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CASE NO.: Appeal (civil)  429 of 2007

PETITIONER: National Institute of Technology & Ors.

RESPONDENT: Niraj Kumar Singh

DATE OF JUDGMENT: 02/02/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T  

[Arising out of SLP (C) No. 10221 of 2006]

S.B. SINHA,  J :

       Leave granted.   

       This appeal is directed against a judgment and order dated 8.05.2006  and 16.05.2006 passed by a learned Single Judge of the Jharkhand High  Court in a proceeding initiated suo motu under Section 12 of the Contempt  of Courts Act, 1971.

       One Shri B.P. Sinha was a Senior Storekeeper working with the  Appellant \026 Institute.  He died leaving behind his widow one Smt. Vidhya  Devi on 17.06.1986.  Allegedly, she made an application for an appointment  of the respondent herein on compassionate ground.  It was claimed that he  was the grandson of the said late Shri B.P. Sinha.  He was appointed on  daily wages on 14.02.1987 and his services were extended from time to  time.   

       After a gap of about 15 years, i.e., on 16.04.2001, the respondent  made an application for his appointment on compassionate ground on a  regular basis.  Affidavits were allegedly filed by the said Vidhya Devi in  support thereof; pursuant whereto and in furtherance whereof, the  respondent was given an appointment in the post of a Chowkidar, i.e., in  Class IV grade on temporary basis.  On 14.12.2001, the said Vidhya Devi  sought for appointment of her son Ashutosh Kumar while claiming so she  also requested for cancellation of the respondent’s appointment.  As her  request was not acceded to, she filed a writ petition in the High Court of  Jharkhand which by reason of a judgment and order dated 10.01.2002 was  dismissed holding:

"4. From the entire facts stated in the counter affidavit  which is supported by documents, it is prima facie, clear  that the petitioner has made false statements in paras 8  and 9 of the writ application.  This is very serious matter.   If the contention of the respondents made in the counter  affidavit is conclusively proved, then the petitioner shall  be liable to be prosecuted and punished in accordance  with law.

5. So far the claim of the petitioner for appointment of  her son, Asutosh Kumar on compassionate ground is  concerned, the same is misconceived.  Admittedly,  petitioner’s son was born in 1985 and the husband of the  petitioner died in 1986.  In other words, in 1986 when the  petitioner’s husband died, her son was a minor aged one  year three months.  After attaining majority i.e. after 18

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years, no appointment can be given to the petitioner’s son  on compassionate ground.  So far that relief is concerned,  the writ application is dismissed.

6.      Before parting with the order I must observe that  the respondent \026 RIT would be at liberty to proceed  against such persons who have made false representation  and filed affidavit."

       A Letters Patent Appeal was preferred thereagainst was also  dismissed by a Division Bench of the said High Court by an order dated  11.07.2002.

       In a separate writ petition, one Mithilesh Kumar sought for   appointment on compassionate ground inter alia on the premise that his  father, who was in service of the Institute and died in harness on 5.01.1988;  wherein  a learned Single Judge of the said High Court while dismissing the  same on the ground that a long time has elapsed from the date of death of his  father observed:

"If one or other person have been given appointment  after long delay say after about 12 years of the death in  recent past, within last one year or some person has been  illegally appointed giving wrong information, petitioner  may bring the same to the notice of the Principal, R.I.T.  Jamshedpur, who will take care.  In such case, if any  illegality is found in the matter of appointment, the  authority after notice to the concerned party, may pass an  appropriate order."

       The Principal of the Appellant \026 Institute received a letter from the  said Mithilesh Kumar wherein it was alleged that several persons had been  granted appointment after a long delay of about 10 years.  The name of the  respondent herein also figured therein.  It was requested:

"I, therefore, request you to kindly look into the matter  carefully and take necessary steps and pass appropriate  order in the matter as directed by the Honourable High  Court."

       A contempt petition was initiated by the said Mithilesh Kumar  alleging that the directions issued by the said learned Judge were not  complied with. In the proceeding initiated under the Contempt of Courts  Act, notices were issued against the appellant.  Cause was shown by it.  By  an order dated 7.03.2003, the High Court  directed:

"In the circumstances, I allow the opposite parties,  further six weeks time.  The competent authority may  issue show cause notice to the illegal appointees and ask  them to submit reply why their service being terminated  because of illegal appointment on compassionate  grounds.  Three weeks time may be given to such  employees.

On receipt of such reply, they will go through it and find  out whether any one of other has been appointed  illegally, against the scheme, after such delay or not.   One week’s time is allowed for such scrutiny.   Thereafter, the O.Ps will obtain necessary order from the  Board of Governors within one week and issue  appropriate order, in accordance with law.

In case, the court’s order is not complied within the said  period of six weeks, petitioner may bring the same to the  notice of the court for initiation of proceeding against the

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Director, NIT, Jamshedpur and the members of the Board  of Governors."

       A notice to show cause thereafter was issued by the appellant, in  terms whereof the respondent was asked to show cause as to why his  appointment shall not be cancelled.  Pursuant thereto cause was shown.  The  appointment of the respondent thereafter was cancelled by an order dated  1.03.2005 stating:

"We have gone through the contents of your replies and  after considering the same as there was no justified  reasons submitted by you, your said reply is found to be  unsatisfactory.  This is not a disciplinary/ departmental  proceeding and your request for hearing under  commission of enquiries act is not admissible.

In view of the above and in pursuance of the directive of  Hon’ble High Court dated 11.03.03 in contempt case  (Civil) No. 866 of 2002, we hereby terminate your  services from NIT Jamshedpur with immediate effect,  that is from the date of issue of this letter."

       The order came to be questioned before the High Court.  A contempt  proceeding was initiated suo motu by a learned Single Judge of the High  Court observing:

"10. Inspite of the aforesaid facts, respondents on the  basis of order passed in contempt case terminated the  services of the petitioner by order dated 01.03.2005  without initiating any disciplinary / departmental  proceeding although petitioner continued in service for  the last 15-16 years.  In fact, by terminating the services  of the petitioner, the respondents have flouted the  judgment passed by the learned Single Judge and  affirmed by the Division Bench of this Court.

11. Considering the entire facts narrated herein above, I  am of the view that the contention of the respondents in  the Counter affidavit filed in this case cannot be  appreciated.  Prima facie it appears that while passing the  order of termination, respondents have in fact ignored the  judgment and order passed by the learned Single Judge  and affirmed by the Division Bench of this Court.

12. However, before passing appropriate order, I direct  respondent no. 2 and 3, namely, Director, National  Institute of Technology, Jamshedpur and Registrar,  National Institute of Technology, Jamshedpur to appear  in person before this Court on 16.05.2006."

       It was directed that the contemnors shall appear in person and file  show cause, if they so desire.  A show cause was filed by them.  The  Registrar of the Appellant \026 Institute appeared in person.  An application  was filed by the Director of the Appellant \026 Institute inter alia stating that  the order of termination was passed by the then director of the institute, Dr.  D. Bhattacharya.  In view of the said assertions, the High Court observed:

"Mr. P.K. Prasad, learned counsel appearing for the  respondents, on instruction, submitted that Dr. D.  Bhattacharya is presently working in I.I.T. Kharagpur.   Hence the petitioner is directed to add Dr. Bhattacharya  as party respondent.

Considering the averments made in the I.A. petition this

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case is adjourned to 29.06.2006 to enable the present  Director to file show cause and to reconsider the order of  termination of the services of the petitioner and take a  decision in the matter.  The petitioner shall take steps for  service of notice on the present Director both by  registered post and courier for which steps must be taken  within a week."

       The question which arises for consideration is as to whether in a  situation of this nature, the High Court was justified in initiating proceedings  under the Contempt of Courts Act and that too suo motu.

       Admittedly, the appellant is a State within the meaning of Article 12  of the Constitution of India.  It, therefore, in the matter of appointment, is  under a constitutional obligation to give effect to the constitutional scheme  of equality as enshrined under Articles 14 and 16 of the Constitution of  India.            Appointment on compassionate ground would be illegal in absence of  any scheme providing therefor.  Such scheme must be commensurate with  the constitutional scheme of equality.                    This Court in Punjab Water Supply & Sewerage Board v. Ranjodh  Singh & Ors. [2006 (13) SCALE 426], has observed:

"\005The statutory bodies are bound to apply the rules of  recruitment laid down under statutory rules.  They being  ’States’ within the meaning of Article 12 of the  Constitution of India, are bound to implement the  constitutional scheme of equality.  Neither the statutory  bodies can refuse to fulfil such constitutional duty, nor  the State can issue any direction contrary to or  inconsistent with the constitutional principles adumbrated  under Articles 14 and 16 of the Constitution of India\005"

       All public appointments must be in consonance with  Article 16 of the  Constitution of India.  Exceptions carved out therefore are the cases where  appointments are to be given to the widow or the dependent children of the  employee who died in harness.  Such an exception is carved out with a view  to see that the family of the deceased employee who has died in harness does  not become a destitute.  No appointment, therefore, on compassionate  ground can be granted to a person other than those for whose benefit the  exception has been carved out.  Other family members of the deceased  employee would not derive any benefit thereunder.  

       This Court in Auditor General of India and Others v. G. Ananta  Rajeswara Rao [(1994) 1 SCC 192] held:

"5. A reading of these various clauses in the  Memorandum discloses that the appointment on  compassionate grounds would not only be to a son,  daughter or widow but also to a near relative which was  vague or undefined.  A person who dies in harness and  whose members of the family need immediate relief of  providing appointment to relieve economic distress from  the loss of the bread-winner of the family need  compassionate treatment.  But all possible eventualities  have been enumerated to become a rule to avoid regular  recruitment.  It would appear that these enumerated  eventualities would be breeding ground for misuse of  appointments on compassionate grounds.  Articles 16(3)  to 16(5) provided exceptions.  Further exception must be  on constitutionally valid and permissible grounds.  

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Therefore, the High Court is right in holding that the  appointment on grounds of descent clearly violates  Article 16(2) of the Constitution.  But, however, it is  made clear that if the appointments are confined to the  son/ daughter or widow of the deceased government  employee who died in harness and who needs immediate  appointment on grounds of immediate need of assistance  in the event of there being no other earning member in  the family to supplement the loss of income from the  bread-winner to relieve the economic distress of the  members of the family, it is unexceptionable.  But in  other cases it cannot be a rule to take advantage of the  Memorandum to appoint the persons to these posts on the  ground of compassion."

       In Yogender Pal Singh  v. Union of India [AIR 1987 SC 1015], this  Court held :         "While it may be permissible to appoint a person  who is the son of a police officer who dies in service or  who is incapacitated while rendering service in the Police  Department, a provision which confers a preferential  right to appointment on the children or wards or other  relatives of the police officers either in service or retired  merely because they happen to be the children or wards  or other relatives of such police officers would be  contrary to Article 16 of the Constitution."

       In Government of Andhra Pradesh, General Administration,  Hyderabad  and Others v. D. Gopaiah and Others [2006 (6) ALT 553 (FB)],  a Full Bench of the Andhra Pradesh High Court noticing the aforementioned  judgment, opined :

       "By reason of Articles 14 and 16 of the  Constitution of India, great hopes and aspirations were  generated in the minds of the people of India that  employment shall not be given on descent. Public  employment is considered to be public wealth. The  economy of the State has taken a tilt from agriculture to  public employment and the growth rate of employment  has increased to 34%. On a plain reading, Article 16 of  the Constitution of India carries no exception."                          It was further stated :         "The matter relating to grant of compassionate  appointment only in limited situation took its root in  public employment. The State and the Central  Governments issued several circulars, took various policy  decisions and also changed their policy decisions from  time to time resulting in spurt in litigation. A close study  of the circulars issued by the State as also the pattern of  litigations generating therefrom leads us to take judicial  notice about -gross abuse of the schemes and inherent  lack of safeguards.         Before further adverting to the aforementioned  question, we may notice that the petitioners themselves  stated that in the State of Andhra Pradesh, no  appointment had been made as a ban had been in vogue  since 1987. The appointments are being made only on  contract basis by way of schemes, which stricto sensu  violate the recruitment rules and Articles 14 and 16 of the  Constitution of India. A lot of employment is generated  through the populist scheme of regularisation of services.  There are schemes for employment for displaced persons,  schemes for taking over the services of the taken over  projects, landless persons and so on and so forth. A

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person can obtain appointment in terms of  aforementioned schemes or on contract basis, on political  pressures, on demand of trade unions, as also on the  pressures of the Nongovernmental organisations. The  long and short of the matter is that unless there is  somebody to push his case, an employment cannot  ordinarily be obtained by a citizen in terms of Articles 14  and 16 of the Constitution of India. The majority of the  population faces the paradox of articulated programmes  for obtaining employment.         The schemes for grant of compassionate  appointment on medical invalidation, as noticed  hereinbefore, had been made wider and wider. The State  has for one reason or the other compromised with the  basic principles underlying grant of public employment  and has deviated from the constitutional norms;  sometimes it widened the scope and ambit of grant of  appointment on compassionate ground to such an extent  that it had to backtrack its steps. The State’s policy  decision in this regard had never been on firm root. They  took different steps at different times depending on the  whims and caprice of the concerned officer or acted on  pressure of the Employees’ Unions.         The law interpreting Articles 14 and 16 of the  Constitution of India in this regard has also undergone  ups and downs."

       he Appellant \026 Institute has made a scheme.  The said scheme must be  read in  conformity of  the aforementioned decision of this Court.

       The appointment on compassionate ground, thus, could have been  offered only to a person who was the widow of the deceased or a dependent  child.  Admittedly, the son of the deceased Ashutosh Kumar was only one  year old at the time of his father’s death.  He could not, thus, have been  given any appointment on compassionate ground.  It may be true that Smt.  Vidhya Devi filed an application for grant of appointment on compassionate  ground in favour of the respondent.  But, it now stands admitted that he was  not the natural grandson of late Shri B.P. Sinha but was a grandson of his  cousin brother.  Therefore, he was not entitled for appointment in terms of  the scheme of the Institute.  The Institute, therefore, committed an illegality  in granting him such an appointment.  Moreover the purported the  appointment on compassionate ground had been given in 2001, i.e., after  more than 15 years from the date of death of the said Shri B.P. Sinha.

       If the appointment of the respondent was wholly illegal and without  jurisdiction and such an appointment had been obtained by practising fraud  upon the appellant, the same was a nullity. We are, however, not oblivious  of the fact that the same attained finality in view of the fact that the writ  petition of the said Vidhya Devi was dismissed.  Despite the same, the  principles of res judicata shall not apply in a case of this nature.  It is well- known that where an order is passed by an authority which lacks inherent  jurisdiction, the principles of res judicata would not apply, the same being  nullity. [See Chief Justice of A.P. v. L.V.A. Dixitulu, 1979 (2) SCC 34 and  Union of India v. Pramod Gupta (D) By LRs. and Ors. (2005) 12 SCC 1]   

       Moreover, any appointment in violation of the constitutional scheme  would also be rendered a nullity.  [See Secretary, State of Karnataka & Ors.  v. Umadevi & Ors. (2006) 4 SCC 1, Indian Drugs & Pharmaceuticals Ltd. v.  Workman, Indian Drugs & Pharmaceuticals Ltd. 2006 (12) SCALE 1,  Municipal Corporation, Jabalpur v. Om Prakash Dubey [2006 (13) SCALE  266].National Fertilizers Ltd. and Ors. v. Somvir Singh (2006) 6 SCALE  101 and Ranjodh Singh (supra)]

       The question, therefore, should have been considered by the learned  Single Judge having regard to the aforementioned legal position.  

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       We may, furthermore, notice that in the writ petition filed by  Mithilesh Kumar, this Court made certain observations.  A contempt petition  was also filed by him wherein certain directions were issued.

       If pursuant to or in furtherance of such a direction of the High Court,  albeit in a different proceeding, the Appellant \026 Institute had initiated a  proceeding against the respondent and after giving him an opportunity of  showing cause terminated his services, it must be held to have acted bona  fide.  No proceedings under the Contempt of Courts Act should have,  therefore, been initiated against the appellants.         Furthermore, the writ petition of the respondent was yet to be heard  on merit.  Before the writ petition was itself disposed of, in our opinion, the  learned Judge should not have initiated a contempt proceeding and  particularly when the same had been done (assuming that the same was  wrong) to give effect to another order passed by the High Court.

       We, therefore, are of the opinion that the impugned judgment cannot  be sustained which is set aside accordingly.  The appeal is allowed.  No  costs.