N BABU Vs. FLAG OFFICER COMMANDING IN CHIEF

JUDGEMENT

(1.) THE applicant, an orthopaedically handicapped unemployed youth, was sponsored by the Vocational Rehabilitation Centre, Trivandrum (A-1) for selection to the post of unskilled Labourer under the Headquarters, Southern Naval Command, Cochin against 3% quota reserved for the physically handicapped (A-2). THE applicant thereafter sent aduly filled and verified attestation form (A-3). THE applicant who was given to understand that he was selected, did not get appointment though 2 similarly selected candidates were appointed. He claims to have made enquiries at the Southern Naval Command, Cochin, when he is said to have been informed that he would soon receive appointment orders. Repeated enquiries entailed similar promises but no appointment order was issued according to the applicant. THE applicant made a representation A-5 dated 18.6.99 to the 1st respondent. THEre was no response to that either. THE applicant is aggrieved by the respondents' failure to issue appointment order to him as unskilled labourer against the quota for orthopaedically handicapped. THE applicant alleges wilful inaction due to extraneous consideration actuated by malafides. He complains of violation of Articles, 14, 16 and 21 of the Constitution. It would appear that this O.A. is filed after the applicant withdrew a Writ Petition filed earlier before the High Court with liberty to approach this Tribunal. THE reliefs sought by the applicant include:

(2.) The 1st respondent has filed a reply statement resisting the O.A. According to the 1st respondent, although the applicant's name was shortlisted and the preliminary formalities were initiated, the applicant did not acquire any vested right for appointment merely because of such process. Unless there was a real vacancy against the quota for physically handicapped, it was not possible to appoint him. The applicant's name was kept in the live register vide R1(a). A number of decisions of the Supreme Court particularly those reported in Ashwani Kumar and Ors. v. State of Bihar and Ors., AIR 1997 SC 1628=1997(1) SLJ 178 (SC), N. Mohanan v. State of Kerala and Ors., AIR 1997 SC 1896=1997(2) SLJ 76 (SC), K Jayamohan v. State of Kerala and Anr., AIR 1997 SC 2619=1998(1) SLJ 19 (SC) and Government of Orissa v. Haraprasad Das and Ors., AIR 1998 SC 375 have been cited by the respondents in support of the proposition that inclusion in the select list by itself would not confer any right on the candidate to appointment inspite of completion of pre-appointment formalities unless there was sanctioned post backed up by proper financial budget. It is submitted by the respondents that the waiting list maintained by the Department was valid only for one year as per R1(b). Since the list lapsed on 5.2.98 (see R1(c), the applicant could not seek any appointment after expiry of the list. The applicant has filed rejoinder seeking to rebut the contentions of the respondents. Drawing our attention to A-6 communication issued in March 1997, the applicant would submit that he was selected for the post of unskilled labourer against an existing vacancy in the quota earmarked for the physically handicapped. The applicant would contend that there was vacancy of unskilled labourer in the physically handicapped quota before February 1998 and that being the position, the respondents could not plead that he was not entitled to get appointment. In the additional reply statement, the respondents reiterated their earlier stand that being short listed for consideration against anticipated vacancies, the applicant did not acquire any vested right in view of the fact that no such vacancy actually arose. The respondents also would urge that as per aletter issued by the Naval Headquarters on 27.2.98 R1(E) there was a restriction/ban with regard to recruitment except through dockyard apprenticeship filled up only with prior approval of the Naval Headquarters as a matter of Government policy. The applicant was informed of the expiry of the select list. The vocational Rehabilitation centre was also advised to keep the name of the applicant in their live register as per R1 (A) communication. Thus, the respondents have taken all steps to inform the applicant of the actual position. The selection was not for immediate appointment against a crystalised vacancy. The idea was to consider the applicant for anticipated vacancy, respondents would plead. The applicant has questioned the veracity of the statements made by the respondents in their additional reply statement. It has been stated that the claim that there was a ban or restriction with regard to recruitment was not supported by any documentary evidence. Our attention was drawn to the advertisement dated 3.6.99 inviting application for selecting 35 unskilled labourers in the Southern Naval Command. The respondents' claim that the intimations were sent to the applicant and the Vocational Training Centre is also hotly disputed. According to the applicant, the Vocational rehabilitation Centre never received any communication and the applicant too had not been served with any letter as claimed by the respondents. Thus, the claim that the respondents had made arrangements for keeping the applicant's name in the live register was not borne out by any tangible record or evidence. The applicant has further referred to the respondents* statement in paragraph 6 of their additional reply statement and has pointed out that on the respondents' own admission, vacancies existed in the post of unskilled labourers but the plea that the same could be filled up only with prior approval of the Naval Headquarters was not supported by any evidence. The respondents had reported 3 vacancies to the Vocational Rehabilitation Centre and requested them to sponsor candidates under different categories. It would thus be evident that vacancies of unskilled labourer existed, and that the allegation to the contrary now being putforward is not correct.

(3.) LEARNED Counsel for the applicant would state that the names of the handicapped persons including the applicant were sponsored by the Vocational Rehabilitation Centre, Trivandrum on the advice of the respondents with regard to specific number, of vacancies. The allegation that the applicant was to be considered against anticipated vacancy is not correct, according to the learned Counsel. The theory of ban on recruitment allegedly imposed by the Naval Headquarters was factually incorrect. Under similar circumstances, this Tribunal has considered the contention with regard to the alleged ban on recruitment and engagement without the approval of the Naval Headquarters in O. A.Nos.450/99 and 768/99 wherein the respondents' failure to appoint certain candidates who applied for the post of unskilled labourers was questioned, the learned Counsel would point out. According to Counsel, this Tribunal in those 2 O.As. has rejected the respondents stand that the applicants in those 2 cases could not be considered for appointment on account of the ban. Similarly, the respondents' argument that in view of the select list having lapsed, the case of the applicant could not be considered beyond the date on which the validity of the list expired. LEARNED Counsel would invite our attention to the very same order of the Tribunal cited above and state that the letter containing the validity period of the select panel would not support their case as it relates to the waiting list for recruitment through Employment Exchange. LEARNED Counsel would further contend that the respondents' argument that vacancy was not in existence and that therefore, the applicant could not be accommodated also was factually incorrect as there is no evidence regarding the claim that the recruitment process was initiated and completed just for filling anticipated vacancies, Counsel would urge. He would, therefore, vehemently plead that the applicant had a case to be considered for appointment against the vacancy for the specific category of physically handicapped and that the findings of this Tribunal in O.A. 450/99 and O.A. 768/99 were substantially applicable to the facts of this case. Mr. C. Rajendran, SCGSC would reiterate the pleadings on record and state that the applicant could not be considered since there was no identified vacancy against which he could be accommodated. The applicant was duly informed of the position and the Vocational Rehabilitation Centre was also advised to keep the applicant on their live register. Since mere inclusion in the select list would not confer any vested right for appointment, as is well settled by a large number of decisions of the Apex Court, the applicant could not agitate the matter particularly in view of the fact that the list got expired on completion of one year since it was drawn.