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2010 Supreme(Ker) 824
IN THE HIGH COURT OF KERALA
K.T. Sankaran, J.
St. Mary's Church - Petitioner
Versus
State of Kerala - Respondent
W.P. (C) No. 30106 of 2008
Decided On : 11-08-2010
Advocate Appeared:
For the Petitioners: V. A. Muhammed, K. E. Hamza
For the Respondents: Kurian George Kannanthanam, S. Sreekumar, P. Martin Jose, A. Muhammed Hashim, E.N. Vishnu Namboodiri, Devan Ramacjhandran, Tony George Kannanthanam, Pirappancode V.S. Sudheer, Nisha Bose
Headnote:
Kerala Education Rules 1959 - R. 2, 3- Civil Procedure Code, 1908 - Section 9 - dispute essentially is whether Vicar of St.Mary's Church, Njarakkal or whether the Mother Superior, Little Flower Convent, Njarakkal is entitled to be the Manager of Little Flower Girls High School. A more fundamental question as to whether the School belongs to Little Flower Convent or whether it belongs to St.Mary's Church is also involved. The petitioner is the Vicar of St.Mary's Church, Njarakkal (hereinafter referred to as the 'Vicar'). The Vicar challenges Ext.P5 order dated 30.9.2008 passed by the Government upsetting Ext.P1 proceedings dated 5.10.1971 passed by the Regional Deputy Director of Public Instruction, Ernakulam - Held, It is strange to note that the Government did not say in Ext.P5 under which provision of law it exercised the power to upset an order passed by the Deputy Director of Public Instruction in the year 1971. The Government considered complicated questions of fact and law in two or three paragraphs in Ext.P5 in a cryptic manner and without the aid of any evidence, arrived at a conclusion that the Convent is the Educational Agency. A finding as the one arrived at in Ext.P5 could be arrived at even by a Civil Court only after considering the various issues and the documentary and oral evidence. On a cryptic consideration of the facts and law, a dispute which was not so easy to decide, was very easily decided by the Government in Ext.P5. I am not inclined to accept the contention that either R.3 of Chap. I Kerala Education Rules or S.35 of the Kerala Education Act confers power on the Government to pass Ext.P5 order.
K.T. Sankaran, J.
Since the parties are common and since common questions arise for consideration in these Writ Petitions, the Writ Petitions are being disposed of by this common judgment as requested by all the counsel. WP(C) No.30106 of 2008 is taken as the main case. The facts are stated herein below and the exhibits are referred to as in WP(C) No.30106 of 2008.
2. The dispute essentially is whether Vicar of St. Mary's Church, Njarakkal or whether the Mother Superior, Little Flower Convent, Njarakkal is entitled to be the Manager of Little Flower Girls High School. A more fundamental question as to whether the School belongs to Little Flower Convent or whether it belongs to St. Mary's Church is also involved. The petitioner is the Vicar of St. Mary's Church, Njarakkal (hereinafter referred to as the 'Vicar'). The Vicar challenges Ext. P5 order dated 30.9.2008 passed by the Government upsetting Ext. P1 proceedings dated 5.10.1971 passed by the Regional Deputy Director of Public Instruction, Ernakulam. By Ext. P5 order, the Government directed the District Educational Officer, Ernakulam to approve the Mother Superior, Little Flower Convent (hereinafter referred to as the 'Mother Superior')as the Manager of Little Flower Girls High School, Njarakkal. Consequently, the District Educational Officer passed Ext. P6 order dated 3.10.2008 which is also under challenge in the Writ Petition.
3. The case of the Vicar is the following :
St. Mary's UP School, Njarakkal and Little Flower High School, Njarakkal belong to St.Mary's Church Educational Agency. Little Flower High School (hereinafter referred to as the 'School') was established by the Parishioners of the Church in 1948 under the blessings of Arch Diocese of Ernakulam - Angamaly. The Constitution of the Educational Agency was approved by the Regional Deputy Director of Public Instruction, Ernakulam as per Ext. P1 order dated 5.10.1971. As per the Constitution of the Educational Agency, the Vicar of the Church shall be the Manager of the School. At the time of commencement of the school, Father Kuruvila Panjikkaran was the Vicar of the Church and as such, he was the Manager of the school. The petitioner being the Vicar of the Church is the present Manager of the School.
4. While so, the third respondent Mother Superior filed Ext. P2 petition dated 2.4.2008 before the Secretary to Government (Education Department) praying for cancelling the approval of byelaws as per Ext. P1. In Ext. P2 proceedings, the Vicar filed Ext. P4 reply dated 15.5.2008. After hearing both parties, the Government passed Ext. P5 order dated 30.9.2008 holding that the School belongs to the Little Flower Convent and the same was established by the Mother Superior of the Convent. It was also held that the ownership of the School vests with the Convent. The Government directed the District Educational Officer to approve the Mother Superior as the Manager of the school. Accordingly, the District Educational Officer passed Ext. P6 order dated 3.10.2008.
5. According to the petitioner, Ext. P1 order passed in 1971 was beyond challenge by the Mother Superior before the Government. The Government has no jurisdiction to deal with a petition like Ext. P2 and to pass an order like Ext. P5 cancelling Ext. P1 proceedings. According to the petitioner, there was absolute lack of jurisdiction on the part of the Government. The petitioner contends that if the Mother Superior was aggrieved, her remedy was only to approach the civil court. According to the petitioner, a suit would be barred by limitation, since Ext. P1 order was passed in the year 1971.
6. According to the Mother Superior, the property was purchased by the Convent as per Exts. R3(c) to R3(j) documents of title, though in some of the documents, the Convent was represented by the Vicar of the Church. The School was established in 1945 by the nuns of Little Flower Convent, before the commencement of the Kerala Education Act and Rules. The Mother Superior and t
