Bonam Sambhavi vs The State Of Andhra Pradesh
2023 Latest Caselaw 2771 AP

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

              WRIT PETITION No.15954 of 2021

ORDER:

This Writ Petition is filed under Article 226 of

Constitution of India for following relief/s:

"to issue an appropriate Writ, Order or direction more particularly one in the nature of Writ of Mandamus declaring the Memo in RC.C24-

142155/2014, dated 25.08.2020 issued by the respondent No.3 in rejecting the petitioners request for her appointment as Junior Assistant instead of Office Subordinate as per the G.O.Ms.No.612, General Administration (Services-A) Department, dated 30.10.1991, even though, the petitioner has fulfilled the eligibility criteria for her appointment as Junior Assistant as arbitrary, illegal, contrary to the scheme of compassionate appointment and the well established legal principles apart from being violative of the fundamental rights guaranteed to the petitioner under Articles 14, 16, 19 and 21 of the Constitution of India and consequently direct the respondent No.3 to appoint the petitioner as Junior Assistant from 14.08.2017 retrospectively with all consequential benefits and pass such other order or orders ..."

2. The issue in the present Writ Petition is that though the

petitioner is eligible for the post of Junior Assistant on

compassionate grounds as per G.O.Ms.No.612, General

Administration (Services-A) Department, dated 30.10.1991,

the petitioner was given appointment as Office Subordinate.

Therefore, the petitioner seeks a direction to the respondents

herein to accommodate her as Junior Assistant in the place of

Office Subordinate. The petitioner herein was appointed as

Office Subordinate vide proceedings in RCC No.24-

112062/2017, dated 14.08.2017 on the demise of her mother

on 01.03.2017 in harness.

3. It is the case of the petitioner herein that to hold the

post of Junior Assistant, Intermediate is the qualification as

prescribed in G.O.Ms.No.612, dated 30.10.1991 and the

petitioner herein has passed M.Sc. Micro Biology and she is

eligible to the post of Junior Assistant on compassionate

grounds as on the date of appointment. Despite she is eligible,

the respondents have issued appointment as Office

Subordinate as such petitioner requested to consider her case

for appointment as Junior Assistant instead of Office

Subordinate.

4. The petitioner relies on G.O.Ms.No.25 and 112 dated

12.03.2015 and 18.08.2017 respectively, wherein these two

G.O.s, the persons who possessed intermediate qualification,

were appointed as Junior Assistant on compassionate grounds

by giving 5 years time to acquire the degree qualification and

whereas the petitioner herein has possessed M.Sc. Micro

Biology, though she is eligible for the post of Junior Assistant,

she was given the post of Office Subordinate for the reasons

best known to the respondents. Her case was not considered

and therefore, she seeks a direction to the respondents to

appoint her as Junior Assistant in lieu of office subordinate.

5. It appears from the endorsement dated 25.08.2020, the

case of the petitioner was rejected relying on the

G.O.Ms.No.292, MA & UD Department, dated 16th May, 1992

on the ground that vacant Junior Assistant posts will be filled

up by direct recruitment.

6. Learned counsel for the petitioner would submit that the

said G.O. is not applicable and the petitioner is not seeking

any compassionate appointment on the said G.O. or seeking

any promotion to the eligible post and the petitioner ought to

have been appointed as Junior Assistant not as Office

Subordinate, as per G.O.Ms.No.612 and it was pleaded that

the rejection order is untenable and inter alia pleaded to direct

the respondents herein to consider the case of the petitioner to

appoint as Junior Assistant on humanitarian grounds so as

the deceased family is enable to maintain minimum status in

the society.

7. Learned counsel for the petitioner further submit that

petitioner was obtained information under Right to

Information Act and the respondents have issued endorsement

vide RCC 24-116-245/2019, dated 26.08.2019 and as per the

information provided under the Right to Information Act, there

are vacancies of Junior Assistant Post in the year 2017 where

as the petitioner was given appointment as Office Subordinate.

It is argued that the action of the respondents herein is

arbitrary, illegal, unconstitutional and irrational, hence,

prayed to direct the respondents herein to appoint the

petitioner as Junior Assistant in the place of Office

Subordinate. And it was explained for accepting the post of

office subordinate, as the family is in distress and it is made to

accept the post of Office Subordinate to tide over the crisis and

inter alia it is argued that mere acceptance of the said post

does not amounts to denial of the suitable post and where the

petitioner has possessed more than the requisite qualification

for the post of Junior Assistant.

8. Per contra, in oppugnation of the contentions raised by

the petitioner herein, the respondents have filed their counter

affidavit and stated that much more candidates were qualified

to hold the post of Junior Assistant, but were given posting in

last grade service. The petitioner's request at this stage

cannot be considered and other candidates who were also

given posting earlier as Office Subordinate who are having

higher education qualifications to hold the post of Junior

Assistant. As such, the petitioner cannot claim for her posting

as Junior Assistant who has been agreed for the post and after

serving four years which may be detrimental to the other

candidates who were appointed earlier in the last grade service

and having educational qualification to hold the post of Junior

Assistant.

9. And orally it is contended that the petitioner ought to

have been challenged her initial appointment having not

challenged the initial appointment, now she cannot seek a

direction to appoint her as Junior Assistant without

challenging the initial appointment. And also contended that

compassionate appointment is not a source of recruitment and

the object of compassionate appointment is thus to enable the

family to tide over the sudden crisis and also contended that

there is a delay in approaching the court and the petitioner

was given appointment in 2017 and she is filed the present

Writ Petition in 2021 and there is a delay about more than

four years and having accepted the employment as office

subordinate, the doctrine of estoppels applies and also

contend that if the petitioner is appointed as Junior Assistant,

the entire seniority list has to be redraw and the same might

create a cavil amongst the appointees and also re-exercise at

this stage would have been bearing upon the other employees.

Therefore, prayed to dismiss the writ petition. And he relied

on judgments of the Hon'ble Apex Court in Mumtaz Ynus

Mulani (Smt) v. State of Maharashtra and others1 for the

proposition that appointment on compassionate grounds can

only be granted to tide over the sudden crisis of the family of

the deceased and appointment on compassionate grounds is

not a source of recruitment. And also relied on the Judgment

of Andhra Pradesh High Court in Bathul Gabriel v. District

Manager, A.P.S.R.T.C., Kurnool,2 for the proposition that the

origin of Government service is contractual. There is offer and

acceptance in every case. Hence, once accepted the petitioner

cannot challenge, and the employee cannot compel the

employer to do so beyond the employment. And he also relied

on another Judgment in State of Rajastan v. UMRAO SINGH for

1 (2008) 11 SCC 384 2 (1982) 1 ALT 39

the proposition that once an appointee was appointed in a

particular post and accepted the same. Therefore, the right to

be considered for the appointment on compassionate ground

when the said compassionate ground was consummated. No

further consideration on compassionate ground would ever

arise. Therefore, once the right has consummated any further

or second consideration for a higher post on the ground of

compassionate would not arise. And he also relied in another

judgment in State of Uttar Pradesh & others v. Premlata3, the

Hon'ble Supreme Court observed that

The posts in classes III and IV are the lowest posts in non- manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give such family a post much less a post held by the deceased.

10. This Court relies on the Judgment of Hon'ble Apex Court

in I.G. (Karmik) and others v. Prahalad Mani Tripathi4. The

3 2022(1) SCC 30 4 (2007) 6 SCC 162

Hon'ble Apex Court has held that once a candidate is

appointed on compassionate grounds to the lower post without

any demur he cannot turn around and contend that he was

entitled for higher post having regard to the qualification and

the said proposition has been followed in judgment in Mumtaz

Ynus Mulani (Smt) v. State of Maharashtra and others (supra 1).

No doubt as per G.O.Ms.No.612, the petitioner is entitled for

Junior Assistant Post and the relevant provision is hereby

extracted:

2. Inspite of the above instructions, certain types of cases are being referred to General Administration (Services) Department either for clarification or for relaxation of the conditions stipulated in the orders governing the appointments made under the social security scheme as also under the medical invalidation scheme formulated in the G.O. third read above. The Government have examined these cases and the following orders are issued in modification of orders issued from time to time wherever they are inconsistent with those orders:-

(i) The younger brother/sister of the deceased Government servant who remained unmarried can be considered for appointment under the scheme, provided there is no other earning member in the family. The cases which came up for consideration earlier need not be re-opened.

(ii) The adopted son or daughter of the deceased Government Servant may be considered for appointment, if the adoption had taken place legally, at least five years prior to the date of demise of the Government Servant.

(iii) Where one deceased employee does not have any male child but leaves behind him a married daughter and an unmarried minor daughter, the choice of selecting one of them for appointment under the social security scheme shall be left to the mother.

(iv) If the dependents of the deceased employees are eligible to be considered for any category of post whose pay is equal or less than that of Junior Assistant (L.D.C) and if they satisfy the qualifications and physical standards prescribed for such posts, they can be considered for posts such as, Police Constable in Home Department, Excise Constable in Excise Department, Helper Grade-I and II in Forest Department, Leading Fireman/Fireman in Fire Service Department etc., In any case, no dependent of the deceased Government employee possessing higher qualifications prescribed for the posts of Assistant Engineers, Assistant Executive Engineers, Civil Assistant Surgeons etc., Shall be considered for appointment to post carrying higher scale of pay such as Assistant Engineers, Assistant Executive Engineers, Civil Assistant Surgeons etc., Since the clerical posts in Education Department/Educational Institutions are a few, the dependents of deceased employees can also be considered for the lowest teaching post i.e., posts at present carrying a scale of pay of Rs.1010-1800, in the Education Department/Educational Institutions, if they satisfy the qualifications prescribed under the rules to hold such posts.

(v) As the object of the social security scheme is to give immediate relief to the distressed family of the deceased Government employee, a minor who does not attain majority within two years as specified in Government Memo No.618/Ser.A/78-11, General Administration Department, dt.17- 12-1979 after the demise of the Government employee, shall not

be considered for appointment. In such cases it is decided to grant ex-gratia to the widow/dependent of the deceased employee. Orders regarding quantum of ex- gratia will be issued separately.

(vi) In cases where, Diploma holders who do not possess minimum educational qualifications for appointment as Junior Assistants and who have sought appointment as Junior Assistant are exempt from possessing minimum general educational qualifications, provided the duration of study to acquire such qualifications, (i.e., Diploma) is equivalent to or longer than that Intermediate.

11. (vii) Where typewriting in English (Higher) and Telugu (Higher) is an essential qualification for appointment to a post, the candidates who do not possess those qualifications may be considered for appointment to such categories of posts subject to the condition that they should acquire such qualifications within two years after such appointment.

(viii) The minimum qualification required to hold the post of Junior Assistant in the Heads of Departments/Directories is Degree and in Subordinate Offices Intermediate. The candidates for compassionate appointment who do not possess the said qualifications can be considered for appointment if they possess at least Intermediate/Tenth Class qualification respectively, by giving reasonably time to acquire higher qualification prescribed under rules to hold such posts.

12. As per the G.O., the petitioner is entitled for the post of

Junior Assistant as she is possessed the requisite qualification

on the date of appointment. However, the petitioner has

accepted the post without any demur for the post of Office

Subordinate. Now, at the belated stage of 4 years, cannot

raise that she should have been considered to the post of

Junior Assistant, as held by the Hon'ble Supreme Court and

as per the contentions raised by the respondents herein, when

the petitioner has accepted a post without any demur, now

she cannot raise at this belated stage to appoint him on the

ground that she is eligible to the post of Junior Assistant as

per G.O.Ms.No.612, dated 30.10.1991.

13. The case of the petitioner herein was rejected vide

proceedings dated 25.08.2020 relying on the G.O.Ms.No.292,

MA & UD Department, dated 16th May, 1992 on the ground

that "the vacant Junior Assistant posts will be filled up by the

direct recruitment and also by transfer of service on promotion

from the feeder category such as Bill Collectors, Record

Assistants, last grade employees and drivers in cyclic order

having 5 years of regular service in the feeder category". The

Rejection order itself is not in accordance with the relief

claimed by the petitioner herein. The case of the petitioner

herein is that she ought to have been appointed as Junior

Assistant where as she possessed requisite qualification as per

the G.O.Ms.No.612, dated 30.10.1991 and that the order

passed by the respondent herein is not inconsonance with the

relief claimed by the petitioner herein. Though the impugned

Order is not in consonance with the relief claimed by the

petitioner herein, the petitioner herein is not entitled for the

relief as per the decision quoted supra.

14. For the above said discussion, this Court finds no

reasons to direct the respondents herein to appoint the

petitioner as Junior Assistant and in view of the law laid down

by the Hon'ble Apex Court in I.G. (Karmik) case, Mumtaz Ynus

Mulani (Smt) v. State of Maharashtra and others. Hence, this

Writ Petition fails.

Accordingly, the Writ Petition is dismissed. However, no

costs.

Pending Interlocutory Applications, if any, shall stand

closed.

________________________________________ JUSTICE TARLADA RAJASEKHAR RAO

Date 03.05.2023 HARIN

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

WRIT PETITION No.15954 of 2021

Date 03.05.2023

HARIN