Shri Ved Prakash vs Chairman/Administrator, New ...
2007 Latest Caselaw 37 Del

JUDGMENT

Kailash Gambhir, J.

1. Rule.

2. With the consent of counsel appearing for the parties the matter is set for hearing.

3. The petitioner has filed the present petition feeling aggrieved that although offer of appointment was given to him vide order dated 10.10.2002 but still the respondent did not permit the petitioner to join his duties. The case of the petitioner is that father of the petitioner Shri Jagdish was a regular employee of the respondent since 1972. He died on 15.8.2001 during the course of his employment. At the time of death of the father of the petitioner the deceased was survived by his widow Smt. Ram Piari, petitioner Sh. Ved Prakash besides four brothers and a sister. After the demise of his father, the petitioner made a representation to the respondent for grant of appointment on compassionate grounds and his application for appointment was duly considered and verified by the respondent. The petitioner was called for interview which he successfully cleared and pursuant thereto he was also issued appointment letter dated 10.10.2002. Following the terms and conditions of the appointment the petitioner was sent for medical examination and he was declared fit.

4. Counsel for the petitioner contends that even after qualifying the interview as well as medical test, the petitioner was not permitted to join the service thereby compelling the petitioner to file the present petition.

5. Counsel for the respondent contends that the petitioner was not permitted to join the service as on scrutiny and verification it was found that petitioner as well as his mother had played fraud in securing the employment with the respondent on compassionate grounds. Ms. Jyoti Singh says that the affidavit filed by the mother discloses that she had no source of income and therefore there was a need to give employment to the son of the deceased on compassionate grounds. She further contends that the fact of the employment of the mother with the respondent as Beldar was deliberately suppressed so as to secure employment for the petitioner. Ms. Singh has drawn my attention to para 3 of the affidavit which is at page 27 of the paper book, filed by the mother of the petitioner, inter alia stating, that she is the legally wedded wife of the deceased/father of the petitioner and she has no source of income. The affidavit has the impression of thumb mark of the mother of the petitioner, although under the thumb mark name of the mother has been written in vernacular language. If the said affidavit alone is taken into consideration then at the first blush the impression is gained that mother of the petitioner being an illiterate might have put her thumb impression without even knowing the contents of the affidavit but after the perusal of the Form which is at page 28-29 of the paper book duly filled in by the petitioner himself, fraud and suppression on the part of the petitioner as well as his mother gets fully exposed. In para 4 of the said Form against the name of the mother of the petitioner the column was filled with (Grahini) which means 'house wife'. The said Form was duly signed by the petitioner and the same was also verified by two employees of the respondent. Counsel for the respondent has pointed out that in para 5 of the letter dated 10.10.2002 issued by the respondent it has been clearly stated that in case the information received is found to be incorrect or any material concealment is revealed then the respondent can terminate the service and reserves right to initiate appropriate proceedings. Para 5 of the letter dated 10.10.2002 is reproduced below:

In case the information received is found to be incorrect or any material concealment is revealed then the Council can terminate the service and reserves right to initiate appropriate proceedings.

6. It is quite shocking that to secure employment on compassionate ground one has to play such kind of fraud by not coming forward with the correct and exact disclosures. Many employees die during the course of their employment and their kith and kin await employment on compassionate ground. Every case is independently examined by the authorities after taking into consideration whether actually the family left by the deceased employee is in harness and is not supported by any sufficient income for their survival.

7. It has been repeatedly held in various legal pronouncements that compassionate employment cannot be claimed as a matter of course not being a vested right. As a rule, appointment in the public services should be made strictly on the basis of open invitation of applications and merit.

8. The Supreme Court in Umesh Kumar Nagpal v. State of Haryana and Ors. has observed as under:

...It appears that there has been a good deal of obfuscation on the issue. As a rule, appointment in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interest of justice and to meet certain contingencies. One such exception is in favor of the dependants of any employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The, whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased and it is only if it is satisfied that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family.... The favorable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz. Relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased, there are millions of other families which are equally, if not more, destitute. The exception to the rule made in favor of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs of the family engendered by the erstwhile employment which are suddenly upturned.... Unmindful of this legal position, some Governments and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased.... The decision does not justify compassionate employment either as a matter of course.... The only ground which can justify compassionate employment is the penurious condition of the deceased's family.... The consideration for such employment is not a vested right.... The object being to enable the family to get over the financial crisis.

9. Admittedly, the petitioner and his mother had suppressed the fact of employment with a sole objective to secure employment for the petitioner. There is, thus, no illegality on the part of the respondent in not permitting the petitioner to join his duties on account of the said vital suppression made by the petitioner and his mother. Even otherwise it is a well known and cardinal principle of law that fraud vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury enures there from although the motive from which the representations proceeded may not have been bad. An act of fraud on Court is always viewed seriously. By filing a false affidavit wherein the mother of the petitioner has stated that she had no independent source of income and declaration of the petitioner that his mother is a 'house wife' are acts of fraud committed by the petitioner and his mother. The petitioner and his mother thus practiced fraud with a view to secure employment on compassionate ground and therefore, no relief can be given to such a petitioner who is a wrong doer and has no scrupulous. The writ jurisdiction is an equitable jurisdiction and no discretion can be exercised in favor of such a petitioner. Thus petition is totally devoid of merit.

10. Dismissed. Parties to bear their own costs.

11. Rule is discharged.