State of Kerala and Others v Bibin Jose Mathews and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY ,THE 04TH DAY OF JANUARY 2019 / 14TH POUSHA, 1940** ## **RP.No. 1097 of 2018 IN WP(C). 37959/2017** **AGAINST THE ORDER/JUDGMENT IN WPC 37959/2017 of HIGH COURT OF KERALA DATED 13-12-2017** **REVIEW PETITIONER/S:** - **1 STATEOF KERALA AND OTHERS AGED 1 YEARS REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION (A) DEPARTMENT, GOVERNMENT SECRETARIAT ANNEX II, THIRUVANANTHAPURAM, PIN - 695001** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHY, THIRUVANANTHAPRAM, PIN - 695 014.** - **3 THE DEPUTY DIRECTOR OF EDUCATION PATHANAMTHITTA AT THIRUVALLA, PIN - 689 101.** - **4 THE DISTRICT EDUCATIONAL OFFICER PATHANAMTHITTA, PIN - 689 645.** ## **BY ADV. GOVERNMENT PLEADER** R.P.No.1097/18 2 ## **RESPONDENTS:** **1 BIBIN JOSE MATHEWS AND OTHERS HIGH SCHOOL ASSISTANT (PHYSICAL SCIENCE), REV. DR.C.T.EAPEN MEMORIAL ST.THOMAS VOCATIONAL HIGHER SECONDARY SCHOOL, PANNIVIZHA, ANANDAPPALLY P.O., ADOOR, PATHANAMTHITTA, PIN - 691 525 2 JULIE JOHN AGED 35 YEARS HIGH SCHOOL ASSISTANT (NATURAL SCIENCE), RE.DR.C.T.EAPEN MEMORIAL ST.THOMAS VOCATIONAL HIGHER SECONDARY SCHOOL PANNIVISHA, ANANDAPPALLY P.O., ADOOR, PATHANAMTHITTA, PIN - 691 525. 3 MANAGER REV.DR.C.T.EAPEN MEMORIAL ST.THOMAS VOCATIONAL HIGHER SECONDARY SCHOOL PANNIVIZHA, ANANDAPPALLY P.O., ADOOR, PATHANAMTHITTA DISTRICT, PIN - 691 523. BY ADVS. JOHN JOSEPH VETTIKAD SRI.K.S.BHARATHAN SRI.K.S.BHARATHAN SRI.C.JOSEPH JOHNY** ## **OTHER PRESENT:** ## **VINITHA B GP** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 28.11.2019, THE COURT ON 04.01.2019 PASSED THE FOLLOWING:** R.P.No.1097/18 3 ## **O R D E R** 1. This review petition is filed by respondents 1 to 4 in the writ petition on the ground that after the judgment dated 13.12.2017, the Government had issued Annexure A1 clarification dated 14.2.2018 which has a bearing on the issue decided in the writ petition. The petitioners in the writ petition were appointed as HSA (Physcial Science) and HSA (Natural Science) on 1.6.2016 and 10.6.2016 respectively. It is stated that the appointment was against sanctioned post available on the basis of student strength. The 1[st] respondent herein was appointed against a retirement vacancy of Beena Mathew while the 2[nd] respondent was appointed against an additional post sanctioned for the year 2016-2017 on the basis of student strength in respect of the said year. Approval was rejected for the appointments which led to the filing of a revision petition before the Government. This Court, by Exhibit P1 judgment, directed the consideration of the revision petition filed by the aggrieved teachers. Ext.P2 order was passed by the Government in revision. It was held that the school in question was a newly opened school and uneconomic school and one HSA Maths, who was a protected teacher, was working in the school. It is stated R.P.No.1097/18 4 that the number of students during the academic year 2016-2017 was 63 and during academic year 2017-2018 was 113. It was therefore held that the school was not uneconomic and since the protected teacher was already working in the school, the appointment is liable to be approved. When the direction in Exhibit P2 was not complied with by the DEO who sought further clarification from the Government, the teachers approached this Court and the judgment under review was passed directing the implementation of Exhibit P2, which was an order passed in statutory revision. 2. It is contended in the review petition that Annexure 1 order was thereafter passed by the Government on the request for clarification by the DEO. Exhibit P2 order was suo moto reviewed without notice and the Government found that the school belong to the category of newly opened school and all vacancies were therefore liable to be filled by appointing protected teachers. The learned Government Pleader submits that in the light of the G.O. recalling Exhibit P2, the direction in the judgment under review to implement Exhibit P2 is erroneous and is liable to be recalled. R.P.No.1097/18 5 3. A counter affidavit has been placed on record by the respondents. It is contended therein that the Government has no power to review an order passed in revision under Rule 92 of Chapter XIVA Kerala Education Rules, 1959 (KER for short). Moreover Annexure A1 is an order cancelling Exhibit P2 which is issued without hearing the parties and is completely non est in law. The contention in Annexure 1 is to the effect that amendment to Rule 7(3) of Chapter XXI of KER having been incorporated, all appointment are liable to be made in terms of the said amendment. However, the said amendment itself is under challenge at the instance of the 3[rd] respondent Manager and this Court has ordered _status quo_ as regards the applicability of the said amendment. It is, therefore, contended that the review petition is devoid of merits and is liable to be dismissed. 4. A review petition is maintainable against the judgment in the writ petition only on the limited grounds of error apparent on the face of the record or discovery of a fact which could not be brought to the notice of the Court, or for any other sufficient R.P.No.1097/18 6 reason. In the instant case, nothing has been brought to my notice to suggest that there was any error of fact or law which vitiated the judgment in question. There is no power in the Government to review an order passed in a statutory revision under Rule 92 of Chapter XIVA KER. This point is squarely covered by a Division Bench of this Court in **Anilkumar P v. State of Kerala and others** [2009(3) KHC 596] wherein it was held that the Government has no power to review an order passed in revision and such an order would be _ab initio_ void. Even if the reasoning in Annexure 1 is taken note of, it is apparent that Annexure 1 is an order which was passed after the rendering of the judgment, that too, without notice to the concerned teachers or the Manager and would therefore be untenable on that ground alone. Moreover, the amendment to the KER which is relied on in Annexure 1 was already under challenge before this Court at the instance of the Manger of the school and an order of status quo has been issued by a Division Bench of this Court. In the above factual situation, I am of the opinion that the review petition itself is not maintainable on the ground that subsequent order has been passed by the Government after the judgment under review had been R.P.No.1097/18 7 pronounced. The review petition therefore fails and the same is accordingly dismissed. Sd/- **Anu Sivaraman, Judge** sj R.P.No.1097/18 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **ANNEXURE-I A TRUE COPY OF THE GOVERNMENT ORDER DATED 14/02/2018.** **ANNEXURE-II TRUE COPY OF GO(RT) NO.2673/2018/G.EDN. DATED 17/07/2018.** **ANNEXURE-III TRUE COPY OF ERRATUM GO(RT) NO.2795/2018/G.EDN. DATED 24/07/2018.** **RESPONDENTS' EXHIBITS:** **ANNEXURE-R1(A)** TRUE COPY OF GO(RT) NO.3241/2017/G.EDN. DATED 18/09/2017. **ANNEXURE-R1(B)** TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 20/11/2017 IN WP(C) NO.29642/2016(E). **ANNEXURE-RA(C)** TRUE COPY OF THE GO(P) NO.46/2006/G.EDN. DATED 01/02/2006. **ANNEXURE R1(D)** TRUE COPY OF THE PROCEEDINGS ORDER NO.B18549/2017(H) DATED 13/07/2017 OF THE DEPUTY DIRECTOR OF EDUCATION, PATHANAMTHITTA AT THIRUVALLA, THE 3RD REVIEW PETITIONER. **ANNEXURE-R1(E)** TRUE COPY OF THE JUDGMENT DATED 23RD JULY 2018 IN CONTEMPT OF COURT CASE (CIVIL) NO.391/2018. **ANNEXURE-R1(F)** THE TRUE COPY OF THE LETTER NO.H2/42500/2018/DPI DATED 12/07/2018 OF THE DIRECTOR OF PUBLIC INSTRUCTION. **ANNEXURE-R1(G)** TRUE COPY OF GO (RT) NO.2059/2018/G.EDN. DATED 04/06/2018. **ANNEXURE-R1(H)** TRUE COPY OF THE GO (RT) NO.758/2016/G.EDN. DATED 24/02/2016. True copy PS to Judge