K.G. Shankar. J

1. The petitioners seek for a Writ of Certiorari to quash the orders of the Andhra Pradesh Administrative Tribunal (The Tribunal, for short) in O.A.No.4507 of 2009, dated 29.01.2010. The first respondent, who is an unemployed person, filed O.A.No.4507 of 2009 questioning the propriety of petitioners 2 to 4 herein in not appointing him to a post under the medical invalidation scheme.

2. The father of the first respondent, by name Shaik Chand, was working as Assistant Sub-Inspector of Police, District Crime Branch, Adilabad. On account of health grounds, he decided to retire on medical invalidation. Upon his application, he was directed to appear before the Medical Board. The Medical Board considered that the father of the first respondent herein was medically unfit. He was, consequently, permitted to retire from service. The father of the first respondent accordingly retired from service in December, 2001 on the ground of medical invalidation.

3. The first respondent, who is the eldest son of his father-Shaik Chand, was entitled to be appointed on compassionate grounds. The first respondent applied to the departmental authorities for appointment on compassionate grounds taking the stand that his father retired from service on medical invalidation.

4. Ultimately, the first respondent was appointed as an Attender on contract basis in the office of the fourth petitioner herein. He has been working on a consolidated pay. In view of the judgment of the High Court in Government of Andhra Pradesh v. D. Gopaiah 2001 (6) ALT 553 where the Full Bench held that the scheme of compassionate appointments on medical invalidation cases was against the Constitution, Government of Andhra Pradesh issued G.O.Ms.No.246, dated 30.05.2006 discharging the candidates who were appointed under the scheme of medical invalidation. Consequently, the first respondent was discharged from the post of attender, through orders of the fourth petitioner herein, dated 11.12.2006.

5. The Supreme Court, subsequently overruled the judgment of D. Gopaiah, in V. Sivamurthy v. State of Andhra Pradesh (2008) 13 SCC 730 = (2009) 1 SCC (L&S) 335. The first respondent, therefore, seeks for his appointment once again on compassionate grounds.

6. The fourth respondent laid counter before the Tribunal. The contentions of the first respondent that his father retired from service on medical invalidation, that he was appointed as an attender under the medical invalidation scheme and that he was subsequently discharged in view of G.O.Ms.No.246 were all admitted. The petitioners contend that as there was no vacancy of attender in the office of the third petitioner herein, the first respondent could not be accommodated. It was further averred in the counter before the Tribunal that the application of the first respondent could not be considered on account of non-availability of the roaster point for his appointment. It is alleged that the petitioner, therefore, is not entitled to the relief as prayed for.

7. This is a typical case of retirement on medical invalidation. There was a scheme of appointment of the dependents of government servants, who retired on medical invalidation. The scheme was in force till the High Court of Andhra Pradesh pronounced Gopaiah’s case. The Full Bench in that case held that the scheme was against the Constitution and hence was not enforceable. Consequently, Government of Andhra Pradesh passed orders in G.O.Ms.No.202, dated 27.04.2002 dispensing with the scheme of compassionate appointments to the dependents of the government employees who retired on medical invalidation. The judgment of the High Court in Gopaiah’s case was pronounced on 12.10.2001. The scheme of compassionate appointments, however, continued till 27.04.2002. While so, the father of the first respondent retired from service in December, 2001. In other words, the father of the first respondent retired from service after the Full Bench of the High Court held that