Nimisha K. v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE MONDAY, THE 23RD DAY OF NOVEMBER 2015/2ND AGRAHAYANA, 1937 ## WP(C).No. 23497 of 2015 (S) ---------------------------- PETITIONER : ---------------- NIMISHA K., AGED 28 YEARS D/O.NARAYANAN, RESIDING AT 18/1172, E.S.I.ROAD PALLURUTHY, KOCHI 682 006. BY ADV. SRI.P.K.SEBASTIAN RESPONDENTS : ------------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT GOVERNMENT OF KERALA, SECRETARIAT THIRUVANANTHAPURAM 695 001. 2. GENERAL ADMINISTRATION DEPARTMENT (GAD) REPRESENTED BY ITS SECRETARY, GOVERNMENT OF KERALA SECRETARIAT, THIRUVANANTHAPURAM 695 001. 3. GENERAL EDUCATION DEPARTMENT REPRESENTED BY ITS SECRETARY, GOVERNMENT OF KERALA SECRETARIAT, THIRUVANANTHAPURAM 695 001. 4. HIGHER EDUCATION DEPARTMENT REPRESENTED BY ITS PRINCIPAL SECRETARY GOVERNMENT OF KERALA, SECRETARIAT THIRUVANANTHAPURAM 695 001. 5. LOCAL SELF GOVERNMENT DEPARTMENT REPRESENTED BY ITS SECRETARY, GOVERNMENT OF KERALA SECRETARIAT, THIRUVANANTHAPURAM 695 001. 6. UNIVERSITY OF KERALA REPRESENTED BY ITS REGISTRAR, PALAYAM PO THIRUVANANTHAPURAM 695 004. 7. MAHATMA GANDHI UNIVERSITY REPRESENTED BY ITS REGISTRAR, PRIYADARSINI HILLS PO KOTTAYAM 686 560. 8. UNIVERSITY OF CALICUT REPRESENTED BY ITS REGISTRAR, CALICUT UNIVERSITY PO MALAPPURAM DISTRICT, PIN 673 635. 9. KERALA AGRICULTURAL UNIVERSITY REPRESENTED BY ITS REGISTRAR, MAIN CAMPUS VELLANIKKARA, THIRSSUR 680 656. WP(C).No. 23497 of 2015 (S) -------------------------------- 10. COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY REPRESENTED BY ITS REGISTRAR, KALAMASSERY PO, KOCHI ERNAKULAM 682 022. 11. KERALA UNIVERSITY OF HEALTH SCIENCES, REPRESENTED BY ITS REGISTRAR, MEDICAL COLLEGE PO THRISSUR 680 596. 12. KANNUR UNIVERSITY REPRESENTED BY ITS REGISTRAR KANNUR UNIVERSITY CAMPUS PO, MANGATTUPARAMBA KANNUR 670 567. 13. KERALA UNIVERSITY OF FISHERIES & OCEAN STUDIES REPRESENTED BY ITS REGISTRAR, PANANGAD PO ERNAKULAM DISTRICT, PIN 682 506. 14. THUNCHATHEZHUTHACHAN MALAYALA UNIVERSITY REPRESENTED BY ITS REGISTRAR MOHAN VILAS POOKKAYIL BAZAR, TIRUR-7 MALAPPURAM DISTRICT. 15. SREE SANKARACHARYA UNIVERSITY OF SANSKRIT REPRESENTED BY ITS REGISTRAR, KALADY ERNAKULAM DISTRICT, PIN 683 574. 16. KERALA TECHNOLOGICAL UNIVERSITY REPRESENTED BY ITS REGISTRAR, CET CAMPUS THIRUVANANTHAPURAM, KERALA 695 016. 17. UNIVERSITY GRANTS COMMISSION (UGC) REPRESENTED BY ITS SECRETARY BAHADUR SHAH ZAFAR MARG, NEW DELHI 110 002. 18. UNION OF INDIA REPRESENTED BY ITS SECRETARY MINISTRY OF HOME AFFAIRS, GRIH MANTRALAYA, NORTH BLOCK NEW DELHI 110 001. R1 TO R5 BY SR. GOVERNMENT PLEADER, SRI.P.I. DAVIS R6 BY SRI.BECHU KURIAN THOMAS (SR.), SC, UNIVERSITY OF KERALA SRI. PAUL JACOB R7 BY SRI.VARUGHESE M.EASO, SC, M.G.UNIVERSITY R8 BY ADV. SRI.SANTHOSH MATHEW,SC,CALICUT UNIVERSITY. R9 BY ADV. SRI.BABU JOSEPH KURUVATHAZHA, SC R10 BY ADV. SRI.MILLU DANDAPANI, SC, COCHIN UNIVERSITY R11 BY SRI.P.SREEKUMAR,SC,KERALA UTY.HEALTH SCIENCES R12 BY SRI.V.A.MUHAMMED, SC, KANNUR UNIVERSITY R13 BY ADV. SRI.MILLU DANDAPANI, SC, KUFOS R14 BY SRI.GEORGE POONTHOTTAM, SC, MALAYALAM UNIVERSITY R15 BY ADV. SRI.ARUN B.VARGHESE,SC, SREE SANKARACHARYA UTY. R17 BY SRI.S.KRISHNAMOORTHY, CGC R18 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-11-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 23497 of 2015 (S) -------------------------------- ## APPENDIX ## PETITIONER'S EXHIBITS : ------------------------------ - EXT.P1- TRUE COPY OF PAPER REPORT APPEARED IN THE NEW INDIAN EXPRESS DAILY NEWSPAPER ON 21ST JULY 2015 COMPELLING HTE HIGH COURT STAFF TO COME TO HIGH COURT ON NATIONAL HOLIDAYS. - EXT.P2- TRUE COPY OF OFFICIAL MEMORANDUM ISSUED BY THE HONOURABLE HIGH COURT OF KERALA MENTIONED IN THE PAPER REPORT DATED 14.7.15. - EXT.P3- TRUE COPY OF JUDGMENT OF THIS HONOURABLE COURT IN B.A.NO.5255/2007 DATED 22.1.2008 (G.SURYA MUTHU V. STATE OF KERALA). - EXT.P4- TRUE COPY OF AFFIAVIT FILED BY THE CHIEF SECRETARY (P.J.THOMAS) IN B.A. NO.5255 OF 2007 (SURYA MUTHU V. STATE OF KERALA & ANOTHER)(3PAGES). - EXT.P5- TRUE COPY OF LETTER ISSUED BY THE GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS DATED 14.7.2014 ISSUED TO CHIEF SECRETARIES. - EXT.P6- TRUE COPY OF PROGRAMME NOTICE OF REPUBLIC DAY CELEBRATIONS, 2015 CONDUCTED BY THE HONOURABLE HIGH COURT OF KERALA. - EXT.P7- TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT, CHIEF SECRETARY, STATE OF KERALA, DATED 21.7.15. RESPONDENTS' EXHIBITS : ------------------------------- NIL /TRUE COPY/ PA TO JUDGE ## **ASHOK BHUSHAN, C.J. & A.M. SHAFFIQUE, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 23497 OF 2015 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of November, 2015 ## **JUDGMENT** ## **Ashok Bhushan, C.J.** This Public Interest Litigation has been filed by the petitioner, a social worker raising concern regarding non-participation of large number of government employees in Independence day and Republic day celebrations. The petitioner submits that the State Government having not issued any Circular making participation in above national events compulsory for government servants, they are treating these national holidays as any other holiday. The petitioner in the writ petition prays for the following prayers: “i) direct the 1[st] respondent to issue a circular/order compelling the Government servants and staff of public sector units, colleges, Universities and Local Self Government Institutions under the control of the State Government to participate in the National Holiday ceremony in the respective offices and mark attendance in the attendance register on the days of National holidays - August 15 (Independence Day) and January 26 (Republic Day); ii) direct the 1[st] respondent to dispose of Exhibit P7 representation; WP(C) No. 23497 of 2015 ## -:2:- iii) direct the 1[st] respondent to file a detailed statement before this Hon'ble Court with regard to the steps taken by the Government in accordance with Exhibit P3 judgment of this Hon'ble Court and Exhibit P4 affidavit;” ## 2. This writ petition was heard by this Bench on 12.08.2015 on which day the following order was passed: “This writ petition is filed as a Public Interest Litigation praying for a direction to the 1[st] respondent to issue Circular/Order compelling the Government servants and staff of public sector units, Colleges, Universities and Local Self Government Institutions under the control of State Government to participate in the National Holiday ceremony in the respective offices and mark attendance in the attendance register on the days of National Holidays. 2. Learned Senior Government Pleader has placed before us a Circular dated 20.07.2015 issued by the 1[st] respondent regarding the National Day Celebrations and Independence Day Celebrations which are to be adhered to the guidelines. Though the Circular directs holding of Independence Day Celebrations at different levels including public offices, there is no compulsion to any public servant to attend the ceremony. He submits that though in the Circular it is provided that the Heads of Department/Offices/Institutions should ensure participation of the maximum number of staff and students in this endeavour with due regard to the provisions of the Flag Code 2002. But there is no direction to attend the ceremony compulsorily. It is submitted by learned counsel for the petitioner that Government WP(C) No. 23497 of 2015 ## -:3:- should have considered issuance of appropriate directions to assure participation of public servants. 3. It is submitted that Government of India had issued a Circular wherein it has been advised and cautioned that those who did not attend the function would be viewed seriously. But the said Circular is with regard to the flag hoisting ceremony at the Red Fort which is an important historic function. Learned Government Pleader submitted that Government had already issued a Circular regarding the same and all steps shall be taken to ensure strict compliance of the Circular by all concerned. However, the Government has to ensure whether the Government servant is attending the function at any place including their office compulsorily or not. Let appropriate affidavit be filed by the Government.” 3. The writ petition was heard again on 27.10.2015 on which date the learned Senior Government Pleader, Sri.P.I. Davis submitted that the State Government has issued various Circulars from time to time and has issued various guidelines in connection with the national day celebrations. Reference has been made to the Government Order dated 08.01.2015 and another Government Order dated 20.07.2015. The State Government has come up with another Government Order dated 05.11.2015 which shall be referred to hereinafter. WP(C) No. 23497 of 2015 -:4:- 4. The petitioner's case in the writ petition is that Government servants, Staff of public sector undertakings, Universities and Local Self Government Institutions under the control of State Government have to participate in the National day celebrations in their respective offices and they should mark their attendance on the above national holidays i.e. Republic day (26[th] January) and Independence Day (15[th] August). Petitioner's case is that on account of there being no order of the State Government making it compulsory for participation by the Government servant on the national day celebrations, no government servant or other employees feel bound to attend these national celebrations. Petitioner submits that it is the obligation of the State Government to make participation in the National Day celebrations compulsorily and issue necessary instructions to that effect. Petitioner refers to an incident in which a 'Watcher' in the P.W.D. office hoisted the national flag in the absence of any other member of the staff, who having not hoisted the flag properly, criminal proceedings had been initiated WP(C) No. 23497 of 2015 -:5:- against such Class IV employee. The petitioner relies on the order of this Court dated 22.01.2008 passed in B.A. No.5255 of 2007[G.Surya Muthu v. State of Kerala] in the above context. 5. We have considered the submissions of learned counsel for the parties and perused the record. 6. The Independence Day is one of the most significant day in the Indian history. After a freedom struggle of almost 100 years, India could attain freedom and to commemorate the above day it is declared as national holiday. Similarly, 26[th] January is another significant day for the country on which day the people of India have resolved to constitute India as a sovereign democratic republic on which day the constituent assembly adopted, enacted and gave to the people of India, the Constitution of India. 7. It is useful to refer to the observations made by this Court in its order dated 02.01.2008 in B.A. No.5255 of 2007 (supra), wherein this Court observed that the National holidays are days not merely to sit at home idle, rather these days be WP(C) No. 23497 of 2015 -:6:- treated as opportunities to kindle the flame of nationalism, patriotism and constitutional idealism. Following was observed by this Court in paragraph 3 : “ **3.** National days are occasions not merely to sit at home and idle. They must be reckoned as opportunities to kindle the flame of nationalism, patriotism and constitutional idealism and as occasions to introspect and rededicate to the ideals that India stands for. They must be occasions when Indians think of their great good fortune of being Indians. They must look around in the neighbourhood and realise their great advantage of remaining citizens of a democratic country. These are occasions to be proud that we are Indians. Introspection must help us to realise and identify how and where we have erred and to contemplate; how the polity can be enthused to do better in the future years. Good must and shall certainly come out of such celebrations. The State should not let go such opportunities without realising their potentiality.” 8. In the above case this Court noticed that there is no express expectation for the Government servant as to how the national days must be celebrated in the office. The Court also noticed that the Circular dated 16.01.2008 was issued by the Government which stated that the Head of the Department “should ensure participation of the maximum number of staff in WP(C) No. 23497 of 2015 ## -:7:- ## the endeavour.” The court in paragraph 5 further observed as follows: “ **5.** ........... National days, I do hope, shall hereafter be occasions for serious observance and celebration in the government offices and establishments in the State. Participation must be insisted. It must be a different type of holiday and not merely an idle holiday to sit at home. Even the order that is issued does not insist on participation specifically, but only says that the heads of departments “should ensure participation of the maximum number of staff in the endeavour” with due regard to the provisions of the Flag Code, 2002. I assume that the message will properly reach the target and national days shall hereafter be an occasion for sublime activity and celebration in the offices and establishments of the State. Ext.R1(b) order, it is hoped, shall be observed properly and the indiscretion which has taken place in this case will not hereafter occur in any office of the Government in the State.” 9. It is submitted before us that even after the order of this Court there are no clear directions by the State for the Government servant or other public servant including the employees of Local authorities and other bodies under the control of the State to compulsorily participate in the national day celebrations. In the above context it is relevant to refer to Article WP(C) No. 23497 of 2015 -:8:- 51A of the Constitution of India by which provision fundamental duties have been incorporated in the Constitution by the Constitution(42[nd] Amendment) Act, 1976. Article 51A(a) (b) reads as under: “ **51A. Fundamental duties.-** It shall be the duty of every citizen of India- (a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; (b) to cherish and follow the noble ideals which inspired our national struggle for freedom; ” 10. One of the fundamental duties as noted above is to “cherish and follow the noble ideals which inspired our national struggle for freedom”. What else can be most important days than the above national days to cherish the noble ideals which inspired our national struggle for freedom. The above fundamental duty is cast upon every citizen of India. We are thus of the view that participation in the national day celebrations is expected not only from the Government servant and other public servant, local authorities, institutions, but it should be a spirit of WP(C) No. 23497 of 2015 -:9:- every citizen of India to participate and cherish the memory of above important days in the history of India. 11. The Circular dated 20.07.2015, which has been placed by learned Senior Government Pleader for perusal of the Court relates to the national day celebrations i.e. Independence day celebration, 2015 where the Government has directed that the Head of the Departments/District Collectors of the State should ensure maximum participation of the government staff during the celebration of Independence day/Republic day, 2015. The celebrations were to be held at State Capital, District level, Sub-divisional Level/Block Level, Panchayat Head Quarters, Public Offices/Schools/Colleges. The last paragraph of the order reads as follows: “Ceremonial Hoisting of the National Flag after 8.30 AM (preferably by 9.30 am) by the Heads of Department/Offices/educational institutions accompanied by the singing of the National Anthem, speech by the Heads of the Department/Offices/Educational Institutions explaining the significance of 15[th] August and exhorting the audience to work for the unity and integrity of the country, singing of patriotic songs etc. The Heads of Department/Offices/Institutions should ensure WP(C) No. 23497 of 2015 ## -:10:- participation of the maximum number of staff and students in this endeavor with due regard to the provisions of the Flag Code 2002. The audience will stand in attention when the National Anthem is sung. All officers in uniform will salute when the National Salute is given. The above instructions will be followed scrupulously while celebrating Independence Day.” 12. The latest Circular issued by the State of Kerala was Circular dated 05.11.2015, which has also been placed before us by the learned Senior Government Pleader which has been issued regarding the national day celebrations in pursuance of the order passed by this Court on 12.08.2015 in the present writ petition. It is useful to extract the above Government Order dated 05.11.2015 which is to the following effect: ## “ **GOVERNMENT OF KERALA** ## **GENERAL ADMINISTRATION (POLITICAL) DEPARTMENT** No.54814/Pol-5/2015/GAD Dated Thiruvananthapuram 05.11.2015 ## **CIRCULAR** Sub :- National Day Celebrations-Interim judgment of Hon'ble High Court of Kerala in WP(C)No.23497/2015-Independence Day/Republic Day Celebrations-Further Guidelines-Reg. WP(C) No. 23497 of 2015 -:11:- Every year Government celebrates the National Days such as Independence Day and Republic Day in a colourful and most befitting manner. Kerala Government have issued circulars every year and instructions have been issued to all Heads of Departments/District Collectors/Sub-Divisional and Block Level Officers/Panchayat Head Quarters/All Public Offices/ Schools/Colleges of the State for ensuring the maximum participation of the staff during the Independence Day/Republic Day Celebrations. The Hon'ble High Court of Kerala in their interim Judgment dated 12.08.2015 in WP(C)No.23497/2015, directed Government to ensure whether the Government Servants are attending the Independence Day/ Republic Day functions at any place including their office compulsory or not and file appropriate affidavit before the Hon'ble High Court. In the Circumstances, as directed by the Hon'ble High Court, the following directions are issued. When days of National importance like Independence Day and Republic day are celebrated in the State of Kerala, all officers, members of staff of State Government offices/Public Sector Undertakings/Autonomous Bodies/Universities/Colleges/Local Self Government Institutions and teachers under the control of State Government must attend the National Day functions. The Heads of Departments/Offices/Institutions should ensure participation of all the staff under them. K.R. JYOTHILAL Secretary, GAD” WP(C) No. 23497 of 2015 -:12:- 13. The above Government Order thus clearly stipulate that all officers, members of staff of State Government offices/Public Sector Undertakings/Autonomous Bodies/ Universities/Colleges/Local Self Government Institutions and teachers under the control of State Government must attend the national day functions. The Head of the Departments/Institutions were to ensure that there is participation of all the staff under them. The above Circular thus now clearly oblige the above mentioned staff, employees and officers to attend the national day celebrations and the Head of the Department has been entrusted with the duties to ensure participation. Normally the Head of the Departments should not exempt any officer or staff from participating in the national day celebrations except for valid reasons with prior information. In the event the Head of the Departments/Officer of the employee issues instructions that all the officers and staff has to attend the national day celebrations, it becomes part of duty of the staff. Rule 3 of the Government Servants' Conduct Rules, 1960 requires every government WP(C) No. 23497 of 2015 -:13:- servant to maintain all times devotion to duty. When an instruction is issued by the Head of the Departments under Circulars of the State Government, that becomes part of duty of the particular officer or staff and the Head of the Departments does not lack competence to take appropriate action in the event the staff or officer does not show devotion to duty by breaching the instructions issued by the Head of the Department. In view of the foregoing discussions, the ends of justice be served in disposing the Writ Petition with the following directions: 1. Government servant/staff of public sector institutions/staff of educational institutions and Local Self Government institutions under the control of the State Government shall adhere to the Circulars issued by the State Government including the Circular dated 05.11.2015 as extracted above and the Head of the Department/Officers of various institutions should ensure participation of the officers and staff in the above National day celebrations. WP(C) No. 23497 of 2015 -:14:- 2. The Head of the Departments/Officers shall not excuse attendance of officers and staff in the above National day celebrations except on valid reasons. 3. The State Government shall also ensure that Circulars and directives issued by it regarding participation in National day celebrations are implemented in its true spirit and appropriate measures for non-compliance be taken. **Ashok Bhushan, Chief Justice.** **A.M. Shaffique, Judge.** ttb