Selection Process Cannot Be Initiated Without Chairman: Kerala High Court Stays Notification Appointing Judicial Members To KAT

The Kerala High Court recently stayed the notification issued by the Selection Committee of the Kerala Administrative Tribunal appointing Judicial members to the Tribunal on the ground that the selection process was initiated without a Chairman in the Committee. 

Justice P.B. Suresh Kumar while issuing the interim order observed that an Acting Chairman of the Tribunal cannot substitute the Chairman in the Selection Committee and that it was against the scheme of the statute

A series of litigations have been filed before the Court seeking expeditious appointment of a Chairman and Judicial members to the KAT citing that failure to do so will result in the functioning of the tribunal coming to a standstill. The Selection Committee was constituted as a consequence of one of such litigations.Factual Matrix:

Pursuant to two vacancies of Judicial Members arising in the KAT, the Selection Committee issued a notification on 1st July 2021, appointing two officers to these posts. 

The petitioner is a practising lawyer, reportedly an aspirant for appointment as Judicial Member in the Tribunal. He challenged notification issued by the Selection Committee arguing that Rule 3(2) of the Administrative Tribunals (Procedure for Appointment of Members) Rules, 2011, to the extent it provides for the inclusion of persons from executive offices of the State in the Selection Committee is ultra vires the basic structure of the Constitution. 

Contentions Raised:

The petitioner raised a myriad of objections to the aforesaid notification. One of the primary contentions was that the Selection Committee was not constituted in terms of Rule 3(2), which mandates that the Committee should consist of the Chief Justice of the Court, the Chief Secretary of the State, the Chairman of the Tribunal, and the Chairman of the Public Service Commission.

He submitted that though the office of the Chairman of KAT fell vacant on 15th September 2020, the vacancy was yet to be filled. Since the Tribunal does not have a Chairman, the Chief Justice, who is the Chairman of the Selection Committee directed the inclusion of the Acting Chairman of the Tribunal in the Committee.

The selection process was initiated accordingly based on the decision of the Selection Committee. 

According to the petitioner, the selection for appointment of Members of the Tribunal can be made only by a Selection Committee in which the duly appointed Chairman of the Tribunal is also a member.

It was added that a Member of the Tribunal authorized to act as the Chairman of the Tribunal, cannot substitute the Chairman of the Tribunal in the Selection Committee. Therefore, by way of an interim order, the petitioner sought a stay of operation of the notification and all further proceedings pursuant to the same.

Additional Advocate General on behalf of the respondents submitted that since the Acting Chairman of the Tribunal was a member of the Selection Committee, the decisions taken by the Selection Committee cannot be said to be bad. 

Findings of the Court:

The significant question before the Bench was whether the Acting Chairman of the Tribunal can substitute the Chairman in the Selection Committee.

the Court noted that in terms of Section 6(1) of the Act, only a person who is or has been a Judge of a High Court can be appointed as the Chairman of the Tribunal. However, persons possessing the qualifications mentioned in Section 6(2) can be considered for appointment as Administrative and Judicial Members of the Tribunal.

Referring to the decision in Rojer Mathew v. South Indian Bank Ltd. [(2020) 6 SCC 1], the Single Bench observed that it is now trite that the executive branches of the Government shall not hold a primacy in the matters of selection and appointment of Chairperson and Members of the Tribunals. 

It was further found that the scheme of the Act and the Rules is that a person who is, or has been, a Judge of a High Court shall be in the Selection Committee in addition to the Chief Justice of the concerned State. 

Taking note of Section 7(1) of the Act, the Court added that this provsion was only a power conferred on the State to authorize an Administrative or a Judicial Member of the Tribunal to act as the Chairman until a new Chairman was appointed.

"If it is held that a person authorised to act as the Chairman of the Tribunal can substitute the Chairman of the Tribunal in the Selection Committee, the Judicial primacy of the Selection Committee would not be maintained, for, in that event, even an Administrative Member who is permitted to act as the Chairman of the Tribunal would constitute the Selection Committee along with the Chief Justice of the State, the Chief Secretary of the State and the Chairperson of the State Public Service Commission, thereby compromising the judicial dominance over the appointment."

In the aforesaid circumstances, the Bench took the view that the selection process initiated without the Chairman of the Tribunal in the Selection Committee is against the scheme of the statute and that the petitioner successfully made out a prima facie case for an interim order. 

For that reason, the notification was stayed. However, it was clarified that this order will not preclude the Selection Committee from initiating a fresh selection process as and when a Chairman is duly appointed for the Tribunal.

Assistant Solicitor General P.Vijayakumar took notice for the Centre, Senior Advocate Renjith Thampan appeared for the petitioner and Additional Advocate General Ashok M. Cherian represented the State in the matter. 

Case Title: Biju T.T v. Union of India & Ors. 

Click Here To Read The Order