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2022 DIGILAW 705 (AP)

Ulavapati Kalpana v. State of Andhra Pradesh

2022-08-01

K.MANMADHA RAO

body2022
JUDGMENT Dr. K. Manmadha Rao, J. - This petition is filed under Article 226 of the Constitution of India for the following relief:- '...to issue a writ order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the 3rd respondent in rejecting the claim of the petitioner for not provided compassionate appointment to the petitioner who is married daughter of deceased employee in RC No B6/60/2019 Endorsement dated 05.10.2019, as illegal, arbitrary, against the law and violation of Art 14, 16 and 21 of the Constitution of India set aside the same and consequently direct the respondents to consider the case of the petitioner for appointment under compassionate grounds as dependent of the deceased employee and pass such other order or orders.......' 2. The case of the petitioner is that the mother of the petitioner Smt. Boddu Aruna made a representation dated 01.05.2019 along with medical certificates requested the respondents for voluntary retirement from services due to suffering breast cancer and affected the lungs. Thereafter, the 3rd respondent vide letter dated 02.05.2019 directed the 5th respondent to examine the medical report and submit detailed report within 10 days. Pending consideration of voluntary retirement, the petitioner's mother died on 08.05.2019. As the petitioner name is showing as Nominee in the registers, she is only one dependant. On 09.05.2019 the respondent authorities have paid funeral expenses of Rs. 15,000/- to the petitioner through the Assistant Social Welfare Officer, Kavali. Thereafter, the petitioner made a representation to the 3rd respondent for providing compassionate appointment along with all relevant documents. It is further stated that on 05.09.2019 the 5th respondent addressed a letter to the 3rd respondent that the petitioner does not have any movable and immovable properties, she is only one daughter, she got married with unemployed person and they got two children and they are dependants on the deceased employee and also the 5th respondent recommended the petitioner to provide compassionate appointment and to grant pensionary benefits. Subsequently, the 3rd respondent rejected the petitioner's case for compassionate appointment on the ground of married daughter vide an endorsement vide Rc. No. B6/60/2019, dated 05.10.2019. Challenging the same, the present writ petition is filed. 3. Subsequently, the 3rd respondent rejected the petitioner's case for compassionate appointment on the ground of married daughter vide an endorsement vide Rc. No. B6/60/2019, dated 05.10.2019. Challenging the same, the present writ petition is filed. 3. Counter affidavit is filed by the 3rd respondent while denying all the allegations made in the petition, contended that, the spouse of the deceased employee was died prior to the death of the deceased employee and the petitioner is the only daughter of the deceased employee who was already married and living separately with her husband and two children. As per G.O. Ms. No. 612 General Administration (Services-A) Department, dated 30.10.1991 in Para 2(iii) as well as G.O. Ms. No. 350 General Administration (SER.A) Department, dated 30.07.1999 it clearly mentioned that it is the choice of the mother/spouse to select the married daughter or unmarried minor daughter for appointment under the social security scheme. The spouse of the deceased employee was died prior to the death of the deceased employee and the deceased employee having one and only daughter who married prior to the death of spouse of deceased employee and also lives separately with her husband. The marriage daughter who is living with her husband cannot be a dependant on mother. As such the petitioner is not entitled for getting a job under the compassionate appointment. Hence, prayed to dismiss the writ petition. 4. Reply affidavit is filed by the petitioner while reiterating the averments made in the petition denied all the allegations made in the counter affidavit filed by the 3rd respondent. It is further stated that in similar circumstances, this Court considered the case in WP No. 16242 of 2013 dated 20.06.2013 for compassionate appointment to the children of the deceased employee was extended to the married daughter. Further, this Court had passed orders in W.P. No. 4193 of 2017 dated 05.06.2018 and also in similar circumstances this Court allowed the WP No. 28931 of 2021 dated 20.01.2022, hence, prayed to allow the writ petition. 5. Heard learned counsel appearing for the petitioner and learned Government Pleader for Services-II appearing for the respondents. 6. Further, this Court had passed orders in W.P. No. 4193 of 2017 dated 05.06.2018 and also in similar circumstances this Court allowed the WP No. 28931 of 2021 dated 20.01.2022, hence, prayed to allow the writ petition. 5. Heard learned counsel appearing for the petitioner and learned Government Pleader for Services-II appearing for the respondents. 6. Learned counsel placed a decision of a Division Bench in Commissioner of Police and Others v. K. Padmaja 2013 (4) ALT 501 and also a recent judgment of a learned Single Judge in W.P. No. 10340 of 2014 dated 26.02.2021 and urges that the Writ Petition deserves to be allowed, in the light of the above referred judgments. 7. Per contra, the learned Assistant Government Pleader while reiterating the contentions raised in the counter affidavit submits that the case of the petitioner is not considered by the authorities as the petitioner is a married daughter, who is not dependent on her deceased father and as such the proceedings impugned in the Writ Petition cannot be found fault with. He submits that the cause of death of the petitioner's father is not mentioned in the Death Certificate produced by the petitioner and therefore she is not entitled for the benefit of the Endorsement in Rc. No. B6/60/2019, dated 05.10.2019. The learned Assistant Government Pleader also places reliance on the Memo issued by the Government dated 27.01.2000 and contends as per the clarification the said memo, once marriage is performed, a daughter is not dependent on her father/mother even if she is an unemployee or her husband is un-employee and further that a married daughter is dependent on her father/mother if she is living with her father/mother when her husband deserts or disappears for years together or dies. The learned Assistant Government Pleader also places reliance on the judgment of the Hon'ble Supreme Court in Civil Appeal Nos. 9280-9281 of 2014 in N.C. Santosh v. State of Karnataka and Others (2020) 7 SCC 617 . Accordingly, he prays for dismissal of the Writ Petition. 8. Considered arguments of both the learned counsel and perused the material on record. The only point that falls for consideration is, as to whether the petitioner is entitled for compassionate appointment and if so, the impugned orders are liable to be set aside? 9. There is no dispute that the petitioner is the daughter of the deceased Government Employee. 8. Considered arguments of both the learned counsel and perused the material on record. The only point that falls for consideration is, as to whether the petitioner is entitled for compassionate appointment and if so, the impugned orders are liable to be set aside? 9. There is no dispute that the petitioner is the daughter of the deceased Government Employee. The family member Certificate dated 10.06.2019 and No-earning Member Certificate dated 26.08.2019 issued by the concerned Tahsildar, Kavali Mandal, Nellore district, reveals the status of the petitioner as legal heir of the deceased and her financial status and that the petitioner and her mother are non-earning members, respectively. In the counter-affidavit, there is no specific denial to the petitioner's pleaded case that her husband is not gainfully employed, except doing stray works and that the petitioner was dependent on her deceased father. A reading of the counter-affidavit would disclose that the petitioner's case was rejected only on the ground that she is a married daughter and living with her husband and therefore, she is not dependent on her deceased father. 10. The Government vide G.O. Ms. No. 612, General Administration (SER-A) Department dated 30.10.1991 provided that where the deceased employee does not have any male child but leaves behind him/her, a married daughter and unmarried minor daughter, the choice of selecting one of them for appointment under the Social Security scheme shall be left to the spouse of the deceased. Thereafter, the Government vide G.O. Ms. No. 350 dated 30.07.1999, clarified that when there is only a married daughter to the deceased Government employee without older or younger brothers or sisters and the spouse of the deceased Government employee is not willing to avail the compassionate appointment, such married daughter may be considered compassionate appointment, provided she is dependent on the deceased Government employee and subject to satisfying the conditions and instructions issued on the scheme from time to time. 10. The above said Government Order dated 30.07.1999 were considered by the Hon'ble Division Bench in K. Padmaja's case referred to supra. The Hon'ble Division Bench while dealing with the Writ Petition filed by the Department against the orders passed by the erstwhile A.P.A.T., in O.A. No. 6938 of 2012, considered similar contentions advanced and dismissed the Writ Petition confirming the orders in favour of the applicant for compassionate appointment. The Hon'ble Division Bench while dealing with the Writ Petition filed by the Department against the orders passed by the erstwhile A.P.A.T., in O.A. No. 6938 of 2012, considered similar contentions advanced and dismissed the Writ Petition confirming the orders in favour of the applicant for compassionate appointment. In the said judgment, the Hon'ble Division Bench, inter alia, opined that even if the applicant is residing in a separate house, that by itself is not ground to reject the claim of the appointment. The Hon'ble Division Bench also held that merely because family pension is paid to the wife of the deceased, the same is not a ground to deprive the benefit of compassionate appointment under the scheme notified by the Government for the children of the deceased, who dies in harness. 11. In view of the above legal position, the contentions of the learned counsel for the petitioner deserves to be upheld and the submissions made by the learned Assistant Government Pleader are liable to be rejected. 12. In Ch. Damayanthi's v. APSRTC's case vide W.P. No. 10340 of 2014, a learned Single Judge of this Court had extensively dealt with the matters pertaining to compassionate appointments visa-a-vis the claims of the married daughters and allowed the Writ Petition, inter alia, holding as follows: '41. In the present case the deceased employee left behind his wife and the petitioner only. There are no brothers or sisters to the petitioner only. There are no brothers or sisters to the petitioner. The claim of the mother of the petitioner for compassionate appointment was rejected. Now after demise of her father, it is the responsibility cast upon the petitioner to take care of her old aged and widow mother, as she is the only daughter to her parents and there is nobody to take care of her mother for her remaining life. Due to this reason also, the case of the petitioner has to be considered, besides, the petitioner and her husband not having any permanent source of income for their survival. 42. If the petitioner, who has to take care of her widowed mother, is not given compassionate appointment, the whole family will be pushed to indigenous condition and to penury and the core aim and object of the compassionate appointment scheme will be defeated. 42. If the petitioner, who has to take care of her widowed mother, is not given compassionate appointment, the whole family will be pushed to indigenous condition and to penury and the core aim and object of the compassionate appointment scheme will be defeated. petitioner As such, this Court hold that the is entitled for compassionate appointment under the 'Bread Winner Scheme'. Above referred judgments, in the considered opinion of this Court, applies to the facts of the present case. 13. Insofar as the judgment relied on by the learned Assistant Government Pleader in N.C. Santosh case referred to supra, the Hon'ble Supreme Court was dealing with compassionate appointments as provided in Karnataka Civil Services Rules, 1996. The Hon'ble Supreme Court in the said judgment inter alia, opined that the norms prevailing on the date of consideration of the application should be the basis for consideration of claim for compassionate appointment. The said judgment has no application to the facts of the present case. 14. It may not be out of place here to refer to a judgment in Bhuvaneswari V. Puranik. The learned Judge while dealing with the object of compassionate appointments succinctly dealt with the legal position and allowed a Writ Petition, wherein a challenge was laid to Rule 2(1) (a) (i), Rule 2(1) (b) and Rule 3(2) (i) (c) of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996, holding inter alia as follows: 'If the marital status of a son does not make any difference in Law to his entitlement for seeking appointment on compassionate grounds, the marital status of a daughter should make no difference, as the married daughter does not seize to be a part of the family and Law cannot make an assumption that married sons alone continue to be the part of the family.' 15. In the aforementioned view of the matter, the impugned Endorsement in the Writ Petition is liable to be set aside. 16. Accordingly, the Writ Petition is allowed and the impugned Endorsement in Rc. No. B660/2019, dated 05.10.2019 of the 3rd respondent is hereby set aside. The respondents are directed to consider the case of petitioner for compassionate appointment, in any suitable post, within a period of six (6) weeks from the date of receipt of a copy of this order. No costs. As a sequel, interlocutory applications, if any pending, shall stand closed.