Calcutta High Court
M/S.Eastern Coalfield Ltd vs Pradhan Munda & Anr on 12 August, 2013
Author: Arun Mishra
Bench: Arun Mishra
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
APO 41 OF 2011
GA 259 of 2011
WITH
WP 673 of 2005
M/S.EASTERN COALFIELD LTD.
Versus
PRADHAN MUNDA & ANR.
BEFORE:
The Hon'ble CHIEF JUSTICE ARUN MISHRA
The Hon'ble JUSTICE JOYMALYA BAGCHI
Date : 12th August, 2013.
Mr.Vijay Kumar, Advocate
....for appellant
Mr.U.S.Agarwal, Advocate
...for respondent
The Court :-Heard. The intra Court appeal has been preferred by the Eastern Coal Field Limited aggrieved by a direction issued by Single Bench to reconsider the prayer for compassionate appointment which according to the appellant was stale matter and no interference could have been made.
The undisputed facts are that father of the respondent/petitioner died on 9.10.1992. Petitioner was at the relevant time aged twelve years. He applied on 8.12.1996 for compassionate appointment. His prayer had been rejected vide order dated 13.11.1998. The petitioner waited for seven years to 2 approach this Court for filing writ application. He filed writ application in 2005 before the Single Bench. Admittedly there was no provision in the National Coal Wage Agreement filed which was prevailing at the time of death of father of the petitioner to offer such an incumbent by keeping on live roster for offering compassionate appointment on attaining majority. This provision was introduced later on in the next National Coal Wage Agreement VI w.e.f. 1996. Admittedly at the time when the father of the petitioner died there was no such provision in National Coal Wage Agreement V. The National Coal Wage Agreement VI is not having retrospective effect. The writ petition was filed against the order of rejection of the application which order was passed in November 1998. The Single Bench without considering the merits of the case has ordered that due to lapse of the time it would not be proper to reconsider the question of appointment but direction has been given to reexamine the question whether financial hardship continues and existence of any compelling circumstances and thereafter the officer will record the same with reasons may pass an order of appointment in favour of the writ petitioner. Hearing will be afforded to the petitioner. He will be at liberty to adduce evidence which he may so desire.
Aggrieved by the aforesaid order the intra Court appeal has been preferred.
Learned Counsel on behalf of the appellant has submitted that compassionate appointment can be offered within a reasonable time and in absence of the provision to keep such an incumbent on live roster, who was minor at the time of death of his father. No case for interference was made out 3 and the impugned direction issued was not called for as no such indulgence was warranted in the facts of the case. Learned Counsel appearing on behalf of the respondent has relied upon the decision of this Court in Sujit Kora Vs. Coal India Ltd. & Ors. 2002(2) CHN 557 and Syed Khadim Hussain Versus State of Bihar And Ors., (2006) 9 Supreme Court Cases 195. Learned Counsel has further submitted that impugned order is appropriate since the respondent attained majority in 1996 thus he could have applied only thereafter. A minor was not supposed to file an application for employment. Thus the impugned order also does not call for interference in appeal.
After hearing the learned Counsel for the parties, we are of the considered opinion that in the absence of any provision in National Coal Wage Agreement V which was invogue at the time of death of the father of the respondent/petitioner no case was made out for interference. There was no such provision of National Coal Wage agreement V that a person who was aged 12 years was required to be kept on live roster till he attains majority.
In the facts of the instant case, no case was made out so as to issue direction for reconsideration of the case. It is settled law that office held by deceased is not hereditary one and after lapse of reasonable time compassionate appointment cannot be offered. The family to be in distress, is a sine qua non for offering compassionate appointment. The family has survived after death of employee and the application had been rejected in the year 1998. In case the respondent was desirous of obtaining employment, he ought to have approached the Court expeditiously. Even assuming that he could have filed an application 4 after attaining the majority that would not explain the inordinate delay and laches on his part in questioning the order of rejection passed in November 1998 in the year 2005, after seven years. The writ petitioner, it is evident, has waited about seven years from the date of rejection of his case. As per settled proposition of law compassionate appointment can be offered within a reasonable period of time and not beyond four-five years. Whatever that may be, in the facts and circumstances of the case no case was made out so as to direct fresh consideration of the application. This exercise was not at all warranted, as the claim had become stale. The direction issued by the Single Bench was uncalled for.
Learned Counsel appearing on behalf of the respondent has relied upon a decision in Syed Khadim Hussain Versus State of Bihar And Others, in which a person working as peon in PWD died in harness in 1991 leaving behind widow and five minor children. Widow applied for compassionate appointment within time. In 1993 her application was rejected because it was not in prescribed format. Appellant then applied for compassionate appointment but the application was rejected in 2001 on the ground that at the time of filing of application the he was aged about only thirteen years. It was held rejection of the application made by son of the appellant was not justified as at the time of rejection he has attained eighteen years of age. As such reconsideration was ordered. The facts of this case are different Majority was attained in 1996 and application had been rejected in 1998. Thereafter there was inordinate delay of 5 seven years in approaching the Court. Compassionate appointment cannot be claimed as of right.
The another decision of Division Bench as in Sujit Kora Vs. Coal India Ltd. & Ors.(supra) has been relied upon, in which this Court had observed that because of tender age the appellant could wait for reasonable length of time before enforcing that right, just as of right to claim the deceased's property does not become unenforceable in a case of minor heir. We are constrained to observe that we cannot at all compare compassionate appointment with right to hold property. The office is not hereditary one. The normal rule is to seek appointment by way of open competition. Compassionate appointment is an exception to general rule and is governed by the policy. The Division Bench of this Court has observed that the refusal of employment to an employee after five years had been passed after death of the father was not sustainable as the appellant could suitably wait for attaining majority. In the instant case the facts are different, there was inordinate delay after rejection of the prayer. Thus decision in Sujit Kora Vs. Coal India Ltd. & Ors.(supra) is not attracted.
In our opinion, the impugned order is not sustainable and resultantly, the same is liable to be set aside.
Appeal is allowed. Impugned order is set aside without, however, any order as to costs.
(JOYMALYA BAGCHI, J.) (ARUN MISHRA, C.J.) GH/SN.