Research › Search › Judgment

Calcutta High Court · body

2008 DIGILAW 217 (CAL)

Basudev Singh v. Eastern Coalfields Ltd

2008-02-20

S.P.TALUKDAR, SURINDER SINGH

body2008
Judgment :- (1.) THIS appeal has been filed challenging the Judgment and order passed by the learned single Judge dated 23rd August, 2004 whereby the writ petition filed by the petitioner claiming appointment on compensatory grounds has been dismissed. The admitted facts are that the father of the petitioner retired from service of the Eastern Coalfields Ltd. on 25th March, 1983. During his lifetime he married twice and he contracted the second marriage during the lifetime of the first wife. The petitioner/appellant is the son of the second wife. After retirement, the father of the petitioner died. During his lifetime the appellant had nominated his second wife as the legal heir. For the aforesaid purpose the mother of the appellant was medically examined and found to be fit for employment in the year 1983. She was, therefore, selected for appointment. However, no letter of appointment was actually issued. The father of the appellant filed a writ petition in the year 1998 being W. P. No. 2142 (W) of 1998 seeking appointment on compassionate grounds for the mother of the appellant. At this stage, It is, however, emphatically stated by the learned counsal for the appellant that the writ petition had actually been filed claiming appointment on compensatory ground in terms of the contract entered into between the employer and the employees. (2.) BE that as it may, it is irrelevant for deciding the controversy raised in the writ petition. We may now notice the other relevant facts. In the meantime, the first wife of the deceased employee had also passed away on 19th October, 1998. On 1st March, 1999 the writ petition being W. P. No. 2142 (W) of 1998 was also dismissed on the ground that the status of the mother of the appellant being the legal heir of the deceased employee was disputed, hence the second wife, i. e, the mother of the appellant cannot be appointed on compensatory grounds. We may notice here the observations made by the learned single Judge whilst dismissing the aforesaid writ petition which have been reproduced in the writ petition: "having considered the submissions made on behalf of the respective parties, I am inclined to accept Mrs. Mitras submission that the status of Smt. Anita Singh being in dispute the question of her appointment on compassionate ground in place of the petitioner cannot arise". Mitras submission that the status of Smt. Anita Singh being in dispute the question of her appointment on compassionate ground in place of the petitioner cannot arise". (3.) WHILST dismissing the writ petition, a further direction had also been issued to the respondents to consider for payment of retiral benefits of the deceased employee to the legal heir and on the amount being received, the Regal heir was directed to vacate the quarter simultaneously. Thereafter, the appellant filed a writ petition being W. P. No. 5251 (W) of 2003 challenging the denial of employment to him being the dependent son of the deceased employee. This writ petition was also disposed of by order dated 30th September, 2003 with a direction, to the respondent-authorities to consider the claim of the appellant for employment on compensatory ground in place of his late father. Pursuant to the directions given by this Court, the appellant was duly called for a personal hearing which was fixed on 17th March, 2004. The appellant appeared before the Personal Manager, Pandabeswar Colliery with related papers, documents in support of his claim. However, by letter dated 19/20th march, 2004 the claim of the appellant has again been rejected. The appellant, therefore, filed the present writ petition impugning the aforesaid decision of the employer. By Judgment and order dated 23rd august, 2004 the writ petition has been dismissed. Hence, the present letters patent appeal. (4.) WE have heard the learned counsel for the parties at length. Learned counsel for the appellant has submitted that the learned single judge has failed to take into consideration the relevant facts. It is also submitted that the appellant is not claiming appointment on compassionate grounds but in fact is claiming the appointment on the basis of a contractual obligation based on an agreement between the deceased employee and the employer. Learned counsel further submitted that even though the mother of the appellant may not have been eligible for appointment, the claim of the appellant cannot be rejected as even the illegitimate son would be entitled to claim the benefit which would accrue as a result of the service of the father of the appellant with the respondent. It is, therefore, submitted that the learned single Judge has arbitrarily rejected the claim of the appellant. It is, therefore, submitted that the learned single Judge has arbitrarily rejected the claim of the appellant. On the other hand, the learned counsel appearing for the respondent has submitted that the claim of the appellant has been rejected as no legal right has accrued in favour of the appellant. Learned counsel submitted that the claim of the appellant has been rejected in accordance with law laid down by the supreme Court in the case of State of Manipur v. Md. Rajaodin, reported in 2003 III CLR 963. Learned counsel further submitted that during the lifetime of the deceased employee a claim had been made for the appointment on compassionate ground in favour of the mother of the appellant. This writ petition has been dismissed by the learned single judge. No appeal was filed against the aforesaid Judgment of the learned single Judge. After the claim of the mother had been rejected, the appellant has now woken up and made the claim for appointment on compensatory grounds. (5.) WE have considered the submissions made by the learned counsel for the parties. We are of the considered opinion that even if it is accepted that the appellant is the legal heir of the deceased employee, still no relief can be granted to the appellant. First of all, the appropriate authority of the respondents considered the claim of the petitioner pursuant to the directions issued by this Court. It has been clearly observed that the appellant appeared for personal hearing before the said Personal manager. It has been noticed in the impugned order that the contentions made by the appellant in the writ petition were contrary to the statements made during the hearing. Even then the entire matte- has been heard on merit. It has been noticed that in the writ petition it had been averred that in spite of several representation and verbal assurances of the management, appointment had not been offered to the appellant in place of his father. However, during the personal hearing, he had stated that the employment may be given to his mother Smt. Anita Singh, second wife of the deceased employee. It is also observed in the aforesaid order that the claim of the mother of the appellant could not be considered in view of the order passed by the learned single Judge in W. P. No. 2142 (W) of 1998. It is also observed in the aforesaid order that the claim of the mother of the appellant could not be considered in view of the order passed by the learned single Judge in W. P. No. 2142 (W) of 1998. Whilst dismissing the aforesaid writ petition it had been categorically held that the claim of the mother of the appellant could not be considered as her legal status as a wife had been disputed. Therefore, it has been held that the question of offering any employment to the appellant on compensatory grounds does not arise. Thereafter, when the matter came up before the learned single Judge again it was argued that the appellant is entitled to be considered for appointment on compensatory grounds. The learned single Judge again noticed the entire chequered history of the claim made by the appellant. It had been categorically held that the appellant had no legal right to be considered as during the personal hearing before the competent authority he had himself made the prayer that appointinent might be given to his mother. It has also been noticed that the father of the appellant who retired in June, 1983 died on 27th March, 1999. During his lifetime he had made an unsuccessful attempt to secure appointment on compassionate ground for his second wife. At no point of time any effort was made to secure appointment on compassionate grounds for the appellant. The learned single Judge has also observed that consideration of the prayer for compassionate appointment becomes absolutely out of context once there is delay in making the prayer for considering it. The prayer was made by the appellant, for appointment on compensatory grounds only in the year 2003. Therefore, the learned single Judge has held that no legal right of the appellant has been infringed. (6.) WE are of the considered opinion that neither the order dated 19th march, 2004 passed by the respondent-authorities which was impugned in the writ petition or the Judgment of the learned single Judge can be said to be either erroneous or without jurisdiction. Admittedly the father of the petitioner passed away in the year 1999. The claim of the mother of the petitioner for appointment on compensatory or compassionate grounds had been rejected by the learned single Judge in W. P. 2142 (W)of 1998. Admittedly the father of the petitioner passed away in the year 1999. The claim of the mother of the petitioner for appointment on compensatory or compassionate grounds had been rejected by the learned single Judge in W. P. 2142 (W)of 1998. The law with regard to the appointment on the basis of the policies of the Government, Statutory Authorities or Government companies for the dependents of the deceased employee has been laid down in the Judgment of the Supreme Court in the case of Umesh Kumar nagpalv. State of Haryana and Ors. , reported in (1994)4 SCC 138 . In the aforesaid Judgment it has been categorically held as follows: "2. The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. 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. " 6. 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. " 6. For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period of which must be specified in the rules. The consideration of such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over." (7.) THE law laid down in the aforesaid Judgment of the Supreme Court has been reiterated in the case of Md. Rajaodin (supra). In this Judgment again it has been held that the purpose of providing employment to the dependent of a government servant dying in harness in preference to anybody else is to mitigate the hardship caused to the family of the deceased on account of unexpected death while in service. (8.) IN the present case as noticed above, the father of the petitioner retired in the year 1983. He lived for 15 long years before he passed away. During his lifetime he attempted to secure employment only for the mother of the appellant and not for appellant himself. The claim of the mother had been rejected by the learned single Judge in W. P. 2142 (W)of 1998. No appeal was filed against the aforesaid Judgment. At least it has not been brought to the notice of the Court as to whether the aforesaid Judgment was subsequently set aside or modified. The appellant cannot be permitted now lay claim to the same job after a lapse of such a long time. Such a state claim for appointment on compassionate grounds, in our opinion has rightly rejected by the employer as well as the learned single Judge. (9.) FOR the reasons stated above, we find no merit in the appeal. The appeal is accordingly dismissed. (10.) AFTER the Judgment was delivered learned counsel for the appellant prayed for stay of operation of this Judgment. (9.) FOR the reasons stated above, we find no merit in the appeal. The appeal is accordingly dismissed. (10.) AFTER the Judgment was delivered learned counsel for the appellant prayed for stay of operation of this Judgment. We fail to see what stay can be granted in the facts of this case. The prayer is considered and rejected. Xerox certified copy of this order, if applied for, be given to the learned counsel for the parties. Appeal dismissed.