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V. Dasan, Vazheyil Veedu Vs. the State of Kerala and anr. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKerala High Court
Decided On
Case NumberOriginal Petn. No. 1836 of 1962
Judge
Reported inAIR1965Ker63; [1964(8)FLR230]; (1964)ILLJ570Ker
ActsConstitution of India - Articles 16, 311 and 311(2); Evidence Act, 1872 - Sections 123 and 124
AppellantV. Dasan, Vazheyil Veedu
RespondentThe State of Kerala and anr.
Appellant Advocate V.R. Krishna Iyer and; M.M. Abdulkhader, Advs.
Respondent AdvocateGovernment Pleader
DispositionPetition dismissed
Cases ReferredGeorge v. State of Kerala
Excerpt:
.....by respondent on ground of unsuitability for appointment - appellant contended violation of article 16 - contended that verification was not proper and conclusions not based on extraneous considerations - contended that article 311 was attracted - held, no permanent ban on appointment of petitioner and any fresh application for appointment to be decided after fresh investigation of qualifications, character and antecedents. - - ' 3. ext, p-3 covers the appointment of some other candidates as well. we are inclined to accept this submission and hold that no access to the file can be extended to the petitioner in a matter like this. 10. an interesting case about the disclosure of confidential reports is re, k. .the consequence isthat we have no reliable material except the..........through the prescribed channels it was found that he was not suitable for appointment to government service. the petitioner's services which were merely provisional were therefore terminated by the respondent'.there is a further affidavit on behalf of the state, an affidavit affirmed by the home secretary on 16-11-1963. that affidavit says:'the government's conclusion in regard to the petitioner's character and antecedents was based upon the report of the deputy inspector general of police, c. i. d. and railways, trivandrum. the petitioner's allegation that irrelevant and extraneous considerations have weighed with the government in coming to its conclusion on the character and antecedents of the petitioner are incorrect and devoid of any factual foundation.the government have.....
Judgment:

M.S. Menon, C.J.

1. The petitioner was selected for recruitments an a peon by the Public Service Commission. The memorandum in that behalf is Ext. P-2 dated 27-5-1961.

2. The order of appointment is Ext. P-3.dated 27-7-1961. It says that the petitioner 'is-provisionally appointed as Peon in the Office ofthe Sales Tax Officer, Manantoddy.'

3. Ext, P-3 covers the appointment of some other candidates as well. The provisional character of all the appointments is again emphasised in the last sentence of the order. It says that the candidates are informed 'that their appointments are purely provisional.'

4. The orders impugned in the petition are Ext. P-4 dated 3-10-1961 and Ext. P-5 dated 15-3.1962. Ext. P-4 refers to Ext. P-3, mentions the fact that the petitioner 'was provisionally appointed as Peon in the office of the Sales Tax Officer, Manantoddy' and says:

'the provisional appointment made cannot be absolute and hence the individual is informed that his service will be terminated from this Department with effect from the afternoon of 31-10-1961,'

5. The affidavit on behalf of the State dated 27-8-1963 says.

'On verification of the character and, antece-dents of the petitioner through the prescribed channels it was found that he was not suitable for appointment to Government Service. The petitioner's services which were merely provisional were therefore terminated by the respondent'.

There is a further affidavit on behalf of the State, an affidavit affirmed by the Home Secretary on 16-11-1963. That affidavit says:

'The Government's conclusion in regard to the petitioner's character and antecedents was based upon the report of the Deputy Inspector General of Police, C. I. D. and Railways, Trivandrum. The petitioner's allegation that irrelevant and extraneous considerations have weighed with the Government in coming to its conclusion on the character and antecedents of the petitioner are incorrect and devoid of any factual foundation.

The Government have the right to satisfy themselves about the suitability of a candidate with reference to his character and antecedents before entertaining him into its service. It is permissible for the Government to eschew a person from Pub-lie Service on grounds that he is likely to be disloyal or to abuse the confidence which will have to be reposed in him by virtue of the appointment'.

6. The first contention of the petitioner is that there has been a violation of Article 16 of the Constitution which provides that 'there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.' The right of the State to verify, the character and antecedents of the petitioner is not disputed. The submission is that the conduct of the verification was not proper and that the conclusion reached was based on extraneous considerations.

7. In the light of what has been stated in the affidavits filed on behalf of the State dated 27-8-1963 and 16-11-1963 we are not prepared to hold that there was any defect in the process of verification adopted in this case. The only further question, therefore is whether extraneous considerations have influenced the State in terminating the services of the petitioner. If they have, the order of termination cannot be sustained and our judgment in George v. State of Kerala, O. P. No. 1421 of 1962, 1963 Ker LJ 1155 :. (AIR 1964 Kerala 238) is to that effect.

8. On the basis of the affidavits filed on be-half of the State we cannot but conclude that no extraneous or irrelevant consideration has influenced the State. A further probe into the matter is possible only by looking into the confidential papers on the subject.

9. The affidavit on behalf of the State dated 16-11-1963 says.

'Without prejudice to the claim of privilege under Sections 123 and 124 of the Indian Evidence Act, I am prepared to make available to this Hon'ble Court the file relating to the report of the Deputy inspector General of Police on the basis of which the Government's conclusions regarding the character and antecedents of the petitioner were arrived at. The file would be produced at the hearing if necessary.'

The file has been produced with the submission that no access to it should be given to the petitioner as such access would react to the detriment of the public interest by drying up possible sources of information and hampering future enquiries in similar cases. We are inclined to accept this submission and hold that no access to the file can be extended to the petitioner in a matter like this.

10. An interesting case about the disclosure of confidential reports is Re, K. Infants, I963-3 W. L. B. 408. In that case Ungoed-Thomas J. read the reports from the Official Solicitor and decided not to make a full disclosure of them to the mother of two infant children personally as he was of the opinion that such a course would not be in the interest of those children. The mother appealed to the Court of Appeal on the ground that she was entitled, as of right, to a full disclosure of all the relevant documents which the Judge had considered in reaching his decision, and succeeded. The Official Solicitor then took up the matter before the House of Lords, and the decision of the Court of Appeal was reversed. The comment of the Law Quarterly Review in its current year--October 1963--is:

'The importance of the present case is that it makes it clear that the rules of natural justice which are usually recognised in the courts do not necessarily apply to all proceedings especially it there is not an ordinary lis between two litigants.'

(ii) Counsel for the petitioner submitted that his client was not prepared to agree--as was done in O. P. 1421 of 1962, (1963) Ker LJ 1133: (AIR 1964 Kerala 238) -- to our looking into the confidential file without his client being given an opportunity to peruse it and present his explanation, and that any perusal of the file by us without his client being given such an opportunity will involve a violation of the canons of natural justice. In view of this submission we have decided not to look into the confidential file produced before us.

12. The petitioner must naturally take theconsequence of his decision. . The consequence isthat we have no reliable material except the averment of the State that no extraneous or irrelevantconsideration has influenced its judgment, andwe cannot but accept the same. It must followthat there is nothing on record to justify our interference with Ext. P-4 and that the said order muststand.

13. The second contention of the petitioner is that Article 311 of the Constitution is attracted. It is impossible to say that it is, for what we are dealing with is not a dismissal or removal as contemplated by that Article but the termination of the services of a provisional employee -- purely provisional, in the words of Ext, P-3--on the ground that his character and antecedents are such as to make him unsuitable for employment under the State.

14. The relevant portion of Ext. P-5, the second of the two orders impugned in the petition, reads as follows:

'List of persons debarred from public service during the half-year ended 31-12-1961

Sl. No.

Name and Permanent address

Post for which advised

Reasons for debarring

45

Sri V. Dasan Vazheyil Veedu, House No.3/118. Kallai, Vayallam Post, Tellicherry.

Peon

Political affiliation

The affidavit of the Home Secretary on behalf-of the State specifically states:

'The Government have no intention to impose a permanent and absolute ban against the petitioner being entertained in Government service.'

The learned Advocate-General also submitted that the State has no idea of imposing any permanent ban on the appointment of the petitioner and that any future application of his will be dealt with on the merits after a fresh investigation as to his qualifications, character and antecedents. We record the submission and hold that Ext. P-5 will not operate as a ban against any future employment of the petitioner in the service of the State.

15. The petition is disposed of as above. No costs.


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