* HON’BLE THE CHIEF JUSTICE SRI ANIL R. DAVE AND *HON’BLE SRI JUSTICE GOPALAKRISHNA TAMADA + Writ Appeal No.110 of 2008 %Dated 14-03-2008 # Between: The Andhra Pradesh State Road Transport Corporation, Hyderabad Rep. by its Managing Director and others ...Appellants AND Valluri Venkata Narayana and another …Respondents ! Counsel for Appellants: Shri C. Prakash Reddy, Standing Counsel for APSRTC ^Counsel for Respondents: Shri P. Prabhakara Rao <GIST: >Head note: ?Cases referred: 1) (1994) 4 SCC 138 2) (1994) 2 SCC 718 3) (1997) 5 SCC 301 HON’BLE THE CHIEF JUSTICE SRI ANIL R. DAVE AND HON’BLE SRI JUSTICE GOPALAKRISHNA TAMADA Writ Appeal No.110 of 2008 Between: The Andhra Pradesh State Road Transport Corporation, Hyderabad Rep. by its Managing Director and others … Appellants And Valluri Venkata Narayana and another … Respondents Counsel for the appellants: Shri C. Prakash Reddy, Standing Counsel for APSRTC Counsel for the respondents: Shri P. Prabhakara Rao :: JUDGMENT :: March 14, 2008 Per Shri Anil R. Dave, Chief Justice Being aggrieved by the order dated 23.01.2008 passed by the learned Single Judge in Writ Petition No.24641 of 2006, the appellants have filed this appeal. By virtue of the impugned order, the learned Single Judge has directed the appellants – original respondents to appoint the respondents – original petitioners as Conductors Grade-II, in pursuance of the proceedings dated 10.05.2002. The facts giving rise to the present litigation, in a nutshell, are as under: The present respondents are the dependants of the deceased employees of the appellant Corporation, who had died in harness. As per the Scheme known as “Bread Winner Scheme”, which was in force in the past, the respondents were eligible to be appointed as Conductors by the appellant employer. Before the respondents could be appointed as Conductors under the aforestated Scheme, the Government of Andhra Pradesh, which has administrative control over the appellant employer, had dispensed with/modified the Scheme because of certain changed circumstances and by virtue of the new Scheme, no dependant of a deceased employee is entitled to get any appointment in service on compassionate ground. By virtue of the new Scheme, the dependants of an employee, who dies in harness, are entitled to a lump sum amount referred to in G.O.Ms.No.36, dated 05.09.2001, which was applied to all State Level Public Enterprises, including the appellants. As the respondents – original petitioners were not given appointment as Conductors, they had filed the aforestated writ petition, which has been allowed by the learned Single Judge and the learned Single Judge has directed the appellants to appoint the respondents as Conductors. The learned Single Judge passed the impugned order by holding that the order dated 16.12.2005 passed by another learned Single Judge of this Court in Writ Petition No.26572 of 2005, which was confirmed by a Division Bench of this Court in Writ Appeal No.320 of 2006 on 17.04.2006, is squarely applicable to the facts of the case. We have heard learned advocate Sri C. Prakash Reddy appearing for the appellant Corporation and learned advocate Sri P. Prabhakara Rao appearing for the respondents. It has been submitted on behalf of the appellants that the learned Single Judge has not considered the fact that there is no policy with regard to giving compassionate appointment. Our attention has been drawn to the contents of the affidavit in reply, which had been filed in the writ petition. It has been specifically stated in the reply that with effect from 05.09.2001, in pursuance of G.O.Ms.No.36 and more particularly from 30.07.2005, the policy with regard to giving compassionate appointment to one of the dependants of the deceased employee, who died in harness, had been abolished. Looking to the financial condition of the appellant Corporation, it was decided not to recruit any person by giving compassionate appointment and, instead of providing employment to the dependant of the deceased employee, it was decided to make ex-gratia payment to the dependants of the deceased employee. Our attention has been drawn to the said letter dated 30.07.2005, which was annexed to the affidavit in reply filed by the appellants before the learned Single Judge. It has been submitted that as per the provisions of Andhra Pradesh (Regulation of Appointments to Public Services and Rationalisation of Staff Pattern and Pay Structure) Act, 1994, each appointment to be made by the appellant Corporation is subject to prior approval of the State of Andhra Pradesh. As stated hereinabove, because of weak financial condition of the appellant Corporation, it was decided to abandon the policy with regard to compassionate appointment in pursuance of the instructions received from the Government of Andhra Pradesh under G.O.Ms.No.36, dated 05.09.2001. A copy of the said letter has also been annexed to the affidavit in reply, which was filed by the appellants before the learned Single Judge. It is pertinent to note that when the appellant Corporation was directed by the Government of Andhra Pradesh to dispense with the policy with regard to compassionate appointment, the appellant Corporation had again requested the Principal Secretary to the Government of Andhra Pradesh under letter dated 16.05.2007 to continue the policy with regard to giving appointment to the dependants of the deceased employees under the “Bread Winner Scheme”, which was in vogue earlier. However, the Government of Andhra Pradesh, for the reasons stated hereinabove, turned down the said request under its letter dated 11.07.2007. In the circumstances, the appellants were constrained to change the policy with regard to giving appointment on compassionate ground. Thus, it is clear that there is no policy with regard to giving appointment on compassionate ground under the “Bread Winner Scheme”. It has been submitted by the learned advocate Sri C. Prakash Reddy appearing for the appellants that the learned Single Judge ought not to have directed the appellant Corporation to give appointment on compassionate ground especially when there was no scheme in existence with regard to giving such appointment. In the aforesaid circumstances, it has been prayed that the order passed by the learned Single Judge be quashed and set aside so that the appellant Corporation may not be constrained to act against the policy framed by it under instructions of the government. On the other hand, learned advocate Sri P. Prabhakara Rao appearing for the respondents has supported the judgment delivered by the learned Single Judge by submitting that the learned Single Judge had followed the judgment delivered in another case and, according to him, the said judgment is just, legal and proper. We have heard the learned advocates at length and have considered not only the documents referred to in the affidavit in reply filed by the appellants, but also the settled legal provision with regard to giving appointment on compassionate ground. It cannot be disputed that the dependants of a deceased employee have no legal right to be appointed in service if there is no policy with regard to providing employment in such a case. The Hon’ble Supreme Court has held in the case of Umesh Kumar Nagpal v. State of Haryana[1] that employment by way of compassionate appointment cannot become a source of recruitment. Normally, in the public services, appointments should be made strictly on the basis of open invitation of applications and merit. All candidates should be given opportunity to have the government job and neither government nor local authority can give undue preference to someone unless there is a statutory provision, which might give some preference to someone for some reason. It has also been held by the Hon’ble Supreme Court in the case of LIC v. Asha Ramchhandra Ambedkar[2] that the Court should endeavour to find out whether a particular case, in which sympathetic considerations are to be weighed, falls within the scope of law or the policy framed by the employer. It has been held by the Hon’ble Supreme Court in the said case that the employer cannot be directed to give appointment in contravention to the Regulations and the instructions which govern appointment on compassionate grounds. The Hon’ble Supreme Court, in the case of State of H.P. v. Jafli Devi[3], has reiterated the law laid down in the aforesaid case of LIC v. Asha Ramchhandra Ambedkar (supra) by observing that the Court should not be over- sympathetic and should not have other considerations. The Court, as per the Hon’ble Supreme Court’s verdict, should not make a departure from the policy while passing any order with regard to compassionate appointment. From the law laid down by the Hon’ble Supreme Court in the above cases as well as in several other cases, it is clear that this Court cannot give any direction to an employer to give compassionate appointment to the dependant of a deceased employee in violation of any policy with regard to compassionate appointment. It is pertinent to note that in the instant case, there is no policy with regard to giving appointment on compassionate ground at all. As stated hereinabove, the said policy has been dispensed with and now it has been decided to make some ex-gratia payment in lieu of giving compassionate appointment because the appellant Corporation is not financially sound and there might be over-staffing which would make the financial condition of the appellant Corporation worse if it is saddled with new appointments even if they are not required. In our considered opinion, even if some appointments are to be made, this Court cannot constrain the appellant employer to give appointment on compassionate ground especially when there is no policy with regard to giving such appointment. The learned Single Judge, in our opinion, has not considered the afore-stated documents, which had been annexed to the affidavit in reply. It appears that the attention of the learned Single Judge was not drawn to the said change of policy. Only on the ground that in a similar case, at an earlier point of time, such compassionate appointment was given, the learned Single Judge followed the judgment delivered in that case. For the reasons stated hereinabove, in our opinion, the appellant Corporation cannot be constrained to give appointment to the present respondents simply because they are dependants of the deceased employees since there was no such policy at the time when a direction for giving such an appointment was given. We are sure that the dependants of the deceased employees must have been given ex-gratia payment as recorded in G.O.Ms.No.36, dated 05.09.2001 and in the letter dated 30.07.2005. If compensation has not been paid so far, the appellant Corporation shall make payment of compensation as per its policy as soon as possible. In the result, the appeal is allowed with no order as to costs. The order dated 23.01.2008 passed by the learned Single Judge in Writ Petition No.24641 of 2006 is quashed and set aside. ANIL R. DAVE, CJ March 14, 2008 GOPALAKRISHNA TAMADA, J svs [1] (1994) 4 SCC 138 [2] (1994) 2 SCC 718 [3] (1997) 5 SCC 301