Andhra HC (Pre-Telangana)
P.S. Seetha Lakshmi vs The Chairman, Visakhapatnam Port ... on 1 April, 1992
Equivalent citations: 1992(2)ALT596, (1993)ILLJ270AP
ORDER
1. Petitioner is a widow of late Sri. R. Swaminadhan, who was a Crane Driver Grade-11 in the C.M.E. department, Vishakhapatnam Port Trust. He died on April 4, 1983 after completing 20 years of service. The family consists of the petitioner, 2 minor daughters and one minor son. Petitioner submits that her husband left no as sets, but bad liabilities which are to be met. She had therefore sought employment under the respondent in terms of instructions issued in Memo. No. 14/10/71 Estt. Dated January 1972 and in O.M. No. 14014/6/86 Estt. dated June 30, 1987. Government of India granted exemption from application of ban which was imposed in filling up posts on compassionate considerations in O.M. No. 10014/1/84 Estt. (d), Ministry of Home Affairs on March 12, 1984. Petitioner has passed S.S.L.C. and requested the 2nd respondent to provide suitable job on compassionate relaxation of the recruitment rules. The 2nd respondent recommended her application for appointment on February 22, 1984 without reference to the Employment Exchange. Apparently, pursuant thereto, the 3rd respondent in his letter dated September 3, 1985 called her for interview on September 17, 1985 for appointment as Ayah. Even though petitioner appeared, she was not appointed. She therefore filed a fresh representation on April 7, 1986 before the 1st respondent requesting for appointment on compassionate grounds. In the letter dated June 19, 1986 the 2nd respondent informed the petitioner that the 1st respondent had not granted relaxation of educational qualifications and that she should acquire the minimum educational qualification within a period of 2 years from the date of appointment to the post of clerk, by passing PUC/Intermediate. Petitioner could not naturally acquire that qualification. Later, the 3rd respondent called her again for interview on September 10, 1986 for appointment as Ayah. Though she was interviewed, she was not selected or appointed. Still later, the 3rd respondent by his letter dated December 5, 1986 required the petitioner to appear for interview for appointment as Sweeper. She attended the interview. The 3rd respondent appointed her as Sweeper (female) by order dated January 2, 1987. Petitioner submits that she was appointed as a casual sweeper in a permanent vacancy which arose due to promotion of one Smt. B. Parvathi and which is evident from proceedings of the 3rd respondent dated January 27, 1987. Petitioner submits that in terms of Government orders relating to compassionate appointment, she ought to have been appointed as an Ayah by creating a supernumerary post, if need be, in relaxation of the rules and orders governing recruitment/appointment. In March, 1990 petitioner made a request of regularisation of her services. The Deputy Conservator of the Port Trust in letter dated March 15, 1991 required the petitioner to produce the original certificates on March 26, 1991 for scrutiny, for appointment as Peon in Class-IV posts. Petitioner attended the interview and produced all the documents. She was required to appear before the Staff Selection Committee on May 27, 1991 which she did. But she was not selected. The 3rd respondent in his letter dated July 26, 1991 required the petitioner and some other persons to appear for interview on August 6, 1991 for appointment as Peon. Petitioner appeared again but she was not selected. Petitioner submits that in spite of her entitlement to be appointed in relaxation of the rules as Ayah or a Peon in the vacancy which had arisen immediately after the death of her husband, she was appointed as a casual labourer from January 12, 1987 that too temporarily. She submits that non-consideration of her appointment on compassionate grounds is illegal and arbitrary. It is in these circumstances that the petitioner seeks a declaration that the action of the respondents in continuing her as a casual sweeper is illegal and void and a further direction to appoint her as a peon/attender or Ayah in relaxation of recruitment rules with effect from September 17, 1985 with all consequential benefits.
2. Respondents have filed a counter affidavit. They assert that there was no interview conducted on September 17, 1985. It was conducted for selection to the post of Ayah only on September 10, 1986 for 48 general candidates. 57 candidates were called for interview and only 49 candidates turned up including the petitioner. 6 candidates were found suitable and were selected for 6 posts and 3 candidates including the petitioner were empanelled. It is asserted that she could not be appointed during the currency of the panel as no vacancy was available. Respondents assert further that petitioner was interviewed only once for appointment as Ayah. Subsequently, she was interviewed along with a number of other applicants for appointment as casual labourer (female-sweeper) on December 19, 1986 and she was appointed pursuant thereto with effect from January 12, 1987. Respondents assert that the vacancy in which she was appointed was not a regular vacancy. Respondents also submit that eventhough petitioner was called for appointment as Ayah and peon she was not selected by the Selection Committee, as such she was not appointed as Ayah or peon. It is also submitted that she was found unsuitable for appointment as peon at the interview conducted on August 12, 1991. In paragraph 7 of the counter, respondents have reiterated that the post in which petitioner was appointed was not a permanent one and it is of casual nature. It is also submitted that petitioner was not found suitable in the selections held for the posts of Ayah and peon and that no injustice was done to the petitioner by the respondents.
3. Counsel for the petitioner seems to be right in his submission that the respondents acted in an arbitrary and unreasonable manner in refusing to appoint the petitioner on compassionate considerations as Ayah or peon, pursuant to the selection conducted on September 10, 1986. Even though respondents have asserted that the petitioner was found to be unsuitable for appointment in that selection, it is clear from page 4 of the material papers containing proceedings of the Selection Committee held on September 10, 1986 that she was selected and kept in the panel from out of 48 candidates who had appeared. The assertion that she was found to be unfit is therefore prima facie untrue and incorrect. It is clear that petitioner was found to be suitable with 52% marks applying ordinary standards for selection. What the petitioner sought was compassionate appointment. It is not revealed by the counter affidavit or the documents produced along with it whether the fact that what the petitioner claimed was compassionate appointment in terms of the Government orders was adverted to by the respondents. Petitioner is right in her submission that it was only due to the negative attitude of the respondents in not considering her case for appointment on compassionate considerations that in spite of her selection and appointment on September 10, 1986, she was not given employment.
4. The question of the scope of appointment on compassionate grounds was considered by the Supreme Court in Smt. Sushma Gosain and others v. Union of India 1990 - I - LLJ - 169. The Supreme Court observed (p. 170) :
"It seems to us that the High Court has made the order in a mechanical way and, if we may say so, the order lacks the sense of justice. Sushma Gosain made an application for appointment as Lower Division Clerk as far back in November, 1982. She had then a right to have her case considered for appointment on compassionate grounds under the aforesaid Government Memorandum. In 1983, she passed the trade test and the interview conducted by the DGBR. There is absolutely no reason to make her to wait till 1985 when the ban on appointment of ladies was imposed. The denial of appointment is patently arbitrary and cannot be supported in any view of the matter."
The Court proceeded to observe (p. 170) :
"The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such employment should therefore be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment, supernumerary post should be created to accommodate the applicant."
5. In the present case, it is clear that there was a post of Ayah available in 1986. Petitioner was qualified for the post, was interviewed and was actually empannelled on September 10, 1986. Obviously, she was found suitable. The only reason for denying her appointment was that there was no vacancy during the currency of the panel. The reason that she was not found suitable is nothing but an after-thought to justify the arbitrary and unreasonable rejection of her claim for appointment on compassionate ground to mitigate the hardship caused by the death of the bread earner of the family. It was obligatory on the part of the respondents to consider the claim on compassionate grounds with some sense of urgency and a greater sense of justice and fairness. Had it been so done, petitioner would have been appointed atleast in 1986 when she was empanelled.
6. I am of the opinion in the light of the above facts that there shall be a direction to the respondent to appoint the petitioner as Ayah/Peon/Attender with effect from September 10, 1986 on which date she was empanelled after interview. If need be, a supernumerary post in the above cadre may be created to accommodate her. Respondents shall pay her all monetary benefits consequent upon such ante-dated appointment, like refixation of pay, increments and arrears of pay. Respondents shall implement the direction within a period of one month from the date of receipt of a copy of this order. Petitioner will be entitled to costs including advocate's fee of Rs. 350/-.
7. The W.P. is disposed of as above.