Sunil Tudu vs M/S Eastern Coalfields Limited ...
2022 Latest Caselaw 4900 Jhar

                  IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                     WP(S) No. 1771 of 2017
                                              ------

           Sunil Tudu.....                                          ....Petitioner(s)
                                              Versus

1. M/S Eastern Coalfields Limited (ECL), Burdwan, West Bengal, through its Chairman-cum-Managing Director.

2. The Chairman-cum-Managing Director, M/s ECL , Burdwan West Bengal.

3. The Director, Personnel, M/s ECL, Burdwan, West Bengal.

4. The General Manager (Personnel) M/s ECL, Burdwan, West Bengal.

5. The General Manager (I&R), M/s ECL, Burdwan, West Bengal.

6. The General Manager, Mugma Area of ECL, Nirsa, Dhanbad.

7. The Personnel Manager, Mugma Area of ECL, Nirsa, Dhanbad.

8. The Agent/Deputy CME (Chief Mining Engineer), Shampur Colliery, Mugna area of ECL, Nirsa, Dhanbad.

9. The Personnel Manager, Shampur Colliery, ECL, Nirsa, Dhanbad.

....Respondent(s).

           CORAM       :       HON'BLE MR. JUSTICE ANANDA SEN.
                                              ------

For the petitioner(s): Mr. Mahesh Tewari, Advocate.

For the Respondents: M/s Rajesh Lala and Kumar Nishant.

-----

C.A.V. on: 09.11.2022 Pronounced on: 06 /12/2022

Order No. 6: In this writ petition, the petitioner prays for quashing the order dated 24.12.2015, whereby the respondents have rejected the claim for grant of compassionate appointment to the petitioner. It has further been payed for a direction upon the respondents to grant compassionate appointment to this petitioner, who is son-in-law of the deceased.

2. One Prem Prakash Hembrom, the father in-law of the petitioner, who was an employee of M/s Eastern Coalfields Limited (for short 'ECL') died in harness on 15.8.1999 leaving behind his wife, two sons and two daughters. This petitioner is the son-in-law of the deceased -Prem Prakash Hembrom, being the husband of Dipika Hembrom. Upon the death of the deceased, son-in-law applied for grant of compassionate appointment, as he claimed that he was dependent upon the deceased and residing with him. The marriage of this petitioner and Dipika Hembrom (daughter of the deceased) was solemnized on 27.4.1999. It is the mother in-law who sponsored the name of this petitioner for grant of compassionate appointment. Be it noted that another daughter has expired and the second son of the deceased also died on 22.5.2001. It is further case of the petitioner that respondents are governed by the National Coal Wage Agreement (for short 'NCWA') and as per the provisions of NCWA, the son-in-law being the dependent is entitled to be appointed on compassionate ground.

3. The case of the respondents is that the petitioner is an indirect dependent and there being direct dependent, he cannot be appointed on

compassionate ground. Thus, the case of the petitioner was rejected vide reasoned order dated 24.12.2015.

4. 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.

5. 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."

6. 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.

7. 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.

8. 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 upon 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 deceased and should also be wholly dependent on the earning of the deceased.

9. 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.

10. 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.

11. 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 are direct dependents, i.e., son and 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 upon the earning of the deceased employee. In this case, there is nothing on record, except the submission of the petitioner that he was residing with the deceased, to suggest that this petitioner was fully dependent upon 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.

12. Further from the impugned order, I find that one Rakesh Hembrom, the son of the deceased employee, has refused to accept the employment stating that he is employed in a private concern and is drawing handsome salary. This clearly suggests that the family of the deceased, at the time of death of the deceased is secured monetarily and there was no financial crisis in 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.

Anu/-CP2. (ANANDA SEN, J.)