Smt.Minny Buelah Jose v. The Director of Social Welfare and Nutritious Meal Programme & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30.10.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.37384 of 2006(O.A.No.6897 of 1998)Smt.Minny Buelah Jose .. Petitioner Vs.1.The Director of Social Welfare and Nutritious Meal Programme, Chepauk, Chennai.2.Administrative Officer, Social Welfare and Nutritious Meal Programme, Chepauk, Chennai-600 005.3.District Project Nutrition Officer, Nagercoil. .. Respondents This writ petition is preferred under Article 226 of theConstitution of India praying for the issue of a writ of certiorarito call for the records pursuant to proceedings No.NAKA No.90232-E3-92, dated 7.8.1998 issued by the first respondent and to quashthe same.For Petitioner : Mr.Muthappan for Mr.D.JohnsamuelFor Respondents : Mr.R.Neelakantan, GA ORDERThe petitioner filed O.A.No.6897 of 1998, seeking tochallenge the order, dated 7.8.1998, by which she was removed fromservice. https://hcservices.ecourts.gov.in/hcservices/

2.Pending the OA, the Tribunal granted an interim order,dated 25.8.1998, staying the order of removal. It was stated by theTribunal that the impugned proceedings initiated against thepetitioner was vitiated since the petitioner was not given a copyof the enquiry report and opportunity of further representation wasnot given. Thus, the proceedings initiated was in violation of Rule17(b) of the Tamil Nadu Civil Services (Discipline and Appeal)Rules. Though an application was filed by the respondents inM.A.No.6783 of 2000, seeking to vacate the interim order passed bythe Tribunal, the Tribunal for the reasons best known to it did nottake up the said application. 3.In view of the abolition of the Tribunal, the matterstood transferred to this court and was renumbered as W.P.No.37384of 2006.4.On notice from the Tribunal, the respondents have filed areply affidavit, dated 13.1.2000, justifying the termination. Itis seen from the records that the petitioner's mother Tmt.G.Hepsialwhile working as a Taluk Project Nutrition Officer, Palayamkottaidied on 1.9.1985. The petitioner being her daughter and legal heirsent applications, dated 3.11.1989, 16.11.1989 and 1.3.1990 forconsidering her case for appointment on compassionate ground. Inthose representations, she had stated that none of the familymembers of Tmt.Hepsial was in Government or in a private job andher family was suffering from poverty. Therefore, the petitionerwas appointed as a Junior Assistant, by an order, dated 9.5.1990 bythe first respondent. The petitioner also joined in the post on21.5.1990.5.When a proposal for approving the appointment of thepetitioner was sent to the Government, it was informed by theGovernment by a letter, dated 12.12.1994 that from the nominationform for the Family Benefit Fund furnished by the petitioner'smother and found pasted in her service register, it was found thatthe petitioner's father A.Josiah was nominated by her as her legalheir and that he was then working as an Executive Officer atThenthiruperai Town Panchayat. Therefore, an Officer was deputedto verify these facts. The Assistant Director (Women Welfare) wasappointed as the Enquiry Officer. By her report, dated 1.9.1995 shefound that the petitioner's father had worked as an ExecutiveOfficer in Tirunelveli District Town Panchayat and got retired on30.6.1989. Therefore, when the petitioner's mother died on1.9.1985, her father was very much in Government's employment. Thefacts set out in the report was communicated to the StateGovernment by a letter, dated 20.9.1995. 6.The State Government, by its letter, dated 13.12.1996directed that the petitioner should be removed from service byinitiating disciplinary proceedings under Rule 17(b) of the Tamil https://hcservices.ecourts.gov.in/hcservices/ Nadu Civil Services (Discipline and Appeal) Rules as she hadsecured appointment on compassionate ground by suppressing the factof her father's employment. Accordingly, a charge memo under Rule17(b) was framed. The petitioner had submitted her explanation,dated 26.9.1998. The Deputy Director of ICDS Scheme was appointedas an Enquiry Officer, who conducted enquiry on 26.11.1997. Shegave a report on 27.11.1997 holding that the charges were proved. Acopy of the report was also furnished to the petitioner to enableher to give a further representation and the same was received bythe petitioner on 13.1.1998. She gave further representation on26.2.1998. After considering all these documents, her removal wasordered. 7.Therefore, when the petitioner obtained an interim orderbefore the Tribunal, staying the order of removal, once again thelearned counsel for the petitioner made an incorrect statementbefore the Tribunal, stating that the report of the enquiry officerwas not given to her and hence the proceedings were vitiated. 8.In the reply affidavit filed by the first respondent, itwas also pointed out that the petitioner herself revealed in herrepresentation that she had earlier applied for an appointment oncompassionate grounds and the same was rejected by the respondentson 20.3.1987 for the reason that her father was in Governmentservice at the time of the death of her mother and the members ofher family were not entitled for the benefit as requested. 9.Two issues arise for consideration. The first issue iswhether in such cases, an elaborate enquiry is required especiallywhen the finding is that there was suppression of fact by thepetitioner and that she was ineligible to get appointment in termsof rules relating to compassionate appointment. This question wassquarely answered by the Supreme Court vide its decision in Addl.G.M.-Human Resource, Bharat Heavy Electricals Ltd. v. SureshRamkrishna Burde reported in (2007) 5 SCC 336. The Supreme Courtnegatived such claims. In paragraphs 12 to 14 of the saidjudgment, it was observed as follows: 12. In R. Vishwanatha Pillai v. State of Kerala2which we have referred to earlier, the case of theemployee’s son, who got admission in an engineeringcollege against a seat reserved for Scheduled Caste,was also considered. The admission in theengineering college was obtained in 1992 and hecompleted the course in 1996 though under theinterim order of the High Court. The appeal wasdecided by this Court on 7-1-2004. Placing relianceupon para 38 of the judgment in Milind1 this Courtobserved that no purpose would be served inwithholding the declaration of the result on thebasis of examination already taken by the student ordepriving him of the degree in case he passes the https://hcservices.ecourts.gov.in/hcservices/ examination. It was accordingly directed that thestudent’s result be declared and he be allowed totake his degree with the condition that he will notbe treated as Scheduled Caste candidate in futureeither in obtaining service or for any otherbenefits flowing from the caste certificate obtainedby him and he shall be treated to be a personbelonging to General category.13. The principle, which seems to have beenfollowed by this Court is, that, where a personsecures an appointment on the basis of a false castecertificate, he cannot be allowed to retain thebenefit of the wrong committed by him and hisservices are liable to be terminated. However, wherea person has got admission in a professional courselike engineering or MBBS and has successfullycompleted the course after studying for theprescribed period and has passed the examination,his case may, on special facts, be considered on adifferent footing. Normally, huge amount of publicmoney is spent in imparting education in aprofessional college and the student also acquiresthe necessary skill in the subjects which he hasstudied. The skill acquired by him can be gainfullyutilised by the society. In such cases theprofessional degree obtained by the student may beprotected though he may have got admission byproducing a false caste certificate. Here again nohard-and-fast rule can be laid down. If thefalsehood of the caste certificate submitted by thestudent is detected within a short period of hisgetting admission in the professional course, hisadmission would be liable to be cancelled. However,where he has completed the course and has passed allthe examinations and acquired the degree, his casemay be treated on a different footing. In such casesonly a limited relief of protection of hisprofessional degree may be granted.14. In the case in hand the respondent gotappointment on 31-5-1982 on a post, which wasreserved for a member of Scheduled Tribe. Onreceiving complaints the employer referred thematter to the District Collector, Nagpur and also tothe Scrutiny Committee in March 1991. The subsequentperiod has been spent in making enquiry and inlitigation as the respondent filed three writpetitions. In view of the principle laid down bythis Court we are clearly of the opinion that hisservices were rightly terminated by the appellantand the High Court was in error in directing his https://hcservices.ecourts.gov.in/hcservices/ reinstatement. The order passed by the High Court,therefore, has to be set aside.10.The second issue posed by the petitioner was based uponthe order of the Supreme Court in Union of India v. K.P. Tiwarireported in (2003) 9 SCC 129. In that case, the Supreme Court heldthat if a person is served for more than 5 years and even if hisappointment is held to be irregular, such an appointment need notbe disturbed and if done so, it will uproot the person from hislivelihood. 11.The petitioner also relied upon the judgment of thisCourt in R.Rajani Vs. The Government of Tamil Nadu and another inW.P.No.26858 of 2006 , dated 17.7.2008. This Court, after followingthe K.P.Tiwari's case (cited supra), granted relief in a similarclaim. 12.However, it must be noted that the K.P.Tiwari's case(cited surpa) came to be considered by the Supreme Courtsubsequently and the reasoning found in that case was notfollowed. In fact, the reasoning found there, were explained byreferring to all the other decisions arising out of matter relatingto 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 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 therespondent 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 on https://hcservices.ecourts.gov.in/hcservices/ compassionate 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 anymeans 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 giving https://hcservices.ecourts.gov.in/hcservices/ appointment to one of the dependants of thedeceased who may be eligible for appointment. Carehas, however, to be taken that provision for grant of compassionate employment which is in thenature of an exception to the general provisionsdoes not unduly interfere with the right of thoseother persons who are eligible for appointment toseek appointment against the post which would havebeen available, 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 letteritself 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 22-8-1996 https://hcservices.ecourts.gov.in/hcservices/ notified 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.The Supreme Court in similar circumstances vide itsdecision in A.P. Social Welfare Residential EducationalInstitutions v. Pindiga Sridhar reported in (2007) 13 SCC 352 heldthat securing compassionate appointment by playing fraud cannot becountenanced by the court. The following passage found in paragraph7 of the said judgment may be usefully extracted below:7. The High Court on the basis of theerroneous view upset the well-merited judgmentof the learned Single Judge. By now, it iswell-settled principle of law that theprinciples of natural justice cannot beapplied in a straitjacket formula. Theirapplication depends upon the facts andcircumstances of each case. To sustain thecomplaint of the violation of principles ofnatural justice one must establish that he wasprejudiced for non-observance of theprinciples of natural justice. In the presentcase, the fact on which the appellantterminated the services of the respondent appointed on compassionate ground was admittedby the respondent himself that when he appliedfor the post on compassionate ground by hisapplication dated 6-5-1996, his mother was inservice. So also when he secured theappointment by an order dated 22-11-2002 hiswife was in service since 3-8-1997 asExtension Officer in Rural Development andlater on promoted as Mandal ParishadDevelopment Officer at the time when he wasappointed on compassionate ground. These facts https://hcservices.ecourts.gov.in/hcservices/ clearly disclose that the appointment oncompassionate ground was secured by playingfraud. Fraud cloaks everything. In suchadmitted facts, there was no necessity ofissuing show-cause notice to him. The view ofthe High Court that termination suffers fromthe non-observance of the principles ofnatural justice is, therefore, clearlyerroneous. In our view, in the given facts ofthis case, no prejudice whatsoever has beencaused to the respondent. The respondent couldnot have improved his case even if a show-cause notice was issued to him."14.The Supreme Court also rejected the contention ofsympathy being shown for being in long service as ground forgranting relief. In this context, it is therefore necessary torefer to the decision of the Supreme Court in State of W.B. v.Banibrata Ghosh reported in (2009) 3 SCC 250. In paragraphs 31 and32 of the said judgment, the contention raised similar to thepresent case has been rejected by the Supreme Court and hence it isnecessary to reproduce those paragraphs:31. Shri Ghosh, learned Senior Counsel, appearingfor the respondents, at this stage, says that weshould take a compassionate view of the matter,since as a result of this judgment, the respondentwould be thrown in a state of unemployment. We areafraid, we cannot show any such misplaced sympathy,which was shown by the Division Bench. We are toldat the Bar that this Court had issued directions tomake the payment of salaries and some payments havebeen made to the respondent. We direct that suchpayments shall not be recovered from therespondent.32. Considering that the writ petition remainedpending for 10 years and thereby, the respondentmight now have become barred by age for freshemployment, we recommend that the Government mayconsider the condonation of the age bar, if any, onthe part of the respondent. We accordingly setaside the judgment of the Division Bench andrestore that of the learned Single Judge and allowthe appeal but without any order as to costs.15.In the light of the above, the writ petition filed bythe petitioner deserves to be dismissed and accordingly, the samestands dismissed. However, there will be no order as to costs. https://hcservices.ecourts.gov.in/hcservices/

16.But at the same time, this court will have to grant thesame relief as was done by the Supreme Court in State of Haryanacase (cited supra) (2003) 7 SCC 704 in paragraph 10, which is asfollows:10....In the peculiar circumstances, in case therespondent 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.The Supreme Court in State of West Bengal's case (cited supra) inparagraph 32 observed as follows:32.Considering that the writ petitionremained pending for 10 years and thereby, therespondent might now have become barred by age forfresh employment, we recommend that the Governmentmay consider the condonation of the age bar, ifany, on the part of the respondent...."The petitioner also will have the benefit of similar observationmade by the Supreme Court while applying for a post in theGovernment. Sd/Asst.Registrar/true copy/ Sub Asst.RegistrarvvkTo1.The Director of Social Welfare and Nutritious Meal Programme, Chepauk, Chennai.2.The Administrative Officer, Social Welfare and Nutritious Meal Programme, Chepauk, Chennai-600 005. https://hcservices.ecourts.gov.in/hcservices/

3.The District Project Nutrition Officer, Nagercoil.+ 1 cc to Malarvizhi Udayakumar, SR 57797 ORDER INW.P.NO.37384 of 2006KJ (CO)RH (10.11.09)