(2012) 237 KLR 152 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN FRIDAY, THE 24TH DAY OF FEBRUARY 2012/5TH PHALGUNA 1933 WP(C).No. 34472 of 2011 (S) --------------------------------------- PETITIONER: ------------------- BASIL ATTIPETTY @ BASIL A.G, ADVOCATE, HIGH COURT OF KERALA, AGED 54, S/O.GEORGE, ATTIPETTY HOUSE, COCHIN. BY ADVS.SRI.BENOY THOMAS, SRI.PAULSON THOMAS, DR.GEORGE ABRAHAM. RESPONDENTS: ------------------------ 1. UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES & PENSIONS, CENTRAL SECRETARIAT, NORTH BLOCK, NEW DELHI, PIN - 110 001. 2. SECRETARY, MINISTRY OF LAW & JUSTICE, GOVT. OF INDIA, CENTRAL SECRETARIAT, NORTH BLOCK, NEW DELHI, PIN - 110 001. 3. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, PERSONNEL & ADMINISTRATIVE REFORMS DEPARTMENT, THIRUVANANTHAPURAM - 695 001. 4. THE REGISTRAR (GENERAL), HIGH COURT OF KERALA, HIGH COURT BUILDING, KOCHI-31. W.P.(C).NO.34472/2011-S: 5. SRI.SRUNGARAM PRADEEPKUMAR NAIDU, 8-2-293/82/JIII/349, PLOT NO.349, ROAD NO.80, JUBILEE HILLS, HYDRABAD-500 033, ANDRAPRADESH, PH:MOBILE- 09849043956. 6. MATHEW C KUNNUNKAL, PLOT NO.20, SURYA NAGAR COLONY, KARKHANA, SECONDERABAD 9, ANDHRAPRADESH, PIN-600 504, 9000017379(M). 7. SELECTION COMMITTEE OF KERALA ADMINISTRATIVE TRIBUNAL, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, GOVT. SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 8. CHAIRMAN, KERALA ADMINISTRATIVE TRIBUNAL, OLD COLLECTORATE BUILDING, VANCHIYOOR, THIRUVANANTHAPURAM, PIN-695 001, RESIDING AT KARTHIKA, ROSHAN LANE, BANERJI ROAD, KOCHI-682 018. R1 & R2 BY SRI.P.PARAMESWARAN NAIR,A.S.G OF INDIA, R3 & R7 BY ADVOCATE GENERAL SRI. K.P. DANDAPANI, SR. GOVT. PLEADER SRI. ROSHAN P. ALEXANDER, R4 BY SRI. K.R.B. KAIMAL, SENIOR ADVOCATE, S.C, ADV. SRI. B. UNNIKRISHNA KAIMAL, R8 BY ADV. SRI.P.GOPAL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/01/2012, ALONG WITH W.P.(C). NO.31598/2011 AND CONNECTED CASES, THE COURT ON 24/02/2012 DELIVERED THE FOLLOWING: W.P.(C).NO.34472/2011-S: APPENDIX PETITIONER'S EXHIBITS:- EXHIBIT P1- TRUE COPY OF THE NOTIFICATION DATED 25.8.2010. EXHIBIT P2- TRUE COPY OF THE APPOINTMENT ORDER OF THE CHAIRMAN DATED 25.8.2010. EXHIBIT P3- TRUE COPY OF THE GO MS.NO.32/2010/P & ARD DATED 20.9.2010. EXHIBIT P4- TRUE COPY OF THE ORDER PASSED IN SLP DATED 01/09/2011. EXHIBIT P5- TRUE COPY OF THE ADMINISTRATIVE TRIBUNALS (PROCEDURE FOR APPOINTMENT OF VICE CHAIRMAN AND MEMBERS) RULES 2006. EXHIBIT P6- TRUE COPY OF THE G.O.RT.NO.242/2010/P&ARD DATED 28.9.2010 CONSTITUTING THE SELECTION COMMITTEE FOR SELECTION OF MEMBERS OF THE STATE ADMINISTRATIVE TRIBUNAL. EXHIBIT P7- TRUE COPY OF THE NOTIFICATION INVITING APPLICATION OF MEMBERS OF S A T. EXHIBIT P8- TRUE COPY OF THE ORDER IN IA 16011/2010 IN WPC 32310/2010 DATED 19.11.2010. EXHIBIT P9- TRUE COPY OF THE RELEVANT PORTION OF THE ORDER IN IA 2959/11 IN WPC 27629/2010 DATED 8.3.2011. EXHIBIT P10- TRUE COPY OF THE NEW ITEM PUBLISHED IN MALAYALA MANORAMA DAILY DATED 16.12.2011. EXHIBIT P11- TRUE COPY OF THE MINUTES OF THE CABINET DATED 15.6.2011. EXHIBIT P12- TRUE COPY OF THE NEWS ITEM PUBLISHED IN HINDU DAILY DATED 13.10.2011. EXHIBIT P12(A)- TRUE COPY OF THE PROCEEDINGS OF STATE LEGISLATURE DATED 19.7.2011. EXHIBIT P12(B)- TRUE COPY OF THE TRUE ENGLISH TRANSLATION OF P12.A. EXHIBIT P13- TRUE COPY OF THE ORDER OF THE CHAIRMAN OF SAT DATED 28.6.2011. EXHIBIT P14- TRUE COPY OF THE ORDER DATED 5.7.2011 IN OP NO.35825/2002. EXT.P.15: TRUE COPY OF THE NOTIFICATION ISSUED BY THE REGISTRAR GENERAL OF THE HIGH COURT OF KERALA DTD. 21/12/2011. EXT.P.16: TRUE COPY OF THE LETTER FROM THE REGISTRAR OF THE TRIBUNAL DT. 17/12/2011. EXT.P.17: TRUE COPY OF THE NOTIFICATION OF THE REGISTRAR OF THE TRIBUNAL. EXT.P.18: TRUE COPY OF THE CENTRAL GOVT. TO THE STATE GOVT. DTD. 28/02/2011. EXT.P.19: TRUE COPY OF THE MINUTES OF THE SELECTION COMMITTEE. RESPONDENT'S EXHIBITS:- EXT.R3.A: COPY OF THE G.O.(MS).NO.9/08/P&ARD DTD. 29/1/2008. EXT.R3.B: COPY OF THE LETTER NO.A-11014/9/2009-AT DTD. 09/09/2009. EXT.R3.C: COPY OF THE LETTER NO.8875/AR-12(2)/2010/P&ARD DTD. 18/06/2011. EXT.R2.D: COPY OF THE LETTER NO.A-11014/1/2011-AT DTD. 28/11/2011. //TRUE COPY// P.S. TO JUDGE Prv. C.N.RAMACHANDRAN NAIR & K.VINOD CHANDRAN, JJ. C.R. .................................................................... WP(C) Nos.478 34472, 35143, 33436, 31598 of 2011, of 2012 & 22382 of 2011 .................................................................... Dated this the 24th day of February, 2012. Head Note:- Administrative Tribunals Act, 1985 - Section 6(3) - Administrative Tribunals (Procedure for appointment of Vice Chairman and Members) Rules, 2006 - Rule 3(2) - Challenging the establishment and constitution of Kerala Administrative Tribunal - direction given to the Central Government to forward the names of Judicial Members selected by the selection committee with the first recommendation of the State Government which has the approval of the Governor along with the remarks of the Central Government, to the Chief Justice of India for considering approval. If the Chief Justice of India approves the names, the Central Government should forward the file to the President for appointment in terms of Section 6(3) of the Act. J U D G M E N T Ramachandran Nair, J. This is the 2nd round litigation in this Court challenging the establishment and constitution of Kerala Administrative Tribunal. The first round of litigation ended up with the Division Bench judgment in Sreekandan v. State of Kerala, reported in 2011(2) KLT 394, wherein this Court upheld the establishment of the Tribunal and appointment of the Chairman, against which SLP filed is said to be pending before the Honourable Supreme Court. In these batch cases, in addition to the challenge against the establishment and constitution of the Tribunal and appointment of the Chairman, some of the petitioners have challenged the selection and appointment of two Administrative Members from out of the 3 candidates selected by the selection committee. So far as Judicial Members are concerned, even though the selection committee selected two candidates, both members of the High Court Bar, from among several candidates who applied for the post including judicial officers from the State Subordinate Judiciary, the State Government dropped their names with the concurrence of the Governor which is accepted by the Central Government. WP(C) No.22382/2011 is filed by a State Government Employees Organisation challenging the Government Orders dropping the two candidates selected for appointment as Judicial Members and besides praying for quashing those orders, the petitioner seeks direction from this Court to both the State and Central Governments to forward their names to the Chief Justice of India for considering approval for appointment. However, most of the petitioners in the other WP(C)s challenge the procedure for selection adopted by the selection committee for selection of all the members as arbitrary and violative of the provisions of the Act and the Rules. The factual position as of now is that the Chairman was appointed on 25/08/2010 and on account of delay in appointment of members, the Tribunal could not start functioning for 1= years, since it's establishment. From among the three Administrative Members selected by the selection committee constituted under Rule 3(2) of the Administrative Tribunals (Procedure for appointment of Vice Chairman and Members) Rules, 2006 (hereinafter referred to as the Rules for short), the President of India in consultation with the Chief Justice of India appointed two Administrative Members (both retired from Indian Administrative Service). The Administrative Members took charge on 22/12/2011 & 02/01/2012 respectively, and thereafter the Tribunal started sitting at the Principal Bench at Thiruvananthapuram. The Tribunal as of now is constituted with a retired High Court Judge as it's Chairman and two retired IAS Officers as Administrative Members. No Judicial Member is so far appointed. Learned Advocate General submitted that the State Government prefers appointment of District Judges as Judicial Members for which no amendment is so far made to the Rules. Consequent upon the commencement of sitting of the Tribunal, the Registrar General of the High Court issued orders on 21/12/2011 produced as Ext.P15 in WP(C) No.34472/2011 stating that from 22/12/2011 onwards, the High Court registry will not entertain any service case pertaining to employees of State Government, State Government Schools and Government Colleges. So far as service cases pending before the Single Judges of the High Court over which the Tribunal has jurisdiction are concerned, those are being transferred to the Tribunal in terms of Section 29 of the Act on orders by the Single Judges. Besides challenging the selection and appointment of members so far made, the petitioners have a case that the Tribunal without Judicial Members is not properly constituted and therefore should not be allowed to function. Consequently, challenge is made against Ext.P15 order of the Registrar General of the High Court prohibiting filing of service cases in the High Court over which the Tribunal has jurisdiction. Prayers in these Writ Petitions are for declaring the establishment of the Tribunal and appointment of the Chairman and Members as invalid and also for quashing Ext.P15 order of the Registrar General prohibiting filing of service cases in the High Court and a direction is also sought against the transfer of cases pending in the High Court to the Tribunal. So far as WP(C) No.22382/2011 is concerned, the same is filed by the Kerala Non-Gazetted Officers' Union challenging the State Government's decision to drop the two Judicial Members selected by the selection committee and the prayer is for quashing Government Orders and for direction to the State and Central Governments to proceed with their appointment if the Chief Justice of India approves the names. As all the issues raised are common or identical, we have clubbed the cases, heard learned counsel for both sides in all the cases and also the learned Advocate General and proceed to dispose of the cases by this common judgment. 2. Even though learned Senior counsel Shri.N.Dharmadan and other counsel appearing for the petitioners except the petitioner in WP(C) No.22382/2011, challenged the establishment and constitution of the Tribunal including appointment of Chairman, we do not wish to deal with any of the issues decided in the first round of litigation by the Division Bench of this Court, of which one of us (CNR(J)) is a member, wherein this Court declined to interfere with the decision taken by the State Government to establish the Tribunal and also upheld the appointment of Chairman of the Tribunal. The issues that remain to be considered are; (1) Challenge against the selection process and appointment of Administrative Members. (2) Whether the functioning of the Tribunal with the Chairman and two Administrative Members but without Judicial Members is in accordance with the Act and the Rules. (3) Whether the functioning of the Tribunal at Thiruvananthapuram without Bench at Ernakulam, the seat of the High Court, is violation of the Division Bench judgment of this Court referred above. (4) Whether the High Court is justified in transferring pending cases over which the Tribunal has jurisdiction. (5) Correctness of Ext.P15 order issued by the Registrar General of the High Court prohibiting filing of service cases in the High Court over which the Tribunal has jurisdiction. 3. Since the main issue raised is with regard to the legality of selection and appointment of the members, we have to consider the scope of the relevant provisions of the Act and the Rules, which are extracted hereunder. "The Administrative Tribunals Act, 1985 6. Qualification for appointment as Chairman, Vice-Chairman and other Members- xxxx xxxx (3) The Chairman and every other Member of the Central Administrative Tribunal shall be appointed after consultation with the Chief Justice of India by the President.to (4) Chairman Subjectandtheevery provision of sub-section (3), the other Member of an Administrative appointed by theTribunal the Governor of thePresidentfor State." a State shall be after consultation with concerned "The Administrative Tribunals (Procedure for appointment of Vice Chairman and Members) Rules, 2006. 3 Composition ofxxxx Selection Committee xxxxFor (2) selection of Vice Chairman and Members of State Administrative Tribunal - There shall be a Selection Committee of the concerned State Government for the purpose of the selection of the Vice Chairman and Members of the concerned State Administrative Tribunal consisting of the following; (i) Chief Justice of the High Court of the concerned state, Chairman; (ii) Government;Secretary Chief of the concerned State (iii) Chairman of the State Administrative Tribunal of the concerned state;the and (iv) Chairman Commission of the concernedState of Public Service State. 4. Vacancies:- The anticipated vacancies of Vice Chairman and Members shall be placed before the Selection Committee for a block of six months i.e., January to June and July to December of each calender year. The Chairman of the Administrative Tribunal concerned shall indicate the number of vacancies offromVice Chairman and the Membersthe the to be filled the Judicial stream and administrative stream respectively whereupon the procedure to fill up the vacancies, accordingly, shall be initiated bythe the Department of personnel and training Department concerned of theGovernment of Central State Government,the or as the case may be. 5. Procedure for inviting / processing of candidatures:- xxxx xxxx (2) State Administrative Tribunal- (i) StateThe Selection Committee of the concerned Government shall devise it's own procedure or lay down guidelines for inviting applications as also for the selection of the Vice-Chairman and the Members of the Administrative Tribunal of the State Government concerned. (ii) The Selection Committee shall, recommend persons for appointment as the Vice Chairman and Members from amongst the persons on the list of the candidates prepared by the Chief Secretary or Secretary, General Administration Department or Personnel Department of the State Government after writing to the various cadre controlling authorities of the State. (iii) The State Government shall, after taking into consideration the recommendations of the Selection Committee, make a list of persons selected and send the same with its recommendations to the Central Government who will in consultation with the Chief Justice of India in accordance with the provision contained in sub-section (7) of section 6 of the said Act, appoint the Vice Chairman or Members of the Administrative Tribunal of the State Government concerned. xxxx xxxx 8. Justice of India:- (1) Consultation with the Chiefof The recommendations the Selection Committee shall be placed before the Chief Justice for his views. (2) Committee,recommendationsthe viewthe the Chief The of Selection together with of Justice of India shall be submitted to the competent authority for orders." 4. From the provisions of the Act, what is clear is that the appointment of Chairman and Members of the State Administrative Tribunal are made by the President of India in consultation with the Governor and Chief Justice of India. So far as the appointment of Chairman is concerned, it is a closed chapter in as much as his appointment is upheld by this Court vide the Division Bench judgment above referred. Therefore, we proceed to consider the challenge against the procedure adopted for selection of members and the appointment of Administrative Members. What is clear from Rule 4 is that the selection process has to be started by the concerned Department in Government by inviting applications from eligible persons and then to place their names before the selection committee constituted under Rule 3(2) with the Chief Justice of the High Court as the Chairman, the Chief Secretary, the Chairman of the Public Service Commission and the Chairman of the State Administrative Tribunal as members. Admittedly, applications were called for from eligible candidates. Though only few applied for the post of Administrative Members, several persons including serving judicial officers in the State Subordinate Judiciary applied for the post of Judicial Members. Since only very few applied for the post of Administrative Members, the Selection Committee extended time to apply within which time a few more persons applied. The selection committee in their meeting proceeded to evaluate the bio-data and details of the applicants and selected the candidates and forwarded their list to the State Government. The main ground raised in support of the challenge against selection is that the selection committee made selection arbitrarily in as much as they did not evolve any guideline or conduct any examination, written or oral, but selected candidates based on the bio-data and other details furnished by the candidates. Learned Advocate General submitted that records do not disclose any guideline prepared by selection committee and selection obviously was made by them just by going through the applications and details available in the annexures thereto. Rule 5(2)(i) states that selection committee of the concerned State Government shall device it's own procedure, and can lay down guidelines for inviting applications as also for selection of Vice Chairman and Members of the Administrative Tribunal of the State concerned. The contention raised by the petitioners is that the selection committee has not laid down any procedure or guidelines for inviting applications and for selection, and so much so, the selection made by scrutiny of the applications is arbitrary. No written test or interview for selection is contemplated in the Rules referred above. On the other hand, Rule 5(2)(i) confers on the Selection Committee full freedom to adopt any procedure for selection such as written examination or interview or both. Admittedly, not even an interview was conducted and selection was made based on appraisal of details and bio-data furnished by the candidates. 5. The contention raised by the petitioners is that the selection of the few candidates made from out of several candidates applied for without appraising their relative merit is arbitrary and liable to be struck down. The respondents on the other hand relied on the decisions of the Honourable Supreme Court in R.K.Jain v. Union of India, reported in 1993 (4) SCC 119 and in B.Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees' Association, reported in 2006(11) SCC 731, and contended that this Court should not allow this contention to be raised in Public Interest Litigation. The Honourable Supreme Court has clearly stated that it is for the aggrieved person to challenge selection, if the same was done without evaluating relative merit. We find force in this contention because none of the applicant for the post has approached this Court challenging selection of members made by the selection committee. Even on merits, we do not find any justification to assume that selection was made by selection committee in an arbitrary manner merely because they have not conducted any interview or recorded evaluation of relative merit of candidates. Admittedly, the three Administrative and the two Judicial Members selected by the selection committee have the qualifications prescribed under the provisions of the Act and the Rules. In fact, two of the Administrative Members selected are already appointed after obtaining approval from the Chief Justice of India. Learned counsel for the petitioners by relying on the decision of the Honourable Supreme Court in Kumar Padma Prasad v. Union of India, reported in AIR 1992 SC 1213, contended that even if appointment is made after obtaining approval from the Chief Justice of India, the High Court can still exercise judicial review in the matter of legality of selection. The contention raised by the respondents is that the case referred above though led to cancellation of appointment of a High Court Judge made with the approval of the Chief Justice of India, the ground for quashing the appointment is lack of eligibility. However, the petitioners have no case that the candidates selected by the selection committee are not eligible for selection. We should keep in mind that the selection made is to a high level judicial post as Members of the Administrative Tribunal. Even though there is no legal bar, we do not think there is any necessity or justification to conduct written examination for the applicants to evaluate their relative merit. In fact such a procedure may even scare away suitable or eligible candidates from applying for the post or participating in the selection process. At the maximum, an interview could have been conducted, which also is dispensed with by the Committee probably because relevant details based on which selection has to be made are available in the applications or the documents submitted along with it. So long as the selected Administrative Members are concerned, they have held the post equivalent to Secretary to Government of India and both are retired IAS officers without any black mark in service. Their selection was approved by the State Government, Governor, Central Government and the Chief Justice of India, and so much so, we do not find any justification to interfere with their appointment. So far as the selection of the two Judicial Members are concerned, both of them are practicing advocates in the High Court and the Chairman of the selection committee being the Chief Justice of the High Court, and the Chairman of the State Administrative Tribunal, who was until then a Judge of the High Court, should have knowledge about the capacity, character and suitability of these candidates. So much so, we do not think the selection made is without any basis and without evaluating the merit of the candidates. Of course when several applicants apply for the post, relative merit has to be assessed for all the eligible candidates, even if the Rules do not expressly provide. This is because a fair procedure for selection should involve equal opportunity to all candidates. However, this issue arises for consideration only when complaint is from an aggrieved applicant which is not the case here. We therefore do not find any ground to interfere with the selection of members made by the selection committee. Consequently, we reject this contention raised by the petitioners. 6. The next ground raised by the petitioners is that the Tribunal in the present form with the Chairman and two Administrative Members without any Judicial Member therein cannot be called 'Tribunal' as such. Referring to Section 5 of the Act, the petitioners submitted that the Tribunal should have a Chairman and such number of Judicial and Administrative Members as the appropriate Government may deem fit. Specific reference is also made to Section 5(2) which states that a Bench of the Tribunal shall consist of one Judicial Member and one Administrative Member. The Tribunal as proposed by the State Government was with Chairman and 5 (five) members of whom three are Administrative Members and two Judicial Members. Learned Advocate General rightly pointed out that by virtue of the qualification of the Chairman as contained in Section 6, who is or has been a Judge of the High Court, he will always serve as a Judicial Member and therefore the Chairman with an Administrative Member can constitute a Bench of the Tribunal in terms of Section 5(2) of the Act. Further, Section 5(6) authorises the Chairman to constitute Single member Bench to exercise jurisdiction, powers and authority of the Tribunal in respect of such classes of cases or such matters pertaining to such classes of cases as the Chairman may by general or special order specify. In view of these provisions, we are of the view that the Chairman with an Administrative Member can constitute a Bench of the Tribunal and it is always open to the Chairman to constitute a Single Bench Tribunal with the Administrative Member to hear such classes of cases that could be decided by the Single member Bench of the Tribunal. So much so, we do not find any handicap for the functioning of the Tribunal with the present constitution. The petitioners contention that the Tribunal does not have the full number of members as notified by the State Government also is not a ground to interfere with the constitution of the Tribunal because a Tribunal can function with just two members one Judicial and another Administrative Member and the fact that there is vacancy to be filled up does not affect the validity of the constitution of the Tribunal or its functioning with the available members. We, therefore, reject this contention raised by the petitioners. 7. So far as the contention that the Tribunal does not have a Bench at Ernakulam, the seat of the High Court, with the filing facility is concerned, learned Advocate General has conceded that the Government has issued notification after filing of the WP(C)s and the Bench will start functioning at Ernakulam at the earliest. In view of this submission and the notification issued by the Government, we reject the petitioners' challenge against the functioning of the Tribunal at Thiruvananthapuram alone. 8. The next ground raised is against the transfer of service cases pending in the High Court over which the Tribunal has jurisdiction. Admittedly, only Single Bench service cases over which the Tribunal has jurisdiction are being transferred to the Tribunal that too on orders from the Judge concerned. Section 29 (1) & (2) of the Act is as follows:- "29. Transfer of pending cases.- (1)court suit or other proceeding pending before anythe establishment of a Tribunalbefore this Act,dateother Everyor authority immediately suit or proceeding the causeunder beingof a based isaftersuch that it wouldofhave been, if it had action whereon it is arisen jurisdiction of such Tribunal, shall standwithin such establishment, the transferred on that date tothat Tribunal: applyProvidedappeal pending as aforesaid before a suchnothing in this sub-section shall to any High Court. (2) Every suit or other proceeding pending before a court or other authority immediately before the date with effect from which jurisdiction is conferred on a Tribunal in relation to any local or other authority or corporation (or society), being a suit or proceeding the cause of action whereon it is based is such that it would have been, if it had arisen after the said date, within the jurisdiction of such Tribunal, shall stand transferred on that date to such Tribunal: that applyProvidedappeal pending as aforesaid before a nothing in this sub-section shall to any High Court. Explanation.- For the purposes of this sub-section "date with effect from which jurisdiction is conferred on a Tribunal", in relation to any local or other authority or corporation (or society), means the date with effect from which the provisions of sub-section (3) of Section 14 or, as the case may be, sub section (3) of Section 15 are applied to such local or other authority or corporation or society. " What is clear from the above is that as and when the Tribunal is established every service case pending before any Court or authority other than appeals pending before the High Court over which the Tribunal has jurisdiction "shall stand transferred" on that date to the Tribunal. In our view, this is a self operative provision and therefore on the commencement of the State Service Tribunal, the High Court Registry is bound to transfer all Single Bench cases to the Tribunal over which they have jurisdiction. In fact this should be done by the Registry without waiting for even orders from the Judge. Of course a screening during posting by the Judge will ensure that even by mistake Registry will not transfer cases to the Tribunal over which they have no jurisdiction. We, therefore, do not find any merit in the challenge against transfer of cases by the High Court to the Tribunal over which the Tribunal has jurisdiction. 9. The last issue to be considered is about the validity of Ext.P15 order issued by the Registrar General prohibiting filing of service cases in the High Court over which the Tribunal has jurisdiction. It is a settled position by virtue of the judgment of the Honourable Supreme Court in L.Chandrakumar v. Union of India, reported in AIR 1997 SC 1125 that the administrative Tribunal on constitution shall be the first Court of contest for service matters over which they have jurisdiction and the High Court will be only exercising judicial review that too by Division Bench of the High Court. Even going by the settled law on judicial review, High Court will not exercise writ jurisdiction when there is an effective alternate remedy for the party. So much so, the Registrar General's order is a declaration of legal position settled by judgment of the Honourable Supreme Court above referred. Consequently, in all service matters, over which the Tribunal has jurisdiction, the dispute should be first raised before the Tribunal and the High Court will exercise judicial review only against orders of the Tribunal. We therefore reject the challenge against Ext.P15 order issued by the Registrar General of the High Court as devoid of any merit. 10. WP(C) No.22382/2011 is filed by Kerala Non Gazetted Officers' Union challenging the decision of the cabinet produced as Ext.P4 to drop the names of two Judicial Members selected by the selection committee for appointment to the Tribunal. The relevant portion of the cabinet decision conveyed to the State Assembly produced as Ext.P4 is as follows:- "The cabinet has decided to communicate to the Central Government that previous Government's nomination of the Judicial Members for appointment to the Kerala Administrative Tribunal is not acceptable to the present Government." The Chief Minister's reply in the assembly - "the impression that the Government is substituting two names nominated by the previous Government is not correct. The decision of the Government is to appoint Judicial Members from the members of the judiciary itself." 11. Learned Senior counsel Shri.K.Jayakumar appearing for the petitioner argued on the maintainability of the WP(C) as a public interest litigation and also challenged the decision of the Government to drop the names of the Judicial Members. Learned Advocate General vehemently opposed stating that the State Government has dropped the names with the approval of the Governor and on being forwarded the State Government's recommendations, the Central Government also accepted the same. Ext.R2(c) produced by the Government along with their counter in WP(C) No.34472/2011, which is the communication from the State Government to the Central Government, is as follows:- State"As per Government letter under reference, the Government had furnished the list of Members of the Kerala Administrative Tribunal (Judicial Members-2 and Administrative Members-3) for appointment as Members of the Kerala Administrative Tribunal. In the changed scenario, the Council of Ministers in their meeting held on 15/06/2011 reviewed the nominations of two Judicial Members of the Kerala Administrative Tribunal proposed in the Government letter cited and resolved to invite fresh nominations of Judicial Members, observing statutory procedures in the matter. I am therefore, request you to consider the nominations of two Members, viz; Ms.P.V.Asha and Shri.Asok JudicialMammen Cherian contained in the Government letter cited is repealed and withdrawn." It is seen from Ext.R2(d) produced along with Ext.R2(c) that the above proposal of the State Government sent with the concurrence of the Governor is approved by the Central Government on 28/11/2011. The petitioner challenges the decision taken by the Government in dropping the names of Judicial Members selected by the selection committee as malafide, arbitrary and without jurisdiction. 12. The State as well as the party respondents impleaded in the WP(C) challenge the maintainability of the public interest litigation seeking the relief prayed for. The petitioner's case is that being the representative body of the members of the NGOs serving the State Government, the Organisation is seriously concerned about the constitution and functioning of the Tribunal because service disputes of it's members are settled by the Tribunal. We find force in this contention because the members of the petitioner organization are the beneficiaries of the Tribunal and so much so, they have a right to contend that the Tribunal should be constituted in accordance with the statutory provisions. We therefore hold that the Public Interest Litigation filed by a Government Employees Organisation challenging Exts.R2(c) and R2(d) is maintainable. 13. The first ground raised by the petitioner is that the Government has no powers under the Act and Rules or otherwise to review the selection of candidates made by the selection committee. So far as binding nature of Government's decisions on successive Government's are concerned, the learned counsel for the petitioner has relied on the decision of the Honourable Supreme Court in A.P.Dairy Development Corporation v. B.Narasimha Reddy, reported in 2011 (9) SCC 286, wherein the Honourable Supreme Court held as follows:- "40. In the matter of the Government of a State, the succeeding Government is duty-bound to continue and carry on the unfinished job of the previous Government, for the reason that the action is that of the "State", within the meaning of Article 12 of the Constitution, which continues to subsist and therefore, it is not required that the new Government can plead contrary to the State action taken by the previous Government in respect of a particular subject. The State, being a continuing body can be stopped from changing its stand in a given case, but where after holding enquiry it came to the conclusion that action was not in conformity with law, the doctrine of estoppel would not apply. Thus, unless the act done by the previous Government is found to be contrary to the statutory provisions, unreasonable or against policy, the State should not change its stand merely because the other political party has come into power." The petitioner has also relied on the decision of the Division Bench judgment of the Bombay High Court in M.Ramesh Kumar, I.A.S.(Retd.) v. The State of Maharashtra and Others, (WP No.1031/2011) where in a similar case the Bombay High Court has held that the candidates selected by the selection committee for appointment to the post of members of the Tribunal cannot be dropped by the State Government. On going through both the above referred decisions, we are of the view that a change of Government in the course of selection and appointment of members of the Tribunal is not a ground to give up the selection process half way through. 14. Learned Advocate General appearing for the State referred to the reply given by the Chief Minister in the Assembly, which is extracted above, wherein it is clearly stated that it is not because of change of the Government but change of policy of the Government to appoint Judicial Members from the members of judiciary itself, as the justification to drop the names of two Judicial Members selected by the selection committee. However, Ext.R2(c) does not support this contention of the learned Government Pleader because all what is stated therein is that in the "changed scenario" which is only change of Government, the Government does not accept the two Judicial Members selected by the selection committee and accepted by the previous Government. We feel the authority of the State Government to drop the names needs to be examined with reference to the statutory provisions. There is no provision in the Rules authorizing the State Government to revert the selection and to drop the names of the candidates selected by the selection committee constituted under Rule 3(2) of the Rules. All what the State Government can do is to express their views when the list is forwarded to the Governor as required under Section 6(4) of the Act. Stage wise procedure to be followed for appointment of members of the Tribunal as is clear from the provisions of Section 6 of the Act and Rules 3 (4), 3(5) and 3(8) are the following :- (1) The Chief Secretary or the Secretary of the Department concerned of the State Government will invite applications from among qualified persons for appointment of required number of members of the Tribunal. (2) Valid applications received from eligible candidates with annexures thereto will be placed by the Secretary to Government to the selection committee constituted under Rule 3(2) for making selection and for preparation of list of candidates selected by the selection committee in terms of Rule 5(2). (3) State Government is free to express their views on the selected candidates and forward the same to the Governor of the State for him to endorse the same or to make his suggestions / recommendations / views and return the file to the State Government. (4) The State Government on receipt of the file from the Governor will forward the same to the Central Government, which shall record their views and forward the file to the Chief Justice of India for his approval as required under Section 6(3) read with Rule 8(1) of the Rules. (5) The Chief Justice of India will naturally consider the suitability of the candidates, the views expressed by the State and Central Governments and Governor and may or may not approve the names forwarded for appointment. (6) On receipt of the file from the Chief Justice of India, the Central Government will only forward the names approved by the Chief Justice of India for appointment by the President of India. So far as candidates who are not approved by the Chief Justice of India is concerned, their names will be dropped by the Central Government without forwarding to the President. 15. From the above scheme of selection as revealed from the provisions of the Act and the Rules we do not find any authority for the State Government to review and drop selected candidates from the list prepared by the selection committee. We are in complete agreement with the view expressed by the Bombay High Court in this regard in the decision above referred. The State Government's decision stated in the Court to appoint Judicial Members from the State Judiciary does not find any support in the provisions of the Act or the Rules in regard to the qualification prescribed for appointment of Judicial Members. We therefore do not find any justification for the State Government to drop the names, and the Governor's approval to the State Government's decision does not attach any sanctity to it. As a result of this finding, the Central Government's decision to accept the State Government recommendation is also not sustainable. For the reasons stated above, we dismiss WP(C) Nos.34472, 35143, 33436, 31598 of 2011 & 478 of 2012 and allow WP(C) No.22382/2011 by vacating Ext.R2(c) issued by the State Government on 18/06/2011 and Ext.R2(d) issued by the Central Government on 28/11/2011 and by restoring to the file of the Central Government, the first decision of the State Government approved by the Governor forwarding the names of Judicial Members selected by the selection committee. Consequently, there will be direction to the Central Government, namely 1st respondent in the WP(C)s, to forward the names of Judicial Members selected by the selection committee with the first recommendation of the State Government which has the approval of the Governor along with the remarks of the Central Government, to the Chief Justice of India for considering approval. If the Chief Justice of India approves the names, the Central Government should forward the file to the President for appointment in terms of Section 6(3) of the Act. (C.N.RAMACHANDRAN NAIR, JUDGE) (K.VINOD CHANDRAN, JUDGE) jg |
