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

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

the NTPC had prepared  a  plan  for

the recruitment of labour in such plant, with preference  to  be  given,  in

various classes of such labour, to persons whose  lands  had  been  acquired

for the construction of the said  plant  (Land  Oustees).   Thereafter,  the

NTPC ran into  industrial  relations  problems  as  the  said  Land  Oustees

demanded a larger share of preference  in  the  employment  in  the  various

classes  of  posts.   Accordingly,  the  NTPC  made   adjustments   to   the

recruitment procedure on 28.05.1986.   Subsequently,  it  ran  into  further

labour problems such as Bandhs, Gheraos, etc. by the said Land Oustees.   On

this account, the appellant was suffering huge loss on a daily basis.  As  a

result, the NTPC resolved to exclusively employ  Land  Oustees  in  all  the

specific labour classes.  This decision was communicated to  the  Government

of India vide letter dated 20.07.1998.  Thereafter, there was  the  creation

of new vacancies due to expansion of  the  said  Plant.   The  NTPC  took  a

decision to allot these newly created posts entirely to the  class  of  Land

Oustees.  This decision was communicated  to  the  Parliamentary  Committee,

and  as  per  the  same,  the  local  Employment  Exchanges  were  notified.

Further, the NTPC sent requests to all the  concerned  District  Magistrates

to publish information about the said vacancies.  On these basis,  the  NTPC

received applications, conducted  interview  procedures  and  appointed  the

successful candidates to the vacant posts, being all Land Oustees.=

The position which emerges from the aforesaid narration of  events  is

this:

The  persons  who  were  selected  were  admittedly  eligible  to  be

considered as they were also Land Oustees.

No doubt,  the  posts  were  not

advertised by publication in the newspapers.

Facts remains  that  only  two

persons namely respondent Nos.1 and 2  made  a  grievance  in  this  behalf.

These two persons have also been considered for the posts under  the  orders

of this Court.  However, they have failed  in  the  selection.

Others  who

were selected have already joined the posts.

In  a  matter  like  this,  no

useful purpose would be served in carrying out the directions  of  the  High

Court to have fresh selection process after issuing  advertisements  in  the

newspapers.

18.   We may record at this stage that about  70  other  persons  have  also

filed I.A.’s supporting the stand of respondent Nos.1 and  2.

However,  it

is of significance to mention that all these persons had  duly  participated

in the selection process but could not make their mark  and  failed  to  get

selected.  

Therefore, these persons have no right  to  raise  any  grievance

about non-publication of the advertisement in the newspapers.

19.   Having regard to  these  peculiar  facts  and  aforesaid  developments

during the pendency of these appeals,

we find that there is no necessity  to

carry out any fresh selection process as directed by the High Court  in  the

impugned judgment.  The appeals are allowed and the direction is set aside.

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

Leave granted.

20.   This appeal is filed by five persons  who  also  participated  in  the

selection process and were selected.

21.   Pursuant to the orders dated 09.05.2013 directing NTPC to appoint  the

selected candidates, two out of the aforesaid  five  appellants  have  given

the appointment.

However, cases of other three appellants are  rejected  as

in the medical examination conducted, they  are  found  medically  unfit  as

suffering from ‘colour blindness’.

They are  appellants  Nos.1,  4  and  5.

Learned counsel appearing for these appellants submitted that their  medical

examination was done in haste; they had  made  representation  to  the  NTPC

regarding constitution of Medical Board to re-examine their cases  to  which

NTPC was not agreeing; they had got themselves medically examined  from  the

same hospital and same doctor namely  NTPC,  Kahalagaon  Hospital  and  also

outside doctor and they had duly certified that these  appellants  were  not

suffered from ‘colour blindness’.

Additional  affidavit  dated  26th  June,

2005 is filed including the result of their medical  examination  from  Out-

Patient Department of NTPC, Kahalagaon Hospital, as well as opinion of  some

private Doctors in support of the aforesaid submission.

22.   Having regard to the aforesaid facts, we are of the  opinion  that  it

would be in the interest of justice that NTPC  constitutes  another  Medical

Board for re-examination of these three appellants and decide their fate  on

the basis of the opinion given and take  further  action  on  the  basis  of

opinion given by the reconstitute Medical Board.

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

2014 – Sept.- Month – http://judis.nic.in/supremecourt/filename=41886

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

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

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

W I T H

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

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

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

CIVIL APPEAL NO. 8492 OF 2014
(arising out of SLP (C) No. 33784 of 2013)
J U D G M E N T

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

Leave granted.

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

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

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

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

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

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

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

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

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

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

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

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

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

Heard Learned counsel for the Petitioners.

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

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

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

Rejoinder be filed within four weeks.

List in the month of August, 2013 on a non-miscellaneous day.”
14. At this stage, two of the selected candidates, who had not filed
separate SLP filed impleadment applications in SLP (C) No.33518-33519 of
2011 which was allowed on 19.08.2013. In respect of these two persons
also, order was passed on 22.11.2013, directing NTPC to appoint them as
well as they were at par with others who had been selected and in whose
case order dated 09.05.2013 were already passed. Order dated 22.11.2013
read as under:
“Heard Mr. S.B. Mahayana, learned senior counsel in support of these
I.As.. He points out that two persons whom he is representing, namely,
Bhaskar Bhushan and Dhirendra Kumar Singh have been issued appointment
orders. This is on the footing that their land has been taken over by
NTPC. Mr. Sunil Kumar, learned senior counsel appearing for NTPC does not
dispute it. We have also heard Mr. Prem Shankar Sharma, learned counsel
appearing for respondent Nos. 1 & 2 in the above special leave petitions
and also appearing in support of other intervenors in the main SLP. In our
view, as observed by this Court in order dated 09.05.2013, these
appointments will be subject to the final outcome of the special leave
petitions. These I.As. Are accordingly disposed of. NTPC will act
accordingly.”
15. The reading of the aforesaid two orders reflects that on the one
hand, all those who were selected in the selection process undertaken by
the NTPC were appointed. On the other hand, in respect of respondents
Nos.1 and 2 herein who could not apply for the post, direction was given to
the NTPC to consider their eligibility and inform the outcome thereof to
the Court.

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

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

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

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

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

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

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

23. This appeal is disposed of on the aforesaid terms.
…………………………………..J.
(J. Chelameswar)
…………………………………..J.
(A.K. Sikri)
New Delhi;
September 05, 2014.

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