P.V. JOHN Vs. DIRECTOR OF PUBLIC INSTRUCTION

JUDGEMENT

(1.) THE petitioner in this original petition is one who has obtained an aided school in a partition.The petitioner's 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's 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's father was effected and the St.John's High School,Oommannur was allotted to the petitioner while St.John's L.P.School,Oommannur and the St.Mary's U.P.School,were allotted to the petitioner's 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.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.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.) 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.