MD ZAMIL AHMED Vs. STATE OF BIHAR & ORS
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 4815 of 2016, Judgment Date: May 05, 2016
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4815 OF 2016
(ARISING OUT OF SLP(C) NO.11928/2015)
Md. Zamil Ahmed Appellant(s)
VERSUS
The State of Bihar & Ors. Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal is filed against the final judgment and order dated
20.12.2013 of the High Court of Judicature at Patna in L.P.A. No. 758 of
2013 whereby the Division Bench of the High Court dismissed the appeal
filed by the appellant herein against the order dated 08.11.2010 of the
learned Single Judge of the High Court in C.W.J.C. No. 5713 of 2006 in
which it was held that the appellant being the brother of the deceased was
not entitled to claim compassionate appointment. His services were,
therefore, terminated on this ground.
3) In order to appreciate the short issue involved in this appeal, it is
necessary to state a few relevant facts:
4) One Mohd. Rashid Alam, who was working as a Constable in District
Police Force, was killed while on security duty. He left behind his
illiterate wife and four minor children. Since there was no one in the
family to support the widow and the minor children, the widow of the
deceased submitted a petition to the State (Police Department) enclosing an
affidavit giving assurance by the appellant, who is the brother of the
deceased, that he would support the widow and the minor children of the
deceased constable if he is given appointment. Accordingly, Memo No.
1267/P-02 dated 29.02.1991 was issued by the Director General of Police to
appoint the appellant. Vide D.O. No. 1248/91, the appellant was appointed
as constable w.e.f. 02.05.1991 after being declared medically fit on the
post of Constable in the scale of 950-20-1150-25-1400.
5) Thereafter the appellant successfully completed his recruits training
course and since then he had been performing satisfactory duties in various
districts and also taking care of the illiterate widow and four children of
the deceased constable. The appellant also, in the meantime, got married
two daughters of the deceased constable.
6) After 15 years of service, on 04.06.2005, the appellant received a
show cause notice from the senior Superintendent of Police, Patna. In the
show cause notice, it was stated that why the appellant’s services be not
terminated because he being a “devar (brother of deceased)” was not
included in the definition of dependent of the deceased and hence was not
eligible to claim compassionate appointment in the State services.
7) On 10.06.2005, the appellant gave his explanation and stated that
ever since his appointment in February 1991, he has been looking after the
widow and four children of the deceased constable. He gave them education
and still maintaining the family of deceased as Head of the family. He
also explained that his dismissal, after 15 years of satisfactory duty,
would cause undue hardship to the widow and family of the deceased
constable because even as on today, there is no earning member in the
family.
8) The senior Superintendent of Police, Patna did not accept the
explanation offered by the appellant and terminated the services of the
appellant on 23.06.2005 holding his appointment on compassionate ground to
be illegal and against the policy.
9) Aggrieved by the said order, the appellant filed an appeal before the
Inspector General of Police on 01.08.2005.
10) Since the appeal was not decided by the Inspector General of Police,
the appellant filed
petition being Writ Petition No. 5713 of 2006 before the High Court for
quashing the order of termination passed by the senior Superintendent of
Police, Patna with a further prayer to reinstate him with all consequential
benefits or in the alternative to direct the authorities to decide the
appeal filed by him. By order dated 08.11.2010, the learned Single Judge
dismissed the petition. It was held that it was a case of a mistake
committed by the authorities while giving such benefit to the appellant and
hence this is a fit case for termination of appellant’s services.
11) Being aggrieved by the aforesaid order, the appellant filed an appeal
being L.P.A. No. 758 of 2013. By order dated 20.12.2013, the Division
Bench upheld the order of the learned Single Judge and dismissed the
appeal.
12) Against the said order, the appellant has filed this appeal by way of
special leave before this Court.
13) We heard the learned counsel for the parties.
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) 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. 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) 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.
27) Cost of this appeal is quantified at Rs.5000/- and the same be paid
to the appellant by the respondent-State along with the arrears of back
wages.
. ……...................................J.
[J. CHELAMESWAR]
………..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi,
May 05, 2016.
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