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2017 DIGILAW 1503 (JHR)

Sumitra Devi v. Coal India Ltd.

2017-08-23

D.N.PATEL, RATNAKER BHENGRA

body2017
ORDER : 1. This Letters Patent Appeal has been preferred by the original petitioner, against the judgment and order passed by the learned Single Judge in W.P. (S) No. 897 of 2015, order dated 30.6.2016 and 2016 (4) JLJR 552 whereby, the learned Single Judge refused to interfere with the decision of the respondents-authorities not to give benefit of Female Voluntary Retirement Scheme, 2000 to the appellant for securing employment of her son and, hence, the original petitioner has preferred the present Letters Patent Appeal. 2. Having heard learned counsels for both sides and looking to the facts and circumstances of the case, it appears that the appellant was working as Class-IV employee as Security Guard with the respondents. The respondents had drafted a scheme in the year 2002 which is annexed as Annexure-1 to the memo of this Letters Patent Appeal, which is known as Special Female Retirement Scheme. The scheme was modified on 16.7.2003 and the said modification is at Annexure-3 to the memo of this Letters Patent Appeal. As per the aforesaid scheme, female employee, who has not completed 50 years (as per the modified scheme, 55 years) of age, may seek voluntarily retirement by written application and if her son is eligible to give employment, he will be given employment with the respondents- Company. 3. It further appears that this scheme was never operated for any of the female employees. Appellant (original petitioner) applied for voluntary retirement on 11th/14th December, 2002. The application was under consideration and the scheme was brought to an end on 8.6.2006 as per the Annexure-L to the counter affidavit filed in this Letters Patent Appeal by the respondents. 4. It further appears that thereafter in the year 2015, another similar scheme has been floated for the female employees, under which no application was preferred by the appellant. Thereafter, this appellant preferred a writ petition being W.P. (S) No. 897 of 2015 which was dismissed by the learned Single Judge on 30.6.2016 mainly on the ground that her application is of the year 2002 and the writ petition has been preferred in the year 2015. On 1.7.2016, as stated in the last paragraph of the aforesaid decision of the learned Single Judge, this appellant reached the age of superannuation. 5. On 1.7.2016, as stated in the last paragraph of the aforesaid decision of the learned Single Judge, this appellant reached the age of superannuation. 5. Being aggrieved and feeling dissatisfied with by the judgment and order delivered by the learned Single Judge in W.P. (S) No. 897 of 2015 dated 30.6.2016, the original petitioner has preferred the present Letters Patent Appeal. 6. Having heard learned counsels for both sides and looking to the facts and circumstances of the case, it appears that scheme, which was floated in the year 2002 and modified in the year 2003, lived a very short life for some times and ended without there being any implementation of the same for any of the female employee. Management thought it fit not to operate the scheme and not a single female employee got voluntary retirement nor their legal heir-son, was given employment as envisaged by the said scheme. Under such type of scheme, an application was preferred by the appellant on 11th/14th December, 2002 for voluntary retirement, so that automatically her son can be employed under the scheme of the year 2002. 7. Much has been argued out by the counsel for the appellant that when the application was preferred, scheme of the year 2002 was in force, which was later on modified on 16.7.2003 and ultimately on 8.6.2006, the scheme was withdrawn by the respondents and, hence, the son of the appellant should have been given employment. This contention is not accepted by this Court mainly for the following reasons:- (a) There is no legal right vested into this appellant to secure the employment of her son in advance. (b) The scheme of the year 2002 is nothing, but, an extra charity shown by the respondents. Extra charity, exemption, concession or extra liberty can be enjoyed only at the volition of the employer, there cannot be any right vested into the employee to get such type of concessional treatment. Such type of concessional treatment cannot be a part and parcel of the service condition. At the highest, extra charity is not shown by the respondents to this appellant. (c) The scheme, which is floated in the year 2002 and which was slightly modified on 16.7.2003, was never made operational. Not a single female employee was allowed to resign, nor her male legal heir was ever given any employment. At the highest, extra charity is not shown by the respondents to this appellant. (c) The scheme, which is floated in the year 2002 and which was slightly modified on 16.7.2003, was never made operational. Not a single female employee was allowed to resign, nor her male legal heir was ever given any employment. (d) Later on the Management has withdrawn scheme on 8.6.2006 as per the Annexure-L to the counter affidavit filed by the respondents in this Letters Patent Appeal. 8. Much has been argued out by the learned counsel for the appellant that in the year 2015, again a similar scheme has been floated for female workers and under this scheme also, son of this appellant should be appointed by the respondents in place of this appellant. This contention is also not accepted by this Court, mainly for the reason that there cannot any Relay Fast type of employment which is retained when one is getting voluntary retirement and another will get the employment, which may tantamount to handing over the baton. Such type of scheme is, in fact, wholly violative of the Constitutional provisions. The public at large must be given a chance to get public employment, otherwise the employment will also be given to female employees of the respondents in inheritance. Public employment cannot be given in inheritance. Such type of practice should be brought to an end forthwith by those who are managing affairs of the Public Sector Undertakings. Moreover, under the new Scheme of the year 2015, no such application was ever preferred by this appellant and, hence, no question, whatsoever, arises either to grant or reject such type of prayer by this appellant. Even otherwise also, this appellant has already retired from service from July, 2016. Hence also, her son cannot be given employment as a matter of right. Moreover, the scheme of the year 2015 also lived a very short life. 9. Counsel for the respondents-Public Sector undertaking, submitted that the scheme of the year 2015 lived a very short life of six months only and the same has been acted upon also. 10. It appears that this is a very dangerous procedure followed by the respondents. Such type of scheme for 4, 5 or 6 months brought in force, results into dissatisfaction amongst the employees of the respondents, as if the same has been brought for few selected persons only. 10. It appears that this is a very dangerous procedure followed by the respondents. Such type of scheme for 4, 5 or 6 months brought in force, results into dissatisfaction amongst the employees of the respondents, as if the same has been brought for few selected persons only. Initially, in the year 2002, such scheme was brought and later on withdrawn on 8.6.2006. We are unable to understand why such type of scheme has been re-floated. It appears that there is no consistency of thought with the Directors of the respondents- Company. Sometimes they are too much charitable and sometimes they are strict. By virtue of this type of zig-zag thoughts by Directors of the respondents-Company, few selected employees are getting benefits and others have to file petitions and Letters Patent Appeals. In fact, the respondents-authorities are increasing the work of this Court. Those who are Public Sector Undertakings, they are the State within the meaning of Article 12 of the Constitution of India. There cannot be such type of grant of public employment to the legal heirs of the employees. The Directors of Eastern Coalfields Limited will take note of this matter, so that, in future also no such type of scheme is floated for 3, 4, 5 or 6 months and thereby "few favourable" or "few fortunates" will get the benefit and rest of them will have to come to the Courts. There cannot be accommodative schemes. 11. It has been held by Hon'ble Supreme Court in the case of Yogender Pal Singh vs. Union of India, (1987) 1 SCC 631 in paragraphs-17 and 18 as under:- "17. While it may be permissible to appoint a person who is the son of a police officer who dies in service or who is incapacitated while rendering service in the Police Department, a provision which confers a preferential right to appointment on the children or wards or other relatives of the police officers either in service or retired merely because they happen to be the children or wards or other relatives of such police officers would be contrary to Article 16 of the Constitution. Opportunity to get into public service should be extended to all the citizens equally and should not be confined to any extent to the descendants or relatives of a person already in the service of the State or who has retired from the service. Opportunity to get into public service should be extended to all the citizens equally and should not be confined to any extent to the descendants or relatives of a person already in the service of the State or who has retired from the service. In Gazula Dasaratha Rama Rao vs. State of A.P. the question relating to the constitutional validity of Section 6(1) of the Madras Hereditary Village Offices Act, 1895 (3 of 1895) came up for consideration before this Court. That section provided that where two or more villages or portions thereof were grouped together or amalgamated so as to form a single new village or where any village was divided into two or more villages all the village officers of the class defined in Section 3, clause (1) of that Act in the villages or portions of the villages or village amalgamated or divided as aforesaid would cease to exist and the new offices which were created for the new village or villages should be filled up by the Collector by selecting the persons whom he considered best qualified from among the families of the last holders of the offices which had been abolished. This Court held that the said provision which required the Collector to fill up the said new offices by selecting persons from among the families of the last holders of the offices was opposed to Article 16 of the Constitution. The court observed in that connection at pp. 940-941 and 946-947 thus: "Article 14 enshrines the fundamental right of equality before the law or the equal protection of the laws within the territory of India. It is available to all, irrespective of whether the person claiming it is a citizen or not. Article 15 prohibits discrimination on some special grounds-religion, race, caste, sex, place of birth or any of them. It is available to citizens only but is not restricted to any employment or office under the State. Article 16 clause (1) guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State and clause (2) prohibits discrimination on certain grounds in respect of any such employment or appointment. It would thus appear that Article 14 guarantees the general right of equality; Articles 15 and 16 at instances of the same right in favour of citizens in some special circumstances. It would thus appear that Article 14 guarantees the general right of equality; Articles 15 and 16 at instances of the same right in favour of citizens in some special circumstances. Article 15 is more general than Article 16, the latter being confined to matters relating to employment or appointment to any office under the State. It is also worthy of note that Article 15 does not mention descent as one of the prohibited grounds of discrimination whereas Article 16 does. We do not see any reason why the full ambit of the fundamental right guaranteed by Article 16 in the matter of employment or appointment to any office under the State should be cut down by a reference to the provisions in Part-XIV of the Constitution which relate to Services or to provisions in the earlier Constitution Acts relating to the same subject...... (pp. 940-941). There can be no doubt that Section 6(1) of the Act does embody a principle of discrimination on the ground of descend only. It says that in choosing the persons to fill the new offices, the Collector shall select the persons whom he may consider the best qualified from among the families of the last holders of the offices which have been abolished. This, in our opinion, is discrimination on the ground of descent only and is in contravention of Article 16(2) of the Constitution." (pp. 946-947) (Emphasis in original) 18. We are of opinion that the claim made by the appellants for the relaxation of the Rules in their cases only because they happen to be the wards or children or relatives of the police officers has got to be negatived since their claim is based on descent only and others will thereby be discriminated against as they do not happen to be the sons of police officers. Any preference shown in the matter of public employment on the grounds of descent only has to be declared as unconstitutional. The appellants have not shown that they were otherwise eligible to be recruited as Constables in the absence of the order of relaxation on which they relied. Hence they cannot succeed." (Emphasis supplied) 12. It has further been held by Hon'ble Supreme Court in the case of V. Sivamurthy vs. State of A.P. (2008) 13 SCC 730 , in paragraph 9 as under:- "9. Hence they cannot succeed." (Emphasis supplied) 12. It has further been held by Hon'ble Supreme Court in the case of V. Sivamurthy vs. State of A.P. (2008) 13 SCC 730 , in paragraph 9 as under:- "9. Article 16 of the Constitution bars discrimination in employment on the ground only of descent. If the service rules or any scheme of the Government provides that whenever a Government servant retires from service, one of his dependants should be given employment in his place or provides that the children of Government servants will have preference in employment that would squarely fly in the face of prohibition on the ground of descent. Employment should not be hereditary or by succession. But where the policy provides for compassionate appointment in the case of an employee who dies in harness or an employee who is medically invalidated, such a provision is based on a classification which is not only on the ground of descent. The classification is based on another condition in addition to descent, that is death of the employee in harness, or medical invalidation of the employee while in service." (Emphasis supplied) 13. It has also been held by Hon'ble Supreme Court in the case of Surender Paswan vs. State of Bihar, (2010) 6 SCC 680 , in paragraphs 2 and 3 as under: "2. In the post-constitutional setup, there was a gradual change in the village administration and several lifetime or hereditary or semi-hereditary appointments gave way to regular public service with appointments based on equal opportunity. 3. This Court in Yogender Pal Singh vs. Union of India held that an opportunity to get into public service should be extended to all citizens equally that any preference shown in the matter of public employment on the ground of descent alone was unconstitutional and that any provision which conferred a preferential right to appointment on the descendents or other relatives of persons either in service or persons who retired from service merely because they happened to be the children or wards of such employees, would be contrary to Article 16 of the Constitution." (Emphasis supplied) 14. Be that as it may, the fact remains that this appellant has preferred writ application after 2002 first time in the year 2015. Be that as it may, the fact remains that this appellant has preferred writ application after 2002 first time in the year 2015. Moreover, the scheme of the year 2002 was never made operative at all, for any of the employees and now for the new scheme of the year 2015, whose life was also like an amoeba-only six months, there was no application preferred by this appellant and under the short-lived scheme of the year 2015 also, this appellant cannot get any benefit. Hence, there is no substance in this Letters Patent Appeal and no error has been committed by the learned Single Judge while deciding the writ petition being W.P. (S) No. 897 of 2015 order dated 30.6.2016. We see no reason to take any other view than what is taken by the learned Single Judge. Hence, there is no substance in this Letters Patent Appeal and the same is, hereby, dismissed. 15. I.A. No. 5662 of 2016 has been filed for accepting counter affidavit in this Letters Patent Appeal. Looking to the facts and circumstances of the case, the same is allowed.