T. K. Haridas v. Union of India and others

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 4TH DAY OF JANUARY 2018 / 14TH POUSHA, 1939 RP.No. 669 of 2016 IN WPC. 15325/2010 AGAINST THE JUDGMENT IN WP(C) 15325/2010 of HIGH COURT OF KERALA DATED 10-07-2015 ## REVIEW PETITIONERS/RESPONDENTS 1 TO 5 1. UNION OF INDIA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF INFORMATION AND BROADCASTING, NEW DELHI. 2. PRASAR BHARATI (INDIA'S PUBLIC SERVICE BROADCASTER) NEW DELHI, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER. 3. THE DIRECTOR GENERAL ALL INDIA RADIO, AKASHVANI BHAVAN, NEW DELHI. 4. THE CHIEF ENGINEER (TRAINING) TECHNICAL ALL INDIA RADIO AND DOORDARSHAN, KINGSWAY, DELHI. 5. THE DIRECTOR DOORDARSHAN KENDA, KUDAPPANAKKUNNU, THIRUVANANTHAPURAM. - BY ADVS.SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN ## RESPONDENT/PETITIONER: ## T.K.HARIDAS AGED 51 YEARS, S/O.LATE T.G.KRISHNANKUTTY, SENIOR ENGINEERING ASSISTANT, DOORDARSHAN KENDRA, KUDAPPANAKKUNNU, THIRUVANANTHAPURAM, RESIDING AT 'DHANYA BHAVAN', KARUR, NEAR LAKSHMI VILASAM HIGH SCHOOL, POTHENCODE.P.O., THIRUVANANTHAPURAM DISTRICT. PIN-695 584. BY ADV. SRI.T.C.GOVINDA SWAMY THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 29.11.2017, THE COURT ON 4.1.2018 PASSED THE FOLLOWING: ## **P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.** **-------------------------------------------------R.P.No.669 of 2016** **in W.P.(C).No.15325 of 2010** **-------------------------------------------------DATED THIS THE 4[TH] DAY OF JANUARY, 2018** ## **ORDER** ## **ANIL K. NARENDRAN, J** . This Review Petition filed under Order XLVII Rule 1 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') arises out of the judgment of this Court dated 10.7.2015 in W.P.(C)No.15325 of 2010, a Writ Petition filed by the respondent herein under Articles 226 and 227 of the Constitution of India seeking an order to quash Ext.P1 order of the Central Administrative Tribunal, Ernakulam Bench dated 20.8.2009 in O.A.No.237 of 2008 and to allow the said Original Application as prayed for. The respondent herein, who is working as Senior Engineering Assistant in Doordarshan Kendra, Kudappanakunnu filed O.A.No.237 of 2008 before the Central Administrative Tribunal under Section 19 of the Administrative Tribunal Act, 1985 seeking an order to set aside Annexures A5 and A6 circular memorandum dated 10.3.2008 and 4.4.2008 respectively of the Chief Engineer (Training), the 4[th] petitioner R.P.No.669 of 2016 -2- herein, and to direct the petitioners herein to fill up the posts of Assistant Engineer according to the seniority in the examination and also in the notified vacancy of 135, before conducting any Departmental Competitive Examination pursuant to Annexure A4 office order dated 6.2.2008 of the Director General, the 3[rd] petitioner herein, and Annexure A5 circular memorandum dated 10.3.2008 of the 4[th] petitioner herein. He has also sought for an order directing the petitioners herein to promote him as Assistant Engineer pursuant to his successful completion of the examination and according to his rank in the General quota. 2. The Tribunal by Ext.P1 order dated 20.8.2009 disposed of O.A.No.237 of 2008 with certain directions. The Tribunal in Ext.P1 observed that, even though none of the reliefs sought for by the respondent herein (hereinafter referred to as 'the Applicant') can be allowed, the argument of the learned counsel for the applicant that Annexure R1 Gist of ACR under 75% (Limited Departmental Competitive Examination quota) has been prepared in violation of the principles of natural justice as laid down by the Apex Court in **Devdutt v. Union of India and** R.P.No.669 of 2016 -3- **others (AIR 2008 SC 2513)** cannot be ignored. The applicant was graded as 'good' for three years and 'very good' for two years during the assessment period between 2000-01 to 200405. Though, those gradings were not adverse to him as they were not below the benchmark, there is no denial of the fact that the applicant was denied the right of making representations against the low grading granted to him. Therefore, the Tribunal directed the petitioners herein to communicate all the ACRs of the applicant from 2000-01 to 2004-05 and give him an opportunity to make individual representations against them. On receipt of such representations, the competent authority shall consider them in accordance with the rules and take a decision whether those gradings were warranted in his case or whether they are to be upgraded. A decision in this regard shall be taken by the competent authority within a period of two months from the date of receipt of such representations, under intimation to the applicant. The Tribunal has made it clear that, if the competent authority decides to upgrade the applicant's ACRs to higher grades, a review DPC shall be held to assess his ACRs and R.P.No.669 of 2016 -4- grant him marks accordingly within two months thereafter. Consequently, his position in the select list prepared on the basis of the examination conducted in terms of Annexure A1 circular memorandum dated 20.4.2007 shall also be reviewed and if the case of the applicant comes within the zone of 51 selected candidates, he shall also be given promotion to the post of Assistant Engineer from the date his junior has been given such promotion, with all consequential benefits, except arrears of salary and allowances. 3. Pursuant to Ext.P1 order of the Tribunal, the applicant was communicated with his ACRs for the period from 2000-01 to 2004-05 and he was also given an opportunity to make individual representations against the same. On receipt of such representations, the competent authority rejected the same and the decisions taken thereon were also communicated to him. Challenging Ext.P1 order of the Tribunal, the applicant approached this Court in W.P.(C)No.15325 of 2010, contending that the Tribunal failed to consider the basic questions as to whether the petitioners herein were justified in promoting only 51 R.P.No.669 of 2016 -5- persons, as against 131 vacancies notified, and also whether they were justified in re-notifying the very same vacancies within a short gap of one month, that too, while persons like the applicant who are eligible and qualified to be promoted are available in the list. 4. On 19.5.2010, this Court admitted W.P.(C)No.15325 of 2010 on file and the learned Assistant Solicitor General of India took notice for the 1[st] respondent and the learned Standing Counsel for Prassar Bharathi Broadcasting Corporation of India took notice for respondents 2 to 5. On 18.10.2010, a counter affidavit has been filed on behalf of the petitioners herein, opposing the reliefs sought for in the Writ Petition. The Director, Doordarshan Kendra, Kudappanakunnu, the 5[th] petitioner herein, has filed an affidavit dated 2.8.2014, which was followed by another affidavit dated 14.8.2014. 5. After considering the rival contentions, this Court by the judgment dated 10.7.2015 disposed of W.P.(C)No.15325 of 2010 holding that, the petitioners herein are legally bound to fill up all the available vacancies in the post of Assistant Engineer R.P.No.669 of 2016 -6- under LDCE quota for the year 2006-07, including 65 available vacancies under that quota, already admitted in the affidavit filed by the 5[th] petitioner herein dated 14.8.2004, from the candidates included in Annexure R1 Gist of ACR under 75% Limited Departmental Competitive Examination quota (for brevity, 'LDCE quota') prepared pursuant to Annexure A1 office memorandum dated 20.4.2007, according to their rank in Annexure R1. The competent among the petitioners herein shall determine the actual number of vacancies in the post of Assistant Engineer under LDCE quota for the year 2006-07, in addition to the 65 available vacancies under that quota, already admitted in the affidavit referred to above, within a period of one month from the date of receipt of a certified copy of this judgment, with specific reference of the date of occurrence of vacancy, and thereafter fill up those vacancies by promoting the applicant and others included in Annexure R1 Gist of ACR under 75% LDCE, quota according to their rank in Annexure R1. It was also ordered that, the entire exercise in this regard shall be completed within a period of three months from the date of receipt of a certified copy R.P.No.669 of 2016 -7- of this judgment. Accordingly, O.A.No.237 of 2008 filed by the applicant stands allowed to the extent indicated above. Paragraphs 19 to 21 and the operative portion of the judgment dated 10.7.2015 in W.P.(C)No.15325 of 2010 read thus; “ **19** . When this Court was dissatisfied with the affidavit filed by the 5[th] respondent dated 2.8.2014, a request was made by the learned Standing Counsel for the respondents seeking time to produce the materials and accordingly, the case was removed from the hearing list with a direction to post it after one month. Thereafter, the respondents have not chosen to produce any materials in support of their contention that the actual number of vacancies for the year 2006-07 was only 51. But, from the details of the vacancies notified for the years 2004-05 to 2008-09 furnished in the affidavit of the 5[th] respondent dated 14.8.2014, it could be seen that out of the 82 vacancies shown as 'total vacancies' (i.e., available vacancies) for the year 2006-07, (65 vacancies under LDCE quota and 17 under promotion quota), the respondents filled up only 64 vacancies (51 vacancies under LDCE quota and 13 vacancies under promotion quota) from persons included in Annexure R1 Gist of ACR under 75% LDCE quota. The said fact makes it abundantly clear that out of the 65 vacancies under LDCE quota, 14 vacancies were not filled up from persons included in Annexure R1 Gist. **20.** The materials on record clearly indicate that R.P.No.669 of 2016 -8- immediately after Annexure A4 order dated 6.2.2008 of the 3[rd] respondent filling up 51 vacancies out of the vacancies notified in Annexure A1 for the year 2006-07, the 4[th] respondent issued Annexure A5 circular memorandum dated 10.3.2005, notifying 101 tentative vacancies for the year 2007-08, which consists of 68 vacancies under general category, 13 vacancies for scheduled castes and 20 vacancies for scheduled tribes. Now, going by the stand taken by the 5[th] respondent in his affidavit dated 14.8.2014, there were 85 vacancies for the year 2006-07, out of which 65 vacancies were under LDCE quota and 17 vacancies under promotion quota. Similarly, there were 135 vacancies for the year 2007-08, out of which 101 vacancies were under LDCE quota and 30 vacancies under promotion quota, out of which 87 vacancies were filled up under LDCE quota and 27 vacancies were filled up under promotion quota. We notice that, the respondents have no explanation whatsoever for not filling up all the 65 vacancies available under LDCE quota for the year 2006-07 from those included in Annexure R1 Gist of ACR under 75% LDCE quota, in which event the petitioner, who is Sl.No.62 in that list, would have got promotion. But, for reasons best known to the respondents, only 51 vacancies were filled up by Annexure A4 office order issued by the 3[rd] respondent. Therefore, the conclusion is irresistible that, the remaining 14 vacancies, in which candidates up to Sl.No.65 in Annexure R1 list could have been promoted, were filled up during the R.P.No.669 of 2016 -9- subsequent year, i.e., 2007-08, thereby denying the legitimate right of the petitioner/ applicant and others. We also notice that, in spite of the order passed by this Court dated 4.8.2014 the respondents have not chosen to file an additional affidavit giving the details of the vacancies, along with supporting materials. In the absence of any such materials, we find absolutely no merit in the contention of the respondents that, the actual vacancy for the year 2006-07 was only 82, though 131 vacancies were notified in Annexure A1 circular memorandum. **21.** In such circumstances, the finding of the Tribunal in Ext.P1 order that, none of the reliefs sought for in the O.A. can be allowed, cannot be sustained. We hold that the respondents are legally bound to fill up all the available vacancies in the post of Assistant Engineer under LDCE quota for the year 2006-07, including the 65 available vacancies under that quota, already admitted in the affidavit filed by the 5[th] respondent dated 14.8.2004, from the candidates included in Annexure R1 Gist of ACR under 75% LDCE quota prepared pursuant to Annexure A1 Office Memorandum dated 20.4.2007, according to their rank in Annexure R1. The competent among the respondents shall determine the actual number of vacancies in the post of Assistant Engineer under LDCE quota for the year 2006-07, in addition to the 65 available vacancies under that quota, already admitted in the affidavit referred to above, within a period of one month from the date of receipt of a certified copy of this judgment, with specific reference of the date R.P.No.669 of 2016 -10- of occurrence of vacancy, and thereafter fill up those vacancies by promoting the petitioner/applicant and others included in Annexure R1 Gist of ACR under 75% LDCE, quota according to their rank in Annexure R1. The entire exercise in this regard shall be completed within a period of three months from the date of receipt of a certified copy of this judgment. In the result, this Writ Petition is disposed of allowing O.A.No.237 of 2008 on the file of the Central Administrative Tribunal, Ernakulam Bench, to the extent indicated above.” 6. Now the petitioners herein, who are the respondents in that Writ Petition, are before this Court in this Review Petition seeking review of the judgment of this Court dated 10.7.2015 in W.P.(C).No.15325 of 2010. The Review Petition was filed with a delay of 360 days, which has already been condoned by the order of this Court dated 19.7.2017 in C.M. Application No.176 of 2017. 7. The respondent/petitioner, who is the applicant in O.A.No.237 of 2008, has filed a counter affidavit dated 17.9.2017 in this Review Petition, contending that no valid grounds have been made out for review of the judgment of this Court dated 10.7.2015 in W.P.(C).No.15325 of 2010. 8. Heard the learned Senior Counsel for the petitioners/ R.P.No.669 of 2016 -11- respondents 1 to 5 and also the learned counsel for the respondent/petitioner, who is the applicant in O.A.No.237 of 2008. 9. In this Review Petition, the petitioners have stated that, 82 vacancies that were available in 2006-07 were inclusive of 26 backlog vacancies of SC/ST carried forward from the previous year plus 56 current vacancies. Therefore, it cannot be concluded that 75% of the current vacancies can be filled up under the LDCE quota plus backlog vacancies carried forward, if any. As such, the LDCE quota was only 64 (42 in current year plus 22 carried forward vacancies). Out of the 42 current vacancies under LDCE quota, 33 vacancies were under General category, 3 under SC and 3 under ST category. At the time of advertising the vacancies of 2006-07 the Department had not updated/corrected the tentative vacancies as on 31.3.2006/ 1.4.2007. According to the petitioners, the error had escaped attention resulting in wrong publication of vacancies. The Department could not present these facts before this Court earlier. In paragraph 12 of the Review Petition, the petitioners R.P.No.669 of 2016 -12- ## have provided bifurcation of the aforesaid 82 vacancies of ## Assistant Engineer, for the year 2006-07, which reads thus; “ **12.** The bifurcation of the 82 vacancies (56 current and 26 backlog) in Assistant Engineer grade for the year 200607 are as under: ## **LDCE QUOTA** - LDCE quota (75% of current vacancies : 75% of 56 = 42 - • Break up of the 42 LDCE quota : General:33, SC:6, ST:3 • Carried forward/Backlog ST post : 22 • Total vacancies under LDCE quota : 42+22 = **64** (General:33, SC:6, ST:25) - **Departmental Promotion (DP) quota** : • DP quota (25% of current vacancies) : 25% of 56 = 14 Break up of DP Quota : General:11, SC:2, ST:1 - • Backlog of SC/ST under DP Quota : 4 Total Vacancies under DP quota: 14 + 4= **18** (General:11, SC:2, ST:5) - **Total Vacancies (LDCE+DP quota)** : **82** While conveying approval to conduct the examination for 2006-07, the above facts had escaped attention due to oversight. The records do not suggest that the error was intentional. Due to retirements/resignations/deaths, etc. the 131 vacancies as on 1.7.2006 had increased to 146 as on 1.1.2007. But after making promotions on 5.1.2007 against the LDCE 2005-06, these vacancies had come down to 71 on 5.1.2007 and had rose upto 82 on 1.4.2007. In order to prove this fact beyond doubt, a copy R.P.No.669 of 2016 -13- of the month wise vacancies of AEs right from 31.7.2006 to 30.4.2008 is attached as Annexure R1. This was the only reason for variation between the numbers of vacancies advertised and actually available at the time of promotion in 2006-07 and it is admitted that these facts could not be submitted before the Hon'ble Court earlier for which the petitioners tender their unqualified apology. ## 10. The grounds raised in this Review Petition filed under Order XLVII, Rule 1 of the Code read thus; “ **A.** There was an inadvertent unintentional lapse on the part of the Department in conveying before this Hon'ble Court the actual number of vacancies to be filled through LDCE for the year 2006-07. Since the updated zone-wise vacancies of Assistant Engineer has to be obtained from the 5 zones of All India Radio and Doordarshan, there was delay in collecting the information. As that process was taking time, the number of vacancies were described as tentative when the notification was issued. **B.** In compliance with the directions of this Hon'ble Court, the petitioners had ascertained the actual number of vacancies available for 2006-07 and found that the statement given before this Hon'ble Court in the affidavit dated 14.8.2008 was differing with the actual vacancies. There is no vacancies to promote Shri.T.K.Haridas and 28 others ranked higher to him in the eligibility list. **C.** The vacancy position is detailed below; R.P.No.669 of 2016 -14- |a.|Total No. of vacancies as<br>on 1.1.2007.|:|146<br>(This includes 112 vacancies of<br>2005-06)| |---|---|---|---| |b.|Total No. of vacancies filled<br>on 5.1.2007 due to Limited<br>Departmental Competitive<br>Exam and Departmental<br>Promotions.|:|79 (out of 112)<br>Rest of the vacancies could not<br>be filled due to non-availability<br>of sufficient SC/ST candidates<br>under LDCE & SCF quotas.| |c.|Remaining<br>vacancies<br>(unfilled) as on 5.1.2007.|:|67| |d.|No. of vacancies as on<br>31.1.2007.|:|71 (67+4 fresh vacancies<br>occurred due to retirement/<br>death/resignation)| |e.|No.<br>of<br>vacancies<br>occurred during<br>1.2.2007 to 31.3.2007.|:|11 (occurred due to retirement/<br>Death/resignation)| |f.|Effective vacancies as on<br>1.4.2007 (d+e)|:|(71+11)| Out of the 82 vacancies, 64 were earmarked for LDCE quota and 18 for Departmental Promotion quota. Further, as regards 64 vacancies of LDCE quota, it is informed that 33 vacancies were earmarked for general category, and 6 for SC and remaining 25 for ST category (which included 22 carried forward vacancies of ST category). As such, the case of Shri.T.K.Haridas is to be considered with regard to the aforesaid vacancies under General category, i.e., 33. **D.** The materials now placed before this Hon'ble Court will show that the affidavit submitted by the Department on 14.8.2014 was incorrect on the face of it. Only because of this lapse, that had stated in the affidavit, this Hon'ble Court was pleased to direct to fill up the vacancies as if R.P.No.669 of 2016 -15- there was 65 vacancies under Limited Departmental Competitive Examination (LDCE) quota and in that case the applicant in the O.A. was entitled to get promoted, being ranked 62[nd] in the final merit list. **E.** The actual number of vacancies for promotion to Assistant Engineer grade under LDCE quota for 2006-07 was only 64 which was inclusive of the current as well as backlog vacancies of SC/ST. As such, only 33 vacancies were available for general candidates in 2006-07. As per final results of the LDCE 2006-07, 51 candidates including 33 General candidates were promoted and 13 posts reserved for ST were left unfilled due to non-availability of eligible candidates and were carried forward to 2007-08. Since the applicant Shri.T.K.Haridas belongs to General category and ranked 62 in the final merit list, he could not be promoted against the 33 vacancies. The unfilled vacancies reserved for SC/ST candidates cannot be diverted to General category. Also the vacancies that arose after 31.3.2007 can be filled only by candidates who qualified in the examination held for the year 2007-08. Thus, as matters stood, Shri.Haridas can be promoted as Assistant Engineer only if 29 more vacancies under general category were available in 2006-07 which was actually not there. Even if the 13 unfilled posts reserved for ST were de-reserved, then also Shri.Haridas cannot be promoted as AE.” ## 11. In **Northern India Caterers (India) Ltd. v. Lt.** R.P.No.669 of 2016 -16- **Governor of Delhi (1980 (2) SCC 167)** the Apex Court held that, if the view adopted by the court in the original judgment is a possible view, having regard to what the record states; it is difficult to hold that there is error apparent on the face of the record. 12. In **Smt.Meera Bhanja v. Smt.Nirmala Kumari Choudhury [(1995) 1 SCC 170]** the Apex Court held that, the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1 of the Code. The Apex Court held further that, an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably the two opinions. 13. In **Parsion Devi v. Sumitri Devi (1997 (8) SCC 715)** the Apex Court, in the context of the power of review under Order XLVII Rule 1 of the Code of Civil Procedure, 1908 held that, a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is R.P.No.669 of 2016 -17- 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. In exercise of the jurisdiction under Order XLVII Rule 1 of the Code, it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition has a limited purpose and cannot be allowed to be 'an appeal in disguise'. Later, in **Lily Thomas v. Union of India (2006 (3) SCC 224)** the Apex Court reiterated that, the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. 14. In **Anantha Reddy N. v. Anshu Kathuria (2013 (15) SCC 534)** the Apex Court held that, the review jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order/judgment does not call for review. The mistake apparent on record means that the mistake is selfevident, needs no search and stares at its face. Surely, review R.P.No.669 of 2016 -18- jurisdiction is not an appeal in disguise. The review does not permit rehearing of the matter on merits. 15. In view of the law laid down by the Apex Court in the decisions referred to supra, the review jurisdiction under Order XLVII Rule 1 of the Code is very limited and unless there is mistake apparent on the face of the record, the judgment does not call for review. Further, whilst exercising such power of review, the court cannot be oblivious of the provisions contained in Order XLVII Rule 1 of the Code and that the limits within which the courts can exercise the power of review have been well settled in a catena of decisions. 16. In the instant case, by the judgment dated 10.7.2015, this Court disposed of W.P.(C).No.15325 of 2010 based on the details of the vacancies notified for the years 2004-05 to 2008-09 furnished in the affidavit of the 5[th] respondent dated 14.8.2014. Going by the averments in this Review Petition, the said fact is not in dispute. Now the stand taken in paragraph 6 of this Review Petition is that the statement given before this Court in the aforesaid affidavit dated 14.8.2014 differs with the actual R.P.No.669 of 2016 -19- vacancies. In paragraph 7 of the Review Petition it has also been stated that, the materials placed before this Court will show that the affidavit submitted by the Department on 14.8.2014 was inaccurate on the face of it. 17. As rightly contended in the counter affidavit dated 17.9.2017 filed by the respondent/petitioner, no materials have been produced before this Court in support of the contention that the actual number of vacancies for promotion to Assistant Engineer grade under LDCE quota for the year 2006-07 has been erroneously stated in the affidavit submitted by the Department on 14.8.2014. It is pertinent to note at this juncture that, copy of the month wise vacancies of Assistant Engineer for the period from 31.7.2006 to 30.4.2008, referred to in paragraph 12 of this Review Petition as 'Annexure R1', is also not placed on record. Though sufficient opportunity was given, the petitioners could not point out any error apparent on the face of the record, to review the judgment of this Court dated 10.7.2015, in W.P.(C).No.15325 of 2010. 18. Viewed in the light of the law laid down by the Apex R.P.No.669 of 2016 -20- Court in the decisions referred to supra, none of the grounds raised in this Review Petition fall within the ambit and scope of Order XLVII Rule 1 of the Code. In the result, this Review Petition fails and the same is accordingly dismissed. No order as to costs. Sd/- **P.R. RAMACHANDRA MENON** , **JUDGE** Sd/- **ANIL K. NARENDRAN, JUDGE** dsn True copy P.S. to Judge