HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
W.P. No.25673 of 2020
O R D E R:-
This writ petition is filed for the following substantive relief:
"....to issue a writ of mandamus declaring the Endorsement vide
Proceedings in RC.No.4214/2015/AMOH-III/C2 in file No.GVMC-Est
3/45/2017 - SA (C2)C SEC-GVMC dated 12.11.2020 issued by the
3rd respondent rejecting the case of the petitioner for appointment on
compassionate grounds, as arbitrary, illegal, contrary to the scheme of appointment on compassionate grounds and to issue a consequential direction to the respondents to consider the case of the petitioner for appointment to a suitable post on compassionate grounds." The petitioner asserts that he is a graduate in Commerce and eligible to be considered for appointment on compassionate grounds consequent upon the death of his mother who died on 11.07.2014 while working as Primary Health Worker in Zone-III of the 3rd respondent - Corporation. After her demise, the petitioner submitted an application for appointment on compassionate grounds to the 3rd respondent on 13.03.2015 i.e. within one year from the date of his mother's death as contemplated under the scheme by enclosing all relevant documents. The 3rd respondent, vide Proceedings dated 01.10.2015, issued Endorsement informing the petitioner to furnish certificate and documents such as details of movable and immovable property, issued by the Revenue Divisional Officer, Visakhapatnam within 15 days from the date of receipt of the order.
MSM,,J WP_25673_2020 2 The Tahsildar, Visakhapatnam (Urban) submitted a report on 11.07.2014 that the petitioner's mother died on 11.07.2014 and the 3rd respondent - Corporation issued death and family member certificate declaring that Potnuru Gurunadha Rao was an authorized person to receive all the benefits from the Corporation by showing the family members of the deceased - mother. The 3rd respondent, vide Proceedings dated 24.06.2017, requested some more clarification from the Revenue Divisional Officer as to whether Potnuru Gurunadha Rao is the husband of the deceased, to take further action. The Revenue Divisional Officer, vide proceedings dated 26.08.2017, addressed a letter to the Tahsildar requesting him to enquire into the matter personally and take consent from all their family members. In turn, the Tahsildar vide proceedings dated 28.12.2017, based on the report submitted by the Mandal Revenue Inspector, informed the Revenue Divisional Officer that the petitioner's father was working as Attender in UCO bank and he was living separately from the deceased - mother for 20 years and the petitioner was brought up under the natural guardianship of his mother. Based on the report, the Revenue Divisional Officer, vide proceedings dated 21.01.2020, informed the 3rd respondent that there are no movable and immovable properties held by the members of the deceased - mother and his father had second wife namely Potnuru Parvathi. Now, the petitioner's grievance is that the 3rd respondent issued the MSM,,J WP_25673_2020 3 impugned Endorsement vide Proceedings dated 12.11.2020 rejecting his application for appointment on compassionate grounds for the reason that his father was living separately with Potnuru Parvathi without taking divorce from his natural deceased mother. Challenging the same, the present writ petition is filed seeking appropriate directions.
Respondents 3 and 4, filed a detailed counter affidavit but raised a different ground therein, which is as follows:
"It is submitted that the application made by the petitioner has been examined along with the death certificate and the family member certificate issued by the Tahsildar dated 05.11.2014 and after verification of the said certificates and the report of the Revenue Divisional Officer dated 21.01.2020 it was found that the father of the petitioner who was a Nationalized Bank Employee by the time of demise of the mother of the petitioner and later he retired from service whose name is also shown as family member in the family member certificate who retired after demise of mother of the petitioner, has been receiving pension who is an earning family member of the petitioner which cannot be considered for appointment on compassionate grounds as G.O.Ms.No.687, dated 03.10.1977 clearly speaks that the candidates eligible for appointment under the measure shall be spouse of the deceased Government Servant or the dependent children of the deceased Government servant who died in harness there being no other earning member in the family and admittedly the father of the petitioner namely Potnuru Gurunadh Rao who is an earning family member, as such, the petitioner is not entitled to seek employment on compassionate grounds as his father is an earning family member which is a disqualification as per the G.O.Ms.No.687, dated 03.10.1977. It is submitted that it is also relevant to state that the 1st respondent had issued Circular Memo No.3548/SER, G/A2/2010-8, GA(SER,G) Department dated 24.03.2012 whereunder the clarification was issued with regard to earning member under the scheme of compassionate appointment to the dependants of the deceased MSM,,J WP_25673_2020 4 Government servant, who died while in service and also the dependants of the Government Servant who retired on medical invalidation scheme whether terms as earned and pensioner as an earning member or not and after examination, it was observed that the object of providing the compassionate appointment to the dependants of a Government Servant died in harness is to mitigate hardship caused to the family of the deceased on account of his unexpected death and it is granted only when the financial condition of the family is in penury, where one of the parent of the applicant is in service or in receipt of service pension and family pension or lumsum retrial benefits, the dependant child is not entitled to seek compassionate appointment, since there is no financial distress and it is also further observed that the pensioner therefore regarded as an earning member of the family and the family which has a person drawing pension cannot be said to be without an earning member and as such the Government, after careful examination, had clarified that to all the appointing authorities that pension can be treated as earning and the depended children of a Government employee who died while in service cannot be considered for appointment under the Scheme of compassionate ground, when the other parent who had retired from service after demise of the spouse and he is in receipt of service pension, as such, the petitioner's father who is retired employee who is an earning family member should be construed as an earning member as per G.O.Ms.No.687, dated 03.10.1977 as well as the Circular Memo dated 24.03.2012 issued by the 1st respondent.
It is submitted that as the petitioner's father is a Nationalized Bank Employee i.e. UCO Bank who retired after demise of the petitioner's mother and has been receiving pension, is not entitled to seek employment on compassionate grounds, as such, the allegation made by the petitioner in Paragraph No.14 of his writ affidavit that he is entitled to appointment as he fulfilled the condition stipulated for appointment as mentioned in the grounds in Paragraph No.13 of the writ affidavit, but those grounds cannot be taken into consideration in view of specific bar and disqualification that his father is an earning family member as per the above said G.O. It is submitted that the allegation made by the petitioner in Paragraph No.15 of his writ affidavit that the Tahsildar addressed a letter dated 26.12.2017 to the R.D.O. which speaks that no movable and immovable properties held by MSM,,J WP_25673_2020 5 the petitioner and his father is living separately would not entitle the petitioner for his appointment on compassionate grounds as admittedly the petitioner did not produce any record to show that his father has been living separately without there being any divorce from his deceased mother and as such the petitioner is not entitled to seek employment on compassionate grounds in view of the bar as envisaged in G.O.Ms.No.687, dated 03.10.1977 as well as the Circular Memo dated 24.03.2012 issued by the 1st respondent and viewed from any angle the writ petition is liable to be dismissed."
The learned counsel for both the parties reiterated their contentions as urged in the respective writ and counter affidavits. However, the learned counsel for the petitioner has placed reliance on the judgment of the Division Bench of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in W.A.No.700 of 2018, dated 29.11.2018 in support of his contentions. Whereas, Sri S.Lakshmi Narayana Reddy, learned Standing Counsel for Greater Visakhapatnam Municipal Corporation appearing on behalf of Respondents 3 and 4 has requested to remand the matter to the appointing authority to pass appropriate orders.
Admittedly, the Endorsement rejecting the request of the petitioner for appointment on compassionate ground was issued based on the fact that the petitioner's father was living separately from the petitioner's deceased mother for the last 20years and the specific reason is mentioned as follows:
"As there is no evidence submitted by the individual Sri Potnuru Varma, S/o.Vaddadi Raju that his father got divorce for her MSM,,J WP_25673_2020 6 mother hence it is deemed that he is the spouse of the deceased and Revenue Divisional Officer had also produced certificate indicating his father's name in Family Member's Certificate stating that the father of the individual is a retired Bank Employee."
But in Paragraph Nos.6 and 7 of the counter affidavit, the respondent employer made an attempt to substitute other than the reason mentioned in the impugned Endorsement. When the order is not based on the reason pleaded in the counter, the same cannot be looked into in view of the law declared by the Apex Court.
It is settled proposition of law that pleading cannot substitute a reason in an administrative order and this view was fortified by the Constitution Bench judgment of the Apex Court in Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi1, wherein it was held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned therein and cannot be supplemented by fresh reasons in the shape of an affidavit or otherwise; otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, gets validated by additional reasons/grounds later brought in. In the said judgment, the Constitution Bench also referred to the earlier judgment in Commissioner of Police, Bombay v. Gordhandas Bhanji2, wherein the Apex Court observed as follows:
1
(1978) 1 SCC 405 2 AIR 1952 SC 16 MSM,,J WP_25673_2020 7 "Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to effect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
In view of the law declared by the Constitution Bench of the Apex Court, the respondents cannot substitute or supplement a different reason than the reasons mentioned in the order impugned by filing an affidavit. For the reason mentioned in Paragraph Nos.6 and 7 of the counter, the claim of the petitioner is rejected, which is contrary to the settled proposition of law. Hence, the impugned proceedings are liable to be set aside.
Accordingly, the writ petition is allowed setting aside the impugned Endorsement vide Proceedings, dated 12.11.2020 issued by the 3rd respondent. Moreover, the respondent - Corporation is directed to pass appropriate orders keeping in view the judgment of Division Bench of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in W.A.No.700 of 2018, dated 29.11.2018, within a period of four weeks from the date of receipt of a copy of this order. No order as to costs.
MSM,,J WP_25673_2020 8 As a sequel, Miscellaneous Petitions, if any pending, shall stand disposed of as infructuous.
____________________________ M. SATYANARAYANA MURTHY, J 01.03.2021 Note:- Furnish copy in one week.
b/o bcj