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2012 DIGILAW 956 (CAL)

Sarban Bhuian v. Coal India

2012-10-17

SAMBUDDHA CHAKRABARTI

body2012
Judgment : The father of the writ petitioner Late Baldeo Bhuian was an employee under the Eastern Coalfield Limited. He died on January 15, 1988 while he was still in service. At that time the petitioner was a minor and after attaining majority he made an application before the concerned authority for employment as per the National Coal Wage Agreement (for short, ‘the Agreement’). On September 3, 2008 the Senior Personnel Officer sent a letter to the petitioner and asked him to correct some documents and formalities which were done. On December 26, 2008 the petitioner appeared before the Medical Examination Board where his age was assessed as between 30 and 35 years and the respondent authority by a letter dated February 22/25, 2010 rejected the prayer of the petitioner on the ground that on the date of the death of his father his age was 11 years 6 months and 19 days and he did not come under the zone of consideration to be offered employment under the provisions of the Agreement. The petitioner has challenged this communication on the ground that as per Clause 9:5:0 of the Agreement VI if on the date of the death of an employee his dependant 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 qualification when he attains the age of 18 years. The petitioner claims that he was also entitled to be kept in the Live Roster and is entitled to get the employment after he had attained majority. The petitioner has, therefore, inter alia prayed for a Writ in the nature of Mandamus directing the respondents to cancel or set aside the impugned order dated February 22/25, 2010 and a Writ in the nature of Mandamus directing the respondents to provide employment to him on compassionate ground as per the Agreement. The respondents have contested the application by filing an affidavitin-opposition wherein the allegations made in the writ petition have been denied. The case of the respondents is that the father of the petitioner died on January 15, 1988 leaving behind the petitioner as a dependant son along with three other dependants. The petitioner’s mother claimed employment for her son under the Agreement IV. The case of the respondents is that the father of the petitioner died on January 15, 1988 leaving behind the petitioner as a dependant son along with three other dependants. The petitioner’s mother claimed employment for her son under the Agreement IV. A medical examination was held in December, 2008 and the Board assessed the age of the petitioner between 30 and 35 years on the date of the examination and consequently his age was found to be 11 years and 6 months on the date of the death of his father. Since he was a minor at the time of the death of his father his case did not come under the zone of consideration for employment as per the provisions of the Agreement IV and as such the question of employment was not considered and the petitioner is not entitled to any employment on attaining the age of majority inasmuch as there is no provision in the relevant Agreement to provide employment to a dependant on attaining the age of majority. The respondents specifically mentioned that on the date of the death of the petitioner’s father as well as when his mother had applied for employment Agreement IV was in force and the petitioner is not entitled to claim any benefit under the provisions of other Agreements. Agreement IV contains no provision to keep any minor dependant in the live roster which was a provision introduced subsequently. The respondents prayed for dismissal of the writ petition. The petitioner in his affidavit-in-reply has alleged that on April 15, 1987 the respondents had issued a service record in which his age was recorded as 11 years on that date which made his age on the date of the death of his father 11 years 9 months and 11 days. He had justified his entitlement to compassionate employment on the ground that in Agreement IV no age was mentioned for keeping a dependant in the live roster. The affidavit-in-reply otherwise is a denial of the allegations made by the respondents in their affidavit-in-opposition. He had justified his entitlement to compassionate employment on the ground that in Agreement IV no age was mentioned for keeping a dependant in the live roster. The affidavit-in-reply otherwise is a denial of the allegations made by the respondents in their affidavit-in-opposition. To overcome the problem of his minority the petitioner has very strongly relied on the case of Sujit Kora –Vs.-Coal India Limited and others, reported in 2002(2) CHN 557 wherein it was inter alia held that a right had accrued to the appellant, i.e., the son of the deceased employee, to obtain employment in place of his deceased father in the year 1989 when his father died and because of his tender age he could wait for a reasonable length of time before enforcing that right. The right to obtain employment did not become weaker or evaporate with the passage of years. Cancelling the application of the dependant heir for appointment on the ground that he was 12 years’ old was an error apparent on the face of the record because that was no disqualification for the writ petitioner. Their Lordships further held that the ground of refusing employment as five years had passed after the death of the appellant’s father was not a sustainable one as it did not give any weight to the material fact that to obtain employment the writ petitioner was entitled to wait until he could reach a suitable age for undertaking the work as a minor. The Division Bench held that the appellant in that case was entitled to appointment. Relying on this judgement Mr. Agarwal, the learned Advocate for the petitioner submitted that the writ petitioner in the present case was also a minor and since he could not be employed during his minority his right to get compassionate appointment has not evaporated with the passage of time and as such the decision of the concerned respondent authority rejecting his prayer for employment is liable to be set aside. Mr. Mr. Banerjee, the learned counsel for the respondents, has submitted that the relevant Agreement IV did not make any provision for any live roster as alleged by the petitioner and it was a settled principle of law that the whole purpose of compassionate appointment would be rendered absolutely meaningless if the respondents have to offer an employment to a dependant heir of the deceased employee a number of years after the death of the deceased employee. In support of his contention he has relied on the case of Jagdish Prasad –Vs.-State of Bihar and another, reported in 1996(1) LLJ 1105 wherein the Supreme Court had negatived the contention of the appellant that since when his father died in harness he was a minor and the compassionate circumstances continued to subsist the Court was required to examine whether the appointment should be made on compassionate grounds. The Supreme Court held that the very object of appointment of a dependant of the deceased employee who died in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family. The Court held that if the contention is accepted it would amount to another mode of recruitment of the dependant of a deceased employee which cannot be encouraged de hors the recruitment rules. Mr. Banerjee further relied on a more recent judgement of the Supreme Court in the case of State Bank of India and another –Vs.-Raj Kumar, reported in (2010) 11 SCC 661 wherein it was, inter alia, held in paragraph 9 of the judgement: “9. Normally, the three basic requirements to claim appointment under any scheme for compassionate appointment are: (i) an application by a dependent family member of the deceased employee; (ii) fulfilment of the elegibility criteria prescribed under the scheme, for compassionate appointment; and (iii) availability of posts, for making such appointment. If a scheme provides for automatic appointment to a specified family member, on the death of any employee, without any of the aforesaid requirements, it can be said that the scheme creates a right in favour of the family member for appointment on the date of death of the employee. In such an event the Scheme in force at the time of death would apply.” The petitioner has not mentioned when he made the first application for employment. In such an event the Scheme in force at the time of death would apply.” The petitioner has not mentioned when he made the first application for employment. But the petitioner himself has said that he made the application on attaining his majority which means, the application was made not before about seven years after the death of his father. By then a considerable number of years had passed from the date of the death of his father and by now more than 24 years have elapsed after his father had died. In the case of State of J & K and others –Vs.-Sajad Ahmed Mir, reported in AIR 2006 SC 2743 , application for compassionate appointment was filed four and half years after the death of the father of the applicant. Observing that the family survived for more than five years after the death of the applicant’s father the Supreme Court held: “Normally, an employment in Government or other public sector should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonence with Article 14 of the Constitution. On the basis of competative merit an appointment should be made to public office. This general rule could not be departed except where compelling circumstances demand, such as, death of sole bread earner and livelihood of the family, suffering because of the set back. Once it is proved that in spite of death of bread earner the family surviving and subsistence period is over, there is no necessity to say ‘goodbye’ to normal rule of appointment and to show favour to one at the cost of interest of several others ignoring the mandate of Article 14 of the Constitution. ” In the case of State Bank of India and another –Vs.-Somvir Singh, reported in (2007) 4 SCC 778 the Supreme Court held that appointment on compassionate grounds is an exception curved out to the general rule that recruitment to public services is to be made in a transparent and accountable manner providing opportunity to all eligible persons to compete and participate in the selection process. The claim for compassionate appointment and the right, if any, is traceable only to the scheme, executive instructions, rules etc. framed by the employer in the matter of providing employment on compassionate grounds. The claim for compassionate appointment and the right, if any, is traceable only to the scheme, executive instructions, rules etc. framed by the employer in the matter of providing employment on compassionate grounds. It was further held: “There is no right of whatsoever nature to claim compassionate appointment on any ground other than the one, if any, conferred by the employer by way of scheme or instructions as the case may be.” As such no discretion is left with the authorities to make compassionate appointment de hors the scheme. This principle of law was enunciated in the case of Life Insurance Corporation of India – Vs.-Asha Ramchandra Ambedkar (Mrs.), reported in (1994) 2 SCC 718 wherein it was held that the High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplate such appointments. That such appointments have to be made strictly in accordance with the rules or regulations or administrative instructions governing the field have long been settled. Reference may be made to the case of Umesh Kumar Nagpal –Vs.-State of Hariyana and others, reported in (1994) 4 SC 138 and more recently in the case of State Bank of India and another –Vs.-Rajkumar (Supra), reference to which has already been made. Mr. Banerjee, the learned Advocate for the respondents, has pointed out that since the Agreement IV contains no provision for keeping the applicant waiting for a number of years if the dependant of the deceased employee is a minor his application cannot be considered. The Agreement in vogue on the date of the death of the deceased employee is the Agreement which will govern the field while considering the question of the writ petitioner’s entitlement to compassionate appointment. Anything introduced in any subsequent agreement will not be a relevant consideration for our purpose. Since Agreement IV contains no provision for employment of a minor dependant on his attaining the majority the authorities had rightly turned down his application for employment. In the case of Sujit Kora (Supra) the father of the petitioner also died when he was a minor and at that point of time Agreement IV was in operation. Since Agreement IV contains no provision for employment of a minor dependant on his attaining the majority the authorities had rightly turned down his application for employment. In the case of Sujit Kora (Supra) the father of the petitioner also died when he was a minor and at that point of time Agreement IV was in operation. The Division Bench in that case held that the right to obtain employment did not become weaker with the passage of time and the period of delay of five years was not considered fatal as the petitioner had to wait until he could reach a suitable age for undertaking the work as a minor. But the applicant’s minority at the time of his father’s death was not found to be a factor in favour of considering the application for compassionate appointment after he had attained majority in the case of Jagdish Prasad (Supra). This judgement of the Supreme Court was not considered by the Division Bench of this Court. In the case of Hariyana State Electricity Board and another –Vs.-Hakim Singh, reported in (1997) 8 SCC 85 the Supreme Court reiterated that the object of compassionate appointment was to give succor to the family which has been suddenly plunged into penury due to untimely death of his sole bread earner and should not be taken as opening an alternative mode of recruitment to public employment. This the position of law has been settled by a large number of judgements, both by the Supreme Court as well as different High Courts. In view of the law relating to compassionate appointment being so very specifically laid down by the Supreme Court the petitioner is not entitled to ask for compassionate appointment on the death of his father. The writ petition is dismissed. There shall, however, no order as to costs.