Allowed

Union of India v. Siva Lakshmi

Madras HC4 Aug 2020WA/595/2020

Case brief

AI extract

What is this about?

This appeal challenges a Single Judge order that rejected the termination of a compassionate appointee who was found HIV-positive and medically unfit for constable training. The Court held termination was unjust, directing appellants to consider an alternate lighter post as medically advised.

What did the court decide?

The appellants were directed to comply with the Single Judge's judgment and consider offering the respondent an alternate post suitable for lighter work within one month.

Union of India Vs Siva Lakshmi — Pension and Retirement Benefits | Madras HC (2020)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 04.08.2020

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CORAM :

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The Hon'ble Mr.A.P.SAHI, THE CHIEF JUSTICE

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AND

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The Hon'ble Mr.JUSTICE SENTHILKUMAR RAMAMOORTHY

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W.A No.595 of 2020 and CMP No.8306 of 2020

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1 UNION OF INDIA REP BY ITS SECRETARY TO THE GOVERNMENT

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DEPARTMENT OF HOME AFFAIRS NEW DELHI

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2 THE DIRECTOR GENERAL OF POLICE O/O DIRECTORATE GENERAL CRPF BLOCK NO. 1 CGO COMPLEX LODHI ROAD NEW DELHI-110003

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3 THE SPECIAL DIRECTOR GENERAL OF POLICE SOUTH ZONE CRPF CHANDRANKUTTA HYDERBAD-500005

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4 THE INSPECTOR GENERAL OF POLICE SOUTHERN SECTOR CRPF ROAD NO. 10C JUBILEE HILLS NEAR MLA/MPS COLONY GAYATHRI HILLS HYDERABAD-500033

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5 THE DEPUTY INSPECTOR GENERAL OF POLICE GROUP CENTRE CRPF AVADI CHENNAI-600065 ... Petitioners/Appellants

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SIVA LAKSHMI ... Respondent/Respondent

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Appeal filed under Clause 15 of Letters of Patent to set aside the order passed by this Court in WP No. 23735/2019 dt. 07/02/2020.

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Prayer in WP.23735/19: Writ Petition praying to issue a writ of certiorarified Mandamus calling for the records pertaining to the order dated 22.07.19 terminating the petitioner from service

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https://hcservices.ecourts.gov.in/hcservices/

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under the provisions contained in Rule-6 of CCS(Temporary Service) Rules, 1965 by the fifth respondent n proceedings No.D.II.01/2019-EC.II GC.AVD and quash the same and directing the respondents to reinstate the petitioner into service by giving alternative job like admistrative staff as advised by the Medical Superintendent of Government Palmonary Disease Hospita, Tambaram.

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For Appellant : Ms.Sunita Kumari

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JUDGMENT

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(Judgment of the Court was delivered by The Hon'ble Chief Justice)

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Heard learned counsel for Union of India.

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The challenge raised is to the impugned judgment dated 07.02.2020 of the learned Single Judge, whereby, a direction has been given to the appellants to consider the representation of the respondent/petitioner and pass an appropriate order taking into account the standing orders as well as the relevant provision of law offering the respondent/petitioner an appropriate job with the appellants.

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The contention raised is that the

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respondent/petitioner admittedly was offered compassionate appointment after the death of her husband and therefore, the stage of offering of such appointment being over, she was sent on training, when it was discovered that she was suffering from HIV/AIDS and was turned positive. Accordingly, she was found unfit to even complete the basic training of the post of constable against which she was offered appointment. Hence treating her service to be temporary under the CCS (Temporary Service) Rules, 1966, the termination order was passed on 22.07.2019.

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It is urged that the termination order is justified inasmuch as even as per the provisions of the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 such a course was permissible, as according to the provisions of Section 3 of the said Act itself provides that if a person has been found to be unfit the services could be terminated.

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The main contention of the learned counsel for the appellants is that the direction of the learned Single Judge by taking into account the Standing Orders dated 15.12.2008 is not

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https://hcservices.ecourts.gov.in/hcservices/

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capable of being complied with as the said Standing Orders do not contain any provision for offering such alternate appointment or changing the trade after the appointment has been made, that too, even when the candidate has been declared to be medically unfit to discharge the duties of the post against which the candidate was appointed.

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We have considered the submissions raised and we find that the learned Single Judge, after having considered the facts and also taking into account a judgment of the learned Single Judge of Allahabad High Court in W.A.No.10014 of 2018 decided on 16.05.2018, has proceeded to issue the direction for consideration of offering an alternate appointment to the respondent/petitioner.

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We find no reason to disagree with the said conclusion, but, we may point out that firstly, the nature of employment of the respondent/petitioner was on compassionate basis. It has time and again been held that a compassionate appointment is not an adhoc appointment to be terminated at will. It is an offer of a substantive appointment and the capacity of such appointee is substantive in nature. Reference may be had to the following decisions:-

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i) Ravi Karan singh vs. State of U.P. and Others, reported in 1999 SCC Online All 132

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ii) State of U.P. and Ors. vs. Abhishek Bharadwaj, reported in 2018 (158) FLR 629 (paragraph 5).

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Thus, a compassionate appointee under the relevant Rules after getting appointed, acquires the status at par with a direct recruit and which is substantive and, consequently the services can be dispensed with only in accordance with such Rules that are applicable. In the present case, CCS (Temporary Service) Rules, 1966, has been deployed to dispense with the services of the respondent/petitioner. The order dated 22.07.2019, terminating the services of the respondent/petitioner is extracted hereunder:-.

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OFFICE OF THE DIGP, GROUP CENTRE, CRPF, AVADI, CHENNAI-65

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No.D.II.01/2019-E.C.II.G.C.AVD Dated, the July 2019

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https://hcservices.ecourts.gov.in/hcservices/

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OFFICE ORDER

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Under the provisions contained in Rule-6 of CCS (Temporary Service) Rules, 1965, read with SDG, SZ, CRPF, Hyderabad Letter No.R.11.01/2019.SZ.DA.Int & Trg dated 21/03/2019 and IGP, SS, CRPF, Hyderabad Signal No.R.11.1/2019.SS.Adm.3 dated 28/06/2019, I hereby terminate the service of No.165030178 RT/GD (Mahila) Siva Lakshmi of this GC forthwith as she was found to be medically unfit to undergo Basic Training.

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Accordingly, she is struck off the strength of this GC with effect from the date of issue of this order. All Govt./Mess dues, if any, shall be recovered from the payable dues.

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(D.VINCENT THOMAS) Commandant.

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After getting appointment, the respondent/writ petitioner was diagnosed to be possessed of HIV/AIDS which fact is undisputed. The provisions of Section 3 of Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 can be reproduced to understand the arguments that has been advanced on behalf of the learned counsel for the appellants. Section 3(a)(i) is extracted herein under:-

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CHAPTER II

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PROHIBITION OF CERTAIN ACTS

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No person shall discriminate against the protected person on any ground including any of the following namely:-

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(a) .....

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(i) a copy of the written assessment of a qualified and independent health care provider competent to do so that such protected person poses a significant risk of transmission of HIV to other person in the workplace, or is unfit to perform the duties of the job; and..

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According to the impugned order of termination, the candidate was found to be medically unfit to undergo the basic training of the post of constable.

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We are of the opinion that if the respondent/petitioner is unfit to be deployed as a General

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https://hcservices.ecourts.gov.in/hcservices/

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Constable and is unable to undergo the basic training appertaining to that post, then this is not a case of altering the trade or changing the nature of employment. Rather this is a case to reconsider the claim of compassionate appointment on a fresh basis where, the candidate can be offered a post that may not require any such basic training so as to ultimately render her unfit for employment. The purpose of compassionate appointment is to provide succour to the family of the deceased employee and in this case, the aforesaid fact remained undisputed that the respondent/petitioner was found suitable enough to be offered compassionate appointment. Since the disclosure or discovery of the disease came later in point of time, the unusual and peculiar circumstances had arisen where, in our opinion, the learned Single Judge has rightly drawn a conclusion that the respondent/petitioner should be offered an alternate post or such employment that may be commensurate keeping in view the ailment possessed by her.

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To dispense with her services altogether would be adding misery to her life instead of providing succour. We may also put on record that the medical advice from the hospital concerned on 11.05.2019 reads as under:-

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“11.05.19

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Reviewed & TMT & PFT Results as CPRT couldn't be done.

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10.05.19

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TMT negative for Myocardial Ischaemia

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10.05.19 PPT : Shows restrictive Lung Function

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Imp : In view of smaller volume of left lungs in CT Chest, Fibrotic Lesions RML Lingular and Restrictive Lungs Function, it is opined that the candidate may not be fit for rigorous training schedule as a CRPF recruit. She may be considered for lighter work like Administrative Staff.

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Thus, medically also, she has been advised to be offered lighter work.

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In the above circumstances, it would be a travesty of justice to deny employment to a claimant of compassionate appointment, that too, even after the appointment having been offered to her and the fact that she now faces some other medical problems.

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https://hcservices.ecourts.gov.in/hcservices/

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Consequently, we do not find any error in the impugned judgment and in view of the additional reasons given herein above, we direct the appellants to comply with the directions of the learned Single Judge.

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It is expected that even though the time limit extended by the learned Single Judge vide impuged judgment dated 07.02.2020 has expired, we provide that the orders may be passed within one month from today.

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The writ appeal is disposed of with the above
direction. No costs. Consequently, connected miscellaneous
petition is closed.
Sd/-
Assistant Registrar
//True Copy//
Sub Assistant Registrar
sr
To
1 THE SECRETARY TO THE GOVERNMENT OF INDIA
DEPARTMENT OF HOME AFFAIRS NEW DELHI
2 THE DIRECTOR GENERAL OF POLICE
O/O DIRECTORATE GENERAL CRPF BLOCK NO.
1 CGO COMPLEX LODHI ROAD NEW DELHI-110003
3 THE SPECIAL DIRECTOR GENERAL OF POLICE
SOUTH ZONE CRPF CHANDRANKUTTA
HYDERBAD-500005
4 THE INSPECTOR GENERAL OF POLICE
SOUTHERN SECTOR CRPF ROAD NO. 10C
JUBILEE HILLS NEAR MLA/MPS COLONY GAYATHRI
HILLS HYDERABAD-500033
5 THE DEPUTY INSPECTOR GENERAL OF POLICE
GROUP CENTRE CRPF AVADI
CHENNAI-600065
W.A.No.595 of 2020
SSI(CO)
CB(01/10/2020)

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https://hcservices.ecourts.gov.in/hcservices/

Union of India v. Siva Lakshmi

Case brief

What is this about?

What did the court decide?

Union of India v. Siva Lakshmi

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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