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Saturday, September 20, 2014

Service matter - employment in NTPC - to the Land Oustees - No Paper Publications - However all participated - some were selected - some were rejected - filed writ that No paper publication was filed - high court allowed the same - Apex court , in the interim stage allowed the process of appointment subject to the result of appeal - Apex court held that 70 members who are not selected have no locus standi for questioning the non-publication in News papers - two persons who filed were selected as per interim directions - and in other writ petition 2 out 5 were selected - 3 were held for color blindness - asked for reconstitution of Medical board as the same medical officer and other medical officers gave certificate that 3 have no color blindness - Apex court set aside the High court order for fresh publication and for fresh selection = CIVIL APPEAL NO. 8487 OF 2014 (arising out of SLP (C) No. 31026 of 2011) |NTPC KAHALAGAON & ORS. |…..APPELLANT(S) | | | | |VERSUS | | |NAKUL DAS & ORS. |…..RESPONDENT(S) = 2014 - Sept.- Month - http://judis.nic.in/supremecourt/filename=41886

Service matter - employment in NTPC - to the Land Oustees - No Paper Publications - However all participated - some were selected - some were rejected - filed writ that No paper publication was filed - high court allowed the same - Apex court , in the interim stage allowed the process of appointment subject to the result of appeal -  Apex court held that 70 members who are not selected have no locus standi for questioning the non-publication in News papers - two persons who filed were selected as per interim directions - and in other writ petition 2 out 5 were selected - 3 were held for color blindness - asked for reconstitution of Medical board as the same medical officer and other medical officers gave certificate that 3 have no color blindness - Apex court set aside the High court order for fresh publication and for fresh selection =

  the NTPC had prepared  a  plan  for
the recruitment of labour in such plant, with preference  to  be  given,  in
various classes of such labour, to persons whose  lands  had  been  acquired
for the construction of the said  plant  (Land  Oustees).   Thereafter,  the
NTPC ran into  industrial  relations  problems  as  the  said  Land  Oustees
demanded a larger share of preference  in  the  employment  in  the  various
classes  of  posts.   Accordingly,  the  NTPC  made   adjustments   to   the
recruitment procedure on 28.05.1986.   Subsequently,  it  ran  into  further
labour problems such as Bandhs, Gheraos, etc. by the said Land Oustees.   On
this account, the appellant was suffering huge loss on a daily basis.  As  a
result, the NTPC resolved to exclusively employ  Land  Oustees  in  all  the
specific labour classes.  This decision was communicated to  the  Government
of India vide letter dated 20.07.1998.  Thereafter, there was  the  creation
of new vacancies due to expansion of  the  said  Plant.   The  NTPC  took  a
decision to allot these newly created posts entirely to the  class  of  Land
Oustees.  This decision was communicated  to  the  Parliamentary  Committee,
and  as  per  the  same,  the  local  Employment  Exchanges  were  notified.
Further, the NTPC sent requests to all the  concerned  District  Magistrates
to publish information about the said vacancies.  On these basis,  the  NTPC
received applications, conducted  interview  procedures  and  appointed  the
successful candidates to the vacant posts, being all Land Oustees.=

 The position which emerges from the aforesaid narration of  events  is
this:
The  persons  who  were  selected  were  admittedly  eligible  to  be
considered as they were also Land Oustees.
No doubt,  the  posts  were  not
advertised by publication in the newspapers.
Facts remains  that  only  two
persons namely respondent Nos.1 and 2  made  a  grievance  in  this  behalf.
These two persons have also been considered for the posts under  the  orders
of this Court.  However, they have failed  in  the  selection.  
Others  who
were selected have already joined the posts.
In  a  matter  like  this,  no
useful purpose would be served in carrying out the directions  of  the  High
Court to have fresh selection process after issuing  advertisements  in  the
newspapers.

18.   We may record at this stage that about  70  other  persons  have  also
filed I.A.'s supporting the stand of respondent Nos.1 and  2.  
However,  it
is of significance to mention that all these persons had  duly  participated
in the selection process but could not make their mark  and  failed  to  get
selected.  
Therefore, these persons have no right  to  raise  any  grievance
about non-publication of the advertisement in the newspapers.

19.   Having regard to  these  peculiar  facts  and  aforesaid  developments
during the pendency of these appeals,
we find that there is no necessity  to
carry out any fresh selection process as directed by the High Court  in  the
impugned judgment.  The appeals are allowed and the direction is set aside.

      Civil Appeal @ S.L.P. (C) No.4686/2012
      Leave granted.

20.   This appeal is filed by five persons  who  also  participated  in  the
selection process and were selected.

21.   Pursuant to the orders dated 09.05.2013 directing NTPC to appoint  the
selected candidates, two out of the aforesaid  five  appellants  have  given
the appointment.
However, cases of other three appellants are  rejected  as
in the medical examination conducted, they  are  found  medically  unfit  as
suffering from 'colour blindness'.
They are  appellants  Nos.1,  4  and  5.
Learned counsel appearing for these appellants submitted that their  medical
examination was done in haste; they had  made  representation  to  the  NTPC
regarding constitution of Medical Board to re-examine their cases  to  which
NTPC was not agreeing; they had got themselves medically examined  from  the
same hospital and same doctor namely  NTPC,  Kahalagaon  Hospital  and  also
outside doctor and they had duly certified that these  appellants  were  not
suffered from 'colour blindness'.
Additional  affidavit  dated  26th  June,
2005 is filed including the result of their medical  examination  from  Out-
Patient Department of NTPC, Kahalagaon Hospital, as well as opinion of  some
private Doctors in support of the aforesaid submission.

22.   Having regard to the aforesaid facts, we are of the  opinion  that  it
would be in the interest of justice that NTPC  constitutes  another  Medical
Board for re-examination of these three appellants and decide their fate  on
the basis of the opinion given and take  further  action  on  the  basis  of
opinion given by the reconstitute Medical Board.

23.   This appeal is disposed of on the aforesaid terms.
2014 - Sept.- Month - http://judis.nic.in/supremecourt/filename=41886

                                                           NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 8487 OF 2014
                 (arising out of SLP (C) No. 31026 of 2011)

|NTPC KAHALAGAON & ORS.                           |…..APPELLANT(S)       |
|                                                 |                      |
|VERSUS                                           |                      |
|NAKUL DAS & ORS.                                 |…..RESPONDENT(S)      |

                                   W I T H

                     CIVIL APPEAL NO. 8489-8490 OF 2014
              (arising out of SLP (C) No. 33518-33519 of 2011)

                        CIVIL APPEAL NO. 8488 OF 2014
                  (arising out of SLP (C) No. 4686 of 2012)

                        CIVIL APPEAL NO. 8491 OF 2014
                 (arising out of SLP (C) No. 33772 of 2013)

                        CIVIL APPEAL NO. 8492 OF 2014
                 (arising out of SLP (C) No. 33784 of 2013)


                               J U D G M E N T

A.K. SIKRI, J.
Civil Appeal @ SLP(C) no. 31026 of 2011
Civil Appeal @ SLP(C) No. 33518-33519 of 2011
Civil Appeal @ SLP(C) No. 33772 of 2013
Civil Appeal @ SLP(C) No. 33784 of 2013

      Leave granted.

2.    Civil Appeal arising out of Special Leave  Petition  (Civil)  No.31026
of 2011 is treated as lead case and the background  facts  culled  therefrom
are briefly mentioned below :

                 The appellant  in  this  case  is  National  Thermal  Power
Corporation,  Kahalagaon  (hereinafter  referred  to  as  the  'NTPC').   It
established a Super Thermal Power  Plant  in  the  District  of  Kahalagaon,
Bihar in the year 1986.  While doing so, the NTPC had prepared  a  plan  for
the recruitment of labour in such plant, with preference  to  be  given,  in
various classes of such labour, to persons whose  lands  had  been  acquired
for the construction of the said  plant  (Land  Oustees).   Thereafter,  the
NTPC ran into  industrial  relations  problems  as  the  said  Land  Oustees
demanded a larger share of preference  in  the  employment  in  the  various
classes  of  posts.   Accordingly,  the  NTPC  made   adjustments   to   the
recruitment procedure on 28.05.1986.   Subsequently,  it  ran  into  further
labour problems such as Bandhs, Gheraos, etc. by the said Land Oustees.   On
this account, the appellant was suffering huge loss on a daily basis.  As  a
result, the NTPC resolved to exclusively employ  Land  Oustees  in  all  the
specific labour classes.  This decision was communicated to  the  Government
of India vide letter dated 20.07.1998.  Thereafter, there was  the  creation
of new vacancies due to expansion of  the  said  Plant.   The  NTPC  took  a
decision to allot these newly created posts entirely to the  class  of  Land
Oustees.  This decision was communicated  to  the  Parliamentary  Committee,
and  as  per  the  same,  the  local  Employment  Exchanges  were  notified.
Further, the NTPC sent requests to all the  concerned  District  Magistrates
to publish information about the said vacancies.  On these basis,  the  NTPC
received applications, conducted  interview  procedures  and  appointed  the
successful candidates to the vacant posts, being all Land Oustees.

3.    The Parliamentary Committee devised a complete scheme/  procedure  for
appointments. It was of the opinion  that  in  the  ministerial  area,  NTPC
would not insist much for the experience of the candidates  falling  in  the
category of Land Oustees of priority group one.  As per the  Committee,  the
NTPC may induct people in the ministerial area and may  keep  them  on  such
positions for such time that one acquires the  requisite  experience.   Till
such time the requisite experience is attained, appointee was to be  treated
as on casual / muster roll employee.  However, no relaxation would  be  made
in the area as far as the job requirement  and  as  far  as  certificate  of
competency is concerned and a certificate of land would be  issued  was  the
Circle Officer Kahalagaon, which would duly be counter signed by  respective
LRDC.  The Committee was of the opinion that only one job would be  provided
to one member of a family falling in the priority group.  In  the  Interview
Board, apart from the representatives of the NTPC, Special Land  Acquisition
Officer, District Employment Officer were also to be  associated.   For  any
reason, if one was not in a position to attend the interview,  the  validity
of the interview so conducted was not to be challenged.

4.    It may be mentioned at this stage that the vacancy notified  were  101
against which 377 applicants, who were Land Oustees, were  considered.   Out
of these 101 posts, 69 were meant  for  Artisan  Trainee  (ITI  Fitter),  30
posts for Artisan Trainee (ITI Electrician) and 2  pots  for  Lab  Assistant
Trainee.  The NTPC availed the services of Indian Institute of  Psychometry,
Kolkata to conduct  the  written  tests.   Thereafter,  an  Interview  Board
comprising  of  representatives  from  the  State  Governments  /   Minority
Community and senior officers of the NTPC was  constituted  which  conducted
the interview of those candidates who have  passed  the  written  test.   In
this manner, selection of  101  persons  from  the  said  category  of  Land
Oustees was made.

5.    Before the selected persons could be  appointed,  two  writ  petitions
came to be filed in the  High  Court  of  Patna  challenging  the  aforesaid
selection.  One writ petition was filed by respondents Nos.1 and  2  herein.
Other was filed by some outsiders,  namely  those  who  were  not  the  Land
Oustees.  In  so  far  as  writ  petition  of  respondent  Nos.1  and  2  is
concerned,  their  main  grievance  was  that   the   method   for   calling
applications   only   through   Employment   Exchange   and   limiting   the
consideration of the candidates sponsored by  the  Employment  Exchange  was
not fair and there should have been a wider publicity  by  means  of  public
advertisement in the newspapers as well to make all such Land Oustees  aware
of the move of the NTPC for filling up of the said posts from  the  families
of Land Oustees.  It was contended that as  this  mode  of  advertising  the
vacancy through newspapers was not adopted, persons like  respondents  Nos.1
and 2 remained unaware of these vacancies and,  therefore,  they  could  not
apply for the posts and thereby, were left out of consideration.

6.    In so far as second writ petition filed by the  non  Land  Oustees  is
concerned, their challenge was  to  the  effect  that  100%  reservation  in
favour of Land Oustees was impermissible.

7.    The learned single Judge of the  High  Court  allowed  both  the  writ
petitions and interfered with the selection  and  appointment  made  by  the
NTPC.  Challenging the order of the learned single Judge, few  appeals  were
filed.  One was by the NTPC and other appeals were filed by those  who  were
selected but their selection was set aside  by  the  learned  single  Judge.
The Division Bench of the High  Court  has  decided  these  appeals  by  the
singular judgment dated 12.09.2011 which is impugned in these appeals.   The
High Court has modified the order of the single Judge partly.  In so far  as
writ petition of non Land Oustees is concerned,  their  contention  has  not
found favour with the Division  Bench  and  it  has  held  that  the  policy
decision of the NTPC in order to compensate for  the  loss  which  the  Land
Oustees had suffered was taken treating  such  Land  Oustees  as  a  special
class and such a decision could not be  treated  as  a  reservation  on  the
lines of  reservation  policy  provided  to  backward  classes.   Therefore,
restriction of 50% by treating a policy to be a policy  of  reservation  was
not justified.  On this count, the decision of the learned single Judge  has
been set aside, meaning thereby, the writ petitions filed by  the  outsiders
are dismissed.

8.    However, in so far as inaction of the  NTPC  in  not  advertising  the
posts by publication in newspapers is concerned, the decision of the  single
Judge is upheld by finding fault with the approach of the NTPC.  For  taking
this view, the Bench relied upon the judgment of this Court in the  case  of
Excise Superintendent, Malkapatnam v. K.B.N. Vishweshwara Rao, (1996) 6  SCC
216.  As  a  result  thereof,  direction  is  given  to  the  NTPC  to  give
opportunity to other eligible persons by giving advertisement in  newspapers
and complete  the  exercise  of  filling  up  of  101  posts  expeditiously,
preferably, within four months.

9.    Not satisfied with the aforesaid outcome of the writ appeal, the  NTPC
has filed the instant appeal.  Three other appeals arising out  of  SLP  (C)
No.33518-33519 of 2011, SLP (C) No.33772 of 2013 and  SLP  (C)  No.33784  of
2013 are filed by those candidates who were selected and  appointed  to  the
posts but their selection has been set aside.  Therefore, as  far  as  these
four appeals are concerned, they arise out of the same judgment of the  High
Court wherein aforesaid limited issue is to be considered namely whether  it
was incumbent  upon  the  NTPC  to  give  advertisement  in  the  newspapers
notifying the vacancies.

10.   It is the submission of the learned counsel appearing  for  NTPC  that
having regard to  the  facts  of  this  case  namely  where  requirement  is
confined to class/category of persons (Land Oustees in  the  present  case),
it would not be necessary to bring  out  advertisements  in  newspapers  and
recruitment through the Employment Exchange and local circulation of  Notice
would be consistent with the  principles  of  Articles  14  and  16  of  the
Constitution of India.  It was argued that the Land Oustees  reside  in  the
village  and  sub-divisional  towns  and  local  circulation  of  notice  in
addition to the requisition from the Employment  Exchange  was  appropriate.
Distinction was sought to  be  drawn  between  direct  recruitment  open  to
public and recruitment confined to a particular class/category  of  persons.
It was submitted that in the later category, this  Court  has  held  in  the
case of Nihal Singh & Ors. v. State of Punjab, (2013) 14 SCC 65 that such  a
procedure making recruitment through the Employment Exchanges is  consistent
with the requirement of Articles 14 and 16 of  the  Constitution,  following
the judgment in the case of Union of India v.  N.  Hargopal,  (1987)  3  SCC
308.  The learned counsel also relied on the judgment in the  case  of  Arun
Tiwari & Ors. v. Zila Mansavi Shikshak Sangh & Ors., (1998) 2 SCC 332  where
the earlier judgments in the N. Hargopal and K.B.N. Visveshwara Rao,  (1996)
6 SCC 216 were duly considered.

11.   The learned counsel for respondent Nos.1 and 2,  on  the  other  hand,
sought to justify the order of the High Court,  based  on  the  judgment  of
this Court in N. Hargopal  and  K.B.N.  Visveshwara  Rao  (supra).   We  may
record that the learned counsel for respondent Nos.1 and 2 also ventured  to
submit that there were certain other irregularities as  well,  but  as  that
was not the foundation of their case nor is the  reason  for  setting  aside
the selections by the High Court, we declined to  look  into  those  alleged
irregularities.

12.   It would be pertinent to point out  at  this  stage  that  during  the
pendency of these proceedings,  some  subsequent  events  have  taken  place
which would demonstrate that it may not be  even  necessary  to  decide  the
issue involved.

13.   In the  special  leave  petitions  filed  by  the  NTPC  and  selected
candidates, notices were issued  and  when  these  petitions   came  up  for
hearing on 09.05.2013 after notice, following orders were passed:
      “SLP (c) No.33518-33519 of 2011

      Heard Learned counsel for the Petitioners.

      Looking to the facts and circumstances of the  case,  it  is  directed
that subject to final outcome of the  Special  Leave  Petition,  Eighty  Six
(86) persons are permitted to resume their duties, especially  when  it  has
been stated by NTPC that their working is adversely affected because of  non
availability of staff.

      SLP (C) No.31026 of 2011 and SLP (C) No.4686 of 2012

      Respondent Nos.1 and 2 in the above SLPs are the persons who have  not
been offered any appointment at this stage and their names are also  not  in
the waiting list.  The  petitioner  –  NTPC  is  directed  to  consider  the
eligibility of the said respondents and inform this Court whether  they  are
eligible for appointment or not.

      Rejoinder be filed within four weeks.

      List in the month of August, 2013 on a non-miscellaneous day.”


14.   At this stage, two of the  selected  candidates,  who  had  not  filed
separate SLP filed impleadment applications in  SLP  (C)  No.33518-33519  of
2011 which was allowed on 19.08.2013.   In  respect  of  these  two  persons
also, order was passed on 22.11.2013, directing  NTPC  to  appoint  them  as
well as they were at par with others who had  been  selected  and  in  whose
case order dated 09.05.2013 were already  passed.   Order  dated  22.11.2013
read as under:
      “Heard Mr. S.B. Mahayana, learned senior counsel in support  of  these
I.As..  He points out that two persons  whom  he  is  representing,  namely,
Bhaskar Bhushan and Dhirendra  Kumar  Singh  have  been  issued  appointment
orders.  This is on the footing that their  land  has  been  taken  over  by
NTPC.  Mr. Sunil Kumar, learned senior counsel appearing for NTPC  does  not
dispute it.  We have also heard Mr. Prem  Shankar  Sharma,  learned  counsel
appearing for respondent Nos. 1 & 2 in the  above  special  leave  petitions
and also appearing in support of other intervenors in the main SLP.  In  our
view,  as  observed  by  this  Court  in  order  dated   09.05.2013,   these
appointments will be subject to the  final  outcome  of  the  special  leave
petitions.   These  I.As.  Are  accordingly  disposed  of.   NTPC  will  act
accordingly.”


15.   The reading of the aforesaid two  orders  reflects  that  on  the  one
hand, all those who were selected in the  selection  process  undertaken  by
the NTPC were appointed.  On the  other  hand,  in  respect  of  respondents
Nos.1 and 2 herein who could not apply for the post, direction was given  to
the NTPC to consider their eligibility and inform  the  outcome  thereof  to
the Court.

16.   Respondent Nos.1 and 2 were thereafter considered for the post on  the
same yardstick which were  applied  by  the  NTPC  while  making  selections
earlier.  However, it is reported by the NTPC that these  two  persons  have
failed in the selection.

17.   The position which emerges from the aforesaid narration of  events  is
this:  The  persons  who  were  selected  were  admittedly  eligible  to  be
considered as they were also Land Oustees.  No doubt,  the  posts  were  not
advertised by publication in the newspapers.  Facts remains  that  only  two
persons namely respondent Nos.1 and 2  made  a  grievance  in  this  behalf.
These two persons have also been considered for the posts under  the  orders
of this Court.  However, they have failed  in  the  selection.   Others  who
were selected have already joined the posts.  In  a  matter  like  this,  no
useful purpose would be served in carrying out the directions  of  the  High
Court to have fresh selection process after issuing  advertisements  in  the
newspapers.

18.   We may record at this stage that about  70  other  persons  have  also
filed I.A.'s supporting the stand of respondent Nos.1 and  2.   However,  it
is of significance to mention that all these persons had  duly  participated
in the selection process but could not make their mark  and  failed  to  get
selected.  Therefore, these persons have no right  to  raise  any  grievance
about non-publication of the advertisement in the newspapers.

19.   Having regard to  these  peculiar  facts  and  aforesaid  developments
during the pendency of these appeals, we find that there is no necessity  to
carry out any fresh selection process as directed by the High Court  in  the
impugned judgment.  The appeals are allowed and the direction is set aside.
      Civil Appeal @ S.L.P. (C) No.4686/2012
      Leave granted.

20.   This appeal is filed by five persons  who  also  participated  in  the
selection process and were selected.

21.   Pursuant to the orders dated 09.05.2013 directing NTPC to appoint  the
selected candidates, two out of the aforesaid  five  appellants  have  given
the appointment.  However, cases of other three appellants are  rejected  as
in the medical examination conducted, they  are  found  medically  unfit  as
suffering from 'colour blindness'.  They are  appellants  Nos.1,  4  and  5.
Learned counsel appearing for these appellants submitted that their  medical
examination was done in haste; they had  made  representation  to  the  NTPC
regarding constitution of Medical Board to re-examine their cases  to  which
NTPC was not agreeing; they had got themselves medically examined  from  the
same hospital and same doctor namely  NTPC,  Kahalagaon  Hospital  and  also
outside doctor and they had duly certified that these  appellants  were  not
suffered from 'colour blindness'.  Additional  affidavit  dated  26th  June,
2005 is filed including the result of their medical  examination  from  Out-
Patient Department of NTPC, Kahalagaon Hospital, as well as opinion of  some
private Doctors in support of the aforesaid submission.

22.   Having regard to the aforesaid facts, we are of the  opinion  that  it
would be in the interest of justice that NTPC  constitutes  another  Medical
Board for re-examination of these three appellants and decide their fate  on
the basis of the opinion given and take  further  action  on  the  basis  of
opinion given by the reconstitute Medical Board.

23.   This appeal is disposed of on the aforesaid terms.


                                   …......................................J.
                                                            (J. Chelameswar)


                                   …......................................J.
                                                                (A.K. Sikri)




New Delhi;
September 05, 2014.

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