High Court of KeralaSingle Judge2021-03-26Dismissed for lack of maintainability; to appro...

Bineeb Kumar v. State of Kerala and Others

Case / Petition Number:WP(C).No.5568 OF 2021(U)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anu Sivaraman
Judgment Date: 2021-03-26
Court Decision / Holding: Writ petition not maintainable; petitioner to approach Kerala Administrative Tribunal (KAT) at the first instance; petition dismissed without prejudice to merits.
Final Disposition: Dismissed for lack of maintainability; to approach KAT first; merits not adjudicated in this petition.

Parties to the Case

Appellants / Petitioners

Bineeb Kumar

Respondents

The State of Kerala
The Secretary to Government of Kerala, Department of Labour and Skill
Training Director, Training Directorate, Department of Industrial Training

Legal Representation & Advocates

Counsels for Petitioners

• Sri.R.T. Pradeep
• Smt.M. Bindudas
• Sri.K.C.Harish

Case Synopsis & Summary

This writ petition under Article 226 of the Constitution challenges Exhibit P12, a Government Order/Rules that affect the post of Motor Driver, and seeks quashing of the portion relating to the post under those rules as well as a direction to re-notify Exhibit P9 without altering the qualifications (SSLC and NTC) for the Motor Driver post, including Note-1. The petitioner, a driver in the Industrial Training Department, asserts that the challenged rules unlawfully modify recruitment standards and seeks reliefs to ensure the status quo of qualifications. The Registry raised a preliminary objection contending the petition is not maintainable before the High Court and ought to be filed before the Kerala Administrative Tribunal (KAT). The petitioner relies on Chandra Kumar v. Union of India and others to argue that the High Court’s jurisdiction under Article 226 cannot be ousted by the Administrative Tribunals Act and that service-matter disputes must be considered by this Court. The respondents counter that the matter concerns Exhibit P12 rules, and under Section 15 of the Administrative Tribunals Act, KAT is vested with the jurisdiction over service matters, with any subsequent challenge to KAT orders possible only via an appropriate remedy. The judge ultimately holds that the State Administrative Tribunals have jurisdiction over recruitment and service disputes, and Section 15 transfers this jurisdiction accordingly. Relying on Chandra Kumar, the court concludes the petition is not maintainable here and must be pursued before KAT, dismissing the petition without prejudice to merits.

Provisions of Law Cited

Administrative Tribunals Act, 1985Section 15, Administrative Tribunals Act, 1985Section 19, Administrative Tribunals Act, 1985Article 226, Constitution of IndiaArticle 323A, Constitution of India

Legal Doctrines & Maxims

Tribunals are not substitutes for High Courts or the Supreme Court; they can test the vires of subordinate legislation but cannot substitute parent statutes or oust the jurisdiction of High Courts under Article 226 or the Supreme Court.
Tribunals act as courts of first instance for service matters; jurisdiction over service disputes is transferred to the State Administrative Tribunal under the AT Act.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Exhibit P12 about the recruitment rules for the Motor Driver post alters essential qualifications, and seeks quashing of the offending portion and re-notification of the required qualifications without modifying them. He argues that the challenge concerns service conditions and as such could be entertained by the High Court under Article 226, citing Chandra Kumar to insist that the High Court cannot be ousted by the AT Act. He maintains that the Tribunal’s transfer of jurisdiction under the AT Act should not bar his constitutional remedy and seeks to protect his rights to challenge the rules; the prayer includes directing the respondents to maintain the existing qualification standards pending adjudication.

Contentions of Respondents

The respondents submit that Exhibit P12 rules are a matter of recruitment and that Section 15 of the AT Act vests jurisdiction over service matters with KAT; according to the Government Pleader, any challenge to the rules belongs to KAT and would be within its competence, with only post-decisional challenges possible before this Court according to law. They rely on Chandra Kumar to argue that tribunals can test the vires of subordinate legislations but cannot substitute High Courts or Supreme Court, and that the petition cannot be entertained in this Court for service matters; the challenge to the vires or validity of the parent statute is outside the tribunal’s ambit. They contend that the petitioner must approach KAT first and that the present petition is not maintainable before this Court.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Chandra Kumar v. Union of India and others	AIR 1997 SC 1125	Positive	Cited to establish that tribunals have power to consider vires of subordinate legislation but cannot replace High Courts or Supreme Court; reinforces jurisdictional hierarchy and supports reference to KAT for service-matter challenges.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943** ## **WP(C).No.5568 OF 2021(U)** ## **PETITIONER:** **BINEEB KUMAR AGED 50 YEARS S/O.DIVAKARA PANICKER, DRIVER, GOVERNMENT INDUSTRIAL TRAINING INSTITUTE, MALAYINKEEZHU, THIRUVANANTHAPURAM 695 571 RESIDING AT 'NAYANAM', OORUTTAMBALAM P.O., THIRUVANANTHAPURAM 695 507** **BY ADVS. SRI.R.T.PRADEEP SMT.M.BINDUDAS SRI.K.C.HARISH** ## **RESPONDENTS:** |**1**|**THE STATE OF KERALA**| |---|---| ||**REP.BY CHIEF SECRETARY,**| ||**GOVERNMENT OF KERALA, SECRETARIAT,**| ||**THIRUVANANTHAPURAM 695 001**| |**2**|**THE SECRETARY TO GOVERNMENT OF KERALA**| ||**DEPARTMENT OF LABOUR AND SKILL,**| ||**SECRETARIAT, THIRUVANANTHAPURAM 695 001**| |**3**|**TRAINING DIRECTOR**| ||**TRAINING DIRECTORATE, DEPARTMENT OF INDUSTRIAL**| ||**TRAINING, THOZHIL BHAVAN,**| ||**THIRUVANANTHAPURAM 695 003**| ## **OTHER PRESENT:** ## **NISHA BOSE GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-032021, THE COURT ON 26-03-2021 DELIVERED THE FOLLOWING:** W.P.(C).No.5568/2021 2 ## **JUDGMENT** ## **Dated this the 26[th] day of March 2021** 1.The writ petition is filed seeking the following reliefs:- ”i.To issue a writ of certiorari or any other appropriate writ order or direction to quash Exhibit P12 so far it relate to the post of Motor Driver; ii.To issue a writ of mandamus or any other appropriate writ order or direction to the respondents to re-notify Exhibit P9 as such without tinkering with the qualifications of SSLC and NTC in the concerned trade to the post of Motor Driver and Note-1 appended therein within such time fixed by this Hon'ble Court.” 2.The Registry has raised a preliminary objection that the writ petition is not maintainable before this Court and has to be filed before the Kerala Administrative Tribunal. The learned counsel for the petitioner submits that in view of the definition of service matters under the Administrative Tribunals Act, 1985 as also the specific provision in Section 19 thereof, an original application can be filed before the KAT only against any order pertaining to any matter within the jurisdiction of the Tribunal and that since the petitioner's prayer is for a consideration of his objections to the special rules, an O.A cannot be filed before the Tribunal. Relying on the decision of W.P.(C).No.5568/2021 3 the Apex Court in **Chandra Kumar v. Union of India and others** [AIR 1997 SC 1125], it is contended that the jurisdiction of the High Court under Article 226 of the Constitution of India cannot be ousted by the provisions of the Administrative Tribunals Act and that the prayers as sought for by the petitioner can be agitated only before this Court. 3.The learned Government Pleader would, on the other hand, contend that the petitioner, who is a driver in the Industrial Training Department is essentially raising a challenge against Exhibit P12 Rules. It is contended that in the light of Section 15 of the Administrative Tribunals Act, the power of this Court to consider such an issue stands transferred to the State Administrative Tribunal and it is only on an order adverse to the petitioner's interest being passed by the Administrative Tribunal that the petitioner would have a right to approach this Court by filing an OP(KAT). Relying on the decision of the Apex Court in **Chandra Kumar's** case (supra) itself, the learned Government Pleader would contend that the court of the first instance in respect of a service matter relating to a W.P.(C).No.5568/2021 4 Government servant is the Tribunal and the Apex Court has recognised the power of judicial review as against decisions of the Administrative Tribunal. It is stated that paragraph 93 of the judgment deals with the challenge to the vires of parent legislation alone as one which the tribunal cannot consider and the challenge to provisions of the Special Rules as is made by the petitioner is specifically a matter within the jurisdiction of the Tribunal. 4.Having considered the contentions advanced, I find that the State Administrative Tribunals are established in pursuance of the constitutional mandate under Article 323A of the Constitution of India specifically for the adjudication of disputes and complaints with regard to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the State. Section 15 of the Act specifically provides for the exercise of all jurisdiction, powers and authority exercisible immediately before the appointed date, by all courts (except the Supreme Court) in relation to all service matters by the State 5 ## W.P.(C).No.5568/2021 Administrative Tribunal. If that be so, the contention of the petitioner that Section 19 restricts the petitioner's right is a fallacious argument. Since what stands transferred is the jurisdiction of this Court to consider service matters as well, the Tribunal would be perfectly within its powers in considering the prayers as are sought for by the petitioner. - 5.Further the Apex Court in **Chandra Kumar's** case has specifically considered the issue in terms of Article 323A and 226 of the Constitution of India and has held that tribunals are competent to hear the matters where the vires of statutory provisions are challenged, though they cannot act as substitutes for the High Courts and Supreme Court. The Tribunals have been held to have the power to test the vires of subordinate legislations and rules, except the vires of their parent statute. 6.It was further held that the tribunals will act as only courts of the first instance in respect of areas of law for which they are constituted. It was held that it will not be open for litigants to 6 ## W.P.(C).No.5568/2021 directly approach the High Court even in cases where the question of vires of statutory legislation except as mentioned by overlooking the jurisdiction of the Tribunal. - 7.In the above view of the matter, I am of the opinion that this writ petition is not maintainable. The petitioner has to approach the KAT at the first instance. Writ petition fails and the same is accordingly dismissed, without prejudice to the contentions of the petitioner on merits. Sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.5568/2021 7 ## **APPENDIX** ## **' - PETITIONER S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 26.11.1997 BY DEPARTMENT OF INDUSTRIAL TRAINING.** **EXHIBIT P2 TRUE COPY OF THE RECOMMENDATION DATED 17.11.2004 FROM 3RD RESPONDENT TO 2ND RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION OF PETITIONER DATED 6.4.2009 GIVEN BEFORE GOVERNMENT.** - **EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 19.10.2009 IN W.P.(C) NO.18800/2009** - **EXHIBIT P5 TRUE COPY OF THE G.O.(RT) NO.89/2010/LABOUR DATED 15.1.2010 BY 2ND RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 3.6.2011 IN W.P.(C) NO.7765/2011** - **EXHIBIT P7 TRUE COPY OF THE G.O.(MS) NO.31/2016/LABOUR DATED 5.2.2016** - **EXHIBIT P8 TRUE COPY OF THE COMMUNICATION DATED 20.5.2017 BY 3RD RESPONDENT SEEKING CLARIFICATION FROM GOVERNMENT.** - **EXHIBIT P9 TRUE COPY OF THE DRAFT OF KERALA CRAFTSMEN TRAINING SUBORDINATE SERVICE RULES 2014 FOR CTS AND COE WHICH IS NIL DATED.** - **EXHIBIT P10 TRUE COPY OF THE REPRESENTATION MADE BY PETITIONER DATED 23.2.2018 BEFORE THE 1ST RESPONDENT** **EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 10.12.2018 IN W.P.(C) NO.12394/2018.** W.P.(C).No.5568/2021 8 **EXHIBIT P12** **TRUE COPY OF THE G.O.(P) NO.136/2019/LBR DATED 21.12.2019** True copy PS to Judge