OP(KAT) No. 108 of 2017 (Z)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **& THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 17TH DAY OF AUGUST 2017/26TH SRAVANA, 1939** **OP(KAT).No. 108 of 2017 (Z)** **---------------------------(AGAINST THE ORDER IN OA.NO. 1381/2015 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 21/3/2017)** **----------------------** ## **PETITIONER(S)/RESPONDENTS 12 & 13 IN THE O.A:** **----------------------------------------------------------------------------** ## **1. P.K. RAJAN,** - **AGED 54 YEARS,S/O. P.C KUNJICHERUKKAN, ASSISTANT SUPERINTENDENT GRADE II, CENTRAL PRISON, PALLIKKUNNU P.O, KANNUR- 670 001,RESIDING AT PARAKKAL HOUSE, PUNCHAVAYAL P.O, MUNDAKKAYAM, KOTTAYAM -686 513** **2. P.B.ASOK KUMAR, AGED 52 YEARS, S/O. P. BALAKRISHNAN, ASSISTANT SUPERINTENDENT GRADE II, DISTRICT JAIL, POOJAPPURA, THIRUVANANTHAPURAM -695 012 RESIDING AT CHITHRA KAILAS, EDAKKAD SOUTH, EDAKKAD P.O,KOLLAM -691 552** **BY ADV. SRI.ELVIN PETER P.J.** ## **RESPONDENT(S)/APPLICANTS & RESPONDENTS 1 TO 11 IN THE O.A.:** ## **------------------------------------------------------------------------------------------------------** **1. BABU C.T., AGED 50 YEARS, S/O. GOPALAN C.T., DEPUTY PRISON OFFICER, SUB JAIL, QUILANDY, PIN -673 305 RESIDING AT JAIL QUARTERS, PUTHIIYARA P.O, KOZHIKODE -673 004** **2. A.SASEENDRAN,AGED 50 YEARS, S/O. GOPALAN, DEPUTY PRISON OFFICER, SUB JAIL,TIRUR, MALAPPURAM, PIN- 676 101, RESIDING AT SAYOOJYAM K. PURAM, TANUR, MALAPPURAM, PIN -678 545** **2/-** **-2-** **OP(KAT).No. 108 of 2017 (Z)** **3. RADHAKRISHNAN M., AGED 46 YEARS, S/O. APPUKUTTY, DEPUTY PRISON OFFICER, SUB JAIL PONNANI, MALAPPURAM DISTRICT, PIN -679 571, RESIDING AT MELEPPURATH HOUSE, PANTHARANGADI P.O, THIRURANGADI (VIA), MALAPPURAM DISTRICT, PIN -676 316** **4. KRISHNADAS E., AGED 45 YEARS,** - **S/O. LATE PADMANABHAN NAIR, DEPUTY PRISON OFFICER, SPECIAL SUB JAIL, KOZHIKODE PUTHIYARA P.O, PIN -673 004 RESIDING AT EDAYADATHODI HOUSE, KJARULAI P.O, VIA, NILAMBUR, MALAPPURAM DISTRICT,PIN -679 330** ## **5. STATE OF KERALA,** - **REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM -695 001** ## **6. SECRETARY TO GOVERNMENT,** - **HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM,PIN -695 001** **7. DIRECTOR GENERAL OF PRISONS & CORRECTIONAL SERVICES, PRISONS HEADQUARTERS, POOJAPPURA, THIRUVANANTHAPURAM, PIN -695 012** ## **8. ANTHRU P.A.,** - **ASSISTANT SUPERINTENDENT GRADE II, DISTRICT JAIL, KAKKADND,ERNAKULAM, PIN- 682 030** ## **9. PUSHKARAN K.P.,** - **ASSISTANT SUPERINTENDENT GRADE II, CENTRAL PRISON, PALLIKKUNNU P.O, KANNUR, PIN -670 001** **10. SALIM K.A., ASSISTANT SUPERINTENDENT GRADE II, DISTRICT JAIL, KAKKAND, ERNAKULAM, PIN- 682 030** **11. OMANAKUTTAN P., ASSISTANT SUPERINTENDENT GRADE II, CENTRAL PRISON, PALLIKUNNU P.O, KANNUR, PIN -670 001** **12. JAMES P.C., ASSISTANT SUPERINTENDET GRADE II, CENTRAL PRISON, PALLIKUNNU P.O, KANNUR, PIN -670 001** **3/-** **-3-** ## **OP(KAT).No. 108 of 2017 (Z)** **13. UNNIKRISHNAN C.M., ASSISTANT SUPERINTENDENT GRADE II, SUB JAIL, VIYYUR, THRISSUR DISTRICT, PIN -680 010** **14. P.B VENUGOPALAN, ASSISTANT SUPERINTENDENT GRADE II, CENTRAL PRISON, PALLIKUNNU P.O, KANNUR, PIN -670 001** **15. M. PRADEEP KUMAR, ASSISTANT SUPERINTENDENT GRADE II, DISTRICT JAIL, HOSDURG, KASARAGOD DISTRICT, PIN -671 121** **R1 TO R4 BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY** **SMT.N.SANTHA SRI.K.A.BALAN SRI.V.VARGHESE SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.L.ANNAPOORNA R5 TO R7 BY GOVERNMENT PLEADER SRI.ANTONY MUKKATH** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 17-08-2017, ALONG WITH OP(KAT) NO. 204/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **OP(KAT).No. 108 of 2017 (Z)** ## **----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **---------------------------------------** ## **EXHIBIT P1 TRUE COPY OF THE O.A NO.1381/2015 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** - **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 2ND RESPONDENT IN EXT.P-1 O.A** - **EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS IN EXT P-1 O.A** - **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 21-03-2017 IN O.A NO.1381/2015 OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** **RESPONDENT(S)' EXHIBITS: NIL** **-------------------------------------------** ## **/TRUE COPY/** ## **P.A.TO JUDGE** **sts** ## **P.R.RAMACHANDRA MENON & SHIRCY V., JJ** ......................................... **O.P.(KAT)NOs.108 & 204 of 2017** ................................. Dated this the 17[th] day of August, 2017 ## **O.P.(KAT)NOs.108 & 204 of 2017** ## **J U D G M E N T** ## **P.R.RAMACHANDRA MENON, J** Common nature of grievance is projected in both these Original Petitions and they are heard together in the said circumstances. 2. O.P(K.A.T)108/2017 has been filed at the instance of the respondents 12 and 13 in O.A.No.1381/2015 challenging the correctness and sustainability of Ext. P4 order passed by the Tribunal whereby Notes 1 & 2 of the Kerala Jail Subordinate Service Rules have been declared as unconstitutional and set aside, virtually allowing the O.A, granting the reliefs. The petitioners in O.P(KAT)No.204 of 2017 were actually not made parties to the proceedings, who became aggrieved of the order passed by the Tribunal as aforesaid, which made them to approach the Tribunal by filing a review application as R.A.No.10/2017. This however came to be dismissed as per O.P.(KAT)NOs.108 & 204 OF 2017 2 order dated 26/05/2017, which made them to approach this Court by filing the said Original Petition. 3. Heard the learned counsel appearing for the petitioners at length. 4. When O.P.(KAT)No.108/2017 came for consideration before this Court on 28.04.2017, the same was admitted, ordering urgent notice to the respondents, also granting interim stay as prayed for. Service to the respondents is completed, except in respect of the respondents 9, 11, 13 & 15. The learned counsel who entered appearance on behalf of the applicant in the OA submits that the relief sought for in the Original Petition is virtually directed against them and not against the respondents 9,11,13 & 15 and as such, service of notice to the said respondents need not be completed, to have the limited issue projected for consideration before this Court which is purely a question of law. As it stands so, this Court does not find it necessary to complete the service of notice to the party of respondents as arrayed in O.P(KAT)No.204 of 2017 as well, except respondents nos.1 to 4 who are the applicants in the O.A, who are already represented by Sri. Varghese, the learned counsel appearing on the behalf of the O.P.(KAT)NOs.108 & 204 OF 2017 3 ## same parties in the connected Original Petition. ## 5. The prayers raised in the OA are in the following terms. _“ a) declare that the Notes 1 and 2 in Rule 1 of the Kerala Jail Subordinate Service Special Rules 1959, substituted as per the Kerala Jail Subordinate Service (Amendment) Special Rules 2012 are unreasonable, ultra vires, unconstitutional, void and unenforceable as against the applicants whose seniority in the category of Deputy Prison Officer (Head Warder) is regulated by the Kerala Jail Subordinate Service Special Rules 1959, read with Annexure-A1 amendment thereto._ _b) set aside Annexure-A5 seniority list to the extent the applicants' seniority in the category of Deputy Prison Officer (Head Warder) as reflected in Annexure-A3 is changed._ _c) set aside Annexure - A6 to the extent the respondents 4 to 13 are promoted to the category of Assistant Supertintendent Grade-II (Assistant Jailor Grade-II) before promoting the applicants to that category.”_ _d) Direct the respondents 1 to 3 not to enforce Annexure A7 amendment to the Kerala Jail Subordinate Service Special Rules 1959 against the applicants in the matter of State-wise seniority in the category of Deputy Prison Officer (Head Warder) for all purposes including promotion to the higher category of Assistant Supertintendent Grade-II (Assistant Jailor Grade-II )._ _e) direct the respondents 1 to 3 to promote the applicants to the category of Assistant Superintendent Grade-II (Assistant Jailor Grade-II) with retrospective effect from 20.7.2015, the date on which the respondents 4 to 13 were promoted to that category and place them seniors to the respondents 4 to 13 in the category of Assistant Superintendent Grade-II with all consequential benefits including back wages within a time limit to be fixed by this Hon'ble Court and_ _(f) grant such other reliefs as this Hon'ble Tribunal deems fit and proper in the circumstances of the case including the costs of this Original Application. “_ ## 6. Obviously, the first prayer itself is with regard to the constitutional validity of 'Notes 1 and 2' of the Kerala Jail Subordinate Service Special Rules and this has been answered O.P.(KAT)NOs.108 & 204 OF 2017 4 by the Tribunal accepting the challenge and virtually allowing the OA, setting aside the 'Notes' forming part of the Rules. The crux of the contention raised by the petitioners is that, if at all the constitutional validity of a Rule is challenged, it is obligatory for the Tribunal, (by virtue of the mandate under Sec.5(6)of the Administrative Tribunals Act) that the same be heard by a 'Division Bench'. The law stands declared in crystalclear terms by a Constitution Bench of the Apex Court (7 judges) as per the decision reported in **L.Chandra Kumar v. Union of India and others (AIR 1997 SC 1125)** , para 98 of which reads as below. _“98. Since we have analysed the issue of the constitutional validity of Section 5(6) of the Act at length, we may now pronounce our opinion on this aspect. Though the vires of the provision was not in question in, Dr.Mahabal Ram's case, (1994 (2)SCC 401), we believe that the approach adopted in that case, the relevant portion of which has been extracted in the first part of this judgment, is correct since it harmoniously resolves the manner in which Sections 5(2) and 5(6) can operate together. We wish to make it clear that where a question involving the interpretation of a statutory provision or rule in relation to the Constitution arises for the consideration of a single Member Bench of the Administrative Tribunal, the proviso to Section 5(6) will automatically apply and the Chairman or the Member concerned shall refer the matter to a Bench consisiting of at least two Members, one of whom must be a Judicial Member. This will ensure that questions involving the vires of a statutory provision or rule will never arise for adjudication before a single Member Bench or a bench which does not consist of a Judicial Member. So construed, Section 5 (6) will no longer be susceptible to charges of unconstitutionality. ”_ ## 7. Coming to the order under challenge ie., Ext.P4, it has O.P.(KAT)NOs.108 & 204 OF 2017 5 been passed by a 'Single Member' of the Tribunal and as such, this Court does not require any second thought to hold that the same is contrary to the law declared by the Constitutional Bench of the Apex Court as per the decision cited above. The position in this regard is fairly conceded by the learned counsel appearing for the applicants in the O.A. 8. In the said circumstances, the matter requires to be reconsidered by a proper bench of the Tribunal, to be constituted in terms of the verdict passed by the Supreme Court in AIR 1997 SC 1125 (cited supra). Accordingly, Ext.P4 order passed by the Tribunal in O.A.No.1381 of 2015 stands set aside and the matter is remitted to the Tribunal for fresh consideration by an appropriate Bench, to be in conformity with the law declared by the Supreme Court as aforesaid. As a natural consequence, the order passed by the Tribunal on 26.5.2017 in Review Application No.10/2017, which is subject to challenge in O.A.No.1381 of 2015 also loses its significance as the said order cannot survive independently. It will be open for the petitioners in O.P(KAT)NO.204/2017 to get themselves impleaded by filing appropriate proceedings in the OA. The issue is required to be finalised in accordance with law, after O.P.(KAT)NOs.108 & 204 OF 2017 6 affording an opportunity of hearing to both the sides to substantiate their contentions, also by filing additional pleadings if any, to have an exhaustive analysis of the factual and legal position. The OP stands allowed. It is also made clear that we are not expressing anything with regard to the merit involved. Considering the nature of grievance projected, it will be only appropriate, if the Tribunal passes final orders in the OA as expeditiously as possible. Sd/- **P.R.RAMACHANDRA MENON JUDGE** Sd/- **SHIRCY V. JUDGE** IAP