Kerala High Court
Abdul Rahim K vs Union Of India on 18 September, 2015
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.
TUESDAY, THE 23RD DAY OF MAY 2017/2ND JYAISHTA, 1939
OP (CAT).No. 78 of 2017 (Z)
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AGAINST THE ORDER IN OA 647/2013 of CENTRAL ADMINISTRATIVE
TRIBUNAL,ERNAKULAM BENCH DATED 18.09.2015
PETITIONER(S):
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ABDUL RAHIM K.
S/O.MOHAMMED KOYA, KALLAKANDIYODA HOSUSE,
AGATTI ISLAND, UNION TERRITORY OF LAKSHADWEEP.
BY ADVS.SRI.M.P.KRISHNAN NAIR
SRI.JOSEPH THEKKEKURUVANAL
RESPONDENT(S):
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1. UNION OF INDIA
REP. BY THE SECRETARY, MINISTRY OF HOME AFFAIRS,
NEW DELHI 110001.
2. THE ADMINISTRATOR
UNION TERRITORY OF LAKSHADWEEP,
KAVARATTI 682 555.
3. THE COLLECTOR - CUM - DEVELOPMENT COMMISSIONER
UNION TERRITORY OF LAKSHADWEEP,
KAVARATTI - 682 555.
R1 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
R2-R3 BY ADV. SRI.MANU.S, CGC, ADMINISTRATION OF THE UNION
TERRITORY OF LAKSHADWEEP
SRI.MANU.S, CGC, ADMINISTRATION OF THE UNION
TERRITORY OF LAKSHADWEEP
THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 23-05-2017, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (CAT).No. 78 of 2017 (Z)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT.P1 TRUE COPY OF THE O.A. NO. 647/2013
EXT.P2 TRUE COPY OF THE ORDER DATED 18TH SEPTEMBER 2015 IN OA
NO. 647/2013
EXT.P3 TRUE COPY OF THE REPLY STATEMENT, DT. 30TH DECEMBER,
2013 FILED BY THE RESPONDENT
EXT.P4 TRUE COPY OF THE REJOINDER DATED 8.6.2014 TO THE REPLY
STATEMENT DATED 30.12.2013 FILED BY THE RESPONDENTS
2 AND 3
EXT.P5 TRUE COPY OF THE JUDGMENT DATED 18TH SEPTEMBER, 2014 IN
OP(CAT)NO. 758/2013-Z
EXT.P6 TRUE COPY OF THE ADVERTISEMENT DATED 15.5.2015 ISSUED BY
THE RESPONDENTS
EXT.P7 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER
ON 12/6/2015
EXT.P8 TRUE COPY OF THE INTERIM ORDER DATED 28.2.2017 OF THE
LEARNED TRIBUNAL IN OA NO. 127/17
RESPONDENT(S)' EXHIBITS : NIL
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/TRUE COPY/
P.A. TO JUDGE
P.R. RAMACHANDRA MENON & SHIRCY V., JJ
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O.P.( CAT) No. 78 of 2017
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Dated, this the 23rd day of May, 2017
JUDGMENT
Ramachandra Menon , J.
Challenge is against the interference declined by the Tribunal with regard to the claim for appointment to the post of 'Amin/Gumastha' and also with regard to the non-interference as to the claim for appointment to the post of Deputy Surveyor/Draftsman as sought for in the Original Application.
2. At the outset, it is to be noted that the order under challenge was passed way back on 18.09.2015. The petitioner has approached this Court by filing this Original Petition on 06.03.2017 i.e. more than 1 = years after passing Ext. P2 verdict. Absolutely, no tenable reason is given to entertain the challenge at this stage. Obviously, the petitioner left the issue as such and has approached this Court much belatedly as a matter of revelation. The supervisory jurisdiction being exercised with regard to the correctness of the orders passed by the Tribunal, cannot be invoked casually. This Court finds support from the verdict rendered by the Apex Court in O.P.( CAT) No. 78 of 2017 : 2 : Rabindra Nath Bose and Ors. Vs. Union of India [AIR 1970 SC 470] to the effect that relief cannot be granted in favour of the persons, as a matter of course, who were simply sleeping on arm chair. O.P. fails on this score alone.
3. With regard to the merit, the prayers raised in the Original Petition are in the following terms :
i) To call for the entire records leading to the issue of Annexure A 23 and set aside the same;
ii) To set aside the Ext. P2 order dated 18.09.2015 in OA No. 647/2013 of the Hon'ble Central Administrative Tribunal, Ernakulam Bench;
iii) To direct the respondents to appoint the petitioner to the post of Amin/Gumastha as per Annexure A23 notification in the existing vacancies or any other suitable vacancies in the Land Revenue Department;
iv) To direct the respondents to effect 3 % reservation to the post of Deputy Surveyor/Draftsman, Amin/Gumastha as per Annexure A26 notification in the Land Revenue Department and take steps to fill up the entire quota;
v) to grant such other reliefs as this Hon'ble Court may deems fit and proper in the facts and circumstances of the case ;
vi) to award the cost to the petitioner.
O.P.( CAT) No. 78 of 2017 : 3 :
4. The claim was contested by the respondents mainly contending that as per Annexure A23 employment news, applications were invited only in respect of one post of 'Amin/Gumastha' and hence it has nothing to do with the post of Draftsman/Deputy Surveyor. It is also to be noted that the Committee constituted for identification of posts identified one post under PH quota. It is stated that the selection to the said post was conducted as per the norms prescribed and a person by name Mr. M.C. Koya was appointed to the said post. The observations made by the Tribunal, as reflected from paragraphs 16, 17 and 18 of the verdict under challenge, are extracted below for convenience of reference :
"16. According to respondents only one post was reserved in "Amin/Gumastha in the Collectorate" under the handicapped quota and that vacancy was filled up by appointing Mr. M.C. Koya of Amini Island who is still occupying that post. It is further submitted that Annexure A23 Employment Notice was issued inviting applications to fill up one post of Amin/Gumastha and it was not to fill up the post of Deputy Surveyor/Draftsman. According to the applicant Amin/Gumastha also comes under the very same O.P.( CAT) No. 78 of 2017 : 4 : department and so it is for the respondents to identify the post. Since Amin/Gumastha is a post which can be identified for appointing a disabled person, the respondent cannot issue notification without serving a post for disable persons, argues the learned counsel for the applicant. But the learned counsel for the respondents would submit that since there existed only one vacancy it cannot be earmarked for the disabled person, especially in view of the fact that one post earmarked fro the disabled person has already been filled up earlier. According to the applicant the committee has identified 117 posts suitable for appointment of persons with disabilities.
17. As stated earlier, one post of Amin/Gumastha alone was earmarked for physically handicapped candidates and that was already filled up. Since Annexure A23 was issued pertaining to the post of Amin/Gumastha where no other vacancy is available to be earmarked for physically handicapped candidates, the challenge against Annexure A23 must fail. To that extent O.A. stands rejected.
18. It is submitted by the learned counsel for respondents for respondents that pursuant to the direction issued by the Hon'ble High Court in OP (CAT) No. 758/2013 one post of Deputy Surveyor/Draftsman O.P.( CAT) No. 78 of 2017 : 5 : was also earmarked to be filled up by physically handicapped persons and for that purpose a notification was issued subsequently. Three candidates including the applicant applied for the same. A check list regarding the same was also published. Therefore it can be seen that the selection for that post is in progress. The grievance of the applicant, in fact is redressed to that extent. Since the process of selection to that post earmarked for physically handicapped candidates is in progress, no further direction has to be issued in this O.A. Hence this O.A. is disposed of as above. No order as to costs."
This Court finds that there is absolutely nothing arbitrary or illegal to call for interference with regard to the finding and reasoning given by the Tribunal.
5. With regard to the post of 'Deputy Surveyor', it is to be noted that a claim was putforth, raising similar challenge by another person by name Zafeera C.N. [who was also a physically challenged person] for appointment to the post of Deputy Surveyor, before the Tribunal by filing O.A. No. 511 of 2008. The said original application was dismissed, holding that there was no merit in the contentions raised. It was also observed therein, that it is for the Committee to identify the post for reservation of O.P.( CAT) No. 78 of 2017 : 6 : physically handicapped persons; taking into consideration of the nature of duty to be performed by the incumbent. Thereafter, the said applicant approached the Tribunal again by filing O.A. No. 813 of 2010, seeking for a declaration that the notification inviting application for the post of Draftsman/Deputy surveyor should contain reservation for differently abled persons and for a direction to the respondents to appoint him to the said post, wherein also interference was declined and the O.A. was dismissed, holding that there was no merit in the I.A. Though review application was filed, it also did not turn to be fruitful, pursuant to which O.P.(CAT) No. 758 of 2015 was filed before this Court. After hearing both the sides, Ext. P5 judgment was passed virtually allowing the original petition, the operative portion of which reads as follows :
"In the result, this Original Petition will stand allowed. Ext. P3 will stand modified to the above effect and Exhibit P9 will stand set aside. Respondents 1 to 3 are directed to implement the reservation as provided in the Disabilities Act to the post notified in Annexure A1 either against an existing vacancy or against an immediately arising vacancy. They shall invite applications accordingly, complete selection process and make appointment on that basis. O.P.( CAT) No. 78 of 2017 : 7 : In any case, the process should be completed as expeditiously as possible and at any rate within six months from the date of receipt of a copy of this judgment. It is made clear that irrespective of the age limit prescribed, it would be open to the petitioner to apply in response to the notification to be issued and it he makes an application, his candidature will be considered in accordance with law."
6. Pursuant to the above verdict, it came to be obligatory for the respondents to notify the vacancy for appointment of Deputy Surveyor/Draftsman. It was accordingly, that Ext. P6 advertisement was issued on 15.05.2015. In response to the said advertisement, the petitioner herein also submitted his application by way of Ext.P7. Thereafter, it is seen that the petitioner being not satisfied with the course and events pursued by the Administration, approached the Tribunal mainly contending; that the respondent Administration was not at all justified in reducing the time for completion of examination from 120 minutes to 90 minutes; that it was not proper to have incorporated a new clause as 'for incorrect answers 1/3rd marks each was to be deducted from the total score'; and further that there was no circumstances in the Lakshdweep for conducting test in respect of physically challenged persons, which O.P.( CAT) No. 78 of 2017 : 8 : was being done only on the basis of interview. The said matter is pending before the Tribunal as O.A. No. 127 of 2017, wherein an interim order was passed to the effect that the appointment if at all any effected would be subject to the final outcome of the O.A. The grievance projected with regard to the Deputy Surveyor was also considered by the Tribunal while passing Ext.P2 order and it has been observed that selection to the said post was still on process and as such, it was not dealt with. This Court does not find any irregularity; much less any illegality with regard to the course pursued by the Tribunal, as the issue is still pending consideration. Interference is declined and the Original Petition is dismissed.
sd/-
P. R. RAMACHANDRA MENON, JUDGE sd/-
SHIRCY V.,
JUDGE
kmd /True copy/
P.A. to Judge