Kerala High Court
State Of Kerala vs P.Valsaraj on 9 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
THURSDAY, THE 9TH DAY OF JUNE 2022 / 19TH JYAISHTA, 1944
RP NO. 697 OF 2021
AGAINST THE ORDER/JUDGMENT IN WP(C) 2983/2015 OF HIGH
COURT OF KERALA
REVIEW PETITIONER/S:
1 THE DIRECTOR
AGENCY FOR NEW AND RENEWABLE ENERGY RESEARCH AND
TECHNOLOGY (ANERT),
(FORMERLY KNOWN AS AGENCY FOR NON- CONVENTIONAL ENERGY
AND RURAL TECHNOLOGY),
VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN-695 033
2 AGENCY FOR NEW AND RENEWABLE ENERGY RESEARCH AND
TECHNOLOGY (ANERT),
(FORMERLY KNOWN AS AGENCY FOR NON- CONVENTIONAL ENERGY
AND RURAL TECHNOLOGY),
REPRESENTED BY ITS EXECUTIVE COMMITTEE, VIKAS BHAVAN
P.O., THIRUVANANTHAPURAM, PIN-695 033
BY ADV T.R.HARIKUMAR
RESPONDENT/S:
1 P.VALSARAJ
AGENCY FOR NEW AND RENEWABLE ENERGY RESEARCH AND
TECHNOLOGY (ANERT), ENERGY AND RURAL TECHNOLOGY),
VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN-695 033
2 V.KAMALA DEVI,
SCIENTIST B, AGENCY FOR NEW AND RENEWABLE ENERGY RESEARCH
AND TECHNOLOGY (ANERT), VIKAS BHAVAN P.O.,
THIRUVANANTHAPURAM, PIN-695 033
3 STATE OF KERALA,
REPRESENTED BY THE SECRETARY,
POWER DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM,PIN-695 001
BY ADV VISHNU S.CHEMPAZHANTHIYIL
THIS REVIEW PETITIONS HAVING COME UP FOR ADMISSION
ALONG WITH R.P NO. 847 OF 2021, ON 09.06.2022, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
RP NOs. 697 & 847 OF 2021
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
THURSDAY, THE 9TH DAY OF JUNE 2022 / 19TH JYAISHTA, 1944
RP NO. 847 OF 2021
AGAINST THE ORDER/JUDGMENT IN WP(C) 2983/2015 OF HIGH
COURT OF KERALA
REVIEW PETITIONER/S:
STATE OF KERALA
REPRESENTED BY THE SECRETARY, POWER DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.
BY ADV GOVERNMENT PLEADER
RESPONDENT/S:
1 P.VALSARAJ
AGENCY FOR NON-CONVENTIONAL ENERGY AND RURAL
TECHNOLOGY(ANERT),
VIKAS BHAVAN.P.O, THIRUVANANTHAPURAM-695033.
2 V.KAMALADEVI,
SCIENTIST-B, AGENCY FOR NON-CONVENTIONAL ENERGY
AND RURAL TECHNOLOGY(ANERT),
VIKAS BHAVAN.P.O, THIRUNANTHAPURAM-695033.
3 THE DIRECTOR,
AGENCY FOR AND RENEWABLE ENERGY RESEARCH AND
TECHNOLOGY(ANERT),
(FORMERLY KNOWN AS AGENCY FOR NON- CONVENTIONAL
ENERGY AND RURAL TECHNOLOGY),
VIKAS BHAVAN.P.O,THIRUVANANTHAPURAM-695001.
4 AGENCY FOR NEW AND RENEWABLE ENERGY RESEARCH AND
TECHNOLOGY(ANERT),
(FORMERLY KNOWN AS AGENCY FOR NON-CONVENTIONAL
ENERGY AND RURAL TECHNOLOGY),
VIKAS BHAVAN.P.O, THIRUVANANTHAPURAM-695033.
BY ADV S.VISHNU
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION
ALONG WITH R.P NO. 697 OF 2021, ON 09.06.2022, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
RP NOs. 697 & 847 OF 2021
3
JUDGMENT
These review petitions are filed seeking to review the judgment
dated 5.12.2019 in W.P.(C) No.2983/2015. R.P.No.697/2021 is filed by
the Director, Agency for New and Renewable Energy Research and
Technology (ANERT) and R.P.No. 847/2021 is filed by the State seeking
the very same prayer. In both the review petitions, it is stated that the
respondents were not able to place Annexure-1 order vide No. G.O.(Rt)
No.13/2010/PD dated 16.1.2010 before this Court at the time of
consideration of the writ petition and according to the review petitioners,
if the same had been produced the result would have been different. It
is contended that the promotion granted to the petitioners on the basis
of Annexure-III order produced in R.P.No.697/2021 was improper. It is
also contended that the grant of promotions to the writ petitioners
retrospectively relaxing all procedures stipulated in the CSR norms was
an egregious act and based on serious misrepresentation and faulty
practices.
2. I have heard Smt. Nisha Bose, the learned Government
pleader, Sri. Arjun Raghavan, the learned counsel appearing for the
review petitioners and Sri. Vishnu Chempazhanthiyil, the learned counsel
appearing for the respondents 1 and 2.
RP NOs. 697 & 847 OF 2021
3. At the outset, with regard to the scope of review jurisdiction,
the Apex Court in Moran Mar Basselios Catholicos v. Most Rev. Mar
Poulose Athanasius [AIR 1954 SC 526] highlighted the limitations in
the application of review and it was observed that the scope of an
application for review is much more restricted than that of an appeal.
Under Order 47 Rule 1 of the Code of Civil Procedure, 1908, the court of
review has only a limited jurisdiction circumscribed by the definitive limits
fixed by the language used therein. It may allow a review on three
specified grounds, namely (i) discovery of new and important matter or
evidence which, after the exercise of due diligence, was not within the
applicant's knowledge or could not be produced by him at the time when
the decree was passed, (ii) mistake or error apparent on the face of the
record and (iii) for any other sufficient reason.
4. In Shivdev Singh & Others v. State Of Punjab &
Others [AIR 1963 SC 1909], the Apex Court had held that there is
nothing in Article 226 of the Constitution to preclude a High Court from
exercising the power of review which inheres in every court of plenary
jurisdiction to prevent miscarriage of justice or to correct grave and
palpable errors committed by it. But, there are definitive limits to the
exercise of the power of review. The power of review may be exercised
on the discovery of a new and important matter or evidence that after
RP NOs. 697 & 847 OF 2021
the exercise of due diligence was not within the knowledge of the person
seeking the review or could not be produced by him at the time when
the order was made; it may be exercised where some mistake or error
apparent on the face of the record is found; it may also be exercised on
any analogous ground. But, it may not be exercised on the ground that
the decision was erroneous on merits.
5. In Lily Thomas v. Union of India, (2000) 6 SCC
224 it was observed as follows in para 56 of the judgment
56. It follows, therefore, that the power of review can be
exercised for the correction of a mistake but not to substitute a
view. Such powers can be exercised within the limits of the
statute dealing with the exercise of power. The review cannot be
treated like an appeal in disguise. The mere possibility of two
views on the subject is not a ground for review.
6. In the light of the above principles, if the records are
perused, what comes out is that the respondents 1 and 2 (hereinafter
referred to as the 'Scientists'), were recruited after a National Level
Recruitment Process in ANERT. They were offered pay and service
conditions comparable to those existing in organizations such as
CSIR/ICAR/UGC and other similar organizations of the Government of
India. In the year 2006, they approached this Court and filed W.P.(C)
No.27417/2006 complaining that they were denied the pay and
allowances and other service benefits as provided for in the CSIR pattern
RP NOs. 697 & 847 OF 2021
and for releasing the arrears of salary. A learned Single Judge of this
Court, by judgment dated 20.1.2009, after considering the entire aspects
of the matter, disposed of the writ petition directing the respondents to
consider the petitioners' promotion under the CSIR pattern with effect
from the eligibility date. The Director of ANERT was directed to submit a
proposal to the Government and directions were issued to the
Government to pass orders on the question of promotion and other
allowances. When the directions were not complied with, the Scientists
preferred Contempt Case Civil No. 1373/2009 and based on the affidavit
filed by the Government stating that all the allowances as per CSIR
approved by the State Government have already been allowed to the
petitioners, the Contempt Case was closed by order dated 27.5.2020.
7. While so, G.O.(R.T.) No. 13/2010/PD dated 16.01.2010,
(Annexure-1 in both the review petitions) was issued declining promotion
on the ground that the Screening Committee did not recommend the
Scientists for promotion to the assessment committee on the ground that
the Scientists were not in a position to produce assessment reports or
self-appraisal forms for assessing their eligibility. The Scientists filed
W.P.(C) No.31359/2010 challenging the Government Order dated
16.1.2010. While the writ petition was pending consideration, the
Government came out with G.O.(MS) No.8/2013/PD dated 22.2.2013
RP NOs. 697 & 847 OF 2021
reviewing the Government Order dated 16.1.2010. After detailed
consideration of the entire aspects, the Government accorded promotion
to the Scientists under the CSIR pattern in relaxation of the provisions
concerning screening and assessment process as specified in KSCSTE
Rules with prospective effect. It was however made clear that the said
order shall be subject to the final verdict in W.P.(C) No.31359/2010.
Later, W.P.(C) No.31359/2010 came up for consideration before this Court
and the writ petition was dismissed as withdrawn in the light of
Government Order dated 22.2.2013, reserving liberty to the petitioners to
challenge the Government Order to the extent it declines retrospective
promotion under the CSIR pattern in relaxation of screening and
assessment process specified in KSCSTE Rules if they are so advised. In
tune with the Government Order, the Government issued G.O.(MS)
No.25/2014/PD dated 24.7.2014 clarifying that the Scientists are eligible
for full series of promotions from Scientists B to Scientists F as on the
date of eligibility as per CSIR norms by relaxing the screening and
assessment process. However, it was ordered that promotion up to
22.2.2013 shall be notional and no arrears or other benefits shall be paid
up to 22.2.2013.
8. The petitioners filed W.P.(C) No. 2983/2015 challenging the
Government Order dated 24.7.2014 seeking grant of monetary arrears on
RP NOs. 697 & 847 OF 2021
promotions prior to 22.2.2013 by contending that the delay in grant of
promotions was due to the fault of ANERT and not the petitioners.
9. While so, it appears that on 18.2.2015, the Director, ANERT
issued Annexure-R8 (produced in R.P. No.847/2021) seeking the
constitution of a competent team of experts/senior officials from the
Finance, Law and P & AR Department to thoroughly go through ANERT
records to resolve the issue relating to certain discrepancies of dates with
regard to a report dated 24.2.2012 sent by the Director, ANERT to the
Government, which according to the Director was relied upon by the
Government to grant promotion to the Scientists in relaxation of the
rules. The issue highlighted is that one of the scientists was in charge of
the Registrar during January-February 2012 and that he had forwarded
certain misleading data to gain promotion. The Government considered
the matter and has issued Annexure-R6 (produced in R.P.No.847/2021)
making it clear that the issue has been settled once and for all and there
is no question of reopening the issue. The Director was ordered to
implement the directions issued by the Government pursuant to
directions issued by this Court, and not to seek further clarifications. The
Director was told in no uncertain terms that his request for further
clarifications was unnecessary as it would be tantamount to flouting the
directions issued by this Court.
RP NOs. 697 & 847 OF 2021
10. W.P.(C) No. 2983/2015 came up for consideration before this
Court and by the judgment under review, this Court took the view that
the order passed by the Government denying arrears of pay from the
respective dates from which they were granted promotion was
unsustainable and holding so, the writ petition was allowed directing the
respondents to disburse the arrears of pay to the Scientists from the
respective dates of their promotion within a time frame. This Court had
observed that the ANERT was bound to take necessary steps to carry out
the assessment and obtain the appraisal report at the relevant time and
there was no justification in denying benefits of promotion.
11. The review petitioners contend that there is an error
apparent on the face of the record in as much as G.O.(Rt)
No.13/2010/PD dated 16.1.2010 was not brought to the notice of this
Court. According to the review petitioners, if Annexure-1 was produced,
it would have been clear that assessment proceedings were conducted to
ascertain the merit of the Scientists. I find on a perusal of the records
that reference to Annexure-1 Government order was made by the
Government in paragraph No. 5 of the counter affidavit dated 31.7.2018
and the said document was referred to by this Court in paragraph No. 7
of the judgment. In that view of the matter, the review petitioners
RP NOs. 697 & 847 OF 2021
cannot be heard to contend that Annexure-I order, if produced and
considered at the time of the hearing, would have made a difference.
12. The next contention advanced by the review petitioners to
seek for review is with regard to Annexure-IV issued by the Senior Audit
Officer on 12.3.2020 calling for a report from the Director. In the said
report, it has been stated that the action of the Director hiding vital facts
before the Government was highly irregular and this had led to the grant
of undue promotions to the Scientists with retrospective effect relaxing
all norms/evaluation and assessments. At this juncture, it would be
apposite to bear in mind that the judgment in W.P.(C) No. 2983/2015
was rendered on 5.12.2019 much prior to the issuance of Annexure-IV.
Furthermore, the petitioners have placed on record Annexure-R(2) and
R(3) (produced in R.P.No.847/2021), which reveals that reminders were
sent by the Audit Officer on 24.6.2021 and on 8.12.2021 and no report
as called for was submitted. In view of the decisions rendered by this
Court in the earlier judgments and in view of the stand taken by the
Government in Annexure-R6, I am of the considered opinion that the
request for clarification from the audit officer is no reason to seek review
of the judgment.
RP NOs. 697 & 847 OF 2021
13. I find that a writ petition was filed by a person claiming to
be a public-spirited citizen as W.P.(C) No. 9622/2021, seeking issuance
of a writ of quo warranto challenging the appointment of the Scientists.
He had also sought a declaration that the Scientists are not eligible to be
promoted from the post of Scientist B to Scientist F by relaxing the
screening and assessment process. A Division Bench of this Court had
the occasion to consider the matter and has held by judgment dated
17.5.2021 that no illegality or arbitrariness could be pointed out in the
order passed by the State Government. While disposing of the matter,
the Division Bench had the opportunity to delve into all the aspects, and
the stand taken by the Government relaxing the screening and
assessment process was found to be proper.
14. It is settled by now that the scope of the appellate powers
and the review powers are well defined. The power of review under
Order 47 Rule 1 of the Code of Civil Procedure, 1908 is very limited and it
may be exercised only if there is a mistake or an error apparent on the
face of the record. The power of review is not to be confused with the
appellate power. The review petition/application cannot be decided like a
regular intra-court appeal.
RP NOs. 697 & 847 OF 2021
15. As discussed earlier, the grounds raised by the petitioners
seeking review of the judgment are not within the purview of the powers
of review as provided under Order XLVII of the CPC. This ground, if
believed, disturbs the judgment under review on merits, which is
obviously not the scope of review. The petitioners have not been
successful in making out any case necessitating interference by this Court
by way of review of its earlier judgment. To conclude, upon consideration
of the settled position of law in this regard and having considered the
submissions made by the respective parties and in view of the
observations made in the preceding paragraphs, I am of the clear opinion
that in the instant case, no review, as prayed for, is permissible and in
consequence thereof, the prayer for review, as has been made by the
petitioners, stands rejected.
These Review Petitions will stand dismissed.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
PS/12/6/2022
RP NOs. 697 & 847 OF 2021
APPENDIX OF RP 697/2021
PETITIONER ANNEXURES
Annexure I A TRUE COPY OF THE G.O(RT)
NO.13/2010/P.D.DATED 16.01.2010
Annexure II A TRUE COPY OF THE ORDER NUMBER AS
A.O.NO.34/HRM/ANERT/2011 DATED 24.02.2011
Annexure III A TRUE COPY OF THE COVERING LETTER NUMBERED AS
1176/HRM/2012/ANERT DATED 24.02.2012 ALONG
WITH REPORT
Annexure IV A TRUE COPY OF THE RELEVANT PAGES OF THE
INSPECTION REPORT ALONG WITH COVERING LETTER
DATED 12.03.2020
Annexure V A TRUE COPY OF THE RELEVANT PAGES OF THE CSIR
SCIENTIST RECRUITMENT & PROMOTION RULED , 2001
Annexure VI A TRUE COPY OF THE LETTER ISSUED BY THE 1ST
PETITIONER TO THE 3RD RESPONDENT NUMBERED AS
780/HRM/15/ANERT DATED 06.09.2021
Annexure VII A TRUE COPY OF THE NOTE NUMBERED AS
ANERT-TECH/182/201-PE2 (RTS) DATED 29.07.2021
Annexure VIII A TRUE COPY OF THE REPLY DATED 30.07.2021
FURNISHED BY THE 1ST RESPONDENT
Annexure IX A TRUE COPY OF THE REPLY DATED 29.07.2021
FURNISHED BY THE 2ND RESPONDENT
RP NOs. 697 & 847 OF 2021
RESPONDENT ANNEXURES
Annexure R1 TRUE COPY OF THE FORWARDING LETTER NO.
CA/IV/12-8607/310 DATED 12.03.2020 SENDING THE
INSPECTION REPORT BY AUDIT FOR THE PERIOD 2017-19
ISSUED BY THE SENIOR AUDIT OFFICER/CA IV TO THE
DIRECTOR, ANERT
Annexure R2 TRUE COPY OF COMMUNICATION NO.ECA
IIA/12-8607/2017-19/14/59 DATED 24.06.2021 ISSUED
BY THE OFFICE OF THE PRINCIPAL ACCOUNTANT GENERAL
(AUDIT-II) KERALA TO THE DIRECTOR, ANERT.
Annexure R3 ATRUE COPY OF COMMUNICATION NO.ECA
IIA/12-8607/2017-19/21-22/44/36 DATED 08.12.2021
ISSUED BY THE OFFICE OF THE PRINCIPAL ACCOUNTANT
GENERAL (AUDIT-II) KERALA TO THE DIRECTOR, ANERT.
Annexure R4 A TRUE COPY OF THE JUDGMENT DATED 17.05.2021 IN
W.P(C.) NO. 9622/2021 OF THE HON'BLE HIGH COURT
Annexure R5 TRUE COPY OF THE NOTES FOR THE 14TH EXECUTIVE
COMMITTEE MEETING OF ANERT
Annexure R6 TRUE COPY OF COMMUNICATION NO.5778/P.S2/2014/POWER
DATED 26.08.2015 ISSUED BY THE GOVERNMENT OF
KERALA, POWER DEPARTMENT
Annexure R7 TRUE COPY OF STATEMENT SUBMITTED BY FORMER
DIRECTOR, P.B. SUGHTHAKUMAR IN COMPLAIN NO.
510/2016 BEFORE THE KERALA LOK AYUKTA.
RP NOs. 697 & 847 OF 2021
APPENDIX OF RP 847/2021
PETITIONER ANNEXURES
Annexure I TRUE COPY OF G.O.(RT)NO.13/2010/PD DATED
16.01.2020.
Annexure II TRUE COPY OF THE GOVERNMENT ORDER
G.O.(MS)NO.8/2013/PD DATED 22.02.2013.
Annexure III TRUE COPY OF THE GOVERNMENT OIRDER
G.O.(MS)NO.25/2014//PD DATED 24.07.2013.
Annexure IV TRUE COPY OF THE RELEVANT PAGES OF THE
INSPECTION REPORT ALONG WITH COVERING LETTER
DATED 13.03.2020.
Annexure V TRUE COPY OF THE LETTER DATED ISSUED BY THE
ANERT 3RD RESPONDENT TO THE GOVERNMENT
NUMBERED AS 780/HTM/15/ANERT DATED 06.09.2021.
RESPONDENT ANNEXURES
Annexure R1 TRUE COPY OF THE FORWARDING LETTER NO.
CA/IV/12-8607/310 DATED 12.03.2020 SENDING THE
INSPECTION REPORT BY AUDIT FOR THE PERIOD 2017-19
ISSUED BY THE SENIOR AUDIT OFFICER/CA IV TO THE
DIRECTOR, ANERT
Annexure R2 TRUE COPY OF COMMUNICATION NO.ECA
IIA/12-8607/2017-19/14/59 DATED 24.06.2021 ISSUED
BY THE OFFICE OF THE PRINCIPAL ACCOUNTANT GENERAL
(AUDIT-II) KERALA TO THE DIRECTOR, ANERT.
Annexure R3 ATRUE COPY OF COMMUNICATION NO.ECA
IIA/12-8607/2017-19/21-22/44/36 DATED 08.12.2021
ISSUED BY THE OFFICE OF THE PRINCIPAL ACCOUNTANT
GENERAL (AUDIT-II) KERALA TO THE DIRECTOR, ANERT.
Annexure R4 A TRUE COPY OF THE JUDGMENT DATED 17.05.2021 IN
RP NOs. 697 & 847 OF 2021
W.P(C.) NO. 9622/2021 OF THE HON'BLE HIGH COURT
Annexure R5 TRUE COPY OF THE NOTES FOR THE 14TH EXECUTIVE
COMMITTEE MEETING OF ANERT
Annexure R6 TRUE COPY OF COMMUNICATION NO.5778/P.S2/2014/POWER
DATED 26.08.2015 ISSUED BY THE GOVERNMENT OF
KERALA, POWER DEPARTMENT
Annexure R7 TRUE COPY OF STATEMENT SUBMITTED BY FORMER
DIRECTOR, P.B. SUGHTHAKUMAR IN COMPLAIN NO.
510/2016 BEFORE THE KERALA LOK AYUKTA.
Annexure R8 TRUE COPY OF COMMUNICATION NO. 1176/HRM/2012/ANERT
DATED 18.02.2015 ISSUED BY THE DIRECTOR, ANERT TO
THE SECRETARY, POWER DEPARTMENT.
