Dismissed

B.Sudharma v. State of Kerala

Kerala HC1 Oct 2021RP/513/2021

Case brief

AI extract

What is this about?

Review petition dismissing a quo warranto challenge to an appointment was rejected as the High Court found no error apparent on the face of the record. The court clarified that prior observations on the petitioner's status were immaterial to the substantive dismissal based on Article 162 power.

What did the court decide?

Review petition failed and was dismissed; no adverse consequences on the petitioner regarding prior observations.

B.Sudharma Vs State of Kerala — Constitutional and Fundamental Rights | Kerala HC (2021)

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R.P. No. 513/2021 in W.P.(C) No. 35220/2019

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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FRIDAY, THE 1^ST DAY OF OCTOBER 2021 / 9TH ASWINA, 1943

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RP NO. 513 OF 2021

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JUDGMENT DATED 28.01.2021 IN WP(C) 35220/2019 OF HIGH COURT OF KERALA REVIEW PETITIONERS/PETITIONERS IN THE W.P.(C):

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1 B.SUDHARMA,

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AGED 59 YEARS, TMC 36/580, 'NAYANI SHARANYAM',MANATH AYYANTHMOOLA ROAD, TRIKKAKARA, KOCHI – 682 021.

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2 JOSEPH SHAJI GEORGE, JISHA COTTAGE, NEAR R.C. CHURCH, KAYAMKULAM – 690 502.

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3 ASOKAN V.N., ALATHIRIPARAMBIL HOUSE, CHERANALLOOR, KOCHI – 682 024.

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4 RAMACHANDRAN C.P., VENGALIL, CHUNANGAD, OTTAPALAM – 679 511.

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BY ADVS.

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T.V.AJAYAKUMAR P.H.RIMJU(K/504/2014)-21421

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RESPONDENTS/RESPONDENTS IN THE W.P.(C):

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1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIATE, THIRUVANANTHAPURAM – 695 001.

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2 THE SECRETARY TO THE GOVERNMENT OF KERALA, HEALTH & FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM – 695 001.

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3 THE ACCOUNTANT GENERAL (A& E), KERALA, THIRUVANANTHAPURAM

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R.P. No. 513/2021 in W.P.(C) No. 35220/2019

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695 001.

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4 KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM - 695 014.

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5 COMMISSIONER OF FOOD SAFETY, COMMISSIONERATE OF FOOD SAFETY, THYCAUD, THIRUVANANTHAPURAM - 695 014.

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6 K.ANILKUMAR, JOINT FOOD SAFETY COMMISSIONER (ADMINISTRATION AND LEGAL), COMMISSIONERATE OF FOOD SAFETY, THYCAUD, THIRUVANANTHAPURAM - 695 014.

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SRI. TEK CHAND, SR GP FOR R1 TO R3 AND R5, R4 BY SRI.P.C.SASIDHARAN, SC R6 BY SRI.P.NANDAKUMAR

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THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 01.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.P. No. 513/2021 in W.P.(C) No. 35220/2019

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Dated this the 1^st day of October, 2021.

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ORDER

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SHAJI P. CHALY

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This Review Petition is filed by the writ petitioner in W.P.(C) No. 35220 of 2019, seeking to review the judgment dated 28^th January, 2021, whereby the writ petition was dismissed by this Court basically holding that the petitioners have not made out any case so as to issue a writ of quo warranto , since the appointment of the 6^th respondent in the writ petition as Joint Food Safety Commissioner (Administration and Legal) was made on the basis of the power exercised by the State Government under Article 162 of the Constitution of India and therefore, cannot be said to be violative of any rules in force.

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The paramount contention advanced by the petitioners in the Review Petition is that the observation made by this Court in various paragraphs of the judgment with respect to the conduct of the first petitioner namely, B. Sudharma, having attacked the appointment order, since she was also a beneficiary of the impugned order, is not correct, evident from Ext. P27 report of the 10^th Pay Revision Commission, Kerala- 2014 produced by the petitioner, from where it is clear that the first petitioner was holding the post of Chief Government

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R.P. No. 513/2021 in W.P.(C) No. 35220/2019 : 4 :

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Analyst, which is a post above the Joint Commissioner of Food Safety (Administration and Legal); there was no additional benefit to the first petitioner and; further that the first petitioner was holding the post of Joint Food Safety Commissioner (Food Safety Laboratory) in addition to the post of Chief Government Analyst. According to the Review Petitioners, this Court has arrived at the final conclusions substantially depending on the said observation made by this Court and therefore, there is a clear error apparent on the face of the record to review the judgment.

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It was also contended that the first petitioner has filed only one complaint before the central authority against conferring IAS to the 6^th respondent. However, a finding is made in the judgment that the complaint filed by the first petitioner was in continuation of the previous complaints as if to appear that the first petitioner had filed complaints earlier. However, fact remains, there were other complaints forwarded against the 6^th respondent to the Central authority against conferring of IAS and in that context only, in the judgment, we have observed that the complaint filed by the petitioners against the 6^th respondent is only continuation of the complaints filed earlier.

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R.P. No. 513/2021 in W.P.(C) No. 35220/2019

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We have heard the learned counsel for the Review Petitioners Sri. T.V. Ajayakumar, Sri. Tek Chand, learned Senior Government Pleader, Sri P.C Sasidaran for the P.S.C, and the learned counsel appearing for the 6^th respondent Sri P. Nandakumar, and perused the pleadings and materials on record.

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Insofar as the observation against the first petitioner contained in paragraph 81 of the judgment and other paragraphs is concerned, we intended only to state that the first petitioner was also conferred with a benefit by appointing her as the Joint Commissioner of Food Safety (Food Safety Laboratory) by the very same impugned order and therefore, the first petitioner cannot turn around and attack the said order issued by the State Government exercising its power under Article 162 of the Constitution of India.

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Anyhow, we realise that evident from Ext. P27, the petitioner was holding the post of Chief Analyst and the additional charge given to her as the Joint Food Safety Commissioner (Food Laboratory) is a post which is below the post of the Chief Analyst. Anyhow, the said observation was not at all the basis for us to have arrived at the conclusion that the petitioners have not made out any ground for securing a writ of quo warranto , since the findings were rendered and

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R.P. No. 513/2021 in W.P.(C) No. 35220/2019 : 6 :

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conclusions arrived at based upon the power exercised by the State Government under Article 162 of the Constitution of India. The observations with respect to the attitude of the first petitioner was made by us only to point out that the first petitioner has no moral right to challenge the impugned order, since she was a beneficiary of the same. Therefore, the observations contained in the judgment in question against the first petitioner were not made to have any adverse consequences against her.

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Anyhow, we clarify, that the said findings in view of Ext. P27 hierarchy fixed by the Government ought to have been avoided and therefore, we eschew the adverse findings against the first petitioner. Whatever that be, we are of the clear opinion that the observation made against the first petitioner was immaterial for us to have arrived at the conclusions in the judgment in question and therefore, the said observations or any other observations on the basis of the material available on record cannot be projected as an error apparent on the face of the record, while rendering the findings and dismissing the writ petition on other material aspects and substantive grounds .

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In the facts and circumstances and bearing in mind the law relating to entertaining Review Petitions, we do not find any error

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R.P. No. 513/2021 in W.P.(C) No. 35220/2019

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apparent on the face of the record or other legal infirmities justifying us to review the judgment in question.

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Needless to say, the Review Petition fails and accordingly, it is dismissed.

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sd/-

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S. MANIKUMAR, CHIEF JUSTICE.

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sd/- SHAJI P. CHALY, JUDGE.

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R.P. No. 513/2021 in W.P.(C) No. 35220/2019

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APPENDIX

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PETITIONERS' ANNEXURES:

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ANNEXURE I: TRUE COPY OF THE ARGUMENT NOTE.

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ANNEXURE II: TRUE COPY OF THE I.A. NO. 1/2021 IN W.P.(C) NO.35220/2019 FILED BY THE PETITIONERS ON 19.01.2021.

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RESPONDENTS' ANNEXURES: NIL

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/True Copy/

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PS to Judge.

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B.Sudharma v. State of Kerala

Case brief

What is this about?

What did the court decide?

B.Sudharma v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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