IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 11TH FEBRUARY 2009 / 22ND MAGHA 1930 WP(C).No. 8829 of 2005(A) --------------------------------------- PETITIONER(S): ----------------------- 1. K.K. ANANDAN, SHEEJA BHAVAN, THERIVILA, T.C.NO.18/382, THELIBHAGAM, KUNNAPUZHA P.O., THIRUMALA, THIRUVANANTHAPURAM. (FORMERLY DAFTARY, KHADI AND VILLAGE INDUSTRIES, STATE OFFICE, TRIVANDRUM). 2. DEEPA PRABHA, D/O. K.K. ANANDAN, SHEEJA BHAVAN, T.C.NO.18/382, THELIBHAGAM, KUNNAPUZHA P.O., THIRUMALA, THIRUVANANTHAPURAM. BY ADV. MR.R.S.KALKURA RESPONDENT(S): ----------------------------- 1. THE SECRETARY, KHADI AND VILLAGE INDUSTRIES, GOVERNMENT OF INDIA, NEW DELHI. 2. KHADI AND VILLAGE INDUSTRIES COMMISSION, REPRESENTED BY ITS SECRETARY, STATE OFFICE, THIRUVANANTHAPURAM. 3. DIRECTOR, ADMINISTRATIVE OFFICE OF THE COMMISSIONER FOR KHADI AND VILLAGE INDUSTRIES, IRLA ROAD, VILE PARLE (WEST), MUMBAI. 4. DIRECTOR, KHADI AND VILLAGE INDUSTRIES COMMISSION, STATE OFFICE, THIRUVANANTHAPURAM. BY ADV. MR. V.V.JOSHY, SC, KHADI BOARD R4 BY MR.P.SANTHALINGAM, SENIOR ADVOCATE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/02/2009 ALONG WITH WPC.NO.22707/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WP.NO.8829/2005 A APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DTD. 26/02/2003. EXT.P2: COPY OF THE LETTER DTD. 4/03/2003 ISSUED BY THE 2ND RESPONDENT DIRECTING THE 1ST PETITIONER TO UNDERGO MEDICAL TREATMENT. EXT.P3: COPY OF THE MEDIAL CERTIFICATE DTD. 28/03/2003 ALONG WITH A COVERING LETTER. EXT.P4: COPY OF THE LETTER DTD. 7/05/2003 ISSUED BY THE 2ND RESPONDENT. EXT.P5: COPY OF THE LETTER DTD. 24/03/2004 REQUESTING THE PETITIONER TO SUBMIT VARIOUS REQUIREMENTS FOR SUCH COMPASSIONATE APPOINTMENT. EXT.P6: COPY OF THE COMMUNITY CERTIFICATE. EXT.P7: COPY OF THE CERTIFICATE ISSUED BY VILLAGE OFFICER, THIRUMALA DTD. 27/01/2003. EXT.P8: COPY OF THE CERTIFICATES ISSUED BY VILLAGE OFFICER, THIRUMALA DTD. 01/04/2004. EXT.P9: COPY OF THE LETTER OF CONSENT GIVEN BY LALITHA THE MOTHER OF 2ND PETITIONER. EXT.P10: COPY OF THE LETTER OF UNDERTAKING GIVEN BY 2ND PETITIONER. EXT.P11: COPY OF THE APPLICATION SUBMITTED BY DAUGHTER OF THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P12: COPY OF THE LETTER DTD. 29/03/2004 ISSUED BY THE 2ND RESPONDENT. EXT.P13: COPY OF THE CIRCULAR NO.ADM-II/465/2001-02 (3) DTD. 13/03/2002. EXT.P14: COPY OF THE CIRCULAR NO.ADM-II/465/2002-2003 (3) DTD. 27/01/2003. Kss ..2/- ....2.... WPC.NO.8829/2005 A EXT.P15: COPY OF THE STANDING ORDER NO.1367 DTD. NIL. EXT.P16: COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER DTD. 14/10/2004. EXT.P17: COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER DTD. 19/01/2005. EXT.P18: COPY OF THE COMMUNICATION DTD. 14/02/2005. EXT.P19: COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT DTD. 01/09/08. RESPONDENT'S EXHIBITS: EXT.R4(A): COPY OF OFFICE MEMORANDUM DTD. 9/10/1998 NO.14014/6/ 94-ESTT (D) ISSUED BY THE DIRECTOR (ESTABLISHMENT), GOVERNMENT OF INDIA TO ALL MINISTRIES/DEPARTMENTS OF THE GOVT. OF INDIA. EXT.R4(B): COPY OF STANDING ORDER NO.1602 DTD. 15/03/2002 ISSUED BY KHADI AND VILLAGE INDUSTRIES COMMISSION, MUMBAI – 56. /TRUE COPY/ P.A.TO JUDGE Kss T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). Nos.8829/2005-A & 22707/2005-C ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 11th day of February, 2009 J U D G M E N T In both these writ petitions, the challenge is against the orders passed by the third respondent by which the applications for appointment under the Scheme for Compassionate Appointment were rejected. These orders are produced as Exts.P18 and 14 respectively in the two writ petitions. 2. The facts arising in W.P.(C).No.8829/2005 are the following:- The first petitioner is the father of the second petitioner and he belonged to the Hindu Cheramar community recognised as Scheduled Caste and due to loss of eye sight he could not discharge his duties and therefore, he submitted an application for premature voluntary retirement on medical grounds. Ext.P1 is the said application. The first petitioner put in an application for appointment of his daughter on compassionate grounds and the details were submitted as required in Exts.P4 and P5 communications issued by the second respondent. Exts.P6 to P11 are the supporting documents produced by them. By Ext.P12 order, the application for voluntary retirement on medical grounds was accepted. The application for appointment on compassionate grounds was rejected by Ext.P18. W.P.(C) No.8829/2005 & 22707/2005 -:2:- 3. As far as W.P.(C).No.22707/2005 is concerned, the situation is identical. The first petitioner is the father of the second petitioner. They belong to the Pallaru (Kudamamar) community recognised as Scheduled Caste. The first petitioner entered the service of the Khadi and Village Industries Commission on 01/01/1980 as PPT Worker and was redesignated as a Peon with effect from 19/07/1999. Because of health reasons, he had submitted an application for premature retirement and sought grant of invalid pension which was submitted as per Ext.P1. The first petitioner thereafter produced the necessary medical certificates and later under the Scheme for Compassionate Appointment of dependents, he submitted application as per Ext.P3 for appointing the second petitioner who is his son in any other suitable employment. All the details like the certificate of the Village Officer, and the objection certificate of other legal heirs were produced. Ext.P10 is the order by which the application for voluntary retirement on medical grounds was accepted. The first petitioner had a length of service of 23 years under the Khadi and Village Industries Commission. The application for appointment on compassionate grounds was rejected by Ext.P14. W.P.(C) No.8829/2005 & 22707/2005 -:3:- 4. The orders Exts.P18 and P14 respectively in both the writ petitions are identically drawn. The first thing to be noticed is that the respective parties have not been informed as to why the applications were rejected. The concluding paragraph only reiterates that considering the parameters laid down by the Government and taking into account the vacancies available vis-a-vis the number of eligible applications received for compassionate appointment as on 31/12/2003, their applications for compassionate appointment could not be considered. It will only show that they have only recorded the scheme framed by the Government of India as per O.M.No.14014/6/94-Est(D) dated 09/10/1998, of DoPT. Whether the eligibility and other conditions of the respective applicants were considered against available vacancies have not been stated in these orders under challenge. Actually, there is no discussion on the merits of the applications. It is not a case where the applicants were found ineligible for appointment. It appears that the approach made is that there were no sufficient vacancies for granting appointment. Obviously, that will not affect the rights of the respective applicants from getting appointment on compassionate grounds. 5. Counter affidavits have been filed by the fourth respondent, on behalf of respondent Nos.1, 3 and 4, in both the writ petitions. Ext.R4(a) is W.P.(C) No.8829/2005 & 22707/2005 -:4:- the Scheme for Compassionate Appointment that has been produced along with the counter affidavit and the learned counsel for the respondents submitted that going by Clause 7 especially Sub Clause (b), only 5% vacancies has to be set apart for compassionate appointment. It is pointed out that the committee headed by the Deputy Chief Executive Officer (General Administration) scrutinized all the applications and granted appointment to several category members of deceased employee etc.. It is pointed out that of during 2002 and 2003 there were 98 vacancies available and as per DoPT guidelines 5% vacancies can be considered for compassionate appointment scheme. 49 cases were placed before the Committee for consideration. The Committee has gone through 49 cases as per the DoPT guidelines and KVIC's decision and priority was given to Class-IV employees while deciding the cases. Therefore, first priority was given to death cases of Class IV employees whose spouse applied for compassionate appointment and whose children are minor and there is no earning member in the family. Second priority was given to the death case of Group-C employees whose widows applied for compassionate appointment and whose children are minors. W.P.(C) No.8829/2005 & 22707/2005 -:5:- 6. Even in the counter affidavit there is no averment to the effect that the petitioners' applications were rejected for not fulfilling any eligibility criteria. Apparently there is no dispute in regard to the claim for appointment. But the refusal is on the ground that during that year there were no sufficient vacancies. 7. The question is whether the appointment is reduced to 5% in a year. Even going by the scheme Ext.R4(a) there is no such prescription. Only thing is that 5% of vacancies are set apart for the appointment on compassionate scheme. That does not mean that after one year the application lapses. They should be considered for other vacancies in coming years. The learned counsel for the petitioner submitted that both the applicants belong to the category of S.C and even going by Clause 7(b) there is a specific provision that a person selected for appointment on compassionate grounds should be adjusted against the appropriate category namely, SC/ST/OBC/General depending upon the category to which he belongs. The sub clause (e) and (f) of Clause (7) is important. The same is extracted below:- “7(e):- Employment under the scheme is not confined to the Ministry/Department/Office in which W.P.(C) No.8829/2005 & 22707/2005 -:6:- deceased/medically retired Government servant had been working. Such an appointment can be given anywhere under the Government of India depending upon availability of a suitable vacancy meant for the purpose of compassionate appointment. 7(f):- If sufficient vacancies are not available in any particular office to accommodate the persons in the waiting list for compassionate appointment, it is open to the administrative Ministry/Department/Office to take up the matter with other Ministries/Departments/Offices of the Government of India to provide at an early date appointment on compassionate grounds to those in the waiting list.” 8. Going by these two clauses, simply because there are no sufficient vacancies that will not result in disallowing the applications. Their name should be considered for appointment in any other Ministry/Department etc.. 9. In the light of the above provisions, the impugned Exts.P18 and P14 respectively in both the writ petitions cannot be sustained. They are accordingly, quashed. 10. The respondents are directed to consider the claim for appointment of the petitioners in accordance with the scheme and in W.P.(C) No.8829/2005 & 22707/2005 -:7:- accordance with their qualification and eligibility and depending upon availability of suitable vacancies. If there are no sufficient vacancies in the particular office, the method pointed out under sub clause (e) and (f) of Clause (7) can be adopted. Appropriate action should be taken within a period of three months from the date of receipt of the copy of this judgment. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) ms