Reyan Khan vs Western Coal Fields Ltd.
2023 Latest Caselaw 6291 MP

                             1

      IN THE     HIGH COURT          OF MADHYA
                        PRADESH

                  AT J A B A L P U R
                         BEFORE
        HON'BLE SHRI JUSTICE ANAND PATHAK



             WRIT PETITION No. 11182 of 2019

BETWEEN:-
REYAN KHAN, S/O SARWAN, AGED
ABOUT 12 YEARS, R/O GHODAWADI
JHARNA TAHSIL JUNNARDEO, DISTRICT
CHHINDWARA (MADHYA PRADESH)
OCCUPATION: UNEMPLOYED, MINOR -
THROUGH     NATURAL    GUARDIAN,
MOTHER SMT. MUMTAJ, W/O SARWAN,
AGED   ABOUT     40 YEARS,    R/O
GHODAWADI      JHARNA,     TAHSIL
JUNNARDEO, DISTRICT CHHINDWARA
(M.P.)
                                          .....PETITIONER
(BY SHRI JAIDEEP SIRPURKAR - ADVOCATE)
AND
   WESTERN   COAL   FIELDS   LTD.
   THROUGH ITS CMD, COAL ESTATE,
1. CIVIL      LINES       NAGPUR
   (MAHARASHTRA)

   GENERAL MANAGER WESTERN COAL
   FIELDS   LTD.    GHODADONGRI
2. COLLERY,     KANHAN     AREA,
   CHHINDWARA (MADHYA PRADESH)

3. DEEPAK KUMAR, S/O SARWAN,
   AGED   ABOUT   30   YEARS,
                                                    2

   HOSHANGABAD, R/O GHODAWADI
   JHARNA,   TAHSIL  JUNNARDEO,
   DISTRICT CHHINDWARA (MADHYA
   PRADESH)
                                                                           .....RESPONDENTS

(RESPONDENT NOS.1 AND 2 BY SHRI RAJAS POHANKAR - ADVOCATE)
----------------------------------------------------------------------------------------
Reserved on          : 19.1.2023
Pronounced on:19.4.2023
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This petition coming on for admission this day, the court passed the

following:

                                             ORDER

The present petition is preferred by the petitioner seeking the

following reliefs:

(i) This Hon'ble Court may kindly be pleased to issue appropriate

writ/order/direction to the respondents to include petitioner's name in live

roster as per Chapter IX of National Coal Wages Agreement and to

consider petitioner's candidature on the petitioner's attaining majority.

(ii) That in the facts and circumstances of the case, any other relief

deemed fit may kindly be granted.

2. It is the submission of learned counsel for petitioner that father of

petitioner, namely Sarwan, was employed with respondent nos.1 and 2 as

Tub Loader and was posted at Ghodadongri, Collery No.1, Kanhan Area,

Chhindwara, with Western Coal Fields Limited. Father of petitioner died

in harness on 20.8.2014. Thereafter, petitioner along with his siblings and

mother instituted proceedings under section 372 of the Indian Succession

Act for grant of succession certificate to petitioner in order to enable him

to realize the amount of gratuity and provident fund of his deceased

father. The trial court vide order dated 30.11.2017 (Annexure P/1) held

the petitioner to be one of the successors of his deceased father, besides

respondent no.3.

3. Meanwhile, it appears that respondent no.3 filed an application for

grant of compassionate appointment and it further appears that he was

given benefit because of order dated 13.1.2022 passed by this Court in

Writ Petition No.22876/2019 wherein direction was given for grant of

compassionate appointment to respondent no.3.

4. As per the National Coal Wage Agreement - IX, Clause 9.5.0, in case

of death either in Mine accident or for other reasons or medical unfitness

if no employment has been offered and the male dependent of the

deceased-worker is 12 years or above in age, then he will be kept on a

live roster and would be provided employment on attaining majority.

Therefore, in view of the aforesaid provision, the petitioner is eligible for

appointment on attaining majority. Since the respondents have not taken

any decision, therefore petitioner's name be kept in live roster for grant of

employment on attaining majority.

5. Learned counsel for respondents opposed the prayer and while

referring the contents of reply submits that at the time of death of

employee Sarwan, the petitioner herein was seven years old and that too

he was born out of his second wife Mumtaz. In succession proceedings

held at the instance of petitioner and his mother and other siblings, the

judgment of trial court vide order dated 30.11.2017 indicates that mother

of petitioner was not found to be legitimate wife of late Sarwan but the

children were found entitled for the succession benefits regarding the

estate of late Sarwan. Therefore, petitioner was not entitled for

compassionate appointment because he was only seven years of age at the

time of death of late Sarwan and sought inclusion of his name in the live

roster. The petitioner ought to have been 12 years of age at the time of

death of his father. He further refers the order dated 13.1.2022 passed in

Writ Petition No.22876/2019 in which the present petitioner was arrayed

as respondent no.4 and the same has been disposed of with a direction to

the respondent-company to consider the claim of Mr. Deepak Kumar

(respondent no.3 herein) on its own merits without insisting for NOC

from the petitioner herein. Challenging the said order, Writ Appeal

No.652/2022 was filed which was dismissed as withdrawn vide order

dated 23.8.2022. Therefore, nothing survives for adjudication.

6. Heard the learned counsel for parties at length and perused the

documents appended thereto.

7. This is a case where petitioner, who is apparently an illegitimate child

of late Sarwan from his second marriage with Mumtaz, is asserting his

claim for compassionate appointment.

8. At the outset, considering the order dated20.11.2017 passed by Civil

Judge, Class I, Junnardeo, district Chhindwara, it appears that the trial

court did not find mother of petitioner as wife of late Sarwan. However,

the court found petitioner and his other siblings to be children of late

Sarwan and therefore held accordingly. The said order was confirmed

before the appellate court also. Thus, it is clear that mother of petitioner

was not the legitimate wife of late Sarwan and therefore as per National

Coal Wage Agreement - IX and its different provisions, she was not

entitled to receive monetary compensation. Besides that, if the male

dependent of the concerned worker is twelve years or above in age, then

only he will be kept on a live roster. Here, the petitioner was seven years

old when his father late Sarwan died in harness and, therefore, he cannot

be kept on a live roster. Now, the petitioner is twelve years old and,

therefore, he is seeking reservation of a berth for posterity, which is not

permissible. Post cannot be kept vacant for such an indefinite period.

9. Even otherwise, it is true that compassionate appointment is a special

mechanism provided by the modal employer as benevolent gesture for

those employees who passed away during harness rendering families

vulnerable to the vagaries of life but at the same time, employee has to

ensure that compassionate appointment be given to the family members

and/ or as per their qualification and as per the availability of vacant post,

provided no other family member is in government job. Since

compassionate appointment is antithesis to the Articles 14 and 16 of the

Constitution because it dehors the statutory rule meant for recruitment in

general, therefore, only eligible person can be held entitled for

appointment on compassionate basis.

10. A co-ordinate Bench vide order dated 13.1.2022 passed in Writ

Petition No.22876/2019 held in favour of respondent no.3 and found him

to be the legitimate claimant for compassionate appointment and rightly

so because the same has been affirmed at writ appellate stage also.

11. Cumulatively, no case for interference is made out. Petition sans merit

is hereby dismissed.

(ANAND PATHAK) JUDGE ps

Digitally signed by PRASHANT SHRIVASTAVA Date: 2023.04.19 19:32:20 +05'30'