Shiv Prashad Rajwade Vs South Eastern Coalfields Limited

1 - South Eastern Coalfields Limited Through Chairman Cum Managing Director, Office At Seepat Road, Post Box No. 60, District Bilaspur, Chhattisgarh.

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2 - General Manager Madhya Pradesh, South Eastern Coalfields, Limited, Office At Seepat Road, Post Box No. 60, District Bilaspur, Chhattisgarh.

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3 - Area General Manager, South Eastern Coalfields Limited, Bishrampur Area, Post Bishrampur Colliery, District Surguja Now Surajpur, Chhattisgarh. 4 - Area Personal Manager, South Eastern Coalfields Limited, Bishrampur Area, Post Bishrampur Collery, District Surguja Now Surajpur, Chhattisgarh 5 - Sub Area Manager, South Eastern Coalfields Limited, Kumda Sub Area, Bishrampur Area, Bishrampur, District Surguja Now Surajpur, Chhattisgarh 6 - Personnel Manager, South Eastern Coalfields Limited, Kumda Sub Area, Bishrampur Area, Bishrampur, District Surguja Now Surajpur, Chhattisgarh

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... Respondents

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For Petitioner	: Mr. Praveen Dhurandhar, Advocate
For Respondents	: Mr. Sudhir Bajpayee, Advocate

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Hon'ble Smt. Justice Rajani Dubey

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CAV Order

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The instant petition under Article 226 of the Constitution of India has been filed by the petitioner challenging the memo dated 06.12.2013 and letter dated 20/22.01.2014 issued by the respondent authorities whereby the claim of the petitioner seeking compassionate appointment, has been rejected.

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Brief facts of the case as mentioned in the petition are that the father of the petitioner namely Deoram Rajwade was working as category IV in Kumda Sub area, Bishrampur area of S.E.C.L. He died in harness on 15/10/2004. After the death of the sole earning member of the family, the petitioner's family suffered financial crises and continuously faced the problems in their livelihood, hence the petitioner who is a physically challenged person, immediately after the death of his father preferred application before the respondent authorities for his appointment on compassionate grounds vide his application dated 02/11/2004 (Annexure P/3). On the application of the petitioner, proposal for his appointment was sent by respondent No. 5 Kumud Sub Area to the concerned authority. The said application was causally dealt by the respondent authorities vide its memo dated 06/11/2006 (Annexure P/4) and in the light of the fact that the petitioner is physically handicapped person, his application was not properly appreciated as per the object of compassionate appointment and the

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said proposal was returned, thus the application of the petitioner seeking compassionate appointment remained undecided.

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The petitioner who is a physically challenged person continued seeking compassionate appointment from the authorities but the same was returned undecided, ultimately he again moved application in September, 2011 for reconsideration and upon which, some action was taken and the petitioner was requested by the authorities vide its letter dated 17/18.12.2011 (Annexure P/5) to submit his disability certificate, which was compiled by the petitioner. Subsequently, the highest authority i.e. respondent No. 2 vide its letter dated 16/04/2012 queried the post over which the petitioner could be granted compassionate appointment suitably, as he is a physically handicapped person. The same was replied by the respondent No. 3 vide its letter dated 12/15.05.2012 (Annexure P/6) stating that the petitioner is suitable for appointment on the post of Peon. Subsequently, respondent No. 3 issued letter dated 13/14.06.2012 (Annexure P/7) addressing the respondent no. 2 wherein the vacancy position of ward boy and peon for consideration of the employment of the petitioner on compassionate ground, was mentioned.

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The petitioner was continually approaching the authorities for consideration of his appointment on compassionate ground and in furtherance thereof, he wrote letter dated 12/09/2012 (Annexure P/8) addressing respondent No. 5 wherein he requested to forward his file to the concerned higher authority as his matter is pending for consideration since 2006. During the above proceedings, the question arose that the petitioner had moved his application for appointment on

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the ground of compassionate appointment with delay of more than 5 years which is a limitation prescribed under the circular dated 02/11/2001 ( Annexure P/9) for filing of application.

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On perusal of the circular, it would appear that the limitation for filing is five years, but the case can be reopened if there is justification for the same. In the instant matter, though this limitation would not apply as he without any delay in the year 2004 itself had moved application to the authorities and the same was remained undecided, even otherwise in the matter of the petitioner the authorities took decision to reconsider the case of the petitioner as the case of the petitioner had justified reasons, which is evident from the Note Sheet (Annexure P/10) of respondent No. 4/Area Personnel Manager.

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On 14.11.2013, the petitioner preferred a complaint before the Court of Chief Commissioner for persons with Disabilities under Persons with disabilities (equal Opportunity, protection of rights and full participation) Act 1995. Thereafter, the impugned memo dated 06/12/2013 was issued by respondent No. 2 addressing respondent No. 3 whereby the case of the petitioner for consideration with regard to compassionate appointment was denied as the same was filed with delay of more than 5 years and in consonance of the above memo the impugned memo dated 20/22.01.2014 was issued to the petitioner informing him that his appointment on compassionate ground cannot be considered as the application was filed with delay. Copy of the impugned memo dated 06/12/2013 and 20/22.01.2014 are collectively filed as Annexure P/1. Before passing the impugned memo, vide order dated 25.04.2014, the Court of Commissioner sought reply from the

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respondent authorities regarding the pending application of the petitioner and in compliance of the same, the reply was filed by the concerned respondent authority on 04.08.2014 and thereafter, the final order was passed vide order dated 22.01.2015 whereby the case of the petitioner was treated as closed. Hence, the petition has been filed by the petitioner for following reliefs:-

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“10.1 This Hon'ble Court may kindly be pleased to quash the impugned memo dated 06/12/13 and 20/22/01/2014 (Annexure P/1) by which respondent authorities denied to consider the claim of the petitioner for compassionate appointment on the ground that the claim has been made after 5 years from the death of the deceased employee.

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10.2 This Hon'ble Court may kindly be pleased to issue a direction to the respondent authorities to consider the application of the petitioner regarding compassionate appointment.

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10.3 Any other relief or reliefs that may be deemed fit and proper in the facts and circumstances of the case may also be kindly granted.”

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Learned counsel for the petitioner submits that the impugned memo dated 06.12.2013 and 20/22.01.2014 are arbitrary and illegal. The respondent authorities ought not to have denied considering the case of the petitioner for compassionate appointment on the ground of delay and laches. As per the petitioner, soon after the death of his father, he immediately field his application for compassionate appointment in 2004 itself. There was no delay as his application was pending since 2004 and even otherwise, the authorities took decision to reconsider the case as justified reasons were available, hence the impugned order is incorrect. The respondents authorities ought to have considered the

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petitioner for appointment on compassionate grounds as vacancy was available and suitable post was also available and all the requirements were fulfilled by the petitioner for the said appointment. The petitioner is a physically challenged person and the entire family is dependent upon him and his matter is pending since 2004 and therefore, he shall be considered for appointment on the compassionate ground.

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Per contra, learned counsel for the respondents strongly opposes the prayer of the petitioner and submits that the petitioner has earlier filed a case against the respondent authorities regarding denial of his compassionate appointment before the Court of Chief Commissioner under the Person with disabilities (Equal Opportunities Protection of Rights and full Participations) Act, 1995. The case of petitioner is registered as case No. 683/1011/2013 and the same has been dismissed /closed vide order dated 22.01.2015 (Annexure P/11) holding that "there is no provision of reservation while making appointments on compassionate ground". Learned Court of Chief Commissioner also found that there is no violation of any provision of the persons with Disabilities Act, 1995 or Government instructions in the matter and therefore the case is treated as closed. Hence, the case of the petitioner was considered by the court of law and examined the correctness, validity of the order of the respondent authorities and was found to be correct and the said order was not challenged by the petitioner before any other higher courts or authorities. Thus, the order passed by the Commissioner is final and binding to the parties. Thereafter, on same subject matter, the petitioner again filed this petition which is not maintainable and is liable to be dismissed on this ground alone. The instant petition is highly belated and thus is liable to

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be dismissed on the ground of delay and laches only.

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Admittedly, the father of the petitioner late Deoram Rajwade died on 15.10.2004. The petitioner has filed the present petition seeking compassionate appointment before this Court on 13.08.2015 i.e. almost after a period of 11 years. After the death of the deceased employee, petitioner has submitted the application on 02.11.2004 (Annexure P/3) seeking appointment on compassionate ground and claiming surface duty on the ground of his physical disability and the same has been considered by the respondent authorities according to the policy /rules of the company and after detailed examination, the competent authority found that deployment in surface job is not possible as per the rule / provision of the company and passed the order dated 06.11.2006 (Annexure P/4). The said order was duly communicated to the petitioner vide office letter No. 2976, dated 21.11.2006 (Annexure R/2). The said order has not been challenged by the petitioner before any court of law. Petitioner has kept silence for years. The order dated 06.11.2006 and letter dated 21.11.2006 are final and binding to the petitioner. However, after passing more than 8 years of the above order, petitioner has challenge the same before this Court by filing this petition on 13.08.2015 which is not maintainable on the ground of long delay and laches on the part of petitioner. Moreover after more than 7 years of the death of his father, the petitioner again submitted his application for obtaining compassionate appointment before the respondent authorities in the month of September, 2011 and there is no explanation or justification or any reasons assigned for filing the said application with such an inordinate delay of more than 7 years after the death of his father. Therefore, same has been returned to the

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petitioner on the ground of delay by passing the impugned order dated 06.12.2013 and letter dated 20/22.01.2014 (Annexure P/1) by the respondent authorities. Petitioner has challenged the same before this Court almost after passing 2 years of the above order by filing this petition on 13.08.2015. Petitioner’s complaint has been dismissed on 22.01.2015 by the Court of Chief Commissioner under the person with disabilities Act, 1995 (Annexure P/11) and after passing almost 7 months of the said order, petitioner has filed this petition on 13.08.2015 before this Court. It is evident that there has been delay throughout in pursuing the matter on the part of the petitioner and no any valid and sufficient reason or explanation, justification has been offered by the petitioner for such an inordinate delay, therefore, the petition is liable to be dismissed.

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To buttress his submission, he has placed reliance on the decision of Hon’ble Supreme Court in the matter of State of J & K and others vs. Sajad Ahmed Mir; (2006) 5 SCC 766, State Bank of India & Anr. Vs. Somvir Singh; 2007 AIR SCW 1571 and this Court’s judgment dated 19.01.2015 passed in Writ Appeal No. 10 of 2015 in the matter of Urila Singh & Another Vs. South Eastern Coalfields Limited & Others.

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Heard counsel for the parties and perused the material placed on record.

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It is an admitted position in this case that the petitioner’s father namely Deoram Rajwade was working under the respondent department and he died on 15.10.2004. It is also not disputed that the petitioner is a

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physically challenged person and he filed application for compassionate appointment on 02.11.2004.

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Respondent filed letter dated 20/21.11.2006 (Annexure R/2) by which the appointment was denied to the petitioner and for ready reference, the operative para of the said letter reads as under:-

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“……... इससम्बं�धेሰ �पु�नः�आपुको�अवगतकोरा�या�जा�त�है�किकोआቦኌ�तरा�जाग�राएव�आቦኌ��को

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�आवजा�्ቚ कोराोሥ" को�किनःरा�कोराोሥको�पुनः#ेሰ �किनःकिहैत्ቚ �वध�नः" एव�शत% को& अ�तग�तहै# किकोया�

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जा�त�है�।एव�को�पुनः# को& किनःयाेሰ�नः�स�राआቦኌ�तलड़को& को�सराफे& सपुरानः+कोरा# दे&नः�स�भवनःहै. है�।ेሰ �ቦኌसकोआቦኌ��कोेሰ �आवजा�ቦኌसफे�भ/तपु/व�कोेሰ�चा�रा# को& आቦኌ�तपुत्नः# को�है# दे&नः& को�्ቚ �वध�नः है�। भ/तपु/व�कोेሰ�चा�रा# को& आቦኌ�तपु�्ቔ एव�पु�्ቔ# को�ेሰ �ቦኌसकोआቦኌ��कोेሰ �आवजा�नःहै. किदेया�जा� सकोत�है�।"

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Petitioner filed application before Chief Commissioner for Person with disabilities (Equal Opportunities Protection of Rights and full Participations) Act, 1995 and as per letter dated 04.08.2014 (Annexure P/11), his application was not considered for appointment and as per letter dated 22.01.2015, his case was treated as closed. It is also clear that as per memo dated 06.12.2013 (Annexure P/1), petitioner was informed by the respondent authorities that the consideration of his application for compassionate appointment is not possible. Thereafter, the petitioner has filed the instant petition on 13.08.2015.

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In the matter of State of J & K and others vs. Sajad Ahmed Mir reported in (2006) 5 SCC 766 , Hon’ble Supreme Court held in para 10 as under:-

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“10. Having heard the learned counsel for the parties, in our opinion, the appeal should be allowed. Certain facts are not in dispute. The father of the applicant who was in service, died in harness in March 1987 and for the first time, the

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application was made by the applicant after more than four years i.e. in September 1991. The family thus survived for more than four years after the death of the applicant's father. Even at that time, the applicant, under the relevant guidelines, could not have been appointed and hence relaxation was prayed. It is no doubt true that the case of the applicant was favourably considered by the departments and recommendation was made, but it is also a fact which has come on record that in March 1996, a decision was taken by the authorities not to give appointment to the applicant on compassionate ground. From the affidavit-in-reply filed by the authorities in the High Court as also from the finding of the learned Single Judge, it is clear that the applicant had knowledge about rejection of his application in 1996 itself. Nothing was done by the applicant against the said decision. Considerable period elapsed and only in 1999, when there was some inter-departmental communication and the Administrative Officer informed the Chief Engineer vide a letter dated 8-6-1999 that the applicant could not be appointed on compassionate ground that the applicant woke up and filed a writ petition in the High Court. It is also pertinent to note that the letter of 1999 itself recites that the case of the applicant for compassionate appointment was considered and the prayer had already been turned down by the Administrative Department and the said fact had been communicated to the office of the Chief Engineer. A copy of the said letter was also annexed to the letter of 1999. In our

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opinion, therefore, the learned Single Judge was right in dismissing the petition on the ground of delay and laches by holding that the applicant had not done anything for a considerable period after March 1996 when his claim was rejected even though he was informed about the decision and was very much aware of it. The Division Bench, in our view, was not justified in setting aside the said order and in directing the authorities to consider the case of the applicant for compassionate appointment and by giving directions to give other benefits.”

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10.This Court in the matter of Urila Singh & Another vs. South Eastern Coalfields Limited & Others passed in Writ Appeal No. 10 of 2015 vide order dated 19.01.2015 observed and held in paras 6 and 7 as under:-

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“6. Compassionate appointment is given due to sudden loss by death of the bread winner of the family when no other source of income may be there. There is an inherent urgency in the matter. Even from the fact that the Appellants have survived by all these years and contested litigation also, leaves us satisfied that appointment on compassionate ground was no compelling necessity for them.

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The vacancy caused on the demise of an employee does not constitute his estate to be reserved for progeny as a matter of right. If the Appellant No. 1 was a minor and time ran out to apply during minority, we do not consider that he had any vested right to claim compassionate appointment.

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Any delay for staking a claim for compassionate appointment for reasons not attributable to the Respondents does not keep alive the issue for a claim to be considered for compassionate appointment after 20 long years. If there are any arrears or if no pension has been paid, let the Respondents consider the same in a accordance with law and pay the legitimate dues within a maximum period of three months from the from the date of receipt and/or presentation of a copy of this order.”

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11.Thus, in the present case also, it is evident that the date of death of the petitioner’s father was 15.10.2004 and petitioner had knowledge about rejection of his application in 2006 itself but he had not done anything for a considerable period after 2006. Thereafter, he again filed application in the year 2011 and when in the year 2013 by Annexure P/1, his application was not considered for appointment on the compassionate appointment, then he has filed the instant petition in 2015 with delay and no satisfactory explanation was offered by the petitioner for such delay.

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For the foregoing reasons, in the light of law laid down by Hon’ble Apex Court in the above referred decisions and the facts and circumstances of the case, this Court is not inclined to entertain this petition on the ground of delay and laches.

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Accordingly, the instant petition being sans of merit is liable to be and is hereby dismissed .

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Sd/-

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(Rajani Dubey) JUDGE

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Ruchi

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RUCHI YADAV Digitally signed byRUCHI YADAV

Shiv Prashad Rajwade v. South Eastern Coalfields Limited

Case brief

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Shiv Prashad Rajwade v. South Eastern Coalfields Limited

Case brief

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