Telangana High Court

S.Shyam vs Telangana State Southern Power ... on 27 September, 2024

Author: Nagesh Bheemapaka

Bench: Nagesh Bheemapaka

       HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

             WRIT PETITION No. 11469 OF 2012

O R D E R:

This Writ Petition questions the action of the 2nd

respondent - Superintending Engineer (Operation), Central

Circle, TSSPDCL in issuing rejection letters dated 30.11.2010

and 14.03.2012 and in not considering petitioner's case for

compassionate appointment as arbitrary, illegal and violative of

Articles 14, 16 and 21 of the Constitution of India and contrary

to the A.P. Revised Pension Rules, 1980 read with the Hindu

Succession Act 1956. A consequential direction is sought to the

2nd respondent to pay one-fifth share of terminal benefits to

petitioner and consider his case for compassionate appointment

against any suitable post in terms of F.0.0.Ms.No.51, dated

28.05.2001.

2. Pursuant to the order dated 09.11.2023 in I.A.No. 1

of 2023, cause title of Respondents 1 to 3 was amended.

3. The case of petitioner is that his brother Sri

S. Narsimha died on 02.06.2009 in an accident, while in service

as Junior Accounts Officer in the 3rd respondent Office. His wife

Smt. S. Uma Rani died on 30.10.2006 during life time of

Narsimha and they were issueless. Petitioner therefore, made

representation dated 03.07.2009 requesting the Tahsildar

Khairathabad Mandal to issue family member certificate, on

whose advice vide Memo dated 10.08.2009, petitioner and other

family members filed O.S. No. 4569 of 2009 on the file of the V

Junior Civil Judge, City Civil Courts, Hyderabad seeking a

declaration that they are legal heirs of late S. Narismha. The

suit was decreed on 27.04.2010 declaring plaintiffs as legal

heirs of late S. Narsimha. Therefore, petitioner made

representations dated 19.05.2010, 04.05.2011, 19.05.2011,

23.08.2011 and 05.09.2011 to the 2nd respondent requesting to

appoint him in any suitable vacancy in the department and also

to pay one-fifth share to each of the legal heirs in the terminal

benefits of late S. Narsimha. Petitioner also made representation

dated 26.03.2011 to the Secretary, Electricity Employees' Credit

Society, Mint Compound Hyderabad to arrange for payment of

Credit Society amount arising out of the death late S. Narsimha

to petitioner. He made representations dated 01.04.2011,

06.05.2011 to the Assistant Accounts Officer, ERO APCPDCL,

AC Guards, Hyderabad requesting payment of GPF amount and

other amount (i.e May 2009 Salary).

It is stated that pursuant to petitioner's Application

dated 19.05.2010 enclosing thereto copy of judgement and

decree dated 27.04.2010 in the suit, the 3rd respondent

appeared to have addressed letter dated 30.07.2010 and the 2nd

respondent appeared to have addressed another letter dated

16.08.2010 to the Chief General Manager (HRD) of the 1st

respondent company seeking clarification for settlement of

terminal benefits of Sri S. Narasimha, JAO; consequently, the

1st respondent issued detailed clarification vide memo dated

22.10.2010 stating that petitioner and other family members

come under the definition of 'family' in terms of Rule 46(5) of the

A.P. Revised Pension Rules 1980, as such they ought to have

been paid terminal benefits, but the 2nd respondent without

reading the said memo in its proper perspective and Rules 46,

47, 48 and 49, issued the impugned rejection letter dated

30.11.2010 informing that the Gratuity/Pension stands lapsed,

without assigning any reason as to why and how gratuity of the

deceased stands lapsed. Therefore, on this ground alone, the

said letter is liable to be set aside, as the same was issued

without giving any reason.

It is stated further that petitioner submitted

representations dated 04.05.2011, 19.05.2011 and 23.08.2011

and 05.09.2011 to the 2nd respondent again requesting payment

of terminal benefits and for considering his case for

compassionate appointment, however, the latter issued the

impugned letter dated 14.03.2012 informing that petitioner's

representation for settlement of terminal benefits was disposed

of as negative.

4. Writ Petition was admitted on 20.04.2012, however,

the Application for interim order was dismissed by order dated

13.12.2013. Subsequently, vide order dated 13.12.2023 in

I.A.No. 2 of 2023, brother, sister-in-law, nephew and brother-in-

law of the deceased employee were brought on record as

Respondents 4 to 7.

5. On behalf of the official respondents, the

Superintending Engineer stated in the counter-affidavit that

petitioner was informed about the negation of his representation

vide impugned letters as he is not a dependent family member.

He draws attention of this Court to the Revised Pension Rules,

1980. As per Rules 47, 48 and 49, 'Family' in relation to

Government servant means:

(i) Wife or Wives, in the case of male Government servant.

              (ii)       Husband in the case of a female Government
                         servant.
              (ii)        Sons including step-sons, posthumous sons, and
                         adopted sons (whose personal law permits such
                         adoption)
              (iii)       Unmarried daughters including step daughters,

Posthumous daughters and adopted daughters(whose personal law permits such adoption)

(iv) Widowed daughters including step-daughters and adopted daughters

(v) Father and mother

(vi) Brothers below the age of 18 years including step brothers

(vii) Unmarried sisters and widowed sisters including step sisters

(viii) Married daughters

(x) Children of pre-deceased son.

According to respondents, petitioner crossed 18

years, hence, he will not fall in the definition of 'FAMILY'; as per

qualifications and age mentioned in his Bio-data, he was X pass

and aged 38 years. It is stated B.P.Ms No 247, dated 17.03.1989

stipulates the upper age limit for the suitable post ie. Record

Assistant as 34 years. As per G.O.Ms.No.612, dated 30.10.1991

para-2(1), younger brother / sister of the deceased government

servant who remained unmarried can be considered for

compassionate appointment provided there is no other earning

member in the family. The Government vide Memo dated

20.04.2000 clarified that the words 'remained unmarried'

occurring in para-2(i) of GO.Ms. No. 612, dated 30.10.1991 are

applicable to the deceased government employee only; therefore

in cases where the deceased government employee remained

unmarried, then only the younger brother/ sister of such

deceased employee can be considered for compassionate

appointment provided there is no other earning person in the

family. Based on the above clarification, the request of

petitioner for compassionate appointment was rejected. As per

B.P.Ms.No. 119, dated 10.02.1982 in para 3 Rule V & VI

relaxation to education qualifications or age cannot be given

under any circumstances and appointment made under this

scheme should be treated as distinct category in itself and not

related to Employment Exchange procedure as well as rule of

reservation. A Note shall be made of these appointments

specifically by the appointing authorities in appropriate terms to

the effect that appointments have been made in terms of the

said B.P. and that they have no relaxation to rosters. The roster

position shall however, be followed in the normal course without

taking into account the appointments made under this scheme.

It is stated that pursuant to the clarification

received from Corporate Office on two occasions, action was

taken and informed the same to petitioner by registered post for

negation of his representations. It is stated that petitioner is

not entitled to any compassionate appointment as he is not a

family member within the definition of 'Family' as per Rule 46(5)

of AP Revised Pension Rule 1980. The A P Transco in order No.

TOO(Spl.secy-per)MS.No.51, dated 28.05.2001 issued orders

for providing employment to younger brothers, if any under 18

years of age and to unmarried sisters, if any, but, in this case,

by the time of death of S. Narasimha, all his brothers

attained/crossed 18 years and all his sisters were married and

living separately, therefore, they are not eligible for any benefits

and compassionate appointment, in terms of Rules 45,46 & 47

(3) of A.P. Revised Pension Rules,1980.

6. Petitioner filed reply stating that he is not claiming

pension or pensionary benefits of the deceased employee,

therefore pension rules are not applicable in the present case.

It is his case that himself and Respondents 4 to 7 are legal heirs

of the deceased employee as declared in O.S. No. 4569 of 2009,

vide order dated 27.02.2010 and legal heirs are entitled for the

right to property of the deceased employee as well as terminal

benefits. Since the deceased employee died while in service of

TSSPDCL MINT Compound, Hyderabad, one of the legal heirs is

eligible for compassionate appointment under the social security

scheme as there is no earning member in the family. According

to petitioner, compassionate appointment shall always be

treated as an exception to the normal method of recruitment

and to the general rules of Recruitment process. It is further

stated that AP TRANSCO in its order No. 100 (spl.sot- par) M.S

No. 51, dated 28.05.2001 clearly directed that younger

brother/sister of deceased employee who remained un-married

can be considered for appointment under compassionate

grounds provided there is no earning member in the family, they

are entitled for the terminal benefits and other benefits if any to

the extent of 1/5 each and petitioner being un-

employed/unmarried is entitled for compassionate appointment.

7. Heard Sri N. Indrasena Reddy, learned counsel for

petitioner, Sri R. Vinod Reddy, learned Standing Counsel for the

official respondents and Sri P. Devender, learned counsel for

unofficial respondents and perused the record.

8. The prayer of petitioner is two-fold; 1) he is entitled

to receive one-fifth share of terminal / pensionary benefits along

with other legal heirs of the deceased employee, as declared by

the competent civil Court; and 2) he is entitled for

compassionate appointment as there is no other earning

member in the family. He relies on the clarification issued by

the 1st respondent vide memo dated 22.10.2010 stating that

petitioner and other family members come under the definition

of 'family' in terms of Rule 46(5) of the A.P. Revised Pension

Rules 1980, as such they ought to have been paid terminal

benefits. But the case of official respondents is otherwise. They

state that petitioner is not entitled to any compassionate

appointment as he is not a family member within the definition

of 'Family' as per Rule 46(5) of AP Revised Pension Rule 1980.

Respondents invited attention to the order dated 28.05.2001

issued by the A.P. Transco for providing employment to younger

brothers, if any under 18 years of age and to unmarried sisters,

if any, but, in this case, by the time of death of S. Narasimha,

all his brothers attained/crossed 18 years and all his sisters

were married and living separately, therefore, they are not

eligible for any benefits and compassionate appointment, in

terms of Rules 45,46 & 47 (3) of A.P. Revised Pension Rules,

1980. As per Rules 47, 48 and 49, 'Family' in relation to

Government servant means '....... Brothers below the age of 18

years including step brothers'. The 1st respondent also clarified

that that as per Rule 46(5) of the 1980 Rules, family members

for the purpose of payment of retirement gratuity includes

'brothers below the age of 18 years including step brothers.

Admittedly, petitioner crossed 18 years at the time of death of

deceased employee, hence, he will not fall in the definition of

'FAMILY' to receive retirement benefits.

9. However, it is to be noted here that Rule 47(3)

stipulates that 'the right of a female member of the family, or

that of a brother, of a Government servant who dies while in

service or after retirement, to receive the share of gratuity shall

not be affected if the female member marries or re-marries, or

the brother attains the age of eighteen years, after the death of

the government servant and before receiving her or his share of

the gratuity'. In view of the same and since the competent civil

Court declared petitioner along with others as legal heirs of the

deceased employee, petitioner is entitled to receive one-fifth

share of the gratuity amount only.

10. As regards compassionate appointment, under

T.O.O. Ms. No. 51, dated 28.05.2001, younger brother / sister

of the deceased employee who remained unmarried can be

considered for appointment under compassionate grounds,

provided there is no other earing member in the family. As per

G.O.Ms.No.612, dated 30.10.1991 para-2(1), younger brother /

sister of the deceased government servant who remained

unmarried can be considered for compassionate appointment

provided there is no other earning member in the family. The

Government vide Memo dated 20.04.2000 clarified that the

words 'remained unmarried' occurring in para-2(i) of GO.Ms. No.

612, dated 30.10.1991 are applicable to the deceased

government employee only; therefore in cases where the

deceased government employee remained unmarried, then only

the younger brother/ sister of such deceased employee can be

considered for compassionate appointment provided there is no

other earning person in the family. Based on the above

clarification, since admittedly, the deceased employee was

married before his death, the request of petitioner for

compassionate appointment was rejected.

11. Yet another aspect to be considered is with regard

to compassionate appointment. Learned counsel for petitioner

in this context relied on the judgment of the High Court of

Judicature at Madras in R. Sivarman v. The Secretary,

Department of Culture, Tourism & Endowments (W.P.No.

7765 of 2016), wherein the Madras High Court allowed the writ

petition by directing the respondent authorities to consider the

case of petitioner therein based on the rationale of the judgment

in P. Pandi Selvam v. The Chief Engineer - Personnel, Tamil

Nadu Electricity Board, Chennai (CDJ 2015 MHC 1342)

wherein P. Pandi Selvam's case was directed to be considered

treating it as a special case. He also relied on the judgment in

Jhon Mahanta v. Oriental Insurance Co.Ltd. in WP (C) 8875

OF 2018. It has been held as under:

" 24. This Court is inclined to take this view on the ground that the

primary purpose of appointment under die in harness scheme is to provide certain benefits to the immediate and close family members who are wholly dependent on the deceased employee. Adopting this approach will fulfill the intended beneficial purpose of the scheme. This category of family members can also be observed, viz. Brothers and sisters, are not completely excluded from the scheme. In case the deceased employee is "unmarried" these family members dependent on sister and brother have their own right under this category. So, this category, otherwise, is not foreign to the scheme. However, this category is excluded only if the deceased employee is married, whereas if the deceased

employee is unmarried, such dependent family members are eligible for benefit under the scheme.

25. While taking this view this Court has kept in mind the beneficial nature of the scheme which is to provide assistance to the immediate family members who are fully dependent as mentioned in the scheme. It can also be observed from the scheme that such immediate family members should be "wholly dependent" on the deceased employee. Preference is given to the situation of immediate family members, i.e., they must be fully dependent on the deceased employee. Therefore, as the married employee has left behind sons or daughters, they are not eligible to apply for appointment under the "otherwise"

scheme.

"Sole reliance" on the deceased employee. What is emphasized and emphasized under the scheme is that such immediate family members must be "wholly dependent" on the deceased employee.

Therefore, this dependency factor is probably the key and perhaps even the determining factor for extending this benefit. Even if the claimant falls under the category of eligible claimants, the claim cannot be entertained if he/she is not "wholly dependent" of the deceased employee.

In this regard, even if the brother or sister is "wholly dependent"

on the deceased employee who is married but still widowed, the wholly dependent brother or sister, in the opinion of this Court, leaves no issue. Eligible to apply for appointment under the scheme.

29. The difference in the present case is that the category of brothers and sisters of an unmarried deceased employee are eligible to apply for compassionate appointment and the other category of brothers and sisters of a married deceased employee are not eligible for compassionate appointment. Thus, the difference is clearly discernible. One set of brother and sister of unmarried deceased employee and another set of trouble and sister of married deceased employee.

We have now to examine whether this distinction has a rational connection with the object sought to be achieved by the Act.

In the present case, the objective of the scheme is to provide assistance to the dependent family members of the deceased employee.

As stated above, the brothers and sisters of the unmarried deceased employee are eligible for appointment under the scheme, as the unmarried deceased employee should not be expected to have any spouse or any son or daughter. scheme.

For the same reason, the brother and sister of the deceased married employee are not eligible for appointment under the scheme, as the

deceased married employee usually has a spouse and a son or daughter, in which case, the benefit is not extended, brother or sister Clearly, though this classification seems reasonable, on closer examination, it is found not to be so as in the present case and it cannot be said that this classification has a rational nexus to the object sought to be achieved. We have already seen that the deceased sister of the petitioner, though married, did not leave any spouse as her husband predeceased her and she also had no son or daughter. In such circumstances, the brother and sister of the deceased married employee wholly dependent on her shall lose the benefit of appointment under the scheme, unless the deceased employee leaves a spouse or a son or daughter. The injustice done to such brothers and sisters. As we have already discussed above, the purpose of this beneficial scheme is to provide assistance to the dependent family members on the death of the deceased employee. By denying the dependent brother and sister of the deceased married woman, who died as a widow without issue, the opportunity to apply for compassionate appointment under the scheme, it cannot be said to be consistent with the policy of providing financial assistance by appointment. Dependent family members of the deceased employee. The object Page No.# 20/25 of Karunya appointment, as we have noticed earlier, is to protect the family from financial hardship and to provide help in time of need. Therefore, it must be examined whether the distinction is understandable and reasonable and, if so, whether such distinction has any rational nexus with the object of the policy for compassionate appointment. Viewed from this point of view, although the above classification seems reasonable, there does not seem to be any reasonable or rational connection with the purpose of such classification. If the stated intention is to help the family members who are wholly dependent on the deceased employee, one fails to understand why a section of brothers and sisters who are wholly dependent on the deceased employee should be deprived of the benefit of mere compassionate appointment. Because their brother/ sister employee is married, while brothers and sisters of unmarried employee are eligible for appointment under the scheme.

In the opinion of this Court, since the aforesaid classification cannot be said to bear reasonable nexus with the purpose of the scheme, a reasonable classification involving an intelligible difference does not pass the test, and therefore such classification is violative of Article 14 of the Constitution India. A benefit is denied to a similar class of wholly dependent family members because of the marital status of the deceased employee, which is not reasonably related to the purpose of the Act, ie, to provide assistance to dependent family members. Deceased employee.

IN W.P.No.7765 of 2016, HIGH COURT OF

JUDICATURE AT MADRAS held as under:

6. In G.O.Ms.No.34, Labour and Employment (Q1) Department dated 16.04.2002, it is clearly stated that appointment on compassionate ground could be given only to unmarried brother/unmarried sister of the unmarried deceased Government Servant who dies in harness while in service. According to the counter of the respondent, as per G.O.(Ms)No.560, Labour and Employment Department, dated 03.08.1977, compassionate appointment could be provided only to the direct legal heirs such as wife/husband/son/unmarried daughter/near relative of the deceased Government servants and cases of "near relatives" such as brothers/sisters etc of the deceased Government servants should be excluded. Though the petitioner's brother was a married person, he got divorce and had no issues and after divorce, the petitioner and his family was totally dependent on the income of his brother and as on date, except the petitioner, no one is available to seek for compassionate appointment. In these circumstances, I am of the opinion that appropriate direction can be given to the respondents to consider the representation of the petitioner in the light of G.O.Ms.No.34, Labour and Employment (Q1) Department dated 16.04.2002. This Court, in an identical situation in P.Pandi Selvam v. The Chief Engineer - Personnel, Tamil Nadu Electricity Board, Chennai and another [CDJ 2015 MHC 1342], has directed the respondent therein to consider the application of the petitioner therein as a special case. The said judgment is squarely applicable to the facts of the present case.

7. In the result, this Writ Petition is allowed and the impugned order of the respondent in Letter No.14527/Aa.Na.Mu1/2015-1 dated 8.2.2016 is set aside and the respondent is directed to consider the representation of the petitioner seeking appointment on compassionate ground in the light of the judgment in P.Pandi Selvam v. The Chief Engineer - Personnel, Tamil Nadu Electricity Board, Chennai and another [CDJ 2015 MHC 1342].

In SMT.DIPLOMA BARUAH VS STATE OF ASSAM

{WP (C ) No.136 of 2018}, it has been held as under:

"3. It is stated by the learned state counsel that the upper age limit for government service is 43 years and therefore, the rejection of the case of the petitioner was made on a factually in- correct basis. Moreover, this Court in its judgment and order dated

24.08.2017 in WP(C) No.2989/2010 in paragraph-7 had held that the relevant office memorandum providing the upper age limit for government service if made applicable in respect of compassionate appointment also, the same would defeat the very object of the claim for compassionate appointment for providing immediate succour to the dependants of a deceased employee. Relevant praragraph-7 of the said judgment is as follows:-

"That apart, which is more important looking at the policy behind the scheme of compassionate appointment, the Office Memorandum dated 4.1.92 cannot be made applicable for compassion ate appointment. The object of the compassionate appointment scheme being to provide immediate succour to the family of the deceased, if the concept of age bar applicable in the case of normal direct recruitment is imported in to the concept of compassionate appointment, it is possible in many cases that the spouse of the deceased will be over aged when a case for making com passionate appointment arises. For example, if a deceased employee dies at the age of 55 years, leaving behind his widow, who is 50 years old, by application of the office Memorandum dated 4.1.92 she would not be entitled to get compassionate appointment also. In my opinion, to accept the contention of the respondents-authorities in this behalf will defeat the very object of providing immediate succour to the dependants of the deceased."

4. For both the aforesaid reasons, this court is of the view that the rejection of the case of the petitioner for compassionate appointment by the DLC of Lakhimpur district in its meeting dated 24.02.2017 is not sustainable either on facts or on law".

12. Considered the respective submissions and perused

the judgments relied on by learned counsel. This Court has the

occasion to traverse through the A.P. Revised Pension Rules,

1980 to understand the context of the word 'Family' and its

implications under Rule 46(5). It is pertinent to note that

though the Rules defines 'Family' as comprising of

wife/son/daughter/unmarried brother/unmarried sister,

usually the word 'Family' is taken in the context of

claiming/extending benefits under various schemes of the

Government like medical, pensions, leave travel concessions,

etcetera.

13. The deceased employee was married during his

lifetime. It is a matter of record that there are no children to

him and his wife pre-deceased him. In that backdrop, petitioner

and other family members were declared to be legal heirs of

deceased employee, by the judgment and decree dated

27.04.2010 and the 1st respondent issued clarification vide

Memo dated 22.10.2010 stating that petitioner and other family

members come under the definition of 'Family' in terms of Rule

46(5) of the Rules. It may be noted that although petitioner is

not below 18 as per the definition of the word 'Family', it is to be

noted that age limit of 18 years for son/brother is to connote

that person has attained majority and is normally not extended

certain facilities to which a dependent is entitled to. This means

son/brother is no longer dependent on the employee.

14. However, in the instant case, petitioner is declared

to be 'Family' member vide Clarification Memo issued by 1st

respondent dated 22.10.2010. The precise point of rejection is

that petitioner crossed the age of 18 years. At this juncture, it

may be noted that the Hon'ble Supreme Court in Smt. Diploma

Baruah v. State of Assam 1 held as follows:

" That apart, which is more important looking at the policy behind the scheme of compassionate appointment, the Office

Memorandum dated 4.1.92 cannot be made applicable for compassionate appointment. The object of the compassionate appointment scheme being to provide immediate succour to the family of the deceased, if the concept of age bar applicable in the case of normal direct recruitment is imported in to the concept of compassionate appointment, it is possible in many cases that the spouse of the deceased will be over-aged when a case for making compassionate appointment arises. For example, if a deceased employee dies at the age of 55 years, leaving behind his widow, who is 50 years old, by application of the office Memorandum dated 4.1.92 she would not be entitled to get compassionate appointment also. In my opinion, to accept the contention of the respondents-authorities in this behalf will defeat the very object of providing immediate succour to the dependants of the deceased."

15. In that view of the matter, this Court is of the view

that the rationale in the judgment in Smt. Diploma Baruah (1

supra) applies to the facts of this case. Furthermore, it may be

noted that even in cases of spouse/daughter/son,

compassionate appointment is usually not a matter of right, but

a request for sympathetic consideration for a job. Therefore, the

yardstick of strict factors of recruitment such as age,

qualification, specialised training etc., cannot be applied to

appointment on compassionate grounds.

16. In that view of the matter, Writ Petition is disposed

of with a direction to respondent-TSSPDCL to settle the

retirement gratuity / benefits to petitioner, as permissible