IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 2422 of 2007()
1. STATE OF KERA;A RE[RESENTED BY THE
... Petitioner
2. THE DIRECTOR OF PUBLIC INSTRUCTION,
Vs
1. MALABAR EDUCATIONAL AND
... Respondent
For Petitioner :GOVERNMENT PLEADER
For Respondent :SRI.GEORGE POONTHOTTAM
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice K.T.SANKARAN
Dated :26/10/2007
O R D E R
H.L.DATTU, C.J. & K.T.SANKARAN,J.
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W.A. NO. 2422 OF 2007 &
C.M.APPL. NO. 1102 OF 2007
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Dated this the 26th October, 2007
JUDGMENT
H.L.DATTU, C.J.
The State has presented this Writ Appeal being aggrieved by the order
passed by the learned single Judge in W.P.(C) No.12098 of 2006, dated 28th April,
2006 and the order passed in R.P.No.871 of 2007, dated 1st October, 2007.
2. There is a delay of nearly 497 days in filing the appeal. Therefore, the
State has filed an application to condone the delay in filing the appeal. In the
normal course, we would not have taken a very strict view of the pleadings
pleaded in the application for condonation of delay. In fact, this Court in many
number of cases has condoned the delay in filing the appeal by the State
Government, keeping in view the dicta laid down by the Apex Court. In this case,
we do not intend to condone the delay for the reason which we will presently
advert by referring to what had transpired in the writ petition and the contempt
petition filed by the petitioner and the undertaking given by the authorities of the
State Government. We would like to refer those matters in extenso to sustain our
reasoning for rejecting the application filed by the State Government to condone
the delay in filing the writ appeal.
3. The Malabar Educational & Charitable Trust (‘Trust’ for short) was
before this Court in W.P.(C) No.12098 of 2006. The prayer made in the writ
petition was to direct the State Government and its authorities to issue orders
sanctioning the school in favour of the petitioner on the basis of Ext.P5
Government Order following Ext.P9 decision. The consequential relief that was
sought in the writ petition was to declare that the petitioner cannot be bypassed
W.A. NO.2422 OF 2007
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while granting High School in the aided sector in Padiyoor Grama Panchayat in
the light of Ext.P5 when Ext.P9 decision is given effect.
4. This Court, while entertaining the writ petition has passed an interim
order, dated 28th April, 2006. The interim order so passed reads as under:
“Admit. Issue notice. Post on 23.5.2006. In the meanwhile,
there will be an interim direction to the respondents not to consider
any other application for sanctioning of schools within the limits of
Padiyoor Grama Panchayat till then. In the meanwhile, the
applications submitted by the petitioner will be considered at the
earliest in the light of Exts.P5 and P9, if possible before the
commencement of the next academic year itself.”
5. After receipt of the interim order passed by this Court, the State
Government has passed the order dated 9th May, 2006. The order passed by the
State Government reads as under:
“General Education – WP(C) No.12098/06 – (M) filed by the
Malabar Educational and Charitable Trust – Court Orders –
Complied with – Orders issued.
—————————————————————————————-
GENERAL EDUCATION (F) DEPARTMENT
GO(Rt)NO.1904/06/G.Edn. Dated,Thiruvananthapuram,09-05-2006
—————————————————————————————-
Read:-1. Interim Order dated 28-04-2006 in W.P.(C) No.12098/06
(M) of the Hon’ble High Court of Kerala, Ernakulam.
2. GO(Rt) No.3895/05/G.Edn. Dated 06-08-2005.
3. GO(MS)No.08/06/G.Edn. Dated 05-01-2006.
4. GO(MS)No.65/06/G.Edn. Dated 14-02-2006.
5. Notification No.NS3/3120/06/DPIs dated 10-02-2006.
6. Judgment dated 03-03-2006 in WP(C)No.36115 of 2005-
Y of the Hon’ble High Court of Kerala.
O R D E R
The Hon’ble High court of Kerala in its interim order read as
1st paper above directed the respondents not to consider any other
W.A. NO.2422 OF 2007
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application for sanctioning of schools within the limits of Padiyoor
Grama Panchayath till the next posting date i.e. 23-05-2006. It has
also been directed to consider the application submitted by the
petitioner at the earliest in the light of Ext.P5 and P9 if possible
before the commencement of the next academic year.
2. Government – vide Government Order read as 2nd paper
above (Ext.P5) have recognised the eligibility of the petitioner for a
High School in the Padiyoor Grama Panchayath and have given an
assurance that the request would be considered on top most
priority when Government take a policy decision to sanction any
more aided High School in the State.
3. Government – vide order read as 3rd paper above
(Ext.P9) have sanctioned new High Schools in four Panchayaths
where there are no High Schools. Padiyoor in Kannur is one
among the four Panchayaths where new High School have been
sanctioned. In the light of the above Government order sanction
was also accorded to upgrade a school each in Panayam
Panchayath in Kollam and Ponmundam Panchayath in
Malappuram in the Government sector as per the GO read as 4th
paper above.
4. For sanctioning new schools in Padiyoor Panchayath in
Kannur District and Perumanna Panchayath in Kozhikode, Director
of Public Instruction had been directed to issue area notification as
per the Kerala Education Rules provisions. Accordingly the
Director of Public Instruction vide notification read as 5th paper
above notified Ward 12 in Perumanna Panchayath in Kozhikode
District and Ward 13 in Padiyoor Panchayath in Kannur District as
areas where new High School are to be opened and also called for
objection/representation if any against the decision.
5. In the meantime Government on 08-03-2006 decided not
to sanction new aided schools in the State and decided to cancel
the notification read as 5th paper above in the light of declaration of
election. The petitioner filed WP(C) No.36115 of 2005-Y read as
6th paper above in which the Hon’ble High Court directed the
respondent to take appropriate action on the application submitted
by the petitioner trust without any further delay. It has also been
directed to ensure due weightage and consideration as per the
order issued in favour of the petitioner (GO (Rt) No.3895/05/G.Edn.
Dated 06-08-2005.
6. In the light of the judgment read as 6th paper above and
in the interim order dated 28-04-2006 of the Hon’ble High Court
Government examined the request of the petitioner. Since the
notification read as 4th paper stands cancelled Government is not a
position to entertain the application of the petitioner to sanction the
W.A. NO.2422 OF 2007
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school in the Padiyoor Panchayath as requested for. The direction
contained in the interim order read as 1st paper above and in the
judgment read as 6th paper above are thus complied with.”
6. The petitioner, being of the view that by passing the order dated
9.5.2006, the Secretary to the Government, Department of General Education,
has committed an act of contempt which would fall within the meaning of the
definition “civil contempt” as defined in Section 2(b) of The Contempt of Courts
Act, 1971, had filed the Contempt Petition, C.C.C. No.619 of 2006, wherein it was
alleged that the respondent in the Contempt Petition has wilfully and deliberately
disobeyed the interim directions issued by this Court and requested this Court to
initiate appropriate contempt proceedings as envisaged under Sections 11 and 12
of the Contempt of Courts Act read with Article 215 of the Constitution of India.
7. When the Contempt Petition was posted before the learned single
Judge, the learned Judge was of the opinion that the petitioner has made out a
prima facie case for initiation of the contempt proceedings. Accordingly, in view of
the Contempt of Courts Rules prevailing in the State, the matter was referred to a
Division Bench of this Court for framing of appropriate charges against the
respondent for the disobedience of the orders and directions issued by this Court.
8. The contempt proceedings had been posted before Court on several
occasions. The respondent had filed its counter affidavit. Since this Court was
not prepared to accept the explanation offered by the respondent in the counter
affidavit filed, had directed the respondent to be present before the Court for the
purpose of framing of charges. It is at that stage the learned Advocate General of
the State had appeared for the respondent.
9. The matter had been posted before the Court on 6.9.2007. Arguments
W.A. NO.2422 OF 2007
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in length was advanced by both the sides. Thereafter, the respondent gave an
undertaking before this Court stating that he would withdraw the order passed on
9.5.2006 and pass a fresh order within a month’s time from the date of disposal of
the contempt petition.
10. The Court, after placing on record the affidavit of undertaking filed by
the respondent, was pleased to dispose of the contempt petition. The order
passed by this Court reads as under:
“Learned Advocate General appearing for the
respondent/contemnor, after arguing the matter for quite
sometime, has thought it fit to file an affidavit of the respondent/
contemnor. In that affidavit, it is stated that the respondent will
now withdraw the order passed on 09.05.2006 and then pass
fresh orders as directed by this Court on 28th April, 2006. Further,
the respondent/contemnor has offered his/her unconditional
apology for the inconvenience caused to the complainant and to
this court.
In our view, by accepting the affidavit and permitting the
respondent/contemnor to withdraw the order passed on
09.05.2006 and further by permitting them to pass fresh orders,
as directed by this court on 28th April, 2006, no prejudice will be
caused to the complainant. Therefore, we are inclined to accept
the affidavit filed by the respondent/contemnor and accordingly
we intend to grant the request made in the affidavit. In view of the
above, the following:
O R D E R
i) The affidavit filed by the respondent/contemnor is taken
on record.
ii) The respondent/contemnor is permitted to withdraw his/
her earlier order dated 09.05.2006.
iii) The respondent/contemnor shall pass fresh orders in
accordance with the interim order passed by this court in W.P.(C)
No.12098 of 2006 dated 28th April, 2006 within a period of one
month from today.
iv) The un-conditional apology offered by the respondent/
contemnor is accepted.
W.A. NO.2422 OF 2007
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v) Further proceedings in this Contempt Case are
dropped.
vi) Liberty is reserved to the complainant to approach this
court, if need arises in future. ”
11. After disposal of the Contempt Petition, for the reasons best known to
the respondent, they have filed a Review Petition, R.P.No.871 of 2007 in W.P.(C)
No.12098 of 2006, before the learned single Judge, inter alia, requesting the court
to review the order passed on 28.4.2006. The learned single Judge, after hearing
the parties to the lis, by its order dated 1.10.2007, has rejected the review petition
primarily in view of the order passed by this Court in Contempt Case No.619 of
2006. Further the Court has observed that if it had been brought to the notice of
the Court the subsequent decision rendered by the Apex Court in State of Kerala
v. Prasad (2007 (3) KLT 531), the Court might not have passed the interim order
on 28.4.2006. It is difficult for us to accept the reasoning of the learned Judge.
Be that as it may.
12. After rejection of the review petition so filed, the State Government, for
the first time, has presented this writ appeal.
13. As we have already noticed, the relief sought for by the State
Government in this writ appeal is to set aside the order passed by the learned
single Judge in W.P.(C) No.12098 of 2006, dated 28th April, 2006.
14. The order passed on 28.4.2006 is an interim order directing the
respondent to pass an appropriate order keeping in view Ext.P5 and P9 orders.
Pursuant to the direction issued by this Court, the respondent has already passed
an order, dated 9.5.2006. Since the respondent has already acted upon the
interim order passed by this Court, at this stage, it may not be necessary for this
W.A. NO.2422 OF 2007
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Court to set aside the order which has already been implemented by the State
Government. Therefore, the first relief cannot be granted by this Court at this
stage.
15. In so far as the order passed in R.P.No.871 of 2007 filed in W.P.(C)
No.12098 of 2006 to review the order passed on 28.4.2006 is concerned, we
intend to notice that when this Court was about to frame charges against the
respondent/contemnor in the contempt petition, an undertaking was given by the
respondent/contemnor, firstly, offering an unconditional apology for the
inconvenience caused to the petitioner and further giving an undertaking before
this Court that he would withdraw the order passed on 9.5.2006 and would pass a
fresh order in accordance with law. What was expected from the respondent by
this Court was that, as undertaken before this Court, he should have passed
appropriate orders in accordance with law. Instead of doing so, the respondent
has thought it fit to file a review petition and in our view, the said review petition is
rightly rejected by the learned single Judge. It is relevant at this stage to notice
certain observation made by the Apex Court in the case of T.N.Godavarman
Thirumulpad vs. Ashok Khot, (2006) 5 SCC 1. The Court observed: –
“Disobedience of this Court’s order strikes at the
very root of the rule of law on which the judicial system
rests. The rule of law is the foundation of a democratic
society. Judiciary is the guardian of the rule of law.
Hence, it is not only the third pillar but also the central
pillar of the democratic State. If the judiciary is to
perform its duties and functions effectively and remain
true to the spirit with which they are sacredly entrusted
to it, the dignity and authority of the courts have to be
respected and protected at all costs. Otherwise, the
W.A. NO.2422 OF 2007
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very cornerstone of our constitutional scheme will give
way and with it will disappear the rule of law and the
civilised life in the society. That is why it is imperative
and invariable that courts’ orders are to be followed and
complied with”.
16. Learned Advocate General would contend before us that merely
because an undertaking was given by the respondent/contemnor it does not
prevent him from approaching this Court by filing an appropriate appeal, if, for any
reason, he is aggrieved by the interim order passed by the learned single Judge.
In support of that contention, the learned Advocate General has brought to our
notice the observations made by the Apex Court in the case of P.R.Deshpande v.
Maruti Balaram Haibatti ((1998) 6 SCC 507). That was a case where in the rent
control proceedings a tenant had given an undertaking before the Court that he
would vacate and deliver vacant possession of the premises in his occupation to
the landlord. In that regard, an affidavit of undertaking was also filed before the
Court. The question that was posed and answered by the Apex Court is whether
the tenant can still maintain an appeal or revision after giving such an
undertaking. While holding that the tenant still can maintain an appeal or a
revision, the Apex Court was pleased to state as under:
“11. A party to a lis can be asked to give an undertaking to
the court if he requires stay of operation of the judgment. It is
done on the supposition that the order would remain unchanged.
By directing the party to give such an undertaking, no court can
scuttle or foreclose a statutory remedy of appeal or revision, much
less a constitutional remedy. If the order is reversed or modified
by the superior court or even the same court on a review, the
undertaking given by the party will automatically cease to operate.
Merely because a party has complied with the directions to give an
undertaking as a condition for obtaining stay, he cannot be
presumed to communicate to the other party that he is thereby
giving up his statutory remedies to challenge the order. No doubt
he is bound to comply with his undertaking so long as the order
W.A. NO.2422 OF 2007
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remains alive and operative. However, it is open to such superior
court to consider whether the operation of the order or judgment
challenged before it need be stayed or suspended having regard
to the fact that the party concerned has given undertaking in the
lower court to abide by the decree or order within the time fixed by
that court.”
17. The decision on which reliance was placed by the learned Advocate
General, in our opinion, would not assist him in any manner whatsoever. In the
instant case, the Secretary to Government, Department of General Education was
the contemnor in Contempt Petition No.619 of 2006. He had appeared in person
before the Court pursuant to the directions issued by this Court. After realising
that it may not be possible for him to sustain his defence/explanation, he had not
only offered unconditional apology to the Court but also filed an affidavit of
undertaking only to escape from the contempt proceedings. This Court did
believe a senior officer of the department, that too, when he was represented by
learned Advocate General. In all fairness, the respondent should have stuck to
his undertaking; That is what this Court would expect from a very senior and
experienced officer of the department. But, it happened otherwise. In fact, this
Court after accepting the affidavit of undertaking filed by the respondent/
contemnor, dropped the contempt proceedings and had granted time to the
respondent to implement the interim order passed this Court. Certainly it was not
with an intention either to permit him to file an appeal or a revision or to file a
review petition. When an undertaking is given to this Court, it is the solemn
undertaking and a party cannot withdraw from such an undertaking given in a
contempt proceedings. Sometimes, this Court in order to facilitate the respondent
to purge the contempt, would accept an undertaking from them and, thereafter
would drop the contempt proceedings. In the instant case also that was done and
W.A. NO.2422 OF 2007
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this Court disposed of the Contempt Case N0.619 of 2006 by its order, dated
6.9.2007. In that view of the matter, in our opinion, the decision on which reliance
was placed by the learned Advocate General would not assist him in any manner.
18. Learned Advocate General would further contend that the learned
single Judge while passing the interim order, could not have granted the main
relief itself. In our opinion, what is canvassed by the learned Advocate General is
accepted legal principles, but the learned Advocate General wants to support his
submission by relying on the decision of the Apex Court in the case of Medical
Council of India v. Rajiv Gandhi University of Health Sciences and others
((2004) 6 SCC 76). In the said decision, the Court has reiterated the principles
laid down in the case of Union of India v. Era Educational Trust ((2000) 5 SCC
57). While doing so, the Court has observed at paragraph 4 as under:
“4. We once again emphasis that the law declared by this
Court in Union of India v. Era Educational Trust that interim order
should not be granted as a matter of course, particularly in relation
to matter where standards of institutions are involved and the
permission to be granted to such institutions is subject to certain
provisions of law and regulations applicable to the same, unless
the same are complied with. Even if the High Court gives certain
directions in relation to consideration of the applications filed by
educational institutions concerned for grant of permission or
manner in which the same should be processed should not form a
basis to direct the admission of students in these institutions which
are yet to get approval from the authorities concerned or
permission has not been granted by the Council.”
19. In our opinion, even the aforesaid submission of the learned Advocate
General cannot be accepted by us. In the instant case, as we have already
noticed, this Court while entertaining the writ petition has passed an interim order
dated 28.4.2006. That interim order was implemented by the respondent by
passing the order, dated 9.5.2006. Having implemented the order pursuant to the
W.A. NO.2422 OF 2007
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interim direction issued, now it does not lie in the mouth of the State Government
to contend that the learned single Judge while passing the interim order could not
have granted the main relief. Therefore, even the second contention canvassed
by the learned Advocate General would not impress us.
20. We have narrated all these facts only for the purpose that the
appellant was fully aware of the order passed by the learned Single Judge. In
fact, by passing an order, as directed by the learned Single Judge, they had
passed an order, which according to us was nothing but deliberately flouting the
orders passed by this Court. At their instance in order to purge the contempt,
some time was given to them in the contempt proceedings. In stead of purging
the contempt they tried to get an order from the learned Single Judge by filing the
review petition, which as we have already stated is rightly rejected by the learned
Single Judge. Now the State has filed this writ appeal to set aside the interim
order passed by the learned Single Judge which is already implemented by the
respondent by passing an order contrary to the directions issued by the court. It is
only after the petitioner filed contempt proceedings against the respondent and
further when this court was about to initiate contempt proceedings by framing
charges, the respondent after giving an undertaking before this court that he
would purge the contempt, has unsuccessfully filed review petition. After doing
all this futile exercise, they have now filed the present writ appeal for the reliefs
indicated by us earlier and in filing the appeal there is delay of nearly 497 days
and to condone the delay an application and affidavit is filed. In the affidavit filed
they have only stated all the events that had taken place before this Court. In the
normal course, we would have condoned the delay in filing the appeal by the
State Government, if the delay had been satisfactorily explained, but that is not
W.A. NO.2422 OF 2007
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the case in this appeal. After going through the pleadings and after hearing the
learned Advocate General for the applicant and learned counsel Sri.George
Poonthottam, we are of the view that, the present appeal is filed is filed only to
overcome the undertaking given by the applicant in the contempt proceedings. In
our view, the parties should not be permitted to adopt these dubious method to
overcome the decision of this Court and if it is done, it would certainly affect the
dignity of this Court, which we are not prepared to sacrifice. Therefore, we are
not prepared to accept the explanation offered in the affidavit filed along with the
application for condonation of delay in filing the appeal. Therefore, the
application requires to be rejected.
20. These are the only two submissions made by the learned Advocate
General while hearing the application for condonation of delay in filing the appeal.
21. In view of the aforesaid discussion, in our opinion, this is not one of
the fit cases where delay in filing the appeal requires to be condoned by us.
Accordingly, we reject the application. Consequently, the Writ Appeal is also
rejected.
Ordered accordingly.
(H.L.DATTU)
Chief Justice
(K.T.SANKARAN)
Judge
ahz/DK.