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2018 DIGILAW 1541 (JHR)

Budhu Oraon v. Central Coal Fields Limited

2018-07-12

SHREE CHANDRASHEKHAR

body2018
JUDGMENT Shree Chandrashekhar, J. - Aggrieved of order dated 11.02.2009 by which his claim for compassionate appointment on death of his mother has been declined, the petitioner has approached this Court. 2. Briefly stated, on death of his mother namely, Chaiti Devi, who was employed as a piece-rated worker at the Kuju Siding Area under the respondent-M/s Central Coalfields Limited, on 27.09.1998 in harness, the petitioner submitted an application on 16.12.1998 for appointment under Clause 9.3.2 of the National Coal Wage Agreement (NCWA). At that time he was aged about 14 years. On attaining majority he submitted an application for compassionate appointment on 28.05.2004. This application was rejected by the respondent-authority primarily on the ground that application for compassionate appointment should have been submitted within six months from the date of death of his mother. Aggrieved, he came to this Court in W.P.(S) No. 670 of 2006. The writ petition was allowed vide order dated 02.05.2008, holding that the scheme under NCWA-VI does not stipulate submission of an application for compassionate appointment by a minor within six months. The matter was remitted back to the respondent-authority for taking a decision afresh in the matter. Claim of the petitioner for compassionate appointment is however again been rejected; this time on the ground that at the relevant time, that is, when his mother died in harness on 27.09.1998 he was below the age of 15 years which was the minimum age for keeping a male dependent on live-roster. At that time NCWA-VI was in operation. 3. Plea urged by the petitioner is that finality of litigation is the public policy and if the respondent-authority is permitted to raise new plea in subsequent proceedings it would become an unending process and, thus, it would not be in public interest. 4. It is not disputed that in the previous proceeding in which the rejection order dated 03.10.2005 was impugned by the petitioner in W.P.(S) No. 670 of 2006 the respondents did not take the plea that he was not eligible to be kept on live-roster on death of his mother on 27.09.1998 and therefore he was not entitled to seek compassionate appointment. The Writ Court''s order is on merits of the matter and it was not a simple case of remand. The Writ Court''s order is on merits of the matter and it was not a simple case of remand. Decision of this Court in " Lakhan Kumar vs. Central Coalfields Limited and Others , (2005) 3 JLJR 190 " was relied by the petitioner. On remand, claim of the petitioner could have been rejected only on the ground that as on the date of decision, that is, the subsequent consideration he does not fulfill any of the essential conditions for appointment and not on a technical plea which was not raised in the previous proceeding, that at the time of death of his mother he was below the minimum age for keeping him on live-roster. Moreover, on the date when he submitted another application for compassionate appointment on 28.05.2004, he had attained the minimum age for appointment and also on the date when his claim was rejected by the respondent-authority, that is, on 03.10.2005. 5. The learned counsel for the petitioner has relied on a decision in " Syed Khadim Hussain vs. State of Bihar & Ors. , (2006) 9 SCC 195 " , a case in which the date on which the claim for appointment on compassionate ground was decided by the respondent-authority, the applicant had attained the age of majority. In the said case the Supreme Court has held that the claim for compassionate appointment could not have been rejected, for the applicant had attained the age of majority on the date of consideration of his claim. Another plea raised by the petitioner is of discrimination. It is submitted that in "Lakhan Kumar" case the said Lakhan Kumar whose father died on 23.11.1997 was also below the age of 15 years on the date of death of his father still the respondent-authority has chosen to offer appointment to him on compassionate ground. 6. The applications submitted by the petitioner on 16.12.1998 and 28.05.2004 have not been denied by the respondents, rather claim for compassionate appointment through application dated 28.05.2004 has been declined by them vide order dated 03.10.2005. There is no explanation by the respondents how the case of said "Lakhan Kumar" is different from the case pleaded by the petitioner. In the supplementary counter-affidavit dated 02.07.2018, the respondents admit that the petitioner falls under the category of family member. There is no explanation by the respondents how the case of said "Lakhan Kumar" is different from the case pleaded by the petitioner. In the supplementary counter-affidavit dated 02.07.2018, the respondents admit that the petitioner falls under the category of family member. No doubt, the scheme for compassionate appointment should be implemented within the framework of the scheme but then the respondent-employer must display fairness in action while adjudicating the claim for compassionate appointment of a similarly situated dependent of another deceased employee. May be the petitioner had not attained the age of 15 years at the time of death of his mother, rejection of his claim for compassionate appointment after the matter was remitted to the respondent-authority on the ground that he was not eligible for keeping him on live-roster cannot be countenanced in law. There is no answer by the respondents, why the aforesaid plea was not raised by them in the previous proceeding. The respondents have also failed to distinguish case of the petitioner from the said Lakhan Kumar. His was not a case of any mistake committed by the respondents. His claim was contested and only after the High Court issued direction the said Lakhan Kumar was granted appointment. 7. In view of the aforesaid facts and for the reasons indicated herein above, the impugned order dated 11.02.2009 is quashed. The respondent no. 4 shall issue notice to the petitioner for ascertaining his eligibility in terms of educational qualification and medical fitness, if required, for his appointment, within six weeks. 8. The writ petition is allowed, in the aforesaid terms.