Jharkhand High Court
Ram Swaroop Manjhi vs Bharat Coking Coal Limited ... on 6 December, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 6656 of 2017
----
Ram Swaroop Manjhi S/o Late Sanichar Manjhi, resident of
Kenduadih, E.B. Section, PO Kusunda, PS Kusunda, District
Dhanbad.
... Petitioner
-versus-
1. Bharat Coking Coal Limited through its Chairman cum Managing
Director, Koyla Bhawan, PO Koyla Nagar, PS Saraidhella, District
Dhanbad.
2. Director (Personnel), Bharat Coking Coal Limited, Koyla Bhawan,
PO Koyla Nagar, PS Saraidhella, District Dhanbad.
3. General Manager, P.B. Area, Bharat Coking Coal Limited, PO PS
Kerkend, District Dhanbad.
4. General Manager (P) / MP & R, Bharat Coking Coal Limited, Koyla
Bhawan, PO Koyla Nagar, PS Saraidhella, District Dhanbad.
... Respondents
CORAM : HON'BLE MR. JUSTICE ANANDA SEN
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For the Petitioner : Mr. Pramod Kumar Chowdhary, Advocate
For the Respondents : Mr. Amit Kumar Das, Advocate
Mr. Shivam Utkarsh Sahay, Advocate
----
ORDER
RESERVED ON 22.11.2022 PRONOUNCED ON 6.12.2022
Heard learned counsel for the petitioner and learned counsel for
the respondents.
2. Petitioner, in this writ petition, is praying for grant of
compassionate appointment, in lieu of death of the mother-in-law, who died in
harness. Further, a prayer has been made to set aside the order dated
07.04.2017, whereby the competent authority has dismissed the claim for
compassionate appointment of this petitioner.
3. Mother-in-law of this petitioner was a permanent employee of
Bharat Coking Coal Ltd., who died in harness on 10.08.2005, leaving behind
her husband and wife of this petitioner, being the daughter, who is married.
This petitioner being the son-in-law of the deceased, applied for grant of
compassionate appointment along with all the documents, but, as no order
was passed, he approached this Court by filing W.P.(S) No.3117 of 2016. The
said writ petition was disposed of on 28th October, 2016, directing the
respondents to consider the case and pass an order on merits and act in
accordance with the said order, if the order finds favour to the petitioner.
4. The respondents, considering the case of the petitioner,
dismissed the application for grant of compassionate appointment by passing
the impugned order, resulting in this application.
5. Counsel for the petitioner submits that as per National Coal Wage
Agreement (hereinafter referred to as 'NCWA') son-in-law is eligible for grant
of appointment. Thus, considering the fact that husband of the deceased
(father-in-law of this petitioner) is over age, the only eligible candidate is this
petitioner, who should have been considered for grant of compassionate
appointment. He submits that the rejection of petitioner's application for grant
of compassionate appointment is absolutely bad, which needs to be set aside
and the petitioner be offered appointment on compassionate ground.
6. The facts are admitted. Mother-in-law of this petitioner, namely,
Bada Parwatia Kamin was an employee of Bharat Coking Coal Limited. She
died in harness on 10.08.2005. She left behind her married daughter (wife of
this petitioner) and her husband. As the husband of the deceased has crossed
the age of appointment, his son-in-law has applied for grant of compassionate
appointment.
7. It is well settled that compassionate appointment is not a rule, but
is an exception. A candidate has got no right to be appointed on
compassionate ground as the same is in violation of Articles 14 and 16 of the
Constitution of India. The Hon'ble Supreme Court in Civil Appeal No.6938 of
2022 [State of Maharashtra and Anr. Versus Ms. Madhuri Maruti Vidhate
(since after marriage Smt. Madhuri Santosh Koli)] at paragraph 6 thereof
has held as under:-
6. As per the law laid down by this Court in catena of
decisions on the appointment on compassionate ground, for
all the government vacancies equal opportunity should be
provided to all aspirants as mandated under Articles 14 and
16 of the Constitution. However, appointment on
compassionate ground offered to a dependent of a
deceased employee is an exception to the said norms. The
compassionate ground is a concession and not a right.
8. The approach of compassionate appointment has also been dealt
with by the Hon'ble Supreme Court in paragraph 6.1 of the aforesaid judgment
in Civil Appeal No.6938 of 2022 after taking note of the earlier judgments of
the Hon'ble Supreme Court. It is necessary to quote paragraph 6.1, which
reads as under:-
6.1 In the case of State of Himachal Pradesh and Anr. Vs.
Shashi Kumar reported in (2019) 3 SCC 653, this Court had
an occasion to consider the object and purpose of
appointment on compassionate ground and considered the
decision of this Court in the case of Govind Prakash Verma
Vs. LIC, reported in (2005) 10 SCC 289, in paras 21 and 26, it
is observed and held as under:-
21. The decision in Govind Prakash Verma [Govind Prakash
Verma v. LIC, (2005) 10 SCC 289, has been considered
subsequently in several decisions. But, before we advert to
those decisions, it is necessary to note that the nature of
compassionate appointment had been considered by this
Court in Umesh Kumar Nagpal v. State of Haryana [Umesh
Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138]. The
principles which have been laid down in Umesh Kumar
Nagpal [Umesh Kumar Nagpal v. State of Haryana, (1994) 4
SCC 138] have been subsequently followed in a consistent
line of precedents in this Court. These principles are
encapsulated in the following extract: (Umesh Kumar
Nagpal case [Umesh Kumar Nagpal v. State of Haryana,
(1994) 4 SCC 138] SCC pp. 139-40, para 2)
2. ... As a rule, appointments in the public services
should be made strictly on the basis of open
invitation of applications and merit. No other mode of
appointment nor any other consideration is
permissible. Neither the Governments nor the public
authorities are at liberty to follow any other
procedure or relax the qualifications laid down by the
rules for the post. However, to this general rule which
is to be followed strictly in every case, there are
some exceptions carved out in the interests of justice
and to meet certain contingencies. One such
exception is in favour of the dependants of an
employee dying in harness and leaving his family in
penury and without any means of livelihood. In such
cases, out of pure humanitarian consideration taking
into consideration the fact that unless some source
of livelihood is provided, the family would not be able
to make both ends meet, a provision is made in the
rules to provide gainful employment to one of the
dependents of the deceased who may be eligible for
such employment. The whole object of granting
compassionate employment is thus to enable the
family to tide over the sudden crisis. The object is not
to give a member of such family a post much less a
post for post held by the deceased. What is further,
mere death of an employee in harness does not
entitle his family to such source of livelihood. The
Government or the public authority concerned has to
examine the financial condition of the family of the
deceased, and it is only if it is satisfied, that but for
the provision of employment, the family will not be
able to meet the crisis that a job is to be offered to
the eligible member of the family. The posts in
Classes III and IV are the lowest posts in non-manual
and manual categories and hence they alone can be
offered on compassionate grounds, the object being
to relieve the family, of the financial destitution and
to help it get over the emergency. The provision of
employment in such lowest posts by making an
exception to the rule is justifiable and valid since it is
not discriminatory. The favourable treatment given to
such dependant of the deceased employee in such
posts has a rational nexus with the object sought to
be achieved viz. relief against destitution. No other
posts are expected or required to be given by the
public authorities for the purpose. It must be
remembered in this connection that as against the
destitute family of the deceased there are millions of
other families which are equally, if not more destitute.
The exception to the rule made in favour of the family
of the deceased employee is in consideration of the
services rendered by him and the legitimate
expectations, and the change in the status and
affairs, of the family engendered by the erstwhile
employment which are suddenly upturned."
9. At paragraph 5 of the aforesaid judgment in Civil Appeal No.6938
of 2022, the rule of compassionate appointment has been summarized by the
Hon'ble Supreme Court, which reads as under:-
5. While considering the issue involved in the present
appeal, the law laid down by this Court on compassionate
ground on the death of the deceased employee are required
to be referred to and considered. In the recent decision, this
Court in the case of Director of Treasuries in Karnataka and
Anr. Vs. V. Somyashree, 2021 SCC Online SC 704, had
occasion to consider the principle governing the grant of
appointment on compassionate ground. After referring to
the decision of this Court in N.C. Santosh Vs. State of
Karnataka, (2020) 7 SCC 617, this Court has summarized the
principle governing the grant of appointment on
compassionate ground as under:-
(i) that the compassionate appointment is an exception to
the general rule;
(ii) that no aspirant has a right to compassionate
appointment;
(iii) 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;
(iv) 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;
(v) the norms prevailing on the date of the consideration of
the application should be the basis for consideration of
claim for compassionate appointment.
8. Admittedly, there is a scheme, which governs compassionate
appointment in Bharat Coking Coal Limited and in all the subsidiaries of Coal
India Limited, which is known as National Coal Wage Agreement. As per
Clause 9.3.2 of the said scheme, employment to one dependent of the worker
who dies while in service is to be given by way of social security measure.
Who would be dependents for the aforesaid purpose is enumerated in Clause
9.3.3. It is necessary to quote Clause 9.3.3:-
9.3.3 the dependeant 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 dependent on the earnings of
the deceased may be considered to be the dependant of the
deceased.
9. From the aforesaid provision, it is clear that there are two types of
dependents, direct dependents and indirect dependents. Wife/husband, as the
case may be, unmarried daughter and son and legally adopted son are direct
dependents. Indirect dependents are brother, widowed daughter / widowed
daughter-in-law or son-in-law residing with the deceased and almost wholly
dependent on the earning of the deceased. Further, as per the said provision,
if any direct dependents are available for appointment, then indirect
dependents would not be considered. Further, these indirect dependents
should be residing with the deceased and almost wholly dependent on the
earning of the deceased. From the aforesaid provision, it is clear that indirect
dependent will only be considered for appointment when there is no other
direct dependent available for appointment and those indirect dependents
must reside with the workman and should also be wholly dependent on the
earning of the deceased.
10. The petitioner is the son-in-law of the deceased, thus, is an
indirect dependent. Though married daughter is not treated to be dependent
on the deceased, but, vide judgment passed by a Division Bench of this Court
in L.P.A. No.196 of 2017 by order dated 16th August, 2018, it has been held
that married daughter will also come within the definition of dependent. Thus,
by virtue of the aforesaid decision, married daughter will also be treated to be
a dependent.
11. In that view, a daughter is within the scope of definition of
'dependent' and should be treated to be a direct dependent as she is the direct
heir of the deceased and is related by blood and birth, whereas the son-in-law
is an indirect dependent as he is inducted in the family by marriage. Since the
daughter, though married, is a direct dependent, she will be eligible to be
appointed and should be given employment.
12. In the instant case, the condition laid down in Clause 9.3.3 of
National Coal Wage Agreement is that in absence of direct dependent for
employment, indirect dependent would be considered. In this case, since there
is a direct dependent, i.e., daughter, the son-in-law will have no right to get
appointment. Since there is direct dependent, all the indirect dependents will
stand excluded by virtue of definition of Clause 9.3.3 of the National Coal
Wage Agreement. Further an indirect dependent must be residing with the
deceased employee and must be wholly dependent on the earning of the
deceased employee. In this case, there is nothing on record to suggest that
this petitioner was fully dependent and was residing with the deceased
employee. Thus, it can safely be held that he does not qualify to be termed as
dependent. Another social aspect, which cannot be lost sight of, is that
daughters should always be given preference over the son-in-law as the
employment is claimed in lieu of death of her father or mother. There may be a
situation where after taking employment, the son-in-law may desert his wife,
i.e., daughter of the deceased employee, which will be another catastrophe for
the family.
13. Considering all these points, I find no merit in this writ petition.
The application for grant of compassionate appointment of this petitioner has
rightly been rejected by the respondents. This writ petition is, accordingly,
dismissed.
(Ananda Sen, J.)
Kumar/Cp-02
