IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 16TH MARCH 2009 / 25TH PHALGUNA 1930 WP(C).No. 1621 of 2009(R) ------------------------------------ PETITIONER(S): ---------------------- 1. P.A. RAZAK, PUTHANARACKAL HOUSE, NETTOOR.P.O., ERNAKULAM DISTRICT. 2. RIJOSH SEBASTIAN, VALIYAPARAMBIL HOUSE, VATTEKKUNNAM, EDAPPALLY NORTH. 3. SANOBAR. T.P., THEYYATHUMPARAMBIL, ELOOR NORTH, UDYOGAMANDAL. BY ADV. MR.K.BALACHANDRAN (MANGALATH) MR.RAJESH NAIR MR.BIJOY CHANDRAN RESPONDENT(S): ------------------------- 1. THE INDIAN RARE EARTHS LTD., REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, VEER SAVARKAR MARG, NEAR SIDHI VINAYAK TEMPLE, PRABHADEVI, MUMBAI-4000028. 2. THE CHIEF GENERAL MANAGER, RARE EARTHS DIVISION, UDYOGAMANDAL 683 501, ERNAKULAM DISTRICT. 3. UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF ATOMIC ENERGY, GOVERNMENT OF INDIA, NEW DELHI. R3 BY ADV. MR.P.PARAMESWARAN NAIR,ASST.SOLICITOR R2 BY ADV. MR.E.K.NANDAKUMAR R2 BY ADV. MR.A.K.JAYASANKAR NAMBIAR R2 BY ADV. MR.K.JOHN MATHAI R2 BY ADV. MR.P.BENNY THOMAS R2 BY ADV. MR.ANIL D. NAIR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ T.R.RAMACHANDRAN NAIR, J -------------------------------------------------- W.P.(C) No. 1621 of 2009 --------------------------------------------------- Dated this the 16th day of March, 2009 JUDGMENT The petitioners are at present working as Casual Employees (Helper Grade) under the first respondent company. They are seeking for appointment under the Scheme available for dependants of the former employees of the company who died while in service. 2. The first petitioner is the son of the late P.K.Abdu who died in harness on 19.09.2001. The late V.J.Sebastian, father of the second petitioner died in harness on 08.12.2004. The date of death of the late P.B.Pareed i.e. father of the third petitioner is 13.12.2002. Ext.P1 is the memorandum of settlement dated 11.07.1989 wherein the company has adopted a scheme for providing compassionate appointment for the dependants of the employees who die in harness. 3. The petitioners immediately after the death of their parent submitted the applications before the management for appointment under this Scheme. Then the Management assured the petitioners that they would get permanent appointment in accordance with their turn. Ultimately, they were provided with wpc: 1621 of 2009 2 casual appointment on compassionate grounds. The 1st petitioner is working in the company since 2002, 2nd and 3rd petitioners were also appointed as casual employees on compassionate grounds in January, 2005 and January 2003 respectively. They have been issued with casual employee passes as well as membership in the ESI and EPF Scheme. These have been produced as Ext.P2 series, Ext.P3 series and Ext.P4 series. 4. The petitioners are aggrieved by the stand taken by the management that permanent appointment on compassionate ground cannot be given to the dependants of those employees who died beyond a period of 3 years. Ext.P6 is the said administrative instructions. They have adopted the instructions issued by the Government of India in this regard. All other claimants including the petitioners are proposed to be given only financial benefits in lieu of compassionate appointment. The labour unions of the company have lodged their protest against this. It is evidenced by Ext.P7 and the management refused the claims by Ext.P8. Accordingly, they have approached this Court. 5. In the meanwhile, they have filed a detailed representation before the company as well as the Government of India. Ext.P9 is the said representation. wpc: 1621 of 2009 3 6. Respondents 1 and 2 have filed a detailed counter affidavit. The stand taken therein is that even though the settlement is there as such the orders issued by the Government from time to time are applicable to them. In view of the non- availability of sufficient vacancies, as per Ext.R2(a) to provide benefits to all eligible candidates, a separate scheme was evolved vide Administrative Instruction No.838 dated 30.7.2002. Under the said scheme, the grant of financial assistance in lieu of compassionate appointment will be considered on such terms and conditions. The amount of financial assistance will depend upon the period of service left to be served by the deceased employee. If the remaining service is up to 10 years, the Scheme provides for Rs.2.5 lakhs. If it is in between 10 to 20 years, the amount will be Rs.2.75 lakhs and if it is above 20 years, the amount will be Rs.3 lakhs. Subsequently, there was an enhancement by 25% for all the slabs mentioned above in the year, 2006. 7. The company has taken a stand in the absence of sufficient vacancies, they cannot provide employment to the petitioners. It is also submitted that the petitioners were also offered casual employment on 'as and when required basis' on a wpc: 1621 of 2009 4 daily wage at the rate of Rs.140/- per day. 8. In the light of the contentions raised by the parties, the question arises whether the time limit provided for keeping the right to get an appointment for only 3 years is correct or not. The parties are in dispute whether the orders issued by the Government are applicable in this situation at all. It is also the case of the petitioners that dependants of other employees, who died later have been provided appointment overlooking their claim. 9. The learned counsel appearing for the petitioners submits that the company is bound to follow Ext.P1 settlement whereas the learned counsel for the company submits that going by the terms of settlement itself they are bound to adopt the administrative instructions issued by the Central Government also. Admittedly, the petitioners have been provided with appointment on a casual basis now. The learned counsel for the management submitted that during the last 3 years, 60 retirements have occurred. Even going by the same, only 5% of the vacancies arising out of death, resignation and retirement of employees can be considered for compassionate appointment. wpc: 1621 of 2009 5 10. Thus various applicants are awaiting to get appointment under the scheme. Since various disputed questions regarding the vacancies available to provide the scheme, and other related issues are arising for decision, the grievances raised by the petitioners can be considered by the third respondent Government itself. The petitioners submit that the absorption in the lowest post in the arising vacancy will not cause any difficulties for the company since a number of vacancies are being filled up every year. Whether there are sufficient vacancies to accommodate all the applicants is for the Government to consider. Since the company is under the department of Atomic Energy, all these aspects should be considered by the third respondent and appropriate directions could also be issued by them. 11. Heard the Assistant Solicitor General appearing for the third respondent also. In the result, the writ petition is disposed of directing the third respondent to take a decision, on Ext.P9 submitted by the petitioners after hearing the petitioners and the first respondent company, within a period of four months from the wpc: 1621 of 2009 6 date of receipt of a copy of this judgment. The petitioners will be continued as casual workers pursuant to their engagement earlier. Any fresh appointment under the scheme will be deferred till a final decision is taken by the Government. T.R.RAMACHANDRAN NAIR, JUDGE