Holding

The State was not justified in terminating the appellant’s compassionate appointment and must reinstate him with full back wages and consequential benefits.

Summary

The appellant, the younger brother of a constable killed in duty, was appointed as a constable on compassionate grounds to support the deceased's widow and children. He served satisfactorily for fifteen years, during which he continued to maintain the family. The State later terminated his services, contending that a brother does not fall within the definition of "dependent" under its compassionate appointment policy. The appellant challenged the termination, arguing that the State had knowingly appointed him and that no fraud or misrepresentation was involved. The Supreme Court held that the State was not justified in cancelling the appointment after such a long period, especially since the appointment was a conscious welfare decision and the appellant had fulfilled his obligations. Consequently, the Court ordered his reinstatement with full back wages, seniority, notional promotions, and awarded costs. The appeal was allowed.

Issues considered

Whether a brother of a deceased police constable qualifies as a "dependent" for a compassionate appointment under the State's policy.
Whether the State can terminate a compassionate appointment after fifteen years on the ground that the appointment was a mistake.
Whether the State may rely on its own mistake to cancel an appointment where no fraud or misrepresentation by the appointee occurred.
Entitlement of the appellant to reinstatement, back wages, seniority and other consequential benefits.

Subjects

compassionate appointmentdependenttermination of servicereinstatementback wagessenioritywelfare statepolice service

Judgment

[2016] 2 S.C.R. 341

MD. ZAMIL AHMED
V.

STATE OF lllHAR AND ORS.
(Civil Appeal No. 4815of2016)
MAYS,2016
B
(.I. CHELAMESWAR AND ABHAY MANUHAR SAPRE, .IJ.(
·"ervice LaH':
Appoi11/111e11/ 011 co1111wssi01wle iro1111d - Of the hrother of
the tlecea.\·ell e11111!o_vee -A.fier taking 111u!l!rlaki11.~_fi·o111 the llfJJJointee
tlwt he 11•011/d 111ai11tai11 the .fi11nily o( the deceased·- Afier 15 years
<~f llJJjJOi11tn1e11J, ,\)/ale ler111inatell the services 011 the grou11cl thal
c
aJJjJOi11t111e11t 011 co1111Jassio11ate gro111ul 11 as ille~{!,a/ ancl against the
1

policy as the brother of'the deceased does not fall within d~finilion
of 'dependant of lhe deceased' and hence not eligihle .fi1r
compassionate appoinl111en/ - Writ petitio11 challe11gi11i termination
order dismissed - The order co1(/irmed by Division Bench of High D
Court - On appeal, held: In view o( 1111disputedfi1c/s of the case
and more so in view of the fi1ct that there was no fiilse declaration
nor Sl!JJJJre·ssio11 <~f 011;1 11u1/erial .facl .for securing lljJJJOi11t111e11t,
autliorities co11cer11e<I H'ere not righl 'in ter111i11ati11g /he ,\·ervice,\/
cancelling the appoi11/111enl (lfier 15 years - '/lie Stale was not entitled
to take advantage of its 011·n mistake - State directed to reinstate E
the services of the appellant with all the Gonsequenlial benefits -
Cos/ of Rs.5000/- i11!11osed.
Allowing the appeal, the Court
HELD: 1. The fact that the appellant was younger brother
of the deceased >yas within the knowledge of the State. Similarly, F
.the State was aware that the brother docs 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. It was a conscious decision taken by the State for G
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. It was a right decision
H
341
342 SUPREME COURT REPORTS [2016] 2 S.C.R.

A taken by the State as a welfare state to help the family of the
deceased at the time of need of the family. The position would
have !Jeen different if the appellant had committed some kind of
fraud or manipulation or suppression of material fact for securing
the appointment. (Paras 20, 21 and 221 (345-E-G; 346-C]
B 2. There is no _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.
Keeping in view the peculiar undisputed facts of the case and
C having regard to the totality of the circumstances, the State was
not justified in terminating the appellant's services. [Paras 14
and 191 (344-F; 345-DJ
3. The respondent-State is directed to reinstate the
appellant in service with all consequential benefits such as
D payment of full back wages payable from the date of termination
till the date of reinstatement in service. The appellant is also
entitled to claim his seniority and notional promotions as per rules.
[Pard 251 (346-F]
4. Cost of the appeal is quantified at Rs.5000/- and the
E same be paid to the appellant by the respondent-State along with
the arrears of back wages. [Para 27] [346-G-H]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4815
of2016.
From the Judgment and Order dated 20.12.2013 of the High Court
F of Judicature at Patna in LPA No. 758 of2013.
Chandra Prakash. Adv., for the Appellant.
Rudreshwar Singh, Samir Ali Khan, Ad vs., for the Respondents.
The Judgment of the Court was delivered by
ABHAY MANOHAR SAPRE, J. I. Leave granted.
G
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
of2013 whereby the Division Bench of the High Court dismissed the
appeal filed by the appellant herein against the order dated 08.11.2010
of the learned Single Judge of the High Court in C. W.J .C. No. 5713 of
H 2006 in which it was held that the appellant being the brother of the
MD. ZAMIL AHMED v. STATE OF BIHAR 343
[ABHAY MANOHAR SAPRE, J.]

deceased was not entitled to claim compassionate appointment. His A
services \Vere, therefore, tenninated on this ground.
3. In order to appreciate the sho1t 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 B
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 c
the deceased constable if he.is given appointment. Accordingly, Memo
No. 1267/P-02 dated 29.02.1991 was issued by the Director General of
Police to appoint the appellant. Yide 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. D

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. E

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 of deceased)"
was not included in the definition of dependent of the deceased and F
hence was not eligible to claim compassionate appointment in the State
services.
7. On I 0.06.2005, 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 G
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.
H
344 SUPREME COURT REPORTS [2016] 2 S C.R.

A 8. The senior Superintendent of Police, Patna did not accept the
explanation offered by the appellant and terminated the services of the
appella11t on 23.06.2005 holding his appointment on compassionate ground
to b~ illegal and against the policy.
9. Aggrieved by the said order, the appellant filed an appeal before
B the Inspector General of Police on 01.08.2005.
I 0. Since the appeal was not decided by the Inspector General of
Pol ice, the appellant filed petition being Writ Petition No. 5713 of2006
before the High Court for quashing the order of termination passed by
the senior Superintendent of Police, Patna with a further prayer to
c reinstate h.im with all consequential benefits or in the alternative to direct
the authorities to decide the appeal filed by him. By order dated
08.11.20 I 0, 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 lo the appellant and hence this is a fit case for termination
of appellant's services.
D
11. Being aggrieved by the aforesaid order, the appellant filed an
appeal being L.P.A. No. 758 of2013. By order dated 20.12.2013, the
Division Bench upheld the orderofthe learned Single Judge and dismissed
the appeal.
E 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
F view that the State was not justified in terminating the appel !ant'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:
G 15. Firstly, the appellant and wife of the deceased at the time of
seeking compassionate appointment did 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.
1-1 16. Secondly, the appellant, who is the brother of the deceased,
MD. ZAMIL AHMED v. STATE or 13IllAR 345
[ABHAY MANOHAR SAPRE. J.]

undertook to maintain the family of the deceased in the event of his A
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 ll
and used to live with the deceased. I le 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 deceased in all respects for the last more c
than 15 years and he is continuing to do so.
19. In the light of aforementioned reasons, wliich 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 D
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 ofthc deceased
was within the knowledge of the State. Similarly, the State was aware E
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.·
21. In our considered view, the aforesaid facts would clearly r
show that it was a conscious decision taken by the State for giving an
appointment to the appellant for the benefit of the family member> 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
a
in the family. In our view, it was right decision taken by the State as a G
welfare state to help the family of the deceased at the time of need of
the family.
22. In these circumstances, we arc of the view that there was no
justification on the part of the State to wOkc up after the lapse of 15
years and terminate the services of the appellant on such ground. In any II
346 SUPREME COURT REPORTS [2016] 2 S.C.R.

A 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
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
B
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
beca'use 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
c their own mistake if they felt it to be so. The position would have been
different ifthe appellant had committed some kind offraud 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
D of welfare State in terminating the appellant's service on such ground
cannot be countenanced. We, therefore, disapprove the action taken by
the State.
24. ln the light of foregoing discussion, we allow the appeal, set
aside the impugned orders and in consequence allow the writ petition
E 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
F (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. ft
be fixed accordingly.
26. Let the appellant be reinstated in service within a month as an
outer limit and the arrears of back wages, as directed, be paid to the
G appellant with in 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.
Kalpana K. Tripathy Appeal allo\ved.
H