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2014 DIGILAW 394 (KAR)

BASAVARAJA K. H. v. STATE OF KARNATAKA

2014-03-24

K.L.MANJUNATH, RAVI MALIMATH

body2014
ORDER The legality and correctness of the order passed by the Karnataka Administrative Tribunal, Bangalore, dated 18.8.2011 in Application Nos 433735 of 2006 and connected matters, is called in question in this petition. 2. Writ petitioners were appointed as either first division assistants or second division assistants or group-D employees, on the basis of orders of appointment purported to have been issued by the Director of Employment and Training, which orders are signed by the Joint Director, (Training/Administration), stating that they have been appointed on compassionate grounds. Based on these orders of appointment, the petitioners joined for duty and worked either as FDAs or SDAs or group-D employees. The department entertained doubt about the genuineness of the appointments of petitioners on compassionate grounds. Therefore, a detailed enquiry was held. During the course of enquiry, it was learnt that in the department about 154 persons were appointed on compassionate grounds, even though none of their family members died while in the service of the department. It was learnt that without any application received from the petitioners and without following the recruitment process, they were appointed on compassionate grounds as if their close relatives died in the course of their service in the department. 3. After holding the enquiry, the services of the petitioners were terminated by issue of show cause notices. Challenging the same, the petitioners and others approached the Tribunal. The government contended before the tribunal that the petitioners were all appointed by some officers of the department who were in the helm of affairs at the relevant point of time, even though none of the petitioners-applicants were eligible for appointment on compassionate grounds. According to the government, none of the relatives of the petitioners died while in service to consider their cases for appointment on compassionate grounds. Hence, by issuing show cause notices calling upon the writ petitioners as to why their services should not be terminated since they did not satisfy that they were eligible for appointment on compassionate grounds, they were dismissed from service. Therefore, the government requested the tribunal to dismiss the applications filed by the petitioners-applicants. 4. The main contention of the writ petitioners before the tribunal was that there is no misrepresentation by them. However, they admitted that they had not filed any applications seeking appointment on compassionate grounds. Therefore, the government requested the tribunal to dismiss the applications filed by the petitioners-applicants. 4. The main contention of the writ petitioners before the tribunal was that there is no misrepresentation by them. However, they admitted that they had not filed any applications seeking appointment on compassionate grounds. They contended that even though they have not filed any applications seeking appointment on compassionate grounds, they received appointment orders from the department and pursuant to the orders of appointment received by them, they reported for duty and they have been honestly working. According to them, without holding an enquiry in accordance with law, they could not have been dismissed from service. 5. The tribunal considered the fact that the petitioners-applicants have not filed any application seeking appointment on compassionate grounds or pursuant to any employment notification and held that therefore they are not eligible to be appointed on compassionate grounds. On a perusal of the orders of appointment, the tribunal came to the conclusion that the petitioners-applicants were not eligible for appointment on compassionate grounds and they should not have been reported for duty, holding that they are beneficiaries of a fraud played by the officers of the department. The tribunal came to the conclusion that there is no necessity for the department to hold a detailed enquiry, as it is not the case of the petitioners-applicants that they were recruited in terms of the General Recruitment Rules pursuant to a notification. Accordingly, the applications were dismissed. Challenging the same, the present writ petitions are filed. 6. We have heard the learned counsel for the petitioners and the learned Government Advocate. 7. Learned counsel for the petitioners reiterated the grounds urged before the tribunal in these petitions also. But, we are unable to accept the argument of Sri K C Shantha Kumar, learned counsel for the petitioners, because, even according to him, the petitioners have not made any applications seeking appointment on compassionate grounds or pursuant to a general notification for recruitment. It is known to the petitioners, who are educated, that without filing any applications seeking for employment, no government department can appoint them. When they contend that though they have not made any applications, they received orders of appointment, which disclose that they were appointed on compassionate grounds, if they were honest persons, they should not have reported for duties on receipt of such orders of appointment. When they contend that though they have not made any applications, they received orders of appointment, which disclose that they were appointed on compassionate grounds, if they were honest persons, they should not have reported for duties on receipt of such orders of appointment. When the petitioners have reported for duties based on the orders of appointment, which disclose that such appointments are on compassionate grounds, we do not hesitate to hold that the petitioners are also hand in glove with the officers of the department to play the fraud. Persons who have committed fraud, cannot contend that an enquiry has to be conducted before dismissing them from service. 8. Learned Additional Government Advocates submits that the matter has been referred to CoD for investigation by setting the criminal law into motion, which is in progress. 9. It is needless to reiterate the well established principle of law that fraud vitiates everything. Admittedly, the appointments are fraudulent. There is no application made by the petitioners seeking employment. The General Rules of employment have been flouted. In connivance with the officials of the State Government, the appointment orders have been issued. When these are the admitted facts, the question of issuing a show cause notice before dismissing them does not arise. A show cause notice is issued in order that the concerned person may show cause as to why appropriate action should not be taken, ostensibly on the ground that the position that he holds at that point of time is lawful. When he himself concedes to the effect that there was no application made and when the Rules of appointment by the State have been flouted, there is no necessity to hold an enquiry to ascertain any facts any more. The facts having been admitted, the principle of res ipsa loquitor comes into play. Nothing else requires to be enquired into and no finding is required under the given facts and circumstances of the case, based on the admissions. Therefore, issuance of a show cause notice is wholly unwarranted. The non-issuance of show cause notice does not violate the principles of natural justice at all. 10. Yet another aspect to be considered is the outcome of these illegal appointments. Even though it is sought to be pleaded that the petitioners are rendering honest service to the Government, it is not the criteria under consideration. The non-issuance of show cause notice does not violate the principles of natural justice at all. 10. Yet another aspect to be considered is the outcome of these illegal appointments. Even though it is sought to be pleaded that the petitioners are rendering honest service to the Government, it is not the criteria under consideration. By the illegal appointments of almost 154 people, it is the fate of the law abiding citizens who need employment that has been washed away. The persons who are eligible in accordance with law to be appointed under the State have been denied their lawful right. It is those persons who have suffered due to such illegal acts. The fate of those persons who were eligible for appointment in accordance with law, but, when denied the same due to the present illegal appointments, has also been taken into consideration. 11. In the circumstances, we are of the considered view that the tribunal has not committed any error in dismissing the applications filed by the petitioners herein. In the result, these writ petitions are dismissed.