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2018 DIGILAW 259 (ALL)

Ramesh Kumar v. State of U. P.

2018-01-31

VIVEK KUMAR BIRLA

body2018
JUDGMENT : Vivek Kumar Birla, J. Heard learned counsel for the petitioner as well as Ms. Shivi Mishra, learned Standing Counsel appearing for the State respondents and perused the record. 2. Present petition has been filed challenging the impugned order dated 15.11.2010. A further prayer in the nature of mandamus has been made to direct the respondents to reinstate the petitioner in service with all consequential benefits, including arrears of pay and other emoluments and continuity of service for all purposes. 3. Notices were issued to the respondents no.4 and 5, however office report dated 25.7.2016 indicates that neither undelivered cover nor acknowledgement has been returned back after service. As such, service on respondents no. 4 and 5 is deemed to be sufficient. 4. The petitioner was admittedly appointed in place of his deceased brother on the basis of an affidavit given by the wife of the deceased employee that the compassionate appointment be granted to the elder brother of late husband as he has undertaken to maintain family of the deceased employee. On that basis the appointment was granted to the petitioner in the year 1991 vide order dated 30.1.1991 by the respondent no. 3-Deputy Collector/Up Ziladhikari, Moth, District Jhansi. After a gap of 19 years, a complaint was made by the respondents no. 4 and 5 to the effect that the petitioner is not maintaining the family and he has obtained appointment by playing fraud and he does not fall within the definition of family as given in the Uttar Pradesh Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974 (hereinafter referred to as the 'Rules'). When nothing was done, a writ petition being Writ Petition No. 44816 of 2010 (Birendra Singh vs. State of UP and others) was filed by the respondent no. 5, which was disposed of vide judgment and order dated 2.8.2010, which is quoted as under: "Heard learned counsel for the petitioner and learned Standing Counsel. According to the petitioner, his father, who was an employee of respondents, died in harness in 1990. It appears that respondent No. 5, who is the uncle of the petitioner, by playing fraud has got an appointment under the Dying-in-Harness Rules in lieu of late Rampal Singh, father of the petitioner. According to the petitioner, his father, who was an employee of respondents, died in harness in 1990. It appears that respondent No. 5, who is the uncle of the petitioner, by playing fraud has got an appointment under the Dying-in-Harness Rules in lieu of late Rampal Singh, father of the petitioner. Petitioner made a complaint to that effect and after enquiry the report has been submitted before the District Magistrate-respondent No. 2, but the respondent No. 2 has not taken any decision uptil date and he is keeping the matter pending and the effect of the inaction of the respondents is that respondent No. 5 is taking the benefit of illegal appointment, for which he is not eligible. I have considered the issue and perused the record. Under the Rules, the dependent of the deceased, who died in harness, are entitled to get the appointment according to rules. The first preference is given to the wife and then son and daughter or dependent. Brother of an employee is legally not entitled, in case the wife and son is surviving. This Court is not aware how the respondent No. 5 has been provided appointment, but now as the matter is still pending before respondent No. 2 District Magistrate on the basis of report submitted by the Sub Divisional Magistrate, the District Magistrate is directed to hold a proper enquiry and to record finding to that effect on the basis of material on record that how the appointment has been given to respondent No. 5 under the Dying-in-Harness Rules and who was the authority who has provided the appointment to the respondent No. 5 treating him to be dependent of late Rampal Singh. It is further directed that if ultimately the District Magistrate-respondent No. 2 on the basis of relevant record and after giving opportunity to respondent No. 5 and petitioner, comes to the conclusion that any forgery has taken place and on the basis of forged documents the respondent No. 5 has obtained the appointment, a proper decision like cancellation of appointment or otherwise will be taken by the respondent No. 2. The decision to that effect as directed by this Court should be taken by the respondent No. 2 within a period of two months from the date of production of a certified copy of this order. The writ petition is disposed of accordingly. No order as to costs." 5. The decision to that effect as directed by this Court should be taken by the respondent No. 2 within a period of two months from the date of production of a certified copy of this order. The writ petition is disposed of accordingly. No order as to costs." 5. On perusal of the record, I find that the impugned order dated 15.11.2010 has been passed by the respondent no. 3-Deputy Collector/Up Ziladhikari and not by the District Magistrate as directed by this Court in the above noted order dated 2.8.2010. 6. Learned counsel for the petitioner, placing reliance on paragraphs 14 to 26 of the judgment of Hon'ble Apex Court in the case of MD Zamil Ahmed vs. State of Bihar and others, (2016) AIR SC 2237, submits that under identical circumstances termination order of the petitioner was set aside. 7. Relevant paragraphs 14 to 26 of the aforesaid judgment are quoted as under: "14. Keeping in view the peculiar undisputed facts of the case and having regard to the totality of the circumstances, we are of the considered view that the State was not justified in terminating the Appellant's services. In other words, the ground on which the Appellant's services were terminated by the State after a period of 15 years of Appellant's appointment does not appear to be well founded. This we say for the following reasons: 15. Firstly, the Appellant and wife of the deceased at the time of seeking compassionate appointment did not conceal any fact and nor filed any false or incorrect document/declaration. On the other hand, both of them disclosed their true family relations and conditions prevailing in the deceased family on affidavit. 16. Secondly, the Appellant, who is the brother of the deceased, undertook to maintain the family of the deceased in the event of his securing the compassionate appointment and he accordingly also gave such undertaking to the State. 17. Thirdly, there was no one in the family of the deceased to claim compassionate appointment except the Appellant who, as mentioned above, was the close relative of the deceased, i.e., real younger brother and used to live with the deceased. He was otherwise eligible to claim such appointment being major, educated and only male member in the family. 18. 17. Thirdly, there was no one in the family of the deceased to claim compassionate appointment except the Appellant who, as mentioned above, was the close relative of the deceased, i.e., real younger brother and used to live with the deceased. He was otherwise eligible to claim such appointment being major, educated and only male member in the family. 18. Fourthly, the Appellant after securing the employment throughout maintained the family of the deceased in all respects for the last more than 15 years and he is continuing to do so. 19. In the light of aforementioned reasons, which rightly persuaded the State to grant compassionate appointment to the Appellant, we do not find any justification on the part of the State to dig out the Appellant's case after 15 years of his appointment and terminate his services on the ground that as per the State policy, the Appellant did not fall within the definition of the expression "dependent of deceased" to claim compassionate appointment. 20. The fact that the Appellant was younger brother of the deceased was within the knowledge of the State. Similarly, the State was aware that the brother does not fall within the definition of dependent at the relevant time and still the State authorities obtained the undertaking from the Appellant that he would maintain the family of the deceased once given the appointment. 21. In our considered view, the aforesaid facts would clearly show that it was a conscious decision taken by the State for giving an appointment to the Appellant for the benefit of the family members of the deceased who were facing financial hardship due to sudden demise of their bread earner. The Appellant being the only close relative of the deceased could be given the appointment in the circumstances prevailing in the family. In our view, it was a right decision taken by the State as a welfare state to help the family of the deceased at the time of need of the family. 22. In these circumstances, we are of the view that there was no justification on the part of the State to woke up after the lapse of 15 years and terminate the services of the Appellant on such ground. 22. In these circumstances, we are of the view that there was no justification on the part of the State to woke up after the lapse of 15 years and terminate the services of the Appellant on such ground. In any case, we are of the view that whether it was a conscious decision of the State to give appointment to the Appellant as we have held above or a case of mistake on the part of the State in giving appointment to the Appellant which now as per the State was contrary to the policy as held by the learned Single Judge, the State by their own conduct having condoned their lapse due to passage of time of 15 years, it was too late on the part of the State to have raised such ground for cancelling the Appellant's appointment and terminating his services. It was more so because the Appellant was not responsible for making any false declaration and nor he suppressed any material fact for securing the appointment. The State was, therefore, not entitled to take advantage of their own mistake if they felt it to be so. The position would have been different if the Appellant had committed some kind of fraud or manipulation or suppression of material fact for securing the appointment. As mentioned above such was not the case of the State. 23. It is for this reason, we are of the view that action on the part of welfare State in terminating the Appellant's service on such ground cannot be countenanced. We, therefore, disapprove the action taken by the State. 24. In the light of foregoing discussion, we allow the appeal, set aside the impugned orders and in consequence allow the writ petition filed by the Appellant (writ Petitioner) and quash the Appellant's termination order dated 23.06.2005 (Annexure-P-4 of SLP). 25. As a consequence thereof, the Respondent-State is directed to reinstate the Appellant in service with all consequential benefits such as payment of full back wages payable from the date of termination (23.06.2005) till the date of reinstatement in service. The Appellant is also entitled to claim his seniority and notional promotions as per rules. It be fixed accordingly. 26. 25. As a consequence thereof, the Respondent-State is directed to reinstate the Appellant in service with all consequential benefits such as payment of full back wages payable from the date of termination (23.06.2005) till the date of reinstatement in service. The Appellant is also entitled to claim his seniority and notional promotions as per rules. It be fixed accordingly. 26. Let the Appellant be reinstated in service within a month as an outer limit and the arrears of back wages, as directed, be paid to the Appellant within three months by the Respondent-State." 8. In the present case, although there was a specific direction to the District Magistrate to pass necessary orders, however the order has been passed by the authority subordinate to him i.e. respondent no. 3-Deputy Collector/Up Ziladhikari. As such, the authority concerned has not complied with the directions of this Court dated 2.8.2010. Apart from that, there was specific observations of this Court in the order dated 2.8.2010 that the District Magistrate shall hold a proper enquiry and record finding to that effect on the basis of material on record that how the appointment could have been given to the respondent no. 5 under the Dying-in-Harness Rules and as to whether any forgery has taken place or not. The impugned order does not reflect that any finding regarding forgery has been recorded. On the contrary, record prima facie reflects that proceedings of compassionate appointment were undertaken on the affidavit of Smt. Bhagwati Devi, wife of the deceased employee and the petitioner, who had given undertaking to maintain the family of the deceased employee, admittedly worked for about 19 years before the order of termination. 9. The interest of the respondents no. 4 and 5 is reflecting in making such complaint as respondent no. 4 was claiming appointment on compassionate ground for respondent no. 5, her son. Now despite the notice they have not come forward to contest the present petition. 9. The interest of the respondents no. 4 and 5 is reflecting in making such complaint as respondent no. 4 was claiming appointment on compassionate ground for respondent no. 5, her son. Now despite the notice they have not come forward to contest the present petition. The Hon'ble Apex Court in the case of Zamil Ahmed has considered the issue as to whether brother of the deceased could have been granted appointment in such circumstances and granted relief in favour of the petitioner setting aside the termination order on the ground that the complaint was made after 15 years whereas at the time of compassionate appointment undertaking was given and the petitioner was maintaining the family of the deceased employee for 15 years and for such long period no grievance was raised. 10. However, a perusal of the impugned order reflects that in his statement dated 6.2.2009 the petitioner has stated that Smt. Bhagwati Devi has given her affidavit willingly on 10.12.1990. He has further categorically stated that he is paying Rs. 700/- per month for maintenance of family of Smt. Bhagwati Devi since 1991, however subsequently in his clarification dated 15.6.1990 he stated that the show cause notice is incorrect and misconceived and has stated that his initial appointment was not made under the Dying-in-Harness Rules and he was appointed on being found suitable. Thus, a contrary stand has been taken subsequently by the petitioner before the authority concerned. The finding on the issue as to whether the documents are forged or not, has not been given in the impugned order, which was passed by the authority lower in rank to the Collector/District Magistrate, who has directed to decide the matter by the order of this Court dated 2.8.2010 passed in Writ Petition No. 44816 of 2010. Although in the impugned order, there is a reference to the order dated 25.10.2010 passed by the District Magistrate, however, prima facie, the same does not reflect compliance of the order of this Court dated 2.8.2010 by the District Magistrate. 11. Under such circumstances, the present petition stands allowed. The impugned orders dated 15.11.2010 is quashed. The matter is remanded back to the respondent no. 11. Under such circumstances, the present petition stands allowed. The impugned orders dated 15.11.2010 is quashed. The matter is remanded back to the respondent no. 2 (District Magistrate/Collector, Jhansi) for decision afresh, however, on the basis of the available record as from the impugned order it appears that the opportunity of hearing had already been granted to both the parties and their statement had already been recorded by the State authorities. However, he is at liberty to summon the affected parties, if he so desires or requires while deciding the issue on merits. 12. The respondent no. 2 (District Magistrate/Collector, Jhansi) shall look into the totality of circumstances and shall pass fresh orders in this regard, preferably within a period of two months from the date of production of certified copy of this order. 13. No order as to costs.