THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
WRIT PETITION NO.2760 OF 2016
ORDER
This Writ Petition has been filed by the petitioner seeking a Writ, Order or Direction particularly one in the nature of Writ of Mandamus declaring the order passed by the 3rd respondent in Proceedings No.LC/WP/785(39)/2015-RM/KRMR, dated 07.10.2015 refusing to consider the case of the petitioner for appointment under Bread Winner Scheme as illegal, arbitrary and in violation of principles of natural justice.
2. Brief facts leading to the filing of this Writ Petition are that the petitioner's father had joined the respondent Corporation as a casual worker on 18.04.1981 and his services were orally terminated on 20.09.1984. The petitioner's father raised an ID in I.D.No.117 of 1989 and the same was allowed directing the respondents to reinstate the petitioner's father into service with attendant benefits from 28.07.1987. Aggrieved, the respondent Corporation had filed a Writ Petition in W.P.No.5077 of 1992 which was dismissed vide orders dt.30.04.1997.
W.P.No.2760 of 2016 2 In the meantime, the petitioner's father died and the petitioner herein, who is the son of the employee, filed an application for consideration of his case for compassionate appointment and when the same was not considered by the respondents, the petitioner filed W.P.No.205454 of 2015. The Writ Petition was disposed of by this Court directing the respondent Corporation to consider the petitioner's case for compassionate appointment under Bread Winner Scheme. When the petitioner made a representation to the respondents along with the copy of the order of this Court, the respondents informed the petitioner that his father was removed from service on 10.05.1995. It is the case of the petitioner that his father had reported for duty on 16.06.1994 and thereafter, he did not turn up and that a complaint was also lodged as a missing case by his mother on 18.06.1994 and even thereafter, the whereabouts of his father were not known and subsequently it was known that he was killed in suspicious circumstances. It is submitted that a false criminal case was lodged against the petitioner's mother for the death of his father, but she was ultimately acquitted in S.C.No.908 of 1997 vide judgment dt.14.09.2001. It is submitted that since the petitioner's father was kidnapped and murdered, he is deemed to be in continuous service till it was confirmed that he had died and therefore, W.P.No.2760 of 2016 3 the order passed by the respondents removing him from service, i.e., after his death, is not valid and sustainable.
3. Sri A.K.Jaya Prakash Rao, learned counsel for the petitioner, submitted that the impugned order dt.07.10.2015 rejecting the representation of the petitioner for compassionate appointment on the ground that the father of the petitioner was already removed from service and that he was only a temporary employee and therefore, compassionate appointment cannot be considered, is bad in law and hence has to be set aside. He submitted that the father of the petitioner was killed in mysterious circumstances and the same was also reported in newspapers and therefore, the father of the petitioner is deemed to have been dead as on 16.06.1994. He relied upon the death certificate issued by the Tahsildar dt.13.06.2008 in support of his above contention. He also placed reliance upon the additional material papers filed before this Court to demonstrate that the services of other casual workers who were appointed with the father of the petitioner were regularised vide proceedings dt.25.03.1997 and therefore, the petitioner's father also should be deemed to have been regularised with W.P.No.2760 of 2016 4 effect from the said date and his case for compassionate appointment should be considered from the said date.
4. The learned Standing Counsel for the respondents, Sri A. Ravi Babu, on the other hand, relied upon the averments in the counter affidavit and stated that the petitioner's father had worked up to 16.06.1994 and thereafter, had not reported for duty and on the ground of continued absenteeism, he was removed from service on 10.05.1995. He further submitted that the death certificate relied upon by the learned counsel for the petitioner is also not reliable. He submitted that the petitioner's contention that his father died in suspicious circumstances is correct but the date of death is doubtful. Further, it is reiterated that since the petitioner's father was not a regular employee, the case of the petitioner for consideration under Bread Winner Scheme also cannot be considered and the same has rightly been intimated to the petitioner by way of the impugned letter.
5. The learned Standing Counsel for the respondents also placed reliance upon the judgments of the Hon'ble Supreme Court in the case W.P.No.2760 of 2016 5 of State of Uttar Pradesh and others Vs. Premlata1 and also in the case of Steel Authority of India Limited Vs. Gouri Devi2 in support of his contention that there is no need to make appointment on compassionate grounds if it is proved that in spite of death of the bread winner, family survived for a substantial period thereafter.
6. The learned counsel for the petitioner, in rebuttal, submitted that the workers/employees who were appointed along with the petitioner's father in the year 1981 have been regularised subsequently in the year 1997 and had the petitioner's father been alive, he also would have been regularised with effect from 01.08.1996 and therefore, the petitioner's father should be deemed to be regularised and the petitioner's case should be considered for compassionate appointment.
7. Having regard to the rival contentions and the material on record, it is not in dispute that the petitioner's father had died in mysterious/suspicious circumstances. However, it cannot be disputed that the petitioner's father died on or after 16.06.1994. It appears that when the whereabouts of the petitioner's father were not known, the 1 (2022) 1 SCC 30 2 AIR 2022 SC 783 W.P.No.2760 of 2016 6 respondents have passed the order of dismissal dt.10.05.1995. However, even if it were to be true that the respondents were not aware of the death of the petitioner's father, the order of dismissal would come into effect only when it is communicated to the employee. Clearly, the said order has not been communicated to the petitioner's father. Further, any order passed against a dead person is not maintainable. In such circumstances, the case of the respondents that the petitioner's father has been removed from service for continued absenteeism and therefore, the case of the petitioner for compassionate appointment cannot be considered, is not sustainable.
8. The other ground on which the request of the petitioner has not been considered is that the father of the petitioner was not a regular employee. As rightly pointed out by the learned counsel for the petitioner, the petitioner's father had already put in more than 15 years of service and was eligible for regularisation under G.O.Ms.No.212 dt.22.04.1994 and the regularisation of his services was pending due to administrative reasons and the services of similarly placed persons were regularised in the year 1997.
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9. The Government of Andhra Pradesh had issued G.O.Ms.No.118, Finance and Planning (FW.PC.III) Dept., dt.18.08.1999 to consider the cases of the dependants of such deceased employees who are eligible to be regularised and the dependants of such employee are entitled for compassionate appointment if the regularisation of the employee was pending for administrative reasons. As it is not the case of the respondents that the petitioner's father was not eligible for regularisation, but it is only their case that he was not regularised as on the date on which he went missing or is deemed to have died, this Court is of the opinion that as per G.O.Ms.No.212, Finance and Planning (FW.PC.III) Dept., dt.22.04.1994 and G.O.Ms.No.118 dt.18.08.1999, the petitioner's father was eligible for regularisation, the respondent Corporation is directed to reconsider the case of the petitioner for compassionate appointment if the said G.O. has been adopted by the respondent Corporation herein. The respondents are directed to take a decision on the representation of the petitioner in view of the above directions within a period of six (6) weeks from the date of receipt of a copy of this order and communicate the orders being passed thereon to the petitioner.
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10. The Writ Petition is accordingly disposed of. No order as to costs.
11. Pending miscellaneous petitions, if any, in this Writ Petition shall stand closed.
___________________________ JUSTICE P. MADHAVI DEVI Date: 10.10.2022 Svv