IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 10TH FEBRUARY 2010 / 21ST MAGHA 1931 WA.No. 1664 of 2009() --------------------- AGAINST THE JUDGEMENT IN WPC.1848/2008 Dated 30/03/2009 .................... APPELLANT(S)/RESPONDENTS 2 TO 4: -------------- 1. E.S.I. CORPORATION, KOTLA ROAD, NEW DELHI, REPRESENTED BY ITS DIRECTOR GENERAL OFFICE OF THE ESI CORPORATION, KOTLA ROAD, NEW DELHI-110 002. 2. DIRECTOR GENERAL, E.S.I. CORPORATION, KOTLA ROAD, NEW DELHI-110 002. 3. DEPUTY DIRECTOR (ADMINISTRATION) ESI CORPORATION, PANCHADEEP BHAVAN, NORTH SWARAJ ROUND, THRISSUR. BY ADV. SRI.T.V.AJAYAKUMAR RESPONDENT(S)/PETITIONER & 1ST RESPONDENT: --------------- 1. BAIJU V.P., S/O. LATE V.P. SANKARAN, ELAYEDATH THAZHE HOUSE, PERUVATTUR P.O., KOYILANDY VIA, KOZHIKODE DIST. 2. UNION OF INDIA REP. BY ITS SECRETARY TO GOVERNMENT, MINISTRY OF LABOUR, NEW DELHI. ADV. SRI.T.G.RAJENDRAN FOR R1 SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI FOR R2 SRI.GEORGE JOSEPH, CGC FOR R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------- W.A.No.1664 of 2009 ---------------------------------------- Dated 10th February, 2010 JUDGMENT Balakrishnan Nair, J. Respondents 2 to 4 in the Writ Petition are the appellants. The first respondent herein was the writ petitioner. The brief facts of the case are as follows. The first respondent is a member of the Scheduled Caste. His father was the Branch Manager of the first appellant Corporation. He died while in service on 19.11.2000, after serving 36 years. His father married thrice. His first wife was divorced in 1967. In that relationship, there was one child. The writ petitioner was born out of the second marriage. His mother died leaving behind five children including him. His father married again and in that marriage there were two children. Because of the presence of children of three wives and one widow, the submission of application for employment on compassionate grounds was delayed. Soon after the death, the third wife filed a representation on 26.2.2001 claiming employment on behalf of the first respondent/writ petitioner. Thereupon, she was informed, by Ext.P3 dated 28.2.2001, to submit the application in the prescribed form. Finally, application was submitted in the prescribed form on 4.2.2003. The first W.A.No.1664/2009 2 respondent/writ petitioner explained the delay in filing the application by pointing out that there was delay in getting the succession certificate from the Court. Without a succession certificate, the application would not have been entertained. The delay that took place in the court proceedings was unavoidable. Still there were some defects which were cured and finally the defect free application was submitted on 26.2.2004. But, the said application was rejected by Ext.P6 communication dated 14.5.2004 which reads as follows: “With reference to your letter dtd. 26.2.2004 addressed to the Director General, E.S.I.C., New Delhi, I am directed to convey that the Committee constituted for the purpose has examined your case in accordance with the Government of India instructions and found the case is not fit for appointment on compassionate grounds.” Challenging Ext.P6 and seeking consequential reliefs, the Writ Petition was filed. The respondents filed a counter affidavit stating that the application was in fact rejected by Ext.R4(i) dated 11.5.2004 and Ext.P6 is the consequential communication. The relevant portion of Ext.R4(i) reads as follows: “Please find enclosed herewith the copy of representation dated 26.02.2004 from Sh.Baiju V.P. on the above subject. In this connection, I am directed to inform you that the case of Sh.Baiju V.P. was placed before the committee consisting of Insurance Commissioner, Medical Commissioner and the Additional Commissioner (P&A). After going through the details of the case, committee has examined the case in W.A.No.1664/2009 3 accordance with the Govt. of India instructions and found not a fit case for appointment on compassionate grounds and recommended to close the case. The applicant may be informed accordingly.” The first respondent/writ petitioner submitted a representation before the Government and the Government, it appears, forwarded the same to the Employees' State Insurance Corporation. Thereupon, he was again informed by Ext.R4(j) that there were no vacancies and further his claim was time barred. The relevant portion of that order reads as follows: “With reference to your representation dated 14.8.2004 addressed to Hon'ble Minister of Labour & Employment, New Delhi. I am directed to inform that your case for appointment on compassionate grounds could not be considered as there was no vacancy in the Region. According to Govt. of India's instructions the appointment on compassionate ground in deserving cases can be made only if the vacancy meant for appointment on compassionate grounds are available that too within a ceiling of 5% under the direct recruitment quota. The maximum time for offering appointment on compassionate grounds is three years and your case has also become time barred and cannot be considered. This issue with the approval of Additional Commissioner (P&A).” In the above background, the Writ Petition was filed seeking appropriate reliefs for getting employment under the first appellant W.A.No.1664/2009 4 Corporation. 2. The respondents in their counter affidavit contended that only 5% of the vacancies, available for recruitment in a year, could be set apart for employment under the Dying-in-harness Scheme. At the relevant time, no vacancies arose for a period of three years in Group `C' or Group `D' posts for direct recruitment. One vacancy can be set apart, if at least 20 vacancies are available for direct recruitment. They also had a case that the three year period, during which the application will be considered, has to be reckoned from the date of death. In this case, the application was received, complete in all respects, after the lapse of three years, on 26.2.2004. Therefore, the application itself was time barred, it was submitted. 3. The learned Single Judge, after hearing both sides, allowed the Writ Petition. Hence this Writ Appeal. In the appeal, this Court directed the appellants to file a statement regarding the vacancies, which arose between 26.2.2004 and 26.2.2007. Pursuant to that, they have filed a statement stating that between the above mentioned period, only 11 vacancies of L.D.C. arose and therefore, no vacancy could have been set apart for compassionate appointment. In group D posts, 15 vacancies arose during the above period. Even though no vacancy was available in 5% quota, one person was appointed as Peon on 8.9.2005. The first respondent filed a reply W.A.No.1664/2009 5 affidavit producing a communication received by him on 19.5.2008 under the Right to Information Act. Going by that, between 2004- 2007, there were several vacancies. In group `D' posts, there were 35 vacancies in 2003-2004, 40 vacancies in 2004-2005, 45 vacancies in 2005-2006 and 41 vacancies in 2006-2007. In group `C' posts, there were 9 vacancies in 2005-2006 and 12 vacancies in 2006-2007. Relying on the said communication, which is produced as Annexure I along with the reply affidavit dated 18.9.2009, the first respondent submitted that the statement made by the Employees' State Insurance Corporation is not correct. The appellants filed a rejoinder in which it is stated that the vacancies mentioned are back log vacancies and not vacancies which actually arose during the relevant years. According to the appellants, the vacancy which arose in a particular year alone can be taken into account for computing the 5% quota available for compassionate employment. 4. In this case, we notice that the financial position of the first respondent's family was pathetic and it was a case deserving employment on compassionate ground. In paragraph 2 of the writ petition, he has stated that his sister V.P.Molly got married to an agricultural labourer and they are living in a Lakshamveedu colony. His elder brother Sri.V.P.Shaji is married and he lives as a coolie/agricultural labourer. He is also residing in a Lakshamveedu W.A.No.1664/2009 6 colony. At the time of death, the other members of his family were unemployed and they were solely dependent on the income of his father. So, we are of the view that it is a case which required to be dealt with, with compassion. The delay in this case canvassed by the appellants before us cannot be accepted mechanically. Because of the presence of the children in three marriages, the first respondent could have applied only with the succession certificate issued by the competent Court. Law's delays are well known. The competent court ordered the issuance of the succession certificate only on 30.11.2002. After obtaining the certified copy of the succession certificate, he has submitted the application. So, we think, the delay was justified and it was not proper to count the three years for consideration of application from the date of death. Having regard to the special facts of the case, the first respondent's claim should have been considered for three years from the date of receipt of the valid application. Going by the pleadings and the materials on record, we find that the appellants proceeded on the footing that 5% of the vacancies has to be reckoned with reference to the vacancies that arise in a particular year. Going by the relevant orders and circulars of the Central Government on this point, we think, such a view is unsupportable. The vacancies available for direct recruitment in a particular year should be taken into account, even if those vacancies arose during previous years. If vacancies are W.A.No.1664/2009 7 reckoned in that manner, there were vacancies in Class 4 posts for employment on compassionate ground. In that view of the matter, the competent authority of the first appellant Employees' State Insurance Corporation should reconsider the claim of the first respondent for employment on compassionate ground, with reference to the actual vacancies available for a period of three years from the date of submission of the valid application (26.2.2004). This exercise shall be undertaken by the competent authority and final orders passed within three months from the date of receipt/production of a copy of this judgment. If vacancies were available during that period and he is found eligible for appointment, he need be actually appointed only prospectively, as and when a vacancy is available. Writ Appeal is disposed of as above. K.BALAKRISHNAN NAIR Judge P.N.RAVINDRAN Judge TKS