IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 11TH MARCH 2011 / 20TH PHALGUNA 1932 WP(C).No. 32445 of 2008(K) --------------------------------------- PETITIONERS: --------------------- 1. AJI.G., AGED 43, W/O.SURESH, SAROVARAM, CHITTOOR, PONNMANA P.O., CHAVARA, KOLLAM. 2. J.JAYAN, AGED 28, S/O.JAYADEVAN, MANIYANKULATHU VADAKKATHIL, PONNMANA P.O., CHAVARA, KOLLAM. 3. MINI, AGED 36, W/O.VIJAYASENAN, VIJAYA BHAVAN, OLAMTHURUTHU, PONNMANA P.O., CHAVARA, KOLLAM. 4. DEEPA.L., AGED 28, W/O.ANILKUMAR, THEMPPATHU, OLAMTHURUTHU,PONNMANA P.O., CHAVARA, KOLLAM. 5. RAJESWARI, AGED 40, W/O.REGHUNATH, KAREETHARAKIZHAKKATHIL, EDATHURUTHU, CHAVARA, KOLLAM. 6. RAJIMOL.R., AGED 26, W/O.ANI, USHUS, CHERUZHERIBHAGOM CHAVARA, KOLLAM. 7. SHEEJA.K., AGED 36, W/O.PRASAD, NANDU BHAVANAM, ELAVANTHI JUNCTION VIVEKANDHA NAGAR, 70, KILIKOLLOR, KOLLAM. 8. SAJILETHA, AGED 28, D/O.KUTTAPPAN, LATHALAYAM, THOTTINUVADAKKU, CHAVARA, KOLLAM. 9. GOPAKUMAR.P.B., AGED 23, S/O.BALASASANKAN, PADMALAYAM, THOTTINUVADAKKU CHAVARA, KOLLAM. 10. CHANSDRALEKHA.P., AGED 38, W/O.SASEENDRAN,, CHALITHARAPUTHAN VEEDU CHITTOOR, PONNMASNA P.O., CHAVARA , KOLLAM. W.P.(C). NO.32445/2008-K: 11. SINDHU, AGED 34, W/O.SUNIL DETHU, VIJAYABHAVANAM, OLAMTHURUTHU, PONNMANA P.O., CHAVARA, KOLLAM. 12. AJITHKUMAR.A., S/O.THANKAMANI, PLAVILAYIL, CHITTOOR, PONNMANA P.O., CHAVARA, KOLLAM. 13. SAJEEVAN, AGED 40, S/O.RAMADAS, PUTHEN VEETTIL VELLANATHURUTHU P.O., KARUNAGAPPALLY, KOLLAM. 14. LEKHA LEKSHMI, W/O.AJAYAGHOSH, PRAPPUKIZHAKKATHIL, CHAVARA BRIDGE P.O., CHAVARA, KOLLAM. 15. DIVYA, AGED 26, W/O.JAYAN, THEMPATHU PUTHENVEEDU, PONNMANA PO., CHAVARA, KOLLAM. BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE, ADVS. SMT.S.HARIPRIYA, SRI.S.SUNIL NARAYANAN. RESPONDENTS: ------------------------ 1. MANAGING DIRECTOR, KERALA MINERALA AND METALS LTD., (KMML),, CHAVARA, KOLLAM. 2. GENERAL MANAGER, M.S.UNIT, KERALA MINERALS AND METALS LTD.(KMML) CHAVARA , KOLLAM. 3. DISTRICT COLLECTOR, KOLLAM. 4. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF INDUSTRIES, GOVT. SECRETARIATE, THIRUVANANTHAPURAM. 5. DISTRICT LABOUR OFFICER, KOLLAM. R1 & R2 BY ADVS. SRI.K.ANAND, S.C, SMT.LATHA KRISHNAN, R3 TO R5 BY GOVT. PLEADER SRI. ANTONY MUKKATH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/03/2011, ALONG WITH W.P.(C). NO.23106/2010 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.32445/2008-K: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE DECISION DT. 31/05/2000. EXT.P.2: COPY OF THE DECISION DT. 03/06/2000. EXT.P.3: COPY OF THE DECISION DT. 13/10/2008. EXT.P.4: COPY OF THE PETITION PENDING BEFORE R.5. EXT.P.5: COPY OF THE APPLICATION FILED UNDER RIGHT TO INFORMATION ACT BEFORE R.1. EXT.P.6: COPY OF THE REPLY TO EXHIBIT.P.5. EXT.P.7: COPY OF THE STATEMENT OF PROFIT TO CONTRACTORS. EXT.P.8: COPY OF THE STATEMENT OF PROFIT OF THE COMPANY DONE THE WORK DIRECTLY. EXT.P.9: REPORT IN MATHRUBHOOMI DAILY ON 13/01/2009 REGARDING THE CONTRACT WORKERS. EXT.P.10: ADVERTISEMENT NO.TP/PD/R-1/10 DTD. 21/06/2010 PUBLISHED IN MATHRUBHOOMI DAILY REGARDING THE CONTRACT WORKERS. EXT.P.11: COPY OF THE LETTER OF THE R.4. NO.14144/H3/2010/ID DTD. 10/08/2010 TO THE ADVOCATE GENERAL. EXT.P.12: COPY OF THE REPRESENTATION FILED BEFORE THE R.4. ON 16/08/2010. EXT.P.13: COPY OF THE REPRESENTATION FILED BEFORE THE R.1. ON 16/08/2010. EXT.P.14: COPY OF THE APPLICATION SUBMITTED BY P.1. DTD. 09/07/2010. EXT.P.15: COPY OF THE APPLICATION SUBMITTED BY P.2. DTD. 09/07/2010. EXT.P.16: COPY OF THE APPLICATION SUBMITTED BY P.3. DTD. 09/07/2010. EXT.P.17: COPY OF THE APPLICATION SUBMITTED BY P.4. DTD 09/07/2010. EXT.P.18: COPY OF THE APPLICATION SUBMITTED BY P.5. DTD. 09/07/2010. EXT.P.19: COPY OF THE APPLICATION SUBMITTED BY P.6. DTD. 09/07/2010. EXT.P.20: COPY OF THE APPLICATION SUBMITTED BY P.7. DTD. 09/07/2010. EXT.P.21: COPY OF THE APPLICATION SUBMITTED BY P.8. DTD. 09/07/2010. W.P.(C). NO.32445/2008-K: EXT.P.22: COPY OF THE APPLICATION SUBMITTED BY P.9 DTD. 09/07/2010. EXT.P.23: COPY OF THE APPLICATION SUBMITTED BY P.10 DTD. 09/07/2010. EXT.P.24: COPY OF THE APPLICATION SUBMITTED BY P.11 DTD. 09/07/2010. EXT.P.25: COPY OF THE APPLICATION SUBMITTED BY P.12. DTD. 09/07/2010. EXT.P.26: COPY OF THE APPLICATION SUBMITTED BY P.13. DTD. 09/07/2010. EXT.P.27: COPY OF THE APPLICATION SUBMITTED BY P.14. DTD. 09/07/2010. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= WP(C).Nos. 32445/2008, 23106, 24619, 27711, 37393/2010 & 2895, 4358, 4647, 5649, 5896, 5908, 6081, 6275, 7526 of 2011. =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 11th day of March, 2011. J U D G M E N T In all these cases, the petitioners are aspirants for the post of Junior Worker in the Kerala Minerals and Metals Limited. Kerala Minerals and Metals Limited (hereinafter referred as the Company) is a wholly owned Government company. For setting up the Fitment Unit of the company, the State Government acquired 242 acres of land under the Land Acquisition Act. Large number of persons were evicted from the acquired land and the persons who were so evicted and the persons whose land were acquired for the Company agitated before the Government and the Company, seeking employment in the company. Ultimately, the Government and the company came to an understanding with them, by which preference was agreed to be given to the evictees and persons whose lands were acquired, for future employment in the company. Subsequently, the Government passed orders granting such preference to the evictees and persons whose lands have been acquired for the establishment of the factory of the company. In subsequent Government Orders issued, the Government added two more categories for such preference in appointment, viz. persons employed through contractors in the factory site of the company and persons who have successfully completed apprenticeship in the company under the Apprenticeship Act. In respect of persons who had worked at contract site of the company, the WP(C).Nos. 32445/2008 -: 2 :- Government issued an erratum to an earlier Government Order to the effect that persons belonging to the surrounding Panchayats who had worked at the contract site of the Company only are entitled for such preference. In 2010 and 2011, the company issued two notifications inviting applications for appointment to the post of Junior Worker. In the same, applications were invited for the post from four categories of persons namely, (i) Persons who were evicted from the building sites of the company; (ii) Persons from whom lands were acquired for the company; (iii) Persons who have worked in the contract sites of the company; and (iv) Former apprentices who have successfully completed Apprenticeship in the company as per the Apprenticeship Act. In that notification, it has been specifically stated that since in the project plant, the candidates are expected to work in night shift also, only men need apply to the post. Petitioners in these writ petitions are aggrieved in different ways in respect of the said notification. But all of them belong to the four categories mentioned above. According to one set of persons, the restriction imposed by the subsequent erratum notification by the Government correcting the words “persons worked at the contract site of the company, persons belonging to surrounding panchayats who had worked at the contract site of the company” is against the original understanding between the WP(C).Nos. 32445/2008 -: 3 :- parties and therefore the preference in respect of that category should be to persons who had worked at the contract site of the company instead of restricting it to persons belonging to surrounding Panchayats who had worked at the contract site of the company. One lady candidate has challenged that notification to the extent of excluding lady candidates from applying. 2. Initially, I entertained a doubt as to whether or not the very preference given to these 4 categories itself would violate the fundamental rights of other similarly qualified persons who do not belong to the 4 categories, who also have equal right to public employment, which the present employment is. In respect of the same, the petitioners advanced arguments on the basis of several earlier decisions of this Court, wherein similar claims on the basis of understanding among the Government, the Company and the persons whose lands were acquired and persons who were evicted from the Company site, have been considered. According to them, in all those judgments, viz. O.P.No. 9673/1999, W.P(C) No. 24752/2010 and W.A. No. 722/2010, such preferential right has been interfered with by this Court and therefore it cannot now be held that the said preference is violative of the fundamental rights of the other persons not coming within the said categories, who are also eligible to be considered for appointment. The learned Government Pleader would argue that giving of preference to a particular section of people is a policy decision of the Government, which cannot be interfered with by this Court in view of various decisions of the Supreme Court, viz. Madhya Pradesh Public Service Commission v. Navnit Kumar Potdar WP(C).Nos. 32445/2008 -: 4 :- and another, 1994(6) SCC 293, Delhi Development Authority and others v. Ambitious Enterprises and another, 1997(6) SCC 420 and State of Punjab and others v. Ram Lubha Bagga and others, 1998(4) SCC 117. 3. I have considered the rival contentions in detail 4. On a larger perspective, I am of opinion that when appointment to public employment is confined to a particular section of the people, on the basis of their land having been acquired, they having been evicted, they having been worked in the contract site of the Company and they having undergone apprenticeship in the Company, would violate the fundamental rights of the candidates at large who are also eligible to compete for the post. Kerala is a State which carries the burden of unusually large number of which unemployed skilled and unskilled youth, whose tribe is increasing day by day. Therefore, if in public employment, they are excluded in favour of the 4 specified categories of candidates mentioned above, it would prima facie be violative of the fundamental rights of those unemployed persons at large under Articles 14 and 16 of the Constitution of India. In fact, persons whose lands have been acquired were paid compensation for the land and there is no legal provision which enables the Government and the Company to reserve such employment to them or any of the other three categories mentioned in the notification. But, in view of the fact that in several other judgments, this Court had considered the preference given to such persons at least in the category of evictees and persons whose lands have been acquired and did not disapprove of the same, especially since none has approached this Court challenging the WP(C).Nos. 32445/2008 -: 5 :- notifications on that ground, I am not now inclined to declare that such preferences would be unconstitutional. 5. But, that does not ipso facto mean that appointment can be exclusively restricted to those 4 categories of candidates to the total exclusion of others, who are also eligible to compete for the said post. In fact, in all the decisions relied on by the petitioners themselves, that is exactly what this Court has held. This Court has categorically held that such preference can be given only when all other conditions are equal. That has been made abundantly clear by a Division Bench of this Court in W.A.No. 1722/2010. In that judgment, the Division Bench has held thus: “Aggrieved by judgment dated 06.08.10 in W.P.(C) No.24752 of 2010, the unsuccessful petitioners preferred the appeal. 2. Large extents of property in Kollam District were acquired by the 1st respondent State for the benefit of the 3rd respondent herein for the establishment of a certain project (the further details of the project may not be necessary for the present purpose). The 1st respondent issued an order, G.O(Rt) No.11/88/ID dated 01.01.1988 stating that some preference would be given to the various categories of persons specified in the said Government Order in the matter of selection to the post of workers of the 3rd respondent Corporation. The relevant portion of the order reads as follows: “In the selection to the posts of Workers in the Kerala Minerals & Metals Ltd. preference is given, other things being equal, to the eligible candidates belonging to the following categories: (i) Persons evicted from the project site. (ii) Persons whose land has been acquired for project site. (iii) Persons belonging to the surrounding WP(C).Nos. 32445/2008 -: 6 :- Panchayats to the project who have been working at the project site.” It can be seen from the above that there are three categories of persons who are specified to belong to the preferred categories. 3. The instant writ petition is filed aggrieved by proceedings dated 21.06.2010 of the 3rd respondent Corporation. The relevant portion reads as follows: “As per the Government Order, it has been decided by the Company to recruit to the post of Junior Worker in the unskilled category of the T.P. unit of the company from the preferential category herein below mentioned. 1. People who were evacuated for the sites of KMML. 2. The owners of the properties taken for the purpose of KMML. 3. Those who have worked at the contract site of KMML. 4. The Apprentices who have successfully completed the apprenticeship period in the company as per the Apprenticeship Act. It has been decided to fill the 110 existing vacancies and 57 vacancies expected to arise by December 2011.” 4. The grievance of the petitioners is with reference to the categories 3 and 4 mentioned above. According to the petitioners, by including the abovementioned two categories the Company acted in a manner inconsistent with the requirements of the stipulation made in the Government Order dated 01.01.1988 referred to above. More specifically the case of the petitioners is that the 3rd category mentioned in that Government Order i.e., persons belonging to the Panchayats surrounding the project who have been working at the project site would be prejudicially affected by the decision of the 3rd respondent. 5. The petitioners assert at paragraph 7 of the writ petition as follows: “It is submitted that petitioners 1 and 2 belong to Panmana Panchayat and the third petitioner belong to WP(C).Nos. 32445/2008 -: 7 :- Chavara Panchayat. Both the said Panchayats are considered as surrounding Panchayats for the purpose of providing preferential employment. Petitioners are working in the project site under the various contractor engaged by the Company. Among them, petitioners 1 and 2 have more than 100 days attendance, whereas the third petitioner does not have 100 days attendance. Third petitioner, however, has one year experience in working under the contractor in project site of the Company.” 6. The substance is that the petitioners have been working in the project site under various contractors engaged by the Company. The assertion, may be true or not, a matter that is to be decided upon evidence. The writ petition has been dismissed at the admission stage without any counter by the 3rd respondent Corporation. Assuming for the sake of argument that the petitioners did in fact work under the Contractors, the impugned proceedings, in our view, do not prejudicially in any way affect the priority created under Clause (iii) of the abovementioned Government Order. In Clauses 3 and 4 of the impugned proceedings it is stated that preference would be given to those who have worked at the Contract site or apprentices of the Company falling within the definition of the Apprenticeship Act who have successfully completed the Apprenticeship. The abovementioned Government Order does not create any unrestricted right in favour of the inhabitants of the surrounding Panchayats. It only creates a preferential treatment, (other things being equal) in favour of persons belonging to the surrounding Panchayat to the Project, who had been working at the project site. Apprentices of the Company or persons who are working at the site would certainly be persons, in our opinion, falling within the third category of the said Government Order. In the circumstances we do not see any substance in the appeal. The appeal is dismissed at the admission stage. (Underlining is mine) According to to me, the said judgment answers all the issues arising in these writ petitions, sufficiently. As is clear from that judgment, the Government orders issued on the subject only creates a preference, other things being equal, in favour of persons belonging to the 4 categories of persons. That pre- WP(C).Nos. 32445/2008 -: 8 :- supposes first inviting of applications from all eligible persons in the country and then making an assessment of all of them giving them marks for various ingredients of qualifications and merit. Only when the persons mentioned in the 4 categories compared to others are equal in merit, preference can be given to the said 4 categories of persons. But that is not what is contemplated by the notification inviting applications, which are the subject matter of these writ petitions. In those notifications, the Company has invited applications restricting applications only to the 4 categories of persons mentioned therein totally excluding all others. That amounts to 100% reservation of the vacancies available to the said 4 categories of persons to the total exclusion of all other eligible candidates, which is not what is contemplated by the Government Order in question and the decision of the Division Bench explaining the Government Order. Therefore, the notifications involved in these writ petitions are unconstitutional for that reason. 6. In this context, I must also deal with a contention of the learned Government Pleader that the restriction in the application to the 4th categories only means shortlisting of the candidates in the sense that since even the candidates available in the 4 categories are large enough and therefore if others are also allowed to participate in the selection process, there would be a large number of candidates, to obviate which only the selection has been restricted to the 4 categories of persons. To me, it appears that the same amounts to putting the cart before the horse. First of all, what is available to the 4 categories is only a preference in appointment when all other WP(C).Nos. 32445/2008 -: 9 :- things are equal. Apart from that, the question of shortlisting arises only when the number of applicants are known. The same can be decided only after the applications from all sources are received. It is not as if the Company already knows how many qualified candidates are eligible to be considered in the four categories. That will be known only when applications are received. Even otherwise, such a short listing will exclude all other eligible candidates who are also equally eligible and entitled to be considered for selection to the post, which will violate their fundamental rights under Articles 14 and 16 of the Constitution of India, which cannot be countenanced by this Court, by any standards. What has been done in these notifications is totally excluding persons other than the 4 categories even for applying for the post. That cannot be considered as shortlisting at all. Shortlisting shall be on the basis of criteria applicable to all eligible persons before applying the preference contemplated by the Government Order. Therefore, I do not find any merit in that contention of the learned Government Pleader. 7. I do not find any merit in the challenge against the erratum notification issued by the Government in respect of the third category. That preference is a concession given by the Government. That concession can only be in accordance with the conditions prescribed by the Government. It is perfectly open to the Government to change the conditions for grant of such concession at any time and insofar as it is not arbitrary, the same cannot be challenged on the ground that the Government order as it stood prior to the erratum notification conferred on a right to any persons in their WP(C).Nos. 32445/2008 -: 10 :- favour. In any event, that issue is also covered by the Division Bench decision quoted above. 8. Now coming back to the notifications issued. I have already held that those notifications are unconstitutional since the same totally exclude the similarly placed other persons from applying for the post, reserving the post exclusively for the 4 categories of persons. Since such exclusion is totally unconstitutional and violative of the fundamental rights of those other persons at large who are also eligible to compete for the post, those notifications are liable to be quashed. I do so. 9. The Company is directed to issue a fresh notification inviting applications from all eligible persons and after receipt of applications, make selection from them by awarding marks for various components of their qualifications, experience etc., and drawing up a rank list in which if persons belonging to the 4 categories secure same marks as that of others, to give preference to the 4 categories of persons as laid down in the Division Bench decision quoted above. 10. As far as the claim of the women candidates for inclusion, although I am of the personal opinion that in this era of women empowerment, it is not proper on the part of Government entities from excluding women from competing for employment involving work in night shifts on the ground that since the selected persons have to work in night shifts also, they are to be excluded. But Section 66 of the Factories Act comes in the way of the women candidates. The question of validity of Section 66 of the Factories Act has been upheld by a Division Bench of this Court in Leela v. State of Kerala, WP(C).Nos. 32445/2008 -: 11 :- 2004 (2) KLT 220. I am bound by that decision. Therefore, in view of that decision, I cannot hold that the exclusion of women candidates for consideration for the particular post cannot be held to be arbitrary. Therefore, the said writ petitions viz, W.P(C) No. 32445/2008 and 5908/2011 to that extent are dismissed. 11. In W.P(C) No. 7526/2011, a scheduled caste candidate has come up with the grievance that the petitioner's application is rejected without considering his claim for reservation. The learned standing counsel for the Company assures the Court that in this selection also, the principles of reservation as applicable would be strictly followed. In view of the same, in that respect, no further orders are necessary in W.P(C) No. 7526/2011. The writ petitions are disposed of as above. All the interim applications are dismissed. Sd/- S. Siri Jagan, Judge. Tds/