IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 20TH DECEMBER 2010 / 29TH AGRAHAYANA 1932 RP.No. 1113 of 2010 ---------------------- AGAINST THE JUDGEMENT IN WA.1725/2010 Dated 08/10/2010 .................... REVIEW PETITIONERS/APPELLANTS: ---------------------------------------- 1. STATE OF KERALA REP.BY ITS CHIEF SECRETARY,GOVT.SECRETARIAT,THIRUVANANTHAPURAM 2. THE PRINCIPAL SECRETARY,HIGHER EDUCATION DEPARTMENT,GOVERNMENT OF KERALA, SECRETARIAT,THIRUVANANTHAPURAM 3. THE SECRETARY,HEALTH AND FAMILY WELFARE DEPARTMENT,SECRETARIAT,THIRUVANANTHAPURAM 4. THE SECRETARY TO GOVERNMENT, SC/ST(A)DEPARTMENT,SECRETARIAT,THIRUVANANTHAPURAM 5. THE DIRECTOR OF MEDICAL EDUCATION, GOVERNMENT OF KERALA,THIRUVANANTHAPURAM 6. THE COMMISSIONER FOR ENTRANCE EXAMINATIONS, GOVERNMENT OF KERALA,SHANTI NAGAR, THIRUVANANTHAPURAM BY SPECIAL GOVERNMENT PLEADER SRI.P.SANTOSH KUMAR RESPONDENTS/RESPONDNTS: ---------------------------------- 1. AMITHA T.A. ,C.K.HOUSE NO.58, VRINDAVAN GARDEN, PATTOM PO, THIRUVANANTHAPURAM-695 004. 2. THE MEDICAL COUNCIL OF INDIA, REPRESENTED BY ITS SECRETARY,POCKET 14, SECTOR 8, DWARAKA PHASE,NEW DELHI-110 077. R1 BY SRI.K.R.RADHAKRISHNAN NAIR R2 BY ADV. SRI.ALEXANDER THOMAS, SC, MCI THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 20/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: J.Chelameswar, C.J. & P.R.Ramachandra Menon, J. ------------------------------------------ R.P. No. 1113 of 2010 in W.A.No.1725 of 2010 ------------------------------------------ Dated this the 20th day of December, 2010 ORDER J.Chelameswar, C.J. The present review petition is filed by the appellants in the writ appeal, i.e. the State and its officers, audaciously affirming that there is an error apparent on the face of the record in the judgment dated 8th October, 2010. 2. The facts are as follows: The first respondent herein was the petitioner in W.P.(C) No.23084 of 2010. The said writ petition was filed challenging a Government Order dated 9.6.2010 filed as Ext.P7 in the writ petition. By the said impugned order the Commissioner for Entrance Examinations was directed to conduct a special entrance examination exclusively for the Scheduled Tribes students for admission to MBBS/BDS courses. At the stage of admission of the writ petition, a learned Judge of this Court passed an interim order staying the operation of the above mentioned impugned order. The State filed an application to vacate the interim order granted earlier. But the learned Judge of this Court, for the reasons recorded in the order, declined to vacate the interim order passed earlier. In view of the said order dated 16.9.2010, the State issued another executive order in G.O.(Rt) No.3711/10H&FWD dated 18.9.2010. R.P. No.1113 of 2010 - 2 - 3. However, aggrieved by the interim order dated 16.9.2010 the State preferred W.A.No.1725 of 2010. When the writ appeal came up for consideration, the learned counsel for the writ petitioner/the first respondent herein submitted that the writ petition is not pressed as the writ petitioner has secured admission to M.B.B.S. course in a medical college in the meanwhile. Therefore, by the judgment dated 8th October, 2010 the writ petition was dismissed as not pressed and consequentially the writ appeal was closed as nothing would survive for consideration upon the dismissal of the writ petition. 4. The instant review petition is filed alleging that there is an error apparent on the face of the record in the judgment dated 8th October, 2010. According to the review petitioners this Court ought to have made an express declaration that the interim orders granted during the pendency of the writ petition (which eventually came to be dismissed as not pressed) lapsed on such dismissal. It is further submitted that this Court should also have gone further to declare that the proceedings issued by the State pursuant to the interim orders, i.e. G.O.(Rt) No.3711/10H&FWD dated 18.9.2010 referred to above also lapsed pursuant to the dismissal of the writ petition. 5. In support of the submission, the learned Government Pleader relied upon a judgment of the Supreme Court reported in Kalabharathi Advertising v. Hemant Vimalnath Narichania and others R.P. No.1113 of 2010 - 3 - [(2010) 9 SCC 437]. At paragraph 24 of the said judgment the Supreme Court held as follows: “It is not permissible for a party to file a writ petition, obtaining certain orders during the pendency of the petition and withdraw the same without getting proper adjudication of the issue involved therein and insist that the benefits of the interim orders or consequential orders passed in pursuance of the interim order passed by the writ court would continue. The benefit of the interim relief automatically gets withdrawn/neutralised on withdrawal of the said petition. In such a case concept of restitution becomes applicable otherwise the party would continue to get benefit of the interim order even after losing the case in the court. The court should also pass order expressly neutralising the effect of all consequential orders passed in pursuance of the interim order passed by the court. Such express directions may be necessary to check the rising trend among the litigants to secure the relief as an interim measure and then avoid adjudication on merits.” 6. Learned Government Pleader relying on the above decision argued that this Court ought to have passed an order expressly neutralising the effect of the above mentioned G.O.(Rt) No.3711/10H&FWD dated 18.9.2010 and the failure to make such an express declaration tantamounts to an error apparent on the face of records. 7. In response to a specific query whether it was brought to the notice of this Court at the time when the judgment dated 8th October, 2010 was passed regarding the existence of a consequential R.P. No.1113 of 2010 - 4 - government order in G.O.(Rt) No.3711/10H&FWD dated 18.9.2010, the answer was that it was not expressly brought to the notice of this Court though it was pleaded in the grounds of appeal. The result is obvious. 8. Apart from that, it is too well settled that any interim order passed during the pendency of a legal proceeding would merge with the final order. If certain executive action was taken by the State pursuant to an interim order passed by this Court during the pendency of the writ petition, nothing in law prevents the State from rescinding such executive orders after the interim orders lapsed with the dismissal of the writ petition. In the circumstances, we do not see any error apparent on the face of the record. The review petition is dismissed. J.Chelameswar, Chief Justice P.R.Ramachandra Menon, Judge vns