KAT Advocates' Association Approaches High Court Seeking Appointment Of Chairman And Extension Of Judicial Members By Another Term

The Public Interest Litigation elaborated on how the Kerala Administrative Tribunal (KAT) consists of at least one judicial and one administrative member. At present, there are three Division Benches in the Tribunal, out of which term of two administrative members has already expired. The term of the Chairman also expired on 05.09.2020 and these posts have been vacant ever since.

The petition mentions that the term of two judicial members will expire on 19.07.2021. Thereafter, there will be no judicial members. The Tribunal cannot hold sitting without Judicial Members, implying that the entire adjudicatory functions of the KAT will come to a standstill. Yet regrettably, no orders have been passed extending the term of these judicial members.

This will jeopardize the interest of the entire litigant public who move the Tribunal for redressal of their grievances regarding "service matters", the petition read.

Since the Central Government has not framed rules regarding selection/appointment of Chairman of the Tribunal, the precedents adopted by the state is usually followed. Accordingly, the Chief Justice of Kerala had nominated a new Chairman and the State Government already forwarded this proposal to the Government of India with the Governor's approval earlier this year.

However, the petition states that the proposal despite having obtained response of CJI, was still pending before the Appointment Committee of the Cabinet since 05^th February 2021 to be forwarded to the President. Approval of the Cabinet Committee is not provided in the Act, yet no action to forward the proposal to the President has been done despite the expiry of 4 months from CJI's response.

The petition also highlighted the interim order passed by this Court, directing the competent authority to take a decision on the recommendation for appointment of chairman to the Tribunal within three weeks. However, no action has been taken pursuant to the interim order till date.

While urging for an extension of the existing judicial members in the tribunal, reliance has been placed on Shankar Raju Vs. Union of India [2011 (2) SCC 132], where it was observed as follows:

"In the normal course, this term of five years is extendable by a term of another five years, giving a person a total term of 10 years. Continuation from 5 years to 10 years, appears to be as a matter of course subject to exceptions as provided in service law jurisprudence. "

The petition also stressed on the fact that during the pendency of the said petition before the Apex Court, the term of the Chairpersons, ViceChairpersons and members of the Tribunal were extended till 31/12/2020.

On these lines, the PIL argues that the judicial members whose term is to expire on 19.07.2021 be given extension for another term of 5 years, subject to attaining the age of 65 years. Since no action has been taken till date, such extension is automatic and that formal orders should be issued extending the term of the present judicial members by another five years or until they attain the age of 65 years, whichever is earlier.

Moreover, the petition provides a detail scrutiny of the rules in place for the appointment of chairman and members of a State Tribunal. Upon perusal of the 8th schedule of Finance Act 2017, it was found that the Central government had not provided any method for such their appointment. This pointed to a legal vacuum regarding the qualification and method of appointment of the members of the State Administrative Tribunals.

It was also pointed out that since the two judicial members were appointed before the commencement of Finance Act 2017, they would not be bound by Section 10(B) of the Act.

The petition admits that there are no Rules for issuing extension of term of members, and that no selection committee is needed for such extension, since it is "not re-appointment or fresh appointment". Therefore, the petitioners argued that the inaction of the State Government was highly arbitrary and illegal.

The petitioners also cited Comptroller and Auditor General of India v K.S. Jagannathan & Anr. [1986(2)SCC-679], where it was held that the High Courts in India under Art.226 have the power to issue a writ of mandamus where the government/public authority failed to exercise the discretion conferred upon it by a statute/rule/policy decision of the Government.

As such, it was prayed that a Chairman be appointed to the Kerala State Tribunal, and that the formal orders be passed to extend the tenure of the existing Judicial Members by one more term, till the completion of another five years or attainment of 65 years of age, whichever is earlier.

An interim relief to permit the present judicial members of the Kerala Administrative Tribunal to continue to hold their office subject to the age restriction of 65 years, pending disposal of the writ petition was also sought for in the petition.