IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY SIXTH DAY OF JULY TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE GODA RAGHURAM and HON'BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION Nos.11957, 11961 & 14637 of 2007 and WRIT PETITION No.1594 of 2008 WRIT PETITION No.11957 of 2007 Between: C.Nagesh and others ..... PETITIONER(S) AND The Government of Andhra Pradesh, rep. by its Prl. Secretary, Panchayat Raj (Services 3) Dept., Secretariat, Saifabad, Hyderabad and others .....RESPONDENT(S) WRIT PETITION No.11961 of 2007 Between: N.Madhusudan Reddy and others ..... PETITIONER(S) AND The Government of Andhra Pradesh, rep. by its Prl. Secretary, Panchayat Raj (Services 3) Dept., Secretariat, Saifabad, Hyderabad and others .....RESPONDENT(S) WRIT PETITION Nos.14637 of 2007 Between: I.Raghava Rao and others ..... PETITIONER(S) AND The Government of Andhra Pradesh, rep. by its Prl. Secretary, Panchayat Raj (Services 3) Dept., Secretariat, Saifabad, Hyderabad and others .....RESPONDENT(S) WRIT PETITION No.1594 of 2008 Ch.Venkatesh ..... PETITIONER(S) AND The Government of Andhra Pradesh, rep. by its Prl. Secretary, Panchayat Raj (Services 3) Dept., Secretariat, Hyderabad and others .....RESPONDENT(S) HON'BLE SRI JUSTICE GODA RAGHURAM and HON'BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION Nos.11957, 11961 & 14637 of 2007 and WRIT PETITION No.1594 of 2008 COMMON ORDER: (Per HON'BLE SRI JUSTICE GODA RAGHURAM) These writ petitions involve similar issues of fact and substantially similar legal issues and are, therefore, heard and disposed of together by this judgment. The respective writ petitions are directed against the common order dated 03.01.2007 in O.A.No.2150 of 2006 and batch; in so far as the order relates to O.A.Nos.39 of 2005; 40 of 2005; 2105 of 2006; and 2571 of 2006, respectively. The applicants claim to be possessed of or to have acquired the relevant qualifications for appointment to the post of Panchayat Secretary governed by the Andhra Pradesh Panchayat Subordinate Service (Supplementary) Special Rules issued in G.O.Ms.No.384, Panchayat Raj & Rural Development (Estt.IX) Department, dated 22.12.2001, or Junior Assistant in Panchayat Raj Department. The petitioners and others similarly situate (applicants in the other O.As. which were also dismissed by the common order of the Tribunal dated 03.01.2007) asserting to be dependents of employees serving in various categories of posts, in various services under the State (who had retired on medical invalidation), applied to the concerned authorities seeking appointment to the post of Junior Assistant/Record Assistant/ Panchayat Secretary, on compassionate grounds. The scheme of compassionate appointment in the State and the litigation engendered on account of the scheme had a tortuous and meandering course, briefly adverted to hereunder: a) On 30.07.1980, the State issued G.O.Ms.No.504, General Administration (Services–A) Department, dated 30.07.1980, setting out a scheme for compassionate appointment to the dependents of government servants who retired on medical invalidation grounds. By order dated 12.10.2001, in Government Of A.P. vs. D.Gopaiah[1], a learned Full Bench of this Court invalidated the scheme (in G.O.Ms.No.504) on the ground that the same is unconstitutional and violative of Articles 14 and 16 of the Constitution of India in so far as it enabled appointments to be made on compassionate grounds of dependents of persons demitting service on medical invalidation; b) As a consequence of the judgment above, the State issued G.O.Ms.No.202, General Administration (Ser.A) Department, dated 27.04.2002, withdrawing the scheme of compassionate appointments for dependents of persons retired on medical invalidation; c) There were a number of intermediary orders of the State pertaining to the scheme of compassionate appointments on medical invalidation grounds, which are not relevant or germane for the purposes of these writ petitions. Pursuant to the recommendations of the Cabinet Sub-Committee, G.O.Ms.No.44, General Administration (Ser.A) Department, dated 17.02.2003, was issued enabling consideration for appointment on contract basis to the posts of Executive Officers, Special Category – V, (Panchayat Secretary), the dependents of government employees who retired on medical invalidation and whose cases could not be considered by 27.04.2002 (the date on which the G.O.Ms.No.202 was issued pursuant to the order of the Full Bench of this Court in D.Gopaiah (1 supra) and directing that the appointments on contract basis shall be referable to Rule 9 of the Andhra Pradesh State and Subordinate Service Rules, 1996. This order further provided that where a vacancy in the post of Panchayat Secretary in Category–V is not available, an appointment on contract basis will be considered in equivalent posts of Panchayat Secretary in Category-V, in those districts as Additional Panchayat Secretary in Grade.I Gram Panchayats. Clause (3) of paragraph-3 of this order stated that the duration of the contractual appointment would be decided separately in consultation with Panchayat Raj and Rural Development Department. This order was issued in purported exercise of the executive power of the State under Article 162 of the Constitution, verified as enjoined by Article 166 of the Constitution; d) Subsequently, in G.O.Ms.No.144, Panchayat Raj & Rural Development (Mdl.II) Department, dated 01.05.2003, the State issued an order in furtherance of the policy enjoined in G.O.Ms.No.44 (supra). To the extent relevant and material for the purpose of this lis, G.O.Ms.No.144 enjoined that a person appointed on contract basis in pursuance to the policy contained in G.O.Ms.No.44 shall not be regarded as a member of the service to which he is appointed and shall not be entitled by reason only of such appointment to any preferential right to any other appointment in that or any other service. Clause (5) of this G.O., specified that the contract period shall be one year from the date of appointment which is renewable. G.O.Ms.No.144 is also issued in exercise of the executive power under Article 162 of the Constitution and verified in the manner enjoined by Article 166 of the Constitution; e) On 16.06.2004, the Principal Secretary to the Government issued a Memo to the Collectors (Panchayat Wing) of the State directing continuance of the Panchayat Secretaries who are working on contract basis under the medical invalidation scheme, until further orders. On behalf of the petitioners herein it is contended that the Memo dated 16.06.2004 issued by the Principal Secretary to the Government and addressed to the Collectors (Panchayat Wing) in the State tantamounts to renewal ad infinitum of the initial one year contract tenure of the Panchayat Secretaries appointed under G.O.Ms.No.44 read with G.O.Ms.No.144 dated 17.02.2003 and 01.05.2003 respectively. We will deal with this contention during the course of this order. f) Petitioners and others, seeking appointment as Panchayat Secretaries and other posts on permanent basis on compassionate grounds filed O.A.Nos.32 of 2005 and batch before the learned Andhra Pradesh Administrative Tribunal (The Tribunal). Though an interim order was granted, by the common order impugned herein, the Tribunal dismissed O.A.Nos.32 of 2005 and batch following the judgment of the Full Bench of this Court in D.Gopaiah (1 supra). One V.Sivamurthy, a party to the judgment in D.Gopaiah (1 supra) preferred an appeal to the Supreme Court. In V.Sivamurthy vs. State of Andhra Pradesh and Others[2] the Supreme Court reversed the judgment in D.Gopaiah (1 supra) and upheld the validity of the compassionate appointment scheme contained in the several orders of the Government including the initial scheme set out in G.O.Ms.No.504 dated 30.07.1980, but clarified that the period of 5 years of left over service (of the person on whose medical invalidation the dependent is entitled to consideration for such compassionate appointment) should be reckoned from the date of issue of the order of retirement on medical invalidation and not from the date of the application for seeking retirement on medical invalidation. Thereafter and pursuant to the judgment of the Supreme Court in V.Sivamurthy (2 supra), the State re-issued a scheme of compassionate appointment in G.O.Ms.No.661, General Administration (Ser.G) Department, dated 23.10.2008, in exercise of its executive power under Article 162 of the Constitution and verified in the manner enjoined by Article 166 of the Constitution. There is a detailed raft of provisions, substantive and procedural in G.O.Ms.No.661, to operationalise the scheme of compassionate appointment. These writ petitions are filed challenging the common order of the Tribunal dated 03.01.2007 dismissing their applications seeking compassionate appointment on regular basis and contend that in view of the judgment of the Supreme Court in V.Sivamurthy case (2 supra) the rejection of their O.As. is unsustainable and they are entitled for a declaration that they be treated as having been appointed on compassionate basis on account of the medical invalidation of persons whose dependents they claim to be, on a regular basis. In the light of the chronology of the litigative events adverted to supra, the petitioners are not entitled in specie to the reliefs claimed here. Pursuant to and on account of the judgment in D.Gopaiah (1 supra), the State recanted/ withdrew the scheme of compassionate appointment spelt out in G.O.Ms.No.504, by a formal executive order issued in G.O.Ms.No.202 dated 27.04.2002. The judgment in D.Gopaiah (1 supra) was essentially an exposition of the constitutional principle that appointment on compassionate basis was inconsistent with the equality injunctions of Articles 14 and 16 of the Constitution. The invalidation of the Government Order in G.O.Ms.No.504 dated 30.07.1980 was the inexorable consequence of the exposition of the constitution principle. The ratio of D.Gopaiah (1 supra) was however reversed i n V.Sivamurthy (2 supra). Earlier to the judgment in V.Sivamurthy (2 supra), the State withdrew the scheme of compassionate appointment by a formal expression of executive policy vide G.O.Ms.No.202 dated 27.04.2002. Though V.Sivamurthy (2 supra) enabled the State to have a policy of compassionate appointment, such enabling environment does not obligate the Government to have a policy of compassionate appointment. Whether to have a policy of compassionate appointment or otherwise is a matter of executive choice and is not a constitutional or a legal compulsion. In the interregnum between the judgment in D.Gopaiah (1 supra) and the reversal of that view in V.Sivamurthy (2 supra), the Government introduced the scheme of contractual employment in G.O.Ms.No.44 dated 17.02.2003, the skeleton of which was fleshed out with the operational details in G.O.Ms.No.144 dated 01.05.2003 including as to the tenure of the contract appointment to be made qua G.O.Ms.No.44. The petitioners were all appointed as Panchayat Secretaries or to other posts pursuant to the orders in G.O.Ms.No.44, on a contract basis and not regularly with an age of superannuation. The scheme as per the executive policy expressed in G.O.Ms.No.44 and G.O.Ms.No.144 envisaged appointment only on contract basis for a specific tenure (one year quay G.O.Ms.No.144), no doubt with an option for renewal of the tenure. Though by the Memo dated 16.06.2004 the Principal Secretary to the Government directed continuation of the persons so appointed as Panchayat Secretaries (on contract basis under the medical invalidation scheme), until further orders, this memo is not an amendment to G.O.Ms.No.44 or G.O.Ms.No.144 nor an extension of the contract tenure (initially for a period of one year with an option to renew) to an indefinite tenure or to a tenure until further orders. At any rate and alternatively, even if the memo dated 16.06.2004 were to be construed as an executive decision to continue persons appointed as Panchayat Secretaries on a contract basis qua the policy in G.O.Ms.No.44 and G.O.Ms.No.144 until further orders, the tenure would continue to be contractual and liable to be terminated by the appropriate and competent authority on review. The petitioners claim, asserted before the Tribunal and reiterated here, that their initial contractual appointment be declared to be a permanent appointment to the post of Panchayat Secretaries or the other posts cannot be countenanced as there is no legal foundation for such claim either from the provisions of G.O.Ms.No.44 or G.O.Ms.No.144 even read in conjunction with the Principal Secretary’s memo dated 16.06.2004. The regularization of a contractual appointment as a regular appointment is a matter of governmental choice and policy and must be explicitly reflected in some instrument of the State. There is no such instrument brought to the notice of this Court whereby the contractual appointment of the petitioners is transformed into a permanent appointment. It is trite principle that a legal right is the foundation for seeking and issue of mandamus. It is not within the province of this Court (as the judicial branch) to generate policy choices which are normatively within the province of the executive branch with the Government in our scheme of separation of powers. It is for the State to consider, in the plenitude of its discretion and the constitutionally consecrated executive power, whether the petitioners who were initially appointed as Panchayat Secretaries or to other posts on a contract tenure should be regularized/converted into a regular/ permanent tenure and on what terms, subject to what conditions and to what extent. These complex executive choices cannot be mandamised in exercise of the judicial power of the State. The State has now issued a revised policy of compassionate appointments with several operational details of such scheme, in G.O.Ms.No.661, General Administration (Ser.G) Department, dated 23.10.2008. If the petitioners are eligible to be considered and appointed on regular basis as Panchayat Secretary or other posts by virtue of the orders issued in G.O.Ms.No.661, the respondent-State is bound to consider their cases in accordance with the policy outlined and explicated in G.O.Ms.No.661. It is also open to the petitioners to represent to the State to consider their cases for regularization or for other appropriate reliefs given the peculiar circumstances in which they came to be appointed on contract basis during the interregnum between the decision in D.Gopaiah (1 supra) and the decision of the Supreme Court in V.Sivamurthy (2 supra). The petitioners are also at liberty to request the respondent-State to accommodate expectations generated in them, that their initial contract tenure would be eventually made permanent. On the analysis above, we conclude that the dismissal of the O.As. (to the extent they pertain to the writ petitioners herein), by the learned Tribunal on the basis of the judgment in D.Gopaiah (1 supra) cannot be sustained in view of the judgment of the Supreme Court in V.Sivamurthy (2 supra). However, the petitioners are not entitled to the specific reliefs they sought in the O.As. in view of the analysis above. For this reason, we find no grounds to interfere with the order of the Tribunal impugned herein. The writ petitions are, however, disposed of with liberty to the petitioners to represent to the Government for evolving a specifically tailored scheme of compassionate appointment/ regular appointment/regularization of their contract appointments, in case the petitioners are advised that their cases cannot be accommodated within the scheme of compassionate appointments spelt out in G.O.Ms.No.661 dated 23.10.2008. No order as to costs. ______________________ GODA RAGHURAM, J ___________________ R.KANTHA RAO, J 26th July 2010 CVRK [1] 2001 (6) ALT 553 (F.B.) [2] (2008) 13 SCC 730