Andhra Pradesh High Court - Amravati

Sk Abdul Rahim vs Andhra Pradesh State Road ... on 28 March, 2022

Bench: Ravi Nath Tilhari

                       *HON'BLE SRI JUSTICE RAVI NATH TILHARI

                         +WRIT PETITION No.23723 of 2020

                                        %28.02.2022

# Sk. Abdul Rahim, S/o. late Sk.
Masthan, aged about 30 years,
Occ: Unemployee,
R/o. H.No.24-1-1096,
Neelagiri Sangam,
Mulapet, Nellore,
SPSR Nellore District.
                                                                      ....Petitioner.

And:

      1. Andhra Pradesh State Road
         Transport Corporation,
         rep. by its Vice Chairman
         and Managing Director,
         APSRTC, Vijayawada,
         Krishna District.
      2. The Regional Manager,
         APSRTC, Nellore,
         SPSR Nellore District.
      3. The Depot Manager,
         Nellore-II Depot,
         Nellore,
         SPSR Nellore District.
                                                                   ....Respondents

! Counsel for the petitioner:                         Sri P. Gangarami Reddy


^ Counsel for the respondents                         : Sri P. Durga Prasad


< Gist:
> Head Note:



? Cases referred:
1
    (2012) 11 Supreme Court Cases 307
2
  (2005) 10 SCC 289
3
  (2004) 7 SCC 265
4
  (2004) 7 SCC 271
5
  (2008) 11 SCC 384
6
  (2014) 13 SCC 583
7
  (2010) 11 SCC 661
                                  2




               HON'BLE SRI JUSTICE RAVI NATH TILHARI

                 WRIT PETITION No.23723 of 2020

                            28.02.2022

Sk. Abdul Rahim,
S/o. late Sk. Masthan,
aged about 30 years,
Occ: Unemployee,
R/o. H.No.24-1-1096,
Neelagiri Sangam,
Mulapet, Nellore,
SPSR Nellore District.
                                                        ....Petitioner.

And:

  1. Andhra Pradesh State Road
     Transport Corporation,
     rep. by its Vice Chairman
     and Managing Director,
     APSRTC, Vijayawada,
     Krishna District.
  2. The Regional Manager,
     APSRTC, Nellore,
     SPSR Nellore District.
  3. The Depot Manager,
     Nellore-II Depot,
     Nellore,
     SPSR Nellore District.
                                                     ....Respondents

       DATE OF JUDGMENT PRONOUNCED: 28.02.2022.

       SUBMITTED FOR APPROVAL:


            THE HON'BLE SRI JUSTICE RAVI NATH TILHARI


  1. Whether Reporters of Local newspapers may           Yes/No
     be allowed to see the Judgments?

  2. Whether the copies of judgment may be                Yes/No
     Marked to Law Reporters/Journals

  3. Whether Your Lordships wish to see the fair
     Copy of the Judgment?                                Yes/No




                                             ________________________
                                             RAVI NATH TILHARI, J
                                      3



             HON'BLE SRI JUSTICE RAVI NATH TILHARI

                  WRIT PETITION No.23723 OF 2020


JUDGMENT:

1. Heard Sri P. Gangarami Reddy, learned counsel for the petitioner

and Sri K.M.R Balakrishna, representing Sri P. Durga Prasad, learned

standing counsel for the respondents 1 to 3.

2. The petitioner has challenged the order of rejection of his

appointment on compassionate grounds by the 2nd respondent in

proceedings No.LC/876(3)/2018-RM(N) dated 07.09.2020 and has

prayed for a direction to the respondents to appoint the petitioner to a

suitable post basing on his qualification on compassionate ground.

3. The petitioner‟s father who was working as driver in the

respondent-Corporation i.e Andhra Pradesh State Road Transport

Corporation (in short APSRTC), died on 25.04.2005 during service

period. At that time, the petitioner was minor and attained the majority

on 28.08.2006. In APSRTC for a period, with effect from 01.01.1998 to

31.03.2013, the recruitment on compassionate grounds were stopped

and in lieu of employment, the „Bread Winner Scheme‟ (in short the

Scheme) was operative by providing additional monitory benefits to the

family of the deceased employee, which could be availed based on the

willingness only, of the family of the deceased.

4. The petitioner‟s mother, applied for the additional monetary

benefits under the scheme on 11.05.2005 in lieu of employment as the

petitioner, her son, was not eligible. When the matter remained

pending, she submitted another representation dated 28.07.2009 for

additional monetary benefits under the scheme. The Corporation on

consideration of representation, paid the additional monetary benefit of

Rs.1,00,000/- on 22.12.2009. All other eligible terminal and death

benefits were also paid to the petitioner‟s mother.

5. After attaining majority and pursuant to the circular

No.W4/140(25)15-POI-AP dated 17.06.2016 the petitioner applied for

his appointment on compassionate ground and the petitioner‟s mother

represented before the respondents that she was ready to refund the

additional monetary benefit which she received under the scheme.

6. Since the representation remained pending, the petitioner along

with his mother filed Writ Petition No.3483 of 2018 which was disposed

of finally vide order dated 23.12.2020 directing the respondents to

consider and take decision on the said representation considering his

case on humanitarian grounds and if possible to grant compassionate

appointment to the petitioner on refund of the additional monetary

benefits by the mother of the petitioner.

7. Pursuant to the order dated 23.12.2020, the petitioner‟s

representation was considered but was rejected by the impugned order

dated 07.09.2020.

8. Learned counsel for the petitioner submits that the petitioner‟s

mother did not opt for the additional monetary benefit under the

scheme, voluntarily, but was forced to do so on the pretext that,

otherwise her application shall be closed without any benefit, due to

lapse of three years.

9. Learned counsel for the petitioner further submits that as per the

circular dated 17.06.2016 it was mandatory for the respondents to

provide employment and not providing the employment is contrary to

the circular.

10. Learned counsel for the respondents submits that the circular

dated 17.06.2016 pursuant to which the petitioner applied for his

appointment is not applicable to the petitioner as the families of the

deceased, who had availed the benefit of the scheme, are outside its

purview. He further submits that the petitioner‟s mother had received

the benefits in lieu of the employment under the scheme voluntarily.

11. I have considered the submissions advanced and perused the

material on record.

12. The relevant part of the circular and guidelines dated 17.06.2016

of the A.P.S.R.T.C, which reads as under:

"Besides, the change in the educational qualifications required in view of long ban period, it is proposed to invite applications afresh from the dependents of deceased employees who fulfill the revised eligibility criteria of pass in SSC or its equivalent examination and whose cases arose during the ban period for the post of Shramik as a onetime measure before 30.07.2016 as they might not have applied in view of the pre revised ITI (Diesel Mechanic) qualification required for Shramiks provided such families had not availed AMB and no other family member has already availed the said facility."

13. A perusal of the circular and guidelines, shows that it was

applicable to those families of the deceased who had not availed the

additional monetary benefit under the scheme. The additional

monetary benefit was provided to the families of the deceased at their

will, in lieu of employment, considering the ban on such employment

during specified period, if claim for such employment arose during that

period. Admittedly, the petitioner‟s mother had availed the additional

monetary benefit under the scheme. Consequently, the petitioner was

not entitled to apply pursuant to the circular dated 17.06.2016, which

also did contain any provision for providing compassionate appointment

after refund of the additional monetary benefit already received under

the Bread Winner Scheme.

14. The Hon‟ble Apex Court in the case of Union of India and

another vs. Shashank Goswami and another1 reiterated that the

claim for appointment on compassionate grounds is based on the

premises that the applicant was dependent on the deceased employee.

Strictly, such a claim cannot be upheld on the touchstone of Article

14 or 16 of the Constitution of India. However, such claim is considered

as reasonable and permissible on the basis of sudden crisis occurring

in the family of such employee who has served the State and dies while

in service. Appointment on compassionate ground cannot be claimed as

a matter of right. As a rule public service appointment should be made

strictly on the basis of open invitation of applications and merit. The

appointment on compassionate ground is not another source of

recruitment but merely an exception to the aforesaid requirement

taking into consideration the fact of the death of the employee while in

service leaving his family without any means of livelihood. In such cases

the object is to enable the family to get over sudden financial crisis and

not to confer a status on the family. Thus, applicant cannot claim

appointment in a particular class/group of post. Appointments on

compassionate ground have to be made in accordance with the rules,

regulations or administrative instructions. Where the scheme provides

that in case the family of the deceased gets the retiral/terminal benefits

exceeding a particular ceiling, the dependant of such deceased

employee, would not be eligible for compassionate appointment.

Paragraphs 9 to 13 and 16 of Shashank Goswami (supra) are being

reproduced as under:-

"9. There can be no quarrel to the settled legal proposition that the claim for appointment on compassionate ground is based on the premises that the applicant was dependent on the deceased employee. Strictly, such a claim cannot be upheld on the

(2012) 11 Supreme Court Cases 307

touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. Appointment on compassionate ground cannot be claimed as a matter of right.

10. As a rule public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of the employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis and not to confer a status on the family. Thus, applicant cannot claim appointment in a particular class/group of post. Appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased.

11. This Court in Govind Prakash Verma v. Life Insurance Corporation of India & Ors.,2 while dealing with a similar issue i.e. whether payment of terminal/retiral benefits to the family can be taken into consideration, held as under:

"In our view, it was wholly irrelevant for the departmental authorities ..... to take into consideration the amount which was being paid as family pension to the widow of the deceased ..... and other amounts paid on account of terminal benefits under the Rules. . ..... Therefore, compassionate appointment cannot be refused on the ground that any member of the family received the amount admissible under the Rules."

12. This Court in Punjab National Bank & Ors. V. Ashwini Kumar Taneja3, placing reliance upon the earlier judgment in General Manager (D&PB) & Ors. V. Kunti Tiwari & Anr.,4 , held that compassionate appointment has to be made in accordance with the Rules, Regulations or administrative instructions taking

(2005) 10 SCC 289

(2004) 7 SCC 265

(2004) 7 SCC 271

into consideration the financial condition of the family of the deceased. Whereas the scheme provides that in case the family of the deceased gets the retrial/ terminal benefits exceeding a particular ceiling, the dependant of such deceased employee, would not be eligible for compassionate appointment.

13. In Mumtaz YunusMulani (Smt.) v. State of Maharashtra & Ors.,5 , this Court examined the scope of employment on compassionate ground in a similar scheme making the dependant of an employee ineligible for the post in case the family receives terminal/ retiral benefits above the sealing limit and held that the judgment in Govind Prakash (supra) had been decided without considering earlier judgments which were binding on the Bench. The Court further held that that the appointment has to be made considering the terms of the scheme and in case the scheme lays down a criterion that if the family of the deceased employee gets a particular amount as retiral/terminal benefits, dependent of the deceased employee would not be eligible for employment on compassionate grounds.

16. In view of the fact that, in the instant case the retiral/ terminal benefits have been received by the family exceeding Rs.3 lakhs, respondent No.1 is not eligible to be considered for the Group 'C' post. In view of the above, the appeal succeeds and is allowed. The impugned judgments/orders stand set aside."

15. In MGB Gramin Bank vs. Chakrawarti Singh6, the Hon‟ble Supreme

Court reiterated that the application has to be considered in accordance with

scheme. In case the scheme does not create any legal right, a candidate

cannot claim consideration of his case. Paragraphs 12 and 13 of MGB

Gramin Bank (supra) are being reproduced as under:-

"12. A scheme containing an in pari materia clause, as is involved in this case was considered by this Court in State Bank of India & Anr. vs. Raj Kumar7. Clause 14 of the said Scheme is verbatim to clause 14 of the scheme involved herein, which reads as under:

"14. Date of effect of the scheme and disposal of pending applications:

(2008) 11 SCC 384

(2014) 13 SCC 583

(2010) 11 SCC 661

The Scheme will come into force with effect from the date it is approved by the Board of Directors. Applications pending under the Compassionate Appointment Scheme as on the date on which this new Scheme is approved by the Board will be dealt with in accordance with Scheme for payment of ex-gratia lump sum amount provided they fulfill all the terms and conditions of this scheme."

13. The Court considered various aspects of service jurisprudence and came to the conclusion that as the appointment on compassionate ground may not be claimed as a matter of right nor an applicant becomes entitled automatically for appointment, rather it depends on various other circumstances i.e. eligibility and financial conditions of the family, etc., the application has to be considered in accordance with the scheme. In case the Scheme does not create any legal right, a candidate cannot claim that his case is to be considered as per the Scheme existing on the date the cause of action had arisen i.e. death of the incumbent on the post. In State Bank of India & Anr. (supra), this Court held that in such a situation, the case under the new Scheme has to be considered."

16. In the present case, the Additional Monetary benefit was received by the

petitioner‟s mother and under the Circular dated 17.06.2016 such families of

the deceased are not entitled for compassionate appointment.

17. In view of the aforesaid, the submission of the petitioner‟s counsel

that there is violation of the circular, dated 17.06.2016 and the

impugned order is contrary to the circular, cannot be sustained.

18. There is nothing on record to substantiate the plea of forced

exercise to opt for the scheme. It is undisputed that the petitioner‟s

mother firstly in 2006 and secondly in 2009 gave representations for

the additional monetary benefits under the scheme. Besides, this being

a disputed question of fact cannot be gone into in the exercise of writ

jurisdiction and that too after expiry of almost thirteen years from the