IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 22ND JANUARY 2009 / 2ND MAGHA 1930 WA.No. 2668 of 2005() --------------------- AGAINST THE JUDGEMENT IN OP.18590/1999 Dated 18/03/2005 .................... APPELLANTS: -------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF DEFENCE, (PENSION GRIEVANCE CELL), 200`A' WING, SENA BHAVAN, NEW DELHI. 2. CHIEF CONTROLLER OF DEFENCE ACCOUNTS, (PENSION), ALLAHABAD. 3. COMMANDING OFFICER 352(1), SUPPLY P1 ASC, C/O. 99 APO. 4. COMMANDING OFFICER, ARMY SUPPLY CORPS, RECORDS (MT), BANGALORE-560 007. BY ADV. SRI.P.MURALEEDHARAN, ADDL.CGSC RESPONDENT: --------------- K.INDIRA, MANGALI HOUSE, W/O.RADHAKRISHNAN.M., EX.NO. 13865142 NK (TS), PANJAL P.O., CHERUTHURUTHY VIA, THRISSUR DIST. ADV. SRI.SHAJI THOMAS PORKKATTIL THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & P.R.RAMACHANDRA MENON, JJ. ---------------------------------------------- W.A. No.2668 of 2005 ---------------------------------------------- Dated 22nd January, 2009. J U D G M E N T Kurian Joseph, J. C.M.Appln.No.3005/05 : Heard. Allowed. Appeal admitted. Adv.Sri.Shaji Thomas takes notice. Respondents in O.P.18590/99 are the appellants. The Original Petition was filed seeking a direction to conduct an investigation regarding the desertion of the husband of the writ petitioner with effect from 5.10.1995. There was a further prayer to settle the eligible service benefits, such as pension, gratuity, compassionate employment etc. 2. The learned Single Judge observed that “Going by the statement of the respondents, petitioner's husband should have been on his way from Bangalore to Military Hospital on the date of missing, that is 5.10.1995. Apart from the presumption of death, the circumstances do not suggest any chance of petitioner's husband deserting the Army towards the end of his career.” In such circumstances, the writ petition was disposed of directing the respondents to grant all service benefits to the writ WA NO.2668/05 2 petitioner and other family members on the premises that petitioner's husband Mr.M.Radhakrishnan died in service, on 5.10.1995. There was also a direction to grant all service benefits, including the benefit of appointment on compassionate ground. 3. Sri.P.Muraleedharan, learned Central Government Standing Counsel rightly points out that the question of compassionate appointment would depend on the availability of vacancies, and depending on such availability only, that matter can be considered. It is also submitted that all other eligible benefits have been disbursed. 4. In the above circumstances, the mandatory direction in the judgment under appeal to provide appointment on compassionate ground is vacated. There will be a direction to the appellants to consider the case of the family members of the writ petitioner for appointment under the compassionate employment scheme, treating the date of death of the incumbent as 5.10.1995. In other words, the date of death of the incumbent would be reckoned while enlisting the entitlement for WA NO.2668/05 3 compassionate appointment. The Writ Appeal is partly allowed as above. KURIAN JOSEPH, JUDGE. P.R.RAMACHANDRA MENON, JUDGE. tgs KURIAN JOSEPH & P.R.RAMACHANDRA MENON, JJ ---------------------------------------------- W.A. No.2668 of 2005 ---------------------------------------------- J U D G M E N T Dated 22nd January, 2009.