Andhra Pradesh High Court - Amravati

Pathan Subhani, vs State Of Andhra Pradesh on 23 February, 2022

     THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

                WRIT PETITION No.5286 of 2021

JUDGMENT

Heard Sri Ravi Kondaveeti, learned counsel for the petitioner and

Sri Aswath Narayan, learned GP for Services - I, appearing for the

respondents.

2. This writ petition has been filed for the following relief:

"...to issue a Writ Order or Direction more particularly one in the nature of Writ of Mandamus declaring the Memo No.793391/Pris. & Fire/A1/2019 dt. 9-2-2021 issued by the 1st respondent in rejecting the claim of the petitioner for regularization of his services as wholly illegal, arbitrary, violative of Articles 14, 16 and 21 of the Constitution of India apart from being violative of principles of natural justice and total non- application of mind, and consequently declare that the Petitioner is entitled for regularization of his services with all consequential benefits with effect from his initial date of appointment i.e., 12-10-1993 and pass such other order..."

3. The petitioner's father Sri Dada Khan, who was working as full

time Masalchi in the Court of Additional Munsiff Magistrate, Tenali and

absorbed as Class-IV employee on 21.11.1982 in a regular vacancy as per

the orders of the District Judge, Guntur and was drawing regular pay scale

attached to the post, died during service period in the year 1993. The

petitioner was given appointment on compassionate ground by order

dated 12.10.1993 by the District Judge, Guntur and since then the

petitioner is continuously working. He later on submitted a representation

for regularization of his services, but the same was rejected by order

dated 24.06.2019 stating that it was time barred and the appointment on

compassionate ground cannot be given. The petitioner submitted

representations dated 20.12.2020 and 28.12.2020 stating that he was

already appointed in a sanctioned vacancy on compassionate ground and 2 RNT, J WP.No.5286 of 2021

his prayer was for regularisation but those representations were again

rejected by order dated 09.02.2021 reiterating the first order dated

24.06.2020.

4. Challenging the aforesaid order, this writ petition was filed.

5. The learned counsel for the petitioner submits that the

impugned orders suffer from non-application of mind and have been

mechanically passed without considering that the petitioner was given

appointment on compassionate ground vide order dated 12.10.1993 and

he had not requested for any appointment, but requested for

regularization of his services.

6. Sri Aswath Narayan, learned GP for Services - I for the

respondents submits, that the petitioner was appointed against leave

vacancy on 31.05.1993. It is not correct to say that the petitioner was

given any appointment on compassionate ground and as the petitioner

was appointed against leave vacancy there is no question of regularizing

his services and the appointment on compassionate ground cannot be

given after such a long time. There is no illegality in the order under

challenge.

7. I have considered the submissions advanced by the parties and

perused the record.

8. The petitioner's father died on 15.08.1993 in service, and prior

thereto he was on medical leave. The petitioner was initially appointed

against such leave vacancy for a period with effect from 01.06.1993 to

30.06.1993 by order dated 31.05.1993, which was ratified on 07.06.1993.

Learned GP for Services - I has placed reliance on these orders dated

31.05.1993 and 07.06.1993 to submit that the petitioner was appointed

temporarily as Full Time Sweeper, Sub-Jail, Tenali in the leave vacancy

ratified on 07.06.1993. There is no dispute about the orders dated 3 RNT, J WP.No.5286 of 2021

31.05.1993 and 07.06.1993 but after the death of the petitioner's father

the petitioner was again given fresh appointment on 12.10.1993.

9. The order of the petitioner's appointment dated 12.10.1993 is

being reproduced as under:

"ORDER:

The District Judge, Guntur is pleased to make the following arrangement with immediate effect:

Sri Patan Subhani (Son of Patan Dada Khan, who died on 15.8.1993 while working as Full Time Sweeper, Sub Jail, Tenali) is appointed as Full Time Sweeper, Sub Jail, Tenali in the vacancy existing due the demise of Sri P. Dada Khan."

10. From the aforesaid it is clear that the petitioner was appointed

on compassionate ground as his father died on 15.08.1993 during service

period, and he was appointed as Full Time Sweeper, Sub Jail, Tenali in the

vacancy existing due to demise of the petitioner's father. The vacancy

caused due to death of the petitioner's father would not a leave vacancy.

It cannot be said that the petitioner's appointment was against the leave

vacancy or was not a compassionate appointment.

11. There is no dispute on the point that at the relevant point of

time the learned District Judge was the competent authority for granting

appointment on compassionate ground. The submission of the learned GP

for Services _ I that the petitioner's appointment was not on

compassionate ground is not correct being contrary to record.

12. The orders, dated 24.06.2019 and 09.02.2021 read as under:

"Order, dated 24.06.2019:

The attention of the Director General of Prisons and Correctional Services, Andhra Pradesh, Vijayawada is invited to the reference cited. He is informed that the request of Sri P. Subhani, S/o.late P. Dada Khan, Full Time Contingent Sweeper, Sub-Jail, Tenali for providing appointment on compassionate grounds has been examined and the same 4 RNT, J WP.No.5286 of 2021

is hereby rejected as the request is time barred and it it not feasible to accept as per rules in force."

Order, dated 09.02.2021:

The attention of the Director General of Prisons & Correctional Services, Andhra Pradesh, Vijayawada is invited to the references cited. He is informed that Sri P. Subhani, S/o. Late P. Dada Khan, Full time Contingent Sweeper, Sub-Jail, Tenali has again submitted representations to Government on the same request vide reference 2nd cited for providing appointment on Compassionate grounds. In this context, it is informed that the request has been already been examined and the same was rejected by the Government as the request is time barred and it is not feasible to accept as per rules in force, vide reference first cited."

13. The petitioner's prayer in representation dated 20.12.2020

(annexed to the writ petition) is reproduced as under:

"....As I already submitted above, as I was appointed in a regular sanctioned vacancy on compassionate grounds on account of death of my father, I am entitled for regularization of my services from the date of my initial appointment.

In the above circumstances, I humbly request your Honour to kindly regularize my services from the date of my initial appointment with all consequential benefits in view of the fact that I was appointed in a regular sanctioned vacancy on compassionate grounds on account of death of my father, who is a regular employee, for which of your kindness I shall ever remain grateful to your goodself."

14. From the above, it is evident that the petitioner's prayer was

not considered in the correct perspective. The orders impugned cannot

be justified and deserve to be quashed.

15. Consequently, the orders, dated 24.06.2019 and 09.02.2021

are quashed.

16. The petitioner is granted liberty to file a fresh representation

along with a copy of this judgment before the competent

authority/respondent No.1, through proper channel, within a period of

two weeks, upon which, the competent authority shall pass a reasoned 5 RNT, J WP.No.5286 of 2021

order within further period of four weeks and shall communicate the

decision so taken to the petitioner immediately thereafter.

17. Accordingly, the writ petition stands allowed with the aforesaid