Andhra Pradesh High Court - Amravati

Shaik Mastanbi, vs State Of Andhra Pradesh on 12 February, 2021

Bench: M.Satyanarayana Murthy

    THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                    WRIT PETITION NO.1019 OF 2020
ORDER:

This writ petition is filed under Article 226 of the Constitution

of India seeking the following relief:

"to issue an order, writ or direction more particularly in the nature of Writ of Mandamus declaring the action of the 2nd Respondent in issuing Memo No.Ser.III(2)/473512/2017 dated 04.04.2017 rejecting the petitioner's claim for compassionate appointment is illegal and arbitrary and unconstitutional and violative of Article 14, 19 and 21 of Constitution of India and consequently declare that the petitioner is entitled to be appointed on compassionate grounds in any suitable and regular NMR post as per her eligibility consequent to the death of her husband Late K.Hussen (NMR in Time Scale Office Sub Ordinate in PR) with all consequential benefits."

It is the case of the petitioner that her husband K.Hussen (NMR

in Time Scale Office Sub-ordinate in PR) worked as NMR watchman in

the office of Panchayat Samiti, Parchuru since 11.08.1983. The

authorities suspended her husband from his service on 01.05.1988.

Thereafter, her husband filed Writ Petition 8315 of 1988 before this

Court, and this Court allowed the said writ petition directed the

authorities to reinstate him into service. Thereafter, the authorities

issued proceedings vide Letter No.A5/4095/89 dated 07.09.1989

appointed the husband of the petitioner as NMR watchman in

Panchayat Raj Guest House, Chirala. The husband of the petitioner

was appointed as NMR watchman vide G.O.Rt.No.1225 dated

22.08.2009 along with some other persons. Respondent No.3 issued

proceedings vide Rc.No.A1/Estt/09 dated 13.10.2009 for sanctioning

of payment of minimum time scale + D.A. and he worked as NMR on

payment of Time scale office subordinate in the office of Deputy

Executive Engineer, Panchayat Raj department. The husband of the

petitioner died on 28.08.2016 while he was in service leaving behind

him his two daughters and the petitioner. But they are unable to MSM,J WP_1019_2020

maintain themselves as they have no earning capacity and they are

very poor persons. The petitioner and her two daughters have no

other means to eke out livelihood except widow pension. Therefore,

the petitioner made an application dated 21.11.2016 requesting the

authorities to provide compassionate appointment as watchwoman on

outsourcing basis, consequent upon to the demise of her husband.

The petitioner is entitled for compassionate appointment in any

suitable post as per her eligibility consequent upon the death of her

husband with all consequential benefits, but respondent No.2 issued

memo No.Ser.III(2)/473512/2017 dated 04.04.2017 rejecting her

request for compassionate appointment, without recording any

reasons. In the said memo, respondent No.3 was directed to take

necessary action to accommodate the petitioner on outsourcing basis

as watchwoman/sweeper on humanitarian grounds since she has no

livelihood to survive. But as on date, no action was taken by

respondent No.3. Therefore, in action of respondent Nos.2 to 4 is

illegal, requested to allow the writ petition.

Sri Rambabu Koppineedi, learned counsel for the petitioner,

reiterated the contentions urged in the writ petition.

Learned Government Pleader for Services-III opposed the writ

petition since there was no relationship of employer and employee

between the respondents and the petitioner since the deceased was

only NMR. Though minimum time scale is extended to him, the

scheme of compassionate appointment cannot be invoked to appoint

the petitioner on outsourcing basis at least.

Admittedly, the husband of the petitioner died while working as

NMR watchman, but minimum time scale is extended in terms of

G.O.Rt.No.1225 dated 22.08.2009, there is a relationship of master

and servant, but not permanent employee under the employer, MSM,J WP_1019_2020

thereby the scheme of compassionate appointment is not extended to

the NMRs. Consequently, the petitioner being the wife of the deceased

NMR is not entitled to claim compassionate appointment. Unless the

petitioner fulfilled the norms, the Court cannot issue a direction for

her appointment on compassionate grounds.

Learned Government Pleader for Services-III placed on record

the judgment of the Apex Court in "N.C.Santhosh v. State of

Karnataka1", wherein it is held as follows:

"In the most recent judgment in "State of Himachal Pradesh v. Shashi Kumar2" the earlier decisions governing the principles of compassionate appointment were discussed and analysed. Speaking for the bench, Dr. Justice D.Y. Chandrachud reiterated that appointment to any public post in the service of the State has to be made on the basis of principles in accord with Articles 14 and 16 of the Constitution and compassionate appointment is an exception to the general rule. The Dependent of a deceased government employee are made eligible by virtue of the policy on compassionate appointment and they must fulfil the norms laid down by the State's policy.

Applying the law governing compassionate appointment culled out from the above cited judgments, our opinion on the point at issue is that the norms, prevailing on the date of consideration of the application, should be the basis for consideration of claim for compassionate appointment. A dependent of a government employee, in the absence of any vested right accruing on the death of the government employee, can only demand consideration of his/her application. He is however disentitled to seek consideration in accordance with the norms as applicable, on the day of death of the government employee."

But, the said judgment is not directly on the issue.

In "the Vice Chairman, Vijayawada v. V.Padma3" the High

Court of Judicature at Hyderabad held as follows:

"It is not in dispute that there is no scheme in existence which provides for compassionate appointment of dependants of deceased NMR employees whose services have not been regularised. Yet the jurisdiction of the Tribunal was invoked claiming compassionate appointment. No person can approach the court seeking a relief when he does not have a right which can be enforced through the Court. (State of Gujarat v. Arvindkumar T. Tiwari4). It may be that a provision for compassionate appointment is made as a measure of social

AIR 2020 SC 1401

(2019) 3 SCC 653

2015(4)ALT311

(2012) 9 SCC 545 MSM,J WP_1019_2020

benefit, but it does not mean that the court should pass an order for compassionate appointment despite the fact that the conditions precedent therefor have not been satisfied. Courts and Tribunals cannot ignore the mandatory provisions of the Rules, and direct compassionate appointment, on sympathetic considerations. They do not have the power to issue direction to make appointment granting relaxation of the eligibility criteria or in contravention thereof.

Courts and Tribunals should not fall prey to the sympathy syndrome, and issue directions for compassionate appointments, without reference to the prescribed norms. Every such act of undue sympathy and compassion, whereby directions are issued for appointment on compassionate grounds dehors the prescribed procedure, could deprive a needy family, requiring financial support, of the opportunity of seeking employment, and thereby pushing into penury a truly indigent, destitute and impoverished family.

Discretion is, therefore, ruled out. So also misplaced sympathy and compassion. In the absence of any scheme, providing for compassionate appointment for dependants of deceased NMR employees, the Tribunal has erred in directing the petitioners herein to consider the case of the 1st respondent on compassionate grounds."

In view of the law declared in the said judgment (referred

supra), the petitioner is not entitled for benefit of compassionate

appointment. However, the petitioner is not claiming regular

employment, but requesting appointment on outsourcing basis.

Therefore, the petitioner is directed to approach the Andhra Pradesh

Corporation for Outsourced Services and on submission of her

application, the concerned authorities are directed to consider her

application on humanitarian grounds only.

In the result, the writ petition is dismissed while permitting the

petitioner to approach the Andhra Pradesh Corporation for

Outsourced Services and on submission of her application, the

concerned authorities are directed to consider her application on