Ratheeshlal v. Travancore Devaswom Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY,THE 19TH DAY OF SEPTEMBER 2018 / 28TH BHADRA, 1940** ## **WP(C).No. 17090 of 2018** ## **PETITIONER/S:** **RATHEESHLAL AGED 38 YEARS, S/O.LATE RAJENDRAN, VIRAD VISWABRAHMANA MADOM, VALIYAVILA VEEDU,KEERTHI NAGAR, VELLAYANI, SANTHI VILLA, NEMAM PO,THIRUVANANTHAPURAM.** **BY ADVS. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA SMT.D.S.THUSHARA SMT.T.V.NEEMA SRI.H.PRAVEEN (KOTTARAKARA)** ## **RESPONDENT/S:** - **1 TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, NANDANCODE, THIRUVANANTHAPURAM-695 003.** - **2 THE COMMISSIONER TRAVANCORE DEVASWOM BOARD, NANDANCODE, THIRUVANANTHAPURAM-695 003.** **3 SUB GROUP OFFICER TRAVANCORE DEVASWOM BOARD MAJOR VALLAYAD DEVI TEMPLE,NEMOM PO, THIRUVANANTHAPURAM-695 020.** ## **OTHER PRESENT:** **SRI.C.K.PAVITHRAN,SC,TDB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 17090 of 2018** 2 ## **J U D G M E N T** Petitioner is a member of Viswakarama Community. The appointment of Melsanthi and Keezhsanthi in Major Vellayani Devi Temple, Nemom is made from among members of the Viswakarma Community. Petitioner claims that he has studied manthra and is well versed in the rituals of the temple. He is an aspirant of the post of Keezhsanthi/Vathi in the temple. He claims that though he was convicted in a criminal case for offence under Section 308 of IPC, he was acquitted and as at present, there is no case pending against him. 2. Petitioner had submitted Ext.P3 representation before the 2[nd] respondent requesting to consider him for appointment as Keezhsanthi, on coming to know about the vacancy which was due to **WP(C).No. 17090 of 2018** 3 arise in August 2017. He had produced certificates to substantiate his expertise and experience in the temple. Thereafter petitioner approached this Court and by Ext.P9 judgment dated 02.08.2017, the second respondent was directed to consider his case. The first respondent thereafter directed the petitioner to appear for a hearing on 19.09.2017. Petitioner submits that after the hearing he had submitted further representations Exts.P11 and P12 before the first and second respondents. 3. The 2[nd] respondent conducted a hearing on 05.05.2018 and thereafter passed Ext.P13 order rejecting the request of petitioner. On the basis of the report furnished by the the Superintendent of Police (vigilance and Security), the 2[nd] respondent found that petitioner was an accused in 4 criminal cases in which he was acquitted; apart from that while he was working in KSRTC, he was placed under suspension four times and was **WP(C).No. 17090 of 2018** 4 subjected to punishment transfer twice. Therefore it was found that though petitioner was acquitted in all the cases, he was found to have a criminal nature. Therefore it was found that such a person cannot be suitable for appointment as Santhi in a temple. It was also found that the question whether the appointment to the post in question is to be made through the Devaswom Recruitment Board or otherwise is pending before the first respondent. 4. According to the petitioner, the suitability of the petitioner to perform duties as Santhi is not to be considered on the basis of the disciplinary proceedings initiated against him while he was in another service, which does not have any connection with the duties and responsibilities of a Santhi in a temple. It is also his case that the finding that he is having criminal nature even after he was acquitted in criminal case is illegal. **WP(C).No. 17090 of 2018** 5 5. Having considered the contention on either side, I find that the character of antecedents of a candidate is a matter to be considered by the employer either before appointment or immediately after appointment. The mere fact that a person was placed under suspension may not by itself prove him to be of bad character in case it did not end in any punishment. The circumstances which arose in the case are to be looked into before rejecting one's candidature. Similarly, when petitioner is found acquitted in all the cases, a decision that he is having criminal nature cannot be taken without looking into the nature of acquittal and circumstances of each case. The question whether appointment can be denied in such cases is considered by the Apex Court in **Avatar Singh v. Union of India** [AIR 2016 (SC) 3598] while considering the issue regarding termination of services of employees who were found to have **WP(C).No. 17090 of 2018** 6 suppressed their conviction or involvement in criminal cases, at the time of appointment. Though the present case is not that of suppression, it relates to the character. Regarding the cases where there is acquittal, the Apex Court in para 38.4.3 of the judgment held as follows: “38.4.3. If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.” 6. In Ext.P13 order, the 2[nd] respondent is not seen to have considered the nature of acquittal or the circumstances which led to the cases. Without considering all these factors the 2[nd] respondent ought not have made such stigmatic observations on the character of the petitioner, adversely affecting his career. 7. Therefore the petitioner is free to **WP(C).No. 17090 of 2018** 7 approach the first respondent with an appeal. Moreover the issue as to whether the appointment is to be made through the Recruitment Board or otherwise is pending consideration of the Board. 8. Therefore in case the petitioner files an appeal before the Board within a period of 'three weeks' along with a copy of the judgment, the first respondent shall consider the same in the light of paragraph para 38.4.3 of the judgment in **Avatar Singh v. Union of India** [AIR 2016 (SC) 3598] of the judgment, and pass orders within a period of 'two months' from the date of receipt of the appeal. The findings in Ext.P13 are kept in abeyance till then. The writ petition is disposed of accordingly. Sd/- **P.V.ASHA, JUDGE.** AS **WP(C).No. 17090 of 2018** 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 : TRUE COPY OF THE APPLICATION DATED 7-4-2017.** - **EXHIBIT P2 : TRUE COPY OF THE REPLY DATED 6-52017 GIVEN UNDER THE RIGHT TO INFORMATION ACT.** - **EXHIBIT P3 : TRUE COPY OF THE APPLICATION DATED 7-7-2017.** - **EXHIBIT P4 : TRUE COPY OF THE REPRESENTATION DATED 18-7-2017.** - **EXHIBIT P5 : TRUE COPY OF THE CERTIFICATE DATED 23-4-2007 ISSUED BY THE MELSANTHI, MAJOR VELLAYANI DEVI TEMPLE, THIRUVANANTHAPURAM.** - **EXHIBIT P6 : TRUE COPY OF THE CERTIFICATE OF EXPERIENCE DATED 4-10-2017 ISSUED BY THATHIYOOR BHADRAKALI TRUST.** - **EXHIBIT P7 : TRUE COPY OF THE CERTIFICATE DATED 18-4-2016 ISSUED BY THE THETTIKKAD SREE BHADRA BHAGAVATHI YOGEESWARA TEMPLE.** - **EXHIBIT P8 : TRUE COPY OF THE CERTIFICATE OF COMPETENCY DATED 18-9-2017 ISSUED BY CONTINUING EDUCATION SUB CENTRE.** - **EXHIBIT P9 : TRUE COPY OF THE JUDGMENT IN WRIT PETITION 25626/2017 DATED 2-8-2017** - **EXHIBIT P10 : TRUE COPY OF THE LETTER DATED 14-92017 ISSUED BY THE TRAVANCORE DEVASWOM BOARD.** - **EXHIBIT P11 : TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE** **WP(C).No. 17090 of 2018** 9 ## **THE 1ST RESPONDENT DATED 25-9-2017.** **EXHIBIT P12 : TRUE COPY OF THE REPRESENTATION ON 1-5-2018 SUBMITTED BY THE PETITIONER BEFORE THE TRAVANCORE DEVASWOM BOARD. EXHIBIT P13 : TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 10-5-2018.**