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2022 Supreme(AP) 295

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
RAVI NATH TILHARI, J.
Gochipatha Kalyani – Appellant
Versus
The State of Andhra Pradesh, rep.by its Principal Secretary, General Administration (Ser-A) and 3 others – Respondents
Writ Petition No. 14734 of 2021
Decided on : 08-04-2022

Advocates:
Advocate Appeared:
For the Appellant : Sri K. Suri Sai Sanjay

Headnote:

Constitution of India,1950 - Article 14, 19, 21, 15 and 16 - Compassionate appointment - Bread Winner Scheme - No discrimination can be made in such matters on ground of sex and marriage Petitioner’s late father was originally working as Welder Grade-III in the Office of 4th respondent General Superintendent, P.W. Workshop Division, leaving behind his wife and two daughters, i.e., petitioner and her sister - Petitioner submitted representation 4th respondent requesting to provide employment on compassionate ground duly submitting all requisite documents - Affidavits of family members, i.e., mother and sister of the petitioner in petitioner’s favour, No Earning Member certificate - No Property Certificate, Caste certificate and the academic qualification certificates were duly annexed - 4th respondent forwarded petitioner’s representation to the 3rd respondent-the Superintending Engineer, Irrigation Circle, Guntur, Guntur District, stating that in view of Government- petitioner’s request was to be considered in P.W. Workshop Division, only, but as at that time there was no suitable post vacant with 10th Class as minimum qualification Department - Collector of concerned district was the Nodal authority for allotment of the eligible dependents of one department to any other department for appointment on compassionate grounds – Held, Constitution have an important bearing on gender identity - Court considered legality of a rule in Indian Foreign Service (Conduct and Discipline) Rules under which a woman member of service was required to obtain permission of Government before her marriage was solemnized and could be required to resign from service after her marriage, if Government was satisfied that her family and domestic commitments are likely to come in way of due and efficient discharge of her duties as a member of the service - Supreme Court held that “If a married man has a right, a married woman, other things being equal, stands on no worse footing - Court is of considered view that married daughter is also entitled for compassionate appointment. Impugned order, rejecting the petitioner’s claim for appointment on compassionate ground, only on ground that petitioner is married daughter of the deceased, cannot be sustained - Writ Petition is allowed.

JUDGMENT :

Heard Sri K. Suri Sai Sanjay, learned counsel, representing Sri Nagendra Paragati, learned counsel for the petitioner and perused the material available on record.

2. This writ petition has been filed for the following relief:

    “...to issue a writ order or direction more particularly one in the nature of writ of Mandamus declaring the impugned order Rc.No.1581/2019-B5, dated 11-06-2021 passed by the 2nd respondent in not considering the case of the petitioner stating that “the applicant is not eligible one for compassionate appointment being a married daughter and her request cannot be considered as per Govt. Memo No.406/1/A1/ Admn/11/2004, dated 20-03-2004” which is illegal, arbitrary, contrary to Government Memo 116417/Ser.A/2003-1, dated 08-10-2003, Memo No.55769/Ser.A/993, dated 27-01-2000, G.O.Ms.No.350, dated 30-07-1990 and Government Memo No.406/10/A1/Admn.II/2004, dated 20-03- 2004 and violation of Article 14, 19 and 21 of Constitution of India and also violation of the orders passed by this Court in W.P.No.10340 of 2014, dated 26-02-2021 and set aside the same and consequently direct the respondents to appoint the petitioner as Government Employee in any suitable post under Compassionate appointment and pass such order or orders...”

3. Learned AGP for Services – I, representing respondent No.1, submits that respondent No.1 has no concern.

4. Learned GPs for Services – II and III, representing respondents No.2 to 4 are not present.

5. Respondents have not filed any counter affidavit in spite of order dated 10.08.2021 which provided that “since this is a case for compassionate appointment, they are directed to positively file their counter within three weeks.”

6. By the impugned order, the petitioner’s application for compassionate appointment, on the death of her father in harness on 24.04.2016 has been rejected on the only ground that the petitioner being his married daughter her request cannot be considered, in view of Government Memo No.406/10/A1/Admn/11/2004, dated 20.03.2004.

7. The petitioner’s late father Sri Gochipatha Ramesh was originally working as Welder Grade-III in the Office of the 4th respondent-the General Superintendent, P.W. Workshop Division, Seethanagaram, Guntur District, died on 24.04.2016 leaving behind his wife and two daughters, i.e., the petitioner and her sister. The petitioner submitted representation on 17.10.2016 before the 4th respondent requesting to provide employment on compassionate ground duly submitting all the requisite documents. The affidavits of the family members, i.e., the mother and sister of the petitioner in petitioner’s favour, No Earning Member certificate, No Property Certificate, Caste certificate and the academic qualification certificates were duly annexed. The 4th respondent forwarded the petitioner’s representation to the 3rd respondent-the Superintending Engineer, Irrigation Circle, Guntur, Guntur District, stating that in view of the Government Memo No.3476/Ser.III.1/2015-2, dated 27.11.2015, the petitioner’s request was to be considered in P.W. Workshop Division, Sithanagaram only, but as at that time there was no suitable post vacant with 10th Class as minimum qualification. As per G.O.Ms.No.427, G.A.(Ser.A) Department, dated 01.07.1991, the Collector of the concerned district was the Nodal authority for allotment of the eligible dependents of one department to any other department for appointment on compassionate grounds. Vide letter in Rc.No.2106/2017/B5, dated 07.08.2017, the 2nd respondent returned the proposal to the 3rd respondent to re-submit with detailed report, in terms of the Government Memo No.406/10/A1/Admn/11/2004, dated 20.03.2004, which was informed to the petitioner by the 4th respondent vide letter dated 16.10.2017 and pursuant thereto, the petitioner submitted reply on 05.12.2017, reiterating that the petitioner was eligible for appointment on compassionate grounds, as married dependant daughter of the deceased. The matter remained pending

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