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Judgment
This writ petition has been filed seeking a writ of Mandamus declaring the action of the respondents in not considering the case of the 2nd petitioner for compassionate appointment consequent to death of his father, as illegal arbitrary and violative of Articles 14 and 21 of the Constitution of India and consequently to declare that the 2nd petitioner is entitled for compassionate appointment commensurate with his educational qualifications in view of the judicial pronouncements of the Hon’ble Supreme Court and Division Bench of this Court and pass such other order or orders as this Court deems fit and proper in the circumstances of the case.
Vide order dated 23.06.2017 in WPMP No.25254 of 2017, this Court had directed the 4th respondent to consider the petitioners representations dated 2.4.2016 seeking compassionate appointment within six weeks from the date of receipt of copy of the order and communicate his decision thereon to the petitioners. Thereafter, respondent No.4 disposed of the representations of the petitioners by rejecting the same. Therefore, WPMP No.31468 of 2017 seeking amendment of the prayer including the challenge to rejection order dated 13.07.2017 was filed and it is re-numbered as I.A.No.2 of 2017 and the same was allowed vide order dated 12.04.2022. Subsequent to the rejection of representation of the petitioner, respondent No.2 filed counter-affidavit and the same was taken on record.
The brief facts leading to filing of the present writ petition are that petitioner No.1 is the wife and petitioners 2 and 3 are the sons of one late M.Prabhu, who was appointed as a Driver on NMR basis on 01.03.1989 in the office of the Executive Engineer, Public Health, Hyderabad. He continuously worked as Driver till 05.07.2015, when he died while in service and the petitioners herein are his legal heirs. Though he completed 25 years of service, his services were not regularized and it is claimed that he was the only bread winner of the family. On 02.04.2016 petitioners 1 and 2 made separate representations to the respondents to consider their cases for compassionate appointment. The respondents considered the representations of the petitioners and disposed of them vide orders dated 13.07.2017 holding that late M.Prabhu was not eligible to be considered for regularization as he had not completed five years of service by 25.11.1993 under G.O.Ms.No.212, Finance & Planning (FW PC.III) Dept, dated 22.04.1994 or under G.O.Ms.No.112, Finance & Planning (FW OC.III) Dept, dated 23.07.1997 and therefore, neither of the petitioners are eligible to be appointed on compassionate grounds as per G.O.Ms.No.118, Finance & Planning (Fin Wing PC.III) Dept, dated 18.08.1999 and accordingly, their request was rejected.
Learned counsel for the petitioners, submits that though the deceased employee had not completed the service of five years as on the cut off date i.e., 25.11.1993, but by the time of his death, he had completed more than 25 years of service and therefore, as per the judgment of the Supreme Court in Secretary, State of Karnataka and others v. Umadevi and others (2006) 4 SCC 1, his services should have been regularized and the same was pending consideration only due to administrative reasons and therefore, his services should be deemed to have been regularized and the case of the petitioners should be considered for compassionate appointment in view of G.O.Ms.No.118, dated 18.08.1999. In support of his contention, he placed reliance on the judgment of the Supreme Court in Union of India vs Sant Lal & Ors dated 08.01.2019 in Civil Appeal Nos.175-176 of 2019. Learned counsel for the petitioners has drawn attention of this Court to paras 9 and 10 of the said judgment.
“The term one-time measure has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi, each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of Courts and Tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularize their services.
At the end of six months from the date of decision in Umadevi, cases of several daily-wage/ad hoc/casual employees were still pending before Courts. Consequently, several departments and instrumentalities did not commence the one-time regularization process. On the other hand, some Government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in Courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi, will not lose their right to be considered for regularization, merely because the one-time exercise was completed without considering their cases, or because the six-month period mentioned in para 53 of Umadevi has expired. The one-time exercise should consider all daily wage/ ad hoc/ casual 9 (2010) 9 SCC 247 employees who had put in 10 years of continuous service as on 10.04.2006 without availing the protection of any interim orders of Courts or Tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi, but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi, the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi, are so considered.”
Thus, according to the said judgment, since the deceased employee had completed more than 10 years of service as on 10.04.2006, his case ought to have been considered and regularized. Therefore, it is submitted that the deceased employees’ services should be deemed to have been regularized and the petitioners’ case for compassionate appointment should be considered positively.
Learned Government Pleader, on the other hand, relied upon the averments made in the counter-affidavit and submitted that as per G.O.Ms.212, dated 22.04.1994, the case of the deceased employee cannot be considered for regularization as he had not completed five years of service as on that date. By placing reliance upon G.O.Ms.No.118, dated 18.08.1999, learned counsel further submitted that since the husband of the 1st petitioner had not fulfilled the conditions laid down in G.O.Ms.No.212, the cases of the petitioners cannot be considered and G.O.Ms.No.118 cannot be applied to them. He also placed reliance on the judgment of the Madras High Court in case of M.Nallamal vs. The District Collector, Madurai District and another, dated 10.01.2018 in W.P (MD) No.1305 of 2010, in support of his contention, whereunder it was held that before the date of his death, the services of the deceased employee could not be considered as regularized, and therefore compassionate appointment cannot be extended to the legal heirs of the temporary/regular/contract labours.
Having regard to the rival contentions, and material on record, this Court is of the view that it is not in dispute that father of petitioners 2 and 3 was a daily wage/NMR employee and had not put in five years of service as on the cut off date i.e., 25.11.1993. However, vide G.O.Ms.No.118, dated 18.08.1999, the Government has examined the matter and held that since benefit of compassionate appointment is not available under the rule to those who are not regular employees, it has decided to consider the cases of the dependants of the deceased daily wage or NMR or consolidated pay person or contingent workers on full time basis or part-time employees for compassionate appointment only in the following cases, namely (1) if the deceased daily wage or NMR or consolidated pay person of contingent worker on full basis/part-time basis was fully eligible for regularization under Section 7 of the Andhra Pradesh (Regulation of appointment to public services and rationalization of staff pattern and pay structure Act, 1994 read with G.O.Ms.No.212, Fin & Plg (Fw.PC III) Dept, dt. the 22nd April, 1994 and G.O.(P) No.12, Fin & Plg.Dept, dt. 23rd July, 1997 who could not be regularized due to administrative reason, and that the cases of the dependents of only such deceased, daily wage of NMR or consolidated pay persons or contingent workers can be considered for compassionate appointment from date of issue of orders. (2) While doing so, it has to be ensured that regular vacancy is available for deemed regularization of the deceased daily wage or NMR or consolidated pay person or contingent worker and the appointment has to be considered without recourse to creation of supernumerary post and (3) the appointment of the dependent which is based on deemed regularization of deceased person shall not confer any other benefits such as arrears of salary, family pension and the other benefits to the deceased employee or his/her dependent.
Since the Government itself vide G.O.Ms.No.118, dated 18.08.1999 has directed all the departments to consider the cases of the dependents of the deceased daily wage/NMR/consolidated pay person or contingent worker on full basis/part-time basis who was fully eligible for regularization under Section 7 of the Andhra Pradesh (Regulation of appointment to public services and rationalization of staff pattern and pay structure) Act, 1994 read with G.O.Ms.No.212, dated 22.04.1994, but could not be regularized due to administrative reason, for compassionate appointment, the cases of the petitioners should be considered in accordance therewith.
In the case on hand, the deceased employee was continuously working as NMR. As per G.O.Ms.No.212 dated 22.04.1994 and in view of the judgment of the Supreme Court in case of Uma Devi (1 supra) and also latest judgment of the Supreme Court in case of Union of India vs. Sant lal & ors, the daily wages or NMR or consolidated pay persons are eligible for regularization after completion of 10 years of service. It was the duty of the respondents to list all the eligible persons for regularization and as and when regular vacancies arose, to consider their cases for regularization.
In this case, the case of the deceased employee for regularization was never considered and the reasons for his non-regularization are not known. Therefore, this Court deems it proper to direct the respondents to examine the case of the petitioners and if there is a regular vacancy and if it is found that the deceased employee was eligible for regularization in such a vacancy, then he shall be deemed to have been regularized from such date and thereafter, the respondents shall consider the cases of the petitioners herein for appointment on compassionate grounds in terms of G.O.Ms.No.118, dated 18.08.1999. The entire exercise of consideration and passing of speaking orders shall be done within a period of 120 days from the date of receipt of a copy of this order.
Accordingly, the Writ Petition is allowed. No costs.
Miscellaneous petitions, if any, pending shall stand closed.