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Kerala High Court
State Of Kerala And Others vs Anitha.T.A And Another on 20 December, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RP.No. 1113 of 2010()



1. STATE OF KERALA AND OTHERS
                      ...  Petitioner

                        Vs

1. ANITHA.T.A AND ANOTHER
                       ...       Respondent

                For Petitioner  :GOVERNMENT PLEADER

                For Respondent  : No Appearance

The Hon'ble the Chief Justice MR.J.CHELAMESWAR
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON

 Dated :20/12/2010

 O R D E R
            J.Chelameswar, C.J. & P.R.Ramachandra Menon, J.
                       ------------------------------------------
                           R.P. No. 1113 of 2010 in
                             W.A.No.1725 of 2010
                       ------------------------------------------
                  Dated this the 20th day of December, 2010

                                     ORDER

J.Chelameswar, C.J.

The present review petition is filed by the appellants in the writ

appeal, i.e. the State and its officers, audaciously affirming that there is an

error apparent on the face of the record in the judgment dated 8th October,

2010.

2. The facts are as follows: The first respondent herein was

the petitioner in W.P.(C) No.23084 of 2010. The said writ petition was filed

challenging a Government Order dated 9.6.2010 filed as Ext.P7 in the writ

petition. By the said impugned order the Commissioner for Entrance

Examinations was directed to conduct a special entrance examination

exclusively for the Scheduled Tribes students for admission to MBBS/BDS

courses. At the stage of admission of the writ petition, a learned Judge of

this Court passed an interim order staying the operation of the above

mentioned impugned order. The State filed an application to vacate the

interim order granted earlier. But the learned Judge of this Court, for the

reasons recorded in the order, declined to vacate the interim order passed

earlier. In view of the said order dated 16.9.2010, the State issued another

executive order in G.O.(Rt) No.3711/10H&FWD dated 18.9.2010.

R.P. No.1113 of 2010

– 2 –

3. However, aggrieved by the interim order dated

16.9.2010 the State preferred W.A.No.1725 of 2010. When the writ

appeal came up for consideration, the learned counsel for the writ

petitioner/the first respondent herein submitted that the writ petition is

not pressed as the writ petitioner has secured admission to M.B.B.S.

course in a medical college in the meanwhile. Therefore, by the

judgment dated 8th October, 2010 the writ petition was dismissed as not

pressed and consequentially the writ appeal was closed as nothing

would survive for consideration upon the dismissal of the writ petition.

4. The instant review petition is filed alleging that there is

an error apparent on the face of the record in the judgment dated 8th

October, 2010. According to the review petitioners this Court ought to

have made an express declaration that the interim orders granted during

the pendency of the writ petition (which eventually came to be dismissed

as not pressed) lapsed on such dismissal. It is further submitted that

this Court should also have gone further to declare that the proceedings

issued by the State pursuant to the interim orders, i.e. G.O.(Rt)

No.3711/10H&FWD dated 18.9.2010 referred to above also lapsed

pursuant to the dismissal of the writ petition.

5. In support of the submission, the learned Government

Pleader relied upon a judgment of the Supreme Court reported in

Kalabharathi Advertising v. Hemant Vimalnath Narichania and others

R.P. No.1113 of 2010

– 3 –

[(2010) 9 SCC 437]. At paragraph 24 of the said judgment the

Supreme Court held as follows:

“It is not permissible for a party to file a writ petition,

obtaining certain orders during the pendency of the petition

and withdraw the same without getting proper adjudication of

the issue involved therein and insist that the benefits of the

interim orders or consequential orders passed in pursuance of

the interim order passed by the writ court would continue. The

benefit of the interim relief automatically gets

withdrawn/neutralised on withdrawal of the said petition. In

such a case concept of restitution becomes applicable

otherwise the party would continue to get benefit of the interim

order even after losing the case in the court. The court should

also pass order expressly neutralising the effect of all

consequential orders passed in pursuance of the interim order

passed by the court. Such express directions may be

necessary to check the rising trend among the litigants to

secure the relief as an interim measure and then avoid

adjudication on merits.”

6. Learned Government Pleader relying on the above

decision argued that this Court ought to have passed an order

expressly neutralising the effect of the above mentioned G.O.(Rt)

No.3711/10H&FWD dated 18.9.2010 and the failure to make such an

express declaration tantamounts to an error apparent on the face of

records.

7. In response to a specific query whether it was brought to

the notice of this Court at the time when the judgment dated 8th October,

2010 was passed regarding the existence of a consequential

R.P. No.1113 of 2010

– 4 –

government order in G.O.(Rt) No.3711/10H&FWD dated 18.9.2010, the

answer was that it was not expressly brought to the notice of this Court

though it was pleaded in the grounds of appeal. The result is obvious.

8. Apart from that, it is too well settled that any interim

order passed during the pendency of a legal proceeding would merge

with the final order. If certain executive action was taken by the State

pursuant to an interim order passed by this Court during the pendency

of the writ petition, nothing in law prevents the State from rescinding

such executive orders after the interim orders lapsed with the dismissal

of the writ petition. In the circumstances, we do not see any error

apparent on the face of the record.

The review petition is dismissed.

J.Chelameswar,
Chief Justice

P.R.Ramachandra Menon,
Judge

vns


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