Suneera T.U vs Kerala Public Service Commission on 12 April, 2023

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Kerala High Court

Suneera T.U vs Kerala Public Service Commission on 12 April, 2023

These Review Petitions have been instituted to impugn the common judgment dated 17.5.2022 rendered by the Division Bench of this Court in OP(KAT) No.335, 322, 402, 351, 327, 395, 337, 423 & 328 of 2020.

2. Heard the learned Advocates appearing for the respective review petitioners, Sri.P.C.Sasidharan, learned Standing Counsel for the Kerala Public Service Commission (hereinafter referred to as 'PSC' for short) and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the official respondents.

3. Sri.N.N.Sugunapalan, learned senior counsel, instructed by Sri.K.A.Anand, learned counsel appearing for the R.P. No. 1280/2022 & connected cases ..2..

petitioner in all Review Petitions other than R.P.No.318/2023, have made the main submissions. Sri.Ashok B.Shenoy, learned counsel has made submissions for the review petitioner in R.P.No.318/2023.

4. Sri.P.C.Sasidharan, learned Standing Counsel for the PSC and the learned Senior Government Pleader appearing for the official respondents have submitted that no valid grounds for invoking the review remedy has been made out in these cases.

5. The parties have been heard.

6. We also note that the impugned common judgment rendered on 17.5.2022, to the extent it is in relation to OP(KAT). Nos.335, 322, 402, 351, 327, 395, 337, 423 & 328 of 2020, were challenged by the respective aggrieved parties concerned by filing SLP(C) Nos. 14436 - 14445 of 2022 before the Apex Court and the Apex Court has passed order dated 17.10.2022 dismissing all those SLPs. The petitioners in many of the SLPs dismissed by the Apex Court have now come up in Review. Certain other Review Petitions have been filed without approaching the Apex Court. R.P. No. 1280/2022 & connected cases ..3..

7. Further, it is submitted that, after the dismissal of the aforesaid SLPs, the Apex Court has subsequently entertained some other SLPs in relation to some of the OP(KAT)s covered by the common judgment and those matters are pending consideration before the Apex Court.

8. After considering the main submissions of the review petitioners, we are of the view that their endeavour is essentially to challenge the correctness of the impugned verdict on merits. That is not a task which can be adjudicated by a review court. The scope and ambit of review jurisdiction is extremely on a limited compass. It is well settled that review remedy would be maintainable only in the following circumstances:

(i) Mistake or error apparent on the face of the record.

(ii) Discovery of new and important matter or evidence, which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him.

(iii) Any other sufficient reason.

The Division Bench of this Court in the decision rendered in Vijaya Kumar & Anr. v. Travancore Devaswom Board- TDB, Represented by the Principle Secretary R.P. No. 1280/2022 & connected cases ..4..

Department of Devaswom & Ors. [2022 (6) KHC 407 (DB)] has considered the limited scope and ambit of review jurisdiction. It will be profitable to refer to the contents of paras 10 to 20 of the said decision in Vijaya Kumar's case supra, which read as follows:

"10. In Sow Chandra Kante v. Sheikh Habib, 1975 (1) SCC 674, on the scope of review of judgment, the Apex Court held thus:

"A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.... The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality."

11. In Meera Bhanja v. Nirmala Kumari Choudhury, 1995 (1) SCC 170, the Apex Court held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 of the Code of Civil Procedure.

12. In Chhajju Ram v. Neki, AIR 1922 PC 112, which was approved by the Apex Court in Moran Mar Basselios Catholicos and Another v. Most Rev. Mar Poulose Athanasius and Others, 1955 (1) SCR 520, the Privy Council held that the words "any other sufficient reason" appearing in Order 47 Rule 1 of the Code of Civil Procedure must mean "a reason sufficient on grounds at least analogous to those specified in the rule".

13. In Moran Mar Basselios Catholicos (supra), the Apex Court held that error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law.

14. In T. C. Basappa v. T. Nagappa, 1955 (1) SCR 250 the Apex Court held that such error is an error which is a patent error and not a mere wrong decision.

15. In Hari Vishnu Kamath v. Syed Ahmad Ishaque, AIR 1955 SC 233 it was held that it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record.

R.P. No. 1280/2022 & connected cases ..5..

16. In Kerala State Electricity Board v. Hitech Electrothermics and Hydropower Ltd. and Others, 2005 (6) SCC 651, the Apex Court on the review of judgment held thus:

"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."

17. Under the garb of filing a review petition, a party cannot be permitted to repeat old and overruled arguments for reopening the conclusions arrived at in a judgment. The power of review is not to be confused with the appellate power, which enables the Superior Court to correct errors committed by a subordinate Court (Vide: Jain Studios Ltd. v. Shin Satellite Public Co. Ltd., 2006 (5) SCC 501).

18. In S. Madhusudhan Reddy v. V. Narayana Reddy and Others, (MANU/SC/1013/2022), the Apex Court narrated the situations in which review will not be maintainable, which read thus:

"20.2. When the review will not be maintainable:

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot be equated with the original hearing of the case.

(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(v) A review is by no means an appeal in disguise whereby an erroneous decision is re - heard and corrected but lies only for patent error.

(vi) The mere possibility of two views on the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully within the domain of the appellate Court, it cannot be permitted to be advanced in the review petition.

R.P. No. 1280/2022 & connected cases ..6..

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."

19. In Patel Narshi Thakershi and Others v. Shri. Pradyuman Singhji Arjunsinghji, 1971 (3) SCC 844 the Apex Court held thus:

"4..........It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order..........."

20. The petitioners failed to place on record any of the requirements that warrant review of the impugned judgment. The Review Petitions lack merits.

The Review Petitions are dismissed."

9. Sri.Ashok B.Shenoy, learned counsel appearing for the review petitioner in R.P.No.318/2023, has submitted that his party mainly places reliance on Anx.A-1 produced in that R.P., which is a letter dated 19.7.2017 issued by the Director of Public Instructions, Thiruvananthapuram, stating about the details regarding the dates on which the staff fixation orders are issued.

10. However, no convincing reasons are made out by the review petitioner as to why he could not place such materials before this Court prior to the rendering of the impugned judgments.

11. A reading of the impugned judgment would make it R.P. No. 1280/2022 & connected cases ..7..

clear that, this Court had made exhaustive efforts to find out those factual details and no proper materials were made out by the parties and some of the materials had to be collected by this Court, with great effort, through the co-operation of the learned Senior Government Pleader. We have given our detailed reasonings as to why this Court cannot hold that the respondent PSC should be found fault with for not being aware about the staff fixation proceedings, which matters, admittedly, is solely within the domain of the employer department. We have given our detailed reasons that, these are matters which are not apprised to the PSC in time and these matters were never pleaded either in the original applications or in the pleadings submitted by the present parties in the OP(KAT)s. The Tribunal also never made any endeavour to secure such materials. In spite of absence of pleadings by the original applicants, this Court had taken a lot of time and effort to collect those details and adequate materials were not forthcoming and more importantly, it is to be noted that the respondent PSC authorities may not have information or knowledge about those R.P. No. 1280/2022 & connected cases ..8..

details unless it is conveyed by the department authorities. We have appreciated the overall factual matrix and the given reasonings for reaching our conclusions. If there is any alleged illegality about the same, a review is not the remedy and the remedy lies elsewhere.

12. Further, we also note from the submissions of the respondent PSC, that, the present impugned ranked list had lapsed long ago and the next ranked list, pursuant to the next selection process, were duly published and those ranked lists are now in operation since 31.5.2022 in all districts concerned.

13. After hearing the parties in extenso we are of the view that, it will not be right and proper for this Court to allow the pleas in these Review Petitions, as it would amount to this Court getting into the merits of the case. It is well known that, a task which is mainly in the realm of appellate court cannot be adjudicated by a review court. For these reasons, we are not in a position to hold that the impugned judgment suffers from any error apparent on the face of the record or that any other ground, admissible for R.P. No. 1280/2022 & connected cases ..9..

review, has been cogently made out in the facts and circumstances of these cases. Pendency of SLPs before the Apex Court in some of the matters cannot be the basis for this review court to exercise its extremely limited jurisdiction. In view of all these aspects, it is ordered that the above Review Petitions will stand dismissed.

Sd/-

ALEXANDER THOMAS, JUDGE Sd/-


                                               VIJU ABRAHAM,
                                                   JUDGE


MMG
                        APPENDIX OF RP 215/2023

PETITIONER ANNEXURES
ANNEXURE1              TRUE    COPY    OF     THE    CIRCULAR  NO.

H(2)/444444/17/D.P.I DATED 19-7-2017 ISSUED BY THE DIRECTOR OF GENERAL EDUCATION APPENDIX OF RP 221/2023 PETITIONER ANNEXURES ANNEXURE1 TRUE COPY OF THE CIRCULAR NO.

H(2)/444444/17/D.P.I DATED 19-7-2017 ISSUED BY THE DIRECTOR OF GENERAL EDUCATION APPENDIX OF RP 233/2023 PETITIONER ANNEXURES ANNEXURE1 TRUE COPY OF THE CIRCULAR NO.

H(2)/444444/17/D.P.I DATED 19-7-2017 ISSUED BY THE DIRECTOR OF GENERAL EDUCATION APPENDIX OF RP 244/2023 PETITIONER ANNEXURES ANNEXURE1 TRUE COPY OF THE CIRCULAR NO.

H(2)/444444/17/D.P.I DATED 19-7-2017 ISSUED BY THE DIRECTOR OF GENERAL EDUCATION APPENDIX OF RP 252/2023 PETITIONER ANNEXURES ANNEXURE1 TRUE COPY OF THE CIRCULAR NO.

H(2)/444444/17/D.P.I DATED 19-7-2017 ISSUED BY THE DIRECTOR OF GENERAL EDUCATION APPENDIX OF RP 318/2023 PETITIONER ANNEXURES ANNEXURE A1 TRUE COPY OF THE CIRCULAR NO.H(2)/444444/17/DPI DATED 19.7.2017 ISSUED BY DIRECTOR OF GENERAL EDUCATION APPENDIX OF RP.NO.240/2023 PETITIONER ANNEXURES:

ANNEXURE1 TRUE COPY OF THE CIRCULAR NO.

H(2)/444444/17/D.P.I DATED 19-7-2017 ISSUED BY THE DIRECTOR OF GENERAL EDUCATION I

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