Kerala High Court
Annes.K.A vs State Of Kerala
Author: C.T. Ravikumar
Bench: C.T.Ravikumar, Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
WEDNESDAY, THE 1ST DAYOF MARCH 2017/10TH PHALGUNA, 1938
OP(KAT).No. 29 of 2014 (Z)
---------------------------
T.A. NO.4029/2012 OF KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM.
.......
PETITIONERS/APPLICANTS 2 & 3 IN THE T.A.:
------------------------------------------------------------------
1. ANNES.K.A.,
THEKKEPARAMBIL HOUSE,
MUTHOLAPURAM P.O., ELANJI VIA,
PIN-686 665, ERNAKULAM DISTRICT.
2. SIVAKUMAR T.,
LAKSHMI BHAVAN, IRUMPANANGAD P.O.,
EZHUKONE-691 505, KOLLAM.
BY ADVS. SRI.S.RAMESH,
SRI.NAVEEN.T,
SMT.POOJA SURENDRAN.
RESPONDENTS/RESPONDENTS 1 TO 5 & APPLICANTS 1 & 4 IN T.A.:
----------------------------------------------------------------------------------------------------
1. STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION,
HOUSING BOARD BUILDING, SANTHI NAGAR,
THIRUVANANTHAPURAM-695 001.
3. KERALA PUBLIC SERVICE COMMISSION,
PATTOM, THIRUVANANTHAPURAM,
REPRESENTED BY ITS SECRETARY, PIN-695 004.
*4. SMITHA N., HSST (CHEMISTRY),
GOVT.V.H.S.S., MULLERIYA,
KASARAGOD, PIN-571 543.
OP(KAT).No. 29 of 2014 (Z)
*5. SUJATHA P.,HSST (CHEMISTRY),
GOVT.V.H.S.S., MANATHANA, MANATHANA P.O.,
KANNUR DISTRICT, PIN-670 677.
6. ARUN ROY S.R., ROY NIVAS,
VELLALLOOR P.O., KILIMANOOR-695 601,
THIRUVANANTHAPURAM DISTRICT.
7. BIJU O.J., OLAPPURAYIL,
BAVALI P.O, KATTIKULAM-670 646,
WAYANAD DISTRICT.
* RESPONDENTS 4 AND 5 ARE IMPLEADED IN A REPRESENTATIVE
CAPACITY ON BEHALF OF OR FOR THE BENEFIT OF ALL PERSONS
SIMILARLYPLACED LIKE THEM AND LIKELY TO BE AFFECTED BY
THE DECISION IN THE ORIGINAL PETITION (KAT) AS PER ORDER
DATED 18/07/2014 IN I.A. NO.1076/2014.
R1 & R2 BY GOVT.PLEADER SRI.PAUL ABRAHAM VAKKANAL.
R3 BY SRI.P.C.SASIDHARAN, SC.
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN
FINALLY HEARD ON 01-03-2017, ALONG WITH OPKAT.157/2014
AND OPKAT. 210/2014, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
rs.
OP(KAT).No. 29 of 2014 (Z)
APPENDIX
PETITIONER'S EXHIBITS:-
EXT.P1 COPY OF THE AMENDED TRANSFERRED APPLICATION,
TA. NO.4029/2012 FILED BY THE PETITIONERS.
EXT.P2 COPY OF THE INTERIM ORDER DATED 19/08/2011 IN
WP(C).NO.22608/2011 GRANTED BY THIS HONOURABLE COURT.
EXT.P3 COPY OF THE REPLYSTATEMENT FILED ON BEHALF OF THE
2ND RESPONDENT IN TA. NO.4029/2012 BEFORE THE KAT.
EXT.P4 COPY OF THE REJOINDER FILED BY THE APPLICANTS IN
TA. NO.4029/2012 BEFORE THE KAT.
EXT.P5 COPY OF THE REPLYSTATEMENT FILED BY THE RESPONDENT
IN TA. NO.4029/2012 BEFORE THE KAT.
EXT.P6 COPY OF THE ORDER DATED 27/12/2013 IN TA. NO.4029/2012 OF
THE KERALA ADMINISTRATIVE TRIBUNAL.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.S.TO JUDGE
rs.
C.R.
C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ.
--------------------------------------------------
O.P.(KAT)Nos.29, 157 & 210 OF 2014
--------------------------------------------------
DATED THIS THE 1st DAY OF MARCH, 2017
JUDGMENT
C.T. RAVIKUMAR, J.
The unsuccessful applicants before the Kerala Administrative Tribunal in T.A.No.4029/2012, O.A.Nos.1556/2012 and 503/2012 have filed the captioned Original Petitions. They were rank holders in a ranked list published by the Kerala Public Service Commission (PSC) for appointment to the post of Higher Secondary School Teacher (Chemistry) which was brought into force with effect from 7.5.2007. Applicants 1 to 4 in T.A.No.4029/2012 were holding rank Nos.120, 121, 125 and 138 respectively in the said rank list. It is stated that applicants 1 and 4 therein had obtained appointment and they are impleaded in the Original Petition as respondents 6 and 7. In other words, the Original Petition against the order in T.A.No.4029/2012 is filed only by applicants 2 and 3. The applicants in O.A.Nos.503/2012 and 1556/2012 are also rank holders in the same ranked list. The applicants in T.A.No.4029/2012 obviously approached this Court by filing W.P.(C)No.22608/2011 seeking issuance of a writ of certiorari calling for the records leading O.P.(KAT)Nos.29, 157 & 210/2014 -2- to Exts.P12 and P13 to the extent it includes Sl.Nos.20 to 39 and to quash the same. The further prayers are as follows:
"(ii) Issue a writ of mandamus or any other appropriate writ, direction or order declaring that the appointment made to the category of Higher Secondary School Teacher (Chemistry) by appointment by transfer from the category of HSAs/UPSAs/LPSAs are in excess of the quota available to them under the Special Rules and those appointees in excess of the quota have to be removed and in their place petitioners should be advised and appointed.
(iii) Issue a writ of mandamus or any other appropriate writ, direction or order declaring that vacancies of Higher Secondary School Teachers (Chemistry) in which HSSTs (Junior) were appointed when they did not complete probation at the time when the vacancies arose have to be removed from the said post and in those vacancies the petitioners should be given advice and appointment on the basis of the rank obtained by them in the selection made by the PSC.
(iv) Issue a writ of mandamus or any other appropriate writ, direction or order declaring that all the vacancies of Higher Secondary School Teacher (Chemistry) in which excess appointments were made by appointment by transfer of has/UPSA/LPSA are to be earmarked for advice O.P.(KAT)Nos.29, 157 & 210/2014 -3- and appointment of the petitioners on the basis of the rank obtained by them in the ranked list and appropriate seniority legitimately due to them in that category should be given to them.
(iv)(a) Call for the records leading to Annexure A1 order and set aside the same."
2. After the constitution of the Administrative Tribunal, W.P.(C)No.22608/2011 was transferred to the Tribunal and subsequently it was re-numbered as T.A.No.4029/2012. The said transfer application was considered and ultimately it was dismissed as per Ext.P6 order dated 27.12.2013. Though the Original Applications were filed during the pendency of T.A.No.4029/2012, they were considered and disposed of by separate orders by the Tribunal. Evidently, relying on the order dated 27.12.2013 in T.A.No.4029/2012, O.A.No.503/2012 was dismissed as per order dated 31.3.2014 and O.A.No.1556/2012 was heard separately and relying on the order dated 27.12.2013 in T.A.No.4029/2012, it was dismissed as per order dated 25.2.2014. O.P.(KAT)No.29/14 arises from the order dated 27.12.2013 in T.A.No.4029/2012 and O.P.(KAT)Nos.157/2014 and 210/2014 arise from the order dated 25.2.2014 in O.P.(KAT)Nos.29, 157 & 210/2014 -4- O.A.No.1556/2012 and order dated 31.3.2014 in O.A.No.503/2012, respectively. Evidently, all the petitioners are having common grievance. As noticed hereinbefore, they were rank holders in a ranked list published by PSC on 7.5.2007 (produced as Ext.P1 in T.A.No.4029/2012). Essentially, the main challenge in all the three Original Petitions is against the action on the part of the authorities in not identifying the number of vacancies available for direct recruitment quota taking into account the fact that quota was not followed while effecting appointments from 1998 to 2000 and even thereafter, despite the framing of the Special Rules based on the ratio fixed for effecting appointment by transfer and direct recruitment.
3. Admittedly, the Kerala Higher Secondary Education State Service Rules, 2001 came into force only on 16.4.2001. Prior to that, appointment to the post of Higher Secondary School Teachers were being effected based on executive orders. It is the contention that prior to the coming into force of the said Rules, 25% of the vacancies in that cadre were to be filled up by transfer and appointment from qualified High School Assistants and Primary School Teachers and 75% of the vacancies were to O.P.(KAT)Nos.29, 157 & 210/2014 -5- be filled up by effecting direct recruitment. It is the contention that though 75% of the vacancies were to be filled by direct recruitment, no direct recruitment was actually made for years together and all those vacancies were filled up by effecting 'by transfer' appointments. After the coming into force of the Special Rules, virtually, the position has been changed and going by Rule 2(2), the entire vacancies in the post of Higher Secondary School Teachers are to be filled up by transfer from Higher Secondary School Teachers (Junior) in the subject concerned. Only in the absence of persons in the said category, by transfer appointment and direct recruitment could be effected in the ratio 1:3. The first preferential category for by transfer appointment is High School Assistant subject to the satisfaction of the qualifications prescribed thereunder. Only in the absence of fully qualified hands in the said category, persons belonging to UPSA/LPSA having the prescribed qualifications could be given by transfer appointment against that quota. It is the contention of the petitioners that appointees under Order No.ADB5/7068/HSE/11 dated 23.7.2011 and Order No.ADB5/7000/HSE/11 dated 25.7.2011 (produced and marked as Exts.P12 and P13 in O.P.(KAT)Nos.29, 157 & 210/2014 -6- T.A.No.4029/12) and Annexure A1 order bearing No.G.O.(Rt.) No.4098/2011/G.Edn. dated 29.9.2011 had not completed their period of probation on the date of their appointment. The appointments made under Exts.P12 and P13 are challenged on the ground that by transfer appointees from the category of HSSTs (Jr.) had not completed their period of probation on the date of their appointment. It is the contention that in the light of the decision of a Division Bench of this Court in Ajithakumari v. Shamma (2009 (1) KLT 808), an HSST (Jr.) would acquire entitlement for being considered for appointment by transfer as HSST only on satisfactorily completion of the period of probation. The period of probation for HSST (Jr.) is prescribed under Rule 6 of the Kerala Higher Secondary Education Subordinate Service Rules, 2001. To support the said contention, the petitioners also places reliance on the provisions under Rule 28 (b)(ii) of Part II KS & SSR. In short, it is the contention that as per Ext.P12, in violation of the ratio prescribed, persons belonging to the categories HSA and UPSA/LPSA were given appointment by transfer. The further contention is that as per Ext.P13 teachers from the category of HSSTs (Jr.) were given appointment by O.P.(KAT)Nos.29, 157 & 210/2014 -7- transfer prior to completion of the period of probation. In fact, the contention is that Sl.Nos.20 to 39 in Ext.P13 belong to the said category and therefore their appointments to the post of HSST (Jr.) is illegal. Evidently, all these contentions were unsuccessfully raised before the Tribunal
4. As noticed hereinbefore, T.A.No.4029/2012 was taken up for consideration first by the Tribunal and it was dismissed as per order dated 27.12.2013. Evidently, it is relying on the order in the said T.A. that O.A.No.1556/2012 and 503/2012 were dismissed subsequently. As regards the challenge against the appointments effected during the period 1998 to 2001, it is to be noted that none of the appointees during that period was made a party to the Original Application. That fact is admitted before us, when the matter is taken up for consideration, by the learned counsel appearing for the petitioners. Respondents 4 and 5 in the said transfer application are persons who were given by transfer appointment under Ext.P13. The submission is that they were impleaded as respondents in the Writ Petition in representative capacity and a paper publication was also taken out. At the same time, it is to be noted that admittedly, in O.P.(KAT)Nos.29, 157 & 210/2014 -8- O.A.Nos.1556/2012 and 503/2012, two individuals, who were given by transfer appointments as per order dated 27.5.2011 were made parties. No paper publication was admittedly taken out. There is nothing on record to show that even those persons were made as party respondents in representative capacity.
5. We have already noted that it is relying on the order in T.A.No.4029/2012 that O.A.Nos.503/2012 and 1556/2012 were dismissed. In such circumstances, the question is, whether the challenge against the order in T.A.No.4029/2012 on the grounds referred to hereinbefore specifically, is sustainable. Evidently, in respect of the appointments made between 1998 and 2001, none of the appointees were made a party respondent either in representative capacity or in personal capacity. That apart, it is to be noted that there is no case for the petitioners that appointments were effected from 1998 to 2001 at a time when a ranked list figuring the names of the petitioners were in force. Obviously, they were rank holders in the ranked list published only in the year 2007. In the absence of any averment to the effect that at the time when such appointments were effected from the categories of HSA/UPSA/LPSA, a valid PSC ranked list O.P.(KAT)Nos.29, 157 & 210/2014 -9- was available, we do not think that the petitioners will be justified in mounting challenge against the appointments effected during the said period.
6. Now, the main contention of the petitioners with respect to the subsequent appointment is to the effect that the due share in the post based on the ratio prescribed in the special rules was not given to the direct recruits and that ultimately resulted in denial of their appointments. We have already found that as per G.O. dated 16.4.2001, the Kerala Higher Secondary Education State Service Rules, 2001 was brought into force. Going by the same, the normal method of appointment is by transfer from Higher Secondary School Teacher (Jr.) in the subject concerned. Only in the absence of qualified hands, vacancies in the post of Higher Secondary School Teachers would be available for direct recruitment and by transfer appointment from HSA and UPSA/LPSA. Obviously, in the absence of qualified hands in the category of Higher Secondary School Teachers (Jr.), vacancies have to be apportioned in the ratio of 1:3 between appointment by transfer and direct recruitment. The dispute is with respect to the failure to follow the prescribed ratio while effecting O.P.(KAT)Nos.29, 157 & 210/2014 -10- appointments by direct recruitment and by transfer against the post of HSST during the period from 2001. In this context, a reply statement filed on behalf of the 2nd respondent in T.A.No.4029/2011 before the Tribunal assumes relevance. In Para.3 therein, it was specifically stated that after the framing of the Special Rules, the ratio of 1:3 has been maintained correctly. In elaboration of this contention, it is stated further in Para.4 that during the period from 16.4.2001 to 15.12.2009, a total of 551 vacancies of HSST (Chemistry) had occurred. Out of the said vacancies, 413 vacancies were reported to the PSC towards the 75% quota. The break up of the same has been specifically given thereunder. It is also stated therein that to maintain the ratio of 25%, 138 vacancies were filled up by effecting by transfer appointment from the department teachers. Though the applicants in T.A.No.4029/2012 disputed the statement as aforesaid, they had not furnished any material in support of their contention and to substantiate their objection. On carefully going through the details given in the reply statement wherein the break up of the reporting of 413 vacancies was given, we are of the view that in the absence of any material to establish that the O.P.(KAT)Nos.29, 157 & 210/2014 -11- said statements are incorrect, there is absolutely no scope for sustaining the objection raised by the petitioners. In other words, in such circumstances, it cannot be said that 413 vacancies available for direct recruitment were not reported to the PSC. If out of 551 vacancies, 413 vacancies were reported during the said period, it can only be said that during the period from 16.4.2001 to 15.12.2009 there was no deviation from the ratio and it was scrupulously followed.
7. We have already taken note of the fact that the petitioners were rank holders in Ext.P1 list published on 7.5.2007 and the said list expired on 6.5.2010. In the said circumstances, the question is what exactly was the number of vacancies occurred in the post of HSST (Chemistry) during the period from 16.12.2009 to 6.5.2010. That apart, the most important question is whether during the said period, qualified HSSTs (Jr.) were available. This is because, if qualified HSSTs (Jr.) were available during the said period for by transfer appointment, there is absolutely no question of effecting any direct recruitment or appointment by transfer from the category of HSA and UPSA/LPSA. The petitioners have taken up a contention that the O.P.(KAT)Nos.29, 157 & 210/2014 -12- appointees under Ext.P13 had not completed their period of probation and they were actually appointed against the vacancies occurred prior to 5.5.2010. In the light of Rule 3(2)(ii), the ratio of 1:3 is to be applied between appointment by transfer and direct recruitment only on the vacancies. In other words, there cannot be any question of application of Rule 5 of Part II of KS & SSR to find out the vacancies available for direct recruitment based on the cadre strength. In fact, the fact that Rule 5 is inapplicable is evident from a bare perusal of Rule 5 of Part II KS & SSR. That apart, the position was made clear in the decision by a Division Bench of this Court in Ajithakumari's case (supra). In the said decision, which was virtually relied on by the petitioners themselves, this Court in unambiguous terms held that Rule 5 of Part II KS & SSR is inapplicable in the case of appointment of HSSTs belonging to Higher Secondary Education State Service. In the said decision, what was assigned as the reason for arriving at such a conclusion is that the cadre strength cannot be worked out as provided under Note 3 under Rule 5 of KS & SSR, as the first method for appointment to the post of HSST is by transfer appointment from HSST (Jr.). On a careful O.P.(KAT)Nos.29, 157 & 210/2014 -13- consideration of Rule 5, it is evident that the said Rule is applicable only with respect to the normal method of appointment. Rule 3(2)(i) of the Rules would reveal that the normal method of appointment to the post of HSST is 'by transfer' from Higher Secondary School Teacher (Jr.) in the subject concerned. If for a particular year, sufficient number of qualified hands in the said category is available for filling up of the entire vacancies, there would not be any question of effecting direct recruitment or giving appointment by transfer from the category of HSA and UPSA/LPSA. Taking into account the said circumstances also, it has to be held that Rule 5 is inapplicable inasmuch as the Rule prescribing the ratio of 1:3 between appointment by transfer and direct recruitment under Rule 3(2)
(ii) of the Rules is not the normal method of appointment. Thus, in any view of the matter, the question of identifying the number of vacancies available for direct recruitment based on cadre strength is out of question in view of the relevant provisions applicable for appointment to the post of HSST. In other words, the ratio has to be applied only with reference to the vacancies. When the exact number of vacancies during the period is not O.P.(KAT)Nos.29, 157 & 210/2014 -14- specifically averred or mentioned in the transfer application and there is nothing on record to ascertain whether sufficient number of qualified persons belonging to the category of HSST (Jr.) was available during the period, we are of the view that it is difficult to appreciate the contention of the petitioners. True that the contention of the petitioners is that the appointees under Ext.P13 were adjusted against the vacancies occurred prior to 5.5.2010 and that they were not fully qualified for getting appointment by transfer owing to the fact that they had not completed successfully the period of probation. As noticed hereinbefore, it is to buttress the said contention that they relied on the decision of this Court in Ajithakumari's case (supra). Essentially, the first question is whether we could go into that question at all. This is because, though the petitioners are challenging the appointments effected under Ext.P13 and the number of appointees are very definite and also details of such appointees are also available in Ext.P13, they had not chosen to make all the appointees as parties to the said transfer application. The learned counsel for the petitioners submitted that since the Tribunal had permitted them to take out notice by paper O.P.(KAT)Nos.29, 157 & 210/2014 -15- publication and thereafter they had taken notice by paper publication in OP(KAT)No.29/2014, it has to be treated as sufficient compliance with the mode of service of notice. In other words, it is contended that in such circumstances, the petitioners are entitled to mount challenge and pursue with the challenge against the appointment of HSSTs (Jr) under Ext.P13.
8. At the first blush, the aforesaid contention appears to be attractive and acceptable. Certainly, while considering the sustainability of the contention, the provisions under Rule 148 of the Rules of the High Court of Kerala, 1971, the relevant provisions under the Administrative Tribunal's Act and the Kerala Administrative Tribunal (Procedure) Rules, 2010 have to be looked into. Rule 148 of the Rules of the High Court of Kerala reads thus:
"148. Addition of parties.- All persons directed affected shall be made parties to the petition. Where such persons are numerous, one or more of them with the permission of the court on application made of the purpose be impleaded on behalf of or for the benefit of all persons so affected; but notice of the Original Petition shall, on admission, be given to all such persons either by personal service or by public O.P.(KAT)Nos.29, 157 & 210/2014 -16- advertisement as the Court in each case may direct.
Provided that in cases where the State Government is a party, the Secretary to the Government Department concerned shall be arrayed as party representing the Government.
Provided further that if the subject matter of the petition relates to two or more Government Departments or, if the petition is of such a nature, the disposal of which warrants information from two or more Government Departments, the Chief Secretary to Government and the Secretaries to those Government Departments shall be made as party representing the Government."
True that under Rule 148, when the number of persons directly affected are numerous, one or more of them may with the permission of the Court be impleaded on behalf of or for the benefit of all persons so affected. However, in such eventuality, besides taking notice to those persons impleaded, public advertisement in the manner directed by Court has to be taken out. In the context of the situation, it is relevant to refer to Para.62 the decision of the Hon'ble Apex Court reported in Siraj v. High Court of Kerala (2006 (2) KLT 923). It reads thus:
"62. The Writ Petitions have also to fall on the ground of absence of necessary parties in the party array. O.P.(KAT)Nos.29, 157 & 210/2014 -17- 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 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-joinder of necessary parties also."
9. In that case, the list in question contained 70 persons. True that some of them were included in representative capacity. The Apex Court found that since the candidates would be displaced from their present ranks, it was imperative that all the candidates in the select list should have been impleaded as parties to the Writ Petition, as otherwise, they would be affected O.P.(KAT)Nos.29, 157 & 210/2014 -18- without being heard. It is categorically found that publication in the newspaper would not cure the said defect. The Apex Court went on to hold that when only a specified definite number of candidates who had to be impleaded in contradiction to a large unspecified number of people to be affected, persons are to be impleaded as parties. It was held that Rule 148 of the Rules of the High Court of Kerala, 1971 would be applicable only when very large number of candidates are involved and it may not be able to pinpoint those candidate with details. It is further held that if that is not the position, and identifiable definite number of candidates were not impleaded as parties, such a petition has to fail for non-joinder of necessary parties.
10. In this case, only 39 persons are included in Ext.P13. When the Hon'ble Apex Court held as above while considering the question in respect of a ranked list that contained 70 persons i.e, it cannot be said to be numerous and they ought to have been impleaded as respondents in the Writ Petition, we are of the view that taking into account the number of persons included in Ext.P13, it cannot be said that the said number is numerous so as to justify the action in resorting to Section 148 of the Rules of O.P.(KAT)Nos.29, 157 & 210/2014 -19- the High Court of Kerala, 1971. That apart, the persons included in Ext.P13 are identifiable persons. All the details necessary for identifying the persons are available in the order itself. In such circumstances, in the light of the decision in Siraj's case (supra), merely because paper publication was taken out, it could not be taken that it would cure or it cured the defect.
11. We will examine the question of non-joinder on another angle as well. Essentially, O.P.(KAT)No.29/2014 was filed against an order passed by the Tribunal in T.A.No.4029/ 2012. The learned counsel for the petitioners submitted that the Tribunal had also permitted the petitioners/applicants to take out notice by paper publication, after treating respondents 4 and 5 therein as persons impleaded in representative capacity. The question is whether that would cure the defect. It is submitted by the learned counsel that in terms of the provisions under Rule 10 of the Kerala Administrative Tribunal (Procedure) Rules, 2010, notice by paper publication would constitute sufficient compliance, as it is a recognised mode of service of notice and processes issued by the Tribunal. At the same time, it is to be noted that such a course is permissible only for the purpose of O.P.(KAT)Nos.29, 157 & 210/2014 -20- taking out notice to the respondents. The employment of the expression 'respondents' would undoubtedly reveal that it is a mode of service of notice to the respondents, i.e., persons already impleaded as parties to the T.A./O.A. Transferred to/filed before, the Tribunal. Certainly, a person who is not a party to the Original Petition will not fall under the expression 'respondent'. In such circumstances, it is only worthy to refer to Section 22 of the Administrative Tribunal's Act, 1985.
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 O.P.(KAT)Nos.29, 157 & 210/2014 -21- 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 section 123 and 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. Going by Section 22(3), a Tribunal shall have, for the purposes of discharging its function under the Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 while trying a suit in respect of matters specifically enlisted therein. Section 22(1) provides that the Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908, but shall be guided by the O.P.(KAT)Nos.29, 157 & 210/2014 -22- principles of natural justice and subject to other provisions of the Act and the Rules made by the Central Government. It was further provided that the Tribunal shall have power to regulate its own procedures including the fixing of places and times of its enquiry and deciding whether to sit in public or in private. True that, in the light of the said provision, it could be said that the Tribunal is not bound by the procedure laid down in the CPC and at the same time, the Tribunal shall have power to regulate its own procedure. Certainly, while regulating the said procedure, it has to be guided by the principles of natural justice. Therefore, when the Tribunal regulates its procedure in any matter, it has to ensure that the principles of natural justice are not violated. That apart, the said provision would reveal that the Tribunal is vested with all the powers vested in a civil court under the Code of Civil Procedure, though it is not bound by the procedure laid down in the Code of Civil Procedure. In such circumstances, certainly, it would be open to the Tribunal to regulate its procedure by referring to any provisions under the Code of Civil Procedure, even if such provisions are not proprio vigore apply to the Tribunal or that it is not bound by the procedures laid down in the O.P.(KAT)Nos.29, 157 & 210/2014 -23- Code of Civil Procedure. The relatable provisions under the CPC in regard to the aforesaid subject is Order I Rule 8. Order I Rule 8 of the Code of Civil Procedure provides that where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of all persons so interested. Thus a reading of Order I Rule 8 CPC and Rule 148 of the Rules of the High Court of Kerala, would reveal that both the provisions contemplate adoption of a person where the number of persons are numerous and such numerous persons are having the same interest in a suit or a petition. We have already found that the Hon'ble Apex Court in Siraj's case (supra), wherein the number of persons likely to be affected were 70, virtually held that, that figure could not be said to be numerous making it impossible to implead persons in individual capacity. But, then in this case nobody was impleaded in a representative capacity by the petitioners. That apart, the number 39 cannot be said to be numerous, making it impossible to implead all of them as parties in a particular proceedings. That apart, the details of all such persons are available in Ext.P13 O.P.(KAT)Nos.29, 157 & 210/2014 -24- order itself. Furthermore, it is a fact that the details which would unerringly establish that all of them are having the same interest, are lacking in this case. The details with respect to the dates of appointments of all the persons whose appointments are actually challenged by the petitioners, are not given either in the T.A. or O.A. or in the O.Ps.
13. When the question is whether an appointee under Ext.P13 is a person who had completed the period of probation, the basic factor which is to be furnished is the date of commencement of service of that particular person in the particular category. There is absolutely no pleadings before the Tribunal as also before this Court to treat that all the persons included in the list whose appointments are challenged, were appointed on the same date. It is a fact that there is absolute absence of any averment regarding the dates on which such persons were appointed as HSST (Jr.). Even in case of respondents 4 and 5, there is absolute absence of an averment in that regard. We have already taken note of the fact that regarding the number of vacancies available during the O.P.(KAT)Nos.29, 157 & 210/2014 -25- aforementioned period as also with respect to the date of occurrence of such vacancies, there is absolute absence of any pleadings. It is also to be noted that there is no specific averment in the transfer application as also in the O.As. to the effect that respondents 4 and 5 and the other persons included in Ext.P13 whose appointments are under challenge were appointed as HSST (Jr.) on the same day and they had not completed the period of probation on the occurrence of vacancies. As noticed hereinbefore, the date of occurrence of vacancies are also not specifically mentioned in any of the pleadings by the petitioners. Since the Hon'ble Apex Court held in Siraj's case (supra) that defect due to the failure on the part of the petitioners to implead persons, who are likely to be affected and pushed out from a seniority list, in individual capacity could not be cured by taking out paper publication, we are of the view that the said dictum has to be applied in the facts and circumstances mentioned hereinbefore with equal force or even with more force, taking note of the fact that here persons are likely to be displaced from the post which they are presently holding. It is to be noted that the persons were appointed in the year 2011 and if the O.P.(KAT)Nos.29, 157 & 210/2014 -26- contentions of the petitioners are accepted, it might result in ouster of such appointees from the post which they are presently holding, so as to make available vacancies for accommodating the petitioners. When that be the irresistible impact, the failure on the part of the petitioners to make such persons as parties to the transfer application has to be viewed more seriously. Needless to say that in such circumstances, it has to be held that the petition is bad for non-joinder of necessary parties as well. In such circumstances, in the light of the decision in Siraj's case (supra), it cannot be said that the said defect could be cured by taking out notice by paper publication.
14. For the aforesaid reasons, we are afraid that the contention of the petitioners that some of the appointees under Ext.P13 were ineligible for appointment as HSST at the time of their appointment cannot be gone into, in this proceedings.
15. In the light of the discussion as above, we do not find any reason to interfere with the order of the Tribunal dismissing T.A.No.4029/2012.
We have already taken note of the fact that O.A.Nos.503/2012 and 1556/2012 were dismissed by the O.P.(KAT)Nos.29, 157 & 210/2014 -27- Tribunal relying on the order in T.A.No.4029/2012. Since we have affirmed the order of the Tribunal in T.A.No.4029/2012, the dismissal of O.A.Nos.503/2012 and 1556/2012 rendered relying on the decision in T.A.No.4029/2012 are also to be affirmed. In this context it is also to be noted that in O.A.Nos.503/2012 and 1556/2012, the petitioners had not virtually impleaded any of the appointees in Ext.P13 Government order No.ADB5/7000/HSE/11 dated 25.7.2011 in representative capacity. Even though the petitioner had impleaded in personal capacity two of such appointees, paper publication was not taken out in respect of those persons. At any rate, such a basic defect could not be cured, for the reasons mentioned hereinbefore by taking out paper publication in OP(KAT) Nos.157 & 210/2014. For all these reasons, all the O.Ps. have to fail and accordingly they are dismissed.
Sd/-
C.T. RAVIKUMAR, JUDGE Sd/-
ANIL K. NARENDRAN, JUDGE dsn //True copy// P.S.to Judge