IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 RP.No. 26 of 2008() ------------------- AGAINST THE JUDGEMENT/ORDER IN WA.39/2007 Dated 10/08/2007 .................... REVIEW PETITIONER(S): REVIEW PETITIONER/RESPONDENT/PETITIONER: -------------------------------------------------------------- M.V. AJAYAKUMAR, UPPER DIVISION CLERK, ELANJI GRAMA PANCHAYAT, ERNAKULAM. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN RESPONDENT(S): APPELLANTS/RESPONDENTS: -------------------------------------- 1. THE DIRECTOR OF PANCHAYAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF MUNICIPAL ADMINISTRATION THIRUVANANTHAPURAM. THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 07/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & ANTONY DOMINIC,JJ. ------------------------------------ R.P.No.26/08 in W.A. No.39/2007 ------------------------------------- Dated this the 7th day of October, 2009. O R D E R Antony Dominic, J The review petitioner filed O.P.No.9371/02 claiming seniority in the cadre of Upper Division Clerk, as per Ext.P1 order. The Original Petition was disposed of by judgment dated 21st June, 2006. The relevant part of which reads as under. “In view of the admitted factual position, the petitioner enjoyed the benefit of provisional promotion though initially granted in the Municipal Common Service, but being permitted to continue as Upper Division Clerk in the Panchayt Common Service prior to 20.10.1993, he is entitled to retain that seniority from the date of Ext.P1 order. Though the entitlement of the petitioner could have been considered in favour of the petitioner on different angles also, in view of the factual position emerging as above, I do not think it necessary to consider those aspects though the learned counsel appearing for the petitioner invited my reference to the decision of this Court in Shaji V. State of Kerala (1999(1)KLT 774) and also to Rule 8 of the General Rules. (emphasis supplied) Accordingly, this writ petition is disposed of quashing Ext.P4 and declaring RP.No.26/08 2 that the petitioner shall be entitled to count the seniority as Upper Division Clerk in the Panchayat Common Service from 25.3.2991, the date of Ext.P1 order of promotion of the petitioner as Upper Division Clerk.” 2. A reading of the above portion of the judgment shows that, it was only on account of the admitted factual position as noticed above, without considering the other aspects favourable to the petitioner, as noticed therein, that the learned single Judge allowed the Original Petition. Writ appeal No.39/07 filed by the respondents against the judgment of the learned single Judge was allowed setting aside the judgment of the learned single Judge. Since the judgment was entirely based on one aspect alone, the other contentions which were available to be urged by the petitioner, but not dealt with by the learned single Judge, were not considered in the judgment in the writ appeal also. It is in the aforesaid circumstances, complaining that the petitioner was deprived of the opportunity to urge contentions, which were available and pleaded in the Original Petition, that this review petition is filed. 3. On facts we are satisfied that in the aforesaid background, contentions, which were accepted by the learned single Judge as favourable, could not be urged by the petitioner and that as a RP.No.26/08 3 result of which injustice has been caused to him. We are also satisfied that, having regard to the findings in the judgment in the O.P, if the other contentions available to the petitioner were considered, the conclusion in the writ appeal judgment, could have been different. 4. In these circumstances, we are satisfied that the judgment is vitiated for non consideration of the factual contentions and the judgments which are relied on by him. For that reason the review is allowed and the judgment in the Writ Appeal is recalled . Registry shall post the Writ Appeal for hearing. (PIUS C. KURIAKOSE) JUDGE (ANTONY DOMINIC) JUDGE vi/ RP.No.26/08 4