2007 Supreme(SC) 132

2007(1) Supreme 900
SUPREME COURT OF INDIA
(From Jharkhand High Court)
S.B. Sinha and Markandey Katju, JJ.
National Institute of Technology & Ors.—Appellants
versus
Niraj Kumar Singh—Respondent
Civil Appeal No. 429 of 2007
(Arising out of SLP (C) No. 10221 of 2006)
Decided on 2-2-2007
Counsel for the Parties :
For the Appellants : Punit Dutt Tyagi, Ajay Choudhary and Nimish Gupta, Advocates.
For the Respondent : Rana Mukherjee and Ajit Kumar Sinha, Advocates.

Headnote:(i) SERVICE LAW—Appointment on compassionate ground—Such an appointment would be illegal in absence of scheme providing therefor—Scheme must be commensurate with constitutional scheme of equality—Appellant Institute had made a scheme where by appointment could have been offered only to a person who was the widow or a dependent child of deceased employee—Respondent, who was not real son or grandson of deceased employee but grandson of his cousin brother, was appointed—He was not entitled for appointment in terms of scheme—Appointment of respondent was nullity—When appellant institute, terminated his services after giving him show cause pursuant to or in furtherance of direction of High Court albeit in different proceedings, it must be held to have acted bona fide—No proceedings under Contempt of Courts Act should have been initiated.

       Held : 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. (Para 13)

       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.(Para 14)

       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. (Para 16)

       The Appellant – Institute has made a scheme. The said scheme must be read in conformity of the aforementioned decision of this Court.(Para 20)

       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.(Para 21)

       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.(Para 22)

       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. (Para 26)

       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. (Para 27)

       We, therefore, are of the opinion that the impugned judgment cannot be sustained which is set aside accordingly.(Para 28)

       (ii) RES JUDICATA—Principles of res-judicata shall not apply in a case where an order was passed by an authority which lacked inherent jurisdiction, same being nullity.