HON’BLE THE ACTING CHIEF JUSTICE B. PRAKASH RAO AND HON’BLE SRI JUSTICE K.C. BHANU W.A.No. 258 OF 2002 Date: 19-11-2010 Between: Sk. Khader Basha ………. Petitioner and The Managing Director, APSRTC, Musheerabad, Hyderabad ……… Respondent HON’BLE THE ACTING CHIEF JUSTICE B. PRAKASH RAO AND HON’BLE SRI JUSTICE K.C. BHANU W.A.No. 258 OF 2002 JUDGMENT: (Per HACJ) The appellant is the unsuccessful petitioner in the writ filed by him in W.P.No.25947 of 1999, wherein he sought for a Mandamus directing the respondent-corporation to absorb him as a Cleaner, as per the judgment rendered in W.P.No.29241 of 1995, dated 28-06-1996 by declaring the inaction as being illegal and arbitrary. The learned single Judge did not find favour with the request sought by the petitioner-appellant and dismissed the writ petition as per the orders, dated 07-06-2001. Hence, the Appeal. 2. Heard Sri V. Mallik, learned counsel appearing for the petitioner-appellant, and Sri K. Sreenivasa Rao, learned Standing Counsel appearing on behalf of the respondent-corporation. 3. Briefly, the facts, which required to be considered in the present case, are that the petitioner-appellant claims entitlement for appointment as a member of the family on compassionate grounds and also otherwise in terms of the scheme in the circulars issued by the respondent-corporation for providing employment to the children of the deceased employees or ex-employees. The case of the petitioner-appellant is that he is entitled to be absorbed as a Cleaner in the in the respondent-corporation in the Prakasam region and in view of the circulars of the respondent-corporation, his claim is perfectly justified. Earlier, the mother of the petitioner-appellant filed a writ in W.P.No.29241 of 1995 for the selfsame relief and it was disposed of by this Court as per the orders, dated 28-06-1996 with a direction to consider the case of the petitioner-appellant for appointment on compassionate grounds as per the priority laid down in Circular No.112/1987, dated 05-10-1987 and also other circulars, which have been issued from time to time. However, according to the petitioner-appellant, though his case has come up for consideration as per the said circulars, which provides for reservation of 30% of the posts in the said category of Cleaner for the children of ex-employees, it was rejected as per the impugned orders, dated 06-11-1996 mainly on the ground that he stands at serial No.71 out of 80 pending applications for the post of Cleaner. It was also stated in the said order that his case will be considered for the post of Cleaner as and when his turn comes up in the order of preference as per the said circular. Hence, the grievance narrowed down to seek such employment and also implementation of the direction which has been issued by this Court earlier in W.P.No.29241 of 1995, dated 28-06-1996. 4. The learned single Judge of this Court, by taking into consideration the submissions made on behalf of the petitioner- appellant, and also the objections raised on behalf of the respondent-corporation, found that in similar circumstances, a Division Bench of this Court in W.P.No.15613 of 1996 and batch, which is reported in SHAIK AHMAD ALI SHAH v. DIVL. MANAGER, APSRTC [1], held that such scheme is discriminatory and constitutionally invalid. Hence, the learned single Judge held that the petitioner-appellant cannot lay hands for such relief and accordingly, dismissed the writ petition. 5. The learned counsel appearing on behalf of the petitioner-appellant tried to submit that the learned single Judge has not properly appreciated the principles laid down in the aforesaid decision of the Division Bench and that the directions given earlier in terms of the said circular, dated 05-10-1987 cannot be given a go bye. Even otherwise, the learned single Judge has not adhered to the observations made in the impugned order, dated 06-11-1996 which states that the case of the petitioner-appellant would be considered in the future vacancy. Further, the learned counsel submitted that whenever a decision has been given with a direction between inter parties, the same cannot be nullified by way of any subsequent decision, which does not arise out of any appeal or review, which is binding inter parties. Therefore, the petitioner- appellant is entitled to the relief as sought for and necessarily the earlier orders need to be implemented without any demark on the part of the respondent-corporation. It is also pointed out that even subsequently, the respondent-corporation resolved to fill up 20 posts by issuing notification, dated 03-06-1997 without reference to the list as mentioned in the impugned order, dated 06-11-1996. 6. The learned standing counsel appearing on behalf of the respondent-corporation placed reliance on the aforesaid decision of the Division Bench apart from the another decision of the Division Bench in APSRTC, HYD AND OTHERS v. VALLURU VENKATA NARAYANA [2], where in similar circumstances this Court did not accede to the request. Even otherwise it is submitted that the decision inter parties on the direction given could not come to the rescue of the petitioner-appellant having regard to the changed circumstances of law and otherwise. 7. Having heard both sides, the ultimate point, which arises for consideration, is whether on the facts and circumstances, the petitioner-appellant is entitled to be considered for the appointment as sought for. 8. Undisputedly the petitioner-appellant is the son of the employee of the respondent-corporation, who retired in the year 1992. Accordingly, a claim was put forth on his behalf seeking for appointment as a Cleaner in the said region. Since no action is being taken, a writ was filed on his behalf in W.P.No.29241 of 1995 and it was disposed of on 28-06-1996 directing to consider his case in terms of the said circular, dated 05-10-1987. His case has come up for consideration, however in the follow up of consideration for providing 30% of posts in the category of Cleaner, as reserved to the children of ex-employees, the petitioner-appellant stands at serial No.71 out of 80 pending applications, and therefore, his case was rejected as per the impugned orders, dated 06-11-1996 with an observation that his case will be considered as and when his turn would come up for consideration as per the order of preference in the said circular under 30% quota in the region. There is also no dispute that in terms of the said circular, dated on 05-10-1987 and also the subsequent circulars issued including one dated 15-02-1995, no doubt a scheme is existing for providing employment both on compassionate grounds in respect of the deceased employees and also for the retired employees, either be it medically unfit or voluntary retirement apart from those retired on attaining the age of superannuation. 9. At this juncture, it is relevant to note that in SHAIK AHMAD ALI SHAH’s case (1 supra), a Division Bench of this Court, while considering the very same circular, dated 05-10-1987 along with another circular, dated 29-11-1987 of the respondent-corporation under Article 16(2) of the Constitution of India, held that the same is violative of the article 16(2) of the Constitution of India being based on the ground of descent and therefore, one would not be entitled to any preferential treatment on the ground of his being the son of a serving employee and no Mandamus can therefore be issued. It was further held that: “Generally speaking, equality of rights, privileges, and capacities should be the aim of the law; special privileges are obnoxious, and discriminations against persons or classes are still more so. There are unquestionably cases in which the State may grant privileges or favours to specified individuals or groups without violating any Constitutional principle or limitation, because, from the nature of the case, it is impossible they should be possessed and enjoyed by all; but, in all such cases the Constitution it self sanctions departure from the general rule of equality, for example, Art. 15 (3) and (4) and Article 16 (4)and (4-A ). Any departure from the general rule without Constitutional sanction would be a nullity. Whatever may be the cause for practicing hereditarianism in the matter of public employment by issuing the circular dated 5- 10-1987 to thwart the Constitutional injunction embodied in Clause (2) of Art.16 of the Constitution, the abhorrent practice is liable to be condemned as unconstitutional and retrograde. Hereditary appointment has no place in public employment. Article 14 guarantees general right of equality – Articles 15 and 16 relate to same right in favour of citizens – Article 15 more general than Article 16 – Article 16 confined to matters of employment or appointment under the State – Article 15 not mentioning ‘descent’ as a prohibited ground of discrimination while Article 16 mentions so – Article 16 not debarring reasonable classification in the matter of appointment or promotion – Article 16 (1) guarantees equal opportunity to all citizens to apply for a post under the State and to be considered for the post on merits – Article 16(2) invalidates a law or a rule or an order authorizing discrimination in the matter of appointment under the State on the grounds specified therein, viz., descent, etc.” 10. In VALLURU VENKATA NARAYANA’s case (2 supra), once again a Division Bench of this Court, while considering the request in the similar circumstances and following the principles laid down in UMESH KUMAR NAGPAL v. STATE OF HARYANA [3] , holding that the employment by way of compassionate appointment cannot be come a source of recruitment, and in LIC v. ASHA RAMCHHANDRA AMBEDKAR [4], holding that the employer cannot be directed to give appointment in contravention of the Regulations and the instructions which govern appointment on compassionate grounds, which have been reiterated again in STATE OF H.P. v. JAFLI DEVI [5], held that: “16. 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. 17. 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. 19. 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.” 11. From the above, the resultant situation is that no doubt there have been certain schemes under various circulars issued by the respondent-corporation at various points of time providing such employment in such circumstances in pursuance of which the respondent-corporation appears to have acted on providing the employment as well. However, having regard to the principles laid down in both the aforesaid decisions of the Division Bench of this Court, it can safely be concluded, without any demark, that the very scheme is in the teeth of the mandate under the Constitution and this Court could not venture to give any relief or to show any indulgence in its extraordinary jurisdiction under Article 226 of the Constitution of India. Further, on the perusal of the entire judgments in both the aforesaid decisions and on due consideration of the principles laid down thereunder, we also do not find any reason to differ or vary with those principles, on either of the counts the petitioner-appellant could not seek the relief as sought for. 12. Coming to another interested proposition, which the appellant has come forth in these proceedings, he sought to propose that there being a judgment and a direction which is inter parties, where this Court, by giving effect to the very same circulars, has allowed a writ filed by his mother earlier in W.P.No.29241 of 1995, dated 28-06-1996 for consideration of the appellant’s case in terms of the very same circulars. Therefore, this cannot be given a go bye both on the counts of principles of res judicata and the binding nature of law of precedents. 13. The learned counsel sought to place reliance on two decisions reported in JANARDHAN REDDY v. STATE OF HYDERABAD [6], and MADAN MOHAN PATHAK AND ANOTHER v. UNION OF INDIA AND OTHERS [7] . 14. In JANARDHAN REDDY’s case (6 supra), the Supreme Court, while considering the provisions of Section 235 of Cr.P.C. vis-à-vis the provisions of Hyderabad Special Tribunals Regulation (V [5] of 1358-F as amended by Regulation of 30-10-49 and vis-à- v i s Article 32(2) of the Constitution of India in regard to the principles of retrospective operations, held that: “The provisions of the Article were not intended to operate retrospectively, & therefore, something which was legally good on 25-1-1950, cannot be held to have become bad on 26-1-1950. Where, therefore, the judgment of the H.C. affirming the convictions & sentences of the petnrs. had acquired finality in the fullest sense of the term before 26-1-1950, no one could question the validity of the convictions at the date when the Constitution came into force.” 15. I n MADAN MOHAN PATHAK’s case (7 supra), the provisions of the Life Insurance Corporation (Modification of Settlement) Act, 1976 vis-à-vis Articles 19(1)(f) and 31 (1) and (2) of the Constitution of India have come up for consideration. While so, it was observed that: (25) IT is significant to note that there was no reference to the judgmentof the Calcutta High court in the Statement of Objects and Reasons, nor any non-obstante clause referring to a judgment of a court in S. 3 of the impugned Act. The attention of Parliament does not appear to have been drawn to the fact that the Calcutta High court has already issued a writ of Mandamus commanding the Life Insurance Corporation to pay the amount of bonus for the year April 1, 197 5/03/1976. It appears that un- fortunately the judgment of the Calcutta High court remained almost un- noticed and the impugned Act was passed in ignorance of that judgment. S. 3 of the impugned Act provided that the provisions of the Settlement in so far as they relate to payment of annual cash bonus to Class III and Class IV employees shall not have any force or effect and shall not be deemed to have had any force or effect from 1/04/1975. But the writ of mandamus issued by the Calcutta High court directing the Life Insurance Corporation to pay the amount of bonus for the year April 1, 197 5/03/1976 remained untouched by the impugned Act. So far as the right of Class III and Class IV employees to annual cash bonus for the year April 1, 197 5/03/1976 was concerned, it became crystallised in the judgment and thereafter they became entitled to enforce the writ of mandamus granted by the judgment and not any right to annual cash bonus under the Settlement. This right under the judgment was not sought to be taken away by the impugned Act. The judgment continued to subsist and the Life Insurance Corporation was bound to pay annual cash bonus to Class III and Class IV employees for the year April 1, 197 5/03/1976 in obedience to the writ of mandamus. The error committed by the Life Insurance Corporation was that it withdrew the Letters Patent Appeal and allowed the judgment of the learned single Judge to become final. By the time the Letters Patent Appeal came up for hearing, the impugned Act had already come into force and the Life Insurance Corporation could, therefore, have successfully contended in the Letters Patent Appeal that, since the Settlement, in so far as it provided for payment of annual cash bonus, was annihilated by the impugned Act with effect from 1/04/1975, Class III and Class IV employees were not entitled to annual cash bonus for the year April 1, 197 5/03/1976 and hence no writ of mandamus could issue directing the Life Insurance Corporation to make payment of such bonus. If such contention had been raised, there is little doubt, subject of course to any constitutional challenge to the validity of the impugned Act, that the judgment of the learned single Judge would have been upturned and the writ petition dismissed. But on account of some inexplicable reason, which is difficult to appreciate, the Life Insurance Corporation did not press the Letters Patent Appeal and the result was that the judgment of the learned single Judge granting writ of mandamus became final and binding on the parties. It is difficult to see how in these circumstances the Life Insurance Corporation could claim to be absolved from the obligation imposed by the judgment to carry out the writ of mandamus by relying on the impugned Act. (26) THE Life Insurance Corporation leaned heavily on the decision of thiscourt in Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality in support of its contention that when the Settlement in so far as it provided for payment of annual cash bonus was set at naught by the impugned Act with effect from 1/04/1975, the basis on which the judgment proceeded was fundamentally altered and that rendered the judgment ineffective and not binding on the parties. We do not think this decision lays down any such wide proposition as is contended for on behalf of the Life Insurance Corporation. It does not say that whenever any factual or legal situation is altered by retrospective legislation, a judicial decision rendered by a court on the basis of such factual or legal situation prior to the alteration, would straight- away, without more, cease to be effective and binding on the parties. It is true that there are certain observations in this decision which seem to suggest that a court decision may cease to be binding when the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. But these observations have to be read in the light of the question which arose for consideration in that case. There, the validity of the Gujarat Imposition of Taxes by Municipalities (Validation) Act, 1963 was assailed on behalf of the petitioners. The Validation Act had to be enacted because it was held by this court in Patel Gordhandas Hargovindas v. Municipal Commissioner, Ahmedabad that since S. 73 of the Bombay Municipality Boroughs Act, 1925 allowed the Municipality to levy a 'rate' on buildings or lands and the term 'rate' was confined to an imposition on the basis of annual letting value, tax levied by the Municipality on lands and buildings on the basis of capital value was invalid. S. 3 of the Validation Act provided that notwithstanding anything contained in any judgment, decree or order of a court or tribunal or any other authority, no tax assessed or purported to have been assessed by a municipality on the basis of capital value of a building or land and imposed, collected or recovered by the municipality at any time before the commencement of the Validation Act shall be deemed to have invalidity assessed, imposed, collected or recovered and the imposition, collection or recovery of the tax so assessed shall be valid and shall be deemed to have always been valid and shall not be called in question merely on the ground that the assessment of the tax on the basis of capital value of the building or land was not authorised by law and accordingly any tax so assessed before the commencement of the Validation Act and leviable for a period prior to such commencement but not collected or recovered before such commencement may be collected or recovered in accordance with the relevant municipal law. It will be seen that by S. 3 of the impugned Act the Legislature retrospectively imposed tax on building or land on the basis of capital value and if the tax was already imposed, levied and collected on that basis, made the imposition, levy, collection and recovery of the tax valid, notwithstanding the declaration by the court that as 'rate', the levy was in- competent. This was clearly permissible to the Legislature because in doingso, the Legislature did not seek to reverse the decision of this court on the interpretation of the word 'rate', but retrospectively amended the law by pro- viding for imposition of tax on land or building on the basis of capital value and validated the imposition, levy, collection and recovery of tax on that basis. The decision of this court holding the levy of tax to be incompetent on the basis of the unamended law, therefore, became irrelevant and could not stand in the way of the tax being assessed, collected and recovered on the basis of capital value under the law as retrospectively amended. That is why this court held that the Validation Act was effective to validate imposition, levy, collection and recovery of tax on land or building on the basis of capital value. It is difficult to see how this decision given in the context of a validating statute can be of any help to the Life Insurance Corporation. Here, the judgment given by the Calcutta High court, which is relied upon by the petitioners, is not a mere declaratory judgment holding an impost or tax to be invalid, so that a validation statute can remove the defect pointed out by the judgment amending the law with retrospective effect and validate such impost or tax. But it is a judgment giving effect to the right of the petitioners to annual cash bonus under the Settlement by issuing a writ of mandamus directing the Life Insurance Corporation to pay the amount of such bonus. If by reason of retrospective alteration of the factual or legal situation, the judgment is rendered erroneous, the remedy may be by way of appeal or review, but so long as the judgment stands, it cannot be disregarded or ignored and it must be obeyed by the Life Insurance Corporation. We are, therefore, of the view that in any event, irrespective of whether the impugned Act is constitutionally valid or not, the Life Insurance Corporation is bound to obey the writ of mandamus issued by the Calcutta High court and to pay annual cash bonus for the year April 1, 197 5/03/1976 to Class III and Class IV employees.” 16. Reliance was also placed on the judgment in W.P.No.29241 of 1995, dated 28-06-1996, wherein a similar relief was acceded to for consideration in respect of the wife of an employee who was declared medically unfit for the post of Driver. The said direction was issued by following the orders in a batch of cases in W.P.No.1611 of 1994 and batch disposed of on 27-11- 1995, which contemplated for consideration of the cases in terms of the very same circular, dated 05-10-1987. 17. Be that as it may, as long as those circulars were given effect to, no doubt, this Court has been giving directions for consideration of the cases in similar circumstances. But, however, on the face of now, two decisions won virtually setting at naught the very scheme