Vaheeda Beevi K.M. v. Indian Rare Earths Ltd. and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN MONDAY, THE 19TH DAY OF MARCH 2012/29TH PHALGUNA 1933** ## **WP(C).No. 23991 of 2009 (T)** ## **----------------------------------** **PETITIONER(S) :** **---------------------** **1. VAHEEDA BEEVI K.M., W/O.THE LATE KAREEM K.K., KALLEPADATH HOUSE, ELOOR NORTH.** **2. P.A.RAZAK, PUTHANARACKAL HOUSE, NETTOOR P.O., ERNAKULAM DISTRICT.** **3. RIJOSH SEBASTIAN, VALIYAPARAMBIL HOUSE, VATTEKKUNNAM, EDAPPALLY NORTH.** **4. SANOBAR T.P., THEYYATHUMPARAMBIL, ELOOR NORTH, UDYOGAMANDAL.** **BY ADVS. SRI.K.BALACHANDRAN (MANGALATH) SRI.RAJESH NAIR SRI.BIJOY CHANDRAN** ## **RESPONDENT(S):** ## **------------------------** **1. THE INDIAN RARE EARTHS LTD.,** - **REP.BY ITS CHAIRMAN AND MANAGING DIRECTOR, VEER SAVARKAR MARG,NEAR SIDHI VINAYAK TEMPLE, PRABHADEVI, MUMBAI- 4000028.** **2. THE CHIEF GENERAL MANAGER, RARE EARTHS DIVISION, UDYOGAMANDAL-683501 ERNAKULAM DISTRICT.** **3. UNION OF INDIA, REP.BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF ATOMIC ENERGY,ANUSHAKTI BHAVAN, CSM MARG,MUMBAI-400001.** **NS** **2/-** **WP(C).No. 23991 of 2009 -2-** **4. K.R. SHIYAS, KARIMPINKADU HOUSE, UDYOGAMANDAL , ELOOR NORTH P.O., PIN. 683 501.** **5. PRASANTH, PALLATH HOUSE, KARUMALOOR P.O., THATTAMPADI, PIN. 683 511.** **6. K.V. RAJKUMAR, KIZHAKKEDATH HOUSE, THURAVOOR P.O., ANKAMALI, PIN. 683 580.** **R1 & R2 BY ADVS. SRI. E.K.NANDAKUMAR SRI. A.K.JAYASANKAR NAMBIAR SRI. K.JOHN MATHAI SRI. P.BENNY THOMAS R3 BY ADV. SRI. P. PARAMESWARAN NAIR, ASG OF INDIA. R4 TO R6 BY ADV. P. RAMAKRISHNAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-03-2012, ALONG WITH WPC. 12262/2010, WPC. 11080/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **NS** ## **WP(C).No. 23991 of 2009** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS :** **EXT.P1 : COPY OF THE MEMORANDUM OF SETTLEMENT DATED 11.07.1989.** - **EXT.P2 : COPIES OF THE IDENTITY CARDS ISSUED TO THE PETITIONERS 1 TO 3 BY THE ESI CORPORATION.** - **EXT.P3 : COPIES OF SOME OF THE CASUAL EMPLOYEE-PASSES ISSUED TO THE 3RD PETITIONER.** - **EXT.P4 : COPIES OF THE ANNUAL STATEMENT OF ACCOUNTS OF THE PETITIONERS 2 TO 4 IN THE EMPLOYEES PROVIDENT FUND SCHEME RELATING TO THE COMPANY.** - **EXT.P5 : COPY OF THE LETTER DATED 27.04.2005 OF THE MANAGEMENT ADDRESSED TO THE GENERAL SECRETARY OF THE IRE EMPLOYEES.** - **EXT.P6 : COPY OF THE ADMINISTRATIVE INSTRUCTION NO.938 DATED 6.10.08.** - **EXT.P7 : COPY OF THE LETTER DATED 30.10.2008 SUBMITTED BY THE TRADE UNION.** - **EXT.P8 : COPY OF THE LETTER DATED 31.12.2008 ISSUED BY THE MANAGEMENT.** - **EXT.P9 : COPY OF THE OFFICE MEMORANDUM DATED 5.05.03 ISSUED BY THE GOVERNMENT OF INDIA.** - **EXT.P10 : COPY OF THE REPLY/INFORMATION DATED 5.02.2009 ISSUED UNDER THE R.I. ACT.** - **EXT. P11: COPY OF THE REPLY/INFORMATION DATED 19.2.2009 ISSUED UNDER THE R.I. ACT.** - **EXT.P12 : COPY OF THE REPLY DATED 22.1.2009.** - **EXT.P13 : COPY OF THE MINUTES OF THE SETTLEMENT DATED 2.05.2005.** - **EXT.P14 : COPY OF THE LETTER/REPRESENTATION DATED 9.1.09 SUBMITTED BY THE PETITIONERS 2 TO 4 .** - **EXT.P15 : COPY OF THE JUDGMENT DATED 16.03.09 IN W.P.C. 1621/2009.** - **EXT.P16 : COPY OF THE DETAILED REPRESENTATION DATED 22.04.2009.** - **EXT.P17 : COPY OF THE ORDER DATED 9.07.09.** - **EXT.P18 : COPY OF THE LETTER DATED 9.10.2009 OF THE CENTRAL OUBLIC INFORMATION OFFICER AND DEPUTY GENERAL MANAGER(HRM).** ## **RESPONDENT(S) EXHIBITS :** **EXT. R4(A) : COPY OF LETTER DATED 21.10.2008 ISSUED BY THE 1ST RESPONDENT TO THE 6TH RESPONDENT'S MOTHER.** **NS 2/-** **WP(C).No. 23991 of 2009 -2-** **EXT. R4(B) : COPY OF REPLY DATED 5.11.08 GIVEN BY THE 6TH RESPONDENT'S MOTHER. EXT. R4(C) : COPY OF LETTER DATED 11.09.09 RECEIVED BY THE 4TH RESPONDENT. EXT. R4(D) : COPY OF LETTER DATED 11.09.09 RECEIVED BY THE 5TH RESPONDENT. EXT. R4(E) : COPY OF LETTER DATED 11.09.09 RECEIVED BY THE 6TH RESPONDENT.** **/ TRUE COPY /** **NS** **P.A. TO JUDGE** ## **K.SURENDRA MOHAN, J.** **-----------------------W.P(C). Nos.23991/2009,12262/2010 & 11080/ 2011** **------------------------** Dated this the 19[th] day of March, 2012 ## **JUDGMENT** The petitioners in these three writ petitions are all dependents of employees of the Indian Rare Earths Ltd., who died in harness. The petitioners had submitted applications for compassionate appointment. Though their applications were kept pending for a long time, the applications have now been rejected on the ground that they have remained pending for more than three years. According to the petitioners, the time limit of three years stipulated for consideration of the applications for compassionate appointments was not there at the time when the petitioners submitted their applications. Therefore, they contend that the said time limit cannot be applied to the applications submitted by them. 2. Since the claims raised by the petitioners in these writ W.P.(C) No. 23991/2009 & others **==> picture [7 x 9] intentionally omitted <==** petitions are all identical, they are considered and disposed of together by this common judgment. 3. The petitioners in WP(C).No.23991/2009 are dependants of four different persons. But, they have filed this writ petition together for the reason that as per Ext.P17 common order, their claims have been rejected by the Government. The first petitioner's husband Kareem died on 10.7.2003, the second petitioner's father Abdu died on 19.9.2001, the third petitioner's father Sebastian died on 8.12.2004 and the fourth petitioner's father Pareed died on 13.12.2002. Immediately thereafter, the petitioners submitted applications for compassionate appointments. Since there were no vacancies available at that time, the petitioners were not appointed but, were engaged as casual employees. They are still continuing in service as casual employees. The first petitioner has been engaged from 28.9.2003 onwards, the second petitioner from February, 2002, the third petitioner from January, 2005 and the fourth petitioner from January, 2003 onwards. The identity cards issued to them by the Employees State Insurance Corporation are produced as W.P.(C) No. 23991/2009 & others 3 Exts.P2 series documents. The identity cards issued to them as casual employees are produced as Exts.P3 series documents. As per Ext.P5, on 27.4.2005 they were also granted a wage hike in spite of the fact that they were continuing in service as casual employees. All this time, their applications for compassionate appointments were kept pending by the first respondent. 4. In the above circumstances, as per Ext.P6 Administrative Instruction No.938, a time limit of three years was introduced for making compassionate appointments. It has also been notified that wherever compassionate appointment is not possible, financial assistance in lieu of compassionate appointment as notified should be considered. In respect of all pending cases where compassionate appointments could not be made within three years from the date of death, in view of the conditions laid down by the Government of India, as a one time settlement, an additional amount of Rs.75,000/- over and above the existing financial assistance package was offered to be paid to the dependents subject to a further condition that the same was availed of within one month from the date of the said W.P.(C) No. 23991/2009 & others 4 instruction. Ext.P6 is dated 6.10.2008. Pursuant to Exts.P6, P8 proceedings were issued directing the first respondent to comply with the guidelines of the Government strictly. The proceedings of the Government of India on the basis of which Exts.P6 and P8 have been issued, is produced as Ext.P9. The petitioners, therefore, filed WP(C).No.1621/2009 challenging the above change of stand adopted by the first respondent. As per Ext.P15 judgment this Court disposed of the said writ petition directing the Government to take a decision in the matter. Accordingly, the third respondent considered the matter and by Ext.P17 proceedings rejected the contentions of the petitioners. The petitioners have filed this writ petition challenging Ext.P17. 5. The petitioners in W.P.(C) No.11080/2011 are persons similarly situated as the petitioners in the earlier writ petitions. The first petitioner's husband Mohammed died on 18/9/2003. The second petitioner's father K.Velayudhan died on 20/9/2002. The petitioners in this writ petition had also submitted applications for compassionate appointments within the prescribed time limit. However, they were also not appointed for W.P.(C) No. 23991/2009 & others 5 want of vacancies. Therefore, they were also given casual employment and they have been working continuously as casual employees. The first petitioner has been so working from 5/11/2003 while the second petitioner has been working from 23/11/2003 onwards. The petitioners herein also challenge the very same proceedings that are challenged in the earlier writ petition. 6. The petitioner in W.P.(C) No.12262/2010 is a person who belongs to a Scheduled Caste community. She is the widow of one K.N.Shaji who died on 6/6/2004. He was a helper under the first respondent. Immediately after the death of her husband though the petitioner had submitted an application for compassionate appointment, she was also not appointed for want of vacancies. However, she was granted an appointment as a casual labourer and she has been working on daily wages ever since. She had earlier approached this court by filing W.P. (C) No.35629/2009 which was disposed of on 13/1/2010 directing that her representation be considered by the second respondent therein. Accordingly, her representation was W.P.(C) No. 23991/2009 & others **==> picture [7 x 9] intentionally omitted <==** considered but has been rejected by Ext.P9. The petitioner challenges Ext.P9. The contentions of the petitioner in this writ petition are also identical to those advanced by the other petitioners. 7. According to the learned counsel for the petitioners, the first respondent company is a public sector undertaking. The company has a scheme for compassionate appointment which is Ext.P1. As per clause 3.1(c), it has been provided that in the event of an employee dying in harness, his/her dependent son or daughter(including adopted one) or spouse may be given employment depending on the qualifications, suitability etc. and subject to availability of suitable vacant posts and subject to specific request from the spouse of the deceased employee. A provision has also been made for a minor to submit such an application after attaining majority. Therefore, it is contended that there is a scheme for compassionate appointment which confers a right on the petitioners to be considered for such appointment. Since Ext.P1 does not stipulate any time limit within which the applications should be considered, it is W.P.(C) No. 23991/2009 & others 7 contended that it is not open to the first respondent to stipulate such a time limit at a later point of time. Further it is contended that since the petitioners had submitted their applications in time, there was no default on their part at any time. The only reason for not having appointed them earlier was because there were no vacancies available, since only 5% of the available vacancies are earmarked for compassionate appointment. The learned counsel for the petitioners also alleges that actually there were sufficient number of vacancies available and if a proper assessment had been made, they could have been appointed even on the basis of the quota set apart for such appointments. Therefore, it is alleged that the petitioners had not been appointed despite the availability of vacancies. At any rate, it is contended that the applications submitted by the petitioners are not liable to be rejected for the reason that they had remained pending for more than three years due to no fault on their part. The counsel for the petitioners also rely on Exts.P10 and P11 to contend that other applicants, whose applications were remaining pending for more than three years, W.P.(C) No. 23991/2009 & others 8 have been appointed without adhering to the three year time limit stipulated by the Government of India. It is contended that overlooking the seniority of the petitioners in making applications, respondents 4,5 and 6 have been appointed. The appointment of the 6[th] respondent has been made though his application had been pending for more than three years, it is alleged. 8. The learned counsel for the first respondent Company meets the contentions of the learned counsel for the petitioners by placing reliance on clause 1.4 of Ext.P1. Clause 1.4 mandates that compliance with the relevant Government Policies and directives on recruitment and promotion of workmen as a Public Sector Undertaking should be ensured. It is also pointed out that the obligation under clause 3.1(c) of Ext.P1 is not absolute in terms. The company has no absolute duty to provide employment to the dependent of an employee who dies in harness. The use of the words “ may be given employment” presupposes that there is no absolute right in an employee to claim such employment from the first respondent. Further in W.P.(C) No. 23991/2009 & others 9 view of clause 1.4 of Ext.P1 the management had to give effect to the change in policy of the Government relating to consideration of applications for compassionate appointments. The time limit of three years introduced by the Government of India also needed to be given effect to. It was for the above purpose that Exts.P6 and P8 were issued. Since Ext.P6 was issued on 6/10/2008, the time limit was enforced only with effect from the said date. The said date was taken as a cut off date for the purpose of rejecting those applications that were remaining pending for more than the stipulated period of three years. Since the pending applications were being rejected, a financial package was offered to the applicants computed on the basis of the length of service that would have been available to the deceased person till his superannuation. An additional lump sum payment of Rs.75,000/- was also offered to the dependents on condition that the same was availed within a period of one month from the date of Ext.P6. Calculated on the above basis as per the table given in the statements filed on behalf of the first respondent, each of the petitioners would have received amounts W.P.(C) No. 23991/2009 & others **==> picture [13 x 9] intentionally omitted <==** in excess of Rs. 4 Lakhs as lump sum payments. It is therefore, contended that no prejudice has been caused to the petitioners by the introduction of the time limit of three years by Exts.P6 and P8. 9. The learned counsel for respondents 4 to 6 in W.P.(C) No.23991/2009 adopts the contentions of the first respondent. In addition, it is pointed out that as far as respondents 4 and 5 are concerned, they are persons whose applications were valid even on the basis of the three years' time limit that is stipulated. In the case of the 6[th] respondent it is not disputed that he has been appointed in spite of the fact that, the time limit of three years had expired. This is for the reason that he could not be appointed earlier because W.P.(C) No.1621/2009 was pending before this Court. The said writ petition was disposed of on 16/3/2009 directing the Government Secretary to pass orders on the applications of the petitioners. Accordingly, Ext.P17 order was passed on 9/7/2009. Thereafter, the appointment of the 6[th] respondent was made on 11/9/2009. Therefore, it is contended that the said appointment is in order. W.P.(C) No. 23991/2009 & others **==> picture [13 x 9] intentionally omitted <==** 10. The learned counsel for the petitioners replies by pointing out that a total number of 60 vacancies had arisen during the period from 15/3/2005 to 31/12/2008, going by paragraph 4 of the statement filed on behalf of respondents 1 and 2 in W.P.(C) No.23991/2009. Therefore, 5% of the said vacancies would come to '3'. The said vacancies were in existence during the period from 15/3/2005 to 31/12/2008. If the said vacancies had been filled up during that period, the applications submitted by the petitioners would have been within the stipulated period of three years. Therefore, it is contended that it was due to the delay in making the appointments that the petitioners have been prejudiced. 11. I have considered the rival contentions of the contesting parties anxiously. 12. It is not in dispute that the petitioners are all dependents of employees who died in harness. It is also not in dispute that Ext.P1 is the Dying in Harness Scheme applicable to the petitioners. The fact that the petitioners had submitted applications for compassionate appointments well within the W.P.(C) No. 23991/2009 & others **==> picture [13 x 9] intentionally omitted <==** time limit is also not disputed. However, their applications were not allowed, since, according to the management, there were no vacancies available to appoint them. As per Ext.P1 only 5% of the vacancies are set apart for compassionate appointments. Therefore, depending on the availability of vacancies, persons who had submitted applications earlier in point of time to the petitioners got precedence in appointments. Consequently, the petitioners continued to remain in the list. However, as a gesture of compassion, the petitioners were employed as casual employees. They have been continuing as such. There is no threat of termination. It is in the above circumstances, that Exts.P6 and P8 proceedings have been issued in implementation of Ext.P9 policy of the Government. As per the new policy the applications of the petitioners cannot be considered. As a measure of compassion, the petitioners, whose applications have been pending for more than the stipulated period of three years, have been extended a financial package that would come to a total amount in excess of Rs. 4 Lakhs. However, the petitioners seek regular employment in preference to the financial package. W.P.(C) No. 23991/2009 & others **==> picture [13 x 9] intentionally omitted <==** Therefore, the question that arises for consideration is whether the petitioners have a right to insist that their applications for compassionate appointment should be considered in spite of the change in policy of the Government of India as evident from Ext.P9. 13. As rightly contended by the learned counsel for the petitioners, it is not due to any fault of the petitioners that their applications had remained pending for more than the stipulated period of three years. It is also true that applications for compassionate appointment can be considered only depending on the availability of vacancies and that too subject to the quota of 5% stipulated by Ext.P1. It is also to be borne in mind that compassionate appointments cannot be claimed as a matter of right because clause 3.1(c) of Ext.P1 uses the words ”may be given employment” instead of “shall”. However, in accordance with the terms of Ext.P1, the petitioners have a right to insist that their applications for compassionate appointment be considered by the authorities subject to the stipulations contained in clause 3.1(c) of Ext.P1. It is true that as per Ext.P9 there has W.P.(C) No. 23991/2009 & others **==> picture [13 x 9] intentionally omitted <==** been a change in the policy of the Government of India and a time limit of three years has been introduced. As per the new policy, any application for compassionate appointment that has remained pending for more than the stipulated period of three years is liable to be rejected. While implementing the above stipulation, it was necessary to make some provision for mitigating the rigour of the sudden change from the old policy to the new policy. It has to be borne in mind that there was no stipulation regarding the three years' period at the time when the petitioners submitted their applications. Therefore, the petitioners had a legitimate expectation that their applications would be considered in terms of the stipulations contained in Ext.P1 as and when vacancies arose. When the terms of Ext.P1 were altered in purported implementation of Ext.P9 to incorporate the change in policy of the Government of India, the interests of the petitioners and like persons, whose applications have remained pending for a number of years, should have been protected. Appropriate provisions for a smooth transition from the old rules to the new stipulations also should have been W.P.(C) No. 23991/2009 & others **==> picture [13 x 9] intentionally omitted <==** provided. Though it is pointed out by the learned counsel for the first respondent that a financial package was introduced for the said purpose,, the said financial package badly falls short of the expectation of the petitioners. 14. The Hon'ble Supreme Court has gone to the extent of laying down that in order to ensure compassionate appointment without delay, if necessary, even supernumerary posts have to be created. The observations of the Hon'ble Supreme Court in **Sushma Gosain v. Union of India (1989 (4) SCC 468 page** **471** is extracted hereunder; “We consider that it must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant.” W.P.(C) No. 23991/2009 & others **==> picture [13 x 9] intentionally omitted <==** 15. However, in these cases, the above dictum was only ignored. The question that came up before a Division Bench of this Court in **Bharat Sanchar Nigam Ltd. v. Tittin (2011 (4) KLT 409)** for consideration was whether in implementation of a new compassionate employment scheme the applications of the petitioners submitted under the old scheme could be rejected. This court held that the Rules subject to which a person had submitted his application could not be altered. It has been observed by the Division Bench at page 411 as follows; “We cannot support the denial of benefit under Compassionate Employment Scheme due to subsequent change of norms. Beneficial schemes are to be implemented as per the norms existing as on the date of application. In such cases, interpretation shall always be in favour of the beneficiary.” 16. In view of the above binding dictum, it has to be held that though the policy of the Government of India in Ext.P9 has certainly to be given effect to in terms of clause 1.4 of Ext.P1, the same cannot be effectuated by taking away the rights of the petitioners to claim compassionate appointments on the basis W.P.(C) No. 23991/2009 & others **==> picture [13 x 9] intentionally omitted <==** of the applications already submitted by them. It is not in dispute that the number of applications so available were only 13, out of which four have been already allowed and the applicants appointed, with only 9 remaining. Out of those 9, 5 are before me in these writ petitions. Since the time limit of three years was not available at the time when the petitioners had submitted their applications, such a time limit, that has the effect of invalidating their applications, cannot be introduced at a later point of time, as done in the present case. The applications of the petitioners would have to be considered on the merits in spite of the time limit that has been introduced especially in view of the fact that, it was not due to any fault on the part of the petitioners that their applications were not considered earlier. Since respondents, 4, 5 and 6 have already been granted appointments in the year 2009 and have been continuing in service as regular employees ever since, it is not necessary to disturb them at this length of time. At the same time, it is held that the applications submitted by the petitioners herein have to be considered on the merits, in terms of the stipulations W.P.(C) No. 23991/2009 & others **==> picture [13 x 9] intentionally omitted <==** contained in Ext.P1, irrespective of the time limit introduced by Exts.P6, P8 and P9. In the above view of the matter, Ext.P17 in W.P.(C) No.23991/2010 which is the same as Ext.P9 in W.P.(C) No.12262/2010 is liable to be set aside. 17. In the result, these writ petitions are allowed as follows; i). Ext.P17 in W.P.(C) No. 23991/2010 and Ext.P9 in W.P. (C) No.12262/2010 is set aside. ii). The first respondent is directed to consider the applications for compassionate appointments submitted by the petitioners in all these cases in accordance with the stipulations contained in Ext.P1, irrespective of the time limit stipulated by Exts.P6, P8 and P9 in W.P.(C) No.23991/2009. Sd/- ## ## **JUDGE** dpk W.P.(C) No. 23991/2009 & others 19