IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 23RD JUNE 2008 / 2ND ASHADHA 1930 WP(C).No. 17279 of 2008(S) -------------------------- OA.757/2004 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER: ------------ 1. THE COMMISSIONER OF CENTRAL EXCISE & CUSTOMS, COCHIN COMMISSIONERATE, CENTRAL REVENUE BUILDINGS, I.S.PRESS ROAD, COCHIN - 682 018. 2. CHAIRMAN, CENTRAL BOARD OF EXCISE AND CUSTOMS, NORTH BLOCK, NEW DELHI. 3. UNION OF INDIA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, NORTH BLOCK, NEW DELHI - 110 001. BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR RESPONDENT: ------------- J.JOSEPH, KARIYOTTU MANOOTTIL HOUSE, VENCHEMPU, PUNALUR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.C.HARI RANI JJ. ----------------------------------------------------- W.P.(C)No.17279 OF 2008 ----------------------------------------------------- DATED THIS THE 23rd DAY OF JUNE, 2008 J U D G M E N T Balakrishnan Nair, J. The respondents in O.A.No.757/04 are the writ petitioners. The applicant therein is the respondent. The applicant's father was an employee under the writ petitioners. He claimed employment under the dying in harness scheme. His claim was rejected by Annexure A6 order dated 22.9.2004, produced along with Exhibit P1 Original Application. The reason was that the applicant's claim could be considered only within three years of date of death. In his case, his father died on 7.1.1998. So, he cannot be appointed after 6.1.2001 The said order was issued relying on Annexure A7 circular issued by the Union of India. Challenging Annexures A6 and A7, the Original Application was filed. The CAT initially dismissed the said O.A. But, this Court by judgment in W.P.(C)No.10432/05 dated 21.6.2007 remanded the matter for fresh consideration in accordance with law. This Court directed the CAT to consider the claim of the applicant that there W.P.(C)No.17279/08 -2- were several vacancies during the three year period after his father's death. He should have been appointed in one of them. He also had a claim that a few persons were appointed overlooking his legitimate claim. The applicant was given freedom to place all these materials before the CAT and the Tribunal was directed to pass fresh orders by this Court by the judgment in the above writ petition. Pursuant to the said direction, the present impugned order Exhibit P4 has been passed on 31.10.2007. The Tribunal called for the files and found that the applicant's claim was not considered in time or properly. The relevant portion of the order of the CAT reads as follows: “9. It is an admitted fact that the applicant was awaiting appointment since 1998. In the year 2003, the Respondents have stated that there were two vacancies, but appointments made were 6 and whereas the list of persons appointed at Annexure-A/11 shows that only 4 persons were appointed out of which two belonged to Group-D posts, one as Stenographer and one Sanal Kumar has been appointed as Canteen Clerk. There is no appointment of Graduates in that year. In the Minutes of the meeting held on 18.2.2004, the Committee prepared a list of 21 candidates for appointment W.P.(C)No.17279/08 -3- on compassionate ground and the applicant was at serial 8. Serial No.1 and 2 were fresh candidates and serial No.3 to 5 and 7 were those ranked at serial No.5 to 8 the earlier panel. Smt.Bina was inducted at serial No.6, above the applicant and the name of the candidate at serial No.7 was found in the earlier panel also. In the proceedings of the Committee, the details prepared with reference to the data collected during the verification conducted is also enclosed and it gives a definite picture how the assessment was made. The facts and figures given in columns No.7 to 9 of the data sheet included with the Minutes shows that the applicant, who was placed at serial No.8 was more deserving than those placed above him in terms of the financial position, as revealed from the family pension and other benefits granted to the family. We are not in a position to discern any reason why Smt.Bina should have been ranked at serial 6, above the applicant, making eligible for appointment before the applicant. In fact, same position existed as regards other candidates from Serial No.3 to 5 and 7 also, who were ranked above the applicant and all these candidates had become eligible after the applicant, since the W.P.(C)No.17279/08 -4- deaths in their cases occurred later after the applicant had put in his claim for appointment on compassionate ground. If any other parameters had been considered in terms of dependent members, size of the family etc. they are not discernible from the records. 10. Viewed from this angle, we are constrained to come to the conclusion that the applicant's case had not been dealt with proper care and attention taking into account the fact that he had been already evaluated in the meeting held as early as in 1998 and had been in the waiting list since 1998 onwards with no change in his financial condition. It is also not the case of the respondents that since 1998 to 2003 the financial position of the applicant had improved and/or any other member of his family secured employment etc. In fact, the respondents have only contended that the applicant could not be accommodated due to shortage of vacancies. Unfortunately, in the reckoning of the respondents, the applicant's rank has been going down every year instead of moving forward and fresh candidates are being evaluated and ranked above the applicant pushing him further downwards. W.P.(C)No.17279/08 -5- This situation cannot be ruled out altogether. Such supersession could be made only when other candidate are found more deserving because of his/her family circumstances, which is not the case here. Moreover, there is a definite dereliction on the part of the Department in not having convened the Committee from the year 1998 to 2003. If it had been done, the omission could have been noticed earlier. Therefore, the same situation as observed by the Tribunal in O.A.No.761/04 (M.Vijayan -v- Commissioner for Central Excise and Customs & ors.) that if the right thing had happened at the right time the applicant could have been considered and selected for compassionate appointment at the appropriate time, holds good in the case of this applicant also. In fact, as mentioned earlier, the applicant in O.A.No.761/04 was ranked junior to the applicant in the panel, and as such, the case of the applicant in this application is on a better footing. Based on the above findings, the following directions were issued by the Tribunal: “12. Considering the factual and legal situation of W.P.(C)No.17279/08 -6- the case as discussed above, we direct that the vacancy which arose in 2002, which could not be filled in shall be carried forward and the applicant shall be considered for appointment to the post on compassionate ground without disturbing the appointments already made till date. The respondents shall pass appropriate orders within a period of three months from the date of receipt of a copy of this order.” 2. This writ petition is filed challenging the above order (Exhibit P4) of the CAT on the ground that there were no vacancies to accommodate the applicant within the time limit provided under law. It is also contended that compassionate appointment cannot be granted after long lapse of time. But, in this case, the CAT rightly noticed that the selection committee never met within the prescribed time limit. Therefore, we are of the view that the rejection of applicant's claim on the ground of delay was manifestly unjust. Regarding the merits of the selection, the CAT after perusing the files entered certain findings which are findings of fact. We have already quoted the relevant portion of the judgment of the CAT. Going by the said order of the CAT, we are of the view that the Tribunal has rightly W.P.(C)No.17279/08 -7- interfered with the matter and directed reconsideration of the claim of the applicant. His claim cannot be defeated on the ground of delay. The writ petitioners cannot take advantage of their own lapses. We agree with the reasons and conclusions of the Tribunal. No ground has been made out warranting interference with the impugned order under Article 226 of the Constitution of India. Accordingly, this writ petition is dismissed. K.BALAKRISHNAN NAIR,JUDGE. M.C.HARI RANI, JUDGE. dsn