Order on Board

Per Ramesh Sinha, Chief Justice

01.05.2024

1. Heard Mr. Vinod Kumar Deshmukh, learned counsel for the appellants.

Also heard Mr. P.M. Shriwas, learned counsel, appearing for the respondent on I.A. No. 02/2024 which is an application for condonation of delay of 2 days in filing the appeal.

2. On due consideration and for the reasons mentioned in the application, the same (I.A. No. 02/2024) stands allowed and the delay of 2 days in filing the appeal is hereby condoned.

3. The present intra Court appeal has been filed against the order dated

15.02.2024 passed by the learned Single Judge in WPS No. 9757 of 2023 (Ku. Kyushu Dhruw v. South Eastern Coal Field Limited and Others), whereby the learned Single Judge disposed of the writ petition filed by the writ petitioner directing the appellants/SECL to consider the claim of the petitioner for compassionate appointment and pass necessary orders subject to petitioner’s fulfilling other requirement of compassionate appointment within a period of three months.

4. Learned counsel for the appellant submits that the learned Single Judge ought to have considered the fact that the writ petition filed by the petitioner is liable to be dismissed on the ground of delay as claim of the petitioner has been rejected on 04.12.2020 and writ petition was filed on 11.11.2023 after more than 3 years and there is no jurisdiction or explanation submitted by the petitioner in respect of delay in filing the writ petition. The learned Single Judge ought to have considered the fact that as per NCWA Adopted Daughter is not included in the list of dependants in NCWA. No employee or no dependant of any Ex employee are entitled for any additional benefit beyond the scope of NCWA. There is no provision for dependent employment to the adopted daughter of the deceased employees in NCWA.

The learned Single Judge ought to have considered the fact that there is no illegality and perversity in the order/communication dated 04.12.2020 issued by the authority of SECL by which the claim of the petitioner has been rejected in accordance with the provision contained in Clause No. 9.3.0 of NCWA. The learned Single Judge also did not consider the fact that it is well settled law that the compassionate appointment is not a mode of recruitment and no body can claim the same as a matter of right by way of inheritance. Thus, the appeal deserves to be allowed and the impugned order is liable to be set aside.

5. On the other hand, learned counsel appearing for the respondent supports the impugned order.

6. We have heard learned counsel for the parties, perused the impugned order and materials available on record.

7. The learned Single Judge after hearing learned counsel for the parties and on the basis of materials available on record passed the impugned order. The operative portion of the impugned order reads as follows :

“6. Clause 9.3.3 of NCWA reads as under:-

“The dependent for this means the wife/husband as the case may be, unmarried daughter, sonand legally adopted son. If no such direct dependent is available for employment, brother, widowed daughter/widowed daughter-in-law or son-in-law residing with deceased and almost wholly dependent on the earnings of the deceased may be considered to be the dependent of the deceased.”

7. As per the Clause 9.3.3 of NCWA, adopted daughter is not entitled for any compassionate appointment but, this matter has already been dealt by Co-ordinate Bench of this Court in case of Miss Hamshikha Mallick (Supra). Dealing with the issue, it has been held by the Co-ordinate Bench of this Court in paragraph 27 which reads as under:-

“27. In the light of aforesaid decisions constitutional principles, exclusion of an adopted daughter like the petitioner in the present case from consideration for appointment on compassionate basis while at the same time including an adopted son as one of the dependents eligible for compassionate appointment, is based solely on gender discrimination and no other constit