M MOHAMEDKUTTY Vs. STATE OF KERALA

JUDGEMENT

(1.) The Kunhimon Haji Memorial High School (KHMHS) at Alathlyur was established in 1974 by late Hamsa Haji, who died on 16-9-1993. He was the Individual Educational Agency and the Manger of the School. The fifth respondent Sainaba is the wife of late Hamsa Haji. They had nine daughters and two sons, petitioner Mohammedkutty is the eldest son and the younger son Moideenkutty, later died leaving his widow and three children. The KHMHS belonged to the deceased Hamsa Haji and the school was located tn an area of 3,5 acres of land. In 1988 Hamsa Haji proceeded for Haj and during the period of his absence, he authorized the petitioner to be the Manager of the School and the DEO approved the petitioner as the temporary Manager as per Exhibit P2 proceedings. During May 1993 Hamsa Haji became ill and he authorised the petitioner to be the Manager of the School till Hamsa Haji recovers from his illeness. the younger brother of the petitioner also had consented to the above course. Hamsa Haji did not recover from his illness and he died on 16-3-1993 and thereafter the petitioner continued to be Manager of the school without any opposition from the other legal representatives of the deceased Hamsa Haji and according to the petitioner, he is still continuing as the Manager of the School.

(2.) . After the death of Moideenkutty, the younger brother of the petitioner, all the legal representatives of the deceased Hamsa Haji including the petitioner, the fifth respondent and the wife of the deceased Moideenkutty for herself and representing her minor children executed Exhibit R5(b) agreement. The petitioner signed the above agreement as the first party. As per the above agreement, the petitioner as well as all the other legal representatives of the deceased Hamsa Haji decided to retain the school and the premises as common till the school and the compound are disposed of by sale .and that the petitioner shall continue as the Manager of the school and all decisions regarding the administration of the school shall be taken collectively by all the legal representatives of the deceased Hamsa Haji, that the petitioner, has to account for the income and expenditure and the profit and loss shall be shared among them. It was further agreed that the majority decision shall be implemented and shall be binding on all the legal representatives and if anyone acts in violation of the majority decision of the members, such person shall also be liable to compensate the members. Later, all the legal representatives of the deceased Hamsa Haji except the petitioner unanimously decided to remove the petitioner from the Managership and to appoint the fifth respondent, the mother, as the Manager of the school. The above decision had been communicated to the DEO for necessary action. As the Deo was not inclined to consider the abvoe request made by all the legal representatives of the deceased Hamsa Haji, the fifth respondent filed OP No. 2304/ 99 before this Court for directing the third respondent therein (DEO) to take appropriate decision on their representation. By Exhibit R5(d) judgment dated 28-1 -1999, this Court directed the third respondent, the DEO, to dispose of their representation in accordance with law. Accordingly, the third respondent passed Exhibit P7 order approving the appointment of the fifth respondent Sainaba, the wife of the deceased Hamsa Haji, as the Manager of the school with effect from 17-3-1999. Aggrieved by the above order, the petitioner filed Exhibit P8 revision before the Director of public Instructions, Trivandrum (DPI). By Exhibit P11 order dated 20-7-1999 the DPI dismissed Exhibit P8 revision and confirmed Exhibit P7 order of the DEO approving the appointment of the fifth respondent as the Manager of the school. Thereafter, the petitioner filed Exhibit P12 representation before the Government (first respondent) challenging Exhibit PI 1 order. The first respondent rejected Exhibit P12 representation by Exhibit P16 order dated 7-12-1999. Hence, the petitioner filed this original petition for quashing Exhibit P7 order passed by the District Educational Officer. Tirur (DEO) approving the appointment of the fifth respondent Sainaba, the mother of the petitioner, as the Manager of the Kunhimon Haji Memorial High School (KHMHS) at Alathiyur. Exhibit Pll oreder of the Director of Public Instructions, trivandrum (DPI) confirming Exhibit P7 order and dismissing the revision filed by the petitioner challenging Exhibit P7 and Exhibit P16 order passed-by the Government upholding Exhibit Pll and dismissing Exhibit P12 representation made by the petitioner before the Government.

(3.) Heard the learned counsel for the petitioner, the fifth respondent and the also the learned Government Pleader.