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THE HON'BLE SRI JUSTICE BATTU DEVANAND
WRIT PETITION No. 10145 of 2012
ORDER:
This Writ Petition has been filed by the petitioner under Article 226 of the Constitution of India for the following relief:
"... to issue Writ, Order or Direction more particularly one in the nature of Writ of Mandamus, declaring the condition 3(b)(i) in G.O.Ms.No.378, GA(Ser-A), dated 24.08.1999, as illegal, void, unjust and violative of Articles 14 and 21 of Constitution of India and set aside the Memo No.JS(Per)/DS(E)/AS (V&R)-NT/PO- 1/718/2004, dated 03.03.2009. of the 4th respondent and consequently direct the respondents to provide employment to the petitioner on compassionate grounds and pass such other order or further orders as may be just and necessary."
2) A counter affidavit has been filed on behalf of the respondents.
3) Heard Sri K. Rama Subba Rao, learned counsel for the petitioner, Sri M. Vidya Sagar, learned Standing Counsel appearing for respondent Nos.2 to 4 and the learned 2 Government Pleader for GAD appearing for the 1st respondent.
4) The case of the petitioner is that the father of the petitioner while working as Plant Attendant in Boiler Maintenance, Stage-I, in the 4th respondent Corporation, disappeared on 26.08.2001. Immediately, the mother of the petitioner lodged a complaint before the Station House Officer, Ibrahimpatnam, to conduct enquiry which was registered as Crime No.297/2001 as a "man missing case". Thereafter, the Station House Officer, Ibrahimpatnam after conducting investigation, filed a final report on 31.12.2001 stating the case as "undetectable" and the same was informed to the 4th respondent by the Sub Inspector of Police, Ibrahimpatnam on 01.10.2002.
5) Consequently, the petitioner made a representation to the 4th respondent to provide employment under compassionate grounds on completion of 7 years period from the date of missing of his father. The 3rd respondent rejected the claim of the petitioner for compassionate appointment on the ground that there is no left over service of 7 years to his father on the date of lodging the 3 complaint. Aggrieved by the same, the present writ petition is filed.
6) In the counter affidavit filed by the respondent Nos.2 to 4, it is contended that the application of the petitioner, whose father's whereabouts are not known, was rejected vide Memo No.JS(Per)DS(E)/ AS(V&R-NT)PO-J/718/2004, dated 03.03.2009 in terms of G.O.Ms.No.378, GA(Ser-A), Dept., dated 24.08.1999 issued by the State Government, as the left over service of the missing employee is less than 7 years to retire from the date on which the FIR was filed. Therefore, the learned Standing Counsel sought dismissal of the present writ petition.
7) Learned counsel for the petitioner submits that the Memo, dated 03.03.2009 issued by the 4th respondent is illegal, arbitrary and unconstitutional. The said Memo was issued basing on the condition No.3(b)(i) in G.O.Ms.No.378, GA (Ser-A) Dept., dated 24.08.1999, which itself is illegal, void and contrary to the scheme of compassionate appointment. As and when the Government is providing employment under compassionate grounds to the spouse/ dependents of the deceased employee, who die in harness without putting any condition of length of service left over, 4 putting a condition in condition No.3(b)(i) in G.O.Ms.No.378, GA (Ser-A) Dept., dated 24.08.1999 that this benefit shall not be extended to the dependents of the Government servants, who is less than 7 years of service from the date of filing of FIR is illegal, arbitrary and against to the object of the appointment under compassionate grounds. As such, learned counsel sought to declare the condition No.3(b)(i) in G.O.Ms.No.378, GA (Ser-A) Dept., dated 24.08.1999 as illegal, arbitrary and violative of Articles 14 and 21 of the Constitution of India.
8) Learned counsel for the petitioner would submit that the Memo, dated 03.03.2009 issued by the 4th respondent in terms of condition No.3(b)(i) in G.O.Ms.No.378, GA (Ser-A) Dept., dated 24.08.1999, is liable to be set aside.
9) On the other hand, learned Standing Counsel appearing for the respondent Nos.2 to 4 submits that the application submitted by the petitioner was examined and it was rejected vide Memo No.JS(Per)/DS(E)/AS(V&R)-NT/PO- 1/718/2004, dated 03.03.2009 in terms of condition No.3(b) (i) of G.O.Ms.No.378, GA (Ser-A) Dept., dated 24.08.1999, as the left over service of Sri T. Babu Rao, Ex- PA (i.e.) father of the petitioner is less than 7 years to 5 retire from date on which the FIR was filed. As the 2nd respondent is the State owned Corporation, hence, the 2nd respondent has to follow the policy and procedure prescribed by State Government. He contended that the order impugned in the present writ petition is neither irrational nor unconstitutional. Therefore, the learned Standing Counsel sought dismissal of the writ petition.
10) Having heard the submissions of the learned counsel appearing for both sides and upon perusal of the material available on record, it is appropriate to extract the relevant condition No.3 in G.O.Ms.No.378, GA (Ser-A) Dept., dated 24.08.1999 as hereunder for proper adjudication of the issue involved in this writ petition:
3. Government after careful examination of the matter, hereby direct that compassionate appointments be provided to the dependents of the Government employees, who have disappeared and whose whereabouts are not known for more than 7 (seven) years in accordance with the existing instructions on the scheme of compassionate appointments to the dependents of deceased Government employees who die in harness, subject to the following conditions:6
(a) x x x x x x
(b) This benefit shall not be applicable to the case of a Government servant:-
(i) who had less than 7 (seven) years to retire on the date from which the FIR is filed: and/or
(ii) x x x x
11) As per the above mentioned condition, if a government servant, who had less than 7 (seven) years of service for retirement on the date from which the FIR is filed on the ground that the said Government servant has been missing, the benefit of compassionate appointment shall not be applicable to the spouse and dependents of the said Government employee.
12) As seen from the record that the Government is providing employment under compassionate grounds to the spouse/dependent of the deceased employee, who died during the service without stipulating any condition of length of service left over. The only condition is that they shall submit application within a period of one year from the date of death of the Government employee. 7
13) But in so far as missing cases are concerned, as per the condition stipulated in condition No.3(a) of the G.O.Ms.No.378, GA (Ser-A) Dept., dated 24.08.1999, a request for grant of benefit of compassionate appointment can be considered only after a lapse of 7 years from the date from which the Government servant has been missing. As per condition No.3(b)(i) in G.O.Ms.No.378, GA (Ser-A) Dept., dated 24.08.1999, this benefit shall not be extended to the dependents of Government servant, who has less than 7 years of service from the date of filing of FIR.
14) As and when the respondents are considering the cases of the dependents of the deceased employee, who died in harness without stipulating any condition of service he has left at the time of his death, but, in the cases of the dependents of the missing Government employee stipulating a condition that the missed government employee shall have 7 years of service as on the date of the filing of FIR appears to be discriminatory, arbitrary and contrary to the object of scheme of compassionate appointments and violative of Articles 14 and 21 of the Constitution of India. This Court is unable to agree with the condition No.3(b)(i) of the G.O.Ms.No.378, GA (Ser-A) 8 Dept., dated 24.08.1999 issued by the 1st respondent, as there is no justification to impose such condition. In the considered opinion of this Court, by imposing such condition, the very object of scheme of compassionate appointments to help the destitute families would be defeated.
15) In the recent judgment of the Hon'ble Apex Court in State of Himachal Pradesh vs. Shashi Kumar1 speaking for the Bench, Dr. D.Y. Chandra Chud, J, held as extracted hereunder:
"That appointment to any public post in the service of the State has to be made on the basis of the principles in accordance with Articles 14 and 16 of the Constitution of India and compassionate appointment is an exception to the general rule. The dependents of a deceased government employee are made eligible by the virtue of the policy on compassionate appointment and they must fulfill the norms laid down by the State's policy."
16) In the light of the above proposition of law laid down by the Hon'ble Apex Court, it is clear that compassionate appointment is an exception to the general rule and the 1 (2019)3 Supreme Court Cases 653 9 dependents of the deceased government employee must fulfill the norms laid down by the State's policy by following the law governing compassionate appointments. In view of the same, in the considered opinion of this Court, in the State's policy of compassionate appointments and the conditions imposed thereunder shall be one to all and there should not be any discriminatory treatment between the dependents of the deceased government employee and the dependents of the government employee, whose whereabouts are not known.
17) In fact, as per condition No.3(b)(i) in G.O.Ms.No.378, GA (Ser-A) Dept., dated 24.08.1999, the dependents of the Government servant, whose whereabouts are not known, will not get any benefit of compassionate appointment for a period of 7 years from the date of missing/date of registration of FIR.
18) This Court can visualize the condition of the dependents of a Government employee who has disappeared and whose whereabouts are not known for more than 7 (seven) years in contrast to the condition of 10 the dependents of a government employee who died in harness, in a different perspective.
19) It is an admitted fact that the death of the bread earner of the family, undoubtedly, is utterly devastating and harrowing to any family. However, in cases where a government employee dies in harness, the dependents of the government employee are being provided with financial assistance from the employer which includes Pension, P.F., Gratuity, Leave Encashment, etc. The dependents, if otherwise eligible, are also being considered for appointment on compassionate grounds immediately.
20) But, the condition of the dependents of a government employee, whose whereabouts are not known is very pathetic. Being confronted with the sudden disappearance of a family member, who is the sole bread earner of the family would be traumatic, financially trying and halt the everyday lives of the family members. Apart from not getting any financial assistance from the employer until the government employee is declared as dead after 7 years from the date of missing, the dependents of the government employee are not being considered for 11 compassionate appointment for 7 years from the date of registration of the FIR. Under these circumstances, the financial crisis, mental agony and distress of the family would definitely, be unbearable and their suffering and pain could not be explained in words.
21) This Court noticed the condition (f) of the G.O.Ms.No.378, GA (Ser-A) Dept., dated 24.08.1999, in which, it is provided as under:
A bond shall be obtained from the dependent of such missing Government employee, whose whereabouts are not known for more than 7 (seven) years that in the event of appearance of such missing Government employee at a later date or proved that such missing Government employee is alive anywhere, the services of the person so appointed are liable for termination.
22) It appears to protect the interest of the Government, the condition (f) was prescribed. As such, it appears the Government had taken all reasonable precautions to protect the interest of the respondents, in the event of appearance of such missing Government employee at a later date or he is living elsewhere by terminating the services of the appointed candidate.
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23) The State Government can consider to provide immediate relief to such families of missing government employee from untold financial suffering of the entire family to enable the grief stricken family to find some solace to the mental agony and suffering and to manage its affairs in the normal course by taking some precautionary measures as taken in condition No.3(f) of G.O.Ms.No.378, GA (Ser.A) Dept., dated 24.08.1999.
24) In such circumstances, when the family members of the employee (whose whereabouts are not known) being his/her dependents, since they had no other source of livelihood, the respondents should have been much more sympathetic and practical in considering their suffering and trauma.
25) This Court is confident that the Government shall take into account of the view expressed by this Court in this regard and to consider the pathetic condition of such families, and may formulate such policy/or guidelines to help those families with humanitarian approach.
26) The view of this Court had fortified from the decision of the Hon'ble Apex Court in Balbir Kaur vs. Steel Authority 13 of India Limited2, in which their Lordships held as hereunder:
"In the case of appointment considering the social and economic justice as enshrined in the constitution, denials of deserving cases are liable to be set aside. Further, the purpose of providing compassionate ground to a son or daughter or a near relative of the deceased government servant is to render assistance to the family, which is found in indigenous circumstances. Hence, in considering the case for compassionate appointment, the authorities are supposed to adopt a humane outlook."
27) In this regard, it is worthwhile to refer the case in the Superintending Engineer vs. V. Jaya3, wherein their Lordships comprising a Division Bench of Madras High Court have held at para No.7 as extracted hereunder:
7. However, in a case of request for appointment on compassionate ground, however, the Court, while exercising its jurisdiction under Article 226 of the Constitution of India, cannot ignore the very purpose of providing employment on compassionate ground to the dependant of an employee/government servant dying in harness in preference to anybody else as it is 2 (2000) 6 SCC 493 3 (2007) 6 MLJ 1011 14 done so in order to mitigate the hardship to the family of the employee on account of his unexpected death while still in service. The concept of compassionate employment is intended to alleviate the distress of the family and it is for such purpose appointments are permissible and provided even in the rules and regulations and any rigid approach or too technical objections may defeat the very object of the scheme. It is for that purpose while considering the request for compassionate appointment; the authorities are expected to act as a Good Samaritan overlooking the cobwebs of technicalities.
28) For the above mentioned reasons, in the considered opinion of this Court, the condition No.3(b)(i) of the G.O.Ms.No.378, GA (Ser-A) Dept., dated 24.08.1999, in which it is provided that the missing Government servant shall have 7 years of service to retire on the date from which the FIR is filed is discriminatory, arbitrary, unjust and violative of Article 14 and 21 of the Constitution of India and is liable to be struck down.
29) Accordingly, Writ Petition is allowed with the following directions:
i) The condition No.3 (b) (i) of G.O.Ms.No.378, GA (Ser-A), Department, dated 24.08.1999, is hereby struck down;
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ii) The Memo No.JS(Per)/DS(E)/AS (V&R)-NT/PO- 1/718/ 2004, dated 03.03.2009, is set aside;
iii) The respondents are directed to consider the case of the petitioner for appointment on compassionate grounds in terms of G.O.Ms.No.378, GA (Ser-A) Department, dated 24.08.1999 in any suitable post within a period of Six (6) weeks from the date of receipt of a copy of this Order; and
iv) There is no order as to costs.
Consequently, miscellaneous applications pending, if any, shall stand closed.
__________________ BATTU DEVANAND,J Dt. 18-02-2021.
Note: Issue CC in two days.
B/o PGR 16 THE HON'BLE SRI JUSTICE BATTU DEVANAND WRIT PETITION No.10145 of 2012 Dt.18-02-2021 PGR