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2006 DIGILAW 665 (JHR)

Bachandeo Kumar v. Bharat Coking Coal Ltd.

2006-05-18

PERMOD KOHLI, SUDHANSU JYOTI MUKHOPADHAYA

body2006
JUDGMENT Permod Kohli, J. 1. The mother of the petitioner, namely, late Munarki Kamin, was working as Coal Stacker in Fularitand colliery under Area No. 1 of M/s B.C.C.L. Dhanbad with effect from 17.10.1971. She died on 18.7.1996 in harness due to illness. The petitioner applied on 7.8.1997, i.e. after a period of one year from the date of the death of his mother, to the respondents for appointment on a future date when he attains majority. The claim of the petitioner was not accepted and was communicated to him vide letter dated 29/30.5.1998. The petitioner again received a letter dated 15.5.1999 from the office of Dy. Personnel Manager, Barora Area, informing him that immediate employment to one of the dependant can be provided if the age of the dependant is 15 years, but as the petitioner has mentioned his age as 14 years in his application and at the time of death of his mother his age was 11 years as such his request for employment cannot be considered. The petitioner claims to have made another representation on 14.7.1999 to the Dy. Chief Personnel Manager, Barora Area No. 1. This was followed by another representation dated 3.9.2002 in the prescribed form wherein he requested for consideration of his case for employment in the light of the documents. Yet the petitioner filed another representation on 23rd July, 2003 followed by another representation dated 1.11.2004. The Project Officer, Fularitand Colliery sent a letter dated 25.3.2004/16.4.2004 to the Dy. Chief Personnel Manager, Barora Area No. I recommending the case of the petitioner for taking action on the basis of another application of the petitioner dated 30th January, 2004. The Dy. Chief Personnel Manager, Barora Area vide letter dated 9.6.2004 addressed to the General Manager (P&IR) of M/s B.C.C.L. conveyed that the claim of the petitioner is belated and sought for opinion whether the claim of the petitioner and request of the Union should be entertained or not?. The petitioner was informed vide letter dated 2/4. 8.2004 that his application is regretted by Competent authority on the ground that at the time of death of his mother he was minor and only 12 years of age. The petitioner was informed vide letter dated 2/4. 8.2004 that his application is regretted by Competent authority on the ground that at the time of death of his mother he was minor and only 12 years of age. It was further mentioned in the letter that at the relevant period the NCWA-V was in force in Coal Industry and as per NCWA-V the minimum age required for male dependant was 15 years as on the date of death of deceased to be kept on live roster of company. The petitioner yet made another representation on 1.9.2004, which was also replied vide letter dated 22/24.11. 2004, wherein it was stated that as per Para 9.5.0.(iii) N.C.W.A.V the effective date of such cases is from 1.1:2000 and not 1.7.1996, as such there is no scope to review the previous decision. The petitioner has challenged this communication as also the letter dated 2/4.8.2004 whereby the claim of the petitioner for employment on compassionate ground has been rejected. 2. Reliance has been placed on Clause 9.5.0 of para(iii) of NCWA-V. Relevant extract of Clause 9.5.0 is quoted hereunder : Provision of employment/monetary compensation to female dependants of workmen who die while in service and who are declared medically unfit as per Clause 9.4,0 above would be regulated as under: (i) .... (ii) .... (iii) In case of death either in mine accident or for other reasons or medical unfitness under Clause 9.4.0, if no employment has been offered and the male dependant of the concerned worker is 12 years and above in age, he will be kept on a live roster and would be provided employment commensurate with his skill and qualifications when he attains the age of 18 years. During the period the male dependant is on live roster, the female dependant will be paid monetary compensation as per rates at paras (i) & (ii) above. This will be effective from 1.1.2000 3. It is accordingly stated that in terms of the aforesaid clause the petitioner, who was 12 years at the time of death of his mother, is entitled to seek employment on attaining age of 18 years. It is alleged that employment has been denied to him illegally. 4. This will be effective from 1.1.2000 3. It is accordingly stated that in terms of the aforesaid clause the petitioner, who was 12 years at the time of death of his mother, is entitled to seek employment on attaining age of 18 years. It is alleged that employment has been denied to him illegally. 4. Respondents in the counter affidavit filed by the Personnel Manager, while raising the question of maintainability of the writ petition, have stated that the petitioner may raise an Industrial dispute, being a workman, in view of a Division Bench Judgment of this Court reported in 1995(1) P.L.J.R. 43(DB). On merit of this controversy, it is stated that at the time of death of the deceased. Munarki Kamin, the petitioner was less than 12 years of age and thus he is not entitled to get employment under Clause 9.3.2 of NCWA-VI. It is further stated that the male dependant of the deceased workman could have been kept on live roster provided the dependant was aged 15 years or above as per Clause 9.5.0 of NCWA-V or NCWA-VI. It is further slated that the provision relating to keeping minor dependant on the live roster has been modified w.e.f. 1.1.2000 inasmuch as from this date the dependant who is aged 12 years or more could be kept on live roster. Since the case of the petitioner is not covered as his mother died on 18.7.1996, he is not entitled to benefit of the same. 5. The claim of the petitioner is in the nature of compassionate appointment. The nature, purpose and object of the compassionate appointment has been laid down by the Apex Court in Umesh Kumar Nagpal v. State of Haryana and Ors. . What has been observed in the aforesaid Judgment which is noticed herein : 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. 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 tied 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 able to meet the crises that a job is to be offered to the eligible member of the family 6. In Jagdish Prasad v. State of Bihar and Anr. , the Apex court while considering the object of compassionate appointment held that the object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family. In this case the member of the family of the deceased was four years age and he applied for appointment after attaining majority and claim for compassionate appointment was rejected by the Honble Apex Court. Similarly in the case of Haryana State Electricity Board v. Naresh Tanwar and Anr. In this case the member of the family of the deceased was four years age and he applied for appointment after attaining majority and claim for compassionate appointment was rejected by the Honble Apex Court. Similarly in the case of Haryana State Electricity Board v. Naresh Tanwar and Anr. , the Honble Apex court declined to grant relief to the dependent of an employee who was minor at the time of death of the bread earner government employee who died in harness and attained majority 12 and 13 years after the death. 7. In State of U.P. and Ors. v. Paras Nath the Apex Court ruled that the purpose of providing employment to a dependant of a government servant dying in harness in preference to anybody else, is to mitigate the hardship caused to the family of the employee on account of his unexpected death while still in service. It was further observed that none of these considerations can operate while the application is made after a long period of time. In this case application made after 17 years was disallowed. 8. In a later judgment (Commissioner of Public Instructions and Ors. v. K.R. Vishwanath) the Honble Apex Court after taking note of its various Judgments, including referred to hereinabove held and reiterated that the appointment to the public service can only be made on touch stone of Articles 14 and 16 of the Constitution and compassionate appointment is an exception to general constitutional mandate in the interest of justice under peculiar circumstances. It was further observed that where law prescribes a limitation for making an application for compassionate appointment it. has to be adhered to. 9. The Division Bench of this Court in Sushil Kumar Vengra v. Union of India and. Ors reported in 2005(1) J.C.R. 282 held as under : When compassionate appointment to a dependant of a public sector undertaking or an entity which is a State within the purview of Article 12 of the Constitution of India is governed by a scheme or rule or circular issued in that behalf dy that entity, appointments could be made by that entity only in terms of the scheme, rules or circular and a court exercising jurisdiction under Article 226 of the Constitution of India does not have jurisdiction to direct the government or the authority concerned to go against its own scheme. 10. 10. From the law laid down by the Apex Court in various judgments noticed hereinabove, it is settled proposition that compassionate appointment cannot be considered to be a source of recruitment or another mode of recruitment to government/public service. The object and purpose of the compassionate appointment for the dependant of the deceased-government servant is to provide immediate financial assistance to the family whose sole bread earner died leaving the family in lurch. The purpose is to enable the family to over come its immediate financial needs. The compassionate appointment cannot be given, as a matter of course, and depends upon various factors, including the financial condition of the family of the deceased and other related factors. Since the compassionate appointment is deviation from the constitutional mandate contemplated by Articles 14 and 16 of the Constitution of India, which permit the employment providing equal and fair opportunity to all the eligible persons, It is necessary that compassionate appointment is regulated by law/rules so as not to nullify the constitutional spirit. Where the rules or norms have been laid down, the compassionate appointment has to be made in accordance with such rules/norms. Applying principle laid down by the Apex Court in its various Judgments to the facts of the present case It is noticed that Clause 9.5.0 of NCWA-V providing 12 years or above age at the time of death was introduced with effect from I.1.2000. Petitioners mother died on 18th July 1996. At the relevant time under the rules in vogue a male dependant of the deceased worker above 15 years of age was entitled to be brought on live roster and entitled to seek employment on attaining 18 years of age. The petitioner himself has disclosed his date of birth as 8.4.1984 and he was less than 12 years of age at the time of death of his mother. The amendment in the rules i.e. NCWA to bring down the age from 15 years to 12 years was made effective from 1.1,2000. This amendment has no application to the case of the petitioner; even if the amendment is applicable the petitioner was ineligible being less than 12 years of age. His case being not governed under the Clause 9.5.0 (iii) of N.C.W.A, was rightly rejected by the respondents. This amendment has no application to the case of the petitioner; even if the amendment is applicable the petitioner was ineligible being less than 12 years of age. His case being not governed under the Clause 9.5.0 (iii) of N.C.W.A, was rightly rejected by the respondents. Since the case of the petitioner is not governed by relevant rules/norms, the ratio of the Judgment in (Commissioner of Public Instruction and Ors. v. K.R. Vishwanath) is fully applicable to the facts of the present case and no appointment can be made dehorse the rules/norms. In view of the fact that the petitioners case is not covered by the rules, we leave this question of constitutional validity of Clause 9.5.0(iii) open to be considered in some other appropriate case. 11. In view of the above circumstances, we do not find any merit in this case, Writ petition accordingly fails and dismissed. No order as to costs.