Katikireddy Dilip Kumar, vs Telangana State Road Transport ...
2022 Latest Caselaw 4982 Tel

      THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


                 WRIT PETITION NO.2760 OF 2016


                               ORDER

This Writ Petition has been filed by the petitioner seeking a Writ,

Order or Direction particularly one in the nature of Writ of Mandamus

declaring the order passed by the 3rd respondent in Proceedings

No.LC/WP/785(39)/2015-RM/KRMR, dated 07.10.2015 refusing to

consider the case of the petitioner for appointment under Bread Winner

Scheme as illegal, arbitrary and in violation of principles of natural

justice.

2. Brief facts leading to the filing of this Writ Petition are that the

petitioner's father had joined the respondent Corporation as a casual

worker on 18.04.1981 and his services were orally terminated on

20.09.1984. The petitioner's father raised an ID in I.D.No.117 of 1989

and the same was allowed directing the respondents to reinstate the

petitioner's father into service with attendant benefits from 28.07.1987.

Aggrieved, the respondent Corporation had filed a Writ Petition in

W.P.No.5077 of 1992 which was dismissed vide orders dt.30.04.1997.

W.P.No.2760 of 2016

In the meantime, the petitioner's father died and the petitioner herein,

who is the son of the employee, filed an application for consideration of

his case for compassionate appointment and when the same was not

considered by the respondents, the petitioner filed W.P.No.205454 of

2015. The Writ Petition was disposed of by this Court directing the

respondent Corporation to consider the petitioner's case for

compassionate appointment under Bread Winner Scheme. When the

petitioner made a representation to the respondents along with the copy

of the order of this Court, the respondents informed the petitioner that

his father was removed from service on 10.05.1995. It is the case of the

petitioner that his father had reported for duty on 16.06.1994 and

thereafter, he did not turn up and that a complaint was also lodged as a

missing case by his mother on 18.06.1994 and even thereafter, the

whereabouts of his father were not known and subsequently it was

known that he was killed in suspicious circumstances. It is submitted

that a false criminal case was lodged against the petitioner's mother for

the death of his father, but she was ultimately acquitted in S.C.No.908 of

1997 vide judgment dt.14.09.2001. It is submitted that since the

petitioner's father was kidnapped and murdered, he is deemed to be in

continuous service till it was confirmed that he had died and therefore, W.P.No.2760 of 2016

the order passed by the respondents removing him from service, i.e.,

after his death, is not valid and sustainable.

3. Sri A.K.Jaya Prakash Rao, learned counsel for the petitioner,

submitted that the impugned order dt.07.10.2015 rejecting the

representation of the petitioner for compassionate appointment on the

ground that the father of the petitioner was already removed from

service and that he was only a temporary employee and therefore,

compassionate appointment cannot be considered, is bad in law and

hence has to be set aside. He submitted that the father of the petitioner

was killed in mysterious circumstances and the same was also reported

in newspapers and therefore, the father of the petitioner is deemed to

have been dead as on 16.06.1994. He relied upon the death certificate

issued by the Tahsildar dt.13.06.2008 in support of his above

contention. He also placed reliance upon the additional material papers

filed before this Court to demonstrate that the services of other casual

workers who were appointed with the father of the petitioner were

regularised vide proceedings dt.25.03.1997 and therefore, the

petitioner's father also should be deemed to have been regularised with W.P.No.2760 of 2016

effect from the said date and his case for compassionate appointment

should be considered from the said date.

4. The learned Standing Counsel for the respondents, Sri A. Ravi

Babu, on the other hand, relied upon the averments in the counter

affidavit and stated that the petitioner's father had worked up to

16.06.1994 and thereafter, had not reported for duty and on the ground

of continued absenteeism, he was removed from service on 10.05.1995.

He further submitted that the death certificate relied upon by the learned

counsel for the petitioner is also not reliable. He submitted that the

petitioner's contention that his father died in suspicious circumstances is

correct but the date of death is doubtful. Further, it is reiterated that

since the petitioner's father was not a regular employee, the case of the

petitioner for consideration under Bread Winner Scheme also cannot be

considered and the same has rightly been intimated to the petitioner by

way of the impugned letter.

5. The learned Standing Counsel for the respondents also placed

reliance upon the judgments of the Hon'ble Supreme Court in the case W.P.No.2760 of 2016

of State of Uttar Pradesh and others Vs. Premlata1 and also in the

case of Steel Authority of India Limited Vs. Gouri Devi2 in support of

his contention that there is no need to make appointment on

compassionate grounds if it is proved that in spite of death of the bread

winner, family survived for a substantial period thereafter.

6. The learned counsel for the petitioner, in rebuttal, submitted that

the workers/employees who were appointed along with the petitioner's

father in the year 1981 have been regularised subsequently in the year

1997 and had the petitioner's father been alive, he also would have been

regularised with effect from 01.08.1996 and therefore, the petitioner's

father should be deemed to be regularised and the petitioner's case

should be considered for compassionate appointment.

7. Having regard to the rival contentions and the material on record,

it is not in dispute that the petitioner's father had died in

mysterious/suspicious circumstances. However, it cannot be disputed

that the petitioner's father died on or after 16.06.1994. It appears that

when the whereabouts of the petitioner's father were not known, the

(2022) 1 SCC 30

AIR 2022 SC 783 W.P.No.2760 of 2016

respondents have passed the order of dismissal dt.10.05.1995. However,

even if it were to be true that the respondents were not aware of the

death of the petitioner's father, the order of dismissal would come into

effect only when it is communicated to the employee. Clearly, the said

order has not been communicated to the petitioner's father. Further, any

order passed against a dead person is not maintainable. In such

circumstances, the case of the respondents that the petitioner's father has

been removed from service for continued absenteeism and therefore, the

case of the petitioner for compassionate appointment cannot be

considered, is not sustainable.

8. The other ground on which the request of the petitioner has not

been considered is that the father of the petitioner was not a regular

employee. As rightly pointed out by the learned counsel for the

petitioner, the petitioner's father had already put in more than 15 years

of service and was eligible for regularisation under G.O.Ms.No.212

dt.22.04.1994 and the regularisation of his services was pending due to

administrative reasons and the services of similarly placed persons were

regularised in the year 1997.

W.P.No.2760 of 2016

9. The Government of Andhra Pradesh had issued G.O.Ms.No.118,

Finance and Planning (FW.PC.III) Dept., dt.18.08.1999 to consider the

cases of the dependants of such deceased employees who are eligible to

be regularised and the dependants of such employee are entitled for

compassionate appointment if the regularisation of the employee was

pending for administrative reasons. As it is not the case of the

respondents that the petitioner's father was not eligible for

regularisation, but it is only their case that he was not regularised as on

the date on which he went missing or is deemed to have died, this Court

is of the opinion that as per G.O.Ms.No.212, Finance and Planning

(FW.PC.III) Dept., dt.22.04.1994 and G.O.Ms.No.118 dt.18.08.1999,

the petitioner's father was eligible for regularisation, the respondent

Corporation is directed to reconsider the case of the petitioner for

compassionate appointment if the said G.O. has been adopted by the

respondent Corporation herein. The respondents are directed to take a

decision on the representation of the petitioner in view of the above

directions within a period of six (6) weeks from the date of receipt of a

copy of this order and communicate the orders being passed thereon to

the petitioner.

W.P.No.2760 of 2016

10. The Writ Petition is accordingly disposed of. No order as to costs.

11. Pending miscellaneous petitions, if any, in this Writ Petition shall

stand closed.

___________________________ JUSTICE P. MADHAVI DEVI Date: 10.10.2022 Svv