Heard both sides.
2.This writ petition arose out of O.A.No.5363 of 1998 filed by the petitioner before the Tamil Nadu Administrative Tribunal. In view of the abolition of the Tribunal, it was transferred to this court and was renumbered as W.P.No.33788 of 2006.
3.The petitioner sought for the issuance of a writ of certiorarified mandamus to call for the records relating to the order of the first respondent dated Nil/6/98 issued in Ref.No.A3 10138/98 and to quash the same and to further direct the respondents to reinstate the applicant with all consequential benefits.
4.The petitioner was given appointment on compassionate ground on the death of his father B.Varadhan, who was serving as an Assistant Director of Agriculture and died on 5.10.1986. The petitioner is the third son of the said Varadhan and at the time of his death, the first son Gopalakrishnan was 25 years old and was serving as Assistant Engineer in TNEB. The second son Santhanakrishnan was working in a private limited company i.e. Western Crompton Company as a Supervisor and was doing private business and at the relevant time, he was 24 years old. The petitioner at the time of death of his father during the year 1986 was only 14 years old and was not eligible for entering into any Government service.
5.The petitioner after a period of nearly 8 years made an application for appointment on compassionate grounds in terms of G.O.Ms.No.155, Labour and Employment Dept., dated 16.7.1993. The petitioner's claim was forwarded by the second respondent without verifying the family status of the petitioner and merely on the no objection certificate given by the first and second sons. On the basis of these documents, the petitioner was appointed as a Junior Assistant on a temporary basis even before scrutinizing the records. At the time when his father died, there are certain landed properties which are also owned by the petitioner. When these facts came to the notice subsequent to the appointment of the petitioner, by an order dated Nil (June, 1998), the petitioner's temporary service was sought to be terminated. The petitioner filed OA No.5363 of 1998 before the Tamil Nadu Administrative Tribunal.
6.The tribunal, by order dated 6.,7.98, granted an interim stay on the ground that the petitioner was not given any opportunity before ordering termination. The said interim order came to be continued until further orders. On behalf of the respondent, a miscellaneous application in MA No.1758 of 1998 was filed for vacating the interim order together with supporting documents. The Tribunal for the reasons best known to it did not take up the said interim application.
7.On notice from the tribunal, the respondents have also filed a reply affidavit, dated 19.7.98. In paragraphs 3 and 4 of the reply, it was averred as follows:
"3....Applicant's father died while in service on 5.10.1986. There are three sons and one daughter to the deceased Government servant. The applicant's first elder brother was well employed as Assistant Engineer in Tamilnadu Electricity Board and getting attractive salary at the time of his death. The applicant's second elder brother was also employed possessing the Mechanical Engineering diploma. Both have not got married at the time of his death. Since they were unmarried at the time of his death, they were expected to maintain their own family even without the assistance of death benefits. At the time of death of applicant's father, all the legal heirs were living together as joint family. Further the applicant's first and second elder brothers have got married only after their father's death. Applicant's first elder brother have got married on 4.5.1988 i.e. after one and half years after his father's death i.e. on 5.10.1986. The applicant's first elder brother got married with Assistant Lecturer in Engineering College at Vellore. The very purpose of G.O.No.155 Labour and Employment Department, dated 16.7.93 termed to save the family from the financial crisis of the deceased Government servant providing job to the legal heir. Based on the facts and figures furnished by the applicant and other legal heirs, the postings has been ordered formally. Putting of mere service is not the criterion for claiming re-entry.
4.The post has been given to the applicant purely on temporary basis and liable for termination when such of contradictions are intervened."
8.However, Mr.R.Muthukannu, learned counsel for the petitioner contended that after his temporary appointment, the petitioner had continued in service for four years and the termination was done without notice to him. He also stated that G.O.Ms.No.155, Labour and Employment Dept., dated 16.7.1993 permits the employment of persons on compassionate ground even if any member of the family who is already employed under special circumstances. Paragraphs 1 and 3 of the order, dated 16.7.1993 may be usefully extracted below:
"1.....Another condition introduced in the G.O. third read above is that if there is already any earning member in the family of the Government servant who died in harness, the other dependants of the deceased Government servant will not be eligible for compassionate appointment.
....
3.In regard to the second condition mentioned in para 1 above, it is considered that if a member of the family is already in employment and supports the family then the restriction may be applied. When a dependant of the family is employed, the factors to be ascertained are, whether he is regularly employed and is actually supporting the family. If that person was employed even before the death of the Government servant and was living separately without extending any help to the family, then the case of other eligible dependants will be considered."
9.He also placed reliance upon the judgment of the Supreme Court in Union of India v. K.P. Tiwari reported in (2003) 9 SCC 129 and relied upon the following passage found in paragraph 4 of the said order, which is as follows:
4. It is unnecessary in this case to examine either questions of law or fact arising in the matter. Suffice to say that the respondent has been appointed now and has been in service for more than five years. We do not think, it would be appropriate to disturb that state of affairs by making any other order resulting in uprooting the respondent from his livelihood.
10.It must be noted that the K.P.Tiwari's case (cited surpa) came to be considered by the Supreme Court subsequently and the reasoning found in that case was not followed and in fact, the reasoning found there, were explained by referring to all the other decisions arising out of matter relating to compassionate appointments vide decision in State of Haryana v. Ankur Gupta reported in (2003) 7 SCC 704. In paragraphs 4 to 10, the Supreme Court observed as follows:
4. Learned counsel for the appellant State submitted that the approach of the High Court is erroneous. When the appointment was made in violation of the policy, and by mistake the respondent had been appointed, that does not confer any legal right upon him. In response, learned counsel for the respondent submitted that as rightly observed by the High Court, there was no misrepresentation or fraud practised by the respondent in gaining employment. The respondent has worked for more than 4 years and in view of what has been stated by this Court in Union of India v. K.P. Tiwari1, jurisdiction under
Article 136 of the Constitution of India, 1950 (in short the Constitution) should not be exercised.
5. We find that the appointment, admittedly, was not permissible in view of the policy which came into force from 22-8-1996. The earlier policy was changed in view of a decision of the High Court. The correctness of the policy decision was not under challenge.
6. As was observed in State of Haryana v. Rani Devi2 it need not be pointed out that the claim of the person concerned for appointment on compassionate ground is based on the premise that he was dependent on the deceased employee. Strictly, this claim cannot be upheld on the touchstone of
Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right. Die-in-Harness Scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased employee. In Rani Devi case2 it was held that the scheme regarding appointment on compassionate ground if extended to all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on constitutional grounds. In LIC of India v. Asha Ramchhandra Ambekar3 it was pointed out that the High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplate such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana4 that as a rule, in public service appointments should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of the employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased.
7. In Director of Education (Secondary) v. Pushpendra Kumar5 it was observed that in the matter of compassionate appointment there cannot be insistence for a particular post. Out of purely humanitarian consideration and having regard to the fact that unless some source of livelihood is provided the family would not be able to make both ends meet, provisions are made for giving appointment to one of the dependants of the deceased who may be eligible for appointment. Care has, however, to be taken that provision for grant of compassionate employment which is in the nature of an exception to the general provisions does not unduly interfere with the right of those other persons who are eligible for appointment to seek appointment against the post which would have been available, but for the provision enabling appointment being made on compassionate grounds of the dependant of the deceased employee. As it is in the nature of exception to the general provisions, it cannot substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision.
8. These aspects have been highlighted by this Court in a recent decision in State of Manipur v. Md. Rajaodin6.
9. Above being the legal position, the logic of the policy cannot be undermined. Coming to the question whether there was any fraud or misrepresentation, we find that right from the beginning, the officers concerned were acting in a manner contrary to the policy. When the Director of Industrial Training and Vocational Education, Haryana wrote to the Commissioner and Secretary, Industrial Training and Vocational Education Department, Haryana Government, on 22-5-1997, it was clearly indicated that the mother of the respondent was already in government service. It was also noted that according to the government instructions only those dependants of the deceased employee/officer whose family income is up to Rs2500 per month can be appointed. In the letter itself it is mentioned that the monthly salary of the respondents mother was Rs5880 and, therefore, there was no scope for appointing the respondent. Having said so, it was indicated that relaxation may be given in his case. The High Court proceeded on the basis as if there was relaxation of the stipulations. No provision could be shown to us whereby relaxation is permissible, particularly when the policy in this respect was modified on the basis of and in implementation of the decision of the High Court. Though the learned counsel for the respondent referred to the 1970 guidelines where there was scope for relaxation, the same does not assist the respondent because that was operative at a point of time when the policy dated 22-8-1996 notified to be in line with the High Courts judgment was not in operation.
10. Looked at from any angle, the view of the High Court is indefensible. The judgment of the High Court is, therefore, set aside. But while allowing the States appeal, it cannot be lost sight of that the respondent was in government service for more than about four years. It is stated by the learned counsel for the respondent that he has already become overaged for government employment. In the peculiar circumstances, in case the respondent applies for a job in the Government within a period of two years and is selected dehors the compassionate appointment scheme, the question of his having crossed the age bar, would not stand in his way and the service rendered by him shall be duly considered. The appeal is allowed subject to the aforesaid observations. Costs made easy.
11.Thereafter, the learned counsel placed reliance upon the judgment of this Court in R.Bharathi Vs. The Secretary to Government and another reported in 2009 Writ L.R. 593. In that case, the learned Judge of this court after referring to K.P.Tiwari's case and D.M.Premakumari's case reported in 2009 (2) Supreme 271 and granted relief by setting aside the order of termination and allowed the candidate to continue in office notwithstanding her disentitlement to hold office.
12.It must be stated that the learned Judge did not take note of the fact that K.P.Tiwari's case cannot be held to be a good law and the Premakumari's case arose out of cancellation of community certificate and relief was granted by the Supreme Court by its exercise of power under
Article 142 as found in paragraph 16 of the judgment, which is as follows:
"16.In view of the above discussion and keeping in view the peculiar facts and circumstances of the case, we dispose of this appeal, without going into the merits of the case. In order to do completed justice, we direct the respondents herein, not to dislodge the appellant from the post of primary school teacher. This order of ours shall not be treated as a precedent in any other case."
13.Though the learned judge had stated that notwithstanding the caution expressed by the Supreme Court, the same direction can be taken to be a binding precedent for the High Courts to follow, this Court respectfully disagree with such defines of the caution expressed by the Supreme Court.
14.It must be stated that directions given by the Supreme Court by virtue of power under
Article 142 of the Constitution cannot be a binding precedent for the High Courts to follow the same. The Supreme Court has emphasized that the power given to the Supreme Court under
Article 142 is not available to the High Court exercising power under
Article 226 of the constitution.
15.In this context, the following two decisions of the Supreme Court may be usefully referred to.
16.The Supreme Court in Sanchalakshri v. Vijayakumar Raghuvirprasad Mehta reported in (1998) 8 SCC 245 in paragraph 8 observed as follows:
"8.Learned counsel for Respondent 1 relying upon the decision of this Court in Bhagat Ram v. State of H.P.2 submitted that penalty not commensurate with the gravity of the misconduct has to be considered as violative of
Article 14. He further submitted that dismissal from service being an economic death, such a severe punishment ought not to have been imposed upon Respondent 1 when by his said acts, he was not to gain any additional financial benefit. Whether he was likely to gain anything or not thereby did not have much bearing on the gravity of the misconduct. The acts committed by him constituted not only a serious misconduct but also a serious criminal offence. Learned counsel also relied upon the earlier-quoted observations made by Hansaria, J. in B.C. Chaturvedi case1. Really, they have no relevance to the facts of this case. This is not a case where the High Court/Tribunal found any difficulty in granting an appropriate relief to Respondent 1 because of some technicality of rules or procedure even though justice demanded it. Moreover, the said observations are no more than an expression of a personal view. What is to be noted is that Hansaria, J. agreed with what the other two learned Judges held as regards the powers of the High Court/Tribunal to interfere with the order of penalty passed by the disciplinary authority. Therefore, it would not be correct to say that this Court in B.C. Chaturvedi case1 has accepted the view that the High Courts/Tribunals possess the same power which this Court has under
Article 14. of the Constitution for doing complete justice, even in the absence of such a provision.
17.The Supreme Court in C.M. Singh v. H.P. Krishi Vishva Vidyalaya reported in (1999) 9 SCC 40 in paragraph 5 observed as follows:
"5. The High Court quoted in its judgment from the decision of this Court in the case of Rekha Chaturvedi1 but it would appear that it did not realise the import of these sentences:
There is also no record before us to show as to how the Selection Committee had proceeded to weigh the respective merits of the candidates and to relax minimum qualifications in favour of some in exercise of the discretionary powers vested in it under the University Ordinance. If the considerations which weighed with the Committee in relaxing the requisite qualifications were valid, it would result in injustice to those who have been selected. These sentences show that the Selection Committee there had discretionary powers vested in it under the University Ordinance to relax the requisite qualifications. There is nothing on record before us to show that the Selection Committee in the instant case had discretionary powers to relax the qualifications of the candidates, or that it had exercised them. Apart therefrom, the language employed by this Court in Rekha Chaturvedi case1 would suggest that this Court was employing the powers conferred on it under
Article 142 to do complete justice. The High Court does not have such powers. Having found on merits in favour of the writ petitioners we do not think that the High Court was justified in declining any relief to them.
18.Further, even in the matter of cancellation of community certificates cases, the Supreme Court expressed its strong disapproval for grant of relief to such of those persons who have acquired employment/degree on fake community certificates. A reference may be made to the judgment of the Supreme Court in Addl. G.M.-Human Resource, Bharat Heavy Electricals Ltd. v. Suresh Ramkrishna Burde reported in (2007) 5 SCC 336. In paragraphs 12 to 14 of the said judgment, it was observed as follows:
12. In R. Vishwanatha Pillai v. State of Kerala2 which we have referred to earlier, the case of the employees son, who got admission in an engineering college against a seat reserved for Scheduled Caste, was also considered. The admission in the engineering college was obtained in 1992 and he completed the course in 1996 though under the interim order of the High Court. The appeal was decided by this Court on 7-1-2004. Placing reliance upon para 38 of the judgment in Milind1 this Court observed that no purpose would be served in withholding the declaration of the result on the basis of examination already taken by the student or depriving him of the degree in case he passes the examination. It was accordingly directed that the students result be declared and he be allowed to take his degree with the condition that he will not be treated as Scheduled Caste candidate in future either in obtaining service or for any other benefits flowing from the caste certificate obtained by him and he shall be treated to be a person belonging to General category.
13. The principle, which seems to have been followed by this Court is, that, where a person secures an appointment on the basis of a false caste certificate, he cannot be allowed to retain the benefit of the wrong committed by him and his services are liable to be terminated. However, where a person has got admission in a professional course like engineering or MBBS and has successfully completed the course after studying for the prescribed period and has passed the examination, his case may, on special facts, be considered on a different footing. Normally, huge amount of public money is spent in imparting education in a professional college and the student also acquires the necessary skill in the subjects which he has studied. The skill acquired by him can be gainfully utilised by the society. In such cases the professional degree obtained by the student may be protected though he may have got admission by producing a false caste certificate. Here again no hard-and-fast rule can be laid down. If the falsehood of the caste certificate submitted by the student is detected within a short period of his getting admission in the professional course, his admission would be liable to be cancelled. However, where he has completed the course and has passed all the examinations and acquired the degree, his case may be treated on a different footing. In such cases only a limited relief of protection of his professional degree may be granted.
14. In the case in hand the respondent got appointment on 31-5-1982 on a post, which was reserved for a member of Scheduled Tribe. On receiving complaints the employer referred the matter to the District Collector, Nagpur and also to the Scrutiny Committee in March 1991. The subsequent period has been spent in making enquiry and in litigation as the respondent filed three writ petitions. In view of the principle laid down by this Court we are clearly of the opinion that his services were rightly terminated by the appellant and the High Court was in error in directing his reinstatement. The order passed by the High Court, therefore, has to be set aside.
19.Mr.R.Muthukannu, learned counsel for the petitioner thereupon placed reliance upon the decision of this Court in The District Collector and other Vs. J.Jagaraja and another reported in 2002 Writ L.R. 446 and placed reliance upon paragraph 9 of the said judgment, which is as follows:
"9....The Tribunal had allowed the Original Application mainly on the ground of violation of principles of natural justice. In the peculiar facts and circumstances of the case, even though the first respondent was a temporary government servant, we are of the view that before terminating his services on the assumption that there had been misrepresentation of facts, principles of natural justice should have been followed."
20.But, it must be noted that in that case, the Division Bench only confirmed the orders of the Tribunal on the ground that the Tribunal did not commit any error of law apparent on the fact of the record and therefore, refused to exercise its discretionary jurisdiction. But the principle stated in the above division bench judgment runs diametrically opposite to the principle laid down by the Supreme Court in a similar circumstances vide its decision in A.P. Social Welfare Residential Educational Institutions v. Pindiga Sridhar reported in (2007) 13 SCC 352. In paragraph 7 of the said order, the Supreme Court observed as follows:
7. The High Court on the basis of the erroneous view upset the well-merited judgment of the learned Single Judge. By now, it is well-settled principle of law that the principles of natural justice cannot be applied in a straitjacket formula. Their application depends upon the facts and circumstances of each case. To sustain the complaint of the violation of principles of natural justice one must establish that he was prejudiced for non-observance of the principles of natural justice. In the present case, the fact on which the appellant terminated the services of the respondent appointed on compassionate ground was admitted by the respondent himself that when he applied for the post on compassionate ground by his application dated 6-5-1996, his mother was in service. So also when he secured the appointment by an order dated 22-11-2002 his wife was in service since 3-8-1997 as Extension Officer in Rural Development and later on promoted as Mandal Parishad Development Officer at the time when he was appointed on compassionate ground. These facts clearly disclose that the appointment on compassionate ground was secured by playing fraud. Fraud cloaks everything. In such admitted facts, there was no necessity of issuing show-cause notice to him. The view of the High Court that termination suffers from the non-observance of the principles of natural justice is, therefore, clearly erroneous. In our view, in the given facts of this case, no prejudice whatsoever has been caused to the respondent. The respondent could not have improved his case even if a show-cause notice was issued to him.
21.Mr.R.Muthukannu, learned counsel for the petitioner submitted that since the petitioner had worked four years before the order of termination and had continued in service for the last 10 years, his employment should be saved at least on grounds of sympathetic. This Court is afraid that such a consideration do not have a place when an appointment has been secured contrary to the rules. It is therefore, necessary to refer to the decision of the Supreme Court in State of W.B. v. Banibrata Ghosh reported in (2009) 3 SCC 250. In paragraphs 31 and 32 of the said judgment, the contention raised similar to the present case has been rejected by the Supreme Court and hence it is necessary to reproduce those paragraphs:
31. Shri Ghosh, learned Senior Counsel, appearing for the respondents, at this stage, says that we should take a compassionate view of the matter, since as a result of this judgment, the respondent would be thrown in a state of unemployment. We are afraid, we cannot show any such misplaced sympathy, which was shown by the Division Bench. We are told at the Bar that this Court had issued directions to make the payment of salaries and some payments have been made to the respondent. We direct that such payments shall not be recovered from the respondent.
32. Considering that the writ petition remained pending for 10 years and thereby, the respondent might now have become barred by age for fresh employment, we recommend that the Government may consider the condonation of the age bar, if any, on the part of the respondent. We accordingly set aside the judgment of the Division Bench and restore that of the learned Single Judge and allow the appeal but without any order as to costs.
22.It must be noted that in the present case at the time of the death of the petitioner's father, he was only 14 years old and was not eligible for any appointment on compassionate grounds as per the rules. Even otherwise, it cannot be said that his family was under indigent circumstances due to the death of the father since his two of the elder brothers were comfortably employed and they also own some landed properties. It must be noted that the employment assistance on compassionate ground is exception to Articles 14 and 16 of the Constitution and any appointment can be made only strictly in accordance with the scheme in existence at the time of the death of a Government servant. The petitioner was only appointed on temporary grounds and by virtue of the interim order of the tribunal, he cannot have a vested right to hold the post. When the facts are very clear, there was a question of any notice being given to the petitioner before dispensing with his service as his initial appointment itself is invalid.
23.At the time of the death of his father, the petitioner was a minor during the year 1986 and he got the compassionate appointment only after a period of eight years from the date of death of his father. Such a grant of employment defeat the very purpose of the compassionate appointment provided by the State. In this context, it is necessary to refer to certain decisions of the Supreme Court which will have the bearing on this issue:
24.In Umesh Kumar Nagpal v. State of Haryana and others [1994 (4) SCC 138 : 1995ILLJ 798], it was noted that as a rule in public service, appointment should be made strictly on the basis of open invitation of application and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of the employee while in service leaving his family without any means livelihood. In such cases, the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased.
25.In Punjab National Bank v. Ashwini Kumar Taneja, [(2004) 7 SCC 265], the Supreme Court observed that appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement of making appointments on open invitation of application on merits. The basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crisis.
26.In State of Haryana and others v. Rani Devi and another [AIR 1996 SC 2445 : 1996 (5) SCC 308], the Supreme Court observed as follows:
It was also impressed that appointments on compassionate ground cannot be made after lapse of reasonable period which must be specified in the rules because the right to such employment is not a vested right which can be exercised at any time in future.
27.In Sanjay Kumar v. State of Bihar and others [(2000) 7 SCC 192], the Supreme Court has expressly held that there cannot be reservation of a vacancy till such time as the applicant becomes a major after a number of years, unless there are some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief. An application made after the period stipulated under the scheme is not maintainable, and it is not permissible to hold that such application could be made after attaining majority.
28.In the light of the above, the writ petition filed by the petitioner deserves to be dismissed and accordingly, the same stands dismissed. However, there will be no order as to costs. But at the same time, this court will have to grant the same relief as was done by the Supreme Court in State of Haryana case (cited supra) (2003) 7 SCC 704 in paragraph 10, which is as follows:
10....In the peculiar circumstances, in case the respondent applies for a job in the Government within a period of two years and is selected dehors the compassionate appointment scheme, the question of his having crossed the age bar, would not stand in his way and the service rendered by him shall be duly considered. The appeal is allowed subject to the aforesaid observations.
The Supreme Court in State of West Bengal's case (cited supra) in paragraph 32 observed as follows:
32.Considering that the writ petition remained pending for 10 years and thereby, the respondent might now have become barred by age for fresh employment, we recommend that the Government may consider the condonation of the age bar, if any, on the part of the respondent...."
The petitioner also will have the benefit of the similar observation.
vvk To
1.The Joint Director of Agriculture, Tiruvannamalai.
2.The Director of Agriculture, Chepauk, Chennai.
3.The Secretary to Government, Agriculture Department, Fort St. George, Chennai.
4.Agriculture Development Officer, Agriculture Extension Centre, Chetpet, Chennai