BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 30/10/2007 CORAM THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA AND THE HONOURABLE MR.JUSTICE S.PALANIVELU WRIT APPEAL No.401 OF 2007 Nuclear Power Corporation of India Ltd. (A Government of India Undertaking), Project Site, Kudankulam - 627 106, Radhapuram Taluk, Tirunelveli District, through its Project Director. ... Appellant vs 1.Heirlin Jeya Sutha 2.The Government of Tamilnadu, Through its District Collector, Tirunelveli. ... Respondents Appeal under Clause 15 of the Letters Patent Act. !For appellant ... Mr.Krishna Srinivasan, for M/s.S.Ramasubramaniam Associates. ^For respondent 1 ... Mr.T.S.R.Venkataramana For respondent 2 ... Mr.R.Janakiramulu, Spl.Govt.Pleader. :JUDGMENT
S.PALANIVELU,J.
This Writ Appeal is directed against the order of a learned single Judge,
dated 25.07.2007, made in W.P.(MD).No.2936 of 2004, in and by which the first
respondent, who is the appellant herein, was directed to give preference to the
writ petitioner/first respondent herein and employ her in any suitable post, not
less than the post of Junior Assistant (Grade-II).
2. Writ Petition was one for a mandamus, seeking for a direction to the
first respondent/appellant herein to implement and comply with G.O.Ms.No.656,
Labour and Employment, dated 29.06.1978.
3. First respondent is daughter of one Maharajan, whose land was acquired
along with the lands of others, under the provisions of the Land Acquisition
Act, for the purpose of establishing Nuclear Power Corporation of India Limited
at Kudankulam, with the assurance of Government of Tamil Nadu. Due compensation
was awarded to the land owners, inclusive of the said Maharajan. In order to
produce, develop, use and dispose of Atomic Energy under the provisions of
Automic Energy Act,1962, the Central Government formed the appellant as a
“Government Company”, which commenced its business from 17.09.1987. It is a
Public Sector Undertaking, regulated by rules and regulations, issued by the
Government of India, from time to time, in its capacity as “instrumentality of
State”. As a matter of policy, the recruitment of personnel in different
disciplines is required to be made in accordance with the guidelines, whereby
the eligibility in terms of qualification, age and experience have been set out.
4. It is an admitted fact that the said Maharajan was a displaced person,
who was affected for the livelihood, wholly due to the acquisition of land,
which has been certified by Tahsildar, Radhapuram. The State Government, in its
power, passed a G.O.Ms.No.188, Personnel and Administrative Reforms (Personnel-
P) Department, dated 28.12.1976, according third priority in the matter of
provision of employment through Employment Exchange to the displaced persons or
their dependants, to get preferential claim in private sectors or State Public
Sector Undertakings, to which a format of Employment Preference Certificate was
required to be issued by the Tahsildar and, accordingly, the first respondent
was certified. Pursuant to the said G.O., another G.O.Ms.No.656, Labour and
Employment Department, dated 29.06.1978, was issued, prescribing the procedure
for recruitment of personnel from families displaced, on account of acquisition
of land. The said Tahsildar, Radhapuram, also issued a community certificate to
the first respondent, certifying her as belonging to Hindu Nadar Community. She
has passed B.Sc. (Computer Science), in the year 2001.
5. It is the outcry of the first respondent that though she has fulfilled
the requirements so as to get preference in employment under the appellant
undertaking and is eligible to derive benefits from the Government Order in
G.O.Ms.No.656, Labour and Employment Department, dated 29.06.1978, the appellant
undertaking has been turning a Nelson’s eye towards her request and continuously
ignoring her plight.
6. In this connection, it is worthwhile to produce the G.O., for better
analysis and consideration, since the claim of first respondent revolves around
it.
“G.O.Ms.No.656, LABOUR AND EMPLOYMENT DEPARTMENT, DATED 29.06.1978
:ORDER
In the G.O. first read above, orders were issued among others, that the
members of families whose lands have been acquired for Government purpose as
well as for the projects of the Public Sector Undertakings and displaced as a
result of the acquisition be accorded third priority under Group II of the list
of priority annexed to the said G.O. in the matter of provision of Employment
Assistance through Employment exchanges.
2. The Government of India, in their letter second read above, have
requested this Government to issue instructions to the Private Sector as well as
State Public Sector Undertakings to provide employment to at least one person of
the family displaced on account of acquisition of land for the establishment of
a project in the public sector or in the private sector. The Government have
examined the above suggestion in detail in consultation with the Director of
Employment and Training, Madras, and pass the following orders :
i. All public sector undertakings may recruit without reference to
Employment Exchange, at least one member of each family which is displaced on
account of acquisition of lands for any projects of such Public Sector
Undertakings etc., provided that the acquired land should have been the only or
major source of sustenance for that family.
ii. The term ‘Displaced family’ will include ‘Owner of the land’ or the
‘cultivating tenants’ or ‘baramdars’.
iii. The appointing authorities concerned of the respective Public Sector
Undertakings etc., shall themselves ascertain and decide whether the land was
the major source of sustenance of family displaced from the land acquired,
without insisting on presentation of any certificate from Revenue Authorities
before recruitment is made.
iv. For consideration of appointment as indicated in 2 (i) above, first
priority should be assigned to the cultivators, owned and the cultivating
tenants or baramdars and second priority only should be given to the ‘Absentse
Landlord’.
3. The Departments of Secretariat are requested to communicate the above
orders to all Public Sector Undertakings, Statutory Corporations etc., under
their control, for adoption with immediate effect.”
7. Pointing that the aforementioned G.O.is applicable to the appellant
Corporation, learned counsel for the first respondent laboured hard to show as
to how the petitioner could have the right to get the benefits of the G.O., in
the light of the celebrated judgments, on the subject. He garnered support from
a decision of the Hon’ble Apex Court in Butu Prasad Kumbhar and others v. Steel
Authority of India Ltd.and others, 1995 Supp (2) Supreme Court Cases 225, in
which, it was held as follows:
“6…..Needless to say that petitioners or their ancestors were not
deprived of their land without following the procedure established in law. Their
land was taken under the Land Acquisition Act. They were paid compensation for
it. Therefore, the challenge raised on violation of Article 21 is devoid of any
merit. Even otherwise the obligation of the State to ensure that no citizen is
deprived of his livelihood does not extend to provide employment to every member
of each family displaced in consequence of acquisition of land. Rourkela Plant
was established for the growth of the country. It is one of the prestigious
steel plants. It was established in public sector. The Government has paid
market value for the land acquired. Even if the Government or the steel plant
would not have offered any employment to any person it would not have resulted
in violation of any fundamental right. Yet considering the poverty of the
persons who were displaced both the Central and the State Government took steps
to ensure that each family was protected by giving employment to at least one
member in the plant. We fail to appreciate how such a step by the Government
is violative of Article 21. The claim of the petitioners that unless each adult
member is given employment or the future generation is ensured of a preferential
claim it would be arbitrary or contrary with the constitutional guarantee is
indeed stretching Article 21 without any regard to its scope and ambit as
explained by this Court. Truly speaking, it is just the other way. Acceptance
of such a demand would be against Article 14.”
8. In Olga Tellis v. Bombay Municipal Corporation, 1985 (3) SCC 545, it
was observed by the Supreme Court that the concept of right of life conferred
was wide and far-reaching and the deprivation of the right to livelihood without
following the procedure established by law was violative of the fundamental
guarantee to a citizen.
9. The law formulated in the said ruling has been distinguished in Butu
Prasad Kumbhar’s case, in which the Apex Court was categorical in observing that
even if the Government had not offered any employment to any person, it would
not have resulted in violation of any fundamental right. Hence, it is definite
that the first respondent cannot make claim in the matter of employment,
depicting it as her fundamental right.
10. Following the dictum laid down in Butu Prasad Kumbhar’s case, on an
earlier occasion, a Division Bench of this Court, in its decision in The
Chairman, Tamil Nadu Electricity Board, Chennai, v. Arulnathan, 2003 (3)
M.L.J.726, has held that the claimants like the present first respondent herein
do not have any fundamental right to be provided with employment by the
appellant, solely on the ground that their lands have been acquired.
11. In Punjab State Electricity Board v. Malkiat Singh, 2005 (1) L.L.N.33,
the Supreme Court held as follows :
“5…..The respondent has got compensation for his land, which was
acquired. The scheme giving appointment on priority basis was only in the
nature of concession to eligible candidates which the respondent could not claim
as a matter of right having taken compensation amount for his land which was
required, more so when he did not fulfill the necessary requirements under the
revised scheme…..”
12. Learned counsel for the first respondent also made attempts to impress
upon this Court, by stating that rendering employment opportunity to either
displaced persons or their dependants is a scheme formulated by the State
Government, as is evident from G.O.Ms.No.656, Labour and Employment Department,
dated 29.06.1978, and, hence, in view of existence of this scheme, the refusal
on the part of the appellant to provide employment to first respondent is
uncharitable and a direction, as prayed for, is a sine qua non.
13. In order to countenance such a contention, the first respondent has to
show that the scheme is prevailing in the appellant Corporation and the same has
been violated by the appellant. It is pertinent to note that as far as the
Government Order is concerned, it is only an administrative instruction, having
no legal binding on the individual or any undertaking, not covered by it, and,
it would be strange to contend and hold that it is persuading the appellant to
provide employment at least to one of the members of the family, whose land was
covered by acquisition. It is not the case of the first respondent that there
was lack of compensation nor inadequate compensation.
14. As adverted to supra, the administrative instruction contained in the
above said G.O. is only applicable to Private Sector Undertakings or State
Public Sector Undertakings and it does not frame any scheme with regard to the
appellant Corporation. There is no averment in the affidavit or contention on
behalf of the first respondent that any scheme has been framed by the appellant
Corporation. In the absence of the scheme to the benefit of the first
respondent, framed by the appellant Corporation, no claim or right is
enforceable as against the appellant.
15. In this regard, learned counsel for the appellant would cite a
decision of the Apex Court in D.G.M.(HR) P.G. Corporation of India Ltd. v.
T.Venkat Reddy and Ors., MANU/SC/7302/2007, in which, it was observed as follows
:
“6. At this juncture, it would be relevant to take note of what has been
stated by this Court in Butu Prasad Kumbhar and Ors. v. Steel Authority of India
Ltd. and Ors.,1995 Supp (2) SCC 225. The apprehension of the learned counsel
for the appellant that the implementation of the High Court’s order would lead
to opening of flood gates to similar writ petitions does not appear to be of any
substance. The direction for consideration when other persons seek “such
employment” can only mean when somebody else is seeking employment as a land
oustee or his dependant. Obviously, if there is no scheme, there cannot be any
consideration of any prayer for employment on the basis of land oustees or his
dependants. Therefore, only clarifying the position that the direction of the
High Court relating to “such employment” will be in relation to persons seeking
employment as land oustees or their dependants. If there is no scheme, the
question of giving any employment would not arise. It is also clear from the
order of the High Court that the respondents cannot be conferred with any
benefit or exemption or relaxation.”
16. The ratio laid down by the Supreme Court is that in the absence of any
scheme, the question of providing employment would not arise. To put it in a
nutshell, since no scheme is available in the appellant Corporation, the first
respondent cannot expect any employment on preferential basis.
17. In the affidavit, the first respondent has affirmed that she has been
legally advised that non-selection of a land loser is hit by the doctrine of
promissory estoppel and the Corporation is estopped and personally barred from
denying the rights of the land loser.
18. In this context, learned counsel for the appellant placed reliance
upon a Division Bench decision of this Court in The Chairman and Managing
Director, Indian Rare Earths Limited v. S.Ganapathy and others,
MANU/TN/2616/2006, wherein this Court observed that the doctrine of “promissory
estoppel” cannot override public interest in the event the act of the
Government is fair and reasonable. This Court held thus, after following a
decision rendered by the Supreme Court in Hira Tikkoo v. Union Territory of
Chandigarh, MANU/SC/0337/2004, and Kuldeep Singh v. Government of NCT, Delhi,
2006 AIR SCW 3627.
19. In Hira Tikkoo’s case, the Supreme Court has laid down the dictum as
under :
“Surely, the doctrine of estoppel cannot be applied against public
authorities when their mistaken advice or representation is found to be in
breach of a statute and therefore, against general public interest. The
question, however, is whether the parties or individuals, who had suffered
because of the mistake and negligence on the part of the statutory authorities,
would have any remedy of redressal for the loss they have suffered. The “rules
of fairness” by which every public authority is bound, require them to
compensate loss occasioned to private parties or citizens who were misled in
acting on such mistaken or negligent advice of the public authority….”
20. In the light of the aforestated illuminating judicial pronouncements,
the first respondent cannot contend that the doctrine “promissory estoppel”
would operate against the appellant Corporation. Further, the terms employed in
the Government Order are unequivocal and categorical, so as to make them
applicable only to Private Sector as well as State Public Sector Undertakings,
for provision of employment to at least one person of the family displaced.
Concedingly, the appellant is a Public Sector Undertaking, under the Government
of India, which has no ramifications into any of the activities of the State
Government. The said G.O. would not take the appellant into its fold. In other
words, the State Government is alien to all the affairs, including the
administration of the appellant, barring acquisition of lands for it. When the
said Government Order is not at all applicable to the appellant undertaking, it
is futile to contend that the appellant is not bothered about the appeal of the
first respondent. In fact, the first respondent has failed to show that in what
way the above said G.O.is enforceable, with regard to employment in the
appellant Corporation. Hence, on the legal background, the first respondent
cannot at all make any claim on the strength of Employment Preference
Certificate.
21. In the backdrop of the factual scenario as well, the first respondent
has to be non-suited, for the relief sought for. She contends that written
tests were conducted by the Corporation on 24.03.2003, 16.05.2003 and 15.09.2004
and interviews held on 25.03.2003, 17.05.2003 and 16.09.2004 respectively and,
she passed all the tests, but was not selected. These particulars are being
controverted to in the counter affidavit filed by the appellant Corporation in
the Writ Petition. For the post of Junior Assistant, Grade-II, in the test
conducted on 24.03.2003, only four candidates passed the examination, but the
first respondent failed. Hence, there was no question of calling the first
respondent for the interview. However, as the desired level and number of
candidates were not available, it was decided that another attempt was to be
made to recruit the candidates for the said post and no interview was held on
25.03.2003. Another written test was conducted on 16.05.2003, for which it was
proposed to consider 35% as pass mark in aggregate, for appointment on Fixed
Term Basis, for one year. For filling seven posts, a total of 41 candidates
were interviewed on 17.05.2003 and since the first respondent stood at tenth
position in the overall merit list, her name did not creep into the select
panel. First respondent passed written test on 16.09.2004, however, she did not
qualify in the interview held on 17.09.2004. Hence, she could not be empanelled
in the list, for appointment. Further, in the overall select list, she stood at
57th position, against the empanelled number of 41.
22. The above said factors would indisputably establish that the first
respondent lost race on all the occasions and the contention that she passed in
both written tests and interviews but was not selected, has no force. Since the
appellant is not at all bound to give preference to her, there is nothing
barring the appellant, to select the candidates on merit, as per its own
procedure and guidelines. It is worthy to note that the selection procedure has
not been disputed by the first respondent.
23. The learned single Judge, in his order, observed that there was no
explanation in the counter affidavit as to why the petitioner was not given
preference as per the Employment Preference Certificate, issued to her. As
stated already, neither the G.O.Ms.No.656, Labour and Employment Department,
dated 29.06.1978, nor the Employment Preference Certificate would have any
binding force upon the appellant Corporation.
24. In view of our discussions made above and in the light of the well
settled legal principles laid down by the Apex Court, it is to be held that the
first respondent has no right to claim preference, in the matter of employment
from the appellant, and the Writ Petition filed by her is a classical example of
misconception. Therefore, the order of the learned single Judge is set aside.
25. Writ Appeal is allowed. No costs. Consequently, the connected
M.P.(MD).No.1 of 2007 is closed.
To
The District Collector,
Tirunelveli.