THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.1019 OF 2020
ORDER:
This writ petition is filed under Article 226 of the Constitution of India seeking the following relief:
"to issue an order, writ or direction more particularly in the nature of Writ of Mandamus declaring the action of the 2nd Respondent in issuing Memo No.Ser.III(2)/473512/2017 dated 04.04.2017 rejecting the petitioner's claim for compassionate appointment is illegal and arbitrary and unconstitutional and violative of Article 14, 19 and 21 of Constitution of India and consequently declare that the petitioner is entitled to be appointed on compassionate grounds in any suitable and regular NMR post as per her eligibility consequent to the death of her husband Late K.Hussen (NMR in Time Scale Office Sub Ordinate in PR) with all consequential benefits."
It is the case of the petitioner that her husband K.Hussen (NMR in Time Scale Office Sub-ordinate in PR) worked as NMR watchman in the office of Panchayat Samiti, Parchuru since 11.08.1983. The authorities suspended her husband from his service on 01.05.1988. Thereafter, her husband filed Writ Petition 8315 of 1988 before this Court, and this Court allowed the said writ petition directed the authorities to reinstate him into service. Thereafter, the authorities issued proceedings vide Letter No.A5/4095/89 dated 07.09.1989 appointed the husband of the petitioner as NMR watchman in Panchayat Raj Guest House, Chirala. The husband of the petitioner was appointed as NMR watchman vide G.O.Rt.No.1225 dated 22.08.2009 along with some other persons. Respondent No.3 issued proceedings vide Rc.No.A1/Estt/09 dated 13.10.2009 for sanctioning of payment of minimum time scale + D.A. and he worked as NMR on payment of Time scale office subordinate in the office of Deputy Executive Engineer, Panchayat Raj department. The husband of the petitioner died on 28.08.2016 while he was in service leaving behind him his two daughters and the petitioner. But they are unable to MSM,J WP_1019_2020 2 maintain themselves as they have no earning capacity and they are very poor persons. The petitioner and her two daughters have no other means to eke out livelihood except widow pension. Therefore, the petitioner made an application dated 21.11.2016 requesting the authorities to provide compassionate appointment as watchwoman on outsourcing basis, consequent upon to the demise of her husband.
The petitioner is entitled for compassionate appointment in any suitable post as per her eligibility consequent upon the death of her husband with all consequential benefits, but respondent No.2 issued memo No.Ser.III(2)/473512/2017 dated 04.04.2017 rejecting her request for compassionate appointment, without recording any reasons. In the said memo, respondent No.3 was directed to take necessary action to accommodate the petitioner on outsourcing basis as watchwoman/sweeper on humanitarian grounds since she has no livelihood to survive. But as on date, no action was taken by respondent No.3. Therefore, in action of respondent Nos.2 to 4 is illegal, requested to allow the writ petition.
Sri Rambabu Koppineedi, learned counsel for the petitioner, reiterated the contentions urged in the writ petition.
Learned Government Pleader for Services-III opposed the writ petition since there was no relationship of employer and employee between the respondents and the petitioner since the deceased was only NMR. Though minimum time scale is extended to him, the scheme of compassionate appointment cannot be invoked to appoint the petitioner on outsourcing basis at least.
Admittedly, the husband of the petitioner died while working as NMR watchman, but minimum time scale is extended in terms of G.O.Rt.No.1225 dated 22.08.2009, there is a relationship of master and servant, but not permanent employee under the employer, MSM,J WP_1019_2020 3 thereby the scheme of compassionate appointment is not extended to the NMRs. Consequently, the petitioner being the wife of the deceased NMR is not entitled to claim compassionate appointment. Unless the petitioner fulfilled the norms, the Court cannot issue a direction for her appointment on compassionate grounds.
Learned Government Pleader for Services-III placed on record the judgment of the Apex Court in "N.C.Santhosh v. State of Karnataka1", wherein it is held as follows:
"In the most recent judgment in "State of Himachal Pradesh v. Shashi Kumar2" the earlier decisions governing the principles of compassionate appointment were discussed and analysed. Speaking for the bench, Dr. Justice D.Y. Chandrachud reiterated that appointment to any public post in the service of the State has to be made on the basis of principles in accord with Articles 14 and 16 of the Constitution and compassionate appointment is an exception to the general rule. The Dependent of a deceased government employee are made eligible by virtue of the policy on compassionate appointment and they must fulfil the norms laid down by the State's policy.
Applying the law governing compassionate appointment culled out from the above cited judgments, our opinion on the point at issue is that the norms, prevailing on the date of consideration of the application, should be the basis for consideration of claim for compassionate appointment. A dependent of a government employee, in the absence of any vested right accruing on the death of the government employee, can only demand consideration of his/her application. He is however disentitled to seek consideration in accordance with the norms as applicable, on the day of death of the government employee."
But, the said judgment is not directly on the issue.
In "the Vice Chairman, Vijayawada v. V.Padma3" the High Court of Judicature at Hyderabad held as follows:
"It is not in dispute that there is no scheme in existence which provides for compassionate appointment of dependants of deceased NMR employees whose services have not been regularised. Yet the jurisdiction of the Tribunal was invoked claiming compassionate appointment. No person can approach the court seeking a relief when he does not have a right which can be enforced through the Court. (State of Gujarat v. Arvindkumar T. Tiwari4). It may be that a provision for compassionate appointment is made as a measure of social 1 AIR 2020 SC 1401 2 (2019) 3 SCC 653 3 2015(4)ALT311 4 (2012) 9 SCC 545 MSM,J WP_1019_2020 4 benefit, but it does not mean that the court should pass an order for compassionate appointment despite the fact that the conditions precedent therefor have not been satisfied. Courts and Tribunals cannot ignore the mandatory provisions of the Rules, and direct compassionate appointment, on sympathetic considerations. They do not have the power to issue direction to make appointment granting relaxation of the eligibility criteria or in contravention thereof.
Courts and Tribunals should not fall prey to the sympathy syndrome, and issue directions for compassionate appointments, without reference to the prescribed norms. Every such act of undue sympathy and compassion, whereby directions are issued for appointment on compassionate grounds dehors the prescribed procedure, could deprive a needy family, requiring financial support, of the opportunity of seeking employment, and thereby pushing into penury a truly indigent, destitute and impoverished family.
Discretion is, therefore, ruled out. So also misplaced sympathy and compassion. In the absence of any scheme, providing for compassionate appointment for dependants of deceased NMR employees, the Tribunal has erred in directing the petitioners herein to consider the case of the 1st respondent on compassionate grounds."
In view of the law declared in the said judgment (referred supra), the petitioner is not entitled for benefit of compassionate appointment. However, the petitioner is not claiming regular employment, but requesting appointment on outsourcing basis. Therefore, the petitioner is directed to approach the Andhra Pradesh Corporation for Outsourced Services and on submission of her application, the concerned authorities are directed to consider her application on humanitarian grounds only.
In the result, the writ petition is dismissed while permitting the petitioner to approach the Andhra Pradesh Corporation for Outsourced Services and on submission of her application, the concerned authorities are directed to consider her application on humanitarian grounds only. No costs.
The miscellaneous petitions pending, if any, shall also stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 12.02.2021 Ksp