Kerala High Court
K.S.Vikraman vs State Of Kerala on 1 February, 2011
Author: C.K.Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
TUESDAY,THE 1ST DAY OF OCTOBER 2013/9TH ASWINA, 1935
WP(C).No. 5302 of 2011 (K)
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PETITIONER(S):
--------------------------
1. K.S.VIKRAMAN, VISHNU VIHAR
ATHANI P.O., ERNAKULAM DISTRICT, PIN-683 585.
2. P.L.VARGHESE, PARACKAL HOUSE,
ATHANI P.O., ERNAKULAM DISTRICT, PIN-683 585.
3. K.K.VARGHESE, KAITTIKKADU,
CHENGAMANAD P.O., ERNAKULAM DISTRICT,
PIN-683 578.
4. M.A.MOHANAN, MANIYAMKULAM,
CHENGAMANAD P.O., ERNAKULAM DISTRICT,
PIN-683 578.
5. M.K.MANI, MANIYAMKULAM,
CHENGAMANAD P.O., ERNAKULAM DISTRICT,
PIN-683 578.
6. P.O.BABU, PADAYADAL, CHENGAMANAD P.O.,
ERNAKULAM DISTRICT, PIN-683 578.
7. K.V.SIVAN, KARIYATTIPARAMBU,
CHENGAMANAD P.O., ERNAKULAM DISTRICT,
PIN-683 578.
8. SARAKUTTY, VISHNU VIHAR,
ATHANI P.O., ERNAKULAM DISTRICT, PIN-683 585.
9. OMANA, MANIYAMKULAM, CHENGAMANAD P.O.,
ERNAKULAM DISTRICT, PIN-683 578.
10. AMMINI, MANIYAMKULAM,
CHENGAMANAD P.O., ERNAKULAM DISTRICT,
PIN-683 578.
11. THANKAMMA, KARIYATTIPARAMBU,
CHENGAMANAD P.O., ERNAKULAM DISTRICT,
PIN-683 578.
...2/-
WP(C).No. 5302 of 2011 (K) -2-
12. VINODHINI, KARIYATTIPARAMBU,
CHENGAMANAD P.O., ERNAKULAM DISTRICT,
PIN-683 578.
13. YELBI, PADAYADAL, CHENGAMANAD P.O.,
ERNAKULAM DISTRICT, PIN-683 578.
14. RADHA, OLLODI, CHENGAMANAD P.O.,
ERNAKULAM DISTRICT, PIN-683 578.
BY ADVS.SRI.P.RAMAKRISHNAN
SRI.C.ANIL KUMAR
RESPONDENT(S) :
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1. STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,
DEPARTMENT OF AGRICULTURE, SECRETARIAT,
THIRUVANANTHAPURAM.
2. KERALA AGRO MACHINERY CORPORATION LTD.,
REPRESENTED BY ITS MANAGING DIRECTOR, ATHANI P.O.
ERNAKULAM DISTRICT, PIN-683 585.
3. TOSHIBA ANAND LAMPS EMPLOYEES UNION, ATHANI
ERNAKULAM, REPRESENTED BY ITS SECRETARY C.A. SIVAN
4. CROMPTON GREAVES LAMPS DIVISION WORKERS UNION (AITUC)
ATHANI, ERNAKULAM, REPRESENTED BY ITS SECRETARY N.P.ELDO.
5. WORKERS ASSOCIATION CROMPTON GREAVES (INTUC) ATHANI
ERNAKULAM, REPRESENTED BY ITS VICE PRESIDENT V.C. PATHROSE.
6. TOSHIBA ANAND LAMPS EMPLOYEES ORGANIZATION (BMS)
REPRESENTED BY ITS SECRETARY C. SUMESH.
R1 BY SR. GOVT. PLEADER SRI. C.S. MANILAL
R2 BY ADVS. SRI.E.K.NANDAKUMAR
SRI.A.K.JAYASANKAR NAMBIAR
SRI.K.JOHN MATHAI
SRI.P.BENNY THOMAS
SRI.P.GOPINATH
R3 TO R6 BY SENIOR ADVOCATE SRI.P.RAVINDRAN
BY ADVS. SRI.MANU GOVIND
SRI.A.JAYASANKAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-10-2013,
ALONG WITH WPC. 6063/2011 & CONNECTED CASES, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
Mn
...3/-
WP(C).No. 5302 of 2011 (K)
APPENDIX
PETITIONER'S EXHIBITS :
EXT.P1 : COPY OF THE IDENTITY CARD ISSUED BY ESI CORPORATION TO THE
1ST PETITIONER.
EXT.P2 COPY OF THE SETTLEMENT DATED 01/02/2011 ENTERED BETWEEN
THE 2ND RESPONDENT AND THE UNIONS REPRESENTING
PETITIONERS.
EXT.P3 COPY OF THE REPRESENTATION DATED 27/6/2010 SUBMITTED BY
THE KAMCO CONSTRUCTION & GENERAL WORKERS UNION (INTUC).
EXT.P4 COPY OF THE COMMON REPRESENTATION DATED 10/2/2011
SUBMITTED BY THE PETITIONERS TO THE 2ND RESPONDENT.
EXT.P4a COPY OF THE GOVERNMENT ORDER GO (MS) 126/2011/AGRICULTURE
DATED 16/5/2011.
EXT.P5 COPY OF THE INFORMATION DATED 2/2/2011 FROM THE
DEPARTMENT OF AGRICULTURE, GOVERNMENT OF KERALA.
RESPONDENT'S EXHIBITS :
EXT.R2(a) COPY OF THE GOVERNMENT ORDER DATED 16/5/2011.
EXT.R2(b) COPY OF THE PETITION DATED 23.6.2010 SUBMITTED BY THE KAMCO
CONSTRUCTION & GENERAL WORKERS UNION TO THE CHIEF
MINISTER OF STATE.
EXT.R2(c) COPY OF THE REPLY DATED 16.11.2010 ISSUED BY THE 2ND
RESPONDENT TO THE 1ST RESPONDENT.
EXT.R3(a) : COPY OF NOTICE DATED 30/12/2009 ISSUED BY THE MINISTER FOR
FISHERIES AND REGISTRATION DEPARTMENT.
EXT.R3(b) COPY OF NOTICE DATED 16/1/2010 ISSUED BY THE MINISTER FOR
FISHERIES AND REGISTRATION DEPARTMENT.
(Contd...)
WP(C).No. 5302 of 2011 (K)
EXT.R3(c) COPY OF COMMUNICATION DATED 6/12/2010 ISSUED BYTHE
DISTRICT LABOUR OFFICER, ERNAKULAM.
EXT.R3(d) COPY OF COMMUNICATION DATED 7/1/2011 OF THE 3RD
RESPONDENT.
EXT.R3(e) COPY OF LIST OF EMPLOYEES AS PROVIDED TO 4TH RESPONDENT.
//TRUE COPY//
P.S. TO JUDGE
Mn
C.K.ABDUL REHIM,J.
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WP(C).NO. 5302, 6063,7198,8097,25056,25824,
25830 of 2011 & 28429/2012
---------------------------------
Dated this the 1st day of October, 2013
JUDGMENT
Issue involved in all these writ petitions pertains to method of appointment of employees in the Kerala Agro Machinery Corporation Limited, which is an undertaking fully owned by the State Government (hereinafter referred to as the 'Corporation' for short). In most of these writ petitions, challenge is against an order passed by the State Government, GO(MS) No.126/11/Agriculture, dt. 16.5.2011. Through the said order the Government have accorded sanction for creation of 211 new posts in the 'Tractor Project' which is being started at the 'Athani unit' of the Corporation, in Ernakulam District, for which the Government have alloted 10 Acres of land. The Government have permitted the Corporation to make appointment of eligible persons in the necessary posts directly, without resorting to the method of appointment through Public Service Commission (PSC). The Government have also directed the Corporation to WP(C). 5302 /2011 & conn. cases. 2 make appointment of 103 persons, who allegedly lost employment due to closure of M/s. Crompton Greaves Ltd., a private company which was functioning in the 10 Acres of land allotted to the Corporation. It was also clarified in the above said Government order that, while making appointment of the said 103 persons, dependents of workers who are above the age of 39 and who are not interested in getting appointment can also be considered. In WP(C).28429/12, a further order issued by the Government, GO(MS) No.94/12/Agriculture, dt. 12.4.2012 is also under challenge. Through the said order the Government have clarified that, for the purpose of rehabilitating the erstwhile employees of M/s. Crompton Greaves Ltd., vacancies arising in the cadre of Work Assistant/General Worker / Sweeper in the Corporation can also be considered, apart from the new posts sanctioned with respect to the 'Tractor unit'.
2. Petitioners in most of these cases are persons temporarily/ provisionally engaged in various units in the Corporation. In one of the cases the petitioners are persons included in the Rank List prepared by the PSC for regular WP(C). 5302 /2011 & conn. cases. 3 appointment in public sector undertakings, including the Corporation herein. One of the main reliefs sought for in these writ petitions is for a declaration that, the Kerala Agro Machinery Corporation Limited is not entitled to make appointments in any of its posts without following the regular procedure of appointment through PSC, Employment Exchange or by inviting applications through public notification. Inter alia, the direction sought for in some of these cases is to command publication of all the vacancies arising in the Corporation and to make the appointments either through PSC or through Employment Exchange. In some of the cases the petitioners are seeking re- appointment/re-engagement as provisional employees and are also seeking regularisation in the service of the Corporation.
3. Brief facts of the case are that, the main unit (Head Quarters) of the Corporation is located at Athani near Nedumbassery in Ernakulam District. Adjacent to the property owned by the Corporation, on its western side, the State Government have leased out an extent of 15 Acres of land to a company named M/s Thoshiba Anand, which was closed down WP(C). 5302 /2011 & conn. cases. 4 during the year 1980. The Government have repossessed the land and thereafter leased out to M/s Compton Greaves Ltd. The said company was also closed down in the year 2002, mainly due to labour unrest. According to the petitioners, all the workers of M/s Crompton Greaves Ltd. had left its service after receiving due compensation. The Government have repossessed the land from M/s.Crompton Greaves Ltd., when was lying vacant for a long period. For the purpose of expansion of the activities in the main unit owned by the Corporation, a portion of the land possessed by the Government, having an extent of 10 Acres, lying adjacent to the Corporation's property, was allotted for starting the new 'Tractor' manufacturing unit. A lease agreement was executed between the Government and the Corporation on 25.5.2009. The petitioners in most of the cases who were engaged on provisional basis at the Athani unit were eagerly waiting for regular appointment in the new project. According to the petitioners, most of them are duly qualified for appointment to various posts and they have got sufficient experience and expertise with respect to the works in the WP(C). 5302 /2011 & conn. cases. 5 Corporation. Representations submitted by the petitioners seeking appointment are produced as exhibits in many of these cases. It is stated that, a trade union claiming to have functioned in M/s. Crompton Greaves Ltd. submitted a representation seeking compassionate appointment in the new 'Tractor unit' of the Corporation. On the basis of the said representation the Government have issued the impugned order directing appointment of 103 persons who were allegedly working in M/s.Crompton Greaves Ltd., without resorting to any acceptable method of selection and appointment. It is aggrieved by such decision taken by the Government that these writ petitions are filed.
4. Contention of the petitioners are mainly that, the Government was not at an obligation to provide employment to the former workers of M/s. Crompton Greaves Ltd., which was a company functioning in priviate sector. It is contended that the land in question was repossessed long after the company had closed down and after the company had paid compensation to their employees. Most of the employees of the said company WP(C). 5302 /2011 & conn. cases. 6 had left service after receiving all the benefits due on termination of their employment. There was no contract existed between the employees and management of M/s. Crompton Greaves Ltd. or between the said company and the Government to rehabilitate any of the workers. It is further contended that there was no agreement or assurance given by the State Government at the time of repossessing the land, with respect to rehabilitation of any of its erstwhile employees. It is contended that the impugned decision was taken only on the basis of political influence on extraneous considerations and the decision is vitiated by malafides.
5. Further challenge against the impugned decision is based on the 'recruitment policy' adopted by the Corporation, which is produced as Ext.P9 in WP(C).6063/11. It enumerates that, with respect to the sanctioned posts under 'G7' grade of pay onwards, direct recruitment is permitted subject to notification of the vacancies to the Employment Exchange concerned, in terms of the Employment Exchange (Compulsory Notification of Vacancies) Act 1959. With respect to appointment in the grades WP(C). 5302 /2011 & conn. cases. 7 'G1 to G7' direct recruitment is permitted by appointing candidates as trainees for a period of two years and thereafter by absorbing suitable persons against regular vacancies by way of promotion. A Memorandum issued by the Government on 25.1.2007, copy of which is produced as Ext.P10 in WP(C). 6063/2011, indicate that appointment of employees in the Corporation, except to the post of Sweeper-cum-Cleaner, had been assigned to Public Service Commission and the post of Sweeper-cum-Cleaner is being filled up through Employment Exchange. The said Memorandum further clarifies that, since there occurred delay in getting appointment of regular hands through PSC, the Corporation was permitted to make temporary appointment through Employment Exchange for a maximum period of one year. It further clarifies that, apart from the above two method no appointment is being made in the Corporation. Under such circumstances it is contended that the impugned decision granting appointment to 103 persons, in violation of the approved method of recruitment and in violation of the Employment Exchange (Compulsory Notification of Vacancies) Act WP(C). 5302 /2011 & conn. cases. 8 1959, is totally illegal. There are also allegations of malafides raised in some of the writ petitions with respect to the impugned decision.
6. M/s. C.S.Ajith Prakash, M.A. Vaheeda Babu and P.Ramakrishnan had addressed arguments on behalf of the petitioners. Standing counsel appearing for the respondent Corporation as well as Sri.P.Ravindran, learned Senior counsel appearing for the respondent Union, were heard. Sri.C.S.Manilal, Spl. Government Pleader appeared and contested the matter on behalf of the Government.
7. Challenge against the impugned order was resisted mainly on the ground that it is a matter coming within the realm of policy decision of the Government, which cannot be questioned in a writ petition filed under Article 226. It is also contended that, the direction for appointment of 103 persons in the new Tractor manufacturing Unit or in the future arising vacancies at the various units of the Corporation, is on the basis of a policy adopted for rehabilitating workers rendered jobless. It is not issued in violation of recruitment policy adopted by the WP(C). 5302 /2011 & conn. cases. 9 Corporation. It is also contended that the Government being the competent authority in formulating such policy has got absolute power to vary or alter such policy in the matter of appointment. Among other contentions 'locus standi' of the petitioners to challenge such Government decision governing appointment and conditions of service of employees in a public sector undertakings, is also raised.
8. Preliminary objection is regarding 'locus standi' of the petitioners. It is contended that the petitioners have not approached this court as public interest litigants pointing out any irregularity, arbitrariness, unreasonableness or malafides in the action of the Government. But on the other hand, contentions are only to the effect that the appointment if made on the basis of the impugned order will adversely affect the petitioners because chances of their regularisation/appointment in service of the Corporation will be diminished. Admittedly, some of the petitioners are working in the Corporation on provisional/temporary basis. Such engagements will not enable them to claim regularisation or permanent appointment, as a WP(C). 5302 /2011 & conn. cases. 10 matter of right. Since the method of appointment of employees is a matter coming within the decision of the Government and the Corporation, the petitioners as temporary/provisional employees have absolutely no right to question such decision, is the contention. It is also contended that being an issue touching service conditions of the employees in the respondent Corporation, the petitioners cannot challenge the policy decision with respect to appointment, even as public interest litigants.
9. Per contra, counsel appearing for the petitioners contended that any violation from the approved recruitment policy or any appointments made in violation of the statutory provisions regulating such recruitment, are matters which can be challenged by the petitioners, being employees engaged by the Corporation on provisional basis. Being a matter affecting rights and interests of the petitioners, they are entitled to challenge such actions, is the contention. Considering the manner in which the issue is proposed to be approached, this court is of the opinion that there need not be any adjudication on the question as to whether the petitioners are entitled to WP(C). 5302 /2011 & conn. cases. 11 challenge the impugned decision as persons aggrieved or as representatives of the public. Hence this court is proceeding to evaluate the challenges on the sustainability of the impugned order, based on the rival contentions.
10. Learned counsel for the petitioners had placed reliance on various decisions of the Honourable Supreme Court in order to contend that the Government or any Public Sector undertakings are not entitled to make appointment of employees without resorting to well accepted and transparent procedure underlying method of appointments. In the decision in Commissioner of Public Instructions and others vs. K.R.Vishwanath (2005 (7) SCC 206) the Hon'ble Supreme Court had strongly deprecated practice of making appointment on the basis of compassionate grounds. It is held therein that the appointment on compassionate ground is not another source of recruitment, but it is merely an exception to the normal method of recruitment taking into consideration of the fact that death of an employee while in service leaving his family without any means of livelihood will give rise to a sudden crisis. In such cases the WP(C). 5302 /2011 & conn. cases. 12 object is to enable the family to get over the sudden financial crisis. But such appointments have to be made in accordance with the rules, regulations or administrative instructions taking into consideration of the financial conditions of the family of the deceased. In the case of Indian Drugs and Pharmaceuticals Ltd. vs. Workmen, Indian Drugs and Pharmaceuticals Ltd. (2007(1) SCC 408) the Hon'ble Supreme Court observed that the court would be very happy if everybody in the country is given a suitable job. But fact remains that in the present state of our country's economy the number of jobs are limited. Hence everybody cannot be given a job, despite our earnest desire. Jobs cannot be created by judicial orders nor even by legislative or executive decisions. Jobs are created when the economy is rapidly expanding, which means there is rapid industrialisation. Eventhough the economy of the country had progressed a little in some directions, it had benefited only a handful of persons while the plight of the masses had worsened. Giving appointments means adding extra financial burden to the exchequer. Money for paying salary to such appointees does not WP(C). 5302 /2011 & conn. cases. 13 fall from the sky, and it can only be realised by imposing additional taxes on the public. Article 41 provides for the right to work. But this has been deliberately kept by the founding fathers of our constitution in the directive principles and hence made unenforceable in view of Article 37. This is because the founding fathers realised the ground reality in our country. Article 21 of the Constitution cannot be stretched so far as to mean that everyone must have a job. Hence court must take a realistic view in the matter, is the finding.
11. Much reliance was placed on the decision of the Hon'ble Supreme Court in Secretary, State of Karnatake and others vs. Umadevi & others (2006 (4) SCC 1 ). It is held that a sovereign Government, considering the economic situation in the country, has not been precluded from making temporary appointments or from engaging temporary employees on daily wages. But a regular process of recruitment or appointment has to be resorted to, when regular vacancies are to be filled up. Filling up of those vacancies cannot be done in haphazard manner or based on patronage or other considerations. The WP(C). 5302 /2011 & conn. cases. 14 power of a State as an employer is more limited than that of a priviate employer in as much it is subjected to constitutional limitations and cannot be exercised arbitrarily. The power vested under Article 309 to frame rules to lay down conditions of service and recruitment contemplates drawing up of a procedure and Rules to regulate recruitment and service conditions. If Rules have been made under Article 309 of the Constitution, then the Government can make appointments only in accordance with those Rules. The state is meant to be a model employer. The Employment Exchange(Compulsory Notification of Vacancies) Act 1959 was enacted to ensure equal opportunity for employment seekers. Though this Act may not oblige an employer to employ those persons who have been sponsored by Employment Exchanges, it places an obligation on the employer to notify the vacancies that may arise in various departments and for filling up of those vacancies based on a procedure. No Government Order, Notification or Circular can be substituted for statutory Rules framed under the authority of law. This is because, following any other method could be disastrous in as much as it WP(C). 5302 /2011 & conn. cases. 15 will deprive security of tenure and right of equality conferred on civil servants under the constitutional scheme . It may even amount to negating the accepted service jurisprudence. Therefore when statutory rules are framed under Article 309, the only fair means to adopt is to make appointment based on such rules. Referring to Article 16 of the Constitution of India it is emphasized that equality of opportunity in matters of public employment is a fundamental right. With a view to make the procedure for selection fair, the constitution by Article 315 has also created Public Service Commission for the Union and the States. Article 320 deals with functions of Public Service Commission and mandates consultation with the Commission on all matters relating to methods of recruitment to civil services and for civil posts and other related matters. The Constitution does not envisage any employment outside this scheme and without following the method of recruitment set down therein. Referring to various legal precedents it was held that the State has no power to make appointment in contravention of the statutory rules. On the above legal principles settled through WP(C). 5302 /2011 & conn. cases. 16 precedents, contention is raised to the effect that the impugned order of the Government permitting appointment in violation of the settled procedure cannot be sustained.
12. Sri. P. Raveendran, Senior Counsel appearing on behalf of the respondent unions contended that, the impugned order will not in any manner offend the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959. He had drawn attention of this court to Article 320 of the Constitution which provides about functions of the Public Service Commission. Article 321 enables Legislature of any State Government to make law for providing additional functions on the State Public Service Commission with respect to service of any local authority or other body corporate constituted. Provisions of the Kerala Public Service Commission (Additional Functions as respects certain Corporations and Companies) Act, 1970 and the Kerala Public Service Commission (Consultation by Corporations and Companies) Rules, 1971 are also enumerated inorder to contend that, there is no compulsion on the part of the Government or the Corporation to make appointment of its employees only through WP(C). 5302 /2011 & conn. cases. 17 PSC or Employment Exchange. Vehement contentions are raised to the effect that, it is a matter coming within the domain of policy decision of the Government to adopt any different method of appointment. Reliance was placed on various decisions of the Hon'ble Supreme Court inorder to content that courts should restrain from interfering with policy decisions of the State. In Balco Employees' Union V. Union of India and others (2002) 2 SCC 333, it is held by the apex court that, in a democracy, it is the prerogative of each elected Government to follow its own policy. Often the change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegalities is committed in execution of the policy or the same is contrary to law or malafide, a decision bringing about a change cannot per se be interfered with by the court. It is neither within the domain of courts nor the scope of judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether a better public policy can be evolved. Nor the courts can interfere to struck down a WP(C). 5302 /2011 & conn. cases. 18 policy at the behest of the petitioner, merely because it was urged that a different policy would have been fairer, wiser or more scientific or more logical. In a Division Bench decision of this court in Maju Balakrishnan and others V. State of Kerala and others (2009 (2) KHC 492) it was held that, creation and abolition of posts are matters within the realm of policy of the Government. The policy may be wise or foolish, but the court is not concerned with that. Even if a person is appointed to a post on substantive basis, if that post is abolished then the incumbent will be retrenched. So the contention that once the person is appointed to a post substantively he can continue in service till superannuation or he can be terminated only by taking disciplinary action is plainly untenable. Reliance was also placed in Smt. Swaran Lata V. Union of India (1979) 3 SCC 165 to content that, the courts would be justified in refusing to carry on investigation into allegations of malafides, if necessary particulars of the charge making out of a prima facie case are not given in the writ petition. The burden of establishing malafies lies very heavily on the person who alleges.
WP(C). 5302 /2011 & conn. cases. 19
13. Sri. C.S. Manilal, Special Government Pleader
appearing on the behalf of the Government also supported all the contentions raised by the Senior Counsel relying on various decisions in support of the dictum that court cannot interfere with the policy decisions of the State Government. He had also placed reliance on various decisions of the hon'ble apex court as well as this court on the above point.
14. While evaluating sustainability of the impugned orders, it is to be noted that the Corporation is a company fully owned by the State Government. Recruitment policy adopted by the Corporation (Ext.P9 in W.P (c) No.6063/2011) enumerates that direct recruitment is permitted with respect to posts of 'Grade G7' onwards, subject to notification of vacancies to the Employment Exchange in terms of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959. With respect to Grade-G1 to G7 direct recruitment is permitted only by regularisation of the trainees appointed. The Government have conceded in Ext.P10 letter produced in W.P (c) No.6063/2011 that the appointment of employees in the Corporation, except to the post of Sweeper-
WP(C). 5302 /2011 & conn. cases. 20 cum-Cleaner has been assigned to Public Service Commission and the post of Sweeper-cum-Cleaner is to be filled up through Employment Exchange. Therefore it is evident that the recruitment policy accepted and adopted in the case of the Corporation only envisages appointment through the Public Service Commission or through Employment Exchange. In the impugned order the Government had permitted the Corporation to make appointment to the 211 new posts, without resorting to the method of appointment through Public Service Commission. The Government have also directed to appoint 103 persons, who have allegedly lost employment in M/s. Crompton Greaves Ltd. In a further order issued on 12-04-2012 it was clarified that rehabilitation of the said 103 persons can be made by appointing them against vacancies arising in the cadre of Work Assistant/General Worker/Sweeper in the Corporation apart from the new 211 posts sanctioned with respect to the Tractor unit.
15. Question arises as to whether those orders will result in deviation from the accepted recruitment policy, and if it is it can be sustained. Being a Public Sector Undertaking fully owned WP(C). 5302 /2011 & conn. cases. 21 by the Government it cannot be disputed that all the appointments should be made in a transparent manner by resorting to established methods. But question remains as to whether the Government can take a policy decision to deviate from the accepted methods of appointment or to deviate from the declared recruitment policy, for the purpose of rehabilitating any section of workers. But on the facts of the case, as contended by the petitioners, nothing is discernable from the impugned orders as to what exactly was the consideration of the Government in ordering such rehabilitation. According to the petitioners, the Government was not at all at an obligation to order any such rehabilitation with respect to workers of a company fully owned by private sector. There was no agreement or understanding to the effect that the Government will provide any such rehabilitation on re-possession of its own land. Further it is contended that, on closing down of M/s. Crompton Greaves Ltd. all the workers were given compensation and all of them had left the service without any further claims. It is not discernible from the impugned orders as to whether the Government have WP(C). 5302 /2011 & conn. cases. 22 considered any of the above said aspects while issuing directions for appointment of the 103 persons. It is pertinent to note that, by virtue of the impugned order even dependents of persons who are not willing to accept the job was also directed to be considered for appointment. So also, by virtue of the clarification those persons are also directed to be absorbed in other units of the Corporation. Whether the objective behind such direction had any nexus with rehabilitation of the so-called workers is also a question remains to be examined. Whether the Government could follow the same policy in the case of workers of similarly situated other private sector companies which are closed down is also a matter require concern. Since none of the above aspects were considered while issuing the impugned orders this court is constrained to observe that the impugned decisions was taken without any proper application of mind. None of the parameters underlying such decision, such as its sustainability and objective sought to be achieved etc., were not considered by any competent authority at the level of the State Government. Hence this court is of the considered view that the impugned WP(C). 5302 /2011 & conn. cases. 23 orders cannot be sustained. At the same time this court is of the opinion that it is left open to the Government to consider the matter afresh, in case there exists any valid reasons for ordering rehabilitation of any section of workers on the basis of its policy. But decision for absorption of such workers will have to be made without in any manner offending any of the statutory provisions and declared policy of recruitment of the Corporation policy.
16. Under the above mentioned circumstances these writ petitions are allowed. The impugned orders issued by the Government, G.O (MS) No.126/2011/Agriculture, dated 16-05- 2011 and G.O (MS) No.94/2012/Agriculture, dated 12-04-2012 are hereby quashed. It is made clear that the Government will be at liberty to consider the matter afresh and to take appropriate decision taking note of the observations contained herein above.
C.K. ABDUL REHIM JUDGE pmn/AMG WP(C). 5302 /2011 & conn. cases. 24 WP(C). 5302 /2011 & conn. cases. 25 WP(C). 5302 /2011 & conn. cases. 26