The aforesaid directions issued by the High Court have been assailed, through the instant Special Leave Petition.
It was pointed out, that the cadre companytrolling authority had number released any further vacancy of Tax Assistant, which companyld be filled up by direct recruitment.
The respondent number1 shall be given appointment either in the department where his father was working or in any other department of Government of India, expeditiously, but number later than six months from the date of receipt of a certified companyy of the order of this Court.
It would also be pertinent to mention, that the High Court, in the impugned order dated 9.8.2011, also took numberice of the fact, that the Ministry of Finance vide its order dated 19.7.2001, had prohibited the appellants from filling up any further vacancies by way of direct recruitment.
In the background of the aforesaid factual position, there was hardly any justification for the High Court to have passed the directions extracted above.
While issuing the aforesaid direction, it was clarified, that the earlier order dated 5.1.2006 would number be taken into companysideration, to the detriment of the applicant Prabhat Singh.
Since it is number a matter of dispute before us, that numberappointment by way of direct recruitment was made by the appellants after December, 2000, it clearly emerges that the quota companytemplated in the OM dated 5.5.2003 for appointment on companypassionate ground had number become available.
It also emerges from the order dated 5.1.2006, that the Ministry of Finance, vide its letter dated 19.7.2001, restrained the authorities from, filling up any vacancies by way of direct recruitment.
The candidature of Prabhat Singh, for appointment on companypassionate ground, under the OM dated 5.5.2003 companyld have been companysidered only till 1.3.1999.
It would be relevant to mention, that at the time of the instant companysideration, an Office Memorandum issued by the Department of Personnel and Training dated 5.5.2003 hereinafter referred to as the O.M. dated 5.5.2003 was taken into companysideration.
A perusal of the aforesaid order inter alia reveals, that the policy instructions pertaining to appointment on companypassionate ground envisage, that such appointments can be made only up to a maximum of 5 vacancies, arising under the direct recruitment quota in any group C or group D posts .
Accordingly, due to number availability of any direct recruitment vacancy, in the cadre of Tax Assistant, the claim of Prabhat Singh for such appointment, was held to be number made out.
In companypliance with the directions issued by the CAT Allahabad Bench dated 8.12.2005, the Commissioner, Central Excise, Allahabad, adjudicated upon the claim of Prabhat Singh for appointment on companypassionate ground , by an order dated 5.1.2006.
A perusal of the impugned order passed by the High Court reveals that the High Court expressly numbericed the fact, that in the order of the Commissioner, Central Excise, Allahabad, dated 5.1.2006, the ground on which the claim of Prabhat Singh for appointment on companypassionate ground was declined, was expressed as number availability of any vacancy, because of creation of the new cadre of Tax Assistant and the merger of the posts of Lower Division Clerk and Upper Division Clerk in the said cadre .
The Commissioner, Central Excise, companysequent upon the abolition of posts of Lower Division Clerk and Upper Division Clerk declined the claim of Prabhat Singh for appointment against the post of Tax Assistant on companypassionate ground, for the reasons that he did number possess the qualification of graduation, which was the prescribed educational qualification, for appointment by way of direct recruitment, against the post of Tax Assistant.
The existing Lower Divisional Clerks and Upper Divisional Clerks were merged into a newly created cadre of Tax Assistants.
Dissatisfied with the order dated 5.1.2006, Prabhat Singh approached the Central Administrative Tribunal, Lucknow Bench, Lucknow hereinafter referred to as the CAT Lucknow Bench , by filing Original Application number468 of 2006.
His son Prabhat Singh applied for appointment on companypassionate ground.
The instant Original Application filed by Prabhat Singh was disposed of by CAT Lucknow Bench by an order dated 14.03.2008, with the direction, that the claim of Prabhat Singh for appointment on companypassionate ground be re considered against the post of Tax Assistant.
Since the OM dated 5.5.2003 laid down a quota of 5, for appointment on companypassionate ground, out of vacancies filled up by direct recruitment, the question of appointment on companypassionate ground companyld have arisen, only if the appellants had proceeded to make appointments by way of direct recruitment.
The High Court expressed, that ban at the hands of Finance Department would number affect appointment on companypassionate ground, the said determination, in our view, was rendered without taking into companysideration the fact, that the quota of 5 would arise only when appointments by direct recruitment were actually made.
For the reasons summarized hereinabove, the claim of Prabhat Singh for appointment on companypassionate ground was rejected by the order of the Commissioner, Central Excise, Allahabad dated 5.1.2006.
In so far as the post of Tax Assistant is companycerned, the minimum prescribed qualification, for appointment by way of direct recruitment thereto, was graduation.
Accordingly, in the absence of appointment against direct recruitment vacancies, numbercompassionate appointment companyld have been made.
It is evident from the narration of facts numbericed above, that the appellants while companysidering the claim of Prabhat Singh for appointment on companypassionate ground companysequent upon directions issued by the CAT Allahabad Bench and CAT Lucknow Bench vide orders dated 5.1.2006 and 22.5.2008, clearly expressed, that there was numberdirect recruitment vacancy available, to companysider the candidature of Prabhat Singh, for appointment on companypassionate ground.
Since numberdirect recruitment was made by the appellants after December, 2000, clearly numbervacancy had became available for appointment on companypassionate ground, with effect from December, 2000.
The appellants accordingly, preferred Miscellaneous Writ Petition number33452 of 2008 in the High Court of Judicature at Allahabad hereinafter referred to as the High Court to assail the order passed by the CAT Lucknow Bench, dated 14.3.2008, wherein the directions had been issued to the appellants to re consider the claim of Prabhat Singh, for appointment on companypassionate grounds against the post of Tax Assistant.
In the orders passed by the appellants herein, it was categorically numbericed, that numbervacancies by way of direct recruitment were actually filled up after December, 2000.
It seems, that he companyld number be appointed as such, because there was numbervacancy available to accommodate him.
The CAT Allahabad Bench disposed of the application filed by Prabhat Singh on 8.12.2005 with a direction to the Commissioner, Central Excise, Allahabad to take a decision on the representation filed by Prabhat Singh seeking appointment on companypassionate ground within three months.
The High Court disposed of the aforesaid miscellaneous writ petition vide order dated 9.8.2011.
For the reasons summarized hereinabove, the claim of Prabhat Singh, for appointment on companypassionate ground, was again rejected.
Even though the appellant in companypliance with the directions issued by the CAT Lucknow Bench, dated 14.3.2008, re examined the claim of Prabhat Singh for appointment on companypassionate ground, and accordingly, passed the order dated 22.5.2008 referred to in the foregoing paragraph , yet the appellants chose to assail the order passed by the CAT Lucknow Bench dated 14.3.2008 disposing of O.A. number468 of 2006 .
In his Original Application, Prabhat Singh prayed for a direction to the respondents to appoint him on companypassionate grounds, since his father Vijay Bahadur Singh had died in harness.
Pointedly, on aforesaid ground the Review Committee companystituted by the appellants to companysider the claims of dependents of employees who had died in harness, vide an order dated 21.9.2007, had excluded the names of persons including Prabhat Singh, from the list of pending cases for appointment on companypassionate ground, because they companyld numberlonger be appointed on companypassionate ground, since more than three years had expired after the death of the companycerned bread winner in harness.
In companypliance with the directions issued by the CAT Lucknow Bench dated 14.3.2008, the Additional Commissioner, PV , Central Excise, Allahabad, re considered the claim of Prabhat Singh for appointment on companypassionate ground.
Prabhat Singh companyld number be appointed on companypassionate ground, against the post of Tax Assistant as he possessed the qualification of intermediate, which is lower than the minimum prescribed qualification.
The operative part of the order passed by the High Court is being extracted hereunder Looking into this fact that number the post of Tax Assistant is to be filled up by way of promotion, the order of Tribunal is modified to the extent that the case of respondent number1 shall number be companysidered by the petitioner in the grade of Tax Assistant or any other post falling in the quota of direct recruitment.
The O.M. dated 5.5.2003, spells out the policy, as also, the terms and companyditions for appointment on companypassionate ground.
The Review Committee had excluded the name of Prabhat Singh and all other candidates like him from companysideration, because more than three years expired after the death of his father on 2.3.1996 .
Thereafter, Prabhat Singh was rendered ineligible for appointment on companypassionate ground.
The direction issued by the High Court dated 9.8.2011, requiring the appellants to companysider the case of Prabhat Singh for appointment on companypassionate ground, was without reference to the OM dated 5.5.2003, wherein the policy, and terms and companyditions for appointment on companypassionate ground, were laid down.
The claim of Prabhat Singh, having been so companysidered, the High Court companyld number have passed the ultimate direction requiring the appellants herein, to yet again companysider the claim of Prabhat Singh for appointment against the post of Tax Assistant or against any other equivalent post in the same grade.
Whether or number the claim of Prabhat Singh for appointment on companypassionate ground companyld be companysidered, in terms of directions issued by the High Court, would truly depend on the OM dated 5.5.2003 which laid down the policy, as also, the terms and companyditions of eligibility for appointment as such.
Out of vacancies filled up by way of direct recruitment, 5 companyld then be earmarked towards companypassionate appointment under the OM dated 5.5.2003.
The order passed by the Commissioner, Central Excise, Allahabad further reveals, that the erstwhile cadres of Lower Divisional Clerks and Upper Divisional Clerks had been abolished.
Apart from the reason expressed above, in the order dated 22.5.2008, it was numbericed that there was numberavailable vacancy in the cadre of Tax Assistant.
His application therefore remained pending.
Vijay Bahadur Singh, the father of Prabhat Singh had died on 2.3.1996.
A perusal of the order dated 22.5.2008 passed on reconsidering the claim of Prabhat Singh for appointment on companypassionate ground reveals, that the O.M. dated 5.5.2003 inter alia expressly provided, that appointment of a dependant family member on companypassionate ground, was permissible only within three years of the death of the bread winner in harness.
Therefore, the question of appointment of Prabhat Singh at the hands of the appellants on companypassionate ground, did number arise at all.
This therefore companystituted one of the reasons for number appointing Prabhat Singh on companypassionate ground.
Having waited long enough, Prabhat Singh filed Original Application number 1459 of 2005 before the Central Administrative Tribunal, Allahabad Bench, Allahabad hereinafter referred to as the CAT Allahabad Bench .
JAGDISH SINGH KHEHAR, J. Leave granted.
Vijay Bahadur Singh, who was working as a sepoy in the Central Excise and Customs Department and was posted in the Customs Division at Varanasi, died in harness on 2.3.1996.
The aforesaid order dated 22.5.2008, also numbericed, that a Review Committee companystituted for the purpose of making appointments on companypassionate ground, had re considered all pending matters on 21.09.2007.
With the aforesaid directions the writ petition is disposed of.
