Bindu Kumari, aged about 36 years, daughter of Late ishun Ram and Late Tara v. 1. Bharat Cocking Coal Limited
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 3073 of 2022 Bindu Kumari, aged about 36 years, daughter of Late ishun Ram and Late Tara Devi, resident of House No. 53, Block-D, Bhuli Nagar, P.O. Bhuli, P.S. Dhanbad, District Dhanbad .......Petitioner Versus 1. Bharat Cocking Coal Limited (BCCL) through its Chairman- cum-Managing Director, having its office at Koyala Bhawan, Koyala Nagar, P.O & P.S, & District Dhanbad 2. Director Personnel, BCCL, Dhanbad, P.O. & P.S & District Dhanbad 3. Project Officer, Sendra, Bansjora Colliery, Sijua Region-V, BCCL, Dhanbad, P.O. & P.S. Sijua, District-Dhanbad .......Respondents CORAM : HON’BLE MR. JUSTICE DEEPAK ROSHAN --- -- For the Petitioner : Mr. R.S.Mazumdar, Sr. Advocate Mr. Rohan Mazumdar, Advocate For the Respondents : Mr. Amit Kumar Das, Advocate Ms. Swati Shalini, Advocate -- 09/27.08.2024 Heard learned counsel for the parties. 2. The instant application has been preferred by the petitioner praying therein for quashing and setting aside the letter Ref. No. SB/SA/PD/2021/15/733 dated 25.06.2021, whereby the claim of the petitioner for compassionate appointment has been rejected. The petitioner has further prayed for a direction upon the respondent authorities to grant appointment to this petitioner on compassionate ground as per the NCWA as the mother of the petitioner namely Late Tara Devi, who was appointed under Respondent-BCCL as Fan Operator, Sendra Bansjora Colliery, Sijua Area had died in harness on 28.12.2019. 3. The case of the petitioner is that she duly applied for compassionate appointment being a divorced daughter of Late Tara Devi, Ex-employee of Respondent-BCCL.
Legal Reasoning
4. Learned counsel for the petitioner submits that as per the Company’s norms, the petitioner duly applied for her appointment on prescribed proforma with all required 1 documents on compassionate ground in place of her deceased mother. Learned counsel for the petitioner submits that though the petitioner had preferred several representations; however, after a lapse of several months; ultimately by the impugned order, her case was rejected. Nevertheless, as per the Rules and Provisions of Respondent-BCCL, the petitioner is entitled for compassionate appointment in place of her mother. In support of his contention, he relied upon the judgment passed in L.P.A No. 196 of 2017 and submits that in this case the learned Division Bench of this Court has remanded the matter to the department with a direction to give opportunity of hearing to the petitioner showing that she was dependent on the deceased husband. For brevity, the operative portions of the order dated 16th August, 2018 passed in L.P.A. No. 196 of 2017 [Central Coalfields Limited Vs. Hemanti Devi & Ors., are extracted hereinbelow: “In this background, in our opinion, the clause 9.3.3. has to be construed to include married dependant daughter also. We are conscious of the fact that before us, vires of the aforesaid clause of the NCWA has not been challenged and what we are dealing with in this appeal is a industry-wide agreement and not a direct statutory provision. But the employer in this appeal is a public sector unit coming within the ambit of “State” under Article 12 of the Constitution of India. Thus, since the agreement directly deals with matters of employment, the said provision has to meet the tests of Articles 14 and 16 of the Constitution of India. The manner in which the appellant wants the aforesaid provision to be interpreted would render it invalid as there can be no justification for not qualifying the son’s eligibility on the basis of marital status whereas a daughter has been placed under restriction on that count. Such discrimination is not based on any reasonable or rational criteria. We have to read down the expression “unmarried” qualifying the expression daughter as a non-essential component of the aforesaid clause and this interpretation would otherwise save the said provision. We accordingly sustain the decision which is appealed against. We, however, make it clear that the authority, taking decision on the basis of the direction of the learned First Court, should ascertain, upon giving the writ petitioner an opportunity of hearing, that she was dependent on her mother’s income at the time of her mother’s death and at present does not have sufficient means to run her household irrespective of the fact as to whether she was married or not. The appeal stands disposed of in the above 2 terms. The exercise shall be completed within a period of eight weeks from the date of communication of this order. As we disposed of the main appeal, the connected
Decision
application (I.A Nos.1437/18) shall stand disposed of.” Learned counsel for the petitioner lastly submits that the Division Bench of this Court in the case of married daughter has considered this aspect and the only difference with that case is with regard to the fact that this is a case of divorced daughter and that was a case of a married daughter. 5. Learned counsel for the respondents submits that the employment on compassionate ground can be claimed strictly in accordance with the Rules/Scheme. In the instant case, the parties were governed by National Coal Wages Agreement; specifically, Clause 9.3.0, which reads as under: “9.3.0 Provision of Employment to Dependants to one 9.3.1 Employment would be provided dependant of workers who are disabled permanently and also those who died while in service. The provision will be implemented as follows. 9.3.2 Employment to one dependant of the worker who dies while in service. In so far as female dependants their employment/payment of monetary compensation would be governed by para 9.5.0. concerned, are 9.3.3 the dependant for this purpose means the wife/husband as the case may be, unmarried daughter, son and legally adopted son. If no such direct dependant is available for employment, brother. widowed daughter/widowed daughter-in- law or son-in- law residing with the deceased and almost wholly dependant on the earnings of the deceased may be considered to be the dependant of the deceased. the dependants to be considered 9.3.4 for employment should be physically fit and suitable for employment and aged not more than 35 years provided that the age limit in case of employment of female spouse would be 45 years as given in Clause 9.5.0. In so far as male spouse is concerned, there would be no age limit regarding provision of employment." is not Apparently, a divorced daughter covered within the definition of "dependent" and in absence thereof, she cannot claim employment on compassionate ground. This apart, apparently, the mother of the petitioner as per her own showing died on 28.12.2019 and on the date of death of the Ex-employee, her marriage was admittedly surviving and she was dependent on her husband.” 3 Relying upon the aforesaid Clause, Mr. Das submits that a divorced daughter is not covered within the definition of "dependent" and in absence thereof, she cannot claim appointment on compassionate ground. Learned counsel further contended that the mother of the petitioner died on 28.12.2019 and on the date of death of ex-employee, her marriage was admittedly surviving and she was dependent on her husband. He further contended that just after the death of the deceased employee, the petitioner got divorce by way of mutual consent. This itself goes to show that only for the purpose of grabbing the job in the respondent department she has done all these things. Learned counsel further submits that the judgment cited by learned counsel for the petitioner being L.P.A. No. 196 of 2017 has been challenged before the Hon’ble Apex Court and notices has been issued; as such at this stage relying upon the said judgment will be miscarriage the justice. 6. Having heard learned counsel for the parties and after going through the documents available on record; admittedly the petitioner is a divorced daughter of her mother/deceased employee. It is further admitted that at the time of death of her mother, the petitioner was a married daughter fully dependent on her husband. It is also not in dispute that a divorced daughter is not covered within the definition of "dependent" and in absence thereof, she cannot claim appointment on compassionate ground. Learned counsel for the petitioner strongly relied upon the judgment passed in L.P.A no. 196 of 2017 and submits that the Division Bench of this Court has already 4 decided the issue; however, this Court cannot shut its eyes by ignoring the fact that the said judgment passed by Division Bench of this Court in L.P.A. No. 196 of 2017 has been assailed by the Respondent-Coal Company before Hon’ble Apex Court and the notices has been issued. It further transpires that in another appeal being L.P.A. No. 617 of 2017, the Division Bench of this Court has declared the judgment rendered by the learned Single Judge relying the judgment rendered in L.P.A no. 196 of 2017 to be per incuriam. For brevity, paragraph nos. 9 and 10 of the order dated 23.02.2023 passed in L.P.A No. 161 of 2002, which reads as under: 9. The latest judgment of the Hon’ble Supreme Court on this issue is Director of Treasuries in Karnataka and another Vs. V. Somyashree, [(2021) 12 SCC 20]. After discussing the facts of the case, the Hon’ble Supreme Court has laid down the principles guiding such appointment on compassionate ground. We find it appropriate to quote paragraphs 9 to 10.5 which read as follows:- it “9. While considering the submissions made on behalf of the rival parties a recent decision of this Court in N.C. Santhosh on the appointment on compassionate ground is required to be referred to. After considering catena of decision of this Court on is appointment on compassionate grounds observed and held that appointment to any public post in the service of the State has to be made on the basis of principles in accordance with Articles 14 and 16 of the Constitution of India and the com is an exception to the general rule. It is further observed that the dependants of the deceased government employee are made eligible by virtue of the policy on compassionate appointment and they must fulfil the norms laid down by the State’s policy. It is further observed and held that the norms prevailing on the date of the consideration of the application should be for consideration of claim of compassionate appointment. A dependant of a government employee, in the absence of any vested right accruing on the death of the government employee, can only demand consideration of his/her application. It is further observed that he/she is, however, entitled in accordance with the norms as applicable on the day of death of the government employee. consideration the basis seek to 10. The law laid down by this Court in N.C. Santhosh on grant of appointment on compassionate appointment can be summarised as under:- 10.1 That the compassionate appointment is an exception to the general rule. 5 10.2 That no aspirant has a right to compassionate appointment. 10.3 The appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India. 10.4 Appointment compassionate ground can be made only on fulfilling the norms laid down by the State’s policy and/or satisfaction of the eligibility criteria as per the policy. on 10.5 The norms prevailing on the date of consideration of the application should be the basis for consideration of claim for compassionate appointment.” 10) Thus, it is clear that compassionate appointment can be made or directed to be made only if it comes within the four corners of the rules or scheme framed thereunder. In this case, there is an agreement between the Management and the Union Representatives in pursuance thereof, the National Coal Wage Agreement has been entered upon and as per the judgment pronounced by the Hon’ble Supreme Court in the case of Mohan Mahto Vs. Central Coalfields Ltd & ors (supra), this agreement is binding on the parties in terms of Section 18(3) of the Industrial Disputes Act, 1947. In that view of the matter, this Court is of the opinion that the judgment passed by the learned Single Judge applying the judgment passed by the Division Bench in L.P.A. No.617 of 2017 is per incuriam. The learned Single Judge has not considered the settled principle of law as enunciated above and in that, we are inclined to allow the appeal and the appeal is accordingly allowed. The judgment dated 04.11.2020 passed in W.P. (S) No. 5577 of 2018 is hereby set aside. 11) No order as to costs. 12) Urgent copies as per Rules.” Emphasis Supplied 7. Even otherwise, the Hon’ble Apex Court in the case of Director of Treasuries in Karnataka and another Vs. V.Somyashree reported in (2021) 12 SCC, has held that the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim of compassionate appointment. In the said case, the Hon’ble Apex Court has dealt the entire issue in detail. For brevity paragraphs 9,10,15 and 16 are extracted hereinbelow: Court 9. While considering the submissions made on behalf of the rival parties a recent decision of this Santhosh [N.C. in N.C. Santhosh v. State of Karnataka, (2020) 7 SCC 617 : (2020) 2 SCC (L&S) 861] on the appointment on compassionate ground is required to be referred to. After considering this Court on catena of decisions of appointment on compassionate grounds it is 6 the policy on observed and held that appointment to any public post in the service of the State has to be made on the basis of principles in accordance with Articles 14 and 16 of the Constitution of India and the compassionate appointment is an exception to the general rule. It is further observed that the dependants of the deceased government employee are made eligible by virtue of compassionate appointment and they must fulfil the norms laid down by the State's policy. It is further observed and held that the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim of compassionate appointment. A dependant of a government employee, in the absence of any vested right accruing on the death of the government employee, can only demand consideration of his/her application. It is is, however, further observed entitled to seek consideration in accordance with the norms as applicable on the day of death of the government employee. that he/she law 10. The this Court laid down by in N.C.Santhosh on grant of appointment on compassionate ground can be summarised as under: 10.1. That appointment general rule. the is an exception compassionate the to 10.2. That no aspirant has a right to compassionate appointment. 10.3. The appointment to any public post in the service of the State has to be made on in accordance with Articles 14 and 16 of the Constitution of India. the basis of the principle compassionate 10.4. Appointment on ground can be made only on fulfilling the norms laid down by the State's policy and/or satisfaction of the eligibility criteria as per the policy. 10.5. The norms prevailing on the date of the application the consideration of should be the basis for consideration of claim for compassionate appointment. 15. As observed hereinabove and even as held by this Court in N.C. Santhosh , the norms 7 prevailing on the date of consideration of the application should be the basis of consideration of claim for compassionate appointment. The word “divorced daughter” has been added subsequently by Amendment, 2021. Therefore, at the relevant time when the deceased employee died and when the original writ petitioner- respondent herein made an application for the appointment on compassionate ground “divorced daughter” were not eligible for appointment on compassionate ground and the “divorced daughter” was not within the definition of “dependant”. 16. Apart from the above one additional aspect needs to be noticed, which the High Court has failed to consider. It is to be noted that the deceased employee died on 25-3-2012. The respondent herein — original writ petitioner at that time was a married daughter. Her marriage was subsisting on the date of the death of the deceased i.e. on 25-3-2012. Immediately on the death of the deceased employee, the respondent initiated the divorce proceedings under Section 13-B of the Hindu Marriage Act, 1955 on 12-9- 2012 for decree of divorce by mutual consent. By judgment dated 20-3-2013, the learned Principal Civil Judge, Mandya granted the decree of divorce by mutual consent. That immediately on the very next day i.e. on 21-3- 2013, the respondent herein on the basis of the decree of divorce by mutual consent applied for appointment on compassionate ground”. After going through the aforesaid ruling cited at bar by both the parties; especially the order passed by Hon’ble Supreme Court in the case of V.Somyashree (Supra) it transpires that certain guidelines has been laid down by the Hon’ble Apex Court which is to be adopted by the concerned authorities in providing the appointment on compassionate ground, in which one of the conditions precedent is that the day on which the cause of action arise i.e., death of any employee; the rule what was prevalent on that date will apply and any subsequent changes will not affect the claim of any party. 8. At the cost of repetition, just after the death of the petitioner’s mother; the petitioner filed a suit for divorce 8 by mutual consent and she got divorce, so admittedly she was not a divorced daughter at the time of her mother’s death and even otherwise, as on today also, the divorced daughter is not within the purview of getting compassionate appointment. 9. Having regard to the aforesaid discussions, the judgments relied upon by learned counsel for the petitioner is not applicable in this case. Accordingly, it is held that there is no infirmity in the order passed by the Respondent authorities and no relief can be granted to the petitioner, inasmuch as, appointment on compassionate ground can be made only on fulfilling the norms laid down by the State’s policy and/or satisfaction of the eligibility criteria as per the policy. Consequently, the instant application stands dismissed. Jk AFR (Deepak Roshan, J.) 9