IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27871 of 2010(R)
1. T.SREEKANTAN, ADVOCATE,
1. STATE OF KERALA REPRESENTED BY
2. PRINCIPAL SECRETARY TO GOVERNMENT,
4. UNION OF INDIA REPRESENTED BY SECREARY,
For Petitioner :SRI.BENOY THOMAS
For Respondent :SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice B.P.RAY
O R D E R
C.N.RAMACHANDRAN NAIR &
BHABANI PRASAD RAY, JJ.
.................................................................... W.P.(C) Nos.27871, 32310, 27844,
28045 and 27629 of 2010
.................................................................... Dated this the 12th day of April, 2011.
Ramachandran Nair, J.
All these writ petitions are filed in public interest challenging the decision of the State Government to constitute State Administrative Tribunal under the Administrative Tribunals Act, 1985 (hereinafter called "the Act") to handle service cases of State Government employees. Challenge made in the writ petitions include constitutional validity of the provisions of the Act, Notifications and other Orders issued constituting the Tribunal and appointing the Chairman and also the establishment of two permanent Benches at Trivandrum while only one Bench, that too without filing facility, at Ernakulam, which is the seat of the High Court of the State. Grave procedural irregularities including lack of prior consultation with the Chief Justice of India and the Governor as required under Section 6(3) and (4) of the Act affecting the validity of appointment of the Chairman of the Tribunal W.P.(C) 27871/2010 & conn. 2
are also raised.
2. Of the five writ petitions, two are filed by individual lawyers, the third by a Government employee and the 4th by a voluntary organisation, the Samata Law Society and the last by the Kerala High Court Advocates Association. While all the petitioners except the Kerala High Court Advocates Association are strongly opposed to the constitution of the Tribunal as thoroughly unnecessary and challenge the decision taken based on incorrect data and irrelevant considerations as arbitrary and unconstitutional, the Kerala High Court Advocates Association treats the Tribunal as a fait accompli and, therefore, prays for only a direction for establishment of the principal Bench of the Tribunal at Ernakulam, the seat of the High Court or atleast to have filing facility in the permanent Bench proposed there. We have heard various counsel appearing for the petitioners, Assistant Solicitor General for Government of India, Government Pleader for the State and counsel appearing for the additional respondents impleaded.
3. The orders and documents referred to in this judgment are W.P.(C) 27871/2010 & conn. 3
those produced in W.P.(C) No.27871/2010 which is filed by an Advocate of this court. Petitioners have heavily relied on the decision of the Supreme Court in the case of L.CHANDRAKUMAR VS. UNION OF INDIA reported in AIR 1997 SC 1125 and submitted that Kerala is the only State which has taken the unwise decision to set up a State Administrative Tribunal after the Supreme Court held that the constitution of the Administrative Tribunals will lead to two tier litigation as against the present litigation that starts and ends in the High Court. They have cited the action of very many State Governments like Tamil Nadu, Madhya Pradesh, Chattisgarh and Himachal Pradesh, abolishing the State Tribunals as there was no justification for their continued existence and also decisions of several States including Karnataka not to start Tribunal, though once proposed. Petitioners have referred to the decision of the Supreme Court in M.P. HIGH COURT BAR ASSOCIATION VS. UNION OF INDIA reported in AIR 2005 SC 4114 and contended what is upheld by the Supreme Court is abolition of Administrative Tribunal already set up by the W.P.(C) 27871/2010 & conn. 4
State on the ground that the State rightly felt that the Tribunal serves no useful purpose. Besides challenging the wisdom of the State in deciding to set up the State Administrative Tribunal, the petitioners have specifically contended by relying on Ext.P5 report of the Expert Committee constituted by the Government with Chief Secretary to Government as the Chairman, that the decision taken is based on irrelevant considerations and incorrect facts and data furnished by the Committee. An alternate contention raised by the petitioners is that the Government could have achieved the purpose of setting up a Service Tribunal for the State by requesting the Central Government to notify the Kochin Bench of the Central Administrative Tribunal to function as the State Administrative Tribunal as well in terms of Section 4(5)(b) of the Act. The case of the petitioners is that the Kochin Bench of the Central Administrative Tribunal has four members and they do not have sufficient work with the result there is no sittings in the afternoon. Therefore, according to the petitioners, if the CAT Bench at Kochin is notified by the Central Government under Section 4(5)(b) of the Act, it W.P.(C) 27871/2010 & conn. 5
could have served as a State Administrative Tribunal as well without the requirement of State Government constituting a separate Tribunal at massive initial and recurring cost. Even though we do not think it is within our jurisdiction to consider the propriety of a policy decision taken by the State Government to set up a separate Tribunal for itself, we are constrained to observe that the arguments advanced are very relevant and reasons for establishment of the Tribunal as explained in the report of the Expert Committee are neither relevant nor factually correct. In the first place, the assumption of the Committee and the State Government that the Tribunal will relieve the High Court of it's work is rather absurd because after CHANDRAKUMAR's case above referred every order of the Tribunal can be challenged before this court. From our experience of handling cases which arise from the orders of the Central Administrative Tribunal, Kochin Bench, we notice that invariably every order of the CAT including their interim orders are challenged in the High Court. The only advantage is that there is no intra court appeal because all matters from the CAT are heard by W.P.(C) 27871/2010 & conn. 6
Division Benches. The assumption of the State Government that the setting up of the State Administrative Tribunal will relieve the High Court of it's work pertaining to service matters of the State Government employees is thoroughly wrong. On enquiry with the Registry, we find that the pendency of State Government employees' service cases in the High Court is not even 10% of the total cases pending here i.e. less than 10000 cases pending before Single Judges. Substantial number of cases are infructuous and do not call for any decision on merits. Even when the cases are transferred to the Tribunal, the same will be only temporary relief for the High Court because we are sure the same case bundles will come back with one more annexure i.e. order of the Tribunal, challenging that order as well. In other words, the reduction of work in the High Court will only be at one level, i.e. that of the Single Judges whose job will be virtually taken over by the Tribunal. After decision of the Supreme Court in CHANDRAKUMAR's case orders of the Tribunal could be subject to judicial review by the High Court and therefore the Tribunal cannot substitute the High Court W.P.(C) 27871/2010 & conn. 7
which was the fundamental basis on which Tribunals are set up in the country and the same was visualised in Supreme Court's decision in S.P.SAMPATH KUMAR VS. UNIOIN OF INDIA reported in AIR 1987 SC 386. However, the declaration of subordination of the Administrative Tribunals to the High Courts under Article 227 of the Constitution by the Supreme Court in CHANDRAKUMAR's case has rendered the Tribunals redundant and incapable of achieving it's objectives i.e., to relieve the pressure of work in High Courts. Of course few orders of the Tribunal may achieve finality, which are orders in favour of the parties, if accepted by the State Government. In our view, the best way to find out the usefulness or worth of the Tribunal was to find out the impact of the CAT Bench at Kochin on the work load of the Kerala High Court in regard to service cases of Central Government employees, Railways etc., handled by them. The Expert Committee could have just verified what percentage of litigation in Kochin Bench of the CAT has achieved finality without reaching the High Court. From our experience in the Division Bench in hearing W.P.(C) 27871/2010 & conn. 8
matters arising from orders of the CAT, we do not think any sizeable number of cases end up with the orders of the Tribunal and our feeling is that invariably every order of the CAT including interim orders are challenged in this court. So far as the quality of the Tribunal's orders are concerned also, we felt that interference by High Court are not infrequent. Besides the reduction in work load in the High Court assumed by the Government about which we are not convinced, the State Government has stated another ground justifying the Tribunal which is the massive expenditure being incurred now by way of travel allowances given to employees going from Trivandrum to Ernakulam for filing affidavits, counter affidavits etc. in the High Court. We are surprised to note the massive expenditure claimed to be spent by the Government for the above stated exercise. In these days of advanced communication and connectivity only the State Government can allow people travel up and down carrying files which in our view is avoidable. Further, we do not know how Government can save this expenditure by establishing the Service Tribunal because in the second W.P.(C) 27871/2010 & conn. 9
round of litigation in the High Court the same exercise will have to be repeated. Apart from this, since the Tribunal has a permanent Bench in Ernakulam, the traditional travel of Government employees will continue first to the Tribunal and later to the High Court leading to increase in expenditure. So much so, in our view, the saving of cost presently incurred by the Government for support given to Advocate General's office for handling Government cases in the High Court is not going to materialise by setting up the Tribunal. The petitioners' case is that the grounds stated in the report are either irrelevant or incorrect and, therefore, the decision taken to set up the Tribunal based on the said report should be declared arbitrary and violative of Article 14 of the Constitution of India. Government Pleader on the other hand submitted that the wisdom of the Government in setting up of the Tribunal should not be permitted to be questioned in court as the same cannot be subject to judicial review. Counsel for the petitioners have relied on decision of the Supreme Court in DIRECTORATE OF FILM FESTIVALS VS. GAURAV ASHWIN JAIN reported in 2007(4) SCC W.P.(C) 27871/2010 & conn. 10
737 and contended that legality of the policy, though not wisdom of it, can be questioned before the court and if the court is satisfied that irrelevant considerations weighed with the Government in taking the decision, even such policy decision could be interfered with by the High Court is their argument. We notice from the counter affidavit filed by the State Government that once the Tribunal is set up, State proposes to notify and confer jurisdiction on the Tribunal for settling service disputes of employees engaged in Statutory Corporations and Public Sector Companies under the control of the State Government. Even though we are convinced that the objectives, the State expects to achieve with the establishment of the Tribunal i.e. reduction of work load in the High Court, cannot be achieved, we do not want to interfere with the policy decision of the Government to set up the Tribunal because atleast it will serve the purpose of avoiding two tier litigation in the High Court and petitions to High Court will be limited only to Division Benches. We have to also take note of the fact that the Central Government inspite of being aware of the failure of CAT to W.P.(C) 27871/2010 & conn. 11
achieve the objectives with which it is formed atleast after CHANDRAKUMAR's case, still the Tribunal is allowed to continue unmindful or unconcerned about the worth of it's existence. As held by the Supreme Court in UNION OF INDIA VS. MADRAS BAR ASSOCIATION reported in 2010(11) SCC 1 most Tribunals provide berths to several retired civil servants, Judges and Judicial Officers and no one has bothered to assess their worth with reference to performance and finality. While upholding the abolition of the Tribunal by the States of Madhya Pradesh and Chattisgarh, the Supreme Court in M.P. HIGH COURT BAR ASSOCIATION VS. UNION OF INDIA reported in AIR 2005 SC 4114 held that abolition of Tribunal is a policy decision beyond judicial review. If that be so, then we have to hold that setting up of Tribunal is also a policy decision. What we notice in the three decisions of the Supreme Court above referred is that inspite of being convinced that Tribunal is no substitute for High Courts, the Honourable Supreme Court has not interdicted Governments from continuing with the Tribunals or establishing new Tribunals. W.P.(C) 27871/2010 & conn. 12
Therefore, we reject the prayer of the petitioners for declaration that there is no scope for establishment of Service Tribunal after CHANDRAKUMAR's case decided by the Supreme Court.
4. The petitioners have also raised procedural irregularities and illegalities in the establishment of the Tribunal and the appointment of the Chairman, which according to them, are sufficient for this court to declare the establishment and constitution of the Tribunal as illegal and arbitrary. The first contention raised in this regard is that even before the Act was notified by the Central Government in Kerala under Section 1(4) vide Ext.P13(b), the State Government identified the Chairman of the Tribunal who was at that time a sitting Judge of the High Court. Further, the petitioners allege that the Tribunal was established vide Ext.P1 with effect from 26.8.2010, whereas the Chairman was appointed vide Ext.P4 dated 25.8.2010. The specific case of the petitioners is that the Chairman could not have been appointed before the establishment of the Tribunal, which has happened in this case. However, we do not find any merit in this W.P.(C) 27871/2010 & conn. 13
contention because Ext.P1 is not constitution of the Tribunal, but approval of establishment of the Tribunal by the Central Government under Section 4(2) of the Act. We do not know what is the objection about the Government identifying the Chairman first and simultaneously sending up his name for approval by the Central Government and for the President to appoint him in consultation with the Chief Justice of India. What we notice from Ext.P4 is that the Chairman's appointment will take effect from the date on which he takes charge. It is the admitted fact that the Chairman of the Tribunal based on Ext.P4 took charge on 3.9.2010, whereas the establishment of the Tribunal was notified by the Central Government under Section 4 (2) of the Act with effect from 26.8.2010. Therefore, the contention of the petitioners that the Chairman was appointed prior to establishment of the Tribunal lacks any merit and the same is rejected.
5. Another contention raised by the petitioners is that the process of selection of the Chairman of the Tribunal was started by the State Government while he was a sitting Judge of this court and even before W.P.(C) 27871/2010 & conn. 14
the Act was made applicable in the State. However, what we find from Ext.P13(b) is that the Central Government issued Notification under Section 1(4) of the Act on 22.12.2009 bringing the provisions of the Act in force in Kerala with effect from 1.1.2010. Even though the process of selection of the Chairman started before the establishment of the Tribunal, the proposal was sent and were considered by the Central Government almost simultaneously and in the sequence in which things happened as stated above, first the Act was notified, then Notifications were issued under Section 4(2) establishing the Tribunal and appointing the Chairman under 6(3) read with Section 6(4) and thereafter the person appointed as Chairman took charge. Therefore, this contention lacks any merit and the same is rejected.
6. The petitioners have raised a serious contention with regard to the absence of proper consultation by the President of India with the Chief Justice of India before appointment of the Chairman. In this regard they have referred to the proceedings of the Honourable Chief Justice of India concurring with the views of the State Government on W.P.(C) 27871/2010 & conn. 15
the appointment of Chairman, which according to the petitioners, is not consultation in terms of Section 6(3) and (4) of the Act. They have also pointed out that page 1 of the proceedings of the Honourable Chief Justice of India is missing, from which the petitioners want us to draw an the adverse inference that no proper prior consultation was made with the Chief Justice of India. The files were made available to us by the Assistant Solicitor General wherein we notice the letter of concurrence issued by the Chief Justice of India. Only page No.2 is available in the file and it is intriguing to note that the first page of the proceedings of the Honourable Chief Justice of India is missing. However, we do not propose to make any adverse inference on account of missing of the first page. Petitioners have relied on decision of the Supreme Court reported in In Re.. Presidential Reference reported in AIR 1999 SC 1 for the contention that consultation of the Chief Justice of India should be consultation with plurality of Judges as well, which is not done in this case. The Honourable Chief Justice of India obviously would be well aware of the nature of the proceedings issued W.P.(C) 27871/2010 & conn. 16
by him on 9.7.2010 wherein he concurred with the State Government for appointment of the Chairman of the State Administrative Tribunal. We, therefore, do not think the petitioners' allegation justifies the conclusion that the appointment of the Chairman of the Tribunal was made without prior consultation with the Chief Justice of India. We, therefore, reject this contention also.
7. Another contention raised by the petitioners is that the consultation with the Chief Justice of the High Court personally for selection of the Chairman and the Members of the Tribunal should also be done based on the abovereferred decision after consultation with the other Judges. Our findings above squarely applies to this contention as well and hence we reject the same. So far as the allegation that Chairman of the Tribunal is not selected by the State Council of Ministers as a whole but only by the Chief Minister and the Law Minister is concerned, we do not think there is any scope for enquiry after several constitutional functionaries including Chief Justice of India, Governor and the President approved the proposal of the State W.P.(C) 27871/2010 & conn. 17
8. The petitioners have also raised objection that even though Members are selected, the President of India has not approved their appointments. According to the petitioners, with the appointment of Chairman alone Tribunals cannot be constituted. In other words, the Tribunal should be constituted with the Chairman and Members together is the case of the petitioners. However, what we find is that the Administrative Tribunals (Procedure for appointment of Vice Chairman and Members) Rules, 2006, in Rule 2 provides that Vice Chairman and Members of the State Administrative Tribunal are appointed by a committee with the Chief Justice of the High Court as Chairman, Chairman of the State Administrative Tribunal as a Member, Chief Secretary to Government and Chairman of the State Public Service Commission as other Members. So much so, unless Chairman is first appointed, it would not be possible under the Rules to appoint the Vice Chairman and Members of the Tribunal. We, therefore, feel the appointment of the Chairman first after establishment of the W.P.(C) 27871/2010 & conn. 18
Tribunal is a necessary prerequisite to constitute the Tribunal with the full quorum of Vice Chairman and Members as decided by the Government. We, therefore, do not find any merit in this contention also. However, the position as of now is that the Tribunal is only established but not constituted which will happen only on appointment of the Members.
9. So far as the number of Members of the Tribunal which is increased to six is concerned, we feel this is also part of the policy decision of the Government and it is not for this court to fix the number of Members of the Tribunal. So far as the allegation made against the selection of Members is concerned, as of now few people are selected by the committee in terms of the Rules and their appointments are to be notified and approval is pending before statutory authorities. We do not think there is any need for us to consider whether the procedure being adopted is in accordance with the statute or the Constitution because the whole process is stated to be going on now. We, therefore, do not propose to interfere with the process of selection which is said W.P.(C) 27871/2010 & conn. 19
to be in progress.
10. Relying on decision of the Supreme Court in MADRAS BAR ASSOCIATION's case referred above the petitioners have challenged the whole process of establishment of the Tribunal and the appointment of the Chairman on the ground that Department of Law and Justice of the Central Government is kept out and the department that co- ordinated in the matter was the Ministry of Personnel. Assistant Solicitor General appearing for the Central Government submitted that there is no divergence of opinion between Department of Personnel and Department of Law and Justice. Since Central Administrative Tribunal matters are handled by Department of Personnel, the matters relating to State Tribunals are also handled by Department of Personnel is his case. He further submitted that the Department of Law and Justice is not kept in the dark and it is only through them the files are forwarded to the Chief Justice of India and also to the President of India for approval. We do not think the establishment of the Tribunal or the appointment of the Chairman of the Tribunal could be questioned on W.P.(C) 27871/2010 & conn. 20
the ground that the Department of Personnel of the Government of India handled the files. Even though the Supreme Court has stated in the above decisions that the appropriate Ministry to act as nodal agency is the Department of Law and Justice, we do not think the role played by the Department of Personnel in this case invalidates the decision taken to establish the Tribunal and also in regard to appointment of the Chairman. So far as the provisions of the Act are concerned, it only talks about the Government and not about the Ministry concerned. The procedure in regard to Government business is an internal matter and when the Government take decisions which get approval from the constitutional authorities like Governor, Chief Justice of India and President, we do not think such decisions could be questioned on infirmities of this nature which in our view do not affect the validity of the proceedings particularly when no malafide is raised and proved by the petitioners. For the above reasons we reject the allegation made by the petitioners that the Prime Minister or the Council of Ministers of the Central Government have not approved the proposal for W.P.(C) 27871/2010 & conn. 21
establishment of the Tribunal.
11. In the W.P.(C) filed by the High Court Advocates' Association their prayer is only for direction to the State Government to set up as far as possible Tribunal with Headquarters at the seat of the High Court i.e. in Ernakulam. In this regard the Government Pleader has rightly pointed out that most of the decisions challenged before the Tribunal are decisions rendered by Government Secretaries who are appellate or revisional authorities under the service law and all these persons and theirs offices are located in the Secretariat at Trivandrum. Therefore, in our view, there is nothing wrong in the setting up of the Tribunal with Headquarters at Trivandrum. Petitioner's contention in this regard has also to be considered with regard to the peculiar context of Kerala where the High Court is located at a place far away from Trivandrum where the State Secretariat is functioning. Considering the peculiar features, Headquarters of the Tribunal could not be ordered to be located at Ernakulam. So far as the Bench at Ernakulam is concerned, Government Pleader confirmed that there is already W.P.(C) 27871/2010 & conn. 22
decision by the Government to have a permanent Bench at Ernakulam. The remaining grievance of the Advocates' Association is only filing facility at Ernakulam, which we feel is highly essential or otherwise the Advocates and their clerks have to travel to Trivandrum. We do not think there can be much difficulty to arrange filing facility in Ernakulam where the State proposes to have a permanent Bench of the Tribunal. We, therefore, direct the Government and the Chairman of the Tribunal to provide filing facility in the Bench being established at Ernakulam.
12. We do not propose to consider constitutional validity of the provisions of the Act raised by the petitioners because the statute remained in fore for over quarter of a century and these provisions have been subject matter of scrutiny by the Supreme Court in several decisions including CHANDRAKUMAR's case. We have to consider the challenge against constitutional validity of the provisions in a realistic manner and as of now, the CAT constituted under the Act is functioning for more than two decades and Tribunals constituted in W.P.(C) 27871/2010 & conn. 23
several States under the provisions of the Act are also functioning. Therefore, we do not find any scope for entertaining challenge against constitutional validity of provisions of the Act. Consequently we dismiss all the writ petitions except one filed by the Kerala High Court Advocates Association, which is allowed in part as above.
BHABANI PRASAD RAY
P.S. to Judge