IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP.No. 101 of 2008(C)
1. ARUN GEORGE,
... Petitioner
2. JIJU VARGHESE JACOB,
3. NEETHU GEORGE,
4. MANOJ NARAYANAN K.S.,
5. SINDU JONES,
6. LINJU ANN JACOB,
7. M.P. ABRAHAM,
8. THE MANAGER,
Vs
1. STATE OF KERALA,
... Respondent
2. DIRECTOR OF COLLEGIATE EDUCATION,
3. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION,
4. THE MAHATMA GANDHI UNIVERSITY,
For Petitioner :SRI.BABU VARGHESE
For Respondent :SRI.T.A.SHAJI-(SC M.G.UNIVERSITY)
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :07/10/2009
O R D E R
PIUS C. KURIAKOSE & ANTONY DOMINIC, JJ.
===========================
R.P. Nos.101 and 180 OF 2008
in W.A. No.2529/05 ,
R.P.No.983/07 in WP(c).No.30527/05 &
R.P.No.55/08 in WP(c).No.939/06
=====================
Dated this the 7th day of October, 2009
O R D E R
ANTONY DOMINIC, J
RP No.101 is filed by Respondents 1 to 8 in W. A. No. 2529/05
and RP No.180/08 is filed by the Kerala Private College Management
Association and the Manager, Morning Start Home Science College,
Angamaly, seeking review of the judgment in W.A.No.2529/2005,
after having obtained leave to file the review petition, as per order
dated 06.02.2008 in I.A.No.23/2008.
2. Pleadings in these review petitions are almost identical
and hence we shall make reference to the pleadings in RP
No.101/2008 for convenience.
3. W.A.No. 2529/2005 was filed by the Respondents 1 to 3
herein, aggrieved by the judgment of the Learned Single Judge in
WPC No.482 of 2004. By the said judgment the Division Bench,
allowed the Writ Appeal and held that the courses sanctioned by the
Government as per Exts.P2 and P2(a), were conditional and that
R.P. Nos.101 and 180 OF 2008
in W.A. No.2529/05,
R.P.No.983/07 in WP(c).No.30527/05
R.P.No.55/08 in WP(c).No.939/06
:2 :
therefore the Government did not have the liability to pay salary and
other benefits to petitioners 1 to 7 herein who were appointed to
the vacancies which arose consequent on the commencement of the
courses.
4. The contention raised by the review petitioners are that
the judgment was rendered without adverting to the provisions of
the University Act, the Statutes, the Direct Payment Agreement and
the judgments of this Court as also that of the Apex Court. It is
contended that the judgment is vitiated due errors apparent on the
face of it, warranting review. In support of the Review Petition,
counsel for the petitioners relied on the following judgments and
the principles laid down therein, generally, are as under:
i. If the attention of the court is not drawn to a material
statutory provision during the original hearing the court
will review its judgment. (Northern India Caterers (India)
Ltd., v. Lt. Governor of Delhi – 1980 (2) SCC 167)
ii. Failure of the court to take into consideration an existing
decision of the Supreme Court taking a different or
R.P. Nos.101 and 180 OF 2008
in W.A. No.2529/05,
R.P.No.983/07 in WP(c).No.30527/05
R.P.No.55/08 in WP(c).No.939/06
:3 :contrary view on a point covered by its judgment, would
amount to a mistake or error apparent on the face of the
record. (The Nalagarh Dehati Co-operative Transport
Society Ltd., Nalagarh v. Beli Ram and Others – AIR
1981 HP 1(FB))
iii. If a particular person is a necessary party and a decision
has been rendered without impleading the necessary
party, the proper course to be adopted is to make an
appropriate petition to re-open the judgment, and to get
himself impleaded as a party and seek review of the
judgment. (Ramachandran v. Food Corporation of India
– 1989 (2) KLT 112).
iv. The powers of the High Court under Article 226 are
plenary powers and are not fettered by legal constraints
and while exercising these powers, if the court has
committed a mistake, it has the plenary power to correct
the same (Common Cause, A registered Society v. Union
of India and Others – 1999 (6) SCC 179).
R.P. Nos.101 and 180 OF 2008
in W.A. No.2529/05,
R.P.No.983/07 in WP(c).No.30527/05
R.P.No.55/08 in WP(c).No.939/06
:4 :
v. Justice is a virtue that transcends all barriers and the
rules of procedures or technicalities cannot stand in the
way of administration of justice and law has to bend
before justice. If court finds that the error pointed out
was committed under a mistake and that the earlier
judgment would not have been passed but for the
erroneous assumption, which in fact did not exist or its
perpetration shall result in a miscarriage of justice,
nothing would preclude the court from rectifying the
error. (Lily Thomas and Others v. Union of India and
Others – 2000 (6) SCC 224)
vi. The words `sufficient reason’ in Order 47 Rule 1 of the
Code are vide enough to include, a misconception of fact
or law by a court or even an Advocate, and that an
application for review may be necessitated by way of
invoking the doctrine `actus curiae neminem gravabit’
(Board of Control for Cricket in India and another v.
Nataji Cricket Club and Others – 2005 (4) SCC 741).
R.P. Nos.101 and 180 OF 2008
in W.A. No.2529/05,
R.P.No.983/07 in WP(c).No.30527/05
R.P.No.55/08 in WP(c).No.939/06
:5 :
vii. When an inferior court overlooks the binding decision of
the Apex Court and renders a decision contrary to the
law already laid down by the Apex Court, such a decision
is one that is vitiated by an error apparent on the face of
the record, to justify review of the decision. (E.S.I.
Corporation v. Rajagopal Textile Mills (P) Ltd. – 2006 (4)
KLT 730).
viii. An error to be one apparent on the face of the record,
need not be limited to errors of fact, but could extend to
errors of law as well. If mistake is apparent, be it of law
or of fact, on a perusal of the records, then an
application for review would lie and the court may also
re-open its judgment, if a manifest wrong has been
done. (Sathy v. Thara – 2007 (2) KLT SN 13 (Case
No.19))
On the other hand, the learned Government Pleader contended that
there is no error apparent on the face of the judgment, that no
miscarriage of justice has been caused and that the petitioners
R.P. Nos.101 and 180 OF 2008
in W.A. No.2529/05,
R.P.No.983/07 in WP(c).No.30527/05
R.P.No.55/08 in WP(c).No.939/06
:6 :
could not make out a case that despite due diligence, they could not
obtain any judgment or any record, before the writ appeal was
heard. It was further contended that the fact that this court was
wrong in having taken a particular view in a judgment and that, on
the materials available, another view is also possible, is no reason
invoke the review power inherent in this court.
5. Learned Government Pleader also relied on the following
judgments, and the propositions laid down therein, can be
summarised, as under:
(I) A review is, by no means an appeal in disguise, whereby an
erroneous decision is reheard and corrected, but lies only
for correcting patent errors (Thungabhadra Industries Ltd.
v. The Govt. of Andhra Pradesh – AIR 1964 SC 1372).
(ii) Review is maintainable only if an apparent error or a
mistake on the face of the judgment is made out, or that it
should be shown that the new pleas are based on any
matter, which could not, despite due diligence, be
discovered or produced earlier at the appropriate stage.
R.P. Nos.101 and 180 OF 2008
in W.A. No.2529/05,
R.P.No.983/07 in WP(c).No.30527/05
R.P.No.55/08 in WP(c).No.939/06
:7 :
(Dr. Mohd. Yasin v. University of Kashmir, Srinagar and
Others – AIR 1974 SC 2341).
(iii) Once an order has been passed by a court, a review thereof
must be subject to the rules of the game, which cannot be
lightly entertained, and a 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. (Sow
Chandra Kante and another v. Sheikh Habib – 1975 (1)
SCC 674).
(iv) 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 an error apparent on the
face of the record. (Northern India Caterers (India) Ltd., v.
Lt. Governor of Delhi – AIR 1980 SC 674).
6. Bearing in mind the aforesaid legal principles, we shall now
proceed to examine whether the petitioners have made out a case
for review of the judgment, as prayed for by them. During the
hearing of these review petitions extensive reference was made to
R.P. Nos.101 and 180 OF 2008
in W.A. No.2529/05,
R.P.No.983/07 in WP(c).No.30527/05
R.P.No.55/08 in WP(c).No.939/06
:8 :
the various provisions of the University Act, the Statutes, the Direct
Payment Agreement and the decisions dealing with the impact of
the Direct Payment Agreement such as State of Kerala v. Devasy
Manjooran (1977 K.L.T. 110), was referred to. The Division Bench
judgment in Fr. Mathew Meleparambil v. State of Kerala (2008 (4)
KLT 643, which of course was rendered subsequent to the judgment
under review, was also relied on. In addition to all this, the Apex
Court judgment in Chandigarh Administration and Others v. Rajni
Vali (Mrs) and Others (2000 (2) SCC 42), which was rendered in
almost similar factual circumstances as obtaining in these cases was
also relied on. That apart, Annexures A1 to A23, which includes,
documents obtained as per Annexure A7 request made under Right
to Information Act and obtained subsequent to the judgment under
review also were relied on.
7. Having gone through the statutory provisions, documents
produced and the judgments referred to and also the facts brought
on record by the affidavits filed in these review petitions, we are
inclined to find that the Division Bench did not advert to relevant
R.P. Nos.101 and 180 OF 2008
in W.A. No.2529/05,
R.P.No.983/07 in WP(c).No.30527/05
R.P.No.55/08 in WP(c).No.939/06
:9 :
statutory provisions or the Direct Payment Agreement and facts
which are relevant to issue, as a result of which grave injustice has
been caused to the review petitioners. Secondly, the documents/
information, obtained by the Review Petitioners are those which
were fully in the custody and control of the respondents themselves
and respondents also do not have a case that the review petitioners
were even aware of them. Further the petitioners have pleaded in
the affidavits filed that they were unaware of these materials, which
stands uncontroverted. Further, the conclusion in the judgment that
Direct Payment Agreement do not apply to course subsequently
commenced, is directly contrary to Clause 35 of the Agreement,
which is not even referred to in the judgment. We are also satisfied
that the facts of these cases are incomparable with those dealt with
in the judgment in Amina vs. State of Kerala (2004 (1) KLT 657)
and that it was without appreciating this fundamental difference,
that the said judgment was overruled by the Division Bench.
Therefore in our view, the judgment is vitiated for errors apparent
on the face of record calling for exercise of power of review
R.P. Nos.101 and 180 OF 2008
in W.A. No.2529/05,
R.P.No.983/07 in WP(c).No.30527/05
R.P.No.55/08 in WP(c).No.939/06
:10 :
conferred on this Court.
Accordingly, we allow the petitions. The judgment in W.A.No.
2529 of 2005 will stand reviewed and recalled.
R.P.No.983/07 is filed seeking review of the judgment in WP
(c).No.30527/05 and R.P.No.55/08 is filed seeking review of the
judgment in WP(c).No.939/06. These writ petitions were also
disposed of along with W.A. No.2529/05. In view of our order in
R.P.No.101/08 & 180/08 reviewing the judgment in W.A.
No.2529/05, R.P.Nos.983/07 & 55/08 will also stand allowed and
the judgments are also recalled.
PIUS C. KURIAKOSE, JUDGE
ANTONY DOMINIC, JUDGE
Rp