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2025 DIGILAW 779 (AP)

State of Andhra Pradesh v. T Srinivasa Rao

2025-06-26

NINALA JAYASURYA, TARLADA RAJASEKHAR RAO

body2025
JUDGMENT : Tarlada Rajasekhar Rao, J. The present intra Court Appeal is filed by the State aggrieved by the order in WP No. 10145 of 2012, dated 18.02.2021, in allowing the writ petition and directing the respondent authorities to consider the case of the writ petitioner for employment on the compassionate ground. 2. Initially the writ petition is filed for the following relief: “… to issue Writ, Order or Direction more particularly one in the nature of Writ of Mandamus, declaring the condition 3(b)(i) in G.O.Ms.No.378, GA(Ser-A), dated 24.08.1999, as illegal, void, unjust and violative of Articles 14 and 21 of Constitution of India and set aside the Memo No.JS(Per)/DS(E)/AS (V&R)-NT/PO- 1/718/2004, dated 03.03.2009. of the 4th respondent and consequently direct the respondents to provide employment to the petitioner on compassionate grounds and pass such other order or further orders as may be just and necessary.” 3. Succinctly the case of the writ petitioner is that his father while working as Plant Attendant in Boiler Maintenance Stage-I in the office of 4 th respondent i.e., Dr. N.T.T.P.S., Ibrahimpatnam Krishna District was awol on 26.08.2001. Police registered the incident as Crime No 297/2001 based on the report lodged by the petitioner’s mother on 26.08.2001 and submitted a final report on 31.12.2001 stating that the missing person is “undetectable’ and additionally the police also addressed a letter to the Superintending Engineer dated 01.10.2002. Subsequently, the petitioner submitted a request to the 4th respondent for employment on compassionate grounds after completing a seven year period since the date his father went missing, invoking Section 108 of the Evidence Act to assume that his father is deceased/was not alive. His representation was rejected vide order 03.03.2009 in circular Memo No: JS)Per)DS(E)AS(V&R)- NT/P-1/718/2004, observing that” the benefit of compassionate appointment shall not be applicable to the case of government servant who has less than 7 years to retire on the date from which the FIR is filed. The left over service of the missing person i.e., Late Sri T. Babu Rao Ex-PA/Dr.N.T.T.P.S., whose whereabouts are not known, is only 5 years 9 months and 20 days. Therefore his dependants are not entitled for employment under compassionate grounds and hence rejected”, which is impugned in the writ petition herein after called as Memo. 4. The left over service of the missing person i.e., Late Sri T. Babu Rao Ex-PA/Dr.N.T.T.P.S., whose whereabouts are not known, is only 5 years 9 months and 20 days. Therefore his dependants are not entitled for employment under compassionate grounds and hence rejected”, which is impugned in the writ petition herein after called as Memo. 4. The said Memo was assailed in the writ petition on the ground that the said memo is illegal, arbitrary and unconstitutional and it is contrary to the scheme of compassionate appointment, so also assailed the inhibited condition 3(b)(i) imposed in G.O.Ms. No. 378 GAD (Ser-A) Dept 24.08.1999 where it prohibits to make an application for compassionate appointment where the awol person’s service is less than 7 years to retire from the date which FIR is filed. 5. The learned Single Judge has dealt with the issue in paragraph No.7 in the writ order which is reproduced hereunder: “Learned counsel for the petitioner submits that the Memo, dated 03.03.2009 issued by the 4th respondent is illegal, arbitrary and unconstitutional. The said Memo was issued basing on the condition No.3(b)(i) in G.O.Ms.No.378, GA (Ser-A) Dept., dated 24.08.1999, which itself is illegal, void and contrary to the scheme of compassionate appointment. As and when the Government is providing employment under compassionate grounds to the spouse/ dependents of the deceased employee who die in harness without putting any condition of length of service left over, putting a condition in condition No.3(b)(i) in G.O.Ms.No.378, GA (Ser-A) Dept., dated 24.08.1999 that this benefit shall not be extended to the dependents of the Government servants, who is less than 7 years of service from the date of filing of FIR is illegal, arbitrary and against to the object of the appointment under compassionate grounds. As such, learned counsel sought to declare the condition No.3(b)(i) in G.O.Ms.No.378, GA (Ser-A) Dept., dated 24.08.1999 as illegal, arbitrary and violative of Articles 14 and 21 of the Constitution of India.” 6. As such, learned counsel sought to declare the condition No.3(b)(i) in G.O.Ms.No.378, GA (Ser-A) Dept., dated 24.08.1999 as illegal, arbitrary and violative of Articles 14 and 21 of the Constitution of India.” 6. After hearing the counsel for the petitioner and respondents, on relying on the judgment of the Hon’ble Apex Court in the case of State of Himachal Pradesh vs. Shashi Kumar reported in (2019) 3 SCC 653 , the writ petition was allowed holding that in the considered opinion of the court the condition No.3(b)(i) of the G.O.Ms.No.378, GA (Ser-A) Dept., dated 24.08.1999, in which it is provided that the missing Government servant shall have 7 years of service to retire on the date from which the FIR is filed is discriminatory, arbitrary, unjust and violative of Article 14 and 21 of the Constitution of India and is liable to be struck down; when the family members of the employee (whose whereabouts are not known) being his/her dependents, since they had no other source of livelihood, the respondents should have been much more sympathetic and practical in considering their suffering and trauma. Consequently directed the respondent authorities to consider the case of the petitioner to appoint on compassionate ground vide order dated 18.02.2021. 7. In the above quoted judgment the Hon’ble Apex Court has observed the following: “That appointment to any public post in the service of the State has to be made on the basis of the principles in accordance with Articles 14 and 16 of the Constitution of India and compassionate appointment is an exception to the general rule. The dependents of a deceased government employee are made eligible by the virtue of the policy on compassionate appointment and they must fulfill the norms laid down by the State’s policy.” 8. Felt aggrieved by the order in WP No. 10145 of 2012 dated 18.02.2021, the present intra court appeal is filed by the State on several grounds which are innocuous, mainly emphasised on two grounds that: (1) The petitioner has submitted an application for a compassionate appointment without fulfilling the required 7 year period. Until this 7 year duration has elapsed, it cannot be determined whether a person is alive or deceased if they have not been heard from in that time. Until this 7 year duration has elapsed, it cannot be determined whether a person is alive or deceased if they have not been heard from in that time. (2) The second ground is that learned Single Judge has struck down or invalidated the condition 3 (b)(i) of G.O.Ms.No.378, GA (Ser-A) Dept., dated 24.08.1999 in a formal and mechanical way and failed to provide any rationale or explanation of how it prejudices the petitioner, and without adequately demonstrating the basis for setting aside the condition, set aside the same and the said condition is substantive condition which specifies “who had less than 7 years to retire on the date from which the FIR is filed: and/or. If the condition is deviated it amounts to acting contrary to the law and it amounts to contravening the purpose of conditions of the condition of certifying of man missing. 9. On the other hand, the learned counsel for the respondent writ petitioner would take this court and pointed out to the findings of the learned Single Judge, hence prayed to dismiss the writ petition as no interference is warranted. 10. Heard learned state counsel for the appellant i.e., G.P. For Services-I and K. Rama Subba Rao for respondent Writ Petitioner. After hearing the counsels, this Court renders following exposition. 11. Consideration by the Court: 12. Whether the setting aside the condition imposed that the benefit of compassionate appointment shall not be applicable to the case of government servant who has less than 7 years to retire on the date from which the FIR is filed is valid and legal and the writ petitioner has made out a case adequately demonstrating the basis for setting aside the condition and the learned Single Judge provided any justification for striking it while striking down the clause imposed in GO Ms No. 678? 13. The Hon’ble Apex Court in State Bank of India and another vs Raj Kumar reported in (2010) 11 SCC 661 held that there is no vested right to have the matter considered under the former scheme and the governing scheme would be one which was in force when the applications came up for consideration. 14. As per the principles laid down by Hon'ble Supreme Court in case of State Bank of India & Anr. Vs. 14. As per the principles laid down by Hon'ble Supreme Court in case of State Bank of India & Anr. Vs. Somvir Singh, reported in (2007) 4 SCC 778 , the relevant observation of Hon'ble Supreme Court, governing the compassionate appointment can be reproduced here :- "... ... ... The hardship of the dependent does not entitle one to compassionate appointment dehors the scheme or the statutory provisions as the case may be. The income of the family from all sources is required to be taken into consideration according to the scheme which the High Court altogether ignored while remitting the matter for fresh consideration by the appellant Bank. It is not a case where the dependents of the deceased employee are left "without any means of livelihood" and unable to make both ends meet. The High court ought not to have disturbed the finding and the conclusion arrived at by the appellant Bank that the respondent was not living hand-to-mouth. The High Court cannot dilute the criterion of penury to one of "not very well-to-do". 15. In State of Gujarat & Ors. Vs. Arvind Kumar T. Tiwari & Anr., reported in (2012) 9 SCC 545 , Hon'ble Supreme Court has observed that compassionate appointment should be made strictly in accordance with the rules, regulations or administrative instructions governing the subject, taking into consideration the financial condition of the family of the deceased. It was further held that such employment is an exception to the constitutional provisions contained in Articles 14 and 16 of the Constitution of India. The object of compassionate appointment is only to enable the family of the deceased to overcome sudden financial crisis and not to confer any status upon it. 16. In State Bank of India & Ors. Vs. Jaspal Kaur, reported in (2007) 9 SCC 571 , it was held by Hon'ble Supreme Court that the case for compassionate appointment should be decided within the parameters of the scheme prevailing when application for compassionate appointment was filed and not as prevailing on the date of decision of the Court. It was further observed that the financial condition of the family of the employee, who died in harness, is main criterion under the scheme. Whether deceased left the family in penury and without any means of livelihood is to be decided by the competent authority. It was further observed that the financial condition of the family of the employee, who died in harness, is main criterion under the scheme. Whether deceased left the family in penury and without any means of livelihood is to be decided by the competent authority. The court should not normally interfere with the decision of the authority. A court cannot order appointment on compassionate ground, dehors the provisions of the statutory regulations and instructions. Hardship of the candidate does not entitle him to compassionate appointment dehors the statutory provisions. 17. An employer cannot be compelled to make an appointment on compassionate ground contrary to its policy [See judgment in Kendriya Vidyalaya Sangathan v. Dharmendra Sharma reported in (2007) 8 SCC 148 . 18. To claim appointment on compassionate ground the government employee shall have at least 7 years of service either before his death or awol from the service, that said condition is contemplated in clause No.3(b)(i) of the G.O.Ms.No.378, GA (Ser- A) Dept., dated 24.08.1999, in which it is provided that the missing Government servant shall have 7 years of service to retire on the date from which the FIR is filed. In the present case, the missing person has less than 6 years of service. 19. It is not the pleading of the writ petitioner that Government Order is illegal and beyond the jurisdiction of the Government and how it would infringe the fundamental right of the petitioner and there is no pleading how the clause is arbitrary, either provided any reasoning or clarify how this condition contradicts the law, or to demonstrate the arbitrariness inherent in clause 3(b)(i) of the aforementioned government order. In a catena of decisions, the Hon’ble Apex Court held that the compassionate appointment is not a fundamental right. 20. The judgment referenced by the learned Single Judge also reveals that compassionate appointments are governed by specific rules and government schemes. The learned Single Judge primarily concentrated on the general scheme of compassionate appointment and has set aside the condition in 3(b)(i) in G.O.Ms.No.378, GA (Ser-A) Dept., dated 24.08.1999 in a formal and mechanical manner. The judge failed to provide any reasoning or clarify how this condition contradicts the law, or to demonstrate the arbitrariness inherent in clause 3(b)(i) of the aforementioned government order. The judge failed to provide any reasoning or clarify how this condition contradicts the law, or to demonstrate the arbitrariness inherent in clause 3(b)(i) of the aforementioned government order. The Hon’ble Supreme Court in the above quoted judgment has clearly explained that compassionate appointment is not a vested right and the court should refrain from interfering with the authority’s decision particularly when those decisions are grounded in policy. However, the learned Single Judge disregarded the conditions enumerated in the GO, instead expressed sympathy and directed the respondents to consider the writ petitioner's case for appointment on compassionate ground. It is well established that sympathy alone is not sufficient to allow a writ petition. Under the circumstance of the case, this Court may refer to the idiom and conclude that “The learned Single Judge has missed the woods for the trees.” and delivered the impugned order on generalities. 21. The Hon’ble Apex Court in the above reference judgments had categorically held that compassionate appointment must adhere strictly to the relevant rules, regulations or administrative instructions governing the subject. Wherefore, this Court is of the opinion that it would not be justified in directing the respondents to consider the appointment of the writ petitioner on compassionate grounds at this distant point of time i.e., after twenty three years of missing of the government employee and contrary to a condition that is contemplated in clause No.3(b)(i) of the G.O.Ms.No.378, GA (Ser-A) Dept., dated 24.08.1999, that the missing Government servant shall have 7 years of service to retire on the date from which the FIR is registered, without demonstrating how the condition is arbitrary. Further the Employee of a government service cannot inherit his employment to the family members as inheritance, it cannot be considered as a succession under the Succession Acts, based on a line of succession. 22. Accordingly the Writ Appeal is allowed and the impugned order in the W.P. No. 10145 of 2012, dated 18.02.2021 is hereby set aside and the writ petition stands dismissed. However, no order as to costs. Interlocutory Applications if any pending in this Writ Appeal, shall stand closed.