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Friday, May 13, 2016

the appellant being the brother of the deceased was not entitled to claim compassionate appointment. His services were, therefore, terminated on this ground. whether correct ? = there was no justification on the part of the State to woke up after the lapse of 15 years and terminate the services of the appellant on such ground. In any case, we are of the view that whether it was a conscious decision of the State to give appointment to the appellant as we have held above or a case of mistake on the part of the State in giving appointment to the appellant which now as per the State was contrary to the policy as held by the learned Single Judge, the State by their own conduct having condoned their lapse due to passage of time of 15 years, it was too late on the part of the State to have raised such ground for cancelling the appellant’s appointment and terminating his services. It was more so because the appellant was not responsible for making any false declaration and nor he suppressed any material fact for securing the appointment. The State was, therefore, not entitled to take advantage of their own mistake if they felt it to be so. The position would have been different if the appellant had committed some kind of fraud or manipulation or suppression of material fact for securing the appointment. As mentioned above such was not the case of the State.



                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.4815 OF 2016
                    (ARISING OUT OF SLP(C) NO.11928/2015)


      Md. Zamil Ahmed                              Appellant(s)


                             VERSUS


      The State of Bihar & Ors.                    Respondent(s)



                               J U D G M E N T


Abhay Manohar Sapre, J.
1)    Leave granted.
2)    This appeal is filed  against  the  final  judgment  and  order  dated
20.12.2013 of the High Court of Judicature at Patna in  L.P.A.  No.  758  of
2013 whereby  the Division Bench of the  High  Court  dismissed  the  appeal
filed by the appellant herein against the  order  dated  08.11.2010  of  the
learned Single Judge of the High Court in  C.W.J.C.  No.  5713  of  2006  in
which it was held that the appellant being the brother of the  deceased  was
not  entitled  to  claim  compassionate  appointment.   His  services  were,
therefore, terminated on this ground.
3)    In order to appreciate the short issue involved in this appeal, it  is
necessary to state a few relevant facts:
4)    One Mohd. Rashid Alam, who was working  as  a  Constable  in  District
Police Force, was killed  while  on  security  duty.   He  left  behind  his
illiterate wife and four minor children.  Since there  was  no  one  in  the
family to support the widow  and  the  minor  children,  the  widow  of  the
deceased submitted a petition to the State (Police Department) enclosing  an
affidavit giving assurance by the appellant,  who  is  the  brother  of  the
deceased, that he would support the widow and  the  minor  children  of  the
deceased constable if  he  is  given  appointment.   Accordingly,  Memo  No.
1267/P-02 dated 29.02.1991 was issued by the Director General of  Police  to
appoint the appellant.  Vide D.O. No. 1248/91, the appellant  was  appointed
as constable w.e.f. 02.05.1991 after being declared  medically  fit  on  the
post of Constable in the scale of 950-20-1150-25-1400.
5)    Thereafter the appellant successfully completed his recruits  training
course and since then he had been performing satisfactory duties in  various
districts and also taking care of the illiterate widow and four children  of
the deceased constable. The appellant also, in  the  meantime,  got  married
two daughters of the deceased constable.
6)    After 15 years of service, on 04.06.2005,  the  appellant  received  a
show cause notice from the senior Superintendent of Police, Patna.   In  the
show cause notice,  it was stated that why the appellant’s services  be  not
terminated because  he  being  a  “devar  (brother  of  deceased)”  was  not
included in the definition of dependent of the deceased and  hence  was  not
eligible to claim compassionate appointment in the State services.
7)    On 10.06.2005, the appellant gave  his  explanation  and  stated  that
ever since his appointment in February 1991, he has been looking  after  the
widow and four children of the deceased constable. He  gave  them  education
and still maintaining the family of deceased as  Head  of  the  family.   He
also explained that his dismissal, after  15  years  of  satisfactory  duty,
would cause  undue  hardship  to  the  widow  and  family  of  the  deceased
constable because even as on today,  there  is  no  earning  member  in  the
family.
8)    The  senior  Superintendent  of  Police,  Patna  did  not  accept  the
explanation offered by the appellant and  terminated  the  services  of  the
appellant on 23.06.2005 holding his appointment on compassionate  ground  to
be illegal and against the policy.
9)    Aggrieved by the said order, the appellant filed an appeal before  the
Inspector General of Police on 01.08.2005.
10)   Since the appeal was not decided by the Inspector General  of  Police,
the appellant filed
petition being Writ Petition No. 5713 of 2006  before  the  High  Court  for
quashing the order of termination passed by  the  senior  Superintendent  of
Police, Patna with a further prayer to reinstate him with all  consequential
benefits  or in the alternative to direct  the  authorities  to  decide  the
appeal filed by him.  By order dated 08.11.2010, the  learned  Single  Judge
dismissed the petition.  It was held  that  it  was  a  case  of  a  mistake
committed by the authorities while giving such benefit to the appellant  and
hence this is a fit case for termination of appellant’s services.
11)   Being aggrieved by the aforesaid order, the appellant filed an  appeal
being L.P.A. No. 758 of 2013.   By  order  dated  20.12.2013,  the  Division
Bench upheld the order  of  the  learned  Single  Judge  and  dismissed  the
appeal.
12)   Against the said order, the appellant has filed this appeal by way  of
special leave before this Court.
13)   We heard the learned counsel for the parties.
14)   Keeping in view the peculiar undisputed facts of the case  and  having
regard to the totality of the circumstances, we are of the  considered  view
that the State was not justified in terminating  the  appellant's  services.
In  other  words,  the  ground  on  which  the  appellant's  services   were
terminated  by  the  State  after  a  period  of  15  years  of  appellant's
appointment does not appear  to  be  well  founded.  This  we  say  for  the
following reasons:
15)   Firstly, the appellant and  wife  of  the  deceased  at  the  time  of
seeking compassionate appointment did not conceal any  fact  and  nor  filed
any false or incorrect document/declaration. On  the  other  hand,  both  of
them disclosed their true family relations and conditions prevailing in  the
deceased family on affidavit.
16)    Secondly,  the  appellant,  who  is  the  brother  of  the  deceased,
undertook to maintain the family  of  the  deceased  in  the  event  of  his
securing the compassionate appointment and he  accordingly  also  gave  such
undertaking to the State.
17)   Thirdly,  there was no one in the family  of  the  deceased  to  claim
compassionate appointment except the appellant who, as mentioned above,  was
the close relative of the deceased, i.e., real younger brother and  used  to
live with the deceased. He was otherwise eligible to claim such  appointment
being major, educated and only male member in the family.
18)   Fourthly, the  appellant  after  securing  the  employment  throughout
maintained the family of the deceased in all  respects  for  the  last  more
than 15 years and he is continuing to do so.
19)   In the light of aforementioned reasons, which  rightly  persuaded  the
State to grant compassionate appointment to the appellant, we  do  not  find
any justification on the part of the State to dig out the  appellant's  case
after 15 years of his appointment and terminate his services on  the  ground
that as per the  State  policy,  the  appellant  did  not  fall  within  the
definition of the expression "dependent of deceased" to claim  compassionate
appointment.
20)   The fact that the appellant was younger brother of  the  deceased  was
within the knowledge of the State. Similarly, the State was aware  that  the
brother does not fall within the definition of  dependent  at  the  relevant
time and still the State  authorities  obtained  the  undertaking  from  the
appellant that he would maintain the family of the deceased once  given  the
appointment.
21)   In our considered view, the aforesaid facts would  clearly  show  that
it was a conscious decision taken by the State for giving an appointment  to
the appellant for the benefit of the family  members  of  the  deceased  who
were facing financial hardship due to sudden demise of their  bread  earner.
The appellant being the only close relative of the deceased could  be  given
the appointment in the circumstances prevailing in the family. In our  view,
it was a right decision taken by the State as a welfare state  to  help  the
family of the deceased at the time of need of the family.
22)   In these  circumstances,  we  are  of  the  view  that  there  was  no
justification on the part of the State to woke up  after  the  lapse  of  15
years and terminate the services of the appellant on  such  ground.  In  any
case, we are of the view that whether it was a  conscious  decision  of  the
State to give appointment to the appellant as we have held above or  a  case
of mistake on the part of the State in giving appointment to  the  appellant
which now as per the State was  contrary  to  the  policy  as  held  by  the
learned Single Judge, the State by their own conduct having  condoned  their
lapse due to passage of time of 15 years, it was too late  on  the  part  of
the State  to  have  raised  such  ground  for  cancelling  the  appellant’s
appointment and terminating  his  services.  It  was  more  so  because  the
appellant was not responsible for making any false declaration  and  nor  he
suppressed any material fact for securing the appointment.  The  State  was,
therefore, not entitled to take advantage of their own mistake if they  felt
it to be so. The position would have been different  if  the  appellant  had
committed some kind of fraud or  manipulation  or  suppression  of  material
fact for securing the appointment. As mentioned above such was not the  case
of the State.
23)   It is for this reason, we are of the view that action on the  part  of
welfare State in terminating the appellant's service on such  ground  cannot
be countenanced. We, therefore, disapprove the action taken by the State.
24)   In the light of foregoing discussion, we allow the appeal,  set  aside
the impugned orders and in consequence allow the writ petition filed by  the
appellant (writ petitioner) and  quash  the  appellant's  termination  order
dated 23.06.2005 (Annexure -P-4 of SLP).
25)    As  a  consequence  thereof,  the  respondent-State  is  directed  to
reinstate the appellant in service with all consequential benefits  such  as
payment  of  full  back  wages  payable  from  the   date   of   termination
(23.06.2005) till the date of reinstatement in  service.  The  appellant  is
also entitled to claim his seniority and notional promotions as  per  rules.
It be fixed accordingly.
26)   Let the appellant be reinstated in service within a month as an  outer
limit and the arrears of back wages, as directed, be paid to  the  appellant
within three months by the respondent-State.
27)   Cost of this appeal is quantified at Rs.5000/- and the  same  be  paid
to the appellant by the respondent-State along  with  the  arrears  of  back
wages.


.……...................................J.
                                     [J. CHELAMESWAR]


                     ………..................................J.
                                      [ABHAY MANOHAR SAPRE]
      New Delhi,
      May 05, 2016.
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