IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 WP(C).No. 8062 of 2008(I) --------------------------------- PETITIONER(S): --------------------- JAYASREE M.K. W/O.LATE HAVILDAR JAGADEESAN, NO.14614296 H MUZHAPPILLANGAD, KANNUR BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): ------------------------ 1. UNION OF INDIA, REPRESENTED BY DEFENCE SECRETARY, DEFENCE, 101, SOUTH BLOCK NEW DELHI. 2. DIRECTORATE GENERAL OF EME (EME PERS) MASTER GENERAL OF ORDINANCE BRANCH ARMY HEAD QUARTERS, DHQ PO NEW DELHI 110 001. 3. MAJOR OFFICER COMMANDING 194 FIELD WORKSHOP C/O. 56 A.P.O. 4. LT. COLONAL, OFFICER COMMANDING 194 FIELD WORKSHOP PIN 906194 C/O. 56 A.P.O. ADV. MR. P.PARAMESWARAN NAIR, ASST. S.G MR..RAJMOHAN R.PILLAI - CGSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 8062/2008 I APPENDIX PETITIONER'S EXHIBITS : EXT.P1. COPY OF THE LETTER DT. 23/11/04. EXT.P2. COPY OF THE LETTER DT. 20/12/04. EXT.P3. COPY OF THE COMMUNICATION DT. 22/1/05. EXT.P4. COPY OF THE FORM OF APPLICATION DULY ATTESTED BY ZILLA SAINIK WELFARE OFFICER, KANNUR. EXT.P5. COPY OF THE AFFIDAIT. EXT.P6. COPY OF THE PROPERTY CERTIFICATE BY TAHSILDAR KANNUR DT. 8/12/05. EXT.P7. COPY OF THE PROPERTY CERTIFICATE DT. 22/12/05 BY TAHSILDAR, KANNUR. EXT.P8. COPY OF THE LAND VALUE CERTIFICATE OF PETITIONER BY TAHSILDAR, KANNUR. EXT.P9. COPY OF THE CERTIFICATE BY TAHSILDAR, KANNUR DT. 10/2/05. EXT.P10. COPY OF THE SSLC CERTIFICATE. EXT.P11. COPY OF THE MARK LIST. EXT.P12. COPY OF THE CERTIFICATE DT. 11/08/2005. EXT.P13. COPY OF THE RECOMMENDTIONAL LETTER FOR COMPASSIONATE APPOINTMENT OF PETITIONER DT. 19/8/2005. EXT.P14. COPY OF THE LETTER DT. 31/1/2008. EXT.P15. COPY OF THE ORDER DT. 21/2/2008 BY R4. EXT.P16. COPY OF THE EXTRACT FROM SOP CIRCULATED UNDER ARMY HQ LETTER DT. 9/11/98. EXT.P17. COPY OF THE LETTER DT. 30/08/05 BY THE SENIOR RECORD OFFICER EME RECORDS, SECUNDERABAD TO THE PETITIONER TOGETHER WITH CERTIFICATE OF ATTRIBUTABILITY. RESPONDENTS' EXHIBITS : EXT.R1. COPY OF THE OFFICIAL LETTER NO. B/12049/EME PERS DT. 23/11/04 OF THE R2. EXT.R2. COPY OF THE FIELD WORKSHOP LETTER NO. 14614296W/JK/EST/PC DT. 20/12/2004. EXT.R3. COPY OF THE FILED WORKSHOP LETTER NO. 21601/PC/JK/EME/ DT. 22/1/2005. WP(C) NO. 8062/2008 I EXT.R4. COPY OF THE LETTER NO. 21601/PC/JK/EME DT. 17/1/2006. EXT.R5. COPY OF THE LETTER NO. B/03184/JMK/33/EME/ CIV-2 DT. 31/1/2008 OF THE R2. EXT.R6. COPY OF THE FIELD WORKSHOP LETTER NO. 21601/PC/JK/EME DT. 21/2/2008. / TRUE COPY / tga T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.8062/2008-I ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 24th day of March, 2009 J U D G M E N T The petitioner's husband late Sri.Jagadeesan died while in service on 29/09/2004. He had completed 15 years and 29 days of service while working under the respondents. The deceased is survived by the petitioner, minor daughter and mother. By Ext.P1, the petitioner was directed to submit an application for compassionate appointment through the last unit of her late husband. Again by Ext.P2, she was advised to send her consent for employment assistance. Accordingly, she affirmed her consent. Thereafter, Ext.P3 was issued to her directing to produce various documents like education certificate, caste certificate, property certificate etc. Exts.P4 and P5 respectively are the form of application and the affidavit required. Exts.P6, P7 and P8 are the other certificates mentioned in Ext.P3. She belongs to a backward caste which is evidenced by Ext.P9 certificate of the Tahsildar. Exts.P10 and P11 are the copy of the S.S.L.C certificate and the copy of the marklist. Ext.P12 is the eligibility certificate for appointment issued by the third respondent. Ext.P13 is the recommendation made by the Commanding Officer for giving compassionate appointment to the petitioner. It is stated therein that the W.P.(C) No.8062/2008 -:2:- widow has no other source of income except terminal benefits of the deceased and also having responsibility to look after one minor daughter and old aged mother. The application stands rejected by Ext.P15 stating that there are no sufficient vacancies under the 5% quota. 2. The respondents have filed a counter affidavit justifying the rejection in tune with Ext.P15 order. It is pointed out that the merit of the case for compassionate appointment was considered by the Board of Officers in four consecutive Boards. The merit was decided by allotting points to the applicants based on various attributes like family pension, terminal benefits, movable/immovable property, monthly income, number of dependents, number of minor children, number of unmarried daughters and left over service. 3. The learned counsel for the petitioner submitted that there was no justification for rejecting her claim as the situation of the family is pitiable and she has no other source of income except the terminal benefits of the deceased. She is aged 28 at the time of making the application. She has studied upto S.S.L.C. It is pointed out that considering her family background and lack of proper income and in view of the fact that family is only having 8.25 cents of uncultivable land without any yield from the property, she was entitled for compassionate appointment on a priority basis. It is further pointed out that when a case for compassionate W.P.(C) No.8062/2008 -:3:- appointment is considered, the effect of the death of the person in the affairs of the family has to be given prime importance. If that be so, the petitioner who is only aged 28 years and is not having any substantial income should have been considered for a suitable appointment. The decision of the Apex Court in Smt.Sushma Gosain and others vs. Union of India and others [(1989) 4 SCC (L&S) 662] is also relied upon to contend for the position that the hardship that is caused to the family should be considered while considering the claim. 4. Herein going by Ext.P15, it is true that the case has been considered by the different Boards. They adopted point system also. But the question is whether sufficient vacancies have been allotted after considering the points of applicants under the scheme. In Ext.P15, it is stated that there is a ceiling of 5% quota and, therefore, the vacancies were only 01,01,01 and 01 in the respective Board. The said situation will not result in any relief to the bereaved family. True that ceiling can be fixed by the appointing authority in the matter. But if such a ceiling deprives the family of a deceased person like the Havildar Jagadeesan, then the purpose of granting appointment under the scheme will not materialise at all. As held by the Apex Court in Sushma's case [(1989) 4 SCC (L&S) 662], the purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such W.P.(C) No.8062/2008 -:4:- appointment should, therefore, be provided immediately to redeem the family in distress. If the respondents are clinging on to the 5% quota within the ceiling, then only one person could get appointment. She was assigned seniority as 26,24,24,and 27 in the respective Board meetings. Therefore, she may not at any point of time be able to get an appointment even though she is eligible to get it going by Exts.P12 and P13. Rather than deciding to keep alive the claim, the respondents have chosen to reject the application itself. That is clearly illegal and improper. Merely because the respondents are not ear marking certain number of sufficient vacancies that will not result in rejection of the claim at all. In a matter like this which should get a serious attention, to give relief to the bereaved family, the claim cannot be rejected at all. The respondents are entitled to create supernumerary posts to give suitable appointments. In the case like this where the only benefit available to the family is meager pension which is no where near the requirements of the family to pull on, and the family is even not having any cultivable land to have a decent income to live on, the respondents ought to have considered the matter in a more objective manner. Going by the facts of this case, the application was filed pursuant to Ext.P1 to P3 communications. It was recommended by Ext.P13 but at the end she is given a reply that the application is finally rejected. W.P.(C) No.8062/2008 -:5:- 5. In Smt.Sushma Gosain's case (supra) [(1989) 4 SCC (L&S) 662], the Apex Court held that “if there is no suitable post for appointment, supernumerary post should be created to accommodate the applicant”. 6. The appointment being mainly to give solace to the family and to mitigate the hardship due to the death of the breadwinner of the family, I find that the matter should get a proper consideration at the hands of the respondents. Therefore, Ext.P15 is quashed. The claim of the petitioner for compassionate appointment will be kept alive. Her eligibility is clear from Exts.P12 and P13. The respondents are directed to reconsider the same and pass appropriate orders in tune with her qualification within three months from the date of receipt of the copy of this judgment. The pitiable condition of the family requires proper attention, while considering her claim. The respondents will consider creating a supernumerary post to give solace to the family and grant appointment to the petitioner. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) ms