IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE 16th DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION NO : 22025 of 2008 Between: Gajjala Sambasivaiah, S/o. Venkata Subbanna, Officer of the Court of II Additional District Judge, Proddatur and R/o. H.No. 8-389-3, Chandramoulinagar Industrial Estate, Kadapa. ..... PETITIONER AND The District Judge, Kadapa. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ, order or direction more in the nature of Mandamus directing the Respondent to consider the petitioner's representation referred to in the petition including the representation dated 14-7-2008 and for a further direction to consider the case ofthe Petitioner for being appointed to the post of Junior Assistant basing upon the educational qualifications he possessed including the experience he acquired in the light of the provisions contained in G.O.Ms.No. 612, G.A.D., dated 30-10-1991 and to pass Counsel for the Petitioner: MR.P.V.MAHESH Counsel for the Respondent SMT.M.BHASKARA LAKSHMI (SC FOR APHC) The Court made the following : HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR W.P.NO. 22025 OF 2008 ORDER: (Per Hon’ble Sri Justice Vilas V. Afzulpurkar) 1. The petitioner in this writ petition has been working as process server in the Court of II-Addl. District Judge, Proddatur, Kadapa district and he seeks issuance of a writ of mandamus to the respondent to consider his representation dated 14.7.2008 and appoint him for the post of Junior Assistant, based upon his educational qualifications which the petitioner possessed at the time of initial appointment. Reliance has been placed heavily by the petitioner on G.O.Ms.No. 612, General Administration (Services – A) Department, dated 30.10.1991 as well as on the orders of this Court in WP No. 900 of 2008 dated 30.7.2008, wherein similar direction was given to consider the representation of the petitioner therein in terms of the GO Ms. No. 612 referred to above. 2. The brief facts of the case are as follows, The petitioner’s father was working as process server/attender in the unit of District Judge, Kadapa, and died in harness on 13.11.1997. The mother of the petitioner made an application dated 23.12.19997 seeking compassionate appointment for the petitioner. After the requisite information was furnished by the petitioner’s mother i.e., date of birth and ages of all the children of deceased employee, the learned District Judge under his proceedings dated 21.1.1998, having found that the petitioner was minor, recommended his case to the High Court for relaxation of age on administrative side. By proceedings of this court dated 9.2.1998 the request for age relaxation was rejected and the learned District Judge was, however, requested to consider the application of petitioner as per Rules on compassionate appointment on his attaining the age of majority. Thereafter, under a further representation dated 29.6.1998 the mother of petitioner as well as the petitioner once again made separate applications seeking appointment of the petitioner on compassionate ground to the post his father held and the said application was followed by a further application dated 5.5.1999 informing that the petitioner will be completing 18 years of age by 18.5.1999 and requested for appointment. Considering the said representations, the learned District Judge, Kadapa, by order dated 27.5.1999, appointed the petitioner as attender on compassionate ground. The petitioner submits that he should have been appointed to the post of Junior Assistant at the initial stage itself, as he was already holding requisite qualification and as per the policy of the Government in GO Ms. No. 612. It is asserted in the writ affidavit that he made several representations from time to time dated 2.6.1999, 20.9.2000, 14.11.2001, 28.7.2004 and 14.7.2008, copies of which are annexed to this writ petition. The petitioner has, therefore, urged that keeping in view the similar directions of this court in WP No. 900 of 2008, dated 30.7.2008, appropriate direction may be issued to the respondent to consider and appoint the petitioner to the post of Junior Assistant instead of Attender. 3. The respondent has filed a counter-affidavit stating that initially when the petitioner made an application for compassionate appointment, he was found to be a minor and as relaxation of his age under Rule 8 of the A.P. Last Grade Service Rules, 1992 having not been agreed by the High Court, the petitioner was not eligible for appointment at that time. However, the later representation of petitioner seeking appointment on compassionate ground to the post under Last Grade Service which the deceased father was holding, was favourably considered after he attained majority and keeping in view the availability of vacancies of process servers/attenders, the writ petitioner was appointed as attender under the proceedings of respondent dated 29.5.1999. It has been asserted in the counter-affidavit that the petitioner himself was seeking compassionate appointment to the post in which his father was working and therefore GO Ms.No. 612 is not applicable. It is also asserted that as per the office note dated 9.1.1998 and 27.5.1999 put up before the appointing authority at the time of consideration of petitioner’s application, there were vacancies of process servers/attenders only in the district and no other posts were vacant at that time. The allegation of the petitioner that his case was not considered for the post of Junior Assistant in spite of existence of vacancies was denied. The respondent further states that as far as several representations as mentioned in the writ affidavit are concerned, it is stated that except the representation of the petitioner dated 14.7.2008, other representations are not available in the office. The respondent, therefore, asserts that the facts and circumstances in WP No. 900 of 2008 relied upon by the petitioner are not applicable as the facts in the present case are entirely different. 4. The petitioner has filed a reply affidavit contending that in terms of policy of the Government as noticed from GO Ms.No. 612 referred to above, the petitioner being educationally qualified to hold the post of Junior Assistant, should have been appointed to that post, instead of Attender. The petitioner states that though the respondent denied receipt of any representations except one representation, dated 14.7.2008, he asserts that he did make those representations. He also submits that the order of this court in WP No. 900 of 2008 was implemented and the petitioner therein was appointed as Field Assistant and similar benefit may be given to the petitioner herein. He also contended that though the rules permit consideration of the case based upon the educational qualification, the petitioner couldn’t be denied the said benefit merely because he and his mother sought appointment to the post held by the deceased employee. The petitioner accepts that as per his representation dated 14.7.2008 he made a request for promotion/deputation to the post of personal assistant. 5. We have heard Sri M.R.K. Chowdary, learned senior counsel appearing for the petitioner and Smt. M. Bhaskara Lakshmi, learned standing counsel appearing for the respondent. 6. The learned senior counsel appearing for the petitioner contended that the very purpose of GO Ms.No. 612 is frustrated by not considering the eligibility of petitioner to the post of Junior Assistant and the respondent ought to have taken into consideration the educational qualifications of petitioner and applied the said GO in terms of the directions of this Court in WP No. 900 of 2008 and the petitioner is entitled to the similar relief for being appointed to the post of Junior Assistant. He relied upon several decisions of the Supreme Court in Life Insurance Corporation of India Vs. Mrs. Asha Ramachandra Ambekar and another [1], Umesh Kumar Nagapal Vs. State of Haryana and others [2], State of Haryana Vs. Naresh Kumar Bali [3], State of Bihar and others Vs. Samsuz Zoha etc. [4], I.G. (Karmik) and others Vs. Prahalad Mani Tripathi [5] and V. Sivamurthy and othes Vs. State of Andhra Pradesh and others [6]. 7. Smt. M. Bhaskara Lakshmi, learned standing counsel appearing for the respondent has, however, contended that firstly there is no similarity between the present case and the one decided by this Court in WP No. 900 of 2008. She submits that three applications filed by the petitioner and his mother dated 23.12.1997, 29.6.1998 and 5.5.1999 categorically seek appointment of the petitioner to the post held by his father and undisputedly the deceased father of the petitioner was holding the post of process server/attender and the petitioner was appointed to the said post. She further submits that after the petitioner’s appointment on 29.5.1999, the only application made by him which is available on record is the one dated 14.7.2008 and from the said application it is evident that the petitioner was temporarily promoted as Steno-Typist and he worked as such from 29.6.2004 to 13.6.2005 and again he worked as Personal Assistant from 16.6.2005 to 24.8.2005 and as such he requested that the petitioner may be appointed/deputed as Personal Assistant on the basis of previous experience as Personal Assistant. The learned standing counsel would also submit that the petitioner had, in fact, applied under his representation dated 24.4.2004 for being considered to the post of Stenographer as he has completed five years of continuous service as attender. The learned counsel would, therefore, submit that the petitioner has accepted and joined the post of attender as specifically sought for by him in his three representations and merely on the basis of later judgment of this Court in WP No. 900 of 2008, dated 30.7.2008 the petitioner cannot ask for a relief that he should have been considered and appointed to the post of Junior Assistant instead of attender. The learned standing counsel submits that the facts in WP No. 900 of 2008 are entirely different wherein the deceased was working as junior assistant and the request for compassionate appointment was made for a suitable post. She submits that that was not a case where earlier appointment to a lower post was sought to be reviewed for a higher post and the said case has, therefore, no parity even to the facts of the present case and even otherwise GO Ms. No. 612 on which reliance is placed has no application and no enforceable right can be claimed to seek review of earlier appointment. The learned standing counsel has submitted that the principle of estoppel by conduct against the petitioner can be applied and she relied upon decisions of the Supreme Court reported in State of Haryana Vs. Naresh Kumar Bali [7], Director of Education (Secondary) and antoher Vs. Pushpendra Kumar and others [8], State of Rajasthan Vs. Umrao Singh [9] and also I.G. (Karmik) and others Vs. Prahalad Mani Tripathi (5th supra). 8. We have considered the aforesaid submissions in the light of the material on record and we have also perused the record produced by the respondent which contains various applications made by the petitioner and his mother including the first application dated 21.12.1997 which was received by the respondent on 23.12.1997 and the last representation of the petitioner dated 14.7.2008. From the record it is evident that the petitioner and his mother were seeking appointment to the post held by the deceased employee. The office note which is referred to in the counter-affidavit and which was also placed before the learned District Judge at the time of issuing appointment order, specifically says that there were vacancies of process servers/attenders in the district and taking into consideration the vacancy position in the said category, he was considered and appointed as attender on compassionate ground. The record does not show the number of representations which the petitioner is said to have made dated 2.6.1999, 20.9.2000, 14.11.2001 and 28.7.2004 and the same was denied in the counter- affidavit stating that the representation dated 14.7.2008 alone is available. At the outset, it is, therefore, evident that after the petitioner was appointed on 29.5.1999, his two representations thereafter as available on record i.e, representation dated 23.4.2004 wherein he has mentioned that he has completed five years of service as attender and may be considered for promotion to the post of Stenographer and further under his another representation dated 14.7.2008 he reiterated his request for promotion/deputation to the post of Stenographer having acquired qualification and previous experience as personal assistant. The present request made in this writ petition that he should have been appointed as Junior Assistant in the first instance itself instead of post of attender, is therefore, not supported by the record. Further GO Ms.No. 612 on which reliance is placed, states that if the dependents of the deceased employees are eligible to be considered for any category of post whose pay is equal or less than that of Jr. Assistant (L.D.C.) and if they satisfy the qualifications and physical standards prescribed for such posts, they can be considered for posts such as, Police Constables in Home Department, Excise Constables in Excise Department. Helper Grade- I and II in Forest Department, Leading Fireman/Fireman in Fire Service Department etc. It further says that the object of the policy under the said GO is to provide immediate permanent relief to the family of a Government employee who dies in harness as a social security measure. Therefore, the GO is in the nature of further instructions issued by the Government as a policy and the petitioner cannot claim an enforceable legal right under the said GO. The consideration of petitioner at the time of compassionate appointment having been made by the respondent, keeping in view the attending circumstances including the vacancies in the said post, cannot now be declared contrary to GO Ms. No. 612 and the respondent cannot now be directed to reconsider the case of the petitioner and appoint him as Junior Assistant instead of attender. 9. Coming to the decisions relied upon by the learned counsel for the petitioner, in Life Insurance Corporation of India Vs. Mrs. Asha Ramachandra Ambekar and another (1st supra) the Supreme Court held that the Courts cannot order appointment on compassionate grounds dehors the provisions of statutory regulations and instructions and right to compassionate appointment and hardship of a candidate does not entitle him to compassionate appointment dehors statutory provisions. In Umesh Kumar Nagapal Vs. State of Haryana and others (2nd supra) the Supreme Court considered the scheme of compassionate appointment and held that the object of compassionate appointment is to enable the penurious family of the deceased employee to tide over the sudden financial crisis and not provide employment. In State of Haryana Vs. Naresh Kumar Bali (3rd supra) the earlier decision of the Supreme Court in Life Insurance Corporation of India Vs. Mrs. Asha Ramachandra Ambekar and another (1st supra) was followed. I n V. Sivamurthy and othes Vs. State of Andhra Pradesh and others (6th supra) the Supreme Court has held that appointments both as a consequence of medical invalidation or as a consequence of death in harness are saved, as they are considered to be exceptions to the rule contained in Article 16 of the Constitution of India, carved out to meet special contingencies in the interests of justice. It also further held that compassionate appointment is an exception to the general rule of appointment and it can be claimed strictly in accordance with the terms of the scheme and not by seeking relaxation of the terms of the scheme. The principles relating to compassionate appointments was considered by the Supreme Court in para-9 of its judgment. Para-9 reads as under, “9. The principles relating to compassionate appointments may be summarized thus: (a) Compassionate appointment based only on descent is impermissible. Appointments in public service should be made strictly on the basis of open invitation of applications and comparative merit, having regard to Articles 14 and 16 of the Constitution of India. Though no other mode of appointment is permissible, appointments on compassionate grounds are well recognised exception to the said general rule, carved out in the interest of justice to meet certain contingencies. (b) Two well recognized contingencies which are carved out as exceptions to the general rule are: (i) appointment on compassionate grounds to meet the sudden crisis occurring in a family on account of the death of the bread-winner while in service. (ii) appointment on compassionate ground to meet the crisis in a family on account of medical invalidation of the bread winner. Another contingency, though less recognized, is where land holders lose their entire land for a public project, the scheme provides for compassionate appointment to members of the families of project affected persons. (Particularly where the law under which the acquisition is made does not provide for market value and solatium, as compensation). (c) Compassionate appointment can neither be claimed, nor be granted, unless the rules governing the service permit such appointments. Such appointments shall be strictly in accordance with the scheme governing such appointments and against existing vacancies. (d) Compassionate appointments are permissible only in the case of a dependant member of family of the employee concerned, that is spouse, son or daughter and not other relatives. Such appointments should be only to posts in the lower category, that is, class III and IV posts and the crises cannot be permitted to be converted into a boon by seeking employment in Class I or II posts.” 10. Then coming to the decisions relied upon by the learned Standing Counsel for the respondent, in State of Haryana Vs. Naresh Kumar Bali (3rd supra), and also relied upon by the learned senior counsel appearing for the petitioner, the son of a deceased employee was appointed to the post of a clerk on compassionate ground and without objection he joined the post of clerk and after one year he made a request for his compassionate appointment as Inspector/Assistant Sub-Inspector of Police which was rejected and the Supreme Court held it not discriminatory and observed that the appointment on compassionate ground as per the Government scheme to the post of clerk as requested by his mother was made and completed. The claim for appointment as Inspector was never made earlier. 11. In State of Rajasthan Vs. Umrao Singh (9th supra) father of a candidate died while he was serving as a Sub- Inspector, CID (Special Branch). The son applied for appointment on compassaionate ground as Sub-Inspector or LDC and was consequently appointed as LDC, After accepting that appointment he sought appointment as Sub-Inspector, which was denied. The Supreme Court held that, “Having accepted the appointment as LDC, the respondent’s right to be considered for the appointment on compassionate ground was consummated. No further consideration on compassionate ground would ever arise. Otherwise, it would be a case of “endless compassion”. Eligibility to be appointed as Sub-Inspector of Police is one thing, the process of selection is yet another thing. Merely because of the so-called eligibility, the learned Single Judge of the High court was persuaded to the view that direction be issued under proviso to Rule 5 of Rules which has no application to the facts of this case.” 12. I n I.G. (Karmik) and others Vs. Prahalad Mani Tripathi (5th supra) and also relied upon by the learned senior counsel for the petitioner, the Supreme Court held that the respondent having accepted the said post without any demur whatsoever, he, therefore, upon obtaining appointment in a lower post could not have been permitted to turn round and contend that he was entitled for a higher post although not eligible therefor. 13. No doubt in the present case the eligibility of the petitioner is not in issue, but his conduct in accepting and working as attender on compassionate ground and thereafter seeking the post of Junior Assistant now would, in reality, amount to review of his compassionate appointment made in 1999 as attender. As already mentioned above, the decision of this Court in WP No. 900 of 2008 is clearly distinguishable on facts and inasmuch as in that decision the candidate was not appointed to any post under compassionate appointment and was seeking appointment in terms of GO Ms. No. 612, referred to above. Such is not the situation in the present case. The writ petition is misconceived and is liable to be dismissed. 13. Accordingly the writ petition is dismissed. However, no order as to costs. _______ GMJ KR Dt. 16.7.2009 _______ VVAJ ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1) 2 CD copies Form-NIC-OGS/WP{SPJS} [1] (1994) 2 Supreme Court Cases 718 [2] (1994) 4 Supreme Court Cases 138 [3] (1994) 4 Supreme Court Cases 448 [4] AIR 1996 SUPREME COURT 1961 [5] (2007) 6 Supreme Court Cases 162 [6] 2008 (5) ALT 17 (SC) [7] (1994) 4 Supreme Court Cases 448 [8] (1998) 5 Supreme Court Cases 192 [9] (1994) 6 Supreme Court Cases 560