Allowed

G.V. Pavan Kumar, v. The State of Andhra Pradesh

Andhra Pradesh HC20 Jul 2022WP/12284/2021

Case brief

AI extract

What is this about?

Writ petition filed challenging an order surrendering closely appointment services of petitioners based on a 2013 circular. Court upheld Tribunal orders, declared impugned surrender order illegal, and directed regularization with promotion and seniority benefits.

What did the court decide?

Impugned order declared illegal; respondents directed to assign notional promotion and seniority on par with next junior plus monetary benefits within 4 weeks.

G.V. Pavan Kumar, Vs The State of… — Pension and Retirement Benefits | Andhra Pradesh HC (2022)

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THE HON’BLE Dr.JUSTICE K. MANMADHA RAO

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WRIT PETITION No.12284 of 2021

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ORDER :

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This Writ Petition is filed under Article 226 of the Constitution of India, seeking the following relief:

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“…..to issue a Writ, Order or direction more particularly one in the nature of Writ of Mandamus declaring the impugned order made in Rc.No.A2/4947/2015, dated 25.05.2019 by the respondents as illegal, arbitrary and contrary to the Law. Consequently direct the respondents to assign notional promotion and seniority on par with their immediate junior together with monetary benefits and pass such other orders.”

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The brief facts of the case are that the petitioners were

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appointed as Junior Accountants on compassionate grounds under breadwinner scheme as their respective fathers were died during service. The 3^rd respondent issued appointment orders with a condition to acquire qualification of any of the Certificate Course in Computers within a period of two years from the date of their appointments. The petitioners have passed computer course in Office Automation conducted by the SBTET, A.P as stipulated in their appointment orders and also passed all departmental tests and they are eligible for promotion up to the post of ATO. Therefore the petitioners are entitled for regularization of their services and they have completed more than 7 years of unblemished service. The 3^rd respondent issued order dated 20.11.2017 without issuing any notice, surrendering the petitioners to the District Collectors, on the ground that the Government issued Circular dated 04.12.2013 clarifying that the original scheme of compassionate appointment

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formulated by General Administration Department is applicable only to the regular employees in Government Departments, but the dependents of Public Sector undertaking/ Local Bodies through they have adopted the above scheme cannot be given compassionate appointment in the Government Departments and they have to be appointed only in their respective organization as per their rules. Aggrieved by the same, the petitioners filed O.A.Nos.3223 of 2017 and 1793 of 2017 before the A.P.Administrative Tribunal, which was allowed on 27.06.2018 and set aside the impugned surrender orders and further directed to continue the petitioners in services. Pursuant to the said orders, the respondents have declared the probation and regularized the services besides granting sanctioned annual periodical increments from time to time and also sanctioned the break up period as earned leave. However, the respondents passed the present impugned orders withholding the regularization of the petitioners and other proceedings made pursuant to the orders of the A.P.Administrative Tribunal on the alleged ground of administrative reasons, though the impugned order says that “withheld temporary”, it continuous till date and it has not yet been revoked. By virtue of impugned orders, the juniors of the petitioners have been promoted to higher posts by ignoring the seniority of the petitioners, which is illegal and arbitrary. Hence this writ petition came to be filed.

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Per contra, the 2^nd respondent filed counter-affidavit by denying all material averments made in the writ affidavit and mainly contended that the petitioners have fulfilled the condition and passed Certificate Course in Computers viz., Office Automation. As such in

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normal course, their services have to be regularized from the date of acquiring the technical qualification. As per instructions of Government vice Circular Memo. No.35252/Ser.G/A1/2011-I, GA (Ser.G) Department, dated 04.12.2013 the appointing authority is not to make compassionate appoints with the legal heirs of deceased employees belongs to local bodies i.e Zilla Parishads, Municipalities, Mandal Parishads and Gram Panchayats in Government offices. As such, both the petitioners have no right to continue in the Treasuries and Accounts Department as the parents of the petitioners were died while working in local bodies. Further it is contended that the 1^st respondent have issued instructions on 02.05.2021 to the 2^nd respondent vide e-File No. FIN02-11036/16/2018-A SEC-DTA (Computer No.622128) that the petitioners are appointed in Government Departments in deviation to the orders issued in Circular Memo No.35252/Ser.G/A1-2011-1, dated 04.12.2013. The action of the competent authorities is not in accordance with the rules. If the department is considered the request of the individuals, they may be adjusted in their respective local bodies as per said Circular Memo. Accordingly the 3^rd respondent vide proceedings dated 30.06.2017 and 20.11.2017 has surrendered the services of the petitioners to the District Collector.

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Aggrieved by the said the petitioners have filed O.A.Nos. 3223 of 2017 and 1793 of 2017 before the Hon’ble A.P.Administrative Tribunal. As per its orders, the petitioners have been continued as Junior Accountants in 3^rd respondent office pending further orders from the Tribunal vide 3^rd respondent proceedings dated 12.12.2017

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and 12.07.2017. The petitioners have rejoined as Junior Accountants on 13.12.2017 and 12.07.2017 F.N respectively. In obedience to the orders of learned Tribunal in the above said O.As the 1^st respondent vide Memo dated 30.08.2018 directed to take necessary action as per the orders of the learned Tribunal and directed to instruct all his subordinate offices to follow the guidelines issued in Circular Memo No. 35252/Ser.G/ A1-2011-1, dated 04.12.2013 strictly in future and the same was communicated to 3^rd respondent.

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It is further contended that as per Memo No. 71558/Ser.A/98-1, G.A Department, dated 23.11.1998 have clarified that the scheme of compassionate appointment to the dependents of Government employees, who died in harness as well as compassionate appointment to the dependents of the Government employees, who retire on medical invalidation are applicable to Government servants only, but not to employees of Municipal Corporation and Municipalities and local bodies. The said instructions is in force before the appointment of the petitioners and also instructions i.e not to appoint children of the deceased employees of the local bodies into the Government offices is in force as on the date of appointment of the petitioners. As such, the contention of petitioners that they have appointed prior to issue of Government Circular Memo dated 04.02.2013 is not acceptable, since these instructions are in continuation of the earlier instructions issued in 1998 as stated supra. As such the legal heirs of the deceased employees belonging to local bodies cannot be given compassionate appointment in the Government Departments as per

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Circular Memo dated 04.12.2013. Hence the petitioners are not entitled to any relief as claimed in the writ petition and requested to dismiss the writ petition.

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Learned counsel for the petitioners placed on record the order of the A.P.Administrative Tribunal dated 27.06.2018 in O.A.No.1793 of 2017 with V.M.A.No.241 of 2017 and O.A.No.3223 of 2017 with V.M.A.No.42 of 2018, wherein the learned Tribunal has taken into consideration of the decision of learned Tribunal in O.A.No.1668 of 2015 and batch, dated 15.12.2015 by relying on the Judgments of the Apex Court and held that the direction of the Government in Circular Memo No.35252/Ser.G/A1/2011-1, dated 04.12.2013 restricting the compassionate appointment to be made by excluding employees of Zilla Parishad, Mandal Parishad and Gram Panchayats cannot be held to be proper and legal.

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Following the decisions stated supra, this Court inclined to allowed the Writ Petition, while declaring the impugned order in Rc.No.A2/4947/2015, dated 25.05.2019 by the respondents as illegal and arbitrary; consequently direct the respondents to assign the notional promotion and seniority to the petitioner on par with their next junior along with monetary benefits, within a period of four (04) weeks from the date of receipt of a copy of this order.

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