Central Administrative Tribunal - Ernakulam
Mubeena A.C Aged 30 Years vs The Administrator on 17 August, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
ORIGINAL APPLICATION No. 1022 of 2013
AND
O.A. No. 1056 of 2013
Wednesday this the 17th day of August, 2016
CORAM
Hon'ble Mr. Justice N.K.Balakrishnan, Judicial Member
Hon'ble Mrs. P. Gopinath, Administrative Member
OA 1022 of 2013
1 Mubeena A.C aged 30 years,
D/o Pookunhi A.P, Arackalachetta House,
Kilthan Island.
2 Sarmeena A.K. Aged 29 years
D/o Kutti Ahammed K
Avullakadiayapada House,
Kavaratti Island.
3 Rahmath Beegum M.S. Aged 26 years
D/o M.K.Kunhikoya,
Melasurambi House, Kadmath Island.
4 Thahira T.T. Aged 31 years
D/o Nallakoya B, Thaithottam House
Kilthan Island.
5 Amanulla M.P. Aged 34 years
S/o Nallakoya K.K. Maidanapura House
Amini Island.
6 Mohammed Kasim P.S. Aged 32 years
S/o Hameed K.C.T. Puthiyasurambikal House
Androth Island.
... Applicants
(By Advocate Mr. K. B. Gangesh)
Versus
1. The Administrator,
Administration of the Union Territory of
Lakshadweep, Kavaratti-682555.
2 Director (Planning and Statistics)
Directorate of Planning and Statistics,
Administration of the Union Territory of
Lakshadweep, Kavaratti
Kavaratti-682555
... Respondents
(By Advocates Mr. S. Radhakrishnan)
OA 1056 of 2013
1 P. Abdul Gafoor, aged 27 years
S/o B. Kunhikoya, residing at Panthinoda House,
Agatti Island, UT of Lakshadweep-682553.
2 P. Mubeena aged 28 years D/o Mohammed Koya
residing at Pakichibiyoda House, Agatti Island,
U.T. Of Lakshadweep-682553.
3 P. Azadulla, aged 32 years S/o Ummerkoya
residing at Puthiya Pattiniyoda, Agatti Island,
UT of Lakshadweep -682553.
4 P. Salahuddeen, aged 28 years, S/o Hyderkoya
residing at Pakichibiyoda House, Agatti Island,
U.T. Of Lakshadweep-682553.
5 P.P. Noorul Ansar, aged 32 years S/o Cheriyakoya
residing at Puthiya Pattiniyoda, Agatti Island,
UT of Lakshadweep -682553.
6 D.Nasarulla, aged 32years, S/o P.P.Ahmed
Resding at Darussalam, Agatti Island,
UT of Lakshadweep-682553.
7 A.Saheera Beegum, aged 29 years
D/o C. Mohammed, residing at Arakkalar
Kavaratti Island, UT of Lakshadweep-682555.
8 M.P. Ramsheed Khan, aged 29 years
S/o M.K.Koya, residing at Mariyappada House
Kalpeni Island, UT of Lakshadweep-682557
9 K.K.Rasiya Beegum, aged 34 years
D/o late M.K.Attakoya, residing at Kunhanakkal House,
Kalpeni Island, UT of Lakshadweep-682557.
10. P.Beegum Shebna, aged 27 years,
D/o KPV Sayed Koya, residing at Ponnelam House
Kalpeni Island, UT of Lakshadweep-682557.
. . . Applicants
(By Advocate Mr. Shafik M Abdulkhadir)
Vs.
1 Union of India, represented by the
Administrator,
Union Territory of Lakshadweep,
Kavaratti -682555.
2 The Collector cum Development Commissioner
& Secretary, Planning and Statistics,
Union Territory of Lakshadweep
Kavaratti-682555.
3 The Director of Planning and Statistics,
Union Territory of Lakshadweep,
Kavartti-682555.
. . . Respondents
(By Advocate Mr. S. Radhakrishnan )
The above two applications having been finally heard on 11.08.2016, the
Tribunal on 17..08.2016 delivered the following:
ORDER
Per: Justice N.K. Balakrishnan, Judicial Member The six applicants in OA 1022/2013 seek for a direction to be given to the respondents to effect appointments to 27 posts of Statistical Assistants available under the Union Territory of Lakshadweep from Annexure A1 merit list. They also seek a direction to keep Annexure A1 merit list to be alive till all the posts of Statistical Assistant lying vacant under Union Territory of Lakshadweep are filled up. The ten applicants in OA 1056/2013 also contend that they are entitled to be appointed against the 'existing vacancies' and the vacancies created during the validity of Annexure A3 list of Statistical Assistant. They seek a further direction to appoint them in the order of merit against the vacancies available and anticipated and newly created vacancies during the validity of Annexure A3 list. Annexure A1 list in OA 1022/2013 is shown as Annexure A3 in OA 1056/2013.
2. The applicants in both these cases contend that they were included in Annexure A1 merit list (shown in 1022/2013). Annexure A2 is the notification issued by the respondents inviting applications for the post of Statistical Assistant on 28.11.2011. According to the applicants there were 27 posts of Statistical Assistants and those posts are lying unfilled. The time limit of one year prescribed in Annexure A2 notification is illegal and unsustainable, the applicants contend. Annexure A1 list was to expire on 27.10.2013 i.e one year after the publication of the result/list. Thus according to the applicants that Annexure A1 list has to be kept alive till all the selected candidates are appointed as Statistical Assistants. According to them sufficient number of posts are lying vacant, so as to give appointment to the applicants.
3. This claim is resisted by the respondents contending that the respondents appointed Statistical Assistants filling up of vacancies in accordance with the rank list. After filling up the seven vacancies, no post became vacant nor was any new post created under the department. The list was published pursuant to Annexure A2 notification and after completing the selection process. Only those posts which arose during the period of one year can be filled up from among the selected candidates according to their rank. There were only four existing candidates at the time of Annexure A2. The department considered another 3 candidates from the Waiting List for the vacancies which arose after Annexure A2 and during the validity of the select list. No vacancy arose thereafter. Hence the respondents contend that the applicants are not entitled to get the relief as sought for.
4. We have heard the learned counsel appearing for both sides and have also gone through the pleadings and record.
5. Annexure A2 in OA 1022/2013 is the employment notice dated 28.1.2011 inviting applications to fill up four clear vacancies to the post of Statistical Assistant (Group C Non-Ministerial) by direct recruitment. It was stated in Annexure A2 that there are 'chances for having few more vacancies shortly'. It is also stated that the selection list approved by the competent authority will be valid for a period of one year from the date of notifying the vacancies (i.e, the date of issue of this circular) for any vacancies arises during this period. The words 'the date of notifying the vacancy' was subsequently corrected and it was later clarified as per notification dated 16.3.2012 making it clear that the selection list approved by the competent authority will be valid for a period of one year from the date of publication of the result (vide Annexure A2 in OA 1056/2013). There is no dispute regarding this fact. It is also not in dispute that from out of Annexure A1 selection list of 27 persons, seven persons were appointed.
6. It is vehemently argued by the learned counsel for the applicants that there were only four clear vacancies as on the date of notification and if the respondents could appoint 7 persons, there is no reason why other persons could not be appointed. This contention advanced by the applicants is too strange, the respondents contend. As stated earlier in Annexure A2 employment notification itself it was stated that there were only four clear vacancies then available and that a few vacancies were likely to arise shortly. It was specifically stated in the reply statement that after the selection process the committee prepared and notified Annexure A1 merit list of qualified candidates from among the 37 candidates included in the check list. The final merit list consisted of 27 candidates was published. It was further stated that out of those 27 candidates first seven candidates have been appointed as Statistical Assistants as and when the vacancies arose. Even going by the contentions raised by the applicants, it can be seen that there were no notified vacancies as on the date of Annexure A2 employment notification or within one year from the date of publication of the result.
7. The main contention urged by the applicants is that recommendations were made for creation of so many posts in the Islands and so there is no justification for not creating or filling up those posts from among the select list (Annexure A1 in OA 1022/2013). These are strange contentions that can be advanced, learned counsel for respondents contend. It was also argued on behalf of the applicants that in the meeting a decision was taken for creation of new posts of Statistical Assistants for which the file notings have been referred to by the learned counsel for the applicants. In the noting certain recommendations were made but no order pursuant to the suggestion was issued creating any such posts. Without creating the posts the question of inviting applications for filing up of those posts does not arise. Even if it is assumed for the worst position that pursuant to the suggestion so made, the posts were created, that would not inure to the benefit of the applicants, in view of the fact that in respect of those posts created subsequent to the notification, fresh applications have to be invited, for which fresh employment notice has to be issued for filling up of those posts. The settled position of law is that for vacancies which arose subsequently fresh notification has to be issued and selection process should be conducted afresh as held by the Hon'ble Supreme Court in Arup Das Vs. State of Assam b� (2012) 5 SCC 559. It was held:
'17. It is well established that an authority cannot make any selection/appointment beyond the number of posts advertised, even if there were large number of posts available than those advertised. The principle behind the said decision is that if that as allowed to be done, such action would be entirely arbitrary and violative of Article 15 and 16 of the Constitution of India since other candidates who had chosen not to apply for the vacant posts which were being sought to be filled could have also applied if they had known that other vacancies would also be under consideration for being filled up.' It is not the function of the Tribunals to direct the respondents to create posts so as to enable the applicants to get appointment. First of all no order has been issued by the department concerned for creating posts. Without creating posts no claim can be made by the applicants.
8. The learned counsel for the respondents would submit that file noting are not records nor are the 'file noting'' admissible in evidence as held by the apex court in State of Uttaranchal and another Vs. Sunil Kumar Vaish and others b� (2011) 8 SCC 670. Following the earlier decision on the point the Hon'ble Supreme Court has held in the aforesaid decision:
'24. A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by he particular individual. By no stretch of imagination, can such noting be treated as a decision of the government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government, unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review. (See State of Punjab V. Sodhi Sukhdev Sigh -AIR 1961 SC 493, Bachhittar Singh Vs. State of Punjab b� AIR 1963 SC 395, State of Bihar Vs. Kripalu Shankar b� (1987) 3 SCC 34, Rajasthan Housing Board Vs. Shri Kishan b� (1993) 2 SCC 84, Sethi Auto Service Station Vs. DA - (2009) 1 SCC 180 and Shanti Sports Club Vs. Union of India b� (2009) 15 SCC 705.)'
9. It is argued by the learned counsel for applicants that in the Islands there are no employment opportunities and that the only aspiration of the unemployed youth is to get employment in the service of the Lakshadweep Administration and so posts should be created so as to accommodate all those persons. We find absolutely no merit in that contention as well. Posts can be created only when there is a necessity and that too, decision has to be taken by the government/department concerned bearing in mind the financial constraints and implications as well. It is not necessary to delve deep into those aspects as admittedly in these cases no such vacancy arose within the validity period of Annexure A1 selection list. The total number of vacancies including the three which arose subsequently were seven. All those seven vacancies were filled up. No other post was created nor did any other vacancy arise during one year, the validity period of the selection list.
10. Therefore, the claim made by the applicants in both these O.As must fall to the ground. Hence both these O.As are dismissed. No order as to costs.
(Mrs. P. Gopinath) (N.K. Balakrishnan) Administrative Member Judicial Member kspps