Judgment:
T.R. Ramachandran Nair, J.
1. The Registry has noted a defect regarding the maintainability of the writ petition. A clarification was sought whether the matter is to be dealt with by the Kerala Administrative Tribunal. Since learned counsel for the petitioner requested to send the matter to the bench, the matter came up for consideration and accordingly it was heard.
2. The writ petition is filed by the petitioner who has been included in the rank list, Ext.P3, published by the Public Service Commission for appointment to the post of H.S.A. (Maths). He is claiming appointment in the reservation quota for disabled (Orthopaedically Physically handicapped –locomotor disability). The challenge is against Ext.P4 order passed by the Government directing the Public Service Commission to advise physically handicapped candidates against serial Nos.33, 66 and 99 in a cycle of 100 vacancies. Various reliefs have been accordingly sought.
3. Shri Benoy Thomas, learned counsel for the petitioner submitted that the petitioner is not a person included in any service and he is an outsider and therefore the remedy of the petitioner is only to approach this Court. Reliance is placed on the decision of the Apex Court in Dr.Duryodhan Saba and others etc. etc. v. Jitendra Kumar Mishra and others (AIR 1999 SC 114). It is submitted that in the light of Sections 19 and 20 of the Administrative Tribunals Act (for short ‘the Act’), only a persona aggrieved by any order, can approach the Tribunal. Learned Counsel therefore submits that the view taken by the Division Bench of this Court in Tomy Philip v. The Chief General Manager, Telecommunication (2001 (2) KLT 490) may not be the correct one, as the decision of the Apex Court in Dr. Duryodhan Sahu’s case (supra) will prevail.
4. In fact, a learned Single Judge of this Court in the order in W.P. (C) unnumbered of 2011 dated 23.12.2011, in a similar matter, has held the view by interpreting Section 15 of the Act, that as the said writ petition is one relating the recruitment and matters concerning recruitment to the State service, it will have to be filed before the Kerala Administrative Tribunal. Section 15(1)(a) of the Act reads as follows:
“15. Jurisdiction, powers and authority of State Administrative Tribunals,- (1) Save as otherwise expressly provide din this Act, the Administrative Tribunal for a State shall exercise, on and form the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court) in relation to—
1. Recruitment, and matters concerning recruitment, to any civil service of the State or to any civil post under the State.”
But the learned counsel tried to impress upon, while putting the arguments, that the decision of the Apex Court and its significance have not been considered in any of the decisions. The decision of the Apex Court in Dr. Duryodhan Saha’s case (supra) is a case where a public interest litigation as filed before the Central Administrative Tribunal, Bhubaneswar. Para 8 of the judgment shows that application were filed by the office bearers of curtain organizations seeking to quash a Government Order creating a post and challenging the appointment of the beneficiary of the said order. It is in that context the issue was examined. After referring to various decisions and the scope of Section 19(1) of the Act, the Apex Court in para 18 laid down the principle thus:
“The definition of ‘service matters’ found in Section 3(q) shows that in relation to a person the expression means all service matters relating to the conditions of his service. The significance of the word ‘his’ cannot be ignored. Section 3 (b) defines the word ‘application’ as an application made under Section 19. The latter Section refers to ‘person aggrieved’. In order to bring a matter before the Tribunal, an application has to be made and the same can be made only by a person aggrieved by any order pertaining to any matter within the jurisdiction of the Tribunal. We have already seen that the word ‘order’ has been defined in the explanation to sub-sec. (1) of Section 19 so that all matters referred to in Section 3(q) as service matters could be brought before the Tribunal. If in that context, Sections 14 and 15 are read, there is no doubt that a total stranger to the concerned service cannot make an application before the Tribunal. If public interest litigations at the instance of strangers are allowed to be entertained by the Tribunal the very object of speedy disposal of service matters would get defeated.”
In para 19, their Lordships referred to the decision of the Orissa Administrative Tribunal in Smt. Amitarani Khuntia v. State of Orissa (1996 (1) Orissa L.R. (CSR) 2) which held the view that a private citizen or a stranger having no existing right to any post and not intrinsically concerned with any service matter is not entitled to approach the Tribunal. The said view was upheld by the Apex Court. In fact, in the said decision, the Orissa Tribunal had taken the view that the Tribunal dies not enjoy any plenary power, which was upheld by the Apex Court. The Apex Court thereafter, in para 21 held that “the Administrative Tribunal constituted under the Act cannot entertain a public interest litigation at the instance of a total stranger.”
5. Evidently, that was a case where a total stranger to the service wanted to challenge a Government Order and it is in that context it was held that such persons cannot move the Tribunal. Herein, it is not the position. The petitioner is already included in the rank list and he seeks a direction to the Public Service Commission to advise him.
6. The meaning of the term “recruitment and matters concerning recruitment” under Section 14 which are the similar words in Section 15(1) (a), came up for consideration in Tomy Philip’s case (2001 (2) KLT 490). Therein, after examining various judgments including that of this Court in Salem v. Deputy Collector (1988 (1) KLT 757) and O.P.No.13618/1992 which took the view that the word ‘recruitment’ is not restricted to recruitment by transfer of persons already in service and that it can take within its ambit direct recruitment as well, the Division bench declared the law thus in para 15:
“The dispute sought to be raised in the two petitions is in relation to recruitment and matters concerning recruitment within the meaning of clause (a) of sub-s (1) of S.14 of the Act. If that be the true position, having regard to the law laid down by the Apex Court in L. Chandra Kumar’s case 9supra), the Tribunal would be the Court of first instance where such a dispute can be first raised.”
After considering the decision of the Apex Court in L. Chandra Kumar v. Union of India (AIR 1997 SC 1125), in para 16 it was held thus:
“On a consideration of the relevant constitutional provisions and the scheme of the Tribunal Act, it has been held by the Apex Court that, the Tribunals created under Art 323A and Art.323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. The Tribunals will continue to act as the Courts of first instance is respect of areas of law for which they have been constituted, though t heir decisions will however, be subject to a scrutiny before a Division Bench of the High Court. To a limited extent, S. 28 of the Administrative Tribunals Act, 1985 and the exclusion of jurisdiction clauses in all other legislations enacted under the aegis of Arts.323A and 323B was, to that extent, held to be unconstitutional, making a departure from the earlier decision in S.P.Sampath Kumar’s case – (1987) 1 SCC 124.”
7. Therefore, Section 15(1)(a) of the Act being similarly worded, any matter concerning recruitment will be a matter coming within the purview of the Administrative Tribunal. Learned Counsel for the petitioner points out that the challenge is against a Government Order and therefore only a person aggrieved as provided under Section 19 of the Act can approach the Tribunal. In fact, Section 19 in the explanation gives a meaning to the term “order” as follows:
“Explanation- For the purpose of this sub-section, “order” means an order made-
a. by the Government or a local or other authority within the territory of India or under the control of the Government of India or by any corporation or society owned or controlled by the Government.”
Therefore, any order passed by the Government will be an order for the purpose of Section 19 of the Act. The Apex Court in L. Chandra Kumar’s case (AIR 1997 SC 1125), was of the view that the “Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules” and the Division bench in Tomy Philip’s case (2001 (2) KLT 490), as followed the said view and declared that “Tribunal will continue to act as the Courts of first instance in respect of areas of law for which they have been constituted, though their decisions will however, be subject to a scrutiny before a Division Bench of the High Court.”
In that view of the matter, the petitioner’s remedy is only to move the Administrative Tribunal which is governed by Section 15 of the Act. Hence, the defect noted by the Registry is sustainable. The Registry is directed to return the writ petition to the petitioner for presentation before the Kerala Administrative Tribunal.