Kerala High Court
Anuj V.T vs State Of Kerala on 4 October, 2024
Author: Murali Purushothaman
Bench: A.Muhamed Mustaque, Murali Purushothaman
OP(KAT) NO.115 OF 2023 : 1 :
2024:KER:73663
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
FRIDAY, THE 4TH DAY OF OCTOBER 2024 / 12TH ASWINA, 1946
OP(KAT) NO. 115 OF 2023
AGAINST THE ORDER DATED 18.11.2022 IN OA NO.1945 OF
2022 OF KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM
PETITIONERS/APPLICANTS
1 ANUJ V.T, AGED 30 YEARS
S/O.THULASEEDHARAN NAIR G, THIRUVATHIRA,
NEELESWARAM P.O, NEDUVATHOOR, KOLLAM- 691505
2 ADARSH P, AGED 32 YEARS
S/O.PRATHAPAN T.S, BHAVAN, KAMUKUMCHERI P.O,
PIRAVANTHUR, KOLLAM, PIN - 689696
3 SARUN S., AGED 28 YEARS
S/O.SADANANDAN K.M, PILAVULLATHIL SARAYU,
ERAMALA, AZHIYUR, KOZHIKODE, PIN - 673306
BY ADVS.
JOBY CYRIAC
KURIAN K JOSE
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY,
HEALTH AND FAMILY WELFARE (B) DEPARTMENT,
GOVERNMENT SECRETERIAT,
OP(KAT) NO.115 OF 2023 : 2 :
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THIRUVANANTHAPURAM - 695 001.
2 THE SECRETARY,
HEALTH AND FAMILY WELFARE (B) DEPARTMENT,
GOVERNMENT OF KERALA, SECRETERIATE,
THIRUVANANTHAPURAM, PIN - 695 001.
3 THE DIRECTOR OF MEDICAL EDUCATION.
DIRECTORATE OF MEDICAL EDUCATION,
MEDICAL COLLEGE P.O,
THIRUVANANTHAPURAM, PIN - 695 011.
4 THE KERALA PUBLIC SERVICE COMMISSION,
REPRESENTED BY ITS SECRETARY, THULASI HILLS,
PATTOM PALACE P.O,
THIRUVANANTHAPURAM - 695 004.
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING
BEEN FINALLY HEARD ON 04.10.2024, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
OP(KAT) NO.115 OF 2023 : 3 :
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'CR'
JUDGMENT
Murali Purushothaman, J.
The Original Petition (KAT) is filed challenging the order dated 18.11.2022 in O.A No.1945 of 2022 of the Kerala Administrative Tribunal, Thiruvananthapuram whereby the Tribunal dismissed the Original Application as not maintainable holding that it does not have jurisdiction over the subject matter of the Original Application.
2. The petitioners were the applicants in the Original Application. They were aspirants for the post of 'Lab Assistant (Dialysis)' coming under the Medical Education Service of the State.
3.The qualification and method of appointment to the post of Lab Assistant (Dialysis) was fixed as per G.O(Ms) No.249/1982/H&FWD dated 25.10.1982. By OP(KAT) NO.115 OF 2023 : 4 : 2024:KER:73663 Annexure-A1 Government Order dated 06.12.2021, the Government amended the qualification and method of appointment to the said post. The qualification prescribed as per Annexure-A1 is, (i) Diploma in Dialysis Technology/Post Graduate Diploma in Dialysis Technology from a recognised Medical College/ Institution approved by the Government of Kerala/Kerala Paramedical Council or Bachelor Degree in Dialysis Technology from a recognized University. The experience criteria prescribed in Annexure-A1 provides for 'a working experience of not less than two years in the dialysis Department of Medical College for Diploma in Dialysis Technology/Post Graduate Diploma in Dialysis Technology holders'.
4. The petitioners state that they possess the qualification prescribed in Annexure-A1. However, regarding the requirement of work experience from Medical Colleges, they state that there are only 27 sanctioned posts across nine Medical Colleges in Kerala, OP(KAT) NO.115 OF 2023 : 5 : 2024:KER:73663 while more than 1,500 students have completed courses in Dialysis Technology and it is therefore impossible for all these students to get work experience from Medical Colleges, making the requirement unworkable and illegal in light of the legal principle Lex non cogit ad impossibilia (the law does not compel the doing of impossibilities). The petitioners state that they have work experience from other approved institutions, which is equivalent to the work experience from Medical Colleges in all respects. Accordingly, the petitioners submitted Annexure-A3 representation before the Secretary to Government, Health and Family Welfare Department, the 2nd respondent highlighting the aforementioned grievance. Since no action was taken thereon, the petitioners approached this Court by filing a Writ Petition under Article 226 of the Constitution of India for direction to quash the experience criteria prescribed in Annexure-A1 Government Order and for direction to the 2nd respondent to pass fresh order OP(KAT) NO.115 OF 2023 : 6 : 2024:KER:73663 fixing new experience criteria. A prayer was also sought to direct the 2nd respondent to consider and pass orders on Annexure-A3 representation within a time frame.
5. The Registry of this Court noted a defect asking the petitioners 'to verify whether the matter relates to Kerala Administrative Tribunal'. The learned counsel for the petitioners answered that the writ petition is maintainable before this Court. Being not satisfied with the reply, the matter was posted before the Bench and the learned Single Judge by Annexure- A4 order dated 27.09.2022 upheld the defect noted by the Registry and the writ petition was returned to be filed before the appropriate forum. Accordingly, the petitioners filed the aforesaid Original Application before the Tribunal seeking the following reliefs:-
"ii) to call for the original records leading to Annexure A1/G.O.(MS) No.235/2021 H&FWD dated 06.12.2021 and quash the same.
ii) To pass appropriate order directing the 2nd respondent to consider and pass service and order on Anexure A3 representation OP(KAT) NO.115 OF 2023 : 7 : 2024:KER:73663 after affording an opportunity of being heard to the applicants advice the applicants."
6. The Tribunal, by Ext. P2 order dated 18.11.2022, dismissed the Original Application. The order of the Tribunal reads as follows:-
"The applicants are seeking amendment of the qualifications to the post of Lab Assistant (Dialysis) under the Medical Education Service. As at present they are not under the service of the Government. The applicants do not have a case that they have even submitted application for any post under the Government. As the applicants are only qualified hands, who are only eligible to be considered for appointment to the posts under the Government, the Original application will not lie before this Tribunal as it would not come within the definition of Section 3(q) of the Administrative Tribunals Act, 1985. It will not also come under Section 15 of the Administrative Tribunal Act. Therefore, the remedy of the applicant lies else where.
The Original application is dismissed with liberty to the applicants to approach the appropriate forum."
7. The petitioners preferred a Writ Appeal against Annexure-A4 order of the learned Single Judge upholding the defect noted by the Registry and the OP(KAT) NO.115 OF 2023 : 8 : 2024:KER:73663 Division Bench of this Court, by Ext. P5 order dated 16.01.2023, returned the appeal holding that the order of the learned Single Judge is not an order passed by this Court in exercise of its original jurisdiction under Article 226 of the Constitution of India, and hence, no appeal can lie in terms of Section 5 of the Kerala High Court Act, 1958.
8. According to the petitioners, despite the production of Annexure-A4 order of this Court, the Tribunal dismissed the Original Application as not maintainable before it. The petitioners state that they have been desperately searching for a forum seeking the reliefs claimed in the Original Application and that, as per Section 15(1)(a) of the Administrative Tribunals Act, 1985 (for short, 'the Act'), the Administrative Tribunal of the State shall exercise jurisdiction in relation to recruitment and matters concerning recruitment to any civil service of the State or to any civil post under the State and therefore Ext. P2 order of OP(KAT) NO.115 OF 2023 : 9 : 2024:KER:73663 the Tribunal dismissing the Original Application as not maintainable is not correct. It is contended that non- consideration of the request of the petitioners to change the qualification criteria to a post under the State is a matter concerning recruitment to a civil post under the State and the Tribunal has jurisdiction to entertain the Original Application filed seeking a relief to set aside the order prescribing qualification. Accordingly, this Original Petition (KAT) is filed under Article 227 of the Constitution of India.
9. Heard Sri. Joby Cyriac, the learned counsel for the petitioners, Sri. A.J. Varghese, the learned senior Government Pleader for the respondents 1 to 3 and Sri. P.C. Sasidharan, the learned standing counsel for the Kerala Public Service Commission.
10. According to the petitioners, as per Section 15 (1)(a) of the Act, the Administrative Tribunal of a State shall exercise jurisdiction in relation to recruitment and matters concerning recruitment, to any OP(KAT) NO.115 OF 2023 : 10 : 2024:KER:73663 civil service of the State or to any civil post under the State. It is contended that, the reasoning of the Tribunal that since the petitioners are not under the service of the Government, the Original Application will not lie before the Tribunal, is not correct. They also argue that, to maintain an Original Application before the Tribunal, it is not necessary that they shall be an applicant to any post under the Government. According to the petitioners, they are aspirants qualified to be considered for appointment to the post of Lab Assistant (Dialysis) under the State and it is the experience criteria prescribed in Annexure-A1 that stands in their way to apply for the post. They contend that the experience criteria in Annexure-A1 is illegal and unworkable. Accordingly, they approached the authorities by submitting Annexure-A3 representation seeking to amend the prescribed experience criteria and since no action was taken, they have filed the Original Application before the Tribunal. However, the OP(KAT) NO.115 OF 2023 : 11 : 2024:KER:73663 Tribunal wrongly dismissed the Original Application as not maintainable holding that it does not have jurisdiction over the subject matter of the Original Application. Sri. Joby Cyriac, the learned counsel for the petitioners, submits that, the Government has, in the meantime, considered the grievance of the petitioners and made modification to Annexure-A1 Government Order and no further relief on merits is required. Sri. Joby would submit that the petitioners have been diligently seeking an appropriate forum for the reliefs claimed in the Original Application. They have already approached three different forums seeking the said reliefs, and the issue of jurisdiction remains to be determined.
11. Article 323-A of the Constitution of India deals with constitution of Administrative Tribunals for the adjudication of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in OP(KAT) NO.115 OF 2023 : 12 : 2024:KER:73663 connection with the affairs of the Union or of any State or of any local or other authority. Section 14 of the Act deals with jurisdiction, powers and authority of Central Administrative Tribunal and Section 15 of the Act deals with jurisdiction, powers and authority of State Administrative Tribunals. Section 3 (q) defines 'service matters' and Section 19 deals with applications to the Tribunal by person aggrieved by any order pertaining to any matter within the jurisdiction of the Tribunal. Section 28 deals with exclusion of jurisdiction of Courts other than Supreme Court.
12. Section 15 of the Act reads as follows:-
"15. Jurisdiction, powers and authority of State Administrative Tribunals (1) Save as otherwise expressly provided in this Act, the Administrative Tribunal for a State shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court 1[x x x x]) in relation to--
(a) recruitment, and matters concerning recruitment, to any civil service of the State or to any civil post under the State;OP(KAT) NO.115 OF 2023 : 13 :
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(b) all service matters concerning a person [not being a person referred to in clause (c) of this sub-section 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 2[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 2[or society] or other body as is controlled or owned by the State Government, at the disposal of the State Government for such appointment.
(2) The State Government may, by notification, apply with effect from such date as may be specified in the notification the provisions of sub-section (3) to local or other authorities and corporations 2[or societies] controlled or owned by the State Government:
Provided that if the State Government considers it expedient so to do for the purpose of facilitating transition to the scheme as envisaged by this Act, different dates may be so specified under this sub- section in respect of different classes of, or different categories under any class of, local or other authorities or corporations 2[or societies].OP(KAT) NO.115 OF 2023 : 14 :
2024:KER:73663 (3) Save as otherwise expressly provided in this Act, the Administrative Tribunal for a State shall also exercise, on and from the date with effect from which the provisions of this sub-section apply to any local or other authority or corporation 2[or society], all the jurisdiction, powers and authority exercisable immediately before that date by all courts (except the Supreme Court 1[x x x x]) in relation to--
(a) recruitment, and matters concerning recruitment, to any service or post in connection with the affairs of such local or other authority or corporation 2[or society];
and
(b) all service matters concerning a person [other than a person referred to in clause
(b) of sub-section (1) of this section or a member, person or civilian referred to in clause (b) of sub-section (1) of section 14] appointed to any service or post in connection with the affairs of such local or other authority or corporation 2[or society] and pertaining to the service of such person in connection with such affairs.
(4) For the removal of doubts, it is hereby declared that the jurisdiction, powers and authority of the Administrative Tribunal for a State shall not extend to, or be exercisable in relation to, any matter in relation to which the jurisdiction, powers and authority of the Central Administrative Tribunal extends or is exercisable.
(underlining supplied) Section 3 (q) of the Act which defines 'service matters' reads thus:
OP(KAT) NO.115 OF 2023 : 15 :
2024:KER:73663 Section 3(q). "service matters", in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or, as the case may be, of any corporation [or society] owned or controlled by the Government, as respects--
(i) remuneration (including allowances), pension and other retirement benefits;
(ii) tenure including confirmation,
seniority, promotion, reversion,
premature retirement and
superannuation;
(iii) leave of any kind;
(iv) disciplinary matters; or
(v) any other matter whatsoever;
Section 19 of the Act reads as under:-
"19. Applications to tribunals.--(1) Subject to the other provisions of this Act, a person aggrieved by any order pertaining to any matter within the jurisdiction of a Tribunal may make an application to the Tribunal for the redressal of his grievance.
Explanation.--For the purposes of this subsection, "order" means an order made--OP(KAT) NO.115 OF 2023 : 16 :
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(a) by the Government or a local or other authority within the territory of India or under the control of the Government of India or by any corporation 3 [or society] owned or controlled by the Government; or
(b) by an officer, committee or other body or agency of the Government or a local or other authority or corporation 3 [or society] referred to in clause (a).
(2) Every application under sub-section (1) shall be in such form and be accompanied by such documents or other evidence and by such fee (if any, not exceeding one hundred rupees) [in respect of the filing of such application and by such other fees for the service or execution of processes, as may be prescribed by the Central Government].
On receipt of an application under subsection (1), the Tribunal shall, if satisfied after such inquiry as it may deem necessary, that the application is a fit case for adjudication or trial by it, admit such application; but where the Tribunal is not so satisfied, it may summarily reject the application after recording its reasons.] (4) Where an application has been admitted by a Tribunal under sub-section (3), every proceeding under the relevant service rules as to redressal of grievances in relation to the subject-matter of such application pending immediately before such admission shall abate and save as otherwise directed by the Tribunal, no appeal or representation in relation to such matter shall thereafter be entertained under such rules."
Section 28 of the Act deals with exclusion of jurisdiction of Courts and it reads thus:
'Section 28. Exclusion of jurisdiction of OP(KAT) NO.115 OF 2023 : 17 : 2024:KER:73663 Courts except the Supreme Court- On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or post, no Court except--
(a) the Supreme Court; or
(b) any industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947) or any other corresponding law for the time being in force, shall have, or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment of such service matters.' Thus, Section 15 of the Act provides that the State Administrative Tribunal shall exercise all the jurisdiction, powers and authority exercisable by all Courts except the Supreme Court in relation to OP(KAT) NO.115 OF 2023 : 18 : 2024:KER:73663 recruitment, and matters concerning recruitment, to any civil service of the State or to any civil post under the State and other matters set out therein. Section 3(q) defines 'service matters', to mean all matters relating to the conditions of service of a person in connection with the affairs of the Union or of any State or of any local or other Authority. Clause (v) of Section 3(q) is a 'residual catch-all clause' which takes in 'any other matter whatsoever' relating to the conditions of service in relation to the person. Section 19 of the Act deals with applications to the Tribunal by a person aggrieved by any order pertaining to any matter within the jurisdiction of the Tribunal for the redressal of his grievances. Section 28 excludes the jurisdiction of Courts except Supreme Court under Article 136 of the Constitution in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or post, on and from OP(KAT) NO.115 OF 2023 : 19 : 2024:KER:73663 the date from which any jurisdiction, powers and authority becomes exercisable under the Act by a Tribunal.
13. An application under Section 19 of the Act can be filed before the State Administrative Tribunal by a person aggrieved by any order pertaining to any matter within the jurisdiction of the Tribunal. The word 'order' has been defined in the explanation (a) to Section 19(1) of the Act and takes within its ambit an 'order' made by the Government, local authority or other authority. Thus, it follows that a person aggrieved by any order made by the Government, local authority or other authority in relation to the recruitment, and matters concerning recruitment, to any civil service of the State or to any civil post under the State can make an application to the Tribunal for the redressal of his grievances. Now the question is, whether Annexure- A1 is an order made by the Government, local authority or other authority in relation to the recruitment, and OP(KAT) NO.115 OF 2023 : 20 : 2024:KER:73663 matters concerning recruitment, to any civil service of the State or to any civil post under the State. Annexure- A1 is an order passed by the Government of Kerala amending the qualification and method of appointment for the post of Lab Assistant (Dialysis) under the Medical Education Service in the State. It lays down the qualification, experience, method of appointment, age limit, reservation for appointment etc for the said post. The method of appointment is by direct recruitment through the Kerala Public Service Commission. The process of recruitment commences with the issuance of advertisement inviting applications and culminates in appointment. However, before the recruitment process commences, rules laying down the qualification and method of appointment to the post have to be framed, if not already framed. The qualification shall be prescribed at least in the notification inviting applications. Those are matters concerning recruitment. Recruitment precedes OP(KAT) NO.115 OF 2023 : 21 : 2024:KER:73663 appointment. Annexure-A1 order passed by the Government amending the qualification and method of appointment for the post of Lab Assistant (Dialysis) under the Medical Education Service comes within the ambit of matters concerning recruitment. It is an 'order' coming within the meaning of Section 19 (1) of the Act. According to the petitioners, due to the unworkable and illegal experience criteria fixed in Annexure-A1 Government Order, they were prevented from applying for the post. The petitioners are persons aggrieved by the said order. They have challenged the order within a reasonable time. Annexure-A1 order pertains to matter within the jurisdiction of the State Administrative Tribunal inasmuch as it is in relation to matter concerning recruitment to service under the State. Therefore, Ext.P1 Original Application challenging Annexure-A1 order is maintainable before the Tribunal. For preferring an Original Application under Section 19 before the Tribunal, it is not necessary that the OP(KAT) NO.115 OF 2023 : 22 : 2024:KER:73663 petitioners shall be under the service of the Government or applicants to any post under the Government. Therefore, the Kerala Administrative Tribunal should have exercised jurisdiction as Court of first instance on the application of the petitioners for redressal of their grievances.
14. The question whether persons aspiring for selection and recruitment to a post under the Union of India can maintain an Original Application before the Central Administrative Tribunal came up for consideration before this Court in Saleem v. Deputy Collector [1988 (1) KLT 757: 1988 KHC 56]. As stated, while Section 15 of the Act deals with the jurisdiction, powers and authority of the State Administrative Tribunals, Section 14 deals with the jurisdiction, powers and authority of the Central Administrative Tribunals and are similarly worded. In the said decision, a learned Single Judge of this Court held that petition filed by those aspiring for selection OP(KAT) NO.115 OF 2023 : 23 : 2024:KER:73663 and recruitment as Sepoys in the Central Excise Department was maintainable before the Central Administrative Tribunal and that the word 'recruitment' in Section 14 of the Act cannot be restricted to recruitment by transfer of persons already in service. The relevant portion of the said decision reads as under:-
"4. It is one of the cardinal principles of construction that where the language of an Act is clear, the preamble must be disregarded, though, where the object or meaning of an enactment is not clear, the preamble may be resorted to explain it. Again, where very general language is used in an enactment which, it is clear, must be intended to have a limited application, the preamble may be used to indicate to what particular instances the enactment is intended to apply. We cannot therefore, start with the preamble for construing the provisions of an Act, though we would be justified in resorting to it, may, we will be required to do so, if we find that the language used by Parliament is ambiguous or is too general, though in point of fact Parliament intended that it should have a limited application. (Burrakur Coal Co. v. Union of lndia AIR 1961 SC 954) The preamble may be used to solve any ambiguity or to fix the meaning of words which may have more than one meaning, but it cannot be used to eliminate as redundant or unintended, the operative provisions of statute (State of Rajasthan v.OP(KAT) NO.115 OF 2023 : 24 :
2024:KER:73663 Leela (AIR 1965 SC 1296). S.14 inter alia vests the Central Administrative Tribunal with exclusive jurisdiction over matters in relation to, or concerning recruitment to any All India Service or any civil service of the Union. "Recruitment" in the Section is not restricted to recruitment by transfer of persons already in service. It is of wide amplitude and can take within its ambit, direct recruitment as well. There is, and there can be, no ambiguity in the meaning of the word "recruitment" in S.14. The Section on its plain language must therefore apply even to future direct recruitments. The preamble cannot be resorted to, to interpret and restrict the scope of S.14 when its language is clear and unambiguous, and there is no absurdity or anomaly to be avoided. As stated in Burrakur Coal Co. case we cannot start with the preamble and read down the plain language of S.14. If the petitioner's contention is to be accepted clause (a) of S.14(1) will be rendered otiose and there will be practically no occasion for applying it at all.
5. Even otherwise, I am not inclined to accept the petitioner's contention regarding the scope of the preamble itself. The raison d'etre for the introduction of Art.323-A and 323-B in the Constitution by the Constitution (Forty Second Amendment) Act, 1976 and the enactment of the Administrative Tribunals Act, following it, are explained by Ranganath Misra J. in Para.15 and 16 of his judgment in Sampath Kumar v. Union of India 1987 (1) SCC 124. The Constitution Amendment was the culmination of the debates and deliberations, spread over almost two decades, for exploring ways and means, for relieving the High Courts of the load of OP(KAT) NO.115 OF 2023 : 25 : 2024:KER:73663 backlog of cases and for assuring quick settlement of service disputes in the interests of public servants as also the country. The Tribunal was contemplated as a substitute to take over a part of the existing backlog, and a share of the normal load, of the High Courts, and not as supplemental to the High Courts in the scheme of administration of justice. Expeditious disposal of service matters and relief to the High Court by appointing a substitute forum for adjudication of such disputes were the twin purposes of the Constitution Amendment and the subsequent Act. If this be the scheme of the legislation, the purpose will stand defeated by limiting the operation of the Act to existing employees alone.
6. It has to be noticed that a statute is applied not on the date of enactment but as on the date of enforcement (Kunhammed Kayi v. Premalatha 1962 KLT 366 (FB). Its meaning has to be gathered with reference to the point of time when the cause is brought or dispute is raised for adjudication. Any person in service at that time is a person "appointed" and therefore within the ambit of even the preamble. The word "appointed' is only descriptive of the persons to whom the Act applies and not indicative of the time of appointment. It is intended to describe the persons to whom the Act applies as those in public service and not as those already in service."
15. In Dr.Duryodhan Sahu & Others etc. v. Jitendra Kumar Mishra & Others [1998 KHC 565:
1998 (2) KLT SN 51: AIR 1999 SC 114: (1987) 7 SCC OP(KAT) NO.115 OF 2023 : 26 : 2024:KER:73663 273], the Hon'ble Supreme Court, while considering the question whether a public interest litigation can be entertained by the Administrative Tribunal, held as follows:-
"18. The constitution of Administrative Tribunals was necessitated because of large pendency of cases relating to service matters in various courts in the country. It was expected that the setting up of Administrative Tribunals to deal exclusively in service matters would go a long way in not only reducing the burden of the Courts but also provide to the persons covered by the Tribunals speedy relief in respect of their grievances. The basic idea as evident from the various provisions of the Act is that the Tribunal should quickly redress the grievances in relation to service matters. The definition of 'service matters' found in S.3(q) shows that in relation to a person the expression means all service matters relating to the conditions of his service. The significance of the word 'his' cannot be ignored. S.3(b) defines the word OP(KAT) NO.115 OF 2023 : 27 : 2024:KER:73663 'application' as an application made under S.19. The latter Section refers to 'person aggrieved'. In order to bring a matter before the Tribunal, an application has to be made and the same can be made only by a person aggrieved by any order pertaining to any matter within the jurisdiction of the Tribunal. We have already seen that the word 'order' has been defined in the explanation to sub-s.(1) of S.19 so that all matters referred to in S.3(q) as service matters could be brought before the Tribunal. If in that context, S.14 and 15 are read, there is no doubt that a total stranger to the concerned service cannot make an application before the Tribunal. If public interest litigations at the instance of strangers are allowed to be entertained by the Tribunal the very object of speedy disposal of service matters would get defeated."
The Hon'ble Supreme Court held that an application before the Administrative Tribunal can be made only by a person aggrieved by any order pertaining to any OP(KAT) NO.115 OF 2023 : 28 : 2024:KER:73663 matter within the jurisdiction of the Tribunal.
16. A Division Bench of this Court in Tomy Philip v. The Chief General Manager, Telecommunication [2001 (2) KLT 490: 2001 KHC 440: ILR 2001 (2) Ker.97], after an analysis of various decisions including Saleem (supra), took the view that the word 'recruitment' in Section 14 (1) (a) of the Administrative Tribunals Act is not restricted to recruitment by transfer of persons already in service and it can take within its ambit direct recruitment as well. The Division Bench was considering Writ Petitions filed by candidates who failed to get appointment as Junior Telecom Officers despite their claim that they have satisfied the qualifications prescribed in the notification. In paragraph 16 of the decision, the Division Bench held as follows:-
"16. ...... On a consideration of the relevant constitutional provisions and the scheme of the Tribunals Act, it has been held by the Apex Court that, the Tribunals created under Art.323A and Art.323B of the Constitution are possessed of the competence to test the OP(KAT) NO.115 OF 2023 : 29 : 2024:KER:73663 constitutional validity of statutory provisions and rules. The Tribunals will continue to act as the Courts of first instance in respect of areas of law for which they have been constituted, though their decisions will however, be subject to a scrutiny before a Division Bench of the High Court. To a limited extent, S.28 of the Administrative Tribunals Act, 1985 and the exclusion of jurisdiction clauses in all other legislations enacted under the aegis of Art.323A and 323B was, to that extent, held to be unconstitutional, making a departure from the earlier decision in S.P. Sampath Kumar's case (supra).
17. We will now consider two decisions where a different view has been expressed. In The Chairman, Railway Recruitment Board v. S. Ruban Peter (1990 (1) MLJ 373) the Madras High Court took the view that the jurisdiction of the High Court under Art.226 and 227 of the Constitution of India to deal with service matters with effect from 1st November 1985 was excluded only in so far as the employees already in service of the Government, local authority etc. are concerned, provided they relate to matters which strictly fall within S.14 read with S.3(q) of the Act and not in other cases. It is further held that it is only an 'aggrieved person' as contemplated by S.19 of the Act who is required to approach the Tribunal only for adjudication and trial of such disputes and complaints etc. In all other cases, the jurisdiction of the High Court under Art.226/227 of the Constitution remains intact even after 1st November 1985. A perusal of the said decision would show that, it has exclusively dealt with the law laid down in S.P. Sampath Kumar's case (supra). We have already indicated in para 16 above that, in the later Larger Bench OP(KAT) NO.115 OF 2023 : 30 : 2024:KER:73663 decision in L. Chandra Kumar's case, the Apex Court has made a partial departure from the ratio laid down in S.P. Sampath Kumar's case. Similarly in the two decisions, which we have discussed in para 12 and 13 above, namely A.P. Public Service Commission case and Profulla Kumar Swain's case, the Apex Court has given a wider meaning to the words 'selection and recruitment'. It has been held that the process of selection leading to recruitment begins from the issuance of advertisement and ends with preparation of select list for appointment. Indeed, it consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications, elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of list of successful candidates for appointment. Recruitment is an initial process which may lead to eventual appointment in service. In view of this wider interpretation put by the Apex Court, we find it difficult to persuade ourselves to come to the conclusion that the words "recruitment and matters concerning recruitment" occurring in clause (a) of sub-
s.(1) of S.14 must be read and understood to apply the inservice candidates who alone can raise the dispute before the Tribunal even in respect of matters relating to the process of recruitment as understood widely."
The Division Bench held that the Central Administrative Tribunal is the Court of first instance where the litigants can agitate their grievances in relation to "recruitment, OP(KAT) NO.115 OF 2023 : 31 : 2024:KER:73663 and matters concerning recruitment" to any civil service of the Union including the Constitutional validity of any statutory provisions and the words "recruitment and matters concerning recruitment" occurring in Clause (a) of sub-section (1) of Section 14 of the Act cannot be limited to in-service candidates alone.
17. In Sojimol P.J v. State of Kerala & Ors [2012 (3) KHC 287: 2012 (3) KLT 442: 2012 (3) KLJ 401], a Single Bench of this Court had occasioned to consider whether a writ petition filed by a person who has been included in the rank list published by the Public Service Commission for appointment to a post under the service of the State is maintainable. This Court, after relying on various decisions including Dr.Duryodhan Sahu (supra), Saleem (supra) and Tomy Philip (supra) and after considering the provisions under Section 15(1) (a) of the Administrative Tribunals Act held that, any matter concerning recruitment will be a matter coming within OP(KAT) NO.115 OF 2023 : 32 : 2024:KER:73663 the purview of the Kerala Administrative Tribunal. This Court held that a Government Order regarding advise of physically handicapped candidates can be challenged before the Kerala Administrative Tribunal since the matter is concerning recruitment and will come within the purview of the Kerala Administrative Tribunal.
18. In view of the interpretation given in the above decisions to the words "recruitment and matters concerning recruitment" appearing in Clause (a) of sub- Section (1) of Sections 14 and 15 of the Act, it is clear that those words are not limited to apply to persons who are already in service. Candidates who have applied for selection, those who failed to get appointment and persons included in the rank list can make applications before the Administrative Tribunal for the redressal of grievances. A person who is aggrieved by all matters relating to the conditions of his service referred to in Section 3(q) can bring an application before the Tribunal. An application before OP(KAT) NO.115 OF 2023 : 33 : 2024:KER:73663 the Tribunal can be made by a person who is aggrieved by any order made by the Government or a local or other authority pertaining to any matter within the jurisdiction of the Tribunal.
19. The petitioners are aggrieved by Annexure-A1 order passed by the Government amending the qualification and method of appointment for the post of Lab Assistant (Dialysis) under the Medical Education Service. It is an 'order' coming within the meaning of Section 19 (1) of the Act. It comes within the ambit of 'matters concerning recruitment' occurring in Clause (a) of sub section (1) of Section 15 of the Act inasmuch as it prescribes the qualification and method of appointment for the post of Lab Assistant (Dialysis) under the Medical Education Service in the State. Prescribing qualification and method of appointment to a post is a matter concerning recruitment as referred to in Clause (a) of sub section (1) of Section 15 of the Act.
20. Then the question is whether the rules or OP(KAT) NO.115 OF 2023 : 34 : 2024:KER:73663 order prescribing qualification can be challenged before the issuance of notification inviting applications. If the rules or order prescribing qualification is unworkable, illegal or arbitrary and prevents or excludes a class of persons from applying for the post, the same can be challenged by aspirants for the post by approaching the Tribunal at the first instance. Then it is for the Tribunal to examine whether they are persons aggrieved in the context of the rules and the facts of the case.
21. According to the petitioners, due to the unworkable and illegal experience criteria fixed in Annexure-A1 Government Order, they were prevented from applying for the post of Lab Assistant (Dialysis) under the Medical Education Service. Therefore, Ext. P1 Original Application filed before the Tribunal against Annexure-A1 is maintainable. It is declared so. Ext. P2 order of the Tribunal is set aside. However, since the petitioners have already obtained the relief prayed for in the Original Application, no further directions are OP(KAT) NO.115 OF 2023 : 35 : 2024:KER:73663 necessary in this Original Petition.
The Original Petition (KAT) is, accordingly, disposed of.
Sd/-
A.MUHAMED MUSTAQUE JUDGE Sd/-
MURALI PURUSHOTHAMAN JUDGE SB OP(KAT) NO.115 OF 2023 : 36 : 2024:KER:73663 APPENDIX PETITIONER ANNEXURES Exhibit P1 TRUE COPY OF THE MEMORANDUM IN OA NO.
1945/2022 ON THE FILE OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.
Annexure A1 TRUE COPY OF THE GOVERNMENT ORDER NO.GO.
(MS)NO.235/2021 H&FWD, DATED 06-12-2021 Annexure A2 TRUE COPY OF THE GOVERNMENT ORDER G.O(MS)NO.67/93/H&FWD DATED 15-06-1993 Annexure A3 TRUE COPY OF THE REPRESENTATION DATED 25-08-2022 SUBMITTED BY THE APPLICANTS TO THE 2ND RESPONDENT Annexure TRUE COPY OF THE POSTAL RECEIPT OF ANX A3(A) A3 Annexure A4 TRUE COPY OF THE FINAL ORDER DATED 27- 09-2022 IN WPC(). NIL /2022 FILING NO.30411/2022.
Exhibit P2 TRUE COPY OF THE ORDER DATED 18.11.2022
IN OA NO. 1945/2022 OF THE HON'BLE
KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM
Exhibit P3 TRUE COPY OF THE UNNUMBERED WRIT
PETITION HAVING FILING NO. 30411 OF 2022 WITHOUT ITS EXHIBITS Exhibit P4 TRUE COPY OF THE ORDER SHEET OF THE EXT P3 Exhibit P5 TRUE COPY OF THE ORDER DATED. 16/01/2023 IN W.A. NO. 51/2023