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2002 DIGILAW 193 (MP)

NARENDRA KUMAR SINGORE v. STATE OF M. P.

2002-02-18

DIPAK MISRA, UMA NATH SINGH

body2002
ORDER Dipak Misra, J. Keeping in view the factual backdrop, the questions of law and the composite order passed by the State Administrative Tribunal (in short 'the Tribunal'), this batch of writ petitions were heard analogously and are disposed of by this common order. For sake of clarity and convenience the facts in W.P. No. 2523/2000 are adumbrated herein. The petitioner, Narendra Kumar Singore was appointed as an Assistant Teacher on 5-9-1994 by the then In-charge Deputy Director, Education, District Mandla. The appointment was made on compassionate ground in terms of the policy circular No. C/3-4/94/3/One dated 10-6-1994 issued by the General Administration Department. It is not denied that the father of the petitioner has superannuated in the year 1983 and thereafter died on 1-11-1983. Keeping in view the death of the father of the petitioner, he was conferred with the privilege of compassionate appointment. While the petitioner was continuing in his post, his services were terminated vide order dated 29-12-1995. The propriety of the aforesaid order of termination was called in question.before the Tribunal on the ground that the petitioner was appointed on the basis of Circular dated 24-3-1975 and the said circular protected him in entirety. It was also putforth that no show cause notice was issued before the order of termination was passed and hence, there has been violation of the principle of audi alteram partem. The aforesaid stand of the petitioner was combatted by the State Government before the Tribunal contending, inter alia, that the claim putforth by the petitioner that he was conferred the benefit of compassionate appointment by Circular dated 24-3- 1975 was of sans substance inasmuch as vide Circular dated 10-6-1994, the 1975 Circular was superseded and that apart the appointment was given on the basis of 1994 circular which is clearly manifest from the order. It was also urged before the Tribunal that as initial appointment was void, the principles of natural justice were not attracted. The Tribunal took a note of the rival submissions and came to hold that the petitioner's appointment was absolutely illegal and void ab initio. The Tribunal also expressed the view that the principles of natural justice were not attracted. Being of this view the Tribunal dismissed the aforesaid case. The Tribunal took a note of the rival submissions and came to hold that the petitioner's appointment was absolutely illegal and void ab initio. The Tribunal also expressed the view that the principles of natural justice were not attracted. Being of this view the Tribunal dismissed the aforesaid case. We may at this juncture hasten to add that the Tribunal has narrated the factual scenario in a precise manner in paragraph No. 16 of the order and came to hold that none of the petitioner before the Tribunal had any legal right to continue. It is noteworthy to mention here that the Tribunal by order dated 11-1-1996 passed an order of status quo and this Court by order dated 30-6-2000 while admitting the matter directed the appointment of the petitioner to remain in force until further orders. Assailing the aforesaid order of the Tribunal, it is submitted by Mr. Rajendra Tiwari, learned senior counsel that the Tribunal has failed to appreciate the scope of compassionate appointment and adopted a hyper technical attuitude. It is also urged by him that the petitioners had not procured any appointment by any adroit endeavour but it is the competent authority who on a scrutiny of the Circular conferred the benefit of appointment and, therefore, the petitioner should not be allowed to suffer at this stage. Learned senior counsel also submitted that the order passed by the State Government is susceptible inasmuch as the principles of natural justice were given a go by. It is also proponed by him that the petitioners have been continuing in services for more than eight years and have become over-aged, and they are in the mid stream of life and if their services are terminated members of their family would face immense hazard which can not be conceived of. Mr. S.K. Yadav, learned Government Advocate defending the order of Tribunal has submitted that the order impugned is absolutely sound and impeccable and does not warrant any interference by this Court under Artic le 227 of the Constitution. It is putforth by him, the reliance on 1975 circular by the petitioner is like building a castle in Spain and such a concept cannot be allowed to usher in, in a case of this nature. It is putforth by him, the reliance on 1975 circular by the petitioner is like building a castle in Spain and such a concept cannot be allowed to usher in, in a case of this nature. The learned Government Advocate further canvassed that when an order which is initially void need not have to be annulled by following the procedure inasmuch as it was passed without following the procedure. Mr. Yadav, also urged that by virtue of the appointment of the petitioner, the persons who are in a queue have been deprived of the appointment and there has been violation of Article 16 of the Constitution. Mr. R. Mishra, learned counsel who has appeared for private respondent No. 4 has submitted that he was appointed in the year 1991 and has been continuing in service but his case has been cited as an example to promote the cause of the petitioner though no aid from such an example cannot be availed of. To appreciate rival submissions raised at the Bar, we have carefully perused the order passed by the State Administrative Tribunal. The Tribunal has opined that the appointment order itself states that appointment was being made in terms of the circular dated 10-6-1994. The learned counsel appearing for the petitioners are not in a position to show how the circular dated 24-3-1975 would come into play. Be that as it may, the 1994 circular extinguished life spark part of the 1975 circular and the claim putforth by the petitioners that they were conferred the benefit on the basis of 1975 circular is sans merit. The Tribunal has observed by placing reliance on the decisions rendered in the case of Jagdish Prasad vs. The State of Bihar and anothers, 1996 MPLSR 113, State of U.P. vs. Parasnath, 1998 SCC (L&S) 570 and S. Mohan vs. Government of Tamil Nadu, 1998 SCC (L&S) 1231 that the compassionate appointment cannot be claimed as a matter of right and behind such appointment the purpose is to enable the distressed family to tide over the financial crisis which is faced at the time of death of the sole breadwinner. The Tribunal has examined each case and come to hold that each of the petitioners was appointed after the death of his father and therefore, could not have claimed the privilege of compassionate appointment. The Tribunal has examined each case and come to hold that each of the petitioners was appointed after the death of his father and therefore, could not have claimed the privilege of compassionate appointment. The Tribunal has also noted the delay which has occurred between the date of death and date of appointment. The Tribunal has also opined that the principles of natural justice were not attracted. In this context we may profitably note a recent decision of this Court rendered in the case of Sudhir Kumar Singh vs. State of Madhya Pradesh and others, W.P. No. 5119/1999 wherein a Division Bench of this Court after referring to the decisions of the Apex Court and the Scheme in vogue in paragraph No. 19 came to hold as under:-- "19. On a perusal of the factual matrix it is plain as noon day that the father of the petitioner expired after rendering 34 years of service and the petitioner was 28 years of age. He was a fully grown adult. As per the principles enunciated by the Apex Court the concept of compassionate appointment is to alleviate the conditions of a family which might fall into an abysmal distress because of an unforeseen financial crisis. The basic purpose of providing immediate employment is to see that vagrancy does not creep into the family of the deceased employee. If an employee has served for 34 years, by no stretch of imagination it can be said that his family is in a state of penury. As it is, he would be entitled to full pension and entire sum of gratuity. Quite apart from the above, if an employee of this category is conferred the compassionate appointment then an employee who does cash in immediately before the retirement his legal heir would be in a position to claim compassionate appointment. That will not only lead to an absurd situation but also will amount to an epitome of violation of Rule of Law. Compassionate appointment is a noble endeavour but when it deprives others who are lawfully entitled to be absorbed but are debarred because of misplaced compassion and unwarranted mercy on the basis of an unfounded logic the same cannot be countenanced in law. The financial indigence and destitution are to be checked by providing an appointment. A family cannot be permitted to remain as poor as job. The financial indigence and destitution are to be checked by providing an appointment. A family cannot be permitted to remain as poor as job. At the same time hereditary appointment in the guise of compassionate appointment is an anathema to the basic.equality of law which has been engrafted under the Constitution. The concept of "untimely death" has to be read in conjunction with "financial crisis". If the bread winner dies untimely and the family lands up in poverty, sickness and impoverished state, the compassionate appointment is indubitably an amelioration but an unavoidable but, when a Government servant has worked for 34 years his legal heir cannot come forward and putforth a claim for compassionate appointment. Such a claim in our considered view is totally contrary to the law laid down by the Apex Court. Hence, we think it appropriate to give the stamp of approval to the order as well as the observations made by the Tribunal." We have referred to the aforesaid decision only to show that there is a purpose behind the compassionate appointment. In the instant case, the grounds for compassionate appointment did not exist. Hence, in our considered view none of the petitioners could have been given compassionate appointment. As far as that aspect is concerned, the finding recorded by the Tribunal is absolutely impregnable. Once we hold that the petitioners could not have been appointed in the category of compassionate appointment, there is no need to advert to aspect whether there should have been adherence to the principles of natural justice or not. Ordinarily, we would have concurred with the view of the Tribunal and closed the Chapter. But, Mr. Tiwari and Mr. Gangele have impressed upon us that the petitioners have been continuing in service for almost eight years and most of them have become over-aged. It is also putforth by them that some have got married because of the service secured by them and they are in the mid stream of life. Learned counsel for the petitioners have commanded us to the decisions rendered in the cases of Ashwani Kumar and Others Vs. State of Bihar and Others, , Roshni Devi and Others Vs. State of Haryana and Others, , and Arun Kumar Rout and Others Vs. State of Bihar and Others, Mr. Learned counsel for the petitioners have commanded us to the decisions rendered in the cases of Ashwani Kumar and Others Vs. State of Bihar and Others, , Roshni Devi and Others Vs. State of Haryana and Others, , and Arun Kumar Rout and Others Vs. State of Bihar and Others, Mr. Yadav, learned G.A. has submitted that the law, laid down in the aforesaid cases are not applicable at the case in hand. The learned Government Advocate has submitted that the decision rendered in the case of Arun Kumar Rout (supra) is of no assistance as their Lordships have observed that the order would be confined to facts of the said case and would not be treated as a precedent. We entirely agree with the submissions of Mr. Yadav and come to hold that the directions given in Arun Kumar Rout (supra) case would be of no help to the present petitioners. Mr. Yadav, learned Government Advocate has submitted that the law laid down in the Roshni Devi (supra) cannot be made applicable as the Apex Court had issued directions by taking recourse to Article 142 of the Constitution. In this context, we may profitably refer to the decision rendered in the case of B.C. Chaturvedi Vs. Union of India and others, , wherein the Apex Court held as under:-- "No doubt, while exercising power under Article 226 of the Constitution, the High Courts have to bear in mind the restraints inherent in exercising power of judicial review. It is because of this that substitution of the High Court's view regarding appropriate punishment is not permissible. But for this constraint, I would have thought that the law-makers do desire application of judicial mind to the question of even proportionality of punishment/penalty. I have said so because the Industrial Disputes Act, 1947 was amended to insert Section 11-A in it to confer this power even on a labour Court/industrial Tribunal. It may be that this power was conferred on these adjudicating authorities because of the prevalence of unfair labour practice or victimisation by the management. Even so, the power u/s II-A is available to be exercised, even if there be no victimisation or taking recourse to unfair labour practice. It may be that this power was conferred on these adjudicating authorities because of the prevalence of unfair labour practice or victimisation by the management. Even so, the power u/s II-A is available to be exercised, even if there be no victimisation or taking recourse to unfair labour practice. In this background, I do not think if we would be justified in giving much weight to the decision of the employer on the question of appropriate punishment in service matters relating to government employees or employees of public corporations. I have said so because if need for maintenance of office discipline be the reason of our adopting a strict attitude qua the public servants, discipline has to be maintained in the industrial sector also. The availability of appeal etc. to public servants does not make a real difference, as the appellate/revisional authority is known to have taken a different view on the question of sentence only rarely. I would, therefore, think that but for the self-imposed limitation while exercising power under Article 226 of the Constitution, there is no inherent reason to disallow application of judicial mind to the question of proportionality of punishment/penalty. But then, while seized with this question as a writ Court interference is permissible only when the punishment/penalty is shockingly disproportionate. I had expressed my unhappiness qua the first facet of the case, as Chief Justice of the Orissa High Court in paras 20 and 21 of Krishna Chandra Pallai vs. Union of India, by asking why the power of doing complete justice has been denied to the High Courts. I feel happy that I have been able to state, as a Judge of the Apex Court, that the High Courts too are to do complete justice. This is also the result of what has been held in the leading judgment." Though we have quoted in extenso from the aforesaid decision, we are not entering into the said arena at this stage except noting the authority. Now the sixty four thousand million dollar question that requires to be dealt with in these cases whether this Court should issue any other direction or close the chapter by giving the stamp of approval to the order passed by the Tribunal. As has been indicated hereinbefore the learned counsel for the petitioners have projected the cause of the petitioners and Mr. As has been indicated hereinbefore the learned counsel for the petitioners have projected the cause of the petitioners and Mr. Tiwari, learned senior counsel has submitted that if the petitioners are compelled to lose their job they would be constrained to lead a life of misery and suffer unimaginable agony. The learned counsel has also putforth that they would be without food and shelter. We may hasten to add though the learned senior counsel has qucted a line from Bisha Sharma:-- "Bubha Kshito Kim Na Karoti Papam," We are not impressed by the said logic. We may deal with the case of the petitioner in W.P. No. 144/2001, as it is slightly different. He was enjoying the benefit of stay order, but the sams lost its life as the original application filed before the Tribunal was dismissed. An application for restoration was filed but the same did not meet with success. The said order is called in question in this writ petition. Ordinarily, we would have dealt with this case differently but as the petitioner has worked for more than six years i.e. from 1994 to 2000, we are disposed to deal with this case along with this batch. In view of the order, we have passed in other cases the order passed by the Tribunal in this case is also quashed and the directions in other cases shall be applicable to his case. However, he shall not be taken in service, because of this order. However, keeping in view the totality of circumstances and bearing in mind the principle laid down in the case of Arun Kumar Rout (supra) we are inclined to issue the following directions: (a) The State Government shall proceed to fill up the vacancies in accordance with law. If necessary, it shall advertise the posts in the news papers and may also call for names from the Employment Exchange. (b) The petitioners shall be permitted to compete with the new applicants and their cases shall be considered on merits by relaxing their age. (c) The petitioners shall be considered in their respective category SC/ST. We may hasten to add that there is no bar on their part to compete in the general category. (b) The petitioners shall be permitted to compete with the new applicants and their cases shall be considered on merits by relaxing their age. (c) The petitioners shall be considered in their respective category SC/ST. We may hasten to add that there is no bar on their part to compete in the general category. (d)The State Government shall evolve a rational formula to give weightage to the petitioners who have rendered services for al most eight years as experienced in a particular post has its own effect and impact. (e) The petitioners, except the petitioner in Writ Petition No. 144/2001 shall be allowed to continue in their respective posts till the entire exercise as directed above is completed. (f) The aforesaid exercise shall be completed on quite promptitude but in any case it shall not exceed the outer limit of one year. The writ petitions are accordingly disposed of without any order as to costs. Order accordingly.