Research › Browse › Judgment

Kerala High Court · body

1979 DIGILAW 148 (KER)

STATE OF KERALA v. GOVINDAN NAIR

1979-07-16

K.BASKARAN, V.P.GOPALAN NAMBIYAR

body1979
Judgment :- 1. We do not think the learned judge was justified in passing the judgment under appeal on a petition for direction. CMP. No. 5286 of 1978 on which the judgment was passed, complained of non-compliance with the judgment in OP No. 1546 of 1976. Aggrieved by the judgment of the learned judge in the CMP. the State has preferred this appeal. The respondent moved a writ petition OP. No. 1546 of 1976 in this Court challenging a prior order passed by the Educational Authorities. A learned judge of this Court allowed that writ petition and quashed the impugned order. The relevant portion of this Court's judgment has been quoted by the learned judge in Para.2 of the judgment under appeal as follows: "A reading of Ext. P-5 shows that in categorical terms it refers only to the requirement of 12 years of service; not 12 years of service as a High School Assistant". The same view was taken by the same learned judge in OP. No.3686 of 1972, and again in OP. No. 1690 of 1974 and in OP. No. 1546 of 1976 in which the CMP. for directions which has given rise to this appeal, was filed. The direction ultimately given by the learned judge in OP. No. 1546 of 1976 was: "For the reasons given earlier, I quash Ext. P-7 and direct the Director of Public Instruction to pass a proper order in accordance with law on the petitioner's application. Certainly he will have to take into consideration the position of law in regard to Ext. P-3 and R.2 of Chapter XXVI K.E.R. which has been indicated above. The OP. is disposed of in the above terms. There will be no order as to costs." In pursuance of this judgment, the Director of Public Instruction passed an order filed as Ext. A-2 along with CMP. for direction. In that order, the Director rejected the Respondent's request to declare his seniority by taking into account his twelve years of service irrespective of whether it was as High School Assistant or not. The Respondent's grievance against this order of the Director of Public Instruction is that it was in direct violation of the judgment of this Court on the earlier occasion in OP. No 1546 of 1976. The Respondent's grievance against this order of the Director of Public Instruction is that it was in direct violation of the judgment of this Court on the earlier occasion in OP. No 1546 of 1976. He prayed for a direction to pass fresh orders on his petition, which, in effect and substance, if not in fact, amounted to a prayer to quash Ext. A-2. 2. We need not, and do not propose to, consider whether Ext. A-2 order, passed by the Director of Public Instruction was in violation of the judgment of this Court in OP. No. 1546 of 1976. Assuming this was so, was the said order liable to be quashed in a miscellaneous petition? Could a direction, for reconsideration and fresh orders issue on such petition? We think the respondent is not entitled to have the order quashed or set aside in effect, on a mere CMP. for directions. To encourage that to be done, would, we are afraid, flood this Court with miscellaneous petitions claiming substantive relief. It was inappropriate that the learned judge proceeded in effect to set aside Ext. A-2 order on such a petition. The learned judge himself has noted that ordinarily the petitioner could raise such question only by filing a fresh writ petition or by initiating other appropriate proceedings such as an application for contempt of Court. But the learned judge was unhesitatingly of the view that this Court could entertain such a petition for direction and grant relief by way of quashing Ext. A-2 order in exercise of the inherent powers of this Court. We are unable to accept or to agree with this proposition as thus stated by the learned Judge. The learned judge's judgment in effect amounts to quashing Ext A-2 order, as there was a direction to the Director of Public Instruction to pass fresh orders taking due note of the directions given in the judgment and pointing out that the judgment in OP No. 1546 of 1976 had clearly and unhesitatingly expressed the view that twelve years service irrespective of whether it was as High School Assistant or not would count for the purpose of getting the higher grade. While we are at one with the learned judge that Courts of law are there to do justice, we cannot countenance their breaking the cordon of procedural shackles. While we are at one with the learned judge that Courts of law are there to do justice, we cannot countenance their breaking the cordon of procedural shackles. We allow this appeal and set aside the judgment of the learned judge and direct that CMP.No. 5286 of 1978 will stand dismissed. We make it clear that nothing contained in this judgment will preclude the respondent from taking appropriate proceedings in accordance with law for the purpose of vindicating his rights. No order as to costs. Allowed.