Kerala High Court
V.Prajith vs Chief Commissioner Of Central Tax ... on 8 September, 2021
OP (CAT) No.53/2021 1/7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
Wednesday, the 8th day of September 2021 / 17th Bhadra, 1943
OP (CAT) NO. 53 OF 2021
(AGAINST THE ORDER DATED 12.07.21 IN OA NO.680/2019 OF CENTRAL ADMINISTRATIVE
TRIBUNAL,ERNAKULAM BENCH)
PETITIONER/APPLICANT:
V.PRAJITH , S/O LATE KORUKUTTY,AGED 38 YEARS, THEJUS HOUSE,
THAMARAKUZHI, MALAPPURAM DISTICT-676 505.
RESPONDENTS/RESPONDENTS:
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 FINANCE, NORTH BLOCK, NEW DELHI-110 001.
OP (CAT) praying inter alia that in the circumstances stated in the
affidavit filed along with the OP (CAT) the High Court be pleased to order
that no fresh appointment should be made to the post of Tax
Assistant/Havildar till the disposal of this Original Petition.
This petition coming on for orders on 08/09/2021, upon perusing the
petition and the affidavit filed in support of OP (CAT) and this court's
order dated 13/08/2021, upon hearing the arguments of M/S
C.S.GOPALAKRISHNAN NAIR AND RASHMI K.R., Advocates for the petitioner, and
of SRI.P.VIJAYAKUMAR, ASG OF INDIA for the respondents, the court passed
the following:
OP (CAT) No.53/2021 2/7
ALEXANDER THOMAS & A.BADHARUDEEN,JJ.
------------------------------------------------
O.P(CAT) No.53 of 2021
(Arising out of the order dated 12-7-2021 in O.A No.680 of 2019
on the file of CAT, Ekm Bench.)
----------------------------------------------------
Dated this the 8th day of September, 2021
ORDER
After hearing both sides, we are of the view that the case
can be taken up for consideration for proceeding further only if
further crucial and relevant factual aspects are made available by
both sides. Hence it is ordered that the competent authority among
the respondents in the O.P will immediately file an affidavit stating
as to (i) the manner and norms applied for preparing list of
candidates eligible for compassionate appointment for the relevant
selection year and the norms on the basis of which, the candidates
are evaluated for placement in a list as in Annexure A7 and also as
to whether apart from other norms for assessing the eligibility and
entitlement for compassionate appointment, performance of the
candidates in endurance test is also taken into account for award of
marks, which have resulted in preparing a list as per Annexure A7.
(ii) Whether after Annexure A15 judgment of the Division Bench of
this Court, the applicant was again compelled to undergo
endurance test for the impugned selection process in question and
if so, the reason for compelling him to undergo endurance test in
OP (CAT) No.53/2021 3/7
O.P(CAT) No. 53 of 2021
spite of the specific undertaking of the respondents as well as the
direction of the Division Bench in Annexure A15 that the applicant
shall be considered for the future selection, but without making him
to undergo endurance test as he has already passed the endurance
test on the previous occasion. If the applicant has been treated as
failed in the endurance test in the present selection process,
whether his case was totally excluded from consideration or whether
any marks have been separately awarded for his performance in the
endurance test, which resulted in the assessment of candidates as
per Annexure A7 list, etc. (iii) In that regard, it should also be stated
as to whether Annexure A7 is the list of candidates prepared on the
basis of the eligibility and entitlement as per the norms for the
present selection process and if not, a copy of the actual list so
prepared by the respondents for the impugned selection process for
compassionate appointment shall be produced before this Court.
(iv) Further, the affidavit should also specifically deal with
the specific contention of the original petitioner/original applicant
that going by the dictum laid down by the Apex court in the case in
Director General of Posts & Ors. v. K.Chandrashekar Rao
[(2013) 3 SCC 310] para No.20, that based on the Office
Memorandum prepared by the Union Government, the number of
OP (CAT) No.53/2021 4/7
O.P(CAT) No. 53 of 2021
vacancies that to be awarded for compassionate appointment shall
be reckoned on the basis of 5% of the total number of vacancies
arising for Direct Recruitment quota in a particular year. The
affidavit should also deal with specific contention of the petitioner
that in the instant case, the number of vacancies for the selection
year in question has been assessed wrongly in terms of Annexure
A10, inasmuch as only actually unfilled Direct Recruitment
vacancies as on 01-01-2014 has been assessed and 5% thereof has
been calculated on that basis and that the legally correct method
was to assess vacancies of 5% of not only the unfilled vacancies in
the Direct Recruitment quota as on the Ist January of the selection
year but also the vacancies which are otherwise available in the
Direct Recruitment quota, but not filled up through compassionate
quota on the previous years and that the respondents cannot reckon
vacancies by taking into account only 5% of the actual number of
unfilled vacancies in the Direct Recruitment quota as on I st January
of the selection year, etc.
(v) Further, the affidavit also deal with the consequential
plea of the applicant that if the number of vacancies in the
compassionate quota for a relevant selection year in question had
been correctly reckoned as 5% of the actual number of total
OP (CAT) No.53/2021 5/7
O.P(CAT) No. 53 of 2021
vacancies in the Direct Recruitment quota as above i.e., computing
both not only unfilled vacancies but also vacancies which should
have been filled previously in the compassionate quota but not
filled, then the number of vacancies which would have been
available for compassionate appointment to accommodate
candidates in Annexure A7 rank list could have been much higher
and that the applicant with rank No.13 in Annexure A7 rank list
would then have secured appointment as Tax Assistant in the
impugned selection proceedings itself, etc. The affidavit shall be
filed by the competent authority among the respondents within two
weeks as last chance, failing which, this Court will be constrained to
proceed further on the basis of the available pleadings and
materials on record. After receipt of the affidavit filed by the
competent authority among the respondents as above, the petitioner
will file an affidavit in response thereto and give his factual pleas as
well as legal submissions thereof as to how the impugned selection
process has been vitiated and as to the grounds made out by him to
warrant interdiction in judicial view with the verdict of the Tribunal
at Annexure A10, etc. Affidavit of the petitioner in the
O.P(CAT)/original applicant shall be filed within ten days from the
date of receipt of the affidavit of the respondents as above.
OP (CAT) No.53/2021 6/7
O.P(CAT) No. 53 of 2021
3. From the relevant facts and figures relating to
computation of of vacancies in the 5% compassionate quota for
atleast five years prior to the present selection year should also to be
given to ascertain as to whether there were unfilled vacancies in the
5% compassionate quota and whether those vacancies have not been
computed for the subsequent year in the compassionate quota or
whether those vacancies have been filled up in the regular Direct
Recruitment quota without resort to compassionate appointment,
etc.
List the case on 13-10-2021.
H/o
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
A.BADHARUDEEN, JUDGE
amk
08-09-2021 /True Copy/ Assistant Registrar
OP (CAT) No.53/2021 7/7
APPENDIX OF OP (CAT) 53/2021
ANNEXURE A15 TRUE COPY OF THE COMMON JUDGMENT DATED 13.8.2018 IN
OP(CAT) NO 125/2018 AND CONNECTED CASES OF HON'BLE HIGH
COURT OF KERALA
ANNEXURE A7 TRUE COPY OF THE MINUTES
ANNEXURE A9 TRUE COPY OF THE LETTER UNDER RTI ACT
ANNEXURE A10 TRUE COPY OF THE LETTER UNDER RTI ACT REPLY OF ANNEXURE
A9
