Writ Appeal filed under Clause 15 of the Letters Patent against the order in W.P.No.3490 of 1999.
These are all the writ appeals filed against the order made in W.P.No.3490 of 1999 etc., batch dated 12.10.1999, wherein this Court, in respect of the persons, from whom lands have been acquired for the purpose of the appellant Corporation in which employment opportunity was sought for, passed an order and In paragraph-19, it is held as follows:-
" 19. Under these circumstances, considering all the above aspects, I hereby issue following directions:
1. No recruitment to Clause III or Clause IV or other lower clauses shall be made in the 4th respondent LPG Bottling Plant, SIPCOT Industrial Complex, Gummidipoondi or in the office of the 5th respondent at Chennai in respect of the said clauses till one appointment to each of the displaced family is provided for;
2. The third respondent Project Officer, SIPCOT Industrial Complex, Gummidipooindi is directed to take out a list of total number of families as on date of handing over all the lands to respondents 4 and 5 with reference to Revenue Records, verify all such persons who have already been employed with reference to each family and furnish a list of family who have not been employed in the 4th respondent till date;
3. Persons whose families have been displaced by acquisition and who have not been provided with any employment who shall submit their applications to the third respondent herein and on receipt of the same after records, third respondent is directed to forward the same to the 4th respondent;
4. On receipt of the list of displaced families who have not been provided with employment/appointment from third respondent, 4th respondent shall make every effort to provide them suitable employment ;
5. Wherever necessary the 4th respondent shall relax the age and qualification of the member of such displaced family;
6. In any case if the 4th respondent is not in a position to employ those persons for want of vacancies they are directed to keep the list of those persons and to consider them as and when any future vacancy arises either in their plant at 4th respondent or in their regional office at Chennai;
7. It is made clear that all the applicants have to obtain -
(a) a certificate from the Special Tahsildar (LA) SIPCTOR Gummidipoondi that he/she is one of the affecter persons as per G.O.Ms.No.656, Labour and Employment Department, dated 29.6.1978;
(b) A certificate from SIPCOT to show that their lands have been acquired by the SIPCOT and allotted to Hindustan Petroleum Corporation ;
(c ) The Certificate from Tahsildar to show that the applicant is the legal heir of affected land owner ;
(d) The Certificate from Tahsildar to show that except the lands acquired the family is not having any other land for their livelihood.
8. The said order is applicable not only to the petitioners, but also to other persons who have parted their lands and not provided employment as stated above subject to fulfilling all the conditions referred to above."
2. It is submitted by the learned counsel on either side that the earlier decision of E.Padmanabhan,J dated 22.11.2002 in W.P.Nos.18599 of 1998 etc., batch relied on by the Writ Court granting the relief has been taken on appeal to the Division Bench and the Division Bench by its order dated 29.4.2008 made in W.A.Nos.979 to 992 of 2003 and 2312 to 2319 of 2003, after referring to the Constitution Bench judgments of the Apex Court in SECRETARY, STATE OF KARNATAKA AND OTHERS VS. UMADEVI AND OTHERS (2006(4) SCC 1) and SURINDER PRASAD TIWARI VS. ;LU.P.RAJYA KRISHI UTPADAN MANDI PARISHAD AND OTHERS (2006 (7) SCC 684), about the adherence of the rule of equality in public appointment by quoting the observation of the judgment of the Supreme Court to the effect that "in view of the clear and unambiguous constitutional scheme, the courts cannot countenance appointments to public office which have been made against the constitutional scheme. In the backdrop of constitutional philosophy, it would be improper for the courts to give directions for regularisation of services of the person who is working either as daily-wager, ad hoc employee, probationer, temporary or contractual employee, not appointed following the procedure laid down under Articles 14, 16 and 309 of the Constitution. In our constitutional scheme, there is no room for back door entry in the matter of public employment." has held that the Division Bench was unable to agree with the view taken by the learned single Judge and allowed the appeal and set aside the order of the learned single Judge giving direction for appointment to the displaced persons.
3. In a similar set of facts, a direction issued by a learned single Judge of the Allahabad High Court, Lucknow Bench to the Hindustan Petroleum Corporation Limited directing the opposite party therein to appoint the writ petitioners in Class IV post within a period of two months from the date of production of copy of the order and the further direction that in case no vacancy exists, the opposite parties would create posts and appoint the petitioners anywhere in the State of U.P, from whom the lands were acquired for the purpose of the Corporation was also set aside by the Apex Court by the latest order in Civil Appeal Nos.126-127 of 2002 dated 12.12.2007 wherein the Supreme Court observed as follows:
"...At the outset we may observe that giving preference in the matter of employment does not entitle a person for appointment. Therefore the direction given by the learned Single Judge in order dated 12.3.1993 in Writ Petition No.11133/1990 to create posts and give employment to the writ petitioners, which has been followed in the impugned orders, is without jurisdiction. It is well settled that the Court cannot create a post, as that is a purely executive or legislative function. Giving preference in the matter of employment mean that all other things being equal the writ petitioners should have been given appointment over and above other persons but it can never mean creation of posts and appointing them against the said posts. Therefore, the High Court was totally wrong in directing to create posts for the writ petitioners and accommodating them in the said posts. Each public sector corporation has its limitations and it cannot go beyond their means. They have to maintain their fiscal discipline also. As a matter of fact, the respondents have already been benefited by giving them compensation for the land acquired. Therefore, over and above this they have no right to claim appointment. However, as a social measure the appellant corporation thought that one person from each family may be given preference in the matter of employment provided other things are equal. It is clear that the learned Single Judge has gone beyond his jurisdiction and as such the direction given by the impugned order cannot be sustained.
Moreover, in the changed situation also when there is no vacancy available in the bottling plant at Unnao, no direction can be given to the appellant corporation to give preference to the respondents in the matter of appointment. It is unnecessary to give any such direction when the factual aspect is before us and it is clear that no vacancy is available and nor is there any likely to be in future as the persons from the bottling plant at Shakurbasti, New Delhi which was closed down have been absorbed in the Unnao Plant. The learned Addl.Solicitor General appearing for the appellant corporation also submitted that because of automation of the bottling plant even the people presently employed have become surplus. In the above facts and circumstances, we cannot give any direction to the appellant corporation to give preference to the respondents in the matter of appointment or create any posts for them.
4. The above observation of the Supreme Court squarely applies to the facts of the present case. The counsel appearing for the respondent also accept that the decision of the Supreme Court covers the issue on hand.
5. In view of the fact that the order of the learned single Judge E.Padmanabhan,J. which has been followed in the impugned order has been reversed by the Division Bench of this Court in the case of BHARAT PETROLEUM CORPORATION LTD. VS. PARVATHI AMMAL, (W.A.Nos.979 to 992 of 2003 and 2312 to 2319 of 2003), dated 29.4.2008 and in the light of the decision of the Supreme Court in the case of HINDUSTAN PETROLEUM CORPORATION LIMITED VS. KAMLESH KUMAR (Civil Appeal Nos.126-127/2002 etc., batch) dated 12.12.2007, we are of the view that these appeals have to be allowed and as such the writ appeals are allowed and the order passed by the learned single Judge is set aside by dismissing the writ petitions. However, there is no order as to costs. Consequently, the connected miscellaneous petitions are also dismissed.
kb/usk To
1. The Secretary to the Government Industries Department State of Tamil Nadu Fort St. George Chennai 600 009.
2. The Special Tahsildar (LA) SIPCOT Gummidipundi.
4. The Project Officer SIPCOT SIPCOT Industrial Complex Gummidipundi