The reliefs prayed for in the Writ Petition are the following: “(i) Issue a writ of certiorari or other appropriate writ, order or direction quashing Ext.P9.
(ii) Issue a writ of mandamus or other appropriate writ, order or direction commanding respondents to include the petitioner as a member of the managing board of M.T.M.Higher Secondary School, Pampakuda and permit her to act in that capacity.
(iii) Issue appropriate writ, or order declaring that petitioner is a member of the managing body of MTMHSS, Pampakuda.
(iv) Issue a writ of mandamus or other appropriate writ, order or direction commanding 2nd respondent to consider and take appropriate action on Exhibit P5.
(v) Mould and grand such other reliefs which this Hon'ble Court deems just and necessary and that may be prayed for by the Petitioner while hearing the W.P.”
2. M.T.M.High School, Pampakuda which was upgraded as M.T.M.Higher Secondary School was originally M.T.M.English Middle School. In 1123 ME, seven persons executed Ext.P1 Udampadi.
No.1 among them was Abraham Kathanar. Ext.P1 Udampadi says that the School belonged to and was in the management of Abraham Kathanar and for the development of the School and to cater to the needs of the general public, it was necessary to vest the management in a samithi consisting of seven persons who were parties to the Udampadi. Stipulations were made in Ext.P1 as to the management of the School, membership in the Board, constitution of M.T.M.English High School Managing Board, as to how members should be inducted after the demise of the members of the then existing Board, as to how the School shall function in accordance with the rules framed by the Government, about the necessity of recognition of the terms of the Udampadi by the Government etc. One among the executants of Ext.P1 Udampadi was Chinnakutty C.George. After the death of Chinnakutty C. George, his son Moncy C.Chinnakutty became the member of the Board. Moncy C.Chinnakutty died on 16.10.1997. Moncy C. Chinnakutty has three children (two sons and a daughter), namely, Reji C. Moncy, Jacob C. Moncy and Riya Mary Moncy (petitioner)). Jacob C. Moncy predeceased Moncy C. Chinnakutty on 12.6.1987. The widow of Moncy C. Chinnakutty is Sumu C. Moncy.
3. The stipulations in Ext.P1 Udampadi with respect to succession are contained in paragraphs 5 and 6 therein, which are extracted below for the sake of convenience.
“5. çÌÞVÁßæÜ ³çøÞ ¥¢·JßçaÏᢠµÞÜçÖ×¢ ¥ÏÞZAí ¨ ØíÅÞÉÈJßÜáU ®ÜïÞ ¥ÕµÞÖB{ᢠ¥ÏÞ {áæ¿ ÈcÞÏ ÉßX·ÞÎßµ{ßW ²KÞÎന ÉâVHÎÞÏᢠØíÅßÄß æºÏîáKÄᢠÈcÞÏ ÉßX·ÞÎßµ{ßW ¦VæACßÜᢠ²øÞZAí ¥ÜïÞæÄ ¥ÈcVAí Äæa ¥ÕµÞÖBZ èµÎÞx¢ æºÏîáÕÞX çÌÞVÁßæa çø¶ÞÎâÜÎáU ¥ÈáÎÄß µâ¿ÞæÄ ÏÞæÄÞøá ¥¢ ·JßÈᢠ¥ÕµÞÖÎßÜïÞJÄᢠ®KÞW ÈcÞÏÎÞÏ ÉßX·ÞÎßµ {ßW ¦VæACßÜᢠ²øÞZAí Äæa ¼àÕßĵÞÜJáÄæK ¨ ¥ÕµÞÖ¢ ÕßGáæµÞ¿áAáÕÞX ³çøÞøáJVAᢠØbÞÄdLc¢ ©IÞÏßøßAáKÄᢠ¦ÏÄßന çÌÞVÁßæa dÉçÄcµ ¥ÈáÎÄß ¦ÕÖcÎßÜïÞJÄᢠ¥BæÈ ²øÞZ Äæa ¥ÕµÞÖ¢ ÈcÞÏÎÞÏ ÉßX·ÞÎßAí ÕßGáæµÞ¿áAáK Éf¢ ¦ ÕßÕø¢ ©¿X ÄæK çø¶ÞÎâÜ¢ çÌÞVÁßæÈ ¥ùßÏߺîá æµÞçUIÄáÎÞµáKá.
6. çÌÞVÁßæÜ ²ø¢·Jßæa µÞÜçÖ×¢ ¥ÏÞ{áæ¿ ÈcÞÏÎÞÏ ¥ÕµÞÖß èÎÈV ¦ÏßøßAáµçÏÞ ÕßÆcÞVjß ¦ÏßøßAáµçÏÞ æºÏîÞX §¿ÏÞÏÞW èÎÈV dÉÞÏÉâVJß ¦ÕáµÏᢠÕßÆcÞÍcÞØ µÞÜ¢ µÝßÏáµÏᢠæºÏîáKÄáÕæø ¥ÏÞZAá çÕIß ¥ÏÞ{áæ¿ ÈcÞÏÎÞÏ øfµVJÞÕí çÌÞVÁßW ¥¢·ÎÞÏßøßAáKÄᢠ¦µáKá.”
4. After the death of Moncy C. Chinnakutty, the fourth respondent addressed Ext.P2 letter dated 20.2.1998 to the Director of Public Instruction for permission to induct Reji C. Moncy as a member of the Managing Board. In Ext.P2 it was also pointed out that a complaint dated 9.1.1998 was received from the guardian of a student against Reji C. Moncy and that complaint was also enclosed with the letter. The Director of Public Instruction, as per the order dated 20.7.1999 provisionally approved Reji C. Moncy as a member of the Managing Board of the School for a period of one year, subject to further review. The fourth respondent filed O.P.No.19484 of 1999 before the High Court challenging that order. Reji C. Moncy filed O.P.No.13596 of 1999 claiming right to be a member of the Board. A learned Single Judge dismissed O.P.No.19484 of 1999 filed by the fourth respondent and allowed O.P.No.13596 of 1999 filed by Reji C.Moncy. The matter was taken up in W.A.Nos.62 of 2000 and 63 of 2000 and the claim put forward by Reji C. Moncy was rejected on the ground that he was convicted in criminal cases. (The judgment in the said Writ Appeals is reported in 2002 (3) KLT 896.)
5. Thereafter, Sumu C. Moncy, the widow of Moncy C.
Chinnakutty, staked a claim to include her as a member of the Managing Board. Her claim was rejected by the Board on the ground that widow of a member is not entitled to be inducted as a member.
6. Sumu C. Moncy filed O.P.No.12957 of 2001 before this Court challenging the decision of the Board, which was later withdrawn. The judgment dated 7.11.2003 in O.P.No.12957 of 2001 (Ext.R4(a)) reads thus:
“The petitioner claims that under the terms of the Trust Deed, a copy of which has been produced as Ext.P1, she has a right to be included in the managing committee of the first respondent - High School. She further claims that the 2nd respondent having failed to pass an order on the representations at Exts.P6 and P7 a writ of mandamus be issued directing him to consider the matter.
2. On behalf of respondent Nos.1 and 2, it has been contended by Mr.Kurian George Kannanthanam that the right, if any, under the Trust Deed cannot be enforced through proceedings under Article 226 of the Constitution. The petitioner's remedy is only before the civil court. A mandamus cannot be issued to the Manager.
3. Faced with this situation, Mr.Philip Mathews prays for permission to withdraw the Writ Petition with liberty to approach the appropriate authority in the Department or the civil court.
Allowed as prayed for. Disposed of accordingly.
No costs.”
7. Thereafter, the petitioner staked a claim to be a member of the Managing Board. It was contended that since her brother and mother were already disqualified to be members of the Board, she is the only other person among the legal representatives of Moncy C.Chinnakutty, the erstwhile member, who could be inducted as a member of the Board. It is also stated in the Writ Petition that, to avoid any controversy, the petitioner's mother and brother had relinquished their claim for being a member of the Board and it was duly intimated to the fourth respondent as per Ext.P4 letter dated 25.4.2005. It is also stated in the Writ Petition that two female members were included in the Managing Committee of the School.
The petitioner states that she has passed B.A. (English) and B.Ed. and that she is eligible to be appointed as High School Assistant. It is also stated that there were vacancies in the School and the petitioner could be appointed, but she was not appointed in spite of her request. The petitioner submitted Ext.P5 representation to the Director of Public Instruction, Ext.P6 representation to the District Educational Officer and Ext.P7 representation to the Manager of the School to induct her as a member of the Board. Exts.P5, P6 and P7 representations are dated 11.6.2007.
8. The District Educational Officer, Muvattupuzha passed Ext.P9 order dated 30.6.2007 rejecting Ext.P6 representation submitted by the petitioner. In Ext.P9, the claim of the petitioner as such was not considered. On the other hand, it is stated that the Manager informed that no member of the Udampadi Committee or his successor has any right to transfer the right of membership in the Managing Committee to any other person without the permission of the existing Managing Committee. In Ext.P9 it is also stated that the Manager informed that the High Court had already dismissed the Writ Petition filed by the brother and mother of the petitioner.
Recording those statements, it was concluded in Ext.P9 that the District Educational Officer was not in a position to take any action in the matter.
9. The fourth respondent filed a counter affidavit, in which, it is contended as follows: “The reliefs sought for in the Writ Petition cannot be granted under Article 226 of the Constitution of India. A writ will lie only if there is failure to do a public duty or if there is violation or apprehension of violation of fundamental or statutory rights.” The dispute is only of a civil nature which can be agitated only in a civil court. As per Ext.P1 Udampadi, the petitioner has no right to be a member of the Managing Board of the School. The remedy, if any, available to the petitioner is only to file a suit. The declaratory relief prayed for in the Writ Petition cannot be granted as no materials are placed before this Court for granting such a declaratory relief. The contention of the petitioner that she is to be considered as the first among the legal heirs of Moncy C. Chinnakutty and, therefore, she is entitled to be included as a member of the Board by virtue of clause (5) of Ext.P1, is not sustainable. The petitioner cannot be considered as the first among the legal heirs of Moncy C. Chinnakutty. The contention raised by the petitioner that no permission from any member of the Board is required for the petitioner to become a member of the Board is not correct. As per Ext.P1, there can be a transfer of membership only when the member is alive. Since the petitioner's father is not alive, there can be no transfer of membership. The contention put forward by the petitioner that as daughter of late Moncy C.Chinnakutty (who was a member of the Board), she becomes a member of the Board is not correct. Answering ground (C) raised in the Writ Petition that Ext.P1 cannot be interpreted in a narrow sense so as to exclude ladies from becoming members of the Board, it is stated by the fourth respondent that there is no exclusion of ladies from becoming members of the school managing board as per Ext.P1 and that there is no restriction of right of membership in the managing board on the ground of sex. It is also admitted that, at present, there are two lady members in the managing board which itself shows that there is no restriction for ladies to become members of the Board. But those lady members were inducted since they were the eldest daughters of the deceased members.
10. The third respondent, the District Educational Officer, filed a counter affidavit. In paragraphs 3 and 4, the third respondent has not stated anything useful except stating the case put forward by the Manager in the letter submitted by him. In paragraph 5 of the counter affidavit of the third respondent, it is stated that as per Rule 4(2) of Chapter III of the Kerala Education Rules, change in the personnel of the Manager has to be approved by the Educational Officers. But the changes in the Managing Committee or Manager are made by the Managing Committee.
11. When the mother of the petitioner filed O.P.No.12957 of 2001 making a claim for being inducted as a member of the Board, a Division Bench of this Court noted the submission made by M.T.M. High School and the Manager thereof that the rights, if any, under the Trust Deed (Ext.P1) cannot be enforced through proceedings under Article 226 of the Constitution of India. The submission made by the Management that the remedy of the mother of the petitioner was only to approach the civil court and a writ of mandamus cannot be issued to the Manager was also noticed. Thereafter, the Division Bench permitted the mother of the petitioner to withdraw the Writ Petition with liberty to approach the appropriate authority in the Department or the civil court. Judicial discipline demands that I should not take a contrary view and consider the entitlement or otherwise of the petitioner to get a declaration as prayed for. The petitioner is free to approach the educational authorities or to approach the civil court. The petitioner has already approached the educational authorities. Ext.P5 representation submitted by the petitioner is pending before the Director of Public Instruction. Taking into account the peculiar facts and circumstances of the case, it would be only just and proper to issue a direction to the Director of Public Instruction (second respondent) to consider and dispose of Ext.P5 representation dated 11.6.2007 submitted by the petitioner. The petitioner shall produce a copy of Ext.P5 representation before the Director of Public Instruction so that the same can be treated as the original of Ext.P5, in case Ext.P5 is not traced out at this point of time. The Director of Public Instruction shall consider Ext.P5 representation and afford an opportunity of being heard to all the parties. Both the parties would be entitled to produce documents or to adduce evidence before the Director of Public Instruction in support of their respective contentions. The petitioner shall also forward a copy of the Writ Petition, counter affidavits filed by respondents 3 and 4 and a copy of the judgment to the Director of Public Instruction. The Director of Public instruction shall dispose of Ext.P5 representation as expeditiously as possible and, at any rate, within a period of four months from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the parties.
The Writ Petition is disposed of as above.
(K.T.SANKARAN) Judge ahz/