Jairam Bhar v. Central Coalfields Limited
Case at a glance
- Bench
- GAUTAM KUMAR CHOUDHARY
Outcome
Set aside
Under the circumstance, the impugned orders are set aside
Provisions considered
- Constitution of India art. 226
Key paragraphs
- Para 99. Relevant clause of NCWA mandates the minimum age for employment on compassionate ground to be 35 years. Age of the petitioner was assessed to be 35- 40 years by the medical board. Preponderance of judicial opinion in such cases is that if the age…
Judgment
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY … …. Respondents ----- ----- For the Petitioner For the State Oral Order 07 / Dated : 05.12.2023 : Mr. Kumar Harsh, Advocate : M/s Amit Kr. Das & R.K. Gupta, Advocates -----
The instant writ petition has been filed under Article 226 of the Constitution of India for setting aside the orders dated 29.01.2019, 17.01.2019 and 08.01.2019, whereby and whereunder, the claim of the petitioner for employment on compassionate ground under the scheme of NCWA has been rejected on the ground that the petitioner is above 35 years of age on the date of application.
Father of the petitioner namely, late Fulchand Bhar, was employed in Respondent-company in the capacity of Category-1 in Sayal ‘D’ Project, Barka Sayal Area who died in harness on 11.02.2017. After his death, the mother of the petitioner/wife of the deceased submitted a representation dated 10.05.2017 for compassionate appointment of this petitioner.
In view of the discrepancies in the date of birth of the petitioner, it was referred to the Company Medical Board who examined him on 21.11.2018 and assessed his age to be 35 to 40 years. Taking the midpoint of his age to be more than 35 years, petition for employment has been rejected vide impugned orders dated
29.01.2019, 17.01.2019 and 08.01.2019.
The impugned order has been assailed on the ground that as per Clause 9.3.4. of National Coal Wage Agreement, the age of the dependent to be considered for employment should not be more than 35 years, but it does not exclude the candidate whose age is of 35 years.
The Division Bench of this Court in LPA No. 343 of 2017 vide order dated
13.03.2018 on similar facts situation observed as under: 2
We have perused the documents annexed with this Letters Patent Appeal and also looking to the facts and circumstances of the case it appears that as per medical opinion given on 23rd December, 2015 the age assessed of respondent no.1 is between 35 years to 40 years. In fact, the application was preferred by respondent no.1 on 01.01.2015 and almost whole year has taken by the medical board and hence, instead range of 35 years to 40 years.
On similar facts, LPA No. 687 of 2019 was decided in favour of the Petitioner, where the age of the petitioner was assessed to be 35 to 40 years .
Learned counsel for the respondents-Company does not dispute the factual assertion with regard to age assessment of the petitioner to be 35 to 40 years. Ratio laid down in LPA Nos. 429/2017 and 168 of 2021, is however relied that in case of the age assessment the median age is to be taken into consideration.
I find much force in reply on behalf of the petitioner that the fact of LPA No. 168 of 2021 is distinguishable from the present case, as the case relied upon was with regard to compassionate appointment under Clause 9.3.0 which is for employees who have been declared medically unfit. As far as LPA No. 429 of 2017 is concerned, it will be apparent in para 12 that apart from the age assessment by the Medical Board huge discrepancies were also found in the record with respect to his age which weighed with the Court in disallowing the petition for compassionate appointment.
After having considered the submissions advanced on behalf of both sides, for better appreciation, it will be desirable to this Court to quote 9.3.0, 9.3.4 and
9.4.0 (iv) which are as under: “9.3.0 Provision of Employment to Dependants 9.3.4. The dependants to be considered 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. 9.4.0 (iv) – The dependants to be considered 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.
Operative part
Relevant clause of NCWA mandates the minimum age for employment on compassionate ground to be 35 years. Age of the petitioner was assessed to be 35- 40 years by the medical board. Preponderance of judicial opinion in such cases is that if the age of the dependent is medically assessed, the lower age needs to be considered. This is for the reason that there is also a possibility of error of two years (plus) /(minus) and it needs to be considered beneficially in favour of the 3 dependent of the deceased employee. In the present case as discussed above, the minimum age assessed is 35 years and it cannot be regarded as more than 35 years, which is the eligible age for employment under NCWA. Under the circumstance, the impugned orders are set aside. Respondents are directed to take appropriate decision on grant of compassionate appointment to the petitioner and issue appropriate order within eight weeks from the date of receipt/production of a copy of this order. Writ Petition is accordingly allowed. (Gautam Kumar Choudhary, J.) AKT/Satendra Uploaded
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: Under the circumstance, the impugned orders are set aside
Which statutory provisions did this judgment involve?
Constitution of India — art. 226.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.