B.Sudharma vs State Of Kerala
2021 Latest Caselaw 20407 Ker

R.P. No. 513/2021
in W.P.(C) No. 35220/2019          :1:



               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

           THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                    &

                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

          FRIDAY, THE 1ST DAY OF OCTOBER 2021 / 9TH ASWINA, 1943

                            RP NO. 513 OF 2021

 JUDGMENT DATED 28.01.2021 IN WP(C) 35220/2019 OF HIGH COURT OF KERALA

REVIEW PETITIONERS/PETITIONERS IN THE W.P.(C):

1           B.SUDHARMA,
            AGED 59 YEARS, TMC 36/580, 'NAYANI SHARANYAM',MANATH
            AYYANTHMOOLA ROAD, TRIKKAKARA, KOCHI - 682 021.

2           JOSEPH SHAJI GEORGE, JISHA COTTAGE, NEAR R.C. CHURCH,
            KAYAMKULAM - 690 502.

3           ASOKAN V.N., ALATHIRIPARAMBIL HOUSE, CHERANALLOOR, KOCHI -
            682 024.

4           RAMACHANDRAN C.P., VENGALIL, CHUNANGAD,
            OTTAPALAM - 679 511.

            BY ADVS.
            T.V.AJAYAKUMAR
            P.H.RIMJU(K/504/2014)-21421



RESPONDENTS/RESPONDENTS IN THE W.P.(C):

1           STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY,
            SECRETARIATE, THIRUVANANTHAPURAM - 695 001.


2           THE SECRETARY TO THE GOVERNMENT OF KERALA, HEALTH & FAMILY
            WELFARE DEPARTMENT, SECRETARIAT,
            THIRUVANANTHAPURAM - 695 001.

3           THE ACCOUNTANT GENERAL (A& E), KERALA, THIRUVANANTHAPURAM
 R.P. No. 513/2021
in W.P.(C) No. 35220/2019         :2:


           - 695 001.

4          KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS
           SECRETARY, PATTOM, THIRUVANANTHAPURAM - 695 014.

5          COMMISSIONER OF FOOD SAFETY, COMMISSIONERATE OF FOOD
           SAFETY, THYCAUD, THIRUVANANTHAPURAM - 695 014.

6          K.ANILKUMAR, JOINT FOOD SAFETY COMMISSIONER
           (ADMINISTRATION AND LEGAL), COMMISSIONERATE OF FOOD
           SAFETY, THYCAUD, THIRUVANANTHAPURAM - 695 014.




           SRI. TEK CHAND, SR GP FOR R1 TO R3 AND R5,
           R4 BY SRI.P.C.SASIDHARAN, SC
           R6 BY SRI.P.NANDAKUMAR




      THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 01.10.2021,

     THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 R.P. No. 513/2021
in W.P.(C) No. 35220/2019          :3:



                Dated this the 1st day of October, 2021.

                               ORDER

SHAJI P. CHALY

This Review Petition is filed by the writ petitioner in W.P.(C) No.

35220 of 2019, seeking to review the judgment dated 28 th January,

2021, whereby the writ petition was dismissed by this Court basically

holding that the petitioners have not made out any case so as to issue

a writ of quo warranto, since the appointment of the 6 th respondent in

the writ petition as Joint Food Safety Commissioner (Administration

and Legal) was made on the basis of the power exercised by the State

Government under Article 162 of the Constitution of India and

therefore, cannot be said to be violative of any rules in force.

2. The paramount contention advanced by the petitioners in the

Review Petition is that the observation made by this Court in various

paragraphs of the judgment with respect to the conduct of the first

petitioner namely, B. Sudharma, having attacked the appointment

order, since she was also a beneficiary of the impugned order, is not

correct, evident from Ext. P27 report of the 10 th Pay Revision

Commission, Kerala- 2014 produced by the petitioner, from where it is

clear that the first petitioner was holding the post of Chief Government R.P. No. 513/2021

Analyst, which is a post above the Joint Commissioner of Food Safety

(Administration and Legal); there was no additional benefit to the first

petitioner and; further that the first petitioner was holding the post of

Joint Food Safety Commissioner (Food Safety Laboratory) in addition

to the post of Chief Government Analyst. According to the Review

Petitioners, this Court has arrived at the final conclusions substantially

depending on the said observation made by this Court and therefore,

there is a clear error apparent on the face of the record to review the

judgment.

3. It was also contended that the first petitioner has filed only

one complaint before the central authority against conferring IAS to

the 6th respondent. However, a finding is made in the judgment that

the complaint filed by the first petitioner was in continuation of the

previous complaints as if to appear that the first petitioner had filed

complaints earlier. However, fact remains, there were other

complaints forwarded against the 6th respondent to the Central

authority against conferring of IAS and in that context only, in the

judgment, we have observed that the complaint filed by the petitioners

against the 6th respondent is only continuation of the complaints filed

earlier.

R.P. No. 513/2021

4. We have heard the learned counsel for the Review Petitioners

Sri. T.V. Ajayakumar, Sri. Tek Chand, learned Senior Government

Pleader, Sri P.C Sasidaran for the P.S.C, and the learned counsel

appearing for the 6th respondent Sri P. Nandakumar, and perused the

pleadings and materials on record.

5. Insofar as the observation against the first petitioner

contained in paragraph 81 of the judgment and other paragraphs is

concerned, we intended only to state that the first petitioner was also

conferred with a benefit by appointing her as the Joint Commissioner

of Food Safety (Food Safety Laboratory) by the very same impugned

order and therefore, the first petitioner cannot turn around and attack

the said order issued by the State Government exercising its power

under Article 162 of the Constitution of India.

6. Anyhow, we realise that evident from Ext. P27, the petitioner

was holding the post of Chief Analyst and the additional charge given

to her as the Joint Food Safety Commissioner (Food Laboratory) is a

post which is below the post of the Chief Analyst. Anyhow, the said

observation was not at all the basis for us to have arrived at the

conclusion that the petitioners have not made out any ground for

securing a writ of quo warranto, since the findings were rendered and R.P. No. 513/2021

conclusions arrived at based upon the power exercised by the State

Government under Article 162 of the Constitution of India. The

observations with respect to the attitude of the first petitioner was

made by us only to point out that the first petitioner has no moral right

to challenge the impugned order, since she was a beneficiary of the

same. Therefore, the observations contained in the judgment in

question against the first petitioner were not made to have any

adverse consequences against her.

7. Anyhow, we clarify, that the said findings in view of Ext. P27

hierarchy fixed by the Government ought to have been avoided and

therefore, we eschew the adverse findings against the first petitioner.

Whatever that be, we are of the clear opinion that the observation

made against the first petitioner was immaterial for us to have arrived

at the conclusions in the judgment in question and therefore, the said

observations or any other observations on the basis of the material

available on record cannot be projected as an error apparent on the

face of the record, while rendering the findings and dismissing the writ

petition on other material aspects and substantive grounds .

8. In the facts and circumstances and bearing in mind the law

relating to entertaining Review Petitions, we do not find any error R.P. No. 513/2021

apparent on the face of the record or other legal infirmities justifying

us to review the judgment in question.

Needless to say, the Review Petition fails and accordingly, it is

dismissed.

sd/-

S. MANIKUMAR, CHIEF JUSTICE.

sd/-

SHAJI P. CHALY, JUDGE.

Rv R.P. No. 513/2021

APPENDIX

PETITIONERS' ANNEXURES:

ANNEXURE I: TRUE COPY OF THE ARGUMENT NOTE.

ANNEXURE II: TRUE COPY OF THE I.A. NO. 1/2021 IN W.P.(C) NO.35220/2019 FILED BY THE PETITIONERS ON 19.01.2021.

RESPONDENTS' ANNEXURES: NIL

/True Copy/

PS to Judge.

rv