Sajeev S. v. RT. Rev. A. Dharmaraj Raslam and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:-** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MRS.JUSTICE SHIRCY V.** **WEDNESDAY, THE 04TH DAY OF NOVEMBER 2020 / 13TH KARTHIKA, 1942** **R.P.No.639 OF 2020 IN W.A.No.1833/2019** **AGAINST THE JUDGMENT IN W.A.No.1833/2019 DATED 19.08.2019 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER/ ADDITIONAL 6TH RESPONDENT:** **SAJEEV S., AGED 55 YEARS., SON OF V.M. STANLY, PRINCIPAL-IN-CHARGE, L.M.S. HIGHER SECONDARY SCHOOL, CHEMBOOR, NEYYATTINKARA-695125, THIRUVANANTHAPURAM.** **BY ADVS. SRI.V.A.MUHAMMED SRI.V.RAJASEKHARAN NAIR SMT.JENZIYA P.A.** ## **RESPONDENTS/ APPELLANT & RESPONDENTS 1 TO 5 IN THE W.A.:** - **1 RT. REV. A.DHARMARAJ RASLAM, BISHOP AND CORPORATE MANAGER, CHURCH OF SOUTH INDIA, SOUTH KERALA DIOCESE LMS SCHOOLS, LMS COMPOUND, THIRUVANANTHAPURAM-695 033.** - **2 THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001** - **3 THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001** **4 THE DIRECTOR OF GENERAL EDUCATION (HIGHER SECONDARY WING), JAGATHY, THIRUVANANTHAPURAM-695 014 (SHOWN IN THE WRIT APPEAL CAUSE TITLE AS DIRECTOR OF HIGHER SECONDARY EDUCATION, DIRECTORATE OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, THIRUVANANTHAPURAM-695 001).** **RP.Nos.639/2020 & - 2 - 678/2020** **5 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, OFFICE OF THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, CORPORATION BUILDING, THIRUVANANTHAPURAM-695 033.** **6 SMT.SREELATHA P.R, W/O. JOHN VICTOR, HEBRON, POOVANMULA, TRITHUPURAM, MADICHEL P.O, K.K. DISTRICT, KUZHITHURA, TAMIL NADU STATE, PIN-629 163 (WORKING AS HEADMISTRESS, LMS TAMIL HIGH SCHOOL, PARASSALA, THIRUVANANTHAPURAM-695 502)** **BY ADVS. R1 BY SRI.G.SUDHEER R2 TO R5 BY SENIOR GOVT. PLEADER SMT.REKHA C. NAIR R6 BY SRI.JOSEPH GEORGE** **THIS REVIEW PETITION HAVING COME UP FOR ORDERS ON 04.11.2020, ALONG WITH R.P.No.678/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RP.Nos.639/2020 & - 3 - 678/2020** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MRS.JUSTICE SHIRCY V.** **WEDNESDAY, THE 04TH DAY OF NOVEMBER 2020 / 13TH KARTHIKA, 1942** **R.P.No.678 OF 2020 IN W.A.No.1820/2019** **AGAINST THE JUDGMENT IN W.A.No.1820/2019 DATED 19.08.2019 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER/ ADDITIONAL 5TH RESPONDENT:** **SAJEEV S., AGED 55 YEARS., SON OF V.M. STANLY, PRINCIPAL-IN-CHARGE, LMS HIGHER SECONDARY SCHOOL, CHEMBOOR, NEYYATTINKARA-695 125, THIRUVANANTHAPURAM.** **BY ADVS. SRI.V.A.MUHAMMED SRI.V.RAJASEKHARAN NAIR SMT.JENZIYA P.A.** ## **RESPONDENTS/ APPELLANT & RESPONDENTS 1 TO 4 IN THE W.A.:** **1 RT.REV.A.DHARMARAJ RASLAM, AGED 63 YEARS, SON OF J. ALBERT, BISHOP AND CORPORATE MANAGER, CHURCH OF SOUTH INDIA, SOUTH KERAL DIOCESE, LMS SCHOOLS, LMS COMPOUND, THIRUVANANTHAPURAM-695 033.** **2 SMT. SREELETHA P.R, W/O JOHN VICTOR, HEBRON, POOVANMULA, TRITHURPURAM, MADICHEL P.O., K.K.DISTRICT, KUZHITHURA, TAMIL NADU STATE, PIN-629 163, (WORKING AS HEADMISTRESS, LMS TAMIL HIGH SCHOOL, PARASSALA, THIRUVANANTHAPURAM-695 502.** **RP.Nos.639/2020 & - 4 - 678/2020** **3 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, HIGHER SECONDARY DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **4 THE DIRECTOR OF GENERAL EDUCATION, (HIGHER SECONDARY WING), JAGATHY, THIRUVANANTHAPURAM-695 014. (SHOWN IN THE WRIT APPEAL CAUSE TITLE AS DIRECTOR OF HIGHER SECONDARY EDUCATION, DIRECTORATE OF HIGHER SECONDARY EDUCATION , HOUSING BOARD BUILDING, THIRUVANANTHAPURAM-695 001).** **5 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, OFFICE OF THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, CORPORATION BUILDING, THIRUVANANTHAPURAM-695 033.** **BY ADVS. R1 BY SRI.G.SUDHEER R2 BY SRI.JOSEPH GEORGE R3 TO R5 BY SENIOR GOVT. PLEADER SMT.REKHA C. NAIR** **THIS REVIEW PETITION HAVING COME UP FOR ORDERS ON 04.11.2020, ALONG WITH R.P.No.639/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RP.Nos.639/2020 & - 5 - 678/2020** **K. Vinod Chandran & Shircy V., JJ. -------------------------------------------R.P.No.639 of 2020 in W.A.No.1833 of 2019 & R.P.No.678 of 2020 in W.A.No.1820 of 2019 -------------------------------------------Dated, this the 04[th] day of November, 2020** ## **ORDER** ## **Vinod Chandran, J.** **The review petitions are filed by the additional respondent, who was not a party to the writ petitions, but sought and obtained impleadement as 6[th] and 5[th] respondent in the respective writ appeals. The writ appeals were filed by the Manager of the School, from a common judgment in two writ petitions; one filed by the Manager and the other by the Headmistress of a Secondary School of the Educational Agency. The review petitioner is a Higher Secondary School Teacher ['HSST' for brevity], who was appointed as the Principal-in-Charge in the Higher Secondary School. The Headmistress claimed that the vacancy arising in the post of Principal in the HS School has to be conceded to the Headmaster/Headmistresses [H.M] in the Secondary Schools as per Chapter XXXII of the Kerala Education Rules, which provides a ratio of 2:1 between HSSTs and HMs.** **RP.Nos.639/2020 & - 6 - 678/2020** **2. When the HSST, the review petitioner, was appointed as Principal-in-Charge without making a regular appointment, the HM approached the Director of Higher Secondary Education for consideration to the post of Principal. This Court had also in W.P(C) No.21788 of 2017 directed such consideration. The Joint Director directed appointment of the HM to the post of Principal. The Manager filed an appeal to the Government and the HSST filed a revision; both of which were pending before the Government. The HM filed a writ petition to implement the order of the Joint Director and the Manager filed a writ petition challenging Rule 4, which stipulates the 2:1 ratio. The learned Single Judge negatived the challenge against the ratio and directed implementation of the order of the Joint Director. The Manager filed appeals against both the said decisions.** **3. By the common judgment under review, the challenge against the rule was rejected. As to the implementation of the order of the Joint Director, the Manager contended that there were other persons holding the post of HM in the Corporate Agency who are entitled to be considered even if the ratio is conceded to HMs. Only noticing such contention, this Court while disposing of the** **RP.Nos.639/2020 & - 7 - 678/2020** **appeal from the directions issued to appoint the H.M; the Manager was directed to produce the seniority list as on the date of arising of vacancy of Principal, before the Government and if there are other eligible HMs, the Government was directed to ensure a proper selection to be conducted by the Manager or else the writ petitioner-HM; Sreelatha P.R., was directed to be appointed.** **4. The judgment was taken up before the Hon'ble Supreme Court and the Special Leave Petition was sought to be withdrawn with liberty to move a review, by the HSST-review petitioner. Smt.Jenziya P.A., learned Counsel appearing for the review petitioner raises two grounds for review, one that the present vacancy arising in the post of Principal, even as per the ratio has to be conceded to a HSST. The next ground is that Sreelatha P.R. is not qualified. For advancing the first contention, the learned Counsel would draw our attention to the table as available in the memorandum of review. The second contention is advanced on the basis of Annexures II and III produced in the review petition.** **5. We notice the decision in** _**State of West Bengal v. Kamal Sengupta**_ **[** _**(2008) 8 SCC 612**_ **], which dilated on the contours of a review petition. It was held so :** **RP.Nos.639/2020 & - 8 - 678/2020** **“18. Since the Tribunal’s power to review its order/decision is akin to that of the civil court, statutorily enumerated and judicially recognised limitations on the civil court’s power to review the judgment/decision would also apply to the Tribunal’s power under Section 22(3)(** _**f**_ **) of the Act. In other words, a tribunal established under the Act is entitled to review its order/decision only if either of the grounds enumerated in Order 47 Rule 1 are available. This would necessarily mean that a tribunal can review its order/decision on the discovery of new or important matter or evidence which the applicant could not produce at the time of initial decision despite exercise of due diligence, or the same was not within his knowledge or if it is shown that the order sought to be reviewed suffers from some mistake or error apparent on the face of the record or there exists some other reason, which, in the opinion of the Tribunal, is sufficient for reviewing the earlier order/decision”.** **The contention raised in the present review are those which could have been advanced at the time of hearing of the appeals. There is no ground raised as to why the same was not advanced and substantiated when the appeals were argued. It is also pertinent that the judgment in the writ petitions itself had directed appointment of** **RP.Nos.639/2020 & - 9 - 678/2020** **Sreelatha P.R., which was not challenged by the review petitioner. It is the contention of the learned Counsel that the review petitioner was not made a party therein. However, he was aware of the appeal filed by the Manager and he got himself impleaded in the appeals. He did not choose to file an appeal with leave, from the judgment of the learned Single Judge. His role in the appeals, in which he got himself impleaded, was nominal insofar as supporting the Manager. The Manager/appellant did not have either of the above contentions in the appeal. The Manager's challenge was against the rule stipulating a ratio and on the same being rejected, the plea was only that there are other eligible HMs. From the above facts, we are convinced that a review does not lie.** **6. Be that as it may, the first contention urged in review is based on a table of persons who occupied the post of Principal in the Higher Secondary School; both HSSTs and HMs. The table itself is not in the chronological order, nor is it substantiated by any material documents. The second contention is based on a** _**e-**_ **mail communication issued by the Help Desk of the Mahatma Gandhi University, marked as Annexure III, in response to Annexure II query. This Court cannot place any reliance on the same. We also** **RP.Nos.639/2020 & - 10 - 678/2020** **notice the submission of the learned Counsel appearing for the HM that the Eligibility Certificate issued by the M.G. University was produced in W.P(C).No.21788 of 2017 in which there was a direction issued to consider the claim of HM after this Court was satisfied of the eligibility. We have called for the Judges Papers and perused Exhibit P5 produced in W.P(C).No.21788 of 2017. Exhibit P5 is the Eligibility Certificate issued by the MG University, which certifies the qualification obtained by the HM from Manonmaniam Sundaranar University as equivalent to the B.Ed degree of M.G. University. There is also no error apparent discernible from the records of the case. We find no ground to review our judgment and reject the review petitions** _**in limine**_ **.** **Sd/K.VINOD CHANDRAN JUDGE Sd/SHIRCY V. JUDGE** **Vku/-** **RP.Nos.639/2020 & - 11 - 678/2020** ## **APPENDIX OF R.P.NO.639/2020** ## **PETITIONER'S/S ANNEXURES:** **ANNEXURE I TRUE COPY OF THE ORDER IN SPECIAL LEAVE TO APPEAL (C) NO(S) 5379-5380/2020 DATED 06.03.2020 OF THE HON'BLE SUPREME COURT OF INDIA. ANNEXURE II TRUE COPY OF THE APPLICATION THROUGH GMAIL BY ADV.P.A. NOOR MUHAMMED DATED 06.11.2019. ANNEXURE III TRUE COPY OF THE ANSWER TO THE QUESTION THROUGH GMAIL DATED 07TH NOVEMBER 2019.** **RP.Nos.639/2020 & - 12 - 678/2020** ## **APPENDIX OF R.P.NO.678/2020** ## **PETITIONER'S/S ANNEXURES:** **ANNEXURE I TRUE COPY OF THE ORDER IN SPECIAL LEAVE TO APPEAL (C) NO (S) 5379-5380/2020 DATED 6.3.2020 OF THE HON'BLE SUPREME COURT OF INDIA.** **ANNEXURE II TRUE COPY OF THE APPLICATION THROUGH GMAIL BY ADFV P.A.NOOR MUHAMED DATED 6.11.2019.** **ANNEXURE III TRUE COPY OF THE ANSWER TO THE QUESTION THROUGH GMAIL DATED 07TH NOVEMEBER 2019.** **[ TRUE COPY ]**