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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

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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

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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

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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

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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.  

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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

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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

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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.  

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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

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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

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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

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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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