- (1.) ONE Giria Kamin, who was under the employment of M/s. Central Coalfields Limited died in harness on 1.12.1996. Thereupon, the petitioner being eldest son of Giria Kamin applied for his appointment on compassionate ground on 31.8.1998. Thereafter the Personnel Manager, Kuju Siding, Kuju Area, Respondent no.5 asked the petitioner, vide his letter dated 29.5.2001 to submit explanation for delayed submission of the application for his appointment. Pursuant to that, petitioner submitted his explanation stating therein that at the time of death of his mother, he was minor and as such, some delay occurred in filing the application. Thereupon, the Personnel Manager (M.P), Central Coalfields Limited Darbhanga House, respondent no.3, vide his letter no.599 dated 16.3.2002 (Annexure 4/1) rejected the claim of the petitioner for his appointment on compassionate ground, which order was intimated to the petitioner by the Staff Officer (Personnel), respondent no.4, vide his letter dated 14.8.2002 ( Annexure 4). Being aggrieved with that order, the petitioner has preferred this writ application. Learned counsel appearing for the petitioner submits that under the National Coal Wage Agreement VI, there has been no stipulation of any time limit for the submission of the application, though subsequently, the Chairman -cum -Managing Director, Central Coalfields Limited, respondent no.1 came forward with different circulars firstly, with the stipulation of filing application of appointment within six months, secondly, with the stipulation of one year and lastly, with the stipulation of 18 months but, those stipulations regarding time limit never appears to be mandatory, rather under the National Coal Wage Agreement VI, respondent was obliged to keep roster of the applicant aged about 15 years and above alive till he attains the majority. But the respondent, without having regard of the said provision, rejected the claim of the petitioner simply for the reason that the application has been filed after one and half year of the death of his mother which is quite illegal. A counter affidavit has been filed on behalf of the respondents stating therein that claim of the petitioner was rejected as the application has been filed after one and half year of the death of his mother and one of the brothers of the petitioner is under employment. Thus, the question falls for consideration as to whether the petitioner, in the facts and circumstances, is entitled to have employment under the scheme of compassionate ground ? There would be no denying of the legal situation that the authority is required to consider the request for compassionate appointment only in accordance with the scheme framed by it and no discretion as such is left with any of the authority to make compassionate appointment dehors the scheme. The claim for compassionate appointment and the right, if any, is traceable only to the scheme, executive instructions, rules, etc. framed by the employer in the matter of providing employment on compassionate ground. There is no right of whatsoever nature to claim compassionate appointment on any ground other than the one, if any, conferred by the employer by way of scheme or instructions as the case may be. The aforesaid proposition of law has been laid down by the Honble Supreme Court in the case of State Bank of India vs. Somvir Singh [(2007) 4 SCC 778]. The aforesaid proposition of law leads me to take note of relevant provision of the National Coal Wage Agreement which deals with the matter relating to appointment of compassionate ground. Sub -clause (iii) of Clause 9.5.0 of the National Coal Wage Agreement lays down the provision with regard to employment to the dependants of the worker, who dies while in service which reads as follows: " In case of death either in mine accident or for other reasons or medical unfitness under Clause 9.4.0, if no employment has been offered and the male dependant of the worker concerned is 15 years and above in age he will be kept on a live roster and would be provided employment commensurate with his skill and qualifications when he attains the age of 18 years. During the period the male dependant is on live roster, the female dependant will be paid monetary compensation as per rates at Paras (i) and (ii) above.  Subsequently, the respondents came forward with a circular dated 12.12.1995 whereby time limit for filing application for compassionate appointment was prescribed as six months from the date of death of the deceased employee. By another circular dated 1.1.2002, the period for filing application of six months was relaxed by 12 months giving retrospective effect from February, 2000. By another circular dated 16.9.2003, the period for filing application by the dependants of the deceased was further extended from 12 months to 18 months which was given retrospective effect from 27.11.2002.
(2.) IN spite of the circular being issued prescribing the time limit the agreement as contained in sub -clause (iii) of Clause 9.5.0 of National Coal Wage Agreement VI never gets frustrated as settlement within the meaning of sub -section (3) of Section 18 of the Industrial Disputes Act is binding on both the parties and continues to remain in force unless the same is altered, modified and substituted by another settlement. I have already noticed that no period of limitation has been provided in the settlement. It is assumed that the respondents had jurisdiction to issue such circular prescribing a period of limitation for filing application for grant of appointment on compassionate ground but such circular can never be said to be operative in exclusion to the settlement entered into in between the parties as the workman in terms of section 2(s) of the Industrial Disputes Act would have right to be appointed on compassionate ground , subject, of course, to compliance with other conditions. The case of grant of compassionate appointment of a minor was required to be considered in the light of settlement as enunciated under clause (iii) of Clause 9.5.0 of National Coal Wage Agreement VI. The aforesaid proposition of law has been laid down by Honble Supreme Court in case of Mohan Mahato vs. Central Coal Fields Limited and others [(2007) 8 SCC 549] In that view of the matter, the name of the petitioner was to be kept on live roster. He was to remain on the live roster till he attained the age of 18 years but the respondents without performing the duties cast upon them rejected the claim of the petitioner on the ground that the application had been filed after one and half year of the death of his mother. The other ground for rejection as per counter affidavit is that other brother of the petitioner is in employment but under the impugned order it was never the ground and as such it would not be open for the respondent to take such plea. It does appear that when the respondents asked the petitioner to submit his explanation about the delayed submission of the application for compassionate appointment, the petitioner did submit his reply stating therein that on the death of his mother, he was a minor. Under this situation, when such disclosure was made, the authority should have kept the name of the petitioner on live roster in terms of sub -clause(iii) of Clause 9.5.0 of the National Coal Wage Agreement VI instead of rejecting the claim of the petitioner and as such, the orders as contained in Annexures 4 and 4/1 certainly appear to be quite illegal, arbitrary and hence the same are set aside. Since the matter is to be considered in the light of the discussion made above, this matter is being remitted back to the concerned authority for passing a fresh order in accordance with law within a period of two months from the date of receipt/production of a copy of this order. Accordingly, this application is allowed.;