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2019 DIGILAW 324 (KER)

Joemon v. Sajeev

2019-04-04

A.M.BABU, V.CHITAMBARESH

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ORDER : V. CHITAMBARESH, J. 1. The Registry has raised an objection to the numbering of these Original Petitions pointing out that the common petitioner being not a party to the impugned order of the Kerala Administrative Tribunal should have first applied for its review as per law. The petitioner contends that he would be treated as a party to the order impugned since some others were impleaded allegedly in a representative capacity after paper publication and that therefore the Original Petitions are the remedy. 2. The common order of the Kerala Administrative Tribunal in O.A.Nos.857/2017 and 1566/2017 to which the petitioner in these Original Petitions is not an eo nomine party inter alia states as follows: “The applicants, it is noted, had taken out paper publication and had also impleaded respondents 5 to 9 in a representative capacity. Respondents 5 to 9 have entered appearance and have preferred their reply statements in the matter.” Does the Administrative Tribunals Act, 1985 (‘the Act’) or the Kerala Administrative Tribunal (Procedure) Rules, 2010 (‘the Rules’) enable the impleadment of the parties in a representative capacity? 3. The Tribunal shall have for the purpose of discharging its functions under the Act the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 while trying a suit in respect of matters enumerated under S.22(3) of the Act. The same does not include the power under Order I Rule 8 of the Code of Civil Procedure, 1908 whereby persons having the same interest could be impleaded in a representative capacity after obtaining permission from court. The court while granting permission would direct notice to be taken by paper publication if the parties are numerous and the decree passed shall be binding on all persons for whose benefit the suit is instituted or defended. Such a provision is conspicuously absent in the Rules even though a similar provision can be found in Rule 148 of the Rules of the High Court of Kerala, 1971 dealing with the procedure in Original Petitions. 4. Such a provision is conspicuously absent in the Rules even though a similar provision can be found in Rule 148 of the Rules of the High Court of Kerala, 1971 dealing with the procedure in Original Petitions. 4. The only provision in the Rules is Rule 10(3) thereof which is extracted hereunder: “(3) Notwithstanding anything contained in sub-rule (1), the Tribunal may, taking into account the number of respondents and their place of residence or work and other circumstances, direct that notice of the application shall be served upon the respondents in any other manner, including any manner of substituted service, as it appears to the Tribunal just and convenient.” The above provision at best enables an applicant before the Tribunal to take notice to the numerous respondents in the original application by affixture or paper publication to their residence or place of work if personal service is found impossible. The respondents should be made eo nomine parties to the original application if the order is to be made binding on them and there is no provision at all to implead a few having common interest in a representative capacity. The order if any passed by the Tribunal without the affected party on the party array would not be binding on him and there is no necessity for such person either to apply for review or to file an Original Petition challenging the same. 5. The parties shall not be driven to review when the order of the Tribunal borders on fraud for having secured the same behind their back nevertheless affecting their interest directly (See: Rajesh P.J. & Ors. v. Sabu V.A. & Ors. 2019 (2) KHC 143 (D.B.)). The instant case is similar where the Tribunal has by the order-impugned directed the Kerala Public Service Commission to recast the ranked list and cancel the advices already made including that of the petitioner. There is no escape from impleading when the applicants before the Tribunal were in the know of the names and addresses of the appointees (100 in number) furnished in the appointment chart produced by them. The petitioner is threatened with ouster from service pursuant to the order impugned which is a direct result of the enforcement of the directions contained therein and we fail to see as to how these Original Petitions are not maintainable. 6. The petitioner is threatened with ouster from service pursuant to the order impugned which is a direct result of the enforcement of the directions contained therein and we fail to see as to how these Original Petitions are not maintainable. 6. It is for the legislature to amend the Rules appropriately to enable impleadment of parties in a representative capacity in original applications before the Tribunal in a case where the name and address of the interested parties are difficult to obtain. A copy of this order shall be forwarded by the Registry to the concerned department of the State Government to take remedial steps since the Rules as it now stand do not permit impleadment in a representative capacity. The objection is overruled and the Registry is directed to number these Original Petitions.