M.Sankar v. The Additional Director of Medical and Rural Health Services

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 21.10.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.33031 OF 2006(O.A.NO.5961 OF 1998)M.Sankar.. PetitionerVs.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. .. RespondentsThis writ petition is preferred under Article 226 of theConstitution of India praying for the issue of a writ ofcertiorarified mandamus to call for the records in pursuant to theimpugned removal order issued by the first respondent inProc.Ref.No.66409/SC1/3/97, dated 8.6.1998 and to quash the sameand consequently, to direct the respondents to reinstate theapplicant in service with full backwages and other consequentialservice benefits.For Petitioner : Mr.S.M.SubramanianFor Respondent : Mr.R.Neelakandan, GA ORDERHeard both sides.2.The petitioner, who was working as a Store Keeper underthe control of the second respondent, filed O.A.No.5961 of 1998before the Tribunal, seeking to challenge the order, dated 8.6.98passed by the first respondent, wherein and by which, he wasremoved from service on the ground that he gave false documents toget employment from the Government and by suppressing the fact https://hcservices.ecourts.gov.in/hcservices/ about his mother being employed at the time of the death of hisfather. Pending the O.A., the Tribunal did not grant any interimorder. 3.On notice from the Tribunal, the respondents have filed areply affidavit, dated 21.8.1998. In view of the abolition of theTribunal, the matter stood transferred to this court and wasrenumbered as W.P.No.33031 of 2006. 4.The petitioner's father, who was working as a SanitaryWorker in the Government Headquarters Hospital at Salem, died on19.1.1976. The petitioner applied for an employment assistance oncompassionate ground. The petitioner was directed to produce aIndigent Circumstances certificate to examine the genuineness ofhis request. He obtained the certificate from the Tahsildar andV.A.O., Salem, in which it was stated that persons whose names werefound in the legal heir certificate, were not employed either inGovernment's service or in private employment. Based on the saidcertificate, the petitioner was appointed as a Junior Assistant andjoined duty at the Government Hospital, Rasipuram on 24.2.1993. Hewas 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 ofMedical and Rural Health Services and Family Welfare, Salem thatthe petitioner's mother P.Kuppammal, wife of late P.Manickam, wasalready working as a Female Nursing Assistant in the GovernmentMohan Kumaramangalam Hospital, Salem, even at the time of death ofher husband. It was stated that the certificate produced by thepetitioner that his family was under indigent circumstances andthere was no income for his mother was false. 6.A charge memo under Rule 17(b) of the Tami Nadu CivilService (Discipline and appeal) Rules was framed and the petitionerwas placed under suspension by an order, dated 7.8.97. As againstthe suspension, the petitioner filed O.A.No.6783 of 1997 before theTribunal. Thereafter, an enquiry was conducted and based on thematerials gathered during the enquiry, the petitioner was removedfrom service. It is against this order, the present OA was filed. 7.The petitioner contended that G.O.Ms.No.155, Labour andEmployment Department, dated 16.7.1993 provides for employmentassistance even if another member of the deceased Governmentservant's family was employed after ascertaining the relevantfactors. The petitioner claimed that after the death of his father,he was not cared by his mother and he was under indigentcircumstances. Since the petitioner had already served for severalyears 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'semployment in the Government service and also he did not produceany material that he was living separately from his mother. Theinterpretation placed by the petitioner regarding the Government https://hcservices.ecourts.gov.in/hcservices/ Order in G.O.Ms.No.155, Labour and Employment Department, dated16.7.1993 was erroneous. It is only when a member of a family wasalready in employment and did not support his family and was livingeven before the death of the Government servant separately withoutextending any help, the question of eligibility of the dependentfor an employment assistance will arise. 9.The learned counsel for the petitioner placed relianceupon the judgment of this court in W.Ruben Franklin Vs. Governmentof Tamil Nadu and others reported in 2008 (5) MLJ 1322. He referredto the following passages found in paragraphs 17 and 18 of the saidjudgment, which are as follows:"17.Considering the submissions made bythe learned counsels appearing for the partiesconcerned, this Court is of the considered viewthat the appointment of the petitioner as a BTassistant on compassionate grounds, by anorder, dated 5.11.1990, cannot be nullified bythe subsequent impugned order of the thirdrespondent, dated 21.3.2006. The appointment ofthe petitioner, on 5.11.1990, was based on theparticulars given by the petitioner and it hasnot been shown by the respondents that theparticulars given by the petitioner are wrongor misleading. There has been nomisrepresentation by the petitioner with regardto the relevant details, which were necessaryfor the respondents to pass the orderappointing the petitioner. When it was found bythe respondents, based on the certificateissued by the Tahsildar, that the petitionerand the members of his family were in indigentcircumstances and when his appointment had beenmade, based on such finding it may not be opento the respondents to find fault in thepetitioner's appointment at this point of time.The show cause notice, dated 31.10.1997, hasbeen issued after nearly 7 years from the dateof his appointment. Further, it has not beenshown by the respondents that the appointmentis illegal or contrary to the establishedscheme relating to appointment on compassionategrounds. When the Chief Educational Officer hadrecommended the case of the petitioner forappointment on compassionate grounds by hisproceedings, dated 29.5.1990 and thepetitioner's appointment had been made by theproceedings, dated 5.11.1990, the respondentswould be estopped from raising the plea ofdisqualification of the petitioner for suchappointment after a lapse of 7 long years.Further, it is seen from the records availablethat this Court, by an interim order, dated https://hcservices.ecourts.gov.in/hcservices/

27.4.2006, made in W.P.M.P.No.11361 of 2006 inW.P.No.10040 of 2006, had granted an order ofinterim stay of the impugned order of thethird respondent, dated 21.3.2006, removing thepetitioner from service.18.In such circumstances, the impugnedorder of the third respondent, dated 21.3.2006,removing the petitioner from service, is setaside and the first respondent is directed toconsider and pass appropriate orders on theproposal given in RC No.2186/C4/94, dated1.6.1994, submitted by the Director of SchoolEducation, on merits and in accordance withlaw, within a period of 12 weeks from the dateof receipt of a copy of this order."10.It must be noted that the said judgment has no relevanceto the facts of the present case. Merely because a person isemployed for long time, that by itself will not give the benefit ofan order from the court to continue in employment. 11.Reliance was placed upon the judgment of the SupremeCourt in Union of India v. K.P. Tiwari reported in (2003) 9 SCC129 and the following passage in paragraph 4 of the said judgmentis pressed into service, which is as follows:4. It is unnecessary in this case to examineeither questions of law or fact arising in thematter. Suffice to say that the respondent hasbeen appointed now and has been in service formore than five years. We do not think, it wouldbe appropriate to disturb that state of affairsby making any other order resulting inuprooting the respondent from his livelihood.12.It must be noted that the K.P.Tiwari's case (citedsurpa) came to be considered by the Supreme Court subsequently andthe reasoning found in that case was not followed. In fact, thereasoning found there, were explained by referring to all the otherdecisions arising out of matter relating to compassionateappointments vide decision in State of Haryana v. Ankur Guptareported in (2003) 7 SCC 704. In paragraphs 4 to 10, the SupremeCourt observed as follows:4. Learned counsel for the appellant Statesubmitted that the approach of the High Court iserroneous. When the appointment was made inviolation of the policy, and by mistake therespondent had been appointed, that does not conferany legal right upon him. In response, learnedcounsel for the respondent submitted that asrightly observed by the High Court, there was nomisrepresentation or fraud practised by the https://hcservices.ecourts.gov.in/hcservices/ respondent in gaining employment. The respondenthas worked for more than 4 years and in view ofwhat has been stated by this Court in Union ofIndia v. K.P. Tiwari1, jurisdiction under Article136 of the Constitution of India, 1950 (in short“the Constitution”) should not be exercised.5. We find that the appointment, admittedly, wasnot permissible in view of the policy which cameinto force from 22-8-1996. The earlier policy waschanged in view of a decision of the High Court.The correctness of the policy decision was notunder challenge.6. As was observed in State of Haryana v. RaniDevi2 it need not be pointed out that the claim ofthe person concerned for appointment oncompassionate ground is based on the premise thathe was dependent on the deceased employee.Strictly, this claim cannot be upheld on thetouchstone of Article 14 or 16 of the Constitutionof India. However, such claim is considered asreasonable and permissible on the basis of suddencrisis occurring in the family of such employee whohas served the State and dies while in service.That is why it is necessary for the authorities toframe rules, regulations or to issue suchadministrative orders which can stand the test ofArticles 14 and 16. Appointment on compassionateground cannot be claimed as a matter of right. Die-in-Harness Scheme cannot be made applicable to alltypes of posts irrespective of the nature ofservice rendered by the deceased employee. In RaniDevi case2 it was held that the scheme regardingappointment on compassionate ground if extended toall types of casual or ad hoc employees includingthose who worked as apprentices cannot be justifiedon constitutional grounds. In LIC of India v. AshaRamchhandra Ambekar3 it was pointed out that theHigh Courts and Administrative Tribunals cannotconfer benediction impelled by sympatheticconsiderations to make appointments oncompassionate grounds when the regulations framedin respect thereof do not cover and contemplatesuch appointments. It was noted in Umesh KumarNagpal v. State of Haryana4 that as a rule, inpublic service appointments should be made strictlyon the basis of open invitation of applications andmerit. The appointment on compassionate ground isnot another source of recruitment but merely anexception to the aforesaid requirement taking intoconsideration the fact of the death of the employeewhile in service leaving his family without any https://hcservices.ecourts.gov.in/hcservices/ means of livelihood. In such cases the object is toenable the family to get over sudden financialcrisis. But such appointments on compassionateground have to be made in accordance with therules, regulations or administrative instructionstaking into consideration the financial conditionof the family of the deceased.7. In Director of Education (Secondary) v.Pushpendra Kumar5 it was observed that in the matterof compassionate appointment there cannot beinsistence for a particular post. Out of purelyhumanitarian consideration and having regard to thefact that unless some source of livelihood isprovided the family would not be able to make bothends meet, provisions are made for givingappointment to one of the dependants of thedeceased who may be eligible for appointment. Carehas, however, to be taken that provision for grantof compassionate employment which is in the natureof an exception to the general provisions does notunduly interfere with the right of those otherpersons who are eligible for appointment to seekappointment against the post which would have beenavailable, but for the provision enablingappointment being made on compassionate grounds ofthe dependant of the deceased employee. As it is inthe nature of exception to the general provisions,it cannot substitute the provision to which it isan exception and thereby nullify the main provisionby taking away completely the right conferred bythe main provision.8. These aspects have been highlighted by thisCourt in a recent decision in State of Manipur v.Md. Rajaodin6.9. Above being the legal position, the logic ofthe policy cannot be undermined. Coming to thequestion whether there was any fraud ormisrepresentation, we find that right from thebeginning, the officers concerned were acting in amanner contrary to the policy. When the Director ofIndustrial Training and Vocational Education,Haryana wrote to the Commissioner and Secretary,Industrial Training and Vocational EducationDepartment, Haryana Government, on 22-5-1997, itwas clearly indicated that the mother of therespondent was already in government service. Itwas also noted that according to the governmentinstructions only those dependants of the deceasedemployee/officer whose family income is up toRs2500 per month can be appointed. In the letter https://hcservices.ecourts.gov.in/hcservices/ itself it is mentioned that the monthly salary ofthe respondent’s mother was Rs5880 and, therefore,there was no scope for appointing the respondent.Having said so, it was indicated that relaxationmay be given in his case. The High Court proceededon the basis as if there was relaxation of thestipulations. No provision could be shown to uswhereby relaxation is permissible, particularlywhen the policy in this respect was modified on thebasis of and in implementation of the decision ofthe High Court. Though the learned counsel for therespondent referred to the 1970 guidelines wherethere was scope for relaxation, the same does notassist the respondent because that was operative ata point of time when the policy dated 22-8-1996notified to be in line with the High Court’sjudgment was not in operation.10. Looked at from any angle, the view of theHigh Court is indefensible. The judgment of theHigh Court is, therefore, set aside. But whileallowing the State’s appeal, it cannot be lostsight of that the respondent was in governmentservice for more than about four years. It isstated by the learned counsel for the respondentthat he has already become overaged for governmentemployment. In the peculiar circumstances, in casethe respondent applies for a job in the Governmentwithin a period of two years and is selected dehorsthe compassionate appointment scheme, the questionof his having crossed the age bar, would not standin his way and the service rendered by him shall beduly considered. The appeal is allowed subject tothe aforesaid observations. Costs made easy.13.With reference to employment assistance on compassionategrounds, the Supreme Court in State Bank of India v. Somvir Singhreported in (2007) 4 SCC 778 held in paragraphs 12 and 13 asfollows:"12. The competent authority whileconsidering the application had taken intoconsideration each one of those factors andaccordingly found that the dependants of theemployee who died in harness are not in penuryand without any means of livelihood. Theauthority did not commit any error in taking theterminal benefits and the investments and themonthly family income including the familypension paid by the Bank into consideration forthe purposes of deciding as to whether thefamily of late Zile Singh had been left in https://hcservices.ecourts.gov.in/hcservices/ penury or without any means of livelihood. Thescheme framed by the appellant Bank in factmandates the authority to take those factorsinto consideration. The authority also did notcommit any error in taking into considerationthe income of the family from other sources viz.the agricultural land.13. In our considered opinion, the High Courtitself could not have undertaken any exercise todecide as to what would be the reasonable incomewhich would be sufficient for the family for itssurvival and whether it had been left in penuryor without any means of livelihood. The onlyquestion the High Court could have adverteditself to is whether the decision-making processrejecting the claim of the respondent forcompassionate appointment is vitiated? Whetherthe order is not in conformity with the schemeframed by the appellant Bank? It is not evenurged that the order passed by the competentauthority is not in accordance with the scheme.It is well settled that the hardship of thedependant does not entitle one to compassionateappointment dehors the scheme or the statutoryprovisions as the case may be. The income of thefamily from all sources is required to be takeninto consideration according to the scheme whichthe High Court altogether ignored whileremitting the matter for fresh consideration bythe appellant Bank. It is not a case where thedependants of the deceased employee are left“without any means of livelihood” and unable tomake both ends meet. The High Court ought not tohave disturbed the finding and the conclusionarrived at by the appellant Bank that therespondent was not living hand-to-mouth. Asobserved by this Court in G.M. (D&PB) v. KuntiTiwary3 the High Court cannot dilute thecriterion of penury to one of “not very well-to-do”. The view taken by the Division Bench of theHigh Court may amount to varying the existingscheme framed by the appellant Bank. Such acourse is impermissible in law.14.The Supreme Court in identical circumstances vide itsdecision in Secretary, Andhra Pradesh Social Welfare ResidentialEducational Institutions Vs. Pindiga Sridhar and others reported in2007 (13) SCC 352 has held in paragraph 7 as follows:"7.The High Court on the basis of theerroneous view upset the well-merited judgment ofthe learned Single Judge. By now, it is well- https://hcservices.ecourts.gov.in/hcservices/ settled principle of law that principles ofnatural justice cannot be applied in astraitjacket formula. Their application dependsupon the facts and circumstances of each case. Tosustain the complaint of the violation ofprinciples of natural justice one must establishthat he was prejudiced for non-observance of theprinciples of natural justice. In the presentcase, the fact on which the appellant terminatedthe services of the respondent appointed oncompassionate ground was admitted by therespondent himself that when he applied for thepost on compassionate ground by his applicationdated 6-5-1996, his mother was in service. Soalso when he secured the appointment by an orderdated 22-11-2002 his wife was in service since 3-8-1997 as Extension Officer in Rural Developmentand later on promoted as Mandal ParishadDevelopment Officer at the time when he wasappointed on compassionate ground. These factsclearly disclose that the appointment oncompassionate ground was secured by playingfraud. Fraud cloaks everything. In such admittedfacts, there was no necessity of issuing show-cause notice to him. The view of the High Courtthat termination suffers from the non-observanceof the principles of natural justice is,therefore, clearly erroneous. In our view, in thegiven facts of this case, no prejudice whatsoeverhas been caused to the respondent. The respondentcould not have improved his case even if a show-cause notice was issued to him." 15.Therefore, the contentions advanced by the learnedcounsel for the petitioner cannot be countenanced by this Court.Hence the writ petition stands dismissed. However, there will be noorder as to costs.vvk Sd/- Asst.Registrar/True Copy/ Sub.Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.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-6.1 cc to Government PleaderSR.55698W.P.NO.33031 OF 2006PKB(CO)EU 29.10.2009.