Calcutta High Court (Appellete Side)
Maisur Khan vs Eastern Coalfields Ltd. & Ors on 17 April, 2009
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present : The Hon'ble Justice Dipankar Datta
W.P. No. 5122 (W) of 2007
Maisur Khan
...Petitioner
Versus
Eastern Coalfields Ltd. & ors.
... Respondents
Mr. Nirmalendu Ganguly ...for the petitioner Mr. Bijoy Kumar Gupta ... for the respondents Heard on : 4.3.2009 Judgment on : 17.4.2009 The father of the petitioner died in harness on 20.6.1987. At the time of his death, the petitioner's father was a Majdoor of Girimint Colliery under the Eastern Coalfields Limited. According to the petitioner, his father was the only earning member of the family and as a result of his untimely death, he along with the other family members found themselves in utter distress without means for survival. The petitioner had applied for compassionate appointment; however, the date on which such application was made has not been stated in the petition. He was called upon, in pursuance of his application, to appear before the Screening Committee on 31.8.1998 vide letter dated 29.8.1998 issued by the Agent, Girimint Colliery. The petitioner appeared before the Screening Committee and thereafter had been directed to report before the Area Medical Officer for medical examination vide letter dated 25.12.1998. Despite medical examination, he had not been offered employment. By letter dated 17.12.1999, the Superintending Manager, Girimint Colliery informed the petitioner of certain deficiencies and called upon him to meet the requirements for onward transmission of his claim to the competent authority. It is claimed in the petition that the requirements were met by the petitioner by producing relevant documents; yet, no action was taken.
Ultimately, by an order dated 4.7.2005, the petitioner was informed that the competent authority could not agree to his claim for employment on compassionate ground since on the date his father died, he was 16 years 1 month 26 days old. This order is the subject matter of challenge in the present petition.
Mr. Ganguly, learned Advocate representing the petitioner submitted that the ground on which the petitioner's claim has been rejected is not sustainable in law. According to him, employment on compassionate ground to a dependent of a deceased staff is offered in terms of provisions contained in the National Coal Wage Agreement (hereafter the NCWA) wherein no lower age limit for appointment has been specified. In this connection, he invited the attention of this Court to a Division Bench decision in Sujit Kora vs. Coal India Limited & ors., reported in 2002 (2) CHN 557 wherein it was held that a right had accrued in favour of the appellant to obtain employment in place of his deceased father in 1989 and that because of his tender age, he could wait for a reasonable length of time before enforcing that right. It was further held therein that the decision refusing to employ the appellant on the ground that he was 12 years old in 1989 suffered from an error apparent on the face of the record since that could not be considered to be a factor to disqualify him.
The decision in Mohan Mahato vs. Central Coalfields Ltd., reported in (2007) 8 SCC 549 was also relied on by him in support of his contention that once there is a settlement between the parties, which is valid and binding, the respondents acted in an arbitrary manner in refusing employment to the petitioner on a ground not traceable in such settlement.
Next, he relied on the decision in Syed Khadim Hussain vs. State of Bihar & ors., reported in (2006) 9 SCC 195 for the proposition that since the petitioner had attained majority on the date of rejection of his application on compassionate ground, he is entitled to be appointed.
Reliance was also placed on the decision of the Gauhati High Court in Khraijam Jasobanta Singh vs. State of Manipur & ors., reported in 1995 LAB I.C. 462 for the proposition that limitation to apply for appointment on compassionate ground would run from the date the applicant attained majority and not from the date of death of the Government servant.
An unreported decision of a learned Judge of this Court dated 28.11.2008 in W.P.2235 of 2005 (Sri Bablu Singh vs. Coal India Ltd. & ors.) was also referred to in support of the petitioner's claim.
Based on the aforesaid authorities, Mr. Ganguly prayed for an order on the respondents to offer compassionate appointment to the petitioner.
Mr. Kumar, learned Advocate for the respondents opposed the writ petition by contending that having regard to efflux of time since death of the petitioner's father, it cannot be claimed by him that employment on compassionate ground is still needed to tide over the financial crisis. According to him the petitioner, if at all he has any right of employment on compassionate ground under the NCWA, ought to have approach the Court within a reasonable period of his father's death for enforcement of such right. Not having approached the Court with expedition, it can reasonably be presumed that he was not in such a distressed condition that his survival was dependent on compassionate appointment being offered to him.
He relied on the decision in State of Manipur vs. Md. Rajaodin, reported in 2003 III CLR 963 for the proposition that long delay in making an application for compassionate appointment disentitles the applicant to have appointment.
An unreported decision of the Division Bench of this Court dated 20.2.2008 in F.M.A. No.182 of 2006 (Basudev Singh vs. Eastern Coalfileds Ltd. & ors.) was next relied on by him to contend that a stale claim for compassionate appointment merits rejection.
Another unreported decision of a learned Single Judge dated 19.7.2004 in W.P. No.19115(W) of 2003 (Smt. Arati Khawas and ano. vs. Coal India Ltd. & ors.) was then placed by him for my consideration. Therein, the concerned staff died in 1988 and the Court had been approached in 2003 against alleged inaction of the respondents in offering compassionate appointment. The Court declined relief on the ground of inordinate delay in seeking relief.
He, accordingly, prayed for dismissal of the writ petition. Learned Advocates for the parties have been heard and the decisions cited by them have duly been looked into. On a wholesome appreciation of the grievance voiced by the petitioner, I find no reason to interfere.
I am of the considered view that the decisions of the Apex Court in Umesh Kumar Nagpal vs. State of Haryana, reported in (1994) 4 SCC 138 and in Sanjay Kumar v. State of Bihar, reported in (2000) 7 SCC 192 are a complete answer to the contentions raised by Mr. Ganguly.
In Umesh Kumar Nagpal (supra), the Apex Court held that the whole object of granting compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. Further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and only if it is satisfied that but for the provision of employment the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz. relief against destitution. The Court sounded a caution in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more, destitute. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of death of the sole breadwinner, compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over.
In Sanjay Kumar (supra), the applicant for compassionate appointment being the petitioner was 10 years old when his mother died, while she was working as an Excise Constable. An application was made on 2.6.1988, soon after the death of his mother, seeking compassionate appointment. That was rejected on 10.12.1996 as time-barred. A fresh application was filed on 26.12.1996 and that was also rejected on 21.4.1997 for the same reason. Against the said order, the petitioner moved the High Court. The learned Single Judge of the High Court dismissed the writ petition on 24.8.1999 and the said judgment was affirmed by the Division Bench on 10.3.2000. Against that order Special Leave Petition had been preferred.
Strong reliance had been placed on behalf of the petitioner before the Apex Court on the decision of a learned Single Judge of the Patna High Court in Chandra Bhushan vs. State of Bihar, reported in (1997) 1 Pat LJR 626 (Pat). It was held in that case that an applicant's right cannot be defeated on the ground of delay caused by authorities which was beyond the control of the applicant. The decision in Director of Education (Secondary) v. Pushpendra Kumar, reported in (1998) 5 SCC 192 was also relied to on contend that even direction for creation of supernumerary posts can be given by Court.
While proceeding to dismiss the Special Leave Petition, the Apex Court observed as follows:
"3. We are unable to agree with the submissions of the learned Senior Counsel for the petitioner. This Court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the breadearner who had left the family in penury and without any means of livelihood. In fact such a view has been expressed in the very decision cited by the petitioner in Director of Education v. Pushpendra Kumar. It is also significant to notice that on the date when the first application was made by the petitioner on 2-6-1988, the petitioner was a minor and was not eligible for appointment. This is conceded by the petitioner. There cannot be reservation of a vacancy till such time as the petitioner becomes a major after a number of years, unless there are some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief.
4. We, are, therefore, unable to agree with the view expressed in Chandra Bhushan case."
(emphasis supplied) In the present case, the petitioner was a minor at the time his father died. He attained majority in June 1989. The date of application for compassionate appointment is not discernible from the writ petition. However, it appears that his claim was considered for the first time in August 1998 when the Agent, Girimint Colliery called upon him to appear before the Screening Committee on 31.8.1998. Thereafter his medical examination was conducted in December 1998. More than a year later, the Superintending Manager, Girimint Colliery asked him to remove deficiencies. Though it is claimed in the petition that the requirements were met by the petitioner by producing relevant documents, yet, he did not approach the Court alleging inaction of the respondents in offering appointment. Six years rolled by and ultimately in July 2005 the petitioner was told that he would not be given appointment on compassionate ground. More than 18 months later, the instant petition has been presented by the petitioner before this Court for quashing the impugned order dated 4th July, 2005.
Having regard to the facts and circumstances, the delay in approaching the Court appears to be the stumbling block for the petitioner to obtain relief. The respondents did not act on his application till 1998 and again from 1999 to 2005. The petitioner did have a right of his application being considered in accordance with law. He slept over his right. He has survived so long. By efflux of time the crisis, if any, which existed at the time of death of his father appears to have been overcome. To direct the respondent authorities to offer appointment to the petitioner more than 22 years after the death of his father would work out injustice to those innumerable youth who are still waiting to obtain public employment through regular process. Only because the petitioner's father died in harness would not clothe him with the right to steal a march over equally, if not more, meritorious and deserving candidates.
Mr. Ganguly has forcefully submitted that I am bound by the Division Bench decision in Sujit Kora (supra) and hence should follow it. I am, however, not in a position to agree.
In my view, the decision in Sujit Kora (supra) no longer has the efficacy of a binding precedent in view of the decision of the Apex Court in Sanjay Kumar (supra) which, according to me, has the effect of overruling it by implication.
The decision in Syed Khadim Hussain is now taken up for consideration. Paragraphs 5 and 6 thereof being relevant are quoted below:
"5. We are unable to accept the contention of the counsel for the State. In the instant case, the widow had applied for appointment within the prescribed period and without assigning any reasons the same was rejected. When the appellant submitted the application he was 13 years' old and the application was rejected after a period of six years and that too without giving any reason and the reason given by the authorities was incorrect as at the time of rejection of the application he must have crossed 18 years and he could have been very well considered for appointment. Of course, in the rules framed by the State there is no specific provision as to what should be done in case the dependents are minors and there would be any relaxation of age in case they did not attain majority within the prescribed period for submitting application.
6. As the widow had submitted the application in time the authorities should have considered her application. As eleven years have passed she would not be in a position to join the government service. In our opinion, this is a fit case where the appellant should have been considered in her place for appointment. Counsel for the State could not point out any other circumstance for which the appellant would be disentitled to be considered for appointment. In the peculiar facts and circumstances of this case, we direct the respondent authorities to consider the application of the appellant and give him appropriate appointment within a reasonable time at least within a period of three months. The appeal is disposed of in the above terms. No costs".
It is clear from a bare perusal thereof that relief had been granted by the Apex Court to the appellant in the peculiar facts of that case. His mother had applied for compassionate appointment within time. However, such application was rejected without assigning any reason. Thereafter, the appellant's application was also rejected. The exact reason for rejection of course is not discernible. The Court found that it was a fit case where the appellant's application merits consideration and he should be given appropriate appointment. The decision is more in the nature of one rendered in exercise of the Court's power under Article 142 of the Constitution.
Even if I am wrong in my reading of the decision in Syed Khadim Hussain (supra) and the same is one having the effect of a binding precedent under Article 141 of the Constitution, the decisions in Umesh Kumar Nagpal (supra) and Sanjay Kumar (supra) are equally binding on me. In such a situation where I am faced with binding decisions which apparently are in conflict and it is not possible to reconcile the same, I am free to prefer that decision of the Apex Court which in my view is better in point of law having regard to the decision of the Special Bench of this Court in Bholanath Karmakar & ors. vs. Madan Mohan Karmakar & ors., reported in AIR 1988 Cal 1. Since the decisions in Umesh Kumar Nagpal (supra) and Sanjay Kumar (supra) have not been noticed or considered in Syed Khadim Hussain (supra), I feel persuaded to be guided by those decisions which lay down the law that compassionate employment cannot be offered after long lapse of time and that in the absence of specific provision to the contrary, a vacancy cannot be reserved until the applicant attains majority.
The decision in Mohan Mahato (supra) does not lend any assistance to the petitioner. The principle on the basis whereof the Court ruled in favour of the petitioner is found in the following paragraphs of the decision:
"16. The period of six months' limitation prescribed in the Circular Letter dated 12-12-1995 was not statutory. It is also not imperative in character. Even for entertaining such an application beyond the period of six months, the headquarters of the Central Coal Field Limited is entitled to consider the facts and circumstances of each case. Admittedly, the appellant filed an application for grant of appointment on compassionate grounds when he was a minor. His application was rejected on that premise at the first instance but even at that point of time the respondent did not take a stand that the same had not been entertained on the ground that the same was filed after expiry of the period of six months.
17. It is neither in doubt nor in dispute that the case for grant of compassionate appointment of a minor was required to be considered in terms of sub-clause (iii) of Clause 9.5.0 of NCWA V. In terms of the said provision, the name of the appellant was to be kept on a live roster. He was to remain on the live roster till he attained the age of 18 years. The respondents did not perform their duties cast on them thereunder. It took a unilateral stand that an application had been filed in the year 1999 in the prescribed form. For complying with the provisions of a settlement which is binding on the parties, bona fide or otherwise of the respondent must be judged from the fact as to whether it had discharged his duties thereunder or not. In this case, not only it failed and/or neglected to do so, but as indicated hereinbefore it took a unholy stand that the elder brother of the appellant being employed, he was not entitled to appointment on the compassionate grounds. Thus, what really impelled the respondent in denying the benefit of compassionate appointment to the appellant is, therefore, open to guess. We expect a public sector undertaking which is "State" within the meaning of Article 12 of the Constitution of India not only to act fairly but also reasonably and bona fide. In this case, we are satisfied that the action of the respondent is neither fair nor reasonable nor bona fide."
The petitioner, in the present case, has not disclosed when the application for compassionate appointment was filed. Had it been filed when he was a minor, his name ought to have been entered in the live roster according to the terms of the applicable NCWA and his claim considered as and when he attained majority. Because of lack of information on this point which the petitioner should have provided, the respondents cannot be held guilty of not performing their duties. Quite apart, the point that arose for decision was whether in the absence of any provision in the settlement regarding the period for making an application for compassionate appointment, could such a period be fixed by a circular not having the force of a statute. The Court upheld the challenge and ruled against the Coalfields. That, however, is not relevant for deciding the point directly in issue here.
The decision in Bablu Singh (supra) reveals that immediately after death of his mother in August 1993 the petitioner had applied for compassionate appointment and was selected on an interview conducted in September 1994. Since the petitioner had approached the authority at the right time and met with response, the Court held that the authority concerned is not expected to shut the doors at a later point of time on the ground that the obligation is non-statutory. What is important and decisive is the distance of time between the date of the petitioner's father's death and the approach made for compassionate appointment, which tilts the scales against him.
The other Single Bench decision of the Gauhati High Court, in view of the decisions in Umesh Kumar Nagpal (supra) and Sanjay Kumar (supra), do not provide me the authority to grant relief as claimed by the petitioner.
On the contrary, the decisions in Md. Rajaodin (supra), Basudev Singh (supra) and Smt. Arati Khawas (supra) reiterate that compassionate appointment cannot be directed to be offered after long lapse of time.
For reasons aforesaid, the writ petition stands dismissed. However, parties shall bear their own costs.
Urgent photostat certified copy of this judgment, if applied for, be furnished to the applicant within 4 days from date of putting in requisites therefor.
(DIPANKAR DATTA, J.)