Saraswatia Kumari vs M/s Bharat Coking Coal Ltd

Deepak Roshan, J

Heard Ld. Counsel for the parties.

The instant Writ application has been preferred by the Petitioner for the following relief :

i) For Quashing the letters/communication dt. 04.04.2017 (Annexure.-11), 14.12.2017 (Annexure.-12),25/ 28.12.2017 (Annexure.-13) whereby and where-under the claim for compassionate appointment of the Petitioner has been rejected on the ground that on the date of her first application for compassionate employment on 02.03.2011, she was minor being 15 years 02 months 29 days which was regretted by the Respondent No.5 being minor/underage (below 18 years) and also there is no provision for keeping a female dependent in Live Roster.

ii) For direction upon the respondent authorities to consider and grant compassionate appointment to the Petitioner.

The brief facts of the case as per the pleadings in the Writ application is that the father of the Petitioner namely Kanhai Chouhan was appointed on 03.12.1996 in Katras Project as an underground minor loader and he died in harness on 31.10.2010. Petitioner made her first application dt. 02.03.2011, before the Project Officer, Katras Colliery for grant of compassionate appointment; however, she did not receive any communication from the Respondents regarding the acceptance or rejection of her application.

Thereafter, upon attaining the age of majority, the Petitioner gave her second application dt. 21.02.2014 for grant of compassionate appointment. When the Petitioner received no response from the respondent authorities for more than 2 years, she gave a reminder application on 15.09.2017.

Thereafter, the 3rd Respondent (General Manager, BCCL) informed Asst. Personnel Manager, Katras vide letter no.788(R) dt. 04.04.2017 that the claim of the Petitioner has been rejected. Hence this Writ application.

Ld. Counsel for the Petitioner submits that as per the counter affidavit of the Respondent BCCL, the first application made by the Petitioner for compassionate appointment, was rejected by the Respondents on the same ground of being a minor and non-availability of provision of live roster for female dependent, by virtue of order no. 205 dt.19.04.2011/03.05.2011. However, it is a categorical submission of the Petitioner, that no such order was ever communicated to the Petitioner.

Ld. Counsel further submits that claim for compassionate appointment has been rejected solely on the ground that she was a minor at the time of making her application and as per Clause 9.5.0 (iii) of the NCWA Agreement VIII, a male dependent is kept on a live roster till he attains majority, but no such provision is available for a female dependent.

She further submits that the name of the Petitioner has been refused to be kept on the live roster, not because she was less than 15 years of age at the time of death of her father, but because she is a female. And this is a clear violation of Article 14 and 16 of the Indian constitution. She contended that the concerned respondents are also aware that such provision is discriminatory in nature and hence by virtue of NCWA-11, which became effective from 01.07.2021, the parties have mutually agreed that henceforth, irrespective of gender, a minor above the age of 12 years shall be kept on a live roster till he/she attains the age of 18 years.

Ld. Counsel lastly submits that in view of NCWA-11, which became effective from 01.07.2021; the ground for rejection is now no more valid; accordingly, impugned orders may be quashed and the petitioner may be appointed on compassionate ground.

Ld. Counsel representing the Respondents submits it is well settled principle of law that compassionate appointment is not an alternative mode of employment; rather it is an exception to the general mode of employment inconformity with Articles 14 and 16 of the Constitution of India and such exception has been carved out only to provide immediate relief to the family of the deceased-employee so as to enable them to tide over the immediate hardship which the family has been subjected to due to sudden death of the employee.

In the instant case, the Ex-employee died far back on 31.10.2010 and at the time of his death, this petitioner was not eligible to be employed on compassionate ground and accordingly her claim was rejected on 19.04.2011/03.05.2011. The petitioner never chose to challenge the said order and all of a sudden, started again claiming employment on compassionate ground after few years which has been rejected.

Ld. Counsel contended that by this time the very purpose of compassionate appointment has become frustrated and therefore, even otherwise she is not entitled to any relief.

Having heard the Ld. Counsel for the parties and after going through the documents annexed with the respective affidavits, it transpires that the first application filed by the Petitioner dated 24.02.2011 which was received on 02.03.2011 for compassionate appointment was duly considered and the Project Officer, AKWMC found that she was aged about 15 years and as such, she was not eligible for employment as per the provision of National Coal Wage Agreement and accordingly rejected her application vide letter dated 19.04.2011/03.05.2011. This rejection letter has never been challenged.

However, all of a sudden, the Petitioner started making applications seeking compassionate appointment vide applications dated 08.01.2014, 21.02.2014 and 04.09.2014 stating that previously her application was rejected as she was a minor but now she has become major and accordingly requested for appointment on compassionate ground which was also rejected vide letter dated 04.04.2017.

The ground taken by the Petitioner that earlier rejection order for compassionate appointment was not communicated to her is falsified by Petitioner’s own application dated 08.01.2014 which is annexed as annexure B of the counter affidavit wherein it has been stated that she received the rejection order. For brevity, the relevant part of application is quoted herein below:

“ ….. मै पिता की जगह पर आश्रित का नियोजन हेतु आवेदन किया था।  मेरा उम्र १८ वर्ष पूरा नहीं हुआ था।  जिसके कारण मुझे पत्रांक सं० वे० मु०/2011/205 दिनांक  19.04/03.05.2011 को कार्यालय आदेश मिला था कि आप नाबालिक है । जिसके कारण आपका नियोजन नहीं हो सकता है। /…..”

However, instead of challenging the aforesaid rejection order, the Petitioner wait for attaining majority and thereafter again applied for compassionate appointment.

This Court fails to understand that when her application was already rejected in the year 2011, the question of reconsideration of the same does not arise and the Petitioner was not eligible at the time of her father death.

So far as the petitioner’s contention with regard to putting the petitioner in live roster is concerned; there was no provision for keeping a female dependent in live roster in the N.C.W.A. VIII. The Division Bench of this Court in LPA No. 529 of 2018 has held this issue that the terms and conditions has arrived at by way of National Coal Wage Agreement, and the same is having the statutory fervor, therefore, the same cannot be allowed to be deviated. Paragraph nos. 16 of the aforesaid judgement is quoted herein below:

“16. The position of law is well settled that the terms and conditions cannot be allowed to be deviated while herein, the terms and conditions has arrived at by way of National Coal Wage Agreement since is having the statutory fervor, therefore, the same cannot be allowed to be deviated. The condition stipulated under clause 9.5.0 (iii) is that the dependant of the deceased employee can only be kept in live roster if he has attained the age of 15 years till the date of attaining majority..”

Further, the Hon’ble Apex Court in Fertilizers and Chemicals Travancore Ltd. and Others Vs Anusree K.B. 2022 SCC Online SC 1331 has held that if the compassionate appointment is made now and/or after a period of 14/24 years after the death of the employee, the same shall be against the object and purpose for which the policy of compassionate appointment is made. It would be profitable to refer the said view of the Hon’ble Apex Court.

Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the observations made hereinabove and the object and purpose for which the appointment on compassionate ground is provided, the respondent shall not be entitled to the appointment on compassionate ground on the death of her father, who died in the year 1995. After a period of 24 years from the death of the deceased employee, the respondent shall not be entitled to the appointment on compassionate ground. If such an appointment is made now and/or after a period of 14/24 years, the same shall be against the object and purpose for which the appointment on compassionate ground is provided.”

In  the  instant  case,  the  Petitioner’s  father  died  on 31.10.2010 and the instant writ application was filed on 23.10.2018 and now it is November’ 2025; as such, even in wildest imagination, it cannot be said to be instantaneous for whatever reasons and the compassionate appointment cannot be claimed as a matter of right and compassionate appointment is only be given to tide over the sudden financial crisis and certainly now it cannot be termed as sudden crisis.

Having regard to the aforesaid discussion, the instant writ application stands dismissed. Pending I.As, if any, also stand disposed of.