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2019 DIGILAW 79 (ALL)

Neelesh Kumar v. Chief Medical Superintendent

2019-01-09

SANGEETA CHANDRA

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JUDGMENT : Sangeeta Chandra, J. 1. Heard Sri Yogesh Kumar, holding brief of Sri A.C. Tiwari, learned counsel for the petitioner and Mr. Ankit Gaur, learned Standing Counsel appearing on behalf of the State respondents. 2. The petitioner is aggrieved by the order dated 19.4.2005 passed by the Chief Medical Superintendent, District Hospital, Banda by which the services of the petitioner have been terminated on the ground of submitting a false affidavit. 3. It has been submitted that one Chandra Shekhar - the father of the petitioner was serving as a class-IV employee in District Hospital, Banda and he died in harness in an accident on 24.2.1998. 4. The date of birth of the petitioner is 5.9.1984 and at the time when his father died on 24.2.1988 the petitioner was a minor his mother moved an application that the petitioner should be considered for compassionate appointment when he attains majority. On 28.8.2002 when the petitioner became eligible he moved an application before the Chief Medical Superintendent, District Hospital, Banda for being appointed on Class-IV post on compassionate grounds. The Chief Medical Superintendent, District Hospital, Banda by his order dated 29.8.2002 gave appointment to the petitioner as a Ward Boy. 5. The petitioner continued to work for about three years when suddenly order of termination was passed on 19.4.2005 by the Chief Medical Superintendent, District Hospital, Banda, which has been impugned in this writ petition stating therein that the mother of the petitioner was also working in the District Hospital meant for women at Banda, at the time when application for appointment was submitted and appointment of the petitioner was made by the then Chief Medical Superintendent. As per the 5th Amendment to the 1974 Rules notified on 20.1.1999 the petitioner's case for compassionate appointment could not have been considered had this fact come to the notice of the authorities. A show cause notice was issued to the petitioner on 3.1.2005 directing him to submit his explanation as to why the mother of the petitioner while submitting her affidavit in support of appointment on compassionate ground had mentioned incorrect facts. A show cause notice was issued to the petitioner on 3.1.2005 directing him to submit his explanation as to why the mother of the petitioner while submitting her affidavit in support of appointment on compassionate ground had mentioned incorrect facts. Since the petitioner could not explain as to why his mother had given such affidavit and he himself also had given an affidavit to the extent that he shall continue to look after his mother and other siblings after he receives compassionate appointment, the Chief Medical Superintendent observed that the order of appointment was obtained on misrepresentation and concealment of facts and, therefore, the petitioner is being removed from service with immediate effect. Any salary that the petitioner had been given was proposed to be recovered through separate proceedings initiated in this regard. 6. It has been submitted that the Vth Amendment to the Rules were notified on 20.1.1999 and cannot be applied with retrospective effect since the father of the petitioner had died in 1998, the cause of action for grant of compassionate appointment arose in 1998 and, therefore, there was no requirement to submit any such affidavit as to whether any other member of the deceased government servant's family was in government service as has been mentioned in the order of termination. 7. It has also been submitted that on a perusal of paragraph 5 of the affidavit referred by the respondent no. 1 in the order impugned, it is evident that the mother of the petitioner had only given affidavit to the effect that she had not been given compassionate appointment after the death of her deceased husband. Such an affidavit cannot be taken to be an affidavit to the effect that she was not working in the same district in the Women's Hospital as a Safai Karamchari. 8. The learned counsel for the petitioner has also placed reliance upon a judgment of Hon'ble Supreme Court rendered in Canara Bank and Another vs. M. Mahesh Kumar, (2015) 7 SCC 412 , where compassionate appointment was refused to the dependent of a deceased employee of Canara Bank on the ground that financial condition of the dependents of the deceased employee was good and the scheme for giving of compassionate appointment dated 8.5.1993 had been replaced by the Scheme dated 4.2.2005 which provided for giving only ex-gratia payment to such a dependent. The Hon'ble Supreme Court after referring to Umesh Kumar Nagpal vs. State of Haryana and Others, (1994) 4 SCC 138 and Sushma Gosain and Others vs. Union of India and Others, (1989) 4 SCC 468 observed regarding the object for giving compassionate appointment and considered the question whether the Scheme issued in 2005 providing for ex-gratia payment or the Scheme in operation in 1993 which provided for compassionate appointment, is applicable to the case of the respondent. 9. The Supreme Court observed in paragraph 13 that the respondent's father died on 10.10.1998 and the dependent applied in time for compassionate appointment under the old Scheme, which was in force at that time. His case was rejected on 13.6.1999 recording that there were no indigent circumstances for providing employment to the dependent. Again on 7.11.2001, the Bank itself had sought for particulars in respect to respondent's employment and the cause of action to be considered for appointment arose when the Circular No. 154/1993 dated 8.5.1993 was in force. As such the claim could not have been rejected as per the 2005 Scheme providing for ex-gratia payment. 10. In Md. Zamil Ahmed vs. State of Bihar and Others, (2016) 12 SCC 342 the compassionate appointment of the brother of the deceased Police Constable, who died in harness was set aside after 15 years of service on the ground that brother of the deceased did not fall within the definition of family as per the Rules for dying in harness applicable in the State. The Hon'ble Supreme Court observed in paragraph 22 as follows: "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. The Hon'ble Supreme Court observed in paragraph 22 as follows: "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 above or a case of mistake on the part of the State in giving appointment to the appellant which now as per the Stat 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." 11. The judgment rendered in Canara Bank's case (supra) is inapplicable to the facts of the case as in the context of the petitioner, his father had died in 1998, but the petitioner applied in 2002. At the time when the petitioner applied the 5th Amendment of 1974 Rules had already been notified on 20.1.1999. 12. In so far as the judgment rendered in Md. Zamil Ahmed (Supra) is concerned it was the admitted case of the State that there was no misrepresentation on the part of the appellant. The mistake had occurred in making of the appointment of brother deceased Police Constable on the part of the Government as the definition of family of government servant was not looked into by the respondent State. Such a mistake could not be allowed to be rectified after a lapse of 15 years by termination of service of the appellant. 13. The mistake had occurred in making of the appointment of brother deceased Police Constable on the part of the Government as the definition of family of government servant was not looked into by the respondent State. Such a mistake could not be allowed to be rectified after a lapse of 15 years by termination of service of the appellant. 13. In the context of the petitioner, both the petitioner and his mother had given affidavits in terms of the 5th Amendment Rules 1974 before the authorities. In the affidavit of the mother in paragraph 5 (it was cleverly drafted affidavit), it was stated that: ^^;g fd eq>s 'kiFkdrhZ ds ifr ds ej.kksijkUr vuqdEik Lo#i esjh fu;qfDr vHkh rd ugha gq;h gSA** This mention in paragraph 5 has to be read in the context of paragraph 3 and 4 of the affidavit of the mother of the petitioner which are also being quoted herein below: ^^;g fd eq>s 'kiFkdrhZ ,oa esjs nks ukckfyx iq=ksa dks vius cMs iq= uhys'k dqekj dks e`rd vkfJr ds #i esa fu;qDr gksus esa dksbZ vkifRRk ugha gS vkSj u Hkfo"; esa gksxhA ;g fd eq>s 'kiFkdrhZ ds yMds dh fu;qfDr vko';d gS ftlls og thou Ik;ZUr esjs o esjs NksVs cPpks dk lgh <ax ls Hkj.k&iks"k.k dj ldsA** The petitioner in his turn had given a separate affidavit in which in paragraph 4 he had stated thus: ^^;g fd ;fn eSa 'kiFkdrkZ viuh eka vkSj NksVs HkkbZ;ks dk Hkj.k&iks"k.k Bhd ls u dj ldwa rks eq>s bl fu;qfDr ls gVk fn;k tk, rks eSa U;k;ky; dh 'kj.k ugha yawxkA** 14. It is the admitted case by the petitioner that his mother Smt. Raju was already working as Safai Karamchari in the District Womens' Hospital when the father of the petitioner also working as Safai Karamchari in District Hospital died an accident in 1998. 15. This Court having considered the pleadings in the writ petition and in the counter affidavit filed by the respondents is of the considered opinion that the fifth amendment to the Rules of 1974 notified on 20.1.1999 clearly prescribes therein that no member of the family of the deceased employee should be in service. 16. The petitioner's father died on 24.2.1998 however his claim for compassionate appointment was considered only in 2002 and he was given his appointment on 29.8.2002 in pursuance of the application made by him on 28.8.2002. 16. The petitioner's father died on 24.2.1998 however his claim for compassionate appointment was considered only in 2002 and he was given his appointment on 29.8.2002 in pursuance of the application made by him on 28.8.2002. The Rules had already been amended and his case could not have been considered in pursuance of the earlier Rules, but was considered under the amended Rules and therefore an affidavit was asked for from the petitioner that no other family member was in service. 17. Considering the affidavits filed by the petitioner and his mother which have been filed alongwith counter affidavit, this Court finds that the appointment on compassionate ground was obtained by the petitioner on concealment and misrepresentation of fact. 18. This Court sitting in equity jurisdiction under Article 226 of the Constitution does not find any good ground to interfere in the orders impugned. 19. However, since the petitioner has worked for three years and was given salary for the said period such salary should not be recovered by the respondents. 20. This writ petition is dismissed. 21. No order as to costs.