Andhra Pradesh High Court - Amravati
Pramela Rani vs The State Of Andhra Pradesh on 17 November, 2022
HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA
WRIT PETITION No.18432 of 2021
ORDER:
This writ petition is filed under Article 226 of the Constitution of India, seeking the following relief:
"to issue a Writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondents herein in rejecting the case of the petitioner for appointment on compassionate grounds vide proceedings No.W4/140(54)/2016-PO-1, dated 03.04.2017 and proceedings No.P3/876(06/2017- RM/KR, dated 07.12.2017 issued by the Regional Manager for any suitable post, in the 2nd respondent office as high handed, arbitrary and contrary to the circular instructions, in terms of G.O.Ms. No.60681/Ser.A, dt.12.08.2003. The 1st respondent is the District Selection Committee Chairman for the compassionate appointments in the district and fully empowered to appoint the petitioner at his jurisdiction to pass orders in favour of the petitioner in the interest of justice with a suitable post by relaxing the age of petitioner forthwith and pass such other order".
2. Heard the learned counsel for the petitioner and the learned Standing Counsel for Respondent Corporation.
3. The case of the petitioner is that her husband Late Sri B.K.Sikhamani, E-107906, RTC Security Guard, died due to Heart Attack on 12.08.2006. As she has no other source of 2 income and properties, she made an application for consideration of her case for appointment in any suitable post on compassionate grounds, as early as on 10.09.2006. But 2nd & 3rd respondents failed to consider her case on sympathetic grounds though scheme is in existence till 2020 and there is a continuous cause of action as her husband died on 12.08.2006. Now she is 52 years old, she belongs to Scheduled Caste Community and she requested 1st respondent office for favourable consideration of her Compassionate appointment in his jurisdiction, since the respondents corporation was merged with the Department of Transportation, Government of Andhra Pradesh, wherein the duties functioning in the capacity of Government Rules instead of Corporation Rules and Regulations from 01.01.2020. Citing the Andhra Pradesh State Road Transport Corporation (Absorption of Employees into Government Service) Act, 2019, a Government Order (G.O) passed that all the employees of the Andhra Pradesh State Road Transport Corporation shall stand absorbed into Government service from the date of commencement of said Act. As per the Circular No.60681/Ser.A, Dt.12.08.2003, she submitted that she is the only interested person for employment 3 under the compassionate scheme to feed her dependent un- married daughters.
4. The petitioner further submitted that as the corporation was permitted to appoint the dependents of the deceased employees vide G.O. No.2 and as she was not called for interview, she is constrained to file WP.NO.17621/2013 and this Hon'ble Court vide orders Dt.21.06.2013 in W.P.M.P.No.21442/2013, directed the corporation to consider her case for appointment by interviewing her. In pursuance of the same she was interviewed and an order was passed on 18.06.2016 stating that she studied only 9th class and not acquired SSC, as such she did not qualify for the post of conductor. But respondents are failed to consider her case for any other suitable post like of Cleaner or Shramik, which is unjust.
The petitioner further submits that during pendency of the above case, she has passed SSC in the year 2015 and immediately after getting the certificate from the school authorities, she submitted a representation to the concerned authorities with a request to consider her case for the post of conductor, but her case was rejected without considering her SSC certificate of 2015 by stating that now she is over aged. 4 Immediately by explaining her difficulties, she submitted another representation dated 02.03.2017, requesting to consider her case for any suitable posts by relaxing age limit, but the 1st respondent herein rejected her case stating that she is over aged for the post of RTC constable. The petitioner specifically requested for any suitable post in pursuance of the circular instructions dt.17.06.2016 for the post of shramik, for which petitioner is eligible in all respects, thereby, discriminated her and failed to consider her case on sympathetic as well as compassionate grounds, though the VC and MD is having powers to relax the age, which is unjust, arbitrary and violative of articles 14,16 & 21 of the constitution of India and apart from that against object of the scheme for the compassionate appointment.
5. On the other hand, learned Government Pleader filed counter affidavit submitting that compassionate appointments cannot be given automatically to any candidate simply for the reason of that the applicant is the family member and was related to or dependent on the deceased employee and the applicant must be fully eligible for the post applied for in terms of 5 educational qualifications, age limit and other physical standards required for the post applied for under the scheme.
6. It is further submits by the counsel for respondents that subsequently, the petitioner acquired SSC qualification in October, 2015 and applied for RTC Constable Post which was received at Regional Manager's Office on 20.02.2017 but the selections to the post of RTC Constable in Krishna Region were concluded on 16.02.2016. The application of the petitioner for the post of RTC Constable was received after the conclusion of RTC Constable Posts. Even if the petitioner attended for selections for the post of RTC Constable, the case of the petitioner might not be considered since she is over aged by 17 years as per her date of birth and hence consideration would not arise and found ineligible.
7. It is further submits that comprehensive guidelines were issued vide Circular Memo No.60681/Ser.A/2003-1, dated 12.08.2003 for compassionate appointments in Government of A.P. wherein it was clearly mentioned that the age limit shall be 33 years for open category and for SC/ST/BC, five years concession will be given. But, the age of the petitioner is 54 years at present. As per instructions issued vide G.O.Ms. No.144 6 G.A.(Ser.D) department, dated 15.06.2004 the maximum permissible age for consideration of compassionate appointment for spouse is only 45 years. Whereas the age of the petitioner is 54 years. The petitioner clearly over aged, there is no scope for providing compassionate appointment to the petitioner.
8. Learned counsel for the petitioner would submit that the respondent corporation formulated the scheme vide notification dated 02.03.2013, wherein it is stated that a person, who appointed under compassionate appointment, any suitable post more particularly, Junior Assistants in the Subordinate offices under the Heads of the Departments, the person so appointed is provided a minimum period of three years to acquire minimum qualification and five years for acquisition of degree qualification and also a grace period of two years will be allowed to acquire the academic/ technical qualification. But, even though the said clause specifically obligates the respondent corporation to provide employment to the member of the bereaved family and provide opportunity to acquire the qualification either within the three years or five years. Without implementing the same, the case of the petitioner was erroneously rejected by the respondents on the ground the petitioner did not possess the 7 SSC certificate as on the date of consideration, but she possessed IX class certificate.
9. He further submits that since the case of the petitioner rejected for the post of RTC conductor again she made an application for considering her case as RTC constable. The second representation/application was also rejected on the ground that the petitioner is over aged. But as per the scheme, 6
(d) and 7 there is a specific condition for relaxation of age limit for considering the appointment under the scheme. It is held thus:
6 (d) The spouse of the deceased employee may be appointed initially on temporary basis by the appointing authority after being allotted by the nodal agency concerned and if such an appointment requires relaxation of age, necessary proposal should be sent to the administrative department concerned in Government for taking further action for relaxation of the age rule.
7. A minimum period of 3 years to acquire Intermediate qualification and 5 years for acquisition of Degree qualification be allowed in respect of candidates appointed to the posts of Junior Assistants in the Subordinate Offices and Heads of Departments and Secretariat Departments as the case may be, the period should be reckoned from the date of appointment of the individual concerned.
A further period of 2 years as grace period will be allowed to acquire the academic/Technical qualification.
8If the candidate could not acquire the prescribed qualification within the time allowed he/she will be considered for appointment to the lower post, on the request of the individual, otherwise, will be discharged from service.
10. He further submits that even though the scheme contemplates relaxation of age and relaxation of qualification subject to acquisition of qualification within a period of 5 years from the date of appointment, the case of the petitioner rejected on twice with erroneous grounds and without application of mind, which is contrary to their own circular. He further submits that even the G.O.Ms.No.289, dated 04.08.2000, issued by the 5th respondent herein also meant for extension of time limit to acquire the minimum educational/ technical qualification to those who appointed under the scheme of compassionate appointment to the dependents of the deceased government employees. He further submits that the petitioner also pleaded whatever suitable post basing upon her qualification and age also can be provided even for cleaner/ shramic. But without considering the same, rejecting on the unreasonable grounds against their own rules framed under the scheme is nothing but illegal, arbitrary and violation of articles 14 and 21 of the constitution of India. He 9 relied upon a Judgment rendered by the combined High Court of Andhra Pradesh, dated 13.04.2017 wherein it is held thus:
(paragraphs 4, 9, 10, 20, 24 to 27).
4. The scheme of compassionate appointment was dispensed within A.P.State Road Transport Corporation (APSRTC) in the year 1998. When the State was united, the combined APSRTC persuaded the Government to reintroduce the scheme of compassionate appointment. Though the Corporation informed the Government that Corporation is not making profits, but endeavour was being made to improve profitability, that for long time no recruitment was made, and large number of claims have accumulated and requested to grant permission to make appointments on compassionate grounds to all eligible dependents of the employees, who have died in harness.
Government was informed that 1120 claims were pending with effect from 01.01.1998. Government issued orders in G.O.Ms.No.2, Transport, Roads & Buildings (TS.11) Department, dated 05.01.2013 permitting the Corporation to reintroduce the scheme of compassionate appointments with effect from 01.01.1998. Vide orders in G.O.Ms.No.15 Transport, Roads and Buildings (TR.II) Department, dated 07.02.2014, Government clarified that the scheme shall be in force for future claims also.
9. For the post of Conductor, minimum height prescribed in the recruitment regulations is 153 CMs. Even prior to re-introduction of the scheme, 2 Cms relaxation was granted to consider the claims of the women dependents of the deceased employees under Bread Winner Scheme. However, having found that in spite of granting relaxation, several women candidates could not be selected because of height restriction and on consideration of the representations of the Unions, further relaxation in height is extended and the height 10 requirement is reduced to 146 Cms, as one time measure. However, this concession is extended only to lady dependents of the deceased employees, whose death occurred on or before 4.11.2000. In other words, for a limited category of lady dependents, this relaxation is extended and the normal relaxation of 2 Cms stands with reference to all other claims.
10. In these writ petitions basic facts are not in dispute. The bread winner of petitioners died while in service and petitioners as members of the respective families are eligible to seek employment under the Bread Winner Scheme. Petitioners are women dependents of deceased employees. Their entitlement for compassionate appointment is recognized, were considered and provisionally selected for appointment as Conductors. When their height measurement was taken, they were found short of the required height for the post of Conductor and, therefore, they were not appointed as Conductors. Height of petitioners in WP.No.33563 of 2016 and WP.No.9548 of 2016 was measured as 149 Cms, whereas the height of petitioner in WP.No.8941 of 2016 was measured as 147 Cms. Petitioners challenged the said decision in these writ petitions.
20. Guided by the principle of law laid down by Supreme Court on equality clause and artificial classification in the above decisions, when the action of the respondent corporation is tested, classification brought about by the respondent corporation by applying different height criteria based on date of death of ex-employee is not sustainable. Further, it is appropriate to note that once appointed, irrespective of source of recruitment, a Conductor shall have to discharge the same duties and responsibilities, whether the bread winner of the family died before 04.11.2000 or after 04.11.2000. When, according to the respondent corporation, a women dependant of employee deceased prior to 04 11 2000 with less 11 than 151 CMs of height can discharge the functions of post of Conductor effectively, I see no good reason to hold that others cannot discharge such duties effectively. The said action cannot stand the test of judicial scrutiny.
24. India is signatory to United Nations convention on the elimination of discrimination against women. Convention adopted in the year 1979 by the United Nations General Assembly, is often described as an international bill of rights for women. It sets up an agenda for national action to end discrimination against women.
25. As a State established entity involved in important public function, it is necessary and imperative for the TSRTC to take all measures to eliminate discrimination in providing employment and create employment opportunities to women and create conducive atmosphere for women to work.
26. On the ground of less height, the claim for provision of compassionate appointment cannot be denied to a woman. This Court is of the opinion that decision of the respondents in not considering the claims of petitioners, though they were selected, merely on the ground that they were falling short of height of less than 151 Cms is arbitrary, discriminatory and unconstitutional.
27. Writ Petitions are accordingly allowed and respondents are directed to consider the petitioners to provide employment as Conductors under the BRS without regard to objection on height. The entire exercise shall be completed within two months from the date of receipt of copy of this order.
11. In view of the Judgment rendered by the Hon'ble Court, the age of the petitioner also can be relaxed, since it is within the object of the scheme at clause (6) (d). Therefore, by relaxing the 12 age limit, the petitioner can be appointed as constable, for which she made application.
12. On the other hand, learned Standing Counsel for respondents would submit that initially she applied for the post of conductor, but she is not eligible and she does not possess the required educational qualification of SSC, hence her case was rejected. But again she made application for appointment of constable, for which she is not eligible, since she crossed the age limit. He further submits that the claim of the petitioner under compassionate appointment is only equitable right but not a legal right, therefore, the petitioner cannot keep on to submit applications one after another for different posts, once the case was considered and rejected, the case of the petitioner cannot be considered again and again. Therefore, the present writ petition is liable to be dismissed. The respondent corporation also relied upon a Judgment of Hon'ble Supreme Court of India in Civil Appeal No.7047 of 2022 (Arising from S.L.P.(civil) No.20935 of 2021). It is held in para 6 thus:
When the respondent made an application for compassionate appointment on 23.03.2010, her daughter was not graduate and the requisite qualification for appointment on the post of LDC was Graduation. Therefore, the date on which the 13 respondent applied for compassionate appointment, her daughter was not having the requisite qualification for the post of LDC. As per settled position of law, the qualification prevailing on the date of applying for compassionate appointment is to be considered and not the date on which the application for compassionate appointment is considered.
13. Having regard to the submissions made by the learned counsel for the petitioner and learned Standing Counsel for the respondents that the contention of the petitioner is that the petitioner is the only eligible person of the deceased family for appointment under the compassionate scheme as formulated by the respondent corporation and even though as on the date of consideration, she does not possess required qualification, but as per clause 7 of scheme, she must be provided an opportunity of minimum period for acquisition of such qualification after her appointment in a suitable post for which she made an application is valid and reasonable. In view of the scheme of the respondent that clause 7 itself contemplates for providing minimum period of 3 years for minimum qualification and for acquisition of degree, the period can be extended to 5 years. In the event of non- acquisition of qualification within the prescribed time of 5 years, another grace period of 2 years was also granted under the scheme. The other contention of the petitioner is that she 14 submitted her second application for appointing as RTC constable, the same is also rejected on the ground of over age, even though her first application at suitable age and sought for either conductor or any other suitable post, but erroneously the case of the petitioner was rejected in violation of Articles 14 and 21 of the Constitution of India and also without application of mind is acceptable, due the clause 6 (d) of the scheme of the respondent corporation specifically provides for relaxation of age in the case of wife of the deceased under compassionate appointment was provided. The other contention of the petitioner is that the scheme formulated by the respondent corporation and law laid down by this Hon'ble Court and the Hon'ble Apex Court, the petitioner is entitled for appointment any suitable post under compassionate grounds is very much force and should be considered.
14. On the other hand, the contention of the learned Standing Counsel for the respondent corporation is that when she made application for the post of conductor, she does not possess the required qualification of SSC, the case of the petitioner was not considered and even in the second application, the petitioner requested for selection of RTC constable, for which she crossed 15 the age limit, is not tenable and also against the object and clauses of their own scheme which was meant for compassionate appointment.
15. In view of the foregoing discussion, the petitioner is eligible for consideration of appointment under compassionate scheme as formulated by the respondent corporation in all respects. As such, the present writ petition is liable to be allowed.
16. Accordingly, the writ petition is allowed. The respondents are directed to consider the case of the petitioner under compassionate appointment and to provide employment as conductor/ constable under the compassionate scheme without regard to the objection of over age. The entire exercise shall be completed within a period of two (2) months from the date of receipt of a copy of this order. No order as to costs.
Consequently, Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed.
________________________________ VENKATESWARLU NIMMAGADDA, J Date: 17.11.2022 sj 16 166 HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA WRIT PETITION No. 18432 of 2021 Date: 17.11.2022 sj