IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
FRIDAY, THE 27TH DAY OF MAY 2022 / 6TH JYAISHTA, 1944
OP (CAT) NO. 29 OF 2022
AGAINST THE ORDER DATED 26.05.2022 IN OA NO.256/2022 OF CENTRAL
ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONER:
DR.AKSALA HAZMI.K.P.
AGED 32 YEARS
D/O.K.A.AKBAR, KUNHIPUVAKADA HOUSE,
KALPENI ISLAND, UT OF LAKSHADWEEP, PIN - 673557
BY ADVS.
P.SANJAY
A.PARVATHI MENON
BIJU MEENATTOOR
PAUL VARGHESE (PALLATH)
P.A.MOHAMMED ASLAM
KIRAN NARAYANAN
PRASOON SUNNY
RAHUL RAJ P.
AMRUTHA M. NAIR
RESPONDENTS:
1 THE HON'BLE ADMINISTRATOR
UT OF LAKSHADWEEP, KAVARATTI,
UT OF LAKSHADWEEP, PIN - 682555
2 THE DIRECTOR OF HEALTH SERVICES
UT OF LAKSHADWEEP, KAVARATTI,
UT OF LAKSHADWEEP, PIN - 682555
3 DR.HAMNAZ BEEGUM
PUTHIYAPURA HOUSE, KADAMATH ISLAND,
UT OF LAKSHADWEEP, PIN - 682556
4 DR.RASEENA S.BAITHUL RIDA
NEAR BSNL, KAVARATTI, UT OF LAKSHADWEEP, PIN - 682555
OTHER PRESENT:
SRI.V.SAJITH KUMAR, SC, LAKSHADWEEP ADMINISTRATION
THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 27.05.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(CAT) No.29 of 2022 2
ALEXANDER THOMAS & SHOBA ANNAMMA EAPEN, JJ.
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O.P.(CAT) No.29 of 2022
[against the order dated 26.05.2022 in O.A. No.256/2022 on the file of the CAT, Ekm Bench]
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Dated this the 27th day of May, 2022
JUDGMENT
Alexander Thomas, J.
The prayers in the instant original petition filed under Articles 226 & 227 of the Constitution of India are as follows:-
"(i) call for the records relating to the appointment of Dental Surgeons (contract basis) by the respondents 1 and 2 in the islands of Lakshadweep and peruse the same;
(ii) issue a writ in the nature of Certiorari and set aside the appointments of Dental Surgeons (contract basis) pursuant to notification F.No.5/39/2021-DHS dated 05/04/2021;
(iii) Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case to meet the ends of justice; And
(iv) Award costs of and incidental to this Application."
2. Heard Sri.P.Sanjay, learned counsel appearing for the petitioner in the original petition/applicant in the original application and Sri.V.Sajith Kumar, learned Standing counsel for the Lakshadweep Administration, appearing for the respondents 1 & 2 in the original O.P.(CAT) No.29 of 2022 3 petition/respondents 1 & 2 in the original application. In the nature of the orders proposed to be passed by this Court in this case, notices to contesting respondents 3 & 4 will stand dispensed with.
3. The above original petition has been arisen out of Ext.P5 original application, O.A. No.256/2022, filed by the present petitioner before the Central Administrative Tribunal, and the prayers in the said O.A. are as follows:-
"(i) Call for the records relating to Annexure A-5 and A-10;
(ii) Set aside or quash Exts.A-5 and A-10 orders issued by the 2 nd Respondent.
(iii) Direct the respondents to fill up the vacancies for Dental Surgeons on contract basis only as per Annexure A-3 rank list.
(iv) Award costs of and incidental to this Application;
(v) Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case."
4. The interim prayer sought for in the O.A. is as follows:-
"Pending final disposal of the OA the applicant most humbly prayed that this Hon'ble Tribunal be pleased to stay Annexuxre A-9 and all further proceedings pursuant to it pending disposal of the OA in the interest of justice."
5. The grievance of the petitioner is that the Tribunal has not, so far, passed orders on the interim relief sought for by the petitioner in the original application, eventhough the plea for interim relief has come up for consideration and Ext.P4 proceedings dated 26.05.2022 has been passed thereon adjourning the plea on 14.06.2022. O.P.(CAT) No.29 of 2022 4
6. The brief of the case, set up in the above matter, reads as follows:-
That, the petitioner is a qualified Dental Surgeon and had applied in pursuance of Anx.A1 selection notification dated 27.08.2021, for appointment to the post of Dental Surgeon on contract basis. The number of posts notified in Anx.A1 notification dated 27.08.2021 is 9. After due process of selection the petitioner has been duly included in Anx.A3 rank list dated 29.09.2021 as rank No.8 therein. Further that, rank Nos.1 to 5 as per Anx.A3 rank list have already been appointed to the abovesaid post as per Anx.A4 order dated 29.09.2021, in respect of 5 posts out of the total 9 posts, notified as per Anx.A1 selection notification. That thereafter, the respondent Administration, without filling up the balance 4 posts out of the total 9 posts covered by Anx.A1 notification, has issued another selection notification as per Anx.A5 dated 05.04.2022, changing some of the eligibility conditions earlier notified in Anx.A1 and notifying 4 posts of Dental Surgeons therein. The petitioner had submitted Anx.A6 representation dated 11.04.2022 before the respondents pointing out that the remaining 4 candidates included in Anx.A3 rank list may be appointed or, at any rate, she may be appointed in the said post considering her rank No.8 therein. But O.P.(CAT) No.29 of 2022 5 the said plea was not acted upon and which, in turn, has resulted in Anx.A8 final order dated 21.04.2022, disposing the previous O.A. No.195/2022 filed by the petitioner before the Tribunal, whereby it was ordered that the competent authority among the respondents to consider and take a decision on the plea of the petitioner in Anx.A6 representation before final selection is made in pursuance of Anx.A5 selection notification dated 05.04.2022. Still the respondents have not passed any orders on Anx.A6 representation. It is in these circumstances that the petitioner has approached the Tribunal by filing the instant Ext.P5 O.A. No.256/2022 with the aforementioned prayers. That, prior thereto the respondents have included 4 candidates in the rank list in pursuance of the new notification as per Anx.A5 and in whose favour Anx.A10 appointment order dated 24.05.2022 has been issued by the respondents. The abovesaid Anx.A10 appointment order has also been challenged in the present Ext.P5 O.A. That, the Tribunal has not so far passed any orders on the interim relief sought for by the petitioner and, on the other hand, has adjourned the case to 14.06.2022, as evident from Ext.P5 proceedings dated 26.05.2022.
7. It is urged by Sri.P.Sanjay, learned counsel appearing for the petitioner that the impugned action of the respondents is vitiated by O.P.(CAT) No.29 of 2022 6 illegality, unreasonableness and impropriety. That, due process of selection was conducted in accordance with Anx.A1 selection notification dated 27.08.2021, which resulted in Anx.A3 rank list issued on 29.09.2021, in which the petitioner has been duly included as rank No.8 therein. That, 5 out of the 9 candidates therein have been duly appointed on the same day viz., 29.09.2021, as per Anx.A4 appointment order. No reasons have been stated for not making appointments to the balance 4 vacancies, from among the remaining candidates as per rank Nos.6 to 9, in which the petitioner has been included as rank No.8. The respondents have no case that they have taken a policy decision not to fill up the posts, on the other hand, they have chosen to issue a selection notification as per Anx.A5 for the very same remaining 4 posts and that too changing the norms of eligibility conditions. No reasonable grounds are disclosed in Ext.P1, etc. That, the Tribunal has refused to pass any orders on the interim relief application and that this Court may interfere in the matter.
8. Per contra, Sri.V. Sajith Kumar, learned Standing counsel for the Lakshadweep Administration, appearing for respondents 1 & 2 would submit that sufficient grounds have stated in Ext.P1 rejection order. Further that, the petitioner has chosen not to respond in O.P.(CAT) No.29 of 2022 7 pursuance of the impugned notification as per Anx.A5, otherwise it could have been considered. Rank Nos.6 & 7 included in Anx.A3 rank list arising out of Anx.A1 notification have also participated in pursuance of the new selection notification as per Anx.A5 and they have been duly included in Anx.A10 appointment order and they are two among the 4 candidates included in Anx.A10 appointment order, issued in pursuance of the new notification as per Anx.A5. Further that, the respondents have taken a conscious decision to change the eligibility conditions in the new notification as per Anx.A5, etc. and that it is for the petitioner to raise all his contentions before the Tribunal, etc.
9. Sri.P.Sanjay, learned counsel appearing for the petitioner would submit that the first two candidates included in Anx.A10 order have already been duly appointed and joined duty in pursuance of the new notification as per Anx.A5 and the balance 2 vacancies have not been filled up so far.
10. After hearing both sides we are of the view that these are all matters that both sides should urge before the Tribunal. However, the Tribunal should have passed orders on the interim relief application, instead of merely adjourning the case as per Ext.P5.
11. Sri.V.Sajith Kumar, learned Standing counsel appearing for O.P.(CAT) No.29 of 2022 8 1st & 2nd respondents -Lakshadweep Administration would submit, on the basis of instructions, that the respondents would immediately file their reply before the Tribunal, within 3 weeks, etc.
12. In such circumstances it is ordered that the Tribunal will immediately take up the interim relief plea of the petitioner made in the O.A. for consideration without any further delay. The Tribunal should afford reasonable opportunity of being heard to both sides and take a considered decision on the interim relief sought for by the petitioner in the application, without much delay, at any rate, within a period of 3 to 4 weeks. In a case of this nature, we feel that, the subject matter of the lis will have to be protected and accordingly it is also ordered that one among the 4 vacancies covered by Anx.A10 shall be kept unfilled until the Tribunal passes orders on the application for interim relief, filed by the petitioner in the original application.
13. We make it clear that the abovesaid direction has been issued by us only to protect and preserve the subject matter of the lis and it is for the Tribunal to independently decide the issue, after hearing both sides.
14. The Registry will forward a copy of this judgment to the Central Administrative Tribunal, which is dealing with the instant O.A. O.P.(CAT) No.29 of 2022 9 No.256/2022, for necessary information. The learned Standing counsel for the respondent Lakshadweep Administration will also immediately forward a copy of this judgment to respondents 1 & 2, for necessary information and compliance.
With these observations and directions, the above original petition will stand disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE Sd/-
SHOBA ANNAMMA EAPEN, JUDGE Skk//31052022 O.P.(CAT) No.29 of 2022 10 APPENDIX OF OP (CAT) 29/2022 PETITIONER'S EXHIBITS:-
Exhibit P1 TRUE COPY OF THE ORDER F NO.5/39/2021DHS DATED 23/05/2022 OF THE 2ND RESPONDENT.
Exhibit P2 A TRUE COPY OF THE COMMUNICATION F
NO.5/39/2021-DHS DATED 02-05-2022 ISSUED
BY THE 2ND RESPONDENT SCHEDULING THE
INTERVIEW.
Exhibit P3 TRUE COPY OF THE COMMUNICATION
F.NO.5/31/2021DHS DATED 20.05.2022 ISSUED
BY THE 2ND RESPONDENT SCHEDULING A
SEPARATE INTERVIEW FOR THE 4TH
RESPONDENT.
Exhibit P4 TRUE COPY OF THE ORDER SHEET PERTAINING
TO O.A.NO. 256 OF 2022 OF THE CENTRAL
ADMINISTRATIVE TRIBUNAL, ERNAKULAM
CONTAINING ORDER DATED 26-5-2022.
Exhibit P5 TRUE COPY OF OA/180/00 256 OF 2022 OF
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM.