Monday 14 May 2012

One Year of Disaster! - I



A news item in ‘The Hindu’ on May 7 last read as “Wind power to Chennai’s rescue – Temporary suspension of load-shedding during ‘dog days’ has city smiling.” A senior TANGEDCO official has said, “The wind power generation capacity in the State is nearly 7,000 MW. On an average we get nearly 2,500 MW and sometimes it even touches 3,000 MW. The main wind season is between May and October, so we hope the generation will be good.” But what the official as well as the daily, willfully or otherwise, failed to report is the fact that these wind power mills were set up during the previous DMK rule and in the very first year of the rule, the DMK government set up additional 6,000 MW capacity wind power generation mills and generated 3,400 MW, thus to augment increased power demand during summer and to meet shortfall in power generation through hydel power projects during the hot season. That was the perspective with which the DMK government led by Kalaignar worked, because of which Chennaiites and people of other parts of the State heave a sigh of relief now!
When Kalaignar-led DMK government completed one year on 13 May 2007, besides accomplishing this wind power generation, also made several achievements like: Rs.2 per one kg. rice and pulses and cooking oil at subsidized prices; Rs.7,000 cr. co-operative farm loan waiver; three eggs per week along with nutritious meals; free colour television sets to all families; 77,117 acres of land given free of cost to 71,755 landless poor farmers; Marriage assistance fund for poor girls increased to Rs.15,000; Rs.6,000 financial assistance to pregnant women; Free gas stoves with LPG connection to eight lakh poor families at an expense of Rs.160 crore; doubling of the financial assistance for aged persons widows, handicapped and indigent artists; 25,000 new women’s SHGs to benefit five lakh women and 9,387 Youth SHGs to benefit 1,40,000 youths, ‘Varumun Kappom’ (Preventive Health) scheme revived benefiting 17,33,461 persons in one year; ‘Vaazhnthu Kattuvom’ scheme at an estimate of Rs.717 crore; 3,18,085 unemployed youth given monthly dole to the extent of Rs.35 crore in one year; social security scheme for Farmers and Agricultural workers by an Act. 15 welfare boards for different unorganized workers and 1,59,528 workers paid assistance of Rs.50,24,58,249 in one year; 16,239 poor and downtrodden living over poromboke lands for over 10 years given free land pattas; 13,000 flats for fishermen at a cost of Rs.295 crore, and 17,000 houses at a cost of Rs.250 crore in slum areas; Free electricity for handloom and powerloom weavers; All village Anna Marumalarchi Scheme at a cost of Rs.508 crore; waiver of government debt of Rs.793 crore of corporations and municipalities; Tamil compulsory subject from class 1-10; new medical colleges in Villupuram, Tiruvarur and Dharmapuri districts; Anna Technological Universities at Tiruchi, Coimbatore and Tirunelveli; Revocations of legislation banning recruitments; 24,642 school teachers and 1,857 lecturers for government colleges and polytechnics recruited, 13,000 Makkal Nala Paniyalargal re-appointed; 1,49,609 were newly appointed in government departments in one year; court buildings at a cost of Rs.300 crore; appointment of Third Police Commission; Ultra Modern State library in international standards at a cost of Rs.100 crore; new industrial parks in Chennai, Coimbatore, Madurai, Salem, Tiruchi and Tirunelveli, Eight MoUs signed in 12 months for industrial unit with an investment of Rs.6,985 crore; Ramanathapuram combined Drinking Water project at  a cost of Rs.616 crore; 110 combined Drinking Water projects at a cost of Rs.989 crore; Revocation of Anti-conversion legislation; separate welfare fund for journalists; Liberal tax concession for film world and entrance fee of Theatres drastically reduced; Rehabilitation scheme for scavengers at a cost of Rs.50 crore; Separate Directorate for Welfare of minorities…. The list goes long!
For once the present Chief Minister Jayalalitha was correct and truthful in what she spoke. At the first Press meet immediately after assuming office on May 16,2011, Jayalalitha was asked whether the ADMK’s victory in the elections was on negative vote, she vehemently denied the perception and emphasized that it was a positive vote for the programme of her party. Indeed, it was a positively negative vote for the ADMK and Jayalalitha, because after all, Jayalalitha’s one point programme was always negating whatever positively done by the DMK and Kalaignar for the state and its people. For instance, although Sethusamudram Shipping Canal Project was also the demand of the ADMK right from its inception, but as it was accomplished by the DMK through UPA government at the Centre, she raised the bogey of Ramar Bridge and stalled it. It is also just because Kalaignar obtained classical language status for Tamil, she abhors the very word classical language!
Even before the swearing-in ceremony of Jayalalitha and her Ministry on May 16 last year, the seat of power of Secretariat/ and Assembly was shifted from the New Secretariat complex on Anna Salai (constructed by the DMK government) back to Fort St George on the night of May 13, when Assembly results were coming in. Who ordered the shifting is a question begging answer till date. The first ADMK cabinet meeting on May 16 decided to put on hold Samacheer Kalvi introduced by the DMK government after thorough study and upheld by the High Court also.
These two being the first acts of the ADMK regime regarding the positive measure of the DMK government proved to be the proverbial ‘ முதல் கோணல் முற்றிலும் கோணல் (First distortion is total distortion). While the DMK government reinstated 13,000 MNPs, Jayalalitha again terminated their services and sacked them. While the DMK government set up Asia’s biggest library with all modern facility, Anna Centenary Library, Jayalalitha ordered its closure. The cases against shifting of the New Secretariat and Anna Library are still pending in courts.
Jayalalitha also scrapped the Housing project for constructing concrete houses hut dwellers, Medical Insurance scheme for life saving treatments, II phase extension of the Metro Rail project in Chennai in preference for an illusory Mono Rail, All-Village Anna Marumalarchi Scheme, Varumum Kappom Scheme, Free Colour Television scheme under which the balance of about 10 lakh sets were ready for distribution, Free gas stove scheme, social security scheme by legislation, 30 welfare boards for unorganized workers, Anna Universities of Technology in Madurai, Tiruchi and Tirunelveli and so on.
The ungrateful film world, by and large, campaigned against the DMK during the Assembly elections. But Jayalalitha scrapped the waiver of Entertainment Tax for films with title in Tamils and other liberal concessions and hiked the Entry fee for theatres, given by the DMK government both hitting the industry badly. Recently she refused to intervene and settle the stand-off between the producers and workers represented by FEFSI on account of which film shootings came to a standstill for over four months resulting in the loss of hundreds of crores. Now both the Producers Association and Film Workers Federation are split. This is what the Tamil film industry reaped in return for their campaign in favour of the ADMK. Jayalalitha’s moves to return prime government land adjacent to Anna Flyover in Chennai, taken over from a private party by the DMK government set up classical language park, back to the private party was overruled by the High and Supreme Courts. So also the cancellation of the land allotment to Muthamizh Peravai by the DMK government was stalled by the Madras High Court.
By being repeatedly pulled up by the courts, Jayalalitha regime brought disrepute to the traditional glory of Tamil Nadu, as a scrupulous and law-abiding state.
The Supreme Court lashed out at the ADMK regime in Tamil Nadu on Nov.29 for the government’s decision to sack about 13,000 MNPs, observing that there should be ‘some rule of law in the State.’ It said the decision reflected badly on the rule of law in the State. A Bench of Justice D.K.Jain and Justice Anil Dave, hearing a special leave petition against the interim order of the Madras High Court directing re-instatement of the MNPs, asked the State Additional Advocate General Guru Krishna Kumar, “What is happening in your State?” SC said the workers remained in job for full five years after their appointment by the previous regime, but the ADMK government removed them soon after assuming office.
“How can you justify such an action when it involved appointment and removal of such large number of contract workers” the top court asked. Justice Jain told the ASG, “Every five years you (State) appoint them. Thereafter, you remove them, again appoint them. Is there not a rule of law, there must be some rule of law in the State.
These candid observations of the Apex court imply that whether it is ADMK or the DMK that rule the State, the State government remains the same and the decisions taken during the previous rule shall be binding on the succeeding regime and shall not be changed unless patently unlawful, in which case it would have been challenged and struck down by the courts then and there. But Jayalalitha whimsically reverses everything constructively done during the previous DMK rule, resulting in not only drain the public money but also causing annoyance and distress to the people, who elected her to power.
So, the Hon’ble Judges of the Supreme Court need have no doubt. Undoubtedly, there is no rule of law in Tamil Nadu, under Jayalalitha’s dispensation.
For the State, law is not just books of rules and codes, but the letter and spirit of the law is paramount guideline. There is a saying in Tamil, ‘ahid tU« Ënd, kânahir tU« K‹nd’ which means, ‘The elephant will arrive later, but the ringing sound of the bell tied around its neck will resonate in advance.’ So also even before Jayalalitha assumed office, the administration went astray. When the meticulously planned and designed New Secretariat complex was inaugurated in March 2010, even while everyone was hailing of as an architectural marvel, Jayalalitha ridiculed the buildings ‘looking like circus tents’ and her cohorts were declaring that she would assume power in Fort St. George. But this was neither made a part of their election manifesto nor a point of her campaign, lest her alliance parties and the people would not have agreed.
But even as the poll results were trickling in on May 13, 2011 and the ADMK poised to secure majority, the New Secretariat/ Assembly, functioning for more than a year, was shifted overnight to Fort St. George, vacating the Classical Tamil Library that was functioning there. Jayalalitha and her ministers were sworn-in only on May 16 and the Cabinet meeting was also held at Fort St. George. Till date, the government has not clarified as to who and with what authority ordered the shifting of the Secretariat, the seat of power.
It was Jayalalitha, who during her previous tenure announced on 23 April 2003 in the Assembly, that her government had decided to shift the Secretariat from Fort St. George, ‘as it was not safe and unfit for human habitation.’ But the alternative site she proposed was turned down by the High Court. Thereafter she chose another site in Adyar and performed Bhoomi Pooja shrouded in secret, but could not and did not proceed further due to stiff resistance by the residents of the area.
In the spirit of continuity of the government in spite of change of rule, as pointed out by the Supreme Court now, Kalaignar honoured Jayalalitha’s announcement of shifting the Secretariat from Fort St. George and constructed in the Government Estate on Anna Salai, which could not face any opposition.
Now Jayalalitha has gone against her own announcement and has returned to Fort St. George, which she said was ‘unfit for human habitation’. She and her ministers can call themselves anyway as they please, but certainly government officials and employees and people who visit are human beings.
In order to justify the colossal wastage of people’s money to the tune of over Rs.1,000 crore, Jayalalitha alleged irregularities in the construction of the New Secretariat and ‘deficiency in standards of construction’ and appointed a Commission of Inquiry. Then she announced that the New Secretariat complex would be converted in a multispeciality hospital and sent a team of doctors to study such hospitals in other parts of the country.
When it is alleged that there is ‘deficiency in standards of construction’ and it has been set a term of reference for the Inquiry Commission, people would ask ‘how a hospital be located in such a deficient building, risking the lives of patients and medical staff !? Another question is, if there are only irregularities in construction and deficiency in standards of construction,’ why not use the complex for the purpose it was built after rectifying the deficiencies and complete construction of other blocs so as to accommodate all departments.
If only there is Rule of law in the State, will all these outrageous actions of an individual springing from her personal ego and whims, be allowed to take the State and its people for a ride?
The very first decision of the Cabinet meeting of the ADMK regime was to put on hold Samacheer Kalvi scheme introduced by the previous DMK rule intended to abolish four streams of school education and replace with one uniform and equitable syllabus and pattern of school education, after months of thorough study, discussions and consultations with educationists and academics by an expert committee headed by a retired Vice-Chancellor of a university. It was not introduced in a hasty and haphazardous manner, but introduced in the first and sixth standard in the academic year 2010-11 and for the rest of the classes from the current academic year. Text books for the new syllabus were also prepared, printed and kept ready for distribution. Private matriculation schools, which were aggrieved over loss of their commercial exploitation of education, moved upto the Supreme Court to stall Samacheer Kalvi but it was upheld by the courts.
Hence the question arised as to why Jayalalitha, immediately after assuming office should resort to this action, even without any review of the system. In asmuch as the move was beneficial only to the aggrieved private school sharks, it was believed that the move was in return for pre-election ‘consideration’. Naturally aggrieved parents of over 1.25 school-going children, and educationists protested and knocked the doors of judiciary. Throughout the State students agitated. Unmoved and adamant the ADMK regime brought an amendment Act to postpone implementation of the system. It was challenged in the Madras High Court. While delivering the verdict, Justices S. Rajeswaran and Tmt. K.P.K. Vasuki said, “The intention of Samacheer Kalvi is clear. A study team consisting of best experts studied in detail and recommended implementation of Samacheer Kalvi. The recommendations of the committee cannot be easily ignored. Besides, while already incurring huge expenditure, is it necessary to further expend more? The Advocate General should give proper counsels to the government.”
When the Tamil Nadu government went on further appeal to the Supreme Court against the judgement of the Madras High Court, Justices P.S.Chowhan and Swanthira Kumar in their order said, “Samacheer Kalvi brought for classes one and six last year should be continued to be implemented. If it is stopped in between there will be confusion. Samacheer Kalvi should also be implemented this year itself for classes 2 to 5 and 7 to 10. If there were any shortcomings in that syllabi, a committee of experts could be set up and that committee to file its report within two weeks to the Madras High Court. Considering importance of this case the High Court should hear it on day-to-day basis and deliver judgement within a week.”
According to this order ADMK government set up a committee of educationists. It was widely held that only those who were opposed Samacheer Kalvi found place in that committee. Without bothering all those things, the rulers prepared a report through that committee itself and filed that report in the High Court. The Chief Justice and another judge of the Madras High Court in their order explained in detail about the report of the committee and said, “We have no hesitation to hold that the State has exceeded in its powers in bringing the Amending Act to postpone an enactment which has already come into force. Text books required for other classes besides classes one and six had already been printed and considerable amount of work have been completed. They have also been uploaded on the website. At this stage bringing amendment to the Samacheer Kalvi Act, would affect the interests of students. Hence the amendment brought by Tamil Nadu government amending that Act is not valid. We hold them null and void. The text books for Samacheer Kalvi should be immediately distributed to the students. Hence in the interest of future of the students and the interest of the country we hope the State government would immediately take action to implement Samacheer Kalvi.”
Even after this, without respecting the High Court order and ignoring the request of the all parties in Tamil Nadu persuading the ADMK government not to go on further appeal to the Supreme Court and implement the order of the High Court, the ADMK government went to the Supreme Court.
The Supreme Court in its interim report refused to give interim stay to the Madras High Court order and told the government to distribute Samacheer Kalvi text books before August 2. Even after five days of this order, the Tamil Nadu government did not start the work of distributing text books to students.  Instead the counsel for ADMK government told the Supreme Court that there was no possibility for implementing Samacheer Kalvi during this year itself; it was very clear that the ADMK government was not at all bothered about the condition of the students of Tamil Nadu. Even after 2 months of reopening of schools the students were not aware of the text books that they were going to study during this year and the parents also were agonized. As the ADMK government, unbothered about all these and not respecting the orders of the courts and not heeding to the opinions of all party leaders, was adamantly sticking on its stand.
Ultimately, the Supreme Court on Aug. 9 directed the Tamil Nadu government to implement Samacheer Kalvi for classes 2 to 5 and 7 to 10 in ten days.
A three-Judge Bench of Justice J.M. Panchal, Justice Deepak Misra and Justice B.S. Chauhan dismissed a batch of appeals filed by the Tamil Nadu government and on behalf of association of matriculation schools in support of the State challenging the Madras High Court judgment.
The Bench upheld the High Court’s decision declaring unconstitutional the amendment made to the Tamil Nadu Uniform System of School Education Act to defer implementation of the USSE and gave 25 reasons why the impugned judgment should be sustained. The judgement said:
“Students can not be put to so much strain and stress unnecessarily. The entire exercise by the Government is therefore arbitrary, discriminatory and oppressive to students, teachers and parents.
The State Government should have acted bearing in mind that “destiny of a nation rests with its youths”.  Personality of a child is developed at the time of basic education during his formative years of life. Their  career  should  not  be  left  in  dolorific  conditions  with uncertainty  to  such  a  great  extent. The younger  generation  has  to compete in global market.  Education is not a consumer service nor the educational institution can be equated with shops, therefore, “there are statutory prohibitions for establishing and administering educational institution without prior permission or approval by the authority concerned…
Thus, the State Government could by no means be justified in amending the provisions of Section 3 of the Act 2010, particularly in such uncertain terms. Undertaking  given by  the learned  Advocate General to the High Court that the Act 2010 would be implemented in  the academic year 2012-13, cannot be a good reason to hold the Act 2011 valid.
Submissions advanced on behalf of the government that it is within the exclusive domain of the legislature to fix the date of commencement of an Act, and court has no competence to interfere in such a matter, is totally misconceived for the reason that the legislature in its wisdom had fixed the dates of commencement of the Act though in a phased manner. The Act commenced into force accordingly. The courts intervened in the matter in peculiar circumstances and passed certain orders in this regard also.  The legislature could not wash off the effect of those judgments at all….
As explained hereinabove, the Amendment Act 2011, to the extent it applies to enforcement of Act 2010, nullified the judgment of the High Court dated 30.4.2010 duly approved by this Court vide order dated 10.9.2010.  Thus, we concur with the conclusion reached by the High Court in this regard.
To summarise our conclusions:
(i) The Act 2010 was enacted to enforce the uniform education system in the State of Tamil Nadu in order to impart quality education to all children, without any discrimination on the ground of their economic, social or cultural background.
(ii) The  Act  itself  provided  for  its  commencement  giving  the academic years though, in phased programme i.e. for Standards I to VI from the academic year 2010-2011; and for other Standards from academic year 2011-2012, thus, enforcement was not dependent on any further notification.
(iii) The validity of the Act was challenged by various persons/ institutions and societies, parents of the students, but mainly by private schools organisations, opposing the common education system in the entire State. The writ petitions were dismissed upholding the validity of the Act. The said judgment of the High Court  was  duly  approved  by  a  speaking  order  of  this  Court  dated  10.9.2010. Certain directions had been given in the said judgment by the High Court which could have been complied with by issuing executive directions. Moreover, directions issued by the High Court could be complied with even by changing the Schedule as provided in the judgment dated 30.4.2010 itself.
(iv) Section 18 of the Act 2010 itself enabled the Government to issue any executive direction to remove any difficulty to enforce the statutory provisions of the Act 2010. The Act 2010 itself provided for an adequate residuary power with the government to remove any difficulty in enforcement of the Act 2010, by issuing an administrative order.
(v) Justification pleaded by the State that Amendment Act 2011 was brought to avoid contempt proceedings as the directions issued by the High Court could not be complied with, is totally a misconceived idea and not worth acceptance.
(vi) The new government took over on 16.5.2011 and immediately thereafter, the Government received representations from various private schools/organizations on 17th/18th May, 2011 to scrap the uniform education system. As most of  these representations were made by the societies/organisations who had earlier challenged the validity of the Act  2010 and met their waterloo in the hierarchy of the courts, such representations were, in fact, not even maintainable and, thus could not have been entertained by the Government.
(vii) Before the first Cabinet meeting of the new Government on  22.5.2011, i.e. on 21.5.2011, tenders were invited to publish the books under the old education system. It shows that there had been a pre- determined political decision to scrap the Act 2010. The Cabinet on  22.5.2011  had  taken  a  decision  to  do  away  with  the  Act  2010  and brought the Ordinance for that purpose.
(viii) There was no material before the Government on the basis of which, the decision not to implement the Act 2010 could be taken as admittedly  the  Expert  Committee  had  not  done  any  exercise  of reviewing  the syllabus and textbooks till then.
(ix) The validity of the said decision was challenged by parents and teachers and various other organisations before the High Court and interim orders were passed. It was at that stage that the Bill was introduced in the House on 7.6.2011 and the Amendment Act was passed and enforced with retrospective effect i.e. from 22.5.2011, the date of  the decision of the Cabinet in this regard.
(x) The interim orders passed by the High Court were challenged before this Court and the appeals were disposed of by this court vide judgment and order dated 14.6.2011, issuing large number of directions including constitution of the Expert Committee which would find out ways and means to enforce the common education system.
(xi) The  Secretary  of  School  Education  Department  had  filed affidavits before the High Court as well as before this Court pointing out that the Amendment Act 2011 was necessary in view of the fact that the Act 2010 was illegal and unconstitutional. However, the Secretary of School Education Department was inadvertently made a member of the Expert Committee by this Court. Though her inclusion in the Committee was totally unwarranted particularly in view of her stand taken before the High Court that the Act 2010 was unconstitutional and illegal.
(xii) The Secretary, to the Govt. of Tamil Nadu School Education Department,  who  had  been  entrusted  the  responsibility  to  plead  on behalf of the State, herself had approved the textbooks and fixed the prices for those books of Standards VIIIth,  IXth  and Xth  vide G.O. dated 9.5.2011.
(xiii) The members of the Expert Committee did not reject the text books and syllabus in toto, however, pointed out certain discrepancies therein and asked for rectification/improvements of the same.
(xiv) The High Court as well as this Court upheld the validity of the Act 2010. Thus, it was not permissible for the legislature to annul the effect of the said judgments by the Amendment Act 2011, particularly so far as the Ist and VIth Standards are concerned. The list of approved textbooks had been published and made known to all concerned. Thus, the Act 2010 stood completely implemented so far these Standards were concerned.
(xv) The Statement of Objects and Reasons of the Act 2011 clearly stipulated that legislature intended  to find out a better system of school education. Thus, the object has been to repeal the Act 2010.
(xvi) The legislature is competent to enact the revalidation Act under certain circumstances, where the statutory provisions are struck down by the  court,  fundamentally  altering  the  conditions  on  which  such  a decision is based, but the legislature cannot enact, as has been enacted herein, an invalidation Act, rendering a statute nugatory.
(xvii) The School Education Department of Tamil Nadu on  24.2.2011 called for private publishers to come out with the textbooks based on common education system, and submit for clearance by the  Department by 5.4.2011, as taken note of by the High Court in its order dated 10.6.2011. Thus, in such a fact-situation, it was  not permissible for the State to revert back to the old system at this advanced stage.
(xviii) Most  of the  other  directions  given  by  the  High  Court  on  30.4.2010, stood complied with. The DTERT had been appointed as Academic Authority as required under Section 29 of the Act 2009, vide G.O. dated 27.7.2010.
(xix) The material produced by the respondents before this Court reveal that norms had been made known and the NCF 2005 was also implemented by issuing Tamil Nadu Curriculum 2009.
(xx) The issue of repugnancy of the Act 2010 with the Act 2009 merely remains an academic issue as most of the discrepancies stood removed. Even if something remains to be done, it can be cured even now, however, such a minor issue could not be a good ground for putting  the  Act  2010  under  suspended  animation  for  an  indefinite period on uncertain terms.
(xxi) Such objectionable material, if any, could be deleted, rather than putting the operation of the  Act 2010 in abeyance for indefinite period.
(xxii) As early as in April 2011, textbooks for  Xth Standard were posted in the official website of School Education Department and many students downloaded the same and started study of the same as the students, parents and teachers had been under the impression that  for  Standards II to V and VII to X, common education system would definitely be implemented from academic year 2011-12. Such pious hope of so many stakeholders could not be betrayed. Rolling back the Act 2010 at this belated stage and withdrawal thereof even for Standard I and VI would be unjust, iniquitous and unfair to all concerned.
(xxiii) The Amendment Act 2011, in fact, has the effect of bringing back the effect of Section 14 of the Act 2010 which had been declared ultra vires by the High Court for the reason that the Board could not be given binding directions by the State Government.
(xxiv) Even if a very few schools could not exercise their choice of multiple text books, it could not be a ground of scrapping the Act 2010. Steps should have been taken to remove the discrepancy.
(xxv) Passing the Act 2011, amounts to nullify the effect of the High Court and this Court’s judgments and such an act simply tantamounts to subversive of law.
In view of the above, the appeals are devoid of any merit. Facts and circumstances of the case do not present special features warranting any interference by this Court.
 The appeals are accordingly dismissed. The appellants are directed to enforce the High Court judgment impugned herein within a period of 10 days from today.”
This ‘certificate’ issued by the Supreme Court to the ADMK regime is enough of a proof for the actions taken by Jayalalitha being “tantamount to subversive of law” and borne out of “political malice.”
Further, in a single day on Jan 23, 2011 Jaya regime suffered two setbacks, one in Supreme Court and the other in Madras High Court.
The Supreme Court ordered stay for the Government Order issued on Augst last, bringing Tamil Nadu Public Service Commission affairs under the purview of DVAC of police department, based on which raids were conducted in the office and recidences of its former chairman and members since October. Challenging the order, a PIL was filed by Dr. A.Lakshmanan and Dr. Panneerselvam contending that the TNPSC was an autonomous body. When it came for hearing before the bench of Justices Dhanvir Bandari and Deepak Misra, the bench ordered stay on the GO and for DVAC investigation.
The ADMK government lost yet another legal battle in the Madras High Court when its order abolishing the 12,618 MNPs posts was quashed by a single judge. Justice K Suguna, ordering the immediate reinstatement of all the workers, said the government order dated November 8, 2011 had been issued due to “political and extraneous considerations.” “Unfortunately, the government has not brought before this court any record to substantiate the reason mentioned in the order and no argument was also advanced by the advocate-general with regard to this,” she said.
    Noting that it was a serious humanitarian problem and that 12,618 employees could not be sent home abruptly overnight, Justice Suguna said: “Viewing from any angle, a perusal of the details reveals that the stand of the counsel for the petitioners that the order had been passed for political reasons has to be accepted.” The judge referred to the fact that the posts were first created by the DMK government in 1989, and were abolished by the subsequent ADMK government in 1991. The posts were created again in 1997when the DMK returned to power, only to be scrapped by the ADMK government in 2001. Again the DMK restored the posts and re-appointed the workers in 2006, and the present ADMK government disbanded them in 2011. Noting that these details clearly revealed that the reasons for the disbandment of the posts were political, Justice Suguna said: “A political party assuming power is entitled to engraft the political philosophy behind the party. But, in the matter of execution of a decision taken by the previous government which does not involve any political philosophy, the successive government is duty-bound to continue the same rather than put an end to that.” When it is brought to the notice of the court that for extraneous considerations and political reasons, orders are repeatedly passed so as to affect more than 12,000employees,the court certainly has to look into the matter and see whether the abolition of posts is justified, Justice Suguna observed. Once a budget sanction is made for a particular post, then it will get its sanctity on a par with other regular posts, she said, reiterating her conclusion that the government had not been able to justify the abolition of posts with right reasons.
The Madras High Court stay of the conversion of the Rs 550 crore secretariat-assembly complex into a hospital on Jan.18 is the fourth major setback to the attempts by Jayalalitha to overturn the pet projects implemented by the DMK government.
Restraining the Jayalalitha regime from making any further alteration to the designer-building till the main petition against the move has been disposed of, a division bench of the court asked the government if it had obtained environmental clearance for making it a hospital. The court said that the environmental clearance obtained for the construction of the building would not include clearance for modification. “Keep your hands off the building”, the bench said. The hearing will continue next month.
The court orders, in fact act as speed-breakers for overzealous policy changes based on political expediency. In its excessive eagerness to overturn the legacy of the DMK rule, the present government has embarked on changes that could have been avoided. Even if the previous schemes were found inadequate, improving them, than scrapping them, could have made tremendous practical and governance sense in a state that requires fast-track action to sustain a minimum socio-economic progress.
The Samacheer Kalvi system is a case in point. What Kalaignar attempted, with reasonable success, was to integrate various educational systems covering 12 million students, 45,000 state board schools, 11,000 matriculation schools, 25 oriental schools and 50 Anglo-Indian schools, and different syllabi, text books and exams into a uniform system of school education.
If certain portions of the textbooks were objectionable and Jayalalitha had her reasons to be miffed, she could have rectified the mistake and retained the noble idea of unifying the otherwise confusing systems of education. Instead, she tried to drop it altogether, throwing the future of thousands of children into uncertainty for several months. The government was stubborn until the Supreme Court asked them to stop and go back.
Dismissing the government’s contention, the Supreme Court even said that it was a pre-determined political decision.  Finally, the government blacked out the objectionable content and sent the books to students.
While the move to convert the secretariat into a hospital did not raise any public outrage, except perhaps derision and indifference, the decision on the Rs 170 crore Anna Centenary Library created a huge and spontaneous outcry among various quarters. The nine-floor library, the largest in South Asia, can accommodate 1.2 million books and has the most advanced systems in library management.
Everything about this library is modern and large-scale. But Jayalalitha was not amused and found the building suitable only for a multispeciality children’s hospital, which led to a petition in the High Court which stayed her move. There has been an online campaign against this curious move.
The sacking of 13,000 welfare workers, which has been stalled by the high court, was a sad affair. Whether they were appointed by the DMK or not, the workers had a reasonable monthly income that sustained thousands of families and dovetailed with other public works programmes and social protection schemes such as the NREGA. In fact, in the alternating cycle of DMK and ADMK, they got hurt every time the government changed. When the high court reversed the order of the state government of sacking them, the latter went to the Supreme Court, which referred the case back to the High Court, which passed its order later.
As is the CM, So is the Regime, it appears the First Bench of the Madras High Court comprising Chief Justice M.Y.Iqbal and Justice T.S.Sivagnanam passed an interim order on Nov.4 last staying until further orders the State government’s decision to shift the Anna Centenary Library in Kotturpuram in Chennai and further hearing was posted on Dec.5. When the matter came up on Dec.5, no counter affidavit was filed by the government side. Advocate General A.Navaneethakrishnan produced a letter of the Additional Chief Secretary requesting a short adjournment for filing a detailed counter. The court allowed the prayer. As the AG sought adjournment after Pongal holidays, the Bench ordered that the case be listed on Jan.19, 2012.
Those who are accustomed to or following court cases relating to the government would be surprised at the development of the State administration unable to file its counter even after a month’s time in a case challenging an important announcement made by the Chief Minister, which in the normal course would have been done after much deliberations, consultations and reviews among top officials. And, the government pleading for yet another adjournment for more than a month is indeed flabbergasting. Unless the government’s position is very weak or the decision was taken in haphazard manner without considering implications and hence indefensible.
In the case of 13,636 MNPs who were removed from service by the ADMK regime by a GO on Nov.8, Justice K.Suguna passed an order on Nov.11 staying the GO in respect of two associations of the employees, Tamil Nadu Makkal Nala Paniyalargal Munnetra Sangam and Dindigul Mavatta Makkal Nala Paniyalargal Nala Sangam, whose names were provided to the court register on Nov.12 and permit them to join duty. This was following the AG advancing a flimsy ground challenging the representative capacity of the workers. Then on Nov.21, Justice K.Suguna directed the State government to reinstate all the sacked workers. The government through its counsel made a mention before the First Bench that the State wanted to file an appeal against the Single judge order and was asked to file a petition. On Nov.23, the First Bench comprising Chief Justice M.Y.Iqbal and Justice T.S.Sivagnanam dismissed the appeal and reiterated the stand of the single judge order over reinstating the workers. The judges said that the government should not treat the workers in such a manner whenever it comes to power.
Maintaining that the Tamil Nadu government before removing welfare workers from service should have given them an opportunity to be heard, the Madras High Court said the records “reveal appointment and ouster of these employees were done at the whims of the governments”.
Holding that the single judge had rightly passed the interim order, the bench said it appeared from the record that employees of Tamil Nadu Makkal Nala Paniyalargal Munnettra Sangam and Dindigul Mavatta Makkal Nala Paniyalargal Nala Sangam were initially appointed in 1990 on a consolidated monthly pay of Rs 200 and were removed in 1991 due to change of the government. The judges pointed out that with the change of government every five years the workers were reappointed and removed. Counsel for the ‘sangams’ produced a letter dated November 21 issued by the Rural Development and Panchayati Raj Commissioner to all district collectors to allow those MNPs whose names were furnished to the High Court to attend office in keeping with the court’s direction.
Yet another blow for the ruling party and justice to the public prevailed, irrespective of their party affiliation. Because livelihood is an essential component for survival, even as the sacking orders reached, the workers were distressed and some attempted to end their lives. But then they rejoiced with the court reiterating to reinstate.
Again on Nov.24 when the issue compliance of the interim order of Nov.21 came up before the Single judge, the State Advocate General informed the court that the government had filed a Special Leave Petition in the Supreme Court against the dismissal of its plea challenging the stay. However, counsel for MNPs, R.Vaigai said the SLP was against the interim order and hence the final arguments on the petitions could be continued. The AG said, “We are ready to face anything” after which Vaigai commenced her arguments on the petitions..
The Supreme Court on Nov.29 pulled up the TN government observing that there should be ‘some rule of law in the State’. The Bench of Justice D.K.Jain and Justice Anil Dave, hearing the SLP against the interim order of the Madras HC directing reinstatement of MNPs, asked the State Additional Advocate General (AAG) Guru Krishna Kumar, “What is happening in your State?” Justice Jain told AAG, “Every five years you [State] appoint them. Thereafter, you remove them, again appoint them. Is there not a rule of law, there must be some rule of law in the State.” Senior counsel T.R. Andhyarujina, appearing for the associations, told the court that this was happening every time there was change of government. The AAG submitted, “Since the main writ petition was being heard today (Nov.29), we are not pressing this SLP at present. Let it be listed in the normal course. We will dispel the wrong impression created.” The Bench then posted the SLP for hearing on December 12.
But contrary to what the AAG told the Supreme Court the main writ petition which came for hearing before Justice K.Suguna in the Madras High Court on Nov.29, the Counsel for the government sought adjournment as the Advocate General was otherwise engaged and could not make his submission in the court. Thereafter, every time the Judge posted hearing on some other date, the government counsel came with the same excuse pleading for adjournment. Ultimately on Dec.15, the infuriated Judge asked the government counsel why they were dragging the case of poor contract workers like this and strictly directed that the Advocate General should be present without fail on the next day (Dec.16), to complete hearing in the case. The counsel for workers’ associations R.Vaigai said the government was protracting the case because their case was weak. The next day (Dec.16) Advocate General Navaneetha Krishnan and senior counsel N.R.Chandran appeared and made final arguments. Counsels for workers also completed final arguments. The judge then adjourned orders in the case without specifying date.
Similarly in a case of termination of service of 17 Office Assistants employed in the State Assembly department and Secretariat after the ADMK assumed power, their petition was admitted and notice issued on the government. The Finance department had put a note that only the Advocate General should appear in the case and the hapless sacked employees are being tossed around for months with the government counsel repeatedly seeking adjournments for the appearance of the AG.
Jayalalitha never had the courage and determination to face the cases filed against her as much back as more than 16 years and came out clean. In judicial parlance her name has come to be associated with notoriety for protracting cases by going on appeals after appeals on flimsy grounds to higher courts, seeking adjournments after adjournments (more than 130 in Bangalore Special court alone in the Disproportionate Assets case ) winning for her the title ‘ Queen of adjournments’ (Vaaidha Rani), misusing State machinery to manipulate charges against her (like ordering the DVAC to investigate in the Assets case every time she returns to power) – all with the fond hope of diluting the severity of the charges against her and escaping conviction. The High Court and Supreme Court had repeatedly pulled her up for her delaying tactics and misuse of power. But she remains unmoved and unrepentant.
In Judicial parlance, Jayalalitha’s name is synonymous to and identified with protracting cases against her by hook or by crook. Now she being at the helm, the State government is gaining notoriety for seeking repeated adjournments and appeals after appeals in cases against it. As is the CM, so is the Regime!
So many punches had landed on the ADMK government’s face that it now has no face at all. The string of reverses that the Jaya regime has been suffering in courts in recent times has to be seen to be believed. While the list looks endless, the quashing of more than a dozen Goondas Act detention orders passed against DMK functionaries too fell through rather tamely, despite the hype that preceded their arrests. “It is true advocates have a field day whenever the ADMK captures power. But in my long experience I have not seen so many reverses in such a short span”, said a senior advocate, who did not want to be quoted.
During her earlier tenure too between 2001 and 2006, Jayalalitha regime triggered a virtual avalanche of court cases when it took high voltage decisions such as dismissal of 1.5 lakh government employees, ban on animal sacrifice in temples, introducing Anti-conversion law, POTA detentions, attacks on journalists etc.,
In these 12 months since Jayalalitha assumed power, Tamil Nadu has become a wanderland drifting from rule of law and order and struggling only to be brought to order now and then at the intervention of the judiciary. In short, courts from the lowest to the apex level, are over-loaded with work. Usually, the Central government, for reasons political or otherwise, asks through Governors of States whether rule of law prevailed in their respective State. This may be the first time in the history of independent India, that the Supreme Court inquired a State whether there is rule of law there. Jayalalitha has brought such a disgrace to Tamil Nadu – like a garland of flowers entangled in the hands of a monkey!    

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Jaya’s last ditch effort to save her skin in Assets case by misusing power
Soon after assuming power for the third time in Tamil Nadu, one of the very first action taken by Jayalalitha, was to make a last ditch effort to save her skin – imminent conviction – in the Disproportionate Assets case tried in the Special Court in Bangalore. On her directive, the Chief Secretary conducted an extraordinary review meeting relating to cases in the Special Investigation Cell, DVAC and decided to undertake further investigation in the case against Jayalalitha, with the unstated objective of foiling the case.
Accordingly, the DVAC, Chennai, wrote directly to the judge of the Special Court trying the disproportionate assets case against Jayalalitha stating that it is continuing with the investigation.
The letter, addressed to the judge of the Special Court and the 36th Additional City Civil and Sessions Court, was delivered directly to the court officer by an inspector of the DVAC on June14. The Special Public Prosecutor (SPP) was not informed of it.
The Special Court asked the DVAC to explain in writing why it chose to write to the court directly while keeping the SPP in the dark. “What was the need to give this letter bypassing the Prosecutor? On what provision of the law have you written this letter directly to the court? Normally, whatever the investigating agency has to submit before the trial court has to be done through the prosecutor,” Judge B.M. Mallikarjunaiah told DVAC Inspector A. Immanuel Gnan Sekhar, who delivered the letter to the court.
At this juncture, SPP B.V. Acharya pointed out that the Supreme Court, while transferring the trial to Bangalore from Chennai, had condemned a similar type of conduct. He also urged the court to ask the DVAC why contempt of court proceedings should not be initiated against it.
As the judge was passing an order to summon the Deputy Superintendent of Police of the DVAC who had written the letter, it was pointed out to him that the police officer, G. Sambandam, was present in the court.
As Sambandam informed the court that he had been assisting the investigating officer for a long time and was attending the court proceedings, the Judge asked him to explain under what provisions of the law the letter had been directly sent to the court.
Acharya submitted that the court should proceed with recording the statement of the accused persons as contemplated in Section 313 of the Criminal Procedure Code, as the letter was another method intended to delay the trial. He argued that the court should not mix the issue of the letter with the main case.
Sambandam informed the court that a similar action was taken in another case in Chennai and that the instant letter was written under “instructions.” He sought time to submit his explanation in writing.
Meanwhile, counsel for the accused sought adjournment of the proceedings till the hearing on a petition filed by one of the accused (Sasikala Natarajan) before the Karnataka High Court challenging the special court's order refusing to recall a witness. Counsel stated that the hearing was adjourned to June 21 on the request of the lawyer appearing for the DVAC.
However, Acharya opposed the adjournment and submitted that the High Court had refused to stay the proceedings. The DVAC had now appointed a new lawyer to represent it before the High Court.
While rejecting the plea for adjourning the proceedings, the Special Court directed the DVAC to make available copies of the letter to the SPP and the accused. It adjourned the proceedings to June 18.
The application filed by the DVAC, intimating the court that it is investigating the case, says the Tamil Nadu Chief Secretary, who also holds charge as Vigilance Commissioner and Commissioner for Administrative Reforms, conducted a review meeting on June 3 in Chennai relating to the cases pending in the Special Investigation Cell, DVAC.
“The Chief Secretary has pointed out certain patent lapses [that have] occurred in the Special Case No. 208/2004 [disproportionate assets case against Ms. Jayalalitha and others] during the investigation and directed to rectify the lapse and discrepancies pointed out by his letter dated June 8, 2011,” the application points out.
Deputy Superintendent of Police G. Sambandam, investigating officer, also states in his application that he was submitting these facts to the Special Court by way of intimation as per the guideline of the Supreme Court, in its verdicts, that permits such further investigation without prior permission of the court.
On September 14, in a further setback to Jayalalitha, the Karnataka high court on Friday directed the DVAC, Chennai, not to undertake further investigation in the Rs 66-crore disproportionate assets case involving her.
Allowing a criminal petition filed by senior DMK General Secretary Prof. K Anbazhagan, Justice V Jagannathan directed the special court in Bangalore to adhere to the Supreme Court order of 2003 which while transferring the trial from Tamil Nadu said the special court should hold it on day-to-day basis.
"The SC has said that under the guise of further inquiry, no re-investigation or fresh investigation can be undertaken. What has been done cannot be undone," the court said. "The letter written directly to the special court on June 15, 2011 says that the Investigating Officer wants to take up further investigation from where it stopped in an effort to undo the past. Further investigation sought to be undertaken when the matter has reached the stage of recording the statement of the accused and SC had already fixed the date of appearance.
An attempt is being made to subvert the course of justice and needing this court to invoke its inherent powers available under section 482 of Criminal Procedure Code as it is an extraordinary situation,'' the judge said.
Prof. Anbazhagan sought for conducting the trial on a day-to-day basis as per the SC's directive and also that DVAC should be directed to intimate each and every move through the Special Public Prosecutor (B V Acharya ) only.
After Jayalalitha came back to power in May, DVAC had appointed another counsel (M T Naniah) to plead its case before high court. But that move was negated by the high court.
Jayalalitha suffered yet another setback on Jan.31, 2012 with the Supreme Court rejecting the Tamil Nadu government's appeal against the Karnataka High Court order refusing to entertain its plea for a further probe in the disproportionate assets case against her and four others pending before a special court in Bangalore.
A Bench of Justice Dalveer Bhandari and Justice Dipak Misra, dismissing two appeals filed by DVAC Superintendent of Police, said, “We are not inclined to interfere with the impugned order.”
The Bench asked the special court to complete the trial as expeditiously as possible, uninfluenced by the observations made by the High Court in the impugned order.
Special leave petitions were filed by the State against the orders of the Karnataka High Court quashing the decision of the DVAC to order a further probe in the wealth case.
The High Court had quashed the DVAC's communication for further probe dated June 15, 2011 on a petition filed by DMK General Secretary Prof. K. Anbazhagan challenging the communication.
Senior counsel Ashok Desai, appearing for the State said, “We wanted to conduct further investigation since certain defects and infirmities were noticed.” He cited various decisions and said the right of the Investigating Officer for further probe could not be interfered with.
Justice Dipak Misra told counsel, “You [police] have a right for further probe, but at what stage is the question. If it is an attempt to frustrate the trial, the whole trial will become a mockery.”
Senior counsel Rakesh Dwivedi, who also appeared for the State, justified further probe.
Special Public Prosecutor and Karnataka Advocate General B.V. Acharya traced the genesis of the case and explained to the court how it was transferred from Chennai to Bangalore in 2004.
He said despite his best efforts the trial could not be concluded for the last eight years as application after application was being filed in the special court and the High Court and every attempt was being made to delay the process. He said in 2001 a similar attempt was made to order further investigation in the London hotel case and as a result the whole case was weakened.
The High Court pointed out this fact and had held that the intention to order further probe was not bona fide and had quashed the communication. He said the impugned order should not be interfered with.
Senior counsel T.R. Andhyarunjina, appearing for Prof. Anbazhagan, pointed out that in the meeting held on June 3, 2011 the decision for further probe was taken.
He said between May 16, 2011 and June 3, 2011 various officers were replaced and a new set of officers posted, and in the guise of reviewing various cases a decision was taken for further probe in this case.
He said in this case the chargesheet was filed in June 1997 and since then various attempts were being made by Jayalalitha to frustrate and delay the trial by all means. The intention of the government was not bona fide and if only Prof. Anbazhagan had not challenged the decision, the whole trial would have been vitiated, counsel said and sought dismissal of the appeals.
With the Democle’s sword (the assets case) hanging over, the days of Jayalalitha regime are numbered!

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