Chhata Devi vs Bharat Coking Coal Ltd. and Others

Alok Singh, J.—Husband of the petitioner late Shibu Manjhi, Greaser Helper in Madhuband Coal Washery had died-in-harness on 26.3.2005. Petitioner had applied for compassionate appointment on 14.12.2006. Claim of the petitioner, seeking compassionate appointment, was declined vide order dated 15/16.5.2008 (Annexure-6), on the ground that application, seeking compassionate appointment, was moved after 18 months, from the death of the worker, which could not be entertained, in view of the Circular No. 1195-1270 dated 24.1.2004 issued by C.M.D., BCCL, wherein it was provided that no request/claim for employment would be entertained after 18 months from the date of death of the worker nor any such case would be forwarded to the Headquarter for consideration. Mr. Mahesh Tewari, learned counsel for the petitioner, while placing reliance on the judgment of the Apex Court, in the case of Mohan Mahto Vs. Central Coal Field Ltd. and Others, has vehemently argued that National Coal Wages Agreement (in short ''NCWA'') is a statutory agreement and keeping in mind the beneficial provision made under the NCWA, respondents are expected to act reasonably. He has further argued that no limitation can be provided for moving the application for compassionate appointment.

Hon''ble Apex Court in the case of Mohan Mahto (supra), in para No. 18 has observed as under:--

That it is not necessary for us to go into the question as to whether in the teeth of the provision of NCWA-V. the respondent at all had any power to fix a time-limit and thereby curtailing the right of the workman concerned. We would assume that even in such a matter, it had a right. But, even for the said purpose, keeping in view the fact that a beneficial provision is made under a settlement, the "State" was expected to act reasonably. While so acting, it must provide for a period of limitation which is reasonable. It will bear repetition to state that expiry of the period of limitation was not taken as a ground for rejecting his application. Underage and non-placement of his name in live roster are stated to be the reasons. It is therefore, unfair on the part of the respondent to raise such a plea for the first time in its counter-affidavit to the writ petition.

From perusal of para 18 of the judgment of Mohan Mahto (supra), it is thus clear that Their Lordships of Supreme Court had not decided as to whether respondent had at all any power to fix the time limit to apply for compassionate appointment. However, their Lordships had observed, in Para 18 itself, that period of limitation so provided, must be reasonable. It has further been held that application seeking compassionate appointment was not rejected on the ground of limitation, but was rejected on the ground of under age and non-placement of his name on live roster. Therefore, ground of limitation as per Circular of CCL shall not be allowed to be taken for first time in the writ petition by way of counter affidavit.

Hon''ble Apex Court in the case of Life Insurance Corporation of India Vs. Mrs. Asha Ramachandra Ambekar and another, has held that Courts cannot order appointment on compassionate ground de hors the provisions of statutory regulations and instructions; Courts cannot confer benediction impelled by sympathetic consideration.

In the case of Umesh Kumar Nagpal Vs. State of Haryana and Others, , Hon''ble Apex Court has held that compassionate appointment cannot be given after a lapse of a reasonable time which is specified in the Rules.

In the case of State of H.P. and Another Vs. Jafli Devi (Smt.), , Hon''ble Apex Court has held that in the matter of compassionate appointment, the policy laid down by the Government should not be departed by the High Court merely on the ground of sympathetic consideration and alleged hardships of the person concerned.

Hon''ble Apex Court in the case of Bhawani Prasad Sonkar Vs. Union of India (UOI) and Others, in paragraphs 18, 19 and 20 has held as under:--

Similarly, in SAIL vs. Madhusudan Das, this Court has observed that: (SCC p.566, para 15)

This Court in a large number of decisions has held that the appointment on compassionate ground cannot be claimed as a matter of right. It must be provided for in the rules. The criteria laid down therefor viz. that the death of the sole bread-earner of the family, must be established. It is meant to provide for a minimum relief, when such contentions are raised, the constitutional philosophy of equality behind making such a scheme be taken into consideration. Articles 14 and 16 of the Constitution of India mandate that all eligible candidates should be considered for appointment in the posts which have fallen vacant. Appointment on compassionate ground offered to a dependant of a deceased employee is an exception to the said rule. It is a concession, not a right.

In V. Sivamurthy vs. State of A.P., this Court while observing that although appointment in public service should be made strictly on the basis of open invitation of applications and comparative merit, having regard to Articles 14 and 16 of the Constitution, yet appointments on compassionate grounds are well-recognised exception to the general rule, carved out in the interest of justice to meet certain contingencies, highlighted the following two well-recognised contingencies as exceptions to the general rule: (SCC p.741, para 18)

(i) appointment on compassion-ate grounds to meet the sudden crisis occurring in a family on account of the death of the breadwinner while in service.

(ii) appointment on compassionate ground to meet the crisis in a family on account of medical invalidation of the breadwinner.

Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind:--

(i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority, the request is to be considered strictly in accordance with the governing scheme and no discretion as such is left with any authority-to make compassionate appointment de hors the scheme.

(ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time.

(iii) An appointment on compassionate ground is to meet the sudden crises occurring in the family on account of the death or medical invalidation of the breadwinner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee''s family at the time of his death or incapacity, as the case may be.

(iv) Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class-III and IV posts.

Division Bench of this Court in the case of Sushil Kumar Vengra vs. Union of India and Ors. as reported in 2005(1) J.C.R. 282 has held as under:--

When compassionate appointment to a dependent of a public sector undertaking or an entity which is a State within the purview of Article 12 of the Constitution of India is governed by a scheme or rule or circular issued in that behalf by that entity, appointments could be made by that entity only in terms of the Scheme, Rules or Circular and a Court exercising jurisdiction under Article 226 of the Constitution of India does not have jurisdiction to direct the Government or the authority concerned to go against its own scheme. The adage that hard facts make bad law should not be forgotten by Courts while dealing with such cases. Courts should not also be instrumental in ushering in arbitrariness in such matters when an authority has strictly followed what it has itself set out as part of the scheme. Unless the Court is in a position to strike down the very scheme, the Court cannot direct a departure from that scheme." 10. This Court in the case of Dhani Ram Manjhi vs. Central Coalfields Limited and Ors. in W.P.(S) No. 2131 of 2005 decided on 16.7.2012 has held as under:--

Having perused the judgments in the case of Bhawani Prasad Sonkar (supra), Sushil Kumar Vengra (supra) and Satyendra Bhuinya (supra), it is thus clear that compassionate appointment can be sought and granted in accordance to the Rules, Regulations, Schemes made by the State or instrumentality of the State; application of compassionate appointment must be preferred without undue delay within such limitation as prescribed. This Court, while exercising the powers under Article 226 of the Constitution of India, ordinarily should not direct to extend the period of limitation as contained in different Circulars/Statutes, however, in the peculiar facts and circumstances of a case, the period of such limitation may be relaxed in order to give effect to the beneficial provisions of the various schemes of the welfare legislation of the State including compassionate appointment by the authority considering the application on showing sufficient grounds for such delay in moving the application.

In view of the Bhawani Prasad Sonkar (supra), an application, seeking compassionate appointment, must be moved without undue delay and within reasonable time. Request of compassionate appointment is to be considered strictly, in accordance with the governing scheme.

National Coal Wages Agreement does not provide time to prefer an application, seeking compassionate appointment, therefore, time of 18 months was provided by the Circular dated 24.1.2004, which cannot be said to be unreasonable. Dependants should not be left to approach the authorities as per his/her sweet will. If dependant, in fact, is in real hardship, because of the death of the breadwinner, he shall approach the authority without undue delay. Unreasonable or unexplained delay in approaching for the appointment shall draw adverse inference to say, in fact, alleged dependant is not in crises and does not deserve for the compassionate appointment. In the peculiar facts and circumstances of the particular case, the period of limitation may be relaxed by the authority, in order to give effect to the beneficial provision, on showing sufficient ground for delay in moving the application.

Coming to the present case, there seems to be no sufficient ground, which could convince the authorities, to entertain the application beyond 18 months. Therefore, rejection on the ground of limitation seems to be justified. Accordingly, this writ petition stands dismissed.