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Judgment
Pranab Kumar Chattopadhyay, J.—Both the appeals have been preferred from the same judgment and order passed by the learned Single Judge in the writ petition being W. P. No. 9918 (W) of 1998 whereby and whereunder the said learned Single Judge disposed of the said writ petition upon observing that the respondents-Damodar Valley Corporation authorities upon giving opportunity to all the heirs of the deceased employee would be free to give appointment to the suitable person according to their choice. The learned Single Judge, however, directed that such consideration for appointment on compassionate ground should be made and appointment should also be given within a period of three months from the date of communication of the said order ignoring the age bar, if any. Scrutinising the available records we find that the second wife of the deceased employee, who filed the writ petition, applied before the competent authority of Damodar Valley Corporation for appointment of her daughter on compassionate ground on account of the untimely death of her husband, who was an employee of the said Damodar Valley Corporation and died in harness. The said application was rejected by the Damodar Valley Corporation and the Deputy Director of the said Corporation by written communication dated 29th November, 1995 advised the writ petitioner to apply afresh for appointment on compassionate ground for herself only in prescribed format. The aforesaid decision of the respondent authorities was challenged in the writ petition.
It also appears from the records that a Title Suit was filed in the court of the learned 2nd Munsif at Asansol and the heirs and the legal representatives of the deceased employee including the Damodar Valley Corporation were parties to the said Title Suit. The judgment and decree passed by the said learned Munsif in the said Title Suit was thereafter challenged in the appeal and the learned Appellate Court while upholding the said judgment and decree passed by the learned Munsif also granted liberty to the Damodar Valley Corporation authorities to appoint any of the heirs of the deceased employee as per rules. The said judgment and order of the lower appellate court must bind the parties to the proceeding including the Damodar Valley Corporation.
The son of the first wife of the deceased employee had filed a review application against the judgment and order passed by the lower appellate court and in view of the pendency of the said review application. Damodar Valley Corporation authorities did not take any decision for giving appointment to any of the heirs of the deceased employee. The Damodar Valley Corporation authorities filed affidavit-in-opposition in connection with the said writ petition wherein the aforesaid fact regarding pendency of the review application filed by the son of the first wife of the deceased employee was specifically mentioned. However, at the time of final hearing, of the writ petitioner it transpires that the said application for review has already been dismissed by the concerned learned court.
Since the said review application was dismissed, the learned Single Judge observed that there is no impediment on the part of the Damodar Valley Corporation authorities in considering the application for compassionate appointment. The learned Single judge, however, observed that all the heirs of the deceased employee should be given an opportunity by Damodar Valley Corporation authorities to compete for such appointment although the said authority upon considering the respective cases would be free to give appointment to the suitable person according to their choice. The learned Single Judge considering the peculiar facts of the case further observed that the age bar should he ignored while considering such compassionate appointment.
Mr. Banerjee, learned Counsel of Damodar Valley Corporation referred to the Office Memo dated 11th November, 2004 and submits that under the Modified scheme, compassionate appointment of the legal heirs of the deceased employee in the facts of the present case cannot be considered.
Mr. Malay Basu, learned Senior Counsel representing the writ petitioner, however, submits that the said Office Memo dated 10th November. 2004 cannot have any manner of application in the facts of the present case as the said Office Memo was not in existence at the time of disposal of the main writ petition.
Undisputedly, the order passed by the civil court in any proceeding shall bind the parties to the said proceeding. Therefore, the judgment and decree passed by the learned 2nd Munsif at Asansol in Title Suit No. 146 of 1991 and subsequently affirmed by the learned lower Appellate Court in Title Appeal No. 32 of 1993 upon granting specific liberty to the Damodar Valley Corporation to appoint any of the heirs of the deceased employee as per rules not only bind the said Corporation but the same also casts specific obligation upon the Damodar Valley Corporation authorities to appoint any of the heirs of the deceased employee as per rules and the said Damodar Valley Corporation authorities cannot avoid and/or ignore the aforesaid direction of the civil court, which has already become final and binding upon the parties to the said proceeding.
Mr. Basu also referred to the office Circular dated 17th July, 1984 issued by the Damodar Valley Corporation regarding appointment on compassionate ground wherein it has been specifically mentioned in Clause 14 that in case where there are than one dependant, order of preference will be indicated by the widow of the deceased employee, if alive, as the consideration for appointment is limited to only one dependant. Clause 14 of the aforesaid office circular dated July 17, 1984 is quoted hereunder :
"14. In case there are more than one dependant, order of preference will be indicated by the widow/widower of the deceased employee, if alive, as the consideration for appointment is limited to only one dependant. If widow/widower of the deceased employee is not alive, the preference may either go to the eldest son or eldest unmarried daughter who has attained the age of 18 earlier or whoever is considered more useful for the family."
In the present case, the widow of the deceased employee is undisputedly alive and therefore, the said widow, namely, the writ petitioner herein, should indicate the preference in the matter of offering employment on compassionate ground by the Damodar Valley Corporation. As a matter of fact, the widow of the deceased employee, namely, the writ petitioner by the written communication dated 29th September, 1995 informed the Director (HRD). Damodar Valley Corporation to appoint her eldest daughter. Smt. Mousumi Das on compassionate ground and thus, the said widow indicated her preference to the said Damodar Valley Corporation in the matter of employment on compassionate ground in terms of Clause 14 of the office order dated 17th July, 1984.
The learned Counsel of the Damodar Valley Corporation authorities referred to and relied on the subsequent Office memorandum issued by the Damodar Valley Corporation on November 10, 2004 in the matter of appointment on compassionate ground but. in our opinion, the said Office memorandum cannot have any manner of application in the facts of the present case as the same cannot have any retrospective operation.
By subsequent office memorandum and/or circular. Damodar Valley Corporation authorities can neither nullify the judgment and decree passed by the civil court nor can pray for variation and/or modification of the order passed by the learned Single Judge.
The learned Single Judge directed that the respondent authorities must give opportunity to all the heirs of the deceased employee to compete for such appointment but we are unable to approve the said direction of the learned Single Judge as the same would violate the order passed by the learned Judge of the lower appellate court in Title Appeal No. 32 of 1993. which has already become final and binding upon the parties to the said proceeding including the Damodar Valley Corporation herein. By the said order the learned lower appellate court granted specific liberty to the Damodar Valley Corporation to appoint any of the heirs of the deceased employee as per rules and according to the rules, which was operative at the relevant time, namely, the circular dated July 17, 1984. the widow-writ petitioner indicated her preference in favour of her eldest daughter and one of the heirs of the deceased employee, namely. Smt. Mousumi Das in the matter of appointment in the Damodar Valley Corporation on compassionate ground.
In the aforesaid circumstances, upon considering the judgment and decree of the learned 2nd Munsif at Asansol and subsequent judgment and order passed by the learned lower appellate court in Title Appeal No. 32 of 1993 and also considering the rules governing the appointment on compassionate ground, which was prevailing at the relevant time, namely, the office circular dated July. 17, 1984 issued by Damodar Valley Corporation, we hold that the Damodar Valley Corporation authorities should appoint Smt. Mousumi Das., the eldest daughter of the widow-writ petitioner and one of the deceased employee on compassionate ground in compliance with the order passed by the learned lower appellate court in Title Appeal No. 32 of 1993 in view of the preference indicated by the widow of the deceased employee, namely, the writ petitioner In favour of said Smt. Mousumi Das in terms of Clause 14 of the office circular dated 17th July, 19S4.
Accordingly, we direct the Damodar Valley Corporation and its authorities including the Chairman to appoint Smt. Mousumi Das. eldest daughter of the Widow and heir of the deceased employee on compassionate ground since she has been nominated by the said widow, namely, the writ petitioner in terms of Clause 14 of the said office circular dated July 17, 1984. without any further delay but positively within a period of three months from the date of communication of this order upon condoning the age bar. if any. in view of the peculiar facts of this case as a considerable time has already lapsed due to the pendency of various litigations.
Both the appeals thus stand disposed of. There will be. however, no order as to costs. Let urgent xerox certified copy of this judgment, if applied for. be given to the learned Advocates of the parties on usual undertaking.
Pranab Kumar Chattopadhyay, J.
I agree.