RP Nos. 108/2019, 159/2019 & 1109/2018 in OP(KAT) Nos. 135/2018, 143/2018 & 136/2018 — High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 06TH DAY OF AUGUST 2019 / 15TH SRAVANA, 1941** ## **RP.No.1109 OF 2018 IN OP(KAT).NO.136/2018** **AGAINST THE JUDGMENT DATED 28.03.2018 IN OP(KAT)NO.136/2018(Z) OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER/PETITIONERS IN OP(KAT):** **O.P.PRADEEP, AGED 36 YEARS S/O.V.U.PRABHAKARAN, OORICKANAL HOUSE, POTHANIKADAVU, PIN- 686671, ERNAKULAM, KERALA.** **BY ADVS. SRI.C.S.AJITH PRAKASH SMT.T.N.SREEKALA SRI.T.K.DEVARAJAN SRI.PAUL C THOMAS A.T.JOSE** ## **RESPONDENTS/RESPONDENTS:** - **1 THE SECRETARY, AGRICULTURAL DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, KERALA- 695001.** - **2 THE DIRECTOR, AGRICULTURAL DEVELOPMENT, FARMERS WELFARE, VIKAS BHAVAN, THIRUVANANTHAPURAM, KERALA- 695033.** - **3 THE PRINCIPAL AGRICULTURAL OFFICER, OFFICE OF THE AGRICULTURAL OFFICER, ERNAKULAM- 682031.** - **4 THE ASSISTANT DIRECTOR OF AGRICULTURE, KOTHAMANGALAM, ERNAKULAM, OFFICE OF THE ASSISTANT DIRECTOR OF AGRICULTURE, ERNAKULAM.** R.P.Nos.108, 159 of 2019 & 1109 of 2018 in OP(KAT) Nos.135, 143, 136 of 2018 **==> picture [7 x 8] intentionally omitted <==** **5 STATE OF KERALA, REPRESENTED BY GOVERNMENT PLEADER, HIGH COURT OF KERALA, ERNAKULAM- 682031, KERALA.** ## **OTHER PRESENT:** ## **SRGP.MARY BEENA JOSEPH** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 06.08.2019, ALONG WITH RP.NOS.108/2019 & 159/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** R.P.Nos.108, 159 of 2019 & 1109 of 2018 in OP(KAT) Nos.135, 143, 136 of 2018 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 06TH DAY OF AUGUST 2019 / 15TH SRAVANA, 1941** **RP.No.108 OF 2019 IN OP(KAT). 135/2018** **AGAINST THE JUDGMENT DATED 28.03.2018 IN OP(KAT)NO.135/2018(Z) OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER/PETITIONERS IN OP(KAT)S:** **RAVEENDRAN K., AGED 49 YEARS S/O.KUNJAN, MUTHERIYIL HOUSE, MUTHERIYIL JUNCTION, NEELESWARAM, OMASSERY VIA KOZHIKODE, KERALA-673572.** **BY ADVS. SRI.C.S.AJITH PRAKASH SMT.T.N.SREEKALA** ## **RESPONDENTS/RESPONDENTS:** - **1 THE SECRETARY, AGRICULTURAL DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA-695001.** - **2 THE DIRECTOR AGRICULTURAL DEVELOPMENT AND FARMERS DEVELOPMENT DEPARTMENT, THIRUVANANTHAPURAM-695001.** - **3 THE PRINCIPAL AGRICULTURAL OFFICER OFFICE OF THE PRINCIPAL AGRICULTURAL OFFICER, KOZHIKODE-673001, KEALA.** R.P.Nos.108, 159 of 2019 & 1109 of 2018 in OP(KAT) Nos.135, 143, 136 of 2018 4 **4 THE ASSISTANT DIRECTOR OF AGRICULTURE, MUKKOM, OFFICE OF THE ASSISTANT DIRECTOR OF AGRICULTURE, MUKKOM, KUNNAMANGALAM-673571.** ## **OTHER PRESENT:** ## **SRGP.MARY BEENA JOSEPH** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 06.08.2019, ALONG WITH RP.1109/2018 AND RP.159/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** R.P.Nos.108, 159 of 2019 & 1109 of 2018 in OP(KAT) Nos.135, 143, 136 of 2018 5 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 06TH DAY OF AUGUST 2019 / 15TH SRAVANA, 1941 RP.No.159 OF 2019 IN OP(KAT). 143/2018** **AGAINST THE JUDGMENT DATED 28.03.2018 IN OP(KAT)NO.143/2018(Z) OF HIGH COURT OF KERALA** ## **REVIEW PETITIONERS/PETITIONERS IN OP(KAT)S:** |**1**|**RAJEEVAN.M.C**| |---|---| ||**AGED 45 YEARS**| ||**S/O POKKAN, KRISHNASREE HOUSE,**| ||**MEETHILECHATHANKANDI, CHOMBALA.P.O,**| ||**VADAKARA VIA, KOZHIKODE, KERALA-673308.**| |**2**|**PAVITHRAN.K,**| ||**AGED 50 YEARS**| ||**S/O CHEKKOTTY, KOORANTAVIDE.P.O, THIKKODI,**| ||**VIA PAYYOLI, CALICUT-673529, KERALA.**| |**3**|**PRAVEEN.T.P,**| ||**S/O RAGHAVAN.V.K, VAYALAIKKARA VEEDU,**| ||**PARAMBRA.P.O,PERAMBRA,CALICUT-673525,KERALA.**| |**4**|**N.BALASUBRAMANYAN, AGED 61 YEARS**| ||**S/O CHANDHUKUTTY,NELLIPANATH,WEST HILL.P.O,**| ||**CALICUT-673306.**| |**5**|**E.VINODKUMAR,**| ||**AGED 48 YEARS**| ||**S/O LATE JANARDHANAN NAIR, LAKSHMI NIVAS**| R.P.Nos.108, 159 of 2019 & 1109 of 2018 in OP(KAT) Nos.135, 143, 136 of 2018 6 **NEAR CHINMAYA VIDYALAYAM,KASARAGODE, KERALA-671314.** - **6 RAGHAVESWARAN.J, AGED 40 YEARS S/O JANARDHANAN,CHELAKKARA, THRISSUR-680586,KERALA.** - **7 BABU.K, AGED 36 YEARS S/O LATE DEVASSYA,KOLENCHERRY HOUSE, ANCHUKANNU.P.O,MANANTHAVADI,WAYANAD, KERALA-670645.** - **8 SUMESH.A, AGED 29 YEARS S/O MURALEEDHARAN,SMITHA NIVAS, MAMBARAM,KANNUR-670141,KERALA.** - **9 ANOOP KUMAR.K, AGED 31 YEARS S/O.SURENDRAN.K,KANDANKOL HOUSE, MADHAMANGALAM.P.O,M.M.BAZAR,PIN-670306.** - **10 VIJEESH.C, AGED 32 YEARS S/O N.VIJAYAN,MAMBARAM,KANNUR-670741, KERALA.** - **11 SREELESH.O, AGED 27 YEARS S/O KUNJURAMAN,OANIYANTAVIDE HOUSE, PATHOOR.P.O,KANNUR-670692.** **BY ADVS. SRI.C.S.AJITH PRAKASH SMT.T.N.SREEKALA SRI.ASWIN T SURESH** ## **RESPONDENTS:** - **1 THE SECRETARY, AGRICULTURAL DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM,KERALA-695001.** - **2 THE DIRECTOR,** R.P.Nos.108, 159 of 2019 & 1109 of 2018 in OP(KAT) Nos.135, 143, 136 of 2018 7 ## **AGRICULTURAL DEVELOPMENT AND FARMERS DEVELOPMENT DEPARTMENT, THIRUVANANTHAPURAM,KERALA-695001.** - **3 THE PRINCIPAL AGRICULTURAL OFFICER, OFFICE OF THE PRINCIPAL AGRICULTURAL OFFICER,KOZHIKODE-673001,KERALA.** - **4 THE ASSISTANT DIRECTOR OF AGRICULTURE, KUNNUMEL MOKERY,OFFICE OF THE ASSISTANT DIRECTOR OF AGRICULTURE, KOZHIKODE, KERALA-673001.** - **5 THE PRINCIPAL AGRICULTURE OFFICER, OFFICE OF THE PRINCIPAL AGRICULTURE OFFICER, KASARAGODE, KERALA-671121.** - **6 THE ASSISTANT DIRECTOR OF AGRICULTURE, KASARAGODE,OFFICE OF THE ASSISTANT DIRECTOR OF AGRICULTURE, KASARAGODE, KERALA-671121.** - **7 THE PRINCIPAL AGRICULTURAL OFFICER, OFFICE OF THE PRINCIPAL AGRICULTURE OFFICER, THRISSUR-680001.** - **8 THE ASSISTANT DIRECTOR OF AGRICULTURE, THRISSUR, OFFICE OF THE ASSISTANT DIRECTOR OF AGRICULTURE, THRISSUR-680001.** - **9 THE PRINCIPAL AGRICULTURAL OFFICER, OFFICE OF THE PRINCIPAL AGRICULTURAL OFFICER, WAYANAD, KERALA-673121.** - **10 THE ASSISTANT DIRECTOR OF AGRICULTURE, WAYANAD,OFFICE OF THE ASSISTANT DIRECTOR OF AGRICULTURE,WAYANAD-673121.** - **11 THE DIRECTOR OF AGRICULTURE, PANOOR,THALASSERY,OFFICE OF THE ASSISTANT DIRECTOR OF AGRICULTURE,PANOOR, THALASSERY-679692,KERALA.** - **12 THE ASSISTANT DIRECTOR OF AGRICULTURE PERAMBRA, KOZHIKODE, OFFICE OF THE ASSISTANT DIRECTOR OF AGRICULTURE ,** R.P.Nos.108, 159 of 2019 & 1109 of 2018 in OP(KAT) Nos.135, 143, 136 of 2018 8 ## **PERAMBRA, KOZHIKODE, KERALA-673001.** - **13 THE ASSISTANT DIRECTOR OF AGRICULTURE, KANNUR,OFFICE OF THE ASSISTANT DIRECTOR OF AGRICULTURE,KANNUR-670001,KERALA.** - **14 THE ASSISTANT DIRECTOR OF AGRICULTURE, PAYYANNUR,OFFICE OF THE ASSISTANT DIRECTOR OF AGRICULTURE,PAYYANNUR-670307.** - **15 THE ASSISTANT DIRECTOR OF AGRICULTURE, EDAKKAD,KOOTHUPARAMBU,OFFICE OF THE ASSISTANT DIRECTOR OF AGRICULTURE, EDAKKADU,KOOTHUPARAMBU-670643.** - **16 THE ASSISTANT DIRECTOR OF AGRICULTURE PERAVOOR, OFFICE OF THE ASSISTANT DIRECTOR OF AGRICULTURE,PERAVOOR-670673,KERALA.** - **17 THE PRINCIPAL AGRICULTURAL OFFICER, OFFICE OF THE PRINCIPAL AGRICULTURE OFFICER,KANNUR,KERALA-670001.** - **18 STATE OF KERALA, REPRESENTED BY GOVERNMENT PLEADER, HIGH COURT OF KERALA, ERNAKULAM-682031,KERALA.** - **19 SUDEEP SURENDRAN, AGED 124 YEARS** - **S/O.SURENDRAN,PRANAVAM,PAMPALA, PAPPINISSERY,PIN-670561.** ## **OTHER PRESENT:** ## **SR GP.MARY BEENA JOSEPH** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 06.08.2019, ALONG WITH RP.1109/2018 AND RP.108/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** R.P.Nos.108, 159 of 2019 & 1109 of 2018 in OP(KAT) Nos.135, 143, 136 of 2018 9 ## **O R D E R** ## Nagaresh, J. The review petitioners in R.P.Nos.108/2019, 159/2019 and 1109/2018 seek to recall and review judgment dated 28.03.2018 in OP(KAT).Nos.135/2018, 143/2018 and 136/2018 respectively and to re-hear the original petitions. Since the issue involved in the RPs and OPs(CAT) are identical, we propose to consider these RPs together and dispose of the same by a common order. 2. The review petitioners, in the aforesaid OPs(CAT) filed OA(EKM) Nos.958/2017, 1980/2016 and 2081/2016 in the Kerala Administrative Tribunal Seeking to direct the respondents to pay the arrears of salary payable to the applicants from 01.03.2016 as per the G.O.No.28/2016 and not to terminate the services of the applicants and allow them to continue in service till the PSC hands replaces them. 3. The Tribunal after going through the pleadings and R.P.Nos.108, 159 of 2019 & 1109 of 2018 in OP(KAT) Nos.135, 143, 136 of 2018 10 hearing the arguments came to the conclusion that in view of certain judgments of this Court, the applicants cannot be permitted to continue with the appointment. The Tribunal found that the posts against which the applicants were appointed were not required to be filled up through the Public Service Commission and hence the contention of the applicants that the applicants should be permitted to continue till PSC hands joined duty, cannot be accepted. However, the Tribunal while disposing of the OAs(EKM) directed that the applicants shall be retained in service till replaced by contractual appointees/provisional appointees engaged through Employment Exchange. 4. In OPs(KAT) filed by the review petitioners, this Court considered the entire facts of the cases. This Court noted that even according to the petitioners they are temporary employees. In _**C.Latha v. State and Others** [1993 (2) KLJ 497]_ a Division Bench of this Court has noticed that in sharp contrast to the situation in the judgment in _**State of**_ R.P.Nos.108, 159 of 2019 & 1109 of 2018 in OP(KAT) Nos.135, 143, 136 of 2018 11 _**Haryana and Others v. Piara Singh and Others** [1992 (4) SCC 118],_ the Kerala State & Subordinate Service Rules contained a specific provision in Rule 9(a)(i) that permits temporary appointments for periods not exceeding 180 days. This Court further found that the dictum laid in the said case has been followed by another Division Bench in _**Vinod v. State of Kerala** [1998 (1) KLT 607]_ . Both the aforesaid judgments took a view that in temporary appointments also unemployed eligible candidates have a right to get equal opportunity, and a candidate who is appointed as a temporary employee for a fixed period, cannot be allowed to continue in such post since other unemployed candidates have also a right to get an opportunity to work against those posts on temporary basis. This Court, relying on the aforesaid judgments found that there is no ground to admit the OPs(KAT) and dismissed the same. 5. Learned counsel for the review petitioners argued that the judgment in OPs(KAT) contains error apparent on the R.P.Nos.108, 159 of 2019 & 1109 of 2018 in OP(KAT) Nos.135, 143, 136 of 2018 12 face of them. According to the learned counsel, this Court proceeded on a wrong premises that the appointment of petitioners were under Rule 9(a)(i) of KS & SSR. In fact petitioners were not appointed under the said Rule. The learned counsel further submitted that the fact situations obtaining in _**State of Haryana and Others v. Piara Singh and Others** [1992 (4) SCC 118]_ are more applicable to the cases on hand and the present cases are squarely covered by the judgment of the Hon’ble Supreme Court in _**Piara Singh** case (supra)_ . 6. The learned counsel for the petitioners further argued that petitioners were selected and appointed by under going due selection process after responding to notifications and since the petitioners were appointed as per a scheme, the appointment orders did not specify a definite period and for that reason also petitioners are entitled to continue till the scheme expires. Learned counsel, pointed out that this Court went on a wrong notion ignoring the fact that the petitioners R.P.Nos.108, 159 of 2019 & 1109 of 2018 in OP(KAT) Nos.135, 143, 136 of 2018 13 were not appointed against any permanent post/vacancy. On these premises, the learned counsel pointed out that the judgments in OPs(KAT) suffer from errors apparent on the face of the record. 7. We have heard the learned counsel for the review petitioners and have perused the pleadings in the matter, the facts are not much in dispute. The petitioners were appointed on contract basis. The contractual appointments were of short duration and were not against any permanent cadre, vacancies or posts. In view of the said position the respondents decided to make temporary appointments resorting to Employment Exchange. In view of the fact that other eligible candidates who have registered their names with Employment Exchange also have a right to be considered for short-term appointments, there is no illegality in the Employer terminating the services of the petitioners, in order to give an opportunity to the other Employment Exchange candidates. The reasons for taking such a course R.P.Nos.108, 159 of 2019 & 1109 of 2018 in OP(KAT) Nos.135, 143, 136 of 2018 14 is upheld by this Court in _**C.Latha v. State and Others** [1993 (2) KLJ 497]_ and in _**Vinod v. State of Kerala** [1998 (1) KLT 607]_ and this Court held that there is no illegality in filling up temporary posts by fresh hands through the Employment Exchange in order to give opportunity of employment to others also. It is following the aforesaid principle of law that the judgments under review were passed. We find no error in the course resorted to by the respondents. 8. The Hon’ble Supreme Court has held in the judgment in _**Perry Kansagra v. Smriti Madan Kansagra** [2019 (3) SCALE 573]_ that an error which can be detected only by a process of reasoning, cannot be treated as an error apparent on the face of the records warranting review of a judgment. The Hon’ble Apex Court further held that even and erroneous finding of fact or error of law committed by a court, cannot be a reason to exercise review power. It is only such errors which are apparent on the face of the order/judgment, which can be corrected by a review of the judgment. Taking R.P.Nos.108, 159 of 2019 & 1109 of 2018 in OP(KAT) Nos.135, 143, 136 of 2018 **==> picture [12 x 8] intentionally omitted <==** into consideration the facts of the case and the law laid down by the Hon'ble Apex Court, we do not find any error apparent on the face of the judgments under review. In view of the above finding these Review Petitions stand dismissed. Sd/- **P.V.ASHA, JUDGE** Sd/- **N.NAGARESH, JUDGE** AS R.P.Nos.108, 159 of 2019 & 1109 of 2018 in OP(KAT) Nos.135, 143, 136 of 2018 16 ## **APPENDIX OF RP 1109/2018** **PETITIONER'S ANNEXURES:** **ANNEXURE I** **CERTIFIED COPY OF THE JUDGMENT DATED 28.03.2018 IN OP(KAT)NO.136 OF 2018 RENDERED BY THIS HON'BLE COURT.** R.P.Nos.108, 159 of 2019 & 1109 of 2018 in OP(KAT) Nos.135, 143, 136 of 2018 17 ## **APPENDIX OF RP 108/2019** **PETITIONER'S ANNEXURES:** **ANNEXURE I** **CERTIFIED COPY OF THE JUDGMENT DATED 28/03/2018 IN OP(KAT)NO.135/2018 RENDERED BY THIS HON'BLE COURT.** R.P.Nos.108, 159 of 2019 & 1109 of 2018 in OP(KAT) Nos.135, 143, 136 of 2018 18 ## **APPENDIX OF RP 159/2019** **PETITIONER'S EXHIBITS:** **ANNEXURE I** **CERTIFIED COPY OF THE JUDGMENT DATED 28.03.2018 IN OP(KAT)NO.143 OF 2018 RENDERED BY THIS HON'BLE COURT.**