Kerala High Court
Kerala Administrative Tribunal ... vs Union Of India on 11 January, 2022
WP(C) No.23776/2021 1/9
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
Tuesday, the 11th day of January 2022 / 21st Pousha, 1943
IA.NO.4/2022 IN WP(C) NO. 23776 OF 2021(S)
PETITIONERS/WRIT PETITIONERS:
1. THE KERALA ADMINISTRATIVE TRIBUNAL ERNAKULAM ADVOCATES ASSOCIATION
(KATEAA), REPRESENTED BY ITS SECRETARY, ADVOCATE T.R. RAJESH, 3RD
FLOOR, KERALA ADMINISTRATIVE TRIBUNAL, MERCURY CHAMBERS, SADANAM
ROAD, JOSE JUNCTION, KOCHI, KERALA - 682 016.
2. R.K. MURALIDHARAN, AGED 56, S/O. DAMODARAN NAIR, ADVOCATE, T/19,
EMPIRE BUILDING, KOCHI, KERALA - 682 018.
RESPONDENTS/RESPONDENTS 1-4 AND PROPOSED ADDITIONAL RESPONDENT 5:
1. UNION OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT OF INDIA,
MINISTRY OF LAW & JUSTICE (DEPARTMENT OF JUSTICE), JAISELMER HOUSE,
26, MANSION ROAD, NEW DELHI - 110 011.
2. THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF PERSONNEL, PUBLIC
GRIEVANCES AND PENSION, (DEPARTMENT OF PERSONNEL AND TRAINING), 102,
NORTH BLOCK, CENTRAL SECRETARIAT, NEW DELHI - 110 001.
3. THE STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY
TO GOVERNMENT, PERSONNEL AND ADMINISTRATIVE REFORMS (RULES)
DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA - 695
001.
4. THE SELECTION COMMITTEE (SELECTION OF MEMBERS FOR THE KERALA
ADMINISTRATIVE TRIBUNAL), HIGH COURT OF KERALA, ERNAKULAM, KOCHI,
KERALA - 682 031, REPRESENTED BY ITS CHAIRMAN.
5. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT,
GENERAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, KERALA-695 001.
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to stay the operation
of Exhibit P11 and all further proceedings pursuant to Exhibit P11 pending
disposal of the writ petition.
This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof, and upon hearing the arguments
of SRI.RENJITH THAMPAN (SENIOR ADVOCATE) along with M/S.VINOD MADHAVAN,
M.V.BOSE & SHARATH S.PUTHENPARAMPAN, Advocates for the petitioners in
IA/WPC and of SRI.S. MANU, ASSISTANT SOLICITOR GENERAL OF INDIA for R1 &
R2, the court passed the following:
P.T.O.
WP(C) No.23776/2021 2/9
A.MUHAMED MUSTAQUE &
SOPHY THOMAS, JJ.
------------------------------------
I.A Nos.1,2,3 & 4 of 2022 &
W.P. (C) No.23776 of 2021
------------------------------------
Dated this the 11th day of January, 2022
ORDER
A.Muhamed Mustaque, J.
I.A No.1 of 2022
Allowed. The petitioners shall produce the amended writ
petition within two weeks.
I.A No.2 of 2022
Allowed. Additional document accepted.
I.A No.3 of 2022
Allowed. Additional respondent impleaded.
I.A No.4 of 2022
This application has been filed seeking a direction to stay
the operation of Ext.P11, pending disposal of the writ petition.
2. Ext.P11 is a notification issued by the Government of
Kerala for selection to the post of judicial members in the
Kerala Administrative Tribunal. The total number of judicial
WP(C) No.23776/2021 3/9
members are two. The date of vacancy arose on 19.07.2021.
The writ petition was filed challenging the second proviso to
Section 3(3) of Chapter II of the Tribunals Reforms Act, 2021
and for such other reliefs. The second proviso to Section 3(3)
refers to the constitution of the Search-cum-Selection
Committee for a State Administrative Tribunal. The Search-
cum-Selection Committee consists of the Chief Justice of the
High Court, Chief Secretary of the State Government and the
Chairman of the Public Service Commission.
3. According to the learned Senior Counsel, the above
provision is a threat to judicial independence. It is submitted
that similar provisions have already been declared as ultra
vires by the judgment of the Apex Court in Madras Bar
Association vs. Union of India and another (2020 KHC
6662). Learned Senior Counsel particularly referred to
paragraph 29 of the above judgment, and argued that
Secretaries of the sponsoring departments should not be
members of the Search-cum-Selection Committee. Learned
Senior Counsel also referred to the judgment in Madras Bar
Association vs. Union of India and another (2014 KHC
WP(C) No.23776/2021 4/9
4629) wherein, in paragraph 88, the Apex Court held that
Section 7 of National Tax Tribunal Act, 2005 is constitutionally
invalid for the reason of inclusion of Secretaries of
Departments of the Central Government in the process of
selection and appointment of the Chairperson and members of
the National Tax Tribunal. It is further argued that the Apex
Court, in the above judgment, held that the above statutory
provision is constitutionally invalid for the reason that, it is not
possible to accept a party to a litigation to participate in the
selection process. Learned Senior Counsel also placed reliance
on the judgment of the Apex Court in S.P.Sampath Kumar
vs. Union of India and Others (1987 KHC 827) and
particularly read the observations in paragraph 6, and
submitted that service matters coming before the
Administrative Tribunal are against the Government or any of
its officers and therefore, it would not be conducive to judicial
independence to leave unfettered and unrestricted discretion
in the executive to appoint the Chairman, Vice Chairman and
administrative members. According to the learned Senior
Counsel, the Constitution never envisaged executive having
WP(C) No.23776/2021 5/9
control of judicial function. If the appointment itself starts
with such control, it would lead to disastrous consequences, as
no member can function without compromising judicial
independence. Learned Senior Counsel particularly pointed
out on the powers for re-appointment also. It is submitted
that the members would be at the mercy of the Secretary of
the Department of the Government seeking their
reappointment. It is further submitted that the Administrative
Tribunal themselves will have to be restrained from initiating
contempt action against persons who have a role in the
process of selection, appointment or re-appointment. It is
submitted that, since the Apex Court has already laid down the
law, the provisions as above are ex facie illegal and therefore,
this Court will have to restrain the selection pursuant to
Ext.P11 notification. It is also submitted that these statutory
provisions would violate the basic structure of the Constitution,
as independence and impartiality of the judiciary is cardinal in
the constitutional scheme to ensure separation of power. This
Court will have to act against such selection. It is further
submitted that once selection is over and appointments are
WP(C) No.23776/2021 6/9
made, it would be difficult to reverse such selection, and many
orders and judgments likely to be rendered by such members
also cannot be reversed.
4. Learned Senior Counsel further placed reliance on the
judgment of the Apex Court in Health for Millions vs. Union
of India and others (2013 KHC 4657) to argue that, there is
no difficulty for constitutional court in granting interim relief,
when the court is convinced of ex facie illegality of law.
5. It is to be noted that, similar procedure for selection
is in vague since 2011 onwards for making appointments to
the Kerala Administrative Tribunal. The present members and
the members who have held the post in past were selected
through the selection process consisting of Secretaries of the
Departments.
6. The vires of the above provision are being examined
by the Apex Court and it is submitted by the learned Assistant
Solicitor General that, one of the cases has also been sought
to be transferred to Apex Court.
7. It may not be proper for this Court, at this stage, to
form an opinion in regard to the vires of the statutory
WP(C) No.23776/2021 7/9
provision especially since such procedure for selection was in
force for more than a decade. The Selection Committee is
headed by Chief Justice as Chairman. We cannot simply
ignore the fact of existence of institutional norms in place to
select members to the posts of Kerala Administrative Tribunal.
The institutional norms always would have a dominant role in
selecting a candidate to the post. The individuals so selected
need to possess integrity to hold such office. At the moment,
we cannot say that the Selection Committee headed by the
Chief Justice would compromise with such institutional norms
while selecting a candidate. We cannot say that, irreparable
loss would be caused if the selection procedure is permitted to
go on. The court, in such circumstances, should consider the
balance of convenience. If selection process is put on hold,
certainly, it would affect the functioning of the Tribunal. It is
to be noted that, the judicial members are now permitted to
continue after the expiry of the period, based on the interim
orders of this Court as selection to the above posts are long
overdue.
In such circumstances, we decline the relief. Accordingly,
WP(C) No.23776/2021 8/9
I.A No.4 of 2022 is dismissed.
W.P.(C) No.23776 of 2021
Post on 27.01.2022 along with connected cases. The
interim order permitting the judicial members to continue as
members of the Kerala Administrative Tribunal will continue till
then.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
SOPHY THOMAS
JUDGE
smp
11-01-2022 /True Copy/ Assistant Registrar
WP(C) No.23776/2021 9/9
APPENDIX OF WP(C) 23776/2021
Exhibit P11 TRUE COPY OF THE NOTIFICATION NO.CDN5/108/2021/GAD,
DATED 16.12.2021, ISSUED BY THE GOVERNMENT INVITING
APPLICATIONS FOR THE 2 POSTS OF JUDICIAL MEMBERS IN THE
KERALA ADMINISTRATIVE TRIBUNAL.
