{"id":51756,"date":"2007-10-30T00:00:00","date_gmt":"2007-10-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/nuclear-power-corporation-of-vs-heirlin-jeya-sutha-on-30-october-2007"},"modified":"2017-11-27T09:27:33","modified_gmt":"2017-11-27T03:57:33","slug":"nuclear-power-corporation-of-vs-heirlin-jeya-sutha-on-30-october-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/nuclear-power-corporation-of-vs-heirlin-jeya-sutha-on-30-october-2007","title":{"rendered":"Nuclear Power Corporation Of … vs Heirlin Jeya Sutha on 30 October, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
Nuclear Power Corporation Of … vs Heirlin Jeya Sutha on 30 October, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\n\nDATED : 30\/10\/2007\n\n\nCORAM\nTHE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA\nAND\nTHE HONOURABLE MR.JUSTICE S.PALANIVELU\n\n\nWRIT APPEAL No.401 OF 2007\n\n\nNuclear Power Corporation of India Ltd.\n(A Government of India Undertaking),\nProject Site, Kudankulam - 627 106,\nRadhapuram Taluk,\nTirunelveli District,\nthrough its Project Director.\t...\tAppellant\n\n\nvs\n\n\n1.Heirlin Jeya Sutha\n\n2.The Government of Tamilnadu,\n   Through its District Collector,\n   Tirunelveli.\t\t\t...\tRespondents\n\n\n\nAppeal under Clause 15 of the Letters Patent Act.\n\n\n!For appellant \t\t...\tMr.Krishna Srinivasan,\n\t\t        \tfor M\/s.S.Ramasubramaniam Associates.\n\n\n^For respondent 1 \t...\tMr.T.S.R.Venkataramana\n\n\nFor respondent 2 \t...\tMr.R.Janakiramulu,\n\t\t               \tSpl.Govt.Pleader.\n\n\n:JUDGMENT\n<\/pre>\n
S.PALANIVELU,J.\n<\/p>\n
\tThis Writ Appeal is directed against the order of a learned single Judge,
\ndated 25.07.2007, made in W.P.(MD).No.2936 of 2004, in and by which the first
\nrespondent, who is the appellant herein, was directed to give preference to the
\nwrit petitioner\/first respondent herein and employ her in any suitable post, not
\nless than the post of Junior Assistant (Grade-II).\n<\/p>\n
\t2. Writ Petition was one for a mandamus, seeking for a direction to the
\nfirst respondent\/appellant herein to implement and comply with G.O.Ms.No.656,
\nLabour and Employment, dated 29.06.1978.\n<\/p>\n
\t3. First respondent is daughter of one Maharajan, whose land was acquired
\nalong with the lands of others, under the provisions of the Land Acquisition
\nAct, for the purpose of establishing Nuclear Power Corporation of India Limited
\nat Kudankulam, with the assurance of Government of Tamil Nadu.  Due compensation
\nwas awarded to the land owners, inclusive of the said Maharajan.  In order to
\nproduce, develop, use and dispose of Atomic Energy under the provisions of
\nAutomic Energy Act,1962, the Central Government formed the appellant as a
\n“Government Company”, which commenced its business from 17.09.1987.  It is a
\nPublic Sector Undertaking, regulated by rules and regulations, issued by the
\nGovernment of India, from time to time, in its capacity as “instrumentality of
\nState”.  As a matter of policy, the recruitment of personnel in different
\ndisciplines is required  to be made in accordance with the guidelines, whereby
\nthe eligibility in terms of qualification, age and experience have been set out.\n<\/p>\n
\t4. It is an admitted fact that the said Maharajan was a displaced person,
\nwho was affected for the livelihood, wholly due to the acquisition of land,
\nwhich has been certified by Tahsildar, Radhapuram.  The State Government, in its
\npower, passed a G.O.Ms.No.188, Personnel and Administrative Reforms (Personnel-
\nP) Department, dated 28.12.1976, according third priority in the matter of
\nprovision of employment through Employment Exchange to the displaced persons or
\ntheir dependants, to get preferential claim in private sectors or State Public
\nSector Undertakings, to which a format of Employment Preference Certificate was
\nrequired to be issued by the Tahsildar and, accordingly, the first respondent
\nwas certified. Pursuant to the said G.O., another G.O.Ms.No.656, Labour and
\nEmployment Department, dated 29.06.1978, was issued, prescribing the procedure
\nfor recruitment of personnel from families displaced,  on account of acquisition
\nof land. The said Tahsildar, Radhapuram, also issued a community certificate to
\nthe first respondent, certifying her as belonging to Hindu Nadar Community. She
\nhas passed B.Sc. (Computer Science), in the year 2001.\n<\/p>\n
\t5. It is the outcry of the first respondent that though she has fulfilled
\nthe requirements so as to get preference in employment under the appellant
\nundertaking and is eligible to derive benefits from the Government Order in
\nG.O.Ms.No.656, Labour and Employment Department, dated 29.06.1978, the appellant
\nundertaking has been turning a Nelson’s eye towards her request and continuously
\nignoring her plight.\n<\/p>\n
\t6. In this connection, it is worthwhile to produce the G.O., for better
\nanalysis and consideration, since the claim of first respondent revolves around
\nit.\n<\/p>\n
\t“G.O.Ms.No.656, LABOUR AND EMPLOYMENT \tDEPARTMENT, DATED 29.06.1978<\/p>\n
:ORDER<\/p>\n
\tIn the G.O. first read above, orders were issued among others, that the
\nmembers of families whose lands have been acquired for Government purpose as
\nwell as for the projects of the Public Sector Undertakings and displaced as a
\nresult of the acquisition be accorded third priority under Group II of the list
\nof priority annexed to the said G.O. in the matter of provision of Employment
\nAssistance through Employment exchanges.\n<\/p>\n
\t2. The Government of India, in their letter second read above, have
\nrequested this Government to issue instructions to the Private Sector as well as
\nState Public Sector Undertakings to provide employment to at least one person of
\nthe family displaced on account of acquisition of land for the establishment of
\na project in the public sector or in the private sector.  The Government have
\nexamined the above suggestion in detail in consultation with the Director of
\nEmployment and Training, Madras, and pass the following orders :\n<\/p>\n
\t  i. All public sector undertakings may recruit without reference to
\nEmployment Exchange, at least one member of each family which is displaced on
\naccount of acquisition of lands for any projects of such Public Sector
\nUndertakings etc., provided that the acquired land should have been the only or
\nmajor source of sustenance for that family.\n<\/p>\n
\tii. The term ‘Displaced family’ will include ‘Owner of the land’ or the
\n‘cultivating tenants’ or ‘baramdars’.\n<\/p>\n
\tiii. The appointing authorities concerned of the respective Public Sector
\nUndertakings etc., shall themselves ascertain and decide whether the land was
\nthe major source of sustenance of family displaced from the land acquired,
\nwithout insisting on presentation of any certificate from Revenue Authorities
\nbefore recruitment is made.\n<\/p>\n
\tiv. For consideration of appointment as indicated in 2 (i) above, first
\npriority should be assigned to the cultivators, owned and the cultivating
\ntenants or baramdars and second priority only should be given to the ‘Absentse
\nLandlord’.\n<\/p>\n
\t3. The Departments of Secretariat are requested to communicate the above
\norders to all Public Sector Undertakings, Statutory Corporations etc., under
\ntheir control, for adoption with immediate effect.”\n<\/p>\n
\t7. Pointing that the aforementioned G.O.is applicable to the appellant
\nCorporation, learned counsel for the first respondent laboured hard to show as
\nto how the petitioner could have the right to get the benefits of the G.O., in
\nthe light of the celebrated judgments, on the subject.  He garnered support from
\na decision of the Hon’ble Apex Court in  Butu Prasad Kumbhar and others v. Steel
\nAuthority of India Ltd.and others<\/a>, 1995 Supp (2) Supreme Court Cases 225, in
\nwhich, it was held as follows:\n<\/p>\n
\t“6…..Needless to say that petitioners or their ancestors were not
\ndeprived of their land without following the procedure established in law. Their
\nland was taken under the Land Acquisition Act.  They were paid compensation for
\nit.  Therefore, the challenge raised on violation of Article 21 is devoid of any
\nmerit.  Even otherwise the obligation of the State to ensure that no citizen is
\ndeprived of his livelihood does not extend to provide employment to every member
\nof each family displaced in consequence of acquisition of land.  Rourkela Plant
\nwas established for the growth of the country.  It is one of the prestigious
\nsteel plants.  It was established in public sector.   The Government has paid
\nmarket value for the land acquired.  Even if the Government or the steel plant
\nwould not have offered any employment to any person it would not have resulted
\nin violation of any fundamental right.  Yet considering the poverty of the
\npersons who were displaced both the Central and the State Government took steps
\nto ensure that each family was protected by giving employment to at least one
\nmember in the plant.   We fail to appreciate how such a step by the Government
\nis violative of Article 21.  The claim of the petitioners that unless each adult
\nmember is given employment or the future generation is ensured of a preferential
\nclaim it would be arbitrary or contrary with the constitutional guarantee is
\nindeed stretching Article 21 without any regard to its scope and ambit as
\nexplained by this Court.  Truly speaking, it is just the other way.  Acceptance
\nof such a demand would be against Article 14.”\n<\/p>\n
\t8. In Olga Tellis v. Bombay Municipal Corporation,<\/a> 1985 (3) SCC 545,  it
\nwas observed by the Supreme Court that the concept of right of life conferred
\nwas wide and far-reaching and the deprivation of the right to livelihood without
\nfollowing the procedure established by law was violative of the fundamental
\nguarantee to a citizen.\n<\/p>\n
\t9. The law formulated in the said ruling has been distinguished in Butu
\nPrasad Kumbhar’s case, in which the Apex Court was categorical in observing that
\neven if the Government had not offered any employment to any person, it would
\nnot have resulted in violation of any fundamental right.  Hence, it is definite
\nthat the first respondent cannot make claim in the matter of employment,
\ndepicting it as her fundamental right.\n<\/p>\n
\t10. Following the dictum laid down in Butu Prasad Kumbhar’s case, on an
\nearlier occasion, a Division Bench of this Court, in its decision in The
\nChairman, Tamil Nadu Electricity Board, Chennai, v. Arulnathan,<\/a> 2003 (3)
\nM.L.J.726, has held that the claimants like the present first respondent herein
\ndo not have any fundamental right to be provided with employment by the
\nappellant, solely on the ground that their lands have been acquired.\n<\/p>\n
\t11. In Punjab State Electricity Board v. Malkiat Singh,<\/a> 2005 (1) L.L.N.33,
\nthe Supreme Court held as follows :\n<\/p>\n
\t“5…..The respondent has got compensation for his land, which was
\nacquired.  The scheme giving appointment on priority basis was only in the
\nnature of concession to eligible candidates which the respondent could not claim
\nas a matter of right having taken compensation amount for his land which was
\nrequired, more so when he did not fulfill the necessary requirements under the
\nrevised scheme…..”\n<\/p>\n
\t12. Learned counsel for the first respondent also made attempts to impress
\nupon this Court, by stating that rendering employment opportunity to either
\ndisplaced persons or their dependants is a scheme formulated by the State
\nGovernment, as is evident from G.O.Ms.No.656, Labour and Employment Department,
\ndated 29.06.1978, and, hence, in view of existence of this scheme, the refusal
\non the part of the appellant to provide employment to first respondent is
\nuncharitable and a direction, as prayed for, is a sine qua non.\n<\/p>\n
\t13. In order to countenance such a contention, the first respondent has to
\nshow that the scheme is prevailing in the appellant Corporation and the same has
\nbeen violated by the appellant.  It is pertinent to note that as far as the
\nGovernment Order is concerned, it is only an administrative instruction, having
\nno legal binding on the individual or any undertaking, not covered by it, and,
\nit would be strange to contend and hold that it is persuading the appellant to
\nprovide employment at least to one of the members of the family, whose land was
\ncovered by acquisition.  It is not the case of the first respondent that there
\nwas lack of compensation nor inadequate compensation.\n<\/p>\n
\t14. As adverted to supra, the administrative instruction contained in the
\nabove said G.O. is only applicable to Private Sector Undertakings or State
\nPublic Sector Undertakings and it does not frame any scheme with regard to the
\nappellant Corporation.  There is no averment in the affidavit or contention on
\nbehalf of the first respondent that any scheme has been framed by the appellant
\nCorporation.  In the absence of the scheme to the benefit of the first
\nrespondent, framed by the appellant Corporation, no claim or right is
\nenforceable as against the appellant.\n<\/p>\n
\t15. In this regard, learned counsel for the appellant would cite a
\ndecision of the Apex Court in D.G.M.(HR) P.G. Corporation of India Ltd. v.
\nT.Venkat Reddy and Ors., MANU\/SC\/7302\/2007,<\/a> in which, it was observed as follows
\n:\n<\/p>\n
\t“6. At this juncture, it would be relevant to take note of what has been
\nstated by this Court in Butu Prasad Kumbhar and Ors. v. Steel Authority of India
\nLtd. and Ors.,1995 Supp<\/a> (2) SCC 225.  The apprehension of the learned counsel
\nfor the appellant that the implementation of the High Court’s order would lead
\nto opening of flood gates to similar writ petitions does not appear to be of any
\nsubstance. The direction for consideration when other persons seek “such
\nemployment” can only mean when somebody else is seeking employment as a land
\noustee or his dependant.  Obviously, if there is no scheme, there cannot be any
\nconsideration of any prayer for employment on the basis of land oustees or his
\ndependants.  Therefore, only clarifying the position that the direction of the
\nHigh Court relating to “such employment” will be in relation to persons seeking
\nemployment as land oustees or their dependants.  If there is no scheme, the
\nquestion of giving any employment would not arise.  It is also clear from the
\norder of the High Court that the respondents cannot be conferred with any
\nbenefit or exemption or relaxation.”\n<\/p>\n
\t16. The ratio laid down by the Supreme Court is that in the absence of any
\nscheme, the question of providing employment would not arise.  To put it in a
\nnutshell, since no scheme is available in the appellant Corporation, the first
\nrespondent cannot expect any employment on preferential basis.\n<\/p>\n
\t17. In the affidavit, the first respondent has affirmed that she has been
\nlegally advised that non-selection of a land loser is hit by the doctrine of
\npromissory estoppel and the Corporation is estopped and personally barred from
\ndenying the rights of the land loser.\n<\/p>\n
\t18. In this context, learned counsel for the appellant placed reliance
\nupon a Division Bench decision of this Court in The Chairman and Managing
\nDirector, Indian Rare Earths Limited v. S.Ganapathy and others,
\nMANU\/TN\/2616\/2006, wherein this Court observed that the doctrine of “promissory
\nestoppel” cannot override  public interest in the event the act of the
\nGovernment is fair and reasonable.  This Court held thus, after following a
\ndecision rendered by the Supreme Court in Hira Tikkoo v. Union Territory of
\nChandigarh, MANU\/SC\/0337\/2004, and Kuldeep Singh<\/a> v. Government of NCT, Delhi,
\n2006 AIR SCW 3627.\n<\/p>\n
\t19. In Hira Tikkoo’s case, the Supreme Court has laid down the dictum as
\nunder :\n<\/p>\n
\t“Surely, the doctrine of estoppel cannot be applied against public
\nauthorities when their mistaken advice or representation is found to be in
\nbreach of a statute and therefore, against general public interest.  The
\nquestion, however, is whether the parties or individuals, who had suffered
\nbecause of the mistake and negligence on the part of the statutory authorities,
\nwould have any remedy of redressal for the loss they have suffered.  The “rules
\nof fairness” by which every public authority is bound, require them to
\ncompensate loss occasioned to private parties or citizens who were misled in
\nacting on such mistaken or negligent advice of the public authority….”\n<\/p>\n
\t20. In the light of the aforestated illuminating judicial pronouncements,
\nthe first respondent cannot contend that the doctrine “promissory estoppel”
\nwould operate against the appellant Corporation.  Further, the terms employed in
\nthe Government Order are unequivocal and categorical, so as to make them
\napplicable only to Private Sector as well as State Public Sector Undertakings,
\nfor provision of employment to at least one person of the family displaced.
\nConcedingly, the appellant is a Public Sector Undertaking, under the Government
\nof India, which has no ramifications into any of the activities of the State
\nGovernment. The said G.O. would not take the appellant into its fold.  In other
\nwords, the State Government is alien to all the affairs, including the
\nadministration of the appellant, barring acquisition of lands for it.  When the
\nsaid Government Order is not at all applicable to the appellant undertaking, it
\nis futile to contend that the appellant is not bothered about the appeal of the
\nfirst respondent.  In fact, the first respondent has failed to show that in what
\nway the above said G.O.is enforceable, with regard to employment in the
\nappellant Corporation. Hence, on the legal background, the first respondent
\ncannot at all make any claim on the strength of  Employment Preference
\nCertificate.\n<\/p>\n
\t21. In the backdrop of the factual scenario as well, the first respondent
\nhas to be non-suited, for the relief sought for.  She contends that written
\ntests were conducted by the Corporation on 24.03.2003, 16.05.2003 and 15.09.2004
\nand interviews held on 25.03.2003, 17.05.2003 and 16.09.2004 respectively and,
\nshe passed all the tests, but was not selected.  These particulars are being
\ncontroverted to in the counter affidavit filed by the appellant Corporation in
\nthe Writ Petition.  For the post of Junior Assistant, Grade-II, in the test
\nconducted on 24.03.2003, only four candidates passed the examination, but the
\nfirst respondent failed.  Hence, there was no question of calling the first
\nrespondent for the interview.  However, as the desired level and number of
\ncandidates were not available, it was decided that another attempt was to be
\nmade to recruit the candidates for the said post and no interview was held on
\n25.03.2003.  Another written test was conducted on 16.05.2003, for which it was
\nproposed to consider 35% as pass mark in aggregate, for appointment on Fixed
\nTerm Basis, for one year.  For filling seven posts, a total of 41 candidates
\nwere interviewed on 17.05.2003 and since the first respondent stood at tenth
\nposition in the overall merit list, her name did not creep into the select
\npanel.  First respondent passed written test on 16.09.2004, however, she did not
\nqualify in the interview held on 17.09.2004. Hence, she could not be empanelled
\nin the list, for appointment.  Further, in the overall select list, she stood at
\n57th position, against the empanelled number of 41.\n<\/p>\n
\t22. The above said factors would indisputably establish that the first
\nrespondent lost race on all the occasions and the contention that she passed in
\nboth written tests and interviews but was not selected, has no force.  Since the
\nappellant is not at all bound to give preference to her, there is nothing
\nbarring the appellant, to select the candidates on merit, as per its own
\nprocedure and guidelines.  It is worthy to note that the selection procedure has
\nnot been disputed by the first respondent.\n<\/p>\n
\t23. The learned single Judge, in his order, observed that there was no
\nexplanation in the counter affidavit as to why the petitioner was not given
\npreference as per the Employment Preference Certificate, issued to her.  As
\nstated already, neither the G.O.Ms.No.656, Labour and Employment Department,
\ndated 29.06.1978, nor the Employment Preference Certificate would have any
\nbinding force upon the appellant Corporation.\n<\/p>\n
\t24. In view of our discussions made above and in the light of the well
\nsettled legal principles laid down by the Apex Court, it is to be held that the
\nfirst respondent has no right to claim preference, in the matter of employment
\nfrom the appellant, and the Writ Petition filed by her is a classical example of
\nmisconception.  Therefore, the order of the learned single Judge is set aside.\n<\/p>\n
\t25. Writ Appeal is allowed.  No costs.  Consequently, the connected
\nM.P.(MD).No.1 of 2007 is closed.\n<\/p>\n
To<\/p>\n
The District Collector,
\nTirunelveli.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Nuclear Power Corporation Of … vs Heirlin Jeya Sutha on 30 October, 2007 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-51756","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nNuclear Power Corporation Of ... vs Heirlin Jeya Sutha on 30 October, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/nuclear-power-corporation-of-vs-heirlin-jeya-sutha-on-30-october-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Nuclear Power Corporation Of ... vs Heirlin Jeya Sutha on 30 October, 2007 - 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