IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 RP.No. 1328 of 2008(H) ------------------------------- AGAINST THE JUDGEMENT IN OP.3016/2002 .................... REVIEW PETITIONERS/RESPONDENTS 1 TO 3: ---------------------------------------------------------------- 1. THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION (G) DEPARTMENT, GOVT. OF KERALA, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. 3. THE REGIONAL DIRECTOR OF TECHNICAL EDUCATION, KOTHAMANGALAM. BY GOVERNMENT PLEADER RESPONDENTS/PETITIONERS & RESPONDENTS 4 & 5: ---------------------------------------------------------------------------- 1. SRI.MATHEW BENADICT K.A., PROFESSOR, MAR ATHANACEIOUS COLLEGE OF ENGINEERING, KOTHAMANGALAM. 2. SRI.K.U.ABRAHAM, PROFESSOR MACE, KOTHAMANGALAM. 3. SRI.RAMAN NAMPOOTHIRI.N., PROFESSOR MACE, KOTHAMANGALAM. 4. SRI.JOSEPH KUNJU PAUL,.C., ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 5. SRI.ROY N.MATHEWS,ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 6. SRI.M.A.ABRAHAM, ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 7. SRI.REJI MATHEW, ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 8. SRI.DEVI PRASAD VARMA P.R., ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 9. SRI.BINU C.YOLDOSE, ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 10. SRI.KEMTHOSE P.PAUL, ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 11. DR.C.J.JOSEPH,PROFESSOR MACE, KOTHAMANGALAM. 12. SRI.M.M.POULOSE, ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 13. SMT.B.GEETHA, ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 14. SRI.PAUL ANTONY, PROFESSOR MACE, KOTHAMANGALAM. 15. SRI.M.L.PAUL, PROFESSOR MACE, KOTHAMANGALAM. 16. SRI.K.RADHAKRISHNAN, ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 17. SMT.SALICE PETER, ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 18. SMT.SHEELA JOSEPH, ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 19. SMT.ELESABETH SEBASTIAN, ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 20. SRI.RAJAN P.THOMAS, ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 21. SMT.ALICEKUTTY PHILIP, PROFESSOR MACE, KOTHAMANGALAM. 22. SRI.PAULSON JOHN, ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 23. SMT.LEENA THOMAS, ASSISTANT PROFESSOR MACE, KOTHAMANGALAM. 24. MAHATMA GANDHI UNIVERSITY, KOTTAYAM REP. BY ITS REGISTRAR. 25. M.A.COLLEGE OF ENGINEERING, KOTHAMANGALAM, REP. BY ITS SECRETARY AND CHAIRMAN. BY SRI.T.A.SHAJI S.C.MGU(NO MEMO) THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 08/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ----------------------------------- R.P.No.1328 OF 2008 IN O.P.No.3016 OF 2002 ------------------------------------ Dated this the 8th day of November, 2011 O R D E R Following the earlier order, the 24th respondent M.G.University has filed an affidavit though the Registrar, stating, among other things, that the appointment of the writ petitioners were not approved by the University. Recording this, the only course open is to re-open the judgment sought to be reviewed. Hence, this review petition is allowed vacating the judgment in O.P.3016/02, without expressing anything on merits. The O.P. will be listed for hearing. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.8/11. RP.1328/08 2 THOTTATHIL B.RADHAKRISHNAN, J. ----------------------------------- R.P.No.1328 OF 2008 IN O.P.No.3016 OF 2002 ------------------------------------ Dated this the 1st day of July, 2011 O R D E R 1.This is an application filed by the State seeking review of judgment. 2.Twenty Three teachers of an aided technical college sought relief when they faced the situation of being deprived of the benefit of approval of their promotions which the management had given them. 3. The writ petition was filed in 2002. The Government, who is ultimately liable to pay the amounts towards pay and allowances, had filed a counter affidavit contesting the alleged entitlement of the writ petitioners. The matter was taken up for final hearing in 2007. The Mahatma Gandhi RP.1328/08 3 University, which is the competent authority to approve the appointments in terms of the University Laws stood as a mute spectator at the hearing of the case. It never brought to the notice of the court that it had not issued any approval orders for the appointments. The law is well settled that it is for the University to approve the appointment of a college teacher. The judgment sought to be reviewed was issued, giving the petitioners the benefit claimed in the writ petition, on the premise that it is not in dispute that the University had approved the appointments. 4.With the passage of time, faced with the financial obligations arising out of the judgment, the Government have filed this review. Ultimately, it was noted that in the review petition, the Government relied on a communication of the University, issued after the judgment, to the effect that the proposal for approval of promotions mentioned in the original petition is pending with the University for approval. The cat was apparently peeping out of the bag. Yet the RP.1328/08 4 University did not disclose the entire relevant facts to this Court. Remember, the teachers are here from 2002. Therefore, this Court had to issue an order on 27.1.2010 requiring the University to state on the question of approval of promotions. It is only thereafter that the University has now come up with the affidavit to the effect that the promotions have not been approved by the University since, according to it, the question of approval would arise only after the Government fixes the ratio for Professors, Assistant Professors, Lecturers etc. as per the AICTE norms. 5.Having thus seen that the judgment sought to be reviewed was issued on the erroneous premise that the University had granted approval to the promotions, sufficient grounds are made out to review the judgment under the power of review traceable to Article 226 of the Constitution of India, having regard to the judgment in Secretary, Ministry of Health & F.W.D. v. Aswathy Elsa Mathew [2008 (2) KLT 670], relied on by the learned counsel for the teachers. It also RP.1328/08 5 needs to be noticed that he relies on that judgment criticizing the Government of having wrongly invoked the power of review referable to the Code of Civil Procedure to file this review petition. Be that as it may, I am inclined to think that the life span and energy of teachers are to be spent in colleges rather than forcing them to be litigating in courts. In the unfortunate event of a litigation, they should be given the verdict. But, when the University did not disclose to the court the fact that the appointments were not approved, the teachers had suffered. May be this is a case where the University could be taken to have not acted diligently in functioning as a statutory body as is expected from it. The situation may visit them with an order of costs. There are 23 teachers. Even if each of them is to be paid at least Rs.5,000/- towards costs, ultimately, that amount will also have to be paid off from the public funds. 6.In the very peculiar facts and circumstances as noted above, the review petitioner is directed to file an affidavit within a RP.1328/08 6 period of 45 days from now, without fail, as to the final action on the matters which it is expected to do, as stated in the affidavit filed by the 4th respondent M.G. University and clear the smug, paving way for the University taking up the matter for approval so that the teachers can have a decision without delay. The review petitioner is directed to file an affidavit of compliance of this order without fail on or before 18.8.2011 with copy to the counsel for the University, who, in turn, will ensure that any action by the University on the basis of Government order also follows within a further period of one month. The affidavit of the Registrar of the University in that regard shall be on board without fail on or before 10.10.2011. Post for further consideration on 14.10.2011. H/o. copy to all sides. THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.7/7.