Smt. B. Lakshmi, Krishna Dist. vs M.D., Apsrtc, Hyd. 2 Ors.
2021 Latest Caselaw 1179 AP

                                 1


      THE HON'BLE SRI JUSTICE BATTU DEVANAND

              WRIT PETITION No. 18452 of 2013

ORDER:

This Writ Petition has been filed by the petitioner,

under Article 226 of the Constitution of India, seeking the writ

of Mandamus declaring the action of the respondents in not

considering her case for appointment as Conductor or in any

suitable post on compassionate grounds in pursuance of

G.O.Ms.No.2, Transport, Roads & Buildings (TS.II)

Department, dated 05.01.2013, as illegal and arbitrary.

2) Heard Sri S.M. Subhan, learned counsel for the petitioner

and Sri P. Durga Prasad, learned Standing Counsel for APSRTC

appearing for the respondents and perused the record.

3) The case of the petitioner is that the husband of the

petitioner by name Nenavath Srinivas, worked as a Driver in

the respondent Corporation. He died on 16.02.2007 in

harness. The petitioner made an application on 23.08.2007

seeking appointment on compassionate grounds in any

suitable post. The respondents orally informed the petitioner

that her name was registered and as and when vacancy

arises, her case will be considered. But, in spite of repeated

requests made by the petitioner, her claim was not

considered.

4) On the other hand, the respondents appointed one Smt.

Parvati, wife of a deceased employee and one Smt.D.

Rajeswari, wife of a deceased employee as Cleaners in the

respondent Corporation, though they have no requisite

qualifications. But the case of the petitioner was not

considered, which is discriminatory and arbitrary and sought

to allow the writ petition directing the respondents to appoint

the petitioner in any suitable post on compassionate grounds.

5) A counter affidavit has been filed by the learned

Standing Counsel on behalf of the respondents.

6) The case of the respondents is that the husband of the

petitioner died on 16.02.2007 while he was working as Driver

in the respondent Corporation. The petitioner being a wife of

the deceased employee submitted an application on

29.07.2009 for providing employment i.e., Attender/

Conductor/Shramik under the bread winner scheme.

Considering the request of the petitioner, she was called for an

interview to the post of Conductor on 20.07.2013. The

Selection Committee selected the petitioner to the post of

Conductor subject to height relaxation from the competent

authority. The said proposals for height relaxation by 3 cms.,

has not agreed by the competent authority. In view of the

same, the claim of the petitioner for appointment as

Conductor is not considered.

7) It is contended by the learned Standing Counsel

appearing for the respondents that in the respondent

Corporation no recruitment took place to the post of

Attenders. As such, considering the claim of the petitioner to

the post of Attender does not arise. As per the terms of the

Circular No.PD-37/2003, dated 26.05.2003, women

candidates are not eligible for Shramik Post. In view of the

instructions issued in the said Circular, the respondents are

unable to provide employment to the petitioner. The same

was also informed to the petitioner vide letter

No.P3/684(1)/2013-RM/KR, dated 23.12.2013. As such, the

learned Standing Counsel sought to dismiss the writ petition.

8) Upon perusal of the averments made in the counter

affidavit filed by the respondents, this Court noticed that

women candidates are not eligible for Shramik Post in terms of

Circular No.PD-37/2003, dated 26.05.2003, this Court directed

the learned Standing Counsel for the respondent Corporation

to place the circular before this Court. Accordingly, the

learned Standing Counsel filed a memo, dated 21.01.2021

enclosing the Circular No.PD-37/2003, dated 26.05.2003

issued by the Vice Chairman &n Managing Director of Andhra

Pradesh State Road Transport Corporation. The said circular is

extracted as hereunder:

ANDHRA PRADESH STATE ROAD TRANSPORT CORPORATION

No.R1/684(2)/1994-HRD Office of the Managing Director, Mushirabad, Hyderabad-20.

CIRCULAR NO.PD-37/2003, Dated 26.05.2003

SUB: RECRUITMENT - direct recruitment for the posts of Shramik, Mechanic and Chargeman (Printing) - Exemption from Women reservation for these posts - Approval of the Government - Notified.

REF: 1) Cir.No.PD-79/1998, dated 04.09.1998.

2) Cir.No.PD-38/2001, dated 07.05.2001.

3) Govt.'s Lr.No.17525/Tr.III(2)/98-11, dated 06.02.2003 of TR & B Department.

***

As per the Women reservation policy of the Govt. which is implemented vide Circular 1st cited, the vacancies under direct recruitment reserved for Women have to be carried forward to three successive recruitments as backlog in case of non-availability of suitable and qualified Women Candidates for the posts.

However, in view of certain practical problems in implementing Women reservation, we had requested the Government to exempt Women reservation for the posts of Shramik, Mechanic and Chargeman (Printing).

The Special Chief Secretary to the Government, TR & B Department has now conveyed the exemption accorded by the Government from Women reservation in direct recruitments for the posts of Shramik, Mechanic and Chargeman (Printing), vide Government's letter 3rd cited.

In view of the exemption from Women reservation accorded by the Government vide Government's letter 3rd cited, for the posts of Shramik, Mechanic and Chargeman (Printing), all the recruiting authorities are hereby instructed not to recruit Women candidates for these posts by direct recruitment. In the advertisements that may be issued for direct recruitment to these posts, it may be clearly mentioned that Women candidates are not eligible for these posts.

These instructions shall come into force with immediate effect. This Circular supersedes the Circular 2nd cited.

Sd/- R.P. Singh, VICE CHAIRMAN & MANAGING DIRECTOR

9) It appears from the record that the petitioner lost her

husband on 16.02.2007, who was working as Driver at that

time and the petitioner seeking appointment under

compassionate grounds for the post of Attender/Conductor/

Shramik under the bread winner scheme in the respondent

Corporation. The respondents did not consider the request of

the petitioner for the post of Attender stating that no

recruitment took place to the post of Attender. The

respondents rejected the request of the petitioner for the post

of Conductor on the ground that the competent authority has

not agreed for relaxation of height by 3 cms. The respondents

did not consider the request of the petitioner for appointment

to the post of Shramik also in terms of the Circular No.PD-

37/2003, dated 26.05.2003.

10) The Government of Andhra Pradesh formulated a scheme

of compassionate appointments to the dependents of the

deceased government employees in the year 1977 vide

G.O.Ms.No.687, General Administration (Ser.A) Department,

dated 03.10.1977. Certain instructions/clarifications/further

orders were issued from time to time in the matter. A

comprehensive note on the scheme of compassionate

appointments to the dependents of the deceased government

employees is consolidated vide Circular Memo No.60681/

Ser.A/2003-1, General Administration (Ser.A) Department,

dated 12.08.2003. The scheme was extended to State Level

Public Undertakings. The scheme was dispensed with for

some time in State Level Public Undertakings due to financial

restrains and introduced the scheme of granting exgratia. The

scheme of compassionate appointment was dispensed with in

respondent Corporation in the year, 1998.

11) It appears on persuasion of the respondent Corporation,

the State Government issued G.O.Ms.No.2, Transport, Roads

& Buildings (TS.II) Department, dated 05.01.2013 permitting

the Corporation to reintroduce the scheme of compassionate

appointments with effect from 01.01.1998. Thereafter,

G.O.Ms.No.15, Transport, Roads & Buildings (TS.II)

Department, dated 07.02.2014 was issued clarifying that the

scheme of compassionate appointments shall be in force for

future claims also. It appears basing on the report submitted

by the Committee of Officers constituted by the Vice Chairman

& Managing Director of the respondent Corporation,

comprehensive guidelines were issued vide Notification No.PD-

2/2015, dated 10.02.2015 prescribed the eligibility

qualifications for the respective posts and criteria for

consideration of eligibility of claims of the dependents of the

deceased employees.

12) The claims of the dependents of the deceased employees

on compassionate grounds was considered initially to the post

of Driver Gr.II, Conductor Gr.II and Shramik (Cleaner to

Khalasi) and later this scheme was extended to the post of

RTC Constables. But, in view of the Circular No.PD-37/2003,

dated 26.05.2003, the post of Shramik, Mechanic and

Chargeman (Printing) are offered to male candidates only.

13) It is brought to the notice of this Court that it was

averred in the counter affidavit filed by the respondent

Corporation in Writ Petition No.15756 of 2014 that as there

was ban on recruitment for the post of Shramiks and to adjust

the excess staff in Sweepers and Attenders category, policy

decision was taken to re-categorize Sweepers as Shramiks in

the year, 2002 and it is further asserted that though these

persons were designated as Shramiks, but they are being

utilized as Sweepers only. From these averments, it is clear

that the respondents are utilizing the services of the persons,

who are appointed with designation as Shramik, their services

are being utilizing as Cleaner to Khalasi and Sweepers. In

view of the same, as and when the petitioner is seeking any

suitable post in the respondent Corporation under

compassionate grounds, the action of the respondents not

considering the claim of the petitioner to the post of Shramik,

in the light of the Circular No.PD-37/2003, dated 26.05.2003,

is illegal and unjust.

14) Living in the nation known for moving at a rapid pace

towards gender equality, it is highly ironic that same nation's

instrumentalities like APSRTC, etc., through their highly

discriminative rules and circulars, indifferently and explicitly

are advocating gender bias. Being aware of the constitutional

provisions of Articles 14 and 15 of the Constitution of India,

the authorities have been propagating such gender bias

behind a veil-a VEIL that states girls and women are physically

incapable of working under harsh conditions, which require

muscle power and physical strength.

15) Everyone has to acknowledge the fact that women of this

nation have proven themselves at every stratification of the

society. We have women daily wage workers, who lift kilos of

sand bags for a living and we also have women pilots, who

carry an entire plane with their strength. To emphasis more,

we have women Teachers, Doctors, Lawyers, Judges, Software

employees, Wrestlers and Champions, who own us Medals at

world tournaments. We have women everywhere we require

strength. According to the scriptures of ancient India, a

"WOMAN" is "SHAKTI", which means strength, and today in

the same India, we disregard the 'SHAKTI' our women

possess.

16) Hence, the reason that women do not possess the

physical strength to perform a task as a reason to deny

compassionate appointment makes no sense. Also, harsh

conditions as they have stated also include the working hours

at which women or their families usually are not comfortable

with. While the timings of work shifts are at the discretion of

the employer and can be adjusted according to the needs,

providing a comfortable workshift timings to women is not a

herculean task to the concerned employers.

17) Under these circumstances and on careful consideration

of the circular issued by the 1st respondent, it appears to be

discriminatory on the ground of gender and as such, this Court

has no any hesitation to hold that the said circular is violative

of Articles 14 and 15 of the Constitution of India.

18) The observation made in Smt. Bhuvaneswari V.

Puranik vs. The State of Karnataka and others1 by the

High Court of Katnataka is thought provoking as it is extracted

hereunder:

"Half of the world; and not even half the chance" is the cry of the petitioner in this petition on being denied consideration for appointment on compassionate ground on the death of her father on the score that she is a married daughter".

2021(1) AKR 444 = 2021(1) SCT 125 (Karnataka)

19) The cry of the petitioner in the case of Bhuvaneswari V.

Puranik's case (1 supra) is the same cry of the petitioner in

the present case.

20) Article 14 of the Constitution of India prohibits the State

from denying any person equality before the law. Article 15 of

the Constitution of India prohibits the discrimination on the

ground of religion, race, caste, sex or place of birth. As such,

no citizen shall be discriminated on the grounds of race,

religion, caste, sex, or place of birth. The equality before law

guaranteed under Articles 14, 15 and 16 is a constitutional

right to every citizen.

21) In view of the above, this Court holds that the Circular

issued by the 1st respondent vide No.PD-37/2003, dated

26.05.2003 is unconstitutional, as it is discriminating the

women for entitlement of the posts of Shramik, Mechanic and

Chargeman (Printing), as it is violative of Articles 14, 15 and

16 of the Constitution of India.

22) For the above mentioned reasons, this writ petition is

allowed with the following directions:

(i) The Circular No.PD-37/ 2003, dated 26.05.2003 is

struck down, as it is violative of Articles 14, 15, 16 and 21 of

the Constitution of India;

(ii) The impugned proceedings in letter No.P3/684(1)/

2013-RM/KR, dated 23.12.2013 is hereby set aside;

(iii) The respondents are directed to reconsider the claim

of the petitioner for appointment on compassionate grounds to

the post of Shramik or in any suitable post, within a period of

six (06) weeks from the date of receipt of a copy of this order;

and

(iv) No order as to costs.

Consequently, miscellaneous applications pending, if

any, shall stand closed.

__________________ BATTU DEVANAND,J Dt. 26.02.2021.

Note: LR copy be marked.

Issue CC in two days.

B/o PGR

*HON'BLE SRI JUSTICE BATTU DEVANAND

+ W.P.No.18452 of 2013

% 26.02.2021

# Smt. B. Lakshmi, W/o late Sri Nenavath Srinivas, E-357838, Driver, 36 years, R/o Tummalapalem, Ibrahimpatnam (M), Krishna District.

... Petitioner.

Vs.

$ The APSRTC rep by its Managing Director, Musheerabad, Hyderabad and others. .... Respondents.

! Counsel for the petitioner: Sri S.M. Subhan.

! Counsel for the Respondents: Sri P. Durga Prasad.

< Gist:

> Head Note:

? Cases referred:

2021(1) AKR 444 = 2021(1) SCT 125 (Karnataka)

DATE OF ORDER PRONOUNCED: 26.02.2021

THE HON'BLE SRI JUSTICE BATTU DEVANAND

1. Whether Reporters of Local newspapers Yes/No may be allowed to see the Judgments?

2. Whether the copies of judgment may be Yes/No Marked to Law Reporters/Journals.

3. Whether Their Ladyship/Lordship wish Yes/No to see the fair copy of the Judgment?

_______________________ JUSTICE BATTU DEVANAND

THE HON'BLE SRI JUSTICE BATTU DEVANAND

WRIT PETITION No.18452 of 2013

Dt. 26-02-2021

Note: LR copy be marked.

Issue CC in two days.

B/o PGR