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2002 DIGILAW 721 (KER)

The Manager v. The Director of Public Instruction

2002-11-07

CYRIAC JOSEPH, JAWAHAR LAL GUPTA

body2002
Judgment :- Jawahar Lal Gupta, C.J. Reji C. Moncy approached this court with the prayer that a writ of mandamus be issued directing the respondents to provisionally permit him to participate in the board meetings of the School and to act as a member of the managing committee. While this petition was pending, the Director of Public Instruction passed an order dated 20-7-1999 by which the said Reji was provisionally included in the managing committee for a period of one year. Aggrieved by the order, the Manager of the N.T.M. High School filed Original Petition No. 19484 of 1999 praying that the order of the Director, a copy of which is Annexure Ext.P11, be quashed. Both these petitions have been disposed of by the learned single judge by a common judgment dated 11-11-1999. It has been held that the order of the Director is not illegal. Thus, O.P. 19484 of 1999 was dismissed. The petition filed by Mr. Reji was allowed with the direction that he would be entitled to participate in the board meetings of the School and act as a member of the managing committee. 2. Aggrieved by the judgment, the Manager of the school has filed Writ Appeal Nos. 62 & 63 of 2000. Counsel for the parties are agreed that since both the Appeals arise out of one judgment, these can be disposed of by a common order. 3. The primary plea raised by Mr.Kurian George, learned counsel for the appellant is that under the provisions of the Kerala Education Act, 1958, the order passed by the Director of Public Instruction could not have been sustained. Learned counsel has pointed out that Reji C. Moncy had been convicted for an offence punishable under Sec. 380 of the Indian Penal Code by the Additional Judicial Magistrate First Class vide judgment dated 28-10-1989. He was sentenced to undergo rigorous imprisonment for a period of six months. He has further pointed out that by another judgment dated 31-3-1992 in C.C.548 of 1991 given by the Additional Judicial Magistrate, Ernakulam, the said respondent Reji was again found guilty. However, he was released under the probation of Offenders Act, 1958. The respondent had concealed the factum of his earlier conviction and was, thus, given the benefit of the Probation of Offenders Act, 1958. However, he was released under the probation of Offenders Act, 1958. The respondent had concealed the factum of his earlier conviction and was, thus, given the benefit of the Probation of Offenders Act, 1958. Copies of both the judgments have been placed on record as Annexure II & III with Civil Miscellaneous Petitions in W.A. 62 of 2000. On this basis, counsel contends that the said respondent was not eligible for inclusion in the managing committee of the school. 3. Mr.Philip Mathew, learned counsel for the respondent Reji contends that the present case does not fall within the mischief of Rule 8 (3A) of Chapter-III of the Kerala Education Rules as he had not been “appointed” on the managing committee. 4. It would be apt to notice the provision at the outset. It reads as under: "8. Persons connected with Management not to be appointed in schools. (3A) No person who is convicted by a court for an offence involving moral turpitude shall be eligible for appointment as manager or a member of the managing body.” Rule 8 deals with the constitution of the managing committee of the school. It specifies the persons who are eligible for appointment to the management of the schools. In clause (3A) a person convicted of an offence involving moral turpitude has been made ineligible to be appointed as manager or to be a member of the managing committee. 5. The Rule has a salutary purpose to serve. It is intended to ensure that people with a shady past are not allowed to spoil the future of young children. With that avowed object in mind the rule making authority has made it incumbent on the management to exclude the persons convicted of offences involving moral turpitude from the office of manager or membership of the managing committee. It is in the context of this provision that the validity of the order passed by the Director of Public Instruction has to be considered. 6. A perusal of the order passed by the Director shows that full facts regarding the shady past of respondent Reji were not placed on record. Despite the efforts made by the appellant, the record was not made available to him. 6. A perusal of the order passed by the Director shows that full facts regarding the shady past of respondent Reji were not placed on record. Despite the efforts made by the appellant, the record was not made available to him. It is only during the course of the proceedings before this Court that the appellant has been able to secure copies of the relevant orders passed by different courts and to place them before the Bench for its consideration. These documents have been placed on record with separate petitions. Copies have been furnished to the counsel for the respondent. The correctness of the documents has not been controverted or contested by filing any affidavit. Thus, the genuineness of the two judgments produced as Annexure II & III with separate miscellaneous applications is not in doubt. 7.On a perusal of the judgments, it is clear that the said respondent had been found guilty of the offence punishable under Sec. 380 on two occasions. He was also convicted for an offence punishable under Sec. 461 IPC in the year 1992. Thus, it is established that the respondent Reji had been convicted of an offence which involved moral turpitude. He clearly fell within mischief of Rule 8(3A) of Chapter III Kerala Education Rules. Thus, he was not eligible to be a Manager or a member of the Managing Committee. 8. Mr. Mathew contends that nomination by the Director of Public Instruction is not an appointment to the managing committee. It is only inclusion. Thus, the order does not come within the ambit of the prohibition envisaged under Rule 8(3A). 9. The contention raised by learned counsel cannot be sustained. On a perusal of the Rule, it is clear that there is a positive prohibition against the inclusion of a person who has been convicted of an offence involving moral turpitude in the managing committee of an educational institution. This being the position, the respondent Reji C.Moncy was wholly ineligible. 10. It is undoubtedly true that the rule contemplates appointment. However, in the context, the provision implies that a convict may not be nominated or included in the managing committee. The respondent was, thus, debarred from being a member of the managing committee. This being the position, the order passed by the Director was wholly illegal and is, thus, liable to be set aside. 11. However, in the context, the provision implies that a convict may not be nominated or included in the managing committee. The respondent was, thus, debarred from being a member of the managing committee. This being the position, the order passed by the Director was wholly illegal and is, thus, liable to be set aside. 11. Mr.Mathew contends that the respondent Reji C. Moncy be given a chance to improve. Thus, he prays that he should be permitted to work as a member of the managing committee. 12. The contention cannot be accepted. The present is not a case where the rule permits of any exception. It lays down a positive bar. Still further, the respondent's conduct also arouses no sympathy. He had not only been convicted in the year 1989 but had even repeated the act of theft in the year 1991. Moreover, the respondent had concealed the factual position before the Magistrate and had got the benefit under the Probation of Offenders Act, 1958. More than all these, the respondent had made a deliberate attempt to conceal the facts from the Director of Public Instruction. He had failed to disclose facts. Thus, the plea raised on behalf of the appellant that the respondent Reji C. Moncy has a shady past and was, thus, unfit to be associated with the managing committee of an educational institution has to be sustained. 13. No other point has been raised. In view of the above, we allow the Appeals, set aside the impugned judgment and quash the order dated 20-7-1999 passed by the Director of Public Instructions, Thiruvananthapuram. The parties shall bear their costs.