R.P. No. 68/2020 & batch

R.P. No. 68/2020 & batch : 1 : IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY, THE 6[TH] DAY OF AUGUST 2021 / 15TH SRAVANA, 1943 RP NO. 68 OF 2020 AGAINST THE ORDER/JUDGMENT IN WP(C) 17441/2011 OF HIGH COURT OF KERALA ## REVIEW PETITIONER/PERSON AGGRIEVED: BINDU.S AGED 47 YEARS UP SCHOOL ASSISTANT, KPM HIGH SCHOOL POOTHOTA, ERNAKULAM DISTRICT – 682 301. BY ADVS. GIRIJA K GOPAL K.N.VIJY ## RESPONDENTS/PETITIONER IN W.P.(C) & RESPONDENTS 1 TO 5: - 1 SREEDEVI BALAKRISHNAN AGED 39 YEARS - W/O.DEEPU S.NAIR, KPM HIGHER SECONDARY SCHOOL, POOTHOTTA, ERNAKULAM DISTRICT – 682 037. - 2 THE STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEXE, THIRUVANANTHAPURAM-695001. - 3 THE DIRECTOR OF PUBLIC INSTRUCTION, (NOW DIRECTOR OF GENERAL EDUCATION), JAGATHY, THIRUVANANTHAPURAM-682 014. - 4 THE DISTRICT EDUCATIONAL OFFICER, ERNAKULAM-682 014. - 5 THE MANAGER, KPM HIGHER SECONDARY SCHOOL POOTHOTTA, ERNAKULAM DISTRICT-682 037. - 6 PONNU JAYAPRAKASH, UPSA, KPMHS, POOTHOTTA – 682 037. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 30.07.2021, ALONG WITH R.P. NOS. 553 & 554 OF 2020 & W.P.(C) NO. 19132/2012, THE COURT ON 06.08.2021 DELIVERED THE FOLLOWING: R.P. No. 68/2020 & batch : 2 : ## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY, THE 6[TH] DAY OF AUGUST 2021 / 15TH SRAVANA, 1943 ## RP NO. 553 OF 2020 AGAINST THE JUDGMENT DATED 04.11.2019 IN WP(C) 595/2011 OF HIGH COURT ## OF KERALA ## REVIEW PETITIONER/PERSON AGGRIEVED: BINDU.S AGED 47 YEARS UP SCHOOL ASSISTANT, KPM HIGH SCHOOL POOTHOTTA, ERNAKULAM DISTRICT - 682 301. BY ADVS. GIRIJA K GOPAL SMT.K.N.VIGY ## RESPONDENTS/PETITIONER IN W.P.(C) & RESPONDENTS 1 TO 4: - 1 SREEDEVI BALAKRISHNAN AGED 45 YEARS, W/O.DEEPU S.NAIR, KPM HIGHER SECONDARY SCHOOL, POOTHOTTA, ERNAKULAM DISTRICT. - 2 THE STATE OF KERALA, REP BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. - 3 THE DISTRICT EDUCATIONAL OFFICER, ERNAKULAM - 682 011. - 4 THE MANAGER, KSHETHRA PRAVESANA MEMORIAL HIGHER SECONDARY SCHOOL, POOTHOTTA, ERNAKULAM DISTRICT - 682 307. - 5 SMT.P.R.SREEJA, UPPER PRIMARY SCHOOL, ASSISTANT (NOT APPROVED), KPM HIGHER SECONDARY SCHOOL, POOTHOTTA, ERNKULAM DISTRICT - 682 307 R.P. No. 68/2020 & batch : 3 : R2 & R3 BY SRI. SURIN GEORGE IPE SR. GOVERNMENT PLEADER R4 BY SRI. N.N.SUGUNAPALN(SR) SRI. NAVANEETH D PAI THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 30.07.2021, ALONG WITH R.P. NO. 68/2020 & BATCH, THE COURT ON 06.08.2021 DELIVERED THE FOLLOWING: R.P. No. 68/2020 & batch : 4 : ## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY, THE 6[TH] DAY OF AUGUST 2021 / 15TH SRAVANA, 1943 RP NO. 554 OF 2020 AGAINST THE JUDGMENT DATED 04.11.2019 IN WP(C) 13278/2012 OF HIGH COURT ## OF KERALA ## REVIEW PETITIONER/PERSON AGGRIEVED: BINDU S. AGED 47 YEARS UP SCHOOL ASSISTANT, KPM HIGH SCHOOL POOTHOTA, ERNAKULAM DISTRICT - 682 301. BY ADVS. GIRIJA K GOPAL SMT.K.N.VIGY ## RESPONDENTS/PETITIONER IN W.P.(C) & RESPONDENTS 1 TO 6: - 1 THE MANAGER KSHETHRA PRAVESANA MEMORIAL, VOCATIONAL HIGHER, SECONDARY SCHOOL, POOTHOTTA, ERNAKULAM DISTRICT - 682 307. - 2 THE DISTRICT EDUCATIONAL OFFICER ERNAKULAM - 682 030. - 3 THE DEPUTY DIRECTOR OF EDUCATION ERNAKULAM - 682 030. - 4 THE DIRECTOR OF PUBLIC INSTRUCTION (NOW DIRECTOR OF GENERAL EDUCATION), THIRUVANANTHAPURAM - 695 001. - 5 THE SECRETARY TO GOVERNMENT GENERAL EDUCATION (N) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. - 6 THE STATE OF KERALA ## R.P. No. 68/2020 & batch : 5 : REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 7 SREEDEVI BALAKRISHNAN AGED 45 YEARS W/O. DEEPU S. NAIR, KPM HIGHER SECONDARY SCHOOL, POOTHOTTA P. O., ERNAKULAM DISTRICT - 682 307. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 30.07.2021, ALONG WITH R.P. NO. 68/2020 & BATCH, THE COURT ON 06.08.2021 DELIVERED THE FOLLOWING: R.P. No. 68/2020 & batch : 6 : IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY, THE 6[TH] DAY OF AUGUST 2021 / 15TH SRAVANA, 1943 ## WP(C) NO. 19132 OF 2012 (N) ## PETITIONER: BINDU S. UPPER PRIMARY SCHOOL ASSISTANT, K.P.M.HIGHER SECONDARY SCHOOL, POOTHOTTA, ERNAKULAM-682 307. BY ADV SMT.GIRIJA K GOPAL ## RESPONDENT/S: - 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAM-695 001. - 2 DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM-695 014. - 3 DISTRICT EDUCATIONAL OFFICER ERNAKULAM-682 011. - 4 MANAGER KPM HIGHER SECONDARY SCHOOL, POOTHOTTA, ERNAKULAM-682 307. - 5 SREEDEVI BALAKRISHNAN PEON, KPM HIGHER SECONDARY SCHOOL, POOTHOTTA, ERNAKULAM-682 307. BY ADVS. SRI.K.E.HAMZA SRI.V.A.MUHAMMED R4 BY SRI.N.N.SUGUNAPALAN SR. SRI. NAVANEETH D PAI SRI. SURIN GEORGE IPE, SR. GOVERNMENT PLEADER SRI.S.SUJIN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.07.2021, ALONG WITH R.P. NO. 68/2020 & BATCH, THE COURT ON 06.08.2021 DELIVERED THE FOLLOWING: R.P. No. 68/2020 & batch : 7 : ## **Dated this the 6[th] day of August, 2021.** ## **JUDGMENT** [R.P. Nos. 68, 553 & 554 of 2020 and W.P.(C) No. 19132 of 2012) The review petitions are filed seeking to review the common judgment in W.P.(C) Nos. 17441 of 2011, 595 of 2011 and 13278/2012 dated 04.11.2019, whereby this Court allowed W.P.(C) No. 595 of 2011 upholding the Government order dated 03.04.2012, which affirmed the stand adopted by the District Educational Officer dated 13.10.2020, in which it was categorically found that the first respondent in W.P.(C) No. 17441 of 2011 and respondent in the other writ petitions, namely Smt. Sreedevi Balakrishnan, secured leave for medical purposes and pursued B.A degree studies and thereafter, Bed course by availing medical leave; however, the extreme punishment of termination from service was not justified. 2. To put it otherwise, when the management of the school, namely Kshetra Pravesana Memorial Vocational Higher Secondary School conducted enquiry against Sreedevi Balakrishnan and dismissed her from service, the District Educational Officer in an appeal by the aggrieved declined to impose a major penalty of removal of Sreedevi Balakrishnan. Thereupon, Sreedevi Balakrishnan raised a claim for approval of appointment and in the meanwhile, the appeal filed by the R.P. No. 68/2020 & batch : 8 : Manager before the Government was dismissed affirming the order passed by the District Educational Officer. 3. In one of the writ petitions namely W.P.(C) No. 17441 of 2011, the Review Petitioner namely Smt. Bindu was the additional 6[th] respondent, even though she was not a party in the other writ petitions. But, when the writ petitions in question were heard commonly, though W.P.(C) No. 19132 of 2012 filed by the Review Petitioner Smt. Bindu S was pending before this Court, the same was not brought to the notice of this Court in spite of the fact that the counsel appearing for Bindu S in W.P.(C) No. 19132 of 2012 and W.P. (C) No. 17441 of 2011 was one and the same. The parties were heard and the writ petitions were disposed of directing the Manager of the School to forward appropriate proposal to the educational authority concerned for approving appointment of Sreedevi Balakrishnan from 01.06.2006 at the earliest and at any rate within a month from the date of receipt of a copy of this judgment. 4. The educational authority was further directed to issue notice to all the affected persons and the Manager of the school and to take a decision in accordance with law at the earliest and at any rate within a further period of two months from the date of receipt of the proposal from the Manager. The other writ petitions were disposed of consequently. R.P. No. 68/2020 & batch : 9 : 5. I am informed by the learned counsel appearing for the Review Petitioner as well as the learned Senior Counsel appearing for the school in question that, pursuant to the direction issued by this Court, the Manager has forwarded the proposal and the issue has attained finality. Therefore, it can be seen that the common judgment in question was acted upon by the statutory educational authority, and in that view of the matter, the sole question emerges for consideration is whether the review petitions are maintainable under law. 6. I have heard the learned counsel for the review petitioner Smt. Girija K. Gopal, learned Senior Government Pleader Sri. Surin George Ipe and senior advocate Sri. N. N. Sugunapalan for the Management. 7. It is well settled that a review petition is maintainable under law only if there is an error apparent on the face of the record or such other legal infirmities so as to justify a review. The judgment was rendered by this Court upholding the Government Order specified above, by assigning various reasons, and has arrived at the conclusions on the basis of the facts available on record. In fact, this Court has found that the State Government has verified and analysed the foundational issues and has decided to affirm the order of the District Educational Officer. It was also found that the District Educational Officer as well as the State Government arrived at the R.P. No. 68/2020 & batch : 10 : conclusions holding that in the facts and circumstances of the case, major penalty of dismissal from service cannot be inflicted on Sreedevi Balakrishnan, in spite of the finding that the basic degree as well as B. Ed degree were secured by availing leave under various heads. However, the authorities were of the opinion that, that by itself cannot be a ground for imposing major punishment. 8. Whatever that be, once the directions in the judgment were acted upon, I do not think a review petition can be maintained under law, in view of the subsequent developments and events. This I say because, during the course of arguments, it was admitted by the learned senior counsel for the management that the directions in the judgment were acted upon and the appointment of Smt. Sreedevi Balakrishnan was granted approval. If at all there was any ground for review, that was vanished consequent to the action of the authority pursuant to the directions contained in the judgment, which, in fact, espouses a fresh cause of action to the aggrieved, and deprives the litigating parties from pursuing any further action on the basis of the original cause of action. The said question was considered by the Apex Court in _**State of Nagaland and another v. Toulvi Kibami and another**_ [2003(8) SCC 671] **“1.** In the State of Nagaland, the promotion of Superintendent Engineer to the post of Additional Chief Engineer in the Department R.P. No. 68/2020 & batch : 11 : of Public Health and Engineering is governed by the service rules known as the Nagaland Engineering Service Rules, 1977 (Classes I and II) (hereinafter referred to as “the Rules”). Respondent 2 in CA No. 2533 of 1998 (and the appellant in CA No. 2536 of 1998) is a diploma-holder and at the relevant time was working as Officiating Superintendent Engineer. On 26-3-1991, the Government of Nagaland promoted Respondent 2 as Additional Chief Engineer. This promotion was challenged by Respondent 1 who is a degreeholder by means of a petition under Article 226 of the Constitution on the ground that Respondent 2 was not eligible for being promoted to the post of Additional Chief Engineer as the said post is to be filled up 100 per cent from amongst the degree-holders. This contention of Respondent 1 was accepted by the learned Single Judge of the High Court. Consequently, the promotion of Respondent 2 was set aside. Aggrieved, the State of Nagaland preferred a letters patent appeal which was allowed and the order and judgment of the learned Single Judge was set aside. The Division Bench while allowing the appeal directed the State Government to decide whether the diploma-holders could also be promoted to the post of Additional Chief Engineer under the relevant Rules on the basis of they having rendered meritorious service. It is not disputed that consequent upon the direction of the High Court, the Government took a decision in the year 1997 whereby the Government appropriately amended the relevant Rules on the basis of they having rendered meritorious service. It is also not disputed that consequent upon the direction of the High Court, the Government took a decision in the year 1997 whereby the R.P. No. 68/2020 & batch ## : 12 : Government appropriately amended the relevant Rules and brought them in line with the original approved Rules so as to include the reference to eligibility of cases of exceptionally meritorious persons who are diploma-holders for promotion to the post of Additional Chief Engineer with retrospective effect i.e. from 12-9-1996. In that view of the matter, Respondent 2 was promoted to the post of Additional Chief Engineer. In between time, Respondent 1 filed an application before the Division Bench for review of the order and judgment dated 4-9-1995. The Division Bench allowed the review petition and dismissed the appeal. It is against the said judgment and order of the High Court dated 8-1-1998, the appellants are in appeal before us. **2.** Having heard learned counsel for the parties, we are of the view that in view of the subsequent events that had taken place consequent upon the judgment of the Division Bench, the review petition filed by Respondent 1 was not maintainable. In fact the judgment of the Letters Patent Bench was acted upon and it stood exhausted and the review petition was futile. Under such circumstances, the review petition ought not to have been entertained and decided on merits. **3.** For the aforesaid reasons, we set aside the order and judgment under challenge. The appeals are allowed. However, it will be open to Respondent 1 to challenge the promotion of Respondent 2 afresh by a separate petition under Article 226 of the Constitution of India, if he is so advised. In case such a petition is filed, it shall be entertained and decided on merits. We leave all questions of law open to be decided in that case.” R.P. No. 68/2020 & batch : 13 : 9. It is also clear from the materials available on record that none of the parties have preferred appeal against the judgment in question. Yet another ground put forth by the review petitioner is that even though W.P.(C) No. 19132 of 2012 filed by the review petitioner was pending consideration at the time of hearing of the other writ petitions, the same was not brought to the notice of this Court. But, in my considered opinion, even though the said writ petition filed by the Review Petitioner was not brought to the notice of this Court, the very same counsel then appeared for the review petitioner/6th respondent in W.P.(C) No. 17441 of 2011, argued the matter opposing the impugned Govt order. 10. Therefore, mere non consideration of the writ petition in question along with other connected matters by itself may not be a ground for review of the judgment. So also, the said writ petition was filed challenging the very same order of the District Educational Officer dated 23.02.2011 upheld by the State Government, insofar as it directed to keep one vacant post of UPSA that arose during 2006 and 2007 and for other consequential reliefs. These aspects and the pendency of the other writ petitions are clearly discernible from the pleadings put forth in the writ petition considered along with the review petitions herein. It is also quite clear and evident that the cause R.P. No. 68/2020 & batch : 14 : of action in all the matters, including the writ petition herein, are one and the same and therefore, there is no scope for consideration of the contentions raised in the writ petition independently and detached from the contentions raised in the review petitions . 11. Cogitating the matter so, in my considered opinion, the reliefs sought for by the review petitioner in the said writ petition also no longer survives to be adjudicated, consequent to the disposal of the other writ petitions under the very same circumstances and cause of action by a common judgment. Therefore, the writ petition has also no merits, especially in view of the facts and circumstances delineated above, and accordingly, the review petitioner is not entitled to get any of the reliefs as are sought for in the writ petition also. Accordingly, the writ petition and the review petitions are dismissed. **SHAJI P. CHALY, JUDGE.** _Rv_ R.P. No. 68/2020 & batch : 15 : ## **APPENDIX** ## PETITIONER'S EXHIBITS: EXT. P1: TRUE COPY OF APPOINTMENT ORDER DATED 01.08.2006. EXT.P2: TRUE COPY OF ORDER NO. B5-50/11/K. DIS DATED 23.02.2011 PASSED BY THE 3RD RESPONDENT. EXT.P3: TRUE COPY OF APPOINTMENT ORDER DATED 01.08.2006 AS APPROVED. EXT.P4: TRUE COPY OF REVISION PETITION DATED 04.08.2011 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P5: TRUE COPY OF ORDER NO. EC(3) 17916/2011/DPI DATED 28.05.2011 PASSED BY THE SECOND RESPONDENT. EXT.P6: TRUE COPY OF LETETR NO. 75746/N2/11/GEN.EDN DATED 03.04.2012 OF 1ST RESPONDENT TO THE 4TH RESPONDENT. ## RESPONDENTS' EXHIBITS: NIL /True Copy/ rv PS To Judge.