Volga K. and Sarath Maria S.B. v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ## **`&`** ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 9[TH] DAY OF FEBRUARY 2023 / 20TH MAGHA, 1944 RP NO. 785 OF 2022 ``` ``` AGAINST THE JUDGMENT WA 455/2022 OF HIGH COURT OF KERALA ``` ## **`REVIEW PETITIONER/S:`** - **`1 VOLGA K., AGED 19 YEARS D/O. SIVADASAN K.K., KATTUNILATH HOUSE, PONNURUNNI, VYTILA P.O., ERNAKULAM DISTRICT682019.`** - **`2 SARATH MARIA S.B., AGED 18 YEARS D/O.SURESH BABU, THUNDITHARA, NEAR KARTHIKA HOSPITAL, AROOR P.O., ALAPPUZHA DISTRICT-688534. BY ADVS. T.N.JAYADEVAN D.JOTHIKUMAR MINU SIBY ROY`** ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.`** - **`2 THE DIRECTOR OF TECHNICAL EDUCATION, PADMAVILASAM ROAD, FORT, NALUMUKKU, THIRUVANANTHAPURAM-695023.`** - **`3 THE SECRETARY TO THE GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.`** - **`4 THE DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICATL EDUCATION, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695011.`** - **`5 THE COMMISSIONER FOR ENTRANCE EXAMINATION, 5TH FLOOR, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM-695001.`** R. P. No. 785 of 2022 -2- - **`6 APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY, REPRESENTED BY REGISTRAR, CET CAMPUS, ALTHARA ROAD, AMBADY NAGAR, THIRUVANANTHAPURAM-695016.`** - **`7 KERALA UNIVERSITY OF HEALTH SCIENCES, REPRESENTED BY REGISTRAR, MULANKUNNATHUKAVU, MEDICAL COLLEGE P.O., THIRSSUR-680596.`** - **`8 KERALA AGRICULTURAL UNIVERSITY, REPRESENTED BY REGISTRAR, MAIN CAMPUS, VELLANIKKARA, THRISSUR-680656.`** - **`9 KERALA VETERINARY AND ANIMAL SCIENCES UNIVERSITY, REPRESENTED BY REGISTRAR, POOKOT, LAKKIDI P.O., WAYANAD-673576.`** - **`10 KERALA UNIVERSITY OF FISHERIES AND OCEAN STUDIES, REPRESENTED BY REGISTRAR, PANANGAD ROAD, MADAVAN JUNCTION, KOCHI-682506.`** - **`11 THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.`** - **`BY ADVS. SRI. P.G.PRAMOD, GOVERNMENT PLEADER(B/O) SRI. P.SREEKUMAR, SC, KERALA UNIVERSITY OF HEALTH SCIENCES SRI. MANU GOVIND`** ``` THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON ``` ``` 09.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` R. P. No. 785 of 2022 -3- ## **O R D E R** ## S. Manikumar, C. J. Instant review petition is filed against the judgment in W. A. No. 455 of 2022 dated 13.06.2022, on the grounds, inter alia, pointing out the reservation pattern settled by the Hon’ble Apex Court, as ## illustrated under:- |Open Seats (State Merit Seats)|50%|General| |---|---|---| |EWS|10%|Vertical| |OBC|30%|Vertical| |SCST|10%|Vertical| |PWD 5%||Horizontal| |Special Reservation||Horizontal| |Total|100%|| 2. Petitioners have contended that 50% seats reserved for the EWS, OBC and SCST category is including the 5% seats earmarked for PWD candidates from these categories. PWD candidates belonging to EWS, OBC and SCST should be accommodated horizontally against the seats reserved for their categories only. The EWS, OBC and SCST category cannot be accommodated against General Seats, failing which there will be reduction in the number of General Seats, consequently there will be corresponding increase in the number of seats reserved for EWS, OBC and SCST category. R. P. No. 785 of 2022 -4- 3. Petitioners have further contended that any reservation other than mandatory reservation or social reservation is horizontal reservation. If reservation to PWD categories are not applied horizontally across the vertical reservation, it will tantamount to Vertical Reservation to PWD and SR Categories, which is not permissible under the Constitution of India. Applying Vertical Reservation to PWD categories would exceed the 50% cap on reservation and reduces the open seats to that extent. Applying horizontal reservation to PWD and SR will not adversely affect their interest. The PWD and SR selected within their respective quota should be adjusted to the category to which they belong by deleting the last rank holder/s from that category. 4. Posed with a question as to whether the grounds raised in the instant review petition, as well as in the writ appeal, are more or less the same, Mr. D. Jothikumar, learned counsel for the review petitioners, fairly admitted that they are more or less the same. 5. Further, posed with another question, as to whether the grounds raised in the writ appeal were addressed by this Court, it is equally the submission of the learned counsel that they were addressed R. P. No. 785 of 2022 -5- and answered. ## 6. At this juncture, we deem it fit to consider a few decisions of the Hon’ble Supreme Court, on the aspect, as to when a review petition is maintainable. ## (i) In **Thungabhadra Industries Ltd.** v. **Govt. of A.P.** [AIR 1964 SC 1372], the Hon'ble Supreme Court held as under: "What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an 'error apparent on the face of the record'. The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an 'error apparent on the face of the record', for 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." ## (ii) In **Parsion Devi and Others** v. **Sumitri Devi and Others** [(1997) 8 SCC 715], relying on the decisions in _**Smt. Meera Bhanjia v. Smt. Nirmala Kumari Chowdhury**_ [AIR 1995 SC 455] and _**Abhiram Taleshwar Sharma v. Abhiram Pishak Shartna and Ors.**_ [(1979) 4 SCC 389], the Hon'ble Supreme Court held as under: "Under Order XLVII, Rule 1, CPC 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 not self evident and has to be detected by a process of R. P. No. 785 of 2022 -6- 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, CPC. In exercise of the jurisdiction under Order XLVII, Rule 1, CPC it is not permissible for an erroneous decision to be reheard and corrected. A review petition, it must be remembered has a limited purpose and cannot be allowed to be an appeal in disguise." ## (iii) In **Lily Thomas** v. **Union of India** , [(2000) 6 SCC 224], the ## Hon'ble Supreme Court held as under: “52. The dictionary meaning of the word "review" is the act of looking, offer something again with a view to correction or improvement". It cannot be denied that the review is the creation of a statute. This Court in **Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji** (AIR 1970 SC 1273), held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error. 56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise.” (iv) In **Kerala State Electricity Board** v. **Hitech Electrothermics & Hydropower Ltd. and Ors.** [(2005) 6 SCC 651], the Hon'ble Apex Court held as under: R. P. No. 785 of 2022 -7- “10.....In a review petition it is not open to this Court to re-appreciate the evidence and reach a different conclusion, even if that is possible. Learned Counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review Petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise.” (v) In **Kamlesh Verma** v. **Mayawati and Others** , [(2013) 8 SCC 320], while examining the scope of review, the Hon'ble Supreme Court held as under: “15. 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 Code of Civil Procedure. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction.” 7. In view of the candid admission of learned counsel for the review petitioners that the issues raised were considered answered, error, if any, in the judgment can only be appealed. R. P. No. 785 of 2022 -8- In the light of the above discussion and decisions, we are not inclined to entertain this review petition. Accordingly, instant review petition is dismissed. **Sd/S. MANIKUMAR CHIEF JUSTICE** **Sd/SHAJI P. CHALY JUDGE** Eb ///TRUE COPY/// P. A. TO JUDGE