Research › Search › Judgment

Uttarakhand High Court · body

2013 DIGILAW 352 (UTT)

SUNIL KUMAR v. BHARAT HEAVY ELECTRICALS LTD.

2013-06-19

Sudhanshu Dhulia

body2013
JUDGMENT Hon’ble Sudhanshu Dhulia, J. (Oral) 1. Heard Mr. Tapan Singh, Advocate for the petitioner and Mr. V.K. Kohli, Senior Advocate assisted by Mr. I.P. Kohli, Advocate for the respondents. 2. The father of the petitioner died in harness while he was working as Artisans-I in the Bharat Heavy Electricals Ltd. (hereinafter referred to as BHEL). The petitioner being the dependant of the deceased employee moved an application dated 22.08.2006 for appointment on compassionate ground. In response to the application of the petitioner, the Deputy Manager, BHEL, Rudrapur informed him that his application for compassionate appointment would only be considered in the event the vacancy occurs in the unit. Thereafter, the BHEL issued an advertisement dated 03.09.2011 calling for eligible candidates for appointment, inter alia, on the post of Welder. There were 10 posts of Welder for the dependants of deceased employees. The petitioner was the sole applicant under the dying in harness quota. The petitioner appeared in the selection process, but he has not been selected. Hence the present petition. 3. The case of the petitioner is that firstly he was liable to be appointed on compassionate ground without going through a selection process. Although, he faced the selection process in which he qualified the written test and thereafter appeared in the interview, yet he has not been selected. Learned counsel for the petitioner relied upon Clause 6.2 of the BHEL Recruitment Rules, which reads as under :- “6.2 Dependents of deceased employees General guidelines to be followed for direct employment on compassionate grounds are as under: 1. Employee dying due to accident “during the course of” and “arising out of employment” – In such eventualities, existing practice of consideration on case to case basis for sanction of vacancy (USW/SSW/Artisan or Clerk) will continue keeping in view that none of the children or the spouse of such employees is already employed in Govt./Semi Govt./Autonomous Body/PSU/Organizations listed on Stock Exchange. Such appointment will, however, be subject to assessment of suitability. 2. In other cases of death (i) In other cases, whenever Units are sanctioned vacancies of USW/SSW/Artisans and Clerk, up to 25% vacancies may be earmarked for being filled up from dependants of deceased employees (Spouse/son/unmarried daughter) subject to their meeting the job specifications and consideration for suitability. Such appointment will, however, be subject to assessment of suitability. 2. In other cases of death (i) In other cases, whenever Units are sanctioned vacancies of USW/SSW/Artisans and Clerk, up to 25% vacancies may be earmarked for being filled up from dependants of deceased employees (Spouse/son/unmarried daughter) subject to their meeting the job specifications and consideration for suitability. If number of vacancies sanctioned are so low that it is difficult to adopt above criteria for reserving vacancies, decision in this regard may be taken by the Unit Incharge. In addition this consideration is available provided none of the children or the spouse of such employees is already employed in Govt./Semi Govt./Autonomous Body/PSU/Organizations listed on Stock Exchange.” 4. According to Mr. V. K. Kohli, Senior Advocate for the BHEL, the case of the petitioner was not liable to be considered under Clause 6.2 (1), as the death of petitioner’s father was not “during the course of employment” or “arising out of employment”. He could only have been considered under 6.2 (2). 5. After hearing the submissions of learned counsel for the parties, the Court is of the opinion that it cannot be denied that the father of the petitioner died while in harness. In any case, the petitioner’s case is liable to be considered under Clause 6.2 (2), by which 25% vacancies have been earmarked for being filled up from dependants of deceased employees. It is an admitted fact that out of the total vacancies (i.e. ten posts), 25% vacancies of the same (i.e. at least 2 posts) are reserved for the dependants of deceased employee. It is also admitted that the petitioner was the sole candidate, who applied as dependant of deceased employee. Therefore, the petitioner was liable to be given appointment on compassionate ground as the petitioner after qualifying the written test appeared in the interview, however, he was not declared successful in the interview. In the counter affidavit, it has been stated that the petitioner got 9.45 marks out of 75 marks in the written test and 19 marks out of 25 marks in the interview, therefore, the performance of the petitioner in these tests was much below, hence, he was not selected. In the counter affidavit, it has been stated that the petitioner got 9.45 marks out of 75 marks in the written test and 19 marks out of 25 marks in the interview, therefore, the performance of the petitioner in these tests was much below, hence, he was not selected. This Court finds that there seems to be arbitrariness in as much as it is admitted position that the BHEL did not prescribe the minimum cut off marks in the written test or in the interview. After conducting the written test, the petitioner was called for the interview. Therefore, considering the fact that it is not the case of the BHEL that there were better eligible candidates than the petitioner under the dying in harness quota and other candidates, who belonged to dependant of a deceased employee, who gave a better performance than the petitioner. In fact, the petitioner was the sole applicant for the post of Welder as dependant of the deceased employee. Therefore, the candidature of the petitioner should have been considered for the post of Welder under the dying in harness quota. The action on the part of the BHEL for not considering the candidature of the petitioner is arbitrary, hence violation of Article 14 of the Constitution of India. The writ petition is hereby allowed. A mandamus is issued to the respondents directing them to give appointment to the petitioner as a dependant of deceased employee, within eight weeks from the date of production of a certified copy of this order. 6. No order as to costs.