SUDHEER Vs. SUSHEELA

JUDGEMENT

(1.) The point that arises for decision in this case, is the applicability of the principle 'he who decides must hear/he who hears must decide' to Governmental decisions. This Writ Appeal was referred to the Full Bench by the Division Bench entertaining the doubt, whether the decision of the Division Bench of this Court in K.P. Subair Haji v. Secretary to Government, 2007 4 KHC 62, lays down the correct position, in the light of the decision of the Apex Court in <p>A. Sahjeevi v. State of Madras , 1970 AIR(SC) 1102

(2.) Before considering the above legal question, we will presently refer to the skeletal facts of the case. The subject matter of the case is concerning the right to manage an Aided Upper Primary School. The appellant was the fourth respondent in the Writ Petition filed by the first respondent herein. The Writ Petition was filed, challenging Ext.P8 order of the Government dated 30.8.2008 in favour of the appellant. S.V.A.U.P. School,. Chelambra was owned and managed by one Mr. Appukutty, He died in 1987. He had two children, namely, Mr. Balakrishnan arid Mr. Subramanian. Both of them are no more. The first respondent is the widow of Balakrishnan and the appellant is the son of Subramanian. According to the first respondent, the abovesaid Appukutty executed Ext.PI gift deed dated 11.8.1952 in favour of his wife, Manikutty and their two children, Subramanian and Balakrishnan, transferring some of his properties. On 24.3.1983 Subramanian and Balakrishnan partitioned those properties as per ExtP2 deed. As per the partition deed, items 1 to 6 were allotted to Subramanian and items 7 and 8 were allotted to Balakrishnan. The school building situate in item 8 of the Schedule to Ext.P2 deed. After Ext.P2. Appukutty submitted a proposal before the Assistant Educational Officer (for short, "A.E.O."), for transfer of the management of the school in favour of Mr. Balakrishnan. The A.E.O., Parappanangadi, as per Ext.P3 proceedings dated 20.9.1986, approved the transfer of management of the school from Appukutty to Mr. Balakrishnan without change of ownership or title, exercising his power under Rule 3 of Chapter V of the Kerala Education Rules (for short, "the K.E.R.") Mr. Balakrishnan continued to be the Manager of the School till his death on 9-6-2006. After his death, the 1st respondent applied for change of management. The Director of Public Instruction, as per Ext. P6 order dated 24.2.2007 held that change of management in favour of the first respondent could be granted subject to her getting exemption from Rule 8(1) of Chapter III of the K.E.R. as, at the relevant time, she being a teacher of the school, without getting such exemption, cannot function as Manager of the School, The said order Ext.P6, was challenged by the appellant before the Government. The Government, by Ext.P8 order dated 30.8.2008, set aside the order of the Director of Public Instruction and authorised the A.E.O. to approve the appellant as Manager of the School, without change of ownership or title of the school. The direction in Ext.P8 was to be in force till the dispute between the parties was settled by the competent civil court.

(3.) Ext.P4, according to the first respondent, is not a legally valid Will, as nothing concerning the school remained with Appukutty to be bequethed after the execution of Ext.P1 gift deed. According to her, as per Ext. P2 partition deed, the school and the building vested in Balakrishnan. She also had a case that Ext.P4 was a concocted document. Aggrieved by Ext.P8 order passed relying on Ext. P4, the first respondent filed the Writ Petition.