ANTONY DOMINIC, J.
The 6th respondent in T.A.No.5209 of 2012 is the applicant. The said T.A. was filed by the 4th respondent herein claiming appointment in the dying in harness category and contending that the 6th respondent/petitioner was appointed overlooking her claims. The Tribunal by Ext.P6 order upheld the said contention. The Tribunal finally ordered that she be appointed and that, if no vacancy is likely to arise within a reasonable time limit, say within 6 months, the 3rd respondent may retrench the 6th respondent/petitioner to appoint the 4th respondent or the Government may create a supernumerary post to accommodate the 4th respondent. It was also ordered that the 4th respondent, upon her appointment, shall be treated as senior to the 6th respondent/petitioner. It is this order of the Tribunal which is challenged before us.
2. We heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 3 and the learned counsel for the 4th respondent.
3. All parties agree that, during the pendency of this Original Petition, the 4th respondent has been given appointment in the 3rd respondent’s office. Therefore, that part of the grievance stands redressed.
4. Now, what remains is that the grievance of the petitioner that the Tribunal has declared that once appointed, the 4th respondent shall be senior to him. Insofar as this issue is concerned, both the petitioner and the learned Government Pleader referred us to Clause 35 of Ext.P1, the compassionate appointment scheme. This provision reads thus:-
“35. 5% vacancies of Assistant Grade II including Legal Assistant Grade II in the Secretariat (Administrative Secretariat), Finance Department, Law Department and Office of the Advocate General, and 5% vacancies of Auditor Grade II in the Local Fund Audit Department will be reserved and reported to the General Administration (C.E. Cell) Department for allotment of vacancies to the candidates possessing graduation and post graduation qualifications. The dependents of Government Servants in Secretariat, Office of the Advocate General and Local Fund Audit Department having the requisite qualification will be appointed as Assistant Grade II/Legal Assistant Grade II/Auditor Grade-II in an existing or arising vacancy in the concerned Department and such appointment shall not be set off against the 5% vacancies reserved and reported to the General Administration (C.E. Cell) Department.”
5. According to the learned counsel, while the petitioner was appointed being the dependent of a deceased Under Secretary in the office of the Advocate General, the claim of the 4th respondent was in the 5% quota provided in Clause 35 supra. If, as stated by the counsel, the appointment of the petitioner was as the dependent of a deceased Under Secretary in the office of the Advocate General, such appointment will be out side the 5% quota provided in Clause 35. If so, his appointment cannot come in conflict with the appointment of the 4th respondent, who got appointed in the 5% quota, being the dependent of a Head Constable.
6. Insofar as this case is concerned, thus, the claim of the petitioner is as above, and the 4th respondent's appointment is as a dependent of Head Constable in the 5% quota. If that be so, and if the petitioner has been given prior appointment, such appointment is not one made overlooking the 4th respondent entitling the 4th respondent for seniority above the petitioner. Therefore, direction in Ext.P6 order of the Tribunal that on appointment, the 4th respondent shall be treated senior to the petitioner will stand vacated.
The Original Petition is disposed as above.
ANTONY DOMINIC, JUDGE skj ANIL K.NARENDRAN, JUDGE