THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION No.5701 of 2006 August 29, 2011 Between: Municipal Corporation of Guntur, represented by its Commissioner ... Petitioner And Kallevarapu Suneetha, Unemployee, C/o.K.Raju And others …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION No.5701 of 2006 ORDER: (per Hon’ble Sri Justice V.V.S.Rao) Municipal Corporation, Guntur filed the instant writ petition being aggrieved by the order dated 01.7.2005 in O.A.No.5717 of 2001 passed by the Hon’ble Chairman, Andhra Pradesh Administrative Tribunal directing the Corporation to appoint the first respondent (hereafter called, the applicant) in any post to which she will be entitled to, depending upon her academic and other qualifications required for such a post, and report compliance to the Registry of the Tribunal. The applicant is daughter of one K.Mastan Rao. He was working as NMR water worker in the Corporation. He died in December, 1991. The applicant’s case is that immediately thereafter her elder brother, Bapuji made application on 13.11.1992 seeking compassionate appointment in vain. A month thereafter, Bapuji gave another representation requesting the Commissioner of the Corporation that the applicant may be appointed and that he has no objection because he got his means of living. This was followed by another brother, Ananda Rao addressing the Commissioner on 27.12.1992 on similar lines stating that he has three children and he has means of earning livelihood, that he is living separately from his mother and sister and that he had no objection for appointment of applicant on compassionate grounds. The petitioner also made another application on 14.12.1992 seeking compassionate appointment. In this, she stated that she is aged 18 years; her two brothers are married and living separately; they are eking out livelihood as daily wage coolies and that she and her mother are finding it difficult to make out livelihood. A Member of Parliament also addressed letter to the Commissioner on 24.1.2000. In response thereto, the Commissioner sent communication being L.Dis.No.5483/2k/E1, dated 03.7.2000 informing that her “claim for compassionate appointment was negatived since the claim lapsed by more than eight years”. The applicant approached the Tribunal and filed the O.A. seeking appointment in the Municipal Corporation. The Municipal Commissioner opposed the application not only on the ground that the claim is belated but also on the ground that the applicant’s elder brother, Bapuji is earning member and taking care of the welfare of the family; as per the family members certificate he is unmarried male member having his own source of income; the applicant was aged 16 years 8 months by the date of death of her father and, therefore, she is not eligible for compassionate appointment. The learned Tribunal while allowing the O.A. and issuing the direction as noticed supra, came to the conclusion that the applicant has been pursuing her claim without any culpable delay and that even if her brother is earning, there is no material to show that he is managing the family consisting of several members. The Standing Counsel for the Municipal Corporation contends that the application made for compassionate appointment is belated and that when both the brothers are earning members, no appointment can be made on additional grounds. He would rely on Union of India v Draupadi Behara[1], State of J&K v Sajad Ahmed Mir[2] and SBI v Jaspal Kaur[3]. The Counsel for the applicant/first respondent submits that the claim of the applicant was denied only on the ground that it is belated. In the counter affidavit, however, different pleas were taken without any basis. The plea that both the brothers are earning and the plea that the elder brother, Bapuji is not married are not supported by any material based on enquiry and on mere surmises, such defence was raised. When the claim was not considered on the ground that the applicant was minor at the time of death of her father, the same is an after- thought and cannot be countenanced by the Court. He would also submit that the Corporation is guilty of laches on many counts, namely, there was delay in filing the writ petition and there was delay in paying the amount directed to be paid by the Standing Counsel as costs and, therefore, the Corporation cannot be heard to contend that there is delay on the part of the applicant. He placed reliance on Govind Prakash Verma v LIC of India[4], Syed Khadim Hussain v State of Bihar[5] and Mohan Mahto v Central Coal Field Ltd[6]. A perusal of the counter affidavit would show that the Corporation denied compassionate appointment to the applicant mainly on three grounds. These are: (i) the applicant was minor being 16 years 8 months at the time of death of her father; (ii) her elder brother, Bapuji was unmarried and he was earning member; and (iii) Bapuji was looking after the welfare of the family. Curiously the order impugned before the Tribunal does not even make a reference to these grounds except informing the applicant that her claim for compassionate appointment is negatived since the claim is lapsed by more than eight years. The claim would not lapse merely because of delay in making representation or merely because the claimant is minor seeking appointment under the relevant scheme. The Government of Andhra Pradesh formulated compassionate appointment scheme vide their G.O.Ms.No.1005, Employment and Social Welfare, dated 27.12.1974 providing relief to the family of a Government servant who dies in harness, without medium of employment exchange, subject to conditions among other things that there is no other earning member in the family. The implementation of the scheme gave rise to many doubts and the Government went on issuing clarifications, after considering representations made by the members of the families of the deceased employees. This was lead to issue of orders in G.O.Ms. No.687, General Administration Department, dated 03.10.1977 in supersession of the earlier orders. This G.O. specified the procedure for making appointments of the dependents of the deceased Government employees to such category of posts for which they are eligible. This also gave rise to certain points necessitating the issue of Memo No.618/Ser-A/78-11, G.A.D., (Ser-A), dated 17.12.1979. The said memo deals with a clarification with reference to thirteen questions. We are concerned with question Nos.2 and 13 only. The questions and clarifications are given below. Q.No.2 When the elder earning member is separated from the family whether the younger brother can be appointed or not? Clarification: It should not matter if son has himself separated from the family is already employed. If the family is without a bread winner, a son/daughter out of the remaining be given a job. Q.No.13 Whether a minor dependent child of a deceased Government employee can be considered for appointment? Clarification: A minor dependent of the employee who died in harness should not be considered for providing employment under this scheme, as there cannot be any contractual obligation between the Govt. and the employee who is a minor. The intention of the Govt. being to see that the family is not exposed to destitution the relief by taking somebody for employment, should be immediate. Therefore, a spouse or a child of the deceased Govt. servant should immediately apply for this relief. However, in case where due to the fact that child is a minor or he has not attained the educational qualifications, it is delayed it should be possible for the relief within a reasonable time, which may be two years from the date of demise of the Govt. servant. In such a case, the fact should be communicated to the Govt. The plain reading of the above would show that the mere fact that there is an earning member of the family like a son itself is not a bar for considering the claim of a son/daughter for appointment. Secondly, if minor dependent seeks employment within a reasonable time, the appointment is not prohibited. Though the clarification illustratively mentions that application being made within two years from the date of death by a minor is reasonable, the same is not an inflexible rule. In appropriate cases the competent authority can consider the applications of the dependents who are minors at the time of death of Government employee. The question, therefore, is whether the Municipal Corporation was justified in rejecting the representation of the applicant on the ground that it is belated one. The scheme of the Government providing for compassionate appointments of the dependents of a deceased Government employee if he dies in harness must be construed keeping in view its object and purpose. The compassionate appointment cannot be refused on the ground that any member of the family received the amounts admissible under the rules. If the retrial benefits are received by the family, it is not a bar for compassionate appointment (Govind Prakash Verma). In the matter of compassionate appointment, the authorities should extend service in an effective manner so that eligible candidates may avail the opportunity (Syed Khadim Hussain). A statutory corporation like the Municipal body “is a State” within the meaning of Article 12 of the Constitution of India. It must not only act fairly but also reasonably and bona fide (Mohan Mahto). If there is delay on the part of the department itself in considering the applications, rejection of the claim for compassionate appointment on the ground that it is belated one cannot be accepted. We will consider the merits of the scheme of the applicant in the light of these principles. The Standing Counsel vehemently contends that the representations made by the applicant on 14.12.1992 or those made by her brothers on 13.11.1992, 25.12.1992 and 27.12.1992 are not found in the files of the Corporation. According to him, when the applicant made representation in 2000, the same was considered and the order impugned before the Tribunal was passed rejecting the claim. A perusal of the same would show that except the application of the applicant in the reference entered the same is conspicuous by its absence. It is not clear with reference to which the application of the applicant the order impugned was passed. Therefore the plea cannot be accepted. Further, the counter affidavit appears to be based on the applications made by the applicant’s brother. When the counter affidavit directly or indirectly refers to representations made by the brothers, it leads to inference that the Corporation received all the representations within reasonable time of six months after the death of Mastan Rao and the delay is only on the part of the Corporation. The plea of the Counsel that the brothers were gainfully employed cannot be accepted. In the representation made by the applicant way back on 14.12.1992, she mentioned that her two brothers are living separately and earning their livelihood by working as daily wage coolies. As observed by the Supreme Court in Govind Prakash Verma a person casually getting work does not amount to gainfully employed to bar the claim for compassionate appointment. No material is placed before us to show that both the brothers procured some permanent employment and they are taking care of the mother. In the absence of any such plea, the contention of the Corporation cannot be accepted. In Sajad Ahmed Mir the claim for compassionate appointment in 1996 was rejected and it was challenged in 1999. By the time the matter was decided by the Division Bench of the High Court of Jammu & Kashmir fifteen years had lapsed from the date of the death of the father of the applicant. Therefore, the Supreme Court observed that it is relevant and material fact which cannot be ignored while considering the case of compassionate appointment. I n Jaspal Kaur the scheme of compassionate appointment was formulated on 04.8.2005 whereas the respondent therein applied on 05.2.2000. The Supreme Court, therefore, allowed the appeal by the Bank observing that on the basis of the scheme that came into force after the dispute arising in 2000 cannot be decided. Both the cases cited by the Standing Counsel for the Municipal Corporation, therefore, do not have any bearing on the facts of this case. The learned Tribunal issued a direction to appoint and report compliance to the Registry of the Tribunal. This is certainly an error which needs correction in judicial review. It is well settled that in the matters of appointment, the executive has the final say. By issuing a direction straight away to make an appointment would fetter the discretion of appointing authority and selecting authority. In Draupadi Behara, it was laid down that “no direction could have been given by the High Court for appointment as such within the time limit.” Therefore, though the Tribunal or this Court can issue a direction in the first instance to the respondents to consider the case of the applicant a positive direction could not have been issued. This legal position is not seriously disputed by the Counsel for the applicant. The Commissioner of the Municipal Corporation shall now consider the case of the applicant conducting such enquiry as it deems fit. The exercise shall be completed within a period of three months from the date of receipt of a copy of this order. The writ petition, with the above observations and direction, is, accordingly, disposed of. There shall be no order as to costs. ________________ (V.V.S. RAO, J) ___________________ (K.G.SHANKAR, J) August 29, 2011 YS [1] (2005) 2 SCC 342 [2] (2006) 5 SCC 766 [3] (2007) 9 SCC 571 [4] (2005) 10 SCC 289 [5] (2006) 9 SCC 695 [6] (2007) 8 SCC 549