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2015 DIGILAW 1349 (GAU)

Samarjyoti Medhi v. Indian Oil Corporation Ltd.

2015-10-15

HRISHIKESH ROY

body2015
JUDGMENT 1. Heard Mr. P.K. Roychoudhury, the learned Counsel appearing for the petitioner. The respondent Indian Oil Corporation Limited (hereinafter referred to as “the IOCL”) and their officers are represented by Mr. N. Deka, who is the Standing Counsel of the Guwahati Refinery of the IOCL. BACKGROUND 2. The petitioner’s father Deben Chandra Medhi was an employee under the IOCL but he died-in-harness on 30.8.2005. When the employee died, “the IOCL Employee’s Superannuation Benefit Fund Scheme”, hereinafter referred to as “the Scheme” was in vogue in the IOCL, under which, inter alia, employment for eligible dependent children of the employee was envisaged. Time limit of three years from the date of death of the employee was prescribed for making such claim and after 3 years, the right of appointment lapses under the Scheme. 3. As the deceased employee was survived by his widow and 2 sons, the option for employment was initially sought for the elder son Amarjyoti Medhi. But unfortunately the elder son died and thereafter the widow applied to the IOCL on 3.4.2007 (Annexure-V) requesting employment for her younger son Samar Jyoti Medhi (writ petitioner). It was informed in the said application that the second son had appeared in the ITI Examination and is expected to secure the qualification criterion prescribed under the IOCL’s scheme. 4. The petitioner qualified in the trade of Fitter on 10.5.2007 and immediately thereafter, his mother applied for petitioner’s employment under the Scheme, through her application dated 12.6.2007 (Annexure-VII). However the IOCL through their letter dated 5.7.2007 (Annexure-IX), informed her that Samarjyoti Medhi is ineligible for employment since he has crossed 32 + years of age as on 12.6.2007, the date on which application for appointment was made under the Scheme. This communication however is not challenged in the case. The 2nd communication dated 26.11.2007 (Annexure-X) was then sent by the IOCL which stated that Samarjyoti having got married on 23.5.2006 was not a dependent family member and therefore his employment can’t be considered under the Scheme of the IOCL. This communication however is not challenged in the case. The 2nd communication dated 26.11.2007 (Annexure-X) was then sent by the IOCL which stated that Samarjyoti having got married on 23.5.2006 was not a dependent family member and therefore his employment can’t be considered under the Scheme of the IOCL. PETITIONER’S ARGUMENT 5.1 Assailing the legality of the rejection of his candidature, the petitioner refers to the IOCL’s letter dated 7.3.2007 (Annexure-IV) to project that the petitioner’s mother was informed earlier of the requirement of being possessed of qualification for being considered under the Scheme with further intimation that, the child should acquire the prescribed qualification within 7 years from the date of death of the employee. Therefore the learned advocate Mr. P.K. Roy Choudhury argues that the petitioner had qualified within the permitted time span of 7 years from the date of death of his father (30.8.2005) and hence his application for appointment under the Scheme, should have received positive consideration. 5.2 Questioning the legality of the rejection of the petitioner’s application on the twin ground of age bar and marital status, the learned Counsel cites the instances of five married applicants under the IOCL, who were appointed under the Scheme. The example of one Samir Maity, a married applicant who was appointed at age 33 years is also referred to by Mr. Roychoudhury, to allege discriminatory treatment against the petitioner by the State undertaking. 5.3 Adverting to the 6th December 2006 meeting of the Board of Trustees who operate the Scheme in the IOCL, the learned Counsel submits that married sons/daughters were excluded from the category of dependent only through the decision taken by the Board of Trustees on 6.12.2006 and therefore since the petitioner’s father died earlier on 30.8.2005, it is argued that the bar of marital status can’t be applied to the petitioner. Mr Roychoudhury reads the Inter Office Memo of 10.7.2007 to project that the amendment in the Scheme to exclude married applicants can’t be retrospectively applied for those, whose bread earner had died when the unamended scheme was applicable. RESPONDENTS ARGUMENTS 6.1 On the other hand, the learned Counsel Mr. Mr Roychoudhury reads the Inter Office Memo of 10.7.2007 to project that the amendment in the Scheme to exclude married applicants can’t be retrospectively applied for those, whose bread earner had died when the unamended scheme was applicable. RESPONDENTS ARGUMENTS 6.1 On the other hand, the learned Counsel Mr. N. Deka on behalf of the IOCL submits that the petitioner applied for appointment only on 12.6.2007 (Annexure-VII) and therefore he projects that the IOCL’s letter of 7.3.2007 (Annexure-IV) for securing qualification within 7 years, was meant for the elder son Amar Jyoti Medhi and not for the petitioner, whose application came after the IOCL’s letter of 7.3.2007. 6.2 The learned Counsel for the respondents refers to the beneficial nature of the Scheme which is intended to offer jobs as a rehabilitation measure for the eligible, suitable dependents of the IOCL employee and from that perspective, the respondents contend that the petitioner being a married and overaged person of 32 + years, on the date of application (12.6.2007), can’t be considered to be a dependent of the deceased employee. Moreover when the petitioner applied on 12.6.2007, he had already crossed the upper age bar of 32 years and therefore he was ineligible for employment meant as a rehabilitation measure, for the surviving family of the deceased employee. 6.3 To counter the argument of discrimination, advocate Mr. N. Deka refers to the averments in paragraph 19 of the IOCL’s counter affidavit to project that the concerned married appointees were all within the permissible age of appointment whereas the petitioner was over-aged even on the date of application. In so far as the appointment of Samir Maity is concerned, it is pointed out that when his case was forwarded to the Headquarters on 2.2.2006, he was below 32 years of age and since the delay had occurred during the process of consideration, the qualified candidate was appointed as a onetime measure, although he was 33 years of age on the date of appointment. 6.4 Referring to the eligibility clauses in the Scheme, Mr. Deka for the IOCL submits that an applicant must fulfill the stipulated criteria of being eligible and dependent and only then, as a rehabilitation measure for the surviving family, his case can be considered for appointment under the Scheme. DISCUSSION 7. 6.4 Referring to the eligibility clauses in the Scheme, Mr. Deka for the IOCL submits that an applicant must fulfill the stipulated criteria of being eligible and dependent and only then, as a rehabilitation measure for the surviving family, his case can be considered for appointment under the Scheme. DISCUSSION 7. When the petitioner’s father Deben Chandra Medhi (employee) died on 30.8.2005, married person were not specifically kept out of the purview of the expression “dependent” mentioned in the Scheme and the marital status was made a relevant factor only through the amendment of the Scheme, made in the Trustee’s meeting of 6.12.2006. Moreover there are instances of onetime measure being adopted in the IOCL for appointing at least 5 persons under the Scheme, although they were married at the time of appointment. Therefore according to me the non-consideration of the petitioner for his marital status, as informed by the IOCL on 26.11.2007 (Annexure-X), can’t be accepted as a good ground for rejection of the petitioner’s claim. 8. The next question is whether the petitioner despite crossing the age bar of 32 years, should be considered for employment under the Scheme. The IOCL’s letter dated 5.7.2007 (Annexure-IX) whereby the petitioner was considered ineligible for crossing the upper age limit on the date of application (12.6.2007) is not under challenge but nevertheless the legality of the said letter is being examined to determine whether the petitioner was eligible for appointment under the Scheme. 9. In order to secure rehabiliatory employment under the Scheme, an applicant must be eligible and it is not disputed that the petitioner secured the eligibility criterion only on 10.5.2007. But but by that time, he had crossed the age bar of 32 years. But while overage can be a valid reason for rejecting an applicant, the IOCL appointed Samir Maity, although he was 33 years of age at the time of appointment. Therefore it has to be examined as to whether the petitioner too is entitled to similar treatment. But the distinguishing feature between the two applicants is, when Samir Maity applied and when his case was forwarded to the Headquarter on 2.2.2006, he was qualified and below 32 years of age. Only because his case was kept pending in the Head Office, the IOCL felt obliged to appoint Samir Maity even though he was 33 years old by the time he was appointed. Only because his case was kept pending in the Head Office, the IOCL felt obliged to appoint Samir Maity even though he was 33 years old by the time he was appointed. The case of the petitioner and Samir Maity in my perception are not on the same footing in as much as the petitioner was already over aged when he secured the qualification on 10.5.2007 and therefore on the date of application (12.6.2007), the applicant was clearly ineligible for appointment. Or in other words, the petitioner secured the eligibility qualification only after he crossed the upper age limit. However Samir Maity unlike the petitioner, was eligible and within age, when he applied for consideration. Hence I find no merit in the discrimination argument of the petitioner. 10. Appointment for dependent of deceased employees of the IOCL is a rehabilitation measure to provide opportunities of appointment to eligible dependent children of the deceased employee and it does not create an automatic right of appointment. To put it differently, no vested right of appointment emanate out of the Scheme without the applicant being in possession of all the eligibility norms prescribed thereunder. 11. It can’t also be overlooked that rehabiliatory appointment for dependent children under the Scheme is not the general mode of recruitment in the organization and the objective of the scheme is intended to mitigate the hardship to the family, on account of the sudden death of the bread earner. If the Scheme is examined from this perspective and when we notice the fact that family’s bread earner had died on 30.8.2005, it is clear enough that the survivors coped with the sudden crisis and thus no justification is seen here for dispensing with normal mode of recruitment, 10 years after the death of the employee. 12. Moreover the Scheme also provides for guaranteed service benefits for a period of 15 years to the spouse of the deceased employee of the IOCL and in this case the petitioner’s mother is receiving such financial benefit since her husband died on 30.8.2005. Therefore the dependents of the deceased can’t be said to be under any serious financial hardship for the loss of their bread earner. Therefore the dependents of the deceased can’t be said to be under any serious financial hardship for the loss of their bread earner. Hence this Court finds no justification to direct consideration of the petitioner’s rehabiliatory appointment under the Scheme, as no such claim for appointment can subsist for the petitioner, when his father died ten years back on 30.8.2005. 13. Because of the above reasoning, this case is found devoid of merit and hence the same is dismissed by leaving the parties to bear their respective cost of this proceeding.