Sarita Kumari vs M/S. Central Coalfields Limited
2021 Latest Caselaw 3381 Jhar

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             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                 W.P. (S) No. 1772 of 2017
       Sarita Kumari                                               ...     Petitioner
                               Vs.
      1.   M/s. Central Coalfields Limited, having its office at Darbhanga House,
           G.P.O, Kotwali, Ranchi through its Chairman-cum-Managing Director
      2.   The Director (Personnel), M/s. Central Coalfields Limited, having its
           office at Darbhanga House, GPO, Kotwali, Ranchi
      3.   General Manager (P & IR), M/s. Central Coalfields Limited, having its
           office at Darbhanga House, GPO, Kotwali, Ranchi
      4.   General Manager, Kuju Area, M/s. Central Coalfields Limited, Kuju,
           Ramgarh
      5.   Project Officer, Pundi Project, Kuju Area of M/s. Central Coalfields
           Limited, Kuju, Ramgarh
      6.   Senior Officer (Personal and Administration), Pundi Project, Kuju area
           of M/s. Central Coalfields Limited, Kuju, Ramgarh
                                                              ...     Respondents
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                   CORAM:       THE HON'BLE MR. JUSTICE DR. S.N.PATHAK
                               (Through: Video Conferencing)
      For the Petitioner                : Mr. Gautam Kumar Singh, Advocate
      For the Respondents               : Mrs. Swati Shalini, Advocate
                                        -----------

09/ 13.09.2021     The Petitioner has approached this Court with a prayer for quashing

the letter dated 25.02.2016 issued by the respondent No.6, whereby and whereunder, the appointment of the petitioner on compassionate ground has been denied on the ground that petitioner is a married daughter. Further, prayer has been made for a direction upon the respondents to consider the appointment of the petitioner on compassionate ground upon the death of her father, who died in harness.

The case of the petitioner lies in a narrow compass. The father of the petitioner, namely late Munshi Mahto was an employee of the respondents, he was posted as Category-I Mazdoor at Pundi Project under Kuju Area of the respondents. He died in harness on 12.12.2009 and as such, vide office order dated 10.03.2010 issued by the respondent No.5, his name was struck off from the roll of service w.e.f. 12.12.2009. It is specific case of the petitioner that though she is married with Mr. Ajay Kumar, but she was living with her father as a dependent upon him as the deceased employee had no son and in this regard, a dependency certificate was issued from the Office of the Block Development Officer, Mandu (Ramgarh). After the death of deceased employee, the mother of the petitioner initially made an application before the respondents for appointment of the husband of the petitioner in the year, 2010 itself, but the same was rejected by the respondents vide communication dated

03.11.2015. Pursuant to the same, the mother of the petitioner made an application before the respondents for appointment of the petitioner on compassionate ground, but the same has been rejected on the ground that the petitioner is a married daughter and the same has been communicated to the mother of the petitioner vide impugned order dated 25.02.2016. Aggrieved by the same, the mother of the petitioner made representation before the respondents, but no heed was paid. Hence, this writ petition has been preferred.

Mr. Gautam Kumar Singh, learned counsel for the petitioner submits that the petitioner is entitled for compassionate appointment and ground for rejection of compassionate appointment on being a married daughter, is not tenable in the eyes of law. He further submits that it is case of gender discrimination, which cannot be permitted to be perpetuated by the respondents. Learned counsel places heavy reliance on the judgment of this Court in the case of Hemanti Devi Vs. Central Coalfields Limited & Ors. in W.P.(S) No.5429 of 2014, affirmed by the Hon'ble Division Bench of this Court in LPA No.196/2017 vide its order dated 16.08.2018. Learned counsel further prays that impugned order may kindly be quashed and set aside and a direction be given upon the respondents to appoint the petitioner on compassionate ground.

Per contra, counter-affidavit has been filed.

Mrs. Swati Shalini, learned counsel for the respondents vehemently opposes the contention of the learned counsel for the petitioner and submits that the application for compassionate appointment of the petitioner was filed for the first time in the year 2015, there is inordinate delay and since, the case of the petitioner was not fit for consideration for appointment on compassionate ground and as such, her case was rightly rejected. She places heavy reliance on the reported judgment of this Court in the case of CCL Vs. Parden Oraon, reported in 2021 SCC Online SC 299. Justifying the impugned order, learned counsel submits that petitioner was not fully dependent on earning of her deceased father, who was an employee under respondent and as such, rightly the case of the petitioner was rejected.

Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration. From the impugned order, it appears that the case of the petitioner has been rejected on the ground that the petitioner is a married daughter and was not fully dependent on her deceased father and as per the Clause 9.3.0 of NCWA, she is not entitled for compassionate appointment. The issue of gender discrimination in compassionate appointment fell for consideration before Hon'ble High Court of

Chhattisgarh in W.P.(S) No.4994 of 2015 (Smt. Asha Pandey Vs. Coal India Ltd. & Ors.), wherein vide its order dated 15.03.2016, the said clause has been quashed to the extent the same excludes from the benefits the claim of a married daughter. It has been held in said Judgment that:

"(29). As a fallout and consequence of aforesaid discussion, the writ petition is allowed and consequently clause 9.3.3 of NCWA-VI, which has been made applicable to clause 9.4.0(I) of NCWA-IX, regarding dependent employment only to the married daughter is held to be violative and discriminatory and the said clause to the extent of impliedly excluding married daughter from consideration for dependent employment is hereby declared void and inoperative. Resultantly, impugned order dated 15.10.2015 Annexure P-1 rejecting the petitioner's claim for dependent employment on the ground of her marriage is hereby quashed being unsustainable in law and it is directed that Clause 9.3.3 of NCWA-VI read with clause 9.4.0 of NCWA-IX be read in the manner to include the married daughter also as one of the eligible subject to fulfilment of other conditions. As a consequence, the respondents are directed to consider the claim of the petitioner for dependent employment afresh in accordance with law keeping in view that her father died way back on 08.02.2014 and her application for dependent employment was rejected on 15.10.2015, preferably within a period of 45 days from the date of receipt of certified copy of this order. No order as to costs."

In a Full Bench decision of the High Court of Calcutta delivered on 13th September, 2017, in the case of the State of West Bengal Vs Purnima Das and Ors (F.M.A. 1277 of 2016), a similar provision contained in West Bengal Scheme For Compassionate Appointment 2013 was examined. The Full Bench opined that exclusion of a daughter solely on the basis of her marital status would not be reasonable.

This Court in LPA No. 196 of 2017 in case of Central Coalfields Limited Vs. Hemanti Devi & Ors. was constrained to hold that clause 9.3.3 has to be construed to include married dependent daughter also. The issue is dealt with in detailed and it was observed that such discrimination is not based on any reasonable or rational criteria and it was accordingly, directed that 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 argument of the learned counsel for the respondents regarding delay in filing of application of the petitioner, is not acceptable to this Court as the same was not a ground for rejection in the impugned order. Law is well settled that impugned orders cannot be improved by reasons stated in the counter-affidavit. The said proposition of law has been held in case of Commissioner of Police, Bombay

Vs. Gordhandas Bhanji, AIR 1952 SC 16, which has been reiterated in case of Mohinder Singh Gill & Anr. Vs. the Chief Election Commissioner, New Delhi & Ors., reported in 1978 Volume 1 SCC, 405.

As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncement, this Court is of the considered view that impugned order is not tenable in the eyes of law and as such, same is hereby quashed and set aside. The writ petitioner is entitled for an opportunity of hearing to prove her case that she was solely dependent on income of her father at that time and at present does not have sufficient means to run her household. The respondent shall give an ample opportunity of hearing and also consider the dependent certificate produced by the petitioner and if satisfied upon enquiry, that she was fully dependent on the income of her father at the time of death, they should consider the case of the petitioner for compassionate appointment and letter of appointment to that effect shall be issued within a period of four weeks from the date of receipt of a copy of this order.

Accordingly, writ petition stands allowed.

(Dr. S.N. Pathak, J.) punit/-