IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 541 of 2008()
1. K.N.SREENIVASAN,
... Petitioner
Vs
1. SINU S.PANICKER,
... Respondent
2. THE STATE OF KERALA, REPRESENTED BY
3. THE DEPUTY DIRECTOR OF EDUCATION,
4. THE ASSISTANT EDUCATIONAL OFFICER,
5. THE MANAGER,
For Petitioner :SRI.P.HARIDAS
For Respondent :SRI.N.SUGATHAN
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :05/02/2009
O R D E R
K. BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ.
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W.A.Nos. 541, 545 & 676 OF 2008
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Dated this the 5th day of February, 2009
J U D G M E N T
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Balakrishnan Nair, J.
W.A.Nos.541 & 545/2008 are filed by a 51A claimant for
appointment in SNDP UP School, Velliyara P.O. Though his
claim has been upheld by the Government, the learned Single
Judge set aside the same by the common judgment rendered in
W.P.(C) No.4389/2006 filed by the Manager of that school and
W.P.(C)No.4428/2006 filed by the incumbent, who was
appointed in his place. The official respondents in W.P.(C)
No.4428/2006 have filed W.A.No.676/2008. Since these three
appeals are directed against a common judgment, they are
heard and disposed of together.
W.A.No.545/2008
This appeal is treated as the main case and the exhibits
mentioned are those produced in W.P.(C) No.4389/2006. The
brief facts of the case are the following:
W.A.No541/2008 and connected cases. 2
2. The appellant was appointed as a peon in the 1st
respondent’s school for 32 days from 21.10.1970 to 21.11.1970.
The said appointment was approved and he was paid salary also.
When a vacancy in the post of peon arose on 1.4.2001, the
appellant staked his claim. But, the same was rejected by the
Manager by Ext.P1 order dated 21.6.2001. The Manager found
that the appellant was an accused in Crime No.34/1999,
registered by Thannithode Police for the offences punishable
under Sections 55(a) and (b) of the Abkari Act. The allegation
against him was that he was found storing and selling of arrack
from the courtyard of his residential building at 3.pm. on
24.5.1999. He was arrested and remanded to jail. He was in
judicial custody for 28 days. The Parent Teacher Association
filed a representation before the Manager on 18.6.2001,
bringing it to the notice of the Manager that he is a habitual
offender, who frequently creates problem consuming alcohol and
therefore he may not be appointed in the school. If he is
appointed, it was further represented that the parents will be
constrained to get Transfer Certificates for their children and
transfer them to other schools. The teachers also requested not
W.A.No541/2008 and connected cases. 3
to appoint a habitual offender like him in the school by their
letter dated 20.6.2001. The Manager also noted that the
appellant is involved in incidents involving moral turpitude and
therefore, it was not in the interest of the institution to appoint
him. So, his claim for appointment was rejected. The aggrieved
appellant moved before the Deputy Director. The said officer by
Ext.P7 upheld the claim of the appellant and directed his
appointment. The Manager moved the Government in revision.
As per the direction of this Court, the Government considered
the revision and dismissed it by Ext.P12. It was also ordered that
the salary lost by appellant shall be recovered from the Manager
and paid to him. The said decision was taken referring to the
power under Rule 7 of Chapter III of the K.E.R. The appellant, if
he was appointed, would have retired from service on 31.3.2005.
So, it was ordered that the appointment of the incumbent, who
was accommodated in the place of the appellant, may be
approved with effect from 1.4.2005.
3. Aggrieved by the said order, the Manger preferred
W.P.(C) No.4389/2006. In that writ petition, he also challenged
W.A.No541/2008 and connected cases. 4
Ext.P13 order, as per which, the Deputy Director has computed
the amount, which the Manager should pay to the appellant,
pursuant to Ext.P12 order of the Government. The rival
incumbent, who was appointed in the place of the appellant,
challenged those orders by filing W.P.(C)No.4428/206. Both
these writ petitions were heard together and allowed by the
learned Single Judge by common judgment dated 24.1.2008.
Therefore, this writ appeal and connected writ appeal are filed
by the appellant.
4. The learned counsel for the appellant submitted that
the judgment of the learned Single Judge is vitiated on various
grounds. It is submitted that Ext.P1 order was passed in
violation of the principles of Natural Justice. He was never
heard, before the adverse decision was taken against him. The
result of the decision of the learned Single Judge is the
resurrection of that order. Secondly, it is submitted that all the
criminal cases against him ended in his acquittal. Those
crimes were foisted on him by the Manager. Further, no
materials were produced before the Government to support the
W.A.No541/2008 and connected cases. 5
contention of the Manager regarding the criminal cases against
him. Therefore, the learned Single Judge should not have acted
as an original authority by looking into the materials produced
by the Manger against him. The power of judicial review should
not have been exercised by relying on materials, which were not
produced by the Manager before the Government. The learned
counsel also pointed out that the finding of the learned Single
Judge that the right under Section 51A is not a substantive right,
is unsustainable in law. In support of his submission, regarding
violation of natural justice, the learned counsel relied on a
passage from Administrative Law by H.W.R.Wade and
C.F.Forsyth (8th Edition). The said portion reads as follows:
"Procedural expectations are protected
simply by requiring that the promised
procedure be followed. Substantive
expectations are often protected
procedurally, i.e. by extending to the person
affected an opportunity to make
representations before the expectation is
dashed. Thus where recommended applicants
for hospital posts were rejected in breach of
a long established practice because they had
complained about bad conditions, they were
held entitled to a hearing before rejection.
W.A.No541/2008 and connected cases. 6
The person affected is not entitled to a
favourable decision but the trust which has
reposed in the decision-maker’s undertaking
should be protected.”
5. We heard the learned counsel appearing for the
Manager and also the learned counsel for the affected
incumbent. We also heard the learned Government Pleader, who
supported the learned counsel for the appellant. The learned
counsel for the Manager pointed out that in Ext.P1, the Manager
has relied on the pendency of the criminal cases against him.
The petitioner does not have a case that those cases were not
pending against him at the relevant time. Therefore, the
grievance raised by him regarding the lack of hearing is only
technical. In the absence of a case for him that no cases were
pending, the contentions of the appellant regarding the violation
of natural justice should be rejected. The learned counsel also
pointed out that the appellant has not filed any counter affidavit
in this writ petition. But, the appellant chose to rely on a counter
affidavit filed by him in the connected writ petition. But, in that
counter affidavit nothing is mentioned about Exts.P14 and P15,
W.A.No541/2008 and connected cases. 7
which are contemporaneous documents filed by the Parents
Teachers Association and the teachers of the school against
appointing the petitioner. So, regarding the bad character and
bad reputation of the petitioner, there were ample materials on
record. In the absence of any comments by the petitioner on
those materials, he cannot be heard to complain against the
reliance placed on them by the Manager.
6. Ext.P2, F.I.R. in Crime No.34/99, would show that the
petitioner was accused of the offences punishable under Section
55(a) and (b) of the Abkari Act. Ext.P3 is the final report in that
crime. Ext.P4 is the F.I.R. in Crime No. 77/01 registered for the
offences punishable under Section 20(b)(1) of the Narcotic
Drugs and Psychotropic Substances Act. Ext.P5 is a judgment of
the Judicial First Class Magistrate Court-II, Pathanamthitta,
convicting the appellant for the offence punishable under
Section 51A of the Kerala Police Act, on his pleading guilty to the
charge under that section. The learned counsel also pointed out
that Ext.P6 is the relevant portion of the objection filed by the
Manager before the Deputy Director. Along with that, Ext.P2
W.A.No541/2008 and connected cases. 8
and P4 were produced as Annexures 1 and 2. Annexures 3 and 4
produced along with Ext.P6 are Ext.P14 and P15. He also
pointed out that Ext.P8 is the copy of the revision filed by the
Manager before the Government. The aforementioned
documents were also produced as Annexures along with that
revision. So, the Government’s criticism that no materials were
produced before it, to support the allegations of the Manager
against the appellant is unsustainable. So, the contention of the
learned counsel for the appellant that without producing those
materials before the Government, they were produced for the
first time before the learned Single Judge is incorrect. Further,
it is pointed out that the Manager has acted only in the best
interest of the students. The petitioner, who is a notorious
criminal involved in abkari and drug cases, cannot be
accommodated as a non-teaching staff in the school. So, the
learned Single Judge has rightly interfered in the impugned
order of the Government, Ext. P12 and the order of the Dy
Director, Ext.P13, it is submitted.
W.A.No541/2008 and connected cases. 9
7. The learned Government Pleader, upon instructions,
submitted that pursuant to the order of the learned Single Judge,
the appointment of the rival claimant has been approved with
effect from his date of initial appointment.
8. We considered the rival submissions made by the
learned counsel. The first grievance raised by the learned
counsel for the appellant is that the Manager rejected his claim
without affording him a fair opportunity to place his case. But,
we notice that the Manager mainly relied on Exts.P2, P14 and
P15 to reject the claim of the appellant. The appellant does not
have a case that he is not an accused in any case and the
allegations regarding his involvement in criminal cases are
factually incorrect. So, the absence of hearing is only a technical
plea raised by the appellant. He did not have any case on merit
to be urged before the Manager. Further, we notice that both
sides were heard by the Deputy Director, by the Government and
by the learned Single Judge. Therefore, the appellant got ample
opportunity to place his case and to sustain the same. So, the
technical plea of absence of hearing by the Manager, while
W.A.No541/2008 and connected cases. 10
passing Ext.P1 has in no way prejudiced the appellant and
therefore the said plea cannot be accepted. The reliance placed
by the learned counsel on a passage from H.W.R.Wade and
C.F.Forsyth’s Administrative Law, which we have quoted above,
will not in any way advance his case.
9. The second point urged is that the Manger did not
produce any materials before the statutory authorities, they were
placed before the learned Single Judge for the first time and
therefore, while exercising the power of the judicial review, the
learned Single Judge should not have acted upon them. But, we
notice that the said contention is not sustainable. The annexures
produced along with Ext.P6 would show that the materials,
which were adverse to the appellant, which the management
wanted to rely, were produced before the Deputy Director. The
annexures to Ext.P8 also would show that they were also
produced before the Government. So, the observation of the
Government that no material was produced before it, to support
the contention of the Manager is plainly untenable. Since there
is failure to advert to the relevant materials by the Government,
W.A.No541/2008 and connected cases. 11
there is nothing wrong in the learned Single Judge in exercise of
the power of the judicial review of this Court adverting to them
and acting upon them.
10. The learned counsel handed over the judgments of the
trial court in the cases arising out of Exts.P2 and P4, First
Information Reports. He was acquitted in those cases. The
appellant’s case in the connected writ petition is that those cases
were falsely foisted upon him at the instance of the Manager. We
find that there is no such finding by the trial court in those
cases. The appellant was acquitted in those cases on technical
grounds and for the failure of the prosecution to prove its case.
11. Though the right under 51A of Chapter XIVA of the
K.E.R. is a substantive right, if the person is a known criminal
accused of offences involving moral turpitude, the management
may have a discretion in deciding whether he should be
reappointed or not. Normally, a 51A claimant has a substantive
right to get reappointment and same should be upheld. Only in
very exceptional cases, that right can be rejected. We find that
W.A.No541/2008 and connected cases. 12
this case is one such case. The special facts of this case fully
justified the action of the Manager. Therefore, we find nothing
wrong with the quashing of Exts.P12 and P13 by the learned
Single Judge.
In the result, this writ appeal is dismissed.
W.A.Nos.541 & 676/2008
In view of the dismissal of W.A.No.545/2008, these writ
appeals are also dismissed.
(K.BALAKRISHNAN NAIR, JUDGE)
(K.SURENDRA MOHAN, JUDGE)
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