Angel Mary J. N. W/o Alex Joseph v. State of Kerala
2025-06-02
ANIL K.NARENDRAN, P.G.AJITHKUMAR
body2025
DigiLaw.ai
ORDER : P.G. Ajithkumar, J. 1. The petitioners in the respective original petitions have filed these applications for review filed under Section 114 read with Order XLVII, Rule 1 of the Code of Civil Procedure, 1908 (CPC). 2. The original petitions involved here and also a connected matter were disposed of as per the common judgment dated 04.10.2024 owing to the fact that questions involved were the same. The petitioners would contend that errors were crept in the said common judgment and therefore the same is liable to be reviewed and the original petitions are decided in accordance with law. The 3rd respondent filed a counter-affidavit controverting the contentions in the applications for review. 3. Heard the respective counsel for the petitioners, the learned Senior Government Pleader and the learned Standing Counsel for the 3 rd respondent. 4. The essential contentions raised in support of the plea for review are that the feeder categories eligible for applying for appointment to the post of Assistant Professor in Nursing as per Annexure A1 notification were from two different departments, namely, Department of Medical Education and Department of Health Services and the law applicable was the one laid down in Sreejith K.K. v. Vinod , 2019 (1) KHC 261 . But this court departed from the said principle and that occasioned in holding in the common judgement that those whose probation was declared could alone apply. 5. It was further contended that the question concerning qualification of the applicants to the post of Assistant Professor in Nursing should not have been decided in the context of Rule 2(13) of Part I of the Kerala State and Subordinate Service Rules, 1958 (KS&SSR), but only in the light of the provisions of Rule 5, whereas the court held otherwise. It has also been contended that the interpretation of Rule 2(13) as adopted in the present judgment is incorrect inasmuch as a contextual interpretation was warranted owing to the prelude in the Rule that “unless there is anything repugnant in the subject or context……” A more fundamental contention was raised that the PSC went wrong in notifying the vacancies for the recruitment, “by transfer”. It should have been a direct recruitment since the appointment intended was against substantive vacancy. 6.
It should have been a direct recruitment since the appointment intended was against substantive vacancy. 6. The learned Standing Counsel for the PSC would submit that the judgment was rendered after considering all the contentions in detail and therefore a review is not called for. In that regard the decision of the Apex Court in Sanjay Kumar Agarwal v. State Tax Officer, (2024) 2 SCC 362 was placed reliance on. The learned Standing Counsel further submitted that a similar question was considered by this Court in O.P. (KAT) No.293 of 2024. Although the Department was different, application of Rule 2(13) of Part I of KS&SSR was R.P. No.1169 of 2024 in O.P. (KAT) No.367 of 2024 the question for consideration. There the notification of the PSC for recruitment by transfer and fixing the qualification for the same have been upheld. It is pointed out that a review application filed in that matter was turned down as well. Accordingly, the learned Standing Counsel would submit that these applications are liable only to be dismissed. The Senior Government Pleader supported the stand taken by the learned Standing Counsel. 7. In Parsion Devi v. Sumitri Devi, (1997) 8 SCC 715 , the Apex Court made very pivotal observations:- “9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be “reheard and corrected”. A review petition, it must be remembered has a limited purpose and cannot be allowed to be “an appeal in disguise.” 8. In Shanti Conductors Private Limited v. Assam State Electricity Board, (2020) 2 SCC 677 , a three Judge Bench of the Apex Court following Parsion Devi [(1997) 8 SCC 715] dismissed the review applications holding that the scope of review is limited and under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided. 9.
9. Later, in Shri Ram Sahu (Dead) Through Legal Representatives v. Vinod Kumar Rawat, (2021) 13 SCC 1 , the Apex Court restated the law with regard to the scope of review under Section 114 read with Order XLVII Rule 1 of the CPC. 10. The law is clear that a power to review cannot be exercised as an appellate power and has to be strictly confined to the scope and ambit of Order XLVII Rule 1 of the CPC. An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions. 11. The learned counsel for the petitioner in R.P.No. 1169 of 2024 urged that if there is an error in the judgment, which is concerning a substantive point of law, the court is obliged to exercise its power of review. In that regard, the learned counsel placed reliance on Deva Metal Powders Pvt. Ltd. v. Commissioner, Trade Tax, U.P., (2008) 2 SCC 439 . After holding so in the said decision, it was further held that an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Therefore, a wrong view or decision taken in the judgment cannot be a reason for review inasmuch as a review cannot be an appeal in disguise. Keeping in view the aforementioned legal position, we proceed to examine the contentions raised by the petitioners. 12. After considering the law laid down by this Court in Sreejith K.K. 2019 (1) KHC 261 and Riju K. v. The Controller, Legal Metrology [judgment dated 12.08.2014 in O.P. (KAT) No. 255 of 2014] we held that the qualification fixed by the PSC in Annexure A1 notification could not be said to be incorrect. The provisions of Rule 2(13) of Part I of KS&SSR were found to be holding the field. When we considered the contentions of the parties in detail and for the reasons given therein arrived at the aforementioned findings, it is not a case falling for review as held in the aforementioned decisions. 13. Rule 2(13) of Part I of KS&SSR defines the appointment by transfer.
When we considered the contentions of the parties in detail and for the reasons given therein arrived at the aforementioned findings, it is not a case falling for review as held in the aforementioned decisions. 13. Rule 2(13) of Part I of KS&SSR defines the appointment by transfer. The contention of the petitioners that the qualifications should have been fixed as in the case of a direct recruitment reckoning the provisions of Rule 5 of Part I of KS&SSR cannot be accepted. Whether or not the recruitment is against a substantive vacancy when it is provided in the Special Rules for by-transfer appointment, the recruitment agency cannot be found fault with for making recruitment by transfer. Rule 5 regulates only the proportion and does not create any prohibition to recruitment by transfer vis-a-vis the substantive vacancies. We notice that the view taken in O.P. (KAT) No.293 of 2024, to which we are in agreement with, fails the contention of R.P. No.1169 of 2024 in O.P. (KAT) No.367 of 2024 the petitioners that Rule 2(13) of Part I of the KS&SSR has no application. 14. The petitioners set forth a few other contentions, which are anew. There is no scope for such new contentions in an application for review. We are therefore of the view that these applications lack merits. 15. Accordingly, these applications for review are dismissed.