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2025 DIGILAW 2124 (KER)

BSD Education Society v. Ishita Roy

2025-08-01

ANIL K.NARENDRAN, MURALEE KRISHNA S.

body2025
JUDGMENT : Muralee Krishna, J. This Contempt Case (Civil) is filed by the appellant in W.A. No.2536 of 2019 on the file of this Court, under Section 12 of the Contempt of Courts Act, 1971, alleging non-compliance of the directions contained in the judgment dated 04.03.2024 issued by this Court while allowing the writ appeal. 2. The petitioner filed W.P.(C)No.41845 of 2018, challenging the Government Order by which the application filed by the petitioner for permission to start a new Arts and Science College in the aided sector was rejected. By the judgment dated 02.12.2019, the learned Single Judge upheld the Government Order and dismissed the writ petition. Being aggrieved, the petitioner filed W.A.No.2536 of 2019 and by the judgment dated 04.03.2024 a Division Bench of this Court allowed the writ appeal directing the State Authority to pass fresh orders keeping in mind that the object of the petitioner is to establish the College in Neyyattinkara Taluk where the Nadar community is one of the dominant communities and the fact that permission has been granted to SC/ST community as per G.O.(MS) No.572/2021/HEDN. It is alleging non-compliance of the said direction by the Principal Secretary, Higher Education Department, who was the 2 nd respondent in the writ appeal, the present contempt petition has been filed by the petitioner-appellant. 3. On 27.03.2025, when this contempt case came up for consideration, at the request of the learned Senior Government pleader, the case was adjourned to 10.04.2025, making it clear that if a decision was not taken till that date, it is open to the respondent to take the decision before the next hearing date. 4. On 10.04.2025, when this contempt case was taken up for consideration, the learned Senior Government Pleader submitted that the judgment of the Division Bench dated 04.03.2024 in W.A.No.2536 of 2019 was complied with and sought time to place the said fact on record by way of an affidavit. However, the learned Senior Counsel appearing for the petitioner submitted that the judgment was not complied with. 5. Along with a memo dated 07.04.2025, the learned Senior Government Pleader produced a Government Order dated 06.04.2025 bearing No. G.O.(Rt) No.441/2025/HEDN. It is stated in the memo that in obedience to the directions in the judgment in the writ appeal, the Government has issued the said Order. 6. 5. Along with a memo dated 07.04.2025, the learned Senior Government Pleader produced a Government Order dated 06.04.2025 bearing No. G.O.(Rt) No.441/2025/HEDN. It is stated in the memo that in obedience to the directions in the judgment in the writ appeal, the Government has issued the said Order. 6. On 09.07.2025, after hearing the arguments of the learned Senior Counsel for the petitioner in part, this Court directed the Registry to incorporate the Judges’ papers in W.A. No.2536 of 2019 along with this contempt case. 7. Heard the learned Senior Counsel for the petitioner-appellant and the learned Senior Government Pleader. 8. The learned Senior Counsel addressed extensive arguments inviting our attention to various writ petitions filed by the petitioner before this Court seeking the relief that was finally claimed in W.P.(C)No.41845 of 2018 and the various orders passed by the Government in consequence to the directions issued by this Court in those writ petitions. According to the learned Senior Counsel, the order dated 06.04.2025 produced by the learned Senior Government Pleader, along with the memo dated 07.04.2025, is not in consonance with the direction issued by this Court in the judgment dated 04.03.2024 in the writ appeal. The passing of an order not in terms of the letter and spirit of the directions of this Court is a civil contempt, and hence, the respondent may be proceeded against under the provisions of the Contempt of Courts Act, 1971. The learned Senior Counsel relied on the judgment of the Apex Court in Anjuman-E-Islam v. State of Karnataka and others [ (2001) 9 SCC 465 ] in support of his arguments. 9. On the other hand, the learned Senior Government Pleader would argue that by Annexure-1 judgment dated 04.03.2024 in W.A.No.2536 of 2019, this Court directed the respondent to consider the application of the petitioner on merits and the manner in which the said application has to be disposed of is not stated in that judgment. It is clarified by this Court as per Annexure 5 order dated 18.11.2024 in I.A. No. 2 of 2024 filed by the State for extension of time to comply with the directions in the judgment dated 04.03.2024 in W.A.No.2536 of 2019 that the decision to start an aided college is a policy decision of the Government. It is clarified by this Court as per Annexure 5 order dated 18.11.2024 in I.A. No. 2 of 2024 filed by the State for extension of time to comply with the directions in the judgment dated 04.03.2024 in W.A.No.2536 of 2019 that the decision to start an aided college is a policy decision of the Government. In view of that order granting extension of time, the contempt case previously filed by the petitioner as Contempt Case(C)No.2080 of 2024 was closed by Annexure 6 order dated 18.11.2024. The Government took a decision as directed in the judgment in the writ appeal by G.O.(Rt)No.441/2025/HEDN dated 06.04.2025, and there is no prima facie case to proceed against the respondent under the provisions of the Contempt of Courts Act 1971. In support of her arguments, the learned Senior Government Pleader relied on the judgment of the Hon’ble Apex Court in Prithawi Nath Ram v. State of Jharkhand [(2004) 7 SCC 261] and that of this Court in Rajappan Nair v. Stephen Joseph [ 2005 (2) KLT 345 ] . 10. The grievance of the petitioner is that, though by Annexure-1 judgment dated 04.03.2024 in W.A. No.2536 of 2019, this Court directed the respondent to consider the application of the petitioner to start an aided Arts and Science College at Neyyattinkkara Taluk, the same was rejected by the Government, which is against the implied direction in the said judgment to allow the application of the petitioner. 11. The issue to be considered in this contempt case is whether the judgment dated 04.03.2024 in W.A.No. 2536 of 2019 directs the respondent to dispose of the application filed by the petitioner to start an aided College of Arts and Science, in a particular manner and whether the order dated 06.04.2025 issued by the Government bearing No.G.O.(Rt) No.441/2025/HEDN violates the said direction which will attract the provisions of the Contempt of Courts Act, 1971, so as to find a prima facie case of civil contempt against the respondent? 12. As per Section 2 (a) of the Contempt of Courts Act, 1971, Contempt of Court means civil contempt or criminal contempt. As per Section 2 (b), civil contempt means willful disobedience to judgment, decree, direction, order, writ, or other process of a court, or the willful breach of an undertaking given to a court. 12. As per Section 2 (a) of the Contempt of Courts Act, 1971, Contempt of Court means civil contempt or criminal contempt. As per Section 2 (b), civil contempt means willful disobedience to judgment, decree, direction, order, writ, or other process of a court, or the willful breach of an undertaking given to a court. In the instant case, we are concerned about the civil contempt, since the allegation against the respondent is that she wilfully did not comply with the direction in the judgment of this Court in W.A.No.2536 of 2019. Therefore, we are not entering into the details of criminal contempt as defined under Section 2 (c) of the Act. 13. Section 12 of the Contempt of Courts Act provides for punishment for contempt of Court. The procedure to be followed when the contempt is on the face of the Supreme Court or the High Court is provided under Section 14 of the Contempt Act. Section 15 deals with cognisance of criminal contempt, other than the cases covered in section 14. Section 16 speaks about the contempt by a Judge, Magistrate or other person acting judicially. Section 17 deals with the procedure after cognizance of a criminal contempt under Section 15 . Section 19 of the Act provides for appeals. 14. By virtue of power under Article 215 of the Constitution of India and Section 23 of the Contempt Act, the Kerala High Court has framed the Contempt of Courts (High Court of Kerala) Rules 1988, which deals with the procedural aspects. Rule 4 mentions how the parties to a contempt proceedings have to be described. Rule 5 describes the contents of a contempt petition. Rule 6 says that every proceeding for contempt shall be dealt with by a Bench of not less than two Judges, and this Rule was subsequently struck down by a Division Bench of this Court in Jyothilal K. R., IAS and Another v. Mathai M. J. [ 2014 (1) KLT 147] . Rule 7 deals with the procedure for the initiation of suo motu proceedings, and Rule 8 deals with reference by a Subordinate Court alleging contempt and the enquiry to be made by the High Court before making a reference under Section 15 of the Act about the circumstances leading to the reference. Rule 9 deals with the preliminary hearing and notice. Rule 9 deals with the preliminary hearing and notice. The procedure after issuance of notice is dealt with under rules 10 to 17. As per Rule 10, service of notice shall be effected in the manner specified in the Rules of the High Court or in such other manner as may be directed by the Court. Rule 12 deals with the appearance of the respondent, and Rule 13 deals with the reply by the respondent. Rules 14 to 17 deal with hearing, trial and execution of sentence. 15. We have perused the paper book in W.A. No.2536 of 2019 incorporated by the Registry as directed on 09.07.2025. From the materials on record, we notice that the request for starting an aided Arts and Science College was made by the petitioner to the Government by Ext.P3 representation dated 08.02.2016 for the academic year 2016-2017. Seeking a direction to the respondent to consider that representation, the petitioner approached this Court for the first time by filing W.P.(C)No.6345 of 2016. By Ext.P4 judgment dated 19.02.2016, this Court directed the Principal Secretary, Higher Education Department, Government Secretariat to consider that representation within a period of one month from the date of receipt of a copy of that judgment. By Ext.P5 order dated 19.05.2016, the Government rejected that request, holding that the Government have examined the matter in detail in consultation with DCE and found that there is no need to start a new aided Arts and Science College in the proposed area as there are sufficient Arts and Science Colleges around the proposed area. 16. Again, the petitioner approached this Court against Ext.P5 decision by filing W.P.(C)No.18946 of 2016. By Ext.P6 judgment dated 10.08.2016, this Court allowed the writ petition and quashed Ext.P5 order of the Government and further directed the Government to consider Ext.P3 representation afresh with notice to the petitioner and take appropriate decision thereon within a period of six weeks from the date of receipt of a copy of that judgment. Paragraphs 4 to 6 of that judgment read thus; "4. From the materials available on record, it is not clear whether the Government have accorded sanction to any community to establish a college in the aided sector without assessing the educational need of the locality. Paragraphs 4 to 6 of that judgment read thus; "4. From the materials available on record, it is not clear whether the Government have accorded sanction to any community to establish a college in the aided sector without assessing the educational need of the locality. If the Government have granted permissions to establish colleges without conducting a study as to the need of the locality especially in the aided sector, the said permissions would be per se illegal. If the Government evolves a policy to grant permission to backward communities to establish colleges in the aided sector, the same can be sanctioned only in an area where there exists a need. In the circumstances, even if it is taken that the Government have accorded sanction to other organisations to establish colleges in the aided sector without conducting a study as to the need of the locality, this Court cannot direct the Government to consider the case of the petitioner without conducting a study as to the need of the locality, for, the same would amount to extension of the benefit of the illegality to the petitioner. 5. It is seen that the stand taken by the Government in Ext.P5 is that there are four colleges in the proposed area and that therefore there is no need to establish a new college in the area. Ext.P3 request submitted by the petitioner would indicate that the petitioner has sought permission to establish a college at Neyyattinkara. The specific case of the petitioner is that out of the four colleges referred to in Ext.P5, three colleges are not situated at Neyyattinkara. Ground A of the writ petition reads thus: “A. The report of the 3 rd respondent Director of collegiate education that there are four aided/Government colleges functioning around the proposal area is factually incorrect and ill-conceived. Two out of the four colleges referred to in his report and extracted in Exhibit-P5, i.e. the VTM NSS College, Dhanuvachapuram and the KNM Government College, Kanjiramkulam are situated in other Assembly constituencies in the district viz., Parassala and Kovalam constituencies and the 3 rd one i.e., Christian College, Katakkada is situated in a different Taluk viz. the Nedumangad Taluk. In the Neyyattinkara Assembly constituency there is only one Arts and Science College, i.e. the Government Arts & Science College, Kulathur which cannot cater to the need of any particular backward community. the Nedumangad Taluk. In the Neyyattinkara Assembly constituency there is only one Arts and Science College, i.e. the Government Arts & Science College, Kulathur which cannot cater to the need of any particular backward community. Therefore Exhibit-P5 is unreasonable.” The facts pleaded in the said paragraph are not seen controverted by the Government. The report relied on by the Government to take the impugned decision is also not placed on record. Ext.P5 order does not indicate that the petitioner was heard by the Government to ascertain the place where they propose to start the college. It is thus evident that Ext.P5 decision has been taken without comprehending the exact place where the petitioner proposes to establish the college and without conducting a study as to the need of that locality. In the circumstances, I am of the view that the matter needs to be considered by the Government afresh. 6. In the result, the writ petition is allowed. Ext.P5 order is quashed and the Government is directed to consider Ext.P3 request afresh with notice to the petitioner and take appropriate decision thereon, within six weeks from the date of receipt of a copy of this judgment." 17. In pursuance to Ext.P6 judgment, the Government passed Ext.P7 order dated 11.11.2016, however, again rejecting the request of the petitioner. In that order, it was held that one of the prerequisites for starting a college is the ownership of 5 acres of encumbrance-free land. The petitioner has produced only a lease deed, and the same is just for five years. It is also stated in that order that starting a new college under the aided sector will put a huge financial commitment to the State, and an amount of Rs.10 crore is the estimated financial commitment during the first year itself. 18. The learned Senior Counsel for the petitioner, by relying on Ext.P9 study report submitted by the Deputy Director of Collegiate Education, submitted that Ext.P7 order does not reflect the opinion given in Ext.P9 report correctly. To reject the application of the petitioner, a distorted version of Ext.P9 report is stated in Ext.P7 Government Order. Challenging Ext.P7, the petitioner again filed W.P.(C)No.41372 of 2016. By Ext.P13 judgment dated 17.10.2017, this Court disposed of that writ petition setting aside Ext.P7 and directing the Government to consider Ext.P3 request based on Ext.P9 study report. To reject the application of the petitioner, a distorted version of Ext.P9 report is stated in Ext.P7 Government Order. Challenging Ext.P7, the petitioner again filed W.P.(C)No.41372 of 2016. By Ext.P13 judgment dated 17.10.2017, this Court disposed of that writ petition setting aside Ext.P7 and directing the Government to consider Ext.P3 request based on Ext.P9 study report. Paragraphs 10, 11 and 12 and the last paragraph of that judgment read thus; "10. It is distressing and disconcerting to note that the Government despite a detailed judgment at Ext.P9 has considered the matter with abject levity and without any reference to the points specifically referred to in Ext.P6. The order has also been passed after a contempt was initiated before this Court, hurriedly, in order to escape from the clutches of the contempt jurisdiction of this Court. The compliance of judgments passed by this Court is not to be confined to the time frame stipulated by this Court to arrive at a decision. When this Court passes a judgment directing consideration of an issue and also makes observations on the relevant factors to be looked into that shall be looked into scrupulously. An order passed ignoring the relevant aspects as noticed by this Court would also fall within the ambit of the definition of a deliberate contempt. A reading of Ext.P6 judgment would clearly indicate that the consideration was directed to be made on the specific education need of the area and if at all the need was absent then the rejection should have been based on that. 11. If the need existed as is now seen from Ext.P9, then the further requirements regarding ownership of land and so on and so forth could have been directed by the Government. Prima facie it has to be observed that the affiliating University does not have a condition for ownership of 5 Acres of encumbrance free land and in such circumstance it was highly improper of the Government to have declined the representation for that reason. The financial implication has also not been properly quoted in the order as found from the study; and is a a blatant misrepresentation of the estimated figures which estimate has been made by a competent Officer of the Government. 12. In such circumstances, this Court would set aside Ext.P7 finding the consideration to be not in accordance with Ext.P6. The financial implication has also not been properly quoted in the order as found from the study; and is a a blatant misrepresentation of the estimated figures which estimate has been made by a competent Officer of the Government. 12. In such circumstances, this Court would set aside Ext.P7 finding the consideration to be not in accordance with Ext.P6. A further consideration shall be made by the Government within three months based on Ext.P9 and if required a further study on the educational need with reference to the facts as noticed in Exhibit P9. Educational need shall be the consideration at the first instance and then the further issues of essential requirements and the financial viability too; the last of which is in the exclusive premise of the Government. The writ petition is disposed of with a further direction to comply with the directions issued within a period of three months from the date of receipt of a certified copy of this judgment." 19. Subsequent to Ext.P13 judgment, a need analysis was conducted by the Deputy Director of Collegiate Education again and submitted Ext.P14 report dated 08.02.2018. After Ext.P14 report, the Government passed Ext.P16 order bearing No.G.O.(Rt)No.696/2017/H.Edn dated 06.04.2018, once again rejecting the application of the petitioner. The said report was challenged in W.P.(C)No.41845 of 2018. 20. According to the learned Senior Counsel for the petitioner, the Government has taken different stand on different occasions in order to avoid granting permission to the petitioner to start an Arts and Science College, especially for the benefit of a particular backwards community. After initially holding that the Government is intending to grant permission to start new colleges only in the co-operative sector and not in the aided sector, a college for SC/ST was granted by the Government. From the judgments passed by this Court on different occasions in the writ petitions filed by the petitioner, it is evident that the intention behind those judgments is to grant permission to the petitioner to start an aided college of Arts and Science. 21. The learned Senior Government Pleader at this juncture submitted that if this Court had such an intention, the writ petitions would have been allowed, directing the Government to grant permission as requested in Ext.P3 application, after completing the procedural formality. 21. The learned Senior Government Pleader at this juncture submitted that if this Court had such an intention, the writ petitions would have been allowed, directing the Government to grant permission as requested in Ext.P3 application, after completing the procedural formality. When the Government is directed to take a proper decision, that means the decision has to be taken after considering all the facts and circumstances, since it is a policy decision of the Government. 22. From the materials on record, we notice that after Ext.P13 judgment, the petitioner has approached this Court by filing Contempt Case(C) No.472 of 2018. By Ext.P18 Reference Order, the learned Single Judge referred that contempt case to the Division Bench for consideration. However, by the judgment dated 03.12.2019, the Division Bench closed that contempt petition as infructuous. 23. In Anjuman-E-Islam v. State of Karnataka and others [ (2001) 9 SCC 465 ] , the request of the appellant was to grant affiliation to the College of Education in Teachers Training (B.Ed) to be established by the appellant therein. When Government of Karnataka rejected the request, the appellant filed a Writ Petition in the High Court for the issue of writ of mandamus directing the respondents to grant affiliation to the College. Though the Single Judge of the Karnataka High Court directed the Government to reconsider the request of the appellant, it was again rejected on the ground that the policy of the Government does not permit the grant of affiliation to start any new B.Ed college. The appellant again approached the High Court with the second writ petition where in by observing that there had been failure on the part of the Government to discharge its statutory duties and the appellant was discriminated against when permission was said to have been granted to several other institutions, the High Court of Karnataka directed the Government to consider the matter afresh. However, the request was again rejected by the Government. This time, both the learned Single Judge as well as the Division Bench dismissed the Writ Petition and the appeal filed by the appellant following the earlier Division Bench judgment of the same Court. Considering the peculiar facts and circumstances of the case, the Apex Court allowed the appeal filed by the appellant, and directed the Government of Karnataka to consider and accord affiliation as claimed by the appellant at least from the next academic year. Considering the peculiar facts and circumstances of the case, the Apex Court allowed the appeal filed by the appellant, and directed the Government of Karnataka to consider and accord affiliation as claimed by the appellant at least from the next academic year. 24. In the instant case we are on the point of Contempt if any committed by the respondent, while passing the impugned Ext.P16 order. The facts and circumstances of the instant case are different from that of Anjuman-E-Islam [ (2001) 9 SCC 465 ] Therefore, the said decision has no application to the facts of the case in our hand. 25. In Prithawi Nath Ram v. State of Jharkhand [ (2004) 7 SCC 261 ] the appellant filed an application under Sections 11 and 15 of the Contempt of Courts Act, 1971 (in short the 'Act') read with Art.215 of the Constitution of India, 1950 (in short the 'Constitution') alleging non compliance of the directions given by a learned Single Judge of the Patna High Court in CWJC No.1120 of 1998 by the order dated 30.03.1999. A learned Single Judge of the said High Court, while dealing with the application for initiation of contempt proceedings, has passed the judgment holding that it would not be proper to take any action for contempt. Though learned Single Judge noticed that the scope of consideration while dealing with an application for initiation of contempt proceedings was confined to the question whether there was compliance with the order or not, yet proceeded to examine the correctness of the order and called upon the parties to satisfy him that the direction of the kind contained in the order dated 30.03.1999 could be issued. After an in-depth analysis, the learned Single Judge held that the directions could not have been given and therefore there was no scope for taking any action for contempt. When that judgment was challenged before the Apex Court, it was held thus; If any party concerned is aggrieved by the order which in its opinion is wrong or against rules or its implementation is neither practicable nor feasible, it should always either approach to the Court that passed the order or invoke jurisdiction of the Appellate Court. Rightness or wrongness of the order cannot be urged in contempt proceedings. Right or wrong the order has to be obeyed. Rightness or wrongness of the order cannot be urged in contempt proceedings. Right or wrong the order has to be obeyed. Flouting an order of the Court would render the party liable for contempt. While dealing with an application for contempt the Court cannot traverse beyond the order, non compliance of which is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It cannot test correctness or otherwise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible. (Underline Supplied) 26. In Rajappan Nair v. Stephen Joseph [2005 (2) KLT 345] , the challenge before the Division Bench of this Court was against the further direction issued by the learned Single Judge holding that there is no clarity in the judgment in the writ petition. The Division Bench, by relying on Prithawi Nath Ram [ (2004) 7 SCC 261 ] held that the learned Single Judge in contempt case can only examine as to whether the direction already given by the learned Single Judge has been complied with or not. In a contempt case no positive direction can be given, lest it would be beyond the jurisdiction of contempt Court exercising powers under Sections 11 and 12 of the Contempt of Court Act, 1971 read with Rule 6 of the Contempt of Court (High Court of Kerala) Rules. 27. As noticed herein above, in none of the judgments passed by this Court, the respondent was directed to consider the application of the petitioner in a particular manner. It is true that in the judgment dated 04.03.2024 in W.A.No.2536 of 2019, this Court directed the Government to pass fresh orders keeping in mind the object of the appellant is to establish the college in Neyyattinkara Taluk, where the Nadar community is one of the dominant communities and the fact that, permission has been granted to SC/ST community as per G.O.(Ms)No.572/2021/HEDN. However, in paragraphs 4 to 6 of Annexure A5 order dated 18.11.2024, the Division Bench of this Court made the following observation: "4. However, in paragraphs 4 to 6 of Annexure A5 order dated 18.11.2024, the Division Bench of this Court made the following observation: "4. The learned Senior Government Pleader pointed out that the instance of Scheduled Caste/Scheduled Tribe Educational Trust cannot be ipso facto made applicable to the Appellant/Petitioner who is an educational society of the Other Backward Class and therefore, this would require a policy decision. 5. Considering that a policy decision in that regard is required and that the judgment delivered by the Division Bench did not stipulate a time period, we are of the opinion that time needs to be granted to the State to take a decision as directed by the judgment dated 4 March 2024. However, time of one year sought, according to us, is not reasonable. 6. Therefore, we allow the application for extension filed by the State and grant four months’ time from today to decide the policy and consider the application of the Appellant/Petitioner. We make it clear that we have not directed as to how a decision of the Appellant/Petitioner’s application is to be taken." 28. From the appreciation of the materials on record and the arguments addressed at the Bar, we notice that in the judgment dated 04.03.2024 in W.A.No.2536 of 2019, this Court did not direct the Government to pass the order in the application filed by the petitioner in a particular manner. If the intention behind the order was to allow the application of the petitioner without considering the attending circumstances, then this Court would have made it clear in black and white that, while taking a decision, the application of the petitioner has to be allowed. In the absence of such a clear direction, while exercising Contempt jurisdiction, as held in Prithawi Nath Ram [ (2004) 7 SCC 261 ] , it is not possible for this Court to hold that the indication in the direction issued by this Court in W.A. No.2536 of 2019 was to allow the application of the petitioner. In such circumstances, it is only to be held that there is no prima facie material to proceed against the respondent under the provisions of the Contempt of Courts Act, 1971. In the result, this Contempt Case (Civil) stands dismissed. In such circumstances, it is only to be held that there is no prima facie material to proceed against the respondent under the provisions of the Contempt of Courts Act, 1971. In the result, this Contempt Case (Civil) stands dismissed. However, we make it clear that we have not expressed anything about the right of the petitioner to initiate appropriate proceedings against Ext.P16 order, if he is otherwise entitled.