THE HON’BLE SRI JUSTICE C.V. RAMULU Friday, first day of February,2008 W.P.Nos.26488 of 2006, 2877 of 2007 & 499 and 660 of 2008 W.P.No.26488 of 2006 Between:- Smt. M. Manjula … Petitioner and Andhra Pradesh State Road Transport Corporation, rep. by its Vice Chairman & Managing Director, Musheerabad, Hyderabad and others … Respondents THE HON’BLE SRI JUSTICE C.V. RAMULU W.P.Nos.26488 of 2006, 2877 of 2007 & 499 and 660 of 2008 COMMON ORDER: In all these Writ Petitions, common questions of law and fact arise for consideration; therefore, they are being disposed of by this common Order. Petitioners in these Writ Petitions are the children/spouses of deceased employees of Andhra Pradesh State Road Transport Corporation (APSRTC) who died in harness. When they made applications for considering their cases for compassionate appointment against any suitable post, their cases were neither considered nor rejected. According to the petitioners, the Managing Director of APSRTC issued Circular No.PD-204/77, dated 16-1-1978 under ‘bread winner scheme’ for providing employment to the dependents of the employees, who died in harness. The said Circular is still in vogue. However, thereafter, another Circular No.PD-4/2006 dated 7-2-2006 has been issued by the respondent-Corporation, whereunder it is stated that in view of Andhra Pradesh (Regulation of Appointments and Rationalization of Staff Pattern and Pay Structure) Act,1994 (Act 2 of 1994) permission of State Government has to be obtained for any appointments in any public sector undertaking. Further, Government also informed vide its letter No.2475/Tr.II(2)/2005.1, dated 5-3-2005 that any appointments in APSRTC shall be taken up only with the prior approval of the Government. Therefore, the recruiting authorities in APSRTC were instructed not to consider any candidate for appointment under the ‘Bread Winner Scheme’ till a further directive is issued by the Office of the Managing Director. Simultaneously, Government was also requested to accord permission for appointment of dependents of employees, who died in harness under the ‘bread winnder scheme’ vide letter No.GC2/140/2005-PO-I, dated 2-5-2005 but the same was turned down by the Government and as such, the Officers were directed not to refer any case pertaining to children of the employees died in harness to the Head Office for obtaining permission of the Vice Chairman and Managing Director for consideration of their cases. Thus, the Circular dated 14-12-2005 was modified to that effect. In fact, earlier, one such case (W.P.No.2387 of 2007) had come up for consideration before this Court, wherein the Government was made a party. On issuing directions to consider the compassionate appointment of the petitioner in that case, Government issued Memo No.5319/Tr.II(2)/2007-3, dated 20-6-2007. In the said Memo, it was stated as under: “……The Andhra Pradesh State Road Transport Corporation has been engaging Drivers and Conductors on contract basis in view of emergency. The Corporation could consider engaging the petitioner also as Conductor if he meets the eligibility criteria. Alternatively, the petitioner can be given ex-gratia payment.” According to the petitioners, the very Act 2 of 1994 has no application to APSRTC. APSRTC does not fit into the teeth of the ‘State Level Public Enterprise’. APSRTC is created under the Road Transport Corporations Act,1950 (for short ‘the Act’). Further, Act 2 of 1994 as such does not impose any ban on compassionate appointments even in the State Level Public Enterprises. Respondent-APSRTC filed a counter in Writ Petition No.26488 of 2006 denying the allegations made by the petitioners. It is stated that Transport, Roads and Buildings Department of Government of Andhra Pradesh vide its letter No.2475/Tr.II(2)/05-1, dated 5-3-2005 directed the Corporation not to take up any appointments without prior approval of the Government in view of the provisions of A.P.Act 2 of 1994. Further, Government also issued G.O.Ms.No.36, dated 5-9-2001 imposing ban on compassionate appointments and recruitment in the public sector corporations and the said ban is applicable to APSRTC in view of Section 34 of the Act. In view of mandatory and binding provisions of Section 34 of the Act, the said G.O. has been implemented by the respondent-Corporation. In fact, APSRTC addressed letters dated 21-3-2005, 31-3-2005 and 2-5-2005 to the Principal Secretary, Transport, Roads and Buildings (Tr.II) Department of Government of Andhra Pradesh requesting to accord sanction for appointment of dependents of deceased employees under ‘bread winner scheme’. However, Government vide its letter No.4063/TR.II/2005-1, dated 30-7-2005 turned down the request of APSRTC in view of poor financial position of the Corporation. In fact, Government directed to dispense with compassionate appointments and pay ex-gratia to the dependents of the employees died in harness. Even thereafter, respondent- Corporation addressed several letters, but the same have been rejected by the Government. Since Government directed to dispense with compassionate appointments, petitioners could not be appointed under ‘bread winner scheme’ and as such, they were advised to avail the monetary benefits in lieu of employment. In fact, in some cases, the Corporation has considered and placed the petitioners in the list for providing compassionate appointments. Therefore, the interim order passed in WPMP No.34026 of 2006 in Writ Petition No.26488 of 2006, dated 5-10-2007 could not be implemented and the same is liable to be vacated. Unless Government accords sanction for appointment of dependents of employees, who died in harness, the Corporation cannot provide any compassionate appointment. Learned counsel for the petitioners stated that APSRTC is a transport undertaking and created under the R.T.C.Act. The very nature of duties attended to by 3/4th of the employees is driving/conducting the buses. There are as many as 20,000 buses every day going on road in various shifts involving as many as about a lakh of Drivers/Conductors. The lives of these employees are at risk at every moment of the travel. Accidents are inevitable and in large number of cases, the accidents are due to the negligence of the other vehicle or road/weather conditions. Therefore, the ‘Bread Winner Scheme’ was introduced as per the understanding reached between the majority as well as representative unions of the APSRTC. Hence, taking away such a scheme is inhuman in view of the working conditions of the employees and the risk involved therein; as such, the non-consideration of the cases of the petitioners is arbitrary and illegal. Learned counsel for the respondent-Corporation reiterated the same stand as was taken in the counter affidavit. Learned Government Pleader appearing for the 3rd respondent in Writ Petition No.660 of 2008 supported the case of the respondent- Corporation. The facts, as such, are not in dispute. Government has directed under G.O.Ms.No.36, Public Enterprises (III) Department, dated 5-9- 2001 that the scheme of compassionate appointments in State Level Public Enterprises should be dispensed with and in lieu thereof, ex- gratia to the dependents of the employees, who died in harness, may be paid. This is a general G.O. issued against all the State Level Public Enterprises and it is not directly made applicable to APSRTC nor the said G.O. was adopted by the Board of APSRTC nor the said G.O. has been issued in consultation with the APSRTC. Section 34 of the Act reads as under: “34. Directions by the State Government:- (1) The State Government may, after consultation with a Corporation established by such Government, give to the Corporation general instructions to be followed by the Corporation, and such instructions may include directions relating to the recruitment, conditions of service and training of its employees, wages to be paid to the employees, reserves to be maintained by it and disposal of its profits or stocks. (2) In the exercise of its powers and performance of its duties under this Act, the Corporation shall not depart from any general instructions issued under sub-section (1) except with the previous permission of the State Government.” From the above, it is clear that there should be a consultation process with the Road Transport Corporation and thereafter any directions issued as to recruitment etc., are binding on APSRTC. In these cases, there was no such consultation nor the APSRTC approached the Government seeking to impose ban on recruitment under “bread winner scheme” nor it is their case that there were no vacancies available for appointing/accommodating the children/spouses of the deceased employees. Therefore, it cannot be said that G.O.Ms.No.36, dated 5-9-2001 is applicable in case of the petitioners. However, the respondent-Corporation understood it that way and addressed several letters, as noticed above, requesting the Government to permit the Corporation to consider appointment of the children/spouses of employees died in harness; may be, due to the pressures exerted by the Unions as well as individuals. As stated above, when directions were issued in a similar Writ Petition, wherein Government was made a party, Memo No.5319/Tr.II(2)/2007-3, Transport, Roads and Buildings (Tr.II) Department, dated 20-6-2007 was issued stating that as the APSRTC has been engaging drivers and conductors on contract basis in view of emergency, the Corporation can consider engaging the petitioner therein also as a Conductor, if he meets the eligibility criteria and if not, alternatively, can be paid ex-gratia. In fact, the very G.O.Ms.No.36, dated 5-9-2001 would indicate that as part of restructuring and down sizing manpower in State Level Public Enterprises, Government felt desirable to review its policy towards offering compassionate appointments to the dependents of the employees of State Level Public Enterprises dying in harness. This would indicate that to avoid financial burden as well as to create new posts, compassionate appointments was felt not desirable. Whereas, the letter addressed to the Government by the Managing Director of the respondent-Corporation dated 21-3-2005 reads as under: “APPOINTMENT OF DEPENDENTS OF DECEASED EMPLOYEES UNDER BREAD WINNER SCHEME: As a measure of social security, the Government of Andhra Pradesh vide reference 1st and 2nd cited issued instructions providing relief to the family of a Government employee who dies in harness by appointing his son or daughter or spouse in the services of the government without the medium of Employment Exchange subject to the conditions among other things that there is no other earning member in the family. In order to mitigate the hard ships to the families of the employees died in harness due to loss of bread winner the Corporation has introduced Bread Winner Scheme in tune with the Government Policy for providing employment to the dependents of the employees died in harness in the year 1978 vide reference 3rd cited. Under Bread Winner Scheme, the Corporation is also paying additional monetary benefit in lieu of employment. The instructions of the Government on the compassionate appointments are that the dependents of the deceased shall be considered against the vacancies that are readily available. If not they may be appointed against supernumerary posts to be crated for the purpose. But the Corporation is considering the dependents of employees died in harness against the existing regular vacancies of direct recruitment posts in first available vacancy on priority basis. Presently the Corporation is offering the posts of Driver and Conductor to the dependents of the deceased under Bread Winner Scheme. On account of retirement and in view of augmentation of services to take care of traffic needs regular vacancies of Driver and Conductors have arisen as stated in the above paras. Therefore, it has become necessary to consider the cases of dependents of the deceased employees under Bread Winner Scheme.” The above letter would indicate that the Corporation intends to consider the appointment of dependents of employees died in harness against existing regular vacancies of direct recruitment posts in first available vacancies on priority basis. Thus, the Corporation was not intending to create any extra posts resulting in financial burden. The Corporation was intending to consider the cases of the dependents of the employees died in harness under ‘bread winner scheme’ only against the existing vacancies and not otherwise; thus making it clear that there was no financial commitment or burden on the Corporation in considering the cases of the dependents (children/spouses) of employees died in harness. Somehow, Government seems to have not considered the request of the Corporation in proper perspective. However, when a direction was given by this Court earlier in Writ Petition No.2387 of 2007, as noticed above, the case of the petitioner therein was considered and in fact issued Memo dated 20-6-2007 whereunder Government has very categorically stated that in view of recruitment being made to the posts of Drivers and Conductors on contract basis, the case of the children/spouses of the deceased employees also could be considered. In fact, the Corporation has considered and appointed the petitioner therein i.e. Y.Srinivasa Rao, S/o Sriramulu, Narsannapet, Srikakulam District. According to the Corporation, the above direction relates to an individual case and not in general. Before going further, it may be necessary to examine the provisions of Act 2 of 1994. Firstly, the very Act 2 of 1994 has no application to the respondent-Corporation and in fact, in 1998 Government has issued a clarification stating that Act 2 of 1994 has no application for the Corporations/State Level bodies, which are not receiving financial aid for meeting the salaries of its employees. It is not the case of the respondent-corporation that Government is financing them for paying salaries to its employees. Secondly, Section 4 of the Act 2 of 1994, which reads as under: “ Regulation of recruitment:- (1) No recruitment in any public service to any post in any class, category or grade shall be made except,-- (a) ……………….. (b) ……………… (c)……………….. (2) Nothing in sub-section (1) shall apply:- (a) in the compassionate appointments made in favour of a son or a daughter or spouse of any married person or a brother or a sister of any unmarried person employed in public service who dies in harness or who retires from service on medical grounds, in accordance with the relevant orders issued from time to time; (b) to (d) …………..” is very clear and the compassionate appointments even under the Act 2 of 1994 are not prohibited. Assuming that the Government has issued G.O.Ms.No.36, dated 5-9-2001, in view of Section 34 of the Act, it is not binding on the Corporation, since there was no consultation. On the other hand, as per the letters noticed above, the Corporation has evolved a scheme and even after issuance of G.O.Ms.No.36, dated 5-9-2001, Corporation has been making efforts to revive its policy of appointment on compassionate grounds, may be due to the reasons stressed by the learned counsel for the petitioners that the very nature of the job taken up by the majority of the employees was a risky one. Further, the Corporation is not intending to create supernumerary or additional vacancies for accommodating/appointing the children/spouses of the employees died in harness. The Corporation intends to accommodate the children/spouses of the employees died in harness only against the sanctioned posts and not otherwise, as of today. It may not be out of place to notice a few findings of the Apex Court in the decision reported in Director of Education (Secondary) v. Pushpendra Kumar[1], wherein it was held as under: “8. The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made for giving gainful appointment to one of the dependents of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure……………” It is also relevant to notice another decision of the Apex Court in Commissioner of Public Instructions v. K.R. Vishwanath[2], wherein it was observed as under: “9………… Appointment on compassionate ground cannot be claimed as a matter of right. Die-in-harness Scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased-employee. In Rani Devi's case (supra) it was held that scheme regarding appointment on compassionate ground if extended to all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on constitutional grounds. In Life Insurance Corporation of Inida v. Asha Ramachandra Ambekar (Mrs.) and Anr. (1994 (2) SCC 718), it was pointed out that High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplates such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana and Ors. (1994 (4) SCC 138), that as a rule in public service appointment should be made strictly on the basis of open invitation of application and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased.” In view of the above legal position, the judgment relied upon by the learned counsel for the respondents has no application to the facts of this case. Further, the learned counsel for the respondent- Corporation also relied upon an unreported Judgment dated 7-12- 2007 of the Apex Court in Civil Appeal No.5770 of 2007 which arose out of contempt proceedings before this Court, whereunder issuance of G.O.Ms.No.36, dated 5-9-2001 as also Act 2 of 1994 were noticed and it was observed that the said G.O. is binding on the Corporation. However, learned counsel for the petitioners stated that, in the said case, there was no adjudication as to the applicability of the said G.O. to the Corporation; therefore, it cannot be taken into consideration in these cases. May be, all the questions that may arise for consideration can be left open to be decided in an appropriate case. Since the Government has already considered and issued Memo dated 20-6- 2007 directing the Corporation to consider engaging the services of the petitioner in Writ Petition No.2387 of 2007 as a Conductor, if he meets the eligibility criteria etc., I am of the opinion that the Government may have to reconsider the matter for issuing general instructions for considering the cases of children/spouses of employees died in harness for providing employment under ‘bread winner scheme’ without causing any additional financial burden or creating additional/supernumerary posts and the Corporation may have to be permitted to accommodate the children/spouses of the employees died in harness in the existing or future vacancies, particularly in view of the nature of job attended to by majority of employees and the risk involved therein. For all the above reasons, the Principal Secretary, Transport, Roads and Buildings Department of Government of Andhra Pradesh, Hyderabad is directed to reconsider the whole issue and take an appropriate decision in consultation with APSRTC, in this regard, permitting the respondent-Corporation to appoint/absorb the children/spouses of the employees died in harness in any existing or future suitable vacancies, as per their eligibility, within a period of six weeks from the date of receipt of a copy of this Order and communicate the same to the respondent-Corporation as well as the petitioners. With the above directions, the Writ Petitions are disposed of. No order as to costs. 01-02-2008 prk [1] 1998(5) SCC 192; [2] 2005(7) SCC 206.