Allowed

G. Pavan Kumar v. The Apsrtc, rep. by its Managing Director

Telangana HC9 Jun 2014WP/15627/2014

Case brief

AI extract

What is this about?

This court disposed of a writ petition seeking compassionate appointment for the son of a deceased employee. The petition was rejected by the corporation due to time-barred delay. The court distinguished a Supreme Court precedent on delay, noting the unique factual divergence regarding a ban on appointments, and directed the corporation to consider the application from the date of the policy's rev

What did the court decide?

The respondent Corporation is directed to consider the petitioner's case for compassionate appointment without reference to the issue of delay and pass appropriate orders within eight weeks.

G. Pavan Kumar Vs The Apsrtc, rep. by its… — Pension and Retirement Benefits | Telangana HC (2014)

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HON’BLE SRI JUSTICE DAMA SESHADRI NAIDU

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WRIT PETITION No.15627 of 2014

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ORAL ORDER:

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Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondent Corporation.

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Since the issue involved in the present writ petition lies in a narrow compass, the writ petition is disposed of at the admission stage itself.

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Shorn of extraneous particulars, the issue in brief is that the petitioner’s father, who was working as a Driver in the respondent Corporation, died in harness on 29.09.2007, leaving behind the petitioner and other members of the family as his dependants. The contention of the petitioner is that though the petitioner’s mother, being the wife of the deceased employee, submitted an application on 21.02.2009 along with claim form to provide employment to her son, the respondent authorities have not acted on the said representation. Once again, the petitioner is said to have reiterated his request by submitting another application on 08.03.2013. Essentially, the learned counsel for the petitioner has submitted that after repeated applications from the petitioner or from his mother, the respondent authorities eventually passed orders on 21.04.2014 rejecting their claim for compassionate appointment on the ground that the petitioner or any other member of the family of the deceased employee did not make any representation within time i.e., 5 years, in terms of the policy of the respondent Corporation.

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Assailing the said rejection, the learned counsel for the petitioner has stated that there was no delay on the part of the petitioner and the authorities ought to have considered his application positively. The learned counsel for the petitioner has stressed the fact that the petitioner or any other member of the family did not claim any monetary benefit on the death of the deceased employee in lieu of employment.

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Per contra, the learned Standing Counsel has strenuously opposed the

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claims and contentions of the petitioner. To began with, the learned Standing Counsel has contested the veracity of the statement made by the petitioner that his mother made an application on 21.02.2009 along with a Claim Form. The learned counsel, stoutly defending the Order impugned, has further stated that in terms of the policy of the respondent Corporation, any of the dependent members of the deceased employee shall make any application for compassion appointment within 5 years from the date of death of the employee. In this regard, it is the singular contention of the learned Standing Counsel that the application was made only on 08.03.2013 and it was hopelessly barred by limitation, without deserving any indulgence on the part of this Court. In this regard, the learned counsel has placed reliance on a Judgment of the Hon’ble Supreme Court and in Haryana State Electricity

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Board and another Vs. Hakim Singh^[1] .

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Indeed, the issue lies in a very narrow compass. This Court is called upon to decide whether an application was made on time and whether it has been barred by limitation as per the regulations of the respondent Corporation. Before proceeding further, this Court serves upon itself a caveat that compassionate appointment is not a substantive right or relief to be provided as a matter of course on the demand of the dependants of the deceased employee, notwithstanding their non fulfillment of the norms laid down by the employer in that regard. Having stated thus, this Court proposes to proceed further.

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It may be appreciated that the petitioner’s father was a driver in the respondent Corporation, thus his employment could be categorized as ClassIV or Last Grade in terms of regular service provisions. Ifso facto, the economic and educational background as well as social status of the family of the deceased employee could not be put on a high pedestal in the society. It is not the case of the respondent Corporation that soon after the death of the deceased employee, the dependants of the said employee were put on notice and were given an opportunity to choose either monetary compensation or compassion appointment, in the alternative. Thus, without any fear of contradiction, it can be stated that the respondent Corporation has not

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informed the petitioner or dependants of the deceased employee about the provision prevailing in the Corporation as to the compassionate appointment.

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This Court may have to address the issue whether there could be any justification on the part of the petitioner or any other member of the family of the deceased to come up with an application belatedly in 2013 and still stake a claim. Once there is a policy subsisting regarding compassionate appointment, it cannot be stated that this Court, while exercising the provisions under 226 of the Constitution of India, may as well provide exception to it, inasmuch as the very provision of compassionate appointment is discretionary in nature and does not call for any interference on the part of this Court. Having stated that, once the factual position is examined, the picture it presents is entirely different. Though the workman died in 2007, until 2013 there was a ban regarding compassionate appointment. Nobody could visualize that in 2013 or at any other point of time, there would be relaxation on the ban. The fact remains that all through, from the date of the death of the deceased employee till recently, there had been no provision for providing employment on compassionate basis. Assuming that the petitioner or any other member of the family did not file any application on 21.02.2009, it is admitted that he made an application on 08.03.2013, just a couple of months prior to which the respondent Corporation re-introduced the scheme of compassionate appointment. As such, once there was no policy prevailing condition in the Corporation, it was impossible for the petitioner to get any relief on compassionate appointment immediately after the death of the breadwinner. It is thus difficult to find fault with the failure of the petitioner not to apply during that period when there was a ban.

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In Hakin Singh, the Hon’ble Supreme Court has laid down the ration as to the desirability of judicial interference in the policy of compassionate appointment in the following words:

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“ (w)e are of the view that the High Court has erred in overstretching the scope of the compassionate relief provided by the Board in the circulars as above. It appears that the High Court would have treated the provision as a lien created by the Board for a dependant of the deceased employee. If the family members of the deceased employee can manage for fourteen years after his death one of his legal heirs cannot put forward a claim as though it is a line of succession by virtue of a right of inheritance. The object of the provisions should not be forgotten that it is to give succour to the family to tide

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over the sudden financial crisis befallen the dependants on account of the untimely demise of its sole earning member”.

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Indeed, their Lordships have held that the High Court concerned ought not to have given a direction to the respondent Board to consider the claim of the petitioner therein for the purpose of appointing him under compassionate scheme in the face of such enormous delay. In conspectus, facts of the said matter reveal that if any dependent is under any disability such as being minor, the said dependant was required to submit an application within three years from the date of attaining majority. In that case, the respondent did not make any application within 3 years, but is said have made the application very belatedly. What cannot be lost sight of is that all through, soon after the respondent therein attaining majority, there was no legal impediment to apply for the compassionate appointment. The policy had currency. Under those circumstances, the Hon’ble Supreme Court has held that once it was belated and the beneficiary was not diligent, the Court cannot come to his rescue. I am afraid that position is not to be obtained in the present case. It is axiomatic to state that a case is a precedent based on what it actually decides rather than what logically follows therefrom. In my considered opinion, there has been any amount of factual divergence in Hakim Singh on one hand and the present case on the other. As such, I am constrained to hold that the ratio laid down in the above case may not have any bearing on the facts of the present case.

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In the present case, the petitioner applied as soon as the obstacle of ban was removed. It may have to be appreciated that at the earliest point of time the Corporation, in usual course, offered additional monetary benefit to the petitioner’s family. It needs no reiteration that the compassionate appointment and additional monetary benefit are in the alternative. It is indisputable that the petitioner’s family did not claim additional monetary benefit, which, in effect, implies that all along they have been hoping for compassionate appointment.

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At this juncture, the learned Standing Counsel has made a submission

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that the Government has sanctioned 1120 posts to be filled in compassionate appointment category and that the applications that have been filed periodically by all the dependants of the deceased employee were considered based on the date of their submission, thus, considering the seniority to those applications. Appreciating the said submission, this Court opines that the petitioner’s case shall be considered taking the seniority from the date of its actual submission of application i.e., on 08.03.2013. It is further made clear that this Order does not curtail the discretion of the employer, the Corporation, in examining the suitability of the applicant and the desirability of providing alternative employment to the dependant of an employee who died in 2007. This Court only reiterates that any delay, not at the behest of the applicant, cannot operate to his or her prejudice.

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In the facts and circumstances of the case, the Writ Petition is disposed of directing the respondent authorities to consider the case of the petitioner without reference to the issue of delay, in accordance with the policy holding the field presently and pass appropriate orders thereon with as expeditiously as possible, at any rate, within a period of eight (08) weeks from the date of receipt of a copy of this Order. There shall be no order as to costs.

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Miscellaneous petitions, if any, pending in this writ petition shall stand closed.

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________________________ DAMA SESHADRI NAIDU,J

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10.06.2014 eha

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[1] (1997) 8 Supreme Court Cases 85

G. Pavan Kumar v. The Apsrtc, rep. by its Managing Director

Case brief

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G. Pavan Kumar v. The Apsrtc, rep. by its Managing Director

Case brief

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