O.P.(KAT) No.124 of 2014 (Z)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE** **MONDAY, THE 4TH DAY OF JANUARY 2016/14TH POUSHA, 1937** **OP(KAT).No. 124 of 2014 (Z) ----------------------------** **AGAINST THE JUDGMENT IN TA 1119/2012 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 13-02-2014** **PETITIONERS:-:** **-------------------** **1. S.PRABHA, AGED 45 YEARS W/O.SIVARAMAN PILLAI STORE SUPERINTENDENT [HEAD CLERK] DRUGS TESTING LABORATORY THIRUVANANTHAPURAM - 695 004, RESIDING AT T.C.11/796 EARICKAL HOUSE, PATTOM P.O. THIRUVANANTHAPURAM - 695 004.** **2. BEENAKUMARI P.N., AGED 54 YEARS U.D.CLERK, O/O. THE ASSISTNAT DRUGS CONTROLLER ERNAKULAM, KAKKANAD RESIDING AT PULINTHANATHUKUDI HOUSE, THAMMANIMATTAM RAMAMANGALAM P.O., ERNAKULAM DISTRICT - 686 663.** **3. THAMPAN P., AGED 47 YEARS SENIOR CLERK OFFICE OF THE ASSISTANT DRUGS CONTROLLER, KANNUR SOUTH BAZAR, KAKKAD ROAD, KANNUR - 2 RESIDING AT KANHILERY, CHENKODE P.O., SREEKANDAPURAM KANNUR - 670 663.** **BY ADVS.SRI.P.SANKARANKUTTY NAIR SRI.K.SANDESH RAJA KUM.VIDYA MENON SRI.VENU MENON** **RESPONDENTS:-: ---------------------** **1. S.A.KAREEM, U.D.CLERK, OFFICE OF THE ASSISTANT DRUGS CONTROLLER KOLLAM - 691 001.** **2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT HEALTH & FAMILY WELFARE DEPARTMENT GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM - 695 001.** **3. SEETHA DEVI T., U.D.CLERK, ASSISTANT DRUGS CONTROLLER KOLLAM - 691 001, RESIDING AT RAJ BHAVAN CHENGAMANAD P.O., KOTTARAKKARA, KOLLAM - 691 557.** ## **OP(KAT).No. 124 of 2014 (Z)** **4. THE DRUGS CONTROLLER, STATE OF KERALA, THIRUVANANTHAPURAM - 695 037.** **5. THE ASSISTANT DRUGS CONTROLLER, MANNANIA COMPLEX, CHINNAKKADA, KOLLAM - 690 001.** **6. DAYANIDHI C.M., U.D.CLERK, OFFICE OF THE DRUGS INSPECTOR CIVIL STATION, MALAPPURAM - 676 505 RESIDING AT KOUSALYA BHAVAN, CHETTIPADI P.O. PARAPPANANGADI, MALAPPURAM - 676 319.** **R3 BY ADV. SMT.DAISY A.PHILIPOSE R1 BY ADV. SRI.B.RAGUNATHAN R1 BY ADV. SRI.M.SALIM R1 BY ADV. SRI.G.GOPALAKRISHNA PILLAI R1 BY ADV. SRI.R.SRINATH R1 BY ADV. SRI.V.M.JACOB R BY GOVERNMENT PLEADER SRI JOSEPH GEORGE** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 04-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **kkj** ## **OP(KAT).No. 124 of 2014 (Z)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **ANNEXURE A1: TRUE COPY OF THE TRANSFER APPLICATION NO.1119/2012 OF W.P.(C) NO.670/2006** **EXHIBIT P1 IN T.A. TRUE COPY OF THE ORDER DATED 10.04.2000 OF THE 2ND RESPONDENT.** **EXHIBIT P2 IN T.A. TRUE COPY OF THE ORDER DATED 18.03.1996 OF THE 2ND RESPONDENT.** **EXHIBIT P3 IN T.A. TRUE COPY OF THE ORDER DATED 12.07.1996 OF THE 2ND RESPONDENT.** **EXHIBIT P4 IN T.A. TRUE COPY OF THE PROVISIONAL SENIORITY LIST OF UD CLERKS AS ON 01.01.2004 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P5 IN T.A. TRUE COPY OF THE LETTER NO.E1-6636/DATED 27.08.2005 OF THE 2ND RESPONDENT ALONG WITH THE REVISED SENIORITY LIST OF UD CLERKS AS ON 01.01.2004.** **EXHIBIT P6 IN T.A. TRUE COPY OF THE REVISED FINAL SENIORITY LIST OF UD CLERKS AS ON 01.01.2003, ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P7 IN T.A. TRUE COPY OF THE REPRESENTATION DATED 20.09.2005.** **EXHIBIT P8 IN T.A. TRUE COPY OF THE JUDGMENT DATED 05.11.2005 IN W.P. (C)NO.30908/2005-D.** **EXHIBIT P9 IN T.A. TRUE COPY OF THE REPRESENTATION DATED 25.11.2005.** **EXHIBIT P10 IN T.A. TRUE COPY OF THE LETTER DATED 30.11.2005 OF THE 2ND RESPONDENT.** **ANNEXURE A2: TRUE COPY OF THE REPLY AFFIDAVIT DATED 29.09.2012 FILED BY THE GOVERNMENT** **ANEEXURE A3: TRUE COPY OF THE ORDER OF THE TRIBUNAL IN T.A.NO.1119/2012 DATED 13.02.2014** **RESPONDENT(S)' EXHIBITS** **-------------------------** ## **NIL** **// TRUE COPY //** **PA TO JUDGE** ## **K.SURENDRA MOHAN & SHAJI P. CHALY, JJ.** ## **--------------------------------------------O.P.(KAT) No.124 of 2014 ---------------------------------------------Dated this the 4[th] day of January, 2016** ## **J U D G M E N T** ## Surendra Mohan, J. This Original Petition is filed challenging Annexure A3 order of the Kerala Administrative Tribunal ('KAT' for short) in T.A.No.1119 of 2012. The petitioners were not parties to the Original Petition. They have challenged the order of the KAT complaining that the relief granted, detrimentally affects their rights. Therefore, according to them, they ought to have been impleaded as parties to the application before the Kerala Administrative Tribunal. Since the order that is under challenge was passed without them on party array, the said order is unsustainable and liable to be set aside, being violative of the principles of natural justice, it is contended. They therefore seek the issue of appropriate directions setting aside Annexure A3. 2. This Original Petition was admitted on ## -:2:- ## O.P.(KAT) No.124 of 2014 18.03.2014. Since the petitioners were not parties before the KAT, the matter was heard on the question of admission and a considered order was passed by another Division Bench of this Court. It has been found that, the petitioners had substantiated their claim and that they were entitled to be heard further in the Original Petition. In view of the prima facie case made out by them, an interlocutory order was also granted as prayed for. It was further ordered that, in the event of the first respondent representing before the authorities seeking a posting back to Thiruvananthapuram District, a posting could be granted to him only on the loss of his seniority. The said interim order is still in force. 3. The first respondent is the applicant before the KAT. He had been recruited as a Lower Division (L.D.) Clerk in the Drugs Control Department on 14.09.1990 at Thiruvananthapuram District. Initially he was appointed in the Fire Force Divisional Office, Thiruvananthapuram. He joined duty on 08.10.1990. subsequently, he was thrown out ## -:3:- ## O.P.(KAT) No.124 of 2014 for want of vacancies on 04.07.1991. Later on, he was advised by the Public Service Commission again on 01.08.1991 to the Drugs Control Department. While so working at Thiruvananthapuram, he had requested for being transferred to Kollam. In the above circumstances, the Government created a Zonal Office of the Drugs Control Department at Kollam. Thereupon, the first respondent requested for a transfer to one of the vacancies of L.D.Clerks in the said Zonal Office. His request was accepted and he was transferred. Accordingly, he was relieved from Thiruvananthapuram on 12.07.1996 and he jointed duty at Kollam at 19.07.1996. 4. While so, Exhibit P5 provisional Seniority List of L.D.Clerks was published by the Government on 27.08.2005. In the list, he was shown as rank No.34. Thereupon, the first respondent preferred a representation objecting to his ranking in the provisional Seniority list. Since the same was not considered, he had approached this Court by filing WP ## -:4:- ## O.P.(KAT) No.124 of 2014 (C) No.30908 of 2005. The same was disposed of by Exhibit P8 judgment dated 05.11.2005 directing that his objections be considered along with the objections filed by other aggrieved or interested persons. Accordingly, the same was considered and rejected by Exhibit P10 proceedings in Annexure A1 dated 30.11.2005. As per Exhibit P10, it is stated that the transfer of the first respondent to Kollam was on his own application and not in public interest. Therefore, he was entitled to get seniority in the cadre of L.D.Clerks in Kollam District only with effect from 19.06.1996. Consequently, his date of promotion as an Upper Division (U.D.) Clerk was also modified. The first respondent aggrieved by Exhibit P10, approached this Court by filing W.P.(C) No.670 of 2006. The same was later on transferred to the KAT and renumbered as T.A.No.1119 of 2012. 5. The KAT considered the contentions of the first respondent and has found that, he had not been informed at the time of his transfer to Kollam that he would lose his ## -:5:- ## O.P.(KAT) No.124 of 2014 seniority upon such transfer. No undertaking agreeing for such loss of seniority was also taken from him. His transfer was ordered as a routine request for transfer. In view of the above, the KAT found that he should be given a chance to either go back to his parent District or to continue at Kollam with loss of seniority. He has been given a chance to decide, in which district he would like to continue. It is made clear that, if he chooses to go back to Thiruvananthapuram, he would not lose his seniority. But, if he chooses to remain at Kollam, he would be treated as the junior most in the cadre of L.D.Clerks on the date of the order of his transfer, Exhibit P2. To enable the authorities to pass necessary orders, Exhibit P10 in Annexure A1 has been quashed. The contention of the petitioners is that, if the first respondent chooses to come back to Thiruvananthapuram, they would be affected. In view of the above, it is contended that, the petitioners ought to have been impleaded as parties to the application filed by the first respondent before the KAT. For ## -:6:- ## O.P.(KAT) No.124 of 2014 the above reasons, they seek the interference of this Court for setting aside Annexure A3 order of the KAT. 6. The contentions of the petitioners are opposed by the first respondent pointing out that, even the present Original Petition is not maintainable at their instance, it has been held by this Court as well as the Honourable Supreme Court that, persons who were not parties before the Administrative Tribunal were not entitled to move this Court under Article 227 of the Constitution against orders passed by such Tribunals. Their remedy is to first seek for a review thereof before the Tribunal itself. In the present case, the said course not having been adopted, this Original Petition is submitted to be not maintainable. 7. On the merits, the case of the first respondent is that, though he had requested for a transfer to Kollam, the order transferring him to Kollam was passed in the routine manner, in public interest, without reference to his request. Therefore, he was granted joining time as well as other ## -:7:- ## O.P.(KAT) No.124 of 2014 benefits upon such transfer. In view of the above, it is contended that, he would not lose his seniority at Kollam. He therefore submits that, the order of the KAT restoring his seniority cannot be found fault with. 8. The stand of the Government is that, the transfer of the first respondent was on the basis of his request. He was a person who had been recruited to Thiruvananthapuram District. Therefore, in view of Rule 27 of the Kerala State & Subordinate Service Rules, 1958 (KS & SSR for short), the seniority of the first respondent shall be determined with reference to the date on which he joined duty in Kollam District. Though his order of transfer does not make any reference to the request made by him, his transfer was actually made only on the basis of his request, it is contended. The above being the position, it is contended that, the order of the KAT does not require to be interfered with. 9. We have heard Advocate Sandhesh Raja who -:8:- ## O.P.(KAT) No.124 of 2014 appears for the petitioners, Sri.B.Reghunathan who appears for the first respondent as well as the learned Government Pleader at length. We have considered the contentions advanced before us, anxiously. 10. The first question that requires to be considered is whether this Original Petition is maintainable at the instance of the petitioners herein? It is an admitted fact that the petitioners were not parties before the KAT. Their case is that, they are aggrieved by the order of the KAT and therefore they ought to have been made parties to the application filed by the first respondent. Since they were not made parties before the KAT, they were not aware of Annexure A3 order. They have not filed any petition to review the order of the KAT for the reason that, the said remedy has become barred. The counsel for the first respondent on the other hand contends that, the remedy of the petitioners is to seek a review of the Annexure A3 order. Since they have not sought a review of ## -:9:- ## O.P.(KAT) No.124 of 2014 the order, it is contended that this Original Petition is not maintainable. 11. Section 22 of the Administrative Tribunal Act, 1985 reads as under:- **22.Procedure and powers of Tribunals.--** (1) A Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908(5 of 1908), but shall be guided by the principles of natural justice and subject to the other provisions of this Act and of any rules made by the Central Government, the Tribunal shall have power to regulate its own procedure including the fixing of places and times of its inquiry and deciding whether to sit in public or in private. (2) A tribunal shall decide every application made to it as expeditiously as possible and ordinarily every application shall be decided on a perusal of documents and written representations and after hearing such oral arguments as may be advanced. (3) A Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit, in respect of the following matters, namely:- - (a) Summoning and enforcing the attendance of any person and examining him on oath; - (b) requiring the discovery and production of documents; - (c ) receiving evidence on affidavits; (d) subject to the provisions of sections 123 and ## -:10:- ## O.P.(KAT) No.124 of 2014 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office; - (e) issuing commissions for the examination of witnesses or, documents; - (f) reviewing its decisions; - (g) dismissing a representation for default or deciding it ex parte; - (h) setting aside any order of dismissal of any representation for default or any order passed by it ex parte; and - (i) any other matter which may be prescribed by the Central Government. 12. Section 22 (3)(f) specifically confers a power of review on the KAT. However, the above provision has to be read along with Rule 21 of the Kerala Administrative Tribunal (Procedure), Rules, 2010, which reads as under:- **21. Review of application to be filed within thirty days.--** No application for review shall be entertained unless it is filed within thirty days from the date of the order of which the review is sought. The combined effect of the above provisions is that, though the KAT has the power to review its orders, no such application could be entertained “unless it is filed within thirty days from the date of the order of which review is sought”. In other words, an application for review is ## -:11:- ## O.P.(KAT) No.124 of 2014 maintainable only if it is filed within a period of thirty days of the date of the order. According to the petitioners, since they were not parties before the KAT, they were not aware of the order of the KAT and therefore, their remedy of filing a review petition has become barred. The petitioners are justified in their submissions, in view of the wording of the above provisions. Therefore, this is a case in which the remedy of filing a review application is no longer available to them. They cannot be found fault with for not having been filed a review application within time for the reason that they were not parties to the said proceedings and no knowledge thereof could be attributed to them for the said reason. In the above circumstances, it has to be examined whether they should be rendered remedyless by nonsuiting them. 13. The counsel for the respondent has placed reliance on the decision of the Supreme Court in **Rajeev Kumar v. Hemraj Singh Chauhan** {(2010) 4 SCC 554}. In ## -:12:- ## O.P.(KAT) No.124 of 2014 the said case, applications for impleading were filed by some non State Civil Service Officers for getting themselves impleaded as respondents in Writ Petitions filed by Hemraj Singh Chauhan and others before the High Court of New Delhi. The impleading petitions were allowed and they were permitted to come on the party array. The persons who had got themselves impleaded were not parties before the CAT. The CAT had declined relief to the applicants, which was under challenge in the Writ Petition before the High Court. The High Court set aside the judgment of the CAT. The Supreme Court has considered the question as to whether they were entitled to get themselves impleaded for the first time before the High Court, since they had not been parties before the CAT. It has been held in the said decision that, it is the CAT whose jurisdiction that should be invoked by the applicants first and that they should not be permitted to convert High Court into a Court of original jurisdiction. In other words, it was for the applicants to have moved the -:13:- ## O.P.(KAT) No.124 of 2014 CAT on the original side first, before approaching the High Court. 14. In **Girish Babu M.B. v. Pavithran T.T.V.** {2013 (3) KHC 165 (DB)}, another Division Bench of this Court has considered a similar question. In the said case, certain persons had moved this Court claiming that they were holders of National Trade Certificate or National Apprenticeship Certificate in the concerned trade for being considered for appointment to the category of Workshop Attender in terms of the Special Rules for the Kerala Craftsmen Training Subordinates Service. They contended that, the respondents did not possess the said qualification. However, the said persons had obtained an order from the KAT to the effect that a Diploma in the concerned branch was equivalent to the Trade Certificate or Apprenticeship Certificate referred to above. It was contended that they were aggrieved by the order of the Tribunal. Following the dictum in **Rajeev Kumar v. Hemraj Singh Chauhan** ## -:14:- ## O.P.(KAT) No.124 of 2014 (Supra), the Division Bench of this Court has held that, it was for the petitioner to have invoked the jurisdiction of the KAT first before approaching this Court. 15. It is clear from the narration of the facts in the present case that, the situation here is different. While in the case before the Supreme Court as well as before this Court in **Girish Babu M.B. v. Pavithran T.T.V.** (supra), persons who were entitled to seek reliefs from the Tribunal wanted this Court to grant them the said relief, considering the merits of their claims. In the present case, the complaint is that, an order detrimental to their interests and prejudicial to their seniority has been passed by the KAT behind their back and without them on the party array. The first respondent having invoked the jurisdiction of the KAT without impleading the parties who were likely to be affected, was not entitled to contend that this Original Petition is not maintainable. Since they were not parties, they were also not in a position to invoke their remedy of -:15:- ## O.P.(KAT) No.124 of 2014 filing a Review Petition before the Tribunal, it is contended. 16. In the facts and circumstances of the present case therefore, it is worth noticing that, the first respondent had made only the State and other authorities parties thereto. He had filed the writ petition challenging the rejection of objections submitted by him to his seniority. It cannot be disputed that, others presently placed above him would be adversely affected if his objections were accepted. Therefore, it was necessary for the affected parties to have been impleaded in his application. According to the petitioners, they are the persons adversely affected by the order of the KAT passed at the instance of the first respondent. The said order, prejudicial to their interests has been passed behind their back. Therefore, this is a case in which there has been violation of the principles of natural justice. It is trite that, an order passed in violation of the principles of natural justice is unsustainable and liable to be set aside. Any such order is also amenable to challenge ## -:16:- ## O.P.(KAT) No.124 of 2014 before this Court under Article 226 and 227 of the Constitution. For the above reasons, it is held that this Original Petition is maintainable. 17. Annexure A3 order of the Kerala Administrative Tribunal is unsustainable and liable to be set aside for other reasons also. A perusal of the prayers in the application filed by the first respondent before the Tribunal shows that the following reliefs had been sought for. i)Issue a writ of certiorari or other appropriate writ, direction or order, calling from the records leading to Exts.P5 and P10 and quash the same (Ext.P5 to the extent it affects the seniority and rank of the petitioner); ii)Issue a writ of mandamus or other appropriate writ, direction or order to the 2[nd] respondent to fix the seniority and rank of the petitioner with effect from 14.09.1990 and 20.03.2000, in the posts of L.D.Clerk and U.D.Clerk respectively; iii)grant such other orders which this Hon'ble Court may deem fit and proper in the circumstances of the case and iv) award the costs of this petition to the petitioner. ## -:17:- ## O.P.(KAT) No.124 of 2014 18. As per the first relief sought, Exhibit P5 provisional seniority list as well as Exhibit P10 order are sought to be quashed. A direction to fix the seniority of the first respondent has also been sought for both in the cadre of L.D.Clerk as well as U.D.Clerk. In the nature of the reliefs sought, it was only appropriate that, persons who were likely to be affected by the grant of such reliefs were made parties thereto. The necessity of impleading all affected parties has been emphasized by the Apex Court in **Siraj v. High Court of Kerala** [2006 (2) KLT 923 (SC)]. The issue has been concluded by the Apex Court in paragraph 62 thereof, as follows:- The Writ Petitions have also to fall on the ground of absence of necessary parties in the party array. Though the appellants/petitioners contend that they are only challenging the list to a limited extent, acceptance of their contention will result in a total re-arrangement of the select list. The candidates will be displaced from their present ranks, besides some of them may also be out of the select list of 70. It was, therefore, imperative that all the candidates in the select list should have been impleaded as parties to the Writ Petitions as otherwise ## -:18:- ## O.P.(KAT) No.124 of 2014 they will be affected without being heard. Publication in the newspaper does not cure this defect. There are only a specified definite number of candidates who had to be impleaded namely, 70. It is not as if there are a large unspecified number of people to be affected. In such cases, resort cannot be made to R.148 of the Kerala High Court Rules. That Rule can be applied only when very large number of candidates are involved and it may be not able to pin point those candidates with details. In our view, the Writ Petitions have to fail for non-jointer of necessary parties also. 19. A Full Bench of this Court has also laid down the above proposition authoritatively in **Ravidas v. Public Service Commission** [2009(2) KLT 295 (FB)] in paragraph 43 as follows:- The petitioners have not impleaded any of the selected candidates as parties to these Writ Petitions. If the petitioners' contentions are accepted it would result in a total rearrangement of the ranked list, leading to displacement of candidates already recruited and in service since the year 2005. Though the petitioner in W.P. (C) No.11916 of 2005 has impleaded the third respondent in that Writ Petition in a representative capacity and has taken out notice of the Writ Petition by paper publication in the Newspaper, the third respondent has been impleaded only to represent candidates who do not ## -:19:- ## O.P.(KAT) No.124 of 2014 possesses the qualifications prescribed for the post, on the allegation that he is not qualified. The Apex Court has in Siraj v. High Court of Kerala (supra) held in similar circumstances that it is imperative that all the selected candidates are joined as parties to the Writ Petition and that publication of the notice of the Writ Petition in the newspaper does not cure the defect. It was held that R.148 of the Kerala High Court Rules can be applied only when a large and unspecified number of candidates are involved. Therefore, for that reason also, no relief can be granted in W.P.(C) No.11916 of 2005 and W.P.(C) No.23272 of 2006. 20. In view of the above authoritative pronouncements, there cannot be any doubt regarding the proposition that, it was necessary for the first respondent to have brought on party array, all persons who were likely to have been affected by the change of seniority position that was sought for by him. The KAT erred in proceeding to finally dispose of the application, without insisting on all affected persons being brought on party array. Therefore, it is only appropriate that the issue is adjudicated afresh by the KAT after bringing on record, all persons who are likely to be affected by the change of seniority position that is -:20:- ## O.P.(KAT) No.124 of 2014 sought for by the first respondent. 21. In the above view of the matter, it is held that Annexure A3 order of the KAT is unsustainable having been passed without the persons who are likely to affected on the party array. The principles of natural justice requires that all such persons are brought on record and provided with an opportunity to contest the claim of the first respondent. The KAT being the authority conferred with the original jurisdiction to decide the above issue, we feel that it is necessary to remand the matter to the said authority for fresh consideration, in accordance with law. In the above view of the matter, we do not consider it necessary or expedient to consider the legitimacy of the claim of the first respondent for restoration of his seniority position, after setting aside the impugned order rejecting his objections to Exhibit P5 seniority list. The said question would have to be considered by the KAT after hearing the petitioners herein as well as other persons who are likely to be affected. All ## -:21:- ## O.P.(KAT) No.124 of 2014 the said questions are left open. For the foregoing reasons, this Original petition is allowed. Annexure A3 order of the Kerala Administrsative Tribunal dated 13.02.2014 in T.A.No.1119 of 2012 is set aside. The KAT shall consider the application afresh, after permitting the petitioners herein as well as any others who may be affected by the order that is likely to be passed therein should the first respondent succeed, to come or be brought on the party array. Sd/- **K.SURENDRA MOHAN JUDGE** Sd/- **SHAJI P.CHALY JUDGE** kkj