Heard Sri Raj Narain, learned counsel for the petitioner and Sri Pankaj Rai, learned Additional Chief Standing Counsel for the State of U.P.
By means of present writ petition, the petitioner has challenged the validity of the order dated 23.10.2006, passed by the respondent no.4, i.e. Commandent 45th Battalion P.A.C., Aligarh, revisional order dated 15.06.2007 passed by the respondent no.3, the Deputy Inspector General of P.A.C. Agra, Zone, Agra and order dated 25.02.2008 passed by the respondent no.2, the Inspector General of P.A.C., Western Zone, Moradabad. By the impugn order dated 23.10.2006 the appointment of the petitioner dated 21.07.1997 had been cancelled on the ground that petitioner had obtained compassionate appointment concealing the material fact that his elder brother namely Rajvir Prasad had already been given an appointment under Dying in Harness Rules, 1974 (hereinafter referred as "Rule 1974") vide order dated 20.08.1986 on the post of Constable in Civil Police.
The brief facts of the case giving rise to the present writ petition are that the father of the petitioner namely late Komal Prasad Gautam was posted at Aligarh as Head Constable in police department and during his service, he died on 14.12.1978 at Police Line Aligarh. He left behind his wife, two sons namely Rajvir Prasad, Chandra Dutt Gautam (petitioner) and three daughters namely Smt. Mithlesh Devi, Sarvesh, and Pappan.
The mother of the petitioner namely Smt. Shakuntala Devi moved an application before Senior Superintendent of Police, Agra for an appointment of his elder son Rajvir Prasad for the compassionate appointment on the post of Constable, which was accepted and approved by the Senior Superintendent of Police, Agra on 09.06.1986 (the same is brought on record through S.C.A.-1 to the Supplementary Counter Affidavit). In this regard Sri Rajvir Prasad, the elder brother of the petitioner himself moved an application before the Inspector General of Police, Lucknow for compassionate appointment, the same was forwarded for consideration to the Senior Superintendent of Police, Agra(the said application has been brought on record through S.C.A.-2 to the Supplementary Counter Affidavit). In this regard the elder brother of the petitioner filled up an application form for appointment on compassionate ground (the same is brought on record through S.C.A.-3 to the Supplementary Counter Affidavit), on the said application it was clearly mentioned as ^^e`r iqfyl dfeZ;ksa ds vkfJr**. In pursuance to the said application Rajvir Prasad elder brother of the petitioner was directed to the appear for interview alongwith all academic record on 22.06.1986. It is highly important to mentioned that vide letter dated 22.06.1986 the Senior Superintendent of Police, Agra had inform to Sri Rajvir Prasad that you had applied for constable post under "Rule 1974" and by said letter it is also informed to him that candidates those had applied under Rule 1974, they would undergo for weight and measurement on 11.06.1986 and on 22.06.1986, and thereafter, the relevant papers would be scrutinized and finally interview would taken place on 23.06.1986. It had also been informed to him that you have left on 21.06.1986 without any prior information and if you are interested then you report with necessary documents alongwith death certificate of your father, so that your application under compassionate employment could be processed. Immediately, thereafter, Sri Rajvir Prasad, elder brother of petitioner submitted his self attested certificate on 23.06.1986 (the same is brought on record through S.C.A.-5 to the Supplementary Counter Affidavit), by which he had categorically informed to the authority concerned that after the death of his father neither any of the family members has been given an appointment on compassionate ground nor any other family members had moved any application for said purpose (the self attested certificates has also brought on record through S.C.A.-5 to the Supplementary Counter Affidavit). Sri Rajvir Prasad, the brother of the petitioner was directed to appear in the physical test and vide order dated 28.08.1986 the brother of petitioner namely, Rajvir Prasad was given an appointment as constable in Civil Police. The extract of Order Book No. 1551 dated 28.08.1986 is reproduced hereunder:-
fgUnh vkns'k iqfLrdk l0 1551 fnukad 28-08-1986 ,pvksch la0 1551&& e`rd iqfyl lsodks ds vkfJrksa dks dkfu0 fjdzwV ds in ij HkrhZ M0 iz0 iqfyl eq[;ky;] bykgkckn ds i= la0 10&51&86 (1) vkoaVu fnukad 22-08-1986 ds funsZ'k in rFkk T;s"B iqfyl v/kh{kd vkxjk ds i= la0 &bZ&[email protected] fnukad 25-08-1986 ds }kjk e`rd iqfyl lsodksa ds vkfJrksa dks dk0 ds in ij HkrhZ djds izf'k{k.k gsrq tuin vyhx< Hkstk x;k gS ftUgsa T;s"B iqfyl v/kh{kd vyhx< }kjk muds uke ds lkeus vafdr frfFk;ksa ls fu;qDr fd;k x;k gS& 1&nsosUnz flag iq= Lo0 cyohj flag fu0 & xzke fuxksg glu Fkkuk&ldhV ftyk ,Vk dks fn0 25-08-1986 AN ls-
2&jktohj izlkn iq= Lo0 dksey izlkn fu0&xzke glukckn (eaMuiqj) Fkkuk&cjgu ftyk vkxjk dks fnukad 20-08-1986 AN ls-
3&v:.k dqekj iq= Lo0 pUnznRr f}osnh fu0&xzke ukgjkSyh Fkkuk&tSariqj ftyk vkxjk dks fnukad 20-08-1986 AN ls-
4&'kSysUnz dqekj feJk iq= Lo0 vkuUn ^^Lo:i** feJk fu0&xzke o Fkkuk&odsoj ftyk bVkok dks fnukad 20-08-1986 AN ls-
It transpires from the record that in the police department there were huge bungling, while providing compassionate employment to the members of the deceased police personnel. The said bungling was subjected to detailed scrutiny by this Hon'ble Court in writ petition No. 11505 of 2006 (Avanish Kumar Vs. State of U.P. and others).
This Court vide order dated 21.04.2006 had had directed the Police Headquarter, U.P., Allahabad to scrutinize the affidavits of the candidates those had obtained compassionate employment in police department. Thereafter, the Police Headquarter, U.P., Allahabad had issued detailed direction on 28.05.2006 to scrutinize the relevant record and affidavit which were submitted by the candidates.
In pursuance of the direction issued by this Court in Avanish Kumar (supra) the affidavit and other details of the petitioner were also scrutinized, then it had been found that petitioner had moved detailed affidavit on 16.05.2006 and 17.08.2006 by which he had categorically informed that in place of his father no other family member had been given compassionate employment in the police department.
After thorough inquiry a report was submitted, that his elder brother, namely, Rajvir Prasad had been given an appointment under "Rule 1974" in the year 1986 at Agra, and petitioner had concealed this very material facts and succeeded in obtaining an appointment in police department under "Rule 1974".
Learned counsel for the petitioner submitted that elder brother of the petitioner had face the open selection for the post of constable as he had participated in the selection process and had been given an appointment on the post of constable and his elder brother had never applied for an appointment under "Rule 1974". He further submitted that impugned orders are unsustainable as no opportunity was afforded to the petitioner before passing the impugned termination order and also submitted that material facts had been ignored by the Appellate Authority as well as Revisional Authority and impugned orders are liable to be set-aside.
On the other hand learned Additional Chief Standing Counsel had submitted that, a bare perusal of the record, it is apparent that petitioner had concealed the material fact and procured an employment under "Rules 1974" through concealment and fraud which is apparent on the face of record and has also submitted that in the present case the employment had being obtained through fraud and concealment of material fact, therefore, there was no requirement for giving any opportunity to the petitioner. He further submitted that detailed inquiry has been made in pursuance of the direction issued by this Court in Avanish Kumar (supra) and it had been found that there were huge bungling and in most of the cases it has been found that in place of one family member, two or three family members have succeeded an appointment under "Rule 1974".
Learned Additional Chief Standing Counsel further submitted that, the object of compassionate appointment is to give succour to the distressed bereaved family of the sole bread earner so that they are able to tide over the sudden financial crisis. He further submitted that compassionate employment does not give any right, but in present matter the elder brother had already been given an employment under Rule 1974. Therefore, the petitioner had no right, even to claim for compassionate employment.
He has further submitted that in pursuance to order passed by this Court in the Avanish Kumar (supra), by which direction was issued to the Police Headquarter, U.P., Allahabad to scrutinize the affidavits of the candidates those had obtained compassionate employment in the police department. Thereafter, the Police Headquarter, U.P., Allahabad had issued direction on 28.05.2006 to scrutinize the relevant record. Thereafter, it had been found that petitioner had also submitted false affidavit and mentioned that in his family no other person had been appointed under the compassionate rules, in place of his father. A detailed report had been prepared and it had been found that the petitioner's elder brother namely Rajvir Prasad had been given an appointment under the Rules 1974 in the year 1986 at Agra, and the petitioner had concealed this material fact and succeeded in obtaining an appointment in police department under Rules 1974.
Heard the rival submissions of the learned counsel for the parties and perused the records.
It is admitted situation in the matter that the father of the petitioner was working as Head Constable in Civil Police and during his service tenure he died on 14.12.1978 at Police Line Aligarh. Subsequently the mother of the petitioner namely Smt. Shakuntala Devi moved an application before Senior Superintendent of Police, Agra for providing compassionate appointment on the post of Constable to his elder son Rajvir Prasad and finally vide order dated 28.08.1986, the elder brother of the petitioner Rajvir Prasad was given an appointment as Constable, the appointment letter has already been extracted above.
A bare perusal of the appointment letter dated 28.08.1986 it is apparent that in place of his father his elder brother had already been given an appointment on 28.08.1986. The mother of the petitioner had again moved a representation in the year 1996-97 for compassionate employment for her second son (petitioner) and vide order dated 02.07.1997 the petitioner was given an appointment as Constable (Ministerial) and was given a posting at 45th Battalion P.A.C., Aligarh.
This Court vide order dated 21.04.2006 passed a detailed order in writ petition No. 11605 of 2006 (Avanish Kumar Vs. State of U.P. and others) and directed the Police Headquarter, U.P., Allahabad to scrutinize the affidavits of the candidates and other records on the ground that more than one family member of the deceased employee have procured an employment in the police department under "Rule 1974". In pursuance of the order dated 21.04.2006 the Police Headquarter, U.P., Allahabad had scrutinize the affidavits of the candidates and other records and then it has been found that in the case of petitioner he had also obtained an appointment under "Rule 1974" inspite of fact that his elder brother had already been given compassionate appointment as constable in police department, in place of his father.
In these circumstances the impugned orders had been passed and as per the provisions of Appeal & Punishment Rules, 1991 an appeal was also filed, the same was also rejected by order dated 15.06.2007 and thereafter, the petitioner had filed revision which was also rejected by the revisional authorities.
The submission advanced by learned counsel for the petitioner are not tenable on the face of the record, whereas the record reveals that the selection process were going on at Agra to select the eligible candidates, those had applied under the compassionate rules. The true version of the appointment letter as indicated above, would also indicate categorically that the brother of the petitioner was inducted in the Police Department under "Rule 1974".
Learned Additional Chief Standing Counsel has relied the judgment passed in Atro Devi (Smt.) and another Vs. Panjab National Bank and others, reported in 2006 Vol 3 UPLBEC 2442. The relevant para 5 is reproduced herein below:-
"5. The concept of compassionate appointment is an antithesis to the normal recruitment rules and is saved at the altar of Articles 14 and 16 by reasons of humanitarian consideration. The sole object of compassionate appointment is to give succour to the distressed bereaved family of the sole bread earner so that they are able to tide over the sudden financial crisis. It does not require reference to decisions of the Apex Court to say that neither it is a right nor can it be treated an alternative source of recruitment. By giving compassionate appointment, the sole object is to strengthen the financial position of the family which is deprived of the regular salary earned by the deceased sole bread earner. If otherwise, the family, inspite of the demise of the bread winner, is financially comfortably placed, the heirs or the dependent cannot seek compassionate employment as it would amount to violation of the sacrosanct object of the compassionate appointment."
Learned Additional Chief Standing Counsel submitted that, fraud and collusion vitiate every proceeding. In the present matter, it is apparent on the face of record that petitioner had obtained an employment in police department on the basis of fraud and no indulgence is required in the matter.
Learned Additional Chief Standing Counsel has also relied the judgment passed in Smt. Shrisht Dhawan v. M/s Shaw Brothers, reported in AIR 1992 SC 1555. The relevant para 20 is reproduced herein below:-
"20. Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Comus, who exulted in his ability to, 'wing me into the easy-hearted man and trap him into snares'. It has been defined as an act of trickery or deceit. In Webster fraud inequity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public forbids as being prejudicial to another. In Black's Legal Dictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Oxford, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Contract Act defines fraud as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact which he knows to be untrue yet he succeeds in misleading the represented by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it was false. In a leading English Derry v. Peek [1889] 14 App. Cas. 337 case what constitutes fraud was described thus:
"fraud is proved when it is shown that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false."
But fraud in public law is not the same as fraud in private law. Nor can the ingredients which establish fraud in commercial transaction can be of assistance in determining fraud in Administrative Law. It has been aptly observed by Lord Bridge in Khawaja Khawaja v. Secretary of State for Home Deptt., 1983 (1) All England Reports p. 765 that it is dangerous to introduce maxims of common law as to effect of fraud while determining fraud in relation to statutory law. In Pankaj Bhargava (supra) it was observed that fraud in relation to statute must be a colourable transaction to evade the provisions of a statute. 'If a statute has been passed for some one particular purpose, a court of law will not countenance any attempt which may be made to extend the operation of the Act to something else which is quite foreign to its object and beyond its scope Craies on Statute Law, 7th Edition, p. 79.' Present day concept of fraud on statute has veered round abuse of power or malafide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations. The colour of fraud in public law or administrative law, as it is developing, is assuming different shade. It arises from a deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction which otherwise would not have been exercised. That is misrepresentation must be in relation to the conditions provided in a section on existence or non-existence of which power can be exercised. But non-disclosure of a fact not required by a statute to be disclosed may not amount to fraud. Even in commercial transactions non-disclosure of every fact does not vitiate the agreement, 'In a contract every person must look for himself and ensures that he acquires the information necessary to avoid bad bargain Anson's Law of Contract In public law the duty is not to deceive. For instance non-disclosure of any reason in the application under Section 21 of the Act about its need after expiry of period or failure to give reason that the premises shall be required by son, daughter or any other family member does not result in misrepresentation or fraud. It is not misrepresentation under Section 21 to state that the premises shall be needed by the landlord after expiry of the lease even though the premises in occupation of the landlord on the date of application or, after expiry of period were or may be sufficient. A non-disclosure of fact which is not required by law to be disclosed does not amount to misrepresentation. Section 21 does not place any positive or comprehensive duty on the landlord to disclose any fact except that he did not need the premises for the specified period. Even the Controller is not obliged with a pro-active duty to investigate. Silence or non-disclosure of facts not required by law to be disclosed does not amount to misrepresentation. Even in contracts it is excluded as is clear from explanation to Section 17 unless it relates to fact which is likely to effect willingness of a person to enter into a contract. Fraud or misrepresentation resulting in vitiation of permission in context to Section 21 therefore could mean disclosure of false facts but for which the Controller would not have exercised jurisdiction."
In view of the above, it is not a case where the petitioner deserves any discretionary relief under equatable jurisdiction under Article 226 of the Constitution of India. The petitioner was inducted in-disciplinary uniform force and such a person is expected to show a character with utmost honesty, but in the present case an appointment was obtain through fraud by submitting false affidavit.
Therefore, in view of the above, petitioner does not deserves any relief under the facts and circumstances of the case.
In result the writ petition lacks merit and is accordingly dismissed.
Order Date :- 27.8.2014 VKG