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Gujarat High Court · body

2018 DIGILAW 419 (GUJ)

Gopal Paul v. Indian Oil Corporation Ltd.

2018-02-06

A.Y.KOGJE, M.R.SHAH

body2018
JUDGMENT : M.R. SHAH, J. 1. Leave to amend the prayer clause. 2. By way of this petition under Article 226 of the Constitution of India the petitioner, an Ex-serviceman, has prayed for the following reliefs; (a) Your Lordship be pleased to issue a writ of mandamus and/or certiorari and/or any other writ, order or direction directing the respondent no.1 Corporation (IOCL) to issue necessary and requisite certification under the provisions of 14th August, 2014 – Government Memorandum, making him eligible for availing the benefit of ex-serviceman category while joining the respondent No.2 Corporation (ESIC) and direct respondent no.2 to provide employment in terms of appointment letter dated 05/01/2018. (b) Pending admission, hearing and final disposal of this petition, your Lordship be pleased to direct: (i) the respondent no.2 Corporation (ESIC) not to forfeit the candidature for employment of the present petitioner, offered to the petitioner through offer letter dated 05/01/2018, at Annexure E in Ex- Serviceman category, for the recruitment process commenced through advertisement at Annexure C, wherein the present petitioner applied for job on 21/12/2015. and (ii) the respondent no.1 Corporation (IOCL) to submit and place before the Hon’ble Court all those documents and/or undertakings submitted by the present petitioner which are lying with various offices of the respondent no.1 Corporation (IOCL) at the time of joining the civil employment in respondent no.1 Corporation. (c) Your Lordship be pleased to issue a writ of mandamus and/or any other writ, order or direction giving General Purpose Directions and/or Guidelines to all the Government Organizations (Central and State) to follow from the time of issuing the advertisement for the Civil Employment up to giving employment to the employees belonging to ex-serviceman category. 3. It is the case on behalf of the petitioner that the petitioner joined IOCL as an Ex-serviceman. It is also the case on behalf of the petitioner that simultaneously he also applied in ESIC and he has been selected and offered employment as per the order dated 05/01/2018. It is the case on behalf of the petitioner that as IOCL is not issuing any certification under the provisions of the Government Memorandum dated 14/08/2014 making him eligible for availing the benefit of Ex-serviceman, while joining respondent no.2 Corporation (ESIC) petitioner is not permitted to resume the duty by ESIC. 4. It is the case on behalf of the petitioner that as IOCL is not issuing any certification under the provisions of the Government Memorandum dated 14/08/2014 making him eligible for availing the benefit of Ex-serviceman, while joining respondent no.2 Corporation (ESIC) petitioner is not permitted to resume the duty by ESIC. 4. Having heard Shri Bhatt, learned advocate appearing on behalf of the petitioner and considering the Government Memorandum dated 14/08/2014, which has been relied upon by the petitioner, it provides in paragraph 4 as under; “4. The matter has, therefore, been considered in consultation with Department of Ex-servicemen, Ministry of Defence. It has now been decided that if an ex-serviceman applies for various vacancies before joining any civil employment, he/she can avail of the benefit of reservation as ex-serviceman for any subsequent employment. However, to avail of this benefit, an ex-serviceman as soon as he/she joins any civil employment, should give self declaration/undertaking to the concerned employer about the date-wise details of application for various vacancies for which he/she had applied for before joining the initial civil employment. Further, this benefit would be available only in respect of vacancies which are filled on direct recruitment and wherever reservation is applicable to the ex-servicemen.” 5. Therefore while applying in another establishment the only requirement is as per Clause 4 reproduced hereinabove. As such, no duty is cast upon the employer where he is serving to issue any certification as claimed by the petitioner. Even in the order of appointment dated 05/01/2018 in Clause vi it provides that if the petitioner is already employed, he should produce a relieving order, no objection certificate from the employer, failing which he will not be allowed to join and his candidature may be cancelled, and therefore, prima facie, it appears that any requirement even as per the appointment order is that the petitioner shall produce the reliving order, no objection certificate from IOCL, and therefore, after obtaining the relieving order, no objection certificate from the IOCL where the petitioner is working, if still the ESIC is not permitting the petitioner to join the duty as per the order of appointment dated 05/01/2018 it will be a fresh cause of action for which the petitioner is required to initiate appropriate proceedings against ESIC. In any case the petitioner has to first obtain the relieving order and no objection certificate from IOCL and has to produce the same with ESIC so that he can be allowed to join the duty by ESIC. As observed hereinabove, there is no requirement of any certification by IOCL as claimed/demanded by the petitioner. 6. With the above observation, the present petition stands dismissed.