Mahatma Gandhi University vs Dr. Thara K.Simon
2021 Latest Caselaw 16405 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
      THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
                                &
             THE HONOURABLE MR. JUSTICE GOPINATH P.
   THURSDAY, THE 5TH DAY OF AUGUST 2021 / 14TH SRAVANA, 1943
                       RP NO. 503 OF 2021
  AGAINST THE ORDER/JUDGMENT IN WA 133/2021 OF HIGH COURT OF
                        KERALA, ERNAKULAM

REVIEW PETITIONER/RESPONDENT 1 AND 2 IN W.A:

           MAHATMA   GANDHI  UNIVERSITY,   REPRESENTED   BY   ITS
           REGISTRAR, PRIYADARSHINI HILLS, KOTTAYAM,
           PRIYADARSHINI HILLS,KOTTAYAM,
           PIN - 686 560.
           BY ADV SURIN GEORGE IPE


RESPONDENTS/APPELLANT AND RESPONDENTS 3 TO 5 IN WA:

  1.       DR.THARA   K.  SIMON,   AGED   54  YEARS,   ASSOCIATE
           PROFESSOR, UNION CHRISTIAN COLLEGE, ALUVA, W/O.DR.
           JACOB ELIAS, RESIDING AT POOMTHOTTAM, 12, JYOTHIR
           NAGAR, U.C. COLLEGE, P.O. ALUVA, PIN 680 102.

 2.        THE UNION CHRISTIAN COLLEGE, REPRESENTED BY ITS
           MANAGER, ALUVA, POST BOX NO.5,ALUVA, PIN - 680 102.

 3.        UNIVERSITY GRANTS COMMISSION (UGC), REPRESENTED BY
           ITS CHAIRMAN, BAHADUR SHAH ZAFAR MARG, NEW DELHI, PIN
           110 002
  4.       DR.   DAVID   SAJ   MATHEW   P.,   AGED   54   YEARS,
           S/O.P.T.MATHEW, ASSOCIATE PROFESSOR/HEAD, DEPARTMENT
           OF BOTANY AND DRAWING AND DISBURSING OFFICER, UC
           COLLEGE, ALUVA, RESIDING AT PULIKKAPARAMBIL, FATHIMA
           NAGAR, THRISSUR, PIN 680 O05. (AT PRESENT DR. RACHEL
           REENA PHILIP, AGED 55 YEARS, W/O. K.C.THOMAS,
           RESIDING AT KOPPARA, VALLIYAPPANPADY, U.C. COLLEGE
           P.O., PIN 683 102, IS APPOINTED AS THE PRINCIPAL AND
           DRAWING AND DISBURSING OFFICER, U.C. COLLEGE, ALUVA)
OTHER PRESENT:

          SRI. G. GOPALAKRISHNA KURUP, ADVOCATE GENERAL,
          SR. ADV S SREEKUMAR, SR ADV P RAVINDRAN, ADV JAIBY
          PAUL, SC S KRISHNAMOORTHY

THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 05.08.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 R.P.No.503/2021 in W.A.No.133/2021      2

                                     ORDER

A.K.Jayasankaran Nambiar, J

This Review Petition has been preferred by the Mahatma Gandhi

University and its Vice Chancellor seeking a review of the judgment dated

8.4.2021 of this Court in W.A.No.133/2021. At the very outset, it must be

noticed that, against the said judgment, the review petitioners had

approached the Supreme Court through S.L.P.(C)No.7049/202. The Union

Christian College, Aluva had also preferred S.L.P.(C)No.7394/2021

impugning the said judgment. The Special Leave Petitions were, however,

dismissed by the Supreme Court through a common order dated

30.6.2021. The said order reads as under:-

" ORDER

1. We are not inclined to entertain the Special Leave Petitions under Article 136 of the Constitution.

2. The Special Leave Petitions are accordingly dismissed.

3. Pending application, if any, stands disposed of."

2. When the review petition came up for admission, we heard

Sri.Gopalakrishna Kurup the learned Advocate General, duly instructed by

Sri. Surin George Ipe, on behalf of the Review Petitioners, Sri. S.

Sreekumar, the learned senior Advocate duly instructed by Sri. Saji

Varghese, appearing for the 2nd respondent, Sri. P. Raveendran, the

learned senior counsel duly assisted by Smt. Aparna Rajan for the 1 st

respondent, Sri. Krishnamoorthy, the learned standing counsel for the

University Grants Commission and Sri. Jaiby Paul, the learned counsel for

the 4th respondent. We also took note of the recent judgment of the

Supreme Court in Khoday Distilleries Limited (now known as

Khoday India Limited) and others v. Sri Mahadeshwara

Sahakara Sakkare Karkhane Limited, Kollegal [2019 (4) SCC 376],

where the Court, after referring to the precedents in the matter, found as

follows on the issue of entertainment of Review Petition by the High

Court, after dismissal of Special Leave Petition by the Supreme Court:-

"26.2. We reiterate the conclusions relevant for these cases as under:(Kunhayammed case [(2000) 6 SCC 359],SC p.384)

"(iv) An order refusing special leave to appeal may be a non- speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.

(v) If the order refusing leave to appeal is a speaking order i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as re judicata in subsequent proceedings between the

parties.

(vi) Once leave to appeal has been granted and appellate jurisdiction of the Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.

(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of the High Court to entertain a review petition is lost thereafter as provided by sub-rule 91) of Order 47 Rule 1 CPC."

When we peruse the averments in the Review Petition before us, we find

that the grounds for interference raised therein are substantially the same

as the grounds in the Special Leave Petition that was filed by the

University before the Supreme Court, a copy of which was made available

to us for our perusal. In particular, grounds E,F,G,H,I, J & K in the said

Special Leave Petition substantially covers the grounds raised in the

Review Petition. Thus even if we were to find that the review petition

could be entertained despite the order in the Special Leave Petition, we

would be committing an injustice if, we were to examine the very same

grounds in an application for review under O.47 Rule 1 CPC which, apply

to proceedings in an intra-Court appeal under Section 5 of the Kerala High

Court Act.

3. Coming to the findings in our judgment dated 8.4.2021 in

W.A.133/2021, that is impugned in this Review Petition, paragraph 7

thereof enumerates the circumstances under which we deemed it

appropriate to second guess the decision of the University in the matter of

evaluation of the candidature of the writ petitioner for the post of Principal

of the College. A perusal of the said paragraph in the judgment would

clearly indicate that, while we were aware of the inherent limitations that

inform the exercise of the discretionary jurisdiction under Art.226 of the

Constitution of India, we had deemed it appropriate to correct the

apparent errors noticed in the evaluation done by the University solely

because we found that the applicable guidelines were ignored by the

University, and extraneous criteria relied upon, to disallow the marks

claimed by the writ petitioner under category III of the guidelines. We

were also persuaded to resort to such an exercise because we found that it

was the third round of litigation at the instance of the writ petitioner,

pursuant to the remand of the matter to the University on two previous

occasions and, therefore, no useful purpose would have been served in

remitting the matter to the University yet again.

4. As already noticed, against the judgment, both the University

as well as the College had preferred Special Leave Petitions before the

Supreme Court on substantially the same grounds as are now urged before

us in the Review Petition. The Supreme Court, by its order extracted

above, dismissed the Special Leave Petitions, without reserving any liberty

to the petitioners herein to approach this Court through a review petition

impugning this Court's Judgment dated 8.4.2021 in W.A.No.133/2021. In

our view, the aforesaid aspects assume significance in the light of the

findings of the Supreme Court in Khoday Distilleries Limited case

(supra), particularly the one that holds that in cases where the order of the

Supreme Court dismissing the Special Leave Petition contains a finding

other than a declaration of law, the said finding would bind the parties

thereto and also the Court, Tribunal or Authority in proceedings

subsequent thereto, by way of judicial discipline, since the Supreme Court

is the Apex Court of the Country. Accordingly, while the dismissal of the

Special Leave Petition may not by itself attract the principle of 'merger' to

hold that the judgment of the High Court has since merged with that of the

Supreme Court, we cannot ignore the observations of the Supreme Court

while dismissing the Special Leave Petition and the same have to be given

due weightage as a matter of judicial discipline while deciding the fate of

the present review petition. We find the expression "We are not inclined

to entertain the Special Leave Petitions under Article 136 of the

Constitution" in the order of the Supreme Court as an expression of the

subjective satisfaction of the Court, pursuant to an application of mind by

the Court to the facts and grounds stated in the Special Leave Petitions,

that there were no grounds made out to entertain the Special Leave

Petitions. The second paragraph of the Court's order only records the

consequences of that satisfaction, when it states that the Special Leave

Petitions are accordingly dismissed. The observations of the Court in its

order dated 30.6.2021 dismissing the SLP's together with the fact that no

liberty was reserved in the said order to approach this Court through a

review petition, lead us to hold that it would be in the best interests of all

concerned that we now put an end to this long drawn litigation. We are, at

this juncture, reminded of the following passage in the opinion of

P.T.Raman Nair C.J speaking for the Full Bench of this Court in M.P.

Raghavan Nair v. State Insurance Officer, AIR 1971 Ker 175: -

"The principles are principles of repose and peace. "Long dormant claims have often more of cruelty than of justice in them," said Best, C.J. in A Court v. Cross, (1825) 130 ER 540. And so, we might add, has the fighting of the same legal battle over again with the same adversary, or, once a wrong has been suffered, the fighting of the battle for redress piecemeal."

(Emphasis is ours)

5. We might also incidentally observe that, before us, the

reliance by the learned Advocate General appearing on behalf of the

University was primarily on documents, obtained pursuant to a query

under the Right to Information Act, to demonstrate that certain journals

were removed from the list of UGC accredited/recognized journals and

hence, the claim made by the writ petitioner based on those journals could

not have been entertained. We note that the said information was received

by the University much after the disposal of the writ appeal, but,

significantly, just before the date of dismissal of the Special Leave

Petitions. For reasons best known to the University, they chose not to

incorporate the said details in the Special Leave Petitions that were filed

before the Supreme Court. As the judgment of this Court as well as the

order of the Supreme Court dismissing the SLP's were rendered in the

absence of the said material, we cannot permit the petitioners to rely upon

the same at this belated stage. "Interest rei publicae ut sit finis

litium" - it is in the interest of the republic that there is a conclusion of

litigation. These proceedings are no exception to that rule. We, therefore,

have no hesitation in dismissing this Review Petition.

6. Before parting with this matter and taking note of the

apprehension expressed by the learned Advocate General, on behalf of the

petitioner University that, the judgment impugned in the Review Petition

might be relied upon as a precedent by future applicants to various

teaching posts in Colleges under the University, we make it clear that our

findings in the said judgment were based solely on the material that was

made available before us at the time of hearing and, hence, those findings

shall not be treated as a precedent either in fact or in law in other cases.

As we are informed by the learned senior counsel appearing for the 1 st

respondent that she is due to retire on 31.3.2022, we only hope that the

University and the College will now give a quietus to this matter and pass

appropriate orders approving the appointment of the writ petitioner as the

Principal of the College.

sd/-

A.K.JAYASANKARAN NAMBIAR JUDGE

sd/-

GOPINATH P.

JUDGE

acd

PETITIONERS' ANNEXURES

ANNEXURE-I: A TRUE COPY OF THE RELEVANT PAGE OF THE RESEARCH ARTICLE TITLED "TRACING STOMATAL ONTOGENY THOUGH FOLIAR HISTOCHEMICAL STUDY IN ACANTHACEAE" PUBLISHED IN THE INTERNATIONAL JOURNAL OF ADVANCED RESEARCH.

ANNEXURE-II A TRUE COPY OF THE RELEVANT PAGE OF THE RESEARCH ARTICLE TITLED "ROOTING OF ROOT CUTTINGS: A BREAKTHROUGH IN VEGETATIVE PROPAGATION"PUBLISHED IN THE INTERNATIONAL JOURNAL OF ADVANCED RESEARCH.

ANNEXURE-III A TRUE COPY OF THE ONLINE RTI STATUS FORM ALONG WITH THE APPENDED LIST.

ANNEXURE-IV A TRUE COPY OF THE NAAS SCORE OF SCIENCE JOURNALS, EFFECTIVE FROM 01-01-2017.

ANNEXURE-V A TRUE COPY OF THE DETAILS REGARDNG THE NATIONAL ACADEMY OF AGRICULTURAL SCIENCES AVAILABLE IN OFFICIAL WEBSITE OF DEPARTMENT OF AGRICULTURAL WEBSITE AND EDUCATION ACCESSIBLE [HTTP:// DARE.NIC.IN/NATIONAL-ACADEMY-

AGRICULTURAL- SCIENCES].

ANNEXURE-VI A TRUE COPY OF THE RELEVANT PAGE OF THE PAPER PUBLISHED BYH THE 2ND RESPONDENT IN THE OPEN ACCESS LIBRARY.