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Article 16 in The Constitution Of India 1949
State Of Punjab And Ors vs Dev Raj & Ors on 21 September, 2007
V. Sivamurthy vs State Of Andhra Pradesh & Ors on 12 August, 2008
Government Of Andhra Pradesh And ... vs Sri D. Janardhana Rao And Another on 23 September, 1976

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Andhra High Court
Department Of Home, A.P. ... vs Shaik Ismail And Another

WP No.23636 of 2010

21.02.2012

The Government of Andhra Pradesh, rep.by its Principal Secretary, Department of Home, A.P. Secretariat, Hyderabad and 3 others

Shaik Ismail and another

Counsel for the petitioner: G.P. for services I

Counsel for the Respondents: N. Ashok Kumar Goud for R-1.

? Cases referred:

1. 2001 (6) ALT 553

2. (2008) 13 SCC 730 = (2009) 1 SCC (L&S) 335

3. (2010) 11 SCC 661

ORDER (per Hon'ble Sri Justice K.G. Shankar):

The petitioners seek for a Writ of Certiorari to quash the orders of the Andhra Pradesh Administrative Tribunal (The Tribunal, for short) in O.A.No.4507 of 2009, dated 29.01.2010. The first respondent, who is an unemployed person, filed O.A.No.4507 of 2009 questioning the propriety of petitioners 2 to 4 herein in not appointing him to a post under the medical invalidation scheme.

2. The father of the first respondent, by name Shaik Chand, was working as Assistant Sub-Inspector of Police, District Crime Branch, Adilabad. On account of health grounds, he decided to retire on medical invalidation. Upon his application, he was directed to appear before the Medical Board. The Medical Board considered that the father of the first respondent herein was medically unfit. He was, consequently, permitted to retire from service. The father of the first respondent accordingly retired from service in December, 2001 on the ground of medical invalidation.

3. The first respondent, who is the eldest son of his father-Shaik Chand, was entitled to be appointed on compassionate grounds. The first respondent applied to the departmental authorities for appointment on compassionate grounds taking the stand that his father retired from service on medical invalidation.

4. Ultimately, the first respondent was appointed as an Attender on contract basis in the office of the fourth petitioner herein. He has been working on a consolidated pay. In view of the judgment of the High Court in Government of Andhra Pradesh v. D. Gopaiah1 where the Full Bench held that the scheme of compassionate appointments on medical invalidation cases was against the Constitution, Government of Andhra Pradesh issued G.O.Ms.No.246, dated 30.05.2006 discharging the candidates who were appointed under the scheme of medical invalidation. Consequently, the first respondent was discharged from the post of attender, through orders of the fourth petitioner herein, dated 11.12.2006.

5. The Supreme Court, subsequently overruled the judgment of D. Gopaiah, in V. Sivamurthy v. State of Andhra Pradesh2. The first respondent, therefore, seeks for his appointment once again on compassionate grounds.

6. The fourth respondent laid counter before the Tribunal. The contentions of the first respondent that his father retired from service on medical invalidation, that he was appointed as an attender under the medical invalidation scheme and that he was subsequently discharged in view of G.O.Ms.No.246 were all admitted. The petitioners contend that as there was no vacancy of attender in the office of the third petitioner herein, the first respondent could not be accommodated. It was further averred in the counter before the Tribunal that the application of the first respondent could not be considered on account of non- availability of the roaster point for his appointment. It is alleged that the petitioner, therefore, is not entitled to the relief as prayed for.

7. This is a typical case of retirement on medical invalidation. There was a scheme of appointment of the dependents of government servants, who retired on medical invalidation. The scheme was in force till the High Court of Andhra Pradesh pronounced Gopaiah's case. The Full Bench in that case held that the scheme was against the Constitution and hence was not enforceable. Consequently, Government of Andhra Pradesh passed orders in G.O.Ms.No.202, dated 27.04.2002 dispensing with the scheme of compassionate appointments to the dependents of the government employees who retired on medical invalidation. The judgment of the High Court in Gopaiah's case was pronounced on 12.10.2001. The scheme of compassionate appointments, however, continued till 27.04.2002. While so, the father of the first respondent retired from service in December, 2001. In other words, the father of the first respondent retired from service after the Full Bench of the High Court held that the scheme of compassionate appointments to the dependents of the employees who retired on medical invalidation grounds is bad. However, the father of the first respondent retired from service prior to G.O.Ms.No.202, dated 27.04.2002.

8. The first respondent was appointed as attender on 03.12.2005, which was more than 31/2 years after the passing of G.O.Ms.No.202. Subsequently, G.O.Ms.No. 246, dated 30.05.2006 was passed. Appointments on contract basis as Panchayat Secretaries and appointments into Andhra Pradesh Last Grade Service to the dependants of government employees retired on medical invalidation were directed to be withdrawn. G.O.Ms.No.44, dated 17.02.2003 and G.O.Ms.No.100 dated 03.03.2005 passed after the judgment in

Gopaiah were consequently withdrawn. Admittedly, the services of the first respondent were terminated by discharging him from duty, in view of the orders in G.O.Ms.No.246.

9. While things stood thus, the Supreme Court held in V. Siva Murthy's case that the scheme of compassionate appointments for the dependants of government service, who retired on medical invalidation, is not violative of Article 16 of the Constitution.

The Government of Andhra Pradesh was given liberty to revive the scheme with or without modification. Similar orders were passed in State Bank of India v. Raj Kumar3 where the Supreme Court observed that it is open for the employer to provide for such a scheme. In view of the judgments of the Supreme Court, the scheme of compassionate appointments was revived, through orders in G.O.Ms.No.661, dated 23.10.2008. The first respondent thereafter petitioned seeking for a declaration that the action of the petitioners herein in not appointing the first respondent to a suitable post is illegal and arbitrary and also for a direction to the petitioners to appoint the first respondent for a suitable post.

The Tribunal directed the petitioners herein to appoint the first respondent to a suitable post in terms of G.O.Ms.No.661 within a period of four weeks from the date of the order. Aggrieved by the same, the petitioners preferred the present writ petition.

10. The learned Government Pleader for Services-I contends that the scheme as revived under G.O.Ms.No.661 is only prospective in its operation and that the first respondent cannot seek for the benefits under G.O.Ms.No.661.

11. Para 14 (4) of G.O.Ms.No.661 ordains

"14. After careful consideration, Government issue the following orders on reviving the scheme on compassionate appointments on medical invalidation of government employees.

1. ....

2. ....

3. ....

4. Applications for appointment from such persons shall be entertained within a period of one year from the date of retirement on Government Servant of medical invalidation.

5. ...."

12. The learned Government Pleader for Services-I contended that the scheme applies to the dependants of a government servant subject to the condition that the government servant should have retired within one year from the date of the application, counted backwards. He also placed reliance upon a circular of the Government in Circular Memo No.43785/Ser.G/2010-5, General Administration (SER.G) Department, dated 12.12.2011. Para 8 of the Circular reads: "8. Therefore, it is hereby reiterated that the ordrs issued in G.O.Ms.No.661, G.A. (Ser.G) Department, dated 23.10.2008 will have only prospective effect. Hence, the cases pertaining to interregnum period i.e., in between 27.04.2002 to 23.10.2008 cannot be considered."

13. It is the contention of the learned counsel for the Government Pleader representing the petitioners that both G.O.Ms.No.661 as well as Circular Memo show that the scheme under G.O.Ms.No.661 is prospective in operation and that it is the revival of an earlier scheme, which was discontinued, in view of the judgment of the High Court in Gopaiah's case. The basic question therefore is whether G.O.Ms.No.661 applies to the first respondent where the father of the first respondent retired in December, 2001 and the scheme was discontinued through G.O.Ms.No.202, dated 27.04.2002.

14. The scheme of compassionate appointment for the dependants of the government servants, who retired on medical invalidation, was discontinued with effect from 27.04.2002. However, the judgment in Gopaiah's case was pronounced on 12.10.2001. The law as stood defined on 12.10.2001 is that the scheme was violative of Article 16 of the Constitution. We do not consider that the scheme stood valid till 27.04.2002. We believe that the scheme should be stopped with effect from 12.10.2001 on which date the High Court of A.P. declared the scheme as being against the spirit of the Constitution. This date of the judgment and the date of the orders in G.O.Ms.No.202 are important, since the father of the first respondent retired from service after the pronouncement of the judgment in Gopaiah's case, but before the formal discontinuation of the scheme by the Government. Government cannot claim that the scheme became unenforceable with effect from 27.04.2002 only. The moment the Full Bench of the High Court delivered the judgment on 12.10.2001 holding that the scheme was in violation of the provisions of the Constitution, the scheme automatically stood cancelled and became unenforceable.

15. The first respondent consequently could not claim that his appointment in 2005 was valid and that subsequent discontinuation of the petitioner is bad.

16. Curiously, the petitioner and several others were appointed after 27.04.2002 albeit the scheme was discontinued with effect from 27.04.2002. Perhaps, Government considered that all retirements, which were prior to 27.04.2002 were governed by the old scheme. We clarify that from 12.10.2001 when the Full Bench of the High Court held that the scheme was against the Constitution, the scheme automatically stood abolished and any appointment in terms of the scheme would be bad as the very scheme was considered to be against the Constitution by the Full Bench of the Hon'ble High Court. Consequently, the very appointment of the first respondent in 2005 was bad and the discharge of the first respondent cannot be questioned by the first respondent.

17. However, an intervening circumstance has crept in. In 2008, the scheme was revived, through G.O.Ms.No.661, dated 23.10.2008. We have already referred the relevant part, viz., paragraph No.14 of the said order. As already stated, Government had also clarified, through Circular Memo dated 12.12.2011, already referred to, that the new scheme introduced through G.O.Ms.No.661 was prospective only in nature. In other words, if a Government employee retires on or after 23.10.2008 on which date G.O.Ms.No.661 came into force, his dependants could be appointed by way of compassionate appointment if they applied within a period of one year from the date of the retirement of the government servant.

18. The first respondent does not fall within the ambit of G.O.Ms.No.661, as his father did not retire within one year from the date of G.O.Ms.No.661. His father retired way back 2001, whereas G.O.Ms.No.661 came into force in 2008. Consequently, G.O.Ms.No.661 has no application to the case of the first respondent.

19. Where the scheme stood revived with effect from 23.10.2008 and where the father of the petitioner retired after the scheme was declared to be ultra virus and before the Supreme Court held that the scheme was not against the Constitution, the first respondent would not be entitled to the benefits of G.O.Ms.No.661. Consequently, once the first respondent had been removed from service in terms of G.O.Ms.No.246, the first respondent cannot seek for reappointment on the ground of the revival of the scheme, through G.O.Ms.No.661.

20. There is yet another G.O.Ms.No.124, dated 02.04.2008. It was prior to G.O.Ms.No.661. In fact, G.O.Ms.No.661 also referred to G.O.Ms.No.124. Referring to those persons who were appointed subsequent to the judgment in Gopaiah's case, G.O.Ms.No.124 directed that the Panchayat Secretaries, who were terminated from service, should be reappointed on contract basis. This decision was taken in view of the judgment of the Supreme Court in V. Sivamurthy's case that the scheme was not violative of Article 16 of the Constitution of India.

21. However, the first respondent was never appointed as a Panchayat Secretary. His father retired as Assistant Sub-Inspector. The first respondent was appointed as an Attender on contract basis. Consequently, G.O.Ms.No.124 has no application to the first respondent.

22. There is another circumstance, which needs to be examined. Although the scheme became inoperative in view of the judgment of the Full Bench dated 12.10.2001, the Government took note of the same for the first time on 27.04.2002 and passed G.O.Ms.No.202. Several Government orders were passed thereafter in terms of the Full Bench decision of the Andhra Pradesh High Court. We have already noticed that the scheme became inoperative with effect from 12.10.2001 and not from 27.04.2002, as the basis for the inoperation of the scheme is the decision of Gopaiah.

23. However, in Sivamurthy, the Supreme Court held that the scheme was not violative of Article 16 of the Constitution of India. The question is as to when does the scheme comes into force. Sivamurthy was pronounced on 12.08.2008. However, the validity of the scheme relates back to the original date. However, by 2002 itself, the scheme was discontinued. In Sivamurthy, this fact was brought out, so much so, Sivamurthy gave liberty to the State Government to frame fresh rules providing for the scheme. The new scheme was introduced, through G.O.Ms.No.661 on 23.10.2008. It is already noticed that G.O.Ms.No.661 is prospective in operation. Therefore, the original scheme which was invalidated with effect from 12.10.2001 remained so till new scheme was introduced, through G.O.Ms.No.661. The first respondent, therefore, cannot claim that he is entitled to the benefit of the scheme, as it existed prior to G.O.Ms.No.661.

24. Another question also comes up for consideration. The father of the first respondent retired from service in 2001 by which time the scheme was not discontinued. What would be the effect of the same upon the fate of the first respondent deserves to be examined.

25. It is true that the father of the first respondent obtained retirement on medical invalidation grounds on 31.12.2001 and that the first Government Order in G.O.Ms.No.202 cancelling the scheme of compassionate appointment for the dependents of the Government servant, who retired on medical invalidation was issued on 27.04.2002. However, the judgment of the Full Bench of this Court was pronounced on 12.10.2001.

The scheme became invalid with effect from 12.10.2001, as the Full Bench held that such scheme was violative of Article 16 of the Constitution of India.

26. Indeed, Sivamurthy laying down that such a scheme is not violative of Article 16 of the Constitution of India was pronounced on 12.08.2008. Government of Andhra Pradesh issued G.O.Ms.No.661 on the heels of the judgment in Sivamurthy. The retirement of the father of the first respondent, the appointment of the first respondent on compassionate grounds and discontinuation of the services of the first respondent were all between 12.10.2001 when the Full Bench of the Andhra Pranch High Court pronounced its verdict and Sivamurthy disposed of by the Supreme Court on 12.08.2008. Indeed, it is unfortunate that the first respondent falls within this period. Where the appointment of the first respondent was in 2005 after the discontinuation of the scheme in 2002 and more so after the pronouncement of the judgment of the Full Bench in 2001, the very appointment of the first respondent under compassionate appointment scheme cannot be sustained. Consequently, the first respondent cannot seek for compassionate appointment under the new scheme, which obviously is prospective in its operation.

27. Viewed in any angle, the first respondent is not entitled to the benefits under G.O.Ms.Nos.202, 124 and 661, so much so, the discharging of the first respondent from his duties cannot be questioned by the first respondent. We are unable to appreciate the view adopted by the Tribunal. The Tribunal went by the revival of the scheme through G.O.Ms.No.661 considering it as retrospective. In view of the paragraph No.14 of G.O. as well as the clarification in Circular Memo issued by the Government, we conclude that G.O.Ms.No.661 is only prospective in operation. Consequently, the first respondent has no right of appointment as the dependent of a government servant, who retired from service on medical invalidation. We consequently set aside the order of the Tribunal and dismiss the O.A.No.4507 of 2009 holding that the first respondent herein is not entitled to the declaration and direction sought for.

28. The writ petition is, accordingly, allowed. There shall, however, be no order as to costs.

________________

V. ESWARAIAH, J

_________________

K.G. SHANKAR, J