Hon'ble Dr. Devendra Kumar Arora, J Heard learned counsel for the petitioner and the learned Standing Counsel.
By means of this writ petition, the petitioner has challenged the order dated 05.11.2008 passed by opposite party no.2-Inspector General of Police/ Director (Telecom), U.P. Police Radio Headquarter, Mahanagar, Lucknow, whereby, petitioner's selection/ candidature for appointment made vide order dated 17.10.1988 has been declared void ab-initio.
Brief facts of this case are that father of the petitioner late Dasrath Singh, who was working on the post of Assistant Operator in Police Radio Section, Police Line, District Azamgarh met with an accident and died in harness on 06.09.1969. At the time of death of his father, petitioner was only 14 months old. Since, the petitioner at the time of his father's death was minor, therefore, on attaining the age of majority, he submitted an application for compassionate appointment in the year 1986 under U.P. Recruitment of Dependents of Government Servants (Dying-in-Harness) Rules, 1974 (in short '1974 Rules') and thereupon, after consideration, the State Radio Officer (Eastern Zone), U.P. Police Radio Headquarter, Lucknow vide letter dated 31.12.1986 informed the petitioner that he was not eligible for being appointed on the post of Workshop Hand due to not having required minimum age of 20 years. The petitioner on attaining the minimum required age, again submitted an application/ representation for his compassionate appointment against the vacant post of Workshop Hand and the opposite party no.2 after getting necessary required permission from the competent authority, selected the petitioner on compassionate ground for the post of Workshop Hand. Vide letter dated 07.10.1988, the petitioner was required to appear for medical examination. After medical examination, the petitioner was issued appointment order dated 17.10.1988 by opposite party no.2 for appointment on the post of Workshop Hand against the substantive vacancy in the pay scale of Rs.330-495 along with other admissible allowances and was posted in the Central Workshop, U.P. Police Radio Headquarter, Mahanagar, Lucknow. The petitioner in pursuance of the appointment order dated 17.10.1988, joined his services on 18.10.1988. After due course of time, the petitioner was promoted on the post of Assistant Operator vide order dated 05.07.1996 and posted at Police Radio Section, Police Line, District Azamgarh. Thereafter, the petitioner was again promoted as Head Operator vide order dated 22.08.1999 issued by opposite party no.3-Deputy Inspector General of Police (Establishment), U.P. Police Headquarter, Allahabad.
In the meantime, this Court at Allahabad passed an interim order on 21.04.2006 in Writ Petition No.11505 of 2006 (Avanish Kumar Vs. State of U.P. and others) requiring the Senior Superintendent of Police/ Superintendent of Police / Commandant of PAC and other Drawing and Disbursing Officers of the various police branches to obtain in writing the particulars of the persons appointed under the provisions of Dying-in-Harness Rules so as to ascertain the genuineness of the compassionate appointment in view of fraudulent compassionate appointments, which were noticed by the High Court and in pursuance of the said directions, the persons appointed on compassionate ground were required to furnish details and accordingly, the petitioner submitted an affidavit on 13.05.2006 giving details of the information as required.
After submission of affidavit, vide letter dated 25.07.2006 issued by the Superintendent of Police, Azamgarh, the salary of the petitioner was withhold in pursuance of interim order passed on 21.04.2006.
Feeling aggrieved against order dated 25.07.2006, the petitioner filed a Claim Petition No.1327 of 2006 before U.P. State Public Services Tribunal, Lucknow, which was decided by the Tribunal vide judgment and order dated 06.03.2007 refusing to entertain the matter.
In the meantime, vide order dated 09.02.2007, the Superintendent of Police, Azamgarh proceeded to remove the petitioner from service in pursuance of letter dated 24.01.2007 issued by opposite party no.3 on the pretext that the father of the petitioner died prior to commencement of the Rules, 1974. Feeling aggrieved, the petitioner approached this Court by filing Writ Petition No.1876 (S/S) of 2007 challenging the order dated 09.02.2007, whereby he was removed from service. This Court vide order dated 23.03.2007 while allowing time to file counter affidavit directed the opposite parties to release the salary of the petitioner in accordance with law and in compliance of the same, the salary of the petitioner was released by the Superintendent of Police, Azamgarh vide order dated 27.04.2007.
It has been clarified by the learned counsel for the petitioner that the State Radio Officer (Administration), U.P. Police Radio, Headquarter, Lucknow issued a show cause notice dated 05.07.2007 requiring the petitioner to explain as to why he may not be dismissed from service due to compassionate appointment being contrary to 1974 Rules. The petitioner submitted detailed explanation on 26.02.2007 especially mentioning therein that the petitioner has now rendered 20 years of service and there was no misrepresentation and concealment on the part of the petitioner and on the basis of the information furnished by the petitioner, the Government took decision for petitioner's compassionate appointment but without appreciating the submission of the petitioner, the petitioner has been removed from services vide order dated 05.11.2008. Therefore, the petitioner approached this Court once again by means of present writ petition and this Court while appreciating the submission of learned counsel for the petitioner and the fact that his appointment is cancelled after long lapse of 20 years on the non existence ground, stayed the operation of the order dated 05.11.2008.
In the meantime, this Court, vide order dated 09.04.2009, while deciding similar controversy as involved in the present writ petition, set- aside the termination order. Against the said order, the State authority preferred Special Appeal No.805 of 2009 (State of U.P. And others Vs. Rudra Pratap Pandey) decided on 19.11.2009. The Division Bench, while affirming the judgment and order dated 09.04.2009 passed by learned Single Judge observed that there is a difference between fraudulent appointment and a wrong appointment. An appointment, if has been obtained fraudulently, is liable to be cancelled may be, even without affording opportunity but if an illegal or incorrect appointment has been made or so to say a wrong appointment has been made, it necessarily would not raise a presumption of fraud being played by the incumbent and that too in connivance with the officers who are responsible in making the appointment, unless and of-course, it is found that some sort of misrepresentation was made by the person concerned and that misrepresentation, which goes to the very eligibility of the candidature was relied upon by the officer concerned and that such an act has resulted into issuance of appointment order, and may be in such a situation, the collusion and connivance of the officer responsible for giving such appointment be also there, for which they can also be proceeded with but where in case the incumbent does not conceal any fact by giving correct description about his eligibility for appointment and after due deliberation by the concerned authority and after consultation with the superior authority, appointment is given, though it could not have been given under the Rules, it cannot be said to be a fraudulent appointment. The Division Bench further observed that the respondent employee has put in more than 20 years of service and it may be that the respondent-employee was not entitled to appointment under the Rules, 1974 though his appointment was made on compassionate ground but looking to the fact that it cannot be treated to be an appointment obtained fraudulently which was made after due deliberations, and after consultation with the Police Headquarter at Allahabad, coupled with the fact that he has been in service for last more than 20 years, dismissed the appeal of the State authority.
Special Leave to Appeal (Civil) No.17027 of 2010 filed against the aforesaid judgment and order dated 19.11.2009 passed by the Division Bench in special appeal has also been dismissed by Hon'ble Apex Court.
It has been submitted by learned counsel for the petitioner that the impugned order has been passed without affording any opportunity of hearing to the petitioner and ignoring about 20 years of continuous regular service rendered by him. It has also been submitted that the case of the petitioner is squarely covered by the judgment and order dated 09.04.2009 passed by the learned Single Judge which has been affirmed by the Division Bench vide order dated 19.11.2009 in special appeal.
Learned Standing Counsel fairly conceded that the case of the petitioner is squarely covered by the judgment and order dated 09.04.2009 passed by learned Single Judge.
On consideration, this Court finds that the petitioner has not obtained the appointment by concealing any material fact or playing fraud though he was not eligible for appointment on compassionate ground but his application was considered. At the first instance, he was denied appointment vide letter dated 31.12.1986, on the ground that he had not attained the minimum age of 20 years for appointment on the post of Workshop Hand. After attaining the required age of 20 years, he again submitted an application/ representation for his appointment on compassionate ground. In pursuance of the said application/ representation, he was directed for medical examination and after medical examination, the petitioner was permitted to resume his duties on 18.10.1988 and in due course of time, he was given promotion twice.
At this juncture, I would like to refer the decision of the Supreme Court in the State of U.P. Vs. Rafique Uddin; SCC 1987 (Supp.) 400. In this case, the Supreme Court found the appointment of several candidates of 1970 examinations (Munsif examinations) illegal being contrary to the Rules. However, considering the facts that the candidates have continued in service around twelve years and some of them even had been promoted on higher posts, the Apex Court refrained from striking their appointments.
As the petitioner was appointed after consideration by the authorities and from the pleadings of the counter affidavit, it does not come that petitioner was given compassionate appointment on any misrepresentation or obtained the appointment fraudulently, this Court comes to the conclusion that the appointment has been given by the authorities on due consideration upon his application and the fact that the petitioner has rendered 20 years continuous service and has also obtained two promotions during service period, the impugned order dated 05.11.2008 passed by opposite party no.2 cannot be sustained in the eye of law and is liable to be quashed. Further, the judgment dated 09.04.2009 has attained finality.
Accordingly, the impugned order dated 05.11.2008 is hereby set aside. The writ petition is allowed. Petitioner will be entitled for all consequential benefits.
Order dated:27.01.2016 akverma