Kerala High Court
Nithin.O vs The Union Of India on 17 March, 2025
Author: Amit Rawal
Bench: Amit Rawal
2025:KER:27774
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
MONDAY, THE 17TH DAY OF MARCH 2025 / 26TH PHALGUNA, 1946
OP (CAT) NO. 189 OF 2024
AGAINST THE ORDER DATED 22.02.2024 IN OA NO.97 OF 2021 OF
CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
PETITIONER/APPLICANT:
NITHIN.O, AGED 33 YEARS
S/O NARAYANAN, KURDIYADI HOUSE, PUNCHAKKAD, P.O.PAYYANNUR,
KANNUR DISTRICT, KERALA, PIN-, PIN - 670307
BY ADV M.R.JAYALATHA
RESPONDENTS/RESPONDENTS:
1 THE UNION OF INDIA, REP BY THE SECRETARY TO THE GOVERNMENT
OF INDIA, MINISTRY OF DEFENCE ( NAVY ), SOUTH BLOCK, NEW
DELHI - 110001
2 THE CHIEF OF NAVAL STAFF, INTEGRATED HEAD QUARTERS( FOR P &
A ), MINISTRY OF DEFENCE ( NAVY ), 'C'WING, SENABHAVAN, NEW
DELHI - 110001
3 MILITARY ENGINEER SERVICES ( MES), HEAD QUARTERS OF CHIEF
ENGINEER, SOUTHERN COMMAND, PUNE, PIN - 411001
4 MILITARY ENGINEER SERVICES ( MES) , COMMANDER WORKS
ENGINEERS (NW), 4.KATARIBAGH, NAVAL BASE.P.O,
COCHIN, PIN - 682004
5 THE COMMANDING OFFICER IN ZAMORIN, EZHIMALA NAVAL ACADEMY.
P.O, EZHIMALA, KANNUR, PIN - 670310
6 MILITARY ENGINEER SERVICES ( MES)
COMMANDER WORKS ENGINEERS, EZHIMALA NAVAL ACADEMY. P.O,
EZHIMALA, KANNUR, PIN - 670310
OTHER PRESENT:
SRI T C KRISHNA DSGI IN CHARGE
THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 17.03.2025, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
OP(CAT) 189/2024
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JUDGMENT
K. V. JAYAKUMAR, J
This OP(CAT) is directed against the order of the Central
Administrative Tribunal in O.A.No.97/2021 dated 22.02.2024, whereby
the following claim of the petitioner/applicant has been rejected.
"(i) Issue an order or direction directing the 3rd to
5th respondents to appoint the remaining 52 candidates on
the existing vacancies in the post of Military Engineer
Services (MES) Mate tradesman as per Notification No.
132501/LRS/2013-14/E1B(S).
(ii) Issue an order or direction directing the 4th &
5th respondents to appoint the applicant herein in the post
of Military Engineer Services (MES) Mate tradesman as
per Notification No. 132501/LRS/2013-14/E1B(S) as per
his turn.
(iii) Issue an order or direction directing the 3rd to
5th respondents to consider and pass orders on Annexure
A13 representation filed by the applicant, with notice to
him and after affording him an opportunity of being heard,
within a time limit fixed by this Hon'ble Court.
(iv) Declare that the remaining 52 candidates also
entitled to be appointed on the existing vacancies in the
post of Military Engineer Services ( MES) Mate tradesman
as per Notification No. 132501/LRS/2013-14/E1B(S).
(v) Award costs incidental to this Application
and
(vi) Pass such other orders or directions which are deemed
just, fit, proper and necessary in the facts and
circumstances of the case."
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2. Succinctly, the facts in brief for the adjudication of
the controversy are as follows:
The petitioner/applicant, Nithin O, is a Matriculate and also
possesses certificate in ITI which are the requisite qualifications for the
post of Mate Tradesman in the Military Engineer Service in response to
the notification issued by the respondents. The respondents notified 762
vacancies of MES Mate Tradesman (semi skilled staff) in various
disciplines, including 63 vacancies for MES Ezhimala. The petitioner
attended the written test conducted on 10.04.2016. The applicant got
information in reply to the query made under the Right to Information
Act that a list of 15 selected candidates were published through online in
the MES website and also in Hindu-Mathrubhumi daily. The petitioner
made Annexure-A13 representation to the respondents.
3. The grievance of the petitioner before the Tribunal
and before us is that, even though there are 63 vacancies notified for
MES Ezhimala for the post of Mate Tradesman, only 15 persons were
selected and therefore, the petitioner seeks a direction to fill up the
remaining vacancies. The case of the petitioner is that, non-publication
of the rank list is illegal and arbitrary.
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4. The respondents/Union of India and its officers
contended that the petitioner had challenged the selection process, after
participating in it and could not clear the selection process. Intimations
were given to the candidates who are successful in the selection process.
The vacancies of Mate Tradesman has been reduced to 15 due to
reduction of posts by the Government and placement of staff on contract
basis.
5. Noticing the rival contentions of the counsel for the
parties, the Tribunal rejected the claim of the petitioner.
6. The learned counsel for the petitioner/applicant
submitted that the impugned order of the Central Administrative
Tribunal is legally unsustainable and unjustified.
7. Per contra, Adv.T.C.Krishna, Deputy Solicitor
General of India-in-Charge submitted that the reasoning of the Tribunal
is proper and correct and no interference from this Court is warranted
under Article 227 of the Constitution of India.
8. We have heard the rival contentions of the counsel
for the parties and perused the paper book.
9. The main contention of the learned counsel for the
petitioner is that the Tribunal ought not have accepted the respondents
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argument that the vacancies were reduced due to the policy change of
the Parliament. The Government cannot act arbitrarily in not filling the
vacancies once they are advertised unless contrary sound reason for not
doing so. It is further contended that the Supreme Court held that,
procedural transparency is essential in public recruitment and any
deviation from the declared process must be justified with valid reasons.
10. The Tribunal, after evaluating the materials on
record, dismissed the OA. The relevant paragraphs are extracted
hereunder:
"12. The basis of the contention of the
respondents is that the applicant did not come out
successful in the written test, so that there was no occasion
to call him for skill test or interview. Even though the
applicant filed a rejoinder, this aspect has been eschewed.
The very fact that he did not qualify in the written test alone
is sufficient to say that he has proved himself disentitled to
claim to be appointed.
13. Secondly, even if it is assumed that he was
selected and included in the rank list, that does not give rise
to an indefeasible right to be appointed. The applicant had
only attended the written test and did not qualify to be
called for further procedures like skill test and Interview.
That aspect cuts the very root of the claim of the applicant.
14. Moreover, with reference to Annexure-R3 it
has been pointed out that out of total 119505 posts of
various Group-C industrial category employees, only
110201 was retained and 9304 posts were abolished. Even
though 762 posts were notified in the said selection
notification, many posts were abolished after the
commencement of the process of selection. For Ezhimala
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centre a list of 15 selected candidates alone was published.
It is the policy of the Government not to fill up all the
vacancies. Moreover, out of the 83 vacancies, barring 15, all
were abolished. Therefore, the claim that he should be
appointed in one of the remaining vacancies cannot be
sustained. It is also not known as to how he gets right for
representing the remaining candidates, who were not
selected, who are not in the picture. A person who has not
even qualified cannot seek appointment. Therefore, the
case of the applicant has no legs to stand upon.
15. The decisions relied on by the learned
counsel for the applicant also cannot help the applicant.
The decision in Sonia, quoted supra, deals with a case
where after the selection process, despite the fact that there
was provision in the notification that Scheduled Caste and
Scheduled Tribe vacancies are interchangeable, the
respondents issued notification deleting such a provision.
Therefore, the applicant who is a Scheduled Caste
candidate staked claim for the Scheduled Tribe vacancy,
which was rejected on the basis COURT O of an Office
Memorandum issued subsequently, deleting the clause
permitting interchangeability. That was found
unsustainable.
16. The decision of the Hyderabad Bench of this
Tribunal also turned up on its own facts. That was a case in
which the candidate had scored high and got qualified in
EWS category. After commencement of the selection
process the respondents filled up EWS vacancies through
Rule 38 transfers (of the Postal Manual) which was found
unsustainable.
17. Here, as mentioned earlier, the applicant did
not qualify in the written test. That alone is sufficient to
decline the claim of the applicant. Moreover, the decision in
Balakrushna Behera, quoted supra, relied on by the
learned counsel for the respondents is very relevant and
applicable. There, relying on the decision in Shankarsan
nash vs Union of India (1991) 3 SCC 471, it was
pointed out that a selected candidate has no indefeasible
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right to be appointed to the post because a selection does
not confer a right of getting appointment, which can be
enforced by filing a Writ Petition under Article 226 of the
Constitution. This Full Bench decision has been widely
quoted in large number of subsequent decisions.
18. In other words, it is the settled proposition of
law that enlistment of name in select list neither creates a
right nor a со-relative obligation for appointment. In a
recent judgment in Jaseena C.K. v. State of Kerala
[2023 (3) KLT 535], a Division Bench of the Kerala High
Court held that an appointing authority may, for good and
sufficient reasons, take a decision not to fill up existing
vacancies and merely on account of the fact that there is a
ranked list in force, High Court will not, in exercise of its
jurisdiction under Article 226 of the Constitution compel
the appointing authority to fill up the vacancies.
19. Here the case of the applicant is worse, as
indicated earlier.
20. It is true that the stand of the respondents in
hesitating to disclose the details sought by the applicant is
not understandable. Similarly, through Annexure-A20 it is
shown that one Sajeesh was appointed as Mate (Fitter Pipe)
on 25.06.2018 whose name does not figure in Annexure-
A10. It is stated that he was appointed in the place of an
unwilling candidate of the same category. Both these
matters are not comprehensible. But that ipso facto will not
advance the case of the applicant since it has to fall on its
own weight.
After evaluating the circumstances, we have no
doubt that the applicant is bound to fail. He is not entitled
to get any relief and the Original Application is dismissed.
No costs."
11. The reasoning of the Tribunal in rejecting the claim of
the petitioner is two fold. Firstly, the petitioner did not come out
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successfully in the written test and so that he was not called for a skill test
or interview. Secondly, the inclusion of name of the candidate in the
selection list does not give rise an indefeasible right for appointment. We
are in agreement with the aforementioned reasons.
12. Upon hearing the submissions of the counsel for the
parties and on perusal of the paper book, we do not find any illegality or
perversity in the order of the Central Administrative Tribunal. No good
ground for interference is made out.
OP(CAT) fails and therefore, it is dismissed.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
Sbna/
OP(CAT) 189/2024
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APPENDIX OF OP (CAT) 189/2024
PETITIONER ANNEXURES
Annexure A1 A TRUE COPY OF APPLICATION DATED 03.11.2017
UNDER RTI ACT
Annexure A2 A TRUE COPY OF COMMUNICATION DATED ON
17.11.2017
Annexure A3 TRUE COPY OF LETTER DATED 28.11.2017
Annexure A4 A TRUE COPY OF REPLY UNDER RTI ACT DATED
13.12.2017
Annexure A5 A TRUE COPY OF REPLY UNDER RTI ACT DATED
27.12.2017
Annexure A6 A TRUE COPY OF APPEAL UNDER RTI ACT DATED
31.01.2018
Annexure A7 A TRUE COPY OF REPLY UNDER RTI ACT DATED
09.03.2018
Annexure A8 A TRUE COPY OF APPEAL UNDER RTI ACT DATED
07.11.2018
Annexure A9 A TRUE COPY OF REPLY UNDER RTI ACT DATED
12.11.2018
Annexure A10 TRUE COPY OF NEWSPAPER PUBLICATION
Annexure A11 A TRUE COPY OF APPLICATION UNDER RTI ACT DATED
25.11.2020
Annexure A12 APPLICATION SEEKING INFORMATION UNDER RTI
DATED 15.12.2020
Annexure A13 A TRUE COPY OF REPRESENTATION FILED BY THE
APPLICANT DATED ON 27.1.2021 TO THE 3RD TO 5TH
RESPONDENTS
Annexure A14 TRUE COPY OF NEWSPAPER PUBLISHED ON 28.11.2015
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Annexure 14a A TRUE ENGLISH TRANSLATION OF THE NOTIFICATION
PUBLISHED IN THE NEWPAPER
Annexure A15 A TRUE COPY OF APPLICATION S UNDER RTI DATED
27.07.2021
Annexure A16 A TRUE COPY OF REPLY UNDER RTI ACT DATED
09.08.2021
Annexure A17 A TRUE COPY OF APPLICATION SEEKING INFORMATION
UNDER RTI DATED 11.09.2023
Annexure A18 A TRUE COPY OF REPLY UNDER RTI ACT DATED DATED
26.09.2023
Annexure A19 A TRUE COPY OF APPLICATION SEEKING INFORMATION
UNDER RTI DATED 21.10.2023
Annexure A20 A TRUE COPY OF REPLY UNDER RTI ACT DATED DATED
18.11.2023
Annexure R1 A TRUE COPY OF HQ CE SC PUNE LETTER
NO132501/LRS/13-14/2126/E1B(S) DATED 26 MAY
Annexure R2 A TRUE COPY OF HINDU NEWSPAPER CUTTING WHERE
SELECTION OF 15 CANDIDATES WERE PUBLISHED
DATED ON 24.11.2012 ALONG WITH TRUE TYPED COPY
Annexure R3 DG(PERS),HQ MES ,NEW DELHI LETTER NO
B/20173/NAC/883/E1C(1) DATED ON 01.06.2020
Exhibit P1 A TRUE COPY OF THE ORIGINAL APPLICATION IN
O.ANO.180/0097/2021
Exhibit P2 A TRUE COPY OF THE REPLY FILED BY THE 2ND &
3RD RESPONDENTS
Exhibit P3 A TRUE COPY OF THE REJOINDER FILED BY THE
APPLICANT DATED 12.12.2022
Exhibit P4 O.A JUDGEMENT NO.180/0097/2021 DATED ON
22.02.2024
