Andhra Pradesh High Court - Amravati
Smt. K. Lakshmi, vs The State Of Andhra Pradesh, on 26 February, 2021
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.5754 of 2020
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, holding that, in not considering the case of the 2nd petitioner for appointment under compassionate grounds, rejecting the case of 1st petitioner for compassionate appointment vide intimation Roc.No.TL3/2779/2015, dated 28.06.2019 as illegal, arbitrary, unjust and violative of Article 14, 16 and 21 of Constitution of India consequently direct the respondents to consider the case of the 2nd petitioner for appointment under compassionate grounds in any suitable post by relaxing rules on par with similarly situated persons considered vide G.O.Rt.No.119, dated 11.02.2020 and G.O.Rt.No.95, dated 11.02.2020 and pass such order."
2. The case of the petitioners in nutshell is that the husband of the 1st petitioner K.Jayaprakash while working as Gardner expired on 14.02.2014 while in service. The petitioner submitted a representation dated 05.02.2015 requesting the respondents to provide compassionate appointment to her son i.e., 2nd petitioner herein enclosing copies of relevant documents. The respondents orally informed that, as per SSC Certificate the age of the 2nd petitioner was less than 16 years as on date of the death of her husband, thus without passing any speaking orders the respondents orally stated that, the case of the 2nd petitioner cannot be considered and advised her to submit an application for compassionate appointment to her. 2
Accordingly, the petitioner submitted an application dated 15.07.2017 to the respondents requesting to provide a suitable employment on compassionate grounds to her but the respondents dragged the matter for years together. After repeated requests and representations ultimately issued rejection order vide R.O.C.No.TL3/2779/2015, dated 28.06.2019, on the ground that the 1st petitioner made an application for compassionate appointment after a lapse of three years from the date of death of her husband. The same is now questioned by this Court on the ground that rejection of the application of the 1st petitioner denying appointment of the petitioners 1 and 2 is illegal and arbitrary and requested to set aside the same consequently direct the respondents to provide employment on compassionate grounds in any suitable post.
The petitioner also relied on the judgment in Sushma Gosain and others v. Union of India and others1, where the Apex Court held that....
"we consider that it must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner of the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years."
But in the present case, application of this petitioner is kept pending for two years and therefore such action of the 1 (1989) 4 SCC 468 3 respondents is illegal and arbitrary and requested to issue a direction as stated supra.
The respondents filed counter denying material allegations while admitting the death of her husband while working as a Gardner while in service on a particular day and making an application by the 1st petitioner for appointment of her son on compassionate grounds in any suitable post and submission of 2nd application by the 1st petitioner for her appointment on compassionate ground in the year 2017. But, the specific contention of the respondents is that in terms of Government orders in G.O.No.687, GAD(Ser.A) Dept, dated 03.10.1997 and G.O.Ms.No.165, GAD(Ser.A) Dept., dated 20.03.1989 read Government memo No.618/Ser.A/ 78-11GAD(Ser.A) Dept., dated 17.12.1979, the petitioners are not entitled to claim any relief and again the 1st petitioner requested to provide employment to her instead of her son as her son would be ineligible after lapse of three years as per representation dated 17.03.2017 of the petitioner (2nd applicant). The said request was examined as per rules of compassionate appointment and as the 2nd application was received from the petitioner for compassionate appointment after a lapse of three years from the date of death of deceased employee, her request is not feasible for consideration. On these two grounds, the request of the petitioners 1 and 2 was 4 rejected and finally the claim of the petitioners are not entitled to claim relief and requested to dismiss the writ petition.
Heard Sri Suresh Kumar Potturi, learned Counsel for the petitioners who contended that the earlier application was submitted for appointment of the 2nd petitioner in any suitable post on compassionate grounds within time. The 2nd application submitted for the appointment of 1st petitioner in any suitable post on compassionate grounds and it is a continuation of earlier application.
In support of his submissions and contentions, the learned counsel for the petitioners placed reliance on the following judgments of the Division Bench of Hon'ble Madras High Court:-
1) T.Sathiaraman v. The Secretary to Government and two others 2
2) T.Meer Ismail Ali vs The Tamilnadu Electricity Board 3 On the strength of principles laid down in the above said judgments, the counsel for the petitioners contended that the rejection of application of the 1st petitioner for her appointment in any suitable post on compassionate grounds is illegal.
It is further contended that the rejection of application of the 2nd petitioner on the ground that he was not aged 18 years as on the date of death of his father is also irrational and illegal and it is nothing but arbitrary exercise of exercise of power by on part of the respondents requested grant the relief as claimed 2 W.A.(MD) No.737of 2013, dt.23.07.2013 3 (2004(3)CTC 120) 5 in the writ petition. Whereas, Sri A.Sumanth, Standing Counsel for the respondents contended that father of the 2nd petitioner and husband of the 1st petitioner died on 14.02.2014 and an application was made on 05.02.2015 to appoint the 2nd petitioner in any suitable post, on compassionate ground by then he was aged fifteen years eight months six days. Thereupon, 1st petitioner made another application stating that her son is not eligible for appointment in any suitable post on compassionate grounds, requested to appoint her in any suitable post on compassionate grounds by application dated 15.07.2017. Since, the request of the petitioner, to appoint the 2nd petitioner is contrary to the G.O.No.687, GAD(Ser.A) Dept, dated 03.10.1997 and G.O.Ms.No.165, GAD(Ser.A) Dept., dated 20.03.1989 read Government memo No.618/Ser.A/78- 11GAD(Ser.A) Dept., dated 17.12.1979 and similarly the request of the 1st petitioner was rejected as the application was submitted at belated stage i.e., beyond one year from the date of death of her husband and consequently the rejection of the claim of the petitioners is not against law and request to dismiss the petition.
Undisputedly, husband of the 1st petitioner and father of the 2nd petitioner died on 14.02.2014 while working as a Gardner under the respondents. The petitioners being the dependents of the deceased/Government servant are entitled to claim compassionate appointment subject to compliance the 6 requirements under G.O.No.687, GAD(Ser.A) Dept, dated 03.10.1997 and G.O.Ms.No.165, GAD(Ser.A) Dept., dated 20.03.1989 read Government memo No.618/Ser.A/78- 11GAD(Ser.A) Dept., dated 17.12.1979. As they are in harness and in financial distress without any support from any source of income, this scheme is intended to provide immediate relief to the dependents of deceased/Government servant who are in financial distress. Therefore, the petitioners have to satisfy the mandatory requirements of the G.O.No.687, GAD(Ser.A) Dept, dated 03.10.1997 and G.O.Ms.No.165, GAD(Ser.A) Dept., dated 20.03.1989 read Government memo No.618/Ser.A/78- 11GAD(Ser.A) Dept., dated 17.12.1979. Unless the petitioners satisfy those mandatory requirements, they are not eligible for being appointed in any suitable post on compassionate grounds.
As per G.Os. and Government Memos referred above, as per the scheme of compassionate appointment, an application shall be made within one year from the date of death of the Government Servant for appointment on compassionate ground; the petitioners are conscious about the time allowed to submit an application for compassionate appointment and accordingly submitted an application dated 05.02.2015 to appoint the 2nd petitioner in any suitable post on compassionate ground. But for one reason or the other the 1st petitioner again submitted another application dated 15.07.2017 stating that her son is not eligible for being appointed as he was aged fifteen years eight 7 months six days as on the date of death of her husband and father of the 2nd petitioner and requested to appoint her in suitable post on compassionate ground.
According to the scheme for compassionate appointment and as per the G.Os referred above including the memo for appointment on compassionate ground the child must be 16 years of age as on the date of death of the Government servant and infact it is stated in the memo referred above that the child must attain age of majority or 18 years within two years after the death of Government servant. But in the present case, the 2nd petitioner was aged 15 years eight months six days. In view of the discrepancy in the date of birth noted in SSC certificate is 08.06.1998 but in the service records the age of the 2nd petitioner has noted as 08.06.1997. Therefore, the date of birth mentioned in the SSC Certificate will prevail over the service register, which is basis for appointment in any Government Service.
It is contended that as per Municipal records, the 2nd petitioners date of birth was 08.06.1997. Thus, the date of birth noted in the municipal records, date of birth noted in the service records and SSC certificate are not consistent with one another and either of them cannot be accepted. But, in view of the authenticity attached to the SSC Certificate which is basis for appointment in any Government Service or public employment and the same is to be accepted. The date of birth noted in the 8 SSC Certificate if taken into consideration that the 2nd petitioner was aged 15 years eight months six days and thereby question of attaining 18 years within two years from the date of death of Government servant does not arise and consequently he is not eligible for being appointed in any suitable post as he is disqualified to be appointed on account of underage as on the date of death of his father. Therefore, rejection of the claim of the 2nd petitioner by the respondent is in accordance with the G.Os. referred above. However, the application is pending with the respondent No.2. Keeping the application of the 2nd respondent for appointment on compassionate ground is not consistent with the law laid down by the Apex Court in Sushma Gosain case (referred supra) wherein the Apex Court held that in all claims for appointment on compassionate ground, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years.
Therefore, keeping the application of the 2nd petitioner pending since 05.02.15 is illegal and arbitrary and therefore the 2nd respondent is directed to pass appropriate order in terms of G.Os. and Governments memos referred above within two weeks 9 from today, if it is pending with the 2nd respondent, in accordance with law.
The contention of the 1st petitioner is that she is also eligible for being appointed in any suitable post on compassionate ground and made an application dated 15.07.2017 i.e., after lapse of one year from the date of death of her husband. But as per scheme for compassionate appointment, application must within one year for her appointment on compassionate ground. The learned Counsel for the petitioners, based on the law declared by the Division Bench of Madras High Court in T.Sathiaraman case and T.Meer Ismail Ali case (referred supra) contended that the 2nd application is continuation of the 1st application and thereby the 2nd application cannot be said to be barred by time in terms of the scheme of compassionate appointment.
No doubt, the first application was submitted on 05.02.2015 i.e., within one year from the date of death of husband of the 1st petitioner. It is absolutely within time prescribed under the scheme for appointment on compassionate ground. But, the first application for appointment of 2nd petitioner i.e., son of the deceased whereas the 2nd application is for appointment of 1st petitioner i.e., wife of deceased and the mother of the 2nd petitioner. These two applications are for distinct reliefs and for appointment of two individuals. According to the principles laid down by the Division Bench in 10 the judgment referred above relying on earlier judgment of the Madras High Court in W.P.No.1584 of 2011 where the Court held that the applications having been made within a period of three years and the same having not been considered on the ground that the petitioner therein was not 18 years of age at that time, the subsequent application cannot be rejected on the ground that the application was submitted within three years and it is a continuation of earlier application. In the facts of the above judgment, the first applicant who did not attain age of 18 years and the second applicant are one and the same. But the second application was made after attaining age of 18 years. Therefore, the Madras High Court concluded that the 2nd application submitted by the same person who submitted the first application is a continuation of earlier application.
But in the earlier judgment of Division Bench applying the same judgment concluded that the application submitted by two separate individuals. The second application is continuation of earlier application. The principle laid down in the above judgment is not binding president except persuasion. Therefore, the same principle cannot be applied since the scheme of compassionate appointment of Tamilnadu State is different from the scheme of compassionate appointment in state of Andhra Pradesh. The learned Counsel for the petitioners relied upon the judgment in T.Meer Ismail Ali case (referred supra) no ratio is found except observation in para No.5 as follows ... 11
"Learned Counsel for the respondent relied upon the judgment dated 10.10.2002 passed in W.P.No.35155 of 2002 holding that the very purport of providing compassionate appointment was to provide employment assistance to the dependents of deceased employee who died in harness and thereby provide immediate relief to the family from undergoing any financial sufferings. It was held therein that when the application was made after 31 years after the death of the father, there was no scope to consider the application for compassionate appointment, as the same would not serve the purpose of which it was intended. In fact, the judgments of the Supreme Court as well as this Court referred to in the said judgment were also in respect of cases where applications for compassionate appointments appear to have been made after 17 years and 31 years respectively, after the death of the employees concerned. Therefore, what is stated in those cases can have no application to the facts in this case."
Basing on the observation, the learned Counsel contended that the application was submitted within two years and the first application was submitted within one year as per scheme, whereas the 2nd application was submitted for appointment of employment on compassionate ground after three years but the 2nd application cannot be based on the second application of the 1st petitioner. She cannot be appointed in any suitable post for the reason that the application was made beyond one year and on receipt of such applications and providing employment would defeat or impede the very purpose of the scheme of compassionate appointment. Therefore, rejection of the application of the 1st petitioner by order dated 28.06.2019 is in 12 accordance with law and the same cannot be interfered by this Court while exercising limited jurisdiction of this Court under Article 226 of the Constitution of India. Since, this Court cannot sit under appeal of the order passed in any administrative authority, which is impugned in the writ petition.
Similar question came up before the Division Bench of Madras High Court in E. Ramasamy v. Tamil Nadu Electricity Board4, where the Division Bench considered the issue and decided that the scheme permits three years outer limit for filing application for employment on compassionate grounds from the date of death of the employee. In the facts of the above case, the applicant became major after nine years from the date of death of the employee. Therefore, the application was rejected by the department and the same is upheld by the Division Bench of High Court of Madras, as the application was submitted beyond the period permitted under the scheme.
In Director of Education v. Pushpendra Kumar5, the Apex Court held that, there cannot be reservation of vacancy till such time as the petitioner becomes a major after a number of years, unless there are some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief.
4 W.A.No.336 of 2003 & batch dated 18.09.2006 5 (1998)5 Sessions Court 192 13 In Sanjay Kumar v. State of Bihar6, the Apex Court considered the concept of compassionate appointment and while discussing the scope, the Apex Court concluded that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread earner who had left the family in penury and without any means of livelihood and held that, there cannot be reservation of a vacancy till such time as the applicant becomes a major after a number of years, unless there are some specific provisions. In fact such a view has been expressed in Director of Education v. Pushpendra Kumar7. In the facts of the above judgment, on the date when the first application was made by the petitioner on 02.06.1998, the petitioner was a minor and was not eligible for appointment. This is conceded by the petitioner. There cannot be reservation of vacancy till such time as the petitioner becomes a major after a number of years, unless there are some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief. The purpose of providing employment to a dependant of a government servant dying in harness in preference to anybody else is to mitigate the hardship caused to the family of the employee on account of his unexpected death while in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointment. None of these considerations can operate when 6 2000 (7) SCC 193 7 (1998) 5 SCC 192 14 the application is made after the death of the employee. The reason for making compassionate appointment, which is exceptional, is to provide immediate financial assistance to the family of a government servant who dies in harness, when there is no other earning member in the family.
In Sanjay Kumar v. State of Bihar (referred supra), the applicant became major after number of years. Unless there is some specific provision which permits the applicant to make such application subsequent to attaining majority, the same cannot be accepted for the reason that the very basis of compassionate appointment is to see that the family gets immediate relief. The application made after stipulated time under the scheme is not maintainable and it is not permissible to hold that such application could be made after attaining the age of majority.
Therefore, keeping in view the principles laid down by the Apex Court and various Courts in the above judgments, it is clear that the Court cannot hold that the scheme provided for making application on compassionate ground must be done in accordance with the procedure, if the application is made beyond the period prescribed under the scheme, rejection is justified and therefore, the rejection of application of the petitioners in the present case is justifiable.
Therefore, I found no ground to set aside the impugned order dated 28.06.2019. However, it is appropriate to issue a direction to the 2nd respondent to dispose of the application submitted by the 1st petitioner to appoint the 2nd petitioner in 15 any suitable post on compassionate ground strictly adhering to the G.Os. and Government memos within ten(10) days from today.
In the result, the Writ Petition is dismissed. No costs. As a sequel, interlocutory applications, if any, pending shall stand closed.
__________________________________________ JUSTICE M.SATYANARAYANA MURTHY Date: 26.02.2021 KLPD 16 THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY Writ petition No.5754 of 2020 Date: 26.02.2021 KLPD