RP No. 854 of 2017 (G) in WP(C) No. 27575 of 2006

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V. THURSDAY, THE 30TH DAY OF NOVEMBER 2017/9TH AGRAHAYANA, 1939 ## **RP.No. 854 of 2017 (G) IN WP(C).27575/2006 --------------------------------------------** AGAINST THE JUDGMENT IN WP(C) 27575/2006 of HIGH COURT OF KERALA DATED 21-08-2017 REVIEW PETITIONER(S)/PETITIONERS: -------------------------------- ## 1. AJITHAKUMARI M. AGED 32 YEARS, PAZHAYATHIL KIZHAKATHIL, MEEYANNOOR, KOLLAM. 2. SREEJI P.L. AGED 35 YEARS, EAST PAZHAYATTIL, MEEYANNOOR P.O., KOLLAM. 3. GOPAKUMAR N.R. AGED 31 YEARS, N.R.BHAVAN, AYOOR P.O., KOLLAM. 4. MANJITH.V., AGED 30 YEARS, RATHEESH BHAVAN, MALYALAPUZHA, PATHANAMTHITTA DISTRICT. ## 5. SAKTHI SASI AGED 23 YEARS, KURISSERY PUTHEN VEEDU, PANMANA, PUTHENCHANTHA. 6. SIJU.S., AGED 24 YEARS,S.M.BHAVAN, PALACE ROAD, KAYAMKULAM. 7. RAJESH.S., AGED 35 YEARS,R.L.C. HOUSE, KADAKKAVOOR, THIRUVANANTHAPURAM. 8. VISHNU.H., AGED 27 YEARS, PRIYA HOUSE, THIRUNELLOOR P.O., CHERTHALA. 9. NITHIN P.R., AGED 26 YEARS, ASWATHY, NORTH ARYAD P.O., ALAPPUZHA. 10. PRAVEEN J.R. AGED 30 YEARS, S/O.RADHAKRISHNA PANICKER, JYOTHISH, ATHIYANNOOR, ARALUMMOODU, THIRUVANANTHAPURAM. BY ADVS.SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHI SMT.REENA THOMAS ## **RP.No. 854 of 2017** RESPONDENT(S)/RESPONDENTS IN W.P.: ---------------------------------- 1. THE TRAVANCORE DEVASWOM REPRESENTED BY ITS SECRETARY, DEVASWOM BOARD BUILDING, KURAVANKONAM, TRIVANDRUM - 695504. 2. SAJIMON R. "SREEHARI", T.C.22/393(2), KONCHIRAVILA, MANACVAUD, THIRUVANANTHAPURAM - 695504. 3. UDAYAN B. MANKATHU MELATHIL, KUNDARA AMIKAPOIKA, KOLLAM - 691306. 4. LEKHA K. ELLALIKIZHAKKATHIL, CHAVARA, PANMANA P.O., NOW AT S.V.MARKET P.O., KARUNAGAPALLY, KOLLAM - 690573. R1 BY SRI.T.K.AJITH KUMAR, SC, TDB R2 TO R4 BY SRI.M.GOPIKRISHNAN NAMBIAR THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 06-11-2017, THE COURT ON 30.11.2017 PASSED THE FOLLOWING: ## **P.R. RAMACHANDRA MENON** ## **& SHIRCY V, JJ.** .............................................................................. ## **R.P.No.854 of 2017 IN W.P.(C)No.27575 OF 2006** ......................................................................... **Dated this the 30[th] November, 2017** ## **O R D E R** ## **P.R. Ramachandra Menon, J.** W.P(C)No.27575 of 2006 was finally heard along with the connected W.P.(C)No.35869 of 2009 and both the cases were dismissed as per judgment dated 21.08.2017, holding that the writ petitions were devoid of any merit. 2. The issue involved in the writ petitions was mainly with regard to the filling up the post of LDC-cum-Sub Group Officer Gr.II in the Guruvayoor Devaswom, pursuant to the notification inviting applications issued in the year 2002 and 2005. The proceedings of selection could not be finalised by the Devaswom for various reasons and in particular, by virtue of introduction of Section 29A to the Travancore Cochin Hindu Religious Institutions Act, 1950 (TCHRI Act in short), whereby the field of selection was left to the PSC, which was brought into force w.e.f. 05.02.2007. 3. When the writ petitions came up for final hearing, the **R.P.No.854 of 2017** **2** Bench observed that the subsequent developments could not be ignored, causing a change in the scenario, by virtue of introduction of Sec.29A as part of the statute and accordingly, it was held that the petitioners were not entitled to have any relief to have them appointed pursuant to the notifications issued earlier in 2002/2005. The above verdict was challenged before the Apex Court and the matter was pending there . Some interim orders were also passed in the meanwhile. Later, when the matter was finally heard on 29.03.2017, it was submitted by the petitioners before the Apex Court that, things had undergone a radical change by virtue of deletion of Section 29A from the statute book w.e.f. 10.11.2012. It was taking note of the said fact, that the Apex Court observed that, though the Apex Court agreed with the finding rendered by the DB of this Court, that the subsequent development by virtue of introduction of Section 29A was also a matter which could not be ignored; by virtue of the subsequent deletion of the said provision from the statute book, the matter required to be re-considered. It was accordingly, that the matter was remanded for fresh consideration as above. 4. Both the above writ petitions were heard elaborately and **R.P.No.854 of 2017** **3** the sequence of events were taken note of, apart from the legal provisions and such other aspects. It was observed by this Court that , Section 29A which was deleted from the Statute Book in the year 2012 (i.e. w.e.f. 10.11.2012) could not have any effect, in so far as, by the time the final verdict was passed by the Apex Court, remanding the matter, the field of selection was taken over and left with the 'Kerala Devaswom Recruitment Board' by virtue of a new enactment, viz. Kerala Devaswom Recruitment Board Act **(Act 16 of 2015).** The said Act came into force w.e.f. 01.03.2014 and as such, the position remained to be the same, i.e., changing the field of selection to be dealt with by the Devaswom Recruitment Board, in place of the PSC. This vital fact was stated as not brought to the notice of the Apex Court (para 15 of the Judgment) when the matter was finally heard and decided by the Apex Court on 29.03.2017. It was in the said circumstance, that further observations were made, holding that there was no merit in the writ petitions as there was no material change in the circumstances, with regard to the legal provision. It was accordingly, that both the writ petitions were dismissed as per the common verdict mentioned above. **R.P.No.854 of 2017** **4** 5. The review petitioners (writ petitioners in W.P(C) No..27575 of 2006) are before this Court contending that the observation made by this Court in 'paragraph 15' of the judgment that the vital fact of constituting Kerala Devaswom Recruitment Board as per Act No.16 of 2015 was omitted to be brought to the notice of the Supreme Court is a mistake, pointing out that the petitioners had already brought it to the notice of the Supreme Court by filing a separate petition. It is also pointed out that the Apex Court had taken note of the said position as evident from Annexure A1 order and this being the position, the verdict passed by this Court is sought to be recalled and re-considered. It is also pointed out that the observation made by the Apex Court, in the final order dated 29.03.2017 in SLP(C).No.10719 of 2012, to the effect that the Apex Court had 'agreed with' the view taken by the Division Bench of this Court, does not conclusively declares the law involved in the case. It is further pointed out in 'Ground G', that the respondents 2 to 4 have been wrongly impleaded and the cause title is liable to be corrected by deleting them from the party array and instead, another applicant by name Sandhya, who has got herself impleaded as per I.A.No. **R.P.No.854 of 2017** **5** 8636 of 2017 in the above writ petition has to be shown as additional respondent. 6. At the very outset it is to be noted that the idea and understanding of the review petitioners as to the scope of the observation made by this Court in 'paragraph 15' of the judgment sought to be reviewed is thoroughly wrong and misconceived. The said paragraph is reproduced below for convenience of reference.: _“15. On dismissal of the writ petitions, the petitioners moved the Apex Court by filing SLP No.9306/2012, where in Ext.P34 interim order was passed on 30.8.2013, holding that confirmation of the persons already appointed and/or those who may be appointed hereinafter shall remain subject to the adjudication of the Special Leave Petition. When the matter came up for further consideration before the Apex Court on 29.3.2017, the Civil Appeals were heard, when it was brought to the notice of the Court, that the adverse provision cited against the petitioner (Section 29A of the Act) had already been deleted from the statute book and hence the matter had to be reconsidered. It was accordingly, that the Supreme Court set aside the verdict passed by this Court and remanded the matter for fresh consideration in accordance with law. The submission of the learned Standing Counsel for the Devaswom is that, though Section 29A was subsequently deleted from the_ **6** ## **R.P.No.854 of 2017** _statute book in the year 2012, by the time the appeals pending before the Supreme Court were finalised as per the order passed on 29.3.2017, the field of selection and appointment in all the Devaswom Boards in Kerala had already been brought within the purview of the Kerala Devaswom Board Recruitment Board, which is a Statutory Body created under a specific enactment as borne by Exts.P30, P32 and P33. This vital fact was unfortunately omitted to be brought to the notice of the Supreme Court while passing the order dated 29.3.2017 remanding the matter to be considered afresh. By virtue of the said position, the net result is the same and the Devaswom Board is not in a position to effect any appointment, submits the learned counsel. .”_ 7. It is relevant to note that this Court has mentioned in paragraph 17, the circumstances under which the Apex Court had passed the order on 29.03.2017 and the entire order as such was extracted therein. It was after referring to the same, that this Court held that opinion was already expressed by the Apex Court, agreeing with the view reflected from the judgment dated 14.11.2011 in the writ petition, that the statutory provision which may have come into force before appointment, could not be ignored for making an appointment. It was only by virtue of the fact that the relevant provision (Section 29A) was **7** ## **R.P.No.854 of 2017** subsequently deleted (from 10.11.2012) as put forth before the Supreme Court, that the matter required to be re-considered in accordance with law, thus ordering the remand. It was with reference to the above sequence of events, that this Court held in paragraph 18, that by the time the matter was finalised by the Apex Court ordering remand, another enactment for dealing with selection and appointment of staff of various Devaswoms in Kerala had been enacted by the State and it was accordingly, that **Act 16 of 2015** was introduced, in turn changing the field of selection to be dealt with by the Devaswom Recruitment Board, in place of the PSC, (which was similar to the position as per the earlier /deleted provision-Section 29A of the TCHRI Act). ## This Court specifically mentioned as follows: _“In other words, though Section 29A is no more in the statute book, the bar in conducting the selection and appointment by the Devaswom is seen reintroduced by virtue of such separate enactment and it now stands vested with the Recruitment Board with effect from 1.3.2014 . In the said circumstances, none of the judicial precedents cited and sought to be relied on from the part of the petitioners comes to their rescue.”_ ## 8. The observation made by this Court in paragraph 15 that “this vital fact” was unfortunately omitted to be brought to the **R.P.No.854 of 2017** **8** notice of the Apex Court while passing the order dated. 29.03.2017, (remanding the matter to be considered by this Court) was with reference to the consequence, pursuant to the enactment of Act 16 of 2015 , constituting the Kerala Devaswom Recruitment Board (subsequent to deletion of Section 29A from the TCHRI Act). It may be true that the petitioner had filed an affidavit/IA before the Supreme Court referring to the Kerala Devaswom Recruitment Board Act and the said position was taken note of by the Supreme Court in Annexure A1. But Annexure A1 is dated 24.11.2015. The matter was finally heard by the Supreme Court only on 29.03.2017. The order passed by the Apex Court as such has been extracted in paragraph 16 of our judgment, which only mentions about the submission made on behalf of the appellants, that Section 29A of the TCHRI Act had, by then, been deleted and as such, the matter required to be considered afresh. Nothing was mentioned from the part of the appellants/petitioners as to the consequence resulted because of the new enactment (Act 16 of 2015). Eventhough Section 29A of the TCHRI Act was deleted w.e.f. 10.11.2012, by virtue of the new enactment, the position remained to be the **R.P.No.854 of 2017** **9** same and the Devaswom was not in a position to effect selection and appointment of its own; as the matter had to be left to the Devaswom Recruitment Board, which job was to be done earlier by the PSC. The commencement of the new statute, as stated in the affidavit filed by the petitioners and taken note of by the Apex Court in Annenxure A1 order, was not brought up/adverted to while passing the final verdict on 29.03.2017, but for which the matter would have been finalised by the Apex Court then and there, referring to the net result, as the outcome could not have tilted the balance in any manner. In the above circumstance, we find that there is absolutely 'no error apparent on the face of the record' to invoke the power of review. 9. It has been alerted by the Apex Court on many an occasion, that the scope of review shall never be misunderstood as a substitute for appeal, as held in _**Meera Bhanja vs. Nirmala Kumari Choudhuri** (_ **AIR 1995 SC 455)** . We also find support from the rulings of the Apex court in _**M/s.Thungabhadra Industries Ltd. vs. Govt. of Andhra Pradesh rep. By Deputy Commissioner , Commercial Taxes, Anantapur**_ [ **AIR 1964 SC 1372],** _**Parsion Devi vs. Sumitri Devi**_ **[(1997) 8 SCC 715]** and _**N. Anantha**_ **10** ## **R.P.No.854 of 2017** ## _**Reddy vs. Anshu Kathuria**_ [ **(2013)15 SCC 534]** . RP. is devoid of any merit. It is dismissed accordingly. **P.R. RAMACHANDRA MENON, JUDGE** **JUDGE** lk