Central Administrative Tribunal - Cuttack
B Mishra vs National Aluminium Company Limited, ... on 19 October, 2022
1 OA 779 of 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
No. OA 779 of 2017
Present: Hon'ble Mr. Swarup Kumar Mishra, Judicial Member
Bibhudutta Mishra, aged about 27 years, S/o Bhabani
Prasad Mishra, At- Hanuman Bazar, PO/PS/Dist-Angul.
......Applicant
VERSUS
1. Chairman-cum-MD NALCO, At-NALCO Bhawan,
Bhubaneswar, Dist-Khurda.
2. Executive Director (S&P), NALCO, At-NALCO Nagar,
Dist - Angul.
3. Sr. Manager HRD (S&P), NALCO, At-NALCO Nagar, Dist
- Angul.
4. Collector, Angul, At/PO/Dist- Angul.
......Respondents.
For the applicant : Mr. S.B.Mohanty, counsel
For the respondents : Mr. C.Mohanty, counsel
Mr. J.Pal, counsel
Heard & reserved on : 13.10.2022 Order on : 19.10.2022
O R D E R
Mr. Swarup Kumar Mishra, J.M. The applicant has filed the present OA under Section 19 of the 2 OA 779 of 2017 Administrative Tribunals' Act, 1985 inter alia seeking the following reliefs :
i) The Original Application may kindly be admitted and issue notice to the Respondents.
ii) This Hon'ble Tribunal be pleased to direct respondent to give employment under the R&R Scheme as the applicant belongs to SAP category in consonance with the rules.
iii) And further be pleased to direct Respondent to extend the benefit of recruitment commensurate to his qualification.
iv) And this Hon'ble Tribunal be pleased to pass any other order/order(s) directions as would be deem fit and proper.
2. The facts of the matter in nutshell are that the applicant, Sri Bibhudutta Mishra, S/o Bhawani Prasad Mishra of Hanuman Bazar, Angul town is the nominee of SAP No.22 of Village Kansaragadi stood recorded in the name of grandfather of the applicant, namely Trilochan Mishra, S/o Sudarshan Mishra, against acquisition of land to the extent of Ac. 4.79 in village Kansaragadi by NALCO, Angul. The admissible land compensation has been paid to the land oustees. In terms of the provision of Rehabilitation and Resettlement Policy 1984 formulated by NALCO rehabilitation is being provided to the substantially affected person/land displaced person (in short SAP and LDP) according to their qualification by providing permanent job, contractual job in Executive Agencies, petty contract jobs, shops in the township area etc. In letter 3 OA 779 of 2017 dated 21.5.2011 (Annexure A/1), applicant was enlisted for sponsoring two years ITI training conducted by the NALCO. The applicant requested NALCO that he is continuing B.Tech (Mech.) and the course would be completed in June, 2021 and, accordingly, requested to process his case for suitable training after possessing B.Tech qualification. Since the applicant did not take ITI training as pre-condition, his case was dropped for rehabilitation assistance. Thereafter, applicant has sought appointment as a land oustee in the NALCO commensurate with his qualification and the same having been refused, he had filed Misc. Case No. 4/2015 before the Collector, Angul seeking direction to the NALCO authority to provide him employment. The said Misc. Case was disposed of by the Collector, Angul on 11.11.2016 (Annexure A/5) holding that the authority concerned has no jurisdiction to decide the matter and, therefore, the applicant may take shelter before the competent court of law. Thereafter, the applicant filed the instant O.A. seeking the aforesaid reliefs.
3. Respondent No. 4, i.e. Collector, Angul, filed counter narrating the facts stated above and justifying as to how he had no jurisdiction to decide the issue raised in the Misc. Case No. 4/2015.
4 OA 779 of 2017
4. Respondent Nos. 1 to 3 filed separate counter stating inter alia that the applicant has filed this O.A. after a lapse of more than 33 years and, thus, this O.A. is liable to be dismissed on the ground of delay and laches. Insofar as merit is concerned, it has been submitted that as per para 2.2 of the policy only one type of assistance can be provided to a nominee of the land displaced person. In paragraph 2.3 of the said policy, it has been provided that for upgrading the skill of the land displaced person, special training may be introduced by the company and that, the assistance will be confined to the unit concerned and not the other unit of the NALCO. Para 2.4 provides that preferential assistance to each land displaced person will cease beyond a period of one year from the date of the commission of its unit. It has been stated that Smelter Plant and CPP Plant at Angul have been commissioned in March, 1986 and September, 1987 respectively, therefore, preferential assistance ceased way back. To justify the stand that the applicant is not entitled to the relief, the respondents have placed reliance on the decision of the Hon'ble High Court of Orissa in OJC No. 4150/90, 1899, 4092, 4092, 4094 of 1991, 157 & 874 of 1992 (Sri Pratap Behera Vs. NALCO Ltd & Ors). In support of the stand that the present application is liable to be dismissed on delay 5 OA 779 of 2017 and laches, respondents have placed reliance on the decisions of the Hon'ble Apex Court in the cases of S.S.Rathore Vs. State of M.P. & Ors. (1989) 4 SCC 582 and D.C.S.Negi Vs. UOI & Ors., Special Leave (Civil) CC No. 3709/2011. According to respondents, the scheme being not an ongoing one and the applicant having refused to undergo ITI training as per the Scheme, he cannot claim at such at a belated stage the appointment commensurate with his qualification at his sweet wish and will. Accordingly, respondents have prayed for dismissal of this O.A.
5. Ld. Counsel for the applicant has submitted that since the name of the applicant was recorded as a nominee of SAP No. 22 for the land acquired by the NALCO for the project, the applicant has got a right for appointment. The applicant has not refused to take the ITI training rather he had intimated that he would take the training after completion of his B.Tech degree. Therefore, lapse of time cannot stand on his to exercise his right for appointment accrued in his favour by virtue of the policy decision of the government, especially, on the face of the averment given to similarly situated nominees of the land oustees. Insofar as limitation is concerned, it has been submitted that the applicant has been enlisted by the NALCO for ITI training. Since, he was continuing B.Tech 6 OA 779 of 2017 course at KIIT, he could not join in the ITI training, for which, he should not have been deprived of his legitimate claim flowing out of the policy decision of the Government. It has been submitted that according to the policy under Annexure-D filed by the respondent No.4, a person having engineering degree can be absorbed in S.O. level subject to acceptance by the SAPs, thus, the applicant can be accommodated against the post of SO in NALCO. The applicant cannot be said to be indolent because he approached the Collector and D.M., Angul by filing Misc. Case in 2015, which was disposed of on 11.11.2016 and, thereafter, the applicant has filed the present O.A. Thus, delay and latches, should not stand for dispensation of justice, especially when, the applicant is eligible and entitled to be appointed as per the policy.
On the other hand, Ld. Counsel for the respondents besides highlighting the decision of the Hon'ble High Court of Orissa and Hon'ble Apex Court referred to above, has submitted that the policy is not an ongoing policy and as per the conditions stipulated therein the same is ceased to exist. There is no vacancy in the higher cadre where the applicant can be appointed with his educational qualification. Further, it has been submitted that rehabilitation does not mean to afford someone 7 OA 779 of 2017 as an officer/managerial post without vacancy/notification/ advertisement under a land oustee category. The actual purpose of rehabilitation is to settle poor sufferer for his livelihood and, as a matter of fact, the mother of the petitioner was holding the post of DGM (Medical Service) in NALCO and receiving Rs. 2,33,000/- (Appx.) as salary and after her superannuation she had received more than rupees one crore from NALCO as retirement benefits. That apart, it has been submitted that since one family member is employed in NALCO, it is not obligatory on the part of the NALCO to extend the benefit again under the Scheme to another person. Accordingly, Ld. Counsel for the respondents has prayed for dismissal of the O.A. both on the ground of delay and latches as well as on merit.
6. After giving indepth consideration to the arguments advanced by the respective parties, perused the documents placed on record.
7. The facts narrated above are not in dispute. It is seen that in clause 2.3 of the Policy formulated in 1984, it has been provided that special training is a precondition for appointment as a land oustee and in clause 2.4 it has specifically provided that preferential assistance to the land displaced persons/substantially affected person will cease beyond the 8 OA 779 of 2017 period of one year from the date of commissioning of the units and, in the instant case, it is not in dispute that commissioning of units came to end in March, 1986 and September, 1987. Admittedly, the applicant was intimated to produce certain attested copies of the documents for arranging ITI training as a land oustee in letter dated 21.05.2011 and the applicant stated to have submitted the letter under Annexure-A/2 dated NIL stating therein that he would complete his B.Tech course in May- June, 2012 and his SAP status may be maintained till then and filed Misc. Case in 2015, i.e. after near about three years, which was disposed of on 11.11.2016 and, in October, 2017 he has filed this O.A. This shows that the applicant has taken the matter at his pleasure to enforce his right for appointment when preferential assistance to the land displaced persons/substantially affected person had ceased beyond the period of one year from the date of commissioning of the units as per provision 2.4 of the policy. Further, the relevant portion of the decision of the Hon'ble High Court of Orissa in the case of Pratap Behera (supra), as quoted by the respondents, reads as under:
"Acceptance of the request by the State Government to consider the case of certain category of persons for employment on priority basis can by no reasonable standard be said to vest such a right in the petitioners. All that they can claim is a fair and proper consideration of their 9 OA 779 of 2017 applications for employment along with those submitted by other applicants and on being found suitable, appointment order will be issued in their favour on priority basis. To hold otherwise will be accepting a position that the petitioners are to be given employment ignoring the cases of more meritorious candidates on the grounds that they are either family members of or nominees of persons whose land was acquired for the Company. This will tantamount to ignoring merit and efficiency in employment of the public sector undertaking. Such a practice will not only be unfair, improper but also discriminatory and against public interest. It has to be taken as an accepted factual position that over-manning is one of the primary reasons for malfunctioning of public sector undertakings many of which are running on loss. The Government of India, as stated in the counter affidavits filed by the Opp. Parties, has taken note of this situation and has prohibited over manning in public sector undertakings Courts have from time to time laid stress that in matters of public employment merit should be the primary consideration. It has also to be borne in mind that employment on preferential consideration under a rehabilitation scheme is an exceptional measure in as much as it is not selection from open field. If such a measure is stretched to the extent that notwithstanding merit of the candidate employment is to be provided because he directly or indirectly comes under the rehabilitation scheme it will be against the principle of equal opportunity enshrined under Articles 14 and 16 of the Constitution."
8. Since, delay has already been condoned by this Tribunal vide its order dated 08.01.2018, without going to the said aspect of the matter, it is held that since the applicant did not avail the opportunity granted to him by the NALCO in letter dated 21.05.2011 and, in view of the specific provision at para 2.4 of the policy of 1984, the applicant cannot claim for 10 OA 779 of 2017 such appointment as a matter of right at this stage. The decision of the Hon'ble High Court of Orissa in the case of Govinda Chandra Naik Vs. Collector, Angul & Ors. in W.P(C) No. 19622/2010 relied on by the applicant in his written notes of submission is quite different and distinct to the facts and circumstances of this case as in the said case the applicant had successfully undergone the necessary training and was also interviewed.
9. Therefore, keeping in view the facts discussed above and the decision of the Hon'ble High Court in the case of Pratap Behera (supra), there is no iota of doubt that the present case deserves to be dismissed. Accordingly, the O.A. is dismissed. No costs.
(SWARUP KUMAR MISHRA) MEMBER (J) RK/PS