Kerala High Court
Dr Thara S.S vs University Of Calicut on 26 August, 2025
Author: Anil K.Narendran
Bench: Anil K.Narendran
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RP No.643 of 2025 and
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
TUESDAY, THE 26TH DAY OF AUGUST 2025 / 4TH BHADRA, 1947
RP NO. 410 OF 2023
AGAINST THE JUDGMENT DATED 03.02.2023 IN WA NO.1527 OF 2021
OF HIGH COURT OF KERALA
REVIEW PETITIONERS/NON PARTIES IN THE WRIT APPEAL:
1 DR THARA S.S.
AGED 46 YEARS
W/O AJITH KUMAR G., SNEHA, AMC 10/277, RRVRA 127,
VELANKONAM, ATTINGAL P.O., THIRUVANANATHAPURAM
DISTRICT, PIN - 695101
2 SOUMYA K.C.
AGED 35 YEARS
D/O CHOYIKUTTY K.C., KALLADICHUDALAYIL HOUSE,
VELIMANNA P.O., OMASSERY (VIA), KOZHIKODE DISTRICT,
PIN - 673582
3 SURESH PUTHENPARAMBIL
AGED 41 YEARS
S/O. CHERIYAKORAN, PUTHENPARAMBIL HOUSE, VALAKKULAM
P.O., KOZHICHENA, MALAPPURAM DISTRICT, PIN - 676508
BY ADVS.
SMT.NISHA GEORGE
SRI.GEORGE POONTHOTTAM (SR.)
SRI.A.L.NAVANEETH KRISHNAN
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RESPONDENTS/RESPONDENTS/APPELLANT:
1 UNIVERSITY OF CALICUT
REPRESENTED BY ITS REGISTRAR, CALICUT UNIVERSITY P.O.,
THENJIPALAM, MALAPPURAM, PIN - 673635
2 THE REGISTRAR
UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O.,
THENJIPALAM, MALAPPURAM, PIN - 673635
3 THE VICE CHANCELLOR
UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O.,
THENJIPALAM, MALAPPURAM, PIN - 673635
4 DR PRAMOD C.
ASSISTANT PROFESSOR, DEPARTMENT OF BOTANY, UNIVERSITY
OF CALICUT, CALICUT UNIVERSITY P.O., THENJIPALAM,
MALAPPURAM, PIN - 673635
5 DR ANUPAMA K.P.
AGED 35 YEARS
RESIDING AT SOMA NIVAS, PALLIKKAL P.O., MALAPPURAM,
PIN - 673634
BY ADVS.
SRI.T.B.HOOD
SMT.M.ISHA
SRI.P.C SASIDHARAN, SC, UNIVERSITY
THIS REVIEW PETITION WAS FINALLY HEARD ON 11.08.2025 ALONG
WITH RP NO.643 OF 2025, THE COURT ON 26.08.2025 PASSED THE
FOLLOWING:
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410 of 2023 2025:KER:64729
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
TUESDAY, THE 26TH DAY OF AUGUST 2025 / 4TH BHADRA, 1947
RP NO. 643 OF 2025
AGAINST THE JUDGMENT DATED 03.02.2023 IN WA NO.1527 OF 2021
OF HIGH COURT OF KERALA
REVIEW PETITIONERS/3RD PARTY SEEKING REVIEW:
1 SHIBLI K.
AGED 31 YEARS
S/O. UMMER KUTTY K., ILLIES LAND, NEAR MUNSIFF COURT,
TALIPARAMBA P.O KANNUR, PIN - 670141
2 NAJELA KOTTA PUTHUPARAMBATH
AGED 35 YEARS
D/O. UMMER KOTTA PUTHUPARAMBATH, MUTHU HOUSE, MONGAM,
MORAYUR, MALAPPURAM, PIN - 673642
3 JOSHIN JOSEPH
AGED 32 YEARS
S/O. P.C.JOSEPH, PARIYATH HOUSE, KURIANAD P.O,
MONIPPALLY, KOTTAYAM, PIN - 686636
BY ADV SRI.ISAAC KURUVILLA ILLIKAL
RESPONDENTS/APPELLANT/RESPONDENTS:
1 DR.ANUPAMA K.P.
AGED 35 YEARS
RESIDING AT SOMA NIVAS, PALLIKKAL P.O., MALAPPURAM,
PIN - 673634
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2 UNIVERSITY OF CALICUT
REPRESENTED BY ITS REGISTRAR, CALICUT UNIVERSITY P.O.,
THENJIPALAM, MALAPPURAM, PIN - 673635
3 THE REGISTRAR
UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O.,
THENJIPALAM, MALAPPURAM, PIN - 673635
4 THE VICE CHANCELLOR
UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O.,
THENJIPALAM, MALAPPURAM, PIN - 673635
5 DR.PRAMOD C.
ASSISTANT PROFESSOR, DEPARTMENT OF BOTANY, UNIVERSITY
OF CALICUT, CALICUT UNIVERSITY P.O., THENJIPALAM,
MALAPPURAM, PIN - 673635
BY ADVS.
SRI.T.B.HOOD
SMT.M.ISHA
SRI.P.C.SASIDHARAN, SC, UNIVERSITY
THIS REVIEW PETITION WAS FINALLY HEARD ON 11.08.2025 ALONG
WITH RP NO.410 OF 2023, THE COURT ON 26.08.2025 PASSED THE
FOLLOWING:
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COMMON ORDER
Muralee Krishna, J.
The petitioners in these review petitions are third parties to
W.A.No.1527 of 2021, who have filed the respective review
petitions under Order XLVII Rule 1 read with Section 114 of the
Code of Civil Procedure, 1908 ('CPC' for short), seeking review of
the judgment dated 03.02.2023 passed by a Division Bench of
this Court in that writ appeal.
2. W.A.No.1527 of 2021 was filed by the petitioner in W.P.(C)
No.16456 of 2021, challenging the judgment dated 06.10.2021
passed by the learned Single Judge. The appellant/writ petitioner
was one of the aspirants for the post of Assistant Professor in
various departments of the University of Calicut, notified by Ext.P1
notification dated 31.12.2019 issued by the University. Out of the
total notified vacancies of 63, two vacancies were in the
Department of Journalism and Mass Communication. In Ext.P4
ranked list, the appellant/writ petitioner was placed as rank No.2.
Even though there were two vacancies, the candidate who secured
rank No.1 alone was appointed, stating the reason that the second
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vacancy is one to be earmarked for candidates belonging to special
reservation category 'persons with disabilities' in terms of Section
34 of the Rights of Persons with Disabilities Act, 2016 ('the Act',
for short). Contending that going by the respective dates of
occurrence of vacancies in the Department of Journalism and Mass
Communication, roster points of 31 and 54 are the slots to be
applied for filling up the vacancies that arose in the department,
of which the vacancy corresponding to roster point 31 is a slot due
to open competition candidates and the vacancy corresponding to
roster point 54 is a slot due to candidates belonging to Ezhavas,
Thiyyas, and Billavas Communities (ETB Communities) and insofar
as there were 63 vacancies, the first rank holder should have been
appointed against the vacancy corresponding to roster point 31
and appellant/writ petitioner being the 2 nd rank holder and also a
candidate belonging to the category ETB communities should have
been appointed against the vacancy corresponding to roster point
54, the appellant/writ petitioner filed the writ petition under
Article 226 of the Constitution of India.
3. The learned Single Judge dismissed the writ petition,
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taking the view that since the vacancy corresponding to roster
point 54 has been filled up by appointing a candidate belonging to
ETB communities, though not in the Department of Journalism and
Mass Communication, there is no illegality in the appointments
effected. Being aggrieved by the said judgment, the appellant/writ
petitioner filed W.A. No.1527 of 2021. By relying on the judgments
of the Apex Court in Indra Sawhney v. Union of India [1992
Supp (3) SCC 217], Rajesh Kumar Daria v. Rajasthan Public
Service Commission [(2007) 8 SCC 785], Anil Kumar Gupta
v. State of UP [(1995) 5 SCC 173 ] and R.K Sabharwal v.
State of Punjab [(1995) 2 SCC 745] the Division Bench set
aside the judgment of the learned Single Judge and disposed of
the writ appeal with the following directions:
"i. The University is directed to appoint the petitioner as
Assistant Professor in the Department of Journalism and
Mass Communication in the vacancy corresponding to roster
point 54 forthwith.
ii. The University is also directed to rework the rotation chart
in respect of the appointments already made pursuant to
Ext.P1 notification notionally, following the procedure
prescribed by the Apex Court in Indra Sawhney, Anil Kumar
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Gupta and Rajesh Kumar Daria and retain persons who are
appointed otherwise than in accordance with the said
procedure in supernumerary posts, so that they will not be
affected by this decision and the University will be free to
adjust their appointments against future vacancies as and
when they arise.
iii. It is clarified that in the process of reworking the roster
chart as directed, the University would be free to make up
the shortfall due to the category "persons with disabilities",
if qualified hands are available among the applicants for
selection and if the reservation in favour of the category
"persons with disabilities" cannot be completed even after
following the said procedure, the shortfall can be made up
by earmarking the requisite number of vacancies next
arising in the category of Assistant Professor for the
category "persons with disabilities".
iv. It is also clarified that the direction contained in this
judgment will not affect the rights of parties in pending writ
petitions where the selection and appointments made
pursuant to Ext.P1 notification are already under challenge."
4. The review petitioners are aggrieved by the 2 nd
direction in the judgment of the writ appeal. According to the
petitioners in R.P.No.643 of 2025, the 1 st and 2nd petitioners
belong to the Muslim community and are physically disabled, who
are entitled to the vertical reservation of OBC and in the horizontal
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reservation for persons with disability. The 3 rd petitioner belongs
to Christian community and is entitled to the open category as
well as horizontal reservation for persons with disability. The
petitioners in R.P.No.410 of 2023 are included in the ranked list
dated 04.02.2021 for the post of Assistant Professor in different
subjects in Calicut University. The petitioners contend that the 2 nd
direction in the appeal judgment granted the respondent
University, the right to adjust the appointments of 24 persons who
were illegally appointed against future vacancies as and when they
arise. According to the petitioners, the said direction in the
judgment is an error apparent on the face of the record.
5. Heard the learned Senior Counsel for the petitioners in
R.P.No.410 of 2023, the learned counsel for the petitioners in R.P.
No.643 of 2025, the learned Standing Counsel for the University
of Calicut and the learned counsel for the party respondents.
6. The learned Senior Counsel and the learned counsel for the
petitioners would submit that in the judgment dated 03.02.2023,
the Division Bench declared that the procedure adopted by the
University for effecting reservation in the University was faulty and
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illegal. It was also found in the judgment that the procedure
adopted by the University is violative of Rule 15 of Part II of the
Kerala State and Subordinate Service Rules, since it is contrary to
the rotation turns and that it is violative of the requirement under
Section 34 of the Rights of Persons with Disabilities Act, 2016. It
is also found in that judgment that the persons selected following
the incorrect and wrong procedure have already been appointed
and that they have been working in the University for quite some
time. Therefore, the direction to rework the rotation chart in
respect of the appointments already made pursuant to Ext.P1
notification notionally and thereafter retain persons who are
appointed otherwise than in accordance with the said procedure
in supernumerary posts and to adjust their appointments against
future vacancies as and when they arise is an error apparent on
the face of the record.
7. On the other hand, the learned Standing Counsel for the
University and the learned counsel for the party respondents
would contend that against the judgment in the writ appeal, the
University filed Special Leave Petition before the Apex Court and
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by the order dated 19.05.2023 in Special Leave to Appeal (C)
No.10045 of 2023 the Apex Court dismissed the Special Leave
Petition by a considered order and therefore the judgment in the
writ appeal is merged with the order of the Apex Court and for
that reason the review petitions are not maintainable. It is also
argued by the learned counsel that the 2nd direction in the
judgment is one passed by the Division Bench after considering
the relevant provisions and the judgments governing the field, and
hence it cannot be said as an error apparent on the face of the
record. The learned Standing Counsel would further submit that
the direction in the judgment was already complied.
8. To understand the circumstances that entitle the Court
to exercise its power of review, it would be appropriate to go
through the provisions concerned as well as the law on the point
laid down by the judgments of the Apex Court and that of this
Court. Section 114 and Order XLVII of CPC are the relevant
provisions as far as the review of a judgment or order of a Court
is concerned.
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9. Section 114 of the CPC reads thus:
"114. Review-
Subject as aforesaid, any person considering himself
aggrieved-
(a) by a decree or order from which an appeal is allowed by
this Code, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by
this Code, or
(c) by a decision on a reference from a Court of Small
Causes, may apply for a review of judgment to the Court
which passed the decree or made the order, and the Court
may make such order thereon as it thinks fit."
10. Order XLVII Rule 1 of the CPC reads thus:
"1. Application for review of judgment.
(1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed,
but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is
allowed, or
(c) by a decision on a reference from a Court of Small
Causes,
and who, from the discovery of new and important matter
or evidence which, after the exercise of due diligence was
not within his knowledge or could not be produced by him
at the time when the decree was passed or order made, or
on account of some mistake or error apparent on the face
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of the record or for any other sufficient reason, desires to
obtain a review of the decree passed or order made against
him, may apply for a review of judgment to the Court which
passed the decree or made the order.
(2) A party who is not appealing from a decree or order may
apply for a review of judgment notwithstanding the
pendency of an appeal by some other party except where
the ground of such appeal is common to the applicant and
the appellant, or when, being respondent, he can present
to the Appellate Court the case on which he applies for the
review.
Explanation-
The fact that the decision on a question of law on which
the judgment of the Court is based has been reversed or
modified by the subsequent decision of a superior Court in
any other case, shall not be a ground for the review of such
judgment."
11. It is trite that the power of review under Section 114 read
with Order XLVII of the CPC is available to be exercised only on
setting up any one of the following grounds by the petitioner.
(i) discovery of a new and important matter or evidence, or
(ii) mistake or error apparent on the face of the record, or
(iii) any other sufficient reason.
12. In Northern India Caterers v. Lt. Governor of Delhi
[(1980) 2 SCC 167] the Apex Court held that under the guise
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of review, a litigant cannot be permitted to reagitate and reargue
the questions, which have already been addressed and decided.
13. The Apex Court in Parsion Devi v. Sumitri Devi [(1997)
8 SCC 715] held thus:
"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".
(Underline supplied)
14. In N.Anantha Reddy v. Anshu Kathuria [(2013) 15
SCC 534] the Apex Court held that the mistake apparent on the
face of the record means that the mistake is self-evident, needs
no search, and stares at its face. Surely, review jurisdiction is not
an appeal in disguise. The review does not permit rehearing of the
matter on merits.
15. In Sasi (D) through LRs v. Aravindakshan Nair and
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others [AIR 2017 SC 1432] the Apex Court held that in order
to exercise the power of review, the error has to be self-evident
and is not to be found out by a process of reasoning.
16. In Shanthi Conductors (P) Ltd. v. Assam State
Electricity Board and others [(2020) 2 SCC 677] the Apex
Court by referring to Parsion Devi [(1997) 8 SCC 715] held
thus:
"The scope of review is limited and under the guise of
review, petitioner cannot be permitted to reagitate and
reargue the questions, which have already been addressed
and decided".
17. Again in Govt. of NCT of Delhi v K.L. Rathi Steels
Ltd. [2024 SCC Online SC 1090] the Apex Court considered the
grounds for review in detail and held thus:
"Order XVLII does not end with the circumstances as S.114,
CPC, the substantive provision, does. Review power under
S.114 read with Order XLVII, CPC is available to be
exercised, subject to fulfillment of the above conditions, on
setting up by the review petitioner any of the following
grounds:
(i) discovery of new and important matter or evidence; or
(ii) mistake or error apparent on the face of the record; or
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(iii) any other sufficient reason."
18. In Sujatha Aniyeri v. Kannur University [2025 KHC
OnLine 212] in which one of us is a party [Muralee Krishna S.,
J], after considering the point, what constitutes an error apparent
on the face of the record, this court held that review jurisdiction
is not an appeal in disguise. The review does not permit rehearing
of the matter on merits. If the direction in the judgment was
erroneous, then the remedy was to challenge the same by filing
an appeal and not by filing a review petition.
19. We have carefully verified the judgment dated 03.02.2023
passed by the Division Bench in W.A.No.1527 of 2021. In the
judgment, the Division Bench considered the settled position
pertaining to vertical reservation for candidates belonging to social
reservation and also regarding the horizontal reservation as far as
candidates belonging to special reservation, in detail and reached
to a finding that the procedure adopted by the University in
effecting reservation in favour of persons with disability, as illegal
and faulty. For clarity of understanding the reasoning given by
the Division Bench, we extract paragraphs 13 to 17 of that
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judgment hereunder:
"13. The reservation provided for under the Act in favour of
"persons with disabilities" being one that falls within the
purview of Article 16(1) of the Constitution, there cannot be
any doubt to the proposition that the said reservation has
to be given effect to only horizontally. This aspect has been
clarified by the Apex Court in Indra Sawhney v. Union
of India [(1992) Supp 3 SCC 217]. In addition, in
the said case, the Apex Court has also laid down the
procedure for effecting such reservations. The relevant
portion of paragraph 812 of the judgment reads thus:
"There are two types of reservations, which may, for
the sake of convenience, be referred to as 'vertical
reservations' and 'horizontal reservations'. The
reservations in favour of Scheduled Castes,
Scheduled Tribes and other backward classes [under
Article 16(4)] may be called vertical reservations
whereas reservations in favour of physically
handicapped [under clause (1) of Article 16] can be
referred to as horizontal reservations. Horizontal
reservations cut across the vertical reservations --
what is called interlocking reservations. To be more
precise, suppose 3% of the vacancies are reserved in
favour of physically handicapped persons; this would
be a reservation relatable to clause (1) of Article 16.
The persons selected against this quota will be placed
in the appropriate category; if he belongs to SC
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category he will be placed in that quota by making
necessary adjustments; similarly, if he belongs to
open competition (OC) category, he will be placed in
that category by making necessary adjustments.
Even after providing for these horizontal reservations,
the percentage of reservations in favour of backward
class of citizens remains -- and should remain -- the
same. This is how these reservations are worked out
in several States and there is no reason not to
continue that procedure."
(Underline supplied)
In the context of examining the correctness of the
procedure followed by the Government of Uttar Pradesh and
its authorities in the matter of effecting special reservations
in favour of women for admission to medical courses, the
Apex Court has elaborated and explained the procedure
aforesaid in Anil Kumar Gupta v. State of U.P. [(1995)
5 SCC 173]. Paragraph 18 of the said judgment reads thus:
"18. Now, coming to the correctness of the procedure
prescribed by the revised notification for filling up the
seats, it was wrong to direct the fifteen per cent special
reservation seats to be filled up first and then take up
the OC (merit) quota (followed by filling of OBC, SC and
ST quotas). The proper and correct course is to first fill
up the OC quota (50%) on the basis of merit; then fill
up each of the social reservation quotas, i.e., SC, ST
and BC; the third step would be to find out how many
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candidates belonging to special reservations have been
selected on the above basis. If the quota fixed for
horizontal reservations is already satisfied -- in case it
is an overall horizontal reservation -- no further
question arises. But if it is not so satisfied, the requisite
number of special reservation candidates shall have to
be taken and adjusted/accommodated against their
respective social reservation categories by deleting the
corresponding number of candidates therefrom. (If,
however, it is a case of compartmentalised horizontal
reservation, then the process of verification and
adjustment/accommodation as stated above should be
applied separately to each of the vertical reservations.
In such a case, the reservation of fifteen per cent in
favour of special categories, overall, may be satisfied
or may not be satisfied.) Because the revised
notification provided for a different method of filling the
seats, it has contributed partly to the unfortunate
situation where the entire special reservation quota has
been allocated and adjusted almost exclusively against
the OC quota." (Underline supplied)
In the context of special reservation for women provided for
in the Rajasthan Judicial Service, the Apex Court has
elaborated further the procedure aforesaid in Rajesh
Kumar Daria v. Rajasthan Public Service
Commission [(2007) 8 SCC 785] . Paragraph 9 of the
said judgment reads thus:
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"9. The second relates to the difference between the
nature of vertical reservation and horizontal
reservation. Social reservations in favour of SC, ST and
OBC under Article 16(4) are "vertical reservations".
Special reservations in favour of physically
handicapped, women, etc., under Articles 16(1) or
15(3) are "horizontal reservations". Where a vertical
reservation is made in favour of a Backward Class
under Article 16(4), the candidates belonging to such
Backward Class, may compete for non-reserved posts
and if they are appointed to the non-reserved posts on
their own merit, their number will not be counted
against the quota reserved for respective Backward
Class. Therefore, if the number of SC candidates, who
by their own merit, get selected to open competition
vacancies, equals or even exceeds the percentage of
posts reserved for SC candidates, it cannot be said that
the reservation quota for SCs has been filled. The entire
reservation quota will be intact and available in addition
to those selected under open competition category.
[Vide Indra Sawhney, R.K.Sabharwal v. State of
Punjab, Union of India v. Virpal Singh Chauhan and
Ritesh R.Sah v. Dr. Y.L.Yamul]. But the aforesaid
principle applicable to vertical (social) reservations will
not apply to horizontal (special) reservations. Where a
special reservation for women is provided within the
social reservation for Scheduled Castes, the proper
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procedure is first to fill up the quota for Scheduled
Castes in order of merit and then find out the number
of candidates among them who belong to the special
reservation group of "Scheduled Caste women". If the
number of women in such list is equal to or more than
the number of special reservation quota, then there is
no need for further selection towards the special
reservation quota. Only if there is any shortfall, the
requisite number of Scheduled Caste women shall have
to be taken by deleting the corresponding number of
candidates from the bottom of the list relating to
Scheduled Castes. To this extent, horizontal (special)
reservation differs from vertical (social) reservation.
Thus women selected on merit within the vertical
reservation quota will be counted against the horizontal
reservation for women. Let us illustrate by an example:
If 19 posts are reserved for SCs (of which the quota for
women is four), 19 SC candidates shall have to be first
listed in accordance with merit, from out of the
successful eligible candidates. If such list of 19
candidates contains four SC woman candidates, then
there is no need to disturb the list by including any
further SC woman candidate. On the other hand, if the
list of 19 SC candidates contains only two woman
candidates, then the next two SC woman candidates in
accordance with merit, will have to be included in the
list and corresponding number of candidates from the
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bottom of such list shall have to be deleted, so as to
ensure that the final 19 selected SC candidates contain
four woman SC candidates. (But if the list of 19 SC
candidates contains more than four woman candidates,
selected on own merit, all of them will continue in the
list and there is no question of deleting the excess
woman candidates on the ground that "SC women"
have been selected in excess of the prescribed internal
quota of four.)" (Underline supplied)
14. Admittedly, the University has not adopted the
procedure as has been laid down in the decisions
aforesaid of the Apex Court. Instead, as pointed out by
the petitioner, the University has effected the
reservation in favour of "persons with disabilities"
vertically as is done in the case of reservations in favour
of Scheduled Castes, Scheduled Tribes and Other
Backward Classes, by earmarking roster points 1, 26
and 51 for the said classes and additional slots were
created in those roster points as slots 1A, 26A and 51A
in order to protect the interests of candidates who are
otherwise entitled to be considered for appointment
against vacancies corresponding to the said roster
points. In that process, the roster points fixed in terms
of Annexure to Part II of KS & SSR for Scheduled
Castes, Scheduled Tribes and all Other Backward
Communities have been completely changed. As rightly
pointed out by the learned Senior Counsel for the
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petitioner, it is on account of the said reason that the
vacancy corresponding to roster point 54 became the
vacancy corresponding to roster point 51A earmarked
for "persons with disabilities" and the petitioner, who
would have otherwise been appointed against the
vacancy corresponding to roster point 54, was denied
appointment. In light of the decisions of the Apex Court
referred to in the preceding paragraph, the procedure
adopted by the University as referred to above is faulty
and illegal. In Indra Sawhney, it has been held
categorically by the Apex Court that while effecting the
reservations in favour of category of persons like
"persons with disabilities", it is obligatory for the
employer to ensure that the percentage of reservations
in favour of Scheduled Castes, Scheduled Tribes and
Other Backward Classes remain intact. In the case on
hand, it is seen that on account of the faulty procedure
adopted by the University, candidates belonging to ETB
Communities who were otherwise entitled to 9 posts in
a process of selection for filling up of 63 vacancies,
could get only 8 posts. That apart, the procedure
adopted by the University is violative of Rule 15 of Part
II KS & SSR also, for the same is contrary to the
rotation turns provided for in the Annexure to Part II
KS & SSR. In terms of the said Annexure, the rotation
turns for ETB Communities are 2, 14, 18, 28, 34, 42,
54, 58 and 62 and on account of the introduction of
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additional slots in the roster, the turns of ETB
communities have been changed to 3, 15, 19, 30, 36,
44, 57 and 61. When a percentage of reservation is
fixed in favour of a category by allotting reserve points
in a roster, the same are to be filled from among the
members of that reserved category only. It is so held
by the Apex Court in R.K. Sabharwal v. State of
Punjab [(1995) 2 SCC 745]. The relevant portion of
paragraph 4 of the judgment in the said case reads
thus:
"When a percentage of reservation is fixed in respect
of a particular cadre and the roster indicates the
reserve points, it has to be taken that the posts shown
at the reserve points are to be filled from amongst the
members of reserve categories and the candidates
belonging to the general category are not entitled to be
considered for the reserved posts."
Again, the procedure adopted by the University is violative
of the requirement under Section 34 of the Act also, as, if
the said procedure is adopted, in a rotation of 104
appointments, only 4 persons with disabilities would be
appointed, which may not satisfy the requirement of 4%
reservation.
15. As noticed, the view taken by the learned Single Judge
is that the vacancy corresponding to slot 54 in the 100 Point
Roster has been filled up by the University by appointing a
candidate belonging to ETB Communities and it is on
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account of the said reason, the learned Single Judge chose
to dismiss the writ petition. The petitioner also takes the
stand that slot 54 in the 100 Point Roster has gone to the
vacancy that arose in the Botany Department of the
University on 31.05.2019 against which the fourth
respondent in the writ appeal was appointed and it is on
that premise, the petitioner has impleaded the said person
in the writ appeal as the person who would be affected by
the decision in the writ petition. It is seen that the vacancy
corresponding to slot 54 has become slot 51A on account of
the introduction of additional slots in the roster for effecting
reservation in favour of "persons with disabilities", and no
candidate was appointed by the University against the said
slot since there were no candidates among the "persons
with disabilities" who have applied for selection for
appointment as Assistant Professor in the Department of
Journalism and Mass Communication. The fourth
respondent in the writ appeal is a person appointed against
roster point 57 which was a slot due to an open competition
candidate. The premise on which the learned Single Judge
chose to dismiss the writ petition cannot, therefore, be said
to be correct.
16. We have perused G.O.(P) No.46/2008/SWD dated
19.07.2008 and G.O.(P) No.8/17 dated 06.05.2017, copies
of which were made available to us at the time of hearing,
as also Ext.P7 order issued by the Government. The
procedure prescribed by the Government in the said orders
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are contrary to the decisions of the Apex Court in Indra
Sawhney, Anil Kumar Gupta and Rajesh Kumar Daria
as regards the procedure to be followed while effecting
horizontal reservations, which we are bound to follow in
terms of Article 141 of the Constitution. We have also
perused paragraph 11 of the judgment of this court in
Muhazin P., on which emphasis was made by the learned
Standing Counsel for the University, and we find that the
case aforesaid is a case where the question was whether
the reservation in favour of "persons with disabilities", if
effected in terms of G.O.(P)No.46/2008/SWD dated
19.07.2008, would go against the rules of rotation provided
for in Rules 15 and 17 of Part II KS & SSR, and the said
question was answered in the negative. The said case,
according to us, has nothing to do with the question which
we are called upon to decide in this case.
17. Having found that the procedure adopted by the
University for effecting reservation in favour of "persons
with disabilities" was illegal and faulty, the next aspect to
be considered is as to the relief to which the petitioner is
entitled to. As explained by the Apex Court in Anil Kumar
Gupta and Rajesh Kumar Daria, in the case on hand, the
University should have first filled up slots in the roster due
to open competition candidates and candidates belonging
to Scheduled Castes, Scheduled Tribes and Other Backward
Classes, and should have thereupon examined the number
of candidates belonging to the category "persons with
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disabilities" who could secure the appointments. Insofar as
three persons are entitled to appointment in that process,
the shortfall, if any, should have been made up by
adjusting/accommodating the required number of
candidates belonging to the category "persons with
disabilities" against their respective social reservation
categories. Had this been a case where the requirement
under Section 34 could not have been satisfied by adopting
the said procedure, the University should have deleted the
corresponding number of candidates from the bottom of the
list, instead of introducing additional slots for "persons with
disabilities" in between. Be that as it may, inasmuch as it is
found that slot 54 in the roster due to the second vacancy
that arose in the Department of Journalism and Mass
Communication on 01.04.2019 is one earmarked for
appointment of a candidate belonging to the communities
"Ezhavas, Thiyyas and Billavas", in the absence of any
candidate belonging to the category "persons with
disabilities", the petitioner being the second rank holder and
a candidate belonging to the communities "Ezhavas,
Thiyyas and Billavas", she should have been appointed by
the University against that vacancy. As noted, since no
candidate was appointed by the University against the
second vacancy that arose in the Department of Journalism
and Mass Communication on 01.04.2019, no one would be
affected also by such appointment".
20. Challenging the appeal judgment, the University filed a
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Special Leave Petition before the Apex Court, and it was dismissed
by the order dated 19.05.2023 in Special Leave to Appeal (C)
No.10045 of 2023. Paragraph 14 of the judgment in W.A.No. 1527
of 2021 is extracted by the Apex Court in that order and held that
the additional slots in between for persons with disabilities could
not have been provided with roster point. This Court has rightly
directed that the process adopted by the University in applying the
roster point was faulty and is contrary to the decisions in Indra
Sawhney [(1992) Supp 3 SCC 217], Anil Kumar Gupta
[(1995) 5 SCC 173] and Rajesh Kumar Daria [(2007) 8 SCC
785]. In short, the order of the Apex Court is a considered order
and hence there is merits in the submission of the learned counsel
for the contesting respondents that the judgment in the writ
appeal is merged with the order of the Apex Court in the Special
Leave Petition.
21. Apart from the above, as noticed in the judgments with
regard to the circumstances under which the review jurisdiction
can be exercised, referred to supra, will make it clear that the
contentions raised by the review petitioners at present will not fall
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under any of the grounds stipulated under Order XLVII Rule 1 of
CPC. Though during the course of arguments, the learned Senior
Counsel and the learned counsel for the petitioners relied on
various judgments of the Apex Court to argue against the merits
of the contentions raised by the appellant-writ petitioner in the
writ appeal, we are of the considered opinion that those judgments
are irrelevant while exercising review jurisdiction, since, review
jurisdiction is not meant for reconsideration of the matter already
decided on merits. The attempt of the review petitioners appears
as to use the review jurisdiction as an appeal in disguise, which is
not permissible under law.
Having considered the pleadings and materials on record and
the submissions made at the Bar, we find no ground to review the
judgment in the writ appeal.
In the result, the review petitions stand dismissed.
Sd/-
ANIL K.NARENDRAN, JUDGE
Sd/-
sks MURALEE KRISHNA S., JUDGE
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PETITIONER ANNEXURES
Annexure-A1 TRUE COPY OF THE RELEVANT PORTION OF THE RANK
LIST BEARING NOTIFICATION NO. 157279/AD-REC-
ASST-2/2020/ ADMN. DATED 04.02.2021 ISSUED BY
THE CALICUT UNIVERSITY .
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PETITIONER ANNEXURES
Annexure I A PHOTOCOPY OF THE STANDING DISABILITY
ASSESSMENT BOARD CERTIFICATE ISSUED BY THE
GOVERNMENT TALUK H.Q HOSPITAL, TALIPARAMBA
Annexure II A PHOTOCOPY OF THE STANDING DISABILITY
ASSESSMENT BOARD CERTIFICATE ISSUED BY THE
GENERAL HOSPITAL, THIRUVANANTHAPURAM DATED
15.10.2010
Annexure III A PHOTOCOPY OF THE DISABILITY CERTIFICATE
ISSUED BY THE DEPARTMENT OF EMPOWERMENT OF
PERSONS WITH DISABILITIES, MINISTRY OF SOCIAL
JUSTICE AND EMPOWERMENT, GOVERNMENT OF INDIA
DATED 04.07.2017
