Point of Law : Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgression of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor.

JUDGMENT :

Suneet Kumar, J.

1. Heard learned counsels for the parties, perused the record with the assistance of the learned counsels for the parties.

2. The petitioner was working as Deputy Ranger in the Forest Department with fourth respondent, Divisional Director, Social Forestry, Forest Division, Lalitpur. By the instant petition, petitioner is assailing the order dated 31 May 2021, passed by third respondent, Divisional Director, Bundelkhand Forest Circle, Jhansi, whereby, the services of the petitioner was terminated for the reason that petitioner had obtained compassionate appointment by suppressing material fact that his mother was an employee receiving salary from the Government.

3. The facts, briefly stated, is that petitioner is the son of an ex-employee, Sri Santosh Kumar Srivastava, who died in harness while working on the post of Forest Guard on 13 October 2002. Petitioner applied for compassionate appointment under U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 [Rules, 1974]. The application form was accompanied with an affidavit of his mother stating that she has no objection to the appointment of the petitioner on compassionate basis. Accordingly, petitioner came to be appointed on 31 December 2002, by the Conservator of Forest, Jhansi. Since then, petitioner is performing his duties. It is urged that petitioner was subsequently confirmed, thereafter, on 17 January 2019, petitioner was promoted on the post of Deputy Ranger. On a complaint received through the office of the District Magistrate alleging that petitioner had obtained the appointment suppressing the fact that his mother was working as an Assistant Teacher in a basic school and receiving salary from Government, consequently, a show cause notice dated 20 January 2021, came to be issued to the petitioner. Petitioner responded to the notice by submitting reply on 24 January 2021, and a supplementary reply on 16 March 2021. The third respondent on considering the reply passed the impugned order terminating the services of the petitioner on the ground that petitioner was not eligible, nor entitled to compassionate appointment as he nor his mother had disclosed that they both were not entitled to compassionate appointment under Rules, 1974.

4. Learned counsel for the petitioner submits that petitioner could not have been terminated after putting in 19 years of service with the department; petitioner had applied on prescribed proforma which did not contain a column requiring disclosure as to whether the spouse of the deceased employee is gainfully employed with the Government; petitioner being a confirmed employee could not have been imposed punishment of termination without following the procedure mandated under the U.P. Government Servant (Discipline and Appeal) Rules, 1999 [Rules, 1999]; no enquiry was set up against the officers who were responsible for appointing the petitioner.

5. Per contra, learned Standing Counsel, appearing for respondents, submits that petitioner was not eligible for appointment under the Rules, 1974; there is a specific bar prohibiting the appointment of such person whose either parent is gainfully employed with the Government; the material fact of being employed with Government was suppressed by the petitioner, as well as, his mother, which was not disclosed in the notarized affidavit filed by them. It is further urged that since mother of the petitioner was gainfully employed, the condition for appointment under Rules, 1974, as not fulfilled i.e. the family was not in financial distress; there was no occasion for initiating disciplinary proceedings against the petitioner under the Rules, 1999, as petitioner is not being terminated for misconduct committed during the course of employment, but on the ground that the very foundation/basis for compassionate appointment rests on misrepresentation/suppression of material fact i.e. employment of his mother; the factum of the spouse/mother being gainfull