Kerala High Court
Bineeb Kumar vs The State Of Kerala on 26 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943
WP(C).No.5568 OF 2021(U)
PETITIONER:
BINEEB KUMAR
AGED 50 YEARS
S/O.DIVAKARA PANICKER, DRIVER, GOVERNMENT
INDUSTRIAL TRAINING INSTITUTE, MALAYINKEEZHU,
THIRUVANANTHAPURAM 695 571
RESIDING AT 'NAYANAM', OORUTTAMBALAM P.O.,
THIRUVANANTHAPURAM 695 507
BY ADVS.
SRI.R.T.PRADEEP
SMT.M.BINDUDAS
SRI.K.C.HARISH
RESPONDENTS:
1 THE STATE OF KERALA
REP.BY CHIEF SECRETARY,
GOVERNMENT OF KERALA, SECRETARIAT,
THIRUVANANTHAPURAM 695 001
2 THE SECRETARY TO GOVERNMENT OF KERALA
DEPARTMENT OF LABOUR AND SKILL,
SECRETARIAT, THIRUVANANTHAPURAM 695 001
3 TRAINING DIRECTOR
TRAINING DIRECTORATE, DEPARTMENT OF INDUSTRIAL
TRAINING, THOZHIL BHAVAN,
THIRUVANANTHAPURAM 695 003
OTHER PRESENT:-
NISHA BOSE GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-03-
2021, THE COURT ON 26-03-2021 DELIVERED THE FOLLOWING:
W.P.(C).No.5568/2021
2
JUDGMENT
Dated this the 26th day of March 2021
1. The writ petition is filed seeking the following reliefs:-
"i.To issue a writ of certiorari or any other appropriate writ order
or direction to quash Exhibit P12 so far it relate to the post of
Motor Driver;
ii.To issue a writ of mandamus or any other appropriate writ
order or direction to the respondents to re-notify Exhibit P9 as
such without tinkering with the qualifications of SSLC and NTC in
the concerned trade to the post of Motor Driver and Note-1
appended therein within such time fixed by this Hon'ble Court."
2. The Registry has raised a preliminary objection that the writ
petition is not maintainable before this Court and has to be
filed before the Kerala Administrative Tribunal. The learned
counsel for the petitioner submits that in view of the definition
of service matters under the Administrative Tribunals Act,
1985 as also the specific provision in Section 19 thereof, an
original application can be filed before the KAT only against
any order pertaining to any matter within the jurisdiction of
the Tribunal and that since the petitioner's prayer is for a
consideration of his objections to the special rules, an O.A
cannot be filed before the Tribunal. Relying on the decision of
W.P.(C).No.5568/2021
the Apex Court in Chandra Kumar v. Union of India and
others [AIR 1997 SC 1125], it is contended that the
jurisdiction of the High Court under Article 226 of the
Constitution of India cannot be ousted by the provisions of the
Administrative Tribunals Act and that the prayers as sought
for by the petitioner can be agitated only before this Court.
3. The learned Government Pleader would, on the other hand,
contend that the petitioner, who is a driver in the Industrial
Training Department is essentially raising a challenge against
Exhibit P12 Rules. It is contended that in the light of Section
15 of the Administrative Tribunals Act, the power of this Court
to consider such an issue stands transferred to the State
Administrative Tribunal and it is only on an order adverse to
the petitioner's interest being passed by the Administrative
Tribunal that the petitioner would have a right to approach
this Court by filing an OP(KAT). Relying on the decision of
the Apex Court in Chandra Kumar's case (supra) itself, the
learned Government Pleader would contend that the court of
the first instance in respect of a service matter relating to a
W.P.(C).No.5568/2021
Government servant is the Tribunal and the Apex Court has
recognised the power of judicial review as against decisions
of the Administrative Tribunal. It is stated that paragraph 93
of the judgment deals with the challenge to the vires of parent
legislation alone as one which the tribunal cannot consider
and the challenge to provisions of the Special Rules as is made
by the petitioner is specifically a matter within the jurisdiction
of the Tribunal.
4. Having considered the contentions advanced, I find that the
State Administrative Tribunals are established in pursuance of
the constitutional mandate under Article 323A of the
Constitution of India specifically for the adjudication of
disputes and complaints with regard to recruitment and
conditions of service of persons appointed to public services
and posts in connection with the affairs of the State. Section
15 of the Act specifically provides for the exercise of all
jurisdiction, powers and authority exercisible immediately
before the appointed date, by all courts (except the Supreme
Court) in relation to all service matters by the State
W.P.(C).No.5568/2021
Administrative Tribunal. If that be so, the contention of the
petitioner that Section 19 restricts the petitioner's right is a
fallacious argument. Since what stands transferred is the
jurisdiction of this Court to consider service matters as well,
the Tribunal would be perfectly within its powers in
considering the prayers as are sought for by the petitioner.
5. Further the Apex Court in Chandra Kumar's case has
specifically considered the issue in terms of Article 323A and
226 of the Constitution of India and has held that tribunals are
competent to hear the matters where the vires of statutory
provisions are challenged, though they cannot act as
substitutes for the High Courts and Supreme Court. The
Tribunals have been held to have the power to test the vires of
subordinate legislations and rules, except the vires of their
parent statute.
6. It was further held that the tribunals will act as only courts of
the first instance in respect of areas of law for which they are
constituted. It was held that it will not be open for litigants to
W.P.(C).No.5568/2021
directly approach the High Court even in cases where the
question of vires of statutory legislation except as mentioned
by overlooking the jurisdiction of the Tribunal.
7. In the above view of the matter, I am of the opinion that this
writ petition is not maintainable. The petitioner has to
approach the KAT at the first instance. Writ petition fails and
the same is accordingly dismissed, without prejudice to the
contentions of the petitioner on merits.
Sd/-
Anu Sivaraman, Judge
sj
W.P.(C).No.5568/2021
APPENDIX
PETITIONER'S EXHIBITS:-
EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER
DATED 26.11.1997 BY DEPARTMENT OF
INDUSTRIAL TRAINING.
EXHIBIT P2 TRUE COPY OF THE RECOMMENDATION DATED
17.11.2004 FROM 3RD RESPONDENT TO 2ND
RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE REPRESENTATION OF
PETITIONER DATED 6.4.2009 GIVEN BEFORE
GOVERNMENT.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED
19.10.2009 IN W.P.(C) NO.18800/2009
EXHIBIT P5 TRUE COPY OF THE G.O.(RT)
NO.89/2010/LABOUR DATED 15.1.2010 BY
2ND RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED
3.6.2011 IN W.P.(C) NO.7765/2011
EXHIBIT P7 TRUE COPY OF THE G.O.(MS)
NO.31/2016/LABOUR DATED 5.2.2016
EXHIBIT P8 TRUE COPY OF THE COMMUNICATION DATED
20.5.2017 BY 3RD RESPONDENT SEEKING
CLARIFICATION FROM GOVERNMENT.
EXHIBIT P9 TRUE COPY OF THE DRAFT OF KERALA
CRAFTSMEN TRAINING SUBORDINATE SERVICE
RULES 2014 FOR CTS AND COE WHICH IS NIL
DATED.
EXHIBIT P10 TRUE COPY OF THE REPRESENTATION MADE BY
PETITIONER DATED 23.2.2018 BEFORE THE
1ST RESPONDENT
EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED
10.12.2018 IN W.P.(C) NO.12394/2018.
W.P.(C).No.5568/2021
EXHIBIT P12 TRUE COPY OF THE G.O.(P)
NO.136/2019/LBR DATED 21.12.2019
True copy
PS to Judge
