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.
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R.P. No. 1113 of 2010 in
W.A.No.1725 of 2010
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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
