Bindu A.P. D/o A.P. Imbichunni vs State Of Kerala

Raja Vijayaraghavan V, J

The petitioners herein are persons who have applied for the post of Part-Time High School Assistant in pursuance to the notification dated 18.8.2017 issued by the Kerala Public Service Commission (KPSC). The above notification was issued on the basis of the request made by the Education Department for effecting appointment in Idukki District. They have approached this Court seeking the following reliefs:

i) Issue a writ of mandamus or any other appropriate order or direction to the respondents to implement Exhibit P1 Act in Idukki district in its full scope, in letter and spirit, by ensuring that Malayalam, the State Language, is taught as a subject in all Government High Schools, including the 12 Government High Schools specified in Exhibit P 4(a) RTI reply, dated 23/2/2002 given by respondent No 6

ii) issue such other writ, order, or direction to the respondents to appoint the rank holders in exhibit P 3 ranked list, the petitioners being among them, to the posts of Part-Time High School Assistant (Malayalam) which are existing and forthcoming in Government High Schools in the Idukki District, including the 12 Government High Schools specified in exhibit P4(a) RTI reply dated 23/2/22, furnished by respondent No 6, which have omitted to implement Exhibit P1 Act

iii) issue such other writ, order or direction to the respondents to extend the validity of exhibit P 3 ranked list if it is required in order to put into effect the prayers submitted above.

iii (a) issue such other writ, order, or direction to respondents numbers 1 to 6 to report the vacancies for the post of Part-Time High School Assistant (Malayalam) in Idukki district, to respondents 7 and 8, that would have arisen if Exhibit P1 act had been implemented in its full scope, in letter and spirit, in Idukki district, with effect from 10/4/2018, the date on which Exhibit P1 Act came into force, to 22/4/2024, and also give such a writ order or direction to respondents 7 and 8 to advise the rank holders in Exhibit P3 rank list including petitioners 2 to 9 for the same post, and carry out the necessary follow-up action forthwith, in the interest of justice and equity.

The petitioners assert that the Malayalam Language Learning Act, 2017 (Act 8 of 2017), enacted by the State Legislature, came into force with effect from 10.4.2017. The Act was enacted to provide for teaching Malayalam as a compulsory language in all Schools in the State and for matters connected therewith or incidental thereto. According to the petitioner, in terms of the provisions of the Act, Malayalam has to be compulsorily taught as a language in classes from Standards I to X in all schools from the academic year 2017-2018 in all streams of General Education, including Aided and Unaided schools and schools affiliated to Boards such as Central Board of Secondary Education (CBSE) or the Council for the Indian Certificate of Secondary Education (ICSE).

It is stated that in Ext.P3 ranked list published in pursuance to Ext.P2, the petitioners herein have been included. The ranked list is brought into effect with effect from 23.10.2019, and its validity is till 22.10.2022.

The petitioners contend that, for one reason or the other, the respondents are not taking forward the process initiated on the basis of Ext.P2 to its logical conclusion by appointing candidates named in Ext.P3 ranked list as per the norms. They contend that in Idukki District, there are about 12 Government Schools where Malayalam is not taught. This, according to them, would militate against the provisions of Act 8 of 2017. Being aggrieved and seeking appointment in terms of Ext.P3 ranked list, the petitioners submitted various representations before the respondents. However, no action has been taken. It is in the afore circumstances that they have approached this Court with this writ petition.

In the counter affidavit filed by the 5th respondent, it is stated that the writ petition is not maintainable, as the petitioner is required to approach the Kerala Administrative Tribunal in view of Section 15 of the Kerala Administrative Tribunal Act, 1985. The Tribunal has the necessary jurisdiction, power, and authority to adjudicate on all disputes relating to service matters, including the power to deal with all questions pertaining to the constitutional validity or otherwise as offending Articles 14 and 16(1) of the Constitution. It is further stated that as per the provisions of the Kerala Education Act and the Rules, there is no provision for allocating Malayalam teaching posts in the 12 schools in Idukki District where classes are conducted exclusively in Tamil medium. However, with a view to achieving the objectives of the Act, the Government vide G.O.(Rt) No. 1866/2021/G.Edn. dated 22.2.2021 has ordered the appointment of teachers on a daily wage basis in pure Tamil and Kannada medium schools in linguistic minority areas. It is stated that on the strength of the above order, the Deputy Director of Education, Idukki, has issued Ext.R6(b) order appointing Malayalam language teachers on a daily wage basis in all the pure Tamil medium schools in Idukki District from the year 2022-2023. It is stated there are no vacancies of Part-Time HSA (Malayalam) in Idukki District to be reported to the KPSC. It is further stated that vacancy would come into existence only if a post of Part-Time HSA (Malayalam) is sanctioned in the Government Schools in Idukki District. It is further stated that implementation of the Rules can only be done in a staggered manner, starting from the Primary Sections.

I have heard the erudite and vehement submissions of Smt. Priya Shanavas, the learned counsel appearing for the petitioners, Smt. Beena Mary Joseph, the learned Senior Government Pleader, and Sri. P.C.Sasidharan, the learned counsel appearing for the KPSC.

The grievance raised by the petitioners essentially is that despite the enactment of Act 8 of 2017, the respondents are not diligently implementing the provisions of the Act by filling up the vacancies and, in that process appointing the petitioners herein who are the rank holders. In the counter affidavit, the 5th respondent has taken the stand that in order to achieve the objectives of the Act, the Government has taken a decision to carry out temporary appointment of teachers on a daily wage basis in pure Tamil and Kannada Medium Schools in Linguistic minority areas. The respondents rely on Exhibit R6(b) order issued by the DDE to substantiate that Malayalam teachers have been appointed on a daily wage basis in all the pure Tamil medium Schools in Idukki District.

It has been laid down time and again by this Court as well as the Hon’ble Supreme Court that even if a number of vacancies are notified for the appointment, and an adequate number of candidates are found fit, the successful candidates cannot be said to have acquired an indefeasible right to be appointed. Ordinarily, the notification merely amounts to an invitation to qualified candidates to apply for the recruitment, and on their selection, they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the license to act in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. (See Shankaran Dash v Union of India [AIR 1991 SC 1612]. The 5th respondent has stated that there are no vacancies of Part-Time HSA (Malayalam) in Idukki District to be reported to the PSC. If the State has not chosen to fill up the vacancies and legitimate and convincing reasons are offered for the same, the same being a policy decision, it is not for this Court to interfere with the same, in the absence of the petitioners pointing out any arbitrariness on the part of the respondents.

The next question is whether the contention of the learned Senior Government Pleader that the petitioners should be relegated to the Administrative Tribunal should be accepted. According to the learned Government pleader, all the jurisdiction, powers, and authority exercisable in relation to recruitment and matters concerning recruitment to any civil service of the State or to any Civil post under the State would vest with the Administrative Tribunal. Smt.Priya Shanavas, the learned counsel, would vehemently oppose the submissions, and it was argued that this Court, having entertained the writ petition, it would not be proper to relegate the matter to the Tribunal.

I find that this Writ Petition was filed on 18.4.2022. I.A.No 4 of 2022 was filed seeking amendment of the writ petition on 14.9.2022, which was allowed by this Court on 28.9.2022. The amended writ petition was filed on 6.10.2022. The Counter affidavit was filed by the 5th respondent on 10.10.2022, and the matter was heard on 11.10.2022.

The contentions advanced by both sides with regard to the maintainability of the writ petition will have to be considered in light of S.15(1) of the Administrative Tribunals Act, 1985. The said provision reads thus:

“15. Jurisdiction, powers and authority of State Administrative Tribunals.-- (1) Save as otherwise expressly provided in this Act, the Administrative Tribunal for a State shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court) in relation to-

(a) recruitment, and matters concerning recruitment, to any civil service of the State or to any civil post under the State;

(b) all service matters concerning a person not being a person referred to in clause (c) of this sub-section or a member, person or civilian referred to in clause (b) of sub-section (1) of section 14 appointed to any civil service of the State or any civil post under the State and pertaining to the service of such person in connection with the affairs of the State or of any local or other authority under the control of the State Government or of any corporation or society owned or controlled by the State Government;

(c) all service matters pertaining to service in connection with the affairs of the State concerning a person appointed to any service or post referred to in clause (b), being a person whose services have been placed by any such local or other authority or corporation or society or other body as is controlled or owned by the State Government, at the disposal of the State Government for such appointment.”

The Administrative Tribunal was constituted to exercise all the jurisdiction, powers, and authority exercisable by all courts (except the Supreme Court) in relation to recruitment, and matters concerning recruitment, to any civil service of the State or to any civil post under the State. Article 309 is the provision in the Constitution that empowers the appropriate Legislature to frame rules to regulate recruitment to public services and the post. ‘Recruitment’, according to the dictionary, means ‘enlist’. It is a comprehensive term and includes any method provided for inducting a person in public service. Appointment, selection, promotion, and deputation are all well-known methods of recruitment. (See K. Narayanan and Others v State of Karnataka and Others [1993 SCALE (3) 614]. In other words, recruitment, and matters concerning recruitment, to any civil service of the State or to any civil post under the State can only be entertained by the tribunal constituted under the Act.

In L. Chandrakumar v. Union of India, (1997) 3 SCC 261, the apex Court in paragraph No. 99 has held as under:—

“99. In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the “exclusion of jurisdiction” clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. 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. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls. The Tribunals will, nevertheless, continue to act like courts of the first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned.

The conclusion is inescapable that the prayers sought by the petitioners in this Writ Petition would fall within the purview of S.15(1) of the Administrative Tribunals Act. Consequently, I hold that this writ petition is not maintainable before this Court. The Registry shall return the Writ Petition. The decision taken as above shall be without prejudice to the right of the petitioners to approach the Kerala Administrative Tribunal for the reliefs prayed for in this Writ Petition. The Tribunal shall consider the matter untrammeled by any of the observations made by this Court while disposing of this writ petition.

There will be no order as to costs.