HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH FRIDAY THIS THE FOURTH DAY OF JULY TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION No.31942 of 2012 Between:
Yadla Sesharatnam and another . PETITIONERS And The Government of Andhra Pradesh, Rep.by its Prl.Secretary, Endowments Department, Secretariat, Hyderabad and 3 others . RESPONDENTS The Court made the following:
THE HON’BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION No.31942 of 2012
ORDER:
Heard the learned counsel appearing for the petitioners and the learned Assistant Government Pleader for Endowments appearing for the respondents.
This writ petition is filed under Article 226 of the Constitution of India seeking a Writ of Mandamus declaring the retirement of late Y.Ganapathi, Garden Coolie, worked in the 3rd respondent Devasthanam, who is the husband of the 1st petitioner, as premature in view of the clarification issued by the 4th respondent after retirement and consequently, direct the respondents to appoint the 2nd petitioner, who is the son of the deceased Y.Ganapathi in the 3rd respondent Devasthanam on compassionate grounds.
The brief facts necessary for considering the writ petition may be stated as follows:
The husband of the 1st petitioner late Yadla Ganapathi (hereinafter referred to as “employee”) was appointed as Garden Coolie in Sri Sri Sri V.V.Satyanarayanaswamy Devasthanam, Annavaram, IV class employee and he joined the service on 21.04.1975. At the time of joining the service, as the employee did not possess any educational qualification to ascertain his date of birth, the 3rd respondent authorities referred him to Medical Officer of Devasthanam for determination of his age on 05.04.1977. The Medical Officer determined the age of the employee as on that date as 28 years. Accordingly, a certificate was issued to the employee mentioning his date of birth as 05.04.1949 and the same was entered in the service register of the employee. Considering his date of birth as 05.04.1949, the employee was to retire from service on 30.04.2009 as per the service conditions. Accordingly, the 3rd respondent issued a notice in Rc.No.A1/1086/09, dated 23.03.2009 permitting the employee to retire from service on 30.04.2009. In the meanwhile, the 3rd respondent, vide Rc.No.A1/1086/09, dated 02.04.2009 sought for a clarification about the exact date of retirement of the employee.
However, as per Article 358 of the A.P.Pension Code, in case of an employee, whose date and month of birth is not known except the year, then the date of birth should be taken as the 1st July of that year. In view of the said Article, the 3rd respondent sent the service register of the employee to the 4th respondent with a request to clarify on the entries of date of birth made in the service register of the employee and intimate the exact date of retirement of the employee. While the matter was pending with the 4th respondent, the 3rd respondent superannuated the employee vide his notice dated 29.04.2009 stating that the employee is permitted to retire from service with effect from 30.04.2009 A.N subject to clarification of the 4th respondent - District Audit Officer, State Audit, Kakinada. Accordingly, the employee was retired on 30.04.2009 prematurely before getting clarification from the 4th respondent. Further, even before the clarification was given by the 4th respondent, the employee died on 08.05.2009 due to heart attack. Subsequently, the 4th respondent, vide his letter dated …04.2009 gave reply to the 3rd respondent and returned the pension proposals of the employee stating that the sanctioning authority may take action based on Article 358 of the A.P.Pension Code.
After demise of the employee, the 1st petitioner, who is his wife, had put in a representation to the 3rd respondent on 27.06.2009 with a request to provide a job to the 2nd petitioner, the son of the deceased employee, on compassionate grounds. The said representation was rejected by the 3rd respondent on the ground that the husband of the 1st petitioner was retired in normal course on 30.04.2009 on attaining his age of superannuation.
Now the contention of the petitioners in the present writ petition is that according to the amendment made to Article 358 of the A.P.Pension Code, vide G.O.Ms.No.299 Finance & Planning (Fin.Wing) (Pen.I) Department dated 04.11.1974, where the year of birth of an employee is only known and the month is not known, 1st July has to be taken as date of birth. Thus, according to the petitioners, the appointing authority should have taken into consideration Article 358 of the A.P.Pension Code to determine the date of superannuation of the husband of the 1st petitioner.
If so taken, since the husband of the 1st petitioner retired on 30.04.2009, his retirement has to be considered as premature retirement and as he died on 08.05.2009 due to heart attack and it is deemed that the employee died in harness which entitles compassionate appointment to the 2nd petitioner.
In the counter affidavit filed by the 3rd respondent, the fact that the husband of the 1st petitioner was made to retire on 30.04.2009 subject to clarification by the Audit Department is admitted. It is also admitted that the Audit Department has suggested to take action as per Article 358 of the A.P.Pension Code. However, it is contended by the 3rd respondent that the employee never raised any objection for the entries made in the Service Register and he did not file any objection at the time of receiving one month advance notice on 23.03.2009. The Audit Officer authorized the payment of pensionery benefits to the 1st petitioner and they were paid. The date of birth was arrived as per Rule 8 of the A.P.Last Grade Service Rules and Article 358 of the Pension Code Vol.I and therefore, the date of birth entered in the Service Register is lawful and there was no violation of rules.
The version of the 3rd respondent is that the employee was made to retire as per the entries made in the Service Register and his retirement was not premature and he had not died in harness as contended by the petitioners and the claim of the 2nd petitioner is untenable. According to the 3rd respondent, since the husband of the 1st petitioner died on 08.05.2009 after his actual retirement, the case of the 2nd petitioner for appointment on compassionate grounds was rightly rejected.
Now the point for determination in the present writ petition is whether having regard to the aforesaid facts and circumstances, the 2nd petitioner is entitled to make a claim for compassionate appointment?
Point:
The Audit Department sent reply to the 3rd respondent after the death of the employee clarifying that for determination of the actual date of birth of the employee, Article 358 of the A.P.Pension Code has to be taken into consideration. The 3rd respondent also admitted in the counter that when the exact date and month of the birth of an employee is not available, the 1st July of that year should be taken as the date of birth of the employee.
Obviously, therefore, making the husband of the 1st petitioner to retire on 30.04.2009 is wholly erroneous. The husband of the 1st petitioner, as per Article 358 of the A.P.Pension Code, ought to have been retired by the 3rd respondent on 31st July, 2009. Admittedly, the husband of the 1st petitioner died on 08.05.2009 which is much prior to his actual retirement date i.e. 31st July, 2009. The husband of the 1st petitioner was also put forth his contention before the Audit Department to consider his date of superannuation as 31.07.2009. His contention was ultimately upheld by the Audit Department and before the clarification reached the 3rd respondent from the Audit Department, the employee passed away. Therefore, in the considered opinion of this Court, the retirement of the husband of the 1st petitioner is a premature retirement and it is deemed that the employee died in harness due to heart attack. Eventually, the 2nd respondent who is the son of the deceased employee can make a claim for compassionate appointment, as per existing rules.
For the foregoing reasons, it is hereby declared that the retirement of the husband of the 1st petitioner Y.Ganapathi is premature by virtue of Article 358 of the A.P.Pension Code and the clarification given by the 4th respondent. Consequently, the 2nd petitioner is entitled for appointment on compassionate grounds. The 2nd petitioner is directed to make a representation seeking compassionate appointment to the 3rd respondent afresh in this regard within a period of 2 (two) weeks from the date of receipt of a copy of this order and on receiving such representation, the 3rd respondent shall consider and pass appropriate orders thereon within a period of 2 (two) months therefrom.
The Writ Petition is accordingly allowed. In the circumstances, there shall be no order as to costs.
Pending miscellaneous petitions, if any, shall stand closed in consequence.
R.KANTHA RAO,J Date: 04.07.2014 Dsr