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2017 DIGILAW 460 (KER)

P. K. Sukumara Panicker v. State of Kerala

2017-03-03

DEVAN RAMACHANDRAN

body2017
JUDGMENT : Devan Ramachandran, J. The dialectical claims of petitioner on one side and respondents 4 to 6 on the other relates to the claim to be the Manager of Aided Upper Primary School, by name, A.U.P. School, Chiramangalam, within the jurisdictional domain of the 3rd respondent, Assistant Educational Officer. 2. Not many facts are in dispute in this case except as to the conflict of interests among the parties, who are siblings, in deciding as to who will be the Manager of the school. 3. The school was founded by the father of the petitioner and respondents 4, 5 and 6 and he was the Manager until his death in the year 1987. Thereafter, their mother became the Manager and continued as such till her death in 2010. The disputes arose after that. The petitioner who is the elder son, staked claim to be the Manager on the strength of the fact that he is the elder son, while the 4th respondent applied to be the Manager on the assertion that all the legal heirs of his parents are supporting his claim and also for the reason, according to him, that he is the legatee under his mother's will. This is how the conflicting claims were projected and put forward before the authorities. 4. Obviously since these issues relate to rival civil rights of the parties, the authorities could not have taken an affirmative decision but the 2nd respondent chose to pass Ext.P3 order approving the 4th respondent Mr. Sethumadhavan as the Manager of the school in the nature of a stop-gap arrangement for a period of 2 years. This period of 2 years appear to have been fixed because, the authority noticed that there was a civil suit between the parties which was pending and he possibly hoped that some orders would be issued in the said suit by them, which will resolve the dispute. This order, which is appended to this writ petition as Ext.P3, was challenged by the petitioner herein before the Government which, however, confirmed it by issuing Ext.P6 order. The petitioner has challenged both Exts.P3 and P6 in this writ petition. 5. I have heard Shri. M.K. Damodaran, the learned Senior Counsel appearing for the petitioner assisted by Shri. V.A. Mohammed, Shri. Vinod Madhavan, the learned counsel appearing for respondents 4 to 6 and the learned Government Pleader appearing for respondents 1 to 3. The petitioner has challenged both Exts.P3 and P6 in this writ petition. 5. I have heard Shri. M.K. Damodaran, the learned Senior Counsel appearing for the petitioner assisted by Shri. V.A. Mohammed, Shri. Vinod Madhavan, the learned counsel appearing for respondents 4 to 6 and the learned Government Pleader appearing for respondents 1 to 3. 6. I am aware that the challenge is mounted against Exts.P3 and P6 on various grounds. However, I am not sure whether I should now proceed to consider the challenge on its merits. I say this because, by efflux of time, these orders have undoubtedly run themselves out. Ext.P3 order was passed on 28.06.2011 and obviously its operation would be only until the period for which it was intended to operate, namely for a period of two years. That period has now passed but it is admitted that the 4th respondent is still continuing as the Manager of the school under its mandate because, according to his learned counsel, the period in the said order is being extended from time to time. 7. The learned Senior Counsel Shri. M.K. Damodaran refutes this and says that once Ext.P3 has operated itself out, it was impermissible for the authorities to have allowed the 4th respondent to continue as the Manager, since the stop-gap arrangement mentioned on in the order was specifically limited for a period of 2 years and no more. Shri. Vinod Madhavan, the learned counsel appearing for respondents 4 to 6 contends that it is not so because, according to him, in Ext.P3, it is clearly said that the arrangement will be for a period of 2 years and that it will be subject to the final verdict of the civil case that is pending. 8. I have examined the orders impugned in this writ petition. There is no doubt that Ext.P3 is intended to operate for a period of 2 years as a provisional arrangement. It is true that the last line of the said order says that the temporary arrangement will be subject to the final verdict of the civil case. The intention of the authorities is very clear. The arrangement was to continue for 2 years unless that period would have to be cut short on account of the verdict in the civil case. There can be no other meaning to this. The intention of the authorities is very clear. The arrangement was to continue for 2 years unless that period would have to be cut short on account of the verdict in the civil case. There can be no other meaning to this. In such view, obviously, after the period of 2 years, the operation of Ext.P3 and consequential Ext.P6 order should have obviously terminated. However, Shri. Vinod Madhavan brings to my notice the operative portion of Ext.P6 to say that the Government have in fact not restricted the period of this stopgap arrangement. He points out that paragraph 10 of Ext.P6 order says that Ext.P3 order is upheld and that the 4th respondent is allowed to continue as a Manager. He asserts that since that portion of the order does not fix a time frame, his client will be entitled to continue until such time as the civil court delivers a verdict. 9. At first blush, this submission may seem lustrous, but on a close scrutiny of Ext.P6 order, it looses its sheen substantially. This is because in paragraph 9 of the said order, the Government says very clearly that the decision in Ext.P3 is a reasonable way to fill the vacuum and that the stopgap arrangement ordered by the Director of Public Instructions is intended to protect the students. From this, the intention of the Government is also very clear. It is intended to maintain the stopgap arrangement in the manner and for such period as was originally ordered by the DPI in Ext.P3. I am, therefore, firm in my mind the period of the temporary arrangement, as ordered in Exts.P3 and P6 orders, have now obtained consummation. 10. Any further attack, in such view, on Exts.P3 and P6 would become completely superfluous because it has already worked itself out, I do not deem it necessary to make any observations on the merits or validity of the same at this time. 11. However, since the term of the stopgap arrangement is now over, it is only proper that the authorities consider the claims of the parties again with reference to their contentions and with reference to any materials that may be produced before it as to the managership of the school. 11. However, since the term of the stopgap arrangement is now over, it is only proper that the authorities consider the claims of the parties again with reference to their contentions and with reference to any materials that may be produced before it as to the managership of the school. If for any reason, it is not possible for the Authority to conclude conclusively or to opine affirmatively as to the claims of the parties as are placed before him, it will be upto him to decide the nature of the arrangement that will require to be made, at least until such time as the civil court delivers the verdict. I think it is appropriate to leave it to the authority since this Court, acting under Article 226 of the Constitution of India is jurisdictionally constrained and incompetent to consider these issues, which are essentially in the realm of disputed facts. 12. In such circumstances, I order this writ petition, directing the 3rd respondent to consider the conflicting claims of the petitioner on one hand and the 4th respondent on the other as to the managership of the school, adverting to their contentions and to the materials that they may produce before him, after affording all of them an opportunity of being heard. 13. Since this writ petition has been pending for the past more than 4 years and since the original arrangement under Exts.P3 and P6 has run out for the last more than a year and half of two, I deem it appropriate that the 3rd respondent complete the exercise as afore directed, as expeditiously as possible and not later than 3 months from the date of receipt of a copy of this judgment. 14. I make it clear that until such time as the 3rd respondent takes a definite view in this matter, the present arrangement shall continue, that is to say, that the 4th respondent will continue be in office. If for any reason, the 3rd respondent finds it difficult to take a final decision as to who should be the Manager of the school, he will be at liberty to make such temporary arrangement, as he would deem fit, de hors what has been already stated in Exts.P3 and P6, and such decision will be taken on a fresh consideration of all the relevant factors. 15. This writ petition is thus ordered. 15. This writ petition is thus ordered. In the facts and circumstances of this case, I make no order as to costs and the parties are directed to suffer their respective costs.