Kerala High Court
Union Of India vs K. Musthafa on 12 June, 2024
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 12TH DAY OF JUNE 2024 / 22ND JYAISHTA, 1946
OP (CAT) NO. 210 OF 2016
AGAINST THE ORDER/JUDGMENT DATED 05.11.2015 IN OA NO.962 OF 2011 OF
CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
PETITIONERS/RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY SECRETARY TO GOVT. OF INDIA, MINISTRY OF
DEFENCE NEW DELHI - 1.
2 THE FLAG OFFICER COMMANDING-IN-CHIEF, HEADQUARTERS,
SOUTHERN NAVAL COMMAND, NAVAL BASE, KOCHI - 4.
3 THE CHIEF STAFF OFFICER (P&A), HEADQUARTERS, SOUTHERN
NAVAL COMMAND NAVAL BASE, KOCHI - 4.
BY ADV SRI.T.V.VINU, CGC
RESPONDENT/APPLICANT:
K. MUSTHAFA
AGED 41 YEARS
41 YEARS, S/O. HAMSA, KARIMBANAKAL HOUSE, PERIMBADARI
P.O., PALAKKAD DISTRICT - 678 762.
BY ADV SRI.T.A.RAJAN
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 12.06.2024, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (CAT) NO. 210 OF 2016
2
AMIT RAWAL & EASWARAN S., JJ.
------------------------------------
OP (CAT) No.210 of 2016
-------------------------------------
Dated this the 12th day of June, 2024
JUDGMENT
Easwaran S., J.
The respondents before the Central Administrative Tribunal,
Ernakulam are the petitioners herein. The application was filed by
the respondent/applicant seeking to challenge Annexure-A8 order by
which the claim of the applicant for absorption in the trade of Pipe
Fitter (SK) was declined. The averments in the original application
reveal that despite possessing requisite qualification, the applicant
was not considered for further promotion to the post of Tradesman
(skilled). According to the applicant, the relevant Rules which
governs such selection is under Annexure-A4. Under Annexure-A5,
the vacancy available to the post of Pipe Fitter (SK) was also
established. Though a representation was given, the same was
rejected which led to filing of the original application.
2. The claim of the applicant was resisted by the
respondents on the ground that Annexure-A4 Recruitment Rules are
no longer in existence and the same is replaced by fresh
OP (CAT) NO. 210 OF 2016
Recruitment Rules for Tradesman in Indian Navy as promulgated in
the Gazette of India dated 9.6.2012. Therefore, the rejection of the
claim was justified. Other contentions were also raised.
3. The Tribunal on examination of the contentions raised by
the respective party, came to the conclusion that the vacancies had
arisen before the promulgation of Annexure-R3 Recruitment Rules
and therefore, the claim of the applicant was upheld and the
Tribunal directed the petitioners to consider the entitlement of the
applicant as Pipe Fitter (SK) in the existing OBC vacancy. Added to
the above, certain additional directions were also issued in
paragraph No.6 of the order, wherein the Tribunal found that
Annexure-R3 Recruitment Rules do not contain any reservation post
in the feeder category of SK and therefore, directed the respondents
to re-examine Annexure-R3 Recruitment Rules and to provide
minimum of 10% reservation of posts in SK for the feeder grade,
age restriction not being a bar.
4. We have heard Sri.T.V.Vinu, learned Central Government
Counsel appearing for the petitioners/respondents and
Sri.T.A.Rajan, learned counsel appearing for the
respondent/applicant.
OP (CAT) NO. 210 OF 2016
5. The learned Central Government Counsel appearing for
the petitioners, Sri.T.V.Vinu, contended that the Tribunal was not
justified in issuing direction to revisit the Recruitment Rules, since it
is not within the domain of the court to direct the Departmental
authorities to frame Rules in a particular manner. He further added
that the direction to consider the claim of the respondent/applicant
in the existing vacancy of OBC cannot also be sustained because the
said vacancy has already been filled up.
6. On the other hand, Sri.T.A.Rajan, the learned counsel
appearing for the respondent/applicant, would contend that the
direction of the Tribunal to consider the claim of the applicant in the
existing OBC vacancy does not suffer from any illegality or
impropriety, in so much as the vacancy had arisen before the
amended Recruitment Rules came into effect in the year 2012.
Therefore, the vacancies which are set apart for promotion prior to
the promulgation of the Recruitment Rules, cannot be filled up by
applying the amended Rules. Therefore, he prayed for dismissal of
the original petition.
7. We have considered the rival submissions raised across
the bar.
OP (CAT) NO. 210 OF 2016
8. When we analyse true purport of the directions contained
under the order impugned, we do not find any illegality or
jurisdictional error or impropriety on the part of the Tribunal in
having issued the direction to the petitioners to consider the case of
the applicant in existing OBC vacancy to the post of Pipe Fitter (SK).
The Tribunal was justified in holding that the promotion to the
vacancies that arose prior to the amended Recruitment Rules in the
year 2012, cannot be done on the basis of the amended Rules.
9. However, we are inclined to accept the argument of
Sri.T.V.Vinu, learned Central Government Counsel appearing for the
petitioners, that the directions of the Tribunal in the concluding
portion of paragraph 6 of the order impugned cannot be sustained.
It is now settled law that the court cannot issue directions to the
Union of India to promulgate a rule for promotion in a particular
manner. The Rule making power is, no doubt, within the domain of
the Union of India. Therefore, the Tribunal having issued such
direction, has clearly exceeded its jurisdiction conferred on it under
the provisions of the Administrative Tribunals Act, 1985. Therefore,
to that extent, the directions of the Tribunal are liable to be set
aside and we do so.
OP (CAT) NO. 210 OF 2016
10. In the result, the Original Petition is partly allowed. The
direction of the Tribunal to frame Rules for promotion by providing
10% reservation in the feeder category is set aside. The direction to
consider the entitlement of the applicant for the existing OBC
vacancy for appointment to the post of Pipe Fitter (SK) is sustained.
The original petition is ordered accordingly. No order as to
costs. Sd/-
AMIT RAWAL
JUDGE
Sd/-
EASWARAN S.
JUDGE
jg
OP (CAT) NO. 210 OF 2016
APPENDIX OF OP (CAT) 210/2016
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE OA NO.962/2011 DATED 20.09.2011
FILED BY THE RESPONDENT.
ANNEXURE A1 TRUE COPY OF THE 1ST PAGE OF THE SSLC BOOK OF
THE APPLICANT.
ANNEXURE A2 TRUE COPY OF THE CERTIFICATE OF APPRENTICESHIP
OF THE APPLICANT DATED 30.08.1991.
ANNEXURE A3 TRUE COPY OF THE NATIONAL APPRENTICESHIP
CERTIFICATE OF THE APPLICANT.
ANNEXURE A4 TRUE COPY OF THE RELEVANT PORTION OF THE
RECRUITMENT RULES DEALING WITH THE POST OF
TRADESMAN SKILLED.
ANNEXURE A5 TRUE COPY OF THE ORDER NO.CS 2764/11/70 DATED
13.08.2010.
ANNEXURE A6 TRUE COPY OF THE 13 POINT ROSTER IS MAINTAINED
IN THE TRADE OF PIPE FITTER (SK)
ANNEXURE A7 TRUE COPY OF THE REPRESENTATION DATED 03.11.2010
SUBMITTED BY THE APPLICANT.
ANNEXURE A8 TRUE COPY OF THE ORDER NO.CS 2764//63 DATED
12.11.2010 OF THE 2ND RESPONDENT.
Exhibit P2 TRUE COPY OF THE REPLY STATEMENT IN O.A.NO.962
OF 2011 DATED 12.12.2011 FILED BY THE
PETITIONERS.
Exhibit P3 TRUE COPY OF THE REJOINDER IN O.A.NO.962 OF 2011
DATED 16.03.2013, FILED BY THE RESPONDENT.
Exhibit P4 TRUE COPY OF THE ORDER IN OA NO.962/201 DATED
25.08.2013, OF THE CENTRAL ADMINISTRATIVE
TRIBUNAL, ERNAKULAM BENCH.
Exhibit P5 TRUE COPY OF RA NO.38 OF 2013 IN O.A.NO,962 OF
2011 DATED 23.09.2013, FILED BY THE RESPONDENT.
ANNEXURE RA1 TRUE COPY OF THE ORDER IN OA NO.962 OF 2011
OP (CAT) NO. 210 OF 2016
DATED 26.08.2013.
Exhibit P6 TRUE COPY OF THE REPLY STATEMENT IN OA
NO.962/2011 DATED 13.08.2014, FILED BY THE
PETITIONER.
ANNEXURE R1 TRUE COPY OF HON'BLE CAT ERNAKULAM BENCH ORDER
DATED 26.08.2013.
ANNEXURE R2 TRUE COPY OF THE HON'BLE TRIBUNAL ITERIM ORDER
DATED 08.07.2014.
ANNEXURE R3 TRUE COPY OF THE GAZETTE OF INDIA DATED
09.06.2012.
ANNEXURE R4 TRUE COPY OF HON'BLE TRIBUNAL ORDER DATED
23.02.2012 IN OA 721 OF 2010.
Exhibit P7 TRUE COPY OF THE REPLY STATEMENT IN RA
NO.38/2013 IN OA NO.962 OF 2011 DATED
24.06.2014, FILED BY THE PETITIONERS.
ANNEXURE RR1 TRUE COPY OF HON'BLE CAT ERNAKULAM BENCH ORDER
DATED 23.02.2012 IN OA 721 OF 2010.
ANNEXURE RR2 TRUE COPY OF THE GAZETTE OF INDIA DATED
31.05.2012.
Exhibit P8 TRUE COPY OF THE ORDER IN OA NO.962 OF 2011
DAGED 05.11.2015 OF THE CENTRAL ADMINISTRATIVE
TRIBUNAL, ERNAKULAM BENCH.
