Anupal vs Chairman Cum Manging Director (CMD) And Others

Deepak Khot , J

The petitioner has filed the present petition for the following relief:-

A. That, the said orders as in Annexure P/1, challenged by the Petitioner be quashed by the issuance of writ of certiorari.

B. That, the Respondents be ordered to reconsider the representation of Petitioner afresh within reasonable time for the purpose of compassionate appointment, as from the initial applicable point of time by the issuance of writ of mandamus.

C. That, the respondents be ordered to reconsider the policy framework for the compassionate appointment in the light of constitutional morality and non-discriminatory principles for cases like the instant one by the issuance of writ of mandamus.

D. The, the petitioner he allowed to file additional document to substantiate the facts of this case, as and when prayed by her.

E. Any other relief that this Hon'ble Court may deem just and proper in the facts and circumstances of this case, all in the interest of equity, justice and good conscience.

2 . It is submitted by the learned counsel for the petitioner that the petitioner had applied for compassionate appointment vide applications dated 28.02.2018 (Annexure P/2) and 21.10.2023 (Annexure P/5) due to untimely death of her mother Mula Devi, who died on 07.11.2017.

3 . It is submitted by the learned counsel for the petitioner that the petitioner is an unmarried daughter of the deceased employee of the respondent company, who died in harness. Therefore, as per Clause 9.3.3 of the policy i.e. National Coal Wages Agreement (NCWA), which was in vogue at the time of death of the deceased and made applicable in the present case in hand, deprives the married daughter from consideration for the compassionate appointment. It is submitted that the Full Bench of this Court in W.A. No. 756/2019 - Meenakshi Dubey vs. M.P. Poorva Kshetra Vidyut Vitran Com. Ltd. and others decided on 02.03.2020, in similar circumstances where the married daughters were also deprived of the right to be considered for compassionate appointment by virtue of State's policy, has held that such condition in the policy is violative of Article 14 of the Constitution of India and struck off the condition. On the basis, prayed that the policy of the respondents, which contains the discrimination against the married daughter, deserves to be dealt in the light of the principles laid down by the Division Bench of this Court and accordingly prayed for quashment of the order dated 04.10.2023 (Annexure P/1) by which the respondents have rejected the application of the petitioner for compassionate appointment on the ground that she is a married daughter of the deceased employee.

Per contra, learned counsel for the respondents has submitted that the law laid down by the Full Bench of this Court is not applicable in the present case in hand because the rejection is not only on the ground that the petitioner is married daughter of the deceased employee, but, in fact, in the enquiry, it has been found that she has been married to a person, who is employed in the respondent-department. Thus, on the basis of the settled law that the compassionate appointment is only to the dependents of the deceased employee who has responsibility to maintain other dependents and the financial urgent need has not been found in the case of the petitioner, the claim of the petitioner has been rejected.

The counsel for the respondents has invited attention of this Court towards the enquiry report annexed with documents; which has been conducted in the matter of petitioner for grant of compassionate appointment, wherein the husband of the petitioner has recorded his statement in regard to his marriage with the petitioner. Certain documents i.e. an agreement, which has been executed between the husband of the petitioner and petitioner to record certain terms after their marriage, has also been brought on record. Some police statements have also been filed and made part of the enquiry, wherein the petitioner herself has given statement to the police that she has solemnized marriage with the respondent/employee Arjun Singh. On the basis of above factual matrix, counsel for the respondents submits that it is not the case that the married daughter has been deprived of the consideration on the compassionate ground, but it is a case where the petitioner has been found to be married with a person employed in the respondent/department who is not in financial need. Therefore, she is not dependent on the deceased employee and as per the settled principle of law, petitioner is not in any financial need, which can be catered by way of the compassionate appointment. It is submitted that the compassionate appointment is not a vested right. It is only a consideration by the employer to meet out the financial urgent need of the deceased family, who died in harness.

Learned counsel for the petitioner rebutting the submission made by the learned counsel for the respondents has submitted that the enquiry, which has been conducted by the respondents, is no enquiry in the eyes of law because the document of agreement cannot be relied as for the purpose of marriage no agreement can be executed. It is also submitted that the police statements, which have been filed with the return, are also not believable because, such statements have been given under coercion as there are allegation against the petitioner by her own sisters that she eloped with a person. Thus, prayed that on the basis of such documents, no inference can be drawn that the petitioner has been married to the employee of the respondent company and deserves consideration as an unmarried daughter.

Heard learned counsels for the parties and perused the record.

8 . Though the order-Annexure P/1 dated 04.10.2023 contains the observation that in the NCWA there is no provision of employment for the married daughter, but, as argued by the learned counsel for the respondents that for the purpose of applying the principles laid down by this Court in the case of Meenakshi Dubey (supra), the factual matrix of the case is also to be considered.

It is revealed from the enquiry report dated 20/21.01.2022 that the sisters of the petitioner namely, Smt. Sangeeta Pal and Sarita Pal had made a complaint to the authorities that the petitioner is a married lady and thus, cannot secure employment on compassionate basis after the death of their mother Smt. Mula Devi. Both the sisters have recorded their statements before the authority. In the statements, which are filed alongwith the return on Page No. 20, a question No. 8 has been asked to sister Smt. Sangeeta Pal in regard to the marriage of the petitioner, which has been answered by stating that the petitioner has been married to one Arjun Singh. Similar question has been asked to sister of the petitioner namely, Sarita Pal as question No. 10, the same has been answered by stating that the petitioner has been married to one Arjun Singh. In the enquiry, certain affidavits have also been filed of the complainants, who are sisters of the petitioner, which also state that the petitioner has been married to one Arjun Singh. The concerned Gram Panchayat has also endorsed the fact that the petitioner is a married lady. In addition to the said, the statement of the notary, who executed the agreement between the petitioner and her husband, has also been recorded, who, on the basis of his register of 2019, has stated that such agreement has been notarized after the marriage of the petitioner with one Arjun Singh for recording certain terms between the parties.

It is submitted by the learned counsel for the petitioner that these documents are not reliable because they are incomplete and the affidavits, which have been submitted by the complainants, have been later on withdrawn by the complainants. Thus, no inference, on the basis of such complaint, can be drawn. However, the fact remains that the enquiry, which has been conducted on the complaint, as revealed by number of documents, the petitioner has solemnized the marriage with one Arjun Singh, which according to the respondents, is the employee of the respondent company. It is trite law that the agreement to perform marriage is nullity, however, the document of agreement, which is filed, is not an agreement of marriage, but, in fact, it is a document to record certain terms between the parties after the marriage because, in the preamble it is mentioned that the marriage has been solemnized on 25.08.2019 between the petitioner and Arjun Singh. A missing report was lodged against the petitioner, wherein after recovery of the petitioner, she has recorded her statement before the police that she has eloped with Arjun Singh with her own volition and solemnized marriage on 25.08.2019. Even if the fact of withdrawal of the affidavits submitted alongwith the complaints are not taken into consideration then also it is seen from the record that in the enquiry the sisters have recorded the statements that the petitioner is a married lady and she has solemnized marriage with one Arjun Singh, who, according to the respondents, is the employee of the respondent company. Thus, considering the documents of the enquiry and the enquiry report, it has come out very clearly that the petitioner is a married lady. The petitioner has solemnized the marriage with one Arjun Singh, who is the employee of the respondent company.

Now, the question whether the petitioner, who is a married lady, can be deprived of consideration of her application for compassionate appointment only on the ground that she being a married lady is not entitled to be employed on compassionate basis, it is submitted by the learned counsel for the petitioner that such condition is discriminatory and hit by Article 14 of the Constitution of India, as already held by this Court in the case of Meenakshi Dubey (supra) cannot be made basis of the decision.

When the facts of the present case are tested on the anvil of the law laid down by this Court in the case of Meenakshi Dubey (supra), it is found by this Court that it is correct that a married daughter cannot be deprived of consideration of her application on compassionate ground only on the basis that she is a married lady, but, it is also trite law that if the petitioner is a married daughter and the family members of the deceased, who died in harness, are not dependent of the petitioner and when she herself is a member of the family where she has been married and dependent on her husband then in absence of such proof that the married daughter has to maintain the members of the family of the deceased employee can be rejected. The application for compassionate appointment solely on the ground of she being a married lady cannot be rejected, but the fact remains that the petitioner herself is a dependent on her husband, who has found to be employed in the respondent department and there is no such evidence to the contrary that all the other family members are dependent on the petitioner. In fact the sisters have lodged a complaint that the petitioner is a married lady and trying to secure the employment by hiding the very fact of the marriage.

The petitioner has filed the rejoinder in the matter, however, in the rejoinder, when the petitioner was encountered with the enquiry report and the documents, did not submit that she is not married. There is not a line in the rejoinder to suggest where she has candidly denied the fact that she is not married. The petitioner though has submitted in para-2 of the rejoinder that in the application she has mentioned her status to be unmarried on 06.01.2018, but the documents and the statements suggest that she has solemnized marriage in the year 2019.

The Hon'ble Apex Court in the case of State of Gujrat and others vs. Arvindkumar T. Tiwari and another reported in (2012) 9 SCC 545 in para-8 has held as under:-

"8. It is a settled legal proposition that compassionate appointment cannot be claimed as a matter of right. It is not simply another method of recruitment. A claim to be appointed on such a ground, has to be considered in accordance with the rules, regulations or administrative instructions governing the subject, taking into consideration the financial condition of the family of the deceased. Such a category of employment itself, is an exception to the constitutional provisions contained in Articles 14 and 16, which provide that there can be no discrimination in public employment. The object of compassionate employment is to enable the family of the deceased to overcome the sudden financial crisis it finds itself facing, and not to confer any status upon it. (Vide Union of India v. Shashank Goswami [(2012) 11 SCC 307 : AIR 2012 SC 2294] .)"

In the case Secretary to Government Department of Education (Primary) and others vs. Bheemesh alias Bheemappa reported in (2021) 20 SCC 707, the Hon'ble Apex Court in para 18 and 19 has held as under:-

"18. ..... This is fundamentally due to the fact that compassionate appointment was always considered to be an exception to the normal method of recruitment and perhaps looked down upon with lesser compassion for the individual and greater concern for the rule of law.

If compassionate appointment is one of the conditions of service and is made automatic upon the death of an employee in harness without any kind of scrutiny whatsoever, the same would be treated as a vested right in law. But it is not so. Appointment on compassionate grounds is not automatic, but subject to strict scrutiny of various parameters including the financial position of the family, the economic dependence of the family upon the deceased employee and the avocation of the other members of the family. Therefore, no one can claim to have a vested right for appointment on compassionate grounds ..... "

and in the case of Steel Authority of India Limited vs. Gouri Devi reported in (2022) 17 SCC 531, the Hon'ble Apex Court in paras-10,11 and 12 has held as under:

"10. As held by this Court in Punjab State Power Corpn. Ltd. v. Nirval Singh [Punjab State Power Corpn. Ltd. v. Nirval Singh, (2019) 6 SCC 774 : (2019) 2 SCC (L&S) 210] delay in pursuing claim/approaching court would militate against claim for compassionate appointment as very objective of providing immediate amelioration to family would stand extinguished. Before this Court, there was a delay of 07 years in approaching the Court and this Court observed and held that on the ground of delay itself, the heir/dependant of the deceased employee shall not be entitled to the appointment on compassionate ground.

In State of J&K v. Sajad Ahmed Mir [State of J&K v. Sajad Ahmed Mir, (2006) 5 SCC 766 : 2006 SCC (L&S) 1195] , this Court had occasion to consider the delay and laches in case of appointment on compassionate ground. By dismissing the claim for appointment on compassionate ground, which was made after a period of four-and-a-half years of death of the deceased employee, it was held that appointment on compassionate ground is an exception to general rule that appointment to public office should be made on the basis of competitive merits. It is further observed that once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no need to make appointment on compassionate ground at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution."

Considering the aforesaid analysis of the facts of the case and applying the principles laid down by the Hon'ble Apex Court in the cases referred hereinabove, it is found by this Court that the death of the employee of the respondent took place on 07.11.2017. Almost eight years have been passed after her death.

When the facts of the case are tested on the touchstone of the principles laid down by the Hon'ble Apex Court, in the considered opinion of this Court, now there is no finical need, which exists in favour of the petitioner for consideration on the compassionate ground coupled with the fact that it has come out very clearly that the petitioner being a married lady has her own unit of family. Petitioner's husband has been found to be in employment of respondents. Thus, the petitioner is not in need of financial assistance of employment. There is no document to suggest that any other family member of the deceased was dependent on the petitioner at the time of the death of the employee or on the date of the application.

Considering the totality of the facts of the case, the petition of the petitioner fails and is hereby dismissed.