Full Judgment Text
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CASE NO.:
Appeal (civil) 429 of 2007
PETITIONER:
National Institute of Technology & Ors.
RESPONDENT:
Niraj Kumar Singh
DATE OF JUDGMENT: 02/02/2007
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
[Arising out of SLP (C) No. 10221 of 2006]
S.B. SINHA, J :
Leave granted.
This appeal is directed against a judgment and order dated 8.05.2006
and 16.05.2006 passed by a learned Single Judge of the Jharkhand High
Court in a proceeding initiated suo motu under Section 12 of the Contempt
of Courts Act, 1971.
One Shri B.P. Sinha was a Senior Storekeeper working with the
Appellant \026 Institute. He died leaving behind his widow one Smt. Vidhya
Devi on 17.06.1986. Allegedly, she made an application for an appointment
of the respondent herein on compassionate ground. It was claimed that he
was the grandson of the said late Shri B.P. Sinha. He was appointed on
daily wages on 14.02.1987 and his services were extended from time to
time.
After a gap of about 15 years, i.e., on 16.04.2001, the respondent
made an application for his appointment on compassionate ground on a
regular basis. Affidavits were allegedly filed by the said Vidhya Devi in
support thereof; pursuant whereto and in furtherance whereof, the
respondent was given an appointment in the post of a Chowkidar, i.e., in
Class IV grade on temporary basis. On 14.12.2001, the said Vidhya Devi
sought for appointment of her son Ashutosh Kumar while claiming so she
also requested for cancellation of the respondent’s appointment. As her
request was not acceded to, she filed a writ petition in the High Court of
Jharkhand which by reason of a judgment and order dated 10.01.2002 was
dismissed holding:
"4. From the entire facts stated in the counter affidavit
which is supported by documents, it is prima facie, clear
that the petitioner has made false statements in paras 8
and 9 of the writ application. This is very serious matter.
If the contention of the respondents made in the counter
affidavit is conclusively proved, then the petitioner shall
be liable to be prosecuted and punished in accordance
with law.
5. So far the claim of the petitioner for appointment of
her son, Asutosh Kumar on compassionate ground is
concerned, the same is misconceived. Admittedly,
petitioner’s son was born in 1985 and the husband of the
petitioner died in 1986. In other words, in 1986 when the
petitioner’s husband died, her son was a minor aged one
year three months. After attaining majority i.e. after 18
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years, no appointment can be given to the petitioner’s son
on compassionate ground. So far that relief is concerned,
the writ application is dismissed.
6. Before parting with the order I must observe that
the respondent \026 RIT would be at liberty to proceed
against such persons who have made false representation
and filed affidavit."
A Letters Patent Appeal was preferred thereagainst was also
dismissed by a Division Bench of the said High Court by an order dated
11.07.2002.
In a separate writ petition, one Mithilesh Kumar sought for
appointment on compassionate ground inter alia on the premise that his
father, who was in service of the Institute and died in harness on 5.01.1988;
wherein a learned Single Judge of the said High Court while dismissing the
same on the ground that a long time has elapsed from the date of death of his
father observed:
"If one or other person have been given appointment
after long delay say after about 12 years of the death in
recent past, within last one year or some person has been
illegally appointed giving wrong information, petitioner
may bring the same to the notice of the Principal, R.I.T.
Jamshedpur, who will take care. In such case, if any
illegality is found in the matter of appointment, the
authority after notice to the concerned party, may pass an
appropriate order."
The Principal of the Appellant \026 Institute received a letter from the
said Mithilesh Kumar wherein it was alleged that several persons had been
granted appointment after a long delay of about 10 years. The name of the
respondent herein also figured therein. It was requested:
"I, therefore, request you to kindly look into the matter
carefully and take necessary steps and pass appropriate
order in the matter as directed by the Honourable High
Court."
A contempt petition was initiated by the said Mithilesh Kumar
alleging that the directions issued by the said learned Judge were not
complied with. In the proceeding initiated under the Contempt of Courts
Act, notices were issued against the appellant. Cause was shown by it. By
an order dated 7.03.2003, the High Court directed:
"In the circumstances, I allow the opposite parties,
further six weeks time. The competent authority may
issue show cause notice to the illegal appointees and ask
them to submit reply why their service being terminated
because of illegal appointment on compassionate
grounds. Three weeks time may be given to such
employees.
On receipt of such reply, they will go through it and find
out whether any one of other has been appointed
illegally, against the scheme, after such delay or not.
One week’s time is allowed for such scrutiny.
Thereafter, the O.Ps will obtain necessary order from the
Board of Governors within one week and issue
appropriate order, in accordance with law.
In case, the court’s order is not complied within the said
period of six weeks, petitioner may bring the same to the
notice of the court for initiation of proceeding against the
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Director, NIT, Jamshedpur and the members of the Board
of Governors."
A notice to show cause thereafter was issued by the appellant, in
terms whereof the respondent was asked to show cause as to why his
appointment shall not be cancelled. Pursuant thereto cause was shown. The
appointment of the respondent thereafter was cancelled by an order dated
1.03.2005 stating:
"We have gone through the contents of your replies and
after considering the same as there was no justified
reasons submitted by you, your said reply is found to be
unsatisfactory. This is not a disciplinary/ departmental
proceeding and your request for hearing under
commission of enquiries act is not admissible.
In view of the above and in pursuance of the directive of
Hon’ble High Court dated 11.03.03 in contempt case
(Civil) No. 866 of 2002, we hereby terminate your
services from NIT Jamshedpur with immediate effect,
that is from the date of issue of this letter."
The order came to be questioned before the High Court. A contempt
proceeding was initiated suo motu by a learned Single Judge of the High
Court observing:
"10. Inspite of the aforesaid facts, respondents on the
basis of order passed in contempt case terminated the
services of the petitioner by order dated 01.03.2005
without initiating any disciplinary / departmental
proceeding although petitioner continued in service for
the last 15-16 years. In fact, by terminating the services
of the petitioner, the respondents have flouted the
judgment passed by the learned Single Judge and
affirmed by the Division Bench of this Court.
11. Considering the entire facts narrated herein above, I
am of the view that the contention of the respondents in
the Counter affidavit filed in this case cannot be
appreciated. Prima facie it appears that while passing the
order of termination, respondents have in fact ignored the
judgment and order passed by the learned Single Judge
and affirmed by the Division Bench of this Court.
12. However, before passing appropriate order, I direct
respondent no. 2 and 3, namely, Director, National
Institute of Technology, Jamshedpur and Registrar,
National Institute of Technology, Jamshedpur to appear
in person before this Court on 16.05.2006."
It was directed that the contemnors shall appear in person and file
show cause, if they so desire. A show cause was filed by them. The
Registrar of the Appellant \026 Institute appeared in person. An application
was filed by the Director of the Appellant \026 Institute inter alia stating that
the order of termination was passed by the then director of the institute, Dr.
D. Bhattacharya. In view of the said assertions, the High Court observed:
"Mr. P.K. Prasad, learned counsel appearing for the
respondents, on instruction, submitted that Dr. D.
Bhattacharya is presently working in I.I.T. Kharagpur.
Hence the petitioner is directed to add Dr. Bhattacharya
as party respondent.
Considering the averments made in the I.A. petition this
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case is adjourned to 29.06.2006 to enable the present
Director to file show cause and to reconsider the order of
termination of the services of the petitioner and take a
decision in the matter. The petitioner shall take steps for
service of notice on the present Director both by
registered post and courier for which steps must be taken
within a week."
The question which arises for consideration is as to whether in a
situation of this nature, the High Court was justified in initiating proceedings
under the Contempt of Courts Act and that too suo motu.
Admittedly, the appellant is a State within the meaning of Article 12
of the Constitution of India. It, therefore, in the matter of appointment, is
under a constitutional obligation to give effect to the constitutional scheme
of equality as enshrined under Articles 14 and 16 of the Constitution of
India.
Appointment on compassionate ground would be illegal in absence of
any scheme providing therefor. Such scheme must be commensurate with
the constitutional scheme of equality.
This Court in Punjab Water Supply & Sewerage Board v. Ranjodh
Singh & Ors. [2006 (13) SCALE 426], has observed:
"\005The statutory bodies are bound to apply the rules of
recruitment laid down under statutory rules. They being
’States’ within the meaning of Article 12 of the
Constitution of India, are bound to implement the
constitutional scheme of equality. Neither the statutory
bodies can refuse to fulfil such constitutional duty, nor
the State can issue any direction contrary to or
inconsistent with the constitutional principles adumbrated
under Articles 14 and 16 of the Constitution of India\005"
All public appointments must be in consonance with Article 16 of the
Constitution of India. Exceptions carved out therefore are the cases where
appointments are to be given to the widow or the dependent children of the
employee who died in harness. Such an exception is carved out with a view
to see that the family of the deceased employee who has died in harness does
not become a destitute. No appointment, therefore, on compassionate
ground can be granted to a person other than those for whose benefit the
exception has been carved out. Other family members of the deceased
employee would not derive any benefit thereunder.
This Court in Auditor General of India and Others v. G. Ananta
Rajeswara Rao [(1994) 1 SCC 192] held:
"5. A reading of these various clauses in the
Memorandum discloses that the appointment on
compassionate grounds would not only be to a son,
daughter or widow but also to a near relative which was
vague or undefined. A person who dies in harness and
whose members of the family need immediate relief of
providing appointment to relieve economic distress from
the loss of the bread-winner of the family need
compassionate treatment. But all possible eventualities
have been enumerated to become a rule to avoid regular
recruitment. It would appear that these enumerated
eventualities would be breeding ground for misuse of
appointments on compassionate grounds. Articles 16(3)
to 16(5) provided exceptions. Further exception must be
on constitutionally valid and permissible grounds.
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Therefore, the High Court is right in holding that the
appointment on grounds of descent clearly violates
Article 16(2) of the Constitution. But, however, it is
made clear that if the appointments are confined to the
son/ daughter or widow of the deceased government
employee who died in harness and who needs immediate
appointment on grounds of immediate need of assistance
in the event of there being no other earning member in
the family to supplement the loss of income from the
bread-winner to relieve the economic distress of the
members of the family, it is unexceptionable. But in
other cases it cannot be a rule to take advantage of the
Memorandum to appoint the persons to these posts on the
ground of compassion."
In Yogender Pal Singh v. Union of India [AIR 1987 SC 1015], this
Court held :
"While it may be permissible to appoint a person
who is the son of a police officer who dies in service or
who is incapacitated while rendering service in the Police
Department, a provision which confers a preferential
right to appointment on the children or wards or other
relatives of the police officers either in service or retired
merely because they happen to be the children or wards
or other relatives of such police officers would be
contrary to Article 16 of the Constitution."
In Government of Andhra Pradesh, General Administration,
Hyderabad and Others v. D. Gopaiah and Others [2006 (6) ALT 553 (FB)],
a Full Bench of the Andhra Pradesh High Court noticing the aforementioned
judgment, opined :
"By reason of Articles 14 and 16 of the
Constitution of India, great hopes and aspirations were
generated in the minds of the people of India that
employment shall not be given on descent. Public
employment is considered to be public wealth. The
economy of the State has taken a tilt from agriculture to
public employment and the growth rate of employment
has increased to 34%. On a plain reading, Article 16 of
the Constitution of India carries no exception."
It was further stated :
"The matter relating to grant of compassionate
appointment only in limited situation took its root in
public employment. The State and the Central
Governments issued several circulars, took various policy
decisions and also changed their policy decisions from
time to time resulting in spurt in litigation. A close study
of the circulars issued by the State as also the pattern of
litigations generating therefrom leads us to take judicial
notice about -gross abuse of the schemes and inherent
lack of safeguards.
Before further adverting to the aforementioned
question, we may notice that the petitioners themselves
stated that in the State of Andhra Pradesh, no
appointment had been made as a ban had been in vogue
since 1987. The appointments are being made only on
contract basis by way of schemes, which stricto sensu
violate the recruitment rules and Articles 14 and 16 of the
Constitution of India. A lot of employment is generated
through the populist scheme of regularisation of services.
There are schemes for employment for displaced persons,
schemes for taking over the services of the taken over
projects, landless persons and so on and so forth. A
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person can obtain appointment in terms of
aforementioned schemes or on contract basis, on political
pressures, on demand of trade unions, as also on the
pressures of the Nongovernmental organisations. The
long and short of the matter is that unless there is
somebody to push his case, an employment cannot
ordinarily be obtained by a citizen in terms of Articles 14
and 16 of the Constitution of India. The majority of the
population faces the paradox of articulated programmes
for obtaining employment.
The schemes for grant of compassionate
appointment on medical invalidation, as noticed
hereinbefore, had been made wider and wider. The State
has for one reason or the other compromised with the
basic principles underlying grant of public employment
and has deviated from the constitutional norms;
sometimes it widened the scope and ambit of grant of
appointment on compassionate ground to such an extent
that it had to backtrack its steps. The State’s policy
decision in this regard had never been on firm root. They
took different steps at different times depending on the
whims and caprice of the concerned officer or acted on
pressure of the Employees’ Unions.
The law interpreting Articles 14 and 16 of the
Constitution of India in this regard has also undergone
ups and downs."
he Appellant \026 Institute has made a scheme. The said scheme must be
read in conformity of the aforementioned decision of this Court.
The appointment on compassionate ground, thus, could have been
offered only to a person who was the widow of the deceased or a dependent
child. Admittedly, the son of the deceased Ashutosh Kumar was only one
year old at the time of his father’s death. He could not, thus, have been
given any appointment on compassionate ground. It may be true that Smt.
Vidhya Devi filed an application for grant of appointment on compassionate
ground in favour of the respondent. But, it now stands admitted that he was
not the natural grandson of late Shri B.P. Sinha but was a grandson of his
cousin brother. Therefore, he was not entitled for appointment in terms of
the scheme of the Institute. The Institute, therefore, committed an illegality
in granting him such an appointment. Moreover the purported the
appointment on compassionate ground had been given in 2001, i.e., after
more than 15 years from the date of death of the said Shri B.P. Sinha.
If the appointment of the respondent was wholly illegal and without
jurisdiction and such an appointment had been obtained by practising fraud
upon the appellant, the same was a nullity. We are, however, not oblivious
of the fact that the same attained finality in view of the fact that the writ
petition of the said Vidhya Devi was dismissed. Despite the same, the
principles of res judicata shall not apply in a case of this nature. It is well-
known that where an order is passed by an authority which lacks inherent
jurisdiction, the principles of res judicata would not apply, the same being
nullity. [See Chief Justice of A.P. v. L.V.A. Dixitulu, 1979 (2) SCC 34 and
Union of India v. Pramod Gupta (D) By LRs. and Ors. (2005) 12 SCC 1]
Moreover, any appointment in violation of the constitutional scheme
would also be rendered a nullity. [See Secretary, State of Karnataka & Ors.
v. Umadevi & Ors. (2006) 4 SCC 1, Indian Drugs & Pharmaceuticals Ltd. v.
Workman, Indian Drugs & Pharmaceuticals Ltd. 2006 (12) SCALE 1,
Municipal Corporation, Jabalpur v. Om Prakash Dubey [2006 (13) SCALE
266].National Fertilizers Ltd. and Ors. v. Somvir Singh (2006) 6 SCALE
101 and Ranjodh Singh (supra)]
The question, therefore, should have been considered by the learned
Single Judge having regard to the aforementioned legal position.
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We may, furthermore, notice that in the writ petition filed by
Mithilesh Kumar, this Court made certain observations. A contempt petition
was also filed by him wherein certain directions were issued.
If pursuant to or in furtherance of such a direction of the High Court,
albeit in a different proceeding, the Appellant \026 Institute had initiated a
proceeding against the respondent and after giving him an opportunity of
showing cause terminated his services, it must be held to have acted bona
fide. No proceedings under the Contempt of Courts Act should have,
therefore, been initiated against the appellants.
Furthermore, the writ petition of the respondent was yet to be heard
on merit. Before the writ petition was itself disposed of, in our opinion, the
learned Judge should not have initiated a contempt proceeding and
particularly when the same had been done (assuming that the same was
wrong) to give effect to another order passed by the High Court.
We, therefore, are of the opinion that the impugned judgment cannot
be sustained which is set aside accordingly. The appeal is allowed. No
costs.