V.K. Vasudevan Namboodiri v. Assistant Educational Officer, Talipparamba North, Kannur; District Educational Officer, Talipparamba, Kannur; M.P. Madhusoodhanan

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA THURSDAY, THE 25[TH] DAY OF AUGUST 2022 / 3RD BHADRA, 1944** **WA NO. 1248 OF 2022** **AGAINST THE JUDGMENT DATED 03.08.2022 IN WP(C) 8721/2022 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER IN WPC:** V.K.VASUDEVAN NAMBOODIRI AGED 69 YEARS S/O. NARAYANAN NAMBOODIRI, MANAGER, POOMANGALAM AUP SCHOOL, PANNIYOOR.P.O., KANNUR -670 142. BY ADVS. M.RAMESH CHANDER (SR.) BALU TOM BONNY BENNY GOVIND G. NAIR BEJOY JOSEPH P.J. ## **RESPONDENTS/RESPONDENTS IN WPC:** 1 ASSISTANT EDUCATIONAL OFFICER, OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER, TALIPARAMBA NORTH, KANNUR-670 141. 2 VIJAYAN.K.D., S/O. DAMODARAN, ASSISTANT EDUCATIONAL OFFICER, TALIPARAMBA NORTH, KANNUR - 670 141 RESIDING AT KOCHUKUNNEL HOUSE, UDAYAGIRI.P.O., ALAKKODE, KANNUR-670571. 3 DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, TALIPARAMBA, KANNUR - 670 141. 4 M.P.MADHUSOODHANAN, AGED 41 YEARS S/O.KUNHIKANNAN, RESIDING AT MEETHALE PURAYIL, W.A.No.1248 of 2022 2 NEAR KARUVANCHAL POST OFFICE, P.O.KARUVANCHAL, KANNUR - 670 571. R1 AND R3- SMT.B.VINITHA SR.GP R4 – SRI. K.N ABHILASH THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.No.1248 of 2022 3 **P.B.SURESH KUMAR & C.S.SUDHA, JJ. -----------------------------------------Writ Appeal No. 1248 of 2022 ----------------------------------------------------Dated this the 25[th] day of August, 2022** ## **J U D G M E N T** ## **C.S.Sudha, J.** This writ appeal is against the judgment dated 03/08/2022 in W.P.(C) No.8721/2022. The appellant is the petitioner and the respondents herein, the respondents in the writ petition. The parties and the documents will be referred to as described in the writ petition. 2. According to the petitioner, he is the approved Manager of Poomangalam AUP School, under the jurisdiction of the Assistant Educational Officer, Taliparamba North, Kannur District. The petitioner has been the Manager of the school since 2015 and he continued to be so till 2021. When his term as Manager expired, he submitted an application before the first respondent, namely, the Assistant Educational Officer, (the AEO) for approving his appointment as Manager of the school. The first respondent without notice and without hearing the petitioner, appointed the 4[th] respondent as the Manager of the School. Hence the petitioner W.A.No.1248 of 2022 4 challenged the said order in W.P.(C) No.29771/2021. This Court, as per Ext.P1 judgment dated 31/01/2022, set aside the order of the 1[st] respondent and directed him to pass orders on the application of the petitioner after hearing the petitioner as well as the 4[th] respondent. 2.1 Pursuant to Ext.P1 judgment, Ext.P2 notice was issued by the 1[st] respondent informing that hearing would be conducted on 10/03/2022 at 11:00 a.m and directed the petitioner to produce certain documents. Ext.P2 notice was addressed to both the petitioner as well as the 4[th] respondent. On 10/03/2022, when the petitioner along with his counsel appeared before the 1[st] respondent, (the 1[st] respondent has been impleaded in his personal capacity as the 2[nd] respondent) they were informed that though Ext.P2 notice had been issued to the 4[th] respondent also, a separate notice thereafter has been given to him with a different date and time for hearing and that the latter would be heard separately. This was objected to by the counsel for the petitioner, to which the 1[st] respondent responded that as per Ext.P1, the direction is only to hear both the parties and that there was no direction relating to the mode or manner in which the hearing was to be conducted. The course adopted by the 1[st] respondent in fixing different dates for hearing the parties cannot be justified. Though the petitioner's counsel had requested the 1[st] respondent to provide him a copy of the application that had been submitted by the 4[th] respondent claiming to be the Manager of the school, the request was not acceded to. Not only did the 1[st] W.A.No.1248 of 2022 5 respondent not permit the counsel for the petitioner to make his submissions, but also kept shouting at the counsel and without checking or examining the documents produced by the petitioner, expressed the opinion that they are forged and that it is the 4[th] respondent who is the rightful claimant to the post of Manager. According to the petitioner, the 1[st] respondent was in fact arguing for and on behalf of the 4[th] respondent. The petitioner was not given an opportunity to rebut the contents or to examine or verify the documents produced by the 4[th] respondent. The conduct of the 1[st] respondent showed clear bias on his part, which is against the principles of natural justice. As the petitioner does not expect to get a fair hearing from the 1[st] respondent, the writ petition was moved seeking a writ of mandamus directing the 1[st] respondent that the hearing pursuant to Ext.P2 notice be conducted by another Assistant Educational Officer within the jurisdiction of the District Educational Officer. 2.2 The 4[th] respondent has filed counter affidavit in which he contends that the Poomangalam AUP School was established in the year 1936 by his father M.P. Kunhikannan, a freedom fighter. After the demise of Kunhikannan, his wife P.P.Lakshmi was appointed as the Manager. Thereafter, as per sale deeds of the year 1986, 1992 and 2002, the property where the school is situated was transferred in the name of the 4[th] respondent. Later a Trust under the name, Malanadu Educational and Charitable Trust was formed by the fourth respondent in the year 2005 as per Exts.R4(1) and R4(2) deeds. E.N.Chandran; M.V.Rathnavalli; E.Narayanan and the W.A.No.1248 of 2022 6 fourth respondent are the members of the said Trust. The property in which the school is situated has also been transferred in the name of the Trust. The Education Department has approved the transfer in favour of the Trust. As per the above Trust deeds, a decision by 2/3 majority of the Board is necessary for induction of a new member. Such a decision has not been taken in the case of the petitioner and therefore, the petitioner has no role involvement in the Trust formed as aforesaid. 2.3 The fourth respondent had also submitted an application to approve his appointment as the Manager of the School. The first respondent directed the writ petitioner to produce certain documents for substantiating his claim to the post of Manager. However the said documents were never produced by the petitioner. The petitioner also did not produce any document(s) to show that he is a member of the Trust. In such circumstances, the first respondent allowed the application moved by the fourth respondent and approved his appointment as the Manager of the School, contends the fourth respondent. 3. The learned Single Judge by the impugned judgment, held that the materials shown by the petitioner are not sufficient to substantiate the allegation of bias attributed to the first respondent and hence the writ petition was disposed of directing the petitioner as well as the fourth respondent to appear before the first respondent on 18/08/2022 at 11 a.m. and the first respondent in turn has been directed to dispose of the matter after hearing both sides, by adverting to the W.A.No.1248 of 2022 7 contentions advanced by either side and to pass a reasoned order. Aggrieved, the petitioner has come up in appeal. 4. Heard Adv.M.Ramesh Chander, the learned Senior counsel for the appellant-petitioner; Ms.B.Vinitha, the learned Senior Government Pleader and Adv.K.Abhilash, the learned counsel for the 4[th] respondent. 5. A predisposition to decide for or against one party, without proper regard to the true merits of the dispute is bias. There must be reasonable apprehension of that predisposition, which apprehension must be based on cogent materials. The test for bias is whether a reasonable intelligent man, fully apprised of all the circumstances, would feel a serious apprehension of bias. ( **Secretary of Government v. Munuswamy, 1989 KHC 236** ). There must be reasonable evidence to satisfy that there was a real likelihood of bias. Vague suspicions of whimsical, capricious and unreasonable people should not be made the standard to regulate normal human conduct ( **International Authority of India v. K. D. Bali (1988) 2 SCC 360** ). 6. The first respondent, AEO, has been impleaded in his personal capacity as the second respondent. Though notice was issued to the second respondent in the writ petition, the writ petition was disposed of before serving notice on him. The learned Government Pleader accepted notice and appeared for the first and fourth respondents only. Since the writ petition was disposed of before serving notice on W.A.No.1248 of 2022 8 the second respondent, that is, the AEO in his personal capacity and as serious allegation of bias has been raised against the AEO, we issued notice to the officer in his personal capacity by special messenger in this appeal. The second respondent refused to accept the notice. Though the second respondent, namely, Vijayan K.D; the Assistant Educational Officer, has been given opportunity to answer the allegations of bias raised against him, he has chosen not to appear before this Court and dispute or controvert the allegations raised against him. That being the position, it can only be concluded that the second respondent has nothing to say regarding the allegations raised against him. Hence the allegation of bias raised by the petitioner stands substantiated or probabilised. 7. During the course of arguments, it was submitted by the learned senior Government Pleader that the second respondent is under orders of transfer. On behalf of the fourth respondent it was submitted that he has no faith or confidence in the Officer who is to take charge in the place of the second respondent and so hearing may be directed to be conducted by the second respondent himself in his capacity as AEO, Thalipparambu, North Kannur. On the other hand, it was submitted by the learned senior counsel for the petitioner that the matter may be directed to be heard by any Officer other than the second respondent in his capacity as AEO. In these circumstances we direct compliance of the directions in Ext.P1 judgment by an AEO in the District other than the second respondent in his capacity as AEO or the W.A.No.1248 of 2022 9 Officer who is to take charge or who has taken charge in the place of the first respondent. The District Educational Officer shall nominate the AEO who has to comply with the direction contained in Ext.P1 judgment. The writ appeal is disposed of in the above terms. Interlocutory applications, if any pending, shall stand closed. **Sd/-** **P.B. SURESH KUMAR JUDGE** **Sd/C.S.SUDHA JUDGE** jms/25.08