High Court of KeralaDivision Bench2019-02-25Original Petition dismissed.

Ranesh Babu and others v. State of Kerala and others

Case / Petition Number:OP(KAT).No. 84 of 2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. T. Ravikumar
V. G. Arun
Judgment Date: 2019-02-25
Court Decision / Holding: This Original Petition is devoid of merit and accordingly, it is dismissed.
Final Disposition: Original Petition dismissed.

Parties to the Case

Appellants / Petitioners

RANESH BABU
KAJEESH KUMAR K
SAMSON
ANIL R.

Respondents

STATE OF KERALA represented by its Secretary, DEPARTMENT OF FISHERIES AND PORT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001
THE DIRECTOR OF PORT, OFFICE OF THE DIRECTOR OF PORT (PORT DIRECTORATE), VALIYATHURA, VALLAKKADAVU P.O, THIRUVANANTHAPURAM695 008
THE DISTRICT OFFICER PORT OFFICE, ASARAMAM, KOLLAM-691 002
KERALA PUBLIC SERVICE COMMISSION (KPSC) REPRESENTED BY ITS SECRETARY, PATTOM PALACE P.O, THIRUVANANTHAPURAM-695 004
THE DISTRICT OFFICER KERALA PUBLIC SERVICE COMMISSION (KPSC), DISTRICT OFFICE, AANDAMUKKOM, KOLLAM-691 001
VINOD P.K. S/O. KOCHUVAVA, AGED 42 YEARS, PANDYAN PARAMBIL THOTTAPPALLY P.O, ALAPPUZHA, KERALA-688 563
THOMAS A S/O. ANTONY, AGED 31 YEARS, LOORTHUKIZHAKKA, ERAKKUM, MALIBHAGAM, CHAVARA SOUTH P.O, KOLLAM, KERALA-691 584

Legal Representation & Advocates

Counsels for Petitioners

• SRI.DIPU.R
• SMT. DEVI KRIPA R.
• SMT.DHANYA BABU
• SMT.P.A.PRIYA
• SRI.K.S.BAIJU
• SRI.SANAL P.RAJ

Counsels for Respondents

• G.P.SRI.ANTONY MUKKATH
• SRI.P.C.SASIDHARAN, S.C FOR P.S.C.

Case Synopsis & Summary

This is an Original Petition filed in the Kerala High Court challenging a Kerala Administrative Tribunal (KAT) order dated 27 February 2018 in OA (EKM) No. 929 of 2017. The petitioners, four rank-holders from a PSC list published for the Seaman post in Kollam District (Annexure A4 list), contended that there were 30 vacancies as on 25 March 2017 and that the vacancies should be filled from the Annexure-A4 list, with ad- vises issued to rank-holders within a week after reporting vacancies. The respondents argued that although 49 Seaman posts are sanctioned in Kollam, there was no current requirement to fill further posts due to financial constraints and policy directions; two vacancies were reserved for NCA, and existing posts were necessary for operation of floating crafts and related duties. The Tribunal relied on Supreme Court precedents—including State of Orissa v. Raj Kishore Nanda (2010) 6 SCC 777; TN Administrative Officers v. Union of India (2000) 5 SCC 728; Vinodan T. v. University of Calicut (2002) 4 SCC 726; and State of Haryana v. Subash Chander Marwaha (1974) 3 SCC 220—to hold that even with vacancies, there is no vested right to appointment and that the employer may decide not to fill posts. The High Court of Kerala, while affirming the Tribunal’s approach, held the petition devoid of merit and dismissed the Original Petition. The judgment underscores the discretionary nature of recruitment decisions in public employment and the absence of a guaranteed right to appointment merely because of existence of vacancies or eligibility lists.

Legal Doctrines & Maxims

Even if vacancies exist, the State is not bound to fill up such vacancy nor is there any corresponding right vested in an eligible employee to demand that such post be filled up.
The principle that persons merely selected for a post do not thereby acquire a right to be appointed to such post.
A vacancy may be left unfilled if the employer, for administrative, economical or policy reasons, chooses not to fill it.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that their rank-list (Annexure A4) should govern appointments to the Seaman posts in Kollam District; they sought reporting of all vacancies (as on 27.5.2017) and directions to issue advise orders to rank-holders within a week. They urged that there were 30 vacancies as on 25.3.2017 (per Annexure A9) and that appointments must be made strictly from the Annexure-A4 list.

Contentions of Respondents

The respondents argued that although 24 vacancies were reported and 22 candidates were advised, two vacancies were kept for NCA notification. There are 49 sanctioned posts, but the department stated that not all are currently required; the posts are required for operation and maintenance of floating crafts, and the department has instead redirected Seamen to other duties. Financial constraints and government directions prohibit further appointments; the employer retains discretion to decide the number of appointments, and there is no vested right in an eligible employee to demand appointment.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
State of Orissa and another v Raj Kishore Nanda and others	(2010) 6 SCC 777	Positive	The Tribunal relied on this decision to hold there could be no direction to fill further vacancies; the High Court affirmed this principle.
TN Administrative Officers v Union of India	(2000) 5 SCC 728	Positive	Used to support that the State may decide not to fill vacancies for administrative, economical, or policy reasons.
Vinodan T. and others v. University of Calicut and others	(2002) 4 SCC 726	Positive	Restates the principle that selected candidates do not acquire a right to appointment merely by selection.
State of Haryana v Subash Chander Marwaha	(1974) 3 SCC 220	Positive	Cited as well-settled principle that vacancy existence does not compel appointment.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Ranesh Babu and others v. State of Kerala and others and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY ,THE 25TH DAY OF FEBRUARY 2019 / 6TH PHALGUNA, 1940** **OP(KAT).No. 84 of 2019** **AGAINST THE ORDER IN OA 929/2017 OF KERALA ADMINISTRATIVE TRIBUNAL (CAMP SITTING, ERNAKULAM) DATED 27-02-2018** ## **PETITIONERS:** |**1**|**RANESH BABU**| |---|---| ||**AGED 41 YEARS**| ||**S/O. V.K. BABU, SATHEESH BHAVANAM, KARUMADY**| ||**P.O, ALAPPUZHA-688 561, KERALA.**| |**2**|**KAJEESH KUMAR K**| ||**AGED 41 YEARS**| ||**S/O. KANAKARAJAN, ATTUPARAMBIL,**| ||**PANDARATHURUTHU, CHERIYAZEKKAL P.O,**| ||**KARUNAGAPPALLY, KOLLAM-690 573**| |**3**|**SAMSON**| ||**AGED 39 YEARS**| ||**S/O. VARGHESE, CHERIYAMBALATHU HOUSE,**| ||**CHAVARA SOUTH P.O, KOLLAM, KERALA-691 584**| |**4**|**ANIL R.**| ||**AGED 36 YEARS**| ||**S/O. C. RAVEENDRAN, THUNDIL VEEDU,**| ||**ARUVIPPPURAM P.O, NEYYATTINKARA,**| ||**THIRUVANANTHAPURAM, KERALA-695 126**| ||**BY ADVS.**| ||**SRI.DIPU.R**| ||**SMT. DEVI KRIPA R.**| ||**SMT.DHANYA BABU**| ||**SMT.P.A.PRIYA**| ||**SRI.K.S.BAIJU**| ||**SRI.SANAL P.RAJ**| **OP(KAT).No. 84 of 2019 2** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF FISHERIES AND PORT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001** - **2 THE DIRECTOR OF PORT, OFFICE OF THE DIRECTOR OF PORT (PORT DIRECTORATE), VALIYATHURA, VALLAKKADAVU P.O, THIRUVANANTHAPURAM695 008** - **3 THE DISTRICT OFFICER PORT OFFICE, ASARAMAM, KOLLAM-691 002** - **4 KERALA PUBLIC SERVICE COMMISSION (KPSC) REPRESENTED BY ITS SECRETARY, PATTOM PALACE P.O, THIRUVANANTHAPURAM-695 004** - **5 THE DISTRICT OFFICER KERALA PUBLIC SERVICE COMMISSION (KPSC), DISTRICT OFFICE, AANDAMUKKOM, KOLLAM-691 001** - **6 VINOD P.K. S/O. KOCHUVAVA, AGED 42 YEARS, PANDYAN PARAMBIL THOTTAPPALLY P.O, ALAPPUZHA, KERALA-688 563** - **7 THOMAS A S/O. ANTONY, AGED 31 YEARS, LOORTHUKIZHAKKA, ERAKKUM, MALIBHAGAM, CHAVARA SOUTH P.O, KOLLAM, KERALA-691 584** G.P.SRI.ANTONY MUKKATH SRI.P.C.SASIDHARAN, S.C FOR P.S.C. **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 25.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OP(KAT).No. 84 of 2019 3** ## **JUDGMENT** ## **Ravikumar, J.** This Original Petition is filed by the petitioners against the order dated 27.2.2018 passed by the Kerala Administrative Tribunal in O.A.(EKM) No.929 of 2017. The applicants 2 to 5 therein are the petitioners. They along with another moved the aforesaid Original Application seeking the following reliefs:- 1) This Hon'ble Tribunal may be pleased to direct the respondents 1 to 3 to report all the existing vacancies of “Seaman” in Kollam District as on 27.5.2017, to the respondents 4 and 5 within one week. Seaman in Kollam District, as shown in Annexures A8 and A9 documents only from the rank holders of Annexure A4 list. 3.This Hon'ble Tribunal may be further pleased to declare that, the existing 30 vacancies of Seaman in Kollam District as on 25.3.2017 (the date of Annexure-A9 communication) are only liable to be filled from appointing candidates from Annexure-A4 list. 4. This Hon'ble Tribunal may be pleased to direct the 4[th] and 5[th] respondents to issue advise orders to the rank holders in Annexure-A4 within one week of reporting the vacancies of Seaman by the respondents 1 to 3. 5. This Hon'ble Tribunal may be ## **OP(KAT).No. 84 of 2019 4** further pleased to pass any other just and equitable order in favour of the applicants, under the given facts and circumstances of the case as deemed fit and proper. 2. Evidently, the petitioners were rank holders in a rank list published by the PSC with effect from 27.8.2014 for appointment to the post of “Seaman” in the Port Department in Kollam District. The grievance of the petitioners was that though 22 candidates were advised from the said list, no further advices were effected from the said list despite the existence of 30 more vacancies. On behalf of the second respondent, a reply statement was filed before the Tribunal. Paragraph 6 therein carried the following contentions:- Therefore it is submitted that all the required vacancies of Seaman in the Kollam District had already been reported to the KPSC. At present this Department is not in a position to appoint more Seaman at this time, since it leads financial loss to Government and also it is against the Government direction. There are 49 sanctioned posts of Seaman in Kollam District. Currently 49 Seaman are not required and they will be required as and when new floating crafts are purchased as per the need of the department. The posts of Seamen are required for the operation and maintenance of floating crafts. Now the service of Seaman in the port is utilized for other works such as KIV Rule implementation and security duty of other Post Offices, since only one tug is now **OP(KAT).No. 84 of 2019 5** available at Kollam Port. Hence the contentions raised by the applicants are prima face devoid of merits and hence it is liable to be dismissed. 3. Respondents 4 and 5 filed a reply statement to the effect that as against 24 vacancies reported, 22 candidates were advised from the list and two vacancies were kept apart for NCA notification. Evidently, the Tribunal considered the stand reflected in the reply affidavit filed on behalf of the second respondent and ultimately held that when the specific case of the second respondent is absence of requirement of further hands in the post of Seaman and reasons therefor was specifically made clear, the employer could not be compelled to effect further appointments from the list. The Tribunal arrived at the said conclusion relying on a judgment of the Hon'ble Apex Court in **State of Orissa and another v Raj kishore Nanda and others (2010)6 SCC 777** . The Tribunal held that in the light of the decision in _**Raj kishore Nanda**_ 's case no direction could be issued to respondents 1 and 2 to fill up further vacancies from Annexure-A4 rank list. The view taken by the Tribunal is also fortified by the earlier decision of the Apex Court in **T.N Administrative Officers v Union of India reported in (2000)5 SCC 728** . It was held therein thus:- ## **OP(KAT).No. 84 of 2019 6** “It is a well-settled principle in service jurisprudence that even when there is a vacancy, the State is not bound to fill up such vacancy nor is there any corresponding right vested in an eligible employee to demand that such post be filled up. This is because the decision to fill up a vacancy or not vests with the employer who for good reasons, be it administrative, economical or policy, can decide not to fill up such post(s). (See **State of Haryana v Subash Chander Marwaha (1974)3 SCC 220 : 1973 SCC (L&S) 488)** ” In the decision in **Vinodan T. and others v. University of Calicut and others (2002)4 SCC 726** Apex Court restated its earlier view. It is held therein thus:- “The principle that persons merely selected for a post do not thereby acquire a right to be appointed to such post is well established by judicial precedent. Even if vacancies exist, it is open to the authority concerned to decide how many appointments should be made.” 4. We have already taken note of paragraph 6 in the reply statement filed on behalf of the second respondent. The said statement clearly carries the reason as to why such a conscious decision not to fill up further vacancies was taken. That was duly taken note of by the Tribunal and in the light of the decisions of the Apex Court referred supra, we do not find any reason to hold that the Tribunal had erred in dismissing the Original Application in such circumstances. **OP(KAT).No. 84 of 2019 7** In short, this Original Petition is devoid of merit and accordingly, it is dismissed. Sd/- **C.T.RAVIKUMAR, JUDGE** Sd/- **V.G.ARUN, JUDGE** cms **OP(KAT).No. 84 of 2019 8** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE ORDER IN O.A.(EKM) NO. 929/2017 DATED 27.2.2018 OF KERALA ADMINISTRATIVE TRIBUNAL (CAMP SITTING ERNAKULAM).** **EXHIBIT P2** **TRUE COPY OF THE O.A. (EKM)NO. 929/2017 ALONG WITH THE ANNEXURES.** **EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 2ND RESPONDENT IN O.A. (EKM) NO. 929/2017** **EXHIBIT P4 TRUE COPY OF THE REJOINDER FILED BY THE PETITIONERS IN O.A. (EKM) NO. 929/2017 AGAINST EXT. P3.** **EXHIBIT P5 TRUE COPY OF THE REPLY STATEMENT OF 4TH AND 5TH RESPONDENTS IN O.A. (EKM) NO. 929/2017** **EXHIBIT P6 TRUE COPY OF THE INTERIM ORDER IN OA. (EMKM) NO. 929/2017 DATED 16.8.2017** **EXHIBIT P7 TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN SPECIAL LEAVE TO APPEAL NO. 33427/2018 DATED 2.1.2019** RESPONDENTS EXTS NIL /TRUE COPY/ P.S.TO JUDGE cms