THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.5474 OF 2008 DATED NOVEMBER, 2010 BETWEEN S.Megha Mala … Petitioner And The Government of Andhra Pradesh, Rep. by its Principal Secretary, Higher Education Department, Secretariat, Hyderabad. And Others. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.5474 OF 2008 O R D E R Pursuant to the interim order granted by this Court in Writ Petition No.18631 of 2007, the Commissioner of Intermediate Education, Andhra Pradesh, Hyderabad, considered the request of the petitioner for absorption in another College as was done in the case of the other employees of Chanakya Junior College, Hyderabad. By order dated 01.12.2007, the Commissioner rejected the petitioner’s case. He referred therein to the earlier rejection of the petitioner’s claim for compassionate appointment by his predecessor under Memo dated 01.08.2007. Both the proceedings are assailed in the present writ petition. The petitioner seeks a further direction to the respondents to absorb her as a Contingent/Class-IV employee in any other Junior College as was done in the case of other similarly situated staff of Chanakya Junior College, Hyderabad, along with consequential benefits. The petitioner is the widow of one S.Mallesham who was appointed as a contingent employee in Chanakya Junior College, Hyderabad, on 04.09.1982. Admittedly, two other contingent employees, Ramulu and V.Srinivasa Rao, were also engaged by the said College at that time. Chanakya Junior College, Hyderabad, was admitted to grant-in-aid under G.O.Ms.No.378, Education (C.E.III-2) Department, dated 20.10.1994. Various teaching and non-teaching posts were sanctioned aid thereunder. The annexure to the said G.O. demonstrates that three posts of contingent employees were also admitted to aid entitling the incumbents therein to minimum pay scale. The service book of S.Mallesham reflects that he was admitted to grant-in-aid as a contingent employee on 22.12.1994 pursuant to the above G.O. While so, S.Mallesham died in harness on 05.04.1996. As per G.O.Ms.No.281, Education (J) Department, dated 25.05.1985, the scheme of appointment of a spouse/son/daughter of a deceased employee while in harness on compassionate grounds, giving due exemption and relaxation, was extended to teaching and non-teaching staff of aided Colleges in the State. The petitioner, being the widow of an aided contingent employee, was accordingly appointed on compassionate grounds as a contingent employee on 08.04.1996. There is no dispute that she continued in service till the closure of Chanakya Junior College, Hyderabad, more than a decade later. The salary certificates issued by the said College vouch for this fact. Her initial consolidated salary of Rs.600/- per month grew from stage to stage and she was being paid Rs.2500/- per month at the end. It is her grievance that upon the closure of the College all the teaching and non-teaching staff working in the said College were absorbed by transferring them to other Colleges but she alone was subjected to discrimination and was not accommodated elsewhere. She was 26 years of age when appointed in the said College and having crossed the age of 35 years when the College closed down, she complained of dearth of employment opportunities as she was age barred. Aggrieved by the inaction on the part of the authorities in acting upon her request for being accommodated on par with the other employees of the College, she approached this Court by way of Writ Petition No.18631 of 2007 resulting in the interim order aforestated. Claiming ignorance of the earlier rejection order dated 01.08.2007 and being aggrieved by the fresh rejection under order dated 01.12.2007, she is before this Court once again. Sri Sadu Rajeshwar Reddy, learned counsel for the petitioner, submitted that Ramulu and V.Srinivasa Rao, the other two contingent employees, engaged in Chanakya Junior College, Hyderabad, at the same time as the petitioner’s husband were absorbed in other Colleges but the same treatment was not extended to the petitioner though she was appointed on compassionate grounds in the vacancy caused by her husband’s death. In the first counter affidavit filed on behalf of the respondents, the Deputy Director of Intermediate Education, Andhra Pradesh, Hyderabad, disputed the validity of the petitioner’s compassionate appointment in the year 1996 on the ground that the same was done by the College without following Government rules. He contended that the scheme of compassionate appointment was not applicable to contingent employees. He disputed the petitioner’s right to seek redeployment in another College as was done in the case of other aided staff of Chanakya Junior College, Hyderabad, as she was appointed as an unaided contingent employee. He further stated that she was not appointed against an aided post and that only aided staff of the College were redeployed to the needy Colleges along with their posts. As the above counter was unresponsive to the petitioner’s allegation of discrimination when compared to the other contingent employees of Chanakya Junior College, Hyderabad, leave was granted to file a better affidavit. Thereupon, an additional counter affidavit was filed on behalf of the respondents by the Director of Intermediate Education, Andhra Pradesh, Hyderabad. Therein, he stated that the petitioner’s husband was sanctioned the minimum pay scale without converting his services into Class-IV cadre which, according to him, was highly irregular. In so far as the cases of Ramulu and V.Srinivasa Rao, the other contingent employees, are concerned he stated that they were redeployed to other Colleges and absorbed, pursuant to the orders of the Government in G.O.Ms.No.9, Finance and Planning (Fin.Wing PRC-VI) Department, dated 08.01.1981. He asserted that the petitioner did not stand on par with the other two contingent employees in the light of the above G.O. and therefore, she could not claim parity. He admitted that V.Srinivasa Rao was converted into last grade service in terms of G.O.Ms.No.9 dated 08.01.1981 and was rendering service at the Government Junior College, Penumaka, Guntur District, on redeployment basis and Ramulu was redeployed to MAM Government Model Junior College for Girls (Urdu Medium), Nampally, Hyderabad, where he was continuing as a contingent employee. Perusal of the Memo dated 01.08.2007 issued by the Commissioner of Intermediate Education, Andhra Pradesh, Hyderabad, reflects rejection of the petitioner’s request for compassionate appointment/admission to grand-in-aid on the ground that her late husband was not converted as a Class-IV employee and his services were not regularized in the last grade service. The representation of the petitioner which evoked this response is not placed before the Court. Be that as it may, the Memo dated 01.08.2007 defies comprehension. There is no dispute with the fact that three posts of contingent employees in Chanakya Junior College, Hyderabad, were admitted to grant-in-aid under G.O.Ms.No.378 dated 20.10.1994. The petitioner’s husband was admitted to grant-in-aid in the year 1994 itself as a contingent employee. There is no quarrel about this also. The petitioner’s compassionate appointment in the said College in the year 1996 upon the death of her husband finds sanction in G.O.Ms.No.281 dated 25.05.1985. She also rendered service for over a decade upon such appointment. These are facts established by the record. In such circumstances, it is indeed strange and inexplicable as to why the Commissioner of Intermediate Education again considered her case for compassionate appointment. The reason underlying the rejection embodied in the Memo dated 01.08.2007 that the petitioner’s husband was not regularized in service is also factually incorrect as he was an aided employee at the time of his death. Relevant to note, the additional counter affidavit filed by the Director of Intermediate Education, Andhra Pradesh, Hyderabad, reflects that Ramulu, one of the other contingent employees appointed along with the petitioner’s husband, who was also admitted to grant-in- aid, still continues as a contingent employee and has not been absorbed in the last grade service. Notwithstanding the same, he has been given the benefit of redeployment upon the closure of Chanakya Junior College, Hyderabad. The Memo dated 01.08.2007 is therefore bereft of application of mind and is a contradiction in terms. In so far as the subsequent rejection embodied in the proceedings dated 01.12.2007 is concerned, the Commissioner of Intermediate Education completely lost sight of the fact that the interim order passed by this Court in the earlier writ petition was grounded on the alleged discrimination between the petitioner and the other employees of Chanakya Junior College, Hyderabad. The Commissioner only concentrated upon denying the petitioner’s claim in isolation and once again reiterated the wrong reasoning reflected in the earlier Memo dated 01.08.2007. As the petitioner’s husband was admitted to grant-in-aid in the post of a contingent employee sanctioned by G.O.Ms.No.378 dated 20.10.1994 which mandated the payment of the minimum pay scale, the stand of the authorities that he was not entitled to be placed on such minimum scale cannot be countenanced. The observation of the Commissioner that the petitioner’s husband was not a regular employee and was appointed purely on part-time basis is also factually incorrect. The further statement that he expired while working as a part-time employee in unaided service is contrary to the record and reflects scathing application of mind by the Commissioner. Based on this fallacious understanding of the facts and the record, the further observation of the Commissioner that the petitioner was not entitled to compassionate appointment as her husband was a part-time employee is equally erroneous. The Commissioner was obviously ignorant of the orders of the Government in G.O.Ms.No.281 dated 25.05.1985 which squarely covered and sanctioned the compassionate appointment of the petitioner. The predecessor having committed a blunder on facts and in law, the succeeding Commissioner once again echoed the same errors in his proceedings dated 01.12.2007 and concluded that there was no provision to absorb the services of the petitioner in any other College keeping in view the Government orders and hence, the request of the petitioner to absorb her in other Junior Colleges is not feasible of compliance. Pertinent to note, the cases of the other two contingent employees of Chanakya Junior College, Hyderabad, which were treated differently were not even adverted to by the Commissioner. In the additional counter affidavit, this discrimination is sought to be explained by placing reliance on G.O.Ms.No.9 dated 08.01.1981. A copy of the said G.O. is placed before the Court and reflects that the Government, as a policy, decided thereunder to convert into last grade service Government posts, the full time contingent posts which had been created under the orders of the competent authority and which had been in existence for a period of five years or more as on 01.04.1981. The personnel who held these posts continuously for five years or more were directed to be absorbed giving due relaxation of the relevant service rules. A plain reading of the aforestated G.O. reflects that it has application only to posts which had been in existence for five years or more as on 01.04.1981. The petitioner’s husband and the other two contingent employees, Ramulu and V.Srinivasa Rao, entered the service of Chanakya Junior College, Hyderabad, in the year 1982. There is no evidence that the posts held by them as contingent employees were in existence prior thereto. Therefore, on the face of it, the said G.O. had no application to the cases of Ramulu and V.Srinivasa Rao. Further, the additional counter affidavit reflects that Ramulu is still continuing as a contingent employee even after redeployment. This fact negates the claim of the Intermediate Education Department that he was given the benefit of G.O.Ms.No.9 dated 08.01.1981. It appears that the Department is clutching at straws to justify its discrimination between the petitioner and the other contingent employees of Chanakya Junior College, Hyderabad. It is relevant to note that all along the stand of the Department to deny the petitioner’s claim was that her husband was not regularized in service as a Class-IV employee and therefore she was not entitled to any benefit arising out of the service rendered by him. That being so, there is no explanation as to how and why the other two contingent employees who were also admitted to grant-in-aid on par with the petitioner’s husband were given beneficial treatment when they stood identically situated with him and were only contingent employees too. It is admitted that it is only after redeployment that V.Srinivasa Rao was absorbed in last grade service under G.O.Ms.No.9 dated 08.01.1981. Further, Ramulu still continues to be a contingent employee. This clearly manifests the contradictory stands being adopted by the Department in dealing with these cases. This Court is conscious of the fact that neither Ramulu nor V.Srinivasa Rao are before it. However, the aforestated examination of their cases is necessitated by the allegation of the petitioner that her case, being alike, was treated differently from theirs. The observations m a d e supra are therefore limited to examining this charge of discrimination and are not intended to be used for initiating any adverse action against either Ramulu or V.Srinivasa Rao. As stated supra, the petitioner was entitled to compassionate appointment in the light of the Government’s policy reflected in G.O.Ms.No.281 dated 25.05.1985. Thereunder, she was also entitled to be considered for regular appointment, if she satisfied the other conditions of recruitment such as age and educational qualifications. Ignoring this aspect, it appears that she was continued as a contingent employee in Chanakya Junior College, Hyderabad, until its closure. Her averment in the affidavit that she rendered more than 10 years of service in the said College remains unrebutted. The facts aforestated therefore establish that the understanding of the authorities that the petitioner’s husband was not entitled to be paid the minimum time scale and that he was rendering service against an unaided post is factually incorrect and opposed to the record. That apart, the favourable treatment of the other two contingent employees of Chanakya Junior College, Hyderabad, clearly demonstrates discrimination in so far as the petitioner is concerned. The order dated 01.08.2007 being misconceived, the subsequent proceedings dated 01.12.2007, are no better. The matter may be viewed from yet another angle. The petitioner rendered 10 years of service in Chanakya Junior College, Hyderabad, without protection of Court others. Her compassionate appointment against an aided vacancy was in accordance with the Government’s policy embodied in G.O.Ms.No.281 dated 25.05.1985 and she was entitled to be regularized in accordance therewith. In that view of the matter, she would also be entitled to regularization in service as per the observations of the Supreme Court in SECRETARY, STATE OF KARNATAKA V/s. UMA DEVI[1]. In its subsequent judgment in STATE OF KARNATAKA V/s. L.KESAR[2], the Supreme Court while dealing with this aspect observed that daily wage/casual/ad-hoc employees who fulfilled the requirements mentioned in para 53 of UMA DEVI would be entitled to regularization in service as a one-time measure. The facts of the case on hand demonstrate that the petitioner more than fulfilled the said requirements. She would therefore be entitled to the protection afforded by the aforestated judgments of the Supreme Court and be placed on par with V.Srinivasa Rao. The impugned proceedings dated 01.08.2007 and 01.12.2007 are accordingly set aside. There shall be a direction to respondents 1 to 3 to appoint the petitioner as a Class-IV employee in any other needy Junior College as was done in the case of V.Srinivasa Rao granting due relaxation of the rules, if required. This exercise shall be completed expeditiously and in any event not later than three months from the date of receipt of a copy of this order. The writ petition is allowed but in the circumstances, without any order as to costs. ---------------------------- SANJAY KUMAR, J. _______ NOVEMBER, 2010. PGS (P.D) THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.5474 OF 2008 NOVE=MBER, 2010 [1] (2006) 4 SCC 1 [2] 2010(1) DECISIONS TODAY (SC) 358