THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU W.P.No.12938 of 2009 Date of Order: 24-11-2009 Between: A.M.Vijaya .. Petitioner And 1. The Registrar (Administration) High Court of A.P., Hyderabad and another. ..Respondents The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU W.P.No.12938 of 2009 Order: (Per Honourable Sri Justice A.Gopal Reddy) 1. On the death of petitioner’s husband—Sri Madhusudan Rao on 05- 09-2008, while working as Senior Assistant, Senior Civil Judge’s Court, Puttur, the petitioner was given compassionate appointment by the 2nd respondent, appointing her as Attender vide proceedings dated 12-02-2009. Aggrieved by the said order she filed a representation before the 1st respondent on 20-02-2009 with a request to consider her case for appointment as Junior Assistant or Examiner instead of Attender. The same was rejected by the 1st respondent in his proceedings dated 06-04-2009. On rejecting the representation by the 1st respondent the present writ petition has been filed contending that there are clear vacancies of Junior Assistants existing and she is fully qualified and entitled to be considered as Junior Assistant. Similarly one Sri E.Rajamallu died while working as Senior Assistant and his son E.Vinod was appointed as Attender in spite of vacancies available in the cadre of Junior Assistant. On his approaching the 1st respondent, requesting for appointment as Junior Assistant instead of Attender, the same was favourably considered. The petitioner though similarly situated not conferred the said benefit. Hence, a Mandamus may be issued to declare the proceedings vide Order in L.Dis.No.72.A/2009, dated 12-02-2009 and proceedings ROC.No.463-2009-C-6, dated 06-04-2009 of the 2nd and 1st respondents respectively in not appointing the petitioner as Junior Assistant in the 2nd respondent Unit as unjust, arbitrary and to declare that the petitioner is entitled for appointment as Junior Assistant under the control of the 2nd respondent. 2. In response to Rule Nisi the 2nd respondent filed a counter affidavit stating that clarification issued in Memo No.618/Services/A/78.11/GAD, dated 17-12-1979, on which petitioner was relying upon, on point No.5 clarified that “idea is to appoint him/her in the lowest category”. In some departments, Junior Assistant would be the lowest post and there would not be any lower post. But in Judicial Department there are lower cadres of Record Assistants, Field Assistants, Examiners, Copyists and Attenders. The post of Record Assistant is not meant for direct recruitment. In the cadres of Examiners and Field Assistants (which are feeder posts for Junior Assistants), there were no vacancies to be filled by direct recruitment as on the date of application of the petitioner i.e. 20-12-2008. There were vacancies of 4 Junior Assistants and 17 Attenders (excluding the vacancies for which recruitment process was at final stage for 11 Junior Assistants and 48 Attenders). Since the petitioner was not qualified for the post of Copyist, though vacant, which is feeder post for Junior Assistant; and not qualified for the post of Typist, which is equivalent to Junior Assistant, her request for the post of Junior Assistant is not justified. Considering the qualifications and the total vacancies, as there were 65 vacancies of Attenders and small number of vacancies of Junior Assistant, for the sake of administrative necessity, she was appointed as an Attender since there were no vacancies in the other lower cadres. 3. Learned counsel for the petitioner would contend that as per the scheme of compassionate appointment issued in Circular Memo No.60681/Ser.A/2003-1, dated 12-08-2003 appointment under the scheme can be made to the post of Junior Assistant or for any other category of posts whose pay is equal or less than that of Junior Assistant. He further contended that the Government through Circular Memo No. 59011/Ser.G/2004-1, dated 03-06-2004 directed the upper age limit of 45 years shall be reckoned as on the date of submission of application, provided the application for compassionate appointment is made within one year after the death of the employee. Therefore, rejection of the request made by the petitioner to appoint her in the category of Junior Assistant is erroneous and discriminatory and in the case of Rajamallu his request was considered favourably. The petitioner is entitled to the same treatment. 4. It is now fairly well settled that appointments in public services should be made strictly on the basis of open invitation of applications and merit. There are some exceptions to the general rule carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis but not to give a member of such family a post much less a post held by the deceased. 5. The Government of Andhra Pradesh, General Administration (Services-A) Department through Memo No.618/Services-A/78-11, dated 17- 12-1979 clarified the operation of the scheme framed for compassionate appointment made in G.O.Ms.No.687, General Administration (Services-A) Department, dated 03-10-1977. On point No.4 it was clarified that the main approach is to accommodate the person in the same office mostly in posts of Class-IV and LDCs. In the unlikely contingency of a vacancy not being available, he/she will have to wait for some time. The idea is not to retrench any temporary employee and create heart burning to accommodate the dependent of the deceased employee. On point No.5, whether such a candidate can be employed by-passing the existing panel of the candidates, it was clarified that panels are prepared for promotions, as the idea is to appoint him/her in the lowest category. Therefore, by-passing existing panel does not arise. On point No.6, whether the dependent of the deceased employee can be considered for appointment to any post irrespective of the status held by the deceased employee, it was clarified that the dependent of the deceased has to be considered for the categories of posts whose pay is equal to or less than that of LDC and for which he/she is eligible based on qualifications and other conditions as prescribed in the relevant rules. The post held by his/her deceased parent is not at all criterion to be taken into account. 6. The Government through Circular Memo No.60681/Ser.A/2003-1, dated 12-08-2003, on which reliance is placed by the counsel for the petitioner, explains the objective of compassionate appointment scheme and in condition No.3 it was specifically stated appointment under the scheme can be made to the post of Junior Assistant or for any other category of posts whose pay is equal or less than that of Junior Assistant. If this condition is satisfied the appointments can be made for the post such as Police Constable in Police Department, Excise Constable in Excise Department, Helper Grade-I and Grade-II in Forest Department, Leading Fireman/Firemen in Fire Service Department. The maximum age limit and the procedure to be followed as envisaged under condition Nos. VI and VIII. The Rule of reservation as per Rule 22 of Andhra Pradesh State and Subordinate Service Rules shall be followed, namely, the OC vacancy available can be utilised for appointing the SC/ST/BC candidates under the scheme of compassionate appointments to the dependents of deceased Government employees even if there are no vacancies available for these reserved categories as per the roster instead of creating supernumerary posts. The supernumerary post has to be created only in the absence of the vacancy meant for OC category. Similarly in case of OC/SC/ST/OC candidates, if there is no immediate vacancy for that particular community and if OC vacancies are available in the roster after certain reserved category vacancies, such OC vacancies can be utilised, by-passing the immediate SC/ST/BC vacancies for accommodating and appointing OC/SC/ST/BC candidate under the scheme of compassionate appointments. 7. From the above Circular it is clear that it has not given go-bye to the scheme issued in Memo No.618 dated 17-12-1979. 8. The Supreme Court in UMESH KUMAR NAGPAL v. STATE OF HARYANA[1] after elaborately considering the case of the petitioner therein held that the posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned. Unmindful of this legal position, some governments and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased and sometimes even in posts above Classes III and IV. That is legally impermissible. Further, it para-5 it was held that if the dependant of the deceased employee finds it below his dignity to accept the post offered, he is free not to do so. The post is not offered to cater to his status but to see the family through the economic calamity. 9. Keeping the above principle in mind, we have to consider the scheme as clarified in Circular Memo dated 12-08-2003. In the scheme envisaged in Memo No.618, dated 12-12-1979 it was clarified that the idea is to appoint him/her in the lowest category but not in conformity with the qualification of the job seeker on compassionate ground. In Circular Memo dated 12-08-2003, on point No.3 it was clarified that appointment under the scheme can be made to the post of Junior Assistant or any other category of posts whose pay is equal or less than the Junior Assistant. Therefore, the candidate cannot be given appointment higher post than that of Junior Assistant but not necessarily Junior Assistant. It was further clarified that if the condition is satisfied the appointments can be made for the post such as Police Constable, which is the lowest in the Police Department; Excise Constable, which is the lowest category in the Excise Department etc. That means, it is left to the discretion of the appointing authority to which post the dependant of the deceased family can be appointed according to the suitability. 10. Once the petitioner is not eligible to be appointed to the post of Copyist, which is a feeder post for Junior Assistant or Typist, which is equivalent to the post of Junior Assistant, the request of the petitioner has rightly not been considered for the post of Junior Assistant. In the absence of any legally enforceable right conferred under the Scheme to appoint her as Junior Assistant, no Mandamus as such can be issued. 11. The writ petition fails and it is accordingly dismissed. No costs. _________________ A.GOPAL REDDY, J. __________________________ SAMUDRALA GOVINDARAJULU,J. 24-11-2009 Murthy [1] 1994 (2) SLR 677 = (1994) 4 SCC 138