Dularchand Prasad Mehta vs The Central Coalfields Ltd. and Others

This appeal has been preferred against the order dated 17.1.2008 passed by the learned Single Judge in W.P.(S) No. 3369 of 2003, by which the writ petition filed by the petitioner-appellant was rejected and thus his claim for appointment on compassionate ground in place of his deceased father was rejected.

The admitted facts under which the writ petition was filed by the petitioner-appellant indicates that the father of the petitioner-appellant Degan Mahto died in harness on 13.8.2000 leaving behind his widow and two sons, who were both major. The respondent-Central Coalfields Ltd. offered an appointment to the elder son of the deceased, namely, Kauleshwar Mahto but he refused to accept the appointment after which the second son of the deceased employee Dularchand Prasad Mehta i.e. the appellant herein claimed appointment in place of his late father as his elder brother had refused the offer of appointment. The respondent-Company rejected his request, indicating that the name of the younger son Dularchand Prasad Mehta i.e. the appellant herein does not appear in the service record of the Company and, therefore, his case was rejected. It is, in this context that the petitioner-appellant filed a writ petition before the learned Single Judge. However, the learned Single Judge was pleaded to reject the writ petition on the ground of absence of the petitioner- appellant''s name in the service record as also on account of the fact that the family had survived for more than seven years without any job on compassionate ground and for this purpose the learned Single Judge had relied upon the ratio of the case of Umesh Kumar Nagpal v. State of Haryana and Ors. reported in (1994) S.C.C. 138, wherein it was held by the Supreme Court that consideration for employment on compassionate ground is not a vested right which can be exercised at any time in future and it cannot be claimed and offered after a long lapse of time and after the crisis in the family is over. This was also the reason relied upon by the learned Single Judge denying appointment to the second son i.e. the appellant and hence the writ petition was dismissed.

Thereafter the petitioner-appellant preferred this appeal against the judgment and order of the learned Single Judge, wherein it was submitted that the learned Single Judge was factually incorrect in accepting the contention of the respondent-Company that the name of the younger son was not recorded in the service record as there are documents in support of the fact that the name of the younger son i.e. the petitioner-appellant herein was, in fact, mentioned

Learned Counsel for the appellant, first of all, submitted that the learned Single Judge was clearly in error in holding that the petitioner-appellant''s name was found missing in the service record of his deceased father and in support of the same he also furnished documents pertaining to Service Excerpts, CMPF record and Pension scheme, as contained in Annexures-7.8 and 9, wherein it was mentioned that the appellant was the second son of the deceased Degan Mahto.

However, in first place even if this contention were to be accepted as correct, this was clearly an error of record, which could have been rectified by way of a review before the learned Single Judge. But, we do not propose to dispose of this matter on this basis for even assuming that the petitioner-appellant''s name had been existing in the service record of his deceased father, the fact remains that the petitioner-appellant had failed to make out a case of compassionate appointment as the family of the petitioner-appellant was surviving on agricultural farming which was the reason for the elder son not to accept the appointment on compassionate ground. In this background, if the learned Single Judge relied upon the ratio of the case of Umesh Kumar Nagpal (supra), no fault can be found with the same as it is difficult to overlook or ignore that a case for appointment on the basis of compassion, has to be examined in the light of the family circumstances of the deceased and only thereafter the question of eligibility on the ground of age of the dependent and the fact whether his name was appearing in service record would have been relevant to examine specially in a circumstance when the elder son had refused to accept appointment on compassionate ground.

As already stated, even if this Court were to assume that the appellant''s name was existing in the service record, the fact remains that the family of the appellant obviously was not needy to the extent of claiming appointment on compassionate ground as in that event the appellant''s elder brother i.e. the elder son of the deceased would have had no reason to refuse appointment. Apart from this, the claim of compassionate appointment cannot be allowed to be availed by the members of the family of the deceased by way of pick and choose method, in the sense that when the appointment was refused by the member eligible to claim appointment on the ground that he had other source of income, inference will have to be drawn that the family was not needy enough to claim compassionate appointment and the plea that the brother was living separately has to be treated as too remote a ground at a subsequent stage when the family survived long after the death of the employee. (Hence claim of compassionate appointment at such a belated stage cannot be treated as a cause for compassionate appointment although the same may be a cause for appointment on a preferential basis but not a case of mandatory direction in the form of issuance of a writ of mandamus.

Taking into consideration the entire background, facts and circumstances of the matter, the appellant has failed to make out a case of compassionate appointment and hence the learned Single Judge has rightly refused to accept his claim.

The appeal thus has no merit. Consequently, it is dismissed.