Visakhapatnam Port Trust vs Ch Suvarna Devi
2023 Latest Caselaw 795 AP

     THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR
                              AND
      THE HONOURABLE SRI JUSTICE B.SYAMSUNDER

               WRIT APPEAL No. 689 of 2022

JUDGMENT:- (Per Hon'ble Sri Justice C.Praveen Kumar)

1)     Heard Sri. P. Sriram, learned Standing Counsel for the

Appellant/Respondent      and        Sri.   S.V.R.    Subrahmanyam,

learned Counsel for the Respondent/Writ Petitioner.

2) The present Writ Appeal came to be filed under Clause

15 of Letter Patent Appeals, assailing the Order, dated

17.02.2022, passed by the learned Single Judge in

W.P.No.25034 of 2004, wherein the Writ Petition was allowed

directing the respondent therein to provide employment to the

Petitioner on compassionate grounds against any suitable

post, within a period of two months from the date of receipt of

a copy of the order.

3) The facts in Writ Petition No.25034 of 2004 are as

under:-

i. The husband of Respondent/Writ Petitioner

Sri.Satyanarayana, while working as a "Gangman" in C.E.

Department of the Appellant/Respondent, died on

31.01.2001. In the month of March, 2001, the

Respondent/Writ Petitioner submitted a representation

requesting to provide employment to her on compassionate

ground in the place of her late deceased husband. It is said

that, inaction on the part of the Appellant/Respondent

authorities, in providing employment on compassionate

grounds, she approached the erstwhile High Court of Andhra

Pradesh, by way of filing W.P.No.20493 of 2001. Initially, an

interim order, dated 03.10.2001, came to be passed directing

the Appellant/Respondent to consider the case of the

Respondent/Writ Petitioner for compassionate appointment.

ii. Subsequently, the said Writ Petition came to be

disposed off by the Composite High Court vide Order, dated

01.04.2002, taking into consideration the instructions

submitted by the learned Standing Counsel for the

Appellant/Respondent that the Respondent/Writ Petitioner

name was included in the master list and identity card was

also issued in her favor and as and when vacancy arises, the

Respondent/Writ Petitioner will be suitably provided

employment as per her qualification, eligibility and seniority.

Thus, the Respondent/Writ Petitioner is entitled to

compassionate appointment as per the scheme as and when

vacancy arises in terms of seniority.

iii. It is said that, on 15.04.2004, the

Respondent/Writ Petitioner got issued a notice calling upon

the Appellant/Respondent authorities to provide employment

to her on compassionate grounds, while referring the cases of

the others, who were provided such employment. It is said

that, when the Appellant/Respondent failed to take any

action, the Respondent/Writ Petitioner filed the Writ Petition

on 28.12.2004, which was allowed and the relief, as stated

earlier, came to be granted. Challenging the same, the

Appellant/Respondent preferred the present Writ Appeal

under Clause 15 of the Letter Patent.

4) A counter-affidavit and additional counter-affidavit

came to be filed on behalf of the Appellant/Respondent on

05.04.2005 and 04.02.2022, respectively, taking a stand that,

since the place of accident was not the duty area; the

Respondent/Writ Petitioner would not be entitled to

appointment on compassionate grounds. The additional

counter-affidavit also shows that, such appointments were

given to the dependents of the deceased employees.

5) The additional counter-affidavit filed in the month of

December, 2022, indicate that basing on declaration-cum-

option form, the Appellant/Respondent paid a sum of

Rs.3,50,000/- through cheque, dated 08.03.2012, and as the

Respondent/Writ Petitioner accepted the said amount, she is

estopped from claiming compassionate appointment in

addition to the payment made by the Appellant/Respondent

in lieu of the compassionate appointment. In view of the

above and relying on the judgment in Hindustan

Aeronautics Limited V. A. Radhika Thirumalai (Smt)1,

pleads that, the Order of the learned Single Judge does not

stand to legal scrutiny. He further submits that, since there

are no available vacancies, question of providing employment

will not arise.

6) From a perusal of the record, it is very much clear that

the Order passed by the composite High Court on 05.04.2022

in W.P. No.20493 of 2001 has attained finality. In the said

Order, the statement made by the learned Standing Counsel

(1996) 6 Supreme Court Cases 394

came to be recorded, which is to the affect that the name of

the Respondent/Writ Petitioner has been included in the

master list, identity card being issued and that the

Respondent/Writ Petitioner will be suitably provided with

employment as and when vacancies arises, depending upon

the qualification, eligibility etc.

7) After a notice was issued by the Respondent/Writ

Petitioner, calling upon the Appellant/Respondent to provide

compassionate appointment in terms of the said Order, the

present Appeal appears to have been filed in the year 2022.

Though, it is now pleaded that the Appellant/Respondent has

paid monetary compensation of Rs.3,50,000/- in the year

2012 itself and, as such, she is not entitled for employment,

but, such a plea was never raised before the learned Single

Judge, though the Order of the learned Single Judge was long

after the alleged payment was made. On the other hand, the

plea taken in the counter is something different; namely, that

the death of the employee was not while he was not on duty.

8) In-fact, in paragraph No. 7 of the counter filed before

the learned Single Judge, it was specifically averred that, if

the death of an employee occurs while in service, the name of

the son or daughter or wife of the deceased employee, to

whom the family has requested for appointment on

compassionate grounds, will be registered in the master list

for considering his/her appointment on compassionate

grounds as and when the turn comes. Since the

representations made before the learned Single Judge, and

which came to be incorporated in the Order, show that the

name of the Writ Petitioner was included in the master list for

consideration for appointment. The said order has become

final.

9) Insofar as the averment in paragraph No.9 of the

counter filed before the learned Single Judge, which is now

urged in this Appeal, namely, that in view of the notice, dated

25.09.2004, employment on compassionate grounds will be

provided if an application for such appointment was made

within three [03] years period and as no application was filed

within the said period, the Respondent/Writ Petitioner herein

is not entitled for any compassionate appointment, the

material on record, in our view, would show that an

application for compassionate appointment was made in the

year 2001 itself, for that matter, within a period of three [03]

years from the date of death. Further, the plea that the

Respondent/Writ Petitioner was provided compensation in

view of employment was never brought to the notice of the

learned Single Judge and such a ground was never urged

even in the grounds.

10) The judgment of the Hon'ble Supreme Court relied upon

by the Appellant/Respondent, though deals with issue

relating to compassionate appointment vis-à-vis vacancy and

also creating a supernumerary post for providing

compassionate appointment, as observed by us earlier, this

issue was never raised at any earlier point of time. Even

payment of compensation in view of compassionate

appointment was not urged before the learned Single Judge

though payment was alleged to have been paid by them. In

view of the lapse of time, it may not be proper for us to remit

the matter back to the learned Single Judge again.

11) Therefore, viewed from any angle, we see no ground to

interfere with the findings of the learned Single Judge and

accordingly, Writ Appeal is dismissed. No order as to costs.

12) As a sequel, interlocutory applications, if any, pending

shall stand closed.

________________________ C. PRAVEEN KUMAR, J

____________________ B.SYAMSUNDER, J

Date: 10.02.2023 SM./-

HON'BLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HONOURABLE SRI JUSTICE B.SYAMSUNDER

WRIT APPEAL No. 689 of 2022 (Per Hon'ble Sri Justice C. Praveen Kumar)

Dt.10.02.2023

SM./-