NAUSHAD AHMAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner, invoking writ jurisdiction of this court under Article 226 of the Constitution of India, has prayed for quashing of an order dated 10.7.1998 passed by the Deputy Development Commissioner cum Chief Executive Officer, Zila Parishad, Khagaria, whereby the petitioner was dismissed from service with immediate effect. The petitioner has further prayed for commanding the respondent to allow the petitioner to continue on the post of Chaukidar, Zila Parishad, Inspection Bunglow, Gogri without any break.

(2.) SHORT fact of the case as pleaded in the writ petition is that the petitioner was appointed on the post of Chaukidar , Inspection Bunglow, Gogri, in the month of February, 1983 on compassionate ground. The grand father of the petitioner namely Doman Ali while functioning as Chaukidar, Inspection Bungalow, Gogri, died due to cancer on 6.8.1981 and thereafter, the petitioner who was looking after his grand mother, was appointed on compassionate ground. He thereafter, worked at different places continuously without any break and he received salary up to the month of October, 1993 and thereafter he was not paid salary till the date of filing of the writ petition. As per petitioner vide letter dated 3.5.1995 (Annexure 5) he was directed to submit his appointment letter and also to give explanation with regard to discrepancy in respect of his date of birth. He gave explanation along with an affidavit stating therein that his appointment letter was misplaced. It was also indicated that his correct date of birth was 28.4.1964 as mentioned in the certificate of Class VII and date of birth mentioned in the matriculation certificate i.e. 1.1.1967 was incorrect, even thereafter, by order contained in Annexure 1 he was dismissed from service. Sri Laxmi Narayan Das, learned counsel for the petitioner while assailing the order has firstly argued that the order impugned whereby the petitioner has been dismissed from service has been passed without initiating departmental proceeding and as such order impugned is liable to be set aside. He submits that petitioner being grand son of the deceased employee was appointed on compassionate ground in the year 1983 itself and he without any break was continuously discharging his duty till the date of order of dismissal, and as such, the order impugned is contrary to the principle of natural justice. It was argued that though at the time of initial appointment of the petitioner in the year 1983 grand son of deceased employee was not entitled for being appointed on compassionate ground but subsequently in the year 1995 the Government of Bihar had come out with an instruction whereby grand son was also made eligible to be appointed on compassionate ground. According to Sri Das since the petitioner has continued on his post for such a long time and even before order of dismissal the notification was issued enabling grand son of deceased employee to be appointed on compassionate ground, the petitioner was not required to be dismissed on such ground. He further submits that it is true that before the authority concerned certificates showing contradictory date of birth of the petitioner were brought on record but in the matriculation certificate of the petitioner error had occurred in respect of date of birth of the petitioner. The petitioner's correct date of birth as 28.4.1964 was recorded in the school leaving certificate, which was initially produced by the petitioner at the time of his appointment. However, subsequently in the matriculation certificate date of birth of the petitioner was incorrectly recorded as 1.1.1967. After noticing that error had occurred in the matriculation certificate the petitioner tried to get the same corrected and as such he approached the Zila Parishad for returning the same ( matriculation certificate ) so that he may take steps for getting the date of birth corrected in the matriculation certificate. Despite his best effort Zila Parishad had never returned the said matriculation certificate. According to learned counsel for the petitioner in view of date of birth recorded in the school leaving certificate the petitioner had attained majority at the time of appointment. In any event appointment of the petitioner made long back was not required to be interfered with. Learned counsel for the petitioner submits that government circular dated 20th December 1995 entitling even maternal grand son in addition to wife, son, daughter etc. for being appointed on compassionate ground was noticed by a single bench of this court in a case reported in 2005 (3) PLJR 124 (Gangia Devi & Anr. vs. The State of Bihar & Ors). He submits that from the government circular itself it has been noticed by this court that even maternal grand son was entitled to be appointed on compassionate ground. He further submits that keeping in view the fact that subsequently in the year 1995 the grand children were made entitled for being appointed on compassionate ground, the petitioner's appointment though made in the year 1983 without such provision was legalized by virtue of notification by the Government of Bihar in the year 1995. He has referred to paragraph no. 6, 7 and 9 of Division Bench judgment of this court reported in 1990 (2) PLJR 668 (Brajendra Prasad Poddar vs. The Sate of Bihar and others ). He has further relied on a single bench judgment of this court reported in 2006(4) PLJR 45 (Bivekanand Singh and Anr. vs. State of Bihar & Ors. ).

(3.) SRI Nikesh Kumar, learned counsel appearing on behalf of respondent no. 4 submits that since the initial appointment of the petitioner was itself void ab initio, there was no requirement for holding a departmental enquiry but only after asking for explanation from the petitioner his service was required to be dismissed, which has been done in the present case. He submits that in the year 1983 a grand son was not at all entitled to be appointed on compassionate ground. There was no such circular or instruction but illegally he (petitioner) was appointed on compassionate ground after death of his grand father namely, Doman Ali. Fact remains that at the time of death of grand father of the petitioner father of the petitioner and his uncle were alive and father of the petitioner was also employed. Since the father of the petitioner and son of the deceased employee was already in government service, there was no need to provide employment on compassionate ground, even then, one way or the other the petitioner being grand son of the deceased employee was appointed on compassionate ground, which was illegal and void ab initio. Initially the petitioner had produced school leaving certificate showing his date of birth as 28.4.1964. However, subsequently during his service for getting promotion the petitioner produced his matriculation certificate in which his date of birth was mentioned as 1st January, 1967. Sri Nikesh Kumar submits that at the time of initial appointment in the year 1983 had petitioner submitted his matriculation certificate showing his date of birth as 1 st January, 1967 the petitioner would have not been eligible to be appointed being aged about 16 years and as such the petitioner was asked to clarify the position and produce his appointment letter. From November, 1993 his salary was also stopped. Despite request made by the Zila Parishad the petitioner initially did not respond and even vide Annexure 5 to the writ petition in the year 1995 reminder was also issued and finally the petitioner was dismissed from service vide Annexure 1 to the writ petition on two grounds. Firstly, at the time of appointment being grand son he was not entitled to be appointed and secondly, contradictory certificates showing date of birth were brought on record. Since the appointment was itself illegal and void ab initio, there was no requirement for initiating a regular departmental enquiry. Sri Nikesh Kumar, learned counsel for the Zila Parishad, on the point that in a case of illegal appointment there is no requirement for initiation of a regular departmental proceeding or even for issuance of notice, has relied on number of judgments of this court as well as the Hon'ble Apex Court. He has firstly referred to 2005(2) PLJR 448 ( Ram Babu Kumar vs. The State of Bihar & Ors. ). He has specifically referred to paragraph no. 8, 9 and 12 of the said judgment, which are quoted hereinbelow: "8. It is not in dispute that at the time when the petitioner's father died, his mother was in service who still continues to be an employee of the State Government. In view of the resolution of the State Government, in case of the other spouse of the employee dying in harness, the dependent children are not entitled to be appointed on compassionate ground. It has been held so by a Division Bench of this Court in the case of Ashok Kumar Choudhary vs. The State of Bihar & Ors., 2000(4) PLJR 651 and in para ­ 13 thereof, it has been clearly held that if both the husband and wife are in Government service and one of them die, in that situation, the benefit of appointment on compassionate ground will not be available to the dependent of the family. Relevant portion of the judgment reads as follows: "13. According to the aforesaid provision, if both the husband and wife are in Government service and one of them dies; in that situation the benefit of appointment on compassionate ground will not be available to the dependant of the family. If the aforesaid sub clause 1 (Anga) is read in isolation without considering the other provisions of the Circular /Instructions including the application form as contained in Annexure 1 and the object of appointment on compassionate ground, then the submission advanced on behalf of counsel for the petitioner has some force, but after taking into consideration other provisions of the Circular / Instruction and the object of compassionate appointment, I am not inclined to accept the submission advanced on behalf of the petitioner. If any statutory provision which is subject matter of consideration is clear and unambiguous, then the plain meaning has to be given, unless the said meaning defeats the object of the provision or leads to anomaly, absurdity and inconsistency. If the provision is capable of more than one meaning the principle of purposive construction should be applied, so that the purpose and object for which the provision has been made are given effect to. The sole purpose of appointment on compassionate ground is to tide over the financial crisis in case of emergency. If at the relevant time the family has financial resources to meet the hardship, then no dependent can be appointed on compassionate ground. If the provision as contained in clause 1(Anga) is interpreted in the manner as suggested by the petitioner, then that would frustrate the very object of appointment on compassionate ground. If one of the spouses dies and the other spouse retires, then the dependent is to be appointed on compassionate ground even though the source of livelihood is available to the family in the shape of pension and other retiral benefits. If appointment on compassionate ground is made in such a situation, then it would be an appointment on the ground of descent and not to meet the sudden hardship caused to the untimely death of an employee." 9. Principle of natural justice is not an unruly horse and its application depends upon the facts and circumstances of each case. Here, the petitioner undisputedly was not entitled to be appointed on compassionate ground. Petitioner is not in a position to assail the order terminating the service on merit but on technical plea that before terminating his service, he was not given any opportunity. Nothing has been placed on record to show that the petitioner's appointment was valid and in the light of resolution of the State Government, he was entitled for appointment on compassionate ground. In fact, the Division Bench of this Court in the case of Ashok Kumar Choudhary (supra) has clearly held that such dependent shall not be entitled for appointment on compassionate ground. In such a situation, I am of the opinion that failure to give notice itself shall not vitiate the order. The view which I have taken finds support from the Full Bench judgment of this Court in the case of Awadhesh Kumar Choudhary (supra). 12. Mr. Prakash lastly submits that the petitioner had not suppressed the fact of her mother being as employee of the State Government and he has been appointed taking into account the said fact and hence, later on, his service cannot be terminated on the ground of his mother being an employee of the State Government. In this connection, he has drawn my attention to the statement made in the application form. I do not find any substance in this submission of the learned counsel. The question of fraud and misrepresentation in the present case has no relevance at all. Petitioner, on his own pleading, is not entitled to be appointed on compassionate ground. In fact, the petitioner has not assailed the termination of his appointment on that ground. In a case in which the dependent is not entitled to be appointed on compassionate ground whether he had made false representation or committed fraud has no bearing at all to determine the validity of appointment.