IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 5TH FEBRUARY 2009 / 16TH MAGHA 1930 WA.No. 541 of 2008() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.4428/2006 Dated 24/01/2008 .................... APPELLANT: 5TH RES. IN THE WRIT PETITION ----------------------- K.N.SREENIVASAN, KONDETHRAYIL, VELLIYARA P.O., AYROOR NORTH, THIRUVALLA, PATHANAMTHITTA DISTRICT. BY ADV. SRI.P.HARIDAS RESPONDENTS: PETITIONER AND RESPONDENTS 1 RO 4 IN THE W.P.(C). ---------------------- 1. SINU S.PANICKER, PEON, S.N.D.P. U.P.SCHOOL, VELLIARA P.O., PATHANAMTHITTA. 2. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, PATHANAMTHITTA. 4. THE ASSISTANT EDUCATIONAL OFFICER, VENNIKULAM (VIA), THIRUVALLA, PATHANAMTHITTA. 5. THE MANAGER, SNDP UP SCHOOL, VELLIYARA P.O., PATHANAMTHITTA DISTRICT. ADV. SRI.N.SUGATHAN FOR R1 SMT.VARSHA BHASKAR FOR R1 SRI.S.PRASANTH (AYYAPPANKAVU) FOR R1 GOVT.PLEADER, SMT.R.BINDU FOR R2 TO R4. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05/02/2009, ALONG WITH W.A.Nos.545 & 676/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. ---------------------------------------------- W.A.Nos. 541, 545 & 676 OF 2008 ---------------------------------------------- Dated this the 5th day of February, 2009 J U D G M E N T ~~~~~~~~~~~ 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) ps