Smt Vimlesh Mishra vs South Eastern Coal Fields Ltd and Others

Satish K. Agnihotri, J.—Heard learned counsel for the parties. By this petition, the petitioner seeks quashing of the communication dated 17/19-1-2008, by which the representation submitted by the petitioner for grant of compassionate appointment, has been rejected. The petitioner also seeks a direction to the respondent authorities to consider case of the petitioner for grant of compassionate appointment.

Case of the petitioner, in short, is that the husband of the petitioner namely; Ramvishal Mishra, while working as Dumper Operator in SECL died on 05.03.1996, in harness. The petitioner made an application for grant of compassionate appointment on 09.05.1996 (Annexure P/2) and requested the respondent authorities to grant appointment on the basis of compassionate grounds. According to the petitioner, during pendency of the application, the respondent authorities called the petitioner and stated that no post is lying vacant, and as and when the vacancy is available, her case would be considered. The respondent also advised the petitioner to submit an application for getting monetary benefits in place of compassionate appointment. Thereafter, even after lapse of more than three years when the case of the petitioner was not considered for grant of compassionate appointment, the petitioner preferred a petition before this Court being W.P.(S) No. 6717 of 2007, which was disposed of by this Court by order dated 17.11.2007 (Annexure P/5) in the following terms :

..the petitioner may file a fresh application along with copy of this writ petition and a copy of this order within three weeks from today before the concerned authorities of SECL and if such an application is filed, the authorities concerned shall dispose of the same on its own merits at the earliest. It is made clear that if the earlier application filed on 9th May, 1996 has already been decided by the authorities, then it is not required to decide the fresh application; the authorities shall only communicate the result to the petitioner.

Pursuant to the order dated 17.11.2007 passed by this Court, the petitioner submitted her representation on 06.12.2007 (Annexure P/6) which has been rejected and communicated to the petitioner by impugned communication dated 17/19 January, 2008 (Annexure P/7). Thus, this petition.

On the other hand, learned counsel appearing for the respondent/SECL submits that in compliance of the order dated 17.11.2007 passed by this Court, the representation dated 06.12.2007 submitted by the petitioner was considered. After the death of the husband of the petitioner, the petitioner made an application for grant of compassionate appointment and subsequently on 27.11.1996, the petitioner has applied for monetary benefits in lieu of the compassionate appointment. On the basis of the said application, the respondent authorities granted monetary benefits to the petitioner from the month of December, 1996 and, as such, the petitioner is not entitled to grant of compassionate appointment. Clause 9.5.0 of the National Coal Wage Agreement VI provides for employment/monetary compensation to female dependant.

Clause 9.5.0 (i) (ii) reads as under:

Provision of employment/monetary compensation to female dependants of workmen who die while in service and who are declared medically unfit as per Clause 9.4.0 above would be regulated as under:

(i) In case of death due to mine accident, the female dependant would have the option to either accept the monetary compensation of Rs.4,000/- per month or employment irrespective of her age.

(ii) In case of death/total permanent disablement due to causes other than mine accident and medical unfitness under Clause 9.4.0, if the female dependant is below the age of 45 years she will have the option either to accept the monetary compensation of Rs.3,000/- per month of employment.

In case the female dependant is above 45 years of age she will be entitled only to monetary compensation and not to employment.

The principle of law on the compassionate appointment is well settled. The compassionate appointment is granted only in the event, if an employee dies in harness and on account of sudden death, the dependent family has become penurious on sudden demise of the bread earner of the family, subject to policy of the employer for grant of compassionate appointment or monetary benefits, as the case may be. The compassionate appointment itself is a backdoor entry. It is a departure from the general rule of employment, as provided under the provisions of Article 14 & 16 of the Constitution of India. The appointment on compassionate basis is not in accordance with the constitutional scheme of employment but in order to subserve the above stated purpose, this provision has been made under the Rules framed by the State Government (See: State of J&K Others v. Sajad Ahmed Mir1, National Institute of Technology & Others v. Niraj Kumar Singh2, Haryana State Electricity Board and another v. Hakim Singh3).

In State of Manipur v. Md. Rajaodin4, the Supreme Court has held that:

In Sushma Gosain v. Union of India, it was observed that in all claims of appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the breadwinner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress. The fact that the ward was a minor at the time of death of his father is no ground, unless the Scheme itself envisages specifically otherwise, to state that as and when such minor becomes a major he can be appointed without any time consciousness or limit. The above view was reiterated in Phoolwati v. Union of India and Union of India v. Bhagwan Singh. In Director of Education (Secondary) v. Pushpendra Kumar, it was observed that in the matter of compassionate appointment there cannot be insistence for a particular post. Out of purely humanitarian consideration and having regard to the fact that unless some source of livelihood is provided the family would not be able to make both ends meet, provisions are made for giving appointment to one of the dependants of the deceased who may be eligible for appointment. Care has, however, to be taken that provisions for grant of compassionate employment which is in the nature of an exception to the general provisions does not unduly interfere with the right of those other persons who are eligible for appointment to seek appointment against the post which would have been available, but for the provision enabling appointment being made on compassionate grounds of the dependant of the deceased employee. As it is in the nature of exception to the general provisions it cannot substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision.

Recently, the Supreme Court in Bhawani Prasad Sonkar v. Union of India & Others5, has laid down the guidelines while considering a claim for employment on compassionate basis, as under :

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.

Applying the well settled principles of law on compassionate appointment, as aforestated, to the facts of the present case, it is evident that the petitioner is claiming compassionate appointment even after opting for grant of monetary benefits, in lieu of compassionate appointment, which was granted to the petitioner, as per rules. Now, after availing the monetary benefits, the petitioner cannot claim further benefit of compassionate appointment, against which the petitioner is already availing the monetary benefits. For the reasons mentioned hereinabove, I do not find any infirmity or irregularity in the impugned order warranting interference by this Court. Thus, this petition is dismissed. No order as to costs.