Central Administrative Tribunal - Delhi
Satlok S/O Shri Prem Singh vs Municipal Corporation Of Delhi on 10 April, 2012
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.2026/2011 Order reserved on 3rd April 2012 Order pronounced on 10thApril 2012 Honble Shri M.L. Chauhan, Member (J) Honble Smt. Manjulika Gautam, Member (A) Satlok s/o Shri Prem Singh r/o House No.331 Vill Ishapur Dhansa, New Delhi .. Applicant (By Advocate: Dr. S.P. Sharma) Versus 1. Municipal Corporation of Delhi (through its Commissioner) Civic Centre, Delhi 2. Dy. Commissioner MCD NG Zone, Najafgarh New Delhi 3. Shri Veer Ashok Anjana s/o Shri Gian Chand r/o 1558-F, Nawada Mohalla Najafgarh, New Delhi-45 ..Respondents (By Advocate: Shri Balendu Shekhar for respondent Nos.1 & 2 None for respondent No.3) O R D E R
Shri M. L. Chauhan:
The applicant has filed this OA against the impugned order dated 15.9.2010 whereby the penalty of removal from service was imposed upon him by the disciplinary authority. The applicant has also challenged the order dated 15.3.2011 passed by the appellate authority whereby his appeal was rejected and the order passed by the disciplinary authority was upheld.
2. Briefly stated, facts of the case are that the mother of the applicant Smt. Bhagwanti Devi, who was working as Safai Karamchari since 31.7.1981 with Municipal Corporation of Delhi (MCD) Najafgarh Zone, expired on 17.9.1993. The applicant, who is the eldest son of the deceased employee, submitted an application dated 27.2.1996 for compassionate appointment. The applicant also submitted a declaration to the effect that his father, namely, Shri Prem Singh is not employed. Based upon such declaration, the applicant was given appointment on compassionate grounds on the post of Safai Karamchari in place of his deceased mother Smt. Bhawani Devi vide office order dated 21.2.1997 (Annexure P-5).
3. Subsequently, a complaint was received against the applicant regarding his illegal activities and investigation was conducted by the Vigilance Cell of DEMS in this regard and it was found that the applicant has given wrong information to the Department that his father Shri Prem Singh is not in any job. On investigation, it was further found that the applicant also submitted a wrong affidavit in this regard whereas Shri Prem Singh, father of the applicant, was employed as Chowkidar in Govt. Boys Senior Secondary School, Dhansa, Delhi. It was also found that the applicant had also produced wrong date of birth of his father as 20.4.1940 instead of 20.4.1950. Thereafter, a charge sheet was issued against the applicant and gravamen of the charge against the applicant is that he committed gross misconduct, which is unbecoming of municipal employee inasmuch as he got the employment in MCD on compassionate ground in place of his deceased mother, namely, Smt. Bhagwani by giving false information/affidavit and thus contravened Rule 3 (1) (i) (ii) & (iii) of CCS (Conduct) Rules, 1964 as made applicable to the employees of MCD. The inquiry was conducted and ultimately charge against the applicant was found proved, which led to the removal from service of the applicant vide aforesaid impugned order, which order has been upheld by the appellate authority. It is on the basis of these facts the applicant has filed the present OA, thereby praying for quashing the impugned orders, with a further prayer that the respondents may be directed to reinstate him in service.
4. Notice of this application was given to the official as well as private respondents. Facts, as stated above, have not been disputed. In the reply affidavit filed on behalf of respondent Nos. 1 & 2, it has been stated that the applicant got employment in MCD as Safai Karamchari on compassionate grounds in place of his deceased mother by giving false information/affidavit. It is further stated that the father of the applicant was working as Chowkidar in Govt. Boys Senior Secondary School, Dhansa, New Delhi as per letter dated 9.8.2002 submitted by the Vice Principal of the school and thus the applicant managed to obtain employment on compassionate grounds on the basis of forged documents. It has also been stated that the applicant got the employment in MCD in place of his deceased mother by intentionally and dishonestly giving false information/affidavit.
5. The applicant has filed the rejoinder affidavit, thereby reiterating the submissions made in the OA.
6. We have heard the learned counsel for the parties and gone through the material placed on record.
7. It cannot be disputed that all public employments must be in consonance with the Article 14 of the Constitution of India. Exceptions carved out, therefore, are the cases where appointments are to be given to the widow/husband/dependent children of the employee, who died in harness. Such an exception carved out with a view to see that the family of the deceased employee, who has died in harness, does not become destitute. Further, as per the policy, only one member can be granted compassionate appointment, that too, in a case where family of the deceased employee is in penury conditions. If the matter is viewed on the basis of the aforesaid principle, which has been enunciated by the Apex Court in catena of decisions, the question, which requires consideration, is whether the applicant could have been given appointment on compassionate grounds.
8. The case projected by the respondents is that the applicant has obtained the appointment on compassionate grounds by playing fraud giving false declaration to the effect that father of the applicant is not employed whereas as per the certificate given by the Vice Principal of the school, the father of the applicant is working as Chowkidar in the Govt. School. At this stage, it will be useful to quote the certificate dated 9.8.2002 given by the Vice Principal of the concerned School, which thus reads:-
Certificate that Sh. Prem Singh s/o Andhu Ram resident of Village & PO Issapur N Delhi 110 073 is working in our school since last 16 years as a Chowkidar. He was appointed as a Chowkidar vide order no.783 dated 26.9.83 No.F. 4/18 (165) DDE/17895-950 dated 26.9.83 Issapur. The position of Sh. Prem Singh, Chowkidar was in Issapur village after that he was transferred in Govt. Co Ed Sr. Sec School Dhansa N. Delhi -73 still than he is working in this school till today that is 9th August 2002. The truthness has been stated in this letter. His date of birth is according to the Service Book is 20.04.1950 (20th April Ninety fifty) Sd/-
09.08.02 (T.P. Varshney)
9. As can be seen from this certificate, it is evident that the father of the applicant was appointed as Chowkidar on 26.9.1983 in Issapur New Delhi and subsequently he was transferred in the Govt. Co-Ed Sr. Sec. School Dhansa, New Delhi where he is working till the date of the issue of the certificate, i.e., 9.8.2002. Thus, the fact remains that the father of the applicant was a regular employee, who was given appointment on the post of Chowkidar in a Government School and not in a private institution.
10. In order to see whether the applicant has given a false declaration, as contended by the MCD, learned for respondents-MCD has brought to our notice the declaration given by the applicant at the time of seeking appointment on compassionate grounds. As can be seen from the said declaration given by the applicant, it is evident that against the name of his father, namely, Shri Prem Singh, it has been stated that he has not been employed. Thereafter he has given the age of other family members, including himself and has shown his age as 21 years. Thereafter he has given a declaration that whatever he has stated is correct and in case in future it is found that his declaration is wrong, his services may be dispensed with. Thereafter the applicant has appended his signature. The signature of the applicant has been identified and contents of such declaration have been verified by one Shri Dhanraj, who is a permanent employee of MCD. Thereafter, one Shri O P Bhalwani, Welfare Officer, has appended his signature verifying the contents of the aforesaid declaration to be correct. It was only thereafter the applicant was given appointment on compassionate grounds. Thus, from the perusal of this declaration given by the applicant as well as certificate of the Vice Principal of the concerned School, it is evident that the father of the applicant was employed as Chowkidar in Government School and the applicant has withheld this information purposely with a view to obtain employment on compassionate grounds. Thus, the only conclusion from these two documents, which can be drawn, is that the applicant procured the appointment on the basis of false declaration that his father is not employed anywhere. We are of the view that the appointment procured by the applicant on the basis of this false declaration is void and non-est in the eyes of law.
11. The defence put forth by the applicant that the paper for seeking compassionate appointment was moved on the suggestion and initiation of one Shri Veer Ashok Anjana, who claimed himself as Prabhari & Mahamantri of Municipal Safai Karagar Congress (Reg.) Delhi State and it is stated that the said Shri Veer Ashok Anjana was caught red handed by Anti-Corruption Branch of Delhi, while accepting bribe on 12.6.2011 and FIR was lodged in which the applicant was witness, cannot be accepted, inasmuch as, as already stated above, the declaration given by the applicant in his application form was verified by one Shri Dhanraj and not by Shri Veer Ashok Anjana. In case Shri Veer Ashok Anjana was instrumental in getting the requisite document completed while submitting an application for compassionate appointment, in that eventuality, he should have verified and attested the contents of the declaration form instead of one Shri Dhanraj.
12. Be that as it may, fact remains that the applicant has given a declaration in which he has specifically stated that his father, namely, Shri Prem Singh is not employed. We have also perused the grounds of an appeal, which has been attached with the OA, in that the applicant has nowhere stated that his father was not employed and also not a regular employee. It is for the first time in the OA that in paragraph 4.2 the applicant has stated that all his brothers and sisters were school going, as such they were dependents on the deceased and his father was merely doing night duty of Chowkidar in a School at Dhansa, for which he was paid very nominal amount and there was regular service of the father of the applicant, whereas in the rejoinder affidavit, the applicant has stated that his father was not a regular employee in a specific pay scale but he was working as Chowkidar in the School at Dhansa where he goes for a few hours at night and paid nominal amount. This plea taken by the applicant for the first time that his father was being given nominal amount without specifying the salary, which his father was drawing, cannot be accepted on the face of the certificate given by the Vice Principal of the School, which clearly shows that the father of the applicant was appointed as regular Chowkidar and subsequently he was transferred to another school and has almost completed 19 years of service when the said certificate was given. This certificate clearly proves that the father of the applicant was a regular employee and there is nothing on record to suggest that the family of the deceased was in destitute condition so as to warrant appointment on compassionate grounds.
13. As already stated above, fact remains that the applicant has procured appointment on compassionate grounds by giving a false declaration fraudulently, which vitiates the entire action, as such his appointment was void abinitio. In this case the services of the applicant were terminated after holding a regular inquiry, whereas in such situation where the appointment to a civil post is vitiated by fraud, forgery or irregularity, provisions of Article 311 of the Constitution are not attracted and the services of such person, who has been illegally appointed, can be terminated without holding any inquiry. This is what the Three-Judge Bench of the Apex Court in R Vishwanatha Pillai v. State of Kerala & others, 2004 SCC (L&S) 350 has held. That was a case where the appellant before the Apex Court obtained an appointment in service on the basis that he belonged to a scheduled caste community. When it was found by the Scrutiny Committee that the appellant before the Apex Court did not belong to scheduled caste communicate, he was served with a notice. However, pursuant to the judgment in Kumari Madhuri Patil v. Additional Commissioner, (1994) 6 SCC 241, the Government of Kerala constituted a Scrutiny Committee by a notification dated 8.5.1995. After examining the documents produced by the appellant, the Scrutiny Committee by a speaking order dated 18.11.1995 rejected the claim of the appellant. This order was upheld by the High Court of Kerala and the Apex Court. On 24.4.1997, at the instance of the appellant, the Tribunal directed that the service of the appellant be not terminated without following the procedure laid down in Article 311 and the Rules. However, the High Court of Kerala reversed that decision. Thereafter, the appellant was dismissed from service by an order dated 12.10.2000. Against the said order, the appellant filed the appeal before the Apex Court wherein it has been held that a person procuring an appointment in a post meant for reserved category candidate on the basis of false caste certificate is not a person holding the civil post within the meaning of Article 311 of the Constitution. It was also held that such appointment is not an appointment in the eyes of law hence dismissed person does not attract Article 311. It was further held that a person illegally appointed is not an appointment holding a civil post and appointment procured against a reserved post by producing a false certificate is void and non-est. At this stage it will be useful to quote paragraph 15 of the judgment rendered in R Vishwanatha Pillais case (supra), which thus reads:-
This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eyes of law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under the Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Caste. In view of the finding recorded by the Scrutiny Committee and upheld upto this Court he has disqualified himself to hold the post. Appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India. As appellant had obtained the appointment by playing a fraud he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practising fraud or deceit such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all.
14. Thus, the ratio as laid down by the Apex Court is fully attracted in the facts and circumstances of the present case. Accordingly, we are of the view that the applicant herein is not entitled to any relief.
15. Reliance placed by the learned counsel for applicant on the decision of the Apex Court in the case of Commissioner of Police & others v. Sandeep Kumar, (2011) 4 SCC 644 is misconceived and is not applicable in the facts and circumstances of the case. That was a case where the respondent before the Apex Court applied for the post of Head Constable. He was selected but in the application form against column 12(a) whether the applicant involved in a criminal case, the respondent before the Apex Court wrote No, whereas the fact remains that the applicant was involved in a criminal case registered under Sections 325/34 IPC, though acquitted. It was in this context the Apex Court held that it is true that in the application form, the respondent did not mention that he was not involved in criminal case under Section 325/34 IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified and thereafter the Apex Court held that at any event, it was not such a serious offence like murder, decoity or rape and hence a more lenient view should be taken in the matter and thus action of the Department whereby the candidature of the applicant was rejected on this ground was not upheld.
16. According to us, the applicant cannot take any assistance from this judgment inasmuch as that was a case where the respondent qualified the examination, which examination was held in consonance with Article 16 of the Constitution by advertising the post and holding the selection in accordance with rules and the Apex Court held that the minor offence in which the respondent before the Apex Court has been acquitted shall not come in his way for giving him regular appointment. Here, the applicant has not been selected in consonance with the provisions of Article 16 of the Constitution but he was given employment as an exception to the aforesaid Article, which has been carved out with a view to see that the family of the deceased employee, who has died in harness, does not become destitute. Thus, only those persons can be given compassionate appointment where the family is in indigent circumstances and where the family can subsist and one of the members of the family is contributing towards the income of the family, the exception carved out for the purpose of granting compassionate appointment cannot be resorted to. We have already held that the applicant has procured appointment by practising fraud and giving false declaration that his father, Shri Prem Singh, is not employed anywhere, which go to the root of the matter, as such we are of the view that the initial appointment of the applicant on compassionate grounds is void and non-est.
17. For the foregoing reasons, the OA is found to be bereft of merit and is accordingly dismissed without any order as to costs.
( Smt. Manjulika Gautam ) ( M. L. Chauhan ) Member (A) Member (J) /sunil/