Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS & THE HONOURABLE MR.JUSTICE K. BABU MONDAY, THE 29TH DAY OF AUGUST 2022 / 7TH BHADRA, 1944 RP NO. 48 OF 2022 AGAINST THE ORDER/JUDGMENT IN WP(C) 19758/2016 OF HIGH COURT OF KERALA REVIEW PETITIONER/PETITIONER: VIJAY KUMAR, AGED 40 YEARS, SON OF RAGHAVENDRA RAO, ERUPUTHEN VEEDU, INDIRA NAGAR, PERURKADA P.O., THIRUVANANTHAPURAM, PIN - 695005 BY ADVS. NINEEP K. C.MOHAMMED MUSTHAFA RESPONDENTS/RESPONDENTS: 1 TRAVANCORE DEVASWOM BOARD-TDB REPRESENTED BY THE PRINCIPLE SECRETARY DEPARTMENT OF DEVASWOM, THIRUVANANTHAPURAM, PIN - 695003 2 TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY NANTHANCODE P.O, THIRUVANATHAPURAM THIRUVANANTHAPURAM, PIN - 695003 3 THE PRESIDENT, TRAVANCORE DEVASWOM BOARD, NANTHANCODE P.O, THIRUVANANTHAPURAM, PIN - 695003 BY ADV SHRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 29.08.2022, ALONG WITH RP.49/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS & THE HONOURABLE MR.JUSTICE K. BABU MONDAY, THE 29TH DAY OF AUGUST 2022 / 7TH BHADRA, 1944 RP NO. 49 OF 2022 AGAINST THE ORDER/JUDGMENT IN WA 196/2021 OF HIGH COURT OF KERALA REVIEW PETITIONER/PETITIONER: RETHIMOL K.V, AGED 45 YEARS, D/O VELAYUDHAN K.V, POTHACHIRA, KADAKKARAPALLY P.O., CHERTHALA, ALAPPUZHA DISTRICT, ALAPPUZHA, PIN - 688629 BY ADVS. NINEEP K. C.MOHAMMED MUSTHAFA RESPONDENTS/RESPONDENTS:
1 THE TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, DEVASWOM BUILDINGS, NANTHANCODE P.O., THIRUVANANTHAPURAM, PIN - 695033 2 THE COMMISSIONER, TRAVANCORE DEVASWOM BOARD, DEVASWOM BUILDING, NANTHANKODE P.O., THIRUVANANTHAPURAM, PIN - 695003
3 KERALA DEVASWOM RECRUITMENT BOARD, REPRESENTED BY ITS SECRETARY, 2ND FLOOR, DEVASWOM BUILDING, M.G ROAD, OPP. GOVT. AUYURVEDA COLLEGE, THIRUVANANTHAPURAM-695001 THIRUVANANTHAPURAM, PIN - 695001 BY ADV. SHRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD SHRI.V.V.NANDAGOPAL NAMBIAR, SC, KERALA DEVASWOM RECRUITMENT BOARD THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 29.08.2022, ALONG WITH RP.48/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
'C.R' ALEXANDER THOMAS & K.BABU, JJ. ----------------------------------------------- R.P No. 48 of 2022 [Arising out of the impugned judgment dated 15.09.2021 in W.P(C) No.19758/2016] & R.P No. 49 of 2022 [Arising out of the impugned judgment dated 15.09.2021 in W.A No.196/2021] ----------------------------------------------- Dated this the 29th day of August, 2022
ORDER
K.BABU, J.
These Review Petitions are filed for reviewing the judgment
passed by this Court on 15.09.2021 in Writ Petition No.19758/2016 and W.A.No.196/2021.
2. The Review Petitioner in R.P.No.48/2022 is the petitioner in W.P(C)No.19758/2016. The Review Petitioner in R.P.No.49/2022 is the appellant in W.A.No.196/2021.
3. The operative portion of the impugned judgment reads thus: “On the basis of the above discussion, we come to the following conclusions:
1. The Travancore Devaswom Board has had statutory
procedures for recruitment to the regular/permanent posts all throughout as narrated below: In view of Section 29A of the TCHRI Act, 1950, during the period of the temporary/provisional appointment of the petitioners (with effect from 01-10-2011), appointment to regular/permanent posts held by the petitioners was to be
done only from the select list prepared by the Kerala Public Service Commission as per Kerala Public Service Commission (Additional Functions As Respects the Administrative Services Under Devaswom Boards) Act, 2008 read with Kerala Public Service Commission (Additional Functions As Respects the Administrative Services Under Devaswom Boards) Rules,
2009. With effect from 10-11-2012, Section 29A was omitted
from the TCHRI Act, 1950, and the Kerala Public Service Commission (Additional Functions As Respects the Administrative Services Under Devaswom Boards) Act, 2008 was repealed as per Act 1 of 2014 aforementioned. Therefore, during the period from 10-11-2012 to 01-03-2014, Rules 4, 9, 12 read with Schedule III of the Special Rules framed under Section 35 of the TCHRI Act, 1950 governed the field of appointment. On 01-03-2014, the Kerala Devaswom Recruitment Board Act, 2015 came into force, by which an autonomous Devaswom Recruitment Board was constituted, for preparing the select list of candidates for appointment in various posts other than hereditary posts and posts in aided educational institutions in the Devaswom Boards of the State of Kerala. With effect from 01-03-2014, appointment to regular/permanent posts in respect of the posts held by the petitioners can only be done from the select list prepared by the Recruitment Board.
2. The petitioners have never undergone a selection process as per the statutory scheme prescribed to hold a regular/permanent post in the Devaswom Board.
3. The petitioners were appointed provisionally in the existing
vacancies initially for a period of 89 days, and they were allowed to continue for a period, not beyond 179 days and the Devaswom Board never intended to allow the petitioners to continue for a period beyond 179 days.
4. The petitioners continued in the service of the Devaswom Board beyond the period of 179 days under cover of orders of this Court during the various stages of the litigative proceedings.
5. Since statutory procedures were in existence, for the
appointment to the regular/permanent cadre all throughout the period during which the petitioners held posts in the Devaswom Board, and the petitioners have not gone through the selection process prescribed by the statutes that governed the field, they are not entitled to regularisation as claimed.
6. In Umadevi (supra) the Apex Court declared that
regularisation should be permitted only as a one-time measure subject to the conditions mentioned in paragraph 53 of the judgment. The petitioners remained in the service of the Devaswom Board as per the orders of this Court during various stages of litigative proceedings. Moreover, they have not continued to work up to the cut-off period of ten years,
prescribed in paragraph 53 of the judgment in Umadevi. Therefore, the petitioners are not entitled to regularisation in terms of the directions contained in paragraph 53 of the
judgment in Umadevi (supra).
7. The Devaswom Board is obliged to make appointments to the
permanent/regular posts following the statutory procedures framed in this regard and in fulfilment of the constitutional obligation as laid down in Articles 14, 15, and 16.
8. The petitioners are not entitled to the benefit of the doctrine of legitimate expectation for seeking regularisation of their services.
9. The petitioners cannot press for following any past practice of
regularisation as the Devaswom Board is duty-bound to make appointments in accordance with law, and illegality committed in the past cannot be allowed to perpetrate in view of the declaration of law in Umadevi (supra) and in State of U.P. v. Neeraj Awasthi (supra).
10. In view of the law declared in State of Karnataka v. KGSD
Kanteen Employees' Welfare Association (supra), the petitioners cannot press for a scheme for regularisation as the Devaswom Board has the constitutional obligation to make appointment only in fulfilment of the statutory procedures regarding appointment. Framing of a scheme for regularisation will be in violation of Articles 14, 15, and 16 of the Constitution.
11. Resultantly, the petitioners have failed to establish any legal right to be enforced against the respondents for regularisation of their services.
12. The Devaswom Board shall refund the cash security, if any furnished by the petitioners at the time of appointment, in accordance with law.”
4. The Review Petitioner in R.P.No.48/2022 impugns the
judgment on the ground that respondent No.2 (respondent No.1 in
R.P.No.49/2022) has proceeded to terminate the services of the petitioner and other employees without implementing Ext.P5 Government Order whereby the respondents are bound to reserve 3% vacancies in Class III and Class IV posts for the appointment from physically disabled persons in accordance with the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
5. The Review Petitioner in R.P.No.49/2022 contended that
the judgment under review had not considered the impact of the provisions of the Rights of Persons with Disabilities Rules, 2017 and Section 34 of the Rights of Persons with Disabilities Act, 2016.
6. Heard Sri. Nineep K, the learned counsel appearing for the
review petitioners, Sri. G.Biju, the learned Standing Counsel for the Devaswom Board, appearing for the respondents in R.P.No.48/2022 and respondent Nos.1 and 2 in R.P.No.49/2022 and Sri. V.V.Nandagopal Nambiar, the learned Standing Counsel for the Kerala Devaswom Recruitment Board, appearing for respondent No.3 in R.P.No.49/2022.
7. This Court dispelled the claims of the petitioners essentially
on the ground that the petitioners had never undergone a selection process as per the statutory scheme prescribed to hold regular/permanent posts in the Devaswom Board and they continued in service as per the orders of this Court during the various stages of the litigative proceedings and further that, in view of the law declared by the Apex Court in Secretary, State of Karnataka and others v. Umadevi (3) and others [(2006) 4 SCC 1] the Devaswom Board was obliged to make appointments in permanent/regular posts following the statutory procedures framed in this regard.
8. On the applicability of the provisions of the Rights of
Persons with Disabilities Act, 2016 this Court considered the materials placed before it and held that none of the petitioners secured the required qualifying marks in the OMR test. This Court also held that as the petitioners do not belong to clauses 'd' and 'e' of Section 34 of the Act no prejudice had been caused to them due to the non-implementation of additional 1% reservation.
9. A review under Section 114 and Order 47 Rule 1 of the Code of Civil Procedure will be maintainable only in the following circumstances:
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the Petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
10. In Sow Chandra Kante v. Sheikh Habib [(1975) 1 SCC 674], on the scope of review of judgment, the Apex Court held thus: “A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake
or like grave error has crept in earlier by judicial fallibility.... The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality.”
11. In Meera Bhanja v. Nirmala Kumari Choudhury
[(1995) 1 SCC 170] the Apex Court held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 of the Code of Civil Procedure.
12. In Chhajju Ram v. Neki (AIR 1922 PC 112), which was
approved by the Apex Court in Moran Mar Basselios Catholicos and another v. Most Rev. Mar Poulose Athanasius and others [(1955) 1 SCR 520] the Privy Council held that the words “any other sufficient reason” appearing in Order 47 Rule 1 of the Code of Civil Procedure must mean “a reason sufficient on grounds at least analogous to those specified in the rule”.
13. In Moran Mar Basselios Catholicos (supra), the Apex Court held that error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law.
14. In T.C. Basappa v. T. Nagappa [(1955) 1 SCR 250] the Apex Court held that such error is an error which is a patent error and not a mere wrong decision.
15. In Hari Vishnu Kamath v. Syed Ahmad Ishaque
(AIR 1955 SC 233) it was held that it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record.
16. In Kerala State Electricity Board v. Hitech Electrothermics and Hydropower Ltd., and others [(2005) 6 SCC 651], the Apex Court on the review of judgment held thus:
“10........In a review petition it is not open to this Court to reappreciate the evidence and reach a different conclusion, even if that is possible. Learned Counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the
conclusion reached by this Court. We are afraid such a
submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review Petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise.”
17. Under the garb of filing a review petition, a party cannot be
permitted to repeat old and overruled arguments for reopening the conclusions arrived at in a judgment. The power of review is not to be confused with the appellate power, which enables the Superior Court to correct errors committed by a subordinate Court (Vide: Jain Studios Ltd. v. Shin Satellite Public Co.Ltd [(2006) 5 SCC 501].
18. In S. Madhusudhan Reddy v. V. Narayana Reddy
and Others (MANU/SC/1013/2022), the Apex Court narrated the situations in which review will not be maintainable, which read thus: “20.2. When the review will not be maintainable:
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should
not be an error which has to be fished out and searched. (viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.”
19. In Patel Narshi Thakershi and others v. Shri. Pradyuman Singhji Arjunsinghji [(1971) 3 SCC 844] the Apex Court held thus:
“4..... It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order.......”
20. The petitioners failed to place on record any of the
requirements that warrant review of the impugned judgment. The Review Petitions lack merits. The Review Petitions are dismissed. Sd/- ALEXANDER THOMAS, JUDGE Sd/- K.BABU, JUDGE KAS