Andhra Pradesh High Court - Amravati

T.Srinivasa Rao vs State Of A.P. Represented By Its ... on 18 February, 2021

Bench: Battu Devanand

                                 1


     THE HON'BLE SRI JUSTICE BATTU DEVANAND


           WRIT PETITION No. 10145 of 2012


ORDER:

This Writ Petition has been filed by the petitioner

under Article 226 of the Constitution of India for the

following relief:

"... to issue Writ, Order or Direction more particularly one in the nature of Writ of Mandamus, declaring the condition 3(b)(i) in G.O.Ms.No.378, GA(Ser-A), dated 24.08.1999, as illegal, void, unjust and violative of Articles 14 and 21 of Constitution of India and set aside the Memo No.JS(Per)/DS(E)/AS (V&R)-NT/PO- 1/718/2004, dated 03.03.2009. of the 4th respondent and consequently direct the respondents to provide employment to the petitioner on compassionate grounds and pass such other order or further orders as may be just and necessary."

2) A counter affidavit has been filed on behalf of the

respondents.

3) Heard Sri K. Rama Subba Rao, learned counsel for the

petitioner, Sri M. Vidya Sagar, learned Standing Counsel

appearing for respondent Nos.2 to 4 and the learned

Government Pleader for GAD appearing for the 1st

respondent.

4) The case of the petitioner is that the father of the

petitioner while working as Plant Attendant in Boiler

Maintenance, Stage-I, in the 4th respondent Corporation,

disappeared on 26.08.2001. Immediately, the mother of

the petitioner lodged a complaint before the Station House

Officer, Ibrahimpatnam, to conduct enquiry which was

registered as Crime No.297/2001 as a "man missing case".

Thereafter, the Station House Officer, Ibrahimpatnam after

conducting investigation, filed a final report on 31.12.2001

stating the case as "undetectable" and the same was

informed to the 4th respondent by the Sub Inspector of

Police, Ibrahimpatnam on 01.10.2002.

5) Consequently, the petitioner made a representation to

the 4th respondent to provide employment under

compassionate grounds on completion of 7 years period

from the date of missing of his father. The 3rd respondent

rejected the claim of the petitioner for compassionate

appointment on the ground that there is no left over service

of 7 years to his father on the date of lodging the

complaint. Aggrieved by the same, the present writ petition

is filed.

6) In the counter affidavit filed by the respondent Nos.2

to 4, it is contended that the application of the petitioner,

whose father's whereabouts are not known, was rejected

vide Memo No.JS(Per)DS(E)/ AS(V&R-NT)PO-J/718/2004,

dated 03.03.2009 in terms of G.O.Ms.No.378, GA(Ser-A),

Dept., dated 24.08.1999 issued by the State Government,

as the left over service of the missing employee is less than

7 years to retire from the date on which the FIR was filed.

Therefore, the learned Standing Counsel sought dismissal of

the present writ petition.

7) Learned counsel for the petitioner submits that the

Memo, dated 03.03.2009 issued by the 4th respondent is

illegal, arbitrary and unconstitutional. The said Memo was

issued basing on the condition No.3(b)(i) in G.O.Ms.No.378,

GA (Ser-A) Dept., dated 24.08.1999, which itself is illegal,

void and contrary to the scheme of compassionate

appointment. As and when the Government is providing

employment under compassionate grounds to the spouse/

dependents of the deceased employee, who die in harness

without putting any condition of length of service left over,

putting a condition in condition No.3(b)(i) in

G.O.Ms.No.378, GA (Ser-A) Dept., dated 24.08.1999 that

this benefit shall not be extended to the dependents of the

Government servants, who is less than 7 years of service

from the date of filing of FIR is illegal, arbitrary and against

to the object of the appointment under compassionate

grounds. As such, learned counsel sought to declare the

condition No.3(b)(i) in G.O.Ms.No.378, GA (Ser-A) Dept.,

dated 24.08.1999 as illegal, arbitrary and violative of

Articles 14 and 21 of the Constitution of India.

8) Learned counsel for the petitioner would submit that

the Memo, dated 03.03.2009 issued by the 4th respondent

in terms of condition No.3(b)(i) in G.O.Ms.No.378, GA

(Ser-A) Dept., dated 24.08.1999, is liable to be set aside.

9) On the other hand, learned Standing Counsel

appearing for the respondent Nos.2 to 4 submits that the

application submitted by the petitioner was examined and it

was rejected vide Memo No.JS(Per)/DS(E)/AS(V&R)-NT/PO-

1/718/2004, dated 03.03.2009 in terms of condition

No.3(b) (i) of G.O.Ms.No.378, GA (Ser-A) Dept., dated

24.08.1999, as the left over service of Sri T. Babu Rao, Ex-

PA (i.e.) father of the petitioner is less than 7 years to

retire from date on which the FIR was filed. As the 2nd

respondent is the State owned Corporation, hence, the 2nd

respondent has to follow the policy and procedure

prescribed by State Government. He contended that the

order impugned in the present writ petition is neither

irrational nor unconstitutional. Therefore, the learned

Standing Counsel sought dismissal of the writ petition.

10) Having heard the submissions of the learned counsel

appearing for both sides and upon perusal of the material

available on record, it is appropriate to extract the relevant

condition No.3 in G.O.Ms.No.378, GA (Ser-A) Dept., dated

24.08.1999 as hereunder for proper adjudication of the

issue involved in this writ petition:

3. Government after careful examination of the matter, hereby direct that compassionate appointments be provided to the dependents of the Government employees, who have disappeared and whose whereabouts are not known for more than 7 (seven) years in accordance with the existing instructions on the scheme of compassionate appointments to the dependents of deceased Government employees who die in harness, subject to the following conditions:

(a) x x x x x x

(b) This benefit shall not be applicable to the case of a Government servant:-

(i) who had less than 7 (seven) years to retire on the date from which the FIR is filed: and/or

(ii) x x x x

11) As per the above mentioned condition, if a

government servant, who had less than 7 (seven) years of

service for retirement on the date from which the FIR is

filed on the ground that the said Government servant has

been missing, the benefit of compassionate appointment

shall not be applicable to the spouse and dependents of the

said Government employee.

12) As seen from the record that the Government is

providing employment under compassionate grounds to the

spouse/dependent of the deceased employee, who died

during the service without stipulating any condition of

length of service left over. The only condition is that they

shall submit application within a period of one year from the

date of death of the Government employee.

13) But in so far as missing cases are concerned, as per

the condition stipulated in condition No.3(a) of the

G.O.Ms.No.378, GA (Ser-A) Dept., dated 24.08.1999, a

request for grant of benefit of compassionate appointment

can be considered only after a lapse of 7 years from the

date from which the Government servant has been missing.

As per condition No.3(b)(i) in G.O.Ms.No.378, GA (Ser-A)

Dept., dated 24.08.1999, this benefit shall not be extended

to the dependents of Government servant, who has less

than 7 years of service from the date of filing of FIR.

14) As and when the respondents are considering the

cases of the dependents of the deceased employee, who

died in harness without stipulating any condition of service

he has left at the time of his death, but, in the cases of the

dependents of the missing Government employee

stipulating a condition that the missed government

employee shall have 7 years of service as on the date of the

filing of FIR appears to be discriminatory, arbitrary and

contrary to the object of scheme of compassionate

appointments and violative of Articles 14 and 21 of the

Constitution of India. This Court is unable to agree with the

condition No.3(b)(i) of the G.O.Ms.No.378, GA (Ser-A)

Dept., dated 24.08.1999 issued by the 1st respondent, as

there is no justification to impose such condition. In the

considered opinion of this Court, by imposing such

condition, the very object of scheme of compassionate

appointments to help the destitute families would be

defeated.

15) In the recent judgment of the Hon'ble Apex Court in

State of Himachal Pradesh vs. Shashi Kumar1 speaking

for the Bench, Dr. D.Y. Chandra Chud, J, held as extracted

hereunder:

"That appointment to any public post in the service of the State has to be made on the basis of the principles in accordance with Articles 14 and 16 of the Constitution of India and compassionate appointment is an exception to the general rule. The dependents of a deceased government employee are made eligible by the virtue of the policy on compassionate appointment and they must fulfill the norms laid down by the State's policy."

16) In the light of the above proposition of law laid down

by the Hon'ble Apex Court, it is clear that compassionate

appointment is an exception to the general rule and the

(2019)3 Supreme Court Cases 653

dependents of the deceased government employee must

fulfill the norms laid down by the State's policy by following

the law governing compassionate appointments. In view of

the same, in the considered opinion of this Court, in the

State's policy of compassionate appointments and the

conditions imposed thereunder shall be one to all and there

should not be any discriminatory treatment between the

dependents of the deceased government employee and the

dependents of the government employee, whose

whereabouts are not known.

17) In fact, as per condition No.3(b)(i) in G.O.Ms.No.378,

GA (Ser-A) Dept., dated 24.08.1999, the dependents of the

Government servant, whose whereabouts are not known,

will not get any benefit of compassionate appointment for a

period of 7 years from the date of missing/date of

registration of FIR.

18) This Court can visualize the condition of the

dependents of a Government employee who has

disappeared and whose whereabouts are not known for

more than 7 (seven) years in contrast to the condition of

the dependents of a government employee who died in

harness, in a different perspective.

19) It is an admitted fact that the death of the bread

earner of the family, undoubtedly, is utterly devastating

and harrowing to any family. However, in cases where a

government employee dies in harness, the dependents of

the government employee are being provided with financial

assistance from the employer which includes Pension, P.F.,

Gratuity, Leave Encashment, etc. The dependents, if

otherwise eligible, are also being considered for

appointment on compassionate grounds immediately.

20) But, the condition of the dependents of a government

employee, whose whereabouts are not known is very

pathetic. Being confronted with the sudden disappearance

of a family member, who is the sole bread earner of the

family would be traumatic, financially trying and halt the

everyday lives of the family members. Apart from not

getting any financial assistance from the employer until the

government employee is declared as dead after 7 years

from the date of missing, the dependents of the

government employee are not being considered for

compassionate appointment for 7 years from the date of

registration of the FIR. Under these circumstances, the

financial crisis, mental agony and distress of the family

would definitely, be unbearable and their suffering and pain

could not be explained in words.

21) This Court noticed the condition (f) of the

G.O.Ms.No.378, GA (Ser-A) Dept., dated 24.08.1999, in

which, it is provided as under:

A bond shall be obtained from the dependent of such missing Government employee, whose whereabouts are not known for more than 7 (seven) years that in the event of appearance of such missing Government employee at a later date or proved that such missing Government employee is alive anywhere, the services of the person so appointed are liable for termination.

22) It appears to protect the interest of the Government,

the condition (f) was prescribed. As such, it appears the

Government had taken all reasonable precautions to protect

the interest of the respondents, in the event of appearance

of such missing Government employee at a later date or he

is living elsewhere by terminating the services of the

appointed candidate.

23) The State Government can consider to provide

immediate relief to such families of missing government

employee from untold financial suffering of the entire family

to enable the grief stricken family to find some solace to the

mental agony and suffering and to manage its affairs in the

normal course by taking some precautionary measures as

taken in condition No.3(f) of G.O.Ms.No.378, GA (Ser.A)

Dept., dated 24.08.1999.

24) In such circumstances, when the family members of

the employee (whose whereabouts are not known) being

his/her dependents, since they had no other source of

livelihood, the respondents should have been much more

sympathetic and practical in considering their suffering and

trauma.

25) This Court is confident that the Government shall take

into account of the view expressed by this Court in this

regard and to consider the pathetic condition of such

families, and may formulate such policy/or guidelines to

help those families with humanitarian approach.

26) The view of this Court had fortified from the decision of

the Hon'ble Apex Court in Balbir Kaur vs. Steel Authority

of India Limited2, in which their Lordships held as

hereunder:

"In the case of appointment considering the social and economic justice as enshrined in the constitution, denials of deserving cases are liable to be set aside. Further, the purpose of providing compassionate ground to a son or daughter or a near relative of the deceased government servant is to render assistance to the family, which is found in indigenous circumstances. Hence, in considering the case for compassionate appointment, the authorities are supposed to adopt a humane outlook."

27) In this regard, it is worthwhile to refer the case in

the Superintending Engineer vs. V. Jaya3, wherein

their Lordships comprising a Division Bench of Madras

High Court have held at para No.7 as extracted

hereunder:

7. However, in a case of request for appointment on compassionate ground, however, the Court, while exercising its jurisdiction under Article 226 of the Constitution of India, cannot ignore the very purpose of providing employment on compassionate ground to the dependant of an employee/government servant dying in harness in preference to anybody else as it is

(2000) 6 SCC 493

(2007) 6 MLJ 1011

done so in order to mitigate the hardship to the family of the employee on account of his unexpected death while still in service. The concept of compassionate employment is intended to alleviate the distress of the family and it is for such purpose appointments are permissible and provided even in the rules and regulations and any rigid approach or too technical objections may defeat the very object of the scheme. It is for that purpose while considering the request for compassionate appointment; the authorities are expected to act as a Good Samaritan overlooking the cobwebs of technicalities.

28) For the above mentioned reasons, in the considered

opinion of this Court, the condition No.3(b)(i) of the

G.O.Ms.No.378, GA (Ser-A) Dept., dated 24.08.1999, in

which it is provided that the missing Government servant

shall have 7 years of service to retire on the date from

which the FIR is filed is discriminatory, arbitrary, unjust and

violative of Article 14 and 21 of the Constitution of India

and is liable to be struck down.

29) Accordingly, Writ Petition is allowed with the following

directions:

i) The condition No.3 (b) (i) of G.O.Ms.No.378, GA

(Ser-A), Department, dated 24.08.1999, is hereby struck