Nithin.O vs Union of India and Others

``` 2025:KER:27774 ``` **==> picture [57 x 57] intentionally omitted <==** ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR ``` ``` MONDAY, THE 17[TH] DAY OF MARCH 2025 / 26TH PHALGUNA, 1946 ``` ``` OP (CAT) NO. 189OF 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: ``` ``` 1THE UNION OF INDIA, REP BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF DEFENCE ( NAVY ), SOUTH BLOCK, NEW DELHI - 110001 2THE CHIEF OF NAVAL STAFF, INTEGRATED HEAD QUARTERS( FOR P & A ), MINISTRY OF DEFENCE ( NAVY ), ‘C’WING, SENABHAVAN, NEW DELHI - 110001 3MILITARY ENGINEER SERVICES ( MES), HEAD QUARTERS OF CHIEF ENGINEER, SOUTHERN COMMAND, PUNE, PIN - 411001 4MILITARY ENGINEER SERVICES ( MES) , COMMANDER WORKS ENGINEERS (NW), 4.KATARIBAGH, NAVAL BASE.P.O, COCHIN, PIN - 682004 5THE COMMANDING OFFICER IN ZAMORIN, EZHIMALA NAVAL ACADEMY. P.O, EZHIMALA, KANNUR, PIN - 670310 6MILITARY 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: ``` 2 OP(CAT) 189/2024 **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:27774 ``` ## **J U D G M E N T** ## **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.” OP(CAT) 189/2024 3 **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:27774 ``` 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. OP(CAT) 189/2024 4 **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:27774 ``` 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 OP(CAT) 189/2024 5 **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:27774 ``` 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 OP(CAT) 189/2024 6 ``` 2025:KER:27774 ``` **==> picture [57 x 57] intentionally omitted <==** 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 OP(CAT) 189/2024 7 ``` 2025:KER:27774 ``` **==> picture [57 x 57] intentionally omitted <==** 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 AnnexureA10. 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 OP(CAT) 189/2024 8 ``` 2025:KER:27774 ``` **==> picture [57 x 57] intentionally omitted <==** 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** Sd/- **JUDGE** **K. V. JAYAKUMAR JUDGE** Sbna/ OP(CAT) 189/2024 9 ``` 2025:KER:27774 ``` **==> picture [57 x 57] intentionally omitted <==** ## `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`| OP(CAT) 189/2024 10 ``` 2025:KER:27774 ``` **==> picture [57 x 57] intentionally omitted <==** |`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`| ||`2016`| |`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`|