Kerala High Court
Sindhu. R vs State Of Kerala on 17 March, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 17TH DAY OF MARCH 2022 / 26TH PHALGUNA, 1943
OP(KAT) NO. 84 OF 2022
AGAINST THE ORDER/JUDGMENT IN OA 331/2022 OF KERALA ADMINISTRATIVE
TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/APPLICANTS:
1 SINDHU. R, AGED 43 YEARS
W/O. BABU P.R, S.C. PROMOTER, VECHOOR PANCHAYATH,
VAIKOM, KOTTAYAM - 686144, RESIDING AT KARTHIKA,
KUDAVECHOOR P.O, VAIKOM, KOTTAYAM - 686144.
2 RUPESH KUMAR S, AGED 39 YEARS
S/O. SASI, S.C. PROMOTER, ALAPPUZHA MUNICIPALITY,
ALAPPUZHA AMBALAPPUZHA BLOCK, ALAPPUZHA - 688003. ,
RESIDING AT VALAPPILCHIRA, PALLATHURUTHY, PAZHAVEEDU
P.O, ALAPPUZHA - 688009.
3 RENUKA MANOJ, AGED 48 YEARS
W/O. MANOJKUMAR, S.C. PROMOTER, CHENNAM PALLIPPURAM
PANCHAYAT BLOCK THYKKATTUSSERRY, ALAPPUZHA - 688526,
RESIDING AT VENUE NIVAS, THIRUNELLOOR P.O, ALAPPUZHA -
688541.
4 PREETHA P, AGED 48 YEARS
W/O. SUDAKARAN, S.C.PROMOTER, AROOKUTTY PANCHAYAT,
BLOCK THYKKATTUSSERY, ALAPPUZHA - 688526, RESIDING AT
PUTHANTHARA, NADUVATHU NAGAR P.O, ALAPPUZHA - 688526.
5 SHEEBAKUMARY V.S, AGED 43 YEARS
W/O. PRATHAPAN K.V, S.C. PROMOTER, PANAVALLY
PANCHAYATHU, BLOCK THYKKATTUSSERY, ALAPPUZHA - 688526.,
RESIDING AT KAREETHARA PUTHUVALNIKARTH, PANAVALLY P.O,
ALAPPUZHA DISTRICT.
6 SUMA P.S., AGED 48 YEARS
W/O. SALIM M.T, S.C.PROMOTER, VELIYANNOOR GRAMA
PANCHAYATH, UZHAVOOR BLOCK PANCHAYAT, KOTTAYAM -
686633, RESIDING AT MULAYANICKAL HOUSE, PUTHUVELY P.O,
KOTTAYAM - 686636.
7 SAIRA K.SOMAN,AGED 37 YEARS
W/O. MANOJ, S.C. PROMOTER, KADAPLAMATTOM GRAMA
PANCHAYAT, UZHAVOOR BLOCK PANCHAYAT., KOTTAYAM 686633,
RESIDING AT KARROTTUVALYA CHIRAYIL HOUSE, ELACKAD P.O,
KOTTAYAM - 686587.
8 JAYASREE R, AGED 40 YEARS
W/O. SALIN R, S.C. PROMOTER, CHERTHALA MUNICIPALITY,
OP(KAT) NO. 84 OF 2022
-2-
KANJIKUZHI BLOCK, S.N. PURAM - 688682, RESIDING AT
KOTHAKATTUVELI (H), CHERTHALA P.O, ALAPPUZHA - 688524.
9 RETHI C.S., AGED 46 YEARS
S/O. GOPI T, S.C. PROMOTER, SCHEDULED CASTE
DEVELOPMENT OFFICE, KOIPURAM, ERAVIPEROOR GRAMA
PANCHAYATH, PATHANAMTHITTA DISTRICT, RESIDING AT
CHURALLOOR HOUSE, VALLAMKULAM EAST P.O, THIRUVALLA,
PATHANAMTHITTA - 689541.
BY ADVS.
KALEESWARAM RAJ
VARUN C.VIJAY
THULASI K. RAJ
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF
SCHEDULED CASTE DEVELOPMENT, SECRETARIAT,
THIRUVANANTHAPURAM - 695001.
2 THE SECRETARY TO GOVERNMENT.
LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM - 695001.
3 DIRECTOR OF SCHEDULED CASTE DEVELOPMENT
DIRECTORATE OF SCHEDULED CASTE DEVELOPMENT OFFICE,
VIKAS BHAVAN, THIRUVANANTHAPURAM - 695033, KERALA.
4 DISTRICT SCHEDULED CASTE DEVELOPMENT OFFICER
DISTRICT SCHEDULED CASTE DEVELOPMENT OFFICE, 1ST
FLOOR, MINI CIVIL STATION, ALAPPUZHA - 688013, KERALA.
5 DISTRICT SCHEDULED CASTE DEVELOPMENT OFFICER
DISTRICT SCHEDULED CASTE DEVELOPMENT OFFICE,
COLLECTORATE, KOTTAYAM - 686002, KERALA.
6 DISTRICT SCHEDULED CASTE DEVELOPMENT OFFICER
DISTRICT SCHEDULED CASTE DEVELOPMENT OFFICE, ADOOR,
PATHANAMTHITTA - 689645, KERALA.
SRI.B.UNNIKRISHNA KAIMAL, SR.GOVT.PLEADER
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 17.03.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(KAT) NO. 84 OF 2022
-3-
ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
=========================
O.P.(K.A.T.) No. 84 of 2022
(Arising out of impugned order dated 08.03.2022 in
O.A. No.331 of 2022, of the KAT, Tvm)
=========================
Dated this the 17th day of March, 2022
JUDGMENT
Ext.P2 interim order dated 08.03.2022, rendered by the Kerala
Administrative Tribunal, Thiruvananthapuram Bench, in the instant
O.A.No.331/2022, is under challenge in the instant O.P. filed under Article
227 of the Constitution of India. The petitioners in the O.P are the
applicants in the above said O.A., and the respondents in the O.P are the
respondents in the O.A. The prayers sought for in the instant O.P are as
follows:
"i) To allow this O.P.(KAT) and to set aside Exhibit P2
order dated 08.03.2022 in O.A.331/2022 to the extent to
which it does not stay the operation and implementation
of Annexure A5 notification and to grant the interim relief
as sought for in O.A. 331/2022;
ii) And to issue such other order or direction as this
Hon'ble Court may deem fit and proper in the facts and
circumstances of the case."
2. Heard Sri. Kaleeswaram Raj, learned Advocate, instructed and ably
OP(KAT) NO. 84 OF 2022
assisted by Sri. Varun C.Vijay, learned counsel appearing for the petitioners
in the O.P/applicants in the O.A, and Sri. B.Unnikrishna Kaimal, learned
Senior Government Pleader, appearing for the respondents in the
O.P/respondents in the O.A.
3. Prayers in the instant Ext.P1 O.A.No.331/2022, before the Kerala
Administrative Tribunal, Thiruvananthapuram Bench, are as follows:
"i. To set aside Annexure A5 notification as unjust, illegal
and arbitrary.
ii. In the alternative, declare that the applicants are also
entitled to be considered in the selection process pursuant
to Annexure A5 notification and direct the respondents to
consider the applicants as well pursuant to Annexure A5
notification;
iii. To declare that persons who are above 40 years are also
eligible to apply for the post of SC promoters and
Annexure A5 is struck down;
iv. To direct the respondents to pass orders for issuance of
a fresh notification without excluding persons like the
applicants and without imposing any age bar;
v. To grant such other reliefs as this Hon'ble Tribunal may
deem fit and proper in the circumstance of the case."
4. The Tribunal, after hearing both sides has rendered the impugned
Ext.P2 interim order dated 08.03.2022 in the instant O.A, wherein, it has
been ordered that, though the applicants are age barred going by the terms
and conditions of the impugned Annexure A5 selection notification, issued
by the Director of Scheduled Caste Development, Government of Kerala,
OP(KAT) NO. 84 OF 2022
the 3rd respondent, for selection to the post of Scheduled Caste Promoter,
they may be permitted to submit their applications in those selection
notification, and that though the last date of submission for the application
is over, the application if filed shall be accepted by the respondents, if it is
otherwise in order. The implication of the said interim order is that, even if
the applicants are otherwise age barred going by the selection notification,
their applications shall be accepted for the time being, if they have already
the other qualifications and eligibility conditions. It appears from the
submissions of both sides that the interim order has been granted by the
Tribunal at Ext.P2 on the basis of the directions and orders passed by the
Division Bench of this Court in Annexure A3 judgment dated 31.08.2017, in
O.P.(KAT)No.125/2017and connected cases, wherein, the Division Bench
has inter alia granted the directions, which reads as follows:
"Only one thing remains to be considered, i.e., even
admittedly, 10% of the total vacancies of SC Promoters in the
District are to be filled up by considering the persons, who are
working as 'Social Workers' as dealt with under Clause II of
Annexure A17. In that case, the maximum age limit is '50
years'; whereas it is 18-40 years in other cases, as mentioned
in Clause I(ii) of Annexure A17. It is conceded across the Bar
that the petitioners applications in response to Annexure A17
will be considered, if they satisfy the requirements
(educational qualification and age factor) for fresh
engagement. But is so far as the petitioners who were
continuing in service for more that 8 years and are stated as
having crossed the age of 40 years, it is to be considered,
whether they could be identified by placing them enbloc
OP(KAT) NO. 84 OF 2022
under this segment, i.e., 10% of the total number of vacancies
available in the District, where the maximum age is '50 years'.
We find it appropriate to cause the above modification to the
said extent, i.e., in respect of this group, preference shall be
given to the persons having the age group above 40 years and
upto 50 years and that only if no qualified person satisfying
the above requirement is available under this Group, will it go
to the other persons of lesser age, i.e., less than 40 years.
Clause I & II of Annexure A17 will stand modified to the said
extent. Subject to the above, we decline interference and the
Original Petitions are dismissed."
5. It is also brought to our notice that Annexure A3 judgment of the
Division Bench of this Court has been confirmed by the Apex Court as per
Annexure A4 judgment dated 28.10.2021, by dismissing the SLP's preferred
against Annexure A3 judgment.
6. It appears that the case of the applicants is to the effect that as per
the norms prescribed by the Government, the age limit for the category
concerned is between 18-40 years. So also, the case of the applicants that
for appointment to the post of Scheduled Caste Promoters from the feeder
source of social workers, the upper age limit is 50 years. One of the main
complaints voiced by the applicants in the present O.A. proceedings is to
the effect that in Annexure A5 selection notification, the 3 rd respondent
Direct0r of the Department concerned, who is subordinate to the
Government, has violated the Government norms and has stipulated that
the age limit shall be within 18-30 years instead of 18-40 years as
OP(KAT) NO. 84 OF 2022
prescribed by the Government. According to the applicants, many of them
are in their mid and late 30's and few of them have crossed 40's. Ext.P2 is
only an interim order, whereby, the rights and interest of the applicants
have been duly protected by permitting them to submit the application
despite the age bar and despite the expiry of the last date of submitting the
applications. The applicants would state that, in Ext.P3 interim order
granted earlier on 25.02.2022, to another set of applicants from a different
district, the same notification has been stayed by the Tribunal. In the
instant case, at Ext.P2 also, the Tribunal should have adopted the same
course by granting stay of the selection proceedings itself as ordered in
Ext.P3.
7. Sri. B.Unnikrishna Kaimal, learned Senior Government Pleader
appearing for the respondents would point out that the main OA matters, in
respect of Exts.P3 is being heard by the Tribunal, the said OA's have been
adjourned when the matter came up before the Tribunal, which was
mentioned on behalf of the present applicants and that the present
O.P(KAT) is being moved before this Court and accordingly, the Tribunal
had adjourned the matter. Further, learned Senior Government Pleader
also apprises that, even the aspect of maintainability of this OA is also being
considered by the Tribunal in as much as, according to the respondents, the
OP(KAT) NO. 84 OF 2022
present selection post may not come within the jurisdictional competency
of the Tribunal and the provisions contained under the Administrative
Tribunal Act, 1985, and the notification issued thereunder and also on the
basis of the dictum laid down by the Apex Court in State of Karnataka
and others vs. Ameerbi and Others [(2007) 11 SCC 681]. Per
contra, the learned counsel appearing for the petitioners would point out
that the very same issue was canvased by the Tribunal in the previous
round of litigations and it has been held by the Tribunal as per Annexure
A2 order dated 23.05.2017, in O.A.No.879/2015, that the plea of this nature
is maintainable before the Tribunal.
8. After hearing both sides, we are of the view that there is no
necessity for us to interfere in this matter since Ext.P2 is essentially an
interim order which is in a way favourable to the applicants. Sri.
Kaleeswaram Raj, learned counsel appearing for the petitioners in the
present OP would point out that the petitioners would be presently satisfied
if the Tribunal hears the main OA matters both in relation to Exts.P2 and
P3 together, if the petitioners have a case that both the matters in relation
to Exts.P2 and P3 should be heard together, it is for them to make pleas in
that regard before the Tribunal. We say so because from Ext.P2, it is seen
that the present OA's are filed before the Principle Bench,
OP(KAT) NO. 84 OF 2022
Thiruvananthapuram, whereas, the other OA matters at Ext.P3 have been
filed before the Additional Bench of the Tribunal at Ernakulam. Since the
matters are pending before the Tribunal, no other orders or directions are
called for.
With these observations and directions, the above O.P will stand
disposed of.
Sd/-
ALEXANDER THOMAS
JUDGE
Sd/-
VIJU ABRAHAM
JUDGE
uu
19.03.2022
OP(KAT) NO. 84 OF 2022
APPENDIX OF OP(KAT) 84/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE MEMORANDUM OF O.A NO.
FILED BY THE PETITIONERS ALONG WITH THE
ANNEXURES.
ANNEXURES A1 TRUE COPY OF THE G.O(P) NO. 86/10 DATED
28.07.2010.
ANNEXURE A2 TRUE COPY OF THE ORDER OF THIS HON'BLE
TRIBUNAL IN OA 879/2015 AND CONNECTED
MATTERS DATED 23.05.2017.
ANNEXURE A3 TRUE COPY OF THE COMMON JUDGMENT IN THESE
OP(KAT), DATED 31.08.2017.
ANNEXURE A4 TRUE COPY OF THE COMMON JUDGMENT OF THE
HON'BLE SUPREME COURT IN SLP NOS. 4057-
4064/2018 AND CONNECTED CASES DATED
28.10.2021.
ANNEXURE A5 TRUE COPY OF THE NOTIFICATION ISSUED BY THE
SCHEDULED CASTES DEVELOPMENT DIRECTORATE.
Exhibit P2 TRUE COPY OF THE ORDER DATED 08.03.2022 IN
OA 331/2022 PASSED BY THE HON'BLE KERALA
ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM.
Exhibit P3 TRUE COPY OF THE INTERIM ORDER DATED
25.02.2022 IN OA (EKM) NO. 320/2022 PASSED
BY THE HON'BLE TRIBUNAL.
