Kerala High Court
P.Ahammed Koya vs The Director Of General Education on 26 August, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
FRIDAY, THE 26TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944
WA NO. 1162 OF 2022
AGAINST THE ORDER DATED 11.08.2022 IN W.P.(C)24894/2022 OF
HIGH COURT OF KERALA
APPELLANT/PETITIONER:
P.AHAMMED KOYA
MANAGER, RAHMANIA HIGHER SECONDARY SCHOOL,
AWH OFFICE, M SQUARE COMPLEX, PAVAMANY ROAD,
KOZHIKODE - 673 001.
BY ADVS.
P.RAVINDRAN (SR.)
M.R.SABU
LAKSHMI RAMADAS
APARNA RAJAN
SREEDHAR RAVINDRAN
RESPONDENTS/RESPONDENTS:
1 THE DIRECTOR OF GENERAL EDUCATION,
(HIGHER SECONDARY EDUCATION),
HOUSING BOARD BUILDING, SANTHI NAGAR,
THIRUVANANTHAPURAM - 695 001.
2 THE DISTRICT EDUCATIONAL OFFICER
TAZHEKKOD, KOZHIKODE - 673 004.
OTHER PRESENT:
SRI SAIGI JACOB PALATTY-SR. GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 26.08.2022, ALONG WITH WP(C).NO.24894/2022, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
WA NO.1162 OF 2022 & WP(C) NO.24894 OF 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
FRIDAY, THE 26TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944
WP(C) NO. 24894 OF 2022
PETITIONER:
P.AHAMMED KOYA
MANAGER, RAHMANIA HIGHER SECONDARY SCHOOL,
AWH OFFICE, M SQUARE COMPLEX, PAVAMANY ROAD,
KOZHIKODE - 673 001.
BY ADVS.
P.RAVINDRAN (SR.)
M.R.SABU
LAKSHMI RAMADAS
APARNA RAJAN
SREEDHAR RAVINDRAN
RESPONDENT/S:
1 THE DIRECTOR OF GENERAL EDUCATION,
(HIGHER SECONDARY EDUCATION),
HOUSING BOARD BUILDING, SANTHI NAGAR,
THIRUVANANTHAPURAM - 695 001.
2 THE DISTRICT EDUCATIONAL OFFICER
TAZHEKKOD, KOZHIKODE - 673 004.
SRI SAIGI JACOB PALATTY-SR. GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 26.08.2022, ALONG WITH WA.1162/2022, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
ALEXANDER THOMAS & SHOBA ANNAMMA EAPEN, JJ.
==================
W.A.No.1162 of 2022
[arising out of the impugned order dated 11.08.2022 in
W.P.(C).No.24894 of 2022]
&
W.P.(C).No.24894 of 2022
==================
Dated this the 26th day of August, 2022
JUDGMENT
ALEXANDER THOMAS, J.
The afore-captioned Writ Appeal No.1162 of 2022 arises out of
the impugned interim order dated 11.08.2022 rendered by the
learned Single Judge in W.P.(C).No.24894 of 2022. Both the Writ
Appeal and the Writ Petition (Civil) have come up for consideration
before us. Hence, both these cases are disposed of on the basis of this
common judgment.
2. Heard Sri.P.Ravindran, learned Senior Counsel instructed
by Sri.M.R.Sabu, learned counsel appearing for the appellant in
W.A/petitioner in W.P.(C) and Sri.Saigi Jacob Palatty, learned Senior
Government Pleader appearing for the respondents in W.P.(C).
3. The order under challenge in the instant writ proceedings
W.A.No.1162 of 2022 & W.P.(C).No.24894 of 2022
- : 2 :-
is the one at Ext.P9 order dated 19.07.2022 rendered by the 1 st
respondent-The Director of General Education whereby, it has been
ordered that 20% management quota seats for admissions to Aided
Higher Secondary Schools mentioned in that order will stand merged
with the open merit quota seats for the respective Schools, in view of
the pendency of the management dispute in those respective
management Schools.
4. We have already taken a view as per the common
judgment dated 25.08.2022 rendered in W.A.No.1138 of 2022 and
W.P.(C).No.25095 of 2022 as well as the common judgment dated
25.08.2022 rendered in W.A.No.1042 of 2022 and W.P.(C).No.23858
of 2022 that, mere pendency of management dispute by itself may not
be a valid ground for merger of the management quota seats with the
open merit quota seats in those Schools, as the factum of the reality of
the status of the management Schools, does not get obliterated
merely on account of pendency of the management dispute. Further,
we have also noted that, in such cases, endeavour could be made to
evolve a reasonable criteria only for the purpose of filling up of the
management quota seats in those Schools, so that the right conferred
W.A.No.1162 of 2022 & W.P.(C).No.24894 of 2022
- : 3 :-
to them by the Government, by setting apart 20% management quota
seats, is effectuated in a feasible manner.
5. The facts of these cases are broadly as follows: It is stated
that the petitioner is the approved Manager of the Rahmania Higher
Secondary School, Kozhikode and that he was appointed as the
Manager of the School in the year 1977 and that he is continuing as
such ever since. Further, it is stated that, the administration of the
School and its property are now under a Receiver appointed by the
Civil Court since 08.04.2010. It is also averred that, the Receiver has
issued orders directing that the Manager is to continue in the Office.
It is further noted that there has been change of Receivers, and all the
Receivers so far appointed as well as the present Receiver appointed
by the Civil Court now continuing in the office, have consistently
intimated the 2nd respondent-District Educational Officer (DEO) that
the petitioner, as the Manager, can continue in Office. Hence, it is
seen that, change in the office of the Court Receiver has not affected
the continuance of the Manager even now. Penultimate orders passed
by the Court Receiver, directing continuance of the present Manager,
is Ext.P7 rendered on 31/12/2018 and on this basis, the petitioner is
W.A.No.1162 of 2022 & W.P.(C).No.24894 of 2022
- : 4 :-
continuing as the Manager even now. That thereafter, the 1 st
respondent - The Director of General Education has issued the
impugned proceedings as per Ext.P9 dated 19/07/2022 directing
that, in view of the pendency of management disputes, the 20%
management quota seats for admission to Plus Two courses in the
petitioner's School and certain other Schools will stand merged with
the open merit quota seats. After the receipt of Ext.P9 dated
19/07/2022, it is seen that the Receiver, who is appointed by the
Court and who is continuing in the office now, has sent Ext.P10 letter
dated 29/07/2022 intimating the 2nd respondent - DEO that, the
petitioner is even now continuing in the office of Manager and the
said factum of his Manager's position is beyond any doubt or
ambiguity. It appears that, inspite of Ext.P10 letter dated
29/07/2022 sent by the Court Receiver, the respondents have not
responded to the same. Further, it appears that most of the
management quota seats have now been filled up by the respondents
in the open merit quota seats.
6. When the matter initially came up for consideration, the
learned Senior Judge had passed an order dated 02/08/2022 in the
W.A.No.1162 of 2022 & W.P.(C).No.24894 of 2022
- : 5 :-
WP(C), wherein the main contentions of the petitioner have been
recorded, especially the one based on Ext.P7, and the plea that the
petitioner is the Manager who is still continuing in the office and
accordingly, time was granted to the respondents to furnish
instructions. Later, when the matter came up on 11/08/2022, it was
submitted by the respondents before the learned Single Judge that,
management quota seats were converted to open merit quota seats on
01/08/2022 and allotment in the converted seats commenced on
03/08/2022. Further, it is also stated that the educational authorities
have not formally approved the appointment of the petitioner as the
Manager of the School concerned, and that it is only on the basis of
the orders issued by the Receiver that the petitioner has been
functioning as the Manager. Accordingly, this Court ordered that
there is no scope for granting interim relief. Being aggrieved by the
impugned interim order dated 11/08/2022 rendered in the W.P.(C),
the petitioner has preferred the instant intra court appeal, which has
resulted in W.A.No.1162/2022. Based on the submissions of the
parties, both the Writ Appeal and the main matter in the W.P.(C)
have been posted before us.
W.A.No.1162 of 2022 & W.P.(C).No.24894 of 2022
- : 6 :-
7. We had given time to the respondents to furnish
instructions in the matter to the learned Senior Government Pleader
as regards the vacancies available in the open merit quota seats.
Today, when the matter has been taken up for consideration, it is
submitted by Sri.Saigi Jacob Palatty, learned Senior Government
Pleader, on the basis of the instructions of the respondents, that there
are 4 courses at the Higher Secondary level in the petitioner's School,
viz, (i) Bio-Maths (ii) Computer Science (iii) Humanities and
(iv) Commerce, each having total sanctioned seats of 180, 180, 60 and
60 respectively. Further, it is pointed out that, thus the 20%
management quota seats allotted to the petitioner's School would
come to 36, 36, 12 and 12 seats respectively for each of these 4
courses. It is also stated before us that, as of now, no vacancies are
available to fill up the management quota seats for Bio-Maths course
and the vacancies available in Computer Science Course, Humanities
Course and Commerce Course are 4, 7 and 4 seats respectively, that
could be availed in the management quota.
8. A larger contention has been raised before us by
Sri.P.Ravindran, learned Senior Counsel instructed by Sri.M.R.Sabu,
W.A.No.1162 of 2022 & W.P.(C).No.24894 of 2022
- : 7 :-
learned counsel appearing for the petitioner/appellant, that the
1st respondent - The Director of General Education has no
jurisdiction to pass the proceedings in the nature of Ext.P9 dated
19/07/2022 directing the merger of the management quota seats
with the open merit quota seats, merely on the pendency of
management dispute. The substratum of this argument is that, the
abovesaid management quota seats have been conferred on the basis
of a considered policy decision taken by the competent authority of
the State Government as per G.O.(MS).No.121/2022/G.EDN dated
07/07/2022, and that since the said right is conferred by the State
Government, none other than the State Government have the
jurisdiction to take away the said management quota seats by passing
an order in the nature of Ext.P9, even if it is assumed that the
decision is otherwise valid. Further that, the 1 st respondent - The
Director General Education, who is subordinate to the State
Government, has no jurisdictional competence to take a decision in
the nature of Ext.P9 unilaterally, and that the respondents do not
have any case that the decision reflected in Ext.P9 is only a decision of
the State Government and which is only communicated by the 1 st
W.A.No.1162 of 2022 & W.P.(C).No.24894 of 2022
- : 8 :-
respondent - The Director of General Education.
9. After hearing both sides, we are of the view that this larger
contention need not be resolved by us in view of the orders proposed
to be passed by us. This is primarily so, as there does not seem to be
any doubt or dispute that the petitioner has been permitted to
function as the Manager of the School even after appointment of the
Court Receiver. All the Court Receivers appointed are former District
Judges who have consistently taken the view that the petitioner can
be permitted to continue as the Manager.
10. The case set up by the respondents is that, the
appointment of the petitioner as the Manager of the School has not
been formally approved by the educational authorities concerned.
The learned Senior Counsel appearing for the petitioner would point
out that, the appointment of the petitioner as the Manager of the
School has been approved as early as on 25.03.1977 by the 2 nd
respondent-DEO as per Ext.P1 proceedings and the said proceedings
at Ext.P1 have not been altered in the manner known to law, so as to
disapprove or derecognize the approved managership of the
petitioner. It is pointed out that, in view of litigative proceedings, the
W.A.No.1162 of 2022 & W.P.(C).No.24894 of 2022
- : 9 :-
administration of the School was under a Court Receiver since the
year, 2010. Further, we see that, all the Court Receivers appointed so
far are former District Judges, who have concurrently taken the stand
that the petitioner can continue as the Manager of the School.
The penultimate intimation sent by the Court Receiver is the one at
Ext.P7 letter dated 31.12.2018 addressed to the 2 nd respondent-DEO,
intimating that the petitioner is to continue as the Manager of the
School. Even after the issuance of Ext.P9 order dated 19.07.2022
issued by the 1st respondent - The Director of General Education, the
Court appointed Receiver has issued Ext.P10 letter dated 29.07.2022,
making it clear like the day light that the petitioner is to function as
the Manger of the School.
11. In the light of the above conspectus of facts, we fail to
understand as to how the respondents can hold that there is a
management dispute, so as to warrant the merger of the management
quota seats in the open merit quota seats for admission to the Plus
Two courses in the petitioner's School. Even assuming for a moment
that, the approval of the petitioner as the Manager of the School, as
per Ext.P1 issued as early as on 25.03.1977, has been subsequently
W.A.No.1162 of 2022 & W.P.(C).No.24894 of 2022
- : 10 :-
affected by the management disputes, the Court Receiver appointed
by the Civil Court has unambiguously held that the petitioner is to
continue as the Manager in the School. In the light of these aspects, it
is only to be held that, the view taken by the 1 st respondent in Ext.P9
so as to detrimentally affect the petitioner's School is, to say the least,
unreasonable and arbitrary.
12. In that view of the matter, it is ordered that the
impugned Ext.P9 order dated 19.07.2022 issued by the
1st respondent - The Director General of Education, to the limited
extent, it is directed as against Serial No. 13 thereof, which is the
petitioner's School, will stand quashed and set aside. However, in
holding the relief, it may not be proper for this Court to direct the
filling up of the management quota seats other than the one now
available, as third party rights would be affected in respect of the
students already admitted. Hence, it is ordered that the petitioner can
fill up the abovesaid remaining available vacancies of 4 seats, 7 seats
and 4 seats respectively in Computer Science Course, Humanities
Course and Commerce Course as the management quota seats by
admitting eligible students in terms of the prospectus. Action in this
W.A.No.1162 of 2022 & W.P.(C).No.24894 of 2022
- : 11 :-
regard may be duly completed by the petitioner without any further
delay. After filling up of the seats, intimation in that regard may be
given by the petitioner, both to the Court Receiver as well as to the
respondents, along with a copy of this judgment.
13. In the judgments rendered by us yesterday in the
aforementioned cases, we had imposed certain conditions that the
petitioners therein should sponsor 5 or 10 applicants, as the case may
be, for each of the available vacancies in the management quota to the
DEO, who was directed to make admissions on the basis of inter se
merit of such applicants. We have not issued any such directions in
this case, as we have quashed the impugned order herein at Ext.P9 on
merits. This is so, primarily due to the following aspects viz.,
(i) There is no rival claimant to the petitioner for the
managership of the school;
(ii) Ext.P1 order rendered as early as on 25.03.1977 by R2-DEO
granting approval to the managership of the petitioner has
not been altered till now in the manner known to law;
(iii) All the Court Receivers appointed by the Civil Court have
consistently intimated to the Department that the petitioner
W.A.No.1162 of 2022 & W.P.(C).No.24894 of 2022
- : 12 :-
is to continue as the Manager of the School, as evident even
from Ext.P7, and
(iv) Even after the issuance of the impugned Ext.P7 order, the
Court Receiver has issued Ext.P9 order intimating the
respondents that the petitioner is to continue as the
Manager of the School, etc.
With these observations and directions, both the Writ Appeal
and the W.P.(C) will stand disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
SHOBA ANNAMMA EAPEN, JUDGE
AS
APPENDIX OF WA 1162/2022
PETITIONER'S ANNEXURES:
ANNEXURE A1 TRUE COPY OF THE GOVERNMENT ORDER GO(MS)
NO.121/2022/GEDN DATED 7/7/2022.
ANNEXURE A2 TRUE COPY OF THE RELEVANT EXTRACT OF THE
PROSPECTUS FOR ADMISSION TO PLUS ONE COURSES
FOR THE YEAR 2022-23.
W.A.No.1162 of 2022 & W.P.(C).No.24894 of 2022
APPENDIX OF WP(C) 24894/2022
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT
NO.K.DIS 6895/77/B1 DATED 25.3.1977
EXHIBIT P2 TRUE COPY OF THE COMMUNICATION OF THE
RECEIVER TO THE DIRECTOR OF PUBLIC
INSTRUCTION NO.AWH 13-1 /RSH/ 10-11 DATED
10.04.2010
EXHIBIT P3 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT
NO.B1/7012/07/K.DIS DATED 10.01.2008
EXHIBIT P4 TRUE COPY OF THE ORDER OF THE DIRECTOR OF
PUBLIC INSTRUCTION NO.M5.3751/08/DPI DATED
16.07.2009
EXHIBIT P5 TRUE COPY OF THE ORDER OF THE GOVERNMENT
NO.1205/R2/12/G.EDN DATED 27.10.2015
EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN WPC
NO.36956/2015 DATED 07.08.2019
EXHIBIT P7 TRUE COPY OF THE ORDER OF THE RECEIVER NO.AWH
625-A/ ESTT./2018 DATED 31.12.2018
EXHIBIT P8 TRUE COPY OF THE COMMUNICATION OF THE PUBLIC
INFORMATION OFFICER DEO, KOZHIKODE TO
SRI.MOHAMMED JAFFER NO.B2/2120/2022 DATED
08.04.2022
EXHIBIT P9 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT
DATED 19.07.2022 NO.I.C.T CELL/1771/2/DGE-
HSE/2022
EXHIBIT P10 TRUE COPY OF THE COMMUNICATION OF THE
RECEIVER TO THE DEO, KOZHIKODE NO.AWH-
HO/4563/2022 DATED 29-07-2022.
EXHIBIT P11 RELEVANT EXTRACT OF THE PROVISIONAL LIST IN
PHYSICS, CHEMISTRY, BIOLOGY, MATHEMATICS
W.A.No.1162 of 2022 & W.P.(C).No.24894 of 2022
COURSE FOR THE YEAR 2022
EXHIBIT P12 RELEVANT EXTRACT OF THE PROVISIONAL LIST IN
BUSINESS STUDIES, ACCOUNTANCY, ECONOMICS,
COMPUTER APPLICATIONS COURSE FOR THE YEAR
EXHIBIT P13 RELEVANT EXTRACT OF THE PROVISIONAL LIST IN
HISTORY, ECONOMICS, POLITICAL SCIENCE,
GEOLOGY COURSE FOR THE YEAR 2022
EXHIBIT P14 RELEVANT EXTRACT OF THE PROVISIONAL LIST IN
PHYSICS, CHEMISTRY, MATHEMATICS, COMPUTER
SCIENCE COURSE FOR THE YEAR 2022
