Subasiya Devi Wife Of Late Balkesh ... vs Bharat Coking Coal Limited (Bccl) ...
2023 Latest Caselaw 1180 Jhar

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            IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          W.P.(S) No. 4200 of 2019
                                      ----
         Subasiya Devi wife of Late Balkesh Nonia, resident of Village
         Muraidih Colony, PO Pochari, PS Barora, District Dhanbad.
                                                 ...    Petitioner
                                   -versus-
         1. Bharat Coking Coal Limited (BCCL) a subsidiary of Coal India
         Limited, through its Chairman-cum-Managing Director, having Office
         at Koyla Bhawan, Koyla Nagar, District Dhanbad.
         2. The Director (Personnel), BCCL, having Office at Koyla Bhawan,
         Koyla Nagar, District Dhanbad.
         3. The General Manager (Personnel)/APM, B.C.C.L. Barora Area,
         PO Nawagarh, PS Baghmara, District Dhanbad.
         4. The Project Officer (Administration), B.C.C.L., Phulari Tanr
         Colliery, Barora Area, PO Nawagarh, PS Baghmara, Dist. Dhanbad.
         5. The Personal Manager (Administration), B.C.C.L., Phulari Tanr
         Colliery, Barora Area, PO Nawagarh, PS Baghmara, District
         Dhanbad.
                                                 ...    Respondents
                                      ----
         CORAM : HON'BLE MR. JUSTICE ANANDA SEN
                                ----
    For the Petitioner :  Mr. Sandip Kumar Burnwal, Advocate
    For the Respondents : Mr. Shivam Utkarsh Sahay, Advocate
                                ----
                            ORDER

RESERVED ON 13.02.2023 PRONOUNCED ON 17.03.2023

Petitioner, in this writ petition, has prayed to quash the order dated 25/26.03.2019 (Annexure 12) whereby claim of daughter of this petitioner for appointment on compassionate ground has been rejected. Further prayer has been made to appoint the daughter of this writ petitioner on compassionate ground.

2. Counsel for the petitioner submits that the daughter of the petitioner, namely, Sunita Devi, along with her family members were dependent on her father, i.e., husband of this petitioner, who was an employee in Bharat Coking Coal Limited. As there is a scheme for compassionate appointment prevalent in Bharat Coking Coal Limited for grant of compassionate appointment on death of an employee, daughter being dependent, should have been appointed on compassionate ground. He submits that as per the judgment of a Division Bench of this Court, though the scheme does not provide for grant of compassionate appointment to the married daughter, yet it has been held that married daughters are also eligible for grant of compassionate appointment.

3. Counsel for the respondents submits that the married daughter is not a dependent as per the scheme of NCWA, but, admitted that there is a

judgment of a Division Bench of this Court, which included married daughter to be eligible for grant of compassionate appointment. He submits that very recently, the Hon'ble Supreme Court in the case of State of Maharashtra & Another versus Madhuri Maruti Vidhate reported in 2022 SCC OnLine SC 1327 and in the case of Director of Treasuries in Karnataka & Another versus V. Somyashree reported in (2021) 12 SCC 20 has held that married daughter is not entitled for grant of compassionate appointment if she is not eligible as per the scheme. He further argued that even if for the sake of argument, it is accepted that the married daughter is dependant, then it has to be proved that such married daughter was fully dependent upon the deceased employee. In the instant case, admittedly daughter of this petitioner is married and her husband is running a shop, thus, this writ petition is liable to be dismissed. He also argues that the basic purpose of grant of compassionate appointment is to extend immediate relief to the family of the deceased employee. He submits that there is a scheme of paying monetary compensation per month to the widow, which at present is, approximately, Rs.25,000/- per month. If that amount is paid, the widow will sufficiently be protected and as per the judgment of the Hon'ble Supreme Court in the aforesaid cases, no compassionate appointment can be granted in this case also.

4. The husband of this petitioner, namely, Balkesh Nonia was an employee of Bharat Coking Coal Limited. He was working as a Fitter being appointed on 05.11.1979. While he was in service, he died on 06.06.2016. He died leaving behind this petitioner, who is the widow and two daughters, namely, Sunita Kumari @ Sunita Devi and Anita Kumari @ Anita Devi. Both of the daughters are married. One of his daughters, Sunita Kumari is seeking appointment through her mother, who is the petitioner. Her sister has no objection if Sunita Kumari is given appointment. Sunita Kumari has also sworn an affidavit that she will look after her mother. It is her case that Sunita Kumari and her husband are fully dependent on her mother, thus, it is necessary to give compassionate appointment. As the compassionate appointment was not granted, she approached this Court by filing W.P.(S) No.5783 of 2017. The said writ petition, along with other cases was disposed of on 13.09.2018, without entering into the factual aspects, rather based on the judgment of the Division Bench of this Court in the case of Central Coalfields Ltd. versus Hemanti Devi & Others (L.P.A. No.196 of 2017), wherein it has been held that married daughter is eligible to be appointed on compassionate ground. The Court, thus, remanded the matter to the authorities of Bharat Coking Coal

Limited to scrutinize the individual claim of the petitioners in terms of Clause 9.3.0 of NCWA. After remand the claim of the petitioner was rejected holding that Sunita Devi was not dependent upon the deceased. The said order is challenged before this Court in the instant writ petition.

5. Compassionate appointment is governed by NCWA. Relevant clauses of NCWA are as follows: -

9.3.0 Provision of Employment to Dependants 9.3.1 Employment would be provided to one dependant of workers who are disabled permanently and also those who die while in service. The provision will be implemented as follows:

9.3.2 Employment to one dependant of the worker who dies while in service. In so far as female dependants are concerned, their employment/payment of monetary compensation would be governed by para 9.5.0 9.3.3 The dependant 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 earning of the deceased may be considered to be dependants of the deceased.

9.3.4 The dependants to be considered for employment should be physically fit and suitable for employment 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.

6. From the aforesaid provision, it is clear that one of the dependent can be employed if the employee dies in harness. The word 'dependant' has been defined in Clause 9.3.3, which admittedly does not include a married daughter. A Division Bench of this Court in the case of Central Coalfields Ltd. versus Hemanti Devi & Others (L.P.A. No.196 of 2017), has held that married daughters are also entitled for compassionate appointment. The Hon'ble Supreme Court in the case of Director of Treasuries in Karnataka & Another versus V. Somyashree reported in (2021) 12 SCC 20 was considering a case where divorced daughter is eligible to be appointed on compassionate ground as per the Karnataka Civil Services (Appointment on Compassionate Ground) Rules, 1996. As per the said Rules, dependants included unmarried or widowed daughter, but neither married nor divorced daughter. The High Court passed an order in favour of the claimant allowing

her claim and directed to grant compassionate appointment holding that a divorced daughter would fall in the same clause and can be equated with an unmarried daughter or widowed daughter. The Hon'ble Supreme Court, considering the Rules and the judgments, at paragraph 10.1 to 10.5 of the said judgment, has held as under: -

10.1. That the compassionate appointment is an exception to the general rule.

10.2. That no aspirant has a right to compassionate appointment.

10.3. 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.

10.4. 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.

10.5. The norms prevailing on the date of consideration of the application should be the basis for consideration of claim for compassionate appointment.

7. Further, at paragraph 11 of the said judgment, the Hon'ble Supreme Court has held that the High Court had gone beyond the Rules of 1996 by directing the appellants to consider the case of divorced daughter for employment, on compassionate ground. The Supreme Court took into consideration the dependents in family and held that as per the Rules, only unmarried daughter and widowed daughter would be treated to be dependant and the claimant in that case was neither unmarried nor widowed daughter, rather, she was divorced or she can be said to be a married daughter. Thus, the Hon'ble Supreme Court dismissed the claim of the claimants by allowing the appeal filed by the employer.

8. In the case of State of Maharashtra & Another versus Madhuri Maruti Vidhate reported in 2022 SCC OnLine SC 1327, the Hon'ble Supreme Court at paragraph 12 thereof has held as under:-

12. Thus, as per the law laid down by this Court in the aforesaid decisions, compassionate appointment is an exception to the general rule of appointment in the public services and is in favour of the dependents of a deceased dying in harness and leaving his family in penury and without any means of livelihood, and 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 dependants 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 such family a post much less a post held by the deceased.

Further, at paragraph 11 of the aforesaid judgment, the Hon'ble Supreme Court relied upon the case of Govind Prakash Verma versus LIC reported in (2005) 10 SCC 289, in which the case of Umesh Kumar Nagpal versus State of Haryana reported in (1994) 4 SCC 138 was relied upon by the Hon'ble Supreme Court. It is necessary to quote paragraph 11 of Madhuri Maruti Vidhate (supra), which reads as under: -

11. In the case of State of Himachal Pradesh v. 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 v. 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 dependants 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."

In the aforesaid judgment of Madhuri Maruti Vidhate (supra), the Hon'ble Supreme Court also relied upon its decision in the case of Director of Treasuries (supra) and in the case of N.C. Santosh versus State of Karnataka and Others reported in (2020) 7 SCC 617.

9. Thus, from the judgment of the Hon'ble Supreme Court in the case of Director of Treasuries (supra), it is clear that the Hon'ble Supreme

Court has held that a married daughter, if not included in the definition of dependants, as per the scheme of compassionate appointment, is not entitled to be appointed on compassionate ground. Be it noted that this judgment of the Hon'ble Supreme Court is delivered much after the judgment of the Division Bench of this Court, which held that a married daughter should be included for compassionate appointment in terms of NCWA, though the definition does not provide for.

10. The judgment of the Hon'ble Supreme Court, which is delivered in 2021, is the latest judgment, which decided the issue. The judgment of the Hon'ble Supreme Court is binding upon this Court. The Hon'ble Supreme Court in the case of Gregory Patrao and Others versus Mangalore Refinery and Petrochemicals Limited and Others reported in (2022) 10 SCC 461 at paragraph 16 thereof as follows:-

16. ... Not following the binding precedents of this Court by the High Court is contrary to Article 141 of the Constitution of India. Being a subsequent decision, in which the earlier decisions were considered and distinguished by this Court, the subsequent decision of this Court was binding upon the High Court and not the earlier decisions, which were distinguished by this Court.

11. Thus, since the Hon'ble Supreme Court has held that married daughter or a divorced daughter, if not included in the scheme for compassionate appointment as a dependant, cannot be granted compassionate appointment, I am of the view that the married daughter, who is seeking appointment on compassionate ground in this case, cannot be appointed on compassionate ground.

12. Another aspect that needs to be considered is whether Sunita Kumari @ Sunita Devi was actually dependant on her father. It is admitted case that Sunita Kumari @ Sunita Devi is married to Arun Nonia and Arun Nonia is running a small shop, which clearly suggests that Arun Nonia was earning to maintain his family. But, as per the petitioner, his earning was not sufficient for their livelihood. Further, she stated before the authorities that the husband of this petitioner used to financially support them (Arun Nonia and his family) as they used to reside with them.

13. The deceased workman, admittedly, left behind his widow and two married daughter. The primary responsibility to maintain the married daughter is upon her husband and not upon the father. If the father by way of gratis is extending some monetary help to his son-in-law or his family, it cannot be said that he is legally duty bound to maintain the daughter when the husband is an able bodied person and is also earning by running a shop. It is the case of the

petitioner that the husband of her daughter is not earning sufficiently for their livelihood. This word 'sufficient' is a very relative term and varies from person to person, family to family on the basis of their 'needs' and 'wants'.

14. If a married wife is unable to maintain herself, she has several remedies including invoking Section 125 of the Code of Criminal Procedure, which provides that husband has to maintain the wife, who is unable to maintain herself. Further, if we see Section 125(1)(c) of the Code of Criminal Procedure, we find that married daughter has been excluded from seeking maintenance from her father. This provision of Section 125(1)(c) of the Code of Criminal Procedure, clearly, provides that married daughter has to be maintained by the husband. Further, Hindu Adoption and Maintenance Act, Chapter III provides for maintenance. Section 18 of the said Act provides that the wife should be maintained by the husband. Section 20 of the said Act deals with maintenance of children and aged parents, which reads as under: -

20. Maintenance of children and aged parents. - (1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.

(2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.

(3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property.

15. From the aforesaid Section 20, especially, sub Section (2) and (3) thereof, it is clear that only unmarried daughter has to be legally maintained by her father, if she is unable to maintain herself, out of her own earning or property. The word 'dependant' is defined in Section 21 of the said Act, which does not include a married daughter.

16. From both the provisions, i.e., Section 125 of the Code of Criminal Procedure and Hindu Adoption and Maintenance Act, it is obvious that married daughter, whose husband is alive, cannot be said to be dependant upon the father.

17. As observed earlier, it is an admitted case of the petitioner that the husband of Sunita Devi, i.e., Arun Nonia is having a shop and is earning some amount, which according to them is not sufficient. Insufficiency of income of husband cannot be a ground to seek compassionate appointment by a married daughter.

18. Considering this, I hold that the daughter namely, Sunita Kumari @ Sunita Devi was not dependant upon the deceased employee. Merely making some bald statement that the married daughter was dependant on the deceased employee and the husband of the daughter (Arun Nonia) was not earning sufficiently cannot be a ground for claiming compassionate appointment.

19. In the case of Madhuri Maruti Vidhate (supra), the Hon'ble Supreme Court relying upon the decision in the case of Mumtaz Yunus Mulani versus State of Maharashtra reported in (2008) 11 SCC 384, has held that compassionate appointment is not a source of recruitment. The financial position of the family would need to be evaluated on the basis of provisions contained in the scheme. In this case NCWA provides for grant of monetary compensation in lieu of compassionate appointment, which is as per Clause 9.5.0. The said compensation is paid on monthly basis from the date of death of employee till the widow attains the age of 60 years. The amount has been revised from time to time and as on date a widow gets approximately Rs.26,000/- per month. In this case, the only person, who can be said to be dependant upon the workman, is the widow, who needs to be looked after. She will also get pension and other retiral benefits of the deceased. She is also entitled to receive the monetary compensation, which is now a hefty amount. This amount is now sufficient for maintaining the widow.

20. Considering what has been held above, I am of the opinion that the respondents have rightly rejected the claim of the petitioner on the ground that the husband of the married daughter is earning by running a shop and as per the judgment of the Hon'ble Supreme Court in the case of Director of Treasuries (supra), married daughter cannot be said to be dependant if she is not included in the scheme.

21. Since there is a provision for payment of monthly monetary compensation in lieu of compassionate appointment, widow is entitled to receive the monthly monetary compensation. Widow is entitled to receive the said amount from the date of death of her husband till she attains the age of 60 years. Petitioner should approach the respondents within four weeks and complete all the formalities so that monthly monetary compensation be paid to the petitioner within four weeks thereafter.

22. With the aforesaid observations and directions, this writ petition is dismissed.

(Ananda Sen, J.) Kumar/Cp-02