STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT v. HABEEB MASHOOD, S/O. MOIDY
2018-03-20
DEVAN RAMACHANDRAN, P.R.RAMACHANDRA MENON
body2018
DigiLaw.ai
JUDGMENT : Ramachandra Menon, J. This matter was heard in detail on the previous dates of posting. On confronting the position with regard to the maintainability of the appeal, Sri. P.N. Santhosh - the learned senior Government Pleader sought for time to get instructions. 2. Today, the learned Government Pleader seeks for permission to withdraw the appeal. However, we find it appropriate to deal with the course and events before considering whether the prayer could be acceded to or not, in view of the particular facts and circumstances. Heard accordingly. 3. Challenge is against the judgment dated 04.10.2017 in W.P. (C) No. 20682 of 2017 passed by the learned single Judge, whereby a positive declaration and direction have been given to grant recognition to the writ petitioner's school, which was sought for, but declined as per Ext.P10. It is revealed from the materials on record that the writ petitioner's school, which is a High School, sought to have recognition by the Government and necessary proceedings were filed in this regard. Pursuant to the enquiry made by the competent authority, a report was submitted, based on which, the credentials of the respondent's/writ petitioner's school were established and in turn, name of the respondent's school was included in Ext. P4 list recommending to grant recognition. However, the fact remains that, out of the total of 40 schools, petitioner's school alone came to be excluded in Ext. P8 list; which hence was sought to be challenged by filing W.P.(C) No. 38328 of 2015. Presuming that the exclusion of the petitioner's school was an inadvertent omission, the writ petition was disposed of as per Ext. P9 judgment, directing the matter to be considered in the light of the 'then policy' of the Government with regard to granting of recognition. 4. Things took a different turn, as revealed from the records, that a fresh report was called for by the authorities concerned, as to the 'Educational need' of the locality. It was accordingly, that Annexure R1(a) report was submitted by the DPI before the Government, pointing out that there existed an 'LP school' within the radius of less than 100m and as such, it may adversely affect the rights and interests of the said school, thus withholding the recommendation. Based on the said proceedings, Ext.
It was accordingly, that Annexure R1(a) report was submitted by the DPI before the Government, pointing out that there existed an 'LP school' within the radius of less than 100m and as such, it may adversely affect the rights and interests of the said school, thus withholding the recommendation. Based on the said proceedings, Ext. P10 order was passed by the Government declining recognition, which came to be challenged before this Court again, by filing W.P.(C) No. 20682 of 2017. After hearing both the sides, the learned single Judge observed that the stand taken by the Government in their counter affidavit, in support of Ext.P10, was not sustainable under any circumstances, more so, when the school concerned [who sought to oppose the recognition to the writ petitioner's school, in turn leading to Ext. R1(a) report pursuant to the complaint preferred by the PTA of the former school] was only an L.P. School; whereas the petitioner was running a 'High School'. It was also observed that, as per the materials brought on record, no student of the LP school had joined the petitioner's school; nor was there any instance of leaving anybody from the petitioner's school to join the other school. The learned Judge observed that, when the educational need of the locality was certified by the competent authority, giving a placement to the petitioner's school in the earlier round, there was absolutely no basis to have procured Ext. R1(a) and to take a different stand, referring to some policy which was stated as in existence as on the date of consideration. It was accordingly, that the writ petition was allowed, directing the first respondent to issue orders of recognition on the basis of Ext. P4 recognition within one month, which is now sought to be challenged at the instance of the State/Department. 5. During the course of hearing, but for the assertion made by the DPI and other educational authorities with reference to the contents of Ext.R1(a) and the counter affidavit filed before the Court, that if recognition is granted to the writ petitioner's school it may adversely affect the rights and interest of Purakkad North L.P. School, in what way, the L.P. School will stand affected because of the recognition to be given to the writ petitioner's school, which is a 'High School' is not substantiated.
No instance is pointed out from the part of the authorities as to whether any student of the L.P. School had joined the petitioner's school under any circumstances. On probing the matter further, it is revealed from the records, especially Exts. P5, P5(a), P5(b) and P5(c) that the recognition sought to be given to the writ petitioner's school was objected by another faction of the same community owing allegiance to a particular political party referring to the need to take some restrictive measures in this regard. It was also requested that no recognition might be given, till the writ petitioner was brought in line. There is absolutely no averment in the counter affidavit filed by the Department as to the contents of the said documents, nor is there any mention as to the irrelevance of the said documents, if it be so. The sequence of events reveals that the recognition came to be declined only due to extraneous circumstances, which does not stand the test of law and hence was rightly interdicted by the learned single Judge. In so far as there is no dispute with regard to the contents of Exts. P5, P5(a) P5(b) and P5(c) and further since there is no dispute as to the fact that the complaint was preferred by the PTA of an 'LP school'; whereas the writ petitioner's school was a 'High school' and above all, since no instance of any adverse circumstance has been substantiated, this Court is of the firm view that no tenable ground has been established to call for interference. 6. The course and events pursued by the Department, particularly, after giving recommendation to grant recognition to the writ petitioner's school vide Ext. P4 and in taking a 'U turn' thereafter, presumably based on the complaints mentioned above by way of Exts.P5(a), (b), (c) and (d), the DPI while submitting Ext. R1(a), appears to have acted either without proper application of mind or without verifying things or else it has to be presumed that he was dancing to the tune of the somebody who was behind the curtain. This led to Ext. P10 order, which had necessarily to be set aside and it was rightly done so, by the learned single Judge.
This led to Ext. P10 order, which had necessarily to be set aside and it was rightly done so, by the learned single Judge. In other words, a total abuse of the process of law is established and as such, we cannot but deprecate the course and proceedings pursued by the Departmental authorities in the strongest possible words. According to us, this is a fit case where exemplary cost has to be awarded against the State/Departmental authorities for having acted in such a manner as mentioned above. 7. It is brought to the notice of this Court that an opinion was already given from the office of the Advocate General, to the effect that there was no merit, to have the verdict challenged. It is true, that it is for the Government to decide, even overruling the opinion, if there is actually any merit in relation to the cause of action. But then, it shall be for the party, who is taking such a decision i.e. the Government/Departmental authorities to face the consequences as well, if they ultimately lose the battle. The state must be aware of the principle behind the legal maxim “Interest rei publicae ut sit finis litium” (Roman jurisprudence -which means, it is in the interest of the State, that there should be an end to the litigation). We find support from the ruling rendered by the Apex Court in Deva Ram & Anr. Vs. Ishwar Chand & Anr. [ (1995) 7 JT 641 = (1995) 6 SCC 733 ], while explaining the scope of Section 11 of CPC in this regard. 8. Another important aspect to be noted in this context is that the State cannot plead ignorance with regard to the 'Litigation Policy' framed by the Government in the lines of the national litigation policy [framed to facilitate availing of various benefits under the different Schemes/projects, availing the financial assistance flowing from the 13th Finance Commission]. The State has evolved such a policy and on approval of the draft policy by the Government, it was published in the gazette dated 03.12.2011. Various aspects have been specifically adverted to in the Litigation Policy, including the course of action to be pursued by the State; by the law officers and also by the authorities concerned.
The State has evolved such a policy and on approval of the draft policy by the Government, it was published in the gazette dated 03.12.2011. Various aspects have been specifically adverted to in the Litigation Policy, including the course of action to be pursued by the State; by the law officers and also by the authorities concerned. It is also pointed out therein, that the endevour shall also be to see that the pendency of litigation is brought down from 15 years' to 3 years' and to reduce the burden of Courts and further to avoid avoidable/unnecessary litigation. It appears that the Departmental authorities, while deciding to prefer appeal against such a case as involved herein, virtually have either forgotten or are not aware of such 'litigation policy' formulated by the Government. It is for this reason as well, that this matter turns to be a case which deserves dismissal with exemplary cost. 9. Mr. Santhosh, the learned senior Government Pleader submits, with reference to the course and events, that one more opportunity might be given to set things right and to avoid payment of cost. It is also pointed out that, because of the change of officers, who might have dealt with the files at different points of time, some lapse/mistake had occurred in the decision making process. The learned senior Government Pleader regrets the course of action, for having wasted the precious time of this Court, which could have been effectively utilized for dealing with other cases where genuine grievance is involved. Considering the submissions made by Mr. Santhosh, the learned senior Government Pleader and also in view of the fact that the cost to be satisfied by the Government comes from tax payers' pocket, which, in turn, may lead to drainage of public money, we hold that the appeal could be permitted to be withdrawn, keeping utmost restraint. We repose confidence in the submissions of the learned Government Pleader, that appropriate instructions will be issued to all concerned, as to the displeasure expressed by this Court, especially in dealing with such matters. Based on the persuasive efforts taken by the learned Government Pleader, we reluctantly refrain from awarding the cost. The Writ Appeal stands dismissed as withdrawn. A copy of the judgment shall be forwarded to the Chief Secretary for information and further steps to alert all concerned, with specific reference to the State Litigation Policy.