Kerala High Court
Lency Michael I.M vs State Of Kerala on 29 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
WEDNESDAY, THE 29TH DAY OF MARCH 2023 / 8TH CHAITHRA, 1945
RP NO. 1124 OF 2022
AGAINST THE JUDGMENT DT. 04.01.2017 IN WP(C) 16157/2015 OF
HIGH COURT OF KERALA
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REVIEW PETITIONERS/PETITIONERS:
1 LENCY MICHAEL I.M.
AGED 42 YEARS
W/O LATE JOFRY T. FRANCIS, LABORATORY ASSISTANT,
PHYSICS DEPARTMENT, ST. ALBERT'S COLLEGE,
ERNAKULAM - 682018 RESIDING AT THOTTUNGAL HOUSE,
VYLOPPILLI LANE, AZAD ROAD, KALOOR,
KOCHI - 682017.
2 SIMON D'CRUZ,
AGED 41 YEARS
S/O JOSEPH D'CRUZ, LABORATORY ASSISTANT, CHEMISTRY
DEPARTMENT, ST. ALBERT'S COLLEGE,
ERNAKULAM - 682018 RESIDING AT KANISSERY HOUSE,
CUSAT P.O., SOUTH KALAMASSERY,
KOCHI - 682022.
3 ANTONY JOSE PETER,
AGED 44 YEARS
S/O CJ PETER, LABORATORY ASSISTANT, ZOOLOGY
DEPARTMENT, ST. ALBERT'S COLLEGE,
ERNAKULAM - 682018 RESIDING AT CHEMMAYATH HOUSE,
OACHANTHURUTHU P.O., ERNAKULAM - 682508.
4 LANSON XAVIOUR,
AGED 32 YEARS
S/O JOSEY KX, LABORATORY ASSISTANT, CHEMISTRY
DEPARTMENT, ST. ALBERT'S COLLEGE, ERNAKULAM -
682018 RESIDING AT KOTTIYATH HOUSE, AYYAMPILLI
KAVU ROAD, EROOR P.O., THRIPPUNITHURA.
HEADNOTE-RP NO. 1124 OF 2022
-: 2 :-
5 VINU FRANCIS,
AGED 37 YEARS
S/O FRANCIS KL, LIBRARY ASSISTANT, ST.
ALBERT'S COLLEGE, ERNAKULAM - 682018 RESIDING
AT KUTHUKATT HOUSE, PERANDOOR TEMPLE ROAD,
PANAKKAPADOM LANE, ELAMAKKARA, KOCHI - 682026.
BY ADVS.
S.MUHAMMED HANEEFF
M.H.ASIF ALI
SWETHAMBILY C.
RAJANA JOSE
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT, HIGHER
EDUCATION (D) DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 DIRECTOR OF COLLEGIATE EDUCATION,
DIRECTORATE OF COLLEGIATE EDUCATION, VIKAS
BHAVAN, THIRUVANANTHAPURAM-695 033.
3 THE DEPUTY DIRECTOR COLLEGIATE EDUCATION,
ERNAKULAM - 682011.
4 MAHATMA GANDHI UNIVERSITY
REPRESENTED BY THE REGISTRAR, MAHATMA GANDHI
UNIVERSITY P.O., ATHIRAMPUZHA, KOTTAYAM.
5 THE MANAGER,
ST. ALBERT'S COLLEGE, REPRESENTED BY THE
PRINCIPAL, ERNAKULAM, KOCHI - 682018.
6 ST. ALBERT'S COLLEGE,
REPRESENTED BY THE PRINCIPAL, ERNAKULAM,
KOCHI - 682018.
HEADNOTE-RP NO. 1124 OF 2022
-: 3 :-
BY ADVS.
SHERRY J. THOMAS
JOEMON ANTONY
ANTONY NILTON REMELO
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION
ON 29.03.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
SATHISH NINAN, J.
= = = = = = = = = = = = = = = = = =
R.P. No.1124 of 2022 in
W.P.(C) No.16157 of 2015
= = = = = = = = = = = = = = = = = =
Dated this the 29th day of March, 2023
O R D E R
By this Review Petition, the writ petitioners seek
for review of the judgment in writ petition delivered on
04.01.2017. The issue involved in the writ petition
related to appointment of Lab Assistants/Library
Assistants in the sixth respondent-College.
2. In terms of Statue 69 of Chapter XLV of the
Mahatma Gandhi University First Statutes appointments to
the post of Lab Assistant/Library Assistant is to be by
promotion from the next lower category based on
seniority. If no candidates are available for promotion,
the post shall be filled up by direct recruitment. For
such promotion, pass in attender's test conducted by the
PSC is mandatory.
3. Since there were no eligible candidates, the
College approached the Government seeking promotion to
R.P. No.1124 of 2022 in
W.P.(C) No.16157 of 2015
conduct direct recruitment to the posts of Lab
Assistant/Library Assistant. The Government granted
concurrence and in the selection, the petitioners were
selected. The petitioners did not and could not possess
pass in attender's test since it is a test conducted by
the PSC for in-service candidates alone. In the light of
the above, the Government ordered downgrading of six
posts of Lab Assistants/Library Assistants in the
College to the post of Last Grade Servants, with a
direction to disburse salary admissible to the Last
Grade Servants.
4. This Court as per the judgment sought to be
reviewed directed that the appointment of the
petitioners as Last Grade Servants shall be approved
with effect from the date of appointment and allowing
them three consecutive chances to appear in the
attender's test, and allow them to continue on the
admissible salary of Last Grade Servants till they
R.P. No.1124 of 2022 in
W.P.(C) No.16157 of 2015
acquire qualification.
5. Review of the judgment is sought on the ground
that the court failed to take note of the proviso to
statute 44(12) of Chapter V:-
"Library Assistants/" SSLC or equivalent with a pass in
Laboratory Assistants Attenders Test conducted by the
Kerala Public Service Commission.
Technical qualification or
experience required in the particular
section, department or institution:
For appointment by transfer from 1) Pass in Form III (Std. VII
members of last grade staff and new) or equivalent.
specimen collectors employed in the 2) Pass in Attenders Test
private college or colleges. conducted by the Kerala
Public Service Commission.
or
1) Five years regular service
under private colleges
2) Pass in Attenders Test
conducted by the Kerala
Public Service Commission.
Provided that the last grade staff who possess the qualifications
mentioned above excepting pass in Attender's test and who were either in
service on 31.03.1971 or who are in regular permanent service will be
eligible for appointment in the order of seniority, as Library
Assistants/Laboratory Assistants. Their continuance as Library
Assistants/Laboratory Assistants shall however, be subject to their passing
in one of the five consecutive Attender's tests conducted by the Kerala
Public Service Commission for the last grade staff of the Private Colleges.
Such of those who remain unqualified in the Attender's Test even after five
consecutive chances shall be reverted to their original posts.
.........................."
R.P. No.1124 of 2022 in
W.P.(C) No.16157 of 2015
6. The first proviso applies to Last Grade Servants
who are in regular permanent service but not passed in
attender's test. The proviso says that they shall be
eligible for promotion in the order of seniority subject
to their passing of the attender's test in five
consecutive chances. Those who fail to clear the test
even after five consecutive chances shall be reverted.
7. On a plain reading of the provision, it would
appear that the same applies only in the case of Last
Grade Servants in regular permanent service. In W.P.(C)
No.8766/2017, this Court as per judgment dated
06.07.2022 held that such benefit could be granted to
direct recruits also. The judgment was affirmed by a
Division Bench in W.A. No.1766/2022 as per judgment
dated 09.02.2023. The petitioners seek benefit of the
said judgments.
8. A subsequent judgment is not a ground for
review. It cannot be said that the proviso to Statute
R.P. No.1124 of 2022 in
W.P.(C) No.16157 of 2015
44(12) was overlooked by the court since on a plain
reading the provision applies only for Last Grade Staff
in regular permanent service and not to direct recruits.
It is by virtue of the judgment of this Court that such
benefit is extended to direct recruits. Therefore, there
is no omission to consider an applicable statutory
provision. In the writ petition no such argument seeking
extension of the principle under the proviso was raised.
A review is not a rehearing or an appeal. There is
no error apparent on the face of the record. No ground
for review is made out. The Review Petition fails and is
dismissed.
Sd/-
SATHISH NINAN
JUDGE
kns/-
//True Copy//
P.S. to Judge
