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2019 DIGILAW 658 (KER)

Anandan A. S/o Krishnan v. P. Suresh Secretary, Valancherry High School Managing Committee

2019-08-14

C.K.ABDUL REHIM, R.NARAYANA PISHARADI

body2019
JUDGMENT : C.K. ABDUL REHIM, J. 1. Since the challenge in both these appeals are against the same judgment of the Single Judge in W.P. (C) No. 20 of 2018, dated 22.5.2018, they were considered together and disposed of through this common judgment. 2. The appellants in W.A. No. 1308 of 2018 are respondents 3 and 4 in the writ petition and the appellant in W.A. No. 1420 of 2018 is the 2nd respondent. Respondents 1 and 2 in both the appeals are the writ petitioners and other respondents herein are the respondents 1, 5 and 6 in the writ petition. 3. The writ petition was filed for quashing Ext.P12 order of the District Educational Officer (DEO) through which the approval of the appointment of 2nd writ petitioner as Manager of two schools, namely the Valancherry Higher Secondary School and the Girls High School, Valancherry was rejected. The corporate educational agency of both the school is the Valancherry High School Committee. According to the writ petitioners, the Managing Committee of the educational agency, which held its meeting on 13.7.2017, had unanimously elected the 2nd writ petitioner as Manager of the schools. The 1st writ petitioner in his capacity as Secretary of the educational agency, which is a society registered under the Societies Registration Act, 1860, had forwarded a request to the DEO for approval of the change of the Manager, in accordance with the decision taken by the Managing Committee. It is stated in the writ petition that the General Body of the educational agency, in its meeting held on 22.7.2017, had ratified the decision taken by the Managing Committee on 13.7.2017, appointing the 2nd writ petitioner as the Manager. The 2nd respondent in the writ petition (appellant in W.A. No. 1420 of 2018) as well as the respondents 3 to 6 in the writ petition submitted objections before the DEO against approval of the 2nd writ petitioner as the Manager. The DEO conducted a hearing of the parties and taken a decision as per the impugned order, rejecting approval of the appointment of the 2nd writ petitioner as Manager of the schools. It is the said decision which was challenged in the writ petition. 4. In the impugned order, the DEO observed that, the persons who raised objections had pointed out irregularities with respect to the decision taken by the Managing Committee of the educational agency. It is the said decision which was challenged in the writ petition. 4. In the impugned order, the DEO observed that, the persons who raised objections had pointed out irregularities with respect to the decision taken by the Managing Committee of the educational agency. It was specifically found that, the 2nd respondent in the writ petition had raised a claim for including him in the Managing Committee, which took the decision to appoint the 2nd writ petitioner as the Manager. The DEO, after examining the documents produced and after considering the arguments raised, arrived at a conclusion that the decision taken by the Managing Committee on 13.7.2017 is not in order. It was found that, as per Clause 5 of Bye-laws of the educational agency, the term of office of the Managing Committee had expired on 26.5.2017 and the next committee was elected by the General Body only on 22.7.2017. Therefore the decision taken on 13.7.2017 by the Managing Committee, the tenure of which stood expired on 26.5.2017, was not in accordance with the Byelaws. Therefore the approval of the appointment of the 2nd writ petitioner as the Manager of the schools in question was rejected. 5. The appellants herein filed counter affidavits in the writ petition raising contentions to the extent of pointing out the irregularities in the functioning of the educational agency, as well as the irregularities committed by the Managing Committee in appointing the 2nd writ petitioner as the Manager. But the learned Single Judge had allowed the writ petition and quashed Ext.P12 proceedings of the DEO and directed to approve the appointment of the 2nd writ petitioner as the Manager of the schools, without any delay. The decision was based mainly on the reasoning that the reason for denial of the approval mentioned in Ext.P12, that the Manager was elected by a Managing Committee of which the term of office had already expired, is completely untenable. It was found that the General Body of the society had ratified the election of the 2nd writ petitioner. It was also held that the objections of the appellants herein against appointment of the 2nd writ petitioner cannot be countenanced, because they are not members of the educational agency (society) at present. It was found that the General Body of the society had ratified the election of the 2nd writ petitioner. It was also held that the objections of the appellants herein against appointment of the 2nd writ petitioner cannot be countenanced, because they are not members of the educational agency (society) at present. It was held that, it is for the educational agency to appoint the Manager and the persons who are not having connection with the affairs of the educational agency could have any say in the matter, going by the scheme of the Kerala Education Act and the Rules made thereunder. It was further held that, as long as there is no statutory disqualification for the 2nd writ petitioner to act as Manager, he is entitled to get his appointment approved by the educational authorities. The learned Judge had also considered the contention that there exists a statutory remedy of appeal against Ext.P12 order. But it was observed that, the writ petition was already admitted and an interim order was rendered by this court. All the parties have placed their pleadings on record in the writ petition. Therefore it was found that it would not be proper to relegate the matter again to the appellate authority. The learned Judge specifically noticed that, the interim order passed was taken up in Writ Appeal and the parties conceded before the Division Bench that pleadings are complete in the writ petition and that the matter can be decided in the writ petition. Therefore the Division Bench had directed for an early disposal of the writ petition. Under such circumstances, the learned Judge proceeded to decide the validity of Ext.P12 on its merits and allowed the writ petition. 6. One of the contentions of the appellant in W.A. No. 1420 of 2018 (2nd respondent in the writ petition) was about nonexistence of the educational agency (society) itself. The learned Single Judge found that, there exist no dispute that the “Valancherry High School Committee” is the approved educational agency of the schools and the claim raised by the said appellant with respect to ownership over the schools, is a matter pending decision in a Second Appeal before this court, which arise out of a suit filed on the said controversy. So also it was found that, the right if any, of the said appellant to be a member of the committee is a matter which need to be decided in the civil litigation. Existence of the civil disputes or any other complaint raised against the educational agency or its Manager cannot be considered as a ground for refusing approval of the appointment of the Manager. Hence Ext.P12 was quashed. 7. The appellants in both the writ appeals had raised contentions that, the 1st writ petitioner is not the educational agency; nor it is mentioned anywhere that he is representing the educational agency. It is contended that, since the educational agency has not come up before this court challenging decision of the DEO, the writ petition ought not have been entertained. Therefore it is contended that the 1st writ petitioner had no locus-standi to challenge Ext.P12 order. It is to be noted that, the educational agency approved by the authorities under the Kerala Education Act, 1958 and the Kerala Education Rules, 1959 (hereinafter referred to as the Act and the Rules respectively) is indisputably the society namely, the Valancherry High School Committee. Ext.P8 is the minutes of the Managing Committee meeting held on 13.7.2017, which contains the decision that the 2nd writ petitioner is elected as the new Manager of the schools. Ext.P9(a) is the minutes of the General Body of the society (educational agency) held on 22.7.2017. Among other decisions, the General Body resolved to ratify the decision of the Managing Committee, taken on 13.7.2017, appointing the 2nd writ petitioner as Manager. The General Body further resolved to authorise the 1st writ petitioner, who is the General Secretary of the society, to submit necessary documents before the DEO, for approval of the appointment of the 2nd writ petitioner as the Manager. Ext.P9 is the application submitted by the 1st writ petitioner before the DEO seeking the approval. Ext.P12 impugned proceedings of the DEO refers about the General Body meeting which held on 22.7.2017 and it also refers about the application submitted by the 1st writ petitioner. 8. The name and address of the 1st writ petitioner mentioned in the writ petition are as “P. Suresh, Secretary, Valancherry High School Managing Committee, Valancherry, Malappuram District 676552.” Contention raised is that, nothing is indicated to show that the 1st writ petitioner had filed the writ petition on behalf of the society. 8. The name and address of the 1st writ petitioner mentioned in the writ petition are as “P. Suresh, Secretary, Valancherry High School Managing Committee, Valancherry, Malappuram District 676552.” Contention raised is that, nothing is indicated to show that the 1st writ petitioner had filed the writ petition on behalf of the society. First of all, we may observe that, such a contention is hyper technical. The 1st writ petitioner has no personal interest in the matter. There is no cause to him to be agitated other than the cause of the society. It is pertinent to note that the General Body of the society had authorised him to approach the DEO for getting approval of appointment of the Manager. When the approval was rejected, he filed the writ petition. We are of the considered opinion that, strict rules of pleadings, as required in a civil suit, is not an absolute requisite in a proceedings under Article 226. When it is clear and evident that the 1st writ petitioner is agitating the cause on behalf of the society, the court need not go hyper technical with respect to the form in which his name and address are indicated in the writ petition. Further, we take note of the fact that the 2nd writ petitioner himself, who is the electee to the post of the Manager, is one among the writ petitioners. It cannot in any manner be contended that the 2nd writ petitioner is not an aggrieved person. Nor it can be contended that he is a person not entitled to challenge the rejection, which will affect him personally. Therefore it cannot be held that the writ was not maintainable. 9. Apart from the above said aspect, it is pointed out by the writ petitioners that, the above said contention had never been raised in the writ petition, before the Single Judge. Therefore the appellants cannot be permitted to raise such a contention in the writ appeals, for the first time. Learned Senior Counsel who appeared on behalf of the writ petitioners placed a Division Bench decision of this Court in State Bank of Travancore, Kottayam and Another vs. Chinchumol M.S. 2015 (2) KHC 104 wherein it is held that, in an intra-court appeal, no plea which was not raised before the Single Judge can be permitted to be raised. Learned Senior Counsel who appeared on behalf of the writ petitioners placed a Division Bench decision of this Court in State Bank of Travancore, Kottayam and Another vs. Chinchumol M.S. 2015 (2) KHC 104 wherein it is held that, in an intra-court appeal, no plea which was not raised before the Single Judge can be permitted to be raised. Per contra, learned Senior Counsel appearing for the appellant in W.A. No. 1420 of 2018 as well as the counsel appearing for the appellants in W.A. No. 1308 of 2018 contended that, locus-standi of the petitioners is a question which go deep into the maintainability of the writ petition itself and the same can be agitated at any stage of the proceedings. We are not persuaded to accept such a contention for the totality of the reasons mentioned as above, and it is hereby repelled. 10. Yet another contention raised is against the finding that, the ratification given by the General Body is illegal and unsustainable. According to the appellants, as on 13.7.2017 the Managing Committee was not in existence, because of the provisions contained in the Bye-laws of the society. Therefore the decision was taken by a Managing Committee, which was not in existence, is the contention. As a corollary, argument is that, there existed no valid decision which could have been ratified by the General Body. Hence the approval directed by the learned Single Judge is illegal, erroneous and improper, is the argument. 11. Evidently, term of the existing Manager was up to 27.7.2017. The Managing Committee had elected the 2nd writ petitioner on 13.7.2017. The General Body of the society had ratified the decision on 22.7.2017. The 1st writ petitioner made the application for approval before the DEO on 24.7.2017. Referring to Ext.P1 Bye-laws of the society, contention is that, the term of the Managing Committee is 3 years and the term of the then Managing Committee expired on 26.5.2017. Question primarily to be considered is, whether the Managing Committee was competent to take a decision in the matter, on 13.7.2017. Learned Senior Counsel for the writ petitioners contended that, the Bye-laws does not insist that the election of the new Managing Committee has to be conducted prior to expiry of the term of the existing committee. Question primarily to be considered is, whether the Managing Committee was competent to take a decision in the matter, on 13.7.2017. Learned Senior Counsel for the writ petitioners contended that, the Bye-laws does not insist that the election of the new Managing Committee has to be conducted prior to expiry of the term of the existing committee. Therefore it has to be presumed that the existing Managing Committee continues to function until the General Body elects a new Managing Committee, is the contention. On the other hand, contention of the learned Senior Counsel for the appellants is that, unless the Bye-laws authorises specifically about such continuation, the same cannot be presumed or deemed. We are of the considered opinion that, we need not delve upon the above said controversy; nor a decision is warranted on that point. This is because, the decision taken by the General Body on 22.7.2017 clearly indicates that the educational agency had decided to appoint the 2nd writ petitioner as Manager and authorised the 1st writ petitioner to apply for approval of the appointment. As long as there is no dispute that the educational agency approved by the authorities is the society and as long as there is no dispute that the decision on 22.7.2017 is taken by the members of the society, we think that the educational authority (the DEO) is bound by such decision, with respect to which approval can be rejected only if there is a disqualification for the 2nd writ petitioner. In other words, we are persuaded to observe that, the ratification made by the General Body will amount to a decision taken by the society itself, who is the educational agency. The legality or sanctity of any such decision disputed based on the provisions contained in the Bye-laws is not an issue which need be adjudicated by the DEO for the purpose of approving appointment of the Manager. 12. Supporting the view taken by the Single Judge, Senior Counsel for the writ petitioners contended that, the appellants herein had no locus-standi to object the approval of appointment of the 2nd writ petitioner as the Manager, because they are totally strangers as far as the society is concerned, which is the approved educational agency. 12. Supporting the view taken by the Single Judge, Senior Counsel for the writ petitioners contended that, the appellants herein had no locus-standi to object the approval of appointment of the 2nd writ petitioner as the Manager, because they are totally strangers as far as the society is concerned, which is the approved educational agency. It is pointed out that, the appellant in W.A. No. 1420/2018 (2nd respondent in the writ petition) is a person who could not establish any right in the society, as on today. His claims in the civil suit was negatived by the court of original jurisdiction as well as by the first appellate Court. He is only pursuing the cause in a second appeal, which is pending before this Court. His claim before the DEO was also to the effect that, he is a person entitled to have included as a member of the society. This would show that the said appellant is not a member of the society, at present. 13. In this regard, it will be beneficial to have a scanning of the relevant provisions in the Kerala Education Rules (KER). Chapter III therein deals with the management of private schools. Rule 1 of the Chapter III provides that, when the right to conduct the school is vested in an individual, the educational agency should be termed as Individual Educational Agency and in all other cases the educational agency shall be termed as a Corporate Educational Agency. It further provides that, the Corporate Educational Agency includes a society or other form of institutions registered under a statute. In the case at hand, it is not in dispute that the Valanchery High School Committee is a society registered under the Societies Registration Act, 1860. So the said society is the approved Corporate Educational Agency with respect to the schools concerned. Rule 3 of Chapter III provides that, the management of every aided school may be vested by the Educational Agency in a person who shall be referred as the Manager and who shall be responsible for the management of the institutions. Sub-Rule (3) provides that, in the case of corporate management, the proprietary body may choose the Manager in that behalf. Sub-Rule (3) provides that, in the case of corporate management, the proprietary body may choose the Manager in that behalf. Rule 4 of Chapter III provides that, the Educational Officer will be the competent authority to approve the appointment of the Managers made by the educational agency and also to approve the changes in the personnel of the Managers. 14. The above provisions would make it clear that the power to elect the Manager is vested with the educational agency and if the educational agency had appointed a Manager, the Educational Officer shall be competent to approve such appointment. As long as the Society continues to be the educational agency, and if the society had elected the 2nd writ petitioner as the Manager, no person who is not a member of the society can object to the same. 15. Learned counsel appearing for the appellant in W.A. No. 1308/2018 contended that, the schools in question being aided schools which are under the direct payment scheme of the Government, they are institutions discharging public functions, coming within the definition of 'State' contemplated under Article 12 of the Constitution of India. Since such institution are discharging public functions, any tax payer citizen is at liberty to challenge the decisions relating to the institutions, especially when the expenses of running such institutions are met from public exchequer, is the contention. The above argument cannot be countenanced, because appointment of the Manager is the prerogative of the educational agency and if any decision is taken within the educational agency with respect to election of a person as Manager, the department is bound to approve it, subject to satisfying the requisite qualifications/disqualifications of the person appointed. Such an appointment has nothing to do with the public functions of imparting education to the children studying in the school. Therefore we are of the opinion that, a person who is not at all connected with the affairs of the educational agency has no locus-standi to challenge the appointment of the Manager, to represent the educational agency before the authorities. If the appellants have got any dispute with respect to constitution of the society or with respect to entitlement of its Managing Committee to function in the administration of the society, those are matters which are outside the purview of the criteria for approval of appointment of the Manager. If the appellants have got any dispute with respect to constitution of the society or with respect to entitlement of its Managing Committee to function in the administration of the society, those are matters which are outside the purview of the criteria for approval of appointment of the Manager. Viewed in the said angle, it is to be held that the rejection of the approval ordered by the District Educational Officer was based on considerations which are extraneous and irrelevant. Therefore we are of the view that the findings of the learned Single Judge do not suffer from any illegality, error or impropriety. 16. Lastly, learned counsel appearing for the appellants in W.A. No. 1308/2018 raised contention that, the issue considered and decided by the learned Single Judge is a matter which ought not have been agitated under Article 226 of the Constitution of India, because of availability of the effective statutory remedy of appeal provided. Various decisions are cited to support the proposition that, when an effective statutory remedy is available, the court exercising jurisdiction under Article 226 shall not entertain any writ petition. We are of the considered opinion that, it is trite law that availability of an alternate remedy is not an absolute bar for the writ court to exercise its jurisdiction. In the case at hand, the impugned judgment specifically reveals the reasons which persuaded the learned Single Judge to decide the issue. We are of the view that those are matters which can be considered as circumstances prevailing, which justifies the court exercising the writ jurisdiction to decide the issue on merits. Therefore we are not persuaded to reverse the impugned judgment on the basis of the above said contention. 17. In the result, the above writ appeals deserve no merit and the same are hereby dismissed. We make it clear that none of the observations or findings contained herein will stand in the way of the appellants pursuing their challenges in the civil suit or appeal with respect to any matters related to the society other than approval of appointment of the Manager.