S SHIVASANKARA SATYANARAYANA Vs. SECRETARY AND CORRESPONDENT VISAKHAPATNAM PORT EDUCATION SOCIETY VISAKHAPATNAM

JUDGEMENT

(1.) The respondent No. 4 is the son of one Mr. Musalayya, a Record Assistant working in the school of respondent No. 1 who was retired on medical grounds on 11-6-1992. The respondent 4 was appointed as a Watchman on compassionate grounds on consolidated emoluments of Rs. 600/- per mensem, vide proceedings dated 18-09-1992. He went on making representations to the 2nd respondent and also the 1st respondent and the authorities to provide him the suitable post including that of Record Assistant which his father had held since he had passed inter mediate examination and he was eligible to be appointed for such post. He succeeded in getting such a post on the orders of the respondent No. 1 in proceedings No.VPES/21/Rect/95/465, dated 11-1-1995 which was passed on the basis of proceedings of the 2nd respondent in Rc.No. 43/B4/94, dated 25-12-1994 and accordingly he was appointed as Record Assistant. While the matter proceeded thus, the petitioner, an attender in the school having some considerable experience as such was aggrieved, as according to him, such a post ought to have been filed up from amongst the attenders by selecting the senior most, that the respondent No. 4 having got the benefit of appointment on compassionate grounds as a watchman could not have been reconsidered for appointment on the same ground and further more the appointment to the post of Record Assistant has been discriminated as between him and respondent No. 5 (Mr. K.V. Ramana Rao, subsequently impleaded as party) as he was illegally transferred from unaided post to aided post depriving the petitioner of the opportunity of being promoted to such a post. It is also the grievance of the petitioner that notwithstanding the appointment of the 4th respondent on compassionate ground to any post, he was not entitled to be fitted into the said post as if it was reserved for Scheduled Caste to get automatically appointed thereby violating the hundred point roaster system. Therefore, the petitioner having agitated and constrained of his right to be promoted as a Record Assistant which fell vacant on 11-6-1992, came up with this writ petition for passing appropriate orders or writ to hold such proceedings of respondents 1 and 2 are illegal, arbitrary and contrary to the proceedings of the Director of School Education dated 25-2-1985 and violative of Articles of 14,16 and 21 of the Constitution of India and to direct respondents 1 to 3 to promote him to such a post with effect from 11-6-1992. On behalf of respondent No. 1, counter affidavit and two additional affidavits have been filed, respondents 2 and 3 have filed a common counter affidavit and respondent 4 has also filed counter affidavit, in addition to the petitioner filing replies to the counter affidavits. Although respondent 5 was impleaded subsequently as per the orders of this Court dated 4-3-1997 and represented by an advocate, he has not proposed to file any counter affidavit.

(2.) The sum and substance of the contentions of respondents 1 to 4 can be recorded in brief. In fact, it is the 1st respondent who has provided all the details and the materials in regard to the controversies between the parties. In general it is contended that the respondent No. 1 under the circumstances had to pass certain orders both in regard to the appointment of respondent 4 initially as a watchman and later as Record Assistant and further giving opportunity to the petitioner to opt for being appointed as Record Assistant in unaided post when respondents was transferred from unaided post to aided post when it is created and further more having found certain implications of the consequences after this writ petition was filed, a latest order has also been passed by respondent 1 in proceedings dt. 22-2-1996 proposing to promote the petitioner to the aided post, not treating respondent 5 in the aided post of Record Assistant and further more arranging for appointment of respondent 4 as attender in the consequential vacancy failing vacant on the promotion of the petitioner to such a post. Respondent No. 1 also explained as to how the hundred point roaster was followed in the course of the proceedings under the circumstances appearing in the institution. It is pleaded, however, on behalf of respondent No. 1 that everything is being done by following certain rules and procedure after obtaining approval or permission of respondent 2 or the Government as the case may be. In the latest counter affidavit filed by respondent 1, it is pointed that although the proceedings of the D.E.O. 2nd respondent dated 22-2-1996 have been issued, it is not implemented due to the pendency of this petition. Respondents 2 and 3 practically adopted the stand taken by respondent 1. Respondent 4 has contended that he was entitled to be appointed as Record Assistant in view of the retirement of his father, Musalayya on medical grounds as per the prevailing G.O. and the rules operating upon such situation, since he was appointed only as a watchman although he was qualified to be appointed as Record Assistant, he had to approach the authorities to appoint him for the post of Record Assistant which was done ultimately for which he is entitled. He has denied the plea of the petitioner thathe is entitled to be promoted to the post of Record Assistant which fell vacant due to the retirement of his father on medical grounds. In effect, respondents 1 to 4 have pointed out that the post to which respondent 4 was considered to be appointed on compassionate grounds was reserved for scheduled caste regarding which the petitioner is not entitled either for appointment or for promotion. In so far as the transferring of respondent 5 from unaided post to the aided post is concerned, the learned Government Pleader for respondents 2 and 3 has pointed out that it was done as a matter of course and not based on any provisions or G.O. as the practice in the school was to follow common seniority and since respondent 5 was eligible to be considered for such an appointment. At any rate, the learned Government Pleader has contended that the petitioner has no right to be promoted to such post, but still the matter is being considered by passing latest order dated 22-2-1996 to rectify any situation which could have been properly adopted in the situation,

(3.) Having heard Mr. Jaganmohan Reddy, learned advocate for the petitioner, Mr. T. Gopala Krishna for, 1st respondent, learned Government Pleader for respondents 2 and 3, Mr. V. Parabrahma Sastry for respondent 4 and Mr. K. Suryanarayana for respondent No. 5., this Court is of the considered opinion that no party in this writ petition is acting with any improper or illegal manner to gain any advantage and the whole matter has gone with some understanding to the rules or procedure in the situation and orders are being passed without any prejudice or injustice to be caused to anybody. However, this Court having confronted with real controversy among the parties, as a duty, they are being resolved by means of this judgment. Undoubtedly, Musalayya was appointed for the post of Record Assistant reserved for Scheduled Caste regarding which the selection was made by a selection committee on 28-1-1982 and the order appoint in him based on selection was specifically and categorically in relation to appointment of such a person to the reserved post for Scheduled Caste, and the stand taken by respondents 1 to 3 is totally vindicated. Admittedly, the petitioner is not a member of the Scheduled Caste. If he is thinking of getting appointed or promoted to such a post, he has no right as such. In so far as respondent 4 is concerned, undisputably he was considered for being appointed to a post due to the vacancy caused on the retirement of his father, Musalayya on medical grounds. Without any controversy, the event of such a post falling vacant on the retirement of Musalayya, again created a vacancy reserved for Scheduled Caste which can be filled up only from amongst such members either by fresh recruitment or by promotion, however, subject to the hundred point roaster which will be elaborated at the appropriate stage. It is not in dispute that the petitioner having passed inter mediate examination, as can be disclosed from the materials also, was eligible to be appointed to the post of record assistant or any similar post for which he was eligible. The petitioner is not for a moment thinking of getting appointment to such a post as a rival candidate for respondent 4. The right of respondent No. 4 to such a post is well declared by law only. Originally, the benefit of appointment on compassionate grounds was restricted only in case of the employees dying in harness and later on it was extended to the cases of retirement on medical grounds. Such an opportunity can be traced to G.O.Ms.No. 504, dated 30-7-1980. Clause II of the G.O. has specifically extended such a benefit to the eligible persons for appointment on compassionate grounds. The petitioner being the son of the retired employee on medical grounds is one of such eligible persons to be governed by the said G.O. The manner in which respondent 4 agitated shows that he was seeking such appointment or promotion as a matter of right but not justifiably in view of Clause 3 (i) of the G.O. saying that such a consideration for compassionate appointment shall be allowed only in exceptional cases where the appointing authority is satisfied that the condition of the family is indigent and in great distress. That appears to be the distinction between appointment on compassionate grounds on the death of an employe and on the retirement on medical grounds. The 4th respondent falls within 'candidate eligible' for consideration of appointment under Clause 3 (ii), who is said to be one of the dependent children of retired employee. According to Clause 3 (iii), the eligible person shall be appointed to the post of Lower Division Clerk or Equivalent post or any other lower post. There ane other conditions stipulated in the said G.O. for appointment of such persons on compassionate grounds. If we read Clause 3 of the G.O. as a whole, it is appitent that the appointing authority can resort to such appointment only in exceptional cases mentioned therein and to read the eligibility of the persons to be considered for appointment to such posts only means that such an entitlement is only subject to the decision of the appointing authority subject to such stipulations. Therefore, the expression 'shall' used in sub-clause (iii) of Clause 3 of the G.O. is not mandatory but regulatory and part of sub-clause (i) only. Therefore, the 4th respondent was not entitled to the post of Record Assistant as a matter of right although he was eligible to be appointed. The learned Counsel for the petitioner with all sincerity tried to point out that such an application ought to have been made within one year as a period of limitation which was further to his appointment on compassionate grounds as watchman and therefore, he was not entitled to be appointed for the post of Record Assistant which was beyond the period of one year. Sub- clause (iv) is the stipulation in regard to the time limit which reads as follows: