IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.10.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.33031 OF 2006 (O.A.NO.5961 OF 1998) M.Sankar .. Petitioner Vs. 1.The Additional Director of Medical and Rural Health Services (Administration), Office of the Director of Medical and Rural Health Services, D.M.S. Complex, Chennai-6. 2.The Director of Medical and Rural Health Services, D.M.S. Complex, Chennai-6. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records in pursuant to the impugned removal order issued by the first respondent in Proc.Ref.No.66409/SC1/3/97, dated 8.6.1998 and to quash the same and consequently, to direct the respondents to reinstate the applicant in service with full backwages and other consequential service benefits. For Petitioner : Mr.S.M.Subramanian For Respondent : Mr.R.Neelakandan, GA - - - - ORDER
Heard both sides.
2.The petitioner, who was working as a Store Keeper under the control of the second respondent, filed O.A.No.5961 of 1998 before the Tribunal, seeking to challenge the order, dated 8.6.98 passed by the first respondent, wherein and by which, he was removed from service on the ground that he gave false documents to get employment from the Government and by suppressing the fact about his mother being employed at the time of the death of his father. Pending the O.A., the Tribunal did not grant any interim order.
3.On notice from the Tribunal, the respondents have filed a reply affidavit, dated 21.8.1998. In view of the abolition of the Tribunal, the matter stood transferred to this court and was renumbered as W.P.No.33031 of 2006.
4.The petitioner’s father, who was working as a Sanitary Worker in the Government Headquarters Hospital at Salem, died on 19.1.1976. The petitioner applied for an employment assistance on compassionate ground. The petitioner was directed to produce a Indigent Circumstances certificate to examine the genuineness of his request. He obtained the certificate from the Tahsildar and V.A.O., Salem, in which it was stated that persons whose names were found in the legal heir certificate, were not employed either in Government’s service or in private employment. Based on the said certificate, the petitioner was appointed as a Junior Assistant and joined duty at the Government Hospital, Rasipuram on 24.2.1993. He was transferred to work under the Government Primary Health Centre, Kannankurichi, Salem as a Store Keeper.
5.However, it was later claimed by the Deputy Director of Medical and Rural Health Services and Family Welfare, Salem that the petitioner’s mother P.Kuppammal, wife of late P.Manickam, was already working as a Female Nursing Assistant in the Government Mohan Kumaramangalam Hospital, Salem, even at the time of death of her husband. It was stated that the certificate produced by the petitioner that his family was under indigent circumstances and there was no income for his mother was false.
6.A charge memo under Rule 17(b) of the Tami Nadu Civil Service (Discipline and appeal) Rules was framed and the petitioner was placed under suspension by an order, dated 7.8.97. As against the suspension, the petitioner filed O.A.No.6783 of 1997 before the Tribunal. Thereafter, an enquiry was conducted and based on the materials gathered during the enquiry, the petitioner was removed from service. It is against this order, the present OA was filed.
7.The petitioner contended that G.O.Ms.No.155, Labour and Employment Department, dated 16.7.1993 provides for employment assistance even if another member of the deceased Government servant’s family was employed after ascertaining the relevant factors. The petitioner claimed that after the death of his father, he was not cared by his mother and he was under indigent circumstances. Since the petitioner had already served for several years from 12.2.1993, he should not be removed from service.
8.In response to these contentions, in the reply affidavit, it was stated that the petitioner never informed about his mother’s employment in the Government service and also he did not produce any material that he was living separately from his mother. The interpretation placed by the petitioner regarding the Government Order in G.O.Ms.No.155, Labour and Employment Department, dated 16.7.1993 was erroneous. It is only when a member of a family was already in employment and did not support his family and was living even before the death of the Government servant separately without extending any help, the question of eligibility of the dependent for an employment assistance will arise.
9.The learned counsel for the petitioner placed reliance upon the judgment of this court in W.Ruben Franklin Vs. Government of Tamil Nadu and others reported in 2008 (5) MLJ 1322. He referred to the following passages found in paragraphs 17 and 18 of the said judgment, which are as follows:
“17.Considering the submissions made by the learned counsels appearing for the parties concerned, this Court is of the considered view that the appointment of the petitioner as a BT assistant on compassionate grounds, by an order, dated 5.11.1990, cannot be nullified by the subsequent impugned order of the third respondent, dated 21.3.2006. The appointment of the petitioner, on 5.11.1990, was based on the particulars given by the petitioner and it has not been shown by the respondents that the particulars given by the petitioner are wrong or misleading. There has been no misrepresentation by the petitioner with regard to the relevant details, which were necessary for the respondents to pass the order appointing the petitioner. When it was found by the respondents, based on the certificate issued by the Tahsildar, that the petitioner and the members of his family were in indigent circumstances and when his appointment had been made, based on such finding it may not be open to the respondents to find fault in the petitioner’s appointment at this point of time. The show cause notice, dated 31.10.1997, has been issued after nearly 7 years from the date of his appointment. Further, it has not been shown by the respondents that the appointment is illegal or contrary to the established scheme relating to appointment on compassionate grounds. When the Chief Educational Officer had recommended the case of the petitioner for appointment on compassionate grounds by his proceedings, dated 29.5.1990 and the petitioner’s appointment had been made by the proceedings, dated 5.11.1990, the respondents would be estopped from raising the plea of disqualification of the petitioner for such appointment after a lapse of 7 long years. Further, it is seen from the records available that this Court, by an interim order, dated 27.4.2006, made in W.P.M.P.No.11361 of 2006 in W.P.No.10040 of 2006, had granted an order of interim stay of the impugned order of the third respondent, dated 21.3.2006, removing the petitioner from service.
18.In such circumstances, the impugned order of the third respondent, dated 21.3.2006, removing the petitioner from service, is set aside and the first respondent is directed to consider and pass appropriate orders on the proposal given in RC No.2186/C4/94, dated 1.6.1994, submitted by the Director of School Education, on merits and in accordance with law, within a period of 12 weeks from the date of receipt of a copy of this order.”
10.It must be noted that the said judgment has no relevance to the facts of the present case. Merely because a person is employed for long time, that by itself will not give the benefit of an order from the court to continue in employment.
11.Reliance was placed upon the judgment of the Supreme Court in Union of India v. K.P. Tiwari reported in (2003) 9 SCC 129 and the following passage in paragraph 4 of the said judgment is pressed into service, 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.
12.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. 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.
13.With reference to employment assistance on compassionate grounds, the Supreme Court in State Bank of India v. Somvir Singh reported in (2007) 4 SCC 778 held in paragraphs 12 and 13 as follows:
“12. The competent authority while considering the application had taken into consideration each one of those factors and accordingly found that the dependants of the employee who died in harness are not in penury and without any means of livelihood. The authority did not commit any error in taking the terminal benefits and the investments and the monthly family income including the family pension paid by the Bank into consideration for the purposes of deciding as to whether the family of late Zile Singh had been left in penury or without any means of livelihood. The scheme framed by the appellant Bank in fact mandates the authority to take those factors into consideration. The authority also did not commit any error in taking into consideration the income of the family from other sources viz. the agricultural land.
13. In our considered opinion, the High Court itself could not have undertaken any exercise to decide as to what would be the reasonable income which would be sufficient for the family for its survival and whether it had been left in penury or without any means of livelihood. The only question the High Court could have adverted itself to is whether the decision-making process rejecting the claim of the respondent for compassionate appointment is vitiated? Whether the order is not in conformity with the scheme framed by the appellant Bank? It is not even urged that the order passed by the competent authority is not in accordance with the scheme. It is well settled that the hardship of the dependant does not entitle one to compassionate appointment dehors the scheme or the statutory provisions as the case may be. The income of the family from all sources is required to be taken into consideration according to the scheme which the High Court altogether ignored while remitting the matter for fresh consideration by the appellant Bank. It is not a case where the dependants of the deceased employee are left without any means of livelihood and unable to make both ends meet. The High Court ought not to have disturbed the finding and the conclusion arrived at by the appellant Bank that the respondent was not living hand-to-mouth. As observed by this Court in G.M. (D&PB) v. Kunti Tiwary3 the High Court cannot dilute the criterion of penury to one of not very well-to-do. The view taken by the Division Bench of the High Court may amount to varying the existing scheme framed by the appellant Bank. Such a course is impermissible in law.
14.The Supreme Court in identical circumstances vide its decision in Secretary, Andhra Pradesh Social Welfare Residential Educational Institutions Vs. Pindiga Sridhar and others reported in 2007 (13) SCC 352 has held in paragraph 7 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 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.”
15.Therefore, the contentions advanced by the learned counsel for the petitioner cannot be countenanced by this Court. Hence the writ petition stands dismissed. However, there will be no order as to costs.
vvk
To
1.The Additional Director of
Medical and Rural Health
Services (Administration),
Office of the Director of Medical
and Rural Health Services,
D.M.S. Complex,
Chennai-6.
2.The Director of Medical and Rural
Health Services,
D.M.S. Complex,
Chennai 6