IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 RP.No. 14 of 2010(R) ------------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.33337/2007 Dated 03/12/2009 .................... REVIEW PETITIONER(S): NOT PARTY IN THE W.P. ----------------------------------------------------------------------- INDU T.K., H.S.S.T(ZOOLOGY), ABDULLA KUNJU MEMORIAL HIGHER SECONDARY SCHOOL MYLAPORE, KOLLAM. BY ADV. SRI.ELVIN PETER P.J. RESPONDENT(S): PETITIONER & RESPONDENTS IN THE W.P. ---------------------------------------------------------------------------------------- 1. SHARAFUDEEN.M., HSST JR. IN ARABIC, AKMHS SCHOOL, MYLAPORE, UMAYALLUR, KOLLAM. 2. DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 3 MANAGER, AKMHS SCHOOL, MYLAPORE, UMAYALLUR, KOLLAM. 4 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. R1 BY ADV. SMT.P.V.ASHA. R3 BY ADV. SMT.S.KARTHIKA R2 & R4 BY GOVERNMENT PLEADER SMT.N.SUDHA DEVI THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 28/09/2010, THE COURT ON 07/10/2010 PASSED THE FOLLOWING: tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - R.P.No.14/2010 in W.P.(C) No. 33337 of 2007-R - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of October, 2010. O R D E R This review petition is filed by the petitioner who was not a party to the writ petition. The main allegation raised in the review petition is that the direction by this Court to recognise the right of the writ petitioner as a member of the service for by transfer appointment under 25% quota, will affect the seniority of the review petitioner. It is further pointed out that the petitioner has no grievance against the findings rendered in para 10 of the judgment to treat the writ petitioner as an appointee under 75% quota by direct recruitment. 2. The writ petitioner has filed a counter affidavit opposing the prayers of the review petitioner. 3. Learned counsel for the review petitioner submitted that the finding rendered by this Court that the first respondent herein can be treated as a by transfer appointee under 25% quota, is not correct in the light of the decision of a Division Bench of this Court in K. Krishnankutty & others v. State of Kerala & others (1998 (2) KLJ 301), which will show that the RP 14/2010 2 by transfer appointment in 25% quota from High School Assistants is from one service to another service and only a person who has completed his probation is entitled to be considered for appointment by transfer to another service. Herein, the first respondent has not completed the period of probation and his probation has not been declared. Hence, he could have been treated only under 75% quota. Reliance is also placed on another decision of a Division Bench of this Court in Ramachandran v. Food Corporation of India (1989 (2) KLT 112) to contend that her only remedy is to file a review petition, as she was not a party to the writ petition. 4. Learned counsel appearing for the first respondent, by relying upon the decision of the Apex Court in Haridas Das v. Usha Rani Banik (Smt) and others {(2006) 4 SCC 78}, pointed out that no sufficient grounds have been made out to review the judgment, as there is no error apparent on the face of the judgment. It is pointed out that if elaborate argument is required to thrash out the points raised in the review petition, the remedy of the review petitioner if at all, is only to file an appeal. 5. Herein, the main contention raised by the review petitioner is that the writ petitioner/first respondent is not entitled to be treated as one coming under 25% quota. In the judgment, this Court considered the claim of the RP 14/2010 3 first respondent in the light of the dictum laid down by this Court in Arshad Beegum v. Najeeb (2009 (4) KLT 389) and Geetha v. Geo Thomas (2009 (4) KLT 514). The attempt of the review petitioner is to distinguish the dictum laid down in those cases. This Court considered the various aspects and found that the principles laid down therein will apply. Accordingly, it was held that the right of the writ petitioner as a member of the service and as a leave substitute for by transfer appointment under 25% quota cannot be denied merely on the ground that the writ petitioner has not been appointed in a regular vacancy. The writ petitioner was appointed in a vacancy which arose consequent on the sanction of leave without allowance to the regular teacher for a period of five years. His appointment as H.S.A. was approved from 1.2.1999 to 31.3.2000 and he was reappointed from the date of reopening, on 5.6.2000 for the period up to 17.10.2003, which was also approbved. He was appointed as H.S.S.T. on 20.8.2000, after accepting his claim under the 25% quota. Later by Ext.P6 it was directed to treat him as an open market candidate and by Ext.P9 the benefit granted to him was cancelled which was under challenge in the writ petition along with Ext.P11. Therefore, it is not a case where this Court was called upon to decide the seniority of the writ petitioner vis-a-vis the review petitioner RP 14/2010 4 herein. 6. As evident from the decision of the Apex Court in Haridas Das's case {(2006) 4 SCC 78}, a mere erroneous decision in the eye of the review petitioner may not be a ground to review a judgment. The error should be one apparent on the face of the judgment. The points raised herein therefore cannot be said to be as errors apparent on the face of the judgment itself. Even though learned counsel for the review petitioner relied upon the judgment in O.P.No.5002/1988 and the decision reported in Krishnankutty's case (1998 (2) KLJ 301), those aspects can be considered only if a re-hearing itself is ordered by this Court. Even though the review petitioner was not a party to the writ petition, herein, he has got a remedy to file an appeal after seeking leave. I am not satisfied therefore that there is an error apparent on the face of the judgment. Therefore, the review petition is dismissed. (T.R. Ramachandran Nair, Judge.) kav/