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2010 DIGILAW 2115 (PAT)

N. T. P. C. Kahalgaon v. Nakul Das

2010-09-12

SHIVA KIRTI SINGH, SHIVAJI PANDEY

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ORDER : Heard the parties. 2. The writ petitioners are belonging to both the groups, some are from the family of land oustees, that is, those whose lands were acquired by the State for National Thermal Power Corporation Limited (NTPC for brevity) for establishing Kahalgaon Thermal Power project, and some are outsiders. They are aggrieved by selection and appointment of 101 persons in W/3 grade posts. 3. The writ court has interfered with selection and appointment on two grounds. Firstly, on the ground that the method for calling applications was only through employment exchange which in the opinion of the writ court was not sufficiently fair and should have been through newspaper advertisement also. Secondly, the plea of the writ petitioners that there should not have been 100 % reservation in favour of land oustees has also found favour with the writ court. 4. Learned counsel for the NTPC submitted that pursuant to policy for accommodating land oustees framed in the year 1986, earlier recruitment was made through employment exchange only and hence, the impugned selection process was also through employment exchange. It was further submitted that policy itself permits filling up posts of settlees through employment exchange also. Same stand has been taken on behalf of the appointees whose appointments have been challenged by the writ petitioners. 5. Learned counsels for the NTPC as well as the appointees have also questioned the decision of the writ court on the ground of reservation up to 100 % as not being permissible. It has been submitted that the posts available in the present instance have been earmarked only for land oustees on the recommendation of a Committee of Parliament by way of special drive so that the local people whose lands were acquired may not feel dissatisfied and may not unnecessarily attempt to interrupt the work of the NTPC. It was pointed out that 100% reservation or any reservation beyond 50% is not permitted on account of judgements of the Supreme Court which have clarified that under Article 16 (4) of the Constitution of India inadequacy of representation can be a good ground for providing reservation only up to 50%. It was pointed out that 100% reservation or any reservation beyond 50% is not permitted on account of judgements of the Supreme Court which have clarified that under Article 16 (4) of the Constitution of India inadequacy of representation can be a good ground for providing reservation only up to 50%. In the present case, it was pointed out that the issue of reservation under Article 16 is not involved at all and the only issue to be seen is whether the land oustees constitute a special class for whom special policy can be envisaged and implemented. 6. Learned counsels for the writ petitioners have supported the judgement of the writ court on both the aforesaid issues. 7. Having considered the rival submissions as well as the main issue involved in these cases, we are of the considered view that the writ court has correctly held that in absence of newspaper advertisement, the requirement of notice to all eligible persons will not be fully satisfied. This view has been supported by the judgement of the Supreme Court in the case of Excise Superintendent, Malkapatnam Vs. K. B. N. Vishweshwara Rao (1996) 6 SCC 216 . In that judgement the Supreme Court held that restricting the selection only to the candidates sponsored by employment exchange was not proper; in addition to requisitioning the names from employment exchange, names should also be called for by publication in newspapers or, if required, even by announcing on radio and television etc. The special category of land oustees, after a lapse of 25 years, may be scattered even outside the district of Bhagalpur and, hence, in our view, in the facts of the case, requisition only through employment exchange was not sufficient. The direction of the writ court to NTPC to give opportunity to other eligible persons by advertisement in newspapers, in our view, is in accordance with requirements of Articles 14 and 16 of the Constitution of India. Hence, we uphold that part of the judgement of the writ court. 8. The direction of the writ court to NTPC to give opportunity to other eligible persons by advertisement in newspapers, in our view, is in accordance with requirements of Articles 14 and 16 of the Constitution of India. Hence, we uphold that part of the judgement of the writ court. 8. So far as issue of limiting the available 101 vacancies only to 50 % for land oustees is concerned, we find sufficient merit in the submissions advanced on behalf of NTPC and the appointees that the policy decision to give opportunity of employment to eligible land oustees in respect of presently available 101 vacancies does not amount to reservation in terms of Article 16 (4) of the Constitution of India. It is a policy decision in ORDER :to compensate for the loss which the land oustees have suffered and, hence, they are clearly a special class for which a special policy decision can be formulated. Such policy decision, in our view, cannot be treated as reservation on the lines of reservation provided to backward classes on account of non representation in a particular service. Hence, in our view, restriction of 50% by treating the policy to be a policy of reservation is not applicable and not justified. Hence, this decision of the writ court on this issue is set aside. As a result the NTPC will be entitled to issue further advertisement in newspapers so as to give opportunity of making applications to eligible land oustees for filling up 101 posts of W/3 grade as per prevailing practice and policy meant for land oustees. This exercise should be done expeditiously, preferably, within four months. Cases of those who were earlier appointed but whose selection and appointments have been declared illegal, shall also be considered afresh in accordance with law along with those who may apply in response to newspaper advertisements. The judgement and ORDER :under appeal is modified to aforesaid extent. All the appeals are disposed of accordingly.