THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
AND
THE HON'BLE SRI JUSTICE A. RAJASHEKER REDDY
WRIT APPEAL No.740 of 2011
JUDGMENT: (Per the Hon'ble the Chief Justice Satish Chandra Sharma)
The present writ appeal is arising out of order dated
16.11.2010 passed in W.P.No.5474 of 2008 by the learned Single
Judge.
The undisputed facts of the case reveal that respondent
No.1/writ petitioner is the widow of one Mallesham and she was serving as a contingent employee in Chanakya Junior College, Hyderabad, with effect from 04.09.1982. Her husband expired on 05.04.1996 and she applied for grant of compassionate appointment. She was appointed on 08.04.1996 and she is still continuing in service. She submitted an application for grant of regular salary on par with other employees and she even approached this Court by filing a writ petition i.e., W.P.No.18631 of 2007.
This Court in the earlier round of litigation has directed the employer to consider her case and finally an order was passed on 01.12.2007 rejecting her claim for grant or regular salary and regularisation. The learned Single Judge placing reliance upon G.O.Ms.No.9, dated 08.01.1981, has allowed the writ petition. The operative paragraphs of the order passed by the learned Single Judge are reproduced as under:
2"A plain reading of the aforestated G.O. reflects that it has application only to posts which had been in existence for five years or more as on 01.04.1981. The petitioner's husband and the other two contingent employees, Ramulu and V.Srinivasa Rao, entered the service of Chanakya Junior College, Hyderabad, in the year 1982. There is no evidence that the posts held by them as contingent employees were in existence prior thereto. Therefore, on the face of it, the said G.O. had no application to the cases of Ramulu and V.Srinivasa Rao. Further, the additional counter affidavit reflects that Ramulu is still continuing as a contingent employee even after redeployment. This fact negates the claim of the Intermediate Education Department that he was given the benefit of G.O.Ms.No.9 dated 08.01.1981. It appears that the Department is clutching at straws to justify its discrimination between the petitioner and the other contingent employees of Chanakya Junior College, Hyderabad. It is relevant to note that all along the stand of the Department to deny the petitioner's claim was that her husband was not regularized in service as a Class-IV employee and therefore she was not entitled to any benefit arising out of the service rendered by him. That being so, there is no explanation as to how and why the other two contingent employees who were also admitted to grant-in-aid on par with the petitioner's husband were given beneficial treatment when they stood identically situated with him and were only contingent employees too. It is admitted that it is only after redeployment that V.Srinivasa Rao was absorbed in last grade service under G.O.Ms.No.9 dated 08.01.1981. Further, Ramulu still continues to be a contingent employee. This clearly manifests the contradictory stands being adopted by the Department in dealing with these cases.
This Court is conscious of the fact that neither Ramulu nor V.Srinivasa Rao are before it. However, the aforestated examination of their cases is necessitated by the allegation of the petitioner that her case, being alike, was treated differently from theirs. The observations m a d e supra are therefore limited to examining this charge of discrimination and are not intended to be used for initiating any adverse action against either Ramulu or V.Srinivasa Rao.
As stated supra, the petitioner was entitled to compassionate appointment in the light of the Government's policy reflected in G.O.Ms.No.281 dated 25.05.1985. Thereunder, she was also entitled to be considered for regular appointment, if she satisfied the other conditions of recruitment such as age and educational qualifications. Ignoring this aspect, it appears that she was continued as a contingent employee in Chanakya Junior College, Hyderabad, until its closure. Her averment in the affidavit that she rendered more than 10 years of service in the said College remains unrebutted.
The facts aforestated therefore establish that the understanding of the authorities that the petitioner's husband was not entitled to be paid the minimum time scale and that he was rendering service against an unaided post is factually incorrect 3 and opposed to the record. That apart, the favourable treatment of the other two contingent employees of Chanakya Junior College, Hyderabad, clearly demonstrates discrimination in so far as the petitioner is concerned. The order dated 01.08.2007 being misconceived, the subsequent proceedings dated 01.12.2007, are no better.
The matter may be viewed from yet another angle. The petitioner rendered 10 years of service in Chanakya Junior College, Hyderabad, without protection of Court others. Her compassionate appointment against an aided vacancy was in accordance with the Government's policy embodied in G.O.Ms.No.281 dated 25.05.1985 and she was entitled to be regularized in accordance therewith. In that view of the matter, she would also be entitled to regularization in service as per the observations of the Supreme Court in SECRETARY, STATE OF KARNATAKA V/s. UMA DEVI ((2006) 4 SCC 1) . In its subsequent judgment in STATE OF KARNATAKA V/s. L.KESAR (2010 (1) Decisions Today (SC) 358), the Supreme Court while dealing with this aspect observed that daily wage/casual/ad-hoc employees who fulfilled the requirements mentioned in para 53 of UMA DEVI would be entitled to regularization in service as a one-time measure. The facts of the case on hand demonstrate that the petitioner more than fulfilled the said requirements. She would therefore be entitled to the protection afforded by the aforestated judgments of the Supreme Court and be placed on par with V.Srinivasa Rao.
The impugned proceedings dated 01.08.2007 and 01.12.2007 are accordingly set aside. There shall be a direction to respondents 1 to 3 to appoint the petitioner as a Class-IV employee in any other needy Junior College as was done in the case of V.Srinivasa Rao granting due relaxation of the rules, if required. This exercise shall be completed expeditiously and in any event not later than three months from the date of receipt of a copy of this order.
The writ petition is allowed but in the circumstances, without any order as to costs."
Undisputedly, respondent No.1/writ petitioner is serving since 08.04.1996. The learned Single Judge has directed her case to be considered with the Government policy embodied in G.O.Ms.No.281 dated 25.05.1985 and also keeping in view the judgment delivered by the Supreme Court in the case of Secretary, State of Karnataka vs. Uma Devi1.
1(2006) 4 SCC 1 4 This Court keeping in view the fact that the employee was appointed on compassionate grounds and she has put in requisite years of service required for consideration for regularisation, does not find any reason to interfere with the order passed by the learned Single Judge. The admission is declined.
Accordingly, the writ appeal stands dismissed.
Learned Government Advocate is fair enough in informing this Court that the Chanakya Junior College has been closed.
Therefore, keeping in view the direction given by the learned Single Judge, the respondent/State is certainly under an obligation to accommodate her in some other college.
Miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs.
__________________________________ SATISH CHANDRA SHARMA, CJ ______________________________ A. RAJASHEKER REDDY, J 17.11.2021 ES