G.V. Pavan Kumar, vs The State Of Andhra Pradesh
2022 Latest Caselaw 4307 AP

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          THE HON'BLE Dr.JUSTICE K. MANMADHA RAO

                   WRIT PETITION No.12284 of 2021

ORDER:

This Writ Petition is filed under Article 226 of the Constitution

of India, seeking the following relief:

".....to issue a Writ, Order or direction more particularly one in the nature of Writ of Mandamus declaring the impugned order made in Rc.No.A2/4947/2015, dated 25.05.2019 by the respondents as illegal, arbitrary and contrary to the Law. Consequently direct the respondents to assign notional promotion and seniority on par with their immediate junior together with monetary benefits and pass such other orders."

2. The brief facts of the case are that the petitioners were

appointed as Junior Accountants on compassionate grounds under

breadwinner scheme as their respective fathers were died during

service. The 3rd respondent issued appointment orders with a

condition to acquire qualification of any of the Certificate Course in

Computers within a period of two years from the date of their

appointments. The petitioners have passed computer course in Office

Automation conducted by the SBTET, A.P as stipulated in their

appointment orders and also passed all departmental tests and they

are eligible for promotion up to the post of ATO. Therefore the

petitioners are entitled for regularization of their services and they

have completed more than 7 years of unblemished service. The 3rd

respondent issued order dated 20.11.2017 without issuing any

notice, surrendering the petitioners to the District Collectors, on the

ground that the Government issued Circular dated 04.12.2013

clarifying that the original scheme of compassionate appointment

formulated by General Administration Department is applicable only

to the regular employees in Government Departments, but the

dependents of Public Sector undertaking/ Local Bodies through they

have adopted the above scheme cannot be given compassionate

appointment in the Government Departments and they have to be

appointed only in their respective organization as per their rules.

Aggrieved by the same, the petitioners filed O.A.Nos.3223 of 2017 and

1793 of 2017 before the A.P.Administrative Tribunal, which was

allowed on 27.06.2018 and set aside the impugned surrender orders

and further directed to continue the petitioners in services. Pursuant

to the said orders, the respondents have declared the probation and

regularized the services besides granting sanctioned annual

periodical increments from time to time and also sanctioned the

break up period as earned leave. However, the respondents passed

the present impugned orders withholding the regularization of the

petitioners and other proceedings made pursuant to the orders of the

A.P.Administrative Tribunal on the alleged ground of administrative

reasons, though the impugned order says that "withheld temporary",

it continuous till date and it has not yet been revoked. By virtue of

impugned orders, the juniors of the petitioners have been promoted

to higher posts by ignoring the seniority of the petitioners, which is

illegal and arbitrary. Hence this writ petition came to be filed.

3. Per contra, the 2nd respondent filed counter-affidavit by

denying all material averments made in the writ affidavit and mainly

contended that the petitioners have fulfilled the condition and passed

Certificate Course in Computers viz., Office Automation. As such in

normal course, their services have to be regularized from the date of

acquiring the technical qualification. As per instructions of

Government vice Circular Memo. No.35252/Ser.G/A1/2011-I, GA

(Ser.G) Department, dated 04.12.2013 the appointing authority is not

to make compassionate appoints with the legal heirs of deceased

employees belongs to local bodies i.e Zilla Parishads, Municipalities,

Mandal Parishads and Gram Panchayats in Government offices. As

such, both the petitioners have no right to continue in the Treasuries

and Accounts Department as the parents of the petitioners were died

while working in local bodies. Further it is contended that the 1st

respondent have issued instructions on 02.05.2021 to the 2nd

respondent vide e-File No. FIN02-11036/16/2018-A SEC-DTA

(Computer No.622128) that the petitioners are appointed in

Government Departments in deviation to the orders issued in

Circular Memo No.35252/Ser.G/A1-2011-1, dated 04.12.2013. The

action of the competent authorities is not in accordance with the

rules. If the department is considered the request of the individuals,

they may be adjusted in their respective local bodies as per said

Circular Memo. Accordingly the 3rd respondent vide proceedings

dated 30.06.2017 and 20.11.2017 has surrendered the services of

the petitioners to the District Collector.

4. Aggrieved by the said the petitioners have filed O.A.Nos.

3223 of 2017 and 1793 of 2017 before the Hon'ble A.P.Administrative

Tribunal. As per its orders, the petitioners have been continued as

Junior Accountants in 3rd respondent office pending further orders

from the Tribunal vide 3rd respondent proceedings dated 12.12.2017

and 12.07.2017. The petitioners have rejoined as Junior Accountants

on 13.12.2017 and 12.07.2017 F.N respectively. In obedience to the

orders of learned Tribunal in the above said O.As the 1st respondent

vide Memo dated 30.08.2018 directed to take necessary action as per

the orders of the learned Tribunal and directed to instruct all his sub-

ordinate offices to follow the guidelines issued in Circular Memo No.

35252/Ser.G/ A1-2011-1, dated 04.12.2013 strictly in future and the

same was communicated to 3rd respondent.

5. It is further contended that as per Memo No.

71558/Ser.A/98-1, G.A Department, dated 23.11.1998 have clarified

that the scheme of compassionate appointment to the dependents of

Government employees, who died in harness as well as

compassionate appointment to the dependents of the Government

employees, who retire on medical invalidation are applicable to

Government servants only, but not to employees of Municipal

Corporation and Municipalities and local bodies. The said

instructions is in force before the appointment of the petitioners and

also instructions i.e not to appoint children of the deceased

employees of the local bodies into the Government offices is in force

as on the date of appointment of the petitioners. As such, the

contention of petitioners that they have appointed prior to issue of

Government Circular Memo dated 04.02.2013 is not acceptable, since

these instructions are in continuation of the earlier instructions

issued in 1998 as stated supra. As such the legal heirs of the

deceased employees belonging to local bodies cannot be given

compassionate appointment in the Government Departments as per

Circular Memo dated 04.12.2013. Hence the petitioners are not

entitled to any relief as claimed in the writ petition and requested to

dismiss the writ petition.

6. Learned counsel for the petitioners placed on record the

order of the A.P.Administrative Tribunal dated 27.06.2018 in

O.A.No.1793 of 2017 with V.M.A.No.241 of 2017 and O.A.No.3223 of

2017 with V.M.A.No.42 of 2018, wherein the learned Tribunal has

taken into consideration of the decision of learned Tribunal in

O.A.No.1668 of 2015 and batch, dated 15.12.2015 by relying on the

Judgments of the Apex Court and held that the direction of the

Government in Circular Memo No.35252/Ser.G/A1/2011-1, dated

04.12.2013 restricting the compassionate appointment to be made by

excluding employees of Zilla Parishad, Mandal Parishad and Gram

Panchayats cannot be held to be proper and legal.

7. Following the decisions stated supra, this Court inclined to

allowed the Writ Petition, while declaring the impugned order in

Rc.No.A2/4947/2015, dated 25.05.2019 by the respondents as illegal

and arbitrary; consequently direct the respondents to assign the

notional promotion and seniority to the petitioner on par with their

next junior along with monetary benefits, within a period of four (04)

weeks from the date of receipt of a copy of this order.

8. With the above direction, the writ petition is allowed. There

shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any, shall

also stand closed.

__________________________________ DR.JUSTICE K. MANMADHA RAO Date: 20.07.2022.

KK

THE HON'BLE Dr.JUSTICE K. MANMADHA RAO

WRIT PETITION No.12284 of 2021

Date: 20.07.2022.

KK