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Madras High CourtWP(MD)/5199/2014dismissed

R. Srivathsan v. The Management Of

2017-12-11Honourable Mrs Justice V.Bhavani Subbaroyan7 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESERVED ON : 05.12.2017 DELIVERED ON : 11.12.2017

CORAM:

THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN W.P(MD)Nos.5199, 5208, 5337 and 7647 of 2014 1.W.P(MD)No.5199 of 2014:- 1.R.Srivathsan 2.K.Arumugasamy 3.V.Sivaguru 4.V.John Peter ... Petitioners vs.

1.The Management of Bharat Heavy Electricals Limited, Rep. by its Chairman and Managing Director, BHEL Corporate Office, Siri Fort, New Delhi - 110 049.

2.The Executive Director, Bharat Heavy Electricals Limited, Tiruchirappalli - 620 014.

3. The Senior Manager/HR, (Recruitment and Systems), Bharat Heavy Electricals Limited, Tiruchirappalli - 620 014.

4. The General Manager, Bharat Heavy Electricals Limited, Tiruchirappalli - 620 014.

... Respondents PRAYER:- Writ Petition is filed under Article 226 of the Mandamus, directing the respondents to appoint the petitioners in the post of Artisan Grade - IV in Electrician Trade. For Petitioners : Mr.T.Antony Arul Raj For Respondents : No appearance

2.W.P(MD)No.5208 of 2014:- Nethaji BHEL Ex-Apprentice Association, Rep. by its Secretary, J.John Armstrong ... Petitioner vs.

1. Bharat Heavy Electricals Limited, Rep. by its Chairman and Managing Director, BHEL Corporation Office, Siri Fort, New Delhi - 110 049.

2. The Executive Director, Bharat Heavy Electricals Limited, Tiruchirappalli- 620 014.

3. The Senior Manager/Human Resource (Recruitment and Systems), Bharat Heavy Electricals Limited, Tiruchirappalli - 620 014.

4. The General Manager, Bharat Heavy Electricals Limited, Tiruchirappalli - 620 014.

5.The Deputy General Manager, (HR-Welfare-Recruitment), Bharat Heavy Electricals Limited, Tiruchirappalli - 620 014.

... Respondents PRAYER:- Writ Petition is filed under Article 226 of the Mandamus, directing the respondents to consider the members of the petitioner's Association for the purpose of absorption in their respective trade of welder/fitter/mechanist/turner etc., as Artisan Grave - IV in accordance with their age, experience and qualification in regular time scale of pay, on par with similarly placed persons covered by the orders, dated 14.05.2008 passed in W.A.Nos.685 to 687 of 2007 in respect of the vacancies available with respondent's Corporation.

For Petitioner : Mr.R.Chakkaravarthy For Respondents : No appearance 3.W.P(MD)No.5337 of 2014:- C.Emmanuel Devaraj ... Petitioner vs.

1. The Management, Bharat Heavy Electricals Limited, Tiruchirappalli ... Respondent PRAYER:- Writ Petition is filed under Article 226 of the Mandamus, directing the respondent to appoint the petitioner in the post of Fitter to be filled up by the respondent as per their Employment Notification No.294, dated 01.04.2012. For Petitioner : Mr.K.Gokul For Respondent : No appearance 4.W.P(MD)No.7647 of 2014:- Balakumaravel ... Petitioner vs.

1. The Management of Bharat Heavy Electricals Limited, Rep. by its Chairman and Managing Director, BHEL, Corporate Office, Siri Fort, New Delhi - 110 049.

2. The Executive Director, Bharat Heavy Electricals Limited, Tiruchirappalli - 620 014.

3. The Senior Manager/HR, (Recruitment and Systems), Bharat Heavy Electricals Limited, Tiruchirappalli - 620 014.

4. The General Manager, Bharat Heavy Electricals Limited, Tiruchirappalli - 620 014.

... Respondents PRAYER:- Writ Petition is filed under Article 226 of the Mandamus, directing the respondents to appoint the petitioner in the post of Artisan Trade - IV in Fitter grade. For Petitioner : Mr.K.Hariharan For Respondents : No appearance

COMMON ORDER These Writ Petitions have been filed under Article 226 of the Mandamus, directing the respondents to appoint the petitioners in the post as mentioned in the Writ Petitions.

2.The petitioners herein have obtained National Trade Certificates in Electrician and upon completion of the said course, the petitioners enrolled themselves with the Employment Exchange.

The petitioners were sponsored for undergoing apprenticeship training with BHEL and successfully completed their apprenticeship training. During the relevant period, BHEL had a recruitment policy of absorbing the apprentices. A number of apprentices from the previous batches were absorbed by the BHEL management. Due to ban on recruitment and other factors, there was no absorption after a particular period. Aggrieved by the same, a number of Non Muster Roll Employees filed petitions before the competent authority seeking a declaration that they were entitled to permanency status and they were allowed. Subsequently, they were also absorbed by the management. But, later the trainee apprentices were not inducted by the BHEL contending that the petitioners are not having any right and this was questioned by an Association of Apprentices.

Their Writ Petition was allowed by an order, dated 14.05.2008 in W.P(MD)No.9639 of 2007. The said Writ Petition was taken up along with W.A.No.685 of 2007 filed by the Management. Aggrieved by the said order, the management filed a review petition. The review was dismissed. Challenging the same, Civil Appeal Nos.10815 and 10816 of 2013 was filed. When the matter was taken up for final hearing, the management as well as the counsel for BHEL Ex-Apprentice Association, Trichy, agreed for a consent order. The management undertook to absorb those members of the Association who were below 40 years of age as on 05.11.2007. The Civil Appeals were disposed of on that basis. 3.The petitioners were informed that they should await the outcome of the case filed by the BHEL management in the Supreme Court.

The case in the Supreme Court ended only on 05.11.2007. Therefore, the petitioners were constrained to file these Writ Petitions.

4.It is further stated by them that the Supreme Court order in Civil Appeal Nos.10815 and 10816 of 2013 is a consent order and cannot be a precedent and it is not open to the management to confer benefit on some and discriminate against others. Hence, the petitioners are entitled to claim on the basis of the order, dated 14.05.2008 in W.P(MD)Nos.7657 of 2007 etc., batch. BHEL is a Central Government undertaking and it has to act as a model employer and it has to follow an even policy. The recruitment policy was amended only in the year 2006. The petitioners belonged

to various batches. The amendment made later cannot affect their case. The case of the petitioners would transcend the provisions of the Apprentice Act, 1961. The petitioners have submitted representations to the respondent seeking absorption, but those representations were not considered.

5.Heard the learned counsel for the petitioners. 6.It is brought to the notice of this Court that a batch of Writ Petitions were filed, who have completed apprenticeship training in Bharat Heavy Electrical Limited (BHEL), claiming appointment in permanent regular service in Bharat Heavy Electrical Limited for various posts. The very same prayer is also sought for in this Writ Petition.

7.In the batch of Writ Petitions mentioned above, namely in W.P(MD)Nos.6656 of 2005 etc., batch, (R.Subbiah Vs. The Management of BHEL Rep. by its Chairman and Managing Director), this Court by an order, dated 04.08.2014, after considering the issue involved in those Writ Petitions in detail, has held that the conduct of the respondent/Management need not provide employment to the petitioners is based on factual and legal basis. It was further held that the respondent/Management cannot be said to have adopted different yardstick insofar as the petitioners are concerned and the present set of petitioners cannot get any preference in employment as claimed by them.

8.In this context, reference can be made to paragraph Nos.24 and 25 of the order, dated 04.08.2014, is as follows:- "24.As the conduct of the respondent management in not providing employment to the petitioners is thus based on factual and legal basis as explained above, the respondent Management cannot be said to have adopted different yard stick insofar as the petitioners are concerned and the present set of petitioners cannot get any preference in employment.

At this juncture, the learned counsel for the petitioners has by relying on the following Judgments, contended that when the similarly placed apprentices were already given employment either under Section 12(3) Settlement or on the strength of the consent order passed by the Hon'ble Apex Court, there is absolutely no reason to deny the same to the present set of petitioners: (i) 1991 Supp (2) SCC 294 (Ashish Mathur Vs. Oil and Natural Gas Commission and others); and (ii) 2011 (4) LLN 354 (DB) (Mad) (The Chairman, Tamil Nadu Electricity Board and another Vs. D.Venkatesan and another). However, the same are not applicable to the facts of the present case.

longer available to the present petitioners and as there was ban on recruitment during the relevant period and as the recruitment policy was also changed due to the guidelines issued by the judiciary as well as executive, the question of extending the same benefit to the petitioners herein does not arise. Considering the then prevailing circumstances, the petitioners herein cannot be now permitted to say that they have the right of legitimate expectation of employment in the respondent BHEL. 25.One more ground on which the learned Senior Counsel for the respondent BHEL opposed the petitioners' claim for employment is that they are over aged.

The learned Senior Counsel for the respondent BHEL management has, by relying on the following Judgments reiterated that the management cannot be called upon to violate its own Rules and Regulations in the matter of recruitment: (i) (2006) 8 SCC 671 (Kendriya Vidyalaya Sangathan Vs. Sajal Kumar Roy); and (ii) (2011) 3 SCC 436 State of Orissa Vs. Mamata Mohanty. In both the cases, the Hon'ble Apex Court following the earlier decisions, is of the view that "the power of relaxation cannot be exercised in such a manner that it completely distorts the Regulations and it is intended to be used in marginal cases where exceptionally qualified candidates are available and it is not intended as an 'open sesame' for all and sundry....." "In the absence of an enabling provision for grant of relaxation, no relaxation can be made.

Even if such a power is provided under the statute, it cannot be exercised arbitrarily and such a power cannot be exercised treating it to be an implied, incidental or necessary power for execution of the statutory provisions. Even an implied power is to be exercised with care and caution with reasonable means to remove the obstructions or overcome the resistance in enforcing the statutory provisions or executing its command. Incidental and ancillary powers cannot be used in utter disregard of the object of the statute." 9.It is further held in the order, dated 04.08.2014, that the claim of the petitioners are factually and legally unsustainable and they are not entitled to claim any relief and the Writ Petitions are dismissed.

10.In the light of the above decision rendered by this Court, while dismissing the identical prayer sought for by the petitioners therein, the relief sought for in these Writ Petitions

cannot be granted. Accordingly, these Writ Petitions are dismissed. No costs.

Sd/- Assistant Registrar(CS-I) /True Copy/ Sub Assistant Registrar + 1 cc TO Mr.T.Antony Arulraj, Advocate in SR No. 92324 ps AE/MR KKR/SAR3/21.12.2017/7P/2C Order made in W.P(MD)Nos.5199, 5208, 5337 and 7647 of 2014 11.12.2017