High Court of KeralaDivision Bench2021-07-27Review petition dismissed; no change to the Tri...

R.P. No.455 of 2021 in OP(KAT) No.62 of 2017

Case / Petition Number:R.P. No.455 of 2021 in OP(KAT) No.62 of 2017

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Ashok Menon
Judgment Date: 2021-07-27
Court Decision / Holding: Review petition dismissed; the order of the Tribunal stands and the respondent-applicant’s eligibility as found by the Tribunal remains unchanged.
Final Disposition: Review petition dismissed; no change to the Tribunal’s order and the respondent-applicant’s eligibility stands as per the Tribunal’s finding.

Parties to the Case

Appellants / Petitioners

SARITHA M.A.
LAKSHMI PRIYA P.RR.
ANUSHA THANKACHAN
NISHA ANTONY
ATHIRA A.
MISRIYA C.S.
SRUTHI P.K.
ALFIYA P.A.
ANAGHA SWAPNA A.
ALEENA NIBIN
ARATHY P. KRISHNADAS
SWAPNA PRASAD
SHAHIBAN M.A.
SUBY P.
ASWATHY V.A.
RAJISHA RAMAKRISHNAN
SREEJA P.
ROSE MARIA DEVASIA
ASMA K.
NEENU SURESH
CHANDHINI BAIJU
MAYA P.
PRASEENA REJEESH
KALA V.P.
PRIYAVATHY T.
SOUMYA BINU
SRUTHI T. THANKACHAN
PRAVEENA VINOD
VARSHA
REMYA K.R.
JANCY R.
ARYAMOL K.S.
BINDU K.S.
ASHAMOL A.S.
CHIPPY M. MOHANAN
ASHA B.

Respondents

Elizabeth Thomas, W/o. Byju Varghese, residing at Majamkudy House, Mudakkuzha P.O., Ernakulam, Kerala-683546
KERALA PUBLIC SERVICE COMMISSION, represented by the Secretary, Pattom P.O., Thiruvananthapuram-695004
The District Officer, Kerala Public Service Commission, Karshaka Road, Kochi, Kerala-682016

Legal Representation & Advocates

Counsels for Petitioners

• K.P. Pradeep
• Hareesh M.R.
• T.T. Biju
• T.Thasmi
• M.J. Anoopa

Case Synopsis & Summary

This is a review petition filed under OP(KAT) No.62 of 2017, challenging the Tribunal’s order that allowed a respondent-applicant to be treated as an eligible candidate for the post of Junior Public Health Nurse Grade II in a Kerala Public Service Commission selection. The respondent-applicant possessed a Diploma in General Nursing, while the notification required only an Auxiliary Nurse Midwifery Certificate under the Special Rules. The Tribunal had allowed the claim, and the High Court, in the order under review, approved that finding, citing Jyoti K.K. and Others v. Kerala Public Service Commission and Others (2010) 15 SCC 596, which involved a higher qualification being found eligible for a post with a lower prescribed qualification. The grounds urged in the review include that the qualification could not diverge from the Special Rules and that the Division Bench’s reliance on past jurisprudence on equivalency warranted scrutiny; they also invoked Zonal Manager, Bank of India v. Aarya K.Babu (2019) 8 SCC 587 to contend against equivalency. The petitioners argued potential harm from reversing the Tribunal’s decision, including effects on appointments already made, and contended for reconsideration in the Tribunal. The Court rejected the review petition, holding that no rehearing in a review petition is warranted, aligning with the principle in State of WB v. Kemal Sengupta (2008) 8 SCC 612, and upheld the Tribunal’s order without altering the original finding.

Legal Doctrines & Maxims

Merger of Tribunal order with High Court order
Doctrine of finality of review petitions

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants argued that the prescribed technical qualification under the Special Rules could not be overridden by a higher qualification held by the respondent-applicant. They contended that the Division Bench erred in treating a Diploma in General Nursing as eligible for a post where only an Auxiliary Nurse Midwifery Certificate was specified, and that granting equivalence would undermine the rule-based selection under the Special Rules. They urged that any relaxation requires clear statutory or policy basis and that the remedy for similarly situated persons is to approach the Tribunal.

Contentions of Respondents

The respondents contended that there is no real error in the Tribunal’s approach and that the Division Bench relied on established jurisprudence to permit consideration of a higher qualification in a case where a lower qualification was prescribed. They argued against unilateral re-opening of the matter by a review petition, highlighted the potential disruption to appointments, and emphasized that the question of equivalency was not actually established or granted in the present case. They relied on the principle that review petitions should not substitute for the original remedy and cited precedents to support non-entertainment of rehearings.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Jyoti K.K. and Others v. Kerala Public Service Commission and Others	(2010) 15 SCC 596	Positive	Court approved the Tribunal’s finding and relied on the judgment in Jyoti K.K. to validate treating a higher qualification as eligible in the post-qualification context.
Zonal Manager, Bank of India v. Aarya K.Babu	(2019) 8 SCC 587	Distinguished	The judgment notes that the case deprecated equity in equivalency; however, the present bench distinguishes it since no actual equivalency was granted in this matter.
Haris K.M. v. Jahfar K.	(2020) 5 KHC 123 (FB)	Mentioned Only	Referenced by petitioners in support of a review remedy, but not adopted as a basis for the Court’s decision.
State of West Bengal v. Kemal Sengupta	(2008) 8 SCC 612	Positive	Used to support the proposition that rehearing in a review petition should be unavailable; contributes to the dismissal of the review petition.
State of WB v. Kemal Sengupta	(2008) 8 SCC 612	Positive	(duplicate entry for clarity)

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against R.P. No.455 of 2021 in OP(KAT) No.62 of 2017 and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 27[TH] DAY OF JULY 2021 / 5TH SRAVANA, 1943** **R.P.NO.455 OF 2021** **AGAINST THE JUDGMENT DATED 04.06.2019 IN OP(KAT) NO.62/2017 OF HIGH COURT OF KERALA, ERNAKULAM** ## **PETITIONERS/3RD PARTY:** - **1 SARITHA M.A., AGED 36 YEARS W/O. NELSON, THAIPPARAMBIL HOUSE, KAITHARAM P.O., NORTH PARAVOOR, ERNAKULAM-683519.** - **2 LAKSHMI PRIYA P.RR., AGED 22, D/O. RAJAN P.R. PARACHALIL HOUSE, MADAVOOR P.O., MUVATTUPUZHA, ERNAKULAM-686669.** - **3 ANUSHA THANKACHAN, AGED 28, D/O. THANKACHAN, MANNAMKUZHIL HOUSE, EDAKATTUVAYAL P.O., ARAKUNNAM, ERNAKULAM-682313.** - **4 NISHA ANTONY, AGED 26, D/O. ANTONY, SHEEEJA BHAVANAM, KODUVILA P.O., EAST KALLADA, KOLLAM-691507.** - **5 ATHIRA A., AGED 25,D/O. AJITH KUMAR, ASWATHY BHAVAN, CHEPRA P.O., VILANGARA, KOTTARAKKARA, KOLLAM-691520.** - **6 MISRIYA C.S., AGED 20, D/O. SHAHUL HAMEED, CHINGANATH HOUSE, THIRUVATHIRA P.O., CHAVAKKAD, THRISSUR-680516.** - **7 SRUTHI P.K.,** - **AGED 23, D/O. KUMARAN P.V., PUTHETHU HOUSE, KOOVALLOOR P.O., VELLARAMATTOM, ERNAKULAM-686671.** - **8 ALFIYA P.A., AGED 23, D.O. ALI, PUZHAKKARAYIL HOUSE, ENANALLOOR P.O., WET PUNNAMMATTOM, ERNAKULAM-686673.** - **9 ANAGHA SWAPNA A., AGED 21, D/O. ANIL KUMAR P.S., PULLIKKARAMBIL HOUSE, PIPELINE ROAD KANIYAMPUZHA EROOR, ERNAKULAM-682306.** **R.P. No.455 of 2021 In** **2** **OP(KAT) No.62 of 2017** - **10 ALEENA NIBIN,** - **AGED 21, W/O. NIBIN, MEKKAMTHURUTHIL HOUSE, VADAKKEKKARA P.O., MOOTHAKUNNAM, ERNAKULAM-683516.** - **11 ARATHY P. KRISHNADAS, AGED 26, D/O. KRISHNADAS, PULIYAMPILLIL HOUSE, MUDAKKUZHA P.O., MUDAKUZHA, ERNAKULAM-683546.** - **12 SWAPNA PRASAD, AGED 36, D/O. PRASAD, P.S. NIVAS KULAKODE, ANAVOOR P.O., THIRUVANANTHAPURAM -695124.** - **13 SHAHIBAN M.A., AGED 24,D/O. ABDU, MALIYEKKAL HOUSE, ERAVELI, FORTKOCHI P.O., ERNAKULAM-682001.** - **14 SUBY P., AGED 30, KIZHAKKECHALLIYIL HOUSE, VASANAM P.O., CHERTHALA-688555.** - **15 ASWATHY V.A., AGED 26, D/O. V.A. ASOKAN, VADAKKEKADU HOUSE, WEST MANAKKODAM PALLITHODU P.O., CHERTHALA-688540.** - **16 RAJISHA RAMAKRISHNAN, AGED 38, W/O. BIJU RAM, PULLARI HOUSE, RAYAMANGALAM P.O., ERNAKULAM-683546.** - **17 SREEJA P., AGED 43, W/O. DINESH, PULINKUNNI HOUSE, RAYAMANGALAM P.O., ERNAKULAM-683545.** - **18 ROSE MARIA DEVASIA,** - **AGED 21, D/O. DEVASIA P.C., CHOTTAKUNNEL HOUSE, KAPPADU P.O., KANJIRAPPALLY, KOTTAYAM-686508.** - **19 ASMA K., AGED 29, D/O. HAMEED ALI, KELOTH HOUSE, AVADUKKA P.O., PERUVANNAMUZHI, KOZHIKODEW-673528.** - **20 NEENU SURESH, AGED 25, D/O. SURESH, SALABHAM NIRKARTHIL, PATTANAKKAD P.O., CHERTHALA, ALAPPUZHA-688531.** - **21 CHANDHINI BAIJU, AGED 23, D/O. BAIJU, MATTATHIL CHIRAYIL HOUSE, KANNAMKARA P.O., THANNERMUKKOM, CHERTHALA, ALAPPUZHA-688527.** **R.P. No.455 of 2021 In OP(KAT) No.62 of 2017** **3** - **22 MAYA P., AGED 24, D/O. PANKAJAKSHAN, THARAYIL HOUSE, THANNERMUKKOM P.O., CHERTHALA, ALAPPUZHA-688527.** - **23 PRASEENA REJEESH, AGED 31, D/O. MANOHARAN, NIRAPPEL HOUSE, KONNATHADY P.O., KONNATHADY, IDUKKI-685563.** - **24 KALA V.P., AGED 42, D/O. V.K. PURUSHOTHAMAN, VALALPAKATHU HOUSE, UPPUTHARA P.O., UPPUTHARA, IDUKKI-685505.** - **25 PRIYAVATHY T., AGED 31, D/O. C.R. TITUS, RP HOUSE, POTTAYAMULA, PANACHAMOODU P.O., VELLAKADA, THIRUVANANTHAPURAM-695505.** - **26 SOUMYA BINU, AGED 31, D/O. MOHANAN, PUNCHAKUZHIYIL HOUSE, MANKUVA P.O., CHINNAR, IDUKKI-685604.** - **27 SRUTHI T. THANKACHAN, AGED 28, D/O. THANKACHAN, THEKKUPUKATH HOUSE, AMARAVATHY P.O., KUMILY, 2ND MILE, IDUKKI-685509.** - **28 PRAVEENA VINOD, AGED 32, D/O. PONNAPPAN, KAKKAKATTUCHI CHELACHUVADU P.O., KANJIKUZHI, IDUKKI-685606.** - **29 VARSHA, AGED 24, D/O.G.SATHYARAJAN, ANANDA BHAVAN, KOTTUVANKONAM, PARAVUR P.O., KOLLAM-691301.** - **30 REMYA K.R., AGED 34, D/O. RAJAPPAN, KUZHIPPARAMBIL VALIYAKANDAM, KUMILY P.O., IDUKKI-685509.** - **31 JANCY R., AGED 29, D/O. RAJU, PUTHENPURCKAL, CHENNAKARA P.O., PULLUMEDU, IDUKKI-685507.** - **32 ARYAMOL K.S., AGED 29, D/O. SUDHAKARAN K.R., PULICKAYIL HOUSE, PAINAVU P.O., THANNIKANDOM, IDUKKI-685603.** - **33 BINDU K.S., AGED 42, W/O. DILEEP, NELLIKKAKULATHIL HOUSE, KATTPPANA P.O., PARAKADAVU, IDUKKI-685508.** - **34 ASHAMOL A.S., AGED 39, D/O. L. ASHOK KUMAR, KAILASAMANGALAM, KAKKANAD P.O., CHENGANNUR, ALAPPUZHA-689121.** **R.P. No.455 of 2021 In 4 OP(KAT) No.62 of 2017** **35 CHIPPY M. MOHANAN, AGED 25, D/O. MOHANAN, MUDAKKUZHA HOUSE, BISON VALLEY, IDUKKI-685565.** **36 ASHA B., AGED 29 YEARS, D/O. BABU K.R.,KIZHKKUMKARATH HOUSE, IVERKALA EAST P.O., PUTHOOR, KOLLAM-691507.** **BY ADVS. K.P.PRADEEP HAREESH M.R. T.T.BIJU T.THASMI M.J.ANOOPA** ## **RESPONDENTS/PETITIONER/RESPONDENTS:** - **1 ELIZABETH THOMAS, W/O. BYJU VARGHESE, RESIDING AT MAJAMKUDY HOUSE, MUDAKKUZHA P.O., ERNAKULAM, KERALA-683546.** - **2 KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY THE SECRETARY, PATTOM P.O., THIRUVANANTHAPURAM-695004.** - **3 THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, KARSHAKA ROAD, KOCHI, KERALA-682016.** ## **SRI.P.C.SASIDHARAN** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 27.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **R.P. No.455 of 2021 In OP(KAT) No.62 of 2017** **5** ## **K. VINOD CHANDRAN & ASHOK MENON, JJ.** **------------------------------------------R.P. No.455 of 2021 In OP(KAT) No.62 of 2017 ---------------------------------------------** **Dated, this the 27[th] day of July, 2021** ## **O R D E R** **Vinod Chandran, J.** **The judgment under review allowed the respondent-applicant to be treated as an eligible candidate for selection to the post of Junior Public Health Nurse Gr.II in a selection conducted by the Kerala Public Service Commission [for brevity 'the PSC'] as per Annexure A3 notification.** **2. The applicant was a person having Diploma in General Nursing, while the technical qualification prescribed was only Auxiliary Nurse Midwifery Certificate as is provided under the Special Rules. The PSC refused to include the applicant in the shortlist, which gave rise to the original application before the Tribunal. The Tribunal allowed the claim following** _**Jyoti K.K. and Others v. Kerala Public Service Commission and Others**_ **R.P. No.455 of 2021 In 6 OP(KAT) No.62 of 2017** _**[(2010) 15 SCC 596]**_ **. This Court approved the finding of the Tribunal that Diploma is a higher qualification than the Certificate stipulated in the notification. The Certificate Course had duration of 18 months, while the Diploma Course was of three years.** **3. The first ground is that the qualification cannot be different from that insisted upon in the Special Rules, which was the specific contention taken at the earlier point by the PSC, as seen from paragraph 4 of the judgment under review. This Court, noticing the contention, approved the order of the Tribunal.** **4. The next ground for review is that** _**Zonal Manager, Bank of India v. Aarya K.Babu [(2019) 8 SCC 587]**_ **deprecated the practice of the High Courts granting equivalency. We do not find such a defect in the present judgment since the Division Bench had relied on a judgment of the Hon'ble Supreme Court and it was a case of a candidate having higher qualification found eligible to apply for the post for which a lower qualification was prescribed. There was no equivalency considered or** **R.P. No.455 of 2021 In 7 OP(KAT) No.62 of 2017** **granted.** **5. The learned Counsel appearing for the respondent-applicant and the learned Standing counsel for the PSC were heard. Learned Counsel for the applicant submitted that she has already obtained the employment and is continuing as such. Learned Standing Counsel points out that the petitioner seek to bypass the Tribunal, which has to be approached at the first instance and if the review is allowed, it cannot affect the appointment of the respondent, the review petitioners being the applicants as per the subsequent notification. Further, if the review is allowed, then the OP(KAT) would be revived, in which event the petitioners would have had no scope for impleadment. Learned Counsel for the review petitioners relied on** _**Haris K.M. v. Jahfar K. [2020 5 KHC 123 (FB)]**_ **.** **6. We do not think the Full Bench decision comes to the aid of the review petitioners. We specifically look at paragraph 11(b) of the Full Bench decision, where the remedy available to similarly situated persons were** **R.P. No.455 of 2021 In 8 OP(KAT) No.62 of 2017** **considered in the context of an original application allowed by the Tribunal. Persons similarly situated like the respondents in an original application, which was allowed by the Tribunal, were found to have remedy only by way of seeking a review before the Tribunal. Such a review is not possible in the present case, since the order of the Tribunal has merged in the order of this Court. But we cannot allow the review only for the purpose of considering the claim of the review petitioners, who had applied for the same post as against a subsequent notification. It is a separate cause of action and they would have to approach the Tribunal at the first instance impleading the persons who are affected. Obviously going by the binding precedent, the Tribunal may dismiss the application. In which circumstance, they would be entitled to file an OP(KAT) and seek reconsideration of the judgment, which if rejected, the further remedy is to approach the Hon'ble Supreme Court. We are definite that no review would lie, since the very contention is that the question of law has** **R.P. No.455 of 2021 In 9 OP(KAT) No.62 of 2017** **been decided wrongly.** _**State of WB v. Kemal Sengupta [2008) 8 SCC 612]**_ **had specifically found against a rehearing in a review petition; which indirectly is the prayer of the review petitioners.** **We hence reject the review petition.** **Sd/-** **K. VINOD CHANDRAN, JUDGE** **Sd/-** **ASHOK MENON, JUDGE** **sp/29/07/2021** **//True Copy//** **P.A. To Judge** **R.P. No.455 of 2021 In 10 OP(KAT) No.62 of 2017** ## **APPENDIX** ## **PETITIONERS' ANNEXURE:** **ANNEXURE A CERTIFIED COPY OF THE JUDGMENT DATED 04/06/2019 IN OP(KAT) NO.62/2017. ANNEXURE B COPY OF THE NOTIFICATION IN CATEGORY NO.527/2019 DATED 31/12/2019 ISSUED BY THE 2ND RESPONDENT.**