IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 29TH OCTOBER 2008 / 7TH KARTHIKA 1930 WA.No. 2127 of 2008 ---------------------------- AGAINST THE JUDGEMENT IN WPC.1560015606/2008 Dated 06/10/2008 .................... APPELLANT/PETITIONER: ------------------------------------ P.S.BALASUBRAMANIAM MANAGER, PRABODHINI UPS, VAKKOM PO., (VARKALA EDUCATIONAL SUB DISTRICT) BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): --------------- 1. SECRETARY, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. GOVERNMENT OF KERALA, REP. BY THE UNDER SECRETARY, DEPARTMENT OF EDUCATION GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 4. ASSISTANT EDUCATION OFFICER, VARKALA 5. A.ASOKAN, BUNGLAVIL HOUSE, VAKKOM PO., THIRUVANANTHAPURAM. BY SR.GOVT.PLEADER SMT.K.MEERA. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L. DATTU, C.J. & A.K. BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. No. 2127 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of October, 2008 Judgment Basheer, J: In this second round of litigation the appellant, who claims to be the Manager of Prabodhini Upper Primary school at Vaikom, calls in question the legality and propriety of Ext.P8 order issued by the Government, by which the claim made by respondent No.5 to be the Manager of the school has been upheld. 2. The short question that arises for consideration is whether Ext.P8 order is vitiated by the vice of violation of principles of natural justice as alleged by the appellant. The learned single Judge before whom the petition came up, answered the above question in the negative; and it is therefore that the appellant is before us. 3. Relevant facts may be briefly noticed. 4. Appellant claimed that he was the duly appointed Manager of the school referred to above. However respondent No.5 also staked a claim to the post and contended that he had been appointed as the Manager by the Sakha, which is stated to be in management of the school. 5. It is on record that the rival claim made by respondent No.5 was initially rejected by the Assistant Educational Officer and the Director of WA.2127/2008 : 2 : Public Instruction. The matter was taken up by respondent No.5 before the Government in a revision petition. It is not in dispute that initially the Government by Ext.P3 order dated December 7, 2007 upheld the claim made by respondent No.5 and directed the Assistant Educational Officer, Varkala to take immediate action to approve his appointment as Manager. 6. The above order passed by the Government was challenged by the appellant before this Court in W.P.(C) No. 807 of 2008 primarily and solely on the ground that the Government had passed the impugned order without hearing him. The said contention was accepted by this Court, since prima facie it was found that an opportunity of hearing was not afforded to the appellant at all. Accordingly, the said order issued by the Government was set aside and the Government was directed to conduct a fresh hearing in the matter, after affording an opportunity of hearing to the appellant as well. It was thereafter that the Government had passed Ext.P8 order allowing the claim of respondent No.5 after issuing notice to the appellant to appear before it for a hearing. 7. In the writ petition it was contended by the appellant that though Ext.P6 notice was issued by the Government informing him about the scheduled date of hearing, he was not served with a copy of the revision WA.2127/2008 : 3 : petition. According to the appellant, the Government passed the impugned order without hearing him and also without giving him copies of the documents which were allegedly produced by respondent No.5 at the time of hearing. 8. The learned single Judge after specifically adverting to the above contention, took the view that the appellant was not justified in impugning the order of the Government, particularly since he had failed to take the opportunity afforded to him to be heard in the matter. 9. Ext.P8 order reveals (which is not disputed by the appellant also) that he had appeared before the Officer for hearing at about 1120 a.m. on March 18, 2008. The Secretary recorded in his order that the appellant had refused to even sign the register acknowledging his presence at the time of hearing. He went out of the cabin of the Officer without addressing any arguments. 10. According to the appellant, he had submitted Ext.P7 application after coming out of the cabin of the officer requesting to grant him a copy of the revision petition. Since the above contention was vehemently pressed by the learned counsel at the time of hearing, the learned single Judge had directed the Governments Pleader to get instructions in the matter about this WA.2127/2008 : 4 : specific contention. The learned Government Pleader after getting instructions informed the Court that such a written request, leave alone Ext.P7, had never been submitted by the appellant as contended by him before this Court. This was also one aspect which persuaded the learned Judge to hold that the appellant had deliberately refused to avail of the opportunity afforded to him to be heard in the matter. In that view of the matter, the learned Judge took the view that there was no violation of any of the principles of natural justice. 11. It is vehemently contended by learned counsel for the appellant before us that going by the first principles of law, it was mandatory that a copy of the revision petition should have been annexed to the notice of hearing. Learned counsel has invited our attention to Ext.P6 in this context. He points out that copy of the revision memorandum was not annexed to Ext.P6 notice. He further points out that the documents which were allegedly produced by respondent No.5 at the time of hearing before the Secretary were also not made available to him. In this context learned counsel has invited our attention to a few decisions. (General Auto Agencies v. Hazari Singh, AIR 1977 Rajasthan 180, John v. Mammukutty, 1985 KLT 55 and K.I. Sheperd v. Union of India, AIR WA.2127/2008 : 5 : 1988 SC 686) . We have carefully perused those judgments and in our view, the dicta laid down in those judgments have absolutely no relevance or application to the facts available in this case. 12. Here in this case before us, the appellant contends that because of the failure of the Officer to annex a copy of the revision memorandum along with the notice issued to him, the right of hearing has been rendered nugatory. He further contends that the documents which were allegedly produced by respondent No.5 at the time of hearing were also not served on him. 13. But it has to be remembered that the appellant had refused to participate in the hearing. It is admitted by the appellant himself that he had arrived at the cabin of the Officer for the purpose of hearing at about 11.20 a.m. But the assertion made by the officer in Ext.P8 is that the appellant had walked out of the cabin even without marking his attendance and that the appellant refused to participate in the hearing. This assertion in Ext.P8 order has not been denied by the appellant. Therefore there was no question of his being served with the documents which were allegedly produced by respondent No.5 at the time of hearing. 14. The appellant could have made a request before the Officer at WA.2127/2008 : 6 : the time of hearing to direct respondent No.5 to serve copy of the documents on him, in which event we have no reason to assume that such a request would not have entertained by the Officer concerned. In that view of the matter, we do not find any material illegality or irregularity in the order, much less any violation of the principles of natural justice. Though the appellant had raised a contention before the learned single Judge based on Rule 92 in Chapter XIV-A Kerala Education Rules, the above argument was not advanced before us. Therefore we have no hesitation to hold that the learned Judge was justified in dismissing the writ petition upholding Ext.P8 order passed by the Government. There is no merit in the writ appeal. It is accordingly dismissed. H.L. DATTU Chief Justice A.K. BASHEER Judge an.