IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 7TH APRIL 2009 / 17TH CHAITHRA 1931 OP.No. 2070 of 2003(U) -------------------------------- PETITIONER(S): ---------------------- SMT.SOFIYA S., W/O. LATE NO.13960820 NAIK/NA BAISIN S., BAISIN MANZIL, KAKKAKUNNU P.O.,SOORANADU SOUTH, KOLLAM-690 522, KERALA. BY ADV. MR.N.UNNIKRISHNAN RESPONDENT(S): ------------------------ 1. THE DIRECTOR GENERAL OF MEDICAL SERVICES (ARMY), ADJUTANT GENERAL'S BRANCH, ARMY HEADQUARTERS, `L' BLOCK, NEW DELHI-110 001. 2. THE SENIOR RECORD OFFICER, OFFICE OF O.I.C. RECORDS, ARMY MEDICAL CORPS RECORDS, LUCKNOW-226 002. 3. THE SECRETARY TO THE GOVERNMENT OF INDIA DEPARTMENT OF PERSONNEL AND TRAINING, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES & PENSION, NORTH BLOCK, NEW DELHI-110 001. 4. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI. BY ADV. SRI.P.MURALEEDHARAN, ADDL.CGSC THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 07/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 2070/2003-U APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE LETTER NO.500329/NE/WEL/EMP/PC-210 DATED 10/08/1999 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER. EXT.P2: COPY OF THE LETTER DATED 31/03/2001 SUBMITTED BY THE PETITIONER TO THE FIRST RESPONDENT. EXT.P3: COPY OF THE LAWYER'S NOTICE DATED 29/06/2001 SUBMITTED BY THE ADVOCATE B.SANTHAKUMR TO THE FIRST RESPONDENT. EXT.P4: COPY OF THE LETTER NO.B/72301/DGMS-3(B) DATED 07/08/2001 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER. EXT.P5: COPY OF THE LETTER NO.B/72301/DGMS-3(B) DATED 26/08/2002 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER. EXT.P6: COPY OF THE APPLICATION FOR APPENDIX-C DATED 06/08/1998 SUBMITTED BY THE PETITIONER. RESPONDENT'S EXHIBITS: EXT.R2(a): COPY OF THE ARMY HEADQUARTERS,SIGNAL NO.359145/DGMS-3B DATED 06 MARCH-2003. EXT.R2(b): COPY OF THE LETTER NO.B/72301/DGMS-3(B), DATED 05 AUG.-2002. //TRUE COPY// P.S. TO JUDGE Rs/ S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 2070 of 2003 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 7th April, 2009. J U D G M E N T The petitioner is the widow of late S. Baisan, who was a Naik in the Army. He died while in service on 29-6-1998, leaving the petitioner and two minor children aged 11 and 7 years who were dependent on him. As per the scheme available for compassionate employment for dependents of deceased Government servants, the petitioner filed an application for compassionate employment on 6-8- 1998. By Ext. P1 letter dated 10-8-1999, the petitioner was directed to produce certain documents. The petitioner produced the documents mentioned therein. By letter dated 31-7-2000, the petitioner was informed that she could not be considered by the selection board for want of certain information regarding revised family pension etc., and her case would be considered after the constitution of the Board by August/September, 2000. She was asked to submit details of revised family pension. By letter dated 22-3-2001, the petitioner was informed by the 1st respondent that her case could not be considered due to non-availability of family pension details. By letter dated 23-4- 2001, the petitioner was informed that her name appears in the list of candidates selected for compassionate employment at sl. no. 48 and her case does not appear within the range of candidates eligible for compassionate employment. Despite repeated representations, her grievance in this matter was not considered. Therefore, she preferred Ext. P3 advocate's notice dated 29-6-2001. Thereafter, by Ext. P4 letter dated 7-8-2001, she was again informed that the selection board had considered her case along with 249 others and her name appeared at sl. no. 48 having obtained 61 points and that 23 persons were selected. An identical letter was again issued, namely, Ext. P5 dated 26-8-2002. It is under the above circumstances, the petitioner filed this original petition seeking the following reliefs: O.P. No. 2070/2003 -: 2 :- “i) Call for the records leading to the denial of appointment to the petitioner under “employment Assistance on Compassionate Grounds to the Dependant of Deceased Government Servants Scheme”; ii) Issue a writ of mandamus or appropriate writ, order or direction to the respondents to create supernumerary posts, if necessary and to issue necessary orders of appointment to the petitioner on the basis of her Exhibit P6 application, within a reasonable time.” 2. A counter affidavit and an additional counter affidavit have been filed, which again disclose nothing apart from the information available in the communications produced by the petitioner along with the original petition. But, they repeatedly asserted in the counter affidavit that the petitioner's case was considered thrice and she did not come within the range of persons who could be selected for employment on the basis of the marks awarded to her. 3. This original petition came up for hearing before another learned Judge on 8-8-2006. At that time, the learned Judge passed the following order: “In this matter, the counter affidavit does not disclose or demonstrate as to how 9% selected candidates happen to be comparatively better place than the petitioner. Except to say that the petitioner secured only 60 marks, there is no details given in the counter affidavit. In the circumstances, the file relating to the selection for appointment on compassionate ground may be made available to this Court. The learned Government Pleader appearing for the respondent shall communicate this order to the concerned officer and get the file.” Pursuant thereto, today, a file has been produced which appears to be copy of the documents available in the file relating to the petitioner. The file has the heading, “FILE IN RESPECT OF SMT SOFIA. S WIFE OF LATE NK BAISAN. S”. I have perused that file. It contains the details of marks awarded and a rank list of candidates considered for one selection and the list of selected candidates. In that selection, O.P. No. 2070/2003 -: 3 :- only nine persons were selected. As I have already stated, in Ext. P 4, it is stated that 23 persons were selected. Although, repeatedly the respondents would contend that the petitioner's case was considered thrice along with the applicants available during three selections, the file contains only details relating to one selection. Of course, going by the names available and the marks awarded to the petitioner, it appears to be in accordance with the norms. But, when the petitioner was considered thrice, there should have been three rank lists for the three selections. The file contains only one. That too, for selection of only nine persons whereas in Ext. P 4, it is stated that 23 persons were selected. As such, the respondents have no consistent case. The files are also bereft of any details of two other selections. Therefore, I have no other go but to draw an adverse inference against the respondents to the effect that the petitioner was not considered for the other selections and had she been considered for those two selections, she would have been selected. In that view, the petitioner is entitled to succeed. Accordingly, the respondents are directed to see that the petitioner is given compassionate employment. Orders in this regard shall be issued and the petitioner shall be allowed to join duty in the appointed post within three months from the date of receipt of a copy of this judgment. The original petition is allowed as above. S. Siri Jagan, Judge. Tds/ O.P. No. 2070/2003 -: 4 :- S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 2070 of 2003 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= J U D G M E N T 7th April, 2009.