Review petitions under Order 47 CPC against WP(C) 2983/2015, Kerala High Court

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT ``` ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 9 [ TH ] DAY OF JUNE 2022 / 19TH JYAISHTA, 1944 ``` ``` RP NO. 697 OF 2021 AGAINST THE ORDER/JUDGMENT IN WP(C) 2983/2015 OF HIGH COURT OF KERALA ``` ## **`REVIEW PETITIONER/S:`** ``` 1 THE DIRECTOR AGENCY FOR NEW AND RENEWABLE ENERGY RESEARCH AND TECHNOLOGY (ANERT), (FORMERLY KNOWN AS AGENCY FOR NON- CONVENTIONAL ENERGY AND RURAL TECHNOLOGY), VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN-695 033 2 AGENCY FOR NEW AND RENEWABLE ENERGY RESEARCH AND TECHNOLOGY (ANERT), (FORMERLY KNOWN AS AGENCY FOR NON- CONVENTIONAL ENERGY AND RURAL TECHNOLOGY), REPRESENTED BY ITS EXECUTIVE COMMITTEE, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN-695 033 BY ADV T.R.HARIKUMAR ``` ## **`RESPONDENT/S:`** ``` 1 P.VALSARAJ AGENCY FOR NEW AND RENEWABLE ENERGY RESEARCH AND TECHNOLOGY (ANERT), ENERGY AND RURAL TECHNOLOGY), VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN-695 033 2 V.KAMALA DEVI, SCIENTIST B, AGENCY FOR NEW AND RENEWABLE ENERGY RESEARCH AND TECHNOLOGY (ANERT), VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN-695 033 3 STATE OF KERALA, REPRESENTED BY THE SECRETARY, POWER DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,PIN-695 001 BY ADV VISHNU S.CHEMPAZHANTHIYIL ``` ``` THIS REVIEW PETITIONS HAVING COME UP FOR ADMISSION ALONG WITH R.P NO. 847 OF 2021, ON 09.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RP NOs. 697 & 847 OF 2021 ``` ``` 2 ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT ``` ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 9 [ TH ] DAY OF JUNE 2022 / 19TH JYAISHTA, 1944 RP NO. 847 OF 2021 AGAINST THE ORDER/JUDGMENT IN WP(C) 2983/2015 OF HIGH COURT OF KERALA ``` ## **`REVIEW PETITIONER/S:`** ``` STATE OF KERALA REPRESENTED BY THE SECRETARY, POWER DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. BY ADV GOVERNMENT PLEADER ``` ``` RESPONDENT/S: ``` ``` 1 P.VALSARAJ AGENCY FOR NON-CONVENTIONAL ENERGY AND RURAL TECHNOLOGY(ANERT), VIKAS BHAVAN.P.O, THIRUVANANTHAPURAM-695033. 2 V.KAMALADEVI, SCIENTIST-B, AGENCY FOR NON-CONVENTIONAL ENERGY AND RURAL TECHNOLOGY(ANERT), VIKAS BHAVAN.P.O, THIRUNANTHAPURAM-695033. 3 THE DIRECTOR, AGENCY FOR AND RENEWABLE ENERGY RESEARCH AND TECHNOLOGY(ANERT), (FORMERLY KNOWN AS AGENCY FOR NON- CONVENTIONAL ENERGY AND RURAL TECHNOLOGY), VIKAS BHAVAN.P.O,THIRUVANANTHAPURAM-695001. 4 AGENCY FOR NEW AND RENEWABLE ENERGY RESEARCH AND TECHNOLOGY(ANERT), (FORMERLY KNOWN AS AGENCY FOR NON-CONVENTIONAL ENERGY AND RURAL TECHNOLOGY), VIKAS BHAVAN.P.O, THIRUVANANTHAPURAM-695033. ``` ``` BY ADV S.VISHNU ``` ``` THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ALONG WITH R.P NO. 697 OF 2021, ON 09.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RP NOs. 697 & 847 OF 2021 ``` ``` 3 ``` ## **ORDER** These review petitions are filed seeking to review the judgment dated 5.12.2019 in W.P.(C) No.2983/2015. R.P.No.697/2021 is filed by the Director, Agency for New and Renewable Energy Research and Technology (ANERT) and R.P.No. 847/2021 is filed by the State seeking the very same prayer. In both the review petitions, it is stated that the respondents were not able to place Annexure-1 order vide No. G.O.(Rt) No.13/2010/PD dated 16.1.2010 before this Court at the time of consideration of the writ petition and according to the review petitioners, if the same had been produced the result would have been different. It is contended that the promotion granted to the petitioners on the basis of Annexure-III order produced in R.P.No.697/2021 was improper. It is also contended that the grant of promotions to the writ petitioners retrospectively relaxing all procedures stipulated in the CSR norms was an egregious act and based on serious misrepresentation and faulty practices. 2. I have heard Smt. Nisha Bose, the learned Government pleader, Sri. Arjun Raghavan, the learned counsel appearing for the review petitioners and Sri. Vishnu Chempazhanthiyil, the learned counsel appearing for the respondents 1 and 2. ``` RP NOs. 697 & 847 OF 2021 ``` ``` 4 ``` 3. At the outset, with regard to the scope of review jurisdiction, the Apex Court in **Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius** [AIR 1954 SC 526] highlighted the limitations in the application of review and it was observed that the scope of an application for review is much more restricted than that of an appeal. Under Order 47 Rule 1 of the Code of Civil Procedure, 1908, the court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified grounds, namely ( _i_ ) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, ( _ii_ ) mistake or error apparent on the face of the record and ( _iii_ ) for any other sufficient reason. 4. In **Shivdev Singh & Others v. State Of Punjab & Others** [AIR 1963 SC 1909], the Apex Court had held that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of a new and important matter or evidence that after ``` RP NOs. 697 & 847 OF 2021 ``` ``` 5 ``` the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. 5. In **Lily Thomas v. Union of India** , (2000) 6 SCC 224 it was observed as follows in para 56 of the judgment 56. It follows, therefore, that the power of review can be exercised for the correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. 6. In the light of the above principles, if the records are perused, what comes out is that the respondents 1 and 2 (hereinafter referred to as the ‘Scientists’), were recruited after a National Level Recruitment Process in ANERT. They were offered pay and service conditions comparable to those existing in organizations such as CSIR/ICAR/UGC and other similar organizations of the Government of India. In the year 2006, they approached this Court and filed W.P.(C) No.27417/2006 complaining that they were denied the pay and allowances and other service benefits as provided for in the CSIR pattern ``` RP NOs. 697 & 847 OF 2021 ``` ``` 6 ``` and for releasing the arrears of salary. A learned Single Judge of this Court, by judgment dated 20.1.2009, after considering the entire aspects of the matter, disposed of the writ petition directing the respondents to consider the petitioners' promotion under the CSIR pattern with effect from the eligibility date. The Director of ANERT was directed to submit a proposal to the Government and directions were issued to the Government to pass orders on the question of promotion and other allowances. When the directions were not complied with, the Scientists preferred Contempt Case Civil No. 1373/2009 and based on the affidavit filed by the Government stating that all the allowances as per CSIR approved by the State Government have already been allowed to the petitioners, the Contempt Case was closed by order dated 27.5.2020. 7. While so, G.O.(R.T.) No. 13/2010/PD dated 16.01.2010, (Annexure-1 in both the review petitions) was issued declining promotion on the ground that the Screening Committee did not recommend the Scientists for promotion to the assessment committee on the ground that the Scientists were not in a position to produce assessment reports or self-appraisal forms for assessing their eligibility. The Scientists filed W.P.(C) No.31359/2010 challenging the Government Order dated 16.1.2010. While the writ petition was pending consideration, the Government came out with G.O.(MS) No.8/2013/PD dated 22.2.2013 ``` RP NOs. 697 & 847 OF 2021 ``` ``` 7 ``` reviewing the Government Order dated 16.1.2010. After detailed consideration of the entire aspects, the Government accorded promotion to the Scientists under the CSIR pattern in relaxation of the provisions concerning screening and assessment process as specified in KSCSTE Rules with prospective effect. It was however made clear that the said order shall be subject to the final verdict in W.P.(C) No.31359/2010. Later, W.P.(C) No.31359/2010 came up for consideration before this Court and the writ petition was dismissed as withdrawn in the light of Government Order dated 22.2.2013, reserving liberty to the petitioners to challenge the Government Order to the extent it declines retrospective promotion under the CSIR pattern in relaxation of screening and assessment process specified in KSCSTE Rules if they are so advised. In tune with the Government Order, the Government issued G.O.(MS) No.25/2014/PD dated 24.7.2014 clarifying that the Scientists are eligible for full series of promotions from Scientists B to Scientists F as on the date of eligibility as per CSIR norms by relaxing the screening and assessment process. However, it was ordered that promotion up to 22.2.2013 shall be notional and no arrears or other benefits shall be paid up to 22.2.2013. 8. The petitioners filed W.P.(C) No. 2983/2015 challenging the Government Order dated 24.7.2014 seeking grant of monetary arrears ``` RP NOs. 697 & 847 OF 2021 ``` ``` 8 ``` on promotions prior to 22.2.2013 by contending that the delay in grant of promotions was due to the fault of ANERT and not the petitioners. 9. While so, it appears that on 18.2.2015, the Director, ANERT issued Annexure-R8 (produced in R.P. No.847/2021) seeking the constitution of a competent team of experts/senior officials from the Finance, Law and P & AR Department to thoroughly go through ANERT records to resolve the issue relating to certain discrepancies of dates with regard to a report dated 24.2.2012 sent by the Director, ANERT to the Government, which according to the Director was relied upon by the Government to grant promotion to the Scientists in relaxation of the rules. The issue highlighted is that one of the scientists was in charge of the Registrar during January-February 2012 and that he had forwarded certain misleading data to gain promotion. The Government considered the matter and has issued Annexure-R6 (produced in R.P.No.847/2021) making it clear that the issue has been settled once and for all and there is no question of reopening the issue. The Director was ordered to implement the directions issued by the Government pursuant to directions issued by this Court, and not to seek further clarifications. The Director was told in no uncertain terms that his request for further clarifications was unnecessary as it would be tantamount to flouting the directions issued by this Court. ``` RP NOs. 697 & 847 OF 2021 ``` ``` 9 ``` 10. W.P.(C) No. 2983/2015 came up for consideration before this Court and by the judgment under review, this Court took the view that the order passed by the Government denying arrears of pay from the respective dates from which they were granted promotion was unsustainable and holding so, the writ petition was allowed directing the respondents to disburse the arrears of pay to the Scientists from the respective dates of their promotion within a time frame. This Court had observed that the ANERT was bound to take necessary steps to carry out the assessment and obtain the appraisal report at the relevant time and there was no justification in denying benefits of promotion. 11. The review petitioners contend that there is an error apparent on the face of the record in as much as G.O.(Rt) No.13/2010/PD dated 16.1.2010 was not brought to the notice of this Court. According to the review petitioners, if Annexure-1 was produced, it would have been clear that assessment proceedings were conducted to ascertain the merit of the Scientists. I find on a perusal of the records that reference to Annexure-1 Government order was made by the Government in paragraph No. 5 of the counter affidavit dated 31.7.2018 and the said document was referred to by this Court in paragraph No. 7 of the judgment. In that view of the matter, the review petitioners ``` RP NOs. 697 & 847 OF 2021 ``` ``` 10 ``` cannot be heard to contend that Annexure-I order, if produced and considered at the time of the hearing, would have made a difference. 12. The next contention advanced by the review petitioners to seek for review is with regard to Annexure-IV issued by the Senior Audit Officer on 12.3.2020 calling for a report from the Director. In the said report, it has been stated that the action of the Director hiding vital facts before the Government was highly irregular and this had led to the grant of undue promotions to the Scientists with retrospective effect relaxing all norms/evaluation and assessments. At this juncture, it would be apposite to bear in mind that the judgment in W.P.(C) No. 2983/2015 was rendered on 5.12.2019 much prior to the issuance of Annexure-IV. Furthermore, the petitioners have placed on record Annexure-R(2) and R(3) (produced in R.P.No.847/2021), which reveals that reminders were sent by the Audit Officer on 24.6.2021 and on 8.12.2021 and no report as called for was submitted. In view of the decisions rendered by this Court in the earlier judgments and in view of the stand taken by the Government in Annexure-R6, I am of the considered opinion that the request for clarification from the audit officer is no reason to seek review of the judgment. **==> picture [419 x 42] intentionally omitted <==** ``` RP NOs. 697 & 847 OF 2021 ``` ``` 11 ``` 13. I find that a writ petition was filed by a person claiming to be a public-spirited citizen as W.P.(C) No. 9622/2021, seeking issuance of a writ of quo warranto challenging the appointment of the Scientists. He had also sought a declaration that the Scientists are not eligible to be promoted from the post of Scientist B to Scientist F by relaxing the screening and assessment process. A Division Bench of this Court had the occasion to consider the matter and has held by judgment dated 17.5.2021 that no illegality or arbitrariness could be pointed out in the order passed by the State Government. While disposing of the matter, the Division Bench had the opportunity to delve into all the aspects, and the stand taken by the Government relaxing the screening and assessment process was found to be proper. 14. It is settled by now that the scope of the appellate powers and the review powers are well defined. The power of review under Order 47 Rule 1 of the Code of Civil Procedure, 1908 is very limited and it may be exercised only if there is a mistake or an error apparent on the face of the record. The power of review is not to be confused with the appellate power. The review petition/application cannot be decided like a regular intra-court appeal. **==> picture [419 x 42] intentionally omitted <==** ``` RP NOs. 697 & 847 OF 2021 ``` 15. As discussed earlier, the grounds raised by the petitioners seeking review of the judgment are not within the purview of the powers of review as provided under Order XLVII of the CPC. This ground, if believed, disturbs the judgment under review on merits, which is obviously not the scope of review. The petitioners have not been successful in making out any case necessitating interference by this Court by way of review of its earlier judgment. To conclude, upon consideration of the settled position of law in this regard and having considered the submissions made by the respective parties and in view of the observations made in the preceding paragraphs, I am of the clear opinion that in the instant case, no review, as prayed for, is permissible and in consequence thereof, the prayer for review, as has been made by the petitioners, stands rejected. These Review Petitions will stand dismissed. **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** PS/12/6/2022 ``` RP NOs. 697 & 847 OF 2021 ``` ``` 13 ``` ## **`APPENDIX OF RP 697/2021`** ## **`PETITIONER ANNEXURES`** - `Annexure I A TRUE COPY OF THE G.O(RT) NO.13/2010/P.D.DATED 16.01.2010` - `Annexure II A TRUE COPY OF THE ORDER NUMBER AS A.O.NO.34/HRM/ANERT/2011 DATED 24.02.2011` - `Annexure III A TRUE COPY OF THE COVERING LETTER NUMBERED AS 1176/HRM/2012/ANERT DATED 24.02.2012 ALONG WITH REPORT` - `Annexure IV A TRUE COPY OF THE RELEVANT PAGES OF THE INSPECTION REPORT ALONG WITH COVERING LETTER DATED 12.03.2020` - `Annexure V A TRUE COPY OF THE RELEVANT PAGES OF THE CSIR SCIENTIST RECRUITMENT & PROMOTION RULES, 2001` - `Annexure VI A TRUE COPY OF THE LETTER ISSUED BY THE 1ST PETITIONER TO THE 3RD RESPONDENT NUMBERED AS 780/HRM/15/ANERT DATED 06.09.2021` - `Annexure VII A TRUE COPY OF THE NOTE NUMBERED AS ANERT-TECH/182/2021-PE2 (RTS) DATED 29.07.2021` - `Annexure VIII A TRUE COPY OF THE REPLY DATED 30.07.2021 FURNISHED BY THE 1ST RESPONDENT` - `Annexure IX A TRUE COPY OF THE REPLY DATED 29.07.2021 FURNISHED BY THE 2ND RESPONDENT` ## **`RESPONDENT ANNEXURES`** ``` Annexure R1 TRUE COPY OF THE FORWARDING LETTER NO. CA/IV/A/12-8607/310 DATED 12.03.2020 SENDING THE INSPECTION REPORT BY AUDIT FOR THE PERIOD 2017-19 ISSUED BY THE SENIOR AUDIT OFFICER/CA IV TO THE DIRECTOR, ANERT ``` ``` RP NOs. 697 & 847 OF 2021 ``` ||`14`| |---|---| |`Annexure R2`|`TRUE COPY OF COMMUNICATION NO.ECA`| ||`IIA/12-8607/2017-19/14/59 DATED 24.06.2021 ISSUED`| ||`BY THE OFFICE OF THE PRINCIPAL ACCOUNTANT GENERAL`| ||`(AUDIT-II) KERALA TO THE DIRECTOR, ANERT.`| |`Annexure R3`|`ATRUE COPY OF COMMUNICATION NO.ECA`| ||`IIA/12-8607/2017-19/21-22/44/36 DATED 08.12.2021`| ||`ISSUED BY THE OFFICE OF THE PRINCIPAL ACCOUNTANT`| ||`GENERAL (AUDIT-II) KERALA TO THE DIRECTOR, ANERT.`| |`Annexure R4`|`A TRUE COPY OF THE JUDGMENT DATED 17.05.2021 IN`| ||`W.P(C.) NO. 9622/2021 OF THE HON’BLE HIGH COURT`| |`Annexure R5`|`TRUE COPY OF THE NOTES FOR THE 14TH EXECUTIVE`| ||`COMMITTEE MEETING OF ANERT`| |`Annexure R6`|`TRUE COPY OF COMMUNICATION NO.5778/P.S2/2014/POWER`| ||`DATED 26.08.2015 ISSUED BY THE GOVERNMENT OF`| ||`KERALA, POWER DEPARTMENT`| |`Annexure R7`|`TRUE COPY OF STATEMENT SUBMITTED BY FORMER`| ||`DIRECTOR, P.B. SUGHTHAKUMAR IN COMPLAINT NO.`| ||`510/2016 BEFORE THE KERALA LOK AYUKTA.`| ``` RP NOs. 697 & 847 OF 2021 ``` ``` 15 ``` ## **`APPENDIX OF RP 847/2021`** ## **`PETITIONER ANNEXURES`** |`Annexure I`|`TRUE COPY OF G.O.(RT)NO.13/2010/PD DATED`| |---|---| ||`16.01.2020.`| |`Annexure II`|`TRUE COPY OF THE GOVERNMENT ORDER`| ||`G.O.(MS)NO.8/2013/PD DATED 22.02.2013.`| |`Annexure III`|`TRUE COPY OF THE GOVERNMENT OIRDER`| ||`G.O.(MS)NO.25/2014//PD DATED 24.07.2013.`| |`Annexure IV`|`TRUE COPY OF THE RELEVANT PAGES OF THE`| ||`INSPECTION REPORT ALONG WITH COVERING LETTER`| ||`DATED 12.03.2020.`| |`Annexure V`|`TRUE COPY OF THE LETTER ISSUED BY THE ANERT`| ||`3RD RESPONDENT TO THE GOVERNMENT NUMBERED AS`| ||`780/HTM/15/ANERT DATED 06.09.2021.`| |`Annexure VI`|`TRUE COPY OF THE UNSTARRED QUESTION NO. 660`| ||`AND ANSWER DATED 05.10.2021 GIVEN BY THE`| ||`HONOURABLE MINISTER FOR ELECTRICITY ON THE`| ||`FLOOR OF THE 13TH LEGISLATIVE ASSEMBLY`| |`Annexure VII`|`A TRUE COPY OF THE RELEVANT PROVISIONS`| ||`GOVERNING THE POWER TO RELAX CSIR RULES FOR`| ||`THE PURPOSE OF PROMOTION ALONG WITH THE`| ||`AMENDMENT.`| |**`RESPONDENT ANNEXURES`**|| |`Annexure R1`|`TRUE COPY OF THE FORWARDING LETTER NO.`| ||`CA/IV/A/12-8607/310 DATED 12.03.2020 SENDING THE`| ||`INSPECTION REPORT BY AUDIT FOR THE PERIOD 2017-19`| ||`ISSUED BY THE SENIOR AUDIT OFFICER/CA IV TO THE`| ||`DIRECTOR, ANERT`| ``` RP NOs. 697 & 847 OF 2021 ``` ||`16`| |---|---| |`Annexure R2`|`TRUE COPY OF COMMUNICATION NO.ECA`| ||`IIA/12-8607/2017-19/14/59 DATED 24.06.2021 ISSUED`| ||`BY THE OFFICE OF THE PRINCIPAL ACCOUNTANT GENERAL`| ||`(AUDIT-II) KERALA TO THE DIRECTOR, ANERT.`| |`Annexure R3`|`TRUE COPY OF COMMUNICATION NO.ECA`| ||`IIA/12-8607/2017-19/21-22/44/36 DATED 08.12.2021`| ||`ISSUED BY THE OFFICE OF THE PRINCIPAL ACCOUNTANT`| ||`GENERAL (AUDIT-II) KERALA TO THE DIRECTOR, ANERT.`| |`Annexure R4`|`A TRUE COPY OF THE JUDGMENT DATED 17.05.2021 IN`| ||`W.P(C.) NO. 9622/2021 OF THE HON’BLE HIGH COURT`| |`Annexure R5`|`TRUE COPY OF THE NOTES FOR THE 14TH EXECUTIVE`| ||`COMMITTEE MEETING OF ANERT`| |`Annexure R6`|`TRUE COPY OF COMMUNICATION NO.5778/P.S2/2014/POWER`| ||`DATED 26.08.2015 ISSUED BY THE GOVERNMENT OF`| ||`KERALA, POWER DEPARTMENT`| |`Annexure R7`|`TRUE COPY OF AFFIDAVIT SUBMITTED BY FORMER`| ||`DIRECTOR, P.B. SUGHTHAKUMAR IN COMPLAINT NO.`| ||`510/2016 BEFORE THE KERALA LOK AYUKTA.`| |`Annexure R8`|`TRUE COPY OF COMMUNICATION NO. 1176/HRM/2012/ANERT`| ||`DATED 18.02.2015 ISSUED BY THE DIRECTOR, ANERT TO`| ||`THE SECRETARY, POWER DEPARTMENT.`|