Sajan Mathew vs State Of Kerala on 20 December, 2014

[Cites 11, Cited by 0]

Kerala High Court

Sajan Mathew vs State Of Kerala on 20 December, 2014

W.P (C) No. 28982/2011 is filed as a public interest litigation seeking for a direction to the 2nd respondent to conduct an enquiry in regard to the money collected and shared by respondents 6 and 7 for the admission and appointment in schools and colleges, to appoint a Commission of Inquiry under the Commissioner of Inquiry Act to enquire into the illegal collection of money for admission of students and appointment of staff in private schools and colleges in the State of Kerala and also for a direction to complete the vigilance enquiry ordered as per Ext. P11 proceedings and to quash Ext. P12.

2. The facts involved in the above writ petition would disclose that the petitioner claiming to be interested in the welfare of the public at large and regularly participating and contributing to the spiritual and social activities of the parish church, being a believer of Jesus Christ, complains about the activities of respondents 6 and 7 in deviating from the faith of Christ, service to the society and non- compliance of the law of the land. According to the petitioner, Church of South India (CSI) run various educational institutions in the State, which is not intended W.P (C) Nos. 28982/2011 & 4887 & 9340/2012 -: 2 :- to make profit and it is part of social service to the society. The 7th respondent is the Corporate Manager of certain aided schools run by CSI. The petitioner refers to certain transactions which, according to him, reflects that respondents 6 and 7 have collected Rs. 17,82,000/- for appointment of 9 persons as teachers in the aided school managed by the 7th respondent during 2006-2007. Ext. P1 is one such letter produced by him and ExtP1(a) are the cheques received from respondents 8 to 16. According to the petitioner, he had come to know about such transactions only on 13.8.2011. The matter was represented to respondents 2 and 3 for investigation. Ext. P2 is the said representation. Since no action had been taken in the matter, he has approached this Court seeking some of the reliefs aforesaid.

3. During the pendency of the writ petition, the petitioner had come to note that the Government of Kerala, as per letter dated 21.4.2012, directed the Director of Public Instruction (DPI) to take steps to conduct a vigilance enquiry on the complaints against the appointment of teachers in the schools managed by North Kerala Diocese of CSI. The DPI has issued a notice to respondents 6 and 7, which is produced as Ext. P11.

W.P (C) Nos. 28982/2011 & 4887 & 9340/2012 -: 3 :-

4. It is complained that while the vigilance enquiry was being conducted, under the influence of respondents 6 and 7, the DPI, by order dated 26.6.2012, produced as Ext. P12, granted approval to the appointment of the 7th respondent as Corporate Manager of CSI Diocesan Schools (Malabar & Wayanad) for a period of one year from 1.8.2011. The petitioner challenges the said appointment as well.

5. W.P (C) No. 4887/2012 is again filed as a public interest litigation by a retired Government employee. He claims to be a social activist interested in the field of education. He also challenges the action of the 5th respondent in collecting amounts in violation of the statutory provisions and also against the constitution of the North Kerala Diocese. He refers to various complaints given to the appropriate authorities with regard to the corruption in making appointment to the vacancies in the schools and since no action has been taken in the matter, this writ petition is filed. He also refers to 17 cheques received by CSI as pleaded in W.P (C) No. 28982/2011. He prays for a direction to respondents 1 to 3 to take appropriate action against the Corporate Manager of CSI and the management, to supervise the appointments made by the 4th respondent as the Corporate Manager and for other consequential W.P (C) Nos. 28982/2011 & 4887 & 9340/2012 -: 4 :- reliefs.

6. W.P(C)No.9340/2012 is filed by the petitioner who is qualified to be appointed as a Lecturer in Higher Secondary (Malayalam). According to him, he had worked as Guest Lecturer in Malabar Christian College during 2006 to 2008 and as a Guest Lecturer in BEPM Higher Secondary School, Thalassery. He claims to be actively involved in the affairs of CSI. The 1st respondent had sanctioned 4 Higher Secondary Schools to the CSI North Kerala Diocese during the year 2010 on condition that the schools will have only Guest Lecturer till full time posts are sanctioned by the Government. The petitioner applied for the said post, he was appointed as Guest Lecturer after a selection process in terms of Ext. P1, he joined the school and worked in that capacity from August, 2010. But, when he went to the school on 3.1.2012, he found that a new teacher had been appointed in his place and he was informed by the Headmistress to relieve from the school. He submitted a complaint Ext. P2 dated 6.1.2012. Thereafter, he came across an advertisement calling for appointment of permanent Lecturers in the schools of the same management. He submitted an application as Ext. P3. He was directed to appear for an interview on 1.3.2012. According to him, the 4th W.P (C) Nos. 28982/2011 & 4887 & 9340/2012 -: 5 :- respondent, with some committee members, held discussions with the applicants with regard to the amounts to be paid in giving the posting. Before proceeding for the interview, he was asked as to how much he has to offer for the job. Since he did not offer any amount, after the interview, he was permitted to go. According to him, no proper selection had been done in the matter. He also complains about the widespread complaints regarding the appointment to various schools under respondents 4 and 5. He also refers to the public interest litigation filed as W.P (C) No. 28982/2011 and seeks for a declaration that the entire selection process for appointment to the post for Higher Secondary School Teacher (Malayalam) in the 4 schools under the management of the 4th respondent is illegal and in violation of Rule 6 of Chapter XXXII of KER and Ext. P6 interim order passed by this Court. He also seeks for a direction to respondents 2 and 3 not to approve the appointment made by the aforesaid management.

7. In W.P (C) No. 28982/2011, an affidavit is filed by the 2nd respondent. It is contended that Ext. P2 representation was never received and the details regarding the same was known only through the writ petition. A thorough enquiry was conducted and it was W.P (C) Nos. 28982/2011 & 4887 & 9340/2012 -: 6 :- found that there was no entry regarding the said representation in the onward register maintained at the office of the 2nd respondent. Since such representation submitted by the petitioner was never received, there was no occasion to conduct any enquiry. If at all any enquiry is to be conducted, the vigilance wing of the DPI has to make necessary enquiry and forward the same to the police for further conducting enquiry in the matter. Counter affidavit is filed by the 5th respondent, who is the Bishop of CSI Diocese of North Kerala, indicating that after taking charge, new executive committee appointed the 7th respondent as the Manager. It is stated that he had no occasion to see any of the documents produced in the case. It is further averred that the 8th respondent had informed that Ext. P4 letter was issued under pressure and compulsion and he had written another letter dated 22.8.2011 withdrawing Ext. P4. It is stated that appointments to the various posts in the schools shall be made only on the basis of merit and he deprecated the attempt on the part of the authorities in collecting money for favoured appointments. Counter affidavit is filed by respondents 6 and 7 contending that the petitioner has no public interest in the matter, whereas he has filed the writ petition at the instance of his W.P (C) Nos. 28982/2011 & 4887 & 9340/2012 -: 7 :- brother Mr. C.M. Babu. The petitioner's brother was a Corporate Manager of CSI schools in Malabar and Wayanad Districts for some time. He was removed from the said post when it was found that he was unable to hold the said post. He filed O.S. No. 291/2011 before the Sub Court, Ottapalam and sought for interim injunction as well. Injunction application was dismissed on 27.8.2011 and thereafter this public interest litigation is filed on 28.10.2011. They expressed a doubt as to how Ext.P1 and other documents were received by the petitioner. According to them those documents are not normally accessible to the petitioner and that the former Manager Mr. C.M. Babu, brother of the petitioner, has handed over the documents to the petitioner which amounts to theft of documents from the Office of CSI Trust Association. Additional counter affidavit is filed by respondents 6 and 7 further clarifying the averments in the reply affidavit. It is stated that they have produced Ext. R7(e) letter dated 22.6.2012 of the Chief Manager, State Bank of India, Shornur, which indicates that the cheques were not even credited in their account. Respondents 8 to 15 in their counter affidavit inter alia contended that the petitioner has approached this Court to settle the personal score with his brother Mr. C.M. Babu as W.P (C) Nos. 28982/2011 & 4887 & 9340/2012 -: 8 :- against the respondents. It is contended that there is no element of public interest in the writ petition, whereas the petitioner is a name lender to his own brother and the writ petition is an abuse of process of court. It is contended that payment made by the deponents were as donation, and as token of their appreciation to CSI Trust Association, which was undertaking various charitable activities. According to them, they are all qualified persons appointed after conducting due selection process and their appointments had been approved as early as in the year 2007. It is also contended that there is no public interest to be protected, whereas he is only seeking personal vengeance against the management of the corporate agency for removing his brother from the position of Corporate Manager.

8. Reply affidavit is filed by the petitioner controverting the allegations raised by respondents 6 and 7 as also respondents 8 to 15.

9. The 5th respondent in W.P (C) No. 4887/2012 has filed a counter affidavit. The 5th respondent is the Corporate Manager of the CSI North Kerala Diocese Educational Agency. He has reiterated the contentions urged in the other counter affidavit. Further, it is contended that the Government sanctioned new Higher W.P (C) Nos. 28982/2011 & 4887 & 9340/2012 -: 9 :- Secondary Schools including 4 schools to the Management as per Government Order dated 20.7.2010. 12 Guest Lecturers were appointed on daily wage basis as directed by the Government. Subsequently, Government sanctioned posts in the newly opened Higher Secondary Schools with effect from 24.10.2011. Pursuant to the order of the Government, steps were taken to appoint qualified Higher Secondary Teachers. 47 posts were sanctioned in the school. 12 posts were filled up by transfer appointments from among the qualified teachers in the lower grade under same management according to their seniority and in compliance with the provisions of the Kerala Education Rules. The remaining posts were notified for selection by direct recruitment. Applications were invited by notifying the vacancies in the news papers, interview orders were issued to all the candidates and selection was done in accordance with the procedure prescribed, after forming a selection committee, which included the Government nominee, who is the Joint Secretary to Government. The certificate verification and interview were conducted in the same hall in the presence of the selection committee and therefore they denied the contrary averments regarding allegation of corruption. It is W.P (C) Nos. 28982/2011 & 4887 & 9340/2012 -: 10 :- further stated that Ext. P1 cheques were not even presented to the Bank by the CSI Trust Association in whose favour it was issued.

10. Counter affidavit is filed by the 4th respondent the Corporate Manager of CSI Schools in Malabar and Wayanad, in W.P(C)No.9340/2012 reiterating the factual statements made in counter affidavit in the other cases as well.

11. Since the issue in respect of W.P (C) No. 9340/2012 is with reference to similar subject matter, the same has been posted along with the public interest litigations and heard together. The parties and documents are mentioned hereinafter as available in W.P (C) No. 28982/2011 unless otherwise stated.

12. Heard the learned counsel for petitioners, respondents and the learned Government pleader.

13. The issue involved in the public interest litigations as well as in the writ petition filed by Subash Abel. K., is with reference to the allegation of corruption in the matter relating to appointments being made to the post of Higher Secondary School Teachers in the CSI North Kerala Diocese Educational Agency which manages several schools in Malabar and Wayanad. The main document relied upon by the petitioner to contend that money has been collected for W.P (C) Nos. 28982/2011 & 4887 & 9340/2012 -: 11 :- making appointments to the aforesaid posts is based on Ext. P1 dated 31.10.2006. This is a letter issued by the Corporate Management of CSI Schools to the Treasurer of CSI Diocese of North Kerala. The letter indicates that certain cheques received from various appointees while appointing them in the schools are being forwarded. The cheques had been crossed in favour of CSITA (CSI Trust Association) Diocese of North Kerala. Those were forwarded by the Corporate Manager. Photostat copies of the cheques were also produced as Ext. P1(a) series, which is in favour of CSITA, North Kerala Diocese, which ranges from Rs.50,000/- to Rs. 2 lakhs. In the counter affidavit filed by the respondents, it is stated that these cheques were not received for making any appointments, whereas cheques were received as donation to the CSI Trust Association. Further, it is stated that the cheques were never encashed by the Church of South India and has not been credited in the account of the Trust Association as well. It is therefore clear that there is factual dispute between the parties with regard to the question as to whether these cheques were collected for the purpose of making appointments or not. It is apparently a disputed question of fact, which cannot be decided in a writ petition.

W.P (C) Nos. 28982/2011 & 4887 & 9340/2012 -: 12 :-

14. The relief sought for by the petitioner is substantially for conducting an enquiry into the aforesaid allegation. In regard to the petitioner in W.P (C) No. 28982/2011, it is alleged that he is put up by C.M. Babu, his brother. Material evidence is also produced to show that C.M. Babu had challenged the appointment of the Corporate Manager in a civil suit and when he was not in a position to obtain appropriate orders, he had caused his brother to file the present public interest litigation. Though this fact has been denied by the petitioner, materials on record clearly indicate the relationship the petitioner has with C.M. Babu. That apart, there is no explanation as to how the petitioner had obtained Exts. P1 and P1(a) series. Admittedly, it is supplied by a person who was in the management of the schools at the relevant point of time. Therefore, there is sufficient material to indicate that the petitioner in W.P (C) No. 28982/2011 is not a bona fide litigant. The Apex court has cautioned about entertaining Public Interest Litigations which are intended to vindicate personal interest, gudge or enmity. (Subash Kumar v.State of Bihar (1991) 1 SCC

598). In Jaipur Shahar Hindu Vikas Samiti v. State of Rajasthan (2014) 5 SCC 530), Supreme Court held as under:

W.P (C) Nos. 28982/2011 & 4887 & 9340/2012 -: 13 :-

"49. The concept of public interest litigation is a phenomenon which is evolved to bring justice to the reach of people who are handicapped by ignorance, indigence, illiteracy and other downtrodden people. Through the public interest litigation, the cause of several people who are not able to approach the court is espoused. In the guise of public interest litigation, we are coming across several cases where it is exploited for the benefit of certain individuals. The courts have to be very cautious and careful while entertaining public interest litigation. The judiciary should deal with the misuse of public interest litigation with iron hand. If the public interest litigation is permitted to be misused the very purpose for which it is conceived, namely, to come to the rescue of the poor and downtrodden will be defeated. The courts should discourage the unjustified litigants at the initial stage itself and the person who misuses the forum should be made accountable for it. In the realm of public interest litigation, the courts while protecting the larger public interest involved, should at the same time have to look at the effective way in which the relief can be granted to the people whose rights are adversely affected or are at stake. When their interest can be protected and the controversy or the dispute can be adjudicated by a mechanism created under a particular statute, the parties should be relegated to the appropriate forum instead of entertaining the writ petition filed as public interest litigation."

In Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465, the Supreme Court held as under:

"14. This Court has consistently cautioned the courts against entertaining public interest litigation filed by unscrupulous persons, as such meddlers do not hesitate to abuse the process of court. The right of effective access to justice, which has emerged with the new social rights regime, must be used to serve basic human rights, which purport to guarantee legal rights and, therefore, a workable remedy within the framework of the judicial system must be provided. Whenever any public interest is invoked, the court must examine the case to ensure that there is in fact, genuine public interest involved. The court must maintain W.P (C) Nos. 28982/2011 & 4887 & 9340/2012 -: 14 :- strict vigilance to ensure that there is no abuse of the process of court and that, "ordinarily meddlesome bystanders are not granted a visa". Many societal pollutants create new problems of non-redressed grievances, and the court should make an earnest endeavour to take up those cases, where the subjective purpose of the lis justifies the need for it. (Vide P.S.R. Sadhanantham v. Arunachalam, Dalip Singh v. State of U.P., State of Uttaranchal v. Balwant Singh Chaufal and Amar Singh v. Union of India.)

15. Even as regards the filing of a public interest litigation, this Court has consistently held that such a course of action is not permissible so far as service matters are concerned. (Vide Duryodhan Sahu v. Jitendra Kumar Mishra, Dattaraj Nathuji Thaware v. State of Maharashtra and Neetu v. State of Punjab.)"

15. The respondents also have a case that the other petitioners have also been put up when it was known that the petitioner in W.P (C) No. 28982/2011 will have no locus standi to prefer a public interest litigation on account of the specific interest he is having against the management of the CSI Schools. W.P (C) No. 4887/2012 is seen filed on 27.2.2012 and W.P (C) No. 9340/2012 is filed on 11.4.2012. The complaint of the petitioner in W.P (C) No. 4887/2012 is substantially the same as that of the petitioner in the leading case.

16. In W.P (C) No. 28982/2011, we have already found that the writ petition is not filed with bona fide intentions. The petitioner in addition to seeking for a direction to conduct an enquiry into the appointments of respondents 8 to 16 has also sought for quashing W.P (C) Nos. 28982/2011 & 4887 & 9340/2012 -: 15 :- Ext. P12, an order by which their appointments have been approved by the DPI. Since we are of the view that there is no bona fides in filing the writ petition, we do not intend to entertain the above writ petition as a public interest litigation and therefore the same is dismissed.

17. As far as W.P (C) No. 4887/2012 is concerned, the writ petition is filed alleging corruption by the management of CSI Church. He has relied upon the very same documents produced by the petitioner in W.P (C) No. 28982/2011. That, by itself, would show that there is some nexus between the petitioner in W.P (C) No. 28982/2011 as well, especially when the petitioner has not disclosed as to how Ext. P1 documents were received by the petitioner. Further, perusal of the writ petition would disclose that his challenge is with reference to the appointments made. This Court cannot interfere with the appointments made by the management of an institution as the same has already been approved by the educational authorities. Such approvals are matters which cannot be decided in a public interest litigation and therefore we decline to interfere in this writ petition as well.

18. Petitioner in W.P (C) No. 9340/2012 is a W.P (C) Nos. 28982/2011 & 4887 & 9340/2012 -: 16 :- person who had participated in the selection process and now complains about a demand for bribe by certain members of the committee. This fact is disputed by the respondents. Being a disputed question of fact, we cannot decide this issue as to whether there was demand to pay bribe or not. The respondent- management had taken a contention that though the petitioner was interviewed, the petitioner was not selected. It was also mentioned that he did not produce the Degree and B.Ed. Certificates. Ext. R4(d) is the document evidencing marks given to him which is signed by all the committee members. As already indicated, this Court cannot interfere with the selection process of a management in a writ petition. It is purely within the discretion of the management of an institution to select a teacher in a Higher Secondary School. Only thing is the teacher concerned should have the necessary qualification as prescribed under the statutory provisions. The allegation regarding demand of bribe etc., being disputed questions of fact, cannot be decided in this writ petition and no direction can be issued on mere allegations. The petitioner is a person who failed to get an employment in a selection process conducted by a private management, which cannot be the basis of a claim for adjudication before W.P (C) Nos. 28982/2011 & 4887 & 9340/2012 -: 17 :- this Court in a proceeding under Article 226 of the Constitution. There is no illegality or perversity in the order passed by the Government or Governmental authorities. Hence, we do not think that the petitioner is entitled for any relief in the writ petition.

In the result, all the above writ petitions fail and they are dismissed.

Sd/-

Ashok Bhushan, Ag. Chief Justice Sd/-

A.M. Shaffique, Judge.

Tds/

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