Arshad Suhail A. and others v Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 24[th] DAY OF MAY 2021 / 3RD JYAISHTA, 1943** **OP (CAT) NO. 23 OF 2021** **AGAINST THE ORDER IN OA.NO.540/2020 OF** **THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** ## **PETITIONER/APPLICANTS IN O.A.:** **1 ARSHAD SUHAIL A., AGED 23 YEARS, S/O.ASHIK, K.I. KEELAILLOM HOUSE, AGATHY ISLAND, LAKSHADWEEP - 682553, 2 MOHAMMED YASEEM K., AGED 23 YEARS, S/O. USMAN, KOMALAM, NEAR NORTH CHILDRENS PARK, KAVARATHY, LAKSHADWEEP - 682555. 3 THOUFEEQ N.P., AGED 23 YEARS, S/O. T.P. KOYA, THITTIYAPADA HOME, KALPENI, LAKSHADWEEP - 682557.** **BY ADV G.HARIKUMAR NAIR** ## **RESPONDENTS/RESPONDENTS IN O.A.:** **1 UNION OF INDIA, REPRESENTED BY SECRETARY(AGRICULTURE), MINISTRY OF AGRICULTURE, SHASTHRI BHAVAN, NEW DELHI - 110001. 2 ADMINISTRATOR, LAKSHADWEEP ADMINISTRATION, KAVARATHY, KALSHADWEEP – 682555. 3 THE DIRECTOR ANIMAL HUSBANDRY, DEPARTMENT OF ANIMAL HUSBANDRY, LAKSHADWEEP ADMINISTRATION, KAVARATHY ISLAND, LAKSHADWEEP - 682555. SHRI.P.VIJAYAKUMAR, ASG OF INDIA SHRI.MANU.S, SCGC, ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP** **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 24.05.2021, THE COURT ON** **THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(CAT) No.23 of 2021 2 ## **ALEXANDER THOMAS & K. BABU, JJ.** ---------------------------------------------------- O.P.(CAT) No.23 of 2021 _[arising out of order dated 02.12.2020 in O.A. No.540/2020 on the file of the C.A.T. , Ernakulam Bench]_ ---------------------------------------------- Dated this the 24[th] day of May, 2021 ## **J U D G M E N T** ## **Alexander Thomas, J.** The prayers in the afore captioned Original Petition(CAT) filed under Articles 226 & 227 of the Constitution of India are as follows: _{See page No.11 of the paper book of this original petition}_ - _“(i) To call for the records of the case;_ - _(ii) To direct that selection process pursuant to Exhibit P-1(A-10) may be kept in abeyance pending final adjudication of OA No.540/2020;_ - _(iii) To declare that the petitioners be considered for the post of Stockman and similar grades pursuant to Exhibit P-1(A-10) on the basis of their superior qualifications; and_ - _(iv) To pass such other orders that are deemed just, fair and necessary in the facts and circumstances of the case.”_ 2. Heard Sri.G.Harikumar Nair, learned Counsel appearing for the petitioners in the O.P/applicants in the O.A. before the Tribunal, Sri.S.Manu, the learned Senior Central Government Standing Counsel for the Lakshadweep Union Territory Administration, appearing for respondents 2 & 3 and O.P.(CAT) No.23 of 2021 3 Sri.P.Vijayakumar, the learned Assistant Solicitor General of India, appearing for the 1[st] respondent (Union of India). 3. The present original petition arises out of an interim order passed by the Central Administrative Tribunal, Ernakulam, at Ext.P3 order dated 02.12.2020 in O.A. No.540/2020, whereby the Tribunal has not granted interim stay of Anxs.A10 & A11 selection notifications dated 24.8.2020 & 28.10.2020 respectively, issued by the 3[rd] respondent (Director, Animal Husbandry Department), for selection to the post of Stockman in the Animal Husbandry Department, but has only limited the interim order by ordering that the further steps in pursuance of Anxs.A10 & A11 selection notifications may be kept in abeyance until the representation of the applicants is considered and decided by the 3[rd] respondent herein. 4. The brief of the case of the petitioners is to the effect that the qualifications prescribed for the post of Stockman in the Animal Husbandry Department is only a pass in 12[th] Standard and pass in Livestock Inspectors Training Certificate Course from recognised institutions of State/Central Government having a duration of 9 months and that the said qualifications have been prescribed long ago. That, now very many advanced O.P.(CAT) No.23 of 2021 4 qualifications, especially degree qualifications in that regard are available and that the petitioners have secured higher qualifications of B.Sc. in Poultry Production and Business Management and training course in Artificial Insemination and Dairy Management. That, taking into account the advancement of various scientific and technical aspects, the stand of the department of the Lakshadweep Administration in still sticking on to the qualifications of pass in 12[th] Standard and training course, etc for the post in question, when higher and advanced qualifications are available and lot of young unemployed persons like the petitioners have acquired such qualifications, etc is arbitrary and unreasonable, and that the department has to reasonably act taking into account the realities of the day and should prescribe the abovesaid higher qualification as far as the post of Stockman in Animal Husbandry Department is concerned, etc. The petitioners have earlier approached the Central Administrative Tribunal, Ernakulam Bench, by filing an original application as O.A. No.644/2019 in that regard and the Tribunal, as per Anx.A7 final order dated 29.08.2019, had directed the 3[rd] respondent herein (The Director, Animal Husbandry Department) to examine the aspects urged by the petitioners in the O.P.(CAT) No.23 of 2021 5 representations filed by them and to take a considered decision thereon on the abovesaid aspects. Further, the case of the petitioners is that no effective decision was taken by the competent authority among the respondents in compliance with the directions issued by the Tribunal as per Anx.A7 final order rendered as early as on 29.08.2019 and that thereafter they have issued Anxs.A10 & A11 selection notifications for the abovesaid post of Stockman and based on the unamended qualifications and before taking a decision on the matters ordered to be considered in terms of Anx.A7 order of the Tribunal. It is in this background that the petitioners have again approached the Central Administrative Tribunal, Ernakulam Bench, by filing the instant O.A. No.540/2020. 5. The prayers in the instant original application O.A.No.540/2020 filed by the petitioners herein before the Central Administrative Tribunal, Ernakulam Bench, are as follows: _{See page No.24 of the paper book of this original petition}_ - “A) To call for the records leading to issuance of Annexures A-10 and A-11 and quash the same as arbitrary, illegal and violative of Annexure A-7 order of this Hon’ble Tribunal. - B) To declare that Annexure A-3 Recruitment Rules are to be amended forthwith by including the candidates who have a Degree in B.Sc Poultry Production and Business Management as one of the educational qualification prescribed for direct recruitment to the post of stockman and similar grades, - C) To direct respondents 2 and 3 to include the applicants for the trade test to be conducted for selection to the post of stockman and O.P.(CAT) No.23 of 2021 6 similar grades, and _D) such other orders and directions as are deemed fit in the facts and circumstances of the case.”_ 6. The interim relief sought for in Ext.P1 O.A. No.540/2020 is as follows : _{See page No.24 of the paper book of this original petition}_ _“Pending final decision in the original application, it is respectfully prayed that this Honourable Tribunal may be pleased to stay Annexures A-10 and A-11 and all proceedings in furtherance thereof or to provisionally permit the applicants to attend the trade test to be conducted for selection to the post of stockman and similar grades._ ” 7. On the abovesaid interim relief the Tribunal has passed the instant impugned Ext.P3 order dated 02.12.2020, in the said O.A. No.540/2020, which reads as follows: _{See page No.69 of the paper book of this original petition}_ “Counsel for the applicant present. Counsel for the respondents has filed an objection today and submits that the Department is in the process of amending the Rules. But so far, it is not implemented and they are proceeding with the selection. On a perusal of the earlier order passed by this Tribunal in O.A 644/2019 filed by the applicants, it is seen that there is a direction to the respondents that not to go for selection before passing an order on the representation filed by the applicants.” In view of the above, the respondents are directed not to proceed with the selection till an order is passed on the representation filed by the applicants in O.A 644/2019. List on 21.1.2021. _Issue a copy of this order to learned counsel for the parties.”_ 8. When the matter had come up for consideration on the previous occasion, this Court had passed order dated 24.03.2021, O.P.(CAT) No.23 of 2021 7 directing issuance of notice before admission to the respondents concerned and further ordered as interlocutory measure that further steps in pursuance of the impugned Anx.A10 selection notification & Anx.A11 proceedings shall be kept in abeyance by the respondent authorities concerned and that the said interlocutory direction will be in force till 15.06.2021. 9. We have heard both sides _in extenso_ . Both sides have reiterated their respective submissions. In particular, Sri.S.Manu, the learned Senior Central Government Standing Counsel for the Lakshadweep Union Territory Administration, appearing for 3[rd] & 4[th] respondents has also placed reliance on judgment of the Apex Court in the case in _**The Maharashtra Public Service Commission & Ors. v. Sandeep Shriram Warade & Ors.**_ _**[(2019) 6 SCC 362]**_ and has contended that the plea of the petitioners that the departmental authorities should necessarily insist on higher qualifications as minimum eligibility qualifications for the post in question is a matter which will not fall within the realm of public law remedy of judicial review and those are policy prerogatives which would fall within the exclusive domain of the employer and the rule making authority concerned, etc. O.P.(CAT) No.23 of 2021 8 10. After hearing both sides, we are of the firm view that we should not enter into the terrain of the merits of the rival pleas in this case for the simple reason that the present original petition arises out of an interim order passed by the Tribunal and the main matter in the original application at Ext.P1 O.A. No.540/202o is still pending consideration before the Tribunal. 11. One of the submissions made by Sri.G.Harikumar Nair, the learned counsel appearing for the petitioners, is that when the Tribunal had specifically directed the respondent authorities concerned as per Anx.A7 final order dated 29.08.2020 in O.A. No.644/2019 that they should take a considered decision on the abovesaid issue regarding the qualifications for the post in question, they should have taken a decision thereon one way or in other, and it is only after a decision is taken that they should have issued selection notifications in the nature of Anxs.A10 & A11. Further that, without adopting the said proper course of action, the respondent authorities have not complied with the directions in Anx.A7 final order and has issued Anxs.A10 & A11 selection notifications which would made the matters in his “ _fait accompli_ ”. Further that, even if the ultimate decision that is taken by the respondent authorities concerned in pursuance of Anx.A7 verdict O.P.(CAT) No.23 of 2021 9 of the Tribunal is fully or partially in favour of the petitioners herein and if Anx.A11 selection notification dated 28.10.2020 is allowed to stand, then the benefit of the said favourable decision, that may be taken by the respondent authorities concerned in favour of the petitioners will not enure to them as far as the selection process covered by Anxs.A10 & A11, and the respondents would then contend that the benefit of any such decision will enure only in the case of selection notification to be issued in future and that therefore the whole approach made by the respondent authorities is improper and unreasonable, etc. 12. Having regard to the rival submissions and having regard to the crucial aspect that the main matter is still pending before the Tribunal, we would request the Tribunal to ensure that the main matter in Ext.P1 original application O.A. No.540/2020 is taken up for consideration so as to facilitate its final disposal without much delay, preferably within 2 to 3 months or so, or within any reasonable time limit that may be appropriately fixed by the Tribunal. In the meanwhile, it is ordered that the Tribunal will re-consider the matters in respect of the interim relief as sought for in the O.A. and after hearing both sides, may consider whether the interim relief sought for in Ext.P1 O.A. is to be O.P.(CAT) No.23 of 2021 10 granted, pending final disposal of the said O.A. within one month from the date of receipt of a copy of this judgment. Further the Tribunal may decide the issues in respect of the main matter and the interim matter untrammeled and uninfluenced by the observations made by this Court, and it is for the Tribunal to independently consider and decide on the various matters in relation to the main matter and the interim matter in this O.A. in accordance with law. 13. Until orders are so passed by the Tribunal afresh on the interim relief sought for by the applicants in the O.A., further steps in pursuance of Anx.A10 & Anx.A11 selection notification shall be kept in abeyance by the respondent authorities, concerned. 14. The Registry will forward a certified copy of this judgment to the Central Administrative Tribunal, Ernakulam Bench, who is dealing with O.A. No.540/2020, for necessary information and further action, at the cost of the petitioners. With these observations and directions, the above Original Petition will stand finally disposed of. ## **Sd/ALEXANDER THOMAS, JUDGE** **Sd/K. BABU, JUDGE** Skk//24052021 O.P.(CAT) No.23 of 2021 11 ## **ANNEXURE/EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE MEMORANDUM OF ORIGINAL APPLICATION NO.540 OF 2020 DATED 08.11.2020 BEFORE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH EXHIBIT P1 (A-10) A TRUE COPY OF EMPLOYMENT NOTICE DATED 24.08.2020. EXHIBIT P1 (A-11) A TRUE COPY OF NOTICE DATED 28.10.2020 ISSUED BY 3RD RESPONDENT. EXHIBIT P1 (A-1) A TRUE COPY OF CERTIFICATE ISSUED BY THE REGISTRAR, KERALA VETERINARY AND ANIMAL SCIENCE UNIVERSITY PUKODE, WAYANAD TO THE 1ST PETITIONER DATED 8/8/2019 ALONG WITH PROVISIONAL CERTIFICATE.** **EXHIBIT P1 (A-2) A TRUE COPY OF CERTIFICATE ISSUED TO THE 1ST APPLICANT BY MITHRANIKETHAN KRISHI VIGYAN KENDRA DATED 30.07.2019.** **EXHIBIT P1(A-3) A TRUE COPY OF LAKSHADWEEP GAZETTE DATED 15.12.2010. EXHIBIT P1 (A-4) A TRUE COPY OF REPRESENTATION DATED 27.2.2019 SENT BY 1ST PETITIONER.** **EXHIBIT P1 (A-5) A TRUE COPY OF REPRESENTATION DATED 26.08.2019 SENT BY 1ST PETITIONER. EXHIBIT P1(A-6) A TRUE COPY OF MEMORANDUM OF ORIGINAL APPLICATION NO. 644 OF 2019 DATED 20.09.2019 FILED BEFORE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL.** **EXHIBIT P1 (A-7) A TRUE COPY OF ORDER IN OA NO.644 OF 2019 DATED 29.08.2020 OF HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL. EXHIBIT P1 (A-8) A TRUE COPY OF LETTER DATED 31.1.2019 ISSUED BY COLLEGE OF AVIAN SCIENCE AND MANAGEMENT.** O.P.(CAT) No.23 of 2021 12 |**EXHIBIT P1**|**(A-9)**|**A TRUE COPY OF OFFICE MEMORANDUM DATED**| |---|---|---| |||**03.04.2020 OF FILED ENUMERATORS ISSUED BY 3RD**| |||**RESPONDENT.**| |**EXHIBIT P2**||**TRUE COPY OF COUNSEL STATEMENT FILED BY**| |||**RESPONDENT DATED 02.12.2020 IN ORIGINAL**| |||**APPLICATION NO. 540 OF 2020 BEFORE CENTRAL**| |||**ADMINISTRATIVE TRIBUNAL.**| |**EXHIBIT P3**||**TRUE COPY OF ORDER DATED 02.12.2020 IN OA NO.**| |||**540/2020 PASSED BY THE HON'BLE CENTRAL**| |||**ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.**| |**EXHIBIT P4**||**TRUE COPY OF LETTER F NO.5/162019-AH (COURT**| |||**CASE), DATED 28.12.2020 PASSED BY THE 3RD**| |||**RESPONDENT.**|