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High Court of KeralaSingle JudgeReview petition allowed; judgment in OP 3016/20...

Secretary to Government, Higher Education (G) Department, Government of Kerala v. Mahatma Gandhi University, Kottayam & M.A. College of Engineering, Kothamangalam and others

Case / Petition Number:RP.No.1328 of 2008(H) in O.P.No.3016 of 2002

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • THOTTATHIL B.RADHAKRISHNAN
Judgment Date
2011-11-08
Court Decision / Holding
The review petition is allowed. The judgment in O.P.3016/2002 is vacated without expressing any opinion on merits. The O.P.3016/2002 will be listed for hearing, with directions for the University to file affidavits and complete the requisite actions on promotions within specified timelines.
Final Disposition
Review petition allowed; judgment in OP 3016/2002 vacated; case to be re-listed for hearing

Parties to the Case

Appellants / Petitioners

  • THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION (G) DEPARTMENT, GOVT. OF KERALA, THIRUVANANTHAPURAM
  • THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM
  • THE REGIONAL DIRECTOR OF TECHNICAL EDUCATION, KOTHAMANGALAM

Respondents

  • SRI.MATHEW BENADICT K.A., Professor, Mar Athanaceious College of Engineering, Kothamangalam
  • SRI.K.U.ABRAHAM, Professor MACE, Kothamangalam
  • SRI.RAMAN NAMPOOTHIRI.N., Professor MACE, Kothamangalam
  • SRI.JOSEPH KUNJU PAUL,.C., Assistant Professor MACE, Kothamangalam
  • SRI.ROY N.MATHEWS, Assistant Professor MACE, Kothamangalam
  • SRI.M.A.ABRAHAM, Assistant Professor MACE, Kothamangalam
  • SRI.REJI MATHEW, Assistant Professor MACE, Kothamangalam
  • SRI.DEVI PRASAD VARMA P.R., Assistant Professor MACE, Kothamangalam
  • SRI.BINU C.YOLDOSE, Assistant Professor MACE, Kothamangalam
  • SRI.KEMTHOSE P.PAUL, Assistant Professor MACE, Kothamangalam
  • DR.C.J.JOSEPH, Professor MACE, Kothamangalam
  • SRI.M.M.POULOSE, Assistant Professor MACE, Kothamangalam
  • SMT.B.GEETHA, Assistant Professor MACE, Kothamangalam
  • SRI.PAUL ANTONY, Professor MACE, Kothamangalam
  • SRI.M.L.PAUL, Professor MACE, Kothamangalam
  • SRI.K.RADHAKRISHNAN, Assistant Professor MACE, Kothamangalam
  • SMT.SALICE PETER, Assistant Professor MACE, Kothamangalam
  • SMT.SHEELA JOSEPH, Assistant Professor MACE, Kothamangalam
  • SMT.ELESABETH SEBASTIAN, Assistant Professor MACE, Kothamangalam
  • SRI.RAJAN P.THOMAS, Assistant Professor MACE, Kothamangalam
  • SMT.ALICEKUTTY PHILIP, Professor MACE, Kothamangalam
  • SRI.PAULSON JOHN, Assistant Professor MACE, Kothamangalam
  • SMT.LEENA THOMAS, Assistant Professor MACE, Kothamangalam
  • MAHATMA GANDHI UNIVERSITY, KOTTAYAM
  • M.A.COLLEGE OF ENGINEERING, KOTHAMANGALAM

Legal Representation & Advocates

Counsels for Petitioners

  • • Government Pleader

Counsels for Respondents

  • • SRI.T.A.SHAJI S.C.MGU(NO MEMO)

Case Synopsis & Summary

This is a post-2002 review petition filed by the State challenging the judgment in OP No.3016 of 2002. The petition concerns promotions of twenty-three teachers in an aided technical college and the University’s authority to approve such promotions. Initially, the High Court’s judgment had purportedly granted the petitioners relief on the premise that the University had approved the promotions. Subsequently, the University filed an affidavit stating that no such approval had been granted, and that approvals would arise only after the Government fixed the ratio per AICTE norms. The Government contends that the Court’s reliance on the University’s alleged approval was erroneous, and that misrepresentation by the University justifies a review under Article 226 of the Constitution. The court references Secretary, Ministry of Health & F.W.D. v. Aswathy Elsa Mathew to justify the possibility of reviewing a judgment when fundamental facts were not disclosed. While urging expediency and acknowledging the financial implications for public funds, the judge directs the review petition to be allowed, vacating the original judgment without deciding the merits, and to re-list the O.P. for hearing. The order also requires affidavits and compliance actions by dates, signaling a fresh consideration of (i) University approvals and (ii) final action on promotions."

Provisions of Law Cited

Article 226 of the Constitution of IndiaCode of Civil Procedure

Submissions & Arguments

Contentions of Appellants / Petitioners

The Government contends that the 2002 writ petition was decided on an erroneous premise that the University had approved the promotions. The University subsequently disclosed that no approvals had been granted and that approvals would arise only after the Government fixes the ratio under AICTE norms. It relies on Article 226 read with the Constitution and submits that misrepresentation by the University warrants a review to correct the record. Citing Secretary, Ministry of Health & F.W.D. v. Aswathy Elsa Mathew (2008 (2) KLT 670), the Government argues that this Court possesses a power to review and rectify fundamental factual errors that influenced the decision. The Government emphasizes the need to protect the public purse and ensure that any relief granted is grounded in actual approvals, not on misstated facts. It also directs the matter back to the University to furnish up-to-date affidavits and to finalize action on promotions within set time frames to avoid continued financial exposure.

Contentions of Respondents

The respondents (teachers) contend that the 2002 writ petition petitioned for relief predicated on the promotions having been approved by the University. They argue that the University’s approvals were in place and that the Government’s attempt to review the judgment would unjustly undo accrued benefits and undermine reliance on the University’s actions. They maintain that the Court’s earlier relief was justified on the basis of the University’s approvals and that the University’s later disclosures do not negate the relief already granted. They further assert that the Government cannot use a review petition to circumvent the peace of mind and legitimate expectations created by the established judgment. They urge the Court to retain the findings and avoid reopening the merits while dismissing the review as unsustainable.”},

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Secretary, Ministry of Health & F.W.D. v. Aswathy Elsa Mathew2008 (2) KLT 670PositiveCited to justify the Court’s power of review under Article 226 to correct an erroneous premise arising from undisclosed facts in the University’s affidavits.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 RP.No. 1328 of 2008(H) ------------------------------AGAINST THE JUDGEMENT IN OP.3016/2002 .................... REVIEW PETITIONERS/RESPONDENTS 1 TO 3: ---------------------------------------------------------------- 1. THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION (G) DEPARTMENT, GOVT. OF KERALA, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. 3. THE REGIONAL DIRECTOR OF TECHNICAL EDUCATION, KOTHAMANGALAM. BY GOVERNMENT PLEADER RESPONDENTS/PETITIONERS & RESPONDENTS 4 & 5: ---------------------------------------------------------------------------- 1. SRI.MATHEW BENADICT K.A., PROFESSOR, MAR ATHANACEIOUS COLLEGE OF ENGINEERING, KOTHAMANGALAM. 2. SRI.K.U.ABRAHAM, PROFESSOR MACE, KOTHAMANGALAM. 3. SRI.RAMAN NAMPOOTHIRI.N., PROFESSOR MACE, KOTHAMANGALAM. 4. SRI.JOSEPH KUNJU PAUL,.C., ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 5. SRI.ROY N.MATHEWS,ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 6. SRI.M.A.ABRAHAM, ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 7. SRI.REJI MATHEW, ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 8. SRI.DEVI PRASAD VARMA P.R., ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 9. SRI.BINU C.YOLDOSE, ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 10. SRI.KEMTHOSE P.PAUL, ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 11. DR.C.J.JOSEPH,PROFESSOR MACE, KOTHAMANGALAM. 12. SRI.M.M.POULOSE, ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 13. SMT.B.GEETHA, ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 14. SRI.PAUL ANTONY, PROFESSOR MACE, KOTHAMANGALAM. 15. SRI.M.L.PAUL, PROFESSOR MACE, KOTHAMANGALAM. 16. SRI.K.RADHAKRISHNAN, ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 17. SMT.SALICE PETER, ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 18. SMT.SHEELA JOSEPH, ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 19. SMT.ELESABETH SEBASTIAN, ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 20. SRI.RAJAN P.THOMAS, ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 21. SMT.ALICEKUTTY PHILIP, PROFESSOR MACE, KOTHAMANGALAM. 22. SRI.PAULSON JOHN, ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 23. SMT.LEENA THOMAS, ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 24. MAHATMA GANDHI UNIVERSITY, KOTTAYAM REP. BY ITS REGISTRAR. 25. M.A.COLLEGE OF ENGINEERING, KOTHAMANGALAM, REP. BY ITS SECRETARY AND CHAIRMAN. BY SRI.T.A.SHAJI S.C.MGU(NO MEMO) THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 08/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **THOTTATHIL B.RADHAKRISHNAN, J.** ----------------------------------R.P.No.1328 OF 2008 IN O.P.No.3016 OF 2002 -----------------------------------Dated this the 8[th] day of November, 2011 ## **O R D E R** Following the earlier order, the 24[th] respondent M.G.University has filed an affidavit though the Registrar, stating, among other things, that the appointment of the writ petitioners were not approved by the University. Recording this, the only course open is to re-open the judgment sought to be reviewed. Hence, this review petition is allowed vacating the judgment in O.P.3016/02, without expressing anything on merits. The O.P. will be listed for hearing. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.8/11. RP.1328/08 2 ## **THOTTATHIL B.RADHAKRISHNAN, J.** ----------------------------------- R.P.No.1328 OF 2008 IN O.P.No.3016 OF 2002 -----------------------------------Dated this the 1[st] day of July, 2011 ## **O R D E R** - 1.This is an application filed by the State seeking review of judgment. - 2.Twenty Three teachers of an aided technical college sought relief when they faced the situation of being deprived of the benefit of approval of their promotions which the management had given them. 3. The writ petition was filed in 2002. The Government, who is ultimately liable to pay the amounts towards pay and allowances, had filed a counter affidavit contesting the alleged entitlement of the writ petitioners. The matter was taken up for final hearing in 2007. The Mahatma Gandhi RP.1328/08 3 University, which is the competent authority to approve the appointments in terms of the University Laws stood as a mute spectator at the hearing of the case. It never brought to the notice of the court that it had not issued any approval orders for the appointments. The law is well settled that it is for the University to approve the appointment of a college teacher. The judgment sought to be reviewed was issued, giving the petitioners the benefit claimed in the writ petition, on the premise that it is not in dispute that the University had approved the appointments. 4.With the passage of time, faced with the financial obligations arising out of the judgment, the Government have filed this review. Ultimately, it was noted that in the review petition, the Government relied on a communication of the University, issued after the judgment, to the effect that the proposal for approval of promotions mentioned in the original petition is pending with the University for approval. The cat was apparently peeping out of the bag. Yet the RP.1328/08 4 University did not disclose the entire relevant facts to this Court. Remember, the teachers are here from 2002. Therefore, this Court had to issue an order on 27.1.2010 requiring the University to state on the question of approval of promotions. It is only thereafter that the University has now come up with the affidavit to the effect that the promotions have not been approved by the University since, according to it, the question of approval would arise only after the Government fixes the ratio for Professors, Assistant Professors, Lecturers etc. as per the AICTE norms. 5.Having thus seen that the judgment sought to be reviewed was issued on the erroneous premise that the University had granted approval to the promotions, sufficient grounds are made out to review the judgment under the power of review traceable to Article 226 of the Constitution of India, having regard to the judgment in **Secretary, Ministry of Health & F.W.D.** v. **Aswathy Elsa Mathew** [2008 (2) KLT 670], relied on by the learned counsel for the teachers. It also RP.1328/08 5 needs to be noticed that he relies on that judgment criticizing the Government of having wrongly invoked the power of review referable to the Code of Civil Procedure to file this review petition. Be that as it may, I am inclined to think that the life span and energy of teachers are to be spent in colleges rather than forcing them to be litigating in courts. In the unfortunate event of a litigation, they should be given the verdict. But, when the University did not disclose to the court the fact that the appointments were not approved, the teachers had suffered. May be this is a case where the University could be taken to have not acted diligently in functioning as a statutory body as is expected from it. The situation may visit them with an order of costs. There are 23 teachers. Even if each of them is to be paid at least Rs.5,000/- towards costs, ultimately, that amount will also have to be paid off from the public funds. 6.In the very peculiar facts and circumstances as noted above, the review petitioner is directed to file an affidavit within a RP.1328/08 6 period of 45 days from now, without fail, as to the final action on the matters which it is expected to do, as stated in the affidavit filed by the 4[th] respondent M.G. University and clear the smug, paving way for the University taking up the matter for approval so that the teachers can have a decision without delay. The review petitioner is directed to file an affidavit of compliance of this order without fail on or before 18.8.2011 with copy to the counsel for the University, who, in turn, will ensure that any action by the University on the basis of Government order also follows within a further period of one month. The affidavit of the Registrar of the University in that regard shall be on board without fail on or before 10.10.2011. Post for further consideration on 14.10.2011. H/o. copy to all sides. THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.7/7.