Jiten Kumar Sahoo
& Ors. Vs Chief General Manager Mahanadi Coalfields Ltd. & Ors.
JUDGEMENT
R.M. Lodha, J.
Delay condoned in SLP
(Civil) No. 18031 of 2009.
1.
Leave
granted in both petitions.
2.
The
appellants have preferred these two appeals, by special leave, because
consequent upon the judgment and order passed by the High Court of Orissa at
Cuttack, they are likely to lose their job of more than 14 years with the
Mahanadi Coal fields Limited (for short, `MCL').
3.
MCL
is a Government of India undertaking. By the end of 1993, 38 vacancies of
Mazdoors, Category-I (I.T.I.) had occurred in the MCL. MCL sent a requisition
to the local employment exchange for sending a list of eligible candidates for filling
up the said vacancies. The local employment exchange, in response to that
requisition, sponsored 664 candidates. Out of these 664 candidates, 375
candidates submitted their bio data. After scrutiny of the bio data of these
candidates, MCL called 316candidates for the written test. Pursuant thereto,
289 candidates appeared for the same on October 29, 1995.
They were also called
for trade test in different batches during the period December 26, 1995 to
January 5, 1996. Finally, 240 candidates secured qualifying marks. There is a
dispute of fact about merit list as according to the contesting private
respondents (writ petitioners before High Court), a merit list comprising 226
I.T.I. candidates was prepared by the MCL as they were found suitable in all
respects, but MCL denies having prepared a merit list of 226candidates for
employment. However, it is an admitted position that, of the candidates who
secured qualifying marks, 24 were given appointment as Mazdoor Category-I
(I.T.I.). 14 vacancies -5 vacancies in the trade of Auto Electrician and 9
vacancies in Scheduled Caste/ Scheduled Tribe category - could not be filled up
due to non-availability of the candidates. Subsequently, it appears that fresh
84 vacancies of Mazdoor Category-I (I.T.I.) occurred and MCL requested the
local employment exchange for their permission to fill up fresh vacancies from
amongst the candidates who had qualified in the written test and the trade test
conducted as above. There was no response from the local employment exchange to
that requisition and, accordingly, MCL filled up 51 vacancies out of 84 fresh
vacancies by giving employment to those candidates who had already undergone
the apprenticeship with them in the year 1991-92. The present appellants are
amongst those candidates.
4.
The
private respondents herein and few others aggrieved by the appointment of the
appellants and some others to the posts of Mazdoor - Category I (I.T.I.) having
been given preference as they had undergone the apprenticeship with the MCL,
filed various writ petitions before the High Court of Orissa. They prayed that
appointments given to 51 such appointees be quashed. They also prayed for their
(writ petitioners') absorption in the vacant posts without calling them to
appear for fresh written test and/or interview.
5.
MCL
and its functionaries who were impleaded as respondents in the writ petition
filed their counter affidavit and contested the writ petitions on diverse
grounds. The defence of the MCL was that the preference was given to the
apprentices who had undergone training with them in the interest of the company
as coal mines use very specific and specialized high value heavy earth moving
machines like dragline, shovel, dumpers, heavy duty dazers, drills and craines
and those who have been extensively trained on these machines are of much use
than the candidates who were trained in other industries not dealing with heavy
earth moving machines. MCL justified their action on the basis of a decision of
this Court in U.P. State Road Transport Corporation and Another v. U.P.
Parivahan Nigam Shishukhs Berozgar Sangh and Others1. It was submitted by MCL
that the preference to MCL apprentices was not influenced by any consideration
other than the interest of the company.
6.
It
is pertinent to mention here that neither the appellants nor others whose
appointments were challenged in the writ petitions were impleaded initially. It
was after 10 years or so that the present appellants were impleaded as party
respondents in the writ petitions. On their impleadment and service of notice, the
present appellants filed their counter affidavit in opposition to the writ
petitions and denied the claim of the writ petitioners.
7.
The
High Court vide its judgment dated May 2, 2008,however, held that MCL ought to
have filled up the newly sanctioned 51 posts of Mazdoor - Category I (I.T.I.)
from the merit list prepared earlier strictly in the order of merit and no preference
could have been given to those who had undertaken apprenticeship with MCL. The
High Court, accordingly, directed MCL to fill up 51 posts strictly in the order
of merit as per the select list prepared earlier. The High Court further
directed that those who were likely to lose their job could be adjusted in suitable
posts in the existing and future vacancies without asking them to face any
recruitment test. It is this judgment and order of the High Court which is
impugned in these two appeals.
8.
In
our judgment, these appeals have to be allowed. There is no dispute of fact
that the appellants herein were not initially impleaded as party respondents in
the writ petitions although primary relief in the writ petitions was to quash
their selection and appointments. The appellants were impleaded for the first
time after ten years or so. By that time the appellants got promoted from
Mazdoor Category-I to Mazdoor Category-II and then to Mazdoor Category-III and
thereafter to the posts of Fitter. In view of these circumstances, the writ
petitioners were not entitled to any discretionary relief by the High Court in exercise
of its extraordinary jurisdiction.
9.
The
appellants in their counter affidavit before the High Court set up the
following specific grounds: "That the petitioners have impleaded the present
Opp. Parties after about 10 (ten) years of their appointment as well as
selection to the post of Mazdoor Category-I (ITI). Therefore the writ application
is liable to be dismissed as against the present Opp. Parties being grossly
barred by limitation and on the ground of unexplained delay, latches and
negligence of the petitioner. That the petitioners though had the knowledge of the
appointment, posting, continuance in service and subsequent promotions of the
Opp. Parties had not challenged the same for about 10 (Ten) years and have
acquiescence their claim and waived their claim if any. Therefore, this Hon'ble
Court in exercise of its equitable jurisdiction may be pleased to dismiss the
writ application. That the petitioners are estopped by acquiescence, waiver,
conduct and by negligence to challenge the appointment of the Opp. Parties who
are discharging their duties sincerely to the best satisfaction of the
authority being selected and appointed to the post for about ten years."
10.
The
High Court unfortunately has failed to take into consideration the material
aspects stated in the counter affidavit filed by the appellants. As a matter of
fact, on promotion of the appellants to the higher posts, other candidates have
been appointed to the posts of Mazdoor - Category I in place of the appellants.
If the order of the High Court is allowed to stand, it would not only affect
the appellants who, during the continuation of their service, had got three
promotions, but also will seriously affect the persons who have been appointed
in their place and were not impleaded before the High Court.
11.
For
what we have discussed above, we do not think we need to deal with the merits
of the issue as to whether the High Court was right in holding that MCL could
not have preferred to give appointments to those who had undertaken training
with them.
12.
The
appeals are, accordingly, allowed; the judgment and order dated May 2, 2008
passed by the High Court of Orissa, Cuttack is set aside. The parties shall
bear their own costs.
.........................J.
(Aftab Alam)
........................
J. (R.M. Lodha)
NEW
DELHI.
JANUARY
27, 2011
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