATION WP(C).No.23759 OF 2020

EXHIBIT R4(d) TRUE COPY OF PAGE 2 OF THE APPLICATION AS PER COVERING LETTER DATED 30.06.2020