IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA 1931 RP.No. 933 of 2009() -------------------- AGAINST THE JUDGEMENT IN WA.454/2005 Dated 28/05/2009 REVIEW PETITIONER(S): APPELLANT NO.3 ------------------------------------ VENUGOPAL SHARMA G., S/O.GOPALAKRISHNAN POTTI,SUB ENGINEER, KUNDARA ELECTRICAL SECTION,KOLLAM DISTRICT. BY ADVS. SRI.V.SETHUNATH SRI.M.AYYOOBUKHAN RESPONDENT(S): RESPONDENTS/APPELLANT NOS.1 AND 2 ------------------------------------------------ 1. ANIL KUMAR K.K., METER READER,ELECTRICAL SECTION, KADALUNDI,KOZHIKODE. 2. JAYARAJAN V., METER READER,ELECTRICAL SECTION, BEACH,KOZHIKODE. 3. ASHRAF T.K., METER READER,ELECTRICAL SECTION, BEACH,KOZHIKODE. 4. KERALA STATE ELECTRICITY BOARD, REP.BY ITS SECRETARY,VYDYUTHI BHAVANAM, PATTOM,THIRUVANANTHAPURAM. 5. THE CHIEF ENGINEER,(HRM), KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVANAM,PATTOM, THIRUVANANTHAPURAM. 6. THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE,GANDHI ROAD,KOZHIKODE. 7. UDAYAKUMAR G., OVERSEER (ELECTRICAL),ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, NEDUMANGAD,THIRUVANANTHAPURAM. 8. BABU P., OVERSEER (ELECTRICAL),ELECTRICAL SECTION, WEST HILL,KOZHIKODE. 9. GEORGEKUTTY T.T., METER READER,RANNI SOUTH, ELECTRICAL SECTION,RANNI. 10. RAM MOHAN M.R., METER READER,RANNI SOUTH, ELECTRICAL SECTION. 11. A.T.THAHAKUNJU, METER READER,ELECTRICAL SECTION, KADAMBANADU,PATHANAMTHITTA. 12. A.JUSTIN FERNANDEZ, METER READER,ELECTRICAL SECTION, KADAMBANADU,PATHANAMTHITTA. 13. THULASIDHARAN V., METER READER,ELECTRICAL SECTION, VADASSERIKKARA. 14. C.RAJAN PILLAI, METER READER,ELECTRICAL SECTION, THEVELAKKARA,KOLLAM. 15. JOHNSON FERNANDEZ L.,S/O.LEONS FERNANDEZ OVERSEER (ELECTRICAL),ELECTRICAL SECTION, KILIKOLLOOR.NOW WORKING AS OVERSEER (ELECTRICAL),TCMS ELECTRICAL CIRCLE, KOLLAM,RESIDING AT MOLLY VILASAM, KERALAPURAM,VELLIMON P.O. 16. GEORGE THOMAS,S/O.K.G.THOMAS, OVERSEER (ELECTRICAL),VELLIVILA PUTHEN VEEDU, KULAKKADA EAST P.O.,KOLLAM DISTRICT. ADDL.R17.ZAKKEER HUSSAIN K.N. SUB ENGINEER, ELECTRICAL SECTION, CHENGAMAND SE, KOTTARAKKAR. ADD.R18.B. MOHANAN, SUB ENGINEER, ELECTRICAL SECTION, VITHURA. (ADDL. RESPOPNDENTS 17 AND 18 IMPLEADED AS PER ORDER DATED 19.1.2010 IN I.A. NO. 683 OF 2009) ADV. SRI.B.S.SIVAJI FOR R7,15,16 SRI.ELVIN PETER P.J. FOR R1 &3 SRI.G.SASIDHARAN CHEMPAZHANTHIYIL FOR ADDL.R17 & 18 SRI.S.VISHNU FOR ADDL.R17 & 18 ADV. SRI S. RAMESH BABU -R8 ADV. SRI. ASHOK M. CHERIAN -R4 TO R6 THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 19/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- R.P.NO. 933 OF 2009 IN W.A. NO. 454 OF 2005 --------------------------------------------- Dated this the 19th day of January, 2010 O R D E R Balakrishnan Nair, J. The third appellant is the review petitioner. He seeks review of the judgment on the following grounds: i. The promotions impugned in the Writ Petition were ordered pursuant to the direction of this Court in an earlier judgment. That judgment has become final and operated as res judicata against the Kerala State Electricity Board. The Board failed to bring the said fact to the notice of this Court while the appeal was heard. So, the judgment is liable to be reviewed. ii. The amendment to Rule 28 of the Kerala State and Subordinate Services Rules, which provides that when there are more than one category of posts in the feeder category, the persons working in the post with higher grade of pay should be preferred first, before going for persons working in the lower grade, R.P. NO. 933/2009 in W.A. NO.454/2005 2 was not adopted by the Board and, therefore, it should not have been applied by this Court while rendering the judgment under review. iii.This Court failed to consider the sit back theory. 2. The Writ Appeal was heard and the judgment was dictated in open court. The point concerning res judicata was never raised, either by the review petitioner or by the Board. So, the judgment under review cannot be faulted for not considering a point that was neither raised nor argued. Regarding the second contention that the Board has not adopted the amendment to Rule 28 of the Kerala State and Subordinate Services Rules, we are of the view that the said point is also not available for review of the judgment. In the judgment under review we held that even assuming that the amendment is not adopted by the Board, the principles underlying the rule will apply. The said view was taken by us consciously following an earlier decision and, therefore, the remedy available is not a review petition, but an appeal. The third point, regarding sit back theory, is also not available as a ground for review. It should have been raised as an issue while the matter was heard and decided. In view of the above position, we find that the grounds raised by R.P. NO. 933/2009 in W.A. NO.454/2005 3 the review petitioner may be grounds available for appeal, but they are not grounds for review of the judgment. Accordingly, the Review Petition is dismissed. (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ R.P. NO. 933/2009 in W.A. NO.454/2005 4 K.BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.A.NO.933/2009 O R D E R 19th January, 2010