K. Rajeswari vs Government of A.P. and Others

S.B. Sinha, CJ

This writ petition is directed against an order dated 6-11-1996 passed by the A.P. Administrative Tribunal in OS No.3151 of 1998 whereby and whereunder the Original Application filed by the petitioner was dismissed. In the said Original Application, the relief claimed by the petitioner was as follows:

"to declare the impugned order of the 3rd respondent dated 11-3-1998 vide proceedings No.A7/1417/1998, including the circular of the 2nd respondent bearing No. A4/3579/1996, dated 21-1-1997 as illegal, arbitrary and violative of Articles 14, 16 and 31 of the Constitution of India as well as Rules 12 and 67 of APVAOs Service Rules, 1990 and consequently direct the respondents herein to appoint the applicant as Village Administrative Officer of Korripadu Village, Monopad Mandal, Malhabubnagar district on compassionate grounds forthwith".

The question which arises for consideration is as to whether the petitioner could be appointed as Village Administrative Officer on compassionate grounds?

It is not in dispute that the petitioner''s husband while working as Village Administrative Officer (VAO) died on 8-1-1997. She made an application for compassionate appointment within one year. However, the said application was rejected stating that the petitioner has crossed the age of (46) years and as such she is not eligible for appointment as VAO as per Rule 8(2)(iii) of A.P. Village Administrative Officers Service Rules, 1990 (for ''the Rules''). It is also stated that there is no provision to relax any condition for appointment as VAO on compassionate grounds as clarified by the Commissioner, Land Revenue, A.P., Hyderabad in Circular instructions No.A4/3579/1996 dated 21-1-1997.

The contention of the petitioner is that having regard to the provisions of Rule 67 of the rules, the age bar cannot be a ground in refusing appointment to the petitioner in view of the fact that Rule 8 (2)(iii) which prescribes such age-limit is not applicable in case of compassionate appointments. It was submitted that, in any event, there is at least one instance where the age bar was relaxed.

Before considering the matter on merits, we may note a disturbing feature. The petitioner''s two sons are majors are also qualified to be appointed in the said post. They, despite holding requisite qualification did not apply for compassionate appointment. The learned Tribunal having regard to the said factual aspect held:

"Further, it is also established fact that as per the enquiry made by the respondents, the deceased has left two major sons. The applicant has not furnished any material or information about her two sons regarding their employment. In such circumstances, there is every reason to conclude that both her major sons are employed and hence they have not made application to appoint them on compassionate grounds. Further, the very compassionate appointment is intended to provide minimum economic succor to the needy family of the deceased."

The petitioner in the affidavit filed in support of the writ petition should have categorically stated with regard to the avocation of her major sons or as to whether they are employed or not. In paragraph 4 of the affidavit, it is merely stated that they are not Government employees. To our query, the learned Counsel appearing for the petitioner state that the petitioner''s sons are working with some private organisations.

It is not in dispute that the conditions relating to the appointment to the category of VAOS are governed by the A.P. Administrative Officers'' Service Rules, 1990. The relevant provisions whereof are quoted thus:

"8. Qualifications for appointment of Village Administrative Officers :--(1) In case of erstwhile Village Officers, a person shall be eligible for the post of Village Administrative Officer, if,--

(i) he has passed the 7th class or its equivalent examination;

Provided that the Ex-Village Officer who has put in less than ten years of service as on the 6th January, 1984 shall be required to pass the test as prescribed either for category-I or Category-II of class-I Village officers under the Andhra Pradesh (Andhra Area) Village Officers Service Rules, 1969 or the Andhra Pradesh (Telangana Area) Village Officers Service Rules, 1978 within a period of one year from the date of his appointment, failing which his services shall be terminated without assigning any reason and without notice:

(ii) he has not crossed the age of 58 years;

The Spouse/dependent children of a Village Administrative Officer, who dies in harness before attaining the age of 62 years, shall be appointed as Village Administrative Officers, provided that there is no other earning member in the family of such deceased Village Administrative Officer and an application is made in this regard within a period of one year from the date of the death of such Village Administrative Officer and also she/he is educationally qualified.

Provisions of others rules not applicable: The provisions of General Rules for the State and Subordinate Services or any other rules except Andhra Pradesh Revenue Malversation Regulation, 1822 shall not apply to the Village Administrative Officers unless ordered specifically by the Government from time to time."

Having regard to the provisions of Rule 67 aforementioned, it must be held that the said Rules are self-contained ones. The purpose and object of a benevolent scheme like grant of appointment on compassionate grounds is well-known. The said scheme was evolved having regard to the economic distress which may be faced by the family of the deceased and such economic distress must satisfy the test of immediacy and also must arise on account of the death of the sole bread winner, In Balbir Kaur and Another Vs. Steel Authority of India Ltd. and Others, , relied on by the learned Counsel for the petitioner, the Apex Court was concerned with the question as to whether a scheme framed for payment of gratuity on superannuation itself would be a ground for denial of appointment on compassionate grounds. The answer to the said question was rendered in the negative. But, as is well known, ratio of a decision has to be culled out from the facts involved therein and from what it decides and not what can logically be deduced therefrom. In Commissioner of Income Tax Vs. M/s. Sun Engineering Works (P.) Ltd., , Dr. A.S. Anand, J., (as the learned Chief Justice then was) stated the law in the following terms:

".....It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be the complete ''law'' declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court....."

In Jaya Sen v. Sujit Kr. Sarker ILR 2000 (1) A& 145, it was held:

"It is now well known that a decision is an authority for what it decides and not what can logically be deduced therefrom. It is also well known that even a slight distinction in fact or an additional fact may make a lot of difference in decision making process. See Quinn v. Lealhain [(1900) AER 1], Krishena Kumar and Others Vs. Union of India and others, , Commissioner of Income Tax Vs. M/s. Sun Engineering Works (P.) Ltd., , The Regional Manager and Another Vs. Pawan Kumar Dubey, and Municipal Corporation of Delhi v. Gurnam Kaur [1988 (1) SCC 101].

It is also a settled law that a decision is not an authority on a point which was not argued. See Mittal Engineering Works (P) Ltd. Vs. Collector of Central Excise, Meerut, ."

The law in this regard is well settled. The High Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot direct grant of appointment on compassionate grounds contrary to or inconsistent with the scheme laid down therefor. See Regional Manager, APSRTC v. Sampoornamma 1999 SCC 1162 and in B. Nagamma Vs. Andhra Pradesh Road Transport Corporation and others, . Even no supernumerary posts can be created for the said purpose and an appointment on compassionate ground can be made only when clear vacancies exist. See APSRTC v. Dannina Rajeswari 1999 SCC 1182, Orissa Seb v. Rajkumari Panda 1999 Lab 1C 729. In Samsunnesa v. State of WB 1995 Lab. IC 2580, the purpose for grant of such appointment has been laid down in the following terms:

"It is also well settled that if a son is employed, the Court in exercise of its jurisdiction under Article, 226 shall not direct grant of appointment on compassionate ground to other family members of the deceased."

See Sushella B. Bhakta v. Karnataka SRT Corporation (1995 Lab.IC 2398) and West Bengal State Electricity Board and Others Vs. Samir K. Sarkar, .

Appointment on compassionate grounds is considered to be an exception to clause (2) of Article 16 of the Constitution of India. Rule 12 of the Rules had been made with a view to give effect to the aforementioned scheme. The petitioner, as per the scheme, was bound to show that there was no other earning member in the family of the deceased. The petitioner in her application, as noticed hereinbefore, has adopted an evasive method by stating that her sons are not Government employees. Rule 12 does not say that a dependent of deceased VAO shall be entitled to appointment ipso facto despite there are other earning members in the family. She, in terms of Rule 12, was further bound to show that she has the requisite qualifications.

Apart from the educational qualifications, a person to be appointed on compassionate grounds must be fit to discharge his or her duties. The age-limit has been prescribed with a view to achieve the said purpose. This Court exercising the extraordinary jurisdiction under Article 226 of the Constitution of India, cannot enter into the arena of considering the Legislative wisdom. Rule 8(2) cannot be said to be wholly unsustainable in the matter of appointment on compassionate grounds. Had it been so, in other statutory rules the provisions relating to relaxation of age-limit would not have been there. It is not in dispute that there is no provision for relaxation of age in the rules and, in that view of the matter, we are of the opinion that the learned Tribunal is right in recording a finding that the age-limit prescribed under Rule 8(2) which is applicable to the direct recruitment would also be applicable in the case of compassionate appointment. In service jurisprudence, there are only three methods of recruitment viz., (1) by direct recruitment, (2) recruitment by transfer and (3) by promotion. The object of making a provision in the statute or the statutory rules in regard to appointment on compassionate grounds is to provide for certain relaxation as regards the mode and the manner of recruitment, but thereby the essential criterions required therefore are not necessarily excluded.

For the reasons aforementioned, we do not find any merit in the writ petition and it is accordingly dismissed. There shall be no order as to costs.