calcutta high court

Calcutta High Court: While determining the maintainability of the writ petition, preferred by the petitioners seeking compassionate appointment, without making trade unions as the respondent party, a single-judge bench comprising of Shekhar B. Saraf,* J., denied compassionate appointment to the petitioners due to a lack of financial dependency. The Court stated that providing false information and filing delayed applications further impact petitioner’s credibility. The Court also dismisses claims of non-maintainability, affirming the applicability of NCWA and the ‘State Authority’ status of CIL and ECL.

Factual Matrix

The respondent, Coal India Ltd. is a Government of India undertaking, and Eastern Coalfields Limited (ECL) is its subsidiary. An employee of ECL passed away on 26-05-2010, leaving behind petitioner 1 (deceased employee’s wife), petitioner 2 (son-in-law), petitioner 3 (married daughter) and a son. The wife initially applied for compassionate appointment for son-in-law, which was rejected by ECL on the grounds of exceeding the age limit. Subsequent applications for compassionate appointment by the wife and son-in-law were also rejected, suggesting they apply for monetary compensation instead.

The wife disputed the age allegations and submitted various documents indicating different ages for herself and her children. Petitioner 1’s son issued a no-objection certificate stating his disinterest in compassionate appointment and suggested it be given to petitioner 1. Further applications for compassionate appointment for the son-in-law were rejected, citing the existence of a direct dependent (the son) as the reason.

The wife subsequently requested a compassionate appointment for her married daughter, which was denied, citing certain prohibitions under the Mines Act and Mines Rule, as well as the absence of a provision for employment of a married daughter in NCWA-VI.

A writ petition was filed which resulted in an order instructing the Chairman, Coal India Ltd. to consider pertinent issues. The respondent and ECL filed review applications against this order, leading to the consideration of the petitioners’ claim by the Chairman-cum-Managing Director, ECL. The Director (Personnel), ECL eventually rejected the petitioners’ claim, citing various reasons, including age discrepancies, the presence of a direct dependent (the son), and voter cards indicating that son-in-law and daughter did not reside with the deceased. The petitioners filed a fresh appeal to the Chairman-cum-Managing Director, ECL, which went unanswered, leading to the current writ petition.

Petitioners’ Contentions

The petitioners contended that the impugned order considered son-in-law but neglected to address the eligibility of the married daughter, despite the prior court order instructing such consideration. It was contended that the son-in-law and daughter are still unemployed and reside with their mother. Both places are within the same constituency, and the son-in-law occasionally resides with his mother in the parental home.

The petitioners contended that the son-in-law is a dependent and has no income except LIC Commission and the son-in-law’s CMS Club Membership does not necessarily indicate significant income, and the family property cannot be considered income. It was contended that the age discrepancies claimed by the respondents were not admitted by the petitioners, and the respondents’ failure to address these discrepancies earlier is questionable.

It was contended that the term ‘unmarried’ preceding ‘daughter’ in Clause 9.3.3 of NCWA-VI is unconstitutional and violates Article 14 and 15 of the Constitution of India, as per precedents in other High Courts and the Supreme Court. Moreover, various constitutional articles and conventions support equal employment opportunities for married daughters and precedents in other cases suggest that a son-in-law can be considered a dependent for compassionate appointment.

It was contended that the Compassionate appointment is not a matter of recruitment but is governed by a scheme agreed to by the parties in NCWA and is a matter of right under the ‘die-in-harness’ category.

Respondents’ Contentions

The respondents contended that the petitioners failed to include trade unions, who are parties to the NCWA, as respondents, making the writ petition non-maintainable. It was contended that the wife of the deceased employee provided inconsistent information about her age, including discrepancies in various certificates and documents and the no-objection certificate from the son of the deceased employee only mentioned compassionate appointment for the deceased employee’s wife and not for the son-in-law and married daughter. Moreover, the age limits in NCWA-VI were correctly applied by the respondent authority, and deceased employee’s wife was advised to apply for Monthly Monetary Cash Compensation (MMCC) instead. The respondents further contended that compassionate appointment is not an absolute right, and it cannot be claimed after a lapse of 12 years.

Moot Point

  1. Whether compassionate appointment a vested right?

  2. Whether the distinction between ‘married’ and ‘unmarried’ daughter as per Clause 9.3.3 of NCWA-VI is ultra vires and is in violation of Article 14 and 15 of the Constitution of India?

  3. Whether direct dependents must also show dependency under Clause 9.3.3 of NCWA-VI?

  4. Whether petitioners 2 and 3 can be considered for compassionate appointment?

Court’s Assessment

  • Compassionate appointment is not a vested right

While examining Subhadra v. Ministry of Coal, (2018) 11 SCC 201, and rejecting the petitioners’ argument based on this judgment, the Court found that the judgment doesn’t explicitly state or imply that compassionate appointment is a vested right.

While analysing the legal principles regarding compassionate appointment, the Court cited Ipsita Chakrabarti v. State of W.B., , Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 and Union Bank of India v. M.T. Latheesh, (2006) 7 SCC 350, where the Supreme Court held that “compassionate appointment has to be exercised only in warranting situations and circumstances existing in granting appointment and guiding factors should be financial condition of the family.”

The Court emphasised that compassionate appointments are an exception to the general rule of merit-based recruitment and is based on schemes, executive instructions, and rules framed by the employer. The Court reiterated that compassionate appointment is not a vested or hereditary right, emphasizing its purpose to address immediate hardships faced by the family due to the death of the breadwinner.

  • Distinction between ‘married’ and ‘unmarried’ daughter as per Clause 9.3.3 of NCWA-VI is ultra vires and is in violation of Articles 14 and 15 of the Constitution of India.

While analysing the judgement in State of W.B. v. Purnima Das, 2017 SCC OnLine Cal 13121, extensively, the Court emphasised that the distinction between ‘married’ and ‘unmarried’ daughters lacks a rational nexus to the objective of providing compassionate appointment. The Court questioned the assumption that married daughters are not immediate family members after marriage, citing the inherent misogynistic bias in such a presumption. The Court also noted that this distinction has been criticized in Usha Singh v. State of W.B., 2003 SCC OnLine Cal 76, for violating Article 15 of the Constitution of India. The Court also highlighted the absurdity of debarring married daughters while allowing married sons to apply and stated that the principle that the consideration for compassionate appointment should be based on economic dependence, not the factum of marriage.

The Court held that the addition of ‘unmarried’ before ‘daughter’ in the relevant clause of NCWA is an arbitrary and sexist distinction, violating Articles 14 and 15 of the Constitution of India. The Court asserted that no application for compassionate appointment can be rejected based solely on the marital status of a daughter, emphasizing the importance of proving dependency as the primary condition for consideration. Consequently, the Court held that married daughters must be included in the category of direct dependents under Clause 9.3.3 of NCWA.

  • Direct dependents must also show dependency under Clause 9.3.3 of NCWA-VI

The Court asserted that compassionate appointment is contingent on financial exigency, citing Ankita Saha v. State of W.B., The Court emphasised that compassionate appointment is an exception to the general rule of public service appointments, intended to provide livelihood to the family left in penury after the death of the sole breadwinner.

The Court rejected the petitioners’ argument that direct dependents, under Clause 9.3.3 of NCWA-VI, need not demonstrate financial dependency, as it contradicts the humanitarian objective of compassionate appointment schemes. The Court affirmed the necessity of investigating financial dependency for direct dependents, aligning with the objectives of compassionate appointment schemes to provide immediate relief to families in financial crisis after the demise of the sole breadwinner.

  • Son-in-law and Married Daughter’s consideration for compassionate appointment

The Court observed that the son-in-law is employed with LIC, he is financially independent and did not fulfill conditions under Clause 9.3.3 of NCWA-VI for compassionate appointment as an indirect dependent. The Court upheld the decision to deny compassionate appointment to the son-in-law on the ground of lack of dependency on the deceased.

The Court asserted the unconstitutionality of the ‘married’ and ‘unmarried’ daughter distinction. The Court reiterated that there is need for direct dependents to show financial dependency and held that in the present case, the married daughter failed to prove financial dependency, as she is residing separately and had submitted false information. The Court held that the married daughter is ineligible for compassionate appointment.

Relevant Principles

  1. “Compassionate appointment is an exception to the general rule of merit-based recruitment where the objective of the appointment is to alleviate the immediate hardship faced by the family due to the sudden death of the sole breadwinner.

  2. While seeking compassionate appointment, an applicant must prove that there is a pressing need for such appointment, that she is a dependent of the deceased meeting the dependency criteria and that they possess the required qualifications.

  3. The application of a married daughter seeking compassionate appointment cannot be rejected solely on the ground that she is married. It must be assessed if the married daughter was dependent on the deceased employee.

  4. The impugned Clause 9.3.3 of NCWA-VI is ultra vires and is in violation of Article 14 and 15 of the Constitution of India.”

Court’s Decision

  1. The Court found that the petitioners lacked financial dependency and did not approach the court with clean hands.

  2. The Court denied compassionate appointment to petitioners 2 and 3.

  3. The Court rejected the argument of non-maintainability due to the absence of trade unions, emphasizing the binding nature of NCWA and the ‘State Authority’ status of CIL and ECL under Article 12 of the Constitution of India.

The Court did not find any infirmity in the impugned order of the Director (Personnel), ECL. However, the Court specifically directs the respondents to not discriminate married women and treat them under the first category of dependents in future.

Court’s Remark

The Court said that

“patriarchy does not exist solely in the mindset of an individual, rather it is taught since birth and rots in the existing structures of every country. The aforementioned policy is one of many where misogynistic beliefs about a woman’s dependency are accepted and promoted. It is the duty of the judiciary to act as social engineers, to investigate whether a policy’s distinction based on gender or marital status is a reasonable classification and rectify such abhorrent patriarchal inequities that exist within the legal structures of this country. Additionally, this Court would request the Government to look into such archaic laws/policies that adhere to the aforementioned misogynistic “natural” order of things, and amend the same in accordance with the equal gender principles in Article 14 of the Constitution of India.”

[Dipali Mitra v. Coal India Ltd., W.P.A. 14349 of 2018, order dated 06-09-2023]

*Judgment by Justice Shekhar B. Saraf

Advocates who appeared in this case :

Mr. Parth Ghosh, Mr. Amal Kumar Datta, Ms. Simran Sureka, Mr. Debashis Das, Counsel for the Petitioners

Mr. Shiv Shankar Banerjee, Ms. Sanchita Barman Roy, Counsel for the Respondents

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