IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 7TH JULY 2008 / 16TH ASHADHA 1930 RP.No. 129 of 2008(M) --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.20285/2006 Dated 05/10/2007 .................... REVIEW PETITIONERS/RESPONDENTS: --------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PRINIPAL SECRETARY TO GOVERMENT, HIGHER EDUCATION EPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 1. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM . BY GOVERNMENT PLEADER SRI. I.V. PRAMOD RESPONDENT:PETITIONER & RESPONDENT NO.3. ---------------------------------------------------------------------------- 1. P.N.RAMACHANDRAN NAIR, HEAD ACCOUNTANT (RETD.), SREE SANKARA COLLEGE, KALADY, RESIDING AT PULIYAMPILLI HOUSE, PINAVOOR, KALADY - 683 574. 2. THE MANAGER, SREE SANKARA COLLEGE, KALADY. BY ADV. SRI.T.P.DEYANANTHAN SRI.K.ANAND (A.201) - R2 SMT.LATHA KRISHNAN – R2 THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 07/07/2008 ALONG WITH WPC.NO.20285 OF 2006, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss S. SIRI JAGAN, J. ----------------------------------------- W.P.(C)No.20285 & R.P.129 OF 2008 ------------------------------------------- Dated this the 7th day of July, 2008 JUDGMENT The State has come up with this review petition contending that there is an apparent mistake on the face of the record in the judgment. By judgment dated 5.10.07 in the writ petition I directed the respondents to promote the petitioner as Junior Superintendent with effect from 1.2.02 and as Administrative Assistant with effect from 1.4.02, on the basis of the averment in paragraph 3 of the counter affidavit, which is extracted in the judgment, as per which I assumed that during the relevant period promotion as Junior Superintendent with effect from 1.2.02 and as Administrative Assistant with effect from 1.4.02 fell due to the petitioner. 2. The learned Government Pleader would point out that this happened only because of bad paraphrasing in the counter affidavit. He particularly points out the statement, wherein it is stated that a higher power committee had been appointed by the Government to study the workload and to report the staff pattern W.P.(c)No.20285/06 & R.P.No.129/08 2 of the private colleges which would go to show that the next sentence in the counter affidavit which was relied upon by me was subject to such assessment of work load and staff pattern which could not be pointed out at the time of the judgment. The learned Government Pleader would further point out that I had relied on the decision in Ext.P17 judgment to hold in favour of the petitioner. He reads out the following sentences in Ext.P17 judgment. “............. So, when the petitioners were promoted, there was no statutory ban against appointment. Therefore, the circular issued by the Director of Collegiate Education, affecting the rights of the petitioners for promotion or the managements to make appointments, cannot be enforced. But, once the Pre-degree course is abolished, there will be considerable reduction in the students strength. So, even if the pre-revised norms are followed, the staff strength have to be fixed notionally, having regard to the students strength available as per the rolls, when the petitioners were promoted in 2003. But, since the petitioners were promoted to the posts as per the pre-revised staff pattern, their promotions are liable to be approved, if there are vacancies as per the strength of students available in 2003. It is declared so”. His case is that as is clear from the above passage, the eligibility for promotion has to be decided on the basis of staff strength decided on the basis of student strength. According to him, as is clear from Anneuxre-P1(d) produced along with W.P.(c)No.20285/06 & R.P.No.129/08 3 the additional affidavit dated 4.3.08, the post of Administrative Assistant would be available only in Colleges with 2500 or more students and the post of two additional Junior Superintendents would be available only in Colleges with a student strength 2500 or above. He points out that as is evident from Annexures P1 (a), P1 (b) and P1(c), the total number of students during the relevant time in the particular College where the petitioner was working was far less than 2500. That being so the posts of Junior Superintendent and Administrative Assistant were not available in the College as on 1.2.02 and 1.4.02. That being so the petitioner could not have been promoted to those posts since those posts were non-existent in College for want of sufficient student strength is the contention raised. However, the learned Government Pleader would submit that the petitioner could have been given promotion to the post of Senior Superintendent, which can be considered. 3. The review petition itself is opposed by the petitioner in the writ petition. According to him, what the State wants is a re-hearing of the writ petition which cannot be allowed in a review petition. He further submits that after the W.P.(c)No.20285/06 & R.P.No.129/08 4 revised staff pattern came into force, the student strength need only be 1200 and above. But he admits that the revised staff pattern came into force only with effect from 17.9.04. 4. I have considered the rival contentions in detail. As is evident, the relevant dates are 1.2.02 and 1.4.02. The petitioner in the writ petition could not satisfy me that Annexure-P1(d) was not the staff pattern available at the relevant period. He himself admits that the revised staff pattern came into force only from 17.9.04. Going by Annexures P1 to P1(d) the posts of Junior Superintendent and Administrative Assistant were not available for promoting the petitioner as on 1.2.02 and 1.4.02, the petitioner could not have been given promotion as directed in the judgment. Therefore I am satisfied that there is an apparent mistake on the face of the records in my judgment dated 5.10.2007. However, in view of the fact that the State itself admits that the petitioner could have been considered for promotion to the post of Senior Superintendent with effect from 1.4.2002, the petitioner shall be given promotion as Senior Superintendent with effect from 1.4.02 notionally instead of Junior Superintendent and Administrative Assistant as directed in the W.P.(c)No.20285/06 & R.P.No.129/08 5 judgment. However, this shall only be on notional basis without monetary benefits till his retirement on 3.8.2003. He would, however, be entitled to refixation of pay from 1.4.2002 as well as retirement benefits on that basis. The 3rd respondent shall pass orders to put into effect the above directions within one month from the date of receipt of a copy of this judgment. The arrears of pensionary benefits arising therefrom shall be paid within one month from the date of passing orders as above. The judgment would stand modified as above. The Review Petition and the writ petition are thus disposed of. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.20285/06 & R.P.No.129/08 6