IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04-09-2009 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN Writ Petition No.24192 of 2004 and Contempt Petition No.641 of 2005 H.Shahida Begum .. Petitioner in both the petitions. Versus 1.The District Educational Officer, Namakkal, Namakkal District. 2.The Joint Director of School Education, College Road, Chennai-600 006. .. Respondents in
both the petitions.
Prayer in W.P.No.24192 of 2004: Petition filed under Article 226 of the Constitution of India, praying for a Writ of Certiorarified Mandamus calling for the records relating to the order of the 1st respondent, dated 18.8.2004, issued in Na.Ka.No.9607/A1/95 and quash the same and direct the respondents to reinstate the petitioner with all consequential benefits.
Prayer in Contempt Petition No.641 of 2005: Petition under Section 10 and 12 of the Contempt of Courts Act, 70/71 to punish the respondents for having committed contempt of Court for disobeying the order, dated 25.8.2004, made in W.P.M.P.No.29371 of 2004 in W.P.No.24192 of 2004.
For Petitioner : Mr.R.Muthukannu For Respondents : Mr.LSM.Hasan Fizal Government Advocate COMMON ORDER The contempt petition has been filed praying that this Court may be pleased to punish the respondents for wilfully disobeying the orders passed by this Court, on 25.8.2004, made in W.P.M.P.No.29371 of 2004, in W.P.No.24192 of 2004. 2. The writ petition had been filed by the petitioner challenging the order of the first respondent, dated 18.8.2004, terminating the petitioner from service from the post of junior Assistant in the respondent Department.
3. Since the contempt petition arises out of the interim order passed by this Court, on 25.8.2004, in W.P.M.P.No.29371 of 2004 in W.P.No.24192 of 2004, the main writ petition in W.P.No.24192 of 2004 is also taken up for final hearing and disposal along with the present contempt petition in Contempt Petition No.641 of 2005. Accordingly, a common order is passed in the contempt petition and the writ petition.
4. The petitioner has stated that she was appointed as a Junior Assistant in the respondent Department, by an order of the first respondent, dated 3.8.1998. By a Government Order, in G.O.(3D) No.32, School Education SI(1) Department, dated 23.5.2000, orders had been issued appointing the petitioner, on a regular basis, with effect from 6.8.1998. However, by the proceedings of the respondent, dated 18.8.2004, certain allegations had been levelled against the petitioner. By an order, dated 18.8.2004, the punishment of termination of service had been imposed on the petitioner, without conducting any enquiry. Since the said order was prima facie illegal, the petitioner had challenged the same before this Court, by way of a writ petition, in W.P.No.24192 of 2004.
5. By an order, dated 25.8.2004, passed in W.P.M.P.No.29371 of 2004, this Court had stayed the order of termination, dated 18.8.2004, imposed on the petitioner. On receiving the copy of the interim order, the petitioner had submitted a representation, dated 8.9.2004, bringing it to the notice of the respondent, the effect of the said interim order. However, the respondent had not permitted the petitioner to join duty. Therefore, the petitioner had submitted another representation, dated 14.9.2004. Thereafter, several oral representations had also been made. However, the respondent had not passed any order permitting the petitioner to join duty, till date. Thus, the respondent had wilfully disobeyed the order of this Court, dated 25.8.2004, made in W.P.M.P.No.29371 of 2004 in W.P.No.24192 of 2004. Therefore, the petitioner had preferred the present contempt petition before this Court, praying that this Court may be pleased to punish the respondent for contempt of Court.
6. A counter affidavit has been filed on behalf of the respondent. While denying the allegations made by the petitioner it has been stated on behalf of the respondent that the petitioner’s father, late A.Harun Rajeed, was working as a Secondary Grade Assistant in the Panchayat Union Elementary School, Maravapalayam, Paramathy Union, Namakkal District. He had died on 11.8.1989, while in service. After her father’s death, the petitioner had submitted an application for compassionate appointment, on 5.3.1992, through the Assistant Elementary Educational Officer, Paramathy, Namakkal, for being appointed in the post of Junior Assistant.
7. As per paragraph No.4 of the Government order in G.O.Ms.No.1579, Labour and Employment Department, dated 21.7.1981, the son or unmarried daughter of deceased Government servants shall apply for appointment on compassionate grounds before they attain the age of 30 years. The petitioner had applied for compassionate appointment, on 5.3.1992. In the legal heirship certificate issued by the Tahsildar, Paramathy, on 31.8.1989, which was produced by the petitioner, her marital status had not been mentioned. In Serial No.2 of the said certificate the petitioner’s name, relationship and age had been mentioned. In Serial No.1, the name of the petitioner’s mother had been entered as Tmt.Ansar. However, in Serial No.2, the words Thiru/Tmt/Selvi had not been mentioned before the petitioner’s name.
8. As per G.O.Ms.Nos.560 and 1579, Labour and Employment Department, dated 3.8.1977 and 21.7.1981, respectively, orders have been issued to the effect that the son or the unmarried daughter of the deceased Government servants shall apply for appointment, at any time, within the date of completion of the age of 30 years. In the prescribed proforma for compassionate appointment, Column 4, Item 15, Part III, provides for the entry regarding marital status of the applicant. The petitioner had not entered the correct entry. Instead she has simply entered as `daughter’. She has given a certificate with reference to G.O.Ms.No.29, Labour and Employment Department, dated 7.3.1988, in the prescribed proforma in which she had given a statement to the effect that she declares the facts given by her as true to the best of her knowledge and that if any facts given by the petitioner are found to be incorrect her services could be terminated. The District Educational Officer, Namakkal, the first respondent herein, had submitted the petitioner’s application, along with a proposal to the Director of School Education for considering her compassionate appointment. After verification of the records, the Joint Director of School Education (Personal), the second respondent herein, in his proceedings in Rc.No.59915/J4/97, dated 19.6.1998, had allotted her the seniority number as 322.
9. On receipt of the proposal, the District Educational Officer, the first respondent herein, in his proceedings Rc.No.9607/A1/95, dated 3.8.1998, issued an appointment order to the petitioner, as Junior Assistant cum Typist, to the Government High School Solasiramanai, Namakkal District and she had also joined duty on 6.8.1998. Thereafter, on 22.12.1998, the first respondent had called for the original certificate from the petitioner and her appointment order for submitting the proposal to regularise her service. When the Headmaster of Solasiramanai Government High School had submitted the necessary records, by his letter, dated 11.1.1999, it was found that the petitioner’s name had been found in her original certificate and the appointment order as “Tmt.Shahida Begum”. Thereafter, the District Educational Officer, Namakkal, had called for details about her marriage.
10. On 4.3.1999, she had given an explanation about her marriage stating that while applying for appointment on compassionate grounds she was not married. On the basis of her submission, a proposal had been made to the Director of School Education for regularising the service of the petitioner. After it was forwarded to the Government, a Government order had been issued, in G.O.(3D) No.32, School Education SI(1) Department, dated 23.5.2000, had been issued regularising the services of the petitioner, with effect from 6.8.1998, However, the Director of School Education, in his proceedings Rc.No.55147/J4/99, dated 21.8.2001, had instructed the District Educational Officer, Namakkal, to call for an explanation from the petitioner, as to why she had not informed the fact about her marriage as she had been appointed on compassionate grounds. Accordingly, the first respondent had called for an explanation from the petitioner. The petitioner had submitted an explanation stating that she was married before applying for compassionate appointment.
11. Subsequently, the Director of School Education, Chennai, had called for her family ration card and her mother’s family ration card, as evidence of her date of marriage. The petitioner had produced the mother’s family ration card. From the mother’s family ration card and the marriage certificate of the petitioner it was seen that she had got married, on 19.2.1989. Based on such finding, the Joint Director of School Education, Chennai, the second respondent herein, in D.O.Letter 55147/J4/99, dated 5.8.2004, had instructed the District Educational Officer, Namakkal, to terminate the services of the petitioner and report the action taken, thereafter. Accordingly, an explanation had been called for from the petitioner. The petitioner had submitted an explanation stating that she was not married when she had submitted the application for compassionate appointment. However, the petitioner had been terminated from service, on 18.8.2004. It has been further stated that the petitioner had produced false information and records and had been in service and she has been getting the salary for more than seven and half years, fraudulently. Therefore, the punishment of removal from service, imposed on her, is in accordance with law.
12. The learned counsel appearing on behalf of the petitioner had submitted that he may not press the contempt petition. However, on the merits of the matter, in W.P.No.24192 of 2004, the learned counsel for the petitioner had submitted that the petitioner had been married, on 19.2.1989, before the death of her father, on 11.8.1989. She had submitted her application for appointment, on compassionate grounds, on 5.3.1992. Even though no explanation had been given by the petitioner for the delay in submitting the application, for appointment on compassionate grounds, the first respondent had appointed the petitioner in service, on 3.8.1998.
13. The petitioner had joined in service, on 6.8.1998. Her services had also been regularised, vide G.O.(3D) No.32, School Education Department, dated 23.5.2000. Thereafter, the Tamil Nadu Public Service Commission had also concurred with her appointment. Only, on 17.9.2002, the Headmaster of Solasiramanai Government High School had asked the petitioner to submit the original records relating to her appointment. The date of the marriage of the petitioner was required to be submitted by an order, dated 24.7.2002. On 24.9.2002, a reply had been given by the petitioner. After the verification of the particulars regarding her marriage, by an order, dated 18.8.2004, the first respondent herein had issued a charge memo asking her to submit an explanation. The petitioner had submitted an explanation, on 18.8.2004, stating that she had been married even at the time of the death of her father, on 11.8.1989. In such circumstances, the impugned order, dated 18.8.2004, had been passed by the first respondent, imposing on her the punishment of removal from service.
14. In view of the submissions made by the learned counsels appearing on behalf of the parties concerned and on a perusal of the records produced before this Court, this Court is of the considered view that the appointment of the petitioner, on compassionate grounds, by an order, dated 3.8.1998, is based on misrepresentation and suppression of facts by the petitioner. Even though, appointments on compassionate grounds are made, appointing persons, who are members of the family of the deceased government employee, if the family is found to be in indigent circumstances, the Government Order, in G.O.Ms.No.1579, Labour and Employment Department, dated 21.7.1981, permitting such appointments specifies that such appointment could be given only to unmarried daughters of deceased Government servants, who shall apply for appointment on compassionate grounds before they attain the age of 30 years. Since the petitioner was married on the date of the death of her father, she had suppressed the said fact while submitting her application for appointment on compassionate grounds. Later, when it was found that she was appointed based on wrong facts, as narrated by the petitioner, the impugned order of removal from service had been imposed on the petitioner, by an order of the first respondent, dated 18.8.2004.
15. Once the appointment is found to be contrary to law or based on misrepresentation or fraud or suppression of material facts, such appointment cannot be held to be valid in the eye of law. Further, appointment on compassionate grounds are to be made only to help the family of the employee who had died in harness, if the members of the family are in indigent circumstances. Further, such appointments, which are exceptions to the normal process of recruitment, are made only as an exception to the general rule. Such appointments are also made to help the family of the deceased employee to provide immediate succor to the members of the family of the deceased employee. Though the petitioner’s father had died on, 11.8.1989, she had submitted her application only on 5.3.1992. There is no proper explanation for the delay in submitting her application for appointment on compassionate grounds.
16. For the reasons stated above, it is found that the writ petition filed by the petitioner is devoid of merits. Therefore, the writ petition stands dismissed. Further, the learned counsel appearing for the applicant in the contempt petition had submitted that the petitioner is not pressing the contempt petition. In view of the fact that the writ petition has been dismissed, as devoid of merits and as the petitioner has not been in a position to show that the respondents had wilfully disobeyed the order of this Court, made in W.P.M.P.No.29371 of 2004, in W.P.No.24192 of 2004, the contempt petition is dismissed. No costs.
csh
To
1.The District Educational Officer,
Namakkal, Namakkal District.
2.The Joint Director of School Education,
College Road,
Chennai 600 006