Calcutta High Court (Appellete Side)
Tashima Begam & Anr vs Union Of India & Ors on 28 February, 2023
70.
28.2.2023
S.D.
W.P.A. 22668 of 2022
Tashima Begam & Anr.
Vs.
Union of India & Ors.
Mr. Ujjal Ray
Mr. Arpa Chakraborty
... For the Petitioners
Mr. Puspal Chakraborty
Mr. Saptarshi Mukherjee
Mr. Tirthankar nandi
...For the Respondent Nos. 3 to 7
Mr. Subhajit Das
...For the Union of India
The petitioner no. 1 is an employee of the Coal India
Limited (CIL). Pursuant to a Scheme for voluntary retirement
vide Coal India Special Family Retirement Scheme 2014
(Revised), the petitioner no. 1 applied for voluntary
retirement. The petitioner no. 1 applied for an appointment
for and on behalf of her son/petitioner no. 2 on March 4, 2015.
The petitioner no. 2 was directed to appear before the
Medical Board on October 24, 2016. Thereafter, letter of
rejection was issued on January 9, 2017 since the spelling of
the petitioner no. 2's name appeared in the two variants in
different places. Thereafter, the petitioner no. 2 was allowed
to furnish an indemnity bond clarifying the spelling of his
name by the respondent/ECL. The indemnity bond furnished
by the petitioner no. 2 was dated April 11, 2017. After one
year on April 7, 2018, the petitioner no. 2 was called for an
investigation and was directed to appear before the Medical
Board again along with Identification Certificate, documents
relating to his age etc. The medical examination of the
petitioner no. 2 was held on April 13, 2018. Thereafter, the
petitioners were not informed about the fate of the
application made on behalf of the petitioner no. 2.
Mr. Ray, learned counsel appearing on behalf of the
petitioners submits that the petitioners are governed by the
2014 Scheme since the said Scheme was applicable on the
date the petitioner no. 1 applied for voluntary retirement.
Furthermore, by an office order dated December 2, 2015,
several candidates were given appointments on the basis of
the said Scheme.
Mr. Chakraborty, learned counsel appearing on behalf
of the respondent/ECL submits that pursuant to
judgments/orders dated August 23, 2017 passed by the
Hon'ble High Court of Jharkhand at Ranchi in LPA 340 of
2016 and order dated August 27, 2018 passed by the same
High Court in W.P. (S) 1622 of 2017, the said 2014 Scheme has
been struck down as unconstitutional. Therefore, there was
no question of giving appointment to the petitioner no. 2
pursuant to the said Scheme.
Considering the rival submissions of the parties and the
materials placed on record, this Court finds that the petitioner
no. 1 applied for voluntary retirement pursuant to the 2014
Scheme. On the date of her aplication, there was a valid
Scheme under which the petitioner no. 1 could apply for
voluntary retirement and pray for consideration of
appointment of her son in her place and stead.
The petitioner no. 2/son was called for medical
examination, but due to the discrepancy in the spelling of his
name, he was asked to affirm an indemnity bond which he
submitted on or around April 11, 2017. The said indemnity
bond was been furnished before the order/judgment passed
in LPA 340 of 2016 on August 23, 2017.
All the necessary steps have been taken by the
petitioner no. 1 and 2 pursuant to the 2014 Scheme at the time
when the Scheme was still valid. The fact that the respondent
ECL called the petitioner no. 2 for medical examination in
April 2018 after 1 year of submission of the indemnity bond
cannot be attributed to any fault of the petitioners.
Furthermore, the respondent/ECL continued with the
processing of the petitioner no. 2's application in 2018 thereby
waiving their right to rely on the order dated August 23,
2017. The said action on the part of the ECL has raised the
legitimate expectation of the petitioners.
This Court relies on the judgment of the Apex Court in
the case of (State of Madhya Pradesh vs. Ashish Awasthi)
reported in (2022) 2 SCC 157, whereby it has been held that
the applicable Scheme for compassionate appointment is the
Scheme that was applicable on the date of death of the
deceased employee and not the Scheme on the date of
consideration of the application. In that case, there was only
a provision of compensation on the date of death of the
deceased employee. The impugned order passed by the High
Court directing the employer to consider the petitioner's
application based on a subsequent policy/circular was held to
be unsustainable. This Court is of the view that if the benefits
to the dependents cannot be extended by a subsequent
Scheme/Policy the same should also not be curtailed by a
subsequent policy or withdrawal of the same.
In the light of the discussions above, this Court directs
the application of the petitioners be considered strictly in
terms of the observations made hereinabove.
Furthermore, it is made clear that this order is being
passed in the peculiar facts and circumstances of the case
since the petitioner no. 2's application was already being
processed prior to the order dated August 2017 passed by
Jharkhand High Court. This Court also finds that there is no
submission made on behalf of ECL with regard to the
termination of services of the employees who were appointed
pursuant to 2014 Scheme. That being the case, the petitioner
no. 2 should not be discriminated against by the employer
when admittedly applications were made and processed
during the validity period of the Scheme and also after the
2017 judgment.
Let such reasoned order be passed within three months
from the date upon giving a personal hearing to the
petitioners or any representative authorized by the
petitioners. The reasoned order be communicated to the
petitioners within two weeks thereof.
With the directions aforesaid, W.P.A. 22668 of 2022 is
disposed of.
All parties shall act on the server copy of this order
duly downloaded from the website of this Court.
Urgent Photostat certified copy of this order, if applied
for, be given to the parties upon compliance of all the
formalities.
(Lapita Banerji, J.)
