IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 WP(C).No. 5285 of 2006(D) ------------------------------------- PETITIONER(S): ---------------------- SMITHA GOPAN, W/O.LATE S.GOPAKUMAR, AGED 35 YEARS, KULATHINKARA HOUSE, MENAMKULAM, KAZHAKOOTAM, THIRUVANANTHAPURAM. BY ADV. MR.JOSE TOM C.KANDATHIL RESPONDENT(S): ------------------------- 1. THE DIRECTOR GENERAL, OFFICE OF THE DIRECTORATE GENERAL, CENTRAL INDUSTRIAL SECURITY FORCE, (MINISTRY OF HOME AFFAIRS), BLOCK NO.13, CGO COMPLEX, LODHI ROAD, NEW DELHI-03. 2. THE INSPECTOR GENERAL, CENTRAL INDUSTRIAL SECURITY FORCE, CISF SOUTH SECTOR, CHENNAI. 3. THE COMMANDANT, CENTRAL INDUSTRIAL SECURITY FORCE, CISF 6TH REN. BN ARAKKONAM, SURAKSHA CAMPUS, VELLOOR, TAMIL NADU. R1 TO R3 BY ADV. MR.P.PARAMESWARAN NAIR,ASST.SOLICITOR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 5285/2006-D APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE INTIMATION RECEIVED FROM THE 3RD RESPONDENT DATED 17/12/97. EXT.P2: COPY OF THE LETTER RECEIVE4ED FROM THE 3RD RESPONDENT TO THE PETITIONER DATD 20/03/1998. EXT.P3: COPY OF THE LETTER RECEIVED FROM THE 3RD RESPONDENT DATED 05/12/98. EXT.P4: COPY OF THE REQUEST FOR SUBMISSION OF APPLICATION RECEIVED FROM THE 3RD RESPONDENT DTED 27/08/2003. EXT.P5: COPY OF THE NOTICE OF RECRUITMENT AT MUMBAI DATED 01/02/04. EXT.P6: COPY OF THE REJECTION SLIP DATED 23/02/2004. EXT.P7: COPY OF THE NOTICE FROM THE GROUP COMMANDANT DATED 31/12/2004. EXT.P8: COPY OF THE INTIMATION FROM THE OFFICE OF THE 1ST RESPONDENT DATED 23/02/2005. EXT.P9: COPY OF THE NOTICE OF RECRUITMENT AT FACT, UDYOGAMANDAL DATED 12/08/2005. EXT.P10: COPY OF THE REPRESENTATION ADDRESSED TO THE 1ST RESPONDENT BY THE PETITIONER DATED 13/12/2005. EXT.P11: COPY OF THE LETTER ADDRESSED TO THE RESPONDENT DATED 12/12/2007. EXT.P12: COPY OF THE LETTER RECEIVED FROM THE SECOND RESPONDENT DATED 07/01/2008. RESPONDENT'S EXHIBITS: EXT.R1: COPY OF THE LETTER DATED 17/11/1998 ISSUED TO THE PETITIONER. EXT.R2: COPY OF THE LETTER DATED 07/02/2004 ISSUED TO THE PETITIONER. EXT.R3: COPY OF THE LETTER DATED 31/12/2004 ISSUED TO THE PETITIONER. EXT.R4: COPY OF THE LETTER DATED 19/10/2005 ISSUED TO THE PETITIONER. EXT.R5: COPY OF THE O.M.NO.14014/19/2002-ESTT(D) DATED 05/05/2003. EXT.R3(a): COPY OF THE DETAILS OF THE APPOINTMENTS GIVEN TO THE DEPENDENTS WHO DIED IN HARNESS AFTER 07/06/97. EXT.R3(b): COPY OF THE DETAILS OF APPLICATIONS RCEIVED FOR COMPASSIONATE APPOINTMENT AFTER 07/06/97. EXT.R3(c): COPY OF THE APPOINTMENTS MADE AFTER 07/06/97 TO THE DEPENDENTS OF CISF PERSONNEL WHO DIED IN HARNESS BEFORE 07/06/97. EXT.R3(d): COPY OF THE CISF CIRCULAR NO.5/2008/R&S DATED 14/03/2008. //TRUE COPY// P.S. TO JUDGE Rs/ T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 5285 of 2006-D - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of March, 2009. JUDGMENT The petitioner is an applicant under the scheme providing appointment to the dependents of employees dying in harness. Her husband died on 7.6.1997 while he was in the service of CISF. The petitioner had been seeking for appointment from the year 1997 onwards. By Ext.P1, she was given a reply stating that her application is being considered by the Headquarters. Thereafter, she received a written communication from the third respondent informing that there will be some delay in the light of the framing of new rules. By Ext.P3, she was given a reply stating that her application could not be allowed. 2. Again by Ext.P4 the petitioner was asked to submit her application along with the required documents. Later, she was directed to appear before the Recruitment Board at the office of Commandant, CISF Unit, Mumbai on 22 and 23/2/2004. She was put to physical eligibility test at that point of time. The petitioner could not withstand the climate and she failed in the test. Again, aggrieved by the denial of the benefit, she submitted Ext.P7 representation. Later, by Ext.P8 she was given a reply stating that wpc 5285/2006 2 even though her application was considered, she could not be granted the benefit at that point of time, as sufficient number of vacancies were not available. Later, she was directed to report for the recruitment at CISF Unit, Udyogamandal on 12.8.2005 and accordingly she was subjected to the physical efficiency test again and she was declared to have passed the test. This is evidenced by Ext.P9 notice. Since no further action in the matter was taken, the petitioner approached this court after filing Ext.P10 representation. 3. Respondents 1 to 3 have filed detailed counter affidavit in the matter. The various steps taken by the respondents in the matter have been detailed in the counter affidavit, especially regarding the test undertaken by the petitioner pursuant to Ext.P9. It is stated in para 10 of the counter affidavit that as stipulated in Ext.P9, recruitment process was conducted at CISF Unit, FACT, Udyogamandal with effect from 24.8.2005 to 26.8.2005. The petitioner had accordingly attended the recruitment process on 26.8.2005 and was found suitable for appointment to the post of “Cook.” In the meanwhile, IG/SS Headquarters Chennai, intimated that no vacancy exists for appointment of the petitioner on compassionate grounds in a group ‘D’ post even though she was eligible for appointment as group ‘D’. Ext.R4 is the reply given to her in the matter. In Ext.R4, it is further wpc 5285/2006 3 informed that she can appear for the compassionate appointment in the subsequent chances also. 4. Pursuant to the directions issued by this court, the respondents have filed another affidavit on 9.3.2009 stating the following facts: “It is also submitted that the petitioner attended the recruitment test at the following places: 1. 23/02/2004 at HPCL, Mumbai - Failed in PET 2. 21/11/2007 at CHPT, Chennai - Absent 3. 31/12/2008 at CHPT, Chennai - Failed in PET. Even though she attended the recruitment test at FACT, Udyogamandal on 26.8.2005, her case could not be considered due to non-availability of vacancy. It is also submitted that in terms of CISF Circular No.5/2008/R&S dated 14/3/2008 she has availed of only two chances including the chance availed on 31.12.2008. the petitioner belongs to general category and she is eligible to be considered for three chances. Hence she will be given one more chance to participate in the recruitment test and will be appointed, if otherwise eligible according to the Rules. The copy of CISF Circular No.5/2008/R&S dated 14.3.2008 is produced herewith and marked as Ext.R3(D).” It is clear from the averments contained therein that on the last occasion, viz. on 26.8.2005 when the test was conducted at FACT, Udyogamandal, she had passed the eligibility test, but only for want of vacancy, she could wpc 5285/2006 4 not be appointed. It is stated that she will be given one more chance to participate in the recruitment and will be appointed if otherwise eligible. 5. Learned counsel for the petitioner submitted that since the appointment sought for only under the dying in harness scheme and that too against a Group D post, she may not be subjected to physical eligibility test as she had already passed the said test on 26.8.2005. Apart from that, a person like the petitioner who is seeking an employment under the scheme for appointment to dependents dying in harness, need not be subjected to physical tests again and again like general category candidates who are competing for appointment for various categories in group D. Such an exercise may be required only in those cases where a direct recruitment is being made from among the general category candidates and others and to eliminate candidates who fail the test. Therefore, the elimination process require a test therein as the number of candidates will be very high. As far as this case is concerned, she is seeking for appointment only in a group D post and therefore again and again she need not satisfy the physical eligibility test. Only for want of vacancy she could not be appointed last time ad she had passed all tests. She was considered for appointment as Cook. 6. Therefore, the petitioner’s claim will be reconsidered and as wpc 5285/2006 5 agreed to in the affidavit filed on 9.3.2009 and she will be given adequate notice in the matter. Since the petitioner is residing in Trivandrum, she will be allowed to appear in any nearby station along with the required documents. Appropriate action shall be taken within a period of two months from the date of receipt of a copy of this judgment. The circumstances under which the petitioner is living, have not been denied in the counter affidavit. She was depending upon her husband for livelihood. Now she finds it very difficult to pull on in the absence of a regular appointment. The plight of the petitioner also will be borne in mind and an appointment will be given after considering the case in the light of the findings rendered herein. If regular vacancies are not there, appointment can be given by creating a supernumerary post, which could be adjusted as and when a regular vacancy arises. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/