Research › Search › Judgment

Andhra High Court · body

2021 DIGILAW 18 (AP)

U. A. P. Sarma v. A. P. Genco. Ltd.

2021-01-19

BATTU DEVANAND

body2021
ORDER : The present Writ Petition has been filed by the petitioner for the following relief: “….to issue any appropriate writ, order or direction particularly one in the nature of writ of mandamus declaring the action of the 2nd respondent in rejecting the petitioner's case for compassionate appointment, vide Lr.No.JS(Per)/Ds(Estt)/AS(V&R)-NT/PO-J/1002/02, Dt.04-06-2008 & Lr.No.JS(Per)/Ds(Estt)/AS(V&R)-NT/PO-J/1002/02, Dt.15-07-2008 and in not appointing the petitioner on compassionate ground on par with the other 17 candidates by considering the petitioner's representations dated 12-10-2009 & 05-07-2011, as arbitrary, illegal, without jurisdiction and violative of Articles 14, 16 & 21 of the Constitution of India and consequently set-aside the rejection letters dated 04-06-2008 & 15-07-2008 issued by the 2nd respondent and direct the respondents to appoint the petitioner on compassionate grounds on par with the other 17 candidates, who were appointed pursuant to the Memo No.JS(Per)/DS (Estt)/AS(V&R-NT)/PO-J/368/2005, Dt.01-07-2011 issued by the 1st respondent, with all consequential benefits and pass such other orders as may be just”. 2. The facts of the case as per the averments made in affidavit filed along with the writ petition are: (i) The father of the petitioner joined in the service of APSEB on 01.10.1977. While he was working as H.S. Gr.II, he went on leave with effect from 06.04.2001 due to ill-health. He made an application seeking permission to retire on medical invalidation grounds. He was referred to the Medical Board and he was declared as completely and permanently incapacitated for the service vide Memo, dated 08.08.2001 and he was relieved from duty with effect from 31.08.2001. Later, vide Memo No.DE/O&M/SLR/C1/448/2002, dated 10.04.2002 revised relieving order was issued stating that the father of the petitioner was deemed to have been relieved from his duties with effect from 06.04.2001 F.N. on medical invalidation, since he was proceeded on leave from 06.04.2001 F.N. and he has not joined duty earlier to his medical invalidation, dated 31.08.2001. The father of the petitioner expired on 26.10.2001. The pension was sanctioned with effect from 06.04.2001 and the pensionary benefits were paid by reckoning date of retirement as 06.04.2001. The father of the petitioner’s date of birth was 01.07.1948. He joined in the service of APSEB on 01.10.1977. He will attain the age of superannuation on 01.07.2006 in normal course. But he expired on 26.10.2001. (ii) Consequent to that the petitioner made a representation to the respondents for providing employment on compassionate grounds. The father of the petitioner’s date of birth was 01.07.1948. He joined in the service of APSEB on 01.10.1977. He will attain the age of superannuation on 01.07.2006 in normal course. But he expired on 26.10.2001. (ii) Consequent to that the petitioner made a representation to the respondents for providing employment on compassionate grounds. His case was rejected vide letter, dated 07.11.2003 on the ground that his father was having only 04 years 10 months balance service left over as on the date of his retirement on medical invalidation. According to the respondents, unless one has a left over service of 5 years or more, his dependents are not entitled for claiming compassionate appointment. Against the rejecting the claim of the petitioner, he filed a Writ Petition No.15047 of 2005. (iii) In the counter affidavit filed by the respondents in the Writ Petition No.15047 of 2005 at paragraph 4 it was averred that the father of the petitioner was relieved of his duties with effect from 31.08.2001 A.N. at first instance. Later, revised relieving orders were issued duly allowing him to retire with effect from 06.04.2001 F.N. as he has not joined duty earlier to his medical examination and report vide Memo, dated 10.04.2002. Before submitting pension papers, petitioner’s father expired on 26.10.2001. The pension was sanctioned with effect from 06.04.2001 and the benefits were passed on to his wife. Considering these admitted averments in the counter affidavit, this Court gave a finding that the father of the petitioner was made to retire on medical grounds with effect from 06.04.2001 and not on 31.08.2001 and if 06.04.2001 is taken into consideration, the father of the petitioner had more than five years left over service after retirement on medical grounds and rejecting the claim of the petitioner on the ground that his father had left over service of less than five years is not correct and allowed the writ petition setting aside the order of the rejection of the claim of the petitioner and consequently directed the respondents to consider the case of the petitioner for providing employment in any suitable post in the respondents organization on compassionate grounds. (iv) Later on, the petitioner submitted the copy of the order, dated 31.03.2008 in Writ Petition No.15047 of 2005 to the respondents through his representation, dated 03.06.2008. The 2nd respondent herein has passed a rejection order vide letter No.Js(Per)/DS(Estt)/AS(V&R)-NT/PO-J/1002/02, dated 04.06.2008. (iv) Later on, the petitioner submitted the copy of the order, dated 31.03.2008 in Writ Petition No.15047 of 2005 to the respondents through his representation, dated 03.06.2008. The 2nd respondent herein has passed a rejection order vide letter No.Js(Per)/DS(Estt)/AS(V&R)-NT/PO-J/1002/02, dated 04.06.2008. The said letter was communicated to the petitioner through the 3rd respondent. In the said rejection order, it is stated that the father of the petitioner has been found not having five years left over service from the date of his relieve on medical invalidation. (v) The 2nd respondent had issued another rejection letter, dated 15.07.2008 in which it was stated that the High Court of Andhra Pradesh in W.P.No.13489 of 2000 and batch by its judgment, dated 12.01.2001 held that compassionate appointment to the dependents of government employees, who retired on medical invalidation is unconstitutional and violative of Article 16 of the Constitution of India and in the light of the said judgment, Government of Andhra Pradesh issued G.O.Ms.No.202, dated 27.04.2002 and G.O.Ms.No.305, dated 17.07.2002 and the same were adopted by the respondents vide Memo, dated 29.01.2004 and as such, the petitioner case cannot be considered and rejected the case of the petitioner. Aggrieved by the non-implementation of the order, dated 31.03.2008 in W.P.No.15047 of 2005, the petitioner filed Contempt Case in C.C.No.1622 of 2011. The said Contempt Case was closed reserving the petitioner’s right to challenge the rejection letters, dated 04.06.2008 and 15.07.2008. It also appears from the averments of the affidavit that the petitioner made a detailed representations, dated 12.10.2009 and 05.07.2011 to the respondents and no action was taken by the respondents on those representations. Aggrieved by the rejection letters, dated 04.06.2008 and 15.07.2008, the present writ petition is filed. 3. It appears from the record that no counter affidavit has been filed by the respondents, though this writ petition is pertaining to the year 2012 and this Court issued Rule Nisi on 01.07.2016. 4. Heard Sri V.S.K. Rama Rao, learned counsel for the petitioner and Sri M. Vidya Sagar, learned Standing Counsel appearing for the respondents. 5. Learned counsel for the petitioner would submit that the 2nd respondent issued letters, dated 04.06.2008 and 15.07.2008 rejecting the claim of the petitioner for compassionate appointment on different grounds. 4. Heard Sri V.S.K. Rama Rao, learned counsel for the petitioner and Sri M. Vidya Sagar, learned Standing Counsel appearing for the respondents. 5. Learned counsel for the petitioner would submit that the 2nd respondent issued letters, dated 04.06.2008 and 15.07.2008 rejecting the claim of the petitioner for compassionate appointment on different grounds. One of the grounds taken by the 2nd respondent while rejecting the claim of the petitioner is that the father of the petitioner has been found not having five years left over service from the date of his relief on medical invalidation. The second ground is in the light of the judgment, dated 12.10.2001 of this Court in W.P.No.13489 of 2000 and batch in which it was held that the scheme of compassionate appointment to the dependents of government employees, who retired on medical invalidation, is unconstitutional and violative of Article 16 of the Constitution of India. 6. The learned counsel for the petitioner would submit that these two grounds which were invented by the 2nd respondent to defeat the claim of the petitioner will not stand for judicial scrutiny due to the reason that this High Court while allowing W.P.No.15047 of 2005 categorically held that the rejection of case of the petitioner on the ground that his father had left over service of less than five years is not correct and rejection of petitioner’s claim on that ground is not tenable and the impugned order therein is set aside. The finding of this High Court on this aspect has become final, as the respondents did not choose to file any appeal against the order, dated 31.03.2008 in W.P.No.15047 of 2005 and as such, once the finding of this Court has attained finality, again taking the said ground by the 2nd respondent to reject the claim of the petitioner is illegal and also it amounts to violation of the order of this Court which is punishable under the provisions of the Contempt of Court Act. 7. 7. With regard to the second ground taken by the 2nd respondent to reject the claim of the petitioner, the learned counsel for the petitioner submits that the judgment, dated 12.10.2001 in W.P.No.13489 of 2000 and batch of this Court was set aside by the Hon’ble Supreme Court by its judgment, dated 12.08.2018 in V. Sivamurthy and others vs. State of Andhra Pradesh and others, 2008 (5) ALT 17 SC and consequently the Government of Andhra Pradesh issued G.O.Ms.No.661, GAD, dated 23.10.2008 and the respondents also issued GOO No.485/JS (Per)/2008, dated 30.12.2008 reviving the compassionate appointment scheme subsequent to the judgment of the Hon’ble Supreme Court. 8. Learned counsel for the petitioner further submits that in view of the two grounds raised by the 2nd respondent to reject the claim of the petitioner for compassionate appointment is not available, the respondents ought to have considered the case of the petitioner and to issue appointment order. Learned counsel submits that the Government of Andhra Pradesh, Energy Department, vide its letter No.5629/Sep/2009, dated 02.06.2011, permitting the respondents to issue appointment orders to the 17 candidates i.e., dependents on medically invalidated employees of APZENCO during the period from 31.08.2001 to 16.05.2003 and accordingly, the 1st respondent issued orders according to the approval for appointment of the said 17 candidates vide Memo No.JS (Per)/ DS (Estt.)/ AS (V&R-NT)/PO-J/368/2005, dated 01.07.2011 and consequently the 17 candidates were appointed on compassionate grounds. Learned counsel further submits that the petitioner made a detailed representation, dated 05.07.2011 requesting the respondents to appoint him on compassionate grounds on par with those 17 candidates as he is also a similarly situated candidate, but, the respondents have not passed any orders on his representation. 9. On the other hand, the learned Standing Counsel appearing for the respondents submits that as per the orders issued in B.P.Ms.No.247, dated 17.03.1989 of the Andhra Pradesh State Electricity Board, the benefit of compassionate appointment to the dependents of employees, who retiring on medical invalidation be confined to the cases where board employees actually retiring on medical invalidation, five years before their attaining the age of superannuation, prescribed for post and services. It is contended by the learned Standing Counsel that the father of the petitioner has been find not having five years left over service from the date of his relieve on medical invalidation, the case of the petitioner for providing employment under compassionate grounds is not considered and his claim is rejected accordingly. 10. The submissions of both the learned counsel and the material available on record are carefully considered. 11. It is an admitted fact that the father of the petitioner while working in the respondents organization went on leave with effect from 06.04.2001 due to ill-health. Later, he made application to permit him to retire on medical invalidation. The Medical Board has declared the father of the petitioner has completely and permanently incapacitated for the services vide memo, dated 08.08.2001. The father of the petitioner was relieved from duty with effect from 31.08.2001. On 10.04.2002 the respondents issued revised relieving orders vide Memo, dated 10.04.2002 stating that since the incumbent was proceeded on leave from 06.04.2001 F.N. and he has not joined duty earlier to his medical invalidation dated 31.08.2001 he was deemed to have relieved from his duties with effect from 06.04.2001 F.N. on medical invalidation. In view of the same, the petitioner’s mother was paid the pensionary benefits by reckoning the date of retirement as 06.04.2001 and the pension was sanctioned with effect from 06.04.2001. 12. The petitioner’s claim for appointment on compassionate ground was rejected vide letter, dated 07.11.2003 on the ground that the father of the petitioner had left over service of less than five years. The petitioner filed W.P.No.150476 of 2005 and the same was allowed by order, dated 31.03.2008 by this Court. While allowing the said writ petition, this Court had taken into consideration the averments of the counter affidavit filed by the respondents in which it was stated that though the petitioner’s father was relieving of his duties with effect from 31.08.2001 A.N. at first instance, later, revised relieved order was issued duly allowing him to retire with effect from 06.04.2001. This Court also noted that before submitting pension papers, petitioner’s father expired on 26.10.2001 and the pension was sanctioned with effect from 06.04.2001 and the benefits were passed on to his wife. This Court also noted that before submitting pension papers, petitioner’s father expired on 26.10.2001 and the pension was sanctioned with effect from 06.04.2001 and the benefits were passed on to his wife. Considering all these aspects, this Court while allowing the writ petition held that the rejection of case of the petitioner on the ground that his father had left over service of less than five years is not correct, therefore, rejection of petitioner’s claim on that ground is not tenable and the impugned order is liable to be set aside and accordingly, the impugned order is set aside and the respondents are directed to consider the case of the petitioner for providing employment in any suitable post in the respondents organization on compassionate grounds. The orders of this Court and its findings have become final, as no appeal is filed against this order by the respondents. 13. In view of the fact that in the order, dated 31.03.2008 in W.P.No.15047 of 2005, this Court held that the stand of the respondents that the father of the petitioner had left over service of less than five years is not correct and not tenable and the impugned order in which the grounds are raised by the respondents is set aside, the action of the respondents in raising the same grounds to reject the claim of the petitioner in the impugned proceedings is illegal and contrary to the orders passed by this Court in W.P.No.15047 of 2005. As and when the respondents issued Memo No.DE/SLR/C1/448, dated 10.04.2002 and sanctioned the pension basing on the said memo, taking contrary stand to their earlier actions/decisions is not permissible under law. 14. Admittedly, the second ground raised by the 2nd respondent in his letters impugned in the present writ petition to reject the claim of the petitioner that it was held by this Court that appointments under compassionate grounds on the ground of medical invalidation is unconstitutional is also not available to the respondents now. The said judgment of this Court was set aside by the Hon’ble Supreme Court in V. Siva Murthy’s case (1 supra) and consequently the Government of Andhra Pradesh and the respondents organization also revived scheme of compassionate appointment. The said judgment of this Court was set aside by the Hon’ble Supreme Court in V. Siva Murthy’s case (1 supra) and consequently the Government of Andhra Pradesh and the respondents organization also revived scheme of compassionate appointment. Moreover, attitude of 2nd the respondent in issuing impugned letters, dated 04.06.2008 and 15.07.2008 rejecting the claim of the petitioner in a routine manner and without considering the order of this Court, dated 31.03.2008 in W.P.No.15047 of 2005 with true spirit is depreciated. 15. Though the father of the petitioner expired on 26.10.2001, since the bread earner of the family unfortunately met with premature death resulting into untold financial sufferings for the entire family, the representation of the petitioner went unheeded by unfound reasons and the petitioner has to move the courts continuously for the legally entitled relief. 16. In this regard, it is worthwhile to refer the case of the Balbir Kaur vs. Steel Authority of India Limited, 2000 (6) SCC=Manu/SC/0400/2000 wherein their Lordships (U.C. Benarjee, J. speaking for the Bench) of the Hon’ble Supreme Court have held as under: “In the case of appointment considering the social and economic justice as enshrined in the constitution, denials of deserving cases are liable to be set aside. Further, the purpose of providing compassionate ground to a son or daughter or a near relative of the deceased government servant is to render assistance to the family, which is found in indigenous circumstances. Hence, in considering the case for compassionate appointment, the authorities are supposed to adopt a human outlook.” 17. For the aforementioned reasons, this Court is of the opinion that the rejection of the claim of the petitioner for providing employment under compassionate grounds vide Lr.No.JS (Per)/Ds (Estt)/AS (V&R)-NT/PO-J/1002/02, Dt.04-06-2008 & Lr.No.JS (Per)/Ds (Estt)/AS(V&R)-NT/PO-J/1002/02, Dt.15-07-2008 are illegal, unjust and violative of Articles 14, 16 and 21 of the Constitution of India and accordingly, we hold that the impugned proceedings are not sustainable in the eye of law and liable to be set aside. 18. In the result, the writ petition is allowed and the impugned proceedings vide Lr.No.JS (Per)/Ds (Estt)/AS (V&R)-NT/PO-J/1002/02, Dt.04-06-2008 & Lr.No.JS (Per)/Ds (Estt)/AS(V&R)-NT/PO-J/1002/02, Dt.15-07-2008 are hereby set aside and the respondents are directed to issue compassionate appointment to the petitioner as per his qualifications in any suitable post, within a period of six (06) weeks from the date of receipt of a copy of this order. There is no order as to costs. As a sequel, miscellaneous applications pending, if any, shall stand closed.