Andhra HC (Pre-Telangana)
Mrs. Y. Susheela vs The Asst. General Manager (Admn) For ... on 14 August, 2007
Equivalent citations: 2007(6)ALD400, 2007(5)ALT691, 2008 LAB. I. C. (NOC) 725 (A.P.), 2008 (3) AJHAR (NOC) 760 (A. P.)
Author: G.S. Singhvi
Bench: G.S. Singhvi
JUDGMENT G.S. Singhvi, C.J.
1. Article 14 of the Constitution of India declares that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 16(1) lays down that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The Courts have interpreted this facet of the doctrine of equality as casting duty on every public authority to make appointment to public services and on the posts in connection with the affairs of the State by adopting a mechanism which ensures opportunity to all similarly situated persons to compete for selection. One exception to this rule can be found in the constitutional scheme of reservation for Backward Classes, Scheduled Castes, Scheduled Tribes and Women. The other exception can be found in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which provides for reservation for physically challenged persons. Third exception has been carved out by the courts by according approval to the policies framed by the governments and their agencies/instrumentalities for appointment on compassionate grounds.
2. The philosophy underlying the policy of compassionate appointment is to provide immediate help to the family of an employee who dies in harness by appointing one member of the family on similar or lower post. In Umesh Kumar Nagpal v. State of Haryana , the Supreme Court referred to an earlier judgment in Sushma Gosain v. Union of India observed:
...As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz. relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs of the family engendered by the erstwhile employment which are suddenly upturned.
3. The Supreme Court then considered whether the appointment on compassionate ground can be claimed after long lapse of time and observed:
For these very reasons, the compassionate employment cannot be granted after a lapse of reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over.
4. The policies of compassionate appointment framed by some of the public employers do provide for appointment of the minor dependant of the deceased employee on his/her attaining majority provided that no other family member is eligible for such appointment till that time. Though the courts have not invalidated such policies, it has been consistently held that post cannot be kept vacant for the minor dependent of the deceased employee. In Jagadish Prasad v. State of Bihar , the Supreme Court unequivocally ruled that an application made by the minor dependant of the deceased after he attains majority cannot be entertained if there is a long time gap between the death of the employee and making of the application.
5. The ratio of the above noted two judgments is also reflected in State of Haryana v. Rani Devi , State of U.P. v. Paras Nath , Director of Education (Secondary) v. Pushpendra Kumar , Haryana State Electricity Board v. Krishna Devi , State of Manipur v. Mohd. Rajaodin , Punjab National Bank v. Ashwini Kumar Taneja , General Manager (D&PB) v. Kunti Tiwary , National Hydroelectric Power Corporation v. Nanak Chand , Commissioner of Public Instructions v. K.R. Vishwanath , State of J&K v. Sajad Ahmed Mir Union Bank of India v. M.T. Latheesh .
6. We have made a mention of the above-noted legal principles because after perusing the record of the case and hearing Shri C. Upendra, we are convinced that even though orderdated 23-4-2007 passed by the learned Single Judge in Writ Petition No. 8418 of 2007 declining to entertain the appellant's prayer for quashing communication dated 5-3-2007 and for issue of a direction to the respondents to appoint her son on compassionate grounds is not loaded with adequate reasons, the prayer of the appellant is legally untenable and the appeal is liable to be dismissed.
7. The appellant's father Shri Y.L. Sudarshan Rao, who was employed in Bharat Sanchar Nigam Limited (BSNL) is said to have disappeared on 13.09.1992. After seven years, the appellant filed Writ Petition No. 11821 of 1999 for issue of a mandamus to the respondents to grant her monetary benefits in lieu of the services rendered by her husband by contending that as per the provisions of the Evidence Act, he will be deemed to have died. By an order dated 08.08.2000, the learned Single Judge directed the respondents to grant monetary benefits to the appellant. After about four months, the appellant was informed vide letter No. DM/20 dated 30.01.2001 that she is eligible for appointment on compassionate grounds. She did not accept the offer on the ground of poor health and requested that her son - Y.Jagadeesh may be considered for appointment after passing SSC examination. The latter passed SSC examination in March 2004. Thereafter, the appellant submitted application dated 21.07.2004 for her son's appointment on compassionate ground. This was reiterated vide letter dated 09.03.2005. She also sent legal noticedated 30.06.2006 and then filed Writ Petition No. 21663 of 2003 for issue of a mandamus to the respondents to appoint her son on compassionate ground. By an order dated 18.10.2006 passed in W.P.M.P.No.27468 of 2006 in Writ Petition No. 21663 of 2006, the learned Single Judge directed the respondents to consider the case of the appellant's son for appointment on compassionate ground.
8. In compliance of the direction given by this Court, the High Power Committee of BSNL considered the case of Y. Jagadeesh for appointment on compassionate ground, but rejected the same. This was conveyed to the appellant by Chief General Manager, BSNL, Andhra Pradesh vide his letter dated 05.03.2007, the relevant portion of which is extracted below:
The High Power Committee, after taking into account the assets, liabilities and all other relevant factors, assessed the financial condition of the family. The Committee also considered the objective of the scheme of compassionate appointment wherein it is provided that the whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis and to relieve the family from financial destitution and to help it get over the emergency. Only dependants of an employee dying in harness leaving his family in penury and without any means of livelihood can be appointed on compassionate grounds. After careful examination of all aspects of the case, the committee came to the conclusion that the applicant is quite grown up, working as Salesman in Tirumala Srinivasa Pharmaceuticals and thus able to self-sustain. You are getting family pension and you have no other liability as your daughter is married and living independently. As such, the family of the deceased cannot be considered to be living in penury. Therefore, the request of compassionate appointment of your son is rejected.
9. During the pendency of Writ Petition No. 21663 of 2006, the appellant filed Writ Petition No. 8418 of 2007 for quashing the decision contained in communication dated 05.03.2007. The learned Single Judge dismissed the second writ petition by recording the following observations:
Admittedly, the petitioner filed W.P.No.21663 of 2006 seeking compassionate appointment to her son on account of the death of her husband. Pending the writ petition, this Court, in W.P.M.P.No.27468 of 2006, dated 18.10.2006, directed the respondent to consider the case of the son of the petitioner to be appointed in the vacancy of her husband late Y.L. Sudershan Rao, who died in harness in the year 1992. Pursuant to the said direction, the1st respondent passed the impugned order rejecting her claim of compassionate appointment to her son. Since W.P.No.21663 of 2006, which is filed for compassionate appointment, is pending consideration, the present writ petition filed by the petitioner seeking the self-same relief as claimed therein, is not maintainable. However, the petitioner is at liberty to move an application in the very same writ petition, if she is so aggrieved, but not by way of filing another writ petition.
10. We have heard Shri C. Upendra and scrutinized the record. In our opinion, the appeal is liable to be dismissed. The reasons for this conclusion are:
1) The appellant did not have the locus to file writ petition on behalf of her son viz., Y. Jagadeesh who became major on 26-2-2000 (date of birth of Y. Jagadeesh is 27-2-1982). Once the dependant son of the deceased employee became major, he can sue the respondents in his own right and seek a direction for his appointment on compassionate ground. His mother cannot espouse his cause by independently filing writ petition under Article 226 of the Constitution of India.
2) Both the writ petitions filed by the appellant were highly belated and the same were liable to be dismissed because no explanation has been given by the appellant for not seeking the Court's intervention after her son attained majority. The record of the case shows that Shri Y. Jagadeesh attained majority on 12.02.2000 and the first writ petition was filed in 2006 without any tangible explanation as to why he could not apply for compassionate appointment immediately after his attaining majority or within a reasonable time thereafter. In our opinion, the long time gap of six years is fatal to the claim of the appellant and her son for the latter's appointment on compassionate ground.
3) If the family of late Shri Y.L. Sudarshan Rao could sustain for a period of 14 years after his disappearance and seven years counted from his deemed civil death i.e., 1999, it is reasonable to believe that they were not in dire need of sustenance.
4) The writ petitions filed by the appellant suffer from the fatal defect of non-impleadment of BSNL as party respondent. The Assistant General Manager (Administration)/Chief General Manager, BSNL, Andhra Pradesh Circle and the General Manager, Telecom District, Visakhapatnam are officers of BSNL and not the BSNL which has a juristic personality and which can sue and be sued in its own name. If the learned Single Judge was to entertain the appellant's prayer and a direction was issued for appointment of her son on compassionate ground, his employment would have been in the services of BSNL and not its officers. The salary payable to the appointee would have been drawn from the funds of BSNL and not from the salary of the particular officer. Therefore, non-impleadment of BSNL is sufficient to non-suit the appellant. In this connection, we may usefully refer to the judgments of the Supreme Court in Ranjeet Mal v. General Manager, Northern Railway, New Delhi and Chief Conservator of Forests v. Collector . The facts of the case in Ranjeet Mal's case (supra) show that the appellant had challenged his removal from service. A learned Single Judge of Rajasthan High Court dismissed the writ petition on the ground that the Union of India has not been impleaded as party to the writ petition and that the impleadment of General Manager, Northern Railway was not sufficient. The Division Bench affirmed the decision of the learned Single Judge. Before the Supreme Court it was argued that the General Manager is the authority to hear appeal etc. against the removal and, therefore, non-impleadment of the Union of India was not fatal. The Supreme Court rejected the contention and held:
1) It cannot be disputed that the appellant was a servant of the Union. It is equally indisputable that any order of removal is removal from service of the Union. The appellant challenged that order, Any order which can be passed by any Court would have to be enforced against the Union. The General Manager or any other authority acting in the Railway Administration is as much a servant of the Union as the appellant was in the present case.
2) The Union of India represents the Railway Administration. The Union carries administration through different servants. These servants all represent the Union in regard to activities whether in the matter of appointment or in the matter of removal. It cannot be denied that any order which will be passed on an application under Article 226 which will have the effect of setting aside the removal will fasten liability on the Union of India, and not on any servant of the Union. Therefore, from all points of view, the Union of India was rightly held by the High Court to be a necessary party. The petition was rightly rejected by the High Court.
11. In Chief Conservator of Forests v. Collector (supra), the Supreme Court considered and upheld the objection taken on behalf of the respondents to the maintainability of the writ petition filed by Chief Conservator of Forests as well as the appeal arising therefrom. Paragraphs 12 and 13 of the judgment, which contained discussion on the subject, are extracted below:
12. It needs to be noted here that a legal entity - a natural person or an artificial person - can sue or be sued in his/its own name in a court of law or a tribunal. It is not merely a procedural formality but is essentially a matter of substance and considerable significance. That is why there are special provisions in the Constitution and the Code of Civil Procedure as to how the Central Government or the Government of a State may sue or be sued. So also there are special provisions in regard to other j uristic persons specifying as to how they can sue or be sued. In giving description of a party it will be useful to remember the distinction between misdescription or misnomer of a party and misjoinder or non-joinder of a party suing or being sued. In the case of misdescription of a party, the court may at any stage of the suit/ proceedings permit correction of the cause-title so that the party before the court is correctly described; however, a misdescription of a party will not be fatal to the maintainability of the suit/proceedings. Though Rule 9 of Order 1 CPC mandates that no suit shall be defeated by reason of the misjoinder or non- joinder of parties, it is important to notice that the proviso thereto clarifies that nothing in that Rule shall apply to non-joinder of a necessary party. Therefore, care must be taken to ensure that the necessary party is before the court, be it a plaintiff or a defendant, otherwise, the suit or the proceedings will have to fail. Rule 10 of Order 1 CPC provides remedy when a suit is filed in the name of the wrong plaintiff and empowers the court to strike out any party improperly joined or to implead a necessary party at any stage of the proceedings.
13. The question that needs to be addressed is, whether the Chief Conservator of Forests as the appellant-petitioner in the writ petition/appeal is a mere misdescription for the State of Andhra Pradesh or whether it is a case of non-joinder of the State of Andhra Pradesh - a necessary party. In a lis dealing with the property of a State, there can be no dispute that the State is the necessary party and should be impleaded as provided in Article 300 of the Constitution and Section 79 CPC viz. in the name of the State/Union of India, as the case may be, lest the suit will be bad for non-joinder of the necessary party. Every post in the hierarchy of the posts in the government set-up, from the lowest to the highest, is not recognised as a juristic person nor can the State be treated as represented when a suit/proceeding is in the name of such offices/posts or the officers holding such posts, therefore, in the absence of the State in the array of parties, the cause will be defeated for non-joinder of a necessary party to the lis, in any court or tribunal....
12. We are further of the view that the reason assigned in communication dated 5-3-2007 for not entertaining the appellant's claim for compassionate appointment of her son are germane to the policy framed by the management of BSNL and in exercise of the power of judicial review vested in it under Article 226 of the Constitution of India, this Court cannot sit in appeal over the judgment of the competent authority.
13. No other point has been argued.
14. For the reasons stated above, the appeal is dismissed.
15. As a sequel to dismissal of the appeal, WAMP No. 1257 of 2007 filed by the appellant is also dismissed.