IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 RP.No. 685 of 2008(M) --------------------- AGAINST THE JUDGEMENT IN WPC.29426/2007 Dated 01/04/2008 .................... REVIEW PETITIONER(S): ---------------------- K.C. MOHANAN, AGED 45, S/O. CHERUKANDAN, KOLATE HOUSE, SANTHIPURAM.P.O, SREENARAYANAPURAM VILLAGE, KODUNGALLUR TALUK, THRISSUR DT. BY ADV. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF AGRICULTURE, TRIVANDRUM. 2. DIRECTOR OF AGRICULTURE, VIKAS BHAVAN, TRIVANDRUM. 3. PRINCIPLE AGRICULTURAL OFFICER, THRISSUR. 4. ASSISTANT EXECUTIVE ENGINEER (AGRICULTURE), THRISSUR. GOVERNMENT PLEADER SRI.NANDAKUMAR THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 04/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.GIRI, J ------------------- R.P.685/2008 -------------------- Dated this the 4th day of March, 2009 ORDER When the Review Petition was posted for admission, an order was passed by this Court directing a statement to be filed traversing the averments made in the Review petition. I heard Smt.Vaheeda Babu learned counsel for the review petitioner and Mr.Nandakumar learned senior Government Pleader, elaborately on the Review Petition. 2. Writ petitioner, while working as First Grade Draftsman in the Department of Agriculture, was given time bound higher grade on completion of ten years of service in his post of entry, namely, the Second Grade Overseer, with effect from 27.6.1994. He was then promoted as First Grade Overseer. Pay revision order dated 25.11.1998 inter alia contemplated grant of second time bound higher grade on completion of 18 years of service. Petitioner R.P.685/2008 2 claimed that he should be granted 18 years time bound higher grade in the scale of pay of Rs.6675-10550, which was a scale applicable to Assistant Engineer/Head Draftsman pursuant to the pay revision order dated 25.11.1998. But he was granted fixation only in the scale of pay of Rs.4600-8000. This was challenged in the writ petition. 3. State had taken up a contention that the writ petitioner was not entitled to the fixation of scale of pay applicable to Assistant Engineer/Head Draftsman for two reasons. Firstly, the post of Assistant Engineer/Head Draftsman can be filled up by transfer from the post of Overseer Grade-I only with effect from 20.10.2004. Even if it is assumed that a post which could be filled up by appointment of transfer could be treated as a promotion post, the said post was not prescribed as one in the direct line of promotion to that of Overseer Grade-I prior to Ext.P7 Government Order dated 20.10.2004. At the same time, petitioner had been granted second time bound higher grade with effect from 2002. These contentions were accepted and on the aforementioned R.P.685/2008 3 basis, writ petition was dismissed. 4. Petition for review has been filed urging two grounds. Firstly, other persons working as Overseers Grade-I, in the same Department came to be granted second time bound higher grade and fixation of pay in the scale applicable to Assistant Engineer/Head Draftsman. Secondly, such benefit was granted to similarly situated persons as directed in Annexure-A judgment and the said judgment had not been appealed against by the State. 5. Learned Government Pleader contended that apart from the fact that the grounds of review are otherwise untenable, same do not offer sufficient justification for reviewing the judgment since the judgment does not suffer from any error apparent on the face of the records. 6. Learned counsel for the petitioner places reliance on the judgment reported in Maharaj Krishnan Bhatt and Another v. State of Jammu and Kashmir and R.P.685/2008 4 Another (2008 (9) SCC 24). Per contra the learned Government Pleader contended that even if the benefit had been irregularly extended to any other person, negative equality cannot be claimed by the petitioner and it has been so held in Union of India and Another v. International Trading Co. and Another (2003 (5) SCC 437). 7. I must remind myself that the power of review cannot be exercised unless there is an error apparent on the face of record. Grounds which are now urged by the petitioner may not be sufficient to review the impugned judgment. 8. Apart from the same, I am of the view that even otherwise the judgment does not warrant a review. Firstly, learned counsel for the petitioner placed strong reliance on Annexure-A judgment. That was a case where, consequent upon the grant of second time bound higher grade, as per the pay revision order, this Court directed that the petitioner therein be granted fixation of pay in the scale applicable to the Assistant R.P.685/2008 5 Engineer/Head Draftsman. But what is crucial and what has been rightly pointed out in that regard by the learned Government Pleader is that this Court, while delivering Annexure-A judgment, had taken note of the fact that the Government had not framed the special rules prescribing qualification and method of appointment for the post of Head Draftsman. No doubt, this was the position obtaining on 23.2.2004, the date of Annexure-A judgment. But as has been noted in the judgment sought to be reviewed, the special rules relating to the post of Assistant Engineer/Head Draftsman came to be issued vide Ext.P7 order dated 20.10.2004 inter alia prescribing the method of appointment to the said post. 9. Secondly, even if it is assumed, as the petitioner urges that certain other persons in the same Department allegedly similarly situated, were granted fixation of pay in the scale applicable to Assistant Engineer/Head Draftsman, that by itself would not offer a justification for this Court to issue a writ to extend similar benefit to the petitioner, going by the concept of negative R.P.685/2008 6 equality as laid down by the Supreme Court in Union of India and Another v. International Trading Co. and Another (2003 (5) SCC 437). 10. The crucial question as to whether the stand taken by the Government was erroneous in the light of the pay revision order dated 25.11.1998, was considered along with the other contentions urged by the petitioners. Assuming that the petitioner is aggrieved by the judgment, the remedy lies by way of an appeal and not in a review as such. 11. For all these reasons, I am not persuaded to review the judgment. But it is open to the petitioner to approach the Government, for the same benefit as is alleged to have been given to all other persons in the same Department and if a representation is filed in this regard, seeking to invoke the power of the Government which it no doubt has, for getting a similar benefit, Government shall take a decision thereon, within three months from the date of receipt of a copy of this judgment along with the representation. In doing so, R.P.685/2008 7 Government need not consider itself fettered by my judgment dated 1.4.2008 or the findings in this judgment. Subject to the above, Review petition is disposed of. V.GIRI, Judge mrcs