IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY THIRD DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE C.V.RAMULU WRIT PETITION NO : 15820 of 2008 Between: 1 The Superintendent of Post Offices, Anantapur Division, Ananthapur. 2 The Postmaster General, Kurnool Region, Kurnool 3 The Postmaster Georgepet Post Office, Anantapur. 4 The Chief Postmaster General, A.P.Circle, Abids Hyderabad. ..... PETITIONERS AND R.S.Madanlal S/o. R.S.Sankarlal(Late ) Ananthapur. .....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 an order or direction more particularly in the nature of Writ of Certiorari, call for the records with regard to order dtd. 31.10.2007 in O.A.No. 81 of 2005 of the Hon'ble Central Administrative Tribunal, Hyderabad Bench, Hyderabad and quash the same as illegal, arbitrary, contrary to law and unconstitutional. Counsel for the Petitioners: MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) Counsel for the Respondent: MR.GOPALA RAO GANDRAKOTA The court made the following order: THE HON’BLE MR JUSTICE GHULAM MOHAMMED AND THE HON’BLE MR JUSTICE C.V.RAMULU Writ Petition No.15820 of 2008 ORDER:(per Hon’ble Sri Justice Ghulam Mohammed) This writ petition is filed questioning the order, dated 31.01.2007, passed by the Central Administrative Tribunal, Hyderabad Bench, Hyderabad in O.A.No.81 of 2005. The respondent herein applied for compassionate appointment on 25.03.2001 on invalid retirement of his father on 01.08.2000 and subsequently his father died on 21.11.2000. The deceased left his wife, two sons and two daughters. The case of the respondent was recommended for appointment in the postman cadre in the Circle Relaxation Committee (for short ‘CRC’) meeting held on 13/15.03.2002 and he was appointed as such on 27.06.2002 at Georgepet Post Office, Anantapur Division. However, subsequently it was informed to the respondent that the Special CRC convened on 12.10.2004 for selection of already approved candidates in the meetings of CRCs held on 13/15.03.2002 and 16.05.2002 had not recommended his case for compassionate appointment after comparative study and hence, his appointment is liable to be terminated. Assailing the proceedings, dated 17.01.2005, of the second petitioner and the consequential proceedings, dated 24.01.2005, of the first petitioner seeking to terminate the services of the respondent, the aforementioned O.A., was filed. The petitioners- respondents resisted the O.A., by filing a counter affidavit. The Tribunal, after careful consideration of the matter, by its common order, dated 31.10.2007, allowed a batch of O.As., filed by similarly placed persons holding that the petitioners herein are not justified in issuing the notices of termination/order of notice to delete the names of the applicants therein from the list of approved candidates and that the applicants therein are entitled to continue in service on the strength of the appointment given to them, and accordingly quashed and set aside the notices of termination. Assailing the order of the Tribunal in respect of O.A.No.81 of 2005, the petitioners are before this Court. Heard Sri A.Rajashekar Reddy, Assistant Solicitor General of India, appearing for the petitioners and Sri Gopala Rao Gandrakota appearing for the respondent. The main contention of the learned counsel for the petitioners is that the CRC erroneously taking into consideration 5% of the total vacancies, recommended the respondent and others for appointment, that as per Circular Memo, dated 16.05.2001, only vacancies cleared by the Screening Committee should be filled up and not the total vacancies and the vacancies available for compassionate appointment would be 5% of the vacancies cleared by the Screening Committee. But, a Special Screening Committee in its meeting held on 12.10.2004, on examining the cases of all such candidates already selected, has not recommended the cases of the respondent and others, as the appointments were limited to 5% of the approved vacancies. The learned counsel appearing for the respondent, on the other hand, submitted that since the respondent was appointed against a vacancy arising in the year 2000, as per the scheme of compassionate appointment-1998, the instructions issued in 2001 have no application. In any case, the learned counsel argues that in view of the memo, dated 14.06.2006, direct recruitment vacancies have to be arrived at only after deducting the vacancies required for compassionate appointments. Therefore, the notice is liable to the set aside. There is no dispute that all the selected candidates, including the respondent herein, were considered for appointment on compassionate grounds by a duly constituted CRC. It is also not in dispute that the cases of the respondent and others were considered to the extent of 5% of the total vacancies occurred during the years 2000, 2001 and 2002, and they were duly recommended by the CRC for appointment on compassionate grounds. The Government of India, Ministry of Personnel, Public Grievances and Pension (Department of Personnel and Training), New Delhi, dated 09.10.1998, issued revised consolidated instructions under the scheme for compassionate appointment under the Central Government superceding the existing instructions on the subject. Para-7(b) of the said scheme, which deals with compassionate appointment, says that the compassionate appointments can be made upto a maximum of 5% of vacancies falling under direct recruitment quota in any Group ‘C’ or ‘D’ post. The appointing authority may hold back upto 5% of vacancies in the aforesaid categories to be filled by direct recruitment through Staff Selection Committee, or otherwise so as to fill such vacancies by appointment on compassionate grounds. Subsequently, the Government issued memo, dated 16.05.2001, regarding reduction of vacancies meant for direct recruitment. The essence of the said circular is that direct recruitment does not in any case exceed 1% of the total sanctioned strength of the department and it shall be limited to 1/3rd of the direct recruitment vacancies arising in a year subject to a further ceiling that the same shall not exceed 1% of the total sanctioned strength of the department. The Government of India has also issued memorandum, dated 04.07.2002, wherein it was clarified that 5% quota for compassionate appointment is to be worked out with reference to the direct recruitment vacancies in each recruitment year finally approved for filling up by the prescribed Screening Committee under the optimization policy of the Government contained in this Department’s O.M.No.2/8/2001-PIC dated 16.005.2001. The Tribunal on a consideration of the scheme of revised compassionate appointment-1998, memos, dated 16.05.2001 and 04.07.2002, found that there is no whisper about the “approved vacancies” in the said memos. While appreciating the said memos, the Tribunal observed thus:- “A careful reading of the instructions dated 14.06.2006 would show that the matter was reviewed and on careful examination it was found that the operation of the instructions of optimization of direct recruitment vacancies resulted in continuous reduction in the number of vacancies for direct recruitment consequently resulting in availability of very few vacancies or no vacancies under 5% quota for compassionate appointment. Therefore, it was decided that while the existing ceiling of 5% for compassionate appointment may not be modified but the 5% ceiling may be calculated on the basis of total direct recruitment vacancies for Groups ‘C’ and ‘D’ posts (excluding technical posts) that have arisen in the year. Therefore, it has been proved and established that the instructions dated 16.05.2001 in so far as it relates to compassionate appointment frustrate the very object of the scheme for compassionate appointment. The scheme for compassionate appointment is a rehabilitation scheme. Therefore, the subsequent instructions, the application/operation of which frustrates the very object of the scheme or make the scheme not practically applicable cannot be said to be valid instruction(s). Therefore, even if there had been any instructions issued amending the scheme of 1998 pursuant to the instructions of 2001 to consider the cases for compassionate appointment to the extent of 5% of the approved vacancies cleared by the screening committee (which could not be produced by the respondents before us), any appointment made without following such instructions cannot be said to be irregular appointment. Moreover, the administration should be more particular while considering the cases of compassionate appointment so that the persons appointed will not be terminated for any irregularity in the appointment. In no case, the family which has been provided with compassionate appointment to enable the family to meet with the indigent conditions caused due to the death of the employee would be put to distress again due to the fault of the administration. We may, at the cost of repetition, mention that (i) when the very instruction dated 16.05.2001 in so far as it relates to compassionate appointment has been proved to be frustrating the very object of the scheme which is a rehabilitation scheme, even if any appointment is made without following such instruction, cannot or does not make the appointment irregular (ii) The applicants who have been given appointments against 2000 vacancies following the instructions/scheme of 1998, their appointments do not, in any way, come within the purview of the DOPT instructions of 2001. Therefore, their appointments can in no way be terminated by applying the instructions of 2001 (iii) All the applicants who were considered and approved and were given compassionate appointments in 2002 cannot be terminated after they have worked for a considerable period. More particularly, when the scheme is a rehabilitation scheme and the 2001 instructions in so far it relates to compassionate appointments frustrates the very object of the scheme and make the scheme practically inapplicable as mentioned vide instructions in regard to the compassionate appointment, the said instructions cannot be said to be valid.” We do not find any error in the above reasoning adopted by the Tribunal. The respondent and others who were given appointments against vacancies arising in 2000 ignoring the scheme-1998 cannot be removed from service, pursuant to the instructions issued in 2001. Therefore, the candidates who were considered and given compassionate appointment in 2002 cannot be removed from service. At this stage, it is apt to note that the Government taking into consideration the difficulties being faced by various Ministries in implementing the scheme for compassionate appointment issued certain instructions in memo dated, 14.06.2006. Para-3 of the said instructions reads thus. “On a demand raised by Staff Side in the Standing Committee of the National Council (JCM) for review of the compassionate appointment policy, the matter has been carefully examined and taking into account the fact that the reduction in the number of vacancies for Groups ‘C’ and ‘D’ posts (excluding technical posts) that have arisen in the year. Total vacancies available for making direct recruitment would be calculated by deducting the vacancies to be filled on the basis of compassionate appointment from the vacancies available for direct recruitment in terms of existing orders on optimization.” From the above, it is clear that the vacancies meant for direct recruitment shall have to be calculated only after earmarking the vacancies required for compassionate appointment. In another words, the direct recruitment vacancies shall have to be arrived at only after deducting the vacancies required for compassionate appointment under the scheme. The Tribunal while allowing the O.As., has also taken into consideration, the aforementioned instructions issued by the Government of India. Admittedly, the notice of termination was issued on 24.01.2005 i.e., prior to the instructions of the Government of India, dated 14.06.2006. Therefore, the authorities have to re-consider the matter in the light of the instructions issued in memo, dated 14.06.2006. The Tribunal on a careful consideration of the relevant material on record, has rightly come to the conclusion that the persons appointed in the year 2002 cannot be terminated from service. We find no error in the order of the Tribunal warranting interference by this Court in exercise of power of judicial review under Article 226 of the Constitution of India. The writ petition fails and the same is accordingly dismissed, at the admission stage. No costs. _________________________ GHULAM MOHAMMED, J _______________ C.V.RAMULU, J Dt.23.07.2008 VGB