PRAYER: Petition filed under Article 226 of the Constitution of India praying for an issuance of a Writ of Certiorari calling for the records relating to the order of the Hon'ble Central Administrative Tribunal, Chennai Bench passed in the O.A.No.1016 of 2009 dated 15.03.2010 and quash the same.
ORDER
M.VENUGOPAL,J.
1. The Petitioners/Respondents have focussed the present Writ Petition as against the order dated 15.03.2010 in O.A.No.1016 of 2009 passed by the Central Administrative Tribunal, Madras Bench.
2. The Central Administrative Tribunal, Madras, while passing the common orders in O.A.No.1016 of 2009 and O.A.No.16 of 2009 on 15.03.2009, in paragraph 10, has, inter alia observed that 'the case of the applicant in both the applications have been considered by the Respondents and rejected as per the Memo dated 05.05.2003 which provides for a time limit of three years from the date of death of an employee, after three years if compassionate appointment is not possible to be offered, his/her case will be finally closed and will not be considered etc. and also opined that even though the Respondents have acted in accordance with the rules and statutory instructions, considering the fact that the delay has occurred for want of vacancies within the ceiling of 5% for compassionate ground appointments and not on the fault of the applicants, their case may be reconsidered once again in the next available vacancies in any Group 'C' or 'D' posts and disposed of the applications.'
The Original Application Facts:
3. The case of the Respondent/Applicant [in O.A.No.1016 of 2009 before the Central Administrative Tribunal, Madras] is that she is the eldest daughter of one Nagaraj, who served as a Driver to the Commissioner of Central Excise Division-III. Due to heart attack, her father expired all of a sudden on 01.02.2005, while in service, at 52 years of age, leaving behind his heirs viz., his wife, two male children (twins) and two female children (twins). On the date of his death, all his children have been studying and even as on date two male children are studying at Sriperumbudur. The family has to incur an expense of atleast Rs.1,000/- for every month for both the sons. The deceased children have studied only by availing educational loan from the Bank.
4. According to the Respondent/Applicant, they have been staying in the Income Tax Quarters at Nungambakkam High Road with the fine hope that any one of the family members of the deceased father would be provided with a compassionate appointment. Their financial condition is very poor and they are not even able to pay the rent for the quarters. The applicant's mother viz., N.Gowri, submitted an application dated 16.02.2005 praying for the compassionate appointment of the Respondent/Applicant as she is qualified with B.A. and M.A. Degree in English Literature and further that she belongs to schedule caste community. Moreover, she is aged about 27 years.
5. The Joint Commissioner (P&V) has informed the Respondent/ Applicant's mother [to the representations made by her mother dated 16.02.2005 and also 20.04.2005] through his letter dated 16.092005/ 29.12.2005 that there is no vacancy available for providing compassionate appointment and 5% of the Direct Recruitment Vacancies alone have been earmarked for the compassionate appointment.
6. The Joint Commissioner (P&V) has furnished the aforesaid reply only after the Respondent/Applicant's mother's representation dated 25.10.2005 addressed to the National Commissioner for Scheduled Castes. But, in reply to the Memo from the Commissioner for Scheduled Caste dated 21.11.2005, the Joint Commissioner (P&V) has issued a reply to the Deputy Director for National Commission for Scheduled Castes and in para 4 of the said reply, it has been mentioned that only 22 vacancies have arisen in the grade of Tax Assistant for the year 2004-2005 and out of that 5% of 22 vacancies have been meant for Compassionate Appointment and that while filing up those vacancies, her case also will be considered and there is no vacancy in the grade of stenographer for compassionate appointment.
7. Furthermore, it is also mentioned in the reply that the Respondent/Applicant's request for appointment to the post of Inspector cannot be acceded to as there is no provision for compassionate appointment to the post of Inspector.
8. The Respondent/Applicant has made a representation to the Government of India and the Hon'ble Prime Minister and in reply, a letter dated 08.05.2006 has been issued to the Chief Commissioner of Central Excise, Chennai requesting him to look into the grievances of her mother. The Respondent/Applicant has in the meanwhile crossed 26 years. Also, she is to be married to a good person shortly.
9. As such, the Respondent/Applicant's mother projected a representation praying for the compassionate appointment to her second daughter viz., Lakshmi Priya and no reply has been issued to the said representation. She made a representation dated 19.03.2006 under the Right to Information Act, 2005 and even for that no reply has been sent. Finally, she has written a letter dated 19.03.2006 to the Hon'ble Prime Minister's Office and after receipt of letter from the Prime Minister's office, the Additional Commissioner/Central Public Information Officer, Chennai has informed the applicant that there is no vacancy available for compassionate appointment and that the compassionate appointment given to one S.Kavitha, wife of Senthilkumar, Inspector is to the post of Stenographer III and that has been given only after conducting the test. At that point of time, the Respondent/Applicant's father has been alive. Subsequently, there is no vacancy in that post.
10. The Respondent/Applicant's mother again made a further representation dated 14.03.2007 to the Additional Commissioner (CCO), Central Public Information Officer requesting him to provide compassionate appointment to her second daughter viz., the sister of the Respondent/Applicant. But, the Respondent/Applicant's mother received a reply dated 10.04.2007 stating that she should file an appeal to the Chief Commissioner of the Central Excise, Chennai, who being the Appellate Authority, under the Right to Information Act, 2005. Therefore, an appeal dated 10.07.2007 has been made to the Chief Commissioner of Central Excise, Chennai and in reply to that the Chief Commissioner passed an order dated 10.08.2007 rejecting her appeal as devoid of merit. The Respondent/Applicant's mother has also been advised that the Commissioner has no jurisdiction to redress the grievances related to service matters. Therefore, she has filed the application O.A.No.1016 of 2009 before the Central Administrative Tribunal praying to call for the records on the file of the Respondents 1, 2 and 3 in regard to the orders passed in Proc.C.No.II/39/50/2007-CZO(Admn) dated 10.08.2007 and C.No.11/31/3/2005-CCA ESTT dated 16.09.2005/29.12.2005 and also C.No.11/31/3/2005-Estt CCA dated 04.01.2006 and C.No.II/39/77/2006 - CZO (Admn) dated 12.01.2007 and C.No.11/31/3/2005-CCA.Estt dated 20.08.2009 respectively and quash the same. Further, the Respondent/Applicant has also sought for issuance of a direction from the Tribunal to the Respondents to provide compassionate appointment to her forthwith.
11. The Original Application No.36 of 2008 filed by the Respondent/Applicant earlier before the Central Administrative Tribunal, Madras has been disposed of on 08.06.2009 with the following directions:
"6.As per the existing instructions an application for appointment under compassionate grounds can be kept alive for the Government servant. In this case, the applicant's father died on 1.2.05. The reply statement filed by the respondents mentions about the vacancies in only one post viz., Tax Assistant that too for the years 2002-03, 2003-04, 2004-05 & 2005-06 only. As per these instructions, the applicant's case should have been considered for vacancies which arose during 2006-07 & 2007-08 in any post in Group 'C' and 'D' categories.
7. In the light of the above discussion, the respondents are directed to consider the applicant's request for compassionate appointment in the next available vacancy under the Scheme in any Group-C or D posts keeping in view the relevant instructions quoted above. Respondents are further directed to pass orders in this case within a period of two months from the date of receipt of a copy of this order.
8. The applicant has also made a plea for retention of quarters occupied by the family of the deceased employee. This Tribunal in its order dated 4.2.08 has granted stay against vacating the family from the quarters. This interim order is extended till final orders are passed by the respondents in this matter."
12.The categorical plea of the Respondent/Applicant is her case ought to have been considered for vacancies which has arisen during 2006-2007 and in 2007-2008 in any post in Group 'C' and 'D' category. But the Additional Commissioner/3rd Respondent [in the Original Application] has rejected her claim for compassionate appointment on the basis that she could not be appointed after the expiry of three years on 31.01.2008 from the date of death of her father.
Common Reply Pleas of the Writ Petitioners/Respondents:
13. In reply to the National Commission for Scheduled Castes letter No.N-6/Fin-13/05/SSW-III dated 21.11.2005, this office vide letter C.No.II/31/3/ 2005-Esst.CCA dated 04.01.2006, the Petitioners/Respondents have stated that for the year 2004-2005, 22 vacancies have been arising in the grade of Tax Assistant which has to be cleared by the Screening Committee of the Ministry and then 5% of the cleared direct recruitment vacancies will be earmarked for compassionate appointment. Further, the Ministry vide letter F.No.8/ 48B/DOPM/2004 Part III dated 08.05.2006 conveyed the clearance of the Screening Committee for the years 2002-2003, 2003-2004, 2004-2005 and 2005-2006 in the grade of Tax Assistant wherein only 3 posts have been cleared for direct recruitment for those years. 5% of the 3 posts will not work out even one vacancy. Moreover, as per existing instructions, compassionate appointment cannot be made in the grade of Inspector of Central Excise.
14. Also, in the common reply of the Petitioners/Respondents, it is further averred that by means of Office Letter C.No.01.06.2006 Smt.N.Gowri has been informed of the existing status as regard the compassionate appointment. Also, the Office has sent a letter C.No.II /31/3/2005-CCA.Estt. dated 01.06.2006 Smt.N.Gowri explaining in detail that there has been no discrimination or whatsoever in regard to the selection of Smt.S.Kavitha for appointment to the grade of Stenographer Grade-III on compassionate grounds etc. Also, it has been informed to her that during 2003-2004 two vacancies have been available in the grade of Stenographer Grade-III for filling up by compassionate appointment. A stenography test has been conducted for all the applicants for compassionate appointment wherein Smt.S.Kavitha W/o.late Senthil Kumar, Inspector passed the test and has been offered with the appointment during September 2004.
15. The main plea taken by the Petitioners/Respondents is that the policy of compassionate appointments can be made upto a maximum of 5% of vacancies falling under direct recruitment quota in any Group 'C' or 'D' post is framed by Department of Personnel & Training (DOP&T), Ministry of Personnel, Pension and Public Grievances, New Delhi. The policy framed by the DOP&T covers all the departments under the Union of India including Ministry of Finance.
16. As per Order of Central Administrative Tribunal, Madras Bench dated 08.06.2009 in O.A.No.36 of 2008, the vacancy position for the period 2005-2006, 2006-2007 and 2007-2008 has been reviewed and it has been found that there is no vacancy for compassionate appointment during the material period in either Group 'C' or Group 'D' posts during the years 2005-2006 and 2006-2007. During the year 2007-2008, three vacancies in the grade of Sepoy (Group D post) and two vacancies in the grade of Tax Assistant (Group C post) have been earmarked for the purpose of making compassionate appointment.
17. The Committee constituted as per DOP&T's instructions viz., Official Memorandum.No.14014/6/94 dated 09.10.1998 after scrutinicing all the pending applications against the vacancies for the year 2007-2008 shortlisted 12 applications including the applicant. The Committee conducted a detailed independent inquiry on the 12 shortlisted applications by deputing three Superintendents of Central Excise to ascertain the present financial condition of the family of the deceased. After thorough examination of the details of the report, five most deserving candidates have been recommended by the Committee for appointment on compassionate grounds [3 for Sepoy post and 2 for Tax Assistant post]. The remaining 7 applications including that of the applicant could not be offered with the appointment of compassionate ground as there has been no further vacancy during the period. The above particulars have been communicated in detail to the applicant as per Office letter C.No.II/31/3/2005-CCA. Esst. Dated 20.08.2009.
18. The Petitioners/Respondents, by placing reliance on O.M.No.14014/19/2002-Estt. (D) dated 05.05.2003 of the Department of Personnel and Training (DOP&T), Ministry of Personnel and Public Grievances, New Delhi, take a plea that a maximum time limit of three years [in regard to the date of death of Government servant] for consideration of applications for compassionate appointment in relaxation of its earlier O.M.No.14014/23/99-Estt.(D) dated 03.12.1999 wherein the maximum time limit has been fixed as 'one year'. That apart, the Respondent/Applicant could not be offered with the compassionate appointment due to non availability of vacancies.
19. The Learned Counsel for the Petitioners/Respondents urges before this Court that the Central Administrative Tribunal failed to appreciate the Chief Commissioner's order dated 20.08.2009 wherein it is, among other things, mentioned that the Respondent/Applicant's application has been considered as per guidelines specified in DOP&T O.M.No.14014/6/94-Estt.(D) dated 09.10.1998, O.M.No.14014/23/99-Estt(D) dated 03.12.1999 and O.M.No.14014/19/2002-Estt.(D) dated 05.05.2003 and that there is no vacancy for providing compassionate appointment in any of the Group 'C' or Group 'D' posts during 2005-2006 and 2006-2007 etc.
20. It is the submission of the Learned Counsel for the Petitioners /Respondents that the Respondent/Applicant's case has been considered against additional posts sanctioned by the Ministry in Group 'D' and in various Group 'C' posts for compassionate appointment in 2007-2008 and that the application of the Respondent and later filed for her sister has been found to be not fit for selection on compassionate ground for the reasons assigned in detail and that the application of the Respondent [later filed for her sister] has been treated as closed in terms of the instructions contained in DOP&T O.M.No.14014/19/2002-Estt.(D) dated 05.05.2003 on completion of the maximum prescribed time-limit of three years on 31.01.2008 reckoned from the date of death of P.Nagarajan on 01.02.2005. Notwithstanding the fact that O.M.No.14014/19/2002-Estt.(D) dated 05.05.2003 issued by the DOP&T enjoins that an individual's name can be kept for consideration in order to provide compassionate appointments for the maximum period of three years [to be calculated from the demise of an employee]. It is clear that the delay has occasioned for want of vacancies within the ceiling of 5% for appointments made on compassionate grounds.
21. Advancing his arguments, the Learned Counsel for the Petitioners/Respondents submits that the Tribunal has failed to follow the decisions of the Hon'ble Supreme Court in Himachal Road Transport Corporation V. Dinesh Kumar (JT 1996 (5) SC 319) and Hindustan Aeronautics Limited V. Smt.A.Radhika Thirumalai (1996 (9) SC 197) to the effect that appointment on compassionate grounds can be made only if the vacancies available for that purpose.
22. Proceeding further, the Learned Counsel for the Petitioners/ Respondents relied on the Division Bench orders of this Court dated 24.06.2009 in W.P.No.19708 of 2006 in the case of M.Muthuvijayan V. Union of India and three others, wherein it is held as follows:
"... 5.It is seen that the case of the petitioner for compassionate appointment was considered and rejected on the ground that as per the memo dated 05.05.2003, if the petitioner is not considered within a period of three years from the date of death of the employee, after three years if compassionate appointment is not possible to be offered to the petitioner, his case will be finally closed and will not be considered. .......... So long as the memo is in force, the Respondents have to apply the same and the cases exceed three years cannot be considered."
23. Lastly, it is the submission of the Learned Counsel for the Petitioners/Respondents that the Respondent/Applicant cannot be offered with the compassionate appointment since there have been no vacancies in Group 'C' and 'D' posts under that quota during the three years periods, which is reckoned from the date of death of the Government servant and if after three years, if appointment could not be offered, the claim for compassionate appointment would be finally closed.
24. Admittedly, the Respondent/Applicant filed O.A.No.36 of 2008 before the Central Administrative Tribunal and on 08.06.2009, the following order has been passed:
"As per the existing instructions, an application for appointment under compassionate grounds can be kept alive for consideration for a period of three years from the date of death of the Government servant. In this case, the applicant's father died on 1.2.2005. The reply statement filed by the respondents mentions about the vacancies in only one post viz. Tax Assistant that too for the years 2002-03, 2003-04, 2004-05 & 2005-06 only. As per these instructions, the applicant's case should have been considered for vacancies which arose during 2006-07 & 2007-08 in any post in Group 'C' or 'D' categories.
In the light of the above discussion, the respondents are directed to consider the applicant's request for compassionate appointment in the next available vacancy under the Scheme in any Group-C or D posts keeping in view the relevant instructions quoted above. Respondents are further directed to pass orders in this case within a period of two months from the date of receipt of a copy of this order."
25. Based on the aforesaid orders dated 08.06.2009 in O.A.No.36 of 2008 passed by the Central Administrative Tribunal, Chennai, the Additional Commissioner (P&V) of the office of the Chief Commissioner of Central Excise, Chennai has passed an order, in paragraph 4 and 5 to the following effect:
"04.A Committee was constituted as per the DOP&T's O.M.No.14014/6/94 dated 9.10.1998 which had thoroughly scrutinized all the pending applications against the vacancies for the year 2007-08 meant for the purpose of compassionate appointment. After initial screening by the Committee, 12 applications including that of Ms.Lakshmipriya D/o.P.Nagarajan were short-listed. The Committee had also conducted a detailed independent inquiry by deputing 3 Superintendents of Central Excise to ascertain the present financial condition of the family of the deceased. After thorough examination of the details of the report, 5 most deserving candidates were recommended by the Committee for appointment on compassionate grounds. Based on the educational qualification of the 5 applicants, 3 of them were appointed to the post Sepoy (Gr-D) and 2 were appointed to the post of Tax Assistant (Gr-C). The remaining 7 applicants including Ms.Lakshmipriya D/o. P.Nagarajan could not be offered appointment on compassionate ground as no vacancy was available for the year 2007-08 under this quota.
05.Therefore, the application of Ms.No.Lavanya (which was later preferred for the second daughter Ms.N.Lakshmipriya by Smt.N.Gowri w/o.late.P.Nagarajan) was treated closed in terms of the instructions contained in DOP&T O.M.No.14014/19/2002-Estt.(D) dated 5.5.2003 on completion of the maximum prescribed time-limit of 3 years i.e., on 31.01.2008 reckoned from the date of death of Shri.P.Nagarajan on 01.02.2005."
and informed that due to non availability of vacancies during the years 2006-07 and 2007-08, it is not possible to offer appointment on compassionate grounds to the Respondent/Applicant [which was later preferred for the second daughter Ms.N.Lakshmipriya by Smt.N.Gowri w/o.late P.Nagarajan].
26. At this stage, this Court pertinently quotes the DOP&T O.M.No.14014/6/94 dated 09.10.1998 wherein in paragraph 7 it is mentioned hereunder:
"7.DETERMINATION AVAILABILITY OF VACANCIES
(a) Appointment on compassionate ground should be made only on regular basis and that too only if regular vacancies meant for that purpose are available.
(b)Compassionate appointments can be made upto a maximum of 5% of vacancies falling under direct recruitment quota in any Group 'C' or 'D' post. The appointing authority may hold back upto 5% of vacancies in the aforesaid categories to be filled by direct recruitment through Staff Selection Commission or other wise so as to fill such vacancies by appointment on compassionate grounds. A person selected for appointment on compassionate ground should be adjusted in the recruitment roster against the appropriate category viz. SC/STOBC/ General depending up on the category to which he belongs. For example, if he belongs to SC category he will be adjusted against the SC reservation point if he is ST/OBC he will be adjusted against ST/OBC point and if he belong to General category he will be adjusted against the vacancy point meant for General category.
(c) While the ceiling of 5% for making compassionate appointment against regular vacancies should not be circumvented by making appointment of dependent family member of Government servant on casual/daily wage/ad-hoc/contract basis against regular vacancies there is no bar to considering him for such appointment if he is eligible as per the normal rules/orders governing such appointments.
(d) The ceiling of 5% of direct recruitment vacancies for making compassionate appointment should not be exceeded by utilising any other vacancy e.g. Sports quota vacancy.
(e)Employment under the scheme is not confined to the Ministry/ Department/ Office in which deceased/medically retired Government servant had been working such an appointment can be given anywhere under the Government of India depending upon availability of a suitable vacancy meant for the purpose of compassionate appointment.
(f)If sufficient vacancies are not available in any particular office to accommodate the persons in the waiting list for compassionate appointment, it is open to the administrative Ministry/ department/ Office to take up the matter with other Ministries/Departments/Offices of the Government of India to provide at an early date appointment on compassionate ground to those in the waiting list."
27. It is to be pointed out that the Hon'ble Supreme Court in Smt.Sushma Gosain and others V. Union of India and others, [AIR 1989 Supreme Court 1976] wherein , in paragraphs 8 to 10, it is laid down as follows:
"8. We heard counsel on both sides and gave our anxious consideration to the problem presented. It seems to us that the High Court has made the order in a mechanical way and if we may say so, the order lacks the sense of justice. Sushma Gosain made an application for appointment as Lower Division Clerk as far back in November 1982. She had then a right to have her case considered for appointment on compassionate ground under the aforesaid government memorandum. In 1983, she passed the trade test and the interview conducted by the DGBR. There is absolutely no reason to make her to wait till 1985 when the ban on appointment of ladies was imposed. The denial of appointment is patently arbitrary and cannot be supported in any view of the matter.
9. We consider that it must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant.
10. In the result, we allow the appeal and in reversal of the order of the High Court, we direct respondent 2 to appoint Sushma Gosain appellant 1 in the post to which she has already qualified. We further direct that she shall be appointed in an appropriate place in Delhi itself. The appointment shall be made within three weeks from today."
28. Also, this Court worth recalls the decision of the Hon'ble Supreme Court in State of Haryana V. Naresh Kumar Bali [(1994) 4 Supreme Court Cases 448] has observed as follows:
"What the High Court failed to note is the post of an Inspector is a promotional post. The issuing of a direction to appoint the respondent within three months when direct recruitment is not available, is unsupportable. The High Court could have merely directed consideration of the claim of the respondent in accordance with the rules. It cannot direct appointment. Such a direction does not fall within the scope of mandamus. Judicial review, it has been repeatedly emphasised, is directed against the decision-making process and not against the decision itself; and it is no part of the court's duty to exercise the power of the authorities itself. The exercise of the extraordinary jurisdiction constitutionally conferred on the Apex Court under Article 142(1) of the Constitution can be of no guidance on the scope of Article 226."
29. In Balbir Kaur and another V. Steel Authority of India Limited and others, [AIR 2000 Supreme Court 1596 at page 1597], the Hon'ble Supreme Court has observed thus:
"Moreover compassionate appointment cannot be refused since the Tripartite Agreement expressly preserves the earlier circular to the effect that any benefit conferred by hte earlier circular shall continue to be effective and the earlier rules as a matter of fact were not prohibitive of such compassionate appointments but lend affirmation to such appointments."
30. In the instant case on hand, the Respondent/Applicant's father Nagarajan expired on 01.02.2005. In the reply statement filed by the Petitioners/Respondents (Department), there is reference in regard to the vacancy in only one post viz., Tax Assistant for the years 2002-03, 2003-04, 2004-05 2005-06. As per the existing instructions, the Tribunal opined in O.A.No.36 of 2008 on 08.06.2009 that the Respondent/Applicant's case ought to have been considered for vacancies which has arisen during 2006-2007 and 2007-2008 in any post in Group 'C' or 'D' categories and directed to consider the Respondent/Applicant's request for compassionate appointment in the next available vacancy under the Scheme in any Group 'C' or 'D' posts bearing in mind the relevant instructions.
31. It is to be noted that ordinarily an employment in public service as a rule can be made based on open competition and merit. Any other method will defeat Article 14 and 16 of the Constitution. To this general rule, there are few exceptions, with a view to meet the need and necessity of the state ideals/perceptions. As a matter of fact, the discernible orders passed by the Executive Authorities provided for a scheme to make compassionate appointment for the children of the deceased employees or disabled public servants, where death occurs in harness or disability arises during service. The instructions on compassionate appointments are therefore 1) An exceptional emergency clause; 2)To relieve the family of the concerned Government servant/employee from penury. No doubt, the appointment on compassionate ground is not a method of recruitment. However, it is a facility to provide for minimum rehabilitation to the family in distress, which is deprived of a potential breadwinner.
32. The main reason for providing appointment on compassionate ground by passing the regular procedure of recruitment through open competition and selection method is that an individual appointee will maintain those who are the dependants in the family of the deceased employee. Indeed, the policy of providing compassionate appointment is to grant minimum relief to the family of the deceased employee to save it from destitution. However, in law a compassionate appointment cannot be made, if there are no available vacancies. Moreover, a Court of Law cannot be swayed away by sympathetic considerations.
33. In this connection, this Court makes a significant reference to the reply dated 20.08.2009 of Additional Commissioner of Central Excise, Chennai (P&V) addressed to the Respondent/Applicant, in concluding paragraph 4 and 5, wherein it is mentioned thus:
".... Based on the educational qualification of the 5 applicants, 3 of them were appointed to the post Sepoy (Gr-D) and 2 were appointed to the post of Tax Assistant (Gr-C). The remaining 7 applicants including Ms.Lakshmipriya D/o.P.Nagarajan could not be offered appointment on compassionate ground as no vacancy was available for the year 2007-08 under this quota.
05. Therefore, the application of Ms.No.Lavanya (which was later preferred for the second daughter Ms.N.Lakshmipriya by Smt.N.Gowri w/o.late.P.Nagarajan) was treated closed in terms of the instructions contained in DOP&T O.M.No.14014/19/2002-Estt.(D) dated 5.5.2003 on completion of the maximum prescribed time-limit of 3 years i.e., on 31.01.2008 reckoned from the date of death of Shri.P.Nagarajan on 01.02.2005."
34. The entire File in C.No.II/31/3/2005 on the subject 'Application for Compassionate Appointment in respect of Kum.LAVANYA (LAKSHMI PRIYA), D/o. Late Shri P.NAGARAJAN, DRIVER Gr.I, CHENNAI III COMM. and the File C.No.II/39/30/2007-CCA Estt. of the Office of the Chief Commissioner of Central Excise, Chennai and Cadre Controlling Authority for T.N. & Puducherry on the subject 'Review OP Applications for Compassionate Appointment produced by the Learned Counsel appearing for the Petitioners/ Respondents have been perused by this Court.
35. On going through the entire records, we opine that the Petitioners/Respondents have adhered to the rules and periodical statutory instructions in letter and spirit. It cannot be gainsaid that the Respondent/Applicant admittedly has not challenged the memo O.M.No.14014/19/2002-Estt.(D) dated 05.05.2003. As long as the said memo is alive, the Petitioners/Respondents are to follow the same. By so following, the cases that which go beyond three years period automatically cannot be taken into consideration at all, in our considered opinion. Therefore, we, on an overall assessment of the entire conspectus of the facts and circumstances of the present case in an integral fashion, come to an inescapable conclusion that the Petitioners/Respondents have rightly rejected the application of the Respondent/Applicant as per memo dated 05.05.2003. However, we are not in agreement with the contra view taken by the Central Administrative Tribunal, Chennai that even though the Respondents (Petitioners) have acted in accordance with the rules and statutory instructions, considering the fact that the delay has occurred for want of vacancies within the ceiling of 5% for compassionate ground appointments and not on the fault of the Applicant and the said decision is clearly unsustainable in the eye of law. Consequently, we set aside the order passed by the Central Administrative Tribunal, Chennai dated 15.03.2010 in O.A.No.1016 of 2009. Resultantly, the Writ Petition succeeds.
In the result, the Writ Petition is allowed, leaving the parties to bear their own costs. Consequently, connected miscellaneous petition is closed.