Binu M.R. v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **FRIDAY, THE 5TH DAY OF OCTOBER 2012/13TH ASWINA 1934** ## **RP.No. 806 of 2012 (I)** **------------------------------AGAINST THE ORDER/JUDGMENT IN WPC.714/2004 DATED 12-10-2011.** **.................** ## **REVIEW PETITIONER/5TH RESPONDENT:** **-----------------------------------------------------------** **SMT.BINU M.R., UPPER PRIMARY SCHOOL ASSISTANT, ST.AUGUSTINE'S HIGH SCHOOL, MURUKKUMPUZHA, THIRUVANANTHAPURAM.** **BY ADV. SRI.M.R.RAJESH.** ## **RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 4, 6 & 7:** **-------------------------------------------------------------------------------------------** **1. SIMI S., SUJATHA MANDIRAM, THACHARVILAKOM,** **PERUMKUZHI P.O., THIRUVANANTHAPURAM-695 305.** **2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT,** - **GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **3. DEPUTY DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM – 695 001.** **4. DISTRICT EDUCATIONAL OFFICER, STATUE, THIRUVANANTHAPURAM-695 001.** **5. THE MANAGER, ST.AUGUTINE'S HIGH SCHOOL, MURUKKUMPUZHA, THIRUVANANTHAPURAM-695 302.** **6. SMT.SHYLAJA CLETUS, UPPER PRIMARY SCHOOL ASSISTANT, ST.AUGUSTINE'S HIGH SCHOOL, MURUKKUMPUZHA, THIRUVANANTHAPURAM-695 302.** **7. SMT.LEKHARANI, UPPER PRIMARY SCHOOL ASSISTANT, ST.AUGUSTINE'S HIGH SCHOOL, MURUKKUMPUZHA, THIRUVANANTHAPURAM-695 302.** **R1 BY ADV. MR.B. RAGHUNATHAN. R2 TO R4 BY GOVT. PLEADER MR.M.R. RAJESH. R5 TO R7 BY ADV. MR.P. SANTHOSH KUMAR** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 05-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** **RP.No. 806 of 2012 (I)** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE A COPY OF THE APPOINTMENT ORDER DATED 29/07/2002 ISSUED BY THE 4TH RESPONDENT.** **RESPONDENT'S ANNEXURES:NIL.** **//TRUE COPY//** **P.A. TO JUDGE** **rs.** ## **P.R. RAMACHANDRA MENON, J.** ## **---------------------------------------** ## **R.P.No. 806 of 2012 in W.P.(C).No. 714 of 2004** ## **---------------------------------------Dated this the 5[th] day of October, 2012** ## **ORDER** The review petition has been filed by the 5[th] respondent in the writ petition, seeking to set aside the judgment passed by this Court in W.P.(C).No.714/2004, whereby a positive direction was given to the concerned respondents (after setting aside Ext.P10) to appoint the writ petitioner as UPSA in respect of the 1[st] vacancy arose on 02.06.2003 and to take necessary steps to approve the said appointment and for disbursement of arrears of salary and such other benefits, within the time as specified. 2. The review petitioner now contends that, by virtue of her credentials, particularly being a Rule 51 A claimant, she is having better rights over the writ petitioner, who is only a Rule 51 B claimant and that the appointment of the review petitioner stands approved as per Annexure A as well. The review petition has been filed along with a petition to condone the delay of 274 days in filing the same, stating that the matter could not be R.P. No. 806 of 2012 -2- pursued on time as the party was not aware of the proceedings. The explanation for the delay as given in paragraph 5 to 7 of the affidavit in support of the application to condone the delay is extracted below: “5. The Review Petitioner's cousin brother Adv. A Siji was looking after his case for her through me in the High Court. Even though timely instructions were given to him by me for production of documents/pleadings, they were not intimated to the review petitioner. On the other hand the review petitioner was contacting him and he had assured her that all that is necessary was being done. Whenever the matter was enquired it was assured by him that the case is being taken care of. The above said Adv. Siji is suffering from various ailments and he suffered a stroke and now has virtually stopped his practice. 6. The Manger had also assured the review petitioner that since her claim was under Rule 51 A the same is superior to that of a claim under Rule 51 B. But unfortunately the Manager chose not to file a counter and he did not even produce the order of approval of the temporary service of the review petitioner which made her a Rule 51 A claimant. It is now understood that the Manager was trying to protect the respondent in the writ petition who is none ## R.P. No. 806 of 2012 -3- other than his daughter in law. All this and the bonafide omission on the part of the clerk in noting the list of the case resulted on the judgment under review. 7. Now during last month the 4[th] respondent Manager and the writ petitioner intimated the review petitioner about the judgment under review. On enquiries with the office of this Hon'ble Court she confirmed about the judgment under review. When contacted the 4[th] respondent herein who is the DEO., informed the review petitioner that since her claim is superior to that of the writ petitioner the department will also file an Appeal against the judgment under Review. When this was intimated to me I also took some time to prepare the review petition. Due to this there is delay of 274 days in preferring this review petition.” After considering the said version, this Court finds that, it cannot be taken as a satisfactory explanation at all and as such, the review petition is liable to be dismissed on this score alone. 3. Coming to the merits involved, the writ petition was filed as early as in the year 2004, while the final verdict was passed by this Court only on 12.10.2011, i.e., nearly after seven years. The fact that no counter affidavit was filed by any of the respondents has been specifically taken note of by this Court in R.P. No. 806 of 2012 -4- ## paragraph '6' of the judgment, which reads as follows: “Despite the completion of service of notice and the pendency of the matter for more than seven years, no counter affidavit has been filed from the part of the respondents particularly the 4[th] respondent Manager or the contestant respondents 5 to 7” As such, no case can be built up by the review petitioner, in the absence of any pleading through the review petition, as there is no error apparent on the face of records. 4. With regard to the alleged claim of the review petitioner as a Rule 51 A claimant, it was specifically contended by the writ petitioner that, the review petitioner, who was the 5[th] respondent in the writ petition, was never appointed against any regular vacancy and hence was not liable to be treated as a Rule 51 A claimant (which fact is sought to be rebutted by the review petitioner by placing reliance on Annexure A1). This however does not form the subject matter of consideration in exercise of the power of review, for more than one reason. True, a reference is made to the law declared by the Court in **Baiju Kumar Vs. D.E.O. Trivandrum (2003 (3) KLT 240)** and also **S.N.G.S. High School Vs. Reji Sagar (2008 (1) KLT 1026)** , in paragraph '8' of the judgment passed in the writ petition. In the R.P. No. 806 of 2012 -5- above decisions, the scope of Rule 51 B claim, was explained and held that, it was for the manager to inform the vacancy to the party concerned, before making any appointment. It is also true that the said proposition has been recently set aside by the Supreme Court as per the decision reported in **Shreejith v. Deputy Director (Education) Kerala (2012 (3) KLT 214 (SC))** observing that the Manager is not bound to run after the legal heirs, if any. But, this cannot have any significance as far as the present case is concerned, in so far as the verdict passed by this Court in the present case, on the basis of the available pleadings and materials on record, particularly, in the absence of any dispute with regard to the averments raised by the petitioner for want of any counter affidavit, despite the fact that, the matter was pending consideration for nearly '7' years. 5. The learned counsel for the review petitioner however submits that the power of review could be exercised for 'any other reason' as explained by the Apex Court in **Board of Control for Cricket in India V. Nethaji Cricket Club (2005** **(4) SCC 741)** . 'Any other reason' as explained by the Apex Court in the aforesaid decision cannot be made applicable to the case in hand, for the reasons mentioned herein before, especially R.P. No. 806 of 2012 -6- the want of necessary pleadings by filing any counter affidavit at any point of time, when the matter was pending consideration for nearly '7' years. The correct legal position has been declared by the Apex Court in another decision reported in **Smt. Meera Bhanja V. Smt. Nirmala Kumari Choudhuri (AIR 1995 SC 455)** , making it clear that the scope of review shall not be misunderstood as a substitute for appeal. In the above circumstance, this Court finds that there is no merit or bonafides in the review petition as well. As such, both the application to condone the delay as well as the review petition are held as not sustainable and they are dismissed accordingly. ## **P.R. RAMACHANDRA MENON, JUDGE.** Kp/-