Andhra HC (Pre-Telangana)
Killi Venkata Suri Apparao vs The Anakapalli Rural Electrical Coop. ... on 30 April, 2015
Author: R.Kantha Rao
Bench: R.Kantha Rao
HONBLE SRI JUSTICE R.KANTHA RAO
Writ Petition No.9261 of 2014
30-4-2015
Killi Venkata Suri Apparao Petitioner
The Anakapalli Rural Electrical Coop. Society, Reg.No.B.1539, Rep. by its MD,
Kasimkota, Anakapalli, Visakhapatnam; and another Respondents
Counsel for the Petitioner:Sri Prakash Buddarapu
Counsel for Respondents 1&2: Sri A.Satya Prasad,
Senior Counsel,
Representing Sri N.Pramod
<Gist:
>Head Note:
? Cases referred:
1. (1981) 1 SCC 722
2. (2009) 15 SCC 221
3. (2002) 5 SCC 111
4. 1994 (2) LAWS (SC) 132
5. 2004 (8) LAWS (SC) 102
6. 2006 (8) LAWS (SC) 93
HONBLE SRI JUSTICE R.KANTHA RAO
Writ Petition No.9261 of 2014
Date: 30-4-2015
Order:
The petitioners father Killi Samudram was working as
a Senior Lineman in the 1st respondent-The Anakapalli
Rural Electrical Cooperative Society (the Society, for short)
and died on 05-8-2010 while in service. The petitioner, who
is the son of late Killi Samudram, submitted
representations to the 1st respondent-Society
seeking appointment on compassionate grounds.
The representations have not been considered by the
1st respondent-Society. Thereafter, he filed Writ Petition
No.6954 of 2013 against the 1st respondent-Society and this
Court disposed of the said writ petition without going into
merits of the case directing the 1st respondent-Society to
consider the representations of the petitioner and to pass
appropriate orders. Thereafter, the 1st respondent-Society
issued proceedings in the month of September, 2013
informing the petitioner that there is no possibility for
providing employment in the Society on compassionate
grounds as the representations made by the petitioner have
not been considered by the Managing Committee on the
ground that the family of the deceased employee was given
all terminal benefits including family pension unlike the
other employees retired from service of the Society on
superannuation. The said rejection order is challenged in
the present writ petition seeking a Writ of mandamus by
declaring the same as illegal and to issue a direction to the
1st respondent-Society to provide employment to the
petitioner on compassionate grounds.
2. According to the petitioner, the 1st respondent-
Society without regularising the services of several
employees has been issuing appointments to certain
individuals who never worked in the Society and the said
issue was subject matter of a writ petition before this Court.
Thus, it is the version of the petitioner that the
1st respondent-Society has been recruiting non-working and
ineligible candidates but inspite of the direction issued by
this Court in the aforementioned writ petition, rejected the
representation made by the petitioner in an illegal and
arbitrary manner.
3. Nextly, it is submitted that the 1st respondent-
Society is a Rural Electrical Cooperative Society formed with
an object of distributing power to the consumers within the
area of 5 Mandals and has a turnover of Rs.3 Crores per
month. The Society purchases power from the Eastern
Power Distribution Company Limited (EPDCL) and
it discharges a public function by distributing electricity to
its consumers/members and is obligated to strictly comply
with the statutory process and rules for the purpose of
making the recruitment. It is further submitted that the
1st respondent-Society is following not only the service
conditions applicable to EPDCL but also paying the salaries
on par with the employees of EPDCL and therefore, it is
duty bound to give appointments on compassionate
grounds to the legal heirs of employees who died in harness
as in EPDCL.
4. The respondents filed a Counter Affidavit
contending, inter alia, as follows:
The relief sought for by the petitioner against the
respondents in the writ petition under Public Law is not
maintainable inasmuch as the 1st respondent-Society was
registered under the provisions of the Andhra Pradesh
Cooperative Societies Act, 1964 (the APCS Act, for short)
with an object of providing low cost energy and power
supply. The Society was established in the year 1974 when
the rural areas of the State in general were not having
access to the electricity without there being share capital of
any Governmental organization or State. It is not
an instrumentality of the State as defined under Article 12
of the Constitution of India and the State has no pervasive
control over the 1st respondent-Society. The petitioner has
no vested right much less any statutory right to impugn the
action of the respondents in rejecting his claim for
compassionate appointment by invoking the extraordinary
jurisdiction of this Court under Article 226 of the
Constitution of India. In the absence of any specific
guidelines or scheme adopted by the Society in its bye-laws
in relation to compassionate appointments, the petitioner
cannot seek any relief in the present writ petition. Since
the bye-laws of the Society do not provide for making any
compassionate appointments, the Managing Committee
cannot be expected to act in contravention of bye-laws of
the Society to defeat its objects and structure. As regards
appointing certain individuals in the Society, it is submitted
that the relief sought for in the present writ petition has
nothing to do with the regularization sought by the workers
who have been working continuously for several years
which is the subject matter of another writ petition.
5. It is further contended that the petitioners father
died at the fag end of his service and the loss of his income
on account of his death cannot be said to impair the
sustenance of the petitioner and his family and therefore,
the petitioner has no right to seek compassionate
appointment in the Society. Contending as such, the
respondents sought to dismiss the writ petition.
6. I have heard Sri Prakash Buddarapu, learned
counsel appearing for the petitioner and Sri A.Satya Prasad,
learned Senior Counsel for the respondents.
7. Two issues arise for consideration in the present
writ petition. The first one is whether the 1st respondent-
Society can be regarded as a State or Authority as defined
in Article 12 of the Constitution of India so as to enable the
petitioner to invoke the jurisdiction of this Court under
Article 226 of the Constitution of India for issuance of
a direction to the 1st respondent-Society to provide him
compassionate appointment. The other is whether the
petitioner has a right to claim employment in the Society on
compassionate grounds on the ground that his father died
in harness while working in the Society.
8. The learned counsel appearing for the petitioner
submits that the Society having regard to its objects and
functions discharges a public duty and therefore, it is an
instrumentality of the State within the meaning of Article 12
of the Constitution of India.
9. On the other hand, the learned Senior Counsel for
the 1st respondent-Society would submit that the Society
was formed in the year 1974 with an object of providing
more efficient service of power supply to the members of the
Society, the bye-laws do not provide for any appointments
on compassionate grounds, it does not discharge any public
function and therefore, it does not come under the
expression the instrumentality of the State and therefore,
the writ petition itself is not maintainable.
10. In AJAY HASIA v. KHALID MUJIB
SEHRAVARDI , the Supreme Court laid down the test for
determining if an authority is within the definition of State
in Article 12 of the Constitution of India is whether it is an
instrumentality or agency of the Government. The Supreme
Court held as follows:
It is immaterial whether the corporation is created by
a statute or under a statute, the test is whether it is an
instrumentality or agency of the Government and not
as to how it is created, the inquiry has to be not as to
how the juristic person is born but why it has been
brought into existence. The corporation may be
a statutory corporation created by a statute or it may
be a Government company or a company formed under
the Companies Act, 1956 or it may be a society
registered under the Societies Registration Act, 1860 or
any other similar statute. Whatever be its genetical
origin, it would be an authority within the meaning of
Article 12 of the Constitution of India if it is
an instrumentality or agency of the government and
that would have to be decided on proper assessment of
the facts in the light of the relevant factors.
The concept of instrumentality or agency of the
government is not limited to a corporation created by
a statute but is equally applicable to a company or
society and in a given case it would have to be decided,
on consideration of the relevant factors, whether the
company or society is an instrumentality or agency of
the government so as to come within the meaning of
the expression authority in Article 12 of the
Constitution of India.
11. The Supreme Court further held that the definition
of State in Article 12 of the Constitution of India which
includes an authority within the territory of India or under
the control of the Government of India is limited in its
application only to Part III and by virtue of Article 36,
to Part IV: it does not extend to the other provisions of the
Constitution and hence a juristic entity which may be
State for the purpose of Parts III and IV would not be so
for the purpose of Part XIV or any other provision of the
Constitution. (Emphasis
added)
12. Similarly, in M.P. STATE COOP. DAIRY
FEDERATION LTD. v. RAJNESH KUMAR JAMINDAR ,
the Supreme Court held as follows:
The Madhya Pradesh State Cooperative Dairy Federation
Limited is covered by the definition of State, held that
having regard to the history of the Federation, it is clear that
the Federation was a part of the department of the
Government. It not only carries on commercial activities,
it works for achieving the better economic development of
a section of the people. It seeks to achieve the principles
laid down in Article 47 of the Constitution of India viz.,
nutritional value and health. It undertakes training and
research work. Guidelines issued by it are binding on the
societies. It monitors the functioning of the societies under
it. It is an apex body. It must, therefore, be held that the
appellant would come within the purview of the definition of
State as contained in Article 12 of the Constitution of
India.
13. Basing on the above two judgments, the learned
counsel appearing for the petitioner would submit that the
1st respondent-Society is an authority under the State
within the meaning of Article 12 of the Constitution of India
and therefore, the writ petition is maintainable.
14. As per the law laid down by the apex Court,
the test to determine whether the 1st respondent-Society is
an instrumentality or agency of the State is not as to how
it is created but it has to be decided on proper assessment
of its objectives and functions and also having regard to the
extent of control of the Government over the 1st respondent-
Society.
15. In PRADEEP KUMAR BISWAS v. INDIAN
INSTITUTE OF CHEMICAL BIOLOGY relied on by the
petitioner, the Supreme Court took the view that as
formulated in AJAY HASIA (1 supra) that a body when can
be said to fall within the scope of definition of the State, the
tests to determine are not a rigid set of principles so that
a body falling within any one of them must be considered to
be State. According to the Supreme Court, the question in
each case would be: whether on facts the body is
financially, functionally and administratively dominated by,
or under the control of the Government, such control must
be particular to that body and must be pervasive.
If the answer is yes, then the body is a State. The Supreme
Court further was of the view that however, mere regulatory
control, whether statutory or otherwise are not sufficient,
an instrumentality or agency of the State is not necessarily
an authority within Article 12 of the Constitution of India.
To be an authority, the entity should have been created by
or under a statute and should be functioning with liability
or obligations to the public. In either case it should be
entrusted with functions which are governmental or closely
associated therewith by being of public importance or
fundamental to the life of the people. Whether an entity is
an authority cannot be answered by applying Ajay Hasia
tests which are relevant only for determining whether an
entity is instrumentality or agency of State. According to
the Supreme Court, the burden to prove an entity having
an independent legal existence to be an instrumentality or
agency of the State lies on the person making such
allegation. (Emphasis
added)
16. Therefore, no straight jacket formula can be laid
down as to under what circumstances a society or
corporation can be regarded as an authority or
instrumentality of the State within the meaning of Article 12
of the Constitution of India.
17. In the instant case, the 1st respondent-Society was
formed by registering itself under the provisions of the
Andhra Pradesh Cooperative Societies Act, 1964 and was
established in the year 1974 with the object of providing low
cost energy and power supply to the rural areas.
The 1st respondent-Society does not have share capital of
any governmental organisation/State. It is governed by its
own bye-laws and perusal of the bye-laws does not show
that it is under the pervasive control of the Government.
Since the petitioner contends that the 1st respondent-
Society is an instrumentality of the State, the burden is
on him to place on record the relevant factors for the
purpose of characterising the 1st respondent-Society as
State within the meaning of Article 12 of the Constitution
of India. The petitioner has not furnished any material
showing that there is any financial contribution made by
the State and also the nature and extent of the control by
the State in the functions discharged by the 1st respondent-
Society. From the bye-laws of the 1st respondent-Society,
it is clear that there is no interference by the functionaries
of the State in the day-to-day management of the affairs of
the 1st respondent-Society. Merely because the
1st respondent-Society renders service to the people in the
rural areas, by providing low cost energy and power supply,
the said objective or function by itself does not characterise
the 1st respondent-Society as an authority within the
meaning of State in Article 12 of the Constitution of India.
Therefore, in the considered opinion of this Court, the
1st respondent-Society cannot be regarded as an agency or
instrumentality of the State so as to come under the
expression authority within the meaning of Article 12 of
the Constitution of India.
18. The next question to be determined is whether the
petitioner is entitled to claim compassionate appointment in
the 1st respondent-Society. In LIFE INSURANCE
CORPORATION OF INDIA v. ASHA RAMCHHANDRA
AMBEKAR , the Supreme Court took the view that
a direction to the Life Insurance Corporation of India to
appoint the 2nd respondent on compassionate grounds is
against the statutory provisions and therefore the Court
should not have directed the appointment on
compassionate grounds. According to the Supreme Court,
the juristic mandamus cannot be exercised in that fashion
and the Court should have merely directed the
consideration of the claim of the 2nd respondent.
In the opinion of the Supreme Court straightaway directing
the appointment would only put the appellant Corporation
in piquant situation.
19. In PUNJAB NATIONAL BANK v. ASHWINI
KUMAR TANEJA , the Supreme Court took the view that
the object of appointment on compassionate grounds is to
enable the family to get over the sudden financial crisis on
account of the death of employee in harness but such
appointments on compassionate grounds have to be made
in accordance with the rules and regulations or
administrative instructions taking into consideration the
financial condition of the family of the deceased.
20. In UNION BANK OF INDIA v. M.T.LATHEESH ,
the Supreme Court held that it is settled law that the
compassionate appointment being an exception to the
general rule the appointment has to be exercised only in
warranting situations and circumstances existing in
granting appointment and guiding factors should be
financial condition of the family.
21. Thus, the legal representatives of the deceased
employee cannot claim compassionate appointment as
a matter of right. The case of an individual for
compassionate appointment can however be considered by
the Department, in exceptional cases where the family of
the deceased employee is found to be in financial crisis and
when compassionate appointment is required to enable the
family to get over the sudden financial crisis arising out of
the sudden death of the employee. For this purpose, the
person claiming compassionate appointment has to
necessarily establish that the deceased employee died in
harness and the compassionate appointment is absolutely
necessary for the family to get over the sudden financial
crisis. The burden to show that his case falls under the
eligibility criteria is on the person who claims
compassionate appointment. In the instant case, the
petitioner merely stated in the Affidavit filed in support of
the writ petition that his father died while in service. He did
not place any material showing that on account of the death
of his father, his family was thrown into sudden financial
crisis.
22. Admittedly, the petitioners father died at the fag
end of the service. All his terminal benefits were paid to the
family members. Further, in the bye-laws of the
1st respondent-Society there is no provision for making
compassionate appointment. In the absence of any
provision in the bye-laws of the 1st respondent-Society
enabling it to make appointments on compassionate
grounds, the legal representatives of the deceased employee
cannot make a claim of compassionate appointment as
a matter of right. This Court in the earlier writ petition i.e.
W.P.No.6954 of 2013 has already issued a direction to
consider the case of the petitioner. In pursuance thereof,
the petitioner made a representation and the
1st respondent-Society rejected the claim of the petitioner
stating that in the absence of any specific guidelines or the
scheme adopted by the Society in its bye-laws in relation to
compassionate appointment, the petitioner cannot claim the
compassionate appointment. Since the claim of the
petitioner was already rejected on the ground that the bye-
laws of the 1st respondent-Society do not provide for making
any compassionate appointment and that the Managing
Committee of the Society cannot be expected to act in
contravention of bye-laws of the Society, no further
direction can be given in the present writ petition to provide
appointment to the petitioner on compassionate grounds.
23. For the foregoing reasons, the writ petition fails
and the same is dismissed. The miscellaneous petitions,
if any, pending in this writ petition shall stand closed.
No costs.
___________________
R.KANTHA RAO, J.
30th April, 2015.