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Jharkhand High Court · body

2011 DIGILAW 287 (JHR)

Jamni Devi v. Central Coalfield Limited

2011-03-30

J.C.S.RAWAT

body2011
Order This petition has been filed by the petitioner for seeking relief of Mandamus directing the respondents to provide employment to son-in-law of the petitioner namely Ganesh Mahto on compassionate ground as per provisions of N.C.W.A.-5. 2. In nutshell, the case of the petitioner is that the husband of the petitioner was an employee of the respondents' company working as Cat. -II Mazdoor in Rajrappa. The husband of the petitioner namely Madaram Mahto died-in-harness on 16.1.2000. She further stated in her petition that she had no son. From their wedlock three daughters were born and they are namely Sunita Devi, Binita Devi and Karmi Devi and all the daughters are married. The petitioner has• also alleged that Ganesh Mahto, husband of Sunita Devi, who is the son-in-law of the petitioner had applied for the compassionate appointment in 2001. It is alleged that the petitioner has attained the age of 51 years so 3he cannot get the employment and the petitioner has no son, so she had applied for his son-in-law under N.C.W.A.-5 for compassionate appointment. The said application was rejected by the authorities on the ground of limitation. The said order was challenged before this Court and this Court while considering the case of the petitioner directed the respondents to reconsider the application of the petitioner in accordance with law. It was further held that the impugned order rejecting the application on the ground of limitation only was not justified. Thereafter, the contempt petition was also moved when they did not comply with the order again and the petitioner preferred this Writ Petition for seeking the Mandamus to provide the employment to the petitioner. Pursuant to the order of the Court, the application of the petitioner was again disposed of indicating that the case of the petitioner's son-in-law was examined at various level and offer monetary compensation to Smt. Jamni Devi wife of the deceased employee who is direct dependent of the deceased employee and whose name is appearing in service records of ex-service employee. Thus, in other words, the employment was denied to the son-in-law of the petitioner. 3. Thus, in other words, the employment was denied to the son-in-law of the petitioner. 3. The said Writ Petition has been contested by the respondents and the respondents has stated that the provisions of Paras-9.3.2 and 9.3.3 of NCWA-5, wherein the wife/husband, married daughters, son and legally adopted son are eligible for consideration for compassionate appointment on the death of the employee only in cases where no such direct dependents are available for employment, younger brother, widow daughter-in-law or son-in-law are to be considered for employment provided that they reside with the deceased and are almost wholly dependent on the earning of the deceased. In the case in hand, the petitioner is alive, hence the petitioner's son-in-law is not eligible for consideration for the compassionate appointment. The petitioner's son-in-law Ganesh Mahto was never residing with the deceased nor he was dependent on the deceased income and he is not entitled to get the employment on the compassionate ground. 4. I have heard learned counsel for the parties and perused the record. Learned counsel for the petitioner contended that the petitioner's case was earlier considered and it was rejected on the ground that the application was time barred and the said order was challenged before the High Court and the said order was quashed by this Court in Writ Petition. The application of the petitioner was found to be well within time and the case of the petitioner was directed to be reconsidered and again they reconsidered the case. The respondents have offered the monetary compensation to the widow instead of providing the employment to her son-in-law on the ground that he is not the direct dependent. 5. Learned counsel for the respondents refuted the contention and contended that the petitioner's son-in-law is not entitled under Clause 9.3.3. of NCWA as the petitioner is alive and she can get either the employment or the monetary compensation as provided in para (ii) of Clause 9.5.0. 6. The moot question arises for consideration is whether the son-in-law, in presence of the deceased widowed wife, can get the employment on compassionate ground in the facts and circumstances of this case. It is not disputed that the petitioner is widowed wife of the deceased and she has only three married daughters. It is also admitted that there is no son of her nor any married daughters are residing alongwith the petitioner. It is not disputed that the petitioner is widowed wife of the deceased and she has only three married daughters. It is also admitted that there is no son of her nor any married daughters are residing alongwith the petitioner. Now, I have to examine the provisions of 9.3.3 of NCWA provides as under: "9.3.3. the Dependent for this purpose means the wife/husband as the case may be, unmarried daughter, son and legally adopted son. If no such direct dependent is available for employment, brother, widowed daughter/widowed daughter-in-law or son-in-law residing with the deceased and almost wholly Dependant on the earnings of the deceased may be considered to be the Dependant of the deceased." From the above quoted provision, it is clear that:- (i) dependent means, the wife/husband as the case may be or unmarried daughter or son and legally adopted son, can get employment in first preference, (ii) if no such, as indicated in Sr. (i), direct dependent is available for employment, brother widowed daughter/ widowed daughter-in-law or son-in-law residing can get employment in the second preference, (iii) the third ingredient which is to be established by the petitioner is that the second preferential dependents had been residing with the deceased and he was wholly dependent on the earning of the deceased. 7. Now, we have to examine the pleadings that whether the ingredients as enumerated in Clause 9.3.3 are fulfilled or not. In the instant case, first preferential dependent is available and she is the petitioner before this Court. She had not applied for her employment and she has specifically stated in para-5 of her petition that the petitioner has attained the age of 51 years so she cannot get the employment, so she is applying for her son-in-law. The deceased has furnished an affidavit (Annexure-4) to the Company where he has sought the employment, when he seeks voluntary retirement, for his eldest son-in-law who resides with him and he has said that he can properly maintain him. Apart from that, no other document was demonstrated to him by 'which it is stated that other conditions made in Clause 9.3.3 is fulfilled. It is not written in the affidavit as well as in the pleadings that the son-in-law was almost wholly dependent on the earning of the deceased. Apart from that, no other document was demonstrated to him by 'which it is stated that other conditions made in Clause 9.3.3 is fulfilled. It is not written in the affidavit as well as in the pleadings that the son-in-law was almost wholly dependent on the earning of the deceased. Apart from that, in this case, the lady has not sought the employment and the lady is the first preferential dependent, so the son-in-law cannot get the said compassionate employment in view of Clause 9.3.3. 8. Now, the N.C.W.A. 9.5.0(i) and (ii) clearly provides as under: "(i) In case of death due to mine accident, the female Dependant would have the option to either accept the monetary compensation of Rs. 4,000/- per month or employment. irrespective of her age. (ii) In case of death/total permanent disablement due to cause other than mine accident and medical unfitness under Clause 9.4.0, if the female dependent is below the age of 45 years she will have the option either to accept the monetary compensation of Rs.3,000/- per month or employment. In case the female dependent is above 45 years of age she will be entitled only to monetary compensation and not to employment." 9. In the present case, it is admitted to the parties that the deceased died due to illness. Thus, it is not a case of mine accident. para-(i) of Clause 9.5.0 would not attract in this case. Para-(ii) first part would not attract in the present case as it is provided in the part of the para that if the female dependent is below the age of 45 years, she will have the option either to accept the monetary compensation of Rs. 3,000/- per month or employment. Thus, the petitioner, the wife of the deceased has attained the age of 51 years as she has alleged in Para-5 of the Writ Petition, so her case is not covered as para-(ii) of Clause 9.5.0 of N.C.W.A. Her case would be covered in Para-(ii) second part where it is provided that in case, female dependent is above 45 of age will be entitled only to monetary compensation and not to employment. In the instant case, she is above 51 years and she is entitled only for monetary compensation. 10. It is also settled position of law that the employment under compassionate ground is only an employment on the humanitarian ground. In the instant case, she is above 51 years and she is entitled only for monetary compensation. 10. It is also settled position of law that the employment under compassionate ground is only an employment on the humanitarian ground. The general principle is that everybody should be regarded through proper process of law as provided under the Constitution. Everybody should have a fair chance to compete the said posts in public services but to tide over the situation just occurred all of a sudden to a family, the law has carved out an exception to the above principle. The said principle is only limited to the guidelines or the Rules framed by the competent authority. The Court should not overlap its jurisdiction going beyond the Rules and the Court should adhere the provisions of Rules and should interprate (sic-interpret?) with the true spirits that the Constitution provides that fair competition be conducted among eligible candidates, so the person who is entitled to get the employment on the compassionate ground are not allowed by the courts. 11. In view of the above, I do not find any merit in the writ petition. This writ petition is dismissed accordingly.