MD ZAMIL AHMED Vs STATE OF BIHAR
Bench: J. CHELAMESWAR,ABHAY MANOHAR SAPRE
Case number: C.A. No.-004815-004815 / 2016
Diary number: 7906 / 2014
Advocates: CHANDRA PRAKASH Vs
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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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