Jharkhand High Court
Central Coalfields Limited Through Its ... vs Rajan on 22 November, 2017
Author: D.N. Patel
Bench: Amitav K. Gupta, D.N. Patel
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 393 of 2017
with
I.A. No. 7066 of 2017
with
I.A. No. 7064 of 2017
with
I.A. No. 7691 of 2017
Central Coalfields Limited, a Company incorporated under the Companies
Act, having its registered office at Darbhanga House, P.O. Ranchi
University, P.S. Kotwali, DistrictRanchi (Jharkhand), through its HOD
(Personnel (Admn) Sri Sanjay Kumar, son of Lt. Tarkeshwar Singh,
resident of Jawahar Nagar, P.O. Kanke, P.S. Gonda, District Ranchi.
...... ........Appellant/Respondent
Versus
1.Rajan, son of Late Sarifa Mallah, resident of village Dhori, P.O. Phusro Bazar, P.S. Bermo, District Bokaro, Jharkhand.
2. Director (Personnel) Central Coalfields Limited, Darbhanga House, Ranchi, P.O. Kuchari, P.S. Kotwali, DistRanchi.
3. Personnel Manager (MP) Central Coalfields Limited, Darbhanga House, Ranchi. P.O. Kuchari, P.S. Kotwali, Dist. Ranchi.
4. The Project Officer, Kargali U.G. & O.C. Project Central Coalfields Ltd. P.O. Kargali, P.S. Bermo, District Bokaro.
5. The Chief Manager (Personnel), Samadhan Cell, HQ Central Coalfields Limited, Darbhanga House, Ranchi, P.O. Kuchari, P.S. Kotwali, District Ranchi.
........Respondents
CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE AMITAV K. GUPTA
For the Appellant : M/s Amit Kumar Das, Pooja Kumari, Advocates
For Respondent No.1 : Mr. Bishambhar Shastri, Advocate 06/Dated 22nd November, 2017:
Oral Order:
Per D.N. Patel, A.C.J.:I.A. No. 7066 of 2017 2
1. This interlocutory application has been preferred under Section 5 of the Limitation Act, for condoning the delay of 79 days in preferring this Letters Patent Appeal.
2. Having heard counsels for both the sides and looking to the reasons stated in this interlocutory application, especially in paragraph nos. 4 and 5 thereof, there are reasonable reasons for condonation of delay in preferring this Appeal. We therefore, condone the delay in preferring this L.P.A. No. 393 of 2017.
3. This Interlocutory Application is allowed and disposed of.L.P.A. No. 393 of 2017
1. This Letters Patent Appeal has been preferred by the original respondent in W.P.(S) No. 4342 of 2014 . The writ petition was preferred by respondent no.1 for getting compassionate appointment because of death of his brother which has taken place on 29th July, 2000. As the writ petition has been allowed by the learned Single Judge, the present Letters Patent Appeal has been preferred by the original respondent.
2. Factual Matrix:
One Savitri Kamin was working with this appellant. She took voluntary retirement in the year, 1998.
At the relevant time, Female Voluntary Retirement Scheme, 1998 was in existence and as per the said scheme if any female employee is taking voluntary retirement her legal heir can be appointed as ClassIV employee.
By the virtue of such Scheme, despite Article 14 and 16 of the Constitution of India, son of Savitri Kamin namely Nageshwar Kumar Mallah was given employment on 20th March, 1999. Nageshwar Kumar Mallah, son of Savitri Kamin was initially appointed as Trainee with a monthly stipend of Rs. 2500/. His appointment letter is at Annexure1 to the memo of this L.P.A. Nageshwar Kumar Mallah was never confirmed. Before he confirmed and before he regularised into services he expired on 29th July, 2000.
Now his brother, who is original respondent in L.P.A. has preferred an application for getting appointment which was 3 rejected by this appellant vide order dated 31st February, 2014 which is at Annexure4 to the memo of this L.P.A. As the application for compassionate appointment was rejected of the brother of Nageshwar Kumar Mallah a writ petition was preferred being W.P.(S) No. 4342 of 2014 which was allowed by the learned Single Judge vide order dated 10th March, 2017 and hence, the present Letters Patent Appeal has been preferred by the original respondentManagement.
3. Arguments canvassed by the counsel for the Appellant (original respondent in the writ petition):
Counsel appearing for the appellant submitted that there is no right vested in the original petitioner to get the compassionate appointment because his brother viz. Nageshwar Kumar Mallah was never confirmed in the employment. He was only a Trainee and was appointed on a monthly stipend of Rs.2500/ and before he confirmed into the service he expired on 29th July, 2000 and hence, his brother, who is original petitioner, cannot be appointed on compassionate ground. This aspect of the matter has not been properly appreciated by the learned Single Judge. It is submitted by the counsel for the appellant (original respondent no.1) that for getting compassionate appointment by the original petitioner he has to be fully dependent upon his brother Nageshwar Kumar Mallah. Nageshwar Kumar Mallah was appointed as a Trainee on 20th March, 1999 (Annexure1) with stipend of Rs. 2500/ per month. His brother, who is original petitioner, cannot be dependent upon Nageshwar Kumar Mallah and the certificate given by Block Development Officer, Bermo (Bokaro) is of no use to the original petitioner because Block Development Officer cannot give such type of certificate just upon asking by the way of charity of the petitioner nor it was a concern of the Block Development Officer to peep into family affairs of somebody that who is dependent upon whom. These aspects of the matter have not been properly appreciated by the learned Single Judge while allowing the writ petition preferred by the respondent (original petitioner).4
It is further submitted by the counsel for the appellant (original respondent no.1) that when Savitri Kamin had taken voluntary retirement under a Female Voluntary Retirement Scheme of 1998 the only obligation on the part of the Management was to appoint her son as a ClassIV employee. This legal obligation of the appellant comes to an end, no sooner did, when Nageshwar Kumar Mallah was given appointment on 20th March, 1999. He was never a confirmed employee. He was appointed initially as a Trainee with monthly stipend of Rs. 2500/.
It is submitted by the counsel for the appellant that there is nothing like automatic confirmation in the employment. Even if the trainee period is over, there is nothing like automatic confirmation as has been held by Hon'ble Supreme Court reported in:
(a) AIR 1966 SC 175
(b) AIR 1966 SC 1842
(c) (1974) 2 SCC 831
(d) (1996) 5 SCC 308
It is a wrong notion in the mind of the original petitioner which has been accepted by the learned Single Judge which is an error apparent on the face of the record.
It is further submitted by the counsel for the appellant (original respondent no.1) that unless the regularly appointment employee or confirmed employee expires and unless the other legal heir is fully dependent upon the deceased, the compassionate appointment cannot be given. In the facts of the present case, neither Nageshwar Kumar Mallah was regular employee of this appellant nor the respondent (original petitioner) was fully dependent upon Nageshwar Kumar Mallah hence, no error was committed by this appellant in rejecting the application/representation for getting appointment of the respondent. These aspects of the matter have not been properly appreciated by the learned Single Judge and hence, the judgment and order passed by the learned Single Judge in W.P. (S) No. 4342 of 2014 dated 10th March, 2016 deserves to be quashed and set aside.5
4. Arguments canvassed by the counsel for the respondent (original petitioner):
It is submitted by the counsel for the respondent (original petitioner) that no error has been committed by the learned Single Judge while deciding the writ petition preferred by the respondent being W.P.(S) No. 4342 of 2014 vide judgment and order dated 10th March, 2017 mainly for the reason that looking to the appointment letter of brother of the original petitionerNageshwar Kumar Mallah, which is at Annexure1, it appears that the trainee period was for a limited period. Once the trainee period is over the brother of the original petitioner is deemed to have been confirmed. This aspect of the matter has been properly appreciated by the learned Single Judge. It is further submitted by the counsel for the respondent (original petitioner) that there a certificate given by the Block Development Officer, Bermo (Bokaro) that the original petitioner was dependent upon Nageshwar Kumar Mallah. It is further submitted by the counsel for the respondent that nowhere in the rejection order it has been mentioned that the original petitioner was not a dependent of Nageshwar Kumar Mallah. It is also submitted by the counsel for the respondent (original petitioner) that he is son of Savitri Kamin and the name of the original petitioner is also mentioned in the service excerpt.
Counsel for the respondentoriginal petitioner submitted that the service sheet of Nageshwar Kumar Mallah was opened by the appellant. This aspect of the matter has been properly appreciated by the learned Single Judge while allowing the writ petition preferred by the respondent and hence, this Letters Patent Appeal may not be entertained by this Court.
Counsel for the respondent further submitted that there is some circular issued by the Management of the year 2005 that whenever any Trainee or Probationer expires his legal heir can be appointed.
R E A S O N S
5. Having heard counsels for both the sides and looking to the facts and circumstances of the case, we, hereby, quash and set aside the order 6 passed by the learned Single Judge in W.P.(S) No. 4342 of 2014 judgment and order dated 10th March, 2017 mainly for the following facts, reasons and judicial pronouncements:
(i) initially one Smt. Savitri Kamin was an employee of this appellant and she took Voluntary Retirement in the year 1998 mainly for the reason that there was one Female Voluntary Retirement Scheme of the year 1998 which permits any employee by this appellant to take voluntary retirement, so that her son or daughter can be appointed as ClassIV employee despite Article 14 and 16 of the Constitution of India.
(ii) It appears that ClassIV employee has a very easy methodology for getting employment for their son or daughter. No new comer can be entered into the services of this appellant which is a "State" within the meaning of Article 12 of Constitution of India.
(iii) At present, the Scheme has lapsed otherwise, there are several aspects which we can be discussed about the right to get employment as an inheritance by the employee of the public sector undertaking which is not permissible looking to Article 14, 15 and 16 of the Constitution of India, but, as the Scheme has been ended because of lapse of time, we are not criticizing the said Scheme at this stage.
(iv) In pursuance of the aforesaid Female Voluntary Retirement Scheme of 1998 as Savitri Kamin tendered her resignation her son Nageshwar Kumar Mallah was appointed as a ClassIV employee on 20th March, 1999 (order of appointment is at Annexure1 to the memo this LPA).
(v) Looking to the appointment letter, it appears that Nageshwar Kumar Mallah was appointed as a Trainee with a monthly stipend of Rs. 2500/ and it has been mentioned in clause no.1 thereof, that upon successful completion of the trainee period he may be put on regular basis or his period of his trainee can be extended.
(vi) It appears that one year was over and he was not confirmed.
There is nothing like automatic confirmation even if the aforesaid period of one year is over.
7(vii) It has been held by Hon'ble Supreme in the case of G.S. Ramaswamy v. I.G. Police, reported in AIR 1966 SC 175 para8 as under:
8. It has further been urged on the basis of Rule 486 that as the petitioners had worked for more than two years on probation, they became automatically confirmed under the said Rule, and reliance is placed on the following sentence in Rule 486, namely, "promoted officers will be confirmed at the end of their probationary period if they have given satisfaction." The law on the question has been settled by this Court in Sukhbana Singh v.
State of Punjab AIR 1962 SC 1711. It has been held in that case that a probationer cannot after the expiry of the probationary period automatically acquire the status of a permanent member of a service, unless of course the Rules under which he is appointed expressly provide for such a result. Therefore even though a probationer may have continued to act in the post to which he is appointed on probation for more than the initial period of probation, he cannot become a permanent servant merely because of efflux of time, unless the Rules of service which govern him specifically lay down that the probationer will be automatically confirmed after the initial period of probation is over. It is contended on behalf of the petitioners before us that the part of Rule 486 (which we have set out above) expressly provides for automatic confirmation after the period of probation is over. We are of opinion that there is no force in this contention. It is true that the words used in the sentence set out above are not that promoted officers will be eligible or qualified for promotion at the end of their probationary period which are the words to be often found in the Rules in such cases; even so, though this part of Rule 486 says that "promoted officers will be confirmed at the end of their probationary period", it is qualified by the words "if they have given satisfaction". Clearly therefore the Rule does not contemplate automatic confirmation after the probationary period of two years, for a promoted officer can only be confirmed under this Rule if he has given satisfaction. This condition of giving satisfaction must be fulfilled before a promoted officer can be confirmed under this Rule and this condition obviously means that the authority competent to confirm him must pass an order to the effect that the probationary officer has given satisfaction and is therefore confirmed. The petitioners, therefore, cannot claim that they must be treated as confirmed circle inspectors simply because they have worked for more than two years on probation; they can only become confirmed circle inspectors if an order to that effect has been passed even under this rule by the competent authority. The first contention, therefore, that the petitioners before us have an indefeasible right to promotion once their names are put in the eligibility list and that they are entitled to continue as circle inspectors thereafter if they have once been promoted, on temporary or officiating basis, cannot be sustained. (Emphasis supplied)
(viii) It has been held by Hon'ble Supreme in the case of State of U.P. v. Akbar Ali Khan, reported in AIR 1966 SC 1842 para6 as under:
86. The scheme of the rules is clear: confirmation in the post which a probationer is holding does not result merely from the expiry of the period of probation, and so long as the order of confirmation is not made, the holder of the post remains a probationer. It has been held by this Court that when a first appointment or promotion is made on probation for a specified period and the employee is allowed to continue in the post, after the expiry of the said period without any specific order of confirmation he continues as a probationer only and acquires no substantive right to hold the post. If the order of appointment itself states that at the end of the period of probation, the appointee will stand confirmed in the absence of any order to the contrary, the appointee will acquire a substantive right to the post even without an order of confirmation. In all other cases, in the absence of such an order or in the absence of such a service rule, an express order of confirmation is necessary to give him such a right. Where after the period of probation an appointee is allowed to continue in the post without an order of confirmation, the only possible view to take is that by implication the period of probation has been extended, and it is not a correct proposition to state that an appointee should be deemed to be confirmed from the mere fact that he is allowed to continue after the end of the period of probation.
(Emphasis supplied)
(ix) It has been held by Hon'ble Supreme in the case of Samsher Singh v. State of Punjab, reported in (1974) 2 SCC 831 para71 as under:
71. Any confirmation by implication is negatived in the present case because before the completion of three years the High Court found prima facie that the work as well as the conduct of the appellant was unsatisfactory and a notice was given to the appellant on October 4, 1968 to show cause as to why his services should not be terminated. Furthermore, Rule 9 shows that the employment of a probationer can be proposed to be terminated whether during or at the end of the period of probation. This indicates that where the notice is given at the end of the probation the period of probation gets extended till the inquiry proceedings commenced by the notice under Rule 9 come to an end. In this background the explanation to Rule 7(1) shows that the period of probation shall be deemed to have been extended impliedly if a Subordinate Judge is not confirmed on the expiry of this period of probation. This implied extension where a Subordinate Judge is not confirmed on the expiry of the period of probation is not found in Dharam Singh's case (supra). This explanation in the present case does not mean that the implied extension of the probationary period is only between two and three years. The explanation on the contrary means that the provision regarding the maximum period of probation for three years is directory and not mandatory unlike in Dharam Singh's case and that a probationer is not in fact confirmed till an order of confirmation is made.
(Emphasis supplied) 9
(x) It has been held by Hon'ble Supreme in the case of Shri Kedar Nath Bahl v. The State of Punjab, reported in (1974) 3 SCC 21, para9 as under:
9. It was next contended that even if it is assumed that he was not confirmed by the Government in the post, it must be held that he was automatically confirmed in the post after the first six months of probation. He was a Government servant before he accepted this post and under the terms of appointment already referred to, he was on probation for six months. The period of probation was over on May 5, 1955. It is the contention of the appellant that on the expiry of this period of probation he was automatically confirmed. The record, however, shows that the probationary period was extended by the Government from time to time though the orders were made with retrospective effect. The appellant contends that these orders extending the period of probation were irregular and illegal. Either he should have been discharged within the first six months of probation, or, if he was not so discharged he was entitled to automatic confirmation. We do not think that this contention is correct. The law on the point is now well settled. Where a person is appointed as a probationer in any post and a period of probation is specified, it does not follow that at the end of the said specified period of probation he obtains confirmation automatically even if no order is passed in that behalf. Unless the terms of appointment clearly indicate that confirmation would automatically follow at the end of the specified period, or there is a specific service rule to that effect, the expiration of the probationary period does not necessarily lead to confirmation. At the end of the period of probation an order confirming the officer is required to be passed and if no such order is passed and he is not reverted to his substantive post, the result merely is that he continues in his post as a probationer. See:
Narain Singh Ahluwalia v. State of Punjab; Accountant General Madhya Pradesh, Gwalior v. Beni Prasad Bhatnagar, G.S. Ramaswamy v. InspectorGeneral of Police, Mysore State. The terms of appointment do not show that the appellant would be automatically confirmed on the expiry of the first six months of probation nor is any rule brought to our notice which has the effect of confirming him in the post after six months of probation. The position of the appellant, therefore, till the abolition of the post on November 4, 1958, was that he continued to be a probationer and has no right to the post. It, therefore, follows that when the tenure of the post came to an end, he was automatically reverted to his original post as an Inspector on which he had the lien.
(Emphasis supplied)
(xi) It has been held by Hon'ble Supreme in the case of High Court of M.P. v. Satya Narayan Jhavar, reported in (2001) 7 SCC 161, reported in para11 as under:
11. The question of deemed confirmation in service jurisprudence, which is dependent upon the language of the relevant service rules, has been the subjectmatter of consideration before this Court, times without number in various decisions and there are 10 three lines of cases on this point. One line of cases is where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. The other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that the officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry the order of termination has not been passed. The last line of cases is where, though under the rules maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired.
(Emphasis supplied)
(xii) It has been held by Hon'ble Supreme in the case of Registrar, High Court of Gujarat v. C.G. Sharma, reported in (2005) 1 SCC 132 reported in para26 as under:
26. A large number of authorities were cited before us by both the parties. However, it is not necessary to go into the details of all those cases for the simple reason that subrule (4) of Rule 5 of the Rules is in pari materia with the Rule which was under
consideration in the case of State of Maharashtra v. Veerappa R. Saboji and we find that even if the period of two years expires and the probationer is allowed to continue after a period of two years, automatic confirmation cannot be claimed as a matter of right because in terms of the Rules, work has to be satisfactory which is a prerequisite or precondition for confirmation and, therefore, even if the probationer is allowed to continue beyond the period of two years as mentioned in the Rule, there is no question of deemed confirmation. The language of the Rule itself excludes any chance of giving deemed or automatic confirmation because the confirmation is to be ordered if there is a vacancy and if the work is found to be satisfactory. There is no question of confirmation and, therefore, deemed confirmation, in the light of the language of this Rule, is ruled out. We are, therefore, of the opinion that the argument advanced by learned counsel for the respondent on this aspect has no merits and no leg to stand. The learned Single Judge and the learned Judges of the Division Bench have rightly come to the conclusion that there is no automatic confirmation on the expiry of the period of two years and on the expiry of the said period of two years, the confirmation order can be passed only if there is vacancy and the work is found to be satisfactory. The Rule also does not say that the two years' period of probation, as 11 mentioned in the Rule, is the maximum period of probation and the probation cannot be extended beyond the period of two years. We are, therefore, of the opinion that there is no question of automatic or deemed confirmation, as contended by the learned counsel for the respondent. We, therefore, answer this issue in the negative and against the respondent.
(Emphasis supplied) Thus, it is a wrong notion in the mind of the respondentoriginal petitioner that once the trainee period is over, as stated in clause1 of the appointment letter of Nageshwar Kumar Mallah there is automatic confirmation into the services of the appellant. It should be kept in mind that unless the employee is confirmed by the Management, even if the training period mentioned in the appointment letter is over, such employee cannot be labelled as confirmed employee.
Confirmation ought to be conferred by the Management. Confirmation cannot be assumed or presumed because of lapse of time. Confirmation cannot be assumed or presumed even if the trainee period is over. These aspects have been lost sight of while deciding the writ petition being W.P.(S) No.4342 of 2014 vide judgment and order dated 10th March, 2017.
(xiii) Thus, Nageshwar Kumar Mallah, son of Savitri Kamin was never confirmed by the appellantManagement and he expired on 29th July, 2000. Once Nageshwar Kumar Mallah is appointed on compassionate basis by taking voluntary retirement by Savitri Kamin, the legal obligation of the Management comes to an end. There is no further legal obligation on the part of the appellantManagement to offer compassionate appointment to another son of Savitri Kamin.
These aspects of the matter have not been properly appreciated by the learned Single Judge while deciding W.P.(S) No.4342 of 2014 vide order dated 10th March, 2017.
(xiv) Compassionate appointment can be given only when a person, who is seeking compassionate appointment, is fully dependent upon the income of the deceased. Nageshwar Kumar Mallah was a Trainee. He was never confirmed into the services. He was getting monthly stipend of Rs. 2500/ hence, the original petitioner cannot be said to be dependent upon his brother.
12(xv) Much has been argued out by the counsel for the respondent (original petitioner) that name of the original petitioner was in a service excerpt of his mother Savitri Kamin. This argument is of no help to the original petitioner mainly for the reason that nobody denies that he is son of Savitri Kamin. The only reason for not to give compassionate appointment to the original petitioner is that Nageshwar Kumar Mallah was not a confirmed employee. He was only a trainee and before he confirmed he expired on 29th July, 2000 and as there is nothing like automatic confirmation, original petitioner, who is brother of deceased Nageshwar Kumar Mallah, cannot get compassionate appointment.
(xvi) It has been held by Hon'ble Supreme in the case of State of Haryana v. Rani Devi reported in (1996) 5 SCC 308 in para7 as under:
"7. So far the facts of the present case are concerned, we fail to appreciate as to how the High Court directed that the respondents aforesaid be appointed on compassionate ground when admittedly the respective husbands of the respondents were working as Apprentice Canal Patwaris for the periods mentioned above. If the scheme regarding appointment on compassionate ground is extended to all sorts of casual, ad hoc employees including those who are working as Apprentices, then such scheme cannot be justified on constitutional grounds. It need not be pointed out that appointments on compassionate grounds, are made as a matter of course, without even requiring the person concerned to face any Selection Committee. In the case of Umesh Kumar Nagpal v. State of Haryana it was said:
(SCC p. 141, para 5) "It is obvious from the above observations that the High Court endorses the policy of the State Government to make compassionate appointment in posts equivalent to the posts held by the deceased employees and above Classes III and IV. It is unnecessary to reiterate that these observations are contrary to law. If the dependant of the deceased employee finds it below his dignity to accept the post offered, he is free not to do so. The post is not offered to cater to his status but to see the family through the economic calamity."
It was also impressed that appointments on compassionate ground cannot be made after lapse of reasonable period which must be specified in the rules because the right to such employment is not a vested right which can be exercised at any time in future"
(Emphasis supplied) In view of the aforesaid decision, the legal heir of the confirmed employee can get compassionate appointment not otherwise. Those 13 who are working as apprentee, trainee, probationer and if they expired their legal heir cannot get the compassionate appointment.
6. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, we hereby, quash and set aside the judgment and order delivered by the learned Single Judge in W.P.(S) No.4342 of 2014 dated 10th March, 2017. This Letters Patent Appeal is allowed and disposed of. As the Letters Patent Appeal is finally allowed, Interlocutory Applications are disposed of.
( D.N. Patel, A.C.J.) (Amitav K. Gupta, J.) VK/AFR