Santhosh S. T v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.K.JAYASANKARAN NAMBIAR** ## **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **MONDAY, THE 6[TH] DAY OF JUNE 2022/16TH JYAISHTA, 1944** **O.P(KAT).NO.102 OF 2022** **AGAINST THE ORDER DATED 21.03.2022 IN O.A.NO.443/2022 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/PETITIONER:** **SANTHOSH. S. T AGED 39 YEARS S/O.STEEPHEN.C., TC 6/2059, SLRA-52, PULIYANAPURAM ROAD, ELIPODE,VATTIYOORKAVU, THIRUVANANTHAPURAM, NOW EMPLOYED AS ASSISTANT EXECUTIVE ENGINEER, KERALA WATER AUTHORITY AT P H SUB DIVISION, KALPETTA, PIN - 673121** **BY ADV.SRI.R.S.KALKURA BY ADV.SRI.HARISH GOPINATH BY SRI.P.NANDAKUMAR, AMICUS CURIAE** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM- 695001** - **2 THE PRINCIPAL SECRETARY PERSONNEL & ADMINISTRATIVE REFORMS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001** **O.P.(KAT).NO.102/2022 :: 2 ::** - **3 KERALA PUBLIC SERVICE COMMISSION PATTOM PALACE P.O., THIRUVANANTHAPURAM, PIN-695004, REPRESENTED BY ITS SECRETARY.** **BY SRI.B.UNNIKRISHNA KAIMAL, GOVERNMENT PLEADER BY SRI.P.C.SASIDHARAN, SC, KPSC** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 06.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.P.(KAT).NO.102/2022 :: 3 ::** ## **J U D G M E N T** ## **A.K. Jayasankaran Nambiar, J.** This O.P.(KAT) is preferred challenging the order dated 21.3.2022 of the Kerala Administrative Tribunal [KAT] in O.A.No.443/2022. By the impugned order, the KAT dismissed the O.A. filed by the petitioner as not maintainable, after finding that the disputes in the O.A. related to service of an employee working in Kerala Water Authority [KWA], and on the further ground that the applicant was challenging the Kerala Administrative Service Rules, 2018 as a representative of the public or as an aspirant to the post, and that issue would not fall within the specified categories enumerated under Section 15 of the Administrative Tribunals Act, 1985. 2. We have heard Sri.Harish Gopinath, the learned counsel for the petitioner, Sri.B.Unnikrishna Kaimal, the learned Government Pleader for respondents 1 and 2, and Sri.P.C.Sasidharan, the learned Standing counsel for the 3[rd] respondent Kerala Public Service Commission. We have also heard Sri.P.Nandakumar, who was **O.P.(KAT).NO.102/2022 :: 4 ::** appointed as an Amicus Curiae to assist the Court. 3. On a consideration of the factual averments in the O.A. as also in the present O.P(KAT), we find that the grievance of the petitioner, who is working as an Assistant Executive Engineer in the KWA, is essentially as regards his inability to apply for recruitment into the Kerala Administrative Service. The recruitment notification issued in that regard outlined the various modes of recruitment into the Kerala Administrative Service, and while there was a specific provision for by-transfer recruitment from regular employees or approved probationers in any Government Department in the State, the petitioner could not seek recruitment under the said stream on account of the KWA being an autonomous body/State Public Sector Undertaking and not expressly mentioned in the Notification or the Schedule thereto. The Tribunal that considered the O.A. did not go into the merits of the challenge against the Rules but sought to dismiss the O.A. on the ground of maintainability as noticed above. In the Original Petition, the petitioner impugns the finding of the Tribunal as regards maintainability of the O.A. 4. On a perusal of Section 15 of the Administrative Tribunals Act, 1985, we find that the jurisdiction, powers and authority of the State Administrative Tribunals have been delineated therein and it is **O.P.(KAT).NO.102/2022 :: 5 ::** expressly stated that the Administrative Tribunal for a State shall exercise all the jurisdiction, powers and authority exercisable by all Courts (except the Supreme Court) in relation _inter alia_ to - “( _a_ ) recruitment, and matters concerning recruitment, to any civil service of the State or to any civil post under the State; ( _b_ ) all service matters concerning a person [not being a person referred to in clause ( _c_ ) of this sub-section (1) or a member, person or civilian referred to in clause ( _b_ ) of sub-section (1) of section 14] appointed to any civil service of the State or any civil post under the State and pertaining to the service of such person in connection with the affairs of the State or of any local or other authority under the control of the State Government or of any corporation or society owned or controlled by the State Government. ( _c_ ) all service matters pertaining to service in connection with the affairs of the State concerning a person appointed to any service or post referred to in clause ( _b_ ), being a person whose services have been placed by any such local or other authority or corporation or society or other body as is controlled or owned by the State Government, at the disposal of the State Government for such appointment.” 5. When we read the above statutory provisions against the backdrop of the decisions of the Supreme Court referred to us by the learned Amicus Curiae, and in particular, the decision in **Chandrakumar v. Union of India - [1997 KHC 503]** , we find that an interpretation of the statutory provisions has to be guided by the the factual circumstances that led to the creation of Administrative Tribunals pursuant to an amendment of the Constitution. The Administrative Tribunals were established through a specific **O.P.(KAT).NO.102/2022 :: 6 ::** Parliamentary legislation for the purpose of discharging the functions that were earlier exercised by the High Courts under Article 226 of the Constitution of India in relation to specified service matters. This being the case, the words 'recruitment', and 'matters concerning the recruitment to any civil service of the State or any civil post under the State' has to receive a liberal interpretation so as to encompass all aspects of recruitment, including the inviting of applications through the notification concerned and the consideration of those applications. We therefore find that, in the instant case, inasmuch as the petitioner was challenging the Kerala Administrative Service Rules, 2018, to the extent it excluded persons like him working in a State Public Sector Undertaking from consideration for recruitment under Stream 2 of the Notification, it was a matter that fell squarely within the jurisdiction of the State Administrative Tribunal in terms of Section 15(1)( _a_ ) of the Administrative Tribunals Act, 1985. That apart, we also find that the petitioner was an aspirant to a post under the Kerala Administrative Service, which was regulated by the Kerala Administrative Service Rules, 2018. In the absence of a State Administrative Tribunal, to adjudicate on the legality of such exclusion, the matter would have reached this Court through a writ petition filed under Article 226 of the Constitution of India. As already noted, in relation to specified service matters, it was the jurisdiction of this Court under Article **O.P.(KAT).NO.102/2022 :: 7 ::** 226 of the Constitution of India, that was carved out for adjudication by the Tribunals constituted under the Administrative Tribunals Act, 1985. We are therefore of the view that in any view of the matter, the Tribunal could not have abdicated its jurisdiction in the matter. As a matter of fact, we find that a similar view was taken by a learned Single Judge of this Court in the judgment dated 12.4.2018 in W.P.(C).No.10460/2018, and the said judgment too has attained finality. The order of the Tribunal impugned in this O.P.(KAT) cannot be legally sustained, and we have no hesitation to set aside the same and observe that the State Administrative Tribunal alone has the jurisdiction to consider the matter on merits. 6. That being said, we find that in the instant case, the issue on merits has already been considered by a Division Bench of this Court in **Sujith v. State of Kerala - [2020 (4) KLT 734]** . In the said judgment, this Court found that there was nothing wrong in the Government formulating a policy to create a service from among the persons who are employed in the Government department and excluding persons from Public Sector Undertakings and other sources. It was in particular pointed out that it was not for the Court to substitute its wisdom in the place of the Administrator. The said decision was arrived at after referring to a plethora of judgments of the Supreme Court on the aspect of judicial review over policy **O.P.(KAT).NO.102/2022 :: 8 ::** decisions of the Government. Thus, in view of the Division Bench judgment of this Court referred above, which covers the case of the petitioner in the instant case as well, we do not see it necessary to remand the matter to the Administrative Tribunal at this stage. While holding that the impugned order of the Tribunal that found that the O.A. was not maintainable before it is legally unsustainable, we also deem it appropriate to dismiss the O.A. on merits in the light of the Division Bench judgment covering the issue. Before parting with this case, we express our appreciation for the erudite assistance rendered by Sri.P.Nandakumar, the learned Amicus Curiae. The O.P.(KAT) is disposed as above. **Sd/A.K.JAYASANKARAN NAMBIAR** **JUDGE** **Sd/MOHAMMED NIAS C.P. JUDGE** **prp/7/6/22** **O.P.(KAT).NO.102/2022 :: 9 ::** ## **APPENDIX OF O.P(KAT).NO.102/2022** ## **PETITIONER'S ANNEXURES:** **Annexure A1 TRUE COPY OF THE GAZETTE NOTIFICATION NO:17926/E2(A)/2020/KWA(1) DATED 23/02/2021** - **Annexure A2 TRUE COPY OF PROCEEDINGS NO:3568/ E2(A)/2020/KWA DATED 31/12/2021 OF THE CHIEF ENGINEER KERALA WATER AUTHORITY WITH REGARD TO THE PROMOTION OF THE PETITIONER TO THE POST OF ASSISTANT ENGINEER.** - **Annexure A3 TRUE COPY OF THE CABINET MEETING OF THE 1ST RESPONDENT DECISION HELD IN THE MEETING ON 28.12.2016.** - **Annexure A4 TRUE COPY OF GOVERNMENT ORDER NO. GO (MS) NO.1/2017/P&ARD DATED 04/01/2017 ACCORDING SANCTION TO CONSTITUTE KERALA ADMINISTRATIVE SERVICE.** - **Annexure A5 TRUE COPY OF NOTIFICATION NO. GO (P) NO. 12/2017P&ARD DATED 29/12/2017 AS PER WHICH KERALA ADMINISTRATIVE SERVICE (KAS) RULES 2018** - **Annexure A6 TRUE COPY OF REPRESENTATION DATED 14/2/2022 AND THE COVERING LETTERS SUBMITTED BY THE PETITIONER THROUGH HIS EMPLOYER AS WELL AS ADVANCE COPY TO THE RESPONDENTS 1, 2 AND 3.** - **Annexure A7 TRUE COPY OF THE CLAUSE 2- PART II GENERAL CONDITIONS OF KERALA PUBLIC SERVICE COMMISSION-SPECIAL CONCESSIONS.** - **Annexure A8 TRUE COPY OF THE ORDER OF THE HARYANA PUBLIC SERVICE COMMISSION BY ORDER (ADVERTISE NO.3/2021 DATED 26.2.2021).** - **Annexure A9 TRUE COPY OF THE RELEVANT PORTION OF THE ORDER DATED 05.08.2019 ISSUED BY THE** **O.P.(KAT).NO.102/2022 :: 10 ::** ## **GOVERNMENT OF ASSAM.** **Annexure A10 TRUE COPY OF THE RELEVANT PORTION OF THE ORDER DATED 19.05.2021 ISSUED BY THE GOVERNMENT OF HIMACHAL PRADESH. Annexure A11 TRUE COPY OF THE RELEVANT PORTION OF THE ORDER DATED 22.01.2021 ISSUED BY THE GOVERNMENT OF JHARKAND Annexure A12 TRUE COPY OF THE RELEVANT PORTION OF THE ORDER DATED 11.03.2021 ISSUED BY THE GOVERNMENT OF MIZORAM. Annexure A13 TRUE COPY OF THE ORDER DATED 3.6.2019 IN O.A. 1021 OF 2019 ON THE FILE OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM Annexure A14 TRUE COPY OF THE INTERIM ORDER DATED 8.1.2020 PASSED BY THE KERALA ADMINISTRATIVE TRIBUNAL IN O.A. EKM 23 OF 2020. Exhibit P1 TRUE COPY OF THE O.A. 443 OF 2022 FILED BY THE PETITIONER BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL Exhibit P2 TRUE COPY OF THE ORDER DATED 21.03.2022 IN O.A. 443 OF 2022 ON THE FILE OF THE KERALA ADMINISTRATIVE TRIBUNAL.** **RESPONDENTS ANNEXURES: NIL.** **//TRUE COPY// P.S. TO JUDGE**