P. v. John VS Director Of Public Instruction — 1975 DIGILAW 224 (KER)

JUDGMENT K.K. Narendran, J. 1. The petitioner in this original petition is one who has obtained an aided school in a partition. The petitioner father had three aided schools and after the death of the father, the plaintiff and his two brothers partitioned the properties left by their father and one of the schools was allotted to the petitioner. The grievance of the petitioner is against Ext. P-4 order of the 1st respondent-Director of Public Instruction insisting upon certain conditions for the change of management of the schools inherited by the petitioner and his brothers. Two questions arise for consideration in this original petition. One is whether the restrictions imposed by section 6 of the Kerala Education Act, 1958 (for short, the Act) will apply if a running school is transferred as a going concern. The other question is whether the Director of Public Instruction under rule 5A of Chapter III of the Kerala Education Rules, 1959 (for short, the rules) can insist upon conditions ignoring the existence of the institutions as separate entities as a result of the transfer. 2. When the petitioner father passed away on 21st September 1971, the petitioner was appointed as Manager of the three schools for a period of three years from 1st October 1971 and that was approved by the 2nd respondent-District Educational Officer, Kottarakkara. Subsequently, a partition of the assets left by the petitioner father was effected and the St. John High School, Oommannur was allotted to the petitioner while St. John L.P. School, Oommannur and the St. Mary U.P. School, were allotted to the petitioner brothers, Daniel and Alexander respectively. Thereupon, the petitioner by Ext. P-1 petition dated 19th June 1974 requested the 1st respondent-Director of Public Instruction for permission to effect the change of management of the respective schools in favour of the persons to whom they stood allotted in the partition. But the 1st respondent by Ext. P-2 addressed to the petitioner, his two brothers and the headmasters of the three schools, replied that some of the teachers on the staff of the schools have got certain grievances in the matter and hence he proposes to have a discussion with the interested persons before granting permission for the change of management. By Ext. P-2, the 1st respondent requested the parties to be present in his office for a discussion. To Ext. By Ext. P-2, the 1st respondent requested the parties to be present in his office for a discussion. To Ext. P-2, the petitioner and his two brothers sent Ext. P-3 reply stating that only a formal permission was required for effecting change of management and that it was not necessary to consider the representations, if any, of the teachers concerned. Then came Ext. P-4 letter from the 1st respondent informing the petitioner that the change of management cannot be allowed till the managers agree with the reasonable demands of the staff to safeguard their interests in a just and equitable manner. Para 3 of Ext, P-4 is as follows : "Certain conditions are necessary to safeguard the interest of the staff in a just and equitable manner. On a meeting convened by the D.P.I. on 19th December 1974 the new managers objected the request of the staff basing on certain legal grounds i.e. It is not a transfer in the strict legal sense and there is no provision for the teachers to opt a particular school and the seniority list ceases to exist from the date of partition. The legal grounds stated by the managers are not sustainable and cannot stand in the way of granting reasonable demands of the staff. Since the common right of the person for possession of these schools were transferred in accordance with the partition deed, it will come within the scope of section 6 of the K. E. Act. Until the change of management has been effected according to rules, the common seniority list will continue and it has no connection with the date of partition. The Manager will not get the right to nullify the common seniority list approved by the Department either by succession or partition. In the circumstances, change of management cannot be allowed till the managers agree with the reasonable demand of the staff to safeguard their interest in a just and equitable manner."� It was under the above circumstances that the petitioner has approached this Court with this original petition. The petitioner seeks to quash Ext. P-4 as illegal and unconstitutional and also seeks a writ of mandamus to compel the 1st respondent to dispose of Exts. P-1 and P-3 in accordance with law and grant approval to the change of management prayed for therein. The contention regarding the constitutionality of Ext. The petitioner seeks to quash Ext. P-4 as illegal and unconstitutional and also seeks a writ of mandamus to compel the 1st respondent to dispose of Exts. P-1 and P-3 in accordance with law and grant approval to the change of management prayed for therein. The contention regarding the constitutionality of Ext. P-4 is not considered in this judgment and no relief is granted on the basis of that contention. A counter-affidavit and an additional counter-affidavit have been filed by the Assistant Director in the office of the Director of Public Instruction on behalf of the respondents. The statement in para 5 of the counter-affidavit is that the, conditions stipulated in Ext. P-4 are necessary for safeguarding the interests of the teachers of the schools. It is stated in para 9 that if the petitioner- manager satisfies the conditions stated in Ext. P-4, the interests of the staff will be protected. The additional counter-affidavit happened to be filed to correct a statement made in the counter-affidavit that a revision petition from Ext. P-4 was pending with the Government. 3. Sri M. P. R. Nair, learned counsel for the petitioner, contends that the 1st respondent has no power to insist upon conditions mentioned in Ext. P-4 for effecting change of management in a case like this. Sri M. P. R. Nair points out that this is a case where the three schools inherited by the petitioner and his brothers were partitioned and since it is a partition, no transfer in the strict legal sense is involved. Learned counsel further contends that since one school each is set apart with its properties and right to management to every one of the three brothers, the prohibition in section 6 of the Act will not apply in this case. According to the learned counsel, section 6 of the Act will come into play only if an educational agency alienates any property of an aided school without the previous permission in writing of the authorised officer. In this case, no alienation of the property of ah aided school is involved as the school as such is allotted in the partition. According to the learned counsel, section 6 of the Act will come into play only if an educational agency alienates any property of an aided school without the previous permission in writing of the authorised officer. In this case, no alienation of the property of ah aided school is involved as the school as such is allotted in the partition. Sri M.P.R. Nair further contends that under rule 5A of Chapter III of the Rules, though previous permission of the Director of Public Instruction is required for change of management of an aided school involving change of ownership', the permission cannot be denied in a case like this. According to Sri M. P. R. Nair, though the rule says that permission can be refused by the Director of Public Instruction, if in his opinion, the granting of such permission will adversely affect the working of the institution and the interests of the staff and, the person to whom the management is sought to be transferred, as section 6 of the Act will not apply to a transfer like the one in question, the department cannot stand in the way of the transfer. Then, the only question is whether the Director of Public Instruction can insist upon conditions which cannot be insisted in the case of a change of management not involving change of ownership. In the case of a change of management not involving change of ownership, approval has to be given by the department if the person to whom the change of management is to be made does not have any of the disqualifications mentioned in rule 8 of Chapter III of the Rules. In this case, the petitioner is not one who can be disqualified under the above rule 8 and hence the change in his favour cannot but be approved. According to Sri M. P. R. Nair, the interests of the staff cannot stand in the way of a transfer like this and hence that cannot be a reason for not approving the change of management. As far as the working of the institution is concerned, the 1st respondent has not pointed out in Ext. P-4 that the partition of the schools will in any way adversely affect the working of the schools. As far as the working of the institution is concerned, the 1st respondent has not pointed out in Ext. P-4 that the partition of the schools will in any way adversely affect the working of the schools. Sri M, P. R. Nair further contends that the separate existence of the three schools resulted by the partition cannot be ignored by the Director of Public Instruction in insisting upon the conditions for the change of management. 4. On behalf of the respondents, the learned Government Pleader contends that previous permission of the competent authority should have been obtained before effecting the transfer and, in this case, that has not been done. So, according to the learned Government Pleader, the partition has no validity and the administration of the three schools should be continued unaffected by the above partition. It is further contended that the common seniority list of teachers working in the three schools already approved by the department shall not be disturbed at the whims and fancies of the manager as sufficient safeguards are made in the Act and the Rules to enable the department to protect the interests of the teachers. The learned Government Pleader points out that the 1st respondent considered the request of the teachers of the schools and came to the conclusion that if the transfer is effected without safeguarding the interests of the teachers, it will adversely affect the working of the institution. According to the learned Government Pleader, the 1st respondent has power in this regard under rule 5A of Chapter III of the Rules. If the petitioner-manager satisfies the conditions laid down in Ext. P-4, the 1st respondent will approve the change of management and, according to the learned Government Pleader, the 1st respondent has the power to insist upon the conditions mentioned in Ext. P-4. The 1st respondent has only directed that the management of the schools could be transferred only in accordance with the rules of Chapter III of the Rules. 5. Section 6 of the Kerala Education Act, 1958 reads: "6. P-4. The 1st respondent has only directed that the management of the schools could be transferred only in accordance with the rules of Chapter III of the Rules. 5. Section 6 of the Kerala Education Act, 1958 reads: "6. Restriction on alienation of property of aided school."(1) Notwithstanding anything to the contrary contained in any law for the time being in force, no sale, mortgage, pledge, charge or transfer of possession in respect of any property of an aided school shall be created or made except with the previous permission in writing of such officer not below the rank of a District Educational Officer, as may be authorised by the Government in this behalf. The officer shall grant such permission applied for unless the grant of such permission will in his opinion, adversely affect the working of the school. (2) * * * * (3) * * * * * (4) * * * * � [sub-sections, (2) to (4) are omitted as they are not relevant for the purpose of this case]. Rule 5A of Chapter III of the Kerala Education Rules, 1959 reads: "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 receipt of the order, prefer an appeal to the Government."� 6. There is considerable force in the contentions of the learned counsel for the petitioner. The prohibition in section 6 of the Act is only against the alienation of any property of an aided school without previous sanction. When a running school as such with all its properties and right to management is transferred, section 6 of the Act will not be attracted. The prohibition in section 6 of the Act is only against the alienation of any property of an aided school without previous sanction. When a running school as such with all its properties and right to management is transferred, section 6 of the Act will not be attracted. What is sought to be prevented by section 6 is the alienation of any property of an aided school by an educational agency because, in that case, the working of the school will be adversely affected when any property or properties of the school go into the hands of third persons. When a school is transferred as a going concern, such a difficulty will not arise and hence the prohibition in section 6 cannot apply to such a transfer. When such a valid transfer is effected, the change of management is to be effected with the previous permission of the Director of Public Instruction, The question is what all conditions can be insisted on by the Director of Public Instruction in such a case. Of course, if the person to whom the school is transferred is a person who is disqualified under rule 8 of Chapter III of the Rules, the Director of Public Instruction cannot approve the change of management in his favour. If the change of management will in any way adversely affect the interests of the institution, the Director of Public Instruction may have the power to withhold permission specifying the reasons. As far as the interests of the staff are concerned, protection can be there only to the extent that is provided by the Act and the Rules. By a transfer like this, the staff cannot be denied their valid rights as teachers of an aided school. But it cannot be forgotten that the effect of the transfer that has resulted by the partition is that every one of the three schools becomes separate institutions. In that case, the staff in one of the schools cannot in any way insist that he or she should be given the option to be in the staff of any of the other two schools. In that case, the staff in one of the schools cannot in any way insist that he or she should be given the option to be in the staff of any of the other two schools. Even though as per the common seniority list approved prior to the partition, a member of the staff in any one of the schools was senior to another member of the staff in any one of the other two schools, he or she cannot claim any superior right because they have become members of the staff of separate schools. The interests of the staff"� mentioned in rule 5A of Chapter III of the Rules can only be their interests as members of the staff of the three separate schools. As members of the staff of the three separate schools they cannot insist on the continuance of the common seniority list. The common seniority list has disappeared the moment the schools were partitioned. The Director of Public Instruction cannot withhold approval to the change of management in question for the reasons stated in Ext. P-4. 7. For the reasons stated above, I quash Ext. P-4 and direct the 1st respondent-Director of Public Instruction to pass fresh orders in the matter in the light of what is stated above in this judgment within six weeks from today. The original petition is allowed to the extent indicated above. There will be no order as to costs.