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