JUDGMENT : VIJU ABRAHAM, J. 1. The above writ petition is filed challenging Ext.P18 order and seeking a direction to appoint the petitioner as 'Junior Assistant' under the Compassionate Employment Scheme. 2. The brief facts necessary for the disposal of the writ petition are as follows: The petitioner's mother passed away on 06.10.2001, while she was working as a “worker” under the 1 st respondent Plantation Corporation Kerala Ltd. The petitioner submitted an application for Compassionate Employment under the dying-in-harness scheme before the 1 st respondent. As per Ext.P3, the request submitted by the petitioner to include her in the list of Junior Assistants was accepted, and she was included in the list of applicants seeking appointment as Junior Assistant under the Compassionate Employment Scheme. In Ext.P4, the waiting list of Junior Assistant under the Compassionate Employment Scheme, the petitioner is Rank No.3. It is the case of the petitioner that though the petitioner was included in the waiting list in the year 2012, she has not been appointed as a permanent Junior Assistant in the 1 st respondent Corporation so far. While so, during 2013, the petitioner was appointed as Junior Assistant on daily wages as per Ext.P5, and the said appointment is still renewed periodically. Thereafter, Ext.P7 communication was issued by the Government directing the 1 st respondent Corporation to take steps to grant an appointment on the application submitted under the Compassionate Employment Scheme without any delay. The Government issued Ext.P9 Government Order in the matter of Compassionate Employment Scheme to provide employment assistance to the dependents of Government servants who are dying-in-harness under State Public Sector Undertakings, which mandated that the applications for the appointment under the Compassionate Employment Scheme should be submitted to the Administrative Department controlling the concerned Public Sector Undertaking. In compliance with the same, the 1 st respondent took a Board decision on 09.02.2021 to transfer all applications seeking appointment under the Compassionate Employment Scheme to its Administrative Department, i.e., the Agricultural Department, as per Ext.P10. Subsequent to Ext.P10, Ext.P11 letter was forwarded by the 1 st respondent to the Government. The petitioner, on the basis of Ext.P13, would submit that there are vacancies of Junior Assistants and that, out of 21 vacancies of Junior Assistants, 16 vacancies are reported to the Public Service Commission, which reveals that 5 posts are set apart for appointment under the Compassionate Employment Scheme. The petitioner, on the basis of Ext.P13, would submit that there are vacancies of Junior Assistants and that, out of 21 vacancies of Junior Assistants, 16 vacancies are reported to the Public Service Commission, which reveals that 5 posts are set apart for appointment under the Compassionate Employment Scheme. As no action was taken for the appointment of the petitioner under the Compassionate Employment Scheme, a writ petition was filed as WP(C) No.36244 of 2022, which was disposed of as per Ext.P14 judgment directing the Government to consider and to take a final decision in the matter. Pursuant to Ext.P14 judgment, the 1 st respondent submitted Ext.P15 letter to the 2 nd respondent Government enlisting the seniority list of applicants in the Junior Assistant category, wherein the petitioner is included as Sl.No.3. In Ext.P15, it is reiterated by the 1 st respondent Corporation that out of the 21 vacancies existing in the cadre, 5 vacancies may be allotted to the candidates under the Compassionate Employment Scheme. Thereafter, pursuant to the direction issued in Ext.P14 judgment, the 2 nd respondent issued Ext.P16 order directing the 1 st respondent, Plantation Corporation, to take necessary steps to consider the applications submitted under the Compassionate Employment Scheme on seniority basis, for appointment in the existing/arising general/last grade posts in the Corporation, complying with the directions stipulated in Ext.P9 Government Order. In compliance with the directions issued by this Court, Ext.P18 order was issued by the 1 st respondent denying the appointment of the petitioner, on the ground that in the seniority list of Junior Assistant post under Compassionate Employment Scheme, the petitioner is only Sl. No.3, and there are 40 other candidates above the petitioner in the list, and at present, there are more than 50% employees in the Corporation appointed under the Compassionate Employment Scheme and therefore, the request of the petitioner for appointment to the post of Junior Assistant under the Compassionate Employment Scheme cannot be considered at present. It is aggrieved by the same that the present writ petition has been filed. 3. It is aggrieved by the same that the present writ petition has been filed. 3. A detailed counter affidavit has been filed by the 1st respondent mainly contending that while the request of the petitioner for appointment as Junior Assistant under the Compassionate Employment Scheme was pending consideration, she was appointed on a daily wage basis as per Ext.R1(a) proceedings, and as seen in the conditions attached to the engagement of the petitioner in R1(a) proceedings, the engagement of the petitioner is on daily wage basis and on condition that the petitioner shall not raise any claim for permanent appointment in the Corporation in the post of Junior Assistant or in any other post either during the currency of contract or afterwards. It is further submitted that the petitioner accepted Ext.R1(a) on a further condition that the said engagement will not confer any right on her to claim regularisation in employment or preference in any appointment in the Corporation. In view of the conditions in Ext.R1(a), the petitioner cannot now raise any claim for appointment under the Compassionate Employment Scheme. Ext.R1(c) communication was issued by the Government directing to take necessary steps to consider the application under the Compassionate Employment Scheme complying with the stipulations in Ext.P9 Government Order and going by Clause 30(a) of Ext.P9 Government Order, the appointment under the Compassionate Employment Scheme is to be set off against direct recruitment vacancies and that has to be confined within the 50% of the total vacancies for direct recruitment. It is further contended in the counter affidavit that as of now, 58.18% of the total strength of employees have been appointed under the Compassionate Employment Scheme, and any appointment made will be in violation of the conditions in Ext.P9 Government Order. It is further stated that since the Corporation is facing a severe financial crisis, recruitment even in vacancies notified to the Public Service Commission has been kept in abeyance. It is further stated that since the Corporation is facing a severe financial crisis, recruitment even in vacancies notified to the Public Service Commission has been kept in abeyance. It is further submitted that there is significant shift in the operational, administrative and functional facets of the Corporation and on account of the same, the respondent Corporation has to revise its staff pattern and therefore, has initiated efforts for restructuring the staff pattern and the vacancy position in each cadre and it can be finalised only after the completion of this exercise which owing to its very extensive nature in time and labour intensive exercise and that until such exercise is completed, nothing can be conclusively stated regarding the vacancy positions in various cadres in the Corporation including those to be appointed under the Compassionate Employment Scheme. It is also submitted that there are other eligible candidates waiting for appointment under the Compassionate Employment Scheme for a longer period than the petitioner. On the basis of the same, it is submitted by the 1 st respondent that the petitioner is not entitled to any of the reliefs as sought for in the writ petition. 4. An additional counter affidavit has been filed by the 1st respondent as directed by this Court on 06.12.2024, wherein it is stated that since the employment under the Compassionate Employment Scheme is not a method of appointment and is only intended to get over the penury caused to the family of the deceased, the compassionate employment cannot be claimed and offered after a lapse of time. In the additional affidavit it is reiterated that going by Ext.P9 Government Order, the appointment under Compassionate Employment Scheme is to be set off against direct recruitment vacancies and that has to be confined within the 50% of the total vacancies for direct recruitment and at present appointments under the Compassionate Employment Scheme constitute 58.78% of the total cadre strength, and therefore, if any appointment is made, it will be in violation of the conditions in Ext.P9 Government Order. On the basis of the same, the learned counsel appearing for the 1 st respondent sought dismissal of the writ petition. 5. Heard the rival contentions on both sides. 6. On the basis of the same, the learned counsel appearing for the 1 st respondent sought dismissal of the writ petition. 5. Heard the rival contentions on both sides. 6. A perusal of Ext.P18 would reveal that the request of the petitioner for appointment under the Compassionate Employment Scheme has not been rejected, but it only says that the appointment under the Compassionate Employment Scheme has already exceeded the 50% fixed as per Ext.P9 order and therefore, the claim of the petitioner will be considered later. Though that is the only reason stated in Ext.P18 to deny the benefit of the petitioner, in the counter affidavit filed, the respondents have taken various other contentions. It is settled law that the order impugned cannot be strengthened by way of filing a counter- affidavit raising various other contentions in support of the same. Since other contentions have been raised, I am of the view that those contentions also have to be considered. 7. One of the contentions raised by the respondent Corporation is that the petitioner has already been engaged on daily wage basis as evident from Ext.R1(a) and it is specified in Ext.R1(a) that the petitioner shall not raise any claim for permanent appointment in the Corporation in the post of Junior Assistant or in any other post either during the currency of contract or afterwards and therefore, the petitioner cannot claim an appointment after he has accepted Ext.R1(a). But the said contention cannot be accepted at all since in Ext.R1(a), there is no undertaking given by the petitioner, nor is there any condition stipulating that once the petitioner has been appointed temporarily on a daily wage basis as per Ext.R1(a), the petitioner has forgone the right for appointment under the Compassionate Employment Scheme. Therefore, the said contention is only to be rejected. 8. Further contention raised in the counter affidavit is that the Corporation is facing a serious financial crisis, and it does not favour large-scale permanent appointments, inviting huge financial obligation and that they have kept in abeyance even recruitment in vacancies notified to the Public Service Commission. Therefore, the question to be decided is whether a ban on regular appointments would automatically act as a bar for making any compassionate appointment. Therefore, the question to be decided is whether a ban on regular appointments would automatically act as a bar for making any compassionate appointment. I am of the view that it can never act as a bar for appointment under the Compassionate Employment Scheme, since the Compassionate Employment Scheme is treated as an exemption to help a family to survive the sudden financial destitution. The High Court of Mumbai in Sunil Gundu Desai v. State of Maharashtra & Others,  2021 Supreme (Bombay) 1204 has considered an issue as to whether the Government resolution imposing a ban on fresh recruitment will apply to the appointments made in the Compassionate Employment Scheme and held that the Government Resolutions imposing ban on fresh recruitment do not apply to appointments made on compassionate basis, as they are kept outside the purview of the general ban. High Court of Mumbai in Anusaya W. D/o Anil Bhosale v. The State of Maharashtra,  2025 Supreme (Bombay) 2002 considered a similar question and held that Compassionate appointments are exempted from recruitment bans aimed at new posts, as their purpose is to assist families in financial distress, following the death of a breadwinner. The Court, while entering into such a conclusion, has also held that the appointment under the Compassionate Employment Scheme does not constitute a new post creation and it should be treated distinctly from regular recruitment under the Government regulation, emphasising the purpose of mitigating family hardship. Therefore, the contention raised based on the financial difficulties faced by the Corporation and the ban that has been imposed on the appointment, even through the Public Service Commission, cannot be a reason for not considering the claim of the petitioner for compassionate appointment. 9. Another contention raised by the learned counsel for the 1 st respondent is that since the Compassionate Employment Scheme is to enable the family of the deceased to get over the sudden financial crisis, the petitioner has no right whatsoever to claim any appointment beyond the Scheme and that the petitioner cannot claim appointment at this distance of time. This Court is unable to accept the said contention also essentially for the reason that the claim of the petitioner has been accepted by the Corporation as evident from Ext.P3 and has been included in the pending list for appointment as Junior Assistant under the Compassionate Employment Scheme. This Court is unable to accept the said contention also essentially for the reason that the claim of the petitioner has been accepted by the Corporation as evident from Ext.P3 and has been included in the pending list for appointment as Junior Assistant under the Compassionate Employment Scheme. Having accepted the entitlement of the petitioner for inclusion in the list for appointment under the Compassionate Employment Scheme, only for the delay in not making an appointment due to want of vacancies, I am of the view that the claim of the petitioner cannot be rejected on the ground of delay in making the appointment. 10. Yet another contention raised by the learned Counsel appearing for the 1 st respondent, based on Ext.R1(c) Government Order, is that the steps for consideration of the application under the Compassionate Employment Scheme are to be done in compliance with Ext.P9 Government Order. It is true that in Ext.P9 Government Order, especially in Clause 30 it is mandated that the appointment under the Compassionate Employment Scheme is to be set off against direct recruitment vacancies and that has to be confined within the 50% of the total vacancies for direct recruitment and based on the same it is contended in the additional counter affidavit that as of now the number of persons appointed under the Compassionate Employment Scheme exceeds 50% and therefore, no further appointments could be made and if any appointment is made, the same will violate the conditions in Ext.P9 Government Order. Though a stand has been taken in the counter affidavit that the vacancy to which appointments have been made under the Compassionate Employment Scheme has exceeded 50%, as per the averments in the counter affidavit, it is seen that the Corporation is also not very sure about the vacancy position in respect of various cadres in the Corporation, including those to be appointed under the Compassionate Employment Scheme. Since the Corporation is considering the review of the cadre strength and staff pattern as per the present requirement, the exact number of vacancies available will be clear only after completion of the said exercise. The stand of the respondent Corporation is that the actual vacancies available for being appointed under the Compassionate Employment Scheme can only be finalised after the exercise of review of the cadre strength and staff pattern. The stand of the respondent Corporation is that the actual vacancies available for being appointed under the Compassionate Employment Scheme can only be finalised after the exercise of review of the cadre strength and staff pattern. But an important aspect to be noted is that Clause 30(a) of Ext.P9 only says that the appointment under the Compassionate Employment Scheme is to be set off against direct recruitment vacancies and that has to be confined within the 50% of the total vacancies for direct recruitment. So, what is important as per Ext.P9 is that the vacancies set apart for direct recruitment and appointment under the Compassionate Employment Scheme shall be confined within 50% of the total vacancies earmarked for direct recruitment. Since the claim of the petitioner has not been rejected in toto as per Ext.P18, I am of the view that the matter requires reconsideration at the hands of the 1 st respondent, after exercising the review of cadre strength and staff pattern and earmarking the exact number of vacancies available for being appointed through the Compassionate Employment Scheme. Therefore, the writ petition is disposed of as follows: 1. The 1 st respondent shall complete the exercise of restructuring the staff pattern and for quantification of the vacancy position in each cadre regarding the total vacancies that are available for appointment under the Compassionate Employment Scheme, as provided in Clause 30(a) of Ext.P9, without any delay, at any rate, within an outer limit of three months from the date of receipt of a copy of this judgment. 2. After the said exercise is completed, if vacancies are available as per Clause 30(a) of Ext.P9, steps shall be taken to make appointments under the Compassionate Appointment Scheme, strictly on the basis of the seniority in Ext.P4(a).