REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3242 OF 2009 [Arising out of SLP (Civil) No.6230 of 2007]

State of Chhatisgarh & Ors. …Appellants

Versus

Dhirjo Kumar Sengar …Respondent

J U D G M E N T  

S.B. SINHA, J :   

1. Leave granted.

2. One Chittaranjan Singh Sengar (since deceased) was posted as Head  

Master  of  a  Government  School,  Baradwar,  Dist-Champa,  Janjgir,  

Chhattisgarh.  He was unmarried.  Respondent’s father G.S. Sengar was his  

brother.   Respondent  and  his  father  applied  for  grant  of  a  succession  

certificate  before  the  Civil  Judge,  Class  I,  Distt.  Janjgir.   The  said

application  was  allowed  by  an  order  dated  15.01.1996  passed  by  Civil  

Judge, Class I, Janjgir.

3. In the said application for grant of the said succession certificate, the  

respondent  did  not  make  any  averment  that  he  was  adopted  by  the  said  

Chittaranjan Singh Sengar.

4. Indisputably, Chittaranjan Singh Sengar did not make any nomination  

in  regard  to  his  provident  fund  and  other  dues.   The  said  succession  

certificate  was  produced  before  the  Deputy  Director  (Education)  who  

noticed:

“Legal  succession  certificate  of  Shri  Dheeraj  Kumar  Sengar  S/o  Shri  Ganesh  Singh  Sengar,  legal heirs of Late Shri Chittaranjan Singh Sengar,  R/o Village – Latia, Tahsil – Janjgeer Bilaspur is  forwarded  for  information  and  implementation.  They  produce  his  original  certificate  regarding  qualification before concerned block/ principal for  his observation.”

5. Respondent  filed  an  application  for  appointment  on  compassionate  

ground.  The said application was rejected by the Joint Director Education  

Division, Bilaspur.

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6. However,  despite  the  fact  that  his  application  for  grant  of  

compassionate appointment was rejected by the Joint Director, a purported  

order of compassionate appointment came to be passed in his favour by the  

Deputy Director (Education).  The said offer of appointment, however, was  

cancelled by an order dated 9.06.1997, stating:

“On the basis of above reference and in absence of  Legal  Succession  Letter  your  compassionate  appointment order No. 731/Estab-1/Comp.Appoint  Endorse  No.  96-97  has  been  rejected  from  the  current effect.”

7. Respondent filed an Original Application before the Madhya Pradesh  

Administrative  Tribunal  questioning  the  validity  of  the  said  order  dated  

9.06.1997,  which  by  reason  of  an  order  dated  5.06.2000  was  dismissed,  

holding:

“10. When  anyone  claims  compassionate  appointment on the  basis  of  adoption,  he should  prove  fully  that  he  was  validly  adopted.   The  applicant has failed in discharging the burden.  It  has  to  be  remembered  that  instructions  about  compassionate appointment have to be interpreted  strictly  because  such  appointments  amount  to  a  dilution of Article 14 and 16 of the Constitution.”

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8. Before  the  learned Tribunal,  a  contention as  regards  breach of  the  

principles of natural justice was raised.  The learned Tribunal answered the  

said contention in the following words :

“12. The  applicant  argues  that  no  show  cause  notice was given to him.  This argument has no  force.   The  Supreme Court  has  held  in  State  of  M.P. Vs. Shyama Padhi (AIR 1996 Supreme Court  2219)  and  S.  Mohan  Vs.  Govt.  of  Tamil  Nadu  (1998 SCC (L&S) 1231, that no show cause notice  is necessary in cases of illegal appointments.  The  Supreme Court has also upheld the concept of post  decisional  hearing in  Swadeshi  Cotton  Mills  Vs.  Union of India (1991 (1) SCC 658).  The applicant  was  fully  heard  by  the  Tribunal.   He  could  not  prove beyond doubt that he was validly appointed.  The Supreme Court has observed as follows in the  Board of Mining Examination Vs. Ramjee (1977  (2) SCC 256):

“Natural Justice is no unruly horse, no lurking land  mine nor a judicial cure all.  If fairness is shown by  the decision maker to the man proceeded against,  the  form,  essential  procedural  propriety  being  conditioned by the facts and circumstances of each  situation,  no  breach  of  natural  justice  can  be  complained  of.   Unnatural  expansion  of  natural  justice  without  reference  to  the  administrative  realities and other factors of a given case can be  exasperating.   We  can  neither  be  finical  nor  fanatical  but  should  be  flexible  yet  firm  in  this  jurisdiction.”

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9. A writ petition was preferred thereagainst by the respondent, which by  

reason  of  the  impugned  judgment  and  order  dated  13.09.2006  has  been  

allowed, stating:

“…The impugned order itself would disclose that  in support of his case, the petitioner has produced  not only the deed of adoption as Annexure A-1 but  also  Succession  Certificate  issued  by  the  competent  Court  of  law  as  Annexure  A-2.   It  seems to our mind that learned Tribunal had not  applied  its  mind  to  the  Succession  Certificate  issued by the competent court of law as Annexure  A-2.  It seems to our mind that learned Tribunal  had  not  applied  its  mind  to  the  Succession  Certificate issued by the competent court of law.  It  is  needless  to  state  that  the  Tribunal  has  no  jurisdiction  to  question  the  correctness  of  Succession Certificate Annexure A-2.  The deed of  adoption  and  certificate  of  succession  would  undeniably prove that the petitioner is the adopted  son of the deceased Chitaranjan Singh Sengar who  died  in  harness.   It  is  nobody’s  case  that  the  petitioner  being  adopted  son  of  the  deceased  employee is  not  entitled  to  seek appointment  on  compassionate ground to a suitable post.  If that is  the  position,  the  order  passed by the  department  dated 19.06.1997, we should say, is ex-facie illegal  and untenable in law.”

10. Mr. Atul Jha, learned counsel appearing on behalf of the appellants,  

would contend:

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(i) A large number of documents filed before the Tribunal would in  

no uncertain terms demonstrate that apart from production of the  

purported unregistered deed of adoption which does not carry any  

statutory  presumption,  respondent  has  utterly  failed  to  establish  

that he was the adopted son of the said Chittaranjan Singh Sengar.  

(ii) Grant of succession certificate, by no stretch of imagination, would  

be  a  relevant  factor  for  the  purpose  of  determination  of  the  

question as to whether the adoption was valid or not.

11. Mr.  Raj  Kumar Gupta,  learned counsel  appearing on behalf  of  the  

respondent,  on  the  other  hand,  urged  that  as  the  appointment  had  been  

granted  on  compassionate  ground,  which  having  been  cancelled  without  

observing  the  requirements  of  the  principles  of  natural  justice,  the  same  

cannot be sustained.    

12. Chittaranjan  Singh Sengar  was  the  Head  Master  of  a  Government  

School.  He did not file any nomination in respect of his statutory dues.  As  

he was unmarried,  his  brother  and the respondent  were his natural  heirs.  

Application  for  grant  of  succession  certificate  was  not  filed  by  the  

respondent  alone.   It  was  filed  jointly  by  him and  his  father.   Had  the  

respondent  been  his  adopted  son,  he  would  have  claimed  a  succession  

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certificate only on that basis.  His natural father G.S. Sengar could not have  

been arrayed as an applicant.   No joint  succession certificate,  thus, could  

have been applied for and granted.

13. Various other documents have also been brought on record.  It appears  

from the marksheet of the High School Examination of the respondent that  

his father’s name was shown as Ganesh Singh Sengar.  Similar endorsement  

has been made in the marksheet in his Higher Secondary Examination.

14. Even  the  Principal  of  the  said  school  while  forwarding  the  

respondent’s application for payment of dues of Chittaranjan Singh Sengar  

did not state that the respondent was his adopted son.

15. Appointment  on  compassionate  ground  is  an  exception  to  the  

constitutional scheme of equality as adumbrated under Articles 14 and 16 of  

the  Constitution  of  India.   Nobody  can  claim  appointment  by  way  of  

inheritance.

In  Steel Authority of India Ltd. v.  Madhusudan Das and Ors. [2008  

(15) SCALE 39], this Court held:

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“…This Court in a large number of decisions has  held  that  the  appointment  on  compassionate  ground cannot be claimed as a matter of right. It  must be provided for in the rules. The criteria laid  down therefor, viz., that the death of the sole bread  earner  of  the  family,  must  be  established.  It  is  meant to provide for a minimum relief. When such  contentions  are  raised,  the  constitutional  philosophy  of  equality  behind  making  such  a  scheme  be  taken  into  consideration.  Articles  14  and 16 of the Constitution of India mandate that all  eligible  candidates  should  be  considered  for  appointment in the posts which have fallen vacant.  Appointment on compassionate ground offered to  a  dependant  of  a  deceased  employee  is  an  exception to the said rule. It is a concession, not a  right.”

16. This Court in I.G. (Karmik) v. Prahalad Mani Tripathi [(2007) 6 SCC  

162] carved out an exception to the ordinary rule of recruitment, stating:

“6.  An  employee  of  a  State  enjoys  a  status.  Recruitment of employees of the State is governed  by the rules framed under a statute or the proviso  appended  to  Article  309 of  the  Constitution  of  India.  In  the  matter  of  appointment,  the  State  is  obligated  to  give  effect  to  the  constitutional  scheme of equality as adumbrated under Articles  14 and  16 of  the  Constitution  of  India.  All  appointments, therefore, must conform to the said  constitutional scheme. This Court, however, while  laying emphasis on the said proposition carved out  an  exception  in  favour  of  the  children  or  other  relatives of the officer who dies or who becomes  incapacitated while rendering services in the Police  Department.

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7. Public employment is considered to be a wealth.  It in terms of the constitutional scheme cannot be  given  on  descent.  When  such  an  exception  has  been carved out by this Court, the same must be  strictly  complied  with.  Appointment  on  compassionate  ground is  given  only  for  meeting  the  immediate  hardship  which  is  faced  by  the  family by reason of the death of the breadearner.  When an appointment is made on compassionate  ground,  it  should  be  kept  confined  only  to  the  purpose it seeks to achieve, the idea being not to  provide for endless compassion.”

[See also Mohan Mahto v. Central Coal Field Ltd. and Ors. (2007) 8  

SCC 549]

17. This  Court,  times  without  number,  has  held  that  appointment  on  

compassionate ground should not be granted as a matter of course.  It should  

be granted only when dependants of the deceased employee who expired all  

of a sudden while being in service and by reason thereof his dependants have  

been living in penury.   

The  Government  of  Madhya  Pradesh  had  adopted  a  scheme  for  

appointment on compassionate ground which was circulated to all concerned  

in terms of a letter dated 10.06.1994, stating:

“If  any government  servant  dies  in  harness  then  either  his  widow  or  his  legal  children  (which  includes  the  step  son/  daughter  also)  would  be  

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made available service.  Service wouldn’t be made  available to any other member or relative.”

The nephew of the deceased employee, therefore, was ineligible for  

grant of such appointment.

18.  Appointment, however, was offered to the respondent without taking  

into consideration that he had not been able to establish his relationship with  

the deceased or that he was in fact totally dependant on him.

The  purported  deed  of  adoption  was  not  a  registered  one.   It,  

therefore, did not carry with it a presumption as envisaged under Section 16  

of the Hindu Adoptions and Maintenance Act, 1956.

The adoption was purported to have been recorded on a stamp paper  

of Rs. 2/-.

We  have  noticed  hereinbefore  that  in  the  application  for  grant  of  

succession certificate, G.S. Sengar was described as his father.  Even in the  

marksheets which had been drawn up on the basis of the record maintained  

in the school in which he was studying, his father’s name was G.S. Sengar.  

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It may be correct that for the purpose of proving that the respondent was  

adopted  son  of  the  deceased,  a  registered  deed  of  adoption  was  not  

imperative in character, but then, he was required to prove that datta homan  

ceremony  or  compliance  of  the  other  statutory  conditions  for  a  valid  

adoption had taken place.

In terms of Section 106 of the Indian Evidence Act, the respondent  

having special knowledge in regard thereto, the burden of proving the fact  

that he was adopted by Chittaranjan Singh Sengar was on him.  He did not  

furnish any evidence in that behalf.  Even the records clearly show to the  

contrary.   

19. It  is in the aforementioned premise,  the contention in regard to the  

breach of audi alteram partem doctrine must be considered.

Principle of natural justice although is required to be complied with,  

it, as is well-known, has exceptions.  [See V.C., Banaras Hindu University  

and Others v. Shrikant (2006) 11 SCC 42]

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20. One of  the  exceptions  has  also  been laid  down in  S.L.  Kapoor v.  

Jagmohan and others [(1980) 4 SCC 379 : AIR 1981 SC 136] wherein it was  

held:

“In our view the principles of natural justice know  of  no exclusionary  rule  dependent  on whether  it  would have made any difference if natural justice  had been observed. The non-observance of natural  justice is itself prejudice to any man and proof of  prejudice  independently  of  proof  of  denial  of  natural justice is unnecessary. It ill comes from a  person who has denied justice that the person who  has been denied justice is  not prejudiced.  As we  said earlier where on the admitted or indisputable  facts only one conclusion is possible and under the  law only one penalty is permissible, the court may  not  issue  its  writ  to  compel  the  observance  of  natural  justice,  not because it  is not necessary to  observe natural  justice but because courts do not  issue futile writs.”

(Emphasis supplied)

21. Legality  of  grant  of  a  valid  appointment  was  dependant  upon  the  

proof that the respondent was the adopted son of Chittaranjan Singh Sengar.  

He not only failed to do so, the materials brought on record by the parties  

would clearly suggest otherwise.  His application for grant of appointment  

on compassionate ground was rejected by the Joint Director of Education.  

He did not question the legality or validity thereof.  He, it can safely be said,  

by  suppressing  the  said  fact  obtained  the  offer  of  appointment  from an  

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authority which was lower in rank than the Joint Director, viz., the Deputy  

Director.  When such a fact was brought to the notice of the Deputy Director  

that the offer of appointment had been obtained as a result of fraud practiced  

on the Department, he could, in our opinion, cancel the same.   

Respondent keeping in view the constitutional scheme has not only  

committed a fraud on the Department but also committed a fraud on the  

Constitution.  As commission of fraud by him has categorically been proved,  

in  our  opinion,  the  principles  of  natural  justice  were  not  required  to  be  

complied with.

22. Mr. Gupta has relied upon a large number of decisions of this Court,  

viz.,  Inderpreet  Singh  Kahlon and  Others v.  State  of  Punjab  and Others  

[(2006) 11 SCC 356], Mohd. Sartaj and Another v. State of U.P. and Others  

[(2006) 2 SCC 315],  Jaswant Singh and Others v. State of M.P. and Others  

(2002)  9  SCC 700 and  State  of  M.P.  and Others v.  Shyama Pardhi  and  

Others [(1996) 7 SCC 118] to contend that  audi alteram partem doctrine  

should have been complied with.  In these cases, requirement to comply with  

the principles of natural justice has been emphasized.  The legal principles  

carved out therein are unexceptional.  But, in this case, we are concerned  

with a case of fraud.  Fraud, as is well known, vitiates all solemn acts.  [See  

Ram Chandra Singh v. Savitri Devi and Others (2003) 8 SCC 319, Tanna &  

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Modi v. CIT, Mumbai XXV and Others (2007) 7 SCC 434 and Rani Aloka  

Dudhoria and others v. Goutam Dudhoria and others [JT 2009 (3) SC 616]

23. The High Court, therefore, must be held to have committed a serious  

error in passing the impugned judgment.

A succession certificate can be granted in favour of any person.  It  

may  be  granted  to  an  heir  or  a  nominee.   By  reason  of  grant  of  such  

certificate,  a  person  in  whose  favour  succession  certificate  is  granted  

becomes a trustee to distribute the amount payable to the deceased to his  

heirs and legal representatives.   He does not derive any right thereunder.  

The succession certificate  merely  enabled  him to  collect  the  dues  of  the  

deceased.  No status was conferred on him thereby.  It did not prove any  

relationship between the deceased and the applicant.  Even otherwise, the  

respondent and his father were entitled to the said dues being his heirs and  

legal representatives.

24. The very fact that the respondent had filed an application for grant of  

succession certificate along with his father, showing themselves to be the  

heirs and legal representatives of the deceased, is itself sufficient proof to  

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show that he did not claim any benefit in regard to the debts of the deceased  

as his adopted son or otherwise.

25. For the reasons aforementioned,  the  impugned judgment cannot  be  

sustained, which is set aside accordingly.  The appeal is allowed with costs.  

Counsel’s fee assessed at Rs. 10,000/-.

………………………….J. [S.B. Sinha]

..…………………………J.     [Dr. Mukundakam Sharma]

New Delhi; May 5, 2009  

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