Kerala High Court
Gospel For Asia vs State Of Kerala And Others on 23 September, 2024
Author: Murali Purushothaman
Bench: Murali Purushothaman
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
MONDAY, THE 23RD DAY OF SEPTEMBER 2024/1ST ASWINA, 1946
WP(C) NO. 27233 OF 2011
PETITIONER:
GOSPEL FOR ASIA
REPRESENTED BY ITS MANAGING TRUSTEE MOST
REV.DR.K.P.YOHANNAN, METROPOLITAN BISHOP,
BELIEVERS CHURCH
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER
MR.JACOB POTHEN,
AGED 51, S/O. MR.T.K.POTHEN, ADMINISTRATOR,
GOSPEL FOR ASIA AND BELIEVERS CHURCH
RESIDING AT THERADIYIL HOUSE, NIRANAM WEST P.O,
THIRUVALLA TALUK
PATHANAMTHITTA DISTRICT, KERALA STATE.
BY ADVS.
P.HARIDAS
S.SIKKY
BIJU HARIHARAN
SHIJIMOL M.MATHEW
SHIJIN P.C
RISHIKESH HARIDAS
RESPONDENTS:
1 THE PRINCIPAL SECRETARY
DEPARTMENT OF GENERAL EDUCATION,
GOVERNMENT SECRETARIAT, ANNEX - II
THIRUVANANTHAPURAM - 695 001.
2 DIRECTOR OF PUBLIC INSTRUCTIONS
OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTIONS,
THIRUVANANTHAPURAM - 695 001.
3 DISTRICT EDUCATIONAL OFFICER
ATTINGAL - 695 101.
4 SRI.R.M.PARAMESHWARAN PILLAI ALIAS
R.M.PARAMESWARAN, MULAVANA HOUSE,
THIRUMALA P.O., RESIDING AT D-77,
SREECHITRA NAGAR, PANGODE,
THIRUMALA P.O., THIRUVANANTHAPURAM - 695 006.
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5 DIRECTOR OF GENERAL EDUCATION
OFFICE OF THE DIRECTOR OF GENERAL EDUCATION
HOUSING BOARD BUILDING,
THIRUVANANTHAPURAM - 695 001.
6 DEPUTY DIRECTOR OF EDUCATION,
OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION,
KILLIPPALAM CHALAI P.O,
THIRUVANANTHAPURAM - 695 036.
7 REGIONAL DEPUTY DIRECTOR OF EDUCATION,
OFFICE OF THE REGIONAL DEPUTY DIRECTOR OF
EDUCATION, UNIVERSITY OF KERALA
SENATE HOUSE CAMPUS,
PALAYAM, THIRUVANANTHAPURAM - 695 033.
SRI. C.N PRABHAKARAN - SR.GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 21.12.2023, ALONG WITH WP(C).29302/2011 & 6890/2012,
THE COURT ON 23.09.2024 DELIVERED THE FOLLOWING:
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3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
MONDAY, THE 23RD DAY OF SEPTEMBER 2024/1ST ASWINA, 1946
WP(C) NO. 29302 OF 2011
PETITIONERS:
1 V.UNNI, S/O. VASU, AGED 62 YEARS
PTA VICE PRESIDENT,
MULAMANA HIGH SCHOOL-HIGHER SECONDARY SCHOOL,
ANAKUDY P.O.,
VAMANAPURAM,
THIRUVANANTHAPURAM DISTRICT.
2 INDULAL, S/O. CHELLAPPAN PILLAI
AGED 46 YEARS, STAFF SECRETARY,
MULAMANA HIGH SCHOOL - HIGHER SECONDARY SCHOOL,
ANAKUDY P.O., VAMANAPURAM,
THIRUVANANTHAPURAM DISTRICT.
BY ADV SRI.RAJIT
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY,
GENERAL EDUCATION,
SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 DIRECTOR OF PUBLIC INSTRUCTIONS
JAGATHY,
THIRUVANANTHAPURAM DISTRICT- 695 002.
3 DEPUTY DIRECTOR OF EDUCATION
SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
4 THE MANAGER, MULAMANA H.S-HSS
ANAKUDY P.O.,
VAMANAPURAM,
THIRUVANANTHAPURAM DISTRICT - 695 234.
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5 GOSPEL FOR ASIA
REPRESENTED BY ITS MANAGING TRUSTEE
REV.DR.K.P.YOHANNAN, METROPOLITAL BISHOP,
BELIEVERS CHURCH, NIRANAM WEST P.O.,
THIRUVALLA TALUK,
PATHANAMTHITTA DISTRICT - 687 301.
BY ADVS.
SRI.P.HARIDAS
SMT.LIJI KUTTAPPAN
S.SIKKY
SRI. C.N PRABHAKARAN - SR. GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 21.12.2023, ALONG WITH WP(C).27233/2011 AND 6890/2012,
THE COURT ON 23.09.2024 DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
MONDAY, THE 23RD DAY OF SEPTEMBER 2024/1ST ASWINA, 1946
WP(C) NO. 6890 OF 2012
PETITIONER:
SHAJI KUMAR K.R
UNIT PRESIDENT,
NON VOCATIONAL LECTURERS ASSOCIATION,
MULAMANA VOCATIONAL HIGHER SECONDARY SCHOOL
UNIT, ANAKUDY.P.O,
VAMANAPURAM,
THIRUVANANTHAPURAM DISTRICT.
BY ADVS.
SRI. P.RAVINDRAN (SR.)
SMT. APARNA RAJAN
SRI. M.R.SABU
RESPONDENTS:
1 GOVERNMENT OF KERALA
REPRESENTED BY SECRETARY,
GENERAL EDUCATION, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 DIRECTOR OF PUBLIC INSTRUCTIONS
JAGATHY,
THIRUVANANTHAPURAM - 695 002.
3 THE SECRETARY
DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
4 THE MANAGER
MULAMANA VOCATIONAL HIGHER SECONDARY SCHOOL
UNIT, ANAKKUDY.P.O,
VAMANAPURAM,
THIRUVANANTHAPURAM - 695 606.
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5 GOSPEL FOR ASIA
REPRESENTED BY ITS MANAGING TRUSTEE,
REV.DR.K.P. YOHANNAN, METROPOLITAL BISHOP,
BELIEVERS CHURCH, NIRANAM WEST.P.O,
THIRUVALLA TALUK,
PATHANAMTHITTA DISTRICT - 689 621.
BY ADVS.
ELVIN PETER P.J.
SRI.P.HARIDAS
SMT.LIJI KUTTAPPAN
S.SIKKY
GOURI BALAGOPAL
ABHIJITH.K.ANIRUDHAN
K.R.GANESH
SRI. C.N PRABHAKARAN - SR. GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 21.12.2023, ALONG WITH WP(C).27233/2011 AND 29302/2011,
THE COURT ON 23.09.2024 DELIVERED THE FOLLOWING:
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7
JUDGMENT
[WP(C) Nos.27233 & 29302/2011 & 6890/2012]
Since common issues arise for consideration in
these writ petitions, they are disposed of by this
common judgment. For the sake of convenience,
unless otherwise expressly indicated, the documents
referred to in this judgment will be as obtaining in
W.P.(C) No.27233 of 2011.
2. This writ petition is filed by Gospel for Asia, a
religious charitable trust (hereinafter referred to as 'the
Trust' in this common judgment). According to the
Trust, they purchased Mulamana H.S.S and V.H.S.S
Vamanapuram, an aided School (hereinafter referred to
as 'the School') from Sri.R.M.Parameswaran, its
individual Manager and owner as per Ext.P1 sale deed
No.425/2007 dated 19.04.2007. It is stated that the
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application for mutation is pending consideration
before the Village Officer concerned. After the
execution of Ext.P1 sale deed, the Managing trustee of
the petitioner Trust submitted Ext.P3 application for
change of management of the School before the
Director of Public Instruction (now Director of General
Education) (hereinafter referred to as 'the Director')
along with Ext.P4 covering letter dated 02.06.2008. In
Ext.P3 application, the reason for change of
management is shown as change of ownership. The
Director returned Ext.P3 application by Ext.P5
communication requiring the Managing Trustee to re-
transmit the application through the District
Educational Officer (DEO) along with original
documents duly recommended and countersigned by
the DEO. The documents to be attached along with the
application for change of management were also
mentioned therein. The petitioner Trust states that, in
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terms of Ext.P5, the Trust had, vide Ext.P6, resubmitted
the application before the DEO for recommendation,
counter signature and onward transmission to the
Director. Since the DEO did not act upon Ext.P6, the
Managing Trustee submitted Ext.P7 representation
before the Director and the DEO. The petitioner Trust
states that the Director and the DEO are not taking
steps to approve the change of management due to
the influence of the Manager/previous owner who
wants to illegally continue as the Manager and to
conduct administration and make appointments in the
School. In the said circumstances this writ petition was
filed by the Trust on 13.10.2011 for direction to the
Director to grant permission to approve the change of
management of the School in favour of the Trust.
Later, interlocutory application Nos.2 and 4 of 2022
were filed to accept additional documents and I.A. No.5
of 2022 was filed for amendment of the writ petition,
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which were allowed by this Court on 04.07.2022. In
the writ petition, as amended, it is stated that on
17.06.2022, the Managing Trustee had submitted
Ext.P8 representation before the Director stating that
the Manager has not obtained permission for alienation
of the property of the School as contemplated under
Section 6 of the Kerala Education Act (for short, 'the
Act') and the permission of the Director under Rule 5A
of Chapter III of Kerala Education Rules (for short,
'KER') for change of management of the School, and
requesting the Director to accord approval under
Section 6 of the Act and Rule 5A of Chapter III of KER.
The Trust had also submitted Ext.P9 representation
before the Deputy Director of Education and Ext.P10
representation dated 17.06.2022 before the Regional
Deputy Director of Education. Ext.P11 representation of
even date was submitted before the Principal Secretary
to Government, General Education Department
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requesting to take over the management of the School.
The Trust had also preferred Ext.P14 representation
dated 22.06.2022 before the Principal Secretary,
General Education Department requesting to accord
retrospective sanction for transfer of School under
Section 6 of the Act and change of management under
Rule 5A of Chapter III of KER. It is contended that the
Manager is mismanaging the affairs of the School and
appointments are made after receiving illegal
gratifications. Accordingly, an additional prayer is
sought in the writ petition for direction to the official
respondents to consider the representations filed by
the Trust pending before them.
3. The petitioners in this writ petition are the
respectively the Vice President of the Parent Teachers
Association and the Staff Secretary of the School. They
are aggrieved by the decision of the Manager to
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transfer the management of the School to the Trust
without the sanction of the Director. It is contended
that the Manager, without considering the interests of
the Teachers and students, has transferred the
property in which the School stands to the Trust solely
on monetary consideration. It is contended that, the
Trust, which is a corporate educational agency, may
transfer the Teachers to other schools under them and
may also take steps to close down the School contrary
to the interests of the staff and the students. It is also
contended that the Trust will only cater to the
requirements of students belonging to a particular
religious community and may utilise the infrastructure
of the School for purposes other than educational. It is
stated that the petitioners had earlier filed W.P.(C)
No.3645 of 2011 before this Court seeking a direction
to the Government and the Director to conduct an
enquiry with regard to the allegation of attempted
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transfer of the property and management of the School
without obtaining permission from the Director as
contemplated under the statute and to direct the
Director to deny permission to the Manager from
transferring the management of the School. A
declaration was also sought making the permission of
the Director mandatory as provided under Section 6 of
the Act and Rule 5A of Chapter III of KER for
transferring the property of an aided School by the
management. The said writ petition was dismissed by
this Court on the ground that the issue raised by the
petitioners is covered against them by the judgment of
this Court in Manager, Koyyode Madrasa U.P.
School Vs. Director of Public Instructions,
Thiruvananthapuram [2010 (4) KHC 705 : ILR 2010
(4) (Ker.706) : 2011 (1) KLT 150]. The petitioners
challenged the judgment in W.P. (C) No.3645 of 2011 in
Writ Appeal No.325 of 2011 and the Division Bench
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held that the previous permission as contemplated
either under Section 6 of the Act or under Rule 5A of
Chapter III of KER is required in the event of a transfer
of either the properties of the School or the
management of the School along with the properties.
The Division Bench also declared that, under sub
section (3) of Section 6 of the Act, any transaction
made in contravention of sub sections (1) or (2) of
Section 6 shall be null and void. However, the Division
Bench observed that except the apprehension of the
petitioners, there is nothing on record which
establishes that there is a transfer falling under either
of the above mentioned provisions and the writ petition
is premature. The Writ Appeal was allowed to the
limited extent of setting aside the judgment under
appeal, leaving open the various questions of law that
arise in the context of transfer. The petitioners state
that against the decision in Manager, Koyyode
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Madrasa U.P. School (supra) a Writ Appeal was
preferred by the Director and the AEO and the Division
Bench though agreed with the contention of the
Director that prior permission is required under Rule 5A
of Chapter III of KER, the Writ Appeal was dismissed on
the ground that the appellants could not establish how
the transfer has adversely affected the interest of
anyone concerned or of the Government. The Special
Leave Petition (SLP) preferred by the State against the
said judgment was dismissed by the Hon'ble Supreme
Court. Therefore, it is contended by the petitioners that
prior permission of the Director under Section 6 of the
Act and under Rule 5A of Chapter III of KER is
mandatory before transferring the property of the
aided school by the Manager and for change of
management. However, the petitioners state that, after
the dismissal of the SLP in Manager, Koyyode
Madrasa U.P. School (supra), the Government issued
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letter No.63167/F2/10/G.Edn. dated 26.07.2011 (Ext.P4
in this writ petition) addressed to the Director
permitting the Director to grant ex-post facto sanction
in cases where change of management of Schools was
effected with change of ownership. The Director was
directed to dispose of the backlog of such cases
expeditiously. The petitioners state that the direction
in the said letter is contrary to the directions in the
judgments referred to above and also against the
statutory mandate under Rule 5A of Chapter III of KER.
Therefore, the petitioners have preferred this writ
petition to quash the letter No.63167/F2/10/G.Edn.
dated 26.07.2011 of the Government and for direction
prohibiting the Manager from transferring the
management of the School without the previous
sanction of the Director. A declaration is also sought to
the effect that prior permission of the Director under
Section 6 of the Act and Rule 5A of Chapter III of KER is
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mandatory before transferring the property of the
aided school by the Manager and for change of
management.
4. This writ petition is filed by the President of
the Non Vocational Lecturers Association of the School
raising contentions similar to those in W.P.(C) No.29302
of 2011.
5. A counter affidavit has been filed on behalf of
the Director in W.P.(C) No.27233 of 2011 wherein
paragraphs 4 and 5 reads as follows:-
"4. .... It is respectfully submitted that the 2nd
respondent's office after perusing the documents
submitted by the Managing Trustee, Gospel for
Asia Trust, Thiruvalla is not proper and the
transferee has not produced the entire
documents in accordance with the relevant rules.
So vide letter No.ET5/46708/08/DPI/N.Dis dated
7.7.2008 the applicant was directed to produce;
i. Title deeds in original for the
immovable property.
ii. List of movable and immovable
properties.
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iii. Solvency certificate.
iv. Site plan.
v. Possession certificate.
vi. Consent statement.
vii. Staff statement.
It can be seen from the letter itself that the file
was returned for resubmission after perusing the
defect.
5. Even though the petitioner has produced
Ext.P7 letter dated 29.7.2011 in the above writ
petition stating that all the documents required
by the 2nd respondent's office vide Ext.P5 letter
was submitted before the District Educational
Officer Attingal for onward transmission to the 2 nd
respondent. It is respectfully submitted that
neither the office of the District Educational
Officer Attingal nor the 2nd respondent's office has
received the said letter along with the application
as stated by the petitioner in the above writ
petition. It is respectfully submitted that the
above submission made by the petitioner is
incorrect as the office of the District Educational
Officer, Attingal has intimated the 2 nd respondent
that they have not received any application for
effecting the change of management of the
school which belongs to the 4 th respondent till
date. It is also submitted that this office has also
is not in receipt of the applications submitted by
the petitioner for effecting change of
management. Hence the contentions and
allegations raised by the petitioner that in spite of
submitting of the requisite applications along with
documents no steps were taken by the 2 nd
respondent is absolutely incorrect and hence
denied."
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6. All the three writ petitions were tagged
together as per order dated 08.12.2011. This Court, on
30.03.2012, passed a common order in the writ
petitions and paragraph 3 thereof reads as follows:-
"3. Going by the counter affidavit filed on
behalf of the Director of Public Instruction, it
can be seen that the application of the
petitioner was found defective and hence it was
returned and they also deny the fact about the
submission of Ext.P7. Therefore, if at all the
petitioner has to proceed with the same, he will
have to cure the defect and to file an affidavit
before this Court about the matter. Only after
filing an affidavit before this Court and getting
orders from this Court, any further action can
will be taken."
7. No affidavit was filed on behalf of the Trust in
terms of the direction of this Court in the above order.
The writ petitions were not brought up for
consideration by the parties for a long time. After
several years, an interlocutory application was filed by
the Manager on 21.12.2021 as I.A No.1 of 2021 in W.P.
(C) No.6890 of 2012 stating that though he had made
an application under Rule 5A of Chapter III of KER for
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change of management in the light of change of
ownership of the School, no orders have been passed
in pursuance of the same, and he has since understood
that the change of management of the School with
change of ownership as proposed would not be in the
best interests of the School and the students, he by
letter dated 21.12.2020 requested the Director to treat
his request under Rule 5A of Chapter III of KER as
withdrawn. The writ petitions were posted for hearing
on 10.03.2022, and the counsel for the Trust objected
to the prayer in the said interlocutory application and
the writ petitions were adjourned for hearing. It was
thereafter that the Trust filed I.A Nos.2 and 4 of 2022 in
W.P. (C) No.27233 of 2011 for accepting Exts.P8 to P14
as additional documents and I.A. No.5 of 2022 for
amending the writ petition incorporating additional
prayer for direction to the respective respondents to
pass orders on Exts.P8 to P11 and P14.
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8. The writ petitions were heard on 04.07.2022
and were taken for orders. However, at the request of
the learned counsel for the Trust, the writ petitions
were posted as 'to be spoken to' on 12.07.2022. In the
meantime, on 07.07.2022, the Trust filed I.A No.6 of
2022 to amend the writ petition further by
incorporating the following additional relief:-
"(i)(b): may direct the 4th respondent or the
officer holding the office of the Manager of
Mulavana Higher Secondary School and
Vocational Higher Secondary School,
Vamanapuram to submit or re-submit the
application for change of management of the
school before the competent authority and to
take all the steps for submission of application
for change of management of school without any
defects."
9. This Court, by order dated 03.08.2022,
dismissed the interlocutory application for amendment
and the relevant portion of the order reads as follows:-
"4. On a perusal of the counter affidavit dated
04.11.2011 filed on behalf of the 2 nd respondent,
it is seen stated therein that respondents 2 and 3
have not received any application for effecting
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the change of the management of the school till
that date. The petitioner has not taken any steps
to cure the defect and to approach this Court at
the relevant time. The prayer for amendment
based on the statement of the learned
Government Pleader is belated and cannot merit
consideration. There is no acceptable reason or
cause shown in the affidavit filed in support of
the I.A as to why the application for amendment
was not made soon after the filing of the counter
affidavit on behalf of the 2 nd respondent wherein
they have stated that the application was not
received in the office of respondents 2 and 3.
5. Further, the prayer sought to be incorporated
as Relief No.(i)(b) is for a direction to the 4 th
respondent Manager to submit or re-submit the
application for change of management of the
school before the competent authority and to
take all the steps for submission of application for
change of management of school without any
defects. It is trite that mandamus can be issued
to the Manager of an aided school to perform any
public duty or statutory duties conferred by the
Kerala Education Rules (for short 'KER').The
direction now sought against the manager by
way of amendment is not in relation to such
duties.
6. Rule 155 of Rules of the High Court of Kerala,
1971 (for short 'the Rules') provides that no
ground shall be relied upon and no relief sought
at the hearing except the grounds taken and
reliefs sought in the Original Petition and the
accompanying affidavit. Since the application for
amendment has been made after the hearing of
the writ petition and when the writ petition was
taken for orders, the same cannot be
entertained."
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10. Heard Sri.P. Haridas, the learned counsel for
the Trust, Sri.Rajit, the learned counsel for the
petitioners in W.P(C) No.29302 of 2011, Sri.P.Ravindran,
the learned senior counsel for the petitioner in W.P.(C)
No.6890 of 2012, Sri.Elvin Peter P.J, the learned counsel
for the Manager and the learned Government Pleader
for the State and the official respondents.
11. The petitioner Trust purchased the School
from Sri.R.M. Parameswaran, the Manager and owner
of the School as per Ext.P1 sale deed No.425/2007
dated 19.04.2007. Ext.P3 is the application for change
of management of the School submitted by the
Managing Trustee. The submission of Ext.P3 application
under Rule 5A of Chapter III of KER is not disputed by
the Director or even by the Manager. However, in the
counter affidavit filed on behalf of the Director, it is
stated that the application for change of management
submitted by the Trust was defective and hence it was
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returned for resubmission after curing the defects.
Ext.P5 is the letter issued by the Director, returning
Ext.P3 application and requiring the Managing Trustee
to re-transmit the application through the DEO along
with original documents duly recommended and
countersigned by the DEO. In the counter affidavit, it is
specifically averred that, after returning the
application, the same was not resubmitted after curing
defects. Ext.P6 document by which the Trust claims
that they have re-presented the application is denied
by the Director. In the said circumstances, this Court,
by order dated 30.03.2012 observed that if at all the
petitioner Trust has to proceed with the application,
they will have to cure the defect and to file an affidavit
before this Court about the matter and only after filing
the affidavit and getting orders from this Court, any
further action can be taken. Evidently, no steps were
taken by the Trust to cure the defects and to file an
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affidavit to the said effect before this Court. The
direction of this Court in the order dated 30.03.2012 is
not complied with by the Trust. After about ten years,
when the Manager approached this Court by filing I.A
No.1 of 2021 in W.P.(C) No.6890 of 2012 producing
Ext.R4(a) request to withdraw the application for
change of management, the petitioner Trust preferred
Exts.P8 to P10 and P14 representations for according
sanction for transfer of property of the School under
Section 6 of the Act and for change of management
under Rule 5A of Chapter III of KER before the Director,
the Deputy Director and the Government. It is also
pertinent to note that, in I.A No.6 of 2022 filed for
amending the writ petition, the prayer sought for was
for a direction to the Manager to submit or resubmit
the application for change of management of the
School before the competent authority. Thus, it cannot
be disputed that the Trust did not resubmit the
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application for change of management as directed in
Ext.P5. Since no valid application under Rule 5A of
Chapter III of KER for change of management of the
School is pending before the DEO or the Director, no
direction can be issued to the 2nd respondent to
consider and approve the change of management of
the School in favour of the Trust. W.P.(C) No.27233 of
2011 filed by the Trust is devoid of merits and is liable
to be dismissed.
12. The issue raised in W.P.(C) Nos.29302 of 2011
and 6890 of 2012 is regarding the legality of the letter
No.63167/F2/10/G.Edn. dated 26.07.2011 which is
respectively marked as Exts.P4 and P5 in the said writ
petition and whereby the Government have directed
the Director to grant ex-post facto sanction in cases
where change of management of Schools was effected
with change of ownership. Here, it is apposite to refer
to Rule 5A of Chapter III of KER which reads as follows:-
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"5A. Change of management involving
change of ownership - (1) Notwithstanding
anything contained in these rules, no change of
Management of any aided school involving
change of ownership shall be effected except with
the previous permission of the Director. The
Director may grant such permission unless the
grant of such permission will, in his opinion,
adversely affect the working of the institution and
the interests of the staff and the person to whom
the Management is transferred.
(2) Any person aggrieved by an order under
sub-rule(1) may, within 30 days from the date of
the receipt of the order, prefer an appeal to the
Government.]
(3) In the case of change of management of a
school involving change of ownership the new
Manager of a corporate or an individual
Educational Agency, shall be bound to absorb any
member who is a claimant under rule 51 A of
Chapter XIV A or is eligible for protection
belonging to teaching and non-teaching staff of
any school of the transferor manager against the
vacancies that may arise in the school].
Rule 5A (1) of Chapter III of KER provides that no
change of management of any aided School involving
change of ownership shall be effected without the
previous permission of the Director. The Director can
decline permission if grant of such permission will, in
his opinion, adversely affect the working of the
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institution and the interests of the staffs and the
person to whom the management is transferred.
13. Sri.P.Ravindran, the learned Senior Counsel
for the petitioner in W.P (C) No.6890 of 2012, relying on
the Full Bench decision of this Court in Sugathan v.
Shahul Hameed [2006 (4) KLT 54 : 2006 KHC 1116]
would contend that the provisions of KER cannot be
altered or amended by an executive order. The learned
Senior Counsel also referred to the decision of the
Division Bench of this Court in Roopa v. State of
Kerala [2014 (1) KLT 483 : 2014 KHC 69 : ILR 2014 (1)
Ker.509] to contend that previous permission of the
Director is required before making transfer of an aided
school, if the transfer is of a running school with its
management. Sri.Haridas, the learned counsel
appearing for the Trust would contend that the letter
No.63167/F2/10/G.Edn. dated 26.07.2011 of the
Government which provides for grant of ex-post facto
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sanction by the Director in cases where change of
management of Schools was effected with change of
ownership is legal and valid in view of Section 35 of the
Act which provides power to Government to remove
difficulties. Section 35 provides that if any difficulty
arises in giving effect to the provisions of the Act, the
Government may, by order do anything not
inconsistent with such provisions which appear to them
to be necessary or expedient for the purpose of
removing the difficulty. However, Sri.P.Ravindran, the
learned Senior Counsel would meet this argument of
Sri.Haridas by relying on the decision of this Court in
Lalitha v. State of Kerala [2008 (1) KLT 416 :
2007(4) KHC 449 : ILR 2007 (4) Ker. 503] wherein it has
been held that the power to remove difficulty is not a
power to act in violation of the Statute or Rules framed
thereunder. Sri.Haridas would rely on the decisions of
this Court in Kunjulekshmi v. Krishnan Unnithan
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WP(C) NOS.27233 & 29302 OF 2011 and 6890 of 2012
[1992 KHC 190 : ILR 1992 (2) Ker. 343 : 1992 (1) KLJ
415], Vijayakumari Pillai v. State of Kerala [2001
(1) KLT SN 25 (C.No.28], Manager, Koyyode Madrasa
U.P. School (supra) to contend that transfer of a
functioning school together with its management and
properties does not require prior permission of the
Director. Sri.Haridas would also contend that the
judgment in W.A. No.325 of 2011 is not binding on the
Trust as the Trust was not a party in that proceedings.
14. In Manager, Koyyode Madrasa U.P.
School (supra), this Court, relying on the decisions in
Kunjulekshmi and Vijayakumari Pillai (supra), held
that transfer of a functioning school together with its
management and properties does not require prior
permission of the Director. Against the decision in
Manager, Koyyode Madrasa U.P. School (supra), a
Writ Appeal (W.A. No.70 of 2011) was preferred by the
Director and the AEO and the Division Bench though
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agreed with the contention of the Director that prior
permission is required under Rule 5A of Chapter III of
KER, the Writ Appeal was dismissed on the ground that
the appellants therein could not establish how the
transfer has adversely affected the interest of anyone
concerned or of the Government. SLP (Civil)
No.13662/2011 preferred by the Director against the
said judgment was dismissed by the Hon'ble Supreme
Court by observing as follows:
"We find that the Division Bench of the High Court
has agreed with the contention of the petitioner
that prior permission is in fact required before
approval but for reasons given, it has chosen not to
interfere. In these peculiar circumstances, we
consider that this is not a fit case for exercise of
jurisdiction under Article 136 of the Constitution of
India.
The Special Leave Petition is dismissed."
The decision in Manager, Koyyode Madrasa U.P.
School (supra) which held that prior sanction of the
Director is not a requirement under Rule 5A of Chapter
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WP(C) NOS.27233 & 29302 OF 2011 and 6890 of 2012
III of KER was not approved by the Division Bench and
the Hon'ble Supreme Court. Accordingly, in Roopa
(supra), the Division Bench held that the law laid down
in Manager, Koyyode Madrasa U.P. School (supra)
did not lay down the correct proposition of law in the
light of the provisions contained in Section 6 of the Act
and Rule 5A of Chapter III of KER and the observation
of the Hon'ble Supreme Court in SLP (Civil)
No.13662/2011. Further, the Division Bench of this
Court in the judgment in Writ Appeal No.325 of 2011,
produced as Ext.P2 in W.P.(C) No.29302 of 2011, has
held that the previous permission as contemplated
under Section 6 of the Act and Rule 5A of Chapter III of
KER is mandatory for change of management of School
along with properties. The Division Bench also declared
that, under sub section (3) of Section 6 of the Act, any
transaction made in contravention of sub sections (1)
or (2) of Section 6 shall be null and void. Thus, the
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settled law is that previous permission of the Director
as contemplated under Rule 5A of Chapter III of KER is
mandatory for change of management of School
involving change of ownership. The above being the
trite law, request for permission for change of
management involving change of ownership can be
considered only in accordance with the mandate under
Rule 5A of Chapter III of KER.
15. Rule 5A (1) of Chapter III of KER provides that
no change of management of any aided School
involving change of ownership shall be effected
without the previous permission of the Director. Rule
5A(1) of Chapter III of KER begins with a non obstante
clause, 'Notwithstanding anything contained in these
Rules.' This clause gives the provision primacy and an
overriding effect. If other provisions in the KER cannot
override Rule 5A(1) of Chapter III, then a Government
letter or even an executive order cannot have an
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overriding effect on the provisions of Rule 5A(1) of
Chapter III of KER. The letter No.63167/F2/10/G.Edn.
dated 26.07.2011 (Ext.P4 in W.P (C) No.29302 of 2011
and Ext.P5 in W.P (C) No.6890 of 2012) whereby the
Government have directed the Director to grant ex-
post facto permission in cases where change of
management of Schools was effected with change of
ownership, is contrary to the mandate of Rule 5A (1) of
Chapter III of KER which provides that no change of
management of any aided School involving change of
ownership shall be effected without the previous
permission of the Director. The power to remove
difficulties under Section 35 of the Act is not a power to
act in a manner inconsistent with the provisions of the
Statute. The Government letter cannot override Rule
5A(1) under the guise of 'removing difficulties' by
invoking Section 35 of the Act. Letter
No.63167/F2/10/G.Edn. dated 26.07.2011 (Ext.P4 in
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W.P (C) No. 29302 of 2011 and Ext. P5 in W.P(C)
No.6890 of 2012) is not legally sustainable and the
same is set aside.
In the result, W.P.(C) No.27233 of 2011 is
dismissed and W.P (C) Nos.29302 of 2011 and 6890 of
2012 are allowed to the extent indicated above. The
dismissal of W.P.(C) No.27233 of 2011 will not stand in
the way of the Trust from submitting fresh application
for change of management in accordance with law.
Sd/-
MURALI PURUSHOTHAMAN
JUDGE
SPR
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WP(C) NOS.27233 & 29302 OF 2011 and 6890 of 2012
APPENDIX OF WP(C) 27233/2011
PETITIONER'S EXHIBITS:-
EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.425/2007
DATED 19.04.2007.
EXHIBIT P2 THE RECEIPT DATED 11.12.2008 OF
VAMANAPURAM VILLAGE OFFICE.
EXHIBIT P3 TRUE COPY OF THE APPLICATION FOR APPROVAL
TO CHANGE OF MANAGEMENT DATED 02.06.2008.
EXHIBIT P4 THE COVERING LETTER OF EXHIBIT P2 DATED
02.06.2008.
EXHIBIT P5 TRUE COPY OF THE LETTER DATED 07.07.2008.
EXHIBIT P6 TRUE COPY OF THE COVERING LETTER
SUBMITTED BEFORE THE 3RD RESPONDENT DATED
15.09.2008.
EXHIBIT P7 TRUE COPY OF THE REPRESENTATION SUBMITTED
BY THE PETITIONER BEFORE THE RESPONDENTS
2 AND 3 DATED 29.07.2011.
EXHIBIT P8 TRUE COPY OF THE APPLICATION SUBMITTED
BEFORE THE 5TH RESPONDENT BY THE
PETITIONER DATED 17.06.2022.
EXHIBIT P9 TRUE COPY OF THE APPLICATION SUBMITTED
BEFORE THE 6TH RESPONDENT BY THE
PETITIONER DATED 17.06.2022.
EXHIBIT P10 TRUE COPY OF THE APPLICATION SUBMITTED
BEFORE THE 7TH RESPONDENT BY THE
PETITIONER DATED 17.06.2022.
EXHIBIT P11 TRUE COPY OF THE APPLICATION SUBMITTED
BEFORE THE IST RESPONDENT BY THE
PETITIONER DATED 17.06.2022.
EXHIBIT P12 TRUE COPY OF THE LIST OF APPOINTMENTS
ISSUE UNDER RIGHT TO INFORMATION ACT,
DATED 01.06.2022.
EXHIBIT P13 TRUE COPY OF THE GOVERNMENT ORDER
NO.5069/2021/GEN. EDN DEPARTMENT DATED
11.11.2021.
EXHIBIT P14 TRUE COPY OF THE APPLICATION SUBMITTED
BEFORE THE 1ST RESPONDENT BY THE
PETITIONER DATED 22.06.2022.
RESPONDENTS EXHIBITS: NIL.
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WP(C) NOS.27233 & 29302 OF 2011 and 6890 of 2012
APPENDIX OF WP(C) 29302/2011
PETITIONERS EXHIBITS:-
EXHIBIT P1 TRUE COPY OF THE JUDGMENT DT 25.01.2011
IN WRIT APPEAL NO.70/2011 OF THIS HON'BLE
COURT.
EXHIBIT P2 TRUE COPY OF THE JUDGMENT DT 05.07.2011
IN WRIT APPEAL NO.325/2011 OF THIS
HON'BLE COURT.
EXHIBIT P3 TRUE COPY OF THE ORDER DT 13.05.2011 IN
S.L.P NO.13662/2011 OF THE HON'BLE
SUPREME COURT.
EXHIBIT P4 TRUE COPY OF THE NOTIFICATION BEARING
NO.63167/F2/10/G.EDN DT 26.07.2011 ISSUED
BY THE 1ST RESPONDENT.
RESPONDENTS EXHIBITS:
EXHIBIT R5(a) TRUE COPY OF THE TITLE DEED DATED
19.04.2007.
EXHIBIT R5(b) TRUE COPY OF THE PETITION DATED
23.02.2012 SUBMITTED BY THE TRANSFEROR OF
THE 5TH RESPONDENT BEFORE THE VILLAGE
OFFICE, TAHSILDAR, DISTRICT COLLECTOR,
PRINCIPAL SECRETARY AND THE HONOURABLE
REVENUE MINISTER.
EXHIBIT R5(c) TRUE COPY OF THE REPORT DATED 28.02.2012
SUBMITTED BY THE VILLAGE OFFICER.
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WP(C) NOS.27233 & 29302 OF 2011 and 6890 of 2012
APPENDIX OF WP(C) 6890/2012
PETITIONERS EXHIBITS:-
EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN W.A
NO.325/2011 DATED 05.07.2011.
EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN W.A
NO.70/2011 DATED 25.01.2011.
EXHIBIT P3 TRUE COPY OF THE ORDER OF THE SUPREME
COURT IN S.L.P NO.13662/2011 DATED
13.05.2011.
EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED
15.03.2012.
EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED
26.07.2011.
RESPONDENTS EXHIBITS:
EXHIBIT R5(a) TRUE COPY OF THE TITLE DEED DATED
19.04.2007.
EXHIBIT R5(b) TRUE COPY OF THE PETITION DATED
23.02.2012 SUBMITTED BY THE TRANSFEROR OF
THE 5TH RESPONDENT BEFORE THE VILLAGE
OFFICE, TAHSILDAR, DISTRICT COLLECTOR,
PRINCIPAL SECRETARY AND THE HONOURABLE
REVENUE MINISTER.
EXHIBIT R5(c) TRUE COPY OF THE REPORT DATED 28.02.2012
SUBMITTED BY THE VILLAGE OFFICER.
EXHIBIT R4(a) TRUE COPY OF THE LETTER DATED 21.12.2020
SUBMITTED BY THE 4TH RESPONDENT
MANAGEMENT OF THE SCHOOL TO THE 2ND
RESPONDENT DIRECTOR OF GENERAL EDUCATION.
EXHIBIT R4(b) TRUE COPY OF THE EMAIL THREAD REGARDING
LETTER DATED 21.12.2020.
