Radhika vs Engineer In Chief RB Administration NH,

This writ petition has been filed seeking a writ of Mandamus directing respondent Nos.1 to 3 to appoint the petitioner on compassionate grounds in any suitable post such as Sweeper/Attender due to the death of her husband, late A.Jangaiah, Gangmen NMR, who died on 13.05.2011 and pass such other order or orders as this Court deem fit and proper.

The brief facts leading to filing of the present writ petition are that the petitioner’s husband viz., A.Jangaiah had joined the office of the 3rd respondent as NMR Gangmen. While so, the 3rd respondent retrenched him from service on 05.12.2007. Aggrieved by the said retrenchment orders, he approached Labour Court-III, Hyderabad, and the said Court passed Award in I.D.No.87 of 2007 and the same was published on 19-11-2008. The Labour Court directed the respondents to reinstate the husband of the petitioner as NMR Gangmen with continuity of service. The respondents approached this Court questioning the Award passed by the Labour Court by filing W.P.No.23577 of 2009 and this Court directed the respondents to comply with the mandatory requirement under Section 17-B of the Industrial Disputes Act, 1947. The said orders were complied with by the respondents. Meanwhile, on 13.05.2011 he died due to heart attack. Thereafter, the petitioner approached the respondents seeking compassionate appointment on the ground that in view of the untimely death of her husband, herself, her mother-in-law, and her young son aged 2 ½ years, have become helpless and it is difficult for them to survive without any employment. It is stated by the writ petitioner that the respondents have provided her the work as a Sweeper-cum-attender in the office of the 3rd respondent orally, and since the petitioner made representations for regularization of the services, she was again orally prevented from discharging the duties and that she is jobless since then.

It is submitted that services of Gangmen/NMR, who are juniors to the petitioner’s husband in the other districts, have been regularized and therefore, the petitioner’s husband’s services also ought to have been regularised and consequently, the petitioner is eligible to be considered for compassionate appointment. It is submitted that the petitioner belongs to SC community and she studied upto 6th class. Due to the delay caused in providing compassionate appointment, she is unable to meet the day-to-day expenses of herself, her young son and her old aged mother-in-law. Since the respondents did not take any action on the representations of the petitioner, she filed the present writ petition seeking compassionate appointment in any suitable post including that of a sweeper/attender.

W.P.No.23577 of 2009 which was filed by the respondents against the order in I.D.No.87 of 2007 of the Labour Court directing reinstatement of the petitioner into service was dismissed for default. According to the learned counsel for the petitioner, the said order has become final and therefore, the petitioner’s husband is deemed to be in service and since services of his juniors were regularized, the deceased NMR Gangmen was also deemed to be regularized and the petitioner’s case for compassionate appointment should be considered.

Learned Government Pleader for Roads and Buildings, on the other hand, submits that the petitioners in W.P.No.23577 of 2009, have already filed an application for recall of the order along with a delay condonation petition and that they are pending consideration before this Court. Learned GP relied on the averments made in the counter affidavit, wherein, they have stated that the minimum qualification required for appointment in last grade post as per Annexure-I of Last Grade Service Rules, 1992 is 7th class and since the petitioner studied only upto 6th class, she is not eligible to be considered to any post. Further, it is submitted that the vacancies of Gangman are not being filled up as the department has banned the recruitment of work charged establishment and therefore, whenever there is requirement for patchwork on roads, the respondents call for the tenders from the licensed contractors for laying as well as patch work of road and that there is no longer any process of recruiting the NMRs/casual labour or any other daily wage posts. It is also stated that the respondents do not have any authorization to make employment by providing any work in the department and that the subject matter of appointments and recruitments is at the Government level and it is a policy decision to be taken by the Government.

Having considered the rival submissions, it is noticed that the petitioner’s husband had put in nearly 20 years of service i.e., from 1987 to 2007 before his retrenchment. Thereafter, he was reinstated into service by the Labour Court and was also paid 17-B wages. The Award of the Labour Court was challenged by the respondents but since the said WP has been dismissed for default, the said Award also became final as on date, since the order of this Court dismissing the appeal of the respondents for default has not yet been set aside. Since the petitioner’s husband had put in 20 years of service and the respondents had not regularized his services till the date of his death apparently for administrative reasons, the petitioner cannot be found fault with and cannot be made to suffer for the inaction of the respondents. As seen from the documents filed with the writ petition, the services of the NMRs, who were employed along with the petitioner’s husband, were regularized in August, 2011 i.e., the year in which the petitioner’s husband died i.e., on 13.05.2011. Therefore, had he been alive, his services also would have been regularized and therefore, the petitioner would be eligible for consideration for compassionate appointment.

As seen from page No.17 which is a letter from the 3rd respondent to the 2nd respondent dated 17.07.2012, the application of the petitioner for compassionate appointment has been forwarded. Therefore, the application of the writ petitioner was within the time and was under consideration of the Department. However, they have rejected the same solely on the ground that she has no educational qualification and 7th class is the minimum qualification required to appoint in Last Grade post as per Last Grade Service Rules, 1992.

Learned counsel for the petitioner submitted that in many cases, the respondents have allowed the employees to obtain minimum qualification after joining the services. He further submitted that same exemption may be given to the petitioner. He prays for a post like Sweeper/Attender for which the requirement of educational qualification of 7th class can be exempted.

Further, it is noticed that the case of the petitioner for compassionate appointment was also not considered on the ground that her husband was a temporary employee. However, if the petitioner’s husband had been alive, he would have been regularized along with his colleagues. Threfore, it is to be deemed that the petitioner’s husband has also been regularized on the date on which his colleagues have been regularised and therefore, the petitioner’s case for compassionate appointment can be considered.

As the petitioner’s educational qualification is 6th class, and she is seeking appointment to the post of Sweeper/Attender, this Court is inclined to direct the respondents to consider her case provided there is a vacancy.

Accordingly, the Writ Petition is disposed of directing the respondents to consider the case of the petitioner for compassionate appointment in any post of Sweeper/Attender, whichever is vacant, and communicate the same to the petitioner, within a period of 120 days from the date of receipt of a copy of this order. No costs.

Miscellaneous petitions, if any, pending shall stand closed.