Omana Amma and Ambili Mahadevan v Union of India and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 7TH DAY OF APRIL 2017/17TH CHAITHRA, 1939 ## WP(C).No. 34781 of 2009 (S) ---------------------------AGAINST THE ORDER IN OA.448/2009 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH PETITIONER(S): ----------------- 1. SMT.OMANA AMMA, W/O.LATE SHRI.MAHADEVAN PILLAI, VENATTU, PERINGILIPURAM P.O. CHENGANNUR, PIN-689624. 2. AMBILI MAHADEVAN, D/O.SRI.MAHADEVAN PILLAI, - VENATT, PERINGILIPURAM P.O. CHENGANNUR, PIN-689624. BY ADVS.SRI.B.SAJEEV KUMAR SRI.M.K.THANKAPPAN RESPONDENT(S): ---------------------------- 1. UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF DEFENCE (NAVY) (DCP) NEW DELHI-110011. 2. THE CHIEF OF THE NAVAL STAFF NAVAL HEADQUARTERS, NEW DELHI-110011. 3. FLAG OFFICER COMMANDING -IN-CHIEF, HEAD QUARTERS, SOUTHERN NAVAL COMMAND, KOCHI - 682004. R1-R3 BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL R1 TO 3 BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA R1-R3 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-04-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).34781/2009 ## APPENDIX ## PETITIONERS' EXHIBITS: - P1:TRUE COPY OF O.A.448/2009 FILED BY THE PETITIONERS BEFORE THE C.A.T. ERNAKULAM BENCH. - P2:TRUE COPY OF THE VERDICT PASSED BY THE C.A.T ERNAKULAM BENCH IN O.A.448/2009. - P3:TRUE COPY OF THE STATEMENT FILED BY THE RESPONDENTS IN O.A.448/2009. RESPONDENTS' EXHIBITS:NIL ## //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR** ## **& ANIL K. NARENDRAN, JJ.** **========================== W.P.(C). No.34781 OF 2009 ==========================** Dated this the 7[th] day of April, 2017 ## **JUDGMENT** ## _**Ravikumar, J.**_ The petitioners were the applicants in O.A.No.448 of 2009 on the files of the Central Administrative Tribunal, Ernakulam Bench. This writ petition has been filed challenging the order dated 30.7.2009 passed thereon by the Tribunal, dismissing the original application. The facts, in succinct, that led to the filing of the original application that culminated in the impugned order, are as follows:- One Sri.Mahadevan Pillai who was the husband of the first applicant/first petitioner died in harness on 30.12.2001 while working as Store Keeper in Naval Aircraft Yard, Kochi. On 14.2.2002, the second applicant/the second petitioner who is the **W.P.(C).34781/2009** 2 daughter of the deceased was then unmarried. She filed an application for compassionate employment. According to the petitioners, the first petitioner was then over aged and was a chronic asthma patient and it was in such circumstances that an application was moved for compassionate employment to the second petitioner. As per Annexure- A12, the first petitioner was intimated regarding the rejection of the application for compassionate appointment to the second petitioner. It was in such circumstances that the above original application was moved with the following prayers:- “a) call for the entire records leading to Annexure A12 including the files pertaining to the selection process and quash the same. b) To direct the 3[rd] respondent to furnish the details of vacancies, if any from other Ministries/Department/Offices of the Government of India as per Clause 7(f) of Annexure A1 and to take steps to consider the case of the 2[nd] applicant for the same. c) Declare that the 2[nd] applicant is entitled to get appointment to any suitable post in group 'C' or group 'D' under the Compassionate employment scheme, considering Annexure A3 report in accordance with the scheme for **W.P.(C).34781/2009** 3 compassionate appointment and direct the respondents to consider the 2[nd] applicant for the same.” The Tribunal, after considering the rival contentions and perusing the materials on record, dismissed the O.A and hence this writ petition. 2. Heard the learned counsel for the petitioners as also the learned Assistant Solicitor General. 3. It is obvious from the impugned order itself that the petitioners had earlier approached the Tribunal by filing O.A.No.59 of 2007 on being aggrieved by the delay in the matter of consideration of the application submitted by the second petitioner for compassionate employment pursuant to death of the above named employee, in harness. The said O.A was disposed of by the Tribunal as per Annexure-A11 order in Ext.P1. Annexure-A11, in so far as it is relevant, reads thus:- **W.P.(C).34781/2009** 4 “8.Again, attempt may be made to forward the case of the applicant to one or two Ministries so that in case there be any vacancies under Compassionate appointment quota, the ministries may consider the same. 9.In case the respondents consider the case of the applicant under the liberal 5% vacancies and if the applicant's case comes within the parameters for compassionate appointment on the basis of the points scored, the applicant's daughter be considered for appointment against a suitable post. In the event of the case of the applicant not coming within the merit even after applying the liberal formula, the applicant be suitably informed.” 4. Evidently, what was directed by the Tribunal is only for a consideration of the application in accordance with law and that fact is very explicit from Annexure-A11 order itself. Annexure-A12 order which was impugned in O.A.No.448 of 2009 is the outcome of such consideration. It was contended before the Tribunal that though the first petitioner applied for compassionate appointment for the second petitioner in the year 2002, the rank and status based on such consideration of the application was informed to her only in the year **W.P.(C).34781/2009** 5 2005. It is contended that the very intention of the legislation under the compassionate employment scheme is to enable the family to tide over the financial problem and there is no justification for the inordinate delay in the matter of consideration of the application. Essentially, the contention is that owing to the death of Sri.Mahadevan Pillai, the sole bread winner of the family, the family was put in financial destitution. In short, the contention is that in such circumstances, in terms of the compassionate employment scheme, the second petitioner is entitled to get employment assistance and therefore, there was no reason or justification for delaying or declining compassionate appointment. 5. The respondents resisted the claims and contentions put forth by the petitioners. It was contended that the claim of the second petitioner for compassionate appointment was considered thrice by the authorities. Thereafter, as a special case, claim of the second petitioner was again considered for the fourth time along with several **W.P.(C).34781/2009** 6 others. The second petitioner could score only 48 weightage points and her merit position was 58 based on the assessment made as per the norms prescribed for the said purpose. Compassionate appointments are restricted to 5% of the vacancies available in the lower rung where direct recruitment is the method of appointment and in such circumstances, taking note of the number of applicants, only deserving candidates could have been extended employment assistance. In fact, it is for that precise purpose, norms were formulated and weightage points were assessed based on such norms. Ext.A9 would reveal that 57 candidates got higher weightage points than the second petitioner and evidently, all those could not be given compassionate appointment in view of paucity of vacancies inasmuch as only 5% of the vacancies mentioned hereinbefore are earmarked for compassionate appointment. In short, the contention is that taking note of the repeated claims of the petitioners even after rejecting their claim on three occasions, a further consideration was made and even then more deserving candidates were available. That apart, it is to be **W.P.(C).34781/2009** 7 noted that even persons who secure more weightage points than the second petitioner could not be given compassionate appointments. It is in such circumstances that the respondents were constrained to reject the application for compassionate appointment for the second petitioner under Annexure-A12. It is evident that the petitioners are relying on the order in O.A.No.59 of 2007 to contend that in the light of the said order, the rejection of the application of the second petitioner could not be sustained. We have already taken note of the nature and texture of the decision in Annexure-A11 order. A perusal of Ext.P2 order would reveal that the Tribunal had bestowed attention to pass earlier order and categorically arrived at the conclusion that what was observed in paragraph 8 of Annexure- A11 is only a suggestion and discretion was given to the respondents to consider the application in accordance with law, as is obvious from paragraph 9 therein. The petitioner had not challenged Annexure-A11 order which carried only a direction for **W.P.(C).34781/2009** 8 consideration of the claim of the second petitioner. There cannot be any dispute with respect to the position that any direction to consider an application for appointment under the compassionate employment scheme should leave the authorities the discretion which is to be exercised in accordance with law. The reasons aforementioned would reveal that the said discretion was exercised by them lawfully and the merits of the claim of the second petitioner vis-a-vis the other applicants were considered. It is evident that an assessment of the merit of the claim of the second petitioner was made and she could score only 48 weightage points and her merit position was only 58. In fact, 57 candidates got more weightage marks than second petitioner. The precise case of the respondents is that even all those 57 persons could not be given compassionate appointment owing to the paucity of the vacancies available for compassionate appointment. When that be the position, the petitioners could not be heard to contend that ignoring the better rights of other candidates, the second petitioner should be preferred in the matter of compassionate **W.P.(C).34781/2009** 9 appointment. In the contextual situation, it is relevant to refer to the Full Bench decision of this Court in **B.S.N.L v. Rajesh** [ **2015 (2) KLT 478 (F.B)]** . The Full Bench held that compassionate appointment could be made only as per the scheme or Rules or Regulations and dehoring the scheme no discretion would be available for an appointing authority. Further, it was held that compassionate appointment could not be granted as a matter of course, by way of largesse, irrespective of the financial condition of the deceased/incapacitated employees family at the time of his death or incapacity. The reasons mentioned hereinbefore would reveal that the question whether the second petitioner could be granted compassionate appointment was considered on four occasions by the respondents. However, upon finding that more deserving candidates are available, the second petitioner was not offered compassionate appointment. We do not find any reason to hold that the Tribunal went wrong in accepting the said contentions of the respondents in rejecting the claim for compassionate appointment raised by the first **W.P.(C).34781/2009** 10 petitioner on behalf of the second petitioner and upholding the orders of the authorities. In short, the petitioners have failed to bring out any ground warranting an interference with the impugned order of the Tribunal in exercise of the juridical review available to this Court under Article 227 of the Constitution of India. In such circumstances, this writ petition is liable to fail and accordingly, it is dismissed. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **Sd/-** **ANIL K. NARENDRAN** **(JUDGE)** **spc/** **W.P.(C).34781/2009** 11 **C.T. RAVIKUMAR, J.** **W.P.(C).34781/2009** 12 **JUDGMENT September, 2010**