1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 24.08.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.9565 of 2011 and M.P.(MD).No.1 of 2011 K.Sivasubramaniam ... Petitioner Vs. 1. Bharat Heavy Electricals Limited Trichy Represented by its Executive Director B.H.E.L., Trichy - 14 2. The Deputy General Manager Human Resources Bharath Heavy Electricals Limited Trichy -14 ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Mandamus directing the respondents to appoint the petitioner as Artisan in the respondents company. For Petitioners : Mr.S.Muthukrishnan O R D E R The petitioner has sought for a Mandamus directing the respondents to appoint the petitioner as Artisan in Bharat Heavy Electricals Limited, Trichy. 2. According to the petitioner, he appeared for selection in the sixth batch of Artisan in the year 2008. He was selected by the first respondent and joined duty on 10.02.2009. At the time of applying for the said post, he produced an experience certificate from METCON Enterprises, Thuvakkudi, Trichy, dated 28.03.2008 and another experience certificate from Stahill Form Technik Private, Hosur, dated 09.10.2008, along with his application. While he was working in the respondents' company, a charge memo, dated 31.01.2010 was issued alleging that the experience certificate obtained from METCON Enterprises, Thuvakkudi, Trichy, dated 28.03.2008, was not genuine. Though the petitioner has submitted an explanation stating that the signatory of the experience certificate, Mr.C.D.Govindarajalu was a partner of the company and that he was authorised to issue a certificate, his explanation was not considered in proper perspective and following a domestic enquiry, the petitioner was removed from service, on 18.10.2010. He had worked in the respondents company for 11 months and 20 days. His appeal to the Appellate Authority was also dismissed. https://hcservices.ecourts.gov.in/hcservices/ 2 3. While the matter stood thus, Bharat Heavy Electricals Limited, Trichy, the first respondent herein, issued a notification for appointment of ninth batch of Artisans in the year 2011. The petitioner applied for the post and also attend the written examination on 26.06.2011. He secured 66.667 mark out of 100. The cut off mark for selection OBC under category candidate is 63.125. The cut off mark for General Category is 65.417. 4. It is the case of the petitioner that in as much as, he had secured marks more than the cut off prescribed for Backward Class community, he should have been selected and appointed as Artisan. However, when he approached the first respondent, under the Right to Information Act 2005, the Central Public Information Officer, Human Resource Management, Bharat Heavy Electricals Limited, in his letter, dated 25.07.2011, informed the petitioner that since he was removed from service on 18.10.2010, the petitioner was not shortlisted for interview in the selection, held for the post of Artisan. 5. On the abovesaid pleadings, Mr.S.Muthukrishnan, learned counsel for the petitioner submitted that once the petitioner has been permitted to take part in the written examination conducted on 26.06.2011 for the post of Artisan in the ninth batch, in Bharat Heavy Electricals Limited, Trichy, the first respondent company and secured adequate marks, he should have been selected and appointed to the post of Artisan, based on his performance in the examination. It is his further contention that removal is not a bar for re-employment in the first respondent company and therefore prayed for a Mandamus. 6. Heard the learned counsel for the petitioner and perused the material available on record. 7. Pleadings and material on record discloses that earlier, when the petitioner was appointed as a temporary employee / Artisan on 10.02.2009, on verification of the certificates produced by him and the work experience claiming for age relaxation, the first respondent company limited has found that METCON Enterprises, Thuvakkudi, Trichy, had not issued any work experience certificate in favour of the petitioner and that therefore, the certificate was found to be not genuine. In such circumstances, alleging that the petitioner was given false information, regarding his three years experience or other antecedents, for securing employment in the company, which amounted to cheating the company, disciplinary action has been taken against the petitioner under items 60(4) and 60(36) of the acts and omissions listed in the Company's Standing Orders. Though an explanation was submitted by the writ petitioner, pursuant to a domestic enquiry, the first respondent came to a conclusion that the misconducts committed by the petitioner was serious in nature, warranting stringent punishment. 8. Accordingly, vide order, dated 18.10.2010, the petitioner has been removed from service. The appeal filed by the petitioner has also been dismissed. No doubt, the petitioner has applied for the post of Artisan in the ninth batch and also taken up the written examination and secured marks more than the cut off prescribed for OBC and General Category candidates., but, merely because, the petitioner has appeared https://hcservices.ecourts.gov.in/hcservices/ 3 in the subsequent examination, that would not confer any automatic right to the petitioner to be shortlisted for interview for the reason, that it is for the employer to take into consideration not only the eligibility criteria but also, the antecedents, desirability, suitability of a candidate, for employment in their company. 9. It is not disputed that removal is not a bar for appointment. At the same time, an employer cannot be compelled by issuance of a Mandamus to appoint a person, who has already been removed on proven charges of misconducts, particularly giving false information regarding the previous experience or other antecedents, for securing employment in the company which according to them amount to cheating the company, a serious misconduct, under items 60(4) and 60(36) of the acts and omissions listed in the Company's Standing Orders. When the earlier removal of the petitioner for the misconduct has been taken into consideration for not shortlisting the petitioner, this Court is of the view that there is no failure on the part of the appointing authority to take into consideration the relevant factors for selection and appointment. 10. Assessment of a candidate for appointment to a post notified depends upon various factors, stated supra, and mere securing of marks, in an examination is not the only criteria. In such view of the matter, this Court is of the view that there is no legal or statutory right to demand that the petitioner should be appointed as Artisan in the first respondent company notwithstanding the fact that he was already removed from the very same company for proven misconduct. The employer should be given the latitude to decide, as to whether such a candidate can be appointed in their company. The decision to select a candidate depends upon the nature of allegations which warranted the removal from services. 11. In the light of the above discussion, this Court is not inclined to issue any Mandamus. Hence, this Writ Petition is dismissed. Consequently, connected Miscellaneous Petition is also dismissed. No costs. Sd/- Assistant Registrar (Crl.Side) /True Copy/ Sub Assistant Registrar To 1. The Executive Director, Bharat Heavy Electricals Limited, Trichy – 14. 2. The Deputy General Manager, Human Resources Bharath Heavy Electricals Limited, Trichy -14 +1 CC to Mr.S.Muthukrishnan, Advocate (SR.No.28899) W.P.(MD).No.9565 of 2011 and M.P.(MD).No.1 of 2011 24.08.2011 vsg NSV/7.9.11/3P/4C https://hcservices.ecourts.gov.in/hcservices/