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2018 DIGILAW 743 (KER)

Valsala Kumari Devi. M. D/o. Late P. Narayanan Nair v. B. Srinivas I. A. S.

2018-09-19

SHAJI P.CHALY

body2018
JUDGMENT : This contempt case is filed by the petitioner in W.P.(C) No.3381 of 2015, complaining that the directives contained in the judgment dated 29.02.2016 are not complied with. As per the said judgment, Ext.P23, by which the appointment of the petitioner as Principal was declined, was found to be unsustainable under law, and directed to appoint the petitioner as the Principal of the 4th respondent's school in preference to the 6th respondent with effect from 01.04.2010, when the vacancy arose in the school and when the 6th respondent was appointed to that post. The 1st respondent was directed to issue fresh orders taking into account the directions specified above, within a period of two months from the date of receipt of a copy of the judgment. 2. According to the petitioner, the 1st respondent has not complied with the directions, and therefore, the action is wilful and deliberate, so as to interfere with the integrity and authority of this Court, and seeks appropriate action in accordance with the Contempt of Courts Act, 1971, and the Rules framed thereunder. 3. The 4th respondent has filed a detailed affidavit, wherein, it is stated that, 4th respondent has issued orders on 10.02.2017, complying with the directions of this Court and the direction in the Government Order dated 26.11.2016, evident from Annexure- R4(b). It is clear from Annexure-R4(b) that the petitioner was promoted as Principal of the 4th respondent's school on and with effect from 01.04.2010, notionally. Thereafter, Annexure-R4(c) is issued, modifying Annexure-R4(b) dated 28.02.2017, to the extent of permitting the petitioner to assume charge of Principal. Therefore, according to the 4th respondent, there is no wilful laches or disobedience on the part of the 4th respondent in complying with the directions issued by this Court. 4. Earlier, a memo is filed by the 4th respondent, producing the order of notional promotion made, stating that the directions contained in the Government Order produced as Annexure-III along with the contempt petition, are complied with. 5. The 3rd respondent has also filed an affidavit stating that, in accordance with the directives contained in the judgment, appropriate orders are issued by the Government, directing to appoint the petitioner on and with effect from 01.04.2010, as per the existing provision. 5. The 3rd respondent has also filed an affidavit stating that, in accordance with the directives contained in the judgment, appropriate orders are issued by the Government, directing to appoint the petitioner on and with effect from 01.04.2010, as per the existing provision. That apart, the Regional Deputy Director, Kannur and the Director, Higher Secondary Education were directed to approve the appointment of the petitioner on and with effect from 01.04.2010 notionally, and release monetary benefits, if any, from the date of assumption of duty as Principal, on the basis of the appointment order of the Manager. That apart, it is pointed out that, there is no delay or laches on the part of the Government in issuing the orders consequent to submission of the proposal by the Manager of the School on 01.03.2017 as per the appointment order dated 28.02.2017. Thereafter, the pay and allowances of the petitioner to the post of Principal was revised as per Rule 28A Part I KSR by pay fixation 2010, vide Government Order dated 26.02.2011, evident from Annexure-R3(a). The pay fixation 2014 was also granted to the incumbent in the scale of Principal dated 20.01.2016, as per the Office Order dated 15.06.2017, evident from Annexure-R3(b). 6. It is also pointed out that the pension proposal of the petitioner was forwarded to the Accountant General, Kerala, as per order dated 12.07.2017. Therefore, according to the 3rd respondent, all benefits to the petitioner in the post of Principal are already granted in compliance with the directions issued by this Court. 7. It is further stated that, petitioner is not entitled to the periodical annual increment in the revised scale of pay for want of declaration of probation. The probation was not declared in the cadre of Principal, because she has not passed the Account Test as per Rule 10 Chapter XXXII, KER, and that the Kerala Education Act and Rules Chapter XXXII are applicable to all Higher Secondary School Teachers. In sum and substance, the contention put forth by the 3rd respondent is that, there is no deliberate and wilful action on the part of the 3rd respondent to comply with the directions contained in the judgment. 8. In sum and substance, the contention put forth by the 3rd respondent is that, there is no deliberate and wilful action on the part of the 3rd respondent to comply with the directions contained in the judgment. 8. Petitioner has filed reply affidavits and additional affidavits to the affidavits submitted by the 4th respondent as well as the 3rd respondent, reiterating the stand adopted and also seeking aid and assistance of the judgments rendered by this Court earlier and the findings rendered by the apex court in respect of the litigation conducted by the petitioner. Various Government Orders are also produced along with the reply affidavits. Additional reply affidavit is also filed pointing out various aspects and also stating that the stand adopted by the State Government that the petitioner has not passed the Account Test cannot be sustained under law, in view of the Rules in vogue, and the findings rendered by the Courts in respect of the qualification acquired by the petitioner. That apart, it is also submitted thereunder that, since the petitioner has attained the age of 50 years, it is not necessary under the Rules to undergo the Account Test, and therefore, according to the petitioner, she has completed the probation so as to secure the entire benefits in accordance with law. 9. I have considered the rival submissions made across the Bar. 10. The sole question to be considered is, whether there is any wilful and deliberate inaction on the part of the respondents in complying with the directions issued by this Court in the judgment. The narration of facts made above, and the contentions raised by rival parties, would make it clear that the direction issued by this Court to pass orders appointing the petitioner as Principal of the 4th respondent's school on and with effect from 01.04.2010 is complied with by the 4th respondent and approved by the State Government. The State Government has also issued necessary orders accordingly. The statutory benefits, which according to the respondents, and legally due to the petitioner, are also paid. 11. The State Government has also issued necessary orders accordingly. The statutory benefits, which according to the respondents, and legally due to the petitioner, are also paid. 11. The contention put forth by the learned Senior Counsel for the petitioner is that, the entire benefits due to the petitioner are not so far released, which is evident from the affidavit filed by the 3rd respondent that since the petitioner has not passed the Account Test, petitioner is not entitled to the entire reliefs, as is claimed by the petitioner in this contempt case. 12. On evaluation of the rival submissions made across the Bar, I am of the considered opinion that, the directions issued by this Court are substantially complied with and orders are passed. The affidavits show that actions are initiated by the 4th and 3rd respondents respectively, without any culpable negligence and has passed orders in accordance with the directions issued by this Court. 13. The stand adopted by the 3rd respondent is on the basis of a legal circumstance and this Court is not expected to go deeply into the merits of the matter in a contempt proceedings. Be it noted in a contempt proceeding the sole aspect that is to be identified is, whether there is any wilful and contumacious act on the part of the respondents so as to undermine the prestige and dignity of this Court. Which thus also means, there is no legal inhibition created in adopting a fair and legal stand on the basis of an opinion formed with bonafides. True, the opinion so formed may be incorrect and illegal, but that by itself cannot be converted or transformed so as to have a cause of action for proceeding in contempt. This is more so, since petitioner is left with a remedy to seek adjudication of the issue in a suitably constituted proceedings. So much so, a court considering a contempt petition need only be satisfied that there is no deliberate and wilful action not to comply with the judgment. In the process of such adjudication, this Court need not also analyse the order passed in compliance with the direction, with forensic precision and skill, so as to unearth the illegality of the order and proceed in contempt. In the process of such adjudication, this Court need not also analyse the order passed in compliance with the direction, with forensic precision and skill, so as to unearth the illegality of the order and proceed in contempt. Apart from all these, the legal contentions raised against declining increment is demonstrative of the fact that, serious and material adjudication is required to the issue. 14. Therefore, if the petitioner has any grievance against the orders passed accordingly, and the petitioner is entitled to more benefits in accordance with the directions issued by this Court in the judgment, it is for the petitioner to pursue the said remedy. Further, evaluation of the circumstances put forth by the rival parties, instills confidence in me that there is no wilful and deliberate attempt on the part of the respondents to interfere with the integrity, prestige and dignity of this Court. That being the situation, I am of the considered opinion that, the respondents have not committed any contempt of the judgment rendered by this Court. Resultantly, the contempt case fails, accordingly it is dismissed, leaving open the liberty of the petitioner to challenge the orders passed by the Government or the 4th respondent.