D Venkatesh vs The Apsrtc
2021 Latest Caselaw 1400 AP

 THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                WRIT PETITION NO.10262 of 2019

ORDER:

This petition is filed under Article 226 of the Constitution

of India seeking the following relief:-

"....to issue a writ of Mandamus, declaring the action of the

respondents in rejecting the case of the petitioner vie

Proc.No.E1/756(12)/15-KKL, dated 14.03.2018 by not

appointing the petitioner as Shramik or in any suitable post on

compassionate grounds, as capricious, unconstitutional,

contrary to Circular instructions and as such liable to be set

aside in the interest of justice with a consequential direction to

the respondents herein to appoint the petitioner as Shramik or

in any suitable post forthwith ..."

2. It is the case of petitioner that the father of the petitioner

late D.M. Pullaiah, E.426694, Driver of Koilakuntla Depot was

found medically unfit for the post of Driver in A1 category, vide

M.C.No.120352, dated 27.10.2014. He was also found unfit for

all categories by the Superintendent (Medical), APSRTC, Tarnaka

Hospital, Hyderabad and he was directed for re-medical

examination on appeal. As such, he was finally directed to

medical board on review of appeal and the Medical Board also

declared him as unfit for A1 category and also other categories

due to CAD, S/P CABG, PPI by the Medical Committee Board

Tarnaka Hospital, Hyderabad. Father of the petitioner, who has

been found medically unfit for A1 category, has retired on

medical grounds w.e.f 28.01.2015 under Reg.6(A-4) of APSRTC

Employees (Service) Regulations, 1964 and he is eligible for

Additional Monetary benefits for left over service i.e.,

employment to his children and other available service benefits.

3. Accordingly, on 27.07.2015 the petitioner's father made an

application to provide employment to the petitioner, same was

received and registered in their office, but unfortunately, father

of the petitioner D.M. Pullaiah died on 19.07.2017. The

petitioner has no source of income consequent upon the death of

their father. Thereupon, the petitioner submitted a

representation on 27.07.2015 for consideration of his case for

his appointment on compassionate grounds in the category of

Shramik as he is eligible for appointment under "Bread Winner

Scheme". But, the rejection of the claim of the petitioner vide

Orders, dated 14.03.2018 is arbitrary and contrary to the said

scheme and requested to issue a direction to the respondent

authorities as stated supra.

4. The respondents filed counter denying the material

allegations made in the writ petition, while admitting retirement

of D.M.Pullaiah on medical grounds as he is unfit for all

categories due to CAD, S/P CABG, PPI, by the Medical

committee board, Tarnaka Hospital, Hyderabad and also about

his death on a particular date.

5. It is specifically pleaded that the application of this

petitioner was not considered in terms of Circular No.PD-

19/2015, dated 03.06.2015, as father of the petitioner had

retired on medical grounds on 28.01.2015 i.e., prior to issue of

circular to provide employment to the children of medically unfit

employees. Further, the respondents advised the petitioner to

claim for AMB amount by the Depot Manager, Koilakuntla. The

cases of the children of the deceased employees were considered

for the post of Shramiks during the year 2017 under "Bread

Winner Scheme", but not the children of the employees, who

retired on medical grounds, as stated by the petitioner. The

respondent Corporation has not considered under "Bread

Winner Scheme" any of the children of the employees who

retired on medical grounds till date.

6. It is further contended that the children of the deceased

employees and the children of employees, who retired on

medical grounds before issuance of the Circular are different

and they are not one and the same. The seniority list of the

children of the deceased employees will be taken based on the

date of death of employee and the seniority list of children of

employees retired on medical grounds will be maintained based

on the date of retirement on medical grounds.

7. As the petitioner is not eligible for the employment as

father of the petitioner had retired on medical grounds on

28.01.2015 and the circular was issued on 03.06.2015 to

consider the cases of the children of employees, who retired on

medical grounds. Hence, the writ petition is liable to be

dismissed and requested to dismiss the writ petition.

8. During hearing, Sri S.M. Subhani, learned counsel for the

petitioner reiterated the contentions urged in the writ petition,

while drawing the attention of this Court to the Circular issued

regarding scheme for appointment on compassionate grounds in

Cirular No.PD-19/2015, dated 03.06.2015 and on the strength

of the Guidelines 3 and 7, the petitioner sought to issue a

direction to the respondents as stated supra.

9. Whereas, Sri N.Srihari, learned Standing Counsel for

APSRTC appearing for the respondents contended that this

Circular has no retrospective effect and it is only applicable to

few cases and that the death of father of petitioner has taken

place on 28.01.2015, whereas the Circular was issued on

03.06.2015. In the absence of any retrospective effect to the

Circular, the respondent cannot be allowed to take advantage of

Circular, dated 03.06.2015 and requested to dismiss the writ

petition.

10. Undisputedly, as per the Circular, dated 03.06.2015,

certain guidelines were issued for appointment of children of the

employees retired on medical grounds and the employees died

during service.

11. As per Guideline 3 of the Circular, the medically unfit

employees, on preferring employment to their spouse or child,

are not eligible either for alternative employment to themselves

or for receiving Additional Monetary Benefit under Reg.6A

(5) (a) or (b) of APSRTC Employees' (Service) Regulations, 1964

as applicable in each case.

12. Similarly, according to Guideline 7, the applications for

appointment of the spouse or child may be entertained within a

period of five years from the date of retirement or employees on

medical grounds, so as to enable such applicants to acquire the

required eligibility. The scheme permits appointments of all

children who retired on medical grounds in any suitable post

subject to other conditions prescribed in the Circular.

13. Admittedly, the father of the petitioner D.M.Pullaiah died

on 28.01.2015, by that time the Circular was not in existence,

but it was issued only on 03.06.2015 based on the judgment of

the Apex Court in V.Sivamurthy Vs. State of Andhra Pradesh

and Others1, wherein the Hon'ble Supreme Court has upheld

the Scheme of providing compassionate appointment to a

dependant of a medically unfit Government Servant.

In W.P.No.26638/2013 and in W.P.No.6893/2015 filed by the

medically unfit Drivers of APSRTC the High Court of Judicature

at Hyderabad for the State of Telangana and the State of Andhra

Pradesh issued certain directions to provide employment to the

spouse/child of the petitioners therein.

14. Therefore, based on the above Orders, the said Circular

was issued. The judgments are preceded by the Circular and if

the principles laid down in the Orders are applied, the petitioner

being the child of retired employee of RTC on medical grounds is

entitled for appointment on medical grounds.

(2008) 13 SCC 730

15. Therefore, by applying the principle laid down in V.Siva

Murthy's case (referred supra) and the Orders in

W.P.No.26638/2013 and in W.P.No.6893/2015 referred in the

Circular which are prior to the Circular and the petitioner is

eligible for being considered to appoint on the ground that his

father retired from service on medical grounds i.e., premature

retirement. Therefore, notwithstanding the Circular issued by

the respondents, dated 03.06.2015 based on the principle laid

down by the Apex Court and the Division Bench of the High

Court of Judicature at Hyderabad for the State of Telangana and

the State of Andhra Pradesh, the petitioner is entitled to claim

appointment being the son of a retired employee of RTC on

medical grounds.

16. Therefore, notwithstanding the Circular, dated 03.06.2015,

the respondent Corporation is liable to appoint the petitioner in

a suitable post based on the principles laid down in the above

Orders to provide employment on compassionate grounds is

contrary to the law laid down by the Apex Court and Division

Bench of the High Court of Judicature at Hyderabad for the

State of Telangana and the State of Andhra Pradesh.

17. Consequently, the contention of the learned Standing

Counsel that the Circular has no retrospective effect and will not

stand to any legal scrutiny as the contention of the learned

Standing Counsel appearing for the respondent Corporation is

contrary to the principles laid down in the Orders referred above

irrespective of its applicability either prospective or retrospective,

the respondents are bound to consider the representation,

if any, made by the petitioner after satisfying the requirements

and eligibility for his appointment in a suitable post.

18. Though the petitioner sought to issue a direction to the

respondent Corporation to appoint the petitioner on

compassionate grounds, this Court cannot issue such direction,

except to issue a direction to consider the application submitted

by the petitioner for his appointment in a suitable post, in view

of the principles laid down in the above Orders referred supra.

19. In view of my foregoing discussion, I find rejection of the

application submitted by the petitioner, is illegal and arbitrary,

consequently, the same is set aside.

20. In the result, this Writ Petition is allowed. No costs.

As a sequel, interlocutory applications, pending if any shall

stand closed.

_________________________________________ JUSTICE M.SATYANARAYANA MURTHY

Date: 05.03.2021

IS

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

WRIT PETITION NO.10262 of 2019

Date: 05.03.2021

IS