High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 10.8.2009CORAMTHE HONOURABLE MR. JUSTICE K. RAVIRAJA PANDIANANDTHE HONOURABLE MR. JUSTICE T. RAJAWRIT APPEAL NOS.740 TO 762 OF 2000,792 AND 793 OF 2000ANDC.M.P.NOS.7133 TO 7155 OF 2000, 7399, 7400, 7132 AND 7398 OF 2000W.A.No.740 of 2000:-1. The Personnel Manager Hindustan Petroleum Corporation Ltd., LPG Bottling Plat SIPCOT Industrial Complex Gummidipundi – 603 201.2. The Chief Manager (P&A) Hindustan Petroleum Corporation Ltd., Thalamuthu Natarajan Buildings 8, Gandhi Irwin Road P.B.No.3045 Egmore, Chennai – 600 003.... Appellants inall WAs.Vs.Thulukkanam.. Ist Respondent in WA.740/00/PetitionerDhanapal.. Ist Respondent in WA.741/00/PetitionerBalaraman @ Munusamy.. Ist Respondent in WA.742/00/PetitionerM.Chandran.. Ist Respondent in WA.743/00/PetitionerRathina Reddy.. Ist Respondent in WA.744/00/PetitionerKistappa.. Ist Respondent in WA.745/00/PetitionerP.Velu.. Ist Respondent in WA.746/00/PetitionerD.Elumalai.. Ist Respondent in WA.747/00/PetitionerGovindaraj.. Ist Respondent in WA.748/00/PetitionerMohan.. Ist Respondent in WA.749/00/PetitionerP.Kathirvel.. Ist Respondent in WA.750/00/PetitionerM.Subramani.. Ist Respondent in WA.751/00/PetitionerT.Arumugam.. Ist Respondent in WA.752/00/PetitionerT.Elumalai.. Ist Respondent in WA.753/00/PetitionerKamatchi.. Ist Respondent in WA.754/00/PetitionerS.Elumalai.. Ist Respondent in WA.755/00/Petitioner https://hcservices.ecourts.gov.in/hcservices/ Chandriah Chetty.. Ist Respondent in WA.756/00/PetitionerS.Muthu.. Ist Respondent in WA.757/00/PetitionerD.Thanikachalam.. Ist Respondent in WA.758/00/PetitionerS.Elumalai.. Ist Respondent in WA.759/00/PetitionerSivakanthammal.. Ist Respondent in WA.760/00/PetitionerVeerasamy.. Ist Respondent in WA.761/00/PetitionerParamasivam.. Ist Respondent in WA.762/00/PetitionerRajagopal Reddy.. Ist Respondent in WA.792/00/PetitionerSubramani.. Ist Respondent in WA.793/00/Petitioner2. The State of Tamil Nadu rep. by its Secretary to the Government Industries Department Fort St. George, Chennai – 600 009.3. The Special Tahsildar (LA) SIPCOT Gummidipundi.4. The Project Officer SIPCOT SIPCOT Industrial Complex Gummidipundi.... Respondents 2 to 4 in all WAs.Writ Appeal filed under Clause 15 of the Letters Patent againstthe order 12.10.99 in W.P.No.3490/99,3497,3500,3501,3505,3790,3801,3847,3858,4212,4213, 4216,4226,4723,4731,5446,6930,10559,11601,11602,11603,11604,11605,3831,8254/99These W.Ps. filed under Article 226 of the Constitution of Indiapraying to issue a 'Writ of Mandamus' directing the respondents tofulfill their promises by providing suitable employment to the(a) Petitioner's Son T.Thangarajan (WP.3490/99)(b) Petitioner's Son D.Ellappan (WP.3497/99)(c) Petitioner's Son M.Selvaraj (WP.3500/99)(d) Petitioner's daughter C.Kalpana (WP.3501/99)(e) Petitioner's Son R.SoundarRajan (WP.3505/99)(f) Petitioner's Son K.Venu (WP.3790/99)(g) Petitioner's Son Dayalan (WP.3801/99)(h) Petitioner's Brother's Son T.Kathiravan (WP.3847/99)(i) Petitioner Govindaraj (WP.3858/99)(j) Petitioner Mohan (WP.4212/99)(k) Petitioner's Son Murugan (WP.4213/99)(l) Petitioner M.Subramani (WP.4216/99)(m) Petitioner's Brother-in-law Nandagopal (WP.4226/99)(n) Petitioner T.Elumalai (WP.4723/99)(o) Petitioner's Son-in-law D.Vasu (WP.4731/99)(p) Petitioner's Brother S.Chandran (WP.5446/99)(q) Petitioner's Son P.C.Sekar (WP.6930/99)(r) Petitioner's daughter Rathika (WP.10559/99) https://hcservices.ecourts.gov.in/hcservices/ (s) Petitioner's Brother's Son Sasikumar (WP.11601/99)(t) Petitioner's Wife E.Sumathy (WP.11602/99)(u) Petitioner's Brother's Son M.Mahendran (WP.11603/99)(v) Petitioner's Brother's Son K.Babu (WP.11604/99)(w) Petitioner's Son Thirunavukkarasu (WP.11605/99)(x) Petitioner's Grand Son Sekar (WP.3831/99)(y) Petitioner's Son Thulukkanam (WP.8254/99)respectively in the 4th respondent LPG Bottling Plant,Gummidipundi,under land affected category.For Appellants : Mr. C. Mohan for M/s.King & PatridgeFor Respondent No.1 : Mr. Venkatesan for Mr. Ajmal KhanFor Respondent Nos.2 to 4 : Mr. K. Balasubramaniam, Spl.G.P.COMMON JUDGMENT(Judgment of the Court was delivered byK. Raviraja Pandian, J.)These are all the writ appeals filed against the order made inW.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 forthe purpose of the appellant Corporation in which employmentopportunity was sought for, passed an order and In paragraph-19, itis held as follows:-" 19. Under these circumstances, considering all the above aspects, Ihereby issue following directions:1. No recruitment to Clause III or Clause IV or other lowerclauses shall be made in the 4th respondent LPG Bottling Plant, SIPCOTIndustrial Complex, Gummidipoondi or in the office of the 5threspondent at Chennai in respect of the said clauses till oneappointment to each of the displaced family is provided for;2. The third respondent Project Officer, SIPCOT IndustrialComplex, Gummidipooindi is directed to take out a list of totalnumber of families as on date of handing over all the lands torespondents 4 and 5 with reference to Revenue Records, verify allsuch persons who have already been employed with reference to eachfamily and furnish a list of family who have not been employed in the4th respondent till date;3. Persons whose families have been displaced by acquisition andwho have not been provided with any employment who shall submit theirapplications to the third respondent herein and on receipt of the https://hcservices.ecourts.gov.in/hcservices/ same after records, third respondent is directed to forward the sameto the 4th respondent;4. On receipt of the list of displaced families who have notbeen provided with employment/appointment from third respondent, 4threspondent shall make every effort to provide them suitableemployment ;5. Wherever necessary the 4th respondent shall relax the age andqualification of the member of such displaced family;6. In any case if the 4th respondent is not in a position toemploy those persons for want of vacancies they are directed to keepthe list of those persons and to consider them as and when any futurevacancy arises either in their plant at 4th respondent or in theirregional office at Chennai;7. It is made clear that all the applicants have to obtain -(a) a certificate from the Special Tahsildar (LA) SIPCTORGummidipoondi that he/she is one of the affecter persons as perG.O.Ms.No.656, Labour and Employment Department, dated 29.6.1978;(b) A certificate from SIPCOT to show that their lands have beenacquired by the SIPCOT and allotted to Hindustan PetroleumCorporation ;(c ) The Certificate from Tahsildar to show that the applicantis the legal heir of affected land owner ;(d) The Certificate from Tahsildar to show that except the landsacquired the family is not having any other land for theirlivelihood.8. The said order is applicable not only to the petitioners, butalso to other persons who have parted their lands and not providedemployment as stated above subject to fulfilling all the conditionsreferred to above."2. It is submitted by the learned counsel on either side thatthe earlier decision of E.Padmanabhan,J dated 22.11.2002 inW.P.Nos.18599 of 1998 etc., batch relied on by the Writ Courtgranting the relief has been taken on appeal to the Division Benchand the Division Bench by its order dated 29.4.2008 made inW.A.Nos.979 to 992 of 2003 and 2312 to 2319 of 2003, after referringto 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 MANDIPARISHAD AND OTHERS (2006 (7) SCC 684), about the adherence of therule of equality in public appointment by quoting the observation of https://hcservices.ecourts.gov.in/hcservices/ the judgment of the Supreme Court to the effect that "in view of theclear and unambiguous constitutional scheme, the courts cannotcountenance appointments to public office which have been madeagainst the constitutional scheme. In the backdrop of constitutionalphilosophy, it would be improper for the courts to give directionsfor regularisation of services of the person who is working either asdaily-wager, ad hoc employee, probationer, temporary or contractualemployee, not appointed following the procedure laid down underArticles 14, 16 and 309 of the Constitution. In our constitutionalscheme, there is no room for back door entry in the matter of publicemployment." has held that the Division Bench was unable to agreewith the view taken by the learned single Judge and allowed theappeal and set aside the order of the learned single Judge givingdirection for appointment to the displaced persons.3. In a similar set of facts, a direction issued by a learnedsingle Judge of the Allahabad High Court, Lucknow Bench to theHindustan Petroleum Corporation Limited directing the opposite partytherein to appoint the writ petitioners in Class IV post within aperiod of two months from the date of production of copy of the orderand the further direction that in case no vacancy exists, theopposite parties would create posts and appoint the petitionersanywhere in the State of U.P, from whom the lands were acquired forthe purpose of the Corporation was also set aside by the Apex Courtby the latest order in Civil Appeal Nos.126-127 of 2002 dated12.12.2007 wherein the Supreme Court observed as follows:"...At the outset we may observe that giving preference in the matterof employment does not entitle a person for appointment. Thereforethe direction given by the learned Single Judge in order dated12.3.1993 in Writ Petition No.11133/1990 to create posts and giveemployment to the writ petitioners, which has been followed in theimpugned orders, is without jurisdiction. It is well settled that theCourt cannot create a post, as that is a purely executive orlegislative function. Giving preference in the matter of employmentmean that all other things being equal the writ petitioners shouldhave been given appointment over and above other persons but it cannever mean creation of posts and appointing them against the saidposts. Therefore, the High Court was totally wrong in directing tocreate posts for the writ petitioners and accommodating them in thesaid posts. Each public sector corporation has its limitations and itcannot go beyond their means. They have to maintain their fiscaldiscipline also. As a matter of fact, the respondents have alreadybeen benefited by giving them compensation for the land acquired.Therefore, over and above this they have no right to claimappointment. However, as a social measure the appellant corporationthought that one person from each family may be given preference inthe matter of employment provided other things are equal. It is clearthat the learned Single Judge has gone beyond his jurisdiction and assuch the direction given by the impugned order cannot be sustained. https://hcservices.ecourts.gov.in/hcservices/ Moreover, in the changed situation also when there is no vacancyavailable in the bottling plant at Unnao, no direction can be givento the appellant corporation to give preference to the respondents inthe matter of appointment. It is unnecessary to give any suchdirection when the factual aspect is before us and it is clear thatno vacancy is available and nor is there any likely to be in futureas the persons from the bottling plant at Shakurbasti, New Delhiwhich was closed down have been absorbed in the Unnao Plant. Thelearned Addl.Solicitor General appearing for the appellantcorporation also submitted that because of automation of the bottlingplant even the people presently employed have become surplus. In theabove facts and circumstances, we cannot give any direction to theappellant corporation to give preference to the respondents in thematter of appointment or create any posts for them. 4. The above observation of the Supreme Court squarely appliesto the facts of the present case. The counsel appearing for therespondent also accept that the decision of the Supreme Court coversthe issue on hand. 5. In view of the fact that the order of the learned singleJudge E.Padmanabhan,J. which has been followed in the impugned orderhas been reversed by the Division Bench of this Court in the case ofBHARAT PETROLEUM CORPORATION LTD. VS. PARVATHI AMMAL, (W.A.Nos.979to 992 of 2003 and 2312 to 2319 of 2003), dated 29.4.2008 and in thelight of the decision of the Supreme Court in the case of HINDUSTANPETROLEUM CORPORATION LIMITED VS. KAMLESH KUMAR (Civil AppealNos.126-127/2002 etc., batch) dated 12.12.2007, we are of the viewthat these appeals have to be allowed and as such the writ appealsare allowed and the order passed by the learned single Judge is setaside by dismissing the writ petitions. However, there is no order asto costs. Consequently, the connected miscellaneous petitions arealso dismissed.Sd/-Asst.Registrar/True Copy/Sub.Asst.Registrarkb/uskTo1. The Secretary to the Government Industries Department State of Tamil Nadu Fort St. George, Chennai – 600 009. https://hcservices.ecourts.gov.in/hcservices/

2. The Special Tahsildar (LA) SIPCOT Gummidipundi.3. The Project Officer SIPCOT SIPCOT Industrial Complex Gummidipundi.4. The Personnel Manager Hindustan Petroleum Corporation Ltd., LPG Bottling Plat SIPCOT Industrial Complex Gummidipundi – 603 201.5. The Chief Manager (P&A) Hindustan Petroleum Corporation Ltd., Thalamuthu Natarajan Buildings 8, Gandhi Irwin Road P.B.No.3045 Egmore, Chennai – 600 003.+ 2 cc to M/s.King & Patridge,SR.37234+ 1 cc to Government Pleader,SR.37046W.A.Nos.740 to 762 of 2000 & 792 & 793 of 2000CK(CO)EM/28.8.09