Smt. K. Lakshmi, vs The State Of Andhra Pradesh,
2021 Latest Caselaw 1172 AP

 THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                   WRIT PETITION NO.5754 of 2020


ORDER:-

        This writ petition is filed under Article 226 of the

Constitution of India seeking the following relief:

        "...to issue a Writ, Order or Direction more particularly one in the
        nature of Writ of Mandamus, holding that, in not considering the case
        of the 2nd petitioner for appointment under compassionate grounds,
        rejecting the case of 1st petitioner for compassionate appointment vide
        intimation Roc.No.TL3/2779/2015, dated 28.06.2019 as illegal,
        arbitrary, unjust and violative of Article 14, 16 and 21 of Constitution
        of India consequently direct the respondents to consider the case of the

2nd petitioner for appointment under compassionate grounds in any suitable post by relaxing rules on par with similarly situated persons considered vide G.O.Rt.No.119, dated 11.02.2020 and G.O.Rt.No.95, dated 11.02.2020 and pass such order."

2. The case of the petitioners in nutshell is that the husband

of the 1st petitioner K.Jayaprakash while working as Gardner

expired on 14.02.2014 while in service. The petitioner

submitted a representation dated 05.02.2015 requesting the

respondents to provide compassionate appointment to her son

i.e., 2nd petitioner herein enclosing copies of relevant

documents. The respondents orally informed that, as per SSC

Certificate the age of the 2nd petitioner was less than 16 years as

on date of the death of her husband, thus without passing any

speaking orders the respondents orally stated that, the case of

the 2nd petitioner cannot be considered and advised her to

submit an application for compassionate appointment to her.

Accordingly, the petitioner submitted an application dated

15.07.2017 to the respondents requesting to provide a suitable

employment on compassionate grounds to her but the

respondents dragged the matter for years together. After

repeated requests and representations ultimately issued

rejection order vide R.O.C.No.TL3/2779/2015, dated

28.06.2019, on the ground that the 1st petitioner made an

application for compassionate appointment after a lapse of three

years from the date of death of her husband. The same is now

questioned by this Court on the ground that rejection of the

application of the 1st petitioner denying appointment of the

petitioners 1 and 2 is illegal and arbitrary and requested to set

aside the same consequently direct the respondents to provide

employment on compassionate grounds in any suitable post.

The petitioner also relied on the judgment in Sushma

Gosain and others v. Union of India and others1, where the

Apex Court held that....

"we consider that it must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner of the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years."

But in the present case, application of this petitioner is

kept pending for two years and therefore such action of the

(1989) 4 SCC 468

respondents is illegal and arbitrary and requested to issue a

direction as stated supra.

The respondents filed counter denying material allegations

while admitting the death of her husband while working as a

Gardner while in service on a particular day and making an

application by the 1st petitioner for appointment of her son on

compassionate grounds in any suitable post and submission of

2nd application by the 1st petitioner for her appointment on

compassionate ground in the year 2017. But, the specific

contention of the respondents is that in terms of Government

orders in G.O.No.687, GAD(Ser.A) Dept, dated 03.10.1997 and

G.O.Ms.No.165, GAD(Ser.A) Dept., dated 20.03.1989 read

Government memo No.618/Ser.A/ 78-11GAD(Ser.A) Dept.,

dated 17.12.1979, the petitioners are not entitled to claim any

relief and again the 1st petitioner

requested to provide employment to her instead of her son as

her son would be ineligible after lapse of three years as per

representation dated 17.03.2017 of the petitioner (2nd

applicant). The said request was examined as per rules of

compassionate appointment and as the 2nd application was

received from the petitioner for compassionate appointment

after a lapse of three years from the date of death of deceased

employee, her request is not feasible for consideration. On

these two grounds, the request of the petitioners 1 and 2 was

rejected and finally the claim of the petitioners are not entitled

to claim relief and requested to dismiss the writ petition.

Heard Sri Suresh Kumar Potturi, learned Counsel for the

petitioners who contended that the earlier application was

submitted for appointment of the 2nd petitioner in any suitable

post on compassionate grounds within time. The 2nd application

submitted for the appointment of 1st petitioner in any suitable

post on compassionate grounds and it is a continuation of

earlier application.

In support of his submissions and contentions, the learned

counsel for the petitioners placed reliance on the following

judgments of the Division Bench of Hon'ble Madras High Court:-

1) T.Sathiaraman v. The Secretary to Government and two others 2

2) T.Meer Ismail Ali vs The Tamilnadu Electricity Board 3

On the strength of principles laid down in the above said

judgments, the counsel for the petitioners contended that the

rejection of application of the 1st petitioner for her appointment

in any suitable post on compassionate grounds is illegal.

It is further contended that the rejection of application of

the 2nd petitioner on the ground that he was not aged 18 years

as on the date of death of his father is also irrational and illegal

and it is nothing but arbitrary exercise of exercise of power by

on part of the respondents requested grant the relief as claimed

W.A.(MD) No.737of 2013, dt.23.07.2013

(2004(3)CTC 120)

in the writ petition. Whereas, Sri A.Sumanth, Standing Counsel

for the respondents contended that father of the 2nd petitioner

and husband of the 1st petitioner died on 14.02.2014 and an

application was made on 05.02.2015 to appoint the 2nd

petitioner in any suitable post, on compassionate ground by

then he was aged fifteen years eight months six days.

Thereupon, 1st petitioner made another application stating that

her son is not eligible for appointment in any suitable post on

compassionate grounds, requested to appoint her in any

suitable post on compassionate grounds by application dated

15.07.2017. Since, the request of the petitioner, to appoint the

2nd petitioner is contrary to the G.O.No.687, GAD(Ser.A) Dept,

dated 03.10.1997 and G.O.Ms.No.165, GAD(Ser.A) Dept., dated

20.03.1989 read Government memo No.618/Ser.A/78-

11GAD(Ser.A) Dept., dated 17.12.1979 and similarly the request

of the 1st petitioner was rejected as the application was

submitted at belated stage i.e., beyond one year from the date of

death of her husband and consequently the rejection of the

claim of the petitioners is not against law and request to dismiss

the petition.

Undisputedly, husband of the 1st petitioner and father of

the 2nd petitioner died on 14.02.2014 while working as a

Gardner under the respondents. The petitioners being the

dependents of the deceased/Government servant are entitled to

claim compassionate appointment subject to compliance the

requirements under G.O.No.687, GAD(Ser.A) Dept, dated

03.10.1997 and G.O.Ms.No.165, GAD(Ser.A) Dept., dated

20.03.1989 read Government memo No.618/Ser.A/78-

11GAD(Ser.A) Dept., dated 17.12.1979. As they are in harness

and in financial distress without any support from any source of

income, this scheme is intended to provide immediate relief to

the dependents of deceased/Government servant who are in

financial distress. Therefore, the petitioners have to satisfy the

mandatory requirements of the G.O.No.687, GAD(Ser.A) Dept,

dated 03.10.1997 and G.O.Ms.No.165, GAD(Ser.A) Dept., dated

20.03.1989 read Government memo No.618/Ser.A/78-

11GAD(Ser.A) Dept., dated 17.12.1979. Unless the petitioners

satisfy those mandatory requirements, they are not eligible for

being appointed in any suitable post on compassionate grounds.

As per G.Os. and Government Memos referred above, as

per the scheme of compassionate appointment, an application

shall be made within one year from the date of death of the

Government Servant for appointment on compassionate ground;

the petitioners are conscious about the time allowed to submit

an application for compassionate appointment and accordingly

submitted an application dated 05.02.2015 to appoint the 2nd

petitioner in any suitable post on compassionate ground. But

for one reason or the other the 1st petitioner again submitted

another application dated 15.07.2017 stating that her son is not

eligible for being appointed as he was aged fifteen years eight

months six days as on the date of death of her husband and

father of the 2nd petitioner and requested to appoint her in

suitable post on compassionate ground.

According to the scheme for compassionate appointment

and as per the G.Os referred above including the memo for

appointment on compassionate ground the child must be 16

years of age as on the date of death of the Government servant

and infact it is stated in the memo referred above that the child

must attain age of majority or 18 years within two years after

the death of Government servant. But in the present case, the

2nd petitioner was aged 15 years eight months six days. In view

of the discrepancy in the date of birth noted in SSC certificate is

08.06.1998 but in the service records the age of the 2nd

petitioner has noted as 08.06.1997. Therefore, the date of birth

mentioned in the SSC Certificate will prevail over the service

register, which is basis for appointment in any Government

Service.

It is contended that as per Municipal records, the 2nd

petitioners date of birth was 08.06.1997. Thus, the date of birth

noted in the municipal records, date of birth noted in the service

records and SSC certificate are not consistent with one another

and either of them cannot be accepted. But, in view of the

authenticity attached to the SSC Certificate which is basis for

appointment in any Government Service or public employment

and the same is to be accepted. The date of birth noted in the

SSC Certificate if taken into consideration that the 2nd petitioner

was aged 15 years eight months six days and thereby question

of attaining 18 years within two years from the date of death of

Government servant does not arise and consequently he is not

eligible for being appointed in any suitable post as he is

disqualified to be appointed on account of underage as on the

date of death of his father. Therefore, rejection of the claim of

the 2nd petitioner by the respondent is in accordance with the

G.Os. referred above. However, the application is pending with

the respondent No.2. Keeping the application of the 2nd

respondent for appointment on compassionate ground is not

consistent with the law laid down by the Apex Court in Sushma

Gosain case (referred supra) wherein the Apex Court held that

in all claims for appointment on compassionate ground, there

should not be any delay in appointment. The purpose of

providing appointment on compassionate ground is to mitigate

the hardship due to death of bread earner in the family. Such

appointment should, therefore, be provided immediately to

redeem the family in distress. It is improper to keep such case

pending for years.

Therefore, keeping the application of the 2nd petitioner

pending since 05.02.15 is illegal and arbitrary and therefore the

2nd respondent is directed to pass appropriate order in terms of

G.Os. and Governments memos referred above within two weeks

from today, if it is pending with the 2nd respondent, in

accordance with law.

The contention of the 1st petitioner is that she is also

eligible for being appointed in any suitable post on

compassionate ground and made an application dated

15.07.2017 i.e., after lapse of one year from the date of death of

her husband. But as per scheme for compassionate

appointment, application must within one year for her

appointment on compassionate ground. The learned Counsel

for the petitioners, based on the law declared by the Division

Bench of Madras High Court in T.Sathiaraman case and

T.Meer Ismail Ali case (referred supra) contended that the 2nd

application is continuation of the 1st application and thereby the

2nd application cannot be said to be barred by time in terms of

the scheme of compassionate appointment.

No doubt, the first application was submitted on

05.02.2015 i.e., within one year from the date of death of

husband of the 1st petitioner. It is absolutely within time

prescribed under the scheme for appointment on compassionate

ground. But, the first application for appointment of 2nd

petitioner i.e., son of the deceased whereas the 2nd application is

for appointment of 1st petitioner i.e., wife of deceased and the

mother of the 2nd petitioner. These two applications are for

distinct reliefs and for appointment of two individuals.

According to the principles laid down by the Division Bench in

the judgment referred above relying on earlier judgment of the

Madras High Court in W.P.No.1584 of 2011 where the Court

held that the applications having been made within a period of

three years and the same having not been considered on the

ground that the petitioner therein was not 18 years of age at

that time, the subsequent application cannot be rejected on the

ground that the application was submitted within three years

and it is a continuation of earlier application. In the facts of the

above judgment, the first applicant who did not attain age of 18

years and the second applicant are one and the same. But the

second application was made after attaining age of 18 years.

Therefore, the Madras High Court concluded that the 2nd

application submitted by the same person who submitted the

first application is a continuation of earlier application.

But in the earlier judgment of Division Bench applying the

same judgment concluded that the application submitted by two

separate individuals. The second application is continuation of

earlier application. The principle laid down in the above

judgment is not binding president except persuasion. Therefore,

the same principle cannot be applied since the scheme of

compassionate appointment of Tamilnadu State is different from

the scheme of compassionate appointment in state of Andhra

Pradesh. The learned Counsel for the petitioners relied upon the

judgment in T.Meer Ismail Ali case (referred supra) no ratio is

found except observation in para No.5 as follows ...

"Learned Counsel for the respondent relied upon the judgment dated 10.10.2002 passed in W.P.No.35155 of 2002 holding that the very purport of providing compassionate appointment was to provide employment assistance to the dependents of deceased employee who died in harness and thereby provide immediate relief to the family from undergoing any financial sufferings. It was held therein that when the application was made after 31 years after the death of the father, there was no scope to consider the application for compassionate appointment, as the same would not serve the purpose of which it was intended. In fact, the judgments of the Supreme Court as well as this Court referred to in the said judgment were also in respect of cases where applications for compassionate appointments appear to have been made after 17 years and 31 years respectively, after the death of the employees concerned. Therefore, what is stated in those cases can have no application to the facts in this case."

Basing on the observation, the learned Counsel contended

that the application was submitted within two years and the

first application was submitted within one year as per scheme,

whereas the 2nd application was submitted for appointment of

employment on compassionate ground after three years but the

2nd application cannot be based on the second application of the

1st petitioner. She cannot be appointed in any suitable post for

the reason that the application was made beyond one year and

on receipt of such applications and providing employment would

defeat or impede the very purpose of the scheme of

compassionate appointment. Therefore, rejection of the

application of the 1st petitioner by order dated 28.06.2019 is in

accordance with law and the same cannot be interfered by this

Court while exercising limited jurisdiction of this Court under

Article 226 of the Constitution of India. Since, this Court

cannot sit under appeal of the order passed in any

administrative authority, which is impugned in the writ petition.

Similar question came up before the Division Bench of

Madras High Court in E. Ramasamy v. Tamil Nadu Electricity

Board4, where the Division Bench considered the issue and

decided that the scheme permits three years outer limit for filing

application for employment on compassionate grounds from the

date of death of the employee. In the facts of the above case, the

applicant became major after nine years from the date of death of

the employee. Therefore, the application was rejected by the

department and the same is upheld by the Division Bench of High

Court of Madras, as the application was submitted beyond the

period permitted under the scheme.

In Director of Education v. Pushpendra Kumar5, the Apex

Court held that, there cannot be reservation of vacancy till such

time as the petitioner becomes a major after a number of years,

unless there are some specific provisions. The very basis of

compassionate appointment is to see that the family gets

immediate relief.

(1998)5 Sessions Court 192

In Sanjay Kumar v. State of Bihar6, the Apex Court

considered the concept of compassionate appointment and while

discussing the scope, the Apex Court concluded that

compassionate appointment is intended to enable the family of the

deceased employee to tide over sudden crisis resulting due to

death of the bread earner who had left the family in penury and

without any means of livelihood and held that, there cannot be

reservation of a vacancy till such time as the applicant becomes a

major after a number of years, unless there are some specific

provisions. In fact such a view has been expressed

in Director of Education v. Pushpendra Kumar7. In the facts of

the above judgment, on the date when the first application was

made by the petitioner on 02.06.1998, the petitioner was a minor

and was not eligible for appointment. This is conceded by the

petitioner. There cannot be reservation of vacancy till such time as

the petitioner becomes a major after a number of years, unless

there are some specific provisions. The very basis of compassionate

appointment is to see that the family gets immediate relief. The

purpose of providing employment to a dependant of a government

servant dying in harness in preference to anybody else is to

mitigate the hardship caused to the family of the employee on

account of his unexpected death while in service. To alleviate the

distress of the family, such appointments are permissible on

compassionate grounds provided there are Rules providing for

such appointment. None of these considerations can operate when

6 2000 (7) SCC 193

(1998) 5 SCC 192

the application is made after the death of the employee. The reason

for making compassionate appointment, which is exceptional, is to

provide immediate financial assistance to the family of a

government servant who dies in harness, when there is no other

earning member in the family.

In Sanjay Kumar v. State of Bihar (referred supra), the

applicant became major after number of years. Unless there is

some specific provision which permits the applicant to make such

application subsequent to attaining majority, the same cannot be

accepted for the reason that the very basis of compassionate

appointment is to see that the family gets immediate relief. The

application made after stipulated time under the scheme is not

maintainable and it is not permissible to hold that such

application could be made after attaining the age of majority.

Therefore, keeping in view the principles laid down by the

Apex Court and various Courts in the above judgments, it is clear

that the Court cannot hold that the scheme provided for making

application on compassionate ground must be done in accordance

with the procedure, if the application is made beyond the period

prescribed under the scheme, rejection is justified and therefore,

the rejection of application of the petitioners in the present case is

justifiable.

Therefore, I found no ground to set aside the impugned

order dated 28.06.2019. However, it is appropriate to issue a

direction to the 2nd respondent to dispose of the application

submitted by the 1st petitioner to appoint the 2nd petitioner in

any suitable post on compassionate ground strictly adhering to

the G.Os. and Government memos within ten(10) days from

today.

In the result, the Writ Petition is dismissed. No costs.

As a sequel, interlocutory applications, if any, pending

shall stand closed.

__________________________________________ JUSTICE M.SATYANARAYANA MURTHY

Date: 26.02.2021 KLPD

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

Writ petition No.5754 of 2020

Date: 26.02.2021

KLPD