22wp2190.10.odt 1 . IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No. 2190 of 2010 (Smt. Shantabai Mahadeo Borkar and anr. vs. The Ministry of Coal, Govt. of India and anr.) Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Coram: D. D. Sinha and A. P. Bhangale, JJ. Date : 02/02/2011. Heard Mr.V.D.Raut, Adv. for the petitioners, Mr.S.K.Mishra, Adv. for respondent no.1 and Mr.S.C.Mehadia, Adv. for respondent no.2. In the instant petition, the grievance of the petitioner is in respect of inaction on the part of respondent no.2/Western Coal Fields Ltd. in not giving employment on compassionate ground. The learned Counsel for the petitioner has submitted that, the father of petitioner was in the employment of the WCL and has expired on 24.3.1996. It is submitted that, though, as per the National Coal Wage Agreement No.V, the dependent at the time of death was required to be 15 years and above. It is submitted that, the older son of the petitioner Sudarshan, at the relevant 22wp2190.10.odt 2 . time, was 16 years of age and therefore, his name was kept on live roster for providing employment after attaining the age of 18 years. It is contended that Sudarshan is not mentally fit and therefore, the request was made to WCL to provide employment on compassionate ground to the younger son of the petitioner namely Vinay who, at the relevant time, was 13 years of age; however, the WCL has failed to provide employment. Hence, this petition. In order to substantiate his contention, reliance is placed by the learned Counsel for the petitioner on the decision of Jharkhand High Court reported in 2009 III CLR 364, Baby Kumari vs. Bharat Coking Coal Ltd. and Ors. Mr.S.C.Mehadia, Adv. for the WCL has not disputed that father of the petitioner was in the employment and had expired on 24.3.1996. It is submitted that, as per the National Coal Wage Agreement No.V, the age of dependent to be considered for providing appointment on compassionate ground at the time of death of their father was 15 years and above and therefore, the name of older son of the petitioner was kept on live roster to be considered for appointment after attaining the age of 18 years. It is submitted that the 22wp2190.10.odt 3 . younger son of the petitioner was only 13 years and therefore, could not be considered in view of a condition of the National Coal Wage Agreement No.V. Mr.S.C.Mehadia, Adv. for respondent no.2/WCL has further submitted that the second Wage Agreement is dt. 1.1.2000 wherein the condition of age of dependent was reduced to 12 years from 16 years. However, in the instant case, at the relevant time, the age of younger son was 13 years and therefore, for the reasons stated hereinabove, he could not be considered for providing employment. It is contended that the issue involved in the present petition is concluded by the decision of this Court in Writ Petition No. 3963 of 2008, dt. 20.11.2008. We have considered the contentions canvassed by the respective Counsel and perused the decision of this Court. In the instant case, it is not in dispute that, on the date of death of father of the petitioner i.e. 24.3.1996, the older son of the petitioner Sudarshan was 16 years of age and was eligible to be considered for grant of compassionate appointment and therefore, his name was kept on live roster. However, the younger son being less than 15 years of age at 22wp2190.10.odt 4 . that time, could not be considered by the WCL in view of the National Coal Wage Agreement No.V. The second National Coal Wage Agreement came into force from 1.1.2000 and therefore, the question of applying the same in case of younger son of the petitioner while considering the age does not arise since it was prospective in nature. Even otherwise, the controversy involved in this matter is no more res integra and is covered by the decision of this Court referred hereinabove in Writ Petition No. 3936 of 2008. In para seven of the judgment, this Court has observed as under : “ In the instant case, we have perused Clause 9.5.0 (ii) and (iii) and admittedly when the petitioner no.2 was not of the age of 12 years on the date of his father's demise, he could not be eligible for the benefit of compassionate appointment by keeping his name on the live roster. The submissions of Mr.Meghe that the monetary compensation was granted for the petitioner no.1 from 1.11.2000 and on that date, the petitioner no.2 had completed the age of 12 years and, therefore, it was necessary for the respondents to keep his name on the 22wp2190.10.odt 5 . live roster as eligible for compassionate appointment, is unsustainable. The case of the petitioner no.2 was required to be considered strictly as per the agreement terms, more particularly, Clause 9.5.0 (iii). In the case of Food Corporation of India v. Ram Kesh Yadav (JT 2007 (9) SCC 531), the Supreme Court stated, “there is no doubt that an employer cannot be directed to act contrary to the terms of its policy governing compassionate appointments. Nor can compassionate appointment be directed dehors the policy....”. Hence, we do not find any error committed by the respondent no.1 in denying the appointment on compassionate ground to the petitioner no.2.” In view of the above referred observations made by this Court, it is evident that the younger son of the petitioner was not eligible to be considered for grant of appointment on compassionate ground. The law declared by the Jharkhand High Court is not attracted so far as the present case is concerned, since the question of grant of employment would necessarily depend upon the age of dependent at the time 22wp2190.10.odt 6 . of employment. Hence no case is made out for showing indulgence. In the circumstances, the petition is dismissed. JUDGE JUDGE jais