Madras High Court
S. Lakshmi Prabha vs The Government Of Tamil Nadu on 13 May, 2008
Author: K. Chandru
Bench: K. Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13..5..2008 CORAM THE HONOURABLE MR. JUSTICE K. CHANDRU W.P. No. 4113 of 1998; W.P. No. 19761 of 1999; W.P. Nos. 25971, 27817, 34838, 41392 and 41541 of 2005; W.P. Nos. 524 to 527, 725, 7560, 10951 to 10963, 11031 to 11056, 11732, 19765, 26133, 26134, 27829 to 27838, 41121, 41184, 42147, 42148, 43708, 46929 and 47876 of 2006; and W.P. Nos. 4319, 27920, 28208 and 28209 of 2007 and W.P.M.P. No. 6231 of 1998 in W.P. No. 4113 of 1998, W.P.M.P. No. 29014 of 1999 in W.P. No. 19761 of 1999, W.P.M.P. No. 37722 of 2005 in W.P. No. 34838 of 2005, W.P.M.P. No. 44451 of 2005 in W.P. No. 41392 of 2005, W.P.M.P. No. 44638 of 2005 in W.P. No. 41541 of 2005, W.P.M.P. Nos. 604 to 607 of 2006 in W.P. Nos. 524 to 527 of 2006, W.P.M.P. No. 846 of 2006 in W.P. No. 725 of 2006, W.P.M.P. No. 8313 of 2006 in W.P. No. 7560 of 2006, W.P.M.P. Nos. 12460 to 12472 of 2006 in W.P. Nos. 10951 to 10963 of 2006, W.P.M.P. Nos. 12547 to 12572 of 2006 in W.P. Nos. 11031 to 11056 of 2006, W.P.M.P. No. 13348 of 2006 in W.P. No. 11732 of 2006, M.P. Nos. 1&2 of 2006 in W.P. Nos. 27829 to 27838 of 2006, M.P. Nos. 1 & 1 of 2006 in W.P. Nos. 42147 and 42148 of 2006, M.P. No. 1 of 2006 in W.P. No. 43708 of 2006, M.P. No. 1 of 2006 in W.P. No. 46929 of 2006, M.P. No. 2 of 2006 in W.P. No. 47876 of 2006, M.P. No. 1 of 2007 in W.P. No. 4319 of 2007, M.P. Nos. 1 and 2 of 2007 in W.P. No. 27920 of 2007 and M.P.Nos.1 of 2007 in W.P. Nos. 28208 and 28209 of 2007 W.P. No. 19761 of 1999: S. Lakshmi Prabha .. Petitioner Vs. 1. The Government of Tamil Nadu Rep. by its Secretary Industries Department Fort St. George Chennai 9 2. The Collector Ranipet N.A.A. District 3. The Unit Head BHEL / BAF Ranipet N.A.A. District 4. The Deputy General Manager Personnel & Administration Department BHEL / BAP Ranipet N.A.A. District .. Respondents Petition filed for issuance of writ of Mandamus directing the respondents 3 and 4 to consider the appointment of the petitioner in preference to others to Class III and Class IV employment and forbear the respondents 3 and 4 from appointing persons other than land losers to the post of Class III and Class IV employment. For Petitioners in this : Mr. P.H. Manoj Pandian W.P. and other W.Ps. for M/s Anand, Abdul and Vinoth Associates For Petitioners in : Mr. R. Margabanu W.P. Nos. 4113/98, 19765, 27838 & 47876/06 For Petitioners in : Mr. R. Karunagaran W.P. No. 25971/95 For Petitioners in : Mr. P. Mani W.P. Nos. 26133, 16134 & 41121/06 For Petitioner in : Mr. G. Jeremiah W.P. No. 27920/07 For Respondents 1&2 : Mr. P. Muthukumar, GA For Respondents BHEL: Mr. B.T Seshadri in W.P. No. 19765 / 99 For Respondents BHEL: Mr. Sanjay Mohan in all other W.Ps. For M/s Ramasubramanian Associates COMMON ORDER
The petitioners in all these writ petitions were land owners and their lands were taken over by the respondent Bharat Heavy Electricals Ltd. [for short, 'BHEL'], which is wholly owned by the Central Government. The said Company has a Boiler Auxiliaries Project (BAP) at Ranipet. In order to locate the plant at Ranipet, 1389 acres of land were acquired in and around the villages of Narasingapuram, Mukundarayapuram, Sikkarajapuram and Vadakkal in Ranipet Taluk, North Arcot District.
2. The first respondent State Government acquired these lands by G.O. Ms. No. 81 Industries Department dated 27.01.1981. In this G.O., the Government had promised job guarantee for the land losers. It is necessary to reproduce the said G.O. since the petitioners relied heavily upon the said G.O. for enforcing their rights.
"In the Government Order read above, the Government have ordered the Acquisition of an extent of about 1400 acres of land in the village of Narasingapuram, Mukundarayapuram, Sikkarajapuram and Vadakkal of North Arcot District for putting up the Boiler Auxiliaries Plant of Bharath Heavy Electricals Limited. In paragraph 4 of the said Government Order it was indicated that the Government would take a decision on the question of bearing the cost of the land on getting a report from the Collector, North Arcot District.
2. The Collector, North Arcot District has now reported that based on the sales statistics relating to the period prior to December 1979, the average cost of wet lands is about Rs.6,000/- per acre and the cost of dry lands with irrigation facility is about Rs.5,000/- per acre and that the enhancement of the land value cannot be ruled out altogether.
3. It has been represented to Government that lands of Bharat Heavy Electricals Limited at Tiruchi were acquired and given to Bharat Heavy Electricals Limited free of cost and that precedents showed that the statement Government had borne the cost of land for such projects. After careful examination of the matter, the Government have decided that they may bear the cost of acquisition, subject to a ceiling of Rs.75 lakhs (Rupees seventy five lakhs only) and subject to the following conditions:-
(a) In the matter of recruitment in the Boiler Auxiliaries Plant preference should be given to the land owners who will be deprived of their wet land on account of the acquisition of the lands for this project
(b) in the case of land owners who will be completely deprived of their entire extent of land at least one member from each family of displaced land owners should be given employment in the project.
(c) No further grant / Financial assistance shall be given to any other item of work such as housing and provision of water relating to this project.
4. The Director of Industries and Commerce is requested to take necessary action to make provision in the Budget to give effect to the decision above. The General Manager, Bharat Heavy Electricals Limited, Ranipet Expansion Scheme is requested to ensure that the conditions in paragraph 3 above are fulfilled."
[Emphasis added]
3. When these promises were not fulfilled by the respondent BHEL, a writ petition being W.P. No. 4322 of 1983 was filed by Sikkarajapuram Narpani Mandram seeking for a direction to provide employment in the BHEL. During the pendency of the writ petition, this Court passed a direction on 22.10.1983 in W.M.P. Nos. 6514, 13133 and 13134 of 1983 and the same is extracted below:
"In the nature of the claim made by the writ petition, to show that family members of owners of lands have been appointed as per the assurance extended, the third respondent in the writ petition to prepare a tabulated statement of the names of persons whose lands have been acquired, by securing copies of awards from the Land Acquisition Officer. In respect of each family involved in the acquisition, name of the member of the family who had been recruited and the post to which appointment had been made, to be furnished. Thereafter, on production of those materials, it would be for the petitioner to demonstrate to this Court that there has been an unjust denial of employment by the third respondent in the writ petition, in contravention of the assurances given by the State. Deponent of affidavit now states that he is agreeable to be appointed as unskilled worker. Hence he can now be so appointed."
4. Subsequently, when the matter came up for final hearing, this Court, by an order dated 20.6.1991, recorded the undertaking given by Mr. B.T. Seshadri, learned counsel for the BHEL and disposed of the writ petition with the following observations:
".... According to Mr. B.T. Seshadri, learned counsel for the respondents 2 and 3 that these respondents have provided employment to all persons from whom the lands were acquired and consequently the petitioner cannot have any grievance. However, the learned counsel would represent that the respondents 2 and 3 did not make any promise and consequently, it is not open for the petitioner to seek fulfilment of the promise, which is not made by the respondents 2 and 3. However, it is brought to the notice of the court that the respondents 2 and 3 have provided employment to all persons concerned and that the petitioner cannot have any grievance. If any family is left out from providing appointment, it is always open to the petitioner to directly approach the respondents 2 and 3 and the respondents 2 and 3, as and when vacancies arise, may consider those persons for appointment...."
5. It is stated by the respondent BHEL in their counter affidavit dated 12.12.2007 filed in W.P. No. 27920 of 2007 that by the year 1984, 300 persons were given employment pursuant to the G.O. issued by the Government. The process was continued over the years and by June 1991, all 548 eligible persons were given employment.
6. In the meanwhile, there were number of agitations by the local people, who lost their lands due to the land acquisition and the District Collector, North Arcot convened a meeting on 13.8.1985 between the Revenue Officials and the BHEL officials. The District Collector had categorised 1095 cases in a list of eligible land sufferers. It was ultimately stated that out of 1095 persons, BHEL agreed to appoint 201 persons in various posts for which they had eligibility. Again, on 07.10.1985, another meeting was convened by the District Collector and the BHEL was impressed to take into account all the eligible persons for providing employment.
7. Not satisfied with the steps taken by the BHEL in fulfilling their promise, 150 land losers filed six writ petitions before this Court being W.P. Nos. 19839 and 20127 of 1994 and W.P. Nos. 2906, 3123, 5339 and 6060 of 1995 and sought for employment with BHEL in terms of the promise held out by them. This Court disposed of those petitions by a common order dated 18.9.1995 and paragraphs 4 to 6 of the said order read as follows:
Para 4: "The counsel for the respondent Company fairly submitted that as and when posts become available in the respondent's factory by way of Casual Labour or otherwise, and if the petitioners, after due verification, are found to be the persons who are eligible for consideration on the ground that their families had lost the lands which were acquired for the company, the Company would consider their cases in preference to others. That is the best that can be done for the petitioners at this stage. There cannot be any unlimited right to the family whose land was acquired to have an offer employment made, decades after the acquisition was completed. Any such claim ought to have been made within a reasonable span of time from the date on which the land was acquired. However, in view of the fact that the respondent Company is agreeable to give their educational qualification, suitability, experience, etc., the petitioners may claim the benefit of the offer so held out to them now.
Para 5: As regards the persons who are now employed and who claim a right to have their services regularised, no such direction can be given in these writ petitions. As and when vacancies arise in the regular cadres, depending upon the length of service put in by the petitioners, their claim for regularisation, will no doubt be considered by the employer. It has been held by the Supreme Court in more than one decision that the claim for regularisation would involve investigation of questions of fact which cannot properly be done in writ proceedings.
Para 6: All these writ petitions are dispose of with the direction that (a) such of the petitioners who claim to have lost their lands, shall be considered, in preference to others subject to verification of their claim and subject to their suitability, qualification, experience, etc., and (b) such of the petitioners who are now in employment, will be considered for regularisation as and when vacancies arise in the regular cadre."
8. The petitioners in W.P. No. 19839 of 1994 filed a Writ Appeal being W.A. No.1394 of 1995 challenging the said order. The said writ appeal was disposed of by a Division Bench vide its judgment dated 05.02.1996. The operative portion of the judgment reads as follows:
"While maintaining the directions issued by the learned single Judge we further make it clear that as and when the vacancy or vacancies arises in BHEL for which appellants are eligible, they shall be considered first for those vacancies before considering others and if the Appellants are found eligible they are entitled to be appointed in such vacancies."
9. When another set of three persons (M/s R.Shanthi, Y. Nixon and Rajan) filed W.P. No. 7937 of 1995 for similar relief, the same was dismissed vide order dated 28.6.1995 by another learned Judge of this Court with the following observations:
"The petitioners are entitled to such preference only in accordance with the Government orders as are now in force which regulate such employment. The order issued by the Central Government, in this regard, clearly would indicate that it is only if the petitioners are registered with the Employment Exchange and if their names have been sponsored for position in the respondents' Industry to which they are suitable and then preference will be given to them. To that extent, the petitioners may obtain preferential treatment subject to their being qualified for the position and being sponsored by the Employment Exchange. The direction which is now sought for cannot be granted. Hence, the writ petition is rejected subject to the observations made above."
10. The said order was challenged in writ appeal being W.A. No. 342 of 1996 and another Division Bench, by its judgment dated 10.7.1997, disposed of the writ appeal with the following directions:
"Therefore, the claim of the appellants herein shall be considered first for the vacancies before considering the names of other persons and if the appellants are found eligible they are entitled to be appointed in such vacancies. If the appellants are able to satisfy the authorities in regard to their entitlement for employment the appellants may apply in preferential treatment subject to their being qualified for the position and the Bharath Heavy Electricals Limited shall consider their claim subject to their requirements / norms and pass appropriate orders accordingly. The Writ Appeal is ordered in the above terms."
11. When these promises were not fulfilled, one K. Gopu, who was the sixth petitioner in W.P. No. 6060 of 1995, filed another writ petition being W.P. No. 4113 of 1998, once again, seeking for a direction for his appointment. In response to that writ petition, the Deputy General Manager (Personnel and Administration) of the BHEL filed a counter affidavit dated 20.7.1999, in paragraph 7 of which, it was averred as follows:
"I state that the 71 persons who were employed as NMR on sporadic basis and they were given work depending upon the exigencies. Out of these 71 persons 15 persons have already been regularised in terms of the judgment of this Hon'ble Court in the writ petitions as well as in the writ appeal. The remaining persons have got to be considered for regularisation as and wen vacancy arises subject to the qualification, suitability in terms of the judgment. Further remaining 79 persons who also claimed to have lost their lands and who have filed the writ petitions as stated above shall be given preferential treatment for employment...."
12. The State Government, instead of satisfying themselves about the allegations made by the petitioners in various writ petitions, was satisfied with the steps taken by the BHEL as can be seen from the counter affidavit dated 30.3.2000 sworn to by the then Additional Secretary to the Government, Industries Department. In fact, paragraph 8 of the counter affidavit was a verbatim reproduction of paragraph 7 of the counter affidavit filed by the BHEL referred to above. This apathy by the State Government, once again, made the local people to conduct various types of agitations for enforcing the promise made by the respondent BHEL.
13. Right from the time when the common order was passed on 18.9.1995, followed by two Division Bench's order (the last one being on 10.7.1997), the respondent BHEL did not call for any application from the land losers and it was only on 28.10.2005, nearly after a period of ten years, they asked the individuals to appear before a Committee for considering their case. In that letter, various directions issued by this Court were referred to and the following paragraphs from the circular may be reproduced:
"You are called upon to be present before a committee on <<date>> at <<time>> 00 hrs. at HR Conference Hall, BHEL, Ranipet along with your personal details furnished in the Proforma enclosed as Annexure. You are also requested to bring all your original documents in support of your Age, Qualification, Community and land acquired for BHEL, Ranipet.
In support of your personal identity, you are required to produce your Voter's Identity Card. In case if you are not issued with the Voter's Identity Card, you should bring your ration card along with your attested passport six photograph.
In case of selection as Unskilled Worker, initially you will be appointed as Temporary Employee / Unskilled Worker, for a period of 2 = yrs (ie., 1 = yrs on daily wages and 1 yr. on consolidated wages) This call letter does not guarantee your selection for the post of Unskilled Worker and the selection will be strictly in accordance with the direction of the High Court as mentioned above and the relevant Rules & Regulations of the company concerning recruitment.
You are called upon to appear for the aforesaid selection on the date and time as mentioned above and to avail this final opportunity offered to you as per the judgment of High Court."
Subsequent to this exercise of the so-called interview, a stereo typed order dated 02.3.2006 was made ready by the respondent BHEL rejecting the claim of all the land losers for employment. The ready-made order contained four reasons and all that the respondent will have to do is to tick against any one or more reasons to reject the claim of the petitioners. The reasons found in the order are as follows:
"1) Your claim to have lost your land is not established.
2) a) You do not possess the required minimum qualification.
b) You do not have required experience.
3) You have exceeded the age limit prescribed as per Company rules."
14. Even subsequent to this exercise, many of the land losers were not given any employment and when it was given, it was only for a fixed tenure or for the post of Unskilled Worker (USW) category. Thereafter, due to the pressure of the local people, a meeting was convened by the District Collector on 24.8.2006 between the Revenue Officials and the officials of BHEL. In that meeting, the District Collector impressed upon the BHEL officials to adhere to the promise given by the State Government for acquiring the lands for the plant. After the meeting, certain recommendations were given by the District Collector and accepted by the BHEL. It may be extracted below:
"1) The Revenue Divisional Officer, Ranipet to verify the Award passed and cheques issued to the land losers and informed to BHEL.
b) The total no. of persons appointed should identified by the BHEL and informed to Revenue Divisional Officer, Ranipet.
c) The list of persons appointed already should be furnished to the Revenue Divisional Officer, Ranipet.
d) Next meeting on the issue of appointment to Land Losers, discussions may be arranged after completion of work in item No. 1 to3."
15. It was thereafter, another meeting was convened on 08.02.2007 by the District Collector. In that meeting, the respondent BHEL made a statement regarding their commitment of providing employment which is as follows:
1) Total No. of awards passed :1331
2) No. of Land Loosers given employment :606
3) No. of Land Loosers yet to be given employment :725
4) Name of Land Loosers not found in the list given by BHEL :59
5) No. of Land Loosers requesting job at present :125
6) No. of Land Loosers called for interview and attended and rejected :75
7) No. of Land Loosers requests are kept pending in BHEL :50
On the basis of these details, the respondent BHEL stated that there were no vacancies available in the plant and many of the applicants had no experience and were over aged and they were also not eligible as per the Company's Rules for any employment.
16. This statement was countered by the representatives of the petitioners by stating that there were 600 to 700 labourers engaged by the BHEL through contract system and for this purpose, 7 to 8 contractors have been awarded contracts. The contract system was in vogue for more than ten years. Therefore, it was a misnomer to state that there were no vacancies. It was also pointed out that for the year 2006-2007, the BHEL had received orders to the tune of Rs.2700 Crores and they are also expanding the plant and there were moves to recruit 750 skilled and unskilled workers. The representatives also pointed out that the lands were given free of cost and about 250 acres were kept with them without any utility.
17. The District Collector made certain suggestions in that meeting which were also accepted by the BHEL. In the minutes of the meeting dated 08.02.2007, it was recorded as found below:
"The Collector has suggested the BHEL Officials to verify the name of 125 Land Loosers requesting employment at present and offer comments on it to finalise the list of Land Losers for giving employment and send them to the Collector through the Revenue Divisional Officer, Ranipet before the end of this month (February, 2007) and it will be taken up for discussion in next meeting to be convened in the 2nd week of March 2007.
The BHEL Officials have accepted Collector's suggestion. However they informed that every appointment in the BHEL has to be approved by the BHEL Board. The Collector has suggested the BHEL Officials to take necessary steps to put up this subject matter before the Board for discussion. At the same time the Collector will also write a letter to the Chairman and Managing Director of BHEL in this regard."
18. It was after this meeting the respondent BHEL wanted to resile from all their commitments in providing jobs to the land losers. The Additional General Manager, by name, R.Palanivelu, who attended the meeting, wrote a letter dated 12.3.2007 to the District Collector (nearly after one month) in which he relied upon the Office Memorandum dated 03.02.1986 issued by the Department of Public Enterprise, Government of India, which allegedly declared as follows:
"... "any understanding, formal or informal, in regard to offer of employment to one member of every dispossessed family in the project will stand withdrawn"...."
19. Even though the said memorandum was in existence for over 20 years, it was for the first time, the BHEL, with a view to defeat the promise made by them, suddenly relied upon the above Office Memorandum. Apart from the said statement, they had also mentioned that as many as 125 persons have filed writ petitions before this Court and since the matter is subjudice, they cannot make any commitment.
20. Notwithstanding the same, the District Collector convened a meeting of Revenue Officials, BHEL officials and the representatives of the land losers on 26.3.2007. In that meeting, the respondent BHEL refused to make any commitment and the District Collector recorded their stand in the minutes dated 26.3.2007, which reads as follows:
"BHEL Authorities have informed the Collector that their action is based on the High Court judgment and any further employment to the Land Loosers will be considered only after the receipt of judgment on the writ petitions pending before High Court, Chennai. It was decided to await the Hon'ble Court verdict on this and the meeting came to an end."
21. After the break down of the conciliation meeting held by the District Collector and having taken the stand that they have complied with the earlier orders of this Court about considering the case of the land losers for employment before any outside recruitment made, the respondent BHEL invited applications for 175 posts of skilled artisans by Employment Notice No. 1 of 2007. The said Notification was advertised in all the newspapers. The Ranipet BHEL (BAP) Land Losers' Welfare Association filed a writ petition being W.P. No. 27920 of 2007 seeking for a restrained order to the respondent not to employ any person without considering the claims of 725 displaced land owners. This Court admitted the writ petition and passed the following order dated 22.8.2007 in M.P. No. 1 of 2007:-
"Mr. T. Srinivasan, learned Additional Government Pleader takes notice for R1, 2 and 4. Learned counsel for the petitioner is directed to take notice to R3 returnable by 03.9.2007. Private notice is also permitted.
Third respondent can proceed with the Selection Process but none should be appointed till 03.9.2007."
22. Thus, the petitioners, having failed in their attempt to secure employment for over a period of 25 years, have turned their hopes on the decision to be rendered by this Court and have activated hearing of these writ petitions.
23. Mr. R. Manoj Pandian, learned counsel appearing for the majority of the petitioners, contended that providing for job to the land losers by a Public Sector enterprise was not something new. He referred to the decision of the Supreme Court in Banwasi Seva Ashram v. State of U.P. [(1992) 2 SCC 202] wherein the National Thermal Power Corporation was directed to provide employment to the land losers. Paragraph 6 of the said judgment and direction Nos. 6 to 8 contained therein may be usefully reproduced:
Para 6: "We direct that the following measures to rehabilitate the evictees who were in actual physical possession of the lands/houses etc. be taken by the NTPC in collaboration with the State Government:
(1) to (5) .. Omitted..
(6) Unskilled and semi-skilled posts in the project shall be reserved for the evictees subject to their eligibility and suitability. (7) The NTPC shall give preference to the oustees in employment in class III and IV posts under its administration subject to their suitability and eligibility. (8) The evictees be offered employment through the contractors employed by the NTPC."
24. He also referred to the subsequent decision of the Supreme Court in Calcutta Port Trust v. Deba Prosad Bag [1994 Supp (2) SCC 101]. In that decision, the Supreme Court upheld the order of the Calcutta High Court in giving direction to the Public Sector Unit. The directions given by the High Court were extracted in paragraph 9 of the judgment, which read as follows:
(a) Until the cases of the petitioners are considered for employment in terms of this order, no appointment shall be made in the Class IV grade excepting those who are covered by the orders of this Court;
(b) The petitioners shall give all particulars of their respective lands which were acquired for the Haldia Dock Complex of the Calcutta Port Trust within four weeks from the date of communication of this order. The petitioners will also give their employment exchange card number etc.
(c) The petitioners shall also furnish the details of qualifications and experience, if any, so that their cases may be considered for appointment in Class IV posts.
(d) The respondents shall, within four weeks after the particulars are furnished by the petitioners, scrutinise the cases through their own machinery and agency and not through the Screening Committee as specified in the Memorandum No. 323-EMP dated 12th May, 1986. After scrutiny if it appears that the lands, (sic shown in the) particulars, were acquired then the respondents shall consider the cases of the petitioners for appointment in Class IV grade irrespective of any other resolution, qualification or any other condition as a special case.
(e) If any petitioner on being considered is not found suitable for employment as a Class IV staff, then the reasons thereof shall be disclosed to such petitioner(s) and in that case such disqualified petitioner(s) will be at liberty to move before any appropriate forum.
(f) If upon consideration of the relevant facts as mentioned in the judgment, any of the petitioners are found eligible for employment, they shall be provided with employment in Class IV grade as early as possible having regard to the available vacancies.
25. The appeal filed by the Calcutta Port Trust was rejected by the Division Bench of the Calcutta High Court. On further Appeal, the Supreme Court upheld those directions in the aforesaid case except holding that all claims should be subjected to screening by a Committee. The following passage found in paragraph 13 may be extracted below:
Para 13: ".... Certainly, some person or authority will have to examine the correctness and bona fides of those who claim to be uprooted persons. It is appropriate that such examination is done by a Screening Committee. Such a screening would ensure elimination of bogus claims. It is a wholesome principle which requires to be adopted in this case. Therefore, we modify the order under appeal and direct that the cases of the respondents will be considered by the Screening Committee. The Port Trust had screened 21 persons in the case of Jayanta Kumar Prodhan & Ors. before employing them. Only after the screening process, the appellant will be required to implement the directions of the learned Single Judge as confirmed by the Division Bench...."
26. He also relied upon the judgment of this Court in S. Dharanipathy / M. Lakshmi Devi v. Secretary to Government of Tamil Nadu, Revenue Department and others [1997 Writ L.R. 498] and referred to the following passages found in paragraph 14 of the said order:
Para 14: "In the present case, already a Government Order has been issued ensuring rehabilitation by way of employment of all the uprooted family by affording them one employment for each family...."
".... The respondents are also estopped by conduct and the failure to provide atleast one employment to one displaced family in the fourth respondent's establishment or in surrounding Defence establishment is arbitrary and the denial in so far as the respondents are concerned. The State Government, District Collector and other Public Authorities have been keeping silent and merely forwarding the letters to the fourth respondent and the fourth respondent's mere acknowledgments of the letters are of little assistance to those who have been displaced by eviction. Every effort should have been made by the respondents to provide one employment to each family displaced by the acquisition. Not only the private lands of the persons or the individuals have been acquired, but vast tracts of poramboke land where the villagers have together graze cattle and also are utilising the said poramboke lands as their livelihood of grazing their cattles. The rehabilitations should be not only in form but also in spirit and factual. The fourth respondent should have taken all efforts to provide one employment to each family as there has been a commitment not only by the fourth respondent but also by the Ministry of Defence as seen from the statement made before the Parliament by the Union Government."
27. The learned counsel also brought to the notice of this Court the fact that the above said judgment was upheld by the Division Bench in writ appeal being W.A. Nos. 326 and 327 of 1998, etc. batch cases vide its judgment dated 31.8.2007. Speaking for the Division Bench, S. Mukhopadhaya, J. observed in paragraphs 5 and 6 as follows:
Para 5: "From the aforesaid directions, it will be evident that the learned single Judge had not directed to make excess appointment beyond the strength. It has only been ordered that no recruitment against Class III and IV or other lower classes shall be made in the Naval Air Station in question from any other source till one appointment to the members of each of the displaced family is provided. Thus, it is clear that the appointments are to be made against the existing vacancies giving preference to one person of each displaced family, as identified by the District Collector. So far as the age limit is concerned, the question of relaxation will come if only one or other person is over age. That question has to be determined by the competent authority. Taking into consideration the age of persons, that means if a person is much over age, i.e., more than 50 years, in such case, the age may not be relaxed, but in appropriate cases, for certain years, it may be relaxed. As the prescription of qualification of appointment against one or other post is mandatory, we are of the view that no relaxation can be made in this regard. If a person is not qualified, they can be engaged for other menial work such as, skilled or unskilled labourers.
Para 6: In the facts and circumstances, while we are not inclined to interfere with the substantive part of the order passed by the learned single Judge, the said order is modified and clarified to the extent above."
28. He also referred to a judgment of another Division Bench presided by P. Sathasivam, J. (as he then was) relating to Pon Muthu Nadar v. State of Tamil Nadu and others [2006 (3) L.W. 460]. The following passages found in paragraphs 18 and 19 of the said judgment are extracted below:
Para 18: "It is not in dispute that the petitioners whose lands have been taken away and that they are entitled to employment on the basis of G.O. Ms. No. 656, Labour and Employment Department, dated 29.6.1978. The promise given by the respondents to provide employment to the persons, whose lands have been compulsorily acquired at nominal rates, is an obligation and the same cannot be rejected on the ground of laches. Inasmuch as the petitioners are claiming their right based on the Government Order, if they satisfy and are found to be eligible upon scrutiny by the Officers, they are entitled to employment irrespective of delay or laches. Even otherwise, as rightly pointed out by the learned counsel for the petitioner, the learned Judge failed to appreciate that by the very nature, the projects are carried out in a phased manner and employment is given as and when a phase is completed. There is no compulsion on the part of the authorities to provide employment immediately after acquisition. In other words, after completion of the construction and commencement of the project, depending on the availability, employment would be provided at the appropriate time. Further, as said earlier, the petitioners also asserted that they are suffering due to the action of the respondents since the land acquired was their only source of livelihood. All these material aspects have not been considered by the learned Judge, who committed an error in rejecting their claim.
Para 19: In such circumstances, the Common Order dated 21.8.2000 made in W.P. Nos. 14162 and 14189 of 2000 is set aside. Direction is issued to the respondents to fulfil their promise by providing suitable employment to one of the children of each of the petitioners in the third respondent Liquid Propulsion Test Facility Centre under 'Land Affected Category' subject to scrutiny and verification by the officers of the third respondent, within a period of eight weeks from the date of receipt of a copy of this judgment."
29. He also submitted that in respect of the very same BHEL, this Court in more than one judgment, has given a direction to them to provide employment on the basis of the guarantee given by the Government in G.O. Ms. No. 81 Industries Department dated 27.01.1981. He also submitted that despite the assurance given by the State Government, the petitioners, who all belong to the second generation, were made to wait for over 25 years without providing for any employment. He submitted that even the employment given for some of them, were for period of 45 days on term basis and three days deliberate break was given by the BHEL to the workers.
30. A set of eight petitioners filed a writ petition being W.P. No. 34838 of 2005 moved this Court seeking for a direction to grant continuous employment pending the main writ petition. This Court in W.P.M.P. No. 37722 of 2005granted interim direction vide order dated 28.10.2005. Another set of six persons filed a writ petition being W.P. No. 41392 of 2005 seeking for a direction to the respondents to give interim employment to the petitioners and this Court, vide order dated 02.01.2006 in W.P.M.P. No. 44451 of 2005, granted interim direction if the petitioners are eligible and entitled to the relief. Further, another set of six petitioners filed a writ petition being W.P. No. 27838 of 2006 and sought for a direction to provide continuous employment. This Court, by an order dated 24.8.2006, has also granted an interim direction to provide for continuous employment. Even the list furnished by the respondent Management that they had provided employment to as many as 651 persons will clearly show that as many as 454 persons were provided with employment in the category of Un-Skilled Workers (USW) and not with any technical post. Among the eligible persons to get employment, there were many Diploma holders, Degree holders and ITI trained persons and there were as many as 60 persons who had finished +2 courses. In many cases, the respondent engaged the nominee of the land losers as an apprentice / trainee and subsequently, terminated their services. All these were done only as a drama and not with a view to provide regular employment and the G.O. was not observed in its letter and spirit. Therefore, he prayed for a direction to the respondents to provide employment to the petitioners within a time frame.
31. Per contra, Mr. Sanjay Mohan, learned counsel for BHEL, brought to the attention of this Court the judgment of the Supreme Court in Butu Prasad Kumbhar v. Steel Authority of India Ltd. [1995 Supp (2) SCC 225] and relied upon the passage found in paragraph 6 and it may be usefully extracted below:
Para 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."
32. He also submitted that subsequently the said judgment came to be referred to in D.G.M. (HR) P.G. Corpn. of India Ltd. v. T. Venkat Reddy [(2007) 4 SCC 710] and relied upon paragraphs 4 to 7 and it may be usefully reproduced below:
Para 4: "The respondents claimed to be the owners of the land acquired for establishing a sub-station. The Division Bench held that no scheme exists in the appellant Corporation to provide employment to the land oustees or their dependants and that much time had elapsed since the acquisition. It was, however, of the view that a semblance of priority can be recognised so far as the respondents are concerned and as and when the appellant undertakes employment preference was to be given to the respondents. By its very nature, priority presupposes the existence of preference, other things being equal. The respondents cannot be conferred with the benefit of any exemption or relaxation but whenever the appellant Corporation undertakes to any employment to any unskilled posts, first it shall consider the case of the appellants (sic respondents) preferentially, subject to their eligibility and fulfilment of other conditions. It was further directed that in case they were found to be qualified and equal to other persons seeking such employment, the respondents shall be considered on priority basis.
Para 5: According to learned counsel for the appellants there is no scheme in operation and, therefore, the question of providing any priority to any land oustee or his dependants does not arise.
Para 6: "By way of reply, learned counsel for the respondents submitted that the orders of the learned Single Judge and the Division Bench being very innocuous should not be interfered with. No direction for employment has been given and what has been directed is its consideration.
Para 7: At this juncture it would be relevant to take note of what has been stated by this Court in Butu Prasad Kumbhar v. Steel Authority of India Ltd. The apprehension of the learned counsel for the appellant that the implementation of the High Courts order would lead to opening of floodgates 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."
[Emphasis added]
33. He also expressed the inability of BHEL to provide employment to any of the petitioners on the following reasons :
a) As on date BHEL does not have any obligation towards employment after 25 years of land acquisition by Govt. of Tamil Nadu.
b) All eligible cases of land givers were duly considered for employment at the initial stage of the project which works out to nearly 1/3 of the total manpower recruited
c) As the employment to Public Sector companies like BHEL has to strictly follow the recruitment / employment guidelines as per the constitutional rights and it cannot make any reservation towards land givers for the vacancies to be filled as there are no Government guidelines."
34. Apart from these general submissions, the learned counsel also submitted that the BHEL had fulfilled its obligation in terms of the directions issued by this Court vide order dated 18.9.1995 followed by the Division Bench's orders. There were also cases where no application was submitted by the land losers at the time of land acquisition and that many of the claimants were minors at that time. Apart from that, there are claims of sons-in-law and daughters-in-law claiming employment and in some cases, there were internecine quarrel among the brothers in staking a claim for employment. In some cases, the relationship with the land losers was not established and some of them became over aged. In one or two cases, the claim was based upon the person claiming his / her right through adoption but the adoption was not satisfactorily proved. While in some cases when one brother had got a job through the scheme, other brothers in the family were staking for similar employment. When the BHEL granted employment for one member in the family in respect of the land acquisition award, the other members of the same family got the L.A. Award split up in the LAOP Court and on such split Award, staked for separate claim. There were also cases where the subsequent purchaser had staked for employment assistance while the original owner was never before the BHEL. Many of the beneficiaries, when they came for interview, miserably failed and in some cases, they were not found suitable for the employment. All these factors have also been intimated to the petitioners. These details are given in the form of a note filed in the typed set.
35. The learned counsel appearing for the BHEL may be correct in saying that in respect of a family losing the land, there can only be one member of the family will be given the employment assistance and they are not eligible for a second employment for the same family. Therefore, in those cases, the writ petitions filed by the petitioners were not maintainable and they may be dismissed. The following is the list of such persons whose families have already been given employment for the land acquisition done for the BHEL:-
Sl.
No Name W.P. No. Reason for refusal
1.
Krishnan 27817 of 2005 Father given employment and left the service.
2. Poongavanam Ammal 10955 of 2006 Husband Mr. Murugan already employed.
3. A. Ayyappan 11035 of 2006 V. Sethu employed (Nominated by land owner) and his father Annamalai is not the land owner.
4. L. Poongavanam 11037 of 2006 L. Gunasekaran employed. (Nominated by land owner)
5. V. Sasikumar 11044 of 2006 Mr. Gangadaran was given employment.
6. S. Murugan 11046 of 2006 V. Sethu employed (Nominated by land owner) and Mr. Annamalai was not the land owner.
7. N. Durairaj 11049 of 2006 Mr. Narasimhan was given employment.
8. M. Chandren 11056 of 2006 Mothu Pattammal was given employment.
9. M. Ethiraj 11732 of 2006 Mr. Narasimhan was given employment.
10. K. Baskaran 27837 of 2006 A. Shanmugam, nominated by the land owner, was given employment.
11. M. Kotteswari M. Suseela R.Dakshinamurthy K. Murugan 27838 of 2006 V. Settu (nominated by the land owner) was given employment.
L.R. Chidambaram and L.R. Raghupathi, the two brothers were given employment.
Father L.P. Raghavan was given employment.
K. Dorai was given employment.
12. P. Madavan 41184 of 2006 Poongavanam, the land owner nominated P. Gowtham, who was given employment.
These facts were not controverted by the learned counsel appearing for the petitioners. Therefore, in the light of the same, these 12 writ petitions are dismissed.
36. Mr. Sanjay Mohan, learned counsel for the BHEL, by placing reliance upon the judgment of the Supreme Court in Butu Prasad Kumbhar's case (cited supra), submitted that since the petitioners or the actual land owners have been paid the market value for the land acquired by the State, they cannot seek as a matter of right, any employment. However, the Butu Prasad Kumbhar's case came to be referred to in the subsequent judgment in DGM (HR), P.G. Corporation of India Ltd. case (cited supra) and the Supreme Court in paragraph 7 of the judgment, held as follows:
".... 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. .... If there is no scheme, the question of giving any employment would not arise."
Therefore, it is too late for the BHEL to contend that there is no employment guarantee for the land losers.
37. In the present case, the State Government had acquired the land and given it to BHEL virtually free of cost. They had also by their order in G.O. Ms. No. 81 Industries Department dated 27.01.1981, had guaranteed that at least one member from each family of the displaced land owners should be given employment and the BHEL was directed to ensure this condition. This was also followed by the directions issued by this Court in various orders already referred to.
38. It is needless to state that in the modern day Government, any large scale displacement of traditional home land of the people must necessarily provide for rehabilitation package to compensate the suffering. It cannot be said that providing for market value of the land will redeem the miseries of the people, who will be displaced from the land in which they were living for generations together. No development can take place by increasing the miseries of the poor and downtrodden. In many cases, the poor people may not have title to the property but must be having occupational right over the land and their livelihood substantially depends upon that source only. The lives of the people cannot be quantified on the basis of "cost of carbon" as was done while constructing the 5th terminal of the Heathrow Airport in London (U.K.).
39. Our Supreme Court, conscious of the obligation of the State in providing a rehabilitation for the land oustees, is even today monitoring the relief measures being given to the Tribal people displaced by Sardar Sarovar Project (SSP). Any large scale displacement of the human population will bring the wrath of the people. Nandigram and Singur are only pointers to these new developments. Therefore, there is no point in the respondent BHEL listing out the various agitations over the years by the local people displaced by the land acquisition and showing that at many times, the agitators indulged in large scale violence resulting in criminal cases being registered against them. Therefore, this Court is of the opinion that the BHEL, in their own interest, should provide for a transparent procedure in the matter of employment to the land losers. It was rather unfortunate that they should abruptly walk out of the peace parleys conducted by the District Collector who was trying to find a solution to the vexed problem.
40. The contention raised by the learned counsel appearing for the respondent BHEL that the claims of the land losers have already been considered, cannot be accepted unless any credible material is produced before a competent forum. Even the other reasons listed out by BHEL in paragraph Nos. 31 and 32 as reason for rejection do not stand to any legal scrutiny. Since the BHEL is stonewalling any attempt to provide employment to the land losers and showing tardy progress over the last 25 years, is rather unfortunate. Even the decision of this Court rendered during September 1995 resulted in call letters being sent only after eleven years, i.e., in 2006. The BHEL understood the Court orders only when it was backed up by popular unrest and due to the intervention made by the District Administration. Over the period, the BHEL also resorted to outsourcing of their employment through contract labour system and even while doing so, did not make a condition that the contractors must engage persons from the land displaced families.
41. It is rather unfortunate that in many cases, the BHEL had mentioned that the claimants were minors at the time of the land acquisition. But the fact of the matter is that only in 2006, backed by the Court order, they started processing the claims of the land oustees. Even if the claims are made on the basis of extended family as the Government had promised job for one member from each family and hence, the promise will cover the extended family. It is the practice followed in all other acquisition proceedings also. If among the family members there are quarrels, that can be resolved by conciliation and mediation. The same also applies even to the case of adoption and such of the family partition that took place before the land acquisition. The question of over age cannot be put against the land oustees because the BHEL never attempted to provide employment at an earlier point of time and allowed the matters to drift for more than two decades. Therefore, the wholesale rejection of the claims of the petitioners cannot be accepted and all the writ petitions excepting those mentioned in paragraph 33 will have to be allowed.
42. Going by the conduct of the respondent BHEL over the last quarter century and there being a lack of transparency, it is necessary that the claims of the land oustees will have to be processed by a Screening Committee to be appointed by this Court. Such a procedure has been upheld by the Supreme Court in the Calcutta Port Trust case (cited supra) and paragraph 13 of the said judgment can be once again, recapitulated.
Para 13: ".... Certainly, some person or authority will have to examine the correctness and bona fides of those who claim to be uprooted persons. It is appropriate that such examination is done by a Screening Committee. Such a screening would ensure elimination of bogus claims. It is a wholesome principle which requires to be adopted in this case. Therefore, we modify the order under appeal and direct that the cases of the respondents will be considered by the Screening Committee...."
43. Therefore, this Court hereby orders appointment of a Screening Committee comprising of the following persons:-
1. The District Revenue Officer (North Arcot District) - Convener
2. The Revenue Divisional Officer, Ranipet
3. The Tahsildar, Wallajah - Secretary
4. The Additional General Manager (HR&C), BHEL, Ranipet
5. The Deputy General Manager (Law), BHEL, Ranipet
6. The Manager (HR), BHEL, Ranipet The meetings of the Screening Committee shall be convened by the District Revenue Officer and its Secretary will be the Tahsildar, Wallajah. If any difference of opinion crops up or any clarification is required, the same may be referred to the District Collector, North Arcot District for his consideration and opinion and be resolved accordingly.
44. The District Collector (North Arcot) is hereby directed to notify the constitution of the Screening Committee and also give adequate publicity to the land losers to appear before the Committee with necessary records. The Committee shall examine the claims of all the writ petitioners (excepting those cases which have been rejected by this Court) within a period of three months from the date of receipt of a copy of this order and to recommend to BHEL for grant of suitable appointments to the eligible land losers. Till the said exercise is completed, the respondent BHEL cannot proceed with any other appointment to the categories which the land losers are eligible. In case where some of the land oustees are not able to be given employment, the respondent BHEL shall also direct the contractors engaged by them, to employ those persons as was done by the directions approved in the Banwasi Seva Ashram's case (cited supra).
45. In the result,
(a) The following writ petitions W.P. No. 27817 of 2005; and W.P. Nos. 10955, 11035, 11037, 11044, 11046, 11049, 11056, 11732, 27837, 27838 and 41184 of 2006.
will stand dismissed.
(b) The following writ petitions which are of general nature will stand closed in the light of the directions already granted by this Court:-
W.P. Nos. 34838 and 41392 of 2005; and W.P. No. 27920 of 2007.
(c) All the other writ petitions listed below W.P. No. 4113 of 1998;
W.P. No. 19761 of 1999;
W.P. Nos. 25971 and 41541 of 2005;
W.P. Nos. 524 to 527, 725, 7560, 10951 to 10954, 10956 to 10963, 11031 to 11034, 11036, 11038 to 11043, 11045, 11047, 11048, 11050 to 11055, 19765, 26133, 26134, 27829 to 27836, 41121, 42147, 42148, 43708, 46929, 47876 of 2006; and W.P. Nos. 4319, 28208 and 28209 of 2007 will stand disposed of in the light of the directions granted above.
However, the parties are allowed to bear their own costs. All connected Miscellaneous Petitions will stand closed.
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1. The Government of Tamil Nadu Rep. by its Secretary Industries Department Fort St. George Chennai 9
2. The Collector Ranipet N.A.A. District
3. The Unit Head BHEL / BAF Ranipet N.A.A. District
4. The Deputy General Manager Personnel & Administration Department BHEL / BAF Ranipet N.A.A. District K. CHANDRU, J.
gri Pre-Delivery Common Order in W.P. No. 4113 of 1998, etc. batch Delivered on
13..5..2008