IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3876 of 2010 1. NAKUL DAS S/O CHHATHU HARIJAN @ CHHATHU DAS R/O VILL.- BHOLSAR, P.O. & P.S.- KAHALGAON, DISTT.- BHAGALPUR 2. MD. SAIFUL ISLAM S/O LATE MD. ABUL HUSSAIN R/O VILL.- CHANDPUR, P.O. & P.S.- RASAHALPUR, DISTT.- BHAGALPUR Versus 1. THE UNION OF INDIA THROUGH ITS SECRETARY MINISTRY OF HUMAN RESOURCES DEPARTMENT, GOVT. OF INDIA, NEW DELHI 2. THE N.T.P.C. KAHALGAON THROUGH ITS GENERAL MANAGER KAHALGAON, BHAGALPUR 3. THE GENERAL MANAGER N.T.P.C. KAHALGAON, BHAGALPUR 4. SHRI G.C. SARKAR, SENIOR OFFICER HUMAN RESOURCE DEPARTMENT, N.T.P.C., KAHALGAON, BHAGALPUR With CWJC No.12471 of 2010 1. ALOK KUMAR RANJAN S/O MURLI MANOHAR SINGH R/O VILL.- LAXMIPUR BABHANIYAN, P.S.- KAHALGAON, DISTT.- BHAGALPUR 2. SANTOSH KUMAR YADAV S/O UMESH PRASAD YADAV R/O VILL.- MADARGANJ, P.S. AMDANDA, DISTT.- BHAGALPUR Versus 1. THE UNION OF INDIA THROUGH ITS SECRETARY, HUMAN RESOURCE DEPARTMENT, GOVT. OF INDIA, NEW DELHI 2. THE NTPC, KAHALGAON THROUGH ITS GENERAL MANAGER, KAHALGAON, BHAGALPUR 3. THE GENERAL MANAGER, N.T.P.C., KAHALGAON, BHAGALPUR 4. SHRI G.C. SARKAR, SENIOR OFFICER, HUMAN RESOURCE DEPARTMENT, N.T.P.C. KAHALGAON, BHAGALPUR 5. THE DISTRICT MAGISTRATE CUM INSPECTOR OF FACTORIES, BHAGALPUR With CWJC No.12824 of 2010 1. BHASKAR BHUSHAN S/O DEO NARAYAN MANDAL VILL.- SARAKPUR, P.O.- KALIGANJ, P.S.- KAHALGAON, DISTT.- BHAGALPUR 2. DHIRENDRA KUMAR SINGH S/O RANJEET PRASAD SINGH VILL.- BRAHAMCHARI, P.O. LAGMA HAT, P.S.- KAHALGAON, DISTT.- BHAGALPUR Versus 1. THE UNION OF INDIA THROUGH ITS SECRETARY MINISTRY OF HUMAN RESOURCES DEPARTMENT, GOVT. OF INDIA, NEW DELHI 2. THE N.T.P.C. KAHALGAON THROUGH ITS GENERAL MANAGER, KAHALGAON, BHAGALPUR 3. THE GENERAL MANAGER N.T.P.C. KAHALGAON, BHAGALPUR 4. SRI G.C. SARKAR, SENIOR OFFICER HUMAN RESOURCES DEPARTMENT, N.T.P.C. KAHALGAON, BHAGALPUR 2 5. THE DISTRICT MAGISTRATE-CUM-INSPECTOR OF FACTORIES, BHAGALPUR In C.W.J.C. No.3876 of 2010 For the petitioners : M/s S.M. Shabbir Alam, Sanjay Sinha, Manohar Pd, Singh, advocates For the Union : Mr. Sanjay Kr. Pandey, advocate. For the State : M/s. Sunil Kumar Mandal, SC-15. For the NTPC : M/s Chitranjan Sinha, Sr.Adv., Anil Kr. Sinha, advocate. For the private respondent : M/s. Rajendra Pd. Singh, Sr.Adv., Y.V.Giri, Sr.Adv. For the intervener respondent : Mr. Bharat Lal, advocate. For the intervener respondent supporting the petition : Mr. Krishna Mohan, advocate. In C.W.J.C. No.12471 of 2010 For the petitioners : M/s. Rama Kant Sharma, Sr.Adv., Deepak Kr. Singh, For the Union of India : Mr. Snajay Kr. Pandey, advocate. For the State : Mr. Shashi Shekhar, AC to SC-20, advocate. For the NTPC : M/s Chitranjan Sinha, Sr.Adv., Anil Kr. Sinha, advocate. In C.W.J.C. No.12824 of 2010 For the petitioners : Mr. R.P.Singh, Sr.Adv. For the NTPC : M/s Chitranjan Sinha, Sr.Adv., Anil Kr. Sinha, advocate. ----------- 16. 08.09.2010 Petitioners in C.W.J.C.No.3876 of 2010 are the sons of the land oustees, whose lands were acquired by the State for the National Thermal Power Corporation Limited, a Government of India Enterprise(hereinafter referred to as the NTPC) so as to enable the NTPC to establish Kahalgaon Thermal Power Project, Bhagalpur, which is evident from the land oustee certificate issued by the Special Land Acquisition Officer, Bhagalpur annexed with the writ petition. They have filed this writ petition 3 questioning the appointment made on the 99 post of Artisan Trainee i.e 69 post of ITI Fitter, 30 post of ITI Electrician and 02 post of Lab Assistant Trainee on the ground that appointments were made without publishing any advertisement in the newspaper for such appointment by calling for the names of the land oustees from the three employment exchange i.e. Bhagalpur, Lalmatia and Godda under requisition dated 17.2.2009, Annexure-R-2 series without forwarding to the employment exchange a list of nominees of land oustees and obtaining a certificate from the employment exchange that it had received the list of nominees of land oustees, as is provided in the employment policy dated 28.5.1986, Annexure-R-10 and according to the petitioner on account of failure to publish the employment notice in the newspaper as also to forward the names of the land oustees to the employment exchange the selection process is violative of the employment policy dated 28.5.1986 and Articles-14 and 16 of the Constitution of India. 2. The authorities of the NTPC refuted the submission made in the writ application by filing counter affidavit on behalf of respondent nos.2 to 4. With reference to letter dated 17.2.2009 of the Senior 4 Officer(Human Resource), NTPC Limited, Annexure- R-2 series addressed to the Employment Officer, Employment Exchange, Bhagalpur, Lalmatia, Godda, Jharkhand it is submitted that before making appointment against 69, 30, 02 post of Artisan Trainee, ITI Fitter, Electrician and Lab Assistant Trainee the Senior Officer(HR), NTPC forwarded notification Nos.261, 262 and 263 issued under the employment Exchanges(Compulsory Notification of Vacancies) Act, 1959 to the Employment Officers of Bhagalpur, Lalmatia and Godda requesting them to sponsor the names of suitable land oustee(s) for appointment on the post of Artisan Trainee, ITI Fitter, Electrician and Lab Assistant Trainee, copy of letter dated 17.2.2009 was also sent to the District Magistrate, Bhagalpur, the Deputy Commissioner, Godda for information and wide publicity amongst all the village Mukhiyas as also for display on the office notice board. In response to the request made under letter dated 17.2.2009 name of suitable land oustees for appointment on the post of Artisan Trainee, ITI Fitter, Electrician Lab Assistant Trainee was received from the three employment exchange of Bhagalpur, Lalmatia and Godda and those whose name was forwarded were subjected to selection 5 process and after completing selection test and interview a list of selected candidates for appointment on the 101 post of Artisan Trainee, ITI Fitter, Electrician, Lab Assistant Trainee has been drawn. In this connection, it is also pointed out that perusal of Clause-F of employment policy dated 15.2.1986 would indicate that thereunder itself option is reserved by the NTPC to either call for name from the employment exchange or to proceed with the employment after publishing advertisement for such appointment. In the instant case, the NTPC while proceeding to make appointment against 101 post of Artisan Trainee, ITI Fitter, Electrician Lab Assistant Trainee commenced the appointment process by calling for name from the three employment exchange of Bhagalpur, Lalmatia and Godda under letter dated 17.2.2009, copy whereof was also sent to the District Magistrate, Bhagalpur and Deputy Commissioner, Godda for information and wide publicity amongst all the Mukhiyas as also for display on notice boards and this Court should not take any exception about the fact that employment notice for such employment was not published in the newspaper. Learned counsel with reference to the averments made in the second 6 supplementary counter affidavit submitted that the employment policy dated 15.2.1986 was modified by the NTPC on 28.5.1986, Annexure-R-10 and the modified policy provided that in the skilled category 60% of the post would be reserved for the land oustees. Such reservation, however could not remedy the problem caused by the land oustees, who continued to organize agitation, blockade, bandh, gherao etc. for employment in the NTPC and on many occasion hampered generation of electricity by blocking the dedicated railway line, Merry Goround railway line through which transportation of coal is made from ECL to NTPC. The land oustees obstruct the movement of coal and other raw-materials up to generation unit, which caused disturbance in generation of electricity and loss. The loss assessed by the NTPC for blockade of one day is around 7.42 crores. The problem faced by the NTPC is perennial in nature. In order to prevent such unlawful activity by the land oustees and to maintain industrial peace and harmony, it was decided to make recruitment on the 101 post of Artisan Trainee, ITI Fitter, Electrician and Lab Assistant Trainee exclusively from amongst the land oustees who could not secure employment 7 14 years earlier during the last recruitment conducted at Kahalgaon by relaxing the upper age limit by 12 years. It has further been stated in the second supplementary counter affidavit that from perusal of recommendation No.2.21, Annexure-R-11 it would appear that the NTPC management decided and informed the Petition Committee of the parliament that 101 post of W3 category i.e. Artisan Trainee, ITI Fitter, Electrician and Lab Assistant Trainee at Kahalgaon project is likely to be created on account of commissioning of stage-2 of Kahalgaon project and all these vacancies would be reserved by the NTPC for project affected persons i.e land oustees. It has also been stated in the second supplementary counter affidavit that Petition Committee of the parliament approved the decision of the NTPC to reserve the 101 post of Artisan Trainee, ITI Fitter, Electrician and Lab Assistant Trainee for the land oustees and forwarded its recommendation on 19.1.2009 to the Ministry of Power and NTPC. 3. Learned counsel for the NTPC with reference to the decision of the NTPC to reserve all the 101 posts of Artisan Trainee, ITI Fitter, Electrician and Lab Assistant Trainee to be filled up 8 from amongst the land oustees submitted that as such decision of the NTPC has already been affirmed by the Petition Committee of the parliament this Court may not like to interfere with the appointment and allow the recruitment made on the 101 post from amongst the land oustees to continue. 4. Sri Rajendra Prasad Singh, Senior Advocate appearing for the selectees besides adopting the submission made by the counsel for the NTPC further submitted that this Court should not interfere in the matter at the instance of the two petitioners who being the ward of the land oustees were all along aware about the employment policy of the NTPC dated 15.2.1986, which they have annexed with the writ petition and as they did not choose to get themselves registered before the employment exchange their names were not forwarded from the employment exchange pursuant to requisition dated 17.2.2009 and for their failure to get themselves registered with the employment exchange, writ petition filed by them questioning the selection process undertaken pursuant to requisition dated 17.2.2009 should be rejected as in spite of being aware of the employment policy of the NTPC they did not choose to apply before the employment exchange 9 for employment in the category of land oustee(s). Sri Singh further submitted that the submission of the learned counsel for the petitioners that in the instant selection Article-16 of the Constitution of India has been infracted is also misconceived in view of the fact that the land oustee is a class and selection process was conducted amongst those who belong to the class of land oustees and whose name was forwarded by the employment exchange and this Court should be slow in interfering with the appointment as the present selection process has been conducted after a period of 14 years to mitigate the hardship of the land oustees in the light of the recommendation of the Petition Committee of the parliament. 5. Sri Y.V. Giri, Senior Advocate also appearing for the selectees referred to the statement made in paragraps-8, 9, 10, 11 and 12 of the counter affidavit filed by Sri Kumar Prakash Deep, one of the selected candidate and submitted that NTPC management informed the Petition Committee of parliament that 101 post of W3 category would be reserved for land oustees. In the light of the decision of the NTPC approved by the Petition Committee of parliament names were called from the three 10 employment exchange under letter dated 17.2.2009 and thereafter selection process was conducted from amongst those land oustees whose names were registered and forwarded by the three employment exchange and this Court may not like to interfere with the selection made. In this connection, he referred to Secions-2(d) and 4 of the Employment Exchanges(Compulsory Notification of Vacancies) Act, 1959 and submitted that employment exchange has been established for collection and furnishing of information to the employer and the prospective employee either by keeping of registers or otherwise. He further submitted that once the employment exchange has been established it is the duty of the employer to notify the vacancy in the exchange and to call for the names of the eligible candidates for such employment and as in the instant case employment process has been conducted in the light of the requisition dated 17.2.2009 by which names were called from the three employment exchange i.e. Bhagalpur, Lalmatia and Godda, this Court may not interfere with the selection process on the ground that advertisement for 101 post of Artisan Trainee, ITI Fitter, Electrician and Lab Assistant Trainee was not published in the newspaper. In support of the 11 aforesaid submission Sri Giri relied on the judgment of the Hon’ble Supreme Court in the case of Union of India and Ors. Versus N. Hargopal and Ors., reported in (1987) 3 SCC 308, paragraph-9 and submitted that Hon’ble Supreme Court held that insistence on recruitment through employment exchanges advances rather than restricts the rights guaranteed by Articles-14 and 16 of the Constitution of India. He further submitted that submission that employment exchanges do not reach everywhere applies equally to whatever method of advertising vacancies is adopted. Advertisement in the daily press, for example, is also equally ineffective as it does not reach everyone desiring employment. Sri Giri also relied on the judgment of the Single Judge of this Court in the case of Bharat Ram and others Versus State of Bihar & Anr. reported in 2005(2) PLJR 690, paragraph-7 whereunder learned Single Judge placing reliance on the judgment of the Hon’ble Supreme Court in the case of Arun Tewary and others Versus Zila Mansavi Shikhak Sangh and Ors, reported in AIR 1998 Supreme Court 331 held that it is well settled law that making of appointments by calling for names from the employment exchange and considering the persons 12 registered therein may also be one of the prescribed methods of appointment. It may not be ultimately desirable method but at the same time no fault could be found with such appointment so as to declare them as illegal. 6. Learned counsel for the petitioner in rejoinder submitted that perusal of employment policy dated 15.2.1986, Annexure-R-4 would indicate that the original employment policy of the NTPC was annexed as Annexure-B to the policy dated 15.2.1986, which was subsequently modified under minutes dated 28.5.1986, Annexure-R-10, perusal whereof indicates that thereunder the committee which framed the policy opined that nomination of the employment exchange wherever necessary be invited from the employment exchange and for the purpose a list of nominees of land oustees be prepared and forwarded to the employment exchange and certificate in this respect be received by the NTPC from the employment exchange. With reference to the contents of minutes dated 28.5.1986 learned counsel submitted that it was the responsibility of the NTPC to have prepared the list of land oustees and to forward the list to the employment exchange and to obtain a certificate in 13 this respect from the employment exchange. Had the list of land oustees forwarded by the NTPC to the employment exchange complete list of the wards of all the oustees including the two petitioners should have been received from the employment exchange in response to the requisition dated 17.2.2009 with liberty to the petitioners also to participate in the selection process. 7. Learned counsel for the petitioners further submitted that reliance placed by Sri Giri on the judgment of the Hon’ble Supreme Court in the case of Union of India and Ors. Versus N. Hargopal(Supra) and that of the Single Judge of this Court in the case of Bharat Ram and Ors.(Supra) appears to be misplaced as judgment of the Hon’ble Supreme Court in the case of Union of India and Ors. Versus N. Hargopal(Supra) has been impliedly overruled by the Larger Bench of the Hon’ble Supreme Court in the case of Excise Superintendent Malkapatnam, Krishna District. A.P. Versus K.B.N. Visweshwara Rao and Ors., reported in (1996) 6 Supreme Court Cases 216 where their lordships have categorically held that it is common knowledge that many a candidate is unable to have the names sponsored though their names are either registered 14 or waiting to be registered in the employment exchange, with the result that choice of selection is restricted to only such candidates whose names come to be sponsored by the employment exchange. Under these circumstances, many a deserving candidate is deprived of the right to be considered for appointment to a post. Better view appears to be that it should be mandatory for the requisitioning authority/establishment to intimate the employment exchange and employment exchange should sponsor the names of the candidates to the requisitioning authority for selection. In addition, the appropriate department or undertaking or establishment should call for the names by publication in the newspapers having wider circulations and also display on their office notice boards or announce on radio, television and employment news bulletins and then consider the case of all the candidates who have applied. Learned Single Judge of this Court while approving the selection made through employment exchange in the case of Bharat Ram(Supra) relied on the judgment of Arun Tewary(Supra), which is a judgment rendered by two Hon’ble Judges of the Hon’ble Supreme Court, wherein placing reliance over the judgment of Union of India Versus N. 15 Hargopal(Supra) the Hon’ble Supreme Court approved the selection made through employment exchange but while rendering such judgment the Hon’ble Supreme Court did not notice the earlier judgment of the Larger Bench of the Hon’ble Supreme Court in the case of Excise Superintendent Malkapatnam, Krishna District, A.P.(Supra). In the circumstances, reliance placed by Sri Giri on the judgment of the Hon’ble Supreme Court in the case of Union of India and Ors. Vs. N. Hargopal(Supra) and the judgment of the Single Judge of this Court in the case of Bharat Ram(Supra) appears to be misconceived. Placing reliance on the Judgment in the case of Excise Superintendent Malkapatnam, Krishna District, A.P.(Supra), I hold that selection process conducted by the NTPC for 101 posts of Artisan Trainee, ITI Fitter, Electrician and Lab Assistant Trainee pursuant to requisition dated 17.2.2009 from amongst those whose name was sponsored by the three employment exchange suffers from the vice of not providing adequate opportunity to all the land oustees to participate in the selection process conducted for appointment on the 101 posts of Artisan Trainee, ITI Fitter, Electrician and Lab Assistant Trainee as before proceeding to make such 16 appointment the NTPC neither forwarded the list of land oustees to the three employment exchange nor obtained certificate from the three employment exchange that it had forwarded the complete list of land oustees to the three employment exchange as is provided in the employment policy of the NTPC dated 28.5.1986, Annexure-R-10 nor published advertisement for such appointment in the newspaper. 8. C.W.J.C. No.12471 of 2010 has been filed by the two petitioners asserting that the appointment made by the NTPC pursuant to notification Nos.261, 262 and 263 of 2009 on the 69 post of Artisan Trainee, ITI Fitter, 30 post of Artisan Electrician and 02 post of Lab Assistant Trainee exclusively from amongst the land oustees(project affected persons) is in teeth of the provisions contained in Article 16 of the Constitution of India as according to the petitioners there cannot be 100% reservation exclusively for the land oustee candidates. In this connection, learned counsel pointed out that NTPC was also conscious of the position that there cannot be 100% reservation in favour of the land oustees, in appreciation of such legal position Clause-F was inserted in the 17 employment policy dated 15.2.1986 stating that while making appointment in the skilled category if the land oustees are available and meeting the job specification will be given due preference by allotting to the land oustees 10% weightage in the selection. Aforesaid policy criteria was modified on 28.5.1986 by providing that 60% post in the skilled category would be reserved for the land oustees and remaining 40% for others. It is submitted that aforesaid resolution dated 28.5.1986 of the NTPC granting 60% reservation for the land oustees could not have been changed to 100% with or without the approval of the Petition Committee of parliament as 100% reservation in favour of the land oustees is contrary to the Constitutional norms enshrined under Article 16 of the Constitution, which mandate equality of opportunity for all citizens in matters relating to employment. By reserving all the 101 post of Artisan trainee, ITI Fitter, Electrician and Lab Assistant trainee created on account of commissioning of stage-2 of Kahalgaon project for the land oustees, other citizens have been deprived of opportunity to participate in the selection process, which is contrary to Article-16 of the Constitution. 9. Learned counsel for the NTPC, 18 selectee(s), however defended the 100% reservation in favour of land oustees on the ground that land oustees having suffered deprivation of their land by virtue of its compulsory acquisition have been allowed as a succour 101 post to earn their livelihood, in appreciation of such fact the Petition Committee of parliament also approved such reservation, this Court should not strike down 100% reservation made in favour of the land oustees. 10. Having heard counsel for the petitioners, NTPC and the selectees, I am of the view that the land oustees may be a deprived class as their source of income i.e. land has been subject matter of compulsory acquisition, notwithstanding such acquisition there can not be 100% reservation in favour of land oustees as in terms of Article 16 of the Constitution of India other citizens of India whose land has not been acquired is also to be given equality of opportunity in the matters of public employment. In the case in hand, while making appointment on the 101 post of Artisan Trainee, ITI Fitter, Electrician and Lab Assistant Trainee created on account of commissioning of stage-2 of Kahalgaon project the NTPC should not have granted 100% reservation in favour of land oustees. Such 19 reservation cannot be sustained and on this ground also appointment made on the 101 post of Artisan Trainee, ITI Fitter, Electrician and Lab Assistant Trainee in the light of notification Nos.261, 262 and 263 of 2009 infracts Article 16 of the Constitution of India, which is accordingly, set aside with direction to the NTPC to advertise the 101 post of Artisan Trainee, ITI Fitter, Electrician and Lab Assistant Trainee and fill up the same from amongst the land oustees and others observing the norms enshrined in the Constitution of India and the employment policy of the NTPC as early as possible, in any case within two months from the date of receipt of this order before the Managing Director, NTPC. 11. In C.W.J.C. No.12824 of 2010 petitioners are the wards of land oustees who participated in the selection test for appointment on the post of Artisan Trainee, ITI Fitter, Electrician and Lab Assistant Trainee. It is submitted on their behalf that they succeeded in the selection test but are not being given the appointment letters as they are already employed with Bata India Limited and as Siksha Mitra in the Panchayat. Once they have been allowed to participate in the selection process and have succeeded in the selection they could not be 20 deprived of the opportunity to join the post but as the appointment made on the 101 post has been held to be illegal in the aforesaid two writ cases, no positive order can be passed in favour of these two petitioners. In case, petitioners again apply and participate in the selection process initiated in the light of the direction contained in this order and succeed their appointment cannot be withheld on the ground that they are employed with Bata India Limited and as Siksha Mitra in the panchayat. 12. With the observation and direction aforesaid, the three writ application(s) are disposed of. AFR Rajesh/ ( V. N. Sinha, J.)