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Judgment
This appeal has been preferred against the judgment and order dated 28.1.2009 passed by the learned Single Judge in W.P. (S) No. 247 of 2009, by which the representation of the Petitioner/Appellant herein claiming compassionate appointment in place of his mother was rejected.
The Petitioner''s father, who admittedly was an employee of B.C.C.L., Gobindpur Colliery, on the post of Fireman, expired on 29.1.1987 while he was in service. After his death, the Petitioner''s mother on an application made by her was offered an appointment by the Management of the Respondent-B.C.C.L. as the Petitioner admittedly was a minor at the time of the death of his father. The Petitioner''s mother declined to accept the job of Wagon-Loader as she herself stated that she was incapable and would not be capable to discharge the duties as Wagon-Loader being handicapped.
The Petitioner''s mother had filed a representation before the Respondent in the year 1996 and submitted that as she was not capable of discharging duties of Wagon-Loader, she should be granted compassionate appointment by way of an alternative employment in place of a Wagon-Loader. The representation remained pending for long but was never responded. The Petitioner''s mother repeated her representation by filing a fresh one in the year 1998 and on this occasion, she requested that as she was not in a position to discharge the duties of a Wagon-Loader, her son who had attained majority by that time i.e. in the year 1998, should be offered the appointment. The representation did not meet with any response from the B.C.C.L. for more than a decade and the Petitioner, therefore (sic) another representation in the year 2008 to the authority concerned, but no heed was paid to this one also, and finally the Petitioner filed a writ petition before the learned Single Judge claiming that the compassionate appointment was neither granted to her mother, nor to him and the same still is pending as no order of rejection has been passed on the same. As already stated, the learned Single Judge was pleased to reject the writ petition and hence, this appeal.
Learned Counsel for the Appellant in support of the appeal submitted that the Petitioner''s mother was not in a position to discharge the duties of Wagon-Loader and therefore, her request to offer appointment on compassionate ground to her son in the year 1998 when he attained majority, ought to have been responded favourably by offering appointment to her son as the representation has not been rejected so far by a speaking order and the same is still pending before the Respondent authorities.
However, on consideration of the entire facts and circumstances, it is not, possible to overlook the fact that the Petitioner at the time of the death of his rather was a minor and the offer of compassionate appointment was granted to the mother of the Petitioner which she refused, but at the same time, we also cannot ignore that when any offer of compassionate appointment is made by the employer to the employee, it is certainly expected of the employer to offer an employment which the dependent is capable to discharge. In the instant matter, the Petitioner''s mother was a lady of 32 years and it was physically not possible for her to discharge the duties of Wagon-Loader being a handicapped (as appears prime facie from the annexures). Obviously, the intention will have to be attributed to the employer that the offer of appointment of Wagon-Loader was purposely offered to the mother of the Petitioner to create a condition of impediment so that she could not avail the benefit of compassionate appointment. Even the medical examination of the mother of Petitioner was not conducted despite her appearance on the appointed date and time. The employer''s conduct, therefore, in offering the appointment of Wagon-Loader to the mother of the Petitioner also cannot be appreciated even if it were to be accepted that the Petitioner who was a minor in the year 1987 could not seek appointment on compassionate ground in place of his father. Thus, while on the one hand, the Petitioner could not have claimed compassionate appointment in the year 1987 on the ground of his minority, denial of appointment by the employer to the mother of the Petitioner seeking compassionate appointment, who was granted an offer of appointment as a Wagon-Loader also appears to be a situation created with an oblique motive, so that she could not accept the appointment as the same was physically not possible. In that event, the representation of the Petitioner''s mother obviously amounted to rejection of her claim seeking compassionate appointment.
Thus, although the Petitioner''s claim for appointment is highly belated as he raised his claim for compassionate appointment after attaining majority in the year 1998, the fact remains that the Petitioner''s mother although was entitled for compassionate appointment after the death of her husband when she was only 32 years of age, the conduct of the employer, who offered an appointment with impossible condition to discharge duties as Wagon-Loader, was merely, to deprive her the benefit of compassionate appointment. Thus, the Petitioner''s case although cannot be accepted for claiming compassionate appointment, the circumstance under which he raised the claim of compassionate appointment in lieu of her mother, has surely got a grain of substance for the reason recorded herein before.
We are informed that the Petitioner''s representation is already pending before the authority on which they have yet not passed any reasoned order, but it is quite possible to infer that not passing an order for eleven years on the representation of the Petitioner''s mother ought to be treated as a case of rejection but in the facts and circumstances of this case, the denial of appointment to the mother of the Petitioner obviously appears to be on oblique action on the part of the Respondent-employer, which, for the- reasons stated herein before, cannot be appreciated.
We, therefore, dispose of this appeal with a direction to the Respondent-Management to consider the case of the Petitioner considering the fact that the Petitioner''s mother was denied compassionate appointment without any reason as she was offered an appointment which she was physically incapable to discharge. If her representation had been rejected on the ground that they had no alternative employment to accommodate her on any suitable post, the matter would have been on a different footing in so far as the Respondent-employer''s case is concerned. But the Respondent-employer, instead of rejecting her claim for compassionate appointment on account of any reason, which might have been prevalent at that time, thought it appropriate to reject the application of the Petitioner''s mother on an altogether non-existent ground which did not speak well of the Respondent-employer as it definitely leads to an inference that an offer of appointment was made by one hand but was snatched away by the other hand.
In view of this unsavory situation, we direct the Respondent-B.C.C.L. to consider the case of the Petitioner in the light of the facts and circumstances which dragged this litigation to such long number of years where the element of compassionate appointment got converted into a situation of grueling torture missing out that compassionate appointment is not meant for torture of the dependent claiming compassionate appointment. If the employer had rejected the offer of appointment with clean hands, the matter perhaps would have been different as already indicated hereinbefore, but to offer an appointment by imposing condition so as to deprive its benefit to the claimant is certainly not a happy situation to be appreciated specially by a Court of law.
We, therefore, direct the Respondent to consider the case of the Appellant in the light of the facts and circumstances recorded hereinbefore and pass a reasoned order on the representation of the Petitioner specially taking the background of the matter into consideration as also the observation of this Court. If the authorities come to a conclusion that the offer of appointment was denied to the mother of the Petitioner purposely and with a motive to deprive her of the job, we are of the view that the Petitioner should be treated as having succeeded in making out a case of compassionate appointment in his favour, so as to claim the appointment.
The appeal, accordingly, is disposed of.