K. Vipin Johnston v. 1. The State of Telangana

Petition Under Atticle 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an appropriate writ, order or direction more particularly one in the nature of Writ of Mandamus declaring that the petitioner is entitled for appointment on compassionate grounds in any suitable post with all consequential benefits to which he is legally entitled consequent to the demise of his father who died in harness duly setting aside the impugned Circular Memo No. 3548/Ser.G 1A212010-8, dated 24-3-2012 i:;sued by the 2nd respondent and the related rejection order issued by the 5th res;pondent vide Rc.No. 81110712016 dated 30-1 1-2016 as being arbitrary, illegal, contrary to the provisions of G-O.Ms.No. 612, dated 30-10-1 991 violation of Articles 14 and 1 6 of the Constitution of India and opposed to the principles of equity, fair play. / l.A,NO:1 OF 2017(' UPMP. NO: 24641 OF 20171 Petition Unc -'r Section 151 CPC praying .that in the crrcumstances stated in the affidavit filer in support of the petition, the High Court nray be pleased to direct the respon tents to forthwith consider the case c' the petitioner for apporntnrent on cr npassionate grounds duly:;uspend ng th(! impLrgned Circular Memo No.3548/{ er.GlA2/2010-8, dated 24-3-2012 iss reC by lhe 2nd respondent. Counsel for the Pr titioner : SRI.D.LINGA RAO Counsel forthe R spondents : GP FOR SERVICES -l The Court made tl e following ORDER 1 WP No 20113of20!7 HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO WRIT PETITION NO.20I 13 of 2017 ORDER: This Writ Petition is filed to issue an appropriate Writ, order or direction more particularly one in the nature of Writ of Mandamus declaring that the petitioner is entitled for appointment on compassionate grounds in any suitable post with all consequential benefits to which he is legally entitled consequent to the demise of his father who died in hamess, duly setting aside the impugned Circular Memo No.3548lSer.GlA2l2010-8, dt. 24.03.2012 issued by the 2nd respondent and the related rejection order issued by the 5th respondent vide Rc.No.B 1 ll0712016 dt.

30.1 1.2016 as illegal to the provisions of G.O.Ms.No.612, dt.30.10.1991.

2. Heard Sri Linga Rao, leamed counsel for the petitioner and the learned I Covemment Pleader for Services-l appearing for the respondents.

3. Learned counsel for the petitioner submits that petitioner is the son of late K.P. Elijah who died in hamess on 24.07.2016 while working as Deputy Commercial Tax Olfrcer leaving behind his mother, sister and himself. His mother retired as Hostel Welfare Officer and receiving service pension and except the pension of his mother, their family has no other source of income. The petitioner submitted a detailed representation to the authorities for providing compassionate appointment duly enclosing copies of Death Certificate, Farnily Member 2 Certificate, No Ob ection Certificates lrom family membets, No Eaming Mcrriber Certificate and his educational qualifications possessec! by him. Subsequently, 5'h respondent vide R :.No.B1ll0712016 dt.30.l1.2016 has inlbrmed that dependents of a Government ,nrployee rvho died while in service, ceinnot be considered lor appointment unde the scheme of compassionate appointnlent when the other parent, who had rt tired from Govemtnent Service is in rer:eipt of service pension in terms of Goverr nent Circular Memo No.3548/Ser.C/A2'2010-8, dt.24.03.2012. Aggrieved by the r rme, the present Writ Petition is filed.

4. Leamed cor nsel for the petitioner further submits tlat wtrile dealing with a sirnilar issue, this lourt in W.P.No. 16242 of 2013 dt. 20.0 5.201 3 held that merely because lamily pe rsion is being paid to the wife of the der:easerl, the same cannot be a ground to < eprive the benefits of compassionate appointment under the scheme notified b ' the Govemment for the children of th: deceased who dies in hamess.

5. Learned Go rerrment Pleader hled counter which reveals that the petitioner made a representar on on 04.10.2016, to which, on 28.10.2(rl6 an endorsement was communicated to the petitioner to file certain documents including pensionary details of wile of deceased i.e. mother of petitioner and rhe petitioner submitted representation dt.2 1. I 0.20 l6 along with the required docur ents. After examination of the matter wil r reference to the documents filed by the petitioner, the 5'h ,/ 3 respondent concluded that the mother of the petitioner is a retired State Govemment employee and a pensioner and he also submits that as per the Govemment Circular Memo No.3548/Ser.GlA2l20l0-8, dt.24.03.2012 the Govemment clarified that a pensioner can be treated as an earning person and their dependents cannot be considered for appointment under the scheme of compassionate appointment in the event of death of the spouse of the pensioner and the same was informed to the petitioner in view of the above Circular Memo, through the office endorsement dt.30.I 1.2016 giving one more opportunity to the petitioner to substantiate his claim within 15 days, to which, the petitioner requested the 5th respondent on 04.01.2017 to grant another 15 days so as to substantiate his plea. On 19.01 .2017, the petitioner submitted his representation relying upon a copy of F.No. 1401410212012 ESST(D) Govemment of India, Ministry of Personnel, Public Grievances and Pensions, dt.16.01.2013 and the relevant portion of the instructions as under: " ll(a) In deserving cases even where there is already an earning member tn the family dependent family member may be considered for compassionate appointment with prior approval of the Secretary of the Department/Ministry concerned who before approving suclt appointment will satisfi himself to the grant of compassionate appointment is justified having regard to the number of dependents, assets and liabilities left by the Government seflanL income of the earning member, as also his liabilities including the fact that the \ 4 earning men ber is residing with the family of lht' Goternme tt sen)ant and whether he should not be a source of support to olltr nrember of the fantily.

5.1 It is lurther :ontended that the issue of employment s a Srate subject and the guidelines i instru :tions to the Depaftments issued b1' the rloverrrment of India are not binding over ( n the State Govemment, as such, the case: of the petitioner does not fall within th purview as stated supra. Accordingll,. prayed to dismiss the Writ Petition.

6. Learned co rnsel for the petitioner while opposing t re submissions made by the Govemment 'leader, had contended that this (lourt rn sinrilar circumstances passed an order ir Sr.P. No.27465 ol 201 7 observing that a Division Bench of this Court while deal ng with the similar issue arising out oi A.P. Administrative Tribunal has hcld rs follows: " Yet tnother defence is taken by the learned couns,zl that as the . ,{b of the deceased is getting .fantib pen.tion, the appli :ant is not entitled for compassionate appointment. But, he same cannot be accepted. Merely becau,te family pens )n is being paid to the wife of the dece,xed, the same is ru | a ground to deprive the beneJit oJ' :ompossionate appa ntment under this scheme notified by tl:e Government for ti e children of the deceased who die in ha"ness. " 5 wPNo-2011Jof2017 ln view of the above, the impugned order is set aside and the respondents' duthorities are directed to consider the application of the petitioner. He also submits another order in WP.No.955l of 2021, and while passing the order this Court observed at para No.5 as under: " lssue involved in this Writ Petition is no more res integra. It was held in several decisions of this Court that family pension cannot be lreated as an income. ln W.P.No. 16242 of 20 1 3 dt.20.06.20 I 3 it was held as under: "...Merely because family pension is being paid to the wife of the deceased, the same is not a ground to deprive the benefit of compassionate appointment under this scheme notified by the Government for the children of the deceased who die in harness. " In W.A.No.700 of 2018 dt.29.11.2018 (while dealing with a situation wherein compassionate appointment claimants' father I was drawing service pension), it was held as under: "ln State of U.P. Vs. Brahm Datt Sharma {(1987) 2 SCC 179), the Supreme Court made it clear that pension is not a bounty but a right earned by the Government servant on the basis of the length of service rendered by him. The same principle was reiterated in D.D. Tewari (dead) through LRs Vs. [Jttar Haryana Bijli Vitran Nigam Ltd., {(2014) 8 SCC 8e4)) 6 In t,iet of the obove, Court is of the opinton that the impugt zd order is lioble to be set aside.

8. Leanred Cou rsel for the petitioner submits that in vie,rv of the above orders passed by this Cou,, the petitiorrer's case also stands on sirrilar lboting and prays to allo*, the Writ Pr tition

9. Heard. Perur ed the record.

10. In view of I re rival contentions made by the partii s. this Court is of the considered view tl at, no doubt the Govemment have intr,;duced / implementing the schenre ofcom rassionate appointnient so as to gire irnnrediate assistance to the dependents of Go rernment employee who dies while ir serr ice. But, in the present case the pe itioner's mother is a retired Governmen servrrnt and is drawing pension. In the sa J circumstances, the family will not irei tny p:oblem to get over the livelihood. I ir; mentioned in lhe counter afrldavir ihat the claim of the petitioner u'as reje :ted by the 5'r' respondent through .1n crr!:,()r'sertent d1.04.03.2017 and basing on it, I ris Court came to know that the Final (- rrier ..'vas issued and the same is neither rt:ntioned nor the same is challengcd bi, the petitioner. But, he only challenged t re endorsenlent dt.30. I 1.2006 wherern 'he operative portion of the endorsement i as follows: ----7 7 ".. In view of the above, the individual is lo submit any further inforntation to substantiate his claim within I 5 days from the date of receipt of this endorsement. " The above operative portion reflects only giving chance to the petitioner for further information and is not a final order. On this ground itself, this Writ Petition is not a fit case to be considered and the relief sought by the petitioner cannot be granted.

10. The Hon'ble Supreme Court in Union of India & others Vs, Amritha Sinhar with regard to compassionate appointments observed as under: ".. Compassionate appointment is not a matter of right, but is to enable the family to tide over the immediate crisis which may result from the death of the employee. "

11. In view of the above observation of the Hon'ble Apex Court, in the present case, the question of immediate crisis does not arise as the petitioner's mother is drawing pension from the State Government. On this ground also, it is not a fit case to consider the claim ofthe petitioner.

12. In view of the above foregoing discussions, this Writ Petition is liable to be dismissed.

13. Accordingly, the Writ Petition is dismissed. No order as to costs. I 2O2t SCC ontine SC I2ll \-.==......--- 8 As a scquel t rel'eto. ntiscellaneous applications if any. pendin-o in this w,rit petition, shall stand Iismissed. ,TRUE COPY// SD/.K.AMMAJI ASSII;TAN'T REGISTBAR l. S :C-l.lON ,f,FFICER To

1. Two CCs to 3P FOR SERVICES-I, High Court for the State of 'felangana Hyderabad. OUTI

2. One CC to I RI.D.LINGA RAO, Advocate [OPUC] 3. Two CD Co ies 4. One spare r rpy S.A. LS A 1 I I I I I i I I ! I I HIGH COUF T DATED:191' 1,t2022 ORDER WP.No.201 3 ot 2017 I DISMISSIN 3 THE W.P WITHOUT I)OSTS. @(4d -<. 1J> .4 ,,,..(' .(' 1' :) c) ,J II 'lSC €I o I)E!l ?trIz t \: n \ ^TC