B. Nagendra Kumar Vs. Apsrtc and Others - Court Judgment

Excerpt:
service - relaxation of qualification - article 226 of constitution of india - appointment to post of conductor on compassionate grounds denied owing to short height - relaxation made on earlier occasions - as shortage of 4cm does not have any relevance on performance respondent directed to consider petitioner's case for appointment after giving relaxation. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default.order1. the petitioner's father was working as a depot clerk in the 1st respondent corporation. he died on 13-5-1995. the petitioner, who is his son, gave an application for compassionate appointment in the 1st respondent-corporation on 17-3-1997. as no action was taken on his application, it appears that the petitioner filed writ petition no.15252 of 1997 which was disposed of with a direction to the 1st respondent-corporation to consider the petitioner's case for appointment for any suitable post.2. it is stated that in pursuance of the directions, the petitioner was called for an interview for the post of conductor on24-2-1998. it appears that his application was rejected on 9-3-1998 on the ground that he was short in height by 4.5 cms., compared to the prescribed height for the post of conductors.3. the learned counsel for the petitioner sri s. v. ramana contends that there are circulars issued by the 1st respondent-corporation authorising the managing director to relax the eligibility criteria for candidates seeking appointment on compassionate grounds. it is further stated that infact relaxation has been granted in respect of one j. padmavathi, w/o. late j.r. nadan for the post of conductor, who sought compassionate appointment on the death of her husband. it is submitted by the learned counsel that there is no reason why similar treatment should not be given to the petitioner in the matter of relaxation of requirement as to height. the learned counsel appearing for the 1st respondent-corporation sri a. v. sivaiah contends that the relaxation referred to by the learned counsel for the petitioner was granted to an extent of 2 cms., whereas the petilioner is found to be 4.5 cms., short from the prescribed height for the post of the conductors.4. in the absence of any maternal bearing on the question it is difficult to ascertain whether difference in shortage in height by 2 cms. and by 4.5 cms., has really any bearing on the efficiency of the employee appointed to the post of conductors. if such difference does not have any substantial and material bearing on the question of efficiency, there is no reason why the petitioner's case should not be considered on the same grounds on which the cases of other dependants, who sought compassionate appointments, have been considered. it is stated by the learned counsel for the petitioner that he has already made representation dated 31-7-1998 to the managing director of the 1st respondent-corporation seeking relaxation from the requirement of height. the learned counsel for the ist respondent-corporation informs that the managing director will consider the representation of the petitioner in accordance with the relevant applicable criteria.5. considering these circumstances, this writ petition is disposed of with a direction that the managing director of the 1st respondent-corporation shall consider the representation of the petitioner for relaxation as to height for the post of conductor for appointment on compassionate grounds within three months from today.6. the writ petition is disposed of accordingly.

Judgment:
ORDER

1. The petitioner's father was working as a Depot clerk in the 1st respondent Corporation. He died on 13-5-1995. The petitioner, who is his son, gave an application for compassionate appointment in the 1st respondent-Corporation on 17-3-1997. As no action was taken on his application, it appears that the petitioner filed Writ Petition No.15252 of 1997 which was disposed of with a direction to the 1st respondent-Corporation to consider the petitioner's case for appointment for any suitable post.

2. It is stated that in pursuance of the directions, the petitioner was called for an interview for the post of conductor on24-2-1998. It appears that his application was rejected on 9-3-1998 on the ground that he was short in height by 4.5 cms., compared to the prescribed height for the post of conductors.

3. The learned Counsel for the petitioner Sri S. V. Ramana contends that there are circulars issued by the 1st respondent-Corporation authorising the Managing Director to relax the eligibility criteria for candidates seeking appointment on compassionate grounds. It is further stated that infact relaxation has been granted in respect of one J. Padmavathi, W/o. Late J.R. Nadan for the post of conductor, who sought compassionate appointment on the death of her husband. It is submitted by the learned Counsel that there is no reason why similar treatment should not be given to the petitioner in the matter of relaxation of requirement as to height. The learned Counsel appearing for the 1st respondent-Corporation Sri A. V. Sivaiah contends that the relaxation referred to by the learned Counsel for the petitioner was granted to an extent of 2 cms., whereas the petilioner is found to be 4.5 cms., short from the prescribed height for the post of the conductors.

4. In the absence of any maternal bearing on the question it is difficult to ascertain whether difference in shortage in height by 2 cms. and by 4.5 cms., has really any bearing on the efficiency of the employee appointed to the post of conductors. If such difference does not have any substantial and material bearing on the question of efficiency, there is no reason why the petitioner's case should not be considered on the same grounds on which the cases of other dependants, who sought compassionate appointments, have been considered. It is stated by the learned Counsel for the petitioner that he has already made representation dated 31-7-1998 to the Managing Director of the 1st respondent-Corporation seeking relaxation from the requirement of height. The learned Counsel for the Ist respondent-Corporation informs that the Managing Director will consider the representation of the petitioner in accordance with the relevant applicable criteria.

5. Considering these circumstances, this writ petition is disposed of with a direction that the Managing Director of the 1st respondent-Corporation shall consider the representation of the petitioner for relaxation as to height for the post of conductor for appointment on compassionate grounds within three months from today.

6. The writ petition is disposed of accordingly.