R.P.No.949/2019 in WA.No.1989/2018

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 11TH DAY OF OCTOBER 2019 / 19TH ASWINA, 1941** ## **R.P.No.949 OF 2019 IN W.A.1989/2018** **AGAINST THE JUDGMENT IN WA 1989/2018 DATED 22.08.2019 OF HIGH COURT OF KERALA** **REVIEW PETITIONERS/3RD APPELLANT IN WA/ADDITIONAL RESPONDENTS IMPLEADED IN THE WA AS NO.32, 34, 41 AND 52/3RD PETITIONER IN WP(C):** - **1 SHINI.K.M., AGED 37 YEARS, RANK 313, W/O.RIJU T, THOTTUNGAL HOUSE, MANGATTUPARAMBU, ASHOKAPURAM, CALICUT-673001.** - **2 SMITHA V.P., AGED 37 YEARS, RANK 335, D/O K PARAMESWARAN PILLAI, INDU NIVAS, THEKKUVILLA, PUTHUKULANGARA PO, NEDUMANGAD, TRIVANDRUM-695541.** - **3 SAVITHA. N.C., AGED 39 YEARS RANK SUPPLEMENTARY LIST ST-8 D/O N CHINNAN, ONIVAYAL HOUSE, KARYAMBADI POST, MEENAGADI, WAYANAD. 673 591.** - **4 RAJANI.C., AGED 43 YEARS, RANK 323, D/O AYYAPPUNNI C, SOUPARNIKA HOUSE, MUTHUVALLUR PO, MALAPPURAM, PIN-673638.** - **5 PARVATHY SHANKAR, AGED 31 YEARS, RANK 321, D/O C M SANKARAN KUTTY NAIR, SOPANAM, CHETTIPADI PO, PARAPPANANGADI, MALAPPURAM-676319.** **BY ADVS. SRI.K.SHRIHARI RAO SRI.M.C.MONY SAMPATH ANAND SHETTY** **RP.No.949/2019 in - 2 - WA.No.1989/2018** ## **RESPONDENTS/ APPELLANTS 1, 2 AND 4 IN WA/RESPONDENTS/ADDITIONAL RESPONDENTS IN WA/RESPONDENTS IN W.P(C):** - **1 RESHNA.A.M., W/O SUJESH, CHERIYA PARAMBATHU HOUSE, PARAPPANANGADY , MALAPPURAM-676303** - **2 JUSTIN VARGHESE, S/O.LATE A.A. VARGHESE, V/900 A, ARAKKAL HOUSE, VJS 26, VALEPURAM VIA, ATHANI.P.O.-683585.** - **3 PRASEETHA C MOHAN, W/O.SUNILKUAR, PRATHEEKSHA, SOUTH VAZHAKKULAM, ALUVA-683105.** - **4 THE UNIVERSITY OF CALICUT, REPRESENTED BY ITS REGISTRAR, THENHIPALAM P.O. MALAPPURAM 673 636.** - **5 THE KERALA PUBLIC ERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTAM PALACE P.O. THIRUVANANTHAPURAM, 695 004.** - **6 THE REGISTRAR UNIVERSITY OF CALICUT, THENNIPALAM P.O., MALAPPURAM 673 636.** - **7 SARITHA.A.S., RANK NO.51, RESIDING AT THUYOOR VILAYIL VEEDU, KEEZHAROOR.P.O., THIRUVANANTHAPURAM-695124.** - **8 MIDUN P.M., RANK NO.52, RESIDING ATKUZHIMATHICAD.P.O., KUNDARA, KOLLAM-691509.** - **9 ATHIRA R., RANK NO.53, RESIDING AT PAPPADITHARAYIL HOUSE, MANJADITHARA, PALLICKALP.O., KAYAMKULAM, ALAPPUZHA-690503.** - **10 HASEENA. R.P., RANK NO.55, RESIDING AT CHARUPARA VEEDU, KANAKKUZHY, PUNALAL.P.O., THIRUVANANTHAPURAM-695575.** - **11 ABHIJITH T.S., RANK NO.56, RESIDING AT SREEPADAM, OLATHANIL, NEYYATTINKARA.P.O., THIRUVANANTHAPURAM-695121.** - **12 KIRAN JOSE, RANK NO.57, RESIDING AT CHIRAYATH HOUSE, GNRA JT, TRINITY GARDEN, P.O.PULLAZHI, OLARIKKARA, THRISSUR-680012.** **RP.No.949/2019 in - 3 - WA.No.1989/2018** - **13 ASIF.M.T., RANK NO.61,** - **RESIDING AT MEETHALE THAYYULLATHIL HOUSE, KAAKKODI.P.O., CALICUT-673611.** - **14 NITHISH.N., RANK NO.62, RESIDING AT KALARIKKAL HOUSE, ATHIKUZHI, CHITTUR, PALAKKAD-678101.** - **15 NADEETHA KAMARUDHEEN, RANK NO.69, RESIDING AT PALLIMANCHALIL MELATHIL, PERUMPILAVU POST, THRISSUR-19.** - **16 JASMIN.J., RANK NO.72, RESIDING AT OTTAFFICIL VEEDU, VALUPACHA, PULLUPANA.P.O., KADAKKAL, KOLLAM-695536.** - **17 ARUN S., RANK NO.81, RESIDING AT THUNDUVILA VEEDU, NILAKKAMUKKU, KADAKKAVOOR, THIRUVANANTHAPURAM-695306.** - **18 RAHUL RAMESAN, RANK NO.495 (RESERVATION NO.72) RESIDING AT PUTHIYAVEETTIL HOUSE, KALLIYOTTUKUNNU, MANANTHAWADI.P.O., WAYANAD-670645.** - **19 ALIDA C.K., RANK NO.523, (RESERVATION NO.84) RESIDING AT HIMASAILAM HOUSE, THALAYAZHAM.P.O., VAIKKOM, KOTTAYAM-686607.** - **20 PRASEEDA S NAIR, RANK NO.59, RESIDING AT ATHIRA RSLBN-145, KESAVAN NAIR ROAD, POOJAPPURA.P.O., THIRUVANANTHAPURAM-695012.** - **21 RESHMA V.R., RANK NO.65, RESIDING AT TC/9/984/4, VRINDAVAN, SASTHAMANGALAM.P.O., THIRUVANANTHAPURAM-695010.** - **22 SREEJITH VISHUNU.S.. RANK NO.82, RESIDING AT SOUPARNIKA, PADA NORTH, KARUNAGAPPALLY.P.O., THIRUVANANTHAPURAM-691583.** - **23 ROSHAN JOSEPH, RANK NO.63, RESIDING AT CHEERAMKUNNEL HOUSE, UPPUTHURA.P.O., UPPUTHARA, IDUKKI - 685 505.** - **24 GAFOORGHAN.A., RANK NO.60, RESIDING AT MULLERY HOUSE, THIRUVALLATHUR.P.O., KUDUMBU, PALAKKAD-678551.** **- 4 -** **RP.No.949/2019 in WA.No.1989/2018** - **25 PRAVIN.P., RANK NO.77, RESIDING AT PAVITHRAM HOUSE, PALAKKALTHAZHAM, MOKAVOOR ROAD, KARUVISSERY.P.O., CALICUT-673001.** - **26 THE PRINCIPAL SECRETRY, HIGHER EDUCATION DEPARTMENT, STATE OF KERALA, THIRUVANANTHAPURAM 695 001.** - **27 AKHIL.T.K., AGED 26 YEARS, S/O. T. THULASIDARAN, KUMARY BHAVAN, MUKKOLA, ARASUPARAMBU, NEDUMANGAD, THIRUVANANTHAPURAM-695541.** - **28 VIPIN.K. J, S/O.KARTHIKEYAN NAIR C., LAKSHMI NIVAS, SWAMIYARMADOM, CHEMPAZHANTHY.P.O., THIRUVANANTHAPURAM-695587.** - **29 VISHNU RAJ .M., S/O.NATARAJAN, VIPIN NIVAS, KALLUMTHAZHAM.P.O., KILIKOLLOOR, KOLLAM-691004.** - **30 VISHNU.R., AGED 26 YEARS, S/O.RAJAN CHETTIYAR K, RANK NO.1708, RESIDING AT TC-65/2046, KUNNUVILAKATHU PUTHEN VEEDU, THIRUVALLOM.P.O., THIRUVANANTHAPURAM-695027.** - **31 NIKHIL.V. PARAMESWAR, AGED 26 YEARS, S/O.V.N PARAMESWARAN, RANK NO.1873, RESIDING AT VELIPARAMBIL HOUSE, NETTOOR.P.O., MARADU, ERNAKULAM-682040.** - **32 GREESHMA.C, AGED 31 YEARS, D/O SUDHAKARAN P, KANDIYIL THODIKAYIL HOUSE, VELLALASSERY PO, REC NIT (VIA), KOZHIKODE-673601.** - **33 AMRITHA.M., AGED 34 YEARS, D/O MOHANAN M., KANANGHOTE HOUSE, DEVI MANDIRAM, KOLATHARA P.O, CALICUT-673655.** - **34 RESHMA.L.R., AGED 37 YEARS, D/O REGHUVARAN D, REVATHY HOUSE, ARUVIKKARA, KUVALASSERY P.O, TRIVANDRUM-695512.** - **35 GAYATHRI. P.V., AGED 33 YEARS D/O P.K VISHNU NAMBOOTHIRI, PUTHIYILLAM, SREESTHA (PO), PAYANGADI, KANNUR-670303.** **RP.No.949/2019 in - 5 - WA.No.1989/2018** - **36 SOUMYA, AGED 32 YEARS, D/O SADANANDAN V.P, SARAMGAM HOUSE, KOHINOOR, TENHIPALAM POST, MALAPPURAM-673636.** - **37 MANZOORALI.M.K., AGED 36 YEARS, S/O HASSAN M.K, MUDAVAN KULAVAN, AMBALAPPADI KARULAL P.O, NILAMBUR, MALAPPURAM-679330.** - **38 SHYNA.A.K., AGED 38 YEARS, D/O PREMARAJAN A, DEVI SADAN, PERUMPARAMBA, P.O.IRRITY, KANNUR-670703.** - **39 JISHAMOL. A.J., AGED 30 YEARS, D/O JANARDHANAN A.G, AMBAKKATTUCHIRA, PANDAMKARY PO, EDATHUA, ALAPPUZHA-689721.** - **40 LEJISHA. V.P., AGED 38 YEARS, D/O GOVINDAN T, RAYAROTH THAZHE KUNIYIL, MADAPPALLY COLLEGE, VADAKARA-673102.** - **41 ANUSREE.C., AGED 30 YEARS, D/O RAJAN C, CHAMMINI HOUSE, VALLIKKUNNU PO, MALAPPURAM-673102.** - **42 JENSHY.B., AGED 37 YEARS, D/O BADARUDDIN M, MULAMOOTTIL HOUSE, EDAKKODE PO, KORANI, THIRUVANANTHAPURAM. 695 104** - **43 SULFIYA.M., AGED 33 YEARS, D/O HAMZA, VELLAPPOOKKIL HOUSE, CHERUPPA (PO), MAVOOR (VIA), KOZHIKODE DISTRICT-673661.** - **44 JESHI.K., AGED 42 YEARS, RANK 347, D/O BHARATHAN K, NEEHARAM, SOUTH KALOOR ROAD, MANKAVE PO, KOZHIKODE-673007.** - **45 JASMINE.K.P., AGED 39 YEARS, D/O MOHAMMED K.P, SADATH MANZIL, DEVATHIYAL, PUTHUR PALLIKKAL PO, THENHIPPALAM VIA, PIN-673636.** - **46 RUMITHA.C., AGED 30 YEARS, D/O KARUNAKARAN C, PALAYIL HOUSE, VELIMUKKU SOUTH PO, MALAPPURAM DISTRICT-676317.** - **47 SINCHU.O., AGED 32 YEARS, D/O CHANDRAN O, KARALI HOUSE, MORIKKARA PO, KAKKODI, KOZHIKODE-673611.** **- 6 -** **RP.No.949/2019 in WA.No.1989/2018** - **48 SHILPA.M., AGED 30 YEARS, D/O M BHASKARAN NAIR, MOOTHOUR HOUSE, KOTTATHARA PO, KALPETTA, WAYANAD-673122.** - **49 JAYASREE.P., AGED 41 YEARS, D/O P.AYYAPPAN, THARAYIL HOUSE, NEDUVA PO, POORAPPUZHA, PARAPPANANGADI-676303.** - **50 ASNA.P.A., AGED 36 YEARS D/O GOPALAN PARIYAPURATH, KAUSTHUBHAM, NETAJI ROAD, TENHIPALAM PO, MALAPPURAM DISTRICT-673636.** - **51 LAYANA JOSEY, AGED 34 YEARS, D/O V.G JOSEY, VADASSERY HOUSE, AZHEEKAL PO, ERNAKULAM, PIN-682508.** - **52 MOHAMMED FAJER B., AGED 32 YEARS, S/O A M MAMMED KOYA, KOYAS, POOLOTT PARAMBA, P.O.EDAKKAD, KOZHIKODE-673005.** - **53 DEEPA.P., AGED 42 YEARS, D/O DAMODHARAN NAIR P.P, SREEPADAM HOUSE, KOKKALLUR PO, BALUSSERY VIA-673612.** - **54 JOBY FRANCIS, AGED 43 YEARS, S/O FRANCIS JOSEPH, MUNJANATTU HOUSE, CHAKKAMPUZHA PO-686574.** - **55 JASNA.A., AGED 30 YEARS, D/O JAMALUDHEEN A, ALANGADAN HOUSE, MANKADA PO, MALAPPURAM-679324.** - **56 SINDHU.T., AGED 39 YEARS, D/O TURCHIES A, AMINALAYAM, MANAKKARA, SASTHAMCOTTA PO, KOLLAM, PIN-690521.** - **57 VINOY.N., AGED 39 YEARS, S/O NARAYANAN M M, MANNODI MADATHINGAL HOUSE, AZHINHILAM PO, FAROOK COLLEGE VIA, MALAPPURAM DISTRICT, PIN-673632.** - **58 RADHIKA.R.S., AGED 33 YEARS, W/O SURESH V K, VALIYAVEETTIL KALATHIL, MELAZHIYAN, ANAKKARA PO, PALAKKAD DISTRICT, PIN-679551.** - **59 MANU.B., AGED 27 YEARS, S/O. J. BABU, KALLUNATTIYA VILA VEEDU, CHERUMOODU, VELLIMON, KOLLAM. 691 511.** **RP.No.949/2019 in - 7 - WA.No.1989/2018** **60 BIJU.C.V., AGED 44 YEARS, S/O. VELLAKILY KUNJUPPAN, CHUNAMUZHYMRIYIL HOUSE, OLIYAPPURAM POST, KOOTHATTUKULAM, ERNAKULAM. 686 662.** **R4 & R6 BY ADVS.C.P.MOHAMMED NIAS (B/O), R32 TO 52 BY ADV.SRI.P.DEEPAK (B/O), R1 TO R3 BY ADV.SRI.SREEDHAR RAVINDRAN (B/O) R5 BY STANDING COUNSEL SRI.P.C.SASIDHARAN (B/O) R26 BY SENIOR GOVT. PLEADER SRI.P.N.SANTHOSH R27, R29 BY ADV. SRI.B.ASHOK SHENOY R30 & R31 BY ADV.SRI.P.NANDAKUMAR (B/O). R59 & R60 BY ADV.SRI.M.R.SARIN (B/O) R7, R10, R11, R16, R17, R20 & R21 BY ADV. SRI.K.M.SATHYANATHA MENON (B/O)** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 11.10.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **- 8 -** **RP.No.949/2019 in WA.No.1989/2018** **K.Vinod Chandran & V.G.Arun, JJ. ------------------------------------------** **R.P.No.949 of 2019 in W.A.No.1989 of 2018 -----------------------------------------Dated, this the 11[th] day of October, 2019 O R D E R** **K.Vinod Chandran, J.** **This Review Petition is filed on various grounds of errors apparent on the face of the record. It is first contented that this Court has committed an error in the interpretation of the Kerala Public Service Commission (Additional Functions as Respects the Services under the Universities) Act (for short, 'Act 18 of 2015')[Ground-A]. Then it is argued that while the executive order issued by the Government in consultation with the Public Service commission was upheld it was omitted to be noted that there was no consultation with the University [Ground-B]. It is further pleaded that the list prepared by the University was never challenged and that even the Government did not raise cudgels against the power of the Syndicate to extend the period of validity of the list [Ground-C]. That the aspect of the PSC not having power to carry out a selection without framing the rules was not considered [Ground-D]. That the Act of 2015 was only prospective and it was never intended that the selection already carried out by the University is interfered with [Ground-E].** **RP.No.949/2019 in - 9 - WA.No.1989/2018** **2. We have considered each of the Grounds above stated. We found, in the judgment, that Act 18 of 2015 overrides the statutory scheme by Section 3(1), a nonobstante clause, which negatives Ground-A in the review petition.** **3. Likewise, with respect to Grounds-B and D we have specifically found that there is a procedural irregularity in the Government having not made consultation with the University. But all the same, we found that the Government had consulted the PSC, who had advised issuance of an executive order; which executive order also was in tune with the statutory prescriptions of the University itself. The expediency in making appointments to posts was found worthy of ignoring the procedural irregularity. It was also noticed that the executive order, issued by the Government, was in consonance with the University Statutes.** **4. As far as Ground-C is concerned,** _**de hors**_ **the Government having not raised a contention against the power of the Syndicate to extend the period of the validity of the list; we found no enabling power to so extend the period, on the Syndicate. The Statute having not conferred any power on the Syndicate, the extension of validity period of the list was found to be incompetent.** **RP.No.949/2019 in - 10 - WA.No.1989/2018** **5. Act 18 of 2015 even according to us is only prospective. We have not entered any finding against that. We only permitted the appointments as per the University list prior to the coming into force of the PSC list to be regularized. The further appointments made from the University list, we found it to be enabled only by virtue of the interim orders passed by this Court, which specifically made such appointments subject to the result of the writ petitions.** **6. We do not find any error apparent from the records of the case in the impugned judgment, as per the Grounds raised in the review petition. We are also told that there is a challenge taken to the Hon'ble Supreme Court from the impugned judgment. The petitioners in this review petition are seeking a re-hearing of the matter, which cannot be permitted in review as has been held in various decisions of the Hon'ble Supreme Court and this Court. We deem it apposite to extract a few paragraphs from the order in R.P.No.435 of 2019 in OP (CAT) No.176 of 2018 dated 01.07.2019 [** _**Pramod Kumar Savita & Ors**_ **.** _**v**_ **.** _**Union of India & Ors**_ **.], wherein one of us [V.G.Arun,J.] was a member:** **- 11 -** **RP.No.949/2019 in WA.No.1989/2018** **“2. Though the grounds are elaborate, crux of the contentions is that the judgment was rendered based on erroneous appreciation of the pleadings and wrong assumption with respect to the contentions. The Honourable Supreme Court in** _**M/s. Thungabhadra Industries Limited v**_ **.** _**The Government of Andra Pradesh**_ **[AIR 1964 SC 1372] has succinctly stated the distinction between a mere erroneous decision and a decision which could be characterised as vitiated by “error apparent”. The relevant portion of the judgment reads as follows:-** **“There is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by “error apparent”. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. Where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.”** **The dictum in** _**Thungabhadra Industries**_ **is reiterated in** _**Parsion Devi v**_ **. Sumitri Devi [(1997) 8 SCC 715], wherein the Apex Court held that an error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record, justifying the court to exercise its power of review under Order XLVII Rule 1 of the Code. It is also held that it is not permissible for an erroneous decision to be** **RP.No.949/2019 in WA.No.1989/2018** ## **- 12 -** **reheard and corrected in exercise of the jurisdiction under Order XLVII Rule 1 and that, a review petition cannot be allowed to be an appeal in disguise. Later, in** _**Lily Thomas v**_ **.** _**Union of India**_ **[(2000) 6 SCC 224], the Apex Court held that the power of review can be exercised for correction of the mistake, but not to substitute a view. Recently in** _**Perry Kansagra v Smriti Madan Kansagra**_ **[2019 (3) SCALE 573], the Apex Court made the following exposition on exercise of review jurisdiction:** **“We have gone through both the judgments of the High Court in the instant case and considered rival submissions on the point. It is well settled that an error which is required to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record. To justify exercise of review jurisdiction, the error must be self - evident. Tested on this parameter, the exercise of jurisdiction in the present case was not correct. The exercise undertaken in the present case, in our considered view, was as if the High Court was sitting in appeal over the earlier decision dated 17/02/2017. Even assuming that there was no correct appreciation of facts and law in the earlier judgment, the parties could be left to challenge the decision in an appeal. But the review was not a proper remedy at all. In our view, the High Court erred in entertaining the review petition and setting aside the earlier view dated 17/02/2017.”** **A conspectus of the decisions rendered by the Apex Court, on the limited scope for exercise of review jurisdiction, makes it abundantly clear that an alleged erroneous appreciation of the pleadings or wrong assumption of the contentions cannot be a ground for review. The grounds raised in the review** **RP.No.949/2019 in - 13 - WA.No.1989/2018** **petitions are grounds that ought to be raised in an appeal. The review petitions are nothing, but an appeal in disguise. We also take note of the fact that though the common judgment sought to be reviewed was rendered in O.P.(CAT) Nos.173, 176 and 190 of 2018, review petitions have been filed only in O.P.(CAT) Nos.176 & 190 of 2018. We find no merit in the review petitions and accordingly, the review petitions are dismissed”.** ## **The Review Petition is dismissed.** **Sd/K.VINOD CHANDRAN JUDGE** **Sd/V.G.ARUN JUDGE** NS/vku. [ true copy ]