Dismissed

V.Prajith v. Chief Commissioner of Central Tax and Customs

Kerala HC28 Mar 2022OP (CAT)/53/2021

Case brief

AI extract

What is this about?

This writ petition challenged a Central Administrative Tribunal order dismissing the petitioner's claim for compassionate appointment. The High Court examined vacancy computations and merit rankings, concluding the petitioner could not be appointed due to low merit relative to available vacancies, and dismissed the petition.

What did the court decide?

The original petition filed under Articles 226 & 227 of the Constitution was dismissed, upholding the impugned Tribunal order.

V.Prajith Vs Chief Commissioner of Central… — Pension and Retirement Benefits | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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THE HONOURABLE MR.JUSTICE VIJU ABRAHAM

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MONDAY, THE 28^TH DAY OF MARCH 2022 / 7TH CHAITHRA, 1944 OP (CAT) NO. 53 OF 2021

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AGAINST THE ORDER/JUDGMENT IN OA 680/2019 OF CENTRAL

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ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH

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PETITIONER/S:

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V.PRAJITH AGED 38 YEARS S/O LATE KORUKUTTY, THEJUS HOUSE, THAMARAKUZHI, MALAPPURAM DISTICT-676 505.

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BY ADVS. C.S.GOPALAKRISHNAN NAIR RASHMI K.R.

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RESPONDENT/S:

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1 CHIEF COMMISSIONER OF CENTRAL TAX AND CUSTOMS CENTRAL REVENUE BUILDINGS, I.S. PRESS ROAD, COCHIN-682 018. 2 PRINCIPAL COMMISSIONER OF CENTRAL TAX & CUSTOMS, CENTRAL REVENUE BUILDINGS, I.S.PRESS ROAD, COCHIN-682 018. 3 UNION OF INDIA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, MINISRY OF FIANCE, NORTH BOCK, NEW DELHI-110 001. BY ADVS. SHRI.P.VIJAYAKUMAR, ASG OF INDIA S.MANU

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SRI.S.MANU, ASGI

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THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 28.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP (CAT) NO. 53 OF 2021

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ALEXANDER THOMAS & VIJU ABRAHAM, JJ.

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===================================

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OP(CAT) 53/2021

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(arising out of the impugned final order dated 12.07.2021 in OA No.680/2019 on the file of CAT, EKM Bench) ========================================= Dated this this the 28^th day of March, 2022

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J U D G M E N T

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The final verdict of the Tribunal rendered on 12.07.2021 in the instant Original Application, OA No.680/2019 by the Central Administrative Tribunal, Ernakulam Bench is under challenge in the present original petition filed under Articles 226 & 227 of the Constitution of India. The abovesaid final verdict of the Tribunal has been produced as Ext.P10 in this OP. The sole petitioner in this OP is the sole applicant in the OA. The respondents in the OP are the respondents in the OA.

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Heard Sri.C.S.Gopalakrishnan Nair, learned Counsel appearing for the petitioner in the OP/applicant in the OA and Sri. S.Manu, learned Assistant Solicitor General of India, appearing for the respondents in the OP/respondents in the OA.

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Bereft of unnecessary details, the core factual aspects of this case to the extent it is relevant to the present OP is as follows:

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The petitioner in this OP will be referred for convenience as the Original Applicant/Applicant. The present Original Applicant, Sri.V.Prajith

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OP (CAT) NO. 53 OF 2021

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and certain other applicants had filed various OA s before the Tribunal, being aggrieved by the rejection of their claims for compassionate appointments under the respondent Union Government authorities. This resulted in Annexure A12 common final order dated 08.11.2017 rendered by the Central Administrative Tribunal, Ernakulam Bench in OA No.382/2015 filed by the present applicant, and certain other original applications filed as OA No.283/2016, OA No.380/2017, OA No.631/2017 and OA No.658/2017 etc. In Annexure A12 verdict, the Tribunal held that the nonconsideration of the applicants and certain other candidates included in the list prepared by the respondent Union Government Authorities, for compassionate appointment is illegal and that the applicants therein and the other candidates included in the shortlist to the post of Tax Assistant and Havildars, should be given appointment in the compassionate appointment quota. Being aggrieved by Annexure A12 verdict, the Union Government authorities have preferred Original Petition before this Court which resulted in Annexure A15 common judgment dated 13.08.2018 rendered by the Division Bench of this Court in OP(CAT) No.125/2018 (which arose out of OA NO.382/2015 filed by the present applicant) and OP(CAT) Nos. 107 and 124 of 2018. After elaborate consideration of rival pleas, the Division Bench of this Court had reached the considered conclusion that the list prepared by the Union Government Authorities for consideration of compassionate appointments in the categories of post like

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Tax Assistant, Havildar etc was only a short list and not a final selection list. Further that, only 11 vacancies are available in the compassionate appointment quota, which is inclusive of two vacancies set apart in the post of Tax Assistant and 9 vacancies set apart in the post of Havildar. Further that the recommendation for short listing process done by the respondent authorities was that 2 best candidates out of the 4 included in the shortlist may be considered for appointment to the post of Tax Assistant and 9 best candidates out of the 15 candidates included in the shortlist for the post of Havildar may be considered for the said post etc. Hence, the Division Bench was fully convinced that the directions issued by the Tribunal at Annexure A12 that all the candidates including the Original Applicant included in the shortlist for the above said post should be given appointment in the compassionate appointment quota was legally wrong and that the shortlisting process was only preparation of a field of choice from among which the competent authority had to select two best candidates out of the four candidates for the post of Tax Assistant and nine best candidates out of the fifteen candidates included in the shortlist for Havildar to be appointed for the said post etc. However, the learned Additional SGI appearing for the petitioners in this OP, Union Government Authorities submitted that the Original Applicants, whose case has been rejected for appointment to the limited number of posts, could be considered for compassionate appointment in the future vacancies and without subjecting them to any

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further tests including the physical verification tests for Havildar etc, as they have already undergone the said screening process. In the light of the said submission made on behalf of the Union Government Authorities, the Division Bench of this Court has rendered Annexure A15 common judgment dated 13.08.2018 in OP(CAT) No.107, 124, 125 of 2018, whereby the impugned verdict of the Tribunal at Annexure A12 was set aside and the Union Government Authorities were directed to consider the rejected Original Applicants, for appointment to the compassionate quota in the future vacancies and in accordance with the norms. It is thereafter that the Union Government Authorities has convened the meeting of the Selection Committee for compassionate appointment on 24.10.2018, as against such future vacancies and therein, the cases of the rejected Original Applicants including the present Original Applicant have been considered. The selection committee found that the number of vacancies allotted in the compassionate appointment quota for the said relevant period of consideration was one post of Tax Assistant, four posts of Havildar and one post of Canteen Attendant and one post of Stenographer (Grade II). According to the respondent authorities, they have considered the cases of all eligible candidates, for the said future vacancies as ordered in Annexure A15 judgment of this Court, including the Original Applicants, and the merit of each of the claimants were assessed in terms of the norms issued by the Union Government for assessing their merit, and that norms were revised

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whereby, 15 marks were given as grace mark, where the applicant is a widow of the deceased employee in line with the general principle that the widow is to be given preference for compassionate appointment. According to the respondents, they have considered the claims of the Original Applicant and all other eligible candidates for the relevant period in question in the Selection Committee meeting held on 24.10.2018 which led to Annexure A17. According to the respondents, they have selected one candidate as against the one post of Tax Assistant and four candidates as against the four posts of Havildar and also one candidate for the post of Canteen Attendant as against one post and one candidate as against one post of Stenographer (Grade II). That, going by the ranking given to the Original Applicant based on the norms, he came much lower in the merit claims and hence he could not be given appointment in the compassionate appointment quota, as against the limited number of vacancies available.

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The specific contention raised by the Original Applicant before the Tribunal was that the computation of vacancies for the present relevant period in question, in the meeting held on 24.10.2018, was totally wrong. According to the Original Applicant, the vacancies in the compassionate appointment quota is to be computed as 5% of the vacancies arising in the direct recruitment quota in the recruitment year concerned and that such vacancies should be necessarily be computed as on 01^st day of January of the

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selection year concerned. The specific case in that regard set up by the Original Applicant is that going by the said formula, as laid down in the relevant office memorandum issued by the Government of India, there are actually 19 vacancies in the post of Havildar and 7 vacancies in the post of Tax Assistant and that if such additional vacancies have been duly taken note of on the basis of the norms issued by the Union Government, then the applicant would have succeeded etc. Two affidavits have been filed by the respondents in this case.

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It is specifically pleaded in paragraph no.11 of the first affidavit dated 23.11.2021 filed by the respondents in this OP that only one vacancy could be set apart for Tax Assistant and that the number of vacancies that have been set apart in the compassionate appointment quota, are one post each in the categories of Tax Assistant, Stenographer (Grade II) and Canteen Attendant and four posts in the category of Havildar. Further it is pointed out that the contention of the Original Applicant, appears to be that the 5% of the Direct Recruitment Quota is to be computed on the basis of 5% of the vacancies arising in the Direct Recruitment Quota plus the NJD vacancies arising in the Direct Recruitment Quota for the year concerned. It is urged by Sri.S.Manu, learned Assistant SGI appearing for the respondents that the said plea taken up by the petitioner is totally untenable and that compassionate appointment is the exception to the general rule of selection based on open competition and

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that the 5% of vacancies arising in the Direct Recruitment Quota of each recruitment year has to be computed and further that the non-joining of duty vacancies arising in the Direct Recruitment Quota cannot be taken into account for computing the abovesaid 5%. That the respondent authorities have meticulously computed the compassionate appointment vacancies for the relevant year as above. Further in the abovesaid, we have to note that the respondents have stated in paragraph 12 of the first affidavit that the norms for determining the merit of the applicants in the Compassionate Recruitment Quota has been on the basis of the following parameters.

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a) Family Pension (basic excluding DA & Allowances); b) Terminal benefits (DCRG, GPF, CGEGIS, Leave Encashment & Pension Commutation – Computed based on Cost Inflation Index Value as on 2018);

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c) Monthly Income of Earning Members and Income from

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Property; d) Movable/Immovable Property; e) No. of dependents of deceased employee; f) No. of unmarried daughters of the deceased employee; g) No. of minor children of the deceased employee; h) Left over Service of the deceased employee;

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I) Committee decided to award 15 additional points as grace points if the wife of the deceased employee applies for herself, in line with the general principle that the widow needs to appointment; be given preference for compassionate.

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Subsequently we have directed the respondent authorities to

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furnish the merit position of the original applicant in three categories of

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posts for which he was eligible, namely Tax Assistant, Havildar and Canteen Attendant, and also to give the details of the number of candidates ranked on merit above the applicant. It is common ground that the applicant is not eligible for appointment to the post of Stenographer (Grade II) and therefore, we need not get into the details of the said post.

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In compliance with the directions issued by us, the respondents have filed an additional affidavit dated 07.03.2022 in this case and has produced the list prepared in accordance with merit for all the three categories of posts above. In the said materials, a copy of the said affidavit along with those lists have also been given to the Counsel for the petitioner in advance. From a perusal of the said list, we see that the applicant is ranked as Serial No.20 among the various claimants for the post of Tax Assistant. According to the respondents, there is only one post in the Compassionate Appointment Quota as far as the category of Tax Assistant is concerned. Whereas the applicant would contend that seven vacancies will have to be set apart in the Compassionate Appointment Quota for that post. We are told that Serial No.1 of the said list has been given selection and appointment for the post of Tax Assistant. Hence, about 19 more candidates are above the petitioner as far as the post of Tax Assistant is concerned.

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Further we see that for the post of Havildar, the applicant is ranked as Serial No.42 among the various claimants. According to the

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respondents there are only four posts for Havildar, set apart in the Compassionate Appointment Quota and serial nos. 2, 3, 4 & 5 have been given appointment. Serial No.1 has already been given appointment as Tax Assistant. So it can be seen that after excluding the said selected candidates, still there are about 36 more candidates. Serial No.2 of the said list have been given appointment for the post of Stenographer (Grade II). There are only 4 posts in Havildar, whereas the petitioner is ranked as serial no.42, going by the various candidates in that category. So also we see that the applicant is ranked as serial no.42 among the various eligible claimants for the post of Canteen Attendant. Hence on the basis of these materials, we are constrained to conclude that even if the number of vacancies in the Compassionate Recruitment Quota were in the higher side as specifically alleged by the Original Applicant, still there would not have any chance for him to get appointment, for the relevant period in question.

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Faced with this situation, yet another new argument is raised by the learned Counsel appearing for the petitioner that the vacancies in the Compassionate Recruitment Quota will be much higher than seven posts in Tax Assistant and nineteen posts in Havildar etc. Such a factual plea has never been set up by the Original Applicant in the OA, whereas the specific plea put up before the Tribunal as can be seen from a mere reading of the impugned Ext.P10 verdict of the Tribunal is that, according to the Original

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Applicant, seven posts should be set apart for Tax Assistant and nineteen posts should be set apart for Havildar, in the Compassionate Recruitment Quota for the relevant period. Hence we are not in a position to accede to the said new plea set up by the petitioner and that it is for the first time he is before this Court in this OP.

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Yet another plea now put up before us that the respondents should have computed the number of vacancies as 5% of the vacancies arising in the Direct Recruitment Quota as on 1^st of January of the relevant selection year. We do not understand as to how this plea, would in any manner necessarily lead to the conclusion that the number of vacancies assessed by the Department is wrong etc. Even if we assume that the number of vacancies to be set apart for the abovesaid compassionate appointment for the abovesaid post of Tax Assistant and Havildar is seven and nineteen as urged by the applicant, still going by the merit position, the petitioner cannot successfully make any claim in that regard. For all these reasons, we do not find any ground to interfere with the verdict of the Tribunal at Ext.P10, dismissing the OA.

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Sri.S.Manu, learned ASGI appearing for the respondents would submit that as per the governing norms issued by the Union Government, rejected candidates in cases where it is not feasible for the Department to give compassionate appointment to the claimants concerned on the basis of

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the limited number of vacancies for the relevant period and also going by the merit position etc, then the cases of such candidates who could not be given compassionate appointment will be considered for the next selection period along with fresh claimants and based on the norms. We record the abovesaid submission made on behalf of the respondent Union Authorities.

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This Original Petition will stand dismissed.

Sd/-

ALEXANDER THOMAS

JUDGE

Sd/-

VIJU ABRAHAM

JUDGE

Nsd

OP (CAT) NO. 53 OF 2021

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APPENDIX OF OP (CAT) 53/2021

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PETITIONER EXHIBITS

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Exhibit PHOTOCOPY OF ORIGINAL APPLICATION NO 680/2019 P1 ANNEXUR TRUE COPY OF THE OM NO 14014/6/94-ESTT9D0 DATED 9.10.1998 E A1 ANNEXUR TRUE COPY OF APPLICATION DATED 26.3.2007 E A2 ANNEXUR TRUE COPY OF MEMO C.NO 11/3/25/2014 ESTT 54 DATED 8.1.2016 E A3 ANNEXUR TRUE COPY OF THE MEMO C NO 11/3/25/2014 ESTT 54 DATED E A4 15.1.2016 ANNEXUR TRUE COPY OF THE RESULTS OF PHYSICAL ENDURANCE TEST E A5 CONDUCTED ON 18.6.2018 ANNEXUR TRUE COPY OF THE RESULTS OF PHYSICAL ENDURANCE TEST E A6 CONDUCTED ON 15.1.2016 ANNEXUR TRUE COPY OF THE MINUTES E A7 ANNEXUR TRUE COPY OF THE MINUTES DATED 19.11.2014 ES A8 ANNEXUR TRUE COPY OF THE LETTER UNDER RTI ACT E A9 ANNEXUR TRUE COPY OF THE LETTER UNDER RTI ACT REPLY OF ANNEXURE E A10 ANNEXUR TRUE COPY OF THE CHART E A11 ANNEXUR TRUE COPY OF THE ORDER DATED 8.11.2017 IN OA 382/2017 E A12

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ANNEXUR TRUE COPY OF THE LETTER C NO 11/3/7/2016-STT DATED E A13 29.12.2017 ALONG WITH MINUTES DATED 8.11.2017

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ANNEXUR TRUE COPY OF THE COMMON ORDER DATED 5.6.2018 IN MA NO E A14 3/2017 AND 5/2017 ANNEXUR TRUE COPY OF THE COMMON JUDGMENT DATED 13.8.2018 IN E A15 OP(CAT0 NO 125/2018 AND CONNECTED CASES OF HON'BLE HIGH COURT OF KERALA

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ANNEXUR TRUE COPY OF THE MINUTES OF THE M16EETING HELD ON E A16 24.10.2018 ANNEXUR TRUE COPY OF THE MINUTES OF THE METING HELD ON 30.10.2018 E A17 ANNEXUR TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 9.11.2018 E A18 ANNEXUR TRUE COPY OF THE JUDGMENT DATED 23.7.2019 IN CON. CASE NO E A19 60 OF 2019 OF HIGH COURT OF KERALA Exhibit TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS P2 ANNEXUR TRUE COPY OF THE DETAILS OF CALCULATION OF VACANCIES FOR E R1 COMPASSIONATE APPOINTMENT ANNEXUR TRUE COPY OF THE LETTER NO 37-36/2004-SPB-IC DATED E R2 20.1.2010 OF THE DEPARTMENT OF POSTS ANNEXUR TRUE COPY OF THE ORDER DATED 2.9.2014 IN OA NO 1178/2012 E R3 FILED BY SHIR M SUBRAMONIAN HONBLE CENTRAL ADMINISTRATIVE TRIBUNAL MADRAS BENCH AT CHENNAI EXHIBIT TRUE COPY OF THE REJOINDER P3 Exhibit TRUE COPY OF THE ADDITIONAL REPLY STATEMENT P4 ANNEXUR TRUE COPY OF THE ORDER DATED 22.5.2019 IN THE IA 1/2019 IN E R4 THE OP(CAT) NO 125/2018 OF THE HON'BLE HIGH COURT OF KERALA

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ANNEXUR E R5	TRUE COPY OF THE JUDGMENT, DATED 23.7.2019 IN THE CONTEMPT CASE NO 60/2019 16
Exhibit P5	TRUE COPY OF THE 2ND ADDITIONAL REPLY STATEMENT
ANNEXUR E R6	TRUE COPY OF THE ORDER DATED 12.2.2019 OF THIS HON'BLE TRIBUNAL IN CP NO 61/2018
ANNEXUR E R7	TRUE COPY OF THE IA NO 1/2018 FILED BY THE APPLICANT BEFORE THE HON'BLE HIGH COURT OF KERALA
ANNEXUR E R8	TRUE COPY OF THE ORDER DATED 7.12.2018 PASSED IN IA NO 1/2018 BY THE HON'BLE HIGH COURT OF KERALA
ANNEXUR E R9	TRUE COPY OF THE CONTEMPT CASE NO 60/2019 FILED BY THE APPLICANT BEFORE THE HON'BLE HIGH COURT OF KERALA
ANNEXUR E R10	TRUE COPY OF THE IA NO 1/2019 IN OP(CAT NO 125 OF 2018 FILED BY DEPARTMENT BEFORE THE HON'BLE HIGH COURT OF KERALA
ANNEXUR E R11	TRUE COPY OF THE JUDGMENT, DATED 22.5.2019 OF THE HON'BLE HIGH COURT OF KERALA IN THE ABOVE CLASSIFICATORY IA
ANNEXUR E R12	TRUE COPY OF THE JUDGMENT DATED 23.7.2019 OF THE HON'BLE HIGH COURT OF KERALA IN THE ABOVE CONTEMPT CASE NO 60 OF 2019 IN OP9CAT0 NO 125/2018
Exhibit P 6	TRUE COPY OF INTERIM ORDER DATED 6.3.2020
Exhibit P7	TRUE COPY OF THE 3RD ADDITIONAL RELY STATEMENT
ANNEXUR E R13	TRUE COPY OF THE A COMPARATIVE STATEMENT OF APPOINTMENT VIS-A-VIS 5 CANDIDATES WHO WERE APPOINTED ON COMPASSIONATE GROUNDS DURING 2017 AND THAT OF THE APPLICANT
ANENXUR	TRUE COPY OF THE A COMPARATIVE STATEMENT OF APPOINTMENT
E A14	VIS-A-VIS 6 CANDIDATES WHO WERE APPOINTED ON COMPASSIONATE GROUNDS DURING 2018 AND THAT OF THE APPLICANT

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Exhibit TRUE COPY OF THE ARGUMENT NOTE FILED BY THE COUNSEL FOR P8 THE PETITIONER

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Exhibit TRUE COPY OF THE ORDER SHEET DATED 9.3.2021 P9 Exhibit TRUE COPY OF THE ORDER DATED 12.7.2021 IN OA NO 680/2019 P10 RESPONDENT EXHIBITS

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Exhibit TRUE COPY OF FAQS ON COMPASSIONATE APPOINTMENT ISSUED BY R1(a) DOP & T VIDE F.NO.4014/02/2012-ESTT(D) DATED 30/05/2013. Exhibit TRUE COPY OF THE DOPTS OM O.F.NO.14014/02/2012-ESTT(D) R1(b) DATED 16/01/2013.

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Exhibit TRUE COPY OF THE DETAILS OF POINTS AWARDED TO THE R1(c) APPLICANTS.

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Exhibit TRUE COPY OF DETAILS OF VACANCIES FOR COMPASSIONATE QUOTA R1(d) DURING THE FIVE YEARS PRIOR TO THE COMMITTEE HELD ON 22/02/2016 AND 08/03/2016.

V.Prajith v. Chief Commissioner of Central Tax and Customs

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V.Prajith v. Chief Commissioner of Central Tax and Customs

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