REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  1043     OF 2011 (Arising out of SLP(C) No. 14784 of 2008)

Jiten Kumar Sahoo & Ors.        …Appellants

Versus   Chief General Manager Mahanadi Coalfields Ltd. & Ors.   ...Respondents

WITH

CIVIL APPEAL NO.  1044    OF 2011 (Arising out of SLP(C) No. 18031 of 2009)

JUDGEMENT

R.M. Lodha, J.

Delay condoned in  SLP (Civil)  No.  18031 of  2009.  

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 Coalfields  

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  biodata.  

After scrutiny of the biodata of these candidates, MCL called 316  

candidates 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.  

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candidates was prepared by the MCL as they were found suitable  

in all respects, but MCL denies having prepared a merit list of 226  

candidates 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  

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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  

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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  1 (!995) 2 SCC 1

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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:  

“5. 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.

6. That  the  petitioners  though  had  the  knowledge  of  the  appointment,  posting,  

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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.

7. 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  

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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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