Review petitioner sought to set aside a judgment ordering appointment in a school vacancy, alleging superior claims and explaining significant delay. The court dismissed the delay application and review petition due to lack of satisfactory explanation and absence of error apparent on the face of records.
Review petition and application to condone delay dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
FRIDAY, THE 5TH DAY OF OCTOBER 2012/13TH ASWINA 1934
RP.No. 806 of 2012 (I)
AGAINST THE ORDER/JUDGMENT IN WPC.714/2004 DATED 12-10-2011.
REVIEW PETITIONER/5TH RESPONDENT:
SMT.BINU M.R., UPPER PRIMARY SCHOOL ASSISTANT, ST.AUGUSTINE'S HIGH SCHOOL, MURUKKUMPUZHA, THIRUVANANTHAPURAM.
BY ADV. SRI.M.R.RAJESH.
RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 4, 6 & 7:
1. SIMI S., SUJATHA MANDIRAM, THACHARVILAKOM,
PERUMKUZHI P.O., THIRUVANANTHAPURAM-695 305.
2. STATE OF KERALA,
3. DEPUTY DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM – 695 001.
4. DISTRICT EDUCATIONAL OFFICER, STATUE, THIRUVANANTHAPURAM-695 001.
5. THE MANAGER, ST.AUGUTINE'S HIGH SCHOOL,
6. SMT.SHYLAJA CLETUS,
7. SMT.LEKHARANI, UPPER PRIMARY SCHOOL ASSISTANT, ST.AUGUSTINE'S HIGH SCHOOL, MURUKKUMPUZHA, THIRUVANANTHAPURAM-695 302.
R1 BY ADV. MR.B. RAGHUNATHAN. R2 TO R4 BY GOVT. PLEADER MR.M.R. RAJESH. R5 TO R7 BY ADV. MR.P. SANTHOSH KUMAR
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 05-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
rs.
RP.No. 806 of 2012 (I)
APPENDIX
PETITIONER'S ANNEXURES:-
ANNEXURE A COPY OF THE APPOINTMENT ORDER DATED 29/07/2002 ISSUED BY THE 4TH RESPONDENT.
RESPONDENT'S ANNEXURES:- NIL.
//TRUE COPY//
P.A. TO JUDGE
rs.
P.R. RAMACHANDRA MENON, J.
R.P.No. 806 of 2012 in W.P.(C).No. 714 of 2004
Dated this the 5th day of October, 2012
ORDER
The review petition has been filed by the 5th respondent in the writ petition, seeking to set aside the judgment passed by this Court in W.P.(C).No.714/2004, whereby a positive direction was given to the concerned respondents (after setting aside Ext.P10) to appoint the writ petitioner as UPSA in respect of the 1st vacancy arose on 02.06.2003 and to take necessary steps to approve the said appointment and for disbursement of arrears of salary and such other benefits, within the time as specified.
has been filed along with a petition to condone the delay of 274 days in filing the same, stating that the matter could not be
R.P. No. 806 of 2012
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pursued on time as the party was not aware of the proceedings. The explanation for the delay as given in paragraph 5 to 7 of the affidavit in support of the application to condone the delay is extracted below:
“5. The Review Petitioner's cousin brother Adv. A Siji was looking after his case for her through me in the High Court. Even though timely instructions were given to him by me for production of documents/pleadings, they were not intimated to the review petitioner. On the other hand the review petitioner was contacting him and he had assured her that all that is necessary was being done. Whenever the matter was enquired it was assured by him that the case is being taken care of. The above said Adv. Siji is suffering from various ailments and he suffered a stroke and now has virtually stopped his practice.
R.P. No. 806 of 2012
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other than his daughter in law. All this and the bonafide omission on the part of the clerk in noting the list of the case resulted on the judgment under review.
After considering the said version, this Court finds that, it cannot be taken as a satisfactory explanation at all and as such, the review petition is liable to be dismissed on this score alone.
R.P. No. 806 of 2012
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paragraph '6' of the judgment, which reads as follows:
“Despite the completion of service of notice and the pendency of the matter for more than seven years, no counter affidavit has been filed from the part of the respondents particularly the 4th respondent Manager or the contestant respondents 5 to 7”
As such, no case can be built up by the review petitioner, in the absence of any pleading through the review petition, as there is no error apparent on the face of records.
High School Vs. Reji Sagar (2008 (1) KLT 1026) , in paragraph '8' of the judgment passed in the writ petition. In the
R.P. No. 806 of 2012 -5-
above decisions, the scope of Rule 51 B claim, was explained and held that, it was for the manager to inform the vacancy to the party concerned, before making any appointment. It is also true that the said proposition has been recently set aside by the Supreme Court as per the decision reported in Shreejith v. Deputy Director (Education) Kerala (2012 (3) KLT 214 (SC)) observing that the Manager is not bound to run after the legal heirs, if any. But, this cannot have any significance as far as the present case is concerned, in so far as the verdict passed by this Court in the present case, on the basis of the available pleadings and materials on record, particularly, in the absence of any dispute with regard to the averments raised by the petitioner for want of any counter affidavit, despite the fact that, the matter was pending consideration for nearly '7' years.
Control for Cricket in India V. Nethaji Cricket Club (2005
(4) SCC 741) . 'Any other reason' as explained by the Apex Court in the aforesaid decision cannot be made applicable to the case in hand, for the reasons mentioned herein before, especially
R.P. No. 806 of 2012 -6-
the want of necessary pleadings by filing any counter affidavit at any point of time, when the matter was pending consideration for nearly '7' years. The correct legal position has been declared by the Apex Court in another decision reported in Smt. Meera Bhanja V. Smt. Nirmala Kumari Choudhuri (AIR 1995 SC 455) , making it clear that the scope of review shall not be misunderstood as a substitute for appeal.
In the above circumstance, this Court finds that there is no merit or bonafides in the review petition as well. As such, both the application to condone the delay as well as the review petition are held as not sustainable and they are dismissed accordingly.
P.R. RAMACHANDRA MENON, JUDGE.
Kp/-
3 issues framed by the court
Whether the delay in filing the review petition can be condoned on the grounds of miscommunication and non-production of counter affidavit.
Whether the scope of power of review under Article 137 of the Constitution extends to setting aside a judgment in the absence of error apparent on the face of record.
Whether the interpretation of Rule 51 A and Rule 51 B of Kerala School Service Rules affects the outcome of the review petition.
Colour shows how this judgement treated each authority
Baiju Kumar Vs. D.E.O. TrivandrumReferred¶60
Baiju Kumar Vs. D.E.O. Trivandrum (2003 (3) KLT 240)
S.N.G.S. High School Vs. Reji SagarReferred¶60
S.N.G.S. High School Vs. Reji Sagar (2008 (1) KLT 1026)
Shreejith v. Deputy Director (Education) KeralaDistinguished¶60
Shreejith v. Deputy Director (Education) Kerala (2012 (3) KLT 214 (SC))
Board of Control for Cricket in India V. Nethaji Cricket ClubReferred¶64
Board of Control for Cricket in India V. Nethaji Cricket Club (2005 (4) SCC 741) · Who else cites this
Smt. Meera Bhanja V. Smt. Nirmala Kumari ChoudhuriApplied¶67
Smt. Meera Bhanja V. Smt. Nirmala Kumari Choudhuri (AIR 1995 SC 455) · Who else cites this
Simi S.
State of Kerala
P.R. Ramachandra Menon
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
