Institute of Technology & Ors. Vs. Niraj Kumar Singh  Insc 94 (2 February
S.B. Sinha & Markandey Katju
[Arising out of SLP (C) No. 10221 of 2006] S.B. SINHA, J :
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,
One Shri B.P. Sinha was a Senior Storekeeper working with the Appellant 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:
"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
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.
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 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.
Before parting with the order I must observe that the respondent 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
"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 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
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
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 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:
"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.
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.
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 Institute appeared in person. An application was filed by the
Director of the Appellant Institute inter alia stating that the order of termination
was passed by the then director of the institute, Dr.
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
Considering the averments made in the I.A. petition this 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:
"The 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"
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
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.
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
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 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 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
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.
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 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.