Allahabad High Court
Anoop Kumar Srivastava vs State Of U.P. And 3 Others on 1 October, 2021
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 2 Case :- WRIT - A No. - 6911 of 2021 Petitioner :- Anoop Kumar Srivastava Respondent :- State of U.P. and others Counsel for Petitioner :- Shri Ashok Khare (Senior Advocate), Siddharth Khare Counsel for Respondent :- C.S.C. Hon'ble Suneet Kumar, J.
1. Heard learned counsels for the parties, perused the record with the assistance of the learned counsels for the parties.
2. The petitioner was working as Deputy Ranger in the Forest Department with fourth respondent, Divisional Director, Social Forestry, Forest Division, Lalitpur. By the instant petition, petitioner is assailing the order dated 31 May 2021, passed by third respondent, Divisional Director, Bundelkhand Forest Circle, Jhansi, whereby, the services of the petitioner was terminated for the reason that petitioner had obtained compassionate appointment by suppressing material fact that his mother was an employee receiving salary from the Government.
3. The facts, briefly stated, is that petitioner is the son of an ex-employee, Sri Santosh Kumar Srivastava, who died in harness while working on the post of Forest Guard on 13 October 2002. Petitioner applied for compassionate appointment under U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 19741. The application form was accompanied with an affidavit of his mother stating that she has no objection to the appointment of the petitioner on compassionate basis. Accordingly, petitioner came to be appointed on 31 December 2002, by the Conservator of Forest, Jhansi. Since then, petitioner is performing his duties. It is urged that petitioner was subsequently confirmed, thereafter, on 17 January 2019, petitioner was promoted on the post of Deputy Ranger. On a complaint received through the office of the District Magistrate alleging that petitioner had obtained the appointment suppressing the fact that his mother was working as an Assistant Teacher in a basic school and receiving salary from Government, consequently, a show cause notice dated 20 January 2021, came to be issued to the petitioner. Petitioner responded to the notice by submitting reply on 24 January 2021, and a supplementary reply on 16 March 2021. The third respondent on considering the reply passed the impugned order terminating the services of the petitioner on the ground that petitioner was not eligible, nor entitled to compassionate appointment as he nor his mother had disclosed that they both were not entitled to compassionate appointment under Rules, 1974.
4. Learned counsel for the petitioner submits that petitioner could not have been terminated after putting in 19 years of service with the department; petitioner had applied on prescribed proforma which did not contain a column requiring disclosure as to whether the spouse of the deceased employee is gainfully employed with the Government; petitioner being a confirmed employee could not have been imposed punishment of termination without following the procedure mandated under the U.P. Government Servant (Discipline and Appeal) Rules, 19992; no enquiry was set up against the officers who were responsible for appointing the petitioner.
5. Per contra, learned Standing Counsel, appearing for respondents, submits that petitioner was not eligible for appointment under the Rules, 1974; there is a specific bar prohibiting the appointment of such person whose either parent is gainfully employed with the Government; the material fact of being employed with Government was suppressed by the petitioner, as well as, his mother, which was not disclosed in the notarized affidavit filed by them. It is further urged that since mother of the petitioner was gainfully employed, the condition for appointment under Rules, 1974, as not fulfilled i.e. the family was not in financial distress; there was no occasion for initiating disciplinary proceedings against the petitioner under the Rules, 1999, as petitioner is not being terminated for misconduct committed during the course of employment, but on the ground that the very foundation/basis for compassionate appointment rests on misrepresentation/suppression of material fact i.e. employment of his mother; the factum of the spouse/mother being gainfully employed at the time of appointment of the petitioner has not been disputed either before the competent authority or before this Court; the principle of equity/sympathy would not apply against a statutory prohibition/provision.
6. Rival submissions fall for consideration.
7. The facts, inter se parties, is not in dispute. The petitioner, on the death of the ex-employee, came to be appointed on compassionate basis on 31 December 2002. Admittedly, on the said date mother of the petitioner (wife of the deceased employee) was an Assistant Teacher of a basic school receiving salary from the State exchequer. The factum that mother was employed was not disclosed either by the petitioner or his mother. Thereafter, petitioner was confirmed and also promoted on the post of Deputy Ranger. On a complaint being forwarded from the office of the District Magistrate, enquiry came to be set up and on the enquiry report a show cause notice came to be issued to the petitioner on 20 January 2021, to which the petitioner responded by submitting his reply on 24 January /16 March 2021. The factum of employment of his mother was not disputed. It is submitted that petitioner had no occasion to disclose that his mother was employed as there was no column in the form supplied by the respondents requiring him to disclose as to whether there was an earning member in the family. It is further submitted that it is not a case of fraud or misrepresentation. It is further urged that the petitioner after putting in 19 years of service cannot be terminated at this belated stage.
8. It is not being disputed by the learned counsel for the petitioner that the benefit of compassionate appointment cannot be claimed by a dependent of a deceased employee under Rules, 1974, in case the spouse is gainfully employed with the Government or its undertaking. In the given facts, the mother of the petitioner was gainfully employed. This fact is not disputed and was not disclosed rather suppressed. The affidavit of the mother clearly states that the family is in financial distress but she did not disclose that she is an employee receiving salary from the State Government.
9. Rule 3, 4, 5 and 6 of Rules, 1974, is extracted for the purposes of the instant case:
3. Application of the rules. - These rules shall apply to recruitment of dependants of the deceased Government servants to public services and posts in connection with the affairs of State of Uttar Pradesh, except services and posts which are within the purview of the Uttar Pradesh Public Service Commission.
4. Overriding effect of these rules. - These rules and any orders issued thereunder shall have effect notwithstanding anything to the contrary contained in any rules, regulations or orders in force at the commencement of these rules.
5. Recruitment of a member of the family of the deceased. - (1) In case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purposes, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules, .....
6. Contents of application for employment. - An application for appointment under these rules shall be addressed to the appointing authority in respect of the post for which appointment is sought but it shall be sent to the Head of Office where the deceased Government servant was serving prior to his death. The application shall, inter alia, contain the following information :
(a) the date of the death of the deceased Government servant; the department in which he was working and the post which he was holding prior to his death;
(b) names, age and other details pertaining to all the members of the family of the deceased, particularly about their marriage, employment and income;
(c) details of the financial condition of the family; and
(d) the educational and other qualifications, if any, of the applicant.
10. On bare perusal of the Rules, it is amply clear that the rules apply to recruitment of dependents of deceased government servant and these rules have an overriding effect notwithstanding anything to the contrary contained in any other rules, regulations and orders. One member of the deceased government servant's family who is not already employed and the spouse of the deceased government servant is not already employed under the government would be given a suitable employment under the government service. The rule further mandates that the applicant seeking appointment under these Rules shall make an appropriate application clearly stating therein the details pertaining to all members of the family of the deceased particularly about their employment, income and financial condition of the family. In other words, the condition precedent for considering the application for appointment under Rules, 1974, is that the claimant must be a family member of the deceased employee, he should not be in the employment of the government and the spouse of the deceased employee is not already employed under the government. In the event of any one prohibitory condition exists, the claim of the applicant for compassionate appointment cannot be considered. Petitioner, herein, admits that his mother/spouse of the deceased employee was employed with the government. Further, the factum of employment was suppressed in the affidavit filed her. Accordingly, petitioner's appointment is void - non est.
11. The submission of learned counsel for the petitioner that disciplinary proceedings should have been initiated under Rules, 1999, before terminating the services of the petitioner is untenable for the reason that respondents have not imposed any penalty upon the petitioner on an alleged misconduct committed by the petitioner during the course of his employment, and/or for dereliction of duty. The foundation upon which the appointment of the petitioner rested i.e., being dependent of an employee who died in harness has fallen apart on discovery of the fact that petitioner was not entitled to appointment under Rules, 1974. Had he disclosed the factum of the employment of his mother, he would have been ineligible for applying for compassionate appointment in view of the specific bar mandated in the Rules.
12. The relevant provisions of Rules, 1999, is extracted:
1. Short title and commencement. - ...
(1) ....
(2) ....
(3) They shall apply to Government servants under the rule-making power of the Governor under the proviso to Article 309 of the Constitution [....]
2. (h) "Government servant" means a person appointed to public services and posts in connection with the affairs of the State of Uttar Pradesh;
(i) ....
(j) "Service" means the public services and posts in connection with the affairs of the State of Uttar Pradesh.
3. Penalties. - The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed upon the Government servants:
Minor Penalty ....
Major Penalty i. ....
ii. ....
iii. Removal from the service which does not disqualifies from future employment iv. Dismissal from the service which disqualifies from future employment.
7. Procedure for imposing major penalties
(i) ....
xx
(v) ....
(vi) Where the charged Government servant appears and admits the charges, the Inquiry Officer shall submit his report to the disciplinary authority on the basis of such admission.
xx
13. On denial of the imputation of misconduct by a government servant, in that event, a formal enquiry is to be held by leading evidence against the employee. But on admission of the misconduct, the disciplinary authority can straight away impose penalty. The submission of the learned counsel for the petitioner that the provisions of Rules, 1999, was not followed before imposing penalty of removal from service is unfounded. Upon admission of the factum of not being eligible for compassionate appointment by the petitioner before the authority, as well as, before this Court nothing further remained to be proved in a disciplinary proceedings in view of Rule 7(vi) of Rules, 1999.
14. Three Judge Bench of the Supreme Court in Chairman and Managing Director, FCI and others Versus Jagdish Balaram Bahira and others3, upon revisiting the law where the incumbent obtained benefit of admission/appointment based on false social status certificate held:
"... where a benefit is secured by an individual - such as an appointment to a post or admission to an educational institution - on the basis that the candidate belongs to a reserved category for which the benefit is reserved, the invalidation of the caste or tribe claim upon verification would result in the appointment or, as the case may be, the admission being rendered void or non est."
15. In that event, the employer would not be required to initiate regular departmental proceedings under the Rules for the reason that the verification of the certificate by the competent authority would bind the disciplinary authority. In such a case, the delinquent employee can be removed from service upon a show cause notice. The disciplinary authority would have no occasion to return a finding in a proceedings to a charge.
16. U.P. Government Servant Conduct Rules, 19564, and Rules, 1999, does not define misconduct. Rule 3 of Conduct Rules, 1956 reads thus:
"3. General - (1) Every Government servant shall at all times maintain absolute integrity and devotion to duty.
(2) Every Government servant shall at all times conduct himself in accordance with the specific or implied orders of Government regulating behaviour and conduct which may be in force."
17. Supreme Court in State of Punjab and others vs. Ram Singh Ex-Constable5, referred to the following definitions of misconduct.
"Any unlawful behaviour by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly and failure to act in the face of an affirmative duty to act6".
"Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgression of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected.7"
18. In the facts of the case in hand, the very foundation on which the service of the delinquent employee rests, upon being demolished, the consequence would follow i.e. automatic removal from service. The removal would not tantamount to imposing a ''penalty' upon a Government servant. There is a, distinction between termination for ''misconduct' committed during the course of service and termination or dispensing with the service of an employee whose appointment rests on fraud and misrepresentation. The latter is not a consequence of imposition of a penalty but rendering the appointment void, non est from the very inception. The factum of employment of the spouse of the deceased employee is admitted by the petitioner, nothing further was required to be done by the respondent employer in an disciplinary enquiry. In view of specific statutory bar, the respondents were justified in passing the impugned order. The family was not in financial distress, admittedly, the mother of the petitioner was receiving salary from the government. The continuation of the petitioner in service would tantamount to perpetuating fraud and misrepresentation.
19. The next submission of learned counsel for the petitioner that since petitioner has rendered about 19 years of service, he could not have been terminated belatedly on having been confirmed by the respondents. The Supreme Court in Ram Saran Vs. IG of Police, CRPF and others8, in the given facts repelled a similar argument, holding that the appellant therein having rendered about 27 years of service would be of no consequence as he had obtained appointment on a certificate forging his date of birth. Court relied on the decision rendered in R. Vishwanatha Pillai Vs. State of Kerala and others9 , paragraph 19 whereof reads thus:
"19. It was then contended by Shri Ranjit Kumar, learned Senior Counsel for the appellant that since the appellant has rendered about 27 years of service, the order of dismissal be substituted by an order of compulsory retirement or removal from service to protect the pensionary benefits of the appellant. We do not find any substance in this submission as well. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. The appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His appointment to the post was void and non est in the eye of the law. The right to salary or pension after retirement flows from a valid and legal appointment. ... A person who seeks equity must come with clean hands. He, who comes to the court with false claims, cannot plead equity nor would the court be justified to exercise equity jurisdiction in his favour. ... No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practising fraud."
20. Similar view was taken by Supreme Court in Regional Manager, Central Bank of India Vs. Madhulika Guru Prasad Dahir and others10. The appointment was obtained on a post meant for scheduled caste by deceit and fraud. The plea of length of service rendered was rejected by the Court observing that there is absolutely no justification of the claim of the respondent in respect of the post merely on the ground that she had worked on the post for over 20 years. The appointment was usurped by misrepresentation and deception. The Court further held that equity, sympathy and generosity have no place where the original appointment rests on a false certificate.
21. The same reasoning can be applied to the facts of the instant case. Petitioner herein had obtained appointment, admittedly, on misrepresentation and suppression of material factum about employment of his mother with the Government. A false affidavit was submitted that the family is in financial distress. Had the petitioner disclosed the factum of employment of his mother, petitioner was not entitled to appointment under Rules, 1974. Therefore, having entered in service by deceitful means, rendering of long period of service does not entitle the petitioner to any relief on equity. The plea of length of service would not condone the fraud, misrepresentation and deceit. Appointment would be hit by Article 14 and 16 of the Constitution of India depriving eligible persons from being considered for the post.
22. Learned counsel for the petitioner could not point out any illegality, irregularity or perversity in the order impugned herein so as to warrant interference.
23. The writ petition lacks merit. Dismissed.
24. However, since petitioner has put in 19 years of service, the respondents are restrained from making recovery of the salary paid to the petitioner during the course of employment. The impugned order dated 31 May 2021 shall stand modified to that extent.
Order Date :- 1.10.2021 S.Prakash